OFFICE LEASE
THIS OFFICE LEASE made and is entered into by and between Landlord and
Tenant (as defined below) on the lease date (as defined below). Landlord
and Tenant agree:
1. BASIC LEASE INFORMATION
1.1 Basic Lease Information. In addition to the terms that are
defined elsewhere in this lease, these terms are used in this
lease:
(a) LEASE DATE: April 1, 1994
(b) LANDLORD: IBM Corporation
(c) LANDLORD'S ADDRESS: Attn: Regional Manager
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: Attn: IBM Counsel
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(d) TENANT: SCT Public Sector, Inc.
(e) TENANTS ADDRESS: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Tenants General Counsel
With a copy to: President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(f) BUILDING ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(g) PREMISES: The premises shown on Exhibit A to this lease,
known as Suite 100 located on the first floor
(h) RENTABLE AREA OF THE PREMISES: 28,623 rentable square feet
(i) RENTABLE AREA OF THE BUILDING: 61,969 rentable square feet
(j) TENANT'S SHARE: 47%
(k) TERM: 5 years (60 months)
(l) COMMENCEMENT DATE: ▇▇▇▇▇ ▇, ▇▇▇▇
(▇) TERM EXPIRATION DATE: ▇▇▇▇▇ ▇▇, ▇▇▇▇
(▇) MONTHLY RENT: Year 1 = $30,411.94
Year 2 = $31,008.25
Year 3 = $31,008.25
Year 4 = $31,008.25
Year 5 = $31,008.25
(o) ABATEMENT: One (1) month to be received the month of
April, 1994
(p) RATE: $12.75 PSF/Year 1
$13.00 PSF/Years 2 through 5
(q) OPERATING EXPENSES BASE: 1994 Actuals
(r) SECURITY DEPOSIT: One (1) month's rent due upon execution
of lease. To be applied as a credit to
Tenant's 12th month rental.
(s) PARKING SPACES: 130 unreserved spaces
(t) BROKER: The ▇▇▇▇▇▇▇▇▇ Company
The ▇▇▇▇▇▇▇▇ Company - Tenant Broker
1.2 Definitions:
(a) ADDITIONAL RENT: Any amounts that this lease requires Tenant
to pay in addition to monthly rent.
(b) BUILDING: The building located on the land known as ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, and of which the premises is located.
Landlord Initials:____________ Tenant Initials:____________
INTERNATIONAL BUSINESS MACHINES CORPORATION
LANDLORD
AND
SCT PUBLIC SECTOR, INC.
TENANT
LEASE TO PREMISES
Dated:___________
TABLE OF CONTENTS
TITLE PARAGRAPH PAGE
Alterations......................................... 4
Assignment, Subletting and Recapture................ 3
Brokerage Commission................................ 32
Care of Premises.................................... 2
Casualty............................................ 18
Certain Rights Reserved to Landlord................. 9
Condition of Premises............................... 21
Default............................................. 15
Default Under other Leases.......................... 10
Eminent Domain...................................... 17
Estoppel Certificate................................ 31
Hazardous Material.................................. 28
Holding Over........................................ 12
Insurance........................................... 29
Increase or Decrease of Base Rent................... 20
Landlord's Title.................................... 8
Limitation on Liability............................. 30
Mechanics' Liens.................................... 16
Miscellaneous....................................... 25
Notice.............................................. 7
Parties............................................. 1
Possession.......................................... 23
Premises............................................ 1
Quiet Enjoyment..................................... 24
Rent................................................ 1
Restrictions on Use................................. 26
Rules............................................... 13
Save Harmless....................................... 22
Security............................................ 27
Services and Utilities.............................. 6
Signs............................................... 5
Subordination....................................... 14
Term................................................ 1
Use................................................. 1
Waiver of Claims.................................... 11
Waiver of Subrogation............................... 19
Rider A - Rules and Regulations
Rider C - Tenant Improvement Agreement
Exhibit A - Floor Plan
Parties This Lease, made the 25th day of October, 1993, between
International Business Machines Corporation, a New York
corporation, having its principal office at Armonk, New
York, hereinafter called the Landlord, and SCT PUBLIC
SECTOR, INC. hereinafter called the Tenant.
W I T N E S S E T H
Premises That the Landlord hereby leases to the Tenant, and the
Tenant hereby hires and takes from the Landlord the
following described premises (hereinafter called the
"Premises") outlined an Exhibit A (28,623 Rentable Square
Feet) hereto, in the Building (hereinafter called the
"Building") located on the 1ST floor of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Use To be used and occupied by the Tenant for use as a
software/data processing sales office and for no other
purpose,
Tenant shall, at its sole cost and expense, obtain all
governmental licenses and permits required to allow Tenant
to conduct Tenant's permitted uses.
Term For a term to commence on April 1,1994, and to end on March
31,1999, unless sooner terminated as hereinafter provided.
Without limiting the foregoing however, Tenant shall have
the option to renew this lease upon all terms and conditions
herein, for an additional five (5) year term (Renewal
Option), by advising Landlord in writing at least six months
Prior to the expiration, of the initial term that Tenant is
so exercising the renewal option. The annual base rent
during the Renewal option term shall be an amount equal to
ninety percent (90%) of the then current fair market value
for the premises as determined in good faith by both
parties. In no event shall the renewal rate be leas than
the initial rental rate.
Parking Landlord shall make available to the Tenant and their
visitors the use of not more than 130 unreserved surface
parking spaces located within the attached surface lot, at
no additional fee therefore.
Rent The parties hereto do hereby agree and covenant as follows:
1. (a) The Tenant shall pay during the first year of the
initial lease term the annual base rent of
$364,943.25 payable in monthly installments in
advance of $30,411.94. (The first monthly rental
payment due for April 1994 shall be abated by
Landlord.)
(b) The Tenant shall pay during the remaining initial
lease term (months 13 thru 60) the annual base
rent of $372,099.00 payable in monthly
installments in advance of $31,008.25 each on the
first day of every calendar month during the term
hereof (said payment shall not be considered late
until the 5th day of any calendar month); except
that the rent for the first month of the term, and
for any period prior to the first complete
calendar 'month, shall be payable upon execution
of this Lease. The last monthly installment
payment shall include rent for the last calendar
month plus rent for the remaining days to the end
of the term. Rent for any period of less than one
month shall equal 1/30 of the monthly rent for
each day of such period.
(c) The Tenant will pay said rent without deduction,
set off or demand to Scribcor Inc., Agent for IBM
Lease Administration, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or to such other person
or at such other place as the Landlord may
designate in writing. Checks for the payment of
rent shall be made payable to IBM CORPORATION. No
payment by Tenant or receipt by Landlord of a
lesser amount than the correct Rent due hereunder
shall be deemed to be other than a payment on
account; nor shall any endorsement or statement on
any check or any letter accompanying any check or
payment be deemed to effect or evidence an accord
and satisfaction; and Landlord may accept such
check or payment without prejudice to Landlord's
right to recover the balance or pursue any other
remedy in this, Lease or at law or in equity
provided.
Care of 2. (a) The Tenant will take good care of the Premises
Premises and the Building fixtures and appurtenances, and
all alterations, additions and improvements to
them; will repair all damage to the same resulting
from the negligent or willful acts of the Tenant,
its employees, agents, or invitee; will suffer no
waste, or injury; will execute and comply with all
laws, rules, orders, ordinances and regulations,
at any time issued or enforced by any lawful
authority, applicable to the Tenant's use or
occupancy of the Premises; and will repair, at or
before the end of the term, all injury done by the
installation or removal of furniture and property.
(b) At any time or times, the Landlord, either
voluntarily or pursuant to governmental
requirements, may, at the Landlord's own expense,
make repairs, alterations or improvements in or to
the Building or any part thereof, including the
Premises, and, during operations, may close
entrances, doors, corridors, elevators or other
facilities, all without any liability to the
Tenant by reason of interference inconvenience, or
annoyance. The Landlord shall not be liable to
the Tenant for any expense, injury, loss or damage
resulting from work done in or upon, or the use
of, any adjacent or nearby Building, land, street,
or alley.
(c) In no event shall the Tenant assume any financial
participation in Landlord cost of structural
repairs and or maintenance.
Assignment, 3. (a) Without the prior written consent of Landlord,
Subletting Tenant shall not, either voluntarily or by
and Recapture operation of law assign, encumber or otherwise
transfer this Lease or any interest herein, or
sublet the Premises or any part thereof, or permit
the Premises to be occupied by anyone other than
Tenant or Tenant's employees. For purposes of
this section, an assignment shall include any
transfer of any interest in this Lease or the
Premises by Tenant pursuant to a merger, division,
consolidation with any entity other than a legal
entity controlled by, controlling, or under common
control with Systems and Computer Technology
Corporation ("Parent") of which Parent Tenant is a
wholly owned subsidiary, or liquidation, or
pursuant to change in ownership of Tenant
involving a transfer of voting control in Tenant
(whether by transfer of partnership interests,
corporate stock or otherwise). If Tenant desires
to assign this Lease or any interest herein, or to
sublet all or any part of the Premises, then at
least sixty (60) days prior to the effective date
of the proposed assignment or subletting, Tenant
shall submit to Landlord in connection with
Tenants request for Landlord consent:
(1) A statement containing: (i) the name and
address of the proposed assignee or
subtenant; (ii) such financial and other
information with respect to the proposed
assignee or subtenant as Landlord shall
reasonably require; (iii) the type of use
proposed for the Premises; and (iv) all of
the principal terms of the proposed
assignment or subletting; and
(2) All documentation then available related to
the proposed assignment or sublease (copies
of final executed documentation to be
furnished by Tenant prior to the effective
date).
At any time within thirty (30) days after
Landlord's receipt of all (but not less than all)
of the information and documents described above,
Landlord may, at its option by written notice to
Tenant, elect to: (i) sublease the Premises or the
portion thereof proposed to be sublet by Tenant
upon the same terms as those offered to the
proposed subtenant; (ii) take an assignment of the
Lease upon the same terms as those offered to the
proposed assignee; or (iii) terminate the Lease in
its entirety or as to the portion of the Premises
proposed to be assigned or sublet, with a
proportionate adjustment in the rent payable
hereunder if the Lease is terminated as to less
than all of the Premises. If Landlord does not
exercise any of the options described in the
proceeding sentence, then, during the above
described thirty (30) day period, Landlord shall
either consent or deny its consent to the proposed
assignment or subletting.
