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200 WEST ▇▇▇▇▇
STANDARD FORM OFFICE LEASE
BETWEEN
EOP OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership
("LANDLORD")
AND
ADVANCED HEALTH CORPORATION, a Delaware corporation
("TENANT")
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I. Basic Lease Information; Definitions ......................... 1
II. Lease Grant .................................................. 3
III. Adjustment of Commencement Date/Possession ................... 3
IV. Rent ......................................................... 4
V. Use .......................................................... 8
VI. Security Deposit ............................................. 9
VII. Services to be Furnished by Landlord ......................... 9
VIII. Leasehold Improvements ....................................... 10
IX. Graphics ..................................................... 10
X. Repairs and Alterations ...................................... 10
XI. Use of Electrical Services by Tenant ......................... 12
XII. Entry by Landlord ............................................ 12
XIII. Assignment and Subletting .................................... 13
XIV. Liens ........................................................ 14
XV. Indemnity and Waiver of Claims ............................... 14
XVI. Tenant's Insurance ........................................... 15
XVII. Subrogation .................................................. 16
XVIII. Landlord's Insurance ......................................... 17
XIX. Casualty Damage .............................................. 17
XX. Demolition ................................................... 17
XXI. Condemnation ................................................. 18
XXII. Events of Default ............................................ 18
XXIII. Remedies ..................................................... 19
XXIV. LIMITATION OF LIABILITY ...................................... 21
XXV. No Waiver .................................................... 21
XXVI. Event of Bankruptcy .......................................... 21
XXVII. Waiver of Jury Trial ......................................... 22
XXVIII. Relocation ................................................... 22
XXIX. Holding Over ................................................. 22
XXX. Subordination to Mortgages; Estoppel Certificate ............. 23
XXXI. Attorneys' Fees .............................................. 23
XXXII. Notice ....................................................... 23
XXXIII. Landlord's Lien .............................................. 24
XXXIV. Excepted Rights .............................................. 24
XXXV. Surrender of Premises ........................................ 25
XXXVI. Miscellaneous ................................................ 25
XXXVII. Entire Agreement ............................................. 27
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OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as of
the 16 day of April, 1999, by and between EOP OPERATING LIMITED PARTNERSHIP, a
Delaware limited partnership ("Landlord") and ADVANCED HEALTH CORPORATION, a
Delaware corporation ("Tenant").
I. Basic Lease Information; Definitions.
A. The following are some of the basic lease information and defined
terms used in this Lease.
1. "Additional Base Rental" shall mean Tenant's Pro Rata Share of
Basic Costs and any other sums (exclusive of Base Rental) that
are required to be paid by Tenant to Landlord hereunder, which
sums are deemed to be additional rent under this Lease.
Additional Base Rental and Base Rental are sometimes
collectively referred to herein as "Rent".
2. "Base Rental" shall mean the sum of One Hundred Forty Four
Thousand Three Hundred Forty Eight and no/100 Dollars
($144,348.00), payable by Tenant to Landlord in thirty-six
(36) monthly installments as follows:
a. Twelve (12) equal installments of Three Thousand Eight
Hundred Thirty Five and 33/100 Dollars ($3,835.33), each
payable on or before the first day of each month during
the period beginning May 1,1999, and ending April 30,
2000, provided that the installment of Base Rental for
the first full calendar month of the Lease Term shall be
payable upon the execution of this Lease by Tenant.
b. Twelve (12) equal installments of Four Thousand Nine and
67/100 Dollars ($4,009.67), each payable on or before
the first day of each month during the period beginning
May 1, 2000, and ending April 30, 2001.
c. Twelve (12) equal installments of Four Thousand One
Hundred Eighty Four and No/100 Dollars ($4,184.00), each
payable on or before the first day of each month during
the period beginning May 1, 2001, and ending April 30,
2002.
3. "Building" shall mean the office building located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇▇, State of
Illinois, commonly known as 200 West ▇▇▇▇▇.
4. The "Commencement Date", "Lease Term" and "Termination Date"
shall have the meanings set forth in subsection l.A.4.a. below
or subsection I.A.4.b. below (delete one):
a. The "Lease Term" shall mean a period of thirty-six
(36) months, commencing on May 1, 1999, (the
"Commencement Date") and, unless sooner terminated
as provided herein, ending on April 30, 2002, (the
"Termination Date").
b. INTENTIONALLY DELETED
5. Premises" shall mean the area located on the seventeenth
(171h) floor of the Building, as outlined on Exhibit A
attached hereto and incorporated herein and known as Suite
#1700. Landlord and Tenant hereby stipulate and agree that the
"Rentable Area of the Premises" shall mean 4,184 square feet
and the "Rentable Area of the Building" shall mean 661,460
square feet. If the Premises being leased to Tenant hereunder
include one or more floors within the Building in their
entirety, the definition of Premises with respect to such full
floor(s) shall include all corridors and restroom facilities
located on such floor(s). Notwithstanding the foregoing,
unless specifically provided herein to the contrary, the
Premises shall not include any telephone closets, electrical
closets, janitorial closets, equipment rooms or similar areas
on any full or partial floor that are used by Landlord for the
operation of the Building.
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6. "Permitted Use" shall mean general office use.
7. "Security Deposit" shall mean the sum of None Dollars ($0.00).
8. "Tenant's Pro Rata Share" shall mean six thousand three
hundred twenty five ten thousandths percent (0.6325%), which
is the quotient (expressed as a percentage), derived by
dividing the Rentable Area of the Premises by the Rentable
Area of the Building.
9. INTENTIONALLY OMITTED
10. "Notice Addresses" shall mean the following addresses for
Tenant and Landlord, respectively:
Tenant:
On and after the Commencement Date, notices shall be sent to
Tenant at the Premises.
Prior to the Commencement Date, notices shall be sent to
Tenant at the following address:
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
Advanced Health Corporation
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▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CFO
Landlord:
Equity Office Properties
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Property Manager
With a copy to:
EOP Operating Limited Partnership
c/o Equity Office Properties Trust
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Regional Counsel - Central
Payments of Rent only shall be made payable to the order of:
Equity Office Properties
at the following address:
EOP for ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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B. The following are additional definitions of some of the defined
terms used in the Lease.
1. INTENTIONALLY OMITTED.
2. "Basic Costs" shall mean all costs and expenses paid or
incurred in connection with operating, maintaining, repairing,
managing and owning the Building and the Property, as further
described in Article IV hereof.
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3. "Broker" means Equity Office Properties Trust.
4. "Building Standard" shall mean the type, grade, brand, quality
and/or quantity of materials Landlord designates from time to
time to be the minimum quality and/or quantity to be used in
the Building.
5. "Business Day(s)" shall mean Mondays through Fridays exclusive
of the normal business holidays ("Holidays") of New Year's
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day and Christmas Day. Landlord, from time to time during the
Lease Term, shall have the right to designate additional
Holidays, provided that such additional Holidays are commonly
recognized by other office buildings in the area where the
Building is located.
6. "Common Areas" shall mean those areas provided for the common
use or benefit of all tenants generally and/or the public,
such as corridors, elevator foyers, common mail rooms,
restrooms, vending areas, lobby areas (whether at ground level
or otherwise) and other similar facilities.
7. "Landlord Work" shall mean the work, if any, that Landlord is
obligated to perform in the Premises pursuant to the Work
Letter Agreement, if any, attached hereto as Exhibit D. (If
applicable.)
8. "Maximum Rate" shall mean the greatest per annum rate of
interest permitted from time to time under applicable law.
9. "Normal Business Hours" for the Building shall mean 8:00 A.M.
to 6:00 P.M. Mondays through Fridays, and 8:00 A.M. to 1:00
P.M. on Saturdays, exclusive of Holidays.
10. "Prime Rate" shall mean the per annum interest rate publicly
announced by The First National Bank of Chicago or any
successor thereof from time to time (whether or not charged in
each instance) as its prime or base rate in Chicago, Illinois.
11. "Property" shall mean the Building and the parcel(s) of land
on which it is located and, at Landlord's discretion, the
Building garage, if any, and all other improvements owned by
Landlord and serving the Building and the tenants thereof and
the parcel(s) of land on which they are located.
II. Lease Grant.
Subject to and upon the terms herein set forth, Landlord leases to Tenant
and Tenant leases from Landlord the Premises, together with the right, in common
with others, to use the Common Areas.
III. Adjustment of Commencement Date/Possession
A. INTENTIONALLY OMITTED
B. By taking possession of the Premises, Tenant is deemed to have
accepted the Premises and agreed that the Premises is in good order
and satisfactory condition, with no representation or warranty by
Landlord as to the condition of the Premises or the Building or
suitability thereof for Tenant's use.
C. Notwithstanding anything to the contrary contained in the Lease,
Landlord shall not be obligated to tender possession of any portion
of the Premises or other space leased by Tenant from time to time
hereunder that, on the date possession is to be delivered, is
occupied by a tenant or other occupant or that is subject to the
rights of any other tenant or occupant, nor shall Landlord have any
other obligations to Tenant under this Lease with respect to such
space until the date Landlord: (1) recaptures such space from such
existing tenant or occupant; and (2) regains the legal right to
possession thereof. This Lease shall not be affected by any such
failure to deliver possession and Tenant shall have no claim for
damages against Landlord as a result thereof, all of which are
hereby waived and released by Tenant.
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Landlord and Tenant acknowledge that Tenant is presently occupying
other premises in the Building known as Suite 1000 ("Suite 1000")
pursuant to that certain Office Lease dated December 8, 1995 by and
between Landlord's predecessor-in-interest and Tenant, which lease
has been terminated effective March 31, 1999 pursuant to Section
30(a) thereof. In the event Landlord fails or is unable to tender
possession of the Premises to Tenant on or before the Commencement
Date for any reason whatsoever, Tenant shall continue to occupy
Suite 1000 under the terms and provisions of this Lease as if Suite
1000 were the Premises hereunder until such date as Landlord tenders
possession of the Premises to Tenant, except that in no event shall
Rent and any other charges payable by Tenant hereunder be altered in
any way by reason of the fact that Tenant may be occupying Suite
1000 in lieu of the Premises as provided above.
D. If Tenant takes possession of the Premises prior to the Commencement
Date, such possession shall be subject to all the terms and
conditions of the Lease except that Tenant shall not be required to
pay Base Rental or Additional Base Rental with respect to the period
of time prior to the Commencement Date. Tenant shall, however, be
liable for the cost of any services (e.g. electricity, HVAC, freight
elevators) that are provided to Tenant or the Premises during the
period of Tenant's possession prior to the Commencement Date.
Nothing herein shall be construed as granting Tenant the right to
take possession of the Premises prior to the Commencement Date,
whether for construction, fixturing or any other purpose, without
the prior consent of Landlord.
IV. Rent.
A. During each calendar year, or portion thereof, falling within the
Lease Term, Tenant shall pay to Landlord as Additional Base Rental
hereunder Tenant's Pro Rata Share of Basic Costs (as defined below)
for the applicable calendar year. Prior to the Commencement Date and
prior to January 1 of each calendar year during the Lease Term, or
as soon thereafter as practical, Landlord shall make a good faith
estimate of Basic Costs for the applicable calendar year and
Tenant's Pro Rata Share thereof. On or before the first day of each
month during such calendar year, Tenant shall pay to Landlord, as
Additional Base Rental, a monthly installment equal to one-twelfth
of Tenant's Pro Rata Share of Landlord's estimate of Basic Costs.
Landlord shall have the right from time to time during any such
calendar year to revise the estimate of Basic Costs for such year
and provide Tenant with a revised statement therefor, and thereafter
the amount Tenant shall pay each month shall be based upon such
revised estimate. If Landlord does not provide Tenant with an
estimate of the Basic Costs by January 1 of any calendar year,
Tenant shall continue to pay a monthly installment based on the
previous year's estimate until such time as Landlord provides Tenant
with an estimate of Basic Costs for the current year. Upon receipt
of such current year's estimate, an adjustment shall be made for any
month during the current year with respect to which Tenant paid
monthly installments of Additional Base Rental based on the previous
year's estimate. Tenant shall pay to Landlord for any underpayment
within ten (10) days after demand. Any overpayment shall, at
Landlord's option, be refunded to Tenant or credited against the
installment of Additional Base Rental due for the months immediately
following the furnishing of such estimate. Any amounts paid by
Tenant based on any estimate shall be subject to adjustment pursuant
to the immediately following paragraph when actual Basic Costs are
determined for such calendar year.
As soon as is practical following the end of each calendar year
during the Lease Term, Landlord shall furnish to Tenant a statement
of Landlord's actual Basic Costs for the previous calendar year. If
the amount of estimated Basic Costs actually paid by Tenant for the
prior year is in excess of Tenant's actual Pro Rata Share of Basic
Costs for such prior year, then Landlord shall apply such
overpayment against Additional Base Rental due or to become due
hereunder, provided if the Lease Term expires prior to the
determination of such overpayment, Landlord shall refund such
overpayment to Tenant after first deducting the amount of any Rent
due hereunder. Likewise, Tenant shall pay to Landlord, within ten
(10) days after demand, any underpayment with respect to the prior
year, whether or not the Lease has terminated prior to receipt by
Tenant of a statement for such underpayment, it being understood
that this clause shall survive the expiration of the Lease.
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B. Basic Costs shall mean all costs and expenses paid or incurred in
each calendar year in connection with operating, maintaining,
repairing, managing and owning the Building and the Property,
including, but not limited to, the following:
1. All labor costs for all persons performing services required
or utilized in connection with the operation, repair,
replacement and maintenance of and control of access to the
Building and the Property, including but not limited to
amounts incurred for wages, salaries and other compensation
for services, payroll, social security, unemployment and other
similar taxes, workers' compensation insurance, uniforms,
training, disability benefits, pensions, hospitalization,
retirement plans, group insurance or any other similar or like
expenses or benefits.
