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Exhibit 10.30
OFFICE BUILDING LEASE
55 East Jackson Boulevard
Chicago, Illinois 60604
Between
55 E. JACKSON LLC,
as Landlord
and
ASSET ACCEPTANCE, LLC
as Tenant
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TABLE OF CONTENTS
1. BASE
RENT.
2. ADDITIONAL
RENT.
3.
OCCUPANCY.
4. CONDITION OF
PREMISES.
5.
POSSESSION.
6. SERVICES.
7. REPAIRS.
8. ADDITIONS AND
ALTERATIONS.
9. COVENANT
AGAINST LIENS.
10. INSURANCE.
11. FIRE OR
CASUALTY.
12. WAIVERS OF CLAIMS
-- INDEMNIFICATION.
13. NONWAIVER.
14. CONDEMNATION.
15. ASSIGNMENT AND
SUBLETTING.
16. SURRENDER OF
POSSESSION.
17. HOLDING OVER.
18. ESTOPPEL
CERTIFICATE.
19. SUBORDINATION.
20. CERTAIN RIGHTS
RESERVED BY LANDLORD.
21. RULES AND
REGULATIONS.
22. LANDLORD'S
REMEDIES.
23. EXPENSES OF
ENFORCEMENT.
24. MISCELLANEOUS.
25. WAIVER OF
NOTICE.
26. NOTICES.
27. SECURITY
DEPOSIT.
28. REAL ESTATE
BROKER.
29. COVENANT OF QUIET
ENJOYMENT.
30. CORPORATE
GUARANTY.
31. RIGHT OF SECOND
REFUSAL.
32. OPTION TO
RENEW.
33. PARKING.
33. WAIVER OF JURY
TRIAL AND COUNTERCLAIM.
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[FLOOR PLAN]
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OFFICE BUILDING LEASE
THIS
LEASE is made as of the 25th day of April, 2005 by and between
55
E. JACKSON LLC, an Illinois limited liability company, ("Landlord")
and ASSET
ACCEPTANCE, LLC, a Delaware limited liability company,
("Tenant").
Landlord hereby leases to Tenant and Tenant hereby accepts the
premises
(the "Premises") designated on the plan attached hereto as Exhibit
"A",
comprised of approximately 20,905 rentable square feet known as
Suite 1600 in
the building (the "Building") located on the Land (the "Land")
known as 55
East Jackson Boulevard, Chicago, Illinois 60604, for the term of
seven (7) years
commencing ten (10) days after substantial completion of Landlord's
Work
(hereinafter defined, on or about the 1st day of July, 2005, the
"Commencement
Date") and terminating on the last day of the eighty-fourth (84th)
full Lease
month thereafter (on or about the 30th day of June, 2012, the
"Expiration
Date"), both dates inclusive (the "Term"), unless extended or
sooner terminated
as provided herein.
In
consideration thereof, Landlord and Tenant covenant and agree
as
follows:
1.
BASE RENT. Tenant
shall pay to Landlord at the office of Landlord or
at such other place as Landlord may designate the monthly Base Rent
as follows:
PERIOD
MONTHLY BASE RENT
------
-----------------
Commencement Date through 12th Lease Month
$34,406.00
13th Lease Month through 24th Lease Month
$35,438.00
25th Lease Month through 36th Lease Month
$36,501.00
37th Lease Month through 48th Lease Month
$37,597.00
49th Lease Month through 60th Lease Month
$38,724.00
61st Lease Month through 72nd Lease Month
$39,886.00
73rd Lease Month through Expiration Date
$41,083.00
Each
monthly Base Rent payment shall be made in advance on the first
day
of each and every month during the Term, without any set-off or
deduction
whatsoever. If the Term commences other than on the first day of a
month or
ends other than on the last day of the month, the Base Rent for
such month
shall be prorated, and the prorated rent for the portion of the
month in which
the Term commences shall be paid at the time of execution of this
Lease.
Notwithstanding anything to the contrary contained herein, so long
as
Tenant is not in material economic default under any of the terms,
conditions
or obligations of this Lease, monthly Base Rent shall abate for the
first three
(3) full calendar months of the Term.
2.
ADDITIONAL RENT. All
amounts required or provided to be paid by Tenant
under this Lease in addition to base rent shall be deemed rent, and
the failure
to pay the same shall be treated in all events as the failure to
pay rent.