Landlord's consent shall not be unreasonably
withheld or delayed; but, in addition to any other
grounds for denial, Landlord's consent shall be
deemed reasonably withheld if, in Landlord's good
faith judgment: (i) the proposed assignee or
subtenant does not have the financial strength to
perform its obligations under this Lease or any
proposed sublease; (ii) the business and
operations of the proposed assignee or subtenant
are not of comparable quality to the business and
operations being conducted by other tenants in the
Building; (iii) the proposed assignee or subtenant
intends to use any part of the Premises for a
purpose not permitted under this Lease; (iv)
either the proposed assignee or subtenant, or any
person which directly or indirectly controls, is
controlled by, or is under common control with the
proposed assignee or subtenant occupies space in
the Building, or is negotiating with Landlord to
lease space in the Building; (v) the proposed
assignee or subtenant is disreputable; or (vi) the
use of the Premises or the Building by the
proposed assignee or subtenant would, in
Landlord's reasonable judgment, signifi-cantly
increase the pedestrian traffic in and out of the
Building, increase the utility or service
requirements of Landlord or otherwise impact the
common facilities or other tenants in the
Building, or would require any alterations to the
Building to comply with applicable laws.
(b) Any subletting or assignment hereunder shall not
release or discharge the Tenant of or from any
liability, whether past, present or future, under
this Lease and the Tenant shall continue fully
liable hereunder and shall be liable to the
Landlord for all costs incurred by the Landlord at
the request of and for a subtenant or assignee.
The subtenant or subtenants or assignee or
assignees shall agree to comply with and be bound
by all the terms, covenants, conditions,
provisions and agreements of this Lease to the
extent of the space sublet or assigned, and shall
not assign the sublease or sublet the Premises or
any part thereof, or allow any transfer thereof,
or any lien upon the subtenant's interest, without
the prior written consent of International
Business Machines Corporation, which consent IBM
shall not unreasonably withhold or delay, and the
Tenant shall deliver to the Landlord promptly
after execution, an executed copy of each such
sublease or assignment and an agreement of
compliance by each such subtenant or subtenants or
assignee or assignees.
(c) Any sale, assignment, mortgage, transfer, or
subletting of this Lease which is not in
compliance with the provisions of this Paragraph
shall be of no effect and void.
(d) The Landlord may assign this Lease and shall not
be liable for obligations thereafter accruing
hereunder; provided that the Landlords assignee
shall assume the Landlord's obligations hereunder
accruing on or after the date of assumption.
(e) In the event that Landlord consents to any
assignment or sublease of any portion of the
Premises, as a condition of Landlord's consent, if
Landlord so elects to consent, Tenant shall pay to
Landlord any reasonable attorney fees and
reasonable related expenses incurred by Landlord
in connection with each such assignment or each
sublease consented to by Landlord.
If for any proposed assignment or sublease Tenant
receives rent or other consideration, either
initially or over the term of the assignment or
sublease, in excess of the rent called for
hereunder, or, in case of the sublease of a
portion of the Premises, in excess of such rent
fairly allocable to such portion, after
appropriate adjustments to assure that all other
payments called for hereunder are taken into
account, Tenant shall pay to Landlord as
additional rent hereunder the excess of each such
payment of rent or other consideration received by
Tenant promptly after its receipt.
(f) The consent by Landlord to any assignment or
subletting shall not relieve Tenant, or any person
claiming through or by Tenant, of the obligation
to obtain the consent of Landlord to any further
assignment or subletting. In the event of an
assignment or subletting, Landlord may collect
rent from the assignee or the subtenant without
waiving any rights hereunder, and collection of
the rent from a person other than Tenant shall not
be deemed a waiver of any of Landlord's rights
under this Paragraph, an acceptance of the
assignee or subtenant as Tenant, or a release of
Tenant from the performance of Tenant's
obligations under this Lease.
Alterations 4. (a) With the express exception of the improvements
hereinafter described (which Improvements Landlord
shall provide the Tenant from the fit-up allowance
of $15.00 per square foot provided for
hereinafter), the Tenant shall not make or permit
anyone to make any material alterations in or
additions or improvements to the Premises or
install any equipment of any kind that will
require any alteration or addition to, or the use
of, the water, heating, air conditioning or
electrical or other Building systems or equipment,
without the Landlord's advance written consent in
each instance. The Landlord's decision to refuse
such consent shall be conclusive. If the Landlord
consents to such alterations or additions and, in
the course of the improvements, before
commencement of the work or delivery of any
materials onto the Premises or into the Building,
the Tenant shall furnish the Landlord with plans
and specifications, names and addresses of
contractors, copies of contracts, necessary
permits, waivers of lien, and indemnification in
form and amount satisfactory to use Landlord
against claims, costs, damages, liabilities, and
expenses. All additions and alterations shall be
installed in a good, workmanlike manner and only
new, high grade materials which are in accordance
with the Building standards shall be used whether
the Tenant furnishes the Landlord the foregoing or
not, the Tenant hereby agrees to indemnify and
hold the Landlord harmless from and against any
and all claims, costs, damages, liabilities and
expenses of every kind and description which may
arise out of or be connected in any way with said
alterations or additions or the installation
thereof. Before commencing any work in the
Premises, the Tenant shall furnish the Landlord
with certificates of insurance from all
contractors performing labor or furnishing
materials insuring the Landlord against any and
all claims, costs, damages, liabilities and
expenses, which may arise out of or be connected
in any way with said additions or alterations or
the installation thereof, Except as otherwise
provided for hereinabove, the Tenant shall pay the
cost of all such alterations and additions and
also the cost of decorating the Premises
occasioned by such alterations and additions.
Upon completing any alterations or additions, the
Tenant shall furnish the 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 local ordinances and regulations, and
with the requirements of all statutes and
regulations of the State (or any department or
agency thereof) in which the Building is located.
The Tenant shall permit the Landlord to supervise
construction operations in connection with these
alterations or additions if the Landlord requests
to do so. The privilege herein granted to the
Tenant to make alterations or additions to the
Premises is conditioned upon the Tenant's
contractors, workmen and employees working in
harmony and not interfering with the workmen,
employees and contractors of the Landlord or of
any other tenant. All alterations, additions,
hardware, nontrade fixtures and all improvements,
temporary or permanent, in or upon the Premises,
whether placed there by the Landlord or the
Tenant, shall, unless the Landlord requests their
removal, became the Landlord's property and shall
remain upon the Premises at the termination of
this Lease by lapse of time or otherwise without
compensation or allowance or credit to the Tenant.
If the Landlord requests removal of work (other
than Building standard items as described in the
Landlord's standard form of workletter in use at
the time of execution of this Lease) whether
installed by the Landlord or this Tenant before or
after the start of the term, or if the Landlord
requests removal of additions, alterations,
hardware, nontrade fixtures or improvements
installed or made by the Tenant, the Tenant shall
remove the same prior to the conclusion of the
term and the Tenant shall repair all damage to the
Premises caused by such removal. The Tenant shall
not be required to remove pipes and wires
concealed in the floors, walls, or ceilings,
provided that the Tenant properly cuts and caps
the sane and seals them off in a safe, lawful, and
workmanlike manner. If, upon the Landlord's
request, the Tenant does not remove said things,
the Landlord may remove the same and repair all
damage and the Tenant shall pay to the Landlord
upon demand the cost of such removal and repair of
all damage. The Tenant shall remove the Tenant's
furniture, machinery, safe or safes, trade
fixtures and other items of personal property of
every kind and description from the Premises prior
to the end of the term, however ended. If not so
removed, the Landlord may request their removal,
and if the Tenant does not remove them, the
Landlord may do so and the Tenant shall pay the
Landlord upon demand the cost of such removal and
repair of all damage. If the Landlord does not
request their removal, all such items shall be
conclusively presumed to have been conveyed by the
Tenant to the Landlord under this Lease as a ▇▇▇▇
of sale without further payment or credit by the
Landlord to the Tenant.
Except in connection with the improvements
(initial space fit-up) for which the Tenant shall
contract independently with a construction
manager, Tenant shall also pay to Landlord a
percentage of the cost of such work sufficient to
reimburse Landlord for all overhead, general
conditions, fees and other costs and expenses
arising from Landlord involvement with such work.
(b) Landlord to make available without cost or
warranty to the Tenant a Liebert unit, computer
room flooring and miscellaneous materials used in
the construction of the current computer room
located on the second floor of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇.
Signs 5. The Tenant, at Tenant's sole cost is hereby permitted
to affix reasonable corporate signage to displayed
outside the Tenants main entrance or inside the Tenant
suite. All such signage must be approved by the Owner/
Landlord and meet with all governmental signage
ordinance.
The Tenant's name shall be affixed to the directory
board to be provided by the Landlord and on the
entrance doors of the Premises, but only in such size,
color and style as the Landlord may approve.
Upon Tenant occupancy ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (the
Building) will no longer be identified as the IBM
Building and shall be renamed by Landlord to a generic
identity.
Services and 6. (a) The Landlord shall provide:
Utilities
(1) JANITOR SERVICE in and about the Premises,
Saturdays, Sundays and holidays recognized by
the Landlord excepted. The Tenant shall not
provide any janitor service without the
Landlord's written consent. If the
Landlord's consent be given, such janitor
service shall be subject to the Landlord's
supervision but at the Tenant's sole cost and
responsibility. The Tenant shall not provide
any janitor service in the Premises except
through a janitor contractor or employees
satisfactory to the Landlord.
(2) HEAT AND AIR CONDITIONING daily from 8:00
a.m. to 9:00 p.m., Saturdays, Sundays and
holidays recognized by the Landlord excepted,
whenever heat or air conditioning shall, in
the Landlord's sole judgment, be required for
the comfortable occupation and use of the
Premises,. Whenever heat generating machines
or equipment or lighting fixtures other than
Building standard lighting fixtures are used
in the Premises and affect the temperature
otherwise maintained by the Building air
conditioning system, the Landlord may install
supplementary air conditioning units in or
for the benefit of the Premises, and the cost
of installation, operation and maintenance
thereof shall be paid by the Tenant to the
Landlord upon billing by the Landlord as
additional rent.
(3) WATER from municipal mains for drinking,
lavatory and toilet purposes, drawn through
fixtures installed by the Landlord or by the
Tenant with the Landlord's written consent.
The Tenant shall pay, at rates fixed by the
Landlord, for water used for supplementary
air conditioning or refrigeration installed
by or for the Tenant, or for any purpose
other than drinking, lavatory and toilet
purposes.
(4) ADEQUATE PASSENGER ELEVATOR SERVICE (if the
Building contains an elevator) in common with
other tenants at all times, and FREIGHT
ELEVATOR SERVICE in common with other tenants
daily from 8:00 a.m. until 6:00 p.m.,
Saturdays, Sundays, and holidays recognized
by the Landlord excepted, subject to
scheduling by the Landlord. Freight elevator
service at other times and elevators with
attendants shall be optional with the
Landlord, and if provided, shall never be
deemed a continuing obligation of the
Landlord.
