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Sample Business ContractsHome: Sample Business Contracts:
LEASE
BETWEEN
TRIPLE T BRENTWOOD LLC
AS LANDLORD
AND
PRIVATE BUSINESS, INC.
AS TENANT
<PAGE> 2
BASIC LEASE INFORMATION
LEASE DATE:
LANDLORD: Triple T Brentwood LLC
a Delaware limited liability company
ADDRESS OF
LANDLORD
FOR NOTICES
(SECTION 27): Triple T Brentwood LLC
c/o The Travelers Insurance Company
215 Lennon Lane, Suite 201
Walnut Creek, California 94598
Attention: Guy R. McComb,
Vice President
and
The Travelers Insurance Company
One Tower Square
Hartford, Connecticut 06183-2030
Attention: Travelers Investment Group, 9PB
Regional Counsel
and
Loeb & Loeb LLP
1000 Wilshire Boulevard, Suite 1800
Los Angeles, California 90017
Attention: Susan V. Noonoo, Esq.
TENANT: Private Business, Inc.,
a Tennessee corporation
ADDRESS OF TENANT
FOR NOTICES
(SECTION 27):
TYPE/NATURE OF TENANT'S BUSINESS: General Business
PERMITTED USE OF PREMISES (SECTION 5): General office use
PREMISES (SECTION 1): Approximately 54,643 rentable square feet consisting of
the entire 4th floor and 3rd floors as shown on Exhibit "A"
PARKING RIGHTS (SECTION 1): 4.96 surface parking spaces per 1,000 usable square
feet in the area designated on Exhibit "B"
LEASE TERM (SECTION 2): 10 years
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BASE RENT (SECTION 3): Years 1 through 4: $18.85 per rentable square foot
Years 5 through 8: $19.85 per rentable square foot
Years 9 and 10: $20.85 per rentable square foot
PREPAID RENT (SECTION 3): N/A
SECURITY DEPOSIT (SECTION 3): $1,000,000
TENANT'S PROPORTIONATE SHARE OF INCREASES IN DIRECT COSTS (SECTION 4): rentable
area of Premises divided by rentable area of Building: 52.13%
LANDLORD'S BROKER (SECTION 35): The Trammell Crow Company
TENANT'S BROKER (SECTION 35): The Trammell Crow Company
GUARANTOR (SECTION 38.19): N/A
RENTABLE AREA OF BUILDING: 104,825 rentable square feet
ADDITIONAL PROVISIONS: See Addendum attached hereto and hereby made a part
hereof
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<PAGE> 4
LEASE
THIS LEASE ("Lease") is entered into as of the date specified in the
Basic Lease Information (as defined in Section 1 below) between Triple T
Brentwood LLC, a Delaware limited liability company ("Landlord"), and the tenant
specified in the Basic Lease Information ("Tenant"), upon the following terms
and conditions:
1. PREMISES; COMMON AREAS; PARKING; BASIC LEASE INFORMATION.
1.1 Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord, upon the terms and conditions set forth in this Lease,
those certain premises (the "Premises") described in the Basic Lease
Information and designated in Exhibit "A" attached hereto and hereby made a
part hereof. The Premises are or shall be situated in a four (4) story office
building (the "Building") located at Overlook Park, Brentwood, Tennessee. The
real property upon which the Building is located consists of (a) approximately
8.06 acres, more or less, designated as Lots 13, 10-C, 10E and 10-F on the
Preliminary and Final Plat Resubdivision of Lots 10-A, 10-B and 10-D on the
Final Plat of the Resubdivision of Lots 1, 3, 6, 7, 9 and 10 of Overlook Park,
as of record in Plat Book 23, page 98, Register's Office for Williamson County,
Tennessee (the "Official Records") and (b) that certain adjacent tract of land
consisting of approximately 11,000 square feet, more or less, and being shown
on the tax rolls for Williamson County, Tennessee as Map 11-F, Group "A,",
Parcel A, (collectively, the "Property"). The Property, together with the
Building and all related improvements, facilities and appurtenances, shall
hereinafter be collectively referred to as the "Project." The terms and
conditions of this Lease shall include, without limitation, the Basic Lease
Information; provided, however, as to any inconsistence between the terms of
this Lease and the terms of the Basic Lease Information, the terms of this
Lease shall control.
As used in the Basic Lease Information and elsewhere in this Lease, the
term "rentable square feet" and similar variations thereof shall have the
meaning set forth below:
1.1.1 In the case of a single tenancy floor, all floor
areas measured from the predominate feature of the Building (i.e., the inside
surface of the outer glass or finished column walls of the Building) to the
inside surface of the opposite wall excluding only the areas within the outside
walls used for elevator, mechanical rooms, Building stairs, elevators shafts,
flues, vents and other vertical ducts, plus an allocation of the square footage
of the Building's Common Areas as defined in Section 1.2 below.
1.1.2 In the case of a multi-tenant floor, all floor areas
measured from the predominate feature of the Building (i.e., the inside surface
of the outer glass or finished column walls of the tenant occupied portion of
the floor) measured to the mid point of the walls separating the areas leased by
or held for lease to other tenants or from floor areas devoted to corridors,
elevator foyers, rest room mechanical rooms, vending areas or other similar
facilities for the use of all tenants on a particular floor, but including a
proportionate part of the foregoing floor specific common areas located on such
floor, plus an allocation of the square footage of the Common Areas as defined
in Section 1.2 below.
1.1.3 The rentable square footage in the Premises
calculated on the basis of the foregoing definitions is estimated to be 54,643
as shown on the Basic Lease Information. Landlord and Tenant agree that the
actual rentable square footage shall be determined by Landlord's architect on
the basis of the final Plans and Specifications for the Premises as
constructed. If the actual rentable square footage in the Premises differs from
the estimated rentable square footage as set forth above, then the rentable
square footage in the Premises shall be changed to conform to the actual
rentable square footage in the Premises. Upon Substantial Completion (as
defined in Section 2.1 below), Landlord and Tenant both agree to execute a
certificate evidencing the exact number of rentable square feet contained in
the Premises when such figure is accurate determinable.
1.1.4 In the event the estimated rentable square footage is
changed to conform to actual square footage in accordance with the foregoing
paragraph, Base Rent, as defined in Section 3, shall be adjusted to reflect the
actual rentable square feet in the Premises and all such determinations shall be
governed by BOMA standards to the extent inconsistent with the
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preceding requirements and the allocation of square footage for common areas for
both single tenant floors and multi-tenant floors, as applicable from time to
time, all in accordance with BOMA's standards.
Each reference in this Lease to any of the Basic Lease
Information shall be construed to incorporate, in addition to the Basic Lease
Information, the terms and conditions set forth in the particular Lease section
in which such reference is made.
1.2 The term "common areas" as used in this Lease shall
mean all areas and facilities around the Premises and within the exterior
boundaries of the Property which are provided and designated from time to time
by Landlord for the general use and convenience of Tenant and other tenants of
the Project and their respective employees, invitees or other visitors. Common
areas include, without limitation, the lobby area, walkways, parking
facilities, landscaped areas, sidewalks, driveways, service quarters, hallways,
restrooms (if not part of the Premises), stairways, elevators (except elevators
which may be reserved for the exclusive use of one or more other tenants),
walls, fire stairs, telephone and electric closets, aisles, truck docks,
plazas, service areas, lobbies and all other common and service areas of the
Property and Building or any other area of the Project intended for such use.
Floors wholly occupied by Tenant shall not have any facilities which would be
used in common with other tenants, except for fire stairs, shafts and similar
installations. Tenant, its employees and invitees shall have the nonexclusive
right to use the common areas along with others entitled to use same, subject
to Landlord's rights and duties as hereinafter set forth and subject to the
other provisions of this Lease. Without Tenant's consent and without liability
to Tenant, and provided that Landlord uses reasonable efforts to minimize the
duration and extent of any resultant interference with Tenant's use of and
access to the Premises, Landlord may do the following:
1.2.1 Establish and enforce reasonable rules and
regulations concerning the maintenance, management, use and operation of the
common areas;
1.2.2 Close off any of the common areas to whatever extent
required in the reasonable opinion of Landlord and its counsel to prevent a
dedication of any of the common areas or the accrual of any rights by any person
or the public to the common areas; provided, however, that any such closure of
the common areas shall not materially adversely effect Tenant's use of the
Premises;
1.2.3 Close any of the common areas for maintenance,
alteration or improvement purposes areas; provided, however, that any such
closure of the common areas shall not materially adversely effect Tenant's use
of the Premises;
1.2.4 Select, appoint and/or contract with any person for
the purpose of operating and maintaining the common areas; and
1.2.5 Change the size, use, shape or nature of any of the
common areas.
1.3 Tenant shall have the right, so long as this Lease
remains in full force and effect, and subject to applicable rules and
regulations, to use the parking spaces designated on Exhibit "B" in the surface
parking lot which forms a part of the Project (the "Parking Lot"), upon such
terms and conditions as may be specified in the Basic Lease Information.
Landlord and Tenant acknowledge and agree that Exhibit "B" provides for a
minimum of 271 surface parking lot spaces which shall be available to the
Tenant at all times during the initial term of this Lease without charge. Such
minimum number of parking spaces shall be based upon the ratio of parking
spaces per thousand rentable square feet specified in the Basic Lease
Information and subject to increase if and when the Tenant occupies additional
rentable square feet in the Premises (said number of parking spaces as adjusted
from time to time herein the "Minimum Parking Spaces"). No other tenant of the
Building shall be afforded a more generous parking to rentable square footage
ratio than Tenant.
Tenant acknowledges and agrees that its rights to such Minimum
Parking Spaces, as adjusted from time to time, shall not be exclusive but shall
be shared in common with other tenants in the Building and their respective
invitees, visitors , customers and the general public. Except for designation of
a mutually acceptable number of spaces as being reserved for visitors, there
shall not be any spaces specifically reserved for Landlord's exclusive use or
for the
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exclusive use of any other tenant of the Building.
To insure that Tenant's access to the Minimum Parking Spaces
remains available under all circumstances, Landlord acknowledges and agrees
that Landlord may be required, either by Tenant or by other tenants of the
building, to institute a cost-efficient procedure to control access to the
Parking Lot (e.g., gates or other means of ingress and egress control);
provided, however that Landlord shall not be required to install such access
control system until Substantial Completion of the Premises has occurred. The
reasonable cost and expenses of installing and maintaining such access control
system, if installed, shall be included as a part of Direct Costs of operating
the Building. Unless and until an access control system is installed, Landlord
shall not be permitted to charge Tenant or its invitees, visitors or customers
for use and access to the Minimum Parking Spaces or any excess spaces as may
ultimately be or become available after construction of the Building. After
installation of an access control system, Landlord may charge for spaces used
by Tenant in excess of the Minimum Parking Spaces, provided that revenue from
such charges shall be used to defray costs of the access control system thereby
reducing Direct Costs and provided further that such charges shall be borne
equably by all tenants in the Building.
If and to the extent necessary to satisfy Landlord's
obligations under this Section 1.3, Landlord shall have the right to rearrange,
relocate or to close temporarily parking spaces and improvements in the Parking
Lot for thepurpose of maintaining, restoring, repairing, altering and improving
the same, as Landlord in Landlord's reasonable discretion may determine. If
Landlord closes all or any portion of the Parking Lot or relocates Tenant's
parking spaces, Landlord will use its best efforts to provide Tenant with
alternative parking arrangements not less convenient than the arrangements
Tenant previously enjoyed.
2. TERM AND POSSESSION. 2.1 The term of this Lease shall
commence on the date (the "Commencement Date") which is the earlier of (a) the
date on which Landlord achieves Substantial Completion or (b) March 31, 2000,
provided that Landlord has achieved Substantial Completion, or would have
achieved Substantial Completion but for Tenant Delay or Force Majeure. In no
event shall the Commencement Date be prior to February 1, 2000 nor later than
March 31, 2000, subject, however, to delays caused by Force Majeure (as
hereinafter defined) and Tenant Delay (as hereinafter defined).