Tenant hereby agrees to pay the following amounts as Additional
Rent to
Landlord:
(a) TAXES. Landlord
shall pay all real estate taxes and assessments,
both
general and special, sewer rents, rates and charges, transit
taxes,
taxes based upon the receipt of rent, and any other federal, state
or local
governmental charge, general, special, ordinary or extraordinary
(but not
including income or franchise taxes, capital stock, inheritance,
estate,
gift
or any other taxes imposed upon or measured by the Landlord's
income
or
profits, unless the same shall be imposed in lieu of real estate
or
other ad valorem taxes) which may now or hereafter be levied,
assessed or
imposed against the Building or the Land or both during the term of
this
Lease (collectively, the "Taxes"). Taxes shall also include the
amount of
(i)
any gross receipts tax, sales tax or similar tax (but excluding
therefrom any income tax) payable, or which will be payable by
Landlord, by
reason of the receipt of the monthly base rent and adjustments
thereto;
(ii)
any other tax, assessment, levy, imposition or charge or any
part
thereof imposed upon Landlord in place of or partly in place of any
of the
foregoing Taxes and measured by or based in whole or in part upon
the Land
or
the Building or the rents or other income therefrom to the extent
that
they
are so measured or based (but only to the extent that such items
would
be
payable if the Land or the Building were the only property of
Landlord
subject thereto and the income received by Landlord from the Land
or
Buildings were the only income of Landlord); and (iii) any
personal
property taxes (attributable to the calendar year in which paid)
imposed
upon
the furniture, fixtures, machinery, equipment, apparatus, systems
and
appurtenances used in connection with the Land or the Building or
the
operation thereof. Tenant shall pay to Landlord as Additional Rent
for
Taxes an amount equal to Tenant's Proportionate Share (as defined
below) of
the
Taxes which are in excess of the Taxes paid in the Base Year of
2005.
If
the
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calendar year is only partially within the Term, the payment to be
made by
Tenant shall be proportionately reduced. The obligation of Tenant
to make this
payment shall survive the expiration or other termination of the
Lease.
The
tax and assessment bills used in calculating Tenant's obligation
for
Additional Rent for Taxes in each calendar year shall be those
which become due
for payment during such calendar year, without regard to the period
for which
the tax assessment is levied or assessed and without regard to
whether or not
the Lease was in existence during such period. If, however, there
is a change in
the time payment of taxes during the term of the Lease which would
result in
Tenant paying taxes allocable to a period longer or shorter than
the term of the
Lease, the tax payments for the last calendar year shall be
equitably adjusted
so that the period for which the Tenant pays taxes is of the same
duration as
the term of the Lease (although it may not be the same period of
time).
If
special assessments or other special taxes payable in installments
are
levied against the Premises, Landlord may pay assessments or taxes
in
installments, and if so paid, all interest payments (with respect
to such
installment only) shall be considered part of the assessment for
the purposes of
this provision.
If
the Landlord contests the amount of any taxes or assessments,
the
attorneys fees and expenses incurred in conducting such a contest,
not to exceed
any resultant savings therefrom, shall be considered a part of the
tax payment
for the purposes of this provision. If the result of such a contest
is to defer
the time of payment of taxes to a later date or to obligate the
Landlord to pay
any additional taxes or assessments in the year in which the tax or
assessment
was originally due, Taxes shall be recalculated and Tenant shall
pay the
additional amount due. If such a contest results in a refund to
Landlord at a
later date, the additional rent for taxes and assessments for the
year in which
the tax or assessments was originally due shall be recalculated,
and Landlord
shall pay Tenant its share of the refund.
Tenant shall have the right to examine the tax and assessment bills
on
written request.
(b)
OPERATING EXPENSES. Tenant shall pay to Landlord as Additional Rent
for
Operating Expenses, an amount equal to Tenant's Proportionate Share
of the
Operating Expenses (as hereinafter defined) which are in excess of
the Operating
Expenses incurred in the Base Year of 2005. If the calendar year is
only
partially within the Term, the payment to be made by Tenant shall
be
proportionately reduced. The obligation of Tenant to make this
payment shall
survive the expiration or other termination of the Lease.
