LEASE

LEASE

at

VENTURE CORPORATE CENTER

between

METROPOLITAN LIFE INSURANCE COMPANY,

a New York corporation

(LANDLORD)

and

REWARDS NETWORK SERVICES INC.,

a Delaware corporation

(TENANT)

DATED: February 9, 2007

TABLE OF CONTENTS

 

 

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ii

 

iii

LEASE

ARTICLE ONE

BASIC LEASE PROVISIONS

1.01 BASIC LEASE PROVISIONS - In the event of any conflict between these Basic Lease Provisions and any other Lease provision, such other Lease provision shall control.

 

(1)	BUILDING AND ADDRESS:

Venture Corporate Center III

300 S. Park Road

Hollywood, Florida 33021

 

(2)	LANDLORD AND ADDRESS:

METROPOLITAN LIFE INSURANCE COMPANY

c/o Taylor & Mathis of Florida, LLC

3440 Hollywood Boulevard, Suite 480

Hollywood, Florida 33021

 

(3)	TENANT AND CURRENT ADDRESS:

REWARDS NETWORK SERVICES INC.

2 North Riverside Plaza, Suite 950

Chicago, Illinois 60606

Attention: General Counsel

 

(4)	DATE OF LEASE: February 9, 2007

 

(5)	LEASE TERM: Forty eight (48) months

 

(6)	COMMENCEMENT DATE: July 1, 2009

 

(7)	EXPIRATION DATE: June 30, 2013 (subject to extension as provided on Exhibit E)

 

(8)	MONTHLY BASE RENT:

 

 

(9)	RENTABLE AREA OF THE BUILDING: 83,785 square feet

 

(10)	RENTABLE AREA OF THE PREMISES: 21,879 square feet

 

(11)	SECURITY DEPOSIT: Fifty Two Thousand Three Hundred Thirty Six and 00/100 ($52,336.00)

 

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(12)	SUITE NUMBER OF PREMISES: 300

 

(13)	TENANT’S SHARE: 26.11%

 

(14)	TENANT’S USE OF PREMISES: General office use.

1.02 ENUMERATION OF EXHIBITS - The exhibits set forth below and attached to this Lease are incorporated in this Lease by this reference:

EXHIBIT A.       Plan of Premises

EXHIBIT B.       Work Letter Agreement

EXHIBIT C.       Property Legal Description

EXHIBIT D.       Rules and Regulations

EXHIBIT E         Option to Renew

EXHIBIT F         Satellite Dish

1.03 DEFINITIONS - For purposes hereof, the following terms, when capitalized in this Lease, shall have the following meanings:

 

(1)	AFFILIATE: Any corporation or other business entity which is currently, or hereinafter during the term of this Lease, owned or controlled by, owns or controls, or is under common ownership or control with Tenant.

 

(2)	ADJUSTMENT YEAR: The calendar year or any portion thereof after the Commencement Date of this Lease for which a Rent Adjustment computation is being made.

 

(3)	BUILDING: The office building located at 300 S. Park Road, Hollywood, Florida 33021.

 

(4)	COMMENCEMENT DATE: The date specified in Section 1.01(6) as the Commencement Date.

 

(5)	COMMON AREAS: All areas of the Real Property made available by Landlord from time to time for the general common use or benefit of the tenants of the Building, and their employees and invitees, or the public, as such areas currently exist and as they may be changed from time to time.

 

(6)	DECORATION: Tenant Alterations which do not require a building permit and which do not involve any of the structural elements of the Building, or any of the Building’s systems, including, without limitation, its electrical, mechanical, plumbing and security and life/safety systems.

 

(7)	DEFAULT RATE: The lesser of twelve percent (12%) per annum or the maximum rate allowed by the laws of the state in which the Building is located.

 

(8)

ENVIRONMENTAL LAWS: Any state, federal or other Law governing the use, storage, disposal or generation of any Hazardous Material, as defined by any such Law, including without limitation, the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended and the Resource Conservation and Recovery Act of 1976, as amended.

 

(9)	EXPIRATION DATE: The date specified in Section 1.01(7), subject to extension as provided in Exhibit E.

 

(10)	FORCE MAJEURE: Any accident, casualty, act of God, war or civil commotion, strike or labor troubles, or any cause whatsoever beyond the reasonable control of Landlord or Tenant, including,

 

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but not limited to, energy shortages or governmental preemption in connection with a national emergency, or by reason of government laws or any rule, order or regulation of any department or subdivision thereof or any governmental agency, or by reason of the conditions of supply and demand which have been or are affected by war or other emergency.

