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Sample Business ContractsHome: Sample Business Contracts:
PASADENA TOWERS
TOWER II
Pasadena, California
STANDARD FORM OFFICE LEASE
BETWEEN
EOP-PASADENA TOWERS, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY DOING
BUSINESS AS EOP-PASADENA TOWERS, LLC, a Delaware limited liability company
("LANDLORD"),
AND
ACACIA RESEARCH CORPORATION, a California corporation ("TENANT")
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
I. BASIC LEASE INFORMATION; DEFINITIONS. . . . . . . . . . . . . . . 1
II. LEASE GRANT . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION. . . . . . . . . . . . 5
IV. RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
V. USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
VI. SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . 15
VII. SERVICES TO BE FURNISHED BY LANDLORD. . . . . . . . . . . . . . . 15
VIII. LEASEHOLD IMPROVEMENTS. . . . . . . . . . . . . . . . . . . . . . 17
IX. GRAPHICS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
X. REPAIRS AND ALTERATIONS . . . . . . . . . . . . . . . . . . . . . 17
XI. USE OF ELECTRICAL SERVICES BY TENANT. . . . . . . . . . . . . . . 19
XII. ENTRY BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . 19
XIII. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . 20
XIV. LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
XV. INDEMNITY AND WAIVER OF CLAIMS. . . . . . . . . . . . . . . . . . 23
XVI. TENANT'S INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . 24
XVII. SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
XVIII. LANDLORD'S INSURANCE. . . . . . . . . . . . . . . . . . . . . . . 26
XIX. CASUALTY DAMAGE . . . . . . . . . . . . . . . . . . . . . . . . . 26
XX. DEMOLITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
XXI. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
XXII. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . 28
XXIII. REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
XXIV. LIMITATION OF LIABILITY . . . . . . . . . . . . . . . . . . . . . 30
XXV. NO WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
XXVI. EVENT OF BANKRUPTCY . . . . . . . . . . . . . . . . . . . . . . . 31
XXVII. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . 32
XXVIII. RELOCATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
XXIX. HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
XXX. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE. . . . . . . . . 33
XXXI. ATTORNEYS' FEES . . . . . . . . . . . . . . . . . . . . . . . . . 34
XXXII. NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
XXXIII. LANDLORD'S LIEN . . . . . . . . . . . . . . . . . . . . . . . . . 34
XXXIV. EXCEPTED RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . 34
XXXV. SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . . . . . 35
XXXVI. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 35
XXXVII. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 37
</TABLE>
<PAGE>
OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as of the
______ day of April, 1998, by and between EOP-PASADENA TOWERS, L.L.C., a
Delaware limited liability company doing business as EOP-PASADENA TOWERS,
LLC, a Delaware limited liability company ("Landlord") and ACACIA RESEARCH
CORPORATION, a California 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 Seven Hundred Nineteen
Thousand Two Hundred Sixty-Eight and NO/100 Dollars
($719,268.00), payable by Tenant to Landlord in sixty (60)
monthly installments as follows:
1) Sixty (60) equal installments of Eleven Thousand Nine
Hundred Eighty-Seven and 80/100 Dollars ($11,987.80)
each payable on or before the first day of each month
during the period beginning May 1, 1998, and ending
April 30, 2003, 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.
Notwithstanding anything contained herein to the contrary, as long as
Tenant is not in default (after notice and the expiration of any
applicable cure period under this Lease), Tenant shall be entitled to
an abatement of Base Rental in the amount of Eleven Thousand Nine
Hundred Eighty-Seven and 80/100 Dollars ($11,987.80) per month for one
(1) full calendar month of the Lease Term, beginning with the first
(1st) full calendar month (the "Base Rental Abatement Period"). The
total amount of Base Rental abated during the Base Rental Abatement
Period shall equal Eleven Thousand Nine Hundred Eighty-Seven and
80/100 Dollars ($11,987.80) (the "Abated Base Rental"). In the event
Tenant defaults at any time during the Lease Term, and fails to cure
such default within the applicable grace periods provided in the
Lease, all Abated Base Rental shall immediately become due and
payable. The payment by Tenant of the Abated Base Rental in the event
of a default shall not limit or effect any of Landlord's other rights,
pursuant to this Lease or at law or in equity, provided that the
foregoing shall not entitle Landlord to receive a double recovery of
its costs, expenses or damages in any action against Tenant for a
default under this Lease. During the Base Rental Abatement Period,
only Base Rental shall be abated, and all Additional Base Rental and
other costs and charges specified in this Lease shall remain as due
and payable pursuant to the provisions of this Lease.
3. "Building" shall mean the nine (9) story office tower
commonly described as Tower II, consisting of approximately
208,244 rentable square feet located at 55 South Lake
Avenue, Pasadena, Los Angeles County, State of California,
as outlined on Exhibit A-2 attached hereto and incorporated
herein.
4. The "Commencement Date," "Lease Term" and "Termination Date"
shall have the meanings set forth in subsection I.A.4.b.
below:
1) INTENTIONALLY OMITTED.
