Kentucky-Hebron-2375 Progress Drive Lease - Dugan Financing LLC and ViaCell Inc.
LEASE AGREEMENT
THIS LEASE is executed this 12th day of April, 2002, by and between DUGAN
FINANCING LLC, a Delaware limited liability company ("Landlord"), and VIACELL,
INC., a Delaware corporation ("Tenant").
WITNESSETH:
ARTICLE 1-LEASE OF PREMISES
Section 1.01. Basic Lease Provisions and Definitions.
A. Leased Premises (shown outlined on Exhibit A attached hereto): 2375
Progress Drive, Hebron, Kentucky 41048; Building No. 4 (the "Building");
located in SkyPort 275 Business Park (the "Park");
B. Rentable Area: approximately 12,375 square feet;
C. Tenant's Proportionate Share: 17.05%;
D. Minimum Annual Rent:
Years 1-5 $81,675.00 per year
Years 6-10 $91,822.56 per year;
E. Monthly Rental Installments:
Months 1-60 $ 6,806.25 per month
Months 61-120 $ 7,651.88 per month;
F. Landlord's Share of Expenses: $1.10 times the rentable area of the Leased
Premises which is included in the Minimum Annual Rent;
G. Lease Term: Ten (10) years and zero (0) months;
H. Commencement Date: June 1, 2002;
I. Security Deposit: $134,000.00 subject to Article 4;
J. Guarantor(s): None;
K. Broker(s): Duke Realty Services Limited Partnership representing Landlord
and Colliers International and Richards Barry Joyce & Partners
representing Tenant;
L. Permitted Use: General office, warehousing, preparation, processing and
storage of cord blood samples and related purposes;
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M. Address for notices:
Landlord: Dugan Financing LLC
c/o Duke Realty Services Limited Partnership
Attn: Property Manager
4555 Lake Forest Drive, Suite 400
Cincinnati, OH 45242
With a copy to: Dugan Financing LLC
c/o Duke Realty Services Limited Partnership
Attn: Nick Anthony
600 East 96th Street, Suite 100
Indianapolis, IN 46240
Tenant: ViaCell, Inc.
Attn: Mary Thistle
131 Clarendon Street
Boston, MA 02116
With a copy to: Palmer & Dodge LLP
Attn: Thomas G. Schnorr, Esq.
111 Huntington Avenue
Boston, MA 02199
Address for rental and other payments:
Dugan Financing LLC
P.O. Box 660050
Indianapolis, IN 46266-0050
Section 1.02. Leased Premises. Landlord hereby leases to Tenant and Tenant
leases from Landlord, under the terms and conditions herein, the Leased
Premises. Landlord also grants to Tenant the non-exclusive use of the common
areas serving the Leased Premises including the parking areas.
ARTICLE 2 - TERM AND POSSESSION
Section 2.01. Term. The term of this Lease ("Lease Term") shall be for the
period of time and shall commence on the Commencement Date described in the
Basic Lease Provisions or such earlier date that Landlord delivers the Leased
Premises to Tenant ready for Tenant's occupancy. Upon delivery of possession of
the Leased Premises to Tenant, Tenant shall execute a letter of understanding
acknowledging (i) the Commencement Date of this Lease, and (ii) that Tenant has
accepted the Leased Premises. If Tenant takes possession of and occupies the
Leased Premises, Tenant shall be deemed to have accepted the Leased Premises and
that the condition of the Leased Premises and the Building was at the time
satisfactory and in conformity with the
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provisions of this Lease in all respects (except that Tenant shall not be deemed
to have accepted the Leased Premises upon exercising its access rights set forth
in Section 2.02).
Section 2.02. Construction of Tenant Improvements. Tenant has personally
inspected the Leased Premises and accepts the same "AS IS" without
representation or warranty by Landlord of any kind and with the understanding
that Landlord shall have no responsibility with respect thereto except to
perform and complete the work on the tenant finish improvements designated as
Landlord's obligations in the attached Exhibit B, subject to force majeure and
Tenant Delays (as defined in Exhibit B ).
Section 2.03. Surrender of the Premises. Upon the expiration or earlier
termination of this Lease, Tenant shall immediately surrender the Leased
Premises to Landlord in broom-clean condition and in good condition and repair,
reasonable wear and tear excepted. Tenant shall also remove its personal
property, trade fixtures and any of Tenant's alterations designated by Landlord,
promptly repair any damage caused by such removal, and restore the Leased
Premises to the condition existing prior to the installation of such items,
reasonable, wear and tear excepted. Prior to the expiration or earlier
termination of this Lease, Tenant shall remove the chillers, cooling towers and
air handlers supported by the chillers and cooling towers and replace the air
handlers with gas fired roof top units per Landlord's standards. Landlord
reserves the right to require Tenant to remove the clean room, the entrance and
exit associated therewith and the wall around the freezers prior to the
expiration or earlier termination of this Lease and other items to be removed as
indicated on Exhibit B-1. If Tenant fails to do so, Landlord may restore the
Leased Premises to such condition at Tenant's expense, Landlord may cause all of
said property to be removed at Tenant's expense, and Tenant hereby agrees to pay
all the costs and expenses thereby reasonably incurred. All Tenant property
which is not removed within ten (10) days following Landlord's written demand
therefor shall be conclusively deemed to have been abandoned by Tenant, and
Landlord shall be entitled to dispose of such property at Tenant's cost without
thereby incurring any liability to Tenant. The provisions of this section shall
survive the expiration or other termination of this Lease.
Section 2.04. Holding Over. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant
shall, become a tenant from month to month at one hundred fifty percent (150%)
of the Monthly Rental Installment in effect at the end of the Lease Term, and
otherwise upon the terms, covenants and conditions herein specified, so far as
applicable. Acceptance by Landlord of rent in such event shall not result in a
renewal of this Lease, and Tenant shall vacate and surrender the Leased Premises
to Landlord upon Tenant being given thirty (30) days' prior written notice from
Landlord to vacate. This Section 2.04 shall in no way constitute a consent by
Landlord to any holding over by Tenant upon the expiration or earlier
termination of this Lease, nor limit Landlord's remedies in such event.
ARTICLE 3 - RENT
Section 3.01. Base Rent. Tenant shall pay to Landlord the Minimum Annual
Rent in the Monthly Rental Installments, in advance, without deduction or
offset,
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beginning on the Commencement Date and on or before the first day of each and
every calendar month thereafter during the Lease Term. The Monthly Rental
Installment for partial calendar months shall be prorated.
Section 3.02. Additional Rent. In addition to the Minimum Annual Rent
Tenant shall pay to Landlord for each calendar year during the Lease Term, as
"Additional Rent," Tenant's Proportionate Share of all costs and expenses
incurred by Landlord during the Lease Term for Real Estate Taxes and Operating
Expenses for the Building and common areas (collectively "Common Area Charges")
to the extent such Common Area Charges exceed Landlord's Share of Expenses.
"Operating Expenses" shall mean all of Landlord's expenses for operation,
repair, replacement and maintenance to keep the Building and common areas in
good order, condition and repair (including all additional direct costs and
expenses of operation and maintenance of the Building which Landlord reasonably
determines it would have paid or incurred during such year if the Building had
been fully occupied), including, but not limited to, management fees; utilities;
stormwater discharge fees; license, permit, inspection and other fees; fees and
assessments imposed by any covenants or owners' association; security services;
insurance premiums and deductibles, painting, and maintenance, repair and
replacement of the driveways, parking areas (including snow removal), exterior
lighting, landscaped areas, walkways, curbs, drainage strips, sewer lines,
exterior walls, foundation, structural frame, roof and gutters. The cost of any
capital improvement shall be amortized over the useful life of such improvement,
and only the amortized portion shall be included in Operating Expenses.
Operating Expenses shall not include the following:
1. Leasing commissions.
2. The cost of tenant finish improvements provided solely for the
benefit of other tenants or proposed tenants in the Building.
3. Costs of correcting building code violations which violations were
in existence on the Commencement Date.
4. Depreciation on the Building.
5. The cost of services separately charged to and paid by another
tenant in the Building.
6. Interest payments and financing costs associated with Building
financing.
7. Legal fees associated with the preparation, interpretation and/or
enforcement of leases.
8. Repairs and replacements for which and to the extent that Landlord
has been reimbursed by insurance and/or paid pursuant to warranties.
9. Advertising and promotional expenses.
10. Costs representing amounts paid to an affiliate of Landlord for
services or materials which are in excess of the amounts which would
have been paid in the absence of such relationship.
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11. Costs resulting from defects in the design or construction of the
Building.
12. Salaries of executives and principals of Landlord above the grade of
property manager.
"Real Estate Taxes" shall include any form of real estate tax or
assessment or service payments in lieu thereof, and any license fee, commercial
rental tax, improvement bond or other similar charge or tax (other than
inheritance, personal income or estate taxes) imposed upon the Building or
common areas (or against Landlord's business of leasing the Building) by any
authority having the power to so charge or tax, together with costs and expenses
of contesting the validity or amount of Real Estate Taxes. Notwithstanding
anything to the contrary contained in this Lease, Real Estate Taxes shall not
include any inheritance, estate, succession, transfer, gift, franchise,
corporation, income or profit tax or capital levy that is or may be imposed upon
Landlord. Real Estate Taxes shall also not include interest and penalties for
late payment. If Landlord secures an abatement or refund of any Real Estate
Taxes, Tenant shall receive Tenant's Proportionate Share of the amount of such
abatement or refund (i.e., the net amount remaining after paying all reasonable
costs and expenses of securing the abatement or refund, including reasonable
attorneys' fees) as a credit to be applied by Landlord against Minimum Annual
Rent next becoming due (or, if no further Minimum Annual Rent is due from
Tenant, by a cash payment by Landlord to Tenant). Landlord's obligation to pay
such abatement or refund to Tenant shall survive the expiration or termination
of this Lease.
Section 3.03. Payment of Additional Rent. Landlord shall estimate the
total amount of Additional Rent to be paid by Tenant during each calendar year
of the Lease Term, pro-rated for any partial years. Commencing on the
Commencement Date, Tenant shall pay to Landlord each month, at the same time the
Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the
estimated Additional Rent for such year. Within one hundred twenty (120) days
after the end of each calendar year, Landlord shall submit to Tenant a statement
of the actual amount of such Additional Rent and within thirty (30) days after
receipt of such statement, Tenant shall pay any deficiency between the actual
amount owed and the estimates paid during such calendar year. In the event of
overpayment, Landlord shall credit the amount of such overpayment toward the
next installments of Minimum Rent or reimburse Tenant within thirty (30) days in
the case of any overpayment made during the final year of the Lease Term.
Tenant shall have the right to inspect, at reasonable times and in a
reasonable manner, during the ninety (90) day period following the delivery of
Landlord's statement of the actual amount of the Additional Rent, such of
Landlord's books of account and records as pertain to and contain information
concerning such costs and expenses in order to verify the amounts thereof.
Tenant's failure to exercise its rights hereunder within said ninety (90) day
period shall be deemed a waiver of its right to inspect or contest the method,
accuracy or amount of the Additional Rent. In the event of any undisputed error,
Landlord shall make a correcting payment in full to Tenant within thirty (30)
days after the determination of the amount of such error. In, the event of any
errors on the part of Landlord which Landlord agrees were errors in excess of
fifteen percent (15%) of Tenant's actual operating expense liability for any
calendar year, Landlord will also
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reimburse Tenant for all costs of an audit reasonably incurred by Tenant within
the above thirty (30) day period. If within the period aforesaid, Tenant
provides Landlord with its notice disputing the correctness of the statement,
and if such dispute shall have not been settled by agreement, Tenant may submit
the dispute to a reputable firm of independent certified public accountants
selected by Tenant and approved by Landlord, such approval shall not be
unreasonably withheld or delayed, and the decision of such accountants shall be
conclusive and binding upon the parties. If such accountant decides that there
was an error, Landlord will make correcting payment. The fees and expenses
involved in such decision shall be borne by the unsuccessful party.
Section 3.04. Late Charges. Tenant acknowledges that Landlord shall incur
certain additional unanticipated administrative and legal costs and expenses if
Tenant fails to timely pay any payment required hereunder. Therefore, in
addition to the other remedies available to Landlord hereunder, if any payment
required to be paid by Tenant to Landlord hereunder shall become overdue, such
unpaid amount shall bear interest from the due date thereof to the date of
payment at the prime rate (as reported in the Wall Street Journal) of interest
("Prime Rate") plus six percent (6%) per annum.
