Sample Commercial Real Estate Property Lease - Office Building Part 2

Posted by: Bldngexprt .

1.01.      Waste.  Tenant shall not commit or allow any waste or damage to be committed in any portion of the Leased Premises. 1.02.      Assignment or Sublease. (a)            If Tenant intends to assign this Lease or sublet the Leased Premises or any part thereof, Tenant shall give Landlord written notice of such intent. Tenant’s notice shall: (i) be accompanied by an exact copy of the proposed agreements between Tenant and the proposed assignee or subtenant; (ii) contain a statement of the name and legal form of the proposed assignee, subtenant or other transferee; (iii) contain a description of the business to be conducted at and from the Leased Premises by the proposed assignee or sublessee following the proposed assignment or subletting; and (iv) contain a balance sheet as of a date not more than six (6) months preceding the delivery of the balance sheet to Landlord and operating statements for the last two fiscal years of the proposed assignee or sublessee.  Tenant shall also promptly provide to Landlord (i) any additional information or documents reasonably requested by Landlord within ten (10) days after receiving Tenant’s notice, and (ii) an opportunity to meet and interview the proposed assignee or subtenant, if requested. (b)           Landlord shall then have a period of twenty (20) days following such interview and receipt of such additional information (or thirty (30) days from the date of Tenant’s original notice if Landlord does not request additional information or an interview) within which to notify Tenant in writing that Landlord elects either (i) to terminate this Lease as to the space so affected as of the date so specified by Tenant, in which event Tenant will be relieved of all further obligations hereunder as to such space, or (ii) to grant, either conditionally or unconditionally, or to deny its consent to the proposed assignment or subletting, subject, however, to prior written approval of the proposed assignee or subtenant by Landlord.  The consent of the Landlord shall not be unreasonably withheld.  Tenant hereby acknowledges and agrees that, without limiting in any way other circumstances or factors under which Landlord could reasonably withhold consent to a proposed assignment or subletting, it shall be reasonable for Landlord to withhold consent where: (i) the use of the Leased Premises by such proposed assignee or subtenant would not be a Permitted Use; (ii) the financial resources or operating history of the proposed assignee or subtenant is not sufficient, in the opinion of Landlord, to assure that the proposed assignee or subtenant will be able to perform in a timely manner all of its obligations under this Lease or the proposed sublease, as applicable; (iii) the proposed assignee’s or subtenant’s use would involve the storage, use, treatment or disposal of any Hazardous Material (except for Permitted Hazardous Materials transported, stored and used in accordance with the provisions of this Lease); (iv) the employees and invitees of the proposed assignee or sublessee would, in the opinion of Landlord, not be of appearance and demeanor consistent with the standards of appearance and demeanor then prevalent among other users of the Building; (v) the proposed assignee or sublessee does not intend itself to occupy the entire portion of the Leased Premises assigned or sublet; (vi) the proposed use by the proposed assignee or subtenant could cause the violation of any covenant or agreement of Landlord to any third party or would permit any other tenant to terminate its lease; (vii) the proposed subtenant or assignee then leases or occupies any other space in the Building; (viii) Landlord or Landlord’s agent has shown space in the Project to the proposed assignee or sublessee or any of its Affiliates or Parent Entity or any of their representatives or agents, or responded to any inquiries from any of them or their representatives or agents concerning availability of space in the Project, at any time within the preceding six (6) months; (ix) the proposed subletting or assignment would, when taken together with all previous sublettings then still in effect, materially increase the density of employees in the Leased Premises or the portion thereof subject to a sublease or materially increase the scope or usage of utilities and services required to be provided by Landlord under this Lease; (x) result in more than three (3) occupancies in the Leased Premises, including Tenant and all subtenants and licensees; (xi) Landlord otherwise determines that the proposed assignment or subletting would have the effect of decreasing the value of the Project or increasing the expenses associated with operating, maintaining and repairing the Project; (xii) in the case of a sublease, if the rent payable by the subtenant is less than the then prevailing rate being charged by Landlord for the lease of comparable space in the Building; or (xiii) the assignment or subletting would be in contravention of any provision in this Section 5.06. (c)            If Landlord fails to notify Tenant in writing of such election within said period, Landlord shall be deemed to have waived its option to terminate this Lease as to the space so affected as of the date so specified by Tenant, but written approval by Landlord of the proposed assignee or subtenant shall be required.  Failure by Landlord to approve a proposed subtenant or assignee shall not cause a termination of this Lease, and the sole remedy of Tenant shall be an action for injunctive or declaratory relief. (d)           Any Assignment or Sublease Profit realized by Tenant under any such assignment or sublease shall be divided and paid as follows: ten percent (10%) to Tenant and ninety percent (90%) to Landlord.  