Exhibit 10.8
SECOND AMENDMENT TO LEASE
(EXTENSION)
THIS SECOND AMENDMENT TO LEASE ("Second Amendment") is made as of the 23rd
day of February, 2004, by and between Teachers Insurance and Annuity
Association, a New York corporation ("Landlord") and Aspect Systems, Inc., an
Arizona corporation ("Tenant")
RECITALS:
A. Landlord and Tenant entered into a certain Lease (the "Lease") dated as
of November 4, 1999, and amended by that First Amendment to Lease dated March
10, 2000 (collectively the "Lease") whereby Landlord leased to Tenant certain
premises (the "Premises") known as Suites 1, 2, 3, 6, 9, & 10 of the certain
building (the "Building") known as East Valley Commerce Plaza and located at 325
- 372 East Elliot Road, Chandler, Arizona. The Premises contain approximately
23,264 rentable square feet.
B. The Lease by its terms is scheduled to expire on December 31, 2004
("Prior Expiration Date") and the parties desire to extend and modify the Lease,
all on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual agreements herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
1. Extension. The term of the Lease is hereby extended from the Prior
Expiration Date so as to expire on November 30, 2007, (which extended period
shall be referred to herein as the "Extended Expiration Date"), unless sooner
terminated in accordance with its terms. The Commencement Date of this Second
Amendment shall be June 1, 2004.
2. Base or Minimum Rent. All terms and conditions contained in the Lease
shall continue to apply with full force and effect during the aforementioned
Extended Term, except that the base or monthly rent shall be modified for the
period from June 1, 2004, to the Prior Expiration Date and thereafter shall be
increased according to the following Base Rent schedule:
06/01/2004 - 08/31/2004 $ 00.00 per month (NNN) Triple Net*
09/01/2004 - 08/31/2005 $14,423.68 per month (NNN) Triple Net*
09/01/2005 - 10/31/2006 $15,121.60 per month (NNN) Triple Net*
11/01/2006 - 07/31/2007 $15,819.52 per month (NNN) Triple Net*
08/01/2007 -11/30/2007 $16,517.44 per month (NNN) Triple Net*
*plus applicable rental taxes
3. Improvements. No promises by Landlord to alter, remodel, improve,
repair, redecorate or clean the Premises, or any part thereof, have been made,
except as expressly set forth herein, and no representation respecting the
condition of the Premises or the Building or with respect to the suitability or
fitness of either for any purpose, has been made to Tenant. Landlord shall
provide a Tenant Improvement allowance of $139,584.00 to perform certain
leasehold improvement work in the Space (the "Space Improvements"). The Tenant
Improvement Allowance may be used for the following items:
o Space planning, construction drawings and complete architectural
services
o Building permits and associated fees
o Standard office improvements including but not limited to ceiling
grid, light fixtures, partitions, doors, doorframes and associated
hardware, carpet and other typical finished floor coverings, and
millwork
o Heating, ventilating, and associated work ("HVAC") and insulation in
the Premises
o Any costs related to moving furniture and reinstallation
post-construction
4. Operating Expenses. Landlord agrees that the amount payable by Tenant
for Tenant's Proportionate Share of Basic Operating Cost increases for any
calendar year falling within the term of this Lease shall not exceed the greater
of 105% of the amount payable by Tenant for Tenant's Proportionate Share of
Basic Operating cost for the previous calendar year. Notwithstanding the
foregoing to the contrary, there shall be no limit whatsoever on Tenant's
obligations to pay Tenant's Proportionate Share of Basic Operating Cost
increases relating to increases in real estate taxes, utility costs or insurance
costs.
5. Tenant Late Fee Arrearage. Effective upon execution of this Second
Amendment, Landlord agrees to waive any outstanding charges for late fees and
interest claimed to be due by Landlord from Tenant and as of January 31, 2004
Tenant is deemed to be current on their existing rent obligation.
