EXHIBIT 10.02
LEASE AGREEMENT
NTS REALTY HOLDINGS LIMITED PARTNERSHIP,
a Delaware limited partnership
(as successor in interest to Blankenbaker Business Center
Joint Venture, a Kentucky joint venture, and
NTS/BBC I, a Kentucky limited partnership)
("LANDLORD")
AND
SHPS, INC., a Florida corporation
("TENANT")
LEASE AGREEMENT
TABLE OF CONTENTS
Page
1.
TERMS AND
DEFINITIONS.................................................1
2.
PREMISES AND COMMON AREAS
LEASED......................................4
3.
TERM, CONSTRUCTION AND
POSSESSION.....................................5
4.
ANNUAL BASE RENT; OPERATING
EXPENSES..................................6
5.
USE...................................................................9
6.
PAYMENTS AND
NOTICES.................................................10
7.
BROKERS..............................................................11
8.
HOLDING
OVER.........................................................11
9.
TAXES ON PERSONAL PROPERTY; SALES, USE & EXCISE
TAXES................12
10.
ALTERATIONS AND
IMPROVEMENTS.........................................12
11.
LANDLORD'S RESERVED
RIGHTS...........................................14
12.
MECHANICS
LIENS......................................................15
13.
ENTRY BY
LANDLORD....................................................15
14.
UTILITIES AND SERVICES; TELECOMMUNICATIONS SERVICE
PROVIDERS.........16
15.
INDEMNIFICATION......................................................18
16.
INSURANCE AND WAIVER OF
RECOVERY.....................................19
17.
DAMAGE OR
DESTRUCTION................................................20
18.
EMINENT
DOMAIN.......................................................22
19.
FORCE
MAJEURE........................................................22
20.
DEFAULTS AND REMEDIES;
BANKRUPTCY....................................23
21.
ABANDONMENT OF PERSONAL
PROPERTY.....................................28
22.
TRANSFERS............................................................29
23.
ESTOPPEL CERTIFICATE, ATTORNMENT,
SUBORDINATION......................31
24.
RULES AND
REGULATIONS................................................32
25.
CONFLICT OF
LAWS.....................................................32
26.
SUCCESSORS AND
ASSIGNS...............................................32
27.
ATTORNEYS'
FEES......................................................32
28.
DEFINITION OF
LANDLORD...............................................32
29.
WAIVER...............................................................32
30.
IDENTIFICATION OF
TENANT.............................................33
31.
TERMS AND
HEADINGS...................................................33
32.
EXAMINATION OF
LEASE.................................................33
33.
TENANT'S
AUTHORITY...................................................33
34.
TIME.................................................................33
35.
PRIOR AGREEMENTS;
AMENDMENTS.........................................33
36.
PARTIAL
INVALIDITY...................................................34
37.
RECORDING............................................................34
38.
LIMITATION ON
LIABILITY..............................................34
39.
RIDERS...............................................................34
40.
SIGNS AND
AUCTIONS...................................................34
41.
MORTGAGEE'S
APPROVAL.................................................34
42.
ACCORD AND
SATISFACTION..............................................35
43.
FINANCIAL
STATEMENTS.................................................35
44.
MISCELLANEOUS
PROVISIONS.............................................35
45.
CONSENTS BY
LANDLORD.................................................36
46.
DISCLAIMER; WAIVER OF JURY TRIAL
....................................36
47.
ROOF
RIGHTS..........................................................37
48.
VENTING..............................................................37
49.
HOLIDAYS.............................................................38
50.
HAZARDOUS
MATERIALS..................................................38
51.
QUIET
ENJOYMENT......................................................39
52.
MOLD.................................................................39
53.
OFFICE OF FOREIGN ASSETS ("OFAC")
CONTROL............................40
54.
HIPAA
REQUIREMENTS...................................................40
EXHIBIT A - FLOOR
PLAN....................................................A1
EXHIBIT B- LEGAL DESCRIPTION OF
LAND......................................B1
EXHIBIT C - WORK LETTER
AGREEMENT.........................................C1
EXHIBIT D - RULES AND
REGULATIONS.........................................D1
EXHIBIT E- FORM OF
SNDA...................................................E1
EXHIBIT F- CLEANING
SPECIFICATIONS........................................F1
EXHIBIT G- NON-DISCLOSURE AND CONFIDENTIALITY
AGREEMENT...................G1
EXHIBIT H - PARKING
AREA..................................................H1
LEASE AGREEMENT
THIS LEASE
AGREEMENT
(the
"Lease") is entered into as of the 12th day of
January, 2005, by and between Landlord and Tenant, as hereinafter
defined.
RECITALS:
A.
Blankenbaker
Business
Center Joint Venture,
a Kentucky joint venture
("BBCJV") comprised of NTS-Properties IV, Ltd., a Kentucky limited
partnership,
NTS-Properties
VII,
Ltd.,
a Florida
limited
partnership
and ORIG,
LLC,
a
Kentucky
limited
liability
company
(successor by merger with
NTS-Properties
Plus,
Ltd.)
entered into that certain
Lease dated April 28, 1994
pursuant to
which BBCJV leased to Prudential Service Bureau, Inc.
("Prudential") the entire
building
known
as
Blankenbaker
Business
Center
IA
("BBCIA")
containing
approximately
100,640
rentable
square
feet of
space
(the
"BBCIA
Lease").
Pursuant to that certain
Assignment
and
Assumption of Lease dated as of March
31,
1998,
Sykes
HealthPlan
Service
Bureau,
Inc.,
a
Kentucky
corporation
(formerly known as Prudential Service Bureau,
Inc.) assigned the BBCIA Lease to
Sykes HealthPlan Services, Inc., a Florida corporation,
now known as SHPS, Inc.
and the Tenant
under this Lease.
The term of the BBCIA Lease
expires July 31,
2005.
B.
NTS/BBC I, a Kentucky
limited
partnership,
entered into that certain
Lease dated as of April 28, 1994 pursuant to which NTS/BBCI leased
to Prudential
the
entire
building
known
as
Blankenbaker
Business
Center
IB
("BBCIB")
containing
approximately
60,049
rentable
square
feet of space
(the
"BBCIB
Lease"). Pursuant to that certain Assignment and Assumption of
Lease dated as of
March 31, 1998, Sykes HealthPlan
Service Bureau,
Inc., a Kentucky
corporation
(formerly known as Prudential Service Bureau,
Inc.) assigned the BBCIB Lease to
Sykes HealthPlan Services, Inc., a Florida corporation,
now known as SHPS, Inc.
and the Tenant under this Lease. The term of the BBCIB Lease
expires on July 31,
2005.
C. Landlord (as successor in interest to Blankenbaker Business
Center Joint
Venture and NTS/BBC I) and Tenant
desire to enter into a new Lease
pursuant to
which Landlord will lease each of the entire
buildings
consisting of BBCIA and
BBCIB to Tenant
pursuant to the terms and conditions
contained
herein,
which
Lease shall,
as of January 12, 2005,
replace and supercede the BBCIA Lease and
the BBCIB Lease,
which Landlord and Tenant agree shall terminate as of midnight
January 11, 2005.
Subject to all of the terms, provisions, covenants and conditions
set forth
herein, and in consideration of the mutual covenants, obligations
and agreements
contained in this Lease, Landlord and Tenant agree as follows:
1.
TERMS AND DEFINITIONS
.
As used in this Lease, the following terms shall
have the meanings set forth herein:
A.
Landlord
.
NTS Realty Holdings
Limited
Partnership,
a Delaware
limited
partnership
(as
successor in interest to
Blankenbaker
Business Center Joint Venture, and NTS/BBCI).
1
B.
Tenant
. SHPS, Inc., a Florida corporation.
C.
Commencement Date
. January 12, 2005
D.
Building
.
The
buildings
designated
as
Blankenbaker
Business
Center IA (consisting of
approximately
100,640
Rentable square
feet of space) and Blankenbaker Business Center IB (consisting of
approximately
60,049
Rentable
square
feet
of
space),
collectively,
located in the
development
known as Blankenbaker
Business Center, together with all interior areas common to both,
and the outdoor
courtyard
located
between such
buildings
and
enclosed by a gated entrance.
E.
Building Address
. 11405 Bluegrass Parkway,
Louisville,
Kentucky
40299
F.
Premises
.
Approximately
160,689 square feet of rentable area in
the Building as outlined on
Exhibit "A"
attached
hereto and made
a part hereof,
which
comprises
all of the rentable area in the
Building,
as
improved
in
accordance
with
the
Work
Letter
Agreement
attached hereto and made a part hereof as
Exhibit "C"
.
Within thirty (30) days after the Commencement Date, the Rentable
square
footage of the Premises
shall be confirmed by a licensed
architect
mutually agreed upon by Landlord and Tenant, and shall
be measured in
accordance
with
"Standard
Method for Measuring
Floor Area in Office
Building,"
published
by the
Secretariat,
Buildings,
Owners Managers Association
International (ANSI/BOMA
265.1-1996), approved June 7, 1996 ("BOMA").
G.
Land
.
That certain tract of land
situated in Jefferson
County,
Kentucky more particularly described on Exhibit B attached hereto
and made a part hereof and upon which the Building is located.
H.
Permitted
Use
.
Executive and other
general and
administrative
office use, as a customer
call
center,
as indoor
warehouse or
storage space, as supply or warehouse
distribution
center,
for
educational
purposes,
as
athletic
facilities,
for
medical
purposes
or as
medical
facilities,
or for any
other
similar
commercial use permitted by and conforming
with
applicable laws
(including
parking
requirements),
building
codes
and
use
restrictions
(but not including any
residential,
industrial or
agricultural
use),
and for purposes
incidental
and
ancillary
thereto,
in accordance with all applicable laws,
building codes
and use restrictions
recorded in the public records of Jefferson
County,
Kentucky
prior
to the date of this
Lease,
and for no
other purpose whatsoever.
