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EXHIBIT 10.30
OFFICE LEASE
BETWEEN
TRANSWESTERN LEXINGTON, LLC ("LANDLORD")
AND
FUTURELINK CORP. ("TENANT")
DATE OF LEASE: AUGUST 8, 2000
BUILDING: 360 LEXINGTON AVENUE, NEW YORK, NY
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TABLE OF CONTENTS
<TABLE>
<C> <S> <C>
1. DEFINITIONS.........................................................1
2. LEASE GRANT.........................................................4
3. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION..........................4
4. USE.................................................................4
5. BASE RENT...........................................................5
6. SECURITY DEPOSIT....................................................6
7. SERVICES TO BE FURNISHED BY LANDLORD................................7
8. LEASEHOLD IMPROVEMENTS/TENANT'S PROPERTY............................8
9. SIGNAGE.............................................................9
10. REPAIRS AND ALTERATIONS BY TENANT...................................9
11. USE OF ELECTRICAL SERVICES BY TENANT...............................11
12. ENTRY BY LANDLORD..................................................11
13. ASSIGNMENT AND SUBLETTING..........................................12
14. MECHANIC'S LIENS...................................................13
15. INSURANCE..........................................................14
16. INDEMNITY..........................................................15
17. DAMAGES FROM CERTAIN CAUSES........................................16
18. CASUALTY DAMAGE....................................................16
19. CONDEMNATION.......................................................17
20. HAZARDOUS SUBSTANCES...............................................17
21. AMERICANS WITH DISABILITIES ACT....................................18
22. EVENTS OF DEFAULT..................................................18
23. REMEDIES...........................................................19
24. NO WAIVER..........................................................23
25. PEACEFUL ENJOYMENT.................................................23
26. [RESERVED.]........................................................23
27. HOLDING OVER.......................................................23
28. SUBORDINATION TO MORTGAGE/ESTOPPEL CERTIFICATE.....................24
29. NOTICE.............................................................24
30. SURRENDER OF PREMISES..............................................25
31. RIGHTS RESERVED TO LANDLORD........................................25
32. MISCELLANEOUS......................................................25
33. ENTIRE AGREEMENT...................................................27
34. LIMITATION OF LIABILITY............................................28
</TABLE>
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<TABLE>
<C> <S> <C>
EXHIBIT A - OUTLINE AND LOCATION OF PREMISES...............................A-1
EXHIBIT B - RULES AND REGULATIONS..........................................B-1
EXHIBIT C - PAYMENT OF TAXES...............................................C-1
EXHIBIT D - WORK LETTER....................................................D-1
EXHIBIT E - COMMENCEMENT LETTER............................................E-1
EXHIBIT F - PORTER'S WAGE PAYMENT..........................................F-1
EXHIBIT G - CLEANING SPECIFICATIONS........................................G-1
EXHIBIT H - CERTIFICATE OF OCCUPANCY.......................................H-1
</TABLE>
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OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "LEASE"), made and entered into on
this the 8th day of August, 2000, between TRANSWESTERN LEXINGTON, LLC, a
Delaware limited liability company ("LANDLORD") and FUTURELINK CORP., a Delaware
corporation ("TENANT").
W I T N E S S E T H:
- - - - - - - - - -
1. DEFINITIONS. The following are definitions of some of the defined terms used
in this Lease. The definition of other defined terms are found throughout this
Lease.
A. "ADDITIONAL RENT": shall mean Tenant's Pro Rata Share of Taxes
(hereinafter defined), the Porter's Wage Payment and any other sums
(exclusive of Base Rent and the Electric Inclusion Amount) that are
required to be paid to Landlord by Tenant hereunder, which sums are deemed
to be Additional Rent under this Lease. Additional Rent and Base Rent
(including the Electric Inclusion Amount) are sometimes collectively
referred to herein as "Rent."
B. The "APPROXIMATE RENTABLE AREA IN THE BUILDING" is 240,977 square feet.
The Approximate Rentable Area in the Premises as set forth herein may be
revised at Landlord's election prior to the Commencement Date if Landlord's
architect determines such estimate to be inaccurate in any material degree
after examination of the final drawings of the Premises and the Building.
C. "APPROXIMATE RENTABLE AREA IN THE PREMISES" shall mean the rentable
square feet of space comprising the Premises. For purposes of the Lease it
is agreed and stipulated by both Landlord and Tenant that the Approximate
Rentable Area in the Premises is 14,467 square feet. The amount of any
space (such amount "RENTABLE AREA") added or deleted from the Premises
after the date of this Lease shall be determined in Landlord's reasonable
discretion.
D. "BASE RENT": Base Rent (which includes the Electric Inclusion Amount
defined in Section 11) will be paid according to the following schedule,
subject to the provisions of Section 5 hereof. For the purposes of this
Section 1.D., "LEASE YEAR" shall mean the twelve (12) month period
commencing on the Commencement Date, and on each anniversary of the
Commencement Date.
<TABLE>
<CAPTION>
PERIOD ANNUAL BASE RENT MONTHLY INSTALLMENTS
OF BASE RENT
-------------------------------------------------------------------------------
<S> <C> <C>
FIRST LEASE YEAR THROUGH FIFTH $694,416.00 $57,868.00
LEASE YEAR
SIXTH LEASE YEAR THROUGH $752,284.00 $62,690.33
TERMINATION DATE
</TABLE>
The Base Rent due for the first month during the Lease Term (hereinafter
defined) shall be paid by Tenant to Landlord contemporaneously with
Tenant's execution hereof.
E. "BASE YEAR" shall have the meaning given to that term in EXHIBIT C.
F. "BROKER" shall mean, collectively, Jones Lang LaSalle Americas, Inc. and
First New York Realty Co.
G. "BUILDING" shall mean the office building at 360 Lexington Avenue,
Borough of Manhattan, City and State of New York, currently known as 360
Lexington Avenue.
H. "BUILDING MANAGER" shall mean Jones Lang LaSalle Americas, Inc. or such
other company as Landlord shall designate from time to time.
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I. "BUILDING STANDARD", shall mean the type, brand, quality and/or quantity
of materials Landlord designates from time-to-time to be the minimum
quality and/or quantity to be used in the Building or the exclusive type,
grade, quality and/or quantity of material to be used in the Building.
J. "BUSINESS DAY(S)" shall mean Mondays through Fridays exclusive of the
normal business holidays of New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day ("HOLIDAYS"). Landlord, from
time to time during the Lease Term, shall have the right to designate
additional Holidays, provided such additional Holidays are commonly
recognized as holidays by other office buildings in the area where the
Building is located.
K. "COMMENCEMENT DATE", "LEASE TERM" and "TERMINATION DATE" shall have the
meanings set forth below:
1. The "LEASE TERM" shall mean a period of ten (10) years, three (3)
months commencing on the date Landlord delivers possession of the
Premises to Tenant broom clean and free of all tenancies and
occupancies, together with an ACP-5 certificate, (the "COMMENCEMENT
DATE") and, unless sooner terminated as provided herein, ending on the
date which is ten (10) years, three (3) months thereafter (the
"TERMINATION DATE"). In no event shall the Commencement Date occur
prior to September 19, 2000. The Commencement Date, Lease Term and
Termination Date shall be set forth in a Commencement Letter attached
hereto as EXHIBIT E.
L. "COMMON AREAS" shall mean those areas located within the Building or on
the Property used for corridors, elevator foyers, mail rooms, restrooms,
mechanical rooms, elevator mechanical rooms, property management office,
janitorial closets, electrical and telephone closets, vending areas, and
lobby areas (whether at ground level or otherwise), entrances, exits,
sidewalks, and landscaped areas and other similar facilities provided for
the common use or benefit of tenants generally.
M. "DEFAULT RATE" shall mean the lower of (i) the Prime Rate plus two
percent (2%) or (ii) the Maximum Rate.
N. "MAXIMUM RATE" shall mean the highest rate of interest from time-to-time
permitted under applicable federal and state law.
O. "NORMAL BUSINESS HOURS" for the Building shall mean 8:00 a.m. to 6:00
p.m. Mondays through Fridays, exclusive of Holidays.
P. "NOTICE ADDRESSES" shall mean the following addresses for Tenant and
Landlord, respectively:
Tenant
Futurelink Corp.
360 Lexington Avenue
New York, New York 10017
With a copy to:
Richards & O'Neil, LLP
885 Third Avenue
New York, New York 10022
Attention: Andrew L. Herz, Esq.
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Landlord:
Jones Lang LaSalle Americas, Inc.
360 Lexington Avenue
New York, New York 10017
Attention: General Manager
with a copy to:
Transwestern Investment Company
150 North Wacker Drive, Suite 800
Chicago, IL 60606
Attention: Owner's Representative
Payments of Rent only shall be made payable to the order of:
Transwestern Lexington, L.L.C.
at the following address:
P.O. Box 828623
Philadelphia, PA 19182-8623
or such other name and address as Landlord shall, from time to time,
designate in writing.
Q. "PERMITTED USE" shall mean general executive and administrative office
use and ancillary related uses but no other use or purpose.
R. "PORTER'S WAGE PAYMENT" shall mean all payments to be made by Tenant
pursuant to EXHIBIT E attached hereto.
S. "PREMISES" shall mean the office space located on the seventh (7th)
floor within the Building and outlined on EXHIBIT A to this Lease.
T. "PRIME RATE" shall mean the per annum interest rate announced by and
quoted in the Wall Street Journal from time-to-time as the prime or base
rate.
U. "PROPERTY" shall mean the Building and the parcel(s) of land on which it
is located.
V. "SECURITY DEPOSIT" shall mean, subject to the provisions of Section 6,
the sum of Six Hundred Fifty One Thousand Fifteen Dollars ($651,015.00)
which may be posted in cash or by delivery of a Letter of Credit as defined
in Article 6. The Security Deposit shall be paid by Tenant to Landlord
contemporaneously with Tenant's execution hereof.
W. "SERVICE AREAS" shall mean those areas within the Building used for
stairs, elevator shafts, flues, vents, stacks, pipe shafts and other
vertical penetrations (but shall not include any such areas for the
exclusive use of a particular tenant).
X. "TAXES" shall have the meaning given to such term in EXHIBIT C.
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Y. "TENANT'S PRO RATA SHARE" shall mean six and 3/1000 percent (6.003%)
which is the quotient (expressed as a percentage), derived by dividing the
Approximate Rentable Area in the Premises by the Approximate Rentable Area
in the Building.
Z. "UNCOMMON IMPROVEMENTS" shall mean internal staircases, raised flooring,
vaults, executive bath-rooms or any other Leasehold Improvements not
commonly found in buildouts of commercial office space in midtown
Manhattan.
2. LEASE GRANT. Subject to and upon the terms herein set forth, Landlord leases
to Tenant and Tenant leases from Landlord the Premises together with the right,
in common with others, to use the Common Areas.
3. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION.
A. By taking possession of the Premises, Tenant is deemed to have accepted
the Premises and agreed that the Premises is in good order and satisfactory
condition, with no representation or warranty by Landlord as to the
condition of the Premises or the Building or suitability thereof for
Tenant's use.
B. Notwithstanding anything to the contrary contained in this Lease,
Landlord shall not be obligated to tender possession of any portion of the
Premises or other space leased by Tenant from time to time hereunder that,
on the date possession is to be delivered, is occupied by a tenant or other
occupant or that is subject to the rights of any other tenant or occupant,
nor shall Landlord have any other obligations to Tenant under this Lease
with respect to such space until the date Landlord: (1) recaptures such
space from such existing tenant or occupant; and (2) regains the legal
right to possession thereof. Tenant expressly waives any right to rescind
this Lease under Section 223-a of the Real Property Law of the State of New
York (or any other law of like import, now or hereafter in force) and the
right to recover any damages resulting from Landlord's failure to deliver
possession of the Premises on any fixed date for any reason whatsoever. No
such failure shall affect the validity of this Lease or the obligations of
Tenant hereunder, be construed to extend the Lease Term or give rise to any
claim by Tenant for damages or for rescission of this Lease. If Landlord is
prevented from delivering possession of the Premises to Tenant due to the
holding over in possession of the Premises by a tenant or other occupant
thereof, Landlord shall use all commercially reasonable efforts to regain
possession of the Premises in order to deliver the same to Tenant. If the
Lease Term is to be determined pursuant to Section 1.K. (1) hereof, the
Commencement Date shall be postponed until the date Landlord delivers
possession of the Premises to Tenant, in which event the Termination Date
shall correspondingly be postponed on a per diem basis. Notwithstanding the
foregoing, Tenant shall have the right (the "CANCELLATION RIGHT") to cancel
this Lease in the event that the Premises has not been delivered to Tenant
on or before December 31, 2000; provided, however, that the Cancellation
Right must be exercised, if at all, by Tenant giving Landlord written
notice no later that five (5) days after the Cancellation Right first
becomes exercisable.
C. If Tenant takes possession of the Premises prior to the Commencement
Date, such possession shall be subject to all the terms and conditions of
the Lease. Notwithstanding the foregoing, if Tenant, with Landlord's prior
approval, takes possession of the Premises prior to the Commencement Date
for the sole purpose of performing any Landlord-approved improvements
therein or installing furniture, equipment or other personal property of
Tenant, such possession shall be subject to all of the terms and conditions
of the Lease, except that Tenant shall not be required to pay Rent with
respect to the period of time prior to the Commencement Date during which
Tenant performs such work. Tenant shall, however, be liable for the cost of
any services (e.g. electricity, HVAC, freight elevators) that are provided
to Tenant or the Premises during the period of Tenant's possession prior to
the Commencement Date. Nothing herein shall be construed as granting Tenant
the right to take possession of the Premises prior to the Commencement
Date, whether for construction, fixturing or any other purpose, without the
prior consent of Landlord.
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4. USE. The Premises shall be used for the Permitted Use and for no other
purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal, dangerous to life, limb or property or which, in
Landlord's reasonable judgement, creates a nuisance or which would increase the
cost of insurance coverage with respect to the Building above that of similar
Manhattan office buildings. Tenant will conduct its business and control its
agents, servants, employees, customers, licensees, and invitees in such a manner
as not to interfere with, annoy or disturb other tenants or Landlord in the
management of the Building and the Property. Tenant will maintain the Premises
in a clean and healthful condition, and comply with all laws, ordinances,
orders, rules and regulations of any governmental entity with reference to the
use, condition, configuration or occupancy of the Premises by Tenant, provided
such compliance does not require structural alterations to the Premises. Tenant,
within ten (10) days after the receipt thereof, shall provide Landlord with
copies of any notices it receives with respect to a violation or alleged
violation of any such laws, ordinances, orders, rules and regulations. Tenant,
at its expense, will comply with the rules and regulations of the Building
attached hereto as EXHIBIT B and such other rules and regulations reasonably
adopted and altered by Landlord from time-to-time (the "Rules and Regulations")
and will cause all of its agents, employees, invitees and visitors to do so. All
such changes to rules and regulations will be reasonable and shall be sent by
Landlord to Tenant in writing. All Rules and Regulations shall be enforced in a
non-discriminatory fashion. In the event of a conflict between the Rules and
Regulations and the Lease, the provisions of the Lease shall govern.
5. BASE RENT.
A. Tenant covenants and agrees to pay to Landlord during the Lease Term,
without any setoff or deduction except as otherwise expressly provided
herein, the full amount of all Base Rent and Additional Rent due hereunder
and the full amount of all such other sums of money as shall become due
under this Lease (including, without limitation, any charges for
replacement of electric lamps and ballasts and any other services, goods or
materials furnished by Landlord at Tenant's request), all of which
hereinafter may be collectively called "RENT." The Base Rent and Additional
Rent for each calendar year or portion thereof during the Lease Term, shall
be due and payable in advance in monthly installments of the first day of
each calendar month during the Lease Term and any extensions or renewals
hereof, and Tenant hereby agrees to pay such Base Rent and Additional Rent
to Landlord within ten (10) days after demand. If the Lease Term commences
on a day other than the first day of a month or terminates on a day other
than the last day of a month, then the installments of Base Rent and
Additional Rent for such month or months shall be prorated, based on the
number of days in such month. No payment by Tenant or receipt or acceptance
by Landlord of a lesser amount than the correct installment of Rent due
under this Lease shall be deemed to be other than a payment on account of
the earliest Rent due hereunder, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an
accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance or pursue any
other available remedy. The acceptance by Landlord of an installment of
Rent on a date after the due date of such payment shall not be construed to
be a waiver of Landlord's right to declare a default for any other late
payment. All amounts received by Landlord from Tenant hereunder shall be
applied first to the earliest accrued and unpaid Rent then outstanding.