In respect of a sublease (but not an assignment), “Assignment or Sublease Profit” shall mean any rent or other consideration realized by Tenant under such sublease in excess of the Gross Rent payable hereunder for the same period (prorated on a per square foot of Net Rentable Area basis, in the case of a subletting of less than all of the Leased Premises), after prorating on a monthly basis over the term of sublease, and deducting the prorata amount from each of the payments to be made in respect of any month under the sublease: (i) reasonable leasing commissions and legal fees paid to third parties in connection with the subletting; and (ii) costs incurred by Tenant in providing a necessary demising wall for the subtenant.  In respect of an assignment (but not a sublease), “Assignment or Sublease Profit” shall mean any consideration realized by Tenant in connection with such assignment, after deducting: (i) reasonable leasing commissions and legal fees paid to third parties in connection with the assignment; and (ii) costs incurred by Tenant in performing Alterations or leasehold improvements for the assignee.  The foregoing notwithstanding, if more than one (1) payment of Assignment or Sublease Profit is to be made in respect of an assignment, then the amount which would otherwise be deducted from a single payment shall instead be prorated over each payment of Assignment or Sublease Profit to be made in respect of the assignment and the prorata amount shall be deducted from each such sublease or assignment payment.  If, in connection with any assignment or subletting, the consideration received by Tenant pertains both to the assignment or subletting and other assets or rights which Tenant is conveying or transferring to the assignee or subtenant, then in no event shall the portion of such consideration allocated to the assignment or sublease be less than that required to cause the assignee or subtenant to have paid an amount equal to the then Fair Market Rent for the portion of the Leased Premises subject to the assignment or subletting.  Within ten (10) days following the end of any calendar month during which Tenant receives any payment of Assignment or Sublease Profit, Tenant shall: (i) deliver to Landlord a copy of any instrument by which such payment was made, together with an accounting of any Assignment or Sublease Profit arising in connection with such payment of Assignment or Sublease Profit; and, (ii) pay to Landlord Landlord’s share (as calculated in accordance with this Section 5.06(d)). (e)            Without limiting the other events which may constitute an assignment of this Lease, the following shall be deemed an assignment of this Lease: (i) the pledging, mortgaging or encumbering of Tenant’s interest in this Lease, or the Leased Premises or any part thereof; (ii) any occupancy of all of the Leased Premises by any person, firm, partnership, or corporation, or any groups of persons, firms, partnerships, or corporations, or any combination thereof, other than Tenant; (iii) an assignment or transfer by operation of law; (iv) a transfer, in one or more transactions occurring within a period of twelve (12) months, whether by sale, assignment, bequest, inheritance, operation of law or other disposition or by subscription of twenty-five percent (25%) or more of the corporate shares of, or partnership or other interests in, Tenant; (v) the dissolution of Tenant, unless such dissolution is immediately followed by the reconstitution of a successor entity which continues the business of Tenant with substantially the same ownership of shares or constituent partnership interests as existed prior to such dissolution; or, (vi) the sale or other transfer or disposition of substantially all of the assets of Tenant.  Without limiting the other events which may constitute a subletting, any occupancy of less than all of the Leased Premises by any person, firm, partnership, or corporation, or any groups of persons, firms, partnerships, or corporations, or any combination thereof, other than Tenant and its employees and business guests, shall be deemed a subletting of the Leased Premises. (f)            In any subletting undertaken by Tenant, Tenant shall diligently seek to obtain not less than Fair Market Rent for the space so sublet.  In any assignment of this Lease in whole or in part, Tenant shall seek to obtain from the assignee consideration reflecting a value of not less than Fair Market Rent for the space subject to such assignment.  Tenant shall provide to Landlord, upon Landlord’s demand, true and correct executed copies of the documents constituting such sublease or assignment and any amendments thereof during the Term. (g)           The provisions of Sections 5.06(b), 5.06(d), 5.06(e), and 5.06(f) notwithstanding, Tenant may sublet the Leased Premises or any part thereof to an Affiliate or Parent Entity of Tenant without the necessity of obtaining the consent of Landlord.  In the event that Tenant sublets the Leased Premises or any part thereof to an Affiliate or Parent Entity of Tenant in accordance with this Section 5.06(g), Tenant shall remain primarily liable with respect to its obligations under this Lease and, as to sublettings to Affiliates, Tenant shall remain the agent of the subtenant for the purposes of this Lease, with such agent being fully authorized to act for and bind the subtenant without the necessity of confirmation or ratification by such subtenant.  Such agency shall be irrevocable and for the express benefit of Landlord, and Landlord may elect to disregard any notice or other communication purporting to revoke any such agency. (h)           The provisions of Sections 5.06(b), 5.06(d), 5.06(e), 5.06(f), 5.06(g) notwithstanding, Tenant shall have the right to assign this Lease and its rights and obligations hereunder, without the necessity of obtaining the consent of Landlord, to a Successor to Tenant, but only if such Successor, immediately following the conclusion of all of the transactions (the “Succession Transactions”) undertaken in connection with the merger or other succession transaction, has a tangible net worth equal to, or greater than, the greater of (i) the tangible net worth of Tenant as of the date of this Lease; or, (ii) the tangible net worth of Tenant immediately prior to the commencement of the Succession Transactions.  