For purposes of this
Paragraph 2(b), the term "Operating Expenses" shall
mean and include all expenses, costs, fees and disbursements paid
or incurred
(determined for each year on an accrual basis) by or on behalf of
Landlord for
owning, managing, operating, maintaining and repairing the Building
and the Land
and the personal property used in conjunction therewith
(collectively, the
"Project"), including (without limitation) the cost of electricity
serving
common Building areas, all costs, charges and expenses incurred by
Landlord in
connection with any change of any company or method of providing to
the Building
electricity or Chilled Water or any other utility service or the
like,
including, without limitation, maintenance, repair, installation,
and service
costs associated therewith, steam, water, gas, fuel, heating,
lighting,
air-conditioning, window cleaning, common area janitorial service,
insurance,
including but not limited to fire, extended coverage liability,
workmen's
compensation, elevator, or any other insurance applicable to the
Project carried
by the Landlord or required by the Landlord's lender, if any,
painting,
uniforms, management fees, costs of operating an on-site management
office,
rent, ground rental payments, supplies, sundries, sales or use
taxes on supplies
or services, cost of wages and salaries of all persons engaged in
the operation,
administration, maintenance and repair of the Project and fringe
benefits, cost
of any pensions, hospitalization, welfare or retirement plans, or
any other
similar or like expenses incurred under the provisions of any
collective
bargaining agreement, or any other cost or expense which Landlord
pays or incurs
to provide benefits for employees so engaged in the operation,
administration,
maintenance and repair of the Project, the charges of any
independent contractor
who under contract with the Landlord or its representatives, does
any of the
work of operating, maintaining or repairing of the Project, legal
and accounting
expenses, or any other expense or charge, whether or not
hereinbefore mentioned,
which in accordance with generally accepted accounting and
management principles
respecting similar office/warehouse buildings in the Chicago
metropolitan area
would be considered as an expense of owning, managing, operating,
maintaining or
repairing the Project. Operating Expenses shall not include cost or
other items
included within the meaning of the term Taxes, costs of alterations
of the
premises of tenants of the Building, depreciation charges, interest
and
principal payments on mortgages, real estate brokerage and leasing
commissions,
except as hereinafter provided. Operating Expenses shall
include
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depreciation, interest and other acquisition costs and any after
cost
incurred with respect to machinery, equipment, systems,
property,
facilities, or capital improvements or repairs first made,
installed in or
upon
used in connection with the Building after the date of this
Lease
which are intended to reduce Operating Expenses or which are
required under
any
governmental laws, regulations, or ordinances and which were
not
required for the Building at the time it was constructed, amortized
over
such
reasonable period as Landlord shall determine, together with
interest
on
the unamortized cost of such improvement (at the prevailing
construction
loan
rate available to Landlord on the date the cost of such
improvement
was
incurred).
Notwithstanding anything to the contrary contained herein, and
during
the
first (1st) four (4) years of the Term only, those Operating
Expenses
which are controllable by Landlord, which are used in part to
compute the
portion of Tenant's Additional Rent therefor, shall not increase by
more
than
four percent (4%) (the "Cap Percentage") from one year to the
following year provided, however, if for any one year to the
following year
the
increase is less than the Cap Percentage, then the difference may
be
applied to any future increase(s) from one year to the next year
such that
the
cap applicable to that future year-to-year increase(s) in
Operating
Expenses may be higher than the Cap Percentage and, further, the
amount of
Operating Expenses that falls outside the Cap Percentage for a year
may be
included in the unused portion of a future year's Cap
Percentage.
If the Building is not fully occupied during all or any portion of
any
calendar year during the Term, Landlord may elect, on a consistent
basis,
to
make an appropriate adjustment of variable Operating Expenses for
such
year
(including the Base Year), employing sound management principles,
to
determine the amount of variable Operating Expenses that would have
been
paid
or incurred by the Landlord had the Building been fully occupied
and
the
amount so determined shall be deemed to have been the amount of
variable Operating Expenses for such calendar year (including the
Base
Year). Landlord shall keep or cause to be kept records showing
the
Operating Expenses for each calendar year, and Tenant may examine
these
records upon written request only within six (6) months of the
expiration
of
the subject calendar year.
(c) ELECTRICITY, A/C USAGE FEES. Tenant shall pay to Landlord
as
Additional Rent for central air conditioning usage (chilled water),
as set
forth in Paragraph 6A(a) hereinbelow, an A/C Usage Fee based on
proportionate share of service provided thereby.
(d) PAYMENT OF ADDITIONAL RENT. Landlord shall from time to
time
deliver to Tenant a written notice or notices ("Projection Notice")
setting
forth Landlord's reasonable estimates, forecasts or projections
(collectively, the "Projections") of Taxes and Operating Expenses
with
respect to the current calendar year. On or before the first day of
the
next
calendar month following Landlord's service of a Projection
Notice,
and
on or before the first day of each month thereafter, Tenant shall
pay
to
Landlord on account one-twelfth (1/12) of the amount of
Tenant's
Proportionate Share of the Projections as shown in the Projection
Notice.
Following the end of each calendar year and after Landlord shall
have
determined the actual amount of Taxes and Operating Expenses for
such
calendar year, Landlord shall notify Tenant in writing of
Tenant's
Proportionate Share of such Taxes and Operating Expenses. If
Tenant's
Proportionate Share of such Taxes and Operating Expenses exceeds
the
respective amounts paid for such calendar year by Tenant, Tenant
shall,
within thirty (30) days after the date of Landlord's notice pay to
Landlord
an
amount equal to such excess. If the said amounts paid for such
calendar
year
by Tenant exceed Tenant's Proportionate Share of such Taxes and
Operating Expenses, then Landlord shall credit such excess to Rent
payable
after the date of Landlord's notice until such excess has been
exhausted.