For purposes of the preceding provisions, the Premises shall
be substantially completed and "Substantial Completion" shall have occurred on
the last to occur of the following: (1) the Landlord's obtaining a temporary or
permanent Certificate Of Use And Occupancy (or equivalent) permitting the full
use and occupancy of the Premises by Tenant as contemplated by Section 5, (2)
building fire alarms, fire sprinklers, smoke detectors, exit lights, life safety
equipment and other building code requirements having been installed and being
operational, (3) the mechanical, electrical and plumbing services serving the
Premises having been installed and in good working order and access to the
Premises is available, (4) the Tenant Improvements (as hereinafter defined)
being substantially completed as evidence by a written certification by the
architect designing such improvements subject, however, to Punch List items (as
hereinafter defined), so as to enable Tenant to move in and install its
furniture, fixtures, equipment and machinery, and (5) the Parking Lot being
accessible and useable by Tenant as set forth in Section 1.3 above. If and to
the extent compliance with the conditions set forth above would have occurred
earlier but for Tenant Delay, then compliance with such conditions shall be
deemed to have occurred on the day on which it would have occurred but for such
Tenant Delay (i.e., Substantial Completion would be accelerated on a day-for-day
basis for each day of Tenant Delay).
For the purposes of the foregoing, the term "Tenant Delay"
shall mean any delay in achieving Substantial Completion as a direct result of
the following: (1) Tenant's failure to furnish any required information,
documents or approvals within specified time periods in accordance with the Work
Agreement to the extent such failure causes delay, (2) any change orders
including any change in the construction documents relative to Tenant
Improvements to the extent such change orders cause delay, or (3) any delay
caused by interference or hindrance by the Tenant's employees or the agents with
the contractor's prosecuting of the Tenant
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Improvements to the extent such interference or hindrance causes delay.
For purposes of the foregoing, the term "Force Majeure" shall
be deemed to refer to strikes, lockouts, labor controversies, fuel shortages,
accidents,acts of God, and/or the elements or any other causes beyond the
reasonable control of Landlord, so long as Landlord has taken reasonable steps
to minimize the effect of such Force Majeure.
In the event the Commencement Date has not occurred by March
31, 2000; subject, however, to delays occasioned by Force Majeure and Tenant
Delay, then Landlord shall reimburse Tenant for all of direct cost, loss, and
expense incurred by Tenant due to such delay as may result from payments of
holdover rent in excess of the applicable base rent. Tenant shall provide to
Landlord an itemized accounting of all such costs and expenses claimed by Tenant
against Landlord, together with such supporting documentation as Landlord may
reasonably require to verify such items. Landlord shall reimburse Tenant for all
such costs and expenses within fifteen (15) business days of receipt of such
accounting. Notwithstanding the foregoing and in addition to such remedy, the
Tenant shall have the absolute right, without any further liability or
obligation to Landlord, by written notice to terminate this Lease in the event
the Commencement Date has not occurred by July 1, 2000, subject, however, to the
effects of Force Majeure and Tenant Delay.
The term of the Lease shall continue for the balance of the
month in which the Commencement Date occurs (if the Commencement Date occurs on
other than the first day of any calendar month) and thereafter for the number of
whole years and months specified in the Basic Lease Information, unless sooner
terminated pursuant to any provision hereof. The parties hereto shall execute a
written statement in the form of Exhibit "C" attached hereto and made a part
hereof setting forth the Commencement Date and the date of expiration of this
Lease promptly after same have been ascertained, but the enforceability of this
Lease shall not be affected should either party fail or refuse to execute such
statement. If permission is given to Tenant, in Landlord's sole discretion, to
enter or occupy the Premises prior to the Commencement Date, such early entrance
or occupancy shall be subject to all the terms of such permission and all the
provisions of this Lease (other than payment of Base Rent or other rental) which
could be reasonably and logically construed as applying thereto.
2.2 Subject to Landlord's completion of the base building
improvements described in Exhibit "D" attached hereto (together with the floor
plans and Building elevations included in Exhibit "D", the "Base Building
Improvements") and the tenant improvements described in the Work Agreement (as
hereinafter defined) so that the Project has reached Substantial Completion,
subject to any remaining Punch List items (as hereinafter defined), Tenant shall
accept the Premises in its "as-is condition".
3. BASE RENT; SECURITY DEPOSIT.
3.1 Tenant shall pay to Landlord as base rent ("Base
Rent") for the Premises, without prior notice or demand, throughout the term of
this Lease, the amount(s) so specified in the Basic Lease Information
applicable to the period(s) specified therein, in advance, in equal monthly
installments, on or before the first day of each and every calendar month
during the term hereof. Base Rent and any other rent due under this Lease for
any period during the term hereof which is for less than one (1) month shall be
a prorated portion of the monthly amount due, based upon a thirty (30) day
month. Rent and all other amounts due to Landlord shall be paid to Landlord,
without deduction, offset or abatement, except as may otherwise be expressly
set forth in this Lease, at Landlord's address as specified in the Basic Lease
Information or to such other firm or at such other place as Landlord may from
time to time designate in writing. Landlord shall have the right to accept all
rent and other payments, whether full or partial, and to negotiate checks in
payment thereof without any waiver of rights, irrespective of any conditions to
the contrary sought to be imposed by Tenant. Rent hereunder shall be deemed
paid to Landlord when received by Landlord, or its designee, at Landlord's
address, or at such other address as Landlord shall have designated.
3.2 Within five (5) business days of the Commencement
Date, Tenant shall pay to Landlord a security deposit in the amount specified
in the Basic Lease Information for the faithful performance of all terms,
covenants and conditions of this Lease. The security deposit shall be in the
form of cash or a letter of credit in the face amount of $1,000,000, which
letter of
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credit shall be in form and substance and issued by a financial institution
satisfactory to Landlord. Provided that no material default specified in Section
19 then exists under this Lease, commencing on the first anniversary of the
Commencement Date and continuing annually on each anniversary date thereafter
throughout the term of this Lease, Tenant's security deposit shall be reduced in
equal proportions over the remaining initial ten (10) year term of the Lease
until such deposit has been released in full. The amount of each such reduction
shall be paid to Tenant by Landlord within five (5) business days of each
anniversary if a security deposit is cash. If Tenant's security deposit is in
the form of a letter of credit, upon Tenant's delivery to Landlord of
replacement letters of credit (in form and substance, and issued by a financial
institution satisfactory to Landlord, in the applicable reduced amounts,
Landlord within five (5) business days of each anniversary shall surrender to
Tenant the letter of credit then being held by Landlord. Notwithstanding the
foregoing, if Tenant's stock is sold to the public pursuant to an "IPO",
commencing on the anniversary of the Commencement Date immediately following the
date of Tenant's IPO and provided that Tenant is not then in material default
hereunder, the remaining balance of Tenant's security deposit shall be
proportionately reduced in equal proportions over a five (5) year term until
such deposit has been fully released.
Landlord's retention of Tenant's security deposit is not
intended as a penalty but as a full and complete liquidated damages to
compensate Landlord for any and all damages suffered by reason of Tenant's
failure to take occupancy of the Premises pursuant the provisions of this Lease.
Landlord shall keep the security deposit in an escrow account,
and Tenant shall be entitled to interest or other earnings on such security
deposit. Such interest bearing account shall be opened jointly by Landlord and
Tenant, subject, however, to the provisions of an escrow agreement acceptable to
Landlord and Tenant. The escrow agreement shall permit Tenant to direct the
investment of such funds and shall provide that all interest or other earnings
(net of any fees and charges payable with respect to the escrow account) shall
automatically be paid out to Tenant not less frequently than quarterly, unless
there is an uncured default under this Lease.
4. ADDITIONAL RENT.
4.1 If, in any calendar year after the initial lease year
of this Lease, the Direct Costs (as hereinafter defined) shall exceed the sum
of $5.50 per net rentable square feet of the Building (the "Base Direct
Costs"), Tenant shall pay as additional rent ("Additional Rent") the Tenant's
Proportionate Share of such excess, in addition to and at the time provided for
payment of Base Rent. For purposes of the preceding provisions, the term
"Tenant's Proportionate Share" shall mean 52.13%. In the event the amount of
space leased by Tenant or the amount of space contained in the Building shall
increase or decrease subsequent to the date of this Lease, Tenant's
Proportionate Share shall be appropriately adjusted. Such percentage at the
time of execution of this Lease is calculated by dividing the Tenant's
estimated rentable area by the total estimated rentable area in the Building.
Tenant's Proportionate Share shall always and at any particular time be the
percentage derived form dividing Tenant's rentable square footage by the total
rentable square footage contained in the Building at such time.
4.2 From and after May 1, 2001, for each year during the
term of this Lease, Landlord may furnish to Tenant a written statement or
statements showing in reasonable detail Landlord's estimated Direct Costs for
the immediately succeeding calendar year, the amount, if any, of the excess of
such estimated Direct Costs over the Base Direct Costs, and the amount of any
Additional Rent estimated to be payable by Tenant, appropriately prorated on a
monthly basis. Thereafter, the monthly Additional Rent payment becoming due
hereunder shall be in the amount set forth in such estimated additional rent
statement from Landlord. Landlord's failure to deliver, nor the late delivery
of, such statement or statements more than six (6) months after the end of a
calendar year shall not constitute a default by Landlord hereunder but shall
constitute a waiver of Landlord's right to any estimated or actual Additional
Rent (excluding, however, those items of Additional Rent that are being
disputed in good faith and the outcome is not known at the expiration of such
six (6) month period).
4.3 If Landlord has furnished to Tenant the statement or
statements referred to in Section 4.2 above, within one hundred twenty (120)
days following the close of each calendar year, Landlord shall furnish to Tenant
a written statement of reconciliation (the "Reconciliation")
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showing in reasonable detail Landlord's actual Direct Costs for the relevant
calendar year, together with a statement of any adjustments necessary to
reconcile any sums paid (or credited) hereunder as estimated Additional Rent
during such calendar year with those sums actually payable and due hereunder for
such calendar year as set forth in the Reconciliation. If the Reconciliation
shows that additional sums are due from Tenant hereunder, Tenant shall pay such
sums to Landlord within ten (10) days after receipt of the Reconciliation. If
the Reconciliation shows that a credit is due Tenant, such sum shall be refunded
to Tenant within ten (10) days after Tenant's receipt of the Reconciliation. In
the event this Lease has expired or been terminated prior to the end of a
calendar year, the obligation to reconcile shall survive such expiration or
termination. Within one hundred twenty (120) days following the expiration or
termination of this Lease, Landlord shall furnish to Tenant the Reconciliation,
and if such Reconciliation shows that additional sums are due from Tenant
hereunder, Tenant shall pay such sums to Landlord within ten (10) days after
receipt of the Reconciliation. Landlord's failure to deliver the Reconciliation
to Tenant as provided herein shall not constitute a default by Landlord
hereunder but shall operate as a waiver of Landlord's right to collect all
Additional Rent and other sums due hereunder for the year in question. Where
only a portion of a calendar year falls within the term hereof, Landlord shall
calculate estimated (or actual, as the case may be) Additional Rent based upon a
reasonable proration of estimated (or actual) Direct Costs for such calendar
year.
4.4 Landlord may divide the statements referred to above
into separate statements for Tax Costs (as hereinafter defined) and Operating
Costs (as hereinafter defined). Additionally, Landlord may estimate and measure
Tax Costs or Operating Costs, or both, on a fiscal year instead of a calendar
year basis, and in such event any and all references in this Section 4 to
calendar year shall be deemed to refer to such fiscal year.