The right of Tenant to make such an assignment without the consent of Landlord shall be conditioned upon there not existing hereunder at the time of such assignment any monetary Event of Default on the part of Tenant under this Lease and there not then existing any event or condition which, with the giving of notice or the passage of time or both, would constitute a monetary Event of Default by Tenant under this Lease. (i)             No assignment or subletting by Tenant shall relieve Tenant of any obligation under this Lease. Any assignment or subletting that conflicts with the provisions hereof shall be void.  No consent by Landlord to any subletting or assignment shall constitute a consent to any other assignment or subletting nor shall it constitute a waiver of any of the provisions of this Section 5.06 as they apply to any such future sublettings or assignments. (j)             Any assignee shall assume in writing, for the express benefit of Landlord, all of the obligations of Tenant under this Lease, provided that no such assumption shall be deemed a novation or other release of the prior Tenant.  Following any assignment, the obligations for which the prior Tenant remains liable under this Lease shall include, without limitation, any obligations arising in connection with any amendments to this Lease executed by Landlord and the assignee, whether or not such amendments are made with knowledge or consent of the prior Tenant. (k)           If this Lease is assigned, whether or not in violation of the terms of this Lease, Landlord may collect Rent from the assignee.  If the Leased Premises or any part thereof is sublet, Landlord may, upon any failure by Tenant to perform its obligations hereunder, collect Rent from the subtenant.  In either event, Landlord may apply the amount collected from the assignee or subtenant to Tenant’s monetary obligations hereunder.  Collecting Rent from the assignee or subtenant or applying that Rent to Tenant’s monetary obligations shall not be deemed to be an acceptance of the assignee or subtenant as a direct tenant of Landlord nor a waiver of any provision of this Section 5.06 nor an assumption by Landlord of any obligation of Tenant or any other party as an assignor or sublessor to such assignee or subtenant. (l)             Tenant shall not enter into any subletting or assignment of this Lease until after the Term Commencement Date has occurred. (m)          Any improvements, additions, or alterations to the Building or the Project that are required by any law, ordinance, rule or regulation, or are deemed necessary or appropriate by Landlord as a result of any subletting or assignment hereunder, shall be installed and provided without cost or expense to Landlord.  Landlord may condition its consent to any proposed subtenant or assignee on the construction of improvements deemed necessary or appropriate by Landlord by reason of the subletting or assignment. (n)           Landlord may hire outside consultants to review all assignment and subletting documents and information.  Tenant shall reimburse Landlord for the cost thereof, including reasonable attorneys’ fees, on demand. (o)           Without liability to Tenant, Landlord shall have the right to offer and to lease space in the Building, or in any other property, to any party, including without limitation parties with whom Tenant is negotiating, or with whom Tenant desires to negotiate, concerning assignment or subletting the Leased Premises, or any portion thereof. 1.03.      Alterations, Additions, Improvements.  (a)            Tenant shall not make or allow to be made any alterations, additions or improvements in or to the Leased Premises (collectively, “Alterations”) without obtaining the prior written consent of Landlord.  Landlord’s consent shall not be unreasonably withheld with respect to proposed Alterations that (i) comply with all applicable laws, ordinances, rules and regulations, (ii) are compatible with the Building and its mechanical, electrical, HVAC and life safety systems; (iii) will not interfere with the use and occupancy of any other portion of the Building by any other tenant or their invitees; (iv) do not affect the structural portions of the Building; and, (v) do not and will not, whether alone or taken together with other improvements, require the construction of any other improvements or alterations within the Building.  In determining whether or not to consent to proposed Alterations, Landlord shall have the right (without limitation) to review plans and specifications for proposed Alterations, construction means and methods, the identity of any contractor or subcontractor to be employed on the work of Alterations, and the time for performance of such work.  Without limiting the other grounds upon which Landlord may refuse to approve any contractor or subcontractor, Landlord may take into account the desirability of maintaining harmonious labor relations at the Project.  Landlord may also require that all life safety related work be performed by the life safety contractor for the Building.  Tenant shall supply to Landlord any documents and information requested by Landlord in connection with the exercise of its rights hereunder.  Upon completion of any Alteration, Tenant shall provide Landlord, at Tenant’s expense, with a complete set of plans in reproducible form and specifications reflecting the actual conditions of the Leased Premises as affected by the Alteration, together with an electronic copy of such plans in the AutoCAD format or such other format as may then be in common use for computer assisted design purposes.  Landlord may hire outside consultants to review such documents and information and Tenant shall reimburse Landlord for the cost thereof, including reasonable attorneys’ fees, upon demand.  All Alterations permitted hereunder shall be made and performed by Tenant, without cost or expense to Landlord, in a diligent and first-class workmanlike manner and in accordance with plans and specifications approved by Landlord, and shall comply with all laws, ordinances, orders, rules and regulations and Landlord’s construction procedures and requirements for the Project (including, without limitation, Landlord’s requirements relating to insurance).  