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Exhibit 10.2
OFFICE FACILITY LEASE
This AMENDED AND
RESTATED OFFICE FACILITY LEASE (“
Amended and Restated Lease ”)
effective August 9, 2007 by and between FIRST
INDUSTRIAL INVESTMENT, INC. (“
Landlord ”) and CHD MERIDIAN
HEALTHCARE, LLC (“ Tenant
”).
WHEREAS ,
Tenant and First Industrial Development Services, Inc.,
previously executed that Office Facility Lease with an
effective date of August 9, 2007 (the “
Lease ”) for the lease from said First
Industrial Development Services, Inc. to Tenant of an office
building consisting of approximately 50,000 rentable square
feet to be constructed by said First Industrial Development
Services, Inc., all pursuant to the terms and conditions set
forth therein;
WHEREAS ,
said First Industrial Development Services, Inc., through
inadvertence and mistake was named in the Lease as
the “landlord,” rather than Landlord, the name of
said First Industrial Development Services, Inc. having
previously been changed to “First Industrial
Investment, Inc.” pursuant to Articles of Amendment
dated August 22, 2006 filed with the State of Maryland
Department of Assessments of Taxation which Articles are
attached hereto as Exhibit H ;
and
WHEREAS ,
the parties now desire to amend and restate the Lease to
properly reflect the name of the Landlord hereunder as First
Industrial Investment, Inc., it being agreed and acknowledged
between the parties hereto that the Landlord in and under the
Lease is First Industrial Investment, Inc., and that the
Lease is and shall be amended to reflect First Industrial
Investment, Inc. as the Landlord hereunder and restated in
its entirety as follows:
OFFICE FACILITY LEASE
(BUILD-TO-SUIT/TRIPLE NET)
1.
BASIC TERMS . This
Section 1 contains the Basic Terms of this
Lease between Landlord and Tenant, named
below. Other Sections of the Lease referred to in
this Section 1 explain and define the Basic
Terms and are to be read in conjunction with the Basic
Terms.
1.1
Effective
Date of Lease: August 9, 2007
1.2
Landlord: First
Industrial Investment, Inc.
1.3
Tenant: CHD
Meridian Healthcare, LLC, a Delaware limited liability
company
1.4
Premises: (See
Section 2.1 ) Approximately 50,000
rentable square feet (as measured by the
American National Standard Method of Measuring
Floor Area in Office Buildings, EONS Z65.1-1996, published by
the Building Owners and Managers Association International
(“BOMA Standards”) included in the Improvements
(as defined on Exhibit B attached hereto) to
be constructed pursuant to the terms of this Lease on land
legally described on Exhibit A attached
hereto (the “ Land
”).
1.5
Lease
Term: Eleven (11) years (the “
Term ”), commencing on the Commencement
Date (as defined in Exhibit B attached
hereto) and ending eleven Lease Years (as hereinafter defined)
thereafter unless sooner terminated as provided in this Lease
(the “ Expiration Date ”), or
unless extended pursuant to Section 25.18
. The term, “ Lease Year
,” refers to a period of twelve (12) consecutive
calendar months, the first of which twelve (12) month periods
is referred to as the “ Initial Lease
Year ;” such Initial Lease Year is the period
from the Commencement Date to the last day of the calendar
month in which the first annual anniversary of the
Commencement Date occurs.
1.6
Permitted
Use: (See Section 4.1
) Office space, on-site health center and medical
care facility, health fitness center, pharmacy and drug
distribution center.
1.7
Tenant’s
Guarantor: I-trax, Inc., a Delaware
corporation
1.8
Brokers: (See
Section 24 ; if none, so
state): (A) Tenant’s
Broker: Newmark Knight Frank; and
(B) Landlord’s
Broker: None
1.9
Security/Damage
Deposit: The Letter of Credit
1.10
Buyout
Allowance: Subject to Tenant’s prior
delivery to Landlord of the Letter of Credit (defined below),
$963,796.00 to be paid by Landlord directly to Burton Hills
IV Investments, Inc., a Tennessee corporation, for the
benefit of Tenant on or before September 1, 2007, to satisfy
Tenant’s obligations pursuant to that Amended and
Restated Second Amendment to Lease dated August 9, 2007,
which is attached hereto as Exhibit E
. Landlord acknowledges that payment of the buyout
allowance is a material inducement to Tenant to execute this
Lease, and subject to delivery of the Letter of Credit by
Tenant to Landlord, Landlord shall indemnify and hold
harmless Tenant from any direct Losses (as defined below)
from the failure by Landlord to make such payment on or
before September 1, 2007.
1.11
Exhibits
to Lease: The following exhibits are attached to
and made a part of this Lease: A (Legal
Description of Land), A-1 (Floor Plan of Premises); B
(Construction Improvements, inclusive of B-1 (Landlord
Improvements), B-2 (Tenant Improvements), B-3 (Acceptance
Agreement), B-4 (Allowances/Construction Budget), and B-5
(Construction Schedule)); C (Tenant Operations Inquiry Form);
D (Broom Clean Condition and Repair Requirements); E (Amended
and Restated Second Amendment to Lease); F (Form of Estoppel
Certificate); G (Standby Letter of Credit); and H (Name
Change Articles).
2.
LEASE OF PREMISES; RENT .
2.1
Lease of Premises for Term
. Landlord hereby leases the Premises to Tenant, and
Tenant hereby rents the Premises from Landlord, for the Term and
subject to the conditions of this Lease. As of the
Commencement Date, Tenant shall occupy all 50,000 rentable square
feet of the Premises.
