Attached files
Exhibit 10.13
OFFICE
LEASE
LAKE
POINTE CENTER III
8470
Allison Pointe, Second and Third Floors
Indianapolis,
Indiana
Landlord: Sun Life
Assurance Company of Canada
Tenant:
Double-Take Software, Inc.
Date:
October 21, 2009
PART
I
COVER
SHEET
The
terms listed below shall have the following meanings throughout this
Lease:
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DATE
OF LEASE:
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October
21, 2009, the date on which Landlord has signed this Lease
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LANDLORD:
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Sun
Life Assurance Company of Canada, a Canadian corporation
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TENANT:
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Double-Take
Software, Inc.,
a
Delaware corporation
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TENANT'S
ADDRESS:
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8470
Allison Pointe Boulevard
Suite
300
Indianapolis,
IN 46250
c/o
Chief Financial Officer
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MANAGER:
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Colliers
Turley Martin Tucker
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MANAGER'S
ADDRESS:
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Chase
Tower, 111 Monument Circle, Suite 3960
Indianapolis,
IN 46204
c/o
Chief Financial Officer
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PREMISES:
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The
area consisting of approximately 45,429 rentable square feet of the
Building, as shown on Exhibit A attached hereto
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BUILDING:
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The
building in which the Premises are located, known as Lake Pointe Center
III, with a street address of 8470 Allison Pointe Boulevard, Indianapolis,
Indiana 46250 and consisting of a total of approximately 89,200
square feet of space
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PROPERTY:
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The
Building, other improvements and land (the "Lot"), a legal description of
which is shown on Exhibit B attached hereto
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TENANT'S
PERCENTAGE:
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50.93%
(45,429 rentable square feet in the Premises divided by 89,200 rentable
square feet in the Building)
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PERMITTED
USES:
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Office
purposes
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SCHEDULED COMMENCEMENT
DATE:
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July
1, 2009
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TERM:
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Ninety-eight
(98) months
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PREMISES BASE
RENT:
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Tenant
shall pay Base Rent for the Premises in accordance with the following
schedule:
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Months
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Rent
Per
Month
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Annual
Rent
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Annual
Rent
p.r.s.f.
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1-13
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$45,429.00
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$545,148.00
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$12.00
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14-38
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$68,143.50
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$817,722.00
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$18.00
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39-63
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$70,982.81
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$851,793.75
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$18.75
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64-88
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$73,822.13
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$885,865.50
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$19.50
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89-98
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$75,715.00
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$908,580.00
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$20.00
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SECURITY
DEPOSIT:
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$0.00
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PUBLIC LIABILITY INSURANCE
AMOUNT:
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$2,000,000.00
combined limit
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BROKER(S):
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Landlord
Representatives: Michael R. Semler and Andrew D. Martin of
Colliers Turley Martin Tucker
Tenant
Representative: Brian Askins of UGL - Equis
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GUARANTOR(S):
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None
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TENANT
IMPROVEMENT ALLOWANCE:
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$17.00
per square foot; must be utilized by December 31, 2011
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TABLE
OF CONTENTS OF STANDARD LEASE PROVISIONS
ARTICLE
I: PREMISES Page
1.1Premises ....................................................................................................................................1
1.2Common
Areas ..............................................................................................................................1
ARTICLE
II: TERM
2.1Term ........................................................................................................................................1
2.2Early Termination
Right ........................................................................................................................1
ARTICLE
III: RENT
3.1Base Rent ....................................................................................................................................2
3.2Additional Rent for Operating
Expenses, Taxes, and Capital Costs .........................................................................................2
ARTICLE
IV: DELIVERY OF PREMISES AND TENANT IMPROVEMENTS
4.1Condition of Premises
..........................................................................................................................5
4.2Delay in Possession ............................................................................................................................5
4.3Delivery and Acceptance of
Possession ..............................................................................................................5
4.4Early Occupancy ..............................................................................................................................6
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ARTICLE
V: ALTERATIONS AND TENANT'S PERSONAL PROPERTY
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5.1 Alterations
................................................................................................................................6
5.2Tenant's Personal
Property .......................................................................................................................7
ARTICLE
VI: LANDLORD'S COVENANTS
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6.1Services Provided by
Landlord ....................................................................................................................7
6.2Repairs and
Maintenance .......................................................................................................................8
6.3Quiet Enjoyment ...............................................................................................................................8
6.4Insurance ....................................................................................................................................8
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ARTICLE
VII: TENANT'S COVENANTS
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7.1Repairs, Maintenance and
Surrender ...............................................................................................................9
7.2Use ........................................................................................................................................9
7.3Assignment; Sublease ..........................................................................................................................10
7.4Indemnity ..................................................................................................................................11
7.5Tenant's Insurance ............................................................................................................................11
7.6Payment of Taxes
.............................................................................................................................11
7.7Environmental Assurances
.......................................................................................................................11
7.8Americans With Disabilities Act
...................................................................................................................13
ARTICLE
VIII: DEFAULT
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8.1Default .....................................................................................................................................13
8.2Remedies of Landlord and Calculation
of Damages ....................................................................................................14
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ARTICLE
IX: CASUALTY AND EMINENT DOMAIN
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9.1Casualty ....................................................................................................................................15
9.2Eminent Domain .............................................................................................................................16
ARTICLE
X: RIGHTS OF PARTIES HOLDING SENIOR INTERESTS
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10.1Subordination ..............................................................................................................................17
10.2Mortgagee's Consent .........................................................................................................................17
ARTICLE
XI: GENERAL
11.1Representations by
Tenant .....................................................................................................................17
11.2Notices
...................................................................................................................................17
11.3No Waiver or Oral
Modification .................................................................................................................17
11.4Severability ................................................................................................................................17
11.5Estoppel Certificate and Financial
Statements ......................................................................................................18
11.6Waiver of Liability ...........................................................................................................................18
11.7Execution; Prior Agreements and No
Representations ................................................................................................
19
11.8Brokers ....................................................................................................................................19
11.9Successors and Assigns
........................................................................................................................19
11.10Applicable Law and Lease
Interpretation .........................................................................................................19
11.11Costs of Collection, Enforcement and
Disputes .....................................................................................................19
11.12Holdover .................................................................................................................................19
11.13Force Majeure
.............................................................................................................................20
11.14Limitation On Liability
.......................................................................................................................20
11.15Notice of Landlord's
Default ...................................................................................................................20
11.16Lease not to be
Recorded .....................................................................................................................20
11.17Security Deposit ............................................................................................................................20
11.18Guaranty of Lease ...........................................................................................................................20
11.19Option to Renew
...........................................................................................................................20
11.20Right of First Offer ...........................................................................................................................21
PART
II STANDARD LEASE PROVISIONS
ARTICLE
I PREMISES
1.1Premises.
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(a)Demise of
Premises. This Lease (the "Lease") is made and entered into by
and between Landlord and Tenant and shall become effective as of the Date of
Lease. In consideration of the mutual covenants made herein, Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises,
on all of the terms and conditions set forth in this Lease.
(b)Access to
Premises. Landlord shall have reasonable access to the
Premises, at any time during the Term, to inspect Tenant's performance hereunder
and to perform any acts required of or permitted to Landlord herein, including,
without limitation, (i) the right to make any repairs or replacements Landlord
deems necessary, (ii) the right to show the Premises to prospective purchasers
and mortgagees, and (iii) during the last nine (9) months of the Term, the right
to show the Premises to prospective tenants. Landlord shall at all
times have a key to the Premises, and Tenant shall not change any existing
lock(s), nor install any additional lock(s) without Landlord's prior
consent. Except in the case of any emergency, any entry into the
Premises by Landlord shall be on reasonable advance notice.
1.2Common
Areas. Tenant shall have the right to use, in common with
other tenants, the Building's common lobbies, corridors, stairways, and
elevators necessary for access to the Premises, and the common walkways and
driveways necessary for access to the Building, the common toilets, corridors
and elevator lobbies of any multi-tenant floor, and the parking areas for the
Building ("Common Areas"). Tenant's use of the Building parking areas
shall be on an unreserved, non-exclusive basis and solely for Tenant's employees
and visitors. Landlord shall not be liable to Tenant, and this Lease
shall not be affected, if any parking rights of Tenant hereunder are impaired by
any law, ordinance or other governmental regulation imposed after the Date of
Lease. If Landlord grants to any other tenant the exclusive right to
use any particular parking spaces, neither Tenant nor its visitors shall use
such spaces. Use of the Common Areas shall be only upon the terms set
forth at any time by Landlord. Landlord may at any time and in a
manner consistent with other Class A multi-tenant office buildings in the
greater Indianapolis Metropolitan area, make any changes, additions,
improvements, repairs or replacements to the Common Areas that it considers
desirable, provided that Landlord shall use reasonable efforts to minimize
interference with Tenant's normal activities. Such actions of
Landlord shall not constitute constructive eviction or give rise to any rent
abatement or liability of Landlord to Tenant.
ARTICLE
II TERM
2.1Term. The Term
shall begin on July 1, 2009, the Commencement Date, and shall continue for the
length of the Term, unless sooner terminated as provided in this Lease.
2.2Early Termination
Right. On July 30th 2015, Tenant will have the one time right
to terminate this Lease, including any amendments hereto. Tenant will
provide 9 months notice of its intent to exercise its right to terminate, and
provide payment on or before July 30, 2015, equal to all unamortized leasing
costs (consisting of the Tenant Improvement Allowance and the real estate
leasing commissions) at a discount rate of 8% plus three (3) months' Base
Rent.
ARTICLE
III RENT
3.1Base Rent.
(a)Payment of Base
Rent. Tenant shall pay the Base Rent each month in advance on
the first day of each calendar month during the Term. If the
Commencement Date is other than the first day of the month, Tenant shall pay a
proportionate part of such monthly installment on the Commencement
Date. An adjustment in the Base Rent for the last month of the Term
shall be made if the Term does not end on the last day of the
month. All payments shall be made to Manager at Manager's Address or
to such other party or to such other place as Landlord may designate in writing,
without prior demand and without abatement, deduction or offset. All
charges to be paid by Tenant hereunder, other than Base Rent, shall be
considered additional rent for the purposes of this Lease, and the words "rent"
or "Rent" as used in this Lease shall mean both Base Rent and additional rent
unless the context specifically or clearly indicates that only Base Rent is
referenced.