4.5 Notwithstanding anything to the contrary contained
herein, under no circumstances shall the provisions of this Section 4 cause
Base Rent to be reduced. Any reference to Landlord's "actual" Direct Costs in
this Section 4 shall be deemed to include an allowance for any adjustment to
reflect the level of occupancy of the Building to the extent provided for
below, if at all.
4.5.1 Tenant shall have the right during normal business
hours to audit, either by itself or with a person or firm selected by Tenant,
the records of Landlord relating to the calculation of Direct Costs; provided,
however, that Tenant's audit rights shall be limited to once per year during
the term of the Lease and any such audit shall not cover more than the
immediately preceding three (3) calendar years. Any such firm involved in the
audit shall be a nationally recognized accounting firm experienced in
conducting audits of expense pass-throughs for similar commercial buildings. If
such audit reveals errors or other discrepancies in the excess of fifteen
percent (15%) in the Landlord's determination of Direct Costs in any particular
year, then Landlord shall pay for the costs of such audit; otherwise, the cost
of such audit shall be paid entirely by Tenant. If such audit is conducted,
Tenant shall only be responsible for the portion of such Direct Costs as is
verified by such audit, and Landlord, within five (5) business days of Tenant's
demand therefor, shall refund to Tenant any excess Direct Costs which may have
been previously paid by Tenant to Landlord
4.6 "Tax Costs" shall mean the sum of the following: any
and all real property taxes, assessments (including, but not limited to,
general and special assessments), charges, surcharges, license and other fees,
levies, costs of improvement bonds, penalties (to the extent such penalties are
not imposed as a result of Landlord's negligence), and any and all other taxes
(other than income, franchise and estate taxes of Landlord) on or relating to
all or a portion of the Project (as it may exist from time to time) including,
but not limited to, walkways, the Parking Lot, common areas, landscaped areas,
fountains and art works or any legal or equitable interest of Landlord therein
which may be imposed, levied, assessed or charged for any reason by any
authority having the direct or indirect power to tax including, but not limited
to, the United States or the state, county or city in which the Building is
located or any other local governmental authority, agency, district or
political subdivision thereof, together with personal property taxes,
assessments, fees and charges (other than those paid by Tenant pursuant to
Section 28 below) and fees of tax consultants and attorneys retained to seek a
reduction, to contest or to act in some other manner in connection with any of
the foregoing Tax Costs, together with any tax, assessment or other amount
(including, without limitation, commercial rental taxes) imposed, levied or
charged as a substitute for or a supplement to the foregoing. If the assessed
valuation or
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Tax Costs of the Building for any calendar year during the term of this Lease
shall not be based upon a completed building at least ninety-five percent (95%)
occupied, then the Tax Costs during such year or years shall be adjusted to
reflect the taxes which would have been payable for such year or years if the
Building had been completed and was ninety-five percent (95%) occupied during
such year or years. Tax Costs for each tax year shall be appropriately prorated
to determine the Tax Costs for the subject calendar year.
4.7 "Operating Costs" shall mean the sum of the
following: any and all costs, expenses and disbursements paid or incurred by
Landlord in connection with the management, operation, security, maintenance
and repair of, and janitorial services for, the Project (as it may exist from
time to time) including, but not limited to, salaries, wages, benefits and
related costs for employees; management fees, either as charged to Landlord by
outside management companies or an amount not exceeding the amount typically
charged by outside management companies if Landlord manages the Project itself,
in either event not to exceed four percent (4%) together with the rental value
of space occupied as the Project management office; charges for utilities and
services (including any taxes thereon); the cost of insurance; the cost of
cleaning and building supplies and materials; any amounts payable under any and
all reciprocal easement agreements, covenants, conditions and restrictions (as
same may be supplemented or amended from time to time) or other instrument
pertaining tot he sharing of costs by the Building; a reasonable allowance for
depreciation (or amortization) with respect to machinery and equipment; and
costs relating to the financing of capital investment items (which, if
internally financed, shall include interest at an annual rate reasonably
determined by Landlord). If, during any calendar year, the Building is less
than ninety-five percent (95%) occupied, the Operating Costs shall be adjusted
to reflect the Operating Costs of the Building as though ninety-five percent
(95%) occupied.
4.7.1 Notwithstanding the foregoing, for purposes of this
Lease operating costs shall not, however, include:
(a) costs, including marketing costs, legal fees,
space planners' fees, advertising and promotional expenses, and brokerage fees
incurred in connection with the original construction or development, or
original or future leasing of the Project and costs, including permit, license
and inspection costs, incurred with respect to the installation of tenant
improvements made for new tenants initially occupying space in the Project after
the Lease Commencement Date or incurred in renovating or otherwise improving,
decorating, painting or redecorating vacant space for tenants or other occupants
of the Project (excluding, however, such costs relating to any common areas of
the Project or parking facilities);
(b) costs for which the Landlord is reimbursed by any
tenant or occupant of the Project or by insurance by its carrier or any tenant's
carrier or by anyone else, and electric power costs for which any tenant
directly contracts with the local public service company;
(c) any bad debt loss, rent loss, or reserves for bad
debts or rent loss;
(d) all items and services for which Tenant or any
other tenant in the Project reimburses Landlord or which Landlord provides
selectively to one or more tenants (other than Tenant) without reimbursement;
and
(e) costs arising from the gross negligence or
willful misconduct of Landlord or its agents, employees, vendors, contracts, or
providers of materials or services.
(f) Costs incurred by Landlord or its affiliates due
to a violation or violations by Landlord or by any tenants of the terms and
conditions of any leased space in the Building (excluding, however, any costs
incurred by Landlord or its affiliates in connection with the installation of
any parking access control program);
(g) Overhead or profit increment paid to the Landlord
for any service in the Building to the extent such causes the costs of such
services to exceed the costs to the Landlord if provided by third parties on a
competitive bid basis;
(h) Compensation paid to clerks, attendants or any
commercial concessions operated by Landlord or its employees or any compensation
payable to persons above the grade
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of on-site property manager; and
(i) Costs of a capital nature (excluding costs
associated with the installation of any parking access control system) and
including, without limitation, capital improvements, capital repairs, capital
equipment, except where such improvements are expected to reduce operating costs
net of any associated amortization of the cost of such improvements.
4.8 "Direct Costs" shall mean both Tax Costs and
Operating Costs, whether determined separately or jointly.
5. RESTRICTIONS ON USE.
Tenant shall use and occupy the Premises only as specified in
the Basic Lease Information. Tenant shall not do or permit anything to be done
in or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building or injure or annoy them,
nor use or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause or maintain or permit any
nuisance in or about the Premises, nor shall Tenant cause or permit any
Hazardous Materials (as hereinafter defined) to be brought to the Premises or
used, handled, stored, released or disposed of in, under or about the Premises,
the Building or the Project except for ordinary and general office supplies
typically used in the ordinary course of business within office buildings (some
or all of which may constitute "Hazardous Materials" as defined in this Lease).
Tenant shall not conduct business or other activity in or about the Premises of
such a nature as to place an unreasonable or excessive burden upon the common
areas. Tenant shall not commit or suffer the commission of any waste in or
about the Premises. As used in this Lease, the term "Hazardous Materials" shall
mean and include any hazardous or toxic materials, substances or wastes as now
or hereafter designated under any law, statute, ordinance, rule, regulation,
order or ruling of any agency of the State, the United States Government or any
local governmental authority including, without limitation, asbestos,
petroleum, petroleum hydrocarbons and petroleum based products, urea
formaldehyde and other chloroflurocarbons.
6. COMPLIANCE WITH LAWS.
Tenant shall not use the Premises or permit anything to be
done in or about the Premises which shall in any way conflict with any law,
statute, ordinance or governmental rule or regulation now in force or which may
hereafter be enacted or promulgated. Tenant shall not do or permit anything to
be done on or about the Premises or bring or keep anything therein which will
in any way increase the rate of any insurance upon the Building in which the
Premises are situated or any of its contents or cause a cancellation of said
insurance or otherwise affect said insurance in any manner, and Tenant shall at
its sole cost and expense promptly comply with all laws, statutes, ordinances
and governmental rules, regulations and requirements now in force or which may
hereafter be in force and with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted relating to or
affecting the condition, use or occupancy of the Premises.
7. CONSTRUCTION OF BUILDING; IMPROVEMENTS AND ALTERATIONS.
7.1 Construction of Building. Landlord, at its sole cost
and expense, shall construct the Building and related improvements on the
Property, which shall include an office building of approximately 104,825 net
rentable square feet, all in accordance with the Base Building Improvements
which shall be reviewed and approved by Tenant. The Base Building Improvements
may be modified and supplemented as hereinafter provided.
Landlord covenants and agrees that the Building will be
constructed with all new, good quality material in a good and workmanlike
manner, in accordance with good construction practices, and in accordance with
the approved Base Building Improvements (as the same may be modified or
supplemented as hereinafter provided) and all applicable codes, ordinances and
laws, including, without limitation, the requirements of the Americans With
Disabilities Act, the zoning ordinances and building code of the city, county or
other political subdivision having jurisdiction in which the Property is
located, and any building or architectural restrictions contained in any
restrictions to which the Property is subject. Landlord shall obtain all
approvals, permits and other governmental consents necessary or required to
construct the
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Building in the manner herein provided and Landlord shall pay the cost thereof
(excluding any City of Brentwood impact fees which were assigned and transferred
to Landlord in connection with Landlord's acquisition of the Property).
Landlord represents, warrants and covenants that construction
of the Building will commence as soon as practicable, but in all events within
thirty (30) days after Landlord acquires title to the Property. Landlord shall
diligently prosecute the same to completion in a timely manner so that the
Commencement Date of this Lease shall occur as set forth in Section 2 above.
All final decisions on plans and other design and engineering
decisions relating to construction of the Building shall be made by Landlord,
except that any material change in the scope of work depicted in the Base
Building Improvements and any material substitution of materials or methods of
construction from those described in the Base Building Improvements shall
require the prior written approval of Tenant. Such approval shall not be
unreasonably withheld or delayed, provided that such change or substitution (1)
is not inconsistent with the intent of the Base Building Improvements and does
not result in the substitution of inferior materials or methods of construction,
(2) does not materially delay or extend the Commencement Date (subject to Force
Majeure or Tenant Delay), (3) does not increase the financial commitment or
obligations or risk of legal liability on the part of Tenant under this Lease,
and (4) does not materially adversely affect Tenant's business operations to be
conducted from the Building. Upon notice to Landlord, Tenant shall, at all
reasonable times, have the right to inspect the progress and performance of the
construction of the Building to determine compliance with the Base Building
Improvements.
In construction of the Building, Landlord shall assure and
does hereby represent, warrant, covenant and agree that the Building shall be
constructed and equipped by Landlord, at its sole cost and expense (and not as a
part of the Tenant Improvement Allowance set forth in Section 7.2 below), so
that it shall include all of the Base Building Improvements. If and to the
extent Landlord fails to deliver the Building with all Base Building
Improvements in place and Tenant is required to bear such expense out of its
Tenant Improvement Allowance, such Tenant Improvement Allowance shall be deemed
increased dollar for dollar by Landlord to such extent, and Landlord shall
reimburse Tenant such amounts within five (5) business days of Tenant' demand
therefor.
7.2 Initial improvements to the Premises shall be
governed by the provisions of Exhibit "E" attached hereto and hereby made a
part hereof ("Work Agreement") and the other provisions of this Lease not in
conflict therewith. Landlord shall make a contribution to Tenant of $21.00 per
rentable square feet of the Premises (the "Tenant Improvement Allowance") to
defray a portion of the tenant improvement costs for the Premises and the costs
actually incurred by Tenant for telecommunications, architectural and
engineering services, permit fees and related infrastructure costs, all as more
fully set forth in the Work Agreement. In no event shall any portion of the
Tenant Improvement Allowance be used to pay the cost of Tenant's personal
property. If and to the extent Landlord fails to deliver the Building with all
Base Building Improvements in place and Tenant is required to bear such expense
out of the Tenant Improvement Allowance, such allowance shall be increased
dollar-for-dollar by Landlord to such extent.
