EXHIBIT 10.12
OFFICE LEASE
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STATE OF North
Carolina:
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FINAL |
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COUNTY OF
Mecklenburg :
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THIS LEASE (the
“Lease”), is made this the 26 th day of May,
2000, by and between HIGHWOODS REALTY LIMITED
PARTNERSHIP , a North Carolina Limited Partnership ,
[ customize for each state’s ownership entity ]
hereinafter “Landlord” and STRATEGIC OUTSOURCING,
INC. , a Delaware corporation, hereinafter (whether one or
more) “Tenant”:
W I T
N E S S E T H :
Upon the terms and conditions
hereinafter set forth, Landlord leases to Tenant and Tenant leases
from Landlord property referred to as the Premises, all as
follows:
1. PREMISES . The
property hereby leased to Tenant is that area shown on
Exhibit A hereto attached, which consists of
approximately 16,878 rentable square feet, which is located in what
is sometimes called the Fourteen Parkway Building (the
“Building”), located at 5260 Parkway Plaza Business
Park, Suite 140, Charlotte, North Carolina (the
“Premises”).
If Landlord and Tenant desire for
improvements to be made to the Premises prior to the Commencement
Date such improvements shall be made pursuant to the workletter
attached hereto as Addendum 2 (the
“Workletter”).
2. TERM . This Lease
Term (the “Term”) is for sixty-six (66) months,
and shall commence on August 1, 2000
(“Commencement Date”), and shall expire (unless sooner
terminated or extended as herein provided) at midnight on
January 31, 2006 (“Expiration Date”). In
the event Landlord shall permit Tenant to take possession of the
Premises prior to the Commencement Date referenced above, all the
terms and conditions of this Lease shall apply.
If Landlord, for any reason
whatsoever, cannot deliver possession of the Premises to Tenant on
the Commencement Date, then this Lease shall not be void or
voidable, no obligation of Tenant shall be affected thereby, and
neither Landlord nor Landlord’s agents shall be liable to
Tenant for any loss or damage resulting from the delay in delivery
of possession; provided, however, that in such event, the
Commencement Date and Expiration Date of this Lease, and all other
dates that may be affected by their change, shall be revised to
conform to the date of Landlord’s delivery of possession to
Tenant. The above, however, is subject to the provision that the
period permitted for the delay of delivery of possession of the
Premises shall not exceed sixty (60) days after the
Commencement Date set forth in the first sentence of this
Section 2 (except that those delays beyond
Landlord’s control, including, without limitation, those
encompassed in the meaning of the term “force majeure”,
or caused by Tenant (the “Delays”) shall be excluded in
calculating such period). If Landlord does not deliver possession
to Tenant within such period, then Tenant may terminate this Lease
by written notice to Landlord; provided, that written notice shall
be ineffective if given after Tenant takes possession of any part
of the Premises, or if given more than seventy (70) days after
the original Commencement Date plus the time of any Delays. Unless
expressly otherwise provided herein, Rent (as hereinafter defined)
shall commence on the earlier of: (i) the Commencement Date;
(ii) occupancy of the Premises by Tenant for the operation of
its business; or (iii) the date Landlord could have had the
Premises ready had there been no Delays attributable to Tenant.
Unless the context otherwise so requires, the term
“Rent” as used herein includes both Base Rent and
Additional Rent as set forth in Section 4 .
If the Expiration Date, as determined
herein, does not occur on the last day of a calendar month, then
Landlord, at its option, may extend the Term by the number of days
necessary to cause the Expiration Date to occur on the last day of
the last calendar month of the Term. Tenant shall pay Base Rent and
Additional Rent for such additional days at the same rate payable
for the portion of the last calendar month immediately preceding
such extension. The Commencement Date, Term (including any
extension by Landlord pursuant to this Section 2 ) and
Expiration Date may be set forth in a commencement letter (the
“Commencement Letter”) prepared by Landlord and
executed by Tenant.
3. USE . The Premises
may be used only for general office purposes in connection with
Tenant’s present business and be occupied by no more than
Six (6) persons per One Thousand (1,000) rentable
square feet (the “Permitted Use”), but for no other use
without Landlord’s prior written consent. Tenant shall never
make any use of the Premises which is in violation of any
governmental laws, rules or regulations, whether now existing or
hereafter enacted or which is in violation of the general rules and
regulations for tenants (a copy of the present rules are attached
as Exhibit B ) as may be developed or modified from
time to time by Landlord effective as of the date delivered to
Tenant or posted on the Premises providing such rules are uniformly
applicable to all tenants in the Building (the “Rules and
Regulations”), nor may Tenant make any use of the Premises
not permitted, or otherwise prohibited, by any restrictive
covenants which apply to the Premises. Tenant may not make any use
that is or may be a nuisance or trespass, which increases any
insurance premiums, or makes such insurance unavailable to Landlord
on the Building. In the event of an increase in any of
Landlord’s insurance premiums which results from
Tenant’s use or occupancy of the Premises, if Tenant does not
pay Landlord, on demand, the amount of such increase, Landlord may
treat such use as a default hereunder.