(5) ELECTRICITY for Building standard lighting
fixtures and for the Tenant's incidental
uses, daily from 8:00 a.m. to 9:00 p.m.,
Saturdays, Sundays and holidays recognized by
the Landlord excepted. With respect to such
incidental uses, electricity, will be
furnished in the Premises by the Landlord to
the Tenant without charge provided that (1)
the connected electrical load of the
incidental use equipment does not exceed an
average of one watt per square foot of the
Premises; (2) the electricity so furnished
for incidental uses will be at nominal 120
volt single phase and that no electrical
circuit for the supply of such incidental use
will have a current capacity exceeding 15
amperes and (3) such incidental electricity
will be used only f or equipment and
accessories normal to office usage such as
typewriters, calculating machines, and other
standard machines of similar low electrical
consumption. If the Tenant's requirements
for electricity are in excess of those set
forth in the preceding sentence, including
electricity for machines such as electronic
data processing equipment, special lighting
fixtures or HVAC, the Tenant shall pay the
Landlord upon billing for the cost of such
excess electricity as additional rent. The
Landlord reserves the right to require the
Tenant to procure any excess requirements at
the Tenant's expense by arrangement with the
local utility furnishing electricity to the
Building. The Tenant shall also pay the
Landlord for the cost of installing an
electrical mater if reasonably deemed
necessary by the Landlord or any additional
risers or other facilities that may be
necessary to furnish such excess electricity
to the Premises.
(b) The Landlord does not warrant that any of the
services above mentioned will be free from
interruption caused by war, insurrection, civil
commotion, riots, acts of God or the enemy of
Government action, repairs, renewals,
improvements, alterations, strikes, lockouts,
picketing, whether legal or illegal, accidents,
inability of the Landlord to obtain fuel or
supplies, or any other cause or causes beyond the
reasonable control of the Landlord. Any such
interruption of service shall never be deemed an
eviction or disturbance of the Tenant's use and
possession of the Premises or any part thereof, or
render the Landlord liable to the Tenant for
damages, or relieve the Tenant from performance of
the Tenant's obligations under this Lease.
Notwithstanding anything to the contrary in this
Paragraph or elsewhere in this Lease, Landlord shall
have the right to reasonably institute such policies,
programs and measures as may be necessary or desirable,
in Landlord's discretion, for the conservation and/or
preservation of energy or energy-related services, or
as may be required to comply with any applicable codes,
rules and regulations, whether mandatory or voluntary.
Notice 7. Any notice, request, communication or demand under this
Lease shall be in writing and shall be considered
properly delivered when addressed as hereinafter
provided, given or served personally or by registered
or certified mail (return receipt requested) and
deposited in the United States general or branch post
office. Any notice, request, communication or demand
by the Landlord to the Tenant shall be addressed to the
Tenant in care of its President at the Premises (or,
prior to the date the Tenant first occupies any portion
of the Premises, at the address of the Tenant set forth
on Page 1 of this Lease) until otherwise directed in
writing by the Tenant. A copy of all such notices to
Tenant shall also be sent to Tenant's general counsel,
at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such
other address as Tenant may hereinafter direct. Any
notice, request, communication or demand by the Tenant
to the Landlord shall be addressed to the Landlord's
Building Manager at the Building with copies addressed
simultaneously to the Landlord, attention of the IBM
Division Counsel, Corporate Real Estate Staff, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
simultaneously to the attention of the Regional
Manager, ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ until otherwise directed in writing by the
Landlord. Rejection or other refusal to accept a
notice, request, communication or demand or the
inability to deliver the same because of a changed
address of which no notice was given shall be deemed to
be receipt of the notice, request, communication or
demand or the inability to deliver the same because of
a changed address of which no notice was given shall be
deemed to be receipt of the notice, request,
communication or demand sent.
Landlord's 8. The Landlord's title is and always shall be paramount
Title to the title of the Tenant, and nothing herein
contained shall empower the Tenant to do any act which
shall encumber the title of the Landlord.
Certain Rights 9. (a) The Landlord reserves the following rights:
Reserved to
Landlord (1) To change the name or street address of the
Building without notice or liability of the
Landlord to the Tenant.
(2) To install and maintain a sign or signs on
the exterior of the Building.
(3) During last ninety (90) days of the term, if
during or prior to that time the Tenant
vacates the Premises, to decorate, remodel,
repair, alter or otherwise prepare the
Premises for reoccupancy.
(4) To constantly have pass keys to the Premises.
(5) To grant to anyone the exclusive right to
conduct any particular business or
undertaking in the Building; excepting
specifically that, during the term (or any
extension thereof), Landlord shall not permit
any person or entity to lease, occupy or
otherwise possess a subordinate interest in
or to the premises, the building, or any
portion(s) thereof, whose primary business is
to provide software and/or data processing
services to the local government, utility
and/or higher education marketplaces other
than TMD or any of its wholly owned
subsidiaries.
(6) To exhibit the Premises to others.
(7) To take any and all measures, including
inspections, impairs, alterations, additions
and improvements to the Premises or to the
Building, as may be reasonably necessary or
desirable for the safety, protection or
preservation of the Premises or the Building
or the Landlord's interests, or as may be
necessary or desirable in the operation of
the Building.
(8) To approve the weight, size and location of
safes, vaults, vertical files and other heavy
equipment and articles in and about the
Premises and the Building so as not to exceed
the legal live load per square foot
designated by the structural engineers for
the Building, and to require all such items
and furniture and similar items to be moved
into or out of the Building and Premises only
at such times and in such manner as Landlord
shall direct in writing. Tenant shall not
install or operate machinery or any
mechanical devices of a nature not directly
related to Tenant's ordinary use of the
Premises without the prior written consent of
Landlord. Movements of Tenant's property
into or out of the Building or Premises and
within the Building are entirely at the risk
and responsibility of Tenant, and Landlord
reserves the right to require permits before
allowing any property to be moved into or out
of the Building or Premises.
(9) To establish controls for the purpose of
regulating all property and packages, both
personal and otherwise, to be moved into and
out of the Building and Premises and all
persons using the Building after normal
office hours.
(10) To regulate delivery and service of supplies
and the usage of the loading docks,
receiving; areas and freight elevators.
(b) The Landlord may enter upon the Premises and may
exercise any or all of the foregoing rights hereby
reserved without being deemed guilty of an
eviction or disturbance of the Tenant's use or
possession and without being liable in any manner
to the Tenant.
Default Under 10. If the term of any lease made by the Tenant for any
Other Leases space in the Building, other than this Lease, shall be
terminated or terminable after the making of this Lease
because of any default by the Tenant under such other
lease, such fact shall constitute a default under this
Lease and shall empower the Landlord, at the Landlord's
sole option, to terminate this Lease by notice to the
Tenant.
Waiver of 11. To the extent permitted by law, the Tenant
Claims releases the Landlord and the Landlord's agents,
servants and employees, and the Landlord's manage-ment
contractor for the Building, and its agents, servants
and employees from, and waives all claims for, damage
to person or property sustained by the Tenant or any
occupant of the Building or Premises resulting from the
Building or Premises or any part of either or any
equipment or appurtenance becoming out of repair, or
resulting from any accident in or about the Building,
or resulting directly or indirectly from any act or
neglect of any tenant or occupant of the Building or of
any other person, including the Landlord and the
Landlord's agents, servants and employees, and the
Landlord's management contractor for the Building, and
its agents, servants and employees. This Paragraph 11
shall apply especially, but not exclusively, to the
flooding of basements or other subsurface areas, and to
damage caused by refrigerators, sprinkling devices, air
conditioning apparatus, water, snow, frost, steam,
excessive heat or cold, falling plaster, broken glass,
sewage, gas, odors or noises, or the bursting or
leaking of pipes or plumbing fixtures, and shall apply
equally whether any such damage results from the act or
neglect of the Landlord or of other tenants, occupants
or servants in the Building or of any other person, and
whether such damage be caused or results from any thing
or circumstance above mentioned or referred to, or any
other thing or circumstance whether of a like nature or
of a wholly different nature. If any such damage,
whether to the Premises or to the Building or any part
thereof, or whether to the Landlord or to other tenants
in the Building, results from any act or neglect of the
Tenant, the Landlord may, at the Landlord's option,
repair such damage and the Tenant shall, upon demand by
the Landlord, reimburse the Landlord forthwith for the
total cost of such repairs. The Tenant shall not be
liable for any damages caused by its act or neglect if
the Landlord or the Tenant has recovered the full
amount of the damages from insurance, and the insurance
company has waived in writing its rights of subrogation
against the Tenant. All property belonging to the
Tenant or any occupant of the Premises that is in the
Building or the Premises shall be there at the risk of
the Tenant or other occupant only, and the Landlord
shall not be liable for damages thereto or theft or
misappropriation thereof.
Holding Over 12. If the Tenant retains possession of the Premises or any
part thereof after the termination of the term by lapse
of time or otherwise, the Tenant shall pay the Landlord
rent at double the rate of rental specified in this
Lease for the time the Tenant thus remains in
possession, and in addition thereto, shall pay the
Landlord all damages sustained by reason of the
Tenant's retention of possession. If the Tenant
remains in possession of the Premises, or any part
thereof, after the termination of the term by, lapse of
time or otherwise, such holding over shall, at the
election of the Landlord expressed in a written notice
to the Tenant and not otherwise, in lieu of double
rent, constitute a renewal of this Lease for one year.
The provisions of this Paragraph do not waive the
Landlord's rights of reentry or any other rights
hereunder.
Rules 13. The Tenant shall observe faithfully and comply strictly
with the rules and regulations attached to this Lease
and made a part thereof as Rider A, and such other
rules and regulations, promulgated from time to time by
the Landlord, as in the Landlord's judgment are
necessary for the safety, care and cleanliness of the
Building or for the preservation of good order therein.
The Landlord will not be liable to the Tenant for
violation of such rules and regulations by any other
tenant, its servants, employees, agents, visitors,
customers, invitee, or licensees.
Subordination 14. This Lease shall be subordinate and subject at all
times to all ground or underlying leases and to any
mortgage or deed of trust covering the Premises or
which at any time thereafter shall be made, and to all
renewals, modifications, consolidations, or
replacements thereof, and to all advances made, or
hereafter to be made, upon the security of any such
mortgage or deed of trust, and the Tenant shall execute
such further instruments subordinating this Lease to
any such mortgage or deed of trust as the Landlord
shall request.