 

(11)	HAZARDOUS MATERIAL: Such substances, material and wastes which are or become regulated under any Environmental Law; or which are classified as hazardous or toxic under any Environmental Law; and explosives and firearms, radioactive material, asbestos, and polychlorinated biphenyls.

 

(12)	INDEMNITEES: Collectively, Landlord, any Mortgagee or ground lessor of the Property, the property manager and the leasing manager for the Property and their respective directors, officers, agents and employees.

 

(13)	LAND: The parcels of real estate on which the Building is located, more particularly described on Exhibit C attached hereto.

 

(14)	LANDLORD WORK: [INTENTIONALLY DELETED]

 

(15)

LAWS: All laws, ordinances, rules, regulations, other requirements, orders, rulings or decisions adopted or made by any governmental body, agency, department or judicial authority having jurisdiction over the Property, the Premises or Tenant’s activities at the Premises and any covenants, conditions or restrictions of record which affect the Property.

 

(16)	LEASE: This instrument and all exhibits and riders attached hereto, as may be amended from time to time.

 

(17)

LEASE YEAR: The twelve month period beginning on the first day of the first month following the Commencement Date (unless the Commencement Date is the first day of a calendar month in which case beginning on the Commencement Date), and each subsequent twelve month, or shorter, period until the Expiration Date.

 

(18)	MONTHLY BASE RENT: The monthly rent specified in Section 1.01(8).

 

(19)	MORTGAGEE: Any holder of a mortgage, deed of trust or other security instrument encumbering the Property.

 

(20)	NATIONAL HOLIDAYS: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day.

 

(21)

OPERATING EXPENSES: Except as excluded below, all costs, expenses and disbursements of every kind and nature which Landlord shall pay or become obligated to pay in connection with the ownership, management, operation, maintenance, replacement and repair of the Property or the Premises, all as more particularly set forth in Article Four hereof. Notwithstanding anything contained herein, Operating Expenses shall not include, (i) costs of alterations of the premises of tenants of the Building, (ii) costs of capital improvements to the Building (except for amortized portion of capital improvements together with interest thereon installed for the purpose of reducing or controlling Operating Expenses or complying with applicable Laws which are enacted after the date of this Lease), (iii) depreciation charges, (iv) interest and principal payments on loans (except for loans for capital improvements which Landlord is allowed to include in Operating Expenses as provided above), (v) ground rental payments, (vi) real estate brokerage and leasing commissions,

 

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(vii) advertising and marketing expenses, (viii) costs of Landlord reimbursed by insurance proceeds, (ix) expenses incurred in negotiating leases of other tenants in the Building, enforcing lease obligations of other tenants in the Building or provided special services to meet particular needs of specific tenants in the Building, and (x) Landlord’s or Landlord’s property manager’s corporate general overhead or corporate general administrative expenses. If any Operating Expense, though paid in one year, relates to more than one calendar year, at option of Landlord such expense shall be proportionately allocated among such related calendar years.

 

(22)	PREMISES: The space located in the Building described in Section 1.01(10) and depicted on Exhibit A attached hereto.

 

(23)	PROPERTY: The Building, the Land, any other improvements located on the Land, including, without limitation, any parking structures and the personal property, fixtures, machinery, equipment, systems and apparatus located in or used in conjunction with any of the foregoing.

 

(24)	REAL PROPERTY: [INTENTIONALLY DELETED]

 

(25)

RENT: Collectively, Monthly Base Rent, Rent Adjustments, Rent Adjustment Deposits and Additional Rent (as defined in Article Four) and all other charges, payments, late fees or other amounts required to be paid by Tenant under this Lease, including all sales and use taxes levied or assessed against all rental payments due under this Lease.

 

(26)	RENTABLE AREA OF THE BUILDING: 83,785 square feet, which represents the sum of the rentable area of all office space in Building.

 

(27)	RENTABLE AREA OF THE PREMISES: The amount of square footage set forth in Section 1.01(10).

 

(28)	RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating Expenses or Taxes. The Rent Adjustments shall be determined and paid as provided in Article Four.

 

(29)

RENT ADJUSTMENT DEPOSIT: An amount equal to the Rent Adjustments attributable to each month within the latest Adjustment Year for which the Rent Adjustment has been determined. Landlord shall estimate the Rent Adjustment Deposit for the remainder of the first calendar year of this Lease based on the Taxes and Operating Expenses of the Property.

 

(30)	SECURITY DEPOSIT: The funds specified in Section 1.01(11), if any, deposited by Tenant with Landlord as security for Tenant’s performance of its obligations under this Lease.