If
this Lease shall expire prior to full application of such
excess,
Landlord shall pay to Tenant the balance not theretofore applied
against
Rent
and not reasonably required for payment of Additional Rent for
the
calendar year in which the Lease expires. No interest or penalties
shall
accrue on any amounts which Landlord is obligated to credit or to
pay to
Tenant by reason of this Section.
(e) GROSS RENTABLE AREA. The parties agree that the present
gross
rentable area of the Building is 434,169 square feet and of the
Premises is
20,905 rentable square feet and that Tenant's Proportionate Share
for
purposes of Additional Rent is 4.815%. If there is any physical
change to
the
Building or the Premises which causes the gross rentable area
to
change, Landlord shall give Tenant prompt notice thereof, and
Landlord
shall adjust the figures appropriately, and the additional rents
payable
thereafter shall be appropriately prorated to reflect the change in
gross
rentable area.
3.
OCCUPANCY. Tenant shall use and occupy the Premises for general
office
purposes and no other purpose.
3
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4.
CONDITION OF PREMISES. (a) The Tenant's taking possession shall
be
conclusive evidence that the Premises and the Building were in good
order and
satisfactory condition when the Tenant took possession, and Tenant,
having
examined the Premises, accepts same in "AS-IS" condition. No
promise of the
Landlord to alter, remodel or improve the Premises or the Building
and no
representation respecting the condition of the Premises or the
Building have
been made by the Landlord to the Tenant other than as are contained
in the
Workletter attached hereto.
(b)
Presence of ACM.
Tenant hereby acknowledges that Landlord has notified
Tenant of the presence of asbestos containing materials ("ACM") in
the Building.
Tenant further acknowledges that Landlord has made or will make
available, upon
Tenant's written request, copies of all air sampling reports and
analyses
generated during the Lease Term.
Landlord represents and agrees as follows:
(i) Landlord and Tenant acknowledge that there is ACM existing on
(a)
the
structural steel supports, (b) underside of deck, and (c) fitting
for
some
pipes, all of which are above the ceiling of the Premises.
All information in Landlord's possession or control relating to
any
release of asbestos into the environment from or onto the Premises,
the
Building or the Property including, without limitation, all
sampling data,
environmental studies or reports, environmental site assessments
and
historical use reviews, shall be made available to Tenant for
Tenant's
review in the Building, upon five business days prior written
request by
Tenant.
(ii) Landlord shall require each of its employees, agents,
contractors, subcontractors, tenants, subtenants, or any other
party over
whom
Landlord has supervision or control or right of the same to
comply
with
all applicable environmental laws and regulations.
(iii) Landlord shall give prompt notice to Tenant of: (a) any
preceeding or inquiry by any governmental authority with respect to
the
presence of ACM on the Premises or the Building (or off-site of
the
Premises that might affect the Premises) or related to any loss or
injury
that
might result from any ACM located on or in the Premises, the
Building
or
the Property; (b) all claims made or threatened by any third
party
against Landlord or the Premises, the Building or the Property
relating to
any
loss or injury resulting from any ACM located on or in the
Premises,
the
Building or the Property; and (c) Landlord's discovery of any
occurrence or condition on the Premises, the Building or the
Property (or
off-site of the Premises that might affect the Premises) that could
cause
the
Premises or any part thereof, to be subject to any restriction
on
occupancy or use of the Premises under any environmental law or
regulation.
(iv) If any ACM is released or discovered in or on the Premises,
the
Building or the Property, Landlord, at Landlord's expense, shall in
a
manner that complies
with all applicable laws, rules, regulations and
policies of any governmental body with jurisdiction over the same,
remove,
transport, dispose of, such ACM, encapsulate, manage in place,
monitor or
maintain such substances and perform all remediation, monitoring,
and/or
cleanup necessary or advisable to remediate any damage to property
or the
environment as a result of the presence of such ACM, all in
accordance with
the
O&M Program then in effect and all environmental laws and
regulations,
provided, however, that if any ACM is deposited, released, stored,
disposed
of,
or on the Premises, Building or Property due to the act or neglect
of
Tenant or Tenant's employees, agents, licensees or contractors,
such
remediation, monitoring and/or cleanup shall be at the Tenant's
expense.
Landlord shall use its best efforts to minimize direct and indirect
impact
on
Tenant during all activities related to remediation.
5.