In the event of any act or omission by Landlord which
would give Tenant the right to damages from Landlord or
the right to terminate this Lease, Tenant will not ▇▇▇
for such damages or exercise any such right to
terminate until (i) it shall have given written notice
of the act or omission to Landlord and to the
holders(s) of the indebtedness or other obligations
secured by any mortgage or deed of trust affecting the
Premises or of any ground or underlying lease, if the
name and address of such holder(s) have been furnished
to Tenant, and (ii) a reasonable period of time, in
light both of the time required to effect a remedy and
of the impact of the act or omission on Tenant's
business operations on the Premises, for remedying the
act or omission has elapsed following the giving of the
notice, during which time Landlord and such holder(s),
or either of them, and their agents or employees, will
be entitled to enter upon the Premises and do therein
whatever may be necessary to remedy the act or
omission.
Default 15. (a) All rights and remedies of the Landlord herein
enumerated shall be cumulative, and none shall
exclude any other (a) The occurrence of any one or
more of the following events shall constitute a
default by the Tenant and a breach of this Lease:
(i) The Tenant fails to make a payment of rent or
any other payment of money as and when the same
shall become due and payable hereunder and such
failure shall continue for more than five (5)
consecutive days after notice by the Landlord, or
(ii) the Tenant fails to promptly and fully
perform or observe any of the other covenants,
agreements, rules and regulations, terms or
conditions in this Lease to be performed or
observed by the Tenant and such failure shall
continue for more than twenty (20) consecutive
days after notice by the Landlord Specifying the
nature of such failure, or if the failure so
specified shall be of such a nature that the sane
cannot be reasonably cured or remedied within said
twenty (20) day period, the Tenant shall not in
good faith have commenced to curl or remedy such
failure within such twenty (20) day period and
thereafter diligently proceed therewith to
completion, (unless the act or omission of the
Tenant or occurrence involves a hazardous or
emergency condition which shall be cured by the
Tenant forthwith upon the Landlord's demand) or
(iii) the leasehold interest or property of the
Tenant be levied upon under execution or be
attached by process of law, or (iv) the Tenant
fails to take possession of the Premises within
fifteen (15) consecutive days after the
commencement of the term hereof, or (v) the Tenant
discontinues the conduct of its business in the
Premises, or (vi) the Tenant makes an assignment
for the benefit of creditors, or a receiver be
appointed for any property of the Tenant, or at
any time prior to or during the term of this Lease
any voluntary or involuntary petition or similar
pleading under any section or sections of any
bankruptcy law shall be filed by or against the
Tenant, or any voluntary or involuntary proceeding
in any court or tribunal shall be instituted to
declare the Tenant insolvent or unable to pay the
Tenant's debts, and in the case of any involuntary
petition or proceeding, the petition or proceeding
is not dismissed within thirty (30) consecutive
days from the date it is filed.
(b) In the event of any default of the Tenant
hereunder, and at any time thereafter, (i) if the
term of this Lease shall not have commenced, the
Landlord may cancel and terminate this Lease by
notice to the Tenant, or (ii) if the term of this
Lease shall have commenced, the Landlord may serve
upon the Tenant a notice that this Lease and the
term hereof will terminate an a date to be
specified therein, (which shall not be less than
five (5) consecutive days after the date such
notice is given), and upon the date so specified
by the Landlord in such notice, this Lease and the
then unexpired term hereof shall terminate and
come to an end as fully and completely as if the
date specified in the Landlord's notice was the
day herein definitely fixed for the end and
expiration of this Lease and the term hereof, and
the Tenant shall then quit and surrender the
Premises to the Landlord, but the Tenant shall
remain liable as hereinafter set forth; provided,
however, that if the Tenant shall fail to make
timely payment of rent, and such failure shall
continue for two (2) consecutive months, or if the
Tenant shall fail to perform a covenant of this
Lease, including the timely payment of rent, two
(2) or more tines in any period of six (6) months
then, notwithstanding that each act or omission
shall have been cured within the period after the
giving of notices as herein provided, any further
similar act or omission shall be deemed' to be
deliberate and the Landlord thereafter may serve
the aforesaid notice of termination without
affording to the Tenant a further opportunity to
cure.
(c) Upon termination of this Lease by the Landlord as
hereinabove provided; or if the Premises became
vacated or deserted, the Landlord may, without
notice, terminate all services and reenter the
Premises either by force or otherwise, and by
summary proceedings or otherwise, dispossess the
Tenant and the legal representatives of the Tenant
or any other occupant of the Premises, and remove
their effects without being deemed in any manner
guilty of trespass, eviction or forcible detainer,
and hold the Premises as if this Lease had not
been made.
(d) In the event of any default by Tenant as provided
in this Paragraph, Landlord shall have the right,
without notice or demand to Tenant (Tenant hereby
irrevocably waiving all notices and demands,
statutory or otherwise, including without
limitation, any notice otherwise required in
connection with any forcible entry and detainer
action), to terminate this Lease, and Tenant's
right to possession of the Premises without
terminating this Lease, in which event Landlord
shall be entitled to receive from Tenant:
(1) The worth at the time of award of any unpaid
rent which has been earned at the time of
such termination; plus
(2) The worth at the time of award of the amount
by which the unpaid rent which would have
been earned after termination until the time
of award exceeds the amount of such rental
loss Tenant proves could have been reasonably
avoided; plus
(3) The worth at the time of award of the amount
by which the unpaid rent which would have
been earned after termination until the time
of award exceeds the amount of such rental
loss that Tenant proves could be reasonably
avoided; plus
(4) Any other amount necessary to compensate
Landlord for all the detriment proximately
caused by Tenant's failure to perform its
obligations under this Lease or which in the
ordinary course of things would be likely to
result therefrom; and
(5) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as
may be permitted from time to time by
applicable law.
As used in subparagraphs (1) and (2) above, "worth
at the time of award" shall be the then highest
lawful rate, but in no event to exceed one percent
(1%) per annum, plus the rate established by the
Federal Reserve Bank of Chicago on advances made
to member banks under Sections 13 and 13a of the
Federal Reserve Act ('discount rate') prevailing
on the date of execution of this Lease by
Landlord. As used in paragraph (3) above, "worth
at the time of award" shall be computed by
discounting such amount at the discount rate of
the Federal Reserve Bank of Chicago at the time of
award, plus one percent (1%).
(e) Any and all property which may be removed from the
Premises by the Landlord pursuant to the authority
of this Lease or of law, to which the Tenant is or
may be entitled, may be handled, removed or stored
by the Landlord at the risk, cost and expense of
the Tenant, and the Landlord shall in no event be
responsible for the value, preservation or
safekeeping thereof. The Tenant shall pay to the
Landlord upon demand any and all expenses incurred
in such removal and all storage charges against
such property so long as the same shall be in the
Landlord's possession or under the Landlord's
control. Any such property of the Tenant not
removed from the Premises or retaken from storage
by the Tenant within thirty (30) days after the
end of the term, however, terminated, shall be
presumed to have been conveyed by the Tenant to
the Landlord under this Lease as a ▇▇▇▇ of sale
without further payment or credit by the Landlord
to the Tenant.
(f) The Tenant shall pay upon demand all the
Landlord's costs, charges and expenses, including
the fees of counsel, agents and others retained by
the Landlord, incurred in enforcing ca carrying
out the' Tenant's obligations hereunder or
incurred by the Landlord in any litigation,
negotiations or transactions in which the Tenant
causes the Landlord, without the Landlord's fault,
to become involved or concerned, plus interest
from the date of payment at the annual rate of one
and one-half percent (1.5%) above the prime
interest rate established, from time to time, by
the largest commercial bank in the State in which
the Building is located, which amount shall be
deemed to be additional rent due and payable by
the Tenant at once without notice or demand (but
in no event, at a rate which is more than the
highest rate which is at the time lawful in the
State where the Building is located).
(g) The Tenant hereby expressly reserves the right to
receive notice of the service of notice of
intention to reenter or to institute legal
proceedings to that end and any and all rights of
redemption granted by or under any present or
future laws in the event of the Tenant being
evicted or dispossessed for any cause, or in the
event of the Landlord obtaining possession of the
Premises by reason of the violation by the Tenant
of any of the covenants and conditions of this
Lease or otherwise. The words "reenter", "enter"
and "reentry" as used in this Lease are not
restricted to their technical legal meaning.
(h) In the event of a breach or threatened breach by
the Tenant of any of the covenants or provisions
hereof, the Landlord may have the right of
injunction and the right to invoke any remedy
allowed at law or in equity as if reentry, summary
proceedings and other remedies were not herein
provided for. Mention in this Lease of any
particular remedy shall not preclude the Landlord
from pursuing any other remedy in law or in
equity.
(i) The delivery of keys to any agent or employee of
the Landlord shall not be considered as a
termination of this Lease or a surrender of the
Premises.
(j) The Landlord and the Tenant hereby waive trial by
jury in any action, proceeding or counterclaim
brought by either of them against the other an any
matters not relating to personal injury or
property damage but otherwise arising out of or in
any way connected with this Lease, the
relationship of the Landlord and the Tenant, the
Tenant's use or occupancy of the Premises, or any
emergency statutory remedy. The Tenant further
agrees that is shall not interpose any
counterclaim or counterclaims in a summary
proceeding or in any action based on nonpayment of
rent or any other payment required of the Tenant
hereunder.
Mechanics' 16. The Tenant shall not permit any mechanics, or
Liens mechanic's liens to be filed against the fee of the
real property on which the Building is located nor
against the Tenant's leasehold interest in the
Premises. The Landlord shall have the right, at all
reasonable times to post and keep posted on the
Premises any notices which it deems necessary for
protection from such liens. If any such liens are so
filed, the Landlord, at its election, may pay and
satisfy the same and in such event the sums so paid by
the Landlord, with interest from the date of payment at
the annual rate of one and one-half percent (1.5%)
above the prime interest rate established, from time to
time, by the largest commercial bank in the State in
which the Building is located, shall be deemed to be
additional rent due and payable by the Tenant at once
without notice or demand.
Eminent Domain 17. (a) In the event that the whole or any part of the
Premises shall be lawfully condemned or taken in
any manner for any public or quasi-public use, at
the Landlord's option, this Lease and the term
hereby granted shall forthwith cease and terminate
on the date of the taking of possession by the
condemning authority and the Landlord shall be
entitled to receive the entire award without any
payment to the Tenant, the Tenant hereby assigning
to the Landlord the Tenant's interest in the
award, if any, and the rent shall be apportioned
as of such date.
(b) In the event that a part of the Building shall be
so condemned or taken and if in the opinion of the
Landlord, the Building should be restored in such
a way as to alter the Premises materially, or the
Building should be demolished, the Landlord may
terminate this Lease and the term and estate
hereby granted without compensation to the Tenant
by notifying the Tenant of such termination within
sixty (60) days following the date of the taking
of possession by the condemning authority, and
this Lease and the term and estate hereby granted
shall expire on the date specified in the notice
of termination not less than sixty (60) days after
the giving of such notice, as fully and completely
as if such date were the date hereinbefore set for
the expiration of the term of this Lease, and the
rent shall be apportioned as of such date.
