LEASE AGREEMENT DATED SEPTEMBER __, 1997
BETWEEN WIZCOM INTERNATIONAL, LTD., a Delaware corporation, having an
office at 0 Xxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Landlord"), and AVIS
RENT A CAR SYSTEM, INC., a Delaware corporation ("Tenant"), having an address
at 000 Xxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxx 00000.
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS.
In addition to other terms elsewhere defined in this Lease, the following
terms whenever used in this Lease should have only the meanings set forth in
this Preamble, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
I. Demised Premises: The Demised Premises are as depicted by
cross-hatching on the floor plans annexed hereto and made a part hereof as
Exhibit "A", consisting of approximately _________ (______) square feet of
rentable area of office space located in that certain office building
containing approximately one hundred fifty seven thousand five hundred eighty
four (157,584) square feet of rentable area (the "Building") situated on the
Land (as defined in Paragraph l(a) of this Lease) at the location commonly
identified as 000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxxxx, as shown on the
site plan attached hereto as Exhibit "B". Landlord and Tenant agree that Tenant
may from time to time effect changes to the size and location of the Demised
Premises subject to the following conditions and procedures: (i) Tenant may not
increase or decrease the Demised Premises by more than an aggregate of ten
percent (10%) of the existing square footage of the Demised Premises, (ii)
Tenant shall provide Landlord with not less than ten (10) days prior written
notice of its intent to change the Demised Premises, which notice shall specify
the location, size and (in the case of adding new space) the proposed use of
the space, and the date on which such change shall be effective, (iii) Landlord
may in its sole discretion reject a proposed change within ten (10) days of its
receipt, and (iv) no portion of the Building shall be eligible for addition to
the Demised Premises under this provision unless such space is (x) unoccupied
and not subject to any existing lease by Landlord, and (y) adjacent to the
existing Demised Premises. Except as expressly set forth herein-above, no
change in the actual occupancy or use of portions of the Building or the Land
by Tenant shall effect a change in the Demised Premises or in the number or
location of the parking spaces in the Parking Area designated for Tenant's
exclusive use hereunder, unless the parties execute an appropriate amendment to
this Lease within twelve (12) months after such change in occupancy or use.
II. Term: Eighteen (18) years.
III. Expiration Date: Upon the earlier to occur of (i) midnight on the
last day of the calendar month occurring eighteen (18) years after the
Commencement Date or (ii) the termination of the Master License Agreement dated
as of July 30, 1997 among HFS Car Rental, Inc., Tenant and Wizard Co., Inc.
IV. Permitted Use: General office use and such other uses as would be
customarily ancillary to a general office use in an office building as
permitted by law and for no other purpose.
V. Base Rent: _______ Dollars ($____) per month from the Commencement Date
through the last day of the calendar month during which the sixth (6th)
anniversary of the Commencement Date occurs; and _____ Dollars ($____) per
month from the first day of the calendar month following the sixth (6th)
anniversary of the Commencement Date through the last day of the calendar month
in
which occurs the twelfth (12th) anniversary of the Commencement Date; and
______ Dollars ($______) per month from the first day of the calendar month
following the twelfth (l2th) anniversary of the Commencement Date through the
Expiration Date.
VI. Late Charge: Four percent (4%) of the amount of the payment due.
VII. Tenant's Proportionate Share: Shall consist of each of the following:
(i) the square footage of the Demised Premises plus fifty percent (50%) of the
total Common Areas and unoccupied space in the Building, expressed as a
percentage of the sum of the total square footage of the Building, and (ii) the
number of parking spaces designated for Tenant's exclusive use plus the product
of the Tenant's Proportionate Share under clause (i) above and the total number
of non-exclusive parking spaces in the Parking Area expressed as a percentage
of the total number of parking spaces in the Parking Area. The Tenant's
Proportionate Share under clause (ii) above shall apply only with respect to
the portion of Operating Expenses which are separately identified in the
Expense Projection (defined herein), or if not projected, at the time of review
by the Committee (defined herein), as relating to the maintenance and operation
of the Parking Area.
VIII. Parking Area: All of the improved parking spaces on the Land,
comprising approximately 820 parking spaces.
IX. Prime Rate: The prime commercial lending rate on ninety (90) day loans
announced by Citibank, N.A., or its successor.
X. Building Holidays: Building Holidays shall be: Memorial Day;
Independence Day; Labor Day; Thanksgiving Day and the day after; Christmas Day
and New Year's Day; the Monday before or the Friday after if Christmas Day or
Independence Day fall on Tuesday or Thursday; and the Monday after or the
Friday before if Christmas Day or Independence Day fall on Saturday or Sunday.
The parties hereby agree to the following terms and conditions: 1. Demised
Premises, Term and Purposes.
(a) Landlord does hereby lease to Tenant, and Tenant does hereby lease
from Landlord, the Demised Premises located in the Building, together with all
other Common Areas, as defined in Paragraph l(d), for the Term commencing on
the Commencement Date, as defined in subparagraph (b) of this Paragraph 1, and
ending on the Expiration Date, or such earlier date upon which the Term may
expire, or be terminated pursuant to the provisions of this Lease or pursuant
to law. The parcel of land on which the Building is located (hereinafter called
the "Land") being the same land conveyed by Tenant to Landlord by Deed dated
October 15, 1996 and recorded with the clerk of the Virginia Beach Circuit
Court on October 21, 1996.
(b) For purposes of this Lease the "Commencement Date" shall be
September __, 1997, subject to the provisions of Paragraph 3(b).
(c) The Demised Premises shall be used by Tenant for the Permitted Use
and for no other use or purpose. Tenant shall not use or occupy the Demised
Premises or any part thereof for any purpose deemed unlawful, disreputable, or
extra-hazardous on account of fire or other casualty, or for any purposes which
shall impair the character of the Building. Tenant, at its sole cost and
expense shall obtain any consents, licenses, permits or approvals required or
obtainable in normal course to conduct its business at the Demised Premises.
Tenant shall have access to
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the Demised Premises twenty-four (24) hours a day, seven (7) days a week.
(d) The "Common Areas" shall be those parts of the Building and other
improvements designated by Landlord for the common use of both Landlord and
Tenant, including among others, halls, lobbies, delivery passages, drinking
fountains, public toilets, cafeterias, vending areas, parking facilities, and
the like, or similar improvements operated, owned by Landlord with respect to
the Building. The Common Areas shall be operated and maintained by Landlord for
the benefit of Landlord and Tenant in a first class manner. Tenant's use of the
Common Areas shall be in common with Landlord, and their respective visitors
and invitees. Landlord shall not diminish the Common Areas in any way that has
a materially adverse impact on Tenant's use or enjoyment of, access to, or
ability to conduct its business at the Demised Premises.
(e) For purposes of this Lease the term "Improvements" shall mean and
include all, whether existing now or in the future, buildings, including the
Building, and/or appurtenant structures or improvements of any kind on the
Land, whether above, on, or below the Land surface, including, without
limitation, outbuildings, loading areas, canopies, walls, waterlines, sewer,
electrical and gas distribution facilities, parking facilities, walkways,
streets, curbs, roads, rights of way, fences, xxxxxx, exterior plantings,
poles, and signs. For the purposes of this Lease the term "Property" shall mean
the Land together with the Improvements.
2. Rent.
(a) The rent reserved under this Lease for the Term hereof (the
"Rent") shall be and consist of: (i) the Base Rent payable in equal monthly
installments in advance, on the first day of each and every calendar month
during the Term; plus (ii) such additional rent ("Additional Rent") in an
amount equal to (x) Tenant's Proportionate Share of Expenses (as such terms are
defined in Paragraph 3 of this Lease) and all charges for services and
utilities pursuant to Paragraph 14 hereof, and (y) any other charges as shall
become due and payable hereunder, including, without limitation, the reasonable
expenses incurred by Landlord in the enforcement of any of the agreements,
covenants and obligations under this Lease, and including reasonable legal fees
that may accrue in the event suit for rent or dispossess proceedings are
necessary to obtain the possession of the Demised Premises or to collect the
Rent; which Additional Rent shall be payable as hereinafter provided. All Rent
shall be paid to Landlord at its office stated above, or such other place as
Landlord may designate by notice given in accordance with Paragraph 17 hereof,
in lawful money of the United States of America; provided, however, that if the
Commencement Date shall occur on a date other than the first calendar day of a
month, the Rent for the partial month commencing on the Commencement Date shall
be appropriately pro-rated on the basis of the monthly Rent payable during the
first year of the Term.
(b) Tenant does hereby covenant and agree promptly to pay the Base
Rent, Additional Rent and any other charges herein reserved as and when the same
shall become due and payable, without demand therefor and, except as otherwise
expressly provided herein, without any set-off, recoupment or deduction
whatsoever. All Additional Rent and other charges payable hereunder, which are
not due and payable on a monthly basis during the Term, unless otherwise
specified herein, shall be due and payable within twenty (20) days of delivery
by Landlord to Tenant of notice to pay the same.
(c) In the event that any payment of Base Rent, Additional Rent or any
other charges shall be paid after the due
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date for same provided herein, Tenant shall pay, together with payment, the
Late Charge and a like additional Late Charge for every thirty (30) days or
portion thereof that such payment shall remain unpaid.
3. Operating Expenses.
(a) For purposes of this paragraph, the following definitions shall
apply:
"Lease Year" shall mean the calendar year 1998 and each calendar
year subsequent thereto during the Term.
"Real Estate Taxes" shall mean all real property taxes and
assessments now or hereafter imposed upon the Building and the Land. Tenant's
share of the Real Estate Taxes shall be a fraction, the numerator of which
shall be the number of square feet of rentable area of the Demised Premises and
the denominator of which shall be the total number of square feet of rentable
area of the Building. Real Estate Taxes shall not include any inheritance,
estate, succession, transfer, gift, franchise, corporation, net income, rent or
profit tax that may be imposed upon Landlord; provided, however, that if, due
to a change in the method of taxation or assessment, any franchise, income,
profit or other tax, however designated, shall be substituted by the applicable
taxing authority, in whole or in part, for the Real Estate Taxes now or
hereafter imposed on the Land and the Improvements or any other real property
included in the Land, such franchise, income, profit or other tax shall be
deemed to be included in the term "Real Estate Taxes."
