<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission File Number: 000-28185
C-bridge Internet Solutions, Inc.
(Exact name of registrant as specified in its charter)
DELAWARE 52-2001899
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
219 Vassar Street,
Cambridge, Massachusetts 02139
(Address of principal executive offices) (Zip Code)
(617) 497-1707
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date:
As of May 1, 2000, there were 19,780,432 shares of common stock outstanding.
Page 1
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C-BRIDGE INTERNET SOLUTIONS, INC.
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
<S> <C>
PART I - FINANCIAL INFORMATION:
Item 1: Financial Statements
Consolidated Balance Sheets as of March 31, 2000 and
December 31, 1999 3
Consolidated Statements of Operations for the Three
Months Ended March 31, 2000 and 1999 4
Consolidated Statements of Cash Flows for the Three
Months Ended March 31, 2000 and 1999 5
Notes to Consolidated Financial Statements 6
Item 2: Management's Discussion and Analysis of Financial
Condition and Results of Operations 7-10
Item 3: Quantitative and Qualitative Disclosures about Market Risk 10
PART II - OTHER INFORMATION:
Item 1: Legal Proceedings 11
Item 2: Changes in Securities and Use of Proceeds 11
Item 6: Exhibits and Reports on Form 8-K 11
SIGNATURES 12
</TABLE>
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<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. Financial Statements
C-BRIDGE INTERNET SOLUTIONS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
----------- ------------
(unaudited)
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents......................... $ 67,332,441 $ 65,312,334
Accounts receivable, net of allowance of $154,000
and $100,000, respectively....................... 6,122,620 3,499,356
Unbilled receivables.............................. 4,189,367 1,792,133
Other current assets.............................. 699,357 584,794
------------ ------------
Total current assets............................ 78,343,785 71,188,617
------------ ------------
Property and Equipment, at cost:
Computer equipment................................ 2,537,768 1,812,637
Furniture and fixtures............................ 208,003 208,003
Computer software................................. 1,472,444 965,433
Leasehold improvements............................ 75,763 40,181
------------ ------------
4,293,978 3,026,254
Less--Accumulated depreciation and amortization... 999,655 682,536
------------ ------------
3,294,323 2,343,718
------------ ------------
Other Assets........................................ 1,650,287 1,361,326
------------ ------------
Total assets.................................... $ 83,288,395 $ 74,893,661
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current portion of equipment loans and capital
lease obligations................................ $ 212,804 $ 191,206
Accounts payable.................................. 1,568,593 2,018,741
Accrued expenses.................................. 3,370,915 3,431,285
Deferred revenue.................................. 1,919,027 1,877,628
------------ ------------
Total current liabilities....................... 7,071,339 7,518,860
------------ ------------
Equipment Loans and Capital Lease Obligations, net
of current portion................................. 192,068 263,100
------------ ------------
Stockholders'Equity:
Common stock, $.01 par value--
Authorized--50,000,000 shares
Issued--19,888,983 and 18,906,258 shares,
respectively................................... 198,889 189,063
Additional paid-in capital........................ 91,775,984 82,394,326
Deferred compensation............................. (4,595,726) (5,107,259)
Accumulated deficit............................... (11,201,159) (10,211,429)
Treasury stock, at cost--512,708 and
510,000 shares, respectively..................... (153,000) (153,000)
------------ ------------
Total stockholders' equity...................... 76,024,988 67,111,701
------------ ------------
Total liabilities and stockholders' equity...... $ 83,288,395 $ 74,893,661
============ ============
</TABLE>
The accompanying notes are an integral part of
these consolidated financial statements.
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C-BRIDGE INTERNET SOLUTIONS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
For the Three Months Ended
--------------------------
March 31, March 31,
2000 1999
--------- ---------
(unaudited)
<S> <C> <C>
Net Revenues:
Professional services................... $10,268,906 $ 2,440,900
Educational services.................... 1,903,997 -
----------- -----------
Total net revenues.................... 12,172,903 2,440,900
----------- -----------
Costs and Expenses:
Direct costs of professional services
(exclusive of noncash compensation
expense presented below)................ 5,433,167 1,526,980
Direct costs of educational services
(exclusive of noncash compensation
expense presented below)................ 612,960 -
Selling and marketing (exclusive of
noncash compensation expense
presented below)........................ 3,147,581 413,169
General and administrative (exclusive
of noncash compensation expense
presented below)........................ 4,272,791 684,728
Compensation expense related to stock
options and warrants.................... 753,768 -
----------- -----------
Total operating expenses............... 14,220,267 2,624,877
----------- -----------
Loss from operations................... (2,047,364) (183,977)
Interest Expense.......................... - (77,013)
Interest Income........................... 902,083 -
Other Income.............................. 155,551 6,482
----------- -----------
Net loss............................... $ (989,730) $ (254,508)
=========== ===========
Basic and Diluted Net Loss per Share
(Note 2).................................. $ (.05) $ (.03)
=========== ===========
Basic and Diluted Weighted Average
Shares Outstanding........................ 19,252,938 10,123,965
=========== ===========
</TABLE>
The accompanying notes are an integral part of
these consolidated financial statements.
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C-BRIDGE INTERNET SOLUTIONS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
For the Three Months Ended
-----------------------------
March 31, March 31,
2000 1999
---------- ------------
(unaudited)
<S> <C> <C>
Cash Flows from Operating Activities:
Net loss............................................ $ (989,730) $(254,508)
Adjustments to reconcile net loss to net
cash used in operating activities-
Depreciation........................................ 317,119 69,921
Noncash stock based compensation 753,768 -
Changes in current assets and liabilities-
Accounts receivable................................ (2,623,264) (268,860)
Unbilled receivables............................... (2,397,234) (509,739)
Other current assets............................... (114,563) (1,951)
Accounts payable................................... (450,148) 61,894
Accrued expenses................................... (60,372) 439,049
Deferred revenue................................... 41,399 210,761
----------- ---------
Net cash used in operating activities............... (5,523,025) (253,433)
----------- ---------
Cash Flows from Investing Activities:
Purchases of property and equipment................. (1,267,724) (91,080)
Increase in other assets............................ (288,961) -
----------- ---------
Net cash used in investing activities............... (1,556,685) (91,080)
----------- ---------
Cash Flows from Financing Activities:
Proceeds from the sale of common stock,
net of issuance costs............................... 8,928,000 -
Proceeds from line of credit, net of repayments..... - 169,000
Repayments of capital lease......................... (49,433) (16,195)
Repayments of amounts due to affiliates............. - (10,976)
Proceeds from exercise of stock options............. 221,250 24,518
----------- ---------
Net cash provided by financing activities........... 9,099,817 166,347
----------- ---------
Net Increase (Decrease) in Cash and Cash
Equivalents......................................... 2,020,107 (178,166)
Cash and Cash Equivalents, Beginning of Period........ 65,312,334 190,409
----------- ---------
Cash and Cash Equivalents, End of Period.............. $67,332,441 $ 12,243
=========== =========
Supplemental Disclosure of Cash
Flow Information:
Cash paid during period for interest................. $ 30,937 $ 67,399
=========== =========
Cash paid during period for income taxes............. $ 2,294 $ -
=========== =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements
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<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements included
herein have been prepared by C-bridge Internet Solutions, Inc. and its
subsidiaries (together the "Company"), pursuant to the rules and regulations of
the Securities and Exchange Commission. The information furnished in the
consolidated financial statements includes normal recurring adjustments and
reflects all adjustments which are, in the opinion of management, necessary for
a fair presentation of such consolidated financial statements. Results of
operations for the three month periods presented are not necessarily indicative
of the results to be expected for the year ended December 31, 2000 or for any
future period. Certain information and footnote disclosures normally included in
the consolidated financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted pursuant to such
rules and regulations, although the Company believes that the disclosures are
adequate to make the information presented not misleading. These consolidated
financial statements should be read in conjunction with the consolidated
financial statements, and the notes thereto, included in the Company's Annual
Report on Form 10-K/A for the year ended December 31, 1999.
2. NET LOSS PER SHARE
Statement of Financial Accounting Standard (SFAS) No. 128, Earnings per
Share, requires the presentation of basic and diluted earnings per share (EPS).
Basic EPS is computed by dividing income available to common stockholders by the
weighted average number of common shares outstanding for the period. Diluted EPS
is computed using the weighted average number of common shares outstanding plus
the dilutive effect of common stock equivalents (using the treasury stock
method). Basic and diluted net loss per share are the same for both periods
presented due to the Company's net losses for the three months ended March 31,
1999 and 2000. Antidilutive securities, which consist of options and warrants to
purchase common stock that are not included in diluted net loss per share, were
6,126,460 and 7,837,867 as of March 31, 1999 and 2000, respectively.
3. SEGMENT AND GEOGRAPHIC INFORMATION
The Company views its operations and manages its business as two segments,
strategic and technology consulting services and educational services. The
Company's reportable segments are strategic business units that provide distinct
services to the end customer. They are managed separately because each business
requires different marketing and management strategies. The Company's approach
is based on the way that management organizes the segments within the Company
for making operating decisions and assessing performance.
The accounting policies of the segments are the same as those described in
the summary of significant accounting policies contained in the Company's Annual
Report on Form 10-K/A for the year ended December 31, 1999. The Company does not
allocate operating expenses between its two reportable segments. Accordingly,
the Company's measure of performance for each reportable segment is based on
total net revenues and direct costs of services, which are reported separately
in the accompanying consolidated statements of operations. The Company does not
identify assets and liabilities by segment. Accordingly, identifiable assets,
capital expenditures and depreciation and amortization are not reported by
segment.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Forward-looking Statements
This Report on Form 10-Q contains forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 and section 21E of the
Securities Act of 1934, as amended. Statements beginning with such words as
"believes", "intends", "plans", and "expects" and similar expressions include
forward-looking statements that are based on management's expectations given
facts as currently known by management. Actual results may differ materially
from those discussed in these forward-looking statements. Factors that could
cause the Company's future results to differ materially from the expectations
described herein include but are not limited to the profitability of the
Company's contracts, the Company's ability to hire, train, and retain qualified
employees, the Company's ability to continue to develop effective sales and
marketing capabilities, the Company's ability to keep pace with the Internet's
rapid technological changes, evolving industry standards and changing client
requirements, worldwide business use of the Internet, the growth in the number
of web access devices per user, the absence of any failure of the Internet, the
continued improvement of security on the Internet, general economic and industry
conditions, as well as, other factors noted in the Company's Registration
Statement on Form S-1 dated December 16, 1999, as filed with the Securities and
Exchange Commission and in the Company's Annual Report on Form 10-K/A for the
year ended December 31, 1999.
Overview
C-bridge Internet Solutions, Inc. (the "Company") is a full service
provider of Internet-based solutions designed to help companies conduct
eBusiness. The Company has experienced consistent revenue growth since its
inception in October of 1996.
The Company's revenues are derived primarily from providing Internet
professional services and it anticipates that revenue growth will be driven
primarily by the number and scope of its client engagements and by the growth of
its professional services headcount. During the first quarter of 2000, the
Company earned professional services revenues from 21 clients and three
professional services clients accounted for approximately 45% of the Company's
total net revenues. Revenues from any given client will vary from period to
period; however, the Company expects that significant customer concentration
will continue for the foreseeable future. To the extent that any significant
client uses less of the Company's services or terminates its relationship with
the Company, revenues could decline substantially. In addition, the loss of any
significant client could materially and adversely affect the Company's business
and results of operations.
The Company also generates revenues from providing educational services. In
May 1999, the Company entered into an outsourcing agreement with one of its
sales lead sources, CEE, to provide the operational aspects of their executive
education seminars. The Company markets and sells its services through executive
education seminars, indirectly with partners, and directly through its sales
organization. The majority of leads and revenues for 2000 and 1999 have come
through executive education seminars.
Revenues and earnings may fluctuate from quarter to quarter based on
factors within and outside the Company's control, including the variability in
market demand for the Internet and for Internet professional services, the
length of the sales cycle associated with service offerings, the number and
scope of projects, seasonal factors and the efficiency of utilizing professional
services employees.
For the quarter ended March 31, 2000, approximately 93% of professional
services revenues were generated pursuant to time and material contracts, while
for the quarter ended March 31, 1999, approximately 82% of revenues were derived
from time and material contracts. Revenues from time and material contracts are
generally recognized as services are provided. Revenues generated pursuant to
fixed-fee contracts are generally recognized as services are rendered using the
percentage-of-completion method of accounting. Revenues exclude reimbursable
expenses charged to clients.
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Despite a growth in revenues, the Company has not been profitable and
expects to continue to incur net losses. Net losses may not decrease
proportionately with the increase in revenues primarily because of increased
expenses related to the hiring of additional employees, expansion of the number
of offices, increased investment in knowledge management, methodologies and
operations infrastructure, and increased marketing and sales efforts. To the
extent that future revenues do not increase significantly in the same periods in
which operating expenses increase, operating results would be adversely
affected.
The largest portions of the Company's costs result from employee
compensation and the related overhead and facilities costs. The Company
currently expects to continue to grow its headcount. Accordingly, if revenues do
not increase at a rate equal to expenses, the Company's business, financial
condition or results of operations could be materially and adversely affected.
In addition, liquidity may also be adversely affected if revenues do not
increase at a rate equal to these additional expenses.
Client engagements currently average three to six months in duration. If a
client engagement ends earlier than expected, professional service employees
must be re-deployed and any resulting non-billable time will adversely affect
professional services margins. The Company also expects per capita professional
services costs to increase over time due to wage increases and inflation.
Professional services margins are affected by trends in hiring and in
professional services employee utilization, and, as such, will vary in the
future. Any significant inability to increase billable rates, a decline in
billable rates or time billed to clients or the loss of a significant client
would materially adversely affect professional services margins.
At March 31, 2000, the Company had 344 employees.
RESULTS OF OPERATIONS THREE MONTHS ENDED MARCH 31, 2000 COMPARED TO THREE MONTHS
ENDED MARCH 31, 1999
Professional Services Revenues
Professional services revenues increased 321% to $10.3 million for the
quarter ended March 31, 2000 from $2.4 million for the quarter ended March 31,
1999. The increase reflects growing demand for Internet professional services
and increases in both the size and number of the Company's client engagements.
For the quarter ended March 31, 2000, professional services revenues from three
clients totaled 45% of total net revenues reflecting continued concentration of
revenues from a small number of clients, while professional services revenues
from three clients totaled 78% of total net revenues for the quarter ended March
31, 1999.
Educational Services Revenues
The Company began providing educational services in May 1999. Educational
services revenues were $1.9 million for the quarter ended March 31, 2000. Of the
$1.9 million of educational services revenues earned in the first quarter of
2000, $1.4 million were earned through an outsourcing agreement with CEE and
represented 12% of total net revenues for the quarter ended March 31, 2000.
Direct Costs of Professional Services
Direct costs of professional services consist primarily of the compensation
and benefits of employees engaged in the delivery of professional services and
of non-reimbursable project expenses related to client projects. Direct costs of
professional services margins reflect revenues less the professional services
expenses whether or not the employee's time is billed to a client. Direct costs
of professional services increased 256% to $5.4 million for the quarter ended
March 31, 2000 from $1.5 million for the quarter ended March 31, 1999. This
increase was primarily due to the growth of professional services headcount to
respond to growth and a general increase in wages for professional services
employees. The Company increased its professional services headcount to 208 at
March 31, 2000 from 56 at March 31, 1999. Direct costs of professional services
represented 45% of total net revenues for the quarter ended March 31, 2000 and
63% of total net revenues for the quarter ended March 31, 1999.
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Direct Costs of Educational Services
Direct costs of educational services consist of the salaries, benefits and
direct expenses for personnel related to the Company's educational services. It
also includes the direct expenses of delivering educational services. Direct
costs of educational services were $613,000 for the quarter ended March 31,
2000. Direct costs of educational services represented 5% of total net revenues
for the quarter ended March 31, 2000.
Selling and Marketing Expenses
Selling and marketing expenses consist of salaries, commissions, benefits
and related expenses for personnel engaged in sales and marketing activities. It
also includes public relations, trade shows, promotional expenses and other
expenses directly related to sales and marketing. Selling and marketing expenses
increased 662% to $3.1 million for the quarter ended March 31, 2000 from
$413,000 for the quarter ended March 31, 1999. This increase was primarily due
to an increase in selling and marketing headcount, travel related expenses and
an increase in direct expenses related to sales and marketing programs during
the first quarter of 2000. Selling and marketing expenses represented 26% of
total net revenues for the quarter ended March 31, 2000 and 17% of total net
revenues for the quarter ended March 31, 1999.
General and Administrative Expenses
General and administrative expenses consist of compensation, benefits, and
related expenses for personnel engaged in executive and general management,
recruiting, human resources, information technology, finance, administrative,
and developing and maintaining the Company's service methodologies. It also
includes expenses for recruiting, training, leasing and maintaining office
space, professional fees and all other general corporate expenses. General and
administrative expenses increased 524% to $4.3 million for the quarter ended
March 31, 2000 from $685,000 for the quarter ended March 31, 1999. This increase
was due primarily to an increase in recruiting expenses and an increase in
general and administrative headcount. General and administrative expenses
represented 35% of total net revenues for the quarter ended March 31, 2000 and
28% of total net revenues for the quarter ended March 31, 1999.
Compensation Expense Related to Stock Options and Warrants
Compensation expense related to stock options and warrants consists of the
non-cash compensation expense related to the granting of stock options and
warrants. The Company has previously recorded deferred compensation expense of
$9.5 million related to certain stock option grants. This deferred compensation
expense is recognized based on the vesting of these stock options. Of the
recorded deferred compensation expense, $512,000 was expensed in the quarter
ended March 31, 2000. During the quarter ended March 31, 2000, the Company also
recorded compensation expense of $242,000 related to non-qualified options.
Interest and Other Income
Net interest and other income (expense) changed to income of $1.1 million
for the quarter ended March 31, 2000 from an expense of $71,000 for the quarter
ended March 31, 1999. This change was primarily due to interest income related
to the proceeds from the Company's initial public offering and payments received
in connection with the settlement of litigation.
Provision for Income Taxes
The Company had a net operating loss carryforward of $3.1 million at
December 31, 1999, which may be used to offset future taxable income, if any.
This carryforward is subject to review and possible adjustment by the Internal
Revenue Service. The Internal Revenue Code contains provisions that may limit
use of the carryforward in the event there are significant changes in ownership
of the Company. The Company has not given recognition to any potential tax
benefits, consisting primarily of the net operating loss carryforward, as it is
more likely than not that these benefits will not be realizable in future years'
tax returns.
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Liquidity and Capital Resources
Since inception, the Company has funded operations through the sale of
equity securities, bank borrowings and lease financing arrangements.
At March 31, 2000, the Company's cash and cash equivalents were $67.3
million. Working capital increased to $71.3 million at March 31, 2000 from $63.7
million at December 31, 1999. The increase was primarily due to proceeds
received from the underwriters' of the Company's December 1999 Initial Public
offering exercising an over-allotment option during January 2000. In connection
with the exercise of the over-allotment, the Company sold 600,000 shares of
common stock at $16.00 per share, resulting in net proceeds of $8.9 million.
Based on the current business plan, the Company believes that its current cash
will be sufficient to meet working capital and capital expenditure requirements
at least through the next twelve months. However, there can be no assurance that
the Company will not require additional financings within this time frame or
that such additional financing, if needed, will be available on acceptable
terms, if at all.
Cash used in operating activities was $5.5 million for the quarter ended
March 31, 2000 and $253,000 for the quarter ended March 31, 1999. For the
quarter ended March 31, 2000 and 1999 the Company had capital expenditures of
$1.3 million and $91,000, respectively.
Cash provided by the exercise of stock options was $221,000 for the quarter
ended March 31, 2000 and $25,000 for the quarter ended March 31, 1999.
The Company's borrowings at March 31, 2000 consist of $405,000 due under
equipment financing obligations.
RECENT ACCOUNTING PRONOUNCEMENTS
The Securities and Exchange Commission (SEC) issued Staff Accounting
Bulletin (SAB) No. 101, Revenue Recognition, in December 1999. The Company has
adopted this new accounting guidance for all periods presented. The adoption of
the guidance provided in SAB No. 101 did not have a material impact on any
period presented.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Derivative Financial Instruments, Other Financial Instruments and
Derivative Commodity Instruments
As of March 31, 2000, the Company did not participate in any derivative
financial instruments or other financial and commodity instruments for which
fair market value disclosure would be required under SFAS No. 107. All of the
Company's investments are money market accounts that are carried on the
Company's books at amortized cost, which approximates fair market value.
Accordingly, the Company has no quantitative information concerning the market
risk of participating in such instruments.
Primary Market Risk Exposures
The Company's primary market risk exposure is in the area of interest rate
risk. The Company's investment portfolio of cash and cash equivalents is subject
to interest rate fluctuations, but the Company believes this risk is immaterial
due to the short-term nature of the investments.
Page 10
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PART II - OTHER INFORMATION
ITEM 1. Legal Proceedings
On January 7, 2000, Jack W. Rizika, as Assignee of the Assignee for the
Benefit of Creditors of Cambridge Technology Group, Inc. (CTG), brought suit in
the Commonwealth of Massachusetts Superior Court for Middlesex County against
the Company, John J. Donovan, and the Willingdon, Windsor, and Appleby Trusts,
alleging that CTG had advanced approximately $2.1 million to the Company in 1997
and 1998 and that before the Assignment for the Benefit of Creditors, CTG "had
agreed to forgive this debt in its entirety for no consideration." Rizika
asserted four causes of action against the Company including a fraudulent
transfer claim under the UFTA, a civil conspiracy claim, a claim for relief
under Chapter 93A of Massachusetts' consumer protection statute, and a claim for
an accounting. On May 12, 2000, the Company served a motion to dismiss the
complaint.
ITEM 2. Changes in Securities and Use of Proceeds
(d). On January 11, 2000, the managing underwriters of the Company's initial
public offering exercised their over-allotment option and purchased 600,000
shares of common stock from the Company at $16.00 per share. In conjunction
with its sale of the 600,000 shares, the Company received $8.9 million, net
of commissions and costs. The total net proceeds to the Company from the
initial public offering were approximately $57.8 million.
The Company has used, and continues to expect to use, the proceeds from the
sale of stock for general corporate purposes, including working capital. A
portion of the proceeds may also be used for the acquisitions of businesses
that are complimentary to the Company.
ITEM 6. Exhibits and Reports on Form 8-K
(a). Exhibits
10.1 Lease Agreement dated March 15, 2000, by and between the Company and
EOP 150 - California Street, L.L.C. relating to office space located
at 150 California St. San Francisco, CA.
10.2 Lease Agreement dated February 28, 2000, by and between the Company
and BRE/Southfield, L.L.C. relating to office space located at 3000
Town Center, Southfield, MI.
10.3 Lease Agreement dated February 16th, by and between the Company and
40 Wall Street, L.L.C. relating to office space located at 40 Wall St.
New York, NY. This lease agreement will be filed in paper under cover
of Form S-E pursuant to a Continuing Hardship Exemption under Rule 202
of Regulation S-T granted by the Securities and Exchange Commission on
May 12, 2000. "P"
27.1 Financial Data Schedule
(b). Reports on form 8-K
None to report.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
C-Bridge Internet Solutions, Inc.
By:
Date: May 12, 2000 /s/ Joseph M. Bellini
----------------------
Joseph M. Bellini,
Chief Executive Officer
By:
Date: May 12, 2000 /s/ Richard O. Wester
------------------------
Richard O. Wester,
Chief Financial Officer
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150 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA
OFFICE LEASE AGREEMENT
BETWEEN
EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
C-BRIDGE INTERNET SOLUTIONS, A DELAWARE CORPORATION
("TENANT")
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
I. BASIC LEASE INFORMATION........................... 1
II. LEASE GRANT....................................... 3
III. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION....... 3
IV. RENT.............................................. 4
V. COMPLIANCE WITH LAWS; USE......................... 8
VI. SECURITY DEPOSIT.................................. 8
VII. SERVICES TO BE FURNISHED BY LANDLORD.............. 8
VIII. LEASEHOLD IMPROVEMENTS............................ 9
IX. REPAIRS AND ALTERATIONS........................... 9
X. USE OF ELECTRICAL SERVICES BY TENANT.............. 10
XI. ENTRY BY LANDLORD................................. 11
XII. ASSIGNMENT AND SUBLETTING......................... 11
XIII. LIENS............................................. 12
XIV. INDEMNITY AND WAIVER OF CLAIMS.................... 12
XV. INSURANCE......................................... 13
XVI. SUBROGATION....................................... 13
XVII. CASUALTY DAMAGE................................... 14
XVIII. CONDEMNATION...................................... 14
XIX. EVENTS OF DEFAULT................................. 15
XX. REMEDIES.......................................... 15
XXI. LIMITATION OF LIABILITY........................... 16
XXII. NO WAIVER......................................... 17
XXIII. QUIET ENJOYMENT................................... 17
XXIV. RELOCATION........................................ 17
XXV. HOLDING OVER...................................... 17
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.. 17
XXVII. ATTORNEYS' FEES................................... 18
XXVIII. NOTICE............................................ 18
XXIX. EXCEPTED RIGHTS................................... 18
XXX. SURRENDER OF PREMISES............................. 18
XXXI. MISCELLANEOUS..................................... 19
XXXII. ENTIRE AGREEMENT.................................. 20
</TABLE>
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OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as of
the 15th day of March, 2000, by and between EOP-150 CALIFORNIA STREET, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and C-BRIDGE INTERNET SOLUTIONS,
A DELAWARE CORPORATION ("Tenant").
I. BASIC LEASE INFORMATION.
A. "Building" shall mean that certain building to be constructed at 150
California Street, San Francisco, California, commonly known as 150
California Street. As of the date of this Lease, Landlord has not
caused the Building to be fully constructed.
B. "Rentable Square Footage of the Building" is deemed to be
approximately 201,787 square feet, subject to adjustment as provided
below in Section I.C.
C. "Premises" shall mean the area shown on EXHIBIT A to this Lease. The
Premises are located on the 10th floor and known as suite number 1000.
The "Rentable Square Footage of the Premises" is deemed to be 9,829
square feet. If the Premises include one or more floors in their
entirety, all corridors and restroom facilities located on such full
floor(s) shall be considered part of the Premises. Upon substantial
completion of the Building, Landlord shall have its architect measure
the Premises and Building in accordance with Landlord's standard
measurement practices for the Building in order to determine the
Rentable Square Footage of the Premises and Rentable Square Footage of
the Building. Such remeasurement shall be conducted using the
following load factor for the Premises: single tenant/full floor load
factor of approximately 20.82% (not to exceed 22.82%). Upon such
determination, Landlord and Tenant shall enter into the amendment as
described in the last paragraph of Section I.D. below.
D. "Base Rent":
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ANNUAL RATE ANNUAL MONTHLY
PERIOD PER SQUARE FOOT BASE RENT BASE RENT
---------------------------------------------------------------------
---------------------------------------------------------------------
6/1/2000 - 5/31/2005 $55.75 $547,966.80 $45,663.90
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Landlord and Tenant acknowledge that the foregoing schedule is based
upon the assumption that the Premises shall contain a total of 9,829
square feet of Rentable Square Footage. In the event that the
Premises contain other than 9,829 square feet of Rentable Square
Footage as a result of a remeasurement of the Premises by Landlord's
architect as provided in Section I.C. above, the foregoing schedule
shall be recalculated based upon the actual Rentable Square Footage of
the Premises, and upon such determination of the Rentable Square
Footage of the Premises, Landlord and Tenant shall promptly enter into
an amendment to this Lease to modify (i) the total Rentable Square
Footage of the Premises, (ii) the Rentable Square Footage of the
Building (to reflect any change in the Rentable Square Footage of the
Building as a result of a remeasurement of the Building by Landlord's
architect as provided in Section I.C. above), (iii) the amount of the
monthly installments of Base Rent payable by Tenant with respect to
the Premises, (iv) the amount of the Allowance, if any, and (v) any
other matters which are affected by a change in the Rentable Square
Footage of the Premises.
E. "Tenant's Pro Rata Share": 4.8710%.
F. "Base Year" for Taxes: 2000; "Base Year" for Expenses: 2000.
G. "Term": A period of 60 months. The Term shall commence on JUNE 1,
2000 (the "Commencement Date") and, unless terminated early in
accordance with this Lease, end on MAY 31, 2005 (the "Termination
Date"). However, if Landlord is required to Substantially Complete
(defined in Section III.A) any Landlord Work (defined in Section I.O.)
prior to the Commencement Date under the terms of a Work Letter
(defined in Section I.O): (1) the date set forth in the prior sentence
as the "Commencement Date" shall instead be defined as the "Target
Commencement Date" by which date Landlord will use reasonable efforts
to
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Substantially Complete the Landlord Work; and (2) the actual
"Commencement Date" shall be the date on which the Landlord Work is
Substantially Complete, as determined by Section III.A. In such
circumstances, the Termination Date will instead be the last day of
the Term as determined based upon the actual Commencement Date.
Landlord's failure to Substantially Complete the Landlord Work by the
Target Commencement Date shall not be a default by Landlord or
otherwise render Landlord liable for damages. Promptly after the
determination of the Commencement Date, Landlord and Tenant shall
enter into a commencement letter agreement in the form attached as
EXHIBIT C.
H. Tenant allowance(s): $35.00 per rentable square foot of the Premises,
as more fully set forth on EXHIBIT D.
I. "Security Deposit" shall mean $933.755.00 in the form of a letter of
credit, as more fully described in Article VI.
J. "Guarantor(s)": As of the date of this Lease, there are no
Guarantors.
K. "Broker(s)": Grubb & Ellis
L. "Permitted Use": General office use.
M. "Notice Addresses":
Tenant:
On and after the Commencement Date, notices shall be sent to Tenant at
the Premises. Prior to the Commencement Date, notices shall be sent
to Tenant at the following address:
C-BRIDGE INTERNET SOLUTIONS
1750 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94111
LANDLORD: WITH A COPY TO:
EOP-150 CALIFORNIA STREET, L.L.C. EQUITY OFFICE PROPERTIES TRUST
C/O EQUITY OFFICE PROPERTIES TRUST TWO NORTH RIVERSIDE PLAZA
150 CALIFORNIA STREET SUITE 2200
SAN FRANCISCO, CALIFORNIA 94104 CHICAGO, ILLINOIS 60606
ATTENTION: BUILDING MANAGER ATTENTION: REGIONAL COUNSEL -
PACIFIC REGION
Rent (defined in Section IV.A) is payable to the order of EQUITY
OFFICE PROPERTIES at the following address: TO BE DETERMINED.
N. "Business Day(s)" are Monday through Friday of each week, exclusive of
New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day ("Holidays"). Landlord may
designate additional Holidays, provided that the additional Holidays
are commonly recognized by other office buildings in the area where
the Building is located.
O. "Landlord Work" means the work, if any, that Landlord is obligated to
perform in the Premises pursuant to a separate work letter agreement
(the "Work Letter"), if any, attached as EXHIBIT D. If a Work Letter
is not attached to this Lease or if an attached Work Letter does not
require Landlord to perform any work, the occurrence of the
Commencement Date shall not be conditioned upon the performance of
work by Landlord and, accordingly, Section III.A. shall not be
applicable to the determination of the Commencement Date.
P. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
Q. "Normal Business Hours" for the Building are 8:00 a.m. to 6:00 p.m. on
Business Days.
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R. "Property" means the Building and the parcel(s) of land on which it is
located and, at Landlord's discretion, the Building garage and other
improvements serving the Building, if any, and the parcel(s) of land
on which they are located.
II. LEASE GRANT.
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord, together with the right in common with others to use any portions of
the Property that are designated by Landlord for the common use of tenants and
others, such as sidewalks, unreserved parking areas, common corridors, elevator
foyers, restrooms, vending areas and lobby areas (the "Common Areas").
III. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION.
A. The Landlord Work shall be deemed to be "Substantially Complete" on
the later of (i) the date that all Landlord Work has been performed
other than any details of construction, mechanical adjustment or any
other similar matter, the noncompletion of which does not materially
interfere with Tenant's use of the Premises, or (ii) the date Landlord
receives (or would have received absent any Tenant Delays) all
governmental approvals which are required to obtain a temporary or
permanent certificate of occupancy for the Premises from the local
governmental authority. However, if Landlord is delayed in the
performance of the Landlord Work as a result of any Tenant Delay(s)
(defined below), the Landlord Work shall be deemed to be Substantially
Complete on the date that Landlord could reasonably have been expected
to Substantially Complete the Landlord Work absent any Tenant Delay.