4. RENT . As used
herein, the term “Rent” shall mean Base Rent (as
hereinafter defined) plus Additional Rent (as hereinafter defined).
Tenant shall pay to Landlord Rent, on or before the first day of
each calendar month during the Term, without previous demand or
notice therefor by Landlord and without set off or deduction;
provided, however, if the Term commences on a day other than the
first day of a calendar month, then Rent for such month shall be
(i) prorated for the period between the Commencement Date and the
last day of the month in which the Commencement Date falls, and
(ii) due and payable on the Commencement Date. Notwithstanding
anything contained herein to the contrary, Tenant’s
obligation, to pay Rent under this Lease is completely separate and
independent from any of Landlord’s obligations under this
Lease. For each monthly Rent payment Landlord receives after the
tenth (10 th ) day of the
month, Landlord shall be entitled to all remedies provided under
Sections 13 and 14 below, and a late charge in
the amount of five percent (5%) of all Rent due for such month. If
Landlord presents Tenant’s check to any bank and Tenant has
insufficient funds to pay for such check, then Landlord shall be
entitled to all remedies provided under Sections 13 and
14 below and a lawful bad check fee or five percent (5%) of
the amount of such check, whichever amount is less.
4.1 BASE RENT . The minimum
base rent for the Term shall be the sum of ONE MILLION FOUR
HUNDRED FOURTEEN THOUSAND SEVEN HUNDRED THIRTEEN AND 96/100 Dollars
($1,414,713.96) per Lease Addendum No. 1 (the “Base
Rent”). For the first twelve months of the Term, Base Rent
shall be payable, in advance, in equal monthly installments
of TWENTY-ONE THOUSAND FOUR HUNDRED FORTY-NINE AND 12/100
Dollars ($21,449.12) and thereafter shall be increased pursuant
to Section 27 below or as set forth on Lease Addendum
No. 1 .
4.2 ADDITIONAL RENT . As used
in this Lease, the term “Additional Rent” shall mean
all sums and charges, excluding Base Rent, due and payable by
Tenant under this Lease, including, but not limited to, the
following:
(a) sales or use tax imposed on
rents collected by Landlord or any tax on rents in lieu of ad
valorem taxes on the Building, even though laws imposing such taxes
attempt to require Landlord to pay the same; provided, however, if
any such sales or use tax shall be imposed on Landlord and Landlord
shall be prohibited by applicable law from collecting the amount of
such tax from Tenant as Additional Rent, then Landlord, upon sixty
(60) days prior written notice to Tenant, may terminate this
Lease, unless, legally, Tenant can and does reimburse Landlord for
such tax.
(b) Tenant’s Proportionate
Share (as hereinafter defined) of the increase in Landlord’s
Operating Expenses (as hereinafter defined) as set forth in
Addendum Number 3.
5. SERVICES BY LANDLORD
. Provided that Tenant is not then in default, Landlord shall cause
to be furnished to the Building, or as applicable, the Premises, in
common with other tenants, during business hours of 8:00
A.M. to 6:00 P.M. Monday through Friday (excluding National
and State holidays) and Saturdays 8:00 A.M to 1:00
P.M., the following services; janitorial services (five
(5) days a week after normal working hours), water (if
available from city mains) for drinking, lavatory and toilet
purposes, operatorless elevator service and heating and air
conditioning for the reasonably comfortable use and occupancy of
the Premises, provided heating and cooling conforming to any
governmental regulation prescribing limitations thereon shall be
deemed to comply with this service. Landlord shall furnish the
Premises with electricity for the maintenance of building standard
fluorescent lighting composed of 2’ x 4’ fixtures.