Tenant's covenant to pay Rent shall be independent of every other covenant
set forth in this Lease. Provided that Tenant is not in default hereunder,
Tenant shall not be obligated to pay Base Rent for the first one (1) month
and two (2) weeks of the Lease Term (the commencement of which may be
delayed pursuant to the final sentence of Section 3.B.), or the first (1st)
month of the second (2nd) Lease Year.
B. To the extent allowed by law, all installments of Rent not paid when due
shall bear interest at the Default Rate from the date which is five (5)
days after the date when due until paid. In addition, if Tenant fails to
pay any installment of Base Rent and Additional Rent or any other item of
Rent for five (5) days after the date when due and payable hereunder, a
"LATE CHARGE" equal to five percent (5%) of such unpaid amount will be due
and payable immediately by Tenant to Landlord.
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C. The Additional Rent payable hereunder shall be adjusted from
time-to-time in accordance with the provisions of EXHIBIT C attached hereto
and incorporated herein for all purposes.
6. SECURITY DEPOSIT. The Security Deposit shall be held by Landlord and as
security for the performance by Tenant of Tenant's covenants and obligations
under this Lease including but not limited to those set forth in Section 10
hereof, it being expressly understood that the Security Deposit shall not be
considered an advance payment of Rent or a measure of Tenant's liability for
damages in case of default by Tenant. Landlord shall have no fiduciary
responsibilities or trust obligations whatsoever with regard to the Security
Deposit and shall not assume the duties of a trustee for the Security Deposit.
Landlord may, from time-to-time, without prejudice to any other remedy and
without waiving such default, use the Security Deposit to the extent necessary
to cure or attempt to cure, in whole or in part, any default of Tenant
hereunder. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. If Tenant is not in default in the payment of
Rent or Additional Rent and has surrendered possession of the Premises in the
manner required by the terms of this Lease at the termination of this Lease, the
balance of the Security Deposit remaining after any such application shall be
returned by Landlord to Tenant within thirty (30) days thereafter. If Landlord
transfers its interest in the Premises during the term of this Lease, Landlord
shall assign the Security Deposit to the transferee and thereafter shall have no
further liability for the return of such Security Deposit. After such transfer,
Tenant agrees to look solely to such transferee or assignee or successor thereof
for the return of the Security Deposit. Landlord and its successors and assigns
shall not be bound by any actual or attempted assignment or encumbrance of the
Security Deposit by Tenant. Landlord shall not be required to keep the Security
Deposit separate from its other security accounts. Provided in each instance
that Tenant is not in default hereunder, the Security Deposit shall be reduced
to (a) $488,261.25 at any time after the second Lease Year, provided that Tenant
provides Landlord with evidence acceptable to Landlord in its sole discretion,
based on Tenant's audited financial statements, that Tenant has had four (4)
consecutive quarters of positive net revenue profits, and (b) $325,507.50,
provided that Tenant provides Landlord with evidence acceptable to Landlord in
its sole discretion, based on Tenant's audited financial statements, that Tenant
has had eight (8) consecutive quarters of positive net revenue profits. The
Security Deposit shall be held by Landlord in an interest bearing account and,
provided that Tenant is not then in default hereunder beyond the expiration of
applicable grace periods hereunder, the interest accrued thereon less 1% for
Landlord's administrative costs and expenses shall be paid annually to Tenant
within thirty (30) days after the last of each Lease Year during the term
hereof. Landlord shall have no liability with respect to the results of its
investment of the Security Deposit other than for its gross negligence or
willful misconduct with respect thereto. Anything in this Section 6 to the
contrary notwithstanding, Tenant may, at its option and expense, satisfy the
requirement of delivery of the Security Deposit by the delivery to Landlord of
an unconditional and irrevocable letter of credit ("LETTER OF CREDIT") in the
amount of the Security Deposit. The Letter of Credit shall be issued by a bank
reasonably satisfactory to Landlord and located in New York, New York. Tenant
shall ensure that at all times after the execution and delivery of this Lease
until sixty (60) days after the Termination Date, as the same may be extended,
an unexpired Letter of Credit in the applicable amount as set forth above shall
be in the possession of Landlord. The Letter of Credit shall contain a so-called
"evergreen" clause providing that the Letter of Credit shall not be canceled
unless the issuing bank delivers sixty (60) days' prior written notice to
Landlord. Tenant shall deliver to Landlord, no later than thirty (30) days prior
to the expiry date of the then outstanding and expiring Letter of Credit (a) a
replacement Letter of Credit or (b) cash in the amount then required as the
Security Deposit. Landlord shall be entitled to draw on the Letter of Credit (i)
if Tenant fails to deliver any replacement Letter of Credit or pay the amount of
the Security Deposit in cash as required, in which event Landlord shall be
permitted to retain the entire proceeds of such Letter of Credit for application
as the Security Deposit hereunder, (ii) to cure or attempt to cure, in whole or
in part, any default by Tenant under this Lease, in which event Tenant shall
replenish the amount so drawn upon demand by Landlord, and (iii) if the credit
rating of the long-term debt of the issuer of the Letter of Credit (according to
Moody's or similar national rating agency) is downgraded to a grade below
investment rate), or if the issuer of the Letter of Credit shall enter into any
supervisory agreement with any governmental authority, or if the issuer of the
Letter of Credit shall fail to meet any capital requirements imposed by
applicable law, unless Tenant delivers to Landlord a replacement Letter of
Credit complying with the terms of this Lease or cash in the amount required as
the Security Deposit within ten (10) days after demand therefor from Landlord.
Failure by the issuer to honor a draw request on the Letter of Credit shall be a
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default under the terms of this Lease entitling Landlord to exercise its
remedies hereunder. Each Letter of Credit shall be for the benefit of Landlord
and its successors and assigns and shall entitle Landlord or its successors or
assigns to draw from time to time under the Letter of Credit in portions or in
whole upon presentation of a sight draft and statement by Landlord that Landlord
is entitled to draw thereunder pursuant to the terms and provisions of this
Lease. Landlord shall have an unrestricted right to transfer the Letter of
Credit at anytime and to any successor to Landlord. Tenant shall pay any
transfer commission (fee) and all other costs (hereinafter collectively referred
to as the "TRANSFER FEE") which may be imposed by the bank issuing the Letter of
Credit for the transfer of the Letter of Credit by Landlord. The Tenant's
failure to pay the Transfer Fee shall constitute a default of this Lease, and
Landlord shall have the right to pursue any and all remedies provided Landlord
under this Lease, in equity and at law.
7. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant the following services:
1. Hot and cold water for use in the lavatories on the floor(s) on
which the Premises is located. If Tenant desires water in the
Premises for any approved reason, including a private lavatory or
kitchen, cold water shall be supplied, at Tenant's sole cost and
expense, from the Building water main through a line and fixtures
installed at Tenant's sole cost and expense with the prior
reasonable consent of Landlord. If Tenant desires hot water in
the Premises, Tenant, at its sole cost and expense and subject to
the prior reasonable consent of Landlord, may install a hot water
heater in the Premises. Tenant shall be solely responsible for
the maintenance and repair of any such water heater.
2. Central heat and air conditioning in season during Normal
Business Hours, at such temperatures and in such amounts as are
considered by Landlord, in its reasonable judgment, to be
standard for buildings of similar class, size, age and location,
or as required by governmental authority. In the event that
Tenant requires central heat, ventilation or air conditioning
service at times other than Normal Business Hours, such
additional service shall be furnished only upon the written
request of Tenant delivered to Landlord prior to 3:00 p.m. at
least one Business Day in advance of the date for which such
usage is requested. Tenant shall bear the entire cost of
additional service as such costs are reasonably determined by
Landlord from time-to-time, as Additional Rent upon presentation
of a statement therefor by Landlord at the rates charged to other
tenants; as of the date of this Lease, such charges are $375 per
hour. All additional heating, ventilating and air conditioning
required (if any) to accommodate Tenant's design shall be
installed at the Tenant's expense subject to Landlord's prior
written approval. The cost of operation and maintenance of the
equipment shall be the responsibility of Tenant and paid to
Landlord as Additional Rent.
3. Maintenance and repair of all Common Areas in the manner and to
the extent reasonably deemed by Landlord to be standard for
buildings of similar class, age and location.
4. Janitorial and cleaning service in and about the Premises
(including, without limitation, the bathrooms in the Premises) on
Business Days in accordance with the specifications attached
hereto as Exhibit G; provided, however, if Tenant's floor
covering or other improvements require special treatment, Tenant
shall pay the additional cleaning cost attributable thereto as
Additional Rent upon presentation of a statement therefor by
Landlord. Tenant shall not provide or use any other janitorial or
cleaning services without Landlord's consent, and then only
subject to the supervision of Landlord and at Tenant's sole cost
and responsibility and by a janitor, cleaning contractor or
employees at all times
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reasonably satisfactory to Landlord which approval shall not be
unreasonably withheld or delayed.
5. Electricity to the Premises for general office use, in accordance
with and subject to the terms and conditions of Section 11 of
this Lease.
6. Fluorescent and incandescent bulb and ballast replacement in the
Common Areas and Service Areas, but Tenant shall be responsible
at its sole cost and expense for fluorescent bulb replacement in
the Premises as necessary to maintain the lighting at building
standard as established by Landlord.
7. Passenger elevator service in common with Landlord and other
persons and freight elevator service in common with the Landlord
and other persons during Normal Business Hours. Landlord,
however, shall provide limited passenger elevator service daily
at all times when normal passenger elevator service is not
provided.
8. Subject to the terms of this Lease, Tenant shall be entitled
access to the Premises 365 days per year, 7 days per week and 24
hours per day. Access control to the Building during other than
Normal Business Hours shall be provided in such form as Landlord
reasonably deems appropriate. Tenant shall have access to the
Building by means of card keys after Normal Business Hours.
Tenant shall cooperate fully in Landlord's efforts to maintain
access control to the Building and shall follow all regulations
reasonably promulgated by Landlord with respect thereto.
Notwithstanding anything herein to the contrary Tenant expressly
acknowledges and agrees that Landlord is not warranting the
efficacy of any access personnel, service, procedures or
equipment and that Tenant is not relying and shall not hereafter
rely on any such personnel service, procedures or equipment.
Landlord shall not be responsible or liable in any manner for
failure of any access personnel, services, procedures or
equipment to prevent, control, or apprehend anyone suspected of
causing personal injury or damage in, on or around the Project.
9. Landlord shall, at its expense, provide life safety service
through the Building's Class E System to the points of connection
on the floor of the Premises which shall provide such service to
the Premises. Landlord shall provide Tenant with sufficient
capability to connect Tenant's strobes, speakers and other
related life safety equipment to the Building's Class E System as
required for Tenant to comply with law.
B. If Tenant requests any other utilities or building services in addition
to those identified above, or any of the above utilities or building
services in frequency, scope, quality or quantities substantially greater
than the standards set by Landlord for the Building, then Landlord shall
use reasonable efforts to attempt to furnish Tenant with such additional
utilities or building services. Landlord may impose a reasonable charge for
such additional utilities or building services, which shall be paid monthly
by Tenant as Additional Rent on the same day that the monthly installment
of Base Rent is due.
C. Except as otherwise expressly provided herein, the failure by Landlord
to any extent to furnish, or the interruption or termination of these
defined services in whole or in part, resulting from adherence to laws,
regulations and administrative orders, wear, use, repairs, improvements
alterations or any causes beyond the reasonable control of Landlord shall
not render Landlord liable in any respect, nor relieve Tenant from the
obligation to fulfill any covenant or agreement hereof. Should any of the
equipment or machinery used in the provision of such services for any cause
cease to function properly, Landlord shall use reasonable diligence to
repair such equipment or machinery.
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8. LEASEHOLD IMPROVEMENTS/TENANT'S PROPERTY. All fixtures, equipment,
improvements and appurtenances attached to, or built into, the Premises at the
commencement of or during the Lease Term, whether or not by, or at the expense
of, Tenant ("LEASEHOLD IMPROVEMENTS"), shall be and remain a part of the
Premises; shall be the property of Landlord; and shall not be removed by Tenant
except as expressly provided herein. All unattached and moveable partitions,
trade fixtures, moveable equipment or furniture located in the Premises and
acquired by or for the account of Tenant, without expense to Landlord, which can
be removed without structural damage to the Building or Premises, and all
personalty brought into the Premises by Tenant ("TENANT'S PROPERTY") shall be
owned and insured by Tenant. Landlord may, nonetheless, at any time prior to, or
within one (1) month after, the expiration or earlier termination of this Lease
or Tenant's right to possession, require Tenant upon ninety (90) days' prior
notice to remove any Uncommon Improvements performed by or for the benefit of
Tenant and all electronic, phone and data cabling as are designated by Landlord
(the "REQUIRED REMOVABLES") at Tenant's sole cost. In the event that Landlord so
elects, Tenant shall remove such Required Removables within thirty (30) days
after notice from Landlord, provided that in no event shall Tenant be required
to remove such Required Removables prior to the expiration or earlier
termination of this Lease or Tenant's right to possession. In addition to
Tenant's obligation to remove the Required Removables, Tenant shall repair any
damage caused by such removal and perform such other work as is reasonably
necessary to restore the Premises. If Tenant fails to remove any specified
Required Removables or to perform any required repairs and restoration within
the time period specified above, Landlord, at Tenant's sole cost and expense,
may remove the Required Removables (and repair any damage occasioned thereby)
and dispose thereof or deliver the Required Removables to any other place of
business of Tenant, or warehouse the same, and Tenant shall pay the reasonable
cost of such removal, repair, delivery, or warehousing of the Required
Removables within five (5) days after demand from Landlord. Notwithstanding the
foregoing, Tenant may request in writing at the time it submits its plans and
specifications for an alteration, addition or improvement, that Landlord advise
Tenant whether Landlord will require Tenant to remove, at the termination of
this Lease or the termination of Tenant's right to possession hereunder, such
alteration, addition or improvement, or any particular portion thereof; and
Landlord shall advise Tenant within twenty (20) days after receipt of Tenant's
request as to whether Landlord will require removal of such alteration, addition
or improvement.
9. SIGNAGE. Landlord shall provide and install, at Tenant's cost, all letters or
numerals on the exterior of the Premises; all such letters and numerals shall be
in the standard graphics for the Building and no others shall be used or
permitted on the Premises without Landlord's prior written consent. In addition,
Landlord will list Tenant's name and those of its permitted subtenants or
assignees in the Building's directory, if any, located in the lobby of the
Building. Tenant shall be entitled to use its proportionate share of spaces in
the Building's directory located in the lobby of the Building to identify
Tenant's name and the names of Tenant's employees. Landlord shall make such
subsequent additions and deletions as Tenant requests in and to the initial
listing after the Commencement Date, provided Tenant shall pay Landlord
Landlord's reasonable charge for such additions and deletions. Tenant shall have
the right to install, at Tenant's cost, its own signage and logo on the floor of
the Building where the Premises is located, which signage (and the placement
thereof) shall be subject to Landlord's reasonable approval.