 

(31)	STANDARD OPERATING HOURS: Monday through Friday from 8:00 A.M. to 6:00 P.M., Saturday from 9:00 A.M. to 1:00 P.M., excluding National Holidays.

 

(32)	SUBSTANTIALLY COMPLETE: The completion of Tenant Work, except for minor, insubstantial or punchlist details of construction, decoration or mechanical adjustments which remain to be done.

 

(33)

TAXES: All federal, state and local governmental taxes, assessments and charges of every kind or nature, whether general, special, ordinary or extraordinary, which Landlord shall pay or become obligated to pay because of or in connection with the ownership, leasing, management, control or operation of the Property or any of its components, or any personal property used in connection therewith, which shall also include any rental or similar taxes levied in lieu of or in addition to general real and/or personal property taxes. For purposes hereof, Taxes for any year shall be Taxes

 

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which are assessed or become a lien during such year, whether or not such taxes are billed and payable in a subsequent calendar year. There shall be included in Taxes for any year the amount of all reasonable fees, costs and expenses (including reasonable attorneys’ fees) paid by Landlord during such year in seeking or obtaining any refund or reduction of Taxes. Taxes for any year shall be reduced by the net amount of any tax refund received by Landlord attributable to such year. If a special assessment payable in installments is levied against any part of the Property, Taxes for any year shall include only the installment of such assessment and any interest payable or paid during such year. Notwithstanding anything contained herein, Taxes shall not include any federal or state inheritance, general income, gift or estate taxes, except that if a change occurs in the method of taxation resulting in whole or in part in the substitution of any such taxes, or any other assessment, for any Taxes as above defined, such substituted taxes or assessments shall be included in the Taxes.

 

(34)	TENANT ADDITIONS: Collectively, Tenant Work and Tenant Alterations.

 

(35)	TENANT ALTERATIONS: All work installed or furnished to the Premises by Tenant excluding Tenant Work, which shall be governed by the Work Letter.

 

(36)	TENANT IMPROVEMENTS: Any alterations, improvements, additions, installations or construction in or to the Premises or any Building systems serving the Premises; and any supplementary air-conditioning systems installed by Landlord or by Tenant at Landlord’s request pursuant to Section 6.01(b).

 

(37)	TENANT DELAY: [INTENTIONALLY DELETED]

 

(38)	TENANT WORK: All work installed or furnished to the Premises by Tenant pursuant to the Work Letter.

 

(39)	TENANT’S SHARE: The percentage specified in Section 1.01(13) which represents the ratio of the Rentable Area of the Premises to the total Rentable Area of the Building.

 

(40)	TERM: The term of this Lease commencing on the Commencement Date and expiring on the Expiration Date, unless sooner terminated as provided in this Lease or extended as provided in Exhibit E.

 

(41)	TERMINATION DATE: The Expiration Date or such earlier date as this Lease terminates or Tenant’s right to possession of the Premises terminates.

 

(42)	WORK LETTER: The agreement regarding the manner of completion of Landlord Work and Tenant Work attached hereto as Exhibit B.

 

(42)

BUILDING GRADE: (i) the type, brand and/or quality of materials Landlord designates from time to time to be the minimum quality to be used in the Building or, as the case may be, the exclusive type, grade or quality of material to be used in the Building; and (ii) the standard method of construction and installation technique to be used in the Building.

ARTICLE TWO

PREMISES, TERM AND FAILURE TO GIVE POSSESSION

2.01 LEASE OF PREMISES - Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises for the Term and upon the terms, covenants and conditions provided in this Lease

 

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2.02 TERM - The Commencement Date shall be July 1, 2009 and the Expiration shall be June 30, 2013, subject to extension as provided in Exhibit E.

2.03 FAILURE TO GIVE POSSESSION - [INTENTIONALLY DELETED]

2.04 AREA OF PREMISES - Landlord and Tenant agree that for all purposes of this Lease the Rentable Area of the Premises and the Rentable Area of the Building as set forth in Article One are controlling, and are not subject to revision after the date of this Lease.

2.05 CONDITION OF PREMISES - Tenant shall be conclusively deemed to have accepted the Premises “AS IS” in the condition existing on the Commencement Date, and to have waived all claims relating to the condition of the Premises.