Incandescent fixtures, table lamps, all lighting other than the
aforesaid building standard fluorescent light,
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dimmers
and all lighting controls other than controls for the aforesaid
building standard florescent lighting shall be serviced, replaced
and maintained at Tenant’s expense. Landlord shall also
furnish the Premises with electricity for lighting for the
aforesaid building standard fluorescent lighting and for the
operation of general office machines, such as electric typewriters,
desk top computers, word processing equipment, dictating equipment,
adding machines and calculators, and general service non-production
type office copy machines. Landlord shall have the right to enter
and inspect the Premises and all electrical devices therein from
time to time, provided that Landlord shall have no obligation to
provide more than (3.5) watts per usable square foot of
electricity for convenience outlets serving the Premises. After
hours heating and air conditioning is available at a current charge
of ($15.00) per hour, with a minimum of Two (2) hour per
occurrence. All additional costs resulting from Tenant’s
extraordinary usage of heating, air conditioning or electricity
shall be paid by Tenant upon demand as Additional Rent for each
month or portion thereof, and Tenant shall not install equipment
with unusual demands for any of the foregoing without
Landlord’s prior written consent, which Landlord may withhold
if it determines that in its opinion such equipment may not be
safely used in the Premises or that electrical service is not
adequate therefor. If heat generating machines or equipment or
other intensive activities shall be used or carried on in the
Premises by Tenant which affect the temperature otherwise
maintained by the heating and air conditioning system, Landlord
shall have the right to install supplemental air conditioning units
in the Premises and the cost thereof, including the cost of
engineering and installation, and the cost of operation and
maintenance thereof, shall be paid by Tenant upon demand by
Landlord. Landlord shall further provide six (6) parking
spaces per One Thousand rentable square feet of unreserved free
parking, for Tenant’s employees and visitors throughout the
term of this Lease and any extensions thereof. There shall be no
abatement or reduction of Rent by reason of any of the foregoing
services not being continuously provided to Tenant. Landlord shall
provide Tenant with 101 after hour access cards to the Premises.
Should Tenant require additional cards, or require replacement
cards, a Ten Dollar ($10.00) charge will be assessed, for
each additional card or to replace each card.
Tenant shall report to Landlord
immediately any defective condition in or about the Premises known
to the best of Tenant’s knowledge and if such defect is not
so reported and such failure to promptly report results in other
damage, Tenant shall be liable for same. Landlord shall not be
liable to Tenant for any damage caused to Tenant and its property
due to the Building or any part or appurtenance thereof being
improperly constructed or being or becoming out of repair, or
arising from the leaking of gas, water, sewer or steam pipes, or
from problems with electrical service.
6. TENANT’S ACCEPTANCE
AND MAINTENANCE OF PREMISES; LANDLORD’S DUTIES AND RIGHTS
. Subject to the terms of the attached Workletter, if any,
Tenant’s occupancy of the Premises is Tenant’s
representation to Landlord that Tenant has examined and inspected
the same, finds the Premises to be as represented by Landlord and
satisfactory for Tenant’s intended use, and constitutes
Tenant’s acceptance “as is”. Landlord makes no
representation or warranty as to the condition of said Premises.
During Tenant’s move-in, a representative of Tenant must be
on-site with Tenant’s moving company to insure proper
treatment of the Building and the Premises. Any specialized use of
elevators must be coordinated with Landlord’s property
manager. Tenant must properly dispose of all packing material and
refuse in accordance with the Rules and Regulations. Any damage or
destruction to the Building or the Premises due to moving will be
the sole responsibility of Tenant. Tenant shall deliver at the end
of this Lease each and every part of the Premises in good repair
and condition, ordinary wear and tear and damage by insured
casualty excepted. The delivery of a key or other such tender of
possession of the Premises to Landlord or to an employee of
Landlord shall not operate as a termination of this Lease or a
surrender of the Premises except upon written notice by Landlord.
Tenant shall: (i) keep the Premises and fixtures in good
order; (ii) make repairs and replacements to the Premises or
Building needed because of Tenant’s misuse or primary
negligence; (iii) repair and replace special equipment or
decorative treatments installed by or at Tenant’s request and
that serve the Premises only, except if this Lease is ended because
of casualty loss or condemnation; and (iv) not commit waste.
Tenant, however, shall make no structural or interior alterations
of the Premises. If Tenant requires alterations, Tenant shall
provide Landlord’s managing agent with a complete set of
construction drawings, and such agent shall then determine the
actual cost of the work to be done (to include a construction
supervision fee of five percent (5%) to be paid to Landlord’s
managing agent). Tenant may then either agree to pay Landlord to
have the work done or withdraw its request for alterations. On
termination of this Lease or vacation of the Premises by Tenant,
Tenant shall restore the Premises, at Tenant’s sole expense,
to the same condition as existed at the Commencement Date, ordinary
wear and tear and damage by insured casualty only excepted.
Landlord, however, may elect to require Tenant to leave alterations
performed for Tenant unless at the time of such alterations
Landlord agreed in writing such alterations could be
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after
the filing thereof. Should Tenant fail to discharge such lien
within such ten (10) day period, then Landlord may discharge
the same, in which event Tenant shall reimburse Landlord, within
thirty (30) days, as Additional Rent, for the amount of the
lien or the amount of the bond, if greater, plus all reasonable
administrative costs incurred by Landlord in connection therewith.
The remedies provided herein shall be in addition to all other
remedies available to Landlord under this Lease or otherwise.
