a1600westendavepartnersl






EXECUTION VERSION  OFFICE LEASE AGREEMENT  between  1600 West End Avenue Partners, LLC,  a Tennessee limited liability company  Landlord  and  Cumberland Pharmaceuticals, Inc.  a Tennessee corporation  Tenant  November 15, 2021  Effective Date:  Landlord:  Tenant:  Leased Premises and  Floors:  Right of First Offer:  Areas of the Leased  Premises (subject to the  provisions of Section 1.2):  Rentable Area of the  Building (subject to the  provisions of Section  1.2):  OFFICE LEASE SUMMARY  ("Lease Summruy")  Lease Execution date  1600 West End A venue Partners, LLC,  a Tennessee limited liability company  Cumberland Pharmaceuticals Inc.,  a Tennessee corporation  16,631 rentable square feet of space on the thirteenth floor of the  Building (the "Office Space") to be approved by Landlord after  review of final space plan.  As set forth in Addendum 1 attached to this Lease.  Portion Approximate Approximate  Usable Area Rentable Area  Office Space 13,958 16,631  square feet square feet  Totals (approx.) 13,958 16,631  square feet square feet  Approximately 528,607 square feet. Exhibits F and the Leased  Premises floor numbers are subject to the approximate size set  forth herein  Common Area Factor 19 .15%% per the final BOMA measurements  (subject to the provisions  of Section 1.2):  Tenant's Percentage  Share:  EXECUTION VERSION  The percentage calculated by dividing the Leased Premises  Rentable Area by the Building Rentable Area and multiplying the  quotient by 100. If either the Leased Premises Rentable Area or  the Building Rentable Area changes based on any provision of this  Lease, Tenant's Percentage Share shall be recalculated by using  the foregoing formula.  Initial Term:  Renewal Options:  Delivery Date:  One hundred fifty-seven (157) months, plus the period from the  Commencement Date through the end of the calendar month in  which the Commencement Date occurs if the Commencement  Date is not the first day of a calendar month, if applicable.  Two (2) consecutive options to renew for a period of five (5) years  each, subject to the terms of this Lease.  As of the Commencement Date, the Leased Premises is in a  condition ready for Tenant to begin construction of the Tenant  Improvements (in accordance with and as defined in Exhibit F  attached hereto). If Landlord fails to deliver the other portions of  the Project (i.e. the adjacent hotel and residential condominiums  and Project Plaza) by May 1, 2022 (such date subject to Force  Majeure as provided for in this Lease), Tenant shall have the right  on thirty (30) days ' notice to Landlord to terminate the Lease.  Commencement Date: The earlier of November 1, 2022 OR the date which Tenant takes  occupancy of the Leased Premises OR the date which Tenant  receives a temporary or permanent certificate of occupancy for the  Leased Premises.  Expiration Date:  Lease Year:  Building Amenities:  * Base Rental:  The date that is the last day of the one hundred fifty-fourth (157th)  full calendar month after, as applicable, either (a) the day  immediately preceding the Commencement Date if the  Commencement Date is the first day of a calendar month, or (b)  the Commencement Date if the Commencement Date is not the  first day of a calendar month.  Each successive period of 12 consecutive full calendar months of  the Term commencing at the expiration of the Free Rent Period  (as defined in Section 3.l(D) below).  Garage, Fitness center and Project Plaza for use by all, retail space  and adjacent hotel and residential condominium.  Annual  Annual Monthly  Base Rent  Initial Term Rental Per  Lease Year Square  Foot of Base Rental Base Rental  Ren table  Area  Free Rent Period  (3 months} $33.06 $0 $0  3  EXECUTION VERSION  Permitted Use:  Parking Spaces:  EXECUTION VERSION  Months 4-12 $33.06 $549,820.86 $45,818.41  Year 2 $33.89 $563,566.38 $46,963.87  Year 3 $34.73 $577,655.54 $48,137.96  Free Rent Period  (1 month) $35.60 $0 $0  Year 4 (11  months) $35.60 $592,096.93 $49,341.41  Year 5 $36.49 $606,899.35 $50,574.95  Year 6 $37.40 $622,071.84 $51,839.32  Year 7 $38.34 $637,623.63 $53,135.30  Year 8 $39.30 $653,564.22 $54,463.69  Year9 $40.28 $669,903.33 $55,825.28  Year 10 $41.29 $686,650.91 $57,220.91  Year 11 $42.32 $703,817.18 $58,651.43  Year 12 $43.38 $721,412.61 $60,117.72  Year 13 $44.46 $739,447.93 $61,620.66  Month 157 $45.57 $757,934.13 $63,161.18  *For purposes of the foregoing schedule of Base Rental, months  refer to full calendar months occurring during the Initial Term, and  if the Commencement Date is not the first day of a calendar  month, Base Rental for the period from the Commencement Date  through the last day of the calendar month during which the  Commencement Date occurs shall be determined on the basis of a  proration of the amount of the Base Rental specified above for the  first (1st) full calendar month of the Initial Term. Base Rental  shall increase each Lease Year pursuant to the provisions of  Section 3 .1.  Office Space dedicated to general corporate office use for Tenant's  business, all consistent with a first-class, "Class A" office  building.  Not less than 3.2 non-reserved parking spaces (or such greater  amount as required by applicable laws and regulations) in the  Garage for each 1,000 square feet of the Rentable Area of the  Leased Premises (the "Base Allocation") for Tenant's employees,  and within this Base Allocation, Tenant may reserve parking  spaces up to three (3) parking spaces in the Garage for Tenant's  employees subject to availability. The number of parking spaces  and allocation shall be at Tenant's option within these limits.  Standard valet parking at the Building will be available during  normal business hours.  4  





 






Tenant Improvement  Allowance:  EXECUTION VERSION  An amount equal to $62.00 per square foot of the Rentable Area  of the Office Space (defined below), which amount includes not  only construction costs, low voltage cabling, signage and  construction management fees to be paid to construction manager  engaged by Tenant to represent Tenant, which shall be selected by  Tenant in Tenant's sole but reasonable discretion but approved by  Landlord. $0.20 is not part of the Tenant Improvement Allowance  but shall be paid separately by the Landlord and shall be used for  a test-fit to be performed by an architect of Tenant's choice and  shall be paid to Tenant regardless of whether this Lease is  executed by Landlord and Tenant so long as the Tenant  commissions a space plan with the architect. Landlord shall  provide Tenant an additional Tenant Improvement Allowance of  $423,880.40.00 (and collectively with the $62.00 per square foot  allowance, the "Tenant Improvement Allowance") for a total  allowance of $1 ,455,002.40.  5  Tenant's Address for  Notices:  Landlord's Address for  Notices:  Tenant's Brokers  and Addresses:  EXECUTION VERSION  Prior to Commencement Date:  Cumberland Pharmaceuticals, Inc.  Attn: Mr. A.J. Kazimi  2525 West End Avenue  Suite 950  Nashville, TN 3 7203  With a copy to:  Adams and Reese LLP  Attn: Fred Russell Harwell  424 Church Street  Suite 2700  Nashville, TN 37219  After Commencement Date:  Cumberland Pharmaceuticals, Inc.  Attn: Mr. A.J. Kazimi  1600 West End A venue  Suite 1300  Nashville, TN 37203  With a copy to:  Adams and Reese LLP  Attn: Fred Russell Harwell  424 Church Street  Suite 2700  Nashville, TN 37219  1600 West End A venue Partners, LLC  c/o Propst Development, LLC  305 Church Street, Suite 715  Huntsville, Alabama 35801  Attention: Chris Brown  None  6  Landlord's Broker  and its Address:  Security Deposit:  EXECUTION VERSION  Jones Lang LaSalle  1801 West End Avenue, Suite 1200  Nashville, Tennessee 37203  Attention: Bill Adair  $ $46,963.87. The deposit includes one month's Base Rent.  7  TABLE OF CONTENTS  Article I. LEASE SUMMARY; LEASED PREMISES AND PROJECT AREA .................. 11  Section 1.1 LEASE SUMMARY ................................................................................ 11  Section 1.2 LEASED PREMISES AND PROJECT AREA .................................... 11  Article II. TERM .......................................................................................................................... 12  Section 2.1 INITIAL TERM ....................................................................................... 12  Section 2.2 RENEWAL OPTION .............................................................................. 13  Section 2.3 SURRENDER ........................................................................................... 15  Section 2.4 HOLDING OVER .................................................................................... 15  Section 2.5 SURVIV AL ............................................................................................... 16  Article III. RENT .......•...•............................................................................................................. 16  Section 3.1 BASE RENTAL AND RENT PAYMENTS, GENERALLY ............... 16  Section 3.2 OPERA TING EXPENSES ...................................................................... 17  Section 3.3 SECURITY DEPOSIT ........................................................................... 25  Article IV. TENANT'S USE AND PROJECT SERVICES ..................................................... 26  Section 4.1 TENANT'S USE ....................................................................................... 26  Section 4.2 NO NUISANCE AND NO VIOLATIONS OF INSURANCE  COVERAGE ............................................................................................ 26  Section 4.3 LEGAL REQUIREMENTS; RULES OF THE PROJECT ................ 26  Section 4.4 SERVICES TO BE FURNISHED BY LANDLORD ........................... 28  Section 4.5 KEYS AND LOCKS ................................................................................ 31  Section 4.6 TELECOMMUNICATIONS .................................................................. 31  Section 4. 7 PARKING ................................................................................................. 34  Section 4.8 PEACEFUL ENJOYMENT ................................................................... 36  Section 4.9 RIGHTS RESERVED BY LANDLORD ............................................... 36  Section 4.10 NAME OF BUILDING AND PROJECT .............................................. 37  Article V. IMPROVEMENTS, MAINTENANCE AND REPAIR, ALTERATIONS, AND  SIGNAGE ......................................................................................................................... 37  Section 5.1 INITIAL LEASEHOLD IMPROVEMENTS ....................................... 37  Section 5.2 MAINTENANCE, REP AIRS AND REPLACEMENT BY  LANDLORD ............................................................................................. 37  Section 5.3 DAMAGE TO PROJECT ....................................................................... 38  Section 5.4 AL TERA TIO NS, ADDITIONS, AND IMPROVEMENTS ................ 38  Article VI. INSURANCE, CASUALTY AND CONDEMNATION ........................................ 42  Section 6.1 INSURANCE REQUIREMENTS ......................................................... .42  Section 6.2 HOLD HARMLESS ................................................................................ 44  Section 6.3 WAIVER OF SUBROGATION RIGHTS ............................................ 44  Section 6.4 DAMAGES FROM CERTAIN CAUSES .............................................. 45  8  EXECUTION VERSION  





 






Section 6.5 CASUALTY .............................................................................................. 45  Section 6.6 CONDEMNATION ................................................................................. 46  Article VII. ASSIGNMENT AND SUBLETTING ................................................................... 48  Section 7.1 ASSIGNMENT AND SUBLETTING BY TENANT ........................... .48  Section 7.2 ASSIGNMENTS BY LANDLORD ........................................................ 52  Article VIII. DEFAULT AND REMEDIES .............................................................................. 52  Section 8.1 DEF AULT BY TENANT ........................................................................ 52  Section 8.2 RESERVED .............................................................................................. 55  Section 8.3 INSOLVENCY OR BANKRUPTCY ..................................................... 55  Section 8.4 LANDLORD DEFAULT ......................................................................... 56  Section 8.5 MORTGAGEE PROTECTION ............................................................. 56  Section 8.6 LIABILITY LIMITATION .................................................................... 57  Article IX. MISCELLANEOUS ................................................................................................. 58  Section 9.1 SUBORDINATION, NON-DISTURBANCE AND  ATTO RNMENT ...................................................................................... 58  Section 9.2 ESTOPPEL CERTIFICATES ................................................................ 59  Section 9.3 SECURITY ............................................................................................... 60  Section 9.4 PARTY APPROVALS ............................................................................ 60  Section 9.5 SEVERABILITY; USURY SAVINGS CLAUSE ................................. 60  Section 9.6 NON-WAIVER ........................................................................................ 60  Section 9. 7 NOTICES .................................................................................................. 61  Section 9.8 SUCCESSORS ......................................................................................... 61  Section 9.9 EXHIBITS; ENTIRETY; CONSTRUCTION ...................................... 61  Section 9.10 FINANCIAL STATEMENTS ................................................................. 62  Section 9.11 CONFIDENTIALITY ............................................................................. 62  Section 9.12 FORCE MAJEURE ................................................................................. 62  Section 9.13 AMENDMENTS ...................................................................................... 62  Section 9.14 BROKERS ................................................................................................ 62  Section 9.15 PA TRI OT ACT ........................................................................................ 63  Section 9.16 WAIVER OF JURY TRIAL; COUNTERCLAIMS ............................ 63  Section 9.17 NO RECORDING AND NON-DISCLOSURE ..................................... 64  Section 9.18 TIME ......................................................................................................... 64  Section 9.19 NO RELATIONSHIP OTHER THAN LANDLORD AND  TENANT ................................................................................................... 64  Section 9.20 GOVERNING LAW; ATTORNEY FEES ............................................ 64  Section 9.21 COUNTERPARTS .................................................................................. 64  Section 9.22 NO RESERVATION OR OPTION ....................................................... 65  Addendum and Exhibits:  Addendum 1 (Right of First Offer)......................... ... .. ................... .............. .. ...... ...... 67  Exhibit A (Description of Land).......................... . ......................... ......... .... .. ...... . ....... 69  Exhibit B-1 (Premises Floor Plans and Drawings).......................................................... 70  9  EXECUTION VERSION  Exhibit B-2 (Building Amenities Floor Plan)........... .. .................................................... 71  Exhibit C (Form of Commencement Certificate)...... .. .. .. ..... .. .. ... .. ... .. .... .. ... .. .. . ... ....... ..... 72  Exhibit D (Express Non-Permitted Uses)...................................................................... 74  Exhibit E (Project Rules)......................................................................................... 76  Exhibit F (Work Letter).................................................... ....... . ... .. ... ... ... . ... ...... ....... 80  Exhibit F-1 (Base Building Condition)......................................................................... 97  10  EXECUTION VERSION  OFFICE LEASE AGREEMENT  THIS OFFICE LEASE AGREEMENT (as it may be amended and/or supplemented from  time to time, this "Lease") is made and entered into as of the Effective Date by and between- (i) 1600 West End Avenue Partners, LLC, a Tennessee limited liability company  (together with its successors and assigns, "Landlord"); and  (ii) Cumberland Pharmaceuticals Inc., a Tennessee corporation (together with any  permitted successors and permitted assigns, "Tenant").  In consideration of the duties, covenants and obligations of each party under this Lease,  Landlord and Tenant hereby agree as follows:  ARTICLE I.  LEASE SUMMARY; LEASED PREMISES AND PROJECT AREA  Section 1.1 LEASE SUMMARY. The foregoing Lease Summary comprises an integral  part of the Lease. Unless the context otherwise requires, the terms set forth in the Lease Summary  shall have the meanings given them therein and shall be governed and construed in accordance  with the terms of the Lease.  Section 1.2 LEASED PREMISES AND PROJECT AREA. Subject to and upon the  terms, provisions and conditions hereinafter set forth, Landlord does hereby lease to Tenant and  Tenant does hereby lease from Landlord those certain premises more particularly described in the  Lease Summary and below (the "Leased Premises" or "Premises") in the building to be known as  "BroadWest" (the "Building") in Nashville, Tennessee, and to be constructed on the land (the  "Land") described on Exhibit A attached hereto which is part of the development known as  "BroadWest" which consists of two office buildings, parking garage, hotel and residential  condominium (collectively, the "Project Facilities") (the Building, the Land, the Garage (defined  below), and all additional improvements and additional facilities now or hereafter located on the  Land that serve the Building or the tenants of the Building, collectively, the "Project"). "Garage"  means the Building's parking garage within the Project designated by Landlord for use by tenants  and visitors of the Building.  The Leased Premises is described as follows:  (i) A portion of floor 13 of the Building, consisting of approximately  the amount of square feet of Rentable Area set forth in the Lease Summary, floor plans of which  are attached hereto as Exhibit B-1 (collectively, the "Office Space");  (ii) Landlord agrees that the Building Amenities shall be oriented in the  Building and have the access points as reflected in the drawing(s) or rendering(s) attached hereto  as Exhibit B-2.  B. The parties mutually agree that the Rentable Area and Usable Area of the  Leased Premises for all purposes of this Lease shall be the quantity of square footage so designated  in the Lease Summary as determined by the Landlord's architect in accordance with the definitions  11  EXECUTION VERSION  set forth below and with ANSI/BOMA standard Z65. l - 2017 for measuring floor area in office  buildings and using applicable common area factor(s) for single-tenant floors and multi-tenant  floors (collectively, the "Applicable BOMA Standard"). Tenant, at Tenant's sole cost, shall be  allowed to have its architect, engineer or other consultant review and confirm accuracy of such  remeasurement. The terms "Rentable Area'', "Service Areas", "General Common Areas",  "Common Areas", and "Useable Area" shall have the meaning given them in the Applicable  BOMA Standard. Unless the Rentable Area or Usable Area of the Leased Premises is contested  by the Tenant's architect, engineer or consultant, such Rentable Area and Usable Area of the  Leased Premises shall be memorialized in the Commencement Certificate (defined below).  Notwithstanding the foregoing, except as set forth in the next sentence, Tenant shall have no right  to an adjustment to the Rentable Area or Usable Area of the Leased Premises at any time after the  date that is sixty ( 60) days after substantial completion of the tenant improvements to the Leased  Premises. If the Leased Premises shall thereafter be enlarged or reduced by agreement of Landlord  and Tenant, or ifthe Base Building areas shall be expanded by Landlord so as to include additional  square footage, then the Landlord shall have its architect or engineer remeasure any such affected  spaces using the Applicable BOMA Standard and all such areas and matters determined based on  such measurements shall be correspondingly adjusted based on such remeasurement; provided,  however, that in the event such remeasurement is solely due to the expansion of the Base Building  areas by the Landlord, in no event shall the Rentable Area be increased as a result of such re­ measurement.  ARTICLE II.  TERM  Section 2.1 INITIAL TERM.  A. Subject to and upon the terms and conditions set forth in this Lease, the term  of this Lease (the "Initial Tenn" and together with one or more Renewal Terms (defined below), if  any, the "Term") shall commence on the Commencement Date and shall expire at 5:00 p.m. (local  Nashville time) on the Expiration Date. The Initial Term of this Lease may be renewed and  extended pursuant to Section 2.2 of this Lease. Notwithstanding the foregoing, Landlord agrees  that (i) Tenant shall have access to the Leased Premises at least one hundred fifty (150) days prior  to the Commencement Date to construct Tenant's improvements of the Leased Premises and for  purposes of furniture and fixtures set-up and technology and equipment installation; during such  period, Tenant shall owe no Rent, but Tenant acknowledges and agrees that all other provisions of  this Lease shall be in effect and Tenant simultaneously therewith shall be responsible for all  Additional Rent (defined below).  B. Within fifteen (15) days after the Commencement Date, Landlord shall  submit to Tenant a certificate in the form attached as Exhibit C (the "Commencement Certjficate")  to confirm the date upon which the Commencement Date occurred. The Commencement  Certificate may also be used to memorialize the Effective Date of this Lease. Tenant shall have  twenty (20) days after receipt of the Commencement Certificate to give written notice to Landlord  objecting to the Commencement Certificate, failing which Tenant shall be deemed to have agreed  the Commencement Certificate is correct. If Tenant objects to the Commencement Certificate  within such twenty (20)-day period, Landlord and Tenant shall work together to resolve their  differences. After such differences have been resolved, Landlord and Tenant shall execute the  12  EXECUTION VERSION  





 






agreed-upon Commencement Certificate. All payments of Base Rental and all other payments of  Rent (defined below) required of Tenant herein shall be made as and when required herein,  notwithstanding any unresolved objections to the Commencement Certificate. All such payments  shall be based upon Landlord's reasonable determination of the Commencement Date of which  Landlord will notify Tenant (however, if such Commencement Date occurs as the result of Tenant's  occupancy of such portion of the Leased Premises, such notice shall not be required) until such  objections have been finally resolved, whereupon any overpayment or any underpayment, as the  case may be, theretofore made shall be adjusted by reducing or increasing, as the case may be, the  next installment of Base Rental coming due by the amount of such overpayment or underpayment,  as applicable (and no interest or penalty shall be applied thereto).  Section 2.2 RENEWAL OPTION.  A. Provided that no Event of Default exists, either on the date Tenant exercises  its Renewal Option (defined below) or as of the effective date of the Renewal Term (defined below)  and subject to the process set forth in this section, Tenant shall have the option to extend the Term  of this Lease as to all (but not part) of the Leased Premises (including any space added to the  Leased Premises pursuant to express provisions of this Lease) for two (2) additional periods (a  "Renewal Option") of five (5) years (a "Renewal Term"). The Renewal Option, and Tenant's  tenancy under the Renewal Term, shall be subject to all of the terms and conditions contained in  the Lease, except that (i) Base Rental shall be at the then-prevailing Market Rate (defined below),  but not less than the Base Rental payable during the final year of the Lease Term; (ii) Landlord  shall have no obligation to improve the Leased Premises; and (iii) there shall be no further option  to extend the Term of the Lease beyond the Renewal Term.  B. "Market Rate" means the base rental rate at the time of such determination,  after considering concessions and inducements such as tenant improvement allowances, free rent,  and the like for downtown Nashville office buildings of similar age, size, quality, and location, and  for leases of similar length with similar credit tenants, determined in accordance with subsection  (C) or (D) below for each Lease Year of the subject Renewal Term (which may include  escalations).  C. If Tenant desires to renew this Lease, Tenant shall send Landlord a  preliminary written notice no later than twelve (12) months prior to the expiration of the then­ existing Term (a "Renewal Notice"). Tenant and Landlord shall negotiate in good faith for no  more than sixty (60) days (the "Negotiation Period") to determine and mutually agree upon the  Market Rate for the Renewal Term. If Landlord and Tenant agree upon the Market Rate for the  Renewal Term in writing before expiration of the Negotiation Period, then Tenant shall be deemed  to have irrevocably exercised the Renewal Option as of the date of such agreement, subject to the  terms and conditions set forth in this section, and Landlord and Tenant shall be irrevocably bound  by their agreed-upon determination of Market Rate. Such Renewal Option exercise, subject to the  terms and conditions set forth in this section, and Market Rate agreement shall be evidenced by an  amendment to this Lease executed by both Landlord and Tenant within ten ( 10) business days after  the last day of the Negotiation Period.  If, however, Landlord and Tenant are unable to agree upon the Market Rate for the Renewal  Term before expiration of the Negotiation Period, then Tenant shall, within ten (10) business days  13  EXECUTION VERSION  of the last day of the Negotiation Period, notify Landlord either that Tenant elects not to exercise  its Renewal Option or that it irrevocably elects to exercise such Renewal Option, subject to the  terms and conditions of this section (each, an "Option Notice"). The Option Notice shall state that  Tenant is irrevocably exercising its right to extend the Term pursuant to this section, and Landlord  and Tenant shall be irrevocably bound by the determination of Market Rate set forth hereinafter in  this section. If Tenant shall fail to deliver the Option Notice on or before ten (10) business days  after the last day of the Negotiation Period, then Tenant shall have waived any right to exercise the  Renewal Option. In the event Tenant timely delivers the Option Notice to Landlord, Landlord and  Tenant shall each simultaneously present to the other party their final determinations of the Market  Rate for the applicable Renewal Term (the "Final Offers") within twenty (20) business days  following the last day of the Negotiation Period. The Final Offers do not have to be the same  determinations made during the Negotiation Period. If the Market Rate reflected by the lower of  the two (2) proposed Final Offers is not more than 6% below the higher, then the Market Rate shall  be determined by averaging the two (2) Final Offers. If the difference between the lower of the  two (2) proposed Final Offers is more than 6% below the higher, then the Market Rate shall be  determined by a Baseball-Style Arbitration (defined below) in accordance with the procedure set  forth in this section.  D. For purposes of this Lease, "Baseball-Style Arbitration" means the  following procedure:  (i) Within twenty (20) business days after Landlord's receipt of the  Option Notice, Tenant and Landlord shall each select an arbitrator ("Tenant's Arbitrntor" and  "Landlords Arbitrator", respectively) who shall be a qualified and impartial person licensed in the  State of Tennessee as a commercial broker with at least fifteen (15) years of experience in  brokering office space in the Metropolitan Nashville-Davidson County central business district.  (ii) Landlord's Arbitrator and Tenant's Arbitrator shall name a third  arbitrator, similarly qualified, within ten (10) days after the appointment of Landlord's Arbitrator  and Tenant's Arbitrator.  (iii) Such third arbitrator shall, after due consideration of the factors to  be taken into account under the definition of Market Rate set forth in this section and hearing  whatever evidence the arbitrator deems appropriate from Landlord, Tenant and others, and  obtaining any other information the arbitrator deems necessary, in good faith, make his or her own  determination of the Market Rate for the Leased Premises as of the commencement of the Renewal  Term (the "Arbitrator s Initial Determination") and thereafter select either Landlord's Final Offer  or the Tenant's Final Offer, but no other, whichever is closest to the Arbitrator's Initial  Determination (the "Final Determination"), such determination to be made within thirty (30) days  after the appointment of the third arbitrator. The Arbitrator's Initial Determination, Final  Determination, and the market information upon which such determinations are based shall be in  writing and counterparts thereof shall be delivered to Landlord and Tenant within said thirty (30)­ day period. The arbitrator shall have no right or ability to determine the Market Rate in any other  manner. The Final Determination shall be binding upon the parties hereto.  14  EXECUTION VERSION  (iv) The costs and fees of the third arbitrator shall be paid by Landlord  if the Final Determination is Tenant's Final Offer or by Tenant if the Final Determination is  Landlord's Final Offer.  (v) If Tenant fails to appoint Tenant's Arbitrator in the manner and  within the time specified in this section or Market Rate is not determined for any other reason not  the fault of Landlord, then the Market Rate for the applicable Renewal Term shall be the Market  Rate contained in the Landlord's Final Offer. If Landlord fails to appoint Landlord's Arbitrator in  the manner and within the time specified in this section, then the Market Rate for the applicable  Renewal Term shall be the Market Rate contained in the Tenant's Final Offer. If Tenant's Arbitrator  and Landlord's Arbitrator fail to appoint the third arbitrator within the time and in the manner  prescribed in this section, then Landlord and Tenant shall jointly and promptly apply to the local  office of the American Arbitration Association for the appointment of the third arbitrator.  E. Tenant may not assign a Renewal Option, and no sublessee or assignee of  Tenant may exercise a Renewal Option except as may be expressly provided in this Lease.  F. Notwithstanding Item E above, Tenant's option shall be transferable to any  Affiliated Entity as long as Landlord can assess and approve credit of the Affiliated Entity and so  long as such use of such Affiliated Entity is approved by Landlord. Subleasing or assignment by  Tenant shall not affect Tenant's renewal rights as long as Tenant remains obligated for the lease  obligations.  Section 2.3 SURRENDER. No act by Landlord shall be deemed an acceptance of a  surrender of the Leased Premises, and no agreement to accept a surrender of the Leased Premises  shall be valid, unless it is in writing and signed by Landlord. At the expiration or termination of  this Lease, Tenant shall deliver to Landlord the Leased Premises with all improvements located  therein in good repair and condition, broom-clean, reasonable wear and tear and damage by  condemnation and casualty excepted, and shall deliver to Landlord all keys and access cards to the  Leased Premises and to the Garage. Provided that Tenant has then performed all of its obligations  under this Section 2.3 of the Lease, Tenant shall remove all debris, trash and rubbish and attached  or unattached trade fixtures, furniture and personal property placed in the Premises by Tenant and  Tenant may remove any wiring or cabling placed in the Premises by Tenant; provided, however,  Landlord reserves the right to notify Tenant prior to its vacating the Premises that Landlord shall  retain all wiring and cable. Tenant shall repair all damage caused by such removal. All items not  so removed shall, at Landlord's option, be deemed to have been abandoned by Tenant and may be  appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord by applicable legal  process and in no event before the lapse of thirty (30) days following written notice to Tenant of  Landlord's intent to dispose of for such items.  Section 2.4 HOLDING OVER. In the event of holding over by Tenant after expiration  or earlier termination of this Lease, Tenant shall be deemed a month-to-month tenant-at-will (either  party having the right to terminate such tenancy upon thirty (30) days' advance notice) and shall  pay, as Base Rental for each month or any part thereof of any such holdover period, (i) 125% of  the Base Rental which Tenant was obligated to pay for the month immediately preceding the end  of the Term (plus Additional Rent provided for under this Lease) for months 1-3 of any such  holdover period; and (ii) 150% of the Base Rental which Tenant was obligated to pay for the month  15  EXECUTION VERSION  immediately preceding the end of the Term (plus Additional Rent provided for under this Lease)  for months thereafter of any such holdover period. No holding over by Tenant after the Term shall  operate to extend the Term and in all events shall not exceed six (6) months from the end of the  Term. Additionally, in the event of any holding over by Tenant, Tenant shall indemnify Landlord  against (i) claims for actual damages, incurred by Landlord to any other tenant to whom Landlord  has leased all or any part of the Leased Premises covered hereby and (ii) reasonable attorneys' fees  and other reasonable actual out of pocket costs and expenses incurred by Landlord as the result of  such holding over incurred after the first month of the hold over period. Except as modified by  the provisions ofthis section, all of Tenant's obligations and all of Landlord's rights and remedies  under the Lease shall apply to any holdover period.  Section 2.5 SURVIVAL. Unless otherwise specifically set forth in this Lease, any  covenant, obligation, claim, cause of action, or liability arising during the Term and under the  provisions of this Lease in favor of a party hereto and against or obligating the other party hereto  shall survive the expiration or any earlier termination of this Lease for a period of twelve (12)  months.  Section 2.6 INTENTIONALLY OMITTED  Section 2. 7 NO SUBSTITUTION. Landlord shall have no right to relocate Tenant to  another premises in the Building or substitute the Office Space.  ARTICLE III.  RENT  Section 3.1 BASE RENTAL AND RENT PAYMENTS, GENERALLY.  A. Following the expiration of the Free Rent Period (as defined below) and  continuing thereafter throughout the Term, Tenant agrees to pay Base Rental in 12 equal monthly  installments in advance on the first (1st) day of each calendar month during the Term, subject to  the provisions of subsection (B) below, and Tenant hereby agrees to so pay such Base Rental and  all other Rent to Landlord at Landlord's address as provided herein (or such other address as may  be designated by Landlord from time to time). Tenant agrees that (i) Base Rental for the first Lease  Year of the Initial Term shall be as set forth in the Lease Summary and (ii) Base Rental shall  increase during the Term pursuant to the provisions of this Lease (including this Section 3. l(A),  and Section 2.2). Tenant agrees that, during the Initial Term, Base Rental (i) for the second Lease  Year of the Initial Term shall increase by an amount equal to 2.5% of the first Lease Year's Base  Rental (i.e., to a new Base Rental of $563,566,.38) and (ii) for each Lease Year thereafter during  the Initial Term shall increase by an amount equal to 2.5% of the prior Lease Year's Base Rental.  B. If the Commencement Date is other than the first day of a calendar month  or if this Lease expires or terminates on other than the last day of a calendar month, then the  installments of Base Rental and Parking Rental for such month or months shall be prorated and  the installment or installments so prorated shall be paid in advance. Said installments for such  prorated month or months shall be calculated by multiplying the equal monthly installment by a  16  EXECUTION VERSION  





