EXHIBIT 10.12
OFFICE LEASE
THIS LEASE, dated this 21st day of May, 1998, by and between BLI-8787,
LTD., a Texas limited partnership ("Lessor"), and EXE TECHNOLOGIES, INC., a
Delaware corporation ("Lessee").
WITNESSETH:
That Lessor, in consideration of the rents and covenants hereinafter set
forth, does hereby lease and let unto Lessee, and Lessee does hereby hire and
take from Lessor, that certain space designated as Floors 1-5 of Tower II of
the office tower ("Office Tower II") known and described as Regal Stemmons
Corporate Center, located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, which is
located next to the adjacent office tower ("Office Tower I") located at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇. The aforesaid space leased and let unto
Lessee is hereinafter referred to as the "Premises"; the land (including all
easement areas appurtenant thereto) upon which the building or buildings of
which the Premises are a part is hereinafter referred to as the "Property";
and the Property and all buildings and improvements (including Office Tower I
and Office Tower II) and personal property of Lessor used in connection with
the operation or maintenance thereof located therein and thereon and the
appurtenant parking facilities, if any, are hereinafter called the "Office
Complex." Lessor represents and warrants to Lessee, to Lessor's actual
knowledge, that the Premises contains approximately 96,813 square feet of
rentable area and the Office Complex contains approximately 195,770 square
feet of rentable area. On or prior to the date sixty (60) days after the date
hereof, Lessor and Lessee shall be entitled to remeasure the rentable area of
the Premises in accordance with BOMA standards and if the measurements
reflect any discrepancy from the amounts stated herein, Lessor and Lessee
shall execute an amendment to this Lease for the purpose of adjusting, either
upward or downward, the Base Rent, Lessee's Proportionate Share of Real
Estate Taxes, Lessee's Proportionate Share of Operating Expenses and other
sums payable by Lessee hereunder. In the event that neither party obtains a
remeasurement of the rentable area of the Premises within such sixty (60) day
period as described above, then such right shall be waived and Base Rent,
Lessee's Proportionate Share of Real Estate Taxes, Lessee's Proportionate
Share of Operating Expenses and other sums payable by Lessee hereunder shall
be based upon the measurements as provided hereinabove.
Lessee hereby accepts this Lease and the Premises upon the covenants and
conditions set forth herein and subject to any covenants, conditions,
restrictions and other matters (other than liens) of record and all
applicable zoning, municipal, county, state and federal laws, ordinances and
regulations governing and regulating the use of the Premises (collectively,
the "Applicable Requirements"). Lessor represents and warrants to Lessee that
use of the Premises for office purposes is permitted, or will be permitted on
or prior to the Commencement Date (hereinafter defined), under all Applicable
Requirements, subject to Lessee Finish (defined in Section 16.27 hereof) and
obtaining a certificate of occupancy.
TO HAVE AND TO HOLD THE SAME, without any liability or obligation on the
part of Lessor to make any alterations, improvements or repairs of any kind
on or about the Premises, except as expressly provided herein, for a term of
ten (10) years and six (6) months, commencing on the date one hundred twenty
(120) days after the date hereof unless sooner terminated in the manner
provided hereinafter, to be occupied and used by Lessee for office purposes
and for any other lawful purpose consistent with a first class office
complex, subject to the covenants and agreements hereinafter contained.
ARTICLE 1
BASE RENT
SECTION 1.1 BASE RENT. In consideration of the leasing aforesaid, Lessee
agrees to pay to Lessor, at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, or at such other place as Lessor from time to time may designate in
writing, rent in an amount equal to $19.67 per square foot of rentable area
contained within the Premises per year for months 7 through 66 and $21.18 per
square foot of rentable area contained within the Premises per year for
months 67 through 126, sometimes hereinafter referred to as the "Base Rent,"
payable monthly, in advance, in equal installments of $158,692.64 per month
for months 7 through 66 and $170,874.95 per month for months 67 through 126,
commencing on the first day of the seventh month of the term and continuing
on the first day of each and every month thereafter for the next succeeding
months during the balance of the term. If the term commences on a date other
than the first day of a calendar month or ends on a date other
-1-
than the last day of a calendar month, monthly rent for the first month of
the term or the last month of the term, as the case may be, shall be prorated
based upon the ratio that the number of days in the term within such month
bears to the total number of days in such month. Base Rent and Additional
Rent for the Premises for the first six (6) months of the Lease term shall be
abated. Upon execution of this Lease, Lessee shall deliver to Lessor a check
in the amount of $158,692.64 for Base Rent for the seventh (7th) month of the
Lease term.