Tenant shall have no power to do any act or make any contract that
may create or be the foundation of any lien, mortgage or other
encumbrance upon the reversionary or other estate of Landlord, or
any interest of Landlord in the Premises. NO CONSTRUCTION LIENS OR
OTHER LIENS FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED TO THE
PREMISES SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND
TO THE PREMISES OR THE BUILDING.
Notwithstanding anything to the
contrary set forth above in this Section 6 , if Tenant
does not perform its maintenance obligations in a timely manner as
set forth in this Lease, commencing the same within five
(5) days after receipt of notice from Landlord specifying the
work needed and thereafter diligently and continuously pursuing
completion of unfulfilled maintenance obligations, then Landlord
shall have the right, but not the obligation, to perform such
maintenance, and any amounts so expended by Landlord shall be paid
by Tenant to Landlord within thirty (30) days after demand,
with interest at the maximum rate allowed by law (or the rate of
fifteen percent (15%) per annum, whichever is less) accruing from
the date of expenditure through the date paid.
Except for repairs and replacements
that Tenant must make under this Section 6 , Landlord
shall pay for and make all other repairs and replacements to the
Premises, common areas and Building (including Building fixtures
and equipment). This maintenance shall include the roof,
foundation, exterior walls, interior structural walls, all
structural components, and all exterior (outside of walls) systems,
such as mechanical, electrical, HVAC, and plumbing. Repairs or
replacements required under Section 6 shall be made
within a reasonable time (depending on the nature of the repair or
replacement needed) after receiving notice from Tenant or Landlord
having actual knowledge of the need for a repair or
replacement.
7. DAMAGES TO PREMISES .
If the Premises shall be partially damaged by fire or other
casualty insured under Landlord’s insurance policies, and if
Landlord’s lender(s) shall permit insurance proceeds paid as
a result thereof to be so used, then upon receipt of the insurance
proceeds, Landlord shall, except as otherwise provided herein,
promptly repair and restore the Premises (exclusive of improvements
made by Tenant, Tenant’s trade fixtures, decorations, signs,
and contents) substantially to the condition thereof immediately
prior to such damage or destruction; limited, however, to the
extent of the insurance proceeds received by Landlord. If by reason
of such occurrence: (i) the Premises is rendered wholly
untenantable; (ii) the Premises is damaged in whole or in part
as a result of a risk which is not covered by Landlord’s
insurance policies; (iii) Landlord’s lender does not
permit a sufficient amount of the insurance proceeds to be used for
restoration purposes; (iv) the-Premises is damaged in whole or
in part during the last two years of the Term; or (v) the
Building containing the Premises is damaged (whether or not the
Premises is damaged) to an extent of fifty percent (50%) or more of
the fair market value thereof, then Landlord may elect either to
repair the damage as aforesaid, or to cancel this Lease by written
notice of cancellation given to Tenant within forty-five
(45) days after the date of such occurrence, and thereupon
this Lease shall terminate. Tenant shall vacate and surrender the
Premises to Landlord within thirty (30) days after receipt of
such notice of termination. In addition, Tenant may also terminate
this Lease by written notice given to Landlord at any time between
the one hundred twenty-first (121st) and one hundred thirty-sixth
(136th) days after the occurrence of any such casualty, if Landlord
has failed to restore the damaged portions of the Building
(including the Premises) within one hundred twenty (120) days
of such casualty. However, if Landlord is prevented by Delays as
defined in Section 2 , from completing the restoration
within said one hundred twenty (120) day period, and if
Landlord provides Tenant with written notice of the cause for the
Delays within fifteen (15) days after the occurrence thereof,
such notice to contain the reason for the Delays and a good faith
estimate of the period of the Delays caused thereby, then Landlord
shall have an additional period beyond said one hundred twenty
(120) days, equal to the Delays in which to restore the
damaged areas of the Building; and Tenant may not elect to
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terminate this Lease until said additional period requited for
completion has expired with the Building not having been
substantially restored. In such case, Tenant’s fifteen
(15) day notice of termination period shall begin to run upon
the expiration of Landlord’s additional period for
restoration set forth in the preceding sentence. Upon the
termination of this Lease as aforesaid, Tenant’s liability
for the Rent and other charges reserved hereunder shall cease as of
the effective date of the termination of this Lease, subject,
however, to the provisions for Abatement of Rent hereinafter set
forth.
Unless this Lease is terminated as
aforesaid, this Lease shall remain in full force and effect, and
Tenant shall promptly repair, restore, or replace Tenant’s
improvements, trade fixtures, decorations, signs, and contents in
the Premises in a manner and to at least a. condition equal to that
existing prior to their damage or destruction, and the proceeds of
all insurance carried by Tenant on said property shall be held in
trust by Tenant for the purposes of such repair, restoration, or
replacement.