2. All management fees, the cost of equipping and maintaining a
management office at the Building, accounting services, legal
fees not attributable to leasing and collection activity, and
all other administrative costs relating to the Building and
the Property. If management services are not provided by a
third party, Landlord shall be entitled to a management fee
comparable to that due and payable to third parties provided
Landlord or management companies owned by, or management
divisions of, Landlord perform actual management services of a
comparable nature and type as normally would be performed by
third parties.
3. All rental and/or purchase costs of materials, supplies, tools
and equipment used in the operation, repair, replacement and
maintenance and the control of access to the Building and the
Property.
4. All amounts charged to Landlord by contractors and/or
suppliers for services, replacement parts, components,
materials, equipment and supplies furnished in connection with
the operation, repair, maintenance, replacement of and control
of access to any part of the Building, or the Property
generally, including the heating, air conditioning,
ventilating, plumbing, electrical, elevator and other systems
and equipment. At Landlord's option, major repair items may be
amortized over a period of up to five (5) years.
5. All premiums and deductibles paid by Landlord for fire and
extended coverage insurance, earthquake and extended coverage
insurance, liability and extended coverage insurance, rental
loss insurance, elevator insurance, boiler insurance and other
insurance customarily carried from time to time by landlords
of comparable office buildings or required to be carried by
Landlord's Mortgagee.
6. Charges for water, gas, steam and sewer, but excluding those
charges for which Landlord is otherwise reimbursed by tenants,
and charges for Electrical Costs. For purposes hereof, the
term "Electrical Costs" shall mean: (i) all charges paid by
Landlord for electricity supplied to the Building, Property
and Premises, regardless of whether such charges are
characterized as distribution charges, transmission charges,
generation charges, public good charges, disconnection
charges, competitive transaction charges, stranded cost
recoveries or otherwise; (ii) except to the extent otherwise
included in Basic Costs, any costs incurred in connection with
the energy management program for the Building, Property and
Premises, including any costs incurred for the replacement of
lights and ballasts and the purchase and installation of
sensors and other energy saving equipment; and (iii) if and to
the extent permitted by law, a reasonable fee for the services
provided by Landlord in connection with the selection of
utility companies and the negotiation and administration of
contracts for the generation of electricity. Notwithstanding
the foregoing, Electrical Costs shall be adjusted as follows:
(a) any amounts received by Landlord as reimbursement for
above standard electrical consumption shall be deducted from
Electrical Costs, (b) the cost of electricity incurred in
providing overtime HVAC to specific tenants shall be deducted
from Electrical Costs, it being agreed that the electrical
component of overtime HVAC Costs shall be calculated as a
reasonable percentage of the total HVAC costs charged to such
tenants, and (c) if Tenant is billed directly for the cost of
electricity to the Premises as a separate charge in addition
to Base Rental and Basic Costs,
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the cost of electricity to individual tenant spaces in the
Building shall be deducted from Electrical Costs.
7. "Taxes", which for purposes hereof, shall mean: (a) all real
estate taxes and assessments on the Property, the Building or
the Premises, and taxes and assessments levied in substitution
or supplementation in whole or in part of such taxes, (b) all
personal property taxes for the Building's personal property,
including license expenses, (c) all taxes imposed on services
of Landlord's agents and employees, (d) all other taxes, fees
or assessments now or hereafter levied by any governmental
authority on the Property, the Building or its contents or on
the operation and use thereof (except as relate to specific
tenants), and (e) all costs and fees incurred in connection
with seeking reductions in or refunds in Taxes including,
without limitation, any costs incurred by Landlord to
challenge the tax valuation of the Building, but excluding
income taxes. For the purpose of determining real estate taxes
and assessments for any given calendar year, the amount to be
included in Taxes for such year shall be as follows: (1) with
respect to any special assessment that is payable in
installments, Taxes for such year shall include the amount of
the installment (and any interest) due and payable during such
year; and (2) with respect to all other real estate taxes,
Taxes for such year shall, at Landlord's election, include
either the amount accrued, assessed or otherwise imposed for
such year or the amount due and payable for such year,
provided that Landlord's election shall be applied
consistently throughout the Lease Term. If a reduction in
Taxes is obtained for any year of the Lease Term during which
Tenant paid its Pro Rata Share of Basic Costs, then Basic
Costs for such year will be retroactively adjusted and
Landlord shall provide Tenant with a credit, if any, based on
such adjustment. Likewise, if a reduction is subsequently
obtained for Taxes for the Base Year (if Tenant's Pro Rata
Share is based upon increases in Basic Costs over a Base
Year), Basic Costs for the Base Year shall be restated and the
Excess for all subsequent years recomputed. Tenant shall pay
to Landlord Tenant's Pro Rata Share of any such increase in
the Excess within thirty (30) days after Tenant's receipt of a
statement therefor from Landlord.
8. All landscape expenses and costs of maintaining, repairing,
resurfacing and striping of the parking areas and garages of
the Property, if any.
9. Cost of all maintenance service agreements, including those
for equipment, alarm service, window cleaning, drapery or
venetian blind cleaning, janitorial services, pest control,
uniform supply, plant maintenance, landscaping, and any
parking equipment.
10. Cost of all other repairs, replacements and general
maintenance of the Property and Building neither specified
above nor directly billed to tenants.
11. The amortized cost of capital improvements made to the
Building or the Property which are: (a) primarily for the
purpose of reducing operating expense costs or otherwise
improving the operating efficiency of the Property or
Building; or (b) required to comply with any laws, rules or
regulations of any governmental authority or a requirement of
Landlord's insurance carrier. The cost of such capital
improvements shall be amortized over a period of five (5)
years and shall, at Landlord's option, include interest at a
rate that is reasonably equivalent to the interest rate that
Landlord would be required to pay to finance the cost of the
capital improvement in question as of the date such capital
improvement is performed, provided if the payback period for
any capital improvement is less than five (5) years, Landlord
may amortize the cost of such capital improvement over the
payback period.
12. Any other expense or charge of any nature whatsoever which, in
accordance with general industry practice with respect to the
operation of a first-class office building, would be construed
as an operating expense.
Basic Costs shall not include the cost of capital improvements
(except as set forth above and as distinguished from replacement
parts or components purchased and installed in the ordinary course),
depreciation, interest (except as provided above with respect to the
amortization of capital improvements), lease commissions, and
principal payments on mortgage and other non-operating debts of
Landlord. In
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addition, if Landlord incurs any common Expenses in connection with
the Building and one or more other buildings, the cost of such
Expenses shall be equitably prorated between the Building and such
other buildings. If the Building is not at least ninety-five percent
(95%) occupied during any calendar year of the Lease Term or if
Landlord is not supplying services to at least ninety-five percent
(95%) of the total Rentable Area of the Building at any time during
any calendar year of the Lease Term, actual Basic Costs for purposes
hereof shall, at Landlord's option, be determined as if the Building
had been ninety-five percent (95%) occupied and Landlord had been
supplying services to ninety-five percent (95%) of the Rentable Area
of the Building during such year. If Tenant pays for its Pro Rata
Share of Basic Costs based on increases over a "Base Year and Basic
Costs for any calendar year during the Lease Term are determined as
provided in the foregoing sentence, Basic Costs for such Base Year
shall also be determined as if the Building had been ninety-five
percent (95%) occupied and Landlord had been supplying services to
ninety-five percent (95%) of the Rentable Area of the Building. Any
necessary extrapolation of Basic Costs under this Article shall be
performed by adjusting the cost of those components of Basic Costs
that are impacted by changes in the occupancy of the Building
(including, at Landlord's option, Taxes) to the cost that would have
been incurred if the Building had been ninety-five percent (95%)
occupied and Landlord had been supplying services to ninety-five
percent (95%) of the Rentable Area of the Building. In addition, if
Tenant's Pro Rata Share of Basic Costs is determined based upon
increases over a Base Year and Basic Costs for the Base Year include
exit and disconnection fees, stranded cost charges and/or
competitive transaction charges, such fees and charges may, at
Landlord's option, be imputed as a Basic Cost for subsequent years
in which such fees and charges are not incurred. In no event,
however, shall the amount of such imputed fees and charges exceed
the actual amount of exit and disconnection fees, stranded cost
charges and/or competitive transaction charges that were actually
included in Basic Costs for the Base Year.
C. If Basic Costs for any calendar year increase by more than five
percent (5%) over Basic Costs for the immediately preceding calendar
year, Tenant, within ninety (90) days after receiving Landlord's
statement of actual Basic Costs for a particular calendar year,
shall have the right to provide Landlord with written notice (the
"Review Notice") of its intent to review Landlord's books and
records relating to the Basic Costs for such calendar year. Within a
reasonable time after receipt of a timely Review Notice, Landlord
shall make such books and records available to Tenant or Tenant's
agent for its review at either Landlord's home office or at the
office of the Building, provided that if Tenant retains an agent to
review Landlord's books and records for any calendar year, such
agent must be CPA firm licensed to do business in the state in which
the Building is located. Tenant shall be solely responsible for any
and all costs, expenses and fees incurred by Tenant or Tenant's
agent in connection with such review. If Tenant elects to review
Landlord's books and records, within thirty (30) days after such
books and records are made available to Tenant, Tenant shall have
the right to give Landlord written notice stating in reasonable
detail any objection to Landlord's statement of actual Basic Costs
for such calendar year. If Tenant fails to give Landlord written
notice of objection within such thirty (30) day period or fails to
provide Landlord with a Review Notice within the ninety (90) day
period provided above, Tenant shall be deemed to have approved
Landlord's statement of Basic Costs in all respects and shall
thereafter be barred from raising any claims with respect thereto.
Upon Landlord's receipt of a timely objection notice from Tenant,
Landlord and Tenant shall work together in good faith to resolve the
discrepancy between Landlord's statement and Tenant's review. If
Landlord and Tenant determine that Basic Costs for the calendar year
in question are less than reported, Landlord shall provide Tenant
with a credit against future Additional Base Rental in the amount of
any overpayment by Tenant. Likewise, if Landlord and Tenant
determine that Basic Costs for the calendar year in question are
greater than reported, Tenant shall forthwith pay to Landlord the
amount of underpayment by Tenant. Any information obtained by Tenant
pursuant to the provisions of this Section shall be treated as
confidential. Notwithstanding anything herein to the contrary,
Tenant shall not be permitted to examine Landlord's books and
records or to dispute any statement of Basic Costs unless Tenant has
paid to Landlord the amount due as shown on Landlord's statement of
actual Basic Costs, said payment being a condition precedent to
Tenant's right to examine Landlord's books and records.
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D. Tenant covenants and agrees to pay to Landlord during the Lease
Term, without any setoff or deduction whatsoever, the full amount of
all Base Rental and Additional Base Rental due hereunder. In
addition, Tenant shall pay and be liable for, as additional rent,
all rental, sales and use taxes or other similar taxes, if any,
levied or imposed by any city, state, county or other governmental
body having authority, such payments to be in addition to all other
payments required to be paid to Landlord by Tenant under the terms
and conditions of this Lease. Any such payments shall be paid
concurrently with the payments of the Rent on which the tax is
based. The Base Rental, Tenant's Pro Rata Share of Basic Costs and
any recurring monthly charges due hereunder shall be due and payable
in advance on the first day of each calendar month during the Lease
Term without demand, provided that the installment of Base Rental
for the first full calendar month of the Lease Term shall be payable
upon the execution of this Lease by Tenant. All other items of Rent
shall be due and payable by Tenant on or before ten (10) days after
billing by Landlord. If the Lease Term commences on a day other than
the first day of a calendar month or terminates on a day other than
the last day of a calendar month, then the monthly Base Rental and
Tenant's Pro Rata Share of Basic Costs for such month shall be
prorated for the number of days in such month occurring within the
Lease Term based on a fraction, the numerator of which is the number
of days of the Lease Term that fell within such calendar month and
the denominator of which is thirty (30). All such payments shall be
by a good and sufficient check. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the correct amount of
Rent due under this Lease shall be deemed to be other than a payment
on account of the earliest Rent due hereunder, nor shall any
endorsement or statement on any check or any letter accompanying any
check or payment be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's
right to recover the balance or pursue any other available remedy.
The acceptance by Landlord of any Rent on a date after the due date
of such payment shall not be construed to be a waiver of Landlord's
right to declare a default for any other late payment. Tenant's
covenant to pay Rent shall be independent of every other covenant
set forth in this Lease.
E. All Rent not paid when due and payable shall bear interest from the
date due until paid at the lesser of: (1) eighteen percent (18%) per
annum; or (2) the Maximum Rate. In addition, if Tenant fails to pay
any installment of Rent when due and payable hereunder, a service
fee equal to five percent (5%) of such unpaid amount will be due and
payable immediately by Tenant to Landlord.
V. Use.
The Premises shall be used for the Permitted Use and for no other purpose.