"Tenant Delay" means any act or omission of Tenant or its agents,
employees, vendors or contractors that actually delays the Substantial
Completion of the Landlord Work, including, without limitation: (1)
Tenant's failure to furnish information or approvals within any time
period specified in this Lease, including the failure to prepare or
approve preliminary or final plans by any applicable due date; (2)
Tenant's selection of equipment or materials that have long lead times
after first being informed by Landlord that the selection may result
in a delay; (3) changes requested or made by Tenant to previously
approved plans and specifications; (4) performance of work in the
Premises by Tenant or Tenant's contractor(s) during the performance of
the Landlord Work; or (5) if the performance of any portion of the
Landlord Work depends on the prior or simultaneous performance of work
by Tenant, a delay by Tenant or Tenant's contractor(s) in the
completion of such work. If the Commencement Date does not occur by
March 1, 2001 (or such later date as the Commencement Date may be
extended due to Tenant Delays and events of Force Majeure) (the
"Outside Completion Date"), Landlord or Tenant, as their sole remedy,
may terminate this Lease by giving the other party written notice of
termination on or before 10 Business Days after the Outside Completion
Date. In such event, the termination of this Lease shall be effective
as of the date of the non-terminating party's receipt of such notice
of termination. In the event that either Tenant or Landlord has so
provided the termination notice, this Lease shall be deemed null and
void and of no further force and effect and Landlord shall promptly
refund any prepaid rent and Security Deposit previously advanced by
Tenant under this Lease and, so long as Tenant has not previously
defaulted under any of its obligations under the Work Letter beyond
any applicable cure period, the parties hereto shall have no further
responsibilities or obligations to each other with respect to this
Lease. Landlord and Tenant acknowledge and agree that: (i) the
determination of the Commencement Date and the Outside Completion Date
shall take into consideration the effect of any Tenant Delays, and any
events of Force Majeure. Notwithstanding anything herein to the
contrary, if Landlord determines, that it will be unable to cause the
Commencement Date to occur by the Outside Completion Date, Landlord
shall have the right to immediately cease its performance of the
Landlord Work and provide Tenant with written notice (the "Outside
Extension Notice") of such inability, which Outside Extension Notice
shall set forth the date on which Landlord reasonably believes that
the Commencement Date will occur. Upon receipt of the Outside
Extension Notice, Tenant shall have the right to terminate this Lease
by providing written notice of termination to Landlord within 10
Business Days after the date of Tenant's receipt of the Outside
Extension Notice. In the event Tenant so provides a written notice of
termination, this Lease shall terminate effective as of the date of
Landlord's receipt of Tenant's notice of termination. In the event
that Tenant does not terminate this Lease within such 10 Business Day
period, the Outside Completion Date shall automatically be
3
<PAGE>
amended to be the date set forth in Landlord's Outside Extension
Notice (subject to an ongoing right of the parties hereto to repeat
this process in the event Tenant does not so terminate this Lease and
Landlord subsequently determines that Landlord will be unable to cause
the Commencement Date to occur by the Outside Completion Date as
extended).
B. Subject to Landlord's obligation, if any, to perform Landlord Work and
Landlord's obligations under Section IX.B., the Premises are accepted
by Tenant in "as is" condition and configuration. By taking possession
of the Premises, Tenant agrees that the Premises are in good order and
satisfactory condition, and that there are no representations or
warranties by Landlord regarding the condition of the Premises or the
Building. If Landlord is delayed delivering possession of the
Premises or any other space due to the holdover or unlawful possession
of such space by any party, Landlord shall use reasonable efforts to
obtain possession of the space. If Landlord is not required to
Substantially Complete Landlord Work before the Commencement Date, the
Commencement Date shall be postponed until the date Landlord delivers
possession of the Premises to Tenant free from occupancy by any party,
and the Termination Date, at the option of Landlord, may be postponed
by an equal number of days. If Landlord is required to Substantially
Complete Landlord Work before the Commencement Date, the Commencement
Date and Termination Date shall be determined by Section I.G.
C. If Tenant takes possession of the Premises before the Commencement
Date, such possession shall be subject to the terms and conditions of
this Lease and Tenant shall pay Rent (defined in Section IV.A.) to
Landlord for each day of possession before the Commencement Date.
However, except for the cost of services requested by Tenant (e.g.
freight elevator usage), Tenant shall not be required to pay Rent for
any days of possession before the Commencement Date during which
Tenant, with the approval of Landlord, is in possession of the
Premises for the sole purpose of performing improvements or installing
furniture, equipment or other personal property.
IV. RENT.
A. Payments. As consideration for this Lease, Tenant shall pay Landlord,
--------
without any setoff or deduction, the total amount of Base Rent and
Additional Rent due for the Term. "Additional Rent" means all sums
(exclusive of Base Rent) that Tenant is required to pay Landlord.
Additional Rent and Base Rent are sometimes collectively referred to
as "Rent". Tenant shall pay and be liable for all rental, sales and
use taxes (but excluding income taxes), if any, imposed upon or
measured by Rent under applicable Law. Base Rent and recurring
monthly charges of Additional Rent shall be due and payable in advance
on the first day of each calendar month without notice or demand,
provided that the installment of Base Rent for the first full calendar
month of the Term shall be payable upon the execution of this Lease by
Tenant. All other items of Rent shall be due and payable by Tenant on
or before 30 days after billing by Landlord. All payments of Rent
shall be by good and sufficient check or by other means (such as
automatic debit or electronic transfer) acceptable to Landlord. If
Tenant fails to pay any item or installment of Rent when due, Tenant
shall pay Landlord an administration fee equal to 5% of the past due
Rent, provided that Tenant shall be entitled to a grace period of 5
days for the first 2 late payments of Rent in a given calendar year.
If the Term commences on a day other than the first day of a calendar
month or terminates on a day other than the last day of a calendar
month, the monthly Base Rent and Tenant's Pro Rata Share of any Tax
Excess (defined in Section IV.B.) or Expense Excess (defined in
Section IV.B.) for the month shall be prorated based on the number of
days in such calendar month. Landlord's acceptance of less than the
correct amount of Rent shall be considered a payment on account of the
earliest Rent due. No endorsement or statement on a check or letter
accompanying a check or payment shall be considered an accord and
satisfaction, and either party may accept the check or payment without
prejudice to that party's right to recover the balance or pursue other
available remedies. Tenant's covenant to pay Rent is independent of
every other covenant in this Lease.
B. Expense Excess and Tax Excess. Tenant shall pay Tenant's Pro Rata
-----------------------------
Share of the amount, if any, by which Expenses (defined in Section
IV.C.) for each calendar year during the Term exceed Expenses for the
Base Year (the "Expense Excess") and also the amount, if any, by which
Taxes (defined in
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Section IV.D.) for each calendar year during the Term exceed Taxes for
the Base Year (the "Tax Excess"). If Expenses and/or Taxes in any
calendar year decrease below the amount of Expenses and/or Taxes for
the Base Year, Tenant's Pro Rata Share of Expenses and/or Taxes, as
the case may be, for that calendar year shall be $0. Landlord shall
provide Tenant with a good faith estimate of the Expense Excess and of
the Tax Excess for each calendar year during the Term. On or before
the first day of each month, Tenant shall pay to Landlord a monthly
installment equal to one-twelfth of Tenant's Pro Rata Share of
Landlord's estimate of the Expense Excess and one-twelfth of Tenant's
Pro Rata Share of Landlord's estimate of the Tax Excess. If Landlord
determines that its good faith estimate of the Expense Excess or of
the Tax Excess was incorrect by a material amount, Landlord may
provide Tenant with a revised estimate. After its receipt of the
revised estimate, Tenant's monthly payments shall be based upon the
revised estimate. If Landlord does not provide Tenant with an estimate
of the Expense Excess or of the Tax Excess by January 1 of a calendar
year, Tenant shall continue to pay monthly installments based on the
previous year's estimate(s) until Landlord provides Tenant with the
new estimate. Upon delivery of the new estimate, an adjustment shall
be made for any month for which Tenant paid monthly installments based
on the previous year's estimate(s). Tenant shall pay Landlord the
amount of any underpayment within 30 days after receipt of the new
estimate. Any overpayment shall be refunded to Tenant within 30 days
or credited against the next due future installment(s) of Additional
Rent.
As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual Expenses
and Expense Excess and the actual Taxes and Tax Excess for the prior
calendar year. If the estimated Expense Excess and/or estimated Tax
Excess for the prior calendar year is more than the actual Expense
Excess and/or actual Tax Excess, as the case may be, for the prior
calendar year, Landlord shall apply any overpayment by Tenant against
Additional Rent due or next becoming due, provided if the Term expires
before the determination of the overpayment, Landlord shall refund any
overpayment to Tenant after first deducting the amount of Rent due.
If the estimated Expense Excess and/or estimated Tax Excess for the
prior calendar year is less than the actual Expense Excess and/or
actual Tax Excess, as the case may be, for such prior year, Tenant
shall pay Landlord, within 30 days after its receipt of the statement
of Expenses and/or Taxes, any underpayment for the prior calendar
year.
C. Expenses Defined. "Expenses" means all costs and expenses incurred in
----------------
each calendar year in connection with operating, maintaining,
repairing, and managing the Building and the Property, including, but
not limited to:
1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance, uniforms,
training, and retirement and pension plans.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services, legal
fees not attributable to leasing or collection activity, and
other administrative costs. Landlord, by itself or through an
affiliate, shall have the right to directly perform or provide
any services under this Lease (including management services),
provided that the cost of any such services shall not exceed the
cost that would have been incurred had Landlord entered into an
arms-length contract for such services with an unaffiliated
entity of comparable skill and experience.
3. The cost of services, including amounts paid to service providers
and the rental and purchase cost of parts, supplies, tools and
equipment.
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended coverage,
earthquake, general liability, rental loss, elevator, boiler and
other insurance customarily carried from time to time by owners
of comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges for which Landlord
is reimbursed by tenants. "Electrical Costs" means: (a) charges
paid by Landlord for electricity; (b) costs incurred in
connection with an energy management
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program for the Property; and (c) if and to the extent permitted
by Law, a fee for the services provided by Landlord in connection
with the selection of utility companies and the negotiation and
administration of contracts for electricity, provided that such
fee shall not exceed 50% of any savings obtained by Landlord.
Electrical Costs shall be adjusted as follows: (i) amounts
received by Landlord as reimbursement for above standard
electrical consumption shall be deducted from Electrical Costs;
(ii) the cost of electricity incurred to provide overtime HVAC to
specific tenants (as reasonably estimated by Landlord) shall be
deducted from Electrical Costs; and (iii) if Tenant is billed
directly for the cost of building standard electricity to the
Premises as a separate charge in addition to Base Rent, the cost
of electricity to individual tenant spaces in the Building shall
be deducted from Electrical Costs.
6. The amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course
of business) made to the Property which are: (a) performed
primarily to reduce operating expense costs or otherwise improve
the operating efficiency of the Property; or (b) required to
comply with any Laws that are enacted, or first interpreted to
apply to the Property, after the date of this Lease. The cost of
capital improvements shall be amortized by Landlord over the
lesser of the Payback Period (defined below) or 5 years. The
amortized cost of capital improvements may, at Landlord's
option, include actual or imputed interest at the rate that
Landlord would reasonably be required to pay to finance the cost
of the capital improvement. "Payback Period" means the
reasonably estimated period of time that it takes for the cost
savings resulting from a capital improvement to equal the total
cost of the capital improvement.
If Landlord incurs Expenses for the Property together with one or more
other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared
costs and expenses shall be equitably prorated and apportioned between
the Property and the other buildings or properties. Expenses shall
not include: the cost of capital improvements (except as set forth
above); depreciation; interest (except as provided above for the
amortization of capital improvements); principal payments of mortgage
and other non-operating debts of Landlord; the cost of repairs or
other work to the extent Landlord is reimbursed by insurance or
condemnation proceeds; costs in connection with leasing space in the
Building, including brokerage commissions; lease concessions,
including rental abatements and construction allowances, granted to
specific tenants; costs incurred in connection with the sale,
financing or refinancing of the Building; fines, interest and
penalties incurred due to the late payment of Taxes (defined in
Section IV.D) or Expenses; organizational expenses associated with the
creation and operation of the entity which constitutes Landlord; or
any penalties or damages that Landlord pays to Tenant under this Lease
or to other tenants in the Building under their respective leases. If
the Building is not at least 95% occupied during any calendar year or
if Landlord is not supplying services to at least 95% of the total
Rentable Square Footage of the Building at any time during a calendar
year, Expenses shall, at Landlord's option, be determined as if the
Building had been 95% occupied and Landlord had been supplying
services to 95% of the Rentable Square Footage of the Building during
that calendar year. If Tenant pays for its Pro Rata Share of Expenses
based on increases over a "Base Year", Expenses for the Base Year
shall also be determined as if the Building had been 95% occupied and
Landlord had been supplying services to 95% of the Rentable Square
Footage of the Building. The extrapolation of Expenses under this
Section shall be performed by appropriately adjusting the cost of
those components of Expenses that are impacted by changes in the
occupancy of the Building.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and
-------------
other assessments on the Building and/or Property, including, but not
limited to, assessments for special improvement districts and building
improvement districts, taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and assessments
and the Property's share of any real estate taxes and assessments
under any reciprocal easement agreement, common area agreement or
similar agreement as to the Property; (2) all personal property taxes
for property that is owned by Landlord and used in connection with the
operation, maintenance and repair of the Property; and (3) all costs
and fees
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incurred in connection with seeking reductions in any tax liabilities
described in (1) and (2), including, without limitation, any costs
incurred by Landlord for compliance, review and appeal of tax
liabilities. Without limitation, Taxes shall not include any income,
capital levy, franchise, capital stock, gift, estate or inheritance
tax. If an assessment is payable in installments, Taxes for the year
shall include the amount of the installment and any interest due and
payable during that year. For all other real estate taxes, Taxes for
that year shall, at Landlord's election, include either the amount
accrued, assessed or otherwise imposed for the year or the amount due
and payable for that year, provided that Landlord's election shall be
applied consistently throughout the Term. If a change in Taxes is
obtained for any year of the Term during which Tenant paid Tenant's
Pro Rata Share of any Tax Excess, then Taxes for that year will be
retroactively adjusted and Landlord shall provide Tenant with a
credit, if any, based on the adjustment. Likewise, if a change is
obtained for Taxes for the Base Year, Taxes for the Base Year shall be
restated and the Tax Excess for all subsequent years shall be
recomputed. Tenant shall pay Landlord the amount of Tenant's Pro Rata
Share of any such increase in the Tax Excess within 30 days after
Tenant's receipt of a statement from Landlord.
E. Tenant shall be responsible for, and shall pay prior to delinquency,
taxes or governmental service fees, possessory interest taxes, fees or
charges in lieu of any such taxes, capital levies, or other charges
imposed upon, levied with respect to, or assessed against, its
personal property, and its interest pursuant to this Lease. To the
extent that any such taxes are not separately assessed or billed to
Tenant, Tenant shall pay the amount thereof as invoiced to Tenant by
Landlord prior to the delinquency of such taxes. In the event that
the tenant improvements in the Building which correspond to the
Landlord Work, as defined in this Lease, are assessed and taxed
separately by the applicable taxing authority, then Tenant shall be
liable and shall pay that portion of the Taxes applicable to the value
of the Landlord Work in the Premises which is in excess of $35.00 per
rentable square foot of the Premises based on the value attributed
thereto by the applicable taxing authority to either (a) the
applicable taxing authority prior to the delinquency of such taxes in
the event Tenant is billed directly by such taxing authority, or (b)
the Landlord within 30 days after written demand, in the event
Landlord is billed directly by the applicable taxing authority.
F. Audit Rights. Tenant may, within 90 days after receiving Landlord's
------------
statement of Expenses, give Landlord written notice ("Review Notice")
that Tenant intends to review Landlord's records of the Expenses for
that calendar year. Within a reasonable time after receipt of the
Review Notice, Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to conduct its
review. If any records are maintained at a location other than the
office of the Building, Tenant may either inspect the records at such
other location or pay for the reasonable cost of copying and shipping
the records. If Tenant retains an agent to review Landlord's records,
the agent must be with a licensed CPA firm. Tenant shall be solely
responsible for all costs, expenses and fees incurred for the audit.
Within 60 days after the records are made available to Tenant, Tenant
shall have the right to give Landlord written notice (an "Objection
Notice") stating in reasonable detail any objection to Landlord's
statement of Expenses for that year. If Tenant fails to give Landlord
an Objection Notice within the 60 day period or fails to provide
Landlord with a Review Notice within the 90 day period described
above, Tenant shall be deemed to have approved Landlord's statement of
Expenses and shall be barred from raising any claims regarding the
Expenses for that year. If Tenant provides Landlord with a timely
Objection Notice, Landlord and Tenant shall work together in good
faith to resolve any issues raised in Tenant's Objection Notice. If
Landlord and Tenant determine that Expenses for the calendar year are
less than reported, Landlord shall provide Tenant with a credit
against the next installment of Rent in the amount of the overpayment
by Tenant. In addition, if Landlord and Tenant determine that
Expenses for the Building for the year in question were less than
stated by more than 5%, Landlord, within 30 days after its receipt of
paid invoices therefor from Tenant, shall reimburse Tenant for any
reasonable amounts paid by Tenant to third parties in connection with
such review by Tenant. Likewise, if Landlord and Tenant determine
that Expenses for the calendar year are greater than reported, Tenant
shall pay Landlord the amount of any underpayment within 30 days. The
records obtained by Tenant shall be treated as confidential. In no
event shall Tenant be permitted to examine Landlord's records or to
dispute any statement of Expenses unless Tenant has paid and continues
to pay all Rent when due.
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V. COMPLIANCE WITH LAWS; USE.
The Premises shall be used only for the Permitted Use and for no other use
whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall comply
with all Laws, including the Americans with Disabilities Act, regarding the
operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises. Tenant, within 10 days after receipt, shall provide
Landlord with copies of any notices it receives regarding a violation or alleged
violation of any Laws. Tenant shall comply with the rules and regulations of
the Building attached as EXHIBIT B and such other reasonable rules and
regulations adopted by Landlord from time to time. Tenant shall also cause its
agents, contractors, subcontractors, employees, customers, and subtenants to
comply with all rules and regulations. Landlord shall not knowingly
discriminate against Tenant in Landlord's enforcement of the rules and
regulations. In the event of a conflict between any rules and regulations
enacted after the date hereof and the Lease, this Lease shall control.
VI. SECURITY DEPOSIT.
A. The Security Deposit shall be in the form of an irrevocable letter of
credit (the "Letter of Credit") which shall: (a) be in the amount of
$933,755.00; (b) be issued on the form attached hereto as EXHIBIT E;
(c) name Landlord as its beneficiary; (d) be drawn on an FDIC insured
financial institution satisfactory to Landlord; and (e) expire no
earlier than 90 days after the Termination Date of this Lease. The
Security Deposit shall be delivered to Landlord upon the execution of
this Lease by Tenant and shall be held by Landlord without liability
for interest (unless required by Law) as security for the performance
of Tenant's obligations. The Security Deposit is not an advance
payment of Rent or a measure of Tenant's liability for damages.
Landlord may, from time to time, without prejudice to any other
remedy, use all or a portion of the Security Deposit to satisfy past
due Rent or to cure any uncured default by Tenant. If Landlord uses
the Security Deposit, Tenant shall on demand restore the Security
Deposit to its original amount. Landlord shall return any unapplied
portion of the Security Deposit to Tenant within 45 days after the
later to occur of: (1) the date Tenant surrenders possession of the
Premises to Landlord in accordance with this Lease; or (2) the
Termination Date. If Landlord transfers its interest in the Premises,
Landlord may assign the Security Deposit to the transferee and,
following the assignment, Landlord shall have no further liability for
the return of the Security Deposit. Landlord shall not be required to
keep the Security Deposit separate from its other accounts.
B. Notwithstanding anything herein to the contrary, provided Tenant is
not then in default under this Lease, Tenant shall have the right to
reduce the amount of the Security Deposit (i.e., the Letter of Credit)
by $186,751.00 on each anniversary of the Commencement Date. Such
reduction shall be accomplished by having Tenant provide Landlord with
a substitute Letter of Credit in the form of the letter of credit
attached hereto as EXHIBIT E in the reduced amount.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant with the following services: (1)
Water service for use in the lavatories on each floor on which the
Premises are located; (2) Heat and air conditioning in season during
Normal Business Hours, at such temperatures and in such amounts as are
standard for comparable buildings or as required by governmental
authority. Tenant, upon such advance notice as is reasonably required
by Landlord, shall have the right to receive HVAC service during hours
other than Normal Business Hours. Tenant shall pay Landlord the
standard charge for the additional service as reasonably determined by
Landlord from time to time. As of the date hereof, Landlord's charge
for after hours ventilation service is $35.00 per hour, per floor and
Landlord's charge for after hours air conditioning service is $50.00
per hour, per floor, subject to change; (3) Maintenance and repair of
the Property as described in Section IX.B.; (4) Janitor service on
Business Days. If Tenant's use, floor covering or other improvements
require special services in excess of the standard services for the
Building, Tenant shall pay the additional cost attributable to the
special services; (5) Elevator service; (6) Electricity to the
Premises for general office use, in accordance with and subject to the
terms and conditions in Article X; and (7) such other services as
Landlord reasonably determines are necessary or appropriate for the
Property.
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B. Landlord's failure to furnish, or any interruption or termination of,
services due to the application of Laws, the failure of any equipment,
the performance of repairs, improvements or alterations, or the
occurrence of any event or cause beyond the reasonable control of
Landlord (a "Service Failure") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement. However, if the Premises, or a material
portion of the Premises, is made untenantable for a period in excess
of 3 consecutive Business Days as a result of the Service Failure,
then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the
4th consecutive Business Day of the Service Failure and ending on the
day the service has been restored. If the entire Premises has not
been rendered untenantable by the Service Failure, the amount of
abatement that Tenant is entitled to receive shall be prorated based
upon the percentage of the Premises rendered untenantable and not used
by Tenant. In no event, however, shall Landlord be liable to Tenant
for any loss or damage, including the theft of Tenant's Property
(defined in Article XV), arising out of or in connection with the
failure of any security services, personnel or equipment.
VIII. LEASEHOLD IMPROVEMENTS.
All improvements to the Premises (collectively, "Leasehold Improvements")
shall be owned by Landlord and shall remain upon the Premises without
compensation to Tenant. However, Landlord, by written notice to Tenant within 30
days prior to the Termination Date, may require Tenant to remove, at Tenant's
expense: (1) Cable (defined in Section IX.A) installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of the Building;
and (2) any Leasehold Improvements that are performed by or for the benefit of
Tenant and, in Landlord's reasonable judgment, are of a nature that would
require removal and repair costs that are materially in excess of the removal
and repair costs associated with standard office improvements (collectively
referred to as "Required Removables"). Without limitation, it is agreed that
Required Removables include internal stairways, raised floors, personal baths
and showers, vaults, rolling file systems and structural alterations and
modifications of any type. The Required Removables designated by Landlord shall
be removed by Tenant before the Termination Date, provided that upon prior
written notice to Landlord, Tenant may remain in the Premises for up to 5 days
after the Termination Date for the sole purpose of removing the Required
Removables. Tenant's possession of the Premises shall be subject to all of the
terms and conditions of this Lease, including the obligation to pay Rent on a
per diem basis at the rate in effect for the last month of the Term. Tenant
shall repair damage caused by the installation or removal of Required
Removables. If Tenant fails to remove any Required Removables or perform
related repairs in a timely manner, Landlord, at Tenant's expense, may remove
and dispose of the Required Removables and perform the required repairs.
Tenant, within 30 days after receipt of an invoice, shall reimburse Landlord for
the reasonable costs incurred by Landlord. Notwithstanding the foregoing,
Tenant, at the time it requests approval for a proposed Alteration (defined in
Section IX.C), may request in writing that Landlord advise Tenant whether the
Alteration or any portion of the Alteration will be designated as a Required
Removable. Within 10 days after receipt of Tenant's request, Landlord shall
advise Tenant in writing as to which portions of the Alteration, if any, will be
considered to be Required Removables.
IX. REPAIRS AND ALTERATIONS.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost and
---------------------------
expense, promptly perform all maintenance and repairs to the Premises
that are not Landlord's express responsibility under this Lease, and
shall keep the Premises in good condition and repair, reasonable wear
and tear excepted. Tenant's repair obligations include, without
limitation, repairs to: (1) floor covering; (2) interior partitions;
(3) doors; (4) the interior side of demising walls; (5) electronic,
phone and data cabling and related equipment (collectively, "Cable")
that is installed by or for the exclusive benefit of Tenant and
located in the Premises or other portions of the Building; (6)
supplemental air conditioning units, private showers and kitchens,
including hot water heaters, plumbing, and similar facilities serving
Tenant exclusively; and (7) Alterations performed by contractors
retained by Tenant, including related HVAC balancing. All work shall
be performed in
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accordance with the rules and procedures described in Section IX.C.
below. If Tenant fails to make any repairs to the Premises for more
than 15 days after notice from Landlord (although notice shall not be
required if there is an emergency), Landlord may make the repairs, and
Tenant shall pay the reasonable cost of the repairs to Landlord within
30 days after receipt of an invoice, together with an administrative
charge in an amount equal to 10% of the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and maintain in
-----------------------------
good repair and working order and make repairs to and perform
maintenance upon: (1) structural elements of the Building; (2)
mechanical (including HVAC), electrical, plumbing and fire/life safety
systems serving the Building in general; (3) Common Areas; (4) the
roof of the Building; (5) exterior windows of the Building; and (6)
elevators serving the Building. Landlord shall promptly make repairs
(considering the nature and urgency of the repair) for which Landlord
is responsible.
C. Alterations. Tenant shall not make alterations, additions or
-----------
improvements to the Premises or install any Cable in the Premises or
other portions of the Building (collectively referred to as
"Alterations") without first obtaining the written consent of Landlord
in each instance, which consent shall not be unreasonably withheld or
delayed. However, Landlord's consent shall not be required for any
Alteration that satisfies all of the following criteria (a "Cosmetic
Alteration"): (1) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (2) is not
visible from the exterior of the Premises or Building; (3) will not
affect the systems or structure of the Building; and (4) does not
require work to be performed inside the walls or above the ceiling of
the Premises. However, even though consent is not required, the
performance of Cosmetic Alterations shall be subject to all the other
provisions of this Section IX.C. Prior to starting work, Tenant shall
furnish Landlord with plans and specifications reasonably acceptable
to Landlord; names of contractors reasonably acceptable to Landlord
(provided that Landlord may designate specific contractors with
respect to Building systems); copies of contracts; necessary permits
and approvals; evidence of contractor's and subcontractor's insurance
in amounts reasonably required by Landlord; and any security for
performance that is reasonably required by Landlord. Changes to the
plans and specifications must also be submitted to Landlord for its
approval. Alterations shall be constructed in a good and workmanlike
manner using materials of a quality that is at least equal to the
quality designated by Landlord as the minimum standard for the
Building. Landlord may designate reasonable rules, regulations and
procedures for the performance of work in the Building and, to the
extent reasonably necessary to avoid disruption to the occupants of
the Building, shall have the right to designate the time when
Alterations may be performed. Tenant shall reimburse Landlord within
30 days after receipt of an invoice for sums paid by Landlord for
third party examination of Tenant's plans for non-Cosmetic
Alterations. In addition, within 30 days after receipt of an invoice
from Landlord, Tenant shall pay Landlord a fee for Landlord's
oversight and coordination of any non-Cosmetic Alterations equal to
10% of the cost of the non-Cosmetic Alterations. Upon completion,
Tenant shall furnish "as-built" plans (except for Cosmetic
Alterations), completion affidavits, full and final waivers of lien in
recordable form, and receipted bills covering all labor and materials.
Tenant shall assure that the Alterations comply with all insurance
requirements and Laws. Landlord's approval of an Alteration shall not
be a representation by Landlord that the Alteration complies with
applicable Laws or will be adequate for Tenant's use.
X. USE OF ELECTRICAL SERVICES BY TENANT.
A. Electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in
Expenses (except as provided in Section X.B. for excess usage); (2) by
a separate charge payable by Tenant to Landlord within 30 days after
billing by Landlord; or (3) by separate charge billed by the
applicable utility company and payable directly by Tenant. Electrical
service to the Premises may be furnished by one or more companies
providing electrical generation, transmission and distribution
services, and the cost of electricity may consist of several different
components or separate charges for such services, such as generation,
distribution and stranded cost charges. Landlord shall have the
exclusive right to select any company providing electrical service to
the Premises, to aggregate the electrical service for the Property and
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Premises with other buildings, to purchase electricity through a
broker and/or buyers group and to change the providers and manner of
purchasing electricity. Landlord shall be entitled to receive a fee
(if permitted by Law) for the selection of utility companies and the
negotiation and administration of contracts for electricity, provided
that the amount of such fee shall not exceed 50% of any savings
obtained by Landlord.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, use beyond Normal Business Hours or overall
load, that which Landlord deems to be standard for the Building. If
Tenant requests permission to consume excess electrical service,
Landlord may refuse to consent or may condition consent upon
conditions that Landlord reasonably elects (including, without
limitation, the installation of utility service upgrades, meters,
submeters, air handlers or cooling units), and the additional usage
(to the extent permitted by Law), installation and maintenance costs
shall be paid by Tenant. Landlord shall have the right to separately
meter electrical usage for the Premises and to measure electrical
usage by survey or other commonly accepted methods.
XI. ENTRY BY LANDLORD.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises, to clean and make repairs, alterations
or additions to the Premises, and to conduct or facilitate repairs, alterations
or additions to any portion of the Building, including other tenants' premises.
Except in emergencies or to provide janitorial and other Building services after
Normal Business Hours, Landlord shall provide Tenant with reasonable prior
notice of entry into the Premises, which may be given orally. If reasonably
necessary for the protection and safety of Tenant and its employees, Landlord
shall have the right to temporarily close all or a portion of the Premises to
perform repairs, alterations and additions. However, except in emergencies,
Landlord will not close the Premises if the work can reasonably be completed on
weekends and after Normal Business Hours. Entry by Landlord shall not
constitute constructive eviction or entitle Tenant to an abatement or reduction
of Rent. Notwithstanding the foregoing, except in emergency situations as
determined by Landlord, Landlord shall exercise reasonable efforts to perform
any entry into the Premises in a manner that is reasonably designed to minimize
interference with the operation of Tenant's business in the Premises.
XII. ASSIGNMENT AND SUBLETTING.
A. Except in connection with a Permitted Transfer (defined in Section
XII.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 if Landlord does not elect to exercise its
termination rights under Section XII.B below. 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 after the
expiration of the notice and cure periods in this Lease; or (5) any
portion of the Building or Premises would likely become subject to
additional or different Laws as a consequence of the proposed
Transfer. Tenant shall not be entitled to receive monetary damages
based upon a claim that Landlord unreasonably withheld its consent to
a proposed Transfer and Tenant's sole remedy shall be an action to
enforce any such provision through specific performance or declaratory
judgment. Any attempted Transfer in violation of this Article shall,
at Landlord's option, be void. Consent by Landlord to one or more
Transfer(s) shall not operate as a waiver of Landlord's rights to
approve any subsequent Transfers. In no event shall any Transfer or
Permitted Transfer release or relieve Tenant from any obligation under
this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant
shall provide Landlord with financial statements for the proposed
transferee, a complete copy of the proposed assignment, sublease and
other contractual documents and such other information as Landlord may
reasonably request. Landlord shall, by written notice to Tenant
within 30 days of its receipt of the required information and
documentation, either: (1) consent to the Transfer by the execution of
a
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consent agreement in a form reasonably designated by Landlord or
reasonably refuse to consent to the Transfer in writing; or (2)
exercise its right to terminate this Lease with respect to the portion
of the Premises that Tenant is proposing to assign or sublet. Any
such termination shall be effective on the proposed effective date of
the Transfer for which Tenant requested consent. Tenant shall pay
Landlord a review fee of $750.00 for Landlord's review of any
Permitted Transfer or requested Transfer, provided if Landlord's
actual reasonable costs and expenses (including reasonable attorney's
fees) exceed $750.00, Tenant shall reimburse Landlord for its actual
reasonable costs and expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 60% of all rent and other consideration
which Tenant receives as a result of a Transfer that is in excess of
the Rent payable to Landlord for the portion of the Premises and Term
covered by the Transfer. Tenant shall pay Landlord for Landlord's
share of any excess within 30 days after Tenant's receipt of such
excess consideration. Tenant may deduct from the excess all
reasonable and customary expenses directly incurred by Tenant
attributable to the Transfer (other than Landlord's review fee),
including brokerage fees, legal fees and construction costs. If
Tenant is in Monetary Default (defined in Section XIX.A. 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 if the entity which owns or controls a majority of
the voting shares/rights at any 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 recognized security exchange, or if
at least 80% 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 to a successor
to Tenant by purchase, merger, consolidation or reorganization without
the consent of Landlord, provided that all of the following conditions
are satisfied (a "Permitted Transfer"): (1) Tenant is not in default
under this Lease; (2) Tenant's successor shall own all or
substantially all of the assets of Tenant; (3) Tenant's successor
shall have a net worth which is at least equal to the greater of
Tenant's net worth at the date of this Lease or Tenant's net worth as
of the day prior to the proposed purchase, merger, consolidation or
reorganization; (4) the Permitted Use does not allow the Premises to
be used for retail purposes; and (5) Tenant shall give Landlord
written notice at least 30 days prior to the effective date of the
proposed purchase, merger, consolidation or reorganization. Tenant's
notice to Landlord shall include information and documentation showing
that each of the above conditions has been satisfied. If requested by
Landlord, Tenant's successor shall sign a commercially reasonable form
of assumption agreement.