(b)Late Payments. If
any rent or other sum due from Tenant is not received when due, Landlord shall
send a letter notifying Tenant to comply within ten (10) days from rental due
date and Tenant shall pay to Landlord no later than ten (10) calendar days after
the rental due date an additional sum equal to 5% of such overdue
payment. In addition to such late charge, all such delinquent rent or
other sums due to Landlord, including the late charge, shall bear interest
beginning on the date such payment was due at the rate of twelve percent (12%)
per annum. The notice and cure period provided in Paragraph 8.1(a)
does not apply to the foregoing late charges and interest. If
payments of any kind are returned for insufficient funds Tenant shall pay to
Landlord an additional handling charge of $50.00.
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3.2
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Additional Rent for Operating
Expenses, Taxes, and Capital
Costs.
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(a)Additional
Rent. For each Comparison Year, as defined herein, Tenant
shall pay to Landlord as additional rent the sum of (1) the difference between
Comparison Year Operating Expenses and the Base Year Operating Expenses, (2) the
difference between the Comparison Year Taxes and the Base Year Taxes and (3) the
Capital Costs as defined herein, times Tenant's Percentage ("Tenant's Share of
Expenses").
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(b)Definitions. As
used herein, the following terms shall have the following
meanings:
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(i)
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Base
Year. The calendar year in which the Term
commences.
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(ii)
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Comparison
Year. Each calendar year of the Term after the Base
Year.
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(iii)Lease
Year. Each successive 12 month period following the
Commencement Date.
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(iv)
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Operating
Expenses. The total cost of operation of the Property,
including, without limitation, (1) premiums and deductibles for insurance
carried with respect to the Property; (2) all reasonable costs of
supplies, materials, equipment, and utilities used in or related to the
operation, maintenance, and repair of the Property or any part thereof
(including utilities, unless the cost of any utilities is to be paid for
separately by Tenant pursuant to
Paragraph
6.1(b)); (3) all reasonable labor costs, including without limitation,
salaries, wages, payroll and other taxes, unemployment insurance costs,
and employee benefits excluding executives, directors, officers or
partners of Landlord; (4) all maintenance, management fees (not to exceed
five percent (5%) of the gross rents of the Building), janitorial,
inspection, legal, accounting, and service agreement costs related to the
operation, maintenance, and repair of the Property or any part thereof,
including, without limitation, service contracts with independent
contractors. Any of the above services may be performed by
Landlord or its affiliates, provided that fees for the performance of such
services shall be reasonable and competitive with fees charged by
unaffiliated entities for the performance of such services in comparable
buildings in the area. Operating Expenses shall not include
Taxes, leasing commissions; all costs relating to activities for the
solicitation and execution of leases in the Building; the costs of
correcting defects in the construction of the Building or equipment; the
costs of any repair made by Landlord due to partial or total destruction
or condemnation of the Building; repair costs paid by insurance proceeds
or by any tenant or third party; the initial construction cost of the
Building or any depreciation thereof; any debt service or costs related to
sale or financing of the Property; any capital expenses, except those
which normally would be regarded as operating, maintenance, or repair
costs; tenant improvements provided for any tenant; or any special
services rendered to tenants (including Tenant) for which a separate
charge is made; depreciation on equipment; the cost of any removal,
treatment or remediation of asbestos or any other hazardous substance or
gas in the Building caused by Landlord or other tenant; the cost of
overtime or other expenses Landlord incurs in curing its defaults or
performing work expressly provided for in this Lease to be paid by
Landlord. Increases for Controllable Operating Expenses defined
as janitorial service; management fees, lawn and sprinkler maintenance;
parking lot cleaning; interior plant management; window cleaning; signs,
day porter; security costs; fire equipment service and maintenance;
phone/alarm; exterminating; uniforms; and on-site office expenses; shall
be capped annually at no more than five percent (5%) per
annum.
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(v)
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Base Year Operating
Expenses. Operating Expenses incurred during the Base
Year, provided that: (1) in the event that the Building is less than 100%
occupied during the Base Year, then in determining the Base Year Operating
Expenses, all Operating Expenses that may reasonably be determined to vary
in accordance with the occupancy level of the Building, shall be grossed
up to reflect 95% occupancy by multiplying the amount of such expenses by
a fraction, the numerator of which is the total rentable square feet in
the Building and the denominator of which is the average square feet in
the Building that is occupied by tenants during the Base Year; and (2) if
any extraordinary expenses are incurred during the Base Year which
typically are not operations, maintenance, or repair costs of a stabilized
property, as reasonably estimated by Landlord, then such expenses shall be
excluded from the calculation of Operating Expenses during the Base
Year.
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(vi)
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Comparison Year Operating
Expenses. Operating Expenses incurred during the
Comparison Year, provided that: (1) if the Building is less than 100%
occupied during the Comparison Year, then in determining the Comparison
Year Operating Expenses, all Operating Expenses that may reasonably be
determined to vary in accordance with the occupancy level of the Building,
shall be grossed up to reflect 95% occupancy by multiplying the amount of
such expenses by a fraction, the numerator of which is the total rentable
square feet in the Building and the denominator of which is the average
square feet in the Building that is occupied by tenants during the
Comparison Year; and (2) if any extraordinary expenses are incurred during
the Comparison Year which typically are not operations, maintenance, or
repair costs of a stabilized property, as reasonably estimated by
Landlord, then such expenses shall be excluded from the calculation of
Operating Expenses for that Comparison
Year.
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(vii)
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Taxes. Any
form of assessment, rental tax, license tax, business license tax, levy,
charge, tax or similar imposition imposed by any authority having the
power to tax, including any city, county, state or federal government, or
any school, agricultural, lighting, library, drainage, or other
improvement or special assessment district, as against the Property or any
part thereof or any legal or equitable interest of Landlord therein, or
against Landlord by virtue of its interest therein, and any reasonable
costs incurred by Landlord in any proceedings for abatement thereof,
including, without limitation, attorneys' and consultants' fees, and
regardless of whether any abatement is obtained. Landlord's
income taxes; franchise taxes; inheritance taxes; gift taxes; excise
taxes; increases in property taxes attributable to the sale of the
Building; and special assessments levied against Landlord's property other
than real estate, are excluded from
Taxes.
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(viii)
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Base Year
Taxes. Taxes paid during the Base
Year.
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(ix)
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Comparison Year Taxes.
Taxes paid during the Comparison
Year.
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(x)
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Capital
Costs. The annual cost of any capital improvements to
the Property made by Landlord after the Base Year that are designed to
reduce Operating Expenses, or to comply with any governmental law or
regulation imposed after initial completion of the Building, amortized
over the useful life of such item, together with a fixed annual interest
rate equal to the Prime Rate plus 2% on the unamortized
balance. The Prime Rate shall be the prime rate published in
the Wall Street Journal on the date the construction is
completed.
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(c)Estimate of
Tenant's Share of Expenses. Before each Comparison Year, and
from time to time as Landlord deems appropriate, Landlord shall give Tenant
estimates for the coming Comparison Year of Operating
Expenses, Taxes, Capital Costs, and Tenant's Share of
Expenses. Landlord shall make reasonable efforts to provide estimates
fifteen (15) days before the beginning of each Comparison
Year. Tenant shall pay one twelfth (1/12) of the estimated amount of
Tenant's Share of Expenses with each monthly payment of Base Rent during the
Comparison Year. Each Comparison Year, Landlord shall give Tenant a
statement (the "Share of Expenses Statement") showing the Operating
Expenses, Taxes, and Capital Costs for the prior
Comparison Year, a calculation of Tenant's Share of Expenses due for the prior
Comparison Year and a summary of amounts already paid by Tenant for the prior
Comparison Year. Landlord shall make reasonable efforts to provide
the Share of Expenses Statement within one hundred twenty (120) days after the
end of the prior Comparison Year. Any underpayment by Tenant shall be
paid to Landlord within thirty (30) days after delivery of the Share of Expenses
Statement; any overpayment shall be credited against the next installment of
Base Rent due, provided that any overpayment shall be paid to Tenant within
thirty (30) days if the Term has ended. No delay of up to 365 days by
Landlord in providing any Share of Expenses Statement shall be deemed a waiver
of Tenant's obligation to pay Tenant's Share of
Expenses. Notwithstanding anything contained in this paragraph, the
total rent payable by Tenant shall in no event be less than the Base
Rent.
(d)Audit
Rights. Notwithstanding any provisions of this Lease to the
contrary, Tenant shall have the right, after reasonable notice and at reasonable
times to inspect Landlord's accounting records one time per year within sixty
(60) days of Tenant's receipt of its invoice for its pro rata share of
expenses. If Tenant's inspection reveals that Landlord has
overcharged Tenant for Operating Costs or Taxes, Landlord shall reimburse Tenant
the amount of such overcharge within ninety (90) days of verification thereof
plus interest on said overage at the rate of twelve percent (12%) per
annum.
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ARTICLE
IV DELIVERY OF PREMISES AND TENANT IMPROVEMENTS
4.1Condition of
Premises. Landlord shall deliver the Premises to Tenant in its
"as-is" condition provided, however, that Landlord is required to construct
certain tenant improvements during the Term pursuant to and in accordance with
the terms set forth in Exhibit D of this Lease ("Tenant
Improvements"). Such Tenant Improvements shall become and remain the
property of Landlord.
4.2Delay in
Possession. If Landlord is required to construct Tenant
Improvements pursuant to Exhibit D, and Landlord is unable to deliver possession
of the Premises to Tenant on or before the Scheduled Commencement Date for any
reason whatsoever, Landlord shall not be liable to Tenant for any loss or damage
resulting therefrom and this Lease shall continue in full force and effect;
provided, however, that if Landlord shall not deliver the Premises within one
hundred eighty (180) days after the Scheduled Commencement Date and the reasons
for such delay are under the control of Landlord, then Tenant may cancel this
Lease by notice in writing to Landlord within ten (10) days thereafter.