Casualty 18. In the event of damage or destruction of the Premises
during the term by fire, the elements, or casualty, the
Landlord shall forthwith repair the same, provided such
repairs can be made, in the Landlord's opinion, within
one hundred twenty (120) days, but such damage or
destruction shall in nowise annul or void this lease,
except that the Tenant shall be entitled to at
proportionate reduction of rent while such repairs are
being made, such proportionate reduction to be based
upon the extent that the Premises, or part thereof, may
be untenantable. If, in the Landlord's opinion, such
repairs cannot be made within one hundred twenty (120)
days the Landlord may, at its option to be exercised
within thirty (30) days from the date of such damage or
destruction, make the same as soon as possible
thereafter, this Lease continuing in full force and
effect and the rent to be proportionately reduced as
aforesaid in this Paragraph provided. In the event
that the Landlord does not so elect to make such
repairs which cannot be made within said one hundred
twenty (120) day period, this Lease may be terminated
at the option of either party. In the event that the
Building be damaged, this Lease shall continue in full
force and effect, but the Landlord shall forthwith
repair such damage; except that if the Building is
severely damaged or destroyed, as determined by the
Landlord, the Landlord, at its option to be exercised
within thirty (30) days from the date of such damage or
destruction, may terminate this Lease. The Tenant
shall be entitled to a proportionate reduction of rent
only if the Premises are untenantable as aforesaid and
no such rent reduction shall be allowed by reason of
inconvenience, annoyance or injury to the Tenant's
business because of such damage or destruction, or the
necessity of repairing any Portion of the Building, or
the making of such repairs, and the Landlord shall not
be liable to the Tenant because of such inconvenience,
annoyance or injury.
Waiver of 19. Each party hereto waives all claims for recovery from
Subrogation the other party for any loss or damage to any of its
property insured under valid and collectible insurance
policies covering loss by fire or any of the peril's
insured under the standard extended coverage rider.
Increase or 20. (a) The operating expense base cost contained within
Decrease of annual rent described in Paragraph 1 (and in any
extension or renewal provision) shall be increased
or decreased annually, as the case may be, for
each Comparison Year, by not more than 5% capped
excluding those uncontrollable Landlord expenses
of taxes, insurance and utilities. In the event
the Building is not fully assessed for tax
purposes for the Base Year or a Comparison Year
because for tax purposes it is not considered
fully completed, the Real Estate Taxes for the
Base Year or Comparison Year, as the case may be,
shall be adjusted by the Landlord to such figure
as the Landlord in its reasonable discretion
determines would reflect the Real Estate Taxes as
if the Building were fully completed and fully
assessed for tax purposes.
(b) For the purpose of this Paragraph 20:
(1) The term "Base Year" means calendar year 1994
(2) The term "Comparison Year" means each
calendar year during the tern of this Lease
subsequent to the Base Year of 1994.
(3) The term "Real Estate Taxes" means all taxes
and assess-ments, special or otherwise,
levied upon or with respect to the Building
and the land upon which it is located, or
either of them, imposed by Federal, State or
local governments, (but shall not include
income, franchise, capital stock, estate or
inheritance taxes unless the Landlord
equitably determines that such taxes are in
lieu of Real Estate Taxes), and use or
occupancy taxes, and excise and other taxes
(other than general income taxes) on rent and
other income from the Building, (computed, in
case of a graduated tax, as if the Landlord's
income from the Building were the Landlord's
sole taxable income), and any substitutions
for Real Estate Taxes, and amounts in the
year paid, for fees for consultants and
attorneys and all other costs incurred by
Landlord in seeking to obtain a reduction of,
or a limit on the increase in any Real Estate
Taxes, regardless of whether any reduction or
limitation is obtained. The term Real Estate
Taxes for the Base Year or for any Comparison
Year means Real Estate Taxes paid or falling
due during the Base Year or such Comparison
Year. In the case of special taxes and
assess-ments payable in installments only the
amount of each installment due and payable
during a calendar year shall be included in
Real Estate Taxes for that year.
(4) The term "Operating Expenses" with respect to
the Base Year or a Comparison Year means
those expenses incurred during such year in
respect of the operation and maintenance of
the Building in accordance with accepted
principles of sound management and accounting
practices are applied to the ownership,
management, operation, maintenance and repair
of first class office buildings, including
premiums for insurance carried by the
Landlord and personal property taxes in
connection with property used in the
maintenance and operation of the Building,
plus those additional expenses which the
Landlord reasonably determines it would have
so incurred during such year had the Building
been 100% occupied. If the Landlord shall
eliminate the payment of any wages or other
labor costs, costs of supplies, costs of
subcontractor services, or other management
costs, as a result of the installation of
labor saving devices, (whether or not
categorized as capital improvements) or by
any other means, or if the Landlord shall,
through installation during the term of
energy saving devices, (whether or not
categorized as capital improvements) affect
savings in energy or other utility costs,
then in computing Operating Expenses the
corres-ponding item or items of such wages or
other costs saved, or the utility cost saving
differential, shall be deducted from Base
Year Operating Expenses. The cost of these
devices, plus interest at the annual rate of
one-half percent (1.5%) above the prime
interest rate established, from time to tine,
by the largest commercial bank in the state
in which the Building is located, may be
amortized over a reasonable period of time as
determined by the Landlord in accordance with
accepted principals of sound management and
accounting practices, and included as an item
of Operating Expenses; provided, that such
amortized cost plus interest in any
comparison Year shall not exceed in that
Comparison Year the savings generated by the
device. Operating Expenses shall not include
expenses for repairs or other work occasioned
by fire or other insured casualty; expenses
incurred in leasing or procuring new tenants
such as lease commissions, advertising
expenses and expenses of renovating space for
new tenants; legal expenses in enforcing the
terms of any lease; interest or amortization
payments on any mortgage or mortgages, and
rental under any ground or underlying lease
or leases: wages, salaries or other
compensation paid to any executive employees
above the grade of Building Manager; wages,
salaries or other compensations paid for
clerks or attendants in concessions or
newsstands operated if the Landlord, and
expenses in connection with maintaining and
operating any garage separately operated by
the Landlord.
(c) If by reason of complaint against valuation,
protest of tax rates, or otherwise, Real Estate
Taxes for the Base Year or any Comparison Year are
affected in such a way as would result in a rent
increase or decrease hereunder, the Real Estate
Taxes for Use affected Base Year or Comparison
Year shall be recalculated accordingly and the
resulting increase or decrease in rent, less the
expenses incurred in effecting any such reduction,
shall be paid simultaneously with or applied as a
credit against the rent next becoming due. Any
personal property taxes or any increase in Real
Estate Taxes by reason of capital improvements,
nonstandard or special installa-tions, alterations
or fixtures made to the Premises by or for the
benefit of the Tenant shall be paid for by the
Tenant.
(d) If the term of this lease shall terminate on a
date other than a December 31st, the annual rent
described in Paragraph 1 (and in any extension or
renewal provision) as previously adjusted by this
Paragraph 20, shall to increased or decreased, as
the case may be, for the period commencing on the
January 1st following the last full calendar year
of the term and continuing to the end of the term
of this Lease, at the same rate as the rent for
the Comparison Year immediately prior to such
period is increased or decreased by reason of this
Paragraph 20, and the adjustment for such period
shall be made within twenty (20) days after the
Landlord shall render its statement for the last
monthly installment of the annual rent payable
under this Lease, or if that is not reasonably
feasible as soon thereafter as is reasonably
feasible, and this obligation shall survive the
expiration or earlier termination of this Lease.
(e) Statements of the amount of the Tenant's pro rata
share of increase or decrease in Real Estate Taxes
and Operating Expenses shall be rendered by the
Landlord to the Tenant as soon as reasonably
feasible after the first Comparison Year and each
ensuing Comparison Year thereafter, except as
otherwise provided in subparagraph (d) hereof with
respect to any fractional period at the end of
this Lease and except as hereinafter provided.
Delay in computation of the increase or decrease
in Real Estate Taxes and Operating Expenses shall
not be deemed a default hereunder or a waiver of
Landlord's right to collect the increase or
decrease in Real Estate Taxes and Operating
Expenses. On the first day for the payment of
rent under this Lease following the, furnishing of
a statement for a Comparison Year (1) the Tenant,
in the event of an increase, shall pay the
Landlord a shall equal to one-twelfth (1/12) of
the Tenant's share of such increase multiplied by
the number of months then elapsed commencing with
January 1st of the preceding calendar year and, in
advance, one-twelfth (1/12) of such share in
respect of the then current month; and
correspondingly, in the case of a decrease, the
Tenant shall be entitled to a credit against the
rent next becoming due of a sum equal to one-
twelfth (1/12) of the Tenant's share of such
decrease multiplied by the number of months then
elapsed commencing January 1st of the preceding
calendar year, and (2) thereafter, until the next
Comparison Year statement shall be rendered, the
monthly installments of rent payable under this
Lease shall be increased or decreased, as the case
may be, by an amount equal to one-twelfth (1/12)
of the Tenant's share of such increase or
decrease. The Landlord may, in its discretion,
make a reasonable estimate of the Tenant's share
of anticipated increases in Real Estate Taxes and
Operating Expenses in the first Comparison Year
and require the Tenant to pay each month during
the first Comparison Year one-twelfth (1/12) of
such estimated amount at the time of payment of
monthly installments of rent, subject to
adjustment as hereinabove provided. Any payment,
refund, or credit shall be made without prejudice
to any right of the Tenant to dispute or of the
Landlord to correct any item oar items in such
statements pursuant to subparagraph (f) hereof
Notwithstanding anything to the contrary
hereinabove provided, the monthly rent shall never
be decreased by operation of this Paragraph 20
below the monthly annual rent described in
Paragraph 1 (or in any extension or renewal
provision).