Tenant agrees not to use or permit the use of the Premises for any purpose which
is illegal, dangerous to life, limb or property or which, in Landlord's
reasonable opinion, creates a nuisance or which would increase the cost of
insurance coverage with respect to the Building. Tenant shall conduct its
business and control its agents, servants, contractors, employees, customers,
licensees, and invitees in such a manner as not to interfere with, annoy or
disturb other tenants, or in any way interfere with Landlord in the management
and operation of the Building. Tenant will maintain the Premises in a clean and
healthful condition, and comply with all laws, ordinances, orders, rules and
regulations of any governmental entity with reference to the operation of
Tenant's business and to the use, condition, configuration or occupancy of the
Premises, including without limitation, the Americans with Disabilities Act
(collectively referred to as "Laws"). Tenant, within ten (10) days after receipt
thereof, shall provide Landlord with copies of any notices it receives with
respect to a violation or alleged violation of any Laws. Tenant shall reimburse
and compensate Landlord for all expenditures made by, or damages or fines
sustained or incurred by, Landlord due to any violations of Laws by Tenant or
any Tenant Related Parties with respect to the Premises. Tenant will comply with
the rules and regulations of the Building attached hereto as Exhibit B and such
other rules and regulations adopted and altered by Landlord from time to time
and will cause all of its agents, servants, contractors, employees, customers,
licensees and invitees to do so. All changes to such rules and regulations will
be reasonable and shall be sent by Landlord to Tenant in writing.
VI. Security Deposit
The Security Deposit shall be delivered to Landlord upon the execution of
this Lease by Tenant and shall be held by Landlord without liability for
interest (except as required by law) and as security for the performance of
Tenant's obligations under this Lease. The Security Deposit shall not be
considered an advance payment of Rent or a measure of Tenant's liability for
damages.
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Landlord may, from time to time, without prejudice to any other remedy, use all
or a portion of the Security Deposit to make good any arrearage of Rent, to
repair damages to the Premises, to clean the Premises upon termination of this
Lease or otherwise to satisfy any other covenant or obligation of Tenant
hereunder. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. If Tenant is not in default at the termination
of this Lease, after Tenant surrenders the Premises to Landlord in accordance
with this Lease and all amounts due Landlord from Tenant are finally determined
and paid by Tenant or through application of the Security Deposit, the balance
of the Security Deposit remaining after any such application shall be returned
to Tenant. If Landlord transfers its interest in the Premises during the Lease
Term, Landlord may assign the Security Deposit to the transferee and thereafter
shall have no further liability for the return of such Security Deposit. Tenant
agrees to look solely to such transferee or assignee for the return of the
Security Deposit. Landlord and its successors and assigns shall not be bound by
any actual or attempted assignment or encumbrance of the Security Deposit by
Tenant, provided, however, if Tenant's interest in this Lease has been assigned,
Landlord shall, provided that Landlord has been furnished with a fully executed
copy of the agreement assigning such Security Deposit, return the Security
Deposit to such assignee in accordance with the terms and conditions hereof. If
Landlord returns the Security Deposit to Tenant's assignee as aforesaid,
Landlord will have no further obligation to any party with respect thereto.
Landlord shall not be required to keep the Security Deposit separate from its
other accounts.
VII. Services to be Furnished by Landlord.
A. Landlord, as part of Basic Costs (except as otherwise provided),
agrees to furnish Tenant the following services:
13. Water for use in the lavatories on the floor(s) on which the
Premises is located. If Tenant desires water in the Premises
for any approved reason, including a private lavatory or
kitchen, cold water shall be supplied, at Tenant's sole cost
and expense, from the Building water main through a line and
fixtures installed at Tenant's sole cost and expense with the
prior reasonable consent of Landlord. If Tenant desires hot
water in the Premises, Tenant, at its sole cost and expense
and subject to the prior reasonable consent of Landlord, may
install a hot water heater in the Premises. Tenant shall be
solely responsible for maintenance and repair of any such hot
water heater.
14. Central heat and air conditioning in season during Normal
Business Hours, at such temperatures and in such amounts as
are considered by Landlord, in its reasonable judgment, to be
standard for buildings of similar class, size, age and
location, or as required by governmental authority. In the
event that Tenant requires central heat, ventilation or air
conditioning at hours other than Normal Business Hours, such
central heat, ventilation or air conditioning shall be
furnished only upon the written request of Tenant delivered to
Landlord at the office of the Building prior to 3:00 P.M. at
least one Business Day in advance of the date for which such
usage is requested. Tenant shall pay Landlord, as Additional
Base Rental, the entire cost of additional service as such
costs are determined by Landlord from time to time.
15. Maintenance and repair of all Common Areas in the manner and
to the extent reasonably deemed by Landlord to be standard for
buildings of similar class, size, age and location.
16. Janitor service on Business Days; provided, however, if
Tenant's use, floor covering or other improvements require
special services, Tenant shall pay the additional cost
reasonably attributable thereto as Additional Base Rental.
17. Passenger elevator service in common with other tenants of the
Building.
18. Electricity to the Premises for general office use, in
accordance with and subject to the terms and conditions set
forth in Article XI of this Lease.
B. The failure by Landlord to any extent to furnish, or the
interruption or termination of any services in whole or in part,
resulting from adherence to laws, regulations and administrative
orders, wear, use, repairs, improvements, alterations or any causes
beyond the reasonable control of Landlord shall not render Landlord
liable in any
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respect nor be construed as a constructive eviction of Tenant, nor
give rise to an abatement of Rent, nor relieve Tenant from the
obligation to fulfill any covenant or agreement hereof. Should any
of the equipment or machinery used in the provision of such services
for any cause cease to function properly, Landlord shall use
reasonable diligence to repair such equipment or machinery.
C. Tenant expressly acknowledges that if Landlord, from time to time,
elects to provide security services, Landlord shall not be deemed to
have warranted the efficiency of any security personnel, service,
procedures or equipment and Landlord shall not be liable in any
manner for the failure of any such security personnel, services,
procedures or equipment to prevent or control, or apprehend anyone
suspected of personal injury, property damage or any criminal
conduct in, on or around the Property.
VIII. Leasehold Improvements.
Any trade fixtures, unattached and movable equipment or furniture, or
other personalty brought into the Premises by Tenant ("Tenant's Property") shall
be owned and insured by Tenant. Tenant shall remove all such Tenant's Property
from the Premises in accordance with the terms of Article XXXV hereof. Any and
all alterations, additions and improvements to the Premises, including any
built-in furniture (collectively, "Leasehold Improvements") shall be owned and
insured by Landlord and shall remain upon the Premises, all without
compensation, allowance or credit to Tenant. Landlord may, nonetheless, at any
time prior to, or within six (6) months after, the expiration or earlier
termination of this Lease or Tenant's right to possession, require Tenant to
remove any Leasehold Improvements performed by or for the benefit of Tenant and
all electronic, phone and data cabling as are designated by Landlord (the
"Required Removables") at Tenant's sole cost. In the event that Landlord so
elects, Tenant shall remove such Required Removables within ten (10) days after
notice from Landlord, provided that in no event shall Tenant be required to
remove such Required Removables prior to the expiration or earlier termination
of this Lease or Tenant's right to possession. In addition to Tenant's
obligation to remove the Required Removables, Tenant shall repair any damage
caused by such removal and perform such other work as is reasonably necessary to
restore the Premises to a "move in" condition. If Tenant fails to remove any
specified Required Removables or to perform any required repairs and restoration
within the time period specified above, Landlord, at Tenant's sole cost and
expense, may remove, store, sell and/or dispose of the Required Removables and
perform such required repairs and restoration work. Tenant, within five (5) days
after demand from Landlord, shall reimburse Landlord for any and all reasonable
costs incurred by Landlord in connection with the Required Removables.
IX.C Graphics.
Landlord shall provide and install, at Tenant's cost, any suite numbers
and Tenant identification on the exterior of the Premises using the standard
graphics for the Building. Tenant shall not be permitted to install any signs or
other identification without Landlord's prior written consent.
X.C Repairs and Alterations.
D. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant, at its sole cost and expense, shall perform all
maintenance and repairs to the Premises as are necessary to keep the
same in good condition and repair throughout the entire Lease Term,
reasonable wear and tear excepted. Tenant's repair and maintenance
obligations with respect to the Premises shall include, without
limitation, any necessary repairs with respect to: (1) any carpet or
other floor covering, (2) any interior partitions, (3) any doors,
(4) the interior side of any demising walls, (5) any telephone and
computer cabling that serves Tenant's equipment exclusively, (6) any
supplemental air conditioning units, private showers and kitchens,
including any plumbing in connection therewith, and similar
facilities serving Tenant exclusively, and (7) any alterations,
additions or improvements performed by contractors retained by
Tenant. All such work shall be performed in accordance with section
X.B. below and the rules, policies and procedures reasonably enacted
by Landlord from time to time for the performance of work in the
Building. If Tenant fails to make any necessary repairs to the
Premises, Landlord may, at its option, make such repairs, and Tenant
shall pay the cost thereof to the Landlord on demand as Additional
Base Rental, together with an administrative charge in an amount
equal to ten percent (10%) of the cost of such repairs. Landlord
shall, at its expense (except as included in Basic Costs), keep and
maintain
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in good repair and working order and make all repairs to and perform
necessary maintenance upon: (a) all structural elements of the
Building; and (b) all mechanical, electrical and plumbing systems
that serve the Building in general; and (c) the Building facilities
common to all tenants including, but not limited to, the ceilings,
walls and floors in the Common Areas. In addition, Landlord may
elect, at the expense of Tenant, to repair any damage or injury to
the Building caused by moving property of Tenant in or out of the
Building, or by installation or removal of furniture or other
property, or by misuse by, or neglect, or improper conduct of,
Tenant or any Tenant Related Parties (hereinafter defined).
E. Tenant shall not make or allow to be made any alterations, additions
or improvements to the Premises without first obtaining the written
consent of Landlord in each such instance. Prior to commencing any
such work and as a condition to obtaining Landlord's consent, Tenant
must furnish Landlord with plans and specifications reasonably
acceptable to Landlord; names and addresses of contractors
reasonably acceptable to Landlord; copies of contracts; necessary
permits and approvals; evidence of contractor's and subcontractors
insurance in accordance with Article XVI section B. hereof; and
payment bond or other security, all in form and amount satisfactory
to Landlord. All such improvements, alterations or additions shall
be constructed in a good and workmanlike manner using Building
Standard materials or other new materials of equal or greater
quality. Landlord, to the extent reasonably necessary to avoid any
disruption to the tenants and occupants of the Building, shall have
the right to designate the time when any such alterations, additions
and improvements may be performed and to otherwise designate
reasonable rules, regulations and procedures for the performance of
work in the Building. Upon completion, Tenant shall furnish
"as-built" plans, contractor's affidavits and full and final waivers
of lien and receipted bills covering all labor and materials. All
improvements, alterations and additions shall comply with all
insurance requirements, codes, ordinances, laws and regulations,
including without limitation, the Americans with Disabilities Act.
Tenant shall reimburse Landlord upon demand as Additional Base
Rental for all sums, if any, expended by Landlord for third party
examination of the architectural, mechanical, electric and plumbing
plans for any alterations, additions or improvements. In addition,
if Landlord so requests, Landlord shall be entitled to oversee the
construction of any alterations, additions or improvements that may
affect the structure of the Building or any of the mechanical,
electrical, plumbing or life safety systems of the Building. In the
event Landlord elects to oversee such work, Landlord shall be
entitled to receive a fee for such oversight in an amount equal to
fifteen percent (15%) of the cost of such alterations, additions or
improvements. Landlord's approval of Tenant's plans and
specifications for any work performed for or on behalf of Tenant
shall not be deemed to be a representation by Landlord that such
plans and specifications comply with applicable insurance
requirements, building codes, ordinances, laws or regulations or
that the alterations, additions and improvements constructed in
accordance with such plans and specifications will be adequate for
Tenant's use. Tenant shall pay, as an additional charge, the entire
increase in real estate taxes on the Building which shall, at any
time prior to or after the Commencement Date, result from or be
attributable to any alteration, addition or improvement to the
Premises made by or for the account of Tenant in excess of the
Building Standard improvements for the Building.
XI. Use of Electrical Services by Tenant.
F. All electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in Base
Rental and Basic Costs (except as provided in Section XI.B. below
with respect to excess usage); or (2) by a separate charge billed
directly to Tenant by Landlord and payable by Tenant as Additional
Base Rental within ten (10) days after billing; or (3) by a separate
charge or charges billed by the utility company(ies) providing
electrical service and payable by Tenant directly to such utility
company(ies). It is understood that the Premises is presently
directly metered by the utility company providing electrical service
to the Building and that alternative (3) in the preceding sentence
presently applies, although the foregoing shall not limit Landlord's
options under this section at any time hereafter. It is further
understood that electrical service to the Premises may be furnished
by one or more companies providing electrical generation,
transmission and/or distribution services and that the cost of
electricity may be billed as a single charge or divided into and
billed in a variety of categories such as distribution charges,
transmission charges, generation charges, public good charges or
other similar
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categories. Landlord shall have the exclusive right to select the
company(ies) providing electrical service to the Building, Premises
and Property, to aggregate the electrical service for the Building,
Premises and Property with other buildings, to purchase electricity
for the Building, Premises and Property through a broker and/or
buyers group and to change the providers and/or manner of purchasing
electricity from time to time. Landlord shall be entitled to receive
a reasonable fee (if permitted by law) for the services provided by
Landlord in connection with the selection of utility companies and
the negotiation and administration of contracts for the generation
of electricity. In addition, if Landlord bills Tenant directly for
the cost of electricity as Additional Base Rental, the cost of
electricity may include (if permitted by law) an administrative fee
to reimburse Landlord for the cost of reading meters, preparing
invoices and related costs.