I.
Annual
Base Rent
.
Years 1-5 $10.12 per
Rentable
square
foot;
Years 6-11 $11.42 per Rentable square foot.
2
So long as Tenant is not in
default
under
this
Lease,
Tenant
shall receive a credit
against Annual Base Rent due in the first
Lease Year of the Term equal,
in the aggregate,
to $300,000.00,
which
shall be
credited
against
Tenant's
Monthly
Base
Rent
Installment in the first (1st) three (3) months during the Term.
J.
Monthly Base Rent Installment
. Years 1-5- $135,514.39
Years 6-11-$152,922.37
If the Rentable
square
footage of the Premises as determined by
the calculation made pursuant to Section 1.F. hereof differs from
the approximate
number of Rentable square feet stated in Section
1.F. hereof, the Monthly Base Rent Installment
amounts set forth
above shall be appropriately adjusted to reflect such difference.
K.
Security Deposit
. None.
L.
Tenant's Proportionate Share
. 100%.
M.
Landlord's
Work
.
All of the
work to be
performed
in the
Premises by Landlord
pursuant to the provisions of the Work
Letter Agreement.
N.
Tenant's
Work
.
All of the work to be
performed
by Tenant
pursuant to the provisions of the Work Letter Agreement.
O.
Plans and Specifications
. The plans and specifications to be
provided by Tenant pursuant to the Work Letter Agreement and
pursuant to which the Tenant Finish will be completed.
P.
Tenant Finish
.
The aggregate of the Landlord's Work and the
Tenant's Work, as defined in the Work Letter Agreement.
Q.
Parking Area
. The parking
surfaces serving the Building and
located
on the Land and
outlined
on
Exhibit
H
attached
hereto and made a part hereof,
consisting of
approximately
842 parking spaces.
R.
Term
.
Eleven (11) years
commencing on January 12, 2005 and
ending
January 11, 2016 (the
"Expiration
Date"),
and any
Renewal Term(s), as defined in this Lease.
S.
Lease Year
. Each consecutive twelve (12) month period during
the Term commencing on the Commencement Date.
T.
Brokers
.
Tenant's Broker: Grubb & Ellis/Commercial Kentucky
("GE/CK").
Tenant's
Co-Broker:
Cushman & Wakefield (to be
paid by GE/CK).
3
U.
Operating
Expense Stop
.
$2.62 per Rentable
square foot of
space in the Building.
V.
Tenant
Improvement
Allowance
.
$2,000,000.00
to
be
made
available
to
Tenant
upon
the
Commencement
Date of this
Lease,
and to be
held in
Landlord's
Escrow
Account
and
disbursed to Tenant pursuant to the terms and conditions set
forth in the Work Letter Agreement.
2.
PREMISES AND COMMON AREAS
.
A.
Premises
.
Landlord
hereby leases to Tenant and Tenant hereby
leases from Landlord, the Premises on the terms and conditions
contained herein.
Tenant shall also have the exclusive right to use the outdoor
courtyard located
between the buildings
comprising
the Building and enclosed by a gated entrance
and may limit access to such
courtyard
to its
employees,
agents,
guests and
invitees subject to Landlord's rights to enter as set forth in this
Lease.
B.
Common
Areas
.
Landlord
grants to Tenant the
non-exclusive
right to use the
sidewalks,
driveways
and
other
areas of the Land
directly
benefiting
the
Building in common with others (the "Common
Areas").
Landlord
represents,
warrants
and
covenants
that
throughout
the Term of this
Lease
Tenant, and its customers,
invitees and employees, shall have access to and the
right to use the driveways
and
entranceways
currently
used by Tenant and its
customers,
invitees, and employees to access the Premises and the Parking
Area,
and Landlord,
and its successors and assigns,
shall not alter or obstruct such
driveways and entranceways
without prior reasonable notice to Tenant, and shall
not alter such driveways or entranceways in a manner which would
reduce Tenant's
Parking
Area
(as
such
term
is
defined
below)
or
permanently
impair
or
unreasonably
interfere
with Tenant's
access to the parking area or the Leased
Premises.
Landlord
agrees to maintain the Common Areas in good
condition
and
repair in a manner
consistent with other comparable office buildings located in
the Blankenbaker Industrial Park area in Louisville, Kentucky.
C.
Reserved
Rights
.
Landlord
reserves
the right from time to
time, without unreasonable interference with Tenant's Permitted Use
or enjoyment
of the
Premises,
to alter or
relocate
any Common Area
facility
serving the
Building, except as otherwise provided herein.
D.
Parking
.
Tenant and its employees and visitors shall have the
non-exclusive
right
to
use,
without
charge,
any
of
the
surface
parking
facilities
at the Building
(which
parking is outlined on Exhibit H hereto and
consists of
approximately
842 parking spaces (the "Parking
Area")).
Landlord
represents,
warrants
and
covenants
that
throughout
the Term of this Lease,
Tenant, and its customers,
invitees and employees, shall have access to and the
right to use the Parking Area,
and Landlord,
and its
successors
and assigns,
shall not alter or reconfigure
such Parking Area without Tenant's prior written
consent (except for such
alterations and
reconfigurations
which do not reduce
the Parking
Area).
Landlord may reserve
spaces for
visitors,
small cars and
handicapped individuals, and Tenant and its employees and visitors
shall park in
such parking
spaces
accordingly.
Landlord
reserves the right to
temporarily
close
a
portion
of the
parking
areas
in
order
to make
repairs,
perform
maintenance or replace the parking
surface and shall use reasonable
efforts to
minimize interference with Tenant's use of the
4
Premises.
Tenant shall not use the parking
areas in any manner for the storage
of materials,
parts,
supplies,
trailers,
equipment or
machinery,
nor shall
Tenant use the parking
areas in any manner
which could
obstruct or
interfere
with the rights or safety of other
tenants or
persons.
Landlord
agrees
that
during the Term of this Lease they shall not grant to any owner of
the land upon
which the BBCII
building is located any further rights to use the parking areas
outlined on Exhibit H.
3.
TERM, CONSTRUCTION AND POSSESSION
.
A.
Term
.
The Term shall commence on the
Commencement
Date and shall
continue in full force and effect
until the
Expiration
Date,
unless
earlier
terminated as provided herein.
B.
Option to Renew
.
Landlord
grants
Tenant the option to renew this
Lease with
respect to the entire
Premises for one (1) period of five (5) years
(a "Renewal
Term");
provided
that this Lease is in full force and effect,
and
Tenant shall not be in Default or shall not have displayed a
regular
pattern of
default in the performance of its duties and obligations under this
Lease on the
date
Tenant
elects to renew and on the date any Renewal
Term is to
commence.
Each Renewal Term shall begin on the first day following
the
expiration of the
Initial Term or the then current
Renewal
Term. To exercise the option to renew
granted herein,
Tenant shall give written notice to Landlord of its exercise of
the option to renew no more than
sixteen
(16)
months and no less than
twelve
(12) months
prior to the
expiration
of the Initial
Term or the then
current
Renewal Term. All of the terms, covenants and conditions contained
in this Lease
for the
Initial
Term shall
remain in full
force and
effect and shall
apply
during a Renewal
Term,
except
that the Annual Base Rent,
Tenant
Improvement
Allowance and Operating
Expense Stop shall be negotiated
between
Landlord and
Tenant for the Renewal
Term.
Any Transfer in violation
of the
provisions
of
Paragraph
22 of this Lease shall
automatically
terminate
Tenant's
Option to
Renew
hereunder as of the date which is one day prior to the effective
date of
such Transfer.
C.
Construction of Improvements to Premises and Building
. The Premises
and Building
shall be improved in accordance
with the terms of the Work Letter
Agreement and the Tenant Finish shall be performed by Landlord
and/or Tenant as
set forth in the Work Letter Agreement. The cost of construction of
improvements
exceeding
the
Approved
Plans shall be paid by Tenant as set forth in the Work
Letter Agreement.
D.
Possession
.
Tenant has
possession of the Premises as of the date
hereof under the BBCIA Lease and the BBCIB Lease, and Tenant's
possession shall
continue
notwithstanding the termination of the BBCIA Lease and the BBCIB
Lease
on January 11,
2005,
pursuant to this Lease on the
Commencement
Date of this
Lease.
E.
2004 Rent
Refund
.
So long as Tenant is not in
default
under the
BBCIA
Lease or the BBCIB Lease prior to the
Commencement
Date,
or under this
Lease,
Tenant shall be entitled to payment by Landlord on the Commencement
Date
of an amount
representing
a refund of a portion of Tenant's 2004 rent payments
under the BBCIA Lease and BBCIB Lease in the sum of $300,000.00.
5
4.
ANNUAL BASE RENT; OPERATING EXPENSES
.
A. Tenant
shall pay the Annual Base Rent to Landlord at the
location
designated from time to time by Landlord
pursuant to Paragraph 6 hereof, in the
amount of the
Monthly
Base Rent
Installment
from and after the
Commencement
Date,
in advance on or prior to the first (1st) day of each and every
calendar
month
during
the
Term
without
demand,
deduction,
abatement,
set-off,
counterclaim or prior notice;
provided,
however, that so long as Tenant is not
in Default under this Lease,
Tenant shall receive a credit
against Annual Base
Rent due during the first Lease year of the Term
equal,
in the
aggregate,
to
$300,000.00,
which amount shall be credited
against Tenant's Monthly Base Rent
Installment
for the first (1st) three (3) months during the Term
commencing in
January, 2005 until such credit is exhausted. If the Term commences
or ends on a
day other than the first day of a month,
then the Monthly Base Rent Installment
for such partial month period shall be prorated on the basis of
thirty (30) days
to the month and shall be paid on the first day of such
partial
month.