(f) If the Tenant shall dispute in writing any
specific item or items included by the Landlord in
determining Operating Expenses or the additional
expenses which would have been incurred had the
Building been 100% occupied or the amount of any
Real Estate Taxes, and such dispute is not
amicably settled between the Landlord and the
Tenant within thirty (30) days after statements
therefor have been rendered, either party may
during the thirty (30) days next following the
expiration of the first mentioned thirty (30) days
refer such disputed items or items to an
independent certified public accountant selected
by the Landlord, for decision, and the decision of
such accountant shall be final, conclusive and
binding upon the Landlord and the Tenant. In no
event shall Tenant be entitled to withhold, deduct
or offset any monetary obligation of Tenant to
Landlord under the Lease pending the completion of
and regardless of the results of any review of
records under this Paragraph. The right of Tenant
under this Paragraph may only be exercised once
for any Landlord's Statement, and if Tenant fails
to meet any of the above conditions as a
prerequisite to the exercise of such right, the
right of Tenant under this Paragraph for a
particular Landlord's Statement shall be deemed
waived. Any adjustment required by such decision
shall be made within thirty (30) days after such
decision has been rendered. The expenses involved
in such determination shall be borne by the party
against whom a decision is rendered by said
accountant or, if more than one item is disputed,
the expenses shall be apportioned according to the
number of items decided against each party. If
the Tenant shall not so dispute any item or items
of any such statement within sixty (60) days after
such statement has been rendered, the Tenant shall
be deemed to have approved such statement. The
Landlord shall have the right, for a period of
twenty-four (24) months after the rendering of any
statements, (or for a longer period, if reasonably
required in order to ascertain the facts as to any
change in Real Estate Taxes or in any operating
Expenses), to send corrected statements to the
Tenant, and any rent adjustments requited thereby
shall be made within thirty (30) days thereafter.
This provision shall survive the expiration or
earlier termination of the term of this Lease.
(g) The Landlord shall keep and make available to the
Tenant at the business office of the Landlord
where such records are stored, for a period of
sixty (60) days after statements are rendered as
provided in this Paragraph 20, records in
reasonable detail of the payment of Real Estate
Taxes and operating Expenses for the period
covered by such statement or statements and shall
permit the Tenant's CPA consultant to examine and
audit such of its records as may be reasonably be
required to verify such statements, at reasonable
times during business hours.
Condition of 21. No later than February 1, 1994 the Landlord shall make
Premises available to the Tenant the leased premises for the
purpose of the Tenant's construction of Tenant's fit-
up. The Tenant's taking possession shall be conclusive
evidence as against the Tenant that the Premises were
in good order and satisfactory condition when the
Tenant took possession. No promise of the Landlord to
alter, remodel or improve the Premises or the Building
and no representations respecting the condition of the
Premises, or the Building have been made by the
Landlord to the Tenant, unless the same is contained
herein, or made a part hereof. Tenant shall accept the
space in an "as is" condition.
If for any reason Landlord delays said date of February
1,1994, causing Tenant's inability to complete fit-up
by the lease commencement date, Landlord shall then
agree to offset rent proportionally until fit-up is
substantially completed.
At the termination of this Lease, by lapse of time or
otherwise, the Tenant shall return the Premises
including .the improvements made prior to initial
occupancy in as good condition as when the lease
commenced, ordinary wear and loss by fire or other
casualty insured under valid and collectible fire and
standard extended coverage insurance policies excepted,
failing which the Landlord may restore the Premises to
such condition and the Tenant shall pay the cost
thereof and this obligation shall survive the
expiration or earlier termination of this Lease.
Save Harmless 22. The Tenant agrees to indemnify and save harmless the
Landlord and the Landlord's management contractor
against an from any and all claims by or on behalf of
any person or persons, firm or firms, corporation or
corporations, arising from the Tenant's use or
occupancy of the Premises or the conduct of its
business or from any activity, work, or thing done,
permitted or suffered by the Tenant, in or about the
Premises, (or any parking lot or structure, if
applicable) and will further indemnify and save the
Landlord and the Landlord's management contractor
harmless against and from any and all claims arising
from any breach or default on the Tenant's part in the
performance or observance of any covenant or agreement
on the Tenant's part to be performed or observed
pursuant to the terms of this Lease, or arising from
any act or negligence of the Tenant; or any of its
agents, contractors, servants, employees or licensees,
and from and against all costs, counsel fees, expenses
and liabilities incurred in connection with any such
claim or action or proceeding brought thereon; and will
further indemnify and save the Landlord and Landlord's
management contractor harmless against and from any and
all environmental damages which arise from: (1) the
Handling of any Tenant's Hazardous Materials, as
defined in this Lease, or (ii) the breach of any of the
provisions of this Lease. For the purpose of this
Lease, "environmental damages" shall mean: (a) all
claims, judgments, damages, penalties, fines, costs
liabilities and losses (including, without limitation,
diminution in the value of the Premises or any portion
of the Building, and from any adverse impact of
Landlord's marketing of space); (b) all reasonable sums
paid for claims, attorneys' fees, consultants fees and
experts' fees; and (a) all costs incurred by Landlord
in connection with investigation or resediation
relating to the Handling of Tenant's Hazardous
Materials, whether or not required by the Environmental
Laws, necessary for Landlord to make full economic use
of the Premises or any portion thereof the Building, or
otherwise required under this Lease. To the extent
that Landlord is strictly liable under any
Environmental Laws, Tenant's obligations to Landlord
and the other indemnities under the foregoing
indemnification shall likewise be without regard to
fault on Tenant's part with respect to the violation of
any Environmental Law which results in liability to the
indemnity. Tenant's obligations and liabilities
pursuant to this Paragraph shall survive the expiration
or earlier termination of this Lease and in case any
action or proceeding be brought against the Landlord or
the Landlord's management contractor by reason of any
such claim, the Tenant upon notice from the Landlord
covenants to resist or defend at the Tenant's expense
such action or proceeding by counsel reasonably
satisfactory to the Landlord. The Tenant, as a
material part of the consideration to the Landlord,
hereby ass all risk of damage to property in, upon or
about the Premises and Building (and any motor
vehicles, if applicable) from any source and to
whomever belonging, and the Tenant hereby waives all
claims in respect thereof against the Landlord and the
Landlord's management contractor and agrees to defend
and save the Landlord and the Landlord's management
contractor harmless from and against any such claims by
others.
Possession 23. In the event of the failure of the Landlord to deliver
possession of the Premises at the time of the
commencement of the term of this lease, neither the
Landlord nor its contractors, subcontractors,
employees, agents or management contractor shall be
liable for any damage caused thereby, nor shall this
Lease thereby became void or voidable, nor shall the
tern herein specified be in any way extended, but in
such event the term shall begin when the Landlord does
deliver possession of the Premises and the Tenant shall
not be liable for any rent until the time that the
Landlord delivers such possession.
Quiet 24. The Landlord covenants and agrees that the Tenant on
Enjoyment paying the rent, including additional rent, and
performing and observing the covenants on the Tenant's
part to be performed and observed hereunder, shall and
may peaceably and quietly hold and enjoy these Premises
for the term of this Lease, subject to the provisions
of this Lease.
Miscellaneous 25. (a) No receipt of money by the Landlord from the
Tenant after the termination of this Lease or
after the service of any notice or after the
commencement of any suit, or after final Judgment
for possession of the Premises shall renew,
reinstate, continue or extend the term of this
Lease or affect any such notice, demand or suit.
(b) No waiver of any default of the Tenant hereunder
shall be implied from any omission by the Landlord
to take any action on account of such default if
such default persists or be repeated, and no
express waiver shall affect any default other than
the default specified in a written waiver and then
only for the time and to the extend therein
stated. The invalidity or unenforceability of any
provision hereof shall not affect or impair any
other provision and the invalid or unenforceable
provision shall be deemed restated to comply with
local law.
(c) The word "Tenant" wherever used in this Lease
shall be construed to mean Tenants in all cases
where there is more than one Tenant, and the
necessary grammatical changes required to make the
provisions hereof apply either to corporations or
individuals, men or women, shall in all cases be
assumed as though in each case fully expressed.
(d) Provisions inserted herein or affixed hereto shall
not be valid unless appearing in the duplicate
original hereof held by the Landlord.
(e) Each provision hereof shall extend to and shall,
as the case may require, bind and inure to the
benefit of the Landlord and the Tenant and their
respective heirs, legal representatives,
successors, and assigns in the event this Lease
has been assigned with the written consent of the
Landlord.
(f) The headings of Paragraphs are for convenience
only and do not limit or construe the contents of
the Paragraphs.
(g) Submission of this instrument for examination does
not Constitute a reservation of or option for the
Premises. The instrument becomes effective as a
lease upon execution and delivery by both the
Landlord and the Tenant.
(h) All amounts (other than annual rent and escalation
payments) owed by the Tenant to the Landlord
hereunder shall be paid within ten (10) days from
the date the Landlord renders statements of
account therefor, but in no event shall rent
payment be due prior than the date provided for in
Section 1, and all such amounts as well as rents
and escalation payments shall bear interest from
their respective due date until paid at the annual
rate of one and one-half percent (1.5%) above the
prime interest rate established, from time to
time, by the largest commercial bank in the state
in which the Building is located. All such
amounts other than annual rent shall be deemed
additional rent or rents.
(i) The Tenant may occupy the Premises prior to the
commencement of the term of this Lease with the
Landlord's written consent, and in such case all
the provisions of this Lease shall be in full
force and effect as soon as the Tenant occupies
the Premises, and the Tenant shall pay rent for
the period prior to the stated commencement of the
tern at the rate per month set forth herein.
(j) Where access to a Building vending room through
the Premises the Tenant will permit the company
licensed by the Landlord to operate vending
machines in such vending room and its agents or
employees to have access to such vending room
during the Tenant's normal business hours.
(k) No rights to any view or to light or air over any
property, whether belonging to Landlord or any
other person, are granted to Tenant by this Lease.
(1) All rights and remedies of Landlord under this
Lease shall be cumulative and none shall exclude
any other rights and remedies allowed by law.
(m) Landlord shall have the right to apply payments
received from Tenant pursuant to this Lease
(regardless of Tenant's designation of such
payments) to satisfy any obligations of Tenant
hereunder, in such order and amounts, as Landlord
in its sole discretion, may elect.
(n) Time is of the essence of this Lease and each of
its provisions.
Restrictions 26. (a) Tenant shall not use the Premises, or permit the
on Use Premises to be used, in any manner which: (i)
violates any law, ordinance, regulation or
directive of any governmental authority having
jurisdiction, including, without limitation, any
certificate of occupancy., or any covenant,
condition or restriction affecting the Building or
the Premises; (ii) causes or is reasonably likely
to cause damage to the Building or the Premises;
(iii) violates a requirement or condition of any
fire and extended insurance policy covering the
Building and/or the Premises, or increases the
cost of such policy; (iv) constitutes or: is
reasonably likely to constitute a nuisance,
annoyance or inconvenience to other tenants or
occupants of the Building or interferes with the
use and occupancy of any portion of the Building
for other tenants or occupants; (v) impairs or is
reasonably likely to impair the property
maintenance, operation or repair of the Building
or its equipment, facilities or systems; (vi)
interferes with, or is reasonably likely to
interfere with, the transmission or reception of
microwave, television, radio, telephone or other
communication signals by antennae or other
facilities located in the Building; or (vii)
violates the Rules and Regulations described in
Rider A.