10. REPAIRS AND ALTERATIONS BY TENANT.
A. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant shall, at its sole cost and expense, maintain the
Premises in good order, condition and repair throughout the entire Lease
Term, ordinary wear and tear excepted. Tenant agrees to keep the areas
visible from outside the Premises in a neat, clean and attractive condition
at all times. Tenant shall be responsible for all repairs replacements and
alterations in and to the Premises, Building and Property and the
facilities and systems thereof, the need for which arises out of (1)
Tenant's particular use or occupancy of the Premises (provided such
repairs, replacements and alterations do not require structural alterations
to the Premises), (2) the installation, removal, use or operation of
Tenant's Property (as defined in Section 8. above), (3) the moving of
Tenant's Property into or out of the Building, or (4) the act, omission,
misuse or negligence of Tenant, its agents, contractors, employees or
invitees. All such repairs, replacements or alterations shall be performed
in accordance with Section 10.B. below and the rules, policies and
procedures reasonably enacted by Landlord from time to time for the
performance of work in the Building. If
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Tenant fails to maintain the Premises in good order, condition and repair,
Landlord shall give Tenant notice to perform such acts as are reasonably
required to so maintain the Premises. If Tenant fails to promptly commence
such work and diligently pursue it to its completion, then Landlord may, at
is option, make such repairs, and Tenant shall pay the reasonable cost
thereof to Landlord upon ten (10) days' prior notice as Additional Rent,
together with an administration charge in an amount equal to ten percent
(10%) of the cost of such repairs. Landlord shall, at its expense keep and
maintain in good repair and working order and make all repairs to and
perform necessary maintenance upon: (a) all structural elements of the
Building; and (b) all mechanical, electrical and plumbing systems that
serve the Building in general or portions of the Building outside of the
Premises; and (c) the Building facilities common to all tenants including
but not limited to, the ceilings, walls and floors in the Common Areas.
B. Tenant shall not make or allow to be made any alterations, additions or
improvements to the Premises, without first obtaining the written consent
of Landlord in each such instance, which consent may be refused or given on
such conditions as Landlord may elect. Landlord agrees not to withhold or
delay its consent unreasonably to any alterations, additions or
improvements by Tenant which (i) do not affect base building systems or the
structure of the Building, (ii) are not visible from the outside the
Premises, and (iii) which would not materially detract from the aesthetic
integrity of the Building or its design. Landlord shall not be deemed to
have acted unreasonably if it withholds its consent because, in Landlord's
opinion, such work: could affect the safety of the Building or its
occupants; would increase Landlord's cost of repairs, insurance or
furnishing services or otherwise adversely Landlord's ability to
efficiently operate the Building or furnish services to Tenant or other
tenants; involves toxic or hazardous materials; could be costly or
hazardous to remove or demolish; requires entry into another tenant's
premises or use of public areas; or is prohibited by any mortgage on the
Building. The foregoing reasons, however, shall not be exclusive of the
reasons for which Landlord may withhold consent, whether or not such other
reasons are similar or dissimilar to the foregoing. Specific consent from
Landlord shall not be required for work not costing more than $20,000 for
each project and consisting solely of painting, wall covering and carpeting
or similar decorating work or furnishings (so long as such work does not
involve hazardous materials, and does not fall within category (i) or (ii)
above) and Tenant may perform such work, so long as Tenant informs Landlord
in reasonable detail of the nature of the work, and otherwise complies with
the provisions of this Section 10. Prior to commencing any such work and as
a condition to obtaining Landlord's consent, Tenant must furnish Landlord
with plans and specifications acceptable to Landlord; names and addresses
of contractors reasonably acceptable to Landlord; copies of contracts;
necessary permits and approvals; evidence of contractor's and
subcontractor's insurance in accordance with Section 15 hereof; and a
payment bond or other security, all in form and amount satisfactory to
Landlord. Tenant shall be responsible for insuring that all such persons
procure and maintain insurance coverage against such risks, in such amounts
and with such companies as Landlord may reasonably require, including, but
not limited to, Builder's Risk and Worker's Compensation insurance. All
such improvements, alterations or additions shall be constructed in a good
and workerlike manner using Building Standard materials or other new
materials of equal or greater quality. Landlord, to the extent reasonably
necessary to avoid any disruption to the tenants and occupants of the
Building, shall have the right to reasonably designate the time when any
such alterations, additions and improvements may be performed and to
otherwise designate reasonable rules, regulations and procedures for the
performance of work in the Building. Upon completion, Tenant shall furnish
"as-built" plans, contractor's affidavits and full and final waivers of
lien and receipted bills covering all labor and materials. All
improvements, alterations and additions shall comply with the insurance
requirements, codes, ordinances, laws and regulations, including without
limitation, the Americans with Disabilities Act. Tenant shall reimburse
Landlord upon ten (10) days' prior notice for all reasonable sums, if any,
expended by Landlord for third party examination of the architectural,
mechanical, electrical and plumbing plans for any alterations, additions or
improvements. In addition, if Landlord so requests, Landlord shall be
entitled to oversee the construction of any alterations, additions or
improvements that may affect the structure of the Building or any of the
mechanical, electrical, plumbing or life safety systems of the Building. In
the event Landlord elects to oversee such work, Landlord shall be entitled
to receive
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a fee for such oversight in an amount equal to ten percent (10%) of the
portion of the cost of such alterations, additions or improvements which
needs to be so overseen. Landlord's approval of Tenant's plans and
specifications for any work performed for or on behalf of Tenant shall not
be deemed to be representation by Landlord that such plans and
specifications comply with applicable insurance requirements, building
codes, ordinances, laws or regulations or that the alterations, additions
and improvements constructed in accordance with such plans and
specifications will be adequate for Tenant's use.
11. USE OF ELECTRICAL SERVICES BY TENANT.
A. All electricity used by Tenant in the Premises shall be paid for by
Tenant through inclusion in Base Rent of an amount equal to $3.00 per
rentable square foot of the Premises per annum (the "ELECTRIC INCLUSION
AMOUNT"). Landlord shall have the right at any time and from time-to-time
during the Lease Term to contract for electricity service from such
providers of such services as Landlord shall elect (each being an "ELECTRIC
SERVICE PROVIDER"). Tenant shall cooperate with Landlord, and the
applicable Electric Service Provider, at all times and, as reasonably
necessary, shall allow Landlord and such Electric Service Provider
reasonable access to the Building's electric lines, feeders, risers,
wiring, and any other machinery within the Premises. Landlord shall in no
way be liable or responsible for any loss, damage, or expense that Tenant
may sustain or incur by reason of any change, failure, interference,
disruption, or defect in the supply or character of the electric energy
furnished to the Premises, or if the quantity or character of the electric
energy supplied by the Electric Service Provider is no longer available or
suitable for Tenant's requirements unless caused by Landlord's gross
negligence, and no such change, failure, defect, unavailability, or
unsuitability shall constitute an actual or constructive eviction, in whole
or in part, or entitle Tenant to any abatement or diminution of rent, or
relieve Tenant from any of its obligations under the Lease. Tenant shall be
responsible for providing all light bulbs to the Premises at Tenant's sole
cost and expense.
B. Tenant's use of electrical services furnished by Landlord shall not
exceed in voltage, rated capacity, or overall load that which is standard
for the Building. In the event Tenant shall request that it be allowed to
consume electrical services in excess of the available capacity, Landlord
may refuse to consent to such usage or may consent upon such conditions as
Landlord reasonably elects (including the installation of utility service
upgrades, submeters, air handlers or cooling units), and all such
additional usage (to the extent permitted by law), installation and
maintenance thereof shall be paid for by Tenant as Additional Rent.
Landlord, at any time during the Lease Term, shall have the right to
measure Tenant's electrical usage by survey or any other method that
Landlord, in its reasonable judgment, deems appropriate and, if the results
of such survey or other method indicate that Tenant's electrical
consumption exceeds the Building Standard, Landlord shall equitably
increase the Electric Inclusion Amount to compensate Landlord for such
additional usage by Tenant based on the results of such survey or other
method. In the event Tenant disputes the results of Landlord's survey,
Landlord shall appoint an engineer reasonably acceptable to Tenant to
review such survey and resolve the dispute. The engineer's determination
shall be binding on Landlord and Tenant, and Tenant shall be responsible
for such engineer's fees.
12. ENTRY BY LANDLORD. Tenant shall permit Landlord or its agents or
representatives to enter into and upon any part of the Premises to inspect the
same, or to show the Premises to prospective purchasers, mortgagees, tenants
(during the last (12) twelve months of the Lease Term or earlier in connection
with a potential relocation) or insurers, or to clean or make repairs,
alterations, or additions thereto, including any work that Landlord deems
necessary for the safety, protection or preservation of the Building or any
occupants thereof, or to facilitate repairs, alterations or additions to the
Building or any other tenant's premises. Except for any entry by Landlord in an
emergency situation or to provide normal cleaning and janitorial service,
Landlord shall provide Tenant with reasonable prior notice of any entry into the
Premises, which notice may be given verbally and such entry shall be during
Normal Business Hours (except in the event of an emergency). Landlord shall have
the right to temporarily close the Premises or the Building to perform repairs,
alterations or additions in the Premises or the Building, provided that
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Landlord shall use reasonable efforts to perform all such work on weekends and
after Normal Business Hours and to otherwise minimize interference with the
operation of Tenant's business in the Premises. Entry by Landlord hereunder
shall not constitute a constructive eviction or entitle Tenant to any abatement
or reduction of Rent by reason thereof.
13. ASSIGNMENT AND SUBLETTING.
A. Except in connection with a Permitted Transfer (defined in Section 13.E.
below), Tenant shall not assign, sublease, transfer or encumber any
interest in this Lease or allow any third party to use any portion of the
Premises (collectively or individually, a "TRANSFER") without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld. Without limitation, it is agreed that Landlord's consent shall
not be considered unreasonably withheld if: (1) the proposed transferee's
financial condition does not meet the criteria Landlord uses to select
Building tenants having similar leasehold obligations; (2) the proposed
transferee's business is not suitable for the Building considering the
business of the other tenants and the Building's prestige, or would result
in a violation of another tenant's rights; (3) the proposed transferee is a
governmental agency or occupant of the Building; (4) Tenant is in default
beyond any applicable notice and cure period; (5) any portion of the
Building or the Premises would likely become subject to additional or
different laws as a consequence of the proposed Transfer; (6) the proposed
transferee, or any person or entity who directly or indirectly, controls,
or is controlled by, or is under common control with, the proposed
transferee, is an occupant of any part of the Building at the time Tenant
requests such consent if Landlord has comparable space for lease in the
Building for a comparable term; (7) the proposed transferee has negotiated
with Landlord to lease space in the Building within five (5) months prior
to the time Tenant requests such consent if Landlord has comparable space
for lease in the Building for a comparable term; or (8) Tenant has
advertised such space without obtaining Landlord's prior consent (which may
be withheld in Landlord's sole discretion) to the form and substance of
such advertisement. Notwithstanding the foregoing, Tenant shall designate
Landlord's exclusive leasing agent (the "AGENT") as Tenant's exclusive
agent for a period of forty-five (45) days to effect any such Transfer, and
upon the execution of any surrender, sublease or assignment, Tenant shall
pay the Agent a commission at the Agent's then current commission rates.
Any attempted Transfer in violation of this Section 13, shall, exercisable
in Landlord's sole and absolute discretion, be voidable. Consent by
Landlord to one or more Transfer(s) shall not operate as a waiver of
Landlord's rights to approve any subsequent Transfer(s). IN NO EVENT SHALL
ANY TRANSFER OR PERMITTED TRANSFER RELEASE OR RELIEVE TENANT FROM ANY
OBLIGATION UNDER THIS LEASE OR ANY LIABILITY HEREUNDER.
B. If Tenant requests Landlord's consent to a Transfer, Tenant shall submit
to Landlord financial statements for the proposed transferee, a complete
copy of the proposed assignment, sublease and other information as Landlord
may reasonably request. Landlord shall within thirty (30) days after
Landlord's receipt of the required information and documentation either:
(1) consent or reasonably refuse consent to the Transfer in writing; (2) in
the event of a proposed assignment of this Lease or a proposed sublease of
the entire Premises for the entire remaining term of this Lease (for
purposes of this Section 13.B., "the entire Premises" shall mean eighty
percent (80%) or more of the Premises and "the entire remaining term" shall
mean a term which extends beyond the final twelve (12) months of the Lease
Term), terminate this Lease effective the date that the proposed Transfer
would have come into effect. If Landlord shall fail to notify Tenant in
writing of its decision within such thirty (30) days period after the later
of the date Landlord is notified in writing of the proposed Transfer or the
date Landlord has received all required information concerning the proposed
transferee and the proposed Transfer, Landlord shall be deemed to have
consented to such Transfer, and to have elected to keep this Lease in full
force and effect. Tenant shall pay Landlord a review fee of $1,000.00 for
Landlord's review of any requested Transfer (but not in connection with a
Permitted Transfer). In addition, Tenant shall reimburse Landlord for its
actual reasonable costs and expenses (including without limitation
reasonable attorney's fees) incurred by Landlord in connection with
Landlord's review of such requested Transfer or Permitted Transfer.
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C. Other than in the case of a Permitted Transfer, Tenant shall pay to
Landlord fifty percent (50%) of all cash and other consideration which
Tenant receives as a result of a Transfer that is in excess of the rent
payable to Landlord hereunder for the portion of the Premises and Term
covered by the Transfer within twenty (20) days following receipt thereof
by Tenant less expenses incurred by Tenant for advertising, commissions,
attorneys' fees, construction and free rent. If Tenant is in Monetary
Default (defined in Section 22 below), Landlord may require that all
sublease payments be made directly to Landlord, in which case Tenant shall
receive a credit against rent in the amount of any payments received (less
Landlord's share of any excess).
D. Except as provided below with respect to a Permitted Transfer, if Tenant
is a corporation, limited liability company, partnership or similar entity,
and the entity which owns or controls a majority of the voting
shares/rights at the time changes for any reason (including but not limited
to a merger, consolidation or reorganization), such change of ownership or
control shall constitute a Transfer. The foregoing shall not apply so long
as Tenant is an entity whose outstanding stock is listed on a nationally
recognized security exchange, or if at least fifty percent (50%) of its
voting stock is owned by another entity, the voting stock of which is so
listed.
E. Tenant may assign its entire interest under this Lease or sublet all or
a portion of the Premises to any entity controlling or controlled by or
under common control with Tenant or to any successor to Tenant by purchase,
merger, consolidation or reorganization (hereinafter, collectively,
referred to as "PERMITTED TRANSFER") without the consent of Landlord,
provided: (1) Tenant is not in default under this Lease beyond applicable
notice and cure periods; (2) if such proposed transferee is a successor to
Tenant by purchase, said proposed transferee shall acquire all or
substantially all of the stock or assets of Tenant's business or, if such
proposed transferee shall acquire all or substantially all of the stock or
assets of Tenant's business or, if such proposed transferee is a successor
to Tenant by merger, consolidation or reorganization, the continuing or
surviving corporation shall own all or substantially all of the assets of
Tenant; (3) such proposed transferee shall have a net worth which is at
least equal to the Tenant's net worth as of the day prior to the proposed
purchase, merger, consolidation or reorganization as evidenced to
Landlord's reasonable satisfaction; (4) such proposed transferee operates
their business in the Premises for the Permitted Use and no other purpose;
and (5) Tenant shall give Landlord written notice at least fifteen (15)
days prior to the effective date of the proposed purchase, merger,
consolidation or reorganization.
F. Tenant agrees that in the event Landlord withholds its consent to any
Transfer contrary to the provisions of this Section 13, Tenant's sole
remedy shall be to seek an injunction in equity or compel performance by
Landlord to give its consent and Tenant expressly waives any right to
damages in the event of such withholding by Landlord of its consent.
G. In the event that Tenant desires to enter into one (1) sublease for up
to 5,000 rentable square feet of the Premises during the first two (2)
years of the Term (an "EXPEDITED SUBLEASE"), the following shall apply: (1)
Tenant shall submit to Landlord a copy of the proposed business terms of
the proposed sublease, in lieu of a complete copy of the proposed sublease
as required pursuant to the first sentence of Section 13.B.; (2) Landlord
shall grant or deny its consent to the proposed sublease within fifteen
(15) Business Days instead of the thirty (30) days required in the second
sentence of Section 13.B; and (3) Tenant shall reimburse Landlord for its
actual, out of pocket costs instead of the $1,000 review fee referenced in
the penultimate sentence of Section 13.B. Notwithstanding the foregoing,
all of the other provisions of this Section 13 not specifically modified
above shall apply to such Expedited Sublease.
14. MECHANIC'S LIENS. Tenant will not permit any mechanic's liens or other liens
to be placed upon the Premises, the Building, or the Property and nothing in
this Lease shall be deemed or construed in any way as constituting the consent
or request of Landlord, express or implied, by inference or otherwise, to any
person for the performance of any labor or the furnishing of any materials to
the Premises, the Building, or the Property or any part thereof, nor as giving
Tenant any right, power, or authority to contract for or permit the rendering of
any services or the furnishing of any materials that would give rise to any
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mechanic's or other liens against the Premises, the Building, or the Property.