 






fraction, the numerator of which shall be the number of days of the Term occurring during said  commencement or expiration month, as the case may be, and the denominator of which shall be  the number of days in said month.  C. Tenant agrees to pay all rent and other sums of money as shall become due  from and payable by Tenant to Landlord under this Lease (collectively, and including sums due  under Sections 3.2 and 4.7, the "Rent") at the times and in the manner provided in this Lease,  without demand by Landlord, unless otherwise expressly required in this Lease and without  abatement (except as may be explicitly provided in this Lease to the contrary), notice, demand,  set-off, or counterclaim, except as specifically set forth in this Lease. All Rent other than Base  Rental shall constitute additional rent ("Additional Rent") under this Lease, and Landlord shall be  entitled to exercise the same rights and remedies provided for in this Lease for the nonpayment of  any Rent. Any payment of Rent not received by Landlord within five (5) days of the date when  due shall be deemed delinquent and Tenant shall pay to Landlord on demand a late charge equal  to three percent (3)% of the amount of such delinquent Rent; provided, however, that,  notwithstanding the foregoing (i) in the case of any payment other than monthly payments of Base  Rental and of estimated Operating Expenses, no such late charge shall apply until any such  delinquency is failed to be cured by Tenant within five (5) business days following the date  Landlord shall deliver to Tenant notice that the amount in question is delinquent and (ii) in the case  of delinquent payments of Base Rental and estimated Operating Expenses, for the first instance of  delinquency during each Lease Year (and not for any subsequent instances during such Lease  Year), there shall be no late charge due ifTenant shall pay the amount due within three (3) business  days following Tenant's receipt of Landlord's written notice that the sum in question is delinquent.  Tenant acknowledges that such late charge is not a penalty, but is to compensate Landlord for the  additional administrative expenses and other expenses incurred by Landlord in handling delinquent  payments (which expenses are not readily ascertainable) and is in addition to, not in lieu of, interest  on late payments as provided herein and any other remedies that Landlord may have by virtue of  Tenant's failure to make payments when due. All Rent owed by Tenant to Landlord under this  Lease shall bear interest from the date five (5) days following the due date until payment is  received at the rate (the "Interest Rate") equal to the lesser of (i) 12% per year or (ii) the maximum  rate of interest per year allowed by law. In addition, in the event Tenant provides a check in  payment of Rent or any other amount due under this Lease, and such check is dishonored for any  reason, Tenant shall pay, in addition to any other charge or payment, a dishonored check charge in  the amount of $35.00.  D. Notwithstanding anything to the contrary contained in this Lease, Tenant  shall owe no Base Rental on the Premises during the first three (3) months of the Term and the  first month of the fourth (4th) year of the Term (the "Free Rent Period") and shall be responsible  only for Additional Rent during such time. The Free Rent Period shall commence upon the  Commencement Date, and shall expire on the last day of the third (3rd) full calendar month  following the Commencement Date and the last day of the first month of the fourth (4th) year of  the Term.  Section 3.2 OPERATING EXPENSES.  A. In addition to Base Rental, Tenant shall pay to Landlord, as Additional Rent  for each calendar year or portion thereof during the Term, Tenant's Percentage Share of the  17  EXECUTION VERSION  Operating Expenses of the Building portion of the Project including Common Areas (and not the  hotel and residential condominium) for the subject calendar year or portion thereof. The  Additional Rent payable pursuant to this section shall be determined and adjusted in accordance  with the following:  (i) On or before the Commencement Date for the First Lease Year and  thereafter, during each December of the Term, or as soon thereafter as practicable but in no event  later than February 15th of the following year, Landlord shall give Tenant written notice of its  estimate of Additional Rent payable under this Section 3 .2 for the ensuing calendar year or portion  thereof, as applicable. In the event such estimate is given after December 31 of any Lease Year,  Tenant shall pay Additional Rent monthly as required under this Lease at rate previously paid until  such new estimate is provided in accordance with this section. Such estimated Additional Rent  shall be paid in equal monthly installments on or before the first day of each calendar month during  such ensuing calendar year or portion thereof, as applicable; provided, however, that any monthly  installment for less than a full calendar month shall be prorated as hereinafter provided. The  foregoing notwithstanding, if such notice is not given in December, Tenant shall continue to pay  monthly installments of Additional Rent required under this Section 3 .2 during the ensuing  calendar year on the basis of the amounts payable during the calendar year just ended until the  month after such notice is given. If at any time or times it appears to Landlord that the actual  amount of Additional Rent payable under this Section 3 .2 for the current calendar year or portion  thereof, as applicable, will vary from Landlord's estimate by more than three percent (3%),  Landlord may revise, by notice to Tenant but not more often than once a year, its estimate for such  year or portion, and subsequent payments by Tenant for such year or portion shall be based upon  such revised estimate. Failure to m:~e a revision contemplated by the immediately preceding  sentence shall not prejudice Landlord;s right to collect the full amounts of Additional Rent payable  under this Section 3.2. Notwithstanding the preceding sentence, if Landlord has not provided  Tenant notice of the revised Additional Rent due within twelve (12) months of the year in which  such revised Additional Rent was incurred by Landlord, then Tenant shall have no liability for or  obligation to pay such revised Additional Rent; provided, however, that the twelve (12) month  limitation shall not apply to any amounts that are in dispute or subject to negotiation by Landlord  so long as Landlord provides Tenant written notice of the occurrence of such dispute or negotiation  with reasonable promptness following the inception of such dispute or negotiation.  (ii) Within one hundred eighty (180) days after the end of each calendar  year for which all or any portion of which Additional Rent under this Section 3 .2 is payable,  Landlord shall deliver to Tenant a statement (an "Operating Expense Statement") of the  adjustments to be made pursuant to this section for the calendar year just ended, together with  reasonable back-up invoices, bills, or receipts as Tenant may request, and the Operating Expense  Statement shall be binding upon Landlord and Tenant absent manifest error, subject to Tenant's  audit rights under this section. If, on the basis of the Operating Expense Statement, Tenant owes  an amount that is less than the estimated payments previously made by Tenant for the calendar  year just ended or portion thereof, as applicable, Landlord shall credit such excess to the next  payments of Additional Rent coming due pursuant to this Section 3.2. If the Term is about to  expire, Landlord shall refund such excess to Tenant within thirty (30) days if there is then no  uncured Event of Default under this Lease. In the instance of an uncured Event of Default, such  excess shall be held as security for Tenant's performance, may be applied by Landlord to cure any  such Event of Default, and shall not be refunded until any such default is cured. In the case that  18  EXECUTION VERSION  Landlord holds such excess, Landlord shall provide written notice of the amount so held and advise  Tenant in writing when and how such amount is applied or is to be applied so Tenant can maintain  accurate records as to application and disposition of such funds. If, on the basis of the Operating  Expense Statement, Tenant owes an amount that is more than the estimated payments previously  made by Tenant for the calendar year just ended or portion thereof, as applicable, Tenant shall pay  the deficiency to Landlord within thirty (30) days after delivery of the Operating Expense  Statement.  (iii) If the Term commences on a day other than the first day of a calendar  year or expires on a day other than the last day of a calendar year, the amount of Additional Rent  payable pursuant to this Section 3.2 for such partial year shall be the product of (x) Additional  Rent that would have otherwise been payable for the full calendar year and (y) a fraction, the  numerator of which is the actual number of days of the subject calendar year that are included  within the subject portion of the Term, and the denominator of which is 365. The expiration of the  Term shall not affect the obligations of Landlord and Tenant under this section that are to be  performed subsequent to such expiration of the Term.  (iv) If during any calendar year during the Term the occupancy of  Rentable Area of the Building is less than 95%, then Operating Expenses will be adjusted for such  calendar year as though at least 95% of the Rentable Area of the Building had been occupied.  (v) Notwithstanding anything in this Section 3.2 to the contrary,  Tenant's Percentage Share of Controllable Operating Expenses (defined below) for each of the  respective calendar years shall not include the portion of such Controllable Operating Expenses  that exceeds four percent (4%) of Controllable Operating Expenses incurred by Landlord, per year  calculated on a cumulative compounded basis. For example, the maximum amount of Controllable  Expenses that may be included in such calculation for each calendar year shall equal the product  of the Controllable Expenses during the initial year and the following percentages for the following  calendar years: 104% for the second calendar year; 108.16% for the third calendar year; 112.49%  for the fourth calendar year, etc. without any carryover of unrecouped Controllable Expenses.  Tenant's Percentage Share of Controllable Operating Expenses for the second full calendar year  of the first Renewal Term (if exercised) shall not include the portion of such Controllable Operating  Expenses that exceeds four percent ( 4%) of Controllable Operating Expenses incurred by Landlord  for the first full calendar year of such Renewal Term. "Controllable Operating Expenses" are  defined to be all Operating Expenses, except for real estate taxes, insurance and utilities, weather  related clean-up costs (such as snow removal and wind and rain damage), and expenses incurred  because of Tenant's negligent or intentional acts or omissions.  B. "Operating Expenses" means all reasonable and customary expenses and  costs calculated in accordance with generally accepted accounting principles consistently applied  ("GAAP") (but excluding charges separately paid by other tenants of the Project or other third  parties other than through the payment of its share of operating expenses) of every kind and nature  that Landlord shall pay or become obligated to pay because of or in connection with the ownership,  maintenance, repair, and operation of the Project, including without duplication (but not limited  to) the following:  19  EXECUTION VERSION  (i) Wages, salaries, fees and all related expenses and benefits  (including, without limitation, taxes, insurance and burdens and the costs incurred in providing  same) of all (x) on-site personnel to the extent exclusively engaged in the operation, maintenance,  repair and/or access control of the Project (and if not exclusively so engaged as may be reasonably  allocated by Landlord); (y) off-site personnel, but only to the extent performing services for the  Project as reasonably allocated by Landlord; and (z) personnel who provide traffic control relating  to ingress and egress to and from the Garage and surrounding public streets (excluding, however,  executive personnel of Landlord (but including the pro rata share of time allocated to the Project  of the senior property manager, even if an executive of Landlord), employees senior to the senior  property manager, and senior controller and senior engineer);  (ii) Cost of all supplies, tools, equipment and materials, whether  purchased or leased, to the extent used in the operation, maintenance, repair, and/or access control  of the Project;  (iii) Cost of utilities for the Project, including, but not limited to, water,  sewer, waste disposal, gas and electricity, and power for heating, lighting, air conditioning and  ventilating the Project; provided, however, if, and to the extent, Landlord receives any rate  discount, credit, rebate or similar adjustment for any utility charges, Landlord shall reduce Tenant's  charge for such utilities by Tenant's Proportionate Share for such discount, credit, rebate or similar  adjustment so Tenant's obligation is based on actual costs incurred by Landlord of such utilities  for the Project;  (iv) Reasonable, market-rate fees paid to the property manager for the  management of the Project and the cost of all maintenance and service agreements for the Project  and the equipment therein, including, but not limited to, access control service, window cleaning,  traffic control, janitorial service, trash and recycling removal and services, hardscape and  landscape maintenance, and elevator maintenance; provided, however, in no event shall Tenant  pay management fees in excess of an amount equal to Tenant's Percentage Share of management  fees set at three percent (3%) of Project rent;  (v) Legal and accounting costs for the Project, including a reasonable  allocation of off-site costs, together with the costs of annual audits of the Project operating costs  by certified public accountants (excluding, however, such audits requested or necessary to comply  with requirements of other tenants or required for Landlord's own compliance purposes such as  may be required under Landlord's financing documents);  (vi) Cost of all commercially reasonable and/or usual and customary  insurance relating to the Project, including but not limited to, fire and extended coverage insurance,  rental loss or abatement insurance (which rental loss or abatement insurance relates only to fire or  other casualty losses and specifically excludes insurance which pays Landlord rental lost on  account of a default by a tenant in paying its rent), and casualty and liability insurance applicable  to Landlord's personal property used in connection therewith, plus the cost of all commercially  reasonable deductible payments made by Landlord in connection therewith;  20  EXECUTION VERSION  





 






(vii) Cost of service, operation, repairs, replacements, and general  maintenance (excluding repairs, replacements and general maintenance paid for with proceeds of  insurance or condemnation or by third parties) of the Project (including any portion thereof);  (viii) Any and all General Common Area, lighting, landscaping, water and  utilities related thereto, Common Area, and Service Areas maintenance and operation costs,  including Project hardscapes (including sidewalks) and landscapes, lighting, landscaping water  and utilities including the approximately 62,000 square feet of plaza space identified on the  Building Amenities Floor Plan attached hereto as Exhibit B-2 (as such items are identified and  allocated according to the master condominium declaration for the Project);  (ix) All taxes, assessments and governmental charges (including those  paid out of an escrow account on Landlord's behalf by the holders of any Encumbrance (defined  below)), whether federal, state, county or municipal and whether they be by taxing districts or any  Governmental Authority (defined below) presently taxing the Project or by others subsequently  created, attributable to the Project or its operation and an allocation to the Project of the taxes,  assessments and governmental charges for the service roads which service the Project, but  excluding, however, taxes and assessments attributable to the personal property of tenants, federal  and state taxes on income, franchise taxes, excise taxes, and any taxes imposed or measured on or  by the income of Landlord from the operation of the Project or imposed in connection with any  change of ownership of the Project; provic\ed, however, that if at any time during the Term, the  method of taxation or assessment in place as of the Commencement Date shall be so changed that  the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed  or imposed on real estate and the improvetjlents thereon shall be discontinued and as a substitute  therefor, or in lieu of or in addition thereto taxes assessments, Levies impositions or chatges shall  be l~vied, assessed or_ imposed wholly o<partially~ as a capital levy or otherwise, on th_e rents  receLved from the Project or the rents resel'ved herem or any part thereof then such substitute or  additional taxes, assessments, levies, impo~itions or charges, to the extent so levied, assessed or  imposed with respect to the Project, shall ~e deemed to be included within Operating Expenses.  Reasonable consultation, accounting and l~gal fees and other fees and costs resulting from any  challenge of tax assessments as reasonabiy allocated by Landlord also shall be included in  Operating Expenses. It is agreed that TenaHt will be directly responsible for ad valorem taxes on  its personal property. All taxes, assessmerf~ and governmental charges described above directly  or indirectly paid by the Landlord shall be lfi.cluded in Operating Expenses in the calendar year in  which such taxes, assessments or governniental charges are levied, assessed or imposed without  regard to when such taxes assessments or governmental charges are payable; provided, however,  in the case of special taxes and assessments which may be payable in installments, only the amount  of each installment accruing during a calendar year shall be included in the Operating Expenses  for such year;  (x) Amortization of the cost, together with reasonable interest charges,  of furnishing and installing capital investment items which are for the purpose of reducing  Operating Expenses or avoiding increases in Operating Expenses but only to the extent of such  reduction as reasonably documented by Landlord. All such costs shall be amortized over the useful  life of the capital investment items with the useful life and amortization schedule being determined  in accordance with generally accepted accpunting principles (in no event to extend beyond the  remaining useful life of the Project);  21  EXECUTION VERSION  (xi) Ongoing periodic (i.e. annually incurred) costs of licenses, permits  and inspection fees related to the Project unrelated to the initial development of the Project; and  (xii) If actually maintained, reasonable, actual cost of space for an office  in the Building maintained for management of the Project, to the extent such office is not included  as Common Area and such cost is determined based on a fair market value rental rate.  (xiii) All costs and expenses of the Project which benefit the Project  Facilities as a whole and which are used or useable by Tenant or otherwise directly benefit the  Tenant shall be reasonably and equitably allocated among the Project Facilities as Landlord and  as the other owners of the Project Facilities shall determine.  Anything in the foregoing provisions hereof to the contrary notwithstanding, Operating  Expenses shall not, directly or indirectly, include the following:  (i) Leasing commissions, attorneys' fees, brokers' fees, costs,  disbursements and other expenses incurred in connection with negotiations for leases with tenants,  other occupants, or prospective tenants or other occupants of the Project, or similar costs incurred  in connection with disputes with tenants, other occupants, or prospective tenants or other occupants  of the Project, or similar costs and expenses incurred in connection with negotiations or disputes  with consultants, management agents, purchasers or mortgagees of the Project;  (ii) Non-cash items, such as deductions for depreciation or obsolescence  of the Project and the Project equipment, or interest on capital invested (except as provided in  clause Section 3.2(B)(x) above);  (iii) Payments of principal and interest or other finance charges made on  any debt (except as provided in clause Section 3.2(B)(x) above), and rental payments made under  any ground or underlying lease or leases, except to the extent that a portion of such payments is  expressly for ad valorem taxes or insurance premiums on the Project;  (iv) Costs incurred by Landlord in the sale, financing, refinancing,  mortgaging, selling or change of ownership of the Project, including but not limited to, brokerage  commissions, attorneys' and accountants ' fees, closing costs, title insurance premiums, transfer  taxes and interest charges;  (v) Costs and expenses (whether hard or soft costs) attributable to the  initial design, construction, equipping and opening of the Project (including permit, license and  inspection costs);  (vi) Any penalty charges or interest incurred by Landlord due to  Landlord's late payment of taxes, utility bills or other amounts included in Operating Expenses,  except to the extent Landlord was contesting the payment of any such item in good faith;  (vii) Allowances and other costs and expenses incurred in fixturing,  furnishing, renovating or otherwise improving, decorating or redecorating space for tenants or  prospective tenants of the Building, or vacant leasable space in the Building (including permit,  license and inspection costs but excluding normal maintenance, repair and replacement costs);  22  EXECUTION VERSION  (viii) Costs of repairs, restoration, replacements or other work occasioned  by (1) fire, windstorm or other casualty of an insurable nature (whether such destruction be total  or partial) and payable (whether paid or not) by insurance required to be obtained by Landlord  under this Lease or otherwise paid by insurance then in effect obtained by Landlord, (2) the  exercise by any Governmental Authority of the right of eminent domain, whether such taking be  partial or total, (3) the gross negligence or willful misconduct of Landlord, or its agents and  employees, and (4) the act of any other tenant in the Project or its agents or employees or by any  third party, not a Tenant invitee;  (ix) Any costs or expenses reimbursed to the Landlord from any tenant,  insurance, or third party, including without limitation, under any lease, or under any contract  and/or similar agreement with a third party such as a warranty, indemnity, bond or similar  arrangement;  (x) Costs of repairing, replacing, or otherwise correcting defects (but  not the cost of repair for normal wear and tear) in the initial construction of the Project;  (xi) Increased insurance premiums caused by Landlord's or any other  Project tenant's extra-hazardous acts;  (xii) Advertising and promotional costs for the Project or related to the  leasing of the Project;  (xiii) All amounts which would otherwise be included in Operating  Expenses which are paid to Landlord or any affiliate of Landlord to the extent the costs of such  services exceed the amount which would have been paid in the absence of such relationship for  similar services of comparable quality rendered by persons of similar skill, competence and  experience (but excluding any such amounts specifically provided for in this Lease, for which the  provisions of this Lease shall control);  (xiv) Landlord's general corporate overhead relating solely to the internal  organization, function and operation of Landlord and its affiliates as a business entity (as opposed  to directly related maintenance, ownership and operation of the Project);  (xv) Cost of any political, charitable donations or contributions or other  voluntary contributions by Landlord or its affiliate;  (xvi) Costs incurred due to Landlord's breach of this Lease or costs  incurred due to the violation by Landlord of the terms and conditions of any lease of space in the  Building;  (xvii) Executives' salaries and/or bonuses or perks, related compensation  expenses, except as set forth above (including as allowed relative to the Project's senior property  manager);  (xviii) Costs incurred in performing work or furnishing services or utilities  for any tenant, whether at such tenant's or Landlord's expense, to the extent that such work or  23  EXECUTION VERSION  service is in excess of any work or service or utilities that Landlord is obligated to furnish to Tenant  at Landlord's expense;  (xix) Costs for improvements or services in the Building solely for the  benefit of a single party other than Tenant;  (xx) Electricity for which any tenant is separately metered or submetered  and pays Landlord directly or pays directly to the public service company (excepting common  metered uses in addition to the separate metered usage);  (xxi) Costs for entertainment, gifts and similar gratuities;  (xxii) Costs of sculptures, paintings or other objects of art that are not  permanently affixed to the Building;  (xxiii) Any costs associated with Hazardous Materials; and  (xxiv) Costs of defending or prosecuting litigation with any party,  including tenants, mortgagees, or others, unless a favorable judgment would reduce or avoid an  increase in Operating Expenses, or unles:;; the litigation is to enforce compliance with Building  Rules or other standards or requirements for the general benefit of the tenants in the Building.  (xxv) Costs ( excluating payment of reasonable fees for goods or services)  of any overhead and profit increment paid to affiliates of Landlord for goods and services;  (xxvi) Costs of any contributions to Operating Expense reserves;  (xxvii) Costs of installing signs in or on the Project identifying the owner  of the Project or other tenants occupying space within the Project; and  '.1  (xxviii) Costs of any "tap fees" (unless directly related to Tenant's use and  occupancy of the Premises) or one-time lump sum sewer or water connection fees for the Property,  prior to the Commencement Date. . <  C. Notwithstanding ~thing herein, in no event will Landlord have the right  to collect (and if collected the right to retain) more than one hundred percent (100%) of actual  Operating Expenses incurred in any calendar year. In addition, in no event shall the Tenant have  any obligations to pay any amount of Operating Expenses billed more than nine (9) months after  the Lease year.  D. Landlord shall keep its books, records and supporting documents in  connection with the Operating Expense Statement for each calendar year for a period of at least  thirty six (36) months after the expiration of such particular calendar year, and the calculation of  Operating Expenses shall be in accordance with GAAP. All miscellaneous categories under such  records shall have documentation to substantiate any costs included therein. If any amount under  Section 3.2(A)(ii) is due by Tenant to Landlord with respect to the immediately preceding two  calendar years, Tenant, at its sole cost and expense, shall have the right (to be exercised by giving  written notice to Landlord within one hundred eighty (180) days after receipt of the Operating  24  EXECUTION VERSION  





 






Expense Statement for the previous calendar year) once per calendar year to audit and/or inspect  Landlord's books and records with its own personnel or through the use of a licensed CPA  pertaining only to items affecting Operating Expenses for such preceding calendar year(s),  provided that such audit and/or inspection (i) must be commenced and concluded by December 31  of the year following the year to which any such disputed item relates (unless such delay is due, in  whole or in part, to Landlord's failure to supply information in its possession or control or  otherwise to cooperate reasonably with Tenant's review or audit efforts); (ii) does not unreasonably  interfere with the conduct of Landlord's business; and (iii) the audit fee is not calculated on a  contingency basis. Tenant will provide to Landlord a copy of any such audit and/or inspection  report. Notwithstanding the foregoing, if Tenant elects to audit and/or inspect Landlord's books  and records to the extent permitted above and the Operating Expenses for such calendar year do  not exceed the Operating Expenses for the calendar year immediately preceding the subject  calendar year by more than three percent (3%), then Landlord, in its sole discretion, may elect to  furnish Tenant a copy of an audit prepared by a certified public accountant in lieu of Tenant  performing the aforementioned audit and/or review. If Tenant's audit and/or inspection conducted  by a licensed CPA proves Landlord's calculation of the Operating Expenses was overstated and  such excess was actually paid by Tenant, then Landlord, shall credit Tenant the difference or credit  same against Base Rental next coming due, or refund such amounts to Tenant if at the end of the  Term. If Tenant is shown to have underpaid Landlord for any audited and/or inspected calendar  year, Tenant hereby agrees to pay Landlord the difference within thirty (30) days of the completion  of the audit and/or inspection. Additionally, if Tenant's audit and/or inspection conducted by a  licensed CPA proves that Landlord's calculation of Operating Expenses was overstated by more  than three percent (3%), then Landlord shall pay Tenant's actual reasonable audit/inspection out­ of-pocket third party costs applicable to the audit/inspection of Operating Expenses for the  applicable calendar year.  Section 3.3 SECURITY DEPOSIT. Concurrently with the execution and delivery of  this Lease, Tenant shall deposit with Landlord a "Security Deposit" equal to one month's rent for  the initial Lease Year, to be held as collateral security for the payment of Rent and for the faithful  performance by Tenant of all covenants and conditions herein contained. If at any time during the  Term, any of the Rent herein reserved shall be overdue and unpaid, then Landlord may, at its  option, appropriate and apply all or any portion of the Security Deposit to the payment of any such  overdue Rent. In the event of the failure of Tenant to keep and perform any of the terms, covenants  and conditions of this Lease to be kept and performed by Tenant, then Landlord at its option may  appropriate and apply all or any portion of the Security Deposit, to compensate Landlord for loss  or damage sustained or suffered by Landlord due to such breach on the part of Tenant. Should the  entire Security Deposit, or any portion thereof, be appropriated and applied by Landlord, then  Tenant shall, upon the written demand of Landlord, forthwith remit to Landlord a sufficient amount  to restore said Security Deposit to the original sum deposited, and Tenant's failure to do so within  ten (10) days after receipt of such demand shall constitute a default under this Lease. If Tenant  fully observes and performs every provision of this Lease to be observed and performed by Tenant,  the Security Deposit, or any balance then remaining (less any amount which has been applied as  permitted under this Section 3.3 shall be returned to Tenant at Tenant's last known address within  ten (10) days after the later of: (a) the termination of this Lease; and (b) the date Tenant has fully  satisfied Tenant's surrender obligations hereunder.  25  EXECUTION VERSION  ARTICLE IV.  TENANT'S USE AND PROJECT SERVICES  Section 4.1 TENANT'S USE. The Leased Premises are to be used and occupied by  Tenant for the Permitted Use and for no other purpose(s). Without limiting the generality of the  foregoing, Tenant may maintain in the Leased Premises (for use by Tenant and its employees and  business invitees only) a catering kitchen with coffee makers, a lounge or bar area serving alcoholic  beverages, a microwave oven, a refrigerator, ice machines, and food, drink or other vending  machines, subject, however, to Legal Requirements and to Landlord's reasonable approval of the  location, visibility, layout, design, venting and condition of all of the foregoing, such approval not  to be unreasonably withheld, conditioned or delayed. Without limiting the foregoing and  notwithstanding anything to the contrary in this Lease, the Leased Premises shall not be used for  any purpose set forth in Exhibit D. In all events, Tenant shall not engage in any activity which in  Landlord's reasonable opinion is not in keeping with the first-class standards of the Project.  Section 4.2 NO NUISANCE AND NO VIOLATIONS OF INSURANCE  COVERAGE. Without limiting any other provision of this Lease, Tenant shall (i) conduct its  business and control its agents, employees, invitees, contractors and visitors in such a manner as  not to create any nuisance, or interfere with, annoy or disturb any other tenant or Landlord in its  operation of the Project; (ii) not occupy or use the Leased Premises, or permit any portion of the  Leased Premises to be occupied or used, for any business or purpose other than that stated in  Section 4.1, or for any business or purpose which is unlawful, disreputable or deemed to be extra­ hazardous or which creates noxious or offensive odors emanating from the Leased Premises; and  (iii) not use, operate or maintain the Leased Premises in such manner that any of the rates for any  insurance carried by Landlord or any other owner or occupant of premises in the Building shall  thereby be increased, or in such manner as will affect or cause a cancellation of any such insurance  policy.  Section 4.3 LEGAL REQUIREMENTS; RULES OF THE PROJECT.  A. Tenant, at its sole cost and expense, shall comply with, and shall use  reasonable best efforts to cause its employees, contractors, agents, customers, visitors, and invitees  to comply with, (i) all Legal Requirements (defined below) relating to the use, condition or  occupancy of the Leased Premises (including, without limitation, all Legal Requirements  applicable to installation and maintenance of the Tenant Improvements and to Tenant's business  and operations in the Leased Premises and all orders and requirements imposed by any health  officer, fire marshal, building inspector or other Governmental Authority); (ii) all conditions,  covenants, and restrictions and other matters of record that bind the Land and/or the rest of the  Project; and (iii) the reasonable rules of the Project adopted by Landlord from time to time for the  safety, care and cleanliness of the Leased Premises and the Project and for preservation of good  order therein (the "Project Rules"). The Project Rules in effect on the Effective Date are attached  hereto as Exhibit E. In the event of any conflict between the provisions of this Lease and the  Project Rules, the provisions of this Lease shall control. "Legal Requirements" means any  applicable law, statute, ordinance, order, rule, regulation, decree or requirement of a Governmental  Authority (including, but not limited to, ADA), and "Governmental Authority" means the United  States, the state, county, city and political subdivisions in which the Project is located or which  26  EXECUTION VERSION  exercise jurisdiction over the Project, and any agency, department, commission, board, bureau or  instrumentality of any of them which exercises jurisdiction over the Project.  Without limiting the provisions of the preceding paragraph, Tenant shall comply with all  applicable Legal Requirements regarding health, safety, and the environment (collectively,  "Environmental Laws") as relates to its use and occupancy of the Leased Premises, including the  application for and maintenance of all required permits, the submittal of all notices and reports,  proper labeling, training and recordkeeping, and timely and appropriate response to any Release  (defined below) or other discharge of a substance governed by Environmental Laws. "Release"  means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,  escaping, leaching, dumping, or disposing into the environment (including the abandonment or  discarding of barrels, containers and other closed receptacles).  B. Without limiting the provisions of subsection (A) above, Tenant shall not  cause or permit the use (except for minimal quantities) of any substance which technically could  be considered a Hazardous Material (defined below) provided (i) such substance is of a type and  is held only in a quantity normally used by tenants in connection with the occupancy or operation  of office space in first-class office buildings in Nashville, Tennessee (such as normal office waste,  pest control products, and cleaning fluids, and with respect to automobiles parked in the Garage  only, motor fuel and oil in such auton~obiles), (ii) such Hazardous Material does not endanger the  health or safety of any person, (iii) Tenant complies with all Legal Requirements applicable to  such Hazardous Material, and (iv) it is understood and agreed that with regard to such Hazardous  Material, the obligations of Tenant iii this section shall apply (including Tenant's obligation to  clean up, remove, restore or take other remedial action with respect to any such Hazardous Material  even though Tenant is permitted pursuant to this parenthetical to cause such substance to be used  in the Leased Premises subject to the .limitations set forth above] generation storage, Release or  disposal in or about the Leased Premi~es, the Building or the Project of any substances materials  or wastes subject to regulation under ~nvironmental Laws from time to time in effect ("Hazardous  Materials"), unless Tenant has receiv&:l Landlords prior written consent, which consent Landlord  may withhold or revoke at any time irt its sole discretion. Additionally, Tenant shall not permit to  be present upon the Leased Premises, 'or contained in any transformers or other equipment thereon,  any PCB's. "PCB" means any oil or other substance containing polychlorinated biphenyl (defined  in 40 CFR 761.3). Tenant shall not phmit any asbestos, or any structures, fixtures, equipment or  other objects or materials containing ~sbestos on the Leased Premises. Tenant shall immediately  notify Landlord of the presence of ~ny Reportable Quantity (defined below) of a Hazardous  Material on or about the Leased Premises. "Reportable Quantity" means an amount defined in the  Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,  the Federal Water Pollution Control Act, as amended, pertinent regulations thereunder or other  relevant Environmental Laws.  C. Landlord (i) represents to Tenant that as of the Effective Date, Landlord has  not generated, stored or disposed of Hazardous Materials in or on the Land in violation of Legal  Requirements in effect at the time of such generation, storage or disposal, (ii) warrants to Tenant  that no Hazardous Materials shall be generated, stored or disposed in or on the Land, Building or  the Leased Premises in violation of Legal Requirements in connection with the construction of the  Building and Garage, and (iii) warrants to Tenant that the Base Building and the Garage shall be  constructed in compliance with the ADA and, if applicable, any similar Legal Requirement.  27  EXECUTION VERSION  Section 4.4 SERVICES TO BE FURNISHED BY LANDLORD.  A. Landlord shall furnish or cause to be furnished during the Term the  following standard services (the "Building Standard Services"), cost of which, based upon Tenant's  Percentage Share, shall be charged to Tenant as Operating Expenses:  (i) Common-use restrooms with hot and cold water at locations  provided for general use of other tenants in the Building.  (ii) Central heat and air conditioning in season through the Base  Building central heating, ventilation, and air conditioning system, subject to curtailment as  required by Legal Requirements. Landlord shall furnish such service to Tenant between the hours  (the "Building Operating Homs") of 7:00 A.M. and 6:00 P.M., Monday through Friday, and 8:00  A.M. and 1 :00 P.M. on Saturday, excluding the following holidays (or the day observed in lieu  thereof by national banks): New Year's Day, Memorial Day, Independence Day, Labor Day,  Thanksgiving Day and Christmas Day (collectively, the "Holidays"). Upon request of Tenant  made in accordance with the Project Rules (defined below), Landlord will furnish such service at  times other than Building Operating Hours, in which event, Tenant shall pay Landlord the then­ current charges incurred by Landlord to provide such services, without mark-up. As of the  Commencement Date, the after-hour charge is anticipated to be $50.00 per hour per floor, with a  2.5% increase each calendar year; however, such charge is subject to the actual cost of providing  such after-hours service (as reasonably documented by Landlord) and to increase by Landlord (as  reasonably documented by Landlord) based upon such actual costs, from time to time.  (iii) Janitorial services on the schedules (excluding the Holidays) and  covering the scope of work contained on the schedule attached hereto as Exhibit G; provided,  however, if Tenant's leasehold improvements (including floor coverings) are other than Building  Standard Improvements, include a lunchroom, coffee bar or other similar facility for its employees  or otherwise require special or additional cleaning in excess of the Building Standard Services,  Tenant shall pay the actual additional cleaning cost, if any, incurred by Landlord as the result  thereof.  (iv) Sufficient electrical capacity transformed to a panel box located in  the core of each floor of the Leased Premises for equipment and accessories normal for commercial  office use oflow electrical consumption at standard voltage (120 volts, single-phase) and lighting,  mechanical, and equipment at high voltage (277 volts, single-phase) to the extent that the total  demand load at 100% capacity of the foregoing does not exceed 7 watts per square foot of Usable  Area (the "Building Standard Rated Electrical Design Load"). Tenant shall pay to Landlord the  cost of electricity consumed in excess of the Building Standard Rated Electrical Design Load as  determined by meter, or if not metered, as otherwise reasonably estimated by Landlord (with  concurrence of Tenant's electrical engineers or consultants), plus any actual accounting expenses  incurred by Landlord in connection with the metering thereof. Landlord or Tenant may cause the  entire Leased Premises to be separately metered (at Landlord's expense), including, without  limitation, the cost of installing, maintaining, repairing and replacing such meters to the extent  necessary), in which event Tenant shall pay the actual cost of electricity consumed by Tenant.  Should the provisions set forth in the Exhibits to this Lease differ from this subsection (iv), then  the provisions included in the Exhibits shall be controlling.  28  EXECUTION VERSION  





 