(b) In addition to any other amounts payable by Tenant
to Landlord hereunder, Tenant shall pay to
Landlord, as and when billed by Tenant and as
additional rent, Tenant's pro rata share of the
cost of improvements, capital expenditures,
repairs or replacements to the Building, or any
equipment or machinery used in connection with the
Building, if any such item is required under
governmental laws, regulations, ordinances, or
interpretations thereof, which were not applicable
to the Building at the time the Building was
constructed; provided, however, that any such
costs which are properly charged to a capital
account shall not be payable in a single year, but
shall instead be amortized over their useful
lives, as determined by the Landlord in accordance
with generally accepted accounting principles, and
only the annual amortization amount (prorated
based on the number of days of the Lease term in
the calendar year) shall be payable by the Tenant
with respect to any calendar year.
Security 27. The Tenant has deposited with the Landlord the sum of
$30,411.94 as security for the faithful performance and
observance by the Tenant of the terms, provisions and
conditions of this Lease to be applied to Tenant's 12th
month rent. In the event the Tenant defaults in
respect of any of the terms, provisions and conditions
of this Lease including, but not limited to, the
payment of rent and additional rent, the Landlord may
use, apply or retain the whole or any part of the
security so deposited to the extent required for the
payment of any rent and additional rent or any other
sum as to which the Tenant is in default or for any sum
which the Landlord may expend or nay be required to
expend by reason of the Tenant's default in respect of
any of the terms, covenants and conditions of this
Lease, including, but not limited to, any damages or
deficiency in the reletting of the Premises, whether
such damages or deficiency accrued before or after
summary proceedings or other reentry by the Landlord.
In the event that the Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and
conditions of this, Lease, the security shall be
returned to the Tenant after the date fixed as the end
of this Lease and after delivery of possession of the
entire Premises to the Landlord. In the event of a
sale of the Building or leasing of the Building, the
Landlord shall have the right to transfer the security
to the vendee or lessee and the Landlord shall
thereupon be released by the Tenant from all liability
for the return of such security; and the Tenant agrees
to look solely to the new Landlord for the return of
said security; and is agreed that the provisions hereof
shall apply to every transfer or assignment made of the
security to a new Landlord. The Tenant further
covenants that it will not assign or encumber or
attempt to assign or encumber the monies deposited
herein as security and that neither the Landlord nor
its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or
attempted encumbrance.
Hazardous 28. (a) No Hazardous Materials, as defined herein, shall
Materials be Handled, as also defined herein, upon, about,
above or beneath the Premises or any portion of
the Building by or on behalf of Tenant, its
subtenants or its assignees, or their respective
contractors, clients, officers, directors,
employees, agents or invitee. Any such Hazardous
Materials so Handled shall be known as Tenant's
Hazardous Materials. Notwithstanding the
foregoing, normal quantities of those Hazardous
Materials customarily used in the conduct of
general administrative and executive office
activities (e.g., copier fluids and cleaning
supplies) may be used and stored at the Building
without Landlord's prior written consent, but only
in compliance with all applicable Environmental
Laws, as defined herein.
(b) Notwithstanding the obligation of Tenant to
indemnify Landlord pursuant to this Lease, Tenant
shall, at its sole cost and expense, promptly take
all actions required by any federal, state or
local government agency or political subdivision,
or necessary for Landlord to make full economic
use of the Building or any portion of the
Building, which requirements or necessity arises
from the Handling of Tenant's Hazardous Materials
upon, about, above or beneath the Premises or any
portion of the Building. Such actions shall
include, but not be limited to, the investigation
of the environmental condition of the Building or
any portion of the Building, the preparation of
any feasibility studies or reports and the
performance of any cleanup, remedial, removal or
restoration work. Tenant shall take all actions
necessary to restore the Building or any portion
of the Building to the condition existing prior to
the introduction of Tenant's Hazardous Materials,
notwithstanding any less stringent standards or
remediation allowable under applicable
Environmental Laws. Tenant shall nevertheless
obtain Landlord's written approval prior to
undertaking any actions required by this
Paragraph, which approval shall not be
unreasonably withheld so long as such actions
would not potentially have a material adverse
long-term or short-term effect on the Premises or
any portion of the Building.
(c) "Environmental Laws" means and includes all now
and hereafter existing statutes, laws, ordinances,
codes, regulations, rules, rulings, orders,
decrees, directives, policies and requirements by
any federal, state or local governmental authority
regulating, relating to or imposing liability or
standards of conduct concerning public health and
safety or the environment.
(d) "Hazardous Materials" means (i) any material or
substance: (i.a) which is defined or becomes
defined as "hazardous substance," "hazardous
waste," "infectious waste," "chemical mixture or
substance," or "air pollutant" under Environmental
laws; (i.b) containing petroleum, crude oil or any
fraction thereof which is liquid at standard
conditions of temperature and pressure; (i.c)
containing polychlorinatedbiphenyls ("PCBs");
(i.d) containing asbestos, (i.e) which is
radioactive; or (ii) any other pollutant or
contaminant or hazardous, toxic, flammable or
dangerous chemical, waste, material or substance,
as all such terms are used in their broadest
sense, and defined, regulated or become regulated
by Environmental Laws, or which cause a nuisance
upon or waste to the Premises or any portion of
the Building.
(e) "Handle," "Handled," or "Handling," shall mean any
installation, handling, generation, storage,
treatment, waste disposal, discharge, release,
manufacture, refinement, presence, migration,
emission, abatement, removal, transportation, or
any other activity of any type in connection with
or involving Hazardous Materials.
Insurance 29. Tenant shall purchase and maintain insurance during the
entire term for the benefit of Tenant and Landlord (as
their interest may appear) with terms, coverage and in
companies satisfactory to Landlord, and with such
increases in limits as Landlord may from time to time
request, but initially Tenant shall maintain the
following coverage in the following amounts:
(i) Comprehensive General Liability Insurance naming
Tenant, Landlord, Landlord's beneficiary and
Landlord's management agent covering any liability
for bodily injury, personal injury and property
damage arising out of Tenant's operations, assumed
liabilities or use of the Premises, for limits of
liability not less than:
Bodily Injury Liability $1,000,000 each occurrence
$3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
Property Damage Liability $1,000,000 each occurrence
$3,000,000 annual aggregate
(ii) Physical Damage Insurance covering all office
furniture, trade fixtures, office equipment,
merchandise and all other items of Tenant's
property on the Premises. Such insurance shall be
written on an "all risks" of physical loss or
damage basis, for the full replacement cost value
of the covered items and in amounts that meet any
coinsurance clause of the policies of insurance.
Tenant shall, prior to the commencement of the term,
furnish to Landlord certificates evidencing such
coverage, which certificates shall state that such
insurance coverage may not be changed or cancelled
without at least ten (10) days prior written notice to
Landlord and Tenant.
Tenant shall comply with all applicable laws and
ordinances, all orders and decrees of court and all
requirements of other governmental authorities, and
shall not, directly or indirectly, make any use of the
Premises which nay thereby be prohibited or be
dangerous to person or property or which may jeopardize
any insurance coverage or may increase the cost of
insurance or require additional insurance coverage. If
by reason of the failure of Tenant to comply with the
provisions of this Paragraph, any insurance coverage is
jeopardized or insurance premiums are increased,
Landlord shall have the option either to terminate this
Lease or to require Tenant to make immediate payment of
this increased insurance premium.
Limitation 30. It is expressly understood and agreed by and between
on Liability the parties hereto, anything herein to the contrary
notwithstanding, that each and all of the
representations., covenants, undertakings and
agreements herein made on the part of the Landlord,
while in form purporting to be representations,
covenants, undertakings and agreements of the Landlord,
are, nevertheless, each and every one of them, made and
intended not as personal representations, covenants,
undertakings and agreements by the Landlord or for the
purpose or with the intention of binding said Landlord
personally, but are made and intended for the purpose
of binding only Landlord's interest in the Premises to
the terms of this Lease and for no other purpose
whatsoever, and in the event of a default by Landlord,
Tenant shall look solely to the interest of Landlord in
the Premises. No duty shall rest upon Landlord to
sequester the Premises or the rents, issues and profits
arising therefrom, or the proceeds arising from the
sale or other disposition thereof. No personal
liability or personal responsibility is assumed by nor
shall at any time be asserted or enforceable against
Landlord on account of this Lease or on account of any
representation, covenant, undertaking or agreement of
the Landlord in this Lease contained, either expressed
or implied, all such personal liability, if any, being
expressly waived and released by the Tenant herein and
to all persons claiming by, through or under said
Tenant. The foregoing limitation on Landlord's
liability shall inure to and for the benefit of
Landlord and its successors and assigns and their
shareholders, officers, directors, partners, agents and
employees.
Estoppel 31. Tenant agrees, that, from time to time upon not less
Certificate than ten (10) days prior request by Landlord, Tenant,
or Tenant's duly authorized representative having
knowledge of the following facts, will deliver to
Landlord a statement in writing certifying (i) that
this Lease is unmodified and in full force and effect
(or if there have been modifications, a description of
such modifications and that the Lease as modified is in
full force and effect); (ii) the dates to which rent
and other charges have been paid; (iii) that the
Landlord is not in default under any provision of this
Lease, or, if in default, the nature thereof in detail;
and (iv) such further matters as may be requested by
Landlord, it being intended that any such statement may
be relied upon by any mortgagees or prospective
mortgagees thereof, or any prospective assignee of any
mortgagees thereof, or any prospective and/or
subsequent purchaser or transferee of all or at part of
Landlord's interest in the land and/or Building.
Tenant shall execute and deliver whatever instruments
may be required for such purposes, and in the event
Tenant fails so to do within ten (10) days after demand
in writing, Tenant shall be considered in default under
this Lease.
Brokerage 32. Tenant represents and warrant unto Landlord that Tenant
Commission has directly dealt with and only with Landlord's
management agent, The ▇▇▇▇▇▇▇▇▇ Company, and The
▇▇▇▇▇▇▇▇ Company as Tenant broker in connection with
this Lease, and agrees to indemnify and hold harmless
Landlord from and against any and all claims or
demands, damages, liabilities and expenses of any type
or nature whatsoever arising from and against any and
all claims or demands, damages, liabilities and
expenses of any type or nature whatsoever arising by
reason of the Incorrectness or breach of the aforesaid
representation and warranty. Landlord shall pay, and
agrees to indemnify and hold harmless Tenant from and
against any claim by, Landlord's management agent and
the Tenant's Broker for its commission arising out of
the execution and delivery of this Lease. Both the
Tenant and Landlord indemnify each other should a claim
arise.