XIII. LIENS.
Tenant shall not permit mechanic's or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for benefit of Tenant. If a lien is so
placed, Tenant shall, within 10 days of notice from Landlord of the filing of
the lien, fully discharge the lien by settling the claim which resulted in the
lien or by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law. If Tenant fails to discharge the lien, then, in addition
to any other right or remedy of Landlord, Landlord may bond or insure over the
lien or otherwise discharge the lien. Tenant shall reimburse Landlord for any
amount paid by Landlord to bond or insure over the lien or discharge the lien,
including, without limitation, reasonable attorneys' fees (if and to the extent
permitted by Law) within 30 days after receipt of an invoice from Landlord.
XIV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent caused by the negligence or willful misconduct of
Landlord or any Landlord Related Parties (defined below), Tenant shall
indemnify, defend and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees,
Mortgagee(s) (defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities, obligations,
damages, penalties, claims, actions, costs, charges and expenses,
including,
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without limitation, reasonable attorneys' fees and other professional
fees (if and to the extent permitted by Law), which may be imposed
upon, incurred by or asserted against Landlord or any of the Landlord
Related Parties and arising out of or in connection with any damage or
injury occurring in the Premises or any acts or omissions (including
violations of Law) of Tenant, the Tenant Related Parties (defined
below) or any of Tenant's transferees, contractors or licensees.
B. Except to the extent caused by the negligence or willful misconduct of
Tenant or any Tenant Related Parties (defined below), Landlord shall
indemnify, defend and hold Tenant, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees and agents
("Tenant Related Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and
expenses, including, without limitation, reasonable attorneys' fees
and other professional fees (if and to the extent permitted by Law),
which may be imposed upon, incurred by or asserted against Tenant or
any of the Tenant Related Parties and arising out of or in connection
with the acts or omissions (including violations of Law) of Landlord,
the Landlord Related Parties or any of Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable for, and
Tenant waives, all claims for loss or damage to Tenant's business or
loss, theft or damage to Tenant's Property or the property of any
person claiming by, through or under Tenant resulting from: (1) wind
or weather; (2) the failure of any sprinkler, heating or air-
conditioning equipment, any electric wiring or any gas, water or steam
pipes; (3) the backing up of any sewer pipe or downspout; (4) the
bursting, leaking or running of any tank, water closet, drain or other
pipe; (5) water, snow or ice upon or coming through the roof,
skylight, stairs, doorways, windows, walks or any other place upon or
near the Building; (6) any act or omission of any party other than
Landlord or Landlord Related Parties; and (7) any causes not
reasonably within the control of Landlord. Tenant shall insure itself
against such losses under Article XV below.
XV. INSURANCE.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk
Property/Business Interruption Insurance written at replacement cost value and
with a replacement cost endorsement covering all of Tenant's trade fixtures,
equipment, furniture and other personal property within the Premises ("Tenant's
Property"); (3) Workers' Compensation Insurance as required by the state in
which the Premises is located and in amounts as may be required by applicable
statute; and (4) Employers Liability Coverage of at least $1,000,000.00 per
occurrence. Any company writing any of Tenant's Insurance shall have an A.M.
Best rating of not less than A-VIII. All Commercial General Liability Insurance
policies shall name Tenant as a named insured and Landlord (or any successor),
Equity Office Properties Trust, a Maryland real estate investment trust, EOP
Operating Limited Partnership, a Delaware limited partnership, and their
respective members, principals, beneficiaries, partners, officers, directors,
employees, and agents, and other designees of Landlord as the interest of such
designees shall appear, as additional insureds. All policies of Tenant's
Insurance shall contain endorsements that the insurer(s) shall give Landlord and
its designees at least 30 days' advance written notice of any change,
cancellation, termination or lapse of insurance. Tenant shall provide Landlord
with a certificate of insurance evidencing Tenant's Insurance prior to the
earlier to occur of the Commencement Date or the date Tenant is provided with
possession of the Premises for any reason, and upon renewals at least 15 days
prior to the expiration of the insurance coverage. So long as the same is
available at commercially reasonable rates, Landlord shall maintain so called
All Risk property insurance on the Building at replacement cost value, as
reasonably estimated by Landlord. Except as specifically provided to the
contrary, the limits of either party's' insurance shall not limit such party's
liability under this Lease.
XVI. SUBROGATION.
Notwithstanding anything in this Lease to the contrary, Landlord and Tenant
hereby waive and shall cause their respective insurance carriers to waive any
and all rights of recovery, claim, action or causes of action against the other
and their respective trustees, principals, beneficiaries, partners, officers,
directors, agents, and employees, for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to Tenant's Property, the Building, the
Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of
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recovery, claims, actions or causes of action arising out of the negligence of
Landlord or any Landlord Related Parties or the negligence of Tenant or any
Tenant Related Parties, which loss or damage is (or would have been, had the
insurance required by this Lease been carried) covered by insurance.
XVII. CASUALTY DAMAGE.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing. During
any period of time that all or a material portion of the Premises is
rendered untenantable as a result of a fire or other casualty, the
Rent shall abate for the portion of the Premises that is untenantable
and not used by Tenant. Landlord shall have the right to terminate
this Lease if: (1) the Building shall be damaged so that, in
Landlord's reasonable judgment, substantial alteration or
reconstruction of the Building shall be required (whether or not the
Premises has been damaged); (2) Landlord is not permitted by Law to
rebuild the Building in substantially the same form as existed before
the fire or casualty; (3) the Premises have been materially damaged
and there is less than 2 years of the Term remaining on the date of
the casualty; (4) any Mortgagee requires that the insurance proceeds
be applied to the payment of the mortgage debt; or (5) a material
uninsured loss to the Building occurs. Landlord may exercise its
right to terminate this Lease by notifying Tenant in writing within 90
days after the date of the casualty. If Landlord does not terminate
this Lease, Landlord shall commence and proceed with reasonable
diligence to repair and restore the Building and the Leasehold
Improvements (excluding any Alterations that were performed by Tenant
in violation of this Lease). However, in no event shall Landlord be
required to spend more than the insurance proceeds received by
Landlord. Landlord shall not be liable for any loss or damage to
Tenant's Property or to the business of Tenant resulting in any way
from the fire or other casualty or from the repair and restoration of
the damage. Landlord and Tenant hereby waive the provisions of any
Law relating to the matters addressed in this Article, and agree that
their respective rights for damage to or destruction of the Premises
shall be those specifically provided in this Lease.
B. If all or any portion of the Premises shall be made untenantable by
fire or other casualty, Landlord shall, with reasonable promptness,
cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of
time required to substantially complete the repair and restoration of
the Premises and make the Premises tenantable again, using standard
working methods ("Completion Estimate"). If the Completion Estimate
indicates that the Premises cannot be made tenantable within 270 days
from the date the repair and restoration is started, then regardless
of anything in Section XVII.A above to the contrary, either party
shall have the right to terminate this Lease by giving written notice
to the other of such election within 10 days after receipt of the
Completion Estimate. Tenant, however, shall not have the right to
terminate this Lease if the fire or casualty was caused by the
negligence or intentional misconduct of Tenant, Tenant Related Parties
or any of Tenant's transferees, contractors or licensees.
XVIII. CONDEMNATION.
Either party may terminate this Lease if the whole or any material part of
the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building or Property which would leave the remainder of
the Building unsuitable for use as an office building in a manner comparable to
the Building's use prior to the Taking. In order to exercise its right to
terminate the Lease, Landlord or Tenant, as the case may be, must provide
written notice of termination to the other within 45 days after the terminating
party first receives notice of the Taking. Any such termination shall be
effective as of the date the physical taking of the Premises or the portion of
the Building or Property occurs. If this Lease is not terminated, the Rentable
Square Footage of the Building, the Rentable Square Footage of the Premises and
Tenant's Pro Rata Share shall, if applicable, be appropriately adjusted. In
addition, Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term of this Lease effective when the physical
taking of the portion of the Premises occurs. All compensation awarded for a
Taking, or sale proceeds, shall be the property of Landlord, any right to
receive compensation or proceeds being expressly waived by Tenant. However,
Tenant may file a separate claim at its sole cost and expense for Tenant's
Property and Tenant's reasonable relocation expenses, provided the filing of the
claim does not diminish the award which would otherwise be receivable by
Landlord.
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XIX. EVENTS OF DEFAULT.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent, if
the failure continues for 3 days after written notice to Tenant
("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply with any
term, provision or covenant of this Lease, if the failure is not cured
within 10 days after written notice to Tenant. However, if Tenant's
failure to comply cannot reasonably be cured within 10 days, Tenant
shall be allowed additional time (not to exceed 60 days) as is
reasonably necessary to cure the failure so long as: (1) Tenant
commences to cure the failure within 10 days, and (2) Tenant
diligently pursues a course of action that will cure the failure and
bring Tenant back into compliance with the Lease. However, if
Tenant's failure to comply creates a hazardous condition, the failure
must be cured immediately upon notice to Tenant. In addition, if
Landlord provides Tenant with notice of Tenant's failure to comply
with any particular term, provision or covenant of the Lease on 3
occasions during any 12 month period, Tenant's subsequent violation of
such term, provision or covenant shall, at Landlord's option, be an
incurable event of default by Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in fraud
of creditors or makes an assignment for the benefit of creditors, or
admits in writing its inability to pay its debts when due.
D. The leasehold estate is taken by process or operation of Law.
E. In the case of any ground floor or retail Tenant, Tenant does not take
possession of, or abandons or vacates all or any portion of the
Premises.
F. Tenant is in default beyond any notice and cure period under any other
lease or agreement with Landlord, including, without limitation, any
lease or agreement for parking.
XX. REMEDIES.
A. Upon the occurrence of any event or events of default under this
Lease, whether enumerated in Article XIX or not, Landlord shall have
the option to pursue any one or more of the following remedies without
any notice (except as expressly prescribed herein) or demand
whatsoever (and without limiting the generality of the foregoing,
Tenant hereby specifically waives notice and demand for payment of
Rent or other obligations and waives any and all other notices or
demand requirements imposed by applicable law):
1. Terminate this Lease and Tenant's right to possession of the
Premises and recover from Tenant an award of damages equal to the
sum of the following:
(a) The Worth at the Time of Award of the unpaid Rent which had
been earned at the time of termination;
(b) The Worth at the Time of Award of the amount by which the
unpaid Rent which would have been earned after termination
until the time of award exceeds the amount of such Rent loss
that Tenant affirmatively proves could have been reasonably
avoided;
(c) The Worth at the Time of Award of the amount by which the
unpaid Rent for the balance of the Term after the time of
award exceeds the amount of such Rent loss that Tenant
affirmatively proves could be reasonably avoided;
(d) Any other amount necessary to compensate Landlord for all
the detriment either proximately caused by Tenant's failure
to perform Tenant's obligations under this Lease or which in
the ordinary course of things would be likely to result
therefrom; and
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(e) All such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time under
applicable law.
The "Worth at the Time of Award" of the amounts referred to in
parts (a) and (b) above, shall be computed by allowing interest
at the lesser of a per annum rate equal to: (i) the greatest per
annum rate of interest permitted from time to time under
applicable law, or (ii) the Prime Rate plus five percent (5%).
For purposes hereof, the "Prime Rate" shall be the per annum
interest rate publicly announced as its prime or base rate by a
federally insured bank selected by Landlord in the State of
California. The "Worth at the Time of Award" of the amount
referred to in part (c), above, shall be computed by discounting
such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent (1%);
2. Employ the remedy described in California Civil Code (S) 1951.4
(Landlord may continue this Lease in effect after Tenant's breach
and abandonment and recover Rent as it becomes due, if Tenant has
the right to sublet or assign, subject only to reasonable
limitations); or
3. Notwithstanding Landlord's exercise of the remedy described in
California Civil Code (S) 1951.4 in respect of an event or events
of default, at such time thereafter as Landlord may elect in
writing, to terminate this Lease and Tenant's right to possession
of the Premises and recover an award of damages as provided above
in Paragraph XX.A.1.
B. The subsequent acceptance of Rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of Tenant
to pay the particular Rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such
Rent. No waiver by Landlord of any breach hereof shall be effective
unless such waiver is in writing and signed by Landlord.
C. TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF
THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (C) AND 1179 OF THE
CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS AND
RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE LEASE TERM
PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR
RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF TENANT'S
BREACH. TENANT ALSO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR
RELATING TO THIS LEASE.
D. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and each and
every right and remedy shall be cumulative and in addition to any
other right or remedy given hereunder or now or hereafter existing by
agreement, applicable law or in equity. In addition to other remedies
provided in this Lease, Landlord shall be entitled, to the extent
permitted by applicable law, to injunctive relief, or to a decree
compelling performance of any of the covenants, agreements, conditions
or provisions of this Lease, or to any other remedy allowed to
Landlord at law or in equity. Forbearance by Landlord to enforce one
or more of the remedies herein provided upon an event of default shall
not be deemed or construed to constitute a waiver of such default.
E. This Article XX shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
XXI. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD
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NOR ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL
GIVE LANDLORD AND THE MORTGAGEE(S) (DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT
HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN ARTICLE XXVI BELOW) ON THE
PROPERTY, BUILDING OR PREMISES, NOTICE AND REASONABLE TIME TO CURE THE ALLEGED
DEFAULT.
XXII. NO WAIVER.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys
to the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. QUIET ENJOYMENT.
Tenant shall, and may peacefully have, hold and enjoy the Premises, subject
to the terms of this Lease, provided Tenant pays the Rent and fully performs all
of its covenants and agreements. This covenant and all other covenants of
Landlord shall be binding upon Landlord and its successors only during its or
their respective periods of ownership of the Building, and shall not be a
personal covenant of Landlord or the Landlord Related Parties.
XXIV. RELOCATION.
Landlord, at its expense, at any time before or during the Term, may
relocate Tenant from the Premises to reasonably comparable space ("Relocation
Space") within the Building or adjacent buildings within the same project upon
60 days' prior written notice to Tenant, provided that the Relocation Space
shall be located on or above the 6th floor of the Building. From and after the
date of the relocation, "Premises" shall refer to the Relocation Space into
which Tenant has been moved and the Base Rent and Tenant's Pro Rata Share shall
be adjusted based on the rentable square footage of the Relocation Space.
Landlord shall pay Tenant's reasonable costs for moving Tenant's furniture and
equipment and printing and distributing notices to Tenant's customers of
Tenant's change of address and one month's supply of stationery showing the new
address.
XXV. HOLDING OVER.
Except for any permitted occupancy by Tenant under Article VIII, if Tenant
fails to surrender the Premises at the expiration or earlier termination of this
Lease, occupancy of the Premises after the termination or expiration shall be
that of a tenancy at sufferance. Tenant's occupancy of the Premises during the
holdover shall be subject to all the terms and provisions of this Lease and
Tenant shall pay an amount (on a per month basis without reduction for partial
months during the holdover) equal to 150% of the greater of: (1) the sum of the
Base Rent and Additional Rent due for the period immediately preceding the
holdover; or (2) the fair market gross rental for the Premises as reasonably
determined by Landlord. No holdover by Tenant or payment by Tenant after the
expiration or early termination of this Lease shall be construed to extend the
Term or prevent Landlord from immediate recovery of possession of the Premises
by summary proceedings or otherwise. In addition to the payment of the amounts
provided above, if Landlord is unable to deliver possession of the Premises to a
new tenant, or to perform improvements for a new tenant, as a result of Tenant's
holdover and Tenant fails to vacate the Premises within 15 days after Landlord
notifies Tenant of Landlord's inability to deliver possession, or perform
improvements, Tenant shall be liable to Landlord for all damages, including,
without limitation, consequential damages, that Landlord suffers from the
holdover.
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively referred to as a "Mortgage").
The party having the benefit of a Mortgage shall be referred to as a
"Mortgagee". This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination
agreement in favor of the Mortgagee. In lieu of having the Mortgage be superior
to this Lease, a Mortgagee shall have the right at any time to subordinate its
Mortgage to this Lease. If requested by a successor-in-interest to all or a
part of Landlord's interest in the Lease, Tenant shall, without charge, attorn
to the successor-in-interest. Landlord and Tenant shall each, within 15 days
after receipt of a written request from the other, execute and deliver an
estoppel certificate to those parties as are reasonably
17
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requested by the other (including a Mortgagee or prospective purchaser). The
estoppel certificate shall include a statement certifying that this Lease is
unmodified (except as identified in the estoppel certificate) and in full force
and effect, describing the dates to which Rent and other charges have been paid,
representing that, to such party's actual knowledge, there is no default (or
stating the nature of the alleged default) and indicating other matters with
respect to the Lease that may reasonably be requested. Notwithstanding the
foregoing, upon written request by Tenant, Landlord will use reasonable efforts
to obtain a non-disturbance, subordination and attornment agreement from
Landlord's then current Mortgagee on such Mortgagee's then current standard form
of agreement. "Reasonable efforts" of Landlord shall not require Landlord to
incur any cost, expense or liability to obtain such agreement, it being agreed
that Tenant shall be responsible for any fee or review costs charged by the
Mortgagee. Upon request of Landlord, Tenant will execute the Mortgagee's form of
non-disturbance, subordination and attornment agreement and return the same to
Landlord for execution by the Mortgagee. Landlord's failure to obtain a non-
disturbance, subordination and attornment agreement for Tenant shall have no
effect on the rights, obligations and liabilities of Landlord and Tenant or be
considered to be a default by Landlord hereunder.
XXVII. ATTORNEYS' FEES.
If either party institutes a suit against the other for violation of or to
enforce any covenant or condition of this Lease, or if either party intervenes
in any suit in which the other is a party to enforce or protect its interest or
rights, the prevailing party shall be entitled to all of its costs and expenses,
including, without limitation, reasonable attorneys' fees.
XXVIII. NOTICE.
If a demand, request, approval, consent or notice (collectively referred to
as a "notice") shall or may be given to either party by the other, the notice
shall be in writing and delivered by hand or sent by registered or certified
mail with return receipt requested, or sent by overnight or same day courier
service at the party's respective Notice Address(es) set forth in Article I,
except that if Tenant has vacated the Premises (or if the Notice Address for
Tenant is other than the Premises, and Tenant has vacated such address) without
providing Landlord a new Notice Address, Landlord may serve notice in any manner
described in this Article or in any other manner permitted by Law. Each notice
shall be deemed to have been received or given on the earlier to occur of actual
delivery or the date on which delivery is refused, or, if Tenant has vacated the
Premises or the other Notice Address of Tenant without providing a new Notice
Address, three (3) days after notice is deposited in the U.S. mail or with a
courier service in the manner described above. Either party may, at any time,
change its Notice Address by giving the other party written notice of the new
address in the manner described in this Article.
XXIX. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
the areas within the Premises used for the installation of utility lines and
other installations serving occupants of the Building. Landlord has the right to
change the Building's name or address. Landlord also has the right to make such
other changes to the Property and Building as Landlord deems appropriate,
provided the changes do not materially affect Tenant's ability to use the
Premises for the Permitted Use. Landlord shall also have the right (but not the
obligation) to temporarily close the Building if Landlord reasonably determines
that there is an imminent danger of significant damage to the Building or of
personal injury to Landlord's employees or the occupants of the Building. The
circumstances under which Landlord may temporarily close the Building shall
include, without limitation, electrical interruptions, hurricanes and civil
disturbances. A closure of the Building under such circumstances shall not
constitute a constructive eviction nor entitle Tenant to an abatement or
reduction of Rent.
XXX. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's right of
possession, Tenant shall remove Tenant's Property (defined in Article XV) from
the Premises, and quit and surrender the Premises to Landlord, broom clean, and
in good order, condition and repair, ordinary wear and tear excepted. Tenant
shall also be required to remove the Required Removables in accordance with
Article VIII. If Tenant fails to remove any of Tenant's Property within 2 days
after the termination of this Lease or of Tenant's right to possession,
Landlord, at
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Tenant's sole cost and expense, shall be entitled (but not obligated) to remove
and store Tenant's Property. Landlord shall not be responsible for the value,
preservation or safekeeping of Tenant's Property. Tenant shall pay Landlord,
upon demand, the expenses and storage charges incurred for Tenant's Property. In
addition, if Tenant fails to remove Tenant's Property from the Premises or
storage, as the case may be, within 30 days after written notice, Landlord may
deem all or any part of Tenant's Property to be abandoned, and title to Tenant's
Property shall be deemed to be immediately vested in Landlord.
XXXI. MISCELLANEOUS.
A. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of the
State of California and Landlord and Tenant hereby irrevocably consent
to the jurisdiction and proper venue of such state. If any term or
provision of this Lease shall to any extent be invalid or
unenforceable, the remainder of this Lease shall not be affected, and
each provision of this Lease shall be valid and enforced to the
fullest extent permitted by Law. The headings and titles to the
Articles and Sections of this Lease are for convenience only and shall
have no effect on the interpretation of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an action by
Landlord or Tenant, the period of time for the performance of such
action shall be extended by the number of days that the performance is
actually delayed due to strikes, acts of God, shortages of labor or
materials, war, civil disturbances and other causes beyond the
reasonable control of the performing party ("Force Majeure").
However, events of Force Majeure shall not extend any period of time
for the payment of Rent or other sums payable by either party or any
period of time for the written exercise of an option or right by
either party.
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations under this Lease and in the
Building and/or Property referred to herein, and upon such transfer
Landlord shall be released from any further obligations hereunder, and
Tenant agrees to look solely to the successor in interest of Landlord
for the performance of such obligations.
F. Tenant represents that it has dealt directly with and only with the
Broker as a broker in connection with this Lease. Tenant shall
indemnify and hold Landlord and the Landlord Related Parties harmless
from all claims of any other brokers claiming to have represented
Tenant in connection with this Lease. Landlord agrees to indemnify
and hold Tenant and the Tenant Related Parties harmless from all
claims of any brokers claiming to have represented Landlord in
connection with this Lease.
G. Tenant covenants, warrants and represents that: (1) each individual
executing, attesting and/or delivering this Lease on behalf of Tenant
is authorized to do so on behalf of Tenant; (2) this Lease is binding
upon Tenant; and (3) Tenant is duly organized and legally existing in
the state of its organization and is qualified to do business in the
State of California. If there is more than one Tenant, or if Tenant
is comprised of more than one party or entity, the obligations imposed
upon Tenant shall be joint and several obligations of all the parties
and entities. Notices, payments and agreements given or made by, with
or to any one person or entity shall be deemed to have been given or
made by, with and to all of them.
H. Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension rights granted to Tenant. This Lease
shall create only the relationship of landlord and tenant between the
parties, and not a partnership, joint venture or any other
relationship. This Lease and the covenants and conditions in this
Lease shall inure only to the benefit of and be binding only upon
Landlord and Tenant and their permitted successors and assigns.
I. The expiration of the Term, whether by lapse of time or otherwise,
shall not relieve either party of any obligations which accrued prior
to or which may
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continue to accrue after the expiration or early termination of this
Lease. Without limiting the scope of the prior sentence, it is agreed
that Tenant's obligations under Sections IV.A, IV.B., VIII, XIV, XX,
XXV and XXX shall survive the expiration or early termination of this
Lease.
J. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any
party hereto until an original copy of this Lease has been signed by
such party.
K. All understandings and agreements previously made between the parties
are superseded by this Lease, and neither party is relying upon any
warranty, statement or representation not contained in this Lease.
This Lease may be modified only by a written agreement signed by
Landlord and Tenant.
L. Tenant, within 15 days after request, shall provide Landlord with a
current financial statement and such other information as Landlord may
reasonably request in order to create a "business profile" of Tenant
and determine Tenant's ability to fulfill its obligations under this
Lease. Landlord, however, shall not require Tenant to provide such
information unless Landlord is requested to produce the information in
connection with a proposed financing or sale of the Building. Upon
written request by Tenant, Landlord shall enter into a commercially
reasonable confidentiality agreement covering any confidential
information that is disclosed by Tenant.
M. Pursuant to City Planning Code Section 163, the Landlord has entered
into an agreement with the Department of City Planning for the City of
San Francisco, California to provide and implement a Transportation
Management Program for building tenants and to participate in a
program designed to coordinate commute alternatives marketing and
brokerage for greater downtown San Francisco, California employees.
During the Term of this Lease, Landlord agrees to provide
transportation brokerage and commute assistance services to Tenant and
to assist Tenant in meeting the transportation needs of its employees.
Tenant agrees to cooperate with and assist the Landlord's
transportation management coordinator (the "Coordinator"), through
designation of a responsible employee to distribute to Tenant's
employees written materials promoting and encouraging the use of
public transit and/or ridesharing, and distribute and return to the
Coordinator transportation survey questionnaire forms. Tenant may
agree, at its option, to participate in other activities required of
Landlord as incentives for increasing use of public transit and/or
ridesharing by employees in the Building.
XXXII. ENTIRE AGREEMENT.
This Lease and the following exhibits and attachments constitute the entire
agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: EXHIBIT A (Outline and Location of Premises),
EXHIBIT B (Rules and Regulations), EXHIBIT C (Commencement Letter), EXHIBIT D
(Work Letter Agreement), EXHIBIT D-1 (Summary of Final Plans) and EXHIBIT E
(Form of Letter of Credit).
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Landlord and Tenant have executed this Lease as of the day and year first
above written.
LANDLORD:
EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership,
a Delaware limited partnership,
its sole member
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general partner
By: /s/ Robert E. Dezzutti
----------------------------
Name: Robert E. Dezzutti
----------------------------
Title: Vice President
----------------------------
TENANT:
C-BRIDGE INTERNET SOLUTIONS,
A DELAWARE CORPORATION
By: /s/ Rick Wester
----------------------------------
Name: Rick Wester
----------------------------------
Title: Vice President
---------------------------------
By: /s/ Clifford B. Thompson
----------------------------------
Name: Clifford B. Thompson
----------------------------------
Title: Vice President and General Counsel
----------------------------------
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EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
--------------------------------
This Exhibit is attached to and made a part of the Lease dated as of March 15,
2000, by and between EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and C-BRIDGE INTERNET SOLUTIONS, A DELAWARE
CORPORATION ("Tenant") for space in the Building located at 150 California
Street, San Francisco, California.
Non-detailed drawing on floor space omitted.
A-1
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EXHIBIT B
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage (if any), the Property and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material shall be placed, emptied, or thrown in those areas. At
no time shall Tenant permit Tenant's employees to loiter in Common Areas or
elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not be
responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to windows,
doors or other parts of the Building, except those of such color, size,
style and in such places as are first approved in writing by Landlord. All
tenant identification and suite numbers at the entrance to the Premises
shall be installed by Landlord, at Tenant's cost and expense, using the
standard graphics for the Building. Except in connection with the hanging
of lightweight pictures and wall decorations, no nails, hooks or screws
shall be inserted into any part of the Premises or Building except by the
Building maintenance personnel.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device listing
tenants, and no other directory shall be permitted unless previously
consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or Building
without Landlord's prior written consent and Landlord shall have the right
to retain at all times and to use keys to all locks within and into the
Premises. A reasonable number of keys to the locks on the entry doors in
the Premises shall be furnished by Landlord to Tenant at Tenant's cost, and
Tenant shall not make any duplicate keys. All keys shall be returned to
Landlord at the expiration or early termination of this Lease.
6. All contractors, contractor's representatives and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval and shall be required to comply with Landlord's standard rules,
regulations, policies and procedures, which may be revised from time to
time.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the use
of elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours designated by Landlord. Tenant shall obtain Landlord's
prior approval by providing a detailed listing of the activity. If
approved by Landlord, the activity shall be under the supervision of
Landlord and performed in the manner required by Landlord. Tenant shall
assume all risk for damage to articles moved and injury to any persons
resulting from the activity. If equipment, property, or personnel of
Landlord or of any other party is damaged or injured as a result of or in
connection with the activity, Tenant shall be solely liable for any
resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location of
heavy equipment or articles in and about the Premises. Damage to the
Building by the installation, maintenance, operation, existence or removal
of Tenant's Property shall be repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute, or cause to be distributed, in any portion of the
Building, handbills, promotional materials or other advertising; or (3)
conduct or permit other activities in the Building that might, in
Landlord's sole opinion, constitute a nuisance.
B-1
<PAGE>
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be used
or kept by Tenant in the Premises, Building or about the Property. Tenant
shall not, without Landlord's prior written consent, use, store, install,
spill, remove, release or dispose of, within or about the Premises or any
other portion of the Property, any asbestos-containing materials or any
solid, liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any
other applicable environmental Law which may now or later be in effect.
Tenant shall comply with all Laws pertaining to and governing the use of
these materials by Tenant, and shall remain solely liable for the costs of
abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or future
value of the Premises or the Building. Tenant shall not use, or permit any
part of the Premises to be used, for lodging, sleeping or for any illegal
purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor disruption
or dispute, or interfere with Landlord's or any other tenant's or
occupant's business or with the rights and privileges of any person
lawfully in the Building ("Labor Disruption"). Tenant shall take the
actions necessary to resolve the Labor Disruption, and shall have pickets
removed and, at the request of Landlord, immediately terminate any work in
the Premises that gave rise to the Labor Disruption, until Landlord gives
its written consent for the work to resume. Tenant shall have no claim for
damages against Landlord or any of the Landlord Related Parties, nor shall
the Commencement Date of the Term be extended as a result of the above
actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the use
of electronic or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines and other telecommunication facilities available to service
the Building.
16. Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices and machines for
sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant's employees, and then only if the
operation does not violate the lease of any other tenant in the Building.
17. Bicycles and other vehicles are not permitted inside the Building or on the
walkways outside the Building, except in areas designated by Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents, employees, contractors, guests and invitees
shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole opinion
may impair the reputation of the Building or its desirability. Upon
written notice from Landlord, Tenant shall refrain from and discontinue
such publicity immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building or the
Property.
21. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking in the Common Areas, unless the Common Areas
have been declared a designated smoking area by Landlord, nor shall the
above parties allow smoke from the Premises to emanate into the Common
Areas or any other part of the Building. Landlord shall have the right to
designate the Building (including the Premises) as a non-smoking building.
B-2
<PAGE>
22. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the
sun.
23. Deliveries to and from the Premises shall be made only at the times, in the
areas and through the entrances and exits designated by Landlord. Tenant
shall not make deliveries to or from the Premises in a manner that might
interfere with the use by any other tenant of its premises or of the Common
Areas, any pedestrian use, or any use which is inconsistent with good
business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after 5:30
p.m., and cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
B-3
<PAGE>
EXHIBIT C
COMMENCEMENT LETTER
-------------------
(EXAMPLE)
Date ________________________
Tenant ________________________
Address ________________________
________________________
________________________
Re: Commencement Letter with respect to that certain Lease dated as of
_________, 2000, by and between EOP-150 CALIFORNIA STREET, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY, as Landlord, and C-BRIDGE INTERNET
SOLUTIONS, A DELAWARE CORPORATION, as Tenant, for 9,829 rentable square
feet on the 10th floor of the Building located at 150 California Street,
San Francisco, California.
Dear __________________:
In accordance with the terms and conditions of the above referenced Lease,
Tenant accepts possession of the Premises and agrees:
1. The Commencement Date of the Lease is ________________________;
2. The Termination Date of the Lease is ____________________________.
Please acknowledge your acceptance of possession and agreement to the terms
set forth above by signing all 3 counterparts of this Commencement Letter in the
space provided and returning 2 fully executed counterparts to my attention.
