Illinois-Bedford Park-6112 West 73rd Street Lease - Cabot Industrial Properties LP and SalesLink Corp.
CABOT INDUSTRIAL PROPERTIES, L.P.
INDUSTRIAL REAL ESTATE LEASE
MULTI-TENANT NET FORM
TABLE OF CONTENTS
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Article Page
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ONE: BASIC TERMS................................................ 2
TWO: PREMISES................................................... 5
THREE: LEASE TERM................................................. 5
FOUR: RENT....................................................... 6
FIVE: PROPERTY TAXES............................................. 7
SIX: UTILITIES.................................................. 8
SEVEN: INSURANCE.................................................. 8
EIGHT: COMMON AREAS............................................... 10
NINE: USE OF PREMISES............................................ 12
TEN: CONDITION AND MAINTENANCE OF PREMISES...................... 14
ELEVEN: DAMAGE OR DESTRUCTION...................................... 16
TWELVE: CONDEMNATION............................................... 17
THIRTEEN: ASSIGNMENT AND SUBLETTING.................................. 17
FOURTEEN: DEFAULTS AND REMEDIES...................................... 19
FIFTEEN: PROTECTION OF LENDERS...................................... 21
SIXTEEN: LEGAL COSTS................................................ 22
SEVENTEEN: MISCELLANEOUS PROVISIONS................................... 22
EIGHTEEN: TENANT IMPROVEMENT ALLOWANCE............................... 26
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ARTICLE ONE: BASIC TERMS
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The following terms used in this Lease shall have the meanings set forth below.
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1.01 DATE OF LEASE: September 1, 1998
1.02 LANDLORD (LEGAL ENTITY): Cabot Industrial Properties, L.P.
1.03 TENANT (LEGAL ENTITY): SalesLink Corporation, a Delaware corporation
1.04 TENANT'S GUARANTOR: CMG Information Services, Inc.
1.05 ADDRESS OF PROPERTY: 6112 West 73rd Street, Bedford Park, Illinois
1.06 APPROXIMATE SIZE OF PROPERTY: 232,872 rentable square feet
1.07 APPROXIMATE SIZE OF PREMISES: 80,239 rentable square feet
1.08 TENANT'S INITIAL PRORATA SHARE: 34.46%
1.09 LEASE TERM: One hundred twenty (120) full calendar months
1.10 LEASE COMMENCEMENT DATE: March 1, 1999
1.11 LEASE EXPIRATION DATE: February 28, 2009
1.12 PERMITTED USES: General office and warehouse use, provided any such use shall be
compliant with applicable zoning laws and the terms of this Lease
1.13 BROKER(S): Darwin Realty & Development, Midwest Commercial Real Estate
1.14 INITIAL SECURITY DEPOSIT: $125,000.00 Letter of Credit, subject to adjustment as described
in Section 17.16
1.15 PARKING SPACES ALLOCATED TO TENANT: Those certain spaces located in Area 1 as generally shown on
Exhibit A-1 attached hereto
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Monthly
Period Annual Base Rent Installment
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March 1, 1999 - $254,357.63 $21,196.47
February 29, 2000
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March 1, 2000 - $261,352.46 $21,779.37
February 28, 2001
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1.16 BASE RENT:
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Monthly
Period Annual Base Rent Installment
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March 1, 2001 - $268,539.66 $22,378.30
February 28, 2002
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March 1, 2002 - $275,924.50 $22,993.71
February 28, 2003
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March 1, 2003 - $283,512.42 $23,626.03
February 29, 2004
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March 1, 2004 - $291,309.01 $24,275.75
February 28, 2005
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March 1, 2005 - $299,320.01 $24,943.33
February 28, 2006
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March 1, 2006 - $307,551.31 $25,629.28
February 28, 2007
================================================================================
March 1, 2007 - $316,008.97 $26,334.08
February 29, 2008
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March 1, 2008 - $324,699.22 $27,058.27
February 28, 2009
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1.17 OTHER CHARGES PAYABLE BY TENANT: (i) Real Property Taxes (Article Five);
(ii) Utilities (Article Six);
(iii) Insurance Premiums (Article Seven);
(iv) CAM Expenses (Article Eight);
1.18 ADDRESS OF LANDLORD FOR NOTICES: c/o Cabot Industrial Trust
Two Center Plaza - Suite 200
Boston, MA 02108-1906
Attention: Mr. Bradley McGill
1.19 ADDRESS OF TENANT FOR NOTICES: SalesLink Corporation
6112 West 73rd Street
Bedford Park, Illinois
Attention: Mr. Keith Litterick
With a copy to: SalesLink Corporation
25 Drydock Avenue
Boston, MA 02210
Attention: Mr. Richard F. Torre
And a copy of all default notices Palmer & Dodge LLP
to: One Beacon Street
Boston, MA 02108
Attention: William Williams, II, Esq.
1.20 EXHIBITS: A: The Property
A-1: Tenant's Parking Spaces
B: The Premises
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C: Rules & Regulations
D: Letter of Credit
E: Memorandum of Acceptance of
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ARTICLE TWO: PREMISES
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2.01 PREMISES. The Premises are described in Exhibit B and are a part of the
Property, which is described in Exhibit A. The Property includes all the land,
building(s), and all other improvements located on the land including the common
areas described in Article Eight, and all easements and appurtenant rights
related to Tenant's use of the Premises as provided in this Lease.
ARTICLE THREE: LEASE TERM
-------------------------
3.01 LEASE OF PREMISES FOR LEASE TERM. Landlord leases the Premises to Tenant
and Tenant leases the Premises from Landlord for the Lease Term. The Lease Term
shall be the period stated in Article One and shall begin on the Lease
Commencement Date set forth in Article One. Notwithstanding the provisions of
Article 1.10 above, Landlord agrees to grant to Tenant possession of the office
portion of the Premises no later than October 1, 1998 and to grant to Tenant
possession of the warehouse portion of the Premises no later than December 1,
1998. Upon written request of Tenant, Landlord agrees to use diligent efforts
to accelerate the respective date of possession of the office and warehouse
portions of the Premises, subject to Landlord's ability to cause the current
occupant of any portion of such space to timely surrender such space in
accordance with such occupant's current agreement with Landlord.
3.02 DELAY IN COMMENCEMENT. Landlord shall not be liable to Tenant if Landlord
shall not deliver possession of all portions of the Premises to Tenant by March
1, 1999. Landlord's non-delivery of all portions of the Premises to Tenant on or
before that date shall not affect this Lease or the obligations of Tenant under
this Lease, except that the Lease Commencement Date shall be postponed by the
number of days in the period commencing from and after December 1, 1998 to the
date possession of all portions of the Premises shall be delivered to Tenant,
and the Expiration Date shall be extended to the last day of the 120th full
calendar month following such deferred Lease Commencement Date. Immediately
prior to the Lease Commencement Date, Landlord and Tenant shall execute an
amendment to this Lease setting forth the Lease Commencement Date and Expiration
Date of this Lease. Failure to execute such amendment shall not affect the
Lease Commencement Date and Expiration Date of this Lease. Notwithstanding the
foregoing, in the event Landlord has not delivered possession of all portions of
the Premises to Tenant on or before March 1, 1999, Tenant may, upon written
notice to Landlord, terminate this Lease, and thereupon this Lease shall
terminate, and all deposits (including the Letter of Credit) shall be returned
to Tenant as soon as practicable thereafter.
3.03 EARLY OCCUPANCY. If Tenant shall occupy the Premises prior to the Lease
Commencement Date, Tenant's occupancy of the Premises shall be subject to all of
the provisions of this Lease. Early occupancy of the Premises shall not advance
the Expiration Date of this Lease. Notwithstanding the foregoing, Tenant shall
not be obligated to pay any Base Rent prior to the Lease Commencement Date, but
Tenant shall be obligated to pay Additional Rent pursuant to Section 4.02 during
the ninety-day period preceding the Lease Commencement Date.
3.04 HOLDING OVER. Tenant shall vacate the Premises upon the Expiration Date
or earlier termination of this Lease. Tenant shall reimburse Landlord for and
indemnify Landlord against all reasonably foreseeable damages, costs,
liabilities and expenses, including attorneys' fees, which Landlord shall incur
on account of Tenant's delay in so vacating the Premises, except to the extent
any such delay arises out of any act or omission of Landlord and anyone for
whose acts the Landlord is responsible. If Tenant shall not vacate the Premises
upon the Expiration Date or earlier termination of this Lease, the Base Rent
shall be increased to 200% of the Base Rent then in effect and Tenant's
obligation to pay Additional Rent shall continue, but nothing herein shall limit
any of Landlord's rights or Tenant's
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obligations arising from Tenant's failure to vacate the Premises, including,
without limitation, Landlord's right to repossess the Premises and remove Tenant
therefrom at any time after the Expiration Date or earlier termination of this
Lease and Tenant's obligation to reimburse and indemnify Landlord as provided in
the preceding sentence.
ARTICLE FOUR: RENT
------------------
4.01 BASE RENT. Commencing on the Lease Commencement Date, and on the first
day of each month thereafter during the Lease Term, Tenant shall pay to Landlord
the Base Rent as described in Section 1.15 in lawful money of the United States,
in advance and without offset, deduction, or prior demand. The Base Rent shall
be payable at Landlord's address or at such other place or to such other person
as Landlord may designate in writing from time to time. The amount of Base Rent
due for partial months shall be prorated accordingly.
4.02 ADDITIONAL RENT. Commencing on the Lease Commencement Date, all sums
payable by Tenant under this Lease other than Base Rent shall thereafter be
payable to Landlord and be deemed "Additional Rent;" the term "Rent" shall mean
Base Rent and Additional Rent. Landlord shall estimate in advance (which
estimate shall be in writing and forwarded to Tenant in advance) and charge to
Tenant the following costs, to be paid on a monthly basis throughout the Lease
Term: (i) all Real Property Taxes for which Tenant is liable under Section 5.01
and 5.02 of the Lease, (ii) all utility costs (if utilities are not separately
metered) for which Tenant is liable under Section 6.01 of the Lease, (iii) all
insurance premiums for which Tenant is liable under Sections 7.01 and 7.06 of
the Lease, (iv) all CAM Expenses for which Tenant is liable under Section 8.04
of the Lease. Collectively, the aforementioned Real Property Taxes, insurance,
utility, and CAM Expenses shall be referred to as the "Total Operating Costs."
Landlord may adjust its estimates of Total Operating Costs at any time based
upon Landlord's experience and reasonable anticipation of costs. Such
adjustments shall be effective as of the next Rent payment date after written
notice to Tenant. Within 120 days after the end of each fiscal year (which
shall be December 31st for this Lease) during the Lease Term, Landlord shall
deliver to Tenant a statement prepared in accordance with generally accepted
accounting principles setting forth, in reasonable detail, the Total Operating
Costs paid or incurred by Landlord during the preceding fiscal year and Tenant's
Pro Rata Share of such expenses. Within thirty (30) days after Tenant's receipt
of such statement and invoices and other documentation in support thereof, there
shall be an adjustment between Landlord and Tenant, with payment to or credit
given by Landlord (as the case may be) in order that Landlord shall receive the
entire amount of Tenant's share of such costs and expenses for such period. In
addition to its obligation to pay Base Rent and its Pro Rata Share of Total
Operating Costs, Tenant is required hereunder to pay directly to suppliers,
vendors, carriers, contractors, etc. certain insurance premiums, utility costs,
personal property taxes, maintenance and repair costs and other expenses,
collectively "Additional Expenses." If Landlord pays for any Additional
Expenses in accordance with the terms of this Lease, Tenant's obligation to
reimburse such costs shall be an Additional Rent obligation payable in full with
the next monthly Rent payment. Unless this Lease provides otherwise, Tenant
shall pay all Additional Rent then due with the next monthly installment of Base
Rent.