G. Tenant's use of electrical service in the Premises shall not exceed,
either in voltage, rated capacity, use beyond Normal Business Hours
or overall load, that which Landlord deems to be standard for the
Building. In the event Tenant shall consume (or request that it be
allowed to consume) electrical service in excess of that deemed by
Landlord to be standard for the Building, Landlord may refuse to
consent to such excess usage or may condition its consent to such
excess usage upon such conditions as Landlord reasonably elects
(including the installation of utility service upgrades, submeters,
air handlers or cooling units), and all such additional usage (to
the extent permitted by law), installation and maintenance thereof
shall be paid for by Tenant as Additional Base Rental. Landlord, at
any time during the Lease Term, shall have the right to separately
meter electrical usage for the Premises or to measure electrical
usage by survey or any other method that Landlord, in its reasonable
judgment, deems to be appropriate.
H. Notwithstanding Section A. above to the contrary, if Landlord
permits Tenant to purchase electrical power for the Premises from a
provider other than Landlord's designated company(ies), such
provider shall be considered to be a contractor of Tenant and Tenant
shall indemnify and hold Landlord harmless from such provider's acts
and omissions while in, or in connection with their services to, the
Building or Premises in accordance with the terms and conditions of
Article XV. In addition, at the request of Landlord, Tenant shall
allow Landlord to purchase electricity from Tenant's provider at
Tenant's rate or at such lower rate as can be negotiated by the
aggregation of Landlord's and Tenant's requirements for electricity
power.
XII. Entry by Landlord.
Landlord and its agents or representatives shall have the right to enter
the Premises to inspect the same, or to show the Premises to prospective
purchasers, mortgagees, tenants (during the last twelve months of the Lease Term
or earlier in connection with a potential relocation) or insurers, or to clean
or make repairs, alterations or additions thereto, including any work that
Landlord deems necessary for the safety, protection or preservation of the
Building or any occupants thereof, or to facilitate repairs, alterations or
additions to the Building or any other tenants' premises. Except for any entry
by Landlord in an emergency situation or to provide normal cleaning and
janitorial service, Landlord shall provide Tenant with reasonable prior notice
of any entry into the Premises, which notice may be given verbally. If
reasonably necessary for the protection and safety of Tenant and its employees,
Landlord shall have the right to temporarily close the Premises to perform
repairs, alterations or additions in the Premises, provided that Landlord shall
use reasonable efforts to perform all such work on weekends and after Normal
Business Hours. Entry by Landlord hereunder shall not constitute a constructive
eviction or entitle Tenant to any abatement or reduction of Rent by reason
thereof.
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XIII. Assignment and Subletting.
A. Tenant shall not assign, sublease, transfer or encumber this Lease
or any interest therein or grant any license, concession or other
right of occupancy of the Premises or any portion thereof or
otherwise permit the use of the Premises or any portion thereof by
any party other than Tenant (any of which events is hereinafter
called a "Transfer) without the prior written consent of Landlord,
which consent shall not be unreasonably withheld with respect to any
proposed assignment or subletting. Landlord's consent shall not be
considered unreasonably withheld if: (1) the proposed transferee's
financial responsibility does not meet the same criteria Landlord
uses to select Building tenants; (2) the proposed transferee's
business is not suitable for the Building considering the business
of the other tenants and the Building's prestige or would result in
a violation of an exclusive right granted to another tenant in the
Building; (3) the proposed use is different than the Permitted Use;
(4) the proposed transferee is a government agency or occupant of
the Building; (5) Tenant is in default; or (6) any portion of the
Building or Premises would become subject to additional or different
governmental laws or regulations as a consequence of the proposed
Transfer and/or the proposed transferee's use and occupancy of the
Premises. Tenant acknowledges that the foregoing is not intended to
be an exclusive list of the reasons for which Landlord may
reasonably withhold its consent to a proposed Transfer. Any
attempted Transfer in violation of the terms of this Article shall,
at Landlord's option, be void. Consent by Landlord to one or more
Transfers shall not operate as a waiver of Landlord's rights as to
any subsequent Transfers. In addition, Tenant shall not, without
Landlord's consent, publicly advertise the proposed rental rate for
any Transfer.
B. If Tenant requests Landlord's consent to a Transfer, Tenant,
together with such request for consent, shall provide Landlord with
the name of the proposed transferee and the nature of the business
of the proposed transferee, the term, use, rental rate and all other
material terms and conditions of the proposed Transfer, including,
without limitation, a copy of the proposed assignment, sublease or
other contractual documents and evidence satisfactory to Landlord
that the proposed transferee is financially responsible.
Notwithstanding Landlord's agreement to act reasonably under Section
XIII.A. above, Landlord may, within forty-five (45) days after its
receipt of all information and documentation required herein,
either, (1) consent to or reasonably refuse to consent to such
Transfer in writing; or (2) negotiate directly with the proposed
transferee and in the event Landlord is able to reach an agreement
with such proposed transferee, terminate this Lease (in part or in
whole, as appropriate) upon thirty (30) days' notice; or (3) cancel
and terminate this Lease, in whole or in part as appropriate, upon
thirty (30) days' notice. In the event Landlord consents to any such
Transfer, the Transfer and consent thereto shall be in a form
approved by Landlord, and Tenant shall bear all costs and expenses
incurred by Landlord in connection with the review and approval of
such documentation, which costs and expenses shall be deemed to be
at least Seven Hundred Fifty Dollars ($750.00).
C. All cash or other proceeds (the "Transfer Consideration") of any
Transfer of Tenant's interest in this Lease and/or the Premises,
whether consented to by Landlord or not, shall be paid to Landlord
and Tenant hereby assigns all rights it might have or ever acquire
in any such proceeds to Landlord. In addition to the Rent hereunder,
Tenant hereby covenants and agrees to pay to Landlord all rent and
other consideration which it receives which is in excess of the Rent
payable hereunder within ten (10) days following receipt thereof by
Tenant. In addition to any other rights Landlord may have, Landlord
shall have the right to contact any transferee and require that all
payments made pursuant to the Transfer shall be made directly to
Landlord.
D. If Tenant is a corporation, limited liability company or similar
entity, and if at any time during the Lease Term the entity or
entities who own the voting shares at the time of the execution of
this Lease cease for any reason (including but not limited to
merger, consolidation or other reorganization involving another
corporation) to own a majority of such shares, or if Tenant is a
partnership and if at any time during the Lease Term the general
partner or partners who own the general partnership interests in the
partnership at the time of the execution of this Lease, cease for
any reason to own a majority of such interests (except as the result
of transfers by gift, bequest or inheritance to or for the benefit
of members of the immediate family of such original shareholder[s]
or partner[s]), such an event shall be deemed to be a
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Transfer. The preceding sentence shall not apply whenever Tenant is
a corporation, the outstanding stock of which is listed on a
recognized security exchange, or if at least eighty percent (80%) of
its voting stock is owned by another corporation, the voting stock
of which is so listed.
E. Any Transfer consented to by Landlord in accordance with this
Article XIII shall be only for the Permitted Use and for no
other purpose. In no event shall any Transfer release or
relieve Tenant or any Guarantors from any obligations under
this Lease.
XIV. Liens.
Tenant will not permit any mechanic's liens or other liens to be placed
upon the Premises or Tenant's leasehold interest therein, the Building, or the
Property. Landlord's title to the Building and Property is and always shall be
paramount to the interest of Tenant, and nothing herein contained shall empower
Tenant to do any act that can, shall or may encumber Landlord's title. In the
event any such lien does attach, Tenant shall, within five (5) days of notice of
the filing of said lien, either discharge or bond over such lien to the
satisfaction of Landlord and Landlord's Mortgagee (as hereinafter defined), and
in such a manner as to remove the lien as an encumbrance against the Building
and Property. If Tenant shall fail to so discharge or bond over such lien, then,
in addition to any other right or remedy of Landlord, Landlord may, but shall
not be obligated to bond over or discharge the same. Any amount paid by Landlord
for any of the aforesaid purposes, including reasonable attorneys' fees (if and
to the extent permitted by law) shall be paid by Tenant to Landlord on demand as
Additional Base Rental. Landlord shall have the right to post and keep posted on
the Premises any notices that may be provided by law or which Landlord may deem
to be proper for the protection of Landlord, the Premises and the Building from
such liens.
XV. Indemnity and Waiver of Claims.
A. Tenant shall indemnify, defend and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors, employees,
Mortgagee(s) and agents, and the respective principals and members
of any such agents (collectively the "Landlord Related Parties")
harmless against and from all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including, without
limitation, reasonable attorneys' fees and other professional fees
(if and to the extent permitted by law), which may be imposed upon,
incurred by, or asserted against Landlord or any of the Landlord
Related Parties and arising, directly or indirectly, out of or in
connection with the use, occupancy or maintenance of the Premises
by, through or under Tenant including, without limitation, any of
the following: (1) any work or thing done in, on or about the
Premises or any part thereof by Tenant or any of its transferees,
agents, servants, contractors, employees, customers, licensees or
invitees; (2) any use, non-use, possession, occupation, condition,
operation or maintenance of the Premises or any part thereof; (3)
any act or omission of Tenant or any of its transferees, agents,
servants, contractors, employees, customers, licensees or invitees,
regardless of whether such act or omission occurred within the
Premises; (4) any injury or damage to any person or property
occurring in, on or about the Premises or any part thereof; or (5)
any failure on the part of Tenant to perform or comply with any of
the covenants, agreements, terms or conditions contained in this
Lease with which Tenant must comply or perform. In case any action
or proceeding is brought against Landlord or any of the Landlord
Related Parties by reason of any of the foregoing, Tenant shall, at
Tenant's sole cost and expense, resist and defend such action or
proceeding with counsel approved by Landlord or, at Landlord's
option, reimburse Landlord for the cost of any counsel retained
directly by Landlord to defend and resist such action or proceeding.
Notwithstanding the foregoing provisions of this Section XV, nothing
contained in this Lease shall be deemed to constitute a release of
Landlord from, or an obligation to indemnify Landlord for, its own
negligence.
B. Landlord and the Landlord Related Parties shall not be liable for,
and Tenant hereby waives, all claims for loss or damage to Tenant's
business or damage to person or property sustained by Tenant or any
person claiming by, through or under Tenant [including Tenant's
principals, agents and employees (collectively, the "Tenant Related
Parties")] resulting from any accident or occurrence in, on or about
the Premises, the Building or the Property, including, without
limitation, claims for loss, theft or damage resulting from: (1) the
Premises, Building, or Property, or any equipment or appurtenances
becoming out of repair; (2) wind or weather; (3) any defect in or
failure to operate, for whatever reason, any sprinkler, heating or
air-
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conditioning equipment, electric wiring, gas, water or steam pipes;
(4) broken glass; (5) the backing up of any sewer pipe or downspout;
(6) the bursting, leaking or running of any tank, water closet,
drain or other pipe; (7) the escape of steam or water; (8) water,
snow or ice being upon or coming through the roof, skylight, stairs,
doorways, windows, walks or any other place upon or near the
Building; (9) the falling of any fixture, plaster, tile or other
material; (10) any act, omission or negligence of other tenants,
licensees or any other persons or occupants of the Building or of
adjoining or contiguous buildings, or owners of adjacent or
contiguous property or the public, or by construction of any
private, public or quasi-public work; or (11) any other cause of any
nature except, as to items 1-9, where such loss or damage is due to
Landlord's willful failure to make repairs required to be made
pursuant to other provisions of this Lease, after the expiration of
a reasonable time after written notice to Landlord of the need for
such repairs. To the maximum extent permitted by law, Tenant agrees
to use and occupy the Premises, and to use such other portions of
the Building as Tenant is herein given the right to use, at Tenant's
own risk.
XVI. Tenant's Insurance.
A. At all times commencing on and after the earlier of the Commencement
Date and the date Tenant or its agents, employees or contractors
enters the Premises for any purpose, Tenant shall carry and
maintain, at its sole cost and expense:
19. Commercial General Liability Insurance applicable to the
Premises and its appurtenances providing, on an occurrence
basis, a minimum combined single limit of Two Million Dollars
($2,000,000.00), with a contractual liability endorsement
covering Tenant's indemnity obligations under this Lease.
20. All Risks of Physical Loss Insurance written at replacement
cost value and with a replacement cost endorsement covering
all of Tenant's Property in the Premises.
21. Workers' Compensation Insurance as required by the state in
which the Premises is located and in amounts as may be
required by applicable statute, and Employers' Liability
Coverage of One Million Dollars ($1,000,000.00) per
occurrence.
22. Whenever good business practice, in Landlord's reasonable
judgment, indicates the need of additional insurance coverage
or different types of insurance in connection with the
Premises or Tenant's use and occupancy thereof Tenant shall,
upon request, obtain such insurance at Tenant's expense and
provide Landlord with evidence thereof.
B. Except for items for which Landlord is responsible under the Work
Letter Agreement, before any repairs, alterations, additions,
improvements, or construction are undertaken by or on behalf of
Tenant, Tenant shall carry and maintain, at its expense, or Tenant
shall require any contractor performing work on the Premises to
carry and maintain, at no expense to Landlord, in addition to
Workers' Compensation Insurance as required by the jurisdiction in
which the Building is located, All Risk Builder's Risk Insurance in
the amount of the replacement cost of any alterations, additions or
improvements (or such other amount reasonably required by Landlord)
and Commercial General Liability Insurance (including, without
limitation, Contractor's Liability coverage, Contractual Liability
coverage and Completed Operations coverage,) written on an
occurrence basis with a minimum combined single limit of Two Million
Dollars ($2,000,000.00) and adding "the named Landlord hereunder (or
any successor thereto), Equity Office Properties Trust, a Maryland
real estate investment trust, EOP Operating Limited Partnership, a
Delaware limited partnership, and their respective members,
principals, beneficiaries, partners, officers, directors, employees,
agents and any Mortgagee(s)", and other designees of Landlord as the
interest of such designees shall appear, as additional insureds
(collectively referred to as the "Additional Insureds").