POSSESSION. The Premises shall be ready for occupancy by Tenant
upon the
commencement of the Term. In the event the Premises shall not be
completed and
ready for occupancy on the date fixed for the commencement of the
Term or in the
event Landlord is unable to deliver possession on such date by
reason of the
holding over or retention of possession by any tenant or occupant,
this Lease
shall nevertheless continue in force and effect but Rent (including
Additional
Rent) shall abate in full until the Premises are ready for
occupancy or until
the Landlord is able to deliver possession, as the case may be, and
Landlord
shall have no other liability whatsoever on account thereof;
provided, however,
there shall be no abatement of Rent if the Premises are not ready
for occupancy
because of the failure to complete the installation of special
equipment,
fixtures or materials ordered by Tenant, or because of any delays
resulting
from Tenant's failure to approve or submit plans and specifications
timely in
accordance with the Workletter attached hereto or other written
agreement or
resulting from changes or additions to Tenant's plans and
specifications after
the initial submission hereof. The Premises shall not be deemed
incomplete or
not ready for occupancy if only insubstantial details of
construction,
decoration or mechanical adjustments remain to be done. Except as
otherwise
agreed upon in writing, the determination of Landlord's architect
shall be final
and conclusive on both
4
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Landlord and Tenant as to whether the Premises are completed and
ready for
occupancy. If Tenant shall take possession of any part of the
Premises prior to
the date fixed above as the first day of the Term (which Tenant may
not do
without Landlord's prior written consent), all of the covenants and
conditions
of this Lease shall be binding upon the parties hereto with respect
to such part
of the Premises as if the first day of the Term has been fixed as
the date when
Tenant entered such possession and Tenant shall pay to Landlord
rent for the
period of such occupancy prior to the first day of the Term of this
Lease at the
rate of the annual Base Rent set forth in Paragraph 1 hereof for
the portion of
the Premises so occupied.
6.A.
SERVICES.
(a) Utilities:
Landlord shall furnish the Premises with heating and
air-conditioning reasonably required for the comfortable occupation
of the
premises during normal business hours (8:00 a.m. to 6:00 p.m.
Monday
through Friday, and 8:00 a.m. to 1:00 p.m. Saturday). Electricity
for all
receptacles on the Premises, all lighting on the Premises,
air-conditioning
and
air handling equipment and ventilation shall be provided by
Landlord.
Landlord shall furnish and install a separate electric meter (as
part of
Landlord's Work) servicing the Premises and Tenant shall be billed
directly
by
such utility. Tenant agrees to pay each bill promptly in accordance
with
its
terms. Tenant shall pay to Landlord, pursuant to Section 2 of
this
Lease, as and for "Additional Rent," Tenant's share of the cost
of
operating any supplemental air-conditioning unit based upon
Tenant's
estimated use of chilled water (the "A/C Usage Fee"). The A/C Usage
Fee
shall be due and payable by the Tenant to the Landlord on the first
day of
each
calendar month during the Term at the place and to the party
designated by the Landlord for the payment of Base Rent.
Landlord
specifically reserves the right to adjust the A/C Usage Fee based
on actual
usage and/or utility company rate adjustments.
If Tenant requires electricity for equipment and accessories
not
normal to office usage, Tenant shall procure electricity for such
equipment
and
accessories, at Tenant's expense, from the local public utility
company
servicing the Building. Tenant shall pay for the cost of installing
any
additional required meters.
(b) City water, at
Landlord's expense, for drinking, lavatory and
toilet purposes.
(c) Landlord shall
provide the following services on all days during
the
Term, excepting Sundays and holidays, unless otherwise stated:
(i) Janitor services
five (5) days per week in and about the
Premises,
comparable to the standard janitor service
furnished by other office buildings in the Chicago
metropolitan area.
(ii) Window washing of
all exterior windows in the Premises at
intervals to be determined by Landlord.
(iii) Reasonably
adequate operatorless passenger elevator service
at all times.
(iv) Snow removal
service for walks within a reasonable time
after a snowfall.
(d) Tenant shall have
access to the Premises at all times.
(e) Landlord does not
covenant that any of the services or utilities
to
be provided by Landlord pursuant to this Lease will be free
from
failures or delays caused by repairs, renewals, improvements,
changes of
service, alterations, work stoppages, labor controversies,
accidents,
inability to obtain fuel, electricity, water supplies or other
causes
beyond the reasonable control of Landlord. Tenant agrees that
Landlord
shall not be liable in damages, by abatement of rent or otherwise,
for
failure to furnish or delay in furnishing any service when such
failure or
delay is occasioned, in whole or in part, by repairs, renewals
or
improvements, by any strike, lockout or other labor trouble, by
inability
to
secure electricity, gas, water, or other fuel at the Building
after
reasonable effort so to do, by any accident or casualty whatsoever,
by the
act
or default of Tenant or other parties, or by any cause beyond
the
reasonable control of Landlord; and such failures or delays shall
never be
deemed to constitute an eviction or disturbance of the Tenant's use
and
possession of the Premises or relieve the Tenant from paying rent
or
performing any of its obligations under the Lease and Tenant hereby
waives
and
releases all claims which it may at any time hereafter have
against
Landlord related to any such failure or delay.