(v) Tenant shall cause Tenant's electrical system serving any equipment  producing non-linear electrical loads to be designed to accommodate such non-linear electrical  loads. The Tenant Working Drawings (defined in ExhibitF) shall include a calculation of Tenant's  fully connected design load with and without demand factors and shall indicate the number of  watts of un-metered and sub-metered loads. Should Tenant's non-linear electrical load (created  by equipment such as computers, servers, televisions, printers, copiers and/or other electronic  devices connected to the power system) result in harmonic distortion conditions which cause any  adverse effects in the Project, including but not limited to, derogation of any transformer,  distribution stepdown transformer failures, overheating or melting of neutral conductors, or  malfunctioning of various electronic components, Tenant acknowledges that Tenant, at Tenant's  sole cost, shall be obligated to eliminate such harmonic distortion conditions and to repair any  damage which results from such harmonic distortion within thirty (30) days of Landlord's written  request. If Tenant fails to eliminate such harmonic distortion and repair such damage caused  thereby within such thirty (30)-day period, Landlord, at its option, may make such corrections  deemed necessary by Landlord to eliminate such harmonic distortion and make such repairs, and  Tenant shall pay to Landlord on demand Landlord's cost thereof plus a charge equal to five (5%)  of such costs for administrative cost recovery. Should the provisions set forth in the Exhibits to  this Lease differ from this subsection (v), then the provisions included in the Exhibits shall be  controlling.  (vi) If Tenant's electrical and mechanical equipment and lighting require  electrical circuits, transformers or other additional equipment in excess of Tenant's Percentage  Share of the Building's electrical or HVAC systems (such additional equipment, the "Additional  Electrical Equipment"), Tenant may (at Tenant's cost, including the cost to design, install, maintain  and replace the Additional Electrical Equipment (including the meters)) install the same, provided  such installation is compatible with existing Building systems, will not compromise Landlord's  ability to provide services to Tenant or other tenants of the Building and will not be burdensome  to the Project or to Landlord, in Landlord's reasonable opinion, and Tenant shall pay all operating  costs related to that requirement (including, without limitation, the cost of electricity, water or  other services consumed through, or in connection with, the Additional Electrical Equipment).  The method of design and installation of any Additional Electrical Equipment (including any  related meter) required by Tenant shall be subject to the prior written approval of Landlord and  shall be performed by Landlord at Tenant's sole cost, and ifTenant does not install such Additional  Electrical Equipment as a part of the installation of the Tenant Improvements, Tenant shall  additionally be obligated to pay Landlord a charge equal to five percent (5%) of such cost for the  review and installation of such Additional Electrical Equipment for administrative cost recovery.  Should the provisions set forth in the Exhibits to this Lease differ from this subsection (vi), then  the provisions included in the Exhibits shall be controlling  (vii) Maintenance and repair of restrooms, toilets and drinking fountains  available on each floor or partial floor of the Building occupied by Tenant that are provided as a  part of the Base Building; the Base Building Systems; and ceiling tiles and the built-in light and  plumbing fixtures in or serving the Leased Premises that are a part of the Base Building (including  lighting fixture bulb replacement in all areas of the Project not leased by Tenant and all General  Common Areas and Service Areas).  29  EXECUTION VERSION  (viii) Perimeter access control for the Project during hours other than  Building Operating Hours; provided, however, except as may result from the willful misconduct  or gross negligence of Landlord, Landlord shall have no responsibility to prevent, and shall not be  liable to Tenant, its agents, employees, contractors, visitors or invitees for, losses due to theft or  burglary, or for damages or injury to persons or property done by persons gaining access to the  Leased Premises or the Project, and Tenant hereby, except as may result from the willful  misconduct or gross negligence of Landlord, releases Landlord from all liability for such losses,  damages or injury. Tenant shall cooperate fully in Landlord's efforts to maintain access control in  the Building and shall follow all regulations promulgated by Landlord with respect thereto,  including any access control for perimeter or General Common Areas or Common Areas as  Landlord deems necessary during Building Operating Hours.  (ix) Non-exclusive multiple cab passenger elevator service to the Leased  Premises during Building Operating Hours, with passenger elevator service to the Leased Premises  by at least 1 cab 24 hours per day, and non-exclusive freight elevator service to the Leased Premises  during Building Operating Hours with such freight elevator service available at other times upon  reasonable prior notice (however, all of the foregoing shall be subject to temporary cessation for  ordinary repair and maintenance and during times when life safety systems override normal  Building operating systems).  (x) Window washing of the exterior and interior of all exterior windows  of the Building at least once per calendar year.  B. To the extent the services described in this section require electricity, water,  gas, or other utility services supi)lied by public utilities, Landlord's covenants hereunder shall  impose on Landlord only the obligation to use its good faith, reasonable efforts to cause the  applicable public utilities to furnish the same. Landlord shall not be responsible for, and shall have  no liability with respect to, the quality or condition of any services provided by such public utilities.  C. There shall be no abatement or reduction of Rent if Tenant's use of all or a  material part of the Leased Premises is untenantable due to any of the causes identified in  subparagraphs (1) through (v) below ("Eligible Causes") that Landlord is required to provide to  the Leased Premises unless such untenantability is caused by the affirmative act or negligent  omission of Landlord or Landlord's employee, contractors, or agents (which, for clarification, do  not include utility providers or governmental agencies or any employee or agent thereof) the  Leased Premises or any portion thereof are rendered untenantable, for a period in excess of three  (3) consecutive business days (which does not include Saturdays, Sundays, or holidays) occurs for  more than a period thereafter, Rent, as Tenant's exclusive remedy for such affirmative act or  negligent omission, shall abate until such service is fully restored. With respect to those portions  of the Leased Premises that are rendered untenantable for the duration of such loss of services,  Landlord shall commence corrective steps to eliminate any such interruption or discontinuance  caused by such affirmative act or negligent omission promptly after having been notified of same  and shall diligently and continually prosecute the cure thereof. For purposes of this sub-section,  "material disruption" and "untenantable" shall mean as to any portion of the Leased Premises that  Tenant cannot reasonably occupy or conduct its usual business in the Leased Premises as a result  of a condition of the Leased Premises. Landlord shall provide a minimum of 72 hours' prior  written notice of any planned interruption of services in connection with the repair and  30  EXECUTION VERSION  maintenance of the equipment and Building systems of the Leased Premises or the Building.  Should any Landlord owned equipment or machinery related to the Leased Premises break down,  or for any cause cease to function properly, Landlord shall diligently and promptly repair same or  cause the same to be repaired and, if Landlord shall fail to effect such repair within a reasonable  time, Tenant may, at its sole option, repair same or cause same to be prepared, and, at its option (a)  deduct such amount from the payment next becoming due, or (b) require Landlord to pay to Tenant  on demand any expenses and costs together with interest at the highest lawful rate. In the event of  an emergency or life threatening situation occurring in the Building or in or about the Project,  Landlord shall notify Tenant immediately of such emergency or life threatening situation by means  of alarms, sirens, intercom system or other similar means, to assist Tenant in protecting the safety  of Tenant's representatives, customers, guests and invitees. "Eligible Causes shall mean (i) an  interruption of utility or mechanical services to the Premises not resulting from the affirmative  negligence or misconduct or Tenant or its employees, (ii) a material impairment of access to the  Leased Premises or parking areas which Tenant is entitled to use pursuant to this Lease, (iii) entry  upon the Leased Premises by Landlord or Landlord's employees, agents or contractors not  permitted by this Lease (iv) repairs, maintenance or other work required to be made to the Leased  Premises or Building which are the responsibility of Landlord under this Lease or which otherwise  are performed by or on behalf of Landlord, (v) Landlord's failure to conduct repairs, maintenance  or other work required to be made to the Leased Premises or Building which are the responsibility  of Landlord under this Lease or which otherwise are performed by or on behalf of Landlord.  Section 4.5 KEYS AND LOCKS. Landlord shall provide Tenant, without charge, with  two (2) keys for each corridor entering the Leased Premises and up to seventy (53) access cards  (collectively, the "Access Equipment"); provided, however, that the number of access cards which  shall be activated and outstanding at any one time shall be limited to those cards issued to  employees who have registered with the Landlord as full or part-time employees of the Tenant.  Such number shall be increased or decreased up to a maximum set forth in this section as necessary  to accommodate the number of such employees of Tenant, from time to time, at the Leased  Premises. Additional Access Equipment may be provided, from time to time, on an order signed  by Tenant, at a charge by Landlord equal to the cost of such Access Equipment, plus an additional  charge of 5% of such cost for administrative cost recovery.  All such Access Equipment shall remain the property of Landlord. No additional locks  shall be allowed on any door of the Leased Premises, except for locks on interior Tenant files and  lockers, and Tenant shall not make or permit to be made any duplicate Access Equipment, except  those furnished by Landlord. Upon termination of this Lease, Tenant shall surrender to Landlord  all Access Equipment to the Leased Premises and give to Landlord the keys and/or combination  for all locks for safes, safe cabinets and vault doors, if any, remaining in the Leased Premises after  Tenant vacates the Leased Premises.  Section 4.6 TELECOMMUNICATIONS.  A. The following definitions are applicable to this section:  (i) "Telecom Equipment" means telephone, data cabling lines, internet  and any other communications equipment, all Connections (as defined below) and any  technological evolution or replacement thereof.  31  EXECUTION VERSION  (ii) "Connections" means any wires, cables, fiber optic lines, antennas,  switches and other equipment or infrastructure located in the Building, but outside the Leased  Premises, that are installed by or on behalf of Tenant for, or related to, the operation of other  Telecom Equipment. All Connections are also Telecom Equipment.  (iii) "Telecom Provider" means a provider of Telecom Equipment or  services using Telecom Equipment.  (iv) "Telecom Services" means services provided by a Telecom Provider  using Telecom Equipment.  (v) "Wi-Fi" is a registered name by the Wi-Fi Alliance. It is short for  wireless fidelity, which is a term developed by the Wi-Fi Alliance to describe wireless local area  network products that are based on the Institute of Electrical and Electronics Engineers ("IEEE")  802.11 standards.  (vi) "WiMax" is short for worldwide interoperability for microwave  access, and refers to the IEEE 802.16 standard to provide a wireless coverage without a direct line  of sight to a base station.  B. Tenant may not use the services of a Telecom Provider whose equipment is  not then-servicing the Building or who is not otherwise reasonably acceptable to Landlord, nor  may Tenant require or request that a Telecom Provider materially expand the Telecom Services or  Connections it currently provides or has provided in or to the Building, without first securing the  prior written approval of Landlord, which approval will not be unreasonably withheld, conditioned  or delayed. Without limitation of the foregoing, it will be reasonable for Landlord to refuse to give  its approval with respect to a new Telecom Provider, or the material expansion of the Telecom  Services or Connections provided by or installed by an existing Telecom Provider in the Building,  if Landlord reasonably determines that there is insufficient space in the Building for the placement  of the Telecom Provider's Telecom Equipment. Tenant's Telecom Provider must execute and  deliver to Landlord a license agreement in form satisfactory to Landlord regarding the installation  and/or operation of the Telecom Provider's Telecom Equipment in the Building and outside the  Leased Premises prior to such Telecom Provider commencing any installation or other work in the  Building. Landlord will bear no responsibility for (and the Commencement Date will not be  affected by) delays in installing Telecom Equipment resulting from failure of Tenant's Telecom  Provider to execute and deliver such agreement to Landlord prior to the commencement of any  installation or other work in the Building. Both Tenant and its Telecom Provider(s) will comply  with all reasonable rules, regulations and requirements of Landlord regarding use of the existing  Building conduits and pipes or use of contractors.  Notwithstanding the provisions of the immediately preceding paragraph of Section 4.6B,  provided Landlord has received all reasonably required information concerning Tenant's proposed  Telecommunications facilities to be installed in the Leased Premises (or elsewhere) by February  1, 2022, the Landlord shall use its reasonable best efforts within fifteen (15) days thereafter to  approve the Tenant's preferred Telecom Provider, the Telecom Provider's Telecom Equipment,  all Connectors and Telecom Services desired by the Tenant.  32  EXECUTION VERSION  





 






C. Tenant will not use any Telecom Equipment (other than usual and  customary mobile telephones, customary Wi-Fi internet technology and wire-based telephone and  internet technology), including WiMax systems, antennae and satellite dishes, within the Leased  Premises and/or within or on the Building without Landlord's prior written consent. Such consent  shall not be unreasonably withheld, conditioned or delayed, except reasonable conditions may be  imposed so as to protect Landlord's financial interests and the interests (including efficient  function and aesthetics) of the Building. To the extent that Tenant installs a Wi-Fi network serving  the Leased Premises, Tenant will be solely responsible for securing such network against  unauthorized use, and Tenant waives any claim against Landlord arising out of any unauthorized  use by any party. If such Wi-Fi network causes any interference with the networks or other  activities of other tenants or occupants of the Building, promptly after Tenant is aware of such  interference, Tenant will take reasonable steps to eliminate such interference. Tenant shall not  install any equipment on the Building's roof; provided, however, should Tenant ever want to install  any equipment on the Building's roof, Tenant shall request Landlord's permission to install such  equipment. Landlord, in its sole discretion, shall either permit or deny such request.  D. Tenant or Tenant's Telecom Provider will provide Landlord with plans and  specifications of the installation, modification or removal of the applicable Telecom Equipment,  and Landlord will have approved such plans and specifications, before any installation,  modification or removal of such Telecom Equipment commences. Within thirty (30) days after  installation, modification or removal of any Telecom Equipment, Tenant will, at its expense,  prepare or have prepared and delivered to Landlord reproducible as-built plans and drawings (in  form and detail reasonably satisfactory to Landlord) of the location of all Telecom Equipment  serving the Leased Premises an\! located in the Building.  E. Tenant acknowledges and agrees that all Telecom Equipment installed and  used solely for and by Tenant will be obtained, installed, maintained, repaired, replaced and  removed at the sole expense of Tenant, provided, however, that Tenant shall have the right to apply  a portion of the tenant improvement allowance to low voltage cabling and other expenses arising  from installer's Telecom Equipment provided Landlord approves such allocation. Unless Landlord  otherwise requests or consents in writing, all of Tenant's Telecom Equipment (other than any  Connections) will be and remain solely in the Leased Premises in accordance with any reasonable  and consistently applied rules and regulations adopted by Landlord from time to time. Except as  caused as a result from the willful misconduct or gross negligence of Landlord, Landlord will have  no responsibility for the operation, maintenance, repair or replacement of Tenant's Telecom  Equipment, including, without limitation, Tenant's Connections. Tenant agrees that, to the extent  any Telecom Services are interrupted, curtailed or discontinued, Landlord (except in the instance  of Landlord's misconduct or negligence) will have no obligation or liability with respect thereto,  and it will be the sole obligation of Tenant at its expense to obtain substitute Telecom Services.  No approval by Landlord under this section will be deemed any kind of warranty or representation  by Landlord, including, without limitation, any warranty or representation as to the suitability,  competence or financial strength of any Telecom Provider or the quality or fitness for any particular  purpose of any Telecom Equipment or Telecom Services. Landlord does not make, and expressly  disclaims, any representation, warranty or endorsement regarding or relating to any Telecom  Provider, Telecom Services or Telecom Equipment. Tenant shall be responsible for the security of  its network and all data available thereon, and except as caused as a result from the willful  misconduct or gross negligence of Landlord, Landlord disclaims all responsibility and liability  33  EXECUTION VERSION  therefor and makes no representation or warranty with respect to the extent or efficacy of any  Telecom Equipment or Telecom Services.  F. Landlord shall not have the right to interrupt Tenant's Telecom Services or  disable Tenant's Telecom Equipment, except in the event of emergency or in a non-emergency  situation only following three (3) business days prior notice and with Tenant's consent not to be  unreasonably withheld, conditioned or delayed as reasonably necessary in connection with repairs  to the Building or installation of Telecom Equipment for other tenants or occupants of the Building  provided that Landlord shall take all reasonable steps to minimize the extent and duration of any  such interruption. In the event of an emergency, in which case Landlord will provide Tenant as  much advance notice as reasonably possible. Landlord will exercise commercially reasonable best  efforts to perform any scheduled interruptions during non-business hours.  G. In the event that Telecom Equipment, including, without limitation, wiring,  cabling or satellite and antenna equipment of any type installed by or at the request of Tenant  within the Leased Premises, on the roof or elsewhere within or on the Building causes interference  to equipment (including Telecom Equipment) used by another party, Tenant will be responsible  for, and indemnify and defend Landlord against, all liability caused by Tenant (but not to the extent  caused by the willful misconduct of Landlord or gross negligence of Landlord) related to such  interference. Tenant will use reasonable efforts, and will cooperate with Landlord and other  parties, to promptly eliminate such interference. In the event that Tenant is unable to eliminate  such interference, Tenant will substitute alternative equipment. If such interference persists after  such alternative equipment is installed, Tenant will discontinue or otherwise appropriately limit  the use of its Telecom Equipment as necessary to discontinue such interference, and, at Landlord's  discretion, remove such Telecom Equipment according to specifications required by Landlord.  Landlord covenants that each and every tenant lease in the Building shall contain covenants related  to interference arising from Telecom Equipment substantially similar to Tenant's covenants, for  the benefit of Tenant.  H. Prior to the expiration or earlier termination of the Term or promptly  thereafter, Tenant will remove any and all Telecom Equipment (except that Tenant shall not be  required to remove cabling) installed in the Leased Premises or elsewhere in the Building by or on  behalf of Tenant, including all Connections once the Telecom Equipment is no longer in use. At  Tenant's sole cost, if Tenant fails to remove such equipment, and if Landlord so elects, but only  following fifteen (15) days' written notice to Tenant, Landlord may perform such removal at  Tenant's sole cost, with the reasonable actual cost thereof to be paid to Landlord as Additional  Rent. Landlord will have the right, however, upon written notice to Tenant, given prior to the  expiration or earlier termination of the Term, to require Tenant to abandon and leave in place,  without additional payment to Tenant or credit against Rent, any and all Connections or selected  components thereof, whether located in the Leased Premises or elsewhere in the Building. The  terms and conditions of this subsection (H) will survive expiration or earlier termination of this  Lease.  Section 4.7 PARKING.  A. At all times during the Term, Tenant may elect to lease (subject to the terms  hereinafter set forth) parking rights in an amount up to the Base Allocation (as set forth in the  34  EXECUTION VERSION  Lease Summary) twenty-four (24) hours a day I seven (7) days a week (collectively, the "Parking  Permits"), and Landlord shall furnish such elected Base Allocation parking rights or portion  thereof as elected. Except as expressly set forth herein, no specific spaces in the Garage are to be  assigned to Tenant, but Landlord will issue to and as requested by Tenant the aforesaid number of  Parking Permits (in the form of parking stickers, placards, and/or cards) authorizing parking in the  Garage for a single vehicle per Parking Permit. Landlord may provide any reasonable means of  identifying and controlling vehicles authorized to be parked in the Garage and may designate the  area within which each such vehicle may be parked, and Landlord, except as expressly set forth  herein, may change such designations from time to time, provided such changes are consistently  applied to all tenants at the Project. Notwithstanding any term or provision of this Lease to the  contrary, Parking Permits shall not be assigned or sublet by Tenant or by any Permitted Transferee  (defined below) or other assignee or sub lessee permitted by Landlord under this Lease independent  of Tenant's leasehold interest under this Lease.  B. Against the Base Allocation, Tenant may reserve up to a total of three (3)  parking Spaces in the Garage for Tenant's employees (the "Reserved Parking" or "Reserved  Parking Spaces"). The initial allocation of total Parking Permits shall be chosen by Tenant in  advance of the Commencement Date (and if Tenant fails to do so, Tenant shall initially have no  Reserved Parking), but Tenant may change its number and allocation of Parking Permits, subject  to the limits of this section, upon no less than sixty (60) days' advance written notice to Landlord;  provided, however, that Tenant shall only be required to provide ten (10) business days' advance  written notice to Landlord in order to increase or decrease its number of Parking Permits related  to the onboarding or off-boarding of employees. For clarification, in no event shall the total  number of Parking Permits available to Tenant (and Tenant's employees, agents, visitors and  invitees) exceed the Base Allocation.  C. In addition to the Reserved Parking Spaces described in Subsection B  above, Tenant and its clients or customers shall also be allowed access to and use of parking spaces  in a dedicated area of the parking plaza serving the Project in common with other retail tenant(s)  of the Building on terms no less favorable than other such retail tenants. Landlord shall also engage  a commercial parking valet service to provide valet parking services for Tenant's clients, customers  or other guests in common with other tenants and/or occupants of the Building and/or Project, such  valet parking to be available to Tenant's customers on terms no less favorable than terms provided  to any other tenants or occupants of the Building and/or Project.  D. As rental for the Parking Permits ("Parking Rental"), Tenant covenants and  agrees to pay Landlord, as Additional Rent hereunder, $115 for non-reserved parking per Parking  Permit per month during the first calendar year of the Initial Term, and $175 per Parking Permit  for Reserved Parking spaces per month during the first calendar year of the Initial Term. Parking  Rental may be adjusted periodically after the first calendar year of the Initial Term as determined  by the Manager of the Parking Garage. Tenant may convert up to five (5) of its non-reserved  Parking Permits to not more than five (5) Reserved Permits. Parking Rental rates (including for  Reserved Parking) set forth herein are inclusive of applicable taxes and shall be payable monthly  in advance on the first day of each and every month during the Term, and a pro rata portion of such  sum shall be payable for any partial calendar month in the event this Lease commences (or ends)  on a date other than the first (or last) day of a calendar month. Tenant's obligation to pay the  35  EXECUTION VERSION  Parking Rental shall be considered an obligation to pay Rent for all purposes hereunder and shall  be secured in like manner as is Tenant's obligation to pay Rent.  E. Landlord's providing of parking in accordance with this Section 4. 7 is a  material inducement for Tenant's execution and performance of this Lease, and Tenant reserves all  rights and remedies available to it at law or in equity in the event such parking is not provided for  Tenant.  F. Landlord or the operator of the Garage may make, modify and enforce  reasonable rules and regulations relating to the parking of vehicles in the Garage so long as such  rules and regulations do not materially impair Tenant's parking privileges described in this Section  4.7, and Tenant shall abide by such rules and regulations and shall cause its employees, agents,  invitees, and visitors to abide by such rules and regulations. Additionally, Landlord reserves the  right to alter the size of the Garage, provided that such alterations do not decrease the number of  Parking Permits Landlord is obligated to provide to Tenant in the Garage and, provided further,  that such changes do not materially impair Tenant's parking privileges described in this Section  4.7.  Section 4.8 PEACEFUL ENJOYMENT. Tenant shall, and may peacefully have, hold  and enjoy the Leased Premises, and the other rights provided for Tenant under this Lease, subject  to the other terms hereof, provided that Tenant pays the Rent and performs all of Tennant's  covenants and agreements contained in this Lease and no Event of Default has occurred beyond  all applicable notice and cure periods in the Lease, and Landlord agrees to defend such title to  Tenant's interest in the Leased Premises as to any person lawfully claiming the same by, through  or under Landlord, but not otherwise. It is understood and agreed that this covenant and any and  all other covenants of Landlord contained in this Lease shall be binding upon Landlord and its  successors only with respect to breaches occurring during its and their respective ownerships of  Landlord's interest hereunder.  Section 4.9 RIGHTS RESERVED BY LANDLORD. Tenant shall permit Landlord and  its agents and representatives to enter into and upon any part of the Leased Premises upon at least  24 hours advanced written notice at all reasonable hours (except for emergencies and Tenant  approved routine cleaning as set forth in Exhibit "G" for which such entry may be made at any  time and without notice) to inspect the same, clean or make repairs, alterations or additions thereto,  fulfill any other obligations under this Lease, to avail itself of remedies for an Event of Default,  and to show the same to prospective tenants (but as to prospective tenants, only during the last 3  months of the Term), mortgagees, and purchasers as Landlord may deem necessary or desirable.  Landlord shall comply with Tenant Security Requirements, as set forth in Section 9.3, below.  Additionally, Landlord shall have the right, from time to time, upon at least 24 hours advanced  written notice and without unreasonable interference with Tenant's use of the Leased Premises, to  decorate, to make repairs, alterations, additions, changes or improvements, whether structural or  otherwise, in and about the Project, or any part thereof other than the Leased Premises, and to enter  upon the Leased Premises to the extent necessary for such purposes. Landlord shall then, at its  sole cost and expense, repair and restore the Project and any affected portion of the Leased  Premises to the same condition as existed prior to such work. Landlord shall have the right to alter  or relocate entrances, passageways, doors, corridors, elevators, stairs, rest rooms, or other Project  common areas, provided such changes shall not have a material detrimental impact, as determined  36  EXECUTION VERSION  





 






by Tenant, upon its use and occupancy of the Leased Premises, and during the continuance of such  work, to temporarily close doors, entryways, public space and corridors in the Building, provided  that in all events Tenant shall have at least one access point to the Leased Premises on all floors of  the Leased Premises. Tenant shall not be entitled to any abatement or reduction of any sums due  under this Lease by reason of the foregoing activities, nor shall such activities be construed to be  an eviction of Tenant, a default by Landlord hereunder, or a breach of the covenant of quiet or  peaceful enjoyment.  Section 4.10 NAME OF BUILDING AND PROJECT. Tenant shall not use the name of  the Building or the Project for any purpose whatsoever, except to identify the location of the Leased  Premises in Tenant's address. Landlord shall have the right to change the name of the Building  and/or the Project, provided, however, in no event shall the name of the Building and/or Project  nor any signage on the exterior of the Building be used to advertise or otherwise promote a  Restricted Use as described in Section 2.6 hereof.  ARTICLEV.  IMPROVEMENTS, MAINTENANCE AND REPAIR, ALTERATIONS, AND SIGNAGE  Section 5.1 INITIAL LEASEHOLD IMPROVEMENTS. Tenant, at Tenant's sole cost  and expense (subject to the Tenant Improvement Allowance), shall begin construction and  installation of the Tenant Improvements pursuant to the provisions of Exhibit F immediately  following the Delivery Date. Landlord and Tenant agree to comply with all of the terms and  provisions of Exhibit F including, without limitation, the obligation of Tenant to pay, as Additional  Rent, all amounts due Landlord thereunder according to the payment procedures contained therein.  The Tenant Improvements, once made, shall be and become Landlord's property, except, for the  avoidance of doubt, the Tenant Improvements, for purposes of this Section 5.1, shall not include  Tenant's equipment, personal property, furniture, furnishings, trade fixtures, computers, and  information technology equipment.  Section 5.2 MAINTENANCE, REPAIRS AND REPLACEMENT BY LANDLORD.  Landlord shall keep, maintain, repair, replace and renovate, as necessary, the Land, Base Building,  Garage, Building Standard Improvements (including Building Standard components in the Leased  Premises, as well as Service Areas, General Common Areas and/or Common Areas) and all  hardscaping, landscaping and other improvements and betterments located on the Land in good,  clean and sanitary order and repair and condition consistent with First Class Standards at all times  during the Term and otherwise in a fashion consistent with or exceeding similar Class A+ office  developments in the Metro-Nashville Davidson County Central Business District; provided  however, in no event shall the foregoing require Landlord to install new facilities or building  components or systems or reconfigure, reconstruct or replace any building components or systems  due to changes in technology or standards after the date of this Lease.  "Base Building" means the Building Structural Components (defined below) and the Base  Building Systems (defined below) and specifically excludes any improvements or alterations to  the Building installed by or at the request of any tenant (including Tenant) or other occupant of  the Building and any leasehold improvements installed in space leased or held for lease in the  Building. "Building Structw-al Components" means the Building's foundation, exterior walls and  structural elements and members, basic concrete floor on each floor, exterior windows, curtain  37  EXECUTION VERSION  wall, glass and mullions, elevators and stairs, roof and roof membrane. "Base Building Systems"  means the sprinkler systems serving the Building and Leased Premises, mechanical, heating, air­ conditioning, electrical, security fire/life safety, interior lighting for common areas and exterior  lighting for building and plumbing systems (water and sewage) of the Base Building. All leasehold  improvements in the Leased Premises, other than the Base Building improvements, (the "Building  Standard Improvements"), which Building Standard Improvements shall be reflected in the Base  Building Specifications, will be maintained by Tenant or, at Tenant's request, by Landlord at  Tenant's expense which shall be an amount equal to Landlord's actual and reasonable cost plus an  additional charge of five percent (5%) of such cost for administrative cost recovery.  Section 5.3 DAMAGE TO PROJECT. Subject to the provisions of Section 6.3, at  Tenant's own cost and expense, and by use of a contractor or contractors approved in writing by  Landlord (such approval not to be unreasonably withheld, conditional or delayed), Tenant shall  repair or replace, in accordance with all Legal Requirements, any damage or injury (other than  reasonable wear and tear) done to the Leased Premises or any other portion of the Project caused  by Tenant or Tenant's employees, contractors, agents, invitees, or visitors, which repairs or  replacements must be made to the same or as good a condition as existed prior to such injury or  damage; provided, however, Landlord, at its option, but only following seven (7) business days'  written notice to Tenant excluding emergencies, may make such repairs or replacements, and  Tenant shall repay Landlord on demand the actual and reasonable cost thereof (plus a charge equal  to ten percent (10%) of such costs for administrative cost recovery, in such case Landlord shall  submit evidence of such costs to Tenant); further provided, however, if the repairs or replacements  are to be made to the Leased Premises and do not affect the Base Building or the Base Building  Systems or do not endanger persons or property, Landlord, at its option, shall only be permitted to  make such repairs or replacements as provided above if Tenant fails to complete such repair or  replacement within thirty (30) days after written demand from Landlord or such longer period as  is reasonably necessary to complete such repair or replacement so long as Tenant commences such  repair or replacement within such thirty (30)-day period and diligently and continuously thereafter  proceeds with such work.  Section 5.4 ALTERATIONS, ADDITIONS, AND IMPROVEMENTS.  A. Subsequent to and separate and apart from the initial Tenant Improvements  (other than minor cosmetic changes such as new paint or sign repairs), Tenant shall neither make  nor allow to be made any alterations, physical additions or improvements in or to the Leased  Premises, or place signs on or in the Leased Premises which are visible from outside the Leased  Premises, without first obtaining the prior written consent of Landlord. Notwithstanding the  foregoing, Landlord's consent shall not be unreasonably withheld, conditioned or delayed for  alterations, physical additions or changes to the Leased Premises provided such alterations,  physical additions or changes (i) do not detrimentally affect the Building structural, mechanical,  electrical, plumbing, heating, ventilating, air conditioning, life safety or other Base Building  components or Base Building Systems, (ii) are not visible from the exterior of the Leased Premises  or the Building, (iii) do not affect the exterior of the Building, (iv) do not affect the structure of the  Building or any public areas of the Project, (v) do not violate any provision of this Lease, (vi) do  not violate any Legal Requirements, (vii) will not interfere with the use and occupancy of any  other portion of the Project by any other tenant or occupant of the Project, (viii) are constructed in  a good and workmanlike manner using first-class construction materials and in accordance with  38  EXECUTION VERSION  this Lease, and (ix) when completed, will not cause the Leased Premises to be unsuitable for  general office use.  If Landlord consents to any alterations, improvements, or additions, or placement of signs,  (i) Tenant shall deliver to Landlord at least fifteen (15) days prior to commencement of  construction, and in all events prior to awarding a construction contract relating thereto, copies of  then-current plans and specifications of such alterations, improvements, or additions or placement  of signs and (ii) Landlord may impose such conditions with respect thereto as are commercially  reasonably, including without limitation, requiring Tenant to furnish Landlord with insurance  against liabilities which may arise out of such work, plans and specifications, and permits for such  work. Tenant shall furnish to Landlord any documents and information within Tenant's possession  or control requested by Landlord in connection with the exercise of its rights hereunder. Landlord  may hire outside consultants to review such documents and information furnished to Landlord,  and Tenant shall reimburse Landlord for the reasonable cost thereof, upon demand.  Notwithstanding the foregoing or anything in this Lease to the contrary, Tenant shall not make any  alterations, physical additions or improvements to the common corridors, "Service Areas",  "General Common Areas" or "Common Areas" (each as defined in the Applicable BOMA  Standard) without the prior written consent of Landlord, which consent may be withheld in  Landlord's sole discretion.  B. Without limiting the provisions of Exhibit F, the work necessary to make  any permitted alterations, improvements, or additions to the Leased Premises shall be done at  Tenant's expense by contractors chosen by Tenant and reasonably approved in writing by Landlord  (each such contractor hereinafter referred to as an "Outside Contractor"). All work performed by  an Outside Contractor shall be performed in a good and workmanlike manner and in compliance  with all Legal Requirements, Landlord's requirements set forth in Exhibit F. and all applicable  Project Rules. Tenant shall give Landlord at least ten (10) days' prior written notice before the  commencement of any work pursuant to this section. Additionally, it shall be Tenant's  responsibility to ensure that the Outside Contractor shall (i) conduct its work in such a manner so  as not to unreasonably interfere with any other construction occurring on or in the Project or with  the transaction of business in the Project; (ii) comply with such reasonable rules and regulations  applicable to all work being performed in the Project as may be promulgated from time to time by  Landlord; and (iii) maintain such insurance in full force and effect as may be reasonably requested  by Landlord or as required by Legal Requirements; and (iv) be responsible for reaching a  commercially reasonable agreement with Landlord as to any other usual and customary terms and  conditions for conducting its work. As a condition precedent to Landlord's approving the Outside  Contractor pursuant hereto, Tenant and the Outside Contractor shall deliver to Landlord such  assurances or instruments as Landlord may reasonably require to evidence the Outside  Contractor's compliance or agreement to comply with the provisions of clauses (i), (ii) and (iii) of  this subsection (B). Landlord retains the right to make periodic inspections to assure conformity  of the work of the Outside Contractor with the aforementioned rules and regulations and with the  plans and specifications approved by Landlord. Within thirty (30) days after substantial  completion of any work by Tenant involving more than $150,000 or more than 5% of the Rentable  Area of the Leased Premises in each instance, Tenant, at Tenant's cost and expense, shall furnish  Landlord "as-built" drawings (which drawings shall be provided in both tangible form and  electronic form, such as computer-aided design and drafting drawings) of such work and shall  cause the architect(s) and/or engineer(s) that performed services in connection with the work to  39  EXECUTION VERSION  prepare a report, certifying that the work constructed by any Outside Contractor materially  complies with the plans and specifications therefor as previously approved by Landlord. Each  Outside Contractor shall not perform and, upon the request of Landlord, (whether written or oral  however, Landlord agrees that such request shall be in writing to the extent practicable under the  circumstances and provided failure to notify contractor immediately will not result in damage to  person or property), shall either (i) cease to perform any activity that is disruptive to the conduct  of business within the Project or other tenants or occupants of the Project or (ii) alter its method  of performance of such activity as reasonably possible to ameliorate the disruption affect to the  Project and other tenants.  Notwithstanding the foregoing, Landlord's consent shall not be required for any cosmetic,  decorative or other non-structural alterations or improvements which Tenant intends to make to  the interior of the Leased Premises, including, without limitation, power and cabling to work  stations, carpet replacement and painting, which do not exceed a cost of $100,000.00 in any lease  year or $1,000,000.00 in the aggregate for the Term, and which do not require the issuance of a  building permit; provided, however, Tenant shall notify Landlord in writing thirty (30) days prior  to commencing any such alterations or improvements. Landlord shall have the right to reasonably  inspect and review Tenant's work on a periodic basis to insure compliance with this provision.  C. Except as may otherwise be agreed by Landlord in writing at the time of  Landlord's granting its consent, all such work, including additions, fixtures and improvements (but  excluding moveable office furniture and equipment and other personal property of Tenant) made  or placed in or upon the Leased Premises by either Tenant or Landlord shall be and become  Landlord's property at the termination of this Lease by lapse of time or otherwise, all without  compensation or payment to Tenant.  D. Subject to Tenant's rights to contest liens filed against the Leased Premises  or the Project as set forth in the next paragraph below, Tenant shall not allow any liens to be filed  against the Leased Premises or the Project in connection with the installation of Tenant's  Improvements in, or any repair or alteration work to, the Leased Premises performed by Tenant or  an Outside Contractor. If any such liens shall be filed, Tenant shall cause the same to be released  within thirty (30) days after the filing thereof by bonding or other method acceptable to Landlord.  Subject to Tenant's rights to contest liens filed against the Leased Premises or the Project as set  forth in the Second paragraph below, if Tenant shall fail to timely cancel or discharge said lien or  liens as required above, Landlord, at its sole option, after five (5) days written notice of the  estimated charges to be discharged, may cancel or discharge the same and Tenant shall pay to  Landlord upon demand, Landlord's cost thereof plus a charge equal to 5% of such costs for  administrative cost recovery.  Tenant may, at its option, at its own expense and for its sole benefit, in its own name or, if  required by law, in the name of the Landlord, as the circumstances may require, before any  enforcement action is concluded, contest the validity or amount of any liens upon the Leased  Premises or Property by appropriate legal proceedings diligently conducted in good faith. Landlord  shall cooperate with Tenant in connection with any such proceedings at no expense or liability to  Landlord; provided, however, that in order for Tenant to contest the validity or amount of such  liens, Tenant shall have provided a good and sufficient undertaking as may be required or permitted  by law to accomplish a stay of any suit to enforce such liens and/or foreclosure of such liens or  40  EXECUTION VERSION  