Notwithstanding the above, Landlord shall provide Tenant with a written
notice of such payment default prior to assessing the late charge and Tenant
shall have an additional five (5) days to cure such payment default before
Landlord assesses any late charges; provided, however, that Landlord shall not
be required to give such notice more than one (1) time with respect to any
particular payment default, nor more than two (2) times in the consecutive
twelve (12) month period with respect to any payment defaults in the aggregate.
Section 3.05. Nature of Rent. Landlord and Tenant agree that any base
rent, percentage rent, if any, and all Additional Rent paid to Landlord under
this Lease (collectively referred to in this Section as "Rent") shall qualify as
"rents from real property" within the meaning of Section 512(b)(3) of the
Internal Revenue Code of 1986, as amended (the "Code") and the U.S. Department
of Treasury Regulations promulgated thereunder (the "Regulations"). In the event
that Landlord, in its sole discretion, determines that there is any risk that
all or part of any Rent shall not qualify as "rents from real property" for the
purposes of Section 512(b)(3) of the Code and the Regulations promulgated
thereunder, Tenant agrees (i) to cooperate with Landlord to restructure this
Lease so as to cause all Rent to qualify as "rents from real property", and (ii)
to permit an assignment of this Lease, provided, however, that any adjustments
required pursuant to this paragraph shall be made so as to produce the
equivalent Rent (in economic terms) payable prior to such adjustment.
ARTICLE 4 - SECURITY DEPOSIT - IRREVOCABLE LETTER OF CREDIT
Tenant shall, upon execution of this Lease, provide to Landlord an
irrevocable letter of credit, in the form attached hereto as Exhibit C. The
letter of credit shall be in the amount of One Hundred Thirty-four Thousand
Dollars ($134,000.00) and shall constitute the "Security Deposit" for the full
and faithful performance by Tenant of all of
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the terms, conditions and covenants contained in the Lease on the part of the
Tenant to be performed, including but not limited to the payment of rent.
Landlord shall be entitled to draw upon the letter of credit (i) upon a
Default by Tenant of any term, condition or covenant in the Lease beyond any
applicable cure period, or (ii) unless, no later than forty-five (45) days prior
to the expiration of the letter of credit Tenant delivers to Landlord a renewal
or replacement thereof. If such letter of credit has not been renewed or a new
letter of credit satisfactory to Landlord has been delivered to Landlord at
least forty-five (45) days prior to the expiration date thereof, Landlord may
immediately draw upon such letter of credit and hold the cash proceeds thereof
in lieu of such letter of credit.
Such letter of credit shall be renewed on an annual basis and shall riot
expire less than sixty (60) days after the expiration or earlier termination of
this Lease. All sums held by Landlord pursuant to this Article 4 shall be
without interest.
In the event of a sale of the Building of which the Leased Premises are a
part, Landlord shall have the right to transfer the Security Deposit to its
purchaser at no cost to Landlord and Landlord shall be released by Tenant from
all responsibility for the return of such, and Tenant agrees to look solely to
the new purchaser for the return of such Security Deposit provided that Landlord
gives written notice of such transfer to Tenant.
Notwithstanding the above, provided (i) Tenant is not in Default beyond
any applicable cure period; (ii) Landlord has not drawn down on the letter of
credit; and (iii) Tenant provides written evidence satisfactory to Landlord that
Tenant has cash on hand of at least $100,000,000.00, Tenant shall have the right
on the twenty-fifth (25th) month of the Lease Term or the sixty-first (61st)
month of the Lease Term if such conditions were not met on the twentyfifth
(25th) month to reduce the letter of credit to $77,000.00. In no event shall
Tenant be entitled to reduce the letter of credit below $77,000.00.
ARTICLE 5 - USE
Section 5.01. Use of Leased Premises. The Leased Premises are to be used
by Tenant solely for the Permitted Use and for no other purposes without the
prior written consent of Landlord. As of the execution date of this Lease, the
land containing the Building is zoned I-1.
Section 5.02. Covenants of Tenant Regarding Use. Tenant shall (i) use and
maintain the Leased Premises and conduct its business thereon in a safe,
careful, reputable and lawful manner, (ii) comply with all laws, rules,
regulations, orders, ordinances, directions and requirements of any governmental
authority or agency, now in force or which may hereafter be in force, including
without limitation those which shall impose upon Landlord or Tenant any duty
with respect to or triggered by a change in the use or occupation of, or any
improvement or alteration to, the Leased Premises, and (iii) comply with and
obey all reasonable directions of the Landlord, including the nondiscriminatory
Rules and Regulations attached hereto as Exhibit D and as may be modified from
time to time by Landlord on reasonable notice to Tenant. Tenant shall not
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do or permit anything to be done in or about the Leased Premises or common areas
which will in anyway obstruct or interfere with the rights of other tenants or
occupants of the Building or injure or annoy them. Landlord shall not be
responsible to Tenant for the non-performance by any other tenant or occupant of
the Building of any of the Building Rules and Regulations but agrees to take
reasonable measures to assure such other tenant's compliance with the Rules and
Regulations. Tenant shall not overload the floors of the Leased Premises. All
damage to the floor structure or foundation of the Building due to improper
positioning or storage of items or materials shall be repaired by Landlord at
the sole expense of Tenant, who shall reimburse Landlord immediately therefor
upon demand. Tenant shall not use the Leased Premises, or allow the Leased
Premises to be used, for any purpose or in any manner which would invalidate any
policy of insurance now or hereafter carried on the Building or increase the
rate of premiums payable on any such insurance policy unless Tenant reimburses
Landlord as Additional Rent for any increase in premiums charged.
Section 5.03. Landlord's Rights Regarding Use. In addition to the rights
specified elsewhere in this Lease, Landlord shall have the following rights
regarding the use of the Leased Premises or the common areas, each of which may
be exercised without notice or liability to Tenant, (a) Landlord may install
such signs, advertisements, notices or tenant identification information as it
shall deem necessary or proper in the common areas only (not in the Leased
Premises) other than signs required by law; (b) Landlord shall have the right at
any time to control, change or otherwise alter the common areas or utilities
servicing the Building as it shall deem necessary or proper so long as such
control, change or alteration does not materially interfere with Tenant's access
to and use of the Leased Premises; and (c) Landlord or Landlord's agent shall be
permitted to inspect or examine the Leased Premises at any reasonable time upon
prior notice to Tenant (except in the case of an emergency), and Landlord shall
have the right to make any repairs to the Leased Premises which are necessary
for its preservation; provided, however, that any repairs made by Landlord shall
be at Tenant's expense, except as provided in Section 7.02 hereof. Landlord
shall incur no liability to Tenant for such entry, nor shall such entry
constitute an eviction of Tenant or a termination of this Lease, or entitle
Tenant to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND SERVICES
Tenant shall obtain in its own name and pay directly to the appropriate
supplier the cost of all utilities and services serving the Leased Premises.
However, if any services or utilities are jointly metered with other property,
Landlord shall make a reasonable determination of Tenant's proportionate share
of the cost of such utilities and services (at rates that would have been
payable if such utilities and services had been directly billed by the utilities
or services providers) and Tenant shall pay such share to Landlord within
fifteen (15) days after receipt of Landlord's written statement. Landlord shall
not be liable in damages or otherwise for any failure or interruption of any
utility or other Building service and no such failure or interruption shall
entitle Tenant to terminate this Lease or withhold sums due hereunder. In the
event of utility "deregulation", Landlord shall choose the service provider.
Landlord shall provide water and sewer services to the Leased Premises.
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Notwithstanding anything in this Lease to the contrary, if (i) the
restoration of service is entirely within Landlord's control, (ii) Landlord
negligently fails to restore such service within a reasonable time, and (iii)
the Leased Premises are untenantable (meaning that Tenant is unable to use such
space in the normal course of its business for the use permitted under this
Lease) for more than five (5) consecutive business days, then Tenant shall
notify Landlord (and Landlord's lender, if any) in writing that Tenant intends
to abate rent. If service has not been restored within three (3) days of
Landlord's receipt of Tenant's notice, then Minimum Annual Rent and Additional
Rent shall abate on a per diem basis for each day after such five (5) day period
during which the Leased Premises remain untenantable. Such abatement shall be
Tenant's sole remedy for Landlord's failure to restore service as set forth
above, and Tenant shall not be entitled to damages (consequential or otherwise)
as a result thereof.
ARTICLE 7 - MAINTENANCE AND REPAIRS
Section 7.01. Tenant's Responsibility. During the Lease Term, Tenant
shall, at its own cost and expense, maintain the Leased Premises in good
condition, regularly servicing and promptly making all repairs and replacements
thereto, including but not limited to the electrical systems, heating and air
conditioning systems, plate glass, floors, windows and doors, sprinkler and
plumbing systems, and shall obtain a preventive maintenance contract on the
heating, ventilating and air-conditioning systems, and provide Landlord with a
copy thereof. The preventive maintenance contract shall meet or exceed Landlord'
standard maintenance criteria, and shall provide for the inspection and
maintenance of the heating, ventilating and air conditioning system on not less
than a semi-annual basis.
Section 7.02. Landlord's Responsibility. During the Lease Term, Landlord
shall maintain in good condition and repair, and replace as necessary, the roof,
roof membrane (including the interior ceiling of the Leased Premises if damaged
by leaking), exterior walls, load bearing walls, foundation and structural frame
of the Building and the parking and landscaped areas (including providing snow
and ice removal), the costs of which shall be included in Operating Expenses;
provided, however, that to the extent any of the foregoing items require repair
because of the negligence, misuse, or default of Tenant, its employees, agents,
customers or invitees, Landlord shall make such repairs solely at Tenant's
expense. Landlord shall be responsible for paying any fines or penalties
assessed by any governmental authority if the Building fails to meet codes and
regulations as long as such failure is not due to Tenant's use, acts or
omissions.
Section 7.03. Alterations. Tenant shall not permit alter Premises unless
and until the plans have been approved by Landlord in writing. As a condition of
such approval, Landlord may require Tenant to remove the alterations and restore
the Leased Premises upon termination of this Lease; otherwise, all such
alterations shall at Landlord's option become a part of the realty and the
property of Landlord, and shall not be removed by Tenant. Landlord shall notify
Tenant what alterations need to be removed at the time Landlord provides its
approval to such alterations. Tenant shall ensure that all alterations shall be
made in accordance with all applicable laws, regulations and building codes, in
a good and workmanlike manner and of quality equal to or better than the
original
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construction of the Building. Upon completion of the work, Tenant shall provide
a final affidavit of lien waiver from the general contractor who shall be
required to obtain lien waivers from its subcontractors, and such lien waiver
shall be in a form acceptable to Landlord or as provided by the laws of the
State of Kentucky. No person shall be entitled to any lien derived through or
under Tenant for any labor or material furnished to the Leased Premises, and
nothing in this Lease shall be construed to constitute a consent by Landlord to
the creation of any lien. If any lien is filed against the Leased Premises for
work claimed to have been done for or material claimed to have been furnished to
Tenant, Tenant shall cause such lien to be discharged of record within thirty
(30) days after filing. Tenant shall indemnify Landlord from all reasonable
costs, losses, expenses and attorneys' fees in connection with any construction
or alteration and any related lien.
ARTICLE 8 - CASUALTY
Section 8.01. Casualty. In the event of total or partial destruction of
the Building or the Leased Premises by fire or other casualty, Landlord agrees
to promptly restore and repair the Leased Premises; provided, however,
Landlord's obligation hereunder shall be limited to the reconstruction of such
of the tenant finish improvements as were originally required to be made by
Landlord, if any. Rent shall proportionately abate during the time that the
Leased Premises or part thereof are unusable because of any such damage.
Notwithstanding the foregoing, if the Leased Premises are (i) so destroyed that
they cannot be repaired or rebuilt within one hundred eighty (180) days from the
casualty date; or (ii) destroyed by a casualty where the insurance proceeds are
not released by any mortgagee entitled thereto or are insufficient to rebuild
the Building and the Leased Premises; then, in case of a clause (i) casualty,
either Landlord or Tenant may, or, in the case of a clause (ii) casualty, then
Landlord may, upon thirty (30) days' written notice to the other party,
terminate this Lease with respect to matters thereafter accruing.
