EXHIBIT 10.1
Exhibit 1
STATE OF SOUTH CAROLINA:
COUNTY OF RICHLAND:
OFFICE LEASE
THIS LEASE ("Lease"), made this 1 day of OCTOBER, 2005, by and between AP
SOUTHEAST PORTFOLIO PARTNERS, L.P., a Delaware limited partnership, ("Landlord")
and BIOTEL, INC., A MINNESOTA CORPORATION, ("Tenant"), Provides as follows:
1. BASIC DEFINITIONS AND PROVISIONS. The following basic definitions and
provisions apply to this Lease:
a. PREMISES. Rentable Square Feet: APPROXIMATELY 2,903
Suite: B 450
Building: FONTAINE II
Street Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of Richland
State/Zip Code: South Carolina,
b. TERM. Number of Months: FORTY-TWO (42)
Commencement Date: NOVEMBER 1, 2005
Expiration Date: APRIL 30, 2009
c. PERMITTED USE. General Office Use
d. OCCUPANCY LIMITATION. No more than five (5) persons per
one thousand (1,000) rentable
square feet.
e. BASE RENT. The minimum base rent for the Term is ($129,473.80), payable
in monthly installments on the 1st day of each month in accordance with the
following Base Rent Schedule:
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RATE PER SQUARE MONTHLY
FROM TO FOOT RENT CUMULATIVE RENT
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11/1/2005 4/30/2006 $ 0.00 $ 0.00 $ 0.00
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5/1/2006 4/30/2007 $ 14.50 $ 3,507.79 $ 42,093.50
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5/1/2007 4/30/2008 $ 14.85 $ 3,592.46 $ 43,109.55
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5/1/2008 4/30/2009 $ 15.25 $ 3,689.22 $ 44,270.75
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f. RENT PAYMENT ADDRESS. HIGHWOODS REALTY LIMITED PARTNERSHIP
c/o Highwoods Properties
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tax ID #: ▇▇-▇▇▇▇▇▇▇
g. SECURITY DEPOSIT. N/A
h. BUSINESS HOURS. 8:00 A.m. to 6:00 P.m. Monday through Friday
(excluding National and State holidays).
i. ELECTRICAL SERVICE. No more than 3.5 ▇▇▇▇▇ per usable square foot
for convenience outlets.
j. AFTER HOURS HVAC RATE. Current charge of $35.00 Per hour, per zone,
with a minimum of two (2) hours per
occurrence.
k. PARKING. Unreserved, not to exceed 4.8 SPACES PER 1,000
RENTABLE SQUARE FEET OF THE PREMISES.
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l. ACCESS CARDS: N/A after hour access cards upon commencement.
Current charge of $25.00 per additional card or
replacement card.
m. CONSTRUCTION FEE. The Construction Supervision Fee for
alterations is 5% of the cost of the work. The
construction supervision fee for Tenant
Improvements is set forth in the Workletter
attached as Addendum Number One.
n. NOTICE ADDRESSES.
LANDLORD: HIGHWOODS REALTY LIMITED PARTNERSHIP
c/o Highwoods Properties, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager, Lease Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: HIGHWOODS REALTY LIMITED PARTNERSHIP
c/o Highwoods Properties, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager, Lease Administration
Facsimile #: (▇▇▇) ▇▇▇-▇▇▇▇
TENANT: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Attn.:
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Facsimile #:
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WITH A COPY TO:
BIOTEL, INC.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
North American Industry Classification System (NAICS) Code
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o. BROKER.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
COLLIERS ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
2. LEASED PREMISES.
a. PREMISES. Landlord leases to Tenant and Tenant leases from Landlord the
Premises identified in Section 1a and as more particularly shown on EXHIBIT A,
attached hereto.
b. RENTABLE SQUARE FOOT DETERMINATION. The parties acknowledge that all
square foot measurements are approximate and agree that the square footage
figures in Section 1a shall be conclusive for all purposes with respect to this
Lease.
c. COMMON AREAS. Tenant shall have non-exclusive access to the common
areas of the Building. The common areas generally include space that is not
included in portions of the building set aside for leasing to tenants or
reserved for Landlord's exclusive use, including entrances, hallways, lobbies,
elevators, restrooms, walkways and plazas ("Common Areas").
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Landlord has the exclusive right to (i) designate the Common Areas, (ii) change
the designation of any Common Area and otherwise modify the Common Areas, and
(iii) permit special use of the Common Areas, including temporary exclusive use
for special occasions. Tenant shall not interfere with the rights of others to
use the Common Areas. All use of the Common Areas shall be subject to any rules
and regulations promulgated by Landlord.
3. TERM.
a. COMMENCEMENT AND EXPIRATION DATES. The Lease Term commences on the
Commencement Date and expires on the Expiration Date, as set forth in Section
1b.
b. ADJUSTMENTS TO COMMENCEMENT DATE. The Commencement Date shall be
adjusted as follows:
i. If Tenant requests possession of the Premises prior to the
Commencement Date, and Landlord consents, the Commencement Date
shall be the date of possession. All rent and other obligations
under this Lease shall begin on the date of possession, but the
Expiration Date shall remain the same.
ii. If Landlord, for any reason, cannot deliver possession of the
Premises to Tenant on the Commencement Date, then the
Commencement Date, Expiration Date, and all other dates that may
be affected by their change, shall be revised to conform to the
date of Landlord's delivery of possession of the Premises to
Tenant. Any such delay shall not relieve Tenant of its
obligations under this Lease, and neither Landlord nor
Landlord's agents shall be liable to Tenant for any loss or
damage resulting from the delay in delivery of possession.
c. TERMINATION BY TENANT FOR FAILURE TO DELIVER POSSESSION. In the event
Landlord is unable to deliver possession of the Premises within (90) days after
the original Commencement Date set forth in the first sentence of this Section 2
(excluding any delays resulting from FORCE MAJEURE or caused by Tenant -
"Excused Delays"), then Tenant may terminate this Lease by giving notice to
Landlord within one hundred (100) days of the original Commencement Date
(excluding Excused Delays). Tenant may not terminate the Lease, however, if it
has taken possession of any part of the Premises.
d. DELIVERY OF POSSESSION. Unless otherwise specified in the Workletter
attached as Lease Addendum Number One, "delivery of possession" of the Premises
shall mean the earlier of: (i) the date Landlord has the Premises ready for
occupancy by Tenant as evidenced by a permanent or temporary Certificate of
Occupancy issued by proper governmental authority, or (ii) the date Landlord
could have had the Premises ready had there been no Delays attributable to
Tenant.
e. ADJUSTMENT OF EXPIRATION DATE. If the Expiration Date does not occur on
the last day of a calendar month, then Landlord, at its option, may extend the
Term by the number of days necessary to cause the Expiration Date to occur on
the last day of the last calendar month of the Term. Tenant shall pay Base Rent
and Additional Rent for such additional days at the same rate payable for the
portion of the last calendar month immediately preceding such extension.
f. RIGHT TO OCCUPY. Tenant shall not occupy the Premises until Tenant has
complied with all of the following requirements to the extent applicable under
the terms of this Lease: (i) delivery of all certificates of insurance, (ii)
payment of Security Deposit, (iii) execution and delivery of any required
Guaranty of Lease, and (iv) if Tenant is an entity, receipt of a good standing
certificate from the State where it was organized and a certificate of authority
to do business in the State in which the Premises are located (if different).
Tenant's failure to comply with these (or any other conditions precedent to
occupancy under the terms of this Lease) shall not delay the Commencement Date.
g. COMMENCEMENT AGREEMENT. The Commencement Date, Term, and Expiration
Date may be set forth in a Commencement Agreement similar to EXHIBIT C, attached
hereto, to be prepared by Landlord and executed by the parties.
4. USE.
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a. PERMITTED USE. The Premises may be used only for general office
purposes in connection with Tenant's Permitted Use as defined in Section 1c and
in accordance with the Occupancy Limitation as set forth in Section 1d.
b. PROHIBITED USES. Tenant shall not use the Premises:
i. In violation of any restrictive covenants which apply to the
Premises;
ii. In any manner that constitutes a nuisance or trespass;
iii. In any manner which increases any insurance premiums, or makes
such insurance unavailable to Landlord on the Building; provided
that, in the event of an increase in Landlord's insurance
premiums which results from Tenant's use of the Premises,
Landlord may elect to permit the use and charge Tenant for the
increase in premiums, and Tenant's failure to pay Landlord, on
demand, the amount of such increase shall be an event of
default;
iv. In any manner that creates unusual demands for electricity,
heating or air conditioning; or
v. For any purpose except the Permitted Use, unless consented to by
Landlord in writing.
c. PROHIBITED EQUIPMENT IN PREMISES. Tenant shall not install any
equipment in the Premises that places unusual demands on the electrical, heating
or air conditioning systems ("High Demand Equipment") without Landlord's prior
written consent. No such consent will be given if Landlord determines, in its
opinion, that such equipment may not be safely used in the Premises or that
electrical service is not adequate to support the equipment. Landlord's consent
may be conditioned, without limitation, upon separate metering of the High
Demand Equipment and Tenant's payment of all engineering, equipment,
installation, maintenance, removal and restoration costs and utility charges
associated with the High Demand Equipment and the separate meter. If High Demand
Equipment used in the Premises by Tenant affect the temperature otherwise
maintained by the heating and air conditioning system, Landlord shall have the
right to install supplemental air conditioning units in the Premises with the
cost of engineering, installation, operation and maintenance of the units to be
paid by Tenant. All costs and expenses relating to High Demand Equipment and
Landlord's administrative costs (such as reading meters and calculating
invoices) shall be Additional Rent, payable by Tenant upon demand.
5. RENT.
a. PAYMENT OBLIGATIONS. Tenant shall pay Base Rent and Additional Rent
(collectively, "Rent") on or before the first day of each calendar month during
the Term, as follows:
i. Rent payments shall be sent to the Rent Payment Address set
forth in Section 1f.
ii. Rent shall be paid without previous demand or notice and without
set off or deduction. Tenant's obligation to pay Rent under this
Lease is completely separate and independent from any of
Landlord's obligations under this Lease.
iii. If the Term commences on a day other than the first day of a
calendar month, then Rent for such month shall be (i) prorated
for the period between the Commencement Date and the last day of
the month in which the Commencement Date falls, and (ii) due and
payable on the Commencement Date.
iv. For each Base Rent payment Landlord receives after the tenth
(10th) day of the month and each Additional Rent payment
Landlord receives after its due date, Landlord shall be entitled
to all default remedies provided under the terms of this Lease,
and a late charge in the amount of five percent (5%) of such
Rent due.
v. If Landlord presents Tenant's check to any bank and Tenant has
insufficient funds to pay for such check, then Landlord shall be
entitled to all default
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remedies provided under the terms of this Lease and the maximum
lawful bad check fee or five percent (5%) of the amount of such
check, whichever amount is less.
b. BASE RENT. Tenant shall pay Base Rent as set forth in Section 1e.
c. ADDITIONAL RENT. In addition to Base Rent, Tenant shall pay as rent all
sums and charges due and payable by Tenant under this Lease ("Additional Rent"),
including, but not limited to, the following:
i. Tenant's Proportionate Share of the increase in Landlord's
Operating Expenses as set forth in Lease Addendum Number Two;
ii. Any sales or use tax imposed on rents collected by Landlord or
any tax on rents in lieu of ad valorem taxes on the Building,
even though laws imposing such taxes attempt to require Landlord
to pay the same; provided, however, if any such sales or use tax
are imposed on Landlord and Landlord is prohibited by applicable
law from collecting the amount of such tax from Tenant as
Additional Rent, then Landlord, upon sixty (60) days prior
notice to Tenant, may terminate this Lease; and
iii. Any construction supervision fees in connection with the
construction of Tenant Improvements or alterations to the
Premises.
6. SECURITY DEPOSIT.
a. AMOUNT OF DEPOSIT. Tenant shall deposit with Landlord a Security
Deposit within ten (10) days following the date of this Lease in the amount set
forth in Section 1g, which sum Landlord shall retain as security for the
performance by Tenant of each of its obligations hereunder. The Security Deposit
shall not bear interest.
b. APPLICATION OF DEPOSIT. If Tenant at any time fails to perform any of
its obligations under this Lease, including its Rent or other payment
obligations, its restoration obligations, or its insurance and indemnity
obligations, then Landlord may, at its option, apply the Security Deposit (or
any portion) to cure Tenant's default or to pay for damages caused by Tenant's
default. If the Lease has been terminated, then Landlord may apply the Security
Deposit (or any portion) against the damages incurred as a consequence of
Tenant's breach. The application of the Security Deposit shall not limit
Landlord's remedies for default under the terms of this Lease. If Landlord
depletes the Security Deposit, in whole or in part, prior to the Expiration Date
or any termination of this Lease, then Tenant shall restore immediately the
amount so used by Landlord.
c. REFUND OF DEPOSIT. Unless Landlord uses the Security Deposit to cure a
default of Tenant, to pay damages for Tenant's breach of the Lease, or to
restore the Premises to the condition to which Tenant is required to leave the
Premises upon the expiration or any termination of the Lease, then Landlord
shall, within thirty (30) days after the Expiration Date or any termination of
this Lease, refund to Tenant any funds remaining in the Security Deposit. Tenant
may not credit the Security Deposit against any month's Rent.
7. SERVICES BY LANDLORD.
a. BASE SERVICES. Provided that Tenant is not then in default, Landlord
shall cause to be furnished to the Building, or as applicable, the Premises, in
common with other tenants the following services:
i. Water (if available from city mains) for drinking, lavatory and
toilet purposes.
ii. Electricity (if available from the utility supplier) for the
building standard fluorescent lighting and for the operation of
general office machines, such as electric typewriters, desk top
computers, dictating equipment, adding machines and calculators,
and general service non-production type office copy machines;
provided that Landlord shall have no obligation to provide more
than the amount of power for convenience outlets and the number
of electrical circuits as set forth in Section 1i.
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iii. Operatorless elevator service.
iv. Building standard fluorescent lighting composed of 2' x 4'
fixtures; Tenant shall service, replace and maintain at its own
expense any incandescent fixtures, table lamps, or lighting
other than the building standard fluorescent light, and any
dimmers or lighting controls other than controls for the
building standard fluorescent lighting.
v. Heating and air conditioning for the reasonably comfortable use
and occupancy of the Premises during Business Hours as set forth
in Section 1h; provided that, heating and cooling conforming to
any governmental regulation prescribing limitations thereon
shall be deemed to comply with this service.
vi. After Business Hours, weekend and holiday heating and air
conditioning at the After Hours HVAC rate set forth in Section
1j, with such charges subject to commercially reasonable annual
increases as determined by Landlord.
vii. Janitorial services five (5) days a week (excluding National and
State holidays) after Business Hours.
viii. A reasonable pro-rata share of the unreserved parking spaces of
the Building, not to exceed the Parking specified in Section 1k,
for use by Tenant's employees and visitors in common with the
other tenants and their employees and visitors.
ix. A reasonable number of after hour access cards, specified in
Section 11, to the Premises upon the Commencement Date. Should
Tenant require additional cards, or require replacement cards, a
charge will be assessed as specified in Section 1l, for each
additional card or replacement card.
b. LANDLORD'S MAINTENANCE. Landlord shall make all repairs and
replacements to the Building (including Building fixtures and equipment), Common
Areas and Building Standard Improvements in the Premises, except for repairs and
replacements that Tenant must make under Section 8. Landlord's maintenance shall
include the roof, foundation, exterior walls, interior structural walls, all
structural components, and all Building systems, such as mechanical, electrical,
HVAC, and plumbing. Repairs or replacements shall be made within a reasonable
time (depending on the nature of the repair or replacement needed) after
receiving notice from Tenant or Landlord having actual knowledge of the need for
a repair or replacement.
c. No ABATEMENT. There shall be no abatement or reduction of Rent by
reason of any of the foregoing services not being continuously provided to
Tenant. Landlord shall have the right to shut down the Building systems
(including electricity and HVAC systems) for required maintenance and safety
inspections, and in cases of emergency.
d. TENANT'S OBLIGATION TO REPORT DEFECTS. Tenant shall report to Landlord
immediately any defective condition in or about the Premises known to Tenant and
if such defect is not so reported and such failure to promptly report results in
other damage, Tenant shall be liable for same.
e. LIMITATION ON LANDLORD'S LIABILITY. Landlord shall not be liable to
Tenant for any damage caused to Tenant and its property due to the Building or
any part or appurtenance thereof being improperly constructed or being or
becoming out of repair, or arising from the leaking of gas, water, sewer or
steam pipes, or from problems with electrical service.
8. TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES.
a. ACCEPTANCE OF PREMISES. Subject to the terms of the attached
Workletter, if any, Tenant's occupancy of the Premises is Tenant's
representation to Landlord that (i) Tenant has examined and inspected the
Premises, (ii) finds the Premises to be as represented by Landlord and
satisfactory for Tenant's intended use, and (iii) constitutes Tenant's
acceptance of the Premises "as is". Landlord makes no representation or warranty
as to the condition of the Premises except as may be specifically set forth in
the Workletter.
b. MOVE-IN OBLIGATIONS. Tenant shall schedule its move-in with the
Landlord's Property Manager. Unless otherwise approved by Landlord's Property
Manager, move-in shall not ▇▇▇▇
▇
place during Business Hours. During Tenant's move-in, a representative of Tenant
must be on-site with Tenant's moving company to insure proper treatment of the
Building and the Premises. Elevators, entrances, hallways and other Common Areas
must remain in use for the general public during business hours. Any specialized
use of elevators or other Common Areas must be coordinated with Landlord's
Property Manager. Tenant must properly dispose of all packing material and
refuse in accordance with the Rules and Regulations. Any damage or destruction
to the Building or the Premises due to moving will be the sole responsibility of
Tenant.
c. TENANT'S MAINTENANCE. Tenant shall: (i) keep the Premises and fixtures
in good order; (ii) make repairs and replacements to the Premises or Building
needed because of Tenant's misuse or negligence; (iii) repair and replace
Non-Standard Improvements, including any special equipment or decorative
treatments, installed by or at Tenant's request that serve the Premises (unless
the Lease is ended because of casualty loss or condemnation); and (iv) not
commit waste.
d. ALTERATIONS TO PREMISES. Tenant shall make no structural or interior
alterations to the Premises. If Tenant requests such alterations, then Tenant
shall provide Landlord's Property Manager with a complete set of construction
drawings. If Landlord consents to the alterations, then the Property Manager
shall determine the actual cost of the work to be done (to include a
construction supervision fee to be paid to Landlord in the amount set forth in
Section 1l). Tenant may then either agree to pay Landlord to have the work done
or withdraw its request for alterations. All such alterations are subject to the
prior written approval of Landlord.
e. RESTORATION OF PREMISES. At the expiration or earlier termination of
this Lease, Tenant shall (i) deliver each and every part of the Premises in good
repair and condition, ordinary wear and tear and damage by insured casualty
excepted, and (ii) restore the Premises at Tenant's sole expense to the same
condition as existed at the Commencement Date, ordinary wear and tear and damage
by insured casualty excepted. If Tenant has required or installed Non-Standard
Improvements, such improvements shall be removed as part of Tenant's restoration
obligation. Landlord, however, may elect to require Tenant to leave any
Non-Standard Improvements in the Premises unless at the time of such
Non-Standard Improvements were installed, Landlord agreed in writing that Tenant
could remove such improvements. Tenant shall repair any damage caused by the
removal of any Non-Standard Improvements. "Non-Standard Improvements" means such
items as (i) High Demand Equipment and separate meters, (ii) all wiring and
cabling from the point of origin to the termination point, (iii) raised floors
for computer or communications systems, (iv) telephone equipment, security
systems, and UPS systems, (iv) equipment racks, (v) alterations installed by or
at the request of Tenant after the Commencement Date, and (vi) any other
improvements that are not part of the Building Standard Improvements.
f. LANDLORD'S PERFORMANCE OF TENANT'S OBLIGATIONS. If Tenant does not
perform its maintenance or restoration obligations in a timely manner,
commencing the same within five (5) days after receipt of notice from Landlord
specifying the work needed, and thereafter diligently and continuously pursuing
the work until completion, then Landlord shall have the right, but not the
obligation, to perform such work. Any amounts expended by Landlord on such
maintenance or restoration shall be Additional Rent to be paid by Tenant to
Landlord within thirty (30) days after demand.
g. CONSTRUCTION LIENS. Tenant shall have no power to do any act or make
any contract that may create or be the foundation of any lien, mortgage or other
encumbrance upon the reversionary or other estate of Landlord, or any interest
of Landlord in the Premises. NO CONSTRUCTION LIENS OR OTHER LIENS FOR ANY LABOR,
SERVICES OR MATERIALS FURNISHED TO THE PREMISES SHALL ATTACH TO OR AFFECT THE
INTEREST OF LANDLORD IN AND TO THE PREMISES OR THE BUILDING. Tenant shall keep
the Premises and the Building free from any liens arising out of any work
performed, materials furnished, or obligations incurred by or on behalf of
Tenant. Should any lien or claim of lien be filed against the Premises or the
Building by reason of any act or omission of Tenant or any of Tenant's agents,
employees, contractors or representatives, then Tenant shall cause the same to
be canceled and discharged of record by bond or otherwise within ten (10) days
after the filing thereof. Should Tenant fail to discharge the lien within ten
(10) days, then Landlord may discharge the lien. The amount paid by Landlord to
discharge the lien (whether directly or by bond), plus all administrative and
legal costs incurred by Landlord, shall be Additional Rent payable on demand.
The remedies provided herein shall be in addition to all other remedies
available to Landlord under this Lease or otherwise.
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9. PROPERTY OF TENANT.
a. PROPERTY TAXES. Tenant shall pay when due all taxes levied or assessed
upon Tenant's equipment, fixtures, furniture, leasehold improvements and
personal property located in the Premises.
b. REMOVAL. Provided Tenant is not in default, Tenant may remove all
fixtures and equipment which it has placed in the Premises; provided, however,
Tenant must repair all damages caused by such removal. If Tenant does not remove
its property from the Premises upon the expiration or earlier termination (for
whatever cause) of this Lease, such property shall be deemed abandoned by
Tenant, and Landlord may dispose of the same in whatever manner Landlord may
elect without any liability to Tenant.
10. SIGNS. Tenant may not erect, install or display any sign or
advertising material upon the exterior of the Building or Premises (including
any exterior doors, walls or windows) without the prior written consent of
Landlord, which consent may be withheld in Landlord's sole discretion. Door and
directory signage shall be provided and installed by the Landlord in accordance
with building standards at Tenant's expense, unless otherwise provided in the
Workletter attached as Lease Addendum Number One.
11. ACCESS TO PREMISES.
a. TENANT'S ACCESS. Tenant, its agents, employees, invitees, and guests,
shall have access to the Premises and reasonable ingress and egress to common
and public areas of the Building twenty-four hours a day, seven days a week;
provided, however, Landlord by reasonable regulation may control such access for
the comfort, convenience, safety and protection of all tenants in the Building,
or as needed for making repairs and alterations. Tenant shall be responsible for
providing access to the Premises to its agents, employees, invitees and guests
after business hours and on weekends and holidays, but in no event shall
Tenant's use of and access to the Premises during non-business hours compromise
the security of the Building.
b. LANDLORD'S ACCESS. Landlord shall have the right, at all reasonable
times and upon reasonable oral notice, either itself or through its authorized
agents, to enter the Premises (i) to make repairs, alterations or changes as
Landlord deems necessary, (ii) to inspect the Premises, mechanical systems and
electrical devices, and (iii) to show the Premises to prospective mortgagees and
purchasers. Within one hundred eighty (180) days prior to the Expiration Date,
Landlord shall have the right, either itself or through its authorized agents,
to enter the Premises at all reasonable times to show prospective tenants.
c. EMERGENCY ACCESS. Landlord shall have the right to enter the Premises
at any time without notice in the event of an emergency.
12. TENANT'S COMPLIANCE.
a. LAWS. Tenant shall comply with all applicable laws, ordinances and
regulations affecting the Premises, whether now existing or hereafter enacted.
b. RULES AND REGULATIONS. Tenant shall comply with the Rules and
Regulations attached as EXHIBIT B. The Rules and Regulations may be modified
from time to time by Landlord, effective as of the date delivered to Tenant or
posted on the Premises, provided such rules are uniformly applicable to all
tenants in the Building. Any conflict between this Lease and the Rules and
Regulations shall be governed by the terms of this Lease.