Sincerely,
___________________________________
Property Manager
Agreed and Accepted:
Tenant: ______________________
By: ______________________
Name: ______________________
Title: ______________________
Date: ______________________
C-1
<PAGE>
EXHIBIT D
WORK LETTER
-----------
This Exhibit is attached to and made a part of the Lease dated as of March 15,
2000, by and between EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and C-BRIDGE INTERNET SOLUTIONS, A DELAWARE
CORPORATION ("Tenant") for space in the Building located at 150 California
Street, San Francisco, California.
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Premises for Tenant's occupancy.
All improvements described in this Work Letter to be constructed in and
upon the Premises by Landlord in accordance with the Plans (as hereinafter
defined) are hereinafter referred to as the "Landlord Work." It is agreed
that construction of the Landlord Work will be completed at Tenant's sole
cost and expense, subject to the Allowance (as defined below). Landlord
shall enter into a direct contract for the Landlord Work with a general
contractor selected by Landlord (the "General Contractor"). The General
Contractor will solicit bids from no less than 3 separate pre-qualified
subcontractors mutually agreed upon by Landlord and Tenant as to each major
trade involved with the Landlord Work. Tenant agrees that Landlord shall
utilize Landlord's building-approved engineering firm and contractors for
all fire/life safety, electrical, plumbing, HVAC and mechanical work to be
performed in connection with the construction of the Landlord Work.
Landlord's Work shall not include base building work (the "Base Building
Work") which shall be performed by Landlord at Landlord's sole cost and
expense prior to or concurrent with Landlord's construction of Landlord's
Work in the Premises substantially in accordance with the construction
documents prepared by Hellmuth Obata & Kassabaum, Inc., and designated as
M&L Project #6502.00 (the "Final Plans"), a partial summary of which is set
forth on EXHIBIT D-1 to the Lease. In the event of a conflict between the
Final Plans and the provisions of EXHIBIT D-1, the Final Plans will
control. In no event shall the cost of the Base Building Work be applied
against or deducted from the Allowance (as hereinafter defined). Landlord
shall have the right to change the plans and specifications for the Base
Building Work from time to time, provided that Landlord shall not
materially reduce the overall quality of the Base Building Work. Landlord
will comply with all applicable Laws in connection with the construction of
the Base Building Work.
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of the final architectural, electrical and
mechanical construction drawings, plans and specifications (called "Plans")
necessary to construct the Landlord Work, which plans shall be subject to
approval by Landlord and Landlord's architect and engineers and shall
comply with their requirements to avoid aesthetic or other conflicts with
the design and function of the balance of the Building. 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. If requested by Tenant, Landlord's
architect will prepare the Plans necessary for such construction at
Tenant's cost. Whether or not the layout and Plans are prepared with the
help (in whole or in part) of Landlord's architect, Tenant agrees to remain
solely responsible for the timely preparation and submission of the Plans
and for all elements of the design of such Plans and for all costs related
thereto. Tenant has assured itself by direct communication with the
architect and engineers (Landlord's or its own, as the case may be) that
the final approved Plans can be delivered to Landlord on or before March
15, 2000 (the "Plans Due Date"), provided that Tenant promptly furnishes
complete information concerning its requirements to said architect and
engineers as and when requested by them. Tenant covenants and agrees to
cause said final, approved Plans to be delivered to Landlord on or before
said Plans Due Date and to devote such time as may be necessary in
consultation with said architect and engineers to enable them to complete
and submit the Plans within the required time limit. Time is of the
essence in respect of preparation and submission of Plans by Tenant. In the
event the Plans are not fully completed and approved by the Plans Due Date,
Tenant shall be responsible for 1 day of Tenant Delay (as defined in the
Lease) for each day during the period beginning on the day following the
Plans Due Date and ending on the date completed Plans are approved. (The
word "architect" as used in this EXHIBIT D shall include an interior
designer or space planner.)
D-1
<PAGE>
3. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, Landlord, prior to commencing any construction
of Landlord Work, shall submit to Tenant a written estimate setting forth
the anticipated cost of the Landlord Work, including but not limited to
labor and materials, contractor's fees and permit fees. Within 3 Business
Days thereafter, Tenant shall either notify Landlord in writing of its
approval of the cost estimate, or specify its objections thereto and any
desired changes to the proposed Landlord Work. In the event Tenant
notifies Landlord of such objections and desired changes, Tenant shall work
with Landlord to reach a mutually acceptable alternative cost estimate.
4. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, if any (such amounts exceeding the Allowance
being herein referred to as the "Excess Costs"), Tenant shall pay to
Landlord such Excess Costs, plus any applicable state sales or use tax
thereon, upon demand. The statements of costs submitted to Landlord by
Landlord's contractors shall be conclusive for purposes of determining the
actual cost of the items described therein. The amounts payable by Tenant
hereunder constitute Rent payable pursuant to the Lease, and the failure to
timely pay same constitutes an event of default under the Lease.
5. If Tenant shall request any change, addition or alteration in any of the
Plans after approval by Landlord, Landlord shall have such revisions to the
drawings prepared, and Tenant shall reimburse Landlord for the cost
thereof, plus any applicable state sales or use tax thereon, upon demand.
Promptly upon completion of the revisions, Landlord shall notify Tenant in
writing of the increased cost which will be chargeable to Tenant by reason
of such change, addition or deletion. Tenant, within 1 Business Day, shall
notify Landlord in writing whether it desires to proceed with such change,
addition or deletion. In the absence of such written authorization,
Landlord shall have the option to continue work on the Premises
disregarding the requested change, addition or alteration, or Landlord may
elect to discontinue work on the Premises until it receives notice of
Tenant's decision, in which event Tenant shall be responsible for any Delay
in completion of the Premises resulting therefrom. In the event such
revisions result in a higher estimate of the cost of construction and/or
higher actual construction costs which exceed the Allowance, such increased
estimate or costs shall be deemed Excess Costs pursuant to Paragraph 4
hereof and Tenant shall pay such Excess Costs, plus any applicable state
sales or use tax thereon, upon demand.
6. Following approval of the Plans and the payment by Tenant of the required
portion of the Excess Costs, if any, Landlord shall cause the Landlord Work
to be constructed substantially in accordance with the approved Plans.
Landlord shall notify Tenant of substantial completion of the Landlord
Work.
7. Landlord, provided Tenant is not in default, agrees to provide Tenant with
an allowance (the "Allowance") in an amount not to exceed $35.00 per
rentable square foot of the Premises to be applied toward the cost of the
Landlord Work in the Premises. In the event the Allowance shall not be
sufficient to complete the Landlord Work, Tenant shall pay the Excess
Costs, plus any applicable state sales or use tax thereon, as prescribed in
Paragraph 4 above. In the event the Allowance exceeds the cost of Landlord
Work, any remaining Allowance not utilized in connection with the Landlord
Work by December 31, 2000 shall accrue to the sole benefit of Landlord, it
being agreed that Tenant shall not be entitled to any credit, offset,
abatement or payment with respect thereto. Landlord shall be entitled to
deduct from the Allowance a construction management fee for Landlord's
oversight of the Landlord Work in an amount equal to $1.25 per rentable
square foot of the Premises; provided that in the event Landlord reasonably
determines that the Landlord Work to be performed exceeds typical building
standard tenant improvements, Landlord shall have the right to increase the
amount of the construction management fee to be deducted from the Allowance
to an amount which Landlord reasonably determines will compensate Landlord
for the additional oversight work to be performed.
8. This EXHIBIT D 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 the 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
the Lease or otherwise, unless expressly so provided in the Lease or any
amendment or supplement to the Lease.
D-2
<PAGE>
Landlord and Tenant have executed this exhibit as of the day and year first
above written.
LANDLORD:
EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership,
a Delaware limited partnership,
its sole member
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general partner
By: /s/ Robert E. Dezzutti
----------------------------
Name: Robert E. Dezzutti
----------------------------
Title: Vice President
----------------------------
TENANT:
C-BRIDGE INTERNET SOLUTIONS,
A DELAWARE CORPORATION
By: /s/ Rick Wester
----------------------------------
Name: Rick Wester
----------------------------------
Title: Vice President
---------------------------------
By: /s/ Clifford B. Thompson
----------------------------------
Name: Clifford B. Thompson
----------------------------------
Title: Vice President and General Counsel
----------------------------------
D-3
<PAGE>
EXHIBIT D-1
SUMMARY OF FINAL PLANS
----------------------
This Exhibit is attached to and made a part of the Lease dated as of March
15, 2000, by and between EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and C-BRIDGE INTERNET SOLUTIONS, A DELAWARE
CORPORATION ("Tenant") for space in the Building located at 150 California
Street, San Francisco, California.
The Base Building Work includes the following improvements:
1. HVAC SYSTEM.
a. The Building will have 2 central fan systems which shall deliver
cooling and ventilation air to all office floors. Floors 2 through 13
will be served from a fan system located at Level 5, while Floors 14
through 23 will be served from a fan system located at the roof
penthouse.
The central fan systems will be sized for the cooling load imposed by
the building envelope, lights, people and miscellaneous receptacle
loads (PC's, printers, etc.) of 2.5 watts per square foot of tenant
floor area. The central fan systems will have an "air economizer
cycle" which uses outside air for cooling.
b. Cooling will be provided by 2 chillers and 2 cooling towers located at
the roof penthouse.
c. Heating will be provided by 2 boilers located at the roof penthouse,
and by heating water coils at tenant provided VAV boxes serving the
perimeter areas of each tenant floor.
d. Each tenant floor will receive air from the central fan system during
Normal Business Hours.
e. Tenant may install a water-cooled air conditioning unit and
circulating pump for supplemental air conditioning on a 24-hour basis.
Connection to be made by Tenant to a set of condenser water pipe
risers, which will have valved stub-outs on each tenant floor. Tenant
will be charged for running the central cooling towers, as necessary.
This tenant condenser water system will be sized for 2 watts per
square foot of tenant floor area, or 9 tons per floor, over and above
the cooling provided by the central fan systems.
f. Tenant's mechanical engineer is required to verify that total loads,
including building envelope loads, can be met with the existing system
capacities. Tenant loads in excess of the available capacity will
require supplemental air conditioning that is to be supplied by the
Tenant.
2. ELECTRICAL SYSTEMS.
a. The Building will be served by 480Y/277 volt. The electric service
will consist of a 4000A bus to serve the building and office tenant
loads, a fire pump service and a 400A service to serve the retail
tenant loads.
b. A bus duct riser at 480Y/227 volt will have a capacity of 7.0 volt-
amperes per net rentable square foot for office tenant loads. Local
480V-208Y/120V, 3 phase, 4 wire will have a capacity of 2.5 volt-
amperes per net rentable square foot to serve tenant equipment and
receptacle loads.
c. A 480Y/277V, 3 phase, 4 wire panelboard will be provided at each floor
for lighting loads. A 208Y/120V, 3 phase, 4 wire panelboard will be
provided at each floor for equipment and receptacle loads.
d. Tenant lighting controls to be provided by Tenant.
e. A telephone/data closet will be provided at each floor for tenant/data
service.
D-4
<PAGE>
3. FIRE PROTECTION IN PREMISES.
a. All exposed decks, columns and beams will have fireproofing in
accordance with City of San Francisco building codes.
b. Automatic sprinkler system piping will be connected to the existing
system riser, including flow and damper switches and riser drains.
Smoke detectors, main loop and minimum distribution piping will
provide required system density for shell space per City of San
Francisco building codes. Sprinkler system piping relocation and
sprinkler head installation will be the responsibility of Tenant.
4. CONDITION OF PREMISES.
Drywall (taped, sanded and finish-ready) at all core locations in the
Premises, columns exposed, ceiling exposed to structure, concrete slab
exposed, exit signs per shell code, HVAC main duct trunk run stubbed out to
a predetermined location, upright fire sprinklers, fire extinguisher
cabinets, window sills painted.
5. ELEVATOR LOBBY ON PREMISES FLOORS.
Drywall (taped, sanded and finish-ready) in elevator lobby area, ceiling
exposed to structure, concrete slab exposed, exit signs per shell code,
pendent fire sprinklers.
6. TOILET ROOMS IN PREMISES.
Granite counters with undermount sinks, tile floor and base, full height
tile at wet walls, wall covering at other walls, metal toilet partitions,
wood door at entry, down lights/cove light at wet wall/sconce light at
mirror, HVAC diffusers with VAV boxes, toilet room accessories, pendent
fire sprinklers. Interior lights to be tied to a motion sensor.
7. ELECTRICAL/TELECOM ROOMS ON PREMISES FLOORS.
Drywall (taped, sanded and finish-ready) in electrical/telecom area,
ceiling exposed to structure, concrete slab exposed, fluorescent utility
lighting, HVAC per shell code, pendent fire sprinklers. One (1) lighting
panel and one (1) power panel per floor.
D-5
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of
the day and year first above written.
LANDLORD:
EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership,
a Delaware limited partnership,
its sole member
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general partner
By: /s/ Robert E. Dezzutti
----------------------------
Name: Robert E. Dezzutti
----------------------------
Title: Vice President
----------------------------
TENANT:
C-BRIDGE INTERNET SOLUTIONS,
A DELAWARE CORPORATION
By: /s/ Rick Wester
----------------------------------
Name: Rick Wester
----------------------------------
Title: Vice President
---------------------------------
By: /s/ Clifford B. Thompson
----------------------------------
Name: Clifford B. Thompson
----------------------------------
Title: Vice President and General Counsel
----------------------------------
D-6
<PAGE>
EXHIBIT E
FORM OF LETTER OF CREDIT
------------------------
____________________________________
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. ________________________
Issuance Date:______________
Expiration Date:____________
Applicant:__________________
Beneficiary
- -----------
EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor for
the account of the above referenced Applicant in the amount of Nine Hundred
Thirty Three Thousand Seven Hundred Fifty Five and 00/100 U.S. Dollars
($933,755.00) available for payment at sight by your draft drawn on us when
accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ______________________ U.S. Dollars
($____________) under your Irrevocable Standby Letter of Credit No.
____________________ represents funds due and owing to us as a result of
the Applicant's failure to comply with one or more of the terms of that
certain lease by and between ______________________, as landlord, and
_____________, as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it will be
considered automatically renewed for a one year period upon the expiration date
set forth above and upon each anniversary of such date, unless at least sixty
(60) days prior to such expiration date or applicable anniversary thereof, we
notify you in writing by certified mail, return receipt requested, that we elect
not to so renew this Irrevocable Standby Letter of Credit. A copy of any such
notice shall also be sent to: Equity Office Properties Trust, 2 North Riverside
Plaza, Suite 2200, Chicago, IL 60606, Attention: Senior Vice President-
Treasurer. In addition, provided that you have not provided us with written
notice of Applicant's default under the above referenced lease prior to the
effective date of any reduction, the amount of this Irrevocable Standby Letter
of Credit shall automatically reduce in accordance with the following schedule:
EFFECTIVE DATE OF REDUCTION NEW REDUCED AMOUNT OF LETTER OF CREDIT
1ST ANNIVERSARY OF COMMENCEMENT DATE $747,004.00
2ND ANNIVERSARY OF COMMENCEMENT DATE $560,253.00
3RD ANNIVERSARY OF COMMENCEMENT DATE $373,502.00
4TH ANNIVERSARY OF COMMENCEMENT DATE $186,751.00
E-1
<PAGE>
In addition to the foregoing, we understand and agree that you shall be entitled
to draw upon this Irrevocable Standby Letter of Credit in accordance with 1. and
2. above in the event that we elect not to renew this Irrevocable Standby Letter
of Credit and, in addition, you provide us with a dated statement proportedly
signed by one of Beneficiary's officers stating that the Applicant has failed to
provide you with an acceptable substitute irrevocable standby letter of credit
in accordance with the terms of the above referenced lease. We further
acknowledge and agree that: (a) upon receipt of the documentation required
herein, we will honor your draws against this Irrevocable Standby Letter of
Credit without inquiry into the accuracy of Beneficiary's signed statement and
regardless of whether Applicant disputes the content of such statement; (b) this
Irrevocable Standby Letter of Credit shall permit partial draws and, in the
event you elect to draw upon less than the full stated amount hereof, the stated
amount of this Irrevocable Standby Letter of Credit shall be automatically
reduced by the amount of such partial draw; and (c) you shall be entitled to
assign your interest in this Irrevocable Standby Letter of Credit from time to
time without our approval and without charge. In the event of an assignment, we
reserve the right to require reasonable evidence of such assignment as a
condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 revision) ICC Publication No. 500.
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of
Credit must be addressed to our office located at
______________________________________________ to the attention of
__________________________________.
Very truly yours,
______________________
[name]
----------------------
[title]
----------------------
E-2
<PAGE>
OFFICE
LEASE
Between
BRE/SOUTHFIELD L.L.C.,
a Delaware limited liability company,
and
C-BRIDGE INTERNET SOLUTIONS, INC.,
a Delaware corporation
<PAGE>
TABLE OF CONTENTS
-----------------
Page No.
--------
ARTICLE 1 Premises and Term.................................. 1
ARTICLE 2 Base Rent.......................................... 1
ARTICLE 3 Additional Rent.................................... 2
ARTICLE 4 Commencement of Term............................... 3
ARTICLE 5 Condition of Premises.............................. 4
ARTICLE 6 Use and Rules...................................... 4
ARTICLE 7 Services and Utilities............................. 4
ARTICLE 8 Alterations and Liens.............................. 5
ARTICLE 9 Repairs............................................ 6
ARTICLE 10 Casualty Damage.................................... 7
ARTICLE 11 Insurance, Subrogation, and Waiver of Claims....... 7
ARTICLE 12 Condemnation....................................... 8
ARTICLE 13 Return of Possession............................... 8
ARTICLE 14 Holding Over....................................... 9
ARTICLE 15 No Waiver.......................................... 9
ARTICLE 16 Attorneys' Fees and Jury Trial..................... 10
ARTICLE 17 Personal Property Taxes, Rent Taxes and Other Taxes 10
ARTICLE 18 Subordination, Attornment and Mortgagee Protection. 10
ARTICLE 19 Estoppel Certificate............................... 11
ARTICLE 20 Assignment and Subletting.......................... 11
ARTICLE 21 Rights Reserved By Landlord........................ 13
ARTICLE 22 Landlord's Remedies................................ 14
ARTICLE 23 Landlord's Right to Cure........................... 17
ARTICLE 24 Captions, Definitions and Severability............. 17
ii
<PAGE>
ARTICLE 25 Conveyance by Landlord and Liability............... 21
ARTICLE 26 Indemnification.................................... 21
ARTICLE 27 Safety and Security Devices, Services and Programs. 22
ARTICLE 28 Communications and Computer Lines.................. 22
ARTICLE 29 Hazardous Materials................................ 23
ARTICLE 30 Miscellaneous...................................... 24
ARTICLE 31 Offer.............................................. 25
ARTICLE 32 Notices............................................ 25
ARTICLE 33 Real Estate Brokers................................ 25
ARTICLE 34 Security Deposit and Letter of Credit.............. 26
ARTICLE 35 Option to Extend................................... 26
ARTICLE 36 Exculpation........................................ 27
ARTICLE 37 Entire Agreement................................... 27
RIDER ONE RULES.............................................. R-1
EXHIBIT A (Floor plan(s) showing Premises cross-hatched)..... A-1
EXHIBIT B WORKLETTER AGREEMENT............................... B-1
EXHIBIT C FORM OF LETTER OF CREDIT........................... C-1
iii
<PAGE>
TOWN CENTER OFFICE LEASE
3000 TOWN CENTER SUITE 76
THIS LEASE made as of the ________day of ________________________, 2000,
between BRE/SOUTHFIELD L.L.C., a Delaware limited liability company
("Landlord"), and C-BRIDGE INTERNET SOLUTIONS, INC., a Delaware corporation,
whose address is 219 Vassar Street, Cambridge, MA 02139 ("Tenant").
WITNESSETH:
ARTICLE 1
Premises and Term
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
that certain space known as Suite 76 (the "Premises") in the building located
at 3000 Town Center, Southfield, Michigan 48075 (the "Building"), subject to the
provisions herein contained. The Building is one of a group of five buildings
commonly known as 1000 Town Center, 2000 Town Center, 3000 Town Center
(including Low Rise), 4000 Town Center (including Low Rise) and 4400 Town Center
located in an office-retail building complex (the "Complex" as further described
in Article 24) commonly known as Town Center. The term ("Term") of this Lease
shall commence on the 1st day of May, 2000 ("Commencement Date"), and shall
continue until April 30, 2005 ("Expiration Date"), unless sooner terminated as
provided herein. The Commencement Date shall be subject to adjustment as
provided in Article 4. Landlord and Tenant agree that for purposes of this
Lease the rentable area of the Premises is approximately Eight Thousand Nine
Hundred and Forty Six (8,946) square feet and the rentable area of the Complex
is One Million Nine Hundred Thousand Four Hundred Forty Six (1,983,446).
ARTICLE 2
Base Rent
Tenant shall pay Landlord Base Rent of:
*Annual Monthly
Period Amount Amount
- ------------ ----------- ----------
Lease Year 1 $131,953.56 $10,996.13
Lease Year 2 $136,426.56 $11,368.88
Lease Year 3 $143,136.00 $11,928.00
Lease Year 4 $149,845.56 $12,487.13
Lease Year 5 $156,555.00 $13,046.25
* Based upon 8,946 square feet
in advance on or before the first day of each calendar month during the Term,
except that Base Rent for the first full calendar month for which Base Rent
shall be due, shall be paid when Tenant executes this Lease. If the Term
commences on a day other than the first day of a calendar month, or ends on a
day other than the last day of a calendar month, then the Base Rent for such
month shall be prorated on the basis of 1/30th of the monthly Base Rent for each
ay of such month. If Tenant occupies the Premises prior to the Commencement
Date, Tenant agrees that all of the terms and conditions of this Lease shall be
applicable thereto except that Tenant shall not be obligated to pay Basic Rent
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or Additional Rent. Rent shall be paid without any prior demand or notice
therefor, and shall in all events be paid without any deduction, recoupment,
set-off or counterclaim, and without relief from any valuation or appraisement
laws. Landlord may apply payments received from Tenant to any obligations of
Tenant then accrued, without regard to such obligations as may be designated by
Tenant.
ARTICLE 3
Additional Rent
(A) TAXES. Tenant shall pay Landlord an amount equal to Tenant's Prorata
Share of Taxes. The terms "Taxes" and "Tenant's Prorata Share" shall have the
meanings specified therefor in Article 24.
(B) OPERATING EXPENSES. Tenant shall pay Landlord an amount equal to
Tenant's Prorata Share of Operating Expenses. The terms "Operating Expenses"
and "Tenant's Prorata Share" shall have the meanings specified therefor in
Article 24.
(C) MANNER OF PAYMENT. Taxes and Operating Expenses shall be paid in the
following manner:
(i) Landlord may reasonably estimate in advance the amounts Tenant shall owe
for Taxes and Operating Expenses for any full or partial calendar year of the
Term. In such event, Tenant shall pay such estimated amounts, on a monthly
basis in installments equal to one-twelfth of the annual estimate, on or before
the first day of each calendar month, together with Tenant's payment of Base
Rent. Such estimate may be reasonably adjusted from time to time by Landlord.
(ii) Within one hundred and twenty (120) days after the end of each calendar
year, or as soon thereafter as practicable, Landlord shall provide a statement
(the "Statement") to Tenant showing: (a) the amount of actual Taxes and
Operating Expenses for such calendar year, with a listing of amounts for major
categories of Operating Expenses, (b) any amount paid by Tenant towards Taxes
and Operating Expenses during such calendar year on an estimated basis, and (c)
any revised estimate of Tenant's obligations for Taxes and Operating Expenses
for the current calendar year.
(iii) If the Statement shows that Tenant's estimated payments were less than
Tenant's actual obligations for Taxes and Operating Expenses for such year,
Tenant shall pay the difference. If the Statement shows an increase in Tenant's
estimated payments for the current calendar year, Tenant shall pay the
difference between the new and former estimates, for the period from January 1
of the current calendar year through the month in which the Statement is sent.
Tenant shall make such payments within thirty (30) days after Landlord sends the
Statement.
(iv) If the Statement shows that Tenant's estimated payments exceeded
Tenant's actual obligations for Taxes and Operating Expenses, Tenant shall
receive a credit for the difference against payments of Rent next due. If the
Term shall have expired and no further Rent shall be due, Tenant shall receive a
refund of such difference, within thirty (30) days after Landlord sends the
Statement.
(v) So long as Tenant's obligations hereunder are not materially adversely
affected thereby, Landlord reserves the right to reasonably change, from time to
time, the manner or timing of the foregoing payments. In lieu of providing one
Statement covering Taxes and Operating Expenses, Landlord may provide separate
statements, at the same or different times. No delay by Landlord in providing
the Statement (or separate statements) shall be deemed a default by Landlord or
a waiver of Landlord's right to require payment of Tenant's obligations for
actual or estimated Taxes or Operating Expenses.
(D) PRORATION. If the Term commences other than on January 1, or ends other
than on December 31, Tenant's obligations to pay estimated and actual amounts
towards Taxes and Operating Expenses for such first or final calendar years
shall be prorated to reflect the portion of such years included in the Term.
Such proration shall be made by multiplying the total estimated or actual (as
the case may be) Taxes and Operating Expenses, for such calendar years, by a
fraction, the numerator of which shall be the number of days of the Term during
such calendar year, and the denominator of which shall be three hundred and
sixty-five (365).
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(E) LANDLORD'S RECORDS. Landlord shall maintain records respecting Taxes
and Operating Expenses and determine the same in accordance with sound
accounting and management practices, consistently applied. This Lease
contemplates the computation of Taxes and Operating Expenses on a full accrual
basis. Landlord reserves the right to change to a cash system of accounting
and, in such event, Landlord shall make reasonable and appropriate accrual
adjustments to ensure that each calendar year includes substantially the same
recurring items. Tenant or its representative shall have the right to examine
such records upon reasonable prior notice specifying such records Tenant desires
to examine, during normal business hours at the place or places where such
records are normally kept by sending such notice no later than forty-five (45)
days following the furnishing of the Statement. Tenant may take exception to
matters included in Taxes or Operating Expenses, or Landlord's computation of
Tenant's Prorata Share of either, by sending notice specifying such exception
and the reasons therefor to Landlord no later than thirty (30) days after
Landlord makes such records available for examination. Such Statement shall be
considered final, except as to matters to which exception is taken after
examination of Landlord's records in the foregoing manner and within the
foregoing times. Tenant acknowledges that Landlord's ability to budget and
incur expenses depends on the finality of such Statement, and accordingly agrees
that time is of the essence of this Paragraph. If Tenant takes exception to any
matter contained in the Statement as provided herein, Landlord shall refer the
matter to an independent certified public accountant, whose certification as to
the proper amount shall be final and conclusive as between Landlord and Tenant.
Tenant shall promptly pay the cost of such certification unless such
certification determines that Tenant was overbilled by more than five percent
(5%). Pending resolution of any such exceptions in the foregoing manner, Tenant
shall continue paying Tenant's Prorata Share of Taxes and Operating Expenses in
the amounts determined by Landlord, subject to adjustment after any such
exceptions are so resolved.
(F) RENT AND OTHER CHARGES. Base Rent, Taxes, Operating Expenses and any
other amounts which Tenant is or becomes obligated to pay Landlord under this
Lease or other agreement entered in connection herewith, are sometimes herein
referred to collectively as "Rent," and all remedies applicable to the non-
payment of Rent shall be applicable thereto. Rent shall be paid at any office
maintained by Landlord or its agent at the Complex or at such other place as
Landlord may designate.
ARTICLE 4
Commencement of Term
The Commencement Date set forth in Article 1 shall be delayed and Rent shall
be abated to the extent that Landlord fails: (i) to substantially complete any
improvements to the Premises required to be performed by Landlord under that
certain workletter attached hereto as Exhibit B ("Workletter"), or (ii) to
deliver possession of the Premises for any other reason, including but not
limited to holding over by prior occupants, except to the extent that Tenant,
its contractors, agents or employees in any way contribute to either such
failures. If Landlord so fails for a ninety (90) day initial grace period, or
such additional time as may be necessary due to fire or other casualty, strikes,
lock-outs or other labor troubles, shortages of equipment or materials,
governmental requirements, power shortages or outages, acts or omissions of
Tenant or other Persons, or other causes beyond Landlord's reasonable control,
Tenant shall have the right to terminate this Lease by written notice to
Landlord any time thereafter up until Landlord substantially completes any such
improvements and delivers the Premises to Tenant. Any such delay in the
Commencement Date shall not subject Landlord to liability for loss or damage
resulting therefrom, and Tenant's sole recourse with respect thereto shall be
the abatement of Rent and right to terminate this Lease described above. Upon
any such termination, Landlord and Tenant shall be entirely relieved of their
obligations hereunder, and any Security Deposit and Rent payments shall be
returned to Tenant. If the Commencement Date is delayed, the Expiration Date
shall not be similarly extended, unless Landlord shall so elect (in which case,
the parties shall confirm the same in writing). During any period that Tenant
shall be permitted to enter the Premises prior to the Commencement Date other
than to occupy the same (e.g., to perform alterations or improvements), Tenant
shall comply with all terms and provisions of this Lease, except those
provisions requiring the payment of Rent. If Tenant shall be permitted to enter
the Premises prior to the Commencement Date for the purpose of occupying the
same, Rent shall not commence until the Commencement Date. Landlord shall
permit early entry, provided the Premises are legally available and Landlord has
completed any work required under this Lease or under the Workletter.
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ARTICLE 5
Condition of Premises
Tenant has inspected the Premises, Building, Systems and Equipment (as
defined in Article 24), or has had an opportunity to do so, and agrees to accept
the same "as is" without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations, repairs or
improvements and no representations respecting the condition of the Premises,
the Building or the Complex have been made to Tenant by or on behalf of
Landlord, except as expressly provided herein or in any separate agreement that
may be signed by the parties.
ARTICLE 6
Use and Rules
Tenant shall use the Premises for offices (wherein it shall conduct sales,
administrative and training functions) and for no other purpose whatsoever, in
compliance with all applicable Laws and all covenants, conditions and
restrictions of record applicable to Tenant's use or occupancy of the Premises,
and without disturbing or interfering with any other tenant or occupant of the
Building or the Complex. Tenant shall not use the Premises in any manner so as
to cause a cancellation of Landlord's insurance policies, or an increase in the
premiums thereunder. Tenant shall comply with, and shall cause its permitted
subtenants, permitted assignees, invitees, employees, contractors and agents to
comply with, all rules set forth in Rider One attached hereto (the "Rules").
Landlord shall have the right to reasonably amend such Rules and supplement the
same with other reasonable Rules (not expressly inconsistent with this Lease)
relating to the Building or the Complex, or the promotion of safety, care,
cleanliness or good order therein, and all such amendments or new Rules shall be
binding upon Tenant after five (5) days notice thereof to Tenant. All Rules
shall be applied on a non-discriminatory basis, but nothing herein shall be
construed to give Tenant or any other Person (as defined in Article 24) any
claim, demand or cause of action against Landlord arising out of the violation
of such Rules by any other tenant, occupant, or visitor of the Complex, or out
of the enforcement or waiver of the Rules by Landlord in any particular
instance.
ARTICLE 7
Services and Utilities
Landlord shall provide the following services and utilities (the cost of
which shall be included in Operating Expenses unless otherwise stated herein or
in any separate rider hereto):
(A) Electricity as is customarily required for the use of standard and
customary office lighting, electrical outlets, equipment and accessories
consistent with the level of service of other first-class office building
properties of the same age and in the geographic vicinity of the Building.
(B) Heat and air-conditioning to provide a temperature required, in
Landlord's reasonable opinion and in accordance with applicable Law, for
occupancy of the Premises under normal business operations, from 7:00 a.m. until
6:00 p.m. Monday through Friday and 8:00 a.m. until 2:00 p.m. on Saturday,
except on Holidays (as defined in Article 24). Landlord shall not be
responsible for inadequate air-conditioning or ventilation to the extent the
same occurs because Tenant uses any item of equipment consuming in excess of the
rated capacity of the existing electrical circuits serving the Premises without
providing adequate air-conditioning and ventilation therefor.
(C) Water for drinking, lavatory and toilet purposes at those points of
supply provided for nonexclusive general use of other tenants at the Building,
and, subject to Landlord's approval, water at Tenant's expense for any private
restrooms and office kitchen requested by Tenant.
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(D) Customary office cleaning and trash removal service Monday through
Friday or Sunday through Thursday in and about the Premises.
