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Exhibit 10.1
AGREEMENT OF LEASE
OFFICE BUILDING
THIS AGREEMENT OF LEASE, made as of the 14th day of June, 1994, by and between
WHT REAL ESTATE LIMITED PARTNERSHIP, a Delaware Limited Partnership (hereinafter
called "Landlord"), and SOFTWORKS, INC., incorporated in the State of Maryland
(hereinafter called "Tenant").
WITNESSETH:
1. Basic Terms.
(a) Address of Landlord: WHT Real Estate Limited Partnership
c/o WHT Investors, Inc., general partner
Xxxxxxxx X. Xxxxxx
Assistant Vice President
000 Xxxx Xxx Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxx, Xxxxx 00000
or such other address as may from time to time be designated by
Landlord in writing.
(b) Address of Tenant: Softworks, Inc.
0000 Xxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx
or such other address as may from time to time be designated by
Landlord in writing.
(c) Premises: Suite No. 300 and 400 located on the entire third (3rd)
and fourth (4th) floors consisting of approximately 24,786 rentable
square feet of area in the Building as shown on Exhibit "A" attached
hereto.
(d) Building: The Building in which the Premises are located, the common
address of which is 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000. The legal description of the parcel of land on which the
Building is situated is attached hereto as Exhibit "B".
(e) Property: The Building, the parcel of land upon which the Building
is situated and any other improvements thereon.
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(f) Guarantor(s): Not applicable.
(g) Lease Term: This Lease shall be in full force and effect from the
date it has been executed by both Landlord and Tenant. Subject to
adjustment as provided in Paragraph 5 hereof, the term of this Lease
shall be for a period seven (7) years commencing on September 1,
1994 (the "Commencement Date"), and ending on August 31, 2001 (the
"Expiration Date"), unless this Lease shall be sooner terminated as
set forth herein.
(h) Rent: All sums, moneys, payments, costs and expenses required to be
paid by Tenant to Landlord pursuant to this Lease.
(i) Minimum Annual Rent: $297,432.00; See Addendum to Agreement of
Lease, Paragraph 1(i).
(j) Monthly Rent Installment: $24,786.00; See Addendum to Agreement of
Lease, Paragraph 1(j).
(k) Base Amount: Base Calendar Year 1994, See Addendum to Agreement of
Lease, Paragraph 1(k).
(l) Tenant's Share of Annual Operating Costs: 26.5%; See Addendum to
Agreement of Lease, Paragraph 1(k).
(m) Security Deposit: $24,786.00; See Addendum to Agreement of Lease,
Paragraph 4.
(n) Permitted Uses: General office.
(o) Broker(s): The Xxxxx Xxxxxxx Company and Barnes, Morris, Xxxxxx &
Xxxxxx, Inc.
(p) Tenant Improvement Plans Due: See Exhibit C.
2. Effect of Reference to Basic Terms. Each reference in this Lease to any of
the Basic Terms contained in Paragraph 1 shall be construed to incorporate
into such reference all of the definitions set forth in Paragraph 1.
3. Lease of Premises. Landlord, in consideration of the Rent to be paid and
the covenants and agreements to be performed by Tenant, does hereby lease
unto Tenant the Premises, as designated in Item (c) of Basic Terms,
constructed in accordance with the lease plans and specifications showing
interior improvements to be constructed by Tenant as set forth on Exhibit
"C" attached hereto, together with the non-exclusive right and easement to
use the parking areas and other common facilities in or on the Building
and the Property (including without limitation the driveways, sidewalks,
loading and parking areas, lobbies, and hallways) which may from time to
time be furnished by Landlord in
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common with Landlord and the tenants and occupants (their agents,
employees, customers and invitees) of the Building. Tenant agrees that
Tenant's consent shall not be required for any additions, reductions, or
modifications of such common area facilities including the construction of
free-standing buildings on any portions of the common areas. Any
additions, reductions, or modifications of such common area facilities
and/or free standing buildings shall be done in good and workmanlike
manner by Landlord or Landlord's contractors and shall comply at the time
of completion with all applicable laws, ordinances, regulations and orders
of federal, state, county or other governmental authorities having
jurisdiction thereof. Tenant acknowledges and agrees that Landlord shall
have the right to make reasonable rules and regulations governing the
location and use of all parking areas and common facilities, and Tenant
shall be governed thereby.
4. Completion by Tenant. The Premises shall be completed by Tenant in
accordance with the plans and specifications attached hereto or to be
attached hereto as Exhibit "C" (hereinafter called the "Tenant Improvement
Work Agreement"). If the Tenant Improvement Plans have not been attached
upon execution hereof, Tenant shall submit same no later than the date
specified in Item (p) of Basic Terms. All necessary construction shall be
commenced promptly and shall, subject to Paragraph 5 hereof, be
substantially completed ready for use and occupancy by Tenant on the
Commencement Date set forth in Item (g) of Basic Terms; provided, however,
that the time for substantial completion of the Premises shall be extended
for additional periods of time equal to the time lost by Tenant or
Tenant's contractors, subcontractors or suppliers (such additional periods
not to exceed, in the aggregate, sixty (60) days) due to strikes or other
labor troubles, governmental restrictions and limitations, scarcity,
unavailability or delays in obtaining fuel, labor or materials, war or
other national emergency, accidents, floods, defective materials, fire
damage or other casualties, weather conditions, or any cause similar or
dissimilar to the foregoing that is beyond the control of Tenant. If
Tenant is unable to substantially complete all necessary construction or
deliver possession of the Premises to Tenant on the Commencement Date
because Tenant has failed to deliver its Tenant Improvement Plans by the
date specified in Item (p) of Basic Terms, or because Tenant has requested
changes in the Tenant Improvement Plans submitted to Landlord, or because
Tenant has requested changes in the Tenant Improvement Plans submitted to
Landlord, or because of other causes attributable to Tenant, then the
Lease Term shall commence, and Tenant shall pay all Rent due hereunder, as
of the Commencement Date designated in Item (g) of Basic Terms, even
though Tenant has not taken possession of the Premises by such date. All
construction shall be done in good and workmanlike manner by Tenant or
Tenant's contractors and shall comply at the time of completion with all
applicable laws, ordinances, regulations and orders of the federal, state,
county or other governmental authorities having jurisdiction thereof.
Except as may result from its enforcement of the provisions of the Tenant
Improvement Work Agreement, Landlord shall not interfere with or delay the
work to be performed hereunder by Tenant, or the contractors and workmen
engaged in the work to be performed hereunder by Tenant, and Tenant shall
have obtained furnishings or equipment. Tenant will be responsible for all
costs resulting from any work provided for on Exhibit "C", including but
not limited to architectural and engineering charges, change orders,
materials and supplying, etc.
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5. Term. The Lease Term, as designated in Item (g) of Basic Terms, shall
commence on the Commencement Date, as designated in Item (g) of Basic
Terms, Landlord anticipates the delivery of the Premises to Tenant on June
1, 1994. In the event Landlord fails to deliver the Premises because the
previous occupant of the Premises is holding over, or for any other cause
beyond Landlord's control, Landlord shall not be liable to Tenant for any
damages as a result of Landlord's delay in delivering the Premises, nor
shall any delay affect the validity of this Lease, and the Commencement
Date of this Lease shall be postponed until ninety (90) days after receipt
of written notice by Landlord of the third (3rd) floor availability for
Tenant Improvement Work. Notwithstanding the foregoing, Landlord shall
deliver the Premises not later than July 1, 1994. The Lease Term shall
commence without regard to the work that is incomplete. Unless sooner
terminated in accordance with the terms hereof, the Lease Term shall end
without the necessity for notice from either party to the other at 12:01
a.m. local time on the Expiration Date designated in Item (g) of Basic
Terms, provided however that in the event of any postponement of the
Commencement Date as provided in this Paragraph 5, the Lease Term shall
remain the same, but the Expiration Date shall be extended for the same
number of days the Commencement Date was postponed. If the permission is
given to Tenant to enter into possession of the Premises, or to occupy
premises other than the Premises, prior to the Commencement Date of the
Lease Term, Tenant covenants and agrees that such occupancy shall be
deemed to be under all the terms, conditions and provisions of this Lease.
Tenant shall complete and furnish to Landlord, on or before occupancy of
the premises, the First Amendment to Lease attached hereto as Exhibit "D",
which shall acknowledge the actual Commencement Date and Expiration Date
of the Lease.
6. Use of Premises. Tenant shall occupy the Premises throughout the Lease
Term and shall use the same for and only for the non-residential purpose
or purposes set forth in Item (n) of Basic Terms and for no other purposes
whatsoever without the written consent of Landlord, which consent shall
not be unreasonably withheld. Tenant shall not use or occupy the Premises
for any unlawful purpose or in any manner that will constitute waste,
nuisance or unreasonable annoyance to Landlord or other tenants of the
Building. Tenant shall comply with all the present and future laws,
ordinances (including zoning ordinances, and environmental and land use
requirements), regulations, and orders of the United States of America,
the Commonwealth of Virginia, the County of Fairfax, and any other public
or quasi-public authority having jurisdiction over the Premises,
concerning the use, occupancy and condition of the Premises and all
machinery, equipment and furnishings therein.
7. Rent.
(a) Minimum Annual Rent. Tenant shall pay the Minimum Annual Rent
designated in Item (i) of Basic Terms in equal monthly installments,
as designated in Item (j) of Basic Terms, in advance, on the first
day of each calendar month during the Lease Term; provided, however,
that the minimum rent for the first full months shall be paid upon
the signing of this Lease. If the Commencement Date shall fall
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on a day other than the first day of a calendar month, the rent
shall be apportioned pro rata on a per-diem basis for the period
between the Commencement Date and the first day of the following
calendar month and such apportioned sum shall be paid on the
Commencement Date. In addition, tenant shall pay Landlord without
setoff the additional rent as hereinafter set forth. Unless
otherwise specifically provided, all sums shall be paid to Landlord
at the address designated in Item (a) of Basic terms or at such
other address as Landlord shall designate in writing to Tenant.
(b) Additional Rent.
(i) Annual Operating Costs. As used herein, the term "Annual
Operating costs" shall mean the costs to Landlord of operating
and maintaining the Property during each calendar year of the
Lease Term. Such costs shall include by way of example rather
than limitation: all real estate taxes and assessments,
general or special, ordinary or extraordinary, imposed upon
the Property (including all improvements thereto), all
insurance premiums, fees, impositions, costs for repairs,
maintenance, service contracts, management fees, governmental
permits, overhead expenses, costs of furnishing water, sewer,
gas, fuel, electricity and other utility services, janitorial
service, trash removal, and the costs of any other items
attributable to operating or maintaining any or all of the
Property excluding any costs which under generally accepted
accounting principles are capital expenditures; provided,
however, that Annual Operating Costs shall also include the
annual amortization (over the anticipated useful life) of the
cost of a capital improvement, plus any interest or financing
charges thereon, falling within any of the following
categories: (i) a labor-saving or energy-saving device or
improvement which eliminates any other component of Annual
Operating Costs or which reduces any such Annual Operating
Costs from the costs that would have been incurred had such
device or improvement not been installed; (ii) an installation
or improvement required by reason of any law, ordinance or
regulation, which requirement did not exist on the date of
this Lease and is generally applicable to similar office
buildings; or (iii) an installation or improvement which
directly enhances safety of tenants in the Building generally.
If Landlord shall receive an abatement of any real estate
taxes or assessments imposed upon the Property, Landlord shall
promptly pay or credit to Tenant an amount equal to Tenant's
share of the proceeds of such abatement, after deducting
Landlord's cost in obtaining the same. If, due to a future
change in the method of taxation, any other tax, however
designated, is imposed in substitution for or in addition to
real estate taxes, then such other tax shall be included
within Annual Operating Costs. The cost of all goods,
services, labor and materials supplied or furnished by
Landlord at the written request of Tenant solely for the
benefit of Tenant and/or the Leased Premises shall not be
included within Annual Operating Costs and shall be paid by
Tenant promptly upon being billed therefor. See Addendum to
Agreement of Lease, Paragraph 3.(a).
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(ii) Base Amount. In addition to the Minimum Annual Rent and annual
adjustments thereto, Tenant shall pay annually as additional
rent the Base Amount set forth in Item (k) of Basic Terms. The
Base Amount shall be payable in equal monthly installments
concurrent with and in the same manner as Tenant's payment of
the Minimum Annual Rent and adjustments thereto. The Base
amount represents Landlord's estimate of Tenant's share of the
Annual Operating Costs for the first year of this Lease; to
the extent the Base Amount is less than Tenant's share of the
Annual Operating Costs as calculated for any given calendar
year, Landlord shall credit such excess to Tenant's account
for the following month, and in the event the Base Amount is
less than Tenant's share of the Annual Operating Costs as
calculated for any given calendar year, Tenant shall, within
ten (10) days of the certification of said Annual Operating
Costs, as provided in subparagraph (iv) below, pay to Landlord
the amount of such deficiency.
(iii) Computation of Tenant's Share of Annual Operating Costs. See
Addendum to Agreement of Lease, Paragraph 3.(b).
(iv) Payments. Tenant, promptly upon being billed therefor, shall
pay to Landlord as additional rent the amount by which
Tenant's share of the Annual Operating Costs exceeds the Base
Amount (it being the intention that by virtue of Tenant's
payment of the Base Amount and the amount set forth in this
subsection (b)(iv), Tenant will pay each year its share of the
total Annual Operating Costs). If only part of any calendar
year shall fall within the Lease Term, the amount computed as
additional rent with respect to such calendar year under the
foregoing provisions shall be prorated in proportion to the
portion of such calendar year falling within the Lease Term.
The expiration of the Lease Term prior to the end of such
calendar year shall not impair Tenant's obligation to pay such
prorated portion as aforesaid. Notwithstanding the foregoing
provisions of this Paragraph 7 to the contrary, Landlord shall
have the right, at its option, to make from time to time
during the Lease Term a reasonable estimate of the additional
rent which may become due hereunder with respect to any
calendar year, and to require Tenant to pay to Landlord, at
the time the monthly installments of Minimum Annual Rent are
payable, the amount obtained by dividing such estimate of
additional rent by the number of months remaining in such
year. Landlord shall cause the actual amount of Tenant's share
of the Annual Operating Costs to be computed and certified to
Tenant within one hundred and twenty (120) days following the
end of each calendar year (or as soon thereafter as may be
practicable), and Tenant shall within ten (10) days of receipt
of the certification thereof pay to Landlord the amount of any
deficiency or Landlord shall credit any overpayment to
Tenant's account for the following month, as the case may be.
Tenant shall have the right to inspect the books and records
used by Landlord in calculating the Annual Operating Costs
within sixty (60) days of receipt of the certification during
regular business hours after having
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given Landlord written notice at least forty-eight (48) hours
prior thereto; provided, however, that Tenant shall make all
payments of additional rent without delay, and that Tenant's
obligation to pay such additional rent shall not be contingent
on any such right.
(v) Late Payment. If Tenant shall fail to pay, when the same is
due and payable, any Minimum Annual Rent or any additional
rent, or any other charges or payments designated as Rent in
Item (i) of Basic Terms, such unpaid amounts shall bear
interest from the due date thereof to the date of payment at
the rate per annum which is two percent (2%) higher than the
"reference rate", "base rate" or "prime rate", or similar rate
announced as such by Chase Manhattan Bank, but in no event
higher than the legal limit.
8. Security Deposit. See Addendum to Agreement of Lease, Paragraph 4.
9. Insurance and Indemnification.
(a) Insurance by Landlord. Landlord shall at all times during the Lease
Term carry, at its own expense, a policy of insurance which insures
the Building, including the Premises, against loss or damage by fire
or other casualty (namely, the perils against which insurance is
afforded by a standard fire insurance policy and extended coverage
endorsement including, without limitation, rental interruption
coverage for all leased space in the Building); provided, however,
that Landlord shall not be responsible for, and shall not be
obligated to insure against, any loss of or damage to any personal
property of Tenant, or which Tenant may have in the Building or the
Premises or any trade fixtures installed by or paid for by Tenant on
the Premises or any additional improvements after the Commencement
Date which Tenant may construct on the Premises, and Landlord,
unless due to Landlord's gross negligence or willful misconduct,
shall not be liable for any loss or damage to such property,
regardless of cause. If any alterations or improvements after the
Commencement Date are made by Tenant pursuant to Paragraph 17 hereof
result in an increase of the premiums charges during the Lease Term
on the casualty insurance carried by Landlord on the Building, then
the cost of such increase in insurance premiums shall be borne by
Tenant, who shall reimburse Landlord for the same as additional rent
after being separately billed therefor. The annual cost of all such
insurance maintained by Landlord shall be considered as a part of
the annual Operating Costs of the Property. If requested in writing
by Tenant, Landlord shall promptly deliver to Tenant certified
copies or other written evidence of such policies and written
evidence that all policies are in effect.
