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EXHIBIT 10.8
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OFFICE BUILDING LEASE AGREEMENT
(FIVE CORPORATE CENTRE)
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LEASE DATE: December 31, 1999
LANDLORD: Crescent Resources, Inc., a South Carolina corporation
NOTICE Post Office Box 1003 [zip code 28201-1003] (If delivered by mail)
ADDRESS OF ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ [zip code 28202] (If personally
LANDLORD: delivered or delivered by overnight delivery service or telegram)
Charlotte, North Carolina
Attention: Treasurer Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
TENANT: BlueStar Communications, Inc.
NOTICE BlueStar Communications, Inc. (After Lease Commencement
ADDRESS OF ▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇ Address will be Suite 600 of
TENANT: ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Five Corporate Centre)
Attention: Norton ▇▇▇▇▇▇, Esq. Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
TENANT'S
CONTACT
PERSON: Norton ▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BUILDING: Six (6) story office building known as Five Corporate Centre located
on the Land at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
LAND: That certain tract or parcel of land located in Franklin, ▇▇▇▇▇▇▇▇▇▇
County, Tennessee, and described on Exhibit A attached hereto and
incorporated herein by reference.
PREMISES: Suites 500 and 600 in the Building, as more particularly described
on Exhibit B attached hereto and incorporated herein by reference.
NOC
PREMISES: As shown on exhibit B (4959 square feet)
PREMISES 48,064 square feet located on the following floor(s) in the Building
RENTABLE and a prorata portion of the common area of such Floors and the
AREA: Building: Floor Six and a portion of the Floor Five measured in
accordance with ANSI/BOMA Z65.1-1996).
Common Area factor for multi-tenant floors is 13.5%.
BUILDING 151,833 square feet (measured in accordance with ANSI/BOMA
RENTABLE Z65.1-1996)
AREA:
LEASE TERM: Five (5) years and four (4) months, beginning on the Commencement
Date. Provided, however, if the Commencement Date is any day other
than the first day of a calendar month, the Lease Term shall be
extended automatically until midnight on the last day of the
calendar month in which the Lease Term otherwise would expire.
RENEWAL Tenant may renew the Term of this Lease for two (2) five (5) year
TERMS: terms or one (1) one (1) year term at the end of the original term
only upon compliance with the following conditions:
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a. Tenant must give notice of renewal (the "Renewal Notice") to
Landlord at least 180 days prior to beginning of a Renewal
Term.
b. No Event of Default by Tenant that is not cured within
applicable notice and cure periods may exist at the time of
giving of the Renewal Notice and/or the beginning of the
Renewal Term.
c. Lease must be in full force and effect at the time of the giving
of the Renewal Notice and/or the beginning of the Renewal Term.
d. All terms and conditions of original five (5) year term shall
apply to each Renewal Term except the Rent shall be as set
forth in Exhibit D.
TERM
COMMENCEMENT May 1, 2000 (but subject to extension as set forth in Section
DATE: Two of this Lease)
RENT
COMMENCEMENT
RENT September 1, 2000 (intended to be four (4) months [the "Nonpayment
Period"] immediately following the Term Commencement Date unless
Tenant Delay Factors exist). The Non-payment Period may also be
reduced pursuant to Section 2(a) and 2(e)(1) of the Lease.
BASE RENT: As set forth on Exhibit D.
BASE RENT
ADJUSTMENTS: As set forth in Exhibit D.
OPERATING
EXPENSE
BASE YEAR: Year 2000
ELECTRICAL
EXPENSE STOP: ($0.65) multiplied by the Building Rentable Area, which is a part of
the Operating Cost Expense Stop.
ADVANCE
BASE RENTAL
PAYMENT: N/A.
SECURITY
DEPOSIT: N/A.
TENANT'S
PROPORTION-
ATE SHARE: Premises Rentable Area / Building Rentable Area = 31.65%
TENANT
IMPROVEMENT
ALLOWANCE: $18.00 per rentable square foot contained in the Premises.
TENANT PLANS
AND SPECIFIC- Plan Submission Deadline: Tenant agrees to cause the construction
ATIONS: plans for the Tenant Improvements, excluding the NOC) to be
submitted to Landlord's engineers not later than January 7, 2000.
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NOC Plan Submission Deadline: Tenant agrees to cause the
Construction Plans for the Tenant Improvements for its Network
Operating Center (the "NOC") to be submitted to Landlord's engineers
not later than February 7, 2000.
PARKING
RATIO: Five (5) space(s) per 1,000 rentable square feet contained in
the Premises.
BROKER: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Agent: ▇▇▇▇ ▇▇▇▇▇▇
The foregoing summary (the "Lease Summary") is hereby incorporated into and made
a part of the Lease Agreement. In the event, however, of a conflict between the
terms of the Lease Summary and the terms of the Lease Agreement, the former
shall control.
Initial: ____ (For Landlord)
Initial: ____ (For Tenant)
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crescent\bluestar.lse
LEASE
1. LEASE OF PREMISES.
Landlord (as set forth in the Lease Summary), for and in consideration
of payment of the Rent and the covenants herein to be performed by Tenant (as
set forth in the Lease Summary), does hereby lease unto Tenant and Tenant does
hereby lease from Landlord the Premises upon the following terms and conditions.
2. TERM.
(a) The Term of this Lease shall commence on the Term Commencement Date
and Tenant's obligation to pay Base Rent and Additional Rent hereunder shall
commence on the Rent Commencement Date. Improvement Complete shall mean the last
to occur of (1) the Premises having been substantially complete according to
Tenant's plans and specifications (except for punch list items) and Tenant can
move its furniture into the Premises (2) delivery of a certificate of
substantial completion signed by Landlord's architect or (3) delivery of a
Certificate of Occupancy issued by the City of Franklin, Tennessee permitting
furniture installation in the Premises. In the event the Premises are not
Improvement Complete by the Term Commencement Date due to Force Majeure Matters
or Tenant Delay Factors (both as hereinafter defined), Landlord may extend the
time to complete said improvements to the Premises for a period of time equal to
such time as Landlord has been delayed by Force Majeure Matters and/or Tenant
Delay Factors. In the event the Premises are not Improvement Complete in
accordance with the Tenant Plans. In the event Landlord has not caused the
Premises to be Improvement Complete by July 1, 2000, unless Landlord has been
delayed by Tenant Delay Factors, Tenant may terminate this Lease by giving
notice to Landlord not later than August 1, 2000, unless Tenant has taken
occupancy of the Premises. In the event the Term Commencement Date is so
extended, Landlord and Tenant shall execute a supplemental agreement to confirm
the Term Commencement Date once it has been determined. In the event Tenant
occupies the Premises at any time prior to the Term Commencement Date, Tenant's
occupancy shall be subject to all the terms and conditions of this Lease, except
rent payments and payment of Tenant's Proportionate Share of Operating Expenses
both of which shall commence on the Rent Commencement Date. In the event the
Term Commencement Date is extended by Landlord, the parties agree to execute a
Commencement Date Agreement which shall establish the Term Commencement Date and
the Rent Commencement Date so that the Rent Commencement Date is four (4) months
after the Term Commencement Date. The Non-Payment Period shall be reduced by the
period of time equal to the period of time Landlord is delayed in causing the
Premises to be Improvement Complete due to Tenant Delay Factors. The Non-Payment
Period shall be increased by two (2) days for every day after June 1, 2000 that
the Landlord has not caused the Premises to be Improvement Complete as a result
of any reason except for delays caused by Tenant Delay Factors.
(b) The Tenant shall have the renewal rights as shown in the Lease
Summary.
(c) "Tenant Delay Factors" shall be defined as delays caused by Tenant,
or Tenant's agents, employees, contractors, subcontractors or licensees
including, but not limited to, failure to deliver Tenant Plans by the required
date as set forth in the Workletter and Lease Summary.
(d) "Force Majeure Matters" shall be defined as any delays due to any
condition, matter or circumstance beyond the reasonable control of a party
(collectively, "Force Majeure Matters"; each, a "Force Majeure Matter"),
including, without limitation, the following: strikes; unavailability of
materials; lockouts; acts of God; governmental restrictions, war or enemy action
or invasion; civil commotion, insurrection; riot; mob violence; malicious
mischief or sabotage; fire or any other casualty; adverse weather conditions; a
condemnation; failure of a governmental instrumentality to act in a timely
fashion, any litigation or other legal
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proceeding which delays the approval of plans or the issuance of any grading or
building permit for construction, including, without limitation, the issuance of
an injunction enjoining such approval and/or issuance, as the case may be; any
law, order or regulation of any governmental, quasi-governmental, judicial or
military authority; or other similar cause. Without limiting the generality of
the foregoing, in the event a Force Majeure Matter affects Landlord's
construction and delivery obligation(s) relative to the Premises under this
Lease, the Term Commencement Date and Rent Commencement Date shall be extended
by the same number of days as the number of days of delay caused by such Force
Majeure Matter on the critical path of completing such construction and delivery
obligation(s). Except for Tenant's obligations to pay Base Rent, Tenant's
Proportionate Share and any other payments due from Tenant hereunder, the
obligations of both parties under this Lease shall be subject to delays cause by
Force Majeure Matters.
(e) The Tenant Improvement Allowance shall be applied by Landlord
against the costs of designing, planning and constructing the improvements to
the Premises (the "Tenant Improvements") in accordance with the Tenant Plans
which are to be prepared and approved in accordance with the Workletter attached
as Exhibit C. Landlord shall pay for the cost of the Building Shell Improvements
as described in said Workletter. In the event the cost of the Tenant
Improvements exceed the Tenant Improvement Allowance, Tenant shall be
responsible for bearing and paying such excess costs (the "Excess Costs"), as
follows:
(1) The Non-Payment Period shall be reduced, and Tenant shall not
be required to pay Excess Costs until such credit is exhausted.
(2) After the Premises are Improvement Complete but prior to
occupancy of the Premises by Tenant, Tenant shall pay to Landlord an
amount equal to ninety percent (90%) of the Excess Costs (as then
reasonably estimated by Landlord).
(3) As soon as the final accounting is prepared and submitted by
Landlord to Tenant, Tenant shall pay to Landlord the entire unpaid
balance (less 5% of Excess Costs for punch list items) of the actual
Excess Costs based on the final costs to Landlord. The aforesaid
withheld amount shall be promptly paid to Landlord after completion of
all punch list items.
The Excess Costs (if any) payable by Tenant under this Paragraph 2(e)
shall be due hereunder at the time specified herein, and failure to make any
such payment when due shall constitute a default of Tenant under this Lease.
(f) Except as otherwise provided above in this Paragraph 2, all
installations and improvements now or hereafter placed on or in the Premises
shall be for Tenant's account and at Tenant's cost. Tenant shall also pay ad
valorem taxes and increased insurance on or attributable to the Tenant
Improvements (to the extent of the cost of the Tenant Improvements in excess of
the Tenant Improvement Allowance), which cost shall be payable by Tenant to
Landlord as Additional Rent.
3. RENT.
(a) Tenant shall pay to Landlord at its principal office, or at such
other address as Landlord shall designate to Tenant in writing from time to
time, the Base Rent set forth on the Lease Summary and in Exhibit D, payable on
the first business day of each calendar month in the monthly installments as set
forth in Exhibit D, in advance, without demand and without set off, except as
expressly permitted herein, beginning as of the Rent Commencement Date and
continuing until the expiration of the Term.
(b) In the event the Term commences on a day other than the first
business day of a calendar month, the Tenant shall pay to the Landlord, on or
before the Rent Commencement Date, a pro rata portion of the monthly installment
of Base Rent, such pro rata portion to be based on the number of days remaining
in such partial month after the Rent Commencement Date. In event the Term
expires on other than the last business day of a calendar month, the final
month's installment of Base Rent shall be prorated accordingly.
(c) Tenant hereby further covenants and agrees to pay as and when due,
Additional Rent, as hereinafter set forth. Nonpayment of the same when due shall
constitute a default under this Lease to the same extent, and shall entitle the
Landlord to the same remedies as nonpayment of Base Rent.
(d) At Landlord's option, if any payment of Base Rent required to be
made by Tenant under the provisions of this Lease is not made by Tenant within
ten (10) days after the due date and Tenant's receipt of written notice of such
non-payment or any other payment that is not made within thirty (30) days of the
due date, Tenant shall pay a one time late charge equal to five percent (5%) of
the amount due. Landlord shall not be required to give Tenant more than two such
notices in any lease year.
4. TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES.
(a) Beginning as of January 1, 2001, Tenant shall pay Landlord as
Additional Rent a sum equal to Tenant's Proportionate Share (as defined below)
of the amount by which Operating Expenses (as defined below) exceed the
Operating Expenses for the Operating Expense Base Year. If the first and/or last
years of the Term shall not coincide with a calendar year, then Tenant's
Proportionate Share of Operating
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Expenses attributable to the partial calendar year shall be prorated on the
basis of the ratio between the number of days of such partial calendar year and
365. During the Initial Term Controllable Operating Expenses in excess of one
hundred and five percent (105%) of the previous calendar year shall be excluded
from Operating Expenses for the purpose of computing the excess described in the
preceding sentence. "Controllable Operating Expenses" shall mean management fees
and salaries. Landlord agrees to use commercially reasonable efforts to
competitively bid all contracts for services. In addition, any cost incurred by
Landlord in monitoring, reporting, mitigating, removing, encapsulating, or
abating hazardous substances, as defined by laws in effect on the date this
Lease is executed, shall be borne by the Landlord and not included as Operating
Expenses except to the extent that such hazardous substances were placed on the
Premises, Building or Land by the Tenant.
