1
EXHIBIT 10.16
OFFICE LEASE
at
INVERNESS CENTER
Between
METROPOLITAN LIFE INSURANCE COMPANY
(LANDLORD)
and
▇▇▇▇▇▇▇ TXEN CORPORATION
(TENANT)
DATE: April 13, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE ONE..................................................................................... 1
1.01 BASIC LEASE PROVISIONS............................................................... 1
1.02 ENUMERATION OF EXHIBITS............................................................... 1
1.03 DEFINITIONS........................................................................... 2
ARTICLE TWO..................................................................................... 4
2.01 LEASE OF PREMISES..................................................................... 4
2.02 TERM.................................................................................. 4
2.03 FAILURE TO GIVE POSSESSION............................................................ 4
2.04 AREA OF PREMISES...................................................................... 4
2.05 CONDITION OF PREMISES................................................................. 4
ARTICLE THREE................................................................................... 4
ARTICLE FOUR.................................................................................... 4
4.01 RENT ADJUSTMENTS...................................................................... 4
4.02 STATEMENT OF LANDLORD................................................................. 5
4.03 BOOKS AND RECORDS..................................................................... 5
4.04 PARTIAL OCCUPANCY..................................................................... 5
ARTICLE FIVE.................................................................................... 5
ARTICLE SIX..................................................................................... 5
6.01 LANDLORD'S GENERAL SERVICES........................................................... 5
6.02 ELECTRICAL SERVICES................................................................... 6
6.03 ADDITIONAL AND AFTER-HOUR SERVICES.................................................... 6
6.04 TELEPHONE SERVICES.................................................................... 6
6.05 DELAYS IN FURNISHING SERVICES......................................................... 7
6.06 CHOICE OF SERVICE PROVIDED............................................................ 7
ARTICLE SEVEN................................................................................... 7
7.01 POSSESSION AND USE OF PREMISES........................................................ 7
7.02 LANDLORD ACCESS TO PREMISES; APPROVALS................................................ 7
7.03 QUIET ENJOYMENT....................................................................... 8
ARTICLE EIGHT................................................................................... 8
8.01 LANDLORD'S MAINTENANCE................................................................ 8
8.02 TENANTS MAINTENANCE................................................................... 8
ARTICLE NINE.................................................................................... 8
9.01 TENANTS ALTERATIONS................................................................... 8
9.02 LIENS................................................................................. 9
ARTICLE TEN..................................................................................... 9
10.01 ASSIGNMENT AND SUBLETTING............................................................ 9
10.02 RECAPTURE............................................................................ 10
10.03 EXCESS RENT.......................................................................... 10
10.04 TENANT LIABILITY..................................................................... 10
10.05 ASSUMPTION AND ATTORNMENT............................................................ 10
ARTICLE ELEVEN.................................................................................. 11
11.01 EVENTS OF DEFAULT.................................................................... 11
11.02 LANDLORD'S REMEDIES.................................................................. 11
11.03 ATTORNEY'S FEES...................................................................... 11
11.03 BANKRUPTCY........................................................................... 12
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ARTICLE TWELVE.................................................................................. 12
12.01 IN GENERAL........................................................................... 12
12.02 LANDLORD'S RIGHTS.................................................................... 12
ARTICLE THIRTEEN................................................................................ 13
ARTICLE FOURTEEN................................................................................ 13
14.01 SUBSTANTIAL UNTENANTABILITY.......................................................... 13
14.02 INSUBSTANTIAL UNTENANTABILITY........................................................ 13
14.03 RENT ABATEMENT....................................................................... 13
ARTICLE FIFTEEN................................................................................. 13
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART.................................................. 13
15.02 TAKING OF PART....................................................................... 14
15.03 COMPENSATION......................................................................... 14
ARTICLE SIXTEEN................................................................................. 14
16.01 TENANT'S INSURANCE................................................................... 14
16.02 FORM OF POLICIES..................................................................... 14
16.03 LANDLORD'S INSURANCE................................................................. 14
16.04 WAIVER OF SUBROGATION................................................................ 14
16.05 NOTICE OF CASUALTY................................................................... 15
ARTICLE SEVENTEEN............................................................................... 15
17.01 WAIVER OF CLAIMS..................................................................... 15
17.02 INDEMNITY BY TENANT.................................................................. 15
ARTICLE EIGHTEEN................................................................................ 15
18.01 RULES................................................................................ 15
18.02 ENFORCEMENT.......................................................................... 15
ARTICLE NINETEEN................................................................................ 16
ARTICLE TWENTY.................................................................................. 16
20.01 IN GENERAL........................................................................... 16
20.02 ENFORCEMENT.......................................................................... 16
ARTICLE TWENTY-ONE.............................................................................. 16
ARTICLE TWENTY-TWO.............................................................................. 16
ARTICLE TWENTY-THREE............................................................................ 16
23.01 SUBORDINATION AND ATTORNMENT......................................................... 16
23.02 MORTGAGEE PROTECTION................................................................. 17
ARTICLE TWENTY-FOUR............................................................................. 17
ARTICLE TWENTY-FIVE............................................................................. 18
25.01 IN GENERAL........................................................................... 18
25.02 STORAGE SPACE RENT................................................................... 18
25.03 RELOCATION........................................................................... 18
ARTICLE TWENTY-SIX.............................................................................. 18
26.01 LATE CHARGES......................................................................... 18
26.02 WAIVER OF JURY TRIAL................................................................. 18
26.03 DEFAULT UNDER OTHER LEASE............................................................ 18
26.04 OPTION............................................................................... 18
26.05 TENANT AUTHORITY..................................................................... 18
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26.06 ENTIRE AGREEMENT..................................................................... 18
26.07 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE....................................... 18
26.08 EXCULPATION.......................................................................... 18
26.09 ACCORD AND SATISFACTION.............................................................. 19
26.10 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING........................................... 19
26.11 BINDING EFFECT....................................................................... 19
26.12 CAPTIONS............................................................................. 19
26.13 APPLICABLE LAW....................................................................... 19
26.14 ABANDONMENT.......................................................................... 19
26.15 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES.......................................... 19
26.16 RIDERS............................................................................... 19
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OFFICE LEASE
ARTICLE ONE
BASIC LEASE PROVISIONS
1.01 BASIC LEASE PROVISIONS
In the event of any conflict between these Basic Lease Provisions and any other
Lease provision, such other Lease provision shall control.
(1) BUILDING AND ADDRESS: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(2) LANDLORD AND ADDRESS: Metropolitan Life Insurance Company,
a New York corporation
c/▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(3) TENANT AND CURRENT ADDRESS:
(a) Name: ▇▇▇▇▇▇▇ TXEN Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) State of [incorporation] or [partnership]: Delaware
(4) DATE OF LEASE: April 13, 1998
(5) LEASE TERM: October 1, 1998-March 31, 1999 (6 Months)
(6) PROJECTED COMMENCEMENT DATE: October 1, 1998
(7) PROJECTED EXPIRATION DATE: 6 months after the Commencement Date
(8) MONTHLY BASE RENT:
Period from/to Monthly Annually Rate/SF of Rentable Area
10/1/98 - 3/31/99 $36,920.00 $443,040.00 $20.00
----------------- ---------- ----------- ------------------------
----------------- ---------- ----------- ------------------------
----------------- ---------- ----------- ------------------------
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----------------- ---------- ----------- ------------------------
(9) RENTABLE AREA OF THE BUILDING: 128,501 square feet
(10) RENTABLE ARES OF THE PREMISES: 22,152 square feet
(11) SECURITY DEPOSIT: None ($)
(12) SUITE NUMBER OF PREMISES: 500
(13) TENANTS SHARE: % 17.24%
(14) OPERATING EXPENSE STOP: 1998 Actual Operating Expenses
(15) TENANTS USE OF PREMISES: General office use.
1.02 ENUMERATION OF EXHIBITS
The exhibits set forth below and attached to this Lease are incorporated in
this Lease by this reference:
EXHIBIT A. Plan of Premises
EXHIBIT D. Rules and Regulations
RIDER 1. Commencement Date Agreement
1.03 DEFINITION
For purposes hereof, the following terms shall have the following meanings:
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AFFILIATE: Any corporation or other business entity which is currently owned or
controlled by, owns or controls, or is under common ownership or control with
Tenant.
ADJUSTMENT YEAR. The calendar year or any portion thereof after the Commencement
Date of this Lease for which a Rent Adjustment computation is being made.
BUILDING: The office building located at
COMMENCEMENT DATE: The date specified in Section 1.01(6) as the Projected
Commencement Date, unless changed by operation of Article Two.
COMMON AREAS: All areas of the Real Property made available by Landlord from
time to time for the general common use or benefit of the tenants of the
Building, and their employees and invitees, or the public, as such areas
currently exist and as they may be changed from time to time.
DECORATION: Tenant Alterations which do not require a building permit and which
do not involve any of the structural elements of the Building, or any of the
Buildings system, including, without limitation, its electrical, mechanical,
plumbing and security and life/safety systems.
DEFAULT RATE: Two percent (2%) above the rate then most recently announced by
[Regional Money Center Bank] as its corporate base lending rate, from time to
time announced, but in no event higher that the maximum rate permitted by law.
ENVIRONMENTAL LAWS: Any Law governing the use, storage, disposal or generation
of any Hazardous Material, including without limitation, the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended and
the Resource Conservation and Recovery Act of 1976, as amended.
EXPIRATION DATE: The date specified in Section 1.01(7) unless changed by
operation of Article Two.
FORCE MAJEURE: Any accident, casualty, act of God, war or civil commotion,
strike or labor troubles, or any cause whatsoever beyond the reasonable control
of Landlord, including, but not limited to, energy shortages or governmental
preemption in connection with a national emergency, or by reason of government
laws or any rule, order or regulation of any department or subdivision thereof
any governmental agency, or by reason of the conditions of supply and demand
which have been or are affected by war or other emergency.
HAZARDOUS MATERIAL: Such substances, material and wastes which are or become
regulated under any Environmental Law, or which are classified as hazardous or
toxic under any Environmental Law, and explosives and firearms, radioactive
material, asbestos, and polychlorinated biphenlys.
INDEMNITIES: Collectively, Landlord, any Mortgagee or ground lessor of the
Property, the property manager, the leasing manager and the Manager for the
Property and their respective directors, officers, agents and employees.
LAND: The parcels of real estate on which the Building is located.
LANDLORD WORK: The construction or installation of improvements to the Premises,
to be furnished by Landlord, specifically described in the Workletter or
exhibits attached hereto.
LAWS: All laws, ordinances, rules, regulations, other requirements, orders,
rulings or decisions adopted or made by any governmental body, agency,
department or judicial authority having jurisdiction over the Property, the
Premises or Tenant's activities at the Premises and any covenants, conditions or
restrictions of record which affect the Property.
LEASE: This instrument and all exhibits and riders attached hereto, as may be
amended from time to time.
LEASE YEAR. The twelve month period beginning on the first day of the first
month following the Commencement Date (unless the Commencement Date is the first
day of a calendar month in which cam beginning on the Commencement Date), and
each subsequent twelve month, or shorter, period until the Expiration Date.
MANAGER: ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., a Georgia corporation
MONTHLY BASE RENT: The monthly rent specified in Section 1.01(8).
MORTGAGEE: Any holder of a mortgage, deed of trust or other security instrument
encumbering the Property.
NATIONAL HOLIDAYS: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day and other holidays organized by the Landlord
and the janitorial mid other unions servicing the Building in accordance with
their contracts.
OPERATING EXPENSES: All costs, expenses and disbursements of every kind and
nature which Landlord shall pay or become obligated to pay in connection with
the ownership, management, operation, maintenance, replacement and repair of the
Property (including, without limitation, the amortized portion of any capital
expenditure or improvement, together with interest thereon, and the costs of
changing utility service providers). Operating Expenses shall not include, (i)
costs of alterations of the premises of tenants of the Building, (ii) costs of
capital improvements to the Building (except for amortized portion of capital
improvements installed for the purpose of reducing or controlling Operating
Expenses or complying with applicable Laws), (iii) depreciation charges, (iv)
interest and principal payments on loans (except for loans for capital
improvements which Landlord is allowed to include in Operating Expenses as
provided above), (v) ground rental payments, (vi) real estate brokerage and
leasing commissions, (vii) advertising and marketing expenses, (viii) costs of
Landlord reimbursed by insurance proceeds, (ix) expenses incurred in negotiating
leases of other tenants in the Building or enforcing lease obligations of other
tenants in the Building and (x) Landlord's or Landlord's property manager's
corporate general overhead or corporate general administrative expenses. If any
Operating Expense though paid in one year, relates to more than one calendar
year, at option of Landlord such expense may be proportionately allocated among
such related calendar years.
OPERATING EXPENSE STOP: The amount set forth in Section 1.01 (14).
PARK: The office complex known as Inverness Center.
PREMISES: The space located in the Building described in Section 1.01(10) and
depicted on Exhibit A attached hereto.
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[Note: PROJECT: (in multi-building projects, insert appropriate
definition of Project).]
PROPERTY: The Building, the Land, any other improvements located on the Land,
including, without limitation, any parking structures and the personal property,
fixtures, machinery, equipment, systems and apparatus located in or used in
conjunction with any of the foregoing.