In the event any such lien is attached to the Premises, the Building, or the
Property, then, in addition to any other right or remedy of Landlord, Landlord
may, upon twenty (20) days' notice to Tenant, but shall not be obligated to,
discharge the same. Any amount paid by Landlord for any of the aforesaid
purposes including, but not limited to, reasonable attorneys' fees, shall be
paid by Tenant to Landlord promptly on demand as Additional Rent. Tenant shall
within ten (10) Business Days of receiving such notice of lien or claim (a) have
such lien or claim released or (b) deliver to Landlord a bond in form, content,
amount and issued by surety, reasonably satisfactory to Landlord, indemnifying,
protecting, defending and holding harmless the Indemnities against all costs and
liabilities resulting from such lien or claim and the foreclosure or attempted
foreclosure thereof. Tenant's failure to comply with the provisions of the
foregoing sentence shall be deemed an Event of Default under Section 22 hereof
entitling Landlord to exercise all of its remedies therefor without the
requirement of any additional notice or cure period.
15. INSURANCE.
A. Landlord shall maintain such insurance on the Building and the Premises
(other than on Tenant's Property or any additional improvements constructed
in the Premises by Tenant), and such liability insurance in such amounts as
Landlord elects provided the same is not less than that maintained by
prudent landlords of similar buildings. Payments for losses under such
insurance shall be made solely to Landlord or the mortgagees of Landlord as
their interests shall appear.
B. Tenant shall maintain at its expense, (1) in an amount equal to full
replacement cost, special form (formerly known as all risk) property
insurance on all of its personal property, including removable trade
fixtures and leasehold and tenant improvements, and Tenant's Property
located in the Premises and in such additional amounts as are required to
meet Tenant's obligations pursuant to Section 18 hereof and with
deductibles in an amount reasonably satisfactory to Landlord, and (ii) a
policy or policies of commercial general liability insurance (including
endorsement or separate policy for owned or non-owned automobile liability)
with respect to its activities in the Building and on the Property, with
the premiums thereon fully paid on or before the due date, in an amount of
not less than $2,000,000 per occurrence per person coverage for bodily
injury, property damage, personal injury or combination thereof (the term
"personal injury" as used herein means, without limitation, false arrest,
detention or imprisonment, malicious prosecution, wrongful entry, liable
and slander), provided that if only single limit coverage is available it
shall be for at least $2,000,000 per occurrence with an umbrella policy of
at least $5,000,000 combined single limit per occurrence. Tenant's
insurance policies shall name Landlord and Building Manager as additional
insureds and shall include coverage for the contractual liability of Tenant
to indemnify Landlord and Building Manager pursuant to Section 16 of this
Lease and shall have deductibles in an amount reasonably satisfactory to
Landlord. Prior to Tenant's taking possession of the Premises, Tenant shall
furnish evidence reasonably satisfactory to Landlord of the maintenance and
timely renewal of such insurance, and Tenant shall obtain and deliver to
Landlord a written obligation on the part of each insurer to notify
Landlord at least thirty (30) days prior to the modification, cancellation
or expiration of such insurance policies. In the event Tenant shall not
have delivered to Landlord a policy or certificate evidencing such
insurance at least thirty (30) days prior to the expiration date of each
expiring policy, Landlord shall notify Tenant and if Tenant does not
provide evidence of coverage within ten (10) days thereafter, Landlord may
obtain such insurance as Landlord may reasonably require to protect
Landlord's interest (which obtaining of insurance shall not be deemed to be
a waiver of Tenant's default hereunder). The cost to Landlord of obtaining
such policies, plus an administrative fee in the amount of six percent (6%)
of the cost of such policies shall be paid by Tenant to Landlord as
Additional Rent upon demand.
C. The insurance requirements set forth in this Section 15 are independent
of the waiver, indemnification, and other obligations under this Lease and
will not be construed or interpreted in any way to restrict, limit or
modify the waiver, indemnification and other obligations or to in any way
limit any party's liability under this Lease. In addition to the
requirements set forth in Sections 15 and 16 hereof, the insurance required
of Tenant under this Lease must be issued by an
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<PAGE> 18
insurance company with a rating of no less than B+ in the current Best's
Insurance Guide, or A- in the current Standard & Poor Insurance Solvency
Review, or in that is otherwise acceptable to Landlord, and admitted to
engage in the business of insurance in the state in which the Building is
located; be primary insurance for all claims under it and provide that any
insurance carried by Landlord and Landlord's lenders is strictly excess,
secondary and noncontributing with any insurance carried by Tenant; and
provide that insurance may not be cancelled, nonrenewed or the subject of
material change in coverage of available limits of coverage, except upon
thirty (30) days prior written notice to Landlord and Landlord's lenders
(whose names and addresses have been provided to Tenant). Tenant will
deliver either a duplicate original or a legally enforceable certificate of
insurance on all policies procured by Tenant in compliance with Tenant's
obligations under this Lease, together with evidence reasonably
satisfactory to Landlord of the payment of the premiums therefor, to
Landlord on or before the date Tenant first occupies any portion of the
Premises, at least thirty (30) days before the expiration date of any
policy and upon the renewal of any policy. Landlord must give its prior
written approval to all deductibles and self-insured retentions under
Tenant's policies. Tenant may comply with its insurance coverage
requirements through a blanket policy, provided Tenant, at Tenant's sole
expense, procures a "per location" endorsement, or equivalent reasonably
acceptable to Landlord, so that the general aggregate and other limits
apply separately and specifically to the Premises.
D. If Tenant's business operations, conduct or use of the Premises or any
other part of the Property causes an increase in the premium for any
insurance policy carried by Landlord, Tenant will, within twenty (20) days
after receipt of notice from Landlord, reimburse Landlord for the entire
increase.
E. Neither Landlord nor Tenant shall be liable (by way of subrogation or
otherwise) to the other party (or to any insurance company insuring the
other party) for any personal injury or loss or damage to any of the
property of Landlord or Tenant, as the case may be, with respect to their
respective property, the Building, the Property or the Premises or any
addition or improvements thereto, or any contents therein, to the extent
covered by insurance carried or required to be carried by a party hereto
even though such loss might have been occasioned by the negligence or
willful acts or omissions of the Landlord or Tenant or their respective
employees, agents, contractors or invitees. Since this mutual waiver will
preclude the assignment of any such claim by subrogation (or otherwise) to
an insurance company (or any other person), Landlord and Tenant each agree
to give each insurance company which has issued, or on the future may
issue, policies of insurance, with respect to the items covered by this
waiver, written notice of the terms of this mutual waiver, and to have such
insurance policies properly endorsed, if necessary, to prevent the
invalidation of any of the coverage provided by such insurance policies by
reason of such mutual waiver. For the purpose of the foregoing waiver, the
amount of any deductible applicable to any loss or damage shall be deemed
covered by, and recoverable by the insured under the insurance policy to
which such deductible relates. In the event that Tenant is permitted to and
self-insures any risk for which insurance is required to be carried under
this Lease, or if Tenant fails to carry any insurance required to be
carried by Tenant pursuant to this Lease, then all loss or damage to
Tenant, its leasehold interest, its business, its property, the Premises or
any additions or improvements thereto or contents thereof shall be deemed
covered by and recoverable by Tenant under valid and collectible policies
of insurance. Notwithstanding anything to the contrary herein, Landlord
shall not be liable to the Tenant or any insurance company (by way of
subrogation or otherwise) insuring the Tenant for any loss or damage to any
property, or bodily injury or personal injury or any resulting loss of
income or losses from worker's compensation laws and benefits, even though
such loss or damage might have been occasioned by the negligence of
Landlord, its agents or employees, or Building Manager, if any such loss or
damage was required to be covered by insurance pursuant to this Lease.
16. INDEMNITY. To the extent not expressly prohibited by law, neither Landlord
nor Building Manager nor any of their respective officers, directors, employees,
members, managers, or agents shall be liable to Tenant, or to Tenant's agents,
servants, employees, customers, licensees, or invitees for any injury to person
or damage to property caused by any act, omission, or neglect of Tenant, its
agents, servants,
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employees, customers, invitees, licensees or by any other person entering the
Building or upon the Property under the invitation of Tenant or arising out of
the use of the Property, Building or Premises by Tenant and the conduct of its
business or out of a default by Tenant in the performance of its obligations
hereunder. Tenant hereby indemnifies and holds Landlord and Building Manager and
their respective officers, directors, employees, members, managers and agents
("INDEMNITEES"), harmless from all liability and claims for any property damage,
or bodily injury or death of, or personal injury to, a person in or on the
Premises, or at any other place, including the Property or the Building and this
indemnity shall be enforceable to the full extent whether or not such liability
and claims are the result of the sole, joint or concurrent acts, negligent or
intentional, or otherwise, of Tenant, or its employees, agents, servants,
customers, invitees or licensees. Such indemnity for the benefit of Indemnitees
shall be enforceable even if Indemnitees, or any one or more of them have or has
caused or participated in causing such liability and claims by their joint or
concurrent acts, negligent or intentional, or otherwise. Notwithstanding the
terms of this Lease to the contrary, the terms of this Section shall survive the
expiration or earlier termination of this Lease.
17. DAMAGES FROM CERTAIN CAUSES. To the extent not expressly prohibited by law,
Landlord shall not be liable to Tenant or Tenant's employees, contractors,
agents, invitees or customers, for any injury to person or damage to property
sustained by Tenant or any such party or any other person claiming through
Tenant resulting from any accident or occurrence in the Premises or any other
portion of the Building caused by the Premises or any other portion of the
Building becoming out of repair or by defect in or failure of equipment, pipes,
or wiring, or by broken glass, or by the backing up of drains, or by gas, water,
steam, electricity, or oil leaking, escaping or flowing into the Premises
(except where due to Landlord's willful failure to make repairs required to be
made pursuant to other provisions of this Lease, after the expiration of a
reasonable time after written notice to Landlord of the need for such repairs),
nor shall Landlord be liable to Tenant for any loss or damage that may be
occasioned by or through the acts or omissions of other tenants of the Building
or of any other persons whomsoever, including, but not limited to riot, strike,
insurrection, war, court order, requisition, order of any governmental body or
authority, acts of God, fire or theft.
18. CASUALTY DAMAGE. If the Premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give prompt written notice thereof to
Landlord. In case the Building shall be so damaged that substantial alteration
or reconstruction of the Building shall, in Landlord's sole opinion, be required
(whether or not the Premises shall have been damaged by such casualty) or in the
event there is less than two (2) years of the Lease Term remaining or in the
event Landlord's mortgagee should require that the insurance proceeds payable as
a result of a casualty be applied to the payment of the mortgage debt or in the
event of any material uninsured loss to the Building, Landlord may, at its
option, terminate this Lease by notifying Tenant in writing of such termination
within ninety (90) days after the date of such casualty. If Landlord does not
thus elect to terminate this Lease, Landlord shall commence and proceed with
reasonable diligence to restore the Building, and the improvements located
within the Premises, if any, for which Landlord had financial responsibility
pursuant to the Work Letter Agreement attached hereto as EXHIBIT D (except that
Landlord shall not be responsible for delays not within the control of Landlord)
to substantially the same condition in which it was immediately prior to the
happening of the casualty. Notwithstanding the foregoing, Landlord's obligation
to restore the Building, and the improvements located within the Premises, if
any, for which Landlord had financial responsibility pursuant to the Work Letter
Agreement, shall not require Landlord to expend for such repair and restoration
work more than the insurance proceeds actually received by the Landlord as a
result of the casualty and Landlord's obligation to restore shall be further
limited so that Landlord shall not be required to expend for the repair and
restoration of the improvements located within the Premises, if any, for which
Landlord had financial responsibility pursuant to the Work Letter Agreement,
more than the dollar amount of the Allowance, if any, described in the Work
Letter Agreement. When the repairs described in the preceding two sentences have
been completed by Landlord, Tenant shall complete the restoration of all
improvements, including furniture, fixtures and equipment, which are necessary
to permit Tenant's reoccupancy of the Premises. Except as set forth above, all
cost and expense of reconstructing the Premises shall be borne by Tenant, and
Tenant shall present Landlord with evidence reasonably satisfactory to Landlord
of Tenant's ability to pay such costs prior to Landlord's commencement of repair
and restoration of the Premises. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any
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way from such damage or the repair thereof, except that, subject to the
provisions of the next sentence, Landlord shall allow Tenant a fair diminution
of Rent during the time and to the extent the Premises are unfit for occupancy.
If the Premises or any other portion of the Property is damaged by fire or other
casualty resulting from the fault or negligence of Tenant or any of Tenant's
agents, employees, or invitees, the rent hereunder shall not be diminished
during the repair of such damage and Tenant shall be liable to Landlord for the
cost of the repair and restoration of the Property caused thereby to the extent
such cost and expense is not covered by insurance proceeds. This Section 18
constitutes an express agreement governing damage or destruction of the Premises
or the Building by fire or other casualty, and neither Section 227 of the Real
Property Law of the State of New York, which provides for such contingency in
the absence of an express agreement, nor any other laws of similar import now or
hereafter in effect shall have any application in any such case.
19. CONDEMNATION. If the whole or any substantial part of the Premises or if the
Building or any portion thereof which would leave the remainder of the Building
unsuitable for use as an office building comparable to its use on the
Commencement Date, or if the land on which the Building is located or any
material portion thereof, shall be taken or condemned for any public or
quasi-public use under governmental law, ordinance or regulation, or by right of
eminent domain, or by private purchase in lieu thereof, then Landlord may, at
its option, terminate this Lease and the Rent shall be abated during the
unexpired portion of this Lease, effective when the physical taking of said
Premises or said portion of the Building or land shall occur. In the event this
Lease is not terminated, the Rent for any portion of the Premises so taken or
condemned shall be abated during the unexpired term of this Lease effective when
the physical taking of said portion of the Premises shall occur. All
compensation awarded for any such taking or condemnation, or sale proceeds in
lieu thereof, shall be the property of Landlord, and Tenant shall have no claim
thereto, the same being hereby expressly waived by Tenant, except for any
portions of such award or proceeds which are specifically allocated by the
condemning or purchasing party for the taking of or damage to Tenant's Property
or moving expenses, which Tenant specifically reserves to itself.
20. HAZARDOUS SUBSTANCES.
A. Tenant hereby represents and covenants to Landlord the following: No
toxic or hazardous substances or wastes, pollutants or contaminants
(including, without limitation, asbestos, urea formaldehyde, the group of
organic compounds known as polychlorinated biphenyls, petroleum products
including gasoline, fuel oil, crude oil and various constituents of such
products, radon, and any hazardous substance as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. 9601-9657, as amended ("CERCLA") (collectively,
"ENVIRONMENTAL POLLUTANTS") other than customary office supplies and
cleaning supplies stored and handled within the Premises in accordance with
all applicable laws, will be generated, treated, stored, released or
disposed of, or otherwise placed, deposited in or located on the Property,
and no activity shall be taken on the Property, by Tenant, its agents,
employees, invitees or contractors, that would cause or contribute to (i)
the Property or any part thereof to become a generation, treatment, storage
or disposal facility within the meaning of or otherwise bring the Property
within the ambit of the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. 5901 et. seq., or any similar state law or local
ordinance, (ii) a release or threatened release of toxic or hazardous
wastes or substances, pollutants or contaminants, from the Property or any
part thereof within the meaning of, or otherwise result in liability in
connection with the Property within the ambit of CERCLA, or any similar
state law or local ordinance, or (iii) the discharge of pollutants or
effluents into any water source or system, the dredging or filling of any
waters, or the discharge into the air of any emissions, that would require
a permit under the Federal Water Pollution Control Act, 33 U.S.C. 1251 et.
seq., or the Clean Air Act, 42 U.S.C. 7401 et. seq., or any similar state
law or local ordinance. Landlord shall deliver to Tenant an ACP-5 for the
Premises.
B. Tenant agrees to indemnify and hold Indemnitees (as defined in Section
16) harmless from and against and to reimburse Indemnitees with respect to,
any and all claims, demands, causes of action, loss, damage, liabilities,
costs and expenses (including attorneys' fees and court costs) of any and
every kind or character, known or unknown, fixed or contingent, asserted
against
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or incurred by Landlord at any time and from time-to-time by reason of or
arising out of the breach of any representation or covenant contained in
Section 20.A. above.