(b) "Tenant's Proportionate Share" shall mean the percentage set forth
in the Lease Summary. In the event of a mutually agreed change in the size of
the Premises, expansion of the Premises or additions to the Premises, the
calculation of Tenant's Proportionate Share shall be revised appropriately as of
the date of such modification by utilizing the same formula.
(c) Operating Expenses shall mean and include:
All expenses relating to the Building, the Land and their common
area and, including all costs of operation, maintenance and management therefor,
ad valorem real estate taxes (excluding interest or penalties for late payment)
and the costs, including, without limitation, of legal and consulting fees, of
contesting or attempting to reduce any of the said taxes (but only to the extent
of the reduction achieved), amortization (in accordance with generally accepted
accounting principles)of capital improvements which are required by applicable
law or which will improve the efficiency of operating, managing or maintaining
the Building or which will reduce Landlord's operating expenses or the rate of
increases thereof, the cost of labor, materials, repairs, insurance, utilities,
and services and such other expenses with respect to the operation, maintenance
and management of the Building, the Land and their common areas, all of which
expenses shall be incurred or paid by or on behalf of Landlord or are properly
chargeable to Landlord's operating expenses in accordance with generally
accepted account principles; as applied to the operation, maintenance and
management of a first class building. The foregoing expenses or costs shall be
grossed up, if necessary, to reflect occupancy of ninety five percent (95%) of
the rentable space in the Building. Provided however, the grossing up of
expenses shall not result in Operating Expenses for the subject year being in
excess of the actual amount of Operating Expenses.
Notwithstanding the foregoing, Operating Expenses shall not include:
(1) costs, including marketing costs, legal fees, space planners' fees,
advertising and promotional expenses, and brokerage fees, incurred in connection
with the original construction or development, or original or future leasing, of
the Building, and costs, including permit, license and inspection costs,
incurred with respect to the installation of tenant improvements made for new
tenants in the Building or incurred in renovating or otherwise improving,
decorating, painting or redecorating vacant space for tenants or other occupants
of the Building (excluding, however, such costs relating to any Common Areas or
parking facilities);
(2) except as otherwise set forth in this subsection, depreciation,
interest and principal payments on mortgages and other debt costs, if any,
penalties and interest, costs of capital repairs and alterations, and costs of
capital improvements and equipment;
(3) costs for which the Landlord is reimbursed by any tenant or
occupant of the Building (other than pursuant to a provision of such tenant's or
occupant's lease or agreement which otherwise provides that such tenant or
occupant will pay a certain share of such costs) or by any warranty or guaranty
or by insurance by its carrier or any tenant's carrier or by anyone else, and
electric power costs for which any tenant directly contracts with the local
public service company;
(4) any bad debt loss, rent loss, or reserves for bad debts or rent
loss;
(5) costs associated with the operation of the business of the entity
which constitutes the Landlord, as the same are distinguished from the costs of
operation of the Property (which shall specifically include, but not be limited
to, accounting costs associated with the operation of the Property). Costs
associated with the operation of the business of the entity which constitutes
the Landlord include costs of corporate accounting and legal matters, costs of
defending any lawsuits with any mortgages (except as the actions of the Tenant
may be in issue), costs of selling, syndicating, financing, mortgaging or
hypothecating any of the Landlord's interest in the Property, and costs incurred
in connection with any disputes between Landlord and its employees between
Landlord and Property management, or between Landlord and other tenants or
occupants, and Landlord's general corporate overhead and general and
administrative expenses;
(6) the wages and benefits of any employee who does not devote
substantially all of his or her employed time to the Property unless such wages
and benefits are prorated to reflect time spent on operating and managing the
Property vis-s-vis time spent on matters unrelated to operating and managing the
Property; provided, that in no event shall Operating Expenses for purposes of
this Lease include wages and/or benefits attributable to personnel above the
level of Building manager or Building engineer;
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(7) amount paid as ground rental for the Property by Landlord;
(8) except for a Property management fee charged by Landlord which will
not exceed the market rate, overhead and profit increment paid to the Landlord
or to subsidiaries or affiliates of the Landlord for services in the Building to
the extent the same exceeds the costs of such services rendered by qualified,
first-class unaffiliated third parties on a competitive basis;
(9) any compensation paid to clerks, attendants or other persons in
commercial concessions operated by the Landlord;
(10) rentals and other related expenses incurred in leasing air
conditioning systems, elevators or other equipment which if purchased the cost
of which would be excluded from Operating Expenses as a capital cost under item
(b) above, except equipment not affixed to the Building such as the fitness
center equipment or which is used in providing janitorial or similar services
and, further excepting from this exclusion such equipment rented or leased to
remedy or ameliorate an emergency condition in the Building;
(11) all items and services for which Tenant or any other tenant in the
Building reimburses Landlord (other than pursuant to a provision of such
tenant's or occupant's lease or agreement which is similar to that provided for
in Article Four hereof or which otherwise provides that such tenant or occupant
will pay a certain share of such costs) or which Landlord provides selectively
to one or more tenants without reimbursement;
(12) costs, other than those incurred in ordinary maintenance and
repair, for sculpture, paintings, fountains or other objects of art;
(13) any costs expressly excluded from Operating Expenses elsewhere in
this Lease;
(14) rent for any office space occupied by Property management
personnel to the extent the size or rental rate of such office space exceeds the
size of fair market rental value of office space occupied by management
personnel of comparable buildings in the vicinity of the Building, with
adjustment where appropriate for the size of the applicable project;
(15) costs arising from the gross negligence or willful misconduct of
Landlord or its agents, employees, vendors, contractors, or providers of
materials or services;
(16) costs incurred to comply with laws relating to the removal of
hazardous material (as defined under applicable law) which was in existence in
the Building or on the Property prior to the Commencement Date, and was of such
a nature that a federal, State or municipal governmental authority, if it had
then had knowledge of the presence of such hazardous material, in the state, and
under the conditions that it then existed in the Building or on the Property,
would have then required the removal of such hazardous material or other
remedial or containment action with respect thereto; and costs incurred to
remove, remedy, contain, or treat hazardous material, which hazardous material
is brought into the Building or onto the Property after the date hereof by
Landlord or any tenant of the Building and is of such a nature, at that time,
that a federal, State or municipal governmental authority, if it had then had
knowledge of the presence of such hazardous material, in the state, and under
the conditions, that it then exists in the Building or on the Property, would
have then required the removal of such hazardous material or other remedial or
containment action with respect thereto;
(17) costs arising from Landlord's charitable or political
contributions;
(18) any gifts provided to any entity whatsoever, including, but not
limited to, Tenant, other tenants, employees, vendors, contractors, prospective
tenants and agents; and
(19) the cost of any magazine, newspaper, trade or other subscriptions.
(20) the cost of correcting defects in the construction, structural
components, design or equipping of the Building or the equipment or mechanical
systems of the Building.
(21) the cost of repairs or replacements incurred by reason of fire or
other casualty or caused by the exercise of the right of eminent domain
(including pursuant to Section 10 or 11 of this Lease) whether or not insurance
proceeds or a condemnation award are recovered or adequate for such purposes.
(22) interest, fines or penalties paid by Landlord which are not the
result of action or inaction of Tenant.
(23) any costs related to asbestos or to causing any part of the
Building to be in compliance with the Americans With Disabilities Act (or other
law relating to handicapped persons) or Occupational and Safety Health Act in
effect on the date this Lease is executed.
If any Operating Expense, though paid in one year, relates to more than one
calendar year, at the option of Landlord such expense may be proportionately
allocated among such related calendar years.
(d) The Operating Expense Base Year shall be defined as set forth in
the Lease Summary.
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(e) It is acknowledged and agreed that it will not be possible to
determine the actual amount of the excess (if any) of Operating Expenses for a
given calendar year over Operating Expenses for the Operating Expense Base Year
until after the end of such calendar year. Therefore, until Tenant's liability
for Tenant's Proportionate Share of such excess shall have been finally
determined for a particular calendar year, Tenant shall make payment on account
of such excess as follows:
(i) Commencing as of January 1, 2001 and continuing throughout
the Term (and any renewal or extension thereof), and subject to the limitation
expressed above, Landlord shall make a good faith estimate of Operating Expenses
for such calendar year and Tenant's Proportionate Share thereof (hereinafter
("Estimated Operating Expenses" and "Tenant's Estimated Proportionate Share"),
and Tenant shall pay to Landlord, as Additional Rent with each monthly
installment of Base Rental, an amount equal to one-twelfth (1/12) of Tenant's
Estimated Proportionate Share of the amount by which Estimated Operating
Expenses for the current calendar year are estimated to exceed the Operating
Cost Expense Stop. Such payments for any partial month shall be paid in advance
at the daily rate equal to the monthly payment divided by the number of days in
the month for which the same is due. On or about December 1 prior to each
calendar year in respect of which Tenant shall be obligated to make payments on
account of excess Operating Expenses during the Term (and any renewal of
extension thereof), Landlord shall furnish to Tenant a statement for such
calendar year of Tenant's Estimated Proportionate Share and of Estimated
Operating Expenses and thereupon, subject to the limitations expressed above, as
of such December 1, Tenant shall make payments under this Paragraph 4(e)(l) in
accordance with such statement.
(ii) On or before April 1, 2002 and each April 1 thereafter during
the Term (and any renewal or extension thereof), Landlord shall furnish Tenant
with a statement setting forth the total amount of Tenant's Proportionate Share
of the amount by which Operating Expenses for the preceding calendar year
exceeded the Operating Expenses for the Operating Expense Base Year. If any such
statement shall show an overpayment or underpayment of Tenant's Proportionate
Share of excess Operating Expenses for the preceding calendar year, any
overpayment shall be refunded to Tenant or credited against payments due from
Tenant under this Lease, and the full amount of any underpayment shall be paid
to Landlord by Tenant not later than thirty (30) after such statement shall have
been delivered to Tenant.
(iii) In the event Tenant is required to pay Tenant's Proportionate
Share of Operating Expenses pursuant to this Paragraph 4 Tenant shall have the
right, at Tenant's expense and no more frequently than once per calendar year,
to inspect Landlord's books and records showing Operating Expenses for the
calendar year in question; provided, however, Tenant shall not have the right to
withhold any payments of Tenant's Proportionate Share of excess Operating
Expenses due and payable hereunder the amount of which may be in dispute, and
Tenant must pay the entire amount due and payable hereunder prior to reviewing
Landlord's books and records. In the event Tenant's inspection of Landlord's
books and records reveals a verifiable error in Landlord's computation of
Tenant's Proportionate Share of excess Operating Expenses resulting in an
overpayment by Tenant, Landlord shall reimburse Tenant for such overpayment.
Further, if such inspection reveals an overcharge of more than three percent
(3%), Landlord shall reimburse the cost of such inspection. Landlord's statement
setting forth the total amount of Tenant's Proportionate Share of excess
Operating Expenses furnished to Tenant in accordance with the provisions of this
Paragraph 4 shall be deemed to have been approved by Tenant unless protested by
Tenant in writing within one (1) year after delivery of the Statement or an
amended Statement to Tenant at the Premises.
(f) Any contest by Landlord of ad valorem real estate taxes shall not
relieve Tenant of the obligation to continue to make payments of Tenant's
Proportionate Share of Operating Expenses during the pendency of such a contest;
provided that promptly upon reduction in the amount of any such taxes, Landlord
shall credit Tenant for Tenant's Proportionate Share of such savings, or refund
the same to Tenant if this Lease has expired or terminated.