In the
event any Federal,
State or local
governmental body imposes any tax or levy on
any Rent,
Tenant hereby agrees to pay as additional rent the amount of any
such
tax or levy, and such tax or levy will be added to the Rent.
B. The
Annual
Base
Rent
shall
be
adjusted
from
time to time in
accordance
with this
Paragraph
4 to
reflect
increases
in the
expenses
of
operating
the
Building
("Expenses").
The
Annual
Base Rent,
including
the
adjustments
made
pursuant to this
Paragraph
4 and any other
amounts due and
owing from Tenant to Landlord under this Lease,
is referred to in this Lease as
the "Rent." If the Expenses (as such term is defined below) in any
Lease Year or
partial Lease Year after the first Lease Year exceed the Operating
Expense Stop,
Annual
Base Rent shall be
adjusted
on an annual
basis,
as
provided
in the
immediately preceding sentence, to include Tenant's
Proportionate Share of such
excess.
After the end of each
calendar
year during the Term,
but in no event
later than one
hundred
twenty
(120) days after the end of each such
calendar
year, Landlord will provide Tenant with a written notice
("Statement")
setting
forth the
amount
of any
adjustments
to Annual
Base
Rent,
together
with a
statement of Expenses for the previous
calendar
year.
Landlord
agrees to use
reasonable
efforts to
deliver
the
Statement
to Tenant by March 31st of each
calendar
year.
Within
thirty (30) days
following
receipt of the
Statement,
Tenant shall pay to
Landlord:
[i] the
adjustment
to Annual Base Rent for the
previous calendar year after credit for any estimated
payments which Tenant has
made pursuant to this Paragraph; and [ii] an estimated adjustment
to Annual Base
Rent for the months which have lapsed in the then-current calendar
year based on
the previous
calendar
year's
increase in Expenses and
Landlord's
good faith
projection
of the increase in Expenses
during the
then-current
calendar year
after
credit
for any
estimated
payments
made
by
Tenant
pursuant
to this
Paragraph.
Commencing with the month following the month in which the
Statement
is dated and
continuing
until
such time as Tenant
receives
Landlord's
next
Statement,
the
Monthly
Base Rent
Installments
shall be
adjusted to include
Tenant's
Proportionate Share of any Expenses in excess of the Operating
Expense
Stop based on Expenses for the previous
calendar year and Landlord's good faith
projection of the increase in Expenses for the
then-current
calendar year. The
adjusted
portion of the payments of Annual Base Rent shall be credited
against
the actual Expenses as shown in Landlord's next Statement. If the
next Statement
shows that Tenant has overpaid
and if Tenant is not then in Default
under this
Lease, Landlord shall credit such overpayment against the next
accruing payments
of Rent until the overpayment is reduced to
6
zero.
If the next
Statement
shows that Tenant has
underpaid,
Tenant
shall,
within ten (10) days of
receipt of such
Statement,
pay to
Landlord
the full
amount of such
underpayment.
The
obligation to pay the
adjustments to Annual
Base Rent shall survive any termination of this Lease.
Notwithstanding any other
provision
herein to the contrary,
it is agreed that in the event the Tenant is
not occupying the entire Building
during any partial
calendar year or any full
calendar year, an adjustment shall be made by Landlord in computing
the Expenses
for such year so that the Expenses shall be computed for such year
as though the
Building
had been fully
occupied by Tenant
during such
calendar
year and as
though the entire
Building had been provided
with the building
services to be
provided
Tenant under this Lease during such calendar year, and the Annual
Base
Rent
payable
by
Tenant
shall in no event be less than the
Annual
Base Rent
specified in Paragraph 1 hereof. Landlord agrees not to collect
from Tenant more
than 100% of Expenses on a fully and
grossed-up
basis in any one calendar year
during the Term.
Failure of Landlord
to provide a
Statement
within a certain
period of time after the end of a calendar year shall not
constitute a waiver by
Landlord
of its rights to payment
due
pursuant
to this
Paragraph
4 and the
obligations
of
Tenant
hereunder
shall
survive
the
expiration
or
other
termination of this Lease.
C.
Operating Expenses
. "Expenses" shall mean all expenses and costs of
operating and
maintaining
the Building,
including,
without
limitation,
the
following costs:
[a] wages of all employees
providing labor and/or services in
connection with the Building (including employment taxes and fringe
benefits) to
the extent of their services in connection with the Building
(provided, however,
the
applicable
portion of the cost of salaries
of
management
and
executive
personnel who perform
services in connection with the Building shall not exceed
five percent (5%) of the annual
Building gross revenue);
[b] janitorial
labor
and materials; [c] electricity, gas, sewer, water, telephone, trash
disposal and
other utilities including,
but not limited to any cable, DSL or WI-FI services,
to the
extent
not
directly
metered
and
billed to Tenant by the
applicable
utility
company;
[d] maintenance and repairs
(including,
but not limited to,
maintenance
and
service
contracts
for
HVAC
systems,
elevators
and
other
mechanical,
electrical
or
plumbing
systems);
[e]
landscaping,
parking and
service road
maintenance and repair;
[f] insurance
premiums;
[g] any and all
real
estate
taxes
and/or
personal
property
taxes
assessed on the Land and
Building and personal property of Landlord
therein,
including any increases in
real
estate
taxes,
and any
increases
realized
when any partial or full tax
relief
which
presently
may be afforded to the Building
expires,
and further
including
any tax
imposed
as a
substitute
for or
supplement
to
presently
existing
real estate
and/or
personal
property
taxes,
and including any tax
assessed or imposed upon, against or on account of the Rent
reserved
hereunder,
but excluding any tax in the nature of income or similar
taxes,
or any penalty
or interest
assessed
due to
Landlord's
late
payment of any such taxes;
[h]
reasonable
expenses of Landlord in exercising
their
judgment in attempting to
reduce or limit real estate and/or
personal
property
taxes (any refunds to be
credited
against
such taxes and Expenses in the year
received);
[i] costs of
repairs that extend the life of the
Building and costs of capital
improvements
to the
extent
necessary
to
comply
with
applicable
governmental
rules and
regulations (including,
but not limited to, the Americans with Disabilities Act
of 1990,
as amended),
such costs to be amortized
over the useful life of said
improvements utilizing a 10% discount factor; [j] expense of
Building management
fees,
provided such expense shall not exceed three percent (3%) of total
annual
Building gross revenue in any calendar
year; [k] capital
expenses which reduce
any component cost of Expenses (such cost to be reasonably
amortized by Landlord
and Expenses to include only the cost as so amortized by Landlord
during the
7
calendar year for which such
computation
is made);
[l] any tax or levy on any
Rent imposed by a Federal,
State or local governmental body except for taxes in
the nature of an income or similar tax; and [m] permit, licensing
and inspection
fees;
Expenses
shall not include:
[i] costs of
alterations,
renovations,
improvements or decorations
(including permits,
licensing and inspection fees)
of any other
tenant's or
occupant's
premises or vacant
space in the Building
(excluding
Common Areas);
[ii]
principal and interest
payments or other debt
service
payments,
or, if
applicable,
ground lease
payments,
including
any
payments
made
on
loans
secured
by the
Building;
[iii]
costs
of
capital
expenditures or capital
improvements (except as provided above under inclusions
in Expenses); [iv] depreciation of the Building; [v] legal fees,
brokerage fees,
leasing
commissions,
advertising
costs or other related expenses
incurred by
Landlord in connection with the leasing of space in the Building;
[vi] repairs,
alterations,
additions, improvements or replacements made to rectify or correct
any defect in the original
design,
materials or
workmanship
of the Building;
[vii] damage and repairs attributable to fire or other casualty;
[viii] damage,
repairs and other costs
necessitated by the negligence or willful misconduct of
Landlord or Landlord's
employees or agents;
[ix] Landlord's
general
overhead
expenses not attributable to the Building;
[x] legal fees,
accounting fees and
other expenses incurred in connection with disputes with tenants or
occupants of
the Building or associated with tenants or the defense of
Landlord's title to or
interest in the Building; [xi] costs incurred due to Landlord's
violation of any
lease in the Building or due to the
violation by tenants of the Building of any
terms and conditions of their leases; [xii] amortization, debt
service, or other
payments
on
loans
made
by
Landlord;
[xiii]
costs
of
Landlord's
Work in
accordance
with the terms of the Work Letter
Agreement
and costs
incurred in
performing
work or furnishing
services for individual
tenants,
which work or
services are in excess of work and services provided to such
tenants under their
respective
leases;
[xiv] all costs incurred which are subject to reimbursement
by other tenants of the Building or other parties, including
expenses for repair
or replacement paid by proceeds of insurance or condemnation
awards; [xv] costs
of Building security personnel and materials
necessary for the normal operation
of
such
security
personnel;
[xvi]
costs
of
Tenant's
separately
metered
utilities:
[xvii] costs incurred in the investigation,
monitoring,
abatement,
remediation
or removal of hazardous
materials
(unless
caused or permitted by
Tenant in violation of the terms of this Lease);
[xviii] costs
recoverable
by
Landlord pursuant to insurance
policies;
[xix] costs resulting from Landlord's
default under this Lease;
[xx] costs resulting from deficiencies in the design,
construction
or
workmanship
of
Landlord's
Work to the extent of any express
warranties therefor; [xxi] advertising,
legal (except as expressly provided for
herein),
marketing
and
promotional
expenditures;
[xxii]
salaries
or other
compensation
paid to asset
managers,
leasing
agents,
directors or executive
officers of Landlord above the rank of manager or not involved in
the day-to-day
management of the Building;
[xxiii]
penalties,
fines late payment
charges or
interest
incurred
as a result of late
payment of any
Expenses
not caused by
Tenant, and violation of any law, by Landlord;
[xxiv] reserves;
[xxv] costs of
goods and /or services
supplied by Landlord or by affiliates of Landlord to the
extent that the
resulting
cost of any such goods and/or
services
exceeds the
cost of similar
goods
and/or
services
when
rendered by
unaffiliated
third
parties on a competitive basis; [xxvi] costs relating to Landlord's
acquisition
or sale of
sculpture,
painting
or
other
objects
of art;
[xxvii]
costs of
Landlord's
charitable
and political
contributions;
and [xxviii] any expenses
that
Landlord
could have avoided by taking
advantage of discounts
offered by
suppliers and vendors or by
competitively
bidding any of the services by which
Expenses
are
incurred
among the
available
suppliers
and
vendors.
