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EXHIBIT 10.66
LEASE AGREEMENT
DATED 3/15/00
BETWEEN
HIGH PROPERTIES
"LANDLORD"
AND
THE CHAS. LEVY CIRCULATING COMPANY, LLC
"TENANT"
RELATING TO
1850 COLONIAL VILLAGE LANE
LANCASTER, PENNSYLVANIA 17601
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LEASE AGREEMENT
PART I - BASIC LEASE INFORMATION
This
Lease Agreement (this "Lease") is made and executed this 15th day
of
March, 2000, by and between HIGH PROPERTIES, a Pennsylvania limited
partnership
(herein called "Landlord') and THE CHAS. LEVY CIRCULATING COMPANY,
LLC, a
Delaware limited liability company (herein called "Tenant").
This
Lease consists of the following two parts: Part I which sets
forth
terms defined in this Lease (and certain obligations under the
Lease) and which
is sometimes referred to as the "Basic Lease Information," and Part
II which
provides the terms and conditions of this Lease and which is
sometimes referred
to as the Lease Terms and Conditions. Part I and Part II
collectively, are
referred to as this "Lease." Capitalizes terms not otherwise
defined in this
Part I - Basic Lease Information shall have the meaning provided in
Part II of
the Lease.
The
Basic Lease Information is as follows:
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1. Landlord:
HIGH PROPERTIES ,a Pennsylvania limited partnership.
2. Tenant:
THE CHAS. LEVY CIRCULATING COMPANY, LLC
3. Permitted Use:
Distribution and Storage of Magazines
4. Campus:
Greenfield Corporate Center, located in the Township
of East Lampeter, County of Lancaster, State of
Pennsylvania.
5. Building:
Building 40 of the Campus located at 1850 Colonial
Village Lane, Lancaster, Pennsylvania.
6. Premises:
The Premises consist of the entire Building and the
terms "Building" and "Premises" shall have the same
meaning wherever used in this Lease.
7. Tenant Improvements:
Those improvements to be completed by Landlord in
accordance with the Work Agreement attached hereto
as Exhibit B.
Construction of approximately 2,000 to 4,000 square
feet of office space, per Exhibit B. The Lease shall
be
contingent upon Landlord and Tenant mutually
agreeing on an acceptable floor plan within thirty
(30) days. Additionally, Landlord will provide an
additional $150,000.00 toward Tenant Improvements.
This amount is to be fully amortized over the
initial lease term at a rate of 12%. The
improvements to be funded through this allowance
must be reviewed and approved by Landlord at
Landlord's discretion.
8. Term:
Five (5) Years - with a cancellation option after
year four (4). Penalty shall be equal to all
unamortized costs of Tenant improvements and
commissions. Landlord shall require six (6) months
advance written notice.
9. Term Commencement:
July 1, 2000, except as otherwise provided in
Section 2.2 of Part II of this Lease Tenant and
Tenant's subcontractor will have access to the
Premises no later than June 1, 2000 in order to
begin installation of furniture, fixture and
equipment
10. Expiration Date:
August 31, 2005
11. Rentable Area of Building:
105,600 Square Feet
12. Rentable Area of Premises:
105,600 Square Feet
13. Tenant's Share:
100.00 Percent (100%)
(For
pro-ration of Additional
Rent)
14. Monthly Base Rent:
July 1, 2000 to August 31,2000 - NO RENT DUE
September 1, 2000 to August 31, 2001 - $35,024.00 -
$3.98 psf
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September 1, 2001 to August 31, 2002 - $35,904.00 -
$4.08 psf
September 1, 2002 to August 31, 2003 - $36,784.00 -
$4.18 psf
September 1, 2003 to August 31, 2004 - $37,664.00 -
$4.28 psf
September 1, 2004 to August 31, 2005 - $38,544.00 -
$4.38 psf
15. Base Rent Over Term:
$2,207,040.00
16. Base Year:
Not Applicable
17. Additional Rent:
All amounts and charges require to be paid by Tenant
hereunder (other than Base Rent) as described more
particularly in Section 5.2 of Part II of this
Lease.
18. Rent:
Includes both the Base Rent and Additional Rent to
be paid by Tenant hereunder.
19. Security Deposit:
$35,024.00
20. Landlord Address for Notices: HIGH
PROPERTIES
c/o High Associates, Ltd.
1853 William Penn
Way
P.O. Box 10008
Lancaster, PA 17605-0008
21. Tenant's Address for Notices: THE CHAS.
LEVY CIRCULATING COMPANY, LLC
Attn: General Counsel
1200 N. North Branch Street
Chicago, IL 60622
22. Rent Payment/Address:
Payable to:
High Associates, Ltd.
P.O. Box 8500, S-9550
Philadelphia, PA 19178-9550
23. Commissions:
Broker's commission to be paid to:
Equis Corporation
161 North Clark Street, Suite 2700
Chicago, IL 60601
24. Calculation of Rentable Area:
Single-Tenant Building. The Premises are part of a
building which is leased entirely by Tenant.
"Rentable Area" has been calculated to include the
entire building and all of the land on which it is
located.