(E) Operatorless passenger elevator service (if the Building has such
equipment serving the Premises) and freight elevator service (if the Building
has such equipment serving the Premises and subject to scheduling and reasonable
charges by Landlord) in common with Landlord and other tenants and their
contractors, agents and visitors.
(F) Landlord shall seek to provide such extra utilities or services as
Tenant may from time to time request, if the same are reasonable and feasible
for Landlord to provide and do not involve modifications or additions to the
Building or Complex or to existing Systems and Equipment (as defined in Article
24), and if Landlord shall receive Tenant's request within a reasonable period
prior to the time such extra utilities or services are required. Landlord may
comply with written or oral requests by any officer or employee of Tenant,
unless Tenant shall notify Landlord of, or Landlord shall request, the names of
authorized individuals (up to three (3) for each floor on which the Premises are
located) and procedures for written requests. Tenant shall, for such extra
utilities or services, pay such charges as Landlord shall from time to time
reasonably establish. All charges for such extra utilities or services shall be
due at the same time as the installment of Base Rent with which the same are
billed, or if billed separately, shall be due within thirty (30) days after such
billing. If Tenant shall fail to make any such payment, Landlord may, without
notice to Tenant and in addition to all other remedies available to Landlord,
discontinue any additional services. No discontinuance of any such service
shall result in any liability of Landlord to Tenant or be considered as an
eviction or a disturbance of Tenant's use of the Premises.
Landlord may install and operate meters or any other reasonable system for
monitoring or estimating any services or utilities used by Tenant in excess of
those required to be provided by Landlord under this Article (including a system
for Landlord's engineer to reasonably estimate any such excess usage). If such
system indicates such excess services or utilities, Tenant shall pay Landlord's
reasonable charges for installing and operating such system and any
supplementary air-conditioning, ventilation, heat, electrical or other systems
or equipment (or adjustments or modifications to the existing Systems and
Equipment), and Landlord's reasonable charges for such amount of excess services
or utilities used by Tenant.
Landlord may impose a reasonable charge for any utilities and services,
including, without limitation, air conditioning, electricity, and water,
provided by Landlord by reason of: (i) any use of the Premises at any time
other than the hours set forth above; (ii) any utilities or services beyond what
Landlord agrees herein to furnish; or (iii) special electrical, cooling and
ventilating needs created by Tenant's telephone equipment, computer, electronic
data processing equipment, copying equipment and other such equipment or uses.
Landlord, at its option, may require installation of metering devices at
Tenant's expense for the purpose of metering Tenant's utility consumption.
Landlord does not warrant that any services or utilities will be free from
shortages, failures, variations, or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, inability to obtain services,
fuel, steam, water or supplies, governmental requirements or requests, or other
causes beyond Landlord's reasonable control. None of the same shall be deemed
an eviction or disturbance of Tenant's use and possession of the Premises or any
part thereof, or render Landlord liable to Tenant for abatement of Rent, or
relieve Tenant from performance of Tenant's obligations under this Lease.
Landlord in no event shall be liable for damages by reason of loss of profits,
business interruption or other consequential damages.
ARTICLE 8
Alterations and Liens
Tenant shall make no additions, changes, alterations or improvements (the
"Tenant Work") to the Premises or the Systems and Equipment (as defined in
Article 24) pertaining to the Premises without the prior written consent of
Landlord. Landlord may impose reasonable requirements as a condition of such
consent including without limitation the submission of plans and specifications
for Landlord's prior written approval, obtaining necessary permits, posting
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bonds, obtaining insurance, prior approval of contractors, subcontractors and
suppliers, prior receipt of copies of all contracts and subcontracts, contractor
and subcontractor lien waivers, affidavits listing all contractors,
subcontractors and suppliers, use of union labor (if Landlord uses union labor),
affidavits from engineers acceptable to Landlord stating that the Tenant Work
will not adversely affect the Systems and Equipment or the structure of the
Building, and requirements as to the manner and times in which such Tenant Work
shall be done. All Tenant Work shall be performed in a good and workmanlike
manner and all materials used shall be of a quality comparable to or better than
those in the Premises and Building and shall be in accordance with plans and
specifications approved by Landlord, and Landlord may require that all such
Tenant Work be performed under Landlord's supervision. In all cases, Tenant
shall pay Landlord a reasonable fee to cover Landlord's overhead in reviewing
Tenant's plans and specifications and performing any supervision of the Tenant
Work. If Landlord consents or supervises, the same shall not be deemed a
warranty as to the adequacy of the design, workmanship or quality of materials,
and Landlord hereby expressly disclaims any responsibility or liability for the
same. Landlord shall under no circumstances have any obligation to repair,
maintain or replace any portion of the Tenant Work.
Tenant shall keep the Complex and the Premises free from any mechanic's,
materialman's or similar liens or other such encumbrances in connection with any
Tenant Work on or respecting the Premises not performed by or at the request of
Landlord, and shall indemnify and hold Landlord harmless from and against any
claims, liabilities, judgments, or costs (including attorneys' fees) arising
out of the same or in connection therewith. Tenant shall give Landlord notice
at least twenty (20) days prior to the commencement of any Tenant Work on the
Premises (or such additional time as may be necessary under applicable Laws), to
afford Landlord the opportunity of posting and recording appropriate notices of
non-responsibility. Tenant shall remove any such lien or encumbrance by bond or
otherwise within thirty (30) days after written notice by Landlord, and if
Tenant shall fail to do so, Landlord may pay the amount necessary to remove such
lien or encumbrance, without being responsible for investigating the validity
thereof. The amount so paid shall be deemed additional Rent under this Lease
payable upon demand, without limitation as to other remedies available to
Landlord under this Lease. Nothing contained in this Lease shall authorize
Tenant to do any act (other than the Tenant Work) which shall subject Landlord's
title to the Complex or the Premises to any liens or encumbrances whether
claimed by operation of law or express or implied contract. Any claim to a lien
or encumbrance upon the Complex, the Building or Premises arising in connection
with any Tenant Work on or respecting the Premises not performed by or at the
request of Landlord shall be null and void, or at Landlord's option shall attach
only against Tenant's interest in the Premises and shall in all respects be
subordinate to Landlord's title to the Complex, the Building and the Premises.
ARTICLE 9
Repairs
Except for customary cleaning and trash removal provided by Landlord under
Article 7, and damage covered under Article 10, Tenant shall keep the Premises
in good and sanitary condition, working order and repair (including without
limitation, carpet, wall-covering, doors, plumbing and other fixtures,
equipment, alterations and improvements whether installed by Landlord or
Tenant). In the event that any repairs, maintenance or replacements are
required, Tenant shall promptly arrange for the same either through Landlord for
such reasonable charges as Landlord may from time to time establish, or such
contractors as Landlord generally uses at the Complex or such other contractors
as Landlord shall first approve in writing, and in a first class, workmanlike
manner approved by Landlord in advance in writing. If Tenant does not promptly
make such arrangements, Landlord may, but need not, make such repairs,
maintenance and replacements, and the costs paid or incurred by Landlord
therefor shall be reimbursed by Tenant promptly after request by Landlord.
Except for the gross negligence or wilful misconduct of Landlord, Tenant shall
indemnify Landlord and pay for any repairs, maintenance and replacements to
areas of the Building outside the Premises, caused, in whole or in part, as a
result of moving any furniture, fixtures, or other property to or from the
Premises, or by Tenant or its employees, agents, contractors, or visitors
(notwithstanding anything to the contrary contained in this Lease). Except as
provided in the preceding sentence, or for damage covered under Article 10,
Landlord shall keep the Building structure and common areas of the Building and
the Systems and Equipment in good and sanitary condition, working order and
repair (the cost of which shall be included in Operating Expenses, as described
in Article 24, except as limited therein).
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ARTICLE 10
Casualty Damage
If the Premises or any common areas of the Building providing access thereto
shall be damaged by fire or other casualty, Landlord shall use available
insurance proceeds to restore the same. Such restoration shall be to
substantially the condition prior to the casualty, except for modifications
required by zoning and building codes and other Laws or by any Holder (as
defined in Article 24), any other modifications to the common areas deemed
desirable by Landlord (provided access to the Premises is not materially
impaired), and except that Landlord shall not be required to repair or replace
any of Tenant's furniture, furnishings, fixtures or equipment, or any
alterations or improvements in excess of any work performed or paid for by
Landlord under any separate agreement signed by the parties in connection
herewith. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or its visitors, or injury to Tenant's business resulting in any way from
such damage or the repair thereof. However, Landlord shall allow Tenant a
proportionate abatement of Rent during the time and to the extent the Premises
are unfit for occupancy for the purposes permitted under this Lease and not
occupied by Tenant as a result thereof (unless Tenant or its employees or agents
caused the damage). Notwithstanding the foregoing to the contrary, Landlord may
elect to terminate this Lease by notifying Tenant in writing of such termination
within sixty (60) days after the date of damage (such termination notice to
include a termination date providing at least ninety (90) days for Tenant to
vacate the Premises), if the Building or the Complex shall be materially damaged
by Tenant or its employees or agents, or if the Building shall be damaged by
fire or other casualty or cause such that: (a) repairs to the Premises and
access thereto cannot reasonably be completed within one hundred and twenty days
(120) after the casualty without the payment of overtime or other premiums, (b)
more than twenty-five percent (25%) of the Premises is affected by the damage,
and fewer than twenty-four (24) months remain in the Term, or any material
damage occurs to the Premises during the last twelve (12) months of the Term,
(c) any Holder (as defined in Article 24) shall require that the insurance
proceeds or any portion thereof be used to retire the Mortgage debt (or shall
terminate the ground lease, as the case may be), or the damage is not fully
covered by Landlord's insurance policies, or (d) the cost of the repairs,
alterations, restoration or improvement work would exceed twenty-five percent
(25%) of the replacement value of the Building, or the nature of such work would
make termination of this Lease necessary or convenient. Tenant agrees that
Landlord's obligation to restore, and the abatement of Rent provided herein,
shall be Tenant's sole recourse in the event of such damage, and waives any
other rights Tenant may have under any applicable Law to terminate the Lease by
reason of damage to the Premises, the Building or the Complex. Tenant
acknowledges that this Article represents the entire agreement between the
parties respecting damage to the Premises, the Building or the Complex.
ARTICLE 11
Insurance, Subrogation, and Waiver of Claims
Tenant shall maintain during the Term comprehensive (or commercial) general
liability insurance, with limits of not less than $5,000,000 combined single
limit for personal injury, bodily injury or death, or property damage or
destruction (including loss of use thereof) for any one occurrence. Tenant
shall also maintain during the Term worker compensation insurance as required by
statute, and primary, noncontributory, "all-risk" property damage insurance
covering Tenant's personal property, business records, fixtures and equipment
for, damage or other loss caused by fire or other casualty or cause including,
but not limited to, vandalism and malicious mischief, theft, water damage of any
type, including sprinkler leakage, bursting or stoppage of pipes, explosion,
business interruption, and other insurable risks in amounts not less than the
full insurable replacement value of such property and full insurable value of
such other interests of Tenant (subject to reasonable deductible amounts).
Landlord shall, as part of Operating Expenses, maintain during the Term
comprehensive (or commercial) general liability insurance, with limits of not
less than $2,000,000 combined single limit for personal injury, bodily injury or
death, or property damage or destruction (including loss of use thereof) for any
one occurrence. Landlord shall also, as part of Operating Expenses, maintain
during the Term worker compensation insurance as required by statute, and
primary, non-contributory, extended coverage or "all-risk" property damage
insurance, in an amount equal to at least ninety percent (90%) of the full
insurable replacement value of the Building
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(exclusive of the costs of excavation, foundations and footings, and such risks
required to be covered by Tenant's insurance, and subject to reasonable
deductible amounts), or such other amount necessary to prevent Landlord from
being a co-insured, and such other coverage as Landlord shall deem appropriate
or that may be required by any Holder (as defined in Article 24).
Tenant shall provide Landlord with certificates evidencing such coverage
(and, with respect to liability coverage, showing Landlord and such other
parties as Landlord may designate from time to time as additional insureds)
prior to the Commencement Date, which shall state that such insurance coverage
may not be changed or cancelled without at least twenty (20) days' prior written
notice to Landlord, and shall provide renewal certificates to Landlord at least
twenty (20) days prior to expiration of such policies. Landlord may
periodically, but not more often than every five years, require that Tenant
reasonably increase the aforementioned coverage. Except as provided to the
contrary herein, any insurance carried by Landlord or Tenant shall be for the
sole benefit of the party carrying such insurance. Any insurance policies
hereunder may be "blanket policies." All insurance required hereunder shall be
provided by responsible insurers and Tenant's insurer shall be reasonably
acceptable to Landlord. By this Article, Landlord and Tenant intend that their
respective property loss risks shall be borne by responsible insurance carriers
to the extent above provided, and Landlord and Tenant hereby agree to look
solely to, and seek recovery only from, their respective insurance carriers in
the event of a property loss to the extent that such coverage is agreed to be
provided hereunder. The parties each hereby waive all rights and claims against
each other for such losses, and waive all rights of subrogation of their
respective insurers. The parties agree that their respective insurance policies
are now, or shall be, endorsed such that said waiver of subrogation shall not
affect the right of the insured to recover thereunder, so long as no material
additional premium is charged therefor.
ARTICLE 12
Condemnation
If the whole or any material part of the Premises or Building shall be taken
by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if any adjacent property or street
shall be so taken or condemned, or reconfigured or vacated by such authority in
such manner as to require the use, reconstruction or remodeling of any part of
the Premises or Building, or if Landlord shall grant a deed or other instrument
in lieu of such taking by eminent domain or condemnation, Landlord shall have
the option to terminate this Lease upon ninety (90) days notice, provided such
notice is given no later than one hundred and eighty (180) days after the date
of such taking, condemnation, reconfiguration, vacation, deed or other
instrument. Tenant shall have reciprocal termination rights if the whole or any
material part of the Premises is permanently taken, or if access to the Premises
is permanently materially impaired. Landlord shall be entitled to receive the
entire award or payment in connection therewith, except that Tenant shall have
the right to file any separate claim available to Tenant for any taking of
Tenant's personal property and fixtures belonging to Tenant and removable by
Tenant upon expiration of the Term, and for moving expenses (so long as such
claim does not diminish the award available to Landlord or any Holder, and such
claim is payable separately to Tenant). All Rent shall be apportioned as of the
date of such termination, or the date of such taking, whichever shall first
occur. If any part of the Premises shall be taken, and this Lease shall not be
so terminated, the Rent shall be proportionately abated.
ARTICLE 13
Return of Possession
At the expiration or earlier termination of this Lease or Tenant's right of
possession, Tenant shall surrender possession of the Premises in the condition
required under Article 9, ordinary wear and tear excepted, and shall surrender
all keys, any key cards, and any parking stickers or cards, to Landlord, and
advise Landlord as to the combination of any locks or vaults then remaining in
the Premises, and shall remove all trade fixtures and personal property. All
improvements, fixtures and other items in or upon the Premises (except trade
fixtures and personal property belonging to Tenant), whether installed by Tenant
or Landlord, shall be Landlord's property and shall remain upon the Premises,
all without compensation, allowance or credit to Tenant. However, if prior to
such termination or
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within thirty (30) days thereafter Landlord so directs by notice, Tenant shall
promptly remove such of the foregoing items as are designated in such notice and
restore the Premises to the condition prior to the installation of such items;
provided, Landlord shall not require removal of customary office improvements
installed pursuant to any separate agreement signed by both parties in
connection with entering this Lease (except as expressly provided to the
contrary therein), or installed by Tenant with Landlord's written approval
(except as expressly required by Landlord in connection with granting such
approval). If Tenant shall fail to perform any repairs or restoration, or fail
to remove any items from the Premises or the Complex required hereunder,
Landlord may do so, and Tenant shall pay Landlord the cost thereof upon demand.
All property removed from the Premises or the Complex by Landlord pursuant to
any provisions of this Lease or any Law may be handled or stored by Landlord at
Tenant's expense, and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. All property not removed from the Premises
or retaken from storage by Tenant within thirty (30) days after expiration or
earlier termination of this Lease or Tenant's right to possession, shall at
Landlord's option be conclusively deemed to have been conveyed by Tenant to
Landlord as if by bill of sale without payment by Landlord. Unless prohibited by
applicable Law, Landlord shall have a lien against such property for the costs
incurred in removing and storing the same.
ARTICLE 14
Holding Over
Unless Landlord expressly agrees otherwise in writing, for each day Tenant
shall retain Possession of the Premises or any part thereof after the day on
which this Lease expires or is earlier terminated (the "Hold-Over Period"),
Tenant shall pay for all damages sustained by Landlord on account thereof and
shall pay Landlord the following amounts (or the highest amount permitted by
Law, whichever shall be less), prorated on a per diem basis: (a) one hundred
fifty percent (150%) of the amount of Rent then applicable for each day until
and including the thirtieth day of the Hold-Over Period and (b) two hundred
percent (200%) of the amount of Rent then applicable for each day of the Hold-
Over Period thereafter. The foregoing provisions shall not serve as permission
for Tenant to hold-over, nor serve to extend the Term (although Tenant shall
remain bound to comply with all provisions of this Lease until Tenant vacates
the Premises, and shall be subject to the provisions of Article 13).
Notwithstanding the foregoing to the contrary, at any time before or after
expiration or earlier termination of the Lease, Landlord may serve notice
advising Tenant of the amount of Rent and other terms required, should Tenant
hold over (and if Tenant shall hold over more than one full calendar month after
such notice, Tenant shall thereafter be deemed a month-to-month tenant, on the
terms and provisions of this Lease then in effect, as modified by Landlord's
notice, and except that Tenant shall not be entitled to any renewal or expansion
rights contained in this Lease or any amendments hereto). The provisions of
this Article do not waive Landlord's right of re-entry or right to regain
possession by actions at law or in equity or any other rights hereunder, and any
receipt of payment by Landlord shall not be deemed a consent by Landlord to
Tenant's remaining in possession or be construed as creating or renewing any
lease or right of tenancy between Landlord and Tenant.
ARTICLE 15
No Waiver
No provision of this Lease will be deemed waived by either party unless
expressly waived in writing signed by the waiving party. No waiver shall be
implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision, and
Landlord's consent or approval respecting any action by Tenant shall not
constitute a waiver of the requirement for obtaining Landlord's consent or
approval respecting any subsequent action. Acceptance of Rent by Landlord shall
not constitute a waiver of any breach by Tenant of any term or provision of this
Lease. No acceptance of a lesser amount than the Rent herein stipulated shall
be deemed a waiver of Landlord's right to receive the full amount due, nor shall
any endorsement or statement on any check or payment or any letter accompanying
such 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 full amount due. The acceptance of Rent or of the performance of any other
term or provision from any Person other than Tenant, including any Transferee,
shall not constitute a waiver of Landlord's right to approve any Transfer.
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ARTICLE 16
Attorneys' Fees and Jury Trial
In the event of any litigation between the parties, the prevailing party
shall be entitled to obtain, as part of the judgment, all reasonable attorneys'
fees, costs and expenses incurred in connection with such litigation, except as
may be limited by applicable Law. In the interest of obtaining a speedier and
less costly hearing of any dispute, the parties hereby each irrevocably waive
the right to trial by jury.
ARTICLE 17
Personal Property Taxes, Rent Taxes and Other Taxes
Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions assessed against or levied upon Tenant's fixtures,
furnishings, equipment and personal property located in the Premises, and any
Tenant Work to the Premises under Article 8 which is deemed to be personal
property by any governmental agency or subdivision thereof. Whenever possible,
Tenant shall cause all such items to be assessed and billed separately from the
property of Landlord, In the event any such items shall be assessed and billed
with the property of Landlord, Tenant shall pay Landlord its share of such
taxes, charges or other governmental impositions within thirty (30) days after
Landlord delivers a statement and a copy of the assessment or other
documentation showing the amount of such impositions applicable to Tenant's
property, Tenant shall pay any rent tax or sales tax, service tax, transfer tax
or value added tax, or any other applicable tax on the Rent or services herein
or otherwise respecting this Lease.
ARTICLE 18
Subordination, Attornment and Mortgagee Protection
This Lease is subject and subordinate to all Mortgages (as defined in Article
24) now or hereafter placed upon the Building or the Complex, and all other
encumbrances and matters of public record applicable to the Complex. If any
foreclosure proceedings are initiated by any Holder or a deed in lieu is granted
(or if any ground lease is terminated), Tenant agrees, upon written request of
any such Holder or any purchaser at foreclosure sale, to attorn and pay Rent to
such party and to execute and deliver any instruments necessary or appropriate
to evidence or effectuate such attornment (provided such Holder or purchaser
shall agree to accept this Lease and not disturb Tenant's occupancy, so long as
Tenant does not default and fail to cure within the time permitted hereunder).
However, in the event of attornment, no Holder shall be: (i) liable for any act
or omission of Landlord, or subject to any offsets or defenses which Tenant
might have against Landlord (prior to such Holder becoming Landlord under such
attornment), (ii) liable for any security deposit or bound by any prepaid Rent
not actually received by such Holder, or (iii) bound by any future modification
of this Lease not consented to by such Holder. Any Holder (as defined in
Article 24) may elect to make this Lease prior to the lien of its Mortgage, by
written notice to Tenant, and if the Holder of any prior Mortgage shall require,
this Lease shall be prior to any subordinate Mortgage. Tenant agrees to give
any Holder by certified mail, return receipt requested, a copy of any notice of
default served by Tenant upon Landlord, provided that prior to such notice
Tenant has been notified in writing (by way of service on Tenant of a copy of an
assignment of leases, or otherwise) of the address of such Holder. Tenant
further agrees that if Landlord shall have failed to cure such default within
the times permitted Landlord for cure under this Lease, any such Holder whose
address has been provided to Tenant shall have an additional period of thirty
(30) days in which to cure (or such additional time as may be required due to
causes beyond such Holder's control, including time to obtain possession of the
Complex or the Building by power of sale or judicial action). Tenant shall
execute such documentation as Landlord may reasonably request from time to time,
in order to confirm the matters set forth in this Article in recordable form.
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ARTICLE 19
Estoppel Certificate
Tenant shall from time to time, within twenty (20) days after written request
from Landlord, execute, acknowledge and deliver a statement (i) certifying that
this Lease is unmodified and in full force and effect or, if modified, stating
the nature of such modification and certifying that this Lease as so modified,
is in full force and effect (or if this Lease is claimed not to be in force and
effect, specifying the ground therefor) and any dates to which the Rent has been
paid in advance, and the amount of any Security Deposit, (ii) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if any are claimed, (iii) that
Tenant is in possession of the Premises, if that is the case; (iv) that Tenant
has no off-sets or defenses to the performance of its obligations under this
Lease (or if Tenant believes there are any off-sets or defenses, a full and
complete explanation thereof); (v) that the Premises have been completed in
accordance with the terms and provisions hereof or the Workletter, that Tenant
has accepted the Premises and the condition thereof and of all improvements
thereto and has no claims against Landlord or any other party with respect
thereto; and(vi) certifying such other matters as Landlord may reasonably
request, or as may be requested by Landlord's current or prospective Holders,
insurance carriers, auditors, and prospective purchasers. Any such statement
may be relied upon by any such parties. If Tenant shall fail to execute and
return such statement within the time required herein, Tenant shall be deemed to
have agreed with the matters set forth therein.
ARTICLE 20
Assignment and Subletting
(A) TRANSFERS. Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, as further described
below: (i) assign, mortgage, pledge, hypothecate, encumber, or permit any lien
to attach to, or otherwise transfer, this Lease or any interest hereunder, by
operation of law or otherwise, (ii) sublet the Premises or any part thereof, or
(iii) permit the occupancy of the Premises by any Persons (as defined in Article
24) other than Tenant and its employees (all of the foregoing are hereinafter
sometimes referred to collectively as "Transfers" and any Person to whom any
Transfer is made or sought to be made is hereinafter sometimes referred to as a
"Transferee"). If Tenant shall desire Landlord's consent to any Transfer,
Tenant shall notify Landlord in writing, which notice shall include: (a) the
proposed effective date (which shall not be less than thirty (30) nor more than
one hundred and eighty (180) days after Tenant's notice), (b) the portion of the
Premises to be Transferred (herein called the "Subject Space"), (c) the terms of
the proposed Transfer and the consideration therefor, the name and address of
the proposed Transferee, and a copy of all documentation pertaining to the
proposed Transfer, and (d) current financial statements of the proposed
Transferee certified by an officer, partner or owner thereof, and any other
information to enable Landlord to determine the financial responsibility,
character, and reputation of the proposed Transferee, nature of such
Transferee's business and proposed use of the Subject Space, and such other
information as Landlord may reasonably require. Any Transfer made without
complying with this Article shall, at Landlord's option, be null, void and of no
effect, or shall constitute a Default under this Lease. Whether or not Landlord
shall grant consent, Tenant shall pay Seven Hundred and Fifty and 00/100 Dollars
($750.00) towards Landlord's review and processing expenses, as well as any
reasonable legal fees incurred by Landlord, within thirty (30) days after
written request by Landlord.
(B) APPROVAL. Landlord will not unreasonably withhold its consent to any
proposed Transfer of the Subject Space to the Transferee on the terms specified
in Tenant's notice. The parties hereby agree that it shall be reasonable under
this Lease and under any applicable Law for Landlord to withhold consent to any
proposed Transfer where one or more of the following applies (without limitation
as to other reasonable grounds for withholding consent): (i) the Transferee is
of a character or reputation or engaged in a business which is not consistent
with the quality of the Complex, or would be a significantly less prestigious
occupant of the Complex than Tenant, (ii) the Transferee intends to use the
Subject Space for purposes which are not permitted under this Lease, (iii) the
Subject Space is not regular in shape with appropriate means of ingress and
egress suitable for normal renting purposes, (iv) the Transferee is either a
government (or agency or instrumentality thereof) or an occupant of the Complex,
(v) the proposed Transferee does not have a reasonable financial condition in
relation to the obligations to be assumed in connection with the Transfer, (vi)
Tenant has committed and failed to cure a Default at the time Tenant requests
consent to the proposed Transfer, (vii) in the judgment of Landlord, such a
Transfer would violate any term, condition, covenant, or agreement of the
Landlord involving the Complex or any other tenant's lease within it; or (viii)
any other basis which Landlord reasonably deems appropriate. If Landlord
wrongfully withholds its consent to any Transfer, Tenant's sole and exclusive
remedy therefor shall be to seek specific performance of Landlord's obligation
to consent to such Transfer.
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(C) TRANSFER PREMIUM. If Landlord consents to a Transfer, and as a condition
thereto which the parties hereby agree is reasonable, Tenant shall pay Landlord
fifty percent (50%) of any Transfer Premium derived by Tenant from such
Transfer. "Transfer Premium" shall mean all rent, additional rent or other
consideration paid by such Transferee in excess of the Rent payable by Tenant
under this Lease (on a monthly basis during the Term, and on a per rentable
square foot basis, if less than all of the Premises is transferred), after
deducting the reasonable expenses incurred by Tenant for any changes,
alterations and improvements to the Premises, any other economic concessions or
services provided to the Transferee, and any customary brokerage commissions
paid in connection with the Transfer. If part of the consideration for such
Transfer shall be payable other than in cash, Landlord's share of such non-cash
consideration shall be in such form as is reasonably satisfactory to Landlord.
The percentage of the Transfer Premium due Landlord hereunder shall be paid
within ten (10) days after Tenant receives any Transfer Premium from the
Transferee.
(D) RECAPTURE. Notwithstanding anything to the contrary contained in this
Article, Landlord shall have the option, by giving written notice to Tenant
within thirty (30) days after receipt of Tenant's notice of any proposed
Transfer, to recapture the Subject Space. Such recapture notice shall cancel
and terminate this Lease with respect to the Subject Space as of the date stated
in Tenant's notice as the effective date of the proposed Transfer (or at
Landlord's option, shall cause the Transfer to be made to Landlord or its agent,
in which case the parties shall execute the Transfer documentation promptly
thereafter). If this Lease shall be canceled with respect to less than the
entire Premises, the Rent reserved herein shall be prorated on the basis of the
number of rentable square feet retained by Tenant in proportion to the number of
rentable square feet contained in the Premises, this Lease as so amended shall
continue thereafter in full force and effect, and upon request of either party,
the parties shall execute written confirmation of the same.
(E) TERMS OF CONSENT. If Landlord consents to a Transfer: (a) the terms and
conditions of this Lease, including among other things, Tenant's liability for
the Subject Space, shall in no way be deemed to have been waived or modified,
(b) such consent shall not be deemed consent to any further Transfer by either
Tenant or a Transferee, (c) no Transferee shall succeed to any rights provided
in this Lease or any amendment hereto to extend the Term of this Lease, expand
the Premises, or lease additional space, any such rights being deemed personal
to Tenant, (d) Tenant shall deliver to Landlord promptly after execution, an
original executed copy of all documentation pertaining to the Transfer in form
reasonably acceptable to Landlord, and (e) Tenant shall furnish upon Landlord's
request a complete statement, certified by an independent certified public
accountant, or Tenant's chief financial officer, setting forth in detail the
computation of any Transfer Premium Tenant has derived and shall derive from
such Transfer. Landlord or its authorized representatives shall have the right
at all reasonable times to audit the books, records and papers of Tenant
relating to any Transfer, and shall have the right to make copies thereof. If
the Transfer Premium respecting any Transfer shall be found understated, Tenant
shall within thirty (30) days after demand pay the deficiency, and if
understated by more than two percent (2%), Tenant shall pay Landlord's costs of
such audit. Any sublease hereunder shall be subordinate and subject to the
provisions of this Lease, and if this Lease shall be terminated during the term
of any sublease, Landlord shall have the right to: (i) treat such sublease as
canceled and repossess the Subject Space by any lawful means, or (ii) require
that such subtenant attorn to and recognize Landlord as its landlord under any
such sublease. If Tenant shall Default and fail to cure within the time
permitted for cure under Article 22(A), Landlord is hereby irrevocably
authorized, as Tenant's agent and attorney-in-fact, to direct any Transferee to
make all payments under or in connection with the Transfer directly to Landlord
(which Landlord shall apply towards Tenant's obligations under this Lease) until
such Default is cured.
(F) CERTAIN TRANSFERS. For purposes of this Lease, the term "Transfer" shall
also include (a) if Tenant is a partnership or a limited liability company, the
withdrawal or change, voluntary, involuntary or by operation of law, of a
majority of the partners or members, as the case may be, or a transfer of a
majority of partnership interests or membership interests, as the case may be,
within a twelve month period, or the dissolution of the partnership or the
limited liability company, as the case may be, and (b) if Tenant is a
corporation whose stock is not publicly held and not traded through an exchange
or over the counter, the dissolution, merger, consolidation or other
reorganization of Tenant, or within a twelve month period: (i) the sale or
other transfer of more than an aggregate of fifty percent (50%) of the voting
shares of Tenant (other than to immediate family members by reason of gift or
death) or (ii) the sale, mortgage, hypothecation or pledge of more than an
aggregate of fifty percent (50%) of Tenant's net assets.
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ARTICLE 21
Rights Reserved By Landlord
Except to the extent expressly limited herein, Landlord reserves full rights
to control the Complex (which rights may be exercised without subjecting
Landlord to claims for constructive eviction, abatement of Rent, damages or
other claims of any kind), including more particularly, but without limitation,
the following rights:
(A) To change the name or street address of the Complex or any part thereof;
install and maintain signs on the exterior and interior of the Complex; retain
at all times, and use in appropriate instances, keys to all doors within and
into the Premises; grant to any Person the right to conduct any business or
render any service at the Complex, whether or not it is the same or similar to
the use permitted Tenant by this Lease; and have access for Landlord and other
tenants of the Building to any mail chutes located on the Premises according to
the rules of the United States Postal Service.
(B) To enter the Premises at reasonable hours for reasonable purposes:
including inspection and supplying cleaning service or other services to be
provided Tenant hereunder, to show the Premises to current and prospective
mortgage lenders, ground lessors, insurers, and prospective purchasers, tenants
and brokers, at reasonable hours, and if Tenant shall abandon the Premises at
any time, or shall vacate the same during the last three (3) months of the Term,
to decorate, remodel, repair, or alter the Premises.
(C) To limit or prevent access to the Complex and the Building, shut down
elevator service, activate elevator emergency controls, or otherwise take such
action or preventative measures deemed necessary by Landlord for the safety of
tenants or other occupants of the Complex or the protection of the Complex and
other property located thereon or therein, in case of fire, invasion,
insurrection, riot, civil disorder, public excitement or other dangerous
condition, or threat thereof.