2.2
Types of Rental Payments . Tenant shall pay
net base rent to Landlord in monthly installments, in advance, on
the first day of each and every calendar month during the Term of
this Lease (the “ Base Rent ”) in the
amounts and for the periods as set forth below:
Rental Payments
|
Lease Period
|
Annual Base Rent
|
Monthly Base Rent
|
|
Lease
Year
1 Months
1-4
Months
5-12
|
Free
Rent
$530,000.00
|
Free
Rent
$66,250.00
|
|
Lease
Year 2
|
$810,900.00
|
$67,575.00
|
|
Lease
Year 3
|
$827,118.00
|
$68,927.00
|
|
Lease
Year 4
|
$843,660.00
|
$70,305.00
|
|
Lease
Year 5
|
$860,554.00
|
$71,713.00
|
|
Lease
Year 6
|
$877,764.00
|
$73,147.00
|
|
Lease
Year 7
|
$895,320.00
|
$74,610.00
|
|
Lease
Year 8
|
$913,224.00
|
$76,102.00
|
|
Lease
Year 9
|
$931,488.00
|
$77,624.00
|
|
Lease
Year 10
|
$950,112.00
|
$79,176.00
|
|
Lease
Year 11
|
$969,120.00
|
$80,760.00
|
Tenant shall also pay all
Operating Expenses (defined below) and any other amounts owed
by Tenant hereunder (collectively, “Additional
Rent” ). In the event any monthly
installment of Base Rent or Additional Rent, or both, is not
paid within 10 business days of the date when due,
a late charge in an amount equal to 1% of the then delinquent
installment of Base Rent and/or Additional Rent (the “
Late Charge ”; the Late Charge,
Default Interest, as defined in Section 23.3
below, Base Rent and Additional Rent are collectively be
referred to as “ Rent ”), shall
be paid by Tenant to Landlord, First Industrial Investment,
Inc., 75 Remittance Drive, Suite 1066, Chicago, IL
60675-1066, or if sent by overnight courier, The Northern
Trust Company, 350 North Orleans Street, 8 th
Floor Receipt and Dispatch, Chicago, IL 60654 Attention:
First Industrial Investment, Inc., Suite 1066 (or such other
entity designated as Landlord’s management agent, if
any, and if Landlord so appoints such a management agent, the
“ Agent ”), or pursuant to such
other directions as Landlord shall designate in this Lease or
otherwise in writing.
2.3
Covenants Concerning Rental Payments; Initial and Final
Rent Payments . Tenant shall pay the Rent
promptly when due, without notice or demand, and without any
abatement, deduction or setoff. No payment by Tenant, or
receipt or acceptance by Agent or Landlord, of a lesser amount than
the correct Rent shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or
letter accompanying any payment be deemed an accord or
satisfaction, and Agent or Landlord may accept such payment without
prejudice to its right to recover the balance due or to pursue any
other remedy available to Landlord. If the Commencement
Date occurs on a day other than the first day of a calendar month,
the Rent due for the first partial calendar month of the Term shall
be prorated on a per diem basis (based on a 360 day, 12 month year)
and paid to Landlord on the Commencement Date.
2.4
Net Lease . Tenant shall pay all
costs and expenses incurred by Landlord and relating to the
ownership and operation of the Premises and the business carried on
therein, unless otherwise expressly provided to the contrary in
this Lease. Any amount or obligation relating to the
Premises that is not expressly declared (under this Lease) to be
that of Landlord shall be deemed to be an obligation of Tenant, to
be performed by Tenant, at Tenant’s expense. It is
the intention of the parties hereto that the obligations of Tenant
hereunder shall be separate and independent covenants and
agreements, that the Base Rent and the Additional Rent shall
continue to be payable in all events, and that the obligations of
Tenant hereunder shall continue unaffected in all events, unless
the requirement to pay or perform the same shall have been
specifically terminated pursuant to an express provision of this
Lease.
3.
OPERATING EXPENSES .
3.1
Definitional Terms Relating to Additional
Rent . For purposes of this Section and
other relevant provisions of the Lease:
3.1.1
Operating Expenses . The term
“ Operating Expenses ” shall mean all
of the following: (i) all market-based premiums for
commercial property, casualty, general liability, boiler, flood,
earthquake, terrorism and all other types of insurance provided by
Landlord and relating to the Premises , and all
deductibles paid by Landlord pursuant to insurance policies
required to be maintained by Landlord under this Lease; (ii)
management fees to Landlord or Agent in an amount not to exceed
2.5% per annum of all Base Rent due hereunder; (iii) Taxes, as
hereinafter defined in Section
3.1.2 (subject, however, to the last sentence of
Section 3.1.2 ); (iv) dues, fees or other costs
and expenses, of any nature, due and payable to any association or
comparable entity to which Landlord, as owner of the Premises, is a
member or otherwise belongs and that governs or controls any aspect
of the ownership and operation of the Premises; and (v) any real
estate taxes and common area maintenance expenses levied against,
or attributable to, the Premises under any declaration of
covenants, conditions and restrictions, reciprocal easement
agreement or comparable arrangement that encumbers and benefits the
Premises and other real property (e.g. a business
park).
3.1.2
Taxes . The term “
Taxes ,” as referred to in Section
3.1.1(iii) above shall mean (i) all governmental taxes,
assessments, fees and charges of every kind or nature (other than
Landlord’s income taxes), whether general, special, ordinary
or extraordinary, due at any time or from time to time, during the
Term and any extensions thereof, in connection with the ownership,
leasing, or operation of the Premises, or of the personal property
and equipment located therein or used in connection therewith; and
(ii) any reasonable expenses incurred by Landlord in contesting
such taxes or assessments and/or the assessed value of the
Premises. For purposes hereof, Tenant shall be
responsible for any Taxes that are due and payable at any time or
from time to time during the Term and for any Taxes that are
assessed, become a lien, or accrue during any Operating Year, which
obligation shall survive the termination or expiration of this
Lease. If Landlord so elects, by delivery of written
notice to Tenant at any time during the Term, Tenant shall pay the
Taxes directly to the taxing authority(ies), rather than to
Landlord for payment to the taxing authority(ies), whereupon Tenant
shall be required to pay all Taxes prior to the date on which they
become delinquent and Tenant shall deliver to Landlord, promptly
after Tenant’s payment of same, reasonable evidence of such
payments.
3.1.3
Operating Year . The term
“ Operating Year ” shall mean the
calendar year commencing January 1st of each year (including the
calendar year within which the Commencement Date occurs) during the
Term.
3.2
Payment of Operating Expenses
. Tenant shall pay, as Additional Rent and in accordance
with the requirements of Section 3.3 , all of the
Operating Expenses, as set forth in Section 3.3
. Additional Rent commences to accrue upon the
Commencement Date. The Operating Expenses payable
hereunder for the Operating Years in which the Term begins and ends
shall be prorated to correspond to that portion of said Operating
Years occurring within the Term. The Operating Expenses
and any other sums due and payable under this Lease shall be
adjusted upon receipt of the actual bills therefor, and the
obligations of this Section 3 shall survive
the termination or expiration of the Lease.
3.3
Payment of Additional Rent
. Landlord shall have the right to reasonably estimate
the Operating Expenses for each Operating Year. Upon
Landlord’s or Agent’s notice to Tenant of such
estimated amount, Tenant shall pay, on the first day of each month
during that Operating Year, an amount (the “
Estimated Additional Rent ”) equal to the
estimate of the Operating Expenses divided by 12 (or the fractional
portion of the Operating Year remaining at the time Landlord
delivers its notice of the estimated amounts due from Tenant for
that Operating Year). If the aggregate amount of
Estimated Additional Rent actually paid by Tenant during any
Operating Year is less than Tenant’s actual ultimate
liability for Operating Expenses for that particular Operating
Year, Tenant shall pay the deficiency within 30 days of
Landlord’s written demand therefor. If the
aggregate amount of Estimated Additional Rent actually paid by
Tenant during a given Operating Year exceeds Tenant’s actual
liability for such Operating Year, the excess shall be credited
against the Estimated Additional Rent next due from Tenant during
the immediately subsequent Operating Year, except that in the event
that such excess is paid by Tenant during the final Lease Year,
then upon the expiration of the Term, Landlord or Agent shall pay
Tenant the then-applicable excess promptly after determination
thereof. Tenant shall have the right upon thirty (30)
days prior notice to audit the books and records of the Landlord
with respect to its determination of Additional Rent.
