occupancy or inaccessible by reasonable means for at least one hundred eighty (180) days after commencement of repairs to the Building.
7.1.2.Partial Destruction; Failure to Terminate. If the Building or the Parking Facilities and/or the Premises should be partially destroyed by fire or other casualty or if the Building or the Parking Facilities and/or the Premises is completely destroyed and neither Landlord nor Tenant elects to terminate this Lease pursuant to Section 7.1.1, then Landlord shall promptly commence (and thereafter pursue with reasonable diligence) the plans and specifications for the repair of the Building, the Parking Facilities and/or the Premises (excluding the Tenant Improvements except as provided below) and thereafter diligently pursue repairing the Building, the Parking Facilities and/or the Premises to substantially the same condition (including restoration and repair of Landlord’s Work and Base Building) which existed immediately prior to the occurrence of the casualty (excluding the Tenant Improvements except as provided below). To the extent insurance proceeds are available for the Tenant Improvements required to be insured by Tenant under subsection 7.2.1(b) below, Landlord shall have the obligation to repair such items to the extent the proceeds of such insurance are disbursed to Landlord for such repair. Notwithstanding anything to the contrary contained in this section, if at the time of any damage to the Premises or to the Project which materially affects Tenant’s access to or use of the Premises and requires more than thirty (30) days to repair, less than one (1) year remains in the Term, then Landlord or Tenant shall each have the right to terminate this Lease upon notice within thirty (30) days following the casualty.
7.1.3.Limitation on Landlord’s Obligations; Abatement of Rent. In no event shall Landlord be required to rebuild, repair or replace any part of the furniture, equipment, fixtures, inventory, supplies or any other personal property or any other improvements (except to the extent set forth in Section 7.12 above), which may have been placed by Tenant within the Building, the Parking Facilities or the Premises. Landlord shall allow Tenant a fair diminution of Basic Annual Rent and Additional Rent during the time the Premises are unfit for occupancy; provided, however, if the casualty in question was caused by Tenant, its agents, employees, licensees or invitees, Basic Annual Rent and Additional Rent shall be abated only to the extent Landlord is compensated for such Basic Annual Rent and Additional Rent by loss of rents insurance, if any. Notwithstanding anything contained in this Lease to the contrary, in no event will Landlord be required to spend more in connection with any casualty than the insurance proceeds received by Landlord with respect to such casualty; provided that if Landlord does not complete repair as provided in Section 7.1.1 and the same materially impairs Tenant’s use of the Premises, the Building or the Parking Garage, Tenant shall have the right to terminate this Lease.
7.1.4.Termination Resulting from Mortgagee’s Use of Proceeds. Notwithstanding Landlord’s restoration obligation, in the event any mortgagee under a deed of trust or mortgage on the Building and the Parking Facilities should require that the insurance proceeds be used to retire or reduce the mortgage debt or if the insurance company issuing Landlord’s fire and casualty insurance policy fails or refuses to pay Landlord the proceeds under such policy, Landlord shall have no obligation to rebuild and this Lease shall terminate upon notice by Landlord to Tenant.
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7.1.5.Insurance Proceeds. Any insurance which may be carried by Landlord or Tenant against loss or damage to the Building, the Parking Facilities or the Premises shall be for the sole benefit of the party carrying such insurance and under its sole control.
SECTION 7.2 TENANT’S INSURANCE.
7.2.1 Types of Coverage. From and after the Date of Lease, Tenant shall carry, at its expense, the insurance set forth in this subsection.
(a) Commercial General Liability Insurance. Commercial General Liability Insurance covering the Premises and Tenant’s use thereof against claims for personal or bodily injury or death or property damage occurring upon, in or about the Premises (including contractual indemnity and liability coverage), such insurance to provide coverage of not less than $2,000,000 per occurrence and $2,000,000 annual aggregate, with a deductible reasonably acceptable to Landlord. All insurance coverage required under this subsection (a) shall extend to any liability of Tenant arising out of the indemnities provided for in this Lease to the extent such indemnity would be covered by commercial general liability insurance.
(b) Property Insurance. Causes of Loss – Special Form (or its equivalent) property insurance (including coverage against fire, wind, tornado, vandalism, malicious mischief, water damage and sprinkler leakage) covering all Tenant-owned fixtures, Tenant improvements, equipment and leasehold improvements, and other personal property located in the Premises and endorsed to provide one hundred percent (100%) replacement cost coverage. Such policy shall be written in the name of Tenant. The property insurance may, with the consent of Landlord, provide for a reasonable deductible.
(c) Workers Compensation’ and Employer’s Liability Insurance. Worker’s compensation and employer’s liability insurance with minimum statutory limits as required by law, but in no case less than $1,000,000 per accident, disease and aggregate.
(d) Hired and Non-Owned Auto Liability Insurance. Hired and Non-Owned Auto Liability Insurance (if applicable) covering automobiles owned, hired or used by Tenant in carrying on its business with limits not less than $1,000,000 combined single limit for each accident.
(e) Umbrella / Excess Liability Insurance. Umbrella or excess liability insurance with a limit not less than $5,000,000 per occurrence and $5,000,000 annual aggregate.
(h) Business Interruption Insurance. Business income and extra expense insurance meeting at least the following specifications: (i) coverage is to be provided on all operations at the Premises; (ii) insurance is to be issued on an ISO CP 00 30 10 12 Business Income (And Extra Expense) Coverage Form or its equivalent; (iii) insurance is to be issued on an “agreed amount” basis; (iv) coverage is to be equal to no less than twelve (12) months of income and ongoing expenses; and (v) coverage is to be endorsed to cover losses arising from interruption of utilities outside the Premises.
7.2.2 Other Requirements of Insurance. All such insurance shall be issued and underwritten by companies with an AM Best rating of A-, VIII or better and shall contain endorsements that
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(a) such insurance may not lapse with respect to Landlord or Property Manager or be canceled or amended with respect to Landlord or Property Manager without the insurance company giving Landlord and Property Manager at least thirty (30) days prior written notice of such cancellation or amendment, (b) Tenant shall be solely responsible for payment of premiums, (c) in the event of payment of any loss covered by such policy, Landlord or Landlord’s designees shall be paid first by the insurance company for Landlord’s loss, (d) all liability insurance, except workers’ compensation insurance, maintained by Tenant pursuant to this subsection shall name Landlord, Landlord’s managing agent, and any superior mortgagee or superior lessee as additional insureds as their respective interests may appear (and Tenant shall be the named insured), and all property insurance shall permit the waiver or subrogation set forth in Section 7.4, and (e) Tenant’s insurance is primary in the event of overlapping coverage that may be carried by Landlord.
7.2.3 Proof of Insurance. Prior to the Date of Lease, Tenant shall deliver to Landlord duly executed, original certificates of such insurance evidencing in-force coverage. Further, Tenant shall endeavor to deliver to Landlord a duly executed, original certificate of insurance evidencing the renewal of each insurance policy required to be maintained by Tenant hereunder at least fifteen (15) days prior to the expiration of the policy in question but in all events promptly after renewal of the policy.
7.2.4 Landlord Remedies. If at any time, after ten (10) business days’ notice and opportunity to cure, Tenant neglects or fails to provide or maintain insurance or to deliver a certificate of insurance in accordance with this Section 7.2, Landlord may effect such insurance as agent for Tenant, by taking out policies in companies selected by Landlord, and the actual amount of the premiums paid for such insurance shall be paid by Tenant to Landlord on demand, as Additional Rent. Landlord, in addition to Landlord’s other rights and remedies, shall be entitled to recover as damages for any breach of this Section 7.2 the amount of any loss, liability, damage, claim, costs, and expenses suffered or incurred by Landlord. Any amount so advanced shall bear interest at the rate set forth in Section 2.4 above.
SECTION 7.3 LANDLORD’S INSURANCE.
7.3.1 Types of Coverage. From and after the Date of Lease, Landlord shall carry the insurance set forth in this subsection:
(a) Commercial General Liability Insurance. Landlord will carry Commercial General Liability policy or policies covering the Building against claims for personal or bodily injury, or death, or property damage resulting from the negligence of Landlord or Property Manager or their agents, occurring upon, in or about the Building to afford protection to the limit of not less than $2,000,000 annual aggregate. All insurance coverage required under this subsection (a) shall extend to any liability of Landlord arising out of the indemnities provided for in this Lease to the extent such indemnity would be covered by the contractual liability coverage provided under Landlord’s commercial general liability insurance.
(b) Property Insurance. From and after the Date of Lease, Landlord will carry a policy or policies of Causes of Loss - Special Form (or its equivalent) property insurance covering the Building
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(excluding property required to be insured by Tenant) with any such deductibles as Landlord may from time to time determine.
