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EXHIBIT 10.20
MassMutual
The Blue Chip Company(SM)
OFFICE LEASE
BY AND BETWEEN
MASSMUTUAL AND
SUBURBAN LODGES OF AMERICA, INC.
For: 1000 Parkwood Circle
Suite 400
Atlanta, Georgia 30339
A "MASSMUTUAL" PROPERTY
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OFFICE LEASE
THIS LEASE, is made as of this _____ day of _______________, 1997 by and
between MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation
("Landlord") through its agent CORNERSTONE REAL ESTATE ADVISERS, INC., having an
address at 1050 Crown Pointe Parkway, Suite 1780, Atlanta, Georgia 30338 and
SUBURBAN LODGES OF AMERICA, INC., a Georgia corporation ("Tenant") having its
principal office at 1000 Parkwood Circle, Atlanta, Georgia 30339.
INDEX
ARTICLE TITLE
1. Basic Provisions
2. Premises, Term and Commencement Date
3. Rent
4. Taxes and Operating Expenses
5. Landlord's Work, Tenant's Work, Alterations and Additions
6. Use
7. Services
8. Insurance
9. Indemnification
10. Casualty Damage
11. Condemnation
12. Repair and Maintenance
13. Inspection of Premises
14. Surrender of Premises
15. Holding Over
16. Subletting and Assignment
17. Subordination, Attornment and Mortgagee Protection
18. Estoppel Certificate
19 Defaults
20. Remedies
21. Quiet Enjoyment
22. Accord and Satisfaction
23. Security Deposit
24. Brokerage Commission
25. Force Majeure
26. Parking
27. Hazardous Materials
28. Additional Rights Reserved by Landlord
29 Defined Terms
30. Miscellaneous Provisions
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ARTICLE 1.
BASIC PROVISIONS
A. Tenant's Tradename: Suburban Lodges of America, Inc.
B. Tenant's Address: 1000 Parkwood Circle, Atlanta, Georgia 30339
C. Office Building Name:
Address: 1000 Parkwood Circle, Atlanta, Georgia 30339
D. Premises: Suite/Unit No.: 400
Approximate Square feet (Rentable): 6,486
E. Landlord: Massachusetts Mutual Life Insurance Company
F. Landlord's Address: c/o Cornerstone Real Estate Advisers, Inc.
1050 Crown Pointe Parkway, Suite 1780
Atlanta, GA 30338
G. Building Manager/Address: Carter & Associates, 1275 Peachtree Street
Atlanta, Georgia 30367
H. Commencement Date: August 1, 1997
I. Expiration Date: August 31, 2000
J. Security Deposit: $11,215.38
K. Monthly Rent: $11,215.38
L. Operating Expenses Base: Actual 1997 Direct Operating Expenses
M. Tax Base: Actual 1997 Real Estate Taxes
N. Tenant's Pro Rate Share: 3.08%. Tenant's Pro Rata Share shall be
determined by and adjusted by Landlord from time to time (but shall
not be readjusted sooner than the commencement of the second Lease
year), by dividing the Tenant's Rentable Square Feet of the Premises
by the rentable area of the Building and multiplying the resulting
quotient, to the second decimal place, by one hundred.
O. Normal Business Hours of Building:
Monday through Friday: 7:00 a.m. to 7:00 p.m.
Saturday: 8:00 a.m. to 1:30 p.m.
Sunday: -- a.m. to -- p.m.
---- ----
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P. Use: General office use for the purpose of development, management and
administration of hotels and motels.
Q. Brokers: Carter & Associates
R. Parking Fee: NONE
The foregoing provisions shall be interpreted and applied in accordance with the
other provisions of this Lease set forth below. The capitalized terms, and the
terms defined in Article 29, shall have the meanings set forth herein or therein
(unless otherwise modified in the Lease) when used as capitalized terms in other
provisions of the Lease.
ARTICLE 2.
PREMISES, TERM AND COMMENCEMENT DATE
Landlord hereby leases and demises to the Tenant and Tenant hereby takes and
leases from Landlord that certain space identified in Article 1 and shown on a
plan attached hereto as Exhibit A ("Premises") for a term ("Term") commencing on
the Commencement Date and ending on the Expiration Date set forth in Article 1,
unless sooner terminated as provided herein, subject to the provisions herein
contained. The Commencement Date set forth in Article 1 shall be advanced to
such earlier date as Tenant commences occupancy of the Premises for the conduct
of its business. Such date shall be confirmed by execution of the Commencement
Date Confirmation in the form as set forth in Exhibit E. If Landlord delays
delivering possession of the Premises or substantial completion of any
Landlord's Work under Exhibit B, this Lease shall not be void or voidable,
except as provided in Article 5, and Landlord shall have no liability for loss
or damage resulting therefrom.
ARTICLE 3.
RENT
A. MONTHLY RENT. Tenant shall pay Monthly Rent in advance on or before the first
day of each month of the Term. If the Term shall commence and end on a day other
than the first day of a month, the Monthly Rent for the first and last partial
month shall be prorated on a per diem basis. Upon the execution of this Lease,
Tenant shall pay one installment of Monthly Rent for the first full month of the
Term and a prorated Monthly Rent for any partial month which may precede it.
B. ADDITIONAL RENT. All costs and expenses which Tenant assumes or agrees to
pay and any other sum payable by Tenant pursuant to this Lease, including,
without limitation, its shares of Taxes and Operating Expenses, shall be deemed
Additional Rent.
C. RENT. Monthly Rent, Additional Rent, Taxes and Operating Expenses and any
other amounts which Tenant is or becomes obligated to pay Landlord under this
Lease are herein referred to collectively as "Rent", and all remedies
applicable to the nonpayment of Rent shall be
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applicable thereto. Landlord may apply payments received from Tenant to any
obligations of Tenant then accrued, without regard to such obligations as may be
designated by Tenant.
D. PLACE OF PAYMENT, LATE CHARGE, DEFAULT INTEREST. Rent and other charges
required to be paid under this Lease, no matter how described, shall be paid by
Tenant to Landlord at the Building Manager's address listed in Article 1, or to
such other person and/or address as Landlord may designate in writing, without
any prior notice or demand therefor and without deduction or set-off or
counterclaim and without relief from any valuation or appraisement laws. In the
event Tenant fails to pay Rent due under this Lease by the close of business on
the tenth (10th) day of the month or by the tenth (10th) day following the due
date of such payment of Rent if not due on the first day of the month, Tenant
shall pay to Landlord a late charge of ten percent (10%) of the amount overdue.
Any Rent not paid when due shall also bear interest at the Default Rate. This
provision shall in no way be construed to modify Tenant's obligations to pay
Rent on or before the first (1st) day of the month.
ARTICLE 4.
TAXES AND OPERATING EXPENSES
A. PAYMENT OF TAXES AND OPERATING EXPENSES.
(a) Payment of Escalations. It is agreed that during each calendar year of
the Lease Term beginning on January 1, 1998 of the second Lease Year and each
month thereafter during the original Lease Term, or any extension thereof,
Tenant shall pay to Landlord as Additional Rent, at the same time as the Monthly
Rent is paid, an amount equal to one-twelfth (1/12) of Landlord's estimate (as
determined by Landlord in its sole discretion of Tenant's Pro Rata Share of any
projected increase in the Taxes or Operating Expenses for the particular
calendar year of the Lease Term (the "Estimated Escalation Increase"). If during
any calendar year the Estimated Escalation Increase is less than the Estimated
Escalation Increase for the previous calendar year on which Tenant's share of
Taxes and Operating Expenses were based for said year, such Additional Rent
payments, attributable to Estimated Escalation Increase, to be paid by Tenant
for the new Lease Year shall be decreased accordingly; provided, however, in no
event will the Rent paid by Tenant hereunder ever be less than the Monthly Rent.
A final adjustment (the "Escalation Reconciliation") shall be made between the
parties as soon as practicable following the end of each calendar year, but in
no event later than one hundred twenty (120) days after the end of each calendar
year.
(b) Escalation Reconciliation. As soon as practicable following the end of
each calendar year, Landlord shall submit to Tenant a statement setting forth
the Estimated Escalation Increase, if any the ("Escalation Statement").
Beginning with the Escalation Statement for the second calendar year of the
Lease Term, if shall also set forth the Escalation Reconciliation for the
calendar year just completed. To the extent that the increase in either Taxes or
Operating Expenses (the "Operating Expense or Tax Escalation", as applicable) is
greater than the Estimated Escalation Increase upon which Tenant paid Rent
during the calendar year just completed, Tenant shall pay Landlord the
difference in cash within thirty (30) days following receipt by Tenant from
Landlord of the Escalation Statement. If the Operating Expenses or Tax
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Escalation is less, then Tenant shall receive a credit on future Rent owing
hereunder (or cash if there if no future Rent owing hereunder) as the case may
be. Until Tenant receives the Escalation Statement, Tenant's Rent for the new
Lease Year shall continue to be paid at the rate being paid for the particular
Lease Year just completed. Tenant shall commence payment to Landlord of the
monthly installment of Additional Rent on the basis of said Statement beginning
on the first day of the month following the month in which Tenant receives the
Escalation Statement.
(c) Changes in Escalations During Lease Year. In addition to the above, if,
during any particular calendar year, there is a change in the information on
which Landlord based the estimate upon which Tenant is then making its estimated
payment of Taxes and Operating Expenses so that such Estimated Escalation
Increase furnished to Tenant is no longer accurate, Landlord shall be permitted
to revise such Estimated Escalation Increase by notifying Tenant thereof. There
shall be such adjustments made in the Additional Rent on the first day of the
month following the service of such notice on Tenant as shall be necessary by
either increasing or decreasing, as the case may be, the amount of Additional
Rent then being paid by Tenant for the balance of the calendar year; however, in
no event shall nay such decrease result in a reduction of the Rent below the
Monthly Rent. Landlord's and Tenant's responsibilities with respect to the Tax
and Operating Expense adjustments described herein shall survive the expiration
or early termination of this Lease.
B. DISPUTES OVER TAXES OR OPERATING EXPENSES.
(a) Selection of Accountants. If Tenant disputes the amount of an adjustment
or the proposed estimated increase or decrease in Taxes or Operating Expenses,
Tenant shall give Landlord written notice of such dispute within thirty (30)
days after Landlord advises Tenant of such adjustment or proposed increase or
decrease. Tenant's failure to give such notice shall waive its right to dispute
the amounts so determined. Tenant shall also not be entitled to dispute the
foregoing amounts if Tenant is then in default hereunder. If Tenant is entitled
to and timely objects, Tenant shall have the right to engage its own accountants
("Tenant's Accountants") for the purpose of verifying the accuracy of the
statement in dispute, or the reasonableness of the adjustment or estimated
increase or decrease. Tenant must specifically designate the Lease Year(s) that
Tenant intends to audit, which shall be a year within three (3) years of the
date of the audit but must be within the Term of this Lease. If Tenant's
Accountants determine that an error has been made, Landlord and Tenant's
Accountants shall endeavor to agree upon the matter. If they cannot agree within
twenty (20) days from the date Tenant's Accountants commence reviewing
Landlord's records, Landlord and Tenant's Accountants shall jointly select an
independent certified public accounting firm (the "Independent Accountant")
which firm shall conclusively determine whether the adjustment or estimated
increase or decrease is reasonable, and if not, what amount is reasonable. Both
parties shall be bound by such determination. If Tenant's Accountants do not
participate in choosing the Independent Accountant within 20 days of delivery of
notice by Landlord, then Landlord's determination of the adjustment or estimated
increase or decrease shall be conclusively determined to be reasonable and
Tenant shall be bound thereby.