(b) Insurance by Tenant. Tenant shall, at all times during the Lease
Term, at Tenant's cost, obtain and keep in effect the following
insurance insuring Tenant, Landlord and all mortgagees and any other
person or entity designated by Landlord as having an interest in the
Property (as their interest may appear):
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(i) Insurance upon all property situated in the Premises owned by
Tenant or for which Tenant is legally liable and on fixtures
and improvements installed in the Premises by or on behalf of
Tenant. Such polices shall be for an amount of not less than
100% of the full replacement cost with coverage against at
least fire with standard extended coverage, vandalism,
malicious mischief, sprinkler leakage and water damage. If
there is a dispute as to the replacement cost amount, the
decision of Landlord shall be conclusive.
(ii) Business interruption insurance in an amount sufficient to
reimburse Tenant for direct or indirect loss of earnings
attributable to prevention of access to the Building or
Premises as a result of such perils;
(iii) Commercial General Liability insurance including fire, legal
liability and contractual liability insurance coverage with
respect to the Building and the Premises. The coverage is to
include activities and operations conducted by Tenant and any
other person in the Premises and Tenant and any other person
performing work on behalf of Tenant and those for whom Tenant
is by law responsible in any other party of the Building. Such
insurance shall be written on a comprehensive basis with
inclusive limits of not less than $2,000,000 for each
occurrence for bodily injury and property damage or such
higher limits as Landlord, acting reasonably, may require from
time to time, provided, however, that such higher limits are
commercially reasonable. The limit of said insurance shall
not, however, limit the liability of Tenant hereunder.
Landlord shall be named on all liability policies maintained
by Tenant.
(iv) Worker's Compensation insurance for all Tenant's employees
working in the Premises in an amount sufficient to comply with
applicable laws or regulations;
(v) Any other form of insurance as Tenant, Landlord or its
mortgagee, may reasonably require from time to time. Such
insurance shall be in form, amounts and for the risks which a
prudent Tenant would insure.
All policies of insurance maintained by Tenant shall be in a form acceptable to
Landlord; issued by an insurer acceptable to Landlord, which acceptability shall
not be unreasonably withheld; and licensed to do business in the state in which
the Property is located; and require at least thirty (30) days written notice to
Landlord of termination or material alteration and waive, to the extent
available, any right of subrogation against Landlord. All policies shall provide
that the interests of Landlord, its mortgagee or those names insured designated
by Landlord shall not be invalidated because of any breach or violation of any
warranties, representations, declarations or conditions contained in the
policies. All policies must contain a severability of interest clause, a
cross-liability clause and shall be primary and shall not provide for
contribution of any other insurance available to Landlord, its mortgagee, or
those named insureds designated by Landlord. If requested by Landlord, Tenant
shall, upon the Commencement Date designated in Item (g) of Basic Terms, and
thereafter within fifteen(15) days prior to the expiration date of each such
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policy, promptly deliver to Landlord certified copies or other written evidence
of such policies and written evidence satisfactory to Landlord that all premiums
have been paid and all policies are in effect. If Tenant fails to secure or
maintain any insurance coverage required by Landlord, or should insurance
secured not be approved by Landlord and such failure or approval not be
corrected within 48 hours after written notice from Landlord, Landlord may,
without obligation, purchase such required insurance coverage at Tenant's
expense. Tenant shall promptly reimburse Landlord for any monies so expended as
additional rent.
(c) Tenant's Contractor's Insurance. Tenant shall require any contractor
of Tenant permitted to perform work in, on or about the Premises to
obtain and maintain the following insurance coverage at no expense
to Landlord:
(i) Commercial General Liability Insurance, including a Broad Form
General Liability Endorsement, in the amount of $1,000,000,
naming Landlord and Tenant as insured.
(ii) Workers Compensation Insurance for all contractor's employees
working in the premises in an amount sufficient to comply with
applicable laws or regulations.
(iii) Employers Liability Insurance in an amount not less than
$100,000.
(iv) Any other insurance as Tenant, Landlord or its mortgagee may
require from time to time.
(d) Indemnification. Tenant, at Tenant's sole cost and expense, shall
indemnify and hold harmless Landlord from all loss, claim, demand,
damage, liability or expense, including attorneys' fees, resulting
from any injury to or death of any person or any loss of or damage
to any property caused by or resulting from any act, omission or
negligence of Tenant or any officer, employee, agent, contractor,
licensee, guest, invitee or visitor of Tenant in or about the
Premises or the Building, but the foregoing provision shall not be
construed to make Tenant responsible for loss, damage, liability or
expense resulting from injuries to third parties caused by any act,
omission or negligence of Landlord or of any officer, employee,
agent, contractor, invitee, licensee or visitor of Landlord.
Landlord shall not be liable for any loss or damage to person,
property or Tenant's business sustained by Tenant, or other persons,
which may be caused by the Building or the Premises, or any
appurtenances thereto, being out of repair or by the bursting or
leakage of any water, gas, sewer or steam pipe, or by theft or by
any act of neglect of any tenant or occupant of the Building, or any
other person, unless due to Landlord's negligence or willful
misconduct.
(e) Waiver of Subrogation. Landlord and Tenant each agree that neither
Landlord nor Tenant (and their successors and assigns) will have any
claim against the other for any loss, damage or injury which is
covered by insurance carried by either party and for which recovery
from such insurer is made, notwithstanding the negligence of either
party in causing the loss. This release shall act valid only
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if the insurance policy in question expressly permits waiver of
subrogation or if the insurer agrees in writing that such waiver of
subrogation will not affect coverage under said policy. Each party
agrees to use its best efforts to obtain such an agreement from its
insurer if the policy does not expressly permit a waiver of
subrogation.
(f) Increase of Premiums. Tenant will not do anything or fail to do
anything which will cause the cost of Landlord's insurance to
increase or which will prevent Landlord from procuring policies
(including but not limited to public liability) from companies and
in a form satisfactory to Landlord. If any breach of this Paragraph
9(f) by Tenant shall cause the rate of fire or other insurance to be
increased, Tenant shall pay the amount of such increase as
additional rent promptly upon being billed therefor.
(g) Tenant's Additional Insurance. Landlord makes no representation that
the limits of liability specified to be carried by Tenant under the
terms of this Lease are adequate to protect Tenant against Tenant's
undertaking under this Paragraph 9, and in the event Tenant believes
that any such insurance coverage called for under this Lease is
insufficient, Tenant shall provide, at its own expense, such
additional insurance as Tenant deems adequate.
10. Damage by Fire or Other Casualty; Casualty Insurance.
(a) Obligation to Repair or Rebuild. If the Premises or Building shall
be damaged or destroyed by fire or other casualty, Tenant shall
promptly notify Landlord of any damage or destruction to the
Premises, and Landlord, subject to the mortgagee's consent and to
the conditions set forth in this Paragraph 10, shall repair, rebuild
or replace such damage and restore the Premises and/or the Building,
subject to subparagraph (f) below, to substantially the same
condition in which they were immediately prior to such damage or
destruction; provided, however, that Landlord shall only be
obligated to restore such damage which is covered by the fire and
other extended coverage insurance policies.
(b) Commencement and Completion of Work. The work shall be commenced
promptly and completed with due diligence, taking into account the
time required by Landlord to effect a settlement with, and procure
insurance proceeds from, the insurer and for delays beyond
Landlord's reasonable control.
(c) Application of Proceeds. The net amount of any insurance proceeds
(excluding proceeds received pursuant to the rental interruption
coverage obtained by Landlord in accordance with Paragraph 9(a)
hereof), recovered by reason of the damage or destruction of the
Building in excess of the cost of adjusting the insurance claim and
collecting the insurance proceeds (such excess amount being
hereinafter called the "net insurance proceeds") shall be applied
towards the reasonable cost of restoration. If in Landlord's sole
opinion the net insurance proceeds will not be adequate to complete
such restoration, Landlord shall have
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the right to terminate this Lease and all the unaccrued obligations
of the parties hereto by sending a written notice of such
termination to Tenant, the notice to specify a termination date no
less than ten (10) days after its transmission; provided, however,
that if the damage relates only to the Premises and occurs prior to
the last two (2) years of the Lease Term, Tenant, subject to
subparagraph (f) below, may require Landlord to withdraw the notice
of termination by agreeing to pay the cost of restoration in excess
of the net insurance proceeds and by giving Landlord adequate for
such payment prior to the termination date specified in Landlord's
notice of termination. If the net insurance proceeds are more than
adequate, the amount by which the net insurance proceeds exceed the
cost of restoration will be retained by Landlord.
(d) Tenant's Fixtures and Improvements. Landlord's obligation or
election to restore the Premises under this Paragraph 10 shall not
include the repair, restoration or replacement of the fixtures,
improvements, alterations, furniture or any other property owned,
installed, made by, or in the possession of Tenant.
(e) Abatement of Rent. Tenant will receive an abatement of its Minimum
Annual Rent and Additional Rent to the extent and during the time
the Premises are rendered untenantable due to casualty, such rent to
xxxxx in such proportion as the part of the Premises thus destroyed
or rendered untenantable bears to the total Premises while such
repairs are being made. If the Premises are so slightly damaged by
such fire or other casualty as not to be rendered untenantable,
Landlord shall make the repairs its deems necessary with reasonable
promptness and the payment of rent shall not be affected thereby.
Landlord shall reasonably judge as to whether such destruction or
damage has caused the Building or the Premises to be untenantable or
whether the same cannot be rendered tenantable within the one
hundred twenty (120) day period set forth in subparagraph (f) below.
Tenant shall, at its own cost and expense, remove such of its
furniture and furnishings and other belongings from the Premises as
Landlord shall require in order to repair and restore the Premises.
(f) Landlord's Option Not to Restore. Notwithstanding the foregoing
provisions, if there is substantial destruction of the Building, or
if, in the reasonable judgment of Landlord, such damage cannot be
repaired and the Premises cannot be made tenantable within one
hundred twenty (120) days of such damage, Landlord shall have the
option not to restore, and may elect to terminate this Lease by
sending notice as referred to in subparagraph (c) above, without
giving Tenant the right to cause the notice of termination to be
withdrawn. Landlord shall notify Tenant in writing within forty-five
(45) days after the date of such damage or destruction of Landlord's
estimate of the period of time required to repair and restore the
Premises to tenantable condition. If such period of time exceeds one
hundred and fifth (150) days, Tenant shall also have the right to
terminate this Lease by written notification to Landlord of such
termination within fifteen (15) days of delivery of Landlord's
notice to Tenant.
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11. Condemnation.
(a) Termination. (i) If all of the Premises are covered by a
condemnation; or (ii) if any part of the Premises is covered by a
condemnation and the remainder thereof is insufficient for the
reasonable operation therein of Tenant's business; or, (iii) if any
of the Property is covered by a condemnation and, if Landlord's
reasonable opinion, it would be impractical or the condemnation
proceeds are insufficient to restore the remainder of the Property;
then, in any such event, this Lease shall terminate and all
obligations hereunder shall cease as of the date upon which
possession is taken by the condemnor and the Rent herein reserved
shall be apportioned and paid in full by Tenant to Landlord to that
date and all Rent prepaid for periods beyond that date shall
forthwith be repaid by Landlord to Tenant.
(b) Partial Condemnation. If there is a partial condemnation and this
Lease has not been terminated pursuant to subparagraph (a) hereof,
Landlord shall restore the Building and the improvements which are
part of the Building to a condition and size as nearly comparable as
reasonably possible to the condition and size thereof immediately
prior to the date upon which possession shall have been taken by the
condemnor. If the condemnation proceeds are more than adequate to
cover the cost of restoration and Landlord's expenses in collecting
the condemnation proceeds, any excess proceeds shall be retained by
Landlord. If there is a partial condemnation and this Lease has not
been terminated by the date upon which the condemnor shall have
obtained possession, the obligations of Landlord and Tenant under
this Lease shall be unaffected by such condemnation except that
there shall be an equitable abatement of the Minimum Annual Rent in
direct proportion to the amount of the Premises so taken.
(c) Award. In the event of a condemnation affecting Tenant, Tenant shall
have the right to make a separate claim against the condemnor for
removal and relocation costs and expenses and the taking of Tenant's
tangible property; provided and to the extent, however, that such
claims or payments do not reduce the sums otherwise payable by the
condemnor to Landlord. Except as aforesaid, Tenant hereby waives all
claims against Landlord and against the condemnor, and Tenant hereby
assigns to Landlord all claims against the condemnor including,
without limitation, all claims for leasehold damages and diminution
in value of Tenant's leasehold interest.
(d) Temporary Taking. If the condemnor should take only the right to
possession of the Premises for a fixed period of time or for the
duration of an emergency or other temporary condition, then,
notwithstanding anything hereinabove provided, this Lease shall
continue to full force and effect without any abatement of Rent, but
the amounts payable by the condemnor with respect to any period of
time prior to the expiration or sooner termination of this Lease
shall be paid by the condemnor to Landlord and the condemnor shall
be considered a subtenant of Tenant. Landlord shall apply the amount
received from the condemnor applicable to the Rent due hereunder net
of costs to Landlord for the collection thereof, or as
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much thereof as may be necessary for the purpose, toward the amount
due from Tenant as Rent for that period; and Tenant shall pay to
Landlord any deficiency between the amount thus paid by the
condemnor and the amount of the Rent, or Landlord shall credit to
future rental payments due from Tenant any excess of the amount of
the award over the amount of the Rent.
12. Non-Abatement of Rent. Except as otherwise expressly provided as to damage
by fire or by any other casualty in subparagraph (e) of Paragraph 10 and
as to condemnation in subparagraphs (a) and (b) of Paragraph 11, and as
otherwise provided under this Lease, there shall be no abatement or
reduction of the minimum rent, additional rent or other sums payable
hereunder for any cause whatsoever, and this Lease shall not terminate,
and Tenant shall not be entitled to surrender or abandon the Premises.
13. Repairs and Maintenance.
(a) Tenant's Obligations. Tenant, at its sole cost and expense and
throughout the Lease Term and any renewals or extensions thereof,
shall keep and maintain the Premises in a neat, safe and orderly
condition and shall make all necessary non-structural repairs
thereto. Tenant shall not use or permit the use of any portion of
the common areas for other than their intended use. Upon the
expiration of the Lease Term, Tenant shall yield and deliver up the
Premises in like condition as when taken, reasonable use and wear
thereof and repairs required to be made by Landlord excepted.
Anything hereinabove to the contrary notwithstanding, from and after
the date Tenant has taken occupancy of the Premises, any repairs,
additions or alterations to the Premises which are required by OSHA
shall be promptly made by Tenant, at its sole expense, if or to the
extent that such repairs, additions or alterations are required only
with respect to the Premises, and any such repairs, additions and/or
alterations made by Tenant shall be subject to the provisions of
this Paragraph 13 and Paragraph 17 hereof.
(b) Landlord's Obligations. Landlord, subject to subparagraph (c) below,
throughout the Lease Term and any renewals or extensions thereof,
shall make all necessary structural repairs to the Building and any
necessary repairs to the mechanical, HVAC, electrical and plumbing
systems in or servicing the Premises, excluding repairs to any such
systems or components thereof which are not of, the same type and
nature as those provided by Landlord as part of the Building
standard improvements; provided, however, that Landlord shall have
no responsibility to make any repairs unless and until Landlord
receives written notice of the need for such repair. Except as
otherwise provided herein, the cost of all such repairs shall be
borne by Landlord and included as part of Annual Operating Expenses.
Tenant shall within a reasonable time report in writing to Landlord
any defective condition known to Tenant in the demised premises
which Landlord is required to repair. Failure to so report shall
make Tenant responsible for the additional damages resulting from
such failure to so report. Landlord shall not be liable for any
failure to make repairs or to perform any maintenance or to initiate
the
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process to make such repairs and maintenance unless such failure
shall persist for an unreasonable time after written notice of the
need for such repairs or maintenance is received by Landlord from
Tenant. Landlord shall keep repaired and maintain all common areas
of the Property and any sidewalks, parking areas, curbs and access
ways adjoining the Property in a clean and orderly condition.