7.3.2 Other Requirements of Insurance. Any insurance provided for in this Section 7.3 may be affected by self-insurance or by a policy or policies of blanket insurance covering additional items or locations or assureds, provided that the requirements of this Section 7.3 are otherwise satisfied. Tenant shall have no rights in any policy or policies maintained by Landlord.
SECTION 7.4 WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives any rights it may have against the other (including, but not limited to, a direct action for damages) on account of any loss or damage occasioned to Landlord or Tenant, as the case may be (even if such loss or damage is caused by the fault, negligence or other tortious conduct, acts or omissions of the released party or the released party’s directors, employees, agents or invitees or if the released party or the released party’s directors, employees, agents or invitees would otherwise be liable under strict liability), to their respective property, the Premises, its contents or to any other portion of the Building or the Property arising from any risk (without regard to the amount of coverage) covered (excluding deductibles) by the property insurance carried or required to be carried by Tenant and Landlord, respectively, under subsection 7.2.1 and subsection 7.3.1 above or any other property insurance carried by Landlord or Tenant. The foregoing waiver shall be effective even if either or both parties fail to carry the insurance required by subsection 7.2.1 and subsection 7.3.1 above. Without limiting the foregoing waivers and to the extent permitted by applicable law, each of the parties hereto, on behalf of their respective insurance companies insuring the property of such party against loss, waive any right of subrogation that such party or Property Manager or its respective insurers may have against the other party or its respective officers, directors, employees, agents or invitees and all rights of their respective insurance companies based upon an assignment from its insured. Each party to this Lease agrees immediately to give to each such insurance company written notification of the terms of the mutual waivers contained in this Section if required to effectuate such waivers and to have its insurance policies properly endorsed, if necessary, to prevent the invalidation of insurance coverage by reason of such waivers.
Section 7.5 TENANT’S GENERAL INDEMNITY. Tenant shall defend, indemnify, and hold harmless Landlord, Property Manager, and their respective officers, directors, employees, and agents from and against all claims, demands, actions, damages, loss, liabilities, judgments, costs, and expenses, including without limitation, attorneys’ fees and court costs (each, a “Landlord Claim”) which are suffered by, recovered from, or asserted against Landlord or Property Manager and arise from or in connection with (i) the use or occupancy of the Premises, (ii) any accident, injury, or damage occurring in or at the Premises, (iii) any accident, injury, or damage occurring in or at the Property to the extent caused by the negligence or willful misconduct of Tenant or its employees, agents, contractors, customers, subtenants, sub-subtenants, invitees, or licensees, or (iv) any breach by Tenant of any representation or covenant in this Lease, including without limitation, Tenant’s failure to comply with all applicable Legal Requirements; provided, however, such indemnification shall not include any Landlord claim waived by Landlord under Section 7.4 above, or any Landlord claim to the extent caused by the sole negligence or willful misconduct of Landlord or Property Manager.
SECTION 7.6 LANDLORD’S GENERAL INDEMNITY. Landlord will defend, indemnify and hold harmless Tenant and its officers, directors, employees and agents from and against all claims, demands, actions, damages, loss, liabilities, judgments, costs and expenses, including without limitation, attorney’s
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fees and court costs (each, a “Tenant Claim”) which are suffered by, recovered from or asserted against Tenant and arise from or in connection with (i) any accident, injury or damage occurring in or at the Property (other than in the Premises), or (ii) any breach by Landlord of any representation or covenant in this Lease. Landlord’s indemnity and hold harmless obligations shall apply even in the event of the fault or negligence of the parties indemnified and held harmless hereunder to the fullest extent permitted by law, but in no event shall they apply to liability caused by the willful misconduct or sole negligence of the parties indemnified or held harmless. Further, such indemnification shall not include any Tenant Claim waived by Tenant under Section 7.4.
ARTICLE 8
CONDEMNATION
If the Property or any portion thereof that, in Landlord’s or Tenant’s reasonable opinion, is necessary to the continued efficient and/or economically feasible use of the Property or the Premises shall be taken or condemned for public purposes, or sold to a condemning authority in lieu thereof, then either party may, at its option, terminate this Lease on the effective date of such taking by delivering written notice thereof to the other party on or before ten (10) days after the effective date of the taking, condemnation or sale in lieu thereof. If neither Landlord nor Tenant elects to exercise such termination right, then this Lease shall continue in full force and effect, provided that if the taking, condemnation or sale includes any portion of the Premises, the Basic Annual Rent and Additional Rent shall be equitably redetermined on the basis of the remaining square feet of Premises Rentable Area taking into consideration the practical utility thereof. Landlord, at Landlord’s sole option and expense, shall restore and reconstruct the Building to substantially its former condition to an integrated, architectural whole, to the extent that the same may be reasonably feasible, but such work shall not be required to exceed the scope of the work done by Landlord in originally constructing the Building. Landlord shall receive the entire award (which shall include sales proceeds) payable as a result of a condemnation, taking or sale in lieu thereof. Tenant shall, however, have the right to recover from such authority through a separate award which does not reduce Landlord’s award, any compensation as may be awarded to Tenant on account of moving and relocation expenses and depreciation and removal of Tenant’s physical property.
ARTICLE 9
LIENS
Tenant shall keep the Premises and the Property free from all liens arising out of any work performed, materials furnished or obligations incurred by or for Tenant. Landlord and Tenant acknowledge and agree that their relationship is and shall be solely that of “landlord-tenant” (thereby excluding a relationship of “owner-contractor,” “owner-agent” or other similar relationships) and that Tenant is not authorized to act as Landlord’s common law agent or construction agent in connection with any work performed on the Property. Accordingly, all materialmen, contractors, artisans, mechanics, laborers and any other persons now or hereafter contracting with Tenant for the furnishing of any labor, services, materials, supplies or equipment with respect to any portion of the Property, at any time from the date hereof until the end of the Term, are hereby charged with notice that they look exclusively to Tenant to obtain payment for same. Nothing herein shall be deemed a consent by Landlord to any liens being placed upon any portion of the Property or Landlord’s interest therein due to any work performed by or for Tenant or deemed to give any contractor or subcontractor or materialman any right or interest in any funds held by Landlord to reimburse Tenant for any portion of the cost of such work. Tenant shall defend
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indemnify and hold harmless Landlord from and against any and all claims, causes of action, damages and expenses (including reasonable attorneys’ fees) arising from or in connection with any such liens. If Tenant shall not, within ten (10) business days following notification to Tenant of the imposition of any such lien, cause the same to be released of record by payment or the posting of a bond in amount, form and substance acceptable to Landlord, Landlord shall have, in addition to all other remedies provided herein and by law, the right but not the obligation, to cause the same to be released by such means as it shall deem proper, including payment of or defense against the claim giving rise to such lien. All amounts paid or incurred by Landlord in connection therewith shall be paid by Tenant to Landlord on demand and shall bear interest from the date of demand until paid at the rate set forth in Section 2.4 above.
ARTICLE 10
TAXES ON TENANT’S PROPERTY
Tenant shall be liable for and shall pay, prior to their becoming delinquent, any and all taxes and assessments levied against any personal property or trade or other fixtures placed by Tenant in or about the Premises.
ARTICLE 11
SUBLETTING AND ASSIGNING
SECTION 11.1 SUBLEASE AND ASSIGNMENT. Except as otherwise permitted herein and by Section 11.2 and Section 11.3 below, Tenant shall not assign this Lease, or allow it to be assigned, in whole or in part, by operation of law or otherwise (it being agreed that for purposes of this Lease, assignment shall include, without limitation, the transfer of a majority interest of stock, partnership or other forms of ownership interests, merger or dissolution) or mortgage or pledge the same, or sublet the Premises or any part thereof or permit the Premises to be occupied by any individual or business entity, or any combination thereof, other than Tenant, without the prior written consent of Landlord, which shall not be unreasonably withheld, delayed or conditioned. Any attempt to consummate any of the foregoing without Landlord’s consent shall be of no force or effect. Notwithstanding any subletting or assignment by Tenant hereunder or any provision herein to the contrary, Tenant shall remain fully liable for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease on the part of Tenant to be performed. No assignee or subtenant of the Premises or any portion thereof may assign or sublet the Premises or any portion thereof. Any assignment made by Tenant shall contain a covenant of assumption by the assignee running to Landlord. All reasonable legal fees and expenses incurred by Landlord in connection with any assignment or sublease proposed by Tenant will be paid by Tenant within thirty (30) days of receipt of an invoice from Landlord.