At Landlord’s election, the Alterations permitted hereunder may be made and performed by Landlord, without cost or expense to Landlord.  Tenant shall pay Landlord, upon completion of any Alteration, a reasonable fee for Landlord’s supervision and administration of the installation thereof.  The obligations of the parties with respect to removal of Alterations shall be controlled by Section 5.17.  (b)           Notwithstanding anything to the contrary contained in this Lease, Tenant shall not place or install, or permit to be placed or installed, any alterations, additions, improvements, furniture, fixtures, equipment or other materials or objects of Tenant or any of its employees, agents, contractors, suppliers, representatives or invitees within eighteen inches (18”) from the front induction units in the Leased Premises or on top of the front induction units in the Leased Premises. (c)            If Tenant performs any Alterations permitted under this Section 5.07, Tenant shall, in addition to complying with the provisions of this Section 5.07, perform such Alterations in a manner that avoids disturbing any asbestos containing materials present in the Building.  If asbestos containing materials are likely to be disturbed in the course of such work, Tenant shall encapsulate or remove the asbestos containing materials in accordance with an asbestos-removal plan approved by Landlord and otherwise in accordance with all applicable laws. 1.04.      Liens.  Tenant shall keep the Leased Premises and the Project free from any liens arising out of any (i) work performed or material furnished to or for the Leased Premises, and (ii) obligations incurred by or for Tenant or any person claiming through or under Tenant.  Tenant shall, within ten (10) days following the imposition of any such lien, cause such lien to be released of record by payment or posting of a bond fully satisfactory to Landlord in form and substance.  Landlord shall have the right at all times to post and keep posted on the Leased Premises any notices permitted or required by law, or that Landlord shall deem proper for the protection of Landlord, the Leased Premises, the Project and any other party having an interest therein, from mechanics’, materialmen’s and other liens.  In addition to all other requirements contained in this Lease, Tenant shall give to Landlord at least ten (10) business days prior written notice before commencement of any construction on the Leased Premises. 1.05.      Compliance with Laws and Insurance Standards. (a)            Tenant shall comply with all laws, ordinances, orders, rules and regulations (state, federal, municipal or promulgated by other agencies or bodies having or claiming jurisdiction) related to the use, improvement, condition or occupancy of the Leased Premises and all improvements located therein, regardless of when they become effective, including, without limitation, all applicable federal, state and local laws, regulations or ordinances pertaining to air and water quality, Hazardous Materials, waste disposal, air emissions and other environmental matters and including, without limitation, the Americans with Disabilities Act of 1990.  Tenant shall immediately deliver to Landlord a copy of any notices received from any governmental agency in connection with the Leased Premises.  It is the intention of Tenant and Landlord that the obligations of Tenant under this Section 5.09 shall apply irrespective of the scope of work required to achieve such compliance.  Tenant’s obligations under this Section and Section 5.04 or either of them shall include, without limitation, the responsibility of Tenant to make substantial repairs, improvements or Alterations to the extent provided above, regardless of, among other factors, the relationship of the cost of curative action to the Rent under this Lease, the length of the then remaining Term hereof, the relative benefit of the repairs to Tenant or Landlord, the degree to which the curative action may interfere with Tenant’s use or enjoyment of the Leased Premises, or the likelihood that the parties contemplated the particular law involved.  Tenant waives any rights now or hereafter conferred upon it by any existing or future law to terminate this Lease or to receive any abatement, diminution, reduction or suspension of payment of Rent by reason of the obligations of Tenant under this Section 5.09.  In no event, however, shall Tenant be responsible for any structural upgrade required to be made to the Leased Premises, except to the extent that the requirement of such upgrade is imposed due to the use of the Leased Premises by Tenant or any Alteration made or proposed to be made by Tenant. (b)           Tenant shall promptly cure and satisfy all Hazardous Materials Claims arising out of or by reason of the activities or businesses of Tenant, its subtenants, or the agents, contractors, businesses or employees of Tenant or any subtenant.  Tenant shall not do anything or permit anything to be done in the Leased Premises which creates, requires or causes imposition of any requirement by any public authority for structural or other upgrading of or improvement to the Project. (c)            Tenant shall not occupy or use, or permit any portion of the Leased Premises to be occupied or used, for any business or purpose that is disreputable or productive of fire hazard, or permit anything to be done that would increase the rate of fire or other insurance coverage on the Project and/or its contents.  If Tenant does or permits anything to be done that shall increase the cost of any insurance policy required to be carried hereunder, then Tenant shall reimburse Landlord, upon demand, for any such additional premiums.  Landlord shall deliver to Tenant a written statement setting forth the amount of any such insurance cost increase and showing in reasonable detail the manner in which it has been computed. 1.06.      