ARTICLE 2
ADDITIONAL RENT
SECTION 2.1 ADDITIONAL RENT. In addition to the Base Rent payable by
Lessee under the provisions of Article 1 hereof, Lessee shall pay to Lessor
"Additional Rent" as hereinafter provided for in this Article 2. All sums
under this Article and all other sums and charges required to be paid by
Lessee under the Lease (except Base Rent), however denoted, shall be deemed
to be "Additional Rent." If any such amounts or charges are not paid at the
time provided in the Lease, they shall nevertheless be collectible as
Additional Rent with the next installment of Base Rent falling due.
SECTION 2.2 DEFINITIONS. For the purposes of this Article 2, the parties
hereto agree upon the following definitions:
(a) "Lease Year" shall mean each of those calendar years commencing
with and including the year during which the term of this Lease
commences, and ending with the calendar year during which the term
of this Lease (including any extensions or renewals) terminates.
(b) "Real Estate Taxes" shall mean and include all personal property
taxes of Lessor relating to Lessor's personal property located in
Office Tower II and used or useful in connection with the operation
and maintenance thereof, real estate taxes and installments of
special assessments, including interest thereon, relating to Office
Tower II, and all other governmental charges, general and special,
ordinary and extraordinary, foreseen as well as unforeseen, of any
kind and nature whatsoever, or other tax, however described, which
is levied or assessed by the United States of America or the state
in which Office Tower II is located or any political subdivision
thereof, against Lessor or all or any part of Office Tower II as a
result of Lessor's ownership of Office Tower II, and payable during
the respective Lease Year. It shall not include any gross or net
income tax, estate tax, or inheritance tax, franchise taxes or
taxes imposed as a result of any transfer by Lessor of its interest
in this Lease, Office Tower II or any portion thereof.
(c) "Excess Real Estate Taxes" for an applicable Lease Year shall mean
the amount of Real Estate Taxes incurred for such applicable Lease
Year in excess of the sum of Real Estate Taxes incurred for 1998.
(d) "Operating Expenses" shall mean and include all expenses incurred
with respect to the maintenance and operation of the Property and
Office Complex as determined by Lessor's accountant in accordance
with generally accepted accounting principles consistently
followed, including, but not limited to, insurance premiums,
maintenance and repair costs, steam, electricity, water, sewer, gas
and other utility charges, fuel, lighting, window washing,
janitorial services, trash and rubbish removal, wages payable to
employees of Lessor whose duties are connected with the operation
and maintenance of the Property and Office Complex (but only for
the portion of their time allocable to work related to the Office
Complex), amounts paid to contractors or subcontractors for work or
services performed in connection with the operation and maintenance
of the Property and Office Complex, all costs of uniforms, supplies
and materials used in connection with the operation and maintenance
of the Property and Office Complex, all payroll taxes, unemployment
insurance costs, vacation allowances, and the cost of providing
disability insurance or benefits, pensions, profit sharing
benefits, hospitalization, retirement or other so-called fringe
benefits, and any other expense imposed on Lessor, its contractors
or subcontractors, pursuant to law or pursuant to any collective
bargaining agreement covering such employees (pro-rated according
to the portion of their time allocated to work related to the
Office Complex), all services, supplies, repairs, replacements or
other expenses for maintaining and operating the Office Complex,
reasonable attorneys' fees and costs in connection with appeal or
contest of real estate or other taxes or levies, and such other
expenses as may be ordinarily incurred in the operation and
maintenance of an office complex and not specifically set forth
herein, including reasonable management
-2-
fees and the costs of a building office at the Office Complex,
including the compensation of an on-site building manager. The term
"Operating Expenses" shall not include any capital improvement to
the Office Complex other than replacements required for normal
maintenance and repair, nor shall it include repairs, restoration
or other work occasioned by fire, windstorm or other insured
casualty, expenses incurred in leasing or procuring tenants,
leasing commissions, advertising expenses, expenses for renovating