25. Condition of Premises:
Landlord shall improve the Premises with certain
improvements described more particularly in the Work
Agreement attached to the Lease as Exhibit B. Such
improvements are referred to in the Work Agreement
and in the Part II of the Lease as the "Tenant
Improvements." Except as may be expressly provided
in the Work Agreement, Tenant acknowledges that
neither Landlord nor any of Landlord's Affiliates
(as defined in Section 15(c) of Part II of the
Lease), nor any of their agents, have made any
representations, warranties or covenants, either
express or implied, with respect to the Premises,
the Building, the Common Areas (as defined in
Section 1.3 of Part II of the Lease), or the Campus,
or the condition of any of the foregoing except as
provided for in this Lease.
26. Payment of Operating Expenses: Tenant shall pay
Tenant's Share (as defined herein)
of annual Operating Expenses (as defined in Section
6.3 of Part II of the Lease)
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27. Payment of Utilities:
All charges for utilities used or incurred by Tenant
at the Premises, including without limitation heat,
water, sewer, gas and electricity, shall be included
as part of the Operating Expenses. Notwithstanding
the foregoing, if any of such utilities are
separately metered to the Premises, the charges for
such utilities shall not be included in the
Operating Expenses but shall be paid fully by
Tenant. Landlord shall determine whether such
amounts are to be paid by Tenant directly to the
utility provided or to Landlord.
28. Responsibility for HVAC Systems: Tenant, at Tenant's sole
cost and expense, shall
perform all maintenance, repair and replacement of
the HVAC Systems (as defined in Section 7.2 of Part
II of the Lease) serving the Premises, including
without limitation the scheduled maintenance set
forth on Exhibit C to the Lease. To ensure
performance of routine maintenance, Landlord shall
procure and keep in effect, at the sole cost of
Tenant to be paid as Additional Rent, a standard
preventative maintenance contract with a contractor
selected by Landlord who shall perform the scheduled
maintenance set forth on Exhibit C to the Lease.
Tenant, shall however, be given a one (1) year
warranty on all HVAC, electrical, and plumbing
systems on any repairs or replacements excluding
light bulbs, and the HVAC preventative maintenance
contract.
29. Obligation for Snow Removal
Landlord shall mow lawns, maintain and replace
and
Grounds Maintenance:
shrubbery, weed where appropriate, and remove snow
and ice from walkways, roadways, and parking areas
in accordance with the minimum requirements
specified on Exhibit D to the Lease. The cost of
such services shall be included as an Operating
Expense.
30. Exhibits and Riders:
Exhibit A - Depiction of The Premises
Exhibit B - Work Agreement (If Any)
Exhibit C - Specifications for HVAC Maintenance
Agreement
Exhibit D - Minimum Lawn Care and Snow Removal
Requirements
Exhibit E - Rules and Regulations
Exhibit F - Special Lease Terms (If Any)
31. Contingency:
This lease agreement is contingent upon Landlord
receiving an acceptable Lease Termination Agreement
from current tenant by March 15, 2000
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IN
WITNESS WHEREOF, and intending to be legally bound, Landlord and
Tenant
have caused this Part I of the Lease to be signed by their duly
authorized
officers or agents under seal, as of the date set forth above.
(Signature Page to Follow)
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LANDLORD
HIGH PROPERTIES
a Pennsylvania Limited Partnership
By: High General Corporation,
sole General Partner
Date 3/15/00
By: /s/ Mark C. Fitzgerald
------------------------------------
Print Name: Mark C. Fitzgerald
Title: Vice President-Operations
TENANT
THE CHAS. LEVY CIRCULATING COMPANY, LLC
a Delaware limited liability company
Date 3/15/00
By: /s/ K.F. Frtiz
------------------------------------
Print Name: K.F. Frtiz
Title: Vice Pres,
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
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LEASE AGREEMENT
PART II - LEASE TERMS AND CONDITIONS
1.
PREMISES.
1.1. Lease of Premises. Landlord hereby leases to Tenant, and
Tenant
accepts such lease from Landlord, under the terms and conditions
set forth in
this Lease, the Premises which are identified in the Basic Lease
Information.
The Premises are part of the Building identified in the Basic Lease
Information.
1.2. Rentable Area. The total Rentable Area of the Building and
the
Rentable Area of the Premises are as provided in the Basic Lease
Information.
Such figures have been calculated in accordance with the procedure
set forth in
the Basic Lease Information. Tenant acknowledges and agrees that
the Rentable
Area of the Building and the Rentable Area of the Premises stated
in the Basic
Lease Provisions are approximations only and that the amounts so
stated are
accepted as final and binding upon Tenant and Landlord for all
purposes of this
Lease. Rentable Area of the Premises has been determined in
accordance with the
following definition:
1.3. Common Areas. During the Term of the Lease, Tenant, and
its
agents, employees and invitees, shall have the right to use, in
common with all
others granted such rights by Landlord, in a proper and lawful
manner, (a) the
common sidewalks, access roads, parking areas and other outdoor
areas within the
Campus and (b) the common entranceways, lobbies, restrooms,
hallways, elevators
and buildings systems serving the Building of which the Premises
are a part of
like amenities collectively, the "Common Areas"). Such use shall be
subject to
the terms of this Lease and to such reasonable rules and
regulations as Landlord
may from time to time establish with respect thereto, including
without
limitation, the reservation of any particular parking spaces or
parking areas or
other portions of the Common Areas for the exclusive use of other
tenants of the
Campus.