C. Tenant shall immediately notify Landlord in writing of any release or
threatened release of toxic or hazardous wastes or substances, pollutants
or contaminants of which Tenant has knowledge whether or not the release is
in quantities that would require under law the reporting of such release to
a governmental or regulatory agency.
D. Tenant shall also immediately notify Landlord in writing of, and shall
contemporaneously provide Landlord with a copy of the following promptly
after Tenant's receipt of the same:
1. Any written notice of release of hazardous wastes or substances,
pollutants or contaminants on the Property that is provided by
Tenant or any subtenant or other occupant of the Premises to a
governmental or regulatory agency;
2. Any notice of a violation, or a potential or alleged violation,
of any Environmental Law (hereinafter defined) that is received
by Tenant or any subtenant or other occupant of the Premises from
any governmental or regulatory agency;
3. any inquiry, investigation, enforcement, cleanup, removal, or
other action that is instituted or threatened by a governmental
or regulatory agency against Tenant or any subtenant or other
occupant of the Premises and that relates to the release or
discharge of hazardous wastes or substances, pollutants or
contaminants on or from the Property;
4. Any claim that is instituted or threatened by any third-party
against Tenant or any subtenant or other occupant of the Premises
and that relates to any release or discharge of hazardous wastes
or substances, pollutants or contaminants on or from the
Property; and
5. Any notice of the loss of any environmental operating permit by
Tenant or any subtenant or other occupant of the Premises.
E. As used herein "ENVIRONMENTAL LAWS" mean all present and future federal,
state and municipal laws, ordinances, rules and regulations applicable to
environmental and ecological conditions, and the rules and regulations of
the U.S. Environmental Protection Agency, and any other federal, state or
municipal agency, or governmental board or entity relating to environmental
matters.
21. AMERICANS WITH DISABILITIES ACT. To the extent required by law, Tenant
agrees to comply with all requirements of the Americans with Disabilities Act
(Public Law (July 26, 1990) ("ADA")) applicable to the Premises and such other
current acts or other subsequent acts (whether federal or state) addressing like
issues as are enacted or amended. Tenant agrees to indemnify and hold Landlord
harmless from any and all reasonable expenses, liabilities, costs or damages
suffered by Landlord as a result of additional obligations which may be imposed
on the Building or the Property under of such acts by virtue of Tenant's
operations and/or occupancy, including the alleged negligence of the Landlord.
Any such provision shall be interpreted in a manner which permits compliance
with the ADA and is hereby amended to permit such compliance.
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22. EVENTS OF DEFAULT.
A. The following events shall be deemed to be "EVENTS OF DEFAULT" under
this Lease:
1. Tenant shall fail to pay when due any Base Rent, Additional Rent
or other amount payable by Tenant to Landlord under this Lease
for a period of five (5) days after notice (hereinafter sometimes
referred to as a "MONETARY DEFAULT").
2. Any failure by Tenant (other than a Monetary Default) to comply
with any term, provision or covenant of this Lease, which failure
is not cured within thirty (30) days after delivery to Tenant of
notice of the occurrence of such failure provided, however, that
if the term, condition, covenant or obligation to be performed by
Tenant is of such nature that the same cannot reasonably be
performed within such thirty-day period, such default shall be
deemed to have been cured if Tenant commences such performance
within said thirty-day period and thereafter diligently
undertakes to complete the same, and in fact, completes same
within ninety (90) days after notice.
3. Any failure by Tenant to observe or perform any of the covenants
with respect to (a) assignment and subletting set forth in
Section 13, (b) mechanic's liens set forth in Section 14, or (c)
insurance set forth in Section 15 which continues for a period of
ten (10) days after notice.
4. Tenant shall (a) become insolvent, (b) make a transfer in fraud
of creditors (c) make an assignment for the benefit of creditors,
(d) admit in writing its inability to pay its debts as they
become due, (e) file a petition under any section or chapter of
the United States Bankruptcy Code, as amended, pertaining to
bankruptcy, or under any similar law or statute of the United
States or any State thereof, or Tenant or any Guarantor shall be
adjudged bankrupt or insolvent in proceedings filed against
Tenant or any Guarantor thereunder; or a petition or answer
proposing the adjudication of Tenant or any Guarantor as a
bankrupt or its reorganization under any present or future
federal or state bankruptcy or similar law shall be filed in any
court and such petition or answer shall not be discharged, stayed
or denied within ninety (90) days after the filing thereof.
5. A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any Guarantor or of the Premises
or of any of Tenant's property located thereon in any proceeding
brought by Tenant or any Guarantor, or any such receiver or
trustee shall be appointed in any proceeding brought against
Tenant or any Guarantor and shall not be discharged or stayed
within ninety (90) days after such appointment or Tenant or such
Guarantor shall consent to or acquiesce in such appointment.
6. The leasehold estate hereunder shall be taken on execution or
other process of law in any action against Tenant.
7. Tenant shall abandon the Premises for a period of thirty (30)
days or longer other than in connection with the restoration of
the Premises following a casualty or condemnation where Tenant
intends to reoccupy the Premises.
8. Tenant shall fail to take possession of and occupy the Premises
within sixty (60) days following the Commencement Date.
9. The liquidation, termination, dissolution, or forfeiture of right
to do business of Tenant.
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23. REMEDIES.
A. Upon the occurrence of any Event of Default, Landlord shall have the
following rights and remedies, in addition to those allowed by law or
equity, any one or more of which may be exercised without further notice to
or demand upon Tenant and which, to the extent permitted by law, may be
pursued successively or cumulatively as Landlord may elect:
1. Landlord may re-enter the Premises and cure any default of
Tenant, in which event Tenant shall, upon demand, reimburse
Landlord as Additional Rent for any reasonable cost and expenses
which Landlord may incur to cure such default; and Landlord shall
not be liable to Tenant for any loss or damage which Tenant may
sustain by reason of Landlord's action, regardless of whether
caused by Landlord's negligence or otherwise.
2. Landlord may terminate this Lease by giving to Tenant notice of
Landlord's election to do so, in which event the Lease Term shall
end, and all right, title and interest of Tenant hereunder shall
expire, on the date stated in such notice;
3. Landlord may terminate the right of Tenant to possession of the
Premises without terminating this Lease by giving notice to
Tenant that Tenant's right to possession shall end on the date
stated in such notice, whereupon the right of Tenant to
possession of the Premises or any part thereof shall cease on the
date stated in such notice; and
4. Landlord may enforce the provisions of this Lease and may enforce
and protect the rights of Landlord hereunder by a suit or suits
in equity or at law for the specific performance of any covenant
or agreement contained herein, or for the enforcement of any
other appropriate legal or equitable remedy, including recovery
of all moneys due or to become due from Tenant under any of the
provisions of this Lease.
Landlord shall not be required to serve Tenant with any notices or demands
as a prerequisite to its exercise of any of its rights or remedies under
this Lease, other than those notices and demands specifically required
under this Lease. TENANT EXPRESSLY WAIVES THE SERVICE OF ANY STATUTORY
DEMAND OR NOTICE WHICH IS A PREREQUISITE TO LANDLORD'S COMMENCEMENT OF
EVICTION PROCEEDINGS AGAINST TENANT, INCLUDING THE DEMANDS AND NOTICES
SPECIFIED IN THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW OF THE STATE OF
NEW YORK. TENANT WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT BROUGHT
BY LANDLORD TO RECOVER POSSESSION OF THE PREMISES FOLLOWING LANDLORD'S
TERMINATION OF THIS LEASE PURSUANT TO SECTION 23.A.(2) OR THE RIGHT OF
TENANT TO POSSESSION OF THE PREMISES PURSUANT TO SECTION 23.A.(3) AND ON
ANY CLAIM FOR DELINQUENT RENT WHICH LANDLORD MAY JOIN IN ITS LAWSUIT TO
RECOVER POSSESSION.
B. If Landlord exercises either of the remedies provided in Sections
23.A.(2) or 23.A.(3), Tenant shall surrender possession and vacate the
Premises and immediately deliver possession thereof to Landlord, and
Landlord may re-enter and take complete and peaceful possession of the
Premises, with process of law, full and complete license to do so being
hereby granted to Landlord, and Landlord may remove all occupants and
property therefrom, using such force as may be necessary to the extent
allowed by law, without being deemed guilty in any manner of trespass,
eviction or forcible entry and detainer and without relinquishing
Landlord's right to Rent or any other right given to Landlord hereunder or
by operation of law.
C. If Landlord terminates the right of Tenant to possession of the Premises
without terminating this Lease, Landlord shall have the right to immediate
recovery of all amounts then
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due hereunder. Such termination of possession shall not release Tenant, in
whole or in part, from Tenant's obligation to pay Rent hereunder for the
full Term, and Landlord shall have the right, from time to time, to recover
from Tenant, and Tenant shall remain liable for, all Base Rent, Additional
Rent and any other sums accruing as they become due under this Lease during
the period from the date of such notice of termination of possession to the
stated end of the Term. In any such case, Landlord may relet the Premises
or any part thereof for the account of Tenant for such rent, for such time
(which may be for a term extending beyond the Term) and upon such terms as
Landlord shall determine and may collect the rents from such reletting.
Landlord shall not be required to accept any tenant offered by Tenant or to
observe any instructions given by Tenant relative to such reletting. Also,
in any such case, Landlord may make repairs, alterations and additions in
or to the Premises and redecorate the same to the extent deemed by Landlord
necessary or desirable and in connection therewith change the locks to the
Premises, and Tenant within ten (10) days after notice shall pay the cost
of all of the foregoing together with Landlord's reasonable expenses of
reletting. The rents from any such reletting shall be applied first to the
payment of the expenses of reentry, redecoration, repair and alterations
and the expenses of reletting and second to the payment of Rent herein
provided to be paid by Tenant. Any excess or residue shall operate only as
an offsetting credit against the amount of Rent due and owing as the same
thereafter becomes due and payable hereunder, and the use of such
offsetting credit to reduce the amount of Rent due Landlord, if any, shall
not be deemed to give Tenant any right, title or interest in or to such
excess or residue and any such excess or residue shall belong to Landlord
solely, and in no event shall Tenant be entitled to a credit on its
indebtedness to Landlord in excess of the aggregate sum (including Base
Rent and Additional Rent) which would have been paid by Tenant for the
period for which the credit to Tenant is being determined, had no Event of
Default occurred. No such reentry or repossession, repairs, alterations and
additions, or reletting shall be construed as an eviction or ouster of
Tenant or as an election on Landlord's part to terminate this Lease, unless
a written notice of such intention is given to Tenant, or shall operate to
release Tenant in whole or in part from any of Tenant's obligations
hereunder, and Landlord, at any time and from time to time, may sue and
recover judgment for any deficiencies remaining after the application of
the proceeds of any such reletting.
D. If this Lease is terminated by Landlord pursuant to Section 23.A.(2),
Landlord shall be entitled to recover from Tenant all Rent accrued and
unpaid for the period up to and including such termination date, as well as
all other additional sums payable by Tenant, or for which Tenant is liable
or for which Tenant has agreed to indemnify Landlord under any of the
provisions of this Lease, which may be then owing and unpaid, and all costs
and expenses, including without limitation court costs and reasonable
attorneys' fees incurred by Landlord in the enforcement of its rights and
remedies hereunder, and, in addition, Landlord shall be entitled to recover
as damages for loss of the bargain and not as a penalty (i) the unamortized
portion of any concessions offered by Landlord to Tenant in connection with
this Lease, including without limitation Landlord's contribution to the
cost of tenant improvements and alterations, if any, installed by either
Landlord or Tenant pursuant to this Lease or any work letter in connection
with this Lease, (ii) the aggregate sum which at the time of such
termination represents the excess, if any, of the present value of the
aggregate rents which would have been payable after the termination date
had this Lease not been terminated, including, without limitation, Base
Rent at the annual rate or respective annual rates for the remainder of the
Term provided for in this Lease and the amount projected by Landlord to
represent Additional Rent for the remainder of the Term over the then
present value of the then aggregate fair rent value of the Premises for the
balance of the Term, such present worth to be computed in each case on the
basis of a ten percent (10%) per annum discount from the respective dates
upon which such Rents would have been payable hereunder had this Lease not
been terminated, and (iii) any damages in addition thereto, including
without limitation reasonable attorneys' fees and court costs, which
Landlord sustains as a result of the breach of any of the covenants of this
Lease other than for the payment of Rent.
E. Landlord shall use commercially reasonable efforts to mitigate any
damages resulting from an Event of Default by Tenant under this Lease.
Landlord's obligation to mitigate damages after an Event of Default by
Tenant under this Lease shall be satisfied in full if Landlord
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undertakes to lease the Premises to another tenant (a "SUBSTITUTE TENANT")
in accordance with the following criteria:
1. Landlord shall have no obligations to solicit or entertain
negotiations with any other prospective tenants for the Premises
until Landlord obtains full and complete possession of the
Premises including, without limitation, the final and
unappealable legal right to relet the Premises free of any claim
of Tenant;
2. Landlord shall not be obligated to lease or show the Premises, on
a priority basis, offer the Premises to a prospective tenant when
other premises in the Building suitable for that prospective
tenant's use are (or soon will be) available;
3. Landlord shall not be obligated to lease the Premises to a
Substitute Tenant for a Rent less than the current fair market
Rent then prevailing for similar uses in comparable buildings in
the same market area as the Building, nor shall Landlord be
obligated to enter into a new lease under other terms and
conditions that are unacceptable to Landlord under Landlord's
then current leasing policies for comparable space in the
Building;
4. Landlord shall not be obligated to enter into a lease with a
Substitute Tenant whose use would:
a. violate any restriction, covenant, or requirement contained
in the lease of another tenant of the Building;
b. adversely affect the reputation of the Building; or
c. be incompatible with the operation of the Building as an
office building;
5. Landlord shall not be obligated to enter into a lease with any
proposed Substitute Tenant which does not have, in Landlord's
reasonable opinion, sufficient financial resources to operate the
Premises in a first class manner; and
6. Landlord shall not be required to expend any amount of money to
alter, remodel, or otherwise make the Premises suitable for use
by a proposed Substitute Tenant unless:
a. Tenant pays any such sum to Landlord in advance of
Landlord's execution of a lease with such tenant (which
payment shall not be in lieu of any damages or other sums to
which Landlord may be entitled as a result of Tenant's
default under this Lease); or
b. Landlord, in Landlord's reasonable discretion, determines
that any such expenditure is financially justified in
connection with entering into any such substitute lease.
F. All property of Tenant removed from the Premises by Landlord pursuant to
any provision of this Lease or applicable law may be handled, removed or
stored by Landlord at the cost and expense of Tenant, and Landlord shall
not be responsible in any event for the value, preservation or safekeeping
thereof. Tenant shall pay Landlord for all reasonable expenses incurred by
Landlord with respect to such removal and storage so long as the same is in
Landlord's possession or under Landlord's control. All such property not
removed from the Premises or retaken from storage by Tenant within thirty
(30) days after the end of the Term or the termination of Tenant's right to
possession of the Premises, however terminated, at Landlord's option, shall
be
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conclusively deemed to have been conveyed by Tenant to Landlord as by bill
of sale without further payment or credit by Landlord to Tenant.
G. If Tenant is adjudged bankrupt, or a trustee in bankruptcy is appointed
for Tenant, Landlord and Tenant, to the extent permitted by law, agree to
request that the trustee in bankruptcy determine within sixty (60) days
thereafter whether to assume or to reject this Lease.
H. The receipt by Landlord of less than the full rent due shall not be
construed to be other than a payment on account of rent then due, nor shall
any statement on Tenant's check or any letter accompanying Tenant's check
be deemed an accord and satisfaction, and Landlord may accept such payment
without prejudice to Landlord's right to recover the balance of the rent
due or to pursue any other remedies provided in this lease. The acceptance
by Landlord of rent hereunder shall not be construed to be a waiver of any
breach by Tenant of any term, covenant or condition of this Lease. No act
or omission by Landlord or its employees or agents during the Lease Term of
this Lease shall be deemed an acceptance of a surrender of the Premises,
and no agreement to accept such a surrender shall be valid unless in
writing and signed by Landlord.