7.3 Without the prior written consent of Landlord,
Tenant shall not make or permit to be made any alterations, additions or
improvements in, on or to the Premises or the Project or any part thereof,
except for interior, nonstructural alterations to the Premises not exceeding
Five Dollars ($5.00) per net rentable square feet in cumulative costs
throughout the term hereof. Notwithstanding any contrary provision herein,
Tenant shall not, in any event, make any alterations, additions or improvements
which affect structural portions of the Building or Building systems or which
are visible from the exterior of the Premises or which interfere with or
disrupt other tenants in the Building or with any work then being carried out
therein by Landlord or its contractors. Any alterations, additions or
improvements desired by Tenant shall be made at Tenant's sole cost and expense
in compliance with Section 9 below and in accordance with plans and
specifications, and pursuant to governmental permits, approved in advance by
Landlord. Any contractor selected by Tenant to make same must be bondable and
licensed and be approved in advance by Landlord and must provide insurance
coverage acceptable to Landlord. At Landlord's option, any alterations,
additions or improvements desired by Tenant shall be made
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by Landlord (or its contractors) for Tenant's account, and Tenant shall pay
the cost thereof to Landlord prior to Landlord's contracting for such work;
provided, however, that the bid obtained by Landlord shall not exceed the lowest
bona fide bid, from a contractor reasonably satisfactory to Landlord,
theretofore obtained by Tenant and communicated to Landlord. Upon completion of
any alterations, additions or improvements, Tenant shall furnish to Landlord a
set of "as built" plans and specifications therefor, and, within ten (10) days
after such completion, Tenant shall cause an appropriate notice of completion to
be recorded in the Official Records. Tenant shall cause all such alterations,
additions or improvements to be completed in a good, workmanlike, diligent,
prompt and expeditious manner in compliance with all applicable laws. Landlord's
approval of Tenant's plans and specifications shall not constitute a
representation or warranty of Landlord as to the adequacy thereof or compliance
thereof with applicable laws.
8. REPAIRS AND MAINTENANCE.
8.1 By taking possession of the Premises, Tenant shall
accept the Premises as being in the condition in which Landlord is obligated to
deliver them and otherwise in good order, condition and repair, subject to
punch list items to be installed, completed or repaired by Landlord within
mutually agreeable time frames ("Punch List") as contained in an itemized
listing which must be submitted, if at all, by Tenant to Landlord within thirty
(30) of the Commencement Date. Notwithstanding the foregoing, concerning
Tenant's acceptance and any other waivers contained elsewhere in this Lease,
Tenant shall not be deemed to have waived claims or rights against Landlord for
any latent defects in the Building or the Premises which, by their nature, are
not reasonably discoverable within such thirty (30) day period. As to such
defects, Tenant shall have thirty (30) days from the date of actual discovery
to notify Landlord in writing of claims for latent defects, and Landlord shall
thereafter take such steps as may be reasonably necessary to resolve such
issues. Subject to the provisions of Section 22 below, Tenant shall, at all
times during the term hereof and, at Tenant's sole cost and expense, keep the
Premises and every part thereof in good order, condition and repair. It is
hereby understood and agreed that Landlord has no obligation to alter, remodel,
improve, repair, decorate or paint the Premises or any part thereof, except as
specified in Section 22 below or in the Work Agreement, and that no
representations relating to the condition of the Premises, the Building or the
Project have been made by Landlord (or any employee or agent thereof) to
Tenant, except as may be expressly set forth in this Lease.
8.2 Subject to the provisions of Section 8.1. above and
Section 22 below, Landlord shall maintain the common areas, the foundation and
structural portions of the Building, and the Building systems providing the
services and utilities to be furnished by Landlord pursuant to Section 13.1.
below, in reasonably good order and condition and repair.
8.3 Landlord shall be responsible for compliance of the
Project (excluding the interior of the Premises) with the Americans With
Disabilities Act and any similar state or other federal laws (collectively, the
"ADA Laws") in effect on the Commencement Date of the Lease; provided, however,
Landlord shall be responsible for any emergency exit signs located within the
Premises and for the bathrooms within the Premises. Landlord shall be
responsible for the Project's compliance with any modifications, revisions or
changes in such laws which are effective after the Commencement Date provided
that the necessity for complying with such laws is a result of a "Compliance
Triggering Event" (as hereinafter defined). For the purposes hereof, a
"Compliance Triggering Event" shall mean any of the following (a) receipt by
Landlord, Tenant or any tenant of a notice from any governments agency or
authority (federal, state or local) requiring that the Project of any portion
thereof comply with the ADA Laws, (b) the making, filing or threatening to make
or file a claim of action arising, in whole or in part, out of alleged
non-compliance of the Project, or any portion thereof, with the ADA Laws, (c)
the non-compliance of the Project or any portion thereof with the ADA Laws
causing a default under any loan secured by the Project, or (d) any actions of
Landlord, Tenant or any tenant with respect to the Property that cause any of
the foregoing to occur.
9. LIENS.
Tenant shall keep the Project free from any liens arising out
of any work performed, material furnished or obligations incurred by Tenant,
unless Tenant is contesting such lien in good faith by appropriate proceedings
and so long as Landlord's interest in the Building is
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not jeopardized or Landlord's financing threatened. In the event that Tenant
shall not, within thirty (30) days following the imposition of any such lien,
cause the same to be released of record by payment or posting of a proper bond,
Landlord shall have, in addition to all other remedies provided herein and at
law or in equity, the right, but not obligation, to cause same to be released by
such means as it shall deem proper including, but not limited to, payment (from
the security deposit referred to in Section 3.2. above or otherwise) of the
claim giving rise to such lien. All such sums paid by Landlord and all expenses
incurred by it in connection therewith shall be considered additional rent and
shall be payable to it by Tenant on demand with interest at the Interest Rate
(as defined in Section 29 below). Landlord may require, at Landlord's sole
option, that Tenant cause to be provided to Landlord, at Tenant's sole cost and
expense, a performance and labor and materials payment bond reasonably
acceptable to Landlord with respect to any improvements, additions or
alterations to the Premises. Landlord shall have the right at all times to post
and keep posted on the Premises any notices permitted or required by law, or
which Landlord shall deem proper, for the protection of Landlord, the Project
and any other party having an interest therein from mechanics' and materialmen's
liens, and Tenant shall give to Landlord at least five (5) business days' prior
notice of commencement of any work on the Premises.
10. ASSIGNING AND SUBLETTING.
10.1 Tenant shall not assign, sublease or otherwise
transfer, voluntarily, by operation of law or otherwise, any interest herein or
in the Premises, nor shall Tenant permit any transferee to further assign,
sublease or otherwise transfer any such interest, without Landlord's prior
written consent, which shall not be unreasonably withheld. For purposes of this
Article, the term "transfer" shall include, without limitation, entering into
any license or concession agreement or otherwise permitting any third party
other than Tenant and Tenant's employees, contractors, invitees and guests to
occupy or use the Premises or any portion thereof. In determining whether to
grant such consent, Landlord may consider various factors including, without
limitation, the following: (a) business criteria relating to the proposed
transferee's background, experience, reputation, general operating ability and
ability to perform Lease obligations, and potential for succeeding in its
business, (b) financial criteria relating to the proposed transferee's
financial responsibility, credit rating and capitalization, (c) the identity
and personal characteristics of the proposed transferee and its invitees and
guests, and (d) the nature of the proposed use and business of the proposed
transferee and its effect on the tenant mix of the Building. Without limiting
the generality of the foregoing, Landlord hereby reserves the right to
condition any such consent upon Landlord's determination that (i) the proposed
transferee is at least as financially and morally responsible as Tenant then
is, or was upon the execution hereof, whichever is greater, and (ii) the
proposed transferee shall use the Premises in compliance with Section 6 above.
Notwithstanding any provision in this Lease to the contrary, Tenant shall not
enter into any proposed assignment, sublease or other transfer of any interest
herein or in the Premises (x) with a prospective tenant which is negotiating
directly with Landlord to lease space in the Building or (y) which would result
in (A) detraction from the first-class character or image of the Building or
diminution in the value thereof (B) the Premises being occupied by more than
three (3) tenants per floor, or (C) a breach by Landlord of any then existing
exclusive right in favor of any other tenant of the Building, any loan
obligation or agreement, any covenants, conditions and restrictions of record,
or any insurance policy. Tenant shall submit the following information with a
written request for Landlord's consent to any assignment, sublease or other
transfer: (1) all transfer and related documents, (2) financial statements, (3)
business, credit and personal references and history, and (4) such other
information as Landlord may reasonably request relating to the proposed
transfer and the parties involved therein. Any transaction which does not
comply with the provisions of this Section shall be voidable at the option of
Landlord and shall constitute a breach of and default under this Lease by
Tenant.
10.2 Notwithstanding any provision in this Lease to the
contrary, if Tenant desires, at any time to assign, sublease or otherwise
transfer the entirety of its interest herein or in the Premises to any party
other than an affiliate for the balance of the initial Lease term or if Tenant
desires to assign, sublease or otherwise transfer any interest herein or in the
Premises to any party (other than an affiliate) for the balance of the initial
term of this Lease or any extension term, it shall first notify Landlord of its
desire to do so and shall designate in such notice the space and time period
involved. Landlord shall have sixty (60) days in which to elect, at its option,
to terminate this Lease as to said space, for said time period, in which event
said space shall be
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excluded from the term "Premises" during said time period and Base Rent,
Additional Rent, Tenant's parking rights, and any other provisions hereof based
on the size of the Premises shall be equitably reduced to reflect such
exclusion. If Landlord does not, within such sixty (60) day period, deliver to
Tenant notice of its election to so recapture such space, Tenant may proceed to
assign, sublease or otherwise transfer in accordance with the terms designated
in Tenant's notice, subject to the other provisions of this Lease including,
without limitation, Landlord's reasonable consent thereto pursuant to the
foregoing.
10.2.1 If Landlord elects to exercise its election to
recapture (as set forth in Section 10.2 above) and Landlord such recaptured
space, Landlord shall pay to Tenant, promptly following Landlord's receipt
thereof, an amount equal to fifty percent (50%) of the amount, if any, by which
all rental and other payments (whether paid in installments, as lump sums or
otherwise) received by Landlord with respect to the space in question received
by Landlord exceed the aggregate of the Base Rent, Additional Rent and other
amounts payable pursuant to this Lease for the subject period with respect to
such space after deducting commissions and other out-of-pocket costs paid by
Landlord in connection with the transaction, and any tenant improvements costs,
free rent and any other concessions granted to the new lessee.
10.2.2 If Landlord elects to exercise its election to
recapture (as set forth in Section 10.2 above) and Landlord leases such
recaptured space, the term of such lease shall not extend beyond the then
remaining balance of the initial term of this Lease. If, upon the expiration or
earlier termination of a lease of such recaptured space, Landlord receives a
bona fide offer, in writing, to re-lease all or any portion of such recaptured
space, Tenant shall have a right of first refusal to re-lease such recaptured
space on the same terms and conditions upon which such third party has offered
to re-lease such recaptured space. Within five (5) business days after Landlord
has provided such written notification to Tenant of the terms and conditions on
which such third party has offered to re-lease such recaptured space together
with a true, complete and accurate copy of such offer to re-lease as executed by
such third party. Tenant shall notify Landlord, in writing, of Tenant's election
to re-lease such recaptured space on the same terms and conditions as such third
party is willing to re-lease such recaptured space or, alternatively, of
Tenant's election not to re-lease such recaptured space. Tenant's failure to
deliver its written election notice to Landlord within the time period specified
above shall be deemed to be Tenant's election not to re-lease such recaptured
space.