13. ADA COMPLIANCE.
a. TENANT'S COMPLIANCE. Tenant, at Tenant's sole expense, shall comply
with all laws, rules, orders, ordinances, directions, regulations and
requirements of federal, state, county and municipal authorities now in force,
which shall impose any duty upon Landlord or Tenant with respect to the use or
occupation of the Premises or alteration of the Premises to accommodate persons
with special needs, including using all reasonable efforts to comply with The
Americans With Disabilities Act (the "ADA").
b. LANDLORD'S COMPLIANCE. Landlord, at Landlord's sole expense, shall use
all reasonable efforts to meet the requirements of the ADA as it applies to the
Common Areas and
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restrooms of the Building; but Landlord shall have no responsibility for ADA
compliance with respect to the Premises. Landlord shall not be required to make
changes to the Common Areas or restrooms of the Building to comply with ADA
standards adopted after construction of the Building unless specifically
required to do so by law.
c. ADA NOTICES. If Tenant receives any notices alleging a violation of ADA
relating to any portion of the Building or Premises (including any governmental
or regulatory actions or investigations regarding non-compliance with ADA), then
Tenant shall notify Landlord in writing within ten (10) days of such notice and
provide Landlord with copies of any such notice.
14. INSURANCE REQUIREMENTS.
a. TENANT'S LIABILITY INSURANCE. Throughout the Term, Tenant, at its sole
cost and expense, shall keep or cause to be kept for the mutual benefit of
Landlord, Landlord's Property Manager, (presently HIGHWOODS REALTY LIMITED
PARTNERSHIP and its affiliates) and Tenant, Commercial General Liability
Insurance (1986 ISO Form or its equivalent) with a combined single limit, each
Occurrence and General Aggregate-per location of at least TWO MILLION DOLLARS
($2,000,000), which policy shall insure against liability of Tenant, arising out
of and in connection with Tenant's use of the Premises, and which shall insure
the indemnity provisions contained in this Lease. Not more frequently than once
every three (3) years, Landlord may require the limits to be increased if in its
reasonable judgment (or that of its mortgagee) the coverage is insufficient.
b. TENANT'S PROPERTY INSURANCE. Tenant shall also carry the equivalent of
ISO Special Form Property Insurance on Tenant's Property for full replacement
value and with coinsurance waived. For purposes of this provision, "Tenant's
Property" shall mean Tenant's personal property and fixtures, and any
Non-Standard Improvements to the Premises. Tenant shall neither have, nor make,
any claim against Landlord for any loss or damage to the Tenant's Property,
regardless of the cause of the loss or damage.
c. CERTIFICATES OF INSURANCE. Prior to taking possession of the Premises,
and annually thereafter, Tenant shall deliver to Landlord certificates or other
evidence of insurance satisfactory to Landlord. All such policies shall be
non-assessable and shall contain language to the extent obtainable that: (i) any
loss shall be payable notwithstanding any act or negligence of Landlord or
Tenant that might otherwise result in forfeiture of the insurance, (ii) that the
policies are primary and non-contributing with any insurance that Landlord may
carry, and (iii) that the policies cannot be canceled, non-renewed, or coverage
reduced except after thirty (30) days' prior notice to Landlord. If Tenant fails
to provide Landlord with such certificates or other evidence of insurance
coverage, Landlord may obtain such coverage and the cost of such coverage shall
be Additional Rent payable by Tenant upon demand.
d. INSURANCE POLICY REQUIREMENTS. Tenant's insurance policies required by
this Lease shall: (i) be issued by insurance companies licensed to do business
in the state in which the Premises are located with a general policyholder's
ratings of at least A- and a financial rating of at least VI in the most current
Best's Insurance Reports available on the Commencement Date, or if the Best's
ratings are changed or discontinued, the parties shall agree to a comparable
method of rating insurance companies; (ii) name Landlord as an additional
insured as its interest may appear [other landlords or tenants may be added as
additional insureds in a blanket policy]; (iii) provide that the insurance not
be canceled, non-renewed or coverage materially reduced unless thirty (30) days
advance notice is given to Landlord; (iv) be primary policies; (v) provide that
any loss shall be payable notwithstanding any gross negligence of Landlord or
Tenant which might result in a forfeiture thereunder of such insurance or the
amount of proceeds payable; (vi) have no deductible exceeding TEN THOUSAND
DOLLARS ($10,000), unless approved in writing by Landlord; and (vii) be
maintained during the entire Term and any extension terms.
e. LANDLORD'S PROPERTY INSURANCE. Landlord shall keep the Building,
including the improvements (but excluding Tenant's Property), insured against
damage and destruction by perils insured by the equivalent of ISO Special Form
Property insurance in the amount of the full replacement value of the Building.
f. MUTUAL WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Landlord hereby releases and waives unto Tenant (including all
partners, stockholders, officers, directors, employees and agents thereof), its
successors and assigns, and Tenant hereby releases and waives unto Landlord
(including all partners, stockholders,
9
officers, directors, employees and agents thereof), its successors and assigns,
all rights to claim damages for any injury, loss, cost or damage to persons or
to the Premises or any other casualty, as long as the amount of such injury,
loss, cost or damage has been paid either to Landlord, Tenant, or any other
person, firm or corporation, under the terms of any Property, General Liability,
or other policy of insurance, to the extent such releases or waivers are
permitted under applicable law. As respects all policies of insurance carried or
maintained pursuant to this Lease and to the extent permitted under such
policies, Tenant and Landlord each waive the insurance carriers' rights of
subrogation.
15. INDEMNITY. Subject to the insurance requirements, releases and mutual
waivers of subrogation set forth in this Lease, Tenant agrees as follows:
a. INDEMNITY. Tenant shall indemnify and hold Landlord harmless from and
against any and all claims, damages, losses, liabilities, lawsuits, costs and
expenses (including attorneys' fees at all tribunal levels) arising out of or
related to (i) any activity, work, or other thing done, permitted or suffered by
Tenant in or about the Premises or the Building, (ii) any breach or default by
Tenant in the performance of any of its obligations under this Lease, or (iii)
any act or neglect of Tenant, or any officer, agent, employee, contractor,
servant, invitee or guest of Tenant.
b. DEFENSE OBLIGATION. If any such action is brought against Landlord,
then Tenant, upon notice from Landlord, shall defend the same through counsel
selected by Landlord's insurer, or other counsel acceptable to Landlord. The
provisions of this Section shall survive the termination of this Lease.
16. QUIET ENJOYMENT. Tenant shall have quiet enjoyment and possession of
the Premises provided Tenant promptly and fully complies with all of its
obligations under this Lease. No action of Landlord or other tenants working in
other space in the Building, or in repairing or restoring the Premises, shall be
deemed a breach of this covenant, nor shall such action give to Tenant any right
to modify this Lease either as to term, rent payables or other obligations to be
performed.
17. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE; AND ESTOPPEL CERTIFICATE.
a. SUBORDINATION AND ATTORNMENT. Tenant agrees to execute within ten (10)
days after request to do so from Landlord or its mortgagee an agreement:
i. Making this Lease superior or subordinate to the interests of
the mortgagee;
ii. Agreeing to attorn to the mortgagee;
iii. Giving the mortgagee notice of, and a reasonable opportunity
(which shall in no event be less than thirty (30) days after
notice thereof is delivered to mortgagee) to cure any Landlord
default and agreeing to accept such cure if effected by the
mortgagee;
iv. Permitting the mortgagee (or other purchaser at any foreclosure
sale), and its successors and assigns, on acquiring Landlord's
interest in the Premises and the Lease, to become substitute
Landlord hereunder, with liability only for such Landlord
obligations as accrue after Landlord's interest is so acquired;
v. Agreeing to attorn to any successor Landlord; and
vi. Containing such other agreements and covenants on Tenant's part
as Landlord's mortgagee may reasonably request.
b. NON-DISTURBANCE. Tenant's obligation to subordinate its interests or
attorn to any mortgagee is conditioned upon the mortgagee's agreement not to
disturb Tenant's possession and quiet enjoyment of the Premises under this Lease
so long as Tenant is in compliance with the terms of the Lease.
c. ESTOPPEL CERTIFICATES. Tenant agrees to execute within five (5)
business days after request, and as often as requested, estoppel certificates
confirming any factual matter requested by Landlord which is true and is within
Tenant's knowledge regarding this Lease, and
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the Premises, including but not limited to: (i) the date of occupancy, (ii)
Expiration Date, (iii) the amount of Rent due and date to which Rent is paid,
(iii) whether Tenant has any defense or offsets to the enforcement of this Lease
or the Rent payable, (iv) any default or breach by Landlord, and (v) whether
this Lease, together with any modifications or amendments, is in full force and
effect. Tenant shall attach to such estoppel certificate copies of any
modifications or amendments to the Lease.
18. ASSIGNMENT - SUBLEASE.
a. LANDLORD CONSENT. Tenant may not assign or encumber this Lease or its
interest in the Premises arising under this Lease, and may not sublet all or any
part of the Premises without first obtaining the written consent of Landlord,
which consent shall not be withheld unreasonably. Factors which Landlord may
consider in deciding whether to consent to an assignment or sublease include
(without limitation), (i) the creditworthiness of the assignee or sublessee,
(ii) the proposed use of the Premises, (iii) whether there is other vacant space
in the Building, (iv) whether the assignee or sublessee will vacate other space
owned by Landlord, (v) whether Landlord is negotiating with the proposed
sublessee or assignee for a lease of other space owned by Landlord, and (vi) any
renovations to the Premises or special services required by the assignee or
sublessee. Landlord will not consent to an assignment or sublease that might
result in a use that conflicts with the rights of any existing tenant. One
consent shall not be the basis for any further consent.
b. DEFINITION OF ASSIGNMENT. For the purpose of this Section 18, the word
"assignment" shall be defined and deemed to include the following: (i) if Tenant
is a partnership, the withdrawal or change, whether voluntary, involuntary or by
operation of law, of partners owning thirty percent (30%) or more of the
partnership, or the dissolution of the partnership; (ii) if Tenant consists of
more than one person, an assignment, whether voluntary, involuntary, or by
operation of law, by one person to one of the other persons that is a Tenant;
{iii) if Tenant is a corporation, any dissolution or reorganization of Tenant,
or the sale or other transfer of a controlling percentage (hereafter defined) of
capital stock of Tenant other than to an affiliate or subsidiary or the sale of
fifty-one percent (51%) in value of the assets of Tenant; (iv) if Tenant is a
limited liability company, the change of members whose interest in the company
is fifty percent (50%) or more. The phrase "controlling percentage" means the
ownership of, and the right to vote, stock possessing at least fifty-one percent
(51%) of the total combined voting power of all classes of Tenant's capital
stock issued, outstanding and entitled to vote for the election of directors, or
such lesser percentage as is required to provide actual control over the affairs
of the corporation; except that, if the Tenant is a publicly traded company,
public trades or sales of the Tenant's stock on a national stock exchange shall
not be considered an assignment hereunder even if the aggregate of the trades of
sales exceeds fifty percent (50%) of the capital stock of the company.
c. PERMITTED ASSIGNMENTS/SUBLEASES. Notwithstanding the foregoing, Tenant
may assign this Lease or sublease part or all of the Premises without Landlord's
consent to: (i) any corporation, limited liability company, or partnership that
controls, is controlled by, or is under common control with, Tenant at the
Commencement Date; or (ii) any corporation or limited liability company
resulting from the merger or consolidation with Tenant or to any entity that
acquires all of Tenant's assets as a going concern of the business that is being
conducted on the Premises; provided however, the assignor remains liable under
the Lease and the assignee or sublessee is a bona fide entity and assumes the
obligations of Tenant, is as creditworthy as the Tenant, and continues the same
Permitted Use as provided under Section 4.
d. NOTICE TO LANDLORD. Landlord must be given prior written notice of
every assignment or subletting, and failure to do so shall be a default
hereunder.
e. PROHIBITED ASSIGNMENTS/SUBLEASES. In no event shall this Lease be
assignable by operation of any law, and Tenant's rights hereunder may not
become, and shall not be listed by Tenant as an asset under any bankruptcy,
insolvency or reorganization proceedings. Acceptance of Rent by Landlord after
any non-permitted assignment or sublease shall not constitute approval thereof
by Landlord.
f. LIMITATION ON RIGHTS OF ASSIGNEE/SUBLESSEE. Any assignment or sublease
for which Landlord's consent is required shall not include the right to exercise
any options to renew the Lease Term, expand the Premises, or similar options,
unless specifically provided for in the consent.
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g. TENANT NOT RELEASED. No assignment or sublease shall release Tenant of
any of its obligations under this Lease.
h. LANDLORD'S RIGHT TO COLLECT SUBLEASE RENTS UPON TENANT DEFAULT. If the
Premises (or any portion) is sublet and Tenant defaults under its obligations to
Landlord, then Landlord is authorized, at its option, to collect all sublease
rents directly from the Sublessee. Tenant hereby assigns the right to collect
the sublease rents to Landlord in the event of Tenant default. The collection of
sublease rents by Landlord shall not relieve Tenant of its obligations under
this Lease, nor shall it create a contractual relationship between Sublessee and
Landlord or give Sublessee any greater estate or right to the Premises than
contained in its Sublease.
i. EXCESS RENTS. If Tenant assigns this Lease or subleases all or part of
the Premises at a rental rate that exceeds the rentals paid to Landlord, then
any such excess shall be paid over to Landlord by Tenant.
j. LANDLORD'S FEES. Tenant shall pay Landlord an administration fee of
$1,000.00 per assignment or sublease transaction for which consent is required.
If Landlord assists Tenant in finding an assignee or subtenant, Landlord shall
be paid a reasonable fee for such assistance.
k. UNAUTHORIZED ASSIGNMENT OR SUBLEASE. Any unauthorized assignment or
sublease shall constitute a default under the terms of this Lease. In addition
to its other remedies for Default, Landlord may elect to increase Base Rent to
150% of the Base Rent reserved under the terms of this Lease.
19. DAMAGES TO PREMISES.
a. LANDLORD'S RESTORATION OBLIGATIONS. If the Building or Premises are
damaged by fire or other casualty ("Casualty"), then Landlord shall repair and
restore the Premises to substantially the same condition of the Premises
immediately prior to such Casualty, subject to the following terms and
conditions:
i. The casualty must be insured under Landlord's insurance
policies, and Landlord's obligation is limited to the extent
of the insurance proceeds received by Landlord. Landlord's
duty to repair and restore the Premises shall not begin until
receipt of the insurance proceeds.
ii. Landlord's lender(s) must permit the insurance proceeds to be
used for such repair and restoration.
iii. Landlord shall have no obligation to repair and restore
Tenant's trade fixtures, decorations, signs, contents, or any
Non-Standard Improvements to the Premises.
b. TERMINATION OF LEASE BY LANDLORD. Landlord shall have the option of
terminating the Lease if: (i) the Premises is rendered wholly untenantable; (ii)
the Premises is damaged in whole or in part as a result of a risk which is not
covered by Landlord's insurance policies; (iii) Landlord's lender does not
permit a sufficient amount of the insurance proceeds to be used for restoration
purposes; (iv) the Premises is damaged in whole or in part during the last two
years of the Term; or (v) the Building containing the Premises is damaged
(whether or not the Premises is damaged) to an extent of fifty percent (50%) or
more of the fair market value thereof. If Landlord elects to terminate this
Lease, then it shall give notice of the cancellation to Tenant within sixty (60)
days after the date of the Casualty. Tenant shall vacate and surrender the
Premises to Landlord within fifteen (15) days after receipt of the notice of
termination.
c. TERMINATION OF LEASE BY TENANT. Tenant shall have the option of
terminating the Lease if: (i) Landlord has failed to substantially restore the
damaged Building or Premises within one hundred eighty (180) days of the
Casualty ("Restoration Period"); (ii) the Restoration Period has not been
delayed by FORCE MAJEURE; and (iii) Tenant gives Landlord notice of the
termination within fifteen 15 days after the end of the Restoration Period (as
extended by any FORCE MAJEURE delays). If Landlord is delayed by FORCE MAJEURE,
then Landlord must provide Tenant with notice of the delays within fifteen (15)
days of the FORCE MAJEURE event stating the reason for the delays and a good
faith estimate of the length of the delays.
d. TENANT'S RESTORATION OBLIGATIONS. Unless terminated, the Lease shall
remain in full force and effect, and Tenant shall promptly repair, restore, or
replace Tenant's trade fixtures,
12
decorations, signs, contents, and any Non-Standard Improvements to the Premises.
All repair, restoration or replacement shall be at least to the same condition
as existed prior to the Casualty. The proceeds of all insurance carried by
Tenant on its property shall be held in trust by Tenant for the purposes of such
repair, restoration, or replacement.
e. RENT ABATEMENT. If Premises is rendered wholly untenantable by the
Casualty, then the Rent payable by Tenant shall be fully abated. If the Premises
is only partially damaged, then Tenant shall continue the operation of Tenant's
business in any part not damaged to the extent reasonably practicable from the
standpoint of prudent business management, and Rent and other charges shall be
abated proportionately to the portion of the Premises rendered untenantable. The
abatement shall be from the date of the Casualty until the Premises have been
substantially repaired and restored, or until Tenant's business operations are
restored in the entire Premises, whichever shall first occur. However, if the
Casualty is caused by the negligence or other wrongful conduct of Tenant or of
Tenant's subtenants, licensees, contractors, or invitees, or their respective
agents or employees, there shall be no abatement of Rent.
f. WAIVER OF CLAIMS. The abatement of the Rent set forth above is Tenant's
exclusive remedy against Landlord in the event of a Casualty. Tenant hereby
waives all claims against Landlord for any compensation or damage for loss of
use of the whole or any part of the Premises and/or for any inconvenience or
annoyance occasioned by any Casualty and any resulting damage, destruction,
repair, or restoration.
20. EMINENT DOMAIN.
a. EFFECT ON LEASE. If all of the Premises are taken under the power of
eminent domain (or by conveyance in lieu thereof), then this Lease shall
terminate as of the date possession is taken by the condemnor, and Rent shall be
adjusted between Landlord and Tenant as of such date. If only a portion of the
Premises is taken and Tenant can continue use of the remainder, then this Lease
will not terminate, but Rent shall ▇▇▇▇▇ in a just and proportionate amount to
the loss of use occasioned by the taking.
b. RIGHT TO CONDEMNATION AWARD. Landlord shall be entitled to receive and
retain the entire condemnation award for the taking of the Building and
Premises. Tenant shall have no right or claim against Landlord for any part of
any award received by Landlord for the taking. Tenant shall have no right or
claim for any alleged value of the unexpired portion of this Lease, or its
leasehold estate, or for costs of removal, relocation, business interruption
expense or any other damages arising out of such taking. Tenant, however, shall
not be prevented from making a claim against the condemning party (but not
against Landlord) for any moving expenses, loss of profits, or taking of
Tenant's personal property (other than its leasehold estate) to which Tenant may
be entitled; provided that any such award shall not reduce the amount of the
award otherwise payable to Landlord for the taking of the Building and Premises.
21. ENVIRONMENTAL COMPLIANCE.
a. ENVIRONMENTAL LAWS. The term "Environmental Laws" shall mean all now
existing or hereafter enacted or issued statutes, laws, rules, ordinances,
orders, permits and regulations of all state, federal, local and other
governmental and regulatory authorities, agencies and bodies applicable to the
Premises, pertaining to environmental matters or regulating, prohibiting or
otherwise having to do with asbestos and all other toxic, radioactive, or
hazardous wastes or materials including, but not limited to, the Federal Clean
Air Act, the Federal Water Pollution Control Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as from time to
time amended.
b. TENANT'S RESPONSIBILITY. Tenant covenants and agrees that it will keep
and maintain the Premises at all times in compliance with Environmental Laws.
Tenant shall not (either with or without negligence) cause or permit the escape,
disposal or release of any biologically active or other hazardous substances, or
materials on the Property. Tenant shall not allow the storage or use of such
substances or materials in any manner not sanctioned by law or in compliance
with the highest standards prevailing in the industry for the storage and use of
such substances or materials, nor allow to be brought onto the Property any such
materials or substances except to use in the ordinary course of Tenant's
business, and then only after notice is given to Landlord of the identity of
such substances or materials. No such notice shall be required, however, for
commercially reasonable amounts of ordinary office supplies and janitorial
supplies. Tenant shall execute affidavits, representations and the like, from
time to time, at
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Landlord's request, concerning Tenant's best knowledge and belief regarding the
presence of hazardous substances or materials on the Premises.
c. TENANT'S LIABILITY. Tenant shall hold Landlord free, harmless, and
indemnified from any penalty, fine, claim, demand, liability, cost, or charge
whatsoever which Landlord shall incur, or which Landlord would otherwise incur,
by reason of Tenant's failure to comply with this Section 21 including, but not
limited to: (i) the cost of full remediation of any contamination to bring the
Property into the same condition as prior to the Commencement Date and into full
compliance with all Environmental Laws; (ii) the reasonable cost of all
appropriate tests and examinations of the Premises to confirm that the Premises
and any other contaminated areas have been remediated and brought into
compliance with all Environmental Laws; and (iii) the reasonable fees and
expenses of Landlord's attorneys, engineers, and consultants incurred by
Landlord in enforcing and confirming compliance with this Section 21.
d. LIMITATION ON TENANT'S LIABILITY. Tenant's obligations under this
Section 21 shall not apply to any condition or matter constituting a violation
of any Environmental Laws: (i) which existed prior to the commencement of
Tenant's use or occupancy of the Premises; (ii) which was not caused, in whole
or in part, by Tenant or Tenant's agents, employees, officers, partners,
contractors or invitees; or (iii) to the extent such violation is caused by, or
results from the acts or neglects of Landlord or Landlord's agents, employees,
officers, partners, contractors, guests, or invitees.
e. INSPECTIONS BY LANDLORD. Landlord and its engineers, technicians, and
consultants (collectively the "Auditors") may, from time to time as Landlord
deems appropriate, conduct periodic tests and examinations ("Audits") of the
Premises to confirm and monitor Tenant's compliance with this Section 21. Such
Audits shall be conducted in such a manner as to minimize the interference with
Tenant's Permitted Use; however in all cases, the Audits shall be of such nature
and scope as shall be reasonably required by then existing technology to confirm
Tenant's compliance with this Section 21. Tenant shall fully cooperate with
Landlord and its Auditors in the conduct of such Audits. The cost of such Audits
shall be paid by Landlord unless an Audit shall disclose a material failure of
Tenant to comply with this Section 21, in which case, the cost of such Audit,
and the cost of all subsequent Audits made during the Term and within thirty
(30) days thereafter (not to exceed two (2) such Audits per calendar year),
shall be paid for on demand by Tenant.
f. LANDLORD'S LIABILITY. Landlord represents and warrants that, to the
best of Landlord's knowledge, there are no hazardous materials on the Premises
as of the Commencement Date in violation of any Environmental Laws. Landlord
shall indemnify and hold Tenant harmless from any liability resulting from
Landlord's violation of this representation and warranty.
g. PROPERTY. For the purposes of this Section 21, the term "Property"
shall include the Premises, Building, all Common Areas, the real estate upon
which the Building is located; all personal property (including that owned by
Tenant); and the soil, ground water, and surface water of the real estate upon
which the Building is located.
h. TENANT'S LIABILITY AFTER TERMINATION OF LEASE. The covenants contained
in this Section 21 shall survive the expiration or termination of this Lease,
and shall continue for so long as Landlord and its successors and assigns may be
subject to any expense, liability, charge, penalty, or obligation against which
Tenant has agreed to indemnify Landlord under this Section 21.