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(b) Payment of Costs. All costs incurred by Tenant in obtaining Tenant's
Accountants and the cost of the Independent Accountant shall be paid by Tenant
unless Tenant's Accountants disclose an error, acknowledged by Landlord (or
found to have conclusively occurred by the Independent Accountant), of more than
ten percent (10%) in the computation of the total amount of Taxes or Operating
Expenses as set forth in the statement submitted by Landlord with respect to the
matter in dispute; in which event Landlord shall pay the reasonable costs
incurred by Tenant in obtaining such audits. No subtenant shall have the right
to conduct an audit and no assignee shall conduct an audit for any period during
which such assignee was not in possession of the Premises.
(c) Continuation of Payments Pending Determination. Tenant shall continue to
timely pay Landlord the amount of the prior year's adjustment and adjusted
Additional Rent determined to be incorrect as aforesaid until the parties have
concurred as to the appropriate adjustment or have deemed to be bound by the
determination of the Independent Accountant in accordance with the preceding
terms. Landlord's delay in submitting any statement contemplated herein for any
Lease Year shall not affect the provisions of this Paragraph, nor constitute a
waiver of Landlord's rights as set forth herein for said Lease Year or any
subsequent Lease Years during the Lease Term or any extensions thereof.
ARTICLE 5.
LANDLORD'S WORK, TENANT'S WORK,
ALTERATIONS AND ADDITIONS
A. LANDLORD'S WORK. Landlord shall construct the Premises in accordance with
Landlord's obligations as set forth in the work letter attached hereto as
Exhibit B, and hereinafter referred to as "Landlord's Work." Landlord will
deliver the Premises to Tenant with all of Landlord's Work completed (except for
minor and non-material punch list items which in Landlord's reasonable judgment
will not delay completion of Tenant's Work, as defined in subparagraph B of this
Article) on or before the date specified in Exhibit B and Tenant agrees
thereupon to commence and complete Tenant's Work on or before the Commencement
Date. If Landlord is delayed in completing Landlord's Work by strike, shortages
of labor or materials, delivery delays or other matters beyond the reasonable
control of Landlord, then Landlord shall give notice thereof to Tenant and the
date on which Landlord is to turn the Premises over to Tenant for Tenant's Work
and the Commencement Date shall be postponed for an equal number of days as the
delay as set forth in the notice. Providing, however, if such delays exceed one
hundred and twenty (120) days, then either Landlord or Tenant upon notice to the
other shall have the right to terminate this Lease without liability to either
party. If the Commencement Date is postponed as aforesaid, Tenant agrees upon
request of Landlord to execute a writing confirming the Commencement Date on
such form as set forth in Exhibit E attached hereto.
B. TENANT'S WORK. On and after the date specified in the immediately preceding
subparagraph A for delivery of the Premises to Tenant for Tenant's Work,
Tenant, at its sole cost and expense, shall perform and complete all other
improvements to the Premises (herein called "Tenant's Work") including, but not
limited to, all improvements, work and requirements
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required of Tenant under the foregoing work letter. Tenant shall complete all of
Tenant's Work in good and workmanlike manner, fully paid for and free from
liens, in accordance with the plans and specifications approved by Landlord and
Tenant as provided in Exhibit C, on or prior to the scheduled Commencement Date.
Tenant shall also have the right during this period to come onto the Premises to
install its fixtures and prepare the Premises for the operation of Tenant's
business. Notwithstanding the fact that foregoing activities by Tenant will
occur prior to the scheduled Commencement Date, Tenant agrees that all of
Tenant's obligations provided for in this Lease shall apply during such period
with the exception of any obligation to pay Rent.
C. ALTERATIONS. Except as provided in the immediately preceding subparagraph,
Tenant shall make no alterations or additions to the Premises without the prior
written consent of the Landlord, which consent Landlord may grant or withhold
in its reasonable discretion.
D. LIENS. Tenant shall give Landlord at least ten (10) days prior written notice
(or such additional time as may be necessary under applicable laws) of the
commencement of any Tenant's Work, to afford Landlord the opportunity of posting
and recording notices of non-responsibility. Tenant will not cause or permit any
mechanic's, materialman's or similar liens or encumbrances to be filed or exist
against the Premises or the Building or Tenant's interest in this Lease in
connection with work done under this Article or in connection with any other
work. Tenant shall remove any such lien or encumbrance by bond or otherwise
within twenty (20) days from the date of their existence. If Tenant fails to do
so, Landlord may pay the amount or take such other action as Landlord deems
necessary to remove any such lien or encumbrance, without being responsible to
investigate the validity thereof. The amounts so paid and costs incurred by
Landlord shall be deemed Additional Rent under this Lease and payable in full
upon demand.
E. COMPLIANCE WITH ADA. Notwithstanding anything to the contrary contained in
this Lease, Landlord and Tenant agree the responsibility for compliance with the
Americans With Disabilities Act of 1990 (the "ADA") shall be allocated as
follows: (i) Landlord shall be responsible for compliance with the provisions of
Title III of the ADA for all Common Areas, including exterior and interior areas
of the Building not included within the Premises or the premises of other
tenants; (ii) Landlord shall be responsible for compliance with the provisions
of Title III of the ADA for any construction, renovations, alterations and
repairs made within the Premises if such construction, renovations, alterations
or repairs are made by Landlord for the purpose of improving the Building
generally or are done as Landlord's Work and the plans and specifications for
the Landlord's Work were prepared by Landlord's architect or space planner and
were not provided by Tenant's architect or space planner; (iii) Tenant shall be
responsible for compliance with the provisions of Title III of the ADA for any
construction, renovations, alterations and repairs made within the Premises if
such construction, renovations, alterations and repairs are made by Tenant, its
employees, agents or contractors, at the direction of Tenant or done pursuant to
plans and specifications prepared or provided by Tenant or Tenant's architect or
space planner.
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ARTICLE 6.
USE
A. USE. Tenant shall use the Premises for the purposes set forth in Article 1(P)
herein, and for no other purpose whatsoever, subject to and in compliance with
all other provisions of this Lease, including without limitation the Building's
Rules and Regulations attached as Exhibit D hereto. Tenant and its invitees
shall also have the non-exclusive right, along with other tenants of the
Building and others authorized by Landlord, to use the Common Areas subject to
such rules and regulations as Landlord in its discretion may impose from time to
time.
B. RESTRICTIONS. Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Premises or do or permit anything to be done in the
Premises which: (a) causes or is liable to cause injury to persons, to the
Building or its equipment, facilities or systems; (b) impairs or tends to impair
the character, reputation or appearance of the Building as a first class office
building; (c) impairs or tends to impair the proper and economic maintenance,
operation and repair of the Building or its equipment, facilities or systems; or
(d) annoys or inconveniences or tends to annoy or inconvenience other tenants or
occupants of the Building.
C. COMPLIANCE WITH LAWS. Tenant shall keep and maintain the Premises, its use
thereof and its business in compliance with all governmental laws, ordinances,
rules and regulations. Tenant shall comply with all Laws relating to the
Premises and Tenant's use thereof, including without limitation, Laws requiring
the Premises to be closed on Sundays or any other days or hours and Laws in
connection with the heath, safety and building codes, and any permit or license
requirements. Landlord makes no representation that the Premises are suitable
for Tenant's purposes.
ARTICLES 7.
SERVICES
A. Climate Control. Landlord shall furnish heat or air conditioning to the
Premises during Normal Business Hours or Building as set forth in Article 1 as
required in Landlord's reasonable judgment for the comfortable use and
occupation of the Premises. If Tenant requires heat or air conditioning at any
other time, Landlord shall use reasonable efforts to furnish such service upon
reasonable notice from Tenant, and Tenant shall pay all of the Landlord's
charges therefor on demand.
The performance by Landlord of its obligations under this Article is subject to
Tenant's compliances with the terms of this Lease including any connected
electrical load established by Landlord. Tenant shall not use the Premises or
any part thereof in a manner exceeding the heating, ventilating or
air-conditioning ("HVAC") design conditions (including any occupancy or
connected electrical load conditions), including the rearrangement of
partitioning which may interfere with the normal operation of the HVAC
equipment, or the use of computer or data processing machines or other machines
or equipment in excess of that normally required for a standard office use of
the Premises. If any such use requires changes in the HVAC or plumbing
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systems or controls servicing the Premises or portions thereof in order to
provide comfortable occupancy, such changes may be made by Landlord at Tenant's
expense and Tenant agrees to promptly pay any such amount to Landlord as
Additional Rent.
B. ELEVATOR SERVICE. If the Building is equipped with elevators, Landlord,
during Normal Business Hours of Building, shall furnish elevator service to
Tenant to be used in common with others. At least one elevator shall remain in
service during all other hours. Landlord may designate a specific elevator for
use as a service elevator.
C. JANITORIAL SERVICES. Landlord shall provide janitorial and cleaning services
to the Premises, substantially as described in Exhibit D attached hereto. Tenant
shall pay to Landlord on demand the reasonable costs incurred by Landlord for
(i) any cleaning of the Premises in excess of the specifications in Exhibit D
for any reason including, without limitation, cleaning required because of (A)
misuse or neglect on the part of Tenant or Tenant's agents, contractors,
invitees, employees and customers, (B) the use of portions of the Premises for
special purposes requiring greater or more difficult cleaning work than office
areas, (C) interior glass partitions or unusual quantities of interior glass
surfaces, and (D) non-building standard materials or finishes installed by
Tenant or at its request; and (ii) removal from the Premises of any refuse and
rubbish of Tenant in excess of that ordinarily accumulated in general office
occupancy or at times other than Landlord's standard cleaning times.
D. WATER AND ELECTRICITY. Landlord shall make available domestic water in
reasonable quantities to the common areas of the Building (and to the Premises
if so designated in Exhibit B) and cause electric service sufficient for
lighting the Premises and for the operation of Ordinary Office Equipment.
"Ordinary Office Equipment" shall mean office equipment wired for 120 volt
electric service and rated and using less than 6 amperes or 750 watts of
electric current or other office equipment approved by Landlord in writing.
Landlord shall have the exclusive right to make any replacement of lamps,
fluorescent tubes and lamp ballasts in the Premises. Landlord may adopt a system
of relamping and ballast replacement periodically on a group basis in accordance
with good management practice. Tenant's use of electric energy in the Premises
shall not at any time exceed the capacity of any of the risers, piping,
electrical conductors and other equipment in or serving the Premises. In order
to insure that such capacity is not exceeded and to avert any possible adverse
effect upon the Building's electric system, Tenant shall not, without Landlord's
prior written consent in each instance, connect appliances or heavy duty
equipment, other than Ordinary Office Equipment, to the Building's electric
system or make any alteration or addition to the Building's electric system.
Should Landlord grant its consent in writing, all additional risers, piping and
electrical conductors or other equipment therefor shall be provided by Landlord
and the cost thereof shall be paid by Tenant within 10 days of Landlord's demand
therefor. As a condition to granting such consent, Landlord may require Tenant
to agree to an increase in Monthly Rent to offset the expected cost to Landlord
of such additional service, that is, the cost of the additional electric energy
to be made available to Tenant based upon the estimated additional capacity of
such additional risers, piping and electrical conductors or other equipment. If
Landlord and Tenant cannot agree thereon, such cost shall be determined by an
independent electrical engineer, to be selected by Landlord and paid equally by
both parties.