C. Any company writing any insurance which Tenant is required to
maintain or cause to be maintained pursuant to the terms of this
Lease (all such insurance as well as any other insurance pertaining
to the Premises or the operation of Tenant's business therein being
referred to as "Tenant's Insurance"), as well as the form of such
insurance, shall at all times be subject to Landlord's reasonable
approval, and each
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such insurance company shall have an A.M. Best rating of "A-" or
better and shall be licensed and qualified to do business in the
state in which the Premises is located. All policies evidencing
Tenant's Insurance (except for Workers' Compensation Insurance)
shall specify Tenant as named insured and the Additional Insureds as
additional insureds. Provided that the coverage afforded Landlord
and any designees of Landlord shall not be reduced or otherwise
adversely affected, all of Tenant's Insurance may be carried under a
blanket policy covering the Premises and any other of Tenant's
locations. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) will give to Landlord and its
designees at least thirty (30) days' advance written notice of any
change, cancellation, termination or lapse of said insurance. Tenant
shall be solely responsible for payment of premiums for all of
Tenant's Insurance. Tenant shall deliver to Landlord at least
fifteen (15) days prior to the time Tenant's Insurance is first
required to be carried by Tenant, and upon renewals at least fifteen
(15) days prior to the expiration of any such insurance coverage, a
certificate of insurance of all policies procured by Tenant in
compliance with its obligations under this Lease. The limits of
Tenant's Insurance shall in no event limit Tenant's liability under
this Lease.
D. Tenant shall not do or fail to do anything in, upon or about the
Premises which will: (1) violate the terms of any of Landlord's
insurance policies; (2) prevent Landlord from obtaining policies of
insurance acceptable to Landlord or any Mortgagees; or (3) result in
an increase in the rate of any insurance on the Premises, the
Building, any other property of Landlord or of others within the
Building. In the event of the occurrence of any of the events set
forth in this Section, Tenant shall pay Landlord upon demand, as
Additional Base Rental, the cost of the amount of any increase in
any such insurance premium, provided that the acceptance by Landlord
of such payment shall not be construed to be a waiver of any rights
by Landlord in connection with a default by Tenant under the Lease.
If Tenant fails to obtain the insurance coverage required by this
Lease, Landlord may, at its option, obtain such insurance for
Tenant, and Tenant shall pay, as Additional Base Rental, the cost of
all premiums thereon and all of Landlord's costs associated
therewith.
XVII. Subrogation.
Notwithstanding anything set forth in this Lease to the contrary, Landlord
and Tenant do hereby waive any and all right of recovery, claim, action or cause
of action against the other, their respective principals, beneficiaries,
partners, officers, directors, agents, and employees, and, with respect to
Landlord, its Mortgagee(s), for any loss or damage that may occur to Landlord or
Tenant or any party claiming by, through or under Landlord or Tenant, as the
case may be, with respect to their respective property, the Building, the
Property or the Premises or any addition or improvements thereto, or any
contents therein, by reason of fire, the elements or any other cause, regardless
of cause or origin, including the negligence of Landlord or Tenant, or their
respective principals, beneficiaries, partners, officers, directors, agents and
employees and, with respect to Landlord, its Mortgagee(s), which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance. Since this mutual waiver will preclude the assignment of
any such claim by subrogation (or otherwise) to an insurance company (or any
other person), Landlord and Tenant each agree to give each insurance company
which has issued, or in the future may issue, policies of insurance, with
respect to the items covered by this waiver, written notice of the terms of this
mutual waiver, and to have such insurance policies properly endorsed, if
necessary, to prevent the invalidation of any of the coverage provided by such
insurance policies by reason of such mutual waiver. For the purpose of the
foregoing waiver, the amount of any deductible applicable to any loss or damage
shall be deemed covered by, and recoverable by the insured under the insurance
policy to which such deductible relates. In the event that Tenant is permitted
to and self-insures any risk which would have been covered by the insurance
required to be carried by Tenant pursuant to Article XVI of the Lease, or if
Tenant fails to carry any insurance required to be carried by Tenant pursuant to
Article XVI of this Lease, then all loss or damage to Tenant, its leasehold
interest, its business, its property, the Premises or any additions or
improvements thereto or contents thereof shall be deemed covered by and
recoverable by Tenant under valid and collectible policies of insurance.
XVIII. Landlord's Insurance.
Landlord shall maintain property insurance on the Building in such amounts
as Landlord reasonably elects. The cost of such insurance shall be included as a
part of the Basic Costs, and payments for losses and recoveries thereunder shall
be made solely to Landlord or the Mortgagees of Landlord as their interests
shall appear.
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XIX. Casualty Damage.
If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord. In case
the Building shall be so damaged that in Landlord's reasonable judgment,
substantial alteration or reconstruction of the Building shall be required
(whether or not the Premises has been damaged by such casualty) or in the event
Landlord will not be permitted by applicable law to rebuild the Building in
substantially the same form as existed prior to the fire or casualty or in the
event the Premises has been materially damaged and there is less than two (2)
years of the Lease Term remaining on the date of such casualty or in the event
any Mortgagee should require that the insurance proceeds payable as a result of
a casualty be applied to the payment of the mortgage debt or in the event of any
material uninsured loss to the Building, Landlord may, at its option, terminate
this Lease by notifying Tenant in writing of such termination within ninety (90)
days after the date of such casualty. Such termination shall be effective as of
the date of fire or casualty, with respect to any portion of the Premises that
was rendered untenantable, and the effective date of termination specified in
Landlord's notice, with respect to any portion of the Premises that remained
tenantable. If Landlord does not elect to terminate this Lease, Landlord shall
commence and proceed with reasonable diligence to restore the Building (provided
that Landlord shall not be required to restore any unleased premises in the
Building) and the Leasehold Improvements (but excluding any improvements,
alterations or additions made by Tenant in violation of this Lease) located
within the Premises, if any, which Landlord has insured to substantially the
same condition they were in immediately prior to the happening of the casualty.
Notwithstanding the foregoing, Landlord's obligation to restore the Building,
and the Leasehold Improvements, if any, shall not require Landlord to expend for
such repair and restoration work more than the insurance proceeds actually
received by the Landlord as a result of the casualty. When repairs to the
Premises have been completed by Landlord, Tenant shall complete the restoration
or replacement of all Tenant's Property necessary to permit Tenant's reoccupancy
of the Premises, and Tenant shall present Landlord with evidence satisfactory to
Landlord of Tenant's ability to pay such costs prior to Landlord's commencement
of repair and restoration of the Premises. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or the repair thereof, except that,
subject to the provisions of the next sentence, Landlord shall allow Tenant a
fair diminution of Rent on a per diem basis during the time and to the extent
any damage to the Premises causes the Premises to be rendered untenantable and
not used by Tenant. If the Premises or any other portion of the Building is
damaged by fire or other casualty resulting from the negligence of Tenant or any
Tenant Related Parties, the Rent hereunder shall not be diminished during any
period during which the Premises, or any portion thereof, is untenantable
(except to the extent Landlord is entitled to be reimbursed by the proceeds of
any rental interruption insurance), and Tenant shall be liable to Landlord for
the cost of the repair and restoration of the Building caused thereby to the
extent such cost and expense is not covered by insurance proceeds. Landlord and
Tenant hereby waive the provisions of any law from time to time in effect during
the Lease Term relating to the effect upon leases of partial or total
destruction of leased property. Landlord and Tenant agree that their respective
rights in the event of any damage to or destruction of the Premises shall be
those specifically set forth herein.
XX. Demolition.
Landlord shall have the right to terminate this Lease if Landlord proposes
or is required, for any reason, to remodel, remove, or demolish the Building or
any substantial portion thereof. Such cancellation shall be exercised by
Landlord by the service of not less than ninety (90) days' written notice of
such termination. Such notice shall set forth the date upon which the
termination will be effective. No money or other consideration shall be payable
by Landlord to Tenant for Landlord's exercise of this right, and the right is
hereby reserved to Landlord and all purchasers, successors, assigns,
transferees, and ground tenants of Landlord, as the case may be, and is in
addition to all other rights of Landlord. Tenant has read the foregoing and
understands that Landlord has a right to terminate this Lease as provided above.
XXI. Condemnation.
If (a) the whole or any substantial part of the Premises or (b) any
portion of the Building or Property which would leave the remainder of the
Building unsuitable for use as an office building comparable to its use on the
Commencement Date, shall be taken or condemned for any public or quasi-public
use under governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof then Landlord may, at its option,
terminate this Lease effective as of the date the physical taking of said
Premises or said portion of the Building or Property shall occur. In the event
this Lease is not terminated, the Rentable Area of the Building, the Rentable
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Area of the Premises and Tenant's Pro Rata Share shall be appropriately
adjusted. In addition, Rent for any portion of the Premises so taken or
condemned shall be abated during the unexpired term of this Lease effective when
the physical taking of said portion of the Premises shall occur. All
compensation awarded for any such taking or condemnation, or sale proceeds in
lieu thereof, shall be the property of Landlord, and Tenant shall have no claim
thereto, the same being hereby expressly waived by Tenant, except for any
portions of such award or proceeds which are specifically allocated by the
condemning or purchasing party for the taking of or damage to trade fixtures of
Tenant, which Tenant specifically reserves to itself.
XXII. Events of Default.
The following events shall be deemed to be events of default under this
Lease:
A. Tenant shall fail to pay when due any Base Rental, Additional Base
Rental or other Rent under this Lease and such failure shall
continue for three (3) days after written notice from Landlord
(hereinafter sometimes referred to as a "Monetary Default").
B. Any failure by Tenant (other than a Monetary Default) to comply with
any term, provision or covenant of this Lease, including, without
limitation, the rules and regulations, which failure is not cured
within ten (10) days after delivery to Tenant of notice of the
occurrence of such failure, provided that if any such failure
creates a hazardous condition, such failure must be cured
immediately. Notwithstanding the foregoing, if Tenant fails to
comply with any particular provision or covenant of this Lease,
including, without limitation, Tenant's obligation to pay Rent when
due, on three (3) occasions during any twelve (12) month period, any
subsequent violation of such provision or covenant shall be
considered to be an incurable default by Tenant.
C. Tenant or any Guarantor shall become insolvent, or shall make a
transfer in fraud of creditors, or shall commit an act of bankruptcy
or shall make an assignment for the benefit of creditors, or Tenant
or any Guarantor shall admit in writing its inability to pay its
debts as they become due.
D. Tenant or any Guarantor shall file a petition under any section or
chapter of the United States Bankruptcy Code, as amended, pertaining
to bankruptcy, or under any similar law or statute of the United
States or any State thereof, or Tenant or any Guarantor shall be
adjudged bankrupt or insolvent in proceedings filed against Tenant
or any Guarantor thereunder; or a petition or answer proposing the
adjudication of Tenant or any Guarantor as a debtor or its
reorganization under any present or future federal or state
bankruptcy or similar law shall be filed in any court and such
petition or answer shall not be discharged or denied within sixty
(60) days after the filing thereof.
E. A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any Guarantor or of the Premises or
of any of Tenant's Property located thereon in any proceeding
brought by Tenant or any Guarantor, or any such receiver or trustee
shall be appointed in any proceeding brought against Tenant or any
Guarantor and shall not be discharged within sixty (60) days after
such appointment or Tenant or such Guarantor shall consent to or
acquiesce in such appointment.
F. The leasehold estate hereunder shall be taken on execution or other
process of law or equity in any action against Tenant.
G. Tenant shall abandon or vacate any substantial portion of the
Premises without the prior written permission of Landlord.
H. Tenant shall fail to take possession of and occupy the Premises
within thirty (30) days following the Commencement Date and
thereafter continuously conduct its operations in the Premises for
the Permitted Use.
I. The liquidation, termination, dissolution, forfeiture of right to do
business, or death of Tenant or any Guarantor.
J. Tenant is in default beyond any notice and cure period under any
other lease with Landlord.
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XXIII. Remedies.
A. Upon the occurrence of any event or events of default under this
Lease, Landlord shall have the option to pursue any one or more of
the following remedies without any notice (except as expressly
prescribed in Article XXII above) or demand whatsoever (and without
limiting the generality of the foregoing, Tenant hereby specifically
waives notice and demand for payment of Rent or other obligations
due [except as expressly prescribed in Article XXII above] and
waives any and all other notices or demand requirements imposed by
applicable law):
23. Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to
surrender the Premises upon termination of the Lease
hereunder, Landlord may without prejudice to any other remedy
which it may have, enter upon and take possession of the
Premises and expel or remove Tenant and any other person who
may be occupying said Premises, or any part thereof, and
Tenant hereby agrees to pay to Landlord on demand the amount
of all loss and damage, including consequential damage, which
Landlord may suffer by reason of such termination, whether
through inability to relet the Premises on satisfactory terms
or otherwise, specifically including but not limited to all
Costs of Reletting (hereinafter defined) and any deficiency
that may arise by reason of any reletting or failure to relet.
24. Enter upon and take possession of the Premises and expel or
remove Tenant or any other person who may be occupying said
Premises, or any part thereof, without having any civil or
criminal liability therefor and without terminating this
Lease. Landlord may (but shall be under no obligation to)
relet the Premises or any part thereof for the account of
Tenant, in the name of Tenant or Landlord or otherwise,
without notice to Tenant for such term or terms which may be
greater or less than the period which would otherwise have
constituted the balance of the Lease Term and on such
conditions (which may include concessions, free rent and
alterations of the Premises) and for such uses as Landlord in
its absolute discretion may determine, and Landlord may
collect and receive any rents payable by reason of such
reletting. Tenant agrees to pay Landlord on demand all Costs
of Reletting and any deficiency that may arise by reason of
such reletting or failure to relet. Landlord shall not be
responsible or liable for any failure to relet the Premises or
any part thereof or for any failure to collect any Rent due
upon any such reletting. No such re-entry or taking of
possession of the Premises by Landlord shall be construed as
an election on Landlord's part to terminate this Lease unless
a written notice of such termination is given to Tenant.
25. Enter upon the Premises without having any civil or criminal
liability therefor, and do whatever Tenant is obligated to do
under the terms of this Lease, and Tenant agrees to reimburse
Landlord on demand for any expense which Landlord may incur in
thus affecting compliance with Tenant's obligations under this
Lease together with interest at the lesser of a per annum rate
equal to: (a) the Maximum Rate, or (b) the Prime Rate plus
five percent (5%).
26. In order to regain possession of the Premises and to deny
Tenant access thereto in any instance in which Landlord has
terminated this Lease or Tenant's right to possession, or to
limit access to the Premises in accordance with local law in
the event of a default by Tenant, Landlord or its agent may,
at the expense and liability of the Tenant, alter or change
any or all locks or other security devices controlling access
to the Premises without posting or giving notice of any kind
to Tenant. Landlord shall have no obligation to provide Tenant
a key or grant Tenant access to the Premises so long as Tenant
is in default under this Lease. Tenant shall not be entitled
to recover possession of the Premises, terminate this Lease,
or recover any actual, incidental, consequential, punitive,
statutory or other damages or award of attorneys' fees, by
reason of Landlord's alteration or change of any lock or other
security device. Landlord may, without notice, remove and
either dispose of or store, at Tenant's expense, any property
belonging to Tenant that remains in the Premises after
Landlord has regained possession thereof.
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27. Terminate this Lease, in which event, Tenant shall immediately
surrender the Premises to Landlord and pay to Landlord the sum
of: (a) all Rent accrued hereunder through the date of
termination, and, upon Landlord's determination thereof, (b)
an amount equal to: the total Rent that Tenant would have been
required to pay for the remainder of the Lease Term discounted
to present value at the Prime Rate then in effect, minus the
then present fair rental value of the Premises for the
remainder of the Lease Term, similarly discounted, after
deducting all anticipated Costs of Reletting (as defined
below).
B. For purposes of this Lease, the term "Costs of Reletting" shall mean
all costs and expenses incurred by Landlord in connection with the
reletting of the Premises, including without limitation, the cost of
cleaning, renovation, repairs, decoration and alteration of the
Premises for a new tenant or tenants, advertisement, marketing,
brokerage and legal fees (if and to the extent permitted by law),
the cost of protecting or caring for the Premises while vacant, the
cost of removing and storing any property located on the Premises,
any increase in insurance premiums caused by the vacancy of the
Premises and any other out-of-pocket expenses incurred by Landlord
including tenant incentives, allowances and inducements.
C. Except as otherwise herein provided, no repossession or re-entering
of the Premises or any part thereof pursuant to Article XXIII hereof
or otherwise shall relieve Tenant or any Guarantor of its
liabilities and obligations hereunder, all of which shall survive
such repossession or re-entering. Notwithstanding any such
repossession or re-entering by reason of the occurrence of an event
of default, Tenant will pay to Landlord the Rent required to be paid
by Tenant pursuant to this Lease.
D. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and each and
every right and remedy shall be cumulative and in addition to any
other right or remedy given hereunder or now or hereafter existing
by agreement, applicable law or in equity. In addition to other
remedies provided in this Lease, Landlord shall be entitled, to the
extent permitted by applicable law, to injunctive relief, or to a
decree compelling performance of any of the covenants, agreements,
conditions or provisions of this Lease, or to any other remedy
allowed to Landlord at law or in equity. Forbearance by Landlord to
enforce one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of
such default.
E. This Article XXIII shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
XXIV. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL
BE LIMITED TO THE INTEREST OF LANDLORD IN THE BUILDING, AND TENANT AGREES TO
LOOK SOLELY TO LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY
JUDGMENT OR AWARD AGAINST THE LANDLORD, IT BEING INTENDED THAT NEITHER LANDLORD
NOR ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER, OFFICER, DIRECTOR OR
BENEFICIARY OF LANDLORD SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES
WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS ON THE
PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE TIME TO CURE SUCH ALLEGED
DEFAULT BY LANDLORD. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL LANDLORD
OR ANY MORTGAGEES OR LANDLORD RELATED PARTIES EVER BE LIABLE FOR ANY
CONSEQUENTIAL OR INCIDENTAL DAMAGES OR ANY LOST PROFITS OF TENANT.
XXV. No Waiver.
Failure of Landlord to declare any default immediately upon its
occurrence, or delay in taking any action in connection with an event of default
shall not constitute a waiver of such default, nor
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shall it constitute an estoppel against Landlord, but Landlord shall have the
right to declare the default at any time and take such action as is lawful or
authorized under this Lease. Failure by Landlord to enforce its rights with
respect to any one default shall not constitute a waiver of its rights with
respect to any subsequent default. Receipt by Landlord of Tenant's keys to the
Premises shall not constitute an acceptance or surrender of the Premises.
XXVI. Event of Bankruptcy.
In addition to, and in no way limiting the other remedies set forth
herein, Landlord and Tenant agree that if Tenant ever becomes the subject of a
voluntary or involuntary bankruptcy, reorganization, composition, or other
similar type proceeding under the federal bankruptcy laws, as now enacted or
hereinafter amended, then:
A. "Adequate protection" of Landlord's interest in the Premises
pursuant to the provisions of Section 361 and 363 (or their
successor sections) of the Bankruptcy Code, 11 U.S.C. Section 101 et
seq., (such Bankruptcy Code as amended from time to time being
herein referred to as the "Bankruptcy Code"), prior to assumption
and/or assignment of the Lease by Tenant shall include, but not be
limited to all (or any part) of the following:
28. the continued payment by Tenant of the Base Rental and all
other Rent due and owing hereunder and the performance of all
other covenants and obligations hereunder by Tenant;
29. the furnishing of an additional/new security deposit by Tenant
in the amount of three (3) times the then current monthly Base
Rental.
B. "Adequate assurance of future performance" by Tenant and/or any
assignee of Tenant pursuant to Bankruptcy Code Section 365 will
include (but not be limited to) payment of an additional/new
Security Deposit in the amount of three (3) times the then current
monthly Base Rental payable hereunder.
C. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, shall be deemed without further
act or deed to have assumed all of the obligations of Tenant arising
under this Lease on and after the effective date of such assignment.
Any such assignee shall, upon demand by Landlord, execute and
deliver to Landlord an instrument confirming such assumption of
liability.
D. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of the Landlord under this Lease,
whether or not expressly denominated as "Rent," shall constitute
"rent" for the purposes of Section 502(b) (6) of the Bankruptcy
Code.
E. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise to be delivered to Landlord
(including Base Rentals and other Rent hereunder), shall be and
remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the bankruptcy estate of Tenant. Any and
all monies or other considerations constituting Landlord's property
under the preceding sentence not paid or delivered to Landlord shall
be held in trust by Tenant or Tenant's bankruptcy estate for the
benefit of Landlord and shall be promptly paid to or turned over to
Landlord.
F. If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any person or
entity who shall have made a bona fide offer to accept an assignment
of this Lease on terms acceptable to the Tenant, then notice of such
proposed offer/assignment, setting forth: (1) the name and address
of such person or entity, (2) all of the terms and conditions of
such offer, and (3) the adequate assurance to be provided Landlord
to assure such person's or entity's future performance under the
Lease, shall be given to Landlord by Tenant no later than twenty
(20) days after receipt by Tenant, but in any event no later than
ten (10) days prior to the date that Tenant shall make application
to a court of competent jurisdiction for authority and approval to
enter into such assumption and assignment, and Landlord shall
thereupon have the prior right and option, to be exercised by notice
to Tenant given at any time prior to the effective date of such
proposed assignment, to accept an assignment of this Lease upon the
same terms
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and conditions and for the same consideration, if any, as the bona
fide offer made by such persons or entity, less any brokerage
commission which may be payable out of the consideration to be paid
by such person for the assignment of this Lease.
G. To the extent permitted by law, Landlord and Tenant agree that this
Lease is a contract under which applicable law excuses Landlord from
accepting performance from (or rendering performance to) any person
or entity other than Tenant within the meaning of Sections 365(c)
and 365(e) (2) of the Bankruptcy Code.
XXVII. Waiver of Jury Trial.
Landlord and Tenant hereby waive any right to a trial by jury in any
action or proceeding based upon, or related to, the subject matter of this
Lease. This waiver is knowingly, intentionally, and voluntarily made by Tenant,
and Tenant acknowledges that neither Landlord nor any person acting on behalf of
Landlord has made any representations of fact to induce this waiver of trial by
jury or in any way to modify or nullify its effect. Tenant further acknowledges
that it has been represented (or has had the opportunity to be represented) in
the signing of this Lease and in the making of this waiver by independent legal
counsel, selected of its own free will, and that it has had the opportunity to
discuss this waiver with counsel.
XXVIII. Relocation.
Landlord, at its expense at any time before or during the Lease Term,
shall be entitled to cause Tenant to relocate from the Premises to space
containing approximately the same Rentable Area as the Premises (the "Relocation
Space") within the Building or adjacent buildings within the same project at any
time upon sixty (60) days' prior written notice to Tenant. Such a relocation
shall not affect this Lease except that from and after the date of such
relocation, "Premises" shall refer to the Relocation Space into which Tenant has
been moved, rather than the original Premises as herein defined, and the Base
Rental shall be adjusted so that immediately following such relocation the Base
Rental for the Relocation Space per annum on a per square foot of Rentable Area
basis shall be the same as the Base Rental per annum immediately prior to such
relocation for the original Premises on a per square foot of Rentable Area
basis. Tenant's Pro Rata Share shall also be adjusted in accordance with the
formula set forth in this Lease.
XXIX. Holding Over.
In the event of holding over by Tenant after expiration or other
termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Articles XXII and XXIII hereof, occupancy of the Premises subsequent to such
termination or expiration shall be that of a tenancy at sufferance and in no
event for month-to-month or year-to-year. Tenant shall, throughout the entire
holdover period, be subject to all the terms and provisions of this Lease and
shall pay for its use and occupancy an amount (on a per month basis without
reduction for any partial months during any such holdover) equal to twice the
sum of the Base Rental and Additional Base Rental due for the period immediately
preceding such holding over, provided that in no event shall Base Rental and
Additional Base Rental during the holdover period be less than the fair market
rental for the Premises. No holding over by Tenant or payments of money by
Tenant to Landlord after the expiration of the term of this Lease shall be
construed to extend the Lease Term or prevent Landlord from recovery of
immediate possession of the Premises by summary proceedings or otherwise. In
addition to the obligation to pay the amounts set forth above during any such
holdover period, Tenant also shall be liable to Landlord for all damage,
including any consequential damage, which Landlord may suffer by reason of any
holding over by Tenant, and Tenant shall indemnify Landlord against any and all
claims made by any other tenant or prospective tenant against Landlord for delay
by Landlord in delivering possession of the Premises to such other tenant or
prospective tenant.
XXX. Subordination to Mortgages; Estoppel Certificate.
Tenant accepts this Lease subject and subordinate to any mortgage, deed of
trust, ground lease or other lien presently existing or hereafter arising upon
the Premises, or upon the Building and/or the Property and to any renewals,
modifications, refinancings and extensions thereof (any such mortgage, deed of
trust, lease or other lien being hereinafter referred to as a "Mortgage", and
the person or entity having the benefit of same being referred to hereinafter as
a "Mortgagee"), but Tenant agrees that any such Mortgagee shall have the right
at any time to subordinate such Mortgage to this Lease on such terms and subject
to such conditions as such Mortgagee may deem appropriate in its discretion.
This clause shall be self-operative and no further instrument of subordination
shall be required. However, Landlord is hereby irrevocably vested with full
power and
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authority to subordinate this Lease to any Mortgage, and Tenant agrees upon
demand to execute such further instruments subordinating this Lease,
acknowledging the subordination of this Lease or attorning to the holder of any
such Mortgage as Landlord may request. The terms of this Lease are subject to
approval by the Landlord's existing lender(s) and any lender(s) who, at the time
of the execution of this Lease, have committed or are considering committing to
Landlord to make a loan secured by all or any portion of the Property, and such
approval is a condition precedent to Landlord's obligations hereunder. In the
event that Tenant should fail to execute any subordination or other agreement
required by this Article promptly as requested, Tenant hereby irrevocably
constitutes Landlord as its attorney-in-fact to execute such instrument in
Tenant's name, place and stead, it being agreed that such power is one coupled
with an interest in Landlord and is accordingly irrevocable. If any person shall
succeed to all or part of Landlord's interests in the Premises whether by
purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination
of lease or otherwise, and if and as so requested or required by such
successor-in-interest, Tenant shall, without charge, attorn to such
successor-in-interest. Tenant agrees that it will from time to time upon request
by Landlord and, within five (5) days of the date of such request, execute and
deliver to such persons as Landlord shall request an estoppel certificate or
other similar statement in recordable form certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as so modified), stating the dates to
which Rent and other charges payable under this Lease have been paid, stating
that Landlord is not in default hereunder (or if Tenant alleges a default
stating the nature of such alleged default) and further stating such other
matters as Landlord shall reasonably require.
XXXI. Attorneys' Fees.
In the event that Landlord should retain counsel and/or institute any suit
against Tenant for violation of or to enforce any of the covenants or conditions
of this Lease, or should Tenant institute any suit against Landlord for
violation of any of the covenants or conditions of this Lease, or should either
party intervene in any suit in which the other is a party to enforce or protect
its interest or rights hereunder, the prevailing party in any such suit shall be
entitled to all of its costs, expenses and reasonable fees of its attorney(s)
(if and to the extent permitted by law) in connection therewith.
XXXII. Notice.
Whenever any demand, request, approval, consent or notice ("Notice") shall
or may be given to either of the parties by the other, each such Notice shall be
in writing and shall be sent by registered or certified mail with return receipt
requested, or sent by overnight courier service (such as Federal Express) at the
respective addresses of the parties for notices as set forth in Section I.A.10.
of this Lease, provided that if Tenant has vacated the Premises or is in default
of this Lease Landlord may serve Notice by any manner permitted by law. Any
Notice under this Lease delivered by registered or certified mail shall be
deemed to have been given, delivered, received and effective on the earlier of
(a) the third day following the day on which the same shall have been mailed
with sufficient postage prepaid or (b) the delivery date indicated on the return
receipt. Notice sent by overnight courier service shall be deemed given,
delivered, received and effective upon the day after such notice is delivered to
or picked up by the overnight courier service. Either party may, at any time,
change its Notice Address by giving the other party Notice stating the change
and setting forth the new address.
XXXIII. Landlord's Lien.
In addition to any statutory lien for rent in Landlord's favor, Landlord
(the secured party for purposes hereof) shall have and Tenant (the debtor for
purposes hereof) hereby grants to Landlord, an express contract lien and a
continuing security interest to secure the payment of all Rent due hereunder
from Tenant, upon all goods, wares, equipment, fixtures, furniture, inventory,
accounts, contract rights, chattel paper and other personal property of Tenant
(and any transferees or other occupants of the Premises) presently or hereafter
situated on the Premises and upon all proceeds of any insurance which may accrue
to Tenant by reason of damage or destruction of any such property. In the event
of a default under this Lease, Landlord shall have, in addition to any other
remedies provided herein or by law, all rights and remedies under the Uniform
Commercial Code of the state in which the Premises is located, including without
limitation the right to sell the property described in this paragraph at public
or private sale upon ten (10) days' notice to Tenant, which notice Tenant hereby
agrees is adequate and reasonable. Tenant hereby agrees to execute such other
instruments necessary or desirable in Landlord's discretion to perfect the
security interest hereby created. Any statutory lien for rent is not hereby
waived, the express contractual lien herein granted being in addition and
supplementary thereto. Landlord and Tenant agree that this Lease and the
security interest granted herein serve as a financing statement, and a copy or
photographic or other reproduction of this Paragraph of this Lease may be filed
of record by Landlord and have
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the same force and effect as the original. Tenant warrants and represents that
the collateral subject to the security interest granted herein is not purchased
or used by Tenant for personal, family or household purposes. Tenant further
warrants and represents to Landlord that the lien granted herein constitutes a
first and superior lien and that Tenant will not allow the placing of any other
lien upon any of the property described in this Article without the prior
written consent of Landlord.
XXXIV. Excepted Rights.
This Lease does not grant any rights to light or air over or about the
Building. Landlord specifically excepts and reserves to itself the use of any
roofs, the exterior portions of the Premises, all rights to the land and
improvements below the improved floor level of the Premises, the improvements
and air rights above the Premises and the improvements and air rights located
outside the demising walls of the Premises, and such areas within the Premises
as are required for installation of utility lines and other installations
required to serve any occupants of the Building and the right to maintain and
repair the same, and no rights with respect thereto are conferred upon Tenant
unless otherwise specifically provided herein. Landlord further reserves to
itself the right from time to time: (a) to change the Building's name or street
address; (b) to install, fix and maintain signs on the exterior and interior of
the Building; (c) to designate and approve window coverings; (d) to make any
decorations, alterations, additions, improvements to the Building, or any part
thereof (including the Premises) which Landlord shall desire, or deem necessary
for the safety, protection, preservation or improvement of the Building, or as
Landlord may be required to do by law; (e) to have access to the Premises to
perform its duties and obligations and to exercise its rights under this Lease;
(f) to retain at all times and to use pass-keys to all locks within and into the
Premises; (g) to approve the weight, size, or location of heavy equipment, or
articles in and about the Premises; (h) to close or restrict access to the
Building at all times other than Normal Business Hours subject to Tenant's right
to admittance at all times under such regulations as Landlord may prescribe from
time to time, or to close (temporarily or permanently) any of the entrances to
the Building; (j) to change the arrangement and/or location of entrances of
passageways, doors and doorways, corridors, elevators, stairs, toilets and
public parts of the Building; (i) if Tenant has vacated the Premises during the
last six (6) months of the Lease Term, to perform additions, alterations and
improvements to the Premises in connection with a reletting or anticipated
reletting thereof without being responsible or liable for the value or
preservation of any then existing improvements to the Premises; and (k) to grant
to anyone the exclusive right to conduct any business or undertaking in the
Building. Landlord, in accordance with Article XII hereof, shall have the right
to enter the Premises in connection with the exercise of any of the rights set
forth herein and such entry into the Premises and the performance of any work
therein shall not constitute a constructive eviction or entitle Tenant to any
abatement or reduction of Rent by reason thereof.
XXXV. Surrender of Premises.
At the expiration or earlier termination of this Lease or Tenant's right
of possession hereunder, Tenant shall remove all Tenant's Property from the
Premises, remove all Required Removables designated by Landlord and quit and
surrender the Premises to Landlord, broom clean, and in good order, condition
and repair, ordinary wear and tear excepted. If Tenant fails to remove any of
Tenant's Property within one (1) day after the termination of this Lease or
Tenant's right to possession hereunder, Landlord, at Tenant's sole cost and
expense, shall be entitled to remove and/or store such Tenant's Property and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay Landlord, upon demand, any and all
expenses caused by such removal and all storage charges against such property so
long as the same shall be in the possession of Landlord or under the control of
Landlord. In addition, if Tenant fails to remove any Tenant's Property from the
Premises or storage, as the case may be, within ten (10) days after written
notice from Landlord, Landlord, at its option, may deem all or any part of such
Tenant's Property to have been abandoned by Tenant and title thereof shall
immediately pass to Landlord.
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XXXVI. Miscellaneous.
A. If any term or provision of this Lease, or the application thereof
to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Lease shall be
valid and enforced to the fullest extent permitted by law. This
Lease represents the result of negotiations between Landlord and
Tenant, each of which has been (or has had opportunity to be)
represented by counsel of its own selection, and neither of which
has acted under duress or compulsion, whether legal, economic or
otherwise. Consequently, Landlord and Tenant agree that the language
in all parts of the Lease shall in all cases be construed as a whole
according to its fair meaning and neither strictly for nor against
Landlord or Tenant.
B. Tenant agrees not to record this Lease or any memorandum hereof
without Landlord's prior written consent.
C. This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with the
laws of the state in which the Building is located.
D. Events of "Force Majeure" shall include strikes, riots, acts of God,
shortages of labor or materials, war, governmental law, regulations
or restrictions and any other cause whatsoever that is beyond the
control of Landlord. Whenever a period of time is herein prescribed
for the taking of any action by Landlord, Landlord shall not be
liable or responsible for, and there shall be excluded from the
computation of such period of time, any delays due to events of
Force Majeure.
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations hereunder and in the
Building and Property referred to herein, and in such event and upon
such transfer Landlord shall be released from any further
obligations hereunder, and Tenant agrees to look solely to such
successor in interest of Landlord for the performance of such
obligations.
F. Tenant hereby represents to Landlord that it has dealt directly with
and only with the Broker as a broker in connection with this Lease.
Tenant agrees to indemnify and hold Landlord and the Landlord
Related Parties harmless from all claims of any brokers claiming to
have represented Tenant in connection with this Lease. Landlord
agrees to indemnify and hold Tenant and the Tenant Related Parties
harmless from all claims of any brokers claiming to have represented
Landlord in connection with this Lease.
G. If there is more than one Tenant, or if the Tenant is comprised of
more than one person or entity, the obligations hereunder imposed
upon Tenant shall be joint and several obligations of all such
parties. If Tenant is a partnership, then each present and future
partner shall be personally bound by and upon all of the covenants,
agreements, terms, provisions and conditions set forth in this Lease
on the part of Tenant to be performed. In confirmation of the
foregoing, Landlord may (but without being required to do so)
request (and Tenant shall duly comply) that Tenant, at the time that
Tenant admits any new partner to its partnership, shall require each
such new partner to execute an agreement in form and substance
satisfactory to Landlord whereby such new partner shall agree to be
personally bound by and upon all of the covenants, agreements,
terms, provisions and conditions of this Lease on the part of Tenant
to be performed, without regard to the time when such new partner is
admitted to partnership or when any obligations under any such
covenants, etc., accrue. All notices, payments, and agreements given
or made by, with or to any one of such persons or entities shall be
deemed to have been given or made by, with or to all of them.
H. In the event Tenant is a corporation (including any form of
professional association), partnership (general or limited), or
other form of organization other than an individual (each such
entity is individually referred to herein as an "Organizational
Entity"), then Tenant hereby covenants, warrants and represents: (1)
that such individual is duly authorized to execute or attest and
deliver this Lease on behalf of Tenant in accordance with the
organizational documents of Tenant; (2) that this Lease is
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binding upon Tenant; (3) that Tenant is duly organized and legally
existing in the state of its organization, and is qualified to do
business in the state in which the Premises is located; and (4) that
the execution and delivery of this Lease by Tenant will not result
in any breach of, or constitute a default under any mortgage, deed
of trust, lease, loan, credit agreement, partnership agreement or
other contract or instrument to which Tenant is a party or by which
Tenant may be bound. If Tenant is an Organizational Entity, upon
request, Tenant will, prior to the Commencement Date, deliver to
Landlord true and correct copies of all organizational documents of
Tenant, including, without limitation, copies of an appropriate
resolution or consent of Tenant's board of directors or other
appropriate governing body of Tenant authorizing or ratifying the
execution and delivery of this Lease, which resolution or consent
will be duly certified to Landlord's satisfaction by an appropriate
individual with authority to certify such documents, such as the
secretary or assistant secretary or the managing general partner of
Tenant.
I. Tenant acknowledges that the financial capability of Tenant to
perform its obligations hereunder is material to Landlord and that
Landlord would not enter into this Lease but for its belief, based
on its review of Tenant's financial statements, that Tenant is
capable of performing such financial obligations. Tenant hereby
represents, warrants and certifies to Landlord that its financial
statements for the year ended 12/31/98 as filed with the SEC and
furnished to Landlord were at the time given true and correct in all
material respects and that there have been no material subsequent
changes thereto as of the date of this Lease. At any time during the
Lease Term, Tenant shall provide Landlord, upon thirty (30) days'
prior written notice from Landlord, with the most current financial
statement that has been filed with the SEC or otherwise been
published in the public domain and financial statements of the two
(2) years prior to the current financial statement year and such
other information as Landlord or its Mortgagee may reasonably
request in order to create a "business profile" of Tenant and
determine Tenant's ability to fulfill its obligations under this
Lease. The annual financial statement shall be prepared in
accordance with generally accepted accounting principles and, if
such is the normal practice of Tenant, shall be audited by an
independent certified public accountant. Notwithstanding the
foregoing, Landlord shall not request financial statements more than
once in each consecutive two (2) year period during the Lease Term
unless Tenant is in default or Landlord reasonably believes that
there has been an adverse change in Tenant's financial position
since the last financial statement provided to Landlord.
J. Except as expressly otherwise herein provided, with respect to all
required acts of Tenant, time is of the essence of this Lease. This
Lease shall create the relationship of Landlord and Tenant between
the parties hereto.
K. This Lease and the covenants and conditions herein contained shall
inure to the benefit of and be binding upon Landlord and Tenant and
their respective permitted successors and assigns.
L. Notwithstanding anything to the contrary contained in this Lease,
the expiration of the Lease Term, whether by lapse of time or
otherwise, shall not relieve Tenant from Tenant's obligations
accruing prior to the expiration of the Lease Term, and such
obligations shall survive any such expiration or other termination
of the Lease Term.
M. The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no affect upon the construction or
interpretation of any part hereof.
N. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery hereof does not constitute an offer to
Tenant or option. This Lease shall not be effective until an
original of this Lease executed by both Landlord and Tenant and an
original Guaranty, if any, executed by each Guarantor is delivered
to and accepted by Landlord, and this Lease has been approved by
Landlord's Mortgagees, if required.
O. Quiet Enjoyment. Tenant shall, and may peacefully have, hold, and
enjoy the Premises, subject to the other terms of this Lease
(including, without limitation, Article XXX hereof), provided that
Tenant pays the Rent herein recited to be paid by Tenant and
performs all of Tenant's covenants and agreements herein contained.
This covenant and any and all other covenants of Landlord shall be
binding upon Landlord and its successors only during its or their
respective periods of ownership of the Landlord's interest
hereunder.
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XXXVII.Entire Agreement.
This Lease Agreement, including the following Exhibits:
Exhibit A - Outline and Location of Premises
Exhibit B - Rules and Regulations
Exhibit C - Commencement Letter
Exhibit D - Work Letter Agreement
constitutes the entire agreement between the parties hereto with respect
to the subject matter of this Lease and supersedes all prior agreements
and understandings between the parties related to the Premises, including
all lease proposals, letters of intent and similar documents. TENANT
EXPRESSLY ACKNOWLEDGES AND AGREES THAT LANDLORD HAS NOT MADE AND IS NOT
MAKING, AND TENANT, IN EXECUTING AND DELIVERING THIS LEASE, IS NOT RELYING
UPON, ANY WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS, EXCEPT TO
THE EXTENT THAT THE SAME ARE EXPRESSLY SET FORTH IN THIS LEASE. ALL
UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE BETWEEN THE PARTIES ARE
MERGED IN THIS LEASE WHICH ALONE FULLY AND COMPLETELY EXPRESSES THE
AGREEMENT OF THE PARTIES, NEITHER PARTY RELYING UPON ANY STATEMENT OR
REPRESENTATION NOT EMBODIED IN THIS LEASE. THIS LEASE MAY BE MODIFIED ONLY
BY A WRITTEN AGREEMENT SIGNED BY LANDLORD AND TENANT. LANDLORD AND TENANT
EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF
MERCHANTABILITY, HABITABILITY, SUITABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, ALL OF WHICH ARE
HEREBY WAIVED BY TENANT, AND THAT THERE ARE NO WARRANTIES WHICH EXTEND
BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
WITNESS/ATTEST: LANDLORD: EOP OPERATING LIMITED
PARTNERSHIP, a Delaware
limited partnership
Name (print): /s/ ▇▇▇▇▇▇ [ILLEGIBLE] By: Equity Office Properties
------------------------ Trust, a Maryland real
estate investment trust, its
managing general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Name (print): Name: ▇▇▇▇▇▇ ▇▇▇▇
------------------------ -----------------------
Title: Vice President Leasing
-----------------------
WITNESS/ATTEST: TENANT: ADVANCED HEALTH CORPORATION,
a Delaware corporation
Name (print): /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------- -----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Chief Financial Officer
-----------------------------
Name (print): ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
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EXHIBIT A
PREMISES
This Exhibit is attached to and made a part of the Lease dated April
16, 1999, by and between EOP OPERATING LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord") and ADVANCED HEALTH CORPORATION, a Delaware corporation
("Tenant") for space in the Building located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
[Description of premises]
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EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage associated therewith (if any), the
Property and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material of any nature shall be placed, emptied, or thrown in
those areas. At no time shall Tenant permit Tenant's employees to loiter
in common areas or elsewhere in or about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not in any case
be responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or to
any windows, doors or other parts of the Building, except those of such
color, size, style and in such places as shall be first approved in
writing by Landlord. No nails, hooks or screws shall be driven or inserted
into any part of the Premises or Building except by the Building
maintenance personnel, nor shall any part of the Building be defaced by
Tenant.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board listing all Tenants, and no other
directory shall be permitted unless previously consented to by Landlord in
writing.
5. Tenant shall not place any additional lock or locks on any door in the
Premises or Building without Landlord's prior written consent. A
reasonable number of keys to the locks on the doors in the Premises shall
be furnished by Landlord to Tenant at the cost of Tenant, and Tenant shall
not have any duplicate keys made. All keys shall be returned to Landlord
at the expiration or earlier termination of this Lease.
6. All contractors, contractor's representatives, and installation
technicians performing work in the Building shall be subject to Landlord's
prior approval and shall be required to comply with Landlord's standard
rules, regulations, policies and procedures, as the same may be revised
from time to time. Tenant shall be solely responsible for complying with
all applicable laws, codes and ordinances pursuant to which said work
shall be performed. Notwithstanding anything to the contrary herein or in
the Lease contained, Landlord has no obligation to allow any particular
telecommunication service provider to have access to the Building or to
Tenant's premises. If Landlord permits such access, Landlord may condition
such access upon the payment to Landlord by the service provider of fees
assessed by Landlord in its sole discretion.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which
require the use of elevators, stairways, lobby areas, or loading dock
areas, shall be restricted to hours designated by Landlord. Tenant must
seek Landlord's prior approval by providing in writing a detailed listing
of any such activity. If approved by Landlord, such activity shall be
under the supervision of Landlord and performed in the manner stated by
Landlord. Landlord may prohibit any article, equipment or any other item
from being brought into the Building. Tenant is to assume all risk for
damage to articles moved and injury to any persons resulting from such
activity. If any equipment, property, and/or personnel of Landlord or of
any other tenant is damaged or injured as a result of or in connection
with such activity, Tenant shall be solely liable for any and all damage
or loss resulting therefrom.
8. Landlord shall have the power to prescribe the weight and position of
safes and other heavy equipment or items, which in all cases shall not in
the opinion of Landlord exceed acceptable floor loading and weight
distribution requirements. All damage done to the Building by the
installation, maintenance, operation, existence or removal of any property
of Tenant shall be repaired at the expense of Tenant.
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9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute, or cause to be distributed, in any portion of the
Building any handbills, promotional materials or other advertising; or (3)
conduct or permit any other activities in the Building that might
constitute a nuisance.
11. No animals, except seeing eye dogs, shall be brought into or kept in, on
or about the Premises.
12. No inflammable, explosive or dangerous fluid or substance shall be used or
kept by Tenant in the Premises or Building. Tenant shall not, without
Landlord's prior written consent, use, store, install, spill, remove,
release or dispose of within or about the Premises or any other portion of
the Property, any asbestos-containing materials or any solid, liquid or
gaseous material now or hereafter considered toxic or hazardous under the
provisions of 42 U.S.C. Section 9601 et seq. or any other applicable
environmental law which may now or hereafter be in effect. If Landlord
does give written consent to Tenant pursuant to the foregoing sentence,
Tenant shall comply with all applicable laws, rules and regulations
pertaining to and governing such use by Tenant, and shall remain liable
for all costs of cleanup or removal in connection therewith.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or future
value of the Premises or the Building; without limiting the foregoing,
Tenant shall not use or permit the Premises or any portion thereof to be
used for lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts affecting the Building or which would cause any work stoppage,
picketing, labor disruption or dispute, or any interference with the
business of Landlord or any other tenant or occupant of the Building or
with the rights and privileges of any person lawfully in the Building.
Tenant shall take any actions necessary to resolve any such work stoppage,
picketing, labor disruption, dispute or interference and shall have
pickets removed and, at the request of Landlord, immediately terminate at
any time any construction work being performed in the Premises giving rise
to such labor problems, until such time as Landlord shall have given its
written consent for such work to resume. Tenant shall have no claim for
damages of any nature against Landlord or any of the Landlord Related
Parties in connection therewith, nor shall the date of the commencement of
the Term be extended as a result thereof.
15. Tenant shall utilize the termite and pest extermination service designated
by Landlord to control termites and pests in the Premises. Except as
included in Basic Costs, Tenant shall bear the cost and expense of such
extermination services.
16. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, any electrical equipment which does not bear
the U/L (Underwriters Laboratories) seal of approval, or which would
overload the electrical system or any part thereof beyond its capacity for
proper, efficient and safe operation as determined by Landlord, taking
into consideration the overall electrical system and the present and
future requirements therefor in the Building. Tenant shall not furnish any
cooling or heating to the Premises, including, without limitation, the use
of any electronic or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines available to service the Building.
17. Tenant shall not operate or permit to be operated on the Premises any coin
or token operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes or other goods),
except for those vending machines or similar devices which are for the
sole and exclusive use of Tenant's employees, and then only if such
operation does not violate the lease of any other tenant of the Building.
18. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
19. Landlord may from time to time adopt appropriate systems and procedures
for the security or safety of the Building, its occupants, entry and use,
or its contents. Tenant, Tenant's
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33
agents, employees, contractors, guests and invitees shall comply with
Landlord's reasonable requirements relative thereto.
20. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion may
tend to impair the reputation of the Building or its desirability for
Landlord or other tenants. Upon written notice from Landlord, Tenant will
refrain from and/or discontinue such publicity immediately.
21. Tenant shall carry out Tenant's permitted repair, maintenance,
alterations, and improvements in the Premises only during times agreed to
in advance by Landlord and in a manner which will not interfere with the
rights of other tenants in the Building.
22. Canvassing, soliciting, and peddling in or about the Building is
prohibited. Tenant shall cooperate and use its best efforts to prevent the
same.
23. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, guests, or invitees smoke in any common area of the Building,
unless such common area has been declared a designated smoking area by
Landlord, or to allow any smoke from the Premises to emanate into the
common areas or any other tenant's premises. Landlord shall have the right
at any time to designate the Building as a non-smoking building.
24. Tenant shall observe Landlord's rules with respect to maintaining standard
window coverings at all windows in the Premises so that the Building
presents a uniform exterior appearance. Tenant shall ensure that to the
extent reasonably practicable, window coverings are closed on all windows
in the Premises while they are exposed to the direct rays of the sun.
25. All deliveries to or from the Premises shall be made only at such times,
in the areas and through the entrances and exits designated for such
purposes by Landlord. Tenant shall not permit the process of receiving
deliveries to or from the Premises outside of said areas or in a manner
which may interfere with the use by any other tenant of its premises or of
any common areas, any pedestrian use of such area, or any use which is
inconsistent with good business practice.
26. The work of cleaning personnel shall not be hindered by Tenant after 5:30
P.M., and such cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles necessary to prevent
unreasonable hardship to Landlord regarding cleaning service.
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EXHIBIT C
COMMENCEMENT LETTER
Date ____________________________
Advanced Health Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Commencement Letter with respect to that certain Lease dated March ____,
1999 by and between EOP OPERATING LIMITED PARTNERSHIP, a Delaware limited
partnership, as Landlord and ADVANCED HEALTH CORPORATION, a Delaware
corporation, as Tenant, for 4,184 square feet of Rentable Area on the 17th
floor of the Building located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Dear __________________:
In accordance with the terms and conditions of the above referenced Lease,
Tenant hereby accepts possession of the Premises and agrees as follows:
1. The Commencement Date of the Lease is May 1,1999;
2. The Termination Date of the Lease is April 30, 2002.
Please acknowledge your acceptance of possession and agreement to the
terms set forth above by signing all three (3) copies of this Commencement
Letter in the space provided and returning two (2) fully executed copies of the
same to my attention.
Sincerely,
Property Manager
Agreed and Accepted:
Tenant: _____________________________
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________
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35
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated April 16,
1999, by and between EOP OPERATING LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord") and ADVANCED HEALTH CORPORATION, a Delaware corporation
("Tenant") for space in the Building located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Premises for Tenant's occupancy.
All improvements described in this Work Letter to be constructed in and
upon the Premises by Landlord are hereinafter referred to as the "Landlord
Work." Landlord shall cause the Landlord Work to be constructed
substantially in accordance with the plans identified as Attachment A
hereto (the "Plans") prepared on behalf of Tenant and approved by
Landlord. Tenant shall be responsible for all elements of the design of
the Plans (including, without limitation, compliance with law,
functionality of design, the structural integrity of the design, the
configuration of the premises and the placement of Tenant's furniture,
appliances and equipment), and Landlord's approval of the Plans shall in
no event relieve Tenant of the responsibility for such design. It is
agreed that construction of the Landlord Work is intended to be "turn-key"
and will be completed at Landlord's sole cost and expense, using Building
Standard methods, materials, and finishes. Landlord shall enter into a
direct contract for the Landlord Work with a general contractor selected
by Landlord. In addition, Landlord shall have the right to select and/or
approve of any subcontractors used in connection with the Landlord Work.
2. If Tenant shall request any change, addition or alteration in any of the
Plans after approval by Landlord, Landlord shall have such revisions to
the drawings prepared, and Tenant shall reimburse Landlord for the cost
thereof, plus any applicable state sales or use tax thereon, upon demand.
Promptly upon completion of the revisions, Landlord shall notify Tenant in
writing of the cost, if any, which will be chargeable to Tenant by reason
of such change, addition or deletion. Tenant, within one (1) Business Day,
shall notify Landlord in writing whether it desires to proceed with such
change, addition or deletion. In the absence of such written
authorization, Landlord shall have the option to continue work on the
Premises disregarding the requested change, addition or alteration, or
Landlord may elect to discontinue work on the Premises until it receives
notice of Tenant's decision, in which event Tenant shall be responsible
for any Delay in completion of the Premises resulting therefrom. Tenant
shall pay all costs and expenses of any such change, plus any applicable
state sales or use tax thereon, upon demand.
3. This Exhibit D shall not be deemed applicable to any additional space
added to the original Premises at any time or from time to time, whether
by any options under the Lease or otherwise, or to any portion of the
original Premises or any additions to the Premises in the event of a
renewal or extension of the original Term of this Lease, whether by any
options under the Lease or otherwise, unless expressly so provided in the
Lease or any amendment or supplement to the Lease.
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇▇ A TO WORKLETTER
FINAL PLANS
[Description of picture]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of
the day and year first above written.
WITNESS/ATTEST: LANDLORD: EOP OPERATING LIMITED
PARTNERSHIP, a Delaware
limited partnership
Name (print): /s/ ▇▇▇▇▇▇ [ILLEGIBLE] By: Equity Office Properties
------------------------ Trust, a Maryland real
estate investment trust, its
managing general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Name (print): Name: ▇▇▇▇▇▇ ▇▇▇▇
------------------------ -----------------------
Title: Vice President Leasing
-----------------------
WITNESS/ATTEST: TENANT: ADVANCED HEALTH CORPORATION,
a Delaware corporation
Name (print): /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------- -----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Chief Financial Officer
-----------------------------
Name (print): ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
D-3