(f)
All charges for
services for which Tenant is required to pay
hereunder shall be due and payable at the same time as the
installment of
rent
with which they are billed, or, if billed separately, shall be due
and
payable within ten (10) days after such billing. If Tenant shall
fail
5
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to make payment for any such services, Landlord may, without notice
to
Tenant, discontinue any or all of such services and such
discontinuance
shall not be deemed to constitute an eviction or a disturbance of
the
Tenant's use and possession of the Premises or relieve Tenant
from
paying rent or performing any of its other obligations under this
Lease.
B.
UTILITY DEREGULATION:
(a) Landlord Controls Selection. Commonwealth Edison ("Electric
Service Provider") is the utility company currently providing
electricity service for the Building. Chilled water for the
Building's
and the Premises' air conditioning system ("Chilled Water") may
currently be provided via the Building's own chiller system and
chilling
tower. Notwithstanding the foregoing, if permitted by law,
Landlord
shall have the right, at Landlord's sole option, at any time and
from
time to time during the Term to either contract for electric
service
and/or Chilled Water from a new or different company or
companies
providing electric service and/or Chilled Water (each such company
shall
hereinafter be referred to as an "Alternate Service Provider")
or
continue to either contract for service from the Electric
Service
Provider or maintain the Building's own chiller system and
chilling
tower to provide Chilled Water to the Building.
(b) Tenant Shall Give Landlord Access. Tenant shall cooperate
with
Landlord, the Electric Service Provider, and any Alternate
Service
Provider at all times and, as reasonably necessary, shall allow
Landlord, Electric Service Provider, and any Alternate Service
Provider
reasonable access to the Building's water lines, electric
lines,
feeders, risers, wiring, and any other machinery or service
apparatus
within the Premises.
(c) Landlord Not Responsible for Interruption of Service.
Landlord
shall in no way be liable or responsible for any loss, damage,
or
expense that Tenant may sustain or incur by reason of any
change,
failure, interference, disruption, defect, interruption or delay in
the
supply or character of the electric energy and/or the Chilled
Water
furnished to the Premises or the Building, or if the quantity
or
character of the electric energy or Chilled Water supplied by
the
electric Service Provider or any Alternate Service Provider is no
longer
available or suitable for Tenant's requirements, and no such
change,
failure, defect, unavailability, or unsuitability shall constitute
an
actual or constructive eviction, in whole or in part, or entitle
Tenant
to any abatement or diminution of rent, or relieve Tenant from any
of
its obligations under the Lease.
7.
REPAIRS. Subject to Paragraph 8 hereof, Tenant will at Tenant's
own
expense, keep the Premises in good order, repair and condition
during the Term,
and Tenant shall promptly and adequately repair all damage to the
Premises and
replace or repair all damaged or broken fixtures and appurtenances
with fixtures
or appurtenances of substantially the same grade, make and quality,
under the
supervision and subject to the approval of the Landlord, and within
any
reasonable period of time specified by the Landlord. Tenant's
obligation for
repairs shall not include any obligation to make structural
repairs, including
the walls, roof, floors and internal pipes, conduits, ducts, lines,
wires,
drains and flues and all other facilities for plumbing,
electricity, heating,
and air conditioning, unless such repairs are caused by the
negligence of
Tenant. If the Tenant does not make his required repairs and
replacements,
Landlord may, but need not, do so, and Tenant shall pay Landlord
the cost
thereof forthwith upon being billed for same.
Landlord may, but shall not be required to, enter the Premises at
all
reasonable times to make such repairs, alterations, improvements
and additions,
including, without limitation, conduits, ducts, internal pipes,
lines, wires,
drains and flues and all other facilities for plumbing,
electricity, heating and
air conditioning, as Landlord shall desire or deem necessary to the
Premises or
to the Building or to any equipment located in the Building or as
Landlord may
be required to do by government authority or court order or
decree.
8. ADDITIONS AND
ALTERATIONS. Tenant shall not, without the prior written
consent of Landlord, which consent shall not be unreasonably
withheld or
delayed, make any alterations, improvements or additions to the
Premises.
Landlord need not give any such consent but if Landlord does, it
may impose such
conditions with respect thereto as Landlord deems appropriate,
including,
without limitations, requiring Tenant to furnish Landlord with
security for the
payment of all costs to be incurred in connection with such work
and insurance
against liabilities which may arise out of such work, as determined
by Landlord.
Tenant shall perform all such work in compliance with (i) all laws,
ordinances,
regulations or requirements of any governmental entity or authority
concerning
or regulating the handling or removal of ACM; and (ii) any Asbestos
Operations
and Maintenance Program Manual (O&M Program) then if effect,
and hereby
covenants and agrees to comply with the O&M Program, as amended
from time to
time, to the extent applicable to Tenant or to the Premises. The
work necessary
to make any alterations, improvements or additions to the Premises
shall be done
at Tenant's hiring contractors. Tenant shall promptly pay to
Landlord or to
Tenant's contractors, as the case may be, when due, the cost of all
such work
and of all decorating required by reason thereof, and upon
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completion deliver to Landlord, if payment is made directly to
contractors,
evidence of payment, contractors' affidavits and full and final
waivers of all
liens for labor, services or materials. Tenant shall indemnify,
defend and hold
Landlord and the Land and Building harmless from all costs,
damages, liens,
liabilities, and expenses related to its Additions and Alterations
including
without limitation, liabilities arising from Tenant's failure to
comply with
the O&M Program and any authority concerning ACM handling and
removal,
including attorney's fees.