 






shall have deposited into escrow with a trustee (which shall be a title insurance company, bank, or  trust company approved by Landlord), as security for the payment of such liens, either cash or a  cash substitute or a surety bond, in an amount sufficient to pay the liens, together with all interest  that might reasonably arise in connection therewith, and all charges that might reasonably be  assessed against or become a charge on the Leased Premises or Property, or any part thereof, in  legal proceedings.  If at any time the lien claimant is about to sell or foreclose upon the Leased Premises or  Property in an attempt to satisfy its liens, Landlord may make written demand on Tenant to pay  the contested liens, and Tenant shall promptly pay the liens. In the event Tenant shall fail to pay  the liens, after Landlord's demand, then Landlord may draw upon the undertaking deposited by  Tenant pursuant to the preceding paragraph and pay the same. Promptly upon the termination of  any such legal proceedings, Tenant shall pay any amounts due in respect of the contested liens.  Upon the termination of such legal proceedings, any monies deposited as herein above provided,  shall be applied to the payment, removal and discharge of the liens, if any, then payable and the  interest in connection therewith, and the charges accruing in such legal proceedings, and the  balance, if any, shall be paid to Tenant. In the event of any default by Tenant under this section,  Landlord is authorized to use any money deposited under this section to pay such liens.  Upon completion of any such work costing more than $5,000.00 in each instance, Tenant  shall deliver to Landlord evidence of payment, contractors' affidavits and full and final waivers of  all liens for, labor, services, or material. Tenant shall indemnify and hold harmless Landlord from  all losses, costs, damages, claims and expenses (including reasonable attorneys' fees and costs of  suits), liabilities or causes of action arising out of or relating to any alterations, additions or  improvements that Tenant or any Outside Contractor makes to the Leased Premises, including any  occasioned by the filing of any mechanic's, materialman's, construction or other liens or claims  (and all reasonable costs or expenses associated therewith) asserted, filed or arising out of any such  work. All materialmen, contractors, artisans, mechanics, laborers and other parties hereafter  contracting with Tenant for the furnishing of any labor, services, materials, supplies or equipment  with respect to any portion of the Leased Premises are hereby charged with notice that they must  look solely to Tenant for payment of same, and Tenant's purchase orders, contracts and  subcontracts in connection therewith must clearly state this requirement.  Landlord shall have the right at all times to post and keep posted on the Leased Premises  any notices permitted or required by Legal Requirements, 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 liens. Tenant acknowledges that Tenant's Improvements are being accomplished for  its own account, Landlord having no responsibility or obligation in respect thereof except as  otherwise set forth herein and Tenant agreeing that Tenant is not Landlord's agent for purposes of  Tenn. Code Ann. § 66-11-102( d), as in effect on the Effective Date. Landlord also may require  that Tenant execute and record a "Notice of Non Responsibility," or any equivalent notice which  provides that Landlord is not responsible for the payment of any costs or expenses relating to  Tenant's Improvements. Without limiting the generality of the foregoing, Tenant shall repair or  cause to be repaired at its expense all damage caused by any Outside Contractor, its subcontractors  or their employees. Tenant shall reimburse Landlord for any reasonable costs incurred by Landlord  to repair any damage caused by any Outside Contractor or any reasonable costs incurred by  Landlord in requiring any Outside Contractor's compliance with the rules and regulations.  41  EXECUTION VERSION  Additionally, Tenant shall reimburse Landlord for the reasonable out of pocket costs Landlord may  incur to have an engineer review all mechanical, structural, electrical, plumbing and life safety  systems installed by any Outside Contractor provided, however, that Landlord shall notify Tenant  in advance of the estimated cost for such review(s) prior to the commencement of such review(s).  E. During the Term, Tenant shall have the right, at Tenant's sole cost and  expense, to install and maintain signage with Tenant's name, tradename or logo on or immediately  adjacent to the entrance door or doors to the Leased Premises and anywhere within any full floor  of the Leased Premises that is located entirely on a single floor of the Building; provided, however,  that Tenant's right to install and maintain such signage shall be subject to (i) Tenant's review and  Landlord's prior written approval with respect to the dimensions, material, content and design of  such signage, which approval shall not be unreasonably withheld, conditioned or delayed; and (ii)  all applicable Legal Requirements.  Landlord, at Tenant's cost (prorated among all tenants in the directory), shall maintain a  physical directory of office tenants in the lobby area of the Building during the Term, and Tenant  shall have the right to have its name listed on such directory in a similar style and fashion as  allowed other tenants leasing space of similar size. Landlord shall provide space on the ground  floor monument sign.  If Tenant grows to occupy four (4) full floors in the Building and "top of building'', signage  has not been granted to any other tenant, then Landlord will offer Tenant the ability to lease the  "top of building" signage. Tenant will pay $100,000 per annum in additional rent for such signage  and will be responsible for the cost of fabricating/installing such signage. Landlord has sole  discretion and approval rights of the location, size, color, material composition, and plans and  specifications of Tenant's signage.  To the extent Landlord maintains a searchable electronic directory of office tenants in the  lobby area of the Building during the Term, Tenant shall have the right to have its name listed in  prominent fashion as consistent with other tenants occupying a full floor of space and/or leasing  space of similar size on such directory and its' executives' names (within thirty (30) days of  Tenant's provision of the same to Landlord, from time to time, but not earlier than Landlord's  installation of such electronic directory) included in such directory for searching purposes.  ARTICLE VI.  INSURANCE, CASUALTY AND CONDEMNATION  Section 6.1 INSURANCE REQUIREMENTS.  A. Landlord shall maintain fire and extended coverage insurance on the entire  Project (excluding leasehold improvements and the personal property of tenants) and on the  Building Standard Improvements in an amount not less than the full insurable value (on a  replacement cost basis) thereof above the foundation. Such insurance shall be maintained at the  expense of Landlord (which expense is to be included in Operating Expenses) with an insurance  company authorized to insure properties in the State of Tennessee. All payments for losses  thereunder shall be made solely to Landlord. If the annual premiums to Landlord for such casualty  insurance exceed the standard premium rates because of the nature of Tenant's operations, contents  42  EXECUTION VERSION  or improvements beyond Building Standard Improvements or because the same result in extra­ hazardous exposure, then Tenant shall, upon receipt of copies of appropriate premium invoices  from the insurance company which properly itemize premium charges and verify the amount of  such excess premium attributable specifically and solely to above standard aspects of Tenant's  operation, contents or improvements, promptly reimburse Landlord for such increases in such  premiums.  B. Landlord shall maintain commercial general liability insurance covering its  exposures to third party claims of bodily injury, death or property damage arising out of its  ownership and operation of the Project. Subject to any other express provision of this Lease,  Landlord will assume no liability for incidents that occur in or upon the Leased Premises, nor from  the ingress or egress of guests, suppliers, contractors or others associated with Tenant, unless such  injury or damage is the result of the willful misconduct or gross negligence of the Landlord found  to be the sole responsibility of Landlord. Landlord will purchase such commercial general liability  limits as it deems appropriate for its own business activities, but such limits shall be no less,  including the use of an excess or umbrella policy (at Landlord's sole option) than $5,000,000 each  claim for bodily injury and/or property damage with an annual aggregate of $5,000,000.  C. Throughout the Term, Tenant, at its sole cost and expense, shall obtain and  maintain in force comprehensive property insurance covering loss from any cause, except those  causes specifically excluded by a comprehensive business insurance policy and specifically  covering fire with extended coverage insurance (including, without limitation, coverage against  water damage, sprinkler flow and sprinkler leakage) and specifically insuring Tenant's interest in  its improvements (including Tenant Improvements) and betterments to the Leased Premises  performed by Tenant or for Tenant's account and any and all furniture, equipment, supplies and  other property owned, leased, held or possessed by it and contained therein, such insurance  coverage to be in an amount equal to the full insurable value of such improvements and property.  Landlord shall not be responsible for and shall not be obligated to insure against any loss of or  damage to any of Tenant's property described in this sub-section (B). All insurance required to  be maintained by Tenant under this paragraph shall be effected by valid and enforceable policies  (i) issued by insurance companies licensed to do business in the State of Tennessee with a general  policyholder's ratings of at least A- and a financial rating of at least VIII in the most current Best's  Insurance Reports available on the Commencement Date, or if the Best's ratings are changed or  discontinued, the parties shall agree to a comparable method of rating insurance companies; and  (ii) that state that such insurance shall not be canceled, non-renewed or coverage materially  reduced unless thirty (30) days advance written notice is provided to Landlord. On or before the  Commencement Date, and upon reasonable request thereafter, Tenant shall provide evidence of  the insurance required by this paragraph on a form acceptable to Landlord. If Tenant fails to  provide Landlord with such certificates or other evidence of insurance coverage within fifteen ( 15)  days after Landlord's written demand for same, Landlord may obtain such coverage and Tenant  shall reimburse the cost thereof on demand.  D. Throughout the Term, Tenant, at its sole cost and expense, shall obtain and  maintain in force a policy or policies of (i) worker's compensation insurance satisfying statutory  requirements; (ii) Commercial General Liability Insurance (1986 ISO Form or its equivalent  including liquor liability provision) in the amount of $2,000,000 per occurrence and $2,000,000  general aggregate, which policy shall insure against claims for bodily injury, death or property  43  EXECUTION VERSION  damage occurring in, on or about the Leased Premises; (iii) automobile liability insurance covering  owned, hired and non-owned vehicles with liability limits of not less than $2,000,000, coverage  for each occurrence and in the aggregate; and (iv) Fire Damage Liability in the amount of  $500,000, which policy shall insure against claims for property damage occurring in, on or about  the Leased Premises; provided, however~ that Tenant shall carry such greater limits of coverage  as Landlord or Landlord's mortgagee may reasonably request, from time to time, if such limits are  customarily carried by office tenants in first class office buildings in Nashville, Tennessee and does  not require payment of rates per thousand of coverage greater than the base rate paid for such  coverage. All insurance required to be maintained by Tenant under this paragraph shall (i) be  effected by valid and enforceable policies issued by insurance companies licensed to do business  in the state in which the Premises are located with a general policyholder's ratings of at least A­ and a financial rating of at least VIII in the most current Best's Insurance Reports available on the  Commencement Date, or if the Best's ratings are changed or discontinued, the parties shall agree  to a comparable method ofrating insurance companies, (ii) name Landlord, Landlord's mortgagee,  and Landlord's managing agent as additional insureds, (iii) be primary, and any liability insurance  policy maintained by Landlord, if any, shall be secondary and contain a severability of interest  clause for all additional insured with no cross suits liability exclusion, and (iv) state that such  insurance shall not be canceled, non-renewed or coverage materially reduced unless thirty (30)  days advance written notice is provided to Landlord. On or before the Commencement Date, and  upon reasonable request thereafter, Tenant shall provide evidence of the insurance required by this  paragraph on a form reasonably acceptable to Landlord. If Tenant fails to provide Landlord with  such certificates or other evidence of insurance coverage within fifteen (15) days after Landlord's  written demand for same, Landlord may obtain such coverage and Tenant shall reimburse the cost  thereof on demand.  Section 6.2 HOLD HARMLESS. Landlord, its owners, directors, officers, managers,  representatives, agents, servants and employees shall not be liable to Tenant, or to Tenant's owners,  directors, officers, managers, agents, servants, employees, customers or invitees, for any damage  to person or property caused by any act, omission or neglect of Tenant, its owners, directors,  officers, managers, agents, servants and employees, and Tenant agrees to indemnify and hold  harmless Landlord from all claims or liability and for any such damage. Tenant, its owners,  officers, directors, managers, representatives, agents, servants and employees shall not be liable to  Landlord, or to Landlord's owners, directors, officers, managers, agents, servants, employees,  customers or invitees, for any damage to person or property caused by any act, omission or neglect  of Landlord, its owners, directors, officers, managers, agents, servants and employees, and  Landlord agrees to indemnify and hold harmless Tenant from all claims or liability for such  damage. The indemnifications granted by each of Landlord and Tenant herein are subject to any  express provisions to the contrary in this Lease.  Section 6.3 WAIVER OF SUBROGATION RIGHTS. Anything in this Lease to the  contrary notwithstanding, Landlord and Tenant each hereby waive any and all rights of recovery,  claim, action or cause of action, against the other, its agents (including partners, both general and  limited), officers, directors, shareholders, customers, invitees, or employees, for any loss or  damage that may occur to the Leased Premises, or any improvements thereto, or the Project, or  any improvements thereon, or any personal property of such party therein, by reason of fire, the  elements or any other cause which is or is required to be insured against under this Lease,  regardless of cause or origin, including negligence of the other party hereto, its agents, partners,  44  EXECUTION VERSION  





 






shareholders, officers, directors, customers, invitees or employees, and covenants that no insurer  shall hold any right of subrogation against such other party. Landlord and Tenant shall advise  insurers of the foregoing waiver and such waiver shall be a part of each policy maintained by  Landlord and Tenant.  Section 6.4 DAMAGES FROM CERTAIN CAUSES. Except for Landlord's willful  acts or omissions, or gross negligence, failure to discharge its maintenance, repair or replacement  obligations or a breach of Landlord's express warranty obligations hereunder, and subject to the  other express provisions of this Lease, Landlord shall not be liable or responsible to Tenant for any  loss or damage to any property or person occasioned by theft, fire, casualty, vandalism, acts of  God, public enemy, injunction, riot, strike, inability to procure materials, insurrection, war, court  order, requisition or order of governmental body or authority, or for any other causes beyond  Landlord's reasonable control, or for any damage or inconvenience which may arise through repair  or alteration of the Leased Premises, Building, or the Project; provided, however, subject to the  provisions of Section 4.4(C) above, Landlord shall not be liable or responsible for any  inconvenience or interruption in the conduct of Tenant's business, unless such inconvenience or  interruption results from Landlord's willful acts or omissions or negligent acts.  Section 6.5 CASUALTY.  A. In the event of a fire or other casualty in the Leased Premises, Tenant shall  promptly give notice thereof to Landlord upon becoming aware thereof. If the Leased Premises is  damaged or destroyed by fire or other casualty so as to render the Leased Premises untenantable  in whole or in part, Rent shall abate equitably thereafter as to the portion of the Leased Premises  rendered untenantable (based upon the square footage of Rentable Area rendered untenantable)  until the earlier to occur of (i) the later to occur of (x) the date Landlord substantially completes  that portion of the Base Building and the Building Standard Improvements so damaged that is  necessary to make the Leased Premises tenantable, or (y) ninety (90) days after the date Tenant is  permitted to commence and prosecute repair of its leasehold improvements for the portion of the  Leased Premises so damaged without material interference from Landlord, or (ii) the date the  Leased Premises are made tenantable. Notwithstanding the foregoing, if the fire or other casualty  is the result of Tenant's negligence or willful misconduct or the negligence or willful misconduct  of Tenant's agents, employees, contractors, invitees, licensees, sublessees or assignees, Rent shall  not abate. Landlord agrees to commence and prosecute repair of the Building Standard  Improvements promptly and diligently, and Tenant agrees to commence and prosecute repair of its  leasehold improvements promptly and diligently, subject in each case to delays for insurance  adjustments and delays caused by Force Majeure events, zoning laws and building codes then in  effect, and to the termination rights set forth below. In the event any portion of the Project is  damaged by fire or other casualty, and if such damage is such that Landlord cannot reasonably be  expected to substantially complete its repair work within one hundred eighty (180) days after the  date of casualty, as reasonably estimated by a responsible contractor selected by Landlord, then  Landlord shall have the right to terminate this Lease and all Rent owing under this Lease up to the  time of such destruction or termination shall be paid by Tenant and thenceforth this Lease shall  cease. Landlord shall give Tenant written notice of its decisions, estimates or elections under this  section within sixty (60) days after any such damage or destruction (the "Determination Period").  In the event any portion of the Leased Premises is damaged by fire or other casualty, or if any other  portion of the Project is damaged as would render the continuance of Tenant's business from the  45  EXECUTION VERSION  Leased Premises impracticable (as reasonably determined by Tenant), and if such damage is such  that Landlord cannot reasonably be expected to substantially complete its repair work of the  Building Standard Improvements within the Leased Premises within one hundred eighty (180)  days after the date of the casualty to the extent necessary to allow Tenant to commence repair of  its leasehold improvements, as reasonably estimated by a responsible contractor selected by  Landlord, and Landlord has not terminated this Lease as herein provided, then Tenant shall have  the right, within thirty (30) days after Landlord delivers the estimate to Tenant of time to restore,  to terminate this Lease by giving written notice of termination to Landlord, failing which Tenant  shall have waived its right to so terminate the Lease pursuant to this sentence. Notwithstanding  anything to the contrary contained in this section, if at the time of any damage to the Leased  Premises or to the Project which materially affects Tenant's access to or use of the Leased Premises  and requires more than thirty (30) days to repair, less than 1 year remains in the Term, then  Landlord or Tenant shall have the right to terminate this Lease. Notwithstanding anything to the  contrary in this section, Landlord shall be obligated to restore or rebuild only the portion of the  Leased Premises that consists of Building Standard Improvements and only to the condition that  existed immediately prior to the casualty, and nothing herein shall be construed to obligate  Landlord under any circumstances to repair or restore any of Tenant's leasehold improvements  (including the Tenant Improvements) in excess of Building Standard Improvements. Further  notwithstanding anything herein to the contrary, in the event the holder of any Encumbrance  (defined below) requires that any portion of insurance proceeds be paid to it such that Landlord,  in Landlord's sole discretion, would be unable to adequately complete restoration or repair work,  then Landlord shall have the right to terminate this Lease by delivering written notice of  termination to Tenant within thirty (30) days after such requirement is made by any such holder,  whereupon this Lease shall end on the date of the occurrence of such casualty as if the date of the  occurrence of such casualty were the date originally fixed in this Lease for the expiration of the  Term. If any such casualty stated in this section occurs, Landlord shall not be liable to Tenant for  inconvenience, annoyance, loss of profits, expenses or any other type of injury or damage resulting  from the repair or restoration of any damage caused by such casualty, from any repair,  modification, arranging or rearranging of any portion of the Leased Premises or any part or all of  the Project or from the termination of this Lease as provided in this section; provided, however,  that Landlord shall use commercially reasonable efforts exercised in good faith to minimize any  inconvenience and interference with Tenant's business operations and use and occupancy of the  Leased Premises in connection with Landlord's repair or restoration of the Base Building and  Building Standard Improvements.  B. Tenant shall promptly report to Landlord in writing any damage to or  defective condition in or about the Project or Leased Premises as and when known to Tenant.  Section 6.6 CONDEMNATION.  A. If (i) all or substantially all of the Leased Premises or of the Project is  permanently taken or condemned for any public purposes, or (ii) such portion of the Leased  Premises or portion of the Building as would render the continuance of Tenant's business from the  Leased Premises impracticable, is permanently taken or condemned for any public purpose, then  this Lease, at the option of Tenant upon the giving of notice to Landlord within thirty (30) days  from the date Tenant received written notice of such condemnation or taking, shall cease and  terminate as described in subsection (C) below.  46  EXECUTION VERSION  B. If all or substantially all of the Project, or so much thereof as to cause the  remainder not to be economically feasible to operate, as reasonably determined by Landlord  (including, without limitation a determination based upon Landlord's failure to receive  condemnation awards or proceeds sufficient to repair the Project as required by this section, is  permanently taken or condemned for any public purpose, then this Lease, at the option of Landlord  upon the giving of notice to Tenant within thirty (30) days from the date Landlord received written  notice of such condemnation or taking, shall cease and terminate as described in subsection (C)  below.  C. If this Lease is terminated pursuant to either subsection (A) or (B) above,  this Lease shall cease and expire as if the date of transfer of possession of the Leased Premises,  the Project, or any portion thereof to the condemning authority, was the expiration date of this  Lease. In the event that this Lease is not terminated by either Landlord or Tenant as aforesaid,  Landlord shall, to the extent practical, restore the Leased Premises or Project (as the case may be)  to the condition of same prior to such taking. Landlord shall diligently and continually prosecute  such repair and restoration of the Leased Premises, or Project, or both (as the case may be), and  endeavor to complete restoration of same as soon as reasonably possible under the circumstances,  and Landlord shall restore same to an integrated, architectural whole to the extent of any  condemnation award received by Landlord. With respect to that portion of the Leased Premises  which is so taken or condemned, Tenant shall pay the Base Rental and all other Rent up to the date  of transfer of possession of such portion of the Leased Premises so taken or condemned, and this  Lease shall thereupon cease and terminate with respect to such portion of the Leased Premises so  taken or condemned as if the date of transfer of possession of the Leased Premises was the  expiration date of the Term relating to such portion of the Leased Premises. Thereafter, the Base  Rental and Tenant's Percentage Share shall be calculated based on the remaining Rentable Area of  the Leased Premises not so taken or condemned.  D. In the event any taking or condemnation for any public purpose of the  Leased Premises or any portion thereof occurs for one hundred eighty (180) days or less, then it  shall be deemed a temporary taking, and this Lease shall continue in full force and effect, except  that Base Rental and Tenant's Percentage Share shall be calculated based on the Rentable Area of  the Leased Premises not so taken for the period of time that the Leased Premises are so taken,  Landlord shall be entitled to the proceeds of such taking, and Landlord shall be under no obligation  to make any repairs or alterations to the portion so taken.  E. If any such taking or condemnation stated in this section occurs, Landlord  shall not be liable to Tenant for inconvenience, annoyance, loss of profits, or expenses from any  repair, modification, arranging or rearranging of any portion of the Leased Premises or any part or  all of the Project or from the termination of this Lease as provided in this section; provided,  however, that Landlord shall use commercially reasonable efforts exercised in good faith to  minimize any inconvenience and interference with Tenant's business operations and use and  occupancy of the Leased Premises in connection with Landlord's repair or restoration of the Base  Building and Building Standard Improvements, as applicable.  F. All proceeds from any taking or condemnation of the Premises shall belong  to and be paid to Landlord; provided, however, that Tenant shall be entitled to the portion of any  award for Tenant's unamortized leasehold improvements (such amortization to be made on a  47  EXECUTION VERSION  straight-line basis over the Term) and further provided that Tenant may pursue a separate award  from the condemning authority for (i) relocation and moving expenses, (ii) compensation for loss  of Tenant's business, and (iii) loss of Tenant's personal property.  G. Notwithstanding anything herein to the contrary, in the event the holder of  any Encumbrance requires that any portion of any award to Landlord be paid to it such that  Landlord, in Landlord's reasonable discretion, would be unable to adequately complete restoration  or repair work, then Landlord shall have the right to terminate this Lease by delivering written  notice of termination to Tenant within one hundred twenty (120) days after such requirement is  made by any such holder, whereupon this Lease shall end on the date of the occurrence of such  taking or condemnation as if the date of the occurrence of such taking or condemnation were the  date originally fixed in this Lease for the expiration of the Term.  ARTICLE VII.  ASSIGNMENT AND SUBLETTING  Section 7.1 ASSIGNMENT AND SUBLETTING BY TENANT.  A. Except as expressly set forth in this Section 7 .1 and in all events subject to  the terms and conditions of this Article VII, Tenant shall not, without Landlord's prior written  consent (which shall not be unreasonably withheld, conditioned or delayed), (i) assign, convey,  mortgage, pledge, encumber, or otherwise transfer (whether voluntarily, by operation of law, or  otherwise) this Lease or any interest hereunder; (ii) allow any lien to be placed upon Tenant's  interest hereunder; (iii) sublet the Leased Premises or any part thereof; or (iv) permit the use or  occupancy of the Leased Premises or any part thereof by anyone other than Tenant.  Notwithstanding the preceding subsection (iv), the Tenant shall however be allowed without  Landlord consent, to utilize outsourced service vendors which may occupy a portion of the Leased  Space (e.g. copy center services) to provide services internally to the Tenant but not to third parties.  Any attempt to consummate any of the foregoing without Landlord's consent shall be of no force  or effect and shall be an Event of Default under this Lease. For purposes hereof, the transfer of  the ownership or voting rights in a controlling interest of the voting stock or ownership interests  of Tenant, shall be deemed to be an assignment of this Lease.  Notwithstanding the foregoing provisions of this subsection (A), the consent of Landlord  shall not be required for any one of the following (each, a "Permitted Transfer"): (i) an assignment  of this Lease made in connection with the reorganization, merger or consolidation of Tenant with  and/or into any Affiliate; (ii) an assignment of this Lease made in connection with a sale or transfer  of a majority of the assets and liabilities of Tenant to an Affiliate (defined below) (a) where Tenant  is not the surviving entity; and (b) Landlord has determined, in its reasonable discretion, that such  assignee has sufficient credit and financial ability to fully comply with all of the obligations of  Tenant (including the payment of Rent) that such assignee seeks to assume from Tenant.  Any Permitted Transfer assignee, sublessee, or occupant is a "Pem1itted Transferee". At  least thirty (30) days prior to the effective date of any Permitted Transfer, Tenant agrees to furnish  Landlord with notice of such transfer, copies of the instruments effecting the same and financial  statements (including balance sheets and income statements) certified by any proposed assignee's  certified public accountants as true and accurate for the prior two (2) fiscal years and such interim  48  EXECUTION VERSION  