(g) Landlord will at Landlord's expense (not included in the Tenant
Improvement Allowance) install an electrical check meter (a "Check Meter") for
the Premises as part of the Tenant Improvements. The Check Meter will measure
all electricity supplied to the Premises (i) to operate lights and light
fixtures therein, (ii) to operate equipment and fixtures that are connected to
electrical outlets therein and (iii) to operate any HVAC system or unit that
exclusively serves the Premises (or any portion thereof). Landlord shall pay the
local electrical utility company prior to delinquency for the electricity
supplied to the Premises through the Check Meter. Provided, however, in the
event the amount paid by Landlord to the local electrical utility company for
electricity supplied to the Premises (as measured by the Check Meter) for any
given period of time is greater than the allocable portion of the Electrical
Expense Stop (allocated the Premises for the relevant period of time), Landlord
may submit an invoice to Tenant periodically for the cost of such excess
electricity supplied to the Premises and Tenant shall pay the full invoiced
amount (as Additional Rent) to Landlord within thirty (30) days after Tenant's
receipt of each such invoice. The following formula shall be used to determine
the invoice amount for Tenant's excess electrical usage in the Premises:
Invoice Amount = Total Electrical Costs Per Check Meter - [(Tenant
Proportionate Share x Electrical Expense Stop) x
(Number of Days in Period / Number of Days in Year)]
For example, presuming (for the purpose of this illustration only) that the
Premises Net Rentable Area is 10,000 square feet, that the Check Meter indicates
$2,000.00 of electricity was supplied to the Premises during a given 90-day
period and that the calendar year in which such 90-day period falls contains 365
days,
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Landlord shall be entitled hereunder to send an invoice to Tenant in the amount
of $566.64 for excess electrical usage in the Premises during such 90-day
period, computed as follows:
Invoice Amount = $2,000.00 - [.051 x $98,691.45) x (90 / 365)]
= $2,000.00 - [$5,033.26 x .2466]
= $2,000.00 - $1,241.20
= $758.80
In computing invoices to be sent to Tenant for electricity supplied to the
Premises through the Check Meter, Landlord shall use the same billing rate and
structure as used by the local electrical utility company. Additionally, with
regard to any period of time that Landlord elects to use a Check Meter to ▇▇▇▇
Tenant for excess electricity supplied to the Premises, Landlord also shall use
a Check Meter to ▇▇▇▇ other tenants in the Building for excess electricity
supplied to their respective premises; and in such case, the cost of electricity
supplied to the Premises and to other premises in the Building for which
Landlord separately bills Tenant and other tenants in the Building (i.e., such
electrical costs that exceed the Electrical Expense Stop) shall not be included
in Operating Expenses hereunder. Landlord shall be entitled to ▇▇▇▇ Tenant
pursuant to this Section 4(g) for excess electrical usage in the Premises
determined by Landlord from time to time during the Lease Term.
(h) Base Rent and Additional Rent may from time to time be referred to
herein collectively as "Rent".
5. USE OF PREMISES.
Tenant shall use and occupy the Premises, only for the following
purposes: general office, network operations, lab space, technical space,
storage and other incidental uses. Tenant shall not use or occupy the Premises
for any other purposes or business without the prior written consent of
Landlord. Tenant covenants and agrees to comply with each of the Rules and
Regulations set forth in Exhibit E. Landlord represents and warrants that any
certificate of occupancy for the Building is not violated by the aforementioned
uses, and that such uses are permitted by all applicable governmental laws,
ordinances, rules and regulations. Landlord acknowledges that Tenant will have
no obligation under this Lease to actually occupy the Premises during the Term.
In the event Tenant fails to occupy the Premises during all or any portion of
the Term or in the event Tenant vacates the Premises prior to the expiration or
earlier termination of this Lease, such action or omission, as the case may be,
shall not constitute an event of default hereunder.
6. REPAIRS.
(a) Except as provided herein, Tenant shall keep the interior,
non-structural portions of the Premises in good repair, and Tenant shall upon
the expiration of the term of this Lease, yield and deliver up the Premises in
good and tenantable condition ordinary wear and tear and damage by fire or other
casualty excepted.
(b) In the event that the Landlord shall reasonably deem it necessary
or be required by any governmental authority to repair, alter, remove,
reconstruct or improve any part of the Premises or of the Building in which the
Premises are located (unless the same result from Tenant's act, neglect, default
or mode of operation and the same is not covered by Landlord's insurance in
which event Tenant shall make all such repairs, alterations and improvements),
then the same shall be made by Landlord at Landlord's sole cost and expense with
reasonable dispatch; provided, however, the making of such repairs, alterations
or improvements shall not interfere with Tenant's use of the Premises or a
reduction of the usable square footage in the Premises.
(c) Landlord shall (i) operate, manage and maintain the Building as a
first class office building; (ii) provide services to the common areas thereof
in a manner consistent therewith; and (iii) make all repairs necessary to
maintain the Building in good working order and repair, including, without
limitation, repairs that arise out of or relate to (A) the Building systems and
the structural elements of the Building and the Premises (including, but not
limited to, the heating, ventilation, air conditioning, sanitary, water,
electrical power, lighting, sprinkler, elevator and fire safety systems, toilets
and plumbing facilities, floor slabs, walls, roof and exterior architectural
finish); (B) the negligence or wrongful act(s) of Landlord, its agents,
employees or contractors; or (C) Landlord's breach of its obligations under the
Lease.
7. ALTERATIONS AFTER THE INITIAL IMPROVEMENTS.
Tenant may make non-structural alterations, additions, repairs,
improvements or changes in or to Premises without the prior written consent of
Landlord. All such alterations, additions or improvements (collectively the
"Additions") made by Tenant, not including moveable office furniture and
equipment, which are attached or affixed to the Premises so as to become an
integral part thereof shall become a part of the Premises when made. Tenant
agrees to hold Landlord forever harmless from any and all claims and liabilities
(except those arising out of Landlord's sole negligence or willful misconduct)
which may arise out of or be connected with said improvements, alterations or
additions and agrees that if any contractor,
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subcontractor or materialmen's lien is filed against the Premises or the Land
and Building as a result of Tenant's Additions or other work, Tenant shall cause
the same to be discharged within thirty (30) days after the same are filed. All
such improvements, alterations, additions or installations shall comply with all
insurance requirements and with all laws, ordinances, rules and regulations of
all Governmental Authorities.
8. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign or transfer, this Lease or sublet all or
any part of Premises without having received Landlord's prior written consent,
which consent shall not be withheld by Landlord if the assignee or subtenant is
compatible with the tenant mix of a Class A office building in Landlord's
reasonable discretion. Provided however, Tenant shall have the right to assign
or transfer this Lease, or sublet all or any part of the Premises, to a parent,
affiliate or subsidiary of Tenant or to an entity acquiring all or substantially
all of the assets of Tenant or in connection with a merger or consolidation
without the prior written consent of Landlord. No such written consent or
approval, if granted, shall be deemed to permit any subsequent assignment or
subletting.
(b) Regardless of Landlord's consent, no subletting or assignment shall
release Tenant of Tenant's obligation or alter the primary liability of Tenant
to pay Base Rent, Tenant's Proportionate Share and Additional Rent and to
perform all other obligations to be performed by Tenant hereunder. The
acceptance of rental by Landlord from any other person shall not be deemed to be
a waiver by Landlord of any provision hereof. In the event of default by any
assignee of Tenant or any successor of Tenant in the performance of any of the
terms hereof, Landlord may proceed directly against Tenant without the necessity
of exhausting remedies against such assignee or successor. Landlord may consent
to subsequent assignment or subletting of this Lease or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and such action shall not relieve Tenant of liability under this Lease. Tenant
shall be entitled to retain all profit from any permitted assignment or
subletting.
9. INDEMNIFICATION AND TENANT'S LIABILITY INSURANCE.
(a) Each party shall indemnify and hold harmless the other party from
and against any and all costs, expenses, (including reasonable counsel fees),
liabilities, losses, damages, suits, actions, fines, penalties, claims or
demands of any kind and asserted by or on behalf of any person or Governmental
Authority, arising out of or in any way connected with, and neither party shall
not be liable to the other on account of (i) any failure by the other party to
perform any of the agreements, terms, covenants or conditions of this Lease
required to be performed by the other party (ii) any failure by the other party
to comply with any statutes, ordinances, regulations or orders of any
Governmental Authority, or (iii) any accident, death, or personal injury, or
damage to or loss or theft of property, which shall occur in or about the
Premises occasioned wholly or in part by reason of any act or omission of
Tenant, its agents, contractors, licensees, invitees or employees.
(b) During the term of this Lease or any renewal thereof, Tenant shall
obtain and promptly pay all premiums for general public liability insurance
against claims for personal injury, death or property damage occurring upon, in
or about the Premises with carriers and in amounts reasonably satisfactory to
Landlord but with minimum limits of not less than One Million Dollars
($1,000,000.00) combined single limit on account of bodily injuries or death or
damage to property and all such policies and renewals thereof shall name the
Landlord and any mortgagee of Landlord and the Tenant as additional insureds.
All policies of insurance shall provide (i) that no material change or
cancellation of said policies shall be made without thirty (30) days' prior
written notice to Landlord and Tenant, (ii) that any loss shall be payable
notwithstanding any act or negligence of the Tenant or the Landlord which might
otherwise result in the forfeiture of said insurance, and (iii) that the
insurance company issuing the same shall not have right of subrogation against
the Landlord or Landlord's insurer. On or before the Term Commencement Date of
the term of this Lease, and thereafter not less than fifteen (15) days prior to
the expiration dates of said policy or policies, Tenant shall provide copies of
policies or certificates of insurance evidencing coverages required by this
Lease. All the insurance required under this Lease shall be issued by insurance
companies authorized to do business in the State of Tennessee and reasonably
acceptable to Landlord.
10. FIRE OR OTHER CASUALTY.
(a) If the Premises are partially damaged by fire or other casualty so
that the Premises are not materially unusable by Tenant, the damages shall be
repaired by Landlord and until such repairs shall be substantially completed,
and Rent shall be abated proportionately from the date of such fire or other
casualty according to the part of the Premises which is unusable by Tenant.
Landlord agrees to repair such damage within a reasonable period of time after
receipt of notice of such damage, subject to any delays caused by Force Majeure
Matters. Landlord shall notify Tenant within thirty (30) days following the date
of the casualty of (i) the estimated repair period; and (ii) if Landlord is
entitled to terminate this Lease, whether Landlord elects to do so.
(b) Any thing above to the contrary notwithstanding, if the Premises or
Building are damaged by fire or other casualty and, are rendered substantially
unusable by reason of such fire or other casualty
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and such damage cannot be repaired using reasonable diligence within one hundred
and twenty (120) days either Landlord or Tenant shall have the right to
terminate this Lease. Said right shall be exercised by notice in writing
delivered to Tenant within thirty (30) days from and after notice from the
Landlord to Tenant of the amount of time to restore, to terminate this Lease. In
such event, this Lease and the tenancy hereby created shall cease as of the date
of said casualty. Tenant shall also have the right to terminate this Lease if
Landlord does not fully restore the Premises within one hundred eighty (180)
days following the casualty, or if the Premises are rendered untenantable within
the last twelve (12) months of the Term.
(c) Landlord's liability for the repair of damage resulting from fire
or other casualty shall not exceed in any event the amount of insurance proceeds
actually paid to Landlord by the insurance carrier free and prorated between all
tenants of the Building whose leased premises have suffered damage. Landlord
shall not be liable for any inconvenience or annoyance to Tenant or injury to
the business of Tenant resulting in any way from such damage or the repair
thereof, provided Landlord used reasonable efforts to complete said restoration
in a manner which causes as little inconvenience to Tenant as necessary under
the circumstances.
11. CONDEMNATION.
(a) If the entire Building and Land, any portion thereof which includes
a substantial part of the Premises or such portions which prevent the operation
of the Building on a financially sound basis, shall be taken or condemned by any
condemning authority for any public use or purpose, or should be sold in lieu of
condemnation or if Tenant reasonably determines that it cannot operate its
corporate headquarters and operations from the remaining Premises the term of
this Lease shall end upon, and not before, the date when the possession of the
part so taken shall be required for such use or purpose, and without
apportionment of the condemnation award which shall be the sole property of the
Landlord. Tenant expressly subordinates its interest in any award to the right
of any first deed of trust holder to have its indebtedness satisfied from said
award.
(b) If this Lease is not so terminated upon any such taking or sale and
if a portion of the Premises is affected thereby, the Base Rent payable
hereunder shall be diminished by an equitable amount, and Landlord shall, to the
extent Landlord deems feasible, restore the Building and the Premises to
substantially their former condition, except Landlord's obligation to restore
shall not exceed the amount of condemnation proceeds actually received by
Landlord and prorated between all tenants of the Building whose leased premises
have been damaged.
(c) To the extent Tenant can make a separate claim from the condemning
authority (and not reduce the amount of Landlord's award), Tenant may claim and
receive therefrom Tenant's moving expenses, and the value of Tenant's fixtures
and improvements. Tenant waives any claim it may have for the value of the
unexpired term of this Lease.
12. QUIET ENJOYMENT.
If and so long as Tenant pays the Rent reserved hereunder and other
sums due hereunder and observes and performs all of the covenants, conditions
and provisions on Tenant's part to be observed and performed hereunder within
applicable notice and cure periods, Tenant shall and may peaceably and quietly
have, hold and enjoy the Premises for the entire term hereof, subject to all
provisions of this Lease.
13. SUBORDINATION AND ATTORNMENT.
Without limitation of any of the provisions of this Lease, and provided
Tenant's possession during the Term shall not be distributed so long as Tenant
is not in default under the terms hereof, this Lease is subject and subordinate
to all first mortgages or deeds of trust which may now or hereafter affect the
real property of which the Premises form a part, and to all renewals,
modification, consolidations, replacements and extensions thereof unless
otherwise required by any mortgagee or beneficiary under any deed of trust or
ground lessor. Upon the written request of any such owner, purchaser, lessor or
mortgagee, or beneficiary (the "Beneficiary") under any deed of trust, Tenant
agrees to execute a subordination non-disturbance and attornment agreement
confirming such subordination provided the Beneficiary agrees not to disturb
Tenant's possession during the term of this Lease so long as Tenant is not in
default under the terms hereof. Landlord warrants no mortgages or deeds of trust
currently encumber the Building.