"Expenses" shall mean: (i) Real Estate Taxes and (ii) the total
of all the costs and expenses paid or incurred by Landlord, or by Tenant on
Landlord's behalf in accordance with the provisions hereof, with respect to the
management, operation, maintenance, and repair of the Land, the Building (which
includes the Demised Premises), including, but not limited to, the costs and
expenses incurred for and with respect to: all utilities, including without
limitation, water, electricity, gas, lighting, sewer and waste disposal; air
conditioning, ventilation and heating; lobby maintenance and cleaning;
maintenance of elevators; protection and security; lobby plantings and interior
landscape maintenance which are appropriate for the continued operation of the
Building; maintenance and painting of non-tenant areas; fire, all-risk, boiler
and machinery, sprinkler, apparatus, public liability and property damage, rent
and plate glass insurance; supplies; wages, salaries, disability benefits,
pensions, hospitalization, retirement plans, group insurance, workmen's
compensation insurance, payroll, social security, unemployment and other
similar taxes with respect to employees of Landlord; uniform and workers
clothes for such employees and the cleaning thereof and other similar employees
benefits and expenses imposed on Landlord pursuant to law or to any collective
bargaining agreement with respect to such employees but only to the extent and
in such proportion that the services of such employees are dedicated to the
operation of the Building, up to and including the Building manager; the cost
for a bookkeeper and for an accountant and any other professional and
consulting fees, including reasonable legal and auditing fees to the extent and
in such proportion that the services of such professional and consultants are
dedicated to the operation of the Building; association fees or dues; the
expenses, including reasonable payments to attorneys and appraisers incurred by
Landlord in connection with any application or proceeding wherein Landlord
obtains or seeks to obtain reduction or refund of the Real Estate Taxes payable
or paid; management fees of the Building; and any other expenses of any other
kind whatsoever reasonably incurred in managing, operating, maintaining and
repairing the Building, the Land and any other of the Improvements.
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Landlord agrees that with respect to all maintenance, repair,
replacement and improvement expenses referred to in the immediately preceding
paragraph involving contracts or individual expenditures exceeding Twenty-five
Thousand Dollars ($25,000.00), other than emergency repairs, Landlord shall
obtain at least two (2) competitive bids and shall utilize the lowest
responsible bidder for such work.
It is agreed, however, that the foregoing Expenses shall
exclude or have deducted from them:
i) expenditures for capital improvements, except those which
under generally accepted accounting principles consistently applied ("GAAP")
are expensed and except for capital expenses required by any law enacted after
the date of this Lease, in any of which cases the costs thereof shall be
included in Expenses for the calendar year in which the costs are incurred and
subsequent calendar years on a straight line basis amortized over an
appropriate period not exceeding ten (10) years with an interest factor equal
to the Prime Rate at the time of Landlord's having actually incurred said
expenditure, provided, however, that nothing herein shall relieve Tenant of the
responsibility for payments for capital improvements charged to Tenant pursuant
to Paragraph 6(b) hereof;
ii) as a deduction, amounts received by Landlord through
proceeds of insurance to the extent the proceeds are compensation for expenses
which were previously included as Expenses hereunder;
and
iii) without limitation of clause (ii), the cost of repairs or
replacements incurred by reasons of fire or other casualty or caused by the
exercise of the right of eminent domain or compensable to Landlord by virtue of
Landlord's insurance.
If Landlord and/or others shall purchase any item of capital
equipment or make any capital expenditures designed to result in savings or
reductions in Expenses, then the costs for same shall be included in Expenses,
but only to the extent of savings or reductions actually resulting therefrom as
reasonably estimated by Landlord's qualified professional consultant. The costs
of such capital equipment or capital expenditures are to be included in
Expenses for the calendar year in which the costs are incurred and subsequent
calendar years on a straight line basis amortized over such period of time as
reasonably can be estimated as the time in which such savings or reductions in
Expenses are expected to equal Landlord's costs for such capital equipment or
capital expenditure with an interest factor equal to the Prime Rate at the time
of Landlord's having actually incurred said costs. If Landlord and/or others
shall lease any such item of capital equipment designed to result in saving or
reductions in Expenses, then the rentals and other costs paid pursuant to such
leasing shall be included in Expense for the calendar year in which they were
incurred, but only to the extent of savings or reductions actually resulting
therefrom as reasonably estimated by Landlord's qualified professional
consultant.
(b) In the event (i) that the Commencement Date shall occur on
other than the first day of a calendar year, or (ii) that the Expiration Date
or other termination of this Lease shall be a day other than the last day of a
calendar year, or (iii) of any abatement of the Base Rent payable hereunder
pursuant to any provision of this Lease for any period of time not equal to a
full calendar year, or (iv) of any increase or decrease in the rentable area of
the Demised Premises or any increase in the rentable area of the Building, then
in each such event in applying the provisions of this Article 3 with respect to
such calendar year in which such events have occurred,
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appropriate adjustments shall be made to Tenant's Proportionate Share of
Expenses payable pursuant to Paragraph 3(c) so as to apportion such payment on
the basis of (i) the pro rata portion of the calendar year during which such
payment is to be made and/or (ii) the increase or decrease in Tenant's
Proportionate Share of Expenses by virtue of the changes in any such rentable
area.
(c) Tenant shall be responsible for and shall pay to Landlord in
accordance with this Paragraph 3 Tenant's Proportionate Share of Expenses paid
or incurred by Landlord in each Lease Year during the Term, as hereinafter
provided.
i) During each Lease Year Tenant shall pay to Landlord in monthly
installments, on the first day of each calendar month, as Additional Rent,
Tenant's Proportionate Share of Expenses to be paid by Landlord in such Lease
Year.
ii) By the first day of each October of the Term, Tenant shall
deliver to Landlord a proposed calculation of the square footage of the Common
Areas, unoccupied space and space occupied by Landlord and its tenants other
than Tenant in the Building, and the Demised Premises, and the number of
parking spaces in the Parking Area designated for exclusive use by any party
(which calculation shall note the date and extent of any changes in the
occupancy of such square footage and number of parking spaces designated for
exclusive use during the preceding twelve (12) month period), together with
copies of all service and maintenance contracts and records detailing Expenses
incurred during the previous twelve (12) month period, and such other
information as may be required by Landlord for the purpose of calculating
Tenant's Proportionate Share and preparing the projection of expenses for the
upcoming Lease Year (the "Expense Projection"). By the first day of each
November of the Term, Landlord shall deliver to Tenant the proposed Tenant's
Proportionate Share and Expense Projection, which shall include a calculation
of the square footage of the Demised Premises and the number of parking spaces
in the Parking Area designated for exclusive use by any party. The proposed
Expense Projection shall separately identify those Expenses which relate to the
operation and maintenance of the Parking Area. Tenant shall have ten (10) days
from delivery of the proposed Tenant's Proportionate Share and Expense
Projection to object to the calculation of the Tenant's Proportionate Share and
to any item(s) contained in the proposed Expense Projection. Landlord shall
have ten (10) days from delivery of Tenant's objections to accept or reject
such objections. If Landlord shall reject such objections, a committee (the
"Committee") comprised of one Landlord representative and one Tenant
representative shall meet and agree upon the Tenant's Proportionate Share and
the Expense Projection within ten (10) days of Landlord's rejection. If the
Committee is unable to resolve such issue within such time period, the matter
shall be submitted to the General Counsel of each of Landlord and Tenant as
provided in subparagraph (g) below. Tenant's Proportionate Share of such
estimated Expenses shall be paid in equal monthly installments (rounded to the
nearest whole dollar) in advance on the first day of each month by Tenant as
Additional Rent, commencing January 1st of the applicable Lease Year.
iii) If during the course of any Lease Year, Landlord shall have
reason to believe that the Expenses shall be higher than that upon which the
aforesaid Expense Projection was originally based, as set forth in subparagraph
(c)(ii) above, then the Committee shall be entitled to adjust the Expense
Projection by a lump sum invoice, accompanied by a lump sum statement in
reasonable detail, for the months of the Lease Year which precede the revised
Expense Projection and Tenant shall be bound by such readjusted Expense
Projection. The amount of such lump sum invoice shall be paid in full within
twenty (20) days of receipt.
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iv) On the last day of July and the last day of January of each
calendar year of the Term, the Committee shall send to Landlord and to Tenant a
statement of the actual Expenses incurred for the prior six (6) month period of
the Lease Year showing Tenant's Proportionate Share of the Expenses due from
Tenant. In the event that the amount prepaid by Tenant exceeds the amount that
was actually due based upon actual year end cost, the Landlord shall pay to
Tenant an amount equal to the over-charge. In the event that Landlord as
undercharged Tenant, then Landlord shall provide Tenant with an invoice stating
the additional amount due, which amount shall be paid in full by Tenant within
twenty (20) days of receipt. Landlord and Tenant agree that the percentage
square footage and exclusive parking space allocations effective as of the
commencement of the Term of this Lease are as set forth on Exhibit "I" attached
hereto.
(d) Each and every of the aforesaid Expense Projection amounts,
whether requiring lump sum payment or constituting projected monthly amounts
added to the Base Rent, shall for all purposes be treated and considered as
Additional Rent and the failure of Tenant to pay the same as and when due
without demand shall have the same effect as a failure to pay any installment
of the Base Rent and shall afford Landlord all of the remedies provided in this
Lease therefor, including, without limitation, the Late Charge as provided in
Paragraph 2(c) of this Lease.
(e) Tenant acknowledges and agrees that Landlord shall have the right
to change the period of the Lease Year, either before or during the Term, to any
other fiscal year or twelve month period. In the event that Landlord makes such
a change, then the same shall be effective upon written notice to Tenant and,
in such event, Tenant shall pay Tenant's Proportionate Share of Expenses paid
or incurred by Landlord over the Expenses paid or incurred by Landlord for the
period from the end of the initially designated Lease Year, as last billed, to
the beginning of the newly designated Lease Year, prorated for such period,
within twenty (20) days of the rendering by Landlord of the xxxx for such
interim period.
(f) Landlord and Tenant agree that the demised Premises shall include
the approximately ______ square foot area located in the Building which is used
by Landlord and Tenant for printing, copying, binding and reproducing documents
(the "Print Shop") and the approximately ____ square foot area located in the
Building which is used by Landlord and Tenant for receiving, sending and
sorting mail (the "Mailroom"). Tenant agrees to allow Landlord to utilize the
Mailroom and the Print Shop subject to the conditions and covenants of this
paragraph. Tenant hereby covenants to cause its employees in the Mailroom and
Print Shop to keep accurate records of all services and supplies used by
Landlord. On or before the fifth (5th) day of each month during the Term of
this Lease, Tenant shall deliver to Landlord an accounting of Landlord's use of
the Mailroom and the Print Shop for the previous month. Such accounting shall
enumerate the charges for the services and supplies used by Landlord, including
without limitation, postage, printing and copying costs. Landlord may object to
any item(s) contained in such accounting within ten (10) days of its receipt.
If Landlord and Tenant are not able to agree on the accounting within ten (10)
days of Landlord's objection, the dispute shall be referred to the Committee.
If the Committee is unable to resolve such issue within ten (10) days, the
matter shall be submitted to the General Counsel of each of Landlord and Tenant
as provided in subparagraph (g) below.