REAL PROPERTY The Property excluding any personal property.
RENT: Collectively, Monthly Base Rent, Storage Space Rent, Rent Adjustments and
Rent Adjustment Deposits, and all other charges, payments, late fees or other
amounts required to be paid by Tenant under this Lease.
RENTABLE AREA OF THE BUILDING: 128,501 square feet, which represents the sum of
the rentable area of all office space in Building.
RENTABLE AREA OF THE PREMISES: The amount of square footage set forth in
1.01(10).
RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating Expenses or
Taxes. The Rent Adjustments shall be determined and paid as provided in Article
Four.
RENT ADJUSTMENT DEPOSIT: An amount equal to the Rent Adjustments attributable to
each month within the latest Adjustment Year for which the Rent Adjustments has
been determined. Landlord shall estimate the Rent Adjustment Deposit for the
remainder of the first calendar year of this Lease based on the Taxes and
Operating Expenses of the Property.
SECURITY DEPOSIT: The funds specified in Section 1.01(l1), if any, deposited by
Tenant with Landlord as security for Tenant's performance of its obligations
under this Lease.
STANDARD OPERATING HOURS: Monday through Friday from 8.00 A.M. to 6:00 P.M.,
Saturday from 8:00 A.M. to 1:00 P.M., excluding National Holidays.
SUBSTANTIALLY COMPLETE: The completion of the Landlord Work or Tenant Work, as
the case may be, except for minor insubstantial details of construction,
decoration or mechanical adjustments which remain to be done.
TAXES: All federal, state and local governmental taxes, assessments and charges
of every kind or nature, whether general, special, ordinary or extraordinary,
which Landlord shall pay or become obligated to pay because of or in connection
with the ownership, leasing, management control or operation of the Property or
any of its components, or any personal property used in connection therewith,
which shall also include any rental or similar taxes levied in lieu of or in
addition to general real and/or personal property taxes. For purposes hereof,
Taxes for any year shall be Taxes which we assessed or become a lien during such
year, whether or not such taxes are billed and payable in a subsequent calendar
year. There shall be included in Taxes for any year the amount of all fees,
costs and expenses (including reasonable attorneys' fees) paid by Landlord
during such year in seeking or obtaining any refund or reduction of Taxes. Taxes
for any year shall be reduced by the net amount of any tax refund received by
Landlord attributable to such year. If a special assessment payable in
installments is levied against any part of the Property, Taxes for any year
shall include only the installment of such assessment and any interest payable
or paid during such year. Taxes shall not include any federal or state
inheritance, general income, gift or estate taxes, except that if a change
occurs in the method of taxation resulting in whole or in part in the
substitution of any such taxes, or any other assessment, for any Taxes as above
defined, such substituted taxes or assessments shall be included in the Taxes.
TENANT ADDITIONS: Collectively, Tenant Work and Tenant Alterations.
TENANT ALTERATIONS: Any alterations, improvements, additions, installations or
construction in or to the Premises or any Real Property systems serving the
Premises (whether done as part of Landlord Work or Tenant Work) and any
supplementary air-conditioning system installed by Landlord or by Tenant at
Landlord's request pursuant to Section 6.01(b).
TENANT DELAY: Any event or occurrence which delays the completion of the
Landlord Work which is caused by or is described as follows:
(i) special work, changes, alterations or additions requested or
made by Tenant in the design or finish in any part of the
Premises after approval of the plans and specifications (as
described in the Workletter);
(ii) Tenant's delay in submitting plan, supplying information,
approving plans, specifications or estimates, giving
authorizations or otherwise;
(iii) failure to approve and pay for such Tenant Work as Landlord
undertakes to complete at Tenant's expense; or
(iv) the performance or completion by Tenant or any person engaged
by Tenant of any work in or about the Premises.
TENANT WORK: All work installed or furnished to the Premises by Tenant pursuant
to the Workletter.
TENANT'S SHARE: The percentage specified in Section 1.01(13) which represents
the ratio of the Rentable Area of the Premises to the Rentable Area of the
Building
TERM: The term of this Lease commencing on the Commencement Date and expiring on
the Expiration Date.
TERMINATION DATE: The Expiration Date or such earlier date as this Lease
terminates or Tenant's right to possession of the Premises terminates.
WORKLETTER: The Agreement regarding the manner of completion of Landlord Work
and Tenant Work attached as Exhibit B attached hereto.
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ARTICLE TWO
PREMISES, TERM AND FAILURE TO GIVE POSSESSION
2.01 LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises for the Term and upon the terms, covenants and conditions provided in
this Lease. In the event Landlord delivers possession of the Premises to Tenant
prior to the Commencement Date, Tenant shall be subject to all of the terms,
covenants and conditions of this Lease (except with respect to the payment of
Rent) as of the date of such possession.
2.02 TERM
(a) The Commencement Date shall be the date determined as follows:
(1) If the Landlord Work is Substantially Complete on or
before the Projected Commencement Date then on the
date which is the earlier to occur of
(i) the Projected Commencement Date, or
(ii) the date Tenant first occupies all or part
of the Premises for the conduct of business;
or
(2) If the Landlord Work is not Substantially Complete by
the Projected Commencement Date, then on the date on
which the Landlord Work is Substantially Complete.
(b) Within thirty (30) days following the occurrence of the
Commencement Date, Landlord and Tenant shall enter into an
agreement (which is attached hereto as Rider 1) confirming the
Commencement Date and the Expiration Date. If Tenant fails to
enter into such agreement, then the Commencement Date and the
Expiration Date shall be the dates designated by Landlord in
such agreement.
2.03 FAILURE TO GIVE POSSESSION
If the Landlord shall be unable to give possession of the Premises on the
Projected Commencement Date by reason of the following: (i) the Building has not
been sufficiently completed to make the Premises ready for occupancy, (ii) the
Landlord Work is not Substantially Complete, (iii) the holding over or retention
of possession of any tenant, tenants or occupants, or (iv) for any other reason,
then Landlord shall not be subject to any liability for the failure to give
possession on said date. Under such circumstances the rent reserved and
covenanted to be paid herein shall not commence until the Premises are made
available to Tenant by Landlord, and no such failure to give possession on the
Projected Commencement Date shall affect the validity of this Lease or the
obligations of the Tenant hereunder. At the option of Landlord to be exercised
within thirty (30) days of the delayed delivery of possession to Tenant, the
Lease shall be amended so that the term shall be extended by the period of time
possession is delayed. The said Premises shall be deemed to be ready for
Tenant's occupancy in the event Landlord's Work is Substantially Complete, or if
the delay in the availability of the Premises for occupancy shall be due to any
Tenant Delay and/or default on the part of Tenant and/or its subtenant or
subtenants. In the event of any dispute as to whether either of the Landlord
Work or Tenant Work is Substantially Complete, the decision of Landlord's
architect shall be final and binding on the parties.
2.04 AREA OF PREMISES
Landlord and Tenant agree that for all purposes of this Lease the Rentable Area
of the Premises and the Rentable Area of the Building as set forth in Article
One are controlling, and are not subject to revision after the date of this
Lease.
2.05 CONDITION OF PREMISES
Tenant shall notify Landlord in writing within thirty (30) days after the later
of Substantial Completion of the Landlord Work or when Tenant takes possession
of the Premises of any defects in the Premises claimed by Tenant or in the
materials or workmanship furnished by Landlord in completing the Landlord Work.
Except for defects stated in such notice, Tenant shall be conclusively deemed to
have accepted the Premises "AS IS" in the condition existing on the date Tenant
first takes possession, and to have waived all claims relating to the condition
of the Premises. Landlord shall proceed diligently to correct the defects stated
in such notice unless Landlord disputes the existence of any such defects. In
the event of any dispute as to the existence of any such defects, the decision
of Landlord's architect shall be final and binding on the parties. No agreement
of Landlord to alter, remodel, decorate, clean or improve the Premises or the
Real Property and no representation regarding the condition of the Premises or
the Real Property has been made by or on behalf of Landlord to Tenant, except as
may be specifically stated in this Lease or in the Workletter.
ARTICLE THREE
RENT
Tenant agrees to pay to Landlord at the office specified in Section 1.01(2), or
to such other persons, or at such other places designated by Landlord, without
any prior demand therefor in immediately available funds and without any
deduction or offset whatsoever, Rent, including, without limitation, Monthly
Base Rent and Rent Adjustments in accordance with Article Four, during the Term.
Monthly Base Rent shall be paid monthly in advance on the first day of each
month of the Term, except that the first installment of Monthly Base Rent shall
be paid by Tenant to Landlord on the Commencement Date. Monthly Base Rent shall
be prorated for partial months within the Term. Unpaid Rent shall bear interest
at the Default Rate from the date due until paid. Tenants covenant to pay Rent
shall be independent of every other covenant in this Lease.
ARTICLE FOUR
RENT ADJUSTMENTS AND PAYMENTS
4.01 RENT ADJUSTMENTS
Tenant shall pay to Landlord Rent Adjustments during the Term as follows:
(i) The Rent Adjustment Deposit representing Tenant's Share of
Operating Expenses and Taxes attributable to any calendar year
(or portion thereof) monthly during the Term with the payment
of Monthly Base Rent except the first installment which shall
be paid by Tenant to Landlord on the Commencement Date; and
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(ii) Any Rent Adjustments due in excess of the Rent Adjustment
Deposits in accordance with Section 4.02. Rent Adjustments due
horn Tenant to Landlord for any calendar year (or portion
thereof) during the term shall be Tenant's Share of Operating
Expenses for such year in excess of the operating Expense
Stop.
4.02 STATEMENT OF LANDLORD
As soon as feasible after the expiration of each calendar year of this Lease,
Landlord will furnish Tenant a statement ("Landlords Statement") showing the
following:
(i) Operating Expenses; and Tam for the Adjustment Year,
(ii) The amount of Rent Adjustments due Landlord for the Adjustment
Year, less credit for Rent Adjustment Deposits paid, if any,
mid
(iii) The Rent Adjustment Deposit due monthly in the calendar year
next following the Adjustment Year including the amount or
revised amount due for months prior to the rendition of the
statement.
Tenant shall pay to Landlord within ten (10) days after receipt of such
statement any amounts for Rent Adjustments then due in accordance with Landlords
Statement. Any amounts due from Landlord to Tenant pursuant to this Section
shall be credited to the Rent Adjustment Deposit next coming due, or refunded to
Tenant if the Term has already expired provided Tenant is not in default
thereunder. No interest or penalties shall accrue on any amounts which Landlord
is obligated to credit to Tenant by reason of this Section 4.02. Landlord's
failure to deliver Landlord's Statement or in computing the amount of the Rent
Adjustments shall not constitute a waiver by Landlord of its right to deliver
such items nor constitute a release of Tenant's obligations to pay such amounts.
The Rent Adjustment Deposit shall be credited against Rent Adjustments due for
the applicable Adjustment Year. During the last complete calendar year or during
any partial calendar year in which the Lease terminates, Landlord may include in
the Rent Adjustment Deposit its estimate of Rent Adjustments which may not be
finally determined until after the termination of the Lease. Tenant's obligation
to pay Rent Adjustments survives the expiration or termination of the Lease.
Notwithstanding the foregoing, in no event shall the sum of Monthly Base Rent
and the Rent Adjustments be less than the Monthly Base Rent payable.
4.03 INTENTIONALLY OMITTED
4.04 PARTIAL OCCUPANCY
For purposes of determining Rent Adjustments for any Adjustment Year if the
Building is not fully rented during all or a portion of any year, Landlord may
make appropriate adjustments to the Operating Expenses for such Adjustment Year
employing sound accounting and management principles consistently applied, to
determine the amount of Operating Expenses that would have been paid or incurred
by Landlord had the Building been 95% occupied, and the amount so determined
shall be deemed to have been the amount of Operating Expenses for such
Adjustment Year. In the event that the Real Property is not fully assessed for
any year, then Taxes shall be adjusted to an mount which would have been payable
in such year if the Real Property had been fully assessed. In the event any
other tenant in the building provides itself with a service which Landlord would
supply under the Lease without an additional or separate charge to Tenant, then
Operating Expenses shall be deemed to include the cost Landlord would have
incurred had Landlord provided such service to such other tenant.
ARTICLE FIVE
SECURITY DEPOSIT
ARTICLE SIX
SERVICES
6.01 LANDLORD'S GENERAL SERVICES
(a) So long as the Lease is in full force and effect and Tenant
has paid all Rent then due, Landlord shall furnish the
following services:
(1) heat, ventilation and air-conditioning in the
Premises during Standard Operating Hours, as
necessary in Landlord's reasonable judgment for the
comfortable occupancy of the Premises under normal
business operations, subject to compliance with all
applicable voluntary and mandatory regulations and
Laws;
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(2) tempered and cold water for use in lavatories in
common with other tenants from the regular supply of
the Building;
(3) customary cleaning and janitorial services in the
Premises five (5) days per week (Monday through
Friday) excluding National Holidays;
(4) washing of the outside windows in the Premises
weather permitting at intervals determined by
Landlord;
(5) automatic passenger elevator service in common with
other tenants of the Building and freight elevator
service subject to reasonable scheduling by Landlord
and payment of Landlord's standard charges;
(b) Wherever heat generating machines or equipment are used by
Tenant in the Premises, the following additional provisions
shall apply:
(1) If the use of such machinery exceeds the limits
established in Exhibit C thereby affecting the
temperature otherwise maintained by the air-cooling
system or whenever the occupancy or electrical load
exceeds the standards set forth in Exhibit C,
Landlord reserves the right to install or to require
Tenant to install supplementary air-conditioning
units in the Premises. Tenant shall bear all costs
and expenses related to the installation, maintenance
and operation of such units.