space for new tenants, legal expenses incident to enforcement by
Lessor of the terms of any lease, interest or principal payments on
any mortgage or other indebtedness of Lessor, compensation paid to
any employee of Lessor above the grade of the on-site building
manager or building superintendent, depreciation allowance or
expense; costs occasioned by the exercise of eminent domain;
overhead and profit increment paid to subsidiaries or other
affiliates of Lessor for services on or to the Office Complex
and/or Premises to the extent that the costs of such services
exceed the competitive cost for such services rendered by persons
or entities of similar skill, competence and experience; fines,
penalties, legal fees or costs of litigation incurred due to the
late payment of taxes, utility bills and other costs; any penalties
or liquidated damages that Lessor pays to Lessee under this Lease
or to any other tenants under their respective leases; costs
associated with correcting any violation of any law existing as of
the date hereof; rental or lease charges on any equipment or
property the acquisition of which would normally be capitalized
under generally accepted accounting principals; and all items
(including repairs) and services for which Lessee or other tenants
pay directly to third parties or for which Lessee or other tenants
reimburse Lessor (other than as a reimbursement of Operating
Expenses). Notwithstanding the foregoing, in the event Lessor
installs equipment in or makes improvements or alterations to the
Office Complex which are for the purpose of reducing energy costs,
maintenance costs or other Operating Expenses or which are required
under any governmental laws, regulations, or ordinances which were
not required at the date of commencement of the term of this Lease,
Lessor may include in Operating Expenses reasonable charges for
interest on such investment and reasonable charges for depreciation
on the same so as to amortize such investment over the reasonable
life of such equipment, improvement or alteration on a straight
line basis but only to the extent of the savings resulting
therefrom. Operating Expenses shall also be deemed to include
expenses incurred by Lessor in connection with city sidewalks
adjacent to the Property and any pedestrian walkway system (either
above or below ground) or other public facility to which Lessor of
the Office Complex is from time to time subject in connection with
operations of the Property and Office Complex. Notwithstanding any
provision contained herein to the contrary, commencing January 1,
1999, in no event shall the amount of Operating Expenses used for
purposes of calculating Lessee's Proportionate Share of Operating
Expenses exceed in any year the amount of Operating Expenses used
for purposes of making such calculation for the prior year by more
than six percent (6%).
(e) "Excess Operating Expenses" shall mean the amount of Operating
Expenses incurred for any applicable Lease Year in excess of the
sum of Operating Expenses incurred during the first twelve (12)
months after the Commencement Date, adjusted to reflect an
occupancy rate for the Office Complex of the greater of: (1)
ninety-five percent (95%), or (ii) the actual occupancy rate.
(f) "Lessee's Pro Rata Share of Excess Real Estate Taxes" shall mean a
fraction, the numerator of which is the number of rentable square
feet contained within the Premises and the denominator of which is
the number of rentable square feet contained within Office Tower II,
and, represented as a percentage, is hereby stipulated to be
One Hundred percent (100%) of the Excess Real Estate Taxes for the
applicable Lease Year. Said percentage has been agreed upon by the
parties hereto after due consideration of the rentable area of the
Premises compared to the rentable area of Office Tower II;
provided, however, the percentage for Lessee's Pro Rata Share of
Excess Real Estate Taxes shall be amended each year to the greater
of the following: (i) if the total rentable area leased in Office
Tower II (pursuant to leases under which the term has commenced) is
95% or less than the total rentable area of Office Tower II, the
percentage shall be that which the rentable area of the Premises
bears to 95% of the total rentable area of Office Tower II for such
Lease Year; or (ii) if the total rentable area leased in Office
Tower II (pursuant to leases under which the term has commenced) is
greater than 95%, the percentage shall be that which the rentable
area of the Premises bears to the actual rentable area of Office
Tower II for the Lease Year. Rentable area shall in no event
include basement storage space or garage space.