6. Whole Agreement. This Agreement sets forth the entire agreement between
the parties with respect to the matters set forth herein. There have been no
additional oral or written representations or agreements. As extended and
amended herein, the Lease between the parties shall remain in full force and
effect. In case of any inconsistency between the provisions of the Lease and
this Agreement, the latter provisions shall govern and control. Under no
circumstances shall this Agreement be deemed to grant any right to Tenant to
further extend the Lease, and any options to extend or renew contained in the
Lease are hereby deleted unless specifically described herein.
7. Not An Offer. This Agreement shall not be binding until executed and
delivered by both parties. Landlord shall have fifteen (15) business days upon
receipt of this Agreement signed by Tenant to counter-execute and return an
original copy hereof to Tenant or this Agreement and any terms contained herein
shall be considered null and void and of no further force and effect.
8. Right of First Offer for Expansion Space. For purposes of this Lease,
"Expansion Space" shall mean any contiguous space in the Building. Subject to
the rights of existing tenants whose leases pre-date this Lease and provided
Tenant is not in default under this Lease at the time the Expansion Space
becomes available beyond any notice and cure period, or at any time through and
including execution of a lease amendment by the Landlord for the subject space,
Tenant shall have a one-time right of first offer to lease the Expansion Space,
such right commencing on the Commencement Date of this Lease and expiring on the
last day of the lease term, subject to the following conditions. Landlord shall
provide Tenant with written notice of the availability of all or a portion of
the Expansion Space. Landlord shall provide Tenant with Landlord's quotation of
the Base Rent, Tenant Improvements and Concessions available for the Expansion
Space, which shall be that monthly base rental rate per square foot and other
material lease terms which Landlord is willing to quote to and accept from a
third party for a lease with respect to the Expansion Space, subject to any
additional rent or rent escalation provisions and factors which Landlord is
willing to quote to and accept from such third party, including but not limited
to, such provisions and factors based on increases in operating costs, taxes and
the Consumer Price Index ("Landlord's Expansion Space Rent"). Within ten (10)
business days of such notification, Tenant shall notify Landlord in writing sent
certified mail, return receipt requested, with postage ,prepaid thereon that it
elects to exercise its right of first offer for the Expansion Space. If Tenant
does not so notify Landlord, Tenant will be deemed to have forever waived its
right of first offer respecting all Expansion Space. Rent for the Expansion
Space shall be in the amount of Landlord's Expansion Space Rent, for a term
which is coterminous with the term of this Lease. If Tenant fails to execute and
deliver an amendment to this Lease consistent with the foregoing within fifteen
(15) business days after receipt by Tenant of the subject lease amendment, then
Tenant's previous exercise of its right to lease the Expansion Space shall be
deemed null and void and Landlord shall thereafter have the right to let the
space to any third party tenant. The rights of Tenant under this Article are
personal and may not be assigned to or exercised by any other party.
In the event Tenant exercises any Right of First Offer for Expansion
Space, all of the terms and provisions of this Lease shall be applicable to the
Expansion Space thereby included in the Premises, except that (i) Tenant shall
not be entitled to any rent abatement for the Expansion Space under Article II.
of this Lease and (ii) the annual rate of Base Rent for the Expansion Space, as
adjusted based on increases
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in operating costs, taxes and the Consumer Price Index, shall be equal to the
amount of Landlord's Expansion Space Rent as defined above.
In the event Tenant exercises the Right of First Offer for Expansion
Space, Landlord and Tenant shall promptly execute and deliver an amendment to
this Lease reflecting the inclusion of the Expansion Space in the Premises on
the terms herein provided.
The Right of First Offer for Expansion Space shall automatically terminate
upon the earlier to occur of (i) the expiration or termination of this Lease,
(ii) the termination of Tenant's right to possession of the Premises, (iii) the
assignment of this Lease by Tenant or the sublease by Tenant of the Premises, or
any part thereof, (iv) the failure of Tenant to exercise any right to lease
space under its Right of First Offer for Expansion Space, or (v) the occurrence
of an Event of Default under the Lease beyond any notice and cure period.