1.4. Landlord's Reserved Rights in Common Areas. Landlord reserves
the
right from time to time, provided that Tenant's use and enjoyment
of the
Premises or the type or quality of services provided by Landlord
under this
Lease is not substantially and adversely affected thereby, to (a)
install, use,
maintain, repair and replace pipes, ducts, conduits, wires and
appurtenant
meters and equipment for service to other parts of the Building
above the
ceiling surface, below the floor surfaces, within the walls and in
the central
core areas, and to relocate any pipes, ducts, conduit, wires and
appurtenant
meters in the Premises which are so located or located elsewhere
outside the
Premises; (b) make changes to the Common Areas including without
limitation
changing the location, size, shape and number of driveways,
entrances, parking
spaces, parking areas, loading and unloading areas, ingress,
egress, direction
of traffic, landscaped areas and walkways; provided such changes do
not
materially and adversely affect Tenant's Permitted Use of the
Premises; (c)
close temporarily all or any portion of the Common Areas and/or the
Building in
order to perform any of the foregoing or any of the Landlord's
obligations under
this Lease, so long as reasonable access to the Premises remains
available
during normal business hours; and (d) alter, relocate, expand
and/or add
structures and improvements to, or remove same from, all or any
portion of the
Common Areas.
2.
IMPROVEMENTS.
2.1. Condition of Premises. The Premises shall be delivered by
Landlord to Tenant in the condition stated in the Basic Lease
Information
2.2. Completion and Delivery. The Premises shall be deemed Ready
for
Occupancy when the Tenant Improvements have been Substantially
Completed (as
hereafter defined). The term "Substantially Completed" when used in
this Lease
shall mean the earlier of (i) the date of issuance of a certificate
of occupancy
(temporary or permanent) for the Premises by the municipality in
which the
Premises are located, (ii) or if no certificate of occupancy is
required, the
date when Landlord's architect or general contractor certifies that
the Tenant
Improvements are Substantially Completed, which certification shall
be
conclusive and binding upon Landlord and Tenant, or (iii) the date
on which
Tenant takes possession of the Premises. The Tenant Improvements
shall be deemed
Substantially Completed notwithstanding the fact that minor details
of
construction, mechanical adjustments or decorations (items normally
referred to
as "punch list" items) which do not materially interfere with
Tenant's use of
the Premises (as determined by Landlord in the exercise of its
reasonable
judgment) remain to be performed in accordance with the Work
Agreement. Landlord
shall give Tenant reasonable advance notice of the date on which
Landlord
expects the Tenant Improvements to be Substantially Completed and
the Premises
to be Ready for Occupancy.
3.
TERM. Tenant shall have and hold the Premises for the term set
forth in
Basic Lease Information, beginning on the Term Commencement Date
and ending at
11:59 p.m. on the Term Expiration Date, both as specified in the
Basic Lease
Information. In the event that Landlord is constructing the Tenant
Improvements
and the Tenant Improvements are not Substantially Completed by the
date set
forth in the Basic Lease Information, then the Term Commencement
Date and the
Term Expiration Date shall be modified in accordance with the
following:
(a) If the Premises are Substantially Completed prior to the
Term
Commencement Date, and the Tenant takes possession of the Premises,
the Term
Commencement Date shall be the earlier of (i) the date the Tenant
takes
possession of the Premises, or (ii) the Term Commencement Date
defined in the
Basic Lease Information. The Term Expiration Date shall be the date
specified in
the Basic Lease Information.
(b) If the Premises are Substantially Completed after the Term
Commencement Date specified in the Basic Lease Information, the
Term
Commencement Date shall be the date the Premises are Substantially
Completed.
The Term Expiration Date shall be extended for the period of said
delay. If the
Substantially Completed
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Date is on a day which is other than the first day of a calendar
month, rent (as
hereafter defined) for said month shall be pro-rated based on a
thirty (30) day
month and the Term Expiration Date shall be further extended to the
end of the
calendar month after the Initial Term is completed. Landlord shall
not be liable
for any damage caused by any delay in the delivery of the Premises,
nor shall
this lease be void or voidable, except to the extent otherwise
provided in the
Work Agreement, Tenant shall not be liable for any rent until such
time as the
Premises are Ready for Occupancy . Warehouse area, excluding the
office area, is
to be delivered on July 15, 2000. If Landlord fails to deliver on
this date,
Landlord shall have thirty (30) days additionally to deliver, at
which time if
Landlord fails to deliver, Tenant may terminate the Lease.
4.
SECURITY DEPOSIT.
4.1. Requirement for Security Deposit. Simultaneously with the
execution of the Lease, Tenant shall deposit with Landlord as
security for the
payment and performance by Tenant of all of Tenant's obligations
under this
Lease the amount specified in the Basic Lease Information.
4.2. Return of Security Deposit. Within a reasonable time
following
the expiration of this Lease, not to exceed sixty (60) days,
Landlord shall
return the Security Deposit to Tenant (provided that Tenant is not
in default
under this Lease), less such portion thereof as Landlord shall have
used to make
good any default by Tenant with respect to any of Tenant's
obligations under
this Lease.