-3-
(g) "Lessee's Pro Rata Share of Excess Operating Expenses" shall mean a
fraction, the numerator of which is the number of rentable square
feet contained within the Premises and the denominator of which is
the number of rentable square feet contained within the Office
Complex, and, represented as a percentage, is hereby stipulated to
be Forty-Nine percent (49%) of the Excess Operating Expenses for
the applicable Lease Year. Said percentage has been agreed upon by
the parties hereto after due consideration of the rentable area of
the Premises compared to the rentable area of the Office Complex;
provided, however, the percentage for Lessee's Pro Rata Share of
Excess Operating Expenses shall be amended each year to the greater
of the following: (i) if the total rentable area leased in the
Office Complex (pursuant to leases under which the term has
commenced) is 95% or less than the total rentable area of the
Office Complex, the percentage shall be that which the rentable
area of the Premises bears to 95% of the total rentable area of the
Office Complex for such Lease Year; or (ii) if the total rentable
area leased in the Office Complex (pursuant to leases under which
the term has commenced) is greater than 95%, the percentage shall
be that which the rentable area of the Premises bears to the actual
rentable area of the Office Complex for the Lease Year. Rentable
area shall in no event include basement storage space or garage
space.
SECTION 2.3 ADJUSTMENT OF OPERATING EXPENSES. Notwithstanding anything
to the contrary set forth above, it is agreed that in the event the Office
Complex is not fully occupied during any Lease Year, Operating Expenses for
such year shall be adjusted to the amount that would have been incurred had
the Office Complex been ninety-five percent (95%) occupied during such year;
provided, that a corresponding adjustment is made with respect to Operating
Expenses for 1998.
SECTION 2.4 NOT APPLICABLE.
SECTION 2.5 ESTIMATED EXCESS TAXES AND EXPENSES. As to each Lease Year
commencing January 1, 1999, Lessor shall estimate for each such Lease Year (a)
the total amount of Excess Real Estate Taxes; (b) the total amount of Excess
Operating Expenses; (c) Lessee's Pro Rata Share of Excess Real Estate Taxes;
(d) Lessee's Pro Rata Share of Excess Operating Expenses; (e) the computation
of the annual and monthly rental payable during such Lease Year as a result
of increases or decreases in Lessee's Pro Rata Share of Excess Real Estate
Taxes and Lessee's Pro Rata Share of Excess Operating Expenses. Said estimate
shall be in writing and shall be delivered or mailed to Lessee at the
Premises.
SECTION 2.6 PAYMENT OF ADDITIONAL RENT. Lessee shall pay, as Additional
Rent, the amount of Lessee's Pro Rata Share of Excess Real Estate Taxes for
each Lease Year and Lessee's Pro Rata Share of Excess Operating Expenses for
each Lease Year, so estimated, in equal monthly installments, in advance, on
the first day of each month during each applicable Lease Year. In the event
that said estimate is delivered to Lessee after the first day of January of
the applicable Lease Year, said amount, so estimated shall be payable as
Additional Rent, in equal monthly installments, in advance, on the first day
of each month over the balance of such Lease Year, with the number of
installments being equal to the number of full calendar months remaining in
such Lease Year.
SECTION 2.7 RE-ESTIMATES OF EXCESS TAXES AND EXPENSE. From time to time
during any applicable Lease Year, Lessor may re-estimate the amount of Excess
Real Estate Taxes and Excess Operating Expenses and Lessee's Pro Rata Share
thereof, and in such event Lessor shall notify Lessee, in writing, of such
re-estimate in the manner above set forth and fix monthly installments for
the then remaining balance of such Lease Year in an amount sufficient to pay
the re-estimated amount over the balance of such Lease Year after giving
credit for payments made by Lessee on the previous estimate.
SECTION 2.8 ADJUSTMENT OF ACTUAL TAXES AND EXPENSE. Upon completion of
each Lease Year, Lessor shall cause its accountants to determine the actual
amount of Excess Real Estate Taxes and Excess Operating Expenses for such
Lease Year and Lessee's Pro Rata Share thereof and deliver a written
certification of the amounts thereof to Lessee within ninety (90) days after
the end of each Lease Year. If Lessee has paid less than its Pro Rata Share
of Excess Real Estate Taxes or its Pro Rata $hare of Excess Operating
Expenses for any Lease Year, Lessee shall pay the balance of its Pro Rata
Share of the same within thirty (30) days after receipt of such statement. If
Lessee has paid more than its Pro Rata Share of Excess Real Estate Taxes or
its Pro Rata Share of Excess Operating Expenses for any Lease Year, Lessor
shall, at Lessee's option, either (a) refund such excess, or (b) credit such
excess against the most current monthly installment or installments due
Lessor for its estimate of Lessee's Pro Rata Share of Excess Real Estate
Taxes and Lessee's Pro Rata Share of
-4-
Excess Operating Expenses for the next following Lease Year. A pro rata
adjustment shall be made for a fractional Lease Year occurring during the term
of this Lease or any renewal or extension thereof based upon the number of
days of the term of this Lease during said Lease Year as compared to three
hundred sixty-five (365) days and all additional sums payable by Lessee or
credits due Lessee as a result of the provisions of this Article 2 shall be
adjusted accordingly. Notwithstanding anything contained herein to the
contrary, Lessee shall be entitled to inspect Lessor's books and records
relating to Operating Expenses at any time during the term of this Lease by
delivering fifteen (15) days prior written notice thereof to Lessor. In the
event Lessee's inspection reflects that Lessor's determination of Operating
Expenses is in error, Lessor and Lessee shall promptly make any necessary
adjustments, and if Lessor's determination is in error by more than five
percent (5%), Lessor shall reimburse Lessee for the reasonable cost of such
inspection.