22. DEFAULT.
a. TENANT'S DEFAULT. Tenant shall be in default under this Lease if
Tenant:
i. Fails to pay when due any Base Rent, Additional rent, or any
other sum of money which Tenant is obligated to pay, as
provided in this Lease;
ii. Breaches any other agreement, covenant or obligation in this
Lease and such breach is not remedied within fifteen (15) days
after Landlord gives Tenant notice specifying the breach, or
if such breach cannot, with due diligence, be cured within
fifteen (15) days, Tenant does not commence curing within
fifteen (15) days and with reasonable diligence completely
cure the breach within a reasonable period of time after the
notice;
14
iii. Files any petition or action for relief under any creditor's
law (including bankruptcy, reorganization, or similar action),
either in state or federal court, or has such a petition or
action filed against it which is not stayed or vacated within
sixty (60) days after filing; or
iv. Makes any transfer in fraud of creditors as defined in ▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code (11 U.S.C. 548, as
amended or replaced), has a receiver appointed for its assets
(and the appointment is not stayed or vacated within thirty
(30) days), or makes an assignment for benefit of creditors.
b. LANDLORD'S REMEDIES. In the event of a Tenant default, Landlord at its
option may do one or more of the following:
i. Terminate this Lease and recover all damages caused by
Tenant's breach, including consequential damages for lost
future rent;
ii. Repossess the Premises, with or without terminating, and relet
the Premises at such amount as Landlord deems reasonable;
iii. Declare the entire remaining Base Rent and Additional Rent
immediately due and payable, such amount to be discounted to
its present value at a discount rate equal to the U.S.
Treasury ▇▇▇▇ or Note rate with the closest maturity to the
remaining term of the Lease as selected by Landlord;
iv. Bring action for recovery of all amounts due from Tenant;
v. Seize and hold any personal property of Tenant located in the
Premises and assert against the same a lien for monies due
Landlord;
vi. Lock the Premises and deny Tenant access thereto without
obtaining any court authorization; or
vii. Pursue any other remedy available in law or equity.
c. LANDLORD'S EXPENSES; ATTORNEYS FEES. All reasonable expenses of
Landlord in repairing, restoring, or altering the Premises for reletting as
general office space, together with leasing fees and all other expenses in
seeking and obtaining a new Tenant, shall be charged to and be a liability of
Tenant. Landlord's reasonable attorneys' fees in pursuing any of the foregoing
remedies, or in collecting any Rent or Additional Rent due by Tenant hereunder,
shall be paid by Tenant.
d. REMEDIES CUMULATIVE. All rights and remedies of Landlord are
cumulative, and the exercise of any one shall not be an election excluding
Landlord at any other time from exercise of a different or inconsistent remedy.
No exercise by Landlord of any right or remedy granted herein shall constitute
or effect a termination of this Lease unless Landlord shall so elect by notice
delivered to Tenant. The failure of Landlord to exercise its rights in
connection with this Lease or any breach or violation of any term, or any
subsequent breach of the same or any other term, covenant or condition herein
contained shall not be a waiver of such term, covenant or condition or any
subsequent breach of the same or any other covenant or condition herein
contained.
e. NO ACCORD AND SATISFACTION. No acceptance by Landlord of a lesser sum
than the Rent, Additional Rent and other sums then due shall be deemed to be
other than on account of the earliest installment of such payments due, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment be deemed as accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such installment or pursue any other remedy provided in this Lease.
f. No REINSTATEMENT. No payment of money by Tenant to Landlord after the
expiration or termination of this Lease shall reinstate or extend the Term, or
make ineffective any notice of termination given to Tenant prior to the payment
of such money. After the service of notice or the commencement of a suit, or
after final judgment granting Landlord possession of the Premises, Landlord may
receive and collect any sums due under this Lease, and the payment thereof shall
not make ineffective any notice or in any manner affect any pending suit or any
judgment previously obtained.
15
g. SUMMARY EJECTMENT. Tenant agrees that in addition to all other rights
and remedies Landlord may obtain an order for summary ejectment from any court
of competent jurisdiction without prejudice to Landlord's rights to otherwise
collect rents or breach of contract damages from Tenant.
23. MULTIPLE DEFAULTS.
a. LOSS OF OPTION RIGHTS. Tenant acknowledges that any rights or options
of first refusal, or to extend the Term, to expand the size of the Premises, to
purchase the Premises or the Building, or other similar rights or options which
have been granted to Tenant under this Lease are conditioned upon the prompt and
diligent performance of the terms of this Lease by Tenant. Accordingly, should
Tenant default under this Lease on two (2) or more occasions during any twelve
(12) month period, in addition to all other remedies available to Landlord, all
such rights and options shall automatically, and without further action on the
part of any party, expire and be of no further force and effect.
b. INCREASED SECURITY DEPOSIT. Should Tenant default in the payment of
Base Rent, Additional Rent, or any other sums payable by Tenant under this Lease
on two (2) or more occasions during any twelve (12) month period, regardless of
whether Landlord permits such default to be cured, then, in addition to all
other remedies otherwise available to Landlord, Tenant shall, within ten (10)
days after demand by Landlord, post a Security Deposit in, or Increase the
existing Security Deposit to, a sum equal to three (3) months' installments of
Base Rent. The Security Deposit shall be governed by the terms of this Lease.
c. EFFECT ON NOTICE RIGHTS AND CURE PERIODS. Should Tenant default under
this Lease on two (2) or more occasions during any twelve (12) month period, in
addition to all other remedies available to Landlord, any notice requirements or
cure periods otherwise set forth in this Lease with respect to a default by
Tenant shall not apply.
24. BANKRUPTCY.
a. TRUSTEE'S RIGHTS. Landlord and Tenant understand that, notwithstanding
contrary terms in this Lease, a trustee or debtor in possession under the United
States Bankruptcy Code, as amended, (the "Code") may have certain rights to
assume or assign this Lease. This Lease shall not be construed to give the
trustee or debtor in possession any rights greater than the minimum rights
granted under the Code.
b. ADEQUATE ASSURANCE. Landlord and Tenant acknowledge that, pursuant to
the Code, Landlord is entitled to adequate assurances of future performance of
the provisions of this Lease. The parties agree that the term "adequate
assurance" shall include at least the following:
i. In order to assure Landlord that any proposed assignee will
have the resources with which to pay all Rent payable pursuant
to the provisions of this Lease, any proposed assignee must
have, as demonstrated to Landlord's satisfaction, a net worth
(as defined in accordance with generally accepted accounting
principles consistently applied) of not less than the net
worth of Tenant on the Effective Date (as hereinafter
defined), increased by seven percent (7%), compounded
annually, for each year from the Effective Date through the
date of the proposed assignment. It is understood and agreed
that the financial condition and resources of Tenant were a
material inducement to Landlord in entering into this Lease.
ii. Any proposed assignee must have been engaged in the conduct of
business for the five (5) years prior to any such proposed
assignment, which business does not violate the Use provisions
under Section 4 above, and such proposed assignee shall
continue to engage in the Permitted Use under Section 4. It is
understood that Landlord's asset will be substantially
impaired if the trustee in bankruptcy or any assignee of this
Lease makes any use of the Premises other than the Permitted
Use.
c. ASSUMPTION OF LEASE OBLIGATIONS. Any proposed assignee of this Lease
must assume and agree to be personally bound by the provisions of this Lease.
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25. NOTICES.
a. ADDRESSES. All notices, demands and requests by Landlord or Tenant
shall be sent to the Notice Addresses set forth in Section 1n, or to such other
address as a party may specify by duly given notice.
b. FORM; DELIVERY; RECEIPT. ALL NOTICES, DEMANDS AND REQUESTS WHICH MAY BE
GIVEN OR WHICH ARE REQUIRED TO BE GIVEN BY EITHER PARTY TO THE OTHER MUST BE IN
WRITING UNLESS OTHERWISE SPECIFIED. Notices, demands or requests shall be deemed
to have been properly given for all purposes if (i) delivered against a written
receipt of delivery, (ii) mailed by express, registered or certified mail of the
United States Postal Service, return receipt requested, postage prepaid, or
(iii) delivered to a nationally recognized overnight courier service for next
business day delivery to the receiving party's address as set forth above or
(iv) delivered via telecopier or facsimile transmission to the facsimile number
listed above, with an original counterpart of such communication sent
concurrently as specified in subsection (ii) or (iii) above and with written
confirmation of receipt of transmission provided. Each such notice, demand or
request shall be deemed to have been received upon the earlier of the actual
receipt or refusal by the addressee or three (3) business days after deposit
thereof at any main or branch United States post office if sent in accordance
with subsection (ii) above, and the next business day after deposit thereof with
the courier if sent pursuant to subsection (iii) above.
c. ADDRESS CHANGES. The parties shall notify the other of any change in
address, which notification must be at least fifteen (15) days in advance of it
being effective.
d. NOTICE BY LEGAL COUNSEL. Notices may be given on behalf of any party by
such party's legal counsel.
26. HOLDING OVER. If Tenant holds over after the Expiration Date or other
termination of this Lease, such holding over shall not be a renewal of this
Lease but shall create a tenancy-at-sufferance. Tenant shall continue to be
bound by all of the terms and conditions of this Lease, except that during such
tenancy-at-sufferance Tenant shall pay to Landlord (i) Base Rent at the rate
equal to two hundred percent (200%) of that provided for as of the expiration or
termination date, and (ii) any and all Operating Expenses and other forms of
Additional Rent payable under this Lease. The increased Rent during such holding
over is intended to compensate Landlord partially for losses, damages and
expenses, including frustrating and delaying Landlord's ability to secure a
replacement tenant. If Landlord loses a prospective tenant because Tenant fails
to vacate the Premises on the Expiration Date or any termination of the Lease
after notice to do so, then Tenant will be liable for such damages as Landlord
can prove because of Tenant's wrongful failure to vacate.
27. RIGHT TO RELOCATE.
a. SUBSTITUTE PREMISES. Landlord, at its option, may substitute for the
Premises other space (hereafter called "Substitute Premises") owned by Landlord
in the same geographical vicinity before the Commencement Date or at any time
during the Term or any extension of this Lease, insofar as reasonably possible,
the Substitute Premises shall be of comparable quality and shall have a
comparable square foot area and a configuration substantially similar to the
Premises.
b. NOTICE. Landlord shall give Tenant at least sixty (60) days notice of
its intention to relocate Tenant to the Substitute Premises. This notice will be
accompanied by a floor plan of the Substitute Premises. After such notice,
Tenant shall have ten (10) days within which to agree with Landlord on the
proposed Substitute Premises and unless such agreement is reached within such
period of time, Landlord may terminate this Lease at the end of the sixty (60)
day period of time following the notice.
c. UPFIT OF SUBSTITUTE PREMISES. Landlord agrees to construct or after, at
its own expense, the Substitute Premises as expeditiously as possible so that
they are in substantially the same condition that the Premises were in
immediately prior to the relocation. Landlord shall have the right to reuse the
fixtures, improvements and alterations used in the Premises. Tenant agrees to
occupy the Substitute Premises as soon as Landlord's work is substantially
completed.
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d. RELOCATION COSTS. If relocation occurs after the Commencement Date,
then Landlord shall pay Tenant's reasonable third-party costs of moving Tenant's
furnishings, telephone and computer wiring, and other property to the Substitute
Premises, and reasonable printing costs associated with the change of address.
e. LEASE TERMS. Except as provided herein, Tenant agrees that all of the
obligations of this Lease, including the payment of Rent (to be determined on a
per rentable square foot basis and applied to the Substitute Premises), will
continue despite Tenant's relocation to the Substitute Premises. Upon
substantial completion of the Substitute Premises, this Lease will apply to the
Substitute Premises as if the Substitute Premises had been the space originally
described in this Lease.
f. LIMITATION ON LANDLORD'S LIABILITY. Except as provided above, Landlord
shall not be liable or responsible in any way for damages or injuries suffered
by Tenant pursuant to the relocation in accordance with this provision
including, but not limited to, the loss of goodwill, business, productivity or
profits.
28. BROKER'S COMMISSIONS.
a. BROKER. Each party represents and warrants to the other that it has not
dealt with any real estate broker, finder or other person with respect to this
Lease in any manner, except the Broker identified in Section 1o.
b. LANDLORD'S OBLIGATION. Landlord shall pay any commissions or fees that
are payable to the Broker with respect to this Lease pursuant to Landlord's
separate agreement with the Broker.
c. INDEMNITY. Each party shall indemnify and hold the other party harmless
from any and all damages resulting from claims that may be asserted against the
other party by any other broker, finder or other person (including, without
limitation, any substitute or replacement broker claiming to have been engaged
by indemnifying party in the future), claiming to have dealt with the
indemnifying party in connection with this Lease or any amendment or extension
hereto, or which may result in Tenant leasing other or enlarged space from
Landlord. The provisions of this Section shall survive the termination of this
Lease.
29. MISCELLANEOUS.
a. NO AGENCY. Tenant is not, may not become, and shall never represent
itself to be an agent of Landlord, and Tenant acknowledges that Landlord's title
to the Building is paramount, and that it can do nothing to affect or impair
Landlord's title.
b. FORCE MAJEURE. The term "FORCE MAJEURE" means: fire, flood, extreme
weather, labor disputes, strike, lock-out, riot, government interference
(including regulation, appropriation or rationing), unusual delay in
governmental permitting, unusual delay in deliveries or unavailability of
materials, unavoidable casualties, Act of God, or other causes beyond the
Landlord's reasonable control.
c. BUILDING STANDARD IMPROVEMENTS. The term "Building Standard
Improvements" shall mean the standards for normal construction of general office
space within the Building as specified by Landlord, including design and
construction standards, electrical load factors, materials, fixtures and
finishes.
d. LIMITATION ON DAMAGES. Notwithstanding any other provisions in this
Lease, Landlord shall not be liable to Tenant for any special, consequential,
incidental or punitive damages.
e. SATISFACTION OF JUDGMENTS AGAINST LANDLORD. If Landlord, or its
employees, officers, directors, stockholders or partners are ordered to pay
Tenant a money judgment because of Landlord's default under this Lease, said
money judgment may only be enforced against and satisfied out of: (i) Landlord's
interest in the Building in which the Premises are located including the rental
income and proceeds from sale; and (ii) any insurance or condemnation proceeds
received because of damage or condemnation to, or of, said Building that are
available for use by Landlord. No other assets of Landlord or said other parties
exculpated by the preceding sentence shall be liable for, or subject to, any
such money judgment.
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f. INTEREST. Should Tenant fail to pay any amount due to Landlord within
30 days of the date such amount is due (whether Base Rent, Additional Rent, or
any other payment obligation), then the amount due shall begin accruing interest
at the rate of 18% per annum, compounded monthly, or the highest permissible
rate under applicable usury law, whichever is less, until paid.
g. LEGAL COSTS. Should Landlord prevail in any legal proceedings against
the Tenant for breach of any provision in this Lease, then Tenant shall be
liable for the costs and expenses of the Landlord, including its reasonable
attorneys' fees (at all tribunal levels).
h. COMMUNICATIONS COMPLIANCE. Tenant acknowledges and agrees that any and
all telephone and telecommunication services desired by Tenant shall be ordered
and utilized at the sole expense of Tenant. Unless Landlord requests otherwise
or consents in writing, all of Tenant's telecommunications equipment shall be
located and remain solely in the Premises in accordance with rules and
regulations adopted by Landlord from time to time. Landlord shall not have any
responsibility for the maintenance of Tenant's telecommunications equipment,
including wiring; nor for any wiring or other infrastructure to which Tenant's
telecommunications equipment may be connected. Tenant agrees that, to the extent
any telecommunications service is interrupted, curtailed or discontinued,
Landlord shall have no obligation or liability with respect thereto. Landlord
shall have the right, upon reasonable prior oral or written notice to Tenant, to
interrupt or turn off telecommunications facilities in the event of emergency or
as necessary in connection with repairs to the Building or installation of
telecommunications equipment for other tenants of the Building. In the event
that Tenant wishes at any time to utilize the services of a telephone or
telecommunications provider whose equipment is not then servicing the Building,
the provider shall not be permitted to install its lines or other equipment
within the Building without first securing the prior written approval of
Landlord. Landlord's approval may be conditioned in such a manner to as to
protect Landlord's financial interests, the interest of the Building, and the
other tenants therein. The refusal of Landlord to grant its approval to any
prospective telecommunications provider shall not be deemed a default or breach
by Landlord of its obligation under this Lease. The provision of this paragraph
may be enforced solely by Tenant and Landlord, are not for the benefit of any
other party, and specifically but without limitation, no telephone or
telecommunications provider shall be deemed a third party beneficiary of this
Lease. Tenant shall not utilize any wireless communications equipment (other
than usual and customary cellular telephones), including antennae and satellite
receiver dishes, within the Premises or the Building, without Landlord's prior
written consent Landlord's consent may be conditioned in such a manner so as to
protect Landlord's financial interests, the interests of the Building, and the
other tenants therein. At Landlord's option, Tenant may be required to remove
any and all telecommunications equipment (including wireless equipment)
installed in the Premises or elsewhere in or on the Building by or on behalf of
Tenant, including wiring, or other facilities for telecommunications transmittal
prior to the expiration or termination of the Lease and at Tenant's sole cost.
i. SALE OF PREMISES OR BUILDING. Landlord may sell the Premises or the
Building without affecting the obligations of Tenant hereunder; upon the sale of
the Premises or the Building, Landlord shall be relieved of all responsibility
for the Premises and shall be released from any liability thereafter accruing
under this Lease.
j. TIME OF THE ESSENCE. Time is of the essence in the performance of all
obligations under the terms of this Lease.
k. TRANSFER OF SECURITY DEPOSIT. If any Security Deposit or prepaid Rent
has been paid by Tenant, Landlord may transfer the Security Deposit or prepaid
Rent to Landlord's successor and upon such transfer, Landlord shall be released
from any liability for return of the Security Deposit or prepaid Rent.
l. TENDER OF PREMISES. The delivery of a key or other such tender of
possession of the Premises to Landlord or to an employee of Landlord shall not
operate as a termination of this Lease or a surrender of the Premises unless
requested in writing by Landlord.
m. TENANT'S FINANCIAL STATEMENTS. Upon request of Landlord, Tenant agrees
to furnish to Landlord copies of Tenant's most recent annual, quarterly and
monthly financial statements, audited if available. The financial statements
shall be prepared in accordance with generally accepted accounting principles,
consistently applied. The financial statements shall include a balance sheet and
a statement of profit and loss, and the annual financial statement shall also
include a statement of changes in financial position and appropriate explanatory
notes. Landlord
19
may deliver the financial statements to any prospective or existing mortgagee or
purchaser of the Building.
n. RECORDATION. This Lease may not be recorded without Landlord's prior
written consent, but Tenant and Landlord agree, upon the request of the other
party, to execute a memorandum hereof for recording purposes.
o. PARTIAL INVALIDITY. The invalidity of any portion of this Lease shall
not invalidate the remaining portions of the Lease.
p. BINDING EFFECT. This Lease shall be binding upon the respective parties
hereto, and upon their heirs, executors, successors and assigns.
q. ENTIRE AGREEMENT. This Lease supersedes and cancels all prior
negotiations between the parties, and no changes shall be effective unless in
writing signed by both parties. Tenant acknowledges and agrees that it has not
relied upon any statements, representations, agreements or warranties except
those expressed in this lease, and that this Lease contains the entire agreement
of the parties hereto with respect to the subject matter hereof.
r. GOOD STANDING. If requested by Landlord, Tenant shall furnish
appropriate legal documentation evidencing the valid existence in good standing
of Tenant, and the authority of any person signing this Lease to act for the
Tenant. If Tenant signs as a corporation, each of the persons executing this
Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a duly
authorized and existing corporation, that Tenant has and is qualified to do
business in the State in which the Premises are located, that the corporation
has a full right and authority to enter into this Lease and that each of the
persons signing on behalf of the corporation is authorized to do so.
s. TERMINOLOGY. The singular shall include the plural, and the masculine,
feminine or neuter includes the other.
t. HEADINGS. Headings of sections are for convenience only and shall not
be considered in construing the meaning of the contents of such section.
u. CHOICE OF LAW. This Lease shall be interpreted and enforced in
accordance with the laws of the State in which the Premises are located.
v. EFFECTIVE DATE. The submission of this Lease to Tenant for review does
not constitute a reservation of or option for the Premises, and this Lease shall
become effective as a contract only upon the execution and delivery by both
Landlord and Tenant. The date of execution shall be entered on the top of the
first page of this Lease by Landlord, and shall be the date on which the last
party signed the Lease, or as otherwise may be specifically agreed by both
parties. Such date, once inserted, shall be established as the final day of
ratification by all parties to this Lease, and shall be the date for use
throughout this Lease as the "Effective Date".
30. SPECIAL CONDITIONS. The following special conditions, if any, shall
apply, and where in conflict with earlier provisions in this Lease shall
control:
30.1 EARLY TERMINATION OPTION. SUBJECT TO THE LIMITATIONS HEREINBELOW,
TENANT SHALL HAVE THE OPTION TO TERMINATE THE LEASE EARLY ON OR AFTER OCTOBER
31, 2006, UPON AT LEAST ONE HUNDRED FIFTY (150) DAYS PRIOR WRITTEN NOTICE TO
LANDLORD (THE "EARLY TERMINATION NOTICE") AND PAYMENT TO LANDLORD WITH THE EARLY
TERMINATION NOTICE OF A TERMINATION FEE (THE "TERMINATION FEE") IN AN AMOUNT
EQUAL TO THE VALUE OF TWO (2) MONTHS OF RENT WHICH WOULD OTHERWISE BE SCHEDULED
TO BE PAID FOR THE TWO (2) MONTHS IMMEDIATELY FOLLOWING THE EARLY TERMINATION
DATE. THE EARLY TERMINATION DATE SHALL BE THE DATE SPECIFIED BY TENANT AS SUCH
IN THE EARLY TERMINATION NOTICE WHICH DATE SHALL BE AT THE END OF A CALENDAR
MONTH. IF REQUESTED BY EITHER PARTY, THE PARTIES SHALL ENTER INTO A WRITTEN
TERMINATION AGREEMENT CONFIRMING THE EARLY TERMINATION OF THE LEASE. THE LEASE
AND THE TERM SHALL COME TO AN END ON THE EARLY TERMINATION DATE WITH THE SAME
FORCE AND EFFECT AS IF THE TERM WERE, BY THE PROVISIONS HEREOF, FIXED TO EXPIRE
ON SUCH DATE. NOTWITHSTANDING THE FOREGOING. TENANTS' OPTION TO TERMINATE
GRANTED HEREIN SHALL BE NULL AND VOID, AND OF NO FORCE OR EFFECT IF (I) TENANT
IS IN DEFAULT OF THE LEASE AT THE TIME OF DELIVERY OF THE EARLY TERMINATION
NOTICE OR AT ANY TIME THEREAFTER, UP TO AND INCLUDING THE EARLY TERMINATION
DATE, OR (II) TENANT FAILS TO GIVE THE EARLY TERMINATION NOTICE AT LEAST ONE
HUNDRED EIGHTY (180) DAYS PRIOR TO THE EARLY TERMINATION DATE, OR (III) TENANT
FAILS TO PAY IN FULL WHEN DUE THE TERMINATION FEE; PROVIDED,
20
however, Landlord shall have the right to waive any of the foregoing conditions,
declare the Lease terminated as of the Early Termination Date, and remain
entitled to payment of the Termination Fee by Tenant if the same is not paid
when due.
31. ADDENDA AND EXHIBITS. If any addenda are noted below, such addenda are
incorporated herein and made a part of this Lease.
a. LEASE ADDENDUM NUMBER ONE - "WORK LETTER"
b. LEASE ADDENDUM NUMBER TWO - "ADDITIONAL RENT - OPERATING EXPENSE
PASS THROUGHS"
c. EXHIBIT A - PREMISES
d. EXHIBIT B - RULES AND REGULATIONS
e. EXHIBIT C - COMMENCEMENT AGREEMENT
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY
SIGNATURE BLOCKS ON NEXT PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this lease in four
(4) originals, all as of the day and year first above written.