(D) To decorate and to make alterations, additions and improvements,
structural or otherwise, in or to the Complex or any part thereof, including the
Building, and to any adjacent building, structure, parking facility, land,
street or alley (including without limitation changes and reductions in
corridors, lobbies, parking facilities and other public areas and the
installation of kiosks, planters, sculptures, displays, escalators, mezzanines,
and other structures, facilities, amenities and features therein, and changes
for the purpose of connection with or entrance into or use of the Building or
the Complex in conjunction with any adjoining or adjacent building or buildings,
now existing or hereafter constructed). In connection with such matters, or
with any other repairs, maintenance, improvements or alterations, in or about
the Building and the Complex, Landlord may erect scaffolding and other
structures reasonably required, and during such operations may enter upon the
Premises and take into and upon or through the Premises, all materials required
to make such repairs, maintenance, alterations or improvements, and may close
public entry ways, other public areas, restrooms, stairways or corridors and
Tenant agrees to pay Landlord for overtime and similar expenses incurred if such
work is done other than during ordinary business hours at Tenant's request.
(E) To substitute for the Premises other premises (herein referred to as the
"new premises") at the Complex, or another comparable building, provided: (i)
the new premises shall be similar to the Premises in area, (ii) Landlord shall
give Tenant at least ninety (90) days' written notice before making such change,
and the parties shall execute an amendment to the Lease confirming the change
within thirty (30) days after either party shall request the same; and (iii) if
Tenant shall already have taken possession of the Premises: (a) Landlord shall
pay the direct, out-of-pocket, reasonable expenses of Tenant in moving from the
Premises to the new premises, reinstalling the Tenant's personal property and
equipment in the new premises, replacing stationery and business cards rendered
unusable by such relocation, and improving the new premises so that they are
substantially similar to the Premises, and, (b) such move shall be made during
evenings, weekends, or otherwise so as to incur the least inconvenience to
Tenant. Tenant waives any claim for damages, abatement of Rent or loss of
profits due to such relocation. Upon the date of such relocation,
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the Relocation Premises shall become and be deemed the Premises hereunder and
all the terms and conditions of this Lease shall be applicable to the new
Premises, including, without limitation, the right of Landlord to again relocate
Tenant pursuant to this Article 19(E).
(G) To install, use and maintain in and through the Premises pipes, conduits,
wires, ducts or mechanical installations serving the Building. Tenant agrees
that there shall be no construction of partitions or other obstructions which
might interfere with the moving or the servicing of equipment of Landlord to or
from the enclosures containing such installations and Tenant further agrees that
neither Tenant, nor its servants, employees, agents, visitors, licensees, or
contractors shall at any time tamper with, adjust, or otherwise in any manner
affect Landlord's mechanical installations.
(H) To take any other action which Landlord deems reasonable in connection
with the operation, maintenance, marketing, or preservation of the Building or
the Complex.
(I) To sell one or more or all of the buildings in the Complex.
(J) To approve the weight, size, and location of safes or other heavy
equipment or articles, which articles may be moved in, about, or out of the
Building or Premises only at such times and in such manner as Landlord shall
direct, at Tenant's sole risk and responsibility.
(K) To re-determine the rentable square footage of the Premises, the Building
or the Complex (or any part thereof) at any time during the Lease Term by
remeasuring the area thereof in accordance with the then current ANSI/BOMA
standards so long as any such remeasurement shall not result in an increase or
decrease in Base Rent or Additional Rent as set forth in this Lease for the
balance of the Term.
In connection with entering the Premises to exercise any of the foregoing
rights, Landlord shall: (a) provide reasonable advance written or oral notice
to Tenant's on-site manager or other appropriate person (except in emergencies,
or for routine cleaning or other routine matters), and (b) take reasonable steps
to minimize any interference with Tenant's business.
ARTICLE 22
Landlord's Remedies
(A) DEFAULT. The occurrence of any one or more of the following events shall
constitute a "Default" by Tenant, which if not cured within any applicable time
permitted for cure below, shall give rise to Landlord's remedies set forth in
Paragraph (B), below: (i) failure by Tenant to make when due any payment of
Rent, unless such failure is cured within five (5) days after notice; (ii)
failure by Tenant to observe or perform any of the terms or conditions of this
Lease to be observed or performed by Tenant other than the payment of Rent, or
as provided below, unless such failure is cured within thirty (30) days after
notice, or such shorter period expressly provided elsewhere in this Lease
(provided, if the nature of Tenant's failure is such that more time is
reasonably required in order to cure, Tenant shall not be in Default if Tenant
commences to cure within such period and thereafter reasonably seeks to cure
such failure to completion); (iii) failure by Tenant to comply with the Rules,
unless such failure is cured within five (5) days after notice (provided, if the
nature of Tenant's failure is such that more than five (5) days time is
reasonably required in order to cure. Tenant shall not be in Default if Tenant
commences to cure within such period and thereafter reasonably seeks to cure
such failure to completion); (iv) vacation of all or a substantial portion of
the Premises for more than thirty (30) consecutive days, or the failure to take
possession of the Premises within sixty (60) days after the Commencement Date;
(v) (a) making by Tenant or any guarantor of this Lease ("Guarantor") of any
general assignment for the benefit of creditors, (b) filing by or against Tenant
or any Guarantor of a petition to have Tenant or such Guarantor adjudged a
bankrupt or a petition for reorganization or arrangement under any Law relating
to bankruptcy (unless, in the case of a petition filed against Tenant or such
Guarantor, the same is dismissed within sixty (60) days), (c) appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located on the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days, (d) attachment, execution or
other judicial seizure
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of substantially all of Tenant's assets located on the Premises or of Tenant's
interest in this Lease, (e) Tenant's or any Guarantor's convening of a meeting
of its creditors or any class thereof for the purpose of effecting a moratorium
upon or composition of its debts, or (f) Tenant's or any Guarantor's insolvency
or admission of an inability to pay its debts as they mature; (vi) any material
misrepresentation herein, or material misrepresentation or omission in any
financial statements or other materials provided by Tenant or any Guarantor in
connection with negotiating or entering this Lease or in connection with any
Transfer under Article 21; (vii) cancellation of any guaranty of this Lease by
any Guarantor; (viii) failure by Tenant to cure within any applicable times
permitted thereunder any default under any other lease for space at the Complex
or any other buildings owned or managed by Landlord or its affiliates, now or
hereafter entered by Tenant (and any Default hereunder not cured within the
times permitted for cure herein shall, at Landlord's election, constitute a
default under any such other lease or leases). Failure by Tenant to comply with
the same term or condition of this Lease on three occasions during any twelve
month period shall cause any failure to comply with such term or condition
during the succeeding twelve month period, at Landlord's option, to constitute
an incurable Default, if Landlord has given Tenant notice of each such failure
within ten (10) days after each such failure occurs. The notice and cure periods
provided herein are in lieu of, and not in addition to, any notice and cure
periods provided by Law.
(B) REMEDIES. If a Default occurs and is not cured within any applicable
time permitted under Paragraph (A), Landlord shall have the rights and remedies
hereinafter set forth, which shall be distinct, separate and cumulative with and
in addition to any other right or remedy allowed under any Law or other
provisions of this Lease:
(i) Landlord may terminate this Lease, repossess the Premises by detainer
suit, summary proceedings or other lawful means, and recover as damages a sum of
money equal to: (a) any unpaid Rent as of the termination date including
interest at the Default Rate (as defined in Article 24), (b) any unpaid Rent
which would have accrued after the termination date through the time of award
including interest at the Default Rate, less such loss of Rent that Tenant
proves could have been reasonably avoided, (c) any unpaid Rent which would have
accrued after the time of award during the balance of the Term, less such loss
of Rent that Tenant proves could be reasonably avoided, and (d) any other
amounts necessary to compensate Landlord for all damages proximately caused by
Tenant's failure to perform its obligations under this Lease, including without
limitation all Costs of Reletting (as defined in Paragraph F). For purposes of
computing the amount of Rent herein that would have accrued after the time of
award, Tenant's Prorata Share of Taxes and Operating Expenses, shall be
projected, based upon the average rate of increase, if any, in such items from
the Commencement Date through the time of award.
(ii) If applicable Law permits, Landlord may terminate Tenant's right of
possession and repossess the Premises by detainer suit, summary proceedings or
other lawful means, without terminating this Lease (and if such Law permits, and
Landlord shall not have expressly terminated the Lease in writing, any
termination shall be deemed a termination of Tenant's right of possession only).
In such event, Landlord may recover: (a) any unpaid Rent as of the date
possession is terminated, including interest at the Default Rate, (b) any unpaid
Rent which accrues during the Term from the date possession is terminated
through the time of award (or which may have accrued from the time of any
earlier award obtained by Landlord through the time of award), including
interest at the Default Rate, less any Net Re-Letting Proceeds (as defined in
Paragraph F) received by Landlord during such period, and less such loss of Rent
that Tenant proves could have been reasonably avoided, and (c) any other amounts
necessary to compensate Landlord for all damages proximately caused by Tenant's
failure to perform its obligations under this Lease, including without
limitation, all Costs of Reletting (as defined in Paragraph F). Landlord may
bring suits for such amounts or portions thereof, at any time or times as the
same accrue or after the same have accrued, and no suit or recovery of any
portion due hereunder shall be deemed a waiver of Landlord's right to collect
all amounts to which Landlord is entitled hereunder, nor shall the same serve as
any defense to any subsequent suit brought for any amount not theretofore
reduced to judgment.
(C) MITIGATION OF DAMAGES. If Landlord terminates this Lease or Tenant's
right to possession, Landlord shall use reasonable efforts to mitigate
Landlord's damages, and Tenant shall be entitled to submit proof of such failure
to mitigate as a defense to Landlord's claims hereunder, if mitigation of
damages by Landlord is required by applicable Law. If Landlord has not
terminated this Lease or Tenant's right to possession, Landlord shall have no
obligation to mitigate, and may permit the Premises to remain vacant or
abandoned; in such case, Tenant may seek to mitigate damages by attempting to
sublease the Premises or assign this Lease (subject to Article 20).
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(D) SPECIFIC PERFORMANCE, COLLECTION OF RENT AND ACCELERATION. Landlord
shall at all times have the rights and remedies (which shall be cumulative with
each other and cumulative and in addition to those rights and remedies available
under Paragraph (B), above or any Law or other provision of this Lease), without
prior demand or notice except as required by applicable Law: (i) to seek any
declaratory, injunctive or other equitable relief, and specifically enforce this
Lease, or restrain or enjoin a violation or breach of any provision hereof, and
(ii) to sue for and collect any unpaid Rent which has accrued. Notwithstanding
anything to the contrary contained in this Lease, to the extent not expressly
prohibited by applicable Law, in the event of any Default by Tenant not cured
within any applicable time for cure hereunder, Landlord may terminate this Lease
or Tenant's right to possession and accelerate and declare that all Rent
reserved for the remainder of the Term shall be immediately due and payable (in
which event, Tenant's Prorata Share of Taxes and Operating Expenses, for the
remainder of the Term shall be projected based upon the average rate of
increase, if any, in such items from the Commencement Date through the date of
such declaration); provided, Landlord shall, after receiving payment of the same
from Tenant, be obligated to turn over to Tenant any actual Net Re-Letting
Proceeds thereafter received during the remainder of the Term, up to the amount
so received from Tenant pursuant to this provision.
(E) LATE CHARGES AND INTEREST. Tenant shall pay, as additional Rent, a
service charge of Two Hundred Dollars ($200.00) for bookkeeping and
administrative expenses, if Rent is not received within five (5) days after its
due date. In addition, any Rent paid more than five (5) days after due shall
accrue interest from the due date at the Default Rate (as defined in Article
24), until payment is received by Landlord, and Tenant shall pay Landlord a late
charge for any Rent payment which is paid more than five (5) days after its due
date equal to five percent (5%) of such payment. Such service charge and
interest payments shall not be deemed consent by Landlord to late payments, nor
a waiver of Landlord's right to insist upon timely payments at any time, nor a
waiver of any remedies to which Landlord is entitled as a result of the late
payment of Rent. Landlord may but shall not be obligated to perform any
obligation of Tenant under this Lease and if Landlord so elects, all costs and
expenses paid by Landlord in performing such obligation, together with interest
at the Default Rate, shall be reimbursed by Tenant to Landlord on demand. Any
and all remedies set forth in this Lease: (i) shall be in addition to any and
all other remedies Landlord may have at law or in equity, (ii) shall be
cumulative, and (iii) may be pursued successively or concurrently as Landlord
may elect. The exercise of any remedy by Landlord shall not be deemed an
election of remedies or preclude Landlord from exercising any other remedies in
the future.
(F) CERTAIN DEFINITIONS. "Net Re-Letting Proceeds" shall mean the total
amount of rent and other consideration paid by any Replacement Tenants, less all
Costs of Re-Letting, during a given period of time. "Costs of Re-Letting" shall
include without limitation, all reasonable costs and expenses incurred by
Landlord for any repairs, maintenance, changes, alterations and improvements to
the Premises, brokerage commissions, advertising costs, attorneys' fees, any
customary free rent periods or credits, tenant improvement allowances, take-over
lease obligations and other customary, necessary or appropriate economic
incentives required to enter leases with Replacement Tenants, and costs of
collecting rent from Replacement Tenants. "Replacement Tenants" shall mean any
Persons (as defined in Article 24) to whom Landlord re-lets the Premises or any
portion thereof pursuant to this Article.
(G) OTHER MATTERS. No re-entry or repossession, repairs, changes,
alterations and additions, reletting, acceptance of keys from Tenant, or any
other action or omission by Landlord shall be construed as an election by
Landlord to terminate this Lease or Tenant's right to possession, or accept a
surrender of the Premises, nor shall the same operate to release the Tenant in
whole or in part from any of Tenant's obligations hereunder, unless express
written notice of such intention is sent by Landlord or its agent to Tenant. To
the fullest extent permitted by Law, all rent and other consideration paid by
any Replacement Tenants shall be applied: first, to the Costs of Re-Letting,
second, to the payment of any Rent theretofore accrued, and the residue, if any,
shall be held by Landlord and applied to the payment of other obligations of
Tenant to Landlord as the same become due (with any remaining residue to be
retained by Landlord). Rent shall be paid without any prior demand or notice
therefor (except as expressly provided herein) and without any deduction, set-
off or counterclaim, or relief from any valuation or appraisement laws.
Landlord may apply payments received from Tenant to any obligations of Tenant
then accrued, without regard to such obligations as may be designated by Tenant.
Landlord shall be under no obligation to observe or perform any provision of
this Lease on its part to be observed or performed which accrues after the date
of any Default by Tenant hereunder not cured within the times permitted
hereunder. The times set forth herein for the curing of Defaults by Tenant are
of the essence of this
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Lease. Tenant hereby irrevocably waives any right otherwise available under any
Law to redeem or reinstate this Lease, including the right to interpose any
counterclaim in any proceeding instituted by Landlord against Tenant to
terminate the Lease, to obtain possession of the Premises, or to recover Rent.
(H) CROSS DEFAULT. In the event that, at any time during the Term, Tenant
(or any affiliated or related person or entity of or to Tenant) shall be in
default under another lease (the "Other Lease") with Landlord (or any affiliated
or related entity of Landlord) or with Landlord's predecessor-in-interest,
Landlord may, at Landlord's option, deem such default under the Other Lease as a
default by Tenant under this Lease (and Tenant shall thereafter be in default
under this Lease) and Landlord may exercise all rights and remedies pursuant to
this Lease and at law or in equity which Landlord may have upon a default by
Tenant under this Lease. Without limiting the foregoing, Landlord shall be
permitted to add to any amount owing by Tenant to Landlord hereunder all amounts
owing by the tenant to the Landlord the Other Lease.
ARTICLE 23
Landlord's Right to Cure
If Landlord shall fail to perform any term or provision under this Lease
required to be performed by Landlord, Landlord shall not be deemed to be in
default hereunder nor subject to any claims for damages of any kind, unless such
failure shall have continued for a period of thirty (30) days after written
notice thereof by Tenant; provided, if the nature of Landlord's failure is such
that more than thirty (30) days are reasonably required in order to cure,
Landlord shall not be in default if Landlord commences to cure such failure
within such thirty (30) day period, and thereafter reasonably seeks to cure such
failure to completion. The aforementioned periods of time permitted for
Landlord to cure shall be extended for any period of time during which Landlord
is delayed in, or prevented from, curing due to fire or other casualty, strikes,
lock-outs or other labor troubles, shortages of equipment or materials,
governmental requirements, power shortages or outages, acts or omissions by
Tenant or other Persons, and other causes beyond Landlord's reasonable control.
If Landlord shall fail to cure within the times permitted for cure herein,
Landlord shall be subject to such remedies as may be available to Tenant
(subject to the other provisions of this Lease); provided, in recognition that
Landlord must receive timely payments of Rent and operate the Complex, Tenant
shall have no right of self-help to perform repairs or any other obligation of
Landlord, and shall have no right to withhold, set-off, or abate Rent.
ARTICLE 24
Captions, Definitions and Severability
The captions of the Articles and Paragraphs of this Lease are for convenience
of reference only and shall not be considered or referred to in resolving
questions of interpretation. If any term or provision of this Lease shall be
found invalid, void, illegal, or unenforceable with respect to any particular
Person by a court of competent jurisdiction, it shall not affect, impair or
invalidate any other terms or provisions hereof, or its enforceability with
respect to any other Person, the parties hereto agreeing that they would have
entered into the remaining portion of this Lease notwithstanding the omission of
the portion or portions adjudged invalid, void, illegal, or unenforceable with
respect to such Person.
(A) "Building" shall mean the structure identified in Article 1 of this
Lease.
(B) "Complex" shall mean the Building, together with the four other buildings
comprising the Town Center office retail building complex identified in Article
1 of this Lease and any common or public areas or facilities, easements,
corridors, lobbies, sidewalks, loading areas, driveways, landscaped areas,
skywalks, parking garages and lots, and any and all other structures or
facilities operated or maintained in connection with or for the benefit of the
Building and the Complex, and all parcels or tracts of land on which all or any
portion of the Complex or any of the other foregoing items are located, and any
fixtures, machinery, equipment, apparatus, Systems and Equipment, furniture and
other personal property located thereon or therein and used in connection
therewith, whether title is held by Landlord or its affiliates. Possession of
areas necessary for utilities, services, safety and operation of the Complex,
including the Systems and Equipment (as defined in Article 24), fire stairways,
perimeter walls, space between the finished ceiling of the Premises
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and the slab of the floor or roof of the Building there above, and the use
thereof together with the right to install, maintain, operate, repair and
replace the Systems and Equipment, including any of the same in, through, under
or above the Premises in locations that will not materially interfere with
Tenant's use of the Premises, are hereby excepted and reserved by Landlord, and
not demised to Tenant. If the Building shall be part of a complex, development
or group of buildings or structures collectively owned or managed by Landlord or
its affiliates or collectively managed by Landlord's managing agent, the Complex
shall, at Landlord's option also be deemed to include such other of those
buildings or structures as Landlord shall from time to time designate, and shall
initially include such buildings and structures (and related facilities and
parcels on which the same are located) as Landlord shall have incorporated by
reference in Article 1.
(C) "Default Rate" shall mean eighteen percent (18%) per annum, or the
highest rate permitted by applicable Law, whichever shall be less.
(D) "Holder" shall mean the holder of any Mortgage at the time in question,
and where such Mortgage is a ground lease, such term shall refer to the ground
lessor.
(E) "Holidays" shall mean all federally observed holidays, including New
Year's Day, President's Day, Memorial Day, Independence Day, Labor Day,
Veterans' Day, Thanksgiving Day, Christmas Day, and to the extent of utilities
or services provided by union members engaged at the Complex, such other
holidays observed by such unions.
(F) "Landlord" and "Tenant" shall be applicable to one or more Persons as the
case may be, and the singular shall include the plural, and the neuter shall
include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, members,
managers, affiliates, successors and assigns.
(G) "Law" shall mean all federal, state, county and local governmental and
municipal laws, statutes, ordinances, rules, regulations, codes, decrees, orders
and other such requirements, applicable equitable remedies and decisions by
courts in cases where such decisions are considered binding precedents in the
state in which the Complex is located, and decisions of federal courts applying
the Laws of such State.
(H) "Lease Year" shall mean each consecutive twelve (12) month period
commencing on the Commencement Date or if the Commencement Date is not the first
(1st) day of a month, the first day of the month following the month in which
the Commencement Date occurs.
(I) "Mortgage" shall mean all mortgages, deeds of trust, ground leases and
other such encumbrances now or hereafter placed upon the Complex or Building, or
any part thereof, and all renewals, modifications, consolidations, replacements
or extensions thereof, and all indebtedness now or hereafter secured thereby and
all interest thereon.
(J) "Operating Expenses" shall mean all expenses, costs and amounts (other
than Taxes) of every kind and nature which Landlord shall pay during any
calendar year any portion of which occurs during the Term, because of or in
connection with the ownership, management, repair, maintenance, replacement,
restoration and operation of the Complex (provided, however, that in the event
Landlord elects to determine Tenant's Prorata Share on the basis of the rentable
area of the Building as opposed to the rentable area of the Complex, as further
described in Section 24(O) below, Landlord shall take into account and allocate
among the buildings located within the Complex all such expenses, costs and
disbursements paid or incurred by Landlord in connection with the Complex
generally including all other areas and improvements, in addition to the
Building, which may be provided by Landlord for the general use in common of the
tenants of the Complex and their respective officers, agents, employees,
invitees and customers and for the servicing of the Complex), including without
limitation, any amounts paid for: (a) utilities for the Complex, including but
not limited to electricity, power, gas, steam, chilled water, oil or other fuel,
water, sewer, lighting, heating, air conditioning and ventilating, (b) permits,
licenses and certificates necessary to operate, manage and lease the Complex,
(c) insurance applicable to the Complex, not limited to the amount of coverage
Landlord is required to provide under this Lease, (d) supplies, tools, equipment
and materials used in the operation, repair and maintenance of the Complex, (e)
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accounting, legal, inspection, consulting, concierge and other services, (f) any
equipment rental (or installment equipment purchase or equipment financing
agreements), or management agreements (including the cost of any management fee
actually paid thereunder and the fair rental value of any office space provided
thereunder, up to customary and reasonable amounts), (g) wages, salaries and
other compensation and benefits (including the fair value of any parking
privileges provided) for all persons engaged in the operation, maintenance or
security of the Complex, and employer's Social Security taxes, unemployment
taxes or insurance, and any other taxes which may be levied on such wages,
salaries, compensation and benefits, (h) payments under any easement, operating
agreement, declaration, restrictive covenant, or instrument pertaining to the
sharing of costs in any planned development, and (i) operation, repair, and
maintenance of all Systems and Equipment and components thereof (including
replacement of components), janitorial service, alarm and security service,
window cleaning, trash removal, elevator maintenance, cleaning of walks, parking
facilities and building walls, removal of ice and snow, replacement of wall and
floor coverings, ceiling tiles and fixtures in lobbies, corridors, restrooms and
other common or public areas or facilities, maintenance and replacement of
shrubs, trees, grass, sod and other landscaped items, irrigation systems,
drainage facilities, fences, curbs, and walkways, re-paving and re-striping
parking facilities, and roof repairs. If any area within the Complex (or within
the Building, as the case may be) available for office lease is not fully
occupied during all or a portion of any calendar year, Landlord may, in
accordance with sound accounting and management practices, determine the amount
of variable Operating Expenses (i.e. those items which vary according to
occupancy levels) that would have been paid had such area been fully occupied,
and the amount so determined shall be deemed to have been the amount of variable
Operating Expenses for such year. Notwithstanding the foregoing, Operating
Expenses shall not, however, include:
(i) depreciation, interest and amortization on Mortgages, and other debt
costs or ground lease payments, if any; legal fees in connection with
leasing, tenant disputes or enforcement of leases; real estate brokers'
leasing commissions; improvements or alterations to tenant spaces; the cost
of providing any service directly to and paid directly by, any tenant; any
costs expressly excluded from Operating Expenses elsewhere in this Lease;
costs of any items to the extent Landlord receives reimbursement from
insurance proceeds or from a third party (such proceeds to be deducted from
Operating Expenses in the year in which received); and
(ii) capital expenditures, except those: (a) made primarily to reduce
Operating Expenses, or to comply with any Laws or other governmental
requirements, or (b) for replacements (as opposed to additions or new
improvements) of non-structural items located in the common areas of the
Complex required to keep such areas in good condition; provided, all such
permitted capital expenditures (together with reasonable financing charges)
shall be amortized for purposes of this Lease over the shorter of: (i) their
useful lives, (ii) the period during which the reasonably estimated savings
in Operating Expenses equals the expenditures, or (iii) three (3) years.
(K) "Person" shall mean an individual, trust, partnership, joint venture,
association, corporation, and any other entity.
(L) "Rent" shall have the meaning specified therefor in Article 3(F).
(M) "Systems and Equipment" shall mean any plant, machinery, transformers,
duct work, cable, wires, and other equipment, facilities, and systems designed
to supply heat, ventilation, air conditioning and humidity or any other services
or utilities, or comprising or serving as any component or portion of the
electrical, gas, steam, plumbing, sprinkler, communications, alarm, security, or
fire/life/safety systems or equipment, or any other mechanical, electrical,
electronic, computer or other systems or equipment for the Complex.
(N) "Taxes" shall mean all federal, state, county, or local governmental or
municipal taxes, fees, charges or other impositions of every kind and nature,
whether general, special, ordinary or extraordinary (including without
limitation, real estate taxes, general and special assessments, transit taxes,
water and sewer rents, taxes based upon the receipt of rent including gross
receipts or sales taxes applicable to the receipt of rent or service or value
added taxes (unless required to be paid by Tenant under Article 17), personal
property taxes imposed upon the fixtures, machinery, equipment, apparatus,
Systems and Equipment, appurtenances, furniture and other personal property used
in connection with the Complex taking into account all buildings within the
Complex for which Taxes are levied upon the Complex, which Landlord shall pay
during any calendar year, any portion of which occurs during the Term (without
regard to any different fiscal year used by such government or municipal
authority) because of or in connection with the ownership, leasing and operation
of the Complex. In the event Landlord elects to determine Tenant's Prorata
Share on the basis of the rentable area of the Building as opposed to the
rentable area of the Complex, as further described in Section 24(O) below,
Landlord shall allocate among the buildings within the Complex all Taxes levied
upon the Complex which Landlord shall pay during any calendar year, any portion
of which occurs during the Term (without
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regard to any different fiscal year used by such government or municipal
authority) because of or in connection with the ownership, leasing and operation
of the Complex. Notwithstanding the foregoing, there shall be excluded from
Taxes all excess profits taxes, franchise taxes, gift taxes, capital stock
taxes, inheritance and succession taxes, estate taxes, federal and state income
taxes, and other taxes to the extent applicable to Landlord's general or net
income (as opposed to rents, receipts or income attributable to operations at
the Complex). If the method of taxation of real estate prevailing at the time of
execution hereof shall be, or has been altered, so as to cause the whole or any
part of the taxes now, hereafter or heretofore levied, assessed or imposed on
real estate to be levied, assessed or imposed on Landlord, wholly or partially,
as a capital levy or otherwise, or on or measured by the rents received
therefrom, then such new or altered taxes attributable to the Complex (or the
Building, as the case may be) shall be included within the term "Taxes," except
that the same shall not include any enhancement of said tax attributable to
other income of Landlord. Any expenses incurred by Landlord in attempting to
protest, reduce or minimize Taxes shall be included in Taxes in the calendar
year such expenses are paid. Tax refunds shall be deducted from Taxes in the
year they are received by Landlord, but if such refund shall relate to taxes
paid in a prior year of the Term, and the Lease shall have expired, Landlord
shall mail Tenant's Prorata Share of such net refund (after deducting expenses
and attorneys' fees), up to the amount Tenant paid towards Taxes during such
year, to Tenant's last known address. If Taxes for any period during the Term or
any extension thereof, shall be increased after payment thereof by Landlord, for
any reason including without limitation error or reassessment by applicable
governmental or municipal authorities, Tenant shall pay Landlord upon demand
Tenant's Prorata Share of such increased Taxes. Tenant shall pay increased Taxes
whether Taxes are increased as a result of increases in the assessments or
valuation of the Complex, or the Building, as the case may be, (whether based on
a sale, change in ownership or refinancing of the Complex, or the Building, as
the case may be, or otherwise) increases in the tax rates, reduction or
elimination of any rollbacks or other deductions available under current law,
scheduled reductions of any tax abatement, as a result of the elimination,
invalidity or withdrawal of any tax abatement, or for any other cause
whatsoever. Notwithstanding the foregoing, if any Taxes shall be paid based on
assessments or bills by a governmental or municipal authority using a fiscal
year other than a calendar year, Landlord may elect to average the assessments
or bills for the subject calendar year, based on the number of months of such
calendar year included in each such assessment or bill.
(O) "Tenant's Prorata Share" of Taxes and Operating Expenses shall be the
rentable area of the Premises divided by the rentable area of the Complex on the
last day of the calendar year for which Taxes or Operating Expenses are being
determined, which amount is currently .451%. Tenant acknowledges that the
"rentable area of the Premises" under this Lease includes the usable area,
without deduction for columns or projections, multiplied by a load or conversion
factor, to reflect a share of certain areas, which may include lobbies,
corridors, mechanical, utility, janitorial, boiler and service rooms and
closets, restrooms, and other public, common and service areas. The "rentable
area of the Complex" shall include all rentable area of all office space leased
or available for lease at the Complex, as may be re-determined from time to time
by Landlord in accordance with sound accounting and management principles, to
reflect the addition, subtraction, re-configuration or modification of available
office space in the Complex. If the Complex or any of the buildings in the
Complex shall contain space not used or available to be used for office
purposes, Landlord shall have the right to exclude, in accordance with sound
accounting and management principles, such non-office areas from the rentable
area of the Complex. Similarly, if the Complex contains tenants who do not
participate in all or certain categories of Taxes or Operating Expenses on a
prorata basis, Landlord may exclude, in accordance with sound accounting and
management principles the amount of Taxes or Operating Expenses, or such
categories of the same, as the case may be, attributable to such tenants, and
exclude the rentable area of their premises, in computing the rentable area of
the Complex. In the alternative, Landlord shall have the right to determine, in
accordance with sound accounting and management principles, Tenant's Prorata
Share of Taxes and Operating Expenses on the basis of the rentable area of the
Premises divided by the rentable area of all office space leased or available
for lease in the Building.
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ARTICLE 25
Conveyance by Landlord and Liability
In case Landlord or any successor owner of the Complex or the Building shall
convey or otherwise dispose of any portion thereof in which the Premises are
located, to another Person (and nothing herein shall be construed to restrict or
prevent such conveyance or disposition), such other Person shall thereupon be
and become landlord hereunder and shall be deemed to have fully assumed and be
liable for all obligations of this Lease to be performed by Landlord which first
arise after the date of conveyance, including the return of any Security
Deposit, and Tenant shall attorn to such other Person, and Landlord or such
successor owner shall, from and after the date of conveyance, be free of all
liabilities and obligations hereunder not then incurred. The liability of
Landlord to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord's operation, management, leasing, repair,
renovation, alteration, or any other matter relating to the Complex or the
Premises, shall be limited to the interest of Landlord in the Building (and the
rental proceeds thereof). Tenant agrees to look solely to Landlord's interest
in the Building (and the rental proceeds thereof) for the recovery of any
judgment against Landlord, and Landlord shall not be personally liable for any
such judgment or deficiency after execution thereon. The limitations of
liability contained in this Article shall apply equally and inure to the benefit
of Landlord's present and future partners, beneficiaries, officers, directors,
trustees, shareholders, agents and employees, and their respective partners,
heirs, successors and assigns. Under no circumstances shall any present or
future general or limited partner of Landlord (if Landlord is a partnership), or
trustee or beneficiary (if Landlord or any partner of Landlord is a trust) have
any liability for the performance of Landlord's obligations under this Lease.
Notwithstanding the foregoing to the contrary, Landlord shall have personal
liability for insured claims, beyond Landlord's interest in the Building (and
rental proceeds thereof), to the extent of Landlord's liability insurance
coverage available for such claims.