SECTION 2.9 OTHER ADDITIONAL RENT. Further, Lessee shall pay, also as
Additional Rent, all other sums and charges required to be paid by Lessee
under this lease, and any tax or excise on rents, gross receipts tax, or
other tax, however described, which is levied or assessed by the United
States of America or the state in which the Office Complex is located or any
political subdivision thereof, against Lessor in respect to the Base Rent,
Additional Rent, or other charges reserved under this Lease or as a result of
Lessor's receipt of such rents or other charges accruing under this Lease;
provided, however, Lessee shall have no obligation to pay gross or net income
or franchise taxes of Lessor.
ARTICLE 3
BASE AND ADDITIONAL RENT
SECTION 3.1 INTEREST ON PAST DUE OBLIGATIONS. Any installment of Base
Rent, Additional Rent, or other charges to be paid by Lessee accruing under
the provisions of this Lease which shall not be paid when due shall bear
interest at the rate of fifteen percent (15%) per annum from the date which
is ten (10) days after written notice from Lessor that same is due until the
same shall be paid, but if such rate exceeds the maximum interest rate
permitted by law, such rate shall be reduced to the highest rate allowed by
law under the circumstances.
SECTION 3.2 RENT INDEPENDENT. Lessee's covenants to pay the Base Rent
and the Additional Rent are independent of any other covenant, condition,
provision or agreement herein contained, except as otherwise provided herein.
Nothing herein contained shall be deemed to suspend or delay the payment of
any amount of money or charge at the time the same becomes due and payable
hereunder, or limit any other remedy of Lessor, except as otherwise provided
herein. Base Rent and Additional Rent are sometimes collectively referred to
as "Rent." Rent shall be payable without deduction, offset, prior notice or
demand, in lawful money of the United States, except as otherwise provided
herein.
SECTION 3.3 LETTER OF CREDIT. As security for its obligations under this
Lease and its lease of space in the adjacent office tower, Lessee shall
deliver to Landlord an irrevocable standby letter of credit (the "Letter of
Credit") issued by a bank with at least One Billion Dollars in assets by June
30, 1998. The Letter of Credit shall be in such amount and shall be released
as provided in EXHIBIT "C" attached hereto and made a part hereof for all
purposes. Lessor shall be permitted to draw the full amount of the Letter of
Credit in the event of a monetary default by Lessee hereunder which is not
cured within thirty (30) days after written notice from Lessor or if the
Letter of Credit is not renewed at least thirty (30) days prior to its
expiration date for so long as it is required to be maintained hereunder. Any
amount drawn by Lessor shall be held by Lessor in a separate account or
certificate of deposit with a federally insured financial institution and
shall serve as security for the obligations of Lessee, and may be applied by
Lessor to any damages incurred by Lessor as a result of the breach of
Lessee's obligations.
-5-
ARTICLE 4
POSSESSION OF PREMISES
SECTION 4.1 DELAYED OR EARLIER POSSESSION. The parties hereto agree that
Lessee shall be entitled to occupy the second (2nd) floor of Office Tower II
of the Office Complex (the "Interim Premises"), on the date of execution of
this Lease and continuing thereafter until the Commencement Date of this
Lease and Lessee shall be entitled to occupy the first (1st) floor of Office
Tower II on the date of execution of this Lease for purposes of installing
and constructing Lessee's Finish. Such early occupancy shall be subject to
all of the terms and conditions hereof except the obligation to pay Rent;
provided, Lessee will be responsible for all costs and expenses incurred
because of Lessee's occupancy of the Interim Premises and the first (1st)
floor of Office Tower Il prior to the Commencement Date, including, without
limitation, the additional costs of electricity, utilities and security.