If, by reason of such fire or other
casualty, the Premises is rendered wholly untenantable, then the
Rent payable by Tenant shall be fully abated, or if only partially
damaged, such Rent and other charges shall be abated
proportionately as to that portion of the Premises rendered
untenantable, in either event (unless the Lease is terminated, as
aforesaid) from the date of such casualty until the Premises have
been substantially repaired and restored, or until Tenant’s
business operations are restored in the entire Premises, whichever
shall first occur. Tenant shall continue the operation of
Tenant’s business in the Premises or any part thereof not so
damaged during any such period to the extent reasonably practicable
from the standpoint of prudent business management. However, if
such damages or other casualty shall be caused by the negligence or
other wrongful conduct of Tenant or of Tenant’s subtenants,
licensees, contractors, or invitees, or their respective agents or
employees, there shall be no abatement of Rent. Except for the
abatement of the Rent hereinabove set forth, Tenant shall not be
entitled to, and hereby waives, all claims against Landlord for any
compensation or damage for loss of use of the whole or any part of
the Premises and/or for any inconvenience or annoyance occasioned
by any such damage, destruction, repair, or restoration.
8. ASSIGNMENT-SUBLEASE .
Tenant may not assign or encumber this Lease or its interest in the
Premises arising under this Lease, and may not sublet any part or
all of the Premises without first obtaining the written consent of
Landlord first had and obtained, which consent shall not be
unreasonably withheld. Any assignment or sublease to which Landlord
may consent (one consent not being any basis that Landlord should
grant any further consent) shall not relieve Tenant of any or all
of its obligations hereunder. For the purpose of this
Section 8 , the word “assignment” shall be
defined and deemed to include the following: (i) if Tenant is
a partnership, the withdrawal or change, whether voluntary,
involuntary or by operation of law, of partners owning thirty
percent (30%) or more of the partnership, or the dissolution of the
partnership; (ii) if Tenant consists of more than one person, an
assignment, whether voluntary, involuntary, or by operation of law,
by one person to one of the other persons that is a Tenant;
(iii) if Tenant is a corporation, any dissolution or
reorganization of Tenant, or the sale or other transfer of a
controlling percentage (hereafter defined) of capital stock of
Tenant other than to an affiliate or subsidiary or the sale of
fifty-one percent (51%) in value of the assets of Tenant;
(iv) if Tenant is a limited liability company, the change of
members whose interest in the company is fifty percent (50%) or
more. The phrase “controlling percentage” means the
ownership of, and the right to vote, stock Possessing at least
fifty-one percent (51%) of the total combined voting power of all
classes of Tenant’s capital stock issued, outstanding and
entitled to vote for the election of directors, or such lesser
percentage as is required to provide actual control over the
affairs of the corporation. Acceptance of Rent by Landlord after
any non-permitted assignment shall not constitute approval thereof
by Landlord. Notwithstanding the foregoing provisions of this
Section 8 , Tenant may assign or sublease part or all
of the Premises without Landlord’s consent to: (i) any
corporation or partnership that controls, is controlled by, or is
under common control with, Tenant; or (ii) any corporation
resulting from the merger or consolidation with Tenant or to any
entity that acquires all of Tenant’s assets as a going
concern of the business that is being conducted on the Premises, as
long as the assignee or sublessee is a bona fide entity and assumes
the obligations of Tenant, and continues the same Permitted Use as
provided under Section 3 . However, Landlord must be
given prior written notice of any such assignment or subletting,
and failure to do so shall be a default hereunder. Landlord will
never consent to an assignment or sublease that might result in a
use that conflicts with the rights of an existing tenant under its
lease. In no event shall this Lease be assignable by operation of
any law, and Tenant’s rights hereunder may not become, and
shall not be listed by Tenant as an asset under any bankruptcy,
insolvency or reorganization proceedings. Tenant is not, may not
become, and shall never
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represent itself to be an agent of Landlord, and Tenant
acknowledges that Landlord title is paramount, and that it can do
nothing to affect or impair Landlord’s title.
If Landlord consents to any
assignment or subletting, Tenant shall pay all reasonable
out-of-pocket costs and expenses incurred by Landlord in connection
with the assignment or sublease transaction, including
Landlord’s reasonable attorneys’ fees.
If this Lease shall be assigned or
the Premises or any portion thereof sublet by Tenant at a rental
that exceeds the rentals to be paid to Landlord hereunder,
attributable to the Premises or portion thereof so assigned or
sublet, then fifty percent (50%) of any such excess shall be paid
over to Landlord by Tenant. If Landlord assists Tenant in finding a
permissible subtenant Landlord shall be paid a mutually agreeable
fee for such assistance in addition to a fee in an amount necessary
to cover the subtenant’s improvements to the Premises or any
portion thereof so assigned or sublet.