ARTICLE THREE

RENT

Tenant agrees to pay to Landlord at the property manager’s office specified in Section 1.01(2), or to such other persons, or at such other places designated by Landlord, in written notice to Tenant, without any prior demand therefor in immediately available funds and without any deduction or offset whatsoever, Rent, including, without limitation, Monthly Base Rent and Rent Adjustments in accordance with Article Four, to the extent identified by Landlord, during the Term. Monthly Base Rent, plus all applicable sales and use tax imposed upon rentals (and the same shall constitute additional rent hereunder), (to the extent identified by Landlord) shall be paid monthly in advance on the first day of each month of the Term, except that the first installment of Monthly Base Rent, plus all applicable sales and use tax upon rentals, shall be paid by Tenant to Landlord on the Commencement Date. Monthly Base Rent, plus all applicable sales and use tax upon rentals, shall be prorated for partial months within the Term. Unpaid Rent shall bear interest at the Default Rate from the date which is five (5) days after Unpaid Rent is first due until paid. Tenant’s covenant to pay Rent shall be independent of every other covenant in this Lease.

ARTICLE FOUR

ADDITIONAL RENT

4.01 RENT ADJUSTMENTS -

(a) In addition to the Base Rent, Tenant shall pay as “Additional Rent” Tenant’s Share of the Operating Expenses of the Building and the Property. Additional Rent shall be paid to Landlord in accordance with the following provision:

(1) Landlord shall use commercially reasonable efforts to furnish to Tenant prior to thirty (30) days after the beginning of each calendar year, including the first calendar year, a budget setting forth Landlord’s estimate of Operating Expenses for the upcoming year. The Operating Expenses shall be determined as though the Building were occupied at the actual occupancy rate or at an occupancy rate of ninety-five percent (95%), whichever is higher. Tenant shall pay to Landlord, on the first day of each month as Additional Rent, an amount equal to one-twelfth (1/12th)  of Tenant’s Share of Landlord’s estimate of the Operating Expenses for that calendar year. If there shall be any increase or decrease in the Operating Expenses for any year, whether during or after such year, Landlord shall furnish to Tenant a revised budget and the Operating Expenses shall be adjusted and paid on the first (1 ^st ) day of the month following delivery of such budget, or credited, as the case may be. If a calendar year ends after the expiration or termination of this Lease, the Additional Rent payable hereunder shall be prorated to correspond to that portion of the calendar year occurring within the Term of this Lease.

 

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4.02 STATEMENT OF LANDLORD - Landlord shall use commercially reasonable efforts to furnish to Tenant an operating statement showing the actual Operating Expenses incurred for the preceding calendar year within 120 days after the end of each calendar year. Tenant shall either receive a refund or be assessed an additional sum based upon the difference between Tenant’s Share of the actual Operating Expenses and the Additional Rent payments made by Tenant during said year. Any additional sum owed by one party to the other shall be paid within thirty (30) days of receipt of assessment. Landlord shall maintain books and records showing Operating Expenses and real estate taxes in accordance with sound accounting and management practices, consistently applied. The Tenant or its representative (which representative shall be a certified public accountant, in no manner compensated on a contingency basis, licensed to do business in the state in which the Property is located) shall have the right, for a period of forty five (45) days following the date upon which Landlord’s statement is delivered to Tenant, to examine Operating Expenses and Taxes during Standard Operating Hours, upon written notice, delivered at least three (3) business days in advance. If Tenant does not object in writing to Landlord’s statement within forty five (45) days of Tenant’s receipt thereof, specifying the nature of the item in dispute and the reasons therefore, then Landlord’s statement shall be considered final and accepted by Tenant. If Operating Expenses or Taxes for any calendar year are overstated by more than four percent (4%), the third party costs and expenses of Tenant’s review shall be split equally between Landlord and Tenant. Any amount due to the Landlord as shown on Landlord’s statement, whether or not disputed by Tenant as provided herein shall be paid by Tenant when due as provided above, without prejudice to any such written exception. The respective obligations of the parties hereto pursuant to this Section 4.02 shall survive the termination of this Lease.

ARTICLE FIVE

SECURITY DEPOSIT

Tenant concurrently with the execution of this Lease shall pay to Landlord the Security Deposit. The Security Deposit may be applied by Landlord to cure any Default of Tenant under this Lease, and upon notice by Landlord of such application, Tenant shall replenish the Security Deposit in full by paying to Landlord within ten (10) days of demand the amount so applied. The failure to so replenish the Security Deposit shall be a Default hereunder. Landlord shall not pay any interest on the Security Deposit. The Security Deposit shall not be deemed an advance payment of Rent, nor a measure of damages for any default by Tenant under this Lease, nor shall it be a bar or defense to any action which Landlord may at any time commence against Tenant. In the absence of evidence satisfactory to Landlord of an assignment of the right to receive the Security Deposit or the remaining balance thereof, and provided Tenant has complied with all of its obligations hereunder, Landlord may return the Security Deposit to the original Tenant, regardless of one or more assignments of this Lease. Upon the transfer of Landlord’s interest under this Lease, Landlord’s obligation to Tenant with respect to the security deposit shall terminate.