I. In the event of any litigation between Tenant and Landlord to enforce
any provision of this Lease or any right of either party hereto, the
unsuccessful party to such litigation shall pay to the successful party all
costs and expenses, including reasonable attorney's fees, incurred therein.
Furthermore, if Landlord, without fault, is made a party to any litigation
instituted by or against Tenant, Tenant shall indemnify Landlord against,
and protect, defend, and save it harmless from, all costs and expenses,
including reasonable attorney's fees, incurred by it in connection
therewith. If Tenant, without fault, is made party to any litigation
instituted by or against Landlord, Landlord shall indemnify Tenant against,
and protect, defend, and save it harmless from, all costs and expenses,
including reasonable attorney's fees, incurred by it in connection
therewith.
J. Landlord and Tenant each waive trial by jury in any action, proceeding
or counterclaim brought by either of them against the other on any matters
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant or Tenant's use or occupancy of the Premises or the
operation, maintenance or control of the Building. Tenant shall not
interpose any counterclaim it may otherwise assert in any summary
proceeding whether such summary proceeding is based on nonpayment of Rents
or on Tenant's holding over after expiration of the Lease Term or on any
other basis pursuant to Article 7 of the Real Property Actions and
Proceedings Law of the State of New York, unless by not interposing such
counterclaim Tenant would be barred from asserting such counterclaim in a
separate action or proceeding.
24. NO WAIVER. Failure of Landlord to declare any default immediately upon its
occurrence, or delay in taking any action in connection with an event of
default, shall not constitute a waiver of such default, nor shall it constitute
an estoppel against Landlord, but Landlord shall have the right to declare the
default at any time and take such action as is lawful or authorized under this
Lease. Failure by Landlord to enforce its rights with respect to any one default
shall not constitute a waiver of its rights with respect to any subsequent
default.
25. PEACEFUL ENJOYMENT. Tenant shall, and may peacefully have, hold, and enjoy
the Premises, subject to the other terms hereof, provided that Tenant pays the
Rent and other sums herein recited to be paid by Tenant and performs all of
Tenant's covenants and agreements herein contained. This covenant and any and
all other covenants of Landlord shall be binding upon Landlord and its
successors only with respect to breaches occurring during its or their
respective periods of ownership of the Landlord's interest hereunder.
26. [RESERVED.]
27. HOLDING OVER. In the event of holding over by Tenant after expiration or
other termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Section 23.A.(3) hereof, occupancy of the Premises subsequent to such
termination or expiration shall be that of a tenancy at sufferance and in no
event for month-to-month or year-to-year.
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Tenant shall, throughout the entire holdover period, be subject to all the terms
and provisions of this Lease and shall pay for its use and occupancy an amount
(on a per month basis without reduction for any partial months during any such
holdover) equal to one and one half the sum (or 150%) of the Base Rent and
Additional Rent which would have been applicable had the Lease Term continued
through the period of such holding over by Tenant. No holding over by Tenant or
payments of money by Tenant to Landlord after the expiration of the Lease Term
shall be construed to extend the Lease Term or prevent Landlord from recovery of
immediate possession of the Premises by summary proceedings or otherwise unless
Landlord has sent written notice to Tenant that Landlord has elected to extend
the Lease Term. In addition to the obligation to pay the amounts set forth above
during any such holdover period, Tenant shall also be liable to Landlord for all
damages, including, without limitation, any consequential damages, which
Landlord may suffer by reason of any holding over by Tenant and Tenant shall
also indemnify Landlord against any and all claims made by any other tenant or
prospective tenant against Landlord for delay by Landlord in delivering
possession of the Premises to such other tenant or prospective tenant. Tenant
waives any rights under Section 2201 of the Civil Practice Law and Rules of the
State of New York in connection with any holdover proceedings that Landlord may
institute against Tenant.
28. SUBORDINATION TO MORTGAGE/ESTOPPEL CERTIFICATE. Tenant accepts this Lease
subject and subordinate to any mortgage, deed of trust or other lien presently
existing or hereafter arising upon the Premises, or upon the Building and/or the
Property and to any renewals, modifications, refinancings and extensions
thereof, but Tenant agrees that any such mortgagee shall have the right at any
time to subordinate such mortgage, deed of trust or other lien to this Lease on
such terms and subject to such conditions as such mortgagee may deem appropriate
in its discretion. The provisions of the foregoing sentence shall be
self-operative and no further instrument of subordination shall be required.
However, Landlord is hereby irrevocably vested with full power and authority to
subordinate this Lease to any mortgage, deed of trust or other lien now existing
or hereafter placed upon the Premises, or the Building and/or the Property and
Tenant agrees within twenty (20) days after demand to execute such further
instruments subordinating this Lease or attorning to the holder of any such
liens as Landlord may request. In the event that Tenant should fail to execute
any subordination or other agreement required by this Section promptly as
requested, Tenant hereby irrevocably constitutes Landlord as its
attorney-in-fact to execute such instrument in Tenant's name, place and stead,
it being agreed that such power is one coupled with an interest in Landlord and
is accordingly irrevocable. Tenant agrees that it will from time-to-time upon
request by Landlord execute and deliver to such persons as Landlord shall
request a statement in recordable form certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as so modified), stating the dates to which rent and
other charges payable under this Lease have been paid, stating that Landlord is
not in default hereunder (or if Tenant alleges a default stating the nature of
such alleged default) and further stating such other matters as Landlord shall
reasonably require. Landlord and Tenant agree periodically to furnish within
twenty (20) days after so requested by the other party, ground lessor or the
holder of any deed of trust, mortgage or security agreement covering the
Building, the Property, or any interest of Landlord therein, a certificate
signed by such party certifying (a) that this Lease is in full force and effect
and unmodified (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), (b) as to the
Commencement Date and the date through which Base Rent and Tenant's Additional
Rent have been paid, (c) that Tenant has accepted possession of the Premises and
that any improvements required by the terms of this Lease to be made by Landlord
have been completed to the satisfaction of Tenant, (d) that except as stated in
the certificate no rent has been paid more than thirty (30) days in advance of
its due date, (e) that the address for notices to be sent to Landlord or Tenant
is as set forth in this Lease (or has been changed by notice duly given and is
as set forth in the certificate), (f) that except as stated in the certificate,
Tenant, as of the date of such certificate, has no charge, lien, or claim of
offset against rent due or to become due, (g) that except as stated in the
certificate, Landlord is not then in default under this Lease, (h) as to the
amount of the Approximate Rentable Area of the Premises then occupied by Tenant,
(i) that there are no renewal or extension options, purchase options, rights of
first refusal or the like in favor of Tenant except as set forth in this Lease,
(j) the amount and nature of accounts payable to Landlord under terms of this
Lease, and (k) as to such other matters as may be reasonably requested by such
party or ground lessor or the holder of any such deed of trust, mortgage or
security agreement. Any such certificate may be relied upon by any ground
lessor, prospective purchaser, secured party, mortgagee or any beneficiary under
any mortgage, deed of trust on the Building or the Property or any part thereof
or interest of Landlord therein.
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29. NOTICE. Any notice required or permitted to be given under this Lease or by
law shall be deemed to have been given if it is written and delivered in person
or mailed by Registered or Certified mail, postage prepaid, or sent by a
nationally recognized overnight delivery service to the party who is to receive
such notice at the address specified in Section 1.Q. of this Lease. When so
mailed, the notice shall be deemed to have been given two (2) business days
after the date it was mailed. When sent by overnight delivery service, the
notice shall be deemed to have been given on the next business day after deposit
with such overnight delivery service. The address specified in Section 1.Q. of
this Lease may be changed from time to time by giving written notice thereof to
the other party.
30. SURRENDER OF PREMISES. Upon the termination, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of this Lease, Tenant will at once surrender possession and vacate
the Premises, together with all Leasehold Improvements (except those Leasehold
Improvements Tenant is required to remove pursuant to Section 8 hereof), to
Landlord in good condition and repair, ordinary wear and tear excepted;
conditions existing because of Tenant's failure to perform maintenance, repairs
or replacements as required of Tenant under this Lease shall not be deemed
"reasonable wear and tear." Tenant shall surrender to Landlord all keys to the
Premises and make known to Landlord the explanation of all combination locks
which Tenant is permitted to leave on the Premises. Subject to the Landlord's
rights under Section 23 hereof, if Tenant fails to remove any of Tenant's
Property within ten (10) days after the termination of this Lease, or Tenant's
right to possession hereunder, Landlord, at Tenant's sole cost and expenses,
shall be entitled to remove and/or store such Tenant's Property and Landlord
shall be in no event be responsible for the value, preservation or safekeeping
thereof. Tenant shall pay Landlord, upon demand, any and all reasonable expenses
caused by such removal and all storage charges against such property so long as
the same shall be in possession of Landlord or under the control of Landlord. In
addition, if Tenant fails to remove any Tenant's Property from the Premises or
storage, as the case may be, within ten (10) days after written notice from
Landlord, Landlord, at its option, may deem all or any part of such Tenant's
Property to have been abandoned by Tenant and title thereof shall immediately
pass to Landlord under this Lease as by a bill of sale.
31. RIGHTS RESERVED TO LANDLORD. Landlord reserves the following rights,
exercisable without notice, except as provided herein, and without liability to
Tenant for damage or injury to property, person or business and without
affecting an eviction or disturbance of Tenant's use or possession or giving
rise to any claim for setoff or abatement of rent or affecting any of Tenant's
obligations under this Lease: (1) upon thirty (30) days' prior notice to change
the name or street address of the Building; (2) to install and maintain signs on
the exterior and interior of the Building; (3) to designate and approve window
coverings to present a uniform exterior appearance; (4) to make any decorations,
alterations, additions, improvements to the Building or Property, or any part
thereof (including, with prior notice, the Premises) which Landlord shall
desire, or deem necessary for the safety, protection, preservation or
improvement of the Building or Property, or as Landlord may be required to do by
law; (5) to retain at all times and to use in appropriate instances, pass keys
to all locks within and to the Premises; (6) to reasonably approve the weight,
size, or location of heavy equipment, or articles within the Premises; (7) to
close or restrict access to the Building at all times other than Normal Business
Hours subject to Tenant's right to admittance at all times under such
regulations as Landlord may prescribe from time to time, or to close temporarily
any of the entrances to the Building; provided Landlord shall have the right to
restrict or prohibit access to the Building or the Premises at any time Landlord
determines it is necessary to do so to minimize the risk of injuries or death to
persons or damage to property; (8) to reasonably change the arrangement and/or
location of entrances of passageways, doors and doorways, corridors, elevators,
stairs, toilets and public parts of the Building or Property; (9) to reasonably
regulate access to telephone, electrical and other utility closets in the
Building and to require use of designated contractors for any work involving
access to the same; (10) if Tenant has vacated the Premises during the last six
(6) months of the Lease Term, to perform additions, alterations and improvements
to the Premises in connection with a reletting or anticipated reletting thereof
without being responsible or liable for the value or preservation of any then
existing improvements to the Premises; and (11) to grant to anyone the exclusive
right to conduct any business or undertaking in the Building, provided that the
party providing such service does so at competitive rates and provided
Landlord's exercise of its rights under this clause 11, shall not be deemed to
prohibit Tenant from the operation of its business in the Premises and shall not
constitute a constructive eviction.
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32. MISCELLANEOUS.
A. If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term
or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
B. Tenant agrees not to record this Lease or any short form or memorandum
hereof.
C. This Lease and the rights and obligations of the parties hereto shall be
interpreted, construed, and enforced in accordance with the laws of the
state in which the Building is located.
D. Events of "FORCE MAJEURE" shall include strikes, riots, acts of God,
shortages of labor or materials, war, governmental laws, regulations or
restrictions, or any other cause whatsoever beyond the control of Landlord
or Tenant, as the case may be. Whenever a period of time is herein
prescribed for the taking of any action by Landlord or Tenant (other than
the payment of Rent and all other such sums of money as shall become due
hereunder), such party shall not be liable or responsible for, there shall
be excluded from the computation of such period of time, any delays due to
events of Force Majeure.
E. Except as expressly otherwise herein provided, with respect to all
required acts of Tenant, time is of the essence of this Lease.
F. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations hereunder and in the Building and
Property referred to herein, and in such event and upon such transfer
Landlord shall be released from any further obligations hereunder, and
Tenant agrees to look solely to such successor in interest of Landlord for
the performance of such obligations.
G. Tenant hereby represents to Landlord that it has dealt directly with and
only with the Broker as a broker in connection with this Lease. Landlord
and Tenant hereby indemnify and hold each other harmless against any loss,
claim, expense or liability with respect to any commissions or brokerage
fees claimed on account of the execution and/or renewal of this Lease due
to any action of the indemnifying party. Landlord shall be responsible for
the payment of any commission or fee due to the Broker.
H. If there is more than one Tenant, or if the Tenant as such is comprised
of more than one person or entity, the obligations hereunder imposed upon
Tenant shall be joint and several obligations of all such parties. All
notices, payments, and agreements given or made by, with or to any one of
such persons or entities shall be deemed to have been given or made by,
with or to all of them.
I. The individual signing this Lease on behalf of Tenant represents (1)
that such individual is duly authorized to execute or attest and deliver
this Lease on behalf of Tenant in accordance with the organizational
documents of Tenant; (2) that this Lease is binding upon Tenant; (3) that
Tenant is duly organized and legally existing in the state of its
organization, and is qualified to do business in the state in which the
Premises is located.
J. Tenant acknowledges that the financial capability of Tenant to perform
its obligations hereunder is material to Landlord and that Landlord would
not enter into this Lease but for its belief, based on its review of
Tenant's financial statements, that Tenant is capable of performing such
financial obligations. Tenant hereby represents, warrants and certifies to
Landlord that its financial statements previously furnished to Landlord
were at the time given true and correct in all material respects and that
there have been no material subsequent changes thereto as of the date of
this Lease.
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K. Notwithstanding anything to the contrary contained in this Lease, the
expiration of the Lease Term, whether by lapse of time or otherwise, shall
not relieve either party from its obligations accruing prior to the
expiration of the Lease Term, and such obligations shall survive any such
expiration or other termination of the Lease Term.
L. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery hereof does not constitute an offer to Tenant
or an option. This Lease shall not be effective until an original of this
Lease executed by both Landlord and Tenant and an original Guaranty, if
applicable, executed by each Guarantor is delivered to and accepted by
Landlord, and this Lease has been approved by Landlord's mortgagee, if
required.
M. Landlord and Tenant understand, agree and acknowledge that (i) this
Lease has been freely negotiated by both parties; and (ii) in any
controversy, dispute or contest over the meaning, interpretation, validity,
or enforceability of this Lease or any of its terms or conditions, there
shall be not inference, presumption, or conclusion drawn whatsoever against
either party by virtue of that party having drafted this Lease or any
portion thereof.
N. The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no affect upon the construction or
interpretation of any part hereof.
O. Receipt by Landlord of Tenant's keys to the Premises shall not
constitute an acceptance of surrender of the Premises.
P. This Lease shall be governed by, and be construed in accordance with,
the laws of the State of New York without regard to the principles of
conflicts of laws. To the fullest extent permitted by law, Landlord and
Tenant hereby unconditionally and irrevocably waive any claims to assert
that the law of any other jurisdiction governs this Lease and agrees that
this Lease shall be governed by and construed in accordance with the laws
of the State of New York pursuant to Section 5-1401 of the New York General
Obligations Law. Any legal suit, action or proceeding against Tenant or
Landlord arising out of or relating to this Lease may be instituted in any
federal or state court in New York, New York having subject matter
jurisdiction, pursuant to Section 5-1402 of the New York General
Obligations Law, and Landlord and Tenant hereby waive any objection which
they may now or hereafter have to the laying of venue of any such suit,
action or proceeding including, without limitation, any claim of forum non
conveniens pursuant to any rule of common law and/or any applicable federal
or state statute, law or provision, and Landlord and Tenant hereby
irrevocably submit to the jurisdiction of any such court in any suit,
action or proceeding.
Q. Landlord represents that, to the best of Landlord's knowledge, Landlord
has received no violations with respect to the Building which will delay
the construction of Tenant's Initial Alterations.