4.03 LATE CHARGE. Tenant hereby acknowledges that late payment by Tenant to
Landlord of Rent and other amounts due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any loan secured by the Building. Accordingly, if any
installment of Rent or any other sums due from Tenant shall not be received by
Landlord within five days following the due date, Tenant shall pay to
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Landlord a late charge equal to five percent of such overdue amount. The parties
hereby agree that such late charge represents a fair and reasonable estimate of
the costs Landlord will incur by reason of late payment by Tenant. Acceptance of
such late charge by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
4.04 INTEREST. Any Rent or other amount due to Landlord, if not paid within
five days after due, shall bear interest from the date due until paid at the
rate of 10% per annum, provided that interest shall not be payable on late
charges incurred by Tenant nor on any amounts upon which late charges are paid
by Tenant to the extent such interest would cause the total interest to be in
excess of that legally permitted. Payment of interest shall not excuse or cure
any default hereunder by Tenant.
4.05 TENANT'S PRO RATA SHARE. Tenant's Pro Rata Share shall be calculated by
dividing the rentable square foot area of the Premises, as set forth in Section
1.07, by the rentable square foot area of the Property, as set forth in Section
1.06, which is leased or held for lease by tenants, as of the date on which the
computation shall be made. Tenant's initial Pro Rata Share is set forth in
Section 1.08 and is subject to adjustment based on the aforementioned formula.
Landlord agrees to use the same measurement method for all tenant space in the
Property.
ARTICLE FIVE: PROPERTY TAXES
----------------------------
5.01 REAL PROPERTY TAXES. Tenant shall pay Tenant's Pro Rata Share of Real
Property Taxes on the Property payable during the Lease Term. Tenant shall make
such payments to Landlord in accordance with Section 4.02. If Landlord shall
receive a refund of any Real Property Taxes with respect to which Tenant shall
have paid Tenant's Pro Rata Share, Landlord shall refund to Tenant Tenant's Pro
Rata Share of such refund after deducting therefrom the costs and expenses
reasonably incurred in connection therewith.
5.02 DEFINITION OF "REAL PROPERTY TAXES." "Real Property Taxes" shall mean
taxes, assessments (special, betterment, or otherwise), levies, fees, rent
taxes, excises, impositions, charges water and sewer rents and charges, and all
other government levies and charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, which are imposed or levied upon or
assessed against the Property or any Rent or other sums payable by any tenants
or occupants thereof to the extent any of the foregoing are not included in CAM
Expenses pursuant to Article Eight below. Real Property Taxes shall include
Landlord's costs and expenses reasonably incurred in contesting any Real
Property Taxes. If at any time during the term the present system of ad valorem
taxation of real property shall be changed so that in lieu of the whole or any
part of the ad valorem tax on real property, or in lieu of increases therein,
there shall be assessed on Landlord a capital levy or other tax on the gross
rents received with respect to the Property or a federal, state, county,
municipal, or other local income, franchise, excise or similar tax, assessment,
levy, or charge (distinct from any now in effect) measured by or based, in whole
or in part, upon gross rents, then all of such taxes, assessments, levies, or
charges, to the extent so measured or based ("Substitute Taxes"), shall be
deemed to be a Real Property Taxes.
5.03 PERSONAL PROPERTY TAXES. Tenant shall pay directly all taxes charged
against trade fixtures, furnishings, equipment, inventory, or any other personal
property belonging to Tenant. Tenant shall use its best efforts to have
personal property taxed separately from the Property. If any of Tenant's
personal property shall be taxed with the Property, Tenant shall pay Landlord
the taxes for such personal property within fifteen (15) days after Tenant
receives a written statement from Landlord for such personal property taxes.
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ARTICLE SIX: UTILITIES
----------------------
6.01 UTILITIES. Tenant shall promptly pay, directly to the appropriate
supplier, the cost of all natural gas, heat, cooling energy, light, power, sewer
service, telephone, water, refuse disposal and other utilities and services
supplied to the Premises, allocable to the Lease Term together with any related
installation or connection charges or deposits (collectively "Utility Costs").
If any services or utilities are jointly metered with other premises, Landlord
shall make a reasonable determination of Tenant's proportionate share of the
such Utility Costs and Tenant shall pay such share to Landlord in accordance
with Section 4.02. Landlord shall not be liable for damages, consequential or
otherwise, nor shall there be any rent abatement arising out of any curtailment
or interruption whatsoever in utility services. Utilities serving the Common
Areas (as defined in Article Eight) exclusively shall be accounted for as
described in Article Eight. Notwithstanding the foregoing, in the event any
such interruption or discontinuance in the furnishing of the foregoing services
pursuant to this Article 6 was within the reasonable control of Landlord to
prevent or correct and continues beyond five (5) consecutive business days after
written notice to Landlord and materially and adversely affects Tenant's ability
to conduct its business in the Premises, or any portion thereof, and on account
thereof Tenant ceases doing business in the Premises, or such portion thereof,
Base Rent and rent adjustments shall thereafter equitably abate for so long as
and to the extent Tenant's ability to conduct its business in the Premises or
such portion thereof is so affected.
ARTICLE SEVEN: INSURANCE
------------------------
7.01 LIABILITY INSURANCE. From the time Tenant shall first enter the Premises,
throughout the Lease Term and thereafter as long as Tenant shall remain in the
Premises (collectively, "the Occupancy Period"), Tenant shall maintain in effect
commercial general liability insurance insuring Tenant against liability for
bodily injury, property damage (including loss of use of property) and personal
injury at the Premises, including contractual liability. Such insurance shall
name Landlord, its property manager, any mortgagee of which Landlord gives
Tenant written notice, and Cabot Partners Limited Partnership, as additional
insureds. The initial amount of such insurance shall be Three Million Dollars
($3,000,000) per occurrence and shall be subject to reasonable periodic
increases specified by Landlord based upon inflation, increased liability
awards, recommendation of Landlord's professional insurance advisers, and other
relevant factors. The liability insurance obtained by Tenant under this Section
7.01 shall (i) be primary; and (ii) insure Tenant's obligations to Landlord
under Section 7.09. The amount and coverage of such insurance shall not limit
Tenant's liability nor relieve Tenant of any other obligation under this Lease.
Landlord may also obtain commercial general liability insurance in an amount and
with coverage determined by Landlord insuring Landlord against liability with
respect to the Premises and the Property. The policy obtained by Landlord shall
not provide primary insurance, shall not be contributory and shall be excess
over any insurance maintained by Tenant.
7.02 WORKER'S COMPENSATION INSURANCE. During the Occupancy Period, Tenant
shall maintain in effect Worker's Compensation Insurance (including Employers'
Liability Insurance) in the statutory amount covering all employees of Tenant
employed or performing services at the Premises, in order to provide the
statutory benefits required by the laws of the state in which the Premises are
located.
7.03 AUTOMOBILE LIABILITY INSURANCE. During the Occupancy Period, Tenant shall
maintain in effect Automobile Liability Insurance, including but not limited to,
passenger liability, on all owned, non-owned, and hired vehicles used in
connection with the Premises, with a combined single limit per occurrence of not
less than One Million Dollars ($1,000,000) per vehicle for injuries or death of
one or more persons or loss or damage to property.
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7.04 PERSONAL PROPERTY INSURANCE. During the Occupancy Period, Tenant shall
maintain in effect Personal Property Insurance covering leasehold improvements
paid for by Tenant and Tenant's personal property and fixtures from time to time
in, on, or at the Premises, in an amount not less than 100% of the full
replacement cost, without deduction for depreciation, providing protection
against events protected under "All Risk Coverage," as well as against sprinkler
damage, vandalism, and malicious mischief. Any proceeds from the Personal
Property Insurance shall be used for the repair or replacement of the property
damaged or destroyed, unless this Lease is terminated under an applicable
provision herein. If the Premises are not repaired or restored following damage
or destruction in accordance with other provisions herein, Landlord shall
receive any proceeds from the Personal Property Insurance allocable to Tenant's
leasehold improvements.
7.05 [Intentionally Deleted]
7.06 PROPERTY AND RENTAL INCOME INSURANCE. During the Lease Term, Landlord
shall maintain in effect all risk insurance covering loss of or damage to the
Property in the amount of its full replacement value with such endorsements and
deductibles as Landlord shall reasonably determine from time to time and which
are customarily held by owners of property similar to the Property. Landlord
shall have the right to obtain flood, earthquake, and such other insurance as
Landlord shall reasonably determine from time to time or shall be required by
any lender holding a security interest in the Property. Landlord shall not
obtain insurance for Tenant's fixtures or equipment or building improvements
installed by Tenant. During the Lease Term, Landlord shall also maintain a
rental income insurance policy, with loss payable to Landlord, in an amount
equal to one (1) year's Base Rent, plus estimated Real Property Taxes, CAM
Expenses, Utility Costs and insurance premiums for one (1) year. Tenant shall
be liable for the payment of any deductible amount under Landlord's insurance
maintained pursuant to this Article Seven, in an amount not to exceed Twenty-
Five Thousand Dollars ($25,000). Tenant shall not do or permit anything to be
done which shall invalidate any such insurance.
7.07 PAYMENT OF INSURANCE PREMIUMS. Landlord shall pay the premiums of the
insurance policies maintained by Landlord under Section 7.06 and Section 7.01
(if applicable), and Tenant shall reimburse Landlord for Tenant's Pro Rata Share
of such premiums in accordance with Section 4.02. Tenant shall pay directly the
premiums of the insurance policies maintained by Tenant under Sections 7.01,
7.02, 7.03, 7.04, and 7.05.
7.08 GENERAL INSURANCE PROVISIONS.
7.08 (a) Any insurance which Tenant shall be required to maintain under
this Lease shall include a provision which requires the insurance carrier to
give Landlord not less than thirty (30) days' written notice prior to any
cancellation or modification of such coverage.
7.08 (b) Prior to the earlier of Tenant's entry into the Premises or the
Lease Commencement Date, Tenant shall deliver to Landlord an insurance company
certificate that Tenant maintains the insurance required by Sections 7.01, 7.02,
7.03, 7.04 and 7.05 and not less than thirty (30) days prior to the expiration
or termination of any such insurance, Tenant shall deliver to Landlord renewal
certificates therefor. Tenant shall provide Landlord with copies of the
policies promptly upon request from time to time. If Tenant shall fail to
deliver any certificate or renewal certificate to Landlord required under this
Lease within the prescribed time period or if any such policy shall be canceled
or modified during the Lease Term without Landlord's consent, Landlord may
obtain such insurance, in which case Tenant shall
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reimburse Landlord, as Additional Rent, for the cost of such insurance within
ten (10) days after receipt of a statement of the cost of such insurance.
7.08 (c) Tenant shall maintain all insurance required under this Lease
with companies having a "General Policy Rating" of A -; X or better, as set
forth in the most current issue of the Best Key Rating Guide.