Furthermore, Lessee shall be responsible to return the Interim Premises to
Lessee in the condition that it was in prior to Lessee's occupancy of the
Interim Premises, and Lessee shall fully vacate the Interim Premises on or
prior to the Commencement Date.
SECTION 4.2 EFFECT OF POSSESSION. Lessee acknowledges that neither
Lessor nor any agent of Lessor has made any representation or warranty with
respect to the Premises or the Office Complex or with respect to the
suitability or fitness of either for the conduct of Lessee's business or for
any other purpose other than that the Premises may be used lawfully for
office purposes and that, to Lessor's actual knowledge, the Premises, the
Property and the Office Complex are in substantial compliance with all
applicable laws, including environmental laws, building and fire codes, and
the Americans with Disabilities Act. Nothing contained in this Article shall
affect the commencement of the lease term or the obligation of Lessee to pay
any Rent due under this Lease except as otherwise provided herein.
SECTION 4.3 PERMITTED USE. Lessee shall use and occupy the Premises for
the purpose described on page 1 of this Lease and shall not use or permit the
Premises to be used for any other purpose without the prior written consent
of Lessor, which consent Lessee agrees may be withheld by Lessor in its sole
and absolute discretion.
SECTION 4.4 COMPLIANCE WITH ENVIRONMENTAL LAWS. Lessee shall not (either
with or without negligence) cause or permit the escape, disposal or release
of any biologically or chemically active or other hazardous substances or
materials in violation of any applicable law, including any environmental
law. Lessee shall not allow the storage or use of such substances or
materials in any manner not permitted by all applicable laws, including
environmental laws and by the standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Office Complex any such materials or substances except to use in the
ordinary course of Lessee's business, and then only after written notice is
given to Lessor of the identity of such substances or materials. Without
limitation, hazardous substances and material shall include those described
in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq.,
any applicable state or local laws and the regulations adopted under these
acts. If any lender or governmental agency shall ever require testing to
ascertain whether or not there has been any release of hazardous materials by
Lessee, then the reasonable costs thereof shall be reimbursed by Lessee to
Lessor upon demand as additional charges if such requirement applies to the
Premises. In addition, Lessee shall execute affidavits, representations and
the like from time to time at Lessor's request concerning Lessee's best
knowledge and belief regarding the presence of hazardous substances or
materials on the Premises. In all events, Lessee shall indemnify Lessor in
the manner elsewhere provided in this Lease from any release of hazardous
materials on the Premises occurring while Lessee is in possession, or
elsewhere if caused by Lessee or persons acting under Lessee. The within
covenants shall survive the expiration or earlier termination of the term of
this Lease. Lessor represents and warrants to Lessee that, to Lessor's actual
knowledge, the Premises and the Office Complex are in compliance with all
environmental laws and that, to Lessor's actual knowledge, except as
otherwise disclosed in an environmental report dated December 8,1997, from
Spectrum Assessment and Engineering, Inc., no hazardous materials have been
stored, used or released on the Office Complex as of the date of execution of
this Lease. Lesser shall indemnify Lessee from any release of hazardous
materials on the Premises occurring prior to Lessee's possession of the
Premises.
-6-
SECTION 4.5 SUBLEASE. In the event that the Sublease of even date
herewith between Lessee, as sublessor, and Lessor, as sublessee, is
terminated by bankruptcy, operation of law or otherwise, then this Lease
shall terminate as to, and the Premises shall cease to include, the Sublease
Premises, as defined in such Sublease, and the obligations of Lessee,
including the obligation to pay rent hereunder, shall cease and ▇▇▇▇▇ as to
the Sublease Premises.
ARTICLE 5
SERVICES
SECTION 5.1 SERVICES PROVIDED BY LESSOR. Subject to the provisions of
Article 2 hereof, Lessor shall provide the following services on all days
excepting Saturdays, Sundays, holidays, and as otherwise stated:
(a) JANITORIAL SERVICE. Nightly janitorial services Monday through
Friday in and about the Premises. The janitorial services furnished
to the Premises shall include normal cleaning and upkeep services,
normal removal of trash and rubbish, vacuuming and spot cleaning of
carpeting, maintenance of towels, tissue and other restroom
supplies and such other work as is customarily performed in
connection with such nightly janitorial services in an office
complex similar in construction, general location, use and
occupancy to the Office Complex. Lessor shall also provide periodic
interior and exterior window washing and cleaning and waxing of
uncarpeted floors in accordance with Lessor's reasonable schedule.