4.3. Deductions from Security Deposit. In the event of any default
by
Tenant hereunder, Landlord shall have the right from time to time
to apply all
or any portion of the Security Deposit to the performance of
Tenant's
unperformed obligations but shall not be obligated to do so. If
Landlord does so
apply any portion of the Security Deposit, Tenant, upon demand by
Landlord,
shall immediately pay to Landlord a sufficient amount to restore
the Security
Deposit to its original amount. Tenant's failure to fully restore
the Security
Deposit within ten (10) business days of Landlord's demand shall,
without
further notice or demand, constitute an Event of Default (as
hereafter defined).
Use by Landlord of the Security Deposit, or any portion thereof, to
satisfy any
of Tenant's obligations hereunder shall not constitute Landlord's
waiver of
Tenant's default with respect to such nonperformance for which
amounts are
expended, nor prevent Landlord from exercising any other remedies
available to
Landlord.
4.4. Transfer of Security Deposit. In the event of the sale or
transfer of Landlord's interest in the Premises, Landlord shall
transfer the
Security Deposit (or the remaining balance thereof) to such
purchaser or
transferee, whereupon Landlord shall be released from all liability
to Tenant
for the return of the Security Deposit. Tenant shall look only to
the party then
landlord for the return of the Security Deposit.
5.
RENT
5.1. Base Rent. The annual base rent (the "Base Rent") for the
Premises shall be as set forth in the Basic Lease Information.
Tenant shall pay
Base Rent in the monthly installments set forth in the Basic Lease
Information,
in advance, on the first day of each calendar month during the
Term; provided,
however, that the Base Rent for the first month of the Term shall
be paid upon
the signing of the Lease.
5.2. Additional Rent. In addition to Base Rent, Tenant shall pay
all
sums of money or other charges required to be paid by Tenant under
this Lease as
additional rent (the "Additional Rent"), whether or not same are
expressly
designated in this Lease as Additional Rent. All Additional Rent
shall be due
and payable with each monthly installment of the Base Rent unless
otherwise
provided herein.
5.3. Manner of
Payment. Base Rent and Additional Rent (together,
"Rent") payable under this Lease shall be paid in lawful money of
the United
States of America without prior notice or demand therefore, and
without
deduction, defense, counterclaim, setoff or abatement whatsoever.
Rent shall be
paid to Landlord at the address designated for Rent in the Basic
Lease
Information or such other address as Landlord may notify Tenant in
accordance
with the procedure for notice set forth in this Lease.
5.4. Interest on Delinquent Payments. If any payment or Rent is
not
paid within ten (10) business days of its due date, Tenant shall
pay interest on
such delinquent payment, from the original due date of such
delinquent payment,
and on any late charge from the due date of such late charge, at an
interest
rate (the "Interest Rate") equal to the lesser of (a) one and
one-half percent
(1.5%) per month, or (b) the maximum rate permitted by applicable
law, until
such amounts are paid in full. This Section 5.4 shall not relieve
Tenant from
its obligation to pay Rent at the times and in the manners herein
specified.
Acceptance by Landlord of interest shall not constitute a waiver of
Tenant's
default with respect to said delinquent payment, nor prevent
Landlord from
exercising any other rights or remedies available to Landlord.
6.
OPERATING EXPENSES.
6.1. Payments as Additional Rent. Tenant shall pay Tenant's Share
(as
defined in the Basic Lease Information) of Operating Expenses (as
hereafter
defined) as specified in the Basic Lease Information. Such amounts
shall be
deemed Additional Rent due from Tenant to Landlord hereunder.
6.2. Determination of Amounts Due.
(a) Landlord shall have the right, as its discretion, to make
reasonable estimates (and to revise any estimate from time to time,
which may be
more frequently than annually, as it shall deem necessary) of the
amounts of
Additional Rent to become due for Tenant's Share of Operating
Expenses in any
calendar year, and to require Tenant to pay such estimated amounts
in equal
monthly installments due as required by Section 5.3 on the first
day of each
calendar month. Interest shall accrue thereon when and as required
by Section
5.4. Whenever an estimate of Additional Rent for Operating Expenses
shall be
revised as aforesaid, Landlord shall have the right to increase the
monthly
installments thereafter to be paid. Alternatively, Landlord shall
have the right
to bill Tenant at the end of each
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calendar year, or as such intervals during the applicable calendar
year as
Landlord deems appropriate, for Tenant's Share of Operating
Expenses incurred at
the time of billing. In such case , Tenant shall have thirty (30)
business days
after receipt of Landlord's invoice to pay such Additional Rent,
after which
time interest at the Interest Rate shall accrue.
(b) At the end of each calendar year, Landlord shall cause the
actual amounts incurred as Operating Expenses for such calendar
year and
Tenant's Share thereof due as Additional Rent to be computed, and
a
reconciliation statement thereof shall be sent to Tenant. Excessive
payments
received from Tenant shall be credited toward subsequent payments
due as
Tenant's Share of Operating Expenses (with any net excess at the
end of this
Lease being returned to Tenant provided Tenant is not in default
hereunder), and
deficits shall be paid by Tenant on the next due date for payment
of Operating
Expenses set by Landlord, (with any net deficiency at the end of
this Lease to
be paid by Tenant within ten (10) business days after Landlord's
demand therefor
or, at Landlord's option, deducted from the Security Deposit).