If Tenant shall fully and faithfully comply with all the terms, provisions, covenants, and conditions of this Lease, the Security Deposit, or any balance thereof, shall be returned to Tenant, in accordance with applicable law, after the following:

 

(a)

the expiration of the term of this Lease;

 

(b)

the removal of Tenant and its property from the Premises;

 

(c)

the surrender of the Premises by Tenant to Landlord in accordance with this Lease; and

 

(d)

the payment by Tenant of any outstanding Rent, including, without limitation, all Rent Adjustments due pursuant to the Lease as computed by Landlord.

 

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ARTICLE SIX

SERVICES

6.01 LANDLORD’S GENERAL SERVICES -

(a) So long as the Lease is in full force and effect and Tenant has paid all Rent then due, Landlord shall furnish the following services at a level not less than prevailing standards of comparable buildings in the Hollywood, Florida area:

(1) heat, ventilation and air-conditioning in the Premises during Standard Operating Hours, as necessary in Landlord’s reasonable judgment for the comfortable occupancy of the Premises under normal business operations, subject to compliance with all applicable voluntary and mandatory regulations and Laws;

(2) cold water for use in lavatories in common with other tenants from the regular supply of the Building;

(3) customary cleaning and janitorial services in the Premises Monday through Friday, excluding National Holidays;

(4) washing of the outside windows in the Premises weather permitting at intervals determined by Landlord in accordance with applicable standards;

(5) automatic passenger elevator service in common with other tenants of the Building at all times and freight elevator service subject to reasonable scheduling by Landlord and payment of Landlord’s standard charges;

(6) routine maintenance and electric lighting service for all Common Areas of the Building in the manner and to the extent reasonably deemed by Landlord to be standard;

(7) subject to the provisions of Section 6.02 hereof, facilities to provide all electrical current required by Tenant in its use and occupancy of the Premises;

(8) all fluorescent bulb replacement in the Premises necessary to maintain the lighting therein and fluorescent and incandescent bulb replacement in the Common Areas;

(9) security in the form of limited access to the Building during other than Standard Operating Hours shall be provided in such form as Landlord deems appropriate. Landlord, however, shall have no liability to Tenant, its employees, agents, invitees or licensees for losses due to theft or burglary, or for damages done by unauthorized persons on the Premises and neither shall Landlord be required to insure against any such losses. Tenant shall cooperate fully in Landlord’s efforts to maintain security in the Building and shall follow all regulations promulgated by Landlord with respect thereto, provided, however, Tenant shall have access to the Premises at all times unless closed due to emergency.

(b) Wherever heat generating machines or equipment are used by Tenant in the Premises, the following additional provisions shall apply:

If the use of such machinery exceeds the limits established in Section 6.02 thereby affecting the temperature otherwise maintained by the air-cooling system or whenever the occupancy or electrical load exceeds the standards set forth in Section 6.02 below, Landlord reserves the

 

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right to install or to require Tenant to install supplementary air conditioning units in the Premises. Tenant shall bear all costs and expenses related to the installation, maintenance and operation of such units.

6.02 ELECTRICAL SERVICES -

(a) Tenant’s use of electrical services furnished by Landlord shall be subject to the following:

(1) Tenant’s electrical requirements shall be restricted to that equipment which individually does not have a name plate rating greater than 16 amps at 120 volts, single phase. Collectively, Tenant’s leased Premises shall not have a computed electrical load for overhead lighting and equipment greater than five (5) watts per square foot.

(2) Tenant’s overhead lighting is included in the electrical load above (5 watts/sq. ft. available for tenant lighting and electrical receptacles for equipment).