9. TENANT’S
COMPLIANCE; INSURANCE REQUIREMENTS . Tenant shall comply with
all applicable laws, ordinances and regulations affecting the
Premises, now existing or hereafter adopted, including the Rules
and Regulations.
Throughout the Term, Tenant, at its
sole cost and expense, shall keep or cause to be kept for the
mutual benefit of Landlord, Landlord’s managing agent,
(presently Highwoods Realty Limited Partnership and its
affiliates) and Tenant, Commercial General Liability insurance
(1986 ISO Form or its equivalent) with a combined single limit,
each Occurrence and General Aggregate-per location of at least TWO
MILLION DOLLARS ($2,000,000), which policy shall insure against
liability of Tenant, arising out of and in connection with
Tenant’s use of the Premises, and which shall insure the
indemnity provisions contained herein. Not more frequently than
once every three (3) years, Landlord may require the limits to
be increased if in its reasonable judgment (or that of its
mortgagee) the coverage is insufficient. Tenant shall also carry
the equivalent of ISO Special Form Property Insurance on its
personal property and fixtures located in the premises and any
improvements made by Tenant for their full replacement value and
with coinsurance waived, and Tenant shall neither have, nor make,
any claim against Landlord for any loss or damage to the same,
regardless of the cause thereof.
Prior to taking possession of the
Premises, and annually thereafter, Tenant shall deliver to Landlord
certificates or other evidence of insurance satisfactory to
Landlord. All such policies shall be non-assessable and shall
contain language to the extent obtainable that: (i) any loss
shall be payable notwithstanding any act or negligence of Landlord
or Tenant that might otherwise result in forfeiture of the
insurance, (ii) that the policies are primary and
non-contributing with any insurance that Landlord may carry, and
(iii) that the policies cannot be canceled, non-renewed, or
coverage reduced except after thirty (30) days’ prior
written notice to Landlord. If Tenant fails to provide Landlord
with such certificates or other evidence of insurance coverage,
Landlord may obtain such coverage and Tenant shall reimburse the
cost thereof on demand.
Anything in this Lease to the
contrary notwithstanding, Landlord hereby releases and waives unto
Tenant (including all partners, stockholders, officers, directors,
employees and agents thereof), its successors and assigns, and
Tenant hereby releases and waives unto Landlord (including all
partners, stockholders, officers, directors, employees and agents
thereof), its successors and assigns, all rights to claim damages
for any injury, loss, cost or damage to persons or to the Premises
or any other casualty, as long as the amount of which injury, loss,
cost or damage has been paid either to Landlord, Tenant, or any
other person, firm or corporation, under the terms of any Property,
General Liability, or other policy of insurance, to the extent such
releases or waivers are permitted under applicable law. As respects
all policies of insurance carried or maintained pursuant to this
Lease and to the extent permitted under such policies, Tenant and
Landlord each waive the insurance carriers’ rights of
subrogation. Subject to the foregoing: (a)Tenant shall indemnify
and hold Landlord harmless from and against any and all claims
arising out of (i) Tenant’s use of the Premises or any
part thereof, (ii) any activity, work, or other thing done,
permitted or suffered by Tenant in or about the Premises or the
Building, or any part thereof, (iii) any breach or default by
Tenant in the performance of any of its obligations under this
Lease, or (iv) any act or negligence of Tenant, or any
officer, agent, employee contractor, servant, invitee or guest of
Tenant; and in each case from and against any and all damages,
losses, liabilities, lawsuits, costs and expenses (including
attorneys’ fees at all tribunal levels) arising in connection
with any such claim or claims as described in (i) through,
(iv) above, or any action brought thereon; and
(b) Landlord shall indemnify and hold Tenant harmless from and
against any and all claims arising out of any act of negligence of
Landlord with respect to the Premises and, the common areas of the
Building, including any and all damages, losses, liabilities,
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lawsuits, costs and expenses including attorney’s fees at all
tribunal levels arising in connection with any such claim or claims
as described above.
If such action is brought against
Landlord, Tenant upon notice from Landlord shall defend the same
through counsel selected by Tenant’s insurer, or other
counsel acceptable to Landlord. Tenant assumes all risk of damage
or loss to its property or injury or death to persons in, on, or
about the Premises, from all causes except those for which the law
imposes liability on Landlord regardless of any attempted waiver
thereof, and Tenant hereby waives such claims in respect thereof
against Landlord. The provisions of this paragraph shall survive
the termination of this Lease.
Landlord shall keep the Building,
including the improvements, insured against damage and destruction
by perils insured by the equivalent of ISO Special
Form Property Insurance in the amount of the full replacement
value of the Building.