(c) Unless, within ninety (90) days after Tenant's receipt of
Landlord's reconciliation statement described above, Tenant
notifies Landlord
that it disagrees with Landlord's calculation, specifying in detail
the basis
for such assertion ("Tenant's Dispute Notice"), Landlord's
reconciliation
statement provided to Tenant shall be conclusive and binding upon
Tenant for the
period represented thereby. If Tenant timely sends Tenant's Dispute
Notice to
Landlord, Tenant, at Tenant's expense, shall have sixty (60) days
from the
giving of Tenant's Dispute Notice to audit the books and records
maintained by
Landlord for the calculation of Operating Expenses for the year in
question.
Tenant's right to audit may be conducted directly by Tenant or by
an independent
certified public accountant but, in either case, shall be conducted
only at the
location where Landlord maintains its books and records and only
during
Landlord's normal business hours of operation. Any adjustment
required following
such review shall be made in accordance with Subsection (b) above.
Tenant's
failure to conduct such audit within such sixty (60) day period
shall be deemed
a waiver of Tenant's right to do so, in which case Landlord's
reconciliation
statement shall be conclusive and binding for such calendar
year.
(d) Tenant shall promptly notify Landlord of the result of any
audit so conducted by Tenant. Upon Landlord's receipt of notice
that Tenant
claims an adjustment to Tenant is due (an "Overcharge Notice"),
Landlord shall
notify Tenant in writing thirty (30) days of receipt of the
Overcharge Notice
whether or not it agrees with the determination set forth in the
Overcharge
Notice. Landlord's failure to timely notify Tenant that it
disagrees with the
Overcharge Notice ("Landlord's Dispute Notice") shall be treated as
if Landlord
provided notice to Tenant that it disagreed with such Overcharge
Notice. If
Landlord agrees with the Overcharge Notice, adjustment shall be
made as provided
in Subsection (b) above. If Landlord provides Tenant with a
Landlord Dispute
Notice, then Landlord and Tenant, as soon as reasonably practical
thereafter,
shall endeavor to resolve the disputed charge. If they are unable
to do so
within thirty (30) days of Landlord's Dispute Notice, then Landlord
and Tenant
shall select an independent arbitrator approved by the American
Arbitration
Association, on whom they reasonable agree, to resolve the dispute,
which
determination shall be final and binding on the parties. The cost
of the
arbitrator shall be prorated and paid by the parties based on the
percentage of
the disputed amount that the arbitrator awards to each party or
otherwise as
directed by the arbitrator.
6.3. Definition of Operating Expenses.
(a) When used in this Lease, "Operating Expenses" shall mean
all
expenses and costs of ownership, operation, management,
maintenance, repair,
replacement and safety of the Building and the Common Areas,
including without
limitation: (1) Real Estate Taxes (as hereafter defined); (2)
premiums for
insurance maintained by Landlord; (3) costs of repairs and
maintenance to the
Building, including periodic maintenance of the heating,
ventilating and cooling
systems; (4) charges for heat, water, sewer, gas, electricity and
other utility
services not otherwise separately metered to tenants; (5)
janitorial and
sanitation services, extermination, window washing, and trash
removal (including
any fines assessed to Landlord for recyclables not properly
sorted); (6) costs
of snow removal, lawn maintenance and landscaping; (7) costs for
fire and
security alarm systems and other security measures including
policing of parking
areas; (8) management fees payable to the managing agent for the
Building and
the Campus (provided, however, that if the management fees are paid
to any
affiliate of Landlord, then the amount thereof to be included in
Operating
Expenses shall not exceed such amounts as is customarily being
charged for
similar services rendered to comparable buildings in the
geographical market
within which the Campus is located); (9) Essential Capital
improvements (as
hereafter provided in Subsection d); (10) cost of elevator
operation and
maintenance, if any; (11) personal property taxes levied on or
attributable to
personal property uses in connection with the operation,
management, maintenance
or repair of the Common Areas or the Building; (12) costs of
licenses, permits
and similar fees and charges related to operation, maintenance,
repair,
replacement or registration of the Building or the Campus
(including with
respect to any underground or above-ground storage tanks), other
than any of the
foregoing related to tenant improvements; (13) wages, salaries,
bonuses and like
expenses for management and security personnel; (14) costs of
supplies,
materials and equipment (including rental fees) used in connection
with the
operation, management, maintenance or repair of the Common Areas or
the
Building; and (15) without limiting any of the foregoing, such
other expenses or
charges which, in accordance with sound accounting and management
principles
generally accepted with respect to a first-class building or
corporate park,
would be constructed as an Operating Expense. (The foregoing list
is intended as
an illustration of items which might be included as Operating
Expenses and shall
not be construed as Landlord's commitment or obligation to provide
same).
(b) Operating Expenses shall not include (1) costs incurred for
the account of, separately billed to, and paid by specific tenants;
(2) repairs
or replacements to the extend that the cost of the same is
recovered by
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Landlord pursuant to original construction warranties; and (3)
Landlord's cost
of tenant leasehold improvements, lease commissions and legal fees
arising from
lease disputes.
(c)
For purposes herein, "Real Estate Taxes" shall consist of (1)
all real estate taxes relating to the Building and/or the Common
Areas; (2) all
charges which may be levied in lieu of real estate taxes; (3) all
assessments
for municipal improvements and other governmental charges of any
kind and nature
for public improvements, services, benefits, or any other purpose;
and (4) all
assessments against the Building and/or the Common Areas pursuant
to any
covenants, restrictions or easement agreements affecting the
Building and/or the
Common Areas which became payable during the Term (or which became
payable after
the expiration or earlier termination hereof and are attributable
in whole or in
part to any period during the Term hereof), together with all costs
and expenses
incurred by Landlord in good faith in contesting, resisting, or
appealing any
such taxes or assessments, including, without limitation, legal
fees.