(c) Interference with Use of Premises; No Release from Obligations. In
the event that Landlord shall deem it necessary, or be required by
any governmental authority, to repair, alter, remove, reconstruct or
improve any part of the Premises or the Building (unless the same
result from Tenant's act, neglect, default or mode of operation, in
which event Tenant shall make all such repairs, alterations and
improvements), then the same shall be made by Landlord with best
efforts and should the making of such repairs, alterations or
improvements cause any interference with Tenant's use of the
Premises, such interference shall not relieve Tenant from the
performance of its obligations hereunder, nor shall such
interference be deemed an actual or constructive eviction or partial
eviction or result in an abatement of Rent, except as otherwise
provided in Paragraph 14(d) below. Notwithstanding the foregoing,
Tenant shall, at its own cost and expense, make all repairs and
provide all maintenance in connection with any alterations,
additions or improvements made by Tenant pursuant to Paragraph 17
hereof.
14. Utilities and Services.
(a) Utilities and Services Furnished by Landlord. Provided Tenant is not
in default hereunder, Landlord agrees to furnish or cause to be
furnished to the Premises, the utilities and services described
below, subject to the conditions and in accordance with the
standards set forth in this Paragraph 14.
(i) Landlord shall provide automatic elevator facilities Monday
through Friday from 8 a.m. to 6 p.m., and on Saturday from 9
a.m. to 1 p.m. At least one elevator shall be available for
use at all other times;
(ii) Landlord shall furnish heat or air conditioning Monday through
Friday from 8 a.m. to 6 p.m. and on Saturdays from 9 a.m. to 1
p.m., when, in the judgment of Landlord, it is required for
the comfortable occupancy and use of the Premises. Upon
request, Landlord shall make available, at Tenant's expense,
after-hours heat or air conditioning. The minimum use of
after-hours heat or air conditioning and the cost thereof
shall be determined from time to time by Landlord and
confirmed in writing to Tenant;
(iii) Landlord shall furnish to the Premises, subject to
interruptions beyond Landlord's control, such electricity as
is required for the use of the office lighting and electrical
outlets 24 hours per day, 365 days per year as provided in
building standard;
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(iv) Landlord shall furnish water for drinking; cleaning and
lavatory purposes only;
(v) Landlord shall provide cleaning and janitorial services to the
Premises, as described in Exhibit "E" attached hereto and made
a part hereof.
(b) Special and Additional Usage. Landlord may impose a reasonable
charge for any utilities and services, including without limitation,
air conditioning, electricity, and water, provided by Landlord by
reason of: (i) any use of the Premises at any time other than the
hours set forth above; (ii) any use beyond what Landlord agrees
herein to furnish; or (iii) special electrical, cooling and
ventilating needs created by Tenant's telephone equipment,
computers, electronic data processing equipment and other similar
equipment or uses. Landlord, at its option, may require installation
of metering devices, at Tenant's expense, for the purpose of
metering Tenant's utility consumption.
(c) Cooperation; Payment of Charges, Approval of Special Equipment
Usage. Tenant agrees to cooperate fully at all times with Landlord
and to abide by all regulations and requirements which Landlord may
prescribe for the use of the above utilities and services. Tenant
agrees to pay any charge imposed by Landlord pursuant to Paragraph
(b) above and any failure to pay any excess costs as described above
shall constitute a breach of the obligation to pay Rent under this
Lease and shall entitle Landlord to the rights herein granted for
such breach. Tenant's use of electricity shall at no time exceed the
capacity of the service to the Premises or the electrical risers or
wiring installation. Tenant shall not install or use or permit the
installation or use of any computer or electronic data processing
equipment in the Premises, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld.
(d) Failure, Stoppage or Interruption of Service; No Release from
Obligations. Landlord shall not be liable for, and Tenant shall not
be entitled to any abatement or reduction of Rent by reason of,
Landlord's failure to furnish any of the foregoing services when
such failure is caused by accident, breakage, repairs, riots,
strikes, lockouts or other labor disturbance or labor dispute of any
character, governmental regulation, moratorium or other governmental
action, inability by exercise of reasonable diligence to obtain
electricity, water or fuel, or by any other cause beyond Landlord's
immediate control or for stoppage or interruptions of any such
services for the purpose of making necessary repairs or
improvements. Failure, stoppage or interruption of any such service
shall not be construed as an actual or constructive eviction or as a
partial eviction against Tenant, or release Tenant from the prompt
and punctual performance by Tenant of the covenants contained
herein. However, if there is an interruption in utilities or
services, beyond Landlord's control, and said interruption continues
for five (5) consecutive business days, Tenant will be entitled to
rent abatement of the period such service is not provided to the
extent that such interruption interferes with Tenant's use of the
Premises. If interruption continues for sixty (60) days, Tenant
shall have the option, unless Landlord is demonstrating best efforts
to cure any of
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the above, to terminate this Lease. Notwithstanding anything
hereinabove to the contrary, Landlord reserves the right from time
to time to make reasonable and nondiscriminatory modifications to
the above standards for utilities and services.
(e) Limitation and Unavailability of Service. Anything hereinabove to
the contrary notwithstanding, Landlord and Tenant agree that
Landlord's obligation to furnish heat, electricity, air conditioning
and/or water to the Premises shall be subject to and limited by all
laws, rules, and regulations of any governmental authority affecting
the supply, distribution, availability, conservation or consumption
of energy, including, but not limited to, heat, electricity, gas,
oil and/or water. Landlord shall abide by all such governmental
laws, rules and regulations and, in so doing, Landlord shall not be
in default in any manner whatsoever under the terms of this Lease,
and Landlord's compliance therewith shall not affect in any manner
whatsoever Tenant's obligation to pay the full Rent set forth in
this Lease.
(f) Lighting Fixtures and Lamps. Landlord shall replace building
standard fluorescent tubes throughout the initial Lease term when
necessary.
(g) Load Bearing Capacity. Tenant shall not place a loan upon any floor
of the Premises which exceeds the load per square foot which such
floor was designed to carry and which is allowed by law. Landlord
reserves the right to prescribe in a reasonable manner the weight
and position of all safes and heavy installations which Tenant
wishes to place in the Premises so as to properly distribute the
weight thereof. Any cost of structural analysis shall be borne by
Tenant.
(h) Unreasonable Noise or Vibration. Business machines and mechanical
equipment belonging to Tenant which cause unreasonable noise or
vibration that may be transmitted to the structure of the Building
or to any lease space to such a degree as to be objectionable to
Landlord 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 such unreasonable noise or
vibration.
15. Governmental Regulations. Tenant shall not violate any laws, ordinances,
notices, orders, rules, regulations or requirements, including without
limitation those pertaining to environmental matters, of any federal,
state or municipal government or any department, commission, board or
office thereof, or of the National Board of Fire Underwriters or any other
body exercising similar functions, relating to the Premises or to the use
or manner of use of the Property, nor shall Tenant perform any acts or
carry on any practices which may injure the Property or the Premises or be
a nuisance, disturbance or menace to any other tenants of the Building.
Upon breach of this Xxxxxxxxx 00, Xxxxxxxx shall have the right to
terminate this Lease forthwith and to re-enter and repossess the Premises,
but Landlord's right to damages shall survive.
16. Directory; Signs. Landlord will place Tenant's name and suite number on
the Building standard directory. Except for signs which are located wholly
within the interior of the Premises and which are not visible from the
exterior of the Premises, and except for signs
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on office doors with size, design, lettering and text approved by
Landlord, which approval shall not be unreasonably withheld, no signs
shall be placed, erected, maintained or painted by Tenant at any place
upon the Premises or the Property.
17. Alterations and Additions. After Tenant's initial build-out, Tenant shall
not do any painting or decorating, erect any partitions, or make any
alterations, additions, changes or repairs (hereinafter referred to as
"Alterations and Additions") to the Premises without obtaining in each
instance Landlord's prior written consent which approval shall not be
unreasonably withheld. All Alterations and Additions shall be performed by
Landlord or Landlord's contractors, or shall be performed under Landlord's
regulation. In the event Alterations and Additions are not performed by
Landlord or Landlord's contractors, Tenant shall pay to Landlord a
reasonable fee, for its regulation of such Alterations and Additions. All
Alterations and Additions shall remain upon and be surrendered with the
Premises unless, prior to or upon the expiration or termination of this
Lease, Landlord shall give written notice to Tenant to remove the same, in
which event Tenant will remove such Alterations and Additions within ten
(10) days after the expiration or termination of this Lease, and repair
and restore any damage to the Premises caused by the installation or
removal thereof. Landlord shall state upon receipt of Tenant's plans and
specifications for any proposed alterations whether Tenant will be
required to remove the alterations at the expiration or earlier
termination of the Lease. If Tenant does not remove said Alterations and
Additions within said ten (10) day period, Landlord may remove the same
and Tenant shall pay the cost of such removal to Landlord upon demand.
Tenant hereby agrees to protect, defend, indemnify and hold harmless
Landlord, its agents and employees, with respect to the Premises and the
Property, from any and all liabilities of every kind and description which
may arise out of or be connected in any way with said Alterations and
Additions. Any mechanic's lien filed against the Premises or the Property
or any notice which is received by either Landlord or Tenant for work
claimed to have been furnished to Tenant, and performed other than by
Landlord or Landlord's contractors, shall be released and discharged
within ten (10) days after such filing or receipt, whichever is
applicable, at Tenant's expense. Alterations and Additions permitted to be
performed other than by Landlord or Landlord's contractors shall be
performed in a manner so as not to annoy or disturb other tenants or
occupants of the Building, and shall be performed only during such hours
and under such conditions as shall be designated by Landlord. Upon
completion of Alterations and Additions performed other than by Landlord
or Landlord's contractors, Tenant shall furnish Landlord with contractors'
affidavits and full and final waivers of lien and receipted bills covering
all labor and materials expended and used. All Alterations and Additions
shall comply with all insurance requirements and with all applicable laws,
statutes, ordinances and regulations. All Alterations and Additions shall
be constructed in a good and workmanlike manner and only first-class
material shall be used. The performance of any Alterations and Additions
to the Premises by either Landlord or Landlord's contractors on behalf of
Tenant shall not be deemed or construed by the parties hereto, or by any
third party, as creating the relationship of principal and agent or of
partnership, or of joint venture, by and between the parties hereto, it
being understood and agreed that no provision contained in this Paragraph
17 or elsewhere in this Lease nor any acts of the
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parties hereto shall be deemed to create any relationship other than the
relationship of Landlord and Tenant.
18. Landlord's Right to Entry.
(a) Right of Entry; No Release from Obligations. Tenant shall permit
Landlord and the authorized representatives of Landlord and of any
mortgage or any prospective mortgagee to enter the Premises at all
reasonable times upon reasonable notice (except in case of
emergency), for the purpose of (i) inspecting the Premises or (ii)
making any necessary repairs thereto or to the Property and
performing any work therein. During the progress of any work on the
Premises or the Property, Landlord will use best efforts not to
inconvenience Tenant, but shall not be liable for inconvenience,
annoyance, disturbance, loss of business or other damage to Tenant
by reason of making any repair or by bringing or storing materials,
supplies, tools and equipment in the Premises during the performance
of any work, and the obligations of Tenant under this Lease shall
not be thereby affected in any manner whatsoever.
(b) Sale; Mortgage; Prospective Tenants. Landlord shall have the right
at all reasonable times and with reasonable notice to enter and to
exhibit the Premises for the purpose of sale or mortgage, and,
during the last nine (9) months of the Lease Term, to enter and to
exhibit the Premises to any prospective tenant.
19. Quite Enjoyment. Tenant, upon paying the minimum rent, additional rent and
other charges herein provided for, and observing and keeping all
covenants, agreements and conditions of this Lease on its part to be kept,
shall quietly have and enjoy the Premises during the Lease Term without
hindrance or molestation by anyone claiming by or through Landlord,
subject, however, to the exceptions, reservations and conditions of this
Lease. Landlord hereby reserves the right to prescribe, at its sole
discretion, reasonable rules and regulations (herein called the "Rules and
Regulations") having uniform applicability to all similarly situated
tenants of the Building and governing the use and enjoyment of the
Premises and the remainder of the Property; provided that the Rules and
Regulations shall not materially interfere with Tenant's use and enjoyment
of the Premises in accordance with the provisions of this Lease for the
permitted uses. Tenant shall adhere to the Rules and Regulations and shall
cause its agents, employees, invitees, visitors and guests to do so. A
copy of the Rules and Regulations in effect on the date hereof is attached
hereto as Exhibit "F".
20. Assignment and Subletting. Tenant for itself; its successors and assigns,
expressly covenants that it shall not by operation of law or otherwise
assign, sublet hypothecate, encumber or mortgage this Lease, or any part
thereof, or permit the Premises to be used by others without the prior
written consent of Landlord in each instance. Any attempt by Tenant to
assign, sublet, encumber or mortgage in contravention of the provisions of
this Lease shall be null and void. However, Tenant shall have the right to
assign its leasehold interest hereunder or sublease all or any portion of
the Premises to an Affiliate of Tenant
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or to any corporation successor (by merger, operation of law or
acquisition of substantially all the operating assets of Tenant) or
Tenant, without the consent or approval of Landlord; provided, that (a)
each such assignee (other than in the case of a merger of other transfer
where no former assignment of the Lease is involved) shall assume all
obligations of Tenant to be thereafter performed hereunder, and (b) each
such sublessee shall agree that its sublease shall be subject and
subordinate to this Lease. As used herein, the term "Affiliate" shall mean
any corporation or other entity or person with controls, is controlled by
or is under common control with Tenant, with the term "control" being
deemed to mean beneficial ownership of more than twenty percent (20%) of
the voting power of such entity. The consent by Landlord to any
assignment, mortgage, hypothecation, encumbrance, subletting or use of the
Premises by others, shall not constitute a waiver of Landlord's right to
withhold its consent to any other or further assignment, subletting,
mortgage, encumbrance or use of the Premises by others. Without the prior
written consent of Landlord, this Lease and the interest therein of any
assignee of Tenant herein, shall not pass by operation of law or
otherwise, and shall not be subject to garnishment or sale under execution
in any suit or proceeding which may be brought against or by Tenant or any
assignee of Tenant. Notwithstanding any provisions of this Lease to the
contrary, the provisions of this section shall not apply to, and no
approval of Landlord shall be required in the case of (i) any sale,
exchange, or other transfer of stock or other interest in Tenant to an
entity whose net worth is equal to or greater than Tenant's net worth, or
(ii) the occupancy of any space within the Premises by any licensee or
invitee of Tenant on a temporary basis. The absolute and unconditional
prohibitions contained in this Paragraph 20 and Tenant's agreement thereto
are material inducements to Landlord to enter into this Lease with Tenant
and any breach thereof shall constitute a material default hereunder
permitting Landlord to exercise all remedies provided for herein or by law
or in equity on a default of Tenant. If Tenant requests Landlord's consent
to an assignment of this Lease or subletting of all or any part of the
Premises, Tenant shall submit to Landlord: (1) the name of the proposed
assignee or subtenant; (2) the terms of the proposed assignment or
subletting together with a conformed or photostatic copy of the proposed
assignment or sublease; (3) the nature of business of the proposed
assignee or subtenant's business and its proposed use of the Premises; (4)
such reasonable information as to its financial responsibility and general
reputation as Landlord may require; and (5) a summary of plans and
specifications for revising the floor layout of the Premises.
Upon the receipt of such information from Tenant, Landlord shall have the
option, to be exercised in writing within thirty (30) days after such
receipt, to cancel and terminate this Lease if the request is to assign
this Lease or sublet more than fifty percent (50%) of the Premises or, if
the request is to sublet a portion of the Premises only, to cancel and
terminate this Lease with respect to such portion, in each case as of the
date set forth in Landlord's notice of exercise of such option.
If Landlord shall cancel this Lease, Tenant shall surrender possession of
the Premises, or the portion of the Premises which is the subject of the
request, as the case may be, on the date set forth in such notice in
accordance with the provisions of this Lease relating to surrender of the
Premises. If this Lease shall be canceled as to a portion of the Premises
only, the Minimum Annual Rent and all Additional Rent payable by Tenant
hereunder
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shall be abated proportionately according to the ratio that the number of
square feet in the portion of space surrendered (as computed by Landlord)
bears to the rentable area of the Premises.
If Landlord shall fail to exercise its option to cancel and terminate this
Lease with respect to all or part of the Premises as above provided,
Landlord shall not thereby be deemed to have consented to the proposed
assignment or subletting.
Landlord shall not unreasonably withheld its approval to any proposed
assignment of this Lease on sublease of all or any parties of the Premises
for which Landlord's approval is required under this Paragraph 20.
Landlord's approval shall be deemed to be unreasonably withheld if (i) the
proposed use of the Premises by the proposed assignee or sublessee is
permitted under the provisions of Paragraph 1 (n) (Permitted Uses) and
(ii) either the proposed assignee or sublessee has a net worth determined
substantially in accordance with generally accepted accounting principles,
consistently applied, of two million dollars ($2,000,000.00) or more.