Notwithstanding the foregoing, Tenant shall have the right at any time during the Term of this Lease, without Landlord’s consent but with prior written notice to Landlord and reimbursement of Landlord for all reasonable out of pocket expenses related to review and negotiation of any documentation required by an Affiliate (as hereinafter defined) or its lender, to sublet the Premises, or any portion thereof, to any Affiliate or to assign Tenant’s interest in this Lease to any Affiliate, provided that any sublease or assignment is not a subterfuge by Tenant to avoid its obligations hereunder or the restrictions on transfers under this Article 11 and such Affiliate has a net worth reasonably sufficient to satisfy the obligations hereunder (or the sublease, as applicable) that it is assuming. The term “Affiliate”
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shall mean an entity that is either (i) a surviving corporation in the event of a merger or consolidation by Tenant (it being agreed that Tenant may engage in any such merger or consolidation whether Tenant or the other entity is the survivor) so long as such survivor owns the majority of the assets of Tenant, (ii) Tenant’s parent corporation, a wholly-owned subsidiary of Tenant or an entity controlled by or under common control with Tenant or (iii) any entity which may acquire all or substantially all of the assets of Tenant. Prior to any such sublease or assignment to an Affiliate, Tenant shall give Landlord notice thereof, together with information reasonably acceptable to Landlord substantiating that such subtenant or assignee is, in fact, an Affiliate as herein provided. Notwithstanding any provisions to the contrary contained in this Article 11, Tenant may not, through the use of any of its rights under this Article 11, through two (2) or more transactions, at one time or over time, whether by first assigning this Lease to an Affiliate and then merging the Affiliate into another entity or selling the stock or other ownership interests of such Affiliate or by other means, assign this Lease or any interest herein or sublease the Premises or any portion thereof, in any manner otherwise prohibited by this Article 11 or otherwise requiring consent of Landlord under this Article 11.
If any Guarantor is acquired or merged with any entity or sells or transfers all or substantially all of such Guarantor’s assets, then, within five (5) days following the effective date of such transaction, Tenant shall cause the entity with the greatest net worth in the ownership structure of the merged, surviving, or acquiring entity (which may be a direct or indirect parent) to assume in writing all of Guarantor’s obligations under its guaranty relating to this Lease. Tenant’s failure to timely deliver such assumption to Landlord shall be default (as defined in Section 13.1) hereunder.
SECTION 11.2 LANDLORD’S RIGHTS. If Tenant desires to sublease any portion of the Premises or assign this Lease to a party which is not an Affiliate, Tenant shall submit to Landlord (a) in writing, the name of the proposed subtenant or assignee, the nature of the proposed subtenant’s or assignee’s business and, in the event of a sublease, the portion of the Premises which Tenant desires to sublease; (b) the proposed date that the subtenant or assignee would begin paying rent (the “Transfer Date”); (c) a current balance sheet and income statement for such proposed subtenant or assignee; (d) a copy of the proposed form of sublease or assignment; (e) any proposed modifications to the Premises, including a code compliant demising plan; and (f) such other information as Landlord may reasonably request (collectively, the “Required Information”). Landlord shall, within thirty (30) days after Landlord’s receipt of the Required Information, deliver to Tenant a written notice (a “Landlord Response”) in which Landlord (i) consents to the proposed sublease or assignment, (ii) withholds its consent to the proposed sublease or assignment, which consent shall not be unreasonably withheld so long as Tenant is not in default hereunder and Landlord has received all Required Information; (iii) terminates this Lease if Tenant is attempting to assign this Lease; or (iv) if Tenant desires to sublease more than fifty percent (50%) of the Premises (except to an Affiliate), terminates this Lease as to the proposed sublease space only. Any failure by Landlord to deliver the Landlord Response within said 30-day period shall be deemed to constitute the election of option (ii) above. As long as no Event of Default has occurred and is continuing, Landlord’s consent to a proposed assignment or sublease shall not be unreasonably withheld. Tenant agrees that it is reasonable for Landlord to withhold its consent to a proposed sublease or assignment based upon, among other factors, the following factors: (i) the business reputation of the proposed subtenant or assignee, (ii) the financial strength or creditworthiness of the proposed subtenant or assignee, (iii) the operations and use of the proposed subtenant or assignee if not for general office use, (iv) the proposed manager of the business operations of the proposed subtenant or assignee, (v) whether Landlord has experienced prior defaults with the proposed assignee or subtenant, (vi) whether the
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proposed assignee or subtenant is a governmental entity, (vii) the length of the proposed sublease, and/or (viii) if the proposed subtenant or assignee is an existing tenant in the Building or is a prospect that has received a proposal from the Landlord in the prior six (6) months. In lieu of consenting to any such proposed sublease or assignment (and without regard to whether Landlord’s action is “reasonable” or “unreasonable”) Landlord shall have the right, within thirty (30) days after Landlord’s receipt of the Required Information to (1) suspend this Lease as to the space so affected as of the date and for the duration of the proposed sublease or assignment, whereupon Tenant shall be relieved of all obligations hereunder as to such space during such suspension, but after such suspension, Tenant shall once again become liable hereunder as to the relevant space or, (2) if the proposed assignment or sublease is for the remainder of the Term of this Lease, terminate this Lease as to the space so affected as of the Transfer Date, in which event Tenant shall be relieved of any and all further obligations hereunder as to such space, or (3) propose reasonable modifications to the terms of this Lease that Landlord deems reasonably necessary in light of the proposed transfer (and which modifications shall automatically become effective upon the closing of the subject transfer).
SECTION 11.3 LANDLORD’S RIGHTS RELATING TO ASSIGNEE OR SUBTENANT. If this Lease or any part hereof is assigned or the Premises or any part thereof are sublet, Landlord may at its option during the continuance of any Event of Default, collect directly from such assignee or subtenant all rents becoming due to Tenant under such assignment or sublease and apply such rent against any sums due to Landlord by Tenant hereunder. Tenant hereby authorizes and directs any such assignee or subtenant to make such payment of rent directly to Landlord upon receipt of notice from Landlord, and Tenant agrees that any such payments made by an assignee or subtenant to Landlord shall, to the extent of the payments so made, be a full and complete release and discharge of rent owed to Tenant by such assignee or subtenant. No direct collection by Landlord from any such assignee or subtenant shall be construed to constitute a novation or a release of Tenant or any guarantor of Tenant from the further performance of its obligations hereunder. In the event that, following an assignment or subletting, this Lease or the rights and obligations of Tenant hereunder are terminated for any reason, including without limitation in connection with default by or bankruptcy of Tenant, Landlord may, at its option, consider this Lease to be thereafter a direct lease to the assignee or subtenant of Tenant upon the terms and conditions contained in this Lease. Tenant shall pay to Landlord fifty percent (50%) of all rent, compensation, and other consideration in excess of the Basic Annual Rent and Additional Rent that Tenant receives by reason of any assignment, sublease, or other transfer (after deducting Tenant’s reasonable actual out of pocket costs, including market brokerage commissions and tenant improvements), regardless of whether such assignment, sublease, or other transfer is consented to by Landlord or not. Tenant shall make each payment required hereunder to Landlord within five (5) business days following the date that such payment is received by Tenant.
ARTICLE 12
TRANSFERS BY LANDLORD, SUBORDINATION AND
TENANT’S ESTOPPEL CERTIFICATE
SECTION 12.1 SALE OF THE PROPERTY. In the event of any transfer of title to the Property, the transferor shall automatically be relieved and freed of all obligations of Landlord under this Lease accruing after such transfer, provided that the transferee expressly assumes in writing all obligations of Landlord hereunder accruing after the date of such transfer and further provided that if a
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Security Deposit has been made by Tenant, Landlord shall not be released from liability with respect thereto unless Landlord transfers the Security Deposit to the transferee.