(g) For the protection of the Tenant, Landlord shall maintain books of
account, which shall be open to Tenant and its representatives so that Tenant,
at its sole cost and expense, may audit such books of account to determine that
any
7
Expenses have, in fact, been paid or incurred, said audit to be subject to the
following conditions:
i) Such audit shall be conducted only during such period as
Tenant is no longer operating and maintaining the Property pursuant to
Paragraph 4 hereof, and must be conducted during regular business hours at the
office where Landlord maintains said books of account;
ii) Tenant shall provide to Landlord fourteen (14) days' prior
written notice;
iii) Tenant is not in default of any of the terms and provisions
of the Lease from the time Tenant provides Landlord with notice through the time
such audit is conducted;
iv) If Tenant wishes to dispute any charges or items of Expense,
Tenant shall deliver to the Landlord a copy of the results of such audit within
fifteen (15) days of its receipt by Tenant; and
v) Tenant shall not request such audit more than two times each
Lease Year.
If, as a result of the audit, any disagreement with respect to any one
or more of the charges or items of Expense exists and is not satisfactorily
settled between Landlord and Tenant, either member of the Committee may submit
a notice of such disagreement to the General Counsel of each of Tenant and
Landlord. Within ten (10) days of Landlord's and Tenant's receipt of such
notice, a senior officer from each of Landlord and Tenant shall meet to resolve
the issues that the Committee was unable to agree upon. If such senior officers
are unable to resolve the issues within thirty (30) days, the matter shall be
referred by either party to an independent certified public accountant to be
mutually agreed upon, and if such an accountant cannot be agreed upon,
JAMS/Endispute may be asked by either party to select an arbitrator whose
decision shall be final and binding upon both parties, who shall jointly share
any cost of such arbitration. Pending resolution of said dispute, Tenant shall
pay to Landlord the sum so billed by Landlord, subject to the ultimate
resolution as described above. Notwithstanding anything herein to the contrary,
once Landlord shall have finally determined the Expenses at the expiration of
each Lease Year as described in Paragraph 3(c)(iv) above, then Tenant shall be
entitled to audit and dispute any charge or item of Expense so established for
a period of one (1) year after such charge is finally established, and Tenant
specifically waives any right to dispute or audit any such charge or item of
Expense at the expiration of said one (1) year period (provided that such
limitation shall not affect pending disputes which were timely initiated within
the limitation period). Tenant shall not be entitled to any such audit right
during any period in which Tenant operates and maintains the Property pursuant
to Paragraph 4 hereof.
(h) With respect to the period commencing on the Commencement Date and
ending on December 31, 1997, Landlord and Tenant hereby agree that the monthly
Tenant's Proportionate Share of the Expenses is $___________. On or prior to
January 15, 1998, the Committee shall review the actual Expenses incurred for
the period commencing on the date hereof to December 31, 1997. If Tenant paid
more than the Tenant's Proportionate Share of the actual Expenses for such
period, Landlord shall refund such difference to Tenant with ten (10) days.
However, if the Tenant's Proportionate Share of actual Expenses for such period
exceeds the amount Tenant paid to Landlord pursuant to this subparagraph (h),
Tenant shall pay to Landlord such difference within ten (10) days.
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4. Operation of Property. Tenant acknowledges that this Lease is made on
the express condition that Tenant agree to perform all services required in
connection with the operation of the Property, on behalf of, as agent for and
at the expense of (subject to Tenant's additional rent obligations hereunder)
Landlord, subject at all times to Landlord's general supervision and control
and to the terms and conditions set forth below.
(a) During the term of this Lease it shall be the duty and
responsibility of Tenant:
(1) To comply with the reporting requirements set forth in
Paragraph 3(c). Except as otherwise provided in this Lease, Tenant shall incur
no expense in connection with the Property that are not provided for in the
Expense Projection without the prior written consent of the Landlord.
(2) To make or cause to be made all necessary repairs to the
Improvements, to purchase all necessary supplies and materials, and to do all
other things necessary to maintain the Property in a clean, safe and orderly
condition and to ensure compliance with all federal, state and local statutes,
ordinances, rules and regulations applicable to the operation of the Property.
Unless otherwise provided for in the Expense Projection for the then current
year, the expense to be incurred for any single repair or purchase shall not
exceed the sum of $3,000.00 without prior authorization by Landlord, except in
the case of emergency, in which case Tenant shall promptly notify Landlord of
the repair or purchase. Tenant shall use its best efforts to make all repairs
and to obtain all materials, supplies and services at the lowest available
cost (best economic price) and shall remit to Landlord any rebate, commission,
or discount allowed in connection therewith.
(3) To contract for such services as shall be necessary and
advisable for the proper operation of the Property, provided, however, that
Tenant shall not contract for any services with respect to which an existing
contract does not exist or for which the estimated cost would exceed the cost
specified therefor in the Expense Projection without in each instance
Landlord's prior written consent thereto. Landlord specifically consents to the
contracts listed on Exhibit H.
(4) To perform all other services reasonably necessary for the
care, protection, maintenance and operation of the Property and the prevention
of waste, damage, or injury thereto. Tenant agrees that consistent with past
practice Tenant shall not contract out those services which Tenant's employees
have been performing at the Property, but shall continue to perform such
services during the term of this Lease. Any subcontracting of such services
shall be void.
(5) To hire, discharge and supervise all persons employed to
carry out Tenant's duties hereunder. It is expressly understood and agreed that
all such employees shall be employees of Tenant and not employees of Landlord.
(6) To establish and maintain complete and orderly files
containing correspondence, payroll records, insurance policies, receipts,
unpaid bills, vouchers and all other documents and papers pertaining to the
Property and the operation and maintenance thereof, all of which shall be and
remain the property of Landlord and shall be available to Landlord and its
representatives for inspection any time during regular business hours.
(7) To promptly investigate and make a full report within 72
hours as to all accidents or claims for damages
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relating to the operation and maintenance of the Property, including any damage
or destruction to the Property and the estimated cost of repair. In addition,
the Tenant shall cooperate and make any and all reports required by an
insurance company in connection therewith with a copy of such reports to be
delivered to the Landlord.
(8) To supervise the moving in and out of tenants and subtenants
and arrange the date thereof so that there shall be a minimum of disturbance to
the operation of the Property and of inconvenience to other tenants and
subtenants.
(9) To cause to be prepared and filed all necessary forms
relating to the maintenance and operation of the Property required by any
federal, state, county, or municipal authority having jurisdiction therefore.
(10) To cooperate with the Landlord's accountants and auditors
in regard to the annual audit or any periodic audits of the books of account of
the Landlord. The Landlord may also conduct an external audit of the Tenant,
provided that the cost of same is paid by the Landlord to said independent
auditor. The Tenant agrees to cooperate with the Landlord's independent
auditor.
(11) To cooperate with Landlord's accountants in regard to the
preparation and filing on behalf of the Landlord's federal, state, city, and
any other income and other filings required by any governmental authority.
(12) To establish and maintain, in accordance with generally
accepted accounting principles, consistently applied, accurate and complete
books of account with proper entries of all receipts, income and disbursements
pertaining to the Property, which books of account shall be and remain the
property of Landlord and shall be available to Landlord and its representative
for inspection at any time during regular business hours.
(13) To review all bills and statements received for services,
work, supplies and other expenditures incurred by or on behalf of Landlord in
connection with the maintenance and operation of the Property and to pay or
cause to be paid in a timely fashion all expenses specified in the Expense
Projection and all other expenses approved by Landlord.
(14) To review periodically all hazard, liability and other
insurance carried for the account of Landlord in connection with the Property
and to maintain in force and effect such insurance coverage with such carriers
as Landlord may designate and approve. (15) To prepare and furnish such
financial reports and statements as may be reasonably requested by
Landlord.
(16) To generally do all things reasonably deemed necessary or
desirable for the proper operation and maintenance of the Property.
(17) To perform, for the Landlord's account and on its behalf,
any lawful act and everything lawful and necessary or desirable in order to
carry out the Tenant's agreements contained in this Paragraph 4(a).
(b) Advances by Tenant. Payments to be made by Tenant at Landlord's
expense shall be advanced by Tenant out of Tenant's own funds to the extent
that such advances do not exceed the amount of Tenant's next monthly
installment of Rent due hereunder, and provided further that Tenant has been
fully
10
reimbursed for all advances made prior to the current month. Except as provided
in the previous sentence, Tenant shall not be obligated to make any advance to
or for the account of Landlord or to pay any amount except out of funds held
for or provided by Landlord. If Tenant voluntarily advances funds for
Landlord's account in excess of Tenant's next monthly installment of Rent due
hereunder and any funds held for or provided by Landlord which are for the
payment of any expense not requiring Landlord's prior approval, Landlord shall
reimburse Tenant therefor on demand. Not less than ten (10) business days prior
to Tenant's payment of the monthly installment of Rent due hereunder, Tenant
shall deliver to Landlord an invoice detailing all payments made by Tenant on
Landlord's behalf in accordance with this paragraph and including a calculation
of the Tenant's Proportionate Share of such amount. Provided that Landlord does
not object to such invoice and calculation within five (5) business days after
receipt by Landlord, Tenant shall be entitled to offset the Tenant's
Proportionate Share of the amount of such invoice against Tenant's next
installment of Rent due hereunder. If Landlord and Tenant are not able to agree
on the proper Rent offset amount within ten (10) days of Landlord's objection,
the dispute shall be referred to the Committee. If the Committee is unable to
resolve such issue within ten (10) days, the matter shall be submitted to the
General Counsel of each of Landlord and Tenant as provided in Paragraph 3(g).
(c) Tenant's Overhead. Landlord shall not be responsible for the
payment of Tenant's general overhead or administrative expenses.
(d) Tenant's Compensation. Tenant acknowledges that Tenant's
responsibilities to operate the Property hereunder are in consideration of this
Lease and that Tenant shall not be entitled to any management fee or other
separate consideration.
(e) Termination of Agency. Landlord reserves the right to terminate
the agency created under this Paragraph 4, without cause, upon thirty (30) days
written notice to Tenant, upon which termination the rights and obligations of
the parties under this Paragraph 4, including but not limited to Tenant's Rent
offset rights, shall be of no further force and effect. Within thirty (30) days
of termination of the rights and obligations of the parties under this
Paragraph 4, the parties shall account to each other with respect to all
uncompleted business, and the Tenant shall deliver to the Landlord all leases,
subleases, corporate files, service agreements, books and records, and other
instruments relating to the Property and the Landlord that may be in possession
of the Tenant.