10.3 With respect to any assignment, sublease or other
transfer of any interest herein or in the Premises, Tenant shall,
notwithstanding any contrary provision herein, pay to Landlord, promptly
following Tenant's receipt thereof, fifty percent (50%) of the amount by which
all rental and other payments (whether paid in installments, as lump sums, or
otherwise) relating to the space in question received by Tenant exceed the
aggregate of the Base Rent, Additional Rent and other amounts payable pursuant
to this Lease for the subject period with respect to such space (with the rental
and other amounts payable by Tenant for the Premises allocated on the basis of
rentable area) after deducting reasonable commissions and other reasonable
out-of-pocket costs paid by Tenant in connection with the transaction in
question, any fee paid to Landlord pursuant to Section 10.4 tenant improvement
costs, free rent and any other concessions granted to the transferee. The
provisions of this Section 10.3 shall apply regardless of whether such
assignment, sublease or other transfer is made in compliance with the provisions
of this Lease. Any payments made to Landlord pursuant to this Section shall not
cure any default under this Lease arising from such assignment, sublease or
transfer. Tenant shall not artificially structure any sublease, assignment or
other transfer in order to reduce the amount payable to Landlord under this
Section, nor shall Tenant take any other steps for the purpose of circumventing
its obligation to pay amounts to Landlord under this Section; in the event that
Tenant does same, the amount payable to Landlord under this Section shall be the
amount that would have been payable to Landlord had same not occurred.
10.4 Tenant shall pay to Landlord a fee of $500 plus
Landlord's costs and expenses (including, but not limited to, reasonable
attorneys', accountants', architects', engineers' and consultants' fees)
incurred in connection with the processing and documentation of any requested
assignment, sublease or other transfer.
10.5 No assignment, sublease or other transfer, even with
the consent of Landlord, shall result in Tenant's being released from any of
its obligations hereunder. Landlord's consent
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to any one transfer shall apply only to the specific transaction thereby
authorized and such consent shall not be construed as a waiver of the duty of
Tenant or any transferee to obtain Landlord's consent to any other or subsequent
transfer or as modifying or limiting Landlord's rights hereunder in any way.
Upon any assignment hereof, the assignee shall assume in writing all obligations
and covenants of Tenant thereafter to be performed or observed hereunder.
Landlord's acceptance of rent directly from any assignee, subtenant or other
transferee shall not be construed as Landlord's consent thereto nor Landlord's
agreement to accept the attornment of any subtenant in the event of any
termination of this Lease. In no event shall Landlord's enforcement of any
provision of this Lease against any transferee be deemed a waiver of Landlord's
right to enforce any term of this Lease against Tenant or any other person. If
Tenant's obligations hereunder have been guaranteed, Landlord's consent to any
assignment, sublease or other transfer shall not be effective unless the
guarantor also consents to such transaction.
10.6 Except in connection with Tenant's initial public
offering of its equity ("Tenant's IPO"), if Tenant is a corporation, an
unincorporated association or a partnership, any cumulative transfer, assignment
or hypothecation of any stock or interest in such corporation, association or
partnership greater than fifty percent (50%) thereof, or any cumulative
transfer, assignment or hypothecation (other than in the ordinary course of
business) of any assets of such corporation, association or partnership greater
than twenty-fifty percent (50%) thereof, shall be deemed an assignment within
the meaning and provisions of this Section and shall be subject to the
provisions hereof.
11. WAIVER; INDEMNITY.
11.1 Notwithstanding any contrary provision in this Lease,
Landlord shall not be liable and Tenant hereby waives all claims against
Landlord for any injury or damage to any person or property or any other loss
(including, but not limited to, loss of income) in or about the Premises, the
Building or the Project by or from any cause whatsoever, and, without limiting
the generality of the foregoing, whether caused by water leakage of any
character from the roof, walls, basement or any other portion of the Premises,
the Building or the Project, or by gas, fire, oil or electricity, or by any
interruption of utilities or services, or by any tenant, occupant or other
person, or by any other cause whatsoever in, on or about the Premises, the
Building or the Project. Notwithstanding any contrary provision in this Lease,
Landlord and its agents shall in no event be liable for consequential damages
hereunder.
11.2 Except to the extent arising from the gross
negligence or willful misconduct of Landlord, Tenant shall indemnify Landlord,
its partners, officers, agents, servants, employees and invitees (collectively,
the "Landlord Parties") and hold the Landlord Parties harmless from and against
any and all claims, demands, losses, damages, liabilities, costs and expenses
(including, but not limited to, reasonable attorneys' fees) arising from
Tenant's use or enjoyment of the Project, from the conduct of Tenant's
business, from any act or omission, work or thing done, permitted or suffered
by Tenant (or any officer, employee, agent, contractor, representative,
licensee, guest, invitee or visitor thereof) in or about the Project, or from
any default under this Lease by Tenant. If any action or proceeding is brought
against any Landlord Party by reason of any such matter, Tenant shall, upon
Landlord's request, defend same at Tenant's expense by counsel satisfactory to
Landlord, in its sole and absolute discretion. The provisions of this Section
11.2. shall survive the expiration or termination of this Lease with respect to
any claims or liability arising from events occurring prior to such expiration
or termination.
12. INSURANCE.
12.1 From and after the date of delivery of possession of
the Premises from Landlord to Tenant and throughout the term hereof, Tenant
shall carry and maintain, at its own expense, the following types, amounts and
forms of insurance:
12.1.1 Tenant shall carry and maintain a policy of
commercial general liability insurance with a combined single limit of Two
Million Dollars ($2,000,000) per occurrence in the name of Tenant (with
Landlord and, if requested by Landlord, any mortgagee, trust deed holder,
ground lessor or secured party with an interest in this Lease, the Building or
the Project named as additional insured). Such policy shall specifically
include, without limitation, personal injury, broad form property damage,
liquor liability (if alcoholic beverages shall be sold or served, with a
license being required therefor, in or on the Premises), and contractual
liability coverage, the
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last of which shall cover the insuring provisions of this Lease and the
performance by Tenant of the indemnity agreements in Section 11 above. Such
policy shall contain cross-liability endorsements and shall provide coverage on
an occurrence basis. The amount of such insurance required hereunder shall be
subject to adjustment from time to time as reasonably requested by Landlord.
12.1.2 Tenant shall carry and maintain a policy or policies
of property insurance in the name of Tenant covering Tenant's leasehold
improvements and any property of Tenant at the Premises and providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, special extended peril (all
risk) and sprinkler leakage, in an amount equal to at least one hundred percent
(100%) of the replacement cost thereof from time to time (including, without
limitation, cost of debris removal), with an agreed amount endorsement, and
providing protection against loss of income and extra expense. Any proceeds
from such insurance shall be used for the repair or replacement of the property
damaged or destroyed, unless this Lease is terminated pursuant to the
provisions hereof. If the Premises are not repaired or restored following
damage or destruction, Landlord shall receive any proceeds from such insurance
allocable to Tenant's leasehold improvements.
12.1.3 Tenant shall carry and maintain a policy or policies
of workers' compensation and employers' liability insurance in compliance with
all applicable laws.
12.1.4 All of the policies required to be obtained by Tenant
pursuant to the provisions of this Section 12.1. shall be issued by companies
licensed to do business in Tennessee, and shall be in form and content,
acceptable to Landlord. All policies must be issued by insurers with a policy
holder rating of "A" or better and a financial rating of "X" in the most recent
version of Best's Key Rating Guide. Without limiting the generality of the
foregoing, any deductible amounts under said policies shall be subject to
Landlord's approval. Tenant shall, prior to delivery of the Premises by
Landlord to Tenant, provide Landlord with copies of and certificates for all
insurance policies. All insurance policies shall provide that they may not be
altered or cancelled until after thirty (30) days' written notice to Landlord
(by any means described in Section 27 below) and to any other additional
insureds thereunder. Tenant shall, at least thirty (30) days prior to the
expiration of any of such policies, furnish Landlord with a renewal or binder
therefor. Tenant may carry insurance under a so-called "blanket" policy,
provided that such policy provides that the amount of insurance required
hereunder shall not be prejudiced by other losses covered thereby. All
insurance policies carried by Tenant shall be primary with respect to, and
non-contributory with, any other insurance available to Landlord. Such policies
shall provide that the interests of Landlord and any other additional insureds
designated by Landlord shall not be invalidated due to any breach or violation
of any warranties, representations or declarations contained in such policies
or the applications therefor. If Tenant fails to carry any insurance policy
required hereunder or to furnish copies thereof and certificates therefor
pursuant hereto, Landlord may, without limiting Landlord in the exercise of any
other right or remedy, obtain such insurance, and Tenant shall reimburse
Landlord for the costs thereof with the next monthly rental payments due
hereunder.
12.2 During the term of this Lease, Landlord shall keep
and maintain property insurance for the Project in such amounts, and with such
coverages, and Landlord may keep and maintain such other insurance (including,
but not limited to, earthquake insurance), as is customary for similar
buildings in the greater Nashville Metropolitan area or as any lienholder may
require. Tenant acknowledges that it shall not be a named insured in such
policies and that it has no right to receive any proceeds from any such
insurance policies carried by Landlord. Notwithstanding any contrary provision
herein, Landlord shall not be required to carry insurance covering the property
described in Section 12.1.2. above or covering flood or earthquake.
12.3 Each party hereto hereby waives any and all rights to
recover against the other party, or against the officers, employees or
principals thereof, for loss or damage arising from any peril to the extent
insured against under any property or workers' compensation insurance policy
carried by such waiving party. The foregoing waiver shall be effective only to
the extent permitted under each such insurance policy, and, to the extent
reasonably available, each such policy shall be endorsed to reflect the
foregoing.
12.4 Tenant shall pay any increases in insurance premiums
relating to property in the
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Project to the extent that any such increase is specified by the
insurance carrier as being caused by Tenant's acts or omissions or use or
occupancy of the Premises.
13. SERVICES AND UTILITIES.
13.1 Subject to the provisions contained elsewhere herein
and to the rules and regulations of the Building, Landlord shall cause to be
furnished to the Premises water and electricity, and heating, ventilation and
air conditioning, required in Landlord's judgment for the comfortable use and
occupation of the Premises (but not in excess of such utilities and services
which are customarily furnished in comparable office buildings in the immediate
market area), during the business hours of the Building, which shall be 7:00
A.M. to 7:00 P.M., Monday through Friday, and 8:00 A.M. to 1:00 P.M. on
Saturday, except for New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day and such other holidays as may be determined by
Landlord from time to time (collectively, the "Holidays") and, provided that
the Premises are used exclusively as offices and are kept reasonably in order
by Tenant, janitorial services during the times and in the manner that such
services are customarily furnished in comparable office buildings in the market
area of the Project but not less than the services shown on Exhibit "H". If
Landlord elects to provide additional or after-hours heating, ventilation, air
conditioning or any of the other utilities or services referred to above at
Tenant's request, Tenant shall pay to Landlord an amount equal to Landlord's
actual costs per hour (plus an allocable charge for depreciation of equipment)
or such other reasonable charge therefor as determined by Landlord from time to
time. Tenant shall keep and cause to be kept closed all window coverings when
necessary because of the sun's position, and Tenant also shall at all times
cooperate fully with Landlord and abide by all the regulations and requirements
which Landlord may prescribe for the proper functioning and protection of the
heating, ventilation and air conditioning system. If any heat-generating
machine, excess lighting or equipment in the Premises affects the temperature
otherwise maintained by the air conditioning system, Landlord may install (or
at Tenant's request shall install) supplementary air conditioning units in the
Premises, and the cost thereof (including, but not limited to, the cost of
installation, operation and maintenance thereof) shall be paid by Tenant to
Landlord upon demand by Landlord.