 






statements through the then-current fiscal period, all of which shall be in form and substance  satisfactory to Landlord in its reasonable discretion. Due to the confidential nature of the  information conveyed as required in Sections 7.1 A or B, the Landlord agrees to execute a  reasonable Confidentiality Agreement ("CDA") prior to the conveyance of confidential  information to the Landlord.  "Affiliate" means any person or entity controlling, controlled by, or under common control  with, another person or entity. "Control" means the possession, direct or indirect, of the power to  direct or cause the direction of the management and policies of such controlled person or entity.  B. If Tenant should desire to assign this Lease or sublet the Leased Premises  or any part thereof to a party other than a Permitted Transferee, Tenant shall give Landlord written  notice (the "Lease Notice") (which shall specify the proposed economic terms and duration of the  proposed sublease or assignment and shall contain information concerning the business, reputation  and creditworthiness of the proposed sublessee or assignee as shall be sufficient to allow Landlord  to form a commercially reasonable judgment with respect thereto) of Tenant's desire to sublease  or assign at least thirty (30) days in advance of the date on which Tenant desires to make such  sublease or assignment. Tenant shall provide Landlord with a copy of the proposed sublease or  assignment agreement; financial statements (including balance sheets and income statements)  certified by any proposed assignee's certified public accountants, to the extent available, as true  and accurate for the prior two (2) fiscal years and such interim statements through the then-current  fiscal period in the event of a proposed assignment; and any other reasonably relevant information  reasonably requested by Landlord, all as soon as possible thereafter (but in no event less than thirty  (30) days from Tenant's request contained in the Lease Notice). Landlord may reasonably consider  the following factors in connection with Tenant's request to sublease or assign for any sublease or  assignment requiring Landlord's consent (i) in connection with an assignment, any such assignee's  creditworthiness as reasonably determined by Landlord; (ii) whether the reputation of the proposed  assignee or sublessee, and whether the proposed assignee or sublessee is of a kind that, is that  customarily found in first-class office buildings in Nashville, Tennessee, as reasonably determined  by Landlord; (iii) whether such sublease or assignment violates any lease agreement with any other  tenant or potential tenant with which Landlord has entered into a lease or a letter of intent (as  applicable) in the Project, and (iv) whether the use of the Leased Premises by such proposed  assignee or sublessee is permitted under this Lease. Without limiting the foregoing, the following  shall not be considered as suitable assignees or sublessees: any governmental body, agency or  bureau (of the United States, any state, county, municipality or any subdivision thereof); any  foreign government or subdivision thereof; any health care professional or health care service  organization (provided, however, that this is not intended to exclude any health care consulting  business, executive or administrative offices of a hospital company or similar healthcare provider,  employment by Tenant of any health care professional in connection with Tenant's provision  support services to health care professionals or organizations); schools or similar organizations;  employment agencies other than executive or professional search and recruiting firms; radio,  television or other communication stations; restaurants; and retailers offering retail services from  the Leased Premises. Landlord must respond to Tenant's request for a sublease or assignment  requiring Landlord's consent hereunder within fifteen (15) business days after receipt of all of the  information required to be supplied by Tenant as set forth above. If Landlord disapproves of a  sublessee or assignee as permitted above, Tenant shall not be permitted to effect the proposed  49  EXECUTION VERSION  sublease or assignment and this Lease shall continue in full force and effect without such sublease  or assignment in effect.  C. For any sublease or assignment that is approved by Landlord pursuant to  sub-section (A) or (B), the following shall apply and shall be conditions thereto:  (i) Each sublessee or assignee shall agree in writing to observe all  covenants of this Lease, and no consent by Landlord to an assignment or sublease shall be deemed  in any manner to be a consent to (x) a use other than the Permitted Use or (y) an assignment by  Tenant of any rights which are otherwise not assignable pursuant to other provisions of this Lease;  (ii) At the time of any such assignment or subletting, this Lease is in full  force and effect and there is no Event of Default under this Lease on the part of Tenant;  (iii) Any such assignment or subletting shall be subject to all the terms,  covenants and conditions of this Lease, and any assignee must assume in writing all the rights and  obligations of the assignor hereunder;  (iv) If the aggregate rent, bonus, or other consideration paid by the  assignee or sublessee pursuant to such space sublease or assignment exceeds the sum of (x) Rent  to be paid to Landlord by Tenant for such space during the applicable period and (y) the reasonable  out-of-pocket third party costs and expenses actually incurred by Tenant under or in connection  with such sublease or assignment (including without limitation, the costs for (1) brokerage  commissions paid by Tenant with regard to the transfer, (2) reasonable legal fees with regard to  the transfer, and (3) expenses of finishing out or renovation of the space involved (but specifically  excluding any charges payable to partners, shareholders or employees of Tenant in connection with  such sublease or assignment), and (4) free rent provided to an assignee or sublessee), then 50% of  such excess shall be paid to Landlord within fifteen ( 15) days after receipt by Tenant together with  all consideration received in connection with such assignment of any such excess. With any  payment made by Tenant to Landlord under this clause (iv), Tenant shall furnish Landlord with an  accounting prepared and certified to by Tenant of Tenant's determination of the sums owed to  Landlord hereunder, which accounting shall be executed by an officer of Tenant knowledgeable of  the facts stated therein that to the best of his or her knowledge such accounting of the sums owed  to Landlord under this clause (iv) has been determined in accordance with the provisions hereof;  (v) Except for a Permitted Transfer, no assignment or subletting by  Tenant shall relieve Tenant of any obligations or covenants under this Lease, and Tenant shall  remain fully liable hereunder, unless Landlord executes and delivers to Tenant a written release.  Notwithstanding the foregoing, in no event shall Tenant be released from any obligation with  respect to confidentiality or non-disclosure covenants in connection with a Permitted Transfer; and  (vi) A copy of the original sublease or assignment (and all amendments  thereto) shall be delivered to Landlord within a reasonable time but not less than fifteen (15) days  from the effective date thereof.  If the proposed sub lessee or assignee sublease or assignment is approved by Landlord and  Tenant fails to enter into the approved sublease or assignment with the approved sublessee or  50  EXECUTION VERSION  assignee within one hundred eighty (180) days after the date Tenant submitted its Lease Notice to  Landlord, then Landlord's approval of the proposed sublease or assignment shall be deemed null  and void and Tenant must comply again with all of the conditions of this section.  D. Notwithstanding the giving by Landlord of its consent to any sublease or  assignment with respect to the Leased Premises, except for a Permitted Transferee, no sublessee  or assignee may exercise any termination options, renewal options, expansion options, rights of  first refusal, or similar rights under this Lease except in accordance with a separate written  agreement entered into directly between such sublessee or assignee and Landlord. The voluntary  or other surrender of the Leased Premises by Tenant or termination of this Lease by Tenant or  Landlord shall not work a merger, but, at Landlord's sole option, shall either terminate all existing  subleases or subtenancies or shall operate as an assignment to Landlord of all such subleases or  subtenancies.  E. Any attempted assignment or sublease by Tenant in violation of the terms  and covenants hereof shall be void and shall be an Event of Default under this Lease. Any consent  by Landlord to a particular assignment or sublease shall not constitute Landlord's consent to any  other or subsequent assignment or sublease, and any proposed sublease or assignment by a  sublessee or assignee of Tenant shall be subject to the provisions hereof as if it were a proposed  sublease or assignment by Tenant.  F. Notwithstanding anything to the contrary contained in this section, Tenant  shall not be permitted to sublease any portion of the Leased Premises or assign this Lease to any  tenant of the Building at the time of such proposed sublease or assignment, unless Landlord is  unable to furnish space having the attributes (such as size, term, location within the same elevator  bank in the Building, rental rate, etc.) desired by the proposed sublessee or assignee in the Building  at the time of the proposed effective date of the proposed sublease or assignment.  G. Any improvements, additions, or alterations to the Building that are  required by Legal Requirements or are reasonably deemed necessary or appropriate by Landlord,  in order to maintain the floor in a manner consistent with the other floors in the Building and to  not adversely affect the feasibility of leasing the remainder portion of such floor resulting from  any subletting or assignment hereunder, shall be installed and provided by Tenant without cost or  expense to Landlord.  H. If Tenant requests any consent of Landlord to any assignment or sublease,  or otherwise requests any consent or other action on the part of Landlord, and Landlord deems it  necessary for any documents to be prepared or reviewed by its counsel, Tenant shall pay all  reasonable attorney fees and expenses incurred by Landlord in connection therewith not to exceed  $4,000; provided however, ifthe Landlord deems that the nature of the assignment or sublease will  require extensive documentation that would cause the attorney fees and expenses to exceed the  $4,000 amount then Landlord must notify Tenant in advance with an estimate of the attorney fees  and expenses expected to be incurred.  I. Without limiting any term or provision of this Lease, Landlord agrees that  it shall not prohibit Tenant from subleasing from another Building Tenant, on terms and conditions  that are not inconsistent with this Section 7 .1, any Building space that is on a standard office, non- 51  EXECUTION VERSION  amenity floor immediately below and adjacent to the lowest Office Space floor, so long as (i) the  Building is greater than 95% leased and occupied (by Rentable Area) and (ii) tenancies for no more  than 20% of the Building's Rentable Area are subject to natural expiration within three (3) years  of such proposed sublease commencement date.  Section 7.2 ASSIGNMENTS BY LANDLORD. Landlord shall have the right to  transfer and assign, in whole or in part, all its rights and obligations hereunder or in the Project (or  any portion thereof); provided that such assignee has agreed in writing to assume the Lease and  Landlord's obligations hereunder and no further liability or obligation, shall thereafter accrue  against Landlord under or in connection with this Lease.  ARTICLE VIII.  DEFAULT AND REMEDIES  Section 8.1 DEFAULT BY TENANT. The occurrence of any of the following events  and the expiration of any corresponding cure periods hereafter described shall constitute an "Event  of Default" under this Lease on the part of Tenant:  (i) Tenant fails to pay any sum when due to be paid by Tenant under  this Lease (including any portion of the Tenant Improvement Allowance required to be repaid  hereunder) on the due date; provided however, that for the first time per Lease Year, Landlord shall  provide written notice of a delinquent payment to Tenant and an Event of Default shall not have  occurred ifTenant remits any delinquent amount within three (3) business days following the date  of receipt by Tenant of such notice; or  (ii) Tenant fails to cause any contractor's, mechanic's, materialmen's or  similar lien filed against the Project or any portion thereof (including the Leased Premises) for any  work performed, materials furnished, or obligation incurred by or at the request of Tenant, to be  released of record within the time and in the manner required by this Lease unless Tenant posts a  bond or other security for such lien acceptable to Landlord; or  (iii) Tenant fails, subject to and within the time and manner required by  this Lease, to procure, maintain, and deliver to Landlord evidence of, the insurance policies and  coverages as required under Article VI of this Lease; or  (iv) Tenant fails to comply with the provisions of Section 4.3 of this  Lease and does not commence cure promptly, diligently pursue such cure and complete such cure  in a reasonable period of time not to exceed sixty ( 60) days; or  (v) Tenant fails, subject to and within the time and manner required by  this Lease, to procure, maintain, and deliver to Landlord evidence of, the insurance policies and  coverages as required under Article VI of this Lease; or  (vi) Tenant assigns its interest in this Lease or sublets any portion of the  Leased Premises, except as expressly permitted in this Lease, or Tenant shall otherwise breach the  provisions of Article VII of this Lease; or  52  EXECUTION VERSION  





 






(vii) Tenant fails to comply with the provisions of Sections 9 .1 or 9 .2 of  this Lease within ten (10) days after receipt of written notice of non-compliance from Landlord or  Tenant fails to comply with the provisions of Sections 9.11 or 9.17 of this; or  (viii) Tenant breaches any of the other covenants or conditions that Tenant  is required to observe and to perform (other than those referred to in subsections (i) - (vi) above),  and such breach shall continue for thirty (30) days after Tenant's receipt of notice from Landlord  of such breach (unless with respect to any default which cannot be cured within thirty (30) days  due to causes beyond Tenant's reasonable control, Tenant, in good faith, after receiving such  notice, shall have commenced and thereafter shall continue diligently to perform all action  necessary to cure such default); or  (ix) Tenant ceases to exist as an entity in good standing in the state of its  formation and a successor approved by Landlord is not substituted for Tenant and/or Tenant's  qualifications to do business in Tennessee is revoked, terminated or relinquished by the State or  Tenant, in each case, which failure of Tenant is not cured within thirty (30) days of written notice  from Landlord; or  (x) If the interest of Tenant under this Lease is subjected to any  attachment, execution, levy or other judicial seizure pursuant to any order or decree entered against  Tenant in any legal proceeding that is not stayed (so as to prevent seizure) pending appeal and  such order or decree is not vacated or bonded against so as to prevent seizure upon the earlier to  occur of thirty (30) days prior to the sale of such interest pursuant to such order or decree or forty­ five ( 45) days after entry of the order; or  (xi) Tenant fails to continuously occupy the Premises during the term  of this Lease and any renewal term.  If an Event of Default shall have occurred under this Lease, then or at any time thereafter  while such Event of Default continues, Landlord, at Landlord's option, shall have any one or more  of the following described remedies in addition to all other rights and remedies provided at law or  in equity:  (i) Landlord, with or without terminating this Lease, may immediately  or at any time thereafter re-enter the Leased Premises and correct or repair any condition which  shall constitute a failure on Tenant's part to keep, observe, perform, satisfy or abide by any term,  condition, covenant, agreement or obligation of this Lease and Tenant shall fully reimburse and  compensate Landlord on demand for the actual and reasonable costs incurred by Landlord in doing  so.  (ii) Landlord may terminate this Lease and forthwith repossess the  Leased Premises and remove all persons or property therefrom, and be entitled to recover forthwith  as damages a sum of money equal to the total of (1) the cost of recovering the Leased Premises  (including, without limitation, the cost as reasonably estimated to be incurred of attorneys' fees  and costs of suit), (2) the cost as reasonably estimated to be incurred by Landlord of any alterations  of, or repairs to, the Leased Premises which are necessary or proper to prepare the same for  reletting, (3) the unpaid Rent owed at the time of termination, plus interest thereon from due date  53  EXECUTION VERSION  at the Interest Rate, (4) the present value of the balance of the Rent for the remainder of the Term  less the present value of the fair market rental value (and in computing the fair market rental value  the factors taken into account shall include without limitation the market rental concessions and  the time necessary to rel et the Leased Premises) of the Leased Premises for said period (in each  case using a discount rate of 8% per annum), and ( 5) any other sum of money and damages owed  by Tenant to Landlord.  (iii) Landlord may terminate Tenant's right of possession (but not this  Lease) and may repossess the Leased Premises by detainer suit or other peaceful means upon  reasonable demand and notice to Tenant and without terminating this Lease, and remove all  persons or property therefrom, by process of law, in which event Landlord may (and shall be  obligated to the extent necessary to mitigate damages in accordance with Tennessee law), relet the  Leased Premises or any part thereof for the account of Tenant for such rent and upon such terms  as shall be satisfactory to Landlord (however, to the extent Landlord is so required by law to relet  the Leased Premises, Landlord shall be under no obligation to relet the Leased Premises in  preference to any other space in the Project or on terms unsatisfactory to Landlord). For the  purpose of such reletting Landlord is authorized to decorate or to make any repairs, changes,  alterations or additions in or to the Leased Premises, or provide leasing inducements or brokerage  commissions that may be necessary or convenient (to the extent consistent with Landlord's  obligation to mitigate damages), and (1) if Landlord shall fail or refuse to relet the Leased  Premises, or (2) if relet and a sufficient sum shall not be realized from such reletting (after paying  the unpaid amounts due hereunder earned but unpaid at the time of reletting plus interest thereon  at the Interest Rate, the cost of recovering possession (including, without limitation, reasonable  attorneys' fees and costs of suit), all of the costs and expenses of such decorations, repairs, changes,  alterations and additions and all other expenses of such reletting (including, without limitation,  leasing inducements and brokerage commission) and of the collection of the rent accruing  therefrom) to satisfy the Rent provided for in this Lease to be paid, then Tenant shall pay to  Landlord as damages a sum equal to the amount of the rental reserved in this Lease for such period  or periods or, if the Leased Premises have been relet, Tenant shall satisfy and pay any such  deficiency upon demand therefor, from time to time, as the same accrues or becomes due. Tenant  agrees that Landlord may file suit to recover any sums falling due under the terms of this section,  from time to time, on one or more occasions without Landlord being obligated to wait until  expiration of the Term, and no delivery or recovery of any portion due Landlord hereunder shall  be any defense in any action to recover any amount not theretofore reduced to judgment in favor  of Landlord, nor shall such re letting be construed as an election on the part of Landlord to terminate  this Lease, unless a written notice of such intention be given to Tenant by Landlord.  Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect  to terminate this Lease for such previous breach. No such re-entry or termination shall be  considered or construed to be a forcible entry if done in accordance with applicable law.  Notwithstanding anything in this section to the contrary, Landlord shall be obligated to make  reasonable efforts (including those provided above) to mitigate its damages in accordance with  applicable law.  (iv) From and after the entry of a non-appealable order of possession  from a court of proper jurisdiction, Landlord is entitled and is hereby authorized, without any  notice to Tenant whatsoever, to enter upon the Leased Premises by use of a master key, a duplicate  key, picking the locks, or other peaceable means, and to change, alter, and/or modify the door locks  54  EXECUTION VERSION  on all entry doors of the Leased Premises, thereby excluding Tenant, and its officers, principals,  agents, employees, visitors and representatives therefrom. In the event that Landlord has either  terminated Tenant's right of possession to the Leased Premises pursuant to the foregoing  provisions of this Lease, or has terminated this Lease by reason of the Event of Default, Landlord  shall not thereafter be obligated to provide Tenant with a key to the Leased Premises at any time;  provided, however, that in any such instance, during Landlord's normal business hours and at the  convenience of Landlord, and upon the written request of Tenant accompanied by such written  waivers and releases as Landlord may require, Landlord will escort Tenant or its authorized  personnel to the Leased Premises to retrieve any personal belongings or other property of Tenant.  If Landlord elects to exclude Tenant from the Leased Premises without permanently repossessing  the Leased Premises or terminating this Lease pursuant to the foregoing provisions of this Lease,  then Landlord (at any time prior to permanent repossession or termination) shall not be obligated  to provide Tenant a key to re-enter the Leased Premises until such time as all delinquent Rent has  been paid in full and all other Events of Default, if any, have been completely cured to Landlord's  satisfaction, and Landlord has been given assurance reasonably satisfactory to Landlord  evidencing Tenant's ability to satisfy its remaining obligations under this Lease. During any such  temporary period of exclusion, Landlord will, during Landlord's regular business hours and at  Landlord's convenience, upon written request by Tenant, escort Tenant or its authorized personnel  to the Leased Premises to retrieve personal belongings of Tenant or its employees, and such other  property of Tenant.  Failure of Landlord to declare any default or Event of Default immediately upon  occurrence thereof, or delay in taking any action in connection therewith, shall not waive such  default or Event of Default, but Landlord shall have the right to declare any such default or Event  of Default at any time and take such action as might be lawful or authorized hereunder, either at  law or in equity. All rights and remedies of Landlord are cumulative, and the exercise of any one  shall not be an election excluding Landlord at any other time from exercise of a different or  inconsistent remedy. No exercise by Landlord of any right or remedy granted herein shall  constitute or effect a termination of this Lease unless Landlord shall so elect by notice delivered  to Tenant. The failure of Landlord to exercise its rights in connection with this Lease or any breach  or violation of any term, or any subsequent breach of the same or any other term, covenant or  condition herein contained shall not be a waiver of such term, covenant or condition or any  subsequent breach of the same or any other covenant or condition herein contained. No notice to  Tenant shall be required prior to the exercise of any right or remedy of Landlord under this Lease  except to the extent such notice is expressly required by this Lease or applicable law.  Section 8 .2 RESERVED.  Section 8.3 INSOLVENCY OR BANKRUPTCY The appointment of a receiver to take  possession of all or substantially all of the assets of Tenant or any guarantor of any of Tenant's  obligations under this Lease, or any general assignment by Tenant for the benefit of creditors, or  any action taken or suffered by Tenant or any such guarantor under any insolvency, bankruptcy, or  reorganization act, other than an involuntary proceeding that is dismissed or bonded against within  sixty (60) days after the filing thereof, shall at Landlord's option, constitute a breach of this Lease  by Tenant. Upon the happening of any such event (each being an Event of Default) or at any time  thereafter to the extent permitted by applicable law, this Lease shall terminate five (5) days after  notice of termination from Landlord to Tenant. In no event shall this Lease be assigned or  55  EXECUTION VERSION  assignable in a proceeding in lieu of a bankruptcy and, in no event shall this Lease or any rights or  privileges hereunder be an asset of Tenant or any such guarantor under any bankruptcy, insolvency  or state law reorganization proceeding.  Section 8.4 LANDLORD DEFAULT. In the event that Landlord breaches or fails to  comply with any term, provision, condition or covenant of this Lease applicable to Landlord  (including but not limited to the provisions of Article Von improvements, maintenance and repair),  and such breach or failure continues for more than thirty (30) days following the date of receipt by  Landlord of written notice of such breach or failure from Tenant, Landlord shall be in default of  this Lease; provided, however, that ifthe nature of Landlord's breach or failure to comply is such  that more than thirty (30) days is reasonably required to cure such breach or failure to comply due  to causes beyond Landlord's reasonable control, Landlord shall not be deemed to be in default if  Landlord, in good faith, commences such cure within such thirty (30)-day period and thereafter  diligently pursues and diligently performs all actions necessary to cure such default within a  reasonable period of time. Notwithstanding the forgoing cure rights, Landlord shall not be  afforded any cure period for breach of Landlord's obligations to provide parking in accordance  with Section 4.7. Upon the occurrence of any Landlord default, Tenant, at its option, shall have  the right to one of the following remedies, except as otherwise expressly set forth in Exhibit F to  this Lease: (i) Tenant may cure such Landlord default itself and bill Landlord for all costs incurred  by Tenant supported by paid invoices which Landlord shall pay within thirty (30) days of receipt  (after which interest will accrue at the lesser of 12% or the maximum amount allowed by law);  provided that prior to Base Rental off-set, Tenant shall provide Landlord written documentation  showing such actual costs; (ii) to pursue the remedy of specific performance; or (iii) to seek direct  money damages for loss arising from Landlord's failure to discharge its obligations under the  Lease. If any final, non-appealable judgment obtained by Tenant against Landlord in a court of  competent jurisdiction is not satisfied within forty-five (45) days, Tenant shall have the right, at  Tenant's election, to off-set Base Rental against the amount of such judgment. Notwithstanding  any term or provision of this section or elsewhere in this Lease to the contrary, Tenant's remedies  for Landlord's failure to construct and/or deliver the Base Building, to timely construct and/or  deliver the Base Building, or otherwise complete or timely complete Landlord's obligations with  respect to construction and completion of the Project shall be limited to the remedies, as may be  applicable, expressly set forth in Exhibit F, as the case may be, such remedies being limited to the  specific failures or defaults described therein or the sub-parts thereof. Pursuit of any of the above  remedies by Tenant after default by Landlord shall not preclude pursuit of any remedy constitute  forfeiture or waiver of any payment due to Tenant. No waiver by Tenant of any violation or breach  of any of the terms, provision and covenants herein contained shall be deemed or construed to  constitute a waiver of any other violation or breach of any of the terms, provisions, and covenants  contained herein. Forbearance by Tenant to enforce one or more of the remedies herein provided  upon an Event of Default by Landlord shall not be deemed or construed to constitute a waiver of  any other violation or default.  Section 8.5 MORTGAGEE PROTECTION. Notwithstanding any other term or  provision of this Lease, Tenant agrees to use good faith efforts to give any owner, beneficiary,  lessor, or holder of an Encumbrance (defined below) a copy of any notice of default served upon  Landlord, provided that prior to such notice Tenant has been notified in writing (by way of notice  or assignment of rents and leases, or otherwise) of the address( es) of such Encumbrance owner,  beneficiary, lessor, or holder. In no event shall Tenant exercise any right or remedy available to  56  EXECUTION VERSION  





 






Tenant by virtue of Landlord's default unless Tenant has given such Encumbrance owners,  beneficiaries, lessors, or holders, as the case may be, at least thirty (30) days after receipt of notice  of such default, or such other amount of time as may be reasonably required to cure such default,  to cure such default. If an Encumbrance owner, beneficiary, lessor, or holder shall succeed to the  interest of Landlord under this Lease, such Encumbrance owner, beneficiary, lessor, or holder shall  not be: (i) liable for any act or omission of any prior lessor (including Landlord); (ii) bound by any  Rent or advance Rent which Tenant might have paid for more than the current month to any prior  lessor (including Landlord), and all such Rent shall remain due and owing, notwithstanding such  advance payment; (iii) bound by any security or advance deposit made by Tenant which is not  delivered or paid over to such Encumbrance owner, beneficiary, lessor, or holder and with respect  to which Tenant shall look solely to Landlord for refund or reimbursement; (iv) bound by any  termination, amendment or modification of this Lease made without such Encumbrance owner's,  beneficiary's, lessor's, or holder's consent and written approval, except for those terminations,  amendments and modifications permitted to be made by Landlord without such Encumbrance  owner's, beneficiary's, lessor's, or holder's consent pursuant to the express, written agreement(s)  between Landlord and such Encumbrance owner, beneficiary, lessor, or holder; (v) subject to the  defenses which Tenant might have against any prior lessor (including Landlord), except to the  extent that the basis upon which such defense is asserted has arisen after the Encumbrance owner  or holder has acquired possession; and (vi) subject to the offsets which Tenant might have against  any prior lessor (including Landlord) except for those offset rights which (x) are expressly  provided in this Lease, (y) relate to periods of time following the acquisition of the Project (or any  portion thereof) by such Encumbrance owner, beneficiary, lessor, or holder, and (z) Tenant has  provided written notice to such Encumbrance owner, beneficiary, lessor, or holder and provided  such Encumbrance owner, beneficiary, lessor, or holder a reasonable opportunity to cure the event  giving rise to such offset event. Except for liabilities, responsibilities and claims arising and  accruing during its period of ownership no Encumbrance owner, beneficiary, lessor, or holder shall  have any liability or responsibility under or pursuant to the terms of this Lease or otherwise after  it ceases to own an interest in the Project. Except as expressly set forth in Section 9.l(E), nothing  in this Lease shall be construed to require an Encumbrance owner, beneficiary, lessor, or holder to  see to the application of the proceeds of any loan, and Tenant's agreements set forth herein shall  not be impaired on account of any modification of the documents evidencing and securing any  loan.  Section 8.6 LIABILITY LIMITATION. Tenant specifically agrees to look solely to  Landlord's (or its successors') interest in the Project and the Project's accounts for the recovery of  any judgment from Landlord, it being agreed that Landlord and Landlord's owners (direct or  indirect, general or limited), directors, managers, officers, employees, and representatives shall  never be personally liable for any such judgment. The provision contained in the foregoing  sentence is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain  injunctive relief against Landlord or Landlord's successors in interest, or to maintain any suit or  action in connection with enforcement of collection of amounts which may become owing or  payable under or on account of insurance maintained by Landlord. In no event shall either party  be liable to the other for lost profits, business interruption or any other type of incidental,  consequential or special damages for any reason, including in connection with the making of  repairs or alterations to the Leased Premises or other portion of the Project; failure to provide or  interruption of services; failure to make repairs, injury to person or property; or other exercise of  Landlord's rights under this Lease.  57  EXECUTION VERSION  ARTICLE IX.  MISCELLANEOUS  Section 9.1 SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT.  A. Except as provided in sub-section (E) below and subject to the Tenant's non- disturbance and other rights expressly set forth in such subsection (herein the "Tenant's Non­ disturbance Rights."), this Lease and all rights of Tenant hereunder are and shall be subject and  subordinate to (i) the lien, title and interest of any deed of trust, mortgage, deed to secure debt, or  other instrument in the nature thereof (including fixture filings) that may now or hereafter affect  Landlord's estate or interest in and to the Project (or any portion thereof) and to any other  instrument encumbering the fee title of the Project (or any portion thereof) and to all advances  thereunder and any modifications, renewals, consolidations, extensions, or replacements thereof;  (ii) all ground leases that may now or hereafter affect the Project (or any portion thereof); and (iii)  the declaration of condominium for the Building (each, an "Encumbrance").  B. Subsection (A) above shall, subject to the Tenant's Non-disturbance Rights,  be self-operative, and no further instrument of subordination shall be required by the holder of any  Encumbrance. In confirmation of such subordination, Tenant shall, upon demand, at any time or  times, execute, acknowledge and deliver to Landlord, the owner, beneficiary, lessor, or holder  under any such Encumbrance, without expense, any and all commercially reasonable instruments  consistent with the Tenant's Non-disturbance Rights that may be reasonably requested by  Landlord, such owner, beneficiary, lessor, or holder to evidence the subordination of this Lease  and all rights hereunder to any such Encumbrance, and each advance thereunder and any such  renewal, modification, consolidation, replacement and extension thereof.  C. Tenant shall, upon demand of Landlord, at any time or times, execute,  acknowledge and · deliver to Landlord, the owner, beneficiary, lessor, or holder of any  Encumbrance, without expense, any and all instruments that may be necessary to make this Lease  superior to any such Encumbrance and each renewal, modification, consolidation, replacement and  extension thereof.  D. If the owner, beneficiary, lessor, or holder of any Encumbrance shall  hereafter succeed to the rights of Landlord under this Lease, whether through possession (including  deed in lieu of foreclosure) or foreclosure action or exercise of private power of sale or delivery  of a new lease, such succession shall be subject to such party recognizing the Tenant as its tenant  and honoring the terms of the Lease and subject further to the Tenant's Non-disturbance Rights as  more fully described in Section E below. Tenant shall, at the option of such owner, beneficiary,  lessor, or holder, attom to and recognize such successor as Tenant's landlord under this Lease as  of the date of such succession to Landlord's interest and shall promptly execute and deliver any  commercially reasonable instrument consistent with the Tenant's Non-disturbance Rights that may  be necessary to evidence such attomment. Upon such attomment, this Lease shall continue in full  force and effect as a direct lease between such successor Landlord and Tenant, subject to all of the  terms, covenants, and conditions of this Lease.  E. Tenant's subordination of this Lease to any future Encumbrance (including  the Building construction lender's construction deed of trust) is conditioned upon Landlord's  58  EXECUTION VERSION  delivering to Tenant a commercially reasonable subordination, non-disturbance and attornment  agreement consistent with the Tenant's Non-disturbance Rights signed by any owner, beneficiary,  lessor, or holder of any such future Encumbrance on such owner's, beneficiary's, lessor's, or  holder's approved form (with appropriate modifications, if appropriate, to recognize the Tenant  and its rights under the Lease and consistent with the Tenant's Non-disturbance Rights, provided  that Tenant has first signed such agreement within ten (10) days of the provision thereof to Tenant  as required by such owner, beneficiary, lessor, or holder. Such agreement shall provide Tenant  with an agreement, in recordable form, stating that such owner, beneficiary, lessor, or holder, as  the case may be, shall not disturb Tenant's occupancy of the Leased Premises and shall recognize  Tenant's rights under this Lease in the event of a foreclosure of such Encumbrance or a transfer in  lieu of foreclosure or a termination of or default under such ground lease (as the case may be),  provided that there is not then an Event of Default under this Lease and that such owner,  beneficiary, lessor, or holder is not responsible or financially accountable in any way for any  default or failure on the part of any prior landlord under this Lease. In addition, with respect to  the Building's construction lender (or any other party obligated or becoming obligated to provide  or refund funds to the Tenant), such agreement with the applicable party shall require that, in the  event of a foreclosure of such Encumbrance or a transfer in lieu of foreclosure before full funding  of Tenant's Improvement Allowance and payment of the commission due the Brokers in  connection with the Initial Term (or full payment of any other obligations due to or on behalf of  Tenant under the Lease), such lender shall assume the obligation to fund such amounts pursuant  to the terms and conditions of this Lease and any related commission agreements.  Section 9.2 ESTOPPEL CERTIFICATES. Tenant shall at any time (but no more than  once per calendar year), upon not less than twenty (20) days' prior written request, execute and  deliver in form and substance reasonably satisfactory to Landlord and any Encumbrance holders  or any proposed Encumbrance holders or purchasers of the Project or any interest therein, as  directed by Landlord, an estoppel certificate certifying (to the extent known and actually true): (a)  the Commencement Date and the Expiration Date; (b) the date to which Rent has been paid; ( c)  that Tenant has accepted the Leased Premises and that all improvements required to be made by  Landlord have been satisfactorily completed (or if not so accepted or completed, the matters  objected to by Tenant); ( d) that this Lease is in full force and effect and has not been modified or  amended (or if modified or amended, a description of same); ( e) that there are no defaults by  Landlord under this Lease nor any existing condition that with the giving of notice, the passage of  time or both, would constitute a default; (f) that any tenant improvement allowance or other  concession owed to Tenant has been received; (g) that Tenant has received no notice from any  insurance company of any defects of inadequacies in the Leased Premises; (h) that Tenant has no  options or rights other than as set forth in this Lease or any amendment hereto; (i) that there are no  disputes as to any obligations or monetary requirements under the terms of the Lease; and G) such  other matters as Landlord or the beneficiary of such estoppel certificate may reasonably request.  To the extent any such matter is not known or not true as contained in the proposed estoppel form  delivered to Tenant, Tenant shall be allowed to so indicate, provide any appropriate explanation  and modify such form appropriately to accurately reflect such information. If such estoppel  certificate is to be delivered to a purchaser of the Project, provided that it contains provisions  whereby such purchaser recognizes Tenant as its tenant and honoring the terms of the Lease and  that such purchaser acknowledges and agrees to the Tenant's Non-disturbance Rights, it shall  further include the agreement of Tenant to attom to such purchaser as Landlord under this Lease,  and thereafter to pay Rent to the purchaser or its designee in accordance with the terms of this  59  EXECUTION VERSION  Lease. Tenant acknowledges that any purchaser or prospective mortgagee of the Project may rely  upon such estoppel letter and that Landlord may incur substantial damages by reason of any failure  on the part of Tenant to provide such letter in a timely manner.  Section 9 .3 SECURITY. "Tenant Security Requirements" shall mean that Tenant  requires advance notification of Landlord's intent to enter the Premises, except in emergency  situations. At all times, Landlord's representatives shall be prepared to provide proper  identification. Non-Landlord parties, including, but not limited to, potential buyers, mortgagees,  invitees, guests or potential tenants, shall be accompanied by an employee of Tenant at all times  while within the Premises. If Landlord intends to show the Premises to prospective tenants,  Landlord shall additionally provide Tenant the name of the prospective tenant, and, if the  prospective tenant is determined to be a Competitor of Tenant, Tenant shall, at Tenant's option,  have at least 72 hours to make any arrangements to further secure the Premises prior to the tour of  the prospective tenant of the Premises. Tenant acknowledges and agrees that Landlord shall not  be liable to Tenant or to any owner, employee, contractor, agent, guest, invitee, or customer of  Tenant for, and Tenant waives any claim against Landlord with respect to, any loss by theft or any  other damage suffered or incurred by Tenant (or any owner, employee, contractor, agent, guest,  invitee, or customer of Tenant) in connection with any unauthorized entry into the Leased Premises  or any other breach of security with respect to the Leased Premises, unless such unauthorized entry  or other security breach is the result of Landlord's willful acts, omissions or gross negligence.  Section 9.4 PARTY APPROVALS. Tenant represents and warrants that all consents and  approvals required (including from its Board of Directors or shareholders, as necessary) for the  execution, delivery and performance of this Lease have been obtained and that Tenant has the right  and authority to enter into and perform its covenants contained in this Lease. Likewise, Landlord  represents and warrants that all consents and approvals for the execution, delivery and performance  of this Lease have been obtained and that Landlord has the right and authority to enter into and  perform its covenants contained in this Lease.  Section 9.5 SEVERABILITY; USURY SAVINGS CLAUSE. If any term or provision  of this Lease, or the application thereof to any person or circumstance shall to any extent be invalid  or unenforceable, the remainder of this Lease, or the application of such provision to persons or  circumstances other than those as to which it is invalid or unenforceable, shall not be affected  thereby. Each provision of this Lease shall be valid and shall be enforceable to the extent permitted  by law. Notwithstanding anything to the contrary in this Lease, the effective rate of interest on  any sum set forth in this Lease shall not exceed the lawful maximum rate of interest permitted to  be accrued or collected. Without limiting the generality of the foregoing, in the event any interest  accrued or collected hereunder results in an effective rate of interest higher than that lawfully  permitted to be accrued or collected, then such interest rate shall be reduced to the lawful maximum  interest rate permitted to be accrued or collected by applicable law, and any amount previously  paid or paid in the future which would exceed the highest lawful rate shall be applied to a reduction  of Base Rental (without premium or penalty) and not to the payment of interest.  Section 9.6 NON-WAIVER. No failure or delay of Landlord or Tenant in any one  instance to exercise any remedy or power given it herein or to insist upon strict performance by  the other of any obligation imposed on it herein in any other instance shall constitute a waiver or  a modification of the terms hereof by the non-performing party in any one instance or any right it  60  EXECUTION VERSION  