5. Covenants as to Condition of Demised Premises and Compliance with Laws.
(a) In the event that the Building or any of the equipment affixed
thereto or stored therein should be damaged as a result of any act of Tenant,
its agents, servants, employees, invitees or contractors, Tenant shall, upon
demand, pay to Landlord the cost of all required repairs, including structural
repairs. Tenant shall commit no act of waste and shall take good care of the
Demised Premises and the equipment affixed thereto and stored therein, shall
maintain the Demised Premises in good condition and state of repair and, upon
the Expiration Date or other termination of this Lease, shall deliver up the
Demised Premises in good order and condition, wear and tear from a reasonable
use thereof and the effects of casualty and condemnation excepted. Landlord
shall perform, or cause to be performed, all such maintenance and repairs and
Tenant shall pay to Landlord the costs incurred therefor as Additional Rent
within twenty (20) days of receipt of an invoice for such work.
(b) Tenant, at Tenant's expense, shall promptly
11
comply with all laws, rules, regulations and ordinances, of all governmental
authorities or agencies having jurisdiction over the Demised Premises, and of
all insurance bodies (including, without limitation, the Board of Fire
Underwriters), at any time duly issued or in force, applicable to the Demised
Premises or any part thereof or to Tenant's use thereof, including, without
limitation the Americans with Disabilities Act ("Laws" or, as the context
requires, "laws"). Nothing contained herein shall obligate Tenant to make any
structural repairs or modifications to the Demised Premises, or repairs or
modifications to any portions within the Demised Premises of the Building,
HVAC, fire safety (including without limitation, sprinklers), electrical,
plumbing or other systems, unless as a result of any Law applicable to Tenant's
particular manner of use of the Demised Premises as opposed to Laws applicable
to the Building or business offices generally. In no event shall the Demised
Premises be construed to include any Common Areas for purposes of this
Paragraph 5(b).
(c) Landlord shall perform all maintenance and make all repairs to the
Common Areas in accordance with standards of Class A office buildings in the
Virginia Beach, Virginia area. In addition, Landlord shall perform all
maintenance and make all repairs to the Common Areas that are necessary to
comply with any applicable laws, the costs of which shall be shared with Tenant
as an Expense.
(d) Landlord has made no representations or warranties whatsoever
with respect to the Property, other than those expressly set forth in this
Lease. The Demised Premises shall be delivered to Tenant "as-is" and Landlord
shall have no obligation to perform any work at the Property, or provide any
work allowances or tenant funds to prepare the Demised Premises for Tenant's
use. Without limiting the generality of the foregoing, Tenant acknowledges that
Landlord shall not be required to erect demising walls around the Demised
Premises. Tenant acknowledges that Tenant is Landlord's predecessor-in-interest
to the Property, and as such, has made its own independent investigations and
inquiries as it has deemed appropriate with respect to the condition and
current occupancy of the Property the status of title thereto, and that in
making its decision to enter into this Lease Tenant is not relying upon nor has
Landlord made any representations or warranties with respect to any such
matters.
6. Tenant Alterations.
(a) All fixtures, equipment, improvements, alterations, installations
which are attached to the Demised Premises; any additions and appurtenances
made by Tenant to the Demised Premises; and any Tenant Improvements (excluding
Tenant's trade fixtures, business equipment, movable partitions, and personal
property), shall become the property of Landlord upon installation. Not later
than the last day of the Term, Tenant shall, at its expense, remove from the
Demised Premises all of Tenant's trade fixtures, business equipment, movable
partitions, personal property, and any Alterations made by Tenant after
Landlord has notified Tenant of its approval of the same on the condition that
such Alteration must be removed prior to the last day of the Term pursuant to
this Paragraph 6. Tenant, at its sole cost and expense, shall repair injury
done by or in connection with the installation or removal of its property or
Alterations required to be removed in accordance herewith. Any equipment,
fixtures, goods or other property of Tenant not removed by Tenant upon the
termination of this Lease, or upon any quitting, vacating, or abandonment of
the Demised Premises, shall be considered as abandoned, and Landlord shall have
the right, without any notice to Tenant, to sell or otherwise dispose of the
same, at the expense of Tenant, and shall not be accountable to Tenant for any
part of the proceeds of such sale, if any.
12
Landlord may have any such property stored at Tenant's sole risk and expense.
(b) Tenant, without Landlord's prior consent, shall have the right to
make non-structural alterations, installations, additions or improvements in or
to the Demised Premises that (i) involve a total cost of not more than Ten
Thousand Dollars ($10,000.00), (ii) do not require a building permit to be
issued by any governmental authority to legally make same, (iii) do not affect
any existing Building systems outside the Demised Premises and do not impair or
adversely affect any existing Building systems within the Demised Premises, and
(iv) do not result in a violation of the Permitted Use of the Demised Premises.
No other alterations, installations, additions or improvements (structural or
non-structural) shall be made by Tenant without Landlord's express prior
written approval. Landlord agrees that approval of such other alterations,
installations and improvements shall not be unreasonably withheld, conditioned
or delayed. Tenant shall give Landlord prior written notice of any proposed
alterations, installations, additions or improvements ("Alterations") which
require Landlord's approval with copies of proposed plans. Tenant shall supply
Landlord with as-built plans upon completion of the Alterations. Landlord shall
have the right to require as a condition of its approval that Tenant remove any
Alteration made to the Demised Premises prior to the expiration of the Lease
and to restore the Demised Premises to the condition existing prior to said
Alteration, provided that Landlord notifies Tenant of such condition at the
time of Landlord's approval. All such Alterations shall be done at Tenant's
sole expense and the making thereof shall not interfere with the use of the
Building by other Landlord. Tenant agrees to indemnify, defend and hold
harmless Landlord from any and all costs, expenses, claims, causes of action,
damages and liabilities of any type or nature whatsoever (including, but not
limited to, reasonable attorneys fees and costs of litigation) arising out of
or relating to the making of the Alterations by Tenant. Nothing herein
contained shall be construed as constituting the permission of Landlord for a
contractor, subcontractor or mechanic to file a construction lien claim against
the Demised Premises or the Building and Tenant agrees to secure the removal of
any such lien which a contractor, subcontractor or mechanic purports to file
against the Demised Premises or the Building by payment, bonding or otherwise
pursuant to law. All such Alterations shall be effected in compliance with all
applicable laws, ordinances, rules and regulations of government bodies having
or asserting jurisdiction over the Demised Premises and/or the Building.
7. Various Negative Covenants by Tenant. Tenant agrees that it shall not,
without Landlord's prior written consent, which consent may be withheld in
Landlord's sole discretion:
(a) do anything in or near the Building which will increase the rate
of fire insurance on the Building;
(b) permit the accumulation of waste or refuse matter in or near the
Demised Premises, except in containers provided therefor;
(c) mortgage, hypothecate, pledge or encumber this Lease in whole or
in part;
(d) except as expressly permitted herein, allow any signs, lettering
or advertising matter to be erected or attached to the Demised Premises which is
visible from outside of the Demised Premises; or
(e) encumber or obstruct the Common Areas surrounding the Demised
Premises, nor cause same to be encumbered
13
or obstructed, nor encumber or obstruct any access ways to the Demised
Premises, nor cause same to be encumbered or obstructed.
8. Various Affirmative Covenants of Tenant. Tenant covenants and agrees
that Tenant will:
(a) At any time and from time to time execute, acknowledge and deliver
to Landlord, or to any existing or prospective mortgagee, purchaser or ground
lessor of the Building Landlord shall designate, within ten (10) days of
receipt of request therefor, a tenant estoppel certificate in form reasonably
acceptable to the party requesting the same relating to matters customarily
included in tenant estoppel certificates.
(b) Faithfully observe and comply with the rules and regulations
annexed hereto and made a part hereof as Exhibit "D" and such additional
reasonable rules and regulations as Landlord may hereafter at any time or from
time to time communicate in writing to Tenant, and which, in the reasonable
judgment of Landlord, shall be necessary or desirable for the reputation,
safety, care or appearance of the Building, or the preservation of good order
therein, or the operation or maintenance of the Building, or the equipment
thereof, or the comfort of occupants in the Building; provided, however, that
in the case of any conflict between the provisions of this Lease and any rules
and regulations, the provisions of this Lease shall control. Landlord shall not
be liable to Tenant for violation of any rule or regulation by its employees,
agents, visitors, invitees, subtenants or licensees.
9. Casualty and Insurance.
(a) In the event of partial or total destruction of the Building or
the Demised Premises by reason of fire or any other cause, Tenant shall
immediately notify Landlord of same and, subject to the provisions of this
Paragraph 9(a), Landlord shall promptly restore and rebuild the Building and/or
the Demised Premises at Landlord's expense (but only to the extent of the
insurance proceeds covering such damage actually received by Landlord) unless
Landlord elects by notice to Tenant within ninety (90) days of said destruction
not to restore and rebuild the Building and/or Demised Premises, and, in such
case, upon a date specified in said notice by Landlord, this Lease shall
terminate. If Landlord elects to restore and rebuild the Demised Premises, then
during the period of restoration of any such area, if any portion of the
Demised Premises are rendered untenantable by said damage, Tenant shall be
relieved of the obligation to pay that portion of the rent herein reserved
which relates to said untenantable area.
(b) Tenant may request copies of any insurance policies affecting the
Building and/or the Demised Premises. Landlord shall provide such copies within
ten (10) business days. Landlord and Tenant waive all rights of recovery
against each other and the additional insureds for any loss, damages, or injury
of any nature whatsoever to property or persons for which the waiving party is
insured.
(c) During the Term, each party shall maintain in effect in each
insurance policy required under this Lease a waiver of subrogation in favor of
the other party and the additional insureds from its then-current insurance
carriers, and shall upon request of the other party (made not more frequently
than quarterly) furnish evidence of such currently effective waiver. Such
waiver shall be in customary form and, without limitation, shall provide that
no cancellation or lapse thereof or change therein shall be effective until
after thirty (30) days' written notice to the parties at the addresses
specified in Paragraph 17 of this Lease.
14
(d) Landlord shall maintain or cause to be maintained: (i) commercial
general public liability insurance in respect of the Building(which for the
purposes of this Paragraph 9(d) includes the Demised Premises) with limits of
not less than _____ Million Dollars ($__,000,000) combined single limit for
bodily injury or death and property damage in any one occurrence, including
water damage and sprinkler leakage legal liability; and (ii) fire and extended
coverage insurance (including, without limitation, rent insurance) in respect
of the Building for the benefit of Landlord and Tenant. The fire and extended
coverage insurance with respect to the Building shall be in the amount of full
replacement value. Landlord shall have the right to provide any insurance
maintained or caused to be maintained by it under blanket policies. All
insurance premiums are hereby deemed to be included in the definition of
"Expenses," and Tenant shall pay its pro rate shares of all such insurance
premiums.