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E. SEPARATE METERS. If the Premises are separately metered for any utility,
Tenant shall pay a utility charge to Landlord (or directly to the utility
company, if possible) based upon the Tenant's actual consumption as measured by
the meter. Landlord also reserves the right to install separate meters for the
Premises to register the usage of all or any one of the utilities and in such
event Tenant shall pay for the cost of utility usage as metered to the Premises
and which is in excess of the usage reasonably anticipated by Landlord for
normal office usage of the Premises. Tenant shall reimburse Landlord for the
cost of installation of meters if Tenant's actual usage exceeds the anticipated
usage level by more than 10 percent. In any event, Landlord may require Tenant
to reduce its consumption to the anticipated usage level. The term "utility" for
purposes hereof may refer to but is not limited to electricity, gas, water,
sewer, steam, fire protection system, telephone or other communication or alarm
service, as well as HVAC, and all taxes or other charges thereon.
F. INTERRUPTIONS. Landlord does not warrant that any of the services referred to
above, or any other services which Landlord may supply, will be free from
interruption and Tenant acknowledges that any one or more of such services may
be suspended by reason of accident, repairs, inspections, alterations or
improvements necessary to be made, or by strikes or lockouts, or by reason of
operation of law, or causes beyond the reasonable control of Landlord. Any
interruption or discontinuance of service shall not be deemed an eviction or
disturbance of Tenant's use and possession of the Premises, or any part thereof,
nor render Landlord liable to Tenant for damages by abatement of the Rent or
otherwise, nor relieve Tenant from performance of Tenant's obligations under
this Lease. Landlord shall however, exercise reasonable diligence to restore any
service so interrupted.
G. UTILITIES PROVIDED BY TENANT. Tenant shall make application in Tenant's own
name for all utilities not provided by Landlord and shall: (i) comply with all
utility company regulations for such utilities, including requirements for the
installation of meters, and (ii) obtain such utilities directly from, and pay
for the same when due directly to, the applicable utility company. The term
"utilities" for purposes hereof shall include but not be limited to electricity,
gas, water, sewer, steam, fire protection, telephone and other communication and
alarm services, as well as HVAC, and all taxes or other charges thereon. Tenant
shall install and connect all equipment and lines required to supply such
utilities to the extent not already available at or serving the Premises, or at
Landlord's option shall repair, alter or replace any such existing items. Tenant
shall maintain, repair and replace all such items, operate the same, and keep
the same in good working order and condition. Tenant shall not install any
equipment or fixtures, or use the same, so as to exceed the safe and lawful
capacity of any utility equipment or lines serving the same. The installation,
alteration, replacement or connection of any utility equipment and lines shall
be subject to the requirements for alterations of the Premises set forth in
Article 5. Tenant shall ensure that all Tenant's HVAC equipment is installed and
operated at all times in a manner to prevent roof leaks, damage, or noise due to
vibrations or improper installation, maintenance or operation.
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ARTICLE 8.
INSURANCE
A. REQUIRED INSURANCE. Tenant shall maintain insurance policies, with
responsible companies licensed to do business in the state where the Building is
located and satisfactory to Landlord, naming Landlord, Landlord's Building
Manager, Cornerstone Real Estate Advisers, Inc., Tenant and any Mortgagee of
Landlord, as their respective interests may appear, at its own cost and expense
including (i) "all risk" property insurance which shall be primary on the lease
improvements referenced in Article 5 and Tenant's property, including its goods,
equipment and inventory, in an amount adequate to cover their replacement cost;
(ii) business interruption insurance, (iii) comprehensive general liability
insurance on an occurrence basis with limits of liability in an amount not less
than $1,000,000 (One Million Dollars) combined single limit for each occurrence.
The comprehensive general liability policy shall include contractual liability
which includes the provisions of Article 9 herein.
On or before the Commencement Date of the Lease, Tenant shall furnish to
Landlord and its Building Manager, certificates of insurance evidencing the
aforesaid insurance coverage, including naming Landlord, Cornerstone Real Estate
Advisers, Inc. and Landlord's Building Manager as additional insureds. Renewal
certificates must be furnished to Landlord at least thirty (30) days prior to
the expiration date of such insurance policies showing the above coverage to be
in full force and effect.
All such insurance shall provide that it cannot be canceled except upon thirty
(30) days prior written notice to Landlord. Tenant shall comply with all rules
and directives of any insurance board, company or agency determining rates of
hazard coverage for the Premises, including but not limited to the installation
of any equipment and/or the correction of any condition necessary to prevent any
increase in such rates.
B. WAIVER OF SUBROGATION. Landlord and Tenant each agree that neither Landlord
nor Tenant will have any claim against the other for any loss, damage or injury
which is covered by insurance carried by either party and for which recovery
from such insurer is made, notwithstanding the negligence of either party in
causing the loss. This release shall be valid only if the insurance policy in
question permits waiver of subrogation or if the insurer agrees in writing that
such waiver of subrogation will not affect coverage under said policy. Each
party agrees to use its best efforts to obtain such an agreement from its
insurer if the policy does not expressly permit a waiver of subrogation.
C. WAIVER OF CLAIMS. Except for claims arising from Landlord's willful
misconduct or gross negligence that are not covered by Tenant's insurance
required hereunder, Tenant waives all claims against Landlord for injury or
death to persons, damage to property or to any other interest of Tenant
sustained by Tenant or any party claiming, through Tenant resulting from: (i)
any occurrence in or upon the Premises, (ii) leaking of roofs, bursting,
stoppage or leaking of water, gas, sewer or steam pipes or equipment, including
sprinklers, (iii) wind, rain, snow, ice, flooding, freezing, fire, explosion,
earthquake, excessive heat or cold, or other casualty, (iv) the Building,
Premises, or the operating and mechanical systems or equipment of the Building,
being
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defective, or failing, and (v) vandalism, malicious mischief, theft or
other acts or omissions of any other parties including without limitation, other
tenants, contractors and invitees at the Building. Tenant agrees that Tenant's
property loss risks shall be borne by its insurance, and Tenant agrees to look
solely to and seek recovery only from its insurance carriers in the event of
such losses. For purposes hereof, any deductible amount shall be treated as
though it were recoverable under such policies. In no event will Landlord be
responsible for any consequential damages incurred by Tenant, including but not
limited to, lost profits or interruption of business as a result of any alleged
default by Landlord hereunder.
ARTICLE 9.
INDEMNIFICATION
A. TENANT INDEMNITY OF LANDLORD. Tenant shall defend, indemnify and hold
Landlord and its agents, successors and assigns, including its Building Manager,
harmless from ant against all claims, causes of action, liabilities, losses,
costs and expenses arising from or in connection with any injury or other damage
to any person or property (i) which occurs in the Premises (except to the extent
caused by the gross negligence or willful misconduct of Landlord or any employee
or other agent of Landlord) or (ii) which occurs in any part of the Building
other than the Premises and is caused by the negligence or willful misconduct of
Tenant, its agents, contractors, employees, customers, and invitees. This
indemnification shall survive the expiration or termination of the Lease Term.
B. LANDLORD INDEMNITY OF TENANT. Landlord shall defend, indemnify and hold
Tenant harmless from and against all claims, causes of action, liabilities,
losses, costs and expenses arising from or in connection with any injury or
other damage to any person or property resulting from the gross negligence or
willful misconduct of Landlord.
C. INDEMNITY LIMITATIONS. The indemnity obligations set forth in sections A and
B above shall not apply (i) to any costs or expenses not reasonably incurred by
the indemnitee or (ii) to any claims, causes of action, liabilities, losses,
costs and expenses resulting from a default by the indemnitee hereunder.
D. INDEMNITEES; ACCEPTABLE ATTORNEYS. Whenever, in this Article and throughout
this Lease, Landlord or Tenant is required to defend, indemnify and hold the
other harmless, such obligations shall extend to the successors, assigns,
officers, partners, directors, employees and other agents of the indemnitee. In
any instance where this Lease requires either party to defend the other, such
defense shall involve an attorney or attorneys reasonably acceptable to the
indemnitee.
E. LIMITATION ON LIABILITY. Landlord shall not be liable to Tenant for any
damage by or from any act or negligence of any co-tenant or other occupant of
the Building, or by any owner or occupants of adjoining or contiguous property.
Landlord shall not be liable for any injury or damage to persons or property
resulting in whole or in part from the criminal activities or willful misconduct
of others. To the extent not covered by all risk property insurance, Tenant
agrees to pay for all damage to the Building, as well as all damage to persons
or property of other tenants
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or occupants thereof, caused by the negligence, fraud or willful misconduct of
Tenant or any of its agents, contractors, employees, customers and invitees.
Nothing contained herein shall be construed to relieve Landlord from liability
for any personal injury resulting from its gross negligence, fraud or willful
misconduct.
ARTICLE 10.
CASUALTY DAMAGE
Tenant shall promptly notify Landlord or the Building Manager of any fire or
other casualty to the Premises or to the extent it knows of damage, to the
Building. In the event the Premises or any substantial part of the Building is
wholly or partially damaged or destroyed by fire or other casualty which is
covered by Landlord's insurance, the Landlord will proceed to restore the same
to substantially the same condition existing immediately prior to such damage or
destruction unless (i) such damage or destruction is incapable of repair or
restoration within one hundred eighty (180) days; (ii) the insurance proceeds
recovered by reason of the damage or destruction are, in Landlord's sole
judgment, inadequate to complete the restoration of the Building; or (iii)
Landlord elects not to repair or restore the Building, in any of which events
Landlord may, at Landlord's option and by written notice given to Tenant within
sixty (60) days of such damage or destruction, declare this Lease terminated as
of the happening of such damage or destruction. To the extent after fire or
other casualty that Tenant shall be deprived of the use and occupancy of the
Premises or any portion thereof as a result of any such damage, destruction or
the repair thereof, providing Tenant did not cause the fire or other casualty,
Tenant shall be relieved of the same ratable portion of the Monthly Rent
hereunder as the amount of damaged or useless space in the Premises bears to the
rentable square footage of the Premises until such time as the Premises may be
restored. Landlord shall reasonably determine the amount of damaged or useless
space and the square footage of the Premises referenced in the prior sentence.
ARTICLE 11.
CONDEMNATION
In the event of a condemnation or taking of the entire Premises by a public or
quasi-public authority, this Lease shall terminate as of the date title vests in
the public or quasi-public authority. In the event of (i) a taking or
condemnation of fifteen percent (15%) or more (but less than the whole) of the
Building and without regard to whether the Premises are part of such taking or
condemnation; (ii) a taking or condemnation which results in Landlord electing
not to restore the Building; or (iii) a taking or condemnation which results in
Landlord electing to change the use of the land upon which the Building is
located, Landlord may elect to terminate this Lease by giving notice to Tenant
within sixty (60) days of Landlord receiving notice of such condemnation. All
compensation awarded for any condemnation shall be the property of Landlord,
whether such damages shall be awarded as a compensation for diminution in the
value of the leasehold or to the fee of the Premises, and Tenant hereby assigns
to Landlord all of Tenant's right, title and interest in and to any and all such
compensation. Providing, however that in the event this Lease is terminated,
Tenant shall be entitled to make a separate claim for the taking of Tenant's
personal property (including fixtures paid for by Tenant), and for costs of
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moving. Notwithstanding anything herein to the contrary, any condemnation award
to Tenant shall be available only to the extent such award is payable separately
to Tenant and does not diminish the award available to Landlord or any Lender of
Landlord and such award shall be limited to the amount of Rent actually paid by
Tenant to Landlord for the period of time for which the award is given. Any
additional portion of such award shall belong to Landlord.
ARTICLE 12.
REPAIR AND MAINTENANCE
A. TENANT'S OBLIGATIONS. Tenant shall keep the Premises in good working order,
repair and condition (which condition shall be neat, clean and sanitary) and in
compliance with all Laws now or hereafter adopted pertaining of the Premises and
shall diligently maintain and repair all nonstructural aspects of the Premises
not included in Landlord's obligations below.