All
work done by Tenant or its contractors pursuant to this Paragraph 8
or
pursuant to Paragraph 7 hereof shall be done in first-class
workmanlike manner
using only good grades of materials and shall comply with all
insurance
requirements and all applicable laws and ordinances and rules and
regulations of
governmental departments or agencies. All required permits shall be
obtained by
Tenant at Tenant's expense.
If
Tenant desires signal communications, alarm or other utility or
service
connection installed or changed, the same shall be made at the
expense of
Tenant, with prior written consent and under direction of Landlord
and subject
to the terms and conditions of the first paragraph of this
Paragraph 8 hereof or
of Paragraph 8A below.
All
alterations, improvements, additions and wiring or cabling to
the
Premises, whether temporary or permanent in character, made or paid
for by
Landlord or Tenant, shall without compensation to Tenant become
Landlord's
property at the termination of this Lease by lapse of time or
otherwise and
shall, unless Landlord requests their removal (in which case Tenant
shall remove
the same as provided in Paragraph 16), be relinquished to Landlord
in good
condition, ordinary wear excepted.
Tenant shall not affix or install any wall treatments or wall
coverings, of
any type or nature (other than paint), within the Premises, without
Landlord's
prior written consent.
8.A.
RISERS, CABLING AND CONNECTIONS.
(a)
As used herein, the term "Telecommunications Infrastructure" shall
mean
the Building's existing cables, conduits, inner ducts, connecting
hardware,
network point of presence ("Netpop") room, pathways and spaces, and
risers and
riser closets, all comprising the existing telecommunications
infrastructure in
the Building.
(b)
(i) During the Term of this Lease, and provided Tenant is not
in
default hereunder, Tenant shall be permitted use of the
Telecommunications
Infrastructure to extend circuits from the Netpop, through the
Building's
telecommunication riser (if more than one, the one selected by
Landlord),
to
the riser closet of the floors of the Premises ("Floor Riser
Closet") to
serve the Premises. Same shall be done at Tenant's sole cost
and
responsibility, and only through, and pursuant to a separate
agreement
between Tenant and, the telecommunications management company then
engaged
by
Landlord to service the Telecommunications Infrastructure.
(ii)
No promise or representation is made from Landlord to Tenant that,
at
the
time of execution of the Lease, any type of wiring, cabling,
circuits
or
feeds will be in place extending from the said Floor Riser Closet
to the
Premises. Any such extension of wiring, cable, circuits, feed or
the like
from
the Floor Riser Closet to the Premises desired by Tenant for
its
initial "build-out" of the Premises or thereafter shall be at the
sole cost
and
responsibility of Tenant. All services and materials for such
extension
shall be provided only through, and pursuant to a separate
agreement
between Tenant and, the telecommunications management company then
engaged
by
Landlord to service the Telecommunications Infrastructure.
(c)
In the event Tenant desires to not utilize any of the existing
components of the Telecommunications Infrastructure and to instead
furnish and
install its own direct feed through a Building riser into the
Netpop, same shall
be done (i) at Tenant's sole cost and expense, and after first
obtaining any and
all necessary permits therefor, (ii) pursuant to plans and
specifications first
approved by Landlord; and (iii) only through, and pursuant to a
separate
agreement between Tenant and the telecommunications management
company then
engaged by Landlord to service the Telecommunications
Infrastructure.
(d)
Tenant hereby releases Landlord from any and all claims Tenant
may
hereafter have related to any acts or omissions of any
telecommunications
management company servicing the Telecommunications Infrastructure,
and pursuant
to its separate agreements, if any, with Tenant per subparagraphs
(b)(i),
(b)(ii) and (c) above.
9.
COVENANT AGAINST LIENS. Tenant has no authority or power to cause
or
permit any lien or encumbrance of any kind whatsoever whether
created by act of
Tenant, operation of law or
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otherwise, to attach to or be placed upon Landlord's title or
interest in the
Land, Building or Premises, or to Tenant's interests in the
Premises or under
this Lease. Tenant covenants and agrees not to suffer or permit any
lien of
mechanics or materialmen or others to be placed against the Land,
Building or
the Premises with respect to work or services claimed to have been
performed
for or materials claimed to have been furnished to Tenant or the
Premises, and
in case of any such lien attaching, Tenant covenants and agrees
immediately to
cause it to be released and removed of record or bonded in manner
satisfactory
to Landlord.