Entry for Repairs, Inspection, Posting Notices, etc. After reasonable notice (except in the event of emergencies, to supply Basic Services or to supply any extra service referred to in Section 4.02 above, where no such notice shall be required), Landlord, its agents and representatives, shall have the right to enter the Leased Premises to inspect the same, to clean, to perform such work as may be permitted or required hereunder, to make repairs to or alterations of the Project or other tenant spaces therein, to deal with emergencies, to post such notices as may be permitted or required by law to prevent the perfection of liens against Landlord’s interest in the Project or to exhibit the Leased Premises to prospective tenants, purchasers, encumbrancers or others, or for any other purpose as Landlord may deem necessary or desirable; provided, however, that Landlord shall not unreasonably interfere with Tenant’s business operations.  Tenant shall not be entitled to any abatement of Rent by reason of the exercise of any such right of entry. 1.07.      No Nuisance.  Tenant shall conduct its business and control its agents, employees, invitees and visitors without creating any nuisance, or interfering with, annoying, endangering or disturbing any other tenant or Landlord in its operation of the Project.  Tenant shall not place any loads upon the floor, walls or ceiling of the Leased Premises that exceed the design load limitations of the Building or which otherwise endanger the structure nor place any harmful liquids or Hazardous Material in the drainage system of the Building.  Tenant shall not permit any vibration, noise or odor to escape from the Leased Premises and shall not do or permit anything to be done within the Leased Premises which would adversely affect the quality of the air in the Building. 1.08.      Subordination. (a)            Tenant agrees that this Lease and the rights of Tenant hereunder are subject and subordinate to any first lien mortgage or deed of trust which now or in the future encumbers the Project (each such mortgage or deed of trust, a “Mortgage”) and to any and all advances made thereunder, and interest thereon, and all modifications, renewals, supplements, consolidations and replacements thereof.  Tenant agrees, however, that the holder of or beneficiary under a Mortgage (each such holder or beneficiary, a “Mortgage Lender”) may at its option upon written notice to Tenant, unilaterally elect to subordinate, in whole or in part, by an instrument in form and substance satisfactory to such Mortgage Lender, the lien of such Mortgage to this Lease so that this Lease shall then become superior, in whole or in part, to such Mortgage.  In such case, Tenant agrees to execute promptly and to deliver to Landlord or such Mortgage Lender any such subordination instrument or instruments requested by such Mortgage Lender and agrees that if it fails or refuses to do so within fifteen (15) days after written request therefor by Landlord or such Mortgage Lender, such failure or refusal shall constitute an Event of Default by Tenant under this Lease, but such failure or refusal shall in no way affect the validity or enforceability of any such subordination made by such Mortgage Lender. (b)           In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale under any Mortgage made by Landlord encumbering the Project, or in the event of any conveyance in lieu of foreclosure thereof, Tenant shall attorn to the purchaser (including Mortgage Lender or any designee of Mortgage Lender) upon any such foreclosure, sale or conveyance in lieu of foreclosure and recognize such purchaser as Tenant’s landlord under this Lease or, at the option of such purchaser, Tenant will execute a new lease with such purchaser on the same terms and conditions as are contained in this Lease. (c)            Any Mortgage Lender or any successor in interest to any Mortgage Lender shall not be bound by (i) any payment of Gross Rent for more than one (1) month in advance, (ii) damages or offset for any default or act or omission by a predecessor landlord, (iii) any termination or assignment of this Lease except strictly in accordance with the terms of this Lease and the Mortgage, or (iv) any unperformed construction obligation or other default by any predecessor landlord, provided that such Mortgage Lender or successor shall remedy any curable, non-monetary defaults of a continuing nature within a reasonable time following the acquisition by any such party of title to the Project.  Nothing herein contained shall be deemed to impose upon the person or party succeeding to the interest of Landlord as a result of the enforcement of such Mortgage by any Mortgage Lender, any obligation for defaults on the part of Landlord, and any person or party succeeding to possession of the Project as a successor to Landlord shall be subject to Landlord’s obligations hereunder only during the period of such persons’ or party’s ownership, such person or party to have the benefit of Sections 4.05, 5.14 and 7.16.  Within ten (10) days of a written request from Landlord or Mortgage Lender, Tenant shall execute, acknowledge and return to Landlord a Subordination, Nondisturbance and Attornment Agreement with Mortgage Lender on Mortgage Lender’s then standard form. (d)           With reference to any assignment of this Lease and/or the rents payable hereunder, whether as security or absolute, in connection with financing on all or part of the Project, Tenant agrees that Mortgage Lender, as the holder of any Mortgage or other instrument so assigning Landlord’s interest in the Lease and/or the rents therefrom in connection with such financing, shall never be treated as a mortgagee in possession or be liable for any obligations of Landlord, even if Mortgage Lender shall have commenced collecting rents hereunder, until such time as Mortgage Lender shall have obtained actual legal title to or actual physical possession of the Project. 1.09.      Estoppel Certificate.  