4.3Delivery and Acceptance of
Possession. Tenant shall accept possession and enter in good
faith occupancy of the entire Premises and commence the operation of its
business therein within thirty (30) days after the Commencement
Date. Tenant's taking possession of any part of the Premises shall be
deemed to be an acceptance and an acknowledgment by Tenant that (i) Tenant has
had an opportunity to conduct, and has conducted, such inspections of the
Premises as it deems necessary to evaluate its condition, (ii) except as
otherwise specifically provided herein, Tenant accepts possession of the
Premises in its then existing condition, "as-is", including all patent and
latent defects, (iii) upon completion of Tenant Improvements provided for in
Exhibit D after the Commencement Date, Tenant's taking possession of a part of
the Premises following completion of the Tenant Improvements shall be deemed to
be an acceptance and an acknowledgement by Tenant that the Tenant Improvements
have been completed in accordance with the terms of this Lease, except for
defects, deficiencies, or omissions of which Tenant has given Landlord written
notice within the first ninety (90) days after Tenant takes possession; and (iv)
neither Landlord, nor any of Landlord's agents, has made any oral or written
representations or warranties with respect to such matters other than as set
forth in this Lease.
4.4Early Occupancy. If
Landlord agrees in writing to allow Tenant or its contractors to enter the
Premises prior to the Commencement Date, Tenant (and its contractors) shall do
so upon all of the provisions of this Lease (including Tenant's obligations
regarding indemnity and insurance), except those provisions regarding Tenant's
obligation to pay Base Rent or additional rent, which obligation shall commence
on the Commencement Date.
ARTICLE
V ALTERATIONS AND TENANT'S PERSONAL PROPERTY
5.1Alterations.
(a)Landlord's
Consent. Tenant shall not make any alterations, additions,
installations, substitutes or improvements ("Alterations") in and to the
Premises without first obtaining Landlord's written consent. Landlord
shall not unreasonably withhold or delay its consent; provided, however, that
Landlord shall have no obligation to consent to Alterations of a structural
nature or Alterations that would violate the certificate of occupancy for the
Premises or any applicable law, code or ordinance or the terms of any superior
lease or mortgage affecting the Property. No consent given by
Landlord shall be deemed as a representation or warranty that such Alterations
comply with laws, regulations and rules applicable to the Property
("Laws"). Tenant shall pay Landlord's reasonable costs of reviewing
or inspecting any proposed Alterations and any other reasonable costs that may
be incurred by Landlord as a result of such Alterations provided Landlord gives
Tenant, if commercially reasonable, estimates of expected reasonable costs prior
to incurring the expense and Tenant provides written acceptance of reasonable
costs.
(b)Workmanship. All
Alterations shall be done at reasonable times in a first-class workmanlike
manner, by contractors approved by Landlord, and according to plans and
specifications previously approved by Landlord. All work shall be
done in compliance with all Laws, and with all regulations of the Board of Fire
Underwriters or any similar insurance body or bodies. Tenant shall be
solely responsible for the effect of any Alterations on the Building's structure
and systems, notwithstanding that Landlord has consented to the Alterations, and
shall reimburse Landlord within forty-five (45) days from receipt of invoice any
reasonable costs incurred by Landlord by reason of any faulty work done by
Tenant or its contractors. Upon completion of Alterations, Tenant
shall provide Landlord with a complete set of "as-built" plans.
(c)Mechanics and Other
Liens. Tenant shall keep the Property and Tenant's leasehold
interest therein free of any liens or claims of liens, and shall discharge any
such liens within thirty (30) days of their filing. Before
commencement of any work, Tenant's contractor shall provide payment, performance
and lien indemnity bonds required by Landlord, and Tenant shall provide evidence
of such insurance as Landlord may require, naming Landlord as an additional
insured. Tenant shall indemnify Landlord and hold it harmless from
and against any claim, or liability including reasonable costs and attorneys’
fees arising from any work done by or at the direction of Tenant which does not
arise from Landlord’s negligence or willful misconduct.
(d)Removal of
Alterations. All Alterations affixed to the Premises shall
become part thereof and remain therein at the end of the
Term. However, if Landlord gives Tenant notice, at least thirty (30)
days before the end of the Term, to remove any Alterations, Tenant shall remove
the Alterations, make any repair required by such removal, and restore the
Premises to its original condition. Notwithstanding the aforesaid, tenant shall
remove cabling and wiring it has installed, or had installed at its request,
unless Landlord gives Tenant notice, at least thirty (30) days before the end of
the Term, that such cabling and wiring is to remain.
5.2Tenant's Personal
Property.
(a)In General. Tenant
may provide and install, and shall maintain in good condition, all trade
fixtures, personal property, equipment, furniture and moveable partitions
required in the conduct of its business in the Premises. All of
Tenant's personal property, trade fixtures, equipment, furniture, movable
partitions, and any Alterations not affixed to the Premises shall remain
Tenant's property ("Tenant's Property").
(b)Payment of
Taxes. Tenant shall pay before delinquency all taxes levied
against Tenant's Property and any Alterations installed by or on behalf of
Tenant. If any such taxes are levied against Landlord or its
property, or if the assessed value of the Premises is increased by the inclusion
of a value placed on Tenant's Property, Landlord may pay such taxes, and Tenant
shall within forty-five (45) days from receipt of notice repay to Landlord the
portion of such taxes resulting from such increase.
ARTICLE VI LANDLORD'S
COVENANTS
6.1Services Provided by
Landlord.
(a)Services. Landlord
shall provide services, utilities, facilities and supplies equal in quality to
those customarily provided by landlords in other Class A multi-tenant office
buildings in the greater Indianapolis Metropolitan area. Landlord
shall provide reasonable additional Building operation services upon reasonable
advance request of Tenant at reasonable rates from time to time established by
Landlord. Landlord shall furnish space heating and cooling as normal
seasonal changes may require to provide reasonably comfortable space temperature
and ventilation for occupants of the Premises under normal business operation,
daily from 7:00 a.m. to 7:00 p.m. (Saturdays from 9:00 a.m. to 1:00 p.m.),
Sundays and legal state holidays excepted. If Tenant shall require
space heating or cooling outside the hours and days above specified, Landlord
shall provide such service at Tenant's expense in accordance with any reasonable
advance notice requirements established from time to time by Landlord.
(b)Separately Metered
Utilities. If the Premises are separately metered as of the
Commencement Date, Tenant shall pay all charges for all separately metered and
separately billed gas, electricity, telephone and other utility services used,
rendered or supplied upon or in connection with the Premises on a monthly basis
and shall indemnify Landlord against liability or damage on such
account.
The
costs of any utilities which are not separately metered shall be included as an
Operating Expense. Tenant shall not use utility services in excess of amounts
reasonably determined by Landlord to be within the normal range of demand for
the Permitted Uses without making arrangements to reimburse Landlord for such
excess use. If Landlord has reason to believe that Tenant is using a
disproportionate share of any utility which is not separately metered, Landlord
may, at Landlord's election, and at Landlord's expense, conduct an engineering
audit to estimate Tenant's actual use. If such audit determines that
Tenant is using more than its proportionate share of any utility. Tenant shall
pay for any use above its proportionate share as additional rent.
(c)Graphics and
Signs. Landlord shall provide, at Landlord's expense,
identification of Tenant's name and suite numerals at the main entrance door to
the Premises. All signs, notices, graphics and decorations of every
kind or character which are visible in or from the Common Areas or the exterior
of the Premises shall be subject to Landlord's prior written approval, which
Landlord shall have the right to withhold in its absolute and sole discretion;
however, Tenant shall be entitled to install signage at its sole cost and
expense on the center raceway of the North exterior elevation of the
Building. Tenant shall submit the plans and specifications for such
signage to Landlord for Landlord's review and approval, including necessary
utilities and exact location to be approved by Landlord, in Landlord's sole and
absolute discretion. Tenant shall at all times comply with all laws,
governmental regulations, zoning ordinances, and covenants, conditions and
restrictions of record, and shall obtain all required permits in conjunction
with any such signage. Any changes to the plans and specifications
for such signage, the method, the necessary utilities, the size, location,
shape, or general appearance thereof shall be subject to Landlord's approval in
its absolute discretion. Tenant shall maintain all such signage in
good repair. Tenant shall remove all such signage within thirty (30)
days after the termination of the Lease.
(d)Right to Cease Providing
Services. In case of Force Majeure or in connection with any
repairs, alterations or additions to the Property or the Premises, or any other
acts required of or permitted to Landlord herein, Landlord may reduce or suspend
service of the Building's utilities, facilities or supplies, provided that
Landlord shall use reasonable diligence to restore such services, facilities or
supplies as soon as possible. No such reduction or suspension shall
constitute an actual or constructive eviction or disturbance of Tenant's use or
possession of the Premises unless such services, facilities or supplies prevent
Tenant’s reasonable use and enjoyment of the Premises for more than ten (10)
days due to Landlord’s negligence or willful misconduct. In such
event, all Base Rent, Additional Rent and other expenses and payments due under
this Lease shall be abated until Tenant’s reasonable use and enjoyment of the
Premises is fully restored.
6.2Repairs and
Maintenance. Landlord shall repair and maintain (i) the Common
Areas, (ii) the structural portions of the Building, (iii) the exterior walls of
the Building (including exterior windows and glazing), (iv) the roof and roof
membrane, (v) the basic plumbing, electrical, mechanical and heating,
ventilating and air-conditioning systems serving the Premises, and (vi) parking
lots in the manner and to the extent customarily provided by landlords in
similar Class A multi-tenant office buildings in the greater Indianapolis
Metropolitan area. Tenant shall pay for such repairs as set forth in
Paragraph 3.2. If any maintenance, repair or replacement is required
because of any act, omission or neglect of duty by Tenant or its agents,
employees, invitees or contractors, the cost thereof shall be paid by Tenant to
Landlord as additional rent within forty-five (45) days from receipt of
invoice.
6.3Quiet
Enjoyment. Upon Tenant's paying the rent and performing its
other obligations, Landlord shall permit Tenant to peacefully and quietly hold
and enjoy the Premises, subject to the provisions of this Lease.