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2) The "Lease Term" shall mean a period of sixty (60)
months commencing on the later to occur of (1) May 1,
1998, (the "Target Commencement Date"); and (2) the
first (1st) Monday following the date Tenant receives
written notice that all Landlord Work in the Premises
has been substantially completed, as such date is
determined pursuant to Section III.A. hereof (the later
to occur of such dates being defined as the
"Commencement Date"). The "Termination Date" shall,
unless sooner terminated as provided herein, mean the
last day of the Lease Term. Notwithstanding the
foregoing, if the Termination Date, as determined
herein, does not occur on the last day of a calendar
month, Landlord, at its option, may extend the Lease
Term by the number of days necessary to cause the
Termination Date to occur on the last day of the last
calendar month of the Lease Term. Tenant shall pay Base
Rental and Additional Base Rental for such additional
days at the same rate payable for the portion of the
last calendar month immediately preceding such
extension.
Further, Landlord and Tenant acknowledge that the schedule
of Base Rental described in Section I.A.2. above is based on
the assumption that the Lease Term will commence on the
Target Commencement Date. If the Lease Term does not
commence on the Target Commencement Date, the beginning date
set forth in the above schedule with respect to the payment
of any installment(s) of Base Rental shall be appropriately
adjusted on a per diem basis and set forth in the
Commencement Letter to be prepared by Landlord.
5. "Premises" shall mean the area located on the sixth (6th)
floor of the Building, as outlined on Exhibit A attached
hereto and incorporated herein and known as Suite #650.
Landlord and Tenant hereby stipulate and agree that the
"Rentable Area of the Premises" shall mean 5,449 square feet
and the "Rentable Area of the Building" shall mean 208,244
square feet. 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.
6. "Permitted Use" shall mean general office use, provided
however, no space in the parking structure, nor any ground
floor space in Tower I or Tower II shall be used as or
occupied by a retail bank, savings bank, savings and loan,
thrift bank, credit union or other retail banking business
(collectively, a "Retail Banking Business") or any use or
occupancy which is in competition with a Retail Banking
Business.
7. "Security Deposit" shall mean the sum of Thirteen Thousand
One Hundred Eighty-Six and 58/100 Dollars ($13,186.58).
8. "Tenant's Pro Rata Share" shall mean two and six thousand
one hundred sixty-six ten-thousandths percent (2.6166%),
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. "Guarantor(s)" shall mean any party that agrees in writing
to guarantee this Lease.
10. "Notice Addresses" shall mean the following addresses for
Tenant and Landlord, respectively:
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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:
Acacia Research Corporation
12 South Raymond Avenue
Pasadena, California 91105
Attention: Paul Ryan
Landlord:
EOP-Pasadena Towers L.L.C., a
Delaware limited liability company
doing business as EOP-Pasadena
Towers, LLC, a Delaware limited
liability company
c/o Equity Office Properties Trust
Office of the Building
Pasadena Towers
800 East Colorado Boulevard
Suite 100
Pasadena, California 91101
Attention: Building Manager
With a copy to:
EOP-Pasadena Towers L.L.C., a
Delaware limited liability company
doing business as EOP-Pasadena
Towers, LLC, a Delaware limited
liability company
c/o Equity Office Properties Trust
Two North Riverside Plaza
Chicago, Illinois 60606
Attention: General Counsel for Property Operations
Payments of Rent only shall be made payable to the order of:
EQUITY OFFICE PROPERTIES
at the following address:
EOP-Pasadena Towers L.L.C., a
Delaware limited liability company
doing business as EOP-Pasadena
Towers, LLC, a Delaware limited
liability company
c/o Equity Office Properties Trust
Office of the Building
Pasadena Towers
800 East Colorado Boulevard
Suite 100
Pasadena, California 91101
Attention: Building Manager
B. The following are additional definitions of some of the defined
terms used in the Lease.
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<PAGE>
1. "Base Year" shall mean 1998.
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 and
subject to the limitations set forth therein.
3. "Broker" means Cushman & Wakefield of California, Inc. and
Sauve Riegel, Inc.
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, Martin Luther King Day, Presidents' 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. "Exterior Common Areas" shall mean those areas of the
Project and/or the Property which are not located within the
Building and which are provided and maintained for the use
and benefit of Landlord and tenants of the Building and/or
the Project generally and the employees, invitees and
licensees of Landlord and such tenants, including, without
limitation, fountains, walkways, escalators, elevators,
stairways, plaza, roads, driveways, sidewalks, and
landscapes.
8. "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.
9. "Maximum Rate" shall mean the greatest per annum rate of
interest permitted from time to time under applicable law.
10. "Normal Business Hours" for the Building shall mean 8:00
A.M. to 6:00 P.M. Mondays through Fridays, and 9:00 A.M. to
1:00 P.M. on Saturdays, exclusive of Holidays.
11. "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.