14. WAIVER OF CLAIMS.
Unless caused by their negligence, willful misconduct or breach of this
Lease, Landlord and Landlord's agents, servants, and employees shall not be
liable for, and Tenant hereby releases and relieves Landlord, its agents,
servants, and employees from all liability in connection with any and all loss
of life, personal injury, damage to or loss of property, or invitees, licensees,
visitors, or any other person, firm, corporation or entity, in or about or
arising out of, in or upon the Premises, the Building, or the Land.
15. LANDLORD'S OBLIGATIONS.
Landlord's obligations hereunder shall be binding upon Landlord only
for the period of time that Landlord is in ownership of the Building; and upon
termination of that ownership, Tenant, except as to any
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obligations which have then matured, shall look solely to Landlord's successor
in interest in the Building for the satisfaction of each and every obligation of
Landlord hereunder provided such successor assumes in writing the obligations of
Landlord. Landlord shall provide the Cleaning and Janitorial Services set forth
in Exhibit G and the services set forth on Exhibit H.
16. WAIVER.
The failure or delay on the part of either party to enforce or exercise
at any time any of the provisions, rights or remedies in this Lease shall in no
way be construed to be a waiver thereof, nor in any way to affect the validity
of this Lease or any part hereof, or the right of the party to thereafter
enforce each and every such provision, right or remedy. No waiver of any breach
of this Lease shall be held to be a waiver of any other or subsequent breach.
The receipt by Landlord of Rent, or any other payment by Tenant at a time when
the Rent or the payment of any other sum due hereunder is in default under this
Lease shall not be construed as a waiver of such default. The receipt by
Landlord of a lesser amount than the Rent or any other sum due shall not be
construed to be other than a payment on account of the Rent or any other sums
then due, which may be applied in such manner as Landlord deems appropriate, nor
shall any statement on Tenant's check or any letter accompanying Tenant's check
be deemed an accord and satisfaction. Landlord may accept any such payment
without prejudice to Landlord's right to recover the balance of the Rent due or
to pursue any other remedies provided in this Lease. No act or thing done by
Landlord or Landlord's agents or employees during the Term of this Lease shall
be deemed an acceptance of a surrender of the Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by the
Landlord.
17. DEFAULTS AND REMEDIES.
All rights and remedies of Landlord herein enumerated shall be
cumulative, and none shall exclude any other rights or remedies allowed by law
or in equity. The occurrence of any of the following shall constitute a default
and breach of this Lease by Tenant:
(a) Tenant shall fail, neglect or refuse to pay any installment of Base
Rent promptly within ten (10) days of receipt of Landlord's written notice
(which notice Landlord will not be required to provide more than two times in
any Lease Year, or to pay any other monies agreed to by it to be paid promptly
when and as the same shall become due and payable under the terms hereof; or if
(b) Tenant shall fail, neglect or refuse to keep and perform any of the
other covenants, conditions, stipulations or agreements herein contained, and
such default shall continue for a period of more than thirty (30) days after
notice thereof is given in writing to Tenant by Landlord (provided, however,
that if the cause for giving such notice involves the making of repairs or other
matters reasonably requiring a longer period of time than said thirty (30) day
period, Tenant shall be deemed to have complied with such notice so long as it
has commenced to comply with said notice within said thirty (30) day period and
is diligently prosecuting compliance of said notice);
In the event of any such default or breach of this Lease by Tenant,
Landlord have any or all of the remedies hereunder set forth, and further, in
the event of such default or breach of this Lease by Tenant, the Tenant does
hereby authorize and fully empower Landlord or Landlord's agent to cancel or
annul this Lease at once and re-enter the Premises and remove all persons and
their property therein, and such property may be stored in a public warehouse or
elsewhere at the cost of the Tenant, all without service of notice or resort to
legal process and without being deemed guilty of any manner of trespass and
without prejudice to any remedies which might otherwise be used by Landlord. The
foregoing rights reserved to Landlord may be exercised by Landlord only to the
extent permitted by applicable law.
The Landlord may, however, at its option at any time after Tenant's
default re-enter and take possession of said Premises and remove any property
contained therein without such re-entry working a forfeiture of the Rents to be
paid and the covenants, agreements and conditions to be kept and performed by
Tenant for the full term of this Lease. In such event, Landlord shall have the
right, but not the obligation, to divide or subdivide the Premises in any manner
Landlord may determine and to lease or let the same or portions thereof for such
periods of time and at such rentals and for such use and upon such covenants and
conditions as Landlord may elect at its sole discretion, applying the net
rentals from such letting first to the payment of Landlord's expense incurred in
dispossessing Tenant, including, without limitation, reasonable attorney fees,
and the cost and expense of making such improvements, alterations and repairs in
the Premises as may be necessary in order to enable Landlord to re-let the same,
and to the payment of any brokerage commissions or other necessary expenses of
Landlord in connection with such re-letting. The balance, if any, shall be
applied by Landlord, from time to time, on account of the payments due or
payable by Tenant hereunder with the right reserved to Landlord to bring such
action or proceedings for the recovery of any deficits remaining unpaid as
Landlord may deem favorable from time to time without obligation to await the
end of the term hereof for the final determination of Tenant's account. The
failure of Landlord to re-let the Premises or any part or parts thereof shall
not release or affect Tenant's liability for damages. Landlord may make such
alterations, repairs, replacements and/or decorations in the Premises as
Landlord, in Landlord's sole judgment, considers advisable and necessary for the
purpose of re-letting the Premises; and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. In any actions or proceedings
against
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Tenant for any of the above deficits or "Final Damages", Landlord shall be
entitled to recover reasonable attorneys fees incurred.
Any balance remaining, however, after full payment and liquidation
of Landlord's account as aforesaid, shall be paid to Tenant with the right
reserved to Landlord at any time to give notice in writing to Tenant of
Landlord's election to cancel and terminate this Lease and require Tenant to pay
"Final Damages" upon the giving of such notice and the simultaneous payment by
Tenant to Landlord of "Final Damages" this Lease shall and the obligations
thereunder on the part of either party to the other shall terminate.
"Final Damages" means the present worth of the amount by which
"Final Credits" exceeds "Final Debits." "Final Credits" means the annual rent
that would have been payable from the date on which the above election is
exercised to the date on which the term of this Lease would have expired if this
Lease had not been terminated. "Final Debits" means the fair rental value of the
Premises for the same period. Present worth shall be discounted at a rate equal
to the "Base Rate" on the date on which the election is exercised. The discount
shall be compounded monthly. The "Base Rate" means the Base Rate of SunTrust
Bank of Tennessee ("SunTrust") (or its successor) as publicly announced from
time to time. If SunTrust ceases to publicly announce its base rate, the Base
Rate shall be the average prime rate on short term business loans for the month
prior to the month in which the option is exercised as set forth in the Federal
Reserve Statistical Release published by the Board of Governors of the Federal
Reserve System.
Anything herein to the contrary notwithstanding, nothing herein shall
be construed to cause a waiver of any rights or defenses available to Tenant.
Landlord shall use reasonable efforts to mitigate its damages.
All payments due under this Lease shall be deemed to be due and payable
by Tenant to Landlord with interest thereon from the date that is ten (10) days
after when the particular amount became due to the date of payment thereof to
Landlord. The aforesaid interest shall be the lesser of highest legal rate then
in effect in the State of Tennessee or the "Prime Rate" quoted by the Wall
Street Journal plus two percent (2%) but not more than the maximum permitted by
applicable law.
The term "business day" as used herein shall exclude Saturdays,
Sundays, and any holiday observed by federally chartered banks in the United
States.
18. BANKRUPTCY.
(a) If there shall be filed against Tenant, in any court, pursuant to
any statute, either of the United States or of any state, a petition in
bankruptcy or insolvency or for reorganization or for the appointment of a
receiver or trustee of all or any portion of Tenant's property and Tenant fails
to secure a discharge thereof within ninety (90) days from the date of such
filing, or if Tenant shall voluntarily file any such petition nor make an
assignment for the benefit of creditors or petition for or enter into an
arrangement, then, in any of such events, this Lease, at the option of Landlord,
may be canceled and terminated without service of notice or resort to legal
process. In the event of a termination of this Lease pursuant to this Paragraph,
neither Tenant nor any person claiming through or under Tenant (whether by
virtue of any statute or any order of any court or otherwise) shall be entitled
to acquire or remain in possession of the Premises, as the case may be, and
Landlord shall have no further liability hereunder to Tenant or any other person
and Tenant or any other such person shall forthwith quit and surrender the
Premises. If this Lease shall be so canceled or terminated, Landlord, in
addition to the other rights and remedies of Landlord contained elsewhere in
this Lease, or under any statute or rule of law, may retain as liquidated
damages any Rent, security deposit and any other money received by Landlord from
Tenant or others on behalf of Tenant.
(b) In the event of a proceeding involving Tenant under the Bankruptcy
Code, 11 U.S.A 101 et seq., if this Lease is assumed by Tenant's trustee in
bankruptcy (after such trustee has cured all existing defaults, compensated
Landlord for any loss resulting therefrom and provided adequate assurance of
future performance), then this Lease may not be assigned by the trustee to a
third party, unless such party (a) executes and delivers to Landlord an
agreement in recordable form whereby such party assumes and agrees with Landlord
to discharge all obligations of Tenant under this Lease, including, without
limitation, the provisions of Paragraph 7 relating to the permitted use of the
Premises and the manner of operation thereof; (b) has a net worth and operating
experience at least comparable to that possessed by Tenant named herein as of
the execution of this Lease; and (c) grants Landlord, to secure the performance
of such party's obligations under this Lease, a security interest in such
party's merchandise, inventory, personal property, fixtures, furnishings, and
accounts receivable (and the proceeds of all of the foregoing) with respect to
its operations in the Premises, and in connection therewith, such party shall
execute such security agreements, financing statements and other documents (the
forms of which are to be designated by Landlord) as are necessary to perfect
such lien.
19. TENANT'S REMEDIES.
In the event Landlord shall fail to perform any of its obligations
hereunder, including without limitation, general building appearance,
maintenance and structural repairs, Tenant shall be entitled to perform such
repairs and maintenance as is reasonably necessary and appropriate in order to
cause compliance with Landlord's obligations provided Tenant has first given
Landlord thirty (30) days' written notice or in the event of emergency repairs
or maintenance, such written notice as is reasonable or available
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under the circumstances, but not less than twenty-four (24) hours. Landlord
agrees to reimburse Tenant for the cost and expenses incurred by Tenant in
effecting such repairs or maintenance within ten (10) days of the time that
Tenant submits a written claim for reimbursement to Landlord. Upon Landlord's
failure to so reimburse Tenant within said time period, such reimbursement shall
accrue interest from the date thereof at a rate per annum equal to the maximum
rate permitted in the State of Tennessee. The foregoing remedies of Tenant shall
be in addition to all other remedies which Tenant may have.
20. HOLDING OVER.
In the event Tenant shall fail to surrender possession of the Premises
upon the expiration or sooner termination of this Lease, Tenant shall, at the
Landlord's sole option, be deemed to be occupying the Premises as a tenant from
month to month and shall pay to Landlord, as an occupancy charge, an amount
equal to the sum of 150% of the Base Rent and Tenant's Proportionate Share of
Operating Expenses, paid during the last month prior to the expiration or
earlier termination of this Lease; provided, however, in such event Tenant shall
not be released from any further direct costs, damages or liabilities suffered
by Landlord and occasioned by Tenant's holding over, and Tenant agrees to
indemnify and hold Landlord harmless therefor.
21. ENTIRE AGREEMENT.
This Lease shall constitute the entire agreement of the parties hereto;
all prior agreements between the parties, whether written or oral, are merged
herein and shall be of no force and effect. This Lease cannot be changed,
modified, or discharged orally, but only by an agreement in writing, signed by
the party against whom enforcement of the change, modification, or discharge is
sought.
22. NOTICES.
Wherever in this Lease it shall be required or permitted that notice or
demand be given or secured by either party to this Lease to or on the other
party, such notice or demand shall be deemed to have been duly given or served
if in writing and either personally served, sent by private carrier such as
"Federal Express" or forwarded by Registered or Certified Mail, return receipt
requested, postage prepaid, and addressed as set forth in the Lease Summary.
Each such personally served or private carrier delivered notice shall
be deemed to have been given to or served upon the party to which addressed on
the date the same is received. Each such mailed notice shall be deemed to have
been given to or served upon the party to which addressed on the date which is
three (3) business days after deposit in the United States mail or the next day
if sent by nationally recognized overnight courier. Either party hereto may
change its address to which said notice shall be delivered or mailed by giving
written notice of such change to the other party hereto, as herein provided.
Tenant agrees to use reasonable efforts to send to Landlord's Mortgagee
copies of all notices to Landlord provided Landlord shall have first given
Tenant the name and address of such mortgagee to receive the same.
23. SUCCESSORS.
The respective rights and obligations provided in this Lease shall bind
and shall inure to the benefit of the parties hereto, their legal
representatives, heirs, successors and assigns; provided, however, that no
rights shall inure to the benefit of any successor, subtenant or assignee of
Tenant unless Landlord's written consent for the transfer to such successor,
assignee or subtenant has first been obtained as provided in this Lease.