6.4 Insurance. Landlord
shall insure the Property, including the Building and Tenant Improvements and
approved Alterations, if any, against damage by fire and standard extended
coverage perils, and shall carry public liability insurance, all in such
reasonable amounts as would be carried by a prudent owner of a Class
A multi-tenant building in the greater Indianapolis Metropolitan
area. Landlord may carry any other forms of insurance as it or its
mortgagee may deem advisable. Insurance obtained by Landlord shall
not be in lieu of any insurance required to be maintained by
Tenant. Landlord shall not carry any insurance on Tenant's Property,
and shall not be obligated to repair or replace any of Tenant's
Property unless due to Landlord's negligence or willful
misconduct. All insurance maintained by Landlord shall contain a
waiver of subrogation in favor of Tenant.
ARTICLE
VII TENANT'S COVENANTS
7.1Repairs, Maintenance and
Surrender.
(a)Repairs and
Maintenance. Tenant shall keep the Premises in good order and
condition, and shall promptly repair any damage to the Premises excluding glass
in exterior walls of the Premises. Tenant shall also repair any damage to the
rest of the Property, including glass in interior walls, if such damage is
attributable to Tenant's negligence or misuse caused by Tenant or its agents,
employees, or invitees, licensees or independent contractors. All
repairs shall be made in a workmanlike manner and any replacements or
substitutions shall be of a quality, utility, value and condition similar to or
better than the replaced or substituted item.
(b)Surrender. At the
end of the Term, Tenant shall peaceably surrender the Premises in good order,
repair and condition, except for reasonable wear and tear, and Tenant shall
remove Tenant's Property and (if required by Landlord and subject to section
5.1(d)) any Alterations, repairing any damage caused by such removal and
restoring the Premises and leaving them clean and neat. Any property
not so removed shall be deemed abandoned and may be retained by Landlord or may
be removed and disposed of by Landlord in such manner as Landlord shall
determine. Tenant shall be responsible for costs and expenses
incurred by Landlord in removing any Alterations and disposing any such
abandoned property, making any incidental repairs and replacements to the
Premises, and restoring the Premises to its original condition, excluding normal
wear and tear.
7.2Use.
(a)General
Use. Tenant shall use the Premises only for the Permitted
Uses, and shall not use or permit the Premises to be used in violation of any
law or ordinance or of any certificate of occupancy issued for the Building or
the Premises, or of the Rules and Regulations. Tenant shall not
cause, maintain or permit any nuisance in, on or about the Property, or commit
or allow any hazardous or excess waste in or upon the
Property.
(b)Obstructions
and Exterior Displays. Tenant shall not obstruct any of the
Common Areas or any portion of the Property outside the Premises, and shall not,
except as otherwise previously approved by Landlord, place or permit any signs,
decorations, curtains, blinds, shades, awnings, aerials or flagpoles, or the
like, that may be visible from outside the Premises. If Landlord
designates a standard window covering consistent with those used in other Class
A multi-tenant office buildings located in the greater Indianapolis Metropolitan
area for use throughout the Building, at Landlord’s expense, Tenant shall use
this standard window covering to cover all windows in the Premises.
(c)Floor Load. Tenant
shall not place a load upon the floor of the Premises exceeding the load per
square foot such floor was designed to carry, as determined by applicable
building code without the prior written approval of Landlord.
(d)Compliance with Insurance
Policies. Tenant shall not knowingly keep or use any article
in the Premises, or permit any activity therein, which is prohibited by any
insurance policy covering the Building, or would result in an increase in the
premiums thereunder.
(e)Rules and
Regulations. Tenant shall observe and comply with the rules
and regulations attached as Exhibit E ( the "Rules and Regulations"), and all
modifications thereto as made by Landlord and put into effect from time to
time. Landlord shall not be responsible to Tenant for the violation
or non-performance by any other tenant or occupant of the Building of the Rules
and Regulations.
7.3Assignment;
Sublease. Tenant shall not assign its rights under this Lease
nor sublet the whole or any part of the Premises without Landlord's prior
written consent. In the event that Landlord grants such consent,
Tenant shall remain primarily liable to Landlord for the payment of all rent and
for the full performance of the obligations under this Lease. Tenant
shall be responsible for payment of all reasonable costs incurred by Landlord in
connection with any such request for Landlord's consent to a proposed assignment
or subletting, as provided in Paragraph 11.5. Landlord shall not incur any costs
related to Tenant’s request in this Section 7.3 without providing Tenant with a
written estimate for Tenant’s review and written approval. Any
assignment or subletting which does not conform with this Paragraph 7.3 shall be
void and a default hereunder.
In addition to, but not in limitation
of, the foregoing: in the event of a request by Tenant for Landlord's consent to
a proposed assignment of the Lease or a proposed subletting Landlord, at
Landlord's sole option, may cancel the Lease with respect to the area in
question for the proposed term of such sublease. Landlord shall
exercise any such option by written notice given to Tenant within thirty (30)
days after Landlord's receipt of such request from Tenant, and in each case such
termination or cancellation shall take effect as of the date set forth in
Tenant's proposed sublease agreement with sublessee. If Landlord
exercises any such option to terminate or cancel the Lease, Tenant shall
surrender possession of the portion of the Premises to which the termination or
cancellation applies on or before the date set forth in Landlord's notice, in
accordance with the provisions of this Lease relating to the surrender of the
Premises at expiration of the Term. If the Lease is cancelled as to a
portion of the Premises only, Base Rent after the date of such cancellation
shall be abated on a pro-rata basis, as determined by Landlord, and Tenant's
Percentage shall be proportionally reduced. Landlord's failure to exercise such
option to terminate or cancel the Lease shall not be construed as Landlord's
consent to the proposed assignment or subletting. If Landlord allows Tenant to
sublease, Tenant shall remain liable for its obligations under this
Lease. Notwithstanding the foregoing, if Landlord provides notice of
intent to cancel or terminate the portion under consideration for the sublease,
Tenant may within five (5) days from receipt of notice rescind its request to
sublease and Landlord will have no right to terminate or cancel the space under
consideration in the assignment or subletting request.
Notwithstanding
the foregoing, Landlord's consent shall not be required in the event Tenant
assigns this Lease or subleases the Premises to (i) an affiliate under common
control with Tenant, or (ii) an entity resulting from a corporate merger,
non-bankruptcy reorganization or recapitalization, provided that the net worth
of such affiliate or entity is equal to or greater than Tenant's net worth at
the time this Lease is signed, as verified by Landlord. Additionally,
Tenant shall remain liable for its obligations under this
Lease. Tenant shall provide Landlord at least thirty (30) days'
written notice of such assignment or sublease.
7.4 Indemnity. Except
for any claims related to Landlord’s gross negligence or willful misconduct,
Tenant, at its expense, shall defend, indemnify and hold harmless Landlord and
its agents, employees, and contractors from and against any claim, action,
liability or damage including reasonable costs and attorneys’ fees of any kind
arising directly from (i) Tenant's use and occupancy of the Premises or the
Property or any activity done or permitted by Tenant in, on, or about the
Premises or the Property, (ii) any breach or default by Tenant of its
obligations under this Lease, or (iii) any negligent, tortious, or illegal act
or omission of Tenant, its agents or employees. Landlord shall not be
liable to Tenant or any other person or entity for any damages arising from any
act or omission of any other tenant of the Building. The obligations
in this Paragraph 7.4 shall survive the expiration or termination of this
Lease.
7.5Tenant's
Insurance. Tenant shall maintain in responsible companies
qualified to do business, in good standing in the state in which the Premises
are located and otherwise acceptable to Landlord and at its sole expense the
following insurance: (i) comprehensive general liability insurance covering the
Premises insuring Landlord as well as Tenant with limits which shall, at the
commencement of the Term, be at least equal to the Public Liability Insurance
Amount and from time to time during the Term shall be for such higher limits, if
any, as are customarily carried in the area in which the Premises are located
with respect to similar properties, (ii) workers' compensation insurance with
statutory limits covering all of Tenant's employees working in the Premises,
(iii) property insurance insuring Tenant's Property for the full replacement
value of such items and Tenant’s deductible for this Section 7.5 (iii) shall not
be greater than Two Hundred and Fifty Thousand Dollars ($250,000.00); and (iv)
business interruption insurance. Tenant shall deposit promptly with
Landlord certificates for such insurance, and all renewals thereof, bearing the
endorsement that the policies will not be canceled until after thirty (30) days'
written notice to Landlord. Landlord agrees that it is not an act of
default if Tenant changes its deductible and fails to notify Landlord within
sixty (60) days of the change. All policies shall be taken out with
insurers with a rating of A-IX by Best's or otherwise acceptable to
Landlord.
7.6Payment of
Taxes. If at any time during the Term, any political
subdivision of the state in which the Property is located, or any other
governmental authority, levies or assesses against Landlord a tax or excise on
rents or other tax (excluding income tax), however described, including but not
limited to assessments, charges or fees required to be paid, by way of
substitution for or as a supplement to real estate taxes, or any other tax on
rent or profits in substitution for or as a supplement to a tax levied against
the Property, Building or Landlord's personal property, then Tenant will pay to
Landlord as additional rent its proportionate share based on Tenant's Percentage
of said tax or excise consistent with the provisions in Section 3.2.
7.7Environmental
Assurances.
(a)Covenants.
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(i)
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Tenant
shall not cause any Hazardous Materials to be used, generated, stored or
disposed of on, under or about, or transported to or from, the Premises
unless the same is specifically approved in advance by Landlord in writing
other than small quantities of retail, household, and office chemicals
customarily sold over-the-counter to the public and which are related to
Tenant's Permitted Uses.
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(ii)
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Tenant
shall comply with all obligations imposed by Environmental Laws, and all
other restrictions and regulations upon the use, generation, storage or
disposal of Hazardous Materials at, to or from the
Premises.
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(iii)
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Tenant
shall deliver promptly to Landlord true and complete copies of all notices
received by Tenant from any governmental authority with respect to the
use, generation, storage or disposal by Tenant of Hazardous Materials at,
to or from the Premises and shall immediately notify Landlord both by
telephone and in writing of any unauthorized discharge of Hazardous
Materials or of any condition that poses an imminent hazard to the
Property, the public or the
environment.
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(iv)
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Tenant
shall complete fully, truthfully and promptly any questionnaires sent by
Landlord with respect to Tenant's use of the Premises and its use,
generation, storage and disposal of Hazardous Materials at, to or from the
Premises.