Miscellaneous 33. Landlord is providing Tenant with a $15.00 per square
foot fit-up allowance ($429,345.00) to be used as a
credit against the construction of the demised
premises. Said construction allowance may be applied
toward the cost of miscellaneous expenses to include
workstations, telephone and computer wiring, etc. All
such expenditures and or improvements shall remain the
property of the Landlord. All remaining fit-up
allowance following construction and Tenant's occupancy
shall revert back to the Landlord. In no event shall
any portion of the fit-up allowance be used for the
purpose and or cost of Tenant's relocation.
Rider A, C and Exhibit A are attached hereto and made a part thereof.
IN WITNESS WHEREOF, this instrument has been duly executed by the parties
hereto as of the day and year first above written.
INTERNATIONAL BUSINESS MACHINES CORPORATION
By:____________________________ Witness:___________________________
Title:________________________
SCT PUBLIC SECTOR, INC.
By:___________________________ Witness:___________________________
Title:________________________
RIDER A
Attached to and made part of
Lease Dated
made between
International Business Machines Corporation
and
SCT
Rules and Regulation
1. The sidewalks, halls, passages, elevators and stairways shall not to
obstructed by the Tenant or used for any purpose other than for
ingress to and egress from the Premises. The halls, passages,
entrances, elevators, stairways, balconies and roof are not for the
use of the general public, and the Landlord shall in all cases retain
the right to control and prevent access thereto of all persons whose
presence in the judgment of the Landlord shall be prejudicial to the
safety; character, reputation and interests of the Building and its
tenants, provided that nothing herein contained shall be construed to
prevent such access to persons with whom the Tenant normally deals in
the ordinary course of its business unless such persons are engaged in
illegal activities. The Tenant and its employees shall not go upon
the roof of the Building without the written consent of the Landlord.
2. The sashes, sash doors, windows, glass lights and any lights or
skylights that reflect or admit light into the halls or other places
of the Building shall not be covered or obstructed. The toilet rooms,
water and wash closets and other water apparatus shall not be used for
any purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever, shall be thrown therein, and
the expense of any, breakage, stoppage, or damage, resulting from the
violation of this rule, shall be borne by the Tenant who, or whose
clerk, agents, servants, or visitors, shall have caused it.
3. If the Landlord, by a notice in writing to the Tenant, shall object to
any curtain, blind, shade or screen attached to, hung in, or used in
connection with, any window or door of the Premises, such use of such
curtain, blind, shade or screen shall be forthwith discontinued by the
Tenant. No awnings shall be permitted on any part of the Premises.
4. No safes or other objects heavier than the lift capacity of the
freight elevators of the Building shall be brought into or installed
in the Premises. The Tenant shall not place a load upon any floor of
the Premises which exceed the load pen square foot which such floor
was designed to carry and which is allowed by law. The moving of
safes shall occur only between such hours as may be designated by, and
only upon previous notice, to the manager of the Building, and the
persons employed to move safes in or out of the Building must be
acceptable to the Landlord. No freight, furniture or bulky matter of
any description shall be received into the Building or carried into
the elevators except during hours and in a manner approved by the
Landlord.
5. The Tenant shall not use, keep, or permit to be used or kept in the
Premises any foul or noxious gas or substance, or permit or suffer the
Premises to be occupied or used in a manner offensive or Objectionable
to the Landlord or other occupants of the Building by reason of noise,
odors, and/or vibrations, or permit or suffer the Premises to be
occupied or used in a manner that, in the sole judgment of the
Landlord diminishes or threatens to diminish the quality or reputation
of the Building as a first class office structure or is not in keeping
with the reputation, integrity or standards of the Landlord, or
interfere in any way with other tenants or those having business
therein, nor shall any animals or birds (except Seeing Eye dog,) be
kept in or about the Building. The Tenant shall not place of install
any antennae or aerials or similar devices outside of or in the
Premises.
6. The Tenant shall not use or keep in the Building any inflammables
including, but not limited to kerosene, gasoline, naphtha and benzine,
(except cleaning fluids in small quantities and when in containers
approved by the Board of underwriters), or explosives or any other
articles of intrinsically dangerous nature, or use any method of
heating other than that supplied by the Landlord.
7. If the Tenant desires telephone or telegraph connections, the Landlord
will direct electricians as to where and how the wires are to be
introduced. No boring or cutting for wires or otherwise shall be made
without specific directions from the Landlord.
8. The Tenant, upon the termination of the tenancy, shall deliver to the
Landlord all the keys of offices, rooms and toilet rooms which shall
have been furnished the Tenant or which the Tenant shall have had
made, and in the event of loss of any keys so furnished shall pay the
Landlord therefor.
9. The Tenant shall not put down any floor covering in the Premises
without the Landlord's prior approval of the manner and method of
applying such floor covering.
10. On Saturdays, Sundays and holidays recognized by the Landlord and on
other day, between the hours of 6:00 p.m. and 8:00 a.m., access to the
Building, or to the halls, corridors, elevators or stairways in the
Building, or to the Premises may be refused unless the person seeking
access is known to the watchman of the Building in charge and has a
pass or is properly identified. The Landlord shall in no case be
liable for damages for the admission to or exclusion from the Building
of any person whom the Landlord has the right to exclude under Rule 1
above. In case of invasion, mob, riot, public excitement, or other
commotion, the Landlord reserves the right to prevent access to the
Building during the continuance of the same by closing the doors or
otherwise, for the safety of the tenants or the Landlord and
protection of property in the Building.
11. The Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage including, without limitation, keeping
doors locked and windows and other means of entry to the Premises
closed.
12. The Tenant shall not alter any lock or install a new or additional
lock or any bolt on any door of the Premises without prior written
consent of the Landlord. If the Landlord shall give its consent, the
Tenant shall in each case furnish the Landlord with a key for any such
lock.
13. Without the Landlord's prior written consent, the Tenant shall not use
the name of the Building (whether or not the Building is named or
commonly known as "The IBM Building" or the like) in its advertising
or other publicity or on its stationery or other correspondence or
otherwise and shall not use pictures of the Building in advertising or
publicity or otherwise.
14. The Tenant shall not make any room to room canvass to solicit business
from other tenants In the Building; and shall not exhibit, sell or
offer to sell, use, rent or exchange in or from the Premises unless
ordinarily embraced within the Tenant's use of the Premises specified
in the Lease.
15. The Tenant shall not waste electricity, water, or air conditioning and
agrees to cooperate fully with the Landlord to assure the most
effective operation of the Building's heating and air conditioning,
and shall not allow the adjustment (except by the Landlord's
authorized Building personnel) of any controls other than room
thermostats installed for the Tenant's use. The Tenant shall keep
corridor doors closed and shall not open any windows except that if
the air circulation shall not be in operation, windows which are
operable may be opened with the Landlord's consent.
16. The Tenant shall not do any cooking in the Premises or engage any
coffee cart or vending services.
17. Prior to removing furniture, equipment, or other items from the
Building, the Tenant must submit a written list of such items and
obtain approval thereof from the Office of the Building.
RIDER C
Attached to and made part of
Lease Dated _____
made between
International Business Machines Corporation
and
SCT
Gentlemen:
You (hereinafter called "Tenant") and we (hereinafter called "Landlord")
are executing simultaneously with this letter agreement, a written Lease
covering the space referred to above, as more particularly described in
said Lease (and hereinafter called the "Premises").
In consideration of the parties entering into the Lease and of the mutual
covenants hereinafter contained Landlord and Tenant agree as follows:
1. Tenant shall furnish its drawings and specifications to Landlord for
approval on or before October 30,1993, in sufficient detail so that
Landlord's architects and engineers can prepare the final drawings and
specifications at Tenant's expense. Tenant's drawings and
specifications shall be made subject to Landlord's approval, which
Landlord covenants it will not unreasonably withhold.
If Tenant shall desire work of a special nature to be performed in the
Premises by, Landlord or by Tenant, Tenant shall cause drawings and
specifications for such work to be drawn at Tenant's sole expense by
arranging therefor with the Landlord's architects and/or engineers.
All such drawings for special work shall be made subject to Landlord's
written approval which Landlord covenants it will not unreasonably
withhold.
2. Landlord agrees, at its sole expense and without charge to Tenant, to
supply and install in the Premises, the following building standard
items:
All ADA improvements necessary to meet the guidelines established by
the Federal Government. The above work to be completed at Landlord's
cost.
If, due to Tenant's requirements of special work or materials finishes
or installations other than Landlord's standard, Landlord incurs
additional costs in connection with the installation of the building
standard items which it has herein agreed to be installed, then Tenant
agrees to reimburse Landlord for the additional costs promptly upon
being billed therefor and the additional costs shall be due and
payable as additional rent under the Lease.
3. If Landlord should agree to perform, at Tenant's request, and upon
submission by Tenant of necessary drawings and specifications, any
special work other than that specified in Paragraph 2 hereof, such
work shall be performed by Landlord, at Tenant's sole expense, as a
Tenant's extra. Prior to commencing any such work requested by
Tenant, Landlord will submit to Tenant written estimates of the cost
of any such work. If Tenant shall fail to approve any such estimate
within one (1) week, the same shall be deemed disapproved in all
respects by Tenant and Landlord shall not be authorized to proceed
with such work. Tenant agrees to pay to Landlord, promptly upon being
billed therefor, the cost of all such work which shall be due and
payable as additional rent under the Lease.
4 It is agreed that, notwithstanding the date provided in the Lease for
the commencement thereof, Tenant's obligation for the payment of rent
thereunder shall commence April 1,1994.
Landlord, shall permit Tenant and its agents, at times approved in
advance by Landlord, to enter the Premises prior to the date specified
for the commencement of payment of rent under the Lease, in order that
Tenant may perform through its own subcontractors such work and
decorations as Tenant may desire at the same time that Tenant's
contractors are working in the space. The foregoing license to enter
prior to the commencement of the term, however, is conditioned upon
Tenant's contractors, workmen and employees working in harmony and not
interfering with the workmen, employees and contractors of Landlord or
any other tenant. If at any time such entry or work shall cause
disharmony or interference, this license may be withdrawn by Landlord.
Paragraph 4 of the Lease shall be deemed to be under all the terms,
covenants, provisions and conditions of the Lease except to the
covenant to pay rent. Landlord shall not be liable for any injury,
loss or damage which may occur to any of Tenant's decorations,
Fixtures, or installations so made prior to the commencement of the
term of the Lease, the same being solely at Tenant's risk.
If the foregoing correctly sets forth our agreement, kindly sign this
Workletter.
ACCEPTED:
SCT INTERNATIONAL BUSINESS MACHINES
CORPORATION
By:________________________________ By:_______________________________
___________________________________ __________________________________
Title Title
Date:______________________________ Date:_____________________________