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Lease Agreement
Matria Healthcare, Inc.
TABLE OF CONTENTS
iii
1. Basic lease definitions, exhibits and additional definitions............1
1.1 BASIC LEASE DEFINITIONS............................................1
1.2 EXHIBITS...........................................................3
1.3 ADDITIONAL DEFINITIONS.............................................3
2. Grant of lease..........................................................5
2.1 DEMISE.............................................................5
2.2 QUIET ENJOYMENT....................................................5
2.3 LANDLORD AND TENANT COVENANTS......................................5
3. TERM....................................................................5
3.1 COMMENCEMENT DATE..................................................5
3.2 EARLY OCCUPANCY....................................................5
3.3 DELAYED OCCUPANCY..................................................6
3.4 SURRENDER..........................................................6
3.5 HOLDING OVER.......................................................6
4. Rent....................................................................7
4.1 RENT...............................................................7
4.2 ADDITIONAL RENT....................................................7
4.3 OTHER TAXES........................................................7
4.4 TERMS OF PAYMENT...................................................7
4.5 LATE CHARGE; INTEREST ON LATE PAYMENTS.............................7
4.6 RIGHT TO ACCEPT PAYMENTS...........................................7
4.7 EXCUSED RENT.......................................................8
5. Condition Of Premises...................................................8
6. USE AND OCCUPANCY.......................................................8
6.1 USE................................................................8
6.2 COMPLIANCE.........................................................8
6.3 OCCUPANCY..........................................................9
7. SERVICES AND UTILITIES..................................................9
8. REPAIRS.................................................................9
8.1 REPAIRS WITHIN THE PREMISES........................................9
8.2 FAILURE TO MAINTAIN PREMISES......................................10
8.3 NOTICE OF DAMAGE..................................................10
9. ALTERATIONS............................................................10
9.1 ALTERATIONS BY TENANT.............................................10
9.2 ALTERATIONS AND ENTRY BY LANDLORD.................................11
10. LIENS..................................................................11
11. INSURANCE..............................................................12
11.1 LANDLORD'S INSURANCE..............................................12
12. Damage or Destruction..................................................13
12.1 TERMINATION OPTIONS...............................................13
12.2 REPAIR OBLIGATIONS................................................13
12.3 RENT ABATEMENT....................................................13
13. Waivers and Indemnities................................................14
13.1 LANDLORD'S WAIVERS................................................14
13.2 TENANT'S WAIVERS..................................................14
13.3 LANDLORD'S INDEMNITY..............................................14
13.4 TENANT'S INDEMNITY................................................14
14. Condemnation...........................................................14
14.1 FULL TAKING.......................................................14
14.2 PARTIAL TAKING....................................................15
14.3 AWARDS............................................................15
15. Assignment and Subletting..............................................15
15.1 LIMITATION........................................................15
15.2 NOTICE OF PROPOSED TRANSFER; LANDLORD'S OPTIONS...................15
15.3 CONSENT NOT TO BE UNREASONABLY WITHHELD...........................16
15.4 FORM OF TRANSFER..................................................16
15.5 PAYMENTS TO LANDLORD..............................................16
15.6 CHANGE OF OWNERSHIP...............................................16
15.7 PERMITTED TRANSFERS...............................................17
15.8 EFFECT OF TRANSFERS...............................................17
16. Personal Property......................................................17
16.1 INSTALLATION AND REMOVAL..........................................17
16.2 RESPONSIBILITY....................................................17
16.3 LANDLORD'S LIEN...................................................17
17. Estoppel Certificates..................................................17
18. Transfer of Landlord's Interest........................................18
18.1 SALE, CONVEYANCE AND ASSIGNMENT...................................18
18.2 EFFECT OF SALE, CONVEYANCE OR ASSIGNMENT..........................18
18.3 SUBORDINATION AND NONDISTURBANCE..................................18
18.4 ATTORNMENT........................................................18
19. Rules and Regulations..................................................19
20. Tenant's Default and Landlord's Remedies...............................19
20.1 DEFAULT...........................................................19
20.2 REMEDIES..........................................................20
21. Landlord's Default and Tenant's Remedies...............................21
21.1 DEFAULT...........................................................21
21.2 REMEDIES..........................................................22
21.3 CURE BY ENCUMBRANCE HOLDER........................................22
22. Security Deposit.......................................................22
22.1 AMOUNT............................................................22
22.2 USE AND RESTORATION...............................................22
22.3 TRANSFERS.........................................................22
22.4 REFUND............................................................22
23. Brokers................................................................23
24. Limitations on Landlord's Liability....................................23
25. Notices................................................................23
26. Miscellaneous..........................................................23
26.1 BINDING EFFECT....................................................23
26.2 COMPLETE AGREEMENT; MODIFICATION..................................23
26.3 DELIVERY FOR EXAMINATION..........................................24
26.4 NO AIR RIGHTS.....................................................24
26.5 ENFORCEMENT EXPENSES..............................................24
26.6 BUILDING PLANNING.................................................24
26.7 BUILDING NAME.....................................................24
26.8 BUILDING STANDARD.................................................24
26.9 NO WAIVER.........................................................24
26.10 RECORDING; CONFIDENTIALITY.....................................24
26.11 CAPTIONS.......................................................24
26.12 INVOICES.......................................................24
26.13 SEVERABILITY...................................................25
26.14 JURY TRIAL.....................................................25
26.15 AUTHORITY TO BIND..............................................25
26.16 ONLY LANDLORD/TENANT RELATIONSHIP..............................25
26.17 COVENANTS INDEPENDENT..........................................25
26.18 GOVERNING LAW..................................................25
26.19 ENFORCEMENT OF REASONABLE CONSENT..............................25
26.20 USUFRUCT.......................................................25
26.21 PARKING........................................................25
27. SIGNAGE.............................................................26
28. OPTION TO EXTEND THE TERM...........................................26
29. EXPANSION OPTION....................................................27
30. Right of first offer................................................28
31. RIGHT OF REFUSAL...................................................29
32. EQUIPMENT...........................................................30
LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease") is entered into as of the Date, and by and
between the Landlord and Tenant, identified in Section 1.1 below.
1. Basic lease definitions, exhibits and additional definitions.
1.1 Basic Lease Definitions.
In this Lease, the following defined terms have the meanings indicated.
(a) "Date" means the date of full execution of this Lease, which is
____________________________.
(b) "Landlord" means TRIZEC REALTY, INC., a California corporation.
(c) "Tenant" means MATRIA HEALTHCARE, INC., a Delaware corporation.
(d) "Building" means the building in which the Premises are
located, which Building constitutes a part of the complex known as
Newmarket Business Park ("Complex"), and is located on the Land at the
address identified below:
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(e) "Premises" means those premises known as Suite 233 located on
the second floor of the Building and identified on Exhibit A which is
hereby deemed to be 46,611 rentable square feet.
(f) "Use" means general office and call center and no other use.
(g) "Term" means the duration of this Lease, which will be
approximately sixty five (65) months, beginning on the "Commencement
Date" (as defined in Section 3.1 below) and ending on the "Expiration
Date" (as defined below), unless terminated earlier or extended further
as provided in this Lease. The "Expiration Date" means (i) if the
Commencement Date is the first day of a month, the sixty five (65)
month anniversary of the day immediately preceding the Commencement
Date; or (ii) if the Commencement Date is not the first day of a month,
the sixty five (65) month anniversary of the last day of the month in
which the Commencement Date occurs.
(h) "Scheduled Commencement Date" means December 1, 2002.
(i) "Rent" means the Rent payable according to Section 4.1, which,
subject to Section 4.7, will be in an amount per month applicable
during each Lease Year as follows:
Annual Rent Per Rentable
Lease Period Square Foot Monthly Rent Annual Rent
------------ ----------- ------------ -----------
12/01/02 - 04/30/04 $10.00 $38,842.50 $466,110.00
05/01/04 - 04/30/05 $10.30 $40,007.78 $480,093.30
05/01/05 - 04/30/06 $10.61 $41,211.89 $494,542.71
05/01/06 - 04/30/07 $10.93 $42,454.85 $509,458.23
05/01/07 - 04/30/08 $11.26 $43,736.66 $524,839.86
(j) "Security Deposit" means $38,842.50.
(k) "Landlord's General Address" means:
Trizec Realty, Inc.
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
with copies of all notices to:
Trizec Realty, Inc.
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Attention: Lease Administrator
and if notice of default, a copy to:
Trizec Realty, Inc.
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Attention: Regional Counsel
(l) Landlord's Billing Address" means:
Trizec Realty, Inc.
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(m) "Tenant's Notice Address" means,
Matria Healthcare, Inc.
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Attention: General Counsel
(n) "Tenant's Invoice Address" means:
Matria Healthcare, Inc.
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Attention: Accounts Payable
(o) "Brokers" means the following brokers who will be paid by
Landlord in accordance with a separate agreement:
TrizecHahn Colony Square GP LLC and The ▇▇▇▇▇▇ Group and the
following brokers who will be paid by Tenant: NONE.
(p) "Liability Insurance Amount" means $5,000,000.00.
(q) "Tenant's Share", with respect to the calculation of
Additional Rent according to Section 4.2, 42.160% (.42160).
1.2 Exhibits.
The Exhibits listed below are attached to and incorporated in this
Lease. In the event of any inconsistency between such Exhibits and the
terms and provisions of this Lease, the terms and provisions of the
Exhibits will control. The Exhibits to this Lease are:
Exhibit A - Plan Delineating the Premises
Exhibit A-1 - Expansion Area #1
Exhibit A-2 - Expansion Area #2
Exhibit B - Possession and Leasehold Improvements Agreement
Exhibit C - Occupancy Estoppel Certificate
Exhibit D - Rules and Regulations
1.3 Additional Definitions.
In addition to those terms defined in Section 1.1 and other sections of
this Lease, the following defined terms when used in this Lease have
the meanings indicated:
(a) "Additional Rent" means the Common Area Maintenance Expense and Tax and
Insurance Escalations payable according to Section 4.2.
(b) "Building Business Hours" means the hours from 8:00 a.m. to 6:00 p.m.
on Monday through Friday and from 8:00 a.m. to 1:00 p.m. on Saturday, excluding
statutory or legal holidays. Notwithstanding the foregoing, access to the
Premises shall be afforded to Tenant and its agents, contractors and employees
on a twenty four (24) hour, seven (7) days per week, fifty two (52) weeks per
year basis.
(c) "Common Areas" means certain interior and exterior common and public
areas located on the Land and in the Building as may be designated by Landlord
for the non-exclusive use in common by Tenant, Landlord and other tenants, and
their employees, guests, customers, agents and invitees. If the Building is
connected to other buildings by underground tunnels or elevated bridges over
public streets, Common Areas will include such bridges and tunnels; provided,
however, that Landlord and owners of such other buildings will have the right in
their sole discretion to adopt rules and regulations relating to bridge and
tunnel use.
(d) "Construction Administration Fee" means for all work performed in the
Premises, whether performed by Landlord or Tenant, Tenant shall pay to Landlord
the following fee: 1
General Contractor - If Landlord is the general contractor for the
project and is performing the work and/or contracting with the subtrades on
Tenant's behalf:
Contract Value Fee
$0 - $49,999 15%
$50,000 - $99,999 12%
$100,000 - $249,999 10%
$250,000 - $999,999 9%
$1,000,000 - $1,999,999 8%
$2,000,000 and over 6.5%
____________________
1 Notwithstanding the foregoing, with respect to the
initial leasehold improvements to be installed by Landlord in accordance
with the terms and conditions of the Possession and Leasehold Improvements
Agreement attached hereto as Exhibit B, the Construction Administration Fee
shall be five percent (5%) of the total cost of the Leasehold Improvements.
Project Administration - For all projects where Landlord is not the General
Contractor, a project administration fee will be charged to cover Landlord's
service of plan review and design and construction coordination:
Contract Value Fee
$0 - $49,999 7%
$50,000 - $99,999 6%
$100,000 - $249,999 5%
$250,000 - $999,999 4%
$1,000,000 - $1,999,999 3%
$2,000,000 and over 2%
(e) "Common Area Maintenance Expenses" means Landlord's cost of maintaining
and keeping clean all Common Areas which is currently $0.83 per rentable square
foot of Premises ("CAM").
(f) "Fiscal Year" means Landlord's fiscal year, which ends on
December 31st of each calendar year and may be changed at Landlord's
discretion.
(g) "Force Majeure" means any acts of God, governmental restriction,
strikes, labor disturbances, shortages of materials or supplies, or any other
cause or event beyond the parties' reasonable control (but not because of
insolvency, lack of funds or other financial cause), by which either party is
hindered or prevented from performance of any act under this Lease, then
performance of such act shall be excused for the period during which such
performance is rendered impossible; and time for performance shall be extended
accordingly. However, Force Majeure shall not relieve either party from any
obligation under this Lease. No such delay shall constitute an actual or
constructive eviction in whole or in part, or entitle Tenant to any abatement or
diminution of rents or other charges due, or impose any liability upon Landlord
or its agents because of inconvenience to Tenant or injury to or interruption of
Tenant's business.
(h) "Land" means that portion of the real property described in Schedule 1
attached hereto that is reasonably and equitably allocated to the Building, less
any portions that may be conveyed separately from the Building by Landlord from
time to time, plus any additional real property located proximate to the Land
that may be operated by Landlord from time to time in conjunction with the Land.
(i) "Laws" means any and all present or future federal, state or local
laws, statutes, ordinances, rules, regulations or orders of any and all
governmental or quasi-governmental authorities having jurisdiction.
(j) "Lease Year" means each successive period of 12 calendar months during
the Term, ending on the same day and month (but not year, except in the case of
the last Lease Year) as the day and month on which the Expiration Date will
occur. If the Commencement Date is not the first day of a month, the first Lease
Year will be greater than 12 months by the number of days from the Commencement
Date to the last day of the month in which the Commencement Date occurs.
(k) "Prime Rate" means the rate of interest announced from time to time by
Citibank, N.A., or any successor to it, as its prime rate. If Citibank, N.A. or
any successor to it ceases to announce a prime rate, Landlord will designate a
reasonably comparable financial institution for purposes of determining the
Prime Rate. If more than one Prime Rate is announced by Citibank, N.A. or its
successor, then Landlord shall designate the applicable Prime Rate.
(l) "Rent" means the Rent, Additional Rent and all other amounts required
to be paid by Tenant under this Lease.
(m) "Taxes" means the amount incurred or accrued during each Fiscal Year
according to generally accepted accounting principles for that portion of the
following items that is allocable to the Land and Building: all ad valorem real
and personal property taxes and assessments, special or otherwise, levied upon
or with respect to the Land or Building, the personal property used in operating
the Building, and the rents and additional charges payable by tenants of the
Building, and imposed by any taxing authority having jurisdiction; all taxes,
levies and charges which may be assessed, levied or imposed in replacement of,
or in addition to, all or any part of ad valorem real or personal property taxes
or assessments as revenue sources, and which in whole or in part are measured or
calculated by or based upon the Land or Building, the leasehold estate of
Landlord or the tenants of the Building, or the rents and other charges payable
by such tenants; capital and place-of-business taxes, and other similar taxes
assessed relating to the Building; and any reasonable expenses incurred by
Landlord in attempting to reduce or avoid an increase in Taxes, including,
without limitation, reasonable legal fees and costs. Taxes will not include any
net income taxes of Landlord. Tenant acknowledges that Taxes may increase during
the Term and that if the Building or Land, or both, are currently subject to a
Taxes abatement program and such program ceases to benefit the Building or Land,
or both, during the Term, Taxes will increase.
2. Grant of Lease.
2.1 Demise.
Subject to the terms, covenants, conditions and provisions of this
Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises, together with the non-exclusive right to use the Common
Areas, for the Term.
2.2 Quiet Enjoyment.
Landlord covenants that during the Term Tenant will have quiet and
peaceable possession of the Premises, subject to the terms, covenants,
conditions and provisions of this Lease, and Landlord will not disturb
such possession except as expressly provided in this Lease.
2.3 Landlord And Tenant Covenants.
Landlord covenants to observe and perform all of the terms, covenants
and conditions applicable to Landlord in this Lease. Tenant covenants
to pay the Rent when due, and to observe and perform all of the terms,
covenants and conditions applicable to Tenant in this Lease.
3. TERM.
3.1 Commencement Date.
"Commencement Date" means the first day of the Term, which will be the
earlier of (i) the first day on which Tenant occupies the Premises for
the regular conduct of its business; or (ii) the Scheduled Commencement
Date (as the same may be extended according to Section 3.3 below).