(e) Tenant understands that Landlord will not carry insurance of any
kind on Tenant's personal property and that Tenant shall be obligated to repair
any damage thereto or replace same. Tenant shall throughout the Term hereof, at
its own expense, provide or cause to be provided and kept in force, commercial
general liability insurance against claims of personal injury or death and
property damage caused by an occurrence upon, in or about the Demised Premises,
or the Parking Area, which shall afford protection to limits of not less than
the amount of $3,000,000 in respect of personal injury or death to any one
person and in respect of injury of death to any number of persons arising out
of any one accident, and against property damage in respect of any instance of
property damage. Tenant shall include Landlord as an additional insured under
its liability insurance policies. Tenant shall furnish to Landlord as
reasonably requested, certificates of insurance evidencing the existence of
insurance as required by this paragraph. All such policies shall be issued by
companies of recognized responsibility licensed to do business in the state in
which the Property is located.
10. Indemnification.
Tenant shall indemnify and hold Landlord harmless from and against all
claims, liability, costs and expense (including reasonable attorneys' fees and
disbursements) arising out of or in connection with (i) Tenant's use or
occupancy of the Demised Premises, (ii) any accident, injury or damage
occurring in or about the Property caused by the negligence of Tenant, its
agents, servants, contractors or employees in connection with Tenant's
provision of maintenance and other services in its capacity as Landlord's agent
in operating and maintaining the Property, (iii) any accident, injury or damage
occurring in or about the Demised Premises during the Term of this Lease, and
not caused by the negligence of Landlord, its agents (other than Tenant),
servants, contractors or employees and (iv) any breach, violation or
non-performance by Tenant of any term, condition or provision of this Lease.
Landlord shall indemnify and hold Tenant harmless from against all claims,
liability, costs and expense (including reasonable attorneys' fees and
disbursements) arising out of or in connection with (i) Landlord's use and
occupancy of the Property other than the Demised Premises, (ii) any accident,
injury or damage occurring in or about the Property other than the Demised
Premises, and not caused by the negligence or willful misconduct of Tenant,
its agents, servants, contractors or employees, or acts taken outside the scope
of Tenant's agency hereunder, and (iii) any breach, violation or
non-performance by Landlord of any term, condition or provision of this Lease.
The indemnities set forth in this Paragraph 10 shall survive the Expiration
Date or sooner termination of this Lease.
11. Non-Liability of Landlord. Landlord shall not be liable for (and
Tenant shall make no claim for) any property
15
damage or personal injury which may be sustained by Tenant or any other person
as a consequence of the failure, breakage, leakage, inadequacy, defect or
obstruction of the water, plumbing, steam, sewer, waste or soil pipes, roof
drains, leaders, gutters, valleys, downspouts, or the like or of the
electrical, gas, power, conveyor, refrigeration, sprinkler, air conditioning or
heating systems, elevators or hoisting equipment; or Tenant's agents,
employees, guests, licensees, invitees, subtenants, assignees or successors; or
attributable to any interference with, interruption or failure of any services
or utilities to be furnished or supplied by Landlord. Tenant shall give
Landlord prompt written notice of the occurrence of any events set forth in
this Paragraph 11.
12. Remedies and Termination Upon Tenant Default.
(a) In the event that:
(1) any Base Rent, or any Additional Rent or other charge payable
hereunder on a monthly basis by Tenant to Landlord, on any date upon which the
same becomes due, and such default shall continue for five (5) days after the
same becomes due; or
(2) Tenant shall default in payment of any Additional Rent or any
other charge payable hereunder which is not due and payable hereunder on a
monthly basis, on any date upon which the same becomes due, and such default
shall continue for five (5) days after Landlord shall have given to Tenant a
written notice specifying such default; or
(3) Tenant shall default in the due keeping, observing or
performing of any covenant, agreement, term, provision or condition of
Paragraph l(c) of this Lease on the part of Tenant to be kept, observed or
performed and if such default shall continue and shall not be remedied by
Tenant within one (1) business day after Landlord shall have given to Tenant a
written notice specifying the same; or
(4) Tenant shall default in the due keeping, observing or
performing of any covenant, agreement, term, provision or condition of this
Lease on the part of Tenant to be kept, observed or performed (other than a
default of the character referred to in clauses (1), (2), or (3) of this
Paragraph 12(a), and if such default shall continue and Tenant has not cured
such default within thirty (30) days after Landlord shall have given to Tenant
a written notice specifying the same; then, Landlord may, in addition to any
other remedies herein contained, as may be permitted by law, without being
liable for prosecution therefor, or for damages, reenter the Demised Premises
and have and again possess and enjoy the same; and as agent for Tenant or
otherwise, re-let the Demised Premises and receive the rents therefor and
apply the same first to the payment of such expenses, reasonable attorney fees
and costs, as Landlord may have been put to in re-entering and repossessing the
same and in making such repairs and alterations as may be necessary and second
to the payment of the rents due hereunder. Tenant shall remain liable for such
rents as may be in arrears and also the rents as may accrue subsequent to the
re-entry by Landlord to the extent of the difference between the rents reserved
hereunder and the rents, if any, received by Landlord during the remainder of
the unexpired Term hereof, after deducting the aforementioned expenses, fees
and costs; the same to be paid as such deficiencies arise and are ascertained
each month. Landlord, at its option, may require Tenant to pay in a single
lump sum payment, at the time of such termination or reentry, as the case may
be, a sum which represents the present value (using a discount rate of six
percent (6%) per annum of the excess of the aggregate of the Base Rent which
would have been
16
payable by Tenant for the period commencing with such termination or re-entry,
as the case may be, and ending on the originally fixed Expiration Date of the
Term, over the aggregate rental value of the Demised Premises for the same
period. Nothing herein shall impose upon Landlord the duty to mitigate its
damages in the event of a default by Tenant, and the parties hereto agree that
Landlord shall not be obligated to do so.
(b) Upon the occurrence and continuance beyond the applicable notice
and cure period of any of the events set forth in the preceding subparagraph
(a) of this Paragraph 12, or should Tenant be adjudicated a bankrupt or
insolvent, or placed in receivership, or should proceedings be instituted by or
against Tenant for bankruptcy, insolvency, receivership, agreement of
composition, or assignment for the benefit of creditors (which proceedings
against Tenant are not dismissed within ninety (90) days after the same are
instituted), or if this Lease or the estate of Tenant hereunder shall pass to
another by virtue of any court proceedings, writ of execution, levy, sale, or
by operation of law, Landlord may, if Landlord so elects, at any time
thereafter, terminate this Lease and the Term hereof upon giving to Tenant or
to any trustee, receiver, assignee or other person in charge of or acting as
custodian of the assets or property of Tenant, five (5) days' notice in writing
of Landlord's intention so to do. Upon the giving of such notice, this Lease
and the Term hereof shall end on the date fixed in such notice as if the same
date was the Expiration Date; and Landlord shall have the right to remove all
persons, goods, fixtures and chattels therefrom by any lawful means without
liability for damages.
13. Remedies Cumulative: Non-Waiver By Landlord. The various rights,
remedies, options and elections of Landlord expressed herein are cumulative and
the failure of Landlord to enforce strict performance by Tenant of the
conditions and covenants of this Lease, to exercise any election or option, or
to resort or have recourse to any remedy herein conferred, or the acceptance by
Landlord of any installment of rent after any breach by Tenant, in any one or
more instances, shall not be construed or deemed to be a waiver or a
relinquishment for the future by Landlord of any such conditions and covenants,
options, elections or remedies, but the same shall continue in full force and
effect.
14. Services: Electric Energy.
(a) Landlord shall (i) supply heating, ventilation, and air
conditioning to the Demised Premises in accordance with the HVAC Specifications
attached hereto as Exhibit "E"; (ii) provide snow and ice removal for the
parking area, sidewalks and driveways in a reasonably expeditious manner; and
(iii) provide refuse removal from a dumpster to be provided on site to be used
for normal paper waste attendant to an office building; (iv) supply hot and
cold running water to the Demised Premises; and (v) provide elevator service.
"Business Hours" as used in this Lease, means the generally customary daytime
business hours of Tenant but not before 8:00 A.M. or after 6:00 P.M. on
weekdays and 8:00 A.M. to 1:00 P.M. on Saturdays, and not including Sundays and
Building Holidays. Tenant agrees at all times to cooperate fully with Landlord
and to abide by all the regulations and requirements which Landlord may
reasonably prescribe for the proper functioning and protection of such HVAC
system. Landlord shall clean the Demised Premises in accordance with the
cleaning schedule annexed hereto as Exhibit "F". The cost of the services and
utilities provided pursuant to this Paragraph 14(a) is included in Expenses as
defined in Paragraph 3(a). So long as Landlord is providing the services listed
in this subparagraph (a), in the event of a failure of one of the same, Tenant
shall provide Landlord with notice of the same. Upon receipt of such notice,
Landlord agrees promptly, diligently
17
and with continuity to take all reasonable steps to remedy such failure. If the
failure of any one of those services continues for more than five (5)
consecutive business days after Tenant has provided such notice to Landlord and
renders all or a portion of the Demised Premises untenantable, Landlord agrees
that Tenant shall be entitled to a proportionate abatement of Base Rent and
Additional Rent with respect to the portion of the Demised Premises so affected
for the full period of such failure until the affected portion of the Demised
Premises is again tenantable, and Tenant acknowledges that this abatement shall
be the Tenant's sole remedy in the event of the foregoing event.
(b) Provided Tenant is not then in default of this Lease beyond the
expiration of any applicable notice and cure period, Landlord shall provide to
Tenant overtime services and utilities when and to the extent reasonably
requested by Tenant. Tenant shall pay to Landlord, as Additional Rent, a charge
for such additional service and utilities determined in accordance with the
schedule attached hereto as Exhibit "G", which charge shall cover the actual
cost of Landlord in providing such overtime services and the applicable cost of
the depreciation of the HVAC equipment, including, without limitation, the cost
of the utility usage, the cost of maintenance, repairs and inspections of
Building systems, and employee and administrative costs related to such
services. Such charge shall constitute a direct charge to Tenant and not an
Expense as defined in Paragraph 3.
(c) Landlord reserves the right, without liability to Tenant and
without constituting any claim of constructive eviction, to stop or interrupt
temporarily any heating, lighting, ventilating, air conditioning, gas, steam,
power, electricity, water or other service and to stop or interrupt temporarily
the use of the Building facilities at such times and for as long as is
necessitated by reason of accidents, strikes, or the making of repairs,
alterations or improvements, or inability to secure a proper supply of fuel,
gas, steam, water, electricity, labor or supplies, or by reason of any other
similar or dissimilar cause beyond the reasonable control of Landlord. Except
as specifically provided in Paragraph 14(a) hereof, no such stoppage or
interruption shall entitle Tenant to any diminution or abatement of rent or
other compensation nor shall this Lease or any of the obligations of Tenant be
affected or reduced by reason of any such stoppage or interruption.