Each party shall keep its personal
property and trade fixtures in the Premises and Building insured
with the equivalent of ISO Special Form Property Insurance in
the amount of the full replacement cost of the property and
fixtures. Tenant shall also keep any non-standard improvements made
to the Premises at Tenant’s request insured to the same
degree as Tenant’s personal property.
Tenant’s insurance policies
required by this Lease shall: (i) be issued by insurance
companies licensed to do business in the state in which the
Premises are locked with a general policyholder’s ratings of
at least A- and a financial rating of at least VI in the most
current Best’s Insurance Reports available on the
Commencement Date, or if the Best’s ratings are changed or
discontinued, the parties shall agree to a comparable method of
rating insurance companies; (ii) name the non-procuring party
as an additional insured as its interest may appear [other
landlords or tenants may be added as additional insureds in a
blanket policy]; (iii) provide that the insurance not be
canceled, non-renewed or coverage materially reduced unless thirty
(30) days advance notice is given to the non-procuring party;
(iv) be primary policies; (v) provide that any loss shall
be payable notwithstanding any gross negligence of Landlord or
Tenant which, might result in a forfeiture thereunder of such
insurance or the amount of proceeds payable; (vi) have no
deductible exceeding TEN THOUSAND DOLLARS ($10,000), unless
accepted in writing by Landlord; and (vii) be maintained
during the entire Term and any extension terms.
10.
SUBORDINATION-ATTORNMENT-LANDLORD FINANCING . Tenant agrees
that this Lease will be either subordinate or superior to any
mortgage heretofore or hereafter executed by Landlord covering the
Premises, depending on the requirements of such mortgagee. Tenant,
within ten (10) days after request to do so from Landlord or
its mortgagee, will execute such agreement making this Lease
superior or subordinate and containing such other agreements and
covenants on Tenant’s part as Landlord’s mortgagee may
request, and will agree to attorn to said mortgagee provided the
mortgagee agrees not to disturb Tenant’s possession hereunder
so long as Tenant is in compliance with this Lease. Further, Tenant
agrees to execute within five (5) days after request therefor, and
as often as reasonably requested, estoppel certificates confirming
any factual matter requested therein which is true and is within
Tenant’s knowledge regarding this Lease, the Premises, or
Tenant’s use thereof, including, but not limited to date of
occupancy, Expiration Date, the amount of Rent due and date to
which Rent is paid, whether or not Tenant has any defense or
offsets to the enforcement of this Lease or the Rent payable
hereunder or knowledge of any default or breach by Landlord, and
that this Lease together with any modifications or amendments is in
full force and effect. Tenant shall attach, to such estoppel
certificate copies of all modifications or amendments.
Tenant agrees to give any mortgagee
of Landlord which has provided a non-disturbance agreement to
Tenant, notice of, and a reasonable opportunity (which shall in no
event be less than thirty (30) days after written notice
thereof is delivered to mortgagee as herein, provided) to cure, any
Landlord default hereunder; and Tenant agrees to accept such cure
it effected by such mortgagee. No termination of this Lease by
Tenant shall be effective until such notice has been given and the
cure period has expired without the default having been cured.
Further, Tenant agrees to permit such mortgagee (or other purchaser
at any foreclosure sale), and its successors and assigns, on
acquiring Landlord’s interest in the Premises and the Lease,
to become substitute Landlord hereunder, with liability only for
such Landlord obligations as accrue after Landlord’s interest
is so acquired. Tenant agrees to attorn to any successor
Landlord.
11. SIGNS . Tenant may
not erect, install or display any sign or advertising material upon
the Building exterior, the exterior of the Premises (including any
exterior doors), or the exterior walls
7
therefor, or in any window therein, without the prior written
consent of Landlord. Landlord will provide a sign for Tenant at the
entrance to its Premises and on a building directory. Landlord
agrees that Tenant, as part of Tenant’s improvements as set
forth in Addendum ___, and at Tenant’s sole cost and expense,
shall be allowed to erect Park standard building mounted signage,
the design and location of which shall be subject to the prior
written consent of Landlord. No sign other than the
Landlord’s standard building sign may be placed on the
Premises without the prior consent of Landlord.