Landlord's approval of any such assignment or sublease shall be
conclusively deemed given if not denied in writing within twenty (20)
business days after receipt of Tenant's request for such approval.
If Landlord shall consent to a sublease or an assignment pursuant to the
request from Tenant, Tenant shall cause to be executed by its assignee or
subtenant an agreement to perform faithfully and to assume and be bound by
all of the terms, covenants, conditions, provisions and agreements of this
Lease for the period covered by the assignment or sublease and to the
extent of the space sublet or assigned. An executed counterpart of each
sublease or assignment and assumption of performance by the sublessee or
assignee, in form and substance approved by Landlord, shall be delivered
to Landlord within five (5) days prior to the commencement of occupancy
set forth in such assignment or sublease; no such assignment or sublease
shall be binding on Landlord until Landlord has received such counterpart
as required herein.
If Landlord shall give its consent to any assignment of this Lease or to
any sublease, Tenant shall in consideration therefor pay to Landlord as
additional rent the following amounts less the actual expenses incurred by
Tenant in connection with such assignment or subletting including legal
fees, brokerage commissions and costs of making alterations, as the case
may be:
(i) In the case of an assignment, an amount equal to fifty percent
(50%) of all sums and other considerations paid to Tenant by
the assignee for or by reason of such assignment (including,
but not limited to, sums paid for the sale of Tenant's
fixtures, leasehold improvements, equipment, furniture,
furnishings or other personal property less the then net
unamortized or undepreciated cost thereof determined on the
basis of Tenant's federal income tax returns); and
(ii) In the case of a sublease, fifty percent (50%) of any rents,
additional charge or other consideration payable under the
sublease to Tenant by the subtenant which is in excess of the
minimum rent and all additional rent
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accruing during the term of the sublease in respect of the
subleased space (at the rate per square foot payable by Tenant
hereunder) pursuant to the terms hereof (including, but not
limited to, sums paid for the sale or rental of Tenant's
fixtures, leasehold improvements, equipment, furniture,
furnishings or other personal property, less the then net
unamortized or undepreciated cost thereof determined on the
basis of Tenant's federal income tax returns).
The sums payable as set forth above shall be paid to Landlord as
additional rent as and when paid by the assignee or subtenant to Tenant.
Notwithstanding the language contained herein, Tenant shall not sublease
more than 6200 square feet, unless such sublease is with an affiliate.
In no event (except in the event the assignee has a net worth of at least
ten million dollars ($10,000,000.00), as determined substantially in
accordance with generally accepted accounting principles, consistently
applied) shall any assignment or subletting to which Landlord may consent,
release or relieve Tenant from its obligations to fully observe or perform
all of the terms, covenants and conditions of this Lease on its part to be
observed or performed.
Where evidence of net worth is required under this Paragraph 20, the most
recent annual (or other current) financial statements of the entity shall
in all cases be deemed sufficient if prepared and audited by an
independent certified public accounting firm of national standing; in the
absence of such audited financial statements, other reasonable evidence
may be supplied.
21. Subordination. Landlord reserves the right to subject and subordinate this
Lease at all times to the lien of any first mortgage now or hereafter
placed upon Landlord's interest in the Premises, the Building and/or the
Property, and to any second mortgage with the consent of the first
mortgagee, and Tenant shall executed and deliver any and all documents
necessary to evidence such subordination. Tenant hereby irrevocably
appoints Landlord the Attorney-in-Fact of Tenant to execution and deliver
any such instrument or instruments for and in the name of Tenant as may be
necessary to effect such subordination; provided, however, no default by
Landlord under any such mortgage(s) shall affect Tenant's rights hereunder
so long as Tenant is not in default under this Lease. Tenant shall, in the
event any proceedings are brought for the foreclosure of any such
mortgage(s), attorn to the purchaser upon any such foreclosure or sale and
recognize such purchaser as Landlord under this Lease.
22. Tenant's Certificate. Tenant, at any time and from time to time and within
ten (10) days after Landlord's written request, shall execute, acknowledge
and deliver to Landlord a written instrument in recordable form certifying
that this Lease is unmodified and in full force and effect (or, if there
have been modifications, that it is in full force and effect as modified
and stating the modifications); stating that the improvements required by
Paragraph 4 hereof have been completed by Tenant; certifying that Tenant
has accepted
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possession of the Premises; stating the date on which the Lease Term
commenced and the dates to which minimum rent, additional rent and other
charges have been paid in advance, if any; stating that to the best
knowledge of the signer of such instrument Landlord is not in default of
this Lease (or if there are defaults alleged by Tenant, setting forth in
detail the nature of such alleged defaults); stating any other fact or
certifying any other condition reasonably requested by Landlord or
required by any mortgagee or prospective mortgagee or purchaser of the
Property or any interest therein; and stating that it is understood that
such instrument may be relied upon by any mortgagee or prospective
mortgagee or purchaser of the Property or any interest therein or by any
assignee of Landlord's interest in this Lease or by any assignee of any
mortgagee. The foregoing instrument shall be addressed to Landlord and to
any mortgagee, prospective mortgagee, purchaser or other party specified
by Landlord. Said instrument shall be in the form of Exhibit "G" attached
hereto.
23. Surrender.
(a) Condition of Premises. Subject to the terms of Paragraph 13 and
subparagraph (c) of Paragraph 10 hereof, at the expiration or
earlier termination of the Lease Term, Tenant shall promptly yield
up, clean and neat, and in the same condition, order and repair in
which they are required to be kept throughout the term hereof, the
Premises and all improvements, alterations and additions thereto,
and all fixtures and equipment servicing the Building, ordinary wear
and tear excepted.
(b) Holding Over. If Tenant, or any person claiming through Tenant,
shall continue to occupy the Premises after the expiration or
earlier termination of the Lease Term or any renewal thereof, such
occupancy shall be deemed to be under a month-to-month tenancy under
the same terms and conditions set forth in this Lease; except,
however, that the Monthly Rent Installments for each month during
such continued occupancy shall be one hundred fifty percent (150%)
the amount set fort in Item (j) of Basic Terms. Anything to the
contrary notwithstanding, any holding over by Tenant without
Landlord's prior written consent shall constitute a default
hereunder and shall be subject to all the remedies set forth in
Paragraph 24 hereof.
24. Defaults - Remedies.
(a) Defaults. It shall be an event of default: (i) if Tenant does not
pay in full when due and without demand any and all installments of
minimum rent or additional rent or any other charges or payments
designated as Rent in Item (h) of Basic Terms; or (ii) If Tenant
violates or fails to perform or otherwise breaches any agreement,
term, covenant or condition herein contained; (iii) or if Tenant
vacates or abandons any portion of the Premises, or fails to occupy
the Premises for a period of thirty (30) days or if substantially
all of Tenant's assets in or on the Premises or Tenant's interest in
this Lease is attached or levied upon under execution (and Tenant
does no discharge same within sixty (60) days thereafter);
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or if Tenant removes or attempts to remove Tenant's goods or
property therefrom other than in the ordinary course of business
without having first paid to Landlord in full all minimum rent,
additional rent and other charges that may have become due as well
as all which will become due thereafter; or (iv) If Tenant becomes
insolvent or bankrupt in any sense or makes an assignment for the
benefit of creditors or offers a composition or settlement to
creditors, under any federal or state law, or if a petition in
bankruptcy or for reorganization or for an arrangement with
creditors under any federal or state law is filed by or against
Tenant, or Tenant is adjudicated insolvent pursuant to the
provisions of any present or future insolvency law of any state
having jurisdiction, or a xxxx in equity or other proceeding for the
appointment of a receiver, trustee, liquidator, custodian,
conservator or similar official for any of Tenant's assets is
commenced, under any federal or state law by reason of Tenant's
inability to pay its debts as they become due or otherwise, or if
Tenant's estate by this Lease or any real or personal property of
Tenant shall be levied or executed upon by any sheriff, xxxxxxxx or
constable; or by other process of law; provided, however, that any
proceeding brought by anyone other than the parties to this Lease
under any bankruptcy, reorganization, arrangement, or insolvency,
readjustment, receivership or similar law shall not constitute a
default until such proceeding, decree, judgement or order has
continued unstayed for more than sixty (60) consecutive days. If
this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, or any similar provisions of any
future federal bankruptcy law, (the "Bankruptcy Code"), any and all
monies or other considerations payable or otherwise to be delivered
in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord and
shall not constitute property of Tenant or of the estate of Tenant
within the meaning of the Bankruptcy Code. Any and all monies or
other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held
in trust for the benefit of Landlord and be promptly paid to or
turned over to Landlord; or (v), If any of the events enumerated in
this subparagraph (a) shall happen to any guarantor of this Lease.
(b) Remedies. Upon the occurrence of an event of default, and the
expiration of the applicable grace period as hereinafter provided,
Landlord shall have the following rights: (i) To accelerate the
whole or any part of the Rent for the entire unexpired balance of
the Lease Term, and any Rent if so accelerated shall, in addition to
any and all installments of Rent already due and payable and in
arrears, be deemed due and payable as if, by the terms and
provisions of this Lease, such accelerated Rent was on that date
payable in advance. For such purposes, all items of Rent due
hereunder, which are not then capable of precise determination,
shall be estimated by Landlord, in Landlord's reasonable judgement,
for the balance of the then current term; (ii) To enter the Premises
and without further demand or notice proceed to distress and sale of
the goods, chattels and personal property there found, to levy the
Rent, and Tenant shall pay all reasonable costs and officers'
commissions which are permitted by law, including watchmen's wages
and sums chargeable to Landlord, and further including five percent
(5%) commission(s) to the officer or other person making the levy,
and in such case all costs, officers'
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commissions and other charges shall immediately attach and become
part of the claim of Landlord for Rent, and any tender of Rent
without said costs, commissions and charges made after the issuance
of a warrant of distress, shall not be sufficient to satisfy the
claim of Landlord; (iii) To re-enter the Premises, together with all
additions, alterations and improvements, and, at the option of
Landlord, remove all persons and all or any property therefrom,
either by summary dispossess proceedings or by any suitable action
or proceeding at law or by force or otherwise, without being liable
for prosecution or damages therefor, and repossess and enjoy the
Premises. Upon recovering possession of the Premises by reason of or
based upon or arising out of a default on the part of Tenant,
Landlord may, at Landlord's option, either terminate this Lease or
Tenant's right of possession, and in either such event, make such
alterations and repairs as may be necessary in order to relet the
Premises and thereafter relet the Premises or any part or parts
thereof, either in Landlord's name or otherwise, for a term or terms
which may, at Landlord's option, be less than or exceed the period
which would otherwise have constituted the balance of the Lease Term
and at such rent or rents and upon such other terms and conditions
as in Landlord's reasonable discretion may seem advisable and to
such person or persons as may in Landlord's reasonable discretion
seem best; upon each such reletting all rents received by Landlord
from such reletting shall be applied first, to the payment of any
costs and expenses of such reletting, including the portion of
brokerage fees and reasonable attorneys' fees and all costs of such
alterations which are applicable to the remaining term of the Lease;
second, to the payment of any indebtedness other than Rent due
hereunder from Tenant to landlord; third, to the payment of Rent due
and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of future Rent as it may become due
and payable hereunder. At the time rent obligations have been
satisfied, any residuals shall be refunded to Tenant. If such
rentals received from such reletting during any month shall be less
than that to be paid during that month by Tenant, Tenant shall pay
any such deficiency to Landlord. Such deficiency shall be calculated
and paid monthly. No such re-entry or taking possession of the
Premises or the making of alterations or improvements thereto or the
reletting thereof shall be construed as an election on the part of
Landlord to terminate this Lease unless written notice of such
intention be given to Tenant. Landlord shall in no event be liable
in any way whatsoever for failure to relet the Premises or, in the
event that the Premises or any part or parts thereof are relet, for
failure to collect the Rent thereof under such reletting so long as
Landlord uses best efforts to relet said premises. Tenant, for
Tenant and Tenant's successors and assigns, hereby irrevocably
constitutes and appoints Landlord Tenant's and their agent to
collect the rents due and to become due under all subleases of the
Premises or any parts thereof without in any way affecting Tenant's
obligation to pay any unpaid balance of Rent due or to become due
hereunder. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease
for such previous breach; (iv) To terminate this Lease and the Lease
Term without any right on the part of Tenant to waive the forfeiture
by payment of any sum due or by other performance of any condition,
term or
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covenant broken, whereupon Landlord shall be entitled to recover, in
addition to any and all sums and damages for violation of Tenant's
obligations hereunder in existence at the time of such termination,
damages for Tenant's default in an amount equal to the amount of the
Rent reserved for the balance of the Lease Term, discounted at the
rate of six percent (6%) per annum to its then present worth, less
the fair rental value of the Premises for the remainder of said
term, also discounted at the rate of six percent (6%) per annum to
its then present worth, plus the cost of making Building standard
improvements and a standard commission for re-leasing the Premises,
all of which amount shall be immediately due and payable from Tenant
to Landlord.
(c) Non-Waiver. No waiver by Landlord of any breach by Tenant or any of
Tenant's obligations, agreements or covenants herein shall be a
waiver of any subsequent breach or of any obligation, agreement or
covenant, nor shall any forbearance by Landlord to seek a remedy for
any breach by Tenant be a waiver by Landlord of any rights and
remedies with respect to such or any subsequent breach.
(d) Tenant Cure Period. Notwithstanding anything hereinabove stated,
except in the case of emergency, and except in the event of
abandonment or vacation of the Premises by Tenant or any default
enumerated in subparagraphs (a) (iii), (iv) and (v) of this
Xxxxxxxxx 00, Xxxxxxxx will not exercise any right or remedy
provided for in this Lease or allowed by law unless, with respect to
any default by Tenant in the payment of minimum rent or additional
rent or any other charges or payments herein included as Rent,
Tenant does not cure the default within ten (10) days after written
demand for payment by Landlord or its authorized agent of such Rent
or unless, with respect to any other default by Tenant in the prompt
and full performance of any other provision of this Lease, Tenant
does not cure same within thirty (30) days after written demand by
Landlord or its authorized agent that the default be cured.
(e) Rights and Remedies Cumulative. No right or remedy herein conferred
upon or reserved to Landlord is intended to be: exclusive of any
other right or remedy provided herein or by law, but each shall be
cumulative and in addition to every other right or remedy given
herein or now or hereafter existing at law or in equity or by
statute.
(f) Rights of Mortgagee. In the event of any default by act or omission
by Landlord which would give Tenant the right to terminate this
Lease or to claim a partial or total evicting. Tenant shall not
exercise any such right until it has notified in writing the holder
of any mortgage which at the time shall be a mortgage lien on all or
any portion of the Property (if the name and address of such holder
shall previously have been furnished by written notice to Tenant) of
such default, and until a reasonable period for curing such default
shall have elapsed following the giving of such notice, during which
period the holder shall have failed to commence and continue to cure
such default or to cause the same to be remedies or cured.
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(g) Curing Tenant's Defaults. If Tenant shall be in default in the
performance of any of its obligations hereunder, Landlord, without
any obligation to do so, in addition to any other rights it may have
in law or equity, may elect (but shall not be obligated) to cure
such default on behalf of Tenant after written notice (except in the
case of emergency) to Tenant. Tenant shall reimburse Landlord upon
demand for any sums paid or costs incurred by Landlord in curing
such default, including interest thereon from the respective dates
of Landlord's making the payments and incurring such costs, at the
rate set forth in subparagraph (b)(v) of Paragraph 7, which sums and
costs together with interest thereon shall be deemed additional rent
payable promptly upon being billed therefor.
25. Bankruptcy or Insolvency, Assumption; Adequate Protection. The following
shall apply in the event of the bankruptcy or insolvency of Tenant:
(i) If a petition if filed by, or an order for relief is entered
against Tenant under Chapter 7 of the Bankruptcy Code and the
trustee of Tenant elects to assume this Lease for the purpose
of assigning it, the election or assignment, or both, may be
made only, if all of the terms and conditions of subparagraphs
(ii) and (iv) below are satisfied. If the trustee fails to
elect to assume this Lease for the purpose of assigning it
within ninety (90) days after his appointment, this Lease will
be deemed to have been rejected. To be effective, an election
to assume this Lease must be in writing and addressed to
Landlord and, in Landlord's business judgment, all of the
conditions hereinafter stated, which Landlord and Tenant
acknowledge to be commercially reasonable, must have been
satisfied. Landlord shall then immediately be entitled to
possession of the Premises without further obligation to
Tenant or the trustee, and this Lease will be canceled.