12. "Property" shall mean the nine (9) story office tower, the
address of which is 800 East Colorado Boulevard ("Tower I"),
the nine (9) story office tower, the address of which is 55
South Lake Avenue ("Tower II"), the parking structure and
ancillary commercial space, and the parcel(s) of land on
which it is located and, at Landlord's discretion, and all
other improvements owned by Landlord and serving the
Building and the tenants thereof, the parcel(s) of land on
which they are located, and some portions of the Exterior
Common Areas.
4
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13. "Project" shall mean the nine (9) story office tower, the
address of which is 800 East Colorado Boulevard ("Tower I"),
the nine (9) story office tower, the address of which is 55
South Lake Avenue ("Tower II"), the parking structure and
ancillary commercial space, the Exterior Common Areas, and
the two (2) story office building commonly known as the Home
Savings of America Building. Landlord does not own the Home
Savings of America Building.
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, exterior Common Areas and
parking.
III. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION.
A. The Lease Term shall not commence until the later to occur of the
Target Commencement Date and the date that Landlord has
substantially completed the Landlord Work; provided, however,
that if Landlord shall be delayed in substantially completing the
Landlord Work as a result of the occurrence of any of the
following (a "Delay"):
1. Tenant's failure to furnish information in accordance with
the Work Letter agreement or to respond to any request by
Landlord for any approval or information within any time
period prescribed, or if no time period is prescribed, then
within two (2) Business Days of a written request; or
2. Tenant's insistence on materials, finishes or installations
that have long lead times after having first been informed
by Landlord that such materials, finishes or installations
will cause a Delay; or
3. Changes in any plans and specifications requested by Tenant;
or
4. The performance or nonperformance by a person or entity
employed by Tenant in the completion of any work in the
Premises (all such work and such persons or entities being
subject to the prior approval of Landlord); or
5. Any request by Tenant that Landlord delay the completion of
any of the Landlord Work; or
6. Any breach or default by Tenant in the performance of
Tenant's obligations under this Lease (after notice and the
expiration of any applicable cure period under this Lease);
or
7. Any delay resulting from Tenant's having taken possession of
the Premises for any reason prior to substantial completion
of the Landlord Work; or
8. Any other delay actually chargeable to Tenant, its agents,
employees or independent contractors;
then, for purposes of determining the Commencement Date, the date of
substantial completion shall be deemed to be the day that said
Landlord Work would have been substantially completed absent any such
Delay(s). Landlord shall use reasonable efforts to notify Tenant of
any circumstances of which Landlord is aware that have caused or may
cause a Delay, so that Tenant may take whatever action is appropriate
to minimize or prevent such Delay. Notwithstanding the foregoing,
Tenant shall only be responsible for Delays to the extent that they
actually prevent Landlord from substantially completing the Landlord
Work by the Target Commencement Date. Accordingly, the number of
5
<PAGE>
days of Delay shall in no event exceed the actual number of days
between the Target Commencement Date and the date of substantial
completion of Landlord Work. The Landlord Work shall be deemed to
be substantially completed on the date that Landlord's architect
reasonably determines that all Landlord's Work has been performed
(or would have been performed absent any Delays), other than any
details of construction, mechanical adjustment or any other
matter, the noncompletion of which does not materially interfere
with Tenant's use of the Premises. The adjustment of the
Commencement Date and, accordingly, the postponement of Tenant's
obligation to pay Rent shall be Tenant's sole remedy and shall
constitute full settlement of all claims that Tenant might
otherwise have against Landlord by reason of the Premises not
being ready for occupancy by Tenant on the Target Commencement
Date. Promptly after the determination of the Commencement Date,
Landlord and Tenant shall enter into a letter agreement (the
"Commencement Letter") on the form attached hereto as Exhibit C
setting forth the Commencement Date, the Termination Date and any
other dates that are affected by the adjustment of the
Commencement Date. Tenant, within five (5) days after receipt
thereof from Landlord, shall execute the Commencement Letter and
return the same to Landlord. Notwithstandingthe foregoing, if
there have been no Delays and the Commencement Date does not occur
within six (6) months of the projected substantial completion of
Landlord Work (the "Outside Completion Date"), Tenant, as its sole
remedy, may terminate this Lease by giving Landlord written notice
of termination on or before the earlier to occur of: (i) five (5)
Business Days after the Outside Completion Date; and (ii) the
Commencement Date. In such event, this Lease shall be deemed null
and void and of no further force and effect and Landlord shall
promptly refund any Prepaid Rental and Security Deposit previously
advanced by Tenant under this Lease and, so long as Tenant has not
previously defaulted under any of its obligations under the Work
Letter, the parties hereto shall have no further responsibilities
or obligations to each other with respect to this Lease. Landlord
and Tenant acknowledge and agree that: (i) the determination of
the Commencement Date shall take into consideration the affect of
any Delays by Tenant; and (ii) the Outside Completion Date shall
be postponed by the number of days the Commencement Date is
delayed due to events of Force Majeure. Notwithstanding anything
herein to the contrary, if Landlord determines that it will be
unable to cause the Commencement Date to occur by the Outside
Completion Date, Landlord shall have the right to immediately
cease its performance of the Landlord Work and provide Tenant with
written notice (the "Outside Extension Notice") of such inability,
which Outside Extension Notice shall set forth the date on which
Landlord reasonably believes that the Commencement Date will
occur. Upon receipt of the Outside Extension Notice, Tenant shall
have the right to terminate this Lease by providing written notice
of termination to Landlord within five (5) Business Days after the
date of the Outside Extension Notice. In the event that Tenant
does not terminate this Lease within such five (5) Business Day
period, the Outside Completion Date shall automatically be amended
to be the dte set forth in Landlord's Outside Extension Notice.