Within ten (10) days of a written request from Landlord, Tenant shall execute estoppel certificates addressed to (i) any mortgagee or prospective mortgagee of Landlord or, (ii) any purchaser or prospective purchaser of all or any portion of, or interest in, the Project, on a form specified by Landlord, certifying as to such facts (if true) and agreeing to such notice provisions and other matters as such mortgagee(s) or purchaser(s) may reasonably require; provided, however, that in no event shall any such estoppel certificate require an amendment of the provisions hereof, although Tenant shall be bound by the statements made in such certificate.  In the event that Tenant fails or refuses to deliver such an estoppel certificate to Landlord within ten (10) days of a written request from Landlord, then Landlord may give to Tenant a second notice, reiterating the request that Tenant execute an estoppel certificate in the form specified by Landlord and stating that, if Tenant fails to do so within five (5) days of the receipt by Tenant of such second notice from Landlord, Tenant shall be deemed to be bound by the statements set forth in the form of certificate which Landlord requested that Tenant deliver.  In the event that Tenant fails to deliver an estoppel certificate in the form specified by Landlord within five (5) days of the receipt by Tenant of such second notice from Landlord: (i) Tenant shall conclusively be deemed, without exception, to have acknowledged the correctness of the statements set forth in the form of certificate which Landlord requested that Tenant deliver, and Tenant shall be estopped from denying the correctness of each such statement, such that a mortgagee or purchaser may rely on the correctness of the statements in such form of certificate, as if made and certified by Tenant; and, (ii) such failure shall, at the sole option of Landlord and without the necessity of further notice to Tenant, constitute an Event of Default under this Lease. 1.10.      Tenant’s Remedies.  Tenant shall look solely to Landlord’s interest in the Project for recovery of any judgment from Landlord.  Landlord, or if Landlord is a partnership, its partners whether general or limited, or if Landlord is a limited liability company, its members, managers or officers, or if Landlord is a corporation, its directors, officers or shareholders, shall never be personally liable for any such judgment.  Any lien obtained to enforce any such judgment and any levy of execution thereon shall be subject and subordinate to any lien, mortgage or deed of trust to which Section 5.12 applies or may apply. 1.11.      Rules and Regulations.  Tenant shall comply with the Rules and Regulations for the Project attached as Exhibit C and such amendments thereto as Landlord may adopt from time to time with prior notice to Tenant.  Tenant acknowledges that the rules and regulations applicable to other tenants of the Project may not be the same as those applicable to Tenant, and Landlord shall not be liable to Tenant for or in connection with the failure of any other tenant of the Building to comply with any rules and regulations applicable to such other tenant under its lease. 1.12.      Prohibition and Indemnity with Respect to Hazardous Material.  Tenant shall not cause or permit any Hazardous Material to be brought upon, kept or used in or about the Leased Premises by Tenant, its agents, employees, contractors or invitees without the prior written consent of Landlord (which may be granted, conditioned or withheld in the sole discretion of Landlord), save and except only for Permitted Hazardous Materials, which Tenant may bring, store and use in reasonable quantities for their intended use in the Leased Premises, but only in full compliance with all applicable laws, ordinances, orders, rules and regulations.  On or before the expiration or earlier termination of this Lease, Tenant shall remove from the Leased Premises all Hazardous Materials (including, without limitation, Permitted Hazardous Materials), regardless of whether such Hazardous Materials are present in concentrations which require removal under applicable laws, except to the extent that such Hazardous Materials were present in the Leased Premises as of the Term Commencement Date and were not brought onto the Leased Premises by Tenant or its agents, employees or contractors.  Tenant shall immediately advise Landlord in writing of (a) any and all enforcement, clean-up, remedial, removal, restoration or other governmental or regulatory actions instituted, completed, or threatened pursuant to any Hazardous Materials Laws relating to any Hazardous Material affecting the Leased Premises; and (b) all claims made or threatened by any third party against Tenant, Landlord, the Leased Premises or the Project relating to damage, contribution, cost recovery, compensation, loss, or injury resulting from any Hazardous Material on or about the Leased Premises.  Without Landlord’s prior written consent, Tenant shall not take any remedial action or enter into any agreements or settlements in response to the presence of any Hazardous Materials in, on, or about the Leased Premises.  If Tenant breaches the obligations stated in this Section, or if contamination of the Leased Premises by Hazardous Material occurs for which Tenant is legally liable to Landlord for damage resulting therefrom, or if Tenant’s activities or those of its contractors, agents, employees, businesses (or those of its subtenants) result in or cause a Hazardous Materials Claim, then Tenant shall indemnify, defend, protect and hold Landlord harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Leased Premises, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Leased Premises, damages arising from any adverse impact on marketing of space, and sums paid in settlement of claims, attorneys’ fees, consultants’ fees and experts’ fees) which arise during or after the Term of this Lease as a result of such contamination.  This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any clean-up, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or ground water on or under the Leased Premises.  The foregoing indemnity shall survive the expiration or earlier termination of this Lease. 