For any
applicable year that begins prior to the Commencement
8
Date or ends after the expiration date of this Lease, the amount of
Expenses due
for that
calendar
year shall be
apportioned
on a per diem basis so that only
that
portion
attributable
to the
portion of such
calendar
year that occurs
during the Term of this Lease shall be payable by Tenant.
Notwithstanding
anything
contained
in
Subparagraphs
4B.
and 4C.,
Landlord
agrees that
Expenses
shall not increase by more than 4% per Rentable
square foot per calendar
year on a
cumulative
basis over
Tenant's
Operating
Expense Stop; provided,
however, the following Expenses shall not be subject to
any such limitation on increases:
real estate taxes, property taxes, insurance,
snow and ice removal,
utilities, and special,
non-customary requests by Tenant
or its agents or employees for repair and/or replacement of already
operational
items.
D.
Audit of
Building
Expenses
.
Within
thirty
days (30) days after
receipt by Tenant of the
Statement,
Tenant may conduct an audit of
Landlord's
Building
Expense
records
on a one
time
per
calendar
year
basis
for
the
immediately
preceding
calendar year's
Expenses only.
Tenant and its auditors
shall be
provided
access to
Building
Expense
records
for such
immediately
preceding
calendar
year upon
reasonable
advance
written
notice to Landlord
during the regular office hours of NTS Development Company ("NTS").
Tenant shall
bear the entire
costs of such audit
except as
provided
below.
Tenant
shall
deliver to Landlord a copy of such audit results within five (5)
days of receipt
by Tenant.
No audit shall be
conducted
at any time during
which Tenant is in
Default under this Lease. No sub-tenant,
assignee or any other person or entity
shall have the right to conduct an audit of Landlord's Building
Expenses, unless
such person or entity
unless the
Transfer
was
permitted
or
consented to by
Landlord
pursuant to
Paragraph
22 of this Lease and is in
possession
of the
Premises for at least part of the calendar year for which Building
Expenses are
being audited.
If the estimated amount of Expenses paid by Tenant for such year
exceeds Tenant's
Proportionate
Share of actual Expenses,
Landlord shall apply
such
excess
as a lump sum to the next
accruing
payment
(or,
if
necessary,
payments)
of Rent.
In the event such audit
reflects
that the
statement
has
overstated Tenant's Proportionate Share of Expenses for such
calendar year by at
least 5%, Landlord shall pay reasonable costs of such audit.
E.
Janitorial
Services
.
Notwithstanding
any other provision of this
Lease to the
contrary,
Tenant
shall be
responsible
for all
janitorial
and
day-porter
services to the Premises five (5) evenings per week (Monday
through
Friday),
which
shall at a
minimum,
include
the
provision
of all
standard
restroom
supplies in the Building
restrooms
(both
general
usage and private
restrooms)
and meet the
standards
set forth on Exhibit F attached
hereto and
made a part hereof by this reference.
5.
USE
.
Tenant
shall use and occupy the Premises
only for the
Permitted
Use, and for no other business or purpose
without the prior written
consent of
the
Landlord.
Tenant
shall not use or occupy the Premises in violation of any
applicable
law,
rule,
regulation
or
ordinance
or
certificate
of use
and
occupancy issued for the Building, and shall immediately
discontinue any use of
the Premises which is declared by any governmental authority having
jurisdiction
to be a violation of law, rule,
regulation or ordinance or of said
certificate
of use
and
occupancy.
As a
material
consideration
to
this
Lease,
Tenant
covenants
that
Tenant
shall not permit the
Premises
to be
occupied
by any
person,
firm or
corporation
other than the Tenant
whose name appears on this
Lease unless such occupancy is in compliance
with the terms of Paragraph 22. of
this Lease
regarding
Transfers.
Tenant shall comply with any direction of any
governmental
9
authority having
jurisdiction
which shall, by reason of the nature of Tenant's
use or occupancy of the
Premises,
impose any duty upon Tenant or Landlord with
respect to the Premises or with respect to the use or occupation
thereof. Tenant
will,
at its
own
cost,
promptly
comply
with
and
carry
out
all
orders,
requirements
or conditions
now or hereafter
imposed upon it by the ordinance,
laws and/or
regulations of the
municipality,
county and/or state in which the
Premises are located,
whether required of Landlord or otherwise, in the conduct
of Tenant's business.
Tenant will indemnify and hold Landlord harmless from all
penalties,
claims and demands
resulting from Tenant's failure or negligence in
this
respect.
Tenant
shall not do or permit to be done
anything
which
will
invalidate
or
increase
the cost of any fire,
extended
coverage or any other
insurance policy covering the Building and/or property located
therein and shall
comply
with
all
rules,
orders,
regulations
and
requirements
of the
Fire
Department
or Fire
Marshall or any other person or
organization
performing a
similar
function.
Tenant
shall
promptly
upon demand
reimburse
Landlord as
additional rent for any additional premium charged for any such
policy by reason
of Tenant's
failure to comply with the
provisions of this
Paragraph 5. Tenant
shall not cause,
maintain or permit any nuisance in, on or about the
Building.
Tenant
shall not
commit or
suffer
to be
committed
any waste in or upon the
Premises.
Notwithstanding
the
foregoing,
Tenant
shall not be
obligated
to
correct
any
structural
defects
in
the
Building,
or to
make
any
capital
improvements or structural
repairs to the Building unless such
improvements or
repairs are required by any federal, state or local laws, statutes,
ordinances,
rules, regulations or requirements as a result of Tenant's
particular use of the
Premises.
6.
PAYMENTS AND NOTICES
.
A.
Notice and Address
Provisions
.
All Rent and other sums payable by
Tenant to Landlord hereunder shall be paid to Landlord at the
address designated
by
Landlord
in
Paragraph
1 above
or at such
other
place as
Landlord
may
hereafter
designate
in writing.
Any notice
required or permitted to be given
hereunder
must be in writing and may be served
personally or by a national air
courier service for next business day delivery, or by United States
certified or
registered mail, return receipt
requested,
addressed to Tenant at the Building
or to Tenant
at its
address
designated
in
Paragraph
1; and shall be deemed
delivered when personally delivered, within one (1) business day
after deposited
with a national
air courier
service or within
three (3)
business
days after
deposited in the United States Mail in
accordance
with the
foregoing.
Either
party may by ten (10) business days prior written notice to the
other, specify a
different
address for notice purposes except that Landlord may in any event
use
the Premises as Tenant's address for notice purposes. If more than
one tenant is
named under this Lease, service of any notice upon any one of said
tenants shall
be deemed as service upon all of said tenants.
B.
Payments; Late Charges
. Tenant shall pay all Rent and other sums of
money as shall
become due and payable by Tenant to Landlord in lawful
money of
the United States of America in the times and the manner provided
in this Lease,
without demand,
deduction,
abatement,
set-off,
counterclaim or prior notice,
except as specifically
provided for in this Lease.
Tenant hereby
acknowledges
that late
payment to
Landlord of Rent or other sums due
hereunder
will cause
Landlord to incur costs not
contemplated by this Lease,
the exact amount which
would be
extremely
difficult to
ascertain.
If any Rent or other sum due from
Tenant is not
received
on or before
its due date,
then
Tenant
shall pay to
Landlord
immediately upon Landlord's demand therefore a service charge equal
to
the lesser of five (5%)
percent of such
overdue
amount or the fee
charged by
Landlord's
lender as a late fee on its mortgage
loan
affecting
the Premises,
plus
10
any attorneys' fees and costs incurred by Landlord by reason of
Tenant's failure
to pay Rent and other charges due hereunder.
Additionally,
all Rent under this
Lease shall bear interest from the
expiration of any cure period
applicable to
such payment
until paid at the lesser of twelve
percent
(12%) per annum,
the
default rate charged to Landlord by its lender under its mortgage
loan affecting
the Premises, or the maximum non-usurious rate of interest then
permitted by the
applicable
laws of the state in which the
Building
is
located
or the United
States of America,
whichever
shall permit the higher
nonusurious
rate,
such
interest
being in addition to and
cumulative
of any other rights and remedies
which
Landlord
may have
with
regard
to
failure
of Tenant to make any such
payments under this Lease.
7.
BROKERS
.
Landlord and Tenant each
represents and warrants to the other
that
they
have not
dealt
with any
real
estate
broker
or
salesperson
in
connection
with the
negotiation
or
execution
of this Lease
(other than NTS
Development
Company who represented
Landlord and GE/CK and Cushman & Wakefield
who represented Tenant).
Landlord shall pay to GE/CK a renewal commission equal
to Four Hundred Thousand Dollars ($400,000.00),
payable within thirty (30) days
after the full
execution of this Lease by Landlord
and Tenant.
GE/CK shall be
solely
responsible for the payment of any
co-brokerage
fees,
including those
payable to Cushman &
Wakefield,
if any.