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. Tenant's
acceptance of the Premises shall be subject to Landlord's
obligation to correct portions of the Landlord Work as set forth
on a construction punch list prepared by Landlord and Tenant in
accordance with the terms hereof. Within fifteen (15) days after
the substantial completion of the Landlord Work, Landlord and
Tenant shall together conduct an inspection of the Premises and
prepare a "punch list" setting forth any portions of the Landlord
Work that are not in conformity with the Landlord Work as
required by the terms of this Lease. Notwithstanding the
foregoing, at the request of Landlord, such construction punch
list shall be mutually prepared by Landlord and Tenant prior to
the date on which Tenant first begins to move its furniture,
equipment or other personal property into the Premises.
Landlord, as part of the Landlord Work, shall use good faith
efforts to correct all such items within a reasonable time
following the completion of the punch list.
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C. [INTENTIONALLY OMITTED]
D. If Tenant takes possession of the Premises prior to the
Commencement Date for the conduct of business in the normal
course, such possession shall be subject to all the terms and
conditions of the Lease and Tenant shall pay Base Rental and
Additional Base Rental to Landlord for each day of occupancy
prior to the Commencement Date. Notwithstanding the foregoing,
Tenant may, so long as Tenant notifies the appropriate Building
personnel, take possession of the Premises on the weekend
(Saturday and Sunday) prior to the Commencement Date for the sole
purpose of installing furniture, equipment or other personal
property of Tenant. Such possession shall be subject to all of
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 aforesaid weekend during which Tenant performs
such move-in. 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.
E. Notwithstanding the foregoing, if there have been no Delays and
the Commencement Date does not occur by the date that is nine (9)
months following the completion of the Plans (defined in the Work
Letter) and the procurement of all permits necessary for the
commencement of Landlord's Work (the "Outside Completion Date"),
Tenant, as its sole remedy, may terminate this Lease by giving
Landlord written notice of termination on or before the earlier
to occur of: (i) five (5) Business Days after the Outside
Completion Date and (ii) the "Commencement Date". In such event,
this Lease shall be deemed null and void and of no further force
and effect and Landlord shall promptly refund any Prepaid Rental
and Security Deposit previously advanced by Tenant under this
Lease and, so long as Tenant has not previously defaulted under
any of its obligations under the Work Letter, the parties hereto
shall have no further responsibilities or obligations to each
other with respect to this Lease. Landlord and Tenant
acknowledge and agree that (i) the determination of the
Commencement Date shall take into consideration the effect of any
Delays by Tenant; and (ii) the Outside Completion Date shall be
postponed by the number of days the Commencement Date is delayed
due to events of Force Majeure. Notwithstanding anything herein
to the contrary, if Landlord determines that it will be unable to
cause the Commencement Date to occur by the Outside Completion
Date, the Landlord shall have the right to immediately cease its
performance of the Landlord Work and provide Tenant with written
notice (the "Outside Extension Notice") of such inability, which
Outside Extension Notice shall set forth the date on which
Landlord reasonably believes that the Commencement Date will
occur. Upon receipt of the Outside Extension Notice, Tenant
shall have the right to terminate this Lease by providing written
notice of termination to Landlord within five (5) Business Days
after the date of the Outside Extension Notice. In the event
that Tenant does not terinate this Lease within such five (5)
Business Day period, the Outside Completion Date shall
automatically be amended to be the date set forth in Landlord's
Outside Extension Notice.