 






has herein to demand strict compliance with the terms hereof by the non-performing party in any  other instance. Additionally, no express written waiver by Landlord or Tenant shall affect any  condition other than the condition specified in such express written waiver and only for the time  and in the manner specifically stated. A receipt by Landlord of any Rent with knowledge of the  breach of any covenant or agreement contained in this Lease shall not be deemed a waiver of such  breach, and no waiver by Landlord or Tenant of any provision of this Lease shall be deemed to  have been made unless expressed in writing and signed by the waiving party. No payment by  Tenant or receipt by Landlord of a lesser amount than the Rent due under this Lease shall be  deemed to be other than an 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 in this Lease  provided. No course of conduct between Landlord and Tenant, and no acceptance of the keys to  or possession of the Leased Premises before the termination of the Term by Landlord or any  employee of Landlord shall constitute a waiver of any such breach or of any term, covenant or  condition of this Lease or operate as a surrender of this Lease. All of the remedies permitted or  available to Landlord or Tenant under this Lease, or at law or in equity, shall be cumulative and  not alternative and the exercise of any such right or remedy shall not constitute a waiver or election  of remedies with respect to any other permitted or available right or remedy.  Section 9.7 NOTICES. All notices, requests, demands, tenders and other  communications under this Lease shall be in writing. Any such notice, request, demand, tender or  other communication shall be deemed to have been duly given when actually delivered, or the next  business day following delivery to a nationally recognized commercial courier for next business  day delivery, to the address for each party set forth in the Lease Summary. Rejection or other  refusal to accept, or inability to deliver because of changed address of which no notice was given,  shall be deemed to be receipt of such notice, request, demand, tender or other communication.  Any party, by written notice to the other party in the manner herein provided, may designate an  address different from that stated herein.  Section 9.8 SUCCESSORS. This Lease shall be binding upon and inure to the benefit  of Landlord, its successors and assigns, and shall be binding upon and inure to the benefit of  Tenant, its successors and, to the extent assignment may be approved by Landlord hereunder,  Tenant's assigns.  Section 9.9 EXHIBITS; ENTIRETY; CONSTRUCTION. All exhibits, schedules, and  addenda now attached, or hereafter attached, to this Lease, by mutual agreement pursuant to the  Special Stipulation or otherwise, are incorporated herein and are made a part of this Lease. Except  for that certain letter agreement dated on or about the same date as this Lease pertaining to the  Landlord's reimbursement of expenses incurred by Tenant for architectural services pertaining to  "test-fit" analysis ("the "Test-Fit" Letter"), this Lease constitutes the entire agreement between  Landlord and Tenant. Except for the Test-Fit Letter, no prior or contemporaneous promises,  inducements, representations or agreements, oral or otherwise, between the parties hereto not  embodied herein shall be binding or have any force or effect. Tenant will make no claim on  account of any representations whatsoever, whether made by any renting agent, broker, officer or  other representative of Landlord or which may be contained in any circular, prospectus or  advertisement relating to the Leased Premises or the Project, or otherwise, unless the same is  61  EXECUTION VERSION  explicitly set forth in this Lease. The parties acknowledge that each party to this Lease has been  represented by counsel and that such counsel have participated in the negotiation and preparation  of this Lease. This Lease shall be construed without regard to any presumption or rule requiring  that it be construed or constructed against the party who has caused the Lease to be drafted. When  used herein, (i) the singular shall include the plural, and vice versa, and the use of the masculine,  feminine or neuter gender shall include all other genders, as appropriate; and (ii) "include'',  "includes" and "including" shall be deemed to be followed by "without limitation" regardless of  whether such words or words of like import in fact follow the same.  Section 9.10 FINANCIAL STATEMENTS. If Tenant ceases to be a publicly traded  company, then Tenant shall have an obligation to provide financial statements to Landlord no less  frequently than annually.  Section 9.11 CONFIDENTIALITY; MEDIA. Landlord and Tenant acknowledge that  the other party's financial, operational, and other non-public information provided to it by the other  party or otherwise obtained by it in connection with the negotiation and preparation of and  performance under this Lease is confidential, except to their respective board of directors, legal  counsel, financial advisers, professional advisors and other consultants in connection with  negotiating and finalizing this Lease. Landlord and Tenant agree not to disclose any such  confidential information to any other person, firm, or enterprise or use (directly or indirectly) any  such information for its own benefit or the benefit of any other party, except as may be required  by any Governmental Authority or any Legal Requirement so long as the non-disclosing party has  received written notice of such requirement reasonably in advance of such disclosure. Additionally,  no press releases or other announcements shall be made by Landlord or Tenant related to the Lease  without the written consent of both Landlord and Tenant as to the timing and content of the same.  Section 9.12 FORCE MAJEURE. Landlord and Tenant (except with respect to the  payment of Rent or any other monetary obligation of either Landlord or Tenant under this Lease)  shall be excused for the period of any delay and shall not be deemed in default with respect to the  performance of any of the terms, covenants and conditions of this Lease when prevented from so  doing by a cause or causes beyond Landlord's or Tenant's (as the case may be) reasonable control  (each, a "Force Majeure"), which shall include, without limitation, all labor disputes, governmental  regulations or controls, fire or other casualty, inability to obtain any material or services,  pandemics and acts of God.  Section 9.13 AMENDMENTS. This Lease may not be altered, changed or amended,  except by an instrument in writing, signed by both parties hereto.  Section 9.14 BROKERS. Tenant represents and warrants that Tenant did not engage a  broker and Landlord agreed to provide Tenant the brokerage fee equivalent as additional Tenant  Improvement Allowance set forth in the Lease Summary. Tenant hereby indemnifies and holds  harmless Landlord and any broker employed by Landlord from any claims of any other broker(s)  claiming a commission in connection with this Lease, or any renewal, extension or any type of  option relating to this Lease, resulting from the actions of Tenant. Landlord represents and  warrants that Landlord has dealt with and only with the Brokers named in the Lease Summary in  connection with this Lease and Landlord hereby indemnifies and holds harmless Tenant from any  claims of Brokers and any other broker(s) claiming a commission in connection with this Lease,  62  EXECUTION VERSION  or any renewal, extension or any type of option relating to this Lease, resulting from the actions of  Landlord.  Section 9.15 PATRIOT ACT. Neither Tenant nor any of Tenant's, directors, officers, or  any other constituent or affiliate entities is identified on the list of specially designated nationals  and blocked persons subject to financial sanctions that is maintained by the U.S. Treasury  Department, Office of Foreign Assets Control and any other similar list maintained by the Office  of Foreign Assets Control pursuant to any authorizing United States law, regulation or Executive  Order of the President of the United States nor is Tenant subject to trade embargo or economic  sanctions pursuant to any authorizing United States law, regulation or Executive Order of the  President of the United States. The execution of this Lease by Tenant will not violate the Trading  with the Enemy Act, as amended, or any of the foreign assets control regulations of the United  States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling  legislation or executive order relating thereto. In addition, Tenant warrants, represents and  covenants that Tenant is not an entity or person (i) that is listed in the Annex to, or is otherwise  subject to the provisions of Executive Order 13224 issued on September 24, 2001 ("E013224"),  (ii) whose name appears on the United States Treasury Department's Office of Foreign Assets  Control ("OFAC") most current list of "Specifically Designed National and Blocked Persons"  (which list may be published from time to time in various mediums including, but not limited to,  the OFAC website, http:www.treas.gov/ofac/tllsdn.pdf), (iii) who commits, threatens to commit  or supports "terrorism", as that term is defined in EO 13224, or (iv) who is otherwise affiliated  with any entity or person listed in subparts (i)-(iv) above (any and all parties or persons described  in subparts (i) - (iv) above are herein referred to as a "Prohibited Person"). Tenant covenants and  agrees that Tenant will not knowingly (i) conduct any business, nor engage in any transaction or  dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any  contribution of funds, goods, or services, to or for the benefit of a Prohibited Person, or (ii) engage  in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or  avoiding, or attempts to violate, any of the prohibitions set forth in EO 13224. Tenant further  covenants and agrees to deliver (from time to time) to Landlord any such certification or other  evidence as may be reasonably requested by Landlord, confirming that Tenant (i) is not a  Prohibited Person, (ii) has not knowingly engaged in any business, transaction or dealings with a  Prohibited Person, including, but not limited to, the making or receiving of any contribution of  funds, goods, or services, to or for the benefit of a Prohibited Person, and (iii) is not, or shall not  become, a person or entity whose activities are regulated by the International Money Laundering  Abatement and Financial Anti-Terrorism Act of 2001 or the regulations or orders thereunder.  Section 9.16 WAIVER OF WRY TRIAL; COUNTERCLAIMS. TO THE MAXIMUM  EXTENT PERMITTED BY LAW, LANDLORD AND TENANT EACH WAIVE ANY RIGHT  TO TRIAL BY WRY IN ANY LITIGATION OR TO HAVE A JURY PARTICIPATE IN  RESOLVING ANY DISPUTE ARISING OUT OF OR WITH RESPECT TO THIS LEASE OR  ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR  DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED  HERETO. IT IS FURTHER MUTUALLY AGREED THAT IN THE EVENT LANDLORD  COMMENCES ANY PROCEEDING OR ACTION FOR POSSESSION, INCLUDING A  SUMMARY PROCEEDING FOR POSSESSION OF THE PREMISES, TENANT WILL NOT  INTERPOSE ANY COUNTERCLAIM OF WHATEVER NATURE OR DESCRIPTION IN ANY  SUCH PROCEEDING, EXCEPT FOR STATUTORY MANDATORY COUNTERCLAIMS.  63  EXECUTION VERSION  Section 9.17 NO RECORDING AND NON-DISCLOSURE. Landlord and Tenant agree  not to record this Lease. Additionally, except as required by Legal Requirements or for financial  reporting purposes, Landlord and Tenant shall not disclose the terms of this Lease to any third  party; provided, however, without Tenant's prior written consent, Landlord shall be permitted to  disclose the terms of this Lease to (i) Landlord's owners, directors, managers, and officers and  Landlord's affiliates and property managers, (ii) any current or prospective holder of any  Encumbrance or voluntary lien on the Project or any portion thereof or interest therein, (iii) any  prospective purchaser or other transferee of the Project or any portion thereof or interest therein,  and (iv) Landlord's professional advisors (including legal counsel, accountants, and insurance  brokers); provided further, however, without Landlord's prior consent, Tenant shall be permitted  to disclose the terms of this Lease to (i) Tenant's professional advisors (including legal counsel,  accountants, and insurance brokers); (ii) any prospective or permitted assignee, sublessee or other  transferee of Tenant's interest under this Lease; and (iii) Tenant's owners, directors, managers, and  officers. Notwithstanding anything to the contrary contained in this Lease, any breach by Landlord  or Tenant of the provisions of this section shall not be a default under the terms of this Lease, and  the non-defaulting party's sole remedy shall be to commence actions at law or in equity for an  injunction (without the necessity for bond) or to recover damages suffered by such party on  account of the breach and to recoup all costs and expenses (including attorney fees) incurred by  the non-defaulting party in connection with such breach.  Section 9 .18 TIME. Time is of the essence in this Lease. Except to the extent expressly  provided to the contrary in this Lease, all references to days in this Lease shall refer to calendar  days. All references to "Business Days" or "business days" in this Lease mean days that banks are  open for business in Nashville, Tennessee. If any date, deadline, milestone, or period provided in  this Lease ends on a Saturday, Sunday or legal or bank holiday (as observed in Nashville,  Tennessee), the applicable period shall be extended to the first Business Day following such  Saturday, Sunday or legal or bank holiday (as observed in Nashville, Tennessee).  Section 9.19 NO RELATIONSHIP OTHER THAN LANDLORD AND TENANT!--This  Lease shall not be deemed or construed to create or establish any relationship (other than that of  landlord and tenant) or partnership or joint venture or similar relationship or agreement between  Landlord and Tenant hereunder.  Section 9.20 GOVERNING LAW; ATTORNEY FEES. This Lease is a Tennessee  contract, and all of the terms hereof shall be construed according to the laws of the State of  Tennessee. In the event Tenant or Landlord defaults in the performance of any of the terms,  covenants, agreements or conditions contained in this Lease and the non-defaulting party places  the enforcement of this Lease, or any part thereof, or the collection of any sums due, or to become  due hereunder, or recovery of the possession of the Leased Premises, in the hands of an attorney,  or files suit upon the same, the defaulting party agrees to pay the non-defaulting party all costs and  expenses (including reasonable attorney fees and third-party expert fees) actually incurred by the  non-defaulting party if the non-defaulting party prevails in connection with such enforcement or,  in the event suit is necessary, if such suit is successful.  Section 9.21 COUNTERPARTS. This Lease may be executed in multiple counterparts,  by exchange of facsimile or pdf copies, each of which shall constitute an original instrument, but  all of which shall constitute one and the same agreement.  64  EXECUTION VERSION  





 






Section 9.22 NO RESERVATION OR OPTION. Submission of this instrument for  examination or signature by Tenant does not constitute a reservation of or an option for lease, and  it is not effective as a lease or otherwise until execution and delivery by both Landlord and Tenant.  [Signature page follows]  65  EXECUTION VERSION  [Signature page to Office Lease Agreement]  IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the Effective  Date.  LANDLORD:  1600 West End A venue Partners, LLC,  a Tennessee limited liability company  By:  Name: ~~~Ml.!E.~:=!--L.::....:...._-=.:.z-=-.:....._~~   Title:  66  EXECUTION VERSION  [Signature page to Office Lease Agreement]  IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the Effective  Date.  TENANT:  Cumberland Pharmaceuticals Inc.,  :~ennesse1;r;~ . ) .  Name: ~"ff 7fE/;.4z/rn•  Title: C€ 0  67  BXECUTION V8RSJON  Addendum 1  Right of First Offer  In order to accommodate Tenant's future expansion of the business, Landlord hereby grants  to Tenant throughout the Term of the Lease a right of first offer with respect to any rentable space  immediately on the same floor and contiguous to the Office Space (the "Offer Space") not  otherwise a part of the Leased Premises at the time of the Offer Notice (defined below), all upon  the terms and conditions set forth in this addendum and provided that there is no existing Event of  Default at the time the Offer Notice is given or at the time the Offer Space is delivered to Tenant  (the "Right of First Offer"). Such Right of First Offer shall be a continuous Right of First Offer  for the contiguous floor below Tenant's Leased Premises and, subject to and subordinate to the  rights of other tenants, for the contiguous floor above Tenant's Leased Premises. As used herein,  "available" means that the space is not subject to any rights of other tenants to lease the same either  (i) in effect as of the date of this Lease; or (ii) granted in any lease executed after the date of this  Lease where Tenant has not exercised the foregoing right of first offer. Further, space shall not be  deemed available if Landlord elects to renew the lease of the tenant then in occupancy. Tenant's  Right of First Offer shall terminate upon sublease of the Premises or assignment of the Lease and  shall not be assignable to any sublessee or assignee.  Landlord shall notify Tenant in writing within thirty (30) days after the Offer Space becomes  available to lease, or at Landlord's option, such earlier time as Landlord shall be in a position to  project when the Offer Space will be available to lease, advising Tenant of such projected date.  Tenant shall then have fifteen (15) days in which to notify Landlord in writing exercising Tenant's  right to lease the Offer Space on the terms described herein. If Tenant exercises the right to lease  the Offer Space, said lease and the rent on the Offer Space shall commence the later of thirty (30)  days after Tenant's notice exercising the right, or the date the Offer Space is available for  occupancy, and shall continue for the duration of the Term of the Lease (including the Renewal  Term ifthe Renewal Option is exercised).  Notwithstanding anything to the contrary contained herein, if Tenant does not exercise its  Right of First Offer with respect to any Offer Space offered by Landlord to Tenant pursuant to this  addendum, Tenant's Right of First Offer covering such Offer Space is and shall be subject and  subordinate to any renewal rights, expansion rights, rights of first offer or similar rights thereafter  granted to any tenants of the Building with respect to such Offer Space, as an inducement for such  tenants to enter into their leases with Landlord, all of which rights Landlord may give such tenants  in its sole discretion.  The Offer Space leased by Tenant pursuant to this addendum shall be leased on and subject  to the following terms and conditions: (i) the Offer Space shall be delivered in its as-is, where-is  condition, unless otherwise agreed to in writing by Landlord and Tenant, and shall become a part  of the Leased Premises and the Term shall commence as to such Offer Space, effective upon the  earlier of (x) Tenant's substantial completion of Tenant's improvements to the Offer Space  (performed in compliance with the provisions of Exhibit F), (y) Tenant's occupancy of the Offer  Space forthe Permitted Use, or (z) 120 days from Landlord's delivery of the Offer Space to Tenant;  (ii) Tenant's lease of the Offer Space shall be coterminous with the Term; (iii) the Base Rental rate  per square foot of Rentable Area of the subject Offer Space shall be the rate set forth in this Lease;  68  EXECUTION VERSION  





 






(iv) Tenant's Proportionate Share shall be correspondingly increased and Tenant shall be  responsible for any increases in Rent because of such increased Proportionate Share; and (v)  Tenant shall be afforded a tenant improvement allowance applicable to the Offer Space of $62.00  per square foot of Rentable Area within the Offer Space as the Tenant Improvement Allowance,  reduced in proportion to the then-remaining portion of the Term (excluding, for clarification, any  non-available or non-exercised Renewal Terms) (an "Offer pace Improvement Allowance"),  which shall be paid in the same fashion and pursuant to the same restrictions as the Tenant  Improvement Allowance. Any work required for Tenant's occupancy of the Offer Space shall be  subject to the requirements, and completed in the same manner, as the Tenant's Improvements set  forth in the Work Letter.  Promptly after the exercise of the Right of First Offer pursuant to the terms hereof, Tenant  and Landlord shall execute an amendment to this Lease in form mutually agreed to by Landlord  and Tenant, each acting reasonably, which amendment shall delineate and describe the Offer Space  added to this Lease thereby and any terms specific thereto.  Tenant may not assign the Right of First Offer, and no sublessee or assignee of Tenant may  exercise a Right of First Offer. The Right of First Offer shall terminate upon and Event of Default  by Tenant.  Without limiting any term or provision of this addendum (including the terms of Landlord's  delivery of Offer Space), Landlord shall not be liable for failure to give possession of any Offer  Space by reason of any holding over or retention of possession by any previous tenants or  occupants of such Offer Space (or any portion thereof), nor shall such failure impair the validity  of this Lease (however, in the event of any such holding over, the Term shall not commence as to  the applicable Offer Space until Landlord actually delivers possession). Landlord does agree,  however, to use reasonable diligence to deliver possession of the applicable Offer Space in  accordance with the provisions of this addendum and, ifrequested by Tenant, and if (but only it)  substitute space is available for Tenant's use in the Building (as reasonably determined by  Landlord) containing approximately the same number of square feet of Ren table Area as the Offer  Space subject to the holdover, Landlord shall permit Tenant to utilize such space in its as-is  condition, and Landlord and Tenant shall not make any alterations or improvements thereto and  Tenant shall not be entitled to any allowances with respect thereto) for so long as such space is  available (the "Offer Substitute Space"). Tenant shall be obligated to pay Base Rental for the  Offer Substitute Space at the lesser of (i) the rate Tenant is obligated to pay for the Offer Space as  determined pursuant to this addendum, and (ii) the rate currently being charged by Landlord for a  comparable space in the Building. Tenant shall have the Offer Substitute Space until that portion  of the Offer Space occupied by the previous tenant is made available to Tenant, at which time  Tenant shall relocate (at its cost and expense) to the Offer Space and the Offer Substitute Space  shall be returned to Landlord in a broom-clean condition at least comparable to the condition of  such Offer Substitute Space upon delivery to Tenant, subject only to reasonable wear and tear.  69  EXECUTION VERSION  EXHIBIT A  Description of the Land  The land on which the "Office Tower" is actually located (which Tenant acknowledges is an  approximate, and not exact, location of such land), which land is a portion of the following  described parcel on which the Project is located:  Land in Davidson County, Tennessee, being Lot No. 1 on the Plan of West End Summit ofrecord  in Instrument Number 20080702-0068641, in the Register's Office for Davidson County,  Tennessee, to which Plan reference is hereby made for a more complete description of the property.  70  EXECUTION VERSION  EXHIBIT B-1  Premises Floor Plans and Drawings as Existing as of the Date of Execution of this Lease  Floor 13  71  EXECUTION VERSION  EXHIBIT B-2  Building Amenities Floor Plan  As of the Effective Date, Landlord will provide amenities within the Building as outlined below.  Notwithstanding these planned locations for the amenities, Landlord shall have, at its sole  discretion, the right to relocate the amenities prior to the commencement of or at any time during  the term of the Lease.  Fitness Center  (For the use of office tenants)  Outdoor Event Space  (For the use of office tenants)  Common Plaza  (for all users)  3rd floorFloor Office Tower  3rd Floor Creative Office Building  Central to Broadwest Project  In addition to the Building Amenities outlined above, Landlord commits to construct the following  components as part of the overall Broad west Project:  • A luxury hotel of approximately 234 rooms (estimated opening date of 1st calendar quarter  2022)  • A luxury residential condominium with approximately 196 units (estimated delivery date  of 3rd calendar quarter 2021)  • Approximately 42,000 +/-square feet ofretail space demised into 8 or more spaces that is  designed to provide restaurant and other service retail to complement the overall Broadwest  Project. (delivery date commensurate with office building delivery date)  Should the Landlord fail to deliver these components as part of the normal development timeline  for the Broadwest Project (subject to Force Majeure as outlined in this Lease), then Landlord will  be deemed to have defaulted under this lease and the Tenant will have the rights and remedies  hereunder. Once the Landlord has delivered these components, then this requirement is deemed  to have been satisfied and the subsequent operations and/or alterations of such components of the  Project shall have no bearing on this Lease.  72  EXECUTION VERSION  





 






EXHIBITC  Form of Commencement Certificate  COMMENCEMENT CERTIFICATE  This Commencement Certificate is made and entered into as of the __ day of ___ ~  20_, between 1600 West End Partners, LLC, a Tennessee limited liability company  ("Landlord") and , a corporation  ("Tenant"), and shall be attached to and made a part of that certain Office Lease Agreement  between Landlord and Tenant dated (the "Lease"). Pursuant to the  provisions of the Lease, Landlord and Tenant intending to be legally bound hereby, agree to the  following:  a. The Effective Date of the Lease is 20 ------.../  b. The Commencement Date is 20 ------.J  c. Pursuant to the provisions of Section 1.2 (if and as applicable) and notwithstanding  the provisions of the Lease Summary, (i) the Leased Premises' Usable Area is square  feet and Rentable Area is square feet and (ii) Tenant's Proportionate Share is __ %.  The changes, if any in Tenant's Percentage Share, the Base Rental, the number of parking spaces  to be available for lease to the Tenant under this Lease are set forth on Schedule 1 hereto and the  Lease shall be and is hereby amended as set forth on such Schedule 1.  d. Except as may be set forth on Schedule 2 hereto, Tenant agrees that, as of and  through the date hereof, Landlord has fully and timely complied with and performed each and  every of its obligations with respect to delivery of the Base Building as set forth in the Lease.  IN WITNESS WHEREOF, the parties have duly executed this supplement to the Lease as  of the day and year first above written.  [Signature page follows}  73  EXECUTION VERSION  [Signature page to Commencement Certificate]  LANDLORD:  1600 West End A venue Partners, LLC,  a Tennessee limited liability company  By:  Name:  ~~~~~~~~~~~~~~~  Title:  TENANT:  Cumberland Pharmaceuticals Inc.,  a Tennessee corporation  By:  Name:  ~~~~~~~~~~~~~~~  Title:  EXECUTION VERSION  74  EXHIBITD  Express Non-Permitted Uses  1. Any use that would adversely affect the appearance of the Project;  2. Any use, except for general office or retail use, that would have any "negative" visual affect  from the exterior of, or the public areas of, the Project;  3. Any use that would adversely affect ventilation in other areas of the Project (including  without limitation, the creation of offensive odors);  4. Any use that would create unreasonable elevator loads or cause structural loads to be  exceeded;  5. Any use that would create unreasonable noise levels, otherwise unreasonably interfere with  Project operations or other tenants of the Project, or violate Legal Requirements;  6. Any use by a federal, state or municipal government or authority, or any political  subdivision of any of them, any agency exercising governmental authority or any agency  or entity generally considered by the public to be a governmental agency or entity (e.g.,  the United States Postal Service);  7. Any "second hand" store, resale shop or "surplus" store;  8. Any fire or bankruptcy sale or auction house operation;  9. Any bowling alley, billiard parlor, theatre, entertainment  amusement arcade, game room, or amusement center;  center, skatingrink or other  10. Any pet store or any store that involves in a material way the presence on the Leased  Premises of any animals, insects or fish (the presence of service animals shall be deemed  not to violate this restriction);  11. Any adult bookstore, movie or video store, or other similar store;  12. Any car, truck, equipment or other consumer rental facility;  13. Any hospital, dental office, optician's office, physician's office, clinic or other health care  facility for the onsite treatment of patients;  14. Any convenience store or "mom & pop" grocery store;  15. Any discount-oriented uses;  16. Any modeling studio or similar establishment;  17. Any central laundry, dry cleaning plant or laundromat;  75  EXECUTION VERSION  18. Any religious, charitable, missionary or social service organizations;  19. Any political, fund raising or advocacy groups;  20. Any automobile showroom of any kind;  21. Any bar, nightclub or other drinking establishment except for a bar that is part of a  restaurant or a bar located within the hotel.  22. Any tattoo shop or parlor.  23. Any massage parlor, tanning salon, barber, ladies hair salon, modeling studio or similar  establishment, unless located in the retail portion of the development.  All restrictions concerning the above non-permitted uses shall be reasonably enforced by the  Landlord for the mutual benefit of all tenants leasing space, from time to time, in the Building.  76  EXECUTION VERSION  





 






EXHIBITE  Project Rules  1. The sidewalks and public portions of the Project, such as entrances, passages,  courts, elevators, vestibules, stairways, corridors or halls, and the streets, alleys or ways  surrounding or in the vicinity of the Project shall not be obstructed, even temporarily, or  encumbered by Tenant or used for any purpose other than ingress and egress to and from the  Leased Premises.  2. No awnings or other projections (other than approved Tenant signage) shall be  attached to the outside walls of the Project. No curtains, blinds, shades, louvered openings, tinted  coating, film or screens shall be attached to or hung in, or used in connection with, any window,  glass surface or door of the Premises, without the prior written consent of Landlord, unless  installed by Landlord.  3. No sign, advertisement, notice or other lettering shall be exhibited, inscribed,  painted or affixed by Tenant on any part of the outside of the Leased Premises (other than approved  Tenant signage) or the Project or on corridor walls or windows or other glass surfaces (including  without limitation glass storefronts). Landlord will order and provide, at Tenant's expense,  building standard suite signs. Signs on doors may, at Tenant's expense, be inscribed, painted or  affixed for each tenant by sign makers approved by Landlord. In the event of the violation of the  foregoing by Tenant, Landlord may remove same without any liability, and may charge the  expense incurred by such removal to Tenant.  4. The sashes, sash doors, skylights, windows, heating, ventilating and air  conditioning vents and doors that reflect or admit light and air into the halls, passageways or other  public places in the Project shall not be covered or obstructed by Tenant, nor shall any bottles,  parcels or other articles be placed on the window sills.  5. No show cases or other articles shall be put in front of or affixed to any part of the  exterior of the Project, nor placed in the public halls, corridors or vestibules without the prior  written consent of Landlord.  6. The water and wash closets and other plumbing fixtures shall not be used for any  purposes other than those for which they were constructed, and no sweepings, rubbish, rags or  other substances shall be thrown therein. All damages resulting from any misuse of the fixtures  shall be borne by Tenant.  7. Tenant shall not in any way deface any part of the Leased Premises or the Project. If  Tenant desires to use linoleum or other similar floor covering, an interlining of builder's deadening  felt shall be first affixed to the floor, by a paste or other material, soluble in water; the use of  cement or other similar adhesive materials, which are not water soluble, are expressly prohibited.  8. No bicycles, vehicles, or animals of any kind (except for service animals) shall be  brought into or kept in or about the Leased Premises. No cooking shall be done or permitted by  Tenant on the Leased Premises except in conformity to law and then only in the utility kitchen, if  77  EXECUTION VERSION  any, as set forth in Tenant's layout, which is to be primarily used by Tenant's employees for  heating beverages and light snacks. Tenant shall not cause or permit any unusual or objectionable  odors to be produced upon or permeate from the Leased Premises.  9. No space in the Project shall be used for manufacturing or distribution, for the  storage of merchandise or for the sale of merchandise, goods or property of any kind at auction.  10. Tenant shall not make, or permit to be made, any unseemly or disturbing noises or  disturb or interfere with occupants of the Project or neighboring buildings or premises or those  having business with them, whether by the use of any musical instrument, radio, talking machine,  unmusical noise, whistling, singing, or in any other way. Tenant shall not throw anything out of  the doors, windows or skylights or down the passageways. Tenant shall not cause or permit any  unseemly or disturbing activity or conduct to be visible through any window, opening, doorway,  glass storefront or other glass surface or any other means of visibility that disturbs or interferes  with (i) tenants or other occupants of the Project or their licensees or invitees or (ii) neighboring  buildings or premises or those having business with them, including without limitation, receptions,  parties, recreation and other activities of a social nature not directly related to Tenant's use of the  Leased Premises.  11. Neither Tenant, nor any of Tenant's servants, employees, agents, visitors or  licensees, shall at any time bring or keep upon the Leased Premises any inflammable, combustible  or explosive fluid, or chemical substance, other than reasonable amounts of cleaning fluids or  solvents required in the normal operation of Tenant's business offices.  12. No additional locks or bolts of any kind shall be placed upon any of the doors or  windows by Tenant, nor shall any changes be made in existing locks or the mechanism thereof,  without the prior written approval of Landlord and unless and until a duplicate key is delivered to  Landlord. Tenant shall, upon the termination of its tenancy, return to Landlord all keys of stores,  offices and toilet rooms, either furnished to, or otherwise procured by, Tenant, and in the event of  the loss of any keys so furnished, Tenant shall pay to Landlord the cost thereof.  13. Tenant shall not overload any floor. Tenant shall obtain Landlord's consent before  bringing any safes, freight, furniture or bulky articles into the Project, and Landlord can specify to  Tenant the location for the placement of such articles. All removals, or the carrying in or out of  any safes, freight, furniture or bulky matter of any description must take place during the hours  that Landlord or its agent may determine from time to time. Landlord reserves the right to inspect  all freight to be brought into the Project and to exclude from the Project all freight that violates  any of these Project rules or the Lease of which these Project rules are a part.  14. If Tenant desires any waxing, polishing or other janitorial or maintenance services  with respect to the Leased Premises or any of Tenant's furniture, fixtures or equipment that is  beyond the scope of Landlord's responsibility under this Lease, Tenant agrees to employ such  janitorial or maintenance contractor as Landlord may from time to time designate for such services.  Tenant agrees that it shall not employ any other janitorial or maintenance contractor, nor any  individual, firm or organization for such purpose without Landlord' s prior written consent.  78  EXECUTION VERSION  15. Landlord shall have the right to prohibit any advertising by Tenant (other than  Tenants approved signage) that, in Landlord's opinion, tends to impair the reputation of the Project  or its desirability as a building for offices, and upon written notice from Landlord, Tenant shall  refrain from or discontinue such advertising.  16. Landlord reserves the right to exclude from the Project between the hours of 6:00  p.m. and 7:00 a.m. and at all hours on Sundays, legal holidays and after 2:00 p.m. on Saturdays all  persons who do not sign in and out on a register in the lobby of the Building, showing the name of  the person, the premises visited and the time of arrival and departure. All such persons entering  or leaving the Building during such times may be expected to be questioned by the Building  security personnel as to their business in the Building. Unless Landlord is grossly negligent,  Landlord shall in no case be liable for damages for any error with regard to the admission to or  exclusion from the Project of any person. In the case of invasion, mob, riot, public excitement or  other circumstances rendering such action advisable in the Landlord's opinion, Landlord reserves  the right to prevent access to the Project during the continuance of the same by such action as  Landlord may deem appropriate, including closing doors.  17. The requirements of Tenant will be attended to only upon application at the office  of Landlord or its property manager located at the Project. Employees of Landlord or its property  manager for the Project shall not perform any work or do anything outside of their regular duties,  unless under special instructions from the office of Landlord or its property manager.  18. Canvassing, soliciting and peddling in the Project are prohibited, and Tenant shall  cooperate to prevent the same.  19. There shall not be used in any space, or in the public halls of any building, either  by Tenant or by its jobbers or others, in the delivery or receipt of merchandise, any hand trucks,  except those equipped with rubber tires and side guards. No hand trucks shall be used in passenger  elevators.  20. Tenant, in order to obtain maximum effectiveness of the cooling system, shall lower  and/or close the blinds or drapes when sun's rays fall directly on windows of the Leased  Premises. Tenant shall not remove the standard blinds installed in the Leased Premises without  Landlord's prior written consent.  21. All paneling, rounds or other wood products not considered furniture shall be of  fire retardant materials. Before installation of any such materials, certification of the materials'  fire retardant characteristics shall be submitted to Landlord or its agents, in a manner satisfactory  to Landlord.  22. All articles and the arrangement style, color and general appearance thereof, in the  interior of the Leased Premises that will be visible from the exterior thereof, including, without  limitation, window displays, advertising matter, signs, merchandise, furniture and store fixtures,  shall be subject to Landlord's approval, and, in any case, shall be maintained in keeping with the  character and standards of the Project.  79  EXECUTION VERSION  23. Landlord may waive any one or more of these Project rules for the benefit of any  particular tenant or tenants, but no such waiver by Landlord shall be construed as a waiver of such  Project rules in favor of any other tenant or tenants, nor prevent Landlord from thereafter enforcing  any such Project rules against any or all of the tenants of the Project.  24. Tenant shall abide by no-smoking restrictions in all areas within the Project, other  than tenant spaces, designated or posted by Landlord as no-smoking areas.  25. These Project rules are in addition to, and shall not be construed to in any way  modify or amend, in whole or part, the terms, covenants, agreements and conditions of the main  text of the Lease, which text shall control in the instance of conflict.  26. Landlord reserves the right to make such other commercially reasonable rules and  regulations as, in its judgment may, from time to time, be needed for safety, care and cleanliness  of the Project, and for the preservation of good order therein. Such other rules and regulations  shall be effective upon written notification to Tenant and shall be reasonably enforced by the  Landlord for the mutual benefit of all tenants leasing space, from time to time, in the Building.  80  EXECUTION VERSION  