9.01 Renewal Option. Tenant shall have an option (the "Renewal Option") to
renew the initial term with respect to all (but not less than all) of the
Premises demised under or pursuant to this Lease as of the expiration date of
the Term for one additional term (the "Renewal Term") of one (1) three (3) year
term, commencing on the day immediately following the expiration date of the
initial Term, under the following terms and conditions:
(1) Tenant gives Landlord written notice of its election to exercise
the Renewal Option no later than the date which is two hundred seventy (270)
days prior to the expiration date of the initial Term;
(2) Tenant is not in breach or default under this Lease beyond any
notice and cure period on the date Tenant exercises the Renewal Option.
9.02 Term. If Tenant timely and properly exercises the Renewal Option in
accordance with the provisions of Section 9.01:
(1) The Rent payable for the Renewal Term shall be based on the then
prevailing rent for similar space in the market for similar properties. For
purposes of the preceding sentence, "prevailing rental rate" shall mean the rate
for reasonably comparable for leases approximately as long, and commencing at
approximately the same time, as the Renewal Term, for comparable buildings in
the market. Landlord's good faith determination of the "prevailing rental rate"
shall be conclusive and binding as to Landlord and Tenant. However, if Tenant
does not agree in writing with Landlord's "prevailing rental rate", Tenant and
Landlord shall hire qualified real estate brokers in the Phoenix, Arizona market
to represent their interests respectively in providing evidence to the parties
of the average market rental rates and terms for leases being signed in
comparable buildings in the market which the mean numbers shall be used to
conclusively determine the "prevailing market rate". If the brokers hired by the
Tenant and Landlord cannot agree, then they shall hire a third unrelated broker
to make the final determination, which shall be binding on the parties. If
Tenant timely and properly exercises the Renewal Option, Landlord agrees to give
Tenant written notice setting forth the prevailing rental rate, which notice
shall be given within thirty (30) days of Tenant's notice.
(2) Tenant shall have no further options to renew the initial Term
of this Lease beyond the expiration date of the Renewal Term.
(3) Landlord will not be required to give any economic concession in
connection with the exercise of this option other than those which are being
offered in the market at such time. Without limiting the generality of the
foregoing, Landlord will not be obligated to perform or give an allowance for
leasehold improvements other than that which is being offered in the market at
such time.
(4) Except as otherwise provided herein or as negotiated between the
parties at the time of the renewal, all of the terms and provisions of this
Lease shall remain the same and in full force and effect during the Renewal
Term.
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9.03 Amendment. If Tenant exercises the Renewal Option, Landlord and
Tenant shall execute and deliver an amendment to this Lease (or, at Landlord's
or Tenant's option, a new lease on the form then in use for the Building)
reflecting the lease of the Premises by Landlord to Tenant for the Renewal Term
on the terms provided above, which amendment (or new lease, as the case may be)
shall be executed and delivered prior to the commencement date of the Renewal
Term.
9.04 Termination. The Renewal Option shall automatically terminate and
become null and void and of no force or effect upon the earlier to occur of (1)
the expiration or termination of this Lease, (2) the termination of the Tenant's
right to possession of the Premises, (3) the assignment of this Lease by Tenant,
(4) the sublease by Tenant of all of the Premises, or (5) the failure of Tenant
to timely or properly exercise the Renewal Option or (6) the occurrence of an
Event of Default by Tenant under the Lease beyond any notice and cure period.
10. Broker. Tenant represents that except for ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company
representing Landlord and ▇▇▇▇ Partners, Inc. representing Tenant, that Tenant
has not retained, contracted or otherwise dealt with any real estate broker,
salesperson or finder in connection with this Second Amendment, and no such
person initiated or participated in the negotiation of this Second Amendment.
Tenant shall indemnify and hold Landlord and ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company harmless from
and against any and all liabilities and claims for commissions and fees arising
out of a breach of the foregoing representation. Landlord shall pay any and all
commissions due ▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ Partners, Inc., due hereunder.
11. Conflict. If any conflict exists between the terms or provisions of
the Lease and the terms or provisions of this Second Amendment, the terms and
provisions of this Second Amendment shall govern and control.