Tenant
represents
and
warrants
to
Landlord
that there are no other
brokers',
finders' or agents'
fees due with
respect to this transaction or Tenant's
previous attempts to lease or buy space
for use as its offices and Tenant shall
indemnify
and hold
harmless
Landlord
from and
against
any and all
costs,
expenses,
reasonable
attorneys'
fees,
liability or claims for any
compensation,
commission or charges claimed by any
real estate broker or agent (other than those named above)
alleged to have been
incurred by Tenant. Landlord represents and warrants to Tenant that
there are no
other brokers',
finders' or agents' fees due with respect to this
transaction,
and Landlord shall
indemnify and hold harmless
Tenant from and against any and
all costs,
expenses,
reasonable
attorneys' fees,
liability or claims for any
compensation,
commission or charges
claimed by any real estate broker or agent
(other than those named above) alleged to have been incurred by
Landlord.
8.
HOLDING
OVER
.
If,
without
the
execution
of a new Lease or written
extension
or written
consent
of
Landlord,
Tenant
shall hold over after the
expiration of the Term, then
notwithstanding the provisions of K.R.S.
383.160,
Tenant
shall be deemed to be
occupying
the Premises as a Tenant from month to
month,
which tenancy may be terminated by Landlord at any time upon thirty
(30)
days written notice to Tenant. No holding over by Tenant after the
expiration or
termination
of this Lease shall be
construed to extend or renew the Term or in
any other manner be construed as permission by Landlord to
holdover. During such
hold-over
tenancy,
Tenant
shall:
[a] pay to Landlord the greater of: (i) one
hundred twenty-five percent (125%) of the Rent payable for the
month immediately
preceding the
commencement
of the holding over period
computed on a per month
basis; or (ii) one hundred twenty-five percent (125%) of the
then-current market
rent for the Premises or similar
premises in the
Blankenbaker
Industrial Park
area in Louisville,
Kentucky, unless Landlord notifies Tenant in writing to the
contrary;
and [b] be bound by all the terms, covenants and conditions as
herein
specified as far as applicable notwithstanding the foregoing. If
Tenant fails to
surrender the Premises upon the
termination
of this Lease,
in addition to any
other
liabilities to Landlord
arising there from,
Tenant shall
indemnify and
hold
Landlord
harmless
from loss or liability
resulting
from such
failure,
including any claims made by any succeeding tenants founded on such
failure.
11
9.
TAXES ON PERSONAL
PROPERTY;
SALES, USE AND EXCISE TAXES
.
Tenant shall
pay at least
ten (10) days
before
delinquency
all
taxes,
charges
or other
governmental
impositions
assessed
against
or
levied
upon
any of
Tenant's
personal property, equipment or trade fixtures located in or about
the Premises.
Tenant
shall also pay
before
delinquency
any and all taxes and
assessments,
license,
business,
occupation or other taxes, fees or charges levied, assessed
or imposed upon
Tenant's
business
operations
in the
Premises.
Tenant shall
furnish Landlord upon demand with
satisfactory
evidence of payment of all such
amounts by Tenant.
10.
ALTERATIONS AND IMPROVEMENTS; REPAIRS AND MAINTENANCE
A.
Acceptance
of
Premises
.
Tenant
has
occupied
the
Premises
continually
under
the
BBCIA
Lease
and
the
BBCIB
Lease
and
has
had the
opportunity to completely
inspect the Premises and accepts the Premises and the
Building in its "AS IS,
WHERE IS" and with all faults in their
condition as of
the
Commencement
Date,
subject to the specific terms and requirements of this
Lease and the Work Letter Agreement.
Except as expressly provided in this Lease
or in the Work Letter
Agreement,
Landlord shall have no obligation to furnish,
equip or improve
the
Premises or the
Building.
Upon the
Commencement
Date,
Tenant's occupancy of the Premises and the Building shall be
conclusive evidence
that Tenant
accepts the
Premises
and the
Building as being
suitable for its
intended purpose and in good and satisfactory
condition,
acknowledges that the
Premises and the Building comply fully with Landlord's covenants
and obligations
under this
Lease,
except as
expressly
provided
herein or in the Work Letter
Agreement,
and waives any defects in the Premises and/or the Building except
as
expressly provided in this Lease.
B.
Improvements and Alterations
.
Tenant shall not make or allow to be
made
(except
as
otherwise
provided
in
this
Lease
or in the
Work
Letter
Agreement)
any
improvements,
alterations
or physical
additions in or to the
Premises or the
Building
("Alterations")
without
first
obtaining
the prior
written consent of Landlord,
including
Landlord
written
approval of Tenant's
contractor(s)
and of the plans,
working drawings and
specifications
relating
thereto;
provided,
however, Tenant may make non-structural
Alterations to the
Premises
without
Landlord's
consent unless such Alteration
involves the HVAC
system, the electrical system or the telephone and
telecommunication
systems in
the Building
(except that
Landlord's
consent
shall not be required for minor
adjustments
or
additions to such
systems
which do not
increase
capacity or
decrease efficiency or cause an increase in our insurance rates or
our liability
under the National
Electric Code),
or is for Alterations
costing in excess of
$10,000.00 in the aggregate. Landlord agrees to notify Tenant of
its approval or
disapproval
of such
plans for
Alterations
within ten (10)
business
days of
receipt of Tenant's
plans.
Any
disapproval
notice shall
include
Landlord's
suggestions
for changes to such plans.
Approval by Landlord of any of Tenant's
drawings,
plans and specifications prepared in connection with any
alterations,
improvements,
modifications
or additions to the Premises or the Building which
require
Landlord's consent shall not constitute a representation or
warranty of
Landlord
as to
the
adequacy
or
sufficiency
of
such
drawings,
plans
and
specifications,
or
alterations,
improvements,
modifications
or additions to
which they relate,
for any use,
purpose or condition,
but such approval shall
merely be the consent of Landlord as
required
hereunder.
Except as
otherwise
expressly
provided
in the
Work
Letter
Agreement,
any and
all
furnishing,
equipping
and improving
of, or other
Alteration
and addition to the Premises
and/or the Building shall be: (i) made at Tenant's sole risk,
cost and expense;
(ii) performed in a
12
prompt,
good and
workman-like
manner using
materials
of similar
quality to
materials used in the Tenant Finish or otherwise existing in the
Building; (iii)
constructed in accordance with all plans and specifications
approved in writing
by
Landlord,
if required,
prior to the
commencement
of any such work;
(iv)
prosecuted
diligently
and
continuously
to
completion
so
as
to
minimize
interference with the performance of Landlord's
obligations under this Lease or
any
mortgage
or ground
lease
covering
or
affecting
all or any part of the
Building or the Land and any work being done by contractors
engaged by Landlord
with
respect
to or in
connection
with the
Building;
and (v)
performed
by
contractors
approved in writing by Landlord.
Tenant shall notify Landlord upon
completion of such
alterations,
improvements,
modifications
or additions and
Landlord may inspect same for workmanship and compliance with the
approved plans
and
specifications,
if any.
With
respect to any
Alteration
which
requires
Landlord's
consent
hereunder,
Tenant and its contractor shall comply with all
reasonable
requirements
Landlord may impose on Tenant or its
contractor
with
respect to such work (including,
but not limited to,
insurance,
indemnity and
bonding
requirements),
and shall
deliver to
Landlord a complete
copy of the
"As-Built" or final plans and
specifications
for all
Alterations
or physical
additions
so made in or to the Premises
and/or the Building
within sixty (60)
days after
completing the work.
Tenant shall not place safes,
vaults,
filing
cabinets
and
systems,
libraries
or
other
excessively
heavy
furniture
or
equipment on the second floor of the Building
without
Landlord's prior written
consent.
C.
Title
to
Alterations
.
All
alterations,
physical
additions,
modifications or improvements in or to the Premises (including
fixtures,
other
than trade fixtures) shall, when made, become the property of
Landlord and shall
be
surrendered
to Landlord
upon
termination
or
expiration of this Lease or
termination of Tenant's
right to occupy the Premises,
whether by lapse of time
or otherwise,
without any payment,
reimbursement
or
compensation
therefore;
provided,
however,
that (i) Tenant shall retain title to and shall remove from
the Premises movable equipment, furniture or trade fixtures owned
by Tenant; and
(ii)
Tenant
shall
repair
any damage
caused by
removal of same.
The rights
conferred to Landlord under this Section 10(C.) shall be in
addition to (and not
in conflict
with) any other
rights
conferred
on
Landlord by this Lease,
in
equity or at law.
D.
Repairs by Landlord
.
Landlord shall
operate,
maintain and repair
the
Building
(and make
such
capital
improvements
and
replacements
to the
Building)
in a manner
consistent
with the
condition to which the Building is
renovated by
Landlord's
Work and Tenant's
Work when such Work is completed as
contemplated
by this Lease and the Work
Letter
Agreement,
from and after the
date of completion of such Work,
reasonable wear and tear excepted,
and except
for items which are
damaged
due to the
negligence
or willful
misconduct
of
Tenant, its agents, contractors,
employees, licensees, contractors or invitees;
and shall repair all damage to the Building and the
Premises,
reasonable
wear
and tear excepted,
and unless caused by the negligence or willful misconduct of
Tenant, its agents,
contractors,
employees,
licensees or invitees.
Except as
provided in Section 10.E. below, Landlord is also obligated to
perform all other
maintenance
and repairs
necessary or
appropriate
to cause the Premises to be
maintained
in
good
condition
(reasonable
wear
and
tear
excepted)
and in
compliance with all applicable
laws,
rules,
regulations
and ordinances.
All
expenses in
connection
with the
operation
and
maintenance
of the
Building
pursuant
to
this
Paragraph
10
shall
be part
of the
Building's
Expenses,
including
but not
limited
to
those
items
listed
below
,
unless
otherwise
indicated
below or unless
specifically
excluded
from
Expenses
pursuant
to
Paragraph 4C. hereof:
13
(i) Landlord agrees that following the
Commencement
Date, they shall
replace,
at their cost,
any HVAC units or HVAC items which are either ten
(10)
years old or older,
become
defective,
or are
incapable
of repair
during
the Term of the
Lease,
except
for any
supplemental
HVAC
units
installed
by Tenant and any HVAC units
serving
the
kitchen
area of the
cafeteria located in the Premises.