3.4
Management Services . Landlord
shall provide the following management services in consideration of
the management fee set forth in Section 3.1.1 :
(a) assist Tenant as needed with Tenant’s
management and oversight of all common areas within the Building
(as defined on Exhibit B ), including, elevator
shafts, stairways, vertical penetrations, electrical systems, and
all other areas and building systems not included within the
Premises based on BOMA Standards; (b) administration and management
of Tenant’s repair, replacement, operation and maintenance of
the elevators and the heating, ventilation
and air-conditioning system; (c) assist Tenant as needed in
connection with Tenant’s administration of its service
contracts with respect to (i) janitorial services for the Premises
on business days, (ii) maintenance, repair and replacement of the
driveways, access roads, parking and sidewalk areas (including snow
and ice removal, sweeping and striping), landscaped areas, and
lighting, and (iii) trash and rubbish removal; (d) management and
administration of payment of annual taxes and assessments assessed
by the County, City, and/or other governmental authorities for the
land and improvements constituting the Premises; and (e) customary
management and administration services with respect to insurance
coverage for the Premises.
4.
USE OF PREMISES; SIGNAGE; SECURITY DEPOSIT
.
4.1
Use of Premises . The Premises
shall be used by the Tenant for the purpose(s) set forth in
Section 1.6 above and for no other purpose
whatsoever. Tenant shall not, at any time, use or
occupy, or suffer or permit anyone to use or occupy, the Premises,
or do or permit anything to be done in the Premises, in any manner
that would reasonably be expected to (a) violate any Certificate of
Occupancy for the Premises; (b) cause, or be liable to cause,
injury to, or in any way impair the value or proper utilization of,
all or any portion of the Premises (including, but not limited to,
the structural elements of the Premises) or any equipment,
facilities or systems therein; (c) constitute a violation of the
laws and requirements of any public authority or the requirements
of insurance bodies or the rules and regulations of the Premises,
including any covenant, condition or restriction affecting the
Premises; (d) exceed the load bearing capacity of the floor of the
Premises; or (e) impair or tend to impair the character, reputation
or appearance of the Premises. On or prior to the date
hereof, Tenant has completed and delivered for the benefit of
Landlord a “Tenant Operations Inquiry Form” in the form
attached hereto as Exhibit C describing the nature
of Tenant’s proposed business operations at the Premises,
which form is intended to, and shall be, relied upon by
Landlord. From time to time during the Term (but no more
often than once every twelve months unless Tenant is in default
hereunder or unless Tenant assigns this Lease or subleases all or
any portion of the Premises, whether or not in accordance with
Section 8 ), Tenant shall provide an updated and
current Tenant Operations Inquiry Form upon Landlord’s
request. At such time as Tenant seeks any zoning or land
use approval required for the Permitted Uses, Landlord shall
provide commercially reasonable assistance to obtain such
approvals, provided, that, it is reimbursed for all out-of-pocket
costs incurred.
4.2
Signage . Except as set forth in
the Preliminary Plans or on the Final Project Plans (including
signage on the building), Tenant shall not affix any sign of any
size or character to any portion of the Premises, without prior
written approval of Landlord, which approval shall not be
unreasonably withheld or delayed. Tenant shall remove
all signs of Tenant upon the expiration or earlier termination of
this Lease and promptly repair any damage to the Premises caused
by, or resulting from, such removal.
4.3
Letter of Credit .
4.3.1
Delivery of Letter of Credit
. Concurrently with
Tenant’s execution and delivery of this Lease to
Landlord, and as an express condition to Landlord’s
obligation to pay the Buyout Allowance to Tenant, Tenant
shall deliver to Landlord a letter of credit (
“Letter of Credit” ) in the
amount of Seven Hundred Thousand and No/100 Dollars
($700,000.00). The Letter of Credit shall be held
by Landlord as security for the performance by Tenant of all
its material obligations under this Lease. Upon
the occurrence of a Default hereunder by Tenant, Landlord
may, from time to time, draw on the Letter of Credit and
utilize the proceeds, therefor (the “ Security
Deposit ”) to the extent necessary to satisfy
any and all amounts due and owing under Section 23 arising
out of such Default. Any remaining balance of the
Security Deposit shall be returned by Landlord to Tenant at
the earlier of within 30 days after (a) the termination or
expiration of this Lease and the full and complete
satisfaction of Tenant’s obligations hereunder; (b) the
day on which the amount of the Letter of Credit that Tenant
must maintain is reduced in accordance with Section 4.3.2(b)
so long as Tenant delivers to Landlord substitute Letters of
Credit in accordance with Section 4.3.2(b); or (c) in the
event of a Default which may be cured by the payment of
money, upon payment in full of such amount in full
satisfaction and discharge of such Default as reasonably
required by Landlord if Landlord elects, in its sole and
absolute discretion, to accept such payment in cure of such
Default, provided that Landlord’s election to accept
such payment of money in satisfaction and cure of any Default
shall not constitute a waiver by Landlord of any of its
rights or remedies under Section 23 of this Lease with
respect to any further or subsequent Default, and
provided further, that Landlord shall not be deemed to have
accepted any such payment of money in cure of any Default and
the payment of money shall not be deemed or constitute a cure
of the Default unless and until Landlord has agreed in
writing with Tenant that acceptance of such payment
constitutes a discharge and cure of such
Default. The Security Deposit shall not be
considered an advance payment of rental or a measure of
Landlord's damages in case of Default by
Tenant. Tenant shall not be entitled to receive
and shall not receive any interest on the Security Deposit,
and Landlord may commingle the same with other monies of
Landlord. In the event of a sale or transfer of
Landlord’s interest in the Premises, Landlord shall
have the right to transfer the Security Deposit to the
purchaser or lessor, as the case may be, and upon any such
transfer Landlord shall be relieved of all liability to
Tenant for the return of the Security Deposit, and Tenant
shall look solely to the new owner or lessor for the return
of the Security Deposit.
4.3.2
Letter of Credit Requirements
.
a.