Section 8.02. Fire and Extended Coverage Insurance. During the Lease Term,
Landlord shall maintain all risk coverage insurance on the Building insuring the
full replacement value of the Building, but shall not protect Tenant's property
on the Leased Premises; and, notwithstanding the provisions of Section 9.01,
Landlord shall not be liable for any casualty damage to Tenant's property,
regardless of cause, including the negligence of Landlord and its employees,
agents and invitees. Tenant hereby expressly waives any right of recovery
against Landlord for casualty damage to any, property of Tenant located' in or
about the Leased Premises, however caused, including the negligence of Landlord
and its employees, agents and invitees. Notwithstanding the provisions of
Section 9.01 below, Landlord hereby expressly waives any rights of recovery
against Tenant for casualty damage to the Leased Premises or the Building which
is insured against under Landlord's all risk coverage insurance. All insurance
policies maintained by Landlord or Tenant as provided in this Lease shall
contain an agreement by the insurer waiving the insurer's right of subrogation
against the other party to this Lease.
ARTICLE 9 - LIABILITY INSURANCE
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Section 9.01. Tenant's Responsibility. Landlord shall not be liable to
Tenant or to any other person for (i) damage to property or injury or death to
persons due to the condition of the Leased Premises, the Building or the common
areas, or (ii) the occurrence of any accident in or about the Leased Premises or
the common areas, or (iii) any act or neglect of Tenant or any other tenant or
occupant of the Building or of any other person, unless such damage, injury or
death is directly and solely the result of Landlord's negligence; and Tenant
hereby releases Landlord from any and all liability for the same. Tenant shall
be liable for, and shall indemnify and defend Landlord from, any and all
liability for (i) any act or neglect of Tenant and any person coming on the
Leased Premises or common areas by the license of Tenant, express or implied,
(ii) any damage to the Leased Premises, and (iii) any loss of or damage or
injury to any person (including death resulting therefrom) or property occurring
in, on or about the Leased Premises, regardless of cause, except for any loss or
damage from fire or casualty insured as provided in Section 8.02 and except for
that caused solely and directly by Landlord's negligence or willful misconduct.
This provision shall survive the expiration or earlier termination of this
Lease.
Section 9.02. Tenant's Insurance. Tenant shall carry general public
liability and property damage insurance, issued by one or more insurance
companies acceptable to Landlord, with the following minimum coverages:
A. Worker's Compensation: minimum statutory amount.
B. Commercial General Liability Insurance, including blanket, contractual
liability, broad form property damage, personal injury, completed
operations, products liability, and fire damage: Not less than $3,000,000
Combined Single Limit for both bodily injury and property damage.
C. All Risk Coverage, Vandalism and Malicious Mischief, and Sprinkler Leakage
insurance, if applicable, for the full cost of replacement of Tenant's
property.
D. Business interruption insurance.
The insurance policies shall protect Tenant and Landlord as their
interests may appear, naming Landlord and Landlord's managing agent and
mortgagee as additional insureds, and shall provide that they may not be
canceled on less than thirty (30) days' prior written notice to Landlord. Tenant
shall furnish Landlord with Certificates of Insurance evidencing all required
coverages on or before the Commencement Date. If Tenant fails to carry such
insurance and furnish Landlord with such Certificates of Insurance within a
reasonable time after a request to do so, Landlord may obtain such insurance and
collect the cost thereof from Tenant.
Notwithstanding anything to the contrary contained in Article 9, Tenant
may, at its option, satisfy any or all of its obligations to insure with (a) a
so-called "blanket" policy or policies of insurance, or (b) an excess or
umbrella liability policy or policies of insurance, now or hereafter carried and
maintained by Tenant; provided, however, that Landlord and any additional party
named pursuant to the terms of this Lease shall be
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named as additional insureds thereunder as their respective interests may
appear, and provided that the coverage afforded Landlord and any additional
named insureds shall not be reduced or diminished by reason of the use of any
such blanket or umbrella policy or policies and that all the requirements set
forth in this Article 9 are otherwise satisfied. Tenant agrees to permit
Landlord at any reasonable time to inspect any policies of insurance of Tenant
required to be provided herein.
Section 9.03. Landlord's Responsibility. Landlord shall assume the risk
of, be responsible for, have the obligation to insure against, and indemnify
Tenant and hold it harmless from any and all liability for any loss of or damage
or injury to any person (including death resulting therefrom) or property (other
than Tenant's property as provided in Section 8.02) occurring in, on or about
the common areas, regardless of cause, except for that caused by the sole
negligence of Tenant or its employees, agents, customers or invitees; and
Landlord hereby releases Tenant from any and all liability for the same.
Landlord's obligation to indemnify Tenant hereunder shall include the duty to
defend against any claims asserted by reason of such loss, damage or injury and
to pay any judgments, settlements, costs, fees and expenses, including
reasonable attorneys' fees, incurred in connection therewith. This provision
shall survive the expiration or earlier termination of this Lease.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or common areas shall be
acquired by the exercise of eminent domain, Landlord may terminate this Lease by
giving written notice to Tenant within fifteen (15) days after possession
thereof is so taken. If all or any part of the Leased Premises shall be acquired
by the exercise of eminent domain so that the Leased Premises shall become
unusable by Tenant for the Permitted Use, Tenant may terminate this Lease by
giving written notice to Landlord within thirty (30) days after possession
thereof is so taken. All damages awarded shall belong to Landlord; provided,
however, that Tenant may claim dislocation damages or damages relating to
Tenant's trade fixtures if such amount is not subtracted from Landlord's award.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Tenant shall not assign this Lease or sublet the Leased Premises in whole
or in part without Landlord's prior written consent, which consent shall not be
unreasonably withheld, delayed or denied. In the event of any assignment or
subletting, Tenant shall remain primarily liable hereunder. The acceptance of
rent from any other person shall not be deemed to be a waiver of any of the
provisions of this Lease or to be a consent to the assignment of this Lease or
the subletting of the Leased Premises. Without in any way limiting Landlord's
right to refuse to consent to any assignment or subletting of this Lease,
Landlord reserves the right to refuse to give such consent if in Landlord's
reasonable opinion (i) the Leased Premises are or may be in any way adversely
affected; (ii) the business reputation of the proposed assignee or subtenant is
unacceptable; or (iii) the financial worth of the proposed assignee or subtenant
is insufficient to meet the obligations hereunder. Landlord further expressly
reserves the right to refuse to give its consent to any subletting if the
proposed rent is to be less than the then current rent for
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similar premises in the Park or if the proposed assignee or subtenant is an
existing tenant in the Building or Park. If Tenant shall make any assignment or
sublease, with Landlord's consent, for a rental in excess of the rent payable
under this: Lease, Tenant shall pay to Landlord fifty percent (50%) of any such
excess rental upon receipt. Tenant agrees to reimburse Landlord for reasonable
accounting and attorneys' fees incurred in conjunction with the processing and
documentation of any such requested assignment, subletting or any other
hypothecation of this Lease or Tenant's interest in and to the Leased Premises.
Notwithstanding anything, contained in this Lease to the contrary, none of the
following, nor any assignments or transfers of this Lease resulting from the
following shall require Landlord's prior written consent or the payment by
Tenant of any fees or charges of any kind:
(a) an initial public offering or other transfer of stock or other
ownership interests in Tenant;
(b) the merger, consolidation or amalgamation of Tenant with a third party
or the sale of all or substantially all of the stock or assets of Tenant so long
as the surviving entity has a net worth greater than or equal to that of Tenant
as of the date of this (Lease; or
(c) a transfer to a parent, subsidiary or "affiliate" of Tenant. An
"affiliate" shall mean any trust, corporation, partnership or limited liability
company: (i) which owns or "controls" the majority of the ownership interest of
Tenant, either directly or indirectly through other entities; (ii) the majority
of whose ownership interests is owned or "controlled" by Tenant; or (iii) which
is under common ownership with Tenant, either directly or indirectly and which
has a net worth greater than or equal to that of Tenant as of the date of this
Lease. As used herein, the word "control" shall mean the right or power to
director cause the direction of the management and policies of the entity in
question.
Tenant shall provide Landlord with prior written notice of any of the
events, transfers or assignments described in (a), (b) or (c) above. Such
transfer or assignment under (a), (b) or (c) above shall be considered a
transfer or assignment to a "Permitted Transferee."
ARTICLE 12 - TRANSFERS BY LANDLORD
In the event of a sale or transfer of such interest (except a mortgage or
other transfer as security for a debt), the "Landlord" named herein, or in the
case of a subsequent transfer, the transferor shall, after the date of such
transfer, be automatically released from all personal liability for the
performance or observance of any term, condition, covenant or obligation
required to be performed or observed by Landlord hereunder, and the transferee
shall be deemed to have assumed all of such terms, conditions, covenants and
obligations. Within fifteen (15) days following receipt of a written request
from Landlord, Tenant shall execute and deliver to Landlord, without cost, an
estoppel certificate in such form as Landlord may reasonably request certifying
(i) that this Lease is in full force and effect and unmodified or stating the
nature of any
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modification, (ii) the date to which rent has been paid, (iii) that there are
not, to Tenant's knowledge, any uncured defaults or specifying such defaults if
any are claimed, and (iv) any other matters or state of facts reasonably
required respecting the Lease. Such estoppel may be relied upon by Landlord and
by any purchaser or mortgagee of the Building.
This Lease is and shall be expressly subject and subordinate at all times
to the lien of any present or future mortgage or deed of trust encumbering fee
title to the Leased Premises. If any such mortgage or deed of trust be
foreclosed, upon request of the mortgagee or beneficiary ("Landlord's
Mortgagee"), as the case may be, Tenant will attorn to the purchaser at the
foreclosure sale. The foregoing provisions are declared to be self-operative and
no further instruments shall be required to effect such subordination and/or
attornment; provided, however, that subordination of this Lease to any present
or future mortgage or trust deed shall be conditioned upon the mortgagee,
beneficiary, or purchaser at foreclosure, as the case may be agreeing that
Tenant's occupancy of the Leased Premises and other rights under this Lease
shall not be disturbed by reason of the foreclosure of such mortgage or trust
deed, as the case may be, so long as Tenant is not in default under this Lease;
and further provided that Tenant agrees upon request by any such mortgagee,
beneficiary, or purchaser at foreclosure, as the case may be, to execute a
mutually acceptable non-disturbance, subordination and/or attornment instruments
(an "SNDA") as may be reasonably required by such person to confirm such
non-disturbance subordination and/or attornment.
Any Landlord's Mortgagee may elect, at any time, unilaterally, to make
this Lease superior to its mortgage or other interest in the Leased Premises by
so notifying Tenant in writing.
Tenant shall not seek to enforce any remedy it may have for any default on
the part of Landlord without first giving written notice by certified mail,
return receipt requested, specifying the default in reasonable detail, to any
Landlord's Mortgagee whose address has been given to Tenant, and affording such
Landlord's Mortgagee the time set forth in the SNDA to perform Landlord's
obligations hereunder.
If Landlord's Mortgagee shall succeed to the interest of Landlord under
this Lease, Landlord's Mortgagee shall not be: (1) liable for any act or
omission of any prior lessor (including Landlord) except for any defaults of
Landlord which Landlord's Mortgagee succeeds to the interest of Landlord; (2)
bound by any rent or additional rent or advance rent which Tenant might have
paid for more than the current month to any prior lessor (including Landlord),
and all such rent shall remain due and owing, notwithstanding such advance
payment; (3) bound by any security or advance rental deposit made by Tenant
which is not delivered or paid over to Landlords Mortgagee and with respect to
which Tenant shall look solely to Landlord for refund or reimbursement
(provided, however, that Landlord shall be responsible for delivering any
Security Deposit hereunder to Landlord's Mortgagee at the time Landlord's
Mortgagee succeeds to Landlord's interest hereunder); (4) bound by any
termination, amendment or modification of this Lease made without Landlord's
Mortgagee's consent and written approval, except for those terminations,
amendments and modifications permitted to be
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made by Landlord without Landlord's Mortgagee's consent pursuant to the terms of
the loan documents between Landlord and Landlord's Mortgagee; (5) subject to the
defenses which Tenant might have against any prior lessor (including Landlord);
and (6) subject to the offsets which Tenant might have against any prior lessor
(including Landlord) except for those offset rights which (A) are expressly
provided in this Lease, (B) relate to periods of time following the acquisition
of the Building by Landlord's Mortgagee, and (C) Tenant has provided written
notice to Landlord's Mortgagee and provided Landlord's Mortagee a reasonable
opportunity (the duration of which shall not exceed thirty (30) days after
Landlord's Mortgagee takes possession of the Building) to cure the event giving
rise to such offset event. Landlord's Mortgagee shall have no liability or
responsibility under or pursuant to the terms of this Lease or otherwise after
it ceases to own an interest in the Building. Nothing in this Lease shall be
construed to require Landlord's Mortgagee to see to the application of the
proceeds of any loan, and Tenant's agreements set forth herein shall not be
impaired on account of any modification of the documents evidencing and securing
any loan.