Landlord's
obligations to replace such
HVAC units or HVAC items shall commence on or after the
Commencement
Date
with the initial repair and
replacement of the HVAC units complete
within
sixty (60) days after the Commencement
Date, and such replacement shall be
affected
by
Landlord
as
necessary
in
accordance
with
above-stated
standards.
Also,
effective as of the Commencement Date, Landlord shall be
responsible
for
maintenance
and repair of the HVAC system except for any
supplemental
HVAC units installed by Tenant and any HVAC units serving the
kitchen
area
of the
cafeteria,
such
costs
to be
included
as part of
Building Expenses;
(ii) Landlord shall use its best efforts (without incurring
additional
costs to
Landlord)
to assist
Tenant in
achieving
any
electrical
cost
reductions under available programs;
(iii)
Effective
as of
the
Commencement
Date,
Landlord
shall
be
responsible
for
all
repairs
and
maintenance
to all
elevators
in the
Building, with such costs to be included in Expenses for the
Building;
(iv) All entrances to the Building
contain
after-hours
primary card
readers which shall be maintained
and repaired by Landlord,
such costs to
be included in Expenses; and
(v) In order to effectuate Landlord's required maintenance and
repairs
for the Building,
Landlord shall have an on-site maintenance
employee for
the Building for an eight (8) hour workday (7:30 a.m. - 4:00 p.m.),
Monday
through Friday,
excluding
Holidays (as such term is defined
herein),
as
well
as
a
twenty-four
hour
maintenance
response
line
and
"on-call"
maintenance personnel for maintenance calls for the Building.
E.
Repairs by Tenant
.
Subject to the
provisions
of Paragraph
10.D.
above, Tenant shall be responsible,
at its own cost and expense, for all repair
or
maintenance
of any damage to Tenant's
equipment and trade
fixtures in the
Premises,
together with any damage to the Premises or the Building (or any
part
thereof)
caused by Tenant or any of Tenant's
employees,
contractors,
agents,
invitees or licensees.
Tenant or its agents,
contractors or vendors shall also
be
responsible
for,
and
shall
pay
all
costs
associated
with
operating,
maintaining
and
repairing
any
and
all
equipment,
furniture,
fixtures,
furnishings
and
improvements
located
or
used
in
connection
with
the
cafeteria/kitchen located in the Premises.
11.
LANDLORD'S RESERVED RIGHTS
. Landlord reserves the following rights: [a]
to change
the
street
address
of the
Building
if
required
to do so by any
governmental
agency upon giving prior written notice thereof to Tenant;
[b] to
have signage on, or to change, the freestanding
entrance sign; [c] to designate
and control all sources furnishing
Building-related
services to Tenant and the
other tenants (except for security services and janitorial
services); [d]
14
during the final
twelve (12)
months of the Term to display
"for rent" or "for
sale" signs on and exhibit and otherwise
prepare the Premises for
reoccupancy;
[e] to have
Tenant
provide
access to any areas of the
Premises if Tenant has
requested
maintenance or repairs to be done to such areas;
[f] during the last
year of the Term to exhibit the Premises to prospective lessees;
[g] to take any
and all measures necessary or reasonable for the operation,
safety,
protection
or preservation of the Building,
whether structural or otherwise,
in and about
the Building or any part thereof after prior notice to Tenant
(provided that in
an emergency,
no such notice shall be required),
and during the continuance of
any such work to temporarily close doors, entryways, public spaces
and corridors
in the Building and to
reasonably
interrupt or
temporarily
suspend
Building
services or facilities, provided that Landlord shall, if
practicable (and unless
due to an emergency),
cause such closure,
interruption
or suspension to occur
outside
of
Tenant's
normal
business
hours;
and [h] to
install
an
energy
management system to more accurately
monitor and control heat,
ventilating and
air
conditioning in the Building.
Landlord may enter upon the Premises and may
exercise any or all of the
foregoing
rights
without being deemed guilty of an
eviction
(actual or
constructive) or disturbance of Tenant's use or possession
and without being liable in any manner to Tenant and without
affecting
Tenant's
obligations
hereunder,
provided that Landlord is not negligent in the exercise
of such rights.
12.
MECHANICS
LIENS
.
No
mechanic's or other lien shall be allowed to be
filed
against the estate of Landlord by reason of any work
performed by Tenant
pursuant to this Lease or by reason of any
consent
given by Landlord to Tenant
to improve the Premises.
Tenant shall pay promptly all persons furnishing labor
or
materials
with
respect
to
any
work
performed
by
Tenant
and/or
its
contractor(s)
on or about the
Premises.
In the event any
mechanic's or other
lien shall at any time be filed
against the Premises,
Building
and/or Land by
reason of work, labor, services or materials performed or
furnished,
or alleged
to have
been
performed
or
furnished,
to Tenant
or to any one
holding
the
Premises through or under Tenant, Tenant shall, within fourteen
(14) days of the
notice of filing thereof to Tenant, cause the same to be discharged
of record or
appropriately bonded to the reasonable satisfaction of Landlord. If
Tenant shall
fail to cause such lien to be so
discharged
or bonded after being
notified of
the filing thereof,
then, in addition to any other right or remedy of Landlord,
Landlord may bond or discharge the same by paying the amount
claimed to be due,
and the
amount
so paid
by
Landlord,
including
reasonable
attorney's
fees
incurred by Landlord
either
defending
against such lien or in
procuring
the
discharge of such lien,
together with
interest
thereon at the maximum rate of
twelve
percent (12%) per annum,
shall be due and payable by Tenant to Landlord
as Rent.
Tenant
shall
have no power
or
authority
to do any act or make any
contract which may create or be the
foundation for any lien,
mortgage or other
encumbrance
upon the reversion or other estate of Landlord,
or of any interest
in the Building or the Land.
13.
ENTRY BY
LANDLORD
.
Landlord
reserves and shall at any and all times
have, the right to enter the Building to inspect the same, to
supply any service
to be
provided
by
Landlord
to
Tenant
hereunder,
to show the
Premises
to
prospective
purchasers or lenders as allowed
under Section 11 hereof,
to post
notices of
nonresponsibility,
to alter,
improve or repair the Premises or any
other
portion of the Building in accordance
with the terms of this Lease,
all
without being deemed
guilty of any eviction of Tenant and without
abatement of
rent and may, in order to carry out such purposes,
erect
scaffolding and other
necessary
structures where reasonably
required by the character of the work to
be performed,
provided that the business of Tenant shall be interfered
with as
little as is reasonably practicable. To the extent necessary to
15
carry out each of the aforesaid purposes, Landlord shall at all
times be granted
access to all of the doors in, upon and about the Premises,
excluding
Tenant's
vaults and
safes,
and
Landlord
shall have the right to use any and all means
which
Landlord
may deem proper to open said doors in an
emergency in order to
obtain entry to the Premises, and any entry to the Premises
obtained by Landlord
by any of said
means,
or
otherwise,
shall
not under
any
circumstances
be
construed or deemed to be a forcible or unlawful
entry into,
or a detainer of,
the Premises, or an eviction of Tenant from the Premises or any
portion thereof,
and any damages caused on account thereof shall be paid by Tenant.
Tenant hereby
waives any claim for damages for any injury or
inconvenience to or interference
with
Tenant's
business,
any
loss of
occupancy
or
quiet
enjoyment
of the
Premises,
and any other loss
occasioned
thereby.
It is understood and agreed
that no provision of this Lease shall be
construed
as
obligating
Landlord to
perform any repairs,
alterations or decorations
except as otherwise
expressly
agreed herein to be performed by Landlord.
Tenant shall not change the locks on
the entries to the
Premises
without
first
obtaining
the written
consent of
Landlord,
and in such event
Tenant's
new locks
shall be tied into the master
locking system for the Building.
14.
UTILITIES AND SERVICES; TELECOMMUNICATIONS SERVICE PROVIDERS.
A.
Utilities
and
Services
.
Landlord
shall
furnish the
following
utilities and services during reasonable hours of generally
recognized business
days,
subject to the conditions and in accordance
with the standards set forth
in writing
by
Landlord
from time to time
during
the Term and
delivered
to
Tenant: (i) water for lavatory and drinking purposes; (ii) snow
removal service;
and (iii) elevator
service.
All other utilities and services shall be provided
to the Building by utility and service
providers
chosen by and under
contract
directly
with
Tenant
(except
that
Landlord
shall have to approve
any such
providers of service to the Building) and shall be separately
metered to and/or
paid for solely by Tenant directly to the applicable
utility company or service
provider,
including, but not limited to, electricity,
gas, janitorial service,
trash
disposal
and
telecommunications
service
and
security
service
(but
excluding
water,
snow
removal
and
elevator
service
which shall be paid by
Landlord
and shall be
included in the
Expenses
for the
Building).
Tenant's
janitorial service provider shall provide at a minimum the services
set forth as
the
Janitorial
and
Carpet
Maintenance
specifications
listed
on
Exhibit F
attached
hereto.
Landlord
shall not impose a fee if Tenant elects to sell its
waste paper and other recyclable materials.
Any and all security guard services
required
by Tenant
shall be arranged
for by Tenant at Tenant's
sole cost and
expense.
The Tenant shall notify
Landlord of the name and contact
information
for the security service in case of emergency.
B.
Interruption of Services
.
In no event shall Landlord be liable to
Tenant for any loss, cost, expense or damage incurred due to any
interruption or
failure of any
services
or
utilities,
to be provided
by
Landlord,
if such
interruption is beyond the reasonable
control of Landlord,
nor shall Tenant be
entitled to any
deductions,
abatement or set-off of Rent.