7.08 (d) Landlord and Tenant, on behalf of themselves and their insurers,
each hereby waive any and all rights of recovery against the other, or against
the officers, partners, employees, agents, or representatives of the other, for
loss of or damage to its property or the property of others under its control,
if such loss or damage shall be covered by any insurance policy in force
(whether or not described in this Lease) at the time of such loss or damage, or
required to be carried under this Article Seven. All property insurance carried
by either party shall contain a waiver of subrogation against the other party to
the extent such right shall have been waived by the insured party prior to the
occurrence of loss or injury.
7.09 INDEMNITY. Tenant shall hold Landlord, its agents, employees, officers,
directors, partners and shareholders ("lndemnitees") harmless from and defend
Indemnitees from and against all claims, liabilities, judgments, demands, causes
of action, losses, damages, costs and expenses including reasonable attorney's
fees for damage to any property or injury to or death of any person arising in
or from (i) the use or occupancy of the Premises by Tenant or persons claiming
under Tenant, except to the extent caused by the negligence or willful
misconduct of Landlord, its agents, employees or contractors, or (ii) arising
from the negligence or willful misconduct of Tenant, its employees, agents,
contractors, or invitees in, upon or about the Property except as such arises
out of the act or omission of Landlord or any Indemnitee, or (iii) arising out
of any breach or default by Tenant under this Lease. The foregoing shall
include reasonable investigation costs and all the costs and expenses incurred
by Landlord from the first notice that any claim or demand is to be made or may
be made. The provisions of this Section 7.09 shall survive the expiration or
termination of this Lease with respect to any damage, injury, or death occurring
prior to such time.
Landlord shall hold Tenant, its agents, employees, officers, directors, partners
and shareholders ("Indemnitees") harmless from and defend Indemnitees from and
against all claims, liabilities, judgements, demands, causes of action, losses,
damages, costs and expenses including reasonable attorney's fees for damage to
any property or injury to or death of any person arising in or from (i) the use
or occupancy of the Building by Landlord or persons claiming under Landlord,
except such to the extent caused by the negligence or willful misconduct of
Tenant, its agents, employees or contractors, or (ii) arising from the
negligence or willful misconduct of Landlord, its employees, agents,
contractors, or Invitees in, upon or about the Property except as such arises
out of the act or omission of Tenant or any Indemnitee, or (iii) arising out of
any breach or default by Landlord under this Lease. The foregoing shall include
reasonable investigation costs and all the costs and expenses incurred by Tenant
from the first notice that any claim or demand is to be made or may be made. The
provisions of this Section 7.09 shall survive the expiration or termination of
this Lease with respect to any damage, injury, or death occurring prior to such
time.
ARTICLE EIGHT: COMMON AREAS
---------------------------
8.01 COMMON AREAS. As used in this Lease, "Common Areas" shall mean all areas
within the Property which are available for the common use of tenants of the
Property and which are not leased or held for the exclusive use of Tenant or
other tenants, including, but not limited to, parking areas, driveways,
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sidewalks, access roads, landscaping, and planted areas. Landlord, from time to
time, and with prior written notice to Tenant, may change the size, location,
nature, and use of any of the Common Areas, convert Common Areas into leaseable
areas, construct additional parking facilities (including parking structures) in
the Common Areas, and increase or decrease Common Area land or facilities;
provided, however, that the amount of CAM Expenses shall be proportionately
adjusted by Landlord to account for such change or conversion. Such activities
and changes are permitted if they do not materially affect Tenant's use of the
Premises or the operation of its business therein, and such changes to the
Common Areas shall not unreasonably affect accessibility of the Premises, nor
shall any such changes decrease the number of parking spaces available to
Tenant.
8.02 USE OF COMMON AREAS. Tenant shall have the non-exclusive right (in common
with other tenants and all others to whom Landlord has granted or may grant such
rights) to use the Common Areas for the purposes intended, subject to such
reasonable rules and regulations ("Rules and Regulations") as Landlord may
establish or modify from time to time and as initially set forth in Exhibit "C"
and after notice to Tenant of any changes thereto provided, however, Landlord
agrees not to selectively enforce in a discriminatory manner against Tenant but
not other tenants in the Building any of the rules and regulations described in
this Section 8.02. Tenant shall abide by all such Rules and Regulations and
shall use its best efforts to cause others who use the Common Areas with
Tenant's express or implied permission to abide by Landlord's Rules and
Regulations. At any time, Landlord may close only upon prior reasonable notice
(except in an emergency) and provided such closing is only temporary any Common
Areas to perform any acts in the Common Areas as, in Landlord's reasonable
judgment, are desirable to maintain or improve the Property. Tenant shall not
interfere with the rights of Landlord, other tenants, or any other person
entitled to use the Common Areas. In the event of conflict with the terms of
this Lease, the terms of this Lease shall prevail over the Rules and
Regulations.
8.03 VEHICLE PARKING. Tenant shall be entitled to use the number of vehicle
parking spaces in the Property allocated to Tenant in Section 1.14 without
paying any additional rent. Tenant's parking shall not be reserved and shall be
limited to vehicles no larger than standard size automobiles or pickup utility
vehicles. Tenant shall not cause large trucks or other large vehicles to be
parked within the Property or on the adjacent public streets except in
accordance with the Rules and Regulations. Vehicles shall be parked only in
striped parking spaces and not in driveways, other locations not specifically
designated for parking. Handicapped spaces shall only be used by those legally
permitted to use them. Tenant shall not park at any time more vehicles in the
parking area than the number set forth in Section 1.14.
8.04 COMMON AREA MAINTENANCE. Subject to Articles Eleven and Twelve, Landlord
shall maintain the Property (other than the Premises) and the Common Areas in
good order, condition, and repair. Common Area Maintenance expenses ("CAM
Expenses") are all costs and expenses associated with the operation and
maintenance of the Common Areas and the repair and maintenance of the heating,
ventilation, air conditioning, plumbing, electrical, utility, and safety systems
for the Property (to the extent not performed by Tenant), including, but not
limited to, the following: gardening and landscaping; snow removal; utility,
water and sewage services for the Common Area; maintenance of signs (other than
tenants' signs); worker's compensation insurance; personal property taxes;
rental or lease payments paid by Landlord for rented or leased personal property
used in the operation or maintenance of the Common Areas; fees for required
licenses and permits; routine maintenance and repair of roof membrane,
flashings, gutters, downspouts, roof drains, skylights and waterproofing;
maintenance of paving (including sweeping, striping, repairing, resurfacing, and
repaving); general maintenance; painting; lighting; cleaning; refuse removal;
security and similar items; reserves for roof replacement, exterior painting and
other appropriate reserves; and a property management fee (not to exceed five
percent (5%) of the gross rents of the Property for the calendar year).
Landlord may cause any or all of such services to be provided by third parties
and the cost of such services shall be included in CAM
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Expenses; provided, however, that Landlord shall include in the statement
prepared pursuant to Section 4.02 hereof the full-time/part-time employment
status of the individual(s) providing management services to the Property. With
respect to any CAM Expenses which are included for the benefit of the Property
and other property, Landlord shall make a reasonable allocation of such cost
between the Property and such other property. CAM Expenses shall not include:
(a) the cost of capital repairs and replacements, provided, however, that the
annual depreciation (based on the useful life of the item under generally
accepted accounting principles) of any such capital repair or replacement to the
Common Areas or any common heating, ventilating, air-conditioning, plumbing,
electrical, utility and safety systems serving the Property shall be included in
the CAM Expenses each year during the term of this Lease; and (b) the cost of
capital improvements, provided, however, that the annual depreciation (based on
the useful life of the item under generally accepted accounting principles) of
any capital improvement undertaken to reduce CAM Expenses or made in order to
comply with legal requirements shall be included in CAM Expenses each year
during the term of this Lease.
8.05 TENANT'S PAYMENT OF CAM EXPENSE. Tenant shall pay Tenant's Pro Rata Share
of all CAM Expenses in accordance with Section 4.02.
ARTICLE NINE: USE OF PREMISES
-----------------------------
9.01 PERMITTED USES. Tenant may use the Premises only for the Permitted Uses
set forth in Section 1.11 above. Landlord hereby represents that the Permitted
Uses are permitted as of right under the applicable zoning laws and other laws,
rules and regulations.
9.02 MANNER OF USE. Tenant shall not cause or permit the Premises to be used
in any way which shall constitute a violation of any law, ordinance, restrictive
covenants, governmental regulation or order, which shall annoy or interfere with
the rights of tenants of the Property, or which shall constitute a nuisance or
waste. Tenant shall obtain and pay for all permits, including a certificate of
occupancy and shall promptly take all actions necessary to comply with all
applicable statutes, ordinances, notes, regulations, orders and requirements
regulating the use by Tenant of the Premises, including the Occupational Safety
and Health Act.
9.03 HAZARDOUS MATERIALS. As used in this Lease, the term "Hazardous Material"
shall mean any flammable items, explosives, radioactive materials, oil,
hazardous or toxic substances, material or waste or related materials, including
any substances defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials" or "toxic substances" now
or subsequently regulated under any applicable federal, state or local laws or
regulations, including without limitation petroleum-based products, paints,
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCBs and similar compounds, and
including any different products and materials which are subsequently found to
have adverse effects on the environment or the health and safety of persons.
Tenant shall not cause or permit any Hazardous Material to be generated,
produced, brought upon, used, stored, treated or disposed of in or about the
Property by Tenant, its agents, employees, contractors, sublessees or invitees
without (a) the prior written consent of Landlord, and (b) complying with all
applicable Federal, State and Local laws or ordinances pertaining to the
transportation, storage, use or disposal of such Hazardous Materials, including
but not limited to obtaining proper permits. Landlord shall be entitled to take
into account such other factors or facts as Landlord may reasonably determine to
be relevant in determining whether to grant or withhold consent to Tenant's
proposed activity with respect to Hazardous Material. In no event, however,
shall Landlord be required to consent to the installation or use of any storage
tanks on the Property. Landlord hereby represents to Tenant that, as of the
date of this Lease, to Landlord's best
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knowledge (without having conducted any investigation) the Premises are free of
any "Hazardous Materials" as such term is defined herein. Landlord hereby
consents to Tenant's use of small amounts of cleaning solvents, copy and printer
toner and other materials customarily used in the operation of business offices
and in the course of Tenant's operations at the Premises, so long as Tenant
complies fully with all applicable laws, rules and regulations relating thereto.