LANDLORD: TENANT:
AP SOUTHEAST PORTFOLIO PARTNERS, L.P. BIOTEL, INC
a Delaware Limited Partnership A MINNESOTA CORPORATION
By: AP-GP Southeast Portfolio Partners, L.P.
a Delaware limited partnership,
its general partner
By: Highwoods Realty GP Corp.,
a Delaware corporation,
its general partner
BY: \s\ ▇.▇. ▇▇▇▇▇▇ By: \s\ B. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------- ---------------------------
Its: Senior Vice President - Regional Its: President
Manager
Witness 1: \s\ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Witness 1: \s\ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------- --------------------
(signature) (signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------- -------------------------------
(print name) (print name)
Witness 2: \s\ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Witness 2: \s\ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------- --------------------
(signature) (signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------- -------------------------------
(print name) (print name)
22
LEASE ADDENDUM NUMBER ONE [TENANT TO DO WORK]
WORKLETTER. This Lease Addendum Number One (the "First Addendum") sets
forth the rights and obligations of Landlord and Tenant with respect to space
planning, engineering, final workshop drawings, and the construction and
installation of any improvements to the Premises ("Tenant Improvements"). This
First Addendum contemplates that the performance of this work will proceed in
four stages in accordance with the following schedule: (i) preparation of a
space plan; (ii) final design and engineering and preparation of final plans and
working drawings; (iii) preparation by the Contractor (as hereinafter defined)
of an estimate of the cost of the Tenant Improvements; (iv) submission and
approval of plans by appropriate governmental authorities and construction and
installation of the Tenant Improvements.
In consideration of the mutual covenants hereinafter contained, Landlord
and Tenant do mutually agree to the following:
1. ALLOWANCE. Landlord IS NOT PROVIDING ANY IMPROVEMENT ALLOWANCE AND
Tenant is fully responsible for the payment of all costs in connection with the
Tenant Improvements.
2. SPACE PLANNING, DESIGN AND WORKING DRAWINGS. Tenant shall provide and
designate architects and engineers licensed in State in which the Premises are
located and reasonably acceptable to Landlord, which architects and engineers
will complete construction and mechanical drawings and specifications as
required to construct the Tenant Improvements. The architects and engineers
shall comply with the following:
a. Attend a reasonable number of meetings with Tenant and Landlord's
agent to define Tenant requirements. Tenant shall provide one complete
space plan prepared by Tenant's architect in order to obtain Landlord's
approval of such space plan.
b. Complete construction drawings for Tenant's partition layout,
reflected ceiling grid, telephone and electrical outlets, keying, and
finish schedule (subject to the limitation expressed in Section 2 below).
c. Complete building standard mechanical plans where necessary (for
installation of air conditioning system and ductwork, and heating and
electrical facilities) for the work to be done in the Premises.
d. All plans and working drawings for the construction and
completion of the Premises (the "Plans") shall be subject to Landlord's
prior written approval. Any changes or modifications Tenant desires to
make to the Plans shall also be subject to Landlord's prior approval.
Landlord agrees that it will not unreasonably withhold its approval of the
Plans, or of any changes or modifications thereof; provided, however,
Landlord shall have sole and absolute discretion to approve or disapprove
any improvements that will be visible to the exterior of the Premises, or
which may affect the structural integrity of the Building. Any approval of
the Plans by Landlord shall not constitute approval of any Delays caused
by Tenant and shall not be deemed a waiver of any rights or remedies that
may arise as a result of such Delays.
e. If Tenant makes any revisions to the space plan after it has been
approved by both Landlord and Tenant, Tenant shall pay all additional
costs and expenses incurred as a result of such revisions.
3. SIGNAGE AND KEYING. Door and/or directory signage and suite keying in
accordance with building standards shall be provided and installed by Tenant.
4. WORK AND MATERIALS AT TENANT'S EXPENSE.
a. Tenant shall select Contractors licensed in State in which the
Premises are located, to provide the work and materials to construct the
Tenant Improvements; provided that Landlord shall first approve such
Contractors, such approval not to be unreasonably withheld.
b. ALL WORK IS TO BE PERFORMED IN COMPLIANCE WITH LANDLORD'S
CONSTRUCTION RULES, REGULATIONS AND SPECIFICATIONS ("CONSTRUCTION RULES"),
A COPY OF WHICH HAS BEEN PROVIDED TO
23
TENANT. IT IS TENANT'S RESPONSIBILITY TO MAKE SURE THAT ITS CONTRACTOR
COMPLIES WITH ALL CONSTRUCTION RULES. IF TENANT HAS NOT RECEIVED A COPY OF
THE CONSTRUCTION RULES, IT IS THE RESPONSIBILITY OF TENANT TO OBTAIN A
COPY PRIOR TO COMMENCEMENT OF ANY CONSTRUCTION ACTIVITIES. FAILURE TO
COMPLY WITH THE CONSTRUCTION RULES IS A DEFAULT UNDER THE LEASE.
c. Tenant shall pay Landlord a fee of ____0___ to reimburse Landlord
for its costs and expenses in monitoring construction of the Tenant
Improvements to assure they are being constructed in accordance with the
approved Plans. This fee may be deducted from the Allowance by Landlord.
d. Upon completion of the Tenant Improvements and within five (5)
days after demand by Landlord, Tenant shall deliver to Landlord (i) final
releases of lien from all contractors, subcontractors and materialmen
performing any work or providing any materials for the Tenant
Improvements, and from any lienors giving notice required under law; (ii)
a final contractor's affidavit from the general Contractor in accordance
with applicable law; and (iii) any supporting documentation evidencing
final completion and payment of the Tenant Improvements reasonably
requested by Landlord.
5. COMMENCEMENT DATE. Landlord shall be deemed to have delivered
possession of the Premises on the Commencement Date set forth in Section 1b of
the Lease, and the Commencement Date of the Lease shall not be delayed by reason
of the non-completion of the Tenant Improvements or the failure to obtain a
certificate of occupancy or a temporary certificate of occupancy.
6. MATERIALS AND WORKMANSHIP. Tenant covenants and agrees that all work
performed in connection with the construction of the Premises shall be performed
in a good and workmanlike manner and in accordance with all applicable laws and
regulations and with the final approved Plans. Tenant agrees to exercise due
diligence in completing the construction of the Premises.
7. INSURANCE; INDEMNITY. Prior to any entering the Premises or commencing
construction, Tenant shall comply with all insurance provisions of the Lease.
All waiver and indemnity provisions of the Lease shall apply upon Tenant's (or
it's contractor's) entry of the Premises.
24
LEASE ADDENDUM NO. TWO [BASE YEAR]
ADDITIONAL RENT - OPERATING EXPENSE PASS THROUGHS. For the calendar year
commencing on JANUARY 1, 2006 and for each calendar year thereafter, Tenant
shall pay to Landlord as Additional Rent, Tenant's Proportionate Share of any
increase in Operating Expenses (as hereinafter defined) incurred by Landlord's
operation or maintenance of the Building during calendar year 2005 (the "Base
Year"). For purposes of calculating Tenant's Proportionate Share of real and
personal property taxes, Landlord shall use the Base Year or the year in which
the Building and improvements are completed and are fully assessed, whichever
shall be later. Tenant's Proportionate Share shall be calculated by dividing the
2,903 rentable square feet of the Premises by the 72995 net rentable square feet
of the Building, which equals 3.97%. If during any calendar year the occupancy
of the rentable area of the Building is less than full, then Operating Expenses
(as hereinafter defined) will be adjusted for such calendar year at a rate of
95% occupancy.
As used herein, the term "Operating Expenses" shall mean direct costs of
operation, repair and maintenance as determined by standard accounting
practices, including, but not limited to ad valorem real and personal property
taxes, hazard and liability insurance premiums, utilities, heat, air
conditioning, janitorial service, labor, materials, supplies, equipment and
tools, permits, licenses, inspection fees, management fees (but not including
the cost of management personnel above the level of Property Manager), and
common area expenses; provided, however, the term "Operating Expenses" shall not
include depreciation on the Building or equipment therein, interest, executive
salaries, real estate brokers' commissions, or other expenses that do not relate
to the operation of the Building. The annual statement of Operating Expenses
shall be accounted for and reported in accordance with generally accepted
accounting principles (the "Annual Statement").
For the calendar year commencing on JANUARY 1, 2006 and for each calendar
year thereafter during the Term, Landlord shall estimate the amount the
Operating Expenses shall increase for such calendar year above the Operating
Expenses incurred during the Base Year. Landlord shall send to Tenant a written
statement of the amount of Tenant's Proportionate Share of any estimated
increase in Operating Expenses and Tenant shall pay to Landlord, monthly as
Additional Rent, Tenant's Proportionate Share of such increase in Operating
Expenses. Within ninety (90) days after the end of each calendar year, Landlord
shall send a copy of the Annual Statement to Tenant. Pursuant to the Annual
Statement, Tenant shall pay to Landlord Additional Rent in a lump sum as owed or
Landlord shall adjust Tenant's Rent payments if Landlord owes Tenant a credit,
such payment or adjustment to be made within thirty (30) days after the Annual
Statement is received by Tenant After the Expiration Date, Landlord shall send
Tenant the final Annual Statement for the Term, and Tenant shall pay to Landlord
Additional Rent as owed or if Landlord owes Tenant a credit, then Landlord shall
pay Tenant a refund. If this Lease expires or terminates on a day other than
December 31, then Additional Rent shall be prorated on a 365-day calendar year
(or 366 if a leap year).
Provided no default by Tenant is then outstanding, Tenant, at Tenant's
sole cost and expense (except as stated below), shall have the right, to be
exercised by written notice given to Landlord within thirty (30) days after
receipt of Landlord's Annual Statement, for the preceding calendar year, to
audit Landlord's books and records pertaining to such Operating Expenses,
provided such audit commences within thirty (30) days after Tenant's notice to
Landlord and thereafter proceeds regularly and continuously to conclusion, but
in no event later than sixty (60) days following commencement of the audit, and,
provided further, that such audit does not unreasonably interfere with the
conduct of Landlord's business, and provided, further, that such audit shall be
performed either by Tenant or a certified public accounting firm but
specifically not by any firm the compensation of which is on a contingent basis.
Landlord agrees to cooperate in good faith with Tenant in the conduct of any
such audit. To the extent such audit reveals an underpayment or over payment by
Tenant of Operating Expenses, Landlord and Tenant shall promptly make the
appropriate adjustments for said over payment or underpayment to be paid to the
other party. If any such audit reveals that the amount of Operating Expenses
billed to Tenant is more than five percent (5%) in excess of Tenant's Share of
actual Operating Expenses, then Landlord shall pay fifty percent (50%) of the
reasonable costs and expenses incurred by Tenant in connection with such audit.
Tenant agrees on behalf of Tenant, its employees and agents (including any
entity conducting such audit) that any and all information obtained from
Landlord's records, as well as the results of any audit, shall be held in
confidence and shall not be disclosed to any third party except as may be
specifically required for the limited purpose of enforcing Tenant's rights under
the Lease.
25
EXHIBIT A
LEGAL DESCRIPTION/SPACE PLAN
(TO BE PROVIDED)
26
EXHIBIT B
RULES AND REGULATIONS
1. ACCESS TO BUILDING. On Saturdays, Sundays, legal holidays and weekdays
between the hours of 6:00 P.M. and 8:00 A.M., access to the Building
and/or to the halls, corridors, elevators or stairways in the Building may
be restricted and access shall be gained by use of a key or electronic
card to the outside doors of the Buildings. Landlord may from time to time
establish security controls for the purpose of regulating access to the
Building. Tenant shall be responsible for providing access to the Premises
for its agents, employees, invitees and guests at times access is
restricted, and shall comply with all such security regulations so
established.
2. PROTECTING PREMISES. The last member of Tenant to leave the Premises shall
close and securely lock all doors or other means of entry to the Premises
and shut off all lights and equipment in the Premises.
3. BUILDING DIRECTORIES. The directories for the Building in the form
selected by Landlord shall be used exclusively for the display of the name
and location of tenants. Any additional names and/or name change requested
by Tenant to be displayed in the directories must be approved by Landlord
and, if approved, will be provided at the sole expense of Tenant.
4. LARGE ARTICLES. Furniture, freight and other large or heavy articles may
be brought into the Building only at times and in the manner designated by
Landlord and always at Tenant's sole responsibility. All damage done to
the Building, its furnishings, fixtures or equipment by moving or
maintaining such furniture, freight or articles shall be repaired at
Tenant's expense.
5. SIGNS. Tenant shall not paint, display, inscribe, maintain or affix any
sign, placard, picture, advertisement, name, notice, lettering or
direction on any part of the outside or inside of the Building, or on any
part of the inside of the Premises which can be seen from the outside of
the Premises, including windows and doors, without the written consent of
Landlord, and then only such name or names or matter and in such color,
size, style, character and material as shall be first approved by Landlord
in writing. Landlord, without notice to Tenant, reserves the right to
remove, at Tenant's expense, all matters other than that provided for
above.
6. COMPLIANCE WITH LAWS. Tenant shall comply with all applicable laws,
ordinances, governmental orders or regulations and applicable orders or
directions from any public office or body having jurisdiction, whether now
existing or hereinafter enacted with respect to the Premises and the use
or occupancy thereof. Tenant shall not make or permit any use of the
Premises which directly or indirectly is forbidden by law, ordinance,
governmental regulations or order or direction of applicable public
authority, which may be dangerous to persons or property or which may
constitute a nuisance to other tenants.
7. HAZARDOUS MATERIALS. Tenant shall not use or permit to be brought into the
Premises or the Building any flammable oils or fluids, or any explosive or
other articles deemed hazardous to persons or property, or do or permit to
be done any act or thing which will invalidate, or which, if brought in,
would be in conflict with any insurance policy covering the Building or
its operation, or the Premises, or any part of either, and will not do or
permit to be done anything in or upon the Premises, or bring or keep
anything therein, which shall not comply with all rules, orders,
regulations or requirements of any organization, bureau, department or
body having jurisdiction with respect thereto (and Tenant shall at all
times comply with all such rules, orders, regulations or requirements), or
which shall increase the rate of insurance on the Building, its
appurtenances, contents or operation.
8. DEFACING PREMISES AND OVERLOADING. Tenant shall not place anything or
allow anything to be placed in the Premises near the glass of any door,
partition, wall or window that may be unsightly from outside the Premises.
Tenant shall not place or permit to be placed any article of any kind on
any window ledge or on the exterior walls; blinds, shades, awnings or
other forms of inside or outside window ventilators or similar devices
shall not be placed in or about the outside windows in the Premises except
to the extent that the character, shape, color, material and make thereof
is approved by Landlord. Tenant shall not do any painting or decorating in
the Premises or install any floor coverings in the Premises or make,
paint, cut or drill into, or in any way deface any part of the Premises or
Building without in each instance obtaining the prior written consent of
Landlord. Tenant shall not overload any floor
27
or part thereof in the Premises, or any facility in the Building or any
public corridors or elevators therein by bringing in or removing any large
or heavy articles and Landlord may direct and control the location of
safes, files, and all other heavy articles and, if considered necessary by
Landlord may require Tenant at its expense to supply whatever
supplementary supports necessary to properly distribute the weight.
9. OBSTRUCTION OF PUBLIC AREAS. Tenant shall not, whether temporarily,
accidentally or otherwise, allow anything to remain in, place or store
anything in, or obstruct in any way, any sidewalk, court, hall,
passageway, entrance, or shipping area. Tenant shall lend its full
cooperation to keep such areas free from all obstruction and in a clean
and sightly condition, and move all supplies, furniture and equipment as
soon as received directly to the Premises, and shall move all such items
and waste (other than waste customarily removed by Building employees)
that are at any time being taken from the Premises directly to the areas
designated for disposal. All courts, passageways, entrances, exits,
elevators, escalators, stairways, corridors, halls and roofs are not for
the use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose presence,
in the judgment of Landlord, shall be prejudicial to the safety,
character, reputation and interest of the Building and its tenants;
provided, however, that nothing herein contained shall be construed to
prevent such access to persons with whom Tenant deals within the normal
course of Tenant's business so long as such persons are not engaged in
illegal activities.
10. ADDITIONAL LOCKS. Tenant shall not attach, or permit to be attached,
additional locks or similar devices to any door or window, change existing
locks or the mechanism thereof, or make or permit to be made any keys for
any door other than those provided by Landlord. Upon termination of this
Lease or of Tenant's possession, Tenant shall immediately surrender all
keys to the Premises.
11. COMMUNICATIONS OR UTILITY CONNECTIONS. If Tenant desires signal, alarm or
other utility or similar service connections installed or changed, then
Tenant shall not install or change the same without the approval of
Landlord, and then only under direction of Landlord and at Tenant's
expense. Tenant shall not install in the Premises any equipment which
requires a greater than normal amount of electrical current for the
permitted use without the advance written consent of Landlord. Tenant
shall ascertain from Landlord the maximum amount of load or demand for or
use of electrical current which can safely be permitted in the Premises,
taking into account the capacity of the electric wiring in the Building
and the Premises and the needs of other tenants in the Building, and
Tenant shall not in any event connect a greater load than that which is
safe.
12. OFFICE OF THE BUILDING. Service requirements of Tenant will be attended to
only upon application at the office of Highwoods Properties, Inc.
Employees of Landlord shall not perform, and Tenant shall not engage them
to do any work outside of their duties unless specifically authorized by
Landlord.
13. RESTROOMS. The restrooms, toilets, urinals, vanities and the other
apparatus shall not be used for any purpose other than that for which they
were constructed, and no foreign substance of any kind whatsoever shall be
thrown therein. The expense of any breakage, stoppage or damage resulting
from the violation of this rule shall be borne by the Tenant whom, or
whose employees or invitees, shall have caused it.
14. INTOXICATION. Landlord reserves the right to exclude or expel from the
Building any person who, in the judgment of Landlord, is intoxicated, or
under the influence of liquor or drugs, or who in any way violates any of
the Rules and Regulations of the Building.
15. NUISANCES AND CERTAIN OTHER PROHIBITED USES. Tenant shall not (a) install
or operate any internal combustion engine, boiler, machinery,
refrigerating, heating or air conditioning apparatus in or about the
Premises; (b) engage in any mechanical business, or in any service in or
about the Premises or Building, except those ordinarily embraced within
the Permitted Use as specified in Section 3 of the Lease; (c) use the
Premises for housing, lodging, or sleeping purposes; (d) prepare or warm
food in the Premises or permit food to be brought into the Premises for
consumption therein (heating coffee and individual lunches of employees
excepted) except by express permission of Landlord; (e) place any radio or
television antennae on the roof or on or in any part of the inside or
outside of the Building other than the inside of the Premises, or place a
musical or sound producing instrument or device inside or outside the
Premises which may be heard outside the Premises; (f) use any
28
power source for the operation of any equipment or device other than dry
cell batteries or electricity; (g) operate any electrical device from
which may emanate waves that could interfere with or impair radio or
television broadcasting or reception from or in the Building or elsewhere;
(h) bring or permit to be in the Building any bicycle, other vehicle, dog
(except in the company of a blind person), other animal or bird; (i) make
or permit any objectionable noise or odor to emanate from the Premises;
(j) disturb, harass, solicit or canvass any occupant of the Building; (k)
do anything in or about the Premises which could be a nuisance or tend to
injure the reputation of the Building; (i) allow any firearms in the
Building or the Premises except as approved by Landlord in writing.
16. SOLICITATION. Tenant shall not canvass other tenants in the Building to
solicit business or contributions and shall not exhibit, sell or offer to
sell, use, rent or exchange any products or services in or from the
Premises unless ordinarily embraced within the Tenant's Permitted Use as
specified in Section 3 of the Lease.
17. ENERGY CONSERVATION. Tenant shall not waste electricity, water, heat or
air conditioning and agrees to cooperate fully with Landlord to insure the
most effective operation of the Building's heating and air conditioning,
and shall not allow the adjustment (except by Landlord's authorized
Building personnel) of any controls.
18. BUILDING SECURITY. At all times other than normal business hours the
exterior Building doors and suite entry door(s) must be kept locked to
assist in security. Problems in Building and suite security should be
directed to Landlord at (▇▇▇) ▇▇▇-▇▇▇▇.
19. PARKING. Parking is in designated parking areas only. There shall be no
vehicles in "no parking" zones or at curbs. Handicapped spaces are for
handicapped persons only and the Police Department will ticket
unauthorized (unidentified) cars in handicapped spaces. Landlord reserves
the right to remove vehicles that do not comply with the Lease or these
Rules and Regulations and Tenant shall indemnify and hold harmless
Landlord from its reasonable exercise of these rights with respect to the
vehicles of Tenant and its employees, agents and invitees.
20. JANITORIAL SERVICE. The janitorial staff will remove all trash from
trashcans. Any container or boxes left in hallways or apparently discarded
unless clearly and conspicuously labeled DO NOT REMOVE may be removed
without liability to Tenant. Any large volume of trash resulting from
delivery of furniture, equipment, etc., should be removed by the delivery
company, Tenant, or Landlord at Tenant's expense. Janitorial service will
be provided after hours five (5) days a week. All requests for trash
removal other than normal janitorial services should be directed to
Landlord at (▇▇▇) ▇▇▇-▇▇▇▇.
21. CONSTRUCTION. Tenant shall make no structural or interior alterations of
the Premises. All Structural and nonstructural alterations and
modifications to the Premises shall be coordinated through Landlord as
outlined in the Lease. Completed construction drawings of the requested
changes are to be submitted to Landlord or its designated agent for
pricing and construction supervision.
29
EXHIBIT C
COMMENCEMENT AGREEMENT
This COMMENCEMENT AGREEMENT (the "First Amendment"), made and entered into
as of this ________ day of __________________, 2004, by and between AP SOUTHEAST
PORTFOLIO PARTNERS, L.P., a Delaware limited partnership, with its principal
office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Landlord") and _______________________, a ___________________Corporation, with
its principal office at _____________________________ ("Tenant");
WITNESSETH:
WHEREAS, Tenant and Landlord entered into that certain Lease Agreement
dated __________ (the "Lease"), for space designated as Suite _____, comprising
approximately ___________ rentable square feet, in the _____________________
Building, located at ____________________________________, City of Columbia,
County of Richland, State of South Carolina; and
WHEREAS, the parties desire to establish the Commencement Date and
Expiration Date as set forth below,
NOW, THEREFORE, in consideration of the mutual and reciprocal promises
herein contained, Tenant and Landlord hereby agree that said Lease hereinafter
described be, and the same is hereby modified in the following particulars:
1. The term of the Lease by and between Landlord and Tenant actually
commenced on ___________________ (the "Commencement Date"). The initial term of
said Lease shall terminate on ___________________ (the "Expiration Date").
Section 3, entitled "Term", and all references to the Commencement Date and
Termination Date in the Lease are hereby amended.
2. Except as modified and amended by this First Amendment, the Lease shall
remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to be
duly executed, as of the day and year first above written.
LANDLORD: TENANT:
AP SOUTHEAST PORTFOLIO
PARTNERS, L.P.
a Delaware Limited Partnership
By: AP-GP Southeast Portfolio Partners, L.P.
a Delaware limited partnership,
its general partner
By: Highwoods Realty GP Corp.,
a Delaware corporation,
its general partner
By: By:
----------------------------------- ----------------------------
Senior Vice President - Regional Manager
----------------------------
30
Exhibit 2
LEASE
DB QUAD PRAIRIE BUSINESS CENTER, INC.,
Landlord,
and
Braemar, Inc. & Biotel, Inc.,
Tenant
TABLE OF CONTENTS
1. USE AND RESTRICTIONS ON USE ......................................... 5
2. TERM ................................................................ 6
3. RENT ................................................................ 6
4. RENT ADJUSTMENTS .................................................... 7
5. SECURITY DEPOSIT .................................................... 8
6. ALTERATIONS ......................................................... 9
7. REPAIR .............................................................. 9
8. LIENS .............................................................. 10
9. ASSIGNMENT AND SUBLETTING ........................................... 10
10. INDEMNIFICATION ..................................................... 12
11. INSURANCE ........................................................... 12
12. WAIVER OF SUBROGATION ............................................... 13
13. SERVICES AND UTILITIES .............................................. 13
14. HOLDING OVER ........................................................ 13
15. SUBORDINATION ....................................................... 13
16. RULES AND REGULATIONS ............................................... 13
17. REENTRY BY LANDLORD ................................................. 13
18. DEFAULT ............................................................. 14
19. REMEDIES ............................................................ 15
20. TENANT'S BANKRUPTCY OR INSOLVENCY ................................... 18
21. QUIET ENJOYMENT ..................................................... 18
22. CASUALTY ............................................................ 18
23. EMINENT DOMAIN ...................................................... 19
24. SALE BY LANDLORD .................................................... 20
25. ESTOPPEL CERTIFICATES ............................................... 20
26. SURRENDER OF PREMISES ............................................... 20
27. NOTICES ............................................................. 21
28. TAXES PAYABLE BY TENANT ............................................. 21
29. RELOCATION OF TENANT ................................................ 21
30. DEFINED TERMS AND HEADINGS .......................................... 21
31. TENANT'S AUTHORITY .................................................. 22
32. FINANCIAL STATEMENTS AND CREDIT REPORTS ............................. 22
33. COMMISSIONS ......................................................... 22
34. TIME AND APPLICABLE LAW ............................................. 22
35. SUCCESSORS AND ASSIGNS .............................................. 22
i
TABLE OF CONTENTS
CONTINUED
36. ENTIRE AGREEMENT .................................................... 22
37. EXAMINATION NOT OPTION .............................................. 22
38. RECORDATION ......................................................... 22
39. RENEWAL OPTION ...................................................... 23
40. EXPANSION RIGHTS .................................................... 23
41. TERMINATION OPTION .................................................. 24
42. LIMITATION OF LANDLORD'S LIABILITY .................................. 25
EXHIBIT A- FLOOR PLAN DEPICTING THE PREMISES
EXHIBIT A-l - SITE PLAN
EXHIBIT B - INITIAL ALTERATIONS
EXHIBIT C - COMMENCEMENT DATE MEMORANDUM
EXHIBIT D - RULES AND REGULATIONS
ii
MULTI-TENANT INDUSTRIAL NET LEASE
REFERENCE PAGES
BUILDING: Eagandale Business Campus III
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LANDLORD: DB Quad Prairie Business Center, Inc.,
a Maryland Corporation
LANDLORD'S ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Property Management
WIRE INSTRUCTIONS AND/OR DB Quad Prairie Business Center, Inc.