3.2 Early Occupancy.
Tenant has no right to enter the Premises until Landlord tenders
possession; however, Landlord hereby gives permission for Tenant to
enter the Premises prior to the Scheduled Commencement Date so that
Tenant may do such work as may be required to prepare the Premises for
Tenant's occupancy, including the installation of cabling, telephone
equipment, furniture, computer and other office systems. If Tenant so
enters the Premises prior to the Scheduled Commencement Date, Tenant
shall adopt a construction schedule consistent with the Landlord's
construction schedule and will work in harmony with Landlord and will
not interfere with or delay the performance of Landlord's Work, or with
the work of any other tenant or occupant of the Building. All acts of
any of Tenant's contractors, subcontractors or laborers are the
responsibility of Tenants, and Tenant shall indemnify and hold Landlord
harmless from and against any and all loss, cost, damage or expense of
any nature caused by such personnel. In addition, any such access shall
be consistent with generally accepted construction practices and in
accordance with any and all applicable regulatory requirements. If at
any time such access causes or threatens to cause disharmony or
interference, including labor disharmony, Landlord will have the right
to immediately withdraw such permission. At all times while Tenant is
in occupation of the Premises prior to the Scheduled Commencement Date
for the above stated purposes, Tenant will be subject to and will
comply with all of the terms and provisions of the Lease, except that
no Base Rent or Additional Rent will be payable by Tenant prior to the
Scheduled Commencement Date. With Landlord's express written consent,
Tenant may occupy the Premises for regular conduct of Tenant's business
prior to the Scheduled Commencement Date. If Tenant takes possession of
any part of the Premises for business purposes prior to the Scheduled
Commencement Date with Landlord's prior written consent, all of the
covenants and conditions of the Lease will bind both parties with
respect to such portion of the Premises, and Tenant will pay Landlord
Rent for the period of such occupancy according to Section 4 of the
Lease at the rates applicable to the first Lease Year (excluding any
periods of excused or free rent, if any), prorated for the time and
portion of the Premises so occupied. No early occupancy under this
Section 3.2 will change the Commencement Date or the Expiration Date.
3.3 Delayed Occupancy.
If, due to the holdover of a prior occupant or other reason beyond
Landlord's control, Landlord fails to tender possession of the Premises
to Tenant on or before the Scheduled Commencement Date, Landlord will
not be in default or liable in damages to Tenant, nor will the
obligations of Tenant be affected, provided, however, that:
(a) the Commencement Date will be extended automatically by one
day for each day of the period after the Scheduled Commencement
Date to the day on which Landlord tenders possession of the
Premises to Tenant less any portion of that period attributable to
Tenant's Delays as more particularly described in exhibit B; and
(b) if Landlord does not tender possession of the full Premises to
Tenant on or before the date 6 months after the Scheduled
Commencement Date (plus any period of delay caused by Force
Majeure and/or Tenant's Delays as described in Exhibit B), Tenant
will have the right to terminate the Lease by delivering written
notice of the termination to Landlord not more than 30 days after
such tender deadline date.
Upon a termination under Section 3.3 (b) above, each party will, upon
the other's request, execute and deliver an agreement in recordable
form containing a release and surrender of all right, title and
interest in and to the Lease; neither Landlord nor Tenant will have any
further obligations to each other; and Landlord will refund to Tenant
any sums paid to Landlord by Tenant in connection with the Lease. Such
postponement of the commencement of the Term and such termination and
refund right will be in full settlement of all claims that Tenant might
otherwise have against Landlord by reason of Landlord's failure to
tender the Premises by the Scheduled Commencement Date.
3.4 Surrender.
Upon the expiration or other termination of the Term, Tenant will
immediately vacate and surrender possession of the Premises in good
order, repair and conditions, except for ordinary wear and tear. Upon
the expiration or other termination of the Term, Tenant agrees to
remove (a) all changes, additions and improvements to the Premises the
removal of which Landlord requested or approved according to Section
9.1 at the time Landlord consented to their installation, and (b) all
of Tenant's trade fixtures, office furniture, office equipment and
other personal property. Tenant will pay Landlord on demand the cost of
repairing any damage to the Premises or Building caused by the
installation or removal of any such items. Any of Tenant's property
remaining in the Premises will be conclusively deemed to have been
abandoned by Tenant and may be appropriated, stored, sold, destroyed or
otherwise disposed of by Landlord without notice or obligation to
account to or compensate Tenant, and Tenant will pay Landlord on demand
all costs incurred by Landlord relating to such abandoned property.
Notwithstanding anything to the contrary contained in this Lease,
Tenant shall have no obligation to remove or pay for the removal of
initial Leasehold Improvements installed in accordance with Exhibit B
attached hereto.
3.5 Holding Over.
Tenant understands that it does not have the right to hold over at any
time and Landlord may exercise any and all remedies at law or in equity
to recover possession of the Premises, as well as any damages incurred
by Landlord, due to Tenant's failure to vacate the Premises and deliver
possession to Landlord as required by this Lease. If Tenant holds over
after the Expiration Date with Landlord's prior written consent, Tenant
will be deemed to be a tenant from month to month, at a monthly Rent,
payable in advance, equal to 150% of monthly Rent payable during the
last year of the Term, and Tenant will be bound by all of the other
terms, covenants and agreements of this Lease as the same may apply to
a month-to-month tenancy. If Tenant holds over after the Expiration
Date without Landlord's prior written consent, Tenant will be deemed a
tenant at sufferance, at a daily Rent, payable in advance, equal to
150% of the Rent per day payable during the last year of the Term, and
Tenant will be bound by all of the other terms, covenants and
agreements of this Lease as the same may apply to a tenancy at
sufferance.
4. Rent.
4.1 Rent.
Commencing on the Commencement Date and then throughout the Term,
Tenant agrees to pay Landlord Rent according to the following
provisions. Rent during each Lease Year (or portion of a Lease Year)
described in Section 1.3(j) will be payable in monthly installments in
the amount specified for such Lease Year (or portion) in Section
1.1(i), in advance, on or before the first day of each and every month
during the Term. However, if the Term commences on other than the first
day of a month or ends on other than the last day of a month, Rent for
such month will be appropriately prorated.
4.2 Additional Rent.
Tenant agrees to pay Landlord, as Additional Rent, the Common Area
Maintenance Expenses and Tax and Insurance Escalation Expenses as
follows:
(a) Common Area Maintenance Expense: Effective as of the
Commencement Date, Tenant shall pay Landlord, as Additional Rent, the
CAM amount specified in Section 1.3(e) of the Additional Definitions
per month along with the monthly Rent during the Term of this Lease or
any extension or renewal thereof. The CAM amount shall increased by 3%
on a compounded basis annually.
(b) Tax and Insurance Escalation Expenses: Tenant shall pay
Landlord upon demand, as Additional Rent, during the Term of this Lease
and any extension or renewal thereof, the Tenant's share of the amount
by which all Taxes and Landlord's Insurance (as described in Section
11.1 hereto) exceed all Taxes and Landlord's Insurance over the
calendar year ending December 31, 2002.
4.3 Other Taxes.
Tenant will reimburse Landlord upon demand for any and all taxes
payable by Landlord (other than net income taxes and taxes included in
Taxes) whether or not now customary or within the contemplation of
Landlord and Tenant: (a) upon, measured by or reasonably attributable
to the cost or value of Tenant's equipment, furniture, fixtures and
other personal property located in the Premises; (b) upon or measured
by Rent; (c) upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion of the Premises; and
(d) upon this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises.
4.4 Terms of Payment.
All Rent, and Additional Rent will be paid to Landlord in lawful money
of the United States of America, at Landlord's Billing Address or to
such other person or at such other place as Landlord may from time to
time designate in writing, without notice or demand and without right
of deduction, abatement or setoff, except as otherwise expressly
provided in this Lease.
4.5 Late Charge; Interest on Late Payments.
All amounts payable under this Lease by Tenant to Landlord, if not paid
when due, will bear interest from the due date until paid at the lesser
of the highest interest rate permitted by law or 5% in excess of the
then-current Prime Rate.
4.6 Right to Accept Payments.
No receipt by Landlord of an amount less than Tenant's full amount due
will be deemed to be other than payment "on account", nor will any
endorsement or statement on any check or any accompanying letter effect
or evidence an accord and satisfaction. Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance
or pursue any right of Landlord. No payments by Tenant to Landlord
after the expiration or other termination of the Term, or after the
giving of any notice (other than a demand for payment of money) by
Landlord to Tenant, will reinstate, continue or extend the Term or make
ineffective any notice given to Tenant prior to such payment. After
notice or commencement of a suit, or after final judgment granting
Landlord possession of the Premises, Landlord may receive and collect
any sums of Rent due under this Lease, and such receipt will not void
any notice or in any manner affect any pending suit or any judgment
obtained.
4.7 Excused Rent.
Landlord shall conditionally excuse Base Rent for the first five (5)
months of the Lease Term ("Excused Rent"), provided, however, that
Excused Rent shall immediately become due and payable to Landlord in
the event of any monetary or other Tenant Default (as defined in
Section 20.1) under this Lease beyond any applicable notice and cure
period. This Section 4.7 shall not be deemed to excuse payment of any
rents or charges due other than Base Rent.
5. Condition Of Premises.
Subject to any provision of this Lease concerning the making of
Leasehold Improvements by Landlord in the Premises (if any), by taking
possession of the Premises hereunder, Tenant accepts the Premises as
being in good order, condition and repair, and otherwise as is, where
is and with all faults. Except as may be expressly set forth in this
Lease, including Exhibit B, Tenant acknowledges that neither Landlord,
nor any employee, agent or contractor of Landlord has made any
representation or warranty concerning the Land, Building, Common Areas
or Premises, or the suitability of either for the conduct of Tenant's
business. The Premises do not include any areas above the finished
ceiling or below the finished floor covering installed in the Premises
or any other areas not shown on Exhibit A as being part of the
Premises. Landlord reserves, for Landlord's exclusive use, any of the
following (other than those installed for Tenant's exclusive use) that
may be located in the Premises: janitor closets, stairways and
stairwells; fan, mechanical, electrical, telephone and similar rooms;
and elevator, pipe and other vertical shafts, flues and ducts.
6. USE AND OCCUPANCY.
6.1 Use.
(a) Tenant agrees to use and occupy the Premises only for the Use
described in Section 1.1(f), or for such other purpose as Landlord
expressly authorizes in writing.
(b) The use of the Premises permitted under Section 6.1(a) shall
not include, and Tenant shall not use, or permit the use of, the
Premises or any part thereof for: (i) the offices or business of a
governmental or quasi-governmental bureau, department or agency,
foreign or domestic, including an autonomous governmental corporation
or diplomatic or trade mission; or (ii) conduct or maintenance of any
gambling or gaming activities or any political activities or any club
activities, or a school or employment or placement agency.
6.2 Compliance.
(a) Tenant agrees to use the Premises in a safe, careful and
proper manner, and to comply with all Laws applicable to Tenant's use
and occupancy of the Premises. If, (i) due to the nature or manner of
any use or occupancy of the Premises by Tenant, or (ii) to a condition
created by Tenant, or a breach of Tenant's obligations hereunder or the
negligence of Tenant or its invitees, or (iii) the requirement of
installation or modification of any gas, smoke or fire detector or
alarm or any sprinkler or other system to prevent or extinguish fire or
combustion or to promote fire safety, any improvements or alterations
to the Premises or Building or changes in the services provided by
Landlord according to Section 7 are required to comply with any Laws,
or with requirements of Landlord's insurers, then Tenant will pay all
costs of the required improvements, alterations or changes in services.
(b) Landlord and Tenant agree that, during the Term, each will
comply with all Laws governing, and all procedures established by
Landlord for, the use, abatement, removal, storage, disposal or
transport of any substances, chemicals or materials declared to be, or
regulated as, hazardous or toxic under any applicable Laws ("Hazardous
Substances") and any required or permitted alteration, repair,
maintenance, restoration, removal or other work in or about the
Premises, Building or Land that involves or affects any Hazardous
Substances. Each party will indemnify and hold the other and the
other's "Affiliates" (as defined in Section 13.1) harmless from and
against any and all claims, costs and liabilities (including reasonable
attorneys' fees) arising out of or in connection with any breach by
such party of its covenants under this Section 6.2(b). The parties'
obligations under this Section 6.2(b) will survive the expiration or
early termination of the Term.
(c) The parties hereby agree that throughout the Term of this
Lease, the Landlord shall be responsible for compliance with the
Americans With Disabilities Act of 1990 and all regulations issued by
the U.S. Attorney General or other authorized agencies under the
authority of such Act ("ADA") in the Common Areas of the Building
(including but not limited to elevators) and that Tenant shall be
responsible for compliance with the ADA in the Premises. Tenant agrees
that in the event it provides any plans or specifications for
improvements, alterations or additions to the Premises pursuant to the
terms and conditions of this Lease, Tenant shall be obligated to cause
such plans to conform to all then applicable requirements of the ADA
and shall otherwise cause them to be in accordance with the agreements
contained in this Section 6.2(c) and Tenant shall notify Landlord of
any particular requirements that Tenant may have to enable Landlord to
meet its obligations under this Section 6.2(c). Landlord and Tenant
covenant and agree to reimburse and indemnify each other for any
expenses incurred by the indemnified party due to the indemnified
party's failure to conform to the requirements of the ADA as agreed to
in this Section 6.2(c), including, but not limited to, the cost of
making any alterations, renovations or accommodations required by the
ADA, or any governmental enforcement agency, or any court, any and all
fines, civil penalties and damages awarded resulting from a violation
of the ADA and all reasonable legal expenses incurred in defending such
claims made under the ADA or in enforcing this indemnification,
including, but not limited to, reasonable attorney's fees. Such
indemnification shall survive the expiration or termination of this
Lease.
6.3 Occupancy.
Tenant will not do or permit anything which obstructs or interferes
with other tenants' rights or with Landlord's providing Building
services, or which injures or annoys other tenants. Tenant will not
cause, maintain or permit any nuisance in or about the Premises and
will keep the Premises free of debris, and anything of a dangerous,
noxious, toxic or offensive nature or which could create a fire hazard
or undue vibration, heat or noise. If any item of equipment, building
material or other property brought into the Building by Tenant or on
Tenant's request causes a dangerous, noxious, toxic or offensive effect
including an environmental effect) and in Landlord's reasonable opinion
such effect will not be permanent but will only be temporary and is
able to be eliminated, then Tenant will not be required to remove such
item, provided that Tenant promptly and diligently causes such effect
to be eliminated, pays for all costs of elimination and indemnifies
Landlord against all liabilities arising from such effect. Tenant will
not make or permit any use of the Premises which may jeopardize any
insurance coverage, increase the cost of insurance or require
additional insurance coverage. If by reason of Tenant's failure to
comply with the provisions of this Section 6.3, (a) any insurance
coverage is jeopardized, then Landlord will have the option to
terminate this Lease or (b) insurance premiums are increased, then
Landlord may require Tenant to immediately pay Landlord as Rent the
amount of the increase in insurance premiums.
7. SERVICES AND UTILITIES.
Tenant shall pay water, sewer, gas, electricity, fuel, light, heat,
power bills, garbage pickup, janitorial services and sprinkler system
service charges (if any) for the Premises, or used by Tenant in
connection therewith. If Landlord elects to provide any of the above
services and Tenant approves, Tenant shall promptly reimburse Landlord
for Tenant's actual or pro-rata cost of the services provided.