24. PARKING COMMON AREAS.
(a) During the Lease Term, Tenant shall have, without charge, the
non-exclusive right to use, in common with Landlord, other tenants of the
Building, and their respective guests and invitees, the automobile parking
areas, driveways, and footways located on the Land. Notwithstanding the terms
and provisions in the immediately preceding sentence, Tenant and Tenant's guests
and invitees shall not, at any given time, be entitled to use more than Parking
Ratio as set forth in the Lease Summary. Landlord shall maintain such Parking
Ratio during the term of this Lease. Landlord shall not grant any reserved
parking rights to any party.
(b) As used in this Lease, "Common Areas" shall mean the hallways,
entryways, stairs, elevators, driveways, parking areas, sidewalks, walkways,
loading areas, rest rooms, and all other non-leased areas and facilities in and
about the Building and the Land. Landlord grants Tenant, its employees,
invitees, licensees and visitors a non-exclusive license for the Term of this
Lease to use the Common Areas with others, subject to the terms and conditions
of this Lease.
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25. LANDLORD'S INSURANCE.
Landlord shall, at its sole cost and expense, procure and keep in full
force and effect throughout the term of this Lease, insurance covering the
Building in which the Premises are located. Said insurance shall be equal to the
full replacement cost of the Building, insuring the Building against loss by
fire or other casualty with standard causes of loss special form coverage. Said
insurance shall include "loss of rent" insurance for a period of six (6) months
and shall include the rent due from Tenant for said period under this Lease and
of all other Tenants in the Building. Said insurance shall be purchased from an
insurance company or companies licensed to do business in the State of Tennessee
and shall insure Landlord, Landlord's mortgagee, and the tenants of the
Building, including Tenant, as their interests may appear. Each such policy
shall provide for thirty (30) days' written notice to Tenant and Landlord's
mortgagee of any cancellation.
Landlord and Tenant shall each cause the respective insurance policies
procured by either of them covering the Building (as to Landlord) and the
Premises and their contents (as to Tenant) to be written in a manner so as to
provide the insuring company waives all right of recovery by way of subrogation
against Landlord or Tenant, as the case may be, in connection with any loss of,
or damage covered by, such policies. Landlord shall also have the right to
terminate this Lease if Landlord does not fully restore the Premises within one
hundred eighty (180) days following a fir or other casualty, or if the Premises
are rendered untenantable within last the twelve (12) months of the Term.
Landlord shall also maintain at all times during the Term, commercial general
liability insurance, including contractual liability, in respect of the Building
and all systems and facilities and the conduct or operation of business therein
and thereon, with Tenant as additional insured, with limits of not less than
Three Million Dollars ($3,000,000) combined single limit for bodily injury and
property damage liability in any one occurrence, and (ii) worker's compensation
insurance in statutory limits.
26. HAZARDOUS SUBSTANCES.
(a) The term "Hazardous Substances," as used in this Lease, shall
include, without limitation, flammables, explosives, radioactive materials,
asbestos, polychlorinated biphenyls (PCBs), chemicals known to cause cancer or
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now or
hereafter enacted or promulgated by any governmental authority.
(b) Tenant shall not cause or permit to occur, any violation of any
federal, state, or local law, ordinance, or regulation now or hereafter enacted,
related to environmental conditions on, under, or about the Premises, or arising
from Tenant's use or occupancy of the Premises, including but not limited to,
soil and ground water conditions; or
(c) Tenant shall not use, generate, release, manufacture, refine,
produce, process, store, or dispose of any Hazardous Substance on, under, or
about the Premises, or the transportation to or from the Premises of any
Hazardous Substance except for normal office supplies and except as specifically
disclosed in this Lease.
(d) Tenant shall, at Tenant's own expense, comply with all laws
regulating the use, generation, storage, transportation, or disposal of
Hazardous Substances ("Laws").
(e) Tenant shall, at Tenant's own expense, make all submissions to,
provide all information required by, and comply with all requirements of all
governmental authorities (the "Authorities") under the laws.
(f) Should any Authority or any third party demand that a cleanup plan
be prepared and that a cleanup be undertaken because of any deposit, spill,
discharge, or other releases of Hazardous Substances that occurs during the term
of this Lease, at or from the Premises, and which arises at any time from
Tenant's use or occupancy of the Premises, then Tenant shall, at Tenant's own
expense, prepare and submit the required plans and all related bonds and other
financial assurances; and Tenant shall carry out all such cleanup plans.
(g) Tenant shall promptly provide all information regarding the use,
generation, storage, transportation, or disposal of Hazardous Substances that is
requested by Landlord. If Tenant fails to fulfill any duty imposed under this
Paragraph (d) within a reasonable time, Landlord may do so; and in such case,
Tenant shall cooperate with Landlord in order to prepare all documents Landlord
deems necessary or appropriate to determine the applicability of the Laws to the
Premises and Tenant's use thereof, and for compliance therewith, and Tenant
shall execute all documents promptly upon Landlord's request. No such action by
Landlord and no attempt made by Landlord to mitigate damages under any Law shall
constitute a waiver of any of Tenant's obligations under this Paragraph (g).
(h) Tenant shall indemnify, defend, and hold harmless Landlord, the
manager of the property, and their respective officers, directors,
beneficiaries, shareholders, partners, agents, and employees from all fines,
suits, procedures, claims, and actions of every kind, and all costs associated
therewith (including attorney's and consultants' fees) arising out of or in any
way connected with any deposit, spill, discharge, or other release of Hazardous
Substances that occurs during the term of this Lease, at or from the Premises,
and which arises at any time from Tenant's use or occupancy of the Premises, or
from Tenant's failure to provide all information, make all submissions, and take
all steps required by all Authorities under the Laws and all other environmental
laws.
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(i) Landlord represents there is no asbestos in or about the Premises
or the structural common areas of the Property. Anything in this Lease to the
contrary notwithstanding, unless the same shall arise for reason of the acts or
omissions of Tenant, Tenant shall not be responsible for and shall bear no costs
of sampling and cleanup required of any hazardous material relating to any
portion of the Property and Landlord agrees to indemnify and hold Tenant
harmless therefrom.
(j) The obligations and liabilities under this Paragraph 26 shall
survive the expiration of this Lease.
27. NEGATIVE COVENANTS OF TENANT.
Tenant agrees that it will not do or suffer to be done, any act, matter
or thing actually known to Tenant as objectionable to the fire insurance
companies whereby the fire insurance or any other insurance now in force or
hereafter to be placed on the Premises or any part thereof, or on the Building
of which the Premises may be a part, shall become void or suspended, or whereby
the same shall be rated as a more hazardous risk than at the date when Tenant
received possession hereunder, Tenant agrees to pay to Landlord as Additional
Rent, payable upon demand, any and all increase or increases in premiums on
insurance carried by on the Premises, or any part thereof, or on the Building,
caused in any way by the Tenant's use of the Premises for uses other than
general office uses. Tenant also agrees that it will not place upon or load any
floor of the Building exceeding the load for which the Building was designed
unless it first obtains the prior written consent of the Landlord. Such consent
may be conditioned upon the payment by the Tenant all sums which may be
necessary for any excess of consumption of water and/or electricity as may be
occasioned by the operation of said equipment or machinery. Tenant shall not
install any other equipment of any kind or nature whatsoever which will or may
necessitate any changes, replacements, or additions to or require the use of the
water system, plumbing system, heating system, air conditioning system or the
electrical system of the Premises without the prior written consent of the
Landlord.
28. EMERGENCY REPAIRS.
Landlord reserves the right to stop services on the heating, air
conditioning, elevator, plumbing and electrical systems, when in Landlord's
reasonable judgment, the same is deemed necessary by reason of accident,
emergency or for repairs, alterations, replacements or improvements thereto
provided that except in case of emergency, Landlord will notify Tenant in
advance, if possible, of any such stoppage and, if ascertainable, its estimated
duration, and will proceed with the work necessary to resume such service as
promptly as possible and in a manner and at times, including after business
hours, so as not to unduly interfere with or impair the Tenant's use and
enjoyment of the Premises.
If, for any reason, there is a failure to furnish the facilities,
utilities or services specified in this Lease or a condition exists which
interferes substantially with or prevents Tenant's normal use of the Premises or
any part thereof and Landlord does not immediately commence action restore same
or if so commenced, does not continue such action with reasonable diligence
until same are restored, then, in any such event, and upon the giving of five
(5) days' written notice to Landlord, Tenant shall have the option to furnish
such facilities, utilities, or services for its own account as may reasonably,
under the circumstances, be obtained by Tenant, and Tenant may deduct the cost
thereof from the rent due hereunder. If such interruption of service shall
continue for five (5) consecutive days, the Rent and Additional Rent shall
▇▇▇▇▇, based upon the portion or portions of the Premises affected by such
interruption of service and the degree of adverse effect of the interruption
upon the normal conduct of Tenant's business at the Premises, until such
interruption is remedied. If any such interruption of service shall continue for
more than thirty (30) consecutive days, Tenant may, by written notice to
Landlord given at any time prior to the resumption of service to a reasonable
level, terminate this Lease, and, upon the giving of such notice, this Lease
shall terminate and expire on the date set forth in such notice, which date
shall not be more than ninety (90) days after the date of such notice.
Except in the case of an emergency, Landlord will give Tenant at least
four (4) days prior notice if Landlord intends to interrupt any services
required to be furnished by Landlord.
The foregoing interpretation of or failure to provide services shall
not apply to failure of a provider of utilities to provide the same to the
Building unless it results from some action or inaction of Landlord.
29. ACCESS TO PREMISES.
Landlord, its employees and agents shall have the right to enter the
Premises at all reasonable times (upon prior notice except in emergency) for the
purpose of examining or inspecting the same, showing the same to prospective
purchasers, mortgagees or tenants, and making such alterations, repairs,
improvements or additions to the Premises or to the Building as Landlord may
deem necessary or desirable. If representatives of Tenant shall not be present
to open and permit entry into the Premises at any time when such entry by
Landlord is necessary or permitted hereunder, Landlord, its employees and agents
may enter by means of a master key (or forcibly in the event of an emergency)
without liability to Tenant and without such entry constituting an eviction of
Tenant or termination of this Lease. In the exercise of Landlord's rights
hereunder, Landlord shall use reasonable efforts not to disrupt the operation of
Tenant's business, and shall be liable for any damage incurred in connection
with any such entry by Landlord.
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30. ESTOPPEL CERTIFICATES.
(a) Tenant shall, at any time and from time to time, within thirty (30)
days following written request from Landlord, execute, acknowledge and deliver
to Landlord, a written statement certifying that this Lease is in full force and
effect and unmodified (or, if modified, stating the nature of such
modification), confirming the Commencement Date and expiration date of the Term,
certifying the date to which the Rent reserved hereunder has been paid, and
certifying that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed.
Any such statement may be relied upon by a prospective purchaser or mortgagee of
all or any part of the Building or the Land on which the Building is located.
(b) Landlord shall, at any time and from time to time, within thirty
(30) days following written request from Tenant, execute, acknowledge and
deliver to Tenant a written statement certifying that this Lease is in full
force and effect and unmodified (or, if modified, stating the nature of such
modification), confirming the Commencement Date and expiration date of the Term,
certifying the date to which the Rent reserved hereunder has been paid, and
certifying that there are not, to Landlord's knowledge, any uncured defaults on
the part of Tenant hereunder, or specifying such defaults if any are claimed.
Any such statement may be relied upon by any prospective purchaser of a material
interest in the Tenant or any institutional creditor of Tenant.
31. EXONERATION.
It is covenanted and agreed that no personal liability or
responsibility is assumed by nor shall at any time be asserted or enforceable
against Landlord or any partner, Affiliate of Landlord, parent corporation, or
any officer, director or shareholder thereof, or the successors or assigns of
the foregoing, on account of any covenant, undertaking or agreement in this
Lease contained, all such personal liability and responsibility, if any, being
expressly waived and released, it being understood that Tenant shall look solely
to the interest of the Landlord in the Building for satisfaction of any proven
damage of Tenant in the event of a breach by Landlord hereunder.
32. INTENTIONALLY OMITTED.
33. BROKERS.
Landlord and Tenant warrant to each other that they have dealt and
negotiated solely and only with the Broker (as set forth in the Lease Summary)
for this Lease and with no other broker, firm, company or person.
Tenant and Landlord (for good and valuable consideration) shall
indemnify and hold the other party harmless from and against any and all claims,
suits, proceedings, damages, obligations, liabilities, counsel fees, costs,
losses, expenses, orders and judgments imposed upon, incurred by or asserted
against the other party by reason of the falsity or error of the aforesaid
warranty. The provisions of this Paragraph shall survive the termination of this
Lease.
34. SURRENDER OF PREMISES.
At termination of this Lease by lapse of time or otherwise, Tenant
shall surrender the Premises to Landlord, together with all alterations,
additions, and improvements thereto, in broom clean condition and in good order
and repair except for ordinary wear and tear, damage by fire or other casualty,
and damage for which Tenant is not obligated to make repairs under this Lease,
failing this, Landlord may restore Premises to such condition and Tenant shall
pay the cost thereof. Upon such termination, all installations, alterations,
additions, hardware and improvements, including partitions which may have been
installed by either Landlord or Tenant upon Premises, shall remain upon Premises
and shall be Landlord's property unless otherwise provided for in accordance
with the terms hereof, all without compensation, allowance, or credit, except
that Tenant's moveable trade fixtures, office equipment and furniture shall
remain Tenant's property and Tenant shall have the right prior to such
termination to remove the same. Tenant shall surrender Premises to Landlord at
the end of the term hereof, without notice of any kind, and Tenant waives all
right to any such notice as may be provided under any laws now or hereafter in
effect. The provisions of this Paragraph shall survive the termination of this
Lease.
35. EXHIBITS.
Attached to this Lease, incorporated herein, and made a part hereof,
are Exhibits "A" to "J", inclusive.
36. ARBITRATION. INITIALS:
PGE
-------
RB
-------
(a) Except for the Excluded Issues (as defined herein), any
controversy, dispute or claim arising out of this Lease or the breach or alleged
breach of this Lease shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association currently
in effect (unless the
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parties mutually agree otherwise). The award rendered by the arbitrator or
arbitrators shall be final and any judgment upon the award rendered by the
arbitrator or arbitrators shall be entered in a state court in ▇▇▇▇▇▇▇▇▇▇
County, Tennessee. The party hereunder demanding arbitration of any controversy,
dispute or claim arising out of this Lease or any breach or alleged breach of
this Lease shall file a written notice of such demand with the other party and
with the American Arbitration Association. Such written notice shall be given
not later than sixty (60) days after the controversy, dispute or claim arises or
the breach or alleged breach of this Lease occurs. Any arbitration under or
related to this Lease may include any other party that is or may be involved in
the controversy, dispute, claim or breach or alleged breach that is the subject
matter of the arbitration proceeding. Provided, however, and notwithstanding the
foregoing to the contrary, the following matters and issues (the "Excluded
Issues") shall be excluded from the mandatory arbitration provisions of this
Paragraph 36:
(1) Unless Tenant is disputing the existence of a Tenant default,
Landlord's exercise of its rights and remedies provided for under this Lease
solely to gain possession of the Premises or solely to terminate Tenant's right
of possession to the Premises, which disputes shall be resolved in state court
in ▇▇▇▇▇▇▇▇▇▇ County, Tennessee, subject to appeal pursuant to applicable law;
and
(2) Disputes regarding whether arbitration hereunder of a
particular controversy, dispute or claim arising out of this Lease or the breach
or alleged breach of this Lease is barred by the applicable statute of
limitations specified in Tennessee law, which disputes relating to whether the
statute of limitations is a bar to a particular controversy, dispute or claim
shall be resolved in state court in ▇▇▇▇▇▇▇▇▇▇ County, Tennessee, subject to
appeal pursuant to applicable law.
(b) Except with regard to the Excluded Issues (which shall be resolved
as provided below), Landlord and Tenant hereby irrevocably waive any and all
rights they may have to resolve any controversy, dispute or claim arising out of
this Lease or the breach or alleged breach of this Lease in a manner that is
inconsistent with the provisions of this Paragraph 36.
(c) Neither the parties to this Lease nor the arbitrator or arbitrators
may make any public disclosure of (i) the existence of any controversy, dispute
or claim arising out of this Lease or the breach or alleged breach of this
lease, (ii) the existence of an arbitration proceeding under this Lease or (iii)
the results of any arbitration proceeding under this Lease, unless Landlord and
Tenant both consent in writing to such public disclosure. Provided, however,
this prohibition shall not be deemed or construed to prevent or impede the entry
of any judgment upon an award rendered by the arbitrator or arbitrators in a
state court in ▇▇▇▇▇▇▇▇▇▇ County, Tennessee, as contemplated above.
37. INTENTIONALLY OMITTED.
38. AUTHORITY.
If Tenant is a partnership or corporation, Tenant warrants that the
individual executing this Lease on behalf of said partnership or corporation is
duly authorized to execute and deliver this Lease on behalf of said partnership
or corporation in accordance with the duly adopted resolution of the partners of
the partnership or Board of Directors of said corporation or partnership in
accordance with the bylaws of said corporation, (or under the pertinent
partnership agreements) and that this Lease is binding upon said corporation or
partnership in accordance with its terms.
39. COMPLIANCE WITH LAWS AND ORDINANCES.
Tenant agrees that it will, at its sole cost and expense, promptly
fulfill and comply with all laws, ordinances, regulations and requirements of
the City, County, State and Federal Governments and any and all departments
thereof having jurisdiction over the Building and of the National Board of Fire
Underwriters or any other similar body now or hereafter constituted, affecting
the Tenant's occupancy of the Premises or the business conducted therein. The
foregoing obligation of Tenant shall only apply to the extent that the same
shall affect or be applicable to (i) Tenant's manner of use of the Premises (as
opposed to its mere use thereof for ordinary office purposes), (ii) alterations
and improvements made by Tenant of (iii) a breach by Tenant of its obligations
under this Lease. Tenant may, at its expense (and, if necessary, in the name of
but without expense to, Landlord) contest, by appropriate proceedings diligently
prosecuted, the validity, or applicability to the Premises, of any matter if may
be required to comply with pursuant to this paragraph, and may postpone its
compliance therewith until such contest shall be decided; provided however, that
postponement of such compliance shall not materially adversely affect the
occupancy of the Building by its other tenants.
40. APPLICABLE LAW AND CONSTRUCTION.
The laws of the State of Tennessee shall govern the validity,
performance and enforcement of this Lease. The invalidity or unenforceability of
any provision of this Lease shall not affect or impair any other provision. The
submission of this document to Tenant for examination does not constitute an
offer to lease, or a reservation of or option to lease, and becomes effective
only upon execution and delivery thereof by Landlord and Tenant. All
negotiations, considerations, representations and understandings between the
parties are incorporated in the Lease. Any index preceding this Lease and the
headings of the paragraphs contained herein are for convenience only and do not
define, limit or construe the contents of such articles
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or paragraphs. Whenever herein the singular number is used, the same shall
include the plural, and the neuter gender shall include the masculine and
feminine genders.
IN WITNESS WHEREOF, the parties have executed and delivered this Lease
as of the day and year first above written.
Signed in the Presence of: LANDLORD:
Attest/Witness Landlord: CRESCENT RESOURCES, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------- By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Officer: Regional Vice President
---------------------------
Signed in the Presence of: TENANT:
Attest/Witness Tenant: BLUESTAR COMMUNICATIONS, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇
------------------------------
Officer: Chief Financial Officer
---------------------------
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EXHIBIT A
LANDLORD'S LAND
Land in ▇▇▇▇▇▇▇▇▇▇ County, Tennessee, being ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ Subdivision, Section 17, of record in Plat Book 26, page 141,
Register's Office for ▇▇▇▇▇▇▇▇▇▇ County, Tennessee.
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EXHIBIT B
FLOOR PLAN
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EXHIBIT B
FLOOR PLAN
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EXHIBIT C
FIVE CORPORATE CENTRE
WORKLETTER
LANDLORD: CRESCENT RESOURCES, INC.
TENANT: BLUESTAR COMMUNICATIONS, INC.
BUILDING: FIVE CORPORATE CENTRE
RECITALS
A. This workletter is attached to and forms a part of the certain lease
dated December 31, 1999, (the "Lease"), pursuant to which Landlord has leased to
Tenant certain space (the "Premises") in the Building.
B. The Lease provides for Landlord to make improvements to the Premises
(the "Tenant Improvements"), and Tenant desires to have Landlord make them,
prior to occupancy, upon the terms and conditions contained in this workletter.
1. Definitions. In this workletter, some defined terms are used. They
are (in addition to other defined terms):
(a) Tenant Improvement Allowance: As set forth in Lease Summary and
is to be applied by Landlord to the cost of Tenant Improvements.
(b) Tenant Plans: a drawing of the Premises depicting the lay-out of
all offices, partitions, door locations, types of electrical and data
and telephone outlets, and equipment, complete in form and content and
containing sufficient information and detail to allow for competitive
bidding or negotiated pricing by contractors selected and engaged by
Landlord and which must include the following (references to Tenant
Plans shall also include the Construction Plans for the NOC):
(i) Architectural Wall Plan
(a) Include all general construction notes
(ii) Reflected Ceiling Plan
(iii) Electrical, Telephone and Data Plan
(iv) Finishes Plan
(a) Include door schedule
(v) Details Plan
(a) Include millwork details
(b) Include other specialty items
(c) Estimated construction costs: a preliminary estimate of the
costs of the Tenant Improvements that are depicted on the Tenant
Plans, including all architectural, engineering, contractor, and any
other costs as can be determined from the Tenant Plans.
(d) Construction schedule: a schedule depicting the relative
time frames for various activities related to the construction of the
Tenant Improvements in the Premises.
(e) Tenant Cost proposal: a final estimate of costs of the Tenant
Improvements that are depicted on the Tenant Plans, including all
space planning, architectural, engineering, contractor, and any other
costs, and clearly indicating the cost, if any, that is to be paid by
Tenant pursuant to paragraph 2 (e) of the Lease.
(f) Maximum approved cost: the sum of the Tenant Improvement
Allowance and any additional amount that Tenant has agreed to pay for
the Tenant Improvements.
(g) Cost of the Tenant Improvements: the cost includes, but is
not limited to, the following:
(1) All architectural and engineering fees and expenses,
including but not limited to cost of preparation of Tenant Plans,
working drawings, cost estimates, etc.
(2) All permits and taxes.
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(h) Change order: any change, modification, or addition to the
final Tenant Plans or working drawings after Tenant has approved the
same.
(i) Building Shell Improvements: component elements utilized
in the design and construction of the Tenant Improvements that have
been pre-selected by the Landlord to ensure uniformity of quality,
function, and appearance throughout the Building as set forth on
Schedule 1 attached hereto, the cost of which shall be in addition to
the Tenant Improvement Allowance and shall be borne by Landlord.
2. Project Design and Construction. All work will be performed by
designers and contractors selected and engaged by Landlord.
3. Cost Responsibilities.
(a) Landlord: Landlord will pay up to the amount of the Tenant
Improvement Allowance for the cost of the Tenant Improvements.
(b) Tenant: Tenant will pay (subject to Section 2(e)(1) of the
Lease) for Excess Costs which may include but are not limited to:
(1) The amount by which the maximum Approved Cost exceeds
the Tenant Improvements Allowance.
(2) Tenant-initiated change orders, modifications, or
additions to the Tenant Improvements after the Tenant Plans are
final to the extent not offset by change by change and release
from other cost savings from other change orders.
(3) All costs in excess of the Tenant Improvement Allowance
that are not included in (1) or (2).
4. Landlord's Approval. Landlord, in its sole discretion, may withhold
its approval of any final Tenant Plans, working drawings, or change order that:
(a) Exceeds or adversely affects the structural integrity of the
building, or any part of the heating, ventilating, air conditioning,
plumbing, mechanical, electrical, communication, or other systems of
the building;
(b) Is not approved by the holder of any mortgage or deed of trust
encumbering the building at the time the work is proposed;
(c) Would not be approved by a prudent owner of property similar to
the building;
(d) Violates any agreement that affects the Building or binds
Landlord;
(e) Landlord reasonably believes will increase the cost of operation
or maintenance of any of the systems of the Building; provided
however, it is understood that Tenant may operate for business
twenty-four (24) hours a day, seven (7) days a week on the Premises
and that Tenant will have separately metered HVAC units for its space
or will pay for additional HVAC pursuant to Subsection (b) of
Exhibit H.
(f) Landlord reasonably believes will reduce the market value of the
Premises or the Building at the end of the term;
(g) Does not conform to applicable building code or is not approved
by any governmental, quasi-governmental, or utility authority with
jurisdiction over the Premises; or
(h) Does not conform to the Building Shell Improvements.
5. Schedule of Improvement Activities.
(a) In the event the Tenant Plans are not approved by the parties as
of the date hereof, Tenant shall on or before the date of the Plan
Submission Deadline and NOC Plan Submission Deadline set forth in the
Lease Summary submit to Landlord the construction plans ("Tenant
Plans") for the Tenant Improvements.
(b) Within ten (10) business days after receipt of Tenant's Plans
under (a), Landlord's architect will (if necessary) expeditiously
cause Tenant Plans to be prepared in form sufficient to comply with
local building codes to mechanical, electrical, plumbing and sprinkler
engineering requirements.
(c) After the Tenant's Plans have been completed as set forth in (6)
above. Landlord shall within two (2)business days request bids from
three (3) contractors and shall within seven (7)
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business days after bids are sent out select the Contractor with the
lowest bid to construct the Tenant Improvements. Landlord will
promptly cause to be prepared a preliminary estimate of the cost of
the Tenant Improvements as set forth in the Tenant Plans (the
"estimated construction costs"). If the estimated construction cost is
less than the Tenant Improvement Allowance, the estimated construction
cost will be deemed approved without a required response from Tenant.
If the estimated construction costs are more than the Tenant
Improvement Allowance, Landlord will so notify Tenant in writing and
Tenant will establish the Maximum Approved Cost by either:
(1) Agreeing in writing to pay the amount by which the
estimated construction cost exceeds the Tenant Improvement
Allowance or;
(2) Agreeing to have the final Tenant Plans revised by
Landlord's architect in order to assure that the estimated
construction cost is either:
(A) No more than the Tenant Improvement Allowance; or
(B) Exceeds the Tenant Improvement Allowance by an amount
that Tenant agrees to pay pursuant to (1).
Tenant will give immediate attention to establishing the Maximum Approved Cost
and shall respond to Landlord within three (3) business days. Upon Tenant's
timely fulfillment of its obligations in either clause (1) or clause (2), the
Maximum Approved Cost will be established.
(d) Upon establishment of the Maximum Approved Cost, Landlord
will cause to be prepared and delivered to Tenant the construction
schedule.
(e) Immediately upon approval of the Maximum Approved Cost, Landlord
will cause application to be made to the appropriate governmental
authorities for necessary approvals and building permits. Upon receipt
of the necessary approvals and permits, Landlord will begin
construction of the Tenant Improvements, and complete the same by the
Term Commencement Date.
6. Payment by Tenant. The amount payable by Tenant shall be paid as set
forth in Section 2 of the Lease. Tenant shall receive a credit against Base Rent
for any portion of the Tenant Improvement Allowance that is not used.
7. Change Orders. Tenant may authorize changes to the Tenant
Improvements during construction only by written instructions to Landlord's
representative on a form approved by Landlord. All such changes will be subject
to Landlord's prior written approval in accordance with paragraph 4. Prior to
commencing any change, Landlord will prepare and deliver to Tenant, for Tenant's
approval, a change order setting forth the total cost of such change, which will
include associated architectural, engineering, construction contractor's costs
and fees, completion schedule changes. If Tenant fails to approve such change
order within 5 business days after delivery by Landlord, Tenant will be deemed
to have withdrawn the proposed change and Landlord will not proceed to perform
the change. Upon Landlord's receipt of Tenant's approval, Landlord will proceed
with the change.
8. Completion and Commencement Date. Tenant's obligation for payment of
rent pursuant to the lease will commence on the Rent Commencement Date; however,
the Rent Commencement Date and the date for payment of rent may be delayed on a
day-by-day basis for each day the substantial completion of the Tenant
Improvements are delayed by Landlord or its contractors or agents. The payment
of rent will not be delayed by a delay of substantial completion due to Tenant.
The following are some examples of delays ("Tenant Delay Factors") that will not
affect the Rent Commencement Date and the date on which rent is to commence
under the lease:
(a) Late submissions of preliminary information;
(b) Change orders requested by Tenant that actually cause a delay;
(c) Delays in obtaining construction materials requested by
Tenant that do not conform to the Building Standard Specifications;
(d) Tenant's failure to approve timely any item requiring
Tenant's approval; and
(e) Delays by Tenant according to paragraph 5.
In the event that substantial completion of the Tenant Improvements is delayed
by Landlord, its contractors, or agents, the Commencement Date will be the date
of substantial completion of the Tenant Improvements, subject only to the
completion of Landlord's punch-list items (that is, those items which do not
materially interfere with Tenant's use and enjoyment of the Premises). Landlord
and Tenant will confirm the Commencement Date in accordance with applicable
terms of the lease.
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9. Condition of the Premises.
(a) Prior to the Commencement Date, Tenant will conduct a
walk-through inspection of the Premises with Landlord and prepare a
punch-list of items needing additional work by Landlord. Other than the
items specified in the punch-list and latent defect (as defined below),
by taking possession of the Premises, Tenant will be deemed to have
accepted the Premises in their condition on the date of delivery of
possession and to have acknowledged that Landlord has installed the
Tenant Improvements as required by this workletter and that there are
no items needing additional work or repair. The punch-list will not
include any damage to the Premises caused by Tenant's move-in or early
access, if permitted. Damage caused by Tenant will be repaired or
corrected by Landlord at Tenant's expense. Tenant acknowledges that
neither Landlord nor its agents or employees have made any
representations or warranties as to the suitability or fitness of the
Premises for the conduct of Tenant's business or for any other purpose,
nor has Landlord or its agents or employees agreed to undertake any
alterations or construct any Tenant Improvements to the Premises except
as expressly provided in their lease and this workletter. If Tenant
fails to submit a punch-list to Landlord within thirty (30) days after
the Term Commencement Date, it will be deemed that there are no items
needing additional work or repair. Landlord's contractor will complete
all punch-list items within 30 days or within such additional period as
is reasonably necessary after the walk-through inspection or as soon as
practicable after such walk-through.
(b) A "latent defect" is a defect in the condition of the Premises,
caused by Landlord's failure to construct the Tenant Improvements in a
good and ▇▇▇▇▇▇▇-like manner and in accordance with the working
drawings, which would not ordinarily be observed during a walk-through
inspection. If Tenant notifies Landlord of a latent defect within one
year following the Commencement Date, then Landlord, at its expense,
will repair the latent defect as soon as practicable. Except as set
forth in this paragraph 9, Landlord will have no obligation or
liability to Tenant for latent defects. Landlord shall make available
to Tenant all contractor warranties with regard to Tenant
Improvements.
The terms hereof are approved.
LANDLORD:
CRESCENT RESOURCES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Officer: Regional Vice President
-------------------------------
TENANT:
BLUESTAR COMMUNICATIONS, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇
----------------------------------
Officer: Chief Finance Officer
------------------------------
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SCHEDULE I
1. Building Shell Improvements. Landlord, at Landlord's sole cost without
deduction from the Tenant Improvement Allowance, shall complete the
following as part of the Building Shell Improvements:
- 2' x 2' ceiling grid installed at 8' 10" above the finished floor
- 2' x 2' tegular acoustical ceiling tile (to be stacked on the floor in
the Premises)
- columns wrapped with drywall
- high efficiency 2' x 4', 3 lamp fixtures with 18 cell parabolic lenses
and lights at a ratio of one fixture per 75 square feet of Premises
Net Usable Area (to be stacked on the floor in the Premises)
- low pressure and medium pressure duct work installed on an open plan
- interior VAV boxes installed with thermostats
- perimeter VAV boxes installed to perimeter slot diffusers
- Building standard fire sprinkler system (in accordance with applicable
code requirements), with heads turned up installed on an open plan
- demising walls: Landlord shall pay for the cost of the demising walls
between the Premises and the Common Areas and the cost of the demising
walls between the Premises and other tenant space in the Building
- blinds for exterior windows
- men's and women's restrooms (one each for each floor to be used in
common)
- drinking fountains in common areas
- electric closet for typical Tenant floor
- electronically controlled card key access system to the Building
- slab with conduit to main panel for Tenant's back-up generator.
Connection and generator to be at Tenant's expense and may be paid
from Tenant Improvement Allowance.
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EXHIBIT D
RENT SCHEDULE
Project: Five Corporate Centre
Tenant: BlueStar Communications
------------------------------------------------------------------------------------------------------------------------
Year Net Rate Escalation Expense Stop* Gross Rate** Monthly Rent Annual Rent
------------------------------------------------------------------------------------------------------------------------
1 $ 13.35 0.00% $ 5.65 $ 19.00 $ 76,101.33 $ 913,216.00
------------------------------------------------------------------------------------------------------------------------
2 $ 13.75 3.00% $ 5.65 $ 19.40 $ 77,703.47 $ 932,441.60
------------------------------------------------------------------------------------------------------------------------
3 $ 14.16 3.00% $ 5.65 $ 19.81 $ 79,345.65 $ 952,147.84
------------------------------------------------------------------------------------------------------------------------
4 $ 14.59 3.00% $ 5.65 $ 20.24 $ 81,067.95 $ 972,815.36
------------------------------------------------------------------------------------------------------------------------
5 $ 15.03 3.00% $ 5.65 $ 20.68 $ 82,830.29 $ 993,963.52
------------------------------------------------------------------------------------------------------------------------
Extension Year $ 15.48 3.00% $ 5.65 $ 21.13 $ 84,632.69 $1,015,592.32
------------------------------------------------------------------------------------------------------------------------
1st Renewal Year $ 16.25 5.00% $ 5.65 $ 21.90 $ 87,716.80 $1,052,601.60
------------------------------------------------------------------------------------------------------------------------
2nd Renewal Year $ 16.74 3.00% $ 5.65 $ 22.39 $ 89,679.41 $1,076,152.96
------------------------------------------------------------------------------------------------------------------------
3rd Renewal Year $ 17.24 3.00% $ 5.65 $ 22.89 $ 91,682.08 $1,100,184.96
------------------------------------------------------------------------------------------------------------------------
4th Renewal Year $ 17.76 3.00% $ 5.65 $ 23.41 $ 93,764.85 $1,125,178.24
------------------------------------------------------------------------------------------------------------------------
5th Renewal Year $ 18.29 3.00% $ 5.65 $ 23.94 $ 95,887.68 $1,150,652.16
------------------------------------------------------------------------------------------------------------------------
6th Renewal Year $ 19.20 5.00% $ 5.65 $ 24.85 $ 99,532.53 $1,194,390.40
------------------------------------------------------------------------------------------------------------------------
7th Renewal Year $ 19.78 3.00% $ 5.65 $ 25.43 $101,855.63 $1,222,267.52
------------------------------------------------------------------------------------------------------------------------
8th Renewal Year $ 20.37 3.00% $ 5.65 $ 26.02 $104,218.77 $1,250,625.28
------------------------------------------------------------------------------------------------------------------------
9th Renewal Year $ 20.98 3.00% $ 5.65 $ 26.63 $106,662.03 $1,279,944.32
------------------------------------------------------------------------------------------------------------------------
10th Renewal Year $ 21.61 3.00% $ 5.65 $ 27.23 $109,185.39 $1,310,224.64
------------------------------------------------------------------------------------------------------------------------
*Initial Year Expense Stop Estimate
**Does not reflect increases in operating expenses
The increases in Base Rent as set forth above do not reflect Tenant's obligation
to pay Tenant's proportionate Share of the amount by which Operating Expenses
exceed the Operating Cost Expense stop all as described in Section 4 of the
Lease.
Year one commences on the Term Commencement Date. The original term is years one
through five and four months. Base Rent for the last four (4) months of the
original term after the end of year five shall be the same as for the Rent for
year 5.
The parties understand the Annual rent shall be recomputed after the Operating
Expenses for the Operating Expense Base Year (2000) have been established as
provided in Section 4 of the Lease. The actual Operating Expense stop shall then
be determined by dividing the Operating Expenses by the Building Rentable Area.
The resulting factor shall then be added to the Net Rate as escalated to
determine the Gross Annual Rent.
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EXHIBIT E
RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways, and similar areas
shall not be obstructed nor shall refuse, furniture, boxes or other items be
placed therein by an tenant or its officers, agents, servants, and employees, or
be used for any purpose other than ingress and egress to and from premises in
the Building, or for going from one part of the Building to another part of the
Building. Canvassing, soliciting and peddling in the Building are prohibited.
2. Plumbing, fixtures, and appliances shall be used only for the
purposes for which constructed, and no unsuitable material shall be placed
therein.
3. No signs, directories, posters, advertisements, or notices shall be
painted of affixed on or to any of the windows or doors, or in corridors or
other parts of the Building, except in such color, size, and style, and in such
places, as shall be first approved in writing by Landlord in its discretion.
However, the prohibition in the immediately preceding sentence shall not limit
or restrict any tenant's right to maintain within the premises occupied by such
tenant any signs, directories, posters, advertisements, or notices so long as
such items are not visible from the exterior of the premises occupied by such
tenant or from the Common Areas of the Building. Building standard suite
identification signs will be prepared by landlord at Landlord's expense. Any
change in the identification sign desired by Tenant shall be at Tenant's
expense. Landlord shall have the right to remove all unapproved signs without
notice to any tenant, at the expense of the responsible tenant.
4. No tenant shall do, or permit anything to be done, in or about the
Building, or bring or keep anything therein, that will in any way increase the
rate of fire or other insurance on the Building, or on property kept therein or
otherwise increase the possibility of fire or other casualty.
5. Landlord shall have the power to prescribe the weight and position
of heavy equipment or objects which may overstress any portion of the floor. All
damage done to the Building by the improper placing of such heavy items will be
repaired at the sole expense of the responsible tenant.
6. Each tenant shall notify the Building manager when safes or other
heavy equipment are to be taken in or out of the Building, and the moving shall
be done after written permission is obtained from Landlord on such conditions as
Landlord shall require.
7. All deliveries must be made via the service entrance and service
elevator, when provided, during normal working hours. Landlord's written
approval must be obtained for any delivery after normal working hours.
8. Each tenant shall cooperate with Landlord's employees in keeping
such tenant's premises neat and clean.
9. Each tenant shall not cause or permit any improper noises in the
building, allow any unpleasant odors to emanate from the Premises, or otherwise
interfere, injure or annoy in any way other tenants or persons having business
with them. However, Landlord acknowledges that, if permitted by the applicable
lease, a tenant may operate a food services facility within the premises of such
tenant for the sole use and benefit of the occupants of such premises and that
such food services facility may emit odors normally associated with the
operation of such on-site food services facilities.
10. No animals shall be brought into or kept in or about the Building.
11. When conditions are such that a tenant must dispose of crates,
boxes, etc. on the sidewalk, it will be the responsibility of such tenant to
dispose of same prior to 7:30 a.m. or after 5:30 p.m.