The
Letter of Credit shall (i) be clean, unconditional,
irrevocable, transferable, payable to Landlord on sight at a
financial institution located in the Nashville, Tennessee
metropolitan area, in partial or full draws; (ii) be
substantially in the form attached hereto and incorporated
herein as Exhibit G , and otherwise be in
form and content acceptable to Landlord; (iii) be issued by a
financial institution acceptable to Landlord; and (iv)
contain an “evergreen” provision that provides
that it is automatically renewed on an annual basis unless
the issuer delivers thirty (30) days’ prior written
notice of cancellation to Landlord and Tenant. Any
and all fees or costs charged by the issuer in connection
with the Letter of Credit shall be paid by
Tenant.
b.
Tenant
shall maintain the Letter of Credit in full force and effect
throughout the entire Term hereof and thirty (30) days after
the expiration or earlier termination hereof, and shall cause
the Letter of Credit to be renewed or replaced not less than
thirty (30) days prior to its expiry
date. Landlord shall return the Letter of Credit
to Tenant within thirty (30) days after the expiration of the
Term or upon an earlier termination of this Lease, provided
Tenant shall have made all payments and performed all
covenants and agreements required under this
Lease. The foregoing notwithstanding, if Tenant is
not in Default under this Lease, Tenant may reduce the face
amount of the Letter of Credit to $466,667 after the
sixteenth month of the Term. Thereafter, so long
as Tenant shall not be in Default under this Lease, the face
amount of the Letter of Credit may be further reduced to
$233,333 after the fortieth month of the
Term. From and after such second reduction, there
shall be no further reductions in the face amount of the
Letter of Credit.
c.
Landlord
shall have the right to present the Letter of Credit for
payment and draw thereon in whole or in part following a
Default and may apply the proceeds thereof in satisfaction of
Tenant’s obligations following a Default under Section
23 of this Lease, but not further or
otherwise. Any portion of the Security Deposit
remaining following Landlord’s acceptance in writing of
a payment of money in cure of a Default shall be returned to
Tenant promptly following any necessary restoration of the
face amount of the Letter of Credit to the amount of the
Letter of Credit prior to Landlord’s draw(s), it being
understood that Tenant upon written demand shall forthwith
restore the Letter of Credit to the amount of the Letter of
Credit prior to Landlord’s draw(s). In the
event of a monetary Default which may be paid and satisfied
by payment of a fixed sum, without regard of whether Landlord
elects to accept such payment in cure of such Default,
Landlord agrees to initially only draw such amount(s) as may
be initially required to recoup payment of the sum in
question, provided that such partial draw shall
not constitute a waiver or be in limitation of
Landlord’s ongoing rights to thereafter continue to
draw on the Letter of Credit in the enforcement of its rights
and remedies under Section 23 below at such times and in such
amounts as Landlord determines to be necessary for so long as
such Default remains uncured, it being agreed that any
election of Landlord to accept payment in cure of a Default
shall at all times be in Landlords sole and absolute
discretion. Neither any drawing under the Letter
of Credit nor any installment of rent prepaid by Tenant shall
be deemed liquidated damages in the event of a default by
Tenant under this Lease. Landlord shall also have
the right to draw upon the Letter of Credit in any of the
following circumstances: (i) if the credit rating of the
issuer of the Letter of Credit is downgraded from the credit
rating of such issuer at the time of the issuance of the
Letter of Credit, the issuer of the Letter of Credit enters
into any supervisory agreement with any governmental
authority, or the issuer of the Letter of Credit fails to
meet any capital requirements imposed by applicable law and
Landlord reasonably determines that such event materially
compromises the issuer’s ability to stand behind its
obligations under the Letter of Credit, and Tenant fails to
deliver to Landlord a replacement Letter of Credit complying
with the terms of this Lease within thirty (30) days of
request therefor from Landlord, and (ii) if Tenant fails to
provide Landlord with any renewal or replacement Letter of
Credit complying with the terms of this Lease at least thirty
(30) days prior to expiration of the then-current Letter of
Credit, where the issuer of such Letter of Credit has advised
Landlord of its intention not to renew the Letter of
Credit. In the event the Letter of Credit is drawn
upon due solely to the circumstances described in the
foregoing clauses (i) or (ii), the amount drawn shall be held
by Landlord without interest as a Security Deposit to be
otherwise retained, expended or disbursed by Landlord in
accordance with the terms of this Lease.
d.
Upon
notice to Tenant, Landlord shall have the right to pledge or
assign its interest in the Letter of Credit and proceeds
thereof to any lender holding a security interest in the
Premises. In the event of a sale or transfer of
Landlord’s interest in the Premises, upon notice to
Tenant, Landlord shall have the right to transfer the Letter
of Credit, or the proceeds thereof, to the extent not applied
as set forth above, to transferee as the new landlord under
this Lease. To the extent the Letter of Credit, or
proceeds thereof, are so transferred, Landlord shall be
considered released by Tenant from all liability for the
return of the Letter of Credit, or proceeds
thereof. No mortgagee or purchaser of any or all
of the Premises at any foreclosure proceeding brought under
the provisions of any mortgage shall (regardless of whether
the Lease is at the time in question subordinated to the lien
of any mortgage) be liable to Tenant or any other person for
any or all of such sums or the return of any Letter of Credit
(or any other or additional security deposit or other payment
made by Tenant under the provisions of this Lease), unless
Landlord has actually delivered the Letter of Credit, or
proceeds thereof, to such mortgagee or
purchaser. If requested by any such mortgagee or
purchaser, Tenant shall obtain an amendment to the Letter of
Credit that names such mortgagee or purchaser as the
beneficiary thereof in lieu of Landlord.
e.
No
right or remedy available to Landlord as provided in this
Section 4.3 shall preclude or extinguish any other right to
which Landlord may be entitled. In furtherance of
the foregoing, it is understood that in the event Tenant
fails to perform its obligations and to take possession of
the Premises on the Commencement Date, any amounts recovered
from the Letter of Credit shall not be deemed liquidated
damages. Landlord may apply such sums to reduce
Landlord’s damages and such application of funds shall
not in any way limit or impair Landlord’s right to seek
or enforce any and all other remedies available to Landlord
to the extent allowed hereunder, at law or in
equity.
5.
CONDITION AND DELIVERY OF PREMISES
.
5.1
Condition of Premises . Landlord
shall deliver the Premises in accordance with the requirements in
Exhibit B hereto. Except as otherwise
expressly provided in Exhibit B , Landlord shall
not be obligated to make any repairs, replacements or improvements
(whether structural or otherwise) of any kind or nature to the
Premises in connection with, or in consideration of, this
Lease.
5.2
Commencement Date . The
Commencement Date shall be determined pursuant to Exhibit
B .
6.
SUBORDINATION; ESTOPPEL CERTIFICATES;
ATTORNMENT .