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(v)
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Tenant
shall permit entry onto the Premises by Landlord or Landlord's
representatives at any reasonable time to verify and monitor Tenant's
compliance with its covenants set forth in this Paragraph 7.7 and to
perform other environmental inspections of the
Premises.
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(vi)
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If
Landlord conducts any environmental inspections because it has reason to
believe that Tenant's activities have or are likely to result in a
violation of Environmental Laws or a release of Hazardous Materials on the
Property, then Tenant shall pay to Landlord, as additional rent, the
reasonable costs incurred by Landlord for such
inspections.
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(vii)
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Tenant
shall cease immediately upon notice from Landlord any activity which
violates or creates a risk of violation of any Environmental
Laws.
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(viii)
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After
notice to and approval by Landlord, Tenant shall promptly remove,
clean-up, dispose of or otherwise remediate, in accordance with
Environmental Laws and good commercial practice, any Hazardous Materials
on, under or about the Property resulting from Tenant's activities on the
Property.
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(b)Indemnification. Except
for any claims related to Landlord’s negligence and willful misconduct Tenant
shall indemnify, defend and hold Landlord harmless from and against any claims,
damages, liabilities or losses (including, without limitation, any decrease in
the value of the Property, loss or restriction of any area of the Property, and
adverse impact of the marketability of the Property or Premises), to include
reasonable costs and attorneys’ fees directly arising out of Tenant's use,
generation, storage or disposal of Hazardous Materials at, to or from the
Premises.
(c)Definitions. Hazardous
Materials shall include but not be limited to substances defined as "hazardous
substances", "toxic substances", or "hazardous wastes" in the federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended; the federal Hazardous Materials Transportation Act, as amended; and the
federal Resource Conservation and Recovery Act, as amended; those substances
defined as "hazardous substances", "materials", or "wastes" under the law of the
state in which the Premises are located; and as such substances are defined in
any regulations adopted and publications promulgated pursuant to said laws
("Environmental Laws"); materials containing asbestos or urea formaldehyde;
gasoline and other petroleum products; flammable explosives; radon and other
natural gases; and radioactive materials.
(d)Survival. The
obligations of Tenant in this Paragraph 7.7 shall survive the expiration or
termination of this Lease.
7.8Americans With Disabilities
Act. To the extent applicable, Tenant shall comply with the
Americans with Disabilities Act of 1990 ("ADA") and the regulations promulgated
thereunder. Tenant hereby expressly assumes all responsibility for
compliance with the ADA relating to the Premises and the activities conducted by
Tenant within the Premises. Any Alterations to the Premises made by
Tenant for the purpose of complying with the ADA or which otherwise require
compliance with the ADA shall be done in accordance with this Lease; provided,
that Landlord's consent to such Alterations shall not constitute either
Landlord's assumption, in whole or in part, of Tenant's responsibility for
compliance with the ADA, or representation or confirmation by Landlord that such
Alterations comply with the provisions of the ADA.
ARTICLE
VIII DEFAULT
8.1Default. The
occurrence of any one or more of the following events shall constitute a default
hereunder by Tenant:
(a)The failure by Tenant to make any
payment of Base Rent or additional rent or any other undisputed payment required
hereunder, as and when due, such failure shall continue for a period of five (5)
days after receipt of written notice as provided in Section 3.1(b) thereof from
Landlord to Tenant; provided, that Landlord shall not be required to provide
such notice more than twice during a twenty-four (24) month period with respect
to non-payment of Rent, the third such non-payment constituting a default
without requirement of notice;
(b)The failure by Tenant to observe or
perform any of the express or implied covenants or provisions of this Lease to
be observed or performed by Tenant, other than as specified in clause (a) above,
where such failure shall continue for a period of more than thirty (30) days
after receipt of written notice thereof from Landlord to Tenant; provided,
however, that if the nature of Tenant's default is such that more than thirty
(30) days are reasonably required for its cure, then Tenant shall not be deemed
to be in default if Tenant commences such cure within said thirty (30) day
period, diligently prosecutes such cure to completion, and completes
such cure no later than sixty (60) days from the date of such notice from
Landlord;
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(c)Tenant or any such Guarantor (if any)
becoming insolvent, filing or having filed against it a petition under any
chapter of the United States Bankruptcy Code, 11 U.S.C. Paragraph 101 et seq.
(or any similar petition under any insolvency law of any jurisdiction) and such
petition is not dismissed within sixty (60) days thereafter, proposing any
dissolution, liquidation, composition, financial reorganization or
recapitalization with creditors, making an assignment or trust mortgage for the
benefit of creditors, or if a receiver, trustee, custodian or similar agent is
appointed or takes possession with respect to any property or business of Tenant
or Guarantor (if any); or
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(d)If the leasehold estate under this
Lease or any substantial part of the property or assets of Tenant or of
Guarantor of this leasehold is taken by execution, or by other process of law,
or is attached or subjected to any involuntary encumbrance if such attachment or
other seizure remains undismissed or undischarged for a period of thirty
business (30) days after the levy thereof.
8.2Remedies of Landlord and Calculation
of Damages.
(a)Remedies. In the
event of any default by Tenant Landlord shall provide Tenant
with at least sixty (60) days prior written notice of Landlord’s intent to
exercise any or all of its options under this Section 8.2, and during this sixty
(60) days, parties shall work together to resolve the default
issue. After the sixty (60) day period, Landlord may in addition to
any other remedies available to Landlord at law or in equity exercise any or all
of the following remedies:
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(i)
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Terminate
the Lease and upon notice to Tenant of termination of the Lease all rights
of Tenant hereunder shall thereupon come to an end as fully and completely
as if the date such notice is given were the date originally fixed for the
expiration of the Term, and Tenant shall then quit and surrender the
Premises to Landlord and Landlord shall have the right,
with judicial process, to re-enter the Premises. No
such expiration or termination of the Lease shall relieve Tenant of its
liability and obligations under the
Lease.
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(ii)
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Accelerate
the payment of Base Rent and all additional rent under this Lease for the
remainder of the Term and terminate the Lease in the same manner, and with
the same force and effect, as provided in clause (i)
above.
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(iii)
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Enter
the Premises and cure any default by Tenant and in so doing, Landlord may
make any payment of money other than sums disputed by Tenant or perform
any other act. All sums so paid by Landlord, and all incidental
costs and expenses, including reasonable attorneys' fees, shall be
considered additional rent under this Lease and shall be payable to
Landlord forty-five (45) days after receipt of a valid invoice
together with interest from the date of demand to the date of payment at
the rate of twelve percent (12%) per annum.
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(b) Calculation of Damages. If
this Lease is terminated as provided in Paragraph 8.2(a)(i) above, Tenant, until
the end of the Term, or what would have been such Term in the absence of any
such event, shall be liable to Landlord, as damages for Tenant's default, for
the amount of the Base Rent and all additional rent and other charges which
would be payable under this lease by Tenant if this Lease were still in effect,
less the net proceeds of any reletting of the Premises actually collected by
Landlord after deducting all Landlord's reasonable expenses in connection with
such reletting, including, without limitation, all repossession costs, brokerage
and management commissions, operating expenses, legal expenses, reasonable
attorneys' fees, reasonable alteration costs and expenses of preparation of the
Premises for such reletting. Tenant shall pay such damages to Landlord monthly
on the days on which the Base Rent would have been payable as if this Lease were
still in effect, and Landlord shall be entitled to recover from Tenant such
damages monthly as the same shall arise.
Whether
or not the Lease is terminated, Landlord shall have an obligation to mitigate
its damages and shall use commercially reasonable efforts to relet the Premises
and collect any monies due based upon the reletting of the premises.
(c)No
Limitations. Nothing contained in this Lease shall limit or
prejudice the right of Landlord to prove for and obtain in proceedings for
bankruptcy or insolvency by reason of the termination of this Lease, an amount
equal to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, the damages are to be provided,
whether or not the amount be greater, equal to, or less than the amount of the
loss or damages referred to above.
(d)Cumulative
Remedies. Landlord's remedies under this Lease are cumulative
and not exclusive of any other remedies to which Landlord may be entitled in
case of Tenant's default or threatened default under this Lease, including,
without limitation, the remedies of injunction and specific
performance.
ARTICLE
IX CASUALTY AND EMINENT DOMAIN
9.1Casualty.
(a)Casualty in
General. If, during the Term, the Premises, the Building or
the Lot, are wholly or partially damaged or destroyed by fire or other casualty,
and the casualty renders the Premises totally or partially inaccessible or
unusable by Tenant in the ordinary conduct of Tenant's business, then Landlord
shall, within thirty (30) days of the date of the damage, give Tenant a notice
("Damage Notice") stating whether, according to Landlord's good faith estimate,
the damage can be repaired within one hundred eighty (180) days from the date of
damage ("Repair Period"), without the payment of overtime or other
premiums. The parties' rights and obligations shall then be governed
according to whether the casualty is an Insured Casualty or an Uninsured
Casualty as set forth in the following paragraphs.
(b)Insured
Casualty. If the casualty results from a risk, the loss to
Landlord from which is fully covered by insurance maintained by Landlord or for
Landlord's benefit (except for any deductible amount), it shall be an "Insured
Casualty" and governed by this Paragraph 9.1(b). In such event, if
the Damage Notice states that the repairs can be completed within the Repair
Period without the payment of overtime or other premiums, then Landlord shall
promptly proceed to make the repairs, this Lease shall remain in full force and
effect, and Base Rent and additional rent shall be reduced, during the period
between the casualty and completion of the repairs, in proportion to the portion
of the Premises that is inaccessible or unusable during that period and which
is, in fact, not utilized by Tenant. Base Rent shall not be reduced
by reason of any portion of the Premises being unusable or inaccessible for a
period of five (5) business days or less. If the Damage Notice states
that the repairs cannot, in Landlord's estimate, be completed within the Repair
Period without the payment of overtime or other premiums, then either party may,
terminate this Lease by written notice given to the other within thirty (30)
days after the giving of the Damage Notice. If either party elects to
terminate this Lease, the Lease shall terminate as of the date of the occurrence
of such damage or destruction and Tenant shall vacate the Premises five (5)
business days from the date of the written notice terminating the
Lease. If neither party so terminates, then this Lease shall remain
in effect, Landlord shall make repairs, and Base Rent shall be proportionately
reduced as set forth above during the period when the Premises is inaccessible
or unusable and is not used by Tenant.