If Tenant's transportation, storage, use or disposal of Hazardous Materials on
the Premises results in the contamination of the soil or surface or ground water
or loss or damage to person(s) or property, then Tenant agrees to: (a) notify
Landlord immediately upon Tenant's obtaining actual knowledge of any
contamination, claim of contamination, loss or damage, (b) after consultation
with the Landlord, clean up the contamination in full compliance with all
applicable statutes, regulations and standards and (c) indemnify, defend and
hold Landlord harmless from and against any claims, suits, causes of action,
costs and fees, including reasonable attorney's fees and costs, arising from or
connected with any such contamination, claim of contamination, loss or damage to
the extent caused by Tenant and its activities in or on the Premises. Tenant
agrees to fully cooperate with Landlord and provide such documents, affidavits
and information as may be reasonably requested by Landlord (i) to comply with
any environmental law, (ii) to comply with the request of any lender, purchaser
or tenant, and/or (iii) for any other reason deemed reasonably necessary by
Landlord. Tenant shall notify Landlord promptly upon Tenant's obtaining actual
knowledge of any spill or other release of any Hazardous Material at, in, on,
under or about the Premises which is required to be reported to a governmental
authority under any environmental law, will promptly forward to Landlord copies
of any notices received by Tenant relating to alleged violations of any
environmental law and will promptly pay when due any fine or assessment against
Landlord, Tenant or the Premises relating to any violation by Tenant of an
environmental law during the term of this Lease. If a lien is filed against the
Premises by any governmental authority resulting from the need to expend or the
actual expending of monies arising from an act or omission, whether intentional
or unintentional, of Tenant, its agents, employees or invitees, or for which
Tenant is responsible, resulting in the releasing, spilling, leaking, leaching,
pumping, emitting, pouring, emptying or dumping of any Hazardous Material into
the waters or onto land located within or without the State where the Premises
is located, then Tenant shall, within thirty (30) days from the date that Tenant
is first given notice that such lien has been placed against the Premises (or
within such shorter period of time as may be specified by Landlord if such
governmental authority has commenced steps to cause the Premises to be sold
pursuant to such lien) either (i) pay the claim and remove the lien, or (ii)
furnish a cash deposit, bond, or such other security with respect thereto as is
satisfactory in all respects to Landlord and is sufficient to effect a complete
discharge of such lien on the Premises. The provisions of this Section 9.03
shall survive the expiration or earlier termination of this Lease.
9.04 SIGNS AND AUCTIONS. Tenant shall not place any signs on the Property
without Landlord's prior written consent, which consent shall not be
unreasonably withheld for outdoor signage that identifies Tenant as the occupant
of the Premises, provided such signage complies with applicable law. Tenant
shall not conduct or permit any auctions or sheriff's sales at the Property.
9.05 LANDLORD'S ACCESS. Landlord or its agents may enter the Premises at all
reasonable times to show the Premises to potential buyers, investors or tenants
or other parties; to do any other act or to inspect and conduct tests in order
to monitor Tenant's compliance with all applicable environmental laws and all
laws governing the presence and use of Hazardous Material; or for any other
purpose Landlord deems reasonably necessary. Landlord shall give Tenant at
least two days' prior written notice (except in the event of an emergency) of
such entry, and such entry by Landlord shall not interfere with Tenant's
business operations or cause damage to Tenant's personal property. Landlord
shall repair any damage to Tenant or its personal property as a result of such
entry. Within the final six months of the Lease Term, Landlord may place
customary "For Sale" or "For Lease" signs on the Premises.
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ARTICLE TEN: CONDITION AND MAINTENANCE OF PREMISES
--------------------------------------------------
10.01 EXISTING CONDITIONS. Tenant shall accept the Property and the Premises
in their condition as of the execution of the Lease, subject to all recorded
matters, laws, ordinances, and governmental regulations and orders. Except as
provided herein, Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation as to the condition of the Property or the
suitability of the Property for Tenant's intended use. Tenant represents and
warrants that Tenant has made its own inspection of and inquiry regarding the
condition of the Property and is not relying on any representations of Landlord
or any Broker with respect thereto. Tenant agrees to execute promptly a
memorandum of Acceptance of Premises in the form set forth in Exhibit "E" to
this Lease.
10.02 EXEMPTION OF LANDLORD FROM LIABILITY. Tenant shall insure its personal
property under an all risk full replacement cost property insurance policy.
Landlord shall not be liable for any damage or injury to the person, business
(or any loss of income therefrom), goods, wares, merchandise or other property
of Tenant, Tenant's employees, invitees, customers or any other person or about
the Property, whether such damage or injury is caused by or results from: (a)
fire, steam, electricity, water, gas or rain; (b) the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures or any other cause; (c) conditions arising
in or about Property, or from other sources or places; or (d) any act or
omission of any other tenant of the Property. The provisions of this Section
10.02 shall not, however, exempt Landlord from liability for Landlord's
negligence or willful misconduct.
10.03 LANDLORD'S OBLIGATIONS. Subject to the provisions of Article Eleven
(Damage or Destruction) and Article Twelve (Condemnation) (and except that
Tenant shall be obligated to reimburse Landlord for the costs of any damage
caused by any act or omission of Tenant, or Tenant's employees, agents,
contractors or invitees), Landlord shall keep the foundation, roof, building
systems (other than the heating, ventilating and air conditioning system),
structural supports and exterior walls of the improvements on the Property, the
sidewalks, paved parking lots, etc. in good order, condition and repair.
However, Landlord shall not be obligated to maintain or repair windows, doors,
plate glass or the surfaces of walls. Tenant shall promptly report in writing
to Landlord any defective condition known to it which Landlord is required to
repair. Tenant hereby waives the benefit of any present or future law which
provides Tenant the right to repair the Premises or Property at Landlord's
expense or to terminate this Lease because of the condition of the Property or
Premises.
10.04 TENANT'S OBLIGATIONS
10.04 (a) REPAIR AND MAINTENANCE. Except as provided in Section 10.03,
Article Eleven (Damage or Destruction) and Article Twelve (Condemnation), Tenant
shall keep all portions of the Premises (including systems and equipment) and
the heating, ventilating and air conditioning system in good order, condition
and repair (including repainting and refinishing, as needed). If any portion of
the Premises or any system or equipment in the Premises which Tenant shall be
obligated to repair cannot be fully repaired or restored, Tenant shall promptly
notify Landlord, and Landlord shall at Tenant's expense replace such portion of
the Premises or system or equipment, except that if the benefit of such
replacement extends beyond the Lease Term, Tenant shall only be obligated to pay
a proportionate share thereof attributable to the period then remaining in the
Term of its Lease. Tenant shall maintain a preventive maintenance contract
providing for the regular inspection and maintenance of the heating and air
conditioning system by a heating and air conditioning contractor, such contract
and such contractor to be approved by Landlord, which approval shall not be
unreasonably withheld. Landlord shall have the
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<PAGE>
right, upon written notice to Tenant, to undertake the responsibility for
maintenance of the heating and air conditioning system at Tenant's expense.
Landlord shall, at Tenant's expense, repair any damage to the portions of the
Property Landlord shall be required to maintain to the extent caused by Tenant's
negligent acts or omissions and not related to Landlord's negligent acts or
omissions.
10.04 (b) TENANT'S EXPENSE. Tenant shall fulfill all of Tenant's
obligations under this Section 10.04 at Tenant's sole expense. If Tenant shall
fail to maintain, repair or replace the Premises as required by this Section
10.04, Landlord may, upon ten (10) days' prior notice to Tenant (except that no
notice shall be required in the case of an emergency), enter the Premises and
perform such maintenance or repair (including replacement, as needed) on behalf
of Tenant. In such case, Tenant shall reimburse Landlord for all costs
reasonably incurred in performing such maintenance, repair or replacement as
part of Additional Rent.
10.05 ALTERATIONS, ADDITIONS, AND IMPROVEMENTS
10.05 (a) TENANT'S WORK. Tenant shall not make any installations,
alterations, additions, or improvements in or to the Premises, including,
without limitation, any apertures in the walls, partitions, ceilings or floors,
without on each occasion obtaining the prior consent of Landlord, not to be
unreasonably withheld for non-structural alterations. Any such work so approved
by Landlord shall be performed only in accordance with plans and specifications
therefor approved by Landlord. Tenant shall procure at Tenant's sole expense
all necessary permits and licenses before undertaking any work on the Premises
and shall perform all such work in a good and workmanlike manner employing
materials of good quality and so as to conform with all applicable zoning,
building, fire, health and other codes, regulations, ordinances and laws and
with all applicable insurance requirements. If requested by Landlord, Tenant
shall furnish to Landlord prior to commencement of any such work a bond or other
security acceptable to Landlord assuring that any work by Tenant will be
completed in accordance with the approved plans and specifications and that all
subcontractors will be paid. Tenant shall employ for such work only contractors
approved by Landlord, which approval shall not be unreasonably withheld, and
shall require all contractors employed by Tenant to carry worker's compensation
insurance in accordance with statutory requirements and commercial general
liability insurance covering such contractors on or about the Premises with a
combined single limit not less than $3,000,000 and shall submit certificates
evidencing such coverage to Landlord prior to the commencement of such work.
Tenant shall indemnify and hold harmless Landlord from all injury, loss, claims
or damage to any person or property occasioned by or growing out of such work
and not arising from Landlord's acts or omissions. Landlord may inspect the
work of Tenant at reasonable times and give to Tenant written notice of observed
defects. Upon completion of any such work, Tenant shall provide Landlord with
"as built" plans, copies of all construction contracts and proof of payment for
all labor and materials.
10.05 (b) NO LIENS. Tenant shall pay when due all claims for labor and
material furnished to the Premises and shall at all times keep the Property free
from liens for labor and materials. Tenant shall give Landlord at least ten
(10) days' prior written notice of the commencement of any work on the Premises
if Landlord's consent to such work is required. Landlord may record and post
notices of non-responsibility on the Premises.
10.06 CONDITION UPON TERMINATION. Upon the expiration or termination of this
Lease, Tenant shall surrender the Premises to Landlord broom clean and in the
condition which Tenant shall have been required to maintain the Premises under
this Lease, reasonable wear and tear, damage by casualty or taking and damages
caused by any failure of Landlord to perform its obligations and improvements
left in accordance with this Section 10.06 excepted. Tenant shall not be
obligated to repair any damage
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which Landlord is required to repair under Article Eleven (Damage or
Destruction). Landlord may require Tenant to remove any alterations, additions
or improvements (whether or not made with Landlord's consent) prior to the
expiration of the Lease and to restore the Premises to their prior condition,
all at Tenant's expense; provided, however, that with respect to any
alterations, additions or improvements which require Landlord's approval, at the
time of such approval Landlord shall specify if any of the same shall not be
required to be removed by Tenant and shall become Landlord's property and shall
be surrendered to Landlord upon the expiration or earlier termination of the
Lease, except that Tenant may remove any of Tenant's machinery or equipment
which can be removed without damage to the Property. Landlord agrees that
Tenant's Work related to its initial build-out need not be removed upon the
expiration or earlier termination of this Lease. Tenant shall repair, at
Tenant's expense, any damage to the Property caused by the removal of any such
machinery or equipment. In no event, however, shall Tenant remove any of the
following materials or equipment (which shall be deemed Landlord's property),
without Landlord's prior written consent; unless the same shall have been
installed by Tenant at its expense: any power wiring or wiring panels; lighting
or lighting fixtures; wall coverings; drapes, blinds or other window coverings;
carpets or other floor coverings; heaters, air conditioners or any other heating
or air conditioning equipment; fencing or security gates; or other similar
building operating equipment.