ARTICLE 13 - DEFAULT AND REMEDY
Section 13.01. Default. The occurrence of any of the following shall be a
"Default":
(a) Tenant fails to pay any Monthly Rental Installment or Additional Rent
within five (5) days after the same, is due, or Tenant fails to pay any other
amounts due Landlord from, Tenant within ten (10) days after the same is due.
Landlord shall provide Tenant with a written notice of such Default and
Tenant shall have an additional five (5) days to cure such Default before
Landlord exercises its default remedies; provided, however, that Landlord shall
not be required to give such notice more than two (1) time with respect to any
particular Default, nor more than two (2) times in any consecutive twelve (12)
month period with respect to any payment Defaults in the aggregate.
(b) Tenant fails to perform or observe any other term, condition, covenant
or obligation required under this Lease for a period of thirty (30) days after
notice thereof from Landlord; provided, however, that if the nature of Tenant's
default is such that more than thirty (30) days are reasonably required to cure,
then such default shall be deemed to have been cured if Tenant commences such
performance within said thirty (30) day period and thereafter diligently
completes the required action within a reasonable time.
(c) Tenant shall assign or sublet all or a portion of the Leased Premises
in contravention of the provisions of Article 11 of this Lease.
(d) All or substantially all of Tenant's assets in the Leased Premises or
Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Tenant (and Tenant fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Tenant is insolvent
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and unable to pay its debts as they become due; Tenant makes a general
assignment for the benefit of creditors; Tenant takes the benefit of any
insolvency action or law; the appointment of a receiver or trustee in bankruptcy
for Tenant or its assets if such receivership has not been vacated or set aside
within thirty (30) days thereafter; or, dissolution or other termination of
Tenant's corporate charter if Tenant is a corporation.
(e) In addition to the defaults and remedies described herein, the parties
agree that if Tenant is in violation of the performance of any (but not
necessarily the same) term or condition of this Lease three (3) or more times
during any twelve (12) month period, regardless of whether such violations are
ultimately cured, then such conduct shall, at Landlord's option, represent a
separate Default.
Section 13.02. Remedies. Upon the occurrence of any Default, Landlord
shall have the following rights and remedies, in addition to those allowed by
law or in equity, any one or more of which may be exercised without further
notice to Tenant:
(a) Landlord may apply the Security Deposit or re-enter the Leased
Premises and cure any Default of Tenant, and Tenant shall reimburse Landlord as
Additional Rent for any costs and expenses which Landlord thereby incurs; and
Landlord shall not be liable to Tenant for any loss or damage which Tenant may
sustain by reason of Landlord's action.
(b) Landlord may terminate this Lease or, without terminating this Lease,
terminate Tenant's right to possession of the Leased Premises as of the date of
such Default, and thereafter (i) neither Tenant nor any person claiming under or
through Tenant shall be entitled to possession of the Leased Premises, and
Tenant shall immediately surrender the Leased Premises to Landlord; and (ii)
Landlord may re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Landlord may have. Upon the
termination of this Lease, Landlord may declare the present value (discounted at
the Prime Rate of interest) of all rent which would have been due under this
Lease for the balance of the Lease Term to be immediately due and payable,
whereupon Tenant shall be obligated to pay the same to Landlord, together with
all loss or damage which Landlord may sustain by reason of Tenant's Default
("Default Damages"), which shall include without limitation reasonable expenses
of preparing the Leased Premises for re-letting, demolition, repairs, tenant
finish improvements and brokers' and attorneys' fees, it being expressly
understood and agreed that the liabilities and remedies specified in this
subsection (b) shall survive the termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises, and re-let all or any part thereof for a term different from that
which would otherwise have constituted the balance of the Lease Term and for
rent and on terms and conditions different from those contained herein,
whereupon Tenant shall be immediately obligated to pay to Landlord as liquidated
damages the difference between the rent provided for herein and that provided
for in any lease covering a subsequent re-letting of
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the Leased Premises, for the period which would otherwise have constituted the
balance of the Lease Term, together with all of Landlord's Default Damages.
(d) Landlord may sue for injunctive relief or to recover damages for any
loss resulting from the breach.
Section 13.03. Landlord's Default and Tenant's Remedies. Landlord shall be
in default if it fails to perform any term, condition; covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to-be performed by Landlord is such that it cannot
reasonably be performed within thirty (30) days, such default shall be deemed to
have been cured if Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to complete the same. Upon the
occurrence of any such default, Tenant may sue for injunctive relief or to
recover damages for any loss directly resulting from the breach, but Tenant
shall not be entitled to terminate this Lease or withhold, offset or abate any
sums due hereunder.
Section 13.04. Limitation of Landlord's Liability. If Landlord shall fail
to perform any term, condition, covenant or obligation required to be performed
by it under this Lease and if Tenant shall, as a consequence thereof, recover a
money judgment against Landlord, Tenant agrees that it shall look solely to
Landlord's right, title and interest in and to the Building for the collection
of such judgment; and Tenant further agrees that no other assets of Landlord
shall be subject to levy, execution or other process for the satisfaction of
Tenant's judgment.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay in
exercising any of its rights or remedies or other provisions of this Lease shall
constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the term of this Lease
shall be deemed an acceptance of a surrender of the Leased Premises, and no
agreement to accept such a surrender shall be valid unless in writing and signed
by Landlord.
Section 13.06. Attorneys' Fees. If either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the nondefaulting party obtains a
judgment against the defaulting party, then the defaulting party agrees to
reimburse the non-defaulting party: for the reasonable attorneys' fees and costs
incurred thereby.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
[Intentionally Omitted]
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ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES
Section 15.01. Definitions.
(a) "Environmental Laws" - All present or future federal, state and
municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, the rules and
regulations of the Federal Environmental Protection Agency or any other federal,
state or municipal agency or governmental board or entity having jurisdiction
over the Leased Premises.
(b) "Hazardous Substances" - Those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
"solid waste" or "infectious waste" under Environmental Laws.
Section 15.02. Compliance. Tenant, at its sole cost and expense, shall
promptly comply with the Environmental Laws including any notice from any source
issued pursuant to the Environmental Laws or issued by any insurance company
which shall impose any duty upon Tenant with respect to the use, occupancy,
maintenance or alteration of the Leased Premises whether such notice shall be
served upon Landlord or Tenant, provided that Landlord deliver a copy of such
notice to Tenant.
Section 15.03. Restrictions on Tenant. Tenant shall operate its business
and maintain the Leased Premises in compliance with all Environmental Laws.
Tenant shall not cause or permit the use, generation, release, manufacture,
refining, production; processing, storage or disposal of any Hazardous
Substances on, under or about the Leased Premises, or the transportation to or
from the Leased Premises of any Hazardous Substances, except as necessary and
appropriate for its Permitted Use in which case the use, storage or disposal of
such Hazardous Substances shall be performed in compliance with the
Environmental Laws and the highest standards prevailing in the industry.
Section 15.04. Notices, Affidavits. Etc. Tenant shall immediately notify
Landlord of (i) any violation by Tenant, its employees, agents, representatives,
customers, invitees or contractors of the Environmental Laws on, under or about
the Leased Premises, or (ii) the presence or suspected presence of any Hazardous
Substances on, under or about the Leased Premises and shall immediately deliver
to Landlord any notice received by Tenant relating to (i) and (ii) above from
any source. Tenant shall execute affidavits, representations and the like within
five (5) days of Landlord's request therefor concerning Tenant's best knowledge
and belief regarding the presence of any Hazardous Substances on, under or about
the Leased Premises.
Section 15.05. Landlord's Rights. Landlord and its agents shall have the
right, but not the duty, upon advance notice (except in the case of emergency
when no notice shall be required) to inspect the Leased Premises and conduct
tests thereon to determine whether or the extent to which there has been a
violation of Environmental Laws by
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Tenant or whether there are Hazardous Substances on, under or about the Leased
Premises. In exercising its rights herein, Landlord shall use reasonable efforts
to minimize interference with Tenant's business but such entry shall not
constitute an eviction of Tenant, in whole or in part, and Landlord shall not be
liable for any interference, loss, or damage to Tenant's property or business
caused thereby.
Section 15.06. Tenant's Indemnification. Tenant shall indemnify Landlord
and Landlord's managing agent from any and all claims, losses, liabilities,
costs, reasonable expenses and damages, including attorneys' fees, costs of
testing and remediation costs, incurred by Landlord in connection with any
breach by Tenant of its obligations under this Article 15. The covenants and
obligations under this Article 15 shall survive the expiration or earlier
termination of this Lease.
Section 15.07. Landlord's Representation. Notwithstanding anything
contained in this Article 15 to the contrary, Tenant shall not have any
liability to Landlord under this Article 15 resulting from any conditions
existing, or events occurring, or any Hazardous Substances existing or
generated, at, in, on, under or in connection with the Leased Premises prior to
the Commencement Date of this Lease except to the extent Tenant exacerbates the
same.
ARTICLE 16 - MISCELLANEOUS
Section 16.01. Benefit of Landlord and Tenant. This Lease shall inure to
the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
Section 16.02. Governing Law. This Lease shall be governed in accordance
with the laws of the State where the Building is located.
Section 16.03. Guaranty. [INTENTIONALLY OMITTED]
Section 16.04. Force Maieure. Landlord and Tenant (except with respect to
any rent payment obligation) shall be excused for the period of any delay in the
performance of any obligation hereunder when such delay is occasioned by causes
beyond its control, including but not limited to work stoppages, boycotts,
slowdowns or strikes; shortages of materials, equipment, labor or energy;
unusual weather conditions; or acts or omissions of governmental or political
bodies.
Section 16.05. Examination of Lease. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
Section 16.06. Indemnification for Leasing Commissions. The parties hereby
represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are the Brokers. Each party shall
indemnify the other from any
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and all liability for the breach of this representation and warranty on its part
and shall pay any compensation to any other broker or person who may be entitled
thereto.
Section 16.07. Notices. Any notice required or permitted to be given under
this Lease or by law shall be deemed to have been given if it is written and
delivered in person or by overnight courier or mailed by certified mail, return
receipt requested, postage prepaid, to the party who is to receive such notice
at the address(es) specified in Article 1. When so mailed, the notice shall be
deemed to have been given as of the date it was mailed. Either party may change
its address by giving written notice thereof to the other party.
Section 16.08. Partial Invalidity; Complete Agreement. If any provision of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed upon or
understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change or addition shall be made to this Lease except by a written
agreement executed by Landlord and Tenant.
Section 16.09. Financial Statements. During the Lease Term and any
extensions thereof, Tenant shall provide to Landlord on an annual basis, within
ninety (90) days following the end of Tenant's fiscal year, a copy of Tenant's
most recent financial statements (certified and audited if the Minimum Annual
Rent hereunder exceeds $100,000.00) prepared as of the end of Tenant's fiscal
year. Such financial statements shall be signed by Tenant who shall attest to
the truth and accuracy of the information set forth in such statements, or if
the Minimum Annual Rent hereunder exceeds $100,000.00, said statements shall be
certified and audited. All financial statements provided by Tenant to Landlord
hereunder shall be prepared in conformity with generally accepted accounting
principles, consistently applied.
Section 16.10. Representations and Warranties. The undersigned represent
and warrant that (i) such party is duly organized, validly existing and in good
standing (if applicable) in accordance with the laws of the state under which it
was organized; and (ii) the individual executing and delivering this Lease has
been properly authorized to do so, and such execution and delivery shall bind
such party.
Section 16.11. Agency Disclosure. Tenant acknowledges having previously
received the Agency Disclosure Statement attached. The broker as provided in
Item K of the Basic Lease Provisions, its agents and employees, have represented
only Landlord, and have not in any way represented Tenant, in the marketing,
negotiation, and completion of this lease transaction.
Section 16.12. Signs. Tenant may, at its own expense, erect a sign
concerning the business of Tenant which shall be in keeping with the decor and
other signs on the Building. All signage (including the signage described in the
preceding sentence) in or
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about the Leased Premises shall be first approved by Landlord and shall be in
compliance with the applicable codes and any recorded restrictions applicable to
the Building. Tenant agrees to maintain any sign in good state of repair, and
upon expiration of the Lease Term, Tenant agrees to promptly remove such signs
and repair any resulting damage to the Leased Premises.