(3) Tenant will not install or connect any electrical equipment which in Landlord’s reasonable opinion will overload the wiring installations or interfere with the reasonable use thereof by other users in the Building. Tenant will not, without Landlord’s prior written consent in each instance, which shall not be unreasonably withheld or delayed, connect any items such as non-Building standard tenant lighting, vending equipment, or make any alteration or addition to the Building’s electrical system. If Tenant desires any such items, additional 208/120 volt electrical power beyond that supplied by Landlord as provided above, or other special power requirements or circuits, then Tenant may request Landlord to provide such supplemental power or circuits to the Premises, which request Landlord may grant or withhold in its reasonable discretion. If Landlord furnishes such power or circuits, Tenant shall pay Landlord, on demand, the cost of the design, installation and maintenance of the facilities required to provide such additional or special electrical power or circuits and the cost of all electric current so provided at a rate not to exceed that which would be charged by Florida Power & Light, or its successor, if Tenant were a direct customer thereof. Landlord may require separate electrical metering of such supplemental electrical power or circuits to the Premises and Tenant shall pay, on demand, the cost of the design, installation and maintenance of such metering facilities. In no event shall Tenant have access to any electrical closets. Tenant agrees that any electrical engineering design or contract work shall be performed at Tenant’s expense by Landlord or an electrical engineer and/or electrical contractor designated by Landlord. All invoices respecting the design, installation and maintenance of the facilities requested by Tenant shall be paid within thirty (30) days of Tenant’s receipt thereof. Landlord’s charge to Tenant for the cost of electric current so provided shall be paid within thirty (30) days of receipt of invoice by Tenant.

(4) Notwithstanding anything to the contrary, the parties acknowledge that Tenant shall be allowed a supplementary rooftop HVAC to be installed and maintained by contractors approved by Landlord in a location to be reasonably determined by Landlord shown on Exhibit G attached hereto and made a part hereof. Landlord shall provide access to the areas as are necessary to install same. Tenant’s indemnity obligations shall extend to the HVAC and its installation, maintenance and removal.

(b) Landlord reserves the right to prescribe the weight limitations and position of all heavy equipment and similar items, and to prescribe the reinforcing necessary, if any, which in the opinion of Landlord may be required under the circumstances, such reinforcing to be at Tenant’s expense.

 

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6.03 ADDITIONAL AND AFTER-HOUR SERVICES - At Tenant’s request, Landlord shall furnish additional quantities of any of the services or utilities specified in Section 6.01, on the terms set forth herein. Tenant shall deliver to Landlord a written request for such additional services or utilities prior to 2:00 P.M. on Monday through Friday (except National Holidays) for service on those days, and prior to 2:00 P.M. on the last business day prior to Saturday, Sunday or a National Holiday, for service on said Saturday, Sunday or National Holiday. For services or utilities requested by Tenant and furnished by Landlord, Tenant shall pay to Landlord as a charge therefor Landlord’s prevailing rates for such services and utilities as charged to each other tenant in the Building. If Tenant shall fail to make any such payment, Landlord may, upon notice to Tenant and in addition to Landlord’s other remedies under this Lease, discontinue any or all of the additional services.

6.04 PHONE SERVICES - All telegraph, telephone, and electric connections which Tenant may desire shall be first approved by Landlord in writing, before the same are installed, and the location of all wires and the work in connection therewith shall be performed by contractors approved by Landlord and shall be subject to the direction of Landlord. Such approval shall not be unreasonably withheld or delayed. Tenant shall be responsible for and shall pay all costs incurred in connection with the installation of telephone cables and related wiring in the Premises, including, without limitation, any hook-up, access and maintenance fees related to the installation of such wires and cables in the Premises and the commencement of service therein, and the maintenance thereafter of such wire and cables. Additionally, there shall be included in Operating Expenses for the Building all installation, hook-up or maintenance costs incurred by Landlord in connection with telephone cables and related wiring in the Building which are not allocable to any individual users of such service but are allocable to the Building generally. If Tenant fails to maintain all telephone cables and related wiring in the Premises and such failure affects or interferes with the operation or maintenance of any other telephone cables or related wiring in the Building, Landlord or any vendor hired by Landlord may enter into and upon the Premises forthwith and perform such repairs, restorations or alterations as Landlord deems necessary in order to eliminate any such interference (and Landlord may recover from Tenant all of Landlord’s costs in connection therewith). Upon the Termination Date, Tenant agrees to remove all telephone cables and related wiring installed by Tenant for and during Tenant’s occupancy, which Landlord shall request Tenant to remove. Tenant agrees that neither Landlord nor any of its agents or employees shall be liable to Tenant, or any of Tenant’s employees, agents, customers or invitees or anyone claiming through, by or under Tenant, for any damages, injuries, losses, expenses, claims or causes of action because of any interruption, diminution, delay or discontinuance at any time by any third party for any reason in the furnishing of any telephone service to the Premises and the Building.