Tenant shall obtain
and maintain, at its sole expense, business interruption insurance
in reasonable
amounts to provide
coverage for a period of at least twelve (12) months for any
such interruption in utilities or services during the Term of this
Lease.
C.
Telecommunications
Service
Providers
.
In the event that
Tenant
wishes to utilize
the
service of a
telephone
or
telecommunications
service
provider ("Provider") whose
16
equipment is not servicing the Building as of the date of Tenant's
execution of
this
Lease or the
completion
of
Tenant's
Work,
no such
Provider
shall be
permitted to install its wires or other
equipment
within the
Building
unless
Tenant has first
secured the prior
written
consent of Landlord
which consent
shall not be unreasonably withheld, conditioned, denied or delayed.
(i)
Requirements
for
Landlord's
Consent.
Until
Landlord
determines, in its sole discretion,
that all of the following requirements have
been satisfied,
Landlord shall not be required to grant their consent to permit
Provider to install its wires and other equipment within the
Building:
(a)
Telecommunications
Agreement.
Provider has executed a
form of telecommunications service agreement, reasonably acceptable
to Landlord.
(b)
No
Expense.
Tenant
and
Provider
have
agreed
that
Landlord
shall
incur no
expense
whatsoever
with
respect
to any
aspect of
Provider's provision of its services,
including,
without limitation, the costs
of
installation
or
removal of
equipment
or wiring,
materials
or
service.
Notwithstanding the foregoing, Tenant has agreed to fully reimburse
Landlord, or
to cause
Provider to fully
reimburse
Landlord,
on demand,
for any
expenses
Landlord incurs
relating to any aspect of Provider's
provision of its devices,
including, without the costs of reviewing Provider's plans, the
costs (including
attorney's
fees and expenses) of
negotiating
the
telecommunications
service
agreement
between
Landlord
and
Provider,
and any other
costs
incurred
by
Landlord
with respect to Provider or its
installation,
including
any cost of
removal of such wiring and equipment at the end of the Term of this
Lease;
(c)
Financial
Statements
and Other
Items.
Provider
has
agreed to comply with the insurance
provisions of this Lease,
and has supplied
Landlord
with such
written
indemnities,
insurance
verifications,
financial
statements,
and such other
items as
Landlord
has
requested
to protect
its
financial
interests
and the interest of the Building
relating to the proposed
activated of Provider;
(d)
Building
Rules.
Provider
has agreed to abide by such
rules and regulations, job site rules, and such other requirements
as determined
by Landlord,
in its sole
discretion,
to protect the interest of the Building,
Landlord, and other tenants (if any) in the Building;
(e) Sufficient Space.
Landlord has determined,
in its sole
discretion,
that there is sufficient space in the Building for the placement of
all of Provider's wiring and equipment,
and Provider has agreed that all of its
equipment shall be located within the Premises;
(f) Provider's Good Standing. Provider has provided Landlord
with proof that Provider is duly licensed and reputable;
(g)
Compensation
for Wiring Space.
Provider has agreed to
compensate
Landlord the amount determined by Landlord for all of the space
used
in the Building
outside the Premises for Provider's
wiring,
and for all costs
that
may be
incurred
by
Landlord
in
arranging
for
access
by
Provider's
personnel; security for Provider's equipment; and
17
any other such costs as Landlord may expect to incur; and
(h)
Services to Other
Tenants.
Provider has agreed not to
utilize the wiring
and/or
equipment
installed
in the Building to provide any
services to any tenants or occupants of the Building,
other than Tenant,
or to
any other properties other than the Building.
(ii) Consent Is Not Landlord's Warranty. Landlord's consent under
this Section 14 shall not be deemed to be any kind of warranty or
representation
by Landlord, including, without limitation, any warranty or
representation as to
the suitability, competence, or financial strength of Provider.
(iii) No Third-Party
Rights. The provisions of this Paragraph 14
may be enforced
solely by Tenant and
Landlord,
and are not for the benefit of
any
other
party,
specifically,
without
limitation,
no
telephone
or
telecommunications
provider
shall be deemed a third-party
beneficiary of this
Lease.
(iv) Tenant Pays Expenses.
All telephone and
telecommunications
services desired by Tenant shall be ordered and utilized at the
sole expense and
risk of Tenant.
(v) Tenant Responsible for Service
Interruptions.
To the extent
that service by Provider is interrupted,
curtailed,
or discontinued,
Landlord
shall
have
no
obligation
or
liability
whatsoever
with
respect
thereto.
Additionally, such interruption, curtailment, or discontinuance of
service shall
not:
(a) Constitute an actual of constructive eviction of tenant,
in whole or in part;
(b) Entitle Tenant to any
abatement,
set-off or diminution
of rent;
(c) Relieve or release
Tenant
from any of its
obligations
under this Lease; or
(d) Entitle Tenant to terminate this Lease, and Tenant shall
have
the
sole
obligation,
at
its
own
expense,
to
obtain
substitute service.
15.
INDEMNIFICATION
.
Tenant shall
defend,
indemnify
and hold
harmless
Landlord,
its respective
agents,
employees,
officers,
directors,
partners,
shareholders and members ("Landlord's Related Parties") from and
against any and
all liabilities,
judgments, demands, causes of action, claims, losses, damages,
costs and expenses, including reasonable attorneys' fees and costs
arising from:
(i) Tenant's use, occupancy, conduct or operation of the Premises
or the conduct
of its
business,
or from any
activity,
work,
or thing
done,
permitted
or
suffered by Tenant in or about the
Premises;
(ii) any breach or default in the
performance of any
obligation on Tenant's part to be performed
under the terms
of this Lease; (iii) any act, neglect, fault or omission of Tenant,
or of any of
its officers,
contractors,
agents,
servants,
employees,
guests, invitees or
visitors, in or about the Building, Premises or Land; or (iv) any
accident,
18
injury or damage
occurring in, on or about the Premises.
This
indemnification
shall survive the expiration or other
termination of this Lease. This provision
shall
not be
construed
to
make
Tenant
responsible
for any
loss,
damage,
liability or expense
caused solely by the
negligence or willful
misconduct of
Landlord or Landlord's Related Parties.
Notwithstanding
the provisions of this
Paragraph 15 to the
contrary,
neither
Landlord nor its agents shall be liable
for any damage to property entrusted to employees in the Building,
nor for loss
of or damage to any of Tenant's
property by theft or
otherwise.
Tenant
shall
give prompt
notice to Landlord in case of fire or
accidents in the Premises or
in the Building or of defects therein.
Landlord shall defend, indemnify and hold harmless Tenant, its
agents,
employees,
officers, directors,
partners,
shareholders and members ("Tenant's
Related Parties") from and against any and all liabilities,
judgments, demands,
causes
of
action,
claims,
losses,
damages,
costs and
expenses,
including
reasonable
attorneys' fees and costs arising from: (i) any breach or default
in
the
performance of any obligation on Landlord's
part to be performed under the
terms of this Lease;
(ii) any act, neglect,
fault or omission of Landlord,
or
any of its officers, contractors,
agents, servants, employees or visitors in or
about the Building,
Premises or Land; and (iii) any accident,
injury or damage
occurring
in, on or about the Land
(other
than the
Premises)
and the Common
Areas. This indemnification shall survive the expiration or other
termination of
this Lease.
This provision shall not be construed to make Landlord
responsible
for
any
loss,
damage,
liability
or
expense
to the
extent
caused
by the
negligence or willful misconduct of Tenant or Tenant's Related
Parties.
16.
INSURANCE AND WAIVER OF RECOVERY
.
A.
Tenant's
Insurance
.
Tenant
shall at all times
during
the Term
maintain in full force and effect with
respect to the Premises and the Building
a policy or policies of: (i) comprehensive general liability
insurance providing
minimum
coverage
amounts of Two
Million
Dollars
($2,000,000.00)
for bodily
injury,
including
death
for
any
one
occurrence,
One
Million
Dollars
($1,000,00.00)
for
property
damage and Two Million
($2,000,000.00)
combined
single limit, (ii) "All-Risk"
insurance providing for full replacement value on
the Tenant's
personal
property,
trade fixtures and equipment in the Building,
(iii)
worker's
compensation
and
employer's
liability
insurance in form and
amount satisfactory to Landlord,
(iv) business
interruption and rent insurance
in such amounts as will reimburse Tenant for direct or indirect
loss of earnings
attributable
to the perils
commonly
insured
against by prudent
tenants
and
sufficient
to
continue to pay rent and all other
payments
to Landlord
for a
period of twelve (12) months, (v) insurance against acts of
terrorism,
provided
that
such
coverage
is
commercially
available
at
commercially
reasonable
premiums.
The annual
premium for
terrorism
insurance
shall be
commercially
reasonable
if it is less
than or equal to one
hundred
percent
(100%) of the
then-annual cost of the "all-risk"
insurance policy required in Subsection (ii)
above;
and (vi) such other coverages as may be reasonably
required by Landlord
or any mortgagee of the Land or Building, each in the standard form
generally in
use in the state in which the
Premises
are located from a company or companies
satisfactory
to
Landlord.
The
amount of such
insurance
coverages
shall be
subject to increase
upon the
reasonable
request of Landlord.
Such
insurance
shall be subject to
modification,
cancellation
or nonrenewal only upon thirty
(30) days notice to Landlord and any mortgagee of the Land or
Building.
Tenant,
at or prior to the
Commencement
Date, and thereafter not less than thirty (30)
days prior to the expiration of any such policy,
shall furnish
Landlord with a
certificate of insurance of such coverage with a paid statement for
the
19
premium due,
such
certificate
to be in a form
acceptable to Landlord and any
mortgagee of the Land or Building and naming Landlord, Landlord's
managing agent
and any such mortgagee as additional
insureds as their interests may appear (or
in the case of a mortgagee,
by means of a standard
mortgagee
endorsement) and
shall specifically make reference to the
indemnification
obligations of Tenant
under this Lease. All insurance
policies obtained by Tenant shall be written as
primary
policies
and not
contradicting
with or in excess of
coverage
which
Landlord may carry, if any.