R. Attached hereto as Exhibit H is the certificate of occupancy for the
Building.
S. Landlord shall provide risers to the Premises for redundant internet
access from the roof and the basement of the Building.
T. Tenant shall have the right use the roof of the Building for a satellite
dish or other similar equipment, subject to available space on the roof.
Tenant acknowledges that Tenant shall enter into in agreement for the use
of such roof space with Landlord's then current licensor with respect to
such matters, and Tenant shall pay Landlord's (or the licensor's) then
current fees for the use of such roof space.
33. ENTIRE AGREEMENT. This Lease, including the following Exhibits:
Exhibit A - Outline and Location of Premises
Exhibit B - Rules and Regulations
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Exhibit C - Payment of Taxes
Exhibit D - Work Letter
Exhibit E - Commencement Letter (Sample)
Exhibit F - Porter's Wage Payments
Exhibit G - Cleaning Specifications
Exhibit H - Certificate of Occupancy
constitutes the entire agreement between the parties hereto with respect to the
subject matter of this Lease and supersedes all prior agreements and
understandings between the parties related to the Premises, including all lease
proposals, letters of intent and similar documents. Tenant expressly
acknowledges and agrees that Landlord has not made and is not making, and
Tenant, in executing and delivering this Lease, is not relying upon, any
warranties, representations, promises or statements, except to the extent that
the same are expressly set forth in this Lease. All understandings and
agreements heretofore had between the parties are merged in this Lease which
alone fully and completely expresses the agreement of the parties, neither party
relying upon any statement or representation not embodied in this Lease. This
Lease may be modified only be a written agreement signed by Landlord and Tenant.
Landlord and Tenant expressly agree that there are and shall be no implied
warranties of merchantability, habitability, suitability, fitness for a
particular purpose or of any other kind arising out of this Lease, all of which
are hereby waived by Tenant, and that there are no warranties which extend
beyond those expressly set forth in this Lease.
34. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT SPECIFICALLY ADDRESSED HEREIN,
TENANT SHALL NOT HAVE THE RIGHT TO AN ABATEMENT OF RENT OR TO TERMINATE THIS
LEASE AS A RESULT OF LANDLORD'S DEFAULT AS TO ANY COVENANT OR AGREEMENT
CONTAINED IN THIS LEASE OR AS A RESULT OF THE BREACH OF ANY PROMISE OR
INDUCEMENT IN CONNECTION HEREWITH, WHETHER IN THIS LEASE OR ELSEWHERE AND TENANT
HEREBY WAIVES SUCH REMEDIES OF ABATEMENT OF RENT AND TERMINATION. TENANT HEREBY
AGREES THAT TENANT'S REMEDIES FOR DEFAULT HEREUNDER OR IN ANY WAY ARISING IN
CONNECTION WITH THIS LEASE INCLUDING ANY BREACH OF ANY PROMISE OR INDUCEMENT OR
WARRANTY, EXPRESSED OR IMPLIED, SHALL BE LIMITED TO SUIT FOR DIRECT AND
PROXIMATE DAMAGES PROVIDED THAT TENANT HAS GIVEN THE NOTICES AS HEREIN REQUIRED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY
OF LANDLORD TO TENANT FOR ANY DEFAULT BY LANDLORD UNDER THIS LEASE SHALL BE
LIMITED TO THE INTEREST OF LANDLORD IN THE BUILDING AND THE PROPERTY AND THE
PROCEEDS THEREOF AND TENANT AGREES TO LOOK SOLELY TO LANDLORD'S INTEREST IN THE
BUILDING AND THE PROPERTY AND THE PROCEEDS THEREOF FOR THE RECOVERY OF ANY
JUDGMENT AGAINST THE LANDLORD, IT BEING INTENDED THAT LANDLORD SHALL NOT BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. TENANT HEREBY COVENANTS THAT,
PRIOR TO THE FILING OF ANY SUIT FOR DIRECT AND PROXIMATE DAMAGES, IT SHALL GIVE
LANDLORD AND ALL MORTGAGEES WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED
OF TRUST LIENS ON THE PROPERTY, BUILDING OR PREMISES ("LANDLORD MORTGAGEES")
NOTICE AND REASONABLE TIME TO CURE ANY ALLEGED DEFAULT BY LANDLORD.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in multiple
original counterparts as of the day and year first above written.
LANDLORD:
TRANSWESTERN LEXINGTON, LLC
By: /s/ RANDALL BESSOLO
-----------------------------------------
Name: Randall S. Bessolo
---------------------------------------
Title: Managing Director
--------------------------------------
TENANT:
FUTURELINK CORP.
By: /s/ RICHARD WHITE
-----------------------------------------
Name: R.M. White
---------------------------------------
Title: Senior V.P. Admin.
--------------------------------------
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EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
This Exhibit is attached to and made a part of the Lease dated August 8, 2000
by and between TRANSWESTERN LEXINGTON, LLC ("LANDLORD") and FUTURELINK CORP., a
Delaware corporation ("TENANT") for space in the Building located at 360
Lexington Avenue, New York, New York.
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EXHIBIT B
RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage associated therewith (if any), the
Property and the appurtenances thereto:
1. Sidewalks, entrances, passageways, courts, corridors, vestibules, halls,
elevators and stairways in and about the Building shall not be obstructed
nor shall objects be placed against glass partitions, doors or windows
which would be unsightly from the Building's corridors from the exterior of
the Building.
2. Plumbing, fixtures and appliances shall be used for only the purpose for
which they were designed and no foreign substance of any kind whatsoever
shall be thrown or placed therein. Damage resulting to any such fixtures or
appliances from misuse by Tenant or its agents, employees or invitees,
shall be paid for by Tenant and Landlord shall not in any case be
responsible therefor.
3. Any sign, lettering, picture, notice, advertisement installed within the
Premises which is visible from the public corridors within the Building
shall be installed in such manner, and be of such character and style, as
Landlord shall approve, in writing in its reasonable discretion. No sign,
lettering, picture, notice or advertisement shall be placed on any outside
window or door or in a position to be visible from outside the Building. No
nails, hooks or screws (except for customary artwork or wall hangings)
shall be driven or inserted into any part of the Premises or Building
except by Building maintenance personnel, nor shall any part of the
Building be defaced or damaged by Tenant.
4. Tenant shall not place any additional lock or locks on any door in the
Premises or Building without Landlord's prior written consent which shall
not be unreasonably withheld. A reasonable number of keys to the locks on
the doors in the Premises shall be furnished by Landlord to Tenant at the
cost of Tenant, and Tenant shall not have any duplicate keys made. All keys
and passes shall be returned to Landlord at the expiration or earlier
termination of this Lease.
5. Tenant shall refer all contractors, contractors representatives and
installation technicians for Landlord for Landlord's supervision, approval
and control before the performance of any contractual services which shall
not be unreasonably withheld. This provision shall apply to all work
performed in the Building including, but not limited to installation of
telephones, telegraph equipment, electrical devices and attachments, doors,
entranceways, and any and all installations of every nature affecting
floors, walls, woodwork, window trim, ceilings, equipment and any other
physical portion of the Building. Tenant shall not waste electricity, water
or air conditioning. All controls shall be adjusted only by Building
personnel.
6. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which require
the use of elevators, stairways, lobby areas, or loading dock areas, shall
be restricted to hours reasonably designated by Landlord. Tenant must seek
Landlord's prior approval by providing in writing a detailed listing of
such activity. If approved by Landlord, such activity shall be under the
supervision of Landlord and performed in the manner stated by Landlord.
Landlord may prohibit any article, equipment or any other item from being
brought into the Building. Tenant is to assume all risk for damage to
articles moved and injury to persons resulting from such activity. If any
equipment, property and/or personnel of Landlord or of any other tenant is
damaged or injured as a result of or in connection with such activity,
Tenant shall be solely liable for any and all damage or loss resulting
therefrom.
7. All corridor doors, when not in use, shall remain closed. Tenant shall
cause all doors to the Premises to be closed and securely locked before
leaving the Building at the end of the day.
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8. Tenant shall keep all electrical and mechanical apparatus owned by Tenant
free of vibration, noise and airwaves which may be transmitted beyond the
Premises.
9. Canvassing, soliciting and peddling in or about the Building or Property is
prohibited. Tenant shall cooperate and use its best efforts to prevent the
same.
10. Tenant shall not use the Premises in any manner which would overload the
standard heating, ventilating or air conditioning systems of the Building.
11. Tenant shall not utilize any equipment or apparatus in such manner as to
create any magnetic fields or waves which adversely affect or interfere
with the operation of any systems or equipment in the Building or Property.
12. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
13. Tenant shall not operate or permit to be operated on the Premises any coin
or token operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusements devices and
machines for sale of beverages, foods, candy, cigarettes or other goods),
except for those vending machines or similar devices which are for the sole
and exclusive use of Tenant's employees, and then only if such operation
does not violate the lease of any other tenant in the Building.
14. Tenant shall utilize the termite and pest extermination service designated
by Landlord to control termites and pests in the Premises. Tenant shall
bear the cost and expense of such extermination services provided such cost
is customary and reasonable.
15. Tenant shall not open or permit to be opened any window in the Premises.
This provision shall not be construed as limiting access of Tenant to any
balcony adjoining the Premises.
16. To the extent permitted by law, Tenant shall not permit picketing or other
union activity involving its employees or agents in the Building or on the
Property, except in those locations and subject to time and other
constraints as to which Landlord may give its prior written consent, which
consent may be withheld in Landlord' sole discretion.
17. Tenant shall not make or permit any use of the Premises, the Building or
the Property, respectively, which is directly or indirectly forbidden by
law, ordinance, governmental regulation or order, or direction of
applicable public authority, or which may be dangerous to person or
property.
18. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or future
value of the Premises, the Building or the Property; without limiting the
foregoing, Tenant shall not use or permit the Premises or any portion
thereof to be used for lodging, sleeping or for any illegal purpose.
19. All deliveries to or from the Premises shall be made only at times, in the
areas and through the entrances and exits designated for such purposes by
Landlord. Tenant shall not permit the process of receiving deliveries to or
from the Premises outside of said areas or in a manner which may interfere
with the use by any other tenant of its premises or any common areas, any
pedestrian use of such area, or any use which is inconsistent with good
business practice.
20. Tenant shall carry out Tenant's permitted repair, maintenance, alterations,
and improvements in the Premises only during times agreed to in advance by
Landlord and in a manner which will not interfere with the rights of other
tenants in the Building.
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<PAGE> 36
21. Landlord may from time to time adopt appropriate systems and procedures for
the security or safety of the Building, its occupants, entry and use, or
its contents. Tenant, Tenant's agents, employees, contractors, guests and
invitees shall comply with Landlord's reasonable requirements thereto.
22. Landlord shall have the right to prohibit the use of the name of the
Building by Tenant that in Landlord's opinion may tend to impair the
reputation of the Building or its desirability for Landlord or its other
tenants. Upon written notice from Landlord, Tenant will refrain from and/or
discontinue such publicity immediately.
23. Neither Tenant nor any of its employees, agents, contractors, invitees or
customers shall smoke in any area designated by Landlord (whether through
the posting of a "no smoking" sign or otherwise) as a "no smoking" area. In
no event shall Tenant or any of its employees, agents, contractors,
invitees or customers smoke in the hallways or bathrooms of the Building.
Landlord reserves the right to designate, from time to time, additional
areas of the Building and the Property as "no smoking" areas and to
designate the entire Building and the Property as a "no smoking" area.
B-3
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EXHIBIT C
PAYMENT OF TAXES
This Exhibit is attached to and made a part of the Lease dated August 8, 2000
by and between TRANSWESTERN LEXINGTON, LLC ("LANDLORD") and FUTURELINK CORP.
("TENANT") for space in the Building located at 360 Lexington Avenue, New York,
New York.
A. During each calendar year, or portion thereof, falling within the Lease Term,
Tenant shall pay to Landlord as Additional Rent hereunder Tenant's Pro Rata
Share of the amount by which (a) Taxes (as defined below) for the applicable
calendar year exceeds Taxes (as finally determined following any tax reduction
proceedings) for the Tax Year (as defined below) beginning on July 1, 2000 and
ending on June 30, 2001 (the "BASE YEAR"). In no event shall the amount required
to be paid by Tenant with respect to Taxes for any calendar year during the
Lease Term be less than zero. Prior to January 1 of each calendar year during
the Lease Term, or as soon thereafter as practical, Landlord shall make a good
faith estimate of Taxes for the applicable full or partial calendar year (based
on the Taxes due or to become due during the current fiscal Tax Year) and
Tenant's Pro Rata Share thereof. On or before the first day of each month during
such calendar year, Tenant shall pay Landlord, as Additional Rent, a monthly
installment equal to one-twelfth of Tenant's Pro Rata Share of Landlord's
estimate of the amount by which Taxes for such calendar year are estimated to
exceed Taxes for the Base Year. Landlord shall have the right from time to time
during any such calendar year to revise the estimate of Taxes for such year and
provide Tenant with a revised statements therefor (provided, however, Landlord
agrees that Landlord shall not issue a revised statement more than twice in any
calendar year), and thereafter the amount Tenant shall pay each month shall be
based upon such revised estimate. If Landlord does not provide Tenant with an
estimate of the Taxes by January 1 of any calendar year, Tenant shall continue
to pay a monthly installment based on the previous year's estimate until such
time as Landlord provides Tenant with an estimate of Taxes for the current year.
Upon receipt of such current year's estimate, an adjustment shall be made for
any month during the current year with respect to which Tenant paid monthly
installments of Additional Rent based on the previous year's estimate. Tenant
shall pay Landlord for any underpayment within thirty (30) days of demand. Any
overpayment in excess of the equivalent of one (1) month's Base Rent shall, at
Landlord's option, be refunded to Tenant or credited against the installment(s)
of Additional Rent next coming due under the Lease. Any overpayment in an amount
equal to or less than the equivalent of one (1) month's Base Rent shall, at
Landlord's option, be refunded to Tenant or credited against the installment of
Additional Rent due for the month immediately following the furnishing of such
estimate. Any amount paid by Tenant based on any estimate shall be subject to
adjustment pursuant to Paragraph B below, when actual Taxes are determined for
the relevant Tax Year.
B. As soon as is practical following the end of any calendar year during the
Lease Term, Landlord shall furnish to Tenant a statement of Landlord's actual
Taxes for such previous calendar year. If the Additional Rent collected with
respect to such calendar year, as a result of Landlord's estimate of Taxes, is
in excess of Tenant's Pro Rata Share of Taxes for such prior year, then Landlord
shall refund to Tenant any overpayment (or at Landlord's option apply such
amount against Additional Rent due or to become due hereunder). Likewise, Tenant
shall pay to Landlord, on demand, any underpayment with respect to the prior
year whether or not this Lease has terminated prior to receipt by Tenant of a
statement for such underpayment, it being understood that this clause shall
survive the expiration of this Lease.
C. As used herein, "TAXES" shall mean (a) all real estate taxes and assessments
on the Property, the Building or the Premises, and taxes and assessments levied
in express substitution or supplementation in whole or in part of such taxes,
(b) all personal property taxes for the Building's personal property, including
license expenses, (c) all taxes, assessments or charges imposed upon the
Building by any business improvement district (BID) to which the Building is or
becomes subject during the Lease Term, and (d) all other taxes, fees or
assessments now or hereafter levied by any governmental authority on the
Property, the Building or its contents or on the operation and use thereof
(except as relate to specific tenants), but excluding penalties, late charges
for fines imposed against Landlord with respect to Taxes, any federal income
tax, New York State franchise tax or income tax, New York City general
corporation or
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<PAGE> 38
unincorporated business tax, or any estate, inheritance, succession, capital
stock, transfer mortgage recording taxes. Capital gains, gift or gross receipts
tax levied upon Landlord. Estimates of real estate taxes and assessments for any
calendar year during the Lease Term shall be determined based on Landlord's good
faith estimate of the real estate taxes and assessments. Taxes and assessments
hereunder are those accrued with respect to such calendar year, as opposed to
the real estate taxes and assessments paid or payable for such calendar year.
D. As used herein, "TAX YEAR" shall mean the fiscal tax year for the City of New
York, which begins on July 1 of each year and ends on June 30, of the following
year.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of the day
and year first above written.