8. REPAIRS.
8.1 Repairs Within the Premises.
Subject to the terms of Sections 6, 12 and 14, and except to the extent
Landlord is required to perform or pay for certain maintenance or
repairs according to those sections, Tenant will, at Tenant's own
expense: (a) at all times during the Term, maintain the Premises
subject to normal wear and tear (including, without limitation, all
exterior glass, mullions and doors), all fixtures and equipment in the
Premises and those portions of any plumbing or electrical systems,
heating and air conditioning equipment (including but not limited to
replacement of parts, compressors, handling units and heating units),
that exclusively serve the Premises in good order and repair and in a
condition that complies with all applicable Laws; and (b) promptly and
adequately repair all damage to the Premises and replace or repair all
of such fixtures, equipment and portions of the plumbing or electrical
systems that are damaged or broken, all under the supervision and
subject to the prior reasonable approval of Landlord (other than with
respect to repair necessitated by the gross negligence or intentional
misconduct of Landlord or Landlord's Affiliates (as defined in Section
13.1). All work done by Tenant or its contractors (which contractors
will be subject to Landlord's reasonable approval) will be done in a
first-class workmanlike manner using only grades of materials at least
equal in quality to Building standard materials and will comply with
all insurance requirements and all applicable Laws. In addition to the
foregoing, Tenant shall maintain in force at all times during the Term
a maintenance contract, in a form acceptable to Landlord, for the
heating, ventilation and air conditioning equipment ("HVAC") serving
the Premises with a reputable contractor licensed in the state where
the Premises are located, a copy of which shall be submitted to
Landlord on or before the Commencement Date. Tenant's HVAC maintenance
contract shall specifically include regular maintenance and reporting
(a copy of which shall be provided to Landlord) at lease twice per
year. Notwithstanding anything to the contrary provided for herein,
Landlord and Tenant agree that, in addition to Tenant's obligation to
maintain the HVAC maintenance contract described herein, Tenant shall
be responsible for the cost of repairing the HVAC equipment serving the
Premises during the Term to the extent such repair costs do not exceed
a total $1,000.00 per unit during the Term. Any repairs required of the
HVAC equipment in excess of $1,000 during the Term shall be Landlord's
responsibility (unless such repairs are attributable to Tenant's
negligence, intentional misconduct or failure to maintain the HVAC
maintenance contract described herein).
8.2 Failure to Maintain Premises.
If, after any applicable notice and cure period, Tenant fails to
perform any of its obligations under Section 8.1, or such repairs
affect any structural portion of the Building, including without
limitation, the foundation, floor/ceiling slabs, roof, curtain wall,
columns, beams, shafts (including elevator shafts), stairs, stairwells,
escalators, elevator cabs, mechanical, electrical and telephone
closets, and the mechanical, electrical, life safety, plumbing,
sprinkler systems (connected to the core) and HVAC systems (including
primary and secondary loops connected to the core), then Landlord may
perform such obligations and Tenant will pay as Rent to Landlord the
cost of such performance, including an amount sufficient to reimburse
Landlord for overhead and supervision, within 10 days after the date of
Landlord's invoice. For purpose of performing such obligations, or to
inspect the Premises, Landlord may enter the Premises upon not less
than one (1) day's prior notice to Tenant (except in cases of actual or
suspected emergency, in which case no prior notice will be required)
without liability to Tenant for any loss or damage incurred as a result
of such entry, provided that Landlord will take reasonable steps in
connection with such entry to minimize any disruption to Tenant's
business or its use of the Premises.
8.3 Notice of Damage.
Tenant will notify Landlord promptly after Tenant learns of (a) any
fire or other casualty in the Premises; (b) any damage to or defect in
the Premises, including the fixtures and equipment in the Premises, for
the repair of which Landlord might be responsible; and (c) any damage
to or defect in any parts of appurtenances of the Building's sanitary,
electrical heating, air conditioning, elevator or other systems located
in or passing through the Premises.
9. ALTERATIONS.
9.1 Alterations by Tenant.
Tenant may from time to time at its own expense make changes, additions
and improvements to the Premises (individually or collectively referred
to as "Alterations") to better adapt the same to its business, provided
that any such Alterations (a) will comply with all applicable Laws; (b)
will be made only with the prior written consent of Landlord, which
consent will not be unreasonably withheld or delayed; (c) will equal or
exceed Building standard; (d) will be carried out only by persons
selected by Tenant and approved in writing by Landlord (such approval
not to be unreasonably withheld or delayed), who will if required by
Landlord deliver to Landlord before commencement of the work
performance and payment bonds; (e) do not exceed or adversely affect
the capacity, maintenance, operating cost or integrity of the
Building's structure or any of its heating, ventilating, air
conditioning, plumbing, mechanical, electrical, communications or other
systems; (f) is approved by the holder of any Encumbrance; (g) does not
violate any agreement which affects the Building or binds Landlord; and
(h) does not alter the exterior of the Building in any way. Tenant will
maintain, or will cause the persons performing any such work to
maintain, worker's compensation insurance and public liability and
property damage insurance (with Landlord named as an additional
insured), in amounts, with companies and in a form reasonably
satisfactory to Landlord, which insurance will remain in effect during
the entire period in which the work will be carried out. If requested
by Landlord, Tenant will deliver to Landlord proof of all such
insurance. Tenant will promptly pay, when due, the cost of all such
work and, upon completion, Tenant will deliver to Landlord, to the
extent not previously received by Landlord, evidence of payment,
contractors' affidavits and full and final waivers of all liens for
labor, services or materials. Tenant shall pay the Construction
Administration Fee on all Alterations. Tenant will also pay any
increase in property taxes on, or fire or casualty insurance premiums
for, the Building attributable to such Alterations and the cost of any
modifications to the Building outside the Premises that are required to
be made in order to make the Alterations to the Premises. Tenant, at
its expense, will have promptly prepared and submitted to Landlord
reproducible as-built CAD plans of any such change, addition or
improvement upon its completion. All changes, additions and
improvements to the Premises, whether temporary or permanent in
character, made or paid for by Landlord or Tenant will, without
compensation to Tenant, become Landlord's property upon installation.
If at the time Landlord consents to their installation, Landlord
requests or approves the removal by Tenant of any such Alterations upon
termination of this Lease, Tenant will remove the same upon termination
of this Lease as provided in Section 3.4. All other Alterations will
remain Landlord's property upon termination of this Lease and will be
relinquished to Landlord in good condition, ordinary wear and tear
excepted.
9.2 Alterations and Entry by Landlord.
Landlord may from time to time make repairs, changes, additions and
improvements to the Building, Common Areas and those Building systems
necessary to provide the services described in Section 7, and for such
purposes Landlord may enter the Premises upon not less than 10 days'
prior notice to Tenant (except in cases of actual or suspected
emergency, in which case no prior notice will be required) without
liability to Tenant for any loss or damage incurred as a result of such
entry, provided that in doing so Landlord will not disturb or interfere
with Tenant's use of the Premises and operation of its business any
more than is reasonably necessary in the circumstances and will repair
any damage to the Premises caused by such entry. No permanent change,
addition or improvement made by Landlord will materially impair access
to the Premises. In addition, Landlord and its agents, employees and
contractors shall have the right to enter the Premises during Tenant's
normal business hours, without undue interference with the conduct of
Tenant's business therein, to inspect and examine the Premises and to
exhibit the Premises to prospective purchasers or tenants (but as to
prospective tenants only during the last twelve months of the Term).
10. LIENS.
Tenant agrees to pay before delinquency all costs for work, services or
materials furnished to Tenant for the Premises, the nonpayment of which
could result in any lien against the Land or Building. Tenant will keep
title to the Land and Building free and clear of any such lien. Tenant
will immediately notify Landlord of the filing of any such lien or any
pending claims or proceedings relating to any such lien and will
indemnify and hold Landlord harmless from and against all loss, damages
and expenses (including reasonable attorneys' fees) suffered or
incurred by Landlord as a result of such lien, claims and proceedings.
In case any such lien attaches, Tenant agrees to cause it to be
immediately released and removed of record (failing which Landlord may
do so at Tenant's sole expense), unless Tenant has a good faith dispute
as to such lien in which case Tenant may contest such lien by
appropriate proceedings so long as Tenant deposits a lien transfer bond
(if applicable) drawn on a bondsman acceptable to Landlord or deposits
with Landlord a bond or other security in an amount reasonably
acceptable to Landlord which may be used by Landlord to release such
lien. Upon final determination of any permitted contest, Tenant will
immediately pay any judgment rendered and cause the lien to be
released.
11. INSURANCE.
11.1 Landlord's Insurance.
During the Term, Landlord will provide and keep in force the following
insurance:
(a) commercial general liability insurance relating to Landlord's
operation of the Building, for personal and bodily injury and death,
and damage to others' property; and
(b) all risk or fire insurance (including standard extended
coverage endorsement perils, leakage from fire protective devices and
other water damage) relating to the Land and Building (but excluding
Tenant's fixtures, furnishings, equipment, personal property,
documents, files, inventory, stock-in-trade and work products and all
leasehold improvements in the Premises); and
(c) loss of rental income insurance or loss of insurable gross
profits commonly insured against by prudent landlords; and
(d) such other insurance (including boiler and machinery
insurance) as Landlord reasonably elects to obtain or any Building
mortgagee requires.
Insurance effected by Landlord under this Section 11.1 will be in
amounts which Landlord from time to time reasonably determines
sufficient or any Building mortgagee requires; will be subject to such
deductibles and exclusions as Landlord reasonably determines; will, in
the case of insurance under Sections 11.1 (b), (c) and (d), permit the
release of Tenant from certain liability under Section 13.1 (as long as
such permission can be obtained without material additional cost and
without rendering void the protection afforded by the policy); and will
otherwise be on such terms and conditions as Landlord from time to time
reasonably determines sufficient. Tenant acknowledges that Landlord's
loss of rental income insurance policy provides that payments by the
insurer may be limited to a period of one year following the date of
any damage or destruction and that no insurance proceeds will be
payable in the case of damage or destruction caused by an occurrence
not included in the policies described in Sections 11.1(b), (c) and
(d).
11.2 Tenant's Insurance.
During the term, Tenant will provide and keep in force the following
insurance:
(a) commercial general liability insurance relating to Tenant's
business (carried on, in or from the Premises) and Tenant's use and
occupancy, for personal and bodily injury and death, and damage to
others' property, with limits of not less than the Liability Insurance
Amount for any one accident or occurrence; and
(b) all risk or fire insurance (including standard extended
endorsement perils, leakage from fire protective devices and other
water damage) relating to Tenant's fixtures, furnishings, equipment,
documents, files, work products, inventory, stock-in-trade and all
leasehold improvements in the Premises on a full replacement cost basis
in amounts sufficient to prevent Tenant from becoming a co-insurer and
subject only to such deductibles and exclusions as Landlord may
reasonably approve; and
(c) if any boiler or machinery is operated in the Premises,
boiler and machinery insurance.
Landlord and the holder of any Encumbrance will be named as an
additional insureds in the policy described in Section 11.2(a), which
will include cross liability and severability of interests clauses and
will be on an "occurrence" (and not a "claims made") form. Landlord and
the holder of any Encumbrance will be named as a loss payee, as its
interest may appear, in the policies described in Sections 11.2(b) and
(c), and such policies will permit the release of Landlord and the
holder of any Encumbrance from certain liability under Section 13.2.
Tenant's insurance policies will otherwise be upon such terms and
conditions as Landlord from time to time reasonably requires. Tenant
will file with Landlord, on or before the Commencement Date and at
least 10 days before the expiration date of expiring policies, such
copies of either current policies, an insurance binder (countersigned
by the insurer), Evidence of Insurance (in form Accord 27), a binding
certificate or other proofs, as may be reasonably required to establish
Tenant's insurance coverage in effect from time to time and payment of
premiums. If Tenant fails to insure or pay premiums, or to file
satisfactory proof as required, Landlord may, upon a minimum of
24-hours' notice, effect such insurance and recover from Tenant on
demand any premiums paid.
12. Damage or Destruction.
12.1 Termination options.
If the Premises or the Building are damaged by fire or other casualty
Landlord will, promptly after learning of such damage, notify Tenant in
writing of the time necessary to repair or restore such damage, as
estimated by Landlord's architect, engineer or contractor. If such
estimate states that repair or restoration of all of such damage that
was caused to the Premises or to any other portion of the Building
necessary for Tenant's occupancy cannot be completed within 180 days
from the date of such damage (or within 30 days from the date of such
damage if such damage occurred within the last 12 months of the Term),
then Tenant will have the option to terminate this Lease. If such
estimate states that repair or restoration of all such damage that was
caused to the Building cannot be completed within 180 days from the
date of such damage, or if such damage occurred within the last 12
months of the Term and such estimate states that repair or restoration
of all such damage that was caused to the Premises or to any other
portion of the Building necessary for Tenant's occupancy cannot be
completed within 30 days from the date of such damage, or if such
damage is not insured against by the insurance policies required to be
maintained by Landlord according to Section 11.1, then Landlord will
have the option to terminate this Lease. Any option to terminate
granted above must be exercised by written notice to the other party
given within 10 days after Landlord delivers to Tenant the notice of
estimated repair time. If either party exercises its option to
terminate this Lease, the Term will expire and this Lease will
terminate 10 days after notice of termination is delivered; provided,
however, that Rent for the period commencing on the date of such damage
until the date this Lease terminates will be reduced to the reasonable
value of any use or occupation of the Premises by Tenant during such
period and Landlord will be entitled to all proceeds of the insurance
policy described in Section 11.2(b) applicable to any damaged leasehold
improvements in the Premises.
12.2 Repair Obligations.
If the Premises or the Building are damaged by fire or other casualty
and neither party terminates this Lease according to Section 12.1, then
Landlord will repair and restore such damage with reasonable
promptness, subject to delays for insurance adjustments and delays
caused by matters beyond Landlord's control. Landlord will have no
liability to Tenant and Tenant will not be entitled to terminate this
Lease if such repairs and restoration are not in fact completed within
the estimated time period, provided that Landlord promptly commences
and diligently pursues such repairs and restoration to completion.
Notwithstanding anything to the contrary contained herein, if such
repair or restoration work is not completed by Landlord within 180 days
from the date of such damage, Tenant shall have the right to terminate
this Lease. In no event will Landlord be obligated to repair, restore
or replace any of the property required to be insured by Tenant
according to Section 11.2; Tenant agrees to repair, restore or replace
such property as soon as possible after the date of damage, to at least
the condition existing prior to its damage, using materials at least
equal to Building standard. However, in connection with its repair and
restoration of such damage, Landlord may, at its option, elect to
repair and restore the damage, if any, caused to any or all of the
leasehold improvements required to be insured by Tenant according to
Section 11.2(b). If Landlord makes such election, Landlord will be
entitled to those proceeds of the insurance policy described in Section
11.2(b) required to complete those leasehold improvements which
Landlord so elects to repair or restore.
12.3 Rent Abatement.
If any fire or casualty damage renders all or any portion of the
Premises to such a condition where Tenant is actually unable to use any
or all of the Premises for the normal conduct of its business
("Untenantable"), and if this Lease is not terminated according to
Section 12.1, then Rent will ▇▇▇▇▇ beginning on the date of such
damage. Such abatement will end on the date Landlord has substantially
completed the repairs and restoration Landlord is required to perform
according to Section 12.2. Such abatement will be in an amount bearing
the same ratio to the total amount of Rent for such period as the
Untenantable portion of the Premises bears to the entire Premises. In
no event will Landlord be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from
damage caused by fire or other casualty or the repair of such damage,
provided however that, to the extent Tenant remains in possession of a
portion of the Premises, Landlord will take all reasonable steps to
minimize the disruption to Tenant's business and use of such portion of
the Premises during the period of repair.
13. Waivers and Indemnities.
13.1 Landlord's Waivers.
As used in this Section 13, a party's "Affiliates" means that party's
parent, subsidiary and affiliated corporations and its and their
partners, ventures, directors, officers, shareholders, agents, servants
and employees. Tenant and its Affiliates will not be liable or in any
way responsible to Landlord for, and Landlord waives all claims against
Tenant and its Affiliates for, any loss, injury or damage that is
insured or required to be insured by Landlord under Sections 11.1(b),
(c) or (d), so long as such loss, injury or damage results from or in
connection with this Lease or Tenant's use and occupancy of the
Premises. Landlord's waivers under this Section 13.1 will survive the
expiration or early termination of the Term.
13.2 Tenant's Waivers.
Except to the extent caused by the willful or negligent act or omission
or breach of this Lease by Landlord or anyone for whom Landlord is
legally responsible, Landlord, its Affiliates and the holder of any
Encumbrance will not be liable or in any way responsible for, and
Tenant waives all claims against Landlord, its Affiliates and the
holder of any Encumbrance for any loss, injury or damage suffered by
Tenant or others relating to (a) loss or theft of, or damage to,
property of Tenant or others; (b) injury or damage to persons or
property resulting from fire, explosion, falling plaster, escaping
steam or gas, electricity, water, rain or snow, or leaks from any part
of the Building or from any pipes, appliances or plumbing, or from
dampness; or (c) damage caused by other tenants, occupants or persons
in the Premises or other premises in the Building, or caused by the
public or by construction of any private or public work. Landlord, its
Affiliates and the holder of any Encumbrance will not be liable or in
any way responsible to Tenant for, and Tenant waives all claims against
Landlord, its Affiliates and the holder of any Encumbrance for, any
loss, injury or damage that is insured or required to be insured by
Tenant under Sections 11.2(b) or (c), so long as such loss, injury or
damage results from or in connection with this Lease or Landlord's
operation of the Building. Tenant's waivers under this Section 13.2
will survive the expiration or early termination of the Term.