6.05 DELAYS IN FURNISHING SERVICES - Tenant agrees that Landlord shall not be in breach of this Lease nor liable to Tenant for damages or otherwise, for any failure to furnish, or a delay in furnishing, or a change in the quantity or character of any service when such failure, delay or change is occasioned, in whole or in part, by repairs, improvements or mechanical breakdowns by the act or default of Tenant or other parties or by an event of Force Majeure. No such failure, delay or change shall be deemed to be an eviction or disturbance of Tenant’s use and possession of the Premises, or relieve Tenant from paying Rent or from performing any other obligations of Tenant under this Lease without any deduction or offset. Failure to any extent to make available, or any slowdown, stoppage, or interruption of, the specified utility services resulting from any cause beyond Landlord’s reasonable control, including, without limitation, changes in service provider or Landlord’s compliance with any voluntary or similar governmental or business guidelines now or hereafter published or any requirements now or hereafter established by any governmental agency, board, or bureau having jurisdiction over the operation of the Building shall not render Landlord liable in any respect for damages to either persons, property, or business, nor be construed as an eviction of Tenant or work an abatement of Rent, nor relieve Tenant of Tenant’s obligations for fulfillment of any covenant or agreement hereof. Should any equipment or machinery furnished by Landlord break down or for any cause cease to function properly, Landlord shall use reasonable diligence to repair same promptly, but Tenant shall have no

 

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claim for abatement of Rent or damages on account of any interruption of service occasioned thereby or resulting therefrom unless Landlord fails to make such repair.

6.06 CHOICE OF SERVICE PROVIDER - Tenant acknowledges that Landlord may, at Landlord’s sole option, to the extent permitted by applicable law, elect to change, from time to time, the company or companies which provide services (including, without limitation, electrical service, gas service, water and technical services) to the Building, the Premises and/or its occupants. Landlord shall endeavor to give Tenant not less than thirty (30) days notice of any scheduled change. Notwithstanding anything to the contrary set forth in this Lease, Tenant acknowledges that Landlord has not and does not make any representations or warranties concerning the identity or identities of the company or companies which provide services to the Building and the Premises or its occupants and Tenant acknowledges that the choice of service providers and matters concerning the engagement and termination thereof shall be solely that of Landlord. The foregoing provision is not intended to modify, amend, change or otherwise derogate any provision of this Lease concerning the nature or type of service to be provided or any specific information concerning the amount thereof to be provided. Tenant agrees to cooperate with Landlord and each of its service providers in connection with any change in service or provider.

ARTICLE SEVEN

POSSESSION, USE AND CONDITION OF PREMISES

7.01 POSSESSION AND USE OF PREMISES -

(a) Tenant shall occupy and use the Premises only for the uses specified in Section 1.01(14) to conduct Tenant’s business. Tenant shall not occupy or use the Premises (or permit the use or occupancy of the Premises) for any purpose or in any manner which: (1) is unlawful or in violation of any Law or Environmental Law; (2) may be dangerous to persons or property or which may increase the cost of, or invalidate, any policy of insurance carried on the Building or covering its operations; (3) is contrary to or prohibited by the terms and conditions of this Lease or the rules of the Building set forth in Article Eighteen; or (4) would tend to create, cause or continue a nuisance.

(b) Tenant and Landlord shall each comply with all Environmental Laws concerning the proper storage, handling and disposal of any Hazardous Material with respect to the Property. Tenant shall not generate, store, handle or dispose of any Hazardous Material in, on, or about the Property without the prior written consent of Landlord except for ordinary quantities of office products. In the event that Tenant is notified of any investigation or violation of any Environmental Law arising from Tenant’s activities at the Premises, Tenant shall immediately deliver to Landlord a copy of such notice. In such event or in the event Landlord reasonably believes that a violation of Environmental Law exists, Landlord may conduct such tests and studies relating to compliance by Tenant with Environmental Laws or the alleged presence of Hazardous Materials upon the Premises as Landlord deems desirable, all of which shall be completed at Tenant’s expense if they show Tenant has breached its obligations hereunder. Landlord’s inspection and testing rights are for Landlord’s own protection only, and Landlord has not, and shall not be deemed to have assumed any responsibility to Tenant or any other party for compliance with Environmental Laws, as a result of the exercise, or non-exercise of such rights. Tenant shall indemnify, defend, protect and hold harmless the Indemnitees from any and all loss, claim, expense, liability and cost (including attorneys’ fees) arising out of or in any way related to the presence of any Hazardous Material introduced to the Premises during the Lease Term by Tenant or its agents or contractors. If any Hazardous Material is released, discharged or disposed of on or about the Property 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 Fourteen to the extent that the Premises are affected thereby; in such case, Landlord and Tenant shall have the obligations and rights respecting such casualty damage provided under such Article.