SECTION 12.2 SUBORDINATION, ATTORNMENT AND NOTICE. This Lease is subject and subordinate (i) to each lease of all or any portion of the Property wherein Landlord is the tenant and to the lien of each mortgage and deed of trust encumbering all or any portion of the Property, regardless of whether such lease, mortgage or deed of trust now exists or may hereafter be created, (ii) to any and all advances (including interest thereon) to be made under each such lease, mortgage or deed of trust and (iii) to all modifications, consolidations, renewals, replacements and extensions of each such lease, mortgage or deed of trust (collectively, “Mortgage”). The party having the benefit of a Mortgage or Deed of Trust is referred to as a “Mortgagee.” This clause shall be self-operative, but upon request from a Mortgagee, Tenant shall execute a commercially reasonable subordination agreement in favor of the Mortgagee. In lieu of having the Mortgage be superior to this Lease, a Mortgagee shall have the right at any time to subordinate its Mortgage to this Lease. If requested by a successor-in-interest to all or a part of Landlord’s interest in this Lease, Tenant shall, without charge, attorn to the successor-in-interest. However, in the event of attornment after a foreclosure sale or deed in lieu of foreclosure, no purchaser at such sale, grantee of such deed, or immediate transferee from such purchaser or grantee shall be: (A) liable for any act, omission or default of Landlord; (B) subject to any offsets or defenses that Tenant might have against Landlord or subject to exercise of a right of termination by Tenant that matures prior to the date Mortgagee takes title (other than a right of termination previously arising under either Article 7 or 8); (C) liable for or bound by any Basic Annual Rent or other Rent which Tenant might have paid for more than the current month to Landlord; (D) liable for or obligated to cure any defaults of Landlord that occurred prior to the time that Mortgagee succeeded to the interest of Landlord hereunder ; (E) liable, bound or responsible for or with respect to the retention, application and/or return to Tenant of any security deposit paid to Landlord hereunder, whether or not still held by Landlord, unless and until Mortgagee has actually received for its own account the full amount of such security deposit or cleaning deposit, or (F) liable for or bound by any agreement of Landlord with respect to the completion of any improvements to the Property or Premises or for the payment or reimbursement to Tenant of any contribution to the cost of the completion of any such improvements; or (G) bound by any modification, amendment, surrender or termination of this Lease without Mortgagee’s written consent (other than any modification, amendment, surrender or termination that does not require Mortgagee’s consent pursuant to the terms of the loan documents between Landlord and Landlord’s Mortgagee). Notwithstanding the foregoing, Landlord shall, at or prior to the Commencement Date, secure from Landlord’s present Mortgagee a non-disturbance agreement in the form attached as Exhibit J. Further, any subordination of this Lease to a future Mortgage shall be subject to Tenant’s receipt of a non-disturbance agreement on such future Mortgagee’s standard form.
SECTION 12.3 TENANT’S ESTOPPEL CERTIFICATE. Tenant shall, upon the request of Landlord or any Mortgagee of Landlord, without additional consideration, deliver an estoppel certificate, consisting of reasonable statements required by Landlord, any mortgagee or purchaser of any interest in the Property, which statements may include but shall not be limited to the following: this Lease is in full force and effect, with rental paid through the date specified in the certificate; this Lease has not been modified or amended; Tenant is not aware that Landlord is in default or that Landlord has failed to fully perform all of Landlord’s obligations hereunder; and such other statements as may reasonably be required by the requesting party. If Tenant is unable to make any statements contained in the estoppel certificate because the same is untrue, Tenant shall with specificity state the reason why such statement is untrue.
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Tenant’s failure to provide any estoppel certificate within ten (10) days after the request of Landlord or any Mortgagee of Landlord, and the continuation of such failure for a period of five (5) days after the delivery of a second written notice to Tenant requesting same, shall constitute a default by Tenant hereunder.
ARTICLE 13
DEFAULT
SECTION 13.1 DEFAULTS BY TENANT. The occurrence of any of the events described in subsections 13.1.1 through 13.1.3 shall constitute an Event of Default by Tenant under this Lease.
13.1.1 Failure to Pay Rent. Any failure by Tenant to make a payment of Rent to Landlord within ten (10) days after receipt of notice of non-payment.
13.1.2 Failure to Perform Other Obligations. Any failure by Tenant to observe and perform any provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after Landlord gives Tenant written notice of such failure, provided that if such failure by its nature cannot be cured within such thirty (30) day period, Tenant shall not be in default hereunder so long as Tenant commences curative action within such thirty (30) day period, diligently and continuously pursues the curative action and fully cures the failure within a reasonable time after Landlord gives such written notice to Tenant.
13.1.3 Bankruptcy, Insolvency, Etc. Tenant or any Guarantor (i) becomes or is declared insolvent according to any law, (ii) makes a transfer in fraud of creditors according to any applicable law, (iii) assigns or conveys all or a substantial portion of its property for the benefit of creditors or (iv) files a petition for relief, or is the subject of an order for relief, under the Federal Bankruptcy Code or any other present or future federal or state insolvency, bankruptcy or similar law (collectively, “Applicable Bankruptcy Law”) or a receiver or trustee is appointed for Tenant or Guarantor or its property; the interest of Tenant or Guarantor under this Lease is levied on under execution or under other legal process; or any involuntary petition is filed against Tenant or Guarantor under Applicable Bankruptcy Law; provided, however, no action described in this subsection 13.1.3 shall constitute a default by Tenant if Tenant or Guarantor shall vigorously contest the action by appropriate proceedings and shall remove, vacate or terminate the action within sixty (60) days after the date of its inception.
SECTION 13.2 REMEDIES OF LANDLORD.
13.2.1 Termination of Lease. Upon the occurrence of an Event of Default by Tenant hereunder, Landlord may, without judicial process, terminate this Lease by giving written notice thereof to Tenant and, repossess the Premises by process of law. Landlord shall be entitled to recover all loss and damage Landlord may suffer by reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise, including with limitation, accrued Rent to the date of termination and Late Charges, plus (a) interest thereon at the rate established under Section 2.4 above from the date due through the date paid or date of any judgment or award by any court of competent jurisdiction; (b) the unamortized cost of (i) the Construction Allowance, (ii) brokers’ fees and commissions, (iii) attorneys’ fees, (iv) moving allowances, (v) equipment allowances and (vi) any other costs incurred by Landlord in connection with making
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or executing this Lease; (c) the cost of recovering the Premises (including attorneys’ fees and costs of suit); (d) the costs of reletting the Premises (including, without limitation, advertising costs, brokerage fees, leasing commissions, reasonable attorneys’ fees and refurbishing costs and other costs in readying the Premises for a new tenant); (e) the total Rent that Tenant would have been required to pay for the remainder of the Term discounted to present value at a per annum rate equal to the “Prime Rate” as published on the date this Lease is terminated by The Wall Street Journal, Southwest Edition, in its listing of “Money Rates”, minus the then present fair net rental value of the Premises for such period taking into consideration the time required to relet the Premises and the costs to relet the Premises (including broker commissions, concessions and allowances, similarly discounted); and (f) any other sum of money and damages owed by Tenant to Landlord.
13.2.2 Repossession and Re-Entry. Upon the occurrence of an Event of Default by Tenant which remains uncured, Landlord may immediately terminate Tenant’s right of possession of the Premises without terminating this Lease, and, subject to any required judicial process, enter upon the Premises or any part thereof, take absolute possession of the same, expel or remove Tenant and any other person or entity who may be occupying the Premises and change the locks. If Landlord terminates Tenant’s possession of the Premises under this subsection 13.2.2, (i) Landlord shall have no obligation to tender to Tenant a key for new locks installed in the Premises, (ii) Tenant shall have no further right to possession of the Premises, and (iii) Landlord shall have the right to relet the Premises or any part thereof on such terms as Landlord deems advisable, subject to any obligation to mitigate damages imposed by applicable law. Any rent received by Landlord from reletting the Premises or a part thereof shall be applied first, to the payment of any indebtedness other than Rent due hereunder from Tenant to Landlord (in such order as Landlord shall designate), second, to the payment of any cost of such reletting, including, without limitation, refurbishing costs, reasonable attorneys’ fees, advertising costs, brokerage fees and leasing commissions and third, to the payment of Rent due and unpaid hereunder (in such order as Landlord shall designate), and Tenant shall satisfy and pay to Landlord any deficiency upon demand therefor. No such re-entry or taking of possession of the Premises by Landlord shall be construed as an election by Landlord to terminate this Lease unless a written notice of such termination is also given to Tenant pursuant to subsection 13.2.1 above. If Landlord relets the Premises, either before or after the termination of this Lease, all such rentals received from such lease shall be and remain the exclusive property of Landlord. Landlord may, without notice, remove and either dispose of or store, at Tenant’s expense, any property belonging to Tenant that remains in the Premises after Landlord has regained possession thereof. TENANT KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT BROUGHT BY LANDLORD TO RECOVER POSSESSION OF THE PREMISES FOLLOWING LANDLORD’S TERMINATION OF THIS LEASE OR THE RIGHT OF TENANT TO POSSESSION OF THE PREMISES PURSUANT TO THE TERMS OF THIS LEASE AND ON ANY CLAIM FOR DELINQUENT RENT WHICH LANDLORD MAY JOIN IN ITS LAWSUIT TO RECOVER POSSESSION.
13.2.3 Cure of Default. Upon the occurrence of an Event of Default hereunder by Tenant, Landlord may enter upon the Premises and do whatever Tenant is obligated to do under the terms of this Lease and Tenant agrees to reimburse Landlord on demand for any expenses which Landlord may incur in effecting compliance with Tenant’s obligations under this Lease.