B. LANDLORD'S OBLIGATIONS. Landlord shall maintain (i) the foundations, roof,
perimeter walls and exterior windows, and all structural aspects of the
Building, and (ii) all nonstructural aspects of the Building which relate to the
Common Areas or to more than one tenant's premises, or which no tenant of the
Building is required to maintain and repair, including all systems and
facilities necessary for the operation of the Building and the provision of
services and utilities as required herein (except to the extent that any of the
foregoing items are installed by or on behalf of, or are the property of,
Tenant). Landlord shall also make any necessary repairs to the Building standard
mechanical, HVAC, electrical, and plumbing systems in or servicing the Premises
(the cost of which shall be included in Operating Expenses under Article 4),
excluding repairs required to be made by Tenant pursuant to this Article.
Landlord shall have no responsibility to make any repairs unless and until
Landlord receives written notice of the need for such repair or otherwise
becomes aware. Landlord shall not be liable for any failure to make repairs or
to perform any maintenance unless such failure shall persist for an unreasonable
time after written notice of the need for such repairs or maintenance is
received by Landlord from Tenant or after Landlord otherwise becomes aware.
Landlord shall make every reasonable effort to perform all such repairs or
maintenance in such a manner (in its judgment) so as to cause minimum
interference with Tenant and the Premises but Landlord shall not be liable to
Tenant for any interruption or loss of business pertaining to such activities.
Landlord shall have the right to require that any damage caused by the willful
misconduct of Tenant or any of Tenant's agents, contractors, employees, invitees
or customers, be paid for and performed by the Tenant (without limiting
Landlord's other remedies herein).
C. GENERAL OBLIGATIONS. Alterations to the Premises required from time to time
to comply with applicable laws, requirements of any board of property insurance
underwriters or similar entity, or reasonable requirements of Landlord's or
Tenant's insurers shall be made by the party to this Lease responsible for
maintaining and repairing the applicable aspect of the Premises hereunder.
Notwithstanding the foregoing, in the event that Landlord is required to make
any such alteration as the result of any use of the Premises by Tenant (i) which
was not contemplated at the time this Lease was signed and (ii) which is not
common to 50% or more of the tenants of the Building, Tenant shall reimburse
Landlord upon demand for all expenses reasonably incurred
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by Landlord in connection therewith, plus 10% of such expenses to cover
Landlord's internal administrative costs. If reasonably necessary to comply with
changes in applicable laws and requirements, Landlord may take back a portion or
portions of the Premises provided that the Monthly Rent and Additional Rent
shall be abated in proportion to any resulting impairment of Tenant's use of the
Premises; and provided further that, if such impairment (in the aggregate)
exceeds 5 %, Tenant shall be entitled to terminate this Lease by irrevocable
written notice to Landlord within 20 business days following the date of such
taking. Landlord warrants to Tenant that, as of the Commencement Date, all
aspects of the Premises comprising Landlord's Work, if any, shall comply with
all applicable laws, with the requirements of Landlord's insurers, and with the
requirements of all boards of property insurance underwriters and similar
entities.
D. SIGNS AND OBSTRUCTIONS. Tenant shall not obstruct or permit the obstruction
of light, halls, Common Areas, roofs, parapets, stairways or entrances to the
Building or the Premises and will not affix, paint, erect or inscribe any sign,
projection, awning, signal or advertisement of any kind to any part of the
Building or the Premises, including the inside or outside of the windows or
doors, without the written consent of Landlord. Landlord shall have the right to
withdraw such consent at any time and to require Tenant to remove any sign,
projection, awning, signal or advertisement to be affixed to the Building or the
Premises if such sign, etc. is-later determined to obstruct the foregoing areas.
If such work is done by Tenant through any person, firm or corporation not
designated by Landlord, or without the express written consent of Landlord,
Landlord shall have the right to remove such signs, projections, awnings,
signals or advertisements without being liable to the Tenant by reason thereof
and to charge the cost of such removal to Tenant as Additional Rent, payable
within ten (10) days of Landlord's demand therefor.
E. OUTSIDE SERVICES. Tenant shall not permit, except by Landlord or a person or
company reasonably satisfactory to and approved by Landlord: (i) the
extermination of vermin in, on or about the Premises; (ii) the servicing of
heating, ventilating and air conditioning equipment; (iii) the collection of
rubbish and trash other than in compliance with local government health
requirements and in accordance with the rules and regulations established by
Landlord, which shall minimally provide that Tenant's rubbish and trash shall be
kept in containers located so as not to be visible to members of the public and
in a sanitary and neat condition; or (iv) window cleaning, janitorial services
or similar work in or about the Premises.
ARTICLE 13.
INSPECTION OF PREMISES
Tenant shall permit the Landlord, the Building Manager and its authorized
representatives to enter the Premises to show the Premises during Normal
Business Hours of Building and at other reasonable times to inspect the Premises
and to make such repairs, improvements, alterations or additions in the Premises
or in the Building of which they are a part as Landlord may deem necessary or
appropriate.
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ARTICLE 14.
SURRENDER OF PREMISES
Upon the expiration of the Term, or sooner termination of the Lease, Tenant
shall quit and surrender to Landlord the Premises, broom clean, in good order
and condition, normal wear and tear and damage by fire and other casualty
excepted. All leasehold improvements and other fixtures, such as light fixtures
and HVAC equipment, wall coverings, carpeting and drapes, in or serving the
Premises, whether installed by Tenant or Landlord, shall be Landlord property
and shall remain, all without compensation, allowance or credit to Tenant. Any
property not removed shall be deemed to have been abandoned by Tenant and may be
retained or disposed of by Landlord at Tenant's expense free of any and all
claims of Tenant, as Landlord shall desire. All property not removed from the
Premises by Tenant may be handled or stored by Landlord at Tenant's expense and
Landlord shall not be liable for the value, preservation or safekeeping thereof.
At Landlord's option all or part of such property may be conclusively deemed to
have been conveyed by Tenant to Landlord as if by bill of sale without payment
by Landlord. The Tenant hereby waives to the maximum extent allowable the
benefit of all laws now or hereafter in force in this state or elsewhere
exempting property from liability for rent or for debt.
ARTICLE 15.
HOLDING OVER
Tenant shall pay Landlord 200% of the amount of Rent then applicable prorated on
a per diem basis for each day Tenant shall retain possession of the Premises or
any part thereof after expiration or earlier termination of this Lease, together
with all damages sustained by Landlord on account thereof. The foregoing
provisions shall not serve as permission for Tenant to hold-over, nor serve to
extend the Term (although Tenant shall remain bound to comply with all
provisions of this Lease until Tenant vacates the Premises) and Landlord shall
have the right at any time thereafter to enter and possess the Premises and
remove all property and persons therefrom. No acceptance by Landlord of any Rent
during or for any period following the expiration of termination of the Lease
shall operate or be construed as an extension or renewal of the Lease Term.
Should Tenant remain in the Premises on a month-to-month basis with Landlord's
approval, such month-to-month tenancy may be cancelled by either party with
thirty (30) days' prior written notice or such lesser time period as may be
permitted by law.
ARTICLE 16.
SUBLETTING AND ASSIGNMENT
A. LANDLORD'S CONSENT. Tenant shall not assign its interests hereunder, sublease
all or any portion of the Premises (for purposes of this Lease, a license shall
be deemed to be a sublease), or allow any other person to use or occupy any
portion of the Premises, without the prior written consent of Landlord, which
shall not be unreasonably withheld, except that Landlord shall not, under any
circumstances, be obligated to consent to any assignment or subletting by Tenant
(i) to any other tenant of the Building, (ii) by operation of law, or (iii) to
any person who fails to meet
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any of the other reasonable criteria of Landlord that Tenant was required to
meet prior to the execution of this Lease, including, without limitation, the
following:
a. The financial strength of the proposed assignee or subtenant, both in
terms of net worth and in terms of reasonably anticipated cash flow over the
Lease term, is materially less than Tenant's financial strength at the time this
Lease was signed or at the time of such assignment or sublease, whichever is
greater.
b. The proposed assignee or subtenant would burden the Premises and/or Common
Areas to an extent substantially disproportionate to typical tenants of the
Building, whether through disproportionate demand for landlord services or
utilities, disproportionate bearing weights on floor areas, disproportionate
parking requirements, deterioration of floors or other elements of the Building,
or otherwise.
c. The proposed assignee or subtenant intends to make substantial alterations
to the Premises which would, in Landlord's reasonable judgment, result in a
material net decrease in the value of the Premises as improved.
d. The proposed assignee's or subtenant's use of the Premises would not, in
Landlord's sole judgment, be compatible with the uses of the other tenants in
the Building or would not be appropriate for a Class A office building.
e. Any other basis on which Landlord can reasonably refuse to withhold its
consent to the proposed assignment or sublease, including any failure of the
proposed assignee or subtenant to meet any of the reasonable criteria of
Landlord that Tenant was required to meet prior to the execution of this Lease.
With respect to any proposed assignment or subleasing requiring Landlord's
consent, Tenant shall submit to Landlord in writing, at least 60 days prior to
the effective date of the assignment or sublease, (i) a notice of application to
assign or sublease, setting forth the proposed effective date, which shall be
not less than 60 or more than 90 days after the delivery of such notice; (ii)
the name of the proposed transferee; (iii) the nature of the proposed
transferee's business to be carried on in the Premises; (iv) the terms of the
proposed sublease or assignment; and (v) a current financial statement of the
proposed transferee. Tenant shall not submit any such application to Landlord
until Tenant has received a bona fide offer from the proposed transferee, and
Tenant shall furnish Landlord, in addition to the foregoing, with all other
information reasonably required by Landlord with respect to such transfer and
transferee. Any transfer (or sequence of transfers resulting, in the aggregate,
in the transfer) of 50% or more of the beneficial ownership of Tenant shall
constitute an assignment for purposes of this Article.
B. TRANSFERS NOT REQUIRING CONSENT. Notwithstanding the foregoing, Landlord's
consent shall not be required with respect to (i) any assignment resulting from
a consolidation, merger or purchase of substantially all of Tenant's assets; or
(ii) any assignment or sublease to a person (a) who wholly owns Tenant or who
wholly owns the person who wholly owns Tenant (in either case, a "Parent"), or
who is wholly owned by Tenant or a Parent, or is wholly owned by a person who is
wholly owned by Tenant or a Parent, and (b) whose financial strength, both in
terms of
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net worth and in terms of reasonably anticipated cash flow over the Lease term,
is not materially less than Tenant's financial strength at the time this Lease
was executed or at the time of such assignment or sublease, whichever is
greater. With respect to any assignment or subletting to which Landlord's
consent is not required, the following provisions shall apply:
1. Tenant shall give Landlord written notice of the assignment or
subletting no less than 45 days prior to the effective date thereof, which
notice shall set forth the identity of the proposed transferee, the reason(s)
why Landlord's consent is not required, and the nature of the proposed
transferee's business to be carried on in the Premises.
2. Tenant shall furnish Landlord (a) no less than 30 days prior to
the effective date of the assignment or subletting, with a current financial
statement of the proposed transferee reasonably acceptable to Landlord, and (b)
within three (3) days following Landlord's demand, with all other information
reasonably requested by Landlord with respect to such transferee.
Any assignment or subletting to which Landlord's consent is not required and
with respect to which the provisions of this paragraph are not complied with
shall, at Landlord's option, be void.