 






EXHIBIT F  Work Letter  This Exhibit F (this "Work Letter") sets forth obligations of Landlord and Tenant with  regard to construction of the Base Building, delivery of the Leased Premises, construction of the  Tenant Improvements, and the Tenant Improvement Allowance.  The elevations and renderings contemplate that the Building shall be a 21-story office  building, including one or more amenity levels. Landlord covenants that the Project, inclusive of  the Building, shall be constructed in general conformance with the elevations.  1. Construction of the Base Building and Delivery of the Leased Premises.  A. To the extent not already obtained or completed as of the Effective Date,  Landlord shall continually and diligently pursue at its sole cost and expense securing all necessary  approvals for and construction of the Base Building (including the Base Building components of  the Leased Premises). Landlord shall keep Tenant apprised of the progress of Base Building  construction, including issuing updated construction schedules with the specific purpose of  keeping Tenant advised of when construction of Tenant Improvements will begin and be  completed.  B. As of the Effective Date, the Lease Premises is in a condition ready for  Tenant to begin construction of the Tenant Improvements ("TI Ready Condition").  C. Intentionally omitted.  D. On the date of commencement of tenant improvements, subject to Base  Building warranties, Tenant shall take and accept the Leased Premises "AS IS, WHERE IS",  subject to Landlord's Punch List Items (which shall in no event delay or postpone the Delivery  Date), sub-section (E) below, and Landlord makes no representations or warranties with respect to  the Leased Premises, except as may otherwise be expressly set forth in this Lease.  ADDITIONALLY, LANDLORD MAKES NO WARRANTIES, EXPRESS OR IMPLIED,  WITH RESPECT TO THE PROJECT (INCLUDING THE LEASED PREMISES), AND ALL  IMPLIED WARRANTIES WITH RESPECT TO THE PROJECT (INCLUDING THE LEASED  PREMISES), INCLUDING WITHOUT LIMITATION THOSE OF SUIT ABILITY AND  FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY NEGATED AND  WAIVED.  E. With respect to the Base Building components of the Leased Premises,  Tenant, Landlord, Tenant's Architect, the Tenant's Representative and general contractor shall  jointly conduct a walk-through of the Leased Premises with respect to areas or components of the  Base Building which have not previously been completed in accordance with the Base Building  Conditions and applicable law and shall jointly prepare a punch list ("Landlords Punch List") of  items, if any, necessary to so complete ("Landlord s Punch List Items"). Landlord shall commence  the rectification of the deficiencies noted on Landlord's Punch List within ten (10) business days  after finalization of Landlord's Punch List, and shall, within sixty (60) days after Landlord's Punch  List is prepared and agreed on by Landlord and Tenant, complete such Landlord's Punch List  81  EXECUTION VERSION  Items (provided that such sixty ( 60)-day period shall be extended as necessary if the work cannot  reasonably be completed in such time, so long as Landlord continues to diligently prosecute same  until completion).  2. Certain Definitions. In addition to the terms that are defined elsewhere in the Lease  (all of which definitions are incorporated herein except to the extent a different meaning for a  specific term is expressly provided herein) or elsewhere in this Exhibjt F, the following terms shall  have the following meanings:  (i) Base Building Condition. The term "Base Building Condition" means the  condition of the Leased Premises described in Exhibit F-1 hereto.  (ii) Building Standard. The terms "Building Standard" and "Building standard"  mean the standard of all material, finishes and workmanship established by Landlord for  the Building and, in any event, consistent with or better than First Class Standards.  (iii) Drawings and Specifications. The term "Drawings and Specifications"  means the final drawings, specifications and finish schedules for the construction of the  Tenant Improvements in, on or appurtenant to the Leased Premises, which shall be  prepared by Tenant's Architect (defined below) and approved by Landlord pursuant to the  provisions of this Exhibit F. The Drawings and Specifications shall include, without  limitation, complete, detailed architectural drawings and specifications for Tenant's  partition layout, reflected ceiling and other installations and complete, detailed mechanical  and electrical plans and specifications for installation of air conditioning systems, fire  protection and electrical systems.  (iv) First Class Standards. The term "First Class Standards" means a quality that  equals or exceeds the quality of newly constructed first class major office projects of  comparable size to the Project that are located in Nashville, Tennessee. Such newly  constructed first class buildings include, but are not limited to, the buildings known as  Gulch Union, Peabody Plaza and 222 2nd A venue Building.  (v) Landlord Delays. The term "Landlord Delays" means any actual delay in  Substantial Completion of the core and shell of the Base Building and of the Base Building  improvements, the Tenant Improvement Work or either that is due, directly or indirectly,  to any act or omission of Landlord, its agents, contractors or employees but specifically  does not include Force Majeure. Tenant shall use reasonable efforts to notify Landlord of  any Landlord Delay within ten (10) business days after becoming actually aware of the  occurrence of the event causing such Landlord Delay, but shall not be prejudiced in  determination of holdover or other damages due to Tenant from Landlord by its failure to  do so. Landlord will have the right to reasonably contest Tenant's assessment of the  existence and extent of any Landlord Delay. Both Landlord and Tenant will attempt, at  the end of the construction period, to determine whether or not each Landlord Delay caused  an actual delay or whether such Landlord Delay can or could be mitigated or alleviated.  (vi) Punch List Items. The term "Punch List Items" means details of  construction, decoration and mechanical adjustment that, in the aggregate, are minor in  82  EXECUTION VERSION  character and do not interfere materially with Tenant's use or enjoyment of the Leased  Premises.  (vii) Substantial Completion. The terms "Substantial Completion",  "Substantially Complete" and grammatical variations thereof with respect to the Tenant  Improvement Work mean the date when the Tenant Improvement Work within the Leased  Premises shall have been completed except for Punch List Items, and Tenant has received  a certificate of substantial completion from Tenant's Architect and a conditional use and  occupancy permit for the Leased Premises issued by the appropriate Governmental  Authority to be replaced within ninety (90) days with an unconditional use and occupancy  permit. Landlord and Tenant agree that if they mutually concur, compliance with any of  the conditions set forth in this subsection would have occurred earlier but for Tenant  Delays, compliance with such conditions, and thus Substantial Completion, shall be  deemed to have occurred on the date that such compliance would have occurred but for  such Tenant Delays. Landlord must notify Tenant of any Tenant Delay within ten (10)  business days after becoming aware of the occurrence of the event causing such Tenant  Delay. Tenant shall have the right to reasonably contest Landlord's assessment of Tenant  Delay. Notwithstanding anything in the Lease to the contrary, Tenant's occupancy of the  Leased Premises for the purpose of conducting business therefrom shall constitute  Substantial Completion of the Tenant Improvement Work as to the portion of the Premises  used by Tenant for the commencement of its Permitted Use and conduct of business  therein.  (viii) Tenant Delays. The term "Tenant Delays" means Tenant's failure to deliver  its final plans by February 1, 2022, and any actual delay in Substantial Completion of the  Tenant Improvement Work that is due solely to any act or omission of Tenant, its agents,  contractors or employees and specifically does not include either Force Majeure or delays  caused by the Landlord .. In determining any days or other interval of Tenant Delay, to the  extent delay occurs that is, in part of wholly attributable to the Landlord, such days or other  time interval shall not be counted or included as Tenant Delay.  (ix) Tenant Improvements. The term "Tenant Improvements" means all  improvements constructed or installed in, on or appurtenant to the Leased Premises in  accordance with the Drawings and Specifications.  (x) Tenant Improvement Work. The term "Tenant Improvement Work" means  all general conditions, labor, equipment, materials and appurtenances necessary to fully  complete the construction, finishing and installation of all of the Tenant Improvements, in  compliance with all applicable Legal Requirements (including building codes) and at no  expense to Landlord (subject to the Allowance), including, without limitation, the  following:  (1) Electrical and telephone located within the Leased Premises or  outside the Leased Premises to the extent serving only the Leased Premises:  (a) All light switches within the Leased Premises.  83  EXECUTION VERSION  (b) All electrical outlets and all conduit and wiring throughout  the Leased Premises for electrical power, including connections to the Building  Standard electrical panels in the core of the Building.  ( c) All telephone and data outlets, conduit and wmng  throughout the Leased Premises and any necessary connections in the Building  core.  ( d) All light fixtures, all panel boards, and all conduit and wiring  for lights throughout the Leased Premises and connections to Building Standard  electrical panels in the core of the Building, and any increase to the number of or  alterations to Building Standard panel boards. All ceiling light fixtures and the  spacing thereof shall be subject to the standards established by Landlord therefor  and shall run in the direction established by Landlord and as approved by Tenant  for the Leased Premises.  ( e) Any provision for supplying power to the Leased Premises  beyond the Building Standard rated electrical design load or in excess of the  capacity provided by per floor, including necessary metering to measure excess  electrical usage, excluding any Common Area or Base Building improvements.  (f) All exit light fixtures, exit signs and emergency circuits  excluding any Common Area or Base Building elements.  (2)  sprinkler system.  Any modification to or deviation from the Building Standard  (3) Tenant's ceiling construction, including the suspended ceiling  system and ceiling tile.  ( 4) All fire alarm devices, including speakers and lights, required within  the Leased Premises by applicable codes.  (5) All plumbing work for facilities such as toilets and sinks in the  Leased Premises in addition to the plumbing work, toilets, sinks and related facilities  provided in Base Building Condition.  (6) All partitions including finish, the sheetrock and finish of the tenant  side of any common corridor walls which are within the Leased Premises and the finish to  the inside of the Building's perimeter walls.  (7) All doors, frames and hardware not included in the Base Building  Condition.  (8) All floor finish including base, the leveling of any floors to a  tolerance in excess of Base Building Standard, any construction work for floor slab  penetrations, and any construction work for special floor loading requirements.  84  EXECUTION VERSION  





 






(9)  Specifications.  Any special construction as shown on the Drawings and  (10) Tenant's identification sign(s) conforming to Landlord's standards,  at entrances to the Leased Premises.  (11) Tenant's communication and telephone equipment and installation  thereof.  (12) Any modifications to or deviations from the Building Standard air  conditioning system, including but not limited to (a) materials and installation of  components to support the Building Standard system, (b) all additional duct work  throughout the Leased Premises, (c) fire dampers as required by Tenant's layout design,  ( d) provision and installation of thermostats, ( e) capacity beyond design standards,  including any supplemental HVAC and/or exhaust systems, (f) nonstandard equipment,  such as special diffusers and returns, and (g) test and balance work.  (13) Elevator lobbies on all floors fully leased by Tenant, including floor  finish and base, wall finish and ceilings.  The Tenant Improvement Work comprises the completed construction and installation  required to fully complete the Tenant Improvements required by or shown on the Drawings  and Specifications (including any amendments, additions or changes to the Drawings and  Specifications) and includes all labor and services (including temporary electricity and  water) necessary to timely and fully produce such construction and installation, all  materials and equipment incorporated, or to be incorporated, in such construction or  installation (including any labor, materials or services furnished pursuant to any change  orders or in accordance with any other changes, modifications or additions to construction),  and all permits, approvals, inspections and certificates required for the construction of the  Tenant Improvements and the approval thereof by any and all Governmental Authorities  having jurisdiction in accordance with Legal Requirements.  3. Drawings and Specifications. The Drawings and Specifications shall be prepared  by Tenant's Architect and approved by Landlord in accordance with the following procedure:  (i) Within thirty (30) days after the Effective Date, Tenant shall inform  Landlord of the identity of the architect whom Tenant desires to use to prepare final  working drawings and specifications necessary to commence construction of the Tenant  Improvements. Landlord shall have the right of approval, such approval not to be  unreasonably withheld, conditioned or delayed, over any architect selected by Tenant.  Within five (5) business days after Tenant informs Landlord of the identity of the architect  selected by Tenant, Landlord shall advise Tenant of Landlord's decision either approving  or disapproving the architect selected by Tenant, and Landlord shall specify the reasons for  Landlord's disapproval if Landlord disapproves the architect selected by Tenant.  85  EXECUTION VERSION  (ii) The architect selected by Tenant and approved by Landlord pursuant hereto  shall be referred to as the "Tenant's Architect". Tenant shall commence working with  Tenant's Architect promptly so that final working drawings and specifications can be  prepared for Landlord's approval, and Tenant further agrees that such work shall be  performed in accordance with professional standards for design and construction criteria.  (iii) Tenant shall deliver to Landlord not later than February 1, 2022 Tenant's  proposed final working Drawings and Specifications and other construction documents for  the Tenant Improvements. Landlord shall within fifteen (15) days review and resubmit the  same to Tenant, either with Landlord's approval, or with Landlord's approval subject to  reasonable comments, or with Landlord's disapproval. Tenant shall resubmit any such  drawings and specifications that are returned by Landlord without complete approval as  promptly as possible, and such resubmitted drawings and specifications shall contain the  information or changes reasonably required by Landlord or other appropriate response and  Landlord shall review and resubmit within ten (10) days to Tenant. Once such drawings  and specifications or resubmitted drawings and specifications are approved by Landlord,  the same shall constitute the Drawings and Specifications for purposes of this Exhibit F.  (iv) Once the Drawings and Specifications have been approved or deemed  approved by Landlord, the Drawings and Specifications may not be revised without  Landlord's approval, not to be unreasonably withheld or conditioned. If Tenant desires to  make revisions to the Drawings and Specifications, Tenant shall deliver to Landlord any  such proposed revisions to the Drawings and Specifications. Landlord shall promptly  review and resubmit the same to Tenant, either with Landlord's approval, or with  Landlord's approval subject to comments, or with Landlord's disapproval. Tenant shall  resubmit any such revisions that are returned by Landlord without complete approval as  promptly as possible, and such resubmitted revisions shall contain the information or  changes reasonably required by Landlord or other appropriate response. If Landlord fails  to respond within five (5) days after receiving such resubmitted revisions, Landlord shall  be deemed to have given its approval. Once such revisions or resubmitted revisions are  approved by Landlord, the drawings and specifications, as revised, shall constitute the  Drawings and Specifications for purposes of this Exhibit F.  4. Tenant Improvement Costs.  A. Timely Payments. Subject to Landlord's obligation to remit timely  payments to Tenant in accordance with Section 6(G) below, Tenant shall pay all payments of the  Tenant Improvement Costs (defined below) in a timely manner and prior to delinquency of any  such payments. Such requirement shall not, however, be intentionally interrupted to impair  Tenant's rights to dispute the performance of such work in accordance with procedures set forth  in the governing documents.  B. Prudent Draw Procedures. Tenant shall process and pay all draw requests  for the Tenant Improvement Costs in accordance with prudent construction draw practices,  including, without limitation, requiring appropriate lien waivers (including from subcontractors),  certificates, affidavits and documentation from the general contractor as proof of payment for each  draw request.  86  EXECUTION VERSION  C. Draw Requests and Evidence of Pavment. Within ten (10) days after  receiving any draw request, invoice or statement for any of the Tenant Improvement Costs, Tenant  shall provide Landlord with a copy of the same, including all supporting documentation submitted  therewith. Within ten (10) days after paying any draw request, invoice or statement for any of the  Tenant Improvement Costs or any other payment of the Tenant Improvement Costs, Tenant shall  provide Landlord with evidence of such payment.  D. Notice of Disputes. Immediately upon Tenant's becoming aware of any  dispute with respect the performance of the Tenant Improvement Work or the payment of the  Tenant Improvement Costs between or among any 2 or more of Tenant, Tenant's Architect,  Tenant's Contractor (defined below), and any contractor, subcontractor or supplier providing or  performing any services, materials, tools or equipment in connection with the performance of the  Tenant Improvement Work, Tenant shall provide Landlord with notice of such dispute, and Tenant  shall thereafter promptly provide Landlord with such information and documentation with respect  to such dispute and the resolution thereof as may be reasonably requested by Landlord.  E. Discharge of Liens. Tenant shall comply with the provisions of Section  5.4(D) relative to liens. Without limiting any provision thereof, subject to Tenant's rights to contest  liens in accordance with the provisions of Section 5.4(D), ifTenant shall fail to cause such lien or  claim of lien to be so discharged or bonded in accordance with such provisions, then in addition  to any other right or remedy it may have, Landlord may, but shall not be obligated to, discharge  the same by paying the amount claimed to be due or by procuring the discharge of such lien or  claim by deposit in court or bonding, and in any such event, Landlord shall be entitled, if Landlord  so elects, to compel the prosecution of any action for the foreclosure of such lien or claim by the  claimant and to pay the amount of the judgment, if any, in favor of the claimant, with interest,  costs and allowances. Tenant shall pay as Additional Rent on demand, from time to time, any sum  or sums so paid by Landlord and all actual and reasonable costs and expenses incurred by  Landlord, including, but not limited to, attorneys' fees, in processing such discharge or in  defending any such action. If and to the extent Tenant fails to make such payment to Landlord,  then in addition to any other right or remedy it may have, Landlord may, at its option, offset all or  any portion of such unpaid payment against the Tenant Improvement Allowance.  5. Tenant Improvement Allowance.  A. Tenant Improvement Allowance. Subject to the terms and conditions of the  Lease and this Exhibit F, Landlord shall provide Tenant with the Tenant Improvement Allowance.  The Tenant Improvement Allowance shall be applied to the hard costs and soft costs of the Tenant  Improvement Work (collectively, the "Tenant Improvement Costs") as set forth herein. The  Tenant Improvement Allowance may be used for all hard Tenant Improvement Costs. The Tenant  Improvement Allowance may be used for the following approved soft Tenant Improvement Costs  and the following other approved costs incurred in conjunction with the Tenant Improvement  Work: (i) space planning, design and engineering fees and third party project management fees  (including cost segregation work); (ii) permits; (iii) acquisition, installation, and refurbishment (as  applicable) of built-in furniture systems installed at the time of the Tenant Improvement Work;  (iv) cabling; (v) installation of computer, telephone, and other operating systems (including related  to HVAC, electrical, plumbing, and other mechanical fees and moving expenses); (vi) movable  and modular furniture, emergency power systems, high-density files, audio/visual  87  EXECUTION VERSION  teleconferencing systems, and acquisition of computer, telephone and other operating systems  (including HV AC); (vii) signage costs; and (viii) to the extent any Tenant Improvement Allowance  remains following payment of all hard costs and all other approved soft costs of the Tenant  Improvement Work and all of the foregoing (as applicable), such remaining balance of Tenant's  Improvement Allowance may, at Tenant's option, be applied to Tenant's moving expenses to the  Leased Premises and any expansions that may occur in the Building prior to the Commencement  Date. In no event shall Landlord be obligated to pay any portion of the Tenant Improvement  Allowance while an Event of Default (following the expiration of all notice and cure periods in  the Lease) under the Lease has occurred and is continuing or until such Event of Default is cured.  B. Intentionally Omitted.  C. Tenant Contractor's Fee. Any fee paid by Tenant to Tenant's Contractor  shall be payable as a cost of the Tenant Improvement Work and be subject to reimbursement as  part of the Tenant Improvement Allowance.  D. Landlord's Construction Management Fee. If Tenant elects to have  Landlord oversee the construction of the Tenant Improvements, Tenant shall pay Landlord a  construction management fee equal to three percent (3%) of the Tenant Improvement Costs which  payment may be funded out of Tenant's Improvement Allowance. If Tenant selects a Tenant  Contractor with sufficient management and oversight capabilities to complete the Tenant  Improvements and such Tenant Contractor is approved by Landlord, then no construction  management fee will be due to Landlord.  E. Failure to Pay Tenants Costs. Failure by Tenant to pay the Tenant  Improvement Costs in accordance with this Exhibit F will constitute an Event of Default by Tenant  under the Lease.  6. Performance of Tenant Improvement Work By {Tenant/Landlord}.  A. General. {Tenant/Landlord} [to be discussed; and construction manager]  shall be obligated diligently to manage and coordinate the performance of the Tenant Improvement  Work so as to cause Substantial Completion of the Tenant Improvement Work to occur when  contemplated by the Schedule for Planning and Construction of Tenant Improvements to be  included with the Drawings and Specifications (the "Approved Schedule"), unless completion of  the Tenant Improvement Work is prevented by reason of any {Tenant/Landlord} Delays or Force  Majeure events.  B. Approval of Contractors. Tenant shall obtain Landlord's prior approval of  the contractor Tenant chooses to perform the Tenant Improvement Work ("Tenant's Contractor")  and the mechanical and electrical subcontractors to be engaged in connection with the Tenant  Improvement Work, such approval of Landlord not to be unreasonably withheld, conditioned or  delayed. Landlord will respond to any request for approval of Tenant's Contractor and the  mechanical and electrical subcontractors, stating the reasons for any disapproval, within ten ( 10)  business days after Landlord receives notice from Tenant specifying the proposed Tenant's  Contractor and/or mechanical and electrical subcontractors. Landlord shall have no responsibility  for any defects or deficiencies in the Tenant Improvement Work performed by Tenant through  88  EXECUTION VERSION  





 






Tenant's Contractor, and no approval by Landlord of the identity of Tenant's Contractor or any  mechanical or electrical subcontractors to be engaged in connection with the Tenant Improvement  Work shall create or give rise to any such responsibility.  C. Approval of Contracts. Tenant shall obtain the prior approval of Landlord  of all direct contracts between Tenant and any person or entity providing or performing any  services, materials, tools or equipment in connection with the performance of the Tenant  Improvement Work, including Tenant's Architect and Tenant's Contractor, such approval of  Landlord not to be unreasonably withheld, conditioned or delayed. Landlord will respond to any  request for approval of any such direct contract, stating the reasons for any disapproval, within 10  business days after Landlord receives such direct contract and Tenant's request for Landlord's  approval for Tenant's Architect and Tenant's Contractor thereof.  D. Coordination. Tenant shall contract directly with Tenant's Contractor for  the performance of the Tenant Improvement Work. Landlord shall fully cooperate with Tenant  and Tenant's Contractor in the performance of the Tenant Improvement Work, including, but not  limited to: (i) furnishing adequate water, electricity, freight elevator service (at scheduled hours as  determined by Landlord'), loading dock (but no dumpster facilities) and HVAC (to the extent  available); (ii) providing Tenant's Contractor with access to the Leased Premises on a 24-hour  basis, if required by Tenant and reasonably necessary for Tenant to complete the Tenant  Improvement Work; provided, however, if such access requires additional security or access  control personnel, it shall be at the expense of Tenant; and (iii) cooperating in the connection of  any of such work to the Base Building Systems. Notwithstanding the foregoing, all access to and  use of loading docks, elevators, hoists, electrical systems and other related facilities shall be  without charge to Tenant (except as otherwise expressly provided above) and shall be non­ exclusive, Tenant hereby acknowledging that Landlord shall have the right to impose and enforce  reasonable rules and regulations for the shared use of Project facilities by Tenant, Tenant's  Architect, and Tenant's Contractor and its subcontractors, and other persons or entities performing  work at the Project.  E. Certain Requirements. Tenant and Tenant's Contractor shall perform the  Tenant Improvement Work as follows:  (i) All of Tenant Improvement Work shall be done and installed in a  good and workmanlike manner, in a manner equal to or better than Building Standards,  and in compliance with all reasonable rules and regulations promulgated by Landlord from  time to time and all Legal Requirements. Landlord and its representatives (including its  general contractor) shall have the right to inspect the Tenant Improvement Work from time  to time to ensure compliance with the foregoing.  (ii) In connection with the Tenant Improvement Work, Tenant shall file  all approved plans and specifications and other materials, pay all fees and obtain all permits  and applications from any Governmental Entities having jurisdiction, and Tenant shall  obtain a certificate of occupancy and all other approvals required for Tenant to use and  occupy the Leased Premises. Landlord shall cooperate with Tenant to facilitate the  efficient processing of all such permits and applications. Copies of all permits, certificates  and approvals shall be forwarded to Landlord promptly after receipt by Tenant.  89  EXECUTION VERSION  (iii) No item shall be mounted or hung from the exterior of the Building  by Tenant or Tenant's Contractor without Landlord's prior approval, not to be  unreasonably withheld, conditioned or denied.  (iv) Tenant shall be responsible for all waste and trash disposal.  F. Insurance. Tenant shall provide or cause to be provided the following types of  insurance during the construction of the Tenant Improvement Work:  (i) At all times during the period between the commencement of  construction of the Tenant Improvement Work and the date the Tenant Improvement Work  is completed and Tenant commences occupancy of the Leased Premises for business  purposes, Tenant shall maintain or cause to be maintained casualty insurance in Builder's  Risk Form, covering Landlord, Landlord's lender, Landlord's agents, Landlord's  architects, Landlord's contractors and subcontractors, as well as Tenant and Tenant's  contractors and subcontractors, as their interests may appear, against loss or damage by  fire, vandalism, malicious mischief and such other risks as are customarily covered by the  so-called broad form extended coverage endorsement upon all the Tenant Improvement  Work in place and all materials stored at the site of the Tenant Improvement Work and all  materials, equipment and supplies of all kinds incident to the Tenant Improvement Work  and builder's machinery, tools and equipment used in the construction of the Tenant  Improvement Work while in or on the Leased Premises or the Project, or when adjacent  thereto, all on a completed value basis to the full insurable value at all times. Said Builder's  Risk Insurance will also include coverage for loss of rents for a period of 12 months. Said  Builder's Risk Insurance shall contain an express waiver of any right of subrogation by the  insurer against Landlord, its agents, employees and contractors.  (ii) Liability insurance in amounts not less than as required by Section  6.1 of the Lease. Such liability insurance shall be on a comprehensive basis including:  (1) Leased Premises - Operations (including X-C-U);  (2) Independent contractors protection;  (3) Contractual Liability, including specified provisions for the  general contractor's obligations under this Exhibit F and for the general  contractor's indemnity obligations under this Exhibit F;  (4) Owned, non-owned and hired motor vehicles; and  (5) Broad form coverage for property damage.  (iii) Statutory Workers' Compensation Insurance as required by the State  of Tennessee or local municipality having jurisdiction.  All insurance policies procured and maintained pursuant to this Exhibit F shall name Landlord,  Landlord's mortgagee(s) and any additional parties designated by Landlord (which have an  insurable interest) as additional insureds and shall be carried with companies licensed to do  90  EXECUTION VERSION  business in the State of Tennessee reasonably satisfactory to Landlord. Such policies or duly  executed certificates of insurance with respect thereto shall be delivered to Landlord before the  commencement of the Tenant Improvement Work, and proof of renewals thereof shall be delivered  to Landlord at least thirty (30) days prior to the expiration of each respective policy term.  G. Disbursement of Tenant Improvement Allowance. The Tenant  Improvement Allowance shall be disbursed by Landlord to Tenant periodically, but not more  frequently than monthly, after receipt by Landlord of a draw request. Each draw request shall be  accompanied by evidence in form and content reasonably satisfactory to Landlord (including, but  not limited to, certificates and affidavits of Tenant, Tenant's Contractor, and Tenant's Architect)  showing and/or providing:  (i) other than matters properly disputed in accordance with applicable  construction documents, that all outstanding claims for labor, materials, fixtures and  equipment have been paid;  (ii) other than matters properly disputed in accordance with applicable  construction documents, that there are no liens outstanding against the Leased Premises or  the Project arising out of or in connection with the Tenant Improvement Work, including  conditional lien waivers from Tenant's Architect, Tenant's Contractor, and all other  contractors and subcontractors providing materials and/or labor under the subject draw  request;  (iii) that all construction performed prior to the date of the draw request  has been performed substantially in accordance with the Drawings and Specifications; and  (iv) that copies of all bills or statements for expenses for which the  disbursement is requested are attached to such draw request.  In the event the projected amount of the Tenant Improvement Costs shall exceed the Tenant  Improvement Allowance, then notwithstanding anything in this Exhibit F to the contrary, Tenant  shall be required to pay any projected excess, subject to retainage, prior to requesting or receiving  a disbursement of any portion of the Tenant Allowance not yet paid as required by this Exhibit F.  Tenant agrees that Tenant will provide for retainage of 5% of Tenant Improvement Work costs  from Tenant's Contractor, held and maintained in accordance with Legal Requirements and  prudent construction draw practices during the prosecution of the Tenant Improvement Work and  will not seek disbursement of any portion of the Tenant Improvement Allowance for any amounts  retained from Tenant's Contractor until such retainage amounts are due and owing to Tenant's  Contractor. Landlord and Tenant agree that the final 5% of the Tenant Improvement Allowance  shall not be funded by Landlord until the Tenant Improvement Work has been completed as  required by this Exhibit F and Tenant has provided to Landlord the information required by this  Exhibit F. Each draw request shall be submitted to Landlord at least fifteen (15) business days  prior to the date of the requested advance, and each draw request shall be made at the principal  office of Landlord or such other location as Landlord may designate from time to time. If Landlord  has obtained a loan to provide funding for, among other things, construction of improvements in,  on or to the Project that provides for monthly disbursements thereunder on approximately the same  day of each month, payment of installments of the Tenant Improvement Allowance shall be made  91  EXECUTION VERSION  to coincide with the scheduled monthly disbursements to Landlord of Landlord's construction  draws under its construction loan for the Project, whether or not Landlord actually receives a  disbursement under the construction loan on the scheduled date, so long as Landlord has received  Tenant's draw request at least fifteen (15) business days prior to the applicable scheduled  disbursement date. If any Event of Default under the Lease shall have occurred and shall not have  been cured, Landlord shall not be obligated to disburse or apply proceeds of the Tenant  Improvement Allowance until such default has been cured. In the event Landlord shall fail to  disburse any portion of the Tenant Improvement Allowance as required hereunder after notice of  such non-payment and the expiration of thirty (30) days, Tenant shall have the right, but not the  obligation, to make such disbursement and offset the amount so paid, along with interest at 10%  per annum, against the next payment of Rent due under the Lease.  H. Indemnity. Except in the case of Landlord's willful misconduct or gross  negligence, Tenant shall indemnify and hold harmless Landlord and any of Landlord's contractors,  agents and employees from and against any and all losses, damages, costs (including costs of suits  and reasonable attorneys' fees), liabilities and causes of action arising out of the actions of Tenant,  Tenant's Contractor or Tenant's Contractor's subcontractors during the course of the performance  of the Tenant Improvement Work, including, but not limited to, mechanics', materialmen's and  other liens and claims (and all costs and expenses associated therewith) asserted, filed or arising  as a result of or in connection with the performance of any of the Tenant Improvement Work. ALL  MATERIALMEN, CONTRACTORS, ARTISANS, MECHANICS, LABORERS AND OTHER  PARTIES HEREAFTER CONTRACTING WITH TENANT OR TENANT'S CONTRACTOR  FOR THE FURNISHING OF ANY LABOR, SERVICES, MATERIALS, SUPPLIES _OR  EQUIPMENT WITH RESPECT TO ANY PORTION OF THE LEASED PREMISES ARE  HEREBY CHARGED WITH NOTICE THAT THEY MUST LOOK SOLELY TO TENANT  FOR PAYMENT OF SAME. WITHOUT LIMITING THE GENERALITY OF THE  FOREGOING, TENANT SHALL REP AIR OR CAUSE TO BE REP AIRED AT ITS EXPENSE  ALL DAMAGE CAUSED BY TENANT'S CONTRACTOR, ITS SUBCONTRACTORS OR  THEIR EMPLOYEES. As set forth in the Lease, Tenant shall promptly pay to Landlord, upon  notice thereof from Landlord, any costs incurred by Landlord to repair any damage caused by  Tenant's Contractor or any of its subcontractors and any reasonable costs incurred by Landlord in  requiring compliance by Tenant's Contractor or any of its subcontractors with Landlord's rules  and regulations. Tenant agrees to cause Tenant's Contractor to provide an indemnification and  hold harmless agreement providing the protection set forth in this Subsection and to cause Tenant's  Contractor to procure, as additional protection, an indemnification and hold harmless agreement  from each subcontractor providing for the protection set forth in this subsection. In connection  with any and all claims against Landlord or any of its agents, contractors or employees by any  employee of Tenant's Contractor, any subcontractor, anyone directly or indirectly employed by  any of them, or anyone for whose acts Tenant's Contractor or any subcontractor may be liable, the  indemnification obligations of Tenant's Contractor and any subcontractor under the  indemnification and hold harmless agreements required by the foregoing provisions of this  Subsection shall not be limited in any way by any limitation on the amount or type of damages,  compensation or benefits payable by or for Tenant's Contractor or any subcontractor under  workers' compensation acts, disability benefit acts or other employee benefit acts.  I. Further Assurances. Upon and following Substantial Completion of the  Tenant Improvement Work, at the request of Landlord, Tenant shall, at Tenant's sole cost and  92  EXECUTION VERSION  