13.3 Landlord's Indemnity.
Subject to Section 7.4 and 13.2 and except to the extent caused by the
willful or negligent act or omission or breach of this Lease by Tenant
or anyone for whom Tenant is legally responsible, Landlord will
indemnify and hold Tenant harmless from and against any and all
liability, loss, claims, demand, damages or expense (including
reasonable attorneys' fees) due to or arising out of any willful or
negligent act or omission or breach of this Lease by Landlord or anyone
for whom Landlord is legally responsible. Landlord's obligations under
this Section 13.3 will survive the expiration or early termination of
the Term.
13.4 Tenant's indemnity.
Subject to Section 13.1 and except to the extent caused by the willful
or negligent act or omission or breach of this Lease by Landlord or
anyone for whom Landlord is legally responsible, Tenant will indemnify
and hold Landlord and the holder of any Encumbrance harmless from and
against any and all liability, loss, claims, demands, damages or
expenses (including reasonable attorneys' fees) due to or arising out
of any accident or occurrence on or about the Premises (including,
without limitation, accidents or occurrences resulting in injury,
death, property damage or theft) or any willful or negligent act or
omission of or breach of this Lease by Tenant or anyone for whom Tenant
is legally responsible. Tenant's obligations under this Section 13.4
will survive the expiration or early termination of the Term.
14. Condemnation.
14.1 Full Taking.
If all or substantially all of the Building or Premises are taken for
any public or quasi-public use under any applicable Laws or by right of
eminent domain, or are sold to the condemning authority in lieu of
condemnation, then this Lease will terminate as of the date the earlier
of when the condemning authority takes physical possession of or title
to the Building or Premises.
14.2 Partial Taking.
(a) Landlord's Termination of Lease. If only part of the Building
or Premises is thus taken or sold, and if after such partial taking, in
Landlord's reasonable judgment, alteration or reconstruction is not
economically justified, then Landlord (whether or not the Premises are
affected) may terminate this Lease by giving written notice to Tenant
within 60 days after the taking.
(b) Tenant's Termination. If over 20% of the Premises is thus
taken or sold and Landlord is unable to provide Tenant with comparable
replacement premises in the Building, Tenant may terminate this Lease
if in Tenant's reasonable judgment the Premises cannot be operated by
Tenant in an economically viable fashion because of such partial
taking. Such termination by Tenant must be exercised by written notice
to Landlord given not later than 60 days after Tenant is notified of
the taking of the Premises.
(c) Effective Date of Termination. Termination by Landlord or
Tenant will be effective as of the date when physical possession of
the applicable portion of the Building or Premises is taken by
condemning authority.
(d) Election to Continue Lease. If neither Landlord nor Tenant
elects to terminate this Lease upon a partial taking of a portion of
the Premises, the Rent payable under this Lease will be diminished by
an amount allocable to the portion of the Premises which was so taken
or sold. If this Lease is not terminated upon a partial taking of the
Building or Premises, Landlord will, at Landlord's sole expense,
promptly restore and reconstruct the Building and Premises to
substantially their former condition to the extent the same is
feasible. However, Landlord will not be required to spend for such
restoration or reconstruction an amount in excess of the net amount
received by Landlord as compensation or damages for the part of the
Building or Premises so taken.
14.3 Awards.
As between the parties to this Lease, Landlord will be entitled to
receive, and Tenant assigns to Landlord, all of the compensation
awarded upon taking of any part or all of the Building or Premises,
including any award for the value of the unexpired Term. However,
Tenant may assert a claim in a separate proceeding against the
condemning authority for any damages resulting from the taking of
Tenant's trade fixtures or personal property, or for moving expenses,
business relocation expenses or damages to Tenant's business incurred
as a result of such condemnation.
15. Assignment and Subletting.
15.1 Limitation.
Without Landlord's prior written consent, which, subject to Section
15.3 below, shall not be unreasonably withheld or delayed, Tenant will
not assign all or any of its interest under this Lease, sublet all or
any part of the Premises or permit the Premises to be used by any
parties other than Tenant and its employees.
15.2 Notice Of Proposed Transfer; Landlord's Options.
If Tenant desires to enter into any assignment of this Lease or a
sublease of all or any part of the Premises, Tenant will first give
Landlord written notice of the proposed assignment or sublease, which
notice will contain the name and address of the proposed transferee,
the proposed use of the Premises, statements reflecting the proposed
transferee's current financial condition and income and expenses for
the past 2 years, and the principal terms of the proposed assignment or
sublease. Except in the case of any transfer permitted under Section
15.7, Landlord will have the option, which must be exercised, if at
all, by notice given to Tenant within 10 days after Landlord's receipt
of Tenant's notice of the proposed transfer, either (i) if Tenant's
notice relates to a subletting, to sublet from Tenant such space as is
described in the notice for such portion of the Term as is described in
the notice, upon the same terms and conditions and for the same Rent
(apportioned, as appropriate, to the amount of such space) as provided
in this Lease; or (ii) if such notice relates to an assignment, to
become Tenant's assignee.
15.3 Consent Not To Be Unreasonably Withheld.
If Landlord does not exercise its applicable option under Section 15.2,
then Landlord will not unreasonably withhold or delay its consent to
the proposed assignment or subletting if each of the following
conditions is satisfied:
(a) the proposed transferee, in Landlord's reasonable opinion, has
sufficient financial capacity and business experience to perform
Tenant's obligations under this Lease; and
(b) the proposed transferee will make use of the Premises which in
Landlord's reasonable opinion (i) is lawful, (ii) is consistent with
the permitted use of the Premises under this Lease, (iii) is consistent
with the general character of business carried on by tenants of an
office building of this type and quality, (iv) does not conflict with
any exclusive rights or covenants not to compete in favor of any other
tenant or proposed tenant of the Building, (v) will not increase the
likelihood of damage or destruction to the Building, (vi) will not
cause an increase in insurance premiums for insurance policies
applicable to the Building, and (vii) will not require new tenant
improvements incompatible with then-existing Building systems and
components; and
(c) the proposed transferee does not have a poor business
reputation or reputation as being an undesirable tenant in the general
business community; and
(d) the proposed transferee, at the time of the proposed transfer,
is neither a tenant in the Complex or any building owned or managed by
Landlord or any affiliate of Landlord in the same city in which the
Building is located, nor a party with whom Landlord is then negotiating
for the lease of space in the Complex; and
(e) [INTENTIONALLY DELETED]
(f) at the time of the proposed transfer no "Default" (as defined
in Section 20.1) exists under this Lease; and
(g) Tenant shall pay Landlord's costs and attorney fees for review
of the assignment or subletting documentation, not to exceed $500.00
per assignment or sublet.
15.4 Form Of Transfer.
If Landlord consents to a proposed assignment or sublease, Landlord's
consent will not be effective unless and until Tenant delivers to
Landlord an original duly executed assignment or sublease, as the case
may be, in a form reasonably acceptable to Landlord, that provides, in
the case of a sublease, that the subtenant will comply with all
applicable terms and conditions of this Lease, and, in the case of an
assignment, an assumption by the assignee of all of the terms,
covenants and conditions which this Lease requires Tenant to perform.
15.5 Payments To Landlord.
If Landlord does not exercise its applicable option under Section 15.2
and Tenant effects an assignment or sublease, then Landlord will be
entitled to receive and collect, either from Tenant or directly from
the transferee, 50% of the amount by which the consideration required
to be paid by the transferee for the use and enjoyment of Tenant's
rights under this Lease (after deducting from such consideration
Tenant's reasonable costs incurred in effecting the assignment or
sublease) exceeds the Rent payable by Tenant to Landlord allocable to
the transferred space. Such percentage of such amount will be payable
to Landlord at the time(s) Tenant receives the same from its transferee
(whether in monthly installments, in a lump sum, or otherwise).
15.6 Change Of Ownership.
Any change by Tenant in the form of its legal organization (such as,
for example, a change from a general to a limited partnership), any
transfer of 51% or more of Tenant's assets effecting a change in
identity of persons exercising effective control of Tenant and any
other transfer of interest effecting a change in identity of persons
exercising effective control of Tenant will be deemed an "assignment"
of this Lease requiring Landlord's prior written consent. The transfer
of any outstanding capital stock of a corporation whose stock is
publicly-traded will not, however, be deemed a "transfer of interest"
under this Section 15.6.
15.7 Permitted Transfers.
Tenant may, upon notice to Landlord, but without obtaining Landlord's
consent, assign this Lease or sublease all or any part of the Premises
to a wholly-owned subsidiary of Tenant, the parent of Tenant or any
corporation into or with which Tenant may be merged or consolidated as
long as said transferee has a net worth equal to or greater than
Tenant.
15.8 Effect Of Transfers.
No subletting or assignment will release Tenant from any of its
obligations under this Lease unless Landlord agrees to the contrary in
writing. Acceptance of Rent by Landlord from any person other than
Tenant will not be deemed a waiver by Landlord of any provision of this
Section 15. Consent to one assignment or subletting will not be deemed
a consent to any subsequent assignment or subletting. In the event of
any default by any assignee or subtenant or any successor of Tenant in
the performance of any Lease obligation, Landlord may proceed directly
against Tenant without exhausting remedies against such assignee,
subtenant or successor. The voluntary or other surrender of this Lease
by Tenant or the cancellation of this Lease by mutual agreement of
Tenant and Landlord will not work a merger and will, at Landlord's
option, terminate all or any subleases or operate as an assignment to
Landlord of all or any subleases; such option will be exercised by
notice to Tenant and all known subtenants in the Premises. If Landlord
shall choose to take an assignment of a sublease then the subtenant
shall be bound to Landlord for the balance of the Term thereof and
shall attorn directly to Landlord under all of the executory terms of
the sublease except that Landlord shall not (a) be liable for any
previous act, omission or negligence of Tenant, (b) be subject to any
counterclaim, defense or offset not expressly provided for in the
sublease and accruing against Tenant, (c) be bound by any previous
modification or amendment of the sublease made without Landlord's
consent or by any previous prepayment of more than one month's Rent, or
(d) be obligated to perform any repairs or other work beyond Landlord's
obligation under this Lease. Each subtenant shall execute and deliver
such instruments as Landlord may reasonably request to evidence said
attornment.
16. Personal property.
16.1 Installation And Removal.
Tenant may install in the Premises its personal property (including
Tenant's usual trade fixtures) in a proper manner, provided that no
such installation will interfere with or damage the mechanical,
plumbing or electrical systems or the structure of the Building, and
provided further that if such installation would require any change,
addition or improvement to the Premises, such installation will be
subject to Section 9.1. If no Default then exists, any such personal
property installed in the Premises by Tenant (a) may be removed from
the Premises from time to time in the ordinary course of Tenant's
business or in the course of making any changes, additions or
improvements to the Premises permitted under Section 9.1, and (b) will
be removed by Tenant at the end of the Term according to Section 3.4.
Tenant will promptly repair at its expense any damage to the Building
resulting from such installation or removal.
16.2 Responsibility.
Tenant will be solely responsible for all costs and expenses related to
personal property used or stored in the Premises. Tenant will pay any
taxes or other governmental impositions levied upon or assessed against
such personal property, or upon Tenant for the ownership or use of such
personal property, on or before the due date for payment. Such personal
property taxes or impositions are not included in Taxes.
16.3 Landlord's Lien.
[INTENTIONALLY DELETED]
17. Estoppel Certificates.
Within ten (10) business days of Landlord's request after Tenant has
occupied the Premises, Tenant will execute and deliver to Landlord an
Occupancy Estoppel Certificate in the form of Exhibit C. In addition,
Tenant agrees that at any time and from time to time (but on not less
than 10 days' prior request by Landlord), Tenant will execute,
acknowledge and deliver to Landlord a certificate indicating any or all
of the following: (a) the Commencement Date and Expiration Date; (b)
that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that this Lease is in full force and
effect, as modified, and stating the date and nature of each
modification); (c) the date, if any, through which Rent, Additional
Rent and any other Rent payable have been paid; (d) that no default by
Landlord, to the best of Tenant's knowledge, or Tenant exists which has
not been cured, except as to defaults stated in such certificate; (f)
provided such events have occurred, that Tenant has accepted the
Premises and that all improvements required to be made to the Premises
by Landlord have been completed according to this Lease; (g) that,
except as specifically stated in such certificate, Tenant, and only
Tenant, currently occupies the Premises; and (h) such other matters as
may be reasonably requested by Landlord. Any such certificate may be
relied upon by Landlord and any prospective purchaser or present or
prospective mortgagee, deed of trust beneficiary or ground lessor of
all or a portion of the Building and/or Land.
18. Transfer of Landlord's Interest.
18.1 Sale, Conveyance And Assignment.
Nothing in this Lease will restrict Landlord's right to sell, convey,
assign or otherwise deal with the Building or Landlord's interest under
this Lease.
18.2 Effect Of Sale, Conveyance Or Assignment.
A sale, conveyance or assignment of the Building will automatically
release Landlord from liability under this Lease from and after the
effective date of the transfer, except for any liability relating to
the period prior to such effective date; and Tenant will look solely to
Landlord's transferee for performance of Landlord's obligations
relating to the period after such effective date. This Lease will not
be affected by any such sale, conveyance or assignment and Tenant will
attorn to Landlord's transferee.
18.3 Subordination And Nondisturbance.
This Lease is and will be subject and subordinate in all respects to
any ground lease, mortgage or deed of trust now or later encumbering
the Building, and to all their renewals, modifications, supplements,
consolidations and replacements (an "Encumbrance") provided the holder
of such Encumbrance agrees (either in the Encumbrance or in a separate
agreement with Tenant) that so long as Tenant is not in default of its
obligations under this Lease, this Lease will not be terminated and
Tenant's possession of the Premises will not be disturbed by the
termination or foreclosure, or proceedings for enforcement, of such
Encumbrance. While such subordination will occur automatically, Tenant
agrees, upon request by and without cost to Landlord or any successor
in interest, to promptly execute and deliver to Landlord or the holder
of an Encumbrance such instrument(s) as may be reasonably required to
evidence such subordination. In the alternative, however, the holder of
an Encumbrance may unilaterally elect to subordinate such Encumbrance
to this Lease. Landlord hereby represents that, as of the Date of this
Lease, the Building is not subject to any Encumbrance.
18.4 Attornment.
If the interest of Landlord is transferred to any person (a "Successor
Landlord") by reason of the termination or foreclosure, or proceedings
for enforcement, of an Encumbrance, or by delivery of a deed in lieu of
such foreclosure or proceedings, Tenant will immediately and
automatically attorn to the Successor Landlord. Upon attornment this
Lease will continue in full force and effect as a direct lease between
the Successor Landlord and Tenant, upon all of the same terms,
conditions and covenants as stated in this Lease except that a
Successor Landlord shall not be (a) liable for any previous act or
omission or negligence of Landlord under this Lease, (b) subject to any
counterclaim defense or offset not expressly provided for in this Lease
and asserted with reasonable promptness, which therefore shall have
accrued to Tenant against Landlord, (c) bound by any previous
modification or amendment of this Lease or by any previous prepayment
of more than one month's Rent, unless such modification or prepayment
shall have been approved in writing by the holder of any Encumbrance
through or by reason of which the Successor Landlord shall have
succeeded to the rights of Landlord under this Lease or (d) obligated
to perform any repairs or other work beyond Landlord's obligations
under this Lease. Tenant agrees, upon request by and without cost to
the Successor Landlord, to promptly execute and deliver to the
Successor Landlord such instrument(s) as may be reasonably required to
evidence such attornment.
19. Rules and Regulations.
Tenant agrees to faithfully observe and comply with the Rules and
Regulations set forth in Exhibit D and with all reasonable
modifications and additions to such Rules and Regulations (which will
be applicable to all Building tenants) from time to time adopted by
Landlord and of which Tenant is notified in writing. No such
modification or addition will contradict or abrogate any right
expressly granted to Tenant under this Lease. Landlord's enforcement of
the Rules and Regulations will be uniform and nondiscriminatory, but
Landlord will not be responsible to Tenant for failure of any person to
comply with the Rules and Regulations.