C. RECAPTURE. Landlord shall have the option to be exercised within
thirty (30) days from the submission of the aforesaid information to cancel this
Lease with respect to the space to be assigned or the space to be sublet for the
duration of the proposed sublease.
D. NET REVENUES.
1. SUBLEASE REVENUES. In the event that Tenant subleases all or any
portion of the Premises and the total of all amounts payable to Tenant for any
month under any such sublease exceeds the total of all amounts payable to
Landlord hereunder for such month for the same space, the following shall apply
to such excess (the "Net Sublease Revenues"):
a. the Net Sublease Revenues shall first be paid to Tenant to
the extent of the applicable monthly portion (calculated by amortizing each cost
on a straight-line basis over the term of the applicable sublease) of: (1) the
amount by which all Monthly Rent and Additional Rent paid by Tenant (not
including any Net Sublease Revenues) for such space, for the period since Tenant
vacated the same (and provided Landlord with written notice of such vacation)
until the date on which the subtenant is required to commence paying rent,
exceeds all amounts payable to Tenant under any previous subleases of such space
for such period; (2) all brokerage commissions reasonably incurred by Tenant in
connection with such sublease(s); and (3) all improvement allowances and other
economic concessions (space planning allowances, moving allowances, etc.) paid
to such subtenant(s); and
b. any additional Net Sublease Revenues received by Tenant
for any month shall be paid to Landlord within 5 business days thereafter.
2. ASSIGNMENT REVENUES. In the event that Tenant assigns this Lease
with respect to all or any portion of the Premises (the "assigned premises"),
Tenant shall pay to Landlord the amount, if any, by which all amounts paid to
Tenant in consideration of such
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assignment exceed the sum of (a) all Monthly Rent and Additional Rent paid by
Tenant for the assigned premises for the period from the date Tenant vacated the
same (and provided Landlord with written notice of such vacation) until the
effective date of the assignment and (b) all brokerage commissions reasonably
incurred by the assigning tenant in connection with such assignment.
E. CONTINUING LIABILITY; VOIDABLE TRANSFERS. No assignment of this Lease (other
than an assignment to Landlord resulting from Landlord's right of recapture),
and no subletting of all or any portion of the Premises, shall release Tenant or
any guarantor with respect to any post-transfer obligations, unless Landlord
agrees otherwise in writing in its absolute discretion and any such assignment
or sublease shall, at Landlord's option, be void in the event that Tenant and
each such guarantor, if any, does not expressly acknowledge and affirm its
continuing liability in form and substance reasonably satisfactory to Landlord.
The continuing liability of the assigning Tenant shall be primary, and Landlord
shall be entitled to exercise its rights and remedies against any such assignor
with respect to any Tenant Default without exhausting its rights and remedies
against any successor of such assignor. In the event that it is ever held,
notwithstanding the contrary intention of the parties hereto, that any such
assignor's continuing liability is that of a guarantor (rather than primary),
Tenant hereby waives any and all suretyship rights and defenses to which it
,would otherwise be entitled in connection with such continuing liability.
Notwithstanding the foregoing, in the event that, following any assignment
(other than an assignment described in Section B, above), Landlord and such
assignee modify this Lease in such a way as to increase Tenant's total
obligations hereunder, neither the assigning Tenant nor any guarantor whose
guaranty pre-dated such assignment shall be liable for the incremental portion
of Tenant's obligations corresponding to such increase. The acceptance of any
assignment by an assignee shall automatically constitute the assumption by such
assignee of all obligations of Tenant with respect to the assigned premises that
accrue following the assignment; provided, however, that any assignment of this
Lease shall, at Landlord's option, be void in the event that the assignee does
not expressly acknowledge and affirm the effectiveness of the foregoing
assumption in form and substance reasonably satisfactory to Landlord. Any
assignment or subletting by Tenant to which Landlord's consent is required but
not obtained shall, at Landlord's option, be void. Following Landlord's consent,
or refusal to consent, to any assignment or sublease. Tenant shall pay Landlord,
upon demand, a reasonable charge (not to exceed $500.00) to cover Landlord's
administrative and out-of-pocket costs in connection therewith.
F. OTHER PROVISIONS APPLICABLE TO TRANSFERS. No assignment or subletting shall
be deemed to modify any provision of this Lease, with respect to permitted or
restricted uses of the Premises or otherwise, unless Landlord then agrees
otherwise in writing in its absolute discretion. Tenant shall promptly furnish
Landlord with a copy of each executed assignment or sublease, and with copies of
any supplements or modifications thereto which may be executed from time to
time.
G. ASSIGNMENT OF SUBLEASE REVENUES. Tenant hereby absolutely assigns to Landlord
all of Tenant's right, title and interest in and to all revenues from each
sublease of all or any portion of the Premises; provided, however, that Landlord
hereby grants Tenant a license, which shall
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remain in effect so long as no Tenant default remains uncured, to collect all
such revenues (subject to Tenant's obligation to deliver certain of such
revenues to Landlord under this Article). Upon the occurrence of any Tenant
default, Landlord may revoke such license by written notice to Tenant and may,
by written notice to any subtenant of Tenant, demand that such subtenant pay all
such revenues directly to Landlord. In such event Tenant hereby irrevocably
authorizes and directs any such subtenant to pay such revenues to Landlord, and
further agrees (a) that any such subtenant shall be obligated and entitled to
pay such revenues to Landlord notwithstanding any contrary contentions or
instructions later received from tenant and (b) that no such subtenant shall
have any liability to Tenant for any such revenues paid to Landlord in
accordance with the foregoing. Landlord shall not be entitled to use or enjoy
any such revenues except for the purpose of applying such revenues against
unfulfilled obligations of Tenant hereunder with respect to which the applicable
cure periods have expired, or to reimburse Landlord for costs reasonably
incurred as a result of any Tenant default, or to compensate Landlord for other
losses suffered by Landlord as a result of any Tenant default. Any such revenues
remaining in Landlord's possession following the cure of all Tenant defaults and
the reimbursement of all such costs and losses shall be delivered to Tenant upon
demand. No such notice to any subtenant or receipt of revenues from any
subtenant shall be teemed to constitute either (i) Landlord's consent to such
sublease or (ii) the assumption by Landlord of any obligation of Tenant under
such sublease, nor shall any such notice or receipt create privily of contract
between Landlord and the applicable subtenant or be construed as a
nondisturbance or similar agreement between Landlord and such subtenant.
H. TRANSFERS BY SUBTENANTS. The provisions of this Article shall also apply to
assignments and subleases by subtenants, sub-subtenants and so on.
I. ASSIGNMENT OF OPTIONS. Without limiting the generality of any provision of
this Lease which states that any option or other right of Tenant is personal to
the original Tenant hereunder or may only be assigned under certain conditions,
no option or similar right of Tenant hereunder, including without limitation any
option to extend or renew, option to expand, first offer or first refusal right,
or first right to lease, may be assigned, and any attempt to assign such right
shall be null and void.
J. ENCUMBRANCE. Tenant shall not assign its interests hereunder as security for
any obligation without Landlord's prior written consent, which may be withheld
in Landlord's absolute discretion, and any such assignment without such consent
shall, at Landlord's option, be void.
ARTICLE 17.
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages now or hereafter placed
upon the Building, and all other encumbrances and matters of public record
applicable to the Building, including without limitation, any reciprocal
easement or operating agreements, covenants, conditions and restrictions and
Tenant shall not act or permit the Premises to be operated in violation thereof.
If any foreclosure or power of sale proceedings are initiated by any Lender or a
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deed in lieu is granted (or if any ground lease is terminated), Tenant agrees,
upon written request of any such Lender or any purchaser at such foreclosure
sale, to attorn and pay Rent to such party and to execute and deliver any
instruments necessary or appropriate to evidence or effectuate such attornment.
In the event of attornment, no Lender shall be: (i) liable for any act or
omission of Landlord, or subject to any offsets or defenses which Tenant might
have against Landlord (prior to such Lender becoming Landlord under such
attornment), (ii) liable for any security deposit or bound by any prepaid Rent
not actually received by such Lender, or (iii) bound by any future modification
of this Lease not consented to by such Lender. Any Lender may elect to make this
Lease prior to the lien of its Mortgage, and if the Lender under any prior
Mortgage shall require, this Lease shall be prior to any subordinate Mortgage;
such elections shall be effective upon written notice to Tenant. Tenant agrees
to give any Lender by certified mail; return receipt requested, a copy of any
notice of default served by Tenant upon Landlord, provided that prior to such
notice Tenant has been notified in writing (by way of service on Tenant of a
copy of an assignment of leases, or otherwise) of the name and address of such
Lender. Tenant further agrees that if Landlord shall have failed to cure such
default within the time permitted Landlord for cure under this Lease, any such
Lender whose address has been so provided to Tenant shall have an additional
period of thirty (30) days in which to cure (or such additional time as may be
required due to causes beyond such Lender's control, including time to obtain
possession of the Building by power of sale or judicial action or deed in lieu
of foreclosure). The provisions of this Article be self-operative; however,
Tenant shall execute such documentation as Landlord or any Lender may request
from time to time in order to confirm the matters set forth in this Article in
recordable form. To the extent not expressly prohibited by Law, Tenant waives
the provisions of any Law now or hereafter adopted which may give or purport to
give Tenant any right or election to terminate or otherwise adversely affect
this Lease or Tenant's obligations hereunder if such foreclosure or power of
sale proceedings are initiated, prosecuted or completed.
ARTICLE 18.
ESTOPPEL CERTIFICATE
Tenant shall from time to time, upon written request by Landlord or Lender,
deliver to Landlord or Lender, within ten (10) days after from receipt of such
request, a statement in writing certifying: (i) that this Lease is unmodified
and in full force and effect (or if there have been modifications, identifying
such modifications and certifying that the Lease, as modified, is in full force
and effect); (ii) the dates to which the Rent has been paid; (iii) that Landlord
is not in default under any provision of this Lease (or if Landlord is in
default, specifying each such default); and, (iv) the address to which notices
to Tenant shall be sent; it being understood that any such statement so
delivered may be relied upon in connection with any lease, mortgage or transfer.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant that: (i) this Lease is in full force and effect and not modified
except as Landlord may represent; (ii) not more than one month's Rent has been
paid in advance; (iii) there are no defaults by Landlord; and, (iv) notices to
Tenant shall be sent to Tenant's Address as set forth in Article 1 of this
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Lease. Notwithstanding the presumptions of this Article, Tenant shall not be
relieved of its obligation to deliver said statement.
ARTICLE 19.
DEFAULTS
A. TENANT DEFAULTS. The occurrence of any of the following shall constitute a
"default" by Tenant hereunder:
(a) Tenant fails to pay when due any installment or other payment of Rent, or
any other amount owing to Landlord, or
(b) Tenant fails to keep in effect any insurance required to be maintained,
and such failure continues for thirty (30) days after notice thereof given by
or on behalf of Landlord, or
(c) Tenant vacates or abandons the Premises, or
(d) Tenant becomes insolvent, makes an assignment for the benefit of
creditors, files a voluntary petition in bankruptcy or an involuntary
petition is filed against Tenant which petition is not dismissed within
sixty (60) days of its filing, or if a receiver shall be appointed for its
business or its assets and the appointment of such receiver is not vacated
within thirty (30) days after such appointment, or
(e) Tenant fails to perform or observe any of the other covenants, conditions
or agreements contained herein on Tenant's part to be kept or performed or
breaches a representation made hereunder, and such failure shall continue for
thirty (30) days after notice thereof given by or on behalf of Landlord, or
if such default is curable but cure cannot reasonably be effected within such
thirty (30) day period, such default shall not be a default hereunder so long
as Tenant promptly commences cure within ten (l0) days and thereafter
diligently prosecutes such cure to completion, or
(f) If the interest of Tenant shall be offered for sale or sold under
execution or other legal process or if Tenant makes any transfer, assignment,
conveyance, sale, pledge, disposition of all or a substantial portion of
Tenant's property, or
(g) The chronic delinquency by Tenant in the payment of Monthly Rent, or any
other periodic payments required to be paid by Tenant under the Lease.