ARTICLE 26
Indemnification
Except to the extent arising from the intentional or grossly negligent acts
of Landlord or Landlord's agents or employees, Tenant shall defend, indemnify
and hold harmless Landlord from and against any and all claims, demands,
liabilities, damages, judgments, orders, decrees, actions, proceedings, fines,
penalties, costs and expenses, including without limitation, court costs and
attorneys' fees arising from or relating to any loss of life, damage or injury
to person, property or business occurring in or from the Premises, or caused by
or in connection with any violation of this Lease or use of the Premises or
Complex by, or any other act or omission of, Tenant, any other occupant of the
Premises, or any of their respective agents, employees, contractors or guests.
Without limiting the generality of the foregoing, Tenant specifically
acknowledges that the indemnity undertaking herein shall apply to claims in
connection with or arising out of any "Tenant Work" as described in Article 8,
the installation, maintenance, use or removal of any "Lines" located in or
serving the Premises as described in Article 28, and the transportation, use,
storage, maintenance, generation, manufacturing, handling, disposal, release or
discharge of any "Hazardous Material" as described in Article 29 (whether or not
any of such matters shall have been theretofore approved by Landlord), except to
the extent that any of the same arises from the intentional or grossly negligent
acts of Landlord or Landlord's agents or employees. In case Landlord, its
agents or employees shall be made a party to any litigation commenced by or
against Tenant, then Tenant shall indemnify, defend and hold them harmless and
shall pay all costs, expenses, and reasonable attorneys' fees incurred or paid
by them in connection with such litigation. The obligations assumed herein
shall survive the expiration or sooner termination of this Lease.
ARTICLE 27
Safety and Security Devices, Services and Programs
The parties acknowledge that safety and security devices, services and
programs provided by Landlord, if any, while intended to deter crime and ensure
safety, may not in given instances prevent theft or other criminal acts, or
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ensure safety of persons or property. The risk that any safety or security
device, service or program may not be effective, or may malfunction, or be
circumvented by a criminal, is assumed by Tenant with respect to Tenant's
property and interests, and Tenant shall obtain insurance coverage to the extent
Tenant desires protection against such criminal acts and other losses, as
further described in Article 11. Tenant agrees to cooperate in any reasonable
safety or security program developed by Landlord or required by Law.
ARTICLE 28
Communications and Computer Lines
Tenant may install, maintain, replace, remove or use any communications or
computer wires, cables and related electronic signal transmission devices
(collectively the "Lines") at the Building in or serving the Premises, provided:
(a) Tenant shall obtain Landlord's prior written consent, use an experienced and
qualified contractor approved in writing by Landlord, and comply with all of the
other provisions of Article 8, (b) any such installation, maintenance,
replacement, removal or use shall comply with all Laws applicable thereto and
good work practices, and shall not interfere with the use of any then existing
Lines at the Complex, (c) an acceptable number of spare Lines and space for
additional Lines shall be maintained for existing and future occupants of the
Complex, as determined in Landlord's reasonable opinion, (d) if Tenant at any
time uses any equipment that may create an electromagnetic field exceeding the
normal insulation ratings of ordinary twisted pair riser cable or cause
radiation higher than normal background radiation, the Lines therefor (including
riser cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, (e) as a condition to permitting the
installation of new Lines, Landlord may require that Tenant remove existing
Lines located in or serving the Premises, (f) Tenant's rights shall be subject
to the rights of any regulated telephone company, and (g) Tenant shall pay all
costs in connection therewith. Landlord reserves the right to require that
Tenant remove any Lines located in or serving the Premises which are installed
in violation of these provisions, or which are at any time in violation of any
Laws or represent a dangerous or potentially dangerous condition (whether such
Lines were installed by Tenant or any other party), within three (3) days after
written notice.
Landlord may (but shall not have the obligation to): (i) install new Lines
at the Complex, (ii) create additional space for Lines at the Complex, and (iii)
reasonably direct, monitor and/or supervise the installation, maintenance,
replacement and removal of, the allocation and periodic re-allocation of
available space (if any) for, and the allocation of excess capacity (if any) on,
any Lines now or hereafter installed at the Complex by Landlord, Tenant or any
other party (but Landlord shall have no right to monitor or control the
information transmitted through such Lines). Such rights shall not be in
limitation of other rights that may be available to Landlord by Law or
otherwise. If Landlord exercises any such rights, Landlord may charge Tenant
for the costs attributable to Tenant, or may include those costs and all other
costs in Operating Expenses under Article 24 (including without limitation,
costs for acquiring and installing Lines and risers to accommodate new Lines and
spare Lines, any associated computerized system and software for maintaining
records of Line connections, and the fees of any consulting engineers and other
experts); provided, any capital expenditures included in Operating Expenses
hereunder shall be amortized (together with reasonable finance charges) over the
period of time prescribed by Article 25.
Notwithstanding anything to the contrary contained in Article 13, Landlord
reserves the right to require that Tenant remove any or all Lines installed by
or for Tenant within or serving the Premises upon termination of this Lease,
provided Landlord so notifies Tenant prior to or within thirty (30) days
following such termination. Any Lines not required to be removed pursuant to
this Article shall, at Landlord's option, become the property of Landlord
(without payment by Landlord). If Tenant fails to remove such Lines as required
by Landlord, or violates any other provision of this Article, Landlord may,
after twenty (20) days written notice to Tenant, remove such Lines or remedy
such other violation, at Tenant's expense (without limiting Landlord's other
remedies available under this Lease or applicable Law). Tenant shall not,
without the prior written consent of Landlord in each instance, grant to any
third party a security interest or lien in or on the Lines, and any such
security interest or lien granted without Landlord's written consent shall be
null and void. Except to the extent arising from the intentional or negligent
acts of Landlord or Landlord's agents or employees, Landlord shall have no
liability for damages arising from, and Landlord does not warrant that the
Tenant's use of any Lines will be free from the following (collectively called
"Line Problems"): (x) any eavesdropping or wire-tapping by unauthorized
parties, (y) any failure of any Lines to satisfy Tenant's requirements, or (z)
any shortages, failures,
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variations, interruptions, disconnections, loss or damage caused by the
installation, maintenance, replacement, use or removal of Lines by or for other
tenants or occupants at the Complex, by any failure of the environmental
conditions or the power supply for the Complex to conform to any requirements
for the Lines or any associated equipment, or any other problems associated with
any Lines by any other cause. Under no circumstances shall any Line Problems be
deemed an actual or constructive eviction of Tenant, render Landlord liable to
Tenant for abatement of Rent, or relieve Tenant from performance of Tenant's
obligations under this Lease. Landlord in no event shall be liable for damages
by reason of loss of profits, business interruption or other consequential
damage arising from any Line Problems.
ARTICLE 29
Hazardous Materials
Tenant shall not transport, use, store, maintain, generate, manufacture,
handle, dispose, release or discharge any "Hazardous Material" (as defined
below) upon or about the Complex, or permit Tenant's employees, agents,
contractors, and other occupants of the Premises to engage in such activities
upon or about the Complex. However, the foregoing provisions shall not prohibit
the transportation to and from, and use, storage, maintenance and handling
within, the Premises of substances customarily used in offices (or such other
business or activity expressly permitted to be undertaken in the Premises under
Article 6), provided: (a) such substances shall be used and maintained only in
such quantities as are reasonably necessary for such permitted use of the
Premises, strictly in accordance with applicable Law and the manufacturers'
instructions therefor, (b) such substances shall not be disposed of, released or
discharged on the Complex, and shall be transported to and from the Premises in
compliance with all applicable Laws, and as Landlord shall reasonably require,
(c) if any applicable Law or Landlord's trash removal contractor requires that
any such substances be disposed of separately from ordinary trash, Tenant shall
make arrangements at Tenant's expense for such disposal directly with a
qualified and licensed disposal company at a lawful disposal site (subject to
scheduling and approval by Landlord), and shall ensure that disposal occurs
frequently enough to prevent unnecessary storage of such substances in the
Premises, and (d) any remaining such substances shall be completely, properly
and lawfully removed from the Complex upon expiration or earlier termination of
this Lease.
Tenant shall promptly notify Landlord of: (i) any enforcement, cleanup or
other regulatory action taken or threatened by any governmental or regulatory
authority with respect to the presence of any Hazardous Material on the Premises
or the migration thereof from or to other property, (ii) any demands or claims
made or threatened by any party against Tenant or the Premises relating to any
loss or injury resulting from any Hazardous Material, (iii) any release,
discharge or non-routine, improper or unlawful disposal or transportation of any
Hazardous Material on or from the Premises, and (iv) any matters where Tenant is
required by Law to give a notice to any governmental or regulatory authority
respecting any Hazardous Material on the Premises. Landlord shall have the
right (but not the obligation) to join and participate as a party in any legal
proceedings or actions affecting the Premises initiated in connection with any
environmental, herein or safety Law. At such times as Landlord may reasonably
request, Tenant shall provide Landlord with a written list identifying any
Hazardous Material then used, stored, or maintained upon the Premises, the use
and approximate quantity of each such material, a copy of any material safety
data sheet ("MSDS") issued by the manufacturer therefor, written information
concerning the removal, transportation and disposal of the same, and such other
information as Landlord may reasonably require or as may be required by Law.
The term "Hazardous Material" for purposes hereof shall mean any chemical,
substance, material or waste or component thereof which is now or hereafter
listed, defined or regulated as a hazardous or toxic chemical, substance,
material or waste or component thereof by any federal, state or local governing
or regulatory body having jurisdiction, or which would trigger any employee or
community "right-to-know" requirements adopted by any such body, or for which
any such body has adopted any requirements for the preparation or distribution
of an MSDS.
If any Hazardous Material is released, discharged or disposed of by Tenant or
any other occupant of the Premises, or their employees, agents or contractors,
on or about the Complex in violation of the foregoing provisions, Tenant shall
immediately, properly and in compliance with applicable Laws clean up and remove
the Hazardous Material from the Complex and any other affected property and
clean or replace any affected personal property (whether or not owned by
Landlord), at Tenant's expense. Such clean up and removal work shall be subject
to Landlord's prior written approval (except in emergencies), and shall include,
without limitation, any testing, investigation, and the preparation and
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implementation of any remedial action plan required by any governmental body
having jurisdiction or reasonably required by Landlord. If Tenant shall fail to
comply with the provisions of this Article within five (5) days after written
notice by Landlord, or such shorter time as may be required by Law or in order
to minimize any hazard to Persons or property, Landlord may (but shall not be
obligated to) arrange for such compliance directly or as Tenant's agent through
contractors or other parties selected by Landlord, at Tenant's expense (without
limiting Landlord's other remedies under this Lease or applicable Law). If any
Hazardous Material is released, discharged or disposed of on or about the
Complex and such release, discharge or disposal is not caused by Tenant or other
occupants of the Premises, or their employees, agents or contractors, such
release, discharge or disposal shall be deemed casualty damage under Article 10
to the extent that the Premises or common areas of the Building serving the
Premises are affected thereby; in such case, Landlord and Tenant shall have the
obligations and rights respecting such casualty damage provided under
Article 10.
ARTICLE 30
Miscellaneous
(A) Each of the terms and provisions of this Lease shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, guardians, custodians, successors and assigns,
subject to the provisions of Article 20 respecting Transfers.
(B) Neither this Lease nor any memorandum of lease or short form lease
shall be recorded by Tenant.
(C) This Lease shall be construed in accordance with the Laws of the state
in which the Complex is located.
(D) All obligations or rights of either party arising during or
attributable to the period ending upon expiration or earlier termination of this
Lease shall survive such expiration or earlier termination.
(E) Landlord agrees that, if Tenant timely pays the Rent and performs the
terms and provisions hereunder, and subject to all other terms and provisions of
this Lease, Tenant shall hold and enjoy the Premises during the Term, free of
lawful claims by any Person acting by or through Landlord.
(F) This Lease does not grant any legal rights to "light and air" outside
the Premises nor any particular view or cityscape visible from the Premises.
(G) If the Commencement Date is delayed in accordance with Article 4 for
more than one year, Landlord may declare this Lease null and void, and if the
Commencement Date is so delayed for more than seven years, this Lease shall
thereupon become null and void without further action by either party.
(H) Subject to Article 20 of this Lease, each provision of this Lease shall
extend to, bind and inure to the benefit of Landlord and Tenant and their
respective legal representatives, successors and assigns; and all references
herein to Landlord and Tenant shall be deemed to include all such parties. The
term "Landlord" as used in this Lease, so far as covenants or obligations on the
part of Landlord are concerned, shall be limited to mean only the owner or
owners of the Building or the Complex, as the case may be, at the time in
question.
(I) Time is of the essence of this Lease and each and all of its provisions.
(J) The invalidity or unenforceability of any provision of this Lease shall
not affect or impair any other provisions.
(K) Tenant shall pay to Landlord all costs and expenses, including reasonable
attorneys' fees, incurred by Landlord in enforcing this Lease or incurred by
Landlord as a result of any litigation to which Landlord becomes a party as a
result of this Lease.
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(L) In no event shall Landlord be liable to Tenant if Landlord is unable to
deliver possession of the Premises to Tenant on the Commencement Date for causes
outside Landlord's reasonable control. If Landlord is unable to deliver
possession of the Premises to Tenant by the Commencement Date, the Commencement
Date shall be deferred until Landlord can deliver possession to Tenant. If the
Commencement Date is so delayed and as a result would occur on a day other than
the first day of the month; (i) the Commencement Date shall be further delayed
until the first day of the following month, (ii) Tenant shall be allowed to take
occupancy of the Premises prior to the Commencement Date, subject to all of the
terms and conditions of this Lease and shall pay the pro-rata Rent for such
partial month, and (iii) the Expiration Date shall be extended so that the Term
will continue for the full period contemplated in the Schedule.
(M) If Tenant is comprised of more than one party, each such party shall be
jointly and severally liable for Tenant's obligations under this Lease.
ARTICLE 31
Offer
The submission and negotiation of this Lease shall not be deemed an offer to
enter the same by Landlord, but the solicitation of such an offer by Tenant.
Tenant agrees that its execution of this Lease constitutes a firm offer to enter
the same which may not be withdrawn for a period of thirty (30) days after
delivery to Landlord (or such other period as may be expressly provided in any
other agreement signed by the parties). During such period and in reliance on
the foregoing, Landlord may, at Landlord's option (and shall, if required by
applicable Law), deposit any security deposit and Rent, and proceed with any
plans, specifications, alterations or improvements, and permit Tenant to enter
the Premises, but such acts shall not be deemed an acceptance of Tenant's offer
to enter this Lease, and such acceptance shall be evidenced only by Landlord
signing and delivering this Lease to Tenant.
ARTICLE 32
Notices
Except as expressly provided to the contrary in this Lease, every notice or
other communication to be given by either party to the other with respect hereto
or to the Premises or Complex, shall be in writing and shall not be effective
for any purpose unless the same shall be served personally or by national air
courier service, or United States certified mail, return receipt requested,
postage prepaid, addressed, if to Tenant, at the address first set forth in the
Lease, and if to Landlord, at the 2000 Town Center, Suite 2100, Southfield, MI
48075, Attention: General Manager with a copy to BRE/Southfield L.L.C., c/o The
Blackstone Group, 345 Park Avenue, New York, New York 10154, Attention: Asset
Manager - Town Center, or such other address or addresses as Tenant or Landlord
may from time to time designate by notice given as above provided. Every notice
or other communication hereunder shall be deemed to have been given as of the
third business day following the date of such mailing (or as of any earlier date
evidenced by a receipt from such national air courier service or the United
States Postal Service) or immediately if personally delivered. Notices not sent
in accordance with the foregoing shall be of no force or effect until received
by the foregoing parties at such addresses required herein.
ARTICLE 33
Real Estate Brokers
Tenant represents that Tenant has dealt only with Pankhurst Properties, Inc.
(whose commission, if any, shall be paid by Landlord pursuant to separate
agreement) as brokers, agents or finder in connection with this Lease and agrees
to indemnify and hold Landlord harmless from all damages, judgments, liabilities
and expenses (including reasonable attorneys' fees) arising from any claims or
demands of any other broker, agent or finder with whom Tenant has dealt for any
commission or fee alleged to be due in connection with its participation in the
procurement of Tenant or the negotiation with Tenant of this Lease.
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ARTICLE 34
Security Deposit and Letter of Credit
(A) SECURITY DEPOSIT. Tenant shall deposit with Landlord an amount equal to
two months' gross rent, which amount is calculated as $35,993.00 ("Security
Deposit"), upon Tenant's execution and submission of this Lease. The Security
Deposit shall serve as security for the prompt, full and faithful performance by
Tenant of the terms and provisions of this Lease. In the event that Tenant is
in Default hereunder and fails to cure within any applicable time permitted
under this Lease, or in the event that Tenant owes any amounts to Landlord upon
the expiration of this Lease, Landlord may use or apply the whole or any part of
the Security Deposit for the payment of Tenant's obligations hereunder. The use
or application of the Security Deposit or any portion thereof shall not prevent
Landlord from exercising any other right or remedy provided hereunder or under
any Law and shall not be construed as liquidated damages. In the event the
Security Deposit is reduced by such use or application, Tenant shall deposit
with Landlord within ten (10) days after written notice, an amount sufficient to
restore the full amount of the Security Deposit. Landlord shall not be required
to keep the Security Deposit separate from Landlord's general funds or pay
interest on the Security Deposit. In no event shall the Security Deposit be
considered an advanced payment of Rent, and in no event shall Tenant be entitled
to use the Security Deposit for the payment of Rent. Any remaining portion of
the Security Deposit shall be returned to Tenant within sixty (60) days after
Tenant has vacated the Premises in accordance with Article 13. If the Premises
shall be expanded at any time, or if the Term shall be extended at an increased
rate of Rent, the Security Deposit shall thereupon be proportionately increased.
Landlord shall have the right to transfer the Security Deposit to any purchaser
of the Building. Upon such transfer, Tenant shall look solely to such purchaser
for return of the Security Deposit; and Landlord shall be relieved of any
liability with respect to the Security Deposit.
(B) LETTER OF CREDIT. Tenant shall deposit with Landlord, upon Tenant's
execution and submission of this Lease, a letter of credit (the "Letter of
Credit") in the amount of One Hundred Sixty Five Thousand and 00/100 Dollars
($165,000.00) as security for the prompt, full and faithful performance by
Tenant of the terms and provisions of this Lease, which Letter of Credit shall
be subject to the following provisions:
(i) Form and Issuer. The Letter of Credit shall be an unconditional,
stand-by, irrevocable Letter of Credit in favor of Landlord in substantially
the form attached hereto as Exhibit C, issued by a federally insured national
banking association located in the Detroit metropolitan area with a net worth
of at least $100,000,000.00 and which is acceptable to Landlord.
(ii) Expiration; Extension or Replacement. The Letter of Credit shall
be renewed annually through said Expiration Date, in which event Tenant shall
submit to Landlord original amendments extending the Letter of Credit
expiration date (or replacement Letters of Credit with extended expiration
dates) on an annual basis no later than the date that is thirty (30) days
prior to the expiration date of the Letter of Credit then in effect. Failure
to so extend the expiration date of the Letter of Credit through said
expiration date in the foregoing manner shall constitute a violation of this
Lease, entitling Landlord, in addition to all other remedies to draw down the
Letter of Credit without notice to Tenant and to hold or apply the proceeds
thereof as described herein. Notwithstanding the foregoing, Tenant shall not
be required to renew the Letter of Credit after Tenant's first year of
tenancy or any year thereafter if Tenant's Current Ratio (defined as Current
Assets divided by Current Liabilities) at the time the Letter of Credit would
otherwise be required under this paragraph to be renewed exceeds 4 (as
calculated by Landlord in its sole and reasonable discretion) and provided
that Tenant is not then in default under this Lease and has not been
delinquent in the payment of any amounts owed under this Lease.
(iii) Draws. If Tenant is in Default under this Lease, Landlord may,
but shall not be obligated to, draw down on all or a portion of the Letter of
Credit without notice to Tenant and apply the proceeds to the payment of any
sum owing or any other sum which Landlord may be required or deems necessary
to spend or incur by reason of such violation. If Landlord draws upon the
Letter of Credit and any portion of the proceeds of such draw is not required
for such purposes, Landlord shall treat such unused proceeds as a Security
Deposit under the Lease. Tenant shall, upon demand, deposit with Landlord in
cash an amount equal to any portion of the Letter of Credit which may be
applied by Landlord to the cure of any violation by Tenant as described
hereunder. The use or application of the Letter of Credit or any portion
thereof shall not prevent Landlord from exercising any other right or remedy
provided hereunder or under any applicable law and shall not be construed as
liquidated damages.
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ARTICLE 35
Option to Extend
Tenant is hereby granted an option to extend the Term for a single additional
period of five (5) consecutive Lease Years ("Extension Period"), on the same
terms and conditions in effect under the Lease immediately prior to the
Extension Period, except that Tenant shall have no further right to extend, and
monthly Base Rent for each Lease Year during the Extension Period shall be at
then-market rates, as determined solely by Landlord in its reasonable judgment.
Tenant's option to extend the term of the Lease shall be exercised only by
giving Landlord irrevocable and unconditional written notice thereof no later
than twelve (12) months prior to the commencement of the Extension Period. Said
exercise shall, at Landlord's election, be null and void if Tenant is in default
under the Lease at the date of said notice or at any time thereafter and prior
to commencement of the Extension Period. The term "Lease Year" herein means
each twelve (12) month annual period, commencing with the first day of the
Extension Period, without regard to calendar years.
If Tenant shall fail to exercise the option herein provided, said option
shall terminate, and shall be null and void and of no further force and effect.
Tenant's exercise of said option shall not operate to cure any default by Tenant
of any of the terms or provisions in the Lease, nor to extinguish or impair any
rights or remedies of Landlord arising by virtue of such default. If the Lease
or Tenant's right to possession of the Premises shall terminate in any manner
whatsoever before Tenant shall exercise the option herein provided, or if Tenant
shall have subleased or assigned all or any portion of the Premises, then
immediately upon such termination, sublease or assignment, the option herein
granted to extend the Term, shall simultaneously terminate and become null and
void. Such option is personal to Tenant. Under no circumstances whatsoever
shall the assignee under a complete or partial assignment of the Lease, or a
subtenant under a sublease of the Premises, have any right to exercise the
option to extend granted herein. Time is of the essence of this provision.
ARTICLE 36
Exculpation
It is expressly understood and agreed by and between the parties hereto,
anything herein to the contrary notwithstanding, that each and all of the
representations, warranties, covenants, undertakings, and agreements herein made
on the part of any Landlord while in form purporting to be the representations,
warranties, covenants, undertakings, and agreements of such Landlord are
nevertheless each and every one of them made and intended, not as personal
representations, warranties, covenants, undertakings, and agreements by such
Landlord or for the purpose or with the intention of binding such Landlord
personally, but are made and intended for the purpose only of subjecting such
Landlord's interest in the Building to the terms of the Lease and for no other
purpose whatsoever. The liability of Landlord to Tenant for any default by
Landlord under the Lease or arising in connection herewith or with Landlord's
operation, management, leasing, repair, renovation, alteration, or any other
matter relating to the Building or the Premises, shall be limited to the
interest of Landlord in the Building (and the rental proceeds thereof). Tenant
agrees to look solely to Landlord's interest in the Building (and the rental
proceeds thereof) for the recovery of any judgment against Landlord, and
Landlord shall not be personally liable for any such judgment or deficiency
after execution thereon. The limitations of liability contained in this
provision shall apply equally and inure to the benefit of Landlord's present and
future partners, beneficiaries, officers, directors, trustees, shareholders,
agents and employees, and their respective partners, heirs, successors and
assigns. Under no circumstances shall any present or future general or limited
partner of Landlord (if Landlord is a partnership), or trustee or beneficiary
(if Landlord or any partner of Landlord is a trust) have any liability for the
performance of Landlord's obligations under the Lease. Notwithstanding the
foregoing to the contrary, Landlord shall have personal liability for insured
claims, beyond Landlord's interest in the Building (and rental proceeds
thereof), to the extent of Landlord's liability insurance coverage available for
such claims.
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ARTICLE 37
Entire Agreement
This Lease, together with Rider One and Exhibits A, B and C (WHICH
COLLECTIVELY ARE HEREBY INCORPORATED WHERE REFERRED TO HEREIN AND MADE A PART
HEREOF AS THOUGH FULLY SET FORTH), contains all the terms and provisions between
Landlord and Tenant relative to the matters set forth herein and no prior or
contemporaneous agreement or understanding pertaining to the same shall be of
any force or effect, except any such contemporaneous agreement specifically
referring to and modifying this Lease, signed by both parties. Without
limitation as to the generality of the foregoing, Tenant hereby acknowledges and
agrees that Landlord's leasing agents and field personnel are only authorized to
show the Premises and negotiate terms and conditions for leases subject to
Landlord's final approval, and are not authorized to make any agreements,
representations, understandings or obligations, binding upon Landlord,
respecting the condition of the Premises, the Complex or the Building,
suitability of the same for Tenant's business, or any other matter, and no such
agreements, representations, understandings or obligations not expressly
contained herein or in such contemporaneous agreement shall be of any force or
effect. Neither this Lease, nor any Riders or Exhibits referred to above may be
modified, except in writing signed by both parties.
IN WITNESS WHEREOF, the Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
LANDLORD: BRE/SOUTHFIELD L.L.C.
By: /S/ MARSHALL K. FINDLEY
----------------------------
Its: VICE PRESIDENT
----------------------
TENANT: C-Bridge Internet Solutions, Inc.
By: /S/ DONALD W. AMAYA
---------------------------
Its: EXECUTIVE VICE PRESIDENT
-------------------------
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RIDER
RULES
(1) On Saturdays, Sundays and Holidays, and on other days between the hours
of 6:00 P.M. and 7:00 A.M. the following day, or such other hours as Landlord
shall determine from time to time, access to the Building and the Complex and/or
to the passageways, entrances, exits, shipping areas, halls, corridors,
elevators or stairways and other areas in the Complex may be restricted and
access gained by use of a key to the outside doors of the Building, or pursuant
to such security procedures Landlord may from time to time impose. All such
areas, and all roofs, are not for use of the general public and Landlord shall
in all cases retain the right to control and prevent access thereto by all
persons whose presence in the judgment of Landlord shall be prejudicial to the
safety, character, reputation and interests of the Complex and its tenants
provided, however, that nothing herein contained shall be construed to prevent
such access to persons with whom Tenant deals in the normal course of Tenant's
business unless such persons are engaged in activities which are illegal or
violate these Rules. No Tenant and no employee or invitee of Tenant shall enter
into areas reserved for the exclusive use of Landlord, its employees or
invitees. Tenant shall keep doors to corridors and lobbies closed except when
persons are entering or leaving.
(2) Tenant shall not paint, display, inscribe, maintain or affix any sign,
placard, picture, advertisement, name, notice, lettering or direction on any
part of the outside or inside of the Building, or on any part of the inside of
the Premises which can be seen from the outside of the Premises, without the
prior consent of Landlord, and then only such name or names or matter and in
such color, size, style, character and material as may be first approved by
Landlord in writing. Landlord shall prescribe the suite number and
identification sign for the Premises (which shall be prepared and installed by
Landlord at Tenant's expense). Landlord reserves the right to remove at
Tenant's expense all matter not so installed or approved without notice to
Tenant.
(3) Tenant shall not in any manner use the name of the Complex for any
purpose other than that of the business address of the Tenant, or use any
picture or likeness of the Complex or any part thereof, in any letterheads,
envelopes, circulars, notices, advertisements, containers or wrapping material
without Landlord's express consent in writing.
(4) Tenant shall not place anything or allow anything to be placed in the
Premises near the glass of any door, partition, wall or window which may be
unsightly from outside the Premises, and Tenant shall not place or permit to be
placed any article of any kind on any window ledge or on exterior walls.
Blinds, shades, awnings or other forms of inside or outside window ventilators
or similar devices, shall not be placed in or about the outside windows in the
Premises except to the extent, if any, that the character, shape, color,
material and make thereof is first approved by the Landlord.
(5) Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Complex and the Building only at times and in
the manner designated by Landlord, and always at the Tenant's sole
responsibility and risk. Landlord may impose reasonable charges for use of
freight elevators after or before normal business hours. All damage done to the
Building by moving or maintaining such furniture, freight or articles shall be
repaired by Landlord at Tenant's expense. Landlord may inspect items brought
into the Building Premises with respect to weight or dangerous nature. Landlord
may require that all furniture, equipment, cartons and similar articles removed
from the Premises or the Building be listed and a removal permit therefor first
be obtained from Landlord. Tenant shall not take or permit to be taken in or
out of other entrances or elevators of the Building, any item normally taken, or
which Landlord otherwise reasonably requires to be taken, in or out through
service doors or on freight elevators. Tenant shall not allow anything to
remain in or obstruct in any way, any lobby, corridor, sidewalk, passageway,
entrance, exit, hall, stairway, shipping area, or other such area. Tenant shall
move all supplies, furniture and equipment as soon as received directly to the
Premises, and shall move all such items and waste (other than waste customarily
removed by Complex employees) that are at any time being taken from the Premises
directly to the areas designated for disposal. Any hand-carts used at the
Building shall have rubber wheels.
(6) Tenant shall not overload any floor or part thereof in the Premises, or
the Building, including any public corridors or elevators therein bringing in or
removing any large or heavy articles, and Landlord may direct and control the
location of sofas and all other heavy articles and require supplementary
supports at Tenant's expense of such material and dimensions as Landlord may
deem necessary to properly distribute the weight.
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(7) Tenant shall not attach or permit to be attached additional locks or
similar devices to any door or window, change existing locks or the mechanism
thereof, or make or permit to be made any keys for any door other than those
provided by Landlord. If more than two keys for one lock are desired, Landlord
will provide them upon payment therefor by Tenant. Tenant, upon termination of
its tenancy, shall deliver to the Landlord all keys of offices, rooms and toilet
rooms which have been furnished Tenant or which the Tenant shall have had made,
and in the event of loss of any keys so furnished shall pay Landlord therefor.
(8) If Tenant desires signal, communication, alarm or other utility or
similar service connections installed or changed, Tenant shall not install or
change the same without the prior approval of Landlord, and then only under
Landlord's direction at Tenant's expense. Tenant shall not install in the
Premises any equipment which requires more electric current than Landlord is
required to provide under this Lease, without Landlord's prior approval, and
Tenant shall ascertain from Landlord the maximum amount of load or demand for or
use of electrical current which can safely be permitted in the Premises, taking
into account the capacity of electric wiring in the Building and the Premises
and the needs of tenants of the Building, and shall not in any event connect a
greater load than such safe capacity.
(9) Tenant shall not obtain for use upon the Premises ice, drinking water,
towel, janitor and other similar services, except from Persons approved by the
Landlord. Any Person engaged by Tenant to provide janitor or other services
shall be subject to direction by the manager or security personnel of the
Complex.
(10) The toilet rooms, urinals, wash bowls and other such apparatus shall not
be used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and the expense
of any breakage, stoppage or damage resulting from the violation of this Rule
shall be borne by the Tenant who, or whose employees or invitees shall have
caused it.
(11) The janitorial closets, utility closets, telephone closets, broom
closets, electrical closets, storage closets, and other such closets, rooms and
areas shall be used only for the purposes and in the manner designated by
Landlord, and may not be used by tenants, or their contractors, agents,
employees, or other parties without Landlord's prior written consent.
(12) Landlord reserves the right to exclude or expel from the Complex any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules. Tenant shall not at any time manufacture, sell, use or give away,
any spirituous, fermented, intoxicating or alcoholic liquors on the Premises,
nor permit any of the same to occur (except in connection with occasional social
or business events conducted in the Premises which do not violate any Laws nor
bother or annoy any other tenants). Tenant shall not at any time sell, purchase
or give away, food in any form by or to any of Tenant's agents or employees or
any other parties on the Premises, nor permit any of the same to occur (other
than in lunch rooms or kitchens for employees as may be permitted or installed
by Landlord, which does not violate any Laws or bother or annoy any other
tenant).
(13) Tenant shall not make any room-to-room canvass to solicit business or
information or to distribute any article or material to or from other tenants or
occupants of the Complex and shall not exhibit, sell or offer to sell, use, rent
or exchange any products or services in or from the Premises unless ordinarily
embraced within the Tenant's use of the Premises specified in the Lease.
(14) Tenant shall not waste electricity, water, heat or air conditioning or
other utilities or services, and agrees to cooperate fully with Landlord to
assure the most effective and energy efficient operation of the Building and
shall not allow the adjustment (except by Landlord's authorized Complex
personnel) of any controls. Tenant shall keep corridor doors closed and shall
not open any windows, except that if the air circulation shall not be in
operation, windows which are openable may be opened with Landlord's consent. As
a condition to claiming any deficiency in the air-conditioning or ventilation
services provided by Landlord, Tenant shall close any blinds or drapes in the
Premises to prevent or minimize direct sunlight.