20. Tenant's Default and Landlord's Remedies.
20.1 Default.
This Lease and the Term and rights hereby granted are subject to the
following limitations which will each constitute a material breach by
Tenant and a "Default" under this Lease:
(a) Failure to Pay Rent. Tenant fails to pay Rent, Additional Rent
or any other amount payable by Tenant under the terms of this Lease
when due, and such failure continues for 10 days after written notice
from Landlord to Tenant of such failure; provided that with respect to
Rent and Additional Rent, Tenant will be entitled to only 3 notices of
such failure during any Lease Year and if, after 3 such notices are
given in any Lease Year, Tenant fails, during such Lease Year, to pay
any such amounts when due, such failure will constitute a Default
without further notice by Landlord or additional cure period.
(b) Failure to Perform Other Obligations. Tenant breaches or fails
to comply with any other provision of this Lease applicable to Tenant,
and such breach or noncompliance continues for a period of 10 days
after notice by Landlord to Tenant; or, if such breach or noncompliance
cannot be reasonably cured within such 10-day period, Tenant does not
in good faith commence to cure such breach or noncompliance within such
10-day period or does not diligently complete such cure as soon as
possible, but no later than 60 days after such notice from Landlord.
However, if such breach or noncompliance causes or results in (i) a
dangerous condition on the Premises or the Building, (ii) any insurance
coverage carried by Landlord or Tenant with respect to the Premises or
Building being jeopardized, or (iii) a material disturbance to another
tenant, then a Default will exist if such breach or noncompliance is
not cured as soon as reasonably possible after notice by Landlord to
Tenant, and in any event is not cured within 30 days after such notice.
For purposes of this Section 20.1 (b), financial inability will not be
deemed a reasonable ground for failure to immediately cure any breach
of, or failure to comply with, the provisions of this Lease.
(c) Nonoccupancy of Premises. If Tenant fails to occupy and use
the Premises within 15 days after the Commencement Date or leaves
substantially all of the Premises unoccupied for 15 consecutive days or
vacates and abandons substantially all of the Premises, it shall not be
a default of the Lease so long as Tenant adequately secures the
Premises and continues to comply with all other Lease obligations,
including without limitation, payment of Rent and providing all
insurance as required pursuant to Section 11.2.
(d) Transfer of Interest without Consent. Tenant's interest under
this Lease or in the Premises is transferred or passes to, or devolves
upon, any other party in violation of Section 15.
(e) Execution and Attachment Against Tenant. Tenant's interest
under this Lease or in the Premises is taken upon execution or by other
process of law directed against Tenant, or is subject to any attachment
by any creditor or claimant against Tenant and such attachment is not
discharged or disposed of within 15 days after levy.
(f) Bankruptcy or Related Proceedings. Tenant files a petition in
bankruptcy or insolvency, or reorganization or arrangement under any
bankruptcy or insolvency Laws, or voluntarily takes advantage of any
such Laws by answer or otherwise, or dissolves or makes an assignment
for the benefit of creditors, or involuntary proceedings under any such
Laws or for the dissolution of Tenant are instituted against Tenant, or
a receiver or trustee is appointed for the Premises or for all or
substantially all of Tenant's property, and such proceedings are not
dismissed or such receivership or trusteeship vacated within 60 days
after such institution or appointment.
20.2 Remedies.
Time is of the essence. If any Default occurs, Landlord will have the
right, at Landlord's election, then or at any later time, to exercise
any one or more of the remedies described below. Exercise of any of
such remedies will not prevent the concurrent or subsequent exercise of
any other remedy provided for in this Lease or otherwise available to
Landlord at law or in equity.
(a) Cure by Landlord. Landlord may, at Landlord's option but
without obligation to do so, and without releasing Tenant from any
obligations under this Lease, make any payment or take any action as
Landlord deems necessary or desirable to cure any Default in such
manner and to such extent as Landlord deems necessary or desirable.
Landlord may do so without additional demand on, or additional written
notice to, Tenant and without giving Tenant an additional opportunity
to cure such Default. Tenant covenants and agrees to pay Landlord, upon
demand, all advances, costs and expenses of Landlord in connection with
making any such payment or taking any such action, including reasonable
attorney's fees, together with interest at the rate described in
Section 4.5, from the date of payment of any such advances, costs and
expenses by Landlord.
(b) Termination of Lease and Damages. Landlord may terminate this
Lease, effective at such time as may be specified by written notice to
Tenant, and demand (and, if such demand is refused, recover) possession
of the Premises from Tenant. Tenant will remain liable to Landlord for
damages in an amount equal to the Rent, Additional Rent and other
amount which would have been owing by Tenant for the balance of the
Term had this Lease not been terminated, less the net proceeds, if any,
of any reletting of the Premises by Landlord subsequent to such
termination, after deducting all Landlord's expenses in connection with
such recovery of possession or reletting. Landlord will be entitled to
collect and receive such damages from Tenant on the days on which the
Rent, Additional Rent and other amount would have been payable if this
Lease had not been terminated. Alternatively, at Landlord's option,
Landlord will be entitled to recover from Tenant, as damages for loss
of the bargain and not as a penalty, an aggregate sum equal to (i) all
unpaid Rent, Additional Rent and other amount for any period prior to
the termination date of this Lease (including interest from the due
date to the date of the award at the rate described in Section 4.5),
plus any other sum of money and damages owed by Tenant to landlord for
events or actions occurring prior to the termination date; plus (ii)
the present value at the time of termination (calculated at the rate
commonly called the discount rate in effect at the Federal Reserve Bank
of New York on the termination date) of the amount, if any, by which
(A) the aggregate of the Rent, Additional Rent and all other amount
payable by Tenant under this Lease that would have accrued for the
balance of the Term after termination (with respect to Additional Rent,
such aggregate will be calculated by assuming that Expenses and Taxes
for the Fiscal Year in which termination occurs and for each subsequent
Fiscal Year remaining in the Term if this Lease had not been terminated
will increase by 8% per year over the amount of Expenses and Taxes for
the prior Fiscal Year), exceeds (B) the amount of such Rent, Additional
Rent and other amount which Landlord will receive for the remainder of
the Term from any reletting of the Premises occurring prior to the date
of the award, or if the Premises have not been relet prior to the date
of the award, the amount, if any, of such Rent, Additional Rent and
other amount which could reasonably be recovered by reletting the
Premises for the remainder of the Term at the then-current fair rental
value, in either case taking into consideration loss of rent while
finding a new tenant, tenant improvements and rent abatements necessary
to secure a new tenant, leasing brokers' commissions and other costs
which Landlord has incurred or might incur in leasing the Premises to a
new tenant; plus (iii) interest on the amount described in (ii) above
from the termination date to the date of the award at the rate
described in Section 4.5.
(c) Repossession and Reletting. Landlord may, with due process of
law, re-enter and take possession of all or any part of the Premises,
without additional demand or notice, and repossess the same and expel
Tenant and any party claiming by, through or under Tenant, and remove
the effects of both using such force for such purposes as may be
necessary, without being liable for prosecution for such action or
being deemed guilty of any manner of trespass, and without prejudice to
any remedies for arrears of Rent or right to bring any proceeding for
breach of covenants or conditions. No such reentry or taking possession
of the Premises by Landlord will be construed as an election by
Landlord to terminate this Lease unless a written notice of such
intention is given to Tenant. No notice from Landlord or notice given
under a forcible entry and detainer statute or similar Laws will
constitute an election by Landlord to terminate this Lease unless such
notice specifically so states. Landlord reserves the right, following
any reentry or reletting, to exercise its right to terminate this Lease
by giving Tenant such written notice, in which event the Lease will
terminate as specified in such notice. After recovering possession of
the Premises, Landlord may, from time to time, but will not be
obligated to, relet all or any part of the Premises for Tenant's
account, for such term or terms and on such conditions and other terms
as Landlord, in its discretion, determines. Landlord may make such
repairs, alterations or improvements as Landlord considers appropriate
to accomplish such reletting, and Tenant will reimburse Landlord upon
demand for all costs and expenses, including attorneys' fees, which
Landlord may incur in connection with such reletting. Landlord may
collect and receive the rents for such reletting but Landlord will in
no way be responsible or liable for any failure to relet the Premises
or for any inability to collect any rent due upon such reletting.
Regardless of Landlord's recovery of possession of the Premises, Tenant
will continue to pay on the dates specified in this Lease, the Rent,
Additional Rent and other amount which would be payable if such
repossession had not occurred, less a credit for the net amounts, if
any, actually received by Landlord through any reletting of the
Premises. Alternatively, at Landlord's option, Landlord will be
entitled to recover from Tenant, as damages for loss of the bargain and
not as a penalty, an aggregate sum equal to (i) all unpaid Rent,
Additional Rent and other amount for any period prior to the
repossession date (including interest from the due date to the date of
the award at the rate described in Section 4.5), plus (ii) the present
value at the time of repossession (calculated at the rate commonly
called the discount rate in effect at the Federal Reserve Bank of New
York on the repossession date) of the amount, if any, by which (A) the
aggregate of the Rent, Additional Rent and all other amount payable by
Tenant under this Lease that would have accrued for the balance of the
Term after repossession (with respect to Additional Rent, such
aggregate will be calculated by assuming that Expenses and Taxes for
the Fiscal Year in which repossession occurs and for each subsequent
Fiscal Year remaining in the Term if Landlord had not repossessed the
Premises will increase by 8% per year over the amount of Expenses and
Taxes for the prior Fiscal Year), exceeds (B) the amount of such Rent,
Additional Rent and other amount which Landlord will receive for the
remainder of the Term from any reletting of the Premises occurring
prior to the date of the award, or if the Premises have not been relet
prior to the date of the award, the amount, if any, of such Rent,
Additional Rent and other amount which could reasonably be recovered by
reletting the Premises for the remainder of the Term at the
then-current fair rental value, in either case taking into
consideration loss of rent while finding a new tenant, tenant
improvements and rent abatements necessary to secure a new tenant,
leasing brokers' commissions and other costs which Landlord has
incurred or might incur in leasing the Premises to a new tenant; plus
(iii) interest on the amount described in (ii) above from the
repossession date to the date of the award at the rate described in
Section 4.5.
(d) Bankruptcy Relief. Nothing contained in this Lease will limit
or prejudice Landlord's right to prove and obtain as liquidated damages
in any bankruptcy, insolvency, receivership, reorganization or
dissolution proceeding, an amount equal to the maximum allowable by any
Laws governing such proceeding in effect at the time when such damages
are to be proved, whether or not such amount be greater, equal or less
than the amounts recoverable, either as damages or Rent, under this
Lease.
21. Landlord's Default and Tenant's Remedies.
21.1 Default.
If Tenant believes that Landlord has breached or failed to comply with
any provision of this Lease applicable to Landlord, Tenant will give
written notice to Landlord describing the alleged breach or
noncompliance. Landlord will not be deemed in default under this Lease
if Landlord cures the breach or noncompliance within 20 days after
receipt of Tenant's notice or, if the same cannot reasonably be cured
within such 20-day period, if Landlord in good faith commences to cure
such breach or noncompliance within such period and then diligently
pursues the cure to completion. Tenant will also send a copy of such
notice to the holder of any Encumbrance of whom Tenant has been
notified in writing, and such holder will also have the right to cure
the breach or noncompliance within the period of time described above.
21.2 Remedies.
If Landlord breaches or fails to comply with any provision of this
Lease applicable to Landlord, and such breach or noncompliance is not
cured within the period of time described in Section 21.1, then Tenant
may exercise any right or remedy available to Tenant at law or in
equity, except to the extent expressly waived or limited by the terms
of this Lease.
21.3 Cure by Encumbrance Holder.
If any act or omission by Landlord shall give Tenant the right,
immediately or after the lapse of time, to cancel or terminate this
Lease or to claim a partial or total eviction, Tenant shall not
exercise any such right until (a) it shall have given written notice of
such act or omission to each holder of any Encumbrance and (b) a
reasonable period for remedying such act or omission shall have elapsed
following such notice and following the time when such holder of an
Encumbrance shall have become entitled under its Encumbrance to remedy
the same (which shall in no event be less than the period to which
Landlord would be entitled under this Lease to effect such remedy)
provided such holder of an Encumbrance shall, with reasonable
diligence, give Tenant notice of its intention to remedy such act or
omission and shall commence and continue to act upon such intention.
22. Security deposit.
22.1 Amount.
Upon execution of this Lease, Tenant will deposit the Security Deposit
with Landlord in the amount described in Section 1.1(j). Landlord and
Tenant intend the Security Deposit to be used solely as security for
Tenant's faithful and diligent performance of all of Tenant's
obligations under this Lease. The Security Deposit will remain in
Landlord's possession for the entire Term, and Landlord will not be
required to segregate it from Landlord's general funds. Tenant will not
be entitled to any interest on the Security Deposit.
22.2 Use and Restoration.
If Tenant fails to perform any of its obligations under this Lease,
Landlord may, at its option, use, apply or retain all or any part of
the Security Deposit for the payment of (1) any Rent in arrears; (2)
any expenses Landlord may incur as a direct or indirect result of
Tenant's failure to perform; and (3) any other losses or damages
Landlord may suffer as a direct or indirect result of Tenant's failure
to perform. If Landlord so uses or applies all or any portion of the
Security Deposit, Landlord will notify Tenant of such use or
application and Tenant will, within 10 days after the date of
Landlord's notice, deposit with Landlord a sum sufficient to restore
the Security Deposit to the amount held by Landlord immediately prior
to such use or application. Tenant's failure to so restore the Security
Deposit will constitute a Default.
22.3 Transfers.
Tenant will not assign or encumber the Security Deposit without
Landlord's express written consent. Neither Landlord nor its successors
or assigns will be bound by any assignment or encumbrance unless
Landlord has given its consent. Landlord will have the right, at any
time and from time to time, to transfer the Security Deposit to any
purchaser or lessee of the entire Building. Upon any such transfer,
Tenant agrees to look solely to the new owner or lessee for the return
of the Security Deposit.
22.4 Refund.
Provided that Tenant has fully and faithfully performed all of its
obligations under this Lease, Landlord will refund the Security
Deposit, or any balance remaining, to Tenant or, at Landlord's option,
to the latest assignee of Tenant's interest under this Lease, within 45
days after the expiration or early termination of the Term and Tenant's
vacation and surrender of the Premises to Landlord in the condition
required by Section 3.4. If Tenant fails to make any final estimated
payment of Additional Rent required by Landlord according to Section
4.2(c), Landlord may withhold such final payment from the amount of the
Security Deposit refund. Landlord's obligations under this Section 22.4
will survive the expiration or early termination of the Term.
23. Brokers.
Landlord and Tenant represent and warrant that no broker or agent
negotiated or was instrumental in negotiating or consummating this
Lease except TrizecHahn Colony Square GP LLC and The ▇▇▇▇▇▇ Group
("Brokers"). Neither party knows of any other real estate broker or
agent who is or might be entitled to a commission or compensation in
connection with this Lease. Landlord will pay all fees, commissions or
other compensation payable to the Brokers to be paid by Landlord
according to Section 1.1(o) of the Lease and Tenant will pay all fees,
commissions or other compensation payable to the Brokers to be paid by
Tenant according to Section 1.1(o) of the Lease. Pursuant to Georgia
Real Estate Commission Regulation ▇▇▇-▇-▇▇▇, TrizecHahn Colony Square
GP LLC hereby discloses the following concerning this lease
transaction: (1) TrizecHahn Colony Square GP LLC represents Landlord
and not Tenant; (2) The ▇▇▇▇▇▇ Group represents Tenant and not
Landlord; and (3) both TrizecHahn Colony Square GP LLC and The ▇▇▇▇▇▇
Group shall receive their compensation from Landlord. Tenant and
Landlord will indemnify and hold each other harmless from all damages
paid or incurred by the other resulting from any claims asserted
against either party by brokers or agents claiming through the other
party. Landlord's obligation under this Section 23 will survive the
expiration or early termination of the Term.
24. Limitations on Landlord's Liability.
Any liability for damages, breach or nonperformance by Landlord, or
arising out of the subject matter of, or the relationship created by,
this Lease, will be collectible only out of Landlord's interest in the
Building and no personal liability is assumed by, or will at any time
be asserted against, Landlord, its parent and affiliated corporations,
its and their partners, venturers, directors, officers, agents,
servants and employees, or any of its or their successors or assigns;
all such liability, if any, being expressly waived and released by
Tenant. Landlord's review, supervision, commenting on or approval of
any aspect of work to be done by or for Tenant (under Section 9,
Exhibit B or otherwise) are solely for Landlord's protection and except
as expressly provided, create no warranties or duties to Tenant or to
third parties.