13.2 Notwithstanding the last sentence of Section 13.1.
above, Tenant shall not, without the prior written consent of Landlord, use in
the Premises any apparatus, device, machine or equipment using excess lighting,
electricity or water; nor shall Tenant connect any apparatus or device to
sources of electrical current or water except through existing electrical
outlets or water pipes in the Premises. If Tenant shall require excess
electricity, or water or any other resource in excess of that customarily
supplied for use of similar premises as general office space, Tenant shall
first request the consent of Landlord and obtain, at Tenant's sole cost and
expense, any additional consent required from governmental authorities. In the
event that Landlord gives its consent and any such additional consent is
obtained, Landlord may cause a separate metering device to be installed in the
Premises so as to measure the amount of the resource consumed within the
Premises. The cost of any such separate metering device including, but not
limited to, the cost of installation, maintenance and repair thereof shall be
paid by Tenant. Tenant shall promptly pay the cost of all excess resources
consumed within the Premises, together with any additional administrative
expense incurred by Landlord in connection therewith. For purposes of the
foregoing, excess electricity shall be deemed to consist of any amount in
excess of 3 watts at 120/208 volts per usable square foot on an annualized
basis for lighting and 1.5 watts at 277/480 volts per usable square foot on an
annualized basis for purposes other than lighting.
13.3 Landlord shall not be in default hereunder or be
liable for any damages directly or indirectly resulting from any interruption
of utilities or services caused by (i) the installation or repair of any
equipment in connection with the furnishing of utilities or services, (ii) acts
of God or the elements, labor disturbances of any character, any other
accidents or any other conditions beyond the reasonable control of Landlord, or
by the making of repairs or improvements to the Premises or the Project, or
(iii) the limitation, curtailment, rationing or restriction imposed by any
governmental agency or service or utility supplier on use of water or
electricity, gas or any other form of energy or any other service or utility
whatsoever serving the Premises or the Project. Furthermore, Landlord shall be
entitled, without any obligation or compensation to Tenant, to cooperate
voluntarily in a reasonable manner with the efforts of national, state or local
governmental agencies or service or utility suppliers in reducing the
consumption of energy or
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other resources; if Landlord shall so cooperate, Tenant shall also reasonably
cooperate therewith.
13.4 Any sums payable under this Section 13 shall be
considered additional rent and may be added to any installment of rent
thereafter becoming due, and Landlord shall have the same remedies for a default
in payment of such sums as for a default in the payment of rent.
14. TENANT'S CERTIFICATE.
Within ten (10) days after delivery of the Premises to Tenant
and thereafter within ten (10) days after any written request which Landlord
may make from time to time, Tenant shall execute and deliver to Landlord a
certificate (the "Certificate") substantially in the form attached hereto as
Exhibit "F" and hereby made a part hereof, together with such financial
information relating to Tenant or any guarantor as Landlord or any prospective
purchaser or lender may reasonably request. Landlord shall have the right to
request that Tenant agree to amend or otherwise supplement the Certificate to
include such other information and provisions as may reasonably be requested by
any existing or prospective lender or by any prospective purchaser. Any failure
by Tenant to so execute and deliver the Certificate shall, at Landlords
election, constitute a certification by Tenant that the statements included in
the Certificate (as same may have been so amended or supplemented) are true and
correct, except as Landlord shall otherwise indicate. Landlord and Tenant
intend that the Certificate may be relied upon by any existing or prospective
lender or by any prospective purchaser.
15. HOLDING OVER.
If Tenant, with Landlord's written consent, remains in
possession of all or any portion of the Premises after the expiration or sooner
termination of the term hereof, such holding over shall be deemed to constitute
a tenancy from month to month only, upon such terms and conditions hereof as
could be reasonably and logically construed as applying thereto; provided,
however, that during such holding over, Base Rent shall be one hundred fifty
percent (150%) of the Base Rent in effect immediately prior to such expiration
or termination, and any and all options and rights of first refusal or other
preferential rights of Tenant shall be deemed to have lapsed and to be of no
further force or effect. Landlord may terminate such tenancy from month to
month by giving to Tenant at least seven (7) days' written notice thereof at
any time. Acceptance by Landlord of any rent after such expiration or
termination shall not be deemed to constitute Landlord's consent to such
holding over.
16. SUBORDINATION; REQUIREMENTS OF LENDERS.
16.1 Without the necessity of any additional document
being executed by Tenant for the purpose of effecting a subordination, this
Lease shall be subject and subordinate at all times to (a) all ground leases or
underlying leases which may now exist or hereafter be executed affecting all or
any portion of the Project, and (b) the lien of any mortgage or deed of trust
which may now exist or hereafter be executed affecting all or any portion of the
Project, provided that such ground lease, underlying lease, mortgage or deed of
trust is approved by the mortgagor under a first mortgage or the beneficiary
under a first deed of trust, as the case may be, encumbering the Building and
provided further that the Tenant is granted usual and customary non-disturbance
rights which are acceptable to Tenant, in its reasonable discretion.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases or any such
liens to this Lease. In the event that any ground lease or underlying lease
terminates for any reason or any mortgage or deed of trust is foreclosed or a
deed in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination, attorn to and become the Tenant of the
successor in interest to Landlord. So long as Tenant is not in default under
this Lease, Tenant's possession of the Premises and all of Tenant's rights under
this Lease shall not be disturbed or altered as a result of such termination,
foreclosure or deed in lieu of foreclosure. Tenant covenants and agrees to
execute and deliver, upon demand by Landlord or any lienholder or successor in
interest, any additional documents evidencing the priority or subordination of
this Lease and the attornment of Tenant with respect to any such ground leases
or underlying leases or the lien of any such mortgage or deed or trust subject
always to Tenant's obtaining such usual and customary non-disturbance rights
which are acceptable to Tenant, in its reasonable discretion.
16.2 If, in connection with the obtainment of financing
for the Project or any portion
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thereof, the lender requests reasonable modifications hereto as a condition to
the furnishing of such financing, Tenant shall not unreasonably withhold or
delay its consent thereto, provided that such modifications do not materially
increase the obligations of Tenant hereunder or materially adversely affect
Tenant's rights hereunder.
17. RULES AND REGULATIONS.
Tenant shall observe and comply with the rules and
regulations set forth in Exhibit "G" attached hereto and hereby made a part
hereof and any and all reasonable modifications thereof and additions thereto
from time to time established by Landlord. In the event of any conflict between
said rules and regulations and the other provisions hereof, the latter shall
control.
18. ACCESS BY LANDLORD.
Landlord reserves, and Landlord (and its agents, contractors
and employees) shall at reasonable times have, the right to enter the Premises
to inspect same, to supply janitor service and any other service to be provided
by Landlord to Tenant hereunder, to show the Premises to any prospective
purchaser, beneficiary, mortgagee or tenant, to post notices of
nonresponsibility, and to make any alteration, improvement or repair to the
Premises or any portion of the Building, without abatement of rent, and may for
that purpose erect, use and maintain scaffolding, pipes, conduits and other
necessary structures in and through the Premises where reasonably required by
the character of the work to be performed, provided that entrance to the
Premises shall not be blocked thereby, and further provided that the business
of Tenant shall not be interfered with unreasonably. Except in the case of
Landlord's negligence or willful misconduct, Tenant hereby waives any claim for
damages for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned thereby. For each of the aforesaid purposes, Landlord
shall at all times have and retain a key with which to unlock all of the doors
in, upon and about the Premises, excluding Tenant's vaults and safes, and
Landlord shall have the right to use any and all means which Landlord may deem
necessary or proper to open said doors in an emergency, in order to obtain
entry to any portion of the Premises, and any entry to the Premises or portions
thereof obtained by Landlord by any of such means or otherwise shall not under
any circumstances be construed or deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction, actual or constructive,
of Tenant from the Premises or any portion thereof. With the Tenant's consent
not to be unreasonably withheld, conditioned or delayed, Landlord shall also
have the right at any time, without same constituting an actual or constructive
eviction and without incurring any liability to Tenant therefor, to change the
arrangement and/or location of entrances or passageways, doors and doorways,
and corridors, elevators, stairs, toilets or other public parts of the
Building, provided that such changes do not unreasonably interfere with the
suitability of the Premises for Tenant's use as provided in Section 5 above.
19. DEFAULT BY TENANT.
The occurrence of any of the following shall constitute a
breach of, and default under, this Lease by Tenant:
19.1 Failure by Tenant to pay any amount (including,
without limitation, monthly installments of Base Rent and Additional Rent) when
and as same becomes payable in accordance with the provisions of this Lease,
and the continuation of such failure for a period of ten (10) days.
19.2 Failure by Tenant in the due, prompt and complete
performance or observance of any other express or implied covenant, agreement
or obligation of Tenant contained in this Lease, and the continuation of such
failure for a period of thirty (30) days after written notice from Landlord to
Tenant specifying the nature of such failure; provided, however, that if any
such failure not involving a hazardous condition cannot reasonably be cured
within such period, Tenant shall not be deemed to be in default hereunder if
Tenant promptly commences such cure within such period and thereafter
diligently pursues such cure to completion within a reasonable time but, in no
event, more than one hundred twenty (120) days after such notice.
19.3 Tenant's vacating, abandoning or failing to accept
tender of possession of the
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Premises or any significant portion thereof.
19.4 Any financial statement or any representation given
to Landlord by Tenant, or any assignee, sublessee or successor of Tenant or any
guarantor of this Lease, proves to be materially false or misleading.
19.5 The insolvency of Tenant; the making by Tenant of any
assignment for the benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged bankrupt or of a petition for reorganization or
arrangement under any law relating to bankruptcy, insolvency or creditors'
rights in general (unless in the case of a petition filed against Tenant, the
same is dismissed within sixty (60) days); the appointment of a trustee or
receiver to take possession of all or a substantial part of Tenant's assets or
of Tenant's interest under this Lease, where such seizure is not discharged
within sixty (60) days. The occurrence of any of the acts or events referred to
in this subsection with respect to any guarantor of this Lease, if any, shall
also constitute a default hereunder.
19.6 The attachment, execution or other judicial seizure
of a substantial portion of Tenant's assets or of Tenant's interest in this
Lease, where such seizure is not discharged within sixty (60) days.
19.7 Tenant's failure to cause to be released any
mechanics' liens filed against the Premises or the Project as required in the
Lease.
19.8 Tenant's failure to observe or perform according to the
provisions of Section 14 and Section 16 hereof within two (2) business days
after notice from Landlord.
20. REMEDIES OF LANDLORD.
20.1 In the event of Tenant's breach of or default under
this Lease as provided in Section 19 above, Landlord, at Landlord's option, and
without limiting Landlord in the exercise of any other right or remedy Landlord
may have on account of such default, and without any further demand or notice,
may terminate Tenant's right to possession of the Premises by any lawful means,
in which case this Lease and the term hereof shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord.
20.2 If Landlord terminates this Lease as provided in
Section 20.1. above, Landlord shall be entitled to recover from Tenant the
aggregate of all amounts permitted by law including, but not limited to:
20.2.1 The worth at the time of award of the unpaid rent
and charges equivalent to rent earned as of the date of the termination hereof;
plus
20.2.2 The worth at the time of award of the amount by
which the unpaid rent and charges equivalent to rent which would have been
earned after the date of termination hereof until the time of award exceeds the
amount of such rental loss that Tenant proves could have been reasonably
avoided; plus
20.2.3 The worth at the time of award of the amount by
which the unpaid rent and charges equivalent to rent for the balance of the
term hereof after the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus
20.2.4 Any other amount necessary to compensate Landlord
for the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which, in the ordinary course of things, would
be likely to result therefrom, specifically including, but not limited to, the
cost of recovering possession of the Premises, expenses of releasing, including
necessary renovation and alteration of the Premises, reasonable attorneys'
fees, any real estate commissions actually paid by Landlord and the unamortized
value of any free rent, reduced rent, tenant improvement allowance or other
economic concessions provided by Landlord.