1.13.      Surrender of Premises on Termination.  On or before the ninetieth (90th) day preceding the Term Expiration Date, Tenant shall notify Landlord in writing of the precise date upon which Tenant plans to surrender the Leased Premises to Landlord, but neither the lack of such notice nor any failure by Landlord to protest the lack of such notice by Tenant shall be construed as an extension of the Term or as a consent by Landlord to any holding over by Tenant.  On expiration of the Term, Tenant shall quit and surrender the Leased Premises to Landlord, broom clean, in good order, condition and repair as required by Section 5.04, with all of Tenant’s movable equipment, telecommunications and data equipment and wiring, furniture, trade fixtures and other personal property removed therefrom.  Tenant shall reimburse Landlord upon the expiration or earlier termination of the Term of this Lease for the reasonable cost of removing all telecommunications and data cabling installed in the Leased Premises by, or for the use of, Tenant.  Unless Tenant has obtained Landlord’s agreement in writing that it can remove an Alteration or item of Tenant Improvements, or unless Landlord has elected to require that all or certain Alterations or Tenant Extra Improvements be removed by Tenant, all Alterations and Tenant Improvements shall be surrendered with the Leased Premises in good condition and repair, subject to reasonable wear and tear (but only to an extent consistent with the Leased Premises remaining in good condition and repair) and casualty damage that is not required to be repaired by Tenant hereunder.  Any property of Tenant not removed hereunder shall be deemed, at Landlord’s option, to be abandoned by Tenant and Landlord may store such property in Tenant’s name at Tenant’s expense, and/or dispose of the same in any manner permitted by law.  If Landlord desires to have the Leased Premises, or any part or parts thereof, restored to a condition that existed prior to installation of any Tenant Extra Improvements or to their condition prior to making any Alteration thereto, Landlord shall so notify Tenant in writing not later than sixty (60) days prior to the expiration of the Term; and upon receipt of such notice, Tenant shall, at Tenant’s sole cost and expense, so restore the Leased Premises, or such part or parts thereof, before the end of the Term.  Tenant shall repair at its sole cost and expense, all damage caused to the Leased Premises or the Project by removal of Tenant’s movable equipment or furniture and such Tenant Improvements and Alterations as Tenant shall be allowed or required to remove from the Leased Premises by Landlord.  If the Leased Premises are not surrendered as of the end of the Term in the manner and condition herein specified, then: (i) Landlord may, after five (5) days written notice to Tenant, perform the obligations which Tenant failed to perform, and Tenant shall reimburse Landlord for all expenses incurred by Landlord in performing such obligations, such reimbursement to be made within ten (10) days of the receipt by Tenant of a written request from Landlord for such reimbursement, accompanied by reasonable evidence of the expenses incurred by Landlord; and, (ii) Tenant shall indemnify, defend, protect and hold Landlord harmless against all loss, liability, claim, cost or expense (including attorneys’ fees) resulting from or caused by Tenant’s delay or failure in so surrendering the Leased Premises, including, without limitation, any claims made by any succeeding tenant due to such delay or failure.  Tenant acknowledges that Landlord will be attempting to lease the Leased Premises with any such lease to be effective upon expiration of the Term, and failure to surrender the Leased Premises could cause Landlord to incur liability to such successor tenant for which Tenant shall be responsible hereunder to the full extent thereof. ARTICLE 2.
Condition And Operation Of The Building 2.01.      Acceptance of Possession.  Tenant shall accept possession of the Leased Premises as of the Term Commencement Date in its then “AS IS” condition.  Except as expressly provided in this Lease, Landlord shall have no obligation of any kind or character, express or implied, with respect to the design or condition of the Leased Premises, Building or Project or the suitability thereof for Tenant’s purposes.  Tenant acknowledges and agrees that it has neither received nor relied upon any representation or warranty made by or on behalf of Landlord with respect to the design or condition of the Leased Premises, Building or Project or the suitability thereof for Tenant’s purposes. 2.02.      Alteration of Building.  Landlord may, at any time and from time to time: (i) make alterations, structural modifications, seismic modifications or additions to the Building; (ii) change, add to, eliminate or reduce the extent, size, shape or configuration of any aspect of the Building or other part of the Project or its operations; (iii) change the arrangement, character, use or location of corridors, stairs, toilets, mechanical, plumbing, electrical or other operating systems or any other parts of the Building; and (iv) change the name, number or designation by which the Building or the Project is commonly known.  None of the foregoing acts shall be deemed an actual or constructive eviction of Tenant, shall entitle Tenant to any reduction of Rent or shall result in any liability of Landlord to Tenant.  Landlord shall have the exclusive rights to the airspace above and around, and the subsurface below, the Leased Premises and other portions of the Building, and, subject to the rights of Tenant specified in this Lease as to the non-exclusive use of certain portions of the Common Areas, Landlord shall have the sole and exclusive right to possession and control of all portions of the Building outside of the Leased Premises, including, without limitation, the exclusive right to use, or permit others to use, the exterior walls, roofs and other such areas for signs or notices or for any other purposes. ARTICLE 3.