25. Notices.
All notices required or permitted under this Lease must be in writing
and will only be deemed properly given and received (a) when actually
given and received, if delivered in person to a party who acknowledges
receipt in writing; or (b) one business day after deposit with a
private courier or overnight delivery service, if such courier or
service obtains a written acknowledgment of receipt; or (c) 2 business
days after deposit in the United States mails, certified or registered
mail with return receipt requested and postage prepaid. All such
notices must be transmitted by one of the methods described above to
the party to receive the notice at, in the case of notices to Landlord,
Landlord's General Address, and in the case of notices to Tenant, the
applicable Tenant's Notice Address, or, in either case, at such other
address(es) as either party may notify the other of according to this
Section 25. Time shall be of the essence for the giving of all notices
required or permitted under the provisions of this Lease.
26. Miscellaneous.
26.1 Binding Effect.
Each of the provisions of this Lease will extend to bind or inure to
the benefit of, as the case may be, Landlord and Tenant, and their
respective heirs, successors and assigns, provided this clause will not
permit any transfer by Tenant contrary to the provisions of Section 15.
26.2 Complete Agreement; Modification.
All of the representations and obligations of the parties are contained
in this Lease and no modification, waiver or amendment of this Lease or
of any of its conditions or provisions will be binding upon a party
unless in writing signed by such party.
26.3 Delivery For Examination.
Submission of the form of the Lease for examination will not bind
Landlord in any manner, and no obligations will arise under this Lease
until it is signed by both Landlord and Tenant and delivery is made to
each.
26.4 No Air Rights.
This Lease does not grant any easements or rights for light, air or
view. Any diminution or blockage of light, air or view by any structure
or condition now or later erected will not affect this Lease or impose
any liability on Landlord.
26.5 Enforcement Expenses.
Each party agrees to pay, upon demand, all of the other party's costs,
charges and expenses, including the fees and out-of-pocket expenses of
counsel, agents, and others retained, incurred in successfully
enforcing the other party's obligations under this Lease. All
obligations under this Section 26.5 will survive the expiration or
early termination of the Term.
26.6 Building Planning.
[INTENTIONALLY DELETED]
26.7 Building Name.
Tenant will not, without Landlord's consent, use Landlord's or the
Building's name, or any facsimile or reproduction of the Building, for
any purpose; except that Tenant may use the Building's name in the
address of the business to be conducted by Tenant in the Premises.
Landlord reserves the right, upon reasonable prior notice to Tenant, to
change the name or address of the Building.
26.8 Building Standard.
The phrase "Building standard" will, in all instances, mean the type,
brand and/or quality of materials Licensor designates from time to time
to be the minimum quality to be used in the Building or the exclusive
type, grade or quality of material to be used in the Building and shall
refer to the then-current standard described in Landlord's most
recently published schedule of Building standard or, if no such
schedule has been published, to the standard which commonly prevails in
and for the entire Building.
26.9 No Waiver.
No waiver of any provision of this Lease will be implied by any failure
of either party to enforce any remedy upon the violation of such
provision, even if such violation is continued or repeated
subsequently. No express waiver will affect any provision other than
the one specified in such waiver, and that only for the time and in the
manner specifically stated.
26.10 Recording; Confidentiality.
Tenant will not record this Lease, or a short form memorandum, without
Landlord's written consent and any such recording without Landlord's
written consent will be a Default. Tenant agrees to keep the Lease
terms, provisions and conditions confidential and will not disclose
them to any other person without Landlord's prior written consent.
However, Tenant may disclose Lease terms, provisions and conditions to
Tenant's accountants, attorneys, managing employees and others in
privity with Tenant, as reasonably necessary for Tenant's business
purposes, without such prior consent.
26.11 Captions.
The captions of sections are for convenience only and will not be
deemed to limit, construe, affect or alter the meaning of such
sections.
26.12 Invoices.
All bills or invoices to be given by Landlord to Tenant will be sent to
Tenant's Invoice Address. Tenant may change Tenant's Invoice Address by
notice to Landlord given according to Section 25. If Tenant fails to
give Landlord specific written notice of its objections within 60 days
after receipt of any ▇▇▇▇ or invoice from Landlord, such ▇▇▇▇ or
invoice will be deemed true and correct and Tenant may not later
question the validity of such ▇▇▇▇ or invoice or the underlying
information or computations used to determine the amount stated.
26.13 Severability.
If any provision of this Lease is declared void or unenforceable by a
final judicial or administrative order, this Lease will continue in
full force and effect, except that the void or unenforceable provision
will be deemed deleted and replaced with a provision as similar in
terms to such void or unenforceable provision as may be possible and be
valid and enforceable.
26.14 Jury Trial.
Landlord and Tenant waive trial by jury in any action, proceeding or
counterclaim brought by Landlord or Tenant against the other with
respect to any matter arising out of or in connection with this Lease,
Tenant's use and occupancy of the Premises, or the relationship of
Landlord and Tenant. However, such waiver of jury trial will not apply
to any claims for personal injury. If Landlord commences any summary or
other proceeding for non-payment of rent or recovery of possession of
the Premises, Tenant shall not interpose any counterclaim in any such
proceeding, unless failure to raise same would constitute a waiver.
26.15 Authority To Bind.
The individuals signing this Lease on behalf of Landlord and Tenant
represent and warrant that they are empowered and duly authorized to
bind Landlord or Tenant, as the case may be, to this Lease according to
its terms.
26.16 Only Landlord/Tenant Relationship.
Landlord and Tenant agree that neither any provision of this Lease nor
any act of the parties will be deemed to create any relationship
between Landlord and Tenant other than the relationship of landlord and
tenant.
26.17 Covenants Independent.
The parties intend that this Lease be construed as if the covenant
between Landlord and Tenant are independent and that the Rent will be
payable without offset, reduction or abatement for any cause except as
otherwise specifically provided in this Lease.
26.18 Governing Law.
This Lease will be governed by and construed according to the laws of
the State of Georgia.
26.19 Enforcement Of Reasonable Consent.
If a court of competent jurisdiction determines that Landlord has
unreasonably withheld or unreasonably delayed any consent or approval
that, pursuant to the terms of this Lease, is not to be unreasonably
withheld, Tenant agrees that its sole remedy shall be an action or
proceeding to enforce any such provision or for specific performance,
injunction or declaratory judgment. In the event of such a
determination, the requested consent or approval shall be deemed to
have been granted; provided, however, that Landlord shall have no
liability to Tenant for its refusal or failure to give such consent or
approval and the sole remedy for Landlord's unreasonably withholding or
delaying of consent or approval shall be as provided in this Section.
26.20 Usufruct.
Tenant has only a usufruct under this Lease which is not subject to
levy or sale, and no estate will pass from Landlord to Tenant. Tenant's
rights to use the Premises are solely contractual.
26.21 Parking
Tenant shall have the right to use, on an unassigned non-exclusive
basis, in common with the other tenants in the Building, the parking
spaces provided by Landlord for parking of Tenant's automobiles and
those of its employees and visitors, subject to the rules and
regulations now or hereafter adopted by Landlord as follows: (i) five
(5) spaces per 1,000 rentable square feet of Premises in the surface
parking lot serving the Building and (ii) two (2) spaces per 1,000
rentable square feet of Premises in "overflow" parking lot. Tenant
shall not use nor permit any of its employees, agents or visitors to
use any parking spaces in an area other than the parking area assigned
to the Building. If Landlord deems it advisable, Landlord may set aside
a part of the parking area for use as a separate area for visitors.
Landlord reserves the right to adopt any regulations necessary to
curtail unauthorized parking, including the required use of parking
permits or assigning to Tenant a specific area in which Tenant's
employees shall be required to park. Tenant agrees to take reasonable
steps to ensure that its parking shall not interfere with any other
tenant's ability to use the loading areas and generally access their
respective premises.
27. SIGNAGE.
Subject to the provisions of this Section 27 and provided that (i)
Tenant is not in default of any of the terms or conditions of this
Lease, (ii) Tenant has not (except as provided under Section 15.7)
assigned the Lease or sublet more than 25% of the Premises or otherwise
transferred all or part of its interest in the Lease or the Premises,
and (iii) Tenant, or its Permitted Transferee, is in occupancy of at
least 40,000 rentable square feet of Premises, Landlord shall grant
Tenant the nonexclusive right, at Tenant's sole cost and expense, to
install one (1) sign on the exterior parapet of the Building ("Building
Signage"). The placement, location, design, material, color, size
construction and method of installation of the Building Signage shall
be subject to Landlord's approval. Tenant shall ensure that the
Building Signage is installed in compliance with all applicable codes,
ordinances, statues, rules and regulations. Tenant shall pay all costs
with respect to creating, designing, manufacturing, installing,
cleaning, maintaining and repairing or replacing (if necessary) the
Building Signage. At the expiration or earlier termination of this
Lease, or if Tenant fails to comply with this Section 27, Tenant shall
remove the Exterior Signage and any affected area shall be restored all
at Tenant's sole cost and expense. Landlord shall be permitted to grant
to other tenants of the Building the right to install signage on or in
the Building.
28. OPTION TO EXTEND THE TERM.
Provided that Tenant has not defaulted in performing and failed to cure
any of its obligations under the Lease, and is not in default at the
time of its exercise of this option, Tenant shall have the option to
extend the Term of the Lease ("Extension Option") for one (1) five year
period only ("Extension Term ") upon all of the following conditions:
(A) Tenant shall exercise this Extension Option by written notice
to Landlord which must be received by Landlord no later than 5:00 p.m.
on the date no later than twelve (12) months prior to the Expiration
Date of the Term; and
(B) Within thirty (30) days after the date of Tenant's notice
Landlord shall compute the "Extension Rate" which shall be Market Rent
as provided below and notify Tenant in writing of the resulting amount
("Determination Date"). All other terms of this Lease (excluding this
Extension Option and any Landlord's Work and Allowances) shall apply
during the Extension Term.
(C) If Landlord and Tenant shall fail to agree upon the Market
Rent within sixty (60) days after the Determination Date, then Landlord
and Tenant each shall give notice to the other setting forth their
respective determination of the Market Rent (the "Determination
Notice"). Subject to the provisions of Section (D) below, the parties
shall then apply to the American Arbitration Association or any
successor thereto for the designation of an arbitrator satisfactory to
both parties to render a final determination of the Market Rent. The
arbitrator shall be a real estate appraiser or consultant who shall
have at least fifteen (15) years continuous experience in the business
of appraising or is knowledgeable in rental rates and lease
transactions in the Building and in the Northwest submarket of Atlanta,
Georgia. The arbitrator shall conduct such hearings and investigations
as the arbitrator shall deem appropriate and shall, within thirty (30)
days after having been appointed, choose one of the determinations set
forth in either Landlord's or Tenant's Determination Notice, and that
choice by the arbitrator shall be binding upon Landlord and Tenant.
Each party shall pay its own counsel fees and expenses, if any, in
connection with any arbitration under this Section (C), and the parties
shall share equally all other expenses and fees of any such
arbitration. The determination rendered in accordance with the
provisions of this subsection (C) shall be final and binding in fixing
the Market Rent. The arbitrator shall not have the power to add to,
modify, or change any of the provisions of this Lease.
(D) In the event that the determination of the Market Rent set
forth in the Landlord's and Tenant's Determination Notices shall differ
by less than five (5%) percent per rentable square foot per annum for
each year during the Extension Term, then the Market Rent shall not be
determined by arbitration, but shall instead be set by taking the
average of the determinations set forth in Landlord's and Tenant's
Determination Notices. Only if the determinations set forth in
Landlord's and Tenant's Determination Notices shall differ by more than
five (5%) percent per rentable square foot per annum for any year
during the Extension Term shall the actual determination of Market Rent
be made by an arbitrator as set forth in subsection (C) above.
(E) If for any reason the Market Rent shall not have been
determined prior to the commencement of the Extension Term, then, until
the Market Rent and, accordingly, the fixed annual rent, shall not have
been finally determined, the fixed annual rent shall remain the same as
payable during the last year of the Initial Term of the Lease. Upon
final determination of the Market Rent, an appropriate adjustment to
the fixed annual rent shall be made reflecting such final
determination, and Landlord and Tenant, as the case may be, shall
promptly refund or pay to the other any overpayment or deficiency, as
the case may be, in the payment of fixed annual rent from the
commencement of the Extension Term to the date of such final
determination.
(F) "Market Rent" shall mean the market annual Base Rent and
Additional Rent for the Premises, based on tenancies (for a term
comparable to the time period in question) covering office/warehouse
space of comparable size and quality to the Premises in comparable
buildings in comparable locations in the Northwest sub-market of
Atlanta, Georgia, including the Building, assuming Landlord and Tenant
to be prudent persons willing to lease but being under no compulsion to
do so and taking into account all pertinent factors including, but not
limited to, Tenant's credit worthiness, relative Base Year or expense
stop provisions, the involvement or non-involvement of a broker, the
value and savings realized by Tenant by remaining in the Premises,
including, without limitation, the savings realized by Tenant avoiding
moving costs, the value of Tenant utilizing the existing Tenant
leasehold improvements and the costs associated with Tenant's business
interruption. By the above reference to the absence of a compulsion to
enter into a tenancy, Landlord and Tenant do not intend to exclude
renewal tenancies arising out of a tenant's exercise of a fixed option
to extend its lease term.
(G) Time is of the essence of this Extension Option. This
Extension Option applies only to an extension of the Lease for the 1st
Extension Term only. Except for the above modifications, all other
provisions and conditions of the Lease shall apply in the 1st Extension
Term. This Extension Option shall be void if Tenant fails to exercise
it precisely according to each and all of the conditions stated above,
or if Tenant assigns the Lease or sublets the Premises or otherwise
transfers all or part of its interest in the Lease or the Premises,
except as allowed under Section 15.7 of the Lease.
29. EXPANSION OPTION.
Provided that Tenant has not defaulted in performing and failed to cure
any of its obligations under the Lease, and is not in default at the
time of its exercise of this option, Tenant shall have the option to
expand ("Expansion Option") into that area measuring 9,877 rentable
square feet and known as Suite 262 on the 2nd Floor of the Building (as
more particularly described and attached hereto as Exhibit ▇-▇, ▇▇▇
"▇▇▇▇▇▇▇▇▇ ▇▇▇▇ # ▇"), ▇▇▇▇ all of the following conditions:
(A) Tenant shall exercise this Expansion Option by written notice
which must be received by Landlord no later than 5:00 p.m. on June 30,
2003 ("Expansion Deadline");
(B) The Lease Term for Expansion Area # 1 shall commence no later
than sixty (60) days following Landlord's receipt of Tenant's notice
("Expansion Area # 1 Commencement Date") and shall expire on the
Expiration Date;
(C) The per square foot Base Rent for Expansion Area # 1 shall be
the then-current per foot Base Rent payable by Tenant for the initial
Premises;
(D) Additional Rent shall be calculated pursuant to Section 4 of
this Lease as follows: the Base Year shall be Landlord's calendar year
ending December 31, 2002; and Tenant's Share shall be proportionately
increased to reflect the addition of Expansion Area # 1;
(E) The terms and conditions of Exhibit B shall apply to the
construction of Expansion Area # 1 except that the Landlord's Tenant
Improvement Allowance shall be proportionately reduced by multiplying
it by a fraction, the denominator of which shall be the total number of
months in the Lease Term and the numerator of which shall be the
remaining months in the Lease Term from and after the Expansion Area 1
Commencement Date;
(F) Landlord hereby agrees that it shall not lease Expansion Area
# 1 to any third party prior to July 1, 2003. In the event Tenant fails
to exercise its Expansion Option pursuant to the terms and conditions
described herein before such date, Expansion Area # 1 shall become part
of the Offer Area described in Section 30 below and shall be subject to
the terms and conditions contained therein; and
(G) Time is of the essence of this Expansion Option.
Except as to the above modifications, all other provisions of this
Lease shall apply to Expansion Area # 1. This Expansion Option applies
to Tenant only and shall be void if Tenant fails to exercise it
precisely according to each and all of the conditions stated above, or
if Tenant assigns the Lease or sublets the Premises or otherwise
transfers all or part of its interest in the Lease of the Premises
except as allowed under Section 15.7 herein.