6.1
Subordination and Attornment
. This Lease is and shall be subject and subordinate at
all times to: (a) all ground leases or underlying leases that may
now exist affecting the Premises; (b) any mortgage or deed of trust
that may now exist, and encumber, any or all of the Premises; and
(c) all or any portion of Landlord’s interest or estate in
any of said items. Tenant shall execute and deliver,
within ten (10) days of Landlord’s request, and in the form
reasonably requested by Landlord (or its lender), any documents
evidencing the subordination of this Lease to any existing or
future mortgage, deed of trust or ground lease, provided, that,
such documents include a nondisturbance agreement from the holder
of such mortgage, deed of trust or other documents in a form
reasonably acceptable to Tenant. Tenant hereby covenants
and agrees that Tenant shall attorn to any successor to
Landlord.
6.2
Estoppel Certificate . Tenant
agrees, from time to time and within 10 days after request by
Landlord, to deliver to Landlord, or Landlord’s designee, an
estoppel certificate in the form of Exhibit F
. Failure by Tenant to timely execute and deliver such
certificate shall constitute a Default, as defined below (without
any obligation to provide any notice thereof or any opportunity to
cure such failure to timely perform).
6.3
Transfer by Landlord . In the event of a
sale or conveyance by Landlord of the Premises, if the Successor
Landlord fully assumes the Landlord’s obligations herein, the
same shall operate to release Landlord from any liability for any
of the covenants or conditions, express or implied, herein
contained in favor of Tenant and first arising or accruing after
the effective date of Landlord’s transfer of its interest in
the Premises, and in such event Tenant agrees to look solely to
Landlord’s successor in interest (“ Successor
Landlord ”) with respect thereto and agrees to
attorn to such successor; provided however that it shall be a
condition to Landlord’s release of its obligations under
Exhibit B that any such Successor Landlord have
sufficient financial wherewithal and strength to perform the
obligations of Landlord under Exhibit B
hereunder.
7.
QUIET ENJOYMENT . Subject to the
provisions of this Lease, so long as Tenant pays all of the Rent
and performs all of its other obligations hereunder, Tenant shall
not be disturbed in its possession of the Premises by Landlord,
Agent or any other person lawfully claiming through or under
Landlord.
8.
ASSIGNMENT AND SUBLETTING
. Tenant shall not (a) assign (whether directly or
indirectly), in whole or in part, this Lease, or (b) mortgage or
pledge the Lease, or (c) sublet the Premises, in whole or in part,
without (in the case of any or all of (a) through (c) above) the
prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Tenant may, however,
assign this Lease or sublease a portion of the Premises to a
wholly-owned subsidiary, or as part of the sale of substantially
all the assets or equity interests of Tenant or as part of a
merger, without the prior consent of Landlord, so long as (a) such
assignment is not for the purpose of circumventing the provisions
of this Section 8, and (b) Landlord reasonably approves the
net worth and credit worthiness of such assignee. Furthermore, the
change in less than twenty-five percent (25%) of the membership
interests of the Tenant shall not constitute an assignment of this
Lease. In no event shall any assignment or sublease release Tenant
or any guarantor from any obligation or liability
hereunder. Any purported assignment, mortgage, transfer,
pledge or sublease made without the prior written consent of
Landlord shall be absolutely null and void. No
assignment of this Lease shall be effective and valid unless and
until the assignee executes and delivers to Landlord any and all
documentation reasonably required by Landlord in order to evidence
assignee’s assumption of all obligations of Tenant
hereunder. Regardless of whether or not an assignee or
sublessee executes and delivers any documentation to Landlord
pursuant to the preceding sentence, any assignee or sublessee shall
be deemed to have automatically attorned to Landlord in the event
of any termination of this Lease. If this Lease is
assigned, or if the Premises (or any part thereof) are sublet or
used or occupied by anyone other than Tenant, whether or not in
violation of this Lease, Landlord or Agent may (without prejudice
to, or waiver of its rights), collect Rent from the assignee,
subtenant or occupant. In the event of an assignment of
this Lease and the payment of consideration from the assignee to
the Tenant in connection therewith, 50% of such net consideration
(i.e., consideration remaining after payment of all costs, fees
(including broker and attorneys fees) and expenses incurred by
Tenant) shall be paid to Landlord. With respect to the
allocable portion of the Premises sublet, in the event that the
total rent and any other considerations received under any sublease
by Tenant is greater than (on a pro rata and proportionate basis)
the total Rent required to be paid, from time to time, under this
Lease, Tenant shall pay to Landlord fifty percent (50%) of such
excess as received from any subtenant and such amount shall be
deemed a component of the Additional Rent.
9.
COMPLIANCE WITH LAWS .
9.1
Compliance with Laws . Tenant
shall, at its sole expense (regardless of the cost thereof), comply
with all local, state and federal laws, rules, regulations and
requirements now or hereafter in force and all judicial and
administrative decisions in connection with the enforcement thereof
(collectively, “ Laws ”), whether such
Laws (a) pertain to either or both of the Premises and
Tenant’s use and occupancy thereof; (b) concern or address
matters of an environmental nature; (c) require the making of any
structural, unforeseen or extraordinary changes; and (d) involve a
change of policy on the part of the body enacting the same,
including, in all instances described in (a) through (d), but not
limited to, the Americans With Disabilities Act of 1990 (42 U.S.C.
Section 12101 et seq .). If any license or
permit is required for the conduct of Tenant’s business in
the Premises, Tenant, at its expense, shall procure such license
prior to the Commencement Date, and shall maintain such license or
permit in good standing throughout the Term. Tenant
shall give prompt notice to Landlord of any written notice it
receives of the alleged violation of any Law or requirement of any
governmental or administrative authority with respect to either or
both of the Premises and the use or occupation
thereof. The foregoing obligations of Tenant shall not
vitiate or otherwise affect Landlord’s obligations under
Exhibit B hereof.