 






expense, provide evidence in form and content reasonably satisfactory to Landlord (including, but  not limited to, certificates and affidavits of Tenant, Tenant' s Contractor and, to the extent  appropriate, Tenant's Architect) showing and/or providing:  (i) that all outstanding claims for labor, materials and fixtures have  been paid;  (ii) that there are no liens outstanding against the Leased Premises or  the Project arising out of or in connection with the Tenant Improvement Work and all final  lien waivers from all parties providing materials and/or labor in connection with the Tenant  Improvement Work; and  (iii) that all construction prior to the date thereof has been done in  accordance with the Drawings and Specifications. To the extent there were additions or  modifications to the Drawings and Specifications previously provided to and approved by  Landlord, Tenant will provide as-built drawings and specifications to Landlord.  J. Excess Tenant Improvement Costs. For avoidance of doubt, in the event  the amount of the Tenant Improvement Costs shall exceed the amount of the Tenant Improvement  Allowance, such excess shall be borne and paid by Tenant.  7. Approved Schedule. Subject to the terms and conditions of this Exhibit F and the  Lease, Tenant and Landlord agree to use their best efforts to comply with the Approved Schedule  and to cooperate with one another in the performance of their respective obligations under the  Approved Schedule.  8. Tenant's Additional Work.  A. General. The moving into the Leased Premises, the installation of Tenant's  furniture, trade fixtures, equipment, computer systems, telephone systems and other  communication systems and all other work of a similar nature desired by Tenant, if any, that are  not included in the Tenant Improvement Work (collectively, the "Tenant's Additional Work")  shall be performed by Tenant or through contractors selected by Tenant and reasonably approved  by Landlord and in accordance with this Exhibit F. Tenant and Landlord acknowledge that the  performance and installation of certain of the Tenant's Additional Work, such as installation of  Tenant's modular furniture, is or may be required to be completed before the applicable  Governmental Entity will issue a certificate of occupancy for the Leased Premises, and Tenant  hereby agrees that the Tenant's Additional Work that is required to be completed as a condition to  the issuance of a certificate of occupancy for the Leased Premises shall be performed and installed  promptly and with due diligence and shall be completed so as to enable Tenant to obtain a  certificate of occupancy for the Leased Premises. Tenant agrees that Tenant's moving into the  Leased Premises shall be undertaken and conducted in accordance with the rules and regulations  promulgated by Landlord with respect to the Building.  B. Services During Tenant s Additional Work. Landlord shall furnish water,  electricity, elevator service, loading dock and HVAC service to the Leased Premises during the  93  EXECUTION VERSION  performance of any of the Tenant's Additional Work at no cost to Tenant, except as otherwise  provided in the Lease.  C. Balance of Tenant Improvement Allowance. If less than all of the Tenant  Improvement Allowance is applied to the Tenant Improvement Costs, then any remaining balance  of the Tenant Improvement Allowance may be applied to the costs of the Tenant's Additional  Work, as expressly allowed in Paragraph 5(A) of this Exhibit F.  9. Landlord s Consent. Any approval by Landlord of or consent by Landlord to any  plans, specifications or other items to be submitted by Tenant to and/or reviewed by Landlord  pursuant to this Exhibit F or the Lease shall be deemed to be strictly limited to an acknowledgment  of approval thereof or consent thereto by Landlord, and whether such work is coordinated by  Landlord or performed by Tenant, Tenant's Contractor or its subcontractors, such approval or  consent shall not constitute an assumption by Landlord of any responsibility for the accuracy,  sufficiency or feasibility of any plans, specifications or other such items and shall not imply any  representation, acknowledgment or warranty by Landlord that the design is safe, feasible or  structurally sound or will comply with any Legal Requirements. Any deficiency in design,  although the same had prior approval of Landlord, shall be solely the responsibility of Tenant, and  any deficiency in any construction by Tenant, Tenant's Contractor or its subcontractors shall be  solely the responsibility of Tenant.  10. Project Representatives. To facilitate effective and timely input, direction and  communication to and from Tenant, Tenant and Landlord shall each designate one or more project  representatives who shall have the responsibility and authority to act on behalf of Tenant and  Landlord, respectively. Landlord's initial designated project representative shall be Nick Foster  or, if Nick Foster is unable or fails to serve, another individual reasonably appointed by Landlord.  Tenant's initial designated project representative shall be appointed and communicated in writing  to Landlord at the time that Tenant delivers Tenant's proposed final working drawings and  specifications for the Tenant Improvements, pursuant to Section 3 of this Work Letter. Either party  may change such party's designated project representative at any time and from time to time by  notice to the other party. Each party shall fully cooperate with the other's designated project  representative in connection with the performance of the Tenant Improvement Work, which  cooperation shall include, without limitation, the following: (i) allowing Landlord's designated  project representative to have access to the Leased Premises in order to inspect and monitor the  progress of the Tenant Improvement Work; (ii) permitting Landlord' s designated project  representative to participate in construction meetings with or among any contractor, subcontractor  and/or supplier providing or performing any services, materials, tools or equipment in connection  with the performance of the Tenant Improvement Work, including Tenant's Architect and Tenant's  Contractor; and (iii) furnishing Landlord's designated project representative with such documents  and instruments as may be reasonably requested in order to monitor the progress of the Tenant  Improvement Work and the payment of the Tenant Improvement Costs. Notwithstanding anything  in the Lease or this Exhibit F to the contrary, Landlord shall have no duty or obligation to Tenant  to inspect the Tenant Improvements, to monitor the progress of the performance of the Tenant  Improvement Work or to monitor the progress of the payment of the Tenant Improvement Costs  in relation to the progress of the performance of the Tenant Improvement Work.  94  EXECUTION VERSION  11. Condition; Landlord s Representations and Wananty. Subject to the terms and  conditions of this Lease (including this Work Letter), Landlord shall cause the General Contractor  constructing the Base Building and other components of the Project to perform such duties and  obligations in accordance with the skill, care and diligence of a contractor experienced in  constructing comparable "first class" office towers. Landlord hereby represents and warrants to  Tenant, which representations and warranty shall survive for the Warranty Period as defined  below, that as of substantial completion of the Base Building (i) the materials and equipment  furnished by Landlord's contractors in the prosecution of the Base Building improvements will be  of good and workmanlike quality and new, (ii) the Base Building improvements will be  constructed in a good and workmanlike manner, (iii) the construction as part of Base Building  improvements will be constructed in accordance with applicable law then in effect, but otherwise  excepting Tenant's particular use of the Leased Premises, (iv) the Leased Premises shall be  delivered to Tenant free of all mechanic's, materialmen's, and contractor's liens resulting from  Landlord's construction of the Base Building or any subsequent work performed by or on behalf  of Landlord pursuant to Landlord's Warranty; provided, that Landlord may satisfy this requirement  by promptly bonding off any such liens; and (v) the Leased Premises (including all improvements)  shall be delivered to Tenant free of any Hazardous Materials brought upon the Leased Premises or  caused by Landlord or its agents (collectively, "Landlord s Warranty"). Landlord's Warranty shall  exclude damages or defects caused by (i) Tenant and Tenant's guests, licensees or invitees, and  (ii) improper or insufficient maintenance or improper operations. The "Warranty Period" shall  commence on the Commencement Date and expire on the date which is the first (1st) anniversary  of the Commencement Date, provided however, that with respect to latent defects, the Landlord's  Warranty shall remain in effect as to any such latent defect, so long as the latent defect is reported  by Tenant with reasonable promptness after it is discovered by Tenant and so long as Tenant shall  not have exacerbated such condition after having discovered such latent defect. As applicable,  Landlord shall cause the correction of any item occasioned by a breach of the foregoing Landlord  Warranty reported by Tenant to Landlord in writing prior to the expiration of the Warranty Period  and, as applicable, Landlord shall cause such correction to be commenced within thirty (30) days  after such written notice from Tenant and shall diligently pursue the correction of same. Tenant  shall have no other remedy against Landlord with respect to such matters. Tenant must make  claims under the Landlord's Warranty by delivering written notice to Landlord on or before the  expiration of the Warranty Period. Tenant's making of a claim under the Landlord's Warranty  with specificity will toll the running of the Warranty Period with respect to the item that is the  subject of that claim and Landlord's Warranty will remain in effect as to that item until, as  applicable, Landlord causes the correction of such item even though the Warranty Period would  otherwise have expired. Unless otherwise expressly expanded under the terms of this Lease  (including damages which may be due to delay in delivery of the Leased Premises to Tenant),  Tenant's recourse with respect to any failure by Landlord to have fulfilled its design and  construction obligations under this Lease shall be limited to its remedies set forth in this subsection.  In addition to the foregoing, Landlord agrees to fully cooperate with Tenant in the exercise of  Landlord's rights under any warranties obtained with respect to the portions of the Base Building  improvements within the Leased Premises required to be maintained or repaired by Tenant  pursuant to this Lease ("Assignable Warranties") as a result of any defects in workmanship or  materials.  12. Material Changes to Base Building Condition and Building Standard. Subject to  the provisions of the paragraph immediately preceding Section 1 of this Exhibit F, Landlord shall  95  EXECUTION VERSION  make no material changes or modifications to the Base Building Condition or Building Standard  Improvements that affect the Leased Premises, General Common Areas, or Common Areas  reasonably anticipated to be routinely used by Tenant.  96  EXECUTION VERSION  





 






EXHIBIT F-1  BASE BUILDING CONDITIONS - OFFICE TOWER  The following is a description of the conditions to be satisfied with respect to the Office Building  and the Premises. Unless stated as the responsibility of the Tenant, all delivery conditions  defined below are to be provided by the Landlord.  1. GENERAL QUALITY STANDARDS  a. Code Compliance - The Office Building design will adhere to all applicable  building codes.  b. LEED Certification - The Office Building will be USGBC "Certified or Better" rating  for core and shell.  c. Building Commissioning - The Office Building shall be commissioned m  accordance with the USG BC Commissioning Plan and Guide Specifications.  d. Energy Efficiency - The Office Building shall comply with state and local energy  codes or ASHRAE 90.1-2010, and shall comply with the Department of Energy's  International Performance Measurement and Verification Protocol (IPMVP) for  energy consumption. The Office Building shall meet ASHRAE/IES Standard 90.1  - 2010 and subsequent revisions adopted prior to the date design begins.  e. Indoor Air Quality - The Office Building shall comply with ASHRAE Standard 62- 2013 with the provision that the ambient air quality standard requirements shall be  site specific and not region specific (i.e., ambient air quality at the proposed point  of fresh air intake) and the Office Building fresh airintake shall be located away from  loading areas, building exhaust fans, cooling towers and other point sources of  contamination.  f. Ozone Depletion I CFC - CFC refrigerant systems will not be permitted in the  Office Project.  g. Storage and Collection of Recyclables - The Office Project shall include a  centralized ground-floor location for collection and storage of materials separated  fromeachotherfor recycling in accordance with cost-effective services provided  by local vendors commonplace in the market.  97  EXECUTION VERSION  h. Thermal Comfort - The Office Building design shall comply with ASHRAE Standard  55- 2013.  2. ARCHITECTURAL  a. The Office Building envelop is composed of a high-performance glass and aluminum  curtainwall and window system, with composite metal panels, architectural cast stone and  natural stone accents, and masonry. The curtainwall and window wall framing system will  include some custom extrusions, which will provide solar shading and vertical articulation to the  wall.  b. The aluminum framing systems will be thermally improved for energy efficiency  c. The vision glass will be high performance 1" insulated units with a low E coating  such as Guardian SNR43 or similar. The spandrel glass will be complimentary in  color rendition and insulated with semi-rigid insulation to achieve an R-15 thermal  rating.  d. The building floor to floor, ceiling and sill heights are as follows:  L Floor 2 is 18' floor to floor providing 14' -0" high ceiling. The 13 '-6" tall  full height vision glass sits above a raised sill and extends to the ceiling.  11. Floors 3-21 are 14' floor to floor, providing for 10' high suspended ceilings  with full height vision glass. The window wall at the 20th floor balcony is  floor to ceiling.  e. The tenant's ceiling system (i.e. ceiling grid, tile, etc.) will be furnished by the  tenant as a part of the Tenant' Work.  f. The typical window module is 5'-0" on center.  g. The window treatments provided by the Tenant at Tenant's cost will be full height,  building standard color mecho-shades with manufacturer's standard manual lifting  mechanism mounted between vertical mullions.  3. INTERIOR PUBLIC AREAS AND CORE SERVICES  a. Typical base building core conditions are as follows:  L Typical elevator lobbies will have exposed concrete floors and structure  98  EXECUTION VERSION  above with gypsum board partitions taped, floated and sanded ready to  receive tenant's finishes. Elevator doors and frames will be painted the  base building color.  11. Building standard core walls are to be constructed floor to underside of structure  above. Gypsum board is taped, floated and sanded.  111. Base building core doors shall be 3 '-0" x 9'-0" x 1 -3/4" thick solid core  wood stained wood to building standard color.  1v. Perimeter sill walls will have metal studs and insulation in place, ready  for gypsum board installation as a part of Tenant's Work.  v. Gypsum board cladding at all free standing and perimeter columns shall be  installed as a part of Tenant's Work.  vi. On Multi-Tenant Floors, the common corridor wall studs and corridor side  gypsum board will be installed, taped, floated and painted subject to  modification based on tenants approved plans at Landlord's expense. Any  demising walls separating Tenant's premises from any adjacent space will  be finished floor to underside of structure with sound insulation and one  side gypsum board aa a part of Tenant's Work.  b. Restrooms: The restrooms will feature private gypsum board toilet stalls with  stained or painted louvered doors. Vanities will be quartz with separate mirrors at  each basin. The space will be finished with ceramic tile floors, ceramic tile wet  walls and vinyl or paint on the others. Toilet accessories will be brushed stainless  steel, recessed and semi-recessed. The ceilings will be painted gypsum board.  Lighting will be accomplished with LED decorative wall and ceiling downlights. Men  and women' s restrooms will be provided on each floor based on the code required  minimums.  c. Exit Stairs:  i. Tenants shall have the right to use the fire stairs connecting the floors of the  Premises as convenience stairs.  11. Tenants shall have the right to improve the lighting, install code compliant  carpet and install an internal card key system as part of this right and shall  tie such system into the Tenant's card key system.  4. ELEVATORS  a. Elevator Access  EXECUTION VERSION  i. Landlord shall operate all elevators within the elevator banks servicing the  Tenants' floors at all times during Building hours, and at all other times, at  least 2 passenger elevators in each elevator bank shall be subject to call.  11. Tenants shall have the use of the freight elevators during regular hours and  for an agreed upon number of overtime hours free of charge.  99  b. Schedule of Elevators:  L Five High-Rise passenger elevators at 3500 lb. capacity and 700 FPM serve  the Lobby and Floors 11 -21.  11. Five Low-Rise passenger elevators at 3500 lb. capacity and 500 FPM serve  the Lobby and floors 2-10  m. One 5000lbs Freight elevators connecting all office floors, the service level  and parking level 2.  iv. Passenger elevator cab ceiling height is 9'-0", freight elevators 10'-0" with  a dog house and shuttle elevators 7'-4".  5. STRUCTURAL - OFFICE BUILDING  a. The floors will be designed to accommodate an 80 lb. live load  b. Floor levelness: Finish concrete slabs to flatness and levelness tolerances which  correspond to FF 25/FL 20 minimum overall for composite of all measured values  per placement and FF 17 /FL 15 minimum for any individual floor section. While  no direct equivalence between F-numbers and straightedge tolerances exists, the  specified Overall FF 25 is roughly equivalent to a single defect of 1/4" in 10 feet,  while the Minimum Local FF 17 is roughly equivalent to a single defect of 9/32"  in 10 feet. Notwithstanding this Building standard, many interior finish systems  (such as glass office fronts) require some amount of floor leveling and any cost of  such floor leveling will be the responsibility of Tenant.  6. MECHANICAL  a. HV AC Systems:  EXECUTION VERSION  i. The refrigeration system will consist of two parallel connected electrically  driven hermetic centrifugal water chillers (refer to capacities noted below)  and associated chilled water pumps, condenser water pumps, plate & frame  heat exchanger (for ground floor retail condenser water), associated controls  and two cell induced draft cooling tower. Space for the ground floor  condenser water heat exchanger and associated pumps will be provided in  central plant design. Condenser water risers with: 2 valved taps for tenant  use; and two branch connections with valves and dedicated in-line pumps  for each handling unit's precooling/economizer coil will be provided in  each office building fan room. Cooling tower and condenser water risers  will be sized to accommodate the 24hour loads, special equipment space  100  





 






EXECUTION VERSION  loads, ground floor special tenant loads, retail loads, fitness center loads,  elevator equipment room loads, and general office tenant loads of 2  watts/sq. ft. Chiller capacity: Building will be provided with two chillers @  625 tons each with leaving water temperature of 42 degrees F. The water  chillers will have a minimum efficiency of 0.58 kW/ton at full load using  R-123 or R-134a refrigerant. Cooling tower capacity will be: 3100 gpm  (total for 2 cells); lQOA/8Y'@ 78/\ambient wet bulb.  ii. Chilled water supply temperature will be 42°F with a range of 12° to 16°F  on the return. At the Owner's option, the chillers will be factory tested and  certified for part load and full load operation in accordance with American  Refrigerant Institute Standards (ARI 550-88). Units will be selected based  on a waterside fouling factor of 0.0001 in the evaporator and 0.00025 in the  condenser. The starters for each chiller will be unit mounted, provided by  the chiller manufacturer.  m. Chilled water will be supplied to air handling units (one per floor) from the  central refrigeration plant. Air handling units will be of the packaged draw  central station type. O.A. will be ducted to each fan room through medium  pressure main riser and constant volume air valves from a variable speed  drive outside air fan (approx.65,000 cfm) located on the roof.  1v. Conditioned air (at 49 degrees db leaving the cooling coil) is supplied to  each floor from the air handling units through a medium pressure, medium  velocity air distribution system to pressure independent series type fan  powered induction units located throughout the floors and/or provided  during tenant fit-up. Conditioned air will be supplied to the occupied space  at a minimum of 55 degrees db from the fan powered induction units. As  a result of the inherent flexibility of the variable volume system, additional  zones can be added as required to meet the occupant's needs.  v. The heating requirements for the building will be handled by electric  resistance heating coils located integral to the powered induction units  located in the ceiling return air plenum in the vicinity of the various zones.  Powered induction unit fans take air from the ceiling plenum and distribute  air to the occupied space through a duct system. Perimeter heating coils are  controlled in sequence with its respective powered induction unit's primary  air valve thereby eliminating the need for "reheat".  vi. Ground floor tenants, Lobby, Deli, Retail tenants, Fitness Center and back  of the house areas will be conditioned by dedicated variable volume and/or  constant volume water cooled self-contained air conditioning units and  associated ductwork and variable volume units. Unit serving main Lobby  and associated air distribution system will be provided as part of shell and  core scope. Water cooled units serving tenant areas will be tenant furnished.  101  Special equipment spaces will be conditioned by dedicated constant volume  water cooled self-contained units with integral heat and low pressure duct  systems. Outside air quantities to the units serving entrance areas will in  sufficient quantity to offset infiltration into the building. An outside air loop  duct with air valves from the main outside air riser will be provided to the  various tenant furnished water cooled A.C. units. A condenser water piping  loop with valve taps from the main condenser water risers will be provided  for tenant for various tenant furnished water cooled A.C. units.  VIL Telephone, electrical switchgear, and elevator equipment rooms will be  conditioned by dedicated water cooled self-contained air handling units or  DX split systems.  vm. Toilet room exhaust will be ducted to two exhaust risers up to constant  speed fans (approx. 8000 cfm each) located on the roof.  1x. An exhaust riser for tenant use/ building pressurization control will be  provided and include a dedicated variable flow fan (approximately 42000  cfm) located on the roof.  x. Stair shafts will be provided with pressurization systems as required by  Code using centrifugal fans with variable speed drives.  7. ELECTRICAL  a. Power Distribution  EXECUTION VERSION  L The entire electrical distribution system shall comply with local codes and  the National Electrical Code as well as any additional applicable code  authorities.  11. Electrical service to the typical floors will be served from 480Y /277 volt  building plug-in buss risers. These bus risers will be sized to provide 7.0  watts per usable square foot of electrical connected load capacity for tenant  use above and beyond the base building electrical requirements.  1. Tenant's supplemental equipment (24/7 operations, HVAC  equipment, etc.) shall be sub-metered.  2. Meters shall be of the digital networked type, with intelligent meter  hubs with CT's and transponders, as manufactured by E-mon or  equal, interfaced with the base building metering system, all  provided by the Tenant.  m. A 480Y /277 volt lighting panel will be provided at each floor with 2 watts  per usable square foot capacity of lighting loads for tenant use above and  beyond base building electrical requirements (this capacity is part of the  102  above described 7.0 watts per usable sq. ft. provided for tenant use at  480Y/277 volts).  1. Tenant lighting shall be designed to be 10% less than the ASHRAE  90.1-2010 allowance of 0.9 w/sf.  2. An emergency circuit per floor will be provided to each tenant  space for egress and exit lighting. Such egress and exit lighting  shall not exceed 0.1 watts per square foot.  1v. Dry-type transformers will be provided at each floor which will serve two  (2) 84-pole 208Y/120 volt panelboards for tenant receptacle and  equipment loads. Transformers, and panelboards will be sized for 5.0  watts per usable square foot capacity for tenant use (this capacity is part of  the above described 7.0 watts per usable square foot provided for tenant  use at 480Y/277 volts).  1. The two 84 pole panels will include through-feed lugs. These lugs  would serve additional 84 pole panels where a tenant exceeds the  quantity of breakers provided in base building, but not the 5 watts  per useable square foot power allowance. "Load center" type  panelboards or panelboards less than 84 poles would not be  acceptable products for use in the project. Additional tenant  panelboards can be installed on a space available bases in the core  electrical room, or if no space is available, in an ancillary room  constructed by the tenant within their space.  2. Additional 84 pole panelboards and all on floor distribution shall  be a part of the Tenant's Work.  b. Lighting Systems:  i. Lighting for tenant areas shall be a part ofTenant' s Work. The design of  the Tenant's lighting system shall achieve a typical "color temperature"  value of 3500° Kor less.  1. Tenant lighting shall be designed to be 10% less than the ASHRAE  90.1-2010 allowance of0.9 w/sf.  c. Telecommunications:  EXECUTION VERSION  L A main telephone point of presence (MPOP) room will be located near the point  of service to the Office Building. Space for "punch-down" blocks  103  (terminations) will be provided in a telephone closet at each typical floor  level. A second stacked riser closet with floor sleeves will be provided at  each typical floor level for a second route back to the MPOP if desired by  tenants. All individual tenant telephone switches and equipment shall be  located within the tenant spaces.  d. Stairwell Entrances: The base building stairwell doors are equipped with fail safe  electric locks that require Tenant (single tenant floors) install a power supply and  card readers to secure the tenant space.  8. PLUMBING  a. Two wet stacks with a capped 4" waste and a 4" vent pipe are provided on each  floor adjacent to the each end of the core. A 2" valved and capped cold water pipe  at 3 5 psi pressure will be provided at each floor for future tenant fixtures located  at the core.  b. The use of Pro-press fittings is not permitted on any piping systems - domestic or  HVAC as part of the Tenant Improvements.  9. FIRE SUPPRESSION  a. Branch sprinkler piping will be located near structural slab or deck. Design to be  based on NFP A 13 and local code requirements.  b. Sprinkler heads will be turned up in the ceiling plenum area in unfinished tenant  spaces in accordance with the authority having jurisdiction. All required drops  and/or relocation of heads to the ceiling will be done as part of Tenant's Work.  10. FIRE ALARM SYSTEM:  a. A complete code-complying fully addressable fire alarm system will be provided for  the base building.  EXECUTION VERSION  1. Speakers and visual strobes (ADA compliant) will be provided as necessary  for base building.  11. Smoke detectors will be provided as necessary for the base building.  111. Additional devices installed in the tenant space required for code  compliance shall be furnished as part of Tenant's Work. Where these tenant  devices exceed the spare capacity of the base building, the Tenant's Work  104  





 






shall include all fire alarm system modifications and additional amplifiers  and power supplies necessary.  11. BUILDING MANAGEMENT AND CONTROL SYSTEM  a. The Building Management and Control System shall be full electronic based direct  digital control microprocessor based system. The Building Management and Control  System shall monitor and control all Mechanical, Electrical and Plumbing systems  within the Office Building. The BMCS shall meet the following general criteria:  i. Microprocessor based.  11. Fully networked.  111. Real time.  1v. Distributed processing.  v. XML Web based operator interface.  12. BUILDING SECURITY SYSTEM:  a. Landlord, at Landlord's sole cost and expense, shall provide on a 2417 Building  security, which includes on-site security personnel, cardkey access, closed circuit  television and other state-of-the-art devices. Monday through Friday, exterior  doors unlock at 0700 and lock for card access at 1900. Saturday, exterior doors  unlock at 0700 and lock for card access at 1300. Sunday, exterior doors are locked  for card access 2417.  b. The property uses a CCTV system comprising of a combination of black and white  and color cameras that monitor key building entrances, exits, and areas. Electronic  controls allow security personnel to view different camera images. Images are  recorded using a digital video recorder and are stored electronically in the event an  image needs to be reviewed.  c. All stairwell doors leading to Tenant spaces are provided with electric locks  suitable for installation of card readers to be provided by the Tenant.  d. A card access system will be provided at public entry points. Security with the  Tenant's premise shall be by the Tenant and shall not be tied into the Building's  security system.  105  EXECUTION VERSION  e. A closed circuit TV monitoring system will be provided at public entry points and  loading dock.  13. BUILDING SERVICES/ ACCESS  a. Landlord provides seven (7) days per week, twenty-four (24) hours per day,  building access and services. Building recognized holidays: New Year's Day,  Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas  Day.  b. Landlord shall maintain the building and provide all of services normally  associated with a first-class office building including, but not limited to, heating  and air conditioning, fuel delivery and elevator service, security, repairs and  maintenance, directory service, cleaning, etc.  14. CHANGES: Landlord reserves the right to modify the Base Building Outline Specifications  without Tenant's consent so long as such changes do not materially affect Tenant's use and  design of the Premises.  106  EXECUTION VERSION  EXHIBITG  Janitorial Services  1) OFFICE AREAS (All Floors)  Nightly Services (Five (5) nights per week)  (a) Empty all waste receptacles. Clean and reline when needed. Remove material  to designated areas.  (b) Remove recycling material when container is full (see weekly).  ( c) Vacuum all carpeted main traffic and use areas, including conference rooms,  reception areas, interior stairwells, hallways and corridors with the exception of  individual offices (see weekly). Spot vacuum/clean all other areas as needed.  (d) Wash and sanitize all drinking fountains.  ( e) Damp mop spillage in uncarpeted office areas.  (f) Assure all designated locked doors are closed after area has been cleaned.  (g) Activate all alarm systems as instructed by occupant (if applicable).  (h) Arrange chairs at desk and conference room tables and turn off lights upon  exiting.  (i) Clean conference room tables and remove any remaining food items.  G) Clean and sweep all lunchroom/eating areas. Wash and wipe tables and counter  tops and clean sinks.  Weekly Services  (a) Remove recycling material when container is full.  (b) Vacuum all carpeted areas completely, private offices and cubicle interiors,  desk knee area spaces and under waste containers.  ( c) Dust and wipe clean with damp or treated cloth all office furniture, files and  cubicle partition tops (DO NOT MOVE PAPERS).  ( d) Remove all finger marks and smudges from all vertical surfaces, including  doors, doorframes, around light switches, private entrance glass, and partitions.  107  EXECUTION VERSION  (e) Damp wipe and polish all glass furniture tops. (Conference room tables and  task tables only, excluding individual office desks which will be a periodic  service.)  (f) Damp mop hard surfaced floors and/or uncarpeted surface floors.  (g) Sweep uncarpeted floors employing dust control techniques with exception of  lunchroom (which is to be performed nightly).  (h) Remove scuffmarks on floor as needed.  Monthly Services  (a) Dust and wipe clean chair bases and arms, telephones, cubicle shelves, windowsills  and all other horizontal surfaces as needed to maintain clean appearance (DO NOT  MOVE PAPERS).  (b) Edge vacuum all carpeted areas, as needed.  ( c) Spot clean carpets to remove light spillage. Report large spills and stains to  supervisor.  2) RESTROOMS  Nightly service (Five (5) nights per week)  (a) Clean and sanitize all mirrors, brightwork, countertops and enameled surfaces.  (b) Wash and disinfect all basins, urinals, bowls (cleaning underside of rim) and  fixtures using scouring powder to remove stains.  (c) Wash both sides of all toilet seats with soap and/or disinfectant.  ( d) Clean flushometers, piping, toilet seat hinges, and other metal.  ( e) Empty, clean, and damp wipe all waste receptacles.  (f) Sweep, wet mop, and sanitize entire floor, including around toilet seats and  under urinals.  (g) Damp wipe all walls, partitions, doors, and outside surfaces of all dispensers,  as needed. Fill toilet paper, soap, towels, and sanitary napkin dispensers (if  applicable).  (h) Wash and disinfect all showers including shower walls, floors, brightwork and  doors (if applicable).  (i) Replace trash liner.  Weekly Services  (a) Flush water through P-trap weekly to ensure elimination of odor.  Monthly Services  (a) Machine scrub floors. (Does not include polishing or honing any floors.)  3) LOBBY, ELEVATOR, CORRIDOR, INTERIOR STAIRWAYS (EXCLUDING  EMERGENCY EXIT STAIRWAYS AND ENTRANCE AREAS)  108  EXECUTION VERSION  





 






Nightly Service (Five (5) nights per week)  (a) Sweep and spot mop all stone, vinyl or composition lobby floors.  (b) Vacuum all carpeted floor and mats.  ( c) Dust and polish all brightwork, including mirrors and elevator call buttons.  (d) Dust and polish all metal surfaces in elevators, including tracks (as needed),  and elevator doors.  ( e) Vacuum all carpet in elevators.  (f) Clean and polish all trash receptacles.  (g) Dust all fire extinguisher cabinets and/or units.  (h) Spot sweep and/or spot vacuum all interior stairways (excluding emergency exit  stairways and landings (if applicable).  (i) Maintain lobby floor as recommended by manufacturer.  G) All furniture should be cleaned as necessary (including directories).  (k) Wash, disinfect and dry polish water coolers (if applicable).  (1) Clean glass entrance doors, adjacent glass panels and tracks (i.e. side lights, if  applicable).  Weekly Services  (a) Wet mop all stone, vinyl or composition lobby floors (daily spot mopping may  satisfy this need).  (b) Sweep and/or vacuum all interior stairways (excluding emergency exit  stairways) and landings (if applicable).  ( c) Spot clean carpeted floors and mats.  ( d) Spot clean carpet in elevators.  (e) Spot clean all doors.  4) JANITORIAL ITEMS/AREAS  Nightly Services (Five (5) nights per week)  (a) Keep janitorial rooms in a clean, neat and orderly condition.  (b) Maintain all janitorial carts and equipment in safe and clean condition.  5) FITNESS CENTER  Nightly Services  (a) Vacuum all exposed carpeted floors.  (b) Spot clean all mirrors and walls.  ( c) Spray and disinfect fitness center equipment nightly.  ( d) Empty trash receptacles.  109  EXECUTION VERSION  Weekly Services  (a) Edge vacuum all carpeted areas, as needed.  (b) Dust all ledges, as needed.  ( c) Clean mirrors completely.  ( d) Stock supplies and towels.  6) LOCKER ROOMS (if applicable)  Nightly Services (Five (5) nights per week)  (a) Perform complete Building restroom cleaning specifications to restroom and  locker room areas.  (b) Clean and disinfect showers completely, including walls, doors, floors, and  floor drains.  7) LOADING DOCK, VAN PARKING AREAS, TRASH RECYCLING AREAS  Nightly Services (Five (5) Nights per week)  (a) Empty and reline all waste receptacles.  (b) Sweep ramps, loading bays and parking areas for trash and cigarette butts  ( onsite maintenance staff will take care of this first thing in the morning during  "Building rounds.").  8) GENERAL BUILDING COMMON AREA SERVICES  Nightly Services (Five (5) nights per week)  (a) Spot clean and restock, as needed, all janitorial service closets.  (b) Pick up and compact all recycle trash; including boxes in accordance with  tenants recycle specifications, as a work order through maintenance staff, the  cost of which will be billed back to Tenant.  ( c) Vacuum all garage lobbies and elevator carpets.  110  EXECUTION VERSION