30. Right of First Offer.
Provided that Tenant has not defaulted beyond any applicable cure
periods, and, providing Tenant is not in default under the Lease at the
time of its exercise of this First Offer Right, Landlord hereby grants
to Tenant the on-going option to lease, upon the terms and conditions
hereinafter set forth, all or a portion of (i) Suite 142 located on the
1st Floor of the Building measuring 13,063 rentable square feet (as
more particularly described and attached hereto as Exhibit ▇-▇,
"▇▇▇▇▇▇▇▇▇ ▇▇▇▇ # ▇") and (ii) subject to Tenant's exercise of the
Expansion Option described in Section 29 above, all or a portion of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ # ▇ (▇▇▇▇▇▇▇▇▇ ▇▇▇▇ # ▇ and Expansion Area # 2 shall be
collectively referred to herein as the "Offer Area") when it becomes
"available for leasing" (as determined in accordance with subsection
(A) below) during the initial Term of the Lease ("First Offer Right").
(A) The Offer Area shall be deemed to be "available for
leasing" upon, and only upon, the occurrence of one of the
following events:
(i) the Offer Area is not the subject of an Existing
Lease (as hereinafter defined);
(ii) if the Offer Area is subject to a right or
option granted in an Existing Lease (whether to
extend/renew or to expand), all of which rights or
options are not exercised, the expiration of the last
of such unexercised right or option; and
(iii) if the Offer Area is subject to a right or
option granted in an Existing Lease, which right or
option is exercised, the expiration or termination of
the term of such Existing Lease or any later date
upon which the term of the demise of such portion of
the Offer Area created by the exercise of such right
or option expires (including any renewals or
extensions thereof granted in such Existing Lease).
(B) During the initial Term of the Lease, prior to Landlord's
leasing the Offer Area to a party other than a tenant leasing
premises in the Offer Area as of the date hereof, Landlord
shall give Tenant a written notice (the "Offer Notice")
setting forth the availability date (the "Offer Area
Availability Date"). The Offer Area Availability Date shall
not be less than sixty (60) days after the date such notice is
given by Landlord. The Base and Additional Rent for Offer Area
shall be Market Rent as determined in Section 28 above and the
Offer Area shall be delivered in "as-is" condition;
(C) Tenant's right to lease the Offer Area on the terms
described in the applicable Offer Notice shall be exercisable
by written notice from Tenant to Landlord given not later than
five (5) business days after the Offer Notice is delivered.
Tenant shall be deemed to have declined a lease for the Offer
Area if its acceptance is delayed or if the acceptance changes
any term or condition of the Offer Notice. If such right is
not so exercised, then at such time Tenant's First Offer Right
for that portion of the Offer Area shall be null and void and
of no further force or effect and Landlord shall have the
right to lease that portion of the Offer Area or any portion
thereof to a third party on the same or any other terms and
conditions, whether or not such terms and conditions are more
or less favorable than those offered to Tenant;
(D) If Tenant has validly exercised this First Offer Right for
any portion of the Offer Area in accordance with the terms
hereof, Landlord and Tenant, within fifteen (15) business days
after request by either party hereto, shall enter into a
written amendment to this Lease confirming the terms,
conditions and provisions applicable to such portion of the
Offer Area as determined in accordance herewith;
(E) The Lease Term for the Offer Area shall commence sixty
(60) days after Landlord's delivery of Offer Area ("Offer Area
Commencement Date") and shall expire on the Expiration Date;
(F) As used herein, the term "Existing Lease" shall mean (i) a
lease (other than this Lease) of any space in the Building in
effect as of the date hereof (including extensions and
renewals thereof pursuant to options granted therein or
otherwise), whether or not the term of such lease has yet
commenced and (ii) any lease in effect as of the date of the
commencement of the initial Term of the Lease, whether or not
the term of such lease has then commenced. In the event two
leases are in effect for any portion of the Offer Area (for
example, the term of a lease which is now in effect for a
portion of the Offer Area will soon expire, and another lease
covering part or all of such space has already been executed
with a new tenant for a term commencing after the expiration
of the term of the former lease), only one of such leases
shall be an Existing Lease. In such case, the Existing Lease
shall be determined by comparing the dates upon which the
respective terms of such two leases end, and the lease with
the later expiration date shall be deemed to be the Existing
Lease and the other lease shall be disregarded;
(G) Time is of the essence of this First Offer Right; and
(H) If Tenant leases any portion of the Offer Area under this
First Offer Right, Tenant shall have the right to extend the
term of the Lease for that portion of the Offer Area upon the
same terms and conditions in Section 28 above;
This First Offer Right applies to Tenant only and shall be void if
Tenant fails to exercise it precisely according to each and all of the
conditions stated above, or if Tenant assigns the Lease or sublets the
Premises or otherwise transfers all or part of its interest in the
Lease or the Premises, except as allowed under Section 15.7 of the
Lease.
31. RIGHT OF REFUSAL
Subject to the condition described in subsection 31(F) below and with
the exception of Expansion Area #1 and Expansion Area #2, Landlord
shall grant to Tenant the on-going right of refusal ("Refusal Right")
with respect to the remaining space in the Building ("Refusal Space")
during the initial Term of the Lease upon all of the following
conditions:
(A) Tenant shall not at the time of exercising this Refusal
Right, or at any time up to the commencement of the term for the
Refusal Space, be in default of this Lease beyond the expiration of any
applicable notice and cure period;
(B) If Landlord desires to lease all or a portion of the
Refusal Space to a bona fide third party, Landlord shall notify Tenant
of such fact and shall submit to Tenant a proposal for lease of the
applicable portion of the Refusal Space containing the terms which
Landlord is willing to lease said portion of the Refusal Space to such
bona fide third party, with all other terms remaining the same as under
this Lease. Tenant shall have five (5) business days after the date
Landlord submits said proposal to accept the proposal in writing for
the Refusal Space. Tenant shall be deemed to have declined a lease for
the Refusal Space if its acceptance is delayed or if the acceptance
changes any term or condition of Landlord's proposal. In addition to
the foregoing, if the term offered to such bona fide party extends
beyond the expiration of the initial Term, Tenant shall lease the
Refusal Space for such extended term; however, if there are less than
twenty-four (24) months remaining with respect to the initial Term,
Tenant's right to exercise this Refusal Right shall be expressly
conditioned upon Tenant exercising its Renewal Option described in
Section 28 above with respect to the entire Premises;
(C) If Tenant fails to accept Landlord's proposal for the
Refusal within the five (5) business day period, then, for the
following one hundred eighty (180) days, Landlord shall have the right
to Lease said portion of the Refusal Space to a third party on
materially the same terms as those offered to Tenant. If Tenant accepts
the proposal then the parties shall promptly enter into a lease
amendment reflecting the terms of same. If Tenant accepts the proposal
then the parties shall promptly enter into a lease amendment reflecting
the terms of same;
(D) If Tenant leases all or a portion of the Refusal Space
under this Refusal Right, Tenant shall have the right to extend the
term of the Lease for the Refusal Space upon the same terms and
conditions set forth in Section 28 above;
(E) If Tenant leases all or a portion of the Refusal Space
under this Refusal Right, Tenant's Share shall be proportionately
increased;
(F) Notwithstanding anything herein provided to the contrary
and only to the extent such third-party refusal right conflicts with
Tenant's Refusal Right, Tenant's Refusal Right shall be expressly
subject to a first right of refusal held by a third party tenant,
Travelers Bank & Trust FSB ("Travelers"). Therefore, this Refusal
Right, if such conflict arises, shall be expressly contingent upon
Travelers' failure to exercise its option with respect to all or a
portion of the Refusal Space;
(G) Time is of the essence of this Refusal Right.
This Refusal Right applies to Tenant only and shall be void if Tenant
fails to exercise it precisely according to each and all of the
conditions stated above, or if Tenant assigns the Lease or sublets the
Premises or otherwise transfers all or part of its interest in the
Lease or the Premises, except as allowed under Section 15.7 of the
Lease.
32. EQUIPMENT
In consideration of Tenant's execution of this Lease, Landlord hereby
agrees to transfer to Tenant Landlord's ownership interest in the
following equipment ("Equipment") which was previously located in
Landlord's ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ property:
Chillers: Three 20-ton Liebert units (two units are 1999 models
(#FE240GVAAE1-Glycol) and the third unit is a 1997
model (#FH265G-ASM-Glycol))
Fire Suppression System: Pullboxes and FM200 tanks
Power Distribution Units: 3 are available
Raised Floor: Approximately 1,500 square feet shall be provided
Tenant shall be responsible for the cost of relocating any Equipment
that has not already been relocated from its existing location to the
Premises as well as any installation costs. In addition to the
foregoing, Tenant shall be responsible for maintaining and repairing
said Equipment during the Term or any renewal thereof.
Having read and intending to be bound by the terms and provisions of
this Lease, Landlord and Tenant have signed it as of the Date.
TENANT: LANDLORD:
MATRIA HEALTHCARE, INC., a TRIZEC REALTY, INC, a California
Delaware corporation corporation
By:____________________________ By:______________________________
Printed Name:__________________ Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:_________________________ Title: Assistant Secretary
And By:________________________ And By:__________________________
Printed Name:__________________ Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:_________________________ Title: Vice President
STATE OF _______________________)
) .ss.
COUNTY OF_______________________)
This Lease Agreement was acknowledged before me this _______ day of
____________, 20___
by___________________________________________as_______________________________
and__________________________________________as_______________________________of
_____________________.
WITNESS my hand and official seal.
-------------------------------
Notary Public
My commission expires: _________________________________.
STATE OF GEORGIA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
This Lease Agreement was acknowledged before me this ___________day of
_______________, 20__ by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Assistant Secretary of Trizec
Realty, Inc.
WITNESS my hand and official seal.
-------------------------------
Notary Public
My commission expires: ________________________________.
STATE OF ILLINOIS )
) ss.
COUNTY OF ▇▇▇▇ )
This Lease Agreement was acknowledged before me this ___________day of
_______________, 20__ by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as Vice President of Trizec Realty,
Inc.
WITNESS my hand and official seal.
-------------------------------
Notary Public
My commission expires: ________________________________.
SCHEDULE 1
LAND
All that tract or parcel of land lying and being in land lot 713 of the 17th
District, 2nd Section, ▇▇▇▇ County, Georgia, as shown by plat of survey by
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, Inc., dated January 11, 1983 and being more
particularly described as follows:
Beginning at an iron pin located at the intersection of land lots 655, 656, 713,
and ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; thence S 88' 371 33'
E, along the northerly land lot line of land ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ and Section
for a distance of 357.2.Sfeet to the True Point of Beginning; thence S 88* 371
33' E along same land lot line a distance of 621.21 feet to & Point located an
the westerly right of way of Franklin Road; thence &long the westerly
right-of-way of Franklin Road as follows: thence S 41* 511 53' W, 96-20 feet to
a point; thence S 42' 151 34" W, 307.91 feet to a point; thence S W 58' 30" W,
211-25 feet to a point; chance S W 28' 58' W, 196 . 20 feet to a point; thence S
W 151 36- W, 78.17 feet to a point, said point being on the northern
right-of-way of Newmarket Parkway, NJ; thence Along said northern right-of-way
as follows; thence S 66* 31' 120 W, 79.41 feet to a point; thence N 43* 271 43"
W, 160-00 feet to a Point; thence N 48* 241 40" W, 63-77 feet to a point; thence
along an arc 184.46 feet; thence departing from said northern right-of-way N 00*
16' 010 E, 358,.42 feet to a point, said point being located an the southerly
right-of-way of Newmarket Parkway; thence along said southerly right-of-way as
follows; thence along an arc 43.97 feet** thence S 87* 42, 57 E, 104.22 to a
point; thence along an arc 237.55 feet and the True Point of Beginning. Said
tract contains 9.117 acres.
*said arc chord bearing N 57*11'35" W for a distance of 182.70 feet to a point;
**said arc chord bearing N 88050102" E for a distance of 43.94 feet to a point;
and ***said arc chord bearing N 66001140" E for a distance of 229.32 feet to a
point.
EXHIBIT A
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
PLAN DELINEATING THE PREMISES
1
EXHIBIT A-1
EXPANSION AREA #1
EXHIBIT ▇-▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇
▇▇▇▇▇▇▇ ▇
POSSESSION AND LEASEHOLD IMPROVEMENTS AGREEMENT
1. Conflicts; Terms. If there is any conflict or inconsistency
between the provision of the Lease and those of this Exhibit B ("Work
Letter"), the provisions of this Work Letter will control. Except for
those terms expressly defined in this Work Letter, all initially
capitalized terms will have the meanings stated for such terms in the
Lease. The following terms, which are not defined in the Lease, have
the meanings indicated:
(a) "Landlord's Representative" means Mr. ▇▇▇▇▇ ▇▇▇▇▇▇.
(b) "Tenant's Representative" means ____________________________.
(c) "Submission Date" means at least 30 days prior to the start of
construction, but no later than the date of Tenant's execution of
the Lease.
(d) "Landlord's Allowance" means $20.00 per rentable square foot
of Premises.
(e) "Leasehold Improvements" means all alterations, improvements
and installations to be constructed or installed by Landlord for
Tenant in the Premises according to this Work Letter.
(f) "Preliminary Plans" means space plans and general
specifications for the Leasehold Improvements.
(g) "Construction Documents" means complete construction plans
and specifications for the Leasehold Improvements.
(h) "Total Cost" means the total cost of preparing the Preliminary
Plans and Construction Documents, obtaining all necessary permits,
constructing and installing the Leasehold Improvements in the
Premises (including any Additional Tenant Work), and providing any
Building services required during construction (such as
electricity and other utilities, refuse removal and housekeeping),
plus the Construction Administration Fee to compensate Landlord
for its construction administration services which will include
providing Landlord's personnel to coordinate the design and
construction process, assist in obtaining any approvals required
from Landlord and any governmental agencies, and assist in
scheduling deliveries.
2. Landlord's Obligations. Landlord will proceed to complete the Premises
according to this Work Letter and tender possession of the Premises to
Tenant when the Leasehold Improvements have been completed to the
extent that only minor construction details, which would not
materially interfere with Tenant's use and enjoyment of the Premises,
require completion or correction ("Substantial Completion"). Tenant
will accept the Premises when Landlord tenders possession, provided
that the Leasehold Improvements have been substantially completed as
described above, and provided further that Tenant will not be required
to accept possession prior to the Scheduled Commencement Date.
Landlord and Tenant agree that all alterations, improvements and
additions made to the Premises according to this Work Letter, whether
paid for by Landlord or Tenant, will, without compensation to Tenant,
become Landlord's property upon installation and will remain
Landlord's property at the expiration or earlier termination of the
Term.
3. Punch List. Tenant's taking possession of any portion of the
Premises will be conclusive evidence that such portion of the Premises
was in good order and satisfactory condition when Tenant took
possession, except as to any patent defects identified on a punch list
prepared and signed by Landlord's Representative and Tenant's
Representative after an inspection of the Premises by both such parties
when Tenant takes possession, and except as to any latent defects of
which Tenant notifies Landlord in writing within one year after the
Commencement Date. Failure to advise Landlord in writing within one
year of the Commencement Date of any latent defects shall result in a
waiver of any claims regarding said defects by Tenant unless said
defects could not be reasonably discovered within said year. Landlord
will not be responsible for any items of damage caused by Tenant, its
agents, independent contractors or suppliers. No promises to alter,
remodel or improve the Premises or Building and no representations
concerning the condition of the Premises or Building have been made by
Landlord to Tenant other than as may be expressly stated in the Lease
(including this Work Letter).
4. Representatives. Landlord appoints Landlord's Representative to
act for Landlord in all matters covered by this Work Letter. Tenant
appoints Tenant's Representative to act for Tenant in all matters
covered by this Work Letter. All inquiries, requests, instructions,
authorizations and other communications concerning the matters covered
by this Work Letter will be made to Landlord's Representative or
Tenant's Representative, as the case may be. Tenant will not make any
inquiries of or request to, and will not give any instructions or
authorizations to, any other employee or agent of Landlord, including
Landlord's architect, engineers and contractors or any of their agents
or employees, about matters covered by this Work Letter. Either party
may change its Representative under this Work Letter at any time by 3
days' prior written notice to the other party.