9.2
Hazardous Materials . If, at any
time or from time to time during the Term (or any extension
thereof), any Hazardous Material (defined below) is generated,
transported, stored, used, treated or disposed of at, to, from, on
or in the Premises by, or as a result of any act or omission of,
any or all of Tenant and any or all of Tenant Parties (defined
below): (i) Tenant shall, at its own cost, at all times comply (and
cause all others to comply) with all Laws relating to Hazardous
Materials, and Tenant shall further, at its own cost, obtain and
maintain in full force and effect at all times all permits and
other approvals required in connection therewith; (ii) Tenant shall
promptly provide Landlord or Agent with complete copies of all
communications, permits or agreements with, from or issued by any
governmental authority or agency (federal, state or local) or any
private entity relating in any way to the presence, release, threat
of release, or placement of Hazardous Materials on or in the
Premises or any portion of the Premises, or the generation,
transportation, storage, use, treatment, or disposal at, on, in or
from the Premises, of any Hazardous Materials; (iii) Landlord,
Agent and their respective agents and employees shall have the
right to either or both (x) enter the Premises and (y) conduct
appropriate tests, at Tenant’s expense, for the purposes of
ascertaining Tenant’s compliance with all applicable Laws or
permits relating in any way to the generation, transport, storage,
use, treatment, disposal or presence of Hazardous Materials on, at,
in or from all or any portion of the Premises; and (iv) upon
written request by Landlord or Agent, Tenant shall cause to be
performed, and shall provide Landlord with the results of
reasonably appropriate tests of air, water or soil to demonstrate
that Tenant complies with all applicable Laws or permits relating
in any way to the generation, transport, storage, use, treatment,
disposal or presence of Hazardous Materials on, at, in or from all
or any portion of the Premises. This Section
9.2 does not authorize the generation, transportation,
storage, use, treatment or disposal of any Hazardous Materials at,
to, from, on or in the Premises in contravention of this
Section 9 . Tenant covenants to
investigate, clean up and otherwise remediate, at Tenant’s
sole expense, any release of Hazardous Materials during the Term
caused, contributed to, or created by any or all of (A) Tenant and
(B) any or all of Tenant’s officers, directors, members,
managers, partners, invitees, agents, employees, contractors or
representatives (“ Tenant Parties
”). Such investigation and remediation shall be
performed only after Tenant has obtained Landlord’s prior
written consent; provided, however, that Tenant shall be entitled
to respond (in a reasonably appropriate manner) immediately to an
emergency without first obtaining such consent. All
remediation shall be performed in strict compliance with Laws and
to the reasonable satisfaction of Landlord. Tenant shall
not enter into any settlement agreement, consent decree or other
compromise with respect to any claims relating to any Hazardous
Materials in any way connected to the Premises without first
obtaining Landlord’s written consent (which consent may be
given or withheld in Landlord’s sole, but reasonable,
discretion) and affording Landlord the reasonable opportunity to
participate in any such proceedings. As used herein, the
term, “ Hazardous Materials ,” means
any waste, material or substance (whether in the form of liquids,
solids or gases, and whether or not airborne) that is or may be
deemed to be or include a pesticide, petroleum, asbestos,
polychlorinated biphenyl, radioactive material, urea formaldehyde
or any other pollutant or contaminant that is or may be deemed to
be hazardous, toxic, ignitable, reactive, corrosive, dangerous,
harmful or injurious, or that presents a risk to public health or
to the environment, and that is or becomes regulated by any
Law. The undertakings, covenants and obligations imposed
on Tenant under this Section 9.2
shall survive the termination or expiration of this
Lease.
10.
INSURANCE .
10.1
Insurance to be Maintained by Landlord
. Landlord shall maintain: (a) a commercial
property insurance policy covering the Premises (at its full
replacement cost), but excluding Tenant’s personal property;
(b) commercial general public liability insurance covering Landlord
for claims arising out of liability for bodily injury, death,
personal injury, advertising injury and property damage occurring
in and about the Premises and otherwise resulting from any acts and
operations of Landlord, its agents and employees; (c) rent loss
insurance; and (d) any other insurance coverage deemed appropriate
by Landlord or required by Landlord’s lender. All
of the coverages described in (a) through (d) shall be determined
from time to time by Landlord, in its sole
discretion. All insurance maintained by Landlord shall
be in addition to and not in lieu of the insurance required to be
maintained by the Tenant.
10.2
Insurance to be Maintained by Tenant
.
10.2.1
Tenant
shall purchase, at its own expense, and keep in force at all
times from and after the date of this Lease, the policies of
insurance set forth below (collectively, “
Tenant’s Policies
”). All Tenant’s Policies shall (a) be
issued by an insurance company with a Best’s rating of
A or better and otherwise reasonably acceptable to Landlord,
and shall be licensed to do business in the state in which
the Premises is located; (b) provide that said insurance
shall not be canceled or materially modified unless 10
days’ prior written notice shall have been given to
Landlord; (c) provide for deductible amounts that are
reasonably acceptable to Landlord (and its lender, if
applicable); and (d) otherwise be in such form, and
include such coverages, as Landlord may reasonably
require. The Tenant’s Policies described in
(i) and (ii) below shall (1) provide coverage on an
occurrence basis; (2) name Landlord (and its lender, if
applicable) as an additional insured on all Tenant
Policies except for auto and worker’s compensation
insurance, which shall not name Landlord as an additional
insured; (3) provide coverage, to the extent insurable, for
the indemnity obligations of Tenant under this Lease; (4)
intentionally omitted; (5) be primary, not contributing with,
and not in excess of, coverage that Landlord may carry; and
(6) intentionally omitted.All Tenant’s Policies (or, at
Landlord’s option, Certificates of Insurance and
applicable endorsements, including, without limitation,
an “Additional Insured-Managers or Landlords of
Premises” endorsement) shall be delivered to Landlord
prior to the Commencement Date and renewals thereof shall be
delivered to Landlord’s notice addresses at least 30
days prior to the applicable expiration date of each
Tenant’s Policy. In the event that Tenant
fails, at any time or from time to time, to comply with the
requirements of the preceding sentence, Landlord may (i)
order such insurance and charge the cost thereof to Tenant,
which amount shall be payable by Tenant to Landlord upon
demand, as Additional Rent or (ii) impose on Tenant, as
Additional Rent, a monthly delinquency fee, for each month
during which Tenant fails to comply with the foregoing
obligation, in an amount equal to five percent (5%) of the
Base Rent then in effect. Tenant shall give prompt
notice to Landlord and Agent of any bodily injury, death,
personal injury, advertising injury or property damage
occurring in and about the Premises.
10.2.2.
Tenant
shall purchase and maintain, throughout the Term, a Tenant’s
Policy(ies) of (i) commercial general or excess liability
insurance, including personal injury and property damage, in the
amount of not less than $2,000,000.00 per occurrence, and
$5,000,000.00 annual general aggregate; (ii) comprehensive
automobile liability insurance covering Tenant against any personal
injuries or deaths of persons and property damage based upon or
arising out of the ownership, use, occupancy or maintenance of a
motor vehicle at the Premises and all areas appurtenant thereto in
the amount of not less than $1,000,000, combined single limit;
(iii) commercial property insurance covering Tenant’s
personal property (at its full replacement cost); and (iv)
workers’ compensation insurance per the applicable state
statutes covering all employees of Tenant; and (v) if Tenant
handles, stores or utilizes Hazardous Materials in its business
operations, pollution legal liability insurance.