ARTICLE ELEVEN: DAMAGE OR DESTRUCTION
-------------------------------------
11.01 DAMAGE TO PREMISES
11.01 (a) If the Premises shall be destroyed or rendered untenantable,
either wholly or in part, by fire or other casualty ("Casualty"), Tenant shall
immediately notify Landlord in writing upon the occurrence of such Casualty. In
the event of any Casualty destroying or rendering untenantable more than fifty
percent of the Premises, Landlord may elect either to (i) repair the damage
caused by such casualty as soon as reasonably possible, in which case this Lease
shall remain in full force and effect, or (ii) terminate this Lease as of the
date the casualty occurred. If such damage occurs during the last year of the
Term, Tenant may also elect to terminate this Lease as of the date the casualty
occurred. Landlord shall notify Tenant within thirty (30) days after receipt of
notice of the occurrence of the casualty whether Landlord elects to repair the
damage or terminate this Lease. In the event of any Casualty destroying or
rendering untenantable less than fifty percent of the Premises, Landlord shall
repair the damage caused by such casualty as soon as reasonably possible. If
Landlord shall elect to repair the damage, Tenant shall pay Landlord the portion
of the "deductible amount" (if any) under Landlord's insurance allocable to the
damage to the Premises and, if the damage shall have been due to an act or
omission of Tenant, or Tenant's employees, agents, contractors or invitees, the
difference between the actual cost of repair and any insurance proceeds received
by Landlord.
11.01(b) If the casualty to the Premises shall occur during the last six
(6) months of the Lease Term and the damage shall be estimated by Landlord to
require more than thirty (30) days to repair, either Landlord or Tenant may
elect to terminate this Lease as of the date the casualty shall have occurred,
regardless of the sufficiency of any insurance proceeds. The party electing to
terminate this Lease shall give written notification to the other party of such
election within ten (10) days after Tenant's notice to Landlord of the
occurrence of the casualty.
11.01(c) Notwithstanding the foregoing, in the event Landlord is unable to
substantially complete such restoration work within 180 days following any such
casualty, Tenant shall notify Landlord in writing of Tenant's intent to
thereafter terminate this Lease and Landlord shall thereafter have an additional
30 day period within which to substantially complete such work; and in the event
Landlord fails to substantially complete such work by the end of such extended
30-day period, Tenant shall thereafter have the right to terminate this Lease
upon
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delivery of written notice to Landlord of such termination prior to the earlier
of (a) the date of such substantial completion of Landlord's work or (b) fifteen
days following expiration of such extended 30-day period.
11.02 TEMPORARY REDUCTION OF RENT. If the Property shall be destroyed or
damaged by casualty and Landlord shall determine to repair or restore the
Property pursuant to the provisions of this Article Eleven, any Rent payable
during the period of such damage, repair and/or restoration shall be reduced
according to the degree, if any, to which Tenant's use of the Premises shall be
impaired. Such reduction shall not exceed the sum of one year's payment of Base
Rent, insurance premiums and Real Property Taxes. Except for such possible
reduction in Base Rent, insurance premiums and Real Property Taxes, Tenant shall
not be entitled to any compensation, reduction or reimbursement from Landlord as
a result of any damage, destruction, repair, or restoration of the Property.
11.03 WAIVER. Tenant waives the protection of any statute, code or judicial
decision which shall grant a tenant the right to terminate a lease in the event
of the damage or destruction of the leased property and the provisions of this
Article Eleven shall govern the rights and obligations of Landlord and Tenant in
the event of any damage or destruction of or to the Property.
ARTICLE TWELVE: CONDEMNATION
----------------------------
12.01 CONDEMNATION. If more than twenty percent (20%) of the floor area of the
Premises or more than twenty-five percent (25%) of the parking on the Property,
shall be taken by eminent domain either Landlord or Tenant may terminate this
Lease as of the date the condemning authority takes title or possession, by
delivering notice to the other within ten (10) days after receipt of written
notice of such taking (or in the absence of such notice, within ten (10) days
after the condemning authority shall take title or possession). If neither
Landlord nor Tenant shall terminate this Lease, this Lease shall remain in
effect as to the portion of the Premises not taken, except that the Base Rent
shall be reduced in proportion to the reduction in the floor area of the
Premises. If this Lease shall be terminated, any condemnation award or payment
shall be distributed to the Landlord. Tenant shall have no claim against
Landlord for the value of the unexpired lease term or otherwise.
ARTICLE THIRTEEN: ASSIGNMENT AND SUBLETTING
-------------------------------------------
13.01 LANDLORD'S CONSENT REQUIRED. No portion of the Premises or of Tenant's
interest in this Lease shall be acquired by any other person or entity, whether
by sale, assignment, mortgage, sublease, transfer, operation of law, or act of
Tenant, without Landlord's prior written consent, except as provided in Section
13.02 below. Landlord shall have the right to grant or withhold its consent as
provided in Section 13.04 below. Any attempted transfer without consent shall be
void and shall constitute a non curable breach of this Lease.
13.02 NO RELEASE OF TENANT. No assignment or transfer shall release Tenant or
change Tenant's primary liability to pay the Rent and to perform all other
obligations of Tenant under this Lease. Landlord's acceptance of Rent from any
other person shall not be a waiver of any provision of this Article Thirteen.
Consent to one transfer shall not be deemed a consent to any subsequent transfer
or a waiver of the obligation to obtain consent on subsequent occasions. If
Tenant's assignee or transferee shall default under this Lease, Landlord may
proceed directly against Tenant without pursuing remedies against the assignee
or transferee. Landlord may consent to subsequent assignments or modifications
of this Lease by Tenant's transferee without notifying Tenant or obtaining its
consent, and such action shall not release Tenant from any of its obligations or
liabilities under this Lease as so assigned or modified.
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13.03 OFFER TO TERMINATE. If Tenant shall desire to assign this Lease or
sublease all or any part of the Premises, Tenant shall offer to Landlord in
writing, the right to terminate this Lease as of the date specified in the
offer. If Landlord shall elect in writing to accept the offer to terminate
within twenty (20) days after receipt of notice of the offer, and Tenant does
not within ten (10) days following receipt of Landlord's written notice of such
acceptance notify Landlord in writing of Tenant's withdrawal of its intent to
assign or sublease, this Lease shall terminate as of the date specified in such
offer and all the terms and provisions of this Lease governing termination shall
apply. If Landlord shall not so elect, Tenant shall then comply with the
provisions of this Article Thirteen applicable to such assignment of sublease.
13.04 LANDLORD'S CONSENT. Tenant's request for consent under Section 13.01
shall set forth the details of the proposed sublease, assignment or transfer,
including the name, business and financial condition of the prospective
transferee, financial details of the proposed transaction (e.g., the term of and
the rent and security deposit payable under any proposed assignment or
sublease), and any other information Landlord deems relevant. Landlord shall
have the right to withhold consent, reasonably exercised, or to grant consent,
based on the following factors: (i) the business of the proposed assignee or
subtenant and the proposed use of the Premises; (ii) the net worth and financial
condition of the proposed assignee or subtenant; (iii) Tenant's compliance with
all of its obligations under this Lease; and (iv) such other factors as Landlord
may reasonably deem relevant. If Tenant shall assign or sublease, the following
shall apply: Tenant shall pay to Landlord as Additional Rent fifty percent (50%)
of the Profit (defined below) on such transaction (such amount being Landlord's
share) as and when received by Tenant, unless Landlord shall give notice to
Tenant and the assignee or subtenant that Landlord's Share shall be paid by the
assignee or subtenant to Landlord directly. Profit shall mean (a) all rent and
all fees and other consideration paid for or in respect of the assignment or
sublease, including fees under any collateral agreements less (b) the rent and
other sums payable under this Lease (in the case of a sublease of less than all
of the Premises, allocable to the subleased premises) and all costs and expenses
directly incurred by Tenant in connection with the execution and performance of
such assignment or sublease for reasonable real estate broker's commissions and
reasonable costs of renovation or construction of tenant improvements required
under such assignment or sublease. Tenant shall be entitled to recover such
reasonable costs and expenses before Tenant shall be obligated to pay Landlord's
Share to Landlord. Tenant shall provide Landlord a written statement certifying
all amounts to be paid from any assignment or sublease of the Premises within
thirty (30) days after the transaction shall be signed and from time to time
thereafter on Landlord's request, and Landlord may inspect Tenant's books and
records to verify the accuracy of such statement. On written request, Tenant
shall promptly furnish to Landlord copies of all the transaction documentation,
all of which shall be certified by Tenant to be complete, true and correct.
13.05 TENANT'S AFFILIATE. Notwithstanding anything in this Section 13 to the
contrary, Tenant may assign this Lease or sublet all or any portion of the
Premises without the prior written consent of Landlord to Tenant's Affiliate (as
hereinafter defined) provided that: (a) Tenant is not at such time, and such
Affiliate on the effective date of such assignment or sublease will not be, in
monetary or material non-monetary default hereunder; (b) such Affiliate shall
execute an instrument in writing assuming by assignment the terms of this Lease
or acknowledging that such sublease is subject and subordinate to all of the
terms and conditions of this Lease, and Tenant shall deliver the same to
Landlord; and (c) all documents and information required hereunder shall be
delivered by Tenant to Landlord at least fifteen (15) days prior to the
effective date of such assignment or sublease; and (d) in the case of an
assignment, such Affiliate has a net worth at least equal to or greater than
that of Tenant prior to the effective date of such assignment. For purposes of
this Section 13, the term "Affiliate" shall mean (i) any entity resulting from a
merger or business combination with Tenant; or (ii) any entity succeeding to the
business or substantially all of the assets of Tenant; or (iii) the parent of
Tenant or any Affiliate of such parent.
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ARTICLE FOURTEEN: DEFAULTS AND REMEDIES
---------------------------------------
14.01 COVENANTS AND CONDITIONS. Tenant's performance of each of Tenant's
obligations under this Lease is a condition as well as a covenant. Tenant's
right to continue in possession of the Premises is conditioned upon such
performance. Time is of the essence in the performance by Tenant of all
covenants and conditions.
14.02 DEFAULTS. Each of the following shall be an event of default under this
Lease:
14.02 (a) Tenant shall abandon or vacate the Premises and fail to pay Rent
as required under this Lease;
14.02 (b) Tenant shall fail to pay Rent or any other sum payable under
this Lease within ten (10) days after Tenant's receipt of written notice from
Landlord regarding such non-payment;
14.02 (c) Tenant shall fail to perform any of Tenant's other obligations
under this Lease and such failure shall continue for a period of thirty (30)
days after written notice from Landlord; provided that if more than thirty (30)
days shall be required to complete such performance, Tenant shall not be in
default if Tenant shall commence such performance within the thirty (30) day
period and shall thereafter diligently pursue its completion.
14.02 (d) (i) Tenant shall make a general assignment or general
arrangement for the benefit of creditors; (ii) a petition for adjudication of
bankruptcy or for reorganization or rearrangement shall be filed by or against
Tenant and shall not be dismissed within sixty (60) days; (iii) a trustee or
receiver shall be appointed to take possession of substantially all of Tenant's
assets located at the Premises or Tenant's interest in this Lease and possession
shall be subjected to attachment, execution or other judicial seizure which
shall not be discharged within sixty (60) days. If a court of competent
jurisdiction shall determine that any of the acts described in this subsection
(d) is not a default under this Lease, and a trustee shall be appointed to take
possession (or if Tenant shall remain a debtor in possession) and such trustee
or Tenant shall assign, sublease, or transfer Tenant's interest hereunder, then
Landlord shall receive, as Additional Rent, the excess, if any, of the rent (or
any other consideration) paid in connection with such assignment, transfer or
sublease over the rent payable by Tenant under this Lease.