(c)Casualty within final six months of
Term. Notwithstanding anything to the contrary contained in
this Paragraph 9.1, if the Premises or the Building is wholly or partially
damaged or destroyed within the final six (6) months of the Term of this Lease,
Landlord shall not be required to repair such casualty and either Landlord or
Tenant may elect to terminate this Lease and no further payments from the date
of termination are owed to Landlord by Tenant in the event of
termination.
(d)Tenant Improvements and
Alterations. If Landlord elects to repair after a casualty in
accordance with this Paragraph 9.1, Landlord shall cause Tenant Improvements and
Alterations which Landlord has approved, to be repaired and restored at
Landlord's sole expense. Landlord shall have no responsibility for
any personal property placed or kept in or on the Premises or the Building by
Tenant or Tenant's agents, employees, invitees or contractors and Landlord shall
not be required to repair any damage to, or make any repairs to or replacements
of, such personal property.
(e) Cumulative
Remedy. Tenant’s remedies under this Lease are cumulative and not
exclusive of any other remedies at law or in equity, to which Tenant may be
entitled to claim due to Landlord’s breach, including, without limitation, the
remedies of injunction and specific performance.
(f) Waiver of
Subrogation. Landlord and Tenant shall use reasonable efforts
to cause each insurance policy obtained by each of them to provide that the
insurer waives all right of recovery by way of subrogation against either
Landlord or Tenant in connection with any loss or damage covered by such policy.
9.2Eminent Domain.
(a)Eminent Domain in
General. If the whole of the Premises, or so much of the
Premises as to render the balance unusable by Tenant, shall be taken or
appropriated under the power of eminent domain or condemnation (a "Taking"),
either Landlord or Tenant may terminate this Lease and the termination date
shall be the date of the Order of Taking, or the date possession is taken by the
Taking authority, whichever is earlier. If any part of the Property
is the subject of a Taking and such Taking materially affects the normal
operation of the Building or Common Areas or a Taking affects the Tenant’s
ability to use the Premises, a party may elect to terminate this
Lease. A sale by Landlord under threat of a Taking shall constitute a
Taking for the purpose of this Paragraph 9.2. No award for any
partial or entire Taking shall be apportioned. Landlord shall receive
(subject to the rights of Landlord's mortgagees) and Tenant hereby assigns to
Landlord any award which may be made and any other proceeds in connection with
such Taking, together with all rights of Tenant to such award or proceeds,
including, without limitation, any award or compensation for the value of all or
any part of the leasehold estate; provided that nothing contained in this
Paragraph 9.2(a) shall be deemed to give Landlord any interest in or to require
Tenant to assign to Landlord any separate award made to Tenant for (i) the
taking of Tenant's Property, or (ii) interruption of or damage to Tenant's
business, or (iii) Tenant's moving and relocation costs.
(b)Reduction in
Base Rent. In the event of a Taking which does not result in a
termination of the Lease, Base Rent shall be proportionately reduced based on
the portion of the Premises rendered unusable, and Landlord shall restore the
Premises or the Building to the extent of available proceeds or awards from such
Taking. Landlord shall not be required to repair or restore any
damage to Tenant's Property or any Alterations.
(c)Sole
Remedies. This Paragraph 9.2 sets forth Tenant's and
Landlord's sole remedies for Taking. Upon termination of this Lease
pursuant to this Paragraph 9.2, Tenant and Landlord hereby agree to release each
other from any and all obligations and liabilities with respect to this Lease
except such obligations and liabilities which arise or accrue prior to such
termination.
ARTICLE
X RIGHTS OF PARTIES HOLDING SENIOR INTERESTS
10.1Subordination. This
Lease shall be subject and subordinate to any and all mortgages, deeds of trust
and other instruments in the nature of a mortgage, ground lease or other matters
or record ("Senior Interests") which now or at any time hereafter encumber the
Property and Tenant shall, within twenty (20) days of Landlord's request,
execute and deliver to Landlord such recordable written instruments as shall be
necessary to show the subordination of this Lease to such Senior
Interests. Notwithstanding the foregoing, if any holder of a Senior
Interest succeeds to the interest of Landlord under this Lease, then, at the
option of such holder, this Lease shall continue in full force and effect and
Tenant shall attorn to such holder and to recognize such holder as its
landlord.
10.2Mortgagee's
Consent. No assignment of the Lease and no agreement to make
or accept any surrender, termination or cancellation of this Lease and no
agreement to modify so as to reduce the Rent, change the Term, or otherwise
materially change the rights of Landlord under this Lease, or to relieve Tenant
of any obligations or liability under this Lease, shall be valid unless
consented to by Landlord's mortgagees of record, if any.
ARTICLE
XI GENERAL
11.1Representations by
Tenant. Tenant represents and warrants that any financial
statements provided by it to Landlord were true, correct and complete when
provided, and that no material adverse change has occurred since that date that
would render them inaccurate or misleading. Tenant represents and
warrants that those persons executing this Lease on Tenant's behalf are duly
authorized to execute and deliver this Lease on its behalf, and that this Lease
is binding upon Tenant in accordance with its terms, and simultaneously with the
execution of this Lease, Tenant shall deliver evidence of such authority to
Landlord in form satisfactory to Landlord.
11.2Notices. Any legal
notice required or permitted hereunder shall be in writing. Notices
shall be addressed to Landlord c/o Manager at Manager's Address and to Tenant at
Tenant's Address. Any communication so addressed shall be deemed duly
given on the date signed for by the receiving party when delivered by hand, a
nationally recognized overnight delivery service or U.S. Mail (registered or
certified mail return receipt requested). Either party may change its
address by giving notice to the other.
11.3No Waiver or Oral
Modification. No provision of this Lease shall be deemed
waived by Landlord or Tenant except by a signed written waiver. No
consent to any act or waiver of any breach or default, express or implied, by
Landlord or Tenant, shall be construed as a consent to any other act or waiver
of any other breach or default.
11.4Severability. If
any provision of this Lease, or the application thereof in any circumstances,
shall to any extent be invalid or unenforceable, the remainder of this Lease
shall not be affected thereby, and each provision hereof shall be valid and
enforceable to the fullest extent permitted by law.
11.5Estoppel Certificate and Financial
Statements.
(a)Estoppel
Certificate. Within ten (10) business days after written
request by Landlord, Tenant shall execute, acknowledge and deliver to Landlord a
written statement certifying (i) that this Lease is unmodified and in full force
and effect, or is in full force and effect as modified and stating the
modifications; (ii) the amount of Base Rent currently payable by Tenant to
Landlord; (iii) Tenant's Percentage, the Base Year and Tenant's Share of
Expenses currently payable by Tenant to Landlord; (iv) the date to which Base
Rent and Tenant's Share of Expenses have been paid in advance; (v) the amount of
any security deposited with Landlord; (vi) that Landlord is not in default
hereunder or, if Landlord is claimed to be in default, stating the nature of any
claimed default, and (vii) such other matters as may be reasonably requested by
Landlord. Any such statement may be relied upon by a purchaser,
assignee or lender. Tenant's failure to execute and deliver such
statement within the time required shall be a default under this Lease and shall
also be conclusive upon Tenant that this Lease is in full force and effect and
has not been modified except as represented by Landlord; and there are no
uncured defaults in Landlord's performance and Tenant has no right of offset,
counterclaim or deduction against rent.
(b)Financial
Statements. Tenant is a publically traded company and any
financial information available to the public is located at
www.doubletake.com. As to this Section 11.5(b), in the event Tenant
becomes a private entity, Tenant shall, at Landlord’s cost and, within thirty
(30) days following a request by Landlord, deliver to Landlord, or to any other
party designated by Landlord, a true and accurate copy of Tenant's most recent
financial statements, which shall be considered confidential information and
Landlord shall not disclose such information to a third
party. Landlord is limited to one (1) request under this
provision within a twelve (12) month period. All requests made by
Tenant regarding renewals or expansions must be accompanied by Tenant's most
recent financial statements. All requests made by Tenant regarding
subleases, or assignments must be accompanied by Tenant's prospective
subtenant's and prospective assignee's most recent financial statements.
11.6Waiver of
Liability. Landlord and Tenant each hereby waive all rights of
recovery against the other and against the officers, employees, agents, and
representatives of the other, on account of loss by or damage to the waiving
party or its property or the property of others under its control, to the extent
that such loss or damage is insured against under any insurance policy that
either may have in force at the time of the loss or damage or that would or
could be covered by any insurance policy that is required under this
Lease. Each party shall notify its insurers that the foregoing waiver
is contained in this Lease.
11.7Execution, Prior Agreements and No
Representations. This Lease shall not be binding and
enforceable until executed by authorized representatives of Landlord and
Tenant. This Lease contains all of the agreements of the parties with
respect to the subject matter hereof and supersedes all prior dealings, whether
written or oral, between them with respect to such subject
matter. Each party acknowledges that the other has made no
representations or warranties of any kind except as may be specifically set
forth in this Lease.
11.8Brokers. Each party
represents and warrants that it has not dealt with any real estate broker or
agent in connection with this Lease or its negotiation except its respective
Broker. Each party shall indemnify the other and hold it harmless
from any cost, expense, or liability (including costs of suit and reasonable
attorneys' fees) for any compensation, commission or fees claimed by any other
real estate broker or agent in connection with this Lease or its negotiation by
reason of any act or statement of the indemnifying party.
11.9Successors and
Assigns. This Lease shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that only the original Landlord named herein shall be liable
for obligations accruing before the beginning of the Term, and thereafter the
original Landlord named herein and each successive owner of the Premises shall
be liable only for obligations accruing during the period of their respective
ownership.
11.10Applicable Law and Lease
Interpretation. This Lease shall be construed, governed and
enforced according to the laws of the state in which the Property is
located. In construing this Lease, paragraph headings are for
convenience only and shall be disregarded. Any recitals herein or
exhibits attached hereto are hereby incorporated into this Lease by this
reference. Time is of the essence of this Lease and every provision
contained herein. The parties acknowledge that this Lease was freely
negotiated by both parties, each of whom was represented by counsel;
accordingly, this Lease shall be construed according to the fair meaning of its
terms, and not against either party.