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13.2.4 Continuing Obligations. No repossession of or re-entering upon the Premises or any part thereof pursuant to subsection 13.2.2 or 13.2.3 above or otherwise and no reletting of the Premises or any part thereof pursuant to subsection 13.2.2 above shall relieve Tenant or any Guarantor of its liabilities and obligations hereunder, all of which shall survive such repossession or re-entering. In the event of any such repossession of or re-entering upon the Premises or any part thereof by reason of the occurrence of a default, Tenant will continue to pay to Landlord all Rent which is required to be paid by Tenant, provided that all payments of Rent shall be applied by Landlord as a credit against Tenant’s remaining and outstanding obligations under this Lease.
13.2.5 Cumulative Remedies. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy set forth herein or otherwise available to Landlord at law or in equity and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder or now or hereafter existing at law or in equity. In addition to the other remedies provided in this Lease and without limiting the preceding sentence, Landlord shall be entitled, to the extent permitted by applicable law, to injunctive relief in case of the violation, or attempted or threatened violation, of any of the covenants, agreements, conditions or provisions of this Lease, or to a decree compelling performance of any of the covenants, agreements, conditions or provisions of this Lease.
13.2.6 Mitigation of Damages. In connection with Landlord’s pursuit of its remedies following Tenant’s Event of Default, Landlord shall use good faith efforts to attempt to mitigate its damages. For purposes of determining any recovery of rent or damages by Landlord that depends upon what Landlord could collect by using reasonable efforts to relet the Premises, whether the determination is required under subsections 13.2.1 or 13.2.2 or otherwise, it is understood and agreed that:
(a)Landlord may reasonably elect to lease other comparable, available space in the Building, if any, before reletting the Premises.
(b)Landlord may reasonably decline to incur out-of-pocket costs to relet the Premises, other than customary leasing commissions and legal fees for the negotiation of a lease with a new tenant.
(c)Landlord may reasonably decline to relet the Premises at rental rates below then prevailing market rental rates, because of the negative impact lower rental rates would have on the value of the Building and because of the uncertainty of actually receiving from Tenant the greater damages that Landlord would suffer from and after reletting at the lower rates.
(d)Before reletting the Premises to a prospective tenant, Landlord may reasonably require the prospective tenant to demonstrate the same financial wherewithal that Landlord would require as a condition to leasing other space in the Building to prospective tenant.
(e)Identifying a prospective tenant to relet the Premises, negotiating a new lease with such tenant and making the Premises ready for such tenant will take time, depending upon market conditions when the Premises first
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become available for reletting, and during such time no one can reasonably expect Landlord to collect anything from reletting.
SECTION 13.3 DEFAULTS BY LANDLORD. Landlord shall be in default under this Lease if Landlord fails to perform any of its obligations hereunder and such failure continues for a period of thirty (30) days after Tenant gives written notice to Landlord and each mortgagee who has a lien against any portion of the Property and whose name and address has been provided to Tenant stating that (a) Landlord is in breach of this Lease and (b) describing the breach with specificity, provided that if such failure cannot reasonably be cured within such thirty (30) day period, Landlord shall not be in default hereunder if the curative action is commenced within such thirty (30) day period and is thereafter diligently pursued until cured.
SECTION 13.4 LANDLORD’S LIABILITY. If Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the right, title and interest of Landlord in the Property as the same may then be encumbered and the Project’s accounts and leases and Landlord shall not be liable for any deficiency. In no event shall Landlord be liable to Tenant for consequential or special damages by reason of a failure to perform (or a default) by Landlord hereunder or otherwise. In no event shall Tenant have the right to levy execution against any property of Landlord other than its interest in the Property as above provided. Landlord shall not be liable to Tenant for any claims, actions, demands, costs, expenses, damage or liability of any kind which (a) are caused by (i) tenants or any persons either in the Premises or elsewhere in the Building (unless occurring in the Common Areas and caused by Landlord’s negligence), (ii) occupants of property adjacent to the Building or Common Areas, (iii) the public, or (iv) the construction of any private, public or quasi-public work, or (b) are caused by any theft or burglary at the Premises or the Property. Further, Tenant specifically agrees Landlord shall not be liable for any damages or expenses of whatever kind arising out of or caused by a burglary, theft, vandalism, malicious mischief, or other illegal acts perfomed in, at or from the Property unless due to Landlord’s gross negligence or willful misconduct.
ARTICLE 14
NOTICES
Any notice or communication required or permitted in this Lease shall be given in writing, sent by (a) personal delivery (b) expedited delivery service, or (c) United States mail, postage prepaid, registered or certified mail, return receipt requested, each addressed as set forth in the Basic Lease Information or to such other address or to the attention of such other person as shall be designated from time to time in writing by the applicable party and sent in accordance herewith. Any such notice or communication shall be deemed to have been given either at the time of personal delivery or, in the case of delivery service, mail or electronic mail, as of the date of first attempted delivery at the address and in the manner provided herein. Reference is made to Section 13.3 of this Lease for other provisions governing notices.
ARTICLE 15
MISCELLANEOUS PROVISIONS
SECTION 15.1 BUILDING NAME AND ADDRESS. Tenant shall not, without the prior written consent of Landlord, use the name of the Building for any purpose other than as the address of the business to be conducted by Tenant in the Premises and in no event shall Tenant acquire any rights in or
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to such names. Landlord shall have the right at any time to change the name, number or designation by which the Building is known.
SECTION 15.2 SIGNAGE.
15.2.1 Interior Signage. Landlord shall maintain a tenant directory in the main Building lobby, and shall provide Tenant one identification strip in such directory, setting forth Tenant’s name and location. Tenant shall not otherwise inscribe, paint, affix, or display any signs, advertisements or notices on or in the Building or the Premises, except for such tenant identification information approved in advance and in writing by Landlord and installed adjacent to the access door or doors to the Premises. Landlord may withhold approval of any Tenant sign if necessary, in Landlord’s discretion, to preserve aesthetic standards for the Building. All signs permitted hereunder shall constitute Installations and shall be subject to the provisions of subsection 6.3.3, including without limitation Landlord’s rights under such subsection to perform and charge for the work necessary to complete Installations.
15.2.2 Exterior Signage.
(a) Subject to this subsection, Tenant shall have the right (the “Top of Garage Signage Right”) to install an exterior sign of the size and elevation level shown on Exhibit I (the “Top of Garage Signage”). The Top of Garage Signage shall face either 13th Avenue or Demonbreun Street, at Landlord’s election. If the Top of Garage Signage faces Demonbreun Street, it will be located on the corner of the Building under the outdoor terrace. The Top of Garage Signage shall be subject to existing codes. Tenant shall maintain its signage in first class condition, including prompt replacement of burned out lighting elements. Tenant shall be responsible for the costs of installation, maintenance, and removal of such signage. Any damage to the Building or related structure, upon installation, maintenance, or removal of such sign shall be Tenant’s sole responsibility and shall be repaired and restored to Landlord’s specifications, at Tenant’s sole expense. Upon the expiration or earlier termination of this Lease, Tenant will remove all of its signage. Upon removal of its signage, Tenant shall repair Building facade and all other areas affected by such signage to a condition acceptable to Landlord. If during any remodeling, repair, or expansion of the Building, it becomes necessary for Landlord to remove any of Tenant’s signage, or to install scaffolding or other aids for performing such work that obscures Tenant’s signage in whole or part, then Landlord may temporarily do so as long as Landlord replaces such signage as soon as reasonably possible at Landlord's expense. The signage right under this subsection 15.2.2 shall be personal to Tenant and nontransferable except for an Affiliate assignment.
(b) Any time after December 31, 2022, unless Tenant is leasing at least 60,000 rentable square feet in the Building, if a third party tenant has executed a lease for an initial term of at least five (5) years for more space in Building than Tenant, Landlord shall have the ongoing right to terminate the Top of Garage Signage Rights. If Tenant is leasing at least 60,000 rentable square feet, Landlord shall not have the right to terminate the Top of Garage Signage Right pursuant to this subsection.
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(c) On the Commencement Date and on each anniversary thereof as long as the Top of Garage Signage Right is in effect (regardless of whether the Top of Garage Signage is actually installed) Tenant shall pay Landlord the Signage Fee. The “Signage Fee” shall initially be $35,000 and shall increase each year by 2.5%.
15.2.3 All signs permitted under this Section 15.2 shall constitute Installations and shall be subject to the provisions of subsection 6.3.3, including without limitation Landlord’s rights under such subsection to perform and charge for the work necessary to complete Installations.