14.03 REMEDIES. On the occurrence of an event of default by Tenant beyond the
expiration of all applicable notice, grace and cure periods, Landlord may, at
any time thereafter, with or without notice or demand (except as provided in
Section 14.02) and without limiting Landlord in the exercise of any right or
remedy which Landlord may have:
14.03 (a) Terminate this Lease by written notice to Tenant or by entry, at
Landlord's option. Tenant shall then immediately quit and surrender the
Premises to Landlord, but Tenant shall remain liable as hereinafter provided.
Following termination, without prejudice to other remedies Landlord may have by
reason of Tenant's default or of such termination, Landlord may (i) peaceably
reenter the Premises upon voluntary surrender by Tenant or remove Tenant
therefrom and any other persons occupying the Premises, using such legal
proceedings as may be available; (ii) repossess the Premises or relet the
Premises or any part thereof for such term (which may be for a term extending
beyond the Lease Term), at such rental and upon such other terms and conditions
as Landlord in Landlord's sole discretion shall determine, with the right to
make alterations and repairs to the Premises; and (iii) remove all personal
property therefrom. Following termination, Landlord shall have all the rights
and remedies of a landlord provided at law and in equity and shall use
reasonable efforts to re-let the Premises. The
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<PAGE>
amount of damages Tenant shall pay to Landlord following termination shall
include all Rent unpaid up to the termination of this Lease, costs and expenses
incurred by Landlord due to such Event of Default and, in addition, Tenant shall
pay to Landlord as damages, at the election of Landlord (if Landlord shall elect
subsection (y) below, it may cease such election at any time), either (x) the
discounted present value (at the then Federal Reserve Bank discount rate) of the
aggregate Rent and other charges due during the period commencing with such
termination and ending on the expiration date of this Lease, or (y) amounts
equal to the Rent and other charges which would have been payable by Tenant had
this Lease or Tenant's right to possession not been so terminated, payable upon
the due dates therefor specified herein following such termination and until the
expiration date of this Lease, provided, however, that if Landlord shall re-let
the Premises during such period, Landlord shall credit Tenant with the net rents
received by Landlord from such re-letting, such net rents to be determined by
first deducting from the gross rents as and when received by Landlord from such
re-letting the expenses reasonably incurred or paid by Landlord in terminating
this Lease, and the reasonable expenses of re-letting, including, without
limitation, altering and preparing the Premises for new tenants, brokers'
commissions, reasonable legal fees and all other similar and dissimilar expenses
properly and reasonably chargeable against the Premises and the rental
therefrom, it being understood that any such reletting may be for a period equal
to or shorter or longer than the remaining Lease Term; and provided, further,
that (i) in the no event shall Tenant be entitled to receive any excess of such
net rents over the sums payable by Tenant to Landlord hereunder and (ii) in no
event shall Tenant be entitled in any suit for the collection of damages
pursuant to this subsection (y) to a credit in respect of any net rents from a
re-letting except to the extent that such net rents are actually received by
Landlord prior to the commencement of such suit. If the Premises or any part
thereof should be re-let in combination with other space, then proper
apportionment on a square foot area basis shall be made of the rent received
from such re-letting and of the reasonable expenses of re-letting. In
calculating the Rent and other charges under subsection (x) above, there shall
be included, in addition to the Rent other considerations agreed to be paid or
performed by Tenant, on the assumption that all such considerations would have
remained constant (except as herein otherwise provided) for the balance of the
full Term hereby granted. Landlord shall use reasonable efforts to re-let the
Premises or any part thereof for such rent and on such terms as it shall
determine (including the right to re-let the Premises for a greater or lesser
term than the Lease Term, the right to re-let the Premises as part of a larger
area and the right to change the character or use made of the Premises). Suit or
suits for the recovery of such damages, or any installments thereof, may be
brought by Landlord from time to time at its election, and nothing contained
herein shall be deemed to require Landlord to postpone suit until the date when
the Term of this Lease would have expired if it had not been terminated
hereunder. In lieu of any other damages or indemnity and in lieu of full
recovery by Landlord of all sums payable under the foregoing provisions of this
Section 14.03(a), Landlord may, by written notice to Tenant, at any time after
this Lease shall be terminated under this Article Fourteen or shall be otherwise
terminated for breach of any obligation of Tenant and before such full recovery,
elect to recover, and Tenant shall thereupon pay, as liquidated damages, an
amount equal to the aggregate of the Base Rent and Additional Rent due for the
twelve (12) months ended immediately prior to such termination plus the amount
of Base Rent and Additional Rent of any kind accrued and unpaid at the time of
termination.
14.03 (b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant has abandoned the Premises. In
such event, Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the rent as it becomes
due.
14.03 (c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Property is
located.
14.04 REPAYMENT OF "FREE" RENT. [Intentionally Deleted]
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14.05 AUTOMATIC TERMINATION; DAMAGES. Notwithstanding any other term or
provision hereof to the contrary, this Lease shall terminate on the occurrence
of any act which affirms the Landlord's intention to terminate the Lease as
provided in Section 14.03 hereof, including the filing of an unlawful detainer
action against Tenant. On any termination, Landlord's damages for default shall
include all costs and fees, including reasonable attorneys' fees that Landlord
shall incur in connection with the filing, commencement, pursuing and/or
defending of any action in any bankruptcy court or other court with respect to
the Lease, the obtaining of relief from any stay in bankruptcy restraining any
action to evict Tenant; or the pursuing of any action with respect to Landlord's
right to possession of the Premises. All such damages suffered (apart from Base
Rent and other Rent payable hereunder) shall constitute pecuniary damages which
shall be reimbursed to Landlord prior to assumption of the Lease by Tenant or
any successor to Tenant in any bankruptcy or other proceedings.
14.06 CUMULATIVE REMEDIES. Except as otherwise expressly provided herein, any
and all rights and remedies which Landlord and Tenant may have under this Lease
and at law and equity shall be cumulative and shall not be deemed inconsistent
with each other, and any two or more of all such rights and remedies may be
exercised at the same time to the greatest extent permitted by law.
ARTICLE FIFTEEN: PROTECTION OF LENDERS
--------------------------------------
15.01 SUBORDINATION. Landlord represents that there is no mortgage encumbering
the Property or the Premises as of the date of execution hereof. Landlord shall
have the right to subordinate this Lease to any future ground lease, deed of
trust or mortgage encumbering the Property, any advances made on the security
thereof and any renewals, modifications, consolidations, replacements or
extensions thereof, whenever made or recorded, provided that Landlord shall
obtain from such ground lessor, mortgagee or other financing entity an agreement
in the form customarily issued by such party and reasonably acceptable to Tenant
whereby such party agrees not to disturb Tenant's use and possession of the
Premises in the event of such party's foreclosure, deed in lieu of foreclosure
or exercise of any of its rights at law or in equity. Tenant shall cooperate
with Landlord and any lender which shall acquire a security interest in the
Property or the Lease. Tenant shall execute such further documents and
assurances as such lender may require, provided that Tenant's obligations under
this Lease shall not be increased in any material way (the performance of
ministerial acts shall not be deemed material), and Tenant shall not be deprived
of its rights under this Lease. If any ground lessor, beneficiary or mortgagee
elects to have this Lease prior to the lien of its ground lease, deed of trust
or mortgage and gives written notice thereof to Tenant, this Lease shall be
deemed prior to such ground lease, deed of trust or mortgage whether this Lease
is dated prior or subsequent to the date of said ground lease, deed of trust or
mortgage or the date of recording thereof.
15.02 ATTORNMENT. If Landlord's interest in the Property is acquired by any
ground lessor, beneficiary under a deed of trust, mortgagee, or purchaser at a
foreclosure sale, Tenant shall attorn to the transferee of or successor to
Landlord's interest in the Property and recognize such transferee or successor
as Landlord under this Lease so long as Tenant is permitted to remain in
possession under the terms of this Lease. Tenant waives the protection of any
statute or rule of law which shall give Tenant any right to terminate this Lease
or surrender possession of the Premises upon the transfer of Landlord's
interest.
15.03 SIGNING OF DOCUMENTS. Tenant shall sign and deliver any instrument or
documents necessary or appropriate to evidence any such attornment, non-
disturbance and subordination or agreement to do so, which agreement shall be
reviewed and approved in advance by Tenant and its counsel.
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15.04 ESTOPPEL CERTIFICATES. Within ten (10) days after Landlord's request,
Tenant shall execute, acknowledge and deliver to Landlord a written statement
certifying: (i) that none of the terms or provisions of this Lease have been
changed (or if they have been changed, stating how they have been changed); (ii)
that this Lease has not been canceled or terminated; (iii) the last date of
payment of the Base Rent and other charges and the time period covered by such
payment; (iv) that Landlord is not in default under this Lease (or if Landlord
is claimed to be in default, setting forth such default in reasonable detail);
and (v) such other information with respect to Tenant or this Lease as Landlord
may reasonably request or which any prospective purchaser or encumbrancer of the
Property may require. Landlord may deliver any such statement by Tenant to any
prospective purchaser or encumbrancer of the Property, and such purchaser or
encumbrancer may rely conclusively upon such statement as true and correct. If
Tenant shall not deliver such statement to Landlord within such ten (10) day
period, Landlord, and any prospective purchaser or encumbrancer, may
conclusively presume and rely upon the following facts: (i) that the terms and
provisions of this Lease have not been changed except as otherwise represented
by Landlord; (ii) that this Lease has not been canceled or terminated except as
otherwise represented by Landlord; (iii) that not more than one month's Base
Rent or other charges have been paid in advance; and (iv) that Landlord is not
in default under this Lease. In such event, Tenant shall be estopped from
denying the truth of such facts.
ARTICLE SIXTEEN: LEGAL COSTS
----------------------------
16.01 LEGAL PROCEEDINGS. In any suit or proceeding brought or commenced by
either party against the other to enforce, protect or defend its rights or
remedies hereunder, the prevailing party therein shall be entitled to recover
from the non-prevailing party all court costs and reasonable attorneys' fees
incurred by the prevailing party with respect to such suit or proceeding, which
amount may be included in and made a part of any judgment entered therein.
16.02 LANDLORD'S CONSENT. Tenant shall pay Landlord's reasonable fees and
expenses, including, without limitation, legal, engineering and other
consultants' fees and expenses, incurred in connection with Tenant's request for
Landlord's consent under Article Thirteen (Assignment and Subletting) or in
connection with any other act by Tenant which requires Landlord's consent or
approval under this Lease.
ARTICLE SEVENTEEN: MISCELLANEOUS PROVISIONS
-------------------------------------------
17.01 NON-DISCRIMINATION. Tenant agrees that it will not permit any
discrimination against, or segregation of, any person or group of persons on the
basis of race, color, sex, creed, national origin or ancestry in the leasing,
subleasing, transferring, occupancy, tenure or use of the Premises or any
portion thereof.
17.02 LANDLORD'S LIABILITY; CERTAIN DUTIES.
17.02 (a) BIND AND INURE; LIMITATION OF LANDLORD'S LIABILITY. The
obligations of this Lease shall run with the land, and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. No owner of the Property shall be liable under this
Lease except for breaches of Landlord's obligations occurring while owner of the
Property. The obligations of Landlord shall be binding upon the assets of
Landlord which comprise the Property (including rent, insurance proceeds,
condemnation awards) but not upon other assets of Landlord. No individual
partner, trustee, stockholder, officer, director, employee, or beneficiary of
Landlord shall be personally liable under this Lease and Tenant shall look
solely to Landlord's interest in the Property in pursuit of its remedies upon an
event of default hereunder, and the general assets of Landlord and its partners,
Page 22 of 35
<PAGE>
trustees, stockholders, officers, employees or beneficiaries of Landlord shall
not be subject to levy, execution or other enforcement procedure for the
satisfaction of the remedies of Tenant.