ADDRESS FOR RENT PAYMENT: ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
LEASE REFERENCE DATE: January 9, 2006
TENANT: Braemar, Inc., a Minnesota corporation &
Biotel, Inc., a Minnesota corporation
TENANT'S NOTICE ADDRESS:
(a) As of beginning ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
of Term: ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) Prior to ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
beginning of Term (if ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
different):
PREMISES ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PREMISES RENTABLE AREA: Approximately 17,314 sq. ft. (for outline of
Premises see EXHIBIT A), approximately 5,326
sq. ft. office, 4,011 sq. ft. engineering, and
7,977 sq. ft. assembly/warehouse
USE: General office, assembly and warehouse
SCHEDULED COMMENCEMENT DATE: March 1,2006
TERM OF LEASE: Approximately five (5) years, six (6) months
and zero (0) days beginning on the
Commencement Date and ending on the
Termination Date. [The period from the
Commencement Date to the last day of the
same month is the "Commencement Month."]
TERMINATION DATE: August 31, 2011 [The last day of the sixty-sixth
(66th) full calendar month after (if the
Commencement Month is not a full calendar
month), or from and including (if the
Commencement Month is a full calendar month),
the Commencement Month]
ANNUAL RENT and MONTHLY
INSTALLMENT OF RENT (Article 3):
-----------------------------------------------------------------------------------------------
PERIOD
--------------------- RENTABLE SQUARE ANNUAL RENT PER MONTHLY INSTALLMENT
FROM THROUGH FOOTAGE SQUARE FOOT ANNUAL RENT OF RENT
-----------------------------------------------------------------------------------------------
3/1/2006 8/31/2006 17,314 $ 0.00 $ 0.00 $ 0.00
-----------------------------------------------------------------------------------------------
9/1/2006 8/31/2007 17,314 $ 5.75 $ 99,564.00 $ 8,297.00
-----------------------------------------------------------------------------------------------
9/1/2007 8/31/2008 17,314 $ 5.95 $ 103,020.00 $ 8,585.00
-----------------------------------------------------------------------------------------------
9/1/2008 8/31/2009 17,314 $ 6.15 $ 106,488.00 $ 8,874.00
-----------------------------------------------------------------------------------------------
9/1/2009 8/31/2010 17,314 $ 6.35 $ 109,944.00 $ 9,162.00
-----------------------------------------------------------------------------------------------
9/1/2010 8/31/2011 17,314 $ 6.55 $ 113,412.00 $ 9,451.00
-----------------------------------------------------------------------------------------------
INITIAL ESTIMATED MONTHLY $2,221.96 (Taxes)
INSTALLMENT OF RENT $1,857.68 (Operating Expense)
ADJUSTMENTS (Article 4)
TENANT'S PROPORTIONATE SHARE: 7.20%
SECURITY DEPOSIT: $12,400.00
ASSIGNMENT/SUBLETTING FEE none
REAL ESTATE BROKER DUE Welsh Companies, LLC - Landlord
COMMISSION: Appletree Properties - Tenant
AMORTIZATION RATE: 8.00%
TENANT'S SIC CODE: 5999
2
The Reference Pages information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Pages information and
the Lease, the Lease shall control. This Lease includes Exhibits A through D,
all of which are made a part of this Lease.
3
LANDLORD: TENANT:
DB QUAD PRAIRIE BUSINESS BIOTEL, INC.,
CENTER, INC., A MARYLAND CORPORATION A MINNESOTA CORPORATION
By: RREEF Management Company, a
Delaware corporation
By: \s\ ▇▇▇▇ ▇▇▇▇▇ By: \s\ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Regional Manager Title: CEO
Dated: 1/17/06 Dated: January 10, 2006
TENANT:
BRAEMAR, INC.,
A MINNESOTA CORPORATION
By: \s\ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: CEO
Dated: January 10th, 2006
4
LEASE
By this Lease Landlord leases to Tenant and Tenant leases from Landlord
the Premises in the Building as set forth and described on the Reference Pages.
The Premises are depicted on the floor plan attached hereto as EXHIBIT A, and
the Building is depicted on the site plan attached hereto as EXHIBIT A-1. The
Reference Pages, including all terms defined thereon, are incorporated as part
of this Lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for the purposes set forth on the
Reference Pages. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building or injure, annoy, or disturb them, or
allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purpose, or commit any waste. Tenant shall not do, permit or
suffer in, on, or about the Premises the sale of any alcoholic liquor without
the written consent of Landlord first obtained. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
Premises and its occupancy and shall promptly comply with all governmental
orders and directions for the correction, prevention and abatement of any
violations in the Building or appurtenant land, caused or permitted by, or
resulting from the specific use by, Tenant, or in or upon, or in connection
with, the Premises, all at Tenant's sole expense. Tenant shall not do or permit
anything to be done on or about the Premises or bring or keep anything into the
Premises which will in any way increase the rate of, invalidate or prevent the
procuring of any insurance protecting against loss or damage to the Building or
any of its contents by fire or other casualty or against liability for damage to
property or injury to persons in or about the Building or any part thereof.
1.2 Tenant shall not, and shall not direct, suffer or permit any of its
agents, contractors, employees, licensees or invitees (collectively, the "Tenant
Entities") to at any time handle, use, manufacture, store or dispose of in or
about the Premises or the Building any (collectively "Hazardous Materials")
flammables, explosives, radioactive materials, hazardous wastes or materials,
toxic wastes or materials, or other similar substances, petroleum products or
derivatives or any substance subject to regulation by or under any federal,
state and local laws and ordinances relating to the protection of the
environment or the keeping, use or disposition of environmentally hazardous
materials, substances, or wastes, presently in effect or hereafter adopted, all
amendments to any of them, and all rules and regulations issued pursuant to any
of such laws or ordinances (collectively "Environmental Laws"), nor shall Tenant
suffer or permit any Hazardous Materials to be used in any manner not fully in
compliance with all Environmental Laws, in the Premises or the Building and
appurtenant land or allow the environment to become contaminated with any
Hazardous Materials. Notwithstanding the foregoing, Tenant may handle, store,
use or dispose of products containing small quantities of Hazardous Materials
(such as aerosol cans containing insecticides, toner for copiers, paints, paint
remover and the like) to the extent customary and necessary for the use of the
Premises for general office purposes; provided that Tenant shall always handle,
store, use, and dispose of any such Hazardous Materials in a safe and lawful
manner and never allow such Hazardous Materials to contaminate the Premises,
Building and appurtenant land or the environment. Tenant shall protect, defend,
indemnify and hold each and all of the Landlord Entities (as defined in Article
30) harmless from and against any and all loss, claims, liability or costs
(including court costs and attorney's fees) incurred by reason of any actual or
asserted failure of Tenant to fully comply with all applicable Environmental
Laws, or the presence, handling, use or disposition in or from the Premises of
any Hazardous Materials by Tenant or any Tenant Entity (even though permissible
under all applicable Environmental Laws or the provisions of this Lease), or by
reason of any actual or asserted failure of Tenant to keep, observe, or perform
any provision of this Section 1.2.
1.3 Tenant and the Tenant Entities will be entitled to the non-exclusive
use of the common areas of the Building as they exist from time to time during
the Term, including the parking facilities, subject to Landlord's rules and
regulations regarding such use. However, in no event will Tenant or the Tenant
Entities park more vehicles in the parking facilities than Tenant's
Proportionate Share of the total parking spaces available for common use. The
foregoing shall not be deemed to provide Tenant with an exclusive right to any
parking spaces or any guaranty of the availability of any particular parking
spaces or any specific number of parking spaces.
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2. TERM.
2.1 The Term of this Lease shall begin on the date ("Commencement Date")
which shall be the later of the Scheduled Commencement Date as shown on the
Reference Pages and the date that Landlord shall tender possession of the
Premises to Tenant, and shall terminate on the date as shown on the Reference
Pages ("Termination Date"), unless sooner terminated by the provisions of this
Lease. Landlord shall tender possession of the Premises with all the work, if
any, to be performed by Landlord pursuant to EXHIBIT B to this Lease
substantially completed. Tenant shall deliver a punch list of items not
completed within thirty (30) days after Landlord tenders possession of the
Premises and Landlord agrees to proceed with due diligence to perform its
obligations regarding such items. Tenant shall, at Landlord's request, execute
and deliver a memorandum agreement provided by Landlord in the form of EXHIBIT C
attached hereto, setting forth the actual Commencement Date, Termination Date
and, if necessary, a revised rent schedule. Should Tenant fail to do so within
thirty (30) days after Landlord's request, the information set forth in such
memorandum provided by Landlord shall be conclusively presumed to be agreed and
correct.
2.2 Tenant agrees that in the event of the inability of Landlord to
deliver possession of the Premises on the Scheduled Commencement Date for any
reason, Landlord shall not be liable for any damage resulting from such
inability, but Tenant shall not be liable for any rent until the time when
Landlord can, after notice to Tenant, deliver possession of the Premises to
Tenant. No such failure to give possession on the Scheduled Commencement Date
shall affect the other obligations of Tenant under this Lease, except that if
Landlord is unable to deliver possession of the Premises within ninety (90) days
after the Scheduled Commencement Date (other than as a result of strikes,
shortages of materials, holdover tenancies or similar matters beyond the
reasonable control of Landlord and Tenant is notified by Landlord in writing as
to such delay), Tenant shall have the option to terminate this Lease unless said
delay is as a result of: (a) Tenant's failure to agree to plans and
specifications and/or construction cost estimates or bids; (b) Tenant's request
for materials, finishes or installations other than Landlord's standard except
those, if any, that Landlord shall have expressly agreed to furnish without
extension of time agreed by Landlord; (c) Tenant's change in any plans or
specifications; or, (d) performance or completion by a party employed by Tenant
(each of the foregoing, a "Tenant Delay"). If any delay is the result of a
Tenant Delay, the Commencement Date and the payment of rent under this Lease
shall be accelerated by the number of days of such Tenant Delay.
2.3 In the event Landlord permits Tenant, or any agent, employee or
contractor of Tenant, to enter, use or occupy the Premises prior to the
Commencement Date, such entry, use or occupancy shall be subject to all the
provisions of this Lease other than the payment of rent, including, without
limitation, Tenant's compliance with the insurance requirements of Article 11.
Said early possession shall not advance the Termination Date.
3. RENT.
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from time
to time by paying the Monthly Installment of Rent then in effect on or before
the first day of each full calendar month during the Term, except that the first
full month's rent shall be paid upon the execution of this Lease. The Monthly
Installment of Rent in effect at any time shall be one-twelfth (1/12) of the
Annual Rent in effect at such time. Rent for any period during the Term which is
less than a full month shall be a prorated portion of the Monthly Installment of
Rent based upon the number of days in such month. Said rent shall be paid to
Landlord, without deduction or offset and without notice or demand, at the Rent
Payment Address, as set forth on the Reference Pages, or to such other person or
at such other place as Landlord may from time to time designate in writing. If
an Event of Default occurs, Landlord may require by notice to Tenant that all
subsequent rent payments be made by an automatic payment from Tenant's bank
account to Landlord's account, without cost to Landlord. Tenant must implement
such automatic payment system prior to the next scheduled rent payment or within
ten (10) days after Landlord's notice, whichever is later. Unless specified in
this Lease to the contrary, all amounts and sums payable by Tenant to Landlord
pursuant to this Lease shall be deemed additional rent.
3.2 Tenant recognizes that late payment of any rent or other sum due
under this Lease will result in administrative expense to Landlord, the extent
of which additional expense is extremely difficult and economically impractical
to ascertain. Tenant therefore agrees that if rent or any other sum is not paid
when due and payable pursuant to this Lease, a late charge shall be imposed in
an amount equal to the greater of: (a) Fifty Dollars ($50.00), or (b) six
percent (6%) of the unpaid rent or other payment. The amount of the late charge
to be paid by
6
Tenant shall be reassessed and added to Tenant's obligation for each successive
month until paid. The late charge shall be waived if Tenant's payment is late
due to forces beyond reasonable control of the Tenant. The provisions of this
Section 3.2 in no way relieve Tenant of the obligation to pay rent or other
payments on or before the date on which they are due, nor do the terms of this
Section 3.2 in any way affect Landlord's remedies pursuant to Article 19 of this
Lease in the event said rent or other payment is unpaid after date due.
4. RENT ADJUSTMENTS.
4.1 For the purpose of this Article 4, the following terms are defined
as follows:
4.1.1 LEASE YEAR: Each fiscal year (as determined by Landlord from
time to time) falling partly or wholly within the Term.
4.1.2 EXPENSES: All costs of operation, maintenance, repair,
replacement and management of the Building (including the amount of any credits
which Landlord may grant to particular tenants of the Building in lieu of
providing any standard services or paying any standard costs described in this
Section 4.1.2 for similar tenants), as determined in accordance with generally
accepted accounting principles, including the following costs by way of
illustration, but not limitation: water and sewer charges; insurance charges of
or relating to all insurance policies and endorsements deemed by Landlord to be
reasonably necessary or desirable and relating in any manner to the protection,
preservation, or operation of the Building or any part thereof; utility costs,
including, but not limited to, the cost of heat, light, power, steam, gas; waste
disposal; the cost of janitorial services; the cost of security and alarm
services (including any central station signaling system); costs of cleaning,
repairing, replacing and maintaining the common areas, including parking and
landscaping, window cleaning costs; labor costs; costs and expenses of managing
the Building including management and/or administrative fees; air conditioning
maintenance costs; elevator maintenance fees and supplies; material costs;
equipment costs including the cost of maintenance, repair and service agreements
and rental and leasing costs; purchase costs of equipment; current rental and
leasing costs of items which would be capital items if purchased; tool costs;
licenses, permits and inspection fees; wages and salaries; employee benefits and
payroll taxes; accounting and legal fees; any sales, use or service taxes
incurred in connection therewith. In addition, Landlord shall be entitled to
recover, as additional rent (which, along with any other capital expenditures
constituting Expenses, Landlord may either include in Expenses or cause to be
billed to Tenant along with Expenses and Taxes but as a separate item), Tenant's
Proportionate Share of: (i) an allocable portion of the cost of capital
improvement items which are reasonably calculated to reduce operating expenses;
(ii) the cost of fire sprinklers and suppression systems and other life safety
systems; and (iii) other capital expenses which are required under any
governmental laws, regulations or ordinances which were not applicable to the
Building at the time it was constructed; but the costs described in this
sentence shall be amortized over the reasonable life of such expenditures in
accordance with such reasonable life and amortization schedules as shall be
determined by Landlord in accordance with generally accepted accounting
principles, with interest on the unamortized amount at one percent (1%) in
excess of the Wall Street Journal prime lending rate announced from time to
time. Expenses shall not include depreciation or amortization of the Building or
equipment in the Building except as provided herein, loan principal payments,
costs of alterations of tenants' premises, leasing commissions, interest
expenses on long-term borrowings or advertising costs.
4.1.3 TAXES: Real estate taxes and any other taxes, charges and
assessments which are levied with respect to the Building or the land
appurtenant to the Building, or with respect to any improvements, fixtures and
equipment or other property of Landlord, real or personal, located in the
Building and used in connection with the operation of the Building and said
land, any payments to any ground lessor in reimbursement of tax payments made by
such lessor; and all fees, expenses and costs incurred by Landlord in
investigating, protesting, contesting or in any way seeking to reduce or avoid
increase in any assessments, levies or the tax rate pertaining to any Taxes to
be paid by Landlord in any Lease Year. Taxes shall not include any corporate
franchise, or estate, inheritance or net income tax, or tax imposed upon any
transfer by Landlord of its interest in this Lease or the Building or any taxes
to be paid by Tenant pursuant to Article 28.
4.2 Tenant shall pay as additional rent for each Lease Year Tenant's
Proportionate Share of Expenses and Taxes incurred for such Lease Year.
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4.3 The annual determination of Expenses shall be made by Landlord and
shall be binding upon Landlord and Tenant, subject to the provisions of this
Section 4.3. During the Term, Tenant may review, at Tenant's sole cost and
expense, the books and records supporting such determination in an office of
Landlord, or Landlord's agent, during normal business hours, upon giving
Landlord five (5) days advance written notice within sixty (60) days after
receipt of such determination, but in no event more often than once in any one
(1) year period, subject to execution of a confidentiality agreement acceptable
to Landlord, and provided that if Tenant utilizes an independent accountant to
perform such review it shall be one of national standing which is reasonably
acceptable to Landlord, is not compensated on a contingency basis and is also
subject to such confidentiality agreement. If Tenant fails to object to
Landlord's determination of Expenses within ninety (90) days after receipt, or
if any such objection fails to state with specificity the reason for the
objection, Tenant shall be deemed to have approved such determination and shall
have no further right to object to or contest such determination. In the event
that during all or any portion of any Lease Year or Base Year, the Building is
not fully rented and occupied Landlord shall make an appropriate adjustment in
occupancy-related Expenses for such year for the purpose of avoiding distortion
of the amount of such Expenses to be attributed to Tenant by reason of variation
in total occupancy of the Building, by employing consistent and sound accounting
and management principles to determine Expenses that would have been paid or
incurred by Landlord had the Building been at least ninety-five percent (95%)
rented and occupied, and the amount so determined shall be deemed to have been
Expenses for such Lease Year.
4.4 Prior to the actual determination thereof for a Lease Year, Landlord
may from time to time estimate Tenant's liability for Expenses and/or Taxes
under Section 4.2, Article 6 and Article 28 for the Lease Year or portion
thereof. Landlord will give Tenant written notification of the amount of such
estimate and Tenant agrees that it will pay, by increase of its Monthly
Installments of Rent due in such Lease Year, additional rent in the amount of
such estimate. Any such increased rate of Monthly Installments of Rent pursuant
to this Section 4.4 shall remain in effect until further written notification to
Tenant pursuant hereto.
4.5 When the above mentioned actual determination of Tenant's liability
for Expenses and/or Taxes is made for any Lease Year and when Tenant is so
notified in writing, then:
4.5.1 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Expenses and/or Taxes for the Lease Year is less than
Tenant's liability for Expenses and/or Taxes, then Tenant shall pay such
deficiency to Landlord as additional rent in one lump sum within thirty (30)
days of receipt of Landlord's ▇▇▇▇ therefor; and
4.5.2 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Expenses and/or Taxes for the Lease Year is more than
Tenant's liability for Expenses and/or Taxes, then Landlord shall credit the
difference against the then next due payments to be made by Tenant under this
Article 4, or, if the Lease has terminated, refund the difference in cash.
4.6 If the Commencement Date is other than January 1 or if the
Termination Date is other than December 31, Tenant's liability for Expenses and
Taxes for the Lease Year in which said Date occurs shall be prorated based upon
a three hundred sixty-five (365) day year.
5. SECURITY DEPOSIT. Tenant shall deposit the Security Deposit with Landlord
upon the execution of this Lease. Said sum shall be held by Landlord as security
for the faithful performance by Tenant of all the terms, covenants and
conditions of this Lease to be kept and performed by Tenant and not as an
advance rental deposit or as a measure of Landlord's damage in case of Tenant's
default. If Tenant defaults with respect to any provision of this Lease,
Landlord may use any part of the Security Deposit for the payment of any rent or
any other sum in default, or for the payment of any amount which Landlord may
spend or become obligated to spend by reason of Tenant's default, or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion is so used, Tenant shall within five
(5) days after written demand therefor, deposit with Landlord an amount
sufficient to restore the Security Deposit to its original amount and Tenant's
failure to do so shall be a material breach of this Lease. Except to such
extent, if any, as shall be required by law, Landlord shall not be required to
keep the Security Deposit separate from its general funds, and Tenant shall not
be entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the Security
Deposit or any balance thereof shall be returned to Tenant at such time after
termination of this Lease when Landlord shall have determined that all of
Tenant's obligations under this Lease have been fulfilled.
8
6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in EXHIBIT B to
this Lease, Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, but not limited to, the attachment of any
fixtures or equipment in, on, or to the Premises or any part thereof or the
making of any improvements as required by Article 7, without the prior written
consent of Landlord. When applying for such consent, Tenant shall, if requested
by Landlord, furnish complete plans and specifications for such alterations,
additions and improvements. Landlord's consent shall not be unreasonably
withheld with respect to alterations which (i) are not structural in nature,
(ii) are not visible from the exterior of the Building, (iii) do not affect or
require modification of the Building's electrical, mechanical, plumbing, HVAC or
other systems, and (iv) in aggregate do not cost more than $5.00 per rentable
square foot of that portion of the Premises affected by the alterations in
question.
6.2 In the event Landlord consents to the making of any such alteration,
addition or improvement by Tenant, the same shall be made by using either
Landlord's contractor or a contractor reasonably approved by Landlord, in either
event at Tenant's sole cost and expense. If Tenant shall employ any contractor
other than Landlord's contractor and such other contractor or any subcontractor
of such other contractor shall employ any non-union labor or supplier, Tenant
shall be responsible for and hold Landlord harmless from any and all delays,
damages and extra costs suffered by Landlord as a result of any dispute with any
labor unions concerning the wage, hours, terms or conditions of the employment
of any such labor. In any event Landlord may charge Tenant a construction
management fee not to exceed five percent (5%) of the cost of such work to cover
its overhead as it relates to such proposed work, plus third-party costs
actually incurred by Landlord in connection with the proposed work and the
design thereof, with all such amounts being due five (5) days after Landlord's
demand.
6.3 All alterations, additions or improvements proposed by Tenant shall
be constructed in accordance with all government laws, ordinances, rules and
regulations, using Building standard materials where applicable, and Tenant
shall, prior to construction, provide the additional insurance required under
Article 11 in such case, and also all such assurances to Landlord as Landlord
shall reasonably require to assure payment of the costs thereof, including but
not limited to, notices of non-responsibility, waivers of lien, surety company
performance bonds and funded construction escrows and to protect Landlord and
the Building and appurtenant land against any loss from any mechanic's,
materialmen's or other liens. Tenant shall pay in addition to any sums due
pursuant to Article 4, any increase in real estate taxes attributable to any
such alteration, addition or improvement for so long, during the Term, as such
increase is ascertainable; at Landlord's election said sums shall be paid in the
same way as sums due under Article 4.
7. REPAIR.
7.1 Landlord shall have no obligation to alter, remodel, improve,
repair, decorate or paint the Premises, except as specified in EXHIBIT B if
attached to this Lease and except that Landlord shall repair and maintain the
structural portions of the roof, foundation, exterior glass and plate glass
unless damaged by Tenant, and walls of the Building. By taking possession of the
Premises, Tenant accepts them as being in good order, condition and repair and
in the condition in which Landlord is obligated to deliver them, except as set
forth in the punch list to be delivered pursuant to Section 2.1. It is hereby
understood and agreed that no representations respecting the condition of the
Premises or the Building have been made by Landlord to Tenant, except as
specifically set forth in this Lease. Landlord shall not be liable for any
failure to make any repairs or to perform any maintenance unless such failure
shall persist for an unreasonable time after written notice of the need of such
repairs or maintenance is given to Landlord by Tenant.