"Chronic delinquency" shall mean failure by Tenant to pay Rent, or any other
periodic payments required to be paid by Tenant under this Lease within five
(5) days after written notice thereof for any three (3) months (consecutive
or nonconsecutive) during any twelve (12) month period. In the event of a
chronic delinquency, at Landlord's option, Landlord shall have the additional
right to require that Rent be paid by Tenant quarter-annually, in advance.
This provision shall in no way modify Tenant's obligation to pay Rent on the
first (1st) day of the month.
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B. LANDLORD DEFAULTS. If any alleged default on the part of the Landlord
hereunder occurs, Tenant shall give written notice to Landlord in the manner
herein set forth and shall effort Landlord a reasonable opportunity to cure any
such default. In addition, Tenant shall send notice of such default by certified
or registered mail, postage prepaid, to the holder of any Mortgage whose address
Tenant has been notified of in writing, and shall afford such Mortgage holder a
reasonable opportunity to cure any alleged default on Landlord's behalf. In no
event will Landlord be responsible for any damages incurred by Tenant,
including, but not limited to, lost profits or interruption of business as a
result of any alleged default by Landlord hereunder.
ARTICLE 20.
REMEDIES
A. LANDLORD REMEDIES. The remedies provided Landlord under this Lease are
cumulative. Upon the occurrence of any default by Tenant, and in addition to any
and all other rights provided a Landlord under law or equity for breach of a
lease or tenancy by a Tenant, Landlord shall have the right to pursue one or
more of the following remedies:
(a) Landlord may serve notice on Tenant that the Term and the estate hereby
vested in Tenant and any and all other rights of Tenant hereunder shall cease on
the date specified in such notice and on the specified date this Lease shall
cease and expire as fully and with the effect as if the Term had expired for
passage of time.
(b) Without terminating this Lease in case of a default or if this Lease
shall be terminated for default as provided herein, Landlord may re-enter the
Premises, remove Tenant, or cause Tenant to be removed from the Premises in such
manner as Landlord may deem advisable, with or without legal process, and using
such reasonable force as may be necessary. In the event of re-entry without
terminating this Lease, Tenant shall continue to be liable for all rents and
other charges accruing or coming due under this Lease which Rent shall
automatically accelerate and become immediately due and payable.
(c) If Landlord, without terminating this Lease, shall re-enter the Premises
or if this Lease shall be terminated as provided in paragraph (a) above:
(i) All Rent due from Tenant to Landlord shall thereupon become due and
shall be paid up to the time of re-entry, dispossession or expiration,
together with reasonable costs and expenses (including, without
limitation, any legal fees and expenses) or Landlord and without benefit
of valuation and appraisement laws which Tenant hereby waives;
(ii) Landlord, without any obligation to do so, may relet the Premises or
any part thereof for a term or terms which may at Landlord's option be
less than or exceed the period which would otherwise have constituted
the balance of the Term and may grant such concessions in reletting
as Landlord, in the exercise of its reasonable business judgment, deems
desirable. In connection with such reletting,
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Tenant shall be liable for all costs of the reletting including,
without limitation, leasing commissions, legal fees and alteration and
remodeling costs;
(iii)If Landlord shall have terminated this Lease, Tenant shall also be
liable to Landlord for all damages provided for in law and under this
Lease resulting from Tenant's breach including, without limitation, the
difference between the aggregate Rents reserved under the terms of this
Lease for the balance of the Term together with all other sums payable
hereunder as Rent for the balance of the Term (using the highest annual
Percentage Rent paid by Tenant for any Lease Year), less the fair rental
value of the Premises for that period determined as of the date of such
termination. For purposes of this paragraph, Tenant shall be deemed to
include any guarantor or surety of the Lease.
(d) Landlord may continue this Lease in effect after Tenant's breach and
abandonment and recover rent as it becomes due, if Tenant has the right to
sublet or assign, subject only to reasonable limitations (and with the
understanding that Landlord is under no obligation to relet the Premises under
any conditions so long as there is comparable space available in the Building
for lease).
(e) Whether or not Landlord terminates this Lease, Landlord shall have the
right, as Landlord chooses in its absolute discretion, (i) to terminate any or
all subleases, licenses, concessions and other agreements entered into by Tenant
in connection with its occupancy of the Premises and/or (ii) to maintain any or
all such agreements in effect ant succeed to Tenant's interests in connection
therewith (in which event Tenant shall cease to have any interest in any such
agreement).
B. TENANT REMEDIES. Upon the occurrence of any default by Landlord, Tenant
shall, except as otherwise expressly provided herein, have all rights and
remedies provided hereunder and by law from time to time; provided, however,
that Tenant shall in no event have the right to terminate this Lease except as
expressly provided herein.
ARTICLE 21.
QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that so long as Tenant pays the Rent
and observes and performs all the terms, covenants, and conditions of this Lease
on Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the Premises subject, nevertheless, to the terms and conditions of this
Lease, and Tenant's possession will not be disturbed by anyone claiming by,
through, or under Landlord.
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ARTICLE 22.
ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of an amount less than full payment
of Rent then due and payable shall be deemed to be other than on account of the
Rent then due and payable, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as Rent be deemed as accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
provided for in this Lease or available at law or in equity.
ARTICLE 23.
SECURITY DEPOSIT
To secure the faithful performance by Tenant of all of the covenants, conditions
and agreements set forth in this Lease to be performed by it, including, without
limitation, the foregoing covenants, conditions and agreements in this Lease
which become applicable upon its termination by re-entry or otherwise, Tenant
has deposited with Landlord the sum shown in Article 1 as a "Security Deposit"
on the understanding:
(a) that the Security Deposit or any portion thereof may be
applied to the curing of any default that may exist, without
prejudice to any other remedy or remedies which the Landlord
may have on account thereof, and upon such application Tenant
shall pay Landlord on demand the amount so applied which shall
be added to the Security Deposit so the same will be restored
to its original amount;
(b) that should the Premises be conveyed by Landlord, the Security
Deposit or any balance thereof may be turned over to the
Landlord's grantee, and if the same be turned over as
aforesaid, Tenant hereby releases Landlord from any and all
liability with respect to the Security Deposit and its
application or return, and Tenant agrees to look solely to
such grantee for such application or return;
(c) that Landlord may commingle the Security Deposit with other
funds and not be obligated to pay Tenant any interest;
(d) that the Security Deposit shall not be considered as advance
payment of Rent or a measure of damages for any default by
Tenant, nor shall it be a bar or defense to any actions by
Landlord against Tenant;
(e) that if Tenant shall faithfully perform all of the covenants
and agreements contained in this Lease on the part of the
Tenant to be performed, the Security Deposit or any then
remaining balance thereof, shall be returned to Tenant,
without interest, within thirty (30) days after the
expiration of the Term. Tenant further covenants that it will
not assign or encumber the money deposited herein as a
Security Deposit and that neither Landlord nor its successors
or assigns shall
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be bound by any such assignment, encumbrance, attempted
assignment or attempted encumbrance.
ARTICLE 24.
BROKERAGE COMMISSION
Landlord and Tenant represent and warrant to each other that neither has dealt
with any broker, finder or agent except for the Broker(s) identified in Article
1. Tenant represents and warrants to Landlord that (except with respect to the
Broker identified in Article 1 and with whom Landlord has entered into a
separate brokerage agreement) no broker, agent, commission salesperson, or other
person has represented Tenant in the negotiations for and procurement of this
Lease and of the Premises and that no commissions, fees, or compensation of any
kind are due and payable in connection herewith to any broker, agent, commission
salesperson, or other person. Tenant agrees to indemnify Landlord and hold
Landlord harmless from any and all claims, suits, or judgments (including,
without limitation, reasonable attorneys' fees and court costs incurred in
connection with any such claims, suits, or judgments, or in connection with the
enforcement of this indemnity) for any fees, commissions, or compensation of any
kind which arise out of or are in any way connected with any claimed agency
relationship not referenced in Article 1.
ARTICLE 25.
FORCE MAJEURE
Landlord shall be excused for the period of any delay in the performance of any
obligation hereunder when prevented from so doing by a cause or causes beyond
its control, including all labor disputes, civil commotion, war, war-line
operations, invasion, rebellion, hostilities, military or usurped power,
sabotage, governmental regulations or controls, fire or other casualty,
inability to obtain any material, services or financing, or through acts of Got.
Tenant shall similarly be excused for delay in the performance of any obligation
hereunder; provided:
(a) nothing contained in this Section or elsewhere in this Lease
shall be deemed to excuse or permit any delay in the payment
of the Rent, or any delay in the cure of any default which may
be cured by the payment of money;
(b) no reliance by Tenant upon this Section shall limit or
restrict in any way Landlord's right of self-help as provided
in this Lease; and
(c) Tenant shall not be entitled to rely upon this Section unless
it shall first have given Landlord written notice of the
existence of any force majeure preventing the performance of
an obligation of Tenant within five days after the
commencement of the force majeure.
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ARTICLE 26.
PARKING
(a) Landlord hereby grants to Tenant the right, in common with others
authorized by Landlord, to use the parking facilities owned by Landlord and
shown on Exhibit A, if any. Landlord, at its election, may designate the types
and locations of parking spaces within the parking facilities which Tenant shall
be allowed to use. Landlord shall have the right, at Landlord's election, to
change said types and locations from time to time; provided, however, such
designation shall be uniformly applied and shall not unfairly favor any tenant
in the Building.
(b) Commencing on the Commencement Date, Tenant shall pay Landlord the
Parking Fee, if any, shown in Article 1, as Additional Rent, payable monthly in
advance with the Monthly Rent. If there is a Parking Fee shown in Schedule 1,
then thereafter, and throughout the Term, the parking rate for each type of
parking space provided to Tenant hereunder shall be the prevailing parking rate,
as Landlord may designate from time to time, Landlord's election, for each such
type of parking space. In addition to the right reserved hereunder by Landlord
to designate the parking rate from time to time, Landlord shall have the right
to change the parking rate at any time to include therein any amounts levied,
assessed, imposed or required to be paid to any governmental authority on
account of the parking of motor vehicles, including all sums required to be paid
pursuant to transportation controls imposes by the Environmental Protection
Agency under the Clean Air Act of 1970, as amended, or otherwise required to be
paid by any governmental authority with respect to the parking, use, or
transportation of motor vehicles, or the reduction or control of motor vehicle
traffic, or motor vehicle pollution.
(c) If requested by Landlord, Tenant shall notify Landlord of the
license plate number, year, make and model of the automobiles entitled to use
the parking facilities and if requested by Landlord, such automobiles shall be
identified by automobile window stickers provided by Landlord, and only such
designated automobiles shall be permitted to use the parking facilities. If
Landlord institutes such an identification procedure, Landlord may provide
additional parking spaces for use by customers and invitees of Tenant on a daily
basis at prevailing parking rates, if any. At Landlord's election, Landlord may
make validation stickers available to Tenant for any such additional parking
spaces, provided, however, if Landlord makes validation stickers available to
any other tenant in the Building, Landlord shall make such validation stickers
available to Tenant.