(2) Tenant shall pay Landlord within thirty (30) days at
rates fixed by Landlord for all tenants in the
Building, charges for all water furnished to the
Premises for other purposes, including the expenses
of installation of a water line, meter and fixtures.
6.02 ELECTRICAL SERVICES
(a) The electricity used during the performance of janitorial
service or the making of alterations or repairs in the
Premises by Landlord shall be paid by Tenant. Tenant also
agrees to purchase from Landlord or its agents at competitive
prices fixed by Landlord for all tenants in the Building all
lamps, ballasts and starters used in the Premises, and to
pay a reasonable installation charge for any such item
installed by Landlord at Tenant's request. Landlord reserves
the right to provide electricity to Tenant and in such event
Tenant agrees to purchase electricity from Landlord at
Landlord's then current charges. Tenant shall make no
alterations or additions to the electric equipment or systems
without the prior written consent of the Landlord in each
instance.
(b) If Premises are separately metered, Tenant shall make all
necessary arrangements with the utility provider chosen by
Landlord for furnishing, metering and paying for electricity
furnished by it to Tenant and consumed on the Premises.
Landlord shall permit Landlord's wire and conduits, to the
extent available and safely capable, to be used for such
purposes.
(c) If the Premises are not separately metered for any reason,
Tenant shall pay Landlord as additional Rent, in monthly
installments at the time prescribed for monthly installments
of Monthly Base Rent, an amount, reasonably estimated by
Landlord from time to time, which Tenant would pay for such
electricity if the same were separately metered to the
Premises by the utility provider chosen by Landlord and
billed to Tenant at such utility provider's then current
rates.
6.03 ADDITIONAL AND AFTER-HOUR SERVICES
At Tenant's request, Landlord shall furnish additional quantities of any of the
services or utilities specified in Section 6.01, if Landlord can reasonably do
so, on the terms set forth herein. Tenant shall deliver to Landlord a written
request for such additional services or utilities prior to 2:00 P.M. on Monday
through Friday (except National Holidays) for service on those days, and prior
to 2:00 P.M. on the last business day prior to Saturday, Sunday or a National
Holiday. For services or utilities requested by Tenant and furnished by
Landlord, Tenant shall pay to Landlord as a charge therefor Landlord's
prevailing rates for such services and utilities. If Tenant shall fail to make
any such payment, Landlord may, upon notice to Tenant and in addition to
Landlord's other remedies under this Lease, discontinue any or all of such
additional services.
6.04 TELEPHONE SERVICES
All telegraph, telephone, and electric connections which Tenant may desire shall
be first approved by Landlord in writing, before the same are installed, and the
location of all wires and the work in connection therewith shall be performed by
contractors approved by Landlord and shall be subject to the direction of
Landlord. Landlord reserves the right to designate and control the entity or
entities providing telephone or other communication cable installation, repair
and maintenance in the Building and to restrict and control access to telephone
cabinets. In the event Landlord designates a particular vendor or vendors to
provide such cable installation, repair and maintenance for the Building, Tenant
agrees to abide by and participate in such program. Tenant shall be responsible
for and shall pay all costs incurred in connection with the installation of
telephone cables and related wiring in the Premises, including, without
limitation, any hook-up, access and maintenance fees related to the installation
of such wires and cables in the Premises and the commencement of service
therein, and the maintenance thereafter of such wire and cables; and there shall
be included in Operating Expenses for the Building all installation, hook-up or
maintenance costs incurred by Landlord in connection with telephone cables and
related wiring in the Building which are not allocable to any individual users
of such service but are allocable to the Building generally. If Tenant fails to
maintain all telephone cables and related wiring in the Premises and such
failure affects or interferes with the operation or maintenance of any other
telephone cables or related wiring in the Building, landlord or any vendor hired
by Landlord may enter into and upon the Premises forthwith and perform such
repairs, restorations or alterations as Landlord deems necessary in order to
eliminate any such interference (and Landlord may recover from Tenant all of
Landlord's costs in connection therewith). Upon the Termination Date, Tenant
agrees to remove all telephone cables and related wiring installed by Tenant for
and during Tenant's occupancy, which Landlord shall request Tenant to remove.
Tenant agrees that neither Landlord nor any of its agents or employees shall be
liable to Tenant, or any of Tenant's employees, agents, customers or invitees or
anyone claiming through, by or under Tenant, for any damages, injuries, losses,
expenses, claims or causes of action because of any interruption, diminution,
delay or discontinuance at any time for any reason in the furnishing of any
telephone service to the Premises and the Building.
6.05 DELAYS IN FURNISHING SERVICES
Tenant agrees that landlord shall not be in breach of this Lease nor be liable
to Tenant for damages or otherwise, for any failure to furnish, or a delay in
furnishing, or a change in the quantity or character of any service when such
failure, delay or change is occasioned, in whole or in part, by
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repairs, improvements or mechanical breakdowns by the act or default of Tenant
or other parties or by an event of Force Majeure. No such failure, delay or
change shall be deemed to be an eviction or disturbance of Tenant's use and
possession of the Premises, or relieve Tenant from paying Rent or from
performing any other obligations of Tenant under this Lease, without any
deduction or offset. Failure to any extent to make available, or any slowdown,
stoppage, or interruption of, the specified utility services resulting from any
cause, including, without limitation, changes in service provider or Landlord's
compliance with any voluntary or similar governmental or business guidelines now
or hereafter published or any requirements now or hereafter established by any
governmental agency, board, or bureau having jurisdiction over the operation of
the Building shall not render Landlord liable in any respect for damages to
either persons, property, or business, nor be construed as an eviction of Tenant
or work an abatement of Rent, nor relieve Tenant of Tenant's obligations for
fulfillment of any covenant or agreement hereof. Should any equipment or
machinery furnished, by Landlord break down or for any cause cease to function
properly, landlord shall use reasonable diligence to repair same promptly, but
Tenant shall have no claim for abatement of Rent or damages on account of any
interruption of service occasioned thereby or resulting therefrom.
6.06 CHOICE OF SERVICE PROVIDER
Tenant acknowledges that Landlord may, at Landlord's sole option, to the extent
permitted by applicable law, elect to change, from time to time, the company or
companies which provide services (including, without limitation, electrical
service, gas service, water and technical services) to the Building, the
Premises and/or its occupants. Landlord shall endeavor to give Tenant not less
than thirty (30) days notice of any scheduled change. Notwithstanding anything
to the contrary set forth in this Lease, Tenant acknowledges that Landlord has
not and does not make any representations or warranties concerning the identity
or identities of the company or companies which provide services to the Building
and the Premises or its occupants and Tenant acknowledges that the choice of
service providers and matters concerning the engagement and termination thereof
shall be solely that of Landlord. The foregoing provision is not intended to
modify, amend, change or otherwise derogate any provision of this Lease
concerning the nature or type of service to be provided or any specific
information concerning the amount thereof to be provided. Tenant agrees to
cooperate with Landlord and each of its service providers in connection with any
change in service or provider.
ARTICLE SEVEN
POSSESSION, USE AND CONDITION OF PREMISES
7.01 POSSESSION AND USE OF PREMISES
(a) Tenant shall be entitled to possession of the Premises
when the Landlord Work is Substantially Complete. Tenant shall
occupy and use the Premises only for the uses specified in
Section 1.01(14) to conduct Tenant's business. Tenant shall
not occupy or use the Premises (or permit the use or occupancy
of the Premises) for any purpose or in any manner which: (1)
is unlawful or in violation of any Law or Environmental law,
(2) may be dangerous to persons or property or which may
increase the cost of, or invalidate, any policy of insurance
carried on the Building or covering its operations; (3) is
contrary to or prohibited by the terms and conditions of this
Lease or the rules of the Building set forth in Article
Eighteen; or (4) would tend to create or continue a nuisance.
(b) Tenant and Landlord shall each comply with all Environmental
Laws concerning the proper storage, handling and disposal of
any Hazardous Material with respect to the Property. Tenant
shall not generate, store, handle or dispose of any Hazardous
Material in, on, or about the Property without the prior
written consent of Landlord. In the event that Tenant is
notified of any investigation or violation of any
Environmental Law arising from Tenant's activities at the
Premises, Tenant shall immediately deliver to Landlord a copy
of such notice. In such event or in the event Landlord
reasonably believes that a violation of Environmental Law
exists, Landlord may conduct such tests and studies relating
to compliance by Tenant with Environmental Laws or the alleged
presence of Hazardous Materials upon the Premises as Landlord
deems desirable, all of which shall be completed at Tenant's
expense. Landlord's inspection and testing rights are for
Landlord's own protection only, and Landlord has not, and
shall not be deemed to have assumed any responsibility to
Tenant or any other party for compliance with Environmental
Laws, as a result of the exercise, or non-exercise of such
rights. Tenant shall indemnify, defend, protect and hold
harmless the Indemnitees from any and all loss, claim,
expense, liability and cost (including attorney's fees)
arising out of or in any way related to the presence of any
Hazardous Material introduced to the Premises during the Lease
Term by any party other than Landlord. If any Hazardous
Material is released, discharged or disposed of on or about
the Property and such release, discharge or disposal is not
caused by Tenant or other occupants of the Premises, or their
employees, agents or contractors, such release, discharge or
disposal shall be deemed casualty damage under Article
Fourteen to the extent that the Premises are affected thereby;
in such case, Landlord and Tenant shall have the obligations
and rights respecting such casualty damage provided under such
Article.
(c) Landlord and Tenant acknowledge that the Americans With
Disabilities Act of 1990 (42 ▇.▇.▇ ▇▇.▇▇▇▇▇ et seq.) and
regulations and guidelines promulgated thereunder, as all of
the same may be amended and supplemented from time to time
(collectively referred to herein as the "ADA") establish
requirements for business operations, accessibility and
barrier removal, and that such requirements may or may not
apply to the Premises and the Property depending on, among
other things: (1) whether Tenant's business is deemed a
"public accommodation" or "commercial facility", (2) whether
such requirements are "readily achievable", and (3) whether a
given alteration affects a "primary function area" or triggers
"path of travel" requirements. The parties hereby agree that:
(a) Landlord shall be responsible for ADA Title III compliance
in the Common Areas, except as provided below, (b) Tenant
shall be responsible for ADA Title III compliance in the
Premises, including any leasehold improvements or other work
to be performed in the Premises under or in connection with
this Lease, (c) Landlord may perform, or require that Tenant
perform, and Tenant shall be responsible for the cost of, ADA
Title III "path of travel" requirements triggered by
alterations in the Premises, and (d) Landlord may perform, or
require Tenant to perform, and Tenant shall be responsible
for the cost of, ADA Title III compliance in the Common Areas
necessitated by the Building being deemed to be a "public
accommodation" instead of a "commercial facility" as a result
of Tenant's use of the Premises. Tenant shall be solely
responsible for requirements under Title I of the ADA relating
to Tenant's employees.
7.02 LANDLORD ACCESS TO PREMISES; APPROVALS
(a) Tenant shall permit Landlord to erect, use and maintain pipes,
ducts, wiring and conduits in and through the Premises, so
long as Tenant's use, layout or design of the Premises is not
materially affected or altered. Landlord or Landlord's agents
shall have the right to enter upon the Premises in the event
of an emergency, or to inspect the Premises, to perform
janitorial and other services, to conduct safety and other
testing in the Premises and to make such repairs, alterations,
improvements or additions to the Premises or the Building or
other parts of the Property as Landlord may deem necessary or
desirable (including, without limitation, all alterations,
improvements and additions in connection with a change in
service provider or providers). Janitorial and cleaning
services shall be performed after normal business hours. Any
entry or work by Landlord may be during normal
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business hours and Landlord may use reasonable efforts to
ensure that any entry or work shall I not materially interfere
with Tenant's occupancy of the Premises.
(b) If Tenant shall not be personally present to permit an entry
into the Premises when for any reason an entry therein shall
be necessary or permissible, Landlord (or Landlord's agents),
after attempting to notify Tenant (unless Landlord believes an
emergency situation exists), may enter the Premises without
rendering Landlord or its agents liable therefor (if during
such entry Landlord or Landlord's agent shall accord
reasonable care to Tenant's property), and without relieving
Tenant of any obligations under this Lease.
(c) Landlord may enter the Premises for the purpose of conducting
such inspections, tests and studies as Landlord may deem
desirable or necessary to confirm Tenant's compliance with all
Laws and Environmental Laws or for other purposes necessary in
Landlord's reasonable judgment to ensure the sound condition
of the Property and the systems serving the Property.
Landlord's rights under this Section 7.02(c) are for
Landlord's own protection only, and Landlord has not, and
shall not be deemed to have assumed any responsibility to
Tenant or any other party as a result of the exercise or
non-exercise of such rights, for compliance with Laws or
Environmental Laws.