(b) ELECTRICAL ENERGY. Electrical energy will be provided for lighting
and operation of office machines, air conditioning, and heating as
required for normal office usage during the normal working hours
set forth in subparagraph (c) of this Article. The cost for such
electrical energy shall be directly metered and be payable by
Lessee. Office machines will include computers, printers, copy
machines, scanners, fax machines, electronic and electric
typewriters and other office equipment. Lessee shall pay the cost
of all equipment and of the installation of all facilities provided
and installed by Lessor to provide such electrical capacity in
excess of the above normal office standards. Lessee shall not make
any installation requiring excess electrical energy without first
receiving Lessor's written consent thereto, which shall not be
unreasonably withheld; and provided further that Lessee shall pay
all costs of installation of facilities necessary to furnish such
excess capacity and for such increased electrical usage. All
electric lighting bulbs and tubes and all ballasts and starters
within the Premises shall be replaced by Lessor at the expense of
Lessor. The electrical service required of Lessor by this
subparagraph (b), and electricity for other uses consented to by
Lessor, shall be available at all times subject to the requirement
that Lessee pay for usage in excess of the electrical service to be
provided pursuant to the terms of this subparagraph (b).
(c) HEATING AND AIR CONDITIONING. Heat and air conditioning for normal
comfort from 8:00 a.m. to 5:30 p.m., and on Saturdays which are not
holidays, from 8:00 a.m. to 1:00 p.m. The cost for such heat and
air conditioning shall be directly metered and be payable by
Lessee. Air conditioning to the Premises is to be provided based on
standard lighting and normal incidental office use only. During
other hours, Lessor shall provide such amounts of heating and air
conditioning upon a reasonable advance notice from Lessee to
Lessor, which advance notice shall not be less than twenty-four
(24) hours.
(d) WATER. Hot and cold water from the regular building outlets and/or
as installed by Lessee at Lessee's cost, for lavatory and restrooms
and for drinking purposes.
(e) PASSENGER ELEVATOR SERVICE. Passenger elevator service in common
with other tenants to be provided by automatic elevators
twenty-four (24) hours per day. Lessor shall have the right to
restrict the use of elevators for freight purposes to the freight
elevator and to hours to be determined by Lessor. Lessor shall have
the right to limit the number of elevators to be in operation on
Saturdays, Sundays and holidays.
(f) PARKING FACILITIES, LANDSCAPED AREAS AND COMMON AREAS. Maintenance
in good order, condition and repair of the parking facilities and
all driveways leading thereto and keeping the same free from any
unreasonable accumulation of snow. Lessor shall keep and maintain
the Office Complex and landscaped area and parking facilities and
all common areas in a neat and orderly condition, and in first
class condition and repair.
-7-
Lessor shall promptly remove or cause to be removed any
unauthorized vehicles from the parking facilities. Lessor reserves
the right to designate areas of the appurtenant parking facilities
where Lessee, its agents, employees and invitees shall park and may
exclude Lessee, its agents, employees and invitees from parking in
other areas as designated by Lessor, provided, however, Lessor
shall not be liable to Lessee for the failure of any tenant, its
invitees, employees, agents, and customers to abide by Lessor's
designations or restrictions. Notwithstanding anything to the
contrary contained herein, in no event may Lessee utilize, at any
time, more than Lessee's proportionate share of the number of
garage parking spaces, uncovered parking spaces and handicapped
spaces, respectively, located at the Office Complex. Lessee's
proportionate share of such parking spaces shall be calculated by
dividing the number of rentable square feet contained within the
Premises by the number of rentable square feet contained within the
Office Complex, and is hereby stipulated to be 253 garage parking
spaces, 123 uncovered spaces and 5 handicapped parking spaces.
(g) SECURITY. Security service for the Office Complex 24 hours per day,
which shall include, without limitation, at least one (1) uniformed
security guard on patrol and existing lighting of the common areas,
parking facilities and all other portions of the Office Complex.