10.
INSURANCE. Landlord and Tenant each agree to have all fire and
extended coverage and other property damage insurance which it
carries with
respect to the Building or Premises or to the property located in
the Premises
endorsed with a clause which reads substantially as follows: "This
insurance
shall not be invalidated should the insured waive in writing prior
to a loss
any or all rights of recovery against any party for loss occurring
to the
property described herein." Landlord and Tenant each hereby waive
all claims
for recovery from the other for any loss or damage to the Building
or Premises
or to the contracts thereof which is insured under valid and
collectible
insurance policies, or should have been insured pursuant to this
Section 10.
Tenant shall carry the following insurance in companies
satisfactory to
Landlord:
(a) Comprehensive general liability insurance during the entire
term
hereof covering both Tenant and Landlord as insureds with terms and
in
companies satisfactory to Landlord with limits of not less than One
Million
($1,000,000) Dollars combined single limit per occurrence for
Personal
Injury, Death and Property Damage or in such other amounts as
Landlord
shall reasonably require.
(b) Insurance against all risks (including sprinkler leakage,
if
applicable), for the full replacement cost of all additions,
improvements
and
alterations to the Premises (except to the extent the same are
included
within the definition of "Work", but not "Additional Work", in
the
Workletter attached hereto), and of all office furniture, trade
fixtures,
office equipment, merchandise and all other items of Tenant's
property on
the
Premises.
Tenant shall, prior to the commencement of the Term (or within ten
(10)
days after written notice from Landlord to Tenant in the case of
additional
coverage or increased amounts of coverage), furnish to Landlord
certificates
evidencing such coverage, which certificates shall state that such
insurance
coverage may not be changed or cancelled without at least thirty
(30) days'
prior written notice to Landlord and Tenant.
Tenant shall comply with all applicable laws and ordinances
(including,
but not limited to environmental laws), all orders and decrees of
court and all
requirements of other governmental authority, and shall not
directly or
indirectly make any use of the Premises, or use, store or dispose
of within the
Premises or the Building materials, which may thereby be prohibited
or not be
approved by any appropriate governmental agency or be dangerous to
person or
property or which may jeopardize any insurance coverage, or may
increase the
cost of insurance or require additional insurance coverage.
If
Tenant does not take out the Insurance required pursuant to
this
Paragraph 10 or keep the same in full force and effect, Landlord
may, but shall
not be obligated to take out the necessary insurance and pay the
premium
therefore, and Tenant shall repay to Landlord, as Additional Rent,
the amount
so paid promptly upon demand. In addition, Landlord may recover
from Tenant and
Tenant agrees to pay, as Additional Rent, any and all reasonable
expenses
(including attorneys' fees) and damages which Landlord may sustain
by reason of
the failure to Tenant to obtain and maintain such insurance, it
being expressly
declared that the expenses and damages of Landlord shall not be
limited to the
amount of the premiums thereon.
In
no event shall Tenant permit in the Premises flammables such as
gasoline, turpentine, kerosene, naphtha and benzene, or explosives
or any other
article of intrinsically dangerous nature, and in no event shall
Tenant, its
agents, employees or invitees bring any such flammables or other
articles into
the Building. If by reason of the failure of Tenant to comply with
the
provisions of this paragraph, any insurance coverage is jeopardized
or
insurance premiums are increased, Landlord shall have the option
either to
terminate this Lease or to require Tenant to make immediate payment
of the
increased insurance premium.
Tenant shall not bring, keep discharge or release or permit to be
brought,
kept discharged or released, in or from the Premises of the
Building any toxic
or hazardous substance, material or waste or any other contaminant
or pollutant
other than non-reportable quantities of such substances when found
in commonly
used household cleansers, office supplies and general office
equipment
(collectively, "Hazardous Materials"), and any Hazardous Materials
shall be
used, kept, stored and disposed of in strict accordance with all
applicable
federal, state and local laws. Tenant shall comply with all
8
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applicable federal, state and local laws. Tenant shall comply with
all
applicable federal, state and local reporting and disclosure
requirements, with
respect to Hazardous Materials, applicable to its business
operations in the
Premises. Upon the written request of Landlord, Tenant shall
provide periodic
written reports of the type and quantities of any and all types of
substances,
materials, waste and contaminants (whether or not believed by
Tenant to be
Hazardous Materials) used, stored or being disposed of by Tenant in
or from the
Premises. If Landlord in good faith determines that any of such
substances
create a risk to the health and safety of Tenant's employees and
invitees or to
any other tenant or invitee of the Building, Tenant shall, upon
demand by
Landlord, take such remedial action, at the sole cost and expense
of Tenant
(including, without limitation, removal in a safe and lawful manner
of any
Hazardous Ma