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 the sum of (1) Tenant's Pro Rata Share of the
amount, if any, by which Taxes (hereinafter defined) for the
applicable calendar year exceed Taxes for the Base Year plus (2)
Tenant's Pro Rata Share of the amount, if any, by which Expenses
(hereinafter defined) for the applicable calendar year exceed
Expenses for the Base Year. For purposes hereof, "Expenses" shall
mean all Basic Costs with the
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exception of Taxes. Tenant's Pro Rata Share of increases in
Taxes and Tenant's Pro Rata Share of increases in Expenses
shall be computed separate and independent of each other
prior to being added together to determine the "Excess." In
the event that Taxes and/or Expenses, as the case may be, in
any calendar year decrease below the amount of Taxes or
Expenses for the Base Year, Tenant's Pro Rata Share of Taxes
and/or Expenses, as the case may be, for such calendar year
shall be deemed to be $0, it being understood that Tenant
shall not be entitled to any credit or offset if Taxes and/or
Expenses decrease below the corresponding amount for the Base
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 the Excess 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 the Excess. Landlord shall have the right from
time to time during any such calendar year to revise the
estimate of Basic Costs and the Excess 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 and the
Excess 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 and the Excess 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 Landlord for any underpayment
within ten (10) days after demand. Any overpayment equal to
or less than one (1) month's installment of Base Rental plus
Additional Base Rental shall, at Landlord's option, be
refunded to Tenant or credited against the installments of
Base Rental and Additional Base Rental due for the month(s)
immediately following the furnishing of such estimate. In
the event of any overpayment in excess of the equivalent of
one (1) month's installment of Base Rental plus Additional
Base Rental, the excess shall, at Tenant's option, be
refunded to Tenant or credited against the installment(s) of
Base Rental and 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 and the actual Excess for the previous
calendar year. Landlord shall use reasonable efforts to furnish the
statement of actual Basic Costs on or before June 1 of the calendar
year immediately following the calendar year to which the statement
applies. If the estimated Excess actually paid by Tenant for the prior
year is in excess of Tenant's actual Pro Rata Share of the Excess for
such prior year, then Landlord shall refund to Tenant any overpayment
in excess of the equivalent of one (1) month's installment of Base
Rental plus Additional Base Rental and apply the one (1) month's
equivalent against Base Rental and Additional Base Rental due or to
become due hereunder (or, at Tenant's option, Landlord shall apply the
entirety of such overpayment against Base Rental and 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.
B. Basic Costs shall mean the sum of (y) all direct and indirect
costs and expenses paid or incurred in each calendar year in
connection with operating, maintaining, repairing, managing and
owning the Premises, the Building and the Property,
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inclusive of the Building Common Areas, and (z) the Building's
allocable share of direct and indirect costs of operating and
maintaining the Exterior Common Areas of the Project, and all
costs, fees or other amounts payable by Landlord which are the
responsibility of Landlord and other owners of the Project
pursuant to the Declaration of Operating and Reciprocal Easement
Agreement, 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, the Property and the Project, 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 Property, accounting services,
legal fees not attributable to leasing and collection
activity, and all other administrative costs relating to the
Building, the Property and the Project. 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, the Property and the Project.
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, the Property,
or the Project 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. Notwithstanding the foregoing, except to the
extent set forth in Subsection IV.B.11. below, it is hereby
agreed that any costs in connection with replacements that
would properly be considered to be capital improvements
under generally accepted accounting principles shall be
excluded from Basic Costs.
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
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of lights and ballasts and the purchase and installation
of sensors and other energy saving equipment amortized
over a reasonably estimated payback period; 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, the cost of electricity to individual tenant
spaces in the Building shall be deducted from Electrical
Costs and the electricity component of Tenant's Basic
Costs shall not be subject to gross-up provisions (if
any) stated elsewhere in this Lease.
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 Project, the Property,
the Building or its contents or on the operation and use
thereof (except as they 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, the Property, or the Project,
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 in the greatest number of
installments available for such special assessment; 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 of the Property and/or the Project,
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 and landscaping.
10. Cost of all other repairs, replacements and general
maintenance of the Project, the Property and the Building
neither specified above nor directly billed to tenants.
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11. The amortized cost of capital improvements made to the
Project, 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
Project, the Property or the Building; or (b) required to
comply with any newly enacted laws, rules or regulations of
any governmental authority or any changes in the existing
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. Notwithstanding
the foregoing, Basic Costs shall not include the cost of any
capital improvements that are required to correct work that,
when initially performed by Landlord, was performed in
violation of the then existing laws, rules or regulations
governing the performance of such work.
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. Basic Costs shall also exclude:
1) Repairs or other work occasioned by: (i) fire,
windstorm, or other casualty of the type which Landlord
has insured (to the extent that Landlord has received
insurance proceeds and provided that the amount of any
deductible paid by Landlord shall be included in Basic
Costs); or (ii) the exercise of the right of eminent
domain (to the extent that such repairs or other work
are covered by the proceeds of the award, if any,
received by Landlord);
2) Leasing commissions, brochures, marketing supplies,
attorney's fees, costs, and disbursements and other
expenses incurred in connection with negotiation of
leases with prospective tenants;
3) Rental concessions granted to specific tenants and
expenses incurred in renovating or otherwise improving
or decorating, painting, or redecorating space for
specific tenants, other than ordinary repairs and
maintenance provided or available to tenants in
general;
4) Landlord's costs of electricity and other services sold
or provided to tenants in the Building and for which
Landlord is entitled to be reimbursed by such tenants
as a separate additional charge or rental over and
above the base rental or additional base rental payable
under the lease with such tenant;
5) Overhead and profit increment paid to subsidiaries or
other affiliates of Landlord for services on or to the
Property, Building and/or Premises to the extent only
that the costs of such services exceed the competitive
cost for such services rendered by persons or entities
of similar skill, competence and experience.