10.3
Waiver of Subrogation
. Notwithstanding anything to the
contrary in this Lease, Landlord and Tenant mutually waive their
respective rights of recovery against each other and each
other’s officers, directors, constituent partners, members,
agents and employees, and Tenant further waives such rights against
(a) each lessor under any ground or underlying lease encumbering
the Premises and (b) each lender under any mortgage or deed of
trust or other lien encumbering the Premises (or any portion
thereof or interest therein), to the extent any loss is insured
against or required to be insured against under this Lease,
including, but not limited to, losses, deductibles or self-insured
retentions covered by Landlord’s or Tenant’s commercial
property, general liability, rent loss insurance, automobile
liability or workers’ compensation policies described
above. This provision is intended to waive, fully and
for the benefit of each party to this Lease, any and all rights and
claims that might give rise to a right of subrogation by any
insurance carrier. Each party shall cause its respective
insurance policy(ies) to be endorsed to evidence compliance with
such waiver.
11.
ALTERATIONS .
11.1
General . Except for the Tenant
Improvements which shall be constructed pursuant to
Landlord’s approval as referenced in Paragraph 1.6 of
Exhibit B and after the Commencement Date, Tenant
may, from time to time, at its expense, make alterations or
improvements in and to the Premises (hereinafter collectively
referred to as “ Alterations ”),
provided that Tenant first obtains the written consent of Landlord
not to be unreasonably withheld or delayed and only for alterations
valued at $50,000 or higher, provided that Landlord’s prior
consent shall not be required for modifications or alterations that
are purely decorative. All of the following shall apply
with respect to all Alterations: (a) the Alterations are
non-structural and the structural integrity of the Premises shall
not be affected; (b) the Alterations are to the interior of the
Premises; (c) the proper functioning of the mechanical, electrical,
heating, ventilating, air-conditioning (“
HVAC ”), sanitary and other service systems
of the Premises shall not be affected and the usage of such systems
by Tenant shall not be increased beyond published load limits; and
(d) Tenant shall have appropriate insurance coverage, reasonably
satisfactory to Landlord, regarding the performance and
installation of the Alterations. Additionally, before
proceeding with any Alterations, Tenant shall (i) at Tenant’s
expense, obtain all necessary governmental permits and certificates
for the commencement and prosecution of Alterations; (ii) if
Landlord’s consent is required for the planned Alteration,
submit to Landlord, for its written approval, working drawings,
plans and specifications and all permits for the work to be done
and Tenant shall not proceed with such Alterations until it has
received Landlord’s approval (if required); and (iii) cause
those contractors, materialmen and suppliers engaged to perform the
Alterations to deliver to Landlord certificates of insurance (in a
form reasonably acceptable to Landlord) evidencing policies of
commercial general liability insurance (providing the same
coverages as required in Section 10.2 above) and
workers’ compensation insurance. Such insurance
policies shall satisfy the obligations imposed under
Section 10.2 . Tenant shall cause the
Alterations to be performed in compliance with all applicable
permits, Laws and requirements of public authorities, and with
Landlord’s reasonable rules and regulations or any other
reasonable restrictions that Landlord may impose on the
Alterations. Tenant shall cause the Alterations to be
diligently performed in a good and workmanlike manner, using new
materials and equipment at least equal in quality and class to the
standards for the Premises established by Landlord. With
respect to any and all Alterations for which Landlord’s
consent is required, Tenant shall provide Landlord with “as
built” plans, copies of all construction contracts,
governmental permits and certificates and proof of payment for all
labor and materials, including, without limitation, copies of paid
invoices and final lien waivers. If Landlord’s
consent to any Alterations is required, and Landlord provides that
consent, then at the time Landlord so consents, Landlord shall also
advise Tenant whether or not Landlord shall require that Tenant
remove such Alterations at the expiration or termination of this
Lease. If Landlord requires Tenant to remove the
Alterations, then, during the remainder of the Term, Tenant shall
be responsible for the maintenance of appropriate commercial
property insurance (pursuant to Section 10.2 )
therefor; however, if Landlord shall not require that Tenant remove
the Alterations, such Alterations shall constitute Landlord’s
Property and Landlord shall be responsible for the insurance
thereof, pursuant to Section 10.1 .
11.2
Generator . Tenant shall have
the right to install a generator in the Premises, provided that the
installation and operation of said generator fully complies with
all applicable Laws, including but not limited to local codes or
similar laws or regulations pertaining to noise
levels.
11.3
Satellite Dish . Tenant shall
have the right to install a satellite dish upon the roof of the
Building, subject to full compliance with the following: Subject to
applicable governmental approvals and Landlord’s reasonable
discretion with regard to the location, aesthetics, screening and
installation (means and methods) of the installation, Tenant shall
have the right to use the roof of the Building for the installation
and operation of a satellite dish. Such roof rights and access
shall be rent free, but installation, screening and removal shall
be at Tenant’s sole cost and expense. Specifically, but not
in limitation of the foregoing, Tenant shall install and operate
any satellite dish in a manner so as to not injure or damage the
roof of the building or vitiate any roof warranty associated
therewith, and shall remove the satellite dish upon the expiration
or earlier termination of the Lease and repair any damage to the
roof or any other portion of the Premises resulting from such
removal.
12.
LANDLORD’S AND TENANT’S
PROPERTY . Except the generator, satellite
dish, air units for computer room, Liebert units, trade fixtures
associated specifically with the use of the Premises for purposes
of a medical care facility, health fitness center, pharmacy, drug
distribution center and items ancillary or related to the foregoing
which shall remain the property of Tenant and which may be removed
from the Premises by Tenant, all fixtures, machinery, equipment,
improvements and appurtenances attached to, or built into, the
Premises at the commencement of, or during the Term, whether or not
placed there by or at the expense of Tenant, shall become and
remain a part of the Premises; shall be deemed the property of
Landlord (the “ Landlord’s Property
”), without compensation or credit to Tenant; and shall not
be removed by Tenant at the Expiration Date unless Landlord
requires their removal (including, but not limited to, Alterations
pursuant to Section 11.1
). Further, any personal property in the Premises on the
Commencement Date, movable or otherwise, unless installed and paid
for by Tenant as part of furniture and equipment purchased with TI
Allowance (as defined on Exhibit B ), shall also
constitute Landlord’s Property and shall not be removed by
Tenant. In no event shall Tenant remove any of the
following materials or equipment without Landlord’s prior
written consent (which consent may be given or withheld in
Landlord’s sole discretion): any power wiring or
power panels, lighting or lighting fixtures, wall or window
coverings, carpets or other floor coverings, heaters, air
conditioners or any other HVAC equipment, fencing or security
gates, or other similar building operating equipment and
decorations. At or before the Expiration Date, or the
date of any earlier termination, Tenant, at its expense, shall
remove from the Premises all of Tenant’s personal property
and any Alterations that Landlord requires be removed pursuant to
Section 11.1, and Tenant shall repair (to
Landlord’s reasonable satisfaction) any damage to the
Premises resulting from either or both such installation and
removal. Any other items of Tenant’s personal
property that remain in the Premises after the Expiration Date, or
following an earlier termination date, may, at the option of
Landlord, be deemed to have been abandoned, and in such case, such
items may be retained by Landlord as its property or be disposed of
by Landlord, in Landlord’s sole and absolute discretion and
without accountability, at Tenant’s
expense. Notwithstanding the foregoing, if Tenant is in
Default under the terms of this Lease, Tenant may remove
Tenant’s personal property from the Premises only upon the
express written direction of Landlord.