Section 16.13. ERISA Matters.
(a) Tenant acknowledges that it has been advised that an affiliate of
Landlord is a collective investment fund (the "Fund") which holds the assets of
one or more employee benefit plans or retirement arrangements which are subject
to Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") and/or Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code") (each a "Plan"), and with respect to which Morgan Guaranty Trust
Company of New York ("MGT") is the Trustee and that, as a result, Landlord may
be prohibited by law from engaging in certain transactions.
(b) Landlord hereby represents and warrants to Tenant that, as of the date
hereof, the only Plans whose assets are invested in the Fund which, together
with the interests of any other Plans maintained by the same employer or
employee organization, represent a collective interest in the Fund in excess of
ten percent (10%) of the total interests in the Fund (each, a "10% Plan") are
referenced on Exhibit E (collectively, the "Existing 10% Plan").
(c) Tenant represents and warrants that as of the date hereof, and at all
times while it is a Tenant under this Lease, one of the following statements is,
and will continue to be, true: (1) Tenant is not a "party in interest" (as
defined in Section 3(14) of ERISA) or a "disqualified person" (as defined in
Section 4975 of the Code) (each, a "Party in Interest") with respect to the
Existing 10% Plan or, (2) if Tenant is a Party in Interest, that:
(A) neither Tenant nor its "affiliate" (as defined in Section V(c)
of PTCE 8414, "Affiliate") has, or during the immediately preceding one
(1) year has, exercised the authority to either: (i) appoint or terminate
MGT as the qualified professional asset manager (as defined in Section
V(a) of PTCE 84-14, "QPAM") of any of the assets of the Existing 10% Plan
with respect to which Tenant or its Affiliate is a Party in Interest; or
(ii) negotiate the terms of the, management agreement with MGT, including
renewals or modifications thereof, on behalf of the Existing 10% Plan; and
(B) neither Tenant nor any entity controlling, or controlled by,
Tenant owns a five percent (5%) or more interest (within the meaning of
PTCE 84-14,"5% Interest") in J.P. Morgan Chase & Co.
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(d) In the event that Landlord or the Fund notifies Tenant in writing that
a Plan other than the Existing 10% Plan may become a 10% Plan, Tenant will,
within ten (10) days of such notification, inform the Fund in writing as to
whether it can make the same representations which it made in subsection (c) of
this Section with respect to such prospective 10% Plan. Thereafter, if based on
such representations made, by Tenant such Plan becomes a 10% Plan, Tenant
represents and warrants that, at all times during the period Tenant is a tenant
under the Lease, one of the statements set forth in subsection (c) will be true
with respect to such 10% Plan.
Section 16:14. Option to Extend.
A. Grant and Exercise of Option. Provided that (i) Tenant is not in
Default hereunder, and (ii) Tenant originally named herein or a Permitted
Transferee remains in possession of and has been continuously operating in the
entire Leased Premises throughout the Lease Term ("Original Term"), Tenant shall
have the option to extend the Original Term for two (2) additional periods of
five (5) years each (the "Extension Term(s)"). Each Extension Term shall be upon
the same terms and conditions contained in the Lease for the Original Term
except (i) this provision giving two (2) extension options shall be amended to
reflect the remaining options to extend, if any, and (ii) the Minimum Annual
Rent shall be adjusted as set forth herein ("Market Rent Adjustment"). Tenant
shall exercise each option by delivering to Landlord, no later than twelve (12)
months prior to the expiration of the preceding term, written notice of Tenant's
desire to extend the term of the Lease. Tenant's failure to properly exercise
such option shall waive it and any succeeding option. If Tenant properly
exercises its option to extends Landlord shall notify Tenant of the Rent
Adjustment no later than ninety (90) days prior to the commencement of the
Extension Term. Tenant shall be deemed to have accepted the Rent Adjustment if
it fails to deliver to Landlord a written objection thereto within ten (10) days
after receipt thereof. If Tenant properly exercises its option to extend,
Landlord and Tenant shall execute an amendment to the Lease (or, at Landlord's
option, a new lease on the form then in use for the Building so long as the
business and legal terms and provisions of this Lease are fully incorporated
into such new lease) reflecting the terms and conditions of the Extension Term.
B. Market Rent Adjustment. The Market Rent Adjustment shall be an amount
equal to the Minimum Annual Rent then being quoted by Landlord to prospective
new tenants of the Building for space of comparable size and quality and with
similar or equivalent improvements as are found in the Building, and if none,
then in similar buildings in the vicinity, excluding free rent and other
concessions; provided, however, that if Tenant delivers to Landlord a written
objection to Landlord's calculation of the Market Rent Adjustment and the
parties cannot agree on a Market Rent Adjustment within ten (10) days after
Tenant's written objection then within ten (10) days thereafter the parties
shall each appoint a member of the Cincinnati Board of Realtors or Northern
Kentucky Board of Realtors who is either a MAI appraiser or licensed real estate
broker and who is knowledgeable in industrial rentals in the Northern Kentucky
market. The two appraisers and/or brokers shall together appoint a third MAI
appraiser or a licensed real estate broker with the same qualifications. The
three appraisers and/or brokers shall
22
<PAGE>
then each determine within thirty (30) days the then fair market value rental
rate (excluding leasehold improvements allowances) for such space and for
parking, taking into consideration the industrial rental market in Northern
Kentucky for comparable space and parking and the rental rates then being quoted
to prospective tenants for comparable space and parking in the Building and
other industrial buildings in the Northern Kentucky area. The average of the two
closest determinations shall be used as the Minimum Annual Rent for the Leased
Premises during the renewal term. Landlord and Tenant shall each bear the cost
of its appraiser or broker and shall share the cost of the third.
Section 16.15. Right of First Offer. Provided that (i) Tenant is not in
Default hereunder, (ii) the creditworthiness of Tenant is, then acceptable to
Landlord, and (iii) Tenant originally named herein or a Permitted Transferee
remains in possession of and has been continuously operating in the Leased
Premises throughout the Lease Term, Landlord shall, before entering into a lease
with a third party for the space crosshatched on the attached Exhibit F (the
"Offer Space"), notify Tenant in writing of the availability of such space for
leasing (the "Landlord's Notice"). Tenant shall have seven (7) business days
from its receipt of Landlord's Notice to deliver to Landlord a written
acceptance agreeing to lease the Offer Space on the terms and conditions
contained in Landlord's Notice, in which event this Lease shall be amended to
incorporate such Offer Space. If Landlord and Tenant cannot agree on the form of
the amendment within seven (7) business days after delivery of such amendment
from Landlord to Tenant, then this right of first offer shall terminate and
Landlord may lease the Offer Space to a third party. In the event Tenant fails
to notify Landlord of its acceptance within said seven (7) day period, such
failure shall be conclusively deemed a rejection of the Offer Space, whereupon
Tenant shall have no further rights with respect to the Offer Space and Landlord
shall be free to lease the Offer Space to a third party. In the event Tenant
accepts the Offer Space on the terms and conditions specified in the Landlord's
Notice, the Lease Term for the original Leased Premises shall be extended, to be
coterminous with the term for the Offer Space. The Minimum Annual Rent for the
original Leased Premises during any such extended term of the original term of
this Lease shall be an amount equal to the Minimum Annual Rent calculated in
accordance with Section 16.14B.
Section 16.16. Tenant Representations Regarding Permitted Use. Tenant
represents, agrees and covenants that it and/or the physicians who practice
within the structure of Tenant are and will at all times during the Lease Term,
be licensed to conduct the business contemplated and carried on in the Leased
Premises and Tenant agrees to maintain or cause to be maintained at all times at
its sole cost and expense all requisite permits and/or licenses in connection
therewith. Upon request from Landlord, Tenant shall promptly provide to Landlord
copies of any such licenses. Tenant covenants and agrees not to suffer, allow or
permit any offensive or obnoxious vibration, noise, odor, or other undesirable
effect to emanate from the Leased Premises, or any machine or other installation
therein, or otherwise suffer, allow or permit the same to constitute a
disturbance or nuisance to occupants or to the other tenants of the Building.
Tenant further covenants and agrees that the storage, handling, removal and
disposal of all
23
<PAGE>
medical waste matter or infectious waste, at or from the Leased Premises, shall
be done in compliance with all applicable laws and/or legal requirements now or
hereafter existing and shall be performed by Tenant at Tenant's sole cost and
expense.
Section 16.17. Emergency Power. Landlord agrees to allow Tenant to provide
emergency power to the Leased Premises in the form of a generator and diesel
fuel tank in a location outside the Leased Premises in the area depicted on
Exhibit G attached hereto and incorporated herein and to test the generator on a
regular basis. Tenant shall provide Landlord with plans and specifications
relating to the installation of such generator and diesel fuel tank which shall
include the erection of a fence around the generator and diesel fuel tank of
such materials which shall prevent the generator from being viewed from outside
such fence. Landlord shall approve the plans and specifications for such
generator and diesel fuel tank prior to Tenant's installation of such.
Notwithstanding anything in this section to the contrary, Tenant shall be
responsible for all costs associated with the installation, maintenance and use
of such generator and diesel fuel tank and shall provide Landlord with copies of
all governmental permits required for the installation of such generator and
diesel fuel tank prior to such installation. Tenant agrees to indemnify, defend
and hold Landlord harmless from and against any and all liability, damages
(including, but not limited to personal injury, death and property damages),
reasonable costs, expenses and attorney's fees incurred by Landlord arising from
the generator and diesel fuel tank, or related cause whatsoever, including those
arising from the installation, use, maintenance and removal thereof. Tenant
shall at all times maintain and repair the generator and diesel fuel tank.
Tenant agrees to remove the generator, diesel fuel tank and any fencing upon the
expiration or earlier termination of this Lease and restore the area to the
condition it was in prior to such installation reasonable wear and tear
excepted.
Section 16.18. Tanks. Landlord agrees to allow Tenant to store liquid
nitrogen tanks in a location outside the Leased Premises in the area depicted on
Exhibit H attached hereto and incorporated herein and to fill the tanks on a
regular basis. Tenant shall provide Landlord with plans and specifications
relating to the installation of such tanks which shall include the erection of a
fence around the tanks of such materials which shall prevent the tanks from
being viewed from outside such fence. Landlord shall approve the plans and
specifications for such tanks prior to Tenant's installation of such.
Notwithstanding anything in this section to the contrary, Tenant shall be
responsible for all costs associated with the installation, maintenance and use
of such tanks and shall provide Landlord with copies of all governmental permits
required for the installation of such tanks and use of such tanks prior to such
installation and shall provide Landlord with copies of all governmental permits
throughout the term of the Lease that Tenant must obtain for the use of such
tanks. Tenant agrees to indemnify, defend and hold Landlord harmless from and
against any and all liability, damages (including, but not limited to personal
injury, death and property damages), reasonable costs, expenses and attorney's
fees incurred by Landlord arising from the tanks, or related cause whatsoever,
including those arising from the installation, use, maintenance and removal
thereof. Tenant shall at all times maintain and repair the tanks. Tenant agrees
to remove the tanks, pad, piping and any fencing and replace asphalt at concrete
pad with original
24
<PAGE>
asphalt profile upon the expiration or earlier termination of this Lease and
restore the area to the condition it was in prior to such installation
reasonable wear and tear excepted. Section 16.19. Quiet Enjoyment. Landlord
agrees that if Tenant shall perform all of the covenants and agreements herein
provided to be performed on Tenant's part, Tenant shall at all times during the
Lease Term, have the peaceable and quiet enjoyment of possession of the Leased
Premises without any manner of hindrance from Landlord or any persons lawfully
claiming under Landlord.
Section 16.20. Temporary Space. Commencing effective April 1, 2002,
Landlord hereby agrees to provide Tenant with other space in the Building
consisting of approximately 4,125 square feet of temporary space located at 2369
Progress Drive, Hebron, Kentucky as shown on Exhibit A-1 attached hereto
("Temporary Space") for its use until Landlord delivers the Leased Premises to
Tenant. Tenant shall pay to Landlord rent in the amount of Two Thousand Two
Hundred Sixty-eight Dollars and Seventy-five Cents ($2,268.75) per month for the
Temporary Space to be paid beginning April 1, 2002 and continuing on the first
day of each month thereafter, prorated for any partial month. Tenant
acknowledges that the Temporary Space is part of a larger space. If Tenant
occupies any space in addition to the Temporary Space, Tenant shall pay Landlord
Six Dollars and Sixty Cents ($6.60) per square foot per year for such space and
the terms for such additional space shall be the same as the Temporary Space.