(d) Landlord shall furnish to Tenant, through the transmission
facilities installed in the Demised Premises, electric energy to be used by
Tenant, at Tenant's expense as provided for in this Paragraph 14, in the
Demised Premises in such reasonable quantity as shall be sufficient to meet
Tenant's ordinary business needs for lighting and the operation of its business
machines, including, without limitation, photocopy equipment and computer and
data processing equipment, provided that Landlord shall not be obligated to
provide such electrical energy in any amount in excess of an average connected
load of six (6) xxxxx of electric consumption for all purposes per square foot
of rentable area.
(e) Landlord shall charge Tenant for such electrical usage at
Landlord's actual cost therefor (based upon the average kilowatt hour cost of
each invoice) without xxxx-up and Tenant shall pay such amount to Landlord
as Additional Rent hereunder within thirty (30) days of Landlord's giving
Tenant notice of the amount then due.
(f) In the event that Tenant shall require electric energy for use in
the Demised Premises in excess of the quantity to be initially furnished as
herein provided and if, in Landlord's judgment, such excess requirements cannot
be furnished unless additional risers, conduits, feeders, switchboards and/or
18
appurtenances are installed in the Building, Landlord, upon written request of
Tenant, shall proceed with reasonable diligence to install such additional
risers, conduits, feeders, switchboards and/or appurtenances, provided the same
and the use thereof shall not cause permanent damage or injury to the Building
or the Demised Premises, or cause or create a dangerous or hazardous condition,
or entail excessive or unreasonable alterations or repairs, or interfere with
or disrupt other occupants of the Building, and Tenant agrees to pay all costs
and expenses incurred by Landlord in connection with such installation.
(g) Landlord shall in no way be liable or responsible to Tenant for
any loss or damage or expense which Tenant may sustain or incur by reason of any
failure, inadequacy or defect in the character, quantity or supply of
electrical energy furnished to the Demised Premises except for actual damage
other than property damage suffered by Tenant by reason of any negligence or
intentional misconduct of Landlord or its agents, employees or contractors.
15. Subordination. Subject to the last sentence of this Paragraph 15, this
Lease shall be subject and subordinate in all respects to all mortgages which
may now or hereafter be placed on the Land, the Building or the Demised
Premises, and also to all renewals, modifications, consolidations and
extensions of such mortgages. Although no instrument or action on the part of
Tenant shall be necessary to effectuate such subordination, Tenant shall,
nevertheless, execute and deliver such further instruments confirming such
subordination as may be desired by the holder of any such mortgage. Subject to
the last sentence of this Paragraph 15, if any mortgage to which this Lease is
subordinate is foreclosed, Tenant shall, on timely request, attorn to the
mortgagee in possession. If Landlord shall notify Tenant that the Demised
Premises or the Building is encumbered by a mortgage, giving in such notice the
name and address of the mortgagee, then notwithstanding anything in this Lease
to the contrary, no notice intended for Landlord shall be deemed properly given
unless a copy thereof is simultaneously sent to such mortgagee in the manner
provided for in Paragraph 17. Notwithstanding anything herein to the contrary,
the aforesaid subordination of this Lease shall be conditioned on Tenant's
receiving, and Landlord agrees to obtain on behalf of Tenant, a subordination,
nondisturbance, and attornment agreement from any existing or future holder(s)
of any mortgages, which agreement shall be in a form satisfactory to such
holder(s) in its sole discretion; however, any charges assessed by the
holder(s) of the aforesaid mortgages in connection with the obtaining of such
agreement shall be paid by Tenant.
16. Curing Tenant's Defaults. If Tenant shall fail or refuse to comply
with and perform any conditions and covenants of this Lease beyond the
expiration of any applicable notice and cure period, Landlord may, if Landlord
so elects, carry out and perform such conditions and covenants, at the cost and
expense of Tenant, and the said cost and expense shall be payable on demand,
or, at the option of Landlord, shall be added to the installment of Base Rent
due immediately thereafter but in no case later than one month after such
demand, whichever occurs sooner, and shall be due and payable as such. This
remedy shall be in addition to such other remedies that Landlord may have
hereunder by reason of the breach of Tenant of any of the covenants and
conditions in this Lease contained.
17. Notices. Any notice, demand, statement or other communication which
under the terms of this Lease or under any statute or law must or may be given
shall be given by hand delivery, or by registered or certified mail, return
receipt requested, or by reputable private overnight delivery service providing
a receipt of delivery or refusal, delivered or
19
addressed to the respective parties at the following address:
To Landlord: WizCom International, Ltd.
0 Xxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Senior Vice-President - Corporate
Counsel
To Tenant: Avis Rent A Car System, Inc.
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Any such notice, demand, statement or other communication shall be deemed to
have been given or made (i) upon delivery if hand delivered, (ii) on the date
of first attempted delivery if mailed postage paid, certified or registered
mail, and (iii) on the next business day if delivered charges prepaid or
charged to sender, to a reputable private overnight delivery service. Any of
the above addresses may be changed at any time by notice given as provided
above. Legal counsel for the respective parties may provide the requisite
notice(s) hereunder on behalf of their respective clients.
18. Quiet Enjoyment. Landlord covenants that Tenant upon keeping and
performing each and every covenant, agreement, term, provision and condition
herein contained on the part and on behalf of Tenant to be kept and performed,
shall quietly enjoy the Demised Premises without hindrance or molestation by
Landlord or by any other person lawfully claiming by, through or under the
same, subject to the covenants, agreements, terms, provisions and conditions of
this Lease and the effects of the application of same. The foregoing covenant
is and shall be, in addition to and not in derogation of Tenant's implied right
to quiet enjoyment.
19. Inspection and Entry by Landlord.
(a) Tenant agrees to permit Landlord and Landlord's agents, employees
or other representatives to show the Demised Premises to any mortgagee or any
persons wishing to rent or purchase the Building or during the last twelve (12)
months of the Term, to prospective tenants or purchasers.
(b) Tenant agrees that, Landlord and Landlord's agents, employees or
other representatives, shall have the right to enter into and upon the Demised
Premises or any part thereof, at all reasonable hours, for the purpose of
inspecting the same, or performing maintenance, or making such repairs or
alterations therein as may be necessary for the safety and preservation
thereof. This clause shall not be deemed to be a covenant by Landlord nor be
construed to create an obligation on the part of Landlord to make any
inspection or repairs which Landlord is not otherwise obligated to make
pursuant to the express provisions of this Lease.
20. Parking. Subject to the rules and regulations imposed by Landlord
hereunder, Tenant shall have the right under this Lease to the exclusive use of
_______ (___) spaces in the Parking Area, as depicted on the parking plan
attached hereto as Exhibit "C", and the nonexclusive use of the remaining
parking spaces in the Parking Area, subject to common use by Landlord, other
tenants of the Building and its and their guests, employees, invitees and
licensees, provided, however, Landlord shall have the right to designate
parking spaces for the exclusive use by Landlord and/or other tenants of the
Building so long as the number of parking spaces available for common use is
not less than seventy percent of the total number of parking spaces not
designated for Tenant's exclusive use.
21. Landlord's Inability to Perform. Except as
20
expressly provided herein, this Lease and the obligation of Tenant to pay the
rent hereunder and to comply with the covenants and conditions hereof shall not
be affected, curtailed, impaired or excused because of the Landlord's inability
to supply any service or material called for herein, by reason of any rule,
order, regulation or preemption by any governmental entity, authority,
department, agency or subdivision or for any delay which may arise by reason of
negotiations for the adjustment of any fire or casualty loss or because of
strikes or other labor trouble beyond Landlord's control or for any other
reason constituting Force Majeure. "Force Majeure" shall mean and include those
situations beyond either party's control, including by way of example and not
limitation, acts of God, accidents, strikes, shortages of labor, supplies, or
materials, inclement weather, scheduling of planning board meetings or other
municipal action affects any issuance of construction permits and/or approvals,
or, where applicable, the passage of time while waiting for an adjustment of
insurance proceeds.
22. Condemnation.
(a) In the event that the whole of the Demised Premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use or
purpose or is transferred, under threat of condemnation, by Landlord to any
party having the right of condemnation (any of such acts are referred to herein
as "eminent domain"), this Lease and the Term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title (hereinafter
referred to as the "date of taking"), and Tenant shall have no claim against
Landlord for, or make any claim for the value of, any unexpired term of this
Lease, and the Base Rent and Additional Rent shall be apportioned as of such
date.
(b) In the event that any part of the Demised Premises shall be so
condemned or taken, this Lease shall be and remain unaffected by such
condemnation or taking, except that the Base Rent and Additional Rent allocable
to the part so taken shall be apportioned as of the date of taking, and Tenant
shall have no claim against Landlord for, or make any claim for the value of,
the portion of the unexpired Term of this Lease allocable to the part so taken,
provided, however, that the Landlord may elect to cancel this Lease in the
event more than twenty-five percent (25%) of the Demised Premises should be so
condemned or taken, provided such notice of election is given by Landlord to
Tenant not later than sixty (60) days after the date when title shall vest in
the condemning authority. Upon the giving of such notice, this Lease shall
terminate on the thirtieth (30th) day following the date of such notice, and
the Base Rent and Additional Rent shall be apportioned as of such termination
date, and Tenant shall have no claim against Landlord for, or make any claim
for the value of, the unexpired Term of this Lease. Upon such partial taking
and this Lease continuing in force as to any part of the Demised Premises, the
Base Rent and Additional Rent shall be diminished by an amount deemed by
Landlord, in its sole but reasonable judgment, to represent the part of the
Base Rent and Additional Rent properly applicable to the portion or portions of
the Demised Premises which may be so condemned. If, as a result of the partial
taking (and this Lease continuing in force as to the part of the Demised
Premises not so taken), any part of the Demised Premises not taken is damaged,
Landlord agrees with reasonable promptness to commence the work necessary to
restore the damaged portion to substantially the same condition and
tenantability existing immediately prior to the taking.
(c) Nothing herein provided shall preclude Tenant from appearing,
claiming, proving and receiving in the condemnation proceeding Tenant's moving
expenses and the value of trade fixtures and any leasehold improvements paid
for by Tenant,
21
provided such claim shall be separate from and shall not adversely affect
Landlord's award.