Lessor shall restrict access to the Office Complex to tenants and
other authorized individuals after normal business hours and on
weekends and holidays. Notwithstanding the foregoing, Lessor agrees
that Lessee shall have access to the Premises twenty-four (24)
hours per day, seven (7) days per week. Lessee shall be entitled to
provide additional security guard service to the Office Complex
and/or the Premises at Lessee's option and expense subject to
Lessor's approval, which approval shall not be unreasonably
withheld, conditioned or delayed.
(h) ACCESS. Access to the Office Complex and Premises at all times.
SECTION 5.2 LESSEE'S UTILITY SERVICES. Lessee shall be solely
responsible for the direct payment of all utilities which are separately
metered or separately charged (electric, natural gas, telephone, cable
television and any other special utility requirements of Lessee), if any, to
the Premises or to the Lessee and shall make such payments to the respective
utility companies prior to delinquency. Such amounts shall not be included as
Operating Expenses.
SECTION 5.3 OTHER PROVISIONS RELATING TO SERVICES. No interruption in,
or temporary stoppage of, any of the aforesaid services caused by repairs,
renewals, improvements, alterations, strikes, lockouts, labor controversy,
accidents, inability to obtain fuel or supplies, or other causes beyond
Lessor's control shall be deemed an eviction or disturbance of Lessee's use
and possession, or render Lessor liable for damages, by abatement of rent or
otherwise or relieve Lessee from any obligation herein set forth; provided,
however, notwithstanding the foregoing, if such interruption or temporary
stoppage substantially interferes with Lessee's use of the Premises, and if
same continues for a period in excess of thirty (30) days following written
notice from Lessee to Lessor, Lessee shall be entitled to correct the same at
Lessor's expense and, if Lessor fails to reimburse Lessee within thirty (30)
days after written notice of the cost (and accompanying invoices), to deduct
the cost thereof from the Rent next becoming due under the Lease; provided,
in no event shall Lessee be entitled to offset more than twenty percent (20%)
of monthly Base Rent in any month. In no event shall Lessor be required to
provide any heat, air conditioning, electricity or other service in excess of
that permitted by voluntary or involuntary guidelines or laws, ordinances or
regulations of governmental authority. Lessor reserves the right, from time
to time, to make reasonable and non-discriminatory modifications to the above
standards for utilities and services.
SECTION 5.4 EFFECTS ON UTILITIES. Lessee shall not, without the prior
written consent of Lessor, which consent shall not be unreasonably withheld,
conditioned or delayed, use any apparatus or device in or about the Premises
which shall cause any substantial noise or vibration or which will increase
the amount of electricity or water, if any, usually furnished or supplied for
use of the Premises as general office space. Lessee shall not connect with
electric current or water pipes, except through existing electrical or water
outlets already in the Premises, any apparatus or device for the purposes of
using electric current or water.
-8-
ARTICLE 6
INSURANCE
SECTION 6.1 LESSOR'S CASUALTY INSURANCE OBLIGATIONS. Lessor shall keep
the Office Complex insured for the benefit of Lessor in an amount equivalent
to the full replacement value thereof (excluding foundation, grading and
excavation costs) against:
(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as are
now or may be customarily covered with respect to buildings and
improvements similar in construction, general location, use,
occupancy and design to the Office Complex, including, but
without limiting the generality of the foregoing, windstorms,
hail, explosion, vandalism, malicious mischief, civil commotion,
and such other coverage as may be deemed necessary by Lessor,
providing such additional coverage is obtainable and providing
such additional coverage is such as is customarily carried with
respect to buildings and improvements similar in construction,
general location, use, occupancy and design to the Office
Complex.
These insurance provisions shall in no way limit or modify any of the
obligations of Lessee under any provision of this Lease Agreement. Lessor
agrees that such policy or policies of insurance shall permit releases of
liability as provided herein and/or waiver of subrogation clause as to Lessee
and Lessor waives, releases and discharges Lessee from all claims or demands
whatsoever which Lessor may have or acquire arising out of damage to or
destruction of the Office Complex or loss of use thereof occasioned by fire
or other casualty, WHETHER SUCH CLAIM OR DEMAND MAY ARISE BECAUSE OF THE
NEGLIGENCE OR FAULT OF LESSEE, ITS AGENTS, EMPLOYEES, CUSTOMERS, CONTRACTORS
OR BUSINