Exhibit 10.27
LEASE AGREEMENT
▇▇▇▇▇▇ HILLS IV PARTNERS
AND
IPAYMENT, INC.
- Table of Contents -
ARTICLE 1 - LEASE OF PREMISES ............................................... 1
ARTICLE 2 - TERM AND POSSESSION ............................................. 3
ARTICLE 3 - RENT ............................................................ 4
ARTICLE 4 - SECURITY DEPOSIT ................................................ 6
ARTICLE 5 - OCCUPANCY AND USE ............................................... 7
ARTICLE 6 - UTILITIES AND OTHER BUILDING SERVICES ........................... 8
ARTICLE 7 - REPAIRS, MAINTENANCE, ALTERATIONS, and IMPROVEMENTS AND
FIXTURES ........................................................ 10
ARTICLE 8 - FIRE OR OTHER CASUALTY; CASUALTY INSURANCE ...................... 11
ARTICLE 9 - GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND INSURANCE ......... 12
ARTICLE 10 - EMINENT DOMAIN ................................................. 13
ARTICLE 11 - LIENS .......................................................... 13
ARTICLE 12 - RENTAL, PERSONAL PROPERTY AND OTHER TAXES ...................... 13
ARTICLE 13 - ASSIGNMENT AND SUBLETTING ...................................... 14
ARTICLE 14 - TRANSFERS BY LANDLORD .......................................... 14
ARTICLE 15 - DEFAULTS AND REMEDIES .......................................... 15
ARTICLE 16 - LANDLORD'S RIGHT TO RELOCATE TENANT ............................ 17
ARTICLE 17 - NOTICE AND PLACE OF PAYMENT .................................... 17
ARTICLE 18 - ENVIRONMENTAL REPRESENTATIONS, COVENANTS AND INDEMNITIES ....... 17
ARTICLE 19 - MISCELLANEOUS GENERAL PROVISIONS ............................... 18
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SCHEDULE OF EXHIBITS................................. 22
EXHIBIT A-1 DESCRIPTION OF LAND...................... 23
EXHIBIT A-2 DESCRIPTION OF LEASED PREMISES........... 24
EXHIBIT B LEASEHOLD IMPROVEMENTS RE LEASED PREMISES.. 25
EXHIBIT C RULES AND REGULATIONS...................... 26
EXHIBIT D ESTOPPEL CERTIFICATE....................... 29
EXHIBIT E COMMENCEMENT DATE AGREEMENT................ 30
EXHIBIT F WORK LETTER AGREEMENT...................... 31
EXHIBIT G SPECIAL STIPULATIONS....................... 36
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LEASE AGREEMENT
▇▇▇▇▇▇ HILLS IV
AND
IPAYMENT, INC.
THIS LEASE ("Lease"), made this 3 day of October, 2002 by and between
▇▇▇▇▇▇ HILLS IV PARTNERS, a Tennessee General Partnership ("Landlord") and
Ipayment, Inc., a Delaware corporation ("Tenant"),
W I T N E S S E T H:
ARTICLE 1 -- LEASE OF PREMISES
Section 1.01. Lease of Premises. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord, subject to all of the terms and conditions
hereinafter set forth, office space in the office building described below that
is commonly known as ▇▇▇▇▇▇ Hills IV, Nashville, Davidson County, Tennessee
(the "Building"), and which is or shall be situated on the tract of land
described in Exhibit A-1 attached hereto (the "Land"), for the term hereinafter
specified. The space in the Building hereby leased to Tenant is set forth in
Item B of the Basic Lease Provisions and is outlined on Exhibit A-2 attached
hereto (the "Leased Premies"). Tenant also shall have the non-exclusive right
in common with the other tenants of the Building to use the Common Areas (as
defined in Section 19.03 hereof) subject to the terms and conditions
hereinafter set forth.
Section 1.02. Base Lease Provisions.
A. Building Name: ▇▇▇▇▇▇ Hills IV
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
B. Rentable Area of Leased Premises: Approximately 4,755 rentable square feet
on the 4th floor of the Building (the exact rentable area to be based on
the approved Floor Plan to be submitted by Tenant and determined by the
BOMA measurement);
C. Building Expense Percentage: Approximately 3.52% (4,755/135,254 rentable
square feet, actual percentage subject to verification of rentable area
within the Leased Premises and the Building following completion of
construction);
D. Minimum Annual Rent:
Year 1: $24.00/RSF
Year 2: $24.60/RSF
Year 3: $25.22/RSF
Year 4: $25.85/RSF
Year 5: $26.49/RSF
Year 6: $27.15/RSF
Year 7: $27.83/RSF
E. Monthly Rental Installments:
Year 1: $ 9,510.00/month
Year 2: $ 9,747.75/month
Year 3: $ 9,993.43/month
Year 4: $10,243.06/month
Year 5: $10,496.66/month
Year 6: $10,758.19/month
Year 7: $11,027.64/month
F. Term: Seven (7) years (plus the number of days in the month during which
the Commencement Date occurs if less than a full calendar month);
G. Target Commencement Date: January 1, 2003;
H. Security Deposit: The Security Deposit shall be $11,027.64, being an amount
equal to the last month's rent due under this Lease, and shall be subject
to the provisions of Article 4 hereof. In addition, Tenant shall prepay
$9,510.00 of rent (the "Prepaid Rent"), being an amount equal to the
initial stated Monthly Rental Installment due under this Lease, said amount
to be applied to rent first becoming due under this Lease. Both of the
foregoing amounts (totaling $20,537.64) shall be due and payable upon
execution of this Lease. Only in the event of the occurrence of a default
under this Lease by Tenant shall Prepaid Rent be deemed to be a part of the
Security Deposit and subject to the provisions of Article 4 hereof.
I. Brokers: ▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company, as Landlord's Broker, and ▇▇▇▇▇ &
▇▇▇▇▇, as Tenant's Broker;
J. Permitted Use: General office purposes;
K. Space Plan Approval Date: October 11, 2002 (See Exhibit B);
L. Options: Two (2) Five-Year Extension Options (See Section 2.07);
M. Expiration Date: The last day of the month that is eighty-four (84) months
after the month in which the Commencement Date occurs (plus number of days,
if any, in a partial calendar month), or such earlier date of any
termination of this Lease;
N. Address for payments and notices:
Landlord: ▇▇▇▇▇▇ Hills IV Partners
▇/▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant*: Ipayment, Inc.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Hills IV Office Building
40 ▇▇▇▇▇▇ Hills Blvd.
Suite ___
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
* Prior to the Lease Commencement Date, all notices to the Tenant shall be
sent to the following address:
Ipayment, Inc.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
O. Delinquency Interest Rate: An annual percentage rate of interest equal to
three percentage points (3%) in excess of the "Prime Rate" from time to
time published in the Money Rates section of The Wall Street Journal, which
rate as published on the last publication day in any month shall be deemed
to be the appropriate reference rate for the entire next succeeding
calendar month; provided, however, that in no event shall the Delinquency
Interest Rate exceed the maximum contract rate of interest from time to
time allowed to be charged under applicable law. Should The Wall Street
Journal cease the publication of its Prime Rate, the Lessor shall have the
right to designate a comparable reference rate.
P. Lease Month: The calendar month or partial calendar month in which the
Commencement Date occurs, and each subsequent calendar month during the
Term.
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Q. Lease Year: The period ending on the last day of the twelfth (12th) month
after the month in which the Commencement Date occurs, and the successive
annual period(s), if any, ending on each subsequent anniversary of said
date.
ARTICLE 2 - TERM AND POSSESSION
Section 2.01. Term. The term of this Lease shall be the period specified in Item
F of the Basic Lease Provisions and shall commence on: (i) the Target
Commencement Date as provided in Item G of the Basic Lease Provisions (and as
further described in Exhibit B); or (ii) such earlier date as Tenant takes
possession or commences use of the Leased Premises. The date of commencement as
defined above, hereinafter called the "Commencement Date," and the "Expiration
Date" shall be confirmed by Tenant as provided in Section 2.03.
Section 2.02. Construction of Tenant Finish Improvements and Possession.
Landlord agrees to perform and complete the work on the tenant finish
improvements in the Leased Premises as provided in Exhibit B, subject to events
and delays due to causes beyond its reasonable control, and shall give written
notice of the day on which its work shall be completed. From and after receipt
of said notice or earlier with the consent of Landlord, Tenant shall have the
right and privilege of going onto the Leased Premises to complete interior
decoration work and to prepare the Leased Premises for its occupancy; provided,
however, that its schedule in so doing shall be communicated to Landlord and the
approval of Landlord secured so as not to interfere with other work of Landlord
being carried on at the time; and provided further that Landlord shall have no
responsibility or liability whatsoever for any loss or damage to any of Tenant's
leasehold improvements, fixtures, equipment or any other materials installed or
left in the Leased Premises prior to the Commencement Date.
Section 2.03. Tenant's Acceptance of the Leased Premises. Within thirty (30)
days following delivery of possession of the Leased Premises to Tenant as herein
provided, Tenant shall execute a Commencement Date Agreement in the form
attached hereto as Exhibit E acknowledging (i) the Commencement Date and the
Expiration Date of this Lease, and (ii) that Tenant has accepted the Leased
Premises for occupancy and that the condition of the Leased Premises, including
the tenant finish improvements constructed thereon by Landlord and the Building,
was at the time satisfactory and in conformity with the provisions of this Lease
in all respects, except for any defects as to which Tenant shall give written
notice to Landlord within thirty (30) days after such delivery. Landlord shall
promptly thereafter correct all such defects. Such Commencement Date Agreement
shall become a part of this Lease. If Tenant takes possession of and occupies
the Leased Premises, Tenant shall be deemed to have accepted the Leased Premises
in the manner described in this Section 2.03, even though the Commencement Date
Agreement provided for herein may not have been executed by Tenant.
Section 2.04. Surrender of the Premises. Upon the expiration or earlier
termination of this Lease, or upon the exercise by Landlord of its right to
re-enter the Leased Premises without terminating this Lease, Tenant shall
promptly surrender the Leased Premises to Landlord, together with all
alterations, improvements and other property as provided elsewhere herein, in
good order, condition and repair, ordinary wear and tear excepted, failing which
Landlord may restore the Leased Premises to such condition at Tenant's expense.
Upon such expiration or termination, Tenant shall have the right to remove its
personal property (as described in Article 7). Tenant shall promptly repair any
damage caused by any such removal, and shall restore the Leased Premises to the
condition existing prior to the installation of the items so removed, ordinary
wear and tear excepted. This provision shall survive the expiration or earlier
termination of this Lease.
Section 2.05. Holding Over. If Tenant holds over after the expiration or earlier
termination of this Lease with the consent of Landlord, Tenant shall become a
tenant from month to month at one hundred fifty percent (150%) of Tenant's then
current rental rate including any additional rent for the Leased Premises in
effect upon the date of such expiration or earlier termination (subject to
adjustment as provided in Article 3 hereof and prorated on a daily basis), and
otherwise upon the terms, covenants and conditions herein specified, so far as
applicable. Acceptance by Landlord of rent after such expiration or earlier
termination shall not constitute consent to a holdover hereunder or result in a
renewal. Notwithstanding the foregoing provision, no holding over by Tenant
shall operate to extend this Lease, and Tenant shall vacate and
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surrender the Leased Premises to Landlord upon Tenant's being given thirty (30)
days prior written notice from Landlord to vacate. The foregoing provisions of
this Section 2.05 are in addition to and do not affect the Landlord's right of
re-entry or any other rights of Landlord hereunder or as otherwise provided by
law.
Section 2.06. Quiet Enjoyment. So long as Tenant is not in default hereunder,
Landlord covenants and agrees that Tenant may peaceably hold and quietly enjoy
the Leased Premises subject to and upon the terms and conditions of this Lease.
Section 2.07. Extension Option. Tenant shall have two (2) options to extend the
Term of the Lease for a period of sixty (60) months each; provided Tenant is not
in default hereunder at the time of the exercise of such option. Notice of the
exercise of Tenant's option to extend shall be given to Landlord not less than
nine (9) months prior to the expiration of the then effective Term hereof.
Unless otherwise negotiated between Tenant and Landlord, Minimum Annual Rent and
Monthly Rental Installments during any extension of the Term will be at the
prevailing market rate for first-class office space in the Green Hills/▇▇▇▇▇▇
Hills submarket at the time of the exercise of the extension option, taking into
Account Market conditions, T-I allowances, free rent, adjustments to base year
for Expense Stop and other concessions generally available to new tenants in the
Green Hills/▇▇▇▇▇▇ Hills Market. Adjustments outlined in Sections 3.02 and 3.03
of this Lease, and all other terms, conditions and provisions of this Lease
shall continue in full force and effect and be applicable during any extension.
ARTICLE 3 - RENT
Section 3.01. Base Rent. Tenant shall pay to Landlord as Minimum Annual Rent
for the Leased Premises at the rates specified in Item D of the Basic Lease
Provisions, payable in equal consecutive Monthly Rental Installments as
specified in Item E of the Basic Lease Provisions, in advance, without notice,
and without deduction or offset except as expressly provided for herein, on or
before the first day of each and every calendar month during the term of this
Lease; provided, however, that if the Commencement Date shall be a day other
than the first day of a calendar month or the Expiration Date shall be a day
other than the last day of a calendar month, the Monthly Rental Installment for
such first or last fractional month shall be prorated.
Section 3.02. Annual Rental Adjustment.
A. Definitions. For purpose of this Section 3.02, the following definitions
shall apply:
1. "Annual Rental Adjustment" -- shall mean the amount of Tenant's
Proportionate Share of Operating Expenses for a particular calendar
year.
2. "Operating Expenses" -- shall mean the amount of all of Landlord's
direct costs and expenses paid or incurred in operating and
maintaining the Building (including the Common Areas (as defined in
Section 19.03 hereof) and the land described in Exhibit A-1) for a
particular calendar year as determined by Landlord in accordance with
generally accepted accounting principles, consistently applied,
including all additional direct costs and expenses of operation and
maintenance of the Building that Landlord reasonably determines that
it would have paid or incurred during such year if the Building had
been fully occupied, including by way of illustration and not
limitation: all general real estate taxes and all special assessments
levied against the Building (hereinafter called "real estate taxes"),
other than penalties for late payment; costs and expenses of
contesting the validity or amount of real estate taxes; insurance
premiums, water, sewer, electrical, and other utility charges other
than any separately billed electrical and other charges paid by Tenant
as provided in this Lease; service and other charges incurred in the
operation and maintenance of the elevators and the heating,
ventilation and air-conditioning system; cleaning and other janitorial
services; rubbish removal; snow removal; tools and supplies; repair
costs; landscape maintenance costs; security services; license, permit
and inspection fees; management fees (not exceeding 4% of annual gross
rental income for the Building); wages and related employee benefits
payable for the maintenance and operation of the Building;
amortization of capital improvements after the Commencement Date of
this Lease
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that produce a net reduction in operating costs, together with an
assumed interest factor equal to the prime rate of US Bank or its
successor, plus two percent (2%) per annum, on the unamortized
balance thereof; and in general all other costs and expenses that
would, under generally accepted accounting principles, be regarded
as operating and maintenance costs and expenses. There shall also
be included in Operating Expenses the cost (or portion thereof
reasonably allocable to the Building, amortized over such period
as Landlord shall reasonably determine, together with an assumed
interest factor equal to the prime rate of US Bank or its
successor, plus two percent (2%) per annum, on the unamortized
balance) of any capital improvements made to the Building by
Landlord after the date of this Lease that are required under any
governmental law or regulation that was not applicable to the
Building at the time it was constructed. Notwithstanding the
foregoing, Operating Expenses shall not include (i) the cost of
alterations to space in the Building leased or to be leased to
others; (ii) depreciation, interest and principal payments of
mortgages and other debt costs, if any; (iii) federal, state and
city income, excess profit, gift, estate, succession, inheritance,
franchise and transfer taxes, and any other taxes relating to the
operation of Landlord's business but not the Building; (iv)
expenses for capital improvements made to the Building or Common
Areas except any capital improvements which results in savings of
labor or other costs to the extent of the lesser of the cost of
such capital improvements amortized over its useful life or the
annual cost savings resulting from such capital improvement; (v)
those expenses incurred in leasing space in the Building; and (vi)
any cost or expenditure or any portion thereof for which Landlord
has been reimbursed, whether by insurance proceeds or otherwise,
except reimbursements or other payments from other tenants of the
Building in respect to costs and expenses which are Operating
Expenses.
3. "Building Expense Percentage" -- shall mean the percentage
specified in Item C of the Basic Lease Provisions. This percentage
was determined by dividing the Rentable Area of Leased Premises as
specified in Item B of the Basic Lease Provisions by the total
rentable area in the Building.
Notwithstanding the foregoing, in the event that any Building tenant is solely
and individually responsible for payment of one or more components of Operating
Expenses as they relate solely to such tenant's leased premises (e.g., such
tenant's electrical service is separately metered and billed to such tenant),
the Building Expense Percentage of each other Building tenant (including
Tenant) with respect to such component(s) of Operating Expenses as they relate
to other leased premises in the Building shall be increased so as to be a
fraction, the numerator of which is such other tenant's rentable area of leased
premises, and the denominator of which is the aggregate rentable area of leased
premises of all tenants not solely and individually responsible for payment of
such component(s) as they relate to their own leased premises.
4. "Landlord's Share of Operating Expenses" -- shall be an amount
equal to the greater of a $7.25 RSF Expense Stop, or an amount
equal to the Base Year Expense Stop times the square feet within
the Rentable Area of Leased Premises as specified in Item B of the
Basic Lease Provisions. The Base Year Expense Stop shall be an
amount equal to the Operating Expenses (as measured per rentable
square foot) actually incurred during the calendar year, 2003,
grossed up to an annualized ninety-five percent (95%) or greater
occupancy and for fully-assessed annual taxes.
5. "Tenant's Proportionate Share of Operating Expenses" shall be an
amount equal to the remainder of (i) the product of Tenant's
Building Expense Percentage times the Building Operating Expenses,
less (ii) Landlord's Share of Operating Expenses; provided,
however, Tenant's Proportionate Share of Operating Expenses shall
not increase at a rate in excess of four percent (4%) per annum on
a cumulative basis, provided further that increases in cost of
Building electricity and other utilities, taxes and insurance
shall not be included in this limitation.
B. Payment Obligation. In addition to the Minimum Annual Rent specified in
this Lease, Tenant shall pay to Landlord as additional rent for the Leased
Premises, in each calendar
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year or partial calendar year during the term of this Lease, an amount
equal to the Annual Rental Adjustment for such calendar year or
partial calendar year.
1. Tenant's Annual Proportionate Share of Building Operating
Expenses - The Annual Rental Adjustment shall be estimated
annually by Landlord. Tenant shall pay to Landlord each month, at
the same time the Monthly Rental Installment is due, an amount
equal to one-twelfth (1/12) of the estimated Annual Rental
Adjustment.
2. Increases in Estimated Annual Rental Adjustment - If real estate
taxes, the cost of utility or janitorial services or any other
Operating Expenses increase during a calendar year, Landlord may
increase the estimated Annual Rental Adjustment during such year
by giving Tenant written notice to that effect, and thereafter
Tenant shall pay to Landlord, in each of the remaining months of
such year, an amount equal to the amount of such increase in the
estimated Annual Rental Adjustment divided by the number of
months remaining in such year.
3. Adjustment to Actual Annual Rental Adjustment - Following the end
of each calendar year (or partial calendar year, as appropriate)
during the term of this Lease, Landlord shall prepare and deliver
to Tenant a statement showing Tenant's actual Annual Rental
Adjustment during such period. Within thirty (30) days after
receipt of the aforementioned statement, Tenant shall pay to
Landlord, or Landlord shall credit against the next rent payment
or payments due from Tenant, as the case may be, the difference
between the actual amount of Tenant's Annual Rental Adjustment
for such period and the estimated amount paid by Tenant for such
period. If this Lease shall commence, expire or be terminated on
any date other than the last day of a calendar year, then the
actual amount of Tenant's Proportionate Share of Operating
Expenses for such partial calendar year shall be prorated on the
basis of the number of days during the year this Lease was in
effect in relation to the total number of days in such year.
4. Tenant Verification - Only upon twenty (20) days written notice
to Landlord, Tenant or its accountants shall have the right to
inspect, at reasonable times and in a reasonable manner, during
the ninety (90) day period following the delivery of Landlord's
statement of the actual amount of Tenant's Annual Rental
Adjustment, such of Landlord's books of account and records as
reasonably pertain to and contain information concerning such
costs and expenses in order to verify the amounts thereof.
Section 3.03 Contribution for Certain Tenant Finish Improvements. Tenant
shall pay to Landlord all costs of Tenant's Work for tenant finish improvements
in excess of the Allowance, as provided for in Exhibit B and Exhibit F.
ARTICLE 4 - SECURITY DEPOSIT
As security for the performance and observance by Tenant of all of its
obligations under this Lease, Tenant has deposited with Landlord the sum
specified in Item H of the Basic Lease Provisions, which sum shall be held by
Landlord as a security deposit during the terms of this Lease. If Tenant
performs and observes all of the terms, conditions and covenants of this Lease
that are required to be performed and observed by it, Landlord shall return the
security deposit, or balance thereof then held by Landlord, to Tenant within
sixty (60) days after the expiration of this Lease or after Tenant surrenders
possession of the Leased Premises, whichever is later. In the event of a default
by Tenant in the payment of rent or the performance or observance of any of the
other terms, conditions, or covenants of this Lease, then Landlord may, at its
option and without notice, apply all or any part of the security deposit in
payment of such rent or to cure any other such default; and if Landlord does so,
Tenant shall, upon request, deposit with Landlord the amount so applied so that
Landlord will have on hand at all times during the term of this Lease the full
amount of the security deposit. Landlord shall not be required to hold the
security deposit as a separate account, but may commingle it with Landlord's
other funds.
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In the event of a sale of the Building, Landlord shall have the right to
transfer the security deposit to its purchaser, and Landlord shall thereupon be
released from all responsibility for the return of such deposit; and Tenant
agrees to look solely to the new purchaser for the return of such deposit. In
the event of an assignment of this Lease by Tenant, the security deposit shall
be deemed to be held by Landlord as a deposit made by the assignee, and Landlord
shall have no further responsibility for the return of such deposit to the
assignor.
ARTICLE 5 - OCCUPANCY AND USE
Section 5.01. Occupancy. Tenant shall use and occupy the Leased Premises for
the purposes set forth in Item J of the Basic Lease Provisions and shall not
use the Leased Premises for any other purpose except with the prior written
consent of Landlord.
Section 5.02. Covenants of Tenant Regarding Use. In connection with its use of
the Leased Premises, Tenant agrees to do the following:
A. Tenant shall use the Leased Premises and conduct its business thereon in a
safe, careful, reputable and lawful manner.
B. Tenant shall not use the Leased Premises for any unlawful purpose or act;
shall not commit or permit any waste or damage to the Lease Premises; shall
comply with and obey all laws, regulations and orders of any governmental
authority or agency, all reasonable directions of the Landlord, including
the Building Rules and Regulations attached hereto as Exhibit C, as the
same may be modified from time to time by Landlord on reasonable notice to
Tenant; shall not do or permit anything to be done in or about the Leased
Premises that will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building or injure or annoy them.
Landlord shall not be responsible to Tenant for the nonperformance by any
other tenant or occupant of the Building of any of the Building Rules and
Regulations, but agrees to take reasonable measures to assure such other
tenant's compliance.
C. Tenant shall not overload the floors of the Leased Premises beyond their
designed weight-bearing capacity, which Landlord has determined to be
seventy (70) pounds per square foot live load, including an allowance for
partition load. Landlord reserves the right to direct the positioning of
all heavy equipment, furniture and fixtures that Tenant desires to place in
the Leased Premises so as to distribute properly the weight thereof, and to
require the removal of any equipment or furniture that exceeds the weight
limit specified herein.
D. Tenant shall not use the Leased Premises, or allow the Leased Premises to
be used, for any purpose or in any manner that would, in Landlord's
opinion, invalidate any policy of insurance now or hereafter carried on the
Building or increase the rate of premiums payable on any such insurance
policy. Should Tenant fail to comply with this covenant, Landlord may, at
its option, require Tenant to stop engaging in such activity or to
reimburse Landlord as additional rent for any increase in premiums charged
during the term of this Lease on the insurance carried by Landlord on the
Leased Premises and attributable to the use being made of the Leased
Premises by Tenant.
E. Tenant shall not inscribe, paint, affix or display any signs,
advertisements or notices on the Building, except for such tenant
identification information as Landlord permits to be included or shown on
the directory board in the main lobby and on or adjacent to the access door
or doors to the Leased Premises.
Section 5.03. Landlord's Rights Regarding Use. In addition to the rights
specified elsewhere in the Lease, Landlord shall have the following rights
regarding the use of the Leased Premises or the Common Areas by Tenant, its
employees, agents, customers and invitees, each of which may be exercised
without notice or liability to Tenant:
A. Landlord shall install such signs, advertisements or notices or tenant
identification information on the directory board and tenant access doors,
as it shall deem necessary or proper.
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B. Landlord shall approve or disapprove, prior to installation, all types of
drapes; shades and other window coverings used in the Leased Premises, and
may control all internal lighting that may be visible from outside the
Leased Premises.
C. Landlord shall approve or disapprove all sign painting and lettering used
on the Leased Premises and the Building, including the suppliers thereof.
D. Landlord may grant to any person the exclusive right to conduct any
business or render any service in the Building, provided that such
exclusive right shall not operate to limit Tenant from using the Leased
Premises for the use permitted in Item J of the Basic Lease Provisions.
E. Landlord may control the Common Areas in such manner as it deems necessary
or proper, including by way of illustration and not limitation; requiring
all persons entering or leaving the Building to identify themselves and
their business in the Building; excluding or expelling any peddler,
solicitor or loud or unruly person from the Building; and closing or
limiting access to the Building or any part thereof, including entrances,
corridors, doors and elevators, during times of emergency repairs or after
regular business hours.
Service 5.04. Access to and Inspection of the Leased Premises. Upon not less
than 48 hours prior written notice, Landlord, its employees and agents and any
mortgagee of the Building shall have the right to enter any part of the Leased
Premises during normal business hours for the purposes of examining or
inspecting the same, showing the same to prospective purchasers, mortgagees or
tenants and making such repairs, alterations or improvements to the Leased
Premises or the Building as Landlord may deem necessary or desirable; provided,
however, in the event of an emergency, as determined in Landlord's reasonable
judgment, no prior notice shall be required and entry shall not be limited to
normal business hours. In addition, during the last ninety (90) days of the
Term, Landlord, its employees and agents shall have the right to enter any part
of the Leased Premises at reasonable times for the purposes of showing the same
to prospective tenants. If representatives of Tenant shall not be present to
open and permit such entry into the Leased Premises at any time when such entry
is necessary or permitted hereunder, Landlord and its employees and agents may
enter the Leased Premises by means of a master or pass key or otherwise.
Landlord shall incur no liability to Tenant for such entry, nor shall such entry
constitute an eviction of Tenant or a termination of this Lease, or entitle
Tenant to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND OTHER BUILDING SERVICES
Section 6.01. Services to be Provided. Provided Tenant is not in material
default under this Lease beyond any applicable notice and cure period herein
provided, Landlord shall furnish to Tenant, except as noted below, the following
utilities and other building services to the extent reasonably necessary for
Tenant's comfortable use and occupancy of the Leased Premises for general office
use:
A. Heating, ventilation and air-conditioning between the hours of 8:00 a.m.
and 6:00 p.m. on Monday through Friday and 8:00 a.m. to 1:00 p.m. on
Saturday of each week except on legal holidays. If Tenant shall require air
conditioning (heating and cooling) during any season outside the hours and
days above specified, Landlord shall furnish the same for the area or
areas specified in a written request of Tenant delivered to the manager of
the Building, and for such service, Tenant shall pay Landlord, upon receipt
of a ▇▇▇▇ therefor, an amount equal to the rate Landlord, at that time, is
charging for service, such amount shall be equal to twenty-five ($25.00)
per hour for the first year of the Lease term, and shall not increase by
more than $5.00 per hour, cumulative, for each subsequent year of the term;
B. Electrical current not to exceed five ▇▇▇▇▇ (5) ▇▇▇▇▇ per square foot;
C. Water in the Common Areas for lavatory and drinking purposes;
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D. Automatic elevator service;
E. Cleaning and janitorial service, including the supplying and installing
of paper towels, toilet tissue and soap in the Common Areas on Monday
through Friday of each week except legal holidays; provided, however,
Tenant shall be responsible for carpet cleaning other than routine
vacuuming;
F. Washing of windows at intervals reasonably established by Landlord;
G. Replacement of all lamps, bulbs, starters and ballasts in Building
standard lighting (Landlord's standard tenant finish improvements being
described in Exhibit B and Exhibit F) as required from time to time as a
result of normal usage;
H. Cleaning and maintenance of the Common Areas, including the removal of
rubbish and snow; and
I. Repair and maintenance to the extent specified elsewhere in this Lease.
J. Exterior lighting and pass-card access to the Building after standard
building hours.
K. Patrol service to monitor the parking lot and Building entrances twice
nightly.
L. Adjacent non-reserved parking in parking facilities adjacent to the
Building.
Notwithstanding the foregoing, it is understood and agreed that at Landlord's
option, electrical service for the Leased Premises (including but not limited to
the electrical power used to operate the heating, ventilation and air
conditioning equipment serving the Leased Premises) may be separately metered
for the Leased Premises, in which event (i) Tenant shall be responsible for the
timely payment of all charges for electric power supplied through such meter,
(ii) neither Landlord nor any other tenant in the Building shall have any
obligation to pay for all or any part of the charges for electric power used in
the Leased Premises or the operations thereof, and (iii) the only electric
service charges that will be included by Landlord in the Operating Expenses for
purposes of Tenant's Annual Rental Adjustment will be those relating to the
Common Areas (including but not limited to the parking garage and the foyers,
hallways and corridors of the Building).
Section 6.02. Additional Services. If Tenant requests any other utilities or
building services in addition to those identified above or any of the above
utility or building services in frequency, scope, quality or quantity
substantially greater than those that Landlord determines are normally required
by other tenants in the Building for general office use, then Landlord shall use
reasonable efforts to attempt to furnish Tenant with such additional utilities
or building services. In the event Landlord is able to and does furnish such
additional utilities or building services, the costs thereof shall be determined
solely by Landlord, exercising its reasonable business judgment, and shall be
borne by Tenant, who shall reimburse Landlord monthly for the same as additional
rent at the same time Monthly Rental Installments and other additional rent is
due. If any lights, machines or equipment (including but not limited to
computers) used by Tenant in the Leased Premises materially affect the
temperature otherwise maintained by the Building's air-conditioning system or
generate substantially more heat in the Leased Premises than that which normally
would be generated by the lights and business machines typically used by other
tenants in the Building or by tenants in comparable office buildings, then
Landlord shall have the right to install any machinery or equipment that
Landlord reasonably considers necessary in order to restore the temperature
balance between the Leased Premises and the rest of the building, including
equipment that modifies the building's air-conditioning system. All costs
expended by Landlord to install any such machinery and equipment and any
additional costs of operation and maintenance occasioned thereby shall be borne
by Tenant, who shall reimburse Landlord for the same as provided in this Section
6.02.
Without Landlord's prior written consent, Tenant's use of electric current shall
not exceed the capacity of the feeders to the Building or the risers or wiring
installations, nor shall Tenant install or connect any computer, electronic data
processing or other electrical equipment that in the aggregate causes Tenant's
electrical usage to exceed five (5) ▇▇▇▇▇ per square foot. If Landlord
determines that Tenant's electrical usage exceeds the aforesaid limit or
otherwise exceeds the
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designed load capacity of the Building's electrical system or is in any way
incompatible therewith, then Landlord shall have the right, as a condition to
granting its consent, to make such modifications to the electrical system or
other parts of the building or Leased Premises, or to require Tenant to make
such modifications to the equipment to be installed or connected, as Landlord
considers to be reasonably necessary before such equipment may be so installed
or connected. The cost of any such modifications shall be borne by Tenant, who
shall reimburse Landlord for the same (or any portion thereof paid by Landlord)
as provided in this Section 6.02.
Section 6.03. Interruption of Services. Tenant understands, acknowledges and
agrees that any one or more of the utilities or other building services
identified in Section 6.01 may be interrupted by reason of accident, emergency
or other causes beyond Landlord's control, or may be discontinued or diminished
temporarily by Landlord or other persons until certain repairs, alterations or
improvements can be made; that Landlord does not represent or warrant the
uninterrupted availability of such utilities or building services, and that any
such interruption shall not be deemed an eviction or disturbance of Tenant's
right to possession, occupancy and use of the Leased Premises or any part
thereof, or render Landlord liable to Tenant for damages by abatement of rent or
otherwise, or relieve Tenant from the obligation to perform its covenants under
this Lease; provided, however, that any such interruption that lasts for three
(3) or more consecutive business days and prevents Tenant from conducting
business in the ordinary course within the Leased Premises shall be deemed to
constitute a material disturbance of Tenant's right to use the Leased Premises,
entitling Tenant to an equitable abatement of rent until such essential
utilities or other building services are restored.
ARTICLE 7 - REPAIRS, MAINTENANCE, ALTERATIONS, and IMPROVEMENTS AND FIXTURES
Section 7.01. Repair and Maintenance of Building. Subject to Section 7.02 and
except for any repairs made necessary by the negligence, misuse or default of
Tenant, its employees, agents, customers and invitees, Landlord shall make all
necessary repairs to the exterior walls, exterior doors, windows, corridors and
other Common Areas of the Building, and Landlord shall keep the Building in a
safe, clean and neat condition and use reasonable efforts to keep all equipment
used in common with other tenants, such as elevators, plumbing, heating, air
conditioning and similar equipment, in good condition and repair. Except as
provided in Section 6.03 and in Article 8 and Article 10 hereof, there shall be
no abatement of rent and no liability of Landlord by reason of any injury to or
interference with Tenant's business arising from the making of any repairs,
alterations or improvements in or to any portion of the Building or the Leased
Premises or in or to any fixtures, appurtenances and equipment therein or
thereon.
Section 7.02. Repair and Maintenance of Leased Premises. Landlord shall keep and
maintain the Leased Premises in good order, condition and repair. Except for the
services specified in Section 6.01 (E), (F) and (G), and except for ordinary
wear and tear and damage that Tenant is not obligated to repair as provided
elsewhere in this Lease, the cost of all repairs and maintenance to the Leased
Premises shall be borne by Tenant, who shall be separately billed and shall
reimburse Landlord for the reasonable cost of same as additional rent.
Section 7.03. Alterations or Improvement. Tenant may not make, or permit to be
made, alterations to the Leased Premises without the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed. If
Landlord allows Tenant to make any such alterations, Tenant shall make the same
in accordance with all applicable laws and building codes, in a good and
workmanlike manner and in quality equal to or better than the original
construction of the Building and shall comply with such requirements as Landlord
considers necessary or desirable, including without limitation requirements as
to the manner in which and the times at which such work shall be done and the
contractor or subcontractors to be selected to perform such work. In addition,
Tenant shall provide Landlord with evidence of insurance coverage for such
alterations and detailed plans and specifications satisfactory to Landlord prior
to construction of such improvements. Upon completion of such construction,
Tenant shall provide Landlord with lien waivers from all persons performing work
or supplying materials for such alterations and such other evidence as Landlord
may require in order to assure itself that no person is in a position to assert
a claim or lien against the Leased Premises or the Building in connection
therewith. Tenant shall promptly pay all costs attributable to such alterations.
Tenant shall promptly repair any damage to the Leased Premises or the Building
caused by any
10
such alterations. Any alterations to the Leased Premises, except movable office
furniture and equipment and trade fixtures, shall become a part of the realty
and the property of Landlord and shall not be removed by Tenant.
Section 7.04. Trade Fixtures. Any trade fixtures installed on the Leased
Premises by Tenant at its own expense, such as movable partitions, counters,
shelving, showcases, mirrors and the like, may, and, at the request of Landlord
shall, be removed on the expiration or earlier termination of this Lease,
provided that Tenant is not then in default, that Tenant bears the cost of such
removal, and further that Tenant repairs at its own expense any and all damage
to the Leased Premises resulting from such removal. If Tenant fails to remove
any such trade fixtures from the Leased Premises on the expiration or earlier
termination of this Lease, all such trade fixtures shall become the property of
Landlord unless Landlord elects to require their removal, in which case Tenant
shall, at its expense, promptly remove the same and restore the Leased Premises
to their prior condition. This provision shall survive the expiration or earlier
termination of this Lease.
ARTICLE 8 - FIRE OR OTHER CASUALTY; CASUALTY INSURANCE
Section 8.01. Substantial Destruction of the Building or the Leased Premises. If
either the Building or the Leased Premises should be substantially destroyed or
damaged (which as used herein means destruction or material damage to at least
one-half (1/2) of the Building or the Leased Premises) by fire or other
casualty, then Landlord may, at its option, terminate this Lease by giving
written notice of such termination to Tenant within thirty (30) days after the
date of such casualty. In such event, rent shall be apportioned to and shall
cease as of the date of such casualty. If Landlord does not exercise this
option, then the Leased Premises shall be reconstructed and restored, at
Landlord's expense, to substantially the same condition as prior to the
casualty; provided however, that with respect to the Leased Premises, Landlord's
obligation hereunder shall be limited to the reconstruction of such of the
tenant finish improvements as were originally required to be made by Landlord in
accordance with Exhibit B and Exhibit F, and further provided that, if Tenant
has made any additional improvements pursuant to Section 7.03, Tenant shall
reimburse Landlord for the cost of reconstructing the same. In the event of such
reconstruction, rent shall be abated from the date of the casualty until
substantial completion of the reconstruction repairs; and this Lease shall
continue in full force and effect for the balance of the term. Landlord shall
use reasonable diligence in completing such reconstruction repairs, but in the
event Landlord fails to complete the same within one hundred twenty (120) days
from the date of the casualty or such longer period as is reasonably necessary
for Landlord to complete the repair using reasonable diligence, Tenant may, at
its option, terminate this Lease by giving Landlord written notice of such
termination, whereupon this Lease shall terminate.
Section 8.02. Partial Destruction of the Leased Premises. If the Leased Premises
should be damaged by fire or other casualty, but not substantially destroyed or
damaged to the extent provided in Section 8.01, then such damaged part of the
Leased Premises shall be reconstructed and restored, at Landlord's expense, to
substantially the same condition as it was prior to the casualty; provided,
however, that Landlord's obligation hereunder shall be limited to the
reconstruction of such of the tenant finish improvements as were originally
required to be made by Landlord in accordance with Exhibit B and Exhibit F, and
further provided that if Tenant has made any additional improvements pursuant to
Section 7.03, Tenant shall reimburse Landlord for the cost of reconstructing the
same. In such event, if the damage is expected to prevent Tenant from carrying
on its normal business activity in the Leased Premises to a reasonable extent,
rent shall be abated in the proportion that the approximate area of the damaged
part bears to the total area in the Leased Premises from the date of the
casualty until substantial completion of the reconstruction repairs; and this
Lease shall continue in full force and effect for the balance of the term.
Landlord shall use reasonable diligence in completing such reconstruction
repairs, but in the event Landlord fails to complete the same within one hundred
twenty (120) days from the date of the casualty or such longer period as is
reasonably necessary for Landlord to complete the repair using reasonable
diligence, Tenant may, at its option, terminate this Lease by giving Landlord
written notice of such termination, whereupon this Lease shall terminate.
Section 8.03. Casualty Insurance. Landlord shall at all times during the term
of this Lease carry a policy of insurance that insures the replacement cost of
the Building, including the Leased Premises, against loss or damage by fire or
other casualty (namely, the perils against which
11
insurance is afforded by a standard "all-risk" casualty policy); provided,
however, that Landlord shall not be responsible for, and shall not be obligated
to insure against, any loss of or damage to any personal property of Tenant or
that Tenant may have in the Building or the Leased Premises or any trade
fixtures installed by or paid for by Tenant on the Leased Premises or any
additional improvements that Tenant may construct on the Leased Premises, and
Landlord shall not be liable for any loss or damage to such property, regardless
of cause, including the negligence of Landlord and its employees, agents,
customers and invitees. If the tenant finish improvements installed by Landlord
or Tenant pursuant to Exhibit B that are in excess of the Building standard
tenant finish improvements, or any alterations or improvements made by Tenant
pursuant to Section 7.03, result in an increase in the premiums charged during
the term of this Lease on the casualty insurance carried by Landlord on the
Building, then the cost of such increase in insurance premiums shall be borne by
Tenant, who shall reimburse Landlord for the same as additional rent after being
separately billed therefor.
Section 8.04. Waiver of Subrogation. Landlord and Tenant agree to have all
casualty insurance that may be carried by either of them endorsed with a clause
providing that any release from liability of or waiver of claim for recovery
from the other party entered into in writing by the insured thereunder prior to
any loss or damage shall not affect the validity of said policy or the right of
the insured to recover thereunder; and providing further that the insurer waives
all rights of subrogation that such insurer might have against the other party.
Without limiting any release or waiver of liability or recovery contained in any
other section of this Lease, but rather in confirmation and furtherance thereof,
Landlord waives all claims for recovery from Tenant, and Tenant waives all
claims for recovery from Landlord, the managing agent of the Building and their
respective agents, partners, servants and employees, for any loss or damage to
any of its property caused by a fire or other peril usually covered by a policy
of insurance of the type described in Section 8.03 or 9.02C, and each party
releases the other from all liability for damage from those causes, including
any subrogation claims of any insurer. This provision shall apply regardless of
the negligence of either party and shall not be limited by the amount of
insurance coverage.
Notwithstanding the foregoing or anything contained in this Lease to the
contrary, no such release or waiver of claims shall be operative, nor shall the
foregoing endorsements be required, in any case where the effect of such release
or waiver is to invalidate insurance coverage or invalidate the right of the
insured to recover thereunder or increase the cost thereof (provided that in the
case of increased cost the other party shall have the right, within ten (10)
days following written notice, to pay such increased cost, thereby keeping such
release or waiver in full force and effect).
ARTICLE 9 - GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND INSURANCE
Section 9.01. Tenant's Responsibility. Tenant shall assume the risk of, be
responsible for, have the obligation to insure against and indemnify Landlord
and hold it harmless from any and all liability for any loss of or damage or
injury to any person (including death resulting therefrom) or property
occurring in, on or about the Leased Premises, regardless of cause, except for
any loss or damage from fire or casualty as provided in Section 8.03 and except
for that caused by the negligence of Landlord and its employees, agents,
tenants, customers and invitees; and, except for such loss or damage caused by
Landlord's negligence or that of its employees, agents, tenants, customers and
invitees, Tenant hereby releases Landlord from any and all liability for the
same. Tenant's obligation to indemnify Landlord hereunder shall include the
duty to defend against any claims asserted by reason of such loss, damage or
injury and to pay any adjustments, settlements, costs, fees and expenses,
including attorneys' fees, incurred in connection therewith. Notwithstanding
anything herein to the contrary, Tenant shall bear the risk of any loss or
damage to its property as provided in Section 8.03.
Section 9.02. Tenant's Insurance. Tenant, in order to enable it to meet its
obligation to insure against the liabilities specified in this Lease, shall at
all times during the term of this Lease carry, at its own expense, for the
protection of Tenant and Landlord, as their interests may appear, one or more
policies of general public liability and property damage insurance, issued by
one or more insurance companies acceptable to Landlord, with the following
minimum coverage's:
A. Worker's Compensation - minimum statutory amount.
12
B. Comprehensive General Liability -- Not less than $1,000,000 Combined
Insurance, including Blanket, Single Limit for both bodily injury
Contractual Liability, Broad and property damage.
Form Property Damage, Personal
Injury, Completed Operations,
Products Liability, Fire Damage.
C. "All Risk" Casualty Coverage, Vandalism and Malicious Mischief and
Sprinkler Leakage insurance, for the full cost of replacement of Tenant's
property.
The insurance policy or policies for the insurance required in B and C above
shall name Landlord as an additional insured and shall provide that they may not
be canceled on less than thirty (30) days' prior written notice to Landlord.
Tenant shall furnish Landlord with Certificates of Insurance evidencing all
required coverage. Should Tenant fail to carry such insurance and furnish
Landlord with such Certificates of Insurance after a request to do so, Landlord
shall have the right to obtain such insurance and collect the cost thereof from
Tenant as additional rent.
Section 9.03. Landlord's Responsibility. Landlord shall assume the risk of, be
responsible for, have the obligation to insure against and indemnify Tenant and
hold it harmless from, any and all liability for any loss of or damage or injury
to person (including death resulting therefrom) or property (other than Tenant's
property as provided in Section 8.03) occurring in, on or about the Common
Areas, regardless of cause, except for that caused by the negligence of Tenant
and its employees, agents, subtenants, customers and invitees; and Landlord
hereby releases Tenant from any and all liability for the same. Landlord's
obligation to indemnify Tenant hereunder shall include the duty to defend
against any claims asserted by reason of such loss, damage or injury and to pay
any judgments, settlements, costs, fees and expenses, including attorneys' fees,
incurred in connection therewith.
ARTICLE 10 - EMINENT DOMAIN
If the whole or any part of the Leased Premises shall be taken for public or
quasi-public use by a governmental or other authority having the power of
eminent domain or shall be conveyed to such authority in lieu of such taking,
and if such taking or conveyance shall cause the remaining part of the Leased
Premises to be untenantable and inadequate for use by Tenant for the purpose for
which they were leased, then Tenant may, at its option, terminate this Lease. If
a part of the Leased Premises shall be taken or conveyed but the remaining part
is tenantable and adequate for Tenant's use, then this Lease shall be terminated
as to the part taken or conveyed as of the date Tenant surrenders possession;
Landlord shall make such repairs, alterations and improvements as may be
necessary to render the part not taken or conveyed tenantable; and the rent
shall be reduced in proportion to the part of the Leased Premises so taken or
conveyed. All compensation awarded for such taking or conveyance shall be the
property of Landlord without any deduction therefrom for any present or future
estate of Tenant, and Tenant hereby assigns to Landlord all its right, title and
interest in and to any such award.
ARTICLE 11 - LIENS -- Intentionally Omitted
ARTICLE 12 - RENTAL, PERSONAL PROPERTY AND OTHER TAXES
Tenant shall pay before delinquency any and all taxes, assessments, fees or
charges, including any sales, gross income, rental, business occupation or other
taxes, levied or imposed upon Tenant's business operations in the Leased
Premises and any personal property or similar taxes levied or imposed upon
Tenant's trade fixtures, leasehold improvements or personal property located
within the Leased Premises. In the event any such taxes, assessments, fees or
charges are charged to the account of, or are levied or imposed upon the
property of Landlord, Tenant shall reimburse Landlord for the same as additional
rent. If any tenant finish improvements, trade fixtures, alterations or
improvements or business machines and equipment located in, on or about the
Leased Premises, regardless of whether they are installed or paid for by
Landlord or Tenant and whether or not they are affixed to and become a part of
the realty and the property of
13
Landlord, are assessed for real property tax purposes at a valuation higher than
that at which other such property in other leased space in the Building is
assessed, then Tenant shall reimburse Landlord as additional rent for the
amount of real property taxes shown on the appropriate governmental official's
records as having been levied upon the Building or other property of Landlord
by reason of such excess assessed valuation.
ARTICLE 13 - ASSIGNMENT AND SUBLETTING
Tenant may not assign this Lease or sublet the Leased Premises or any part
thereof without the prior written consent of Landlord, which consent shall not
be unreasonably withheld or delayed; and any attempted assignment or subletting
without such consent shall be invalid. At least thirty (30) days prior to the
proposed effective date of such assignment or sublease, Tenant shall provide
Landlord a signed original of the document. Tenant shall also provide, at
Landlord's request, any information on the proposed assignee or subtenant that
Landlord may require to make a determination of the quality of such proposed
assignee or subtenant. In the event of a permitted assignment or subletting,
Tenant shall nevertheless at all times remain fully responsible and liable for
the payment of rent and the performance and observance of all of Tenant's other
obligations under the terms, conditions and covenants of this Lease except as
may be otherwise provided for herein. No assignment or subletting of the Leased
Premises or any part thereof shall be binding upon Landlord unless such assignee
or subtenant shall deliver to Landlord an instrument (in recordable form, if
requested) containing an agreement of assumption of all of Tenant's obligations
under this Lease. Upon the occurrence of a default hereunder, if all or any part
of the Leased Premises are then assigned or sublet, Landlord, in addition to any
other remedies provided by this Lease or by law, may, at its option, collect
directly from the assignee or subtenant all rent becoming due to Landlord by
reason of the assignment or subletting. Any collection by Landlord from the
assignee or subtenant shall not be construed to constitute a waiver or release
of Tenant from the further performance of its obligations under this Lease or
the making of a new lease with such assignee or subtenant. If Tenant shall make
any assignment or sublease, with Landlord's consent, for a rental in excess of
the rent payable under this Lease (including any applicable escalations), after
deducting reasonable and customary expenses incurred by Tenant in connection
therewith and paying to Landlord reasonable and customary expenses incurred by
Tenant in connection therewith and paying to Landlord reasonable and customary
expenses incurred by it in connection therewith, Tenant shall retain fifty
percent (50%) of such excess and shall pay the remaining fifty percent (50%) to
Landlord.
Landlord may, in the reasonable exercise of its discretion, refuse to give its
consent to any proposed assignment or subletting for any reason (other than the
creditworthiness of the proposed assignee or subtenant), including, but not
limited to Landlord's determination that its interest in the Lease or the
Leased Premises would be adversely affected by (i) the business reputation of
the proposed assignee or subtenant, or (ii) the proposed use of the Leased
Premises by, or business of, the proposed assignee or subtenant. If Landlord
refuses to give its consent to any proposed assignment or subletting, Landlord
may, at its option, within thirty (30) days after receiving notice of the
proposal, terminate this Lease in the case of a proposed assignment, or in the
case of proposed subletting, terminate this Lease with respect to the portion
of the Leased Premises proposed to be sublet, by giving Tenant thirty (30) days
prior written notice of such termination, whereupon this Lease (in the case of
a proposed assignment), or portion of the Lease with respect to the proposed
area to be sublet, shall terminate.
ARTICLE 14 - TRANSFERS BY LANDLORD
Section 14.01. Sale and Conveyance of the Building. Landlord shall have the
right to sell and convey the Building at any time during the term of this
Lease, subject only to the rights of Tenant hereunder; and such sale and
conveyance shall operate to release Landlord from liability hereunder after the
date of such conveyance as provided in Section 15.04.
Section 14.02. Subordination. Landlord shall have the right to subordinate this
Lease to any mortgage or deed of trust (herein a "mortgage") presently existing
or hereafter placed upon the Building by so declaring in such mortgage, and the
recording of any such mortgage shall make it prior and superior to this Lease
regardless of the date of execution or recording of either document, provided
that, following Tenant's request, Landlord shall cause the holder of such
14
mortgage or trustee to execute and deliver to Tenant for its execution a
subordination, nondisturbance and attornment agreement which provides, among
other things, that so long as no default has occurred and is continuing beyond
the period of time allowed for the remedy thereof under the terms of this
Lease, the holder of the mortgage or trustee shall not disturb Tenant's
leasehold interest or possession of the Leased Premises in accordance with the
terms hereof. Within ten (10) days of Landlord's delivery thereof to Tenant,
Tenant shall execute and deliver to Landlord, without cost, the subordination,
nondisturbance and attornment agreement in such form as reasonably may be
deemed necessary or desirable by Landlord or its mortgagee to confirm the
subordination of this Lease. Within ten (10) days of Landlord's written request
therefor, Tenant also shall deliver to Landlord an Estoppel Certificate in the
form attached hereto as Exhibit D. Tenant shall, in the event any proceedings
are brought for the foreclosure of any such mortgage, attorn to the purchaser
upon any such foreclosure and recognize such purchaser as the landlord under
this Lease.
ARTICLE 15 - DEFAULTS AND REMEDIES
Section 15.01. Defaults by Tenant. The occurrence of any one or more of the
following events shall be a default under and breach of this Lease by Tenant:
A. Tenant shall fail to pay any Monthly Rental Installment of Minimum Annual
Rent when due, or Tenant shall fail to pay the Annual Rental Adjustment or
any other amounts due Landlord from Tenant as additional rent or otherwise
within five (5) days after receipt of notice from Landlord that such
payment is due or past due.
B. Tenant shall fail to perform or observe any term, condition, covenant or
obligation required to be performed or observed by it under this Lease
(other than those referenced in subsection 15.01(A) hereof) for a period
of thirty (30) days after notice thereof from Landlord; provided, however,
that if the term, condition, covenant or obligation to be performed by
Tenant is of such nature that the same cannot reasonably be performed
within such thirty (30) day period, such default shall be deemed to have
been cured if Tenant commences such performance within said thirty (30)
day period and thereafter diligently undertakes to complete the same and
does so complete the required action within a time deemed to be reasonable
by Landlord.
C. Intentionally omitted.
D. A trustee or receiver shall be appointed to take possession of
substantially all of Tenant's assets in, on or about the Leased Premises
or of Tenant's interest in this Lease (and Tenant does not regain
possession within sixty (60) days after such appointment); Tenant shall
make an assignment for the benefit of creditors; or substantially all of
Tenant's assets in, on or about the Leased Premises or Tenant's interest
in this Lease shall be attached or levied under execution (and Tenant does
not discharge the same within sixty (60) days thereafter).
E. A petition in bankruptcy, insolvency, or for reorganization or arrangement
shall be filed by or against Tenant pursuant to any federal or state
statute (and, with respect to any such petition filed against it, Tenant
fails to secure a stay or discharge thereof within sixty (60) days after
the filing of the same).
Section 15.02. Remedies of Landlord. Upon the occurrence of any event of default
set forth in Section 15.01, Landlord shall have the following rights and
remedies, in addition to those allowed by law, any one or more of which may be
exercised at Landlord's option without further notice to or demand upon Tenant:
A. Landlord may apply the security deposit and/or re-enter the Leased
Premises and cure any default of Tenant, in which event Tenant shall
reimburse Landlord as additional rent for nay costs and expenses that
Landlord may incur to cure such default; and Landlord shall not be liable
to Tenant for any loss or damage that Tenant may sustain by reason of
Landlord's action unless caused by reckless or willful misconduct on the
part of Landlord.
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B. 1. Landlord may terminate this Lease as of the date of such default, in
which event: (i) neither Tenant nor any person claiming under or
through Tenant shall thereafter be entitled to possession of the
Leased Premises, and Tenant shall immediately thereafter surrender the
Leased Premises to Landlord; (ii) Landlord may re-enter the Leased
Premises and dispossess Tenant or any other occupants of the Leased
Premises by force, summary proceedings, ejectment or otherwise, and
may remove their effects, without prejudice to any other remedy that
Landlord may have for possession or arrearages in rent or other sums
due hereunder; and (iii) notwithstanding the termination of this
Lease, Landlord may declare all rent that would have been due under
this Lease for the balance of the term to be immediately due and
payable, whereupon Tenant shall be obligated to pay the same to
Landlord, together with all loss or damage that Landlord may sustain
by reason of such termination, less an amount equal to the reasonable
rental value of the Leased Premises for the remainder of the term of
this Lease (taking into account expenses of re-letting), it being
expressly understood and agreed that the liabilities and remedies
specified in this Subsection (B)(1) of Section 15.02 shall survive the
termination of this Lease; or
2. Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part of the Leased Premises for a term
different from that which otherwise would have constituted the balance
of the term of this Lease and for rent and on terms and conditions
different from those contained herein, whereupon Tenant shall be
obligated to pay to Landlord as liquidated damages the difference
between the rent provided for herein and that provided for in any
lease covering a subsequent re-letting of the Leased Premises, for the
period that otherwise would have constituted the balance of the term
of this Lease, together with all of Landlord's reasonable costs and
expenses for preparing the Leased Premises for re-letting, including
all repairs, tenant finish improvements, brokers' and attorneys' fees,
and all loss or damage that Landlord may sustain by reason of such
re-entry and re-letting. Landlord shall use reasonable efforts to
mitigate its damages by reletting the Leased Premises on commercially
reasonable terms; provided, however, that such shall not require
Landlord to relet the Leased Premises on the same terms and conditions
as set forth herein.
C. Landlord may ▇▇▇ for injunctive relief or to recover damages for any loss
resulting from the breach.
D. In the event that Tenant fails to pay within ten (10) days of the date due
and payable any Monthly Rental Installment of Minimum Annual Rent or any
monthly installment of the Annual Rental Adjustment, Tenant shall pay to
Landlord, to the fullest extent permitted by applicable law, a late charge
of four percent (4%) of the amount due and unpaid in order to compensate
Landlord for the costs and expenses of administering, handling and
processing late payments.
E. In the event Tenant fails to pay within thirty (30) days after the same is
due and payable any Monthly Rental Installment of Minimum Annual Rent, any
monthly installment of the Annual Rental Adjustment, or any other sum or
charge required to be paid by Tenant to Landlord, such unpaid amount shall
bear interest from the due date thereof to the date of payment at the
Delinquency Interest Rate until paid.
Section 15.03. Default by Landlord and Remedies of Tenant. It shall be a default
under and breach of this Lease by Landlord if it shall fail to perform or
observe any term, condition, covenant or obligation required to be performed or
observed by it under this Lease for a period of thirty (30) days after notice
thereof from Tenant; provided, however, that if the term, condition, covenant or
obligation to be performed by Landlord is of such nature that the same cannot
reasonably be performed within such thirty (30) day period, such default shall
be deemed to have been cured if Landlord commences such performance within said
thirty (30) day period and thereafter diligently undertakes to complete the
same. So long as the Leased Premises remain suitable for Tenant's proposed use,
Tenant shall not be entitled to terminate this Lease as a result of any such
default. However, in the event Landlord does not cure the above described
default in the applicable time period, then in such event Tenant may do all
things necessary to remedy such default and perform the obligations of Landlord
which have not been fully or
16
property performed. Landlord shall reimburse Tenant promptly for all costs and
expenses reasonably incurred by Tenant in connection with the foregoing
following Landlord's receipt of an itemized invoice therefor.
Section 15.04. Non-Waiver of Defaults. The failure or delay by either party
hereto to exercise or enforce at any time any of the rights or remedies or other
provisions of this Lease shall not be construed to be a waiver thereof, not
affect the validity of any part of this Lease or the right of either party
thereafter to exercise or enforce each and every such right or remedy or other
provision. No waiver of any default and/or breach of this Lease shall be deemed
to be a waiver of any other default and/or breach. The receipt by Landlord of
less than the full rent due shall not be construed to be other than a payment on
account of rent then due, nor shall any statement on Tenant's check or any
letter accompanying Tenant's check be deemed an accord and satisfaction, and
Landlord may accept such payment without prejudice to Landlord's right to
recover the balance of the rent due or to pursue any other remedies provided in
this Lease. No act or omission by Landlord or its employees or agents during the
term of this Lease shall be deemed an acceptance of a surrender of the Leased
Premises, and no agreement to accept such a surrender shall be valid unless in
writing and signed by Landlord.
Section 15.05. Attorneys' Fees. In the event either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the nondefaulting party employs
attorneys to enforce all or any part of this Lease, collect any rent due or to
become due or recover possession of the Leased Premises, the defaulting party
agrees to reimburse the nondefaulting party for the attorneys' fees incurred
thereby once a default is determined to have occurred, whether by judgment or
otherwise.
ARTICLE 16 - LANDLORD'S RIGHT TO RELOCATE TENANT
None. Intentionally omitted.
ARTICLE 17 - NOTICE AND PLACE OF PAYMENT
Section 17.01. Notices. Any notice required or permitted to be given under this
Lease or by law shall be deemed to have been given if it is written and
delivered in person or mailed by registered or certified mail, postage prepaid,
to the party who is to receive such notice at the address specified in Item N of
the Basic Lease Provisions. When so mailed, the notice shall be deemed to have
been given as of the date it was mailed. The address specified in Item N of the
Basic Lease Provisions may be changed by giving written notice thereof to the
other party.
Section 17.02. Place of Payment. All rent and other payments required to be
made by Tenant to Landlord shall be delivered or mailed to Landlord's management
agent at the address specified in Item N of the Basic Lease Provisions or any
other address Landlord may specify from time to time by written notice given to
Tenant.
ARTICLE 18 - ENVIRONMENTAL REPRESENTATIONS, COVENANTS AND INDEMNITIES
A. Tenant shall comply with all rules, laws, orders, ordinances, directions,
regulations and requirements pertaining to air and water quality, Hazardous
Materials (as hereinafter defined), waste disposal, air emissions and other
environmental matters.
B. Any Hazardous Materials brought upon, kept or used in or about the Leased
Premises by Tenant, its agents, employees, contractors or invitees shall be
used, kept and stored in a manner that complies with all laws regulating
such Hazardous Materials. No Hazardous Materials shall be brought upon,
kept or used in or about the Leased Premises unless such Hazardous
Materials are necessary or useful to Tenant's business as specified in Item
J of the Basic Lease Provisions.
C. Tenant shall indemnify, defend and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, diminution in value of the Leased Premises
or the Building, damages for the
17
loss or restriction on use of rentable or usable space, damages arising
from any adverse impact on marketing of space in the Building, and sums
paid in settlement of claims, attorneys' fees, consultant fees and expert
fees) that arise during or after the term of this Lease in connection with
contamination of the Leased Premises or the Building by Hazardous Materials
as a result of Tenant's use or activities, or the activities of Tenant's
invitees, employees, agents or contractors. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in
connection with any investigation of site conditions or any clean-up,
remedial, removal or restoration work required by any federal, state or
local governmental agency or political subdivision. Without limiting the
foregoing, if the presence of any Hazardous Material in the Leased Premises
or the Building caused or permitted by Tenant, its invitees, employees,
agents, contractors or invitees results in any contamination of the Leased
Premises of the Building, Tenant shall promptly take all actions at its
sole expense as are necessary to return the Leased Premises and/or the
Building to the condition existing prior to the presence of any such
Hazardous Materials; provided that Landlord's approval of such actions
shall first be obtained, which approval shall not be unreasonably withheld.
The foregoing indemnity and covenants shall survive the expiration or
earlier termination of this Lease.
D. As used herein, the term "Hazardous Materials" means any hazardous or
toxic substances, materials or wastes, including, but not limited, to
those substances, materials or wastes listed in the United States
Department of Transportation Hazardous Materials Table (49 CFR 172.101) or
designated by the United States Environmental Protection Agency as
hazardous substances (40 CFR Part 302) or hazardous waste (40 CFR Part
261), petroleum products, asbestos and such other substances, materials
and wastes that are or become regulated under any applicable state,
federal or local law, rule, regulation or ordinance.
ARTICLE 19 - MISCELLANEOUS GENERAL PROVISIONS
Section 19.01. Condition of Premises. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty with respect
to the Leased Premises of the Building or with respect to the suitability or
condition of any part of the Building for the conduct of Tenant's business
except as provided in this Lease.
Section 19.02. Insolvency or Bankruptcy. In no event shall this Lease be
assigned or assignable by operation of law, and in no event shall this Lease be
an asset of Tenant in any receivership, bankruptcy, insolvency or
reorganization proceeding.
Section 19.03. Common Areas. The term Common Areas, as used in this Lease,
refers to the areas of the Building and the land described in Exhibit A-1 that
are designed for use in common by all tenants of the Building and their
respective employees, agents, customers, invitees and others, and includes, by
way of illustration and not limitation, entrances and exits, hallways and
stairwells, elevators, restrooms, sidewalks, driveways, parking areas,
landscaped areas and other areas as may be designated by Landlord as part of the
Common Areas of the Building. Tenant shall have the non-exclusive right in
common with others, to the use of the Common Areas, subject to such
nondiscriminatory rules and regulations as may be adopted from time to time by
Landlord including those set forth in Section 5.02 and Exhibit C of this Lease.
Section 19.04. Choice of Law. This Lease shall be governed and construed
pursuant to the laws of the State of Tennessee.
Section 19.05. Successors and Assigns. Except as otherwise provided in this
Lease, all of the covenants, conditions and provisions of this Lease shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
Section. 19.06. Name. Tenant shall not, without the written consent of
Landlord, use the name of the Building for any purpose other than as the
address of the business to be conducted by Tenant in the Leased Premises, and
in no event shall Tenant acquire any rights in or to such name.
18
Section 19.07. Examination of Lease. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution by and delivery to both Landlord and Tenant.
Section 19.08. Time. Time is of the essence of this Lease and each and all of
its provisions.
Section 19.09. Defined Terms and Headings. The words "Landlord" and "Tenant" as
used herein shall include the plural as well as the singular. If more than one
person is named as Tenant, the obligations of such persons are joint and
several. The headings and titles to the articles and sections of this Lease are
not a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
Section 19.10. Prior Agreements; Amendments in Writing. This Lease and the
letter of understanding executed pursuant to Section 2.03 hereof contain all of
the agreements of the parties hereto with respect to any matter covered or
mentioned in this Lease, and no prior agreement, understanding or representation
pertaining to any such matter shall be effective for any purpose. No provision
of this Lease may be amended or agreed to except by an agreement in writing
signed by the parties hereto or their respective successors in interest.
Section 19.11. Payment of and Indemnification for Leasing Commissions. The
parties hereby acknowledge, represent and warrant that the only real estate
broker or brokers involved in the negotiation and execution of this Lease is
that (or are those) named in Item 1 of the Basic Lease Provisions and that no
other broker or person is entitled to any leasing commission or compensation as
a result of the negotiation or execution of this Lease. Tenant hereby
indemnifies and holds Landlord harmless from any and all liability for the
breach of any such representation and warranty on its part and shall pay any
compensation to any other broker or person who may be deemed or held to be
entitled thereto.
Section 19.12. Severability of Invalid Provisions. If any provision of this
Lease shall be held to be invalid, void or unenforceable, the remaining
provisions hereof shall not be affected or impaired, and such remaining
provisions shall remain in full force and effect.
Section 19.13. Estoppel Certificate. Tenant shall, within ten (10) days
following receipt of a written request from Landlord, execute, acknowledge and
deliver to Landlord or to any lender, purchaser or prospective lender or
purchaser designated by Landlord a written statement, in the form attached
hereto as Exhibit D or in such other form as Landlord may, in the exercise of
its normal business judgment, request, certifying (i) that this Lease is in full
force and effect and unmodified (or, if modified, stating the nature of such
modification), (ii) the date to which rent has been paid, and (iii) that there
are not, to Tenant's knowledge, any uncured defaults (or specifying such
defaults if any are claimed). Any prospective purchaser or mortgagee of all or
any part of the Building may rely upon any such statement.
Section 19.14. Services Performed by Landlord. Any services that Landlord is
required to furnish pursuant to the provisions of this Lease may, at Landlord's
option, be furnished from time to time, in whole or in part, by employees of
Landlord, by the managing agent of the Building, or by one or more third
persons; and Landlord further reserves the right to require Tenant to enter into
agreements with such third persons in form and content approved by Landlord for
the furnishing of such services; provided, however, that in no event shall
Landlord be relieved of its obligation to furnish such services as provided for
in this Lease.
Section 19.15. Force Majeure. Landlord shall be excused for the period of any
delay in the performance of any obligation hereunder when such delay is
occasioned by causes beyond its control, including, but not limited to, war,
invasion or hostility; work stoppages, boycotts, slowdowns or strikes; shortages
of materials, equipment, labor or energy; man-made or natural casualties;
unusual weather conditions or other acts of God; acts or omissions of
governmental or political bodies; or civil disturbances or riots.
Section 19.16. Consents. Whenever this Lease provides for the consent of the
Landlord or the Tenant, such consent shall not be unreasonably withheld or
delayed.
19
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
LANDLORD:
▇▇▇▇▇▇ HILLS IV PARTNERS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Partner
TENANT:
Ipayment, Inc.
By: /s/ [SIGNATURE ILLEGIBLE]
------------------------------------
Title: [TITLE ILLEGIBLE]
---------------------------------
20
STATE OF TENNESSEE
COUNTY OF DAVIDSON
Personally appeared before me, the undersigned, a Notary Public in and
for the State and County aforesaid, ▇▇▇▇ ▇. ▇▇▇▇▇▇, as Managing Partner of
▇▇▇▇▇▇ HILLS IV PARTNERS, the within named bargainer, a general partnership,
with whom I am personally acquainted (or proved to me on the basis of
satisfactory evidence), and that as such partner, he executed the foregoing
instrument for the purposes therein contained, by signing the name of the
partnership by himself as such partner.
WITNESS my hand, at office, this 03 day of October, 2002.
/s/ [SIGNATURE ILLEGIBLE]
---------------------------------------
Notary Public
My Commission Expires:
March 27, 2004
------------------------------
STATE OF TENNESSEE
COUNTY OF DAVIDSON
Before me, the undersigned, a Notary Public in and for the State and
County aforesaid, personally appeared [COPY ILLEGIBLE], with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged himself to be the EVP of Ipayment, Inc., the
within named bargainer, a corporation, and that as such officer, he executed
the foregoing instrument for the purposes therein contained, by signing the
name of the corporation by _____ self as such officer.
WITNESS my hand, at office, this 7th day of October, 2002.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Notary Public
My Commission Expires:
11-26-05
-----------------------------
21