(d) If, during any year, Landlord shall make an expenditure for
a
capital improvement which is an "Essential Capital Improvement" as
hereafter
defined, the annual amortization of such expenditure (determined by
dividing the
cost of such expenditure by the useful life of the improvement
determined by
Landlord in its reasonable discretion), plus any interest or
financing charges
thereon, shall be deemed an Operating Expense for each year of such
amortization
period. "Essential Capital Improvement" as used herein means any of
the
following: (1) an energy savings device, a labor savings device or
other
installation, improvement, upgrade or replacement which reduces or
is intended
to reduce Operating Expenses, whether voluntarily undertaken or
required by any
governmental authority having jurisdiction, (2) any installation,
improvement,
upgrade or replacement required by any governmental authority
having
jurisdiction or Board of Fire underwriters (or similar governing
body) and which
Landlord is obligated to provide, and (3) an installation or
improvement which
directly enhances the safety of the occupants of the Campus or
tenants of the
Building generally, whether voluntarily undertaken or required by
any
governmental authority having jurisdiction.
(e) To the extent practicable, all Operating Expenses will be
accounted for and attributed separately for the Building and for
the other
tenant-occupied buildings of the Campus. To the extent such
allocation of an
item of Operating Expenses is not practicable, allocations will be
made among
the Building and other tenant-occupied buildings of the Campus
proportionately
among all thereof (based upon the respective square footage of each
as
determined by Landlord) or equally among all thereof or in such
other
proportions as reasonably may be determined by Landlord in the
exercise of
prudent management practices, which determination shall be
conclusive and
binding upon tenant.
7.
UTILITIES, HVAC SYSTEMS AND SERVICES.
7.1. Utilities.
(a) Tenant shall pay all charges for utilities used or incurred
by Tenant at the Premises as specified in the Basic Lease
Information.
(b) If Tenant shall require electricity or install electrical
equipment, including but not limited to electrical heating,
refrigeration
equipment, electronic data processing machines, or other machines
or equipment
which will in any way increase the amount of the electricity
usually furnished
for use as general office space, or if Tenant shall attempt to use
the Premises
in such a manner that the services to be furnished by Landlord
would be required
during periods other than or in addition to normal business hours,
which are
7:30 a.m. to 6:00 p.m., Monday through Friday, excluding holidays,
Tenant will
obtain prior written approval therefore from Landlord (and Landlord
may require
the installation of a separate sub-meter) and Tenant will pay for
the resulting
additional direct expense, including the expense resulting from the
installation
of such equipment and meters as Additional Rent promptly upon being
billed
therefore.
7.2.
Heating, Ventilation and Air Conditioning Systems. Per the
basic
lease information, Tenant shall receive a one (1) year warranty on
repairs and
replacement of plumbing, HVAC, and electrical, excluding the
preventative
maintenance agreement and light bulb replacement. Tenant shall have
the
obligation for maintenance, repair and replacement of the heating,
ventilating
and air conditioning systems (the "HVAC Systems') serving the
Premises as
specified in the Basic Lease Information.
7.3. Snow Removal and Lawn Maintenance. Landlord shall have the
obligations for snow removal and ground maintenance to the Premises
as specified
in the Basic Lease Information.
7.4. Interruption of Services. Landlord reserves the right,
without
any liability to Tenant, and without being in default of this
Lease, to
interrupt or suspend service of any of the heating, ventilating,
air
conditioning, electric, sanitary, or other system serving the
Premises or the
Building, or any other services required to be performed by
Landlord under this
Lease, whenever and for so long as may be necessary by reason of
accident,
emergencies, strikes or the making of repairs or changes which
Landlord is
required by this Lease or by law to make or otherwise deems
advisable, or by
reason of difficulty in securing proper supplies of fuel, steam,
water,
electricity, labor or supplies, or by reason of any other caused
beyond
Landlord's control, including without limitation mechanical failure
of building
systems and governmental restrictions on the use of materials or
the use of any
of such systems. In each instance, however, Landlord shall exercise
reasonable
efforts to eliminate the cause of interruption and to effect
restoration of
service, and shall give Tenant reasonable notice not less than five
(5) business
days, when practicable, prior to the commencement off such
interruption and
anticipated duration thereof. Landlord shall not be liable for any
damages to
Tenant resulting from Landlord's failure or inability to deliver
services as
provided herein, unless such interruption of service exceeds five
(5) business
days, and is due solely to the negligence of the Landlord, at which
Time Tenant
shall be entitled to a rent abatement as Tenant's sole remedy.
Without limiting
the generality of the
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foregoing, Tenant shall not be entitled to terminate this Lease nor
to receive
any diminution or abatement of Rent or other compensation or
damages nor shall
this Lease or any of the obligations of Tenant be affected or
reduced by reason
of any such interruption, stoppage or suspension of any such
systems or services
unless such interruption of service exceeds five (5) business days,
and is due
solely to the negligence of the Landlord, at which Time Tenant
shall be entitled
to a rent abatement as Tenant's sole remedy.