7.2 Tenant shall at its own cost and expense keep and maintain all parts
of the Premises and such portion of the Building and improvements as are within
the exclusive control of Tenant in good condition, promptly making all necessary
repairs and replacements, whether ordinary or extraordinary, with materials and
workmanship of the same character, kind and quality as the original (including,
but not limited to, repair and replacement of all fixtures installed by Tenant,
water heaters serving the Premises, exterior glass and plate glass if damaged by
Tenant, doors, exterior stairs, skylights, any special office entries, interior
walls and finish work, floors and floor coverings, heating and air conditioning
systems serving the Premises, electrical systems and fixtures, sprinkler
systems, dock boards, truck doors, dock bumpers, plumbing work and fixtures, and
performance of regular removal of trash and debris). Tenant as part of its
obligations hereunder shall keep the Premises in a clean and sanitary condition.
Tenant
9
will, as far as possible keep all such parts of the Premises from deterioration
due to ordinary wear and from falling temporarily out of repair, and upon
termination of this Lease in any way Tenant will yield up the Premises to
Landlord in good condition and repair, loss by fire or other casualty excepted
(but not excepting any damage to glass). Tenant shall, at its own cost and
expense, repair any damage to the Premises or the Building resulting from and/or
caused in whole or in part by the negligence or misconduct of Tenant, its
agents, employees, contractors, invitees, or any other person entering upon the
Premises as a result of Tenant's business activities or caused by Tenant's
default hereunder.
7.3 Except as provided in Article 22, there shall be no abatement of
rent and no liability of Landlord by reason of any injury to or interference
with Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or to
fixtures, appurtenances and equipment in the Building. Except to the extent, if
any, prohibited by law, Tenant waives the right to make repairs at Landlord's
expense under any law, statute or ordinance now or hereafter in effect.
7.4 Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord for servicing all heating and air conditioning systems and
equipment serving the Premises (and a copy thereof shall be furnished to
Landlord). The service contract must include all services suggested by the
equipment manufacturer in the operation/maintenance manual and must become
effective within thirty (30) days of the date Tenant takes possession of the
Premises. Should Tenant fail to do so, Landlord may, upon notice to Tenant,
enter into such a maintenance/ service contract on behalf of Tenant or perform
the work and in either case, charge Tenant the cost thereof along with a
reasonable amount for Landlord's overhead.
7.5 Landlord shall coordinate any repairs and other maintenance of any
railroad tracks serving the Building and, if Tenant uses such rail tracks,
Tenant shall reimburse Landlord or the railroad company from time to time upon
demand, as additional rent, for its share of the costs of such repair and
maintenance and for any other sums specified in any agreement to which Landlord
or Tenant is a party respecting such tracks, such costs to be borne
proportionately by all tenants in the Building using such rail tracks, based
upon the actual number of rail cars shipped and received by such tenant during
each calendar year during the Term.
8. LIENS. Tenant shall keep the Premises, the Building and appurtenant land
and Tenant's leasehold interest in the Premises free from any liens arising out
of any services, work or materials performed, furnished, or contracted for by
Tenant, or obligations incurred by Tenant. In the event that Tenant fails,
within ten (10) days following the imposition of any such lien, to either cause
the same to be released of record or provide Landlord with insurance against the
same issued by a major title insurance company or such other protection against
the same as Landlord shall accept (such failure to constitute an Event of
Default), Landlord shall have the right to cause the same to be released by such
means as it shall deem proper, including payment of the claim giving rise to
such lien. All such sums paid by Landlord and all expenses incurred by it in
connection therewith shall be payable to it by Tenant within five (5) days
Landlord's demand.
9. ASSIGNMENT AND SUBLETTING.
9.1 Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises whether voluntarily or by operation
of law, or permit the use or occupancy of the Premises by anyone other than
Tenant, and shall not make, suffer or permit such assignment, subleasing or
occupancy without the prior written consent of Landlord, such consent not to be
unreasonably withheld, and said restrictions shall be binding upon any and all
assignees of the Lease and subtenants of the Premises. In the event Tenant
desires to sublet, or permit such occupancy of, the Premises, or any portion
thereof, or assign this Lease, Tenant shall give written notice thereof to
Landlord at least thirty (30) days but no more than one hundred twenty (120)
days prior to the proposed commencement date of such subletting or assignment,
which notice shall set forth the name of the proposed subtenant or assignee, the
relevant terms of any sublease or assignment and copies of financial reports and
other relevant financial information of the proposed subtenant or assignee.
9.2 Notwithstanding any assignment or subletting, permitted or
otherwise, Tenant shall at all times remain directly, primarily and fully
responsible and liable for the payment of the rent specified in this Lease and
for compliance with all of its other obligations under the terms, provisions and
covenants of this Lease. Upon the
10
occurrence of an Event of Default, if the Premises or any part of them are then
assigned or sublet, Landlord, in addition to any other remedies provided in this
Lease or provided by law, may, at its option, collect directly from such
assignee or subtenant all rents due and becoming due to Tenant under such
assignment or sublease and apply such rent against any sums due to Landlord from
Tenant under this Lease, and no such collection shall be construed to constitute
a novation or release of Tenant from the further performance of Tenant's
obligations under this Lease.
9.3 In addition to Landlord's right to approve of any subtenant or
assignee, Landlord shall have the option, in its sole discretion, in the event
of any proposed subletting or assignment, to terminate this Lease, or in the
case of a proposed subletting of less than the entire Premises, to recapture the
portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised, if at all, by
Landlord giving Tenant written notice given by Landlord to Tenant within thirty
(30) days following Landlord's receipt of Tenant's written notice as required
above. However, if Tenant notifies Landlord, within five (5) days after receipt
of Landlord's termination notice, that Tenant is rescinding its proposed
assignment or sublease, the termination notice shall be void and the Lease shall
continue in full force and effect. If this Lease shall be terminated with
respect to the entire Premises pursuant to this Section, the Term of this Lease
shall end on the date stated in Tenant's notice as the effective date of the
sublease or assignment as if that date had been originally fixed in this Lease
for the expiration of the Term. If Landlord recaptures under this Section only a
portion of the Premises, the rent to be paid from time to time during the
unexpired Term shall ▇▇▇▇▇ proportionately based on the proportion by which the
approximate square footage of the remaining portion of the Premises shall be
less than that of the Premises as of the date immediately prior to such
recapture. Tenant shall, at Tenant's own cost and expense, discharge in full any
outstanding commission obligation which may be due and owing as a result of any
proposed assignment or subletting, whether or not the Premises are recaptured
pursuant to this Section 9.3 and rented by Landlord to the proposed tenant or
any other tenant.
9.4 In the event that Tenant sells, sublets, assigns or transfers this
Lease, Tenant shall pay to Landlord as additional rent an amount equal to one
hundred percent (100%) of any Increased Rent (as defined below), less the Costs
Component (as defined below), when and as such Increased Rent is received by
Tenant. As used in this Section, "Increased Rent" shall mean the excess of (i)
all rent and other consideration which Tenant is entitled to receive by reason
of any sale, sublease, assignment or other transfer of this Lease, over (ii) the
rent otherwise payable by Tenant under this Lease at such time. For purposes of
the foregoing, any consideration received by Tenant in form other than cash
shall be valued at its fair market value as determined by Landlord in good
faith. The "Costs Component" is that amount which, if paid monthly, would fully
amortize on a straight-line basis, over the entire period for which Tenant is to
receive Increased Rent, the reasonable costs incurred by Tenant for leasing
commissions and tenant improvements in connection with such sublease, assignment
or other transfer.
9.5 Notwithstanding any other provision hereof, it shall be considered
reasonable for Landlord to withhold its consent to any assignment of this Lease
or sublease of any portion of the Premises if at the time of either Tenant's
notice of the proposed assignment or sublease or the proposed commencement date
thereof, there shall exist any uncured default of Tenant or matter which will
become a default of Tenant with passage of time unless cured, or if the proposed
assignee or sublessee is an entity: (a) with which Landlord is already in
negotiation; (b) is already an occupant of the Building unless Landlord is
unable to provide the amount of space required by such occupant; (c) is a
governmental agency; (d) is incompatible with the character of occupancy of the
Building; (e) with which the payment for the sublease or assignment is
determined in whole or in part based upon its net income or profits; or (f)
would subject the Premises to a use which would: (i) involve increased personnel
or wear upon the Building; (ii) violate any exclusive right granted to another
tenant of the Building; (iii) require any addition to or modification of the
Premises or the Building in order to comply with building code or other
governmental requirements; or, (iv) involve a violation of Section 1.2. Tenant
expressly agrees that for the purposes of any statutory or other requirement of
reasonableness on the part of Landlord, Landlord's refusal to consent to any
assignment or sublease for any of the reasons described in this Section 9.5,
shall be conclusively deemed to be reasonable.
9.6 Upon any request to assign or sublet, Tenant will pay to Landlord
the Assignment/Subletting Fee plus, on demand, a sum equal to all of Landlord's
costs, including reasonable attorney's fees, incurred in investigating and
considering any proposed or purported assignment or pledge of this Lease or
sublease of any of the Premises, regardless of whether Landlord shall consent
to, refuse consent, or determine that Landlord's consent is
11
not required for, such assignment, pledge or sublease. Any purported sale,
assignment, mortgage, transfer of this Lease or subletting which does not comply
with the provisions of this Article 9 shall be void.
9.7 If Tenant is a corporation, limited liability company, partnership
or trust, any transfer or transfers of or change or changes within any twelve
(12) month period in the number of the outstanding voting shares of the
corporation or limited liability company, the general partnership interests in
the partnership or the identity of the persons or entities controlling the
activities of such partnership or trust resulting in the persons or entities
owning or controlling a majority of such shares, partnership interests or
activities of such partnership or trust at the beginning of such period no
longer having such ownership or control shall be regarded as equivalent to an
assignment of this Lease to the persons or entities acquiring such ownership or
control and shall be subject to all the provisions of this Article 9 to the same
extent and for all intents and purposes as though such an assignment.
10. INDEMNIFICATION. None of the Landlord Entities shall be liable and Tenant
hereby waives all claims against them for any damage to any property or any
injury to any person in or about the Premises or the Building by or from any
cause whatsoever (including without limiting the foregoing, rain or water
leakage of any character from the roof, windows, walls, basement, pipes,
plumbing works or appliances, the Building not being in good condition or
repair, gas, fire, oil, electricity or theft), except to the extent caused by or
arising from the gross negligence or willful misconduct of Landlord or its
agents, employees or contractors. Tenant shall protect, indemnify and hold the
Landlord Entities harmless from and against any and all loss, claims, liability
or costs (including court costs and attorney's fees) incurred by reason of (a)
any damage to any property (including but not limited to property of any
Landlord Entity) or any injury (including but not limited to death) to any
person occurring in, on or about the Premises or the Building to the extent that
such injury or damage shall be caused by or arise from any actual or alleged
act, neglect, fault, or omission by or of Tenant or any Tenant Entity to meet
any standards imposed by any duty with respect to the injury or damage; (b) the
conduct or management of any work or thing whatsoever done by the Tenant in or
about the Premises or from transactions of the Tenant concerning the Premises;
(c) Tenant's failure to comply with any and all governmental laws, ordinances
and regulations applicable to the condition or use of the Premises or its
occupancy; or (d) any breach or default on the part of Tenant in the performance
of any covenant or agreement on the part of the Tenant to be performed pursuant
to this Lease. The provisions of this Article shall survive the termination of
this Lease with respect to any claims or liability accruing prior to such
termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability insurance policy or policies to protect the Landlord Entities
against any liability to the public or to any invitee of Tenant or a Landlord
Entity incidental to the use of or resulting from any accident occurring in or
upon the Premises with a limit of not less than $1,000,000 per occurrence and
not less than $2,000,000 in the annual aggregate, or such larger amount as
Landlord may prudently require from time to time, covering bodily injury and
property damage liability and $1,000,000 products/completed operations
aggregate; (b) Business Auto Liability covering owned, non-owned and hired
vehicles with a limit of not less than $1,000,000 per accident; (c) insurance
protecting against liability under Worker's Compensation Laws with limits at
least as required by statute with Employers Liability with limits of $500,000
each accident, $500,000 disease policy limit, $500,000 disease--each employee;
(d) All Risk or Special Form coverage protecting Tenant against loss of or
damage to Tenant's alterations, additions, improvements, carpeting, floor
coverings, panelings, decorations, fixtures, inventory and other business
personal property situated in or about the Premises to the full replacement
value of the property so insured; and, (e) Business Interruption Insurance with
limit of liability representing loss of at least approximately six (6) months of
income.
11.2 The aforesaid policies shall (a) be provided at Tenant's expense;
(b) name the Landlord Entities as additional insureds (General Liability) and
loss payee (Property--Special Form); (c) be issued by an insurance company with
a minimum Best's rating of "A:VII" during the Term; and (d) provide that said
insurance shall not be canceled unless thirty (30) days prior written notice
(ten days for non-payment of premium) shall have been given to Landlord; a
certificate of Liability insurance on ▇▇▇▇▇ Form 25 and a certificate of
Property insurance on ▇▇▇▇▇ Form 27 shall be delivered to Landlord by Tenant
upon the Commencement Date and at least thirty (30) days prior to each renewal
of said insurance.
11.3 Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises ("Work") the aforesaid insurance
protection must extend to and include injuries to persons and damage to
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property arising in connection with such Work, without limitation including
liability under any applicable structural work act, and such other insurance as
Landlord shall require; and the policies of or certificates evidencing such
insurance must be delivered to Landlord prior to the commencement of any such
Work.
12. WAIVER OF SUBROGATION. So long as their respective insurers so permit,
Tenant and Landlord hereby mutually waive their respective rights of recovery
against each other for any loss insured by fire, extended coverage, All Risks or
other insurance now or hereafter existing for the benefit of the respective
party but only to the extent of the net insurance proceeds payable under such
policies. Each party shall obtain any special endorsements required by their
insurer to evidence compliance with the aforementioned waiver.
13. SERVICES AND UTILITIES. Tenant shall pay for all water, gas, heat, light,
power, telephone, sewer, sprinkler system charges and other utilities and
services used on or from the Premises, together with any taxes, penalties, and
surcharges or the like pertaining thereto and any maintenance charges for
utilities. Tenant shall furnish all electric light bulbs, tubes and ballasts,
battery packs for emergency lighting and fire extinguishers. If any such
services are not separately metered to Tenant, Tenant shall pay such proportion
of all charges jointly metered with other premises as determined by Landlord, in
its sole discretion, to be reasonable. Any such charges paid by Landlord and
assessed against Tenant shall be immediately payable to Landlord on demand and
shall be additional rent hereunder. Tenant will not, without the written consent
of Landlord, contract with a utility provider to service the Premises with any
utility, including, but not limited to, telecommunications, electricity, water,
sewer or gas, which is not previously providing such service to other tenants
in the Building. Landlord shall in no event be liable for any interruption or
failure of utility services on or to the Premises.
14. HOLDING OVER. Tenant shall pay Landlord for each day Tenant retains
possession of the Premises or part of them after termination of this Lease by
lapse of time or otherwise at the rate ("Holdover Rate") which shall be Two
Hundred Percent (200%) of the greater of (a) the amount of the Annual Rent for
the last period prior to the date of such termination plus all Rent Adjustments
under Article 4; and (b) the then market rental value of the Premises as
determined by Landlord assuming a new lease of the Premises of the then usual
duration and other terms, in either case, prorated on a daily basis, and also
pay all damages sustained by Landlord by reason of such retention. If Landlord
gives notice to Tenant of Landlord's election to such effect, such holding over
shall constitute renewal of this Lease for a period from month to month at the
Holdover Rate, but if the Landlord does not so elect, no such renewal shall
result notwithstanding acceptance by Landlord of any sums due hereunder after
such termination; and instead, a tenancy at sufferance at the Holdover Rate
shall be deemed to have been created. In any event, no provision of this Article
14 shall be deemed to waive Landlord's right of reentry or any other right under
this Lease or at law.
15. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, this Lease
shall be subject and subordinate at all times to ground or underlying leases and
to the lien of any mortgages or deeds of trust now or hereafter placed on,
against or affecting the Building, Landlord's interest or estate in the
Building, or any ground or underlying lease; provided, however, that if the
lessor, mortgagee, trustee, or holder of any such mortgage or deed of trust
elects to have Tenant's interest in this Lease be superior to any such
instrument, then, by notice to Tenant, this Lease shall be deemed superior,
whether this Lease was executed before or after said instrument. Notwithstanding
the foregoing, Tenant covenants and agrees to execute and deliver within ten
(10) days of Landlord's request such further instruments evidencing such
subordination or superiority of this Lease as may be required by Landlord.
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with all
the rules and regulations as set forth in EXHIBIT D to this Lease and all
reasonable and non-discriminatory modifications of and additions to them from
time to time put into effect by Landlord. Landlord shall not be responsible to
Tenant for the non-performance by any other tenant or occupant of the Building
of any such rules and regulations.
17. REENTRY BY LANDLORD.
17.1 Landlord reserves and shall at all times have the right to re-enter
the Premises to inspect the same, to show said Premises to prospective
purchasers, mortgagees or tenants, and to alter, improve or repair the Premises
and any portion of the Building, without abatement of rent, and may for that
purpose erect, use and maintain scaffolding, pipes, conduits and other necessary
structures and open any wall, ceiling or floor in and through the
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Building and Premises where reasonably required by the character of the work to
be performed, provided entrance to the Premises shall not be blocked thereby,
and further provided that the business of Tenant shall not be interfered with
unreasonably. Landlord shall have the right at any time to change the
arrangement and/or locations of entrances, or passageways, doors and doorways,
and corridors, windows, elevators, stairs, toilets or other public parts of the
Building and to change the name, number or designation by which the Building is
commonly known. In the event that Landlord damages any portion of any wall or
wall covering, ceiling, or floor or floor covering within the Premises, Landlord
shall repair or replace the damaged portion to match the original as nearly as
commercially reasonable but shall not be required to repair or replace more than
the portion actually damaged. Tenant hereby waives any claim for damages for any
injury or inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss occasioned by
any action of Landlord authorized by this Article 17.
17.2 For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in the Premises,
excluding Tenant's vaults and safes or special security areas (designated in
advance), and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency to obtain entry to
any portion of the Premises. As to any portion to which access cannot be had by
means of a key or keys in Landlord's possession, Landlord is authorized to gain
access by such means as Landlord shall elect and the cost of repairing any
damage occurring in doing so shall be borne by Tenant and paid to Landlord
within five (5) days of Landlord's demand.
18. DEFAULT.
18.1 Except as otherwise provided in Article 20, the following events
shall be deemed to be Events of Default under this Lease:
18.1.1 Tenant shall fail to pay when due any sum of money becoming
due to be paid to Landlord under this Lease, whether such sum be any installment
of the rent reserved by this Lease, any other amount treated as additional rent
under this Lease, or any other payment or reimbursement to Landlord required by
this Lease, whether or not treated as additional rent under this Lease, and such
failure shall continue for a period of five (5) days after written notice that
such payment was not made when due, but if any such notice shall be given, for
the twelve (12) month period commencing with the date of such notice, the
failure to pay within five (5) days after due any additional sum of money
becoming due to be paid to Landlord under this Lease during such period shall be
an Event of Default, without notice.
18.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within twenty (20) days (forthwith, if
the failure involves a hazardous condition) after written notice of such failure
to Tenant provided, however, that such failure shall not be an event of default
if such failure could not reasonably be cured during such twenty (20) day
period, Tenant has commenced the cure within such twenty (20) day period and
thereafter is diligently pursuing such cure to completion, but the total
aggregate cure period shall not exceed ninety (90) days.
18.1.3 Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only.
18.1.4 Tenant shall become insolvent, admit in writing its inability
to pay its debts generally as they become due, file a petition in bankruptcy or
a petition to take advantage of any insolvency statute, make an assignment for
the benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof.
18.1.5 A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant bankrupt, or appointing a receiver of
Tenant, or of the whole or any substantial part of its property, without the
consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the United
States, as now in effect or hereafter amended, or any state thereof, and such
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order, judgment or decree shall not be vacated or set aside or stayed within
sixty (60) days from the date of entry thereof.
19. REMEDIES.
19.1 Except as otherwise provided in Article 20, upon the occurrence of
any of the Events of Default described or referred to in Article 18, Landlord
shall have the option to pursue any one or more of the following remedies
without any notice or demand whatsoever, concurrently or consecutively and not
alternatively:
19.1.1 Landlord may, at its election, terminate this Lease or
terminate Tenant's right to possession only, without terminating the Lease.
19.1.2 Upon any termination of this Lease, whether by lapse of time
or otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free license to enter into and upon the
Premises in such event and to repossess Landlord of the Premises as of
Landlord's former estate and to expel or remove Tenant and any others who may be
occupying or be within the Premises and to remove Tenant's signs and other
evidence of tenancy and all other property of Tenant therefrom without being
deemed in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom, Tenant
waiving any right to claim damages for such re-entry and expulsion, and without
relinquishing Landlord's right to rent or any other right given to Landlord
under this Lease or by operation of law.
19.1.3 Upon any termination of this Lease, whether by lapse of time
or otherwise, Landlord shall be entitled to recover as damages, all rent,
including any amounts treated as additional rent under this Lease, and other
sums due and payable by Tenant on the date of termination, plus as liquidated
damages and not as a penalty, an amount equal to the sum of: (a) an amount equal
to the then present value of the rent reserved in this Lease for the residue of
the stated Term of this Lease including any amounts treated as additional rent
under this Lease and all other sums provided in this Lease to be paid by Tenant,
minus the fair rental value of the Premises for such residue; (b) the value of
the time and expense necessary to obtain a replacement tenant or tenants, and
the estimated expenses described in Section 19.1.4 relating to recovery of the
Premises, preparation for reletting and for reletting itself; and (c) the cost
of performing any other covenants which would have otherwise been performed by
Tenant.
19.1.4 Upon any termination of Tenant's right to possession only
without termination of the Lease:
19.1.4.1 Neither such termination of Tenant's right to
possession nor Landlord's taking and holding possession thereof as provided in
Section 19.1.2 shall terminate the Lease or release Tenant, in whole or in part,
from any obligation, including Tenant's obligation to pay the rent, including
any amounts treated as additional rent, under this Lease for the full Term, and
if Landlord so elects Tenant shall continue to pay to Landlord the entire amount
of the rent as and when it becomes due, including any amounts treated as
additional rent under this Lease, for the remainder of the Term plus any other
sums provided in this Lease to be paid by Tenant for the remainder of the Term.
19.1.4.2 Landlord shall use commercially reasonable efforts to
relet the Premises or portions thereof to the extent required by applicable law.
Landlord and Tenant agree that nevertheless Landlord shall at most be required
to use only the same efforts Landlord then uses to lease premises in the
Building generally and that in any case that Landlord shall not be required to
give any preference or priority to the showing or leasing of the Premises or
portions thereof over any other space that Landlord may be leasing or have
available and may place a suitable prospective tenant in any such other space
regardless of when such other space becomes available and that Landlord shall
have the right to relet the Premises for a greater or lesser term than that
remaining under this Lease, the right to relet only a portion of the Premises,
or a portion of the Premises or the entire Premises as a part of a larger area,
and the right to change the character or use of the Premises. In connection with
or in preparation for any reletting, Landlord may, but shall not be required to,
make repairs, alterations and additions in or to the Premises and redecorate the
same to the extent Landlord deems necessary or desirable, and Tenant shall pay
the cost thereof,
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together with Landlord's expenses of reletting, including, without limitation,
any commission incurred by Landlord, within five (5) days of Landlord's demand.
Landlord shall not be required to observe any instruction given by Tenant about
any reletting or accept any tenant offered by Tenant unless such offered tenant
has a credit-worthiness acceptable to Landlord and leases the entire Premises
upon terms and conditions including a rate of rent (after giving effect to all
expenditures by Landlord for tenant improvements, broker's commissions and other
leasing costs) all no less favorable to Landlord than as called for in this
Lease, nor shall Landlord be required to make or permit any assignment or
sublease for more than the current term or which Landlord would not be required
to permit under the provisions of Article 9.
19.1.4.3 Until such time as Landlord shall elect to terminate
the Lease and shall thereupon be entitled to recover the amounts specified in
such case in Section 19.1.3, Tenant shall pay to Landlord upon demand the full
amount of all rent, including any amounts treated as additional rent under this
Lease and other sums reserved in this Lease for the remaining Term, together
with the costs of repairs, alterations, additions, redecorating and Landlord's
expenses of reletting and the collection of the rent accruing therefrom
(including reasonable attorney's fees and broker's commissions), as the same
shall then be due or become due from time to time, less only such consideration
as Landlord may have received from any reletting of the Premises; and Tenant
agrees that Landlord may file suits from time to time to recover any sums
falling due under this Article 19 as they become due. Any proceeds of reletting
by Landlord in excess of the amount then owed by Tenant to Landlord from time to
time shall be credited against Tenant's future obligations under this Lease but
shall not otherwise be refunded to Tenant or inure to Tenant's benefit.
19.2 Upon the occurrence of an Event of Default, Landlord may (but shall
not be obligated to) cure such default at Tenant's sole expense. Without
limiting the generality of the foregoing, Landlord may, at Landlord's option,
enter into and upon the Premises if Landlord determines in its sole discretion
that Tenant is not acting within a commercially reasonable time to maintain,
repair or replace anything for which Tenant is responsible under this Lease or
to otherwise effect compliance with its obligations under this Lease and correct
the same, without being deemed in any manner guilty of trespass, eviction or
forcible entry and detainer and without incurring any liability for any damage
or interruption of Tenant's business resulting therefrom and Tenant agrees to
reimburse Landlord within five (5) days of Landlord's demand as additional rent,
for any expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease, plus interest from the date of
expenditure by Landlord at the Wall Street Journal prime rate.
19.3 Tenant understands and agrees that in entering into this Lease,
Landlord is relying upon receipt of all the Annual and Monthly Installments of
Rent to become due with respect to all the Premises originally leased hereunder
over the full Initial Term of this Lease for amortization, including interest at
the Amortization Rate. For purposes hereof, the "Concession Amount" shall be
defined as the aggregate of all amounts forgone or expended by Landlord as free
rent under the lease, under EXHIBIT B hereof for construction allowances
(excluding therefrom any amounts expended by Landlord for Landlord's Work, as
defined in EXHIBIT B), and for brokers' commissions payable by reason of this
Lease. Accordingly, Tenant agrees that if this Lease or Tenant's right to
possession of the Premises leased hereunder shall be terminated as of any date
("Default Termination Date") prior to the expiration of the full Initial Term
hereof by reason of a default of Tenant, there shall be due and owing to
Landlord as of the day prior to the Default Termination Date, as rent in
addition to all other amounts owed by Tenant as of such Date, the amount
("Unamortized Amount") of the Concession Amount determined as set forth below;
provided, however, that in the event that such amounts are recovered by Landlord
pursuant to any other provision of this Article 19, Landlord agrees that it
shall not attempt to recover such amounts pursuant to this Paragraph 19.3. For
the purposes hereof, the Unamortized Amount shall be determined in the same
manner as the remaining principal balance of a mortgage with interest at the
Amortization Rate payable in level payments over the same length of time as from
the effectuation of the Concession concerned to the end of the full Initial Term
of this Lease would be determined. The foregoing provisions shall also apply to
and upon any reduction of space in the Premises, as though such reduction were a
termination for Tenant's default, except that (i) the Unamortized Amount shall
be reduced by any amounts paid by Tenant to Landlord to effectuate such
reduction and (ii) the manner of application shall be that the Unamortized
Amount shall first be determined as though for a full termination as of the
Effective Date of the elimination of the portion, but then the amount so
determined shall be multiplied by the fraction of which the numerator is the
rentable square footage of the eliminated portion and the denominator is the
rentable square footage of the Premises originally leased hereunder; and the
amount thus obtained shall be the Unamortized Amount.
16
19.4 If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney or
collection agency concerning or to enforce or defend any of Landlord's rights or
remedies arising under this Lease or to collect any sums due from Tenant, Tenant
agrees to pay all costs and fees so incurred by Landlord, including, without
limitation, reasonable attorneys' fees and costs. TENANT EXPRESSLY WAIVES ANY
RIGHT TO: (A) TRIAL BY JURY; AND (B) SERVICE OF ANY NOTICE REQUIRED BY ANY
PRESENT OR FUTURE LAW OR ORDINANCE APPLICABLE TO LANDLORDS OR TENANTS BUT NOT
REQUIRED BY THE TERMS OF THIS LEASE.
19.5 Pursuit of any of the foregoing remedies shall not preclude pursuit
of any of the other remedies provided in this Lease or any other remedies
provided by law (all such remedies being cumulative), nor shall pursuit of any
remedy provided in this Lease constitute a forfeiture or waiver of any rent due
to Landlord under this Lease or of any damages accruing to Landlord by reason of
the violation of any of the terms, provisions and covenants contained in this
Lease.
19.6 No act or thing done by Landlord or its agents during the Term shall
be deemed a termination of this Lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this Lease or accept a surrender of said
Premises shall be valid, unless in writing signed by Landlord. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants contained in this Lease shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease. Landlord's acceptance of the payment of
rental or other payments after the occurrence of an Event of Default shall not
be construed as a waiver of such Default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord in enforcing one or more of the remedies
provided in this Lease upon an Event of Default shall not be deemed or construed
to constitute a waiver of such Default or of Landlord's right to enforce any
such remedies with respect to such Default or any subsequent Default.
19.7 To secure the payment of all rentals and other sums of money
becoming due from Tenant under this Lease, Landlord shall have and Tenant grants
to Landlord a first lien upon the leasehold interest of Tenant under this Lease,
which lien may be enforced in equity, and a continuing security interest upon
all goods, wares, equipment, fixtures, furniture, inventory, accounts, contract
rights, chattel paper and other personal property of Tenant situated on the
Premises, and such property shall not be removed therefrom without the consent
of Landlord until all arrearages in rent as well as any and all other sums of
money then due to Landlord under this Lease shall first have been paid and
discharged. Upon the occurrence of an Event of Default, Landlord shall have, in
addition to any other remedies provided in this Lease or by law, all rights and
remedies under the Uniform Commercial Code, including without limitation the
right to sell the property described in this Section 19.7 at public or private
sale upon five (5) days' notice to Tenant. Tenant shall execute all such
financing statements and other instruments as shall be deemed necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created.
19.8 Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled, may be handled, removed and/or stored, as the case may be,
by or at the direction of Landlord but at the risk, cost and expense of Tenant,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a ▇▇▇▇ of sale
without further payment or credit by Landlord to Tenant.
19.9 If more than one (1) Event of Default occurs during the Term or any
renewal thereof, Tenant's renewal options, expansion options, purchase options
and rights of first offer and/or refusal, if any are provided for in this Lease,
shall be null and void.
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20. TENANT'S BANKRUPTCY OR INSOLVENCY.
20.1 If at any time and for so long as Tenant shall be subjected to the
provisions of the United States Bankruptcy Code or other law of the United
States or any state thereof for the protection of debtors as in effect at such
time (each a "Debtor's Law"):
20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or
receiver of Tenant's assets (each a "Tenant's Representative") shall have no
greater right to assume or assign this Lease or any interest in this Lease, or
to sublease any of the Premises than accorded to Tenant in Article 9, except to
the extent Landlord shall be required to permit such assumption, assignment or
sublease by the provisions of such Debtor's Law. Without limitation of the
generality of the foregoing, any right of any Tenant's Representative to assume
or assign this Lease or to sublease any of the Premises shall be subject to the
conditions that:
20.1.1.1 Such Debtor's Law shall provide to Tenant's
Representative a right of assumption of this Lease which Tenant's Representative
shall have timely exercised and Tenant's Representative shall have fully cured
any default of Tenant under this Lease.
20.1.1.2 Tenant's Representative or the proposed assignee, as
the case shall be, shall have deposited with Landlord as security for the timely
payment of rent an amount equal to the larger of: (a) three (3) months' rent and
other monetary charges accruing under this Lease; and (b) any sum specified in
Article 5; and shall have provided Landlord with adequate other assurance of the
future performance of the obligations of the Tenant under this Lease. Without
limitation, such assurances shall include, at least, in the case of assumption
of this Lease, demonstration to the satisfaction of the Landlord that Tenant's
Representative has and will continue to have sufficient unencumbered assets
after the payment of all secured obligations and administrative expenses to
assure Landlord that Tenant's Representative will have sufficient funds to
fulfill the obligations of Tenant under this Lease; and, in the case of
assignment, submission of current financial statements of the proposed assignee,
audited by an independent certified public accountant reasonably acceptable to
Landlord and showing a net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance by such assignee of
all of the Tenant's obligations under this Lease.
20.1.1.3 The assumption or any contemplated assignment of this
Lease or subleasing any part of the Premises, as shall be the case, will not
breach any provision in any other lease, mortgage, financing agreement or other
agreement by which Landlord is bound.
20.1.1.4 Landlord shall have, or would have had absent the
Debtor's Law, no right under Article 9 to refuse consent to the proposed
assignment or sublease by reason of the identity or nature of the proposed
assignee or sublessee or the proposed use of the Premises concerned.
21. QUIET ENJOYMENT. Landlord represents and warrants that it has full right
and authority to enter into this Lease and that Tenant, while paying the rental
and performing its other covenants and agreements contained in this Lease, shall
peaceably and quietly have, hold and enjoy the Premises for the Term without
hindrance or molestation from Landlord subject to the terms and provisions of
this Lease. Landlord shall not be liable for any interference or disturbance by
other tenants or third persons, nor shall Tenant be released from any of the
obligations of this Lease because of such interference or disturbance.
22. CASUALTY
22.1 In the event the Premises or the Building are damaged by fire or
other cause and in Landlord's reasonable estimation such damage can be
materially restored within one hundred eighty (180) days, Landlord shall
forthwith repair the same and this Lease shall remain in full force and effect,
except that Tenant shall be entitled to a proportionate abatement in rent from
the date of such damage. Such abatement of rent shall be made pro rata in
accordance with the extent to which the damage and the making of such repairs
shall interfere with the use and occupancy by Tenant of the Premises from time
to time. Within forty-five (45) days from the date of such damage, Landlord
shall notify Tenant, in writing, of Landlord's reasonable estimation of the
length of time within which material restoration can be made, and Landlord's
determination shall be binding on Tenant. For purposes of this
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Lease, the Building or Premises shall be deemed "materially restored" if they
are in such condition as would not prevent or materially interfere with Tenant's
use of the Premises for the purpose for which it was being used immediately
before such damage.
22.2 If such repairs cannot, in Landlord's reasonable estimation, be made
within one hundred eighty (180) days, Landlord and Tenant shall each have the
option of giving the other, at any time within ninety (90) days after such
damage, notice terminating this Lease as of the date of such damage. In the
event of the giving of such notice, this Lease shall expire and all interest of
the Tenant in the Premises shall terminate as of the date of such damage as if
such date had been originally fixed in this Lease for the expiration of the
Term. In the event that neither Landlord nor Tenant exercises its option to
terminate this Lease, then Landlord shall repair or restore such damage, this
Lease continuing in full force and effect, and the rent hereunder shall be
proportionately abated as provided in Section 22.1.
22.3 Landlord shall not be required to repair or replace any damage or
loss by or from fire or other cause to any panelings, decorations, partitions,
additions, railings, ceilings, floor coverings, office fixtures or any other
property or improvements installed on the Premises by, or belonging to, Tenant.
Any insurance which may be carried by Landlord or Tenant against loss or damage
to the Building or Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control.
22.4 In the event that Landlord should fail to complete such repairs and
material restoration within sixty (60) days after the date estimated by Landlord
therefor as extended by this Section 22.4, Tenant may at its option and as its
sole remedy terminate this Lease by delivering written notice to Landlord,
within fifteen (15) days after the expiration of said period of time, whereupon
the Lease shall end on the date of such notice or such later date fixed in such
notice as if the date of such notice was the date originally fixed in this Lease
for the expiration of the Term; provided, however, that if construction is
delayed because of changes, deletions or additions in construction requested by
Tenant, strikes, lockouts, casualties, Acts of God, war, material or labor
shortages, government regulation or control or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or rebuilding
shall be extended for the amount of time Landlord is so delayed.
22.5 Notwithstanding anything to the contrary contained in this Article:
(a) Landlord shall not have any obligation whatsoever to repair, reconstruct, or
restore the Premises when the damages resulting from any casualty covered by the
provisions of this Article 22 occur during the last twelve (12) months of the
Term or any extension thereof, but if Landlord determines not to repair such
damages Landlord shall notify Tenant and if such damages shall render any
material portion of the Premises untenantable Tenant shall have the right to
terminate this Lease by notice to Landlord within fifteen (15) days after
receipt of Landlord's notice; and (b) in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises or
Building requires that any insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon this Lease shall end on the date of such
damage as if the date of such damage were the date originally fixed in this
Lease for the expiration of the Term.
22.6 In the event of any damage or destruction to the Building or
Premises by any peril covered by the provisions of this Article 22, it shall be
Tenant's responsibility to properly secure the Premises and upon notice from
Landlord to remove forthwith, at its sole cost and expense, such portion of all
of the property belonging to Tenant or its licensees from such portion or all of
the Building or Premises as Landlord shall request.
23. EMINENT DOMAIN. If all or any substantial part of the Premises shall be
taken or appropriated by any public or quasi-public authority under the power of
eminent domain, or conveyance in lieu of such appropriation, either party to
this Lease shall have the right, at its option, of giving the other, at any time
within thirty (30) days after such taking, notice terminating this Lease, except
that Tenant may only terminate this Lease by reason of taking or appropriation,
if such taking or appropriation shall be so substantial as to materially
interfere with Tenant's use and occupancy of the Premises. If neither party to
this Lease shall so elect to terminate this Lease, the rental thereafter to be
paid shall be adjusted on a fair and equitable basis under the circumstances. In
addition to the rights of Landlord above, if any substantial part of the
Building shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain or conveyance in lieu thereof, and regardless
of whether the Premises or any part thereof are so taken or appropriated,
Landlord shall have the right, at its sole option, to
19
terminate this Lease. Landlord shall be entitled to any and all income, rent,
award, or any interest whatsoever in or upon any such sum, which may be paid or
made in connection with any such public or quasi-public use or purpose, and
Tenant hereby assigns to Landlord any interest it may have in or claim to all or
any part of such sums, other than any separate award which may be made with
respect to Tenant's trade fixtures and moving expenses; Tenant shall make no
claim for the value of any unexpired Term.
24. SALE BY LANDLORD. In event of a sale or conveyance by Landlord of the
Building, the same shall operate to release Landlord from any future liability
upon any of the covenants or conditions, expressed or implied, contained in this
Lease in favor of Tenant, and in such event Tenant agrees to look solely to the
responsibility of the successor in interest of Landlord in and to this Lease.
Except as set forth in this Article 24, this Lease shall not be affected by any
such sale and Tenant agrees to attorn to the purchaser or assignee. If any
security has been given by Tenant to secure the faithful performance of any of
the covenants of this Lease, Landlord may transfer or deliver said security, as
such, to Landlord's successor in interest and thereupon Landlord shall be
discharged from any further liability with regard to said security.
25. ESTOPPEL CERTIFICATES. Within ten (10) days following any written request
which Landlord may make from time to time, Tenant shall execute and deliver to
Landlord or mortgagee or prospective mortgagee a sworn statement certifying: (a)
the date of commencement of this Lease; (b) the fact that this Lease is
unmodified and in full force and effect (or, if there have been modifications to
this Lease, that this lease is in full force and effect, as modified, and
stating the date and nature of such modifications); (c) the date to which the
rent and other sums payable under this Lease have been paid; (d) the fact that
there are no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's statement; and (e) such other matters as may be
requested by Landlord. Landlord and Tenant intend that any statement delivered
pursuant to this Article 25 may be relied upon by any mortgagee, beneficiary or
purchaser, and Tenant shall be liable for all loss, cost or expense resulting
from the failure of any sale or funding of any loan caused by any material
misstatement contained in such estoppel certificate. Tenant irrevocably agrees
that if Tenant fails to execute and deliver such certificate within such ten
(10) day period Landlord or Landlord's beneficiary or agent may execute and
deliver such certificate on Tenant's behalf, and that such certificate shall be
fully binding on Tenant.
26. SURRENDER OF PREMISES.
26.1 Tenant shall arrange to meet Landlord for two (2) joint inspections
of the Premises, the first to occur at least thirty (30) days (but no more than
sixty (60) days) before the last day of the Term, and the second to occur not
later than forty-eight (48) hours after Tenant has vacated the Premises. In the
event of Tenant's failure to arrange such joint inspections and/or participate
in either such inspection, Landlord's inspection at or after Tenant's vacating
the Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
26.2 All alterations, additions, and improvements in, on, or to the
Premises made or installed by or for Tenant, including carpeting (collectively,
"Alterations"), shall be and remain the property of Tenant during the Term. Upon
the expiration or sooner termination of the Term, all Alterations shall become a
part of the realty and shall belong to Landlord without compensation, and title
shall pass to Landlord under this Lease as by a ▇▇▇▇ of sale. At the end of the
Term or any renewal of the Term or other sooner termination of this Lease,
Tenant will peaceably deliver up to Landlord possession of the Premises,
together with all Alterations by whomsoever made, in the same conditions
received or first installed, broom clean and free of all debris, excepting only
ordinary wear and tear and damage by fire or other casualty. Notwithstanding the
foregoing, if Landlord elects by notice given to Tenant at least ten (10) days
prior to expiration of the Term, Tenant shall, at Tenant's sole cost, remove any
Alterations, except for alterations previously approved or paid for by the
Landlord, including carpeting, so designated by Landlord's notice, and repair
any damage caused by such removal. Tenant must, at Tenant's sole cost, remove
upon termination of this Lease, any and all of Tenant's furniture, furnishings,
movable partitions of less than full height from floor to ceiling and other
trade fixtures and personal property (collectively, "Personalty"). Personalty
not so removed shall be deemed abandoned by the Tenant and title to the same
shall thereupon pass to Landlord under this Lease as by a ▇▇▇▇ of sale, but
Tenant shall remain responsible for the cost of removal and disposal of such
Personalty, as well as any damage caused by such removal. In lieu of requiring
Tenant to remove Alterations and Personalty and repair the Premises as
aforesaid, Landlord may, by written notice to Tenant delivered at least thirty
20
(30) days before the Termination Date, require Tenant to pay to Landlord, as
additional rent hereunder, the cost of such removal and repair in an amount
reasonably estimated by Landlord.
26.3 All obligations of Tenant under this Lease not fully performed as of
the expiration or earlier termination of the Term shall survive the expiration
or earlier termination of the Term. Upon the expiration or earlier termination
of the Term, Tenant shall pay to Landlord the amount, as estimated by Landlord,
necessary to repair and restore the Premises as provided in this Lease and/or to
discharge Tenant's obligation for unpaid amounts due or to become due to
Landlord. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant, with Tenant being liable for any additional costs
upon demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied. Any otherwise unused
Security Deposit shall be credited against the amount payable by Tenant under
this Lease.
27. NOTICES. Any notice or document required or permitted to be delivered
under this Lease shall be addressed to the intended recipient, by fully prepaid
registered or certified United States Mail return receipt requested, or by
reputable independent contract delivery service furnishing a written record of
attempted or actual delivery, and shall be deemed to be delivered when tendered
for delivery to the addressee at its address set forth on the Reference Pages,
or at such other address as it has then last specified by written notice
delivered in accordance with this Article 27, or if to Tenant at either its
aforesaid address or its last known registered office or home of a general
partner or individual owner, whether or not actually accepted or received by the
addressee. Any such notice or document may also be personally delivered if a
receipt is signed by and received from, the individual, if any, named in
Tenant's Notice Address.
28. TAXES PAYABLE BY TENANT. In addition to rent and other charges to be paid
by Tenant under this Lease, Tenant shall reimburse to Landlord, upon demand, any
and all taxes payable by Landlord (other than net income taxes) whether or not
now customary or within the contemplation of the parties to this Lease: (a)
upon, allocable to, or measured by or on the gross or net rent payable under
this Lease, including without limitation any gross income tax or excise tax
levied by the State, any political subdivision thereof, or the Federal
Government with respect to the receipt of such rent; (b) upon or with respect to
the possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy of the Premises or any portion thereof, including any sales,
use or service tax imposed as a result thereof; (c) upon or measured by the
Tenant's gross receipts or payroll or the value of Tenant's equipment,
furniture, fixtures and other personal property of Tenant or leasehold
improvements, alterations or additions located in the Premises; or (d) upon this
transaction or any document to which Tenant is a party creating or transferring
any interest of Tenant in this Lease or the Premises. In addition to the
foregoing, Tenant agrees to pay, before delinquency, any and all taxes levied or
assessed against Tenant and which become payable during the term hereof upon
Tenant's equipment, furniture, fixtures and other personal property of Tenant
located in the Premises.
29. RELOCATION OF TENANT. Landlord, at its sole expense, on at least sixty
(60) days prior written notice, may require Tenant to move from the Premises to
other space of comparable size and decor in order to permit Landlord to
consolidate the space leased to Tenant with other adjoining space leased or to
be leased to another tenant. In the event of any such relocation, Landlord will
pay all expenses of preparing and decorating the new premises so that they will
be substantially similar to the Premises from which Tenant is moving, including
printing new stationary and letterhead, and Landlord will also pay the expense
of moving Tenant's furniture and equipment to the relocated premises. In such
event this Lease and each and all of the terms and covenants and conditions
hereof shall remain in full force and effect and thereupon be deemed applicable
to such new space except that revised Reference Pages and a revised EXHIBIT A
shall become part of this Lease and shall reflect the location of the new
premises.
30. DEFINED TERMS AND HEADINGS. The Article headings shown in this Lease are
for convenience of reference and shall in no way define, increase, limit or
describe the scope or intent of any provision of this Lease. Any indemnification
or insurance of Landlord shall apply to and inure to the benefit of all the
following "Landlord Entities", being Landlord, Landlord's investment manager,
and the trustees, boards of directors, officers, general partners,
beneficiaries, stockholders, employees and agents of each of them. Any option
granted to Landlord shall also include or be exercisable by Landlord's trustee,
beneficiary, agents and employees, as the case may be. In any case where this
Lease is signed by more than one person, the obligations under this Lease shall
be joint and several. The terms "Tenant" and "Landlord" or any pronoun used in
place thereof shall indicate and include the masculine or
21
feminine, the singular or plural number, individuals, firms or corporations, and
their and each of their respective successors, executors, administrators and
permitted assigns, according to the context hereof. The term "rentable area"
shall mean the rentable area of the Premises or the Building as calculated by
the Landlord on the basis of the plans and specifications of the Building
including a proportionate share of any common areas. Tenant hereby accepts and
agrees to be bound by the figures for the rentable square footage of the
Premises and Tenant's Proportionate Share shown on the Reference Pages The term
"Building" refers to the structure in which the Premises are located and the
common areas (parking lots, sidewalks, landscaping, etc.) appurtenant thereto.
If the Building is part of a larger complex of structures, the term "Building"
may include the entire complex, where appropriate (such as shared Expenses or
Taxes) and subject to Landlord's reasonable discretion.
31. TENANT'S AUTHORITY. If Tenant signs as a corporation, partnership, trust
or other legal entity each of the persons executing this Lease on behalf of
Tenant represents and warrants that Tenant has been and is qualified to do
business in the state in which the Building is located, that the entity has full
right and authority to enter into this Lease, and that all persons signing on
behalf of the entity were authorized to do so by appropriate actions. Tenant
agrees to deliver to Landlord, simultaneously with the delivery of this Lease, a
corporate resolution, proof of due authorization by partners, opinion of counsel
or other appropriate documentation reasonably acceptable to Landlord evidencing
the due authorization of Tenant to enter into this Lease.