12. No machinery of any kind, other than ordinary office machines such
as typewriters, computers, fax machines, scanners, information processing
systems, copy machines, communications equipment and calculators, shall be
operated in any premises in the Building without the prior written consent of
Landlord, nor shall any tenant use or keep in the Building any inflammable or
explosive fluid or substance (including live Christmas trees and ornaments), or
any illuminating materials. No space heaters or fans shall be operated in the
Building. Landlord agrees Tenant may install separate and maintain the equipment
necessary to operate its business on the Premises.
13. No motorcycles or similar motorized vehicles will be allowed in the
Building.
14. No nails, hooks, or screws shall be driven into or inserted in any
part of the Building, except for hanging decorations or as otherwise approved by
Building maintenance personnel. Notwithstanding the foregoing, a tenant may
decorate the interior of such tenant's premises at such tenant's sole discretion
provided such decorations do not impact the structural integrity of the Building
and cannot be seen from the exterior of the Building or from any Common Areas of
the Building.
15. Landlord has the right to evacuate the Building in the event of an
emergency or catastrophe.
16. No food and/or beverages shall be distributed from any tenant's
office without the prior written approval of the Building manager. But a tenant
may prepare coffee and similar beverages and warm typical luncheon items for the
consumption of such tenant's employees and invitees. Furthermore, Landlord
acknowledges that, if permitted by the applicable lease, a tenant may operate a
food services facility within the premises of such tenant for the sole use and
benefit of the occupants of such premises.
17. No additional locks shall be placed upon any doors without the
prior written consent of Landlord. All necessary keys or access cards or codes
shall be furnished by Landlord, and the same shall be surrendered upon
termination of the applicable lease, and each tenant shall then give Landlord or
Landlord's agent an explanation of the combination of all locks on the doors or
vaults. Replacement key or access cards or codes (i.e., replacements for keys or
access cards or codes previously issued by Landlord) shall be obtained only from
Landlord, and Tenant shall pay to Landlord (as Additional Rent, with thirty (30)
days after Tenant receives an invoice therefor) the actual costs incurred by
Landlord in obtaining and issuing replacement keys or access cards or codes for
keys or access cards or codes previously issued.
18. Tenants will not locate furnishings or cabinets adjacent to
mechanical or electrical access panels or over air conditioning outlets so as to
prevent operating personnel from servicing such units as routine or emergency
access may require. Cost or moving such furnishings for Landlord's access will
be for the responsible tenant's account. The lighting and air conditioning
equipment of the Building will remain the exclusive charge of the Building
designated personnel.
19. Each tenant shall comply with reasonable parking rules and
regulations as may be posted and distributed by Landlord from time to time.
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20. No portion of the building shall be used for the purpose of lodging
rooms.
21. Prior written approval, which shall be at Landlord's sole
discretion, must be obtained for installation of window shades, blinds, drapes,
or any other window treatment of any kind whatsoever. Landlord will control all
internal lighting that may be visible from the exterior of the Building and
shall have the right to change any unapproved lighting, without notice to the
responsible tenant, at the responsible tenant's expense.
22. All Tenant alterations shall be done by Landlord or by licensed
contractors and/or workmen.
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EXHIBIT F
INTENTIONALLY DELETED
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EXHIBIT G
CLEANING AND JANITORIAL SERVICES
LANDLORD SHALL FURNISH CLEANING AND JANITORIAL SERVICES TO THE PREMISES
AS DESCRIBED BELOW:
DAILY (Monday - Friday):
- Sweep, dry mop or vacuum, as appropriate, all floor areas; remove
material such as gum and tar which has adhered to the floor.
- Empty and damp wipe all ash trays, waste baskets and containers,
remove all trash from the leased premises.
- Dust all cleared horizontal surfaces with treated dust cloth,
including furniture, files, telephones, equipment that can be reached
without a ladder.
- Spot wash to remove smudges, marks and fingerprints from such areas
that can be reached without a ladder.
- Clean water fountains, cafeteria tables and chairs.
- Damp mop all non-resilient floors such as terrazzo and ceramic tile.
- Clear freight and passenger elevator cabs and landing doors.
- Clean mirrors, soap dispensers, shelves, wash basins, exposed
plumbing, dispenser and disposal container exteriors, damp wipe all
ledges, toilet stalls and toilet doors.
- Clean toilets and urinals with detergent disinfectants.
- Furnish and refill all soap, toilet, sanitary napkin and towel
dispensers.
- Spot clean carpet stains.
- Wash glass in Building directory, entrance doors and frames.
- Remove all litter from the parking lot and grounds.
WEEKLY:
- Dust vertical blinds and louvers.
- Spot wash interior partition glass and door glass to remove smudge
marks.
- Sweep all stairs areas.
- Dust all baseboards.
- Vacuum or brush all fabric covered chairs.
MONTHLY:
- Scrub and recondition resilient floor areas.
- Wash all stairwell landings and treads.
- Wash all interior glass both sides.
QUARTERLY:
- High dust all horizontal and vertical surfaces not reached in nightly
cleaning.
- Vacuum all ceiling and wall air supply and exhaust diffusers and
grills.
- Wash and polish vertical terrazzo and marble surfaces.
- Bonnet carpeted areas.
SEMI-ANNUALLY:
- Vacuum drapes, cornices and wall hanging.
- Dust all storage areas and shelves and contents.
- Damp wash diffusers, grills, and other such items.
ANNUALLY (or earlier as needed):
- Strip and refinish all resilient floors.
- Wash all building exterior glass both sides.
- Clean light fixtures, reflectors, globes, diffusers and trim.
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- Wash walls in corridors, lounges, classrooms, demonstration areas,
cafeterias, break rooms, washrooms.
- Clean all vertical surfaces not attended to during nightly, weekly,
quarterly or semi-annually cleaning.
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EXHIBIT H
SERVICES TO BE FURNISHED BY LANDLORD
Landlord agrees to furnish Tenant the following services:
(a) Hot and cold water at those points of supply provided for general
use of other tenants in the Building.
(b) Except with regard to any HVAC system or unit that exclusively
serves the Premises (or any portion thereof), which shall be Tenant's, Landlord
shall furnish central heat and air conditioning sufficient for the comfortable
occupancy of the Premises. Provided, however, central heating and air
conditioning service at times other than for "Normal Business Hours" for the
Building (which are 7:00 a.m. to 7:00 p.m. on Mondays through Fridays and 8:00
a.m. to 1:00 p.m. on Saturdays, exclusive of normal business holidays), shall be
furnished only on the written request of Tenant delivered to Landlord on the
following schedule:
(1) For evenings Monday through Friday - prior to 3:00 p.m. on the
day when such service is required;
(2) For Saturday afternoon, Saturday evening and Sunday - prior to
3:00 p.m. on Friday; and
(3) For normal business holidays - prior to the times set forth
above for the last day prior to such holiday.
Tenant shall bear the entire cost (as Additional Rent) of such additional
heating and air conditioning used by Tenant at time other than Normal Business
Hours, and Tenant shall pay such costs within thirty (30) days following demand
by Landlord. The cost to be charged by Landlord to Tenant hereunder for heating
and air conditioning service used by Tenant during times other than Normal
Business hours shall be $35.00 per hour, subject to increase in such hourly rate
from time to time during the Lease Term to reimburse Landlord for increases in
the cost to Landlord of electricity consumed in providing the heating and air
conditioning service.
If heat-generating machines of equipment shall be used in the Premises
by Tenant which affect the temperature otherwise maintained by the Building HVAC
system, Landlord shall have the right (at Landlord's option) to install (or to
require Tenant to install) one or more HVAC systems or units that exclusively
serve the Premises (or the portion thereof where such heat-generating machines
or equipment are located). The cost of any such separate HVAC systems or units
that exclusively serve the Premises, including the cost of installation and the
cost of operation and maintenance thereof, shall be borne by Tenant.
(c) Electrical service to serve the Common Areas and the Premises,
subject to the terms of Paragraph 4(g) herein.
(d) Routine maintenance and electric lighting service for all Common
Areas of the Building in the manner and to the extent deemed by Landlord to be
standard.
(e) Janitorial service, in accordance with the schedule attached hereto
as Exhibit G, Mondays through Fridays, exclusive of normal business holidays;
provided, however, if Tenant's floor covering or other improvements require
special treatment, Tenant shall pay the additional cleaning cost attributable
thereto as Additional Rent upon presentation of a statement therefor by
Landlord.
(f) All Building standard fluorescent and incandescent light bulb
replacement in the Common Areas and all light bulb replacement in the Premises.
Provided, however, Tenant shall promptly pay to Landlord, as Additional Rent,
costs incurred by Landlord in replacing light bulbs, in the Premises (including
the cost of purchasing such light bulbs) if and to the extent such replacement
cost exceeds the replacement cost for Building standard light bulbs. As used
herein, "Building standard light bulbs" shall be deemed to refer to 2' x 4', 3
lamp F40/CW with energy saving ballasts.
(g) Tenant, its employees, and its invitees who have been registered
with Landlord shall have access to the Premises (including elevator service) by
a code or card access system seven (7) days a week, twenty-four (24) hours a
day. Tenant shall receive an allotment of codes or cards for all of its
employees and for its invitees who are registered with Landlord. Landlord shall
bear the cost of each such code or card initially issued, provided Tenant shall
pay to Landlord (as Additional Rent, within thirty (30) days after Tenant
receives an invoice therefor) the actual costs incurred by Landlord in obtaining
and issuing replacement codes or cards for codes or cards previously issued.
Landlord, however, shall have no liability to Tenant, its employees, agents,
invitees or licensees for losses due to theft or burglary or for damages done by
unauthorized persons on the Premises, and Landlord shall not be required to
insure against any such losses. Tenant shall cooperate fully with Landlord's
efforts to maintain security in the Building during times other than Normal
Business Hours and shall follow all regulations promulgated by Landlord with
respect thereto.
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EXHIBIT I
TENANT PLANS
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EXHIBIT J
ADDITIONAL TERMS AND CONDITIONS OF LEASE
1. The following shall be added to the Lease as Section 41:
41. ACCESS TO RISER CABLE. Landlord grants to Tenant the right to install,
repair, maintain and remove its telecommunications equipment (the "Equipment")
in the main aggregate phone closet in the Building, and to access and to use the
vertical and horizontal conduits, risers, and collocation space within the main
aggregate phone closet in the Building. Tenant shall maintain the Equipment as
it deems necessary in its sole discretion. In the event this Lease expires or is
earlier terminated as provided herein. Tenant promptly shall remove the
Equipment, unless Tenant is providing telecommunications services to other
tenants in the Building, in which case Tenant shall be permitted to maintain the
Equipment in the Building. Tenant may solicit other tenants of the Building on a
non-discriminatory basis so long as such solicitation is performed in a
professional manner. Landlord shall provide reasonable security to the main
aggregate phone closet and provide Tenant with access to the main aggregate
phone closet on an as needed basis. Tenant represents and warrants that the rise
cable used in connection with providing telecommunications services to tenants
will not preclude other telecommunications providers from accessing or providing
services to tenants in the Building. Tenant agrees to promptly repair any and
all damage resulting to the Building from tenant's installation or removal of
its equipment.
2. The following shall be added to the Lease as Section 42:
42. FIFTH FLOOR EXPANSION:
Tenant shall have the ongoing right of first opportunity to lease any space
on the Fourth and Fifth Floor of the Building subject to any rights of other
tenants of the Building in effect on the date of this Lease. The Base Rent shall
be the same Rent in effect under this Lease at the time such space is added to
this Lease. In the event Landlord receives a letter of intent by a third party
for all or any portion of the available space on the Fifth Floor. Tenant shall
have seven (7) business days thereafter to sign an amendment to this Lease. The
Amendment shall provide for a Tenant Improvement Allowance equal to $3.60 per
rentable square foot of the additional space multiplied by the number of years
(or fraction thereof) remaining in the Initial Term if the space is "shell"
(previously unconstructed) or $2.00 per rentable space foot if it contains
existing Tenant Improvements. The Tenant Improvements shall be constructed
basically in accordance with the same mechanism as set forth in the Work Letter.
3. The following shall be added as Section 43:
43. ALLOWANCE:
Within thirty (30) days after the Tem Commencement Date, Landlord shall pay
Tenant the sum of $1.00 per rentable square feet of space in the Premises as a
moving allowance (the "Additional Allowance"). Any "Excess Costs" as defined the
Lease shall first be deducted from the Additional Allowance.
4. The following shall be added as Section 44:
44. DIRECTORY:
Landlord shall provide and maintain, at its expense, a Building director
posted in the first (1st) floor lobby of the Building, listing only the names of
the tenants in the Building. Such directory shall be reasonably located for the
convenience of guests and invitees of tenants of the Building. Landlord shall
provide to Tenant, at no charge, its proportionate share of the listings on said
directory. Landlord shall also provide to Tenant all such additional initial and
replacement lists as Tenant shall reasonably require, at Landlord's standard
charge therefor.
5. The following shall be added as Section 45:
45. RULES AND REGULATIONS:
Landlord shall (i) not discriminate against Tenant in enforcing the rules and
regulations, (ii) not unreasonably withhold or delay its consent from Tenant for
any approval required under the rules and regulations, and (iii) exercise its
judgment in good faith in any instance providing for the exercise of its
judgment in the rules and regulations. Landlord shall use reasonable efforts to
secure compliance by all tenants and other occupants with the rules and
regulations.
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