8.
REPAIRS AND MAINTENANCE.
8.1. Repairs. Tenant, at Tenant's sole cost and expense, shall
maintain in good repair the Premises and every part thereof,
including without
limitations doors (personal and vehicle), exterior windows, waste
disposal and
plumbing systems, dedicated HVAC Systems and all other mechanical
elements and
building systems serving the Premises, excluding only the following
which
Landlord shall maintain in good repair: roof, foundation, exterior
walls,
downspouts and gutters. Tenant shall promptly perform all repairs
in a good and
workmanlike manner. To the extent repairs are required to any
structural
components or building systems serving the Premises, Tenant shall
adhere to all
procedures for Alterations set forth in Section 13 of this
Lease.
8.2. Clean Condition. Tenant shall keep the premises in a
clean,
sanitary, orderly and safe condition to the reasonable satisfaction
of Landlord
and in accordance with any rules and regulations from time to time
in effect
during the Term of this Lease. No outside storage of any kind shall
be
permitted, and Landlord, without prior notice to Tenant, shall have
the right to
remove any items so stored and to bill Tenant for the cost of
removal and
storage as Additional Rent.
8.3. Janitorial and Trash Service. Tenant, at Tenant's sole cost
and
expense, shall perform all janitorial services for the Premises to
Landlord's
reasonable satisfaction and in such manner so as to maintain the
Premises as a
first-class building. Tenant shall promptly remove all trash from
the Premises
to the dumpster designated by Landlord for Tenant's use and shall
comply with
all laws, regulations and ordinances relating to recycling and
disposal of trash
generated by Tenant at the Premises.
9.
USE AND COMPLIANCE WITH LAWS.
9.1. Permitted Use. Tenant shall use the Premises only for the
Permitted Use set forth in the Basic Lease Information and uses
incidental
thereto. Tenant shall not permit the Premises to be vacant nor
shall Tenant
permit the Premises to be used for any illegal purpose or in any
manner which
would tend to damage any portion thereof or interfere or obstruct
the rights of
other tenants or occupants of the Building.
9.2. Insurance Risks. Tenant shall not conduct any activity or
permit
any activity to be conducted or place any equipment in or about the
Premises or
the Building which would in any way increase the rate of fire
insurance or other
insurance on the Building.
9.3. Compliance with Applicable Laws. Landlord shall turn over to
the
Tenant, the Premises in compliance with all applicable building
codes. Tenant
shall comply with all applicable laws, regulations, ordinances, and
directives
of the Federal Government, state and municipality in which the
Premises are
located as well as all judicial orders and the requirements of any
Board of Fire
Underwriters (or any other body exercising similar functions) as
are in effect
during the Term of this Lease, including without limitations, those
relating to
hazardous materials or substances, and occupational safety and
health, and, at
Tenant's sole cost and expense, shall perform any act or obligation
arising from
or as is necessary to achieve such compliance. At all times during
this Lease,
Tenant shall maintain and comply with all permits, licenses or
other
authorizations required by any governmental authority or agency for
Tenant's
occupancy or operations at the Premises.
9.4. Americans With Disabilities Act. In amplification of
Tenant's
obligations under Section 9.3 above and not in limitation thereof.
Tenant shall
be fully responsible for compliance with the Americans With
Disabilities Act of
1990, as amended from time to time (the "ADA"), and for all
alterations required
to be made to the Premises due to changes in or regulations under
the ADA or
judicial interpretations of the requirements of the ADA or changes
in Tenant's
use of the Premises or in the nature of Tenant's conduct of
business at the
Premises (including, but not limited to, any changes in use or
business conduct
arising out of a sublease or assignment or resulting in the
Premises being
deemed a "place of public accommodation" under the ADA) or
Alterations made by
Tenant. Landlord, at time of Tenant's occupancy, shall provide to
Tenant the
Premises in compliance with all applicable building codes,
including but not
limited to, Title III of the ADA.
9.5. Hazardous Materials.
(a) In
amplification of Landlord and Tenant's obligations under
Section 9.3 above and not in limitation thereof, Landlord and
Tenant shall
comply with all applicable environmental laws, orders, regulations,
ordinances
and directives now existing or hereafter enacted (the
"Environmental Laws") and,
at Tenant's sole cost and expense, shall perform any act or
obligation arising
from or as is necessary to achieve such compliance.
(b) Landlord and Tenant shall not cause or permit any portion
of
the premises or the Building to be used for the production,
storage, deposit or
disposal of Hazardous Materials (as hereafter defined), nor shall
tenant permit
Hazardous Materials to ever be placed or located upon the Premises
or the
Building except in such de minimis quantities of the types commonly
used in
office and cleaning supplies, provided that same are at all times
used, kept and
stored in full compliance with the Environmental Laws. As used
herein,
"Hazardous Materials" means all substances or pollutants which are
declared to
be or regulated as hazardous, toxic, dangerous or polluting
substances under the
Environmental Laws at any time during the Term of this Lease,
including, without
limitation, asbestos, polychlorinated biphenyl's (PCBs), urea
formaldehyde foam
insulation, and petroleum products and by-products.