(d) Subject to the provisions of Paragraph 22(c), the entire award for
any act of eminent domain shall be paid to Landlord, and, in the event of a
partial taking, if this Lease is not canceled pursuant to the provisions of
this Paragraph 22, Landlord, at Landlord's own expense, shall restore the
unaffected part of the Demised Premises to substantially the same condition and
tenantability as existed prior to the taking. Until said unaffected portion is
restored, Tenant shall be entitled to a proportionate abatement of Base Rent
and Additional Rent of that portion of the Demised Premises which is being
restored and is not usable until the completion of the restoration or until the
said portion of the Demised Premises is used by Tenant, whichever occurs
sooner. Said unaffected portion shall be restored within a reasonable time,
provided, however, if Landlord is delayed by Force Majeure, the time for
completion shall be extended for a period equivalent to the delay. If such
partial taking shall occur in the last year of the Term, then, notwithstanding
anything to the contrary set forth in this Lease, either party, irrespective of
the area of the space remaining, may elect to cancel this Lease and the Term
hereby granted, provided such party shall, within sixty (60) days after such
taking, give notice to that effect, and upon the giving of such notice, the
Base Rent and Additional Rent shall be apportioned and paid to the date of
expiration of the term specified, which date shall be not more than thirty (30)
days after the date of such notice, and this Lease and the Term hereby granted
shall cease, expire and come to an end upon the expiration of the period
specified in said notice. If either party shall so elect to end this Lease and
the Term hereby granted, Landlord need not restore any part of the Demised
Premises.
(e) If the temporary use or occupancy of all or any part of the
Demised Premises shall be so taken, (i) the Term shall not be reduced or
affected in any way except as provided in (iv) below, (ii) Tenant shall
continue to be responsible for all of its obligations hereunder and shall
continue to pay all Base Rent and Additional Rent when due, (iii) Tenant shall
be entitled to receive that portion of the award which represents reimbursement
for the cost of restoration of the Demised Premises, compensation for the use
and occupancy of the Demised Premises and for any taking of Tenant's property,
except that, if the temporary period of taking shall extend beyond the
expiration of the Term, the portion of the award representing compensation for
the use and occupancy of the Demised Premises shall be apportioned between
Landlord and Tenant as of the Expiration Date, and Landlord shall receive that
portion of the award which represents reimbursements for the cost of
restoration of the Demised Premises, and (iv) if the date of taking shall occur
during the last year of the Term, and shall exceed twenty-five (25%) of the
Demised Premises, Tenant may elect to cancel this Lease by notice of election
given by Tenant to Landlord not later than sixty (60) days after the date when
title shall vest in the condemning authority. Upon the giving of such notice,
this Lease shall terminate on the thirtieth (30th) day following the date of
such notice, and the Base Rent and Additional Rent shall be apportioned as of
such termination date, with Landlord, and not Tenant, to receive the portion of
the award which represents reimbursement for the cost of restoration of the
Demised Premises and the portion of the award representing compensation for the
use and occupancy of the Demised Premises for the time subsequent to the
cancellation date.
23. Assignment and Subletting. Tenant may not assign or sublease any
portion of the Demised Premises to any other party for the remainder of the
Term, without the prior written consent of the Landlord. Any assignment,
sublease, sale or other transfer, whether voluntary or involuntary, by
operation of law
22
or otherwise (including, without limitation, by consolidation, merger or
reorganization), of a majority of the voting stock of Tenant, if Tenant is a
corporation, or a majority of the partnership interests in Tenant, if Tenant is
a partnership, shall be an assignment for purposes of this Paragraph 23 whether
such transfer is accomplished in one (1) transaction or a series of
transactions.
24. Environmental Laws.
(a) Tenant agrees to comply with all applicable environmental laws,
rules and regulations, whether federal, state or local.
(b) Tenant shall not generate, store, manufacture, refine, transport,
treat, dispose of, or otherwise permit to be present on or about the Demised
Premises, any Hazardous Substances with the exception of de minimus quantities
of Hazardous Substances commonly used in the cleaning and maintenance of
general business offices in quantities appropriate to such use, in accordance
with industry standards and in compliance with all applicable environmental
laws, rules and regulations. As used herein, "Hazardous Substance" shall be
defined as any "hazardous chemical", "hazardous substance", "hazardous waste",
or similar term as defined in the Comprehensive Environmental Responsibility
Compensation and Liability Act, as amended (42 U.S.C. 9601, et seq.) or in any
other present or future applicable federal, state or local law, dealing with
environmental protection.
(c) Tenant agrees to indemnify and hold harmless Landlord and each
mortgagee of the Demised Premises from and against any and all liabilities,
damages, claims, losses, judgments, causes of action, costs and expenses
(including the reasonable fees and expenses of counsel) which may be incurred
by Landlord or any such mortgagee or threatened against the Landlord or such
mortgagee, relating to or arising out of any breach by Tenant of this Paragraph
24, which indemnification shall survive the expiration or sooner termination of
this lease.
25. Parties Bound. The covenants, agreements, terms, provisions and
conditions of this Lease shall bind and benefit the respective successors,
assigns and legal representatives of the parties hereto with the same effect as
if mentioned in each instance.
26. Miscellaneous.
(a) This Lease, together with the Exhibits attached hereto, contains
the entire contract between the parties concerning the subject matter hereof.
No representative, agent or employee of Landlord has been authorized to make
any representations or promises with reference to the leasing of the Demised
Premises or to vary, alter or modify the terms hereof, except as stated herein.
No additions, changes or modifications hereof, shall be binding unless reduced
to writing and signed by Landlord and Tenant.
(b) If any clause or provision herein contained be adjudged to be
invalid or unenforceable by a court of competent jurisdiction or by operation
of any applicable law, it shall not affect the validity of any other clause or
provision herein but such other clauses or provisions shall remain in full
force and effect.
(c) The paragraph headings in this Lease are for convenience only and
are not to be considered in construing the same.
(d) This Lease shall be governed by and construed
23
in accordance with the laws of the State of Virginia. Each party waives trial
by jury in any action or proceeding arising out of this Lease.
(e) Tenant shall not consent to or permit the imposition of a
construction lien against the Demised Premises, the Building or the Land. If
any construction lien is filed against the Demised Premises, the Building or
the Land as a result of any additions, alterations, repairs, installations,
improvements or any other work or act of Tenant, Tenant shall discharge or bond
same within thirty (30) days from the date of notice of the filing of the lien.
If Tenant shall fall to discharge or bond the lien within such thirty (30) day
period, Landlord may bond or satisfy such lien for the account of Tenant
without inquiring into the validity of the lien or claim and Tenant shall
reimburse Landlord upon demand.
(f) Tenant represents that the undersigned officer(s) have been duly
authorized to enter into this Lease and that the execution and consummation of
this Lease by Tenant does not and shall not violate any provision of any
by-laws, certificate of incorporation, agreement, order, judgment, governmental
regulation or any other obligations to which Tenant is a party or is subject.
Upon execution hereof, Tenant shall deliver a Secretary's certificate
evidencing its authority to execute this Lease. Landlord represents that the
undersigned officer(s) of Landlord have been duly authorized to enter into this
Lease on behalf of Landlord and that the execution and consummation of this
Lease by Landlord does not and shall not violate any provision of any by-laws,
certificate of incorporation, agreement, order, judgment, governmental
regulation or any other obligations to which Landlord is a party or is subject.
(g) This Lease may be signed in counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
27. Hold Over Tenancy. If Tenant shall hold over after the expiration
of the term of this Lease or any extensions hereof, Tenant shall be deemed to
be occupying the Demised Premises as a holdover tenant without the consent or
permission of Landlord. Tenant acknowledges that holding over beyond the term
of this Lease may cause Landlord damages that are impossible to estimate or
quantify for purposes of this Lease. Therefore, during such tenancy, Landlord
and Tenant agree that Tenant shall pay to Landlord two hundred percent (200%)
of the Base Rent in effect on the Expiration Date plus all other sums due
hereunder, making such payment in accordance with this Lease and Virginia law.
Tenant shall be otherwise bound by all of the terms, covenants and conditions
contained in this Lease.
24
IN WITNESS WHEREOF Landlord and Tenant have caused this Lease to be
executed as of the date first above written.
WITNESS: WIZCOM INTERNATIONAL, LTD.
____________________ By:_____________________________
Name:
Title:
ATTEST:
AVIS RENT A CAR SYSTEM, INC.
____________________ By:_____________________________
Name:
Title:
25
EXHIBIT A
Description of Demised Premises
26
EXHIBIT B
Description of Property
27
EXHIBIT C
Tenant's Exclusive Parking Spaces
28
EXHIBIT D
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice
shall be installed or displayed on any part of the exterior
or interior Common Areas of the Building without the prior
written consent of Landlord, which consent Landlord may
withhold using its sole discretion. Landlord shall have the
right to remove, at Tenant's expense and without notice, any
sign installed or displayed in violation of this rule. All
approved signs or lettering on doors and walls shall be
printed, painted, affixed or inscribed at the expense of
Tenant by a person chosen by Landlord.
2. No awning shall be permitted on any part of the Demised Premises.
Tenant shall not place anything against or near glass partitions or
doors or windows which may appear unsightly from outside the Demised
Premises.
3. Landlord shall retain the right to control and prevent
access to the Building of all persons whose presence in the
judgment of Landlord would be prejudicial to the safety,
character, reputation and interests of the Building and its
tenants; provided that nothing herein contained shall be
construed to prevent such access to persons with whom any
tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal
activities. No tenant and no employee or invites of any
tenant shall go upon the roof of the Building.
4. All cleaning and janitorial services for the Building and
the Demised Premises shall be provided exclusively through
Landlord and, except with the written consent of Landlord,
no person or persons other than those approved by Landlord
shall be employed by Tenant or permitted to enter the
Building for the purpose of cleaning the same. Tenant shall
not cause any unnecessary labor by carelessness or
indifference to the good order and cleanliness of the
Demised Premises.
5. Landlord will furnish Tenant, free of charge, a reasonable
number of access cards to the Building and the Demised
Premises. Landlord may charge a reasonable amount for any
additional cards requested by Tenant. Tenant shall not
alter any lock or install a new additional lock or bolt on
any door of its Demised Premises. Tenant, upon the
termination of its tenancy, shall deliver to Landlord any
cards which have been furnished to Tenant, and in the event
of loss of any cards so furnished, shall pay Landlord -
therefor.
6. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, any comply with, Landlord's
instructions in their installation.
7. Any freight elevator shall be available for use by all
tenants in the Building, subject to such reasonable
scheduling as Landlord, in its discretion, shall deem
appropriate. No equipment, materials, furniture, packages,
supplies, merchandise or other property will be received in
the Building or carried in the elevators except between such
hours and in such elevators as may be designated by
Landlord.