Landlord's right to be compensated for damages in the
bankruptcy proceeding, however, shall survive.
(ii) If Tenant files a petition for reorganization under chapters
11 or 13 of the Bankruptcy Code or a proceeding that is filed
by or against Tenant under any other chapter of the Bankruptcy
Code is converted to a chapter 11 or 13 proceeding and
Tenant's trustee or Tenant as a debtor-in-possession fails to
assume this Lease within ninety (90) days from the date of the
filing of the petition or the conversion, the trustee or the
debtor-in-possession will be deemed to have rejected this
Lease. To be effective, an election to assume this Lease must
be in writing and addressed to Landlord and, in Landlord's
business judgment, all of the following conditions, which
Landlord and Tenant acknowledge to be commercially reasonable,
must have been satisfied:
(a) The trustee or the debtor-in-possession has cured or has
provided to Landlord adequate assurance, as defined in this
subparagraph (ii), that:
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(1) The trustee will cure all monetary defaults under this
Lease within ten (10) days from the date of the
assumption; and
(2) The trustee will cure all non-monetary defaults under
this Lease within thirty (30) days from the date of the
assumption.
(b) The trustee or the debtor-in-possession has compensated
Landlord, or has provided to Landlord adequate assurance, as
defined in this subparagraph (ii), that within ten (10) days
from the date of the assumption Landlord will be compensated
for any pecuniary loss it incurred arising from the default of
Tenant, the trustee, or the debtor-in-possession as received
in Landlord's written statement of pecuniary loss sent to the
trustee or the debtor-in-possession.
(c) The trustee or the debtor-in-possession has provided Landlord
with adequate assurance of the future performance of each of
Tenant's obligations under the Lease; provided, however, that:
(1) The trustee or debtor-in-possession will also deposit
with Landlord, as security for the timely payment of
Rent, an amount equal to three months' minimum rent and
other monetary charges accruing under this Lease.
(2) If not otherwise required by the terms of this Lease, the
trustee or the debtor-in-possession will also pay in
advance, on each day that the minimum rent is payable,
one-twelfth of Tenant's annual obligations under the
lease for the Base Amount.
(3) From and after the date of the assumption of this Lease,
the trustee or the debtor-in-possession will pay the
Minimum Annual Rent payable under this Lease in advance
in equal monthly installments on each day that the
Minimum Annual Rent is payable.
(4) The obligations imposed upon the trustee or the
debtor-in-possession will continue for Tenant after the
completion of bankruptcy proceedings.
(d) Landlord has determined that the assumption of this Lease will
not:
(1) Breach any provision in any other lease, mortgage,
financing agreement, or other agreement by which Landlord
is bound relating to the Property; or
(2) Disrupt, in Landlord's judgment, the tenant mix of the
Building or any other attempt by Landlord to provide a
specific variety of tenants in the Building that, in
Landlord's judgment, would be most beneficial to all of
the tenants of the Building and would enhance the image,
reputation, and profitability of the Building.
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(e) For purposes of this subparagraph (ii), "adequate assurance"
means that:
(1) Landlord will determine that the trustee or the
debtor-in-possession has, and will continue to have,
sufficient unencumbered assets after the payment of all
secured obligations and administrative expenses to
assure Landlord that the trustee or the
debtor-in-possession will have sufficient funds to
fulfill Tenant's obligations under this Lease and to
keep the Premises properly staffed with sufficient
employees to conduct a fully operational, actively
promoted business on the Premises; and
(2) An order will have been entered segregating sufficient
cash payable to Landlord and/or a valid and preferred
first lien and security interest will have been granted
in property of Tenant, trustee, or debtor-in-possession
that is acceptable for value and kind to Landlord, to
secure to Landlord the obligation of the trustee or
debtor-in-possession to cure the monetary or nonmonetary
defaults under this Lease within the time periods set
forth above.
(iii) In the event that this Lease is assumed by a trustee appointed
for Tenant or by Tenant as debtor-in-possession under the
provisions of subparagraph (ii) above and, thereafter, Tenant
is either adjudicated a bankrupt or files a subsequent
petition for arrangement under chapter 11 of the Bankruptcy
Code, then Landlord may terminate, at its option, this Lease
and all Tenant's rights under it, by giving written notice of
Landlord's election to terminate.
(iv) If the trustee or the debtor-in-possession has assumed the
Lease, under the terms of subparagraph (i) or (ii) above, and
elects to assign Tenant's interest under this Lease or the
estate created by that interest to any other person, that
interest or estate may be assigned only if Landlord
acknowledges in writing that the intended assignee has
provided adequate assurance, as defined in this subparagraph
(iv), of future performance of all of the terms, covenants,
and conditions of this Lease to be performed by Tenant.
(a) For the purposes of this Paragraph 25, "adequate assurance of
future performance" means that Landlord has ascertained that
each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement,
audited by a certified public accountant, that shows a
net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future
performance by the assignee of Tenant's obligations under
this Lease;
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(2) If requested by Landlord, the assignee will obtain
guarantees, in form and substance satisfactory to
Landlord from one or more persons who satisfy Landlord's
standards of credit worthiness;
(3) Landlord has obtained all consents or waivers from any
third party required under any lease, mortgage, financing
arrangement, or other agreement by which Landlord is
bound, to enable Landlord to permit the assignment;
(4) When, pursuant to the Bankruptcy Code, the trustee or the
debtor-in-possession is obligated to pay reasonable use
and occupancy charges for the use of all or part of the
Premises, the charges will not be less than the minimum
rent as defined in this Lease and additional rent and
other monetary obligations of Tenant included herein as
Rent.
(v) Neither Tenant's interest in the Lease nor any estate of
Tenant created in the Lease will pass to any trustee,
receiver, assignee for the benefit of creditors, or any other
person or entity, or otherwise by operation of law under the
laws of any state having jurisdiction of the person or
property of Tenant unless Landlord consents in writing to the
transfer. Landlord's acceptance of Rent or any other payments
from any trustee, receiver, assignee, person, or other entity
will not be deemed to have waived, or waive, the need to
obtain Landlord's consent or Landlord's right to terminate
this Lease for any transfer of Tenant's interest under this
Lease without that consent.
26. Interpretation.
(a) Captions. The captions in this lease are for convenience only and
are not a part of this lease and do not in any way define, limit,
describe or amplify the terms and provisions of this lease or the
scope or intent thereof.
(b) Entire Agreement. This lease represents the entire agreement between
the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the
Premises or the Property. This Lease supersedes all prior
negotiations, agreements, informational brochures, letters,
promotional information and other statements and materials made or
furnished by Landlord or its agents. The submission of this Lease by
Landlord, its attorneys or agents, for examination or for execution
by Tenant, does not constitute a reservation of (or option for) the
Premises in favor of Tenant; and Tenant shall have no right or
interest in the Premises, and Landlord shall have no liability
hereunder, unless and until this Lease is executed and delivered by
Landlord. No rights, easements or licenses are acquired in the
Property or and land adjacent to the Property by Tenant by
implication or otherwise except as expressly set forth in the
provisions of this Lease. This Lease shall not be modified in any
manner except by an instrument in writing executed by the parties.
The masculine (or
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neuter) pronoun, singular number, shall include the masculine,
feminine and neuter genders and the singular and plural number.
(c) Exhibits. Each writing or plan referred to herein as being attached
hereto as an Exhibit or otherwise designated herein as an Exhibit
hereto is hereby made a part hereof.
(d) Interest. Wherever interest is required to be paid hereunder, such
interest shall be at the rate set forth in subparagraph (b)(v) of
Paragraph 7.
27. Definition of Landlord; Landlord's Liability. The word "Landlord" is used
herein to include the Landlord named above as well as its successors and
assigns, each of whom shall have the same rights, remedies, powers,
authorities and privileges as it would have had, had it originally signed
this Lease as Landlord. Any such person, whether or not named herein,
shall have no liability hereunder after it ceases to hold title to the
Premises except for obligations which may have therefore accrued. Neither
Landlord nor any principal of Landlord nor any owner of the Property,
whether disclosed or undisclosed, shall have any personal liability with
respect to any of the provisions of this Lease or the Premises, and if
Landlord is in breach or default with respect to Landlord's obligations
under this Lease or other-wise. Notwithstanding anything contained herein
to the contrary, the extent of Landlord's liability shall not exceed
$500,000.00.
28. Notices. All notices, demands, requests, consents, certificates and
waivers required or permitted hereunder from either party to the other
shall be in writing and sent by United States certified mail, return
receipt requested, postage prepaid. Notices to shall be addressed to
Tenant at the address designated in Item (b) of Basic Terms or, after the
Commencement Date, to the Premises. Notices to Landlord shall be addressed
to Landlord at the address designated in Item (a) of Basic Terms, with a
copy to the Xxxxx Xxxxxxx Company, 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, with a further copy to any mortgagee or other
party designated by Landlord. Either party may at any time, in the manner
set forth for giving notices to the other, specify a different address to
which notices to it shall be sent.
29. Brokerage. Landlord and Tenant represents and warrants that they have not
had any dealings with any realtors, brokers, or agents in connection with
the negotiation of this Lease other than as set forth in Item (o) of Basic
Terms. Tenant and Landlord will defend, hold harmless and indemnify the
other from and against any claims with respect to the negotiation or
procurement of this Lease by any other realtor, broker or agent. 30.
Guarantee. In the event a guarantee is executed in connection with this
Lease, said guarantee shall be deemed a part of this Lease.
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto
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has caused this Agreement of Lease to be duly executed as of the day and year
first above written.
ATTEST: LANDLORD:
WHT REAL ESTATE
LIMITED PARTNERSHIP
By: WHT Investors, Inc., general
partner
By: By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------- --------------------------
Its: Assistant Vice President
--------------------------
WITNESSES: TENANT:
SOFTWORKS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------- --------------------------
Its: Chief Executive Officer
-------------------------- --------------------------
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ADDENDUM TO AGREEMENT OF LEASE
THIS ADDENDUM TO AGREEMENT OF LEASE ("Lease Addendum"), make this
_____________ day of _______________, 1994, by and between WHT REAL ESTATE
LIMITED PARTNERSHIP, as Landlord, and SOFTWORKS, INC., incorporated in the State
of Maryland, as Tenant, for space on the third (3rd) and fourth (4th) floors of
the Huntwood Plaza Building, 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
is attached to and made a part of said Agreement of Lease (sometimes
collectively referred to as the "Lease") and sets forth additional and modified
terms agreed upon by Landlord and Tenant. Unless otherwise provided, capitalized
terms herein shall have the meanings ascribed thereto in the Agreement of Lease.
In the event of any conflict between any provisions of this Lease Addendum and
any of the provisions of the Agreement of Lease, the provisions of this Lease
Addendum shall control.
1. Under Paragraph 1, titled "Basic Terms," items (i), (j), and (k) are
hereby amended and restated, respectively, as follows:
(i) Minimum Annual Rent: $297,432.00 during the first year of the
Lease Term. During the Lease Term, on each annual anniversary
of the Commencement Date, the then effective Minimum Annual
Rent shall be increased by three percent (3%) per annum.
(j) Monthly Rent Installment: $24,786.00 during the first year of
the Lease Term and recalculated thereafter to equal the then
effective Minimum Annual Rent divided by twelve (12).
(k) Base Amount: Commencing August 1, 1995, and continuing on
August 1 of each year thereafter, Landlord shall estimate the
Annual Operating costs to be incurred during such calendar
year ("Projected Costs") and, if such Projected Costs are
greater than Annual Operating Costs incurred by Landlord
during calendar year 1994 (the "Base Year"), Tenant shall be
responsible for its pro-rata share of the Building (which is
currently measured at 93,670 gross rentable square feet), or
26.5% of the amount by which the Projected Costs exceed the
Annual Operating Costs for the Base Year (the "Base Amount"),
subject to final adjustment as provided in paragraph
7.(b)(ii).
2. The paragraph which comprises Paragraph 5 is hereafter designated as
paragraph 5(a) and the following paragraph 5(b) is added to
Paragraph 5:
5(b) Lease Term Extension: Tenant shall have the option to extend
the Lease Term for one (1) period of five (5) years, provided
that Tenant is not in default of any of the terms or
conditions of the Lease at the time of the exercise of the
option to extend or at the time of commencement of the
extension term.
(i) The extension period shall be executed upon the same terms,
covenants and conditions as provided in this Lease, except
that the Minimum Annual
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Rent (and concomitantly, the Monthly Rent Installment) shall
be adjusted as hereinafter provided.
(ii) Notwithstanding anything to the contrary contained herein, the
Minimum annual rent at the commencement of the extension
period and for each Lease year during the extension period
shall equal to ninety-five percent (95%) of the fair market
rental rate prevailing for a lease of an equivalent amount of
comparable commercial office space in a Building, similarly
improved, for and over a term of five (5) years, commencing as
of the commencement date of the extension period. In
determining fair market rental rate for purposes of this
Paragraph, the parties shall consider, among other relevant
factors, annual rental rates per rentable square foot, the
type of escalation clauses (including, without limitation,
operating expenses stop and real estate tax adjustments),
floor location and prominence, tenant improvements or
allowances and rental abatement concessions; provided,
however, that no reduction or increase in rent shall be
granted for the presence or absence of a brokerage commission.
(iii) Such opinion to extend shall be exercised by the Tenant giving
written notice to the Landlord not later than one hundred
twenty (120) days prior to the expiration of the Lease Term.
Landlord shall within thirty (30) days after the date it
receives notice of Tenant's election to exercise its option to
extend, notify Tenant of the Minimum Annual Rent to be charged
at the commencement of the extension period and the applicable
annual escalation factor(s). Tenant shall have thirty (30)
days after the date of Landlord's notification of the Minimum
annual Rent and escalators to be charged to nullify its
exercise of the option by providing Landlord written notice of
the same. If Tenant nullifies its exercise of this option to
extend, this option shall terminate and be of no further force
and effect, and the Lease Term shall not be extended.
(iv) Tenant agrees to accept the Premises in the condition then
existing as of the date of commencement of the extension term
of this Lease. Landlord shall not be responsible for
performing any work, furnishing any materials or providing any
allowances for improvements to the Premises.
3.(a) The following paragraphs are added to the end of Paragraph 7(b)(i):
Operating Expenses shall not include (a) payments of
principal, interest, ground rent or any other financing costs on any
mortgages, deeds of trust, ground leases or other encumbrances upon
the Building or any penalties or late charges relating thereto or
related to any unsecured financing; (b) compensation paid to
officers, executives or partners of Landlord; (c) leasing or selling
commissions; (d) any and all taxes, property or otherwise, to the
extent Landlord is reimbursed by any tenant; (e) costs of repairs or
other work occasioned by any casualty which cost is reimbursed by
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insurance; (f) legal fees or other expenses incurred in connection
with negotiations or disputes with tenants, other occupants or
prospective tenants of the Building; (g) costs of renovating or
otherwise improving, painting, decorating, planning designing space
or vacant space for prospective tenants, tenants or other occupants
of the Building; (h) costs of electricity (including engineer and
overhead) and other services sold to tenants of the Building by
Landlord for which Landlord is entitled to direct reimbursement, by
such tenants as an additional charge; (i) expenses, costs or fees
incurred by Landlord relating to any violation by Landlord or any
other tenant of the terms and conditions of any lease of space in
the Building; (j) all items and services for which Tenant reimburses
Landlord; (k) costs relating to maintaining Landlord's existence,
either as a corporation, partnership or other entity; (l) any and
all cost associated with purchasing artwork in the building.
The Tenant shall have certain rights to contest the Real
Estate Taxes as provided herein. Tenant may, at it's sole cost and
expense, contest any Real Estate Tax on the Building or the Land (in
Tenant's name or in the name of the Landlord, or both, as Landlord
may deem appropriate), but only in the event that (i) Landlord does
not contest such taxes, and (ii) the Tenant obtains the written
consent of tenants in the Building who occupy at least seventy
percent (70%) of the office space in the Building. If Landlord shall
contest such taxes, Tenant shall have the right to participate in
such proceeding in a manner to be reasonably determined by Landlord
and Tenant. In any such case Tenant's share of the disputed tax
actually paid by Tenant as part of the Operating Expenses and later
refunded or forgiven to Landlord by the taxing authority less costs
incurred by Landlord will be, in turn, refunded by Landlord to
Tenant within thirty (30) days of refund to the Landlord. If Tenant
is contesting the tax, Landlord shall cooperate with Tenant in any
such contest, shall execute any instrument reasonably required to be
executed by Landlord under the circumstances and pay Tenant the
reasonable cost of such contest out of any refund (within thirty
(30) days of the refund or forgiveness but not in excess of Tenant's
pro rata share of the refund or forgiveness).