SECTION 15.3 NO WAIVER. No waiver by Landlord or Tenant of any provision of this Lease shall be deemed to have been made unless such waiver is expressly stated in writing signed by the waiving party. No waiver by Landlord or Tenant of any breach by the other party shall be deemed a waiver of any subsequent breach of the same or any other provision. The failure of Landlord or Tenant to insist at any time upon the strict performance of any covenant or agreement or to exercise any option, right, power or remedy contained in this Lease shall not be construed as a future waiver thereof. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly installment of Rent due under this Lease shall be deemed to be other than on account of the earliest Rent due hereunder, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such Rent or pursue any other remedy which may be available to Landlord.
SECTION 15.4 APPLICABLE LAW. This Lease shall be governed by and construed in accordance with the laws of the State of Tennessee.
SECTION 15.5 COMMON AREAS. “Common Areas” shall mean all areas, spaces, facilities and equipment (whether or not located within the Building) made available by Landlord for the common and joint use of Landlord, Tenant and others designated by Landlord using or occupying space in the Building, including but not limited to, tunnels, walkways, sidewalks and driveways necessary for access to the Building, Building lobbies, the Parking Facilities, landscaped areas, public corridors, public rest rooms, Building stairs, elevators open to the public, service elevators (provided that such service elevators shall be available only for tenants of the Building and others designated by Landlord), drinking fountains and any such other areas and facilities as are designated by Landlord from time to time as Common Areas. “Service Corridors” shall mean all loading docks, loading areas and all corridors that are not open to the public but which are available for use by Tenant and others designated by Landlord. “Service Areas” will refer to areas, spaces, facilities and equipment serving the Building (whether or not located within the Building) but to which Tenant and other occupants of the Building will not have access, including, but not limited to, mechanical, telephone, electrical and similar rooms and air and water refrigeration equipment. Tenant is hereby granted a nonexclusive right to use the Common Areas and Service Corridors during the Term of this Lease for their intended purposes, in common with others designated by Landlord, subject to the terms and conditions of this Lease, including, without limitation, the Rules and Regulations and the Parking Agreement attached hereto as Exhibit F. The Building, Common Areas, Service Corridors and Service Areas will be at all times under the exclusive control, management and operation of Landlord. Landlord reserves the right to license portions of the Common Areas to vendors who provide services to tenants of the Building, including without limitation, vending machines. Tenant agrees and acknowledges that the Premises (whether consisting of less than one floor
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or one or more full floors within the Building) do not include, and Landlord hereby expressly reserves for its sole and exclusive use, any and all mechanical, electrical, telephone and similar rooms, janitor closets, elevator, pipe and other vertical shafts and ducts, flues, stairwells, any area above the acoustical ceiling and any other areas not specifically shown on Exhibit B as being part of the Premises. Freight elevators, hoists and loading dock may be used by Tenant and Tenant’s vendors and contractors at no charge during construction and move in and thereafter during Business Hours. Use of same shall be coordinated through Landlord or its property manager, shall be subject to reasonable rules, and shall be on a non-exclusive and reasonable basis.
SECTION 15.6 SUCCESSORS AND ASSIGNS. Subject to Article 11 hereof, all of the covenants, conditions and provisions of this Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns.
SECTION 15.7 BROKERS. Tenant warrants that it has had no dealings with any real estate broker or agent in connection with the negotiation of this Lease other than Tenant’s Broker and Landlord’s Broker as set forth in the Basic Lease Information, and that it knows of no other real estate brokers or agents who are or claim to be entitled to a commission in connection with this Lease. Tenant agrees to defend, indemnify and hold harmless Landlord from and against any liability or claim, whether meritorious or not, arising with respect to any such broker and/or agent known to Tenant and not so named and claiming to be entitled to a commission by, through or under Tenant. Landlord has agreed to pay the fees of Tenant’s Broker and Landlord’s Broker strictly in accordance with and subject to the terms and conditions of a separate written commission agreement.
SECTION 15.8 SEVERABILITY. If any provision of this Lease or the application thereof to any person or circumstances shall be invalid or unenforceable to any extent, the application of such provisions to other persons or circumstances and the remainder of this Lease shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
SECTION 15.9 EXAMINATION OF LEASE/COUNTERPARTS. Submission by Landlord of this instrument to Tenant for examination or signature does not constitute a reservation of or option for lease. This Lease will be effective as a lease only upon execution by and delivery to both Landlord and Tenant. This Lease may be executed in multiple counterparts, each of which shall be an original, but all of which together shall constitute but one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature process complying with the U.S. federal ESIGN Act of 2000) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. Electronic signatures shall be deemed original signatures for purposes of this Lease and all matters related thereto, with such electronic signatures having the same legal effect as original signatures.
SECTION 15.10 TIME. Time is of the essence in this Lease and in each and all of the provisions hereof. Whenever a period of days is specified in this Lease, such period shall refer to calendar days unless otherwise expressly stated in this Lease. If any date provided under this Lease for performance of an obligation or expiration of a time period is a Saturday, Sunday or a holiday generally recognized by businesses, the obligation shall be performed or the time period shall expire, as the case may be, on the next succeeding business day.
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SECTION 15.11 DEFINED TERMS AND MARGINAL HEADINGS. The words “Landlord” and “Tenant” as used herein shall include the plural as well as singular. If more than one person is named as Tenant, the obligations of such persons are joint and several. The headings and titles to the articles, sections and subsections of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part of this Lease.
SECTION 15.12 AUTHORITY. Landlord and Tenant and each person signing this Lease on behalf of such party represents to the other party as follows: Such party, if a corporation, limited liability company, limited partnership, or partnership is duly formed and validly existing under the laws of the state of its formation and is duly qualified to do business in the State of Tennessee. Tenant has all requisite power and all governmental certificates of authority, licenses, permits, qualifications and other documentation to lease the Premises and to carry on its business as now conducted and as contemplated to be conducted. Each person signing on behalf of Landlord or Tenant is authorized to do so. The foregoing representation in this Section 15.12 shall also apply to any corporation, limited liability company, limited partnership, or partnership which is a general partner or joint venturer of Tenant.
SECTION 15.13 FORCE MAJEURE. Whenever a period of time is herein prescribed for action to be taken by Landlord or Tenant, the party taking the action shall not be liable or responsible for, and there shall be excluded from the computation for any such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, Legal Requirements, pandemic or any other causes which are beyond the reasonable control of such party (each a “Force Majeure Event”); provided, however, in no event shall the foregoing apply to the financial obligations of either Landlord or Tenant to the other under this Lease, including Tenant’s obligation to pay Basic Annual Rent, Additional Rent or any other amount payable to Landlord hereunder (“Rent”). To the extent a party is unable to perform its obligations under this Lease on account of a Force Majeure Event, including but not limited to providing access to the Building or satisfying operating covenants, the performance of such obligations shall be waived and there shall be no reduction in Rent during the continuance of such Force Majeure Event.
SECTION 15.14 NO RECORDING. This Lease shall not be recorded.
SECTION 15.15 PARKING. Exhibit F attached hereto sets forth agreements between Landlord and Tenant relating to parking.
SECTION 15.16 ATTORNEYS’ FEES. In the event of any legal action or proceeding brought by either party against the other arising out of this Lease, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred in such action (including, without limitation, all costs of appeal) and such amount shall be included in any judgment rendered in such proceeding.
SECTION 15.17 SURVIVAL OF INDEMNITIES. Each indemnity agreement and hold harmless agreement contained herein shall survive the expiration or termination of this Lease.
SECTION 15.18 INTENTIONALLY OMITTED.
SECTION 15.19 CONFIDENTIALITY. Tenant and Landlord acknowledge that the terms and conditions of the Lease are to remain confidential for Landlord’s benefit and may not be disclosed by Tenant to anyone, by any manner or means, directly or indirectly, without Landlord’s prior written consent; however, Tenant may disclose the terms and conditions of the Lease if required by any Legal
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Tenant Name: Revance Therapeutics, Inc.
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Building Name: 1222 Demonbreun
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Landlord
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Initials:
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JA
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Tenant
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BB
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44
Requirement, in connection with a dispute between Landlord and Tenant, and to its attorneys, accountants, employees and existing or prospective financial partners provided same are advised by Tenant of the confidential nature of such terms and conditions and agree to maintain the confidentiality thereof (in each case, prior to disclosure). Tenant shall be liable for any disclosures made in violation of this Section by Tenant or by any entity or individual to whom the terms of and conditions of the Lease were disclosed or made available by Tenant. The consent by Landlord to any disclosures shall not be deemed to be a waiver on the part of Landlord of any prohibition against any future disclosure.
SECTION 15.20 DIGITAL RECORDS. This Lease is hereby further amended to provide that Landlord and Tenant agree to accept a digital image of this Lease, as executed, as a true and correct original and admissible for the purposes of state law, Federal Rule of Evidence 1002, and like statutes and regulations.
SECTION 15.21 INTENTIONALLY OMITTED.
SECTION 15.22 INTENTIONALLY OMITTED.
SECTION 15.23 DISCLAIMER OF WARRANTIES. Landlord and Tenant expressly disclaim any implied warranty that the Premises are suitable for Tenant’s intended commercial purpose, and Tenant’s obligation to pay Rent under this Lease is not dependent upon the condition of the Premises or the performance by Landlord of its obligations under this Lease, and, except as otherwise expressly provided in this Lease, Tenant shall continue to pay the Rent, without abatement, setoff, deduction, notwithstanding any breach by Landlord of its duties or obligations under this ease, whether express or implied.
SECTION 15.24 OFAC. Landlord and Tenant hereby represent and warrant to the other that they are not (i) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”); (ii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons.”
SECTION 15.25 FINANCIAL STATEMENTS AND CREDIT REPORTS. At Landlord’s request from time to time, Tenant shall deliver to Landlord a copy, certified by an officer of Tenant as being a true and correct copy, of Tenant’s most recent audited financial statement, or, if unaudited, certified by Tenant’s chief financial officer as being true, complete and correct in all material respects. Tenant hereby authorizes Landlord to obtain one or more credit reports on Tenant at any time, and shall execute such further authorizations as Landlord may reasonably require in order to obtain a credit report.
SECTION 15.26 ENTIRE AGREEMENT. This Lease contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose. No provision of this Lease may be amended or supplemented except by an agreement in writing signed by the parties hereto or their respective successors in interest.
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Tenant Name: Revance Therapeutics, Inc.
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Building Name: 1222 Demonbreun
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Landlord
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Initials:
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JA
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Tenant
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BB
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45
SECTION 15.27 No Light, Air or View Easement. This Lease does not create, nor shall Tenant have, any easement, express or implied, or any other right for light, air or view to or from the Premises. Any reduction or blockage of light, air or view by any structure which may be erected after the Date of Lease shall in no way effect this Lease, the obligations of Tenant hereunder or impose any additional liability on Landlord.
SECTION 15.28 TENANT REQUIREMENTS FOR LEED. Tenant shall not use or operate the Premises in any manner that will cause the Project or any part thereof not to conform with Landlord’s sustainability practices or the certification of the Project issued pursuant to the U.S. Green Building Council’s Leadership in Energy and Environmental Design (“LEED”) rating system standards attached as Exhibit H to this Lease. Tenant shall reasonably cooperate with Landlord to comply with future or ongoing LEED requirements including achieving “LEED - existing building” certification or other recognized sustainability certifications or standards, including implementing reasonable sustainability measures for the Project that Landlord deems consistent with Class A multi-story office buildings of the same age and quality in the Nashville downtown and “South Gulch” submarket.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Lease effective as of the Date of Lease set forth in the Basic Lease Information.
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LANDLORD:
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1222 DEMONBREUN, LP, a Texas limited partnership
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By:
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/s/ Jamil Alam
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Name:
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Jamil Alam
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Title:
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EVP
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TENANT:
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REVANCE THERAPEUTICS, INC., a Delaware corporation
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By:
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/s/ Mark J. Foley
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Name:
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Mark J. Foley
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Title:
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President and Chief Executive Officer
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Tenant Name: Revance Therapeutics, Inc.
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Building Name: 1222 Demonbreun
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Landlord
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Initials:
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JA
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Tenant
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BB
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46
Addendum #1
LETTER OF CREDIT
A. Within fifteen (15) days of execution of this Lease, Tenant shall deliver to Landlord a letter of credit the issuer of which shall have the offices in the continental United States, in the amount of $2,200,000 (the “LC Amount”). Such letter of credit, together with any additional letters of credit required herein, and any renewals or replacements thereof (collectively, the “Letter of Credit”) shall be clean, unconditional, irrevocable, transferable, and in the form attached as Appendix 1.
B. Tenant shall keep the Letter of Credit in full force and effect at all times during the Term and for thirty (30) days after the expiration of the Term. The initial Letter of Credit shall expire no sooner than twelve (12) months from the date thereof. The Letter of Credit must be satisfactorily renewed or replaced with replacement letters of credit meeting all of the above requirements except that the expiration date shall be no less than twelve (12) months from the date of issuance. Such renewal or replacement letters of credit must be in Landlord’s possession no later than thirty (30) days prior to the expiration of the then current letter of credit. Tenant shall be responsible for obtaining such renewal or replacement Letter of Credit at its sole expense. Failure to renew the Letter of Credit in accordance with the foregoing will entitle Landlord to present the Letter of Credit for payment, without providing Tenant any notice or opportunity to cure, and the entire sum drawn thereunder shall be held by Landlord as provided in subsection G, below.
C. Tenant understands that Landlord is relying upon the financial condition of the issuer of the Letter of Credit, as a primary inducement to Landlord to lease the Premises to Tenant. In the event Moody’s rating on the issuer’s long term senior debt becomes less than Baa2 while the Letter of Credit is outstanding, Landlord may notify Tenant of such fact, and Tenant shall have five (5) days from the date of such notice within which to either (i) secure the Letter of Credit with additional collateral acceptable to Landlord in its sole discretion; (ii) provide a substitute letter of credit in the same form as the Letter of Credit but issued by a banking institution reasonably satisfactory to Landlord having its senior long term debt rated at least Baa2 by Moody’s or equivalent rating service; or (iii) have the Letter of Credit confirmed by a banking institution reasonably satisfactory to Landlord having its senior long term debt rated at least Baa2 by Moody’s or equivalent rating service. Failure to do one of the foregoing within such time shall constitute a default under this Lease and shall entitle Landlord to present the Letter of Credit for payment if the default ripens into an Event of Default, and the entire sum drawn thereunder shall be held by Landlord as provided in subsection G, below.
D. In the event of a transfer of Landlord’s interest in the Building, Landlord shall have the right to transfer the Letter of Credit to the transferee and thereupon Landlord shall, without any further agreement between the parties, be released by Tenant from all liability therefor, and it is agreed that the provisions hereof shall apply to every transfer or assignment of said Letter of Credit to a new landlord. Should the issuer of the Letter of Credit impose a transfer fee in connection with the change of the beneficiary under the Letter of Credit, Landlord shall pay up to $1,000 of such fee and Tenant shall pay any amount in excess of $1,000. Tenant shall fund such amount within ten (10) days of demand by Landlord and the failure to do so shall be deemed an Event of Default under Section 13.1.1 of the Lease without benefit of further notice and cure.
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Tenant Name: Revance Therapeutics, Inc.
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Building Name: 1222 Demonbreun
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Landlord
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Initials:
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JA
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Tenant
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BB
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1
E. Tenant covenants that it will not assign or encumber the Letter of Credit or any part thereof and that neither Landlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance.
F. Should an Event of Default by Tenant occur and remain uncured under this Lease, in addition to any or all of its other remedies contained in this Lease, Landlord shall have the right (but not the obligation) to present the Letter of Credit for payment and to draw thereon, in whole or in part. In the event of any such draw, Tenant shall forthwith provide Landlord with an additional letter of credit in an amount sufficient to restore the aggregate amounts of the Letter(s) of Credit held by Landlord to the LC Amount.
G. Landlord may use or apply the whole or any part of the amounts drawn on the Letter of Credit (the “Proceeds”) for the payment of Tenant’s obligations under this Lease. Any Proceeds not otherwise applied to amounts then due Landlord shall serve as security provided by a third party for the prompt, full, and faithful performance by Tenant of the terms and provisions of this Lease. Tenant’s obligation to furnish the Letter of Credit and any use, application or retention by Landlord of all or any part of the Proceeds shall not be deemed in any way to constitute liquidated damages for any default by Tenant, or to limit the remedies to which Landlord is otherwise entitled under the terms of this Lease. In the event the Proceeds are reduced below the LC Amount by such use or application, Tenant shall deposit with Landlord, within ten (10) days after notice, an amount sufficient to restore the amount of the Proceeds to the LC Amount. Landlord shall not be required to keep the Proceeds separate from Landlord’s general funds or pay interest on the Proceeds. Provided Tenant has performed all of its obligations under this Lease, any remaining portion of the Proceeds shall be returned to Tenant within thirty (30) days subsequent to the expiration date of the term of this Lease. No trust or fiduciary relationship is created herein between Landlord and Tenant with respect to the Proceeds. If Landlord transfers the Premises during the Term of this Lease, Landlord may pay the Proceeds to Landlord’s successor-in-interest, in which event the transferring Landlord shall be released from all liability for the return of the Proceeds.