Tenant shall obtain in its own name and pay directly to the appropriate supplier
the cost of all utilities and services serving the Temporary Space. The
Temporary Space shall be delivered to Tenant "as is". So long as Tenant occupies
the Temporary Space, all references in the Lease to the Leased Premises shall
mean and refer to the Temporary Space, except with respect to the rent and term,
which shall be controlled by this Section 16.20. Tenant shall vacate the
Temporary Space in broom clean condition, reasonable wear and tear and casualty
excepted, upon the date Landlord delivers the Leased Premises to Tenant.
25
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and year first above written.
LANDLORD:
DUGAN FINANCING LLC,
a Delaware limited liability company
By: Dugan Realty, L.L.C.,
its sole member
By: Duke Realty Limited Partnership,
Its manager
By: Duke Realty Corporation,
its general partner
By: /s/ Robert Fessler
------------------
Robert D. Fessler
Senior Vice President
TENANT:
VIACELL, INC.,
a Delaware corporation
By: /s/ Mary Thistle
----------------
Printed: /s/ Mary Thistle
-------------------------
Title: Vice President of Finance
-------------------------
26
<PAGE>
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally
appeared Robert D. Fessler, the Senior Vice President of Duke Realty
Corporation, the general partner of Duke Realty Limited Partnership, the manager
of Dugan Realty, L.L.C., the sole member of Dugan Financing LLC, a Delaware
limited liability company, who under penalty of perjury in violation of Section
2921.11 of the Ohio Revised Code represented to me to be said person and who
signed the foregoing "Lease Agreement" on behalf of said limited liability
company.
WITNESS my hand and Notarial Seal this 12th day of April, 2002.
/s/ Rose Anduciccio
-------------------
Notary Public
---------------------------
(Printed Signature)
My commission Expires:_________________
My Count of Residence: Clermont
STATE OF MASSACHUSETTS )
) SS.
COUNTY OF WORCESTER )
Before me, a Notary Public in and for said County and State, personally
appeared Mary Thistle, the Vice President Finance of ViaCell, Inc., a Delaware
corporation, represented to me to be said period and who signed the foregoing
"Lease Agreement" on behalf of said corporation.
WITNESS my hand and Notarial Seal this 8th day of April, 2002.
/s/ Laurie J. Nolle
-------------------
Notary Public
Laurie J. Nolle
---------------
(Printed Signature)
My commission Expires: Laurie J. Nolle
My Count of Residence: Worcester
27
<PAGE>
EXHIBIT A
See diagram on Master
28
<PAGE>
EXHIBIT A-1
See diagram on Master
29
<PAGE>
EXHIBIT B
IMPROVEMENTS TO THE LEASED PREMISES
THE WORKING DRAWINGS. Tenant desires Landlord to perform certain leasehold
improvement work (the "Work") in the Leased Premises pursuant to the working
drawings and specifications ("Working Drawings") for the Work prepared by Arch
Design, Inc., which Tenant has provided to Landlord on March 25, 2002. The
Working Drawings shall include architectural, MEP drawings and specifications
complete and ready to be submitted for permits and the bid process. The Working
Drawings shall be subject to Landlord's reasonable approval, which Landlord
shall review and indicate requested changes, if any; by written notice to
Tenant, by April 3, 2002 or within seven (7) business days of its receipt of the
Working Drawings from Tenant. Landlord will also submit pricing based on the
Working Drawings to Tenant by April 3, 2002 or within seven (7) business days of
its receipt of the Working Drawings from Tenant. If Landlord fails to indicate
such requested changes to the Working Drawings by such date, the Working
Drawings shall be deemed approved. If Landlord requests any changes to the
Working Drawings, Tenant shall make those changes and approve final pricing by
April 12, 2002 or within seven (7) business days of receipt of Landlord's
requested changes and final pricing. Once so approved, the Working Drawings
shall be attached hereto as Exhibit B-1. Such approval by Landlord shall not
constitute any warranty by Landlord to Tenant of the adequacy of the design for
Tenant's intended use of the Leased Premises nor (except as expressly provided
below) shall Landlord's approval of the Working Drawings create any liability or
responsibility on the part of Landlord for compliance of the Working Drawings
and/or the Work with applicable statutes, ordinances, regulations, laws, codes
and industry standards, including without limitation, any and all statutes,
ordinances, regulations, laws, codes and industry standards relating to handicap
discrimination (including, without limitation, the Americans with Disabilities
Act).
THE GENERAL CONTRACTOR. Landlord shall, through its affiliate, Duke
Construction Limited Partnership, as general contractor (the "General
Contractor"), cause the Work to be promptly completed in a good and workmanlike
manner and in accordance with all applicable laws, ordinances, rules and
regulations including the Americans with Disabilities Act as interpreted by the
General Contractor as of the date of this Lease. The General Contractor shall
receive reasonable and competitive compensation for its services, including
overhead, general conditions and a fee of ten percent (10%) on the costs of the
Work and any change orders. The General Contractor shall secure all fees,
permits, licenses and inspections necessary for the performance of the Work and
shall comply with all laws, ordinances, rules, regulations, directives and
orders in completing the construction of the Work. The General Contractor shall
solicit competitive bids from at least two (2) qualified reputable
subcontractors for any subcontracted portion of the Work except for the
electrical and heating, ventilating and air conditioning portions of the Work.
BUILDING STANDARDS. Unless otherwise specified in the Working Drawings,
the Work shall be completed using building standard materials and quantities
("Building Standards"). Tenant shall not be entitled to any credit or payment
from Landlord or the General Contractor for any Building Standards or any
non-standard work not utilized by Tenant.
30
<PAGE>
WORK ALLOWANCE. Landlord shall pay all of the costs of the Work (including
permit fees, overhead, general conditions and the General Contractor's fee but
excluding, the Working Drawings) up to the sum of One Hundred Twenty-three
Thousand Seven Hundred Fifty Dollars ($123,750.00) ($10.00 per rentable square
foot of the Leased Premises) (the "Work Allowance"). The entire Work Allowance
must be used to construct the Work during the first six (6) months of the Lease
Term. Any portion of the Work Allowance not used during such six-month period
shall be forfeited. Landlord makes no representation or warranty that the Work
Allowance is sufficient to cover the cost of the Work.
WORK IN EXCESS OF THE WORK ALLOWANCE. The cost of any portion of the Work
which exceeds the Work Allowance ("Above-Allowance Work") shall be borne by
Tenant. Thirty-three and three tenths percent (33.3%) of the cost of the
Above-Allowance Work shall be payable in advance, and Tenant shall pay such
amount to the General Contractor prior to the commencement of the Work. Tenant
acknowledges that Tenant requested Landlord to order long lead items prior to
finalizing the Working Drawings. Therefore, Tenant has submitted all equipment
specifications for long lead items to be ordered and has paid General Contractor
the sum of One Hundred Seventy-five Thousand Dollars ($175,000.00) toward the
cost of such long lead items. When final pricing for the Work is agreed upon by
Landlord and Tenant, if thirty-three and three tenths percent (33.3%) of the
cost of the Above-Allowance Work exceeds the One Hundred Seventy-five Thousand
Dollar ($175,000.00) payment made by Tenant to the General Contractor, then
Tenant shall pay the difference to General Contractor prior to General
Contractor commencing the Work. If thirty-three and three tenths percent (33.3%)
of the Above-Allowance Work is less than the One Hundred Seventy-five Thousand
Dollar ($175,000.00) payment made by Tenant to the General Contractor, then
such,, additional amount shall be applied to the total cost of the Work. Tenant
agrees to pay General Contractor directly or General Contractor can deduct from
Tenant's initial payment for Above-Allowance Work any amounts expended by
General Contractor for items not included in the Working Drawings. Thereafter,
the General Contractor shall submit to Tenant monthly invoices for progress
payments on the Above-Allowance Work. Such invoices shall indicate (i) the
amount of Above-Allowance Work completed during the prior month, and (ii) the
amount due and payable from Tenant for such Above-Allowance Work. Tenant shall
remit payment to the General Contractor for the full amount indicated on such
invoices less ten percent (10%) retainage within ten (10) business days of its
receipt of the same. Upon substantial completion and completion of any punchlist
items, Tenant shall pay Landlord any outstanding balance for the Above-Allowance
Work.
CHANCE ORDERS. Neither the Landlord nor the General Contractor shall be
obligated to make any alterations in the Work, and no such alterations shall be
made or effective, unless such change is requested in a written "Change Order"
signed by Tenant and accepted by both Landlord and the General Contractor.
Tenant shall have the obligation to provide to the General Contractor any
additional information, plans, specifications, drawings, etc., which are
necessary in order to complete any work pursuant to a Change Order. A Change
Order shall not increase the amount of the Work Allowance, and any work done
pursuant to a Change Order not covered under the Work Allowance shall be deemed
Above-Allowance Work. The General Contractor shall, upon written request from
Tenant, provide Tenant with an estimate of the anticipated
31
<PAGE>
adjustment to the cost of the Work (including any additional fees, general
conditions and overhead) caused by any proposed Change Order, which estimate
shall not be binding upon Landlord or the General Contractor until finally
accepted by Landlord, the General Contractor and Tenant in writing which all
parties shall sign within five (5) business days of such estimate.
TENANT DELAYS. "Tenant Delays" shall be any delay in the completion of the
Work attributable to Tenant, including, but not limited to:
(i) Tenant's failure to meet any of the dates specified in this Exhibit
B or the Lease, including failure by Tenant to grant its approval in
the time period specified or to timely make any payments due
hereunder;
(ii) Change Orders;
(iii) Tenant's requirements for special work or materials, finishes or
installations other than the Building Standards; and
(iv) the performance of any other work in the Leased Premises by any
person, firm or corporation employed by or on behalf of Tenant, or
any failure to complete or delay in completion of such work.
The Commencement Date of the Lease and Tenant's obligation to commence paying
rent (including Additional Rent) for the Leased Premises shall not be delayed or
postponed on account of any Tenant Delays.
SUBSTANTIAL COMPLETION. The General Contractor and Landlord shall make
commercially reasonable efforts to cause the Work to be "substantially
completed" on or before the date described in Section l.01H of the Basic Lease
Provisions in the Lease, subject to factors outside the General Contractor's
and/or Landlord's control, including force majeure events (as defined in the
Lease) and Tenant Delays. The Work shall be considered "substantially completed"
for all purposes under this Exhibit B and the Lease on the later of the date (i)
the General Contractor issues a written certificate to Landlord and Tenant
certifying that the Work has been completed (except for minor finish-out and
"punchlist" items) in substantial compliance with the Working Drawings, or (ii)
when Landlord delivers a verbal or written temporary certificate of occupancy
unless the issuance of such certificate of occupancy is delayed because of a
Tenant Delay or as a result of work to be done by Tenant. Regardless of the date
the Work is substantially complete, the Commencement Date will be no later than
June 1, 2002. Landlord shall cause General Contractor to use commercially
reasonable efforts to complete all punchlist items within thirty (30) days after
substantial completion. Landlord shall cause the General Contractor to provide a
one (1) year warranty on the Work without cost to Tenant. Landlord shall cause
General Contractor to maintain insurance, including without limitation, worker's
compensation.
LATE DELIVERY. If Landlord fails to complete the Work in accordance with
the foregoing provisions of this Lease and deliver possession of the Leased
Premises to Tenant on or before June 15, 2002, for any reason except force
majeure events or Tenant Delays, Landlord hereby
32
<PAGE>
agrees that the Monthly Rental Installment for the Leased Premises, calculated
on a per diem basis, shall be abated one (1) day for every day that the Leased
Premises are not substantially completed beginning June 15, 2002. Such abatement
shall be Tenant's sole remedy for Landlord's failure to complete the Work and
deliver the possession of the Leased Premises, and Tenant shall not be entitled
to damages (consequential or otherwise) as a result thereof.
33
<PAGE>
TENANT COST PROPOSAL
EXHIBIT "B"
TENANT NAME: VIACELL
BLD. LOCATION: SKYPORT BUILDING 4 PROJECT # _________________
PROPOSAL DATE: 3/25/2002 G/L ACCOUNT: _________________
REVISED (#) DATE:
PROJECT MANGR: TIM MCELROY MOVE-IN DATE: _________________
ARCH. DWG. BY: ARCHDESIGN, INC.