11.11 Costs of Collection, Enforcement and
Disputes. Tenant shall pay all costs of collection, including
reasonable attorneys' fees, incurred by Landlord in connection with any default
by Tenant, if the court determines that Landlord prevails in its
claim. If either Landlord or Tenant institutes any action to enforce
the provisions of this Lease or to seek a declaration of rights hereunder, the
prevailing party shall be entitled to recover all costs including its reasonable
attorneys' fees and court costs as part of any award. Landlord and
Tenant hereby waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other, on or in respect to
any matter whatsoever arising out of or in any way connected with this Lease,
the relationship of Landlord and Tenant hereunder, Tenant's use or occupancy of
the Premises, and/or claim of injury or damage.
11.12Holdover. If Tenant
holds over in occupancy of the Premises after the expiration of the Term, Tenant
shall, at the election of Landlord, become a tenant at sufferance only on a
month-to-month basis subject to the terms and conditions herein specified, so
far as applicable. Tenant shall pay rent during the holdover period, at a base
rental rate equal to one hundred fifty percent (150%) of the Base Rent in effect
at the end of the Term, plus the amount of Tenant's Share of Expenses then in
effect. In the event that Landlord and Tenant are in negotiations to extend the
Term of this Lease, the Tenant's continued occupancy after the expiration of the
Term shall be deemed to be with Landlord's consent for a period of up to ninety
(90) days and the Lease shall continue on a month to month basis upon the then
existing terms and conditions until the later of ninety (90) days or
the date upon which Landlord and Tenant end their negotiations.
11.13Force
Majeure. If Landlord or Tenant is prevented from or delayed in
performing any act required of it hereunder, and such prevention or delay is
caused by strikes, labor disputes, inability to obtain labor, materials, or
equipment, inclement weather, acts of God, governmental restrictions,
regulations, or controls, judicial orders, enemy or hostile government actions,
civil commotion, fire or other casualty, or other causes beyond such party's
reasonable control ("Force Majeure"), the performance of such act shall be
excused for a period equal to the period of prevention or delay. A
party's financial inability to perform its obligations shall in no event
constitute Force Majeure. Nothing in this Paragraph 11.13 shall
excuse or delay Tenant's obligation to pay any rent or other charges due under
this Lease.
11.14 Limitation On
Liability. Landlord, and its partners, directors, officers,
shareholders, trustees or beneficiaries, shall not be liable to Tenant for any
damage to or loss of personal property in, or to any personal injury occurring
in, the Premises, unless such damage, loss or injury is the result of the gross
negligence or willful misconduct of Landlord or its agents as determined by a
judicial proceeding. The obligations of either party under this Lease
do not constitute personal obligations of the individual partners, directors,
officers, shareholders, trustees or beneficiaries of Landlord, and Tenant shall
not seek recourse against the partners, directors, officers, shareholders,
trustees or beneficiaries of Landlord, or any of their personal assets for
satisfaction of any liability with respect to this Lease. Except for
claims related to Landlord’s negligence or willful misconduct, in the event of
any default by Landlord under this Lease, Tenant's sole and exclusive remedy
shall be against Landlord's interest in the Property.
11.15Notice of Landlord's
Default. The failure by Landlord to observe or perform any of
the express or implied covenants or provisions of this Lease to be observed or
performed by Landlord shall not constitute a default by Landlord unless such
failure shall continue for a period of more than thirty (30) days after written
notice thereof from Tenant to Landlord specifying Landlord's default; provided,
however, that if the nature of Landlord's default is such that more than thirty
(30) days are reasonably required for its cure, then Landlord shall not be
deemed to be in default if Landlord commences such cure within said thirty (30)
day period and diligently prosecutes such cure to completion and completes such
cure no later than sixty (60) days from the date of such
notice. Tenant shall, simultaneously with delivery to Landlord,
provide written notice specifying the Landlord default to the holder of any
first mortgage or deed of trust covering the Premises whose name and address
have been furnished to Tenant in writing. Except as otherwise
expressly stated to the contrary herein, in the event of a default by Landlord,
Tenant shall have the right to pursue any of its remedies provided for at law or
in equity, including the right to terminate this Lease, an injunction and
specific performance.
11.16Lease not to be
Recorded. Tenant agrees that it will not record this
Lease. Both parties shall, upon the request of either, execute and
deliver a notice or short form of this Lease in such form, if any, as may be
permitted by applicable statute. If this Lease is terminated before
the Term expires the parties shall execute, deliver and record an instrument
acknowledging such fact and the actual date of termination of this Lease, signed
by both parties.
11.17Security
Deposit. Intentionally Omitted.
11.18Guaranty of
Lease. Intentionally Omitted.
11.19Option to
Renew. Tenant shall have the option to extend the Term for two
consecutive renewal periods of five (5) years each by delivering written notice
to Landlord six (6) months prior to the expiration of the original
Term. The renewal term shall commence on the date immediately
succeeding the last day of the original Term. If Tenant exercises the
option to renew, the renewal Term shall be on the same terms and conditions as
those contained in this Lease, except that Base Rent shall be the lesser of (a)
ninety-five percent (95%) of fair market rent for comparable Class A buildings
in the Northeast submarket, or (b) the then escalated fair market rate,
including consideration of Landlord provided improvements, concessions,
inducements, and brokerage commissions.
11.20 Right of First
Offer. During the Term of this Lease, Tenant shall have the
right of first offer on the entire Building pursuant to the terms of this
Lease. If Tenant exercises its option, the rent will be the same per
square foot rate then applicable under this Lease. Tenant shall
exercise its option, if at all, by giving written notice ("Tenant's Notice") to
Landlord One Hundred Eighty (180) days after providing Landlord with written
notice exercising its option. The additional space shall be added to
the Premises in its then condition, "as is", effective on the date that it is
vacated by the prior tenant. Landlord shall prepare and deliver to
Tenant an amendment to this Lease which adds the Option Area to the Premises on
the same terms and conditions and to be co-terminus with the current expiration
as provided in this Lease, except that Tenant's Percentage for purposes of the
adjustment set forth in Section 3 shall be increased in proportion to the
useable area of the Option Area as same relates to the area of the
Building. Tenant shall promptly execute and deliver the amendment to
the Landlord.
[Remainder
of page is intentionally left blank.]
IN WITNESS WHEREOF, Landlord and Tenant
have executed this Lease, which includes the cover sheet, the foregoing Standard
Provisions, Additional Provisions, if any, and Exhibits attached to this Lease,
with the intent that each of the parties shall be legally bound thereby and that
this Lease shall become effective as of the Date of Lease.
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TENANT:
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DOUBLE-TAKE
SOFTWARE, INC.
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By:
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Name:
/s/ S. Craig
Huke
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Title:
Chief Financial
Officer
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Date:
October 21,
2009
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LANDLORD:
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SUN
LIFE ASSURANCE COMPANY OF CANADA
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By:
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Name:
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/s/ Thomas V.
Pedulla
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Title:
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Senior Managing
Director
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Date: October 29, 2009
By:
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Name:
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/s/ John G.
Mulvihill
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Title:
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Managing
Director
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Date: October 29, 2009
PART
III EXHIBITS
EXHIBIT
A
DESCRIPTION
OF THE PREMISES
EXHIBIT
B
DESCRIPTION
OF THE LOT
Allison
Pointe
Parcel
P-5
Part of
the Northwest Quarter of Section 21, Township 17 North, Range 4 East in Marion
Count, Indiana, more particularly described as follows:
Commencing
at the southeast corner of said Northwest Quarter Section; thence along the
South line thereof, South 89 degrees 06 minutes 37 seconds West (assumed
bearing) 119.71 feet then North 00 degrees 00 minutes 52 seconds West 12.57 feet
to a point on the centerline of East 82nd
Street as located by D.O.T. plan for Project ST-05-004A, which point is also the
Southwest corner of the Grant of Right of Way for Allison Ponte Boulevard as
recorded September 9, 1987 as Instrument 87-105141 in the Office of the Recorder
of Marion Count, Indiana (the next five courses are along the Westerly and
Southerly lines of said Grant of Right of Way); (1) thence continuing North 00
degrees 00 minutes 52 seconds West 536.80 feet to a curve having a radius of
385.00 feet, the radius point of which bears North 89 degrees 59 minutes 08
seconds East; (2) then Northerly and Northeasterly along said curve 212.52 feet
to a point which bears North 58 degrees 23 minutes 15 seconds West from said
radius point; (3) thence North 31 degrees 36 minutes 45 seconds East 762.23 feet
to curve having a radius of 305.00 feet, the radius point of which bears North
58 degrees 23 minutes 15 seconds West; (4) thence Northerly, Northwesterly and
Westerly along said curve 650.79 feet to a point which bears North 00 degrees 38
minutes 30 seconds West from said radius point; (5) thence South 89 degrees 21
minutes 30 seconds West 204.00 feet to the Point of Beginning, which point is
also the Northwest corner of a 4.244 are tract described in a Warranty Deed
recorded June 4, 1990 as Instrument 90-54079 in said Recorder’s Office; thence
along the West line of said 4.244 acre tract, South 00 degrees 38 minutes 30
seconds East 537.17 feet to a point on the South line of the North Half of said
Northwest Quarter Section; thence along said South line, South 89 degrees 11
minutes 38 seconds West 345.00 feet; thence North 00 degrees 38 minutes 30
seconds West 473.16 feet to a point on the Southerly right of way line of said
Allison Ponte Boulevard, which points is on a curve having a radius of 100.00
feet, the radius point of which bears North 00 degrees 38 minutes 30 seconds
West (the next three courses are along the Southerly line of said Allison Pointe
Boulevard); (1) thence Easterly and Northeasterly along said curve, 82.98 feet
to a point which bears South 48 degrees 11 minutes 15 seconds East from said
radius point, and which point is on a reverse curve having a radius of 100.00
feet, the radius point of which bears South 48 degrees 11 minutes 15 seconds
East; (2) thence Northeasterly and Easterly along said curve, 82.98 feet to a
point which bears North 00 degrees 38 minutes 30 seconds West from said radius
point; (3) thence North 89 degrees 21 minutes 30 seconds East 197.44 feet to the
Point of Beginning, containing 4.148 acres, more or less.