(d) The parking facilities provided for herein are provided solely for
the accommodation of Tenant and Landlord assumes no responsibility or liability
of any kind whatsoever from whatever cause with respect to the automobile
parking areas, including adjoining streets, sidewalks, driveways, property and
passageways, or the use thereof by Tenant or tenant's employees, customers,
agents, contractors or invitees.
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ARTICLE 27.
HAZARDOUS MATERIALS
A. DEFINITION OF HAZARDOUS MATERIALS. The term "Hazardous Materials" for
purposes hereof shall mean any chemical, substance, materials or waste or
component thereof which is now or hereafter listed, defined or regulated as a
hazardous or toxic chemical, substance, materials or waste or component thereof
by any federal, state or local governing or regulatory body having jurisdiction,
or which would trigger any employee or community "right-to-know" requirements
adopted by any such body, or for which any such body has adopted any
requirements for the preparation or distribution of a materials safety data
sheet ("MSDS").
B. NO HAZARDOUS MATERIALS. Tenant shall not transport, use, store, maintain,
generate, manufacture, handle, dispose, release or discharge any Hazardous
Materials. However, the foregoing provisions shall not prohibit the
transportation to and from, and use, storage, maintenance and handling within
the Premises of Hazardous Materials customarily used in the business or activity
expressly permitted to be undertaken in the Premises under Article 6, provided:
(a) such Hazardous Materials shall be used and maintained only in such
quantities as are reasonably necessary for such permitted use of the Premises
and the ordinary course of Tenant's business therein, strictly in accordance
with applicable Law, highest prevailing standards, and the manufacturers'
instructions therefor, (b) such Hazardous Materials shall not be disposed of,
released or discharged in the Building, and shall be transported to and from the
Premises in compliance with all applicable Laws, and as Landlord shall
reasonably require, (c) if any applicable Law or Landlord's trash removed
contractor requires that any such Hazardous Materials be disposed of separately
from ordinary trash, Tenant shall make arrangements at Tenant's expense for such
disposal directly with a qualified and licensed disposal company at a lawful
disposal site (subject to scheduling and approved by Landlord), and (d) any
remaining such Hazardous Materials shall be completely, properly and lawfully
removed from the Building upon expiration or earlier termination of this Lease.
Any clean up, remediation and removal work shall be subject to Landlord's prior
written approval (except in emergencies), and shall include, without limitation,
any testing, investigation, and the preparation and implementation of any
remedial action plan required by any governmental body having jurisdiction or
reasonably required by Landlord. If Landlord or any Lender or governmental body
arranges for any tests or studies showing that this Article has been violated by
Tenant, Tenant shall pay for the costs of such tests.
C. NOTICES TO LANDLORD. Tenant shall promptly notify Landlord of: (i) any
enforcement, cleanup or other regulatory action taken or threatened by any
governmental or regulatory authority with respect to the presence of any
Hazardous Materials on the Premises or the migration thereof from or to other
property, (ii) any demands or claims made or threatened by any party relating to
any loss or injury resulting from any Hazardous Materials on the Premises, (iii)
any release, discharge or non-routine, improper or unlawful disposal or
transportation of any Hazardous Materials on or from the Premises or in
violation of this Article, and (iv) any matters where Tenant is required by Law
to give a notice to any governmental or regulatory authority respecting any
Hazardous Materials on the Premises. Landlord shall have the right (but not the
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obligation) to join and participate, as a party, in any legal proceedings or
actions affecting the Premises initiated in connection with any environmental,
heath or safety law. At such times as Landlord may reasonably request, Tenant
shall provide Landlord with a written list, certified to be true and complete,
identifying any Hazardous Materials then used, stored, or maintained upon the
Premises, the use and approximate quantity of each such materials, a copy of any
MSDS issued by the manufacturer therefor, and such other information as Landlord
may reasonably require or as may be required by Law.
D. INDEMNIFICATIONS. Tenant will indemnify, defend (by counsel reasonably
acceptable to Landlord), protect, and hold Landlord and each of Landlord's
partners, employees, agents, attorneys, successors and assigns, free and
harmless from and against any and all claims, liabilities, penalties,
forfeitures, losses or expenses (including attorney's fees) or death of or
injury to any person or damage to any property whatsoever, arising from or
caused in whole or in part, directly or indirectly, by:
(i) the presence in, on, under or about the Premises or
discharge in or from the Premises of any Hazardous Materials placed in,
under or about, the Premises by Tenant or at Tenant's direction,
excluding any tenant improvement work done by Landlord; or
(ii) Tenant's use, analysis, storage, transportation,
disposal, release, threatened release, discharge or generation of
Hazardous Materials to, in, on, under, about or from the Premises; or
(iii) Tenant's failure to comply with any Hazardous Materials
Law applicable hereunder to Tenant.
Landlord will indemnify, defend (by counsel reasonably acceptable to Tenant),
protect, and hold Tenant and each of Tenant's employees, agents, attorneys,
successors and assigns, free and harmless from and against any and all claims,
liabilities penalties, forfeitures, losses or expenses (including attorney's
fees) or death of or injury to any person or damage to any property whatsoever,
arising from or caused in whole or in part, directly or indirectly, by:
(i) the presence in, on, under or about the Premises or the
Building or discharge in or from the Premises or the Building of any
Hazardous Materials placed, in, on, under or about the Premises or the
Building by Landlord or at Landlord's direction; or
(ii) Landlord's use, analysis, storage, transportation,
disposal, release, threatened release, discharge or generation of
Hazardous Materials to, in, on, under, about or from the Premises or
the Building; or
(iii)Landlord's failure to comply with any Hazardous Materials
Law.
The obligations of each party ("INDEMNIFYING PARTY") pursuant to this Section
includes, without limitation, and whether foreseeable or unforeseeable, all
costs of any required or necessary repair, cleanup or detoxification or
decontamination of the Premises or the Building, and the
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preparation and implementation of any closure, remedial action or other required
plans in connection therewith, and survives the expiration or earlier
termination of the term of the Lease.
ARTICLE 28.
ADDITIONAL RIGHTS RESERVED BY LANDLORD
In addition to any other rights provided for herein, Landlord reserves the
following rights, exercisable without liability to Tenant for damage or injury
to property, person or business and without effecting an eviction, constructive
or actual, or disturbance of Tenant's use or possession or giving rise to any
claim:
(a) To name the Building and to change the name or street address of the
Building;
(b) To install and maintain all signs on the exterior and interior of the
Building;
(c) To designate all sources furnishing sign painting or lettering for use
in the Building:
(d) During the last ninety (90) days of the Term, if Tenant has vacated
the Premises, to decorate, remodel, repair, after or otherwise prepare
the Premises for occupancy, without affecting Tenant's obligation to
pay Rent for the Premises;
(e) To have pass keys to the Premises and all doors therein, excluding
Tenant's vaults and safes;
(f) On reasonable prior notice to Tenant, to exhibit the Premises to any
prospective purchaser, Lender, mortgagee, or assignee of any mortgage
on the Building of Land and to others having an interest therein at
any time during the Term, and to prospective tenants during the last
six months of the Term;
(g) To take any and all measures, including entering the Premises for the
purpose of making inspections, repairs, alterations, additions and
improvements to the Premises or to the Building (including for the
purpose of checking, calibrating, adjusting and balancing controls
and other parts of the Building Systems), as may be necessary or
desirable for the operation, improvement, safety, protection or
preservation of the Premises or the Building, or in order to comply
with all Laws, orders and requirements of governmental or other
authority, or as may otherwise be permitted or required by this Lease;
provided, however, that during the progress of any work on the
Premises or at the Building, Landlord will attempt not to
inconvenience Tenant, but shall not be liable for inconvenience,
annoyance, disturbance, loss of business, or other damage to Tenant
by reason of performing any work or by bringing or storing materials,
supplies, tools or equipment in the Building or Premises during the
performance of any work, and the obligations of Tenant under this
Lease shall not thereby be affected in any manner whatsoever;
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(h) To relocate various facilities within the Building and on the land of
which the Building is a part if Landlord shall determine such
relocation to be in the best interest of the development of the
Building and Property, provided that such relocation shall not
materially restrict access to the Premises; and
(i) To install vending machines of all kinds in the Building and to
receive all of the revenue derived therefrom, provided, however, that
no vending machines shall be installed by Landlord in the Premises
unless Tenant so requests.
ARTICLE 29.
DEFINED TERMS
A. "Building" shall refer to the Building named in Article 1 of which the leased
Premises are a part (including all modifications, additions and alterations made
to the Building during the term of this Lease), the real property on which the
same is located, all plazas, common areas and any other areas located on said
real property and designated by Landlord for use by all tenants in the Building.
A plan showing the Building is attached hereto as Exhibit A and made a part
hereof and the Premises is defined in Article 2 and shown on said Exhibit A by
cross-hatched lines.
B. "Common Areas" shall mean and include all areas, facilities, equipment,
directories and signs of the Building (exclusive of the Premises and areas
leased to other Tenants) made available and designated by Landlord for the
common and joint use and benefit of Landlord, Tenant and other tenants and
occupants of the Building including, but not limited to, lobbies, public
washrooms, hallways, sidewalks, parking areas, landscaped areas and service
entrances. Common Areas may further include such areas in adjoining properties
under reciprocal easement agreements, operating agreements or other such
agreements now or hereafter in effect and which are available to Landlord,
Tenant and Tenant's employees and invitees. Landlord reserves the right in its
reasonable discretion and from time to time, to construct, maintain, operate,
repair, close, limit, take out of service, alter, change, and modify all or any
part of the Common Areas.
C. "Default Rate" shall mean eighteen percent (18%) per annum, or the highest
rate permitted by applicable law, whichever shall be less. If the application of
the Default Rate causes any provision of this Lease to be usurious or
unenforceable, the Default Rate shall automatically be reduced to the highest
rate allowed by law so as to prevent such result.
D. "Hazardous Materials" shall have the meaning set forth in Article 27.
E. "Landlord" and "Tenant" shall be applicable to one or more parties as the
case may be, and the singular shall include the plural, and the neuter shall
include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, affiliates,
successors and assigns.
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F. "Law" or "Laws" shall mean all federal, state, county ant local governmental
and municipal laws, statutes, ordinances, rules, regulations, codes, decrees,
orders and other such requirements, applicable equitable remedies and decisions
by courts in cases where such decisions are binding precedents in the state in
which the Building is located, and decisions of federal courts applying the Laws
of such state.
G. "Lease" shall mean thus lease executed between Tenant and Landlord, including
any extensions, amendments or modifications and any Exhibits attached hereto.
H. "Lease Year" shall mean each twelve (12) month period commencing on the
Commencement Date and expiring on each anniversary thereof during the Lease
Term.
I. "Lender" shall mean the holder of a Mortgage at the time in question, and
where such Mortgage is a ground leave, such term shall refer to the ground
lessee.
J. "Mortgage" shall mean all mortgages, deeds of trust, ground leases and other
such encumbrances now or hereafter places upon the Building or any part thereof
with the written consent of Landlord, and all renewals, modifications,
consolidations, replacements or extensions thereof, and all indebtedness now or
hereafter secured thereby and all interest thereon.
K. "Operating Expenses" shall mean all operating expenses of any kind or nature
which are necessary, ordinary or customarily incurred in connection with the
operation, maintenance or repair of the Building as determined by Landlord.