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6) The cost of services that are not available to Tenant
under this Lease or for which Tenant reimburses
Landlord as a separate charge (other than through Basic
Costs);
7) Advertising and promotional expenditures;
8) Costs incurred in connection with the sale, financing,
refinancing, mortgaging or sale of the Building or
Property, including brokerage commissions, attorneys'
and accountants' fees, closing costs, title insurance
premiums, transfer taxes and interest charges;
9) Costs, fines, interest, penalties, legal fees or costs
of litigation incurred due to the late payments of
taxes, utility bills and other costs incurred by
Landlord's failure to make such payments when due
unless such failure is due to Landlord's good faith and
reasonable efforts in contesting the amount of such
payments;
10) Costs incurred by Landlord for trustee's fees,
partnership organizational expenses and accounting fees
to the extent relating to Landlord's general corporate
overhead and general administrative expenses;
11) Any penalties or liquidated damages that Landlord pays
to Tenant under this Lease or to any other tenants in
the Building under their respective leases;
12) Attorney's fees, costs and disbursements and other
expenses incurred in connection with negotiations or
disputes with tenants or other occupants of the
Building or with prospective tenants (other than
attorney's fees, costs and disbursements and other
expenses incurred by Landlord in seeking to enforce
Building rules and regulations).
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.
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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 one hundred twenty (120) 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 a 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 sixty (60) 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 sixty (60) day
period or fails to provide Landlord with a Review Notice within
the one hundred twenty (120) 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 shal provide Tenant with a credit
against future Additional Base Rental in the amount of any
overpayment by Tenant. In addition, if Landlord and Tenant
determine that Basic Costs for the Building were less than stated
by more than five percent (5%), Landlord, within thirty (30) days
after its receipt of paid invoices therefor from Tenant, shall
reimburse Tenant for any reasonable amounts paid by Tenant to
third parties in connection with such review 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; provided, however, that such
payment may be deemed to be a "payment under protest."
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
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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 satisfacion, 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 within three (3) days after 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 more than two (2) times in
any twelve (12) month period during the Lease Term, a service fee
equal to five percent (5%) of such unpaid amount will be due and
payable immediately by Tenant to Landlord.
F. In lieu of requiring Tenant to pay Rent by good and sufficient
check in the manner described in Section IV.D. above, Landlord
shall have the right to require Tenant to pay Rent by means of an
automated debit system (the "Automatic Debit System") whereby any
or all payments of Rent shall be debited from Tenant's account in
a bank or financial institution designated by Tenant and credited
to Landlord's account in a bank or financial institution
designated by Landlord. In the event Landlord elects to have
Tenant pay all or any portion of Rent by means of the Automatic
Debit System, Tenant, within thirty (30) days after written
request by Landlord, shall execute and deliver to Landlord any
authorizations, certificates or other documentation as may be
required to establish and give effect to the Automatic Debit
System. If Landlord elects to have less than all items of Rent
paid by the Automatic Debit System, Landlord shall advise Tenant
in writing as to those items of Rent that will be paid by the
Automatic Debit System (e.g. Base Rental only or Base Rental and
Tenant's Pro Rata Share of Basic Costs only). Either party shall
have the right to change its bank or financial institution from
time to time, provided that Tenant, no less than thirty (30) days
prior to the effective date of any such change, shall provide
Landlord with written notice of such change and any and all
authorizations, certificates or other documentation as may be
required to establish and give effect to the Automatic Debit
System at Tenant's new bank or financial institution. Tenant
shall promptly pay all service fees and other charges imposed
upon Landlord or Tenant in connection with the Automatic Debit
System, including, without limitation, any charges resulting from
insufficient funds in Tenant's bank account. In the event that
any Rent is not paid on time as a result of insufficient funds in
Tenant's account, Tenant shall be liable for any interest and/or
service fee in accordance with Section IV.E. above. Tenant
shall remain liable to Lndlord for all payments of Rent due
hereunder regardless of whether Tenant's account is incorrectly
debited in any given month, it being agreed that a debit of less
than the full amount of Rent due shall not be construed as a
waiver by Landlord of its right to receive any unpaid balance of
Rent. Notwithstanding the foregoing, Landlord shall not be
entitled to require Tenant to pay Rent through the Automatic
Debit System unless Tenant, on more than two (2) occasions during
the Lease Term, has failed to pay any installment of Rent on or
before the date required herein.
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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 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. 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 return 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:
1. 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
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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.
2. 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 may be
provided by telephonic activation of the Building's HVAC
system and/or shall be furnished 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 (as of the date of this Lease, Landlord's
cost for such service is $60.00 per hour (or fractional
hour), which charge may be subject to change from time to
time to reflect changes in Landlord's direct or indirect
costs of providing such service).
3. 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.
4. Janitor service on Business Days in accordance with the
cleaning specifications attached hereto as Exhibit G, or
such other reasonably comparable specifications designated,
from time to time, by Landlord; 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.
5. Passenger elevator service in common with other tenants of
the Building.
6. 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.
7. 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 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.
B. 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.
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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 written 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, ordinary wear, tear and casualty excepted.
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. Notwithstanding the
foregoing, Tenant may request in writing at the time it submits its plans and
specifications for an alteration, addition or improvement, that Landlord
advise Tenant whether Landlord will require Tenant to remove, at the
termination of this Lease or Tenant's right to possession hereunder, such
alteration, addition or improvement, or any particular portion thereof
andLandlord shall advise Tenant within twenty (20) days after receipt of
Tenant's request as to whether Landlord will require removal; provided,
however, Landlord shall have the right to require Tenant to remove any vault,
stairway, raised floor or structural alterations installed in the Premises,
regardless of whether Landlord timely notified Tenant that it would require
such removal.
IX. 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.
Landlord shall not permit signage identifying any Retail Banking Business or
competitor of a Retail Banking Business to be located above the ground floor
level of the improvements on or about, or visible from, the exterior of the
Building, the Property or the Project.
X. REPAIRS AND ALTERATIONS.
A. 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
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repairs to the Premises within ten (10) days after notice
from Landlord (provided that no prior notice shall be
required in the event of an emergency), 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 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.
B. 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.
Notwithstanding the foregoing, Landlord's consent shall not be
required for any alteration, addition or improvement that
satisfies all of the following criteria: 1) costs less than Ten
Thousand and No/100 Dollars ($10,000.00); 2) is of a cosmetic
nature such as painting, wallpapering, hanging pictures and
installing carpeting; 3) is not visible from the exterior of the
Premises or Building; and 4) will not affect the systems or
structure of the Building and does not require work to be
performed inside the walls or above the ceiling of the Premises;
provided that even if consent is not required, Tenant shall still
comply with all the other provisions of this Section X.B. 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 subcontractor's 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
partial, or full and final waivers of lien, as applicable, in
recordable form, 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 ten percent (10%) 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.
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XI. USE OF ELECTRICAL SERVICES BY TENANT.
A. All electricity used by Tenant in the Premises shall be paid for
by Tenant through inclusion in Basic Costs (except as provided in
Section XI.B. below with respect to excess usage). It is
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 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.
B. 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. Use of electricity
after Normal Business Hours is charged to Tenant, as of the date
of this Lease, at $10.00 per hour (or fractional hour) of use;
such charge is subject to change from time to time to reflect
changes in Landlord's direct or indirect costs of providing such
service. 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.
C. 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
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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. Notwithstanding the
foregoing, except in emergency situations as determined by Landlord, Landlord
shall exercise reasonable efforts: (1) not to unreasonably interfere with the
conduct of the business of Tenant on the Premises; and (2) if entry during
Normal Business Hours would unreasonably interfere with Tenant's business, to
affect such entry during hours other than Normal Business Hours. Landlord,
however, shall not be required to perform such entry after Normal Business
Hours if Landlord's entry is necessitated by the acts or omissions of Tenant
or the performance of Landlord's obligations hereunder and, by performing
work during non-business hours, Landlord would be required to have building
personnel remain in the Building after normal working hours or to pay its
contractors overtime.
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 or Property; (5) Tenant is in default (after notice and
the expiration of any applicable cure period under this Lease);
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. Notwithstanding anything to the
contrary contained herein or in Section XIII.D., Tenant mayassign
its entire interest under this Lease or sublet the Premises to a
wholly owned corporation, partnership or other legal entity or
controlled subsidiary or parent of Tenant or to any successor to
Tenant by purchase, merger, consolidation or reorganization
(hereinafter, collectively, referred to as "Permitted Transfer")
without the consent of Landlord, provided: (i) Tenant is not in
default under this Lease; (ii) if such proposed transferee is a
successor to Tenant by purchase, merger, consolidation or
reorganization, the continuing or surviving entity shall own all
or substantially all of the assets of Tenant and shall have a net
worth which is at least equal to the greater of Tenant's net
worth at the date of this Lease or Tenant's net worth at the date
of the Transfer; (iii) such proposed transferee operates the
business in the Premises for the Permitted Use and no other
purpose; and (iv) in no event shall any Transfer release or
relieve Tenant from any of its obligations under this Lease.