H. Commencing on the later to occur of (1) the date the FDA approves daxibotulinumtoxinA for Injection (DAXI), and (2) the first day of Month 31 following the Commencement Date (the “Reduction Date”), the LC Amount shall be reduced by $275,000 on the Reduction Date and each anniversary of the Reduction Date thereafter for the remainder of the Term; provided however, no such reduction in the LC Amount shall occur at any time when Tenant has failed to perform any of its obligations under the under the Lease, regardless of whether any applicable notice or cure periods have expired.
I. Landlord shall return the Letter of Credit to Tenant within thirty (30) days following the expiration of the term of this Lease; provided however, no such release shall occur at any time when Tenant has failed to perform any of its obligations under the under this Lease, regardless of whether any applicable notice or cure periods have expired.
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Tenant Name: Revance Therapeutics, Inc.
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Building Name: 1222 Demonbreun
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Landlord
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Initials:
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JA
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Tenant
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BB
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2
APPENDIX 1
RREVOCABLE STANDBY LETTER OF CREDIT
LETTER OF CREDIT NO.:
DATE: , 20__
ISSUING BANK:
ADDRESS:
FACSIMILE NO.:
EXPIRATION DATE: , 20__, AT OUR COUNTERS
AMOUNT: US DOLLARS ($ )
BENEFICIARY:
ADDRESS:
FACSIMILE NO.:
WE HEREBY ESTABLISH IN YOUR FAVOR OUR IRREVOCABLE LETTER OF CREDIT NO. IN THE AMOUNT OF US DOLLARS ($ ) FOR THE ACCOUNT OF [TENANT]. DRAW(S) UP TO THE MAXIMUM AGGREGATE AMOUNT AVAILABLE UNDER THIS LETTER OF CREDIT, ARE PAYABLE BY US WITHIN TWO BUSINESS DAYS AFTER OUR RECEIPT ON OR PRIOR TO OUR CLOSE OF BUSINESS ON THE EXPIRATION DATE, OF ONE OR MORE DRAW STATEMENTS PURPORTEDLY SIGNED BY YOUR AUTHORIZED OFFICER OR REPRESENTATIVE OR, IF THIS LETTER OF CREDIT IS TRANSFERRED, BY AN AUTHORIZED OFFICER OR REPRESENTATIVE OF ANY TRANSFEREE BENEFICIARY. EACH DRAW STATEMENT SHOULD BE ADDRESSED TO US, REFERENCE THIS LETTER OF CREDIT BY NUMBER, SPECIFY THE AMOUNT OF THE DRAW REQUEST, SET FORTH WIRE TRANSFER INSTRUCTIONS AND CONTAIN, IN SUBSTANCE, THE FOLLOWING STATEMENT (WITH THE AMOUNT OF THE DRAW REQUEST AND WIRE TRANSFER INSTRUCTIONS COMPLETED): “BENEFICIARY HEREBY DRAWS ON LETTER OF CREDIT NO. IN THE AMOUNT OF $______________. FUNDS IN RESPECT OF THIS DRAW REQUEST SHOULD BE WIRE TRANSFERRED TO ___________ BANK, ROUTING NO. __________, ACCOUNT NO. ____________ FOR CREDIT TO THE ACCOUNT OF ____________________________.” NO FURTHER INFORMATION SHALL BE REQUIRED ON SUCH DEMAND.
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Tenant Name: Revance Therapeutics, Inc.
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Building Name: 1222 Demonbreun
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Landlord
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Initials:
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JA
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Tenant
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BB
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3
THIS LETTER OF CREDIT SHALL INITIALLY EXPIRE ON , 20___. SUCH EXPIRATION DATE SHALL BE AUTOMATICALLY EXTENDED WITHOUT NOTICE OR AMENDMENT FOR PERIODS OF ONE (1) YEAR, BUT IN NO EVENT LATER THAN , 20___, UNLESS AT LEAST SIXTY (60) DAYS BEFORE ANY EXPIRATION DATE, WE NOTIFY YOU BY REGISTERED MAIL OR OVERNIGHT COURIER SERVICE AT YOUR ADDRESS ABOVE (OR ANY OTHER ADDRESS OF WHICH YOU PROVIDE US NOTICE AT OUR ADDRESS SET FORTH ABOVE), THAT THIS LETTER OF CREDIT IS NOT EXTENDED BEYOND THE CURRENT EXPIRATION DATE. UPON RECEIPT BY YOU OF SUCH NOTIFICATION, YOU MAY DRAW ON THIS LETTER OF CREDIT AS SET FORTH ABOVE, PROVIDED THAT THE AMOUNT OF YOUR DRAW SHALL NOT EXCEED THE TOTAL AMOUNT AVAILABLE FOR PAYMENT HEREUNDER.
DRAW REQUESTS NEED NOT BE PRESENTED AS ORIGINALS AND MAY BE SUBMITTED IN PERSON, BY COURIER, BY MAIL OR BY FACSIMILE TO OUR ADDRESS OR FACSIMILE NUMBER STATED ABOVE AND THE ORIGINAL LETTER OF CREDIT NEED NOT BE PRESENTED AT OUR OFFICES AS A CONDITION OF FUNDING A DRAW REQUEST.
THIS LETTER OF CREDIT IS TRANSFERABLE ONE OR MORE TIMES IN WHOLE BUT NOT IN PART UPON OUR RECEIPT OF A TRANSFER REQUEST IN THE FORM ATTACHED AS EXHIBIT A, SIGNED BY THE THEN CURRENT BENEFICIARY. THE CHARGE FOR EACH TRANSFER IS LIMITED TO 0.25% OF THE THEN CURRENT AMOUNT AVAILABLE FOR DRAW UNDER THIS LETTER OF CREDIT.
THIS LETTER OF CREDIT IS GOVERNED BY THE INTERNATIONAL STANDBY PRACTICES 1998 (ICC PUBLICATION NO. 590), EXCEPT TO THE EXTENT THE SAME WOULD BE INCONSISTENT WITH THE EXPRESS PROVISIONS HEREOF. WE HEREBY WAIVE AND DISCLAIM RIGHTS OF SUBROGATION IN RESPECT OF ANY DRAW MADE BY YOU, WHETHER ARISING UNDER THE UNIFORM COMMERCIAL CODE OR OTHERWISE.
AUTHORIZED OFFICER
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Tenant Name: Revance Therapeutics, Inc.
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Building Name: 1222 Demonbreun
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Landlord
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Initials:
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JA
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Tenant
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BB
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4
EXHIBIT A
Transfer Form
[ISSUER TO ATTACH ISSUER’S STANDARD TRANSFER FORM]
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Tenant Name: Revance Therapeutics, Inc.
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Building Name: 1222 Demonbreun
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Landlord
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Initials:
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JA
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Tenant
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BB
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5
Addendum #2
TEMPORARY PREMISES
Commencing on the later of (a) completion of the Temporary Premises; and (b) the date of this Lease (the “Temporary Occupancy Date”), Landlord shall allow Tenant to occupy Suite 1001 of the Building containing 6,788 rentable square feet (the “Temporary Space”) until the Commencement Date. Such occupancy shall be upon all of the terms and conditions of this Lease, except for the following:
1. Commencing on the earlier to occur of the earlier to occur of (a) the date Landlord delivers the Premises; and (b) one hundred eighty (180) days after the Temporary Occupancy Date, Tenant shall be required to pay Basic Rent in the amount of $18,949.83 per month ($33.50 per annum per rentable square foot in the Temporary Premises), plus Tenant’s Temporary Share of Operating Expenses and Taxes. “Tenant’s Temporary Share” means 2.05%, which is the percentage obtained by dividing (a) the 6,788 rentable square feet in the Temporary Premises) by (b) the 330,475 rentable square feet in the Project.
2. Tenant shall occupy the Temporary Premises on an “as is where is” basis. Tenant shall not have the right to make any alterations to the Temporary Premises. Tenant shall have the right to run phone lines and cabling to the minimum extent necessary for Tenant to operate for business in the Temporary Premises. No penetrations shall be permitted, except as may be required by code.
3. Landlord may relocate Tenant to other space in the Building if Landlord has opportunity to lease the Temporary Premises to another tenant.
4. Tenant to provide furniture at its own cost for temporary space and to remove prior to surrender. Tenant may establish internet and other services as needed to provide for use of the temporary space.
5. Tenant shall surrender the Temporary Premises no later than the Commencement Date. In the event Tenant fails to do so, the same shall constitute a default and in addition to any other remedies to which Landlord may be entitled, Tenant shall pay holdover rent thereon calculated as set forth in Section 1.4.
6. Subject to Exhibit F Tenant shall license 2.76 parking access cards/1,000 square feet of Temporary Premises Rentable Area, consisting of the following:
16 Unreserved
2 Reserved
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Tenant Name: Revance Therapeutics, Inc.
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Building Name: 1222 Demonbreun
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Landlord
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Initials:
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JA
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Tenant
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BB
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