Operating Expenses shall include, but not be limited to:
1.1 costs of supplies, including, but not limited to, the cost of
relamping all Building standard lighting as the same may be
required from time to time;
1.2 costs incurred in connection with obtaining and providing
energy for the Building, including, but not limited to, costs
of propane, butane, natural gas, steam, electricity, solar
energy and fuel oils, coal or any other energy sources;
1.3 costs of water and sanitary and storm drainage services;
1.4 costs of janitorial and security services;
1.5 costs of general maintenance and repairs, including costs
under HVAC and other mechanical maintenance contracts and
maintenance, repairs and replacement of equipment and tools
used in connection with operating the Building;
1.6 costs of maintenance and replacement of landscaping;
1.7 insurance premiums, including fire and all-risk coverage,
together with loss of rent endorsements, the part of any claim
required to be paid under the deductible portion of any
insurance policies carried by Landlord in connection with the
Building (where Landlord is unable to obtain insurance without
such deductible
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from a major insurance carrier at reasonable rates), public
liability insurance and any other insurance carried by Landlord on
the Building, or any component parts thereof (all such insurance
shall be in such amounts as may be required by any holder of a
Mortgage or as Landlord may reasonably determine);
1.8 labor costs, including wages and other payments, costs of
Landlord of worker's compensation and disability insurance,
payroll taxes, welfare fringe benefits, and all legal fees and
other costs or expenses incurred in resolving any labor
dispute;
1.9 professional building management fees required for management of
the Building;
1.10 legal accounting, inspection, and other consultation fees
(including, without limitation, fees charged by consultants
retained by Landlord for services that are designed to produce
a reduction in Operating Expenses or to reasonably improve the
operation, maintenance or state of repair of the Building)
incurred in the ordinary course of operating the Building or
in connection with making the computations required hereunder
or in any audit of operations of the Building;
1.11 the costs of capital improvements or structural repairs or
replacements made in or to the Building in order to conform to
changes, subsequent to the date of this Lease, in any
applicable laws, ordinances, rules, regulations or orders of
any governmental or quasi-governmental authority having
jurisdiction over the Building (herein "Required Capital
Improvements") or the costs incurred by Landlord to install a
new or replacement capital item for the purpose of reducing
Operating Expenses (herein "Cost Savings Improvements"), and a
reasonable reserve for all other capital improvements and
structural repairs and replacements reasonably necessary to
permit Landlord to maintain the Building in its current class.
The expenditures for Required Capital Improvements and Cost
Savings Improvements shall be amortized over the useful life
of such capital improvement or structural repair or
replacement (as determined by Landlord). All costs so
amortized shall bear interest on the amortized balance at the
rate of twelve percent (12%) per annum or such higher rate as
may have been paid by Landlord on funds borrowed for the
purpose of constructing these capital improvements.
In making any computations contemplated hereby, Landlord shall also be permitted
to make such adjustments and modifications to the provisions of this paragraph
and Article 4 as shall be reasonable and necessary to achieve the intention of
the parties hereto.
L. "Rent" shall have the meaning specified therefor in Article 3.
M. "Tax" or "Taxes" shall mean:
1.1 all real property taxes and assessments levied against the
Building by any governmental or quasi-governmental authority.
The foregoing shall include all federal, state, county, or local
governmental, special district, improvement district, municipal
or other political subdivision taxes, fees, levies, assessments,
charges or
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other impositions of every kind and nature, whether general,
special, ordinary or extraordinary, respecting the Building,
including without limitation, real estate taxes, general and
special assessments, interest on any special assessments paid
in installments, transit taxes, water and sewer rents, taxes
based upon the receipt of rent, personal property taxes
imposed upon the fixtures, machinery, equipment, apparatus,
appurtenances, furniture and other personal property used in
connection with the Building which Landlord shall pay during
any calendar year, any portion of which occurs during the Term
(without regard to any different fiscal year used by such
government or municipal authority except as provided below).
Provided, however, any taxes which shall be levied on the
rentals of the Building shall be determined as if the Building
were Landlord's only property, and provided funkier that in no
event shall the term "taxes or assessment," as used herein,
include any net federal or state income taxes levied or
assessed on Landlord, unless such taxes are a specific
substitute for real property taxes. Such term shall, however,
include gross taxes on rentals. Expenses incurred by Landlord
for tax consultants and in contesting the amount or validity
of any such taxes or assessments shall be included in such
computations.
1.2 all "assessments", including so-called special assessments,
license tax, business license fee, business license tax, levy,
charge, penalty or tax imposed by any authority having the
direct power to tax, including any city, county, state or
federal government, or any school, agricultural, lighting,
water, drainage, or other improvement or special district
thereof, against the Premises of the Building or any legal or
equitable interest of Landlord therein. For the purposes of
this lease, any special assessments shall be deemed payable in
such number of installments as is permitted by law, whether or
not actually so paid. If as of the Commencement Date the
Building has not been fully assessed as a completed project,
for the purpose of computing the Operating Expenses for any
adjustment required herein or under Article 4, the Tax shall
be adjusted by Landlord, as of the date on which the
adjustment is to be made, to reflect full completion of the
Building including all standard Tenant finish work if the
method of taxation of real estate prevailing to the time of
execution hereof shall be, or has been altered, so as to cause
the whole or any part of the taxes now, hereafter or
theretofore levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially,
as a capital levy or otherwise, or on or measured by the rents
received therefrom, then such new or altered taxes
attributable to the Building shall be included within the term
real estate taxes, except that the same shall not include any
enhancement of said tax attributable to other income of
Landlord. All of the preceding clauses K(1.1 and 1.2) are
collectively referred to as the "Tax" or "Taxes".
All other capitalized terms shall have the definition set forth in the Lease.
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ARTICLE 30.
MISCELLANEOUS PROVISIONS
A. RULES AND REGULATIONS. Tenant shall comply with all of the rules and
regulations promulgated by Landlord from time to time for the Building. A copy
of the current rule and regulations is attached hereto as Exhibit D.
B. EXECUTION OF LEASE. If more than one person or entity executes this Lease as
Tenant, each such person or entity shall be jointly and severally liable for
observing and performing each of the terms, covenants, conditions and provisions
to be observed or performed by Tenant.
C. NOTICES. All notices under this Lease shall be in writing and will be deemed
sufficiently given for all purposes if, to Tenant, by delivery to Tenant at the
Premises during the hours the Building is open for business or by certified
mail, return receipt requested or by overnight delivery service (with one
acknowledged receipt), to Tenant at the address set forth below, and if to
Landlord, by certified mail, return receipt requested or by overnight delivery
service (with one acknowledged receipt), at the addresses set forth below.
Landlord: at the address shown in Article 1, item F
with a copy to: Building Manager at the address shown in Article 1, item G.
Tenant: at the address shown in Article 1, item B
with copy to: 1000 Parkwood Circle
Suite 400
Atlanta, GA 30339
D. TRANSFERS. The term "Landlord" appearing herein shall mean only the owner of
the Building from time to time and, upon a sale or transfer of its interest in
the Building, the then Landlord and transferring party shall have no further
obligations or liabilities for matters accruing after the date of transfer of
that interest and Tenant, upon such sale or transfer, shall look solely to the
successor owner and transferee of the Building for performance of Landlord's
obligations hereunder.
E. RELOCATION.
F. TENANT FINANCIAL STATEMENTS. Upon the written request of Landlord, Tenant
shall submit financial statements for its most recent financial reporting period
and for the prior Lease Year. Landlord shall make such request no more than
twice during any Lease Year. All such financial statements shall be certified as
true and correct by the responsible officer or partner of Tenant and if Tenant
is then in default hereunder, the financial statements shall be certified by an
independent certified public accountant.
G. RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease shall be
construed by the parties hereto, or by any third party, as constituting the
parties as principal and agent, partners or
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joint venturers, nor shall anything herein render either party (other than a
guarantor) liable for the debts and obligations of any other party, it being
understood and agreed that the only relationship between Landlord and Tenant is
that of Landlord and Tenant.
H. ENTIRE AGREEMENT; MERGER This Lease embodies the entire agreement and
understanding between the parties respecting the Lease and the Premises and
supersedes all prior negotiations, agreements and understandings between the
parties, all of which are merged herein. No provision of this Lease may be
modified, waived or discharged except by an instrument in writing signed by the
party against which enforcement of such modification, waiver or discharge is
sought.
I. NO REPRESENTATION BY LANDLORD. Neither Landlord nor any agent of Landlord
has made any representations, warranties, or promises with respect to the
Premises or the Building except as expressly set forth herein.
J. LIMITATION OF LIABILITY. Notwithstanding any provision in this Lease to the
contrary, under no circumstances shall Landlord's liability or that of its
directors, officers, employees and agents for failure to perform any obligations
arising out of or in connection with the Lease or for any breach of the terms or
conditions of this Lease (whether written or implied) exceed Landlord's equity
interest in the Building. Any judgments rendered against Landlord shall be
satisfied solely out of proceeds of sale of Landlord's interest in the Building.
No personal judgment shall lie against Landlord upon extinguishment of its
rights in the Building and any judgments so rendered shall not give rise to any
right of execution or levy against Landlord's assets. The provisions hereof
shall inure to Landlord's successors and assigns including any Lender. The
foregoing provisions are not intended to relieve Landlord from the performance
of any of Landlord's obligations under this Lease, but only to limit the
personal liability of Landlord in case of recovery of a judgment against
Landlord; nor shall the foregoing be deemed to limit Tenant's rights to obtain
injunctive relief or specific performance or other remedy which may be accorded
Tenant by law or under this Lease.
K. MEMORANDUM OF LEASE. Neither party, without the written consent of the
other, will execute or record any this Lease or any summary or memorandum of
this Lease in any public recorders office.
L. NO WAIVERS; AMENDMENTS. Failure of Landlord to insist upon strict compliance
by Tenant of any condition or provision of this Lease shall not be deemed a
waiver by Landlord of that condition. No waiver shall be effective against
Landlord unless in writing and signed by Landlord. Similarly, this Lease cannot
be amended except by a writing signed by Landlord and Tenant.
M. SUCCESSORS AND ASSIGNS. The conditions, covenants and agreements contained
herein shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, successors and assigns.
N. WAIVER OF JURY TRIAL; GOVERNING LAW. Landlord and Tenant hereby waive all
right to trial by jury in any claim, action proceeding or counterclaim by either
Landlord or Tenant against
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each other or any matter arising out of or in any way connected with this Lease,
the relationship of Landlord and Tenant, and/or Tenant's use or occupancy or the
Premises. This Lease shall be governed by the law of the State where the
Building is located.
O. EXHIBITS. All exhibits attached to this Lease are a put hereof and are
incorporated herein by reference and all provisions of such exhibits shall
constitute agreements, promises and covenants of this Lease.
P. CAPTIONS. The captions and headings used in this Lease are for convenience
only and in no way define or limit the scope, interpretation or content of this
Lease.
Q. COUNTERPARTS. This Lease may be executed in one (1) or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
R. TIME. TIME IS OF THE ESSENCE OF THIS AGREEMENT.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties have
duly executed this Lease with the Exhibits attached hereto, as of the day and
year first written above.
LANDLORD:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
- -----------------------
Witness By: CORNERSTONE REAL ESTATE ADVISERS, INC.
Its Authorized Agent
- -----------------------
Print Name
By:
- ----------------------- ----------------------------------
Witness Name Printed:
Title:
Date:
- -----------------------
Print Name
TENANT:
- -----------------------
Witness By:
---------------------------------------
Named Printed:
- ----------------------- Title:
Print Name Date:
- -----------------------
Witness
- -----------------------
Print Name
CERTIFICATE OF TENANT
(IF A CORPORATION OF PARTNERSHIP)
I, ____________________________________, Secretary of Suburban Lodges
of American, Inc., Tenant, hereby certify that the officers or partners
executing the foregoing Lease on behalf of Tenant is/are duly authorized to act
on behalf of and bind the Tenant.
(CORPORATE SEAL)
----------------------------
Secretary of General Partner
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