B.
Waiver of
Subrogation
.
Landlord and Tenant hereby
mutually waive
any and all rights of recovery,
claims,
actions or causes of action arising in
any manner in its (the "Injured Party's") favor against the other
party for real
or personal property loss or damage occurring to the Premises or to
the Building
or any part thereof or any personal property located therein,
to the extent the
loss or damage is covered by the Injured Party's
insurance,
or would have been
covered by the
insurance
the
Injured
Party is
required
to carry under this
Lease.
Landlord and Tenant shall be
obligated
to obtain
consents
from their
insurance
carriers to a waiver of all rights of subrogation
against each other
by inclusion of such a clause in their
respective
policies or by
endorsements
thereto to the extent permitted by the laws and regulations
governing insurance
in the state in which the Building is located.
C.
Landlord's Insurance
. Landlord shall, throughout the Term, maintain
"All-Risk"
insurance on the Building
(excluding any personal
property,
trade
fixtures or
equipment
owned or used by Tenant with
respect to which Tenant is
obliged to maintain
insurance
pursuant to the provisions of Subparagraph
16A.
above)
providing for the full replacement
value thereof.
Landlord shall also,
throughout the Term,
maintain general commercial
liability insurance providing
minimum
coverage
amounts of Two
Million
Dollars
($2,000,000.00)
for bodily
injury,
including
death
for
any
one
occurrence,
One
Million
Dollars
($1,000,00.00)
for
property
damage and Two Million
($2,000,000.00)
combined
single limit
covering the Land (other than the
Premises) and the Common Areas.
Landlord shall also maintain
worker's
compensation
and
employers
liability
insurance
for any
employees of Landlord
which may be used to carry out any of
Landlord's
responsibilities
hereunder.
Landlord
may
also,
but shall not be
obligated
to, take out and carry any other form or forms of
insurance as it or
the mortgagees of Landlord may reasonably determine
advisable.
Notwithstanding
any
contribution by Tenant to the cost of insurance
premiums,
as provided for
herein,
Tenant
acknowledges
that it has no right to receive any proceeds from
any such
insurance
policies
carried
by
Landlord.
Landlord
will not
carry
insurance of any kind on Tenant's
furniture or
furnishings,
or any
fixtures,
equipment,
improvements
or
appurtenances
of Tenant
under
this
Lease;
and
Landlord
shall not be
obligated
to repair any damage
thereto or replace
the
same.
Upon
written
request of Tenant,
but no more than once per Lease
Year,
Landlord
shall furnish to Tenant a
certificate
of insurance
evidencing
such
insurance
as Landlord
may carry with a paid
statement
for the
premium
due.
Landlord's
insurance coverage required hereunder shall comply with the terms
of
Section 16.A. hereof.
17.
DAMAGE OR DESTRUCTION
.
A.
Landlord's Duty to Repair and Restore
. If all or a substantial part
of the Premises is rendered untenantable or inaccessible by damage
to all or any
part of the
Building
from
fire,
the
elements,
accident
or other
casualty
(collectively, "Casualty") then, unless either
20
party is entitled, and elects, to terminate this Lease pursuant to
Subparagraphs
B. and C. hereof,
Landlord
shall,
at its expense,
use reasonable
efforts to
repair and
restore the
Premises
and/or the
Building,
as the case may be, to
substantially
their former condition to the extent permitted by then-applicable
laws;
provided,
however,
that in no event shall Landlord have any obligation:
(i) to make
repairs or
restoration
beyond the
extent of
insurance
proceeds
received by Landlord for such repairs or restoration;
(ii) to repair or restore
any of Tenant's personal
property,
trade fixtures,
equipment,
alterations or
improvements
(except to the
extent the same is
included
in
Landlord's
Work
hereunder
or to the extent
Landlord
receives
the
proceeds of any
insurance
therefor; or (iii) to repair or restore the Premises and/or the
Building if such
Casualty
resulted from the negligence or willful act of Tenant,
its employees,
officers, agents, licensees, guests or visitors ("Tenant Parties")
unless Tenant
shall be
liable
to
Landlord
for the cost and
expense
of such
repairs
and
restoration or unless Landlord
receives the proceeds of any insurance
covering
such costs.
If Landlord is required to repair
damage to the
Premises
and/or the
Building:
(i) this Lease shall
continue in full force and effect but
Tenant's
Annual Base Rent from the date of the Casualty
through the date of
substantial
completion
of the
repair
shall be abated
with
regard to any
portion of the
Premises
that
Tenant is
prevented
from using by reason of such damage or its
repair,
unless such
Casualty
resulted
from the
negligence or willful act of
Tenant or
Tenant
Parties;
and (ii) in no event
shall
Landlord
by liable to
Tenant by reason of any injury to or
interference
with
Tenant's
business
or
property
arising from a Casualty or by reason of any repairs to any part of
the
Building necessitated by the Casualty.
B.
Landlord's and Tenant's Right to Terminate
.
Landlord or Tenant may
elect to terminate this Lease following
damage caused by any Casualty under the
following circumstances: (i) if, in Landlord's reasonable judgment,
the Premises
and the Building cannot be substantially
repaired and restored under applicable
laws within two hundred
seventy
(270) days from the date of the
Casualty;
or
(ii) if adequate
proceeds are not, for any reason,
made
available to Landlord
from Landlord's insurance policies to make the required repairs.
Landlord only,
and not Tenant, may elect to terminate this Lease following damage
caused by any
Casualty under the following circumstances:
(a) if thirty percent (30%) or more
of the Premises is damaged or destroyed (including, without
limitation, by smoke
or water damage); (b) if thirty percent (30%) or more of the
Building is damaged
or destroyed (including,
without limitation,
by smoke or water damage); (c) if
the Building is damaged or destroyed (including, without
limitation, by smoke or
water
damage) to the extent that,
in
Landlord's
sole
judgment,
the cost to
repair and/or restore the Building would exceed twenty-five (25%)
percent of the
full replacement cost of the Building;
or (d) if the Casualty occurs during the
last
twenty-four (24) months of the Term (provided that if such Casualty
occurs
during the last twenty-four (24) months of the Term and Tenant pays
to Landlord,
on demand, the unamortized costs of all Tenant Finish or other
improvements made
to the Building or Premises by Landlord,
or made at Landlord's expense,
plus a
penalty equal to twenty percent (20%) of the Annual Base Rent which
would be due
for the remainder of the Term if the Lease were not terminated,
Tenant may elect
to terminate this Lease).
C.
Notice
.
If any of the
circumstances
described in Subparagraph B.
above
occur or arise,
Landlord
shall
notify
Tenant in
writing of that fact
within 120 days after the date
21
of the Casualty and in such notice
Landlord
shall also advise
Tenant
whether
Landlord
has elected to
terminate
this Lease as provided in
Subparagraph
B.
hereof.
D.
Waiver
.
Tenant
hereby
waives the
provisions
of any
applicable
statutory or common law permitting the
termination of a lease
agreement in the
event of damage to, or
destruction
of, any part or all of the Premises
and/or
the Building by a Tenant.
18.
EMINENT DOMAIN
. If the whole of the Building (or the real property upon
which it is located) or the whole of the Premises shall be taken by
the exercise
of the power of
eminent
domain or
pursuant
to any
agreement
in lieu of the
exercise of such power (hereinafter
called a "Condemnation
Proceeding"),
then
this Lease shall
terminate
as of the date of the taking of
possession
by the
condemning
authority (such date being hereinafter called the "Taking Date").
If
less than the
whole of the
Building
(or the real
property
upon
which it is
located) or less than the whole of the Premises shall be taken in a
Condemnation
Proceeding,
Tenant may at its option terminate this Lease as of the Taking Date
by giving notice of its exercise of such option within sixty (60)
days after the
Taking
Date,
provided
that as a result of such
taking the
Premises
(or the
remaining
portion thereof) in the reasonable
opinion of Landlord or Tenant may
no longer be adequately used for the Permitted Use. If a portion of
the Premises
shall be taken and Tenant shall not exercise its option to
terminate
this Lease
or if such
taking
shall not give rise to such option to
terminate,
then this
Lease shall terminate on the Taking Date only as to that portion of
the Premises
so taken but shall
remain in full force and effect with respect to that portion
of the Premises not so taken,
and the Rent and other charges
payable by Tenant
hereunder
shall be reduced in the ratio in which the diminution of the
rentable
square
footage of the
Premises
following
the
Taking
Date shall bear to the
rentable
square
footage
thereof
immediately
prior to such Taking Date.
All
income, rent, awards or interest derived from any Condemnation
Proceeding shall
belong to and be the
property of Landlord,
but this shall not preclude
Tenant
from making a claim in such
Condemnation
Proceeding for the taking of Tenant's
personal
property and fixtures,
for Tenant's moving expenses and for the value
of Tenant's leasehold
improvements to the extent directly paid for by Tenant to
a third-party contractor without credit or reimbursement from
Landlord.
19.
FORCE MAJEURE
. Neither Landlord nor Tenant shall be required to perform
any
term
provision,
condition
or
covenant
in this
Lease
(other
than the
obligation of Tenant to pay Rent as provided herein) so long as
such performance
is delayed or prevented by "Force
Majeure".
"Force Majeure" shall mean acts of
God,
strikes,
injunctions,
lock-outs,
material or labor
restrictions by any
government
or authority,
civil
rights,
floods,
fire,
theft,
public enemy,
insurrection,
war,
terrorist
act,
court
order,
requisition
or
order
of
governmental
body or authority
and any other cause not
reasonably
within the
control of Landlord or