3.(b) Paragraph 7(b)(iii) is amended and restated in its entirety as
follows:
(iii) Computation of Tenant's Share of Annual Operating Cost. After
the end of each calendar year of the Lease Term, Landlord shall
compute Tenant's share of the Annual Operating Costs described in
Paragraph 7(b)(i) incurred during such calendar year by [A]
calculating an appropriate adjustment, using generally
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accepted accounting principles, to avoid allocating to Tenant or to
any other tenant (as the case may be) those specific costs which
Tenant or any other tenant has agreed to separately pay; [B]
calculating an appropriate adjustment, using generally accepted
accounting principles, to avoid allocating to any occupied space
those tenant specific costs which were not incurred for such space;
and [C] determining the amount by which, if any, that the adjusted
Annual Operating Costs for the subject calendar year exceeds the
adjusted Annual Operating Costs for Base Calendar Year 1994 and
multiplying such amount by that percentage constituting Tenant's
Share of Annual Operating Costs, which percentage is based on the
proportion of the rentable area of the Premises to the rentable area
of the Building.
4. Paragraph 8, titled "Security Deposit" is amended and restated in
its entirety as follows:
8. Security Deposit. At the time of signing this Lease Tenant shall
deposit with Landlord an amount equal to twenty four thousand seven
hundred eighty-six dollars and 00/100 ($24,786.00). Such sums (the
"Security Deposit") will be retained by Landlord as cash security
for the faithful performance and observance by Tenant of the
covenants, agreements and conditions of this Lease. Notwithstanding
anything to the contrary contained in any law or statute now
existing or hereafter passed (i) Tenant shall not be entitled to any
interest whatever on the Security Deposit, (ii) Landlord shall not
be obligated to hold the Security Deposit in trust or in a separate
account, and (iii) Landlord shall have the right to commingle the
Security Deposit with its other funds. Landlord may use, apply or
retain the whole or any part of the Security Deposit to the extent
required for the payment of any minimum rent, any additional rent or
any other sums payable hereunder as to which Tenant is in default or
to the extent required for the reimbursement to Landlord of any sum
which Landlord may expend or may be required to expend by reason of
Tenant's default with respect to any of the covenants, agreements or
conditions of this Lease. If Tenant shall fully and faithfully
comply with all of the covenants, agreements and conditions of this
Lease, the Security Deposit shall be returned to Tenant after the
date fixed as the expiration of the Lease Term and surrender of the
premises to Landlord. If the Premises are sold to a bona fide
purchaser, Landlord shall have the right to transfer the aforesaid
Security Deposit to such purchaser, by which transfer Landlord shall
be released from all liability for the return thereof, and Tenant
shall look solely to the new Landlord for the return thereof.
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5. Landlord agrees that the Tenant's equipment listed on Exhibit A-1
attached hereto shall not be deemed to have "special electrical"
needs allowing the imposition by Landlord of additional charges
therefor.
6. The terms of this Agreement of Lease shall not be altered by the
subsequent sale of the building.
7. Neither Tenant nor any principals of Tenant, whether disclosed or
undisclosed, shall have any personal liability with respect to any
of the provisions of this Lease or the Premises.
Witness the following signatures as of the date first above written.
LANDLORD:
WHT REAL ESTATE
LIMITED PARTNERSHIP
By: WHT Investors, Inc., general
partner
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Title: Assistant Vice President
--------------------------
TENANT:
SOFTWORKS, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Title: Chief Executive Officer
--------------------------
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(Landlord's Acknowledgement)
STATE OF TEXAS )
) SS:
COUNTY OF DALLAS )
On this 13th day of June, 1994, before me appeared Xxxxxxxx X. Xxxxxx, to me
personally known, who being by me duly sworn, did say that he is the Assistant
Vice President of WHT Investors, Inc., general partner of WHT REAL ESTATE
LIMITED PARTNERSHIP, a Delaware limited partnership, the entity that executed
the within and foregoing instrument and that said instrument was signed and
sealed in behalf of said entity, and that the seal affixed is the seal of said
entity and said Xxxxxxxx X. Xxxxxx acknowledged said instrument to be the free
act and deed of said entity.
/s/ Xxxxxxx Wetzelnatheny, Dallas
-----------------------------------
NOTARY PUBLIC, County,
My commission expires: 12/4/96
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(Tenant's Corporate Acknowledgement)
STATE OF MARYLAND )
) SS: 02011143
COUNTY OF PRINCE GEORGE'S )
On this 23rd day of March, 1994, before me appeared XXXX X. XXXXXX, to me
personally known, who being by me duly sworn, did say that (he) (she) is the
CHIEF EXECUTIVE OFFICER of SOFTWORKS, INC., the corporation that executed the
within and foregoing instrument and that said instrument was signed and sealed
in behalf of said corporation by authority of its Board of Directors, and that
the seal affixed is the corporate seal of said corporation and said XXXX X.
XXXXXX acknowledged said instrument to be the free act and deed of said
corporation.
/s/ Xxxxxxxx X. Xxxxxxx PG
--------------------------------
NOTARY PUBLIC, County,
My commission expires:________________
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EXHIBIT "A"
FLOOR PLANS
[Drawings of floor plans of the leased premises.]
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EXHIBIT "A-1"
COMPUTER/EQUIPMENT INVENTORY
Quantity Description
-------- -----------
100 Personal Computers (various manufacturers and models)
20 Printers (various manufacturers and models)
10 Faxes
4 Copiers
1 IBM ES9000 Main Frame Computer and Peripherals
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EXHIBIT "B"
DESCRIPTION OF PROPERTY
All of that certain lot or parcel of land situate, lying and being in
Fairfax County, Virginia, and more particularly described as follows:
PARCEL I:
BEGINNING at a point on the southerly side of Xxxxxxxxx Xxxxx Highway
(U.S. Route 1, or Richmond Highway), said point being a common northerly
corner between the land herein described and that of Socony Mobile Oil
Company, Inc.; thence running along the southerly side of said highway N
62 degrees 10' 01" E 191.83 feet to a point, said point being the
northwesterly corner of the land of Amoco Oil Company; thence departing
Xxxxxxxxx Xxxxx Highway and running first along the westerly boundary and
thence the southerly boundary of said Amoco Oil Company, and thence the
southerly line of the land of Universal Motor Lodge (Xxxxxx Xxxxxxx'x), et
al, S 28 degrees 28' 26" E, 100.00 feet to a point; thence S 85 degrees
55' 50" E 465.00 feet to a point, and S 28 degrees 27' 07" E 50.00 feet to
a point on the northerly line of the Xxxx Haven Country Club; thence
running along same S 61 degrees 32' 53" W, 636.61 feet to point and N 85
degrees 47' 29" W, 163.49 feet to the northeasterly corner of the Fairfax
Country Water Authority; thence running along the northerly boundary of
said land N 85 degrees 31' 43" W 110.99 feet to a point on the easterly
side of Fort Xxxx Road (Route 629); thence running with the easterly side
of said road N 04 degrees 36' 12" E, 79.03 feet to a point; thence N 85
degrees 23' 48" W, 37.00 feet to a point; and N 04 degrees 36' 12" E,
32.04 feet to the southwesterly corner of the aforementioned land of
Socony Mobile Oil Company, Inc.; thence departing Fort Xxxx Road and
running along with southerly and thence easterly boundary of said land N
49 degrees 56' 13" E, 191.21 feet to a point and N 04 degrees 45' 38" E
121.61 feet to the point of beginning and containing 4.81367 acres, more
or less.
PARCEL II:
The following non-exclusive easements as granted by Easement Agreement for
Access, Driveway and Parking dated May 30, 1985 and recorded among the
Fairfax County, Virginia Land Records on October 17, 1985 in Deed Book
6246 at Page 1052, as corrected and re-recorded among the aforesaid Land
Records in Deed Book 6498 at Page 1283, SUBJECT HOWEVER, to any terms,
reservations and limitations provided for in said Easement Agreement:
a. A non-exclusive easement and right of way of access for vehicles and
pedestrians as granted by Universal to TDC-Xxxxxxx in paragraph 1 of
said Easement Agreement;
b. A non-exclusive perpetual parking easement as granted by
Universal to TDC-Xxxxxxx in paragraph 2(b) of said Easement
Agreement;
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c. A non-exclusive perpetual easement and right of way of access for
persons, vehicles and equipment for the purpose of making and/or
maintaining landscaping improvements as granted by Universal to
TDC-Xxxxxxx in paragraph 6 of said Easement Agreement.
PARCEL III:
A perpetual non-exclusive ingress and egress easement as granted in
paragraph 1 of Easement Agreement executed by the Fairfax County Water
Authority, et al, dated October 15, 1985 and recorded among the Fairfax
County, Virginia Land Records on October 17, 1985 in Deed Book 6246 at
Page 1081, corrected and re-recorded in Deed Book 6448 at Page 1366;
SUBJECT HOWEVER, to the terms and limitations provided for in said
Easement Agreement.
PARCEL IV:
A ten foot (10') temporary grading easement as granted in paragraph 2 of
Easement Agreement executed by the Fairfax County Water Authority, et al,
dated October 15, 1985 and recorded among the Fairfax County, Virginia
Land Records on October 17, 1985 in Deed Book 6246 at Page 1081, corrected
and re-recorded in Deed Book 6448 at Page 1366; SUBJECT HOWEVER, to the
terms, limitations, termination provision, and other limitations provided
for in said Easement Agreement.
PARCEL V:
A perpetual non-exclusive ingress and egress easement as granted in
paragraph 1 of Easement Agreement executed by Belle Haven Country Club,
Inc., et al, dated October 15, 1985 and recorded among the Land Records of
Fairfax County, Virginia on October 17, 1985 in Deed Book 6246 at Page
1074, corrected and re-recorded in Deed Book 6448 at Page 1360; SUBJECT
HOWEVER, to the terms and limitations provided for in said Easement
Agreement.
PARCEL VI:
A ten foot (10') temporary grading easement as granted in paragraph 2 of
Easement Agreement executed by Belle Haven Country Club, Inc., et al,
dated October 15, 1985 and recorded among the Land Records of Fairfax
County, Virginia on October 17, 1985 in Deed Book 6246 at Page 1074,
corrected and re-recorded in Deed Book 6448 at Page 1360; SUBJECT HOWEVER,
to any termination provisions and other limitations provided for in said
Easement Agreement.
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EXHIBIT "C"
TENANT IMPROVEMENT WORK AGREEMENT
ARTICLE 1
DEFINITIONS
The terms defined in Article 1 of this Exhibit C, for all purposes of this
Exhibit C, shall have the meanings herein specified, and, in addition to the
terms defined herein, the definitions in the Basic Terms section of this Lease
and otherwise in this Lease shall also apply to this Exhibit C.
1.01. "Architectural Plans" shall mean one hundred percent (100%) fully
coordinated and complete, accurate architectural working drawings and
specifications for the tenant improvements for the Premises prepared by Tenant's
Architect including all architectural dimensioned plans showing wall layouts,
wall and door locations, power and telephone locations and reflected ceiling
plans and further including elevations, details, specifications and schedules
according to accepted AIA standards.
1.02. "Landlord's Designer" shall mean the architect or space planner
engaged by Landlord to review the Plans for Tenant's Work as contemplated by
Article 2 hereof.
1.03. "MEP Plans" shall mean one hundred percent (100%) fully coordinated
and complete mechanical, electrical an plumbing plans, schedules and
specifications for the tenant improvements for the Premises, prepared by
Tenant's MEP Engineers in accordance and in compliance with the requirements of
applicable building, plumbing, and electrical codes and the requirements of any
authority having jurisdiction over or with respect to such plans, schedules and
specifications, which are complete, accurate, consistent and fully coordinated
with and implement and carry out the Architectural Plans.
1.04. "Plans" (also known as "Tenant Improvement Plans") shall mean the
Architectural Plans together with the MEP Plans, and if applicable, the
Structural Plans.
1.05. "Structural Plans" shall mean one hundred percent (100%) fully
coordinated and complete structural plans, schedules and specifications, if any,
for the tenant improvements for the Premises, prepared by Tenant's Structural
Engineers in accordance and in compliance with the requirements of any authority
having jurisdiction over or with respect to such plans, schedules and
specifications, which are complete, accurate, consistent and fully coordinated
with and implement and carry out the Architectural Plans.
1.06. "Tenant's Architect" shall mean Xxxxxx & Xxxx.
1.07. "Tenant's Contractor" shall mean any person or firm selected by
Tenant and approved by Landlord, such approval not to be unreasonably withheld,
conditioned or delayed, to perform Tenant's Work in the Premises.
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1.08. "Tenant's MEP Engineers" shall mean the engineers engaged by Tenant
and approved by Landlord, such approval not to be unreasonably withheld,
conditioned or delayed, to prepare the MEP Plans.
1.09. "Tenant's Structural Engineers" shall mean the engineers engaged by
Tenant and approved by Landlord, such approval not to be unreasonably withheld,
conditioned or delayed, to prepare the Structural Plans.
1.10. "Tenant's Work" means the tenant improvements which are supplied,
installed, and finished by Tenant and/or Tenant's authorized representative, as
provided for hereinbelow. The design of Tenant's Work shall be consistent with
sound architectural and construction practice in first class office buildings.
ARTICLE 2
COMPLETION OF PREMISES
2.01. Tenant acknowledges that Landlord has furnished Tenant, at
Landlord's cost and expense, one (1) set of base building plans pertaining to
the Premises to assist Tenant in preparing the Plans. It is understood and
agreed that Landlord in no way warrants the accuracy of such base building plans
and Landlord shall not have any liability to Tenant, or anyone claiming through
Tenant as a result of such plans. Tenant shall perform a field verification to
independently determine the existing conditions, specifications and dimensions
of the Premises.
2.02. On or before June ___, 1994, Tenant, at Tenant's expense, shall
prepare and deliver to landlord the Architectural Plans, the MEP Plans, and if
structural work is required, the Structural Plans, stamped for permit filing,
together with any underlying detailed information Landlord may require in order
to evaluate the Plans. Tenant shall deliver any and all Plans, and all revisions
thereto to Landlord prior to submitting any of such Plans for permits. Tenant
shall promptly apply for and pay the cost of obtaining all permits and
certificates for Tenant's Work. Landlord and Tenant shall meet prior to such
delivery to discuss the schedule for completion of Tenant's Work. After
Landlord's receipt of the Plans, Landlord shall notify Tenant in writing as to
whether Landlord approves or disapproves such Plans within (5) business days of
receipt of such Plans and such approval shall not be unreasonably withheld or
conditioned. All reasonable third party costs incurred by Landlord, including
the professional fees of Landlord's Designer, which are related to the review of
the Plans shall be paid by Tenant to Landlord within ten (10) days after receipt
by Tenant of a statement of such costs.
2.03. On or before May 31, 1994, Tenant shall inform Landlord of the
general contractors from whom Tenant desires to solicit bids for Tenant's Work.
Each general contractor from whom Tenant desires to solicit a bid shall be
subject to Landlord's reasonable approval. Landlord shall notify Tenant of its
approval or disapproval of each general contractor on Tenant's list within five
(5) business days of receipt of such list. The selected general contractor (i.e.
Tenant's Contractor) shall contract directly with Tenant, but shall perform such
work in coordination with Landlord and Landlord's Designer.
2.04. If there are any significant changes in the tenant improvements
caused by Tenant from the work as reflected in the final working drawings, each
such significant change must
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receive the prior written approval of Landlord, and, in the event of any such
approved change in the working drawings, Tenant shall, upon completion of
Tenant's Work, furnish Landlord with an accurate "as drawn" plan of Tenant's
Work as constructed, which plans shall be incorporated into this Exhibit C by
this reference for all intents and purposes. Landlord reserves the right to
inspect and to be present during the performance of Tenant's Work solely for the
purpose of protecting Landlord's interest in the Property, but Landlord will
have no obligation to so inspect or be present and, if Landlord elects to so
inspect or to be present during the performance of all or any portion of
Tenant's Work, neither such inspection nor such presence shall give rise to any
liability by Landlord to Tenant or to any other person or entity.