For purposes of this Section, the "time of award" shall mean
the date upon which the judgment in any action brought by Landlord against
Tenant by reason of such default is entered or such earlier date as the court
may determine; the "worth at the time of award" of the
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amounts referred to in Sections 20.2.1. and 20.2.2. shall be computed by
allowing interest at the Interest Rate, but not less than the legal rate; and
the "worth at the time of award" of the amount referred to in Section 20.2.3.
shall be computed by discounting such amount at the discount rate of the
Federal Reserve Bank at the time of the award plus one percent (1%).
20.3 Nothing in this Section 20 shall prevent Landlord,
in the event of Tenant's breach or default under this Lease as provided in
Section 19 above, at Landlord's option, and without limiting Landlord in the
exercise of any other right or remedy Landlord may have on account of such
default, and without any further demand or notice, maintain Tenant's right of
possession in which event Landlord shall have the remedy which permits Landlord
to continue this Lease in effect after Tenant's breach and abandonment and
recover rent as it becomes due.
20.4 Nothing in this Section 20, and no termination
pursuant to any other provision of this Lease, shall be deemed to affect
Landlord's right to indemnification for liability or liabilities arising prior
to the termination of this Lease under the indemnification clause or clauses
contained in this Lease.
20.5 If Tenant abandons or vacates the Premises, Landlord,
at Landlord's option and without limiting Landlord in the exercise of any other
right or remedy Landlord may have on account of such default, will also have
the right to re-enter the Premises such re-entry shall not be deemed to
constitute Landlord's election to accept surrender of the Premises or to
relieve Tenant from liability for its breach of this Lease. No surrender of the
Premises shall be effective against Landlord unless Landlord has entered into a
written agreement with tenant in which Landlord expressly agrees to (a) accept
a surrender of the Premises and (b) relieve Tenant of liability under this
Lease. The deliver of keys to Landlord or any employee or agent of Landlord
shall not constitute the termination of the Lease or the surrender of the
Premises. Accordingly, if Landlord does not elect to terminate this Lease on
account of any default by Tenant, Landlord may, from time to time, without
terminating this Lease, enforce all of its rights and remedies under this
Lease, including the right to recover all rent as it becomes due.
20.6 The terms "rent" and "rental", as used in this
Section 20 and in any and all other provisions of this Lease, shall mean Base
Rent, Additional Rent and any and all other amounts payable by Tenant pursuant
to the provisions of this Lease.
20.7 All rights, powers and remedies of Landlord hereunder
and under any other agreement now or hereafter in force between Landlord and
Tenant shall be cumulative and not alternative and shall be in addition to all
rights, powers and remedies given to Landlord at law or in equity. The exercise
of any one or more of such rights or remedies shall not impair Landlord's right
to exercise any other right or remedy including, without limitation, any and
all rights and remedies of Landlord under Tennessee law.
20.8 Tenant hereby assigns and transfers to Landlord all
of Tenant's interest in all rent and income arising from any sublease
heretofore or hereafter made, and Landlord may collect such rent and income (or
appoint a receiver to collect such rent and income) and apply same toward
Tenant's obligations under this Lease; provided, however, that until Tenant
shall be in default hereunder, Tenant may receive, collect and enjoy the rent
and income accruing under such sublease.
20.9 To the extent permitted by law, Tenant hereby waives
all provisions of, or protection under, any decisions, statutes, rules,
regulations or other laws of the State of Tennessee to the extent same are
inconsistent and in conflict with specific terms and provisions hereof.
20.10 If at any time during the term hereof Tenant fails,
refuses or neglects to do any of the things herein provided to be done by
Tenant, Landlord shall have the right, but not the obligation, to do the same,
but at the expense and for the account of Tenant. The amount of any money so
expended or obligations so incurred by Landlord, together with interest thereon
at the Interest Rate, shall be repaid to Landlord within five (5) days of
Tenant's receipt of written notice, and unless so paid shall be added to the
next monthly rental payment coming due hereunder.
21. DEFAULT BY LANDLORD; LIMITATION OF LIABILITY.
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21.1 Landlord shall not be deemed to be in default
hereunder unless obligations required of Landlord hereunder are not performed
by Landlord, or by any beneficiary under any deed of trust, mortgagee, ground
lessor or other lienholder with rights in all or any portion of the Project,
within thirty (30) days after written notice thereof by Tenant to Landlord (or
such shorter time if any provided elsewhere in this Lease) and to such other
parties whose names and addresses are furnished to Tenant in writing, which
notice specifies that there has been a failure to perform such obligations;
provided, however, that if the nature of such obligations is such that more
than thirty (30) days are reasonably required for their cure, Landlord shall
not be deemed to be in default hereunder if Landlord or any of such other
parties commences such cure within such period and thereafter diligently
prosecutes such cure to completion within a reasonable time but, in no event,
more than one hundred twenty (120) days after such notice.
21.2 If Landlord is in default hereunder, which default is
not cured during any applicable cure periods, Tenant shall have all such rights
and remedies as may be afforded in this Lease or otherwise provided at law or
in equity, including, but not limited to, the right to terminate this Lease as
set forth in Section 2.1 for failure to deliver the Premises on a timely basis.
If Tenant obtains a judgment against Landlord, such judgment may be satisfied
only out of the proceeds of sale received upon execution of such judgment and
levy against the right, title and interest of Landlord in the Project and out
of the rent or other revenue receivable by Landlord from the Project or out of
any proceeds receivable by the Landlord from the sale or other disposition of
all or any portion of Landlord's right, title and interest in the Project.
Neither Landlord nor any of the partners comprising Landlord shall be
personally liable for any deficiency or otherwise.
22. DAMAGE AND DESTRUCTION.
22.1 If the Premises or the Project is damaged by an
insured casualty, occurring more than six (6) months prior to the expiration of
the term hereof, Landlord shall forthwith repair same, or cause same to be
repaired, to the extent that insurance proceeds are made available to Landlord
therefor and provided that such repairs can, in Landlord's reasonable opinion,
be made within ninety (90) days from the date of such damage (without payment
of overtime or other premiums) under the laws and regulations of the federal,
state and local governmental authorities having jurisdiction thereof. Tenant
hereby acknowledges that Landlord's right to proceeds under the property
insurance policies described in Section 12.2. above shall be subject to the
rights of any mortgagees, trust deed holders or other secured parties having an
interest in the Building. If Landlord is not so required to repair such damage,
Landlord shall have the option within thirty (30) days from the date of such
damage either to (i) notify Tenant of Landlord's election to repair such
damage, in which event Landlord shall thereafter repair same, or (ii) notify
Tenant of Landlord's election to immediately terminate this Lease, in which
event this Lease shall be so terminated. Landlord shall refund to Tenant any
rent previously paid for any period of time subsequent to such termination.
Notwithstanding any contrary provision herein, and regardless of whether caused
by casualty, (a) Landlord shall not be required to repair any damage to the
property of Tenant or to repair or replace any paneling, decorations, railings,
floor coverings, alterations, additions, fixtures or improvements installed on
the Premises by or at the expense of Tenant, and (b) any damage caused by the
negligence or willful misconduct of Tenant or any of its agents, contractors,
employees, invitees or guests shall be promptly repaired by Tenant, at its sole
cost and expense, to the reasonable satisfaction of Landlord.
22.2 If Landlord repairs damage to the Premises pursuant
to the provisions of Section 22.1. above, Base Rent and Additional Rent payable
hereunder until such repairs are completed shall be abated in the proportion
that the rentable area of the portion, if any, of the Premises rendered
unusable by Tenant (and therefore not used thereby) bears to the rentable area
of the Premises; a material portion of the Premises is so rendered unusable for
more than fifteen (15) consecutive business days after notice thereof by Tenant
to Landlord. Except for such rental abatement, Tenant shall have no claim
against Landlord with respect to any such damage or repairs.
23. EMINENT DOMAIN.
If the entire Premises, or so much thereof (but not less
than 25% of the rentable area of the Premises) as to render the balance thereof
not reasonably usable for the conduct of
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Tenant's business, shall be taken or appropriated under the power of eminent
domain or conveyed in lieu thereof, either party hereto may, by serving written
notice upon the other party hereto within thirty (30) days thereafter,
immediately terminate this Lease. If any substantial part of the Project
excluding the Premises shall be taken or appropriated under the power of
eminent domain or conveyed in lieu thereof, Landlord may so terminate this
Lease. In either of such events, Landlord shall receive (and Tenant shall
assign to Landlord upon demand by Landlord) any income, rent, award or any
interest therein which may be paid in connection therewith, and Tenant shall
have no claim against Landlord for any part of any sum so paid, whether or not
attributable to the value of the unexpired term of this Lease. If a part of the
Premises shall be so taken, appropriated or conveyed and neither party hereto
shall elect to so terminate this Lease, (a) Base Rent and Additional Rent
payable hereunder shall be abated in the proportion that the rentable area of
the portion of the Premises so taken, appropriated or conveyed bears to the
rentable area of the entire Premises, and (b) if the Premises shall have been
damaged as a consequence of such partial taking, appropriation or conveyance,
Landlord shall, to the extent of any severance damages received by Landlord,
restore the Premises continuing under this Lease; provided, however, that
Landlord shall not be required to repair or restore any damage to the property
of Tenant or to make any repairs to or restoration of any alterations,
additions, fixtures or improvements installed on the Premises by or at the
expense of Tenant, and Tenant shall pay any amount in excess of such severance
damages required to complete such repairs or restoration. Notwithstanding
anything to the contrary contained in this Section, if the temporary use or
occupancy of any part of the Premises shall be taken or appropriated under the
power of eminent domain or conveyed in lieu thereof during the term of this
Lease, this Lease shall be and remain unaffected by such taking, appropriation
or conveyance and Tenant shall continue to pay in full all rent payable
hereunder by Tenant during the term of this Lease; in the event of any such
temporary taking, appropriation or conveyance, Tenant shall be entitled to
receive a separate award (not reducing Landlord's award) as compensation for
loss of the use or occupancy of the Premises during the term of this Lease.
24. SALE BY LANDLORD.
If Landlord sells or transfers all or any portion of the
Project, including the Premises, Landlord shall, upon consummation of such sale
or transfer, be released from any liability relating to obligations or
covenants thereafter to be performed or observed under this Lease, and in such
event Tenant agrees to look solely to Landlord's successor in interest with
respect to any such liability provided that such release shall be effective
only if and to the extent that Landlord has fully paid and discharged any and
all liabilities and obligations owing by Landlord to Tenant prior to such
transfer, excluding, however, any of such liabilities and obligations which are
the subject of good faith contests or disputes. Landlord shall remain fully
liable for all such obligations until such are paid in full subject, in all
cases, to Landlord's right to dispute, in good faith, any of such obligations.
Landlord may transfer or credit any security deposit or prepaid rent to
Landlord's successor in interest, and upon such transfer or credit Landlord
shall be discharged from any further liability therefor.
25. SURRENDER OF PREMISES.
Tenant shall, upon the expiration or sooner termination of
the term hereof, surrender to Landlord the Premises, and all repairs, changes,
alterations, additions and improvements thereto, in good and first class order,
condition and repair, ordinary wear and tear excepted, clean and free of
debris. Tenant shall, upon the expiration or sooner termination of the term
hereof, and at Tenant's sole cost and expense, remove all movable furniture,
equipment and other personal property belonging to Tenant. Tenant shall
immediately, at its sole cost and expense, repair any damage caused by the
removal of any property. Tenant shall, upon the expiration or sooner
termination of the term hereof, deliver to Landlord all keys to all doors in,
upon and about the Premises including, but not limited to, all keys to any
vault or safe to remain on the Premises.