EXHIBIT
C
ADDITIONAL
PROVISIONS
The
following provisions ("Additional Provisions") identified below and attached
and/or set forth below are included as part of the Lease between Landlord and
Tenant. Capitalized terms used in any of the Additional Provisions
and not otherwise defined shall have the meanings given such terms in Part I and
Part II of this Lease. Unless express reference is made to a
provision in Part I and Part II of this Lease for the purpose of modifying such
provision, in the event of any conflict between the Additional Provisions and
the provisions of Part I and Part II of this Lease, the provisions contained in
Parts I and II shall control.
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Tenant
Improvement
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Allowance: Original
Premises
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Tenant
will receive $17 / SF to make the improvements to the original premises.
Any
portion of present or future Landlord contributed funds, including expansions,
shall be utilized by Tenant at its sole discretion for soft or hard costs of
improvements throughout any portion of its leased space. Tenant
agrees to utilize the Improvement Allowance by December 31,
2011. After such date, any unused Tenant Improvement Allowance will
be forfeited by Tenant. Also, Tenant cannot use the Tenant
Improvement Allowance towards any Furniture, Fixtures or Equipment.
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Landlord
will competitively bid all tenant improvement finish to three (3)
competent and experienced bidders and select/contract with its own general
contractor with Tenant approval. To the extent not caused by
Tenant changes after the bids, Landlord shall be solely responsible for
any costs in excess of lowest bid. Tenant shall be solely
responsible for any costs resulting from Tenant changes after the bid and
for the excess, if any, of the lowest bid over Landlord’s allowance as
above stated. Landlord will provide Tenant copies of all bids
and the identity of all bidders. All fees associated with Landlord’s
construction and general contracting shall be normal market
fees.
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Any
equipment considered to be capital (i.e. replacement of HVAC units, etc.) in
nature will be at Landlord’s cost and will not be deducted from the Tenant
Improvement Allowance, unless such items are specifically required for Tenant’s
use.
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Architectural
Services: All architectural services and drawings,
including but not limited to space plans and construction drawings shall
be paid by the Tenant Improvement Allowance(s). Tenant will
continue to utilize the services of Schott Design for all architectural
services.
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Smoking
Area: Landlord shall construct a designated smoking area at the
south end of the parking lot on or before July 1, 2011 and all individuals
shall be mandated to smoke in this designated smoking area, and Landlord
shall send notices and provide signs to the designated smoking
area.
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Expansion
Rights:Regardless of tenant exercising a Right of First Offer; Tenant
shall have a pro-rated tenant improvement allowance utilizing $28 /
Rentable Square Foot as the baseline for any and all expansions. No
additional lease term shall be required by tenant if a Right of First
Offer is exercised or if tenant expands so long as said right is exercised
prior to July 31, 2013. Thereafter, expansion will be at the
then current market
conditions.
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EXHIBIT
D
TENANT
IMPROVEMENTS
The
following provisions are included as part of the Lease between Landlord and
Tenant. Capitalized terms not otherwise defined shall have the
meanings given such terms in Part I and Part II of this
Lease.
I – Tenant Improvement
Allowance.
Landlord
shall be responsible for the build-out of the Original Premises according to a
mutually agreed upon space plan (the “Tenant Improvement Work”). The
Tenant Improvement Work shall be completed in accordance with the set of
construction documents, including a mechanical, electrical and plumbing plan,
submitted by Tenant and approved by Landlord before commencement of
construction, and shall be paid for as set forth below, and shall be constructed
in accordance with the following procedures:
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(a)
Tenant shall by January 1, 2010, engage Schott Design to prepare plans and
specifications of the Tenant Improvement Work (the “Construction Plans”)
for Landlord’s review and approval. The Construction Plans
shall be submitted to Landlord on or before June 1, 2010, and Landlord
shall review and either approve or notify Tenant of proposed changes
thereto within 10 business days after receiving the Construction
Plans. Tenant shall make any changes to the Construction Plans
reasonably requested by Landlord or necessary to make the Construction
Plans conform to the space plan.
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(b)
Promptly after the plans and specifications have been finalized, Landlord
shall solicit bids from three (3) general contractors and submit a summary
of such bids with a recommended general contractor, and other information
regarding the bids as reasonably requested by Tenant to Tenant and
Tenant’s Representative, David R. Byard of UGL-Equis, for review and
written approval to be delivered within 7 business days of receipt or
deemed accepted. Once such approval is received Landlord shall enter into
a written contract with the approved general contractor on an AIA approved
form for the construction of the Tenant Improvement Work and with other
professionals for appropriate services in connection
therewith.
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(c)
At all times during Landlord’s construction of the Tenant Improvement
Work, Landlord’s general contractor shall have a full time supervisor
on-site to oversee the construction. All such construction
shall be overseen by Landlord through its construction manager, at no cost
to Tenant other than the construction administration fee of five percent
(5%) of the Tenant Improvement Work costs. Landlord shall at
all reasonable times permit Tenant and its Tenant’s
Representative to inspect the Premises and Tenant’s improvement work
during construction and Tenant will coordinate such inspection with
Landlord's Construction Manager. Landlord will provide Tenant’s
Representative with written weekly updates inclusive of digital photos of
the progress of the work.
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(d)
Tenant and its agents and contractors shall have the right to enter the
Premises prior to the Commencement Date for such construction purposes at
reasonable times and with reasonable notice to
Landlord.
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(e)
Landlord agrees to provide Tenant with an allowance in the amount of
($17.00 X the rentable square footage of the Premises (the “Tenant
Improvement Allowance”), to be applied against the costs and expenses
incurred in connection with the design and construction of the Tenant
Improvement Work in the Premises (including the actual construction costs
and architectural, construction oversight and engineering fees, cabling
and moving costs incurred in connection therewith). The Tenant
Improvement Allowance shall not be applied to the costs of any furniture,
computers, equipment, personal property, inventory or for any other costs
other than as provided above. If the costs of the Tenant
Improvement Work exceed the Tenant Improvement Allowance, Tenant shall be
responsible for the full and prompt payment of such costs within 10
business days of an appropriate invoice and documentation for such
overage. Any undisbursed Tenant Improvement Allowance will be
forfeited by Tenant on December 31, 2011. Any equipment
considered to be capital in nature will be at Landlord’s cost and will not
be deducted from the Tenant Improvement
Allowance.
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EXHIBIT
E
RULES AND
REGULATIONS
1.The driveways, parking areas, plazas,
sidewalks, entrances, passages, courts, vestibules, stairwells, corridors or
halls shall not be obstructed or encumbered by any tenant or used for any
purpose other than ingress and egress to and from the premises.
2.No awnings, canopies, or other
projections shall be attached to the outside walls of the
building. No drapes, curtains, blinds, shades, or screens shall be
attached to or hung in, or used in connection with, any window or door or the
premises without the prior written consent of Landlord which consent shall not
be unreasonably withheld or delayed.
3.Except as otherwise provided in the Lease, Tenants are prohibited
from displaying any sign, picture, advertisement or notice on the inside or
outside of the building, or the premises, except the usual name signs on the
doors leading to the premises, which shall conform to the requirements of the
management of the building, and excepting also the name strips on the directory
board of the building. The directory board of the building will be
maintained by Landlord. In the event of the violation of the
foregoing by any tenant, Landlord may remove same without any liability, and may
charge the expense incurred by such removal to the tenant.
4.The sash doors, windows, and doors that
reflect or admit light and air into the halls, passageways or other public
places in the building shall not be covered or obstructed by any tenant, nor
shall any bottles, parcels or other articles be placed on the windowsills or
perimeter fan coil consoles.
5.No showcases or other articles shall be
put in front of or affixed to any part of the exterior of the building nor
placed in the halls, corridors, or vestibules without the prior written consent
of Landlord.
6.The water and wash closets and other
plumbing fixtures shall not be used for any purposes other than those for which
they were constructed, and no sweepings, rubbish, rags or other substances shall
be thrown therein. All damages resulting from any misuse of the
fixtures shall be borne by the tenant who, or whose servants, employees, agents,
visitors or licensees, shall have caused the same.
7.No tenant shall mark, paint, drill
into, or in any way deface any part of the premises or the building of which
they form a part. No boring, cutting or stringing of wires shall be
permitted, except with the prior written consent of Landlord, and as Landlord
may direct. No tenant shall lay any type of floor covering without
first obtaining Landlord's written permission.
8.No motorized vehicles or
animals of any kind shall be brought into or kept in or about the premises, and
no cooking shall be done or permitted by any tenant on the
premises. No tenant shall cause or permit any unusual or
objectionable odors to be produced upon or permeate from the
premises.
9.No tenant shall make or permit to be
made, any unseemly or disturbing noises or disturb or interfere with occupants
of this building, or premises, or neighboring buildings.
10.No tenant, and no servants, employees,
agents, visitors or licensees of any tenant, shall at any time bring or keep
upon the premises any inflammable, combustible or explosive fluid, chemical or
substance.
11.Tenants are prohibited from installing
additional locks upon any of the doors or having duplicate keys made for any of
the doors leading to the premises. (All necessary keys will be
furnished to the tenants by Landlord). Each tenant must, upon the
termination of tenancy, return all keys to Landlord.
12.Landlord shall have the right to
prohibit any advertising by any tenant which, in Landlord's opinion, tends to
impair the reputation of the building or their desirability for offices, and
upon written notice from Landlord, the tenants shall refrain from or discontinue
such advertising.
13.The premises shall not be used for
lodging or sleeping.
14.The requirements of tenants will be
attended to only upon application at the office of the
building. Building employees shall not perform any work or do
anything outside of their regular duties, unless under special instructions from
the office of the building.
15.Canvassing, soliciting and peddling in
the building are prohibited and each tenant shall cooperate to prevent the
same.
16.Landlord and its agents may retain a
pass key to the premises and shall have the right to enter the premises at any
and all times for the purpose of servicing and examining the same.
17.Landlord reserves the right to make
such other and further Rules and Regulations as in its judgment may from time to
time be needful and proper, and upon delivery of the same to the tenants they
shall become binding upon the parties hereto.