 

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(c) Landlord and Tenant acknowledge that the Americans With Disabilities Act of 1990 (42 U.S.C §12101 et seq.) and regulations and guidelines promulgated thereunder, as all of the same may be amended and supplemented from time to time (collectively referred to herein as the “ADA”) establish requirements for business operations, accessibility and barrier removal, and that such requirements may or may not apply to the Premises and the Property depending on, among other things: (1) whether Tenant’s business is deemed a “public accommodation” or “commercial facility”, (2) whether such requirements are “readily achievable”, and (3) whether a given alteration affects a “primary function area” or triggers “path of travel” requirements. The parties hereby agree that: (a) Landlord shall be responsible for ADA Title III compliance in the Common Areas, except as provided below, (b) Tenant shall be responsible for ADA Title III compliance in the Premises, including any leasehold improvements or other work to be performed in the Premises under or in connection with this Lease, (c) Landlord may perform, or require that Tenant perform, and Tenant shall be responsible for the cost of, ADA Title III “path of travel” requirements triggered by alterations in the Premises, and (d) Landlord may perform, or require Tenant to perform, and Tenant shall be responsible for the cost of, ADA Title III compliance in the Common Areas necessitated by the Building being deemed to be a “public accommodation” instead of a “commercial facility” as a result of Tenant’s use of the Premises. Tenant shall be solely responsible for requirements under Title I of the ADA relating to Tenant’s employees.

7.02 LANDLORD ACCESS TO PREMISES -

(a) Tenant shall permit Landlord to erect, use and maintain pipes, ducts, wiring and conduits in and through the Premises in the existing locations, so long as Tenant’s use, layout or design of the Premises is not materially affected or altered. Landlord or Landlord’s agents shall have the right to enter upon the Premises in the event of an emergency, or to inspect the Premises, to perform janitorial and other services, to conduct safety and other testing in the Premises and to make such repairs, alterations, improvements or additions to the Premises or the Building or other parts of the Property as Landlord may deem necessary or desirable (including, without limitation, all alterations, improvements and additions in connection with a change in service provider or providers). Janitorial and cleaning services shall be performed after Standard Operating Hours. In connection therewith, Landlord shall be allowed to store on the Premises all necessary supplies and materials. Any entry or work by Landlord may be during Standard Operating Hours and Landlord shall use reasonable efforts to notify Tenant in advance of such entry and ensure that any entry or work shall not materially interfere with Tenant’s use and occupancy of the Premises.

(b) If Tenant shall not be personally present to permit an entry into the Premises when for any reason an entry therein shall be necessary or permissible, Landlord (or Landlord’s agents), after attempting to notify Tenant (unless Landlord believes an emergency situation exists), may enter the Premises without rendering Landlord or its agents liable therefor (if during such entry Landlord or Landlord’s agent shall accord reasonable care to Tenant’s property), and without relieving Tenant of any obligations under this Lease.

(c) Landlord may enter the Premises for the purpose of conducting such inspections, tests and studies as Landlord may deem desirable or necessary to confirm Tenant’s compliance with all Laws and Environmental Laws or for other purposes necessary in Landlord’s reasonable judgment to ensure the sound condition of the Property and the systems serving the Property. Landlord’s rights under this Section 7.02(c) are for Landlord’s own protection only, and Landlord has not, and shall not be deemed to have assumed any responsibility to Tenant or any other party for compliance with Laws or Environmental Laws, as a result of the exercise or non-exercise of such rights.

(d) Landlord may do any of the foregoing, or undertake any of the inspection or work described in the preceding paragraphs without such action constituting an actual or constructive eviction of Tenant, in

 

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whole or in part, or giving rise to an abatement of Rent by reason of loss or interruption of business of the Tenant, or otherwise.

7.03 QUIET ENJOYMENT - Landlord covenants that so long as Tenant is in compliance with the covenants and conditions set forth in this Lease, Tenant shall have the right to quiet enjoyment of the Premises without hindrance or interference from Landlord or those claiming through Landlord.

ARTICLE EIGHT

MAINTENANCE

8.01 LANDLORD’S MAINTENANCE - Subject to the provisions of Article Fourteen, Landlord shall maintain and make necessary repairs to the foundations, roofs, exterior walls, exterior windows, and the structural elements of the Building, the electrical, plumbing, heating, ventilation and air-conditioning systems of the Building and the public corridors, washrooms and lobby and other Common Areas of the Building, except that: (a) Landlord shall not be responsible for the maintenance or repair of any floor or wall coverings in the Premises or any of such systems which are located within the Premises, installed by Tenant and are supplemental or special to the Building’s standard systems; and (b) the cost of performing any of said maintenance or repairs whether to the Premises or to the Building caused by the negligence of Tenant, its employees, agents, serv