DRAWING DATE: 3/15/2002
BUILDING TYPE: INDUSTRIAL
OFFICE-RSF: 10,959
WAREHOUSE-RSF: 1,416
TOTAL - RSF: 12,375
--------------------------------------------------------------------------------------------------------
DESCRIPTION QTY UNIT DIV. TOTALS COST/RSF
--------------------------------------------------------------------------------------------------------
TIME PERIOD REQUIREMENTS
--------------------------------------------------------------------------------------------------------
BID PROCESS 1 WKS
--------------------------------------------------------------------------------------------------------
ARCHITECTURAL/MECHANICAL/ELECTRICAL/PLUMBING DESIGN 2 WKS
--------------------------------------------------------------------------------------------------------
BUILDING PERMIT 2 WKS
--------------------------------------------------------------------------------------------------------
CONSTRUCTION 8 WKS
--------------------------------------------------------------------------------------------------------
PUNCH LIST COMPLETION 1 WKS
--------------------------------------------------------------------------------------------------------
TOTAL TIME PERIOD REQUIRED 14 WKS
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
GENERAL CONDITIONS
--------------------------------------------------------------------------------------------------------
PERMITS/FEES $3,093.75 $0.25
--------------------------------------------------------------------------------------------------------
Building Permit 12,375 SF
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
SUPERVISION $16,000.00 $1.29
--------------------------------------------------------------------------------------------------------
Superintendent 8 WKS
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
TEMPORARY UTILITIES $1.360.00 $0.11
--------------------------------------------------------------------------------------------------------
JOB TOILETS 8 WKS
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
PROJECT CLEAN-UP $6,833.75 $0.55
--------------------------------------------------------------------------------------------------------
Daily Clean Up 12,375 SF
--------------------------------------------------------------------------------------------------------
Final Clean Up 12,375 SF
--------------------------------------------------------------------------------------------------------
Dumpster Rental 8 WK
--------------------------------------------------------------------------------------------------------
TOTAL DIVISION 1 $27,287.50 $2.21
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
CONCRETE
--------------------------------------------------------------------------------------------------------
CONCRETE WORK $13,500.00 $1.09
--------------------------------------------------------------------------------------------------------
Sawciut Parking Lot 118 LF, Excavate & Haul, Debris 900 1 LS
SF, Formwork for slabs, 600 LF Rebars, mesh at slabs,
approx 35 yds new concrete, 18 bollards with Sonotube
footings 4' deep and bollard pipes
--------------------------------------------------------------------------------------------------------
TOTAL DIVISION 3
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
CARPENTRY
--------------------------------------------------------------------------------------------------------
FINISH CARPENTRY/MILLWORK $13,494.00 $1.09
--------------------------------------------------------------------------------------------------------
Melamie Shelf & Support with Metal Coat Rod 5 LF
--------------------------------------------------------------------------------------------------------
34
<PAGE>
--------------------------------------------------------------------------------------------------------
Counter Tops with Supports-Plastic Laminate 20 LF
--------------------------------------------------------------------------------------------------------
Copy/Fax Room/Plastic Laminate Base Cabinets & 2 Shelves 9 LF
--------------------------------------------------------------------------------------------------------
Plastic Laminate Base/Wall Cabinets with Counter Top for 10 LF
Break/File Rm
--------------------------------------------------------------------------------------------------------
Folding Wall Partition Standard STC 35 15 LF
--------------------------------------------------------------------------------------------------------
TOTAL DIVISION 6 $13,494.00 $1.09
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
DOORS/HARDWARE/WINDOWS
--------------------------------------------------------------------------------------------------------
WOOD DOORS/FRAMES $43,106.00 $3.48
--------------------------------------------------------------------------------------------------------
Hollow Metal Frames 15 Type A, 5 Type B, 7 Type C & 2 1 LS
Type D, Hollow Metal Doors 29 EA & Hardware Sets 41 each.
--------------------------------------------------------------------------------------------------------
Clean Room Pass Thru Windows with Misc. Framing & Trim 4 EA
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
GLASS & GLAZING $4,300.00 $0.35
--------------------------------------------------------------------------------------------------------
Aluminum Frames and Glass 1 LS
--------------------------------------------------------------------------------------------------------
Relocate Existing Storefront Entry Door 1 EA
--------------------------------------------------------------------------------------------------------
TOTAL DIVISION 8 $47,406.00 $3.83
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
FINISHES
--------------------------------------------------------------------------------------------------------
GENERAL CONSTRUCTION $108,469.50 $8.77
--------------------------------------------------------------------------------------------------------
Wall Types #4, 5 & 6 to Grid 9" high 469 LF
--------------------------------------------------------------------------------------------------------
Type 1 Walls to Deck with Drywall to Deck One Side and 135 LF
Above Ceiling Other
--------------------------------------------------------------------------------------------------------
Drywall Partitions 20' 0" Hght/20 GA. 6" STE-MS/24" 105 LF
OC/58" Dryw.
--------------------------------------------------------------------------------------------------------
Frame & Drywall Drywall Ceiling at Mezzanine 2,950 SF
--------------------------------------------------------------------------------------------------------
Drywall Bulkheads 14 LF
--------------------------------------------------------------------------------------------------------
SKIM Coat Drywall at EPOXY Paint Areas 5,800 SF
--------------------------------------------------------------------------------------------------------
Structural Floor Framing/14" 12 GA Joists & Track 2550 1 LS
LF; Flat Strapping @4' OC
1200 LF; Blocking at Ends, 8" Stud Walls; Platform
Support 253 LF, 3 5/8" Wall on Deck to Deck 240 LF
--------------------------------------------------------------------------------------------------------
Provide Framing for Lights & HEPA Filters @47
Locations 1 LS
--------------------------------------------------------------------------------------------------------
Resin Deck Cat Walk 3/4 x 4 x 8 20 EA
--------------------------------------------------------------------------------------------------------
Standard 2" x 4" Acoustic Ceiling Tile w/Grid 3,840 SF
--------------------------------------------------------------------------------------------------------
2" x 4" Vinyl Ceiling Pads with Aluminum Grid 3,825 SF
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
INTERIOR WALL FINISHES $13,910.80 $1.12
--------------------------------------------------------------------------------------------------------
Paint Doors Only With Two Coats of Enamel Finish 32 EA
--------------------------------------------------------------------------------------------------------
Paint Door Frames Only with Two Coats of Enamel Finish 50 EA
--------------------------------------------------------------------------------------------------------
Paint Window Frames with Two Coats of Enamel Finish 4 EA
--------------------------------------------------------------------------------------------------------
Semi Gloss Oil Based Epoxy Rooms #123, 108 and 109 4,360 LF
--------------------------------------------------------------------------------------------------------
Paint Block in Warehouse 1,520 SF
--------------------------------------------------------------------------------------------------------
Paint all Drywall with Two Coats of Everclean Latex Paint 16,542 SF
--------------------------------------------------------------------------------------------------------
Paint Bollards 18 EA
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
35
<PAGE>
--------------------------------------------------------------------------------------------------------
FLOOR FINISHES $19,679.50 $1.59
--------------------------------------------------------------------------------------------------------
Standard Carpet to be Direct Glue Down Level Loop or Cut 2750 SF
Pile Throughout Office Area (Allowance $11.25/Sq. Yd.
Installed).
--------------------------------------------------------------------------------------------------------
4" Vinyl Cove Base Throughout Office Area 1,680 LF
--------------------------------------------------------------------------------------------------------
Standard 1/8" Commercial Vinyl Composition Tile 3,920 SF
--------------------------------------------------------------------------------------------------------
Medintech/Heat Weld/W/Flash (Includes Floor Prep) 1,930 SF
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
Total Division 9 $142,059.80 $11.48
--------------------------------------------------------------------------------------------------------
SPECIALTIES
--------------------------------------------------------------------------------------------------------
TOILET PARTITIONS & ACCESSORIES $6,490.25 $0.52
--------------------------------------------------------------------------------------------------------
Toilet Partitions Metal 27 LF
--------------------------------------------------------------------------------------------------------
Bathroom Accessories/Mirrors 14 LF, Grab Bars 8 Ea., 1 LS
Toilet
--------------------------------------------------------------------------------------------------------
$11,850.00 $0.95
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
LOCKERS
--------------------------------------------------------------------------------------------------------
Supply and Install 63 Lockers 60HX12WX18D Below and 1 LS
12HX12WX18D Above
--------------------------------------------------------------------------------------------------------
Benches in Locker Room, Gown in and Gown Out, Install 2
Dispensing Racks in Gown in
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
TOTAL DIVISION 10 $18,340.25 $1.48
--------------------------------------------------------------------------------------------------------
MECHANICAL
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
SPRINKLERS $8,910.00 $0.72
--------------------------------------------------------------------------------------------------------
Drop Existing Upturned Sprinkler Heads Thru Acoustic 1 LS
Ceiling System, Sprinkler Heads to be Simi-Recessed and
not Centered in Tile Per Local Code
--------------------------------------------------------------------------------------------------------
$1.80
--------------------------------------------------------------------------------------------------------
PLUMBING $22,300.00
--------------------------------------------------------------------------------------------------------
Following Plumbing Fixtures Include All Necessary
Concrete Sawcut and Removal/Waste/Water and Vents
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Standard Commode Tank Type 1 EA
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Commode With Upgrade Flush Valves 1 EA
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Handicap Commode With Upgrade Flush Valves 4 EA
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Urinal 1 EA
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Lavatory With Necessary Faucet Set to Meet All Codes 6 EA
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Electric Water Cooler To Meet All Codes 2 EA
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Janitor Slop Sink Mounted On A Leg Stand 1 EA
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Floor Drains 3 EA
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Double Bowl Stainless Steel Sink and Faucet 1 EA
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Dishwasher hook-up 1 EA
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HVAC $320,001.00 $25.86
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Per Plans/Spec As Noted In Qualifications 1 EA
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TOTAL DIVISION 15 $351,211.00 $28.38
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ELECTRICAL
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ELECTRICAL SYSTEMS $165,000.00 $13.33
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Per Plans/Spec As Noted in Qualifications 1 EA
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36
<PAGE>
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TOTAL DIVISION 16 $165,000.00 $13.33
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TOTAL COST $778,298.55 $62.89
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OVERHEAD & FEE
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Project Overhead & Fee $77,829.76 $6.29
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TOTAL DIVISION 18 $77,829.76 $6.29
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PROJECT TOTALS: $856,128.31
Total Cost/RSF $69.18 $69.18
Less Landlord Allowance: -$123,750.00
Amount Due By Tenant "ViaCell Inc. $732,378.31
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EXCLUSIONS QUALIFICATIONS/ALTERNATES
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All HVAC And Mechanical Pricing Are Priced Off Drawings
Dated 3/15/02 M-1/M-3 and E-1/E-5
All Architectural Pricing From Drawings Dated 3/25/02
Addendum
No. 1Reision and Clarifications
--------------------------------------------------------------------------------------------------------
37
<PAGE>
EXHIBIT C
IRREVOCABLE LETTER OF CREDIT
(ON BANK LETTERHEAD)
[Insert name and address of issuing bank]
[Insert date]
IRREVOCABLE LETTER OF CREDIT NO. [Insert number].,
Dugan Financing LLC
c/o Duke Realty Limited Partnership
Attn: Chief Financial Officer
600 East 960' Street, Suite 100
Indianapolis, IN 46240
Dear Sir:
At the request and for the account of [insert name of tenant] located at
[insert address of tenant] (hereinafter called "Applicant"), we hereby establish
our Irrevocable Letter of Credit No. [insert number] in your favor and authorize
you to draw on us up to the aggregate amount of US $134,000.00 available by your
draft(s) at sight drawn on us and accompanied by the following:
A written statement by your authorized representative that:
(i) "Applicant is in Default under that certain lease, dated as of
[insert date of lease] between you, as landlord, and Applicant as
tenant (the "Lease");" or
(ii) "Applicant has failed to deliver timely a renewal or new
Irrevocable Letter of Credit as provided in the Lease."
This Irrevocable Letter of Credit will be duly honored by us at sight upon
delivery of the statement set forth above without inquiry as to the accuracy of
such statement and regardless of whether Applicant disputes the content of such
statement.