5. Preliminary Plans. On or before the Submission Date, Tenant
will cooperate with Landlord and submit all information necessary for
preparation of the Preliminary Plans ("Design Information"). Each day
after the Submission Date until Tenant has provided all Design
Information will be a day of Tenant's delay. Promptly after receipt of
all Design Information, Landlord will cause its architect to prepare
the Preliminary Plans based on the submitted Design Information and
shall submit same to Tenant for review. Tenant shall have 5 business
days to review the proposed Preliminary Plans and either approve same
or deliver to Landlord a notice containing Tenant's objections to same
set forth in reasonable detail. Each day after said 5 business day
period until Tenant either approves the proposed Preliminary or
delivers notice of objections will be a day of Tenant's delay. Promptly
upon receipt of any objection from tenant, Landlord will cause its
architect to prepare the Preliminary Plans based on the submitted
Design Information, Landlord will cause its architect to prepare
revised Preliminary Plans according to such notice and submit the
revised Preliminary Plans to Tenant. Upon submittal to Tenant of the
revised Preliminary Plans, and upon submittal of any further revisions,
the procedures described above will be repeated. if the revised
Preliminary Plans, or any further revisions, are consistent with the
Design information and all requirements identified in Tenant's prior
notice(s) of objections, then each day following Landlord's receipt of
Tenant's notice of any additional objections until the day on which
Landlord receives Tenant's written approval of the Preliminary Plans
will be a day of Tenant's delay. Tenant represents to Landlord that
Tenant has furnished to Landlord and the party preparing the
Construction Documents all information necessary such that (following
construction of the Leasehold Improvements in accordance with the
Construction Documents) Tenant, the Premises and the Leasehold
Improvements will be in compliance with the Americans With Disabilities
Act of 1990, 42 U.S.C. ss.ss.12101-12213 and any state disability or
handicapper's acts (collectively "Disability Acts"). TENANT SHALL BE
RESPONSIBLE FOR AND SHALL INDEMNIFY AND HOLD HARMLESS LANDLORD FROM AND
AGAINST ANY AND ALL CLAIMS, LIABILITIES AND EXPENSES (INCLUDING,
WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES AND EXPENSES) INCURRED BY
OR ASSERTED AGAINST LANDLORD BY REASON OF OR IN CONNECTION WITH ANY
VIOLATION OF THE DISABILITY ACTS ARISING FROM OR OUT OF (x) information
or design and space plans furnished to Landlord by Tenant (or the lack
of complete and accurate information so furnished) concerning the
Leasehold Improvements, (y) Tenant's employer-employee obligations, or
(z) after the Commencement Date, violations by Tenant and/or the
Leasehold Improvements or the Premises not being in compliance with the
Disability Acts as the result of changes in regulations or law or
interpretations thereof not in effect on the Commencement Date. The
foregoing indemnity shall not include any claims, liabilities or
expenses (including reasonable attorneys' fees and expenses) arising
out of the negligence or gross negligence of Landlord or Landlord's
employees, agents or contractors. Without limiting the foregoing, if
Landlord constructs the Leasehold Improvements based on any special
requirements or improvements required by Tenant, or upon information
furnished by Tenant that later proves to be inaccurate or incomplete
resulting in any violation of the Disability Acts, Tenant shall be
solely liable to correct such violations and to bring the improvements
into compliance with the Disability Acts as promptly as is practicable.
6. Cost Estimate. At such time as Preliminary Plans that have been
approved in writing by both Landlord and Tenant have been prepared,
Landlord will obtain, and notify Tenant of, an estimate of the Total
Cost based on the approved Preliminary Plans ("Cost Estimate"). If the
Cost Estimate is less than or equal to Landlord's Allowance, then
Tenant will be deemed to have approved the Cost Estimate. If the
original Cost Estimate is greater than Landlord's Allowance, then
Tenant, at Tenant's option, may either approve the Cost Estimate in
writing or may elect to eliminate or revise one or more items shown on
the Preliminary Plans so as to reduce the Cost Estimate and then
approve in writing the reduced Cost Estimate, however, each day
following the 5th business day after Tenant's receipt of the original
Cost Estimate until the day Landlord receives Tenant's written approval
of the Cost Estimate (as the same may have been revised) will be a day
of Tenant's delay. If Tenant has failed to approve any cost estimate
within 30 days of receipt of the original Cost Estimate, then Landlord
shall have the option to deem the last revised Cost Estimate to be
approved or shall have the right to terminate the Lease upon written
notice to Tenant.
7. Construction Documents; Cost Proposal. At such time as the Cost
Estimate has been approved (or deemed approved) by Tenant, Landlord
will cause its architect and engineer to prepare the Construction
Documents based strictly on the Preliminary Plans. The Construction
Documents will be subject to Landlord's approval and Tenant will be
given an opportunity to review the Construction Documents to confirm
that they conform to the Preliminary Plans. At such time as the
Construction Documents have been so approved, reviewed and confirmed,
Landlord will obtain bids for the construction or installation of the
Leasehold Improvements according to the Construction Documents and will
notify Tenant of the proposed Total Cost based on the lowest of such
bids ("Cost Proposal"). If the Cost Proposal is less than or equal to
the Cost Estimate approved by Tenant, then Tenant, at Tenant's option,
will be deemed to have approved the Cost Proposal. If the original Cost
Proposal is greater than the Cost Estimate approved by Tenant then
Tenant, at Tenant's option may either approve the Cost Proposal in
writing or elect to eliminate or revise one or more items shown on the
Construction Documents so as to reduce the Cost Proposal and then
approve in writing the reduced Cost Proposal (based on the revised
Construction Documents). If the Cost Proposal approved or deemed
approved by Tenant is greater than Landlord's Allowance, then Tenant
will immediately deposit with Landlord an amount ("Construction
Deposit") equal to one-half of the difference between Landlord's
Allowance and the approved Cost Proposal. Each day following the 5th
business day after Tenant's receipt of the Cost Proposal until the day
on which Landlord has received Tenant's written approval of the Cost
Proposal (if required) and Landlord has received the Construction
Deposit (if required) will be a day of Tenant's delay. If Tenant has
failed to approve any Cost Proposal within 30 days of receipt of the
original Cost Proposal, then Landlord shall deem the last revised Cost
Proposal to be approved.
8. Construction of Leasehold Improvements. At such time as Tenant
has approved (or is deemed to have approved) the Cost Proposal and has
made any required Construction Deposit, Landlord will cause the
Leasehold Improvements to be constructed or installed in the Premises
in a good and workmanlike manner and according to the Construction
Documents and all applicable Laws. Upon Substantial Completion of the
construction and installation of the Leasehold Improvements and prior
to Tenant's occupancy of the Premises, Tenant will pay to Landlord the
amount, if any, by which the Total Cost exceeds the sum of the
Landlord's Allowance and the Construction Deposit. If Landlord's
Allowance exceeds the Total Cost, any unused portion of the Allowance
shall be applied towards Tenant's initial Rent payments.
9. Change Orders. Tenant's Representative may authorize changes in
the work during construction only by written instructions to Landlord's
Representative on a form approved by Landlord. All such changes will be
subject to Landlord's prior written approval according to Paragraph 11
below. Prior to commencing any change, Landlord will prepare and
deliver to Tenant, for Tenant's approval, a change order ("Change
Order") identifying the total cost of such change, which will include
associated architectural, engineering and construction contractor's
fees, and an amount sufficient to reimburse Landlord for overhead and
related expenses incurred in connection with the Change Order. If
Tenant fails to approve such Change Order within 5 business days after
delivery by Landlord, Tenant will be deemed to have withdrawn the
proposed change and Landlord will not proceed to perform the change.
Upon Landlord's receipt of Tenant's approval, Landlord will proceed to
perform the change. Tenant will pay the total cost of any Change Orders
within 10 days of their approval of same.
10. Additional Tenant Work. If Tenant desires any work in addition
to the Leasehold Improvements as set forth in the Construction
Documents to be performed in the Premises ("Additional Tenant Work"),
Tenant, at Tenant's expense, will cause plans and specifications for
such work to be prepared either by Landlord's architect or engineer or,
at Landlord's discretion, by consultants of Tenant's own selection. All
plans and specifications for Additional Tenant Work will be subject to
Landlord's approval according to Paragraph 11 below. If Landlord
approves Tenant's plans and specifications for any Additional Tenant
Work, Landlord will, subject to the following terms and conditions,
perform said Additional Tenant Work pursuant to the terms of this
Exhibit B. Tenant shall pay to Landlord the total cost of any
Additional Tenant Work (including the Construction Administration Fee)
within 10 days of receipt of Landlord's invoice for same.
11. Landlord's Approval. All Preliminary Plans, Construction
Documents and Change Orders; and any drawings, space plans, plans and
specifications for any Additional Tenant Work or any other improvements
or installations in the Premises, are expressly subject to Landlord's
prior written approval, which, subject to the following conditions,
shall not be unreasonably withheld or delayed. Landlord may withhold
its approval of any such items that require work which:
(a) exceeds or adversely affects the capacity or integrity of the
Building's structure or any of its heating, ventilating, air
conditioning, plumbing, mechanical, electrical, communications or
other systems;
(b) is not approved by the holder of any Encumbrance;
(c) would not be approved by a prudent owner of property similar
to the Building;
(d) violates any agreement which affects the Building or binds
Landlord;
(e) Landlord reasonably believes will increase the cost of
operating or maintaining any of the Building's systems;
(f) Landlord reasonably believes will reduce the market value of
the Premises or the Building at the end of the Term;
(g) does not conform to applicable building code or is not
approved by any governmental authority having jurisdiction
over the Premises;
(h) does not meet or exceed Building standard; or
(i) Landlord reasonably believes will infringe on the
architectural or historical integrity of the Building.
12. Tenant's Delays. As provided in Section 3.3 of the Lease, the
Term of the Lease (and therefore Tenant's obligation for the payment of
Rent) will not commence until Landlord has substantially completed all
work to be performed by Landlord as stated in Paragraph 8 above;
provided, however, that if Landlord is delayed in Substantially
Completing such work, or in obtaining a certificate of occupancy, if
required by the applicable governmental authority, as a result of:
(a) any Tenant delays described in Paragraphs 5, 6 or 7 above;
(b) Tenant's request for materials or installations as a part of
the Leasehold Improvements that are other than Building standard
materials or installations that take longer to process or install
than Building Standard materials or installation;
(c) any Change Orders or changes in any drawings, plans or
specifications requested by Tenant;
(d) Tenant's failure to review, confirm or approve in a timely
manner any item requiring Tenant's review, confirmation
or approval;
(e) performance of any Additional Tenant Work or any failure to
complete or delay in completion of such work; or
(f) any other act or omission of Tenant or Tenant's architects,
engineers, contractors or subcontractors (all of which will be
deemed to be delays caused by Tenant),
then the Commencement Date will only be extended under Section 3.3 of
the Lease until the date on which Landlord would have substantially
completed the performance of such work but for such delays.
13. General. No approval by Landlord or Landlord's architect or
engineer of any drawings, plans or specifications which are prepared in
connection with construction of improvements in the Premises will
constitute a representation or warranty by Landlord as to the adequacy
or sufficiency of such drawings, plans or specifications, or the
improvements to which they relate, for any use, purpose or condition,
but such approval will merely be the consent of Landlord to the
construction or installation of improvements in the Premises according
to such drawings, plans or specifications. Failure by Tenant to pay any
amounts due under this Work Letter will have the same effect as failure
to pay Rent under the Lease, and such failure or Tenant's failure to
perform any of its other obligations under this Work Letter will
constitute a Default under Section 20.1 of the Lease, entitling
Landlord to all of its remedies under the Lease as well as all remedies
otherwise available to Landlord.
14. Landlord's Work. Landlord shall, at Landlord's sole cost and
expense perform the following: (i) replace and raise the ceiling grid
currently located in the Premises to a height of ten (10) feet and add
drywall as necessary to accommodate the new ceiling height; (ii)
relocate the current HVAC chase to a location that is adjacent to the
break room which will occupy a portion of "open area 239" as shown on
plans dated July 19, 2002; (iii) close up the skylight in the Premises;
(iv) windbracing shall be removed and relocated per engineering
drawings by Landlord; and (v) Landlord warrants and represents that,
because there is no windbracing in the existing support wall beside the
restrooms, Tenant may create two (2) openings in said wall per the
drawing prepared by Design Management dated 8/28/02. Any tile
installation, lighting, insulation modification, mechanical work or
other alterations required as a result of the replacement and
relocation of the ceiling grid shall be paid for out of Landlord's
Allowance.
EXHIBIT C
2161 NEWMARKET BUILDING
OCCUPANCY ESTOPPEL CERTIFICATE
THIS OCCUPANCY ESTOPPEL CERTIFICATE ("Certificate") is given by MATRIA
HEALTHCARE, INC. ("Tenant") to TRIZEC REALTY, INC. ("Landlord"), with
respect to that certain Lease Agreement dated ____________________, 20
___ ("Lease"), under which Tenant has leased from Landlord certain
premises known as Suite 233 ("Premises") in the 2161 Newmarket Office
Building ("Building").
In consideration of the mutual covenants and agreements stated in the
Lease, and intending that this Certificate may be relied upon by
Landlord and any prospective purchaser or present or prospective
mortgagee, deed of trust beneficiary or ground lessor of all or a
portion of the Building, Tenant certifies as follows:
1. Except for those terms expressly defined in this Certificate,
all initially capitalized terms will have the meanings stated for
such terms in the Lease.
2. Landlord first delivered possession of the Premises to Tenant
(either for occupancy by Tenant or for the commencement of
construction by Tenant) on _______________, 20 ____.
3. Tenant moved into the Premises (or otherwise first occupied
the Premises for Tenant's business purposes) on
____________________, 20 ____.
4. The Commencement Date occurred on _______________, 20___, and
the Expiration Date will occur on ____________________, 20 ____.
5. Tenant's obligation to make monthly payments of Rent and
Additional Rent under the Lease began (or will begin) on
__________________, 20 ____.
Executed this _______ day of ______________, 20 ___.
TENANT:
MATRIA HEALTHCARE, INC.
By:___________________________
Printed Name:__________________
Title:_________________________
Exhibit D
2161 NEWMARKET BUILDING
Rules and Regulations
1. SIGN DISPLAY
Landlord will provide at Landlord's expense signage for the Premises.
Such signage will be coordinated throughout the business park for uniformity and
attractiveness. No sign, tag, label, picture, advertisement or notice shall be
displayed distributed, inscribed, painted or affixed by Tenant on any part of
the outside of the building or of the demised Premises without prior written
consent of Landlord. In addition to the foregoing Landlord shall place, at
Tenant's sole cost and expense, the name "American Freedom Mortgage" on the
existing monument sign at the Franklin Road entrance to the Complex.
2. DRIVES AND PARKING AREAS
All parking shall be within the property boundaries and within marked
parking spaces. There should be no on-street parking and at no time shall any
tenant obstruct drives and loading areas intended for the use of all tenants.
The drives and parking areas are for the joint use of all tenants unless
specifically marked.
3. STORAGE AND LOADING AREAS
Unless specifically approved by Landlord in writing, no materials,
supplies or equipment shall be stored in any area on a site except inside the
Premises. Trash receptacles may be placed in the service areas provided that
they are placed behind a visual barrier, screening such areas from the view of
adjoining properties and/or a street.
4. LOCKS
No additional locks shall be placed on the doors of the demised
Premises by Tenant nor shall any existing locks be changed unless Landlord is
immediately furnished with two keys thereto. Landlord will, without charge,
furnish Tenant with two keys for each lock existing upon the entrance doors when
Tenant assumes possession with the understanding that at the termination of the
Lease the keys shall be returned.
5. CONTRACTORS AND SERVICE MAINTENANCE
Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service on or to the Premises for
tenants, to Landlord for Landlord's approval and supervision before performance
of any contractual service. This provision shall apply to all work performed in
the Building including installation of electrical devices and attachments and
installations of any nature affecting floors, walls, woodwork, trim, windows,
ceilings, equipment or any other physical portion of the Building.
6. LODGING
No Tenant shall at any time occupy any part of the Building as sleeping
or lodging quarters.
7. REGULATION FOR OPERATION AND USE
Tenant shall not place, install or operate on the demised Premises or
in any part of Building, any engine, stove or machinery, or conduct mechanical
operations or ▇▇▇▇ thereon or therein, or place or use in or about Premises any
explosives, gasoline, kerosene, oil, acids, caustics or any other flammable,
explosive or hazardous material without written consent of Landlord.
8. WINDOW COVERINGS
Windows facing the Building exterior shall at all times be wholly clear
and uncovered (except for such blinds or curtains or other window coverings
Landlord may provide or approve) so that a full unobstructed view of the
interior of the demised Premises may be had from the exterior of the Building.
9. MODIFICATIONS
Landlord shall have the right from time to time to modify, add or
delete these restrictive covenants at Landlord's sole discretion.
1 Notwithstanding the foregoing, with respect to the initial leasehold
improvements to be installed by Landlord in accordance with the terms and
conditions of the Possession and Leasehold Improvements Agreement attached
hereto as Exhibit B, the Construction Administration Fee shall be five percent
(5%) of the total cost of the Leasehold Improvements.