32. FINANCIAL STATEMENTS AND CREDIT REPORTS. At Landlord's request, Tenant
shall deliver to Landlord a copy, certified by an officer of Tenant as being a
true and correct copy, of Tenant's most recent audited financial statement, or,
if unaudited, certified by Tenant's chief financial officer as being true,
complete and correct in all material respects. Tenant hereby authorizes Landlord
to obtain one or more credit reports on Tenant at any time, and shall execute
such further authorizations as Landlord may reasonably require in order to
obtain a credit report. Landlord shall sign a non-disclosure agreement as
prepared by Tenant prior to Tenant providing financial statements to Landlord.
33. COMMISSIONS. Each of the parties represents and warrants to the other that
it has not dealt with any broker or finder in connection with this Lease, except
as described on the Reference Pages.
34. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and all of
its provisions. This Lease shall in all respects be governed by the laws of the
state in which the Building is located.
35. SUCCESSORS AND ASSIGNS. Subject to the provisions of Article 9, the terms,
covenants and conditions contained in this Lease shall be binding upon and inure
to the benefit of the heirs, successors, executors, administrators and assigns
of the parties to this Lease.
36. ENTIRE AGREEMENT. This Lease, together with its exhibits, contains all
agreements of the parties to this Lease and supersedes any previous
negotiations. There have been no representations made by the Landlord or any of
its representatives or understandings made between the parties other than those
set forth in this Lease and its exhibits. This Lease may not be modified except
by a written instrument duly executed by the parties to this Lease.
37. EXAMINATION NOT OPTION. Submission of this Lease shall not be deemed to be
a reservation of the Premises. Landlord shall not be bound by this Lease until
it has received a copy of this Lease duly executed by Tenant and has delivered
to Tenant a copy of this Lease duly executed by Landlord, and until such
delivery Landlord reserves the right to exhibit and lease the Premises to other
prospective tenants. Notwithstanding anything contained in this Lease to the
contrary, Landlord may withhold delivery of possession of the Premises from
Tenant until such time as Tenant has paid to Landlord any security deposit
required by Article 5, the first month's rent as set forth in Article 3 and any
sum owed pursuant to this Lease.
38. RECORDATION.
Tenant shall not record or register this Lease or a short form memorandum hereof
without the prior written consent of Landlord, and then shall pay all charges
and taxes incident such recording or registration.
22
39. RENEWAL OPTION. Tenant shall, provided the Lease is in full force and
effect and Tenant is not in default under any of the other terms and conditions
of the Lease at the time of notification or commencement, have one option to
renew this Lease for a term of five (5) years, for the portion of the Premises
being leased by Tenant as of the date the renewal term is to commence, on the
same terms and conditions set forth in the Lease, except as modified by the
terms, covenants and conditions as set forth below:
a. If Tenant elects to exercise said option, then Tenant shall provide
Landlord with written notice no earlier than the date which is two
hundred seventy (270) days prior to the expiration of the then
current term of the Lease but no later than the date which is one
hundred eighty (180) days prior to the expiration of the then
current term of this Lease. If Tenant fails to provide such notice,
Tenant shall have no further or additional right to extend or renew
the term of the Lease.
b. The Annual Rent and Monthly Installment in effect at the expiration
of the then current term of the Lease shall be increased to reflect
95% of the current fair market rental for comparable space in the
Building and in other similar buildings in the same rental market as
of the date the renewal term is to commence, taking into account the
specific provisions of the Lease which will remain constant.
Landlord shall advise Tenant of the new Annual Rent and Monthly
Installment for the Premises no later than thirty (30) days after
receipt of Tenant's written request therefor. Said request shall be
made no earlier than thirty (30) days prior to the first date on
which Tenant may exercise its option under this Paragraph. Said
notification of the new Annual Rent may include a provision for its
escalation to provide for a change in fair market rental between the
time of notification and the commencement of the renewal term. If
Tenant and Landlord are unable to agree on a mutually acceptable
rental rate not later than sixty (60) days prior to the expiration
of the then current term, then Landlord and Tenant shall each
appoint a qualified MAI appraiser doing business in the area, in
turn those two independent MAI appraisers shall appoint a third MAI
appraiser and the majority shall decide upon the fair market rental
for the Premises as of the expiration of the then current term.
Landlord and Tenant shall equally share in the expense of this
appraisal except that in the event the Annual Rent and Monthly
Installment is found to be within ten percent (10%) of the original
rate quoted by Landlord, then Tenant shall bear the full cost of all
the appraisal process. In no event shall the Annual Rent and Monthly
Installment for any option period be less than the Annual Rent and
Monthly Installment in the preceding period.
c. This option is not transferable; the parties hereto acknowledge and
agree that they intend that the aforesaid option to renew this Lease
shall be "personal" to Tenant as set forth above and that in no
event will any assignee or sublessee have any rights to exercise the
aforesaid option to renew.
40. EXPANSION RIGHTS. Provided Tenant is not then in default under the terms,
covenants and conditions of the Lease, Tenant shall have the right to lease the
space, which is adjacent to the Premises (the "Expansion Premises") currently
vacant or at such time as the Expansion Premises is vacated by a future tenant.
When Landlord is prepared to market such space, Landlord shall first give
written notice to Tenant of the availability of the Expansion Space and the
terms and conditions on which Landlord intends to offer it to the public and
Tenant shall have a period of ten (10) days in which to exercise Tenant's right
to lease the Expansion Premises pursuant to the terms and conditions contained
in Landlord's notice, failing which Landlord may lease the Expansion Premises to
any third party on whatever basis Landlord desires. If Tenant exercises an
expansion option hereunder, effective as of the date Landlord delivers the
Expansion Premises (the "Delivery Date"), the Expansion Premises shall
automatically be included within the Premises and subject to all the terms and
conditions of the Lease, except as set forth in Landlord's notice and as
follows:
a. Tenant's Proportionate Share shall be recalculated, using the total
square footage of the Premises, as increased by the Expansion
Premises.
b. The Expansion Premises shall be leased on an "as is" basis and
Landlord shall have no obligation to improve the Expansion Premises
or grant Tenant any improvement allowance thereon.
23
c. If requested by Landlord, Tenant shall, prior to the beginning of
the term for the Expansion Premises, execute a written memorandum
confirming the inclusion of the Expansion Premises and the Annual
Rent for the Expansion Premises.
41. TERMINATION OPTION. So long as Tenant is not in default at either the time
of exercise or at the time of termination, Tenant shall have the option to
terminate this Lease ("Termination Option"), effective as of the day preceding
the fourth (4th) anniversary of the Commencement Date (the "Early Termination
Date"). The Termination Option may be exercised only in strict compliance with
the terms of this Article. The Termination Option shall be exercised, if at all,
by delivery to Landlord of a notice of termination ("Termination Notice"). The
Termination Notice (i) must be delivered not later than six (6) months prior to
the Early Termination Date, and (ii) must be accompanied with a certified or
cashier's check in the amount of Eighty-Two Thousand Five Hundred ($82,500.00)
(the "Termination Payment"). If and only if Tenant timely and properly delivers
the Termination Notice and the Termination Payment, the Term of this Lease shall
end on the Early Termination Date, as though the Early Termination Date had been
originally fixed as the expiration date of such Term. All terms and conditions
of this Lease and Tenant's obligations hereunder, including without limitation
Tenant's obligation to pay rent, shall continue up to and including the Early
Termination Date. The Termination Payment is the sole property of Landlord upon
payment and is not refundable under any circumstances. Tenant acknowledges and
agrees that the Termination Payment is fair and reasonable compensation to
Landlord for the loss of expected rentals from Tenant over the remainder of the
scheduled term after the Early Termination Date. All obligations of Tenant under
this Lease not fully performed as of the Early Termination Date shall survive
the Early Termination Date. This option is not transferable; the parties hereto
acknowledge and agree that they intend that the aforesaid option to terminate
this Lease shall be "personal" to Tenant as set forth above and that in no event
will any assignee or sublessee have any rights to exercise the aforesaid option
to terminate.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
24
42. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claim against Landlord
under this Lease shall be limited to and enforceable only against and to the
extent of Landlord's interest in the Building. The obligations of Landlord under
this Lease are not intended to be and shall not be personally binding on, nor
shall any resort be had to the private properties of, any of its or its
investment manager's trustees, directors, officers, partners, beneficiaries,
members, stockholders, employees, or agents, and in no case shall Landlord be
liable to Tenant hereunder for any lost profits, damage to business, or any form
of special, indirect or consequential damages.
LANDLORD: TENANT:
DB QUAD PRAIRIE BUSINESS BIOTEL, INC.,
CENTER, INC., A MARYLAND CORPORATION A MINNESOTA CORPORATION
By: RREEF Management Company, a
Delaware corporation
By: \s\ ▇▇▇▇ ▇▇▇▇▇ By: \s\ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------- -----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Regional Manager Title: CEO
Dated: 1/17/06 Dated: January 10, 2006
TENANT:
BRAEMAR, INC.,
A MINNESOTA CORPORATION
By: \s\ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: CEO
Dated: January 10th, 2006
25
EXHIBIT A - FLOOR PLAN DEPICTING THE PREMISES
ATTACHED TO AND MADE A PART OF LEASE BEARING THE
LEASE REFERENCE DATE OF JANUARY 9,2006 BETWEEN
DB QUAD PRAIRIE BUSINESS CENTER, INC., AS LANDLORD AND
BRAEMAR, INC. & BIOTEL, INC., AS TENANT
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Exhibit A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Article 17 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
[GRAPHIC]
-------------
Initials
EXHIBIT A-1 - SITE PLAN
ATTACHED TO AND MADE A PART OF LEASE BEARING THE
LEASE REFERENCE DATE OF JANUARY 9, 2006 BETWEEN
DB QUAD PRAIRIE BUSINESS CENTER, INC., AS LANDLORD AND
BRAEMAR, INC. & BIOTEL, INC., AS TENANT
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Exhibit A-l is intended only to show the general layout of the Premises as of
the beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Article 17 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
[GRAPHIC]
-------------
Initials
EXHIBIT B - INITIAL ALTERATIONS
ATTACHED TO AND MADE A PART OF LEASE BEARING THE
LEASE REFERENCE DATE OF JANUARY 9, 2006 BETWEEN
DB QUAD PRAIRIE BUSINESS CENTER, INC., AS LANDLORD AND
BRAEMAR, INC. & BIOTEL, INC., AS TENANT
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
1. RESPONSIBILITY FOR THE WORK.
1.1. Except to the extent otherwise provided in Paragraphs 1.2 and 1.3,
Landlord will, at its sole cost and expense, through its architects
furnish architectural, mechanical, and electrical engineering plans
required for the completion of the work in the Premises in
accordance with the space plan shown as Exhibit A, as prepared by
Genesis Architects dated December 8, 2005, and Schedule I attached
hereto ("Landlord's Work").
1.2. Tenant may request work ("Tenant's Requested Work") not conforming
with, or in addition to, Landlord's Work at Tenant's sole cost and
expense, except as hereafter provided. If Landlord approves such
request in accordance with the Lease, any architectural, mechanical,
and electrical plans and specifications required for the Tenant's
Requested Work shall be furnished, at Tenant's sole cost and expense
(subject to Paragraph 5) to Landlord's architects and engineers.
1.3. Any interior decorating services which are not included in the
Landlord's Work or which Tenant desires to upgrade beyond the
quality level which Landlord is obligated to deliver, such as
selection of wall paint colors and/or wall coverings, fixtures,
non-building standard carpet, and any or all other decorator items
required by Tenant in the performance of said work referred to
hereinabove in Paragraphs 1.1 and 1.2 shall be at the Tenant's sole
cost and expense. Landlords allowance for carpet, paint and other
decorating items shall meet or exceed general standards for
first-class commercial buildings.
1.4. Landlord shall diligently pursue the preparation of all plans and
specifications for the improvements provided for in Paragraphs 2 and
3. All such plans shall be approved by Tenant, which approval shall
not be unreasonably withheld. Complete plans and specifications and
a cost estimate for the portion of the work covered thereby to be
borne by Tenant shall be approved by Tenant on or before JANUARY 6,
2006.
2. COMPLETION OF LANDLORD'S WORK. Landlord will, at its sole cost and
expense, furnish and install all of Landlord's Work in accordance with the
applicable provisions of the Lease.
3. COMPLETION OF TENANT'S REQUESTED WORK. Provided the plans and
specifications and cost estimate are approved by the date provided
hereinabove in Paragraph 1.4, Landlord shall cause Tenant's Requested Work
to be installed by Landlord's contractor, but at Tenant's sole cost and
expense. Prior to commencing any such work, Landlord, its contractor, or
its architects and engineers, shall submit to Tenant a written estimate of
the cost thereof. Said
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cost shall include a construction management fee payable to Landlord
equivalent to 2% of the cost of Tenant's Requested Work. If Tenant shall
fail to approve any such estimate within ten (10) days after submission
thereof, such failure shall be deemed a disapproval thereof, and
Landlord's contractor shall not proceed with such work. Tenant agrees to
pay Landlord within thirty (30) days upon being billed therefor, the cost
to Landlord of all such Tenant's Requested Work. Such bills may be
rendered during the progress of the performance of the work and the
furnishing and installation of the materials to which such bills relate.
Landlord may require Tenant to deposit the estimated cost of such work
with Landlord prior to the commencement of such work.
4. ARCHITECT'S CERTIFICATE. The certificate of Landlord's architect that the
work to be done by Landlord pursuant to Paragraphs 2 and 3 above has been
substantially completed shall be adequate evidence that the Premises have
been completed in accordance with the requirements of the Lease and that
possession thereof has been deemed delivered to Tenant, for all purposes
of the Lease, including the commencement of the payment of rent.
5. COST REIMBURSEMENT. Landlord agrees to reimburse Tenant up to $9,500.00 in
total for any or all costs associated with (i) preparation of plans and
specifications for Tenant's Requested Work, if any; (ii) the costs paid to
Landlord for the performance of Tenant's Requested Work, if any; and (iii)
expenses, directly or indirectly, relating to moving.
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A-1
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A-2
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A-3
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A-4
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SCHEDULE I
LANDLORD'S WORK
Replace roof-top HVAC units
Clean and replace windows as recommended by Jim's Glass
Install white-noise system
Install vinyl wall-covering in small conference room
Install new light tubes in ceiling lights throughout the Premises
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EXHIBIT C - COMMENCEMENT DATE MEMORANDUM
ATTACHED TO AND MADE A PART OF LEASE BEARING THE
LEASE REFERENCE DATE OF JANUARY 9, 2006 BETWEEN
DB QUAD PRAIRIE BUSINESS CENTER, INC., AS LANDLORD AND
BRAEMAR, INC. & BIOTEL, INC., AS TENANT
COMMENCEMENT DATE MEMORANDUM
THIS MEMORANDUM, made as of_____, 2006, by and between DB Quad Prairie
Business Center, Inc. ("Landlord") and Braemar, Inc. & Biotel, Inc. ("Tenant").
SAMPLE ONLY
RECITALS:
A. Landlord and Tenant are parties to that certain Lease, dated for
reference January 9, 2006 (the "Lease") for certain premises (the
"Premises") consisting of approximately 17,314 square feet at the
building commonly known as Eagandale Business Campus III.
B. Tenant is in possession of the Premises and the Term of the Lease
has commenced.
C. Landlord and Tenant desire to enter into this Memorandum confirming
the Commencement Date, the Termination Date and other matters under
the Lease.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. The actual Commencement Date is ____.
2. The actual Termination Date is ____.
3. The schedule of the Annual Rent and the Monthly Installment of Rent
set forth on the Reference Pages is deleted in its entirely, and the following
is substituted therefor:
[INSERT RENT SCHEDULE]
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4. Capitalized terms not defined herein shall have the same meaning as
set forth in the Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
LANDLORD: TENANT:
DB QUAD PRAIRIE BUSINESS BRAEMAR, INC., a Minnesota
CENTER, INC., a Maryland corporation corporation
By: RREEF Management Company, a
Delaware corporation
By: DO NOT SIGN By: DO NOT SIGN
--------------------------------- --------------------------------------
Name: Name:
------------------------------- ------------------------------------
Title: Title:
------------------------------ -----------------------------------
Dated:
------------------------------ TENANT:
BIOTEL, INC., a Minnesota corporation
By: DO NOT SIGN
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Dated:
-----------------------------------
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EXHIBIT D - RULES AND REGULATIONS
ATTACHED TO AND MADE A PART OF LEASE BEARING THE
LEASE REFERENCE DATE OF JANUARY 9, 2006 BETWEEN
DB QUAD PRAIRIE BUSINESS CENTER, INC., AS LANDLORD AND
BRAEMAR, INC. & BIOTEL, INC., AS TENANT
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
1. No sign, placard, picture, advertisement, name or notice (collectively
referred to as "Signs") shall be installed or displayed on any part of the
outside of the Building without the prior written consent of the Landlord
which consent shall be in Landlord's sole discretion. All approved Signs
shall be printed, painted, affixed or inscribed at Tenant's expense by a
person or vendor approved by Landlord and shall be removed by Tenant at
Tenant's expense upon vacating the Premises. Landlord shall have the right
to remove any Sign installed or displayed in violation of this rule at
Tenant's expense and without notice.
2. If Landlord objects in writing to any curtains, blinds, shades or screens
attached to or hung in or used in connection with any window or door of
the Premises or Building, Tenant shall immediately discontinue such use.
No awning shall be permitted on any part of the Premises. Tenant shall not
place anything or allow anything to be placed against or near any glass
partitions or doors or windows which may appear unsightly, in the opinion
of Landlord, from outside the Premises.
3. Tenant shall not alter any lock or other access device or install a new or
additional lock or access device or bolt on any door of its Premises
without the prior written consent of Landlord. Tenant, upon the
termination of its tenancy, shall deliver to Landlord the keys or other
means of access to all doors.
4. If Tenant requires telephone, data, burglar alarm or similar service, the
cost of purchasing, installing and maintaining such service shall be borne
solely by Tenant. No boring or cutting for wires will be allowed without
the prior written consent of Landlord. Landlord shall direct electricians
as to where and how telephone, data, and electrical wires are to be
introduced or installed. The location of burglar alarms, telephones, call
boxes or other office equipment affixed to the Premises shall be subject
to the prior written approval of Landlord.
5. Tenant shall not place a load upon any floor of its Premises, including
mezzanine area, if any, which exceeds the load per square foot that such
floor was designed to carry and that is allowed by law. Heavy objects
shall stand on such platforms as determined by Landlord to be necessary to
properly distribute the weight. Landlord will not be responsible for loss
of or damage to any such equipment or other property from any cause, and
all damage done to the Building by maintaining or moving such equipment or
other property shall be repaired at the expense of Tenant.
6. Tenant shall not install any radio or television antenna, satellite dish,
loudspeaker or other device on the roof or exterior walls of the Building
without Landlord's prior written consent which consent shall be in
Landlord's sole discretion.
7. Tenant shall not ▇▇▇▇, drive nails, screw or drill into the partitions,
woodwork, plaster or drywall (except for pictures and general office uses)
or in any way deface the Premises or any part thereof. Tenant shall not
affix any floor covering to the floor of the Premises or paint or seal any
floors in any manner except as approved by Landlord. Tenant shall repair
any damage resulting from noncompliance with this rule.
8. No cooking shall be done or permitted on the Premises, except that
Underwriters' Laboratory approved microwave ovens or equipment for brewing
coffee, tea, hot chocolate and similar beverages shall be permitted,
provided that such equipment and use is in accordance with all applicable
federal, state and city laws, codes, ordinances, rules and regulations.
9. Tenant shall not use any hand trucks except those equipped with the rubber
tires and side guards, and may use such other material-handling equipment
as Landlord may approve. Tenant shall not bring any other vehicles of any
kind into the Building. Forklifts which operate on asphalt areas shall
only use tires that do not damage the asphalt.
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10. Tenant shall not use the name of the Building or any photograph or other
likeness of the Building in connection with or in promoting or advertising
Tenant's business except that Tenant may include the Building name in
Tenant's address. Landlord shall have the right, exercisable without
notice and without liability to any tenant, to change the name and address
of the Building.
11. All trash and refuse shall be contained in suitable receptacles at
locations approved by Landlord. Tenant shall not place in the trash
receptacles any personal trash or material that cannot be disposed of in
the ordinary and customary manner of removing such trash without violation
of any law or ordinance governing such disposal.
12. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governing
authority.
13. Tenant assumes all responsibility for securing and protecting its Premises
and its contents including keeping doors locked and other means of entry
to the Premises closed.
14. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord without Landlord's prior written consent.
15. No person shall go on the roof without Landlord's permission.
16. Tenant shall not permit any animals, other than seeing-eye dogs, to be
brought or kept in or about the Premises or any common area of the
property.
17. Tenant shall not permit any motor vehicles to be washed or mechanical work
or maintenance of motor vehicles to be performed on any portion of the
Premises or parking lot.
18. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of any premises in the Building.
Landlord may waive any one or more of these Rules and Regulations for the
benefit of any tenant or tenants, and any such waiver by Landlord shall
not be construed as a waiver of such Rules and Regulations for any or all
tenants.
19. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order in and about the Building. Tenant agrees to
abide by all such rules and regulations herein stated and any additional
rules and regulations which are adopted. Tenant shall be responsible for
the observance of all of the foregoing rules by Tenant's employees,
agents, clients, customers, invitees and guests.
20. Any toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be
thrown into them. The expense of any breakage, stoppage or damage
resulting from the violation of this rule shall be borne by the Tenant
who, or whose employees or invitees, shall have caused it.
21. Tenant shall not permit smoking or carrying of lighted cigarettes or
cigars in areas reasonably designated by Landlord or any applicable
governmental agencies as non-smoking areas.
22. Any directory of the Building or project of which the Building is a part
("Project Area"), if provided, will be exclusively for the display of the
name and location of tenants only and Landlord reserves the right to
charge for the use thereof and to exclude any other names.
23. Canvassing, soliciting, distribution of handbills or any other written
material in the Building or Project Area is prohibited and each tenant
shall cooperate to prevent the same. No tenant shall solicit business from
other tenants or permit the sale of any goods or merchandise in the
Building or Project Area without the written consent of Landlord.
24. Any equipment belonging to Tenant which causes noise or vibration that may
be transmitted to the structure of the Building or to any space therein to
such a degree as to be objectionable to Landlord or to any tenants in the
Building shall be placed and maintained by Tenant, at Tenant's expense, on
vibration eliminators or other devices sufficient to eliminate the noise
or vibration.
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25. Driveways, sidewalks, halls, passages, exits, entrances and stairways
("Access Areas") shall not be obstructed by tenants or used by tenants for
any purpose other than for ingress to and egress from their respective
premises. Access areas are not for the use of the general public and
Landlord shall in all cases retain the right to control and prevent access
thereto by all persons whose presence, in the judgement of Landlord, shall
be prejudicial to the safety, character, reputation and interests of the
Building or its tenants.
26. Landlord reserves the right to designate the use of parking areas and
spaces. Tenant shall not park in visitor, reserved, or unauthorized
parking areas. Tenant and Tenant's guests shall park between designated
parking lines only and shall not park motor vehicles in those areas
designated by Landlord for loading and unloading. Vehicles in violation of
the above shall be subject to being towed at the vehicle owner's expense.
Vehicles parked overnight without prior written consent of the Landlord
shall be deemed abandoned and shall be subject to being towed at vehicle
owner's expense. Tenant will from time to time, upon the request of
Landlord, supply Landlord with a list of license plate numbers of vehicles
owned or operated by its employees or agents.
27. No trucks, tractors or similar vehicles can be parked anywhere other than
in Tenant's own truck dock area. Tractor-trailers which must be unhooked
or parked with dolly wheels beyond the concrete loading areas must use
steel plates or wood blocks under the dolly wheels to prevent damage to
the asphalt paving surfaces. No parking or storing of such trailers will
be permitted in the parking areas or on streets adjacent thereto.
28. During periods of loading and unloading, Tenant shall not unreasonably
interfere with traffic flow and loading and unloading areas of other
tenants. All products, materials or goods must be stored within the
Tenant's Premises and not in any exterior areas, including, but not
limited to, exterior dock platforms, against the exterior of the Building,
parking areas and driveway areas. Tenant agrees to keep the exterior of
the Premises clean and free of nails, wood, pallets, packing materials,
barrels and any other debris produced from their operation.
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