Additionally, Tenant may, without the consent of Landlord and as
a Permitted Transfer, sublet up to five (5) individual offices
within the Premises to subtenant(s) or occupant(s) within the
Premises in which Tenant has a substantial ownership interest
(but not
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necessarily a controlling interest), but in no event shall
the aggregate of area covered by such transactions exceed
1,000 rentable square feet of the Premises, and provided only
that (w) Tenant does not separately demise such space and the
subtenants in each of such individual offices shall utilize,
together with all other such subtenants, one (1) common entry
way to the Premises (as well as possibly utilizing certain
shared central services, such as reception, photocopying and
the like); (x) the proposed transferee operates the business
in the Premises for the Permitted Use, not in violation of
any of the terms and conditions of this Lease or any of the
Rules and Regulations of the Building, and for no other
purpose; (y) in no event shall any such Transfer release or
relieve Tenant from any of its obligations under this Lease;
and (z) the proposed subtenant's business is professional and
suitable for the Building considering the business of other
tenants and the Building's prestige (a transaction
contemplated by this sentence being referred to herein as a
"Permitted Office Transfer"). A violation of any of the
foregoing with respect to any purported Permitted Office
Transfer to any Transfer shall be considered a default by
Tenant hereunder. Tenant shall give Landlord written notice
at least thirty (30) days prior to the effective date of any
Permitted Transfer or Permitted Office Transfer; in the case
of any Permitted Office Transfer, such notice shall specify
in reasonable detail the terms and conditions of such
transfer, which may not include any consideration to Tenant
which would be subject to the provisions of Section XIV.C
below or a term in excess of nine (9) months. In addition,
Tenant hereby agrees that, to the fullest extent permissible
under applicable law, Tenant will indemnify Landlord for the
acts and omissions of any Permitted Office Transfer
subtenant, its agents, employees, contractors, customers and
invitees in accordance with the terms and conditions of
Article XV of this Lease and to cause any insurance to the
maintained by Tenant under this Lease to be extended to cover
the acts and omissions of any Permitted Office Transfer
subtenant, its agents, employees, contractors, customers and
invitees) while in the Building. As used herein: (a)
"parent" shall mean a company which owns a majority of
Tenant's voting equity; (b) "controlled" or "subsidiary"
shall mean a entity wholly owned by Tenant or at least
fifty-one percent (51%) of whose voting equity is owned by
Tenant; and (c) "affiliate" shall mean an entity controlled,
controlling or under common control with Tenant.
Notwithstanding the foregoing, sale of the shares of equity
of any affiliate or subsidiary to which this Lease has been
assigned or transferred other than to another parent,
subsidiary or affiliate of the original Tenant named
hereunder shall be deemed to be an assignment requiring the
consent of Landlord hereunder. Landlord agrees, following
Tenant's written request therefore, to provide directory
strips identifying Permitted Office Transfer occupants in the
Building's lobby directory; provided, however, that the
aggregate number of directory strips identifying Tenant and
Tenant's employees as well Tenant's Permitted Office Transfer
occupants shall not at any time exceed the aggregate number
of lobby directory strips allocable to Tenant and the
Premises pursuant to the terms and provisions of this Lease
and Landlord's then-current policies for determining such
allocation.
B. If Tenant requests Landlord's consent to a Transfer, Tenant,
together with such requests 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
thirty (30) 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)
if the Transfer is an assignment or a sublease of all or
substantially all the Premises for any portion of the Lease Term
or a sublease of any portion of the Premises for all or
substantially all of the remaining Lease Term, negotiate directly
with the proposed transferee and in the event Landlord is able to
reach an agreement with such proposed transferee, terminate this
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Lease (in part or in whole, as appropriate) upon thirty (30)
days' notice; or (3) if the Transfer is an assignment or a
sublease of all or substantially all the Premises for any portion
of the Lease Term or a sublease of any portion of the Premises
for all or substantially all of the remaining Lease Term, cancel
and terminate this Lease, in whole or in part as appropriate,
upon thirty (30) days' notice. Notwithstanding the foregoing,
Landlord shall not have the right to terminate pursuant to 2 or 3
above if the proposed transferee is a wholly owned corporation or
controlled subsidiary or affiliate of Tenant or a successor to
Tenant by purchase, merger, consolidation or reorganization. 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). Notwithstanding the foregoing,
provided that Tenant does not request any changes to this Lease
or Landlord's standard form of consent in connection with the
proposed transfer, such costs and expenses shall not exceed Seven
Hundred Fifty Dollars ($750.00).
C. Fifty percent (50%) of 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 fifty percent (50%) of
any such proceeds to Landlord. In addition to the Rent hereunder,
Tenant hereby covenants and agrees to pay to Landlord fifty
percent (50%) of 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
determining excess rent in connection with a Transfer, Tenant may
(on an amortized basis, as described below), deduct the following
expenditures resulting from such a Transfer: (i) reasonable
brokerage fees, (ii) reasonable attorneys' fees, and (iii)
construction costs incurred in improving the space that is the
subject of the Transfer (as opposed to any upgrades or
improvements to remainder areas of the Premises in which Tenant
will retain occupancy); such costs shall be amortized on a
straight-line basis over the remainder of the Lease Term (or,
with respect to a sublease for less than the remainder of the
Lease Term, the remainder of the term of the Sublease), and
Tenant shall be entitled to offset against Tenant's monthly
payment of Transfer Consideration to Landlord payable hereunder
an amount equal to the monthly amortization of such costs. 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 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.
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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 ten (10) 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. Except to the extent such losses, liabilities, obligations,
damages, penalties, claims, costs, charges, and expenses result
from the negligence of Landlord and/or its agents, employees or
contractors, 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.
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
Buildi |