13.
REPAIRS AND MAINTENANCE .
13.1
Tenant Responsibilities . Tenant
acknowledges that, with full awareness of its obligations under
this Lease, Tenant has accepted the condition, state of repair and
appearance of the Premises, subject to construction of the
Improvements and associated warranty obligations, pursuant to
Exhibit B . Except for (a)
Landlord’s obligations under Exhibit B and
(b) events of damage, destruction or casualty to the Premises
(as addressed in Section 18 below), Tenant agrees
that, at its sole expense, it shall put, keep and maintain the
Premises, including any Alterations and any altered, rebuilt,
additional or substituted buildings, structures and other
improvements thereto or thereon, in substantially the same
condition that exists on the Commencement Date (reasonable wear and
tear excepted), and in a safe condition, repair and appearance
(collectively, the “ Required Condition
”) and shall make all repairs and replacements reasonably
necessary therefore. Without limiting the foregoing, but
subject to the provisions of Exhibit B
regarding the Improvements warranty, Tenant shall promptly make all
structural and nonstructural, foreseen and unforeseen, ordinary and
extraordinary changes, replacements and repairs of every kind and
nature, and correct any patent or latent defects in the Premises,
which may be required to put, keep and maintain the Premises in the
Required Condition. Tenant will keep the Premises
orderly and free and clear of rubbish. Tenant covenants
to perform or observe all terms, covenants and conditions of any
easement, restriction, covenant, declaration or maintenance
agreement (collectively, “ Easements
”) to which the Premises are currently subject or become
subject pursuant to this Lease (provided that Landlord shall not
grant any future Easements which materially and adversely affect
Tenant’s use of the Premises), whether or not such
performance is required of Landlord under such Easements,
including, without limitation, payment of all amounts due from
Landlord or Tenant (whether as assessments, service fees or other
charges) under such Easements. Tenant shall deliver to
Landlord promptly, but in no event later than five (5) business
days after receipt thereof, copies of all written notices received
from any party thereto regarding the non-compliance of the Premises
or Landlord’s or Tenant’s performance of obligations
under any Easements. Tenant shall, at its expense, use
reasonable efforts to enforce compliance with any Easements
benefiting the Premises by any other person or entity or property
subject to such Easement. Except with respect to
Landlord’s obligations under Exhibit B ,
Landlord shall not be required to maintain,
repair or rebuild, or to make any alterations, replacements or
renewals of any nature to the Premises, or any part thereof,
whether ordinary or extraordinary, structural or nonstructural,
foreseen or not foreseen, or to maintain the Premises or any part
thereof in any way or to correct any patent or latent defect
therein. Tenant hereby expressly waives any right to
make repairs at the expense of Landlord which may be provided for
in any Law in effect at the Commencement Date or that may
thereafter be enacted. If Tenant shall vacate or abandon
the Premises, it shall give Landlord immediate written notice
thereof.
13.2
HVAC Maintenance Contract
. Tenant shall also maintain, in full force and effect,
a preventative maintenance and service contract with a reputable
service provider for maintenance of the HVAC systems of the
Premises (the “ HVAC Maintenance Contract
”). The terms and provisions of any such HVAC
Maintenance Contract shall require that the service provider
maintain the Premises’ HVAC system in accordance with the
manufacturer’s recommendations and otherwise in accordance
with normal, customary and reasonable practices in the geographic
area in which the Premises is located and for HVAC systems
comparable to the Premises’ HVAC system. Within 30
days following the Commencement Date, Tenant shall procure and
deliver to Landlord the HVAC Maintenance
Contract. Thereafter, Tenant shall provide to Landlord a
copy of renewals or replacements of such HVAC Maintenance Contract
no later than 30 days prior to the then-applicable expiry date of
the existing HVAC Maintenance Contract. If Tenant fails
to timely deliver to Landlord the HVAC Maintenance Contract (or any
applicable renewal or replacement thereof), then Landlord shall
have the right to contract directly for the periodic maintenance of
the HVAC systems in the Premises and to charge the cost thereof
back to Tenant as Additional Rent.
14.
UTILITIES . Tenant shall
purchase all utility services and shall provide for waste removal,
cleaning and extermination services. Tenant shall pay
the utility charges for the Premises directly to the utility or
municipality providing such services before they become
delinquent. Tenant shall be solely responsible for the
repair and maintenance of any meters necessary in connection with
such services. Tenant’s use of electrical energy
in the Premises shall not, at any time, exceed the capacity of
either or both of (x) any of the electrical conductors and
equipment in or otherwise servicing the Premises; and (y) the HVAC
systems of the Premises.
15.
INVOLUNTARY CESSATION OF SERVICES
. Landlord reserves the right, without any liability to
Tenant and without affecting Tenant’s covenants and
obligations hereunder, to stop service of any or all of the HVAC,
electric, sanitary, elevator (if any), and other systems serving
the Premises, or to stop any other services required by Landlord
under this Lease, whenever and for so long as may be necessary by
reason of (i) accidents, emergencies, strikes, or (ii) any other
cause beyond Landlord’s reasonable
control. Further, it is also understood and agreed that
Landlord or Agent shall have no liability or responsibility for a
cessation of services to the Premises that occurs as a result of
causes beyond Landlord’s or Agent’s reasonable
control. No such interruption of service shall be deemed
an eviction or disturbance of Tenant’s use and possession of
the Premises or any part thereof, or render Landlord or Agent
liable to Tenant for damages, or relieve Tenant from performance of
Tenant’s obligations under this Lease, including, but not
limited to, the obligation to pay Rent; provided, however, that if
any interruption of services persists for a period in excess of
five (5) consecutive business days Tenant shall, as Tenant’s
sole remedy, be entitled to a proportionate abatement of Rent to
the extent, if any, of any actual loss of use of the Premises by
Tenant.
16.
LANDLORD’S RIGHTS
. Landlord, Agent and their respective agents, employees
and representatives shall have the right to enter and/or
pass
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