2.05. Under no circumstances whatsoever will Tenant, or Tenant's
authorized representative, ever alter or modify or in any manner disturb any
system or installation of the Building, including the Base Building plumbing
system, Base Building electrical system, Base Building heating, ventilating, and
air conditioning systems, Base Building fire protection and fire alert systems,
Base Building maintenance systems, Base Building structural systems, elevators,
and anything located within the central core of the Building. Only under
Landlord's express written permission and under direct supervision of Landlord
or Landlord's authorized representative shall Tenant or Tenant's authorized
representative alter or modify or in any manner disturb any system or
installation of the Building which is located within the Premises, including
electrical, heating, ventilating, and air conditioning systems, and fire
protection and alert systems. For the purposes of this Section, "Base Building"
shall be defined as that portion of any Building system or component which is
within the core and/or common to and/or serves or exists for the benefit of
other tenants in the Building. Any Tenant's Work relating to Building fire and
life safety systems shall be performed by a fire and life safety subcontractor
named by Landlord and such fire and life safety subcontractor shall be employed
as a subcontractor by Tenant's Contractor, at Tenant's sole cost and expense.
2.06. All design, construction, and installation in connection with
Tenant's Work shall conform to the requirements of applicable building,
plumbing, and electrical codes and the requirements of any authority having
jurisdiction over, or with respect to, such work. Tenant and Tenant's Contractor
shall perform Tenant's Work in strict compliance with the Lease, this Exhibit C
and the Plans.
2.07. Tenant shall pay the cost of all Tenant's Work, including all work
performed by Tenant's Contractor.
ARTICLE 3
TENANT'S WORK
3.01. Tenant accepts the Premises "AS IS".
3.02. Prior to Tenant's occupancy of all or any portion of the Premises,
Tenant, at its sole cost and expense, shall:
(a) Furnish evidence reasonably satisfactory to Landlord that all Tenant's
Work has been completed and paid for in full (and such work has been reasonably
accepted by Landlord) or provide evidence that any and all liens therefor that
have been or might be filed have been
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discharged of record (by payment, bond, order of a court of competent
jurisdiction or otherwise) or waived, and that no security interests relating to
Tenant's Work are outstanding and provide final lien waivers from Tenant's
Contractor and all subcontractors;
(b) Furnish to Landlord a copy of the nonresidential Certificate of
Occupancy and all other certifications and approvals with respect to Tenant's
Work that may be required from any governmental authority and/or any board or
fire underwriters or similar body for the use and/or occupancy of the Premises;
(c) Furnish to Landlord proof of the insurance required by Paragraph 9 of
the Lease;
(d) Furnish an affidavit from Tenant's Architect certifying that all work
performed in the Premises has been completed substantially in accordance with
the Plans approved by Landlord;
3.03. Within thirty (30) days after Tenant's occupancy of all or any
portion of the Premises, Tenant, at its sole cost and expense, shall:
(a) Furnish Landlord with one (1) set of mylar transparent reproducible
"as built" drawings of the Premises;
(b) Furnish an HVAC air balancing report (reasonably satisfactory to
Landlord);
(c) Furnish Landlord with copies of all guaranties and/or warranties; and
(d) Furnish Landlord with copies of all O&M information, manuals, etc.
3.04. It shall be Tenant's responsibility to cause Tenant's Contractor and
each of Tenant's Contractor's subcontractors, to adhere to the rules and
procedures set forth in Exhibit C-1 attached hereto, and it shall be the
responsibility of Tenant's Contractor to comply with the insurance requirements
described in Exhibit C-2 attached hereto, and Tenant shall be responsible for
any violations thereof.
3.05. Tenant's Contractor shall, at no cost to Landlord, maintain and keep
in full force and effect, the insurance required under Exhibit C-2, with such
companies, and in such form and amounts as Landlord may reasonably require.
Tenant shall, at no cost to Landlord, maintain and keep in full force and
effect, the insurance required of Tenant under paragraph 9 of the Lease. Prior
to commencement of construction of the tenant improvements, Landlord shall be
provided with copies of insurance certificates indicating that coverages as
required by Exhibit C-2 hereof are in full force and effect, and copies of the
construction contract pursuant to which Tenant's Contractor is engaged in the
construction of the tenant improvements. Tenant shall provide Landlord with a
list of all subcontractors Tenant's Contractor will use in connection with the
performance of Tenant's Work as such subcontractors are selected to assist in
the performance of Tenant's Work. At such reasonable times and upon reasonable
advance oral notice to Tenant from landlord and/or at such times as any
regulatory agencies deem necessary, landlord or Landlord's agent or
representatives of such governmental agencies may enter the Premises to make
inspection of Tenant's Work. Tenant agrees to pay for any charges levied by
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governmental and/or other regulatory inspecting agencies as such charges are
levied in connection with Tenant's Work.
3.06. In connection with Tenant's rights and obligations under this
Exhibit C, Tenant will not obstruct or interfere with the rights of, or
otherwise annoy or injure, other tenants of the Building.
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EXHIBIT C-1
TENANT CONTRACTOR REQUIREMENTS
A. General
1. Any demolition, removal or other types of work, which may significantly
inconvenience other tenants or disturb building operations, must be
scheduled and performed before or after normal working hours. The property
management office shall be notified at least 24 hours prior to
commencement of such work.
2. All fire alarms testing must be performed after normal working hours
unless otherwise required by Fairfax County, Virginia, or as otherwise
approved by Landlord.
B. Prior to Commencement of Work
1. Tenant shall deliver to Landlord, for Landlord's approval, which will not
be unreasonably withheld, conditioned or delayed, a list of all the
contractors and subcontractors who will be performing the work.
2. The general contractor must submit to Landlord insurance certificates
including an indemnity hold harmless clause in accordance with the
attached insurance requirements.
3. The general contractor shall be required to obtain a performance and
payment bond for the project. Bonding companies shall be licensed in the
jurisdiction in which the Building is located. The bond premium shall be
included in all bids. Bond form and agent shall be submitted for Landlord
review prior to the start of construction.
4. Tenant shall deliver to Landlord two (2) complete sets of permit plans and
specifications properly stamped by a registered architect or professional
engineer and shall deliver to Landlord any and all subsequent revisions to
such plans and specifications.
5. It is Tenant's responsibility to obtain approval of plans and required
permits from jurisdictional agencies. Tenant must submit copies of all
approved plans and permits to the property management office and post the
original permit on the Premises prior to commencement of any work. All
work performed by a contractor or subcontractor shall be subject to
inspection by the Landlord.
C. Requirements and Procedures
1. Under no circumstances will the Tenant, or the Tenant's authorized
representatives or Tenant's contractor, ever alter or modify or in any
manner disturb any building system or its installation, including the Base
Building plumbing system, Base Building electrical system, Base Building
heating, ventilating, and air conditioning system, Base Building
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fire protection and fire alarm system, Base Building maintenance system,
Base Building structural systems, elevators, or anything located within
the central core of the building without the Landlord's express written
permission or direct supervision of the Landlord or the Landlord's
authorized representatives.
2. All design, construction, and installation shall conform to the
requirements of applicable building, plumbing and electrical codes and the
requirements of any authority having jurisdiction over such work.
3. The Landlord shall be entitled to supervise all demolition.
4. Tenant is responsible for installation of the Tenant's telecommunication
systems.
5. At such time as other tenants shall occupy the Building, core drilling or
cutting shall be permitted only between the hours of 6:00 p.m. and 8:00
a.m. Monday through Friday and 1:00 p.m. on Saturday through 8:00 a.m. on
Monday. All core drilling/cutting must be approved by the Base Building
structural engineer. X-rays of areas may be required at the Landlord's
engineer's discretion. The property management office must be notified at
least twenty-four (24) hours prior to commencement of such work.
6. Prior to the initiation of any other tenant construction activity in the
Building, Tenant shall make arrangements for use of the loading area and
elevators with the property management office. Upon initiation of
construction activity by any other tenant in the Building, Tenant shall
make arrangements for use of the loading area and elevators with the
property management office. Notwithstanding the foregoing, Tenant shall
not have a priority over future tenants and/or their contractors in the
use of the elevators and loading area. No material or equipment shall be
carried under or on top of the elevators. If the building manager deems an
elevator operator is required, such operator shall be provided by the
general contractor at the general contractor's expense.
7. Tie-in of either fire alarm or sprinkler/fire suppression systems shall
not occur until all other work related to such systems has been completed.
Only Landlord's contractor or designer (or a Landlord approved sprinkler
subcontractor) shall make the tie-in to the Base Building fire alarm and
sprinkler/fire suppression system.
8. If a shutdown of risers and mains for electric, HVAC sprinkler, fire
protection and plumbing work is required, work shall be scheduled with
twenty-four (24) hour advance notice. Drain downs or fill-ups of the
sprinkler system or any other work to the fire protection system which may
set off an alarm, must be accomplished between the hours of 6:00 p.m. and
8:00 a.m. Monday through Friday and 1:00 p.m. on Saturday through 8:00
a.m. on Monday.
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9. The general contractor must:
(a) Properly supervise construction on the Premises at all times.
(b) Police the job at all times, continually keeping the Premises and
Property orderly. All Tenant materials are to be reasonably neatly
stacked.
(c) Maintain cleanliness and protection of all areas, including elevator
and lobbies.
(d) Supply I.D. badges to all construction workers. Any construction
worker without a valid badge will be escorted from the building.
(e) If other tenants occupy the building, provide the property
management office with a list of those who are expected on the job
after hours or during a weekend. Tenant shall use its best efforts
to submit such list by noon on the day in which after hours work is
scheduled.
(f) Arrange for telephone service if necessary. The property management
and security telephones will not be available for use by
contractors.
(g) Block off supply and return grills, diffusers and ducts to keep dust
from entering into the Building air system.
(h) Avoid and prevent the disturbance of other tenants.
10. If Tenant's general contractor is negligent in any of its
responsibilities, Landlord shall give Tenant notice of such negligence and
a reasonable opportunity to cure such negligence (except in the case of
emergencies or potential harm to persons or damage to property) at
Tenant's sole expense. If Tenant fails to timely cure such negligence,
Landlord may elect to correct the same and the Tenant shall be charged for
the corrective work.
11. All equipment and material installation must be equal to the standards of
workmanship and quality established for the Building.
12. Upon completion of the work, the Tenant shall submit to the property
management office properly executed forms or other documents indicating
approval by all relevant agencies of the local government having
jurisdiction over the Building whose approval is required for Tenant's use
and occupancy of the Premises.
13. The Tenant shall submit to the property management office a final
"as-built" set of drawings showing all items of work in full detail.
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14. Contractors who require security for the Premises during construction
shall provide same at their sole expense. The Landlord will not be liable
for any stolen items from the Tenant's work area. It is suggested that the
contractor and subcontractors use only tools and equipment bearing an
identification xxxx denoting the contractor and subcontractor's name.
15. All contractors/subcontractors/employees will enter and exit through the
loading area, and use the freight elevator. Building passenger elevators
may not be used.
16. All contractors are advised of the following: If any part of a
contractor's work depends for proper execution or result upon the work of
any other separate contractor, the contractor shall inspect and promptly
report to the property management office any apparent discrepancies or
defects in such work that render it unsuitable for such proper execution
and results. Failure of a contractor to so inspect and report shall
constitute an acceptance of the other contractor's work as fit and proper
to receive his work.
17. Prior to the commencement of construction, Landlord and Tenant will
inspect the Building and Tenant will prepare and deliver to Landlord a
memorandum setting forth any pre-construction damages to the Building. Any
damage caused by the contractor to existing work of others shall be
repaired or replaced at the sole cost and expense of the contractor to the
satisfaction of the Landlord.
18. The contractor shall be responsible for the protection of finished
surfaces of public areas (floors, walls, ceiling, etc.).
19. In the event Landlord deems Tenant's Work to be excessive in electrical
usage, Landlord may at any time during the performance of Tenant's Work,
require that Tenant install, at Tenant's sole cost and expense, electric
submeters on each floor of the Premises. All electric power to Tenant's
contractor and subcontractors' tools shall be powered through such
submeters. Tenant shall pay Landlord for use of such electric power within
ten (10) days after written demand. If Tenant requests that Landlord
provide central heating or air conditioning, Tenant shall be charged the
then prevailing hourly rate for such central heating or air conditioning
service.
20. Contractors will be permitted to use restroom facilities only on the floor
which construction services are being provided. Any damages to these
facilities will be repaired by the contractor at its sole cost and
expense. Landlord will provide no janitorial services to such restrooms.
21. The contractor must arrange to have freight or stock received by its own
forces. Contractors and subcontractors are required to request loading
area space for offloading
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materials and/or equipment required to construct the Tenant's space. All
requests are to include the name of the supplier/hauler, time of expected
arrival and departure from the Landlord's loading area, name of
contractors and subcontractors designated to accept delivery, and the
location that the materials/equipment will be transported by the
contractor/subcontractor. Disregard for this requirement will result in
those vehicles being moved at the vehicle owner's expense. Under no
circumstances will a vehicle be parked and left in the loading area. The
contractor must provide for storage and removal of all trash at the
contractor's expense. The contractor is not allowed to use the building
trash dumpster under any circumstances. Notwithstanding the foregoing,
prior to the Commencement Date, Tenant's contractors and subcontractors
may only park in the parking area on the Premises specifically designated
by Landlord. Subsequent to the Commencement Date, Tenant's contractors and
subcontractors may only park in parking areas specifically designated by
Landlord. Any building materials left in the loading area, service
corridor, stairwell, on the site, etc. will be removed from the Property
at the contractor's expense. Upon delivery of materials to the loading
area, tools, supplies, equipment, etc., the transport vehicle must be
removed from the loading area prior to the materials being carried to the
work-site.
D. Completion of the Work
1. Before construction can be considered complete, the contractor must submit
the following to the property management office:
(a) Copies of all required certificates from the governmental or
regulatory authorities.
(b) Copies of all guaranties and/or warranties.
(c) An HVAC air balancing report.
(d) A final release and waiver of lien (contractor, subcontractor,
suppliers, etc.)
(e) As built drawings.
(f) Copies of all O&M information, manuals, etc.
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EXHIBIT C-2
INSURANCE REQUIREMENTS
The contractor shall, throughout the duration of any contract or any work
authorized under contract, at its expense, carry and from time to time renew
Worker's Compensation Insurance, Public Liability Insurance in the amount of
$2,000,000, single limit covering both Bodily Injury and Property Damage,
including coverage for the below noted indemnity agreement in such amounts as
may be approved by the Landlord. An insurance certificate in the customary form,
naming WHT Investors, Inc. and Landlord as additional insured and evidencing
that premiums therefore have been paid, shall be delivered to Landlord
simultaneously with the execution of any contract and prior to performing any
work authorized under a contract and within thirty (30) days prior to expiration
of such insurance a like certificate shall be delivered to Landlord evidencing
the renewal of such together with evidence satisfactory to Landlord of payment
of the premium. All certificates must contain a provision that if such policies
are canceled or changed during the periods of coverage as stated therein, in
such a manner as to affect this certificate, written notice will be mailed to
the Landlord by registered mail ten (10) days prior to such cancellation or
change.
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EXHIBIT "D"
FIRST AMENDMENT TO LEASE
THIS AGREEMENT, made this ____ day of ____________, 1994 by and between
WHT REAL ESTATE LIMITED PARTNERSHIP, a Delaware Limited Partnership,
(hereinafter referred to as "Landlord") and SOFTWORKS, INC., incorporated in the
State of Maryland, hereinafter referred to as ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant did enter into that certain Lease Agreement,
dated ______________, for the demise of Xxxxx 000 xxx Xxxxx 000, located at 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, ("Premises"), which said Premises,
and any and all improvements located thereon are more particularly described
therein (hereinafter the "Lease"); and
WHEREAS, all terms defined in the lease shall have the same meanings when
referred to herein; and
WHEREAS, Landlord has requested that Tenant acknowledge the "Commencement
Date" of the Lease, pursuant to and in accordance with Paragraph 5 thereof, and
Landlord has further requested Tenant to acknowledge and confirm (i) its
obligations attendant upon such Commencement Date, and (ii) the Expiration Date
of the Lease, pursuant to and in accordance with Paragraph 5 thereof; and
WHEREAS, Tenant has agreed to acknowledge said Lease commencement and
expiration dates.
NOW THEREFORE, in consideration of the premises and the mutual promises
and covenants herein contained, Landlord and Tenant hereby agree as follows:
1. The Commencement Date of the Lease shall be _____________, and the
Expiration Date of the Lease shall be ______________, and such
respective dates of commencement and expiration of the Lease shall,
if different from the dates designated in Item (g) of Basic Terms of
the Lease, be substituted therefor. It is understood and agreed by
Landlord and Tenant that any and all of Tenant's covenants and
obligations as by the Lease provided shall become effective as of
the said Commencement Date, including, but not limited to, the
payment of Minimum Annual Rent, additional rent, insurance, and any
and all other Rent as designated in Item (h) of Basic Terms of the
Lease.