12. ACCESS TO PREMISES .
Landlord shall have the right, at all reasonable times with
reasonable notice (provided however no notice shall be required in
any circumstance that Landlord considers an emergency situation),
either itself or through its authorized agents, to enter the
Premises (i) to make repairs, alterations or changes as
Landlord deems necessary, (ii) to inspect the Premises, and
(iii) to show the Premises to prospective mortgagees and
purchasers. Landlord shall have the right, either itself or through
its authorized agents, to enter the Premises at all reasonable
times for inspection to show prospective tenants if within one
hundred eighty (180) days prior to the Expiration Date as
extended by any exercised option. Tenant, its agents, employees,
invitees, and guests, shall have the right of ingress and egress to
common and public areas of the Building, provided Landlord by
reasonable regulation may control such access for the comfort,
convenience, safety and protection of all tenants in the Building,
or as needed for making repairs and alterations. Tenant shall be
responsible for providing access to the Premises to its agents,
employees, invitees and guests after hours, but in no event shall
Tenant’s use of and access to the Premises after hours
compromise the security of the Building. Landlord shall have the
right to enter the Premises at any time in the event of an
emergency.
13. DEFAULT . If Tenant:
(i) fails to pay when due any Rent, or any other sum of money
which Tenant is obligated to pay, as provided in this Lease; or
(ii) breaches any other agreement, covenant or obligation
herein set forth and such breach shall continue and not be remedied
within fifteen (15) days after Landlord shall have given
Tenant written notice specifying the breach, or if such breach
cannot, with due diligence, be cured within said period of fifteen
(15) days and Tenant does not within said fifteen
(15) day period commence and thereafter with reasonable
diligence completely cure the breach within thirty (30) days
after notice; or (iii) files (or has filed against it and not
stayed or vacated within sixty (60) days after filing) any
petition or action for relief under any creditor’s law
(including bankruptcy, reorganization, or similar action), either
in state or federal court; or (iv) makes any transfer in fraud
of creditors as defined in Section 548 of the United States
Bankruptcy Code (11 U.S.C. 548, as amended or replaced), has a
receiver appointed for its assets (and appointment shall not have
been stayed or vacated within thirty (30) days), or makes an
assignment for benefit of creditors; then Tenant shall be in
default hereunder, and, in addition to any other lawful right or
remedy which it may have, Landlord at its option may do the
following: (i) terminate this Lease; (ii) repossess the
Premises, and with or without terminating, relet the same at such
amount as Landlord deems reasonable; and if the amount for which
the Premises is relet is less than Tenant’s Rent and all
other obligations of Tenant to Landlord hereunder, then Tenant
shall immediately pay the difference on demand to Landlord, but if
in excess of tenant’s Rent, and all other obligations of
Tenant hereunder, the entire amount obtained from such reletting
shall belong to Landlord, free of any claim of Tenant thereto; or
(iii) without obtaining any court authorization, lock the
Premises and deny Tenant access thereto. All reasonable expenses of
Landlord in repairing, restoring, or altering the Premises for
reletting as general office space, together with leasing fees and
all other expenses in seeking and obtaining a new Tenant, shall be
charged to and be a liability of Tenant. Landlord’s
reasonable attorneys’ fees in pursuing any of the foregoing
remedies, or in collecting any Rent due by Tenant hereunder, shall
be paid by Tenant.
All rights and remedies of Landlord
are cumulative, and the exercise of any one shall not be an
election excluding Landlord at any other time from exercise of a
different or inconsistent remedy. No exercise by Landlord of any
right or remedy granted herein shall constitute or effect a
termination of this Lease unless Landlord shall so elect by written
notice delivered to Tenant.
The failure of Landlord to exercise
its rights in connection with this Lease or any breach or violation
of any term, or any subsequent breach of the same or any other
term, covenant or condition herein contained shall not be a waiver
of such term, covenant or condition or any subsequent breach of the
same Or any other covenant or condition herein contained.
No acceptance by Landlord of a lesser
sum than the Base Rent, administrative charges, Additional Rent and
other sums then due shall be deemed to be other than on account of
the earliest installment of such payments due, nor shall any
endorsement or statement on any check or any letter accompanying
any check or payment be deemed as accord and satisfaction,
and
8
Landlord
may accept such check or payment without prejudice to
Landlord’s right to recover the balance of such installment
or pursue any other remedy provided in this Lease.
In addition, no payments of money by
Tenant to Landlord after the expiration or termination of this
Lease after the giving of any notice by Landlord to Tenant shall
reinstate or extend the Term, or make ineffective any notice given
to Tenant prior to the payment of such money. After the service of
notice or the commencement of a suit, or after final judgment
granting Landlord possession of the Premises, Landlord may receive
and collect any sums due under this Lease, and the payment thereof
shall not make ineffective any notice or in any manner affect any
pending suit or any judgment previously obtained.
Tenant further agrees that Landlord
may obtain an order for summary ejectment from any court of
competent jurisdiction without prejudice to Landlord’s rights
to otherwise collect rents from Tenant.
14. MULTIPLE DEFAULTS
.
(a) Tenant acknowledges that any
rights or options of first refusal, or to extend the Term, to
expand the size of the Premises, to purchase the Premises or the
Building, or other such or similar rights or options
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