(d) Landlord may do any of the foregoing, or undertake any of the
inspection or work described in the preceding paragraphs
without such action constituting an actual or constructive
eviction of Tenant, in whole or in part, or giving rise to an
abatement of Rent by reason of loss or interruption of
business of the Tenant, or otherwise.
7.03 QUIET ENJOYMENT
Landlord covenants that so long as Tenant is in compliance with the covenants
and conditions set forth in this Lease, Tenant shall have the right to quiet
enjoyment of the Premises without hindrance or interference from Landlord or
those claiming through Landlord, and subject to the rights of any Mortgagee or
ground lessor.
ARTICLE EIGHT
MAINTENANCE
8.01 LANDLORD'S MAINTENANCE
Subject to the provisions of Article Fourteen, Landlord shall maintain and make
necessary repairs to the foundations, roofs, exterior walls, and the structural
elements of the Building, the electrical, plumbing, heating, ventilating, and
air-conditioning, mechanical, communication, security and the fire and life
safety systems of the Building and those corridors, washrooms and lobbies which
are Common Areas of the Building, except that: (a) Landlord shall not be
responsible for the maintenance or repair of any floor or wall coverings in the
Premises or any of such systems which are located within the Premises and are
supplemental or special to the Building's standard systems; and (b) the cost of
performing any of said maintenance or repairs whether to the Premises or to the
Building caused by the negligence of Tenant, its employees' agents, servants,
licensees, subtenants, contractors or invitees, shall be paid by Tenant, subject
to the waivers set forth in Section 16.04. Landlord shall not be liable to
Tenant for any expense, injury, loss or damage resulting from work done in or
upon, or in connection with the use of, any adjacent or nearby building, land,
street or alley.
8.02 TENANT'S MAINTENANCE
Subject to the provisions of Article Fourteen, Tenant, at its expense, shall
keep and maintain the Premises and all Tenant Additions in good order, condition
and repair and in accordance with all Laws and Environmental Laws. Tenant shall
not permit waste and shall promptly and adequately repair all damages to the
Premises and replace or repair all damaged or broken glass in the interior of
the Premises, fixtures or appurtenances. Any repairs or maintenance shall be
completed with materials of similar quality to the original materials, all such
work to be completed under the supervision of Landlord. Any such repairs or
maintenance shall be performed only by contractors or mechanics approved by
Landlord, which approval shall not be unreasonably withheld, and whose work will
not cause or threaten to cause disharmony or interference with Landlord or other
tenants in the Building and their respective agents and contractors performing
work in or about the Building. If Tenant fails to perform any of its obligations
set forth in this Section 8.02, Landlord may, in its sole discretion and upon 24
hours prior notice to Tenant (except without notice in the case of emergencies),
perform the same, and Tenant shall pay to Landlord any costs or expenses
incurred by Landlord upon demand.
ARTICLE NINE
ALTERATIONS AND IMPROVEMENTS
9.01 TENANT'S ALTERATIONS
(a) Except for completion of Tenant Work undertaken by Tenant
pursuant to the Workletter, the following provisions shall
apply to the completion of any Tenant Alterations:
(1) Tenant shall not, except as provided herein, without
the prior written consent of Landlord, which consent
shall not be unreasonably withheld, make or cause to
be made any Tenant Alterations in or to the Premises
or any Property systems serving the Premises. Prior
to making any Tenant Alterations, Tenant shall give
Landlord ten (10) days prior written notice (or such
earlier notice as would be necessary pursuant to
applicable Law) to permit Landlord sufficient time to
post appropriate notices of non-responsibility.
Subject to all other requirements of this Article
Nine, Tenant may undertake Decoration work without
Landlord's prior written consent. Tenant shall
furnish Landlord with the names and addresses of all
contractors and subcontractors and copies of all
contracts. All Tenant Alterations shall be completed
at such time and in such manner as Landlord may from
time to time designate, and only by contractors or
mechanics approved by Landlord, which approval shall
not be unreasonably withheld, and whose work will not
cause or threaten to cause disharmony or interference
with Landlord or other tenants in the Building and
their respective agents and contractors performing
work in or about the Building. Landlord may further
condition its consent upon Tenant furnishing to
Landlord and Landlord approving prior to the
commencement of any work or delivery of materials to
the Premises related to the Tenant Alterations such
of the following as specified by Landlord:
architectural plans and specifications, opinions from
engineers reasonably acceptable to Landlord stating
that the Tenant Alterations will not in any way
adversely affect the Building's systems, including,
without limitation, the
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mechanical, heating, plumbing, security, ventilating,
air-conditioning, electrical, and the fire and life
safety systems in the Building, necessary permits
arid licenses, certificates of insurance, and such
other documents in such form reasonably requested by
Landlord. Landlord may, in the exercise of reasonable
judgment, request that Tenant provide Landlord with
appropriate evidence of Tenant's ability to complete
and pay for the completion of the Tenant Alterations
such as a performance bond or letter of credit. Upon
completion of the Tenant Alterations, Tenant shall
deliver to Landlord an as-built mylar and digitized
(if available) set of plans and specifications for
the Tenant Alterations.
(2) Tenant shall pay the cost of all Tenant Alterations
and the cost of decorating the Premises and any work
to the Property occasioned thereby. In connection
with completion of any Tenant Alterations, Tenant
shall pay Landlord a construction fee and all
elevator and hoisting charges at Landlord's then
standard rate. Upon completion of Tenant Alterations,
Tenant shall furnish Landlord with contractors'
affidavits and full and final waivers of lien and
receipted bills covering all labor and materials
expended and used in connection therewith and such
other documentation reasonably requested by Landlord
or Mortgagee.
(3) Tenant agrees to complete all Tenant Alterations (i)
in accordance with all Laws, Environmental Laws, all
requirements of applicable insurance companies and in
accordance with Landlord's standard construction
rules and regulations, and (ii) in a good and
workmanlike manner with the use of good grades of
materials. Tenant shall notify Landlord immediately
if Tenant receives any notice of violation of any Law
in connection with completion of any Tenant
Alterations and shall immediately take such steps as
are necessary to remedy such violation. In no event
shall such supervision or right to supervise by
Landlord nor shall any approvals given by Landlord
under this Lease constitute any warranty by Landlord
to Tenant of the adequacy of the design, workmanship
or quality of such work or materials for Tenant's
intended use or of compliance with the requirements
of Section 9.01(a)(3)(i) and (ii) above or impose any
liability upon Landlord in connection with the
performance of such work.
(b) All Tenant Additions whether installed by Landlord or Tenant,
shall without compensation or credit to Tenant, become part of
the Premises and the property of Landlord at the time of their
installation and shall remain in the Premises, unless pursuant
to Article Twelve, Tenant may remove them or is required to
remove them at Landlord's request.
9.02 LIENS
Tenant shall not permit any lien or claim for lien of any mechanic, laborer or
supplier or any other lien to be filed against the Building, the Land, the
Premises, or any other part of the Property arising out of work performed, or
alleged to have been performed by, or at the direction of, or on behalf of
Tenant. If any such lien or claim for lien is filed, Tenant shall within ten
(10) days of receiving notice of such lien or claim (a) have such lien or
claim for lien released of record or (b) deliver to Landlord a bond in form,
content, amount, and issued by surety, satisfactory to Landlord, indemnifying,
protecting, defending and holding harmless the Indemnitees against all costs and
liabilities resulting from such lien or claim for lien and the foreclosure or
attempted foreclosure thereof If Tenant fails to take any of the above actions,
Landlord, in addition to its rights and remedies under Article Eleven, without
investigating the validity of such lien or claim for lien, may pay or discharge
the same and Tenant shall, as payment of additional Rent hereunder, reimburse
Landlord upon demand for the amount so paid by Landlord, including Landlord's
expenses and attorneys' fees.
ARTICLE TEN
ASSIGNMENT AND SUBLETTING
10.01 ASSIGNMENT AND SUBLETTING
(a) Without the prior written consent of Landlord, Tenant may not
sublease, assign, mortgage, pledge, hypothecate or otherwise
transfer or permit the transfer of this Lease or the
encumbering of Tenant's interest therein in whole or in part,
by operation of law or otherwise or permit the use or
occupancy of the Premises, or any part thereof, by anyone
other than Tenant. If Tenant desires to enter into any
sublease of the Premises or assignment of this Lease, Tenant
shall deliver written notice thereof to Landlord ("Tenant's
Notice"), together with the identity of the proposed subtenant
or assignee and the proposed principal terms thereof and
financial and other information sufficient for Landlord to
make an informed judgment with respect to such proposed
subtenant or assignee at least sixty (60) days prior to the
commencement date of the term of the proposed sublease or
assignment. If Tenant proposes to sublease less than all of
the Rentable Area of the Premises, the space proposed to be
sublet and the space retained by Tenant must each be a
marketable unit as reasonably determined by Landlord and
otherwise in compliance with all Laws. Landlord shall notify
Tenant in writing of its approval or disapproval of the
proposed sublease or assignment or its decision to exercise
its rights under Section 10.02 within thirty (30) days after
receipt of Tenant's Notice (and all required information). In
no event may Tenant sublease any portion of the Premises or
assign the Lease to any other tenant of the Building. Tenant
shall submit for Landlord's approval (which approval shall not
be unreasonably withheld) any advertising which Tenant or its
agents intend to use with respect to the space proposed to be
sublet.
(b) With respect to Landlord's consent to an assignment or
sublease, Landlord may take into consideration any factors
which Landlord may deem relevant, and the reasons for which
Landlord's denial shall be deemed to be reasonable shall
include, without limitation, the following:
(i) the business reputation or creditworthiness of any
proposed assignee is not acceptable to Landlord; or
(ii) in Landlord's reasonable judgment the proposed
assignee or sublessee would diminish the value or
reputation of the Building or Landlord; or
(iii) any proposed assignee's or sublessee's use of the
Premises would violate Section 7.01 of the Lease or
would violate the provisions of any other leases of
tenants in the Building;
(iv) the proposed assignee or sublessee is either a
governments agency, a school or similar operation,
or a medical related practice; or
(v) the proposed sublessee or assignee is a bona fide
prospective tenant of Landlord in the Building as
demonstrated by a written proposal dated within
ninety (90) days prior to the date of Tenant's
request; or
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(vi) the proposed sublessee or assignee would materially
increase the estimated pedestrian and vehicular
traffic to and from the Premises and the Building.
In no event shall Landlord be obligated to consider a consent
to any proposed (i) sublease of the Premises or assignment of
the Lease if a Default then exists under the Lease, or a fact
or condition exists, which but for the giving of notice or the
passage of time would constitute a Default, or (ii) assignment
of the Lease which would assign less than the entire Premises.
In the event Landlord wrongfully withholds its consent to any
proposed sublease of the Premises or assignment of the Lease,
Tenant's sole and exclusive remedy therefor shall be to seek
specific performance of Landlord's obligations to consent to
such sublease or assignment.
(c) If Landlord chooses not to recapture the space proposed to be
subleased or assigned as provided in Section 10.02, Landlord
shall not unreasonably withhold its consent to a subletting or
assignment under this Section 10.01. Any approved sublease or
assignment shall be expressly subject to the terms and
conditions of this Lease. Any such subtenant or assignee shall
execute such documents as Landlord may reasonably require to
evidence such subtenant or assignee's assumption of such
obligations and liabilities. Tenant shall deliver to Landlord
a copy of all agreements executed by Tenant and the proposed
subtenant and assignee with respect to the Premises.
Landlord's approval of a sublease or assignment shall not
constitute a waiver of Tenant's obligation to obtain
Landlord's consent to further assignments or subleases.
(d) For purposes of this Article Ten, an assignment shall be
deemed to include a change in the majority control of Tenant,
resulting from any transfer, sale or assignment of shares of
stock of Tenant occurring by operation of law or otherwise if
Tenant is a corporation whose shares of stock are not traded
publicly. If Tenant is a partnership, any change in the
partners of Tenant shall be deemed to be an assignment.
(e) Notwithstanding anything to the contrary contained in this
Article Ten, Tenant shall have the right, without the prior
written consent of Landlord, to sublease the Premises to an
Affiliate or to assign this Lease to an Affiliate, but (i) no
later than fifteen (15) days prior to the effective date of
the assignment or sublease, the assignee or sublessee shall
execute documents satisfactory to Landlord to evidence such
subtenant or assignee's assumption of the obligations and
liabilities of Tenant under this Lease, except in the case of
any assignment which occurs by operation of law (and without a
written assignment) as a consequence of merger, consolidation
or non-bankruptcy reorganization; (ii) within ten (10) days
after the effective date of such assignee or sublease, give
notice to Landlord which notice shall include the full name
and address of the assignee or subtenant, and a copy of all
agreements executed between Tenant and the assignee or
subtenant with respect to the Premises; and (iii) within
fifteen (15) days after Landlord's request, such documents or
information which Landlord reasonably requests for the purpose
of substantiating whether or not the assignment or sublease is
to an Affiliate.