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(15) Tenant shall conduct no auction, fire or "going out of business sale" or
bankruptcy sale in or from the Premises, and such prohibition shall apply to
Tenant's creditors.
(16) Tenant shall cooperate and comply with any reasonable safety or security
programs, including fire drills and air raid drills, and the appointment of
"fire wardens" developed by Landlord for the Building or the Complex, or
required by Law. Before leaving the Premises unattended, Tenant shall close and
securely lock all doors or other means of entry to the Premises and shut off all
lights and water faucets in the Premises (except heat to the extent necessary to
prevent the freezing or bursting of pipes).
(17) Tenant will comply with all municipal, county, state, federal or other
government laws, statutes, codes, regulations and other requirements, including
without limitation, environmental, health, safety and police requirements and
regulations respecting the Premises, now or hereinafter in force, at its sole
cost, and will not use the Premises for any immoral purposes.
(18) Tenant shall not (i) carry on any business, activity or service except
those ordinarily embraced within the permitted use of the Premises specified in
the Lease and more particularly, but without limiting the generality of the
foregoing, shall not (ii) install or operate any internal combustion engine,
boiler, machinery, refrigerating, heating or air conditioning equipment in or
about the Premises, (iii) use the Premises for housing, lodging or sleeping
purposes or for the washing of clothes, (iv) place any radio or television
antennae other than inside of the Premises, (v) operate or permit to be operated
any musical or sound producing instrument or device which may be heard outside
the Premises, (vi) use any source of power other than electricity, (vii) operate
any electrical or other device from which may emanate electrical or other waves
which may interfere with or impair radio, television, microwave, or other
broadcasting or reception from or in the Building or elsewhere, (viii) bring or
permit any bicycle or other vehicle, or dog (except in the company of a blind
person or except where specifically permitted) or other animal or bird in the
Building, (ix) make or permit objectionable noise or odor to emanate from the
Premises, (x) do anything in or about the Premises tending to create or maintain
a nuisance or do any act tending to injure the reputation of the Complex, (xi)
throw or permit to be thrown or dropped any article from any window or other
opening in the Building, (xii) use or permit upon the Premises anything that
will invalidate or increase the rate of insurance on any policies of insurance
now or hereafter carried on the Complex or the Building or violate the
certificates of occupancy issued for the premises or the Building, (xiii) use
the Premises for any purpose, or permit upon the Premises anything, that may be
dangerous to persons or property (including but not limited to flammable oils,
fluids, paints, chemicals, firearms or any explosive articles or materials) nor
(xiv) do or permit anything to be done upon the Premises in any way tending to
disturb any other tenant at the Complex or the occupants of neighboring
property.
(19) If the Building or Complex shall now or hereafter contain a building
garage, parking structure or other parking area or facility, the following Rules
shall apply in such areas or facilities:
(i) Parking shall be available in areas designated generally for tenant
parking, for such daily or monthly charges as Landlord may establish from time
to time. In all cases, parking for Tenant and its employees and visitors shall
be on a "first come, first served," unassigned basis, with Landlord and other
tenants at the Building or Complex, as the case may be, and their employees and
visitors, and other Persons (as defined in Article 25 of the Lease) to whom
Landlord shall grant the right or who shall otherwise have the right to use the
same, all subject to these Rules, as the same may be amended or supplemented,
and applied on a non-discriminatory basis, all as further described in Article 6
of the Lease. Notwithstanding the foregoing to the contrary, Landlord reserves
the right to assign specific spaces, and to reserve spaces for visitors, small
cars, handicapped individuals, and other tenant's, visitors of tenants or other
Persons, and Tenant and its employees and visitors shall not park in any such
assigned or reserved spaces. Landlord may restrict or prohibit full size vans
and other large vehicles.
(ii) In case of any violation of these provisions, Landlord may refuse to
permit the violator to park, and may remove the vehicle owned or driven by the
violator from the Complex without liability whatsoever, at such violator's risk
and expense. Landlord reserves the right to close all or a portion of the
parking areas or facilities in order to make repairs or perform maintenance
services, or to alter, modify, re-stripe or renovate the same, or if required by
casualty, strike, condemnation, act of God, Law or governmental requirement, or
any other reason beyond Landlord's reasonable control. In the event access is
denied for any reason, any monthly parking charges shall be abated to the extent
access is denied, as Tenant's sole recourse. Tenant acknowledges that such
parking areas or facilities may be operated by an independent contractor not
affiliated with Landlord, and Tenant acknowledges that in such event, Landlord
shall have no liability for claims arising through acts or omissions of such
independent contractor, if such contractor is reputable.
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(iii0) Hours shall be 7 A.M. to 6 P.M., Monday through Friday, and 8:00 A.M.
to 2:00 P.M. on Saturdays, or such other hours as may be reasonably established
by Landlord or its parking operator from time to time; cars must be parked
entirely within the stall lines, and only small cars may be parked in areas
reserved for small cars; all directional signs and arrows must be observed; the
speed limit shall be 5 miles per hour; spaces reserved for handicapped parking
must be used only by vehicles properly designated; every parker is required to
park and lock his own car; washing, waxing, cleaning or servicing of any vehicle
is prohibited; parking spaces may be used only for parking automobiles; parking
is prohibited in areas: (a) not striped or designated for parking, (b) aisles,
(c) where "no parking" signs are posted, (d) on ramps, and (e) loading areas and
other specially designated areas. Delivery trucks and vehicles shall use only
those areas designated therefor.
(20) Tenant shall note use any draperies or other window coverings instead of
or in addition to the Building standard window coverings designated and approved
by Landlord for exclusive use throughout the Building.
(21) Landlord may require that all persons who enter or leave the Building
identify themselves to watchmen, by registration or otherwise. Landlord,
however, shall have no responsibility or liability for any theft, robbery or
other crime in the Building or in the Complex. Tenant shall assume full
responsibility for protecting the Premises, including keeping all doors to the
Premises locked after the close of business.
(22) Tenant shall not use the freight or passenger elevators, loading docks
or receiving areas of the Building or the Complex except in accordance with
regulations for their use established by Landlord.
(23) In no event shall Tenant allow its employees to use the public areas of
the Building or the Complex as smoking areas. Washrooms are considered to be
public areas.
(24) Tenant shall not install carpet padding or carpet by means of a mastic,
glue or cement without the consent of Landlord.
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EXHIBIT A
(Floor plan(s) showing Premises cross-hatched)
Non-detailed floor plan drawing omitted.
<PAGE>
EXHIBIT B
WORKLETTER AGREEMENT
THIS WORKLETTER AGREEMENT ("Workletter") is executed simultaneously with that
certain Lease between C-BRIDGE INTERNET SOLUTIONS, INC., as Tenant, and
BRE/SOUTHFIELD L.L.C., as Landlord, relating to Premises at the building
commonly known as 3000 Town Center, Southfield, Michigan, which Premises are
more fully identified in the Lease. Capitalized terms used herein, unless
otherwise defined in this Workletter, shall have the respective meanings
assigned to them in the Lease.
For and in consideration of the agreement to lease the Premises and the
mutual covenants contained herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. WORK. (a) Landlord shall cause to be performed the Work (as defined
below) in the Premises. Landlord shall proceed diligently to cause the Work to
be substantially completed at or before the Commencement Date, subject to
"Tenant Delay" and "Force Majeure Delay" (as such terms are described in
Paragraph 2 hereof). Except for the Tenant Improvement Allowance (as defined
below) to be provided by Landlord hereunder, Tenant shall be responsible to pay
for all costs (sometimes referred to herein as the "Cost of the Work") incurred
by Landlord in connection with the Work, including construction management fees.
Tenant shall pay such amount within five (5) days after demand therefor. If
such amount is not paid when due, it shall bear interest at the default rate
provided in the Lease.
(b) The Cost of the Work may include, without limitation, (1) costs of
labor, hardware, equipment and materials, contractors' charges for overhead and
fees, and so-called "general conditions" (including rubbish removal, utilities,
freight elevators, hoisting, field supervision, building permits, occupancy
certificates, inspection fees, utility connections, bonds, insurance, sales
taxes, and the like), (2) the Plans, including, without limitation, all
revisions thereto, and engineering reports, or other studies, reports or tests,
air balancing or related work in connection therewith, and (3) Landlord's costs
and administrative fee described below. "Work" herein means: (i) the
improvements and items of work shown on the final approved Plans (including
Change Orders), and (ii) any demolition, preparation or other work required in
connection therewith, including without limitation, structural or mechanical
work, additional HVAC equipment or sprinkler heads, or modifications to any
building mechanical, electrical, plumbing or other systems and equipment or
relocation of any existing sprinkler heads, either within or outside the
Premises required as a result of the layout, design, or construction of the Work
or in order to extend any mechanical distribution, fire protection or other
systems from existing points of distribution or connection, or in order to
obtain building permits for the work to be performed within the Premises (unless
Landlord requires that the Plans be revised to eliminate the necessity for such
work). The Cost of the Work shall include a Landlord administrative fee equal
to five percent (5%) of all other amounts included in the Cost of the Work.
(c) When and as required by applicable building codes (the "Codes"),
Landlord shall pay for the cost of replacing all or any portion of the ceiling
of the Premises not in compliance with the Codes with standard ceiling grid and
tile which meet minimum requirements of the Codes. Tenant shall have the right
to request that, in replacing the ceiling, Landlord use materials selected by
Tenant provided that said materials are in compliance with the Codes and that
Tenant shall pay all costs incurred by Landlord in complying with Tenant's
request in excess of the costs Landlord would have incurred in replacing the
ceiling with building standard, 2' x 4', Code-compliant materials.
(d) In connection with the Premises, Landlord shall provide Tenant with
an allowance ("Tenant Improvement Allowance") equal to ONE HUNDRED FIFTEEN
THOUSAND AND NO/100 DOLLARS ($115,000.00) to be applied toward (1) costs of
permanent leasehold improvements included in the Work, including labor,
hardware, equipment and materials, contractors' charges for overhead and fees,
and general conditions, (2) costs of the space plans and construction drawings
(the "Plans"), limited to five percent (5%) of the Tenant Improvement Allowance
(and which shall exclude planning for furniture, fixtures and equipment) and (3)
Landlord's costs and administrative fee, as described above. Except as
otherwise permitted hereunder, the Tenant Improvement Allowance is applicable
only in connection with the foregoing costs, and shall not be available for any
improvements or alterations made subsequent to substantial completion of the
Work. If all or any portion of the Tenant Improvement Allowance shall not be so
used, Landlord shall be entitled to the savings and Tenant shall receive no
credit therefor. If Landlord terminates the Lease or Tenant's right to
possession based on a default by Tenant, Tenant shall repay Landlord on demand
for the amount of the Tenant Improvement Allowance provided hereunder, as
additional damages, without in any way limiting Landlord's other rights or
remedies.
<PAGE>
(e) Any portion of the Cost of the Work exceeding the Tenant
Improvement Allowance is referred to herein as "Tenant's Cost." Landlord may at
any time estimate Tenant's Cost in advance, or revise any such estimate, in
which case, Tenant shall deposit the estimated amount (or the increase reflected
in any revised estimate) with Landlord within three (3) days after Landlord so
requests. Landlord shall have no obligation to proceed with the Work (or to
proceed to seek permits or proceed with any demolition or other preliminary
Work) until Landlord shall have received such deposit from Tenant. If the Work
involves progress payments, Landlord shall apply the amounts deposited by Tenant
first. If, after final completion and payment for the Work, the actual amount
of Tenant's Cost exceeds the estimated amount, Tenant shall pay the difference
to Landlord within three (3) days after Landlord so requests. If such estimated
amount exceeds the actual amount of Tenant's Cost, Landlord shall provide a
refund of the difference. Tenant's Cost shall be deemed "Rent" under the Lease
(and all remedies for the nonpayment of Rent shall be available to Landlord
therefor), and Tenant's obligations under the Lease to keep the Premises and
Complex free of liens shall apply to any liens arising from any failure to pay
Tenant's Cost hereunder. Landlord may request Tenant's written approval of any
cost estimate hereunder.
(f) In the event the Cost of the Work exceeds the Tenant Improvement
Allowance, Landlord hereby agrees to advance to Tenant, at Tenant's request, an
additional amount (the "Additional Allowance") not to exceed Thirty Five
Thousand and No/100 Dollars ($35,000.00) on the same terms as the Tenant
Improvement Allowance; provided, however, that Tenant shall repay the Additional
Allowance to Landlord, as additional Monthly Installments of Base Rent,
amortizing with interest at the rate of twelve percent (12%) per annum
compounded monthly, from the date or dates of disbursement by Landlord (or, at
Landlord's option, the date of the last disbursement or from the first day of
the next succeeding calendar month) through the Expiration Date of the Term.
Tenant shall promptly execute and deliver such amendment to the Lease as
Landlord shall prepare to confirm such repayment in the form of a revision to
the schedule of Base Rent set forth in the Lease. Tenant shall also submit to
Landlord an original amendment increasing the amount of the Letter of Credit
then in effect by the amount of the Additional Allowance or deposit with
Landlord an additional letter of credit in the amount of the Additional
Allowance and in accordance with all terms and provisions of Article 34(B) of
the Lease. In the event all or any portion of the Additional Allowance has not
been drawn by June 30, 2000, Landlord shall be entitled to the savings and
Tenant shall receive no credit therefor.
2. DELAYS IN WORK. Notwithstanding the date provided in the Lease for the
commencement of the term thereof, Tenant's obligation to pay Rent thereunder
shall not commence until Landlord shall have substantially completed all Work to
be performed by Landlord as set forth in Paragraph l hereof; provided, however,
if Landlord shall be delayed in substantially completing said Work for any
reason set forth in the following subparagraphs (a) through (f) ("Tenant Delay")
or for any reason set forth in the following subparagraph (g) ("Force Majeure
Delay"), then neither the Commencement Date nor the payment of Rent thereunder
shall be affected or deferred on account of such delay:
(a) Tenant's failure to furnish any information required for the
completion of Landlord's Work;
(b) Tenant's request for or use of unique materials, finishes or
installations or construction procedures which are substantially different from
that which is standard or customary for the Building or from that shown in any
space plan which Tenant has heretofore furnished Landlord, or resulting in the
Work required by the Plans (as same may be revised from time to time) taking
longer to complete under standard construction procedures (e.g., without use of
overtime or additional shifts and without necessitating other measures to
expedite long lead time items) than originally projected by Landlord at the
execution of this Lease (i.e., when Landlord developed its schedule for
construction of the Work without the benefit of the Plans);
(c) Tenant's changes in the Work or the Plans (notwithstanding
Landlord's approval of any such changes);
(d) Landlord's determination that base building modifications are
necessary in order to accommodate the Work;
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(e) The entry by Tenant or Tenant's Contractors (as defined in Paragraph
4 below) in or about the Premises or Building;
(f) any other act, omission or delay by Tenant, its agents or
contractors or persons employed by any of such persons delaying substantial
completion of the Work; or
(g) any other cause beyond the reasonable control of Landlord,
including, without limitation, strikes, lockouts, labor trouble, disorder,
inability to procure materials, failure of power, restrictive governmental laws
and regulations, riots, insurrections, war, fuel shortages, accidents,
casualties and acts of God.
3. COMPLETION -- PUNCH LIST.
(a) When Landlord's construction manager considers the Work to be
substantially complete or about to be substantially completed, Landlord shall
notify Tenant as to the date or anticipated date of substantial completion and
of a reasonable time and date for inspection of the Work. If such time and date
for inspection are not reasonably acceptable to Tenant, Landlord and Tenant
shall mutually agree upon another time and date, provided that Tenant shall not
unreasonably delay such inspection. Tenant agrees to inspect the Premises at
such time and on such date and to execute at the time of such inspection
Landlord's form of inspection report which shall be prepared by Landlord's
architect and shall list items designated by said architect as not yet completed
and any additional items which Landlord and Tenant, in good faith, agree are not
yet completed (said list is hereinafter referred to as a "Punch List"). If
Tenant does not appear for inspection on the date designated or agreed upon,
Tenant shall be deemed to have accepted the Premises as substantially completed
and Landlord or its representative may execute such Punch List on behalf of both
Landlord and Tenant. In the event of any dispute as to whether or not Landlord
has substantially completed the Work, the decision of Landlord's architect shall
be final and binding on the parties. Tenant agrees that, at the request of
Landlord from time to time after the initial inspection, Tenant shall initial
such Punch List or execute revised Punch Lists to reflect completion or partial
completion of prior Punch List items.
(b) At any time after substantial completion of the Work, Landlord may
enter the Premises to complete Punch List items, and such entry by Landlord or
its agents, employees or contractors for such purpose shall not 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, or impose any other liability upon Landlord or its agents,
employees or contractors.
(c) Notwithstanding any provisions to the contrary contained in this
Workletter, if the Premises or any part thereof are used or occupied for
construction, installation of equipment or personal property or for any other
purpose by the Tenant or Tenant's agents, contractors or employees prior to
substantial completion, it is agreed that the Work affecting said Premises shall
then be deemed accepted by Tenant "as is" and Landlord shall have no obligation
to complete any incomplete items; provided, however, that at the request of
either party hereunder, Landlord and Tenant, acting reasonably, shall prepare a
Punch List prior to such occupancy showing incomplete items to be completed by
Landlord. Notwithstanding the foregoing, no such use or occupancy prior to
substantial completion shall be permitted without Landlord's consent, in
Landlord's sole discretion.
(d) The phrases "substantial completion" or "substantially complete"
shall mean that the Work has been completed except for such incomplete items as
would not materially interfere with the use of the Premises for its intended
uses, as described in the Lease (but excluding items not included in the Work
which are required for use of the Premises for such purposes). The Work shall be
deemed to be substantially complete on the date on which the Work would have
been substantially complete but for Tenant Delay or Force Majeure Delay or on
such earlier date as the Work shall be deemed to be substantially complete
pursuant to Paragraph 3(c) above.
4. ACCESS BY TENANT PRIOR TO COMMENCEMENT OF TERM.
(a) Landlord, at Landlord's sole discretion, may permit Tenant and
Tenant's agents, suppliers, contractors, subcontractors and workmen
(collectively, "Tenant's Contractors"), who have been approved by Landlord as
hereinafter provided, to enter the Premises prior to the commencement date of
the term of the Lease to enable Tenant to do such things as may be required by
Tenant to make the Premises ready for Tenant's occupancy.
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(b) Tenant shall notify Landlord of the identity of Tenant's Contractors
not less than ten (10) days prior to the initial entry into the Premises by any
such Tenant's Contractors, and Landlord shall have the right to approve or
disapprove any of Tenant's Contractors.
(c) Tenant agrees that if permission is granted Tenant for early entry
under this Paragraph, then (i) Tenant and Tenant's Contractors and their
activities in the Premises and Building will not interfere with or delay the
completion of the Work to be done by Landlord and will not interfere with other
construction by Landlord, its contractors and subcontractors and their agents
and employees or occupants of the Building and their contractors in or about the
Premises or Building, and (ii) Landlord, its contractors and subcontractors and
their agents and employees shall have priority over Tenant and Tenant's
Contractors in performing work within the Premises or Building, including,
without limitation, the use of hoists and elevators.
(d) Landlord shall have the right to withdraw its early occupancy
permission given under this Paragraph 4 upon written or oral notice to Tenant if
Landlord determines that any interference or delay has been or may be caused.
Tenant agrees that any such entry into the Premises shall be at Tenant's own
risk and Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of the Tenant's property or installations made in the
Premises.
(e) Tenant shall promptly pay to each of Tenant's Contractors when due
the cost of all Work done by such Tenant's Contractor and, if required by
Landlord, shall deliver to Landlord evidence of payment to each such party,
together with contractors' affidavits, partial and full and final waivers of all
liens for labor, service or materials and such other documents as Landlord may
request.
(f) Any work performed by Tenant or Tenant's Contractors shall be done
in a first-class workmanlike manner using only first-class grades of materials
and shall comply with all of Landlord's rules and requirements and all
applicable laws, ordinances, rules and regulations of governmental departments
or agencies.
(g) Any work done by Tenant or Tenant's Contractors will be scheduled
and coordinated through Landlord and shall be performed under the supervision
and control of Landlord to the extent Landlord determines to be necessary.
(h) Tenant agrees to protect, defend, indemnify and save harmless
Landlord and its officers, directors, partners, employees and agents from all
liabilities, costs, damages, fees and expenses arising out of or connected with
the activities of Tenant or Tenant's Contractors in or about the Premises or
Building, including, without limitation, the cost of any repairs to the Premises
or Building necessitated by activities of Tenant or Tenant's Contractors. In
addition, prior to the initial entry into the Building or the Premises by Tenant
or any of Tenant's Contractors, Tenant shall furnish Landlord, at Tenant's sole
cost, with policies of insurance required by the Lease and with any additional
insurance covering Landlord and its officers, directors, partners, employees and
agents as insured parties, with such coverages and in such amounts as Landlord
may then require, in order to insure Landlord and its officers, directors,
partners, employees or agents against loss or liability for injury or death or
damage to property arising out of or connected with any activities of Tenant or
Tenant's Contractors. Tenant acknowledges that the foregoing indemnity shall be
in addition to the insurance requirements set forth herein and shall not be in
discharge of or in substitution for same.
(i) Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of Tenant, operation
of law or otherwise, to be attached to or be placed upon Landlord's title or
interest in the Premises, Building or underlying land, and any and all liens and
encumbrances created by Tenant shall attach to Tenant's interest only. Tenant
covenants and agrees not to suffer or permit any lien of mechanics or
materialmen or others to be placed upon the Premises, Building or land with
respect to work or service claimed to have been performed for, or materials
claimed to have been furnished to, Tenant or the Premises by Tenant's
Contractors, and in case of any such lien attaching, Tenant covenants and agrees
to cause it to be immediately released
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and removed of record. In the event that such lien is not immediately released
and removed within ten (10) days after such lien, or notice thereof, is filed,
Landlord, at its sole option, may take all action necessary to release and
remove such lien (without any duty to investigate the validity thereof) and
Tenant shall promptly upon notice reimburse Landlord for all sums, costs and
expenses (including attorneys' fees) incurred by Landlord in connection with
such lien.
5. WAIVER OF CLAIMS. Tenant hereby waives all claims by the Tenant except
those arising from Landlord's failure to complete in due course the incomplete
items, if any, described on the Punch List. THE FOREGOING CONSTITUTES LANDLORD'S
ONLY WARRANTY. ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THOSE OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY NEGATED AND
WAIVED.
6. CHANGES IN THE WORK.
(a) Landlord or any Contractor may make minor changes in the Work
arising during the construction process not inconsistent with the intent hereof.
In addition, after prior notice to Tenant (which notice need not be in writing),
the Work may be changed (and the Plans will be revised by Landlord) to reflect
changes required by any local government inspectors.
(b) Tenant, at its own expense, may make changes in the Work by
submitting to Landlord the required revised Plans for approval or disapproval.
In the event Tenant submits revised Plans which are approved by Landlord,
Landlord will thereafter submit a proposal (the "Proposal") to Tenant for
approval showing (i) the cost resulting from the proposed changes and (ii) the
delay in completion of the Work anticipated as a result of the proposed changes
(it being understood that Tenant's request for a change may constitute "Tenant
Delay" pursuant to Paragraph 2 and the date of substantial completion shall not
be delayed or extended by reason thereof). The Proposal shall include a form of
Change Order which shall set forth the anticipated time to perform such
change(s) and the anticipated cost of such change(s) ("Change Order"). Tenant
may approve the Proposal by executing and delivering the Change Order, along
with the payment required in the Change Order, to Landlord within the time
period specified in the Proposal (or within forty-eight (48) hours, if no period
is required). If Tenant fails to approve the Proposal within the specified time
period, Tenant shall be deemed to have abandoned its request for changes in the
Work and Landlord may proceed with the Work without regard to such requested
changes. If at any time Tenant has requested changes, or Landlord has delivered
a Proposal to Tenant and Tenant has not yet approved the Proposal, Landlord may
at its election cease any portions of the Work affected by such changes, and
delays caused by such cessation of Work shall constitute "Tenant Delays" as
defined in Paragraph 2 hereof.
7. MISCELLANEOUS.
(a) The Work shall be done by Landlord, or its designees, contractors or
subcontractors, in accordance with the terms, conditions and provisions herein
contained.
(b) Except as herein expressly set forth or in the Lease, Landlord has
no agreement with Tenant and has no obligation to do any other work with respect
to the Premises. Any other work in the Premises which Tenant may be permitted by
Landlord to perform prior to the Commencement Date of the term of the Lease
shall be done at Tenant's sole cost and expense and in accordance with the terms
and conditions of the Lease, and the terms and provisions of Paragraph 4 of this
Workletter and such other requirements as Landlord deems necessary or desirable.
Any additional work or alterations to the Premises desired by Tenant after the
commencement date of the term shall be subject to the provisions of the Lease.
(c) Landlord is entitled to all available investment tax credits, if
any, for Work paid for and property acquired by Landlord pursuant to the Lease
and this Workletter. Nothing in the Lease or this Workletter shall be construed
as an agreement by Landlord to pass any investment tax credits through to
Tenant.
(d) Time is of the essence of this Workletter.
(e) Any person signing this Workletter on behalf of Landlord and/or
Tenant warrants and represents he has authority to do so.
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(f) This Workletter 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 the Lease or otherwise, or to any portion of the original
Premises or any additions thereto in the event of a renewal or extension of the
original term of the Lease, whether by any options under the Lease or otherwise,
unless expressly so provided in the Lease or any amendment or supplement
thereto.
(g) Tenant's failure to pay any amounts owed by Tenant hereunder when
due or Tenant's failure to perform its obligations hereunder shall also
constitute a default under the Lease, and Landlord shall have all the rights and
remedies granted to Landlord under the Lease for nonpayment of any amounts owed
thereunder or failure by Tenant to perform its obligations thereunder. Notices
under this Workletter shall be given in the same manner as under the Lease.
(h) The liability of Landlord hereunder or under any amendment hereto or
any instrument or document executed in connection herewith (including, without
limitation, the Lease) shall be limited to and enforceable solely against
Landlord's interest in the Building.
IN WITNESS WHEREOF, this Workletter is executed as of this 28 day of
February, 2000.
LANDLORD: BRE/SOUTHFIELD L.L.C.
By: /S/ MARSHALL K. FINDLEY
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Its: VICE PRESIDENT
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TENANT: C-Bridge Internet Solutions, Inc.
By: /S/ DONALD A. AMAYA
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Its: EXECUTIVE VICE PRESIDENT
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B-7
<PAGE>
EXHIBIT C
FORM OF LETTER OF CREDIT
(Letterhead and Address of Bank)
BRE/Southfield, L.L.C.
c/o
2000 Tower Center
Suite 2100
Southfield, Michigan 48075
Re: Irrevocable Standby Letter of Credit
No. _________________________________
Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit No._____________
___________________ in your favor for the account of____________________________
____________________________________________________________________("Tenant")
in the aggregate amount of ($___________________________).
You may draw upon such Letter of Credit at sight at the above address on or
before ________________________________________________________________, or such
annual anniversary thereof to which such date may be extended as provided
herein.
You may draw upon this Letter of Credit upon the presentation of the
following:
1. YOUR STATEMENT, APPROPRIATELY COMPLETED, SIGNED BY A PURPORTEDLY
AUTHORIZED OFFICER READING AS FOLLOWS:
A. "WE HEREBY CERTIFY WITH REGARD TO _________________ BANK STANDBY
LETTER OF CREDIT NO. _______________________ THAT WE ARE ENTITLED TO DRAW
HEREUNDER."
OR
B. "WE ARE IN RECEIPT OF _________________ BANK NOTICE OF NON-EXTENSION
OF THEIR LETTER OF CREDIT NO. _________________________________, AND THE
APPLICANT HAS FAILED TO PROVIDE A REPLACEMENT LETTER OF CREDIT ACCEPTABLE TO US
AS OF THE DATE OF OUR DRAWING."
2. THE ORIGINAL OF THIS CREDIT (FOR ENDORSEMENT OF DRAWING) WHICH WILL BE
RETURNED UNLESS THE CREDIT IS FULLY UTILIZED.
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR AN ADDITIONAL PERIOD OF ONE YEAR
FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE HEREOF, BUT NOT BEYOND
_____________ UNLESS AT LEAST THIRTY (30) DAYS PRIOR TO ANY SUCH EXPIRATION DATE
WE SEND YOU NOTICE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, THAT WE ELECT
NOT TO SO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH ADDITIONAL PERIOD. UPON
RECEIPT BY YOU OF SUCH NOTICE, YOU MAY DRAW HEREUNDER YOUR DRAFT(S) AT SIGHT ON
OURSELVES UP TO THE THEN FULL AMOUNT AVAILABLE UNDER THIS LETTER OF CREDIT
ACCOMPANIED BY YOUR STATEMENT AS SPECIFIED ABOVE.
DRAFT(S) MUST INDICATE NAME OF ISSUING BANK AND CREDIT NUMBER AND MUST
BE PRESENTED AT THIS OFFICE. (THE ADDRESS SPECIFIED ABOVE.)
C-1
<PAGE>
This Letter of Credit is binding upon, and shall inure to the benefit
of, the parties and their successors and assigns (without limitation as to the
number of times this Letter of Credit may be transferred) and the holder hereof
shall not incur any fees to the issuer as a condition to any such transfer.
Except to the extent expressly inconsistent therewith, this Letter of Credit is
subject to the Uniform Customs and Practice for Documentary Credits (1993
Revisions), International Chamber of Commerce Publication 500, and the Uniform
Commercial Code as adopted in the State in which this Bank is located, as the
same may be revised from time to time. In the event of conflict between the
Uniform Customs and Practice and the Uniform Commercial Code, the latter shall
govern and control.
All drawings made under this credit are to be endorsed hereon and shall
indicate date and amount.
THIS LETTER OF CREDIT SETS FORTH IN FULL TERMS OF OUR OBLIGATIONS TO
YOU, AND OUR UNDERTAKING SHALL NOT IN ANY WAY BE AMENDED OR AMPLIFIED BY
REFERENCE TO ANY DOCUMENTS, INSTRUMENTS OR ANY AGREEMENT REFERRED TO HEREIN OR
TO WHICH THIS LETTER OF CREDIT RELATES, AND SUCH REFERENCE, IF ANY, SHALL NOT BE
DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT, INSTRUMENT OR AGREEMENT.
ALL COMMUNICATIONS WITH RESPECT TO THIS LETTER OF CREDIT ARE TO BE
ADDRESSED AS FOLLOWS:
_______________________ BANK,_________________________, ATTN:_________________
(OUR FAX NO. _____________, TELEX NO._______________, ANSWER BACK_____________,
SWIFT NO. ___________________________). PLEASE ALWAYS QUOTE OUR L/C NUMBER.
WE ENGAGE WITH YOU THAT ALL DRAFT(S) DRAWN AND IN COMPLIANCE WITH THE
TERMS AND CONDITIONS OF THIS LETTER OF CREDIT SHALL BE DULY HONORED ON
PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE SPECIFIED ABOVE OR ANY
AUTOMATICALLY EXTENDED DATE HEREINBEFORE SET FORTH.
(Name of Bank)
By:
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Vice President
C-2
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 3-MOS
<FISCAL-YEAR-END> DEC-31-2000 DEC-31-1999
<PERIOD-START> JAN-01-2000 JAN-01-1999
<PERIOD-END> MAR-31-2000 MAR-31-1999
<CASH> 67,332 65,312
<SECURITIES> 0 0
<RECEIVABLES> 10,312 5,291
<ALLOWANCES> 154 100
<INVENTORY> 0 0
<CURRENT-ASSETS> 78,344 71,189
<PP&E> 4,294 3,026
<DEPRECIATION> 1,000 683
<TOTAL-ASSETS> 83,288 74,894
<CURRENT-LIABILITIES> 7,071 7,519
<BONDS> 192 263
0 0
0 0
<COMMON> 199 189
<OTHER-SE> 75,826 66,923
<TOTAL-LIABILITY-AND-EQUITY> 83,288 74,894
<SALES> 0 0
<TOTAL-REVENUES> 12,173 2,441
<CGS> 0 0
<TOTAL-COSTS> 6,046 1,527
<OTHER-EXPENSES> 8,174 1,098
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> (1,057) 71
<INCOME-PRETAX> (2,047) (184)
<INCOME-TAX> 0 0
<INCOME-CONTINUING> (990) (255)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (990) (255)
<EPS-BASIC> (0.05) (0.03)
<EPS-DILUTED> (0.05) (0.03)
</TABLE>