We hereby engage with you that all drafts drawn under and in compliance
with the terms of this Irrevocable Letter of Credit will be duly honored by us
if presented at [insert address of issuing bank] no later than [insert
expiration date of Letter of Credit], it being a condition of this Irrevocable
Letter of Credit that it shall expire sixty (60) days after the anniversary of
the Commencement Date under the Lease unless, at least sixty (60) days prior to
the relevant expiration date, we provide you, by certified mail, return receipt
requested with a new Irrevocable Letter of Credit with a copy to Duke Realty
Limited Partnership, Attn: General Counsel, 3950 Shackleford Road, Suite 300,
Duluth, GA 30096-8268.
This Irrevocable Letter of Credit is transferable at no charge to any
transferee of landlord upon notice to the undersigned from you and such
transferee.
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<PAGE>
This Irrevocable Letter of Credit is subject to the Uniform Customs and
Practices for Documentary credits (1993-Rev) International Chamber of Commerce
Publication #500 except to the extent such are inconsistent with the provisions
set forth above.
Sincerely yours,
[Insert authorized signature]
39
<PAGE>
EXHIBIT D
RULES AND REGULATIONS
These Rules and Regulations have been adopted for the purpose of insuring
order and safety in the Building and of maintaining the rights of Tenant and of
the Landlord and shall be applied equally by Landlord to all tenants of the
Building.
1. The sidewalks, entrances, driveways and roadways serving and adjacent
to the Leased Premises, are the property of the Landlord, and shall not be
obstructed or used for any purpose other than ingress and egress. The Landlord
shall in all cases retain the right to control and prevent access to the
property, of all persons whose presence, in the judgment of the Landlord or its
employees, shall be prejudicial to the safety, character, reputation or
interests of the property or neighboring buildings.
2. No awnings or other projections shall be attached to the outside walls
of the Building. Neither the interior nor the exterior of any windows shall be
coated or otherwise sunscreened without written consent of Landlord.
3. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown herein. All damages
resulting from any misuse of the fixtures shall be borne by the tenant who, or
whose subtenants, assignees or any of their servants, employees, agents,
visitors or licensees shall have caused the same.
4. No tenant shall mark, paint, drill into or in any way deface any part
of the exterior Leased Premises or in the Building. No boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
the Landlord and as the Landlord may direct.
5. No birds or animals -of any kind shall be brought onto or kept in or
about the Leased Premises, and no cooking shall be done or permitted by any
tenant on the Leased Premises, except microwave cooking, and the preparation of
coffee, tea, hot chocolate and similar items for tenants and their employees
shall be permitted provided power shall not exceed that amount !which can be
provided by a 30-amp circuit. No tenant shall cause or permit any unusual or
objectionable odors to be produced or permeate outside the Leased Premises.
6. The Leased Premises shall not be used for manufacturing, unless the use
conforms to the zoning applicable to the area and the Landlord provides written
consent. No tenant shall operate a business or an office in the Leased Premises
for the manufacture or sale of liquor, narcotics, or tobacco in any form, or as
a retail or wholesale store or general office, in contradiction to the permitted
use in this Lease, without the express written consent of Landlord, not to be
unreasonably withheld. The Leased Premises shall not be used for lodging or
sleeping or for any immoral or illegal purpose.
40
<PAGE>
7. No tenant shall make, or permit to be made, any noise which may disturb
or interfere with occupants of neighboring buildings whether by the use of any
musical instrument, radio, phonograph, unusual noise or in any other way.
8. No tenant, subtenant or assignee nor any of its servants, employees,
agents, visitors or licensees shall at any time bring or keep upon the Leased
Premises any flammable, combustible or explosive fluid, chemical or substance,
other than that which is ordinary and necessary for the tenant's use of the
Leased Premises, as contemplated herein.
9. Each tenant must upon the termination of its tenancy, deliver to the
Landlord all keys to the offices, storage rooms, toilet rooms, either furnished
to, or otherwise procured by, such tenant.
10. All persons employed by any tenant to do work upon the Leased
Premises, while in the Building and outside of the Leased Premises, shall be
subject to and under the control and direction of the tenant, and tenant shall
be responsible for all acts of such persons.
11. Canvassing, soliciting and peddling in the adjacent buildings are
prohibited, and each tenant shall report and otherwise cooperate to prevent the
same.
12. Tenant agrees that it shall not discriminate upon the basis of race,
color, religion, sex or national origin in the use and, occupancy or in any
sublease or subletting of the Leased Premises.
13. No outside storage is permitted including without limitation the
storage of trucks and other vehicles.
14. The Landlord reserves the right to reasonably rescind, modify or
supplement any of these rules and to make such other and further reasonable
rules and regulations which, in the Landlord's judgment may from time to time be
necessary for the safety and cleanliness of the Leased Premises, and for the
assurance of good order therein. Landlord agrees to provide Tenant with a copy
of said rules which shall be deemed a part of this Lease.
Anything contained in these Rules and Regulations which is contrary to or
inconsistent with any express provision of the Lease shall be void and of no
force and effect.
41
<PAGE>
EXHIBIT E
Existing 10% Plans Referenced in Section 16.13 ERISA Matters None
None
42
<PAGE>
EXHIBIT F
DIAGRAM (SEE ORIGINAL)
43
<PAGE>
EXHIBIT G
DIAGRAM (SEE ORIGINAL)
44
<PAGE>
DISCLOSURE OF AGENCY RELATIONSHIP
The following agent, Bill Chester, and Duke Realty Services Ltd. Partnership,
the brokerage with which the agent is affiliated, disclose the following
concerning their agency relationship (CHECK APPROPRIATE BOX - ONLY ONE:
[ ] 'They represent the seller as the seller's agent.
[ ] They represent the buyer as the buyers agent.
Disclosure of the potential future agency relationships that could be created:
(CHECK APPROPRIATE BOX(s) THAT APPLY):
[ ] They represent the seller as a subagent.
[ ] They represent the buyer as a subagent.
[ ] The same agent who represents you could potentially represent the other
party in a transaction involving you. The agent and brokerage would
both be DUAL' AGENTS. A management level licensee Is a dual agent In an
In-company transaction.
[ ] A different agent In the same brokerage could potentially represent the
other party in a transaction Involving you. Each agent would represent
(the interest of their separate client. The brokerage would be a DUAL
AGENT.
--------------------------------------------------------------------------------
BY SIGNING THIS FORM YOU INDICATE YOUR CONSENT TO THE AGENCY. RELATIONSHIP
DISCLOSED ABOVE BEFORE YOU CONSENT TO ANY AGENCY RELATIONSHIP, YOU SHOULD FULLY
UNDERSTAND THE INFORMATION FOUND ON THE REVERSE SIDE OF THIS FORM. IF YOU, DO
NOT UNDERSTAND THE INFORMATION CONTAINED ANYWHERE IN THIS FORM, YOU SHOULD
CONSULT AN ATTORNEY.
--------------------------------------------------------------------------------
CONSENT
--------------------------------------- ---------------------------------------
Buyer/Tenant Date Seller/Landlord Date
--------------------------------------- ---------------------------------------
Buyer/Tenant Date Seller/Landlord Date
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TO BE COMPLETED ONLY IN AN IN-COMPANY TRANSACTION INVOLVING
TWO AGENTS
45
<PAGE>
Both buyer and seller ACKNOWLEDGE AND AGREE that In a contemplated transaction
Involving property located at __________________________________________________
the buyer is represented by
____________________________________________________________________________ and
the sailor Is represented by
____________________________________________________________________________ and
--------------------------------------------------------------------------------
YOU DO NOT HAVE TO CONSENT TO DUAL AGENCY. BEFORE YOU CONSENT TO ANY
AGENCY RELATIONSHIP, YOU SHOULD FULLY UNDERSTAND THE INFORMATION
FOUND ON THE REVERSE SIDE OF THIS FORM. IF YOU DO NOT UNDERSTAND THE
INFORMATION CONTAINED ANYWHERE IN THIS FORM, YOU SHOULD CONSULT AN
ATTORNEY.
--------------------------------------------------------------------------------
By Initialing below BOTH PARTIES ACKNOWLEDGE AND AGREE that they are aware that
both agents are affiliated with the same brokerage; that each agent will
represent the separate Interest of their separate client, except, if a
management level licensee is one of the agents involved in the transaction; that
it was previously disclosed that this could occur; and that THEY CONSENT TO THE
BROKERAGE ACTING AS A DUAL AGENT.
Buyer/Tenant Initials:________________________ Date.________________________
Seller/Landlord's Initials:___________________ Date:________________________
Any questions regarding the role or responsibilities of the brokerage or
its agents in Ohio can be
Directed to an attorney or to:
Ohio Division of Real Estate
77 S. High Street 20th Floor
Columbus, Ohio 43266-0547
(814) 466-4100
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<PAGE>
AGENCY DISCLOSURE STATEMENT
This disclosure form Is 6GIng provided to help you make an informed choice
regarding the type of relationship you wish to enter into with the real estate
agent. It Is also intended to help you understand the role of other agents who
may be Involved in your real estate transaction. For purposes of the form, the
term "seller" Includes a landlord and the, term "buyer" Includes a tenant.
When you enter into an agency relationship with a real estate agent, the real
estate brokerage with whom the agent Is affiliated also becomes your agent.
Unless they are appointed to represent you, the other agents in the brokerage
are not, your agents and do not represent you.
AGENCY RELATIONSHIPS PERMITTED IN OHIO
Seller Agency: In this type of relationship, the agent and the brokerage owe the
seller the duties of loyalty, obedience, confidentiality, accounting, and
reasonable skill and care in performing their duties, and any other duties
contained in an agency agreement. The agent and brokerage are required to act
solely on behalf of the seller's interest to seek the best price and terms for
the seller. Finally, a seller's agent and brokerage also have a duty to disclose
to the seller all material Information obtained from the buyer or from any other
source.
Subagency: In this type of relationship, buyer's/sellers may authorize their
agent and brokerage to offer subagency to other licensees/brokerages. A subagent
also represents the client's Interests and has all of the same duties as the
client's agent, including a duty of loyalty and confidentiality and a duty to
disclose all material facts to the client.
Buyer's Agency: In this type of relationship, a buyer's agent and the brokerage
owe the buyer the duties of loyalty, obedience, confidentiality, accounting, and
reasonable skill and care in performing their duties and any other contained in
an agency agreement. The agent and brokerage are required to act solely on
behalf of the buyer's Interests to seek the best price and terms for the buyer.
Finally, a buyer's agent and brokerage also have a duly to disclose to the buyer
all material Information obtained from the seller or, from any other source.
Disclosed Dual Agency: In the type of relationship, one agent may represent both
parties in a real estate transaction, BUT ONLY IF BOTH PARTIES CONSENT.
Disclosed dual agency is most likely to occur when both the buyer and seller are
represented by the same agent. IF THIS HAPPENS, THE BUYER AND SELLER MUST SIGN A
SEPARATE DUAL AGENCY DISCLOSURE STATEMENT that describes the duties and
obligations of the dual agent. A dual agent may not disclose any confidential
Information that would place one party at an advantage over the other party and
may not disclose any of the following information without the Informed consent
of the party to whom the Information pertains: 1) that a buyer is willing to pay
more than the price offered;. 2) that a seller is willing to accept less than.
the asking price; 3) motivating factors of either party for buying or selling;
4) that a party will agree to financing terms other then those offered; 5)
repairs or improvements a seller is willing to make as a condition of sale; and
6) or any concession having. an economic impact upon the transaction that either
party is willing to make.
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<PAGE>
Permitted Agency Relationships In an In-Company Transaction: In an In-Company
transaction where the buyer and seller are both represented as clients by the
same brokerage, the following applies: If only One agent is involved in the
transaction, that agent represents both the buyer and the seller. The agent and
the brokerage are dual agents and cannot disclose confidential information to
either client. If two agents are involved in the transaction, you and the other
party will be represented by the agent with who you have each entered into an
agency relationship. Each agent will represent the sole interest of his/her
client and must not share confidential information with each other. The
brokerage is a dual agent. The only exception is if a management level licensee
is one of the agents involved in the transaction. In this case, the management
level licensee and the brokerage represent both the buyer and seller as dual
agents.
The brokerage's role, as a dual agent, is to do the following:
- Objectively supervise the agents involved so they can each fulfill their
duties, as outlined, above, to each of their clients;
- Assist the parties, in an unbiased manner, to negotiate a contract;
- Assist the parties, in an unbiased manner, to fulfill the terms of any
contract.
As a duel agent, the brokerage cannot:
- Advocate or negotiate on behalf of either the buyer or seller;
- Disclose confidential information to any party or any other employee or
agent of the brokerage;
- Use confidential Information of one party to benefit the other party to
the transaction.
48