17.02 (b) NOTICE. Tenant shall give notice of any failure by Landlord to
perform any of its obligations under this Lease to Landlord and to any ground
lessor, mortgagee or beneficiary under any deed of trust encumbering the
Property whose name and address shall have been furnished in writing to Tenant.
Landlord shall not be in default under this Lease unless Landlord (or such
ground lessor, mortgagee or beneficiary) shall fall to cure such non-performance
within thirty (30) days after receipt of Tenant's notice. However, if such non-
performance shall reasonably require more than thirty (30) days to cure,
Landlord shall not be in default if such cure shall be commenced within such
thirty (30) day period and thereafter diligently pursued to completion.
17.03 SEVERABILITY. A determination by a court of competent jurisdiction that
any provision of this Lease or any part thereof is illegal or unenforceable
shall not cancel or invalidate the remainder of such provision of this Lease,
which shall remain in full force and effect.
17.04 INTERPRETATION. The captions of the Articles or Sections of this Lease
are not a part of the terms or provisions of this Lease. Whenever required by
the context of this Lease, the singular shall include the plural and the plural
shall include the singular. The masculine, feminine and neuter genders shall
each include the other, in any provision relating to the conduct, acts or
omissions of Tenant, the term "Tenant" shall include Tenant's agents, employees,
contractors, invitees, successors or others using the Premises with Tenant's
expressed or implied permission.
17.05 INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This Lease is the only
agreement between the parties pertaining to the lease of the Premises and no
other agreements shall be effective. All amendments to this Lease shall be in
writing and signed by all parties. Any other attempted amendment shall be void.
17.06 NOTICES. All notices, requests and other communications required or
permitted under this Lease shall be in writing and shall be personally delivered
or sent by certified mail, return receipt requested, postage prepaid or by a
national overnight delivery service which maintains delivery records. Notices
to Tenant shall be delivered to the address specified in Section 1.18 above,
except that upon Tenant's taking possession of the Premises, the Premises shall
be Tenant's address for notice purposes. Notices to Landlord shall be delivered
to the address specified in Section 1.17 above. All notices shall be effective
upon delivery (or refusal to accept delivery). Either party may change its
notice address upon written notice to the other party.
17.07 WAIVERS. All waivers shall be in writing and signed by the waiving
party. Landlord's failure to enforce any provision of this Lease or its
acceptance of Rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound by to the conditions of such
statement.
17.08 NO RECORDATION. Tenant shall not record this Lease. Either Landlord or
Tenant may require that a notice, short form or memorandum of this Lease
executed by both parties be recorded. The party requiring such recording shall
pay all transfer taxes and recording fees.
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<PAGE>
17.09 BINDING EFFECT; CHOICE OF LAW. This Lease shall bind any party who shall
legally acquire any rights or interest in this Lease from Landlord or Tenant,
provided that Landlord shall have no obligation to Tenant's successor unless the
rights or interests of Tenant's successor are acquired in accordance with the
terms of this Lease. The laws of the state in which the Property is located
shall govern this Lease.
17.10 CORPORATE AUTHORITY; PARTNERSHIP AUTHORITY. If Tenant is a corporation,
each person signing this Lease on behalf of Tenant represents and warrants that
(s)he has full authority to do so and that this Lease binds the corporation.
Within thirty (30) days after this Lease is signed, Tenant shall deliver to
Landlord a certified copy of a resolution of Tenant's Board of Directors
authorizing the execution of this Lease or other evidence of such authority
reasonably acceptable to Landlord, and Landlord shall deliver to Tenant a
certified copy of a resolution of Landlord's Board of Directors authorizing the
execution of this Lease or other evidence of such authority reasonably
acceptable to Tenant. If Tenant is a partnership, each person or entity signing
this Lease for Tenant represents and warrants that he or it is a general partner
of the partnership, that he or it has full authority to sign for the partnership
and that this Lease binds the partnership and all general partners of the
partnership. Tenant shall give prompt notice to Landlord of any general
partner's withdrawal or addition from time to time. Within thirty (30) days
after this Lease is signed, Tenant shall deliver to Landlord a copy of Tenant's
recorded statement of partnership or certificate of limited partnership.
17.11 JOINT AND SEVERAL LIABILITY. All parties signing this Lease as Tenant
shall be jointly and severally liable for all obligations of Tenant.
17.12 FORCE MAJEURE. If Landlord or Tenant cannot perform any of its
obligations due to events beyond such party's reasonable control, the time
provided for performing such obligations shall be extended by a period of time
equal to the duration of such events. Events beyond a party's reasonable
control include, but are not limited to, acts of God, war, civil commotion,
labor disputes, strikes, fire, flood or other casualty, shortages of labor or
material, government regulation or restriction and weather conditions.
17.13 EXECUTION OF LEASE. This Lease may be executed in counterparts and, when
all counterpart documents are executed, the counterparts shall constitute a
single binding instrument. Landlord's delivery of this Lease to Tenant shall
not be deemed to be an offer to lease and shall not be binding upon either party
until executed and delivered by both parties.
17.14 SURVIVAL. All representations and warranties of Landlord and Tenant
shall survive the termination of this Lease.
17.15 EXAMINATION OF LEASE. Submission of this Lease to Tenant shall not
constitute an option to lease, and this Lease shall not be effective until
execution and delivery by both Landlord and Tenant.
17.16 SECURITY DEPOSIT.
A. As security for the full and prompt performance by Tenant of all of
Tenant's obligations hereunder, Tenant has upon execution of this Lease provided
to Landlord an unconditional irrevocable letter of credit in favor of Landlord
from a bank approved by Landlord, which approval shall not be unreasonably
withheld, in the form attached hereto as Exhibit D (the "Letter of Credit"),
which provides for security in the amount of $125,000.00 through the period
ending February 29, 2000; such Letter of Credit provides for automatic
reductions thereafter (i) to the sum of $100,000.00 effective March 1, 2000
through the period ending February 28, 2001, (ii) to the sum of $75,000.00
effective March 1, 2001 through the period ending February 28, 2002, (iii) to
the sum of $50,000.00 effective March 1, 2002 through the period ending
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February 28, 2003, and (iv) to the sum of $25,000.00 March 1, 2004 through the
period ending February 28, 2009. Tenant agrees that, in the event of any default
by Tenant under this Lease beyond the expiration of applicable grace, notice and
cure periods, Landlord shall have the right to draw down on the Letter of Credit
in an amount necessary to cure such default ("the Cure Amount") and Tenant
agrees that within ten (10) days after such initial draw of the Cure Amount,
Tenant shall replenish the Cure Amount and shall cause the Letter of Credit to
be amended in a manner that it is restored to the full amount available
thereunder prior to such draw by Landlord. Tenant further agrees that, in
addition to all of the rights and remedies provided to Landlord pursuant to
Article 14 hereof, whether or not this Lease or Tenant's right to possession
hereunder has been terminated, (a) in the event Tenant is in default under any
of the terms, covenants and conditions of this Lease beyond the expiration of
applicable grace, notice and cure periods, or (b) in the event Tenant has filed
(or there has been filed against Tenant) a petition for bankruptcy protection or
other protection from its creditors under any applicable and available law which
has not been dismissed or discharged, then Landlord may at once and without any
notice whatsoever to Tenant (including, without any notice as provided in
Article 14 hereof) be entitled to draw down on the entire amount of the Letter
of Credit then available to Landlord and apply such resulting sums toward (i)
reimbursement to Landlord for all of Landlord's then unamortized costs incurred
in leasing to Tenant the Premises demised by this Lease, and (ii) reimbursement
to Landlord for any other damages suffered by Landlord as a result of such
default. Landlord agrees to reimburse Tenant for all fees incurred by Tenant in
obtaining and maintaining such Letter of Credit, so long as such fees do not
exceed on an annual basis an amount equal to one and one half (1 1/2%) of the
then face amount of such Letter of Credit.
B. The foregoing Letter of Credit shall provide for an original
expiration date of February 29, 2000 and shall be automatically extended without
amendment for additional successive one-year periods from the original
expiration date or any future expiration date thereof, unless sixty days prior
to any such expiration date the bank sends to Landlord by certified/registered
mail, return receipt requested or overnight courier written advice that the bank
has elected not to consider the Letter of Credit renewed for any such additional
one-year period. In the event such bank so advises Landlord that such Letter of
Credit will not be so renewed, Landlord shall promptly thereafter notify Tenant
thereof in writing, and Tenant shall obtain a substitute Letter of Credit from a
bank reasonably approved by Landlord meeting all of the terms and conditions
described in Paragraph A. above, which substitute Letter of Credit ("Substitute
Letter of Credit") shall be reasonably satisfactory to Landlord and delivered to
Landlord no later than thirty (30) days prior to the expiration date of the
Letter of Credit then in effect. In the event Tenant fails to deliver such
Substitute Letter of Credit to Landlord at least thirty (30) days prior to the
expiration date of the Letter of Credit then in effect, Landlord shall in such
instance have the right without further notice to Tenant (including, without any
notice as provided in Article 14 hereof) to immediately draw down on the entire
amount of the Letter of Credit then available to Landlord; in such instance
Landlord shall retain such resulting sum as a cash security deposit and Landlord
shall have the right to use such cash security deposit to the same extent that
Landlord would be entitled to draw down on the Letter of Credit pursuant to the
terms of Paragraph A. above and Tenant shall replenish such cash security
deposit in the same manner as required for the Letter of Credit. Landlord shall
not, unless required by law, keep the security deposit separate from its general
funds or pay interest thereon to Tenant. No trust relationship is created
herein between Landlord and Tenant with respect to the security deposit, and the
security deposit may be commingled with other funds of Landlord. As between
Landlord and Tenant only, all draws under the Letter of Credit (or cash security
deposit, as the case may be) and rights of Landlord to apply the proceeds of any
such draw or draft shall be subject to the provisions of this Lease.
C. Upon expiration of the Term of this Lease, whether by expiration or
lapse of time or otherwise, and so long as Tenant is not then in default
hereunder and after Tenant shall have vacated
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the Premises in the manner required by this Lease, Landlord agrees to return to
Tenant the Letter of Credit (or cash security deposit, as the case may be) then
in Landlord's possession.
17.17 LIMITATION OF WARRANTIES. Landlord and Tenant expressly agree that there
are and shall be no implied warranties of merchantability, habitability,
suitability, fitness for a particular purpose or of any other kind arising out
of this Lease, and there are no warranties which extend beyond those expressly
set forth in this Lease. Without limiting the generality of the foregoing,
Tenant expressly acknowledges that Landlord has made no warranties or
representations concerning any Hazardous Materials or other environmental
matters affecting any part of the Property and Landlord hereby expressly
disclaims and Tenant waives any express or implied warranties with respect to
any such matters.
17.18 NO OTHER BROKERS. Tenant and Landlord represent and warrant to the other
that the brokers named in Section 1.12 above are the only agents, brokers,
finders or other parties with whom each party has dealt who may be entitled to
any commission or fee with respect to this Lease or the Premises or the
Property. Each party agrees to indemnify and hold the other harmless from any
claim, demand, cost or liability, including, without limitation, reasonable
attorneys' fees and expenses, asserted by any party other than the brokers named
in Section 1.12.