26. QUIET ENJOYMENT.
So long as Tenant is not in default hereunder, Tenant shall
have the right to the quiet and peaceful enjoyment and possession of the
Premises and the common areas during the term of this Lease, subject to the
terms and conditions of this Lease.
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27. NOTICES.
Any notice, demand or other communication given under the
provisions of this Lease by either party hereto to the other party hereto shall
be effective only if in writing and (a) personally served, (b) mailed by United
States registered or certified mail, return receipt requested, postage prepaid,
or (c) sent by a nationally recognized courier service (such as Fed Ex) for
next-day delivery, to be confirmed in writing by such courier, addressed as set
forth in the Basic Lease Information. In the event that a different address is
furnished by either party hereto to the other party hereto in writing, notices,
demands and other communications shall thereafter be sent or delivered to the
new address. Notices, demands and other communications given in the foregoing
manner shall be deemed given when actually received or refused by the party to
whom sent, unless mailed, in which event same shall be deemed given on the day
of actual delivery as shown by the addressee's registered or certified mail
receipt or at the expiration of the third (3rd) business day after the date of
mailing, whichever first occurs.
28. TAXES PAYABLE BY TENANT.
Unless properly contested by Tenant in good faith, Tenant
shall pay before delinquency all taxes, assessments, license fees and other
charges (collectively, "taxes") that are levied and assessed against Tenant's
trade fixtures and other personal property installed or located in or on the
Premises, and that become payable during the term. On demand by Landlord,
Tenant shall furnish Landlord with satisfactory evidence of such payments. If
any taxes on Tenant's personal property are levied against Landlord or
Landlord's property, or if the assessed value of the Building and other
improvements in which the Premises are located is increased by the inclusion of
a value placed on Tenant's personal property or leasehold improvements, as
determined by Landlord, and if Landlord pays the taxes on any of these items or
the taxes based on the increased assessment of these items, Tenant, on demand,
shall immediately reimburse Landlord for the sum of the taxes levied against
Landlord, or the proportion of the taxes resulting from the increase in
Landlord's assessment. Landlord shall have the right to pay these taxes
regardless of the validity of the levy.
29. INTEREST AND LATE CHARGES.
Any amount not paid by Tenant to Landlord when due hereunder
shall bear interest at a rate (the "Interest Rate") equal to the lesser of (a)
the prime rate per annum as announced by Citibank, N.A. on the date on which
the subject payment becomes delinquent plus two (2) percentage points, or (b)
the maximum rate permitted by law, from the due date until paid, unless
otherwise specifically provided herein, but the payment of such interest shall
not excuse or cure any such failure by Tenant under this Lease. The parties
agree that it would be impracticable and extremely difficult to fix Landlord's
actual damages in such event. Such interest and late charges are separate and
cumulative and are in addition to and shall not diminish or represent a
substitute for any or all of Landlord's rights or remedies under any other
provision of this Lease.
30. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Sections 10 and 24 above,
the terms, covenants and conditions contained herein shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
31. ATTORNEYS' FEES.
In any litigation or other action arising herefrom between
any of the parties hereto, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs incurred therein. The term "prevailing
party" means the party obtaining substantially the relief sought, whether by
compromise, settlement or judgment.
32. LIGHT AND AIR.
Tenant covenants and agrees that no diminution of light, air
or view by any structure which may hereafter be erected (whether or not by
Landlord) shall entitle Tenant to any reduction of rent under this Lease,
result in any liability of Landlord to Tenant, or in any other
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way affect this Lease or Tenant's obligations hereunder.
33. SIGNS AND IDENTITY.
INTENTIONALLY DELETED
34. WAIVER.
If Landlord waives the performance of any term, covenant
or condition contained in this Lease, such waiver shall not be deemed to be a
waiver of any other breach of the same or of any other term, covenant or
condition contained herein. Furthermore, the acceptance of any payments due
from one party to the other shall not constitute a waiver of any preceding
breach by such party of any term, covenant or condition of this Lease, other
than the failure of Tenant to pay the particular amount so accepted, regardless
of knowledge of such preceding breach at the time such payment was accepted.
Failure by either party to enforce any of the terms, covenants or conditions of
this Lease for any length of time shall not be deemed to waive or to affect the
right of such party to insist thereafter upon strict performance. Waiver by
either party of any term, covenant or condition contained in this Lease may
only be made by a written document signed by such party.
35. BROKERS.
Landlord has entered into an agreement with the real estate
broker specified as Landlord's broker in the Basic Lease Information
("Landlord's Broker") pursuant to which Landlord has granted to Landlord's
Broker the exclusive right to lease space in the Building. Landlord shall pay
any commissions or fees that are payable to Landlord's Broker with respect to
this Lease in accordance with the provisions of a separate commission contract.
Landlord shall have no further or separate obligation for payment of
commissions or fees to any other real estate broker, finder or intermediary.
Tenant represents that it has not had any dealings with any real estate broker,
finder or intermediary with respect to this Lease, other than Landlord's Broker
and Tenant's broker ("Tenant's Broker"), if any, specified in the Basic Lease
Information. Any commissions or fees payable to Tenant's Broker with respect to
this Lease shall be paid exclusively by Landlord's Broker and/or Tenant.
Subject to the foregoing, each party hereto shall indemnify and hold harmless
the other party hereto from and against any and all damages, liabilities,
losses, costs and expenses (including, but not limited to, reasonable
attorneys' fees and related costs) resulting from any claims that may be
asserted against such other party by any real estate broker, finder or
intermediary arising from any act of the indemnifying party in connection with
this Lease.
36. AUTHORITY.
If Tenant is a corporation, trust or partnership, Tenant
represents and warrants that the party executing this instrument is duly
authorized to so execute and deliver this Lease. If Tenant is a corporation,
trust or partnership, it shall, within ten (10) days after execution of this
Lease, deliver to Landlord satisfactory evidence of such authority. If Tenant
is a corporation, it shall, upon demand by Landlord, also deliver to Landlord
satisfactory evidence of (a) good standing in Tenant's state of incorporation,
and (b) qualification to do business in Tennessee.
37. MISCELLANEOUS.
37.1 Landlord shall make available to Tenant, without
charge, six (6) keys to the Premises. Tenant shall pay for any additional keys
made available by Landlord.
37.2 Any voluntary or other surrender of this Lease by
Tenant, mutual termination hereof or termination hereof by Landlord shall not
work a merger, and shall, at the option of Landlord, terminate all or any
existing subleases or subtenancies, or may, at the option of Landlord, operate
as an assignment to Landlord of any or all such subleases or subtenancies. No
act or omission of Landlord or any representative thereof shall be deemed to
constitute acceptance of any surrender, and no surrender shall be deemed to
have occurred, unless in a writing executed by Landlord and approved in writing
by the mortgagee under any first mortgage or the beneficiary under any first
deed of trust, as the case may be, encumbering the Building.
37.3 A memorandum hereof, including Tenant's rights of
first offer with respect to
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certain leased premises within the Building and Tenant's right of first refusal
to purchase the Project, shall be recorded.
37.4 Rent and all other sums payable under this Lease
must be paid in lawful money of the United States of America.
37.5 None of Landlord's rights or remedies hereunder
shall be deemed to be exclusive, but shall, wherever possible, be cumulative
with all other rights and remedies hereunder and at law and in equity.
37.6 Except as otherwise provided herein, whenever in
this Lease a consent is to be granted by either Landlord or Tenant, such
provisions shall be deemed to include language to the effect that such consent
shall not be unreasonably withheld, delayed or conditioned by the party
required to grant or deny such consent. If consent is to be withheld, the party
withholding such consent shall, upon request, provide a written statement
specifying the reasons for withholding such consent and identifying alternative
circumstances, if any, under which such consent might be obtained.
37.7 This Lease may be executed in counterparts with the
same effect as if both parties hereto had executed the same document. Both
counterparts shall be construed together and shall constitute a single lease.
37.8 Nothing contained in this Lease shall be construed
to create the relationship of principal and agent, partnership, joint venture
or any other relationship between the parties hereto, other than the
relationship of landlord and tenant.
37.9 Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof, and such other provisions shall remain in full force and
effect.
37.10 The term "Premises" shall be deemed to include
(unless, based on the context, such meaning would be clearly unintended) the
space demised and improvements now or at any time hereafter comprising or built
in such space.
37.11 The term "Tenant" or any pronoun used in place
thereof shall indicate and include the masculine or feminine, the singular or
plural number, individuals, firms or corporations.
37.12 The section headings herein are for convenience of
reference only and shall in no way define, increase, limit or describe the
scope or intent of any provision of this Lease.
37.13 In any case where this Lease is entered into by
co-tenants, the obligations of such co-tenants hereunder shall be joint and
several.
37.14 Time is of the essence of this Lease and all of its
provisions.
37.15 This Lease shall in all respects be governed by the
laws of the State of Tennessee. In any action or proceeding arising herefrom,
Tenant hereby consents to the jurisdiction of any competent court within the
State of Tennessee and to service of process by any means authorized by
Tennessee law.
37.16 This Lease contains the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes any
previous negotiations. There have been no representations made by Landlord or
any representative thereof or understandings made between the parties other
than those set forth in this Lease.
37.17 This Lease may not be modified except by a written
document executed by the parties hereto.
37.18 Neither Landlord nor any broker, agent or representative
thereof has made any warranty or representation with respect to the tenant mix
of the Building, the identity of prospective or other tenants of the Building,
or profitability.
37.19 If any guarantee of this Lease is required by
Landlord, such guarantee shall be in form and content acceptable to Landlord.
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37.20 The words "person" and "persons" as used herein
shall include individuals, firms, partnerships, associations and corporations.
37.21 The language in all parts of this Lease shall be in
all cases construed simply according to its fair meaning, and not strictly for
or against Landlord or Tenant. Any reference to any Section herein shall be
deemed to include all subsections thereof unless otherwise specified or
reasonably required from the context. Any reference to "days" or "months"
herein shall refer to calendar days or months, respectively, unless
specifically provided to the contrary. Unless clearly inconsistent with the
context, any reference herein to "the term hereof" or "the term of this Lease"
shall refer to the term of this Lease as the same may be extended pursuant to
any extension options(s) contained herein. The terms "herein", "hereunder" and
"hereof" as used in this Lease shall mean "in this Lease", "under this Lease"
and "of this Lease", respectively, except as otherwise specifically set forth
in this Lease.
37.22 Any and all exhibits and addenda referred to in this
Lease are incorporated herein by reference as though fully set forth herein.
37.23 Tenant hereby acknowledges and agrees that the
exterior walls of the Building and the area between the finished ceilings of
the Premises and the slab of the floor of the Building thereabove have not been
demised hereby. Except as reasonably necessary for the installation,
maintenance, repair or replacement of certain of the Tenant's personal property
including but not limited to wiring, conduits, electrical or electronic
equipment, computer hardware, servers, cables, or other equipment and
facilities used or useable in Tenant's business, the use thereof, together with
the right to install, maintain, use, repair and replace pipes, ducts, conduits
and wires leading through, under or above the Premises, is hereby excepted and
reserved unto Landlord. To accommodate Tenant's rights relative to such areas,
Landlord grants to Tenant a non-exclusive license to access such areas from
time to time as necessary for the foregoing purposes provided that Tenant shall
be responsible for any damage caused by such access and shall not alter any
Building systems in such areas without Landlord's consent.
37.24 Tenant and Landlord hereby warrants and represents
that neither its execution of nor performance under this Lease shall cause it
to be in violation of any agreement, instrument, contract, law, rule or
regulation by which either is bound, and each agrees to indemnify the other
against any loss, cost, damage or liability including, without limitation,
reasonable attorneys' fees arising out of such breach of this warranty and
representation.
37.25 Rent shall not be abated, nor may this Lease be
termin |