2. The pro-rated monthly rent due for the first partial month's
occupancy (September 12 through September 30) shall be equal to
$15,697.80 and shall be due and payable on October 1, 1994. Landlord
hereby acknowledges receipt of the first full month's Rent due under
the terms of
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this Lease, which Rent shall be applied toward rent due for October.
Thereafter all monthly Rent shall be due and payable in advance on
the first day of each month during the Term of the Lease. In
addition, all annual increases shall commence beginning on October
1, 1995 and continue each year thereafter as defined in the Lease.
3. EXCEPT as hereby modified and amended, all other terms, provisions,
covenants and conditions of the Lease shall remain in full force and
effect.
IN WITNESS WHEREOF, Landlord and Tenant have caused this First Amendment to
lease to be executed by their duly authorized representatives on the day and
year above written.
WITNESS: LANDLORD:
WHT REAL ESTATE
LIMITED PARTNERSHIP
By: WHT Investors, Inc., general
partner
By: By:
------------------------
Its:
TENANT:
WITNESS: SOFTWORKS, INC.
By: By:
------------------------ ---------------------------
Its:
---------------------------
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EXHIBIT "E"
CLEANING AND JANITORIAL SERVICES
I. MAIN LOBBIES, ELEVATOR LOBBIES, STAIRWAYS, ELEVATORS
Nightly Services (Five nights per week)
1. Gather all wastepaper and place for disposal. Replace liner bags from
customer's stock or provide and back charge.
2. Dust mop title or hard surfaced floors.
3. Vacuum all carpet
4. Spot clean all carpet.
5. Empty and wash all ashtrays.
6. Wash entrance door glass, spot clean partition glass.
7. Dust all horizontal surfaces. Spot wash to remove spillage.
8. Vacuum all walk-on mats.
9. Clean and polish elevator doors, tracks, cab stainless or brass. Vacuum
carpet and spot clean.
10. Damp mop tile or hard surfaced floors.
11. Spray buff tile or hard surfaced floors.
12. Spot clean all wall surfaces to remove smudges and hand prints.
13. Wash and sanitize drinking fountains.
Weekly Services (One time per week)
1. Dust mop and damp mop stairways.
2. Dust down banisters and risers in stair-ways.
3. Bonnet clean carpeted lobbies.
Monthly Services
1. Wash both sides of all interior and exterior glass (except for the
interior of glass in leased space).
Semi Annual Services (Two times per year)
1. Strip, thoroughly rinse, and apply two coats of sealer, and two coats of
finish to tile and hard surfaced floors.
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II. GENERAL OFFICE AREA
Nightly Services (Five nights per week)
1. Gather all wastepaper and place for disposal. Replace liner bags from
customer's stock or provide and back charge.
2. Empty and wash all ashtrays.
3. Dust mop all tile and hard surfaced floors.
4. Vacuum all carpeted traffic pattern areas.
5. Spot clean carpeted areas.
6. Dust desks, chairs, tables, file cabinets, and telephones.
7. Remove fingerprints from doors, light switches, and partition glass.
8. Wash all drinking fountains.
Weekly Services (one time per week)
1. Dust low and high horizontal and vertical surfaces.
2. Detail vacuum corners, edges, and hard to reach areas not vacuumed
nightly.
3. Dust mop, damp mop, and spray buff tile floors.
4. Vacuum all fabric office furniture, including chairs and couches.
Monthly Services (Every two months)
1. Refinish all tile floors with one (1) coat of floor finish.
2. Vacuum draperies and ceiling vents.
Quarterly Services
1. Wash both sides of all exterior glass.
Annual Services (Where applicable)
1. Strip, thoroughly rinse, and apply two (2) coats of sealer and two (2)
coats of finish to tile floors.
2. Wash ceiling lights to include lenses, bulbs, and pans.
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III. RESTROOMS
Nightly Services (Five nights per week)
1. Clean and sanitize wash basins, toilets, and urinals.
2. Clean and polish dispensers, chrome fittings, mirrors, and entrance doors.
3. Dust mop and wet mop floors using a disinfectant mopping soap.
4. Dust ledges and partitions.
5. Fill dispensers from stock. Towels, tissue, sanitary napkins, and hand
soap to be furnished by customer or provided and back charged.
6. Report any fixture not working properly to building management.
Weekly Services (one time per week)
1. Spot wash partitions, walls and doors.
Monthly Services (One time per month)
1. Machine scrub ceramic tile floors.
2. Dust ceiling vents.
3. Hand wash all ceramic walls.
IV. LUNCHROOM
Nightly Services (Five nights per week)
1. Empty trash receptacles and damp wipe outside of container.
2. Dust mop tile or hard surfaced floors.
3. Damp mop spills from tile or hard surfaced floors.
4. Vacuum carpet and spot clean.
5. Remove spots from walls in eating area.
6. Dust chairs and counters.
7. Wash table tops to remove spillage.
8. Empty and wash ashtrays.
Weekly Services (One time per week)
1. Dust mop, damp mop, and spray buff tile or hard surfaced floors.
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Semi Monthly (Six times per year)
1. Refinish all tile or hard surfaced floors with one (1) coat of floor
finish.
Annual Services (one time; per year)
1. Strip, thoroughly rinse, apply two (2) coats of sealer and two (2) coats
of floor finish to tile or hard surfaced floors.
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EXHIBIT "F"
RULES AND REGULATIONS
This Exhibit "F" is attached to and made a part of that Agreement of Lease
dated _______________, 1994 (the "Lease"), between WHT REAL ESTATE LIMITED
PARTNERSHIP, a Delaware Limited Partnership ("Landlord"), and SOFTWORKS, INC.,
("Tenant"). Unless the context otherwise requires, the terms used in this
Exhibit that are defined in the Lease shall have the same meaning as provided in
the Lease.
The following rules and regulations have been formulated for the safety
and well-being of all tenants of the Building and to insure compliance with
governmental and other requirements. Strict adherence to these rules and
regulations is necessary to guarantee that each and every tenant will enjoy a
safe and undisturbed occupancy of its premises in the Building. Any continuing
violation of these rules and regulations by Tenant shall constitute a default by
Tenant under the Lease.
Landlord may, upon request of any tenant, waive the compliance by such
tenant of any of the following rules and regulations, provided that (i) no
waiver shall be effective unless signed by Landlord's authorized agent, (ii) any
such waiver shall not relieve such tenant from the obligation to comply with
such rule or regulation in the future unless otherwise agreed to by Landlord,
(iii) no waiver granted to any tenant shall relieve any other tenant from the
obligation of complying with these rules and regulations, unless such other
tenant has received a similar written waiver from Landlord, and (iv) any such
waiver shall not relieve such tenant from any liability to Landlord from any
loss or damage occasioned as a result of such tenant's failure to comply.
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stair-ways, corridors, roof, halls and other parts of the Building
not exclusively occupied by any tenant shall not be obstructed or
encumbered by any tenant or used for any purpose other than ingress
and egress to and from each tenant's premises. Landlord shall have
the right to control and operate the public portions of the
Building, and the facilities furnished for common use of the
tenants, in such manner as Landlord deems best for the benefit of
the tenants generally. No tenant shall permit the visit to its
premises of persons in such numbers or under such conditions as to
interfere with the use and enjoyment of the entrance, corridors,
elevators and other public portions or facilities of the Building by
other tenants.
2. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of Landlord.
No drapes, blinds, shades or screens shall be attached to or hung
in, or used in connection with, any window or door of the Premises,
without the prior written consent of Landlord which consent shall
not be unreasonably withheld. All awnings, projections, curtains,
blinds, shades, screens and
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other fixtures must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
3. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Building or any tenant's
premises, nor placed in the halls, corridors or vestibules without
the prior written consent of Landlord.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were
constructed, and no debris, rubbish, rags or other substances shall
be thrown therein. All damage resulting from any misuse of the
fixtures shall be borne by the tenant who, or whose servants,
employees, agents, visitors or licensees, shall have cause the same.
5. There shall be no marking, painting, drilling into or defacement of
the Building or any part of any tenant's premises that is visible
from public areas of the Building. Tenants shall not construct,
maintain, use or operate within their respective premises any
electrical device, wiring or apparatus in connection with a loud
speaker system or other sound system, except as reasonably required
as part of a communication system approved prior to the installation
thereof by Landlord. No such loud speaker or sound system shall be
constructed, maintained, used or operated outside the premises of
any tenant.
6. No bicycles or vehicles and no animals, or pets of any kind (except
a bird can be allowed entry for a period of one day every other week
provided it is confined and attended to at all times while in the
Building) shall be brought into or kept in or about the Building or
any tenant's premises, except that this rule shall not prohibit the
parking of bicycles or vehicles in areas specifically designated
therefor by Landlord. No cooking or heating of food prepared in
portable microwave ovens (provided that no odors are emitted). No
tenant shall cause or permit any unusual or objectionable odors to
be produced upon or permeate from its premises. Vending machines
shall be permitted with Landlord's prior written consent.
7. No space in the Building shall be used for the manufacture of goods
for sale in the ordinary course of business, or for the sale at
auction of merchandise, goods or property of any kind. Furthermore,
the use of its premises by any tenant shall not be changed without
the prior approval of Landlord.
8. No tenant shall make any unseemly or disturbing noises or disturb or
interfere with the occupants of the Building or neighboring
buildings or premises or those having business with them, whether by
the use of any musical instrument, radio, talking machine,
whistling, singing, or in any
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other way. No tenant shall throw anything out of the doors or
windows or into or down the corridors or stairs of the Building.
9. No flammable, combustible or explosive fluid, chemical or substance
shall be brought into or kept upon the Premises.
10. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in
any existing locks or the locking mechanism therein, without
Landlord's approval. The doors leading to the corridors or main
halls shall be kept closed during business hours except as they may
be used for ingress or egress. Each tenant shall, upon the
termination of its tenancy, restore to Landlord all keys of stores,
offices, storage and toilet rooms either furnished to, or otherwise
procured by, such tenant, and in the event of the loss of any keys
so furnished, such tenant shall pay to Landlord the replacement cost
thereof. Tenant's key system, shall be separate from that for the
rest of the Building.
11. Landlord reserves the right to inspect all freight to be brought
into the Building and to exclude from the Building all freight which
violates any of these rules and regulations of the Lease.
12. No tenant shall pay for any employees on its premises, except those
actually working for such tenant's premises.
13. Landlord reserves the right to exclude from the Building at all
times any person who is not known or does not properly identify
himself or herself to the Building management or watchman on duty.
Landlord may, at its option, require all persons admitted to or
leaving the Building between the hours of 6:00 p.m. and 7:00 a.m.,
Monday through Friday, and at any hour on Saturdays, Sundays and
legal holidays, to register. Each tenant shall be responsible for
all persons for whom it authorizes entry in the Building, and shall
be liable to Landlord for all acts or omissions of such persons.
14. The Premises shall not, at any time, be used for lodging or sleeping
or for any immoral or illegal purposes.
15. Tenant assumes full responsibility for protecting the Premises from
theft, and each tenant, before closing and leaving the Premises at
any time, shall see that all doors and windows are closed and
locked, and all lights turned off.
16. Landlord's employees shall not perform any work or do anything
outside of their regular duties, unless under special instruction
from the management of the Building. The requirements of tenants
will be attended to only upon application to Landlord, and any such
special requirements shall be billed to Tenant and paid when the
next installment of rent is due) in accordance with the schedule of
charges maintained by Landlord from
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time to time or at such charge as is agreed upon in advance by
Landlord and Tenant.
17. Canvassing, soliciting and peddling in the Building and on the
Property are prohibited and each tenant shall cooperate to prevent
the same. Peddlers, solicitors and beggars shall be reported to the
Building manager or as Landlord otherwise requests.
18. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or others in the
delivery or receipt of merchandise, any hand trucks, except those
equipped with rubber tires and side guards. Tenant shall be
responsible to Landlord for any loss or damage resulting from any
deliveries made by or for Tenant to the Building.
19. Mats, trash or other objects shall not be placed in the public
corridors of the Building.
20. Landlord does not maintain suite finishes which are non-standard,
such as kitchens, bathrooms, wallpaper, special lights, etc.
However, should the need arise for repair of items not maintained by
Landlord, Landlord will arrange for the work to be done at Tenant's
expense.
21. Drapes installed by Landlord for the use of Tenant or drapes
installed by Tenant, with Landlord's approval, which are visible
from the exterior of the Building, must by cleaned by Tenant at
least once a year, without notice, at the tenant's own expense.
22. The Building directory located in the Building lobby as provided by
Landlord shall be available to Tenant solely to display its name and
location in the Building, which display shall be as directed by
Landlord.
23. Tenant shall not cause any unnecessary janitorial labor or services
by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness.
24. Tenant shall not install linoleum, tile, carpet or other floor
covering so that the same shall be affixed to the floor of the
Premises in any manner except as approved by Landlord, which
approval shall not be unreasonably withheld.
25. No furniture, packages, supplies, equipment or merchandise will be
received in the Building or carried up or down in the elevators,
except between such hours and in such elevators and other such other
conditions as shall be designated by Landlord.
26. Tenant shall not waste heat or air-conditioning and shall cooperate
fully with Landlord to assure the most effective operation of the
Building's
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heating and air-conditioning, and shall refrain from attempting to
adjust any controls other than room thermostats installed for
Tenant's use.
27. Landlord shall have sole power and discretion to control the
quantity, size, location, and design of all tenant identification
signage. No such signage shall be erected without Landlord's written
consent.
28. The loading dock area is exclusively reserved for authorized traffic
and Tenant shall not use same for temporary parking.
29. No eating, drinking, sleeping, or loitering shall be permitted in
the lobby areas.
30. Landlord may from time to time alter or amend these Rules and
Regulations, and Tenant shall comply with the Amended Rules and
Regulations.
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EXHIBIT "G"
TENANT ESTOPPEL CERTIFICATE
TO: ______________________________________
RE: Property Address: ____________________
Lease Date: __________________________
Between: _____________________________, Landlord
and __________________________________, Tenant
Rentable Area Leased: ________________
Suite No. ____________________________
Floor: _______________________________
The undersigned, Tenant under the above-referenced lease ("Lease"),
certifies to ____________________, the following:
1. The above-described Lease has not been canceled, modified, assigned,
extended or amended except as follows:
_________________________________________________________________________
2. There is no prepaid rent, except $__________ and the amount of security
deposit is $____________.
3. We took possession of the Premises on ______________ and commenced (or
will commence) to pay Rent on __________________, 19 , and has been paid
through ___________________________.
4. The Lease terminates on _______________ and we have the following
renewal option(s) _______________________________________________________.
5. All work to be performed for us under the Lease has been performed as
required and has been accepted by us, except ___________________________.
6. The Lease is: (a) in full force and effect; (b) free from default; and
(c) we have no claims against the Landlord or offsets against Rent.
7. The undersigned has received no notice of prior sale, transfer or
assignment, hypothecation or pledge of the Lease or of the Rent secured
therein other than to you, except, ____________________________________.
8. That the Premises as let are being used for the purpose as described in
the Lease.
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If we are a corporation, the undersigned is a duly appointed officer of
the corporation signing this certificate and is the incumbent in the office
indicated under (his) (her) name.
In any event, the undersigned individual(s) (is) (are) duly authorized to
execute this certificate.
Dated this ________ day of ________________, 19__.
TENANT:
___________________________
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INDEX
Page
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1. Basic Terms
2. Effect of Reference to Basic Terms
3. Lease of Premises
4. Completion by Tenant
5. Term
6. Use of Premises
7. Rent
8. Security Deposit
9. Insurance and Indemnification
10. Damage by Fire or Other Casualty; Casualty Insurance
11. Condemnation
12. Non-abatement of Rent
13. Repairs and Maintenance
14. Utilities and Services
15. Governmental Regulations
16. Directory; Signs
17. Alterations and Additions
18. Landlord's Right of Entry
19. Quiet Enjoyment
20. Assignment and Subletting
21. Subordination
22. Tenant's Certificate
23. Surrender
24. Defaults; Remedies
25. Bankruptcy or Insolvency; Assumption; Adequate Protection
26. Interpretation
27. Definition of Landlord; Landlord's Liability
28. Notices
29. Brokerage
30. Relocation of Tenant
31. Guarantee
Addendum to Agreement of Lease
SCHEDULE OF EXHIBITS
"A" Floor Plans
"A-1" Computer/Equipment Inventory
"B" Description of Property
"C" Tenant Improvement Work Agreement
"D" First Amendment to Lease
"E" Cleaning and Janitorial Services
"F" Rules and Regulations
"G" Tenant Estoppel Certificate