12. Effect Of Amendment. As amended by this Second Amendment, the Lease
shall remain in full force and effect and is ratified by Landlord and Tenant.
This Second Amendment contains the entire agreement of the parties with respect
to the Additional Premises, and all preliminary negotiations with respect
thereto are merged into and superseded by this Second Amendment.
13. Exculpation Of Landlord and ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company.
Notwithstanding anything to the contrary contained in this Second
Amendment or in any exhibits, Riders or addenda hereto attached (collectively
the "Lease Documents"), it is expressly understood and agreed by and between the
parties hereto that: (a) the recourse of Tenant or its successors or assigns
against Landlord with respect to the alleged breach by or on the part of
Landlord of any representation, warranty, covenant, undertaking or agreement
contained in any of the Lease Documents or otherwise arising out of Tenant's use
of the Premises or the Building (collectively, "Landlord's Lease Undertakings")
shall extend only to Landlord's interest in the real estate of which the
Premises demised under the Lease Documents are a part ("Landlord's Real Estate")
and not to any other assets of Landlord or its beneficiaries; and (b) except to
the extent of Landlord's interest in Landlord's Real Estate, no personal
liability or personal responsibility of any sort with respect to any of
Landlord's Lease Undertakings or any alleged breach thereof is assumed by, or
shall at any time be asserted or enforceable against, Landlord, its
beneficiaries, ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company, or against any of their respective
directors, officers, employees, agents, constituent partners, beneficiaries,
trustees or representatives.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to Lease to be duly executed and delivered as of the day and year first written
above.
TENANT:
Aspect Systems, Inc.,
An Arizona corporation
By: /s/ ▇▇▇▇▇▇ Key
------------------------------
Its: President / CEO
LANDLORD:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York
corporation
By: /s/ Mario Mirabeli
------------------------------
Its: Asst. Secretary
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EXHIBIT I3
WORK LETTER AGREEMENT
This Work Letter Agreement ("Work Letter") is executed simultaneously with
that certain Second Amendment (the "Lease") between Aspect Systems, Inc., as
"Tenant", and TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York
corporation, as "Landlord", relating to demised premises ("Premises") at the
building commonly known as EAST VALLEY COMMERCE CENTER (the "Building"), which
Premises are more fully identified in the Lease. Capitalized terms used herein,
unless otherwise defined in this Work Letter, shall have the respective meanings
ascribed to them in the Lease.
For and in consideration of the agreement to lease the Premises and the
mutual covenants contained herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. Tenant's Initial Plans; the Work. Tenant desires to perform certain
leasehold improvement work in the Premises in substantial accordance with the
plan or plans (collectively, the "Initial Plan") to be prepared by Aspect
Systems, Inc. not later than March 31, 2004. Tenant shall provide Landlord with
Initial Plans, drawings, specifications and finish details as Landlord may
reasonably request to enable Landlord to review the scope and nature of the Work
and within five (5) business days after receipt provide Tenant's architects and
engineers with any comments or the approvals to prepare mechanical, electrical
and plumbing plans and to prepare the Working Drawings, including a final
telephone layout and special electrical connection requirements, if any. All
plans, drawings, specifications and other details describing the Work which have
been or are hereafter furnished by or on behalf of Tenant shall be subject to
Landlord's approval, which Landlord agrees shall not be unreasonably withheld.
Landlord shall not be deemed to have acted unreasonably if it withholds its
approval of any plans, specifications, drawings or other details or of any
Additional Work (as defined in Paragraph 7 below) because, in Landlord's
reasonable opinion, the work, as described in any such item, or the Additional
Work, as the case may be: (a) is likely to adversely affect Building systems,
the structure of the Building or the safety of the Building and/or its
occupants; (b) might impair Landlord's ability to furnish services to Tenant or
other tenants in the Building; (c) would increase the cost of operating the
Building; (d) would violate any governmental laws, rules or ordinances (or
interpretations thereof); (e) contains or uses hazardous or toxic materials or
substances; (f) would adversely affect the appearance of the Building; (g) might
adversely affect another tenant's premises; or (h) is prohibited by any ground
lease affecting the Building or any mortgage, trust deed or other instrument
encumbering the Building. The foregoing reasons, however, shall not be the only
reasons for which Landlord may withhold its approval, whether or not such other
reasons are similar or dissimilar to the foregoing. Neither the approval by
Landlord of the Work or Initial Plan or any other plans, drawings,
specifications or other items associated with the Work nor Landlord's
supervision or monitoring of the Work shall constitute any warranty by Landlord
to Tenant of the adequacy of the design for Tenant's intended use of the
Premises.
2. Working Drawings. If necessary for the performance of the Work and not
included as part of the Initial Plan attached hereto, Tenant through Tenant's
architect shall prepare or cause to be prepared final working drawings and
specifications for the Work (the "Working Drawings") based on and consistent
with the Initial Plan and the other plans, drawings, specifications, finish
details and other information furnished by and approved by Landlord pursuant to
Paragraph 1 above. So long as the Working Drawings are consistent with the
Initial Plan, Landlord shall approve the Working Drawings within five (5)
business days after receipt of same from Tenant by initialing and returning to
Tenant each sheet of the Working Drawings
3. Performance of the Work Allowance. Except as hereinafter provided to
the contrary, Tenant shall contract with and hire a contractor from a list
prepared by Tenant based on at least three competitive bids from qualified
contractors with reasonable prior approval by Landlord of the names of such
contractors (the "General Contractor") to perform the Work and shall cause the
performance of the Work using (except as may be stated or shown otherwise in the
Working Drawings) first class materials,
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quantities and procedures ("Building Standards"). Landlord shall pay for a
portion of the "Cost of Work" (as defined below) in an amount not to exceed
$139,584.00 (such amount being $6.00 per rentable square foot of the Premises
which is to be improved, as described in the Working Drawings) (the
"Allowance"), and Tenant shall pay for the entire Cost of the Work in excess of
the Allowance. Tenant shall not be entitled to any credit, abatement or payment
from Landlord in the event that the amount of the Allowance specified above
exceeds the Cost of the Work. For purposes of this Agreement, the term "Cost of
the Work" shall mean and include any and all costs and expenses of the Work,
including, without limitation, the cost of the Working Drawings and of all labor
(including overtime) and materials constituting the Work.
4. Payment. Prior to commencing the Work, Landlord shall submit to Tenant
a written statement of the total Cost of the Work (which shall include the
amount of any overtime projected as necessary to substantially complete the Work
by the Commencement Date specified in the Lease) as then known by Landlord, and
such statement shall indicate the amount, if any, by which the total Cost of the
Work exceeds the Allowance (the "Excess Costs"). Tenant agrees, within ten (10)
business days after submission to it of such statement, to execute and deliver
to Landlord, in the form then in use by Landlord, an authorization to proceed
with the Work, and Tenant shall also then pay to Landlord an amount equal to the
Excess Costs. No Work shall be commenced until Tenant has fully complied with
the preceding provisions of this Paragraph 4. In the event, and each time, that
any change order by Tenant, unknown field condition, delay caused by acts beyond
Landlord's control or other event or circumstance causes the Cost of the Work to
be increased after the time that Landlord delivers to Tenant the aforesaid
initial statement of the Cost of the Work, Landlord shall deliver to Tenant a
revised statement of the total Cost of the Work, indicating the revised
calculation of the Excess Costs, if any. Within five (5) business days after
submission to Tenant of any such revised statement, Tenant shall pay to Landlord
an amount equal to the Excess Costs, as shown in such revised statement, less
the amounts previously paid by Tenant to Landlord on account of the Excess
Costs. Delays in the performance of the Work resulting from the failure of
Tenant to comply with the provisions of this Paragraph 4 shall be deemed to be
delays caused by Tenant.
5. Substantial Completion. Tenant shall cause the Work to be
"substantially completed" on or before the scheduled date of commencement of the
term of the Lease as specified in Section 1 of this Second Amendment to Lease,
subject to delays caused by strikes, lockouts, boycotts or other labor problems,
casualties, discontinuance of any utility or other service required for
performance of the Work, unavailability or shortages of materials or other
problems in obtaining materials necessary for performance of the Work or any
other matter beyond the control of Tenant (or beyond the control of Tenant's
contractors or subcontractors performing the Work) and also subject to "Tenant
Delays" (as defined and described in Paragraph 6 of this Work Letter). The Work
shall be deemed to be "substantially completed" for all purposes under this Work
Letter and the Lease if and when Landlord's architect issues a written
certificate to Landlord and Tenant, certifying that the Work has been
substantially completed (i.e., completed except for "punch1ist" items listed in
such architect's certificate) in substantial compliance with the Working
Drawings. If the Work is not deemed to be substantially completed on or before
the scheduled date of the commencement of the term of the Lease as specified in
Section l of this Second Amendment to Lease, (a) Tenant agrees to use reasonable
efforts to complete the Work as soon as practicable thereafter, (b) the Lease
shall remain in full force and effect, (c) Landlord shall not be deemed to be in
breach or default of the .Lease or this Work Letter as a result thereof and
Landlord shall have no liability to Tenant as a result of any delay in occupancy
(whether for damages, abatement of Rent or otherwise), and (d) except in the
event of Tenant Delays, and notwithstanding anything contained in the Lease to
the contrary, the Commencement Date of the Lease Term as specified in Section 1
of this Second Amendment to Lease shall be extended to the date on which the
Work is deemed to be substantially completed and the Expiration Date of the
Lease Term as specified in Section 1 of this Second Amendment to Lease shall be
extended by an equal number of days. At the request of either Landlord or Tenant
in the event of such extensions in the commencement and expiration dates of the
term of the Lease, Tenant and Landlord shall execute and deliver an amendment to
the Lease
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reflecting such extensions. Landlord agrees to use reasonable diligence to
complete all punch1ist work listed in the aforesaid architect's certificate
promptly after substantial completion.
6. Tenant Delays. There shall be no extension of the scheduled
commencement or expiration date of the term of the Lease (as otherwise
permissibly extended under Paragraph 5 above) if the Work has not been
substantially completed on said scheduled commencement date by reason of any
delay attributable to Tenant ("Tenant Delays"), including without limitation:
(i) the failure of Tenant to furnish all or any plans, drawings,
specifications, finish details or the other information required under Paragraph
1 above on or before the date stated in Paragraph 1;
(ii) the failure of Tenant to grant approval of the Working Drawings
within the time required under Paragraph 2 above;
(iii) the failure of Tenant to comply with the requirements of
Paragraph 4 above;
(iv) Tenant's requirements for special work or materials, finishes,
or installations other than the Building Standards or Tenant's requirements for
special construction staging or phasing;
(v) the performance of any Additional Work (as defined in Paragraph
7 below) requested by Tenant or the performance of any work in the Premises by
any person, firm or corporation employed by or on behalf of Tenant, or any
failure to complete or delay in completion of such work; or
(vi) any other act or omission of Tenant that causes a delay.
7. Additional Work. Upon Tenant's request and submission by Tenant (at
Tenant's sole cost and expense) of the necessary information and/or plans and
specifications for work other than the Work described in the Working Drawings
("Additional Work") and the approval by Landlord of such Additional Work, which
approval Landlord agrees shall not be unreasonably withheld, Landlord shall
perform such Additional Work, at Tenant's sole cost and expense, subject,
however, to the following provisions of this Paragraph 7. Prior to commencing
any Additional Work requested by Tenant, Landlord shall submit to Tenant a
written statement of the cost of such Additional Work, which cost shall include
a fee payable to Landlord in the amount of 15% of the total cost of such
Additional Work as compensation to Landlord for monitoring the Additional Work
and for administration, overhead and field supervision associated with the
Additional Work and an additional charge payable to Landlord in the amount of 5%
of the total Cost of the Additional Work as compensation for Landlord's general
conditions (such fee and additional charge being hereinafter referred to
collectively as "Landlord's Additional Compensation"), and, concurrently with
such statement of cost, Landlord shall also submit to Tenant a proposed tenant
extra order (the "TEO") for the Additional Work in the standard form then in use
by Landlord. Tenant shall execute and deliver to Landlord such TEO and shall pay
to Landlord the entire cost of the Additional Work, including Landlord's
Additional Compensation (as reflected in Landlord's statement of such cost),
within five (5) days after Landlord's submission of such statement and TEO to
Tenant. If Tenant fails to execute or deliver such TEO or pay the entire cost of
such Additional Work within such 5-day period, then Landlord shall not be
obligated to do any of the Additional Work and may proceed to do only the Work,
as specified in the Working Drawings.
8. Lien Release and Reimbursement by Landlord. Upon completion of the
Work, Tenant shall furnish Landlord with full and final waivers of liens and
contractors' affidavits and statements, in such form as may be required by
Landlord, Landlord's title insurance company and Landlord's construction or
permanent lender, if any, from all parties performing labor or supplying
materials or services in connection with the Work showing that all of said
parties have been compensated in full and waiving all liens in connection with
the Premises and Building. Tenant shall submit to
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Landlord a detailed breakdown of Tenant's total construction costs, together
with such evidence of payment as is reasonably satisfactory to Landlord.
9. Lease Provisions. The terms and provisions of the Lease, insofar as
they are applicable to this Work Letter are hereby incorporated herein by
reference. All amounts payable by Tenant to Landlord hereunder shall be deemed
to be additional Rent under the Lease and, upon any default in the payment of
same, Landlord shall have all of the rights and remedies provided for in the
Lease.
10. Miscellaneous.
(a) This Work Letter shall be governed by the laws of the state in
which the Premises are located.
(b) This Work Letter may not be amended except by a written
instrument signed by the party or parties to be bound thereby.
(c) Any person signing this Work Letter on behalf of Tenant warrants
and represents he/she has authority to sign and deliver this Work .Letter and
bind Tenant.
(d) Notices under this Work Letter shall be given in the same manner
as under the Lease.
(e) The headings set forth herein are for convenience only.
(f) This Work Letter sets forth the entire agreement of Tenant and
Landlord regarding the Work.
(g) In the event that the final working drawings and specifications
are included as part of the Initial Plan attached hereto, or in the event
Landlord performs the Work without the necessity of preparing working drawings
and specifications, then whenever the term "Working Drawings" is used in this
Agreement, such term shall be deemed to refer to the Initial Plan and all
supplemental plans and specifications approved by Landlord.
11. Exculpation of Landlord and ▇▇▇▇▇▇▇▇ ▇▇▇▇. Notwithstanding anything to
the contrary contained in this Work Letter, it is expressly understood and
agreed by and between the parties hereto that:
(a) The recourse of Tenant or its successors or assigns against
Landlord with respect to the alleged breach by or on the part of Landlord of any
representation, warranty, covenant, undertaking, or agreement contained in this
Work Letter (collectively "Landlord's Work Letter Undertakings") shall extend
only to Landlord's interest in the real estate, of which the Premises demised
under the Lease are a part (hereinafter, "Landlord's Real Estate") and not to
any other assets of Landlord or its officers, directors or shareholders; and
(b) Except to the extent of Landlord's interest in Landlord's Real
Estate, no personal liability or personal responsibility of any sort with
respect to any of Landlord's Work Letter Undertakings or any alleged breach
thereof is assumed by, or shall at any time be asserted or enforceable against,
Landlord, ▇▇▇▇▇▇▇▇ ▇▇▇▇, or against any of their respective directors, officers,
employees, agents, constituent partners, beneficiaries, trustees or
representatives.
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IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the ____
day of _____________, 19______.
--------------------------------------------------------------------------------
TENANT: LANDLORD:
Aspect Systems, Inc. TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York
corporation
By: /s/ ▇▇▇▇▇▇ Key By: /s/ Mario Mirabeli
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Its: President/CEO Its: Asst. Secretary
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