LANDLORD:
TRANSWESTERN LEXINGTON, LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
TENANT:
FUTURELINK CORP.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
C-2
<PAGE> 39
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated the 8th day of
August, 2000, by and between TRANSWESTERN LEXINGTON, LLC ("LANDLORD") and
FUTURELINK CORP. ("TENANT") for space in the Building located at 360 Lexington
Avenue, New York, New York.
Alterations and Allowance.
Tenant, following the delivery of the Premises by Landlord and the full and
final execution and delivery of this Lease and all prepaid Rent and security
deposits required hereunder, shall have the right to perform alterations and
improvements in the Premises (the "INITIAL ALTERATIONS"). Notwithstanding the
foregoing, Tenant and its contractors shall not have the right to perform
Initial Alterations in the Premises unless and until Tenant has complied with
all of the terms and conditions of Article 10.B. of this Lease, including,
without limitation, approval by Landlord of the final plans for the Initial
Alterations and the contractors to be retained by Tenant to perform such Initial
Alterations which approval shall not be unreasonably withheld or delayed. Tenant
shall be responsible for all elements of the design of Tenant's plans
(including, without limitation, compliance with law, functionality of design,
the structural integrity of the design, the configuration of the premises and
the placement of Tenant's furniture, appliances and equipment), and Landlord's
approval of Tenant's plans shall in no event relieve Tenant of the
responsibility for such design. Landlord's approval of the contractors to
perform the Initial Alterations shall not be unreasonably withheld or delayed.
The parties agree that Landlord's approval of the general contractor to perform
the Initial Alterations shall not be considered to be unreasonably withheld if
any such general contractor (i) does not have trade references reasonably
acceptable to Landlord, (ii) does not maintain insurance as required pursuant to
the terms of this Lease, (iii) does not have the ability to be bonded for the
work in an amount of no less than $1,000,000, or (iv) is not licensed as a
contractor in the state/municipality in which the Premises is located. Tenant
acknowledges the foregoing is not intended to be an exclusive list of the
reasons why Landlord may reasonably withhold its consent to a general
contractor.
Provided Tenant is not in default, Landlord agrees to contribute the sum of One
Hundred One Thousand Two Hundred Sixty Nine Dollars ($101,269.00) (the
"ALLOWANCE") toward the cost of performing the Initial Alterations in
preparation of Tenant's occupancy of the Premises. Eighty percent (80%) or more
of the Allowance shall be used for hard costs in connection with the Initial
Alterations. The Allowance, less a 10% retainage (which retainage shall be
payable as part of the final draw), shall be paid to Tenant or, at Landlord's
option, to the order of the general contractor that performs the Initial
Alterations, in periodic disbursements within thirty (30) days after receipt of
the following documentation: (i) an application for payment and sworn statement
of contractor substantially in the form of AIA Document G-702 covering all work
for which disbursement is to be made to a date specified therein; (ii) a
certification from a licensed architect substantially in the form of the
Architect's Certificate for Payment which is located on AIA Document G702,
Application and Certificate of Payment; (iii) Contractor's, subcontractor's and
material supplier's waivers of liens which shall cover all Initial Alterations
for which disbursement is being requested and all other statements and forms
required for compliance with the mechanics' lien laws of the State of New York,
together with all such invoices, contracts, or other supporting data as Landlord
or Landlord's Mortgagee may reasonably require; (iv) a cost breakdown for each
trade or subcontractor performing the Initial Alterations; (v) plans and
specifications for the Initial Alterations, together with a certificate from an
AIA architect that such plans and specifications comply in all material respects
with all applicable laws; (vi) copies of all construction contracts for the
Initial Alterations, together with copies of all change orders, if any; and
(vii) a request to disburse from Tenant containing an approval by Tenant of the
work done and a good faith estimate of the cost to complete the Initial
Alterations. Upon completion of the Initial Alterations, and prior to final
disbursement of the Allowance, Tenant shall furnish Landlord with: (1) general
contractor and architect's completion affidavits, (2) full and final waivers of
lien, (3) receipted bills covering all labor and materials expended and used,
(4) as-built plans of the Initial Alterations, and (5) the certification of
Tenant and its architect that the Initial Alterations have been installed in a
good and workmanlike manner in accordance with the approved plans, and in
accordance with
D-1
<PAGE> 40
applicable laws, codes and ordinances. In no event shall Landlord be required to
disburse the Allowance more than one time per month. If the cost of Initial
Alterations as reasonably estimated by Tenant exceeds the Allowance, Tenant
shall be entitled to the Allowance in accordance with the terms hereof, but each
individual disbursement of the Allowance shall be disbursed in the proportion
that the Allowance bears to the total cost for the Initial Alterations, less the
10% retainage referenced above. Notwithstanding anything herein to the contrary,
Landlord shall not be obligated to disburse any portion of the Allowance during
the continuance of an uncured default under this Lease, and Landlord's
obligation to disburse shall only resume when and if such default is cured.
Up to twenty percent (20%) of the Allowance may be used for the cost of
preparing design and construction documents and mechanical and electrical plans
for the Initial Alterations and for the purchase of equipment, furniture or
other items of personal property of Tenant. In the event Tenant does not use the
entire Allowance by June 1, 2001, any unused amount shall accrue to the sole
benefit of Landlord, it being understood that Tenant shall not be entitled to
any credit, abatement or other concession in connection therewith. Tenant shall
be responsible for all applicable state sales or use taxes, if any, payable in
connection with the Initial Alterations and/or Allowance.
Tenant agrees to accept the Premises in its "as-is" condition and configuration,
it being agreed that Landlord shall not be required to perform any work or,
except as provided above with respect to the Allowance, incur any costs in
connection with the construction or demolition of any improvements in the
Premises.
This Exhibit shall not be deemed applicable to any additional space added to the
original Premises at any time or from time to time, whether by any options under
this Lease or otherwise, or to any portion of the original Premises or any
additions to the Premises in the event of a renewal or extension of the original
Term of this Lease, whether by any options under this Lease or otherwise, unless
expressly so provided in the Lease or any amendment or supplement to this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit as of the
date first written above.
LANDLORD:
TRANSWESTERN LEXINGTON, LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
TENANT:
FUTURELINK CORP.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
D-2
<PAGE> 41
EXHIBIT E
COMMENCEMENT LETTER
Date________________
Tenant______________
Address_____________
____________________
Re: Commencement Letter with respect to that certain Lease dated _________ by
and between Transwestern Lexington, LLC as Landlord and __________________, a(n)
__________ as Tenant for an Approximate Rentable Area in the Premises of
_________ square feet on the _________ floor of the Building located at 360
Lexington, New York, New York.
Dear _____________:
In accordance with the terms and conditions of the above referenced Lease,
Tenant hereby accepts possession of the premises and agrees as follows:
The Commencement Date of the Lease is _________________________;
The Termination Date of the Lease is ____________________________.
Landlord agrees to complete the work in the Premises identified in the punchlist
jointly prepared by Landlord and Tenant dated ________________.
Please acknowledge your acceptance of possession and agreement to the terms set
forth above by signing all three (3) copies of this Commencement Letter in the
space provided and returning two (2) fully executed copies of the same to my
attention.
Sincerely,
XXXXXXXXX
Property Manager
Agreed and Accepted:
TENANT:
By:__________________________________
Name:________________________________
Title:_______________________________
E-1
<PAGE> 42
EXHIBIT F
PORTER'S WAGE PAYMENT
This exhibit is attached to and made a part of the Lease dated August 8, 2000
by and between TRANSWESTERN LEXINGTON, LLC ("LANDLORD") and FUTURELINK CORP.,
a Delaware corporation ("TENANT") for space in the Building located at 360
Lexington Avenue, New York, New York.
A. Tenant shall pay to Landlord, as additional rent, a porter's wage rate
escalation in accordance with this EXHIBIT F.
B. For the purposes of this EXHIBIT F, the following definitions shall apply:
(i) "WAGE RATE" shall mean the minimum regular hourly rate of wages in effect as
of January 1st of each year (whether paid by Landlord or any contractor employed
by Landlord) computed as paid over a forty hour week to Porters in Class A
office buildings pursuant to an Agreement between the Realty Advisory Board on
Labor Relations, Incorporated, or any successor thereto, and Local 32B-32J of
the Building Service Employees International Union, AFL-CIO, or any successor
thereto; provided, however, that (A) if there is no such agreement in effect
prescribing a wage rate for Porters, computations and payments shall thereupon
be made upon the basis of the regular hourly wage rate actually payable in
effect as of January 1st of each year and (B) if in any year during the Lease
Term, the regular employment of Porters shall occur on days or during the hours
when overtime or other premium pay rates are in effect pursuant to such
Agreement, then the term "hourly rate of wages" as used herein shall be deemed
to mean the average hourly rate for the hours in a calendar week during which
Porters are regularly employed (e.g., if pursuant to an agreement between the
Realty Advisory Board and the Local the regular employment of Porters for forty
hours during a calendar week is at a regular hourly wage rate of $12.00 for the
first thirty hours, and premium or overtime hourly wage rate of $18.00 for the
remaining ten hours, then the hourly rate of wages under this Article during
such period shall be the total weekly rate of $540.00 divided by the total
number of regular hours of employment, forty, or $13.50). Notwithstanding the
foregoing, if at any time such hourly wage rate is different for new hire and
old hire Porters, then thereafter such hourly wage rate shall be based on the
weighted average of the wage rates for the different classifications of Porters.
(ii) "BASE WAGE RATE" shall mean the Wage Rate in effect on January 1, 2000.
(iii) The term "PORTERS" shall mean that classification of non-supervisory
employees employed in and about the Building who devote a major portion of their
time to general cleaning, maintenance and miscellaneous services essentially of
a non-technical and non-mechanical nature and are the type of employees who are
presently included in the classification of "Class A-Others" in the Commercial
Building Agreement between the Realty Advisory Board and the aforesaid Union.
(iv) The term "MINIMUM REGULAR HOURLY RATE OF WAGES" shall not include any
payments for fringe benefits or adjustments of any kind.
(v) The term "MULTIPLICATION FACTOR" shall mean the number of square feet in the
Approximate Rentable Area in the Premises, as the same may be increased or
decreased from time to time during the Lease Term pursuant to the provisions of
this Lease.
C. If the Wage Rate for any calendar year during the Lease Term shall be
increased above the Base Wage Rate, then Tenant shall pay, as Additional Rent,
an amount (such amount, the "PORTER'S WAGE PAYMENT") equal to the product
obtained by multiplying the Multiplication Factor by 100% of the number of cents
(including any fraction of a cent) by which the Wage Rate is greater than the
Base Wage Rate, such payment to be made in equal one-twelfth (1/12th) monthly
installments commencing with the first monthly
F-1
<PAGE> 43
installment of Base Rent falling due on or after the effective date of such
increase in Wage Rate (payable retroactive from said effective date) and
continuing thereafter until a new adjustment shall have become effective in
accordance with the provisions of this Exhibit. Landlord shall give Tenant
notice of each change in Wage Rate which will be effective to create or change
Tenant's Porter's Wage Payment pursuant to the provisions of this EXHIBIT F and
such notice shall contain Landlord's calculation in reasonable detail and
certified as true by an authorized representative of Landlord or of its managing
agent, of the annual Porter's Wage Payment payable resulting from such increase
in Wage Rate. Such amounts shall be prorated for any partial calendar year
during the Lease Term.
D. Every notice given by Landlord pursuant to paragraph C hereof shall be
conclusive and binding upon Tenant, except for manifest error.
E. The "WAGE RATE" is intended to be a substitute comparative index of economic
costs and does not necessarily reflect the actual costs of wages or other
expenses of operating the Building. The Wage Rate shall be used whether or not
the Building is a Class A office building and whether or not Porters are
employed in the Building and without regard to whether such employees are
members of the Union referred to in paragraph A hereof.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and year first written above.
LANDLORD:
TRANSWESTERN LEXINGTON, LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
TENANT:
FUTURELINK CORP.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
F-2
<PAGE> 44
EXHIBIT G
CLEANING SPECIFICATIONS
I. GENERAL OFFICE AREAS (TO BE PERFORMED NIGHTLY, MONDAYS TO FRIDAYS, EXCEPT
WEEKENDS AND BUILDING HOLIDAYS).
o Sweep all applicable floors using chemically treated dust mops. Damp mop as
necessary.
o All carpeted areas and rugs to be vacuumed cleaned once per week and carpet
swept nightly as necessary.
o Hand dust with treated cloth and wipe clean all office furniture including
desks, chairs, fixtures, file cabinets, window sills and radiator
enclosures. Cleaning service shall not disturb paper on desks, file
cabinets or other surfaces.
o Dust all door and other ventilating louvers, damp wipe as necessary.
o Wipe telephone receivers and mouthpieces clean with a disinfectant cleaner
or damp cloth.
o Collect and remove wastepaper, cardboard boxes (which must be left by the
freight elevator marked TRASH). Any bulk rubbish will be considered EXTRA
TRASH, the cleaning staff will not remove such items. Please call the
Management Office to remove it at a cost to your company.
o Remove all gum and foreign matter on sight.
o Clean all water fountains and water coolers with germicidal cleanser and
polish
o Remove all fingerprints and smudges from private entrance doors, light
switches and doorways.
o Turn off all lights and lock all doors upon completion of cleaning leaving
the premises in orderly condition, unless Tenant is still in the space.
II. BASE BUILDING LAVATORIES (TO BE PERFORMED NIGHTLY, MONDAYS TO FRIDAYS,
EXCEPT WEEKENDS AND BUILDING HOLIDAYS)
o Scour, wash and disinfect all basins, pipes, bowls, urinals, toilet seats
(both sides) and tile walls.
o Sweep and wet mop nightly with a disinfectant all lavatory floors.
o Wash and polish all mirrors, powder shelves, bright work, and enameled
surfaces in all lavatories.
o Hand dust and clean, washing where necessary, all partitions, dispensers
and receptacles.
o Empty, clean and disinfect sanitary disposal receptacles.
o Fill all toilet tissue holders; soap dispensers and paper towel dispensers.
o Remove fingerprint marks and scuff marks from painted and/or vinyl
surfaces.
o Machine scrub floors as necessary, but not less than once each month.
o Clean and wash all lavatory partition walls and enamel surfaces once every
month.
o Hand dust clean and wash all tile walls and ceilings once each month or
more if necessary.
o Dust exterior of lighting fixtures monthly.
o Furnish and install urinal screens.
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<PAGE> 45
III. GENERAL OFFICE AREAS - QUARTERLY CLEANING
o Vacuum and dust all pictures, frames, charts, graphs and similar wall
hangings not reached in nightly cleaning.
o Vacuum and dust all vertical surfaces such as walls, partitions, doors,
bucks, ventilating and air conditioning louvers, grills, high moldings and
other surfaces not reached in nightly cleaning.
o Dust all overhead pipes, sprinklers, ventilating and ducts not reached in
nightly cleaning.
IV. EXTERMINATING SERVICES
o All public areas, including public lobbies, hallways, restrooms, basement,
mechanical equipment rooms, electrical and telephone closets, Loading
Dock/Freight Entrance and Stairwells are to be kept under pest control
treatment once per month.
V. PUBLIC HALLWAYS AND STAIRS
o Clean all elevator doors, saddles, buttons, indicators and light fixtures.
o Remove finger marks from painted/wallpapered/marble/wood and/or vinyl
surfaces daily, dust and clean walls and doors.
o Vacuum carpeted areas nightly.
o Wash buff and apply sealer and finishers as required to non-carpeted
floors. Machine scrub and reapply finish or sealer once every two months.
o Check all stairways throughout building; sweep and mop weekly or as often
as necessary or as requested by Agent.
o High dust stairwell, lighting, sprinkler piping, electrical conduits, walls
and stair railings on a monthly basis or as needed or requested by agent.
o Wash stairway walls annually.
o Shampoo all public hallway carpeting quarterly using the steam extraction
method. Spot clean same as necessary.
The following are not included in the above mentioned base building cleaning:
o ALL PRIVATE RESTROOMS/SHOWER ROOMS - CLEANING AND PAPER SUPPLIES
o KITCHEN SINK, DISHES, COUNTER TOPS, ETC. - CLEANING AND PAPER SUPPLIES
G-2