8. Tenant shall not place a load down upon any floor of the Demised
Premises which exceeds the load per square foot which such floor was
designed to carry and which is allowed by law. Landlord shall have the
right to prescribe the weight, size and position of all equipment,
materials,
29
furniture or other property brought into the Building. Heavy objects
shall, if considered necessary by Landlord, stand on such platforms as
determined by Landlord to be necessary to properly distribute the
belonging to Tenant which cause noise or vibration that may be
transmitted to the structure of the Building or to any tenants in the
Building shall be placed and maintained by Tenant, at Tenant's
expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration. The persons employed to move such
equipment in or out of the Building must be acceptable to Landlord.
Landlord shall not be responsible for loss of, or damage to, any such
equipment or other property from any cause, and all damage done to the
Building by maintaining or moving such equipment or other property
shall be repaired at the expense of Tenant.
9. Tenant shall not use or keep in the Demised Premises any
kerosene, gasoline or inflammable or combustible fluid or
material other than those limited quantities necessary for
the operation or maintenance of office equipment. Tenant
shall not use or permit to be used in the Demised Premises
any foul or noxious gas or substance, or permit or allow the
Demised Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of
the Building by reason of noise, odors or vibrations, nor
shall Tenant bring into or keep in or about the Demised
Premises any birds or animals.
10. Tenant shall not use any method of heating or
airconditioning other than that supplied by Landlord.
11. Tenant shall cooperate fully with Landlord to assure the
most effective operation of the Building's heating and
airconditioning and to comply with any governmental
energysaving rules, laws or regulations of which Tenant has
actual notice, and shall refrain from attempting to adjust
controls other than room thermostats installed for Tenant's
use. Tenant shall keep corridor doors closed and shall
close window coverings at the end of each business day.
12. Landlord reserves the right, exercisable without notice and
without liability to Tenant, to change the name and street
address of the Building.
13. Landlord reserves the right to exclude from the Building,
between the hours of 6 p.m. and 8 a.m. the following day,
or such other hours as may be established from time to time
by Landlord, and on Sundays and legal holidays, any person
unless that person is known to the person or employee in
charge of the Building and has a pass or is properly
identified. Tenant shall be responsible for all persons for
whom it requests passes and shall be liable to Landlord for
all acts of such persons. Landlord shall not be liable for
damages for any error in regard to the admission to or
exclusion from the Building of any person. Landlord
reserves the right to prevent access to the Building In case
of invasion, mob, riot, public excitement or other commotion
by closing the doors or by other appropriate action.
14. Tenant shall close and lock the doors of the Demised Premises and
entirely shut off all water faucets or other water apparatus and
electricity, gas or air outlets before Tenant and its employees leave
the Demised Premises. Tenant shall be responsible for any damage or
injuries sustained by other tenants or occupants of the Building or by
Landlord for noncompliance with this rule.
15. Tenant shall not obtain for use on the Demised Premises ice,
drinking water, food, beverage, towel or other similar
services, or accept barbering or bootblacking services upon
30
the Demised Premises, except at such hours and under such regulations
as may be fixed by Landlord.
16. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown into
same. The expense of any breakage, stoppage or damage resulting from
the violation of this rule shall be borne by the tenant who, or whose
employees or invitees shall have, caused it.
17. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or
merchandise to the general public in or on the Demised Premises.
Tenant shall not make any room-to-room solicitation of business from
other tenants in the Building.
18. Tenant shall not install any radio or television antenna, loudspeaker
or other device on the roof or exterior walls of the Building. Tenant
shall not interfere with radio or television broadcasting or reception
from or in the Building or elsewhere.
19. Tenant shall not xxxx, drive nails, screw or drill into the
partitions, woodwork or plaster or in way deface the Demised
Premises or any part thereof. Landlord reserves the right
to direct electricians as to where and how telephone and
telegraph wires are to be introduced to the Demised
Premises. Tenant shall not cut or bore holes for wires.
Tenant shall not affix any floor covering to the floor of
the Demised Premises in any manner except as approved by
Landlord. Tenant shall repair any damage resulting from
noncompliance with this rule.
20. Tenant shall not install, maintain or operate upon the Demised
Premises any vending machine without the written consent of Landlord,
which Landlord shall not unreasonably withhold, condition, or delay.
21. Canvassing, soliciting and distribution of handbills or any other
written material, and peddling in the Building are prohibited, and
each tenant shall cooperate to prevent same.
22. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the
influence of liquor or drugs or who is in violation of any of the
Rules and Regulations of the Building.
23. Tenant shall store all of its trash and garbage within the
Demised Premises. Tenant shall not place in any trash box
or receptacle any material which cannot be disposed of in
the ordinary an customary manner of trash and garbage
disposal or which does not originate from materials utilized
by Tenant at the Demised Premises. All garbage and refuse
disposal shall be made in accordance with directions issued
from time to time by Landlord.
24. The Demised Premises shall not be used for the storage of
merchandise held for sale to the general public, or for
lodging or for manufacturing of any kind, nor shall the
Demised premises be used for any improper, immoral or
objectionable purpose. No cooking shall be done or
permitted by any tenant on the Demised Premises, except that
use by Tenant of Underwriters' Laboratory-approved equipment
for brewing coffee, tea, hot chocolate and similar beverages
shall be permitted, provided that such equipment and use is
in accordance with all applicable federal, state, county and
city laws, codes, ordinances, rules and regulations.
31
25. Tenant shall not use in any space or in the public halls of the
Building any hand trucks except those equipped with rubber tires and
side guards or such other material-handling equipment as Landlord may
approve. Tenant shall not bring any other vehicles of any kind into
the Building.
26. Without the written consent of Landlord, which Landlord shall not
unreasonably withhold, condition, or delay, Tenant shall not use the
name of the Building in connection with or in promoting or advertising
the business of Tenant except as Tenant's address.
27. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by
Landlord or any governmental agency.
28. Tenant assumes any and all responsibility for protecting the
Demised Premises from theft, robbery and pilferage.
29. The requirements of Tenant will be attended to only upon
written application to the office of the Building Manager by
an authorized individual.
30. Tenant shall not park its vehicles in any parking areas designated by
Landlord as areas for parking by visitors to the Building. Tenant
shall not leave vehicles in the Building parking areas overnight.
31. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other tenant, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations
in favor of Tenant or any other tenant, nor prevent Landlord from
thereafter enforcing any such Rules and Regulations against any or all
of the tenants of the Building.
32. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the
terms, covenants, agreements and conditions of any lease of premises
in the Building. In the event of conflict between the provisions
contained in this Lease and these Rules and Regulations the provisions
of this lease shall prevail.
33. Landlord reserves the right to make such other and reasonable Rules
and Regulations as, in its judgment, may from time to time be needed
for safety and security, for care and cleanliness of the Building and
the complex and for the preservation of good order therein. Tenant
agrees to abide by all such Rules and Regulations hereinabove stated
and any additional rules and regulations which are adopted.
34. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients,
customers, invitees and guests.
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EXHIBIT E
HVAC OPERATING SPECIFICATIONS
The design criteria for the HVAC system are as follows:
1. Outside design conditions:
Summer: 91 degrees dry bulb/76 degrees wet bulb
Winter: 14 degrees dry bulb
2. Inside design conditions:
Summer: 75 degrees dry bulb
Winter: 70 degrees dry bulb
3. Interior heat gains
Lights: 2.5 xxxxx/sq. ft.
Density of people: 1 per 200 sq. ft.
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EXHIBIT F
CLEANING SERVICES
1. General Cleaning:
a. Empty and clean all waste receptacles,
removing waste to a designated central
location for disposal. Landlord is to
provide for disposal of waste.
b. Empty and clean all ash trays and
receptacles.
c. Remove all fingerprints, smudges and other
marks from metal partitions, doors and other
surfaces.
d. With respect to a kitchen area (if applicable), rinse out
coffee pots, turn off burners to coffee pots, spot clean
walls for coffee spillage, clean sink, and clean tables and
chairs in such area.
Weekly
e. Hand dust and clean all office furniture that has been
cleared of papers, boxes, and/or personal items, ledges,
chair rails, baseboards and window xxxxx.
2. Floors
Group A - Granite, ceramic tile, marble, terrazzo
Group B - Linotile, asphalt, koroseal, plastic
vinyl, wood, rubber, or other composition
floors and base.
Nightly
a. All floors in Group A to be swept, wet mopped
and rinsed.
b. All floors in Group s to be dry mopped.
Weekly
c. All floors in Group B to be damp mopped.
Every six (6) months
d. All floors to be scrubbed and buffed.
3. Vacuuming
Nightly
a. Vacuum or carpet sweep all rugs and carpeted
areas.
Monthly
b. Brush or dust by hand carpet edges
inaccessible to high pressure vacuum
attachments.
4. High Dusting
Every six (6) months
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a. Dust all clothes closet shelving, pictures,
charts, graphs, etc.
b. Dust clean all vertical surfaces such as
walls, partitions, door bucks and other
surfaces.
c. Dust all venetian blinds.
Special service
Records and General Storage Area
Floors are to be broom cleaned weekly. Files and exposed open
shelves dusted once every three (3) months.
6. Other Services
a. Landlord shall supply all soap, towels, and toilet tissue in
both men's and women's rooms and sanitary napkins in coin
dispensers in the women's rooms.
b. Landlord shall supply all coin operated
dispensers and shall be responsible for the
servicing of same and for the collection of
money from the machine.
c. During the term of this Lease the dispenser price for
sanitary napkins shall not exceed a price equal to 150` of
the wholesale price paid by Landlord.
7. Carpeting
In addition to the aforementioned nightly and weekly
vacuuming, Landlord shall do the following:
Weekly
All carpeting is to be spot cleaned removing all stains,
smudges, and unsightly appearances.
8. Glass
Monthly
a. Clean all partitions and furniture
glass.
Annually
b. clean all perimeter windows, both
inside and out.
9. Kitchen Areas
Nightly
a. Clean all tables, chairs, counters
and sinks.
b. Spot cleaning of walls.
c. Cleaning of coffee pots.
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10. General
a. All lights are to be extinguished
and the doors as specified by
Tenant are to be locked after
cleaning is completed.
b. All personnel are to be uniformed
and clean in appearance during
business hours.
c. Cleaning of all private bathrooms
shall be subject to additional
charges shall be determined on a
case-by-case basis.
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EXHIBIT G
Schedule of Charges for Overtime Services and Utilities
37
EXHIBIT H
Service Contracts
38
EXHIBIT I
Initial Building Square Footage
and Parking Space Percentage Allocations
A. Building Square Footage Percentage Allocations
Landlord or Other Tenants
Tenant (includes Mailroom and Print
Shop)
Common Areas (other than Mailroom
and Print Shop)
Unoccupied
TOTAL BUILDING SQUARE FOOTAGE 157,584
Initial Tenant's Proportionate Share
B. Parking Space Percentage Allocations
Exclusively Landlord or Other
Subtenants
Exclusively Tenant
TOTAL PARKING SPACES 820
Initial Tenant's Proportionate Share
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