(c) Landlord and Tenant shall promptly notify the other party
of
any actual or threatened lien against the Premises and/or the
Building of which
each party becomes aware pursuant to any of the Environmental
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Laws. Tenant, at Tenant's sole cost and expense, shall promptly
discharge and
remove any lien arising from Tenant's violation of any of the
Environmental
Laws, such action to be completed within thirty (30) days after
Tenant first
receives notice of such lien or violation, or such shorter period
of time if
required, (1) by the governmental agency enforcing the correction
of such
violation, or (2) to prevent the holder of any such lien from
forcing the sale
of the Premises and/or the Building.
(d) To the best of Landlord's knowledge, there has been no
adverse environmental impact that has occurred on the Premises.
9.6. Tanks. Tenant shall not bury nor place any underground or
above-ground storage tanks at the Premises and/or the Building or
the land on
which same is located.
9.7. Landlord's Inquiries and Inspection. Tenant shall promptly
and
accurately respond in writing to all inquiries made by landlord
(including
without limitation requests for documents) pertaining to Tenant's
obligations
under this Lease or use of the Premises. Landlord and any
authorized agent or
contractor hired by Landlord may enter the Premises at any time and
from time to
time for purposes of inspecting same and conducting tests thereupon
as Landlord
deems reasonably necessary to determine that Tenant is in
compliance with this
Lease, but Landlord shall not be obligated to do so. Unless an
emergency exists,
as determined by Landlord in its sole discretion. Landlord shall
notify Tenant
least five (5) business days in advance of any such inspection or
testing and,
to the extent practicable, shall conduct any such inspection or
testing in such
manner so as to minimize unreasonable interference with Tenant's
business. The
cost of such investigation and inspection shall be included as an
Operating
expense unless it is determined that Tenant is in noncompliance
with this Lease,
in which case such costs shall be paid solely by tenant as
Additional Rent
within thirty (30) business days of Landlord's demand therefore,
after which
time interest at the Interest Rate shall be shall be applied.
9.8. Notice of Violations. Tenant shall promptly notify Landlord
of
any violation of any applicable law which is alleged to have been
committed at
the Premises and shall forward to Landlord copies of any written
communications,
complains, citations or other notices relating to the condition of
the Premises
or compliance with applicable laws (an "Action Notice"). Tenant
promptly respond
to any Action Notice, cure any violation of applicable laws and
have dismissed
any legal action commenced against Tenant or the Premises to the
satisfaction of
Landlord. Prior to undertaking same, however, Tenant shall propose
to Landlord
its intended courses of action and proceed only with Landlord's
approval of
same, which shall not be deemed to be Landlord's guarantee that
such action is
appropriate nor impose any liability on same for Landlord.
9.9. Indemnification. In amplification of Tenant's obligations
under
Section 15 and not in limitation thereof, Tenant shall indemnify,
defend (with
legal counsel selected by Tenant, but subject to Landlord's
reasonable approval)
and hold harmless Landlord from and against any and all claims,
legal or
equitable, damages for personal injury (including death) or harm to
property
(real or personal), liabilities, penalties, fines and costs
(including without
limitation, investigation and remediation costs, sums paid in
private rights of
action or in settlement of claims, legal fees, consultant fees and
expert fees)
and damages in the nature of loss of use of the Premises or the
Building, or
loss of a sale of the Building, or rent received on leasing the
Building arising
out of or in any way connected to any condition caused or created
by Tenant's
failure to comply with its obligations under this Section 9.
Landlord shall
indemnify, defend (with legal counsel selected by Landlord) and
hold harmless
Tenant from and against any and all claims, legal or equitable,
damages for
personal injury (including death) or harm to property (real or
personal),
liabilities, penalties, fines and costs (including without
limitation,
investigation and remediation costs, sums paid in private rights of
action or in
settlement of claims, legal fees, consultant fees and expert fees)
and damages
in the nature of loss of use of the Premises due to environmental
impact caused
to the Premises by Landlord.
9.10. Survival. The provisions of this Section 9 shall survive
the
scheduled expiration or earlier termination of this Lease, and,
Tenant shall
perform all of its obligations hereby required, Tenant shall
continue to pay
rent, even though this Lease may have been terminated.
10.
INSURANCE.
10.1. Tenant's Required Coverage.
(a) Tenant, at Tenant's sole cost and expense, shall carry and
maintain during the Term of this Lease the following types of
insurance, in the
amounts and form hereinafter provided:
(1) Public Liability and Property Damage. Comprehensive
public liability insurance with a combined single limit of not less
than one
million dollars ($1,000,000) (with inflation endorsement) or such
larger amount
as may hereafter be reasonably requested from time to time by
Landlord, insuring
against any all liability with respect to the Premises or arising
out of
Tenant's maintenance, use or occupancy thereof.
(2) Tenant's Property and Improvements. Insurance providing
protection against any peril included within the classification of
"Fire and
Extended Coverage," together with insurance against sprinkler
damage, theft,
vandalism and malicious mischief, covering all property owed by
Tenant which is
located at the Premises, including the Tenant Improvements,
Tenant's trade
fixtures, merchandise and personal property from time to time in,
or upon the
Premises, and all personal property of others in Tenant's
possession, in an
amount not less than the full replacement cost thereof without
deduction for
depreciation as may be customarily carried by tenants of similar
properties as
Landlord may reasonable require from time to time.
(b) Policy Form. All policies of ins