ARTICLE EIGHTEEN: TENANT IMPROVEMENT ALLOWANCE
----------------------------------------------
18.01 TENANT IMPROVEMENT ALLOWANCE. Within fifteen (15) days following
presentation to Landlord of invoices and receipts and final lien waivers,
Landlord agrees to pay to Tenant or credit against invoices therefor an
allowance (the "Tenant Improvement Allowance") in an amount not to exceed the
sum of Two Hundred Forty-five Thousand and No/100 Dollars ($245,000.00) to be
applied toward payment or reimbursement of costs incurred in connection with any
improvements Tenant desires to perform in the office and warehouse portions of
the Premises in preparation for its initial occupancy thereof, including without
limitation payment of costs associated with architectural, engineering,
permitting, construction and construction management costs, and computer and
telecommunications cabling costs. All such work shall be subject to, and
performed in accordance with the conditions set forth in Section 10.05 hereof.
Tenant expressly covenants and agrees that, in the event the current occupant of
the warehouse portion of the Premises remains in occupancy of such space during
the time Tenant commences any improvement work in the office portion of the
Premises, Tenant will perform such work in a manner that does not unreasonably
interfere with or disrupt the use of the warehouse portion of the Premises. If,
in the course of performing the initial improvement work, Tenant becomes aware
of any Hazardous Materials existing in the Premises prior to the Commencement
Date in violation of existing applicable laws, Landlord agrees that Landlord
shall be responsible for the cost of remedying any such violation to the extent
required by any governmental authority.
The foregoing Tenant Improvement Allowance is for Tenant personally and may
not be applied or used for the benefit of any subtenant approved by Landlord nor
will such Allowance inure to the benefit of any permitted assignee of Tenant.
It shall be a condition to the application of such Tenant Improvement Allowance
that Tenant not be in default under any of the terms, covenants and conditions
of this Lease beyond the expiration of applicable notice, grace and cure periods
at any time such Allowance is requested. The Tenant Improvement Allowance is
applicable only in connection with improvements to be made to the Premises and
payment of the above-described referral fee. It shall be a condition of
Landlord's obligation to pay Tenant any portion of such Allowance that Tenant
provide Landlord with contractor's affidavits and final waivers of lien from
those persons entitled to lien rights against the Premises covering all labor
and materials expended and used, and invoices reasonably
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acceptable to Landlord establishing the actual cost of and full payment for all
items purchased with such Allowance. Funds may be drawn against the Tenant
Improvement Allowance for a period of six (6) months after the Lease
Commencement Date.
Signed on , 19 LANDLORD
--------------- ----
at CABOT INDUSTRIAL PROPERTIES,
------------------------------- L.P., a Delaware limited partnership
By: CABOT INDUSTRIAL TRUST, a
Maryland real estate investment
trust, its General Partner
By:
Name:
-------------------------------------
Title:
------------------------------------
Signed on , 19 TENANT
--------------- ----
at SALESLINK CORPORATION, a
------------------------------- Delaware corporation
By:
Its:
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<PAGE>
EXHIBIT "A" - THE PROPERTY
Page 28 of 35
<PAGE>
EXHIBIT "A" - THE PROPERTY
[Site Plan appears here]
SITE PLAN
<PAGE>
EXHIBIT "A-1"
Parking Area
------------
[Site plan appears here]
<PAGE>
EXHIBIT "B" - THE PREMISES
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EXHIBIT "B" - THE PREMISES
[Floor Plan appears here]
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EXHIBIT "C" - RULES AND REGULATIONS
1. No advertisements, pictures or signs of any sort shall be displayed on or
outside the Premises without the prior written consent of Landlord. This
prohibition shall include any portable signs or vehicles placed within the
parking lot, common areas or on streets adjacent thereto for the purpose of
advertising or display. Landlord shall have the right to remove any such
unapproved item without notice and at Tenant's expense.
2. Tenant shall not park or store motor vehicles, trailers or containers
outside the Premises after the conclusion of normal daily business activity
except in approved areas specifically designated by Landlord, acting
reasonably.
3. Tenant shall not use any method of heating or air-conditioning other than
that supplied by Landlord without the prior written consent of Landlord.
4. All window coverings and window films or coatings installed by Tenant and
visible from outside of the building require the prior written approval of
Landlord. Except for dock shelters and seals as may be expressly permitted
by Landlord, no awnings or other projections shall be attached to the
outside walls of the building.
5. Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance on, in or around the Premises unless approved by Landlord.
Tenant shall not use, keep or permit to be used or kept any flammable or
combustible materials without proper governmental and approvals.
6. Tenant shall not use, keep or permit to be used or kept food or other
edible materials in or around the Premises in such a manner as to attract
rodents, vermin or other pests. Tenant shall not permit cooking in or about
the Premises other than in microwave ovens.
7. Tenant shall not use or permit the use of the Premises for lodging or
sleeping, for public assembly, or for any illegal or immoral purpose.
8. Tenant shall not alter any lock or install any new locks or bolts on any
door at the Premises without the prior written consent of Landlord. Tenant
agrees not to make any duplicate keys without the prior consent of
Landlord.
9. Tenant shall park motor vehicles only in those general parking areas as
designated by Landlord except for active loading and unloading. During
loading and unloading of vehicles or containers, Tenant shall not
unreasonably interfere with traffic flow within the industrial park and
loading and unloading areas of other tenants.
10. Storage of propane tanks, whether interior or exterior, shall be in secure
and protected storage enclosures approved by the local fire department and,
if exterior, shall be located in areas specifically designated by Landlord.
Safety equipment, including eye wash stations and approved neutralizing
agents, shall be provided in areas used for the maintenance and charging of
lead-acid batteries. Tenant shall protect electrical panels and building
mechanical equipment from damage from forklift trucks.
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11. Tenant shall not disturb, solicit or canvas any occupant of the Building or
industrial park and shall cooperate to prevent same.
12. No person shall go on the roof of the Property without Landlord's
permission except to perform obligations under its lease.
13. No animals (other than seeing eye dogs) or birds of any kind may be brought
into or kept in or about the Premises.
14. Machinery, equipment and apparatus belonging to Tenant which cause noise or
vibration that may be transmitted to the structure of the Building to such
a degree as to be objectionable to Landlord or other tenants or to cause
harm to the Building shall be placed and maintained by Tenant, at Tenant's
expense, on vibration eliminators or other devices sufficient to eliminate
the transmission of such noise and vibration. Tenant shall cease using any
such machinery which causes objectionable noise and vibration which cannot
be sufficiently mitigated.
15. All goods, including material used to store goods, delivered to the
Premises of Tenant shall be immediately moved into the Premises and shall
not be left in parking or exterior loading areas overnight.
16. Tractor trailers which must be unhooked or parked with dolly wheels beyond
the concrete loading areas must use steel plates or wood blocks of
sufficient size to prevent damage to the asphalt paving surfaces. No
parking or storing of such trailers will be permitted in the auto parking
areas of the industrial park or on streets adjacent thereto.
17. Forklifts which operate on asphalt paving areas shall not have solid rubber
tires and shall use only tires that do not damage the asphalt.
18. Tenant shall be responsible for the safe storage and removal of all
pallets. Pallets shall be stored behind screened enclosures at locations
approved by the Landlord. If pallets are stored within the Premises,
storage shall comply with safe practices as described in Factory Mutual
Loss Prevention Data Sheet 8-24.
19. Tenant shall be responsible for the safe storage and removal of all trash
and refuse. All such trash and refuse shall be contained in suitable
receptacles stored behind screened enclosures at locations approved by
Landlord. Landlord reserves the right to remove, at Tenant's expense and
without further notice, any trash or refuse left elsewhere outside of the
Premises or in the industrial park.
20. Tenant shall not store or permit the storage or placement of goods or
merchandise in or around the common areas surrounding the Premises. No
displays or sales of merchandise shall be allowed in the parking lots or
other common areas.
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21. Tenant shall appoint an Emergency Coordinator who shall be responsible for
assuring notification of the local fire department in the event of an
emergency, assuring that sprinkler valves are kept open and implementing
the Factory Mutual "Red Tag Alert" system including weekly visual
inspection of all sprinkler system valves on or within the Premises.
Landlord
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Tenant
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EXHIBIT D
IRREVOCABLE LETTER OF CREDIT
NO.
, 19
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BENEFICIARY: ACCOUNT PARTY:
----------- -------------
Cabot Industrial Properties, L.P. SalesLink Corporation Inc.
c/o Cabot Partners
Two Center Plaza
Suite 200
Boston, Massachusetts 02108-1906
Attn:
----------
EXPIRATION DATE: December 1, 1999 AMOUNT: Not to exceed $125,000.00
--------------- ------
Gentlemen:
We hereby establish our unconditional and irrevocable Letter of Credit in your
favor for the account of Prime Graphics, Inc. for a sum not exceeding U.S.
$125,000.00 available by your sight draft drawn on us. Unless a draft has
previously been delivered to us hereunder, this Letter of Credit shall
automatically be reduced to the sum of $100,000.00 effective March 1, 2000
through the period ending February 28, 2001, (ii) to the sum of $75,000.00
effective March 1, 2001 through the period ending February 28, 2002, (iii) to
the sum of $50,000.00 effective March 1, 2002 through the period ending February
28, 2003, and (iv) to the sum of $25,000.00 March 1, 2004 through the period
ending February 28, 2009.
This draft must be marked: "Drawn under Irrevocable Letter of Credit No.
__________________ dated ".
We hereby agree with the drawers, endorsers and bona fide holders of the draft
drawn and negotiated in compliance with the terms of this credit, that said
draft will be duly honored by 3:00 P.M. on the day presented if received at this
office on or before 11:00 AM.
It is a condition of this Letter of Credit that it shall be deemed automatically
extended without amendment for additional successive one year periods from the
expiration hereof, or any future expiration date, unless 60 days prior to any
expiration date we notify you by certified mail, return receipt requested or
overnight courier that we elect not to consider this Letter of Credit renewed
for any such additional period.
This Letter of Credit is transferable, assignable, retransferable and
reassignable and may be successively transferred or assigned. Partial drawings
and reductions are permitted.
We hereby engage with you that documents presented in conformity with the terms
of this Letter of Credit will be duly honored by us.
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Except so far as otherwise expressly stated this documentary credit is subject
to uniform customs and practice for documentary credits, 1993 revision, ICC
Publication No. 500, excluding Article 17.
Name of Bank
BY:
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EXHIBIT "E"
ACCEPTANCE OF PREMISES MEMORANDUM
DATE:
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LANDLORD:
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TENANT:
------------------------------
BUILDING:
----------------------------
RE: Lease dated (the "Lease")
---------------
1. Tenant agrees that the Work and Landlord's Work in the Premises has
been substantially completed in accordance with the requirements of the Lease,
except the "punch list items" which are listed on Schedule 1 attached hereto.
2. We hereby confirm that the Lease Commencement Date is
_______________, 19__ and we hereby confirm that the expiration date of the Term
of the Lease is __________________, 19__.
3. Terms which are defined in the Lease shall have the same meanings when
used in this Agreement.
SIGNED:
LANDLORD: TENANT:
By: By:
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Title: Title:
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