Casualty, Eminent Domain And Miscellaneous Matters 3.01.      Landlord’s Property Insurance.  Landlord shall maintain, or cause to be maintained, a policy or policies of insurance with the premiums thereon fully paid in advance, issued by and binding upon an insurance company of good financial standing, insuring the Project against loss or damage by fire and such other hazards as Landlord may elect (that may include earthquake loss if Landlord elects to maintain such coverage) and contingencies for the full insurable value thereof, or, in the alternative, insuring for eighty percent (80%) of the replacement cost thereof (or such minimum amount as shall be required to eliminate operation of coinsurance provisions), exclusive of excavations and foundations; provided, however, that Landlord shall not be obligated to insure any furniture, equipment, machinery, goods or supplies not covered by this Lease that Tenant may keep or maintain in the Leased Premises, or any Tenant Extra Improvements or Alterations that Tenant may make upon the Leased Premises.  If the annual premiums charged Landlord for such property insurance exceed the standard premium rates because the nature of Tenant’s operations result in extra-hazardous or higher than normal risk exposure, then Tenant shall, upon receipt of appropriate premium invoices, reimburse Landlord for such increases in premium.  All insurance proceeds payable under Landlord’s insurance carried hereunder shall be payable solely to Landlord, and Tenant shall have no interest therein. 3.02.      Liability Insurance.  Landlord (with respect to the Project) and Tenant (with respect to the Leased Premises and Project) shall each maintain or cause to be maintained a policy or policies of commercial general liability insurance with the premiums thereon fully paid in advance, issued by and binding upon an insurance company of good financial standing, such insurance to afford minimum protection of not less than Five Million Dollars ($5,000,000.00) each occurrence combined single limit for bodily injury and property damage.  The coverages required to be carried shall be extended to include, but not to be limited to, blanket contractual liability, personal injury liability (libel, slander, false arrest and wrongful eviction), and broad form property damage liability (including, without limitation, fire legal liability and such other risks as Landlord may specify by written notice to Tenant).  Tenant’s contractual liability insurance shall apply, without limitation, to all of Tenant’s indemnity obligations under this Lease.  The certificate evidencing Tenant’s insurance coverage required hereunder shall state that the insurance includes the liability assumed by Tenant under this Lease and that Tenant’s insurance is primary with any other insurance available to Landlord or any other named insured being excess.  Upon request of Tenant, Landlord shall provide Tenant reasonable evidence that the insurance required to be maintained hereunder by Landlord is in full force and effect. 3.03.      Tenant’s Property Insurance and Additional Tenant Insurance Requirements. (a)            Tenant shall provide insurance coverage during the Term against loss or damage by fire and such other risks as are from time to time included in an “all risk” policy (including, without limitation, sprinkler leakage and water damage), insuring the full insurable value of any Tenant Extra Improvements, any Alterations, Tenant’s trade fixtures, furnishings, equipment, and all other items of personal property of Tenant, insuring the full replacement cost thereof. (b)           All policies required to be carried by Tenant under this Article 7 shall be written with financially responsible companies with an AM Best Company rating of “B+” “VIII” or better, and all such insurance (and evidence of insurance provided to Landlord) shall contain an endorsement or endorsements providing that (i) Landlord, Hines Interests Limited Partnership, and any lender with a deed of trust encumbering the Project or any part thereof, of whom Landlord has notified Tenant, are included as additional insureds (by using the ISO Additional Insured Endorsement CG 2037 or CG 2026, or their equivalent), (ii) the insurer agrees not to cancel or alter the policy without at least thirty (30) days’ prior written notice to Landlord and all named and additional insureds, and (iii) all such insurance maintained by Tenant is primary, with any other insurance available to Landlord or any other named or additional insured being excess and non-contributing.  Any deductible or self-insurance provisions under any insurance policies maintained by Tenant shall be subject to Landlord’s prior written approval which shall not be unreasonably withheld. (c)            Tenant shall provide evidence of each of the policies of insurance which Tenant is required to obtain and maintai

Last updated: 11.17.2010 05:46 PM