10.02 RECAPTURE
Except as provided in Section 10.01(e) Landlord shall have the option to exclude
from the Premises covered by this Lease ("recapture"), the space proposed to be
sublet or subject to the assignment, effective as of the proposed commencement
date of such sublease or assignment. If Landlord elects to recapture, Tenant
shall surrender possession of the space proposed to be subleased or subject to
the assignment to Landlord on the effective date of recapture of such space from
the Premises such date being the Termination Date for such space. Effective as
of the date of recapture of any portion of the Premises pursuant to this
section, the Monthly Base Rent, Rentable Area of the Premises and Tenant's Share
shall be adjusted accordingly.
10.03 EXCESS RENT
Tenant shall pay Landlord on the first day of each month during the term of the
sublease or assignment, one hundred (100%) of the amount by which the sum of
all rent and other consideration (direct or indirect) due from the subtenant or
assignee for such month exceeds: (i) that portion of the Monthly Base Rent and
Rent Adjustments due under this Lease for said month which is allocable to the
space sublet or assigned.
10.04 TENANT LIABILITY
In the event of any sublease or assignment, whether or not with Landlord's
consent, Tenant shall not be released or discharged from any liability, whether
past, present or future, under this Lease, including any liability arising from
the exercise of any renewal or expansion option, to the extent expressly
permitted by Landlord. Tenant's liability shall remain primary, and in the event
of default by any subtenant, assignee or successor of Tenant in performance or
observance of any of the covenants or conditions of this Lease, Landlord may
proceed directly against Tenant without the necessity of exhausting remedies
against said subtenant, assignee or successor. If Landlord grants consent to
such sublease or assignment, Tenant shall pay all reasonable attorneys' fees and
expenses incurred by Landlord with respect to such assignment or sublease. In
addition, if Tenant has any options to extend the term of this Lease or to add
other space to the Premises, such options shall not be available to any
subtenant or assignee, directly or indirectly without Landlord's express written
consent, which may be withheld in Landlord's sole discretion.
10.05 ASSUMPTION AND ATTORNMENT
If Tenant shall assign this Lease as permitted herein, the assignee shall
expressly assume all of the obligations of Tenant hereunder in a written
instrument satisfactory to Landlord and furnished to Landlord not later than
fifteen (15) days prior to the effective date of the assignment. If Tenant shall
sublease the Premises as permitted herein, Tenant shall, at Landlord's option,
within fifteen (15) days following any request by Landlord, obtain and furnish
to Landlord the written agreement of such subtenant to the effect that the
subtenant will attorn to Landlord and will pay all subrent directly to Landlord.
ARTICLE ELEVEN
DEFAULT AND REMEDIES
11.01 EVENTS OF DEFAULT
The occurrence or existence of any one or more of the following shall constitute
a "Default" by Tenant under this Lease:
(i) Tenant fails to pay any installment or other payment of Rent
including Rent Adjustment Deposits or Rent Adjustments within
three (3) days after the date when due,
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(ii) Tenant fails to observe or perform any of the other covenants,
conditions or provisions of this Lease or the Workletter and
fails to cure such default within fifteen (15) days after
written notice thereof to Tenant (unless the default involves
a hazardous condition, which shall be cured forthwith, or
unless the failure to perform is a Default for which this
Lease specifies there is no cure or grace period);
(iii) the interest of Tenant in this Lease is levied upon under
execution or other legal process;
(iv) a petition is filed by or against Tenant to declare Tenant
bankrupt or seeking a plan of reorganization or arrangement
under any Chapter of the Bankruptcy Act, or any amendment,
replacement or substitution therefor, or to delay payment of,
reduce or modify Tenant's debts, which in the case of an
involuntary action is not discharged within thirty (30) days;
(v) Tenant is declared insolvent by law or any assignment of
Tenant's property is made for the benefit of creditors;
(vi) a receiver is appointed for Tenant or Tenant's property, which
appointment is not discharged within thirty (30) days;
(vii) any action taken by or against Tenant to reorganize or modify
Tenant's capital structure in a materially adverse way which
in the case of an involuntary action is not discharged within
thirty (30) days;
(viii) upon the dissolution of Tenant; or
(ix) upon the third occurrence within any Lease Year that Tenant
fails to pay Rent when due or has breached a particular
covenant of this Lease (whether or not such failure or breach
is thereafter cured within any stated cure or grace period or
statutory period).
11.02 LANDLORD'S REMEDIES
(a) If a Default occurs, Landlord shall have the rights and
remedies hereinafter set forth, which shall be distinct and
cumulative: (i) Landlord may terminate this Lease by giving
Tenant notice of Landlord's election to do so, in which event,
the term of this Lease shall end and all of Tenants rights and
interests shall expire on the date stated in such notice; (ii)
Landlord may terminate Tenant's right of possession of the
Premises without terminating this Lease by giving notice to
Tenant that Tenant's right of possession shall end on the date
specified in such notice; or (iii) Landlord may enforce the
provisions of this Lease and may enforce and protect the
rights of the Landlord hereunder by a suit or suits in equity
or at law for the specific performance of any covenant or
agreement contained herein, or for the enforcement of any
other appropriate legal or equitable remedy, including
recovery of all monies due or to become due for the balance of
the Term from Tenant under any of the provisions of this
Lease.
(b) In the event that Landlord terminates the Lease, Landlord
shall be entitled to recover as damages for loss of the
bargain and not as a penalty, Rent for the balance of the
Term, plus all Landlord's expenses of reletting, including
without limitation, repairs, alterations, improvements,
additions, decorations, legal fees and brokerage commissions
(collectively, the "Reletting Expenses").
(c) In the event Landlord proceeds pursuant to subparagraph (a)
(ii) above, Landlord may, but shall not be obligated to
(except as may be required by law), relet the Premises, or any
part thereof for the account, of Tenant, for such rent and
term and upon such terms and conditions as are reasonably
acceptable to Landlord. For purposes of such reletting,
Landlord is authorized to decorate, repair, alter and improve
the Premises to the extent reasonably necessary or desirable.
If the Premises are relet and the consideration realized
therefrom after payment of all Landlord's Reletting Expenses,
is insufficient to satisfy the payment when due of Rent
reserved under this Lease for any monthly period, then Tenant
shall pay Landlord upon demand any such deficiency monthly. If
such consideration is greater than the amount necessary to pay
the full amount of the Rent, the full amount of such excess
shall be retained by Landlord and shall in no event be payable
to Tenant. Tenant agrees that Landlord may file suit to
recover any sums due to Landlord hereunder from time to time
and that such suit or recovery of any amount due Landlord
hereunder shall not be any defense to any subsequent action
brought for any amount not therefore reduced to judgment in
favor of Landlord.
(d) In the event a Default occurs, Landlord may, at Landlord's
option, enter into the Premises, remove Tenants property,
fixtures, furnishings, signs and other evidences of tenancy,
and take and hold such property, provided, however, that such
entry and possession shall not terminate this Lease or release
Tenant, in whole or in part, from Tenant's obligation to pay
the Rent reserved hereunder for the full Term or from any
other obligation of Tenant under this Lease. Any and all
property which may be removed from the Premises by Landlord
pursuant to the authority of the Lease or law, to which Tenant
is or may be entitled, may be handled, removed or stored by
Landlord at the risk, cost and expense of Tenant, and Landlord
shall in no event be responsible for the value, preservation
or safekeeping thereof. Tenant shall pay Landlord, upon
demand, any and all expenses incurred in such removal and all
storage charges against such property so long as the same
shall be in the Landlord's possession or under the Landlord's
control. Any such property of Tenant not retaken from storage
by Tenant within thirty (30) days after the Termination Date,
shall be conclusively presumed to have been conveyed by Tenant
to Landlord under this Lease as a ▇▇▇▇ of sale without farther
payment or credit by Landlord to Tenant.
11.03 ATTORNEY'S FEES
Tenant shall pay upon demand, all costs and expenses, including reasonable
attorneys' fees, incurred by Landlord in enforcing the Tenant's performance of
its obligations under this Lease, or resulting from Tenant's Default, or
incurred by Landlord in any litigation, negotiation or transaction in which
Tenant causes Landlord, without Landlord's fault, to become involved or
concerned.
11.04 BANKRUPTCY
The following provisions shall apply in the event of the bankruptcy or
insolvency of Tenant:
(a) In connection with any proceeding under Chapter 7 of the
Bankruptcy Code where the trustee of Tenant elects to assume
this Lease for the purposes of assigning it, such election or
assignment, may only be made upon compliance with the
provisions of (b) and (c) below, which conditions Landlord and
Tenant acknowledge to be commercially reasonable. In the event
the trustee elects to reject this Lease then Landlord shall
immediately be entitled to possession of the Premises without
further obligation to Tenant or the trustee.
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(b) Any election to assume this Lease under Chapter 11 or 13 of
the Bankruptcy Code by Tenant as debtor-in-possession or by
Tenant's trustee (the "Electing Party") must provide for:
The Electing Party to cure or provide to Landlord adequate
assurance that it will cure all monetary defaults under this
Lease within fifteen (15) days from the date of assumption and
it will cure all nonmonetary defaults under this Lease
within thirty (30) days from the date of assumption. Landlord
and Tenant acknowledges such condition to be commercially
reasonable.
(c) If the Electing Party has assumed this Lease or elects to
assign Tenant's interest under this Lease to any other person,
such interest may be assigned only if the intended assignee
has provided adequate assurance of future performance (as
herein defined), of all of the obligations imposed on Tenant
under this Lease.
For the purposes hereof, "adequate assurance of future
performance" means that Landlord has ascertained that each of
the following conditions has been satisfied:
(i) The assignee has submitted a current financial
statement, certified by its chief financial officer,
which shows a net worth and working capital in
amounts sufficient to assure the future performance
by the assignee of Tenant's obligations under this
Lease; and
(ii) Landlord has obtained consents or waivers from any
third parties which may be required under a Lease,
mortgage, financing arrangement, or other agreement
by which Landlord is bound, to enable Landlord to
permit such assignment.
(d) Landlord's acceptance of rent or any other payment from any
trustee, receiver, assignee, person, or other entity will not
be deemed to have waived, or waive, the requirement of
Landlord's consent, Landlord's right to terminate this Lease
for any transfer of Tenant's interest under this Lease without
such consent, or Landlord's claim for any amount of Rent due
from Tenant.
11.05 LANDLORD'S DEFAULT
Landlord shall be in default hereunder in the event Landlord has not begun and
pursued with reasonable diligence the cure of any failure of Landlord to meet
its obligations hereunder within thirty (30) days of the receipt by Landlord of
written notice from Tenant of the alleged failure to perform. In no event shall
Tenant have the right to terminate or rescind this Lease as a result of
Landlord's default as to any covenant or agreement contained in this Lease.
Tenant hereby waives such remedies of termination and rescission and hereby
agrees that Tenant's remedies for default hereunder and for breach of any
promise or inducement shall be limited to a suit for damages and/or injunction.
In addition, Tenant hereby covenants that, prior to the exercise of any such
remedies, it will give the mortgagees holding mortgages on the Building notice
and a reasonable time to cure any default by Landlord.
ARTICLE TWELVE
SURRENDER OF PREMISES
12.01 IN GENERAL
Upon the Termination Date, Tenant shall surrender and vacate the Premises
immediately and deliver possession thereof to Landlord in a clean, good and
tenantable condition, ordinary wear and tear, and damage caused by Landlord
excepted. Tenant shall deliver to Landlord all keys to the Premises. Tenant
shall remove from the Premises all movable personal property of Tenant and
Tenant's trade fixtures, including, subject to Section 6.04, cabling for any of
the foregoing. Tenant shall be entitled to remove such Tenant Additions which at
the time of their installation Landlord and Tenant agreed may be removed by
Tenant. Tenant shall also remove such other Tenant Additions as required by
Landlord, including, any Tenant Additions containing Hazardous Materials.
Tenant immediately shall repair all damage resulting from removal of any of
Tenant's property, furnishings or Tenant Additions, shall close all floor,
ceiling and roof openings and shall restore the Premises to a tenantable
condition as reasonably determined by Landlord. If any of the Tenant Additions
which were installed by Tenant involved the lowering of ceilings, raising of
floors or the installation of specialized wall or floor coverings or lights,
then Tenant shall also be obligated to return such surfaces to their condition
prior to the commencement of this Lease. Tenant shall also be required to close
any staircases or other openings between floors. In the event possession of the
Premises is not delivered to Landlord when required hereunder, or if Tenant
shall fail to remove those items described above, Landlord may, (but shall not
be obligated to), at Tenant's expense, remove any of such property and store,
sell or otherwise deal with such property as provided in Section 11.02(b),
including the waiver and indemnity obligations provided in that Section, and
undertake, at Tenant's expense, such restoration work as Landlord deems
necessary or advisable.
12.02 LANDLORD'S RIGHTS
All property which may be removed from the Premises by Landlord shall be
conclusively presumed to have been abandoned by Tenant and Landlord may deal
with such property as provided in Section 11.02(d). Tenant shall also reimburse
Landlord for all costs and expenses incurred by Landlord in removing any of
Tenant Additions and in restoring the Premises to the condition required by this
Lease at the Termination Date.
ARTICLE THIRTEEN
HOLDING OVER
Tenant shall pay Landlord the greater of (i) double the monthly Rent payable for
the month immediately preceding the holding over (including increases for Rent
Adjustments which Landlord may reasonably estimate) or, (ii) double the fair
market rental value of the Premises as reasonably determined by Landlord for
each month or portion thereof that Tenant retains possession of the Premises, or
any portion thereof, after the Termination Date (without reduction for any
partial month that Tenant retains possession). Tenant shall also pay all damages
sustained by Landlord by reason of such retention of possession. The provisions
of this Article shall not constitute a waiver by Landlord of any re-entry rights
of Landlord and Tenant's continued occupancy of the Premises shall be as a
tenancy in sufferance. If Tenant retains possession of the Premises, or any part
thereof for thirty (30) days after the Termination Date then at the sole option
of Landlord expressed by written notice to Tenant, but not otherwise, such
holding over shall constitute a renewal of this Lease for a period of one (1)
year on the same terms and conditions (including those with respect to the
payment of Rent) as provided in this Lease, except that the Monthly Base Rent
for such period shall be equal to the greater of(i) 200% of the
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Monthly Base Rent payable during the month preceding the Termination Date, or
(ii) 200% of the monthly base rent then being quoted by Landlord for similar
space in the Building.
ARTICLE FOURTEEN
DAMAGE BY FIRE OR OTHER CASUALTY
14.01 SUBSTANTIAL UNTENABILITY
(a) If any fire or other casualty (whether insured or uninsured))
renders all or a substantial portion of the Premises or the
Building untenantable, Landlord shall, with reasonable
promptness after the occurrence of such damage, estimate the
length of time that will be required to Substantially Complete
the repair and restoration and shall by notice advise Tenant
of such estimate ("Landlords Notice"), If Landlord estimates
that the amount of time required to Substantially Complete
such repair and restoration will exceed one hundred eighty
(180) days from the date such damage occurred, then Landlord,
or Tenant if all or a substantial portion of the Premises is
rendered untenantable, shall have the right to terminate the
Lease as of the date of such damage upon giving written notice
to the other at any time within twenty (20) days after
delivery of Landlord's Notice, provided that if Landlord so
chooses, Landlord's Notice may also constitute such notice of
termination.
(b) Unless this Lease is terminated as provided in the preceding
subparagraph, Landlord shall proceed with reasonable
promptness to repair and restore the Premises to its condition
as existed prior to such casualty, subject to reasonable
delays for insurance, adjustments and Force Majeure delays,
and also subject to zoning laws and building codes then in
effect. Landlord shall have no liability to Tenant, and Tenant
shall not be entitled to terminate this Lease if such repairs
and restoration are not in fact completed with the time period
estimated by Landlord so long as Landlord shall proceed with
reasonable diligence to complete such repairs and restoration.
(c) Tenant acknowledges that Landlord shall be entitled to the
full proceeds of any insurance coverage, whether carried by
Landlord or Tenant for damages to the Premises, except for
those proceeds of Tenant's insurance of its own personal
property and equipment which would be removable by Tenant at
the Termination Date. All such insurance proceeds shall be
payable to Landlord whether or not the Premises are to be
repaired and restored.
(d) Notwithstanding anything to the contrary herein set forth: (i)
Landlord shall have no duty pursuant to this Section to repair
or restore any portion of any Tenant Additions or to expend
for any repair or restoration of the Premises or Building
amounts in excess of insurance proceeds paid to Landlord and
available for repair or restoration; and (ii) Tenant shall not
have the right to terminate this Lease pursuant to this
Section if any damage or destruction was caused by die act or
neglect of Tenant, its agent or employees.
(e) Any repair or restoration of the Premises performed by Tenant
shall be in accordance with the provisions of Article Nine
hereof
14.02 INSUBSTANTIAL UNTENABILITY
If the Premises or the Budding is damaged by a casualty but neither is rendered
substantially untenantable and Landlord estimates that the time to Substantially
Complete the repair or restoration will not exceed one hundred eighty (180) days
from the date such damage occurred, then Landlord shall proceed to repair and
restore the Building or the Premises other than Tenant Additions, with
reasonable promptness, unless such damage is to the Premises and occurs during
the last six (6) months of the Term, in which event either Tenant or Landlord
shall have the right to terminate this Lease as of the date of such casualty by
giving written notice thereof to the other within twenty (20) days after the
date of such casualty. [Notwithstanding the aforesaid, Landlord's obligation to
repair shall be limited in accordance with the provisions of Section. 14.01
(d)(i) above.]
14.03 RENT ABATEMENT
Except for the negligence or willful act of Tenant or its agents, employees,
contractors or invitees, if all or any part of the Premises are rendered
untenantable by fire or other casualty and this Lease is not terminated, Monthly
Base Rent and Rent Adjustments shall ▇▇▇▇▇ for that part of the Premises which
is untenantable on a per diem basis from the date of the casualty until Landlord
has Substantially Completed the repair and restoration work in the Premises
which it is required to perform, provided, that as a result of such casualty,
Tenant does not occupy the portion of the Premises which is untenantable during
such period.
ARTICLE FIFTEEN
EMINENT DOMAIN
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART
In the event the whole or any substantial part of the Building or of the
Premises is taken or condemned by any competent authority for any public use or
purpose (including a deed given in lieu of condemnation) and is thereby rendered
untenantable, this Lease shall terminate as of the date title vests in such
authority, and Monthly Base Rent and Rent Adjustments shall be apportioned as of
the Termination Date. Notwithstanding anything to the contrary herein set forth,
in the event the taking is temporary (for less than the remaining term of the
Lease), Landlord may elect either (i) to terminate this Lease or (ii) permit
Tenant to receive the entire award attributable to the Premises in which case
Tenant shall continue to pay Rent and this Lease shall not terminate.
15.02 TAKING OF PART
In the event a part of the Building or the Premises is taken or condemned by any
competent authority (or a deed is delivered in lieu of condemnation) and this
Lease is not terminated, the Lease shall be amended to reduce or increase, as
the case may be, the Monthly Base Rent and Tenants Proportionate Share to
reflect the Rentable Area of the Premises or Building, as the case may be,
remaining after any such taking or condemnation. Landlord, upon receipt and to
the extent of the award in condemnation (or proceeds of sale) shall make
necessary repairs and restorations to the Premises (exclusive of Tenant
Additions) and to the Building to the extent necessary to constitute the portion
of the Building not so taken or condemned as a complete architectural and
economically efficient unit. Notwithstanding the foregoing, if as a result of
any taking, or a governmental order that the grade of any street or alley
adjacent to the Building is to be changed and such taking or change of grade
makes it necessary or desirable to substantially remodel or restore the Building
or prevents the economical operation of the Building, Landlord shall have the
right to terminate this Lease upon ninety (90) days prior written notice to
Tenant.
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15.03 COMPENSATION
Landlord shall be entitled to receive the entire award (or sale proceeds) from
any such taking, condemnation or sale without any payment to Tenant, and Tenant
hereby assigns to Landlord Tenant's interest, if any, in such award; provided,
however, Tenant shall have the right separately to pursue against the condemning
authority a separate award in respect of the loss, if any, to Tenant Additions
paid for by Tenant without any credit or allowance from Landlord so long as
there is no diminution of Landlord's award as a result.
ARTICLE SIXTEEN
INSURANCE
16.01 TENANT'S INSURANCE
Tenant, at Tenant's expense, agrees to maintain in force, with a company or
companies acceptable to Landlord, during the Term: (a) Commercial General
Liability Insurance on a primary basis and without any right of contribution
from any insurance carried by Landlord covering the Premises on an occurrence
basis against all claims for personal injury, bodily injury, death and property
damage, including contractual liability covering the indemnification provisions
in this Lease. Such insurance shall be for such limits that are reasonably
required by Landlord from time to time but not less than a combined single limit
of Five Million and No/100 Dollars ($5,000,000.00); (b) Worker's Compensation
and Employers' Liability Insurance for an amount of not less than One Million
and No/100 Dollars ($1,000,000.00), both in accordance with the laws of the
State of Alabama; (c) "All Risks" property insurance in an amount adequate to
cover the full replacement cost of all equipment, installations, fixtures and
contents of the Premises in the event of loss and any such policy shall contain
a provision requiring the insurance carriers to waive their rights of
subrogation against Landlord; (d) In the event a motor vehicle is to be used by
Tenant in connection with its business operation from the Premises,
Comprehensive Automobile Liability Insurance coverage with limits of not less
than Three Million and No/100 Dollars ($3,000,000.00) M) combined single limit
coverage against bodily injury liability and property damage liability arising
out of the use by or on behalf of Tenant, its agents and employees in connection
with this Lease, of any owned, non-owned or hired motor vehicles; and (e) such
other insurance or coverages as Landlord reasonably requires.
16.02 FORM OF POLICIES
Each policy referred to in 16.01 shall satisfy the following requirements. Each
policy shall (i) name Landlord and the Indemnitees as additional insureds
(except Workers' Compensation and Employers' Liability Insurance), (ii) be
issued by one or more responsible insurance companies licensed to do business in
the State of Alabama reasonably satisfactory to Landlord, (iii) where
applicable, provide for deductible amounts satisfactory to Landlord and not
permit co-insurance, (iv) shall provide that such insurance may not be canceled
or amended without thirty (30) days' prior written notice to the Landlord, and
(v) shall provide that the policy shall not be invalidated should the insured
waive in writing prior to a loss, any or all rights of recovery against any
other party for losses covered by such policies. Tenant shall deliver to
Landlord, certificates of insurance and at Landlord's request, copies of all
policies and renewals thereof to be maintained by Tenant hereunder, not less
than ten (10) days prior to the Commencement Date and not less than ten (10)
days prior to the expiration date of each policy.
16.03 LANDLORD'S INSURANCE
Landlord a to purchase and keep in full force and effect during the Term hereof,
including any extensions or renewals thereof, insurance under policies issued
by insurers of recognized responsibility, qualified to do business in the State
of Alabama on the Building in amounts not less than the greater of eighty (80%)
percent of the then full replacement cost (without depreciation) of the Building
(above foundations) or an amount sufficient to prevent Landlord from becoming a
co-insurer under the terms of the applicable policies, against fire and such
other risks as may be included in standard forms of all risk coverage insurance
reasonably available from time to time. Landlord agrees to maintain in force
during the Term, Commercial General Liability Insurance covering the Building on
an occurrence basis against all claims for personal injury, bodily injury, death
and property damage. Such insurance shall be for a combined single limit of Five
Million and No/100 Dollars ($5,000,000.00). Neither Landlord's obligation to
carry such insurance nor the carrying of such insurance shall be deemed to be an
indemnity by Landlord with respect to any claim, liability, loss, cost or
expense due, in whole or in part, to Tenant's negligent acts or omissions or
willful misconduct.
16.04 WAIVER OF SUBROGATION
(a) Landlord agrees that, if obtainable at no, or minimal,
additional cost, and so long as the same is permitted under
the laws of the State of Alabama, it will include in its "All
Risks" policies appropriate clauses pursuant to which the
insurance companies (i) waive all right of subrogation against
Tenant with respect to losses payable under such policies
and/or (ii) agree that such policies shall not be invalidated
should the insured waive in writing prior to a loss any or all
right of recovery against any party for losses covered by such
policies.
(b) Tenant agrees to include, if obtainable at no, or minimal,
additional cost, and so long as the same is permitted under
the laws of the State of Alabama in its "All Risks" insurance
policy or policies on its furniture, furnishings, fixtures and
other property removable by Tenant under the provisions of
this Lease appropriate clauses pursuant to which the insurance
company or companies (i) waive the right of subrogation
against Landlord and/or any tenant of space in the Building
with respect to losses payable under such policy or policies
and/or (ii) agree that such policy or policies shall not be
invalidated should the insured waive in writing prior to a
loss any or all right of recovery against any party for losses
covered by such policy or policies. If Tenant is unable to
obtain in such policy or policies either of the clauses
described in the preceding sentence, Tenant shall, if legally
possible and without necessitating a change in insurance
carriers, have Landlord named in such policy or policies as an
additional insured. If Landlord shall be named as an
additional insured in accordance with the foregoing, Landlord
agrees to endorse promptly to the order of Tenant, without
recourse, any check, draft, or order for the payment of money
representing the proceeds of any such policy or representing
any other payment growing out of or connected with said
policies, and Landlord does hereby irrevocably waive any and
all rights in and to such proceeds and payments.
(c) Provided that Landlord's right of fill recovery under its
policy or policies aforesaid is not adversely affected or
prejudiced thereby, Landlord hereby waives any and all right
of recovery which it might otherwise have against Tenant, its
servants, agents and employees, for loss or damage occurring
to the Building and the fixtures, appurtenances and equipment
therein, to the extent the same is covered by Landlord's
insurance, notwithstanding that such loss or damage may result
from the negligence or fault of Tenant, its servants, agents
or employees. Provided that Tenant's right of full recovery
under its aforesaid policy or policies is not adversely
affected or prejudiced thereby, Tenant hereby waives any and
all right of recovery which it might otherwise have against
Landlord, its servants, and employees and against every other
tenant in the Building who shall have executed a similar
waiver as set forth in this Section 16.04 (c) for loss or
damage to Tenant's furniture, furnishings, fixtures and other
property removable by Tenant under the provisions hereof to
the extent that same is covered or coverable by Tenant's
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insurance required under this Lease, notwithstanding that such
loss or damage may result from the negligence or fault of
Landlord, its servants, agents or employees, or such other
tenant and the servants, agents or employees thereof.
(d) Landlord and Tenant hereby agree to advise the other promptly
if the clauses to be included in their respective insurance
policies pursuant to subparagraphs (a) and (b) above cannot be
obtained on the terms hereinbefore provided and thereafter to
furnish the other with a certificate of insurance or copy of
such policies showing the naming of the other as an additional
insured, as aforesaid. Landlord and Tenant hereby also agree
to notify the other promptly of any cancellation or change of
the terms of any such policy which would affect such clauses
or naming. All such policies which name both Landlord and
Tenant as additional insureds shall, to the extent obtainable,
contain agreements by the insurers to the effect that no act
or omission of any additional insured will invalidate the
policy as to the other additional insureds.
16.05 NOTICE OF CASUALTY
Tenant shall give Landlord notice in case of a fire or accident in the Premises
promptly after Tenant is aware of such event.
ARTICLE SEVENTEEN
WAIVER OF CLAIMS AND INDEMNITY
17.01 WAIVER OF CLAIMS
To the extent permitted by Law, Tenant releases the Indemnitees from, and waives
all claims for, damage to person or property sustained by the Tenant or any
occupant of the Premises or the Property resulting directly or indirectly from
any existing or future condition, defect, matter or thing in and about the
Premises or the Property or any part of either or any equipment or appurtenance
therein, or resulting from any accident in or about the Premises or the
Property, or resulting directly or indirectly from any act or neglect of any
tenant or occupant of the Property or of any other person, including Landlord's
agents and servants, except to the extent caused by the willful and wrongful act
of any of the Indemnitees. To the extent permitted by Law, Tenant hereby waives
any consequential damages, compensation or claims for inconvenience or loss of
business, rents, or profits as a result of such injury or damage, whether or not
caused by the willful or wrongful act of any of the Indemnitees. If any such
damage, whether to the Premises or the Property or any part of either, or
whether to Landlord or to other tenants in the Property, results from any act or
neglect of Tenant, its employees, servants, agents, contractors, invitees or
customers, Tenant shall be liable therefor and Landlord may, at Landlord's
option, repair such damage and Tenant shall, upon demand by Landlord, as payment
of additional Rent hereunder, reimburse Landlord within ten (10) days of demand
for the total cost of such repairs, in excess of amounts, if any, paid to
Landlord under insurance covering such damages. Tenant shall not be liable for
any such damage caused by its acts or neglect if Landlord or a tenant has
recovered the full amount of the damage from proceeds of insurance policies and
the insurance company has waived its right of subrogation against Tenant.
17.02 INDEMNITY BY TENANT
To the extent permitted by law, Tenant agrees to indemnify, protect, defend and
hold the Indemnitees harmless against any and all actions, claims, demands,
costs and expenses, including reasonable attorney's fees and expenses for the
defense thereof, arising from Tenant's occupancy of the Premises, from the
undertaking of any Tenant Additions or repairs to the Premises, from the conduct
of Tenant's business on the Premises, or from any breach or default on the part
of Tenant in the performance of any covenant or agreement on the part of Tenant
to be performed pursuant to the terms of this Lease, or from any willful or
negligent act of Tenant, its agents, contractors, servants, employees, customers
or invitees, in or about the Premises, but only to the extent of Landlord's
liability, if any, in excess of amounts, if any, paid to Landlord under
insurance covering such claims or liabilities. In case of any action or
proceeding brought against the Indemnitees by reason of any such claim, upon
notice from Landlord, Tenant covenants to defend such action or proceeding by
counsel reasonably satisfactory to Landlord.
ARTICLE EIGHTEEN
RULES AND REGULATIONS
18.01 RULES
Tenant agrees for itself and for its subtenants, employees, agents, and invitees
to comply with the rules mid regulations listed on Exhibit D attached hereto and
with all reasonable modifications and additions thereto which Landlord may make
from time to time.
18.02 ENFORCEMENT
Nothing in this Lease shall be construed to impose upon the Landlord any duty or
obligation to enforce the rules and regulations as set forth on Exhibit D or as
hereafter adopted, or the terms, covenants or conditions of any other lease as
against any other tenant, and the Landlord shall not be liable to the Tenant for
violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees. Landlord shall use reasonable efforts to enforce the
rules and regulations of the Building in a uniform and non-discriminatory
manner. Tenant shall pay to Landlord all damages caused by Tenant's failure to
comply with the provisions of this Article Eighteen and shall also pay to
Landlord as additional Rent an amount equal to any increase in insurance
premiums caused by such failure to comply.
ARTICLE NINETEEN
LANDLORDS RESERVED RIGHTS
Landlord shall have the following rights exercisable without notice to Tenant
and without liability to Tenant for damage or injury to persons, property or
business and without being deemed an eviction or disturbance of Tenant's use or
possession of the Premises or giving rise to any claim for offset or abatement
of Rent: (1) to change the Building's name or street address upon thirty (30)
days' prior written notice to Tenant; (2) to install, affix and maintain all
signs on the exterior and/or interior of the Building; (3) to designate and/or
approve prior to installation, all types of signs, window shades, blinds,
drapes, awnings or other similar items, and all internal lighting that may be
visible from the exterior of the Premises; (4) upon reasonable notice to Tenant,
to display the Premises to prospective purchasers at reasonable hours at any
time during the Term and to prospective tenants at reasonable hours during the
last twelve (12) months of the Term; (5) to grant to any party the exclusive
right to conduct any business or render any service in or to the Building,
provided such exclusive right shall not operate to prohibit Tenant from using
the Premises for the purpose permitted hereunder, (6) to change the arrangement
and/or location of entrances or passageways, doors and doorways, corridors,
elevators, stairs, washrooms or public portions of the Building, and to close
entrances, doors, corridors, elevators or other facilities, provided that such
action shall not materially and adversely interfere with Tenants' access to the
Premises or the Building; (7) to have access for Landlord and other tenants of
the Building to any mail chutes and boxes located in or on the Premises as
required by any applicable rules of the United States
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Post office, and (8) to close the Building after Standard Operating Hours except
that Tenant and its employees and invitees shall be entitled to admission at all
times, under such regulations as Landlord prescribes for security purposes.
ARTICLE TWENTY
ESTOPPEL CERTIFICATE
20.01 IN GENERAL
Within fifteen (15) days after request therefor by Landlord, Mortgagee or any
prospective mortgagee or owner, Tenant agrees as directed in such request to
execute an Estoppel Certificate in recordable form, binding upon Tenant,
certifying (i) that this Lease is unmodified and in full force and effect (or if
there have been modifications, a description of such modifications and that this
Lease as modified is in full force and effect); (ii) the dates to which Rent has
been paid; (iii) that Tenant is in the possession of the Premises if that is the
case; (iv) that Landlord is not in default under this Lease, or, if Tenant
believes Landlord is in default, the nature thereof in detail; (v) that Tenant
has no off-sets or defenses to the performance of its obligations under this
Lease (or if Tenant believes there are any off-sets or defenses, a full and
complete explanation thereof); (vi) that the Premises have been completed in
accordance with the terms and provisions hereof or the Workletter, that Tenant
has accepted the Premises and the condition thereof and of all improvements
thereto and has no claims against Landlord or any other party with respect
thereto; (vii) that if an assignment of rents or leases has been served upon the
Tenant by a Mortgagee, Tenant will acknowledge receipt thereof and agree to be
bound by the provisions thereof; (viii) that Tenant will give to the Mortgagee
copies of all notices required or permitted to be given by Tenant to Landlord;
and (ix) to any other information reasonably requested.
20.02 ENFORCEMENT
In the event that Tenant fails to deliver an Estoppel Certificate, then such
failure shall be a Default for which there shall be no cure or grace period. In
addition to any other remedy available to Landlord, Landlord may impose a
penalty equal to $500.00 for each day that Tenant fails to deliver an Estoppel
Certificate and Tenant shall be deemed to have irrevocably appointed Landlord as
Tenants attorney-in-fact to execute and deliver such Estoppel Certificate.
ARTICLE TWENTY-ONE
RELOCATION OF TENANT
Landlord reserves the right, upon thirty (30) days written notice, to transfer
and remove Tenant from the Premises to any other space of substantially
equivalent size and area in the Park. Landlord shall bear the reasonable expense
of said removal as well as the expense of any renovations or alterations
necessary to make the new space conform in arrangement and layout with the
original space covered by this Lease.
ARTICLE TWENTY-TWO
REAL ESTATE BROKERS
Tenant represents that, except for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, Tenant has not dealt
with any real estate broker, sales person, or finder in connection with this
Lease, and no such person initiated or participated in the negotiation of this
Lease, or showed the Premises to Tenant. Tenant hereby agrees to indemnify,
protect, defend and hold Landlord and the Indemnitees, harmless from and against
any and all liabilities and claims for commissions and fees arising out of a
breach of the foregoing representation. Landlord shall be responsible for the
payment of all commissions to the broker, if any, specified in this Article.
ARTICLE TWENTY-THREE
MORTGAGEE PROTECTION
23.01 SUBORDINATION AND ATTORNMENT
This Lease is and shall be expressly subject and subordinate at all times to (i)
any ground or underlying lease of the Real Property, now or hereafter existing,
and all amendments, extensions, renewals and modifications to any such lease,
and (ii) the lien of any mortgage or trust deed now or hereafter encumbering fee
title to the Real Property and/or the leasehold estate under any such lease, and
all amendments, extensions, renewals, replacements and modifications of such
mortgage or trust deed and/or the obligation secured thereby, unless such ground
lease or ground lessor, or mortgage, trust deed or Mortgagee, expressly provides
or elects that the Lease shall be superior to such lease or mortgage or trust
deed. If any such mortgage or trust deed is foreclosed (including any sale of
the Real Property pursuant to a power of sale), or if any such lease is
terminated, upon request of the Mortgagee or ground lessor, as the case may be,
Tenant shall attorn to the purchaser at the foreclosure sale or to the ground
lessor under such lease, as the case may be, provided, however, that such
purchaser or ground lessor shall not be (i) bound by any payment of Rent for
more than one month in advance except payments in the nature of security for the
performance by Tenant of its obligations under this Lease; (ii) subject to any
offset, defense or damages arising out of a default of any obligations of any
preceding Landlord; or (iii) bound by any amendment or modification of this
Lease made without the written consent of the Mortgagee or ground lessor; or
(iv) liable for any security deposits not actually received in cash by such
purchaser or ground lessor. This subordination shall be self-operative and no
further certificate or instrument of subordination need be required by any such
Mortgagee or ground lessor. In confirmation of such subordination, however,
Tenant shall execute promptly any reasonable certificate or instrument that
Landlord, Mortgagee or ground lessor may request. Tenant hereby constitutes
Landlord as Tenant's attorney-in-fact to execute such certificate or instrument
for and on behalf of Tenant upon Tenant's failure to do so within fifteen (15)
days of a request to do so. Upon request by such successor in interest, Tenant
shall execute and deliver reasonable instruments confirming the attornment
provided for herein.
23.02 MORTGAGEE PROTECTION
Tenant agrees to give any Mortgagee or ground lessor, by registered or certified
mail, a copy of any notice of default served upon the Landlord by Tenant,
provided that prior to such notice Tenant has received notice (by way of service
on Tenant of a copy of an assignment of rents and leases, or otherwise) of the
address of such Mortgagee or ground lessor. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the Mortgagee or ground lessor shall have an additional thirty
(30) days after receipt of notice thereof within which to cure such default or
if such default cannot be cured within that time, then such additional notice
time as may be necessary, if, within such thirty (30) days any Mortgagee or
ground lessor has commenced and is diligently pursuing the, remedies necessary
to cure such default (including
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but not limited to commencement of foreclosure proceedings or other proceedings
to acquire possession of the Real Property, if necessary to effect such cure).
Such period of time shall be extended by any period within which such Mortgagee
or ground lessor is prevented from commencing or pursuing such foreclosure
proceedings or other proceedings to acquire possession of the Real Property by
reason of Landlord's bankruptcy. Until the time allowed as aforesaid for
Mortgagee or ground lessor to cure such defaults has expired without cure,
Tenant shall have no right to, and shall not, terminate this Lease on account of
default. This Lease may not be modified or amended so as to reduce the rent or
shorten the term, or so as to adversely affect in any other respect to any
material extent the rights of the Landlord, nor shall this Lease be canceled or
surrendered, without the prior written consent, in each instance, of the ground
lessor or the Mortgagee.
ARTICLE TWENTY-FOUR
NOTICES
(a) All notices, demands or requests provided for or permitted to be given
pursuant to this Lease must be in writing and shall be personally
delivered, sent by Federal Express or other overnight courier service,
or mailed by first class, registered or certified mail, return receipt
requested, postage prepaid.
(b) All notices, demands or requests to be sent pursuant to this Lease
shall be deemed to have been properly given or served by delivering or
sending the same in accordance with this Section, addressed to the
parties hereto at their respective addresses listed below:
(1) Notices to Landlord shall be addressed:
▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. CC: Metropolitan Life Insurance Company
Post Office Box 43248 ATTN: Regional Manager
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(2) Payment shall be addressed:
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: Accounts Receivable - Inverness
(3) Notices to Tenant shall be addressed:
▇▇▇▇▇▇▇▇ TXEN Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(c) If notices, demands or requests are sent by registered or certified
mail, said notices, demands or requests shall be effective upon being
deposited in the United States mail. However, the time period in which
a response to any such notice, demand or request must be given shall
commence to run from the date of receipt on the return receipt of the
notice, demand or request by the addressee thereof. Rejection or other
refusal to accept or the inability to deliver because of changed
address of which no notice was given shall be deemed to be receipt of
notice, demand or request sent.
Notices may also be served by personal service upon any officer,
director or partner of Landlord or Tenant or in the case of delivery by
Federal Express or other overnight courier service, notices shall be
effective upon acceptance of delivery by an employee, officer, director
or partner of Landlord or Tenant.
(d) By giving to the other party at least thirty (30) days written notice
thereof, either party shall have the right from time to time during the
term of this Lease to change their respective addresses for notices,
statements, demands and requests, provided such new address shall be
within the United States of America.
ARTICLE TWENTY-FIVE
STORAGE SPACE
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25.03 RELOCATION
Landlord may from time to time upon thirty (30) days prior notice Tenant
relocate any or all of the Storage Space to other storage areas in the Building
("New Storage Space") in which event the New Storage Space shall be deemed to be
the Storage Space hereunder. Landlord shall pay the actual and reasonable
expenses of physically moving Tenant's property to the New Storage Space.
ARTICLE TWENTY-SIX
MISCELLANEOUS
26.01 LATE CHARGES
All payments required hereunder (other than the Monthly Base Rent, Rent
Adjustments, and Rent Adjustment Deposits, which shall be due as hereinbefore
provided) to Landlord shall be paid within ten (10) days after Landlord's demand
therefor. All such amounts (including, without limitation Monthly Base Rent,
Rent Adjustments, and Rent Adjustment Deposits) not paid when due shall bear
interest from the date due until the date paid at the Default Rate in effect or
the date such payment was due.
26.02 WAIVER OF JURY TRIAL
As a material inducement to Landlord to enter into this Lease, Tenant hereby
waives its right to a trial by jury of any issues relating to or arising out of
its obligations under this Lease or its occupancy of the Premises. Tenant
acknowledges that it has read and understood the foregoing provision.
26.03 DEFAULT UNDER OTHER LEASE
It shall be a Default under this Lease if Tenant or any Affiliate holding any
other lease with Landlord for premises in the Building defaults under such lease
and as a result thereof such lease is terminated or terminable.
26.04 OPTION
This Lease shall not become effective as a lease or otherwise until executed and
delivered by both Landlord and Tenant. The submission of the Lease to Tenant
does not constitute a reservation of or option for the Premises, except that it
shall constitute an irrevocable offer on the part of Tenant in effect for
fifteen (15) days to lease the Premises on the terms and conditions herein
contained.
26.05 TENANT AUTHORITY
Tenant represents and warrants to Landlord that it has full authority and power
to enter into and perform its obligations under this Lease, that the person
executing this Lease is fully empowered to do so, and that no consent or
authorization is necessary from any third party. Landlord may request that
Tenant provide Landlord evidence of Tenant's authority.
26.06 ENTIRE AGREEMENT
This Lease, the Exhibits attached hereto and the Workletter contain the entire
agreement between Landlord and Tenant concerning the Premises and there are no
other agreements, either oral or written, and no other representations or
statements, either oral or written, on which Tenant has relied. This Lease shall
not be modified except by a writing executed by Landlord and Tenant.
26.0 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE
If Mortgagee of Landlord requires a modification of this Lease which shall not
result in any increased cost or expense to Tenant or in any other substantial
and adverse change in the rights and obligations of Tenant hereunder, then
Tenant agrees that the Lease may be so modified.
26.08 EXCULPATION
Tenant agrees, on its behalf and on behalf of its successors and assigns, that
any liability or obligation under this Lease shall only be enforced against
Landlord's equity interest in the Property up to a maximum of three million
dollars & no/100 ($3,000,000.00), and in no event against any other assets of
the Landlord, or Landlord's officers or directors.
26.09 ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of Rent due shall be deemed to be other than on account
of the amount due, and no endorsement or statement on any check or any letter
accompanying any check or payment of Rent shall be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or payment of Rent
or pursue any other remedies available to Landlord. No receipt of money by
Landlord from Tenant after the termination of this Lease or Tenant's right of
possession of the Premises shall reinstate, continue or extend the Term.
26.10 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING
In the event of any sale or other transfer of the Building, Landlord shall be
entirely freed and relieved of all agreements and obligations of Landlord
hereunder accruing or to be performed after the date of such sale or transfer,
provided that all of Landlord's obligations hereunder am specifically assumed by
the buyer or transferee.
26.11 BINDING EFFECT
This Lease shall be binding upon and inure to the benefit of Landlord and Tenant
and their respective heirs, legal representatives, successors and permitted
assigns.
26.12 CAPTIONS
The Article and Section captions in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such Articles and Sections.
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26.13 APPLICABLE LAW
This Lease shall be construed in accordance with the laws of the State of
Alabama. If any term, covenant or condition of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term,
covenant or condition to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
item, covenant or condition of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
26.14 ABANDONMENT
In the event Tenant vacates or abandons the Premises but is otherwise in
compliance with all the terms, covenants and conditions of this Lease,
Landlord shall (i) have the right to enter into the Premises in order to show
the space to prospective tenants, (ii) have the right to reduce the services
provided to Tenant pursuant to the terms of this Lease to such levels as
Landlord reasonably determines to be adequate services for an unoccupied
premises and (iii) during the last six (6) months of the Term, have the right
to prepare the Premises for occupancy by another tenant upon the end of the
Term. Tenant expressly acknowledges that in the absence of written notice
pursuant to Section 11.02)a), hereof, [Note: (if applicable) or pursuant to
Alabama Civil Code Section_____, terminating Tenant's right to possession,]
none of the foregoing acts of Landlord or any other act of Landlord shall
constitute a termination of Tenant's right to possession or an acceptance of
Tenant's surrender of the Premises, and the Lease shall continue in effect.
26.15 LANDLORD'S RIGHT TO PERFORM TENANTS DUTIES
If Tenant fails timely to perform any of its duties under this Lease or the
Workletter, Landlord shall have the right (but not the obligation), to perform
such duty on behalf and at the expense of Tenant without prior notice to
tenant, and all sums expended or expenses incurred by Landlord in performing
such duty shall be deemed to be additional Rent under this Lease and shall be
due and payable upon demand by Landlord.
26.16 RIDERS
All Riders attached hereto and executed both by Landlord and Tenant shall be
deemed to be a part hereof and hereby incorporated herein.
IN WITNESS WHEREOF, this Lease has been executed as of the date set forth in
Section 1.01(4) hereof.
Signed sealed and delivered by Landlord LANDLORD: METROPOLITAN LIFE INSURANCE
this 24th day of April, 1998, in the COMPANY, a New York corporation
presence of:
/s/ By:/s/ J. ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
-------------------------------- -----------------------------------
Witness J. ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
EIM Manager
/s/ N. Schenelle Trim
--------------------------------
Notary Public (SEAL)
NOTARY PUBLIC, DEKALB COUNTY, GEORGIA
MY COMMISSION EXPIRES OCT 7, 2000
(NOTARIAL SEAL)
Signed, sealed and delivered by Tenant TENANT: ▇▇▇▇▇▇▇ TXEN Corporation
this 23rd day of April, 1998, in the
presence of:
--------------------------------- By:/s/ H. ▇▇▇▇ ▇▇▇▇
Witness -----------------------------------
Name H. ▇▇▇▇ ▇▇▇▇
----------------------------------
Title President
---------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Notary Public Attest:/s/
-------------------------------
MY COMMISSION EXPIRES APRIL 9, 2001
(NOTARIAL SEAL) (CORPORATE SEAL)
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Signed, sealed and delivered by Agent MANAGER: ▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.,
this 22nd day of April, 1998, in the a Georgia corporation
presence of:
▇▇▇▇▇ ▇. Ban
----------------------------------- By: ▇. ▇. ▇▇▇▇▇
Witness ------------------------------
▇. ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ Executive Vice President
-----------------------------------
Notary Public
My Commission Expires: 10/31/99
-------------
(NOTARIAL SEAL)
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10 INVERNESS CENTER
FIFTH FLOOR PLAN
26
EXHIBIT D
RULES AND REGULATIONS
(1) No sign, lettering, picture, notice or advertisement shall be placed on
any outside window or in a position to be visible from outside the
Premises and if visible from the outside or public corridors within the
Building shall be installed in such manner and be of such character and
style as Landlord shall approve in writing.
(2) Tenant shall not use the name of the Building for any purpose other
than Tenant's business address; Tenant shall not use the name of the
Building for Tenant's business address after Tenant vacates the
Premises; nor shall Tenant use any picture or likeness of the Building
in any circulars, notices, advertisements or correspondence.
(3) No article which is explosive or inherently dangerous is allowed in the
Building.
(4) Tenant shall not represent itself as being associated with any company
or corporation by which the Building may be known or names.
(5) Sidewalks, entrances, passages, courts, corridors, halls, elevators and
stairways in and about the Premises shall not be obstructed.
(6) No animals (except for dogs in the company of a blind person), pets,
bicycles or other vehicles shall be brought or permitted to be in the
Building or the Premises.
(7) Room-to-room canvasses to solicit business from other tenants of the
Building are not permitted, Tenant shall not advertise the business,
profession or activities of Tenant conducted in the Building in any
manner which violates any code of ethics by any recognized association
or organization pertaining to such business, profession or activities.
(8) Tenant shall not waste electricity, water or air-conditioning and shall
cooperate fully with Landlord to assure the most effective and
efficient operation of the Building's heating and air-conditioning
systems.
(9) No locks or similar devices shall be attached to any door except by
Landlord and Landlord shall have the right to retain a key to all such
locks. Tenant may not install any locks without Landlord's prior
approval.
(10) Tenant assumes full responsibility of protecting the Premises from
theft, robbery and pilferage; the Indemnitees shall not be liable for
damage thereto or theft or misappropriation thereof. Except during
Tenant's normal business hours, Tenant shall all doors to the Premises
locked and other means of entry to the Premises closed and secured. All
corridor doors shall remain closed at all times. If Tenant desires
telegraphic, telephones, burglar alarms or other electronic mechanical
devices, the Landlord will, upon request direct where and how
connections and all wiring for such services shall be installed and no
boring, cutting or installing of wires or cables is permitted without
Landlord's approval.
(11) Except with the prior approval of Landlord, all cleaning, repairing,
janitorial, decorating, painting or other services and work in and
about the Premises shall be done only by authorized Building personnel.
(12) The weight, size and location of safes, furniture, equipment, machines
and other large or bulky articles shall be subject to Landlord's
approval and shall be brought to the Building and into and out of the
Premises at such times and in such manner as the Landlord shall direct
and at Tenant's sole risk and cost. Prior to Tenant's removal of any of
such articles from the Building, Tenant shall obtain written
authorization of the Office of the Building and shall present such
authorization to a designated employee of Landlord.
(13) Tenant shall not overload the safe capacity of the electrical wiring of
the Building and the Premises or exceed the capacity of the feeders to
the Building or risers.
(14) To the extent permitted by law, Tenant shall not cause or permit
picketing or other activity which would interfere with the business of
Landlord or any other tenant or occupant of the Building, or
distribution of written materials involving its employees in or about
the Building, except in those locations and subject to time and other
limitations as to which Landlord may give prior written consent.
(15) Tenant shall not ▇▇▇▇, otherwise prepare or sell any food or beverages
in or from the Premises or use the Premises for housing accommodations
or lodging or sleeping purposes except that Tenant may install and
maintain vending machines, coffee/beverage stations and food warming
equipment and eating facilities for the benefit of its employees or
guests, provide the same are maintained in compliance with applicable
laws and regulations and do not disturb other tenants in the Building
with odor, refuse or pests.
(16) Tenant shall not permit the use of any apparatus for sound production
or transmission in such manner that the sound so transmitted or
produced shall be audible or vibrations therefrom shall be detectable
beyond the Premises; nor permit objectionable odors or vapors to
emanate from the Premises.
(17) No floor covering shall be affixed to any floor in the Premises by
means of glue or other adhesive without Landlord's prior
written-consent.
(18) Tenant shall at all time maintain the window blinds in the lowered
position, though Tenant may keep the louvers open.
(19) Tenant shall only use the freight elevator for mail carts, dollies and
other similar devices for delivering material between floors that
Tenant may occupy.
(20) No smoking, eating, drinking, loitering or laying is permitted in the
Common Area except in designated areas. Smoking is prohibited in all
areas of the Premises, including common areas and all grounds and the
parking lot, except in areas, if any,
Exhibit D - I
27
outside the Building (and outside any other Building in the Park) that
are designated by Landlord as "Designated Smoking Areas".
(21) Landlord may require that all persons who enter or leave the Building
identify themselves to security guards, by registration or otherwise.
Landlord, however, shall have no responsibility or liability for any
theft, robbery or other crime in the Building. Tenant shall assume full
responsibility for protecting the Premises, including keeping all doors
to the Premises locked after the close of business.
(22) Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency and shall cooperate and participate in all reasonable security
and safety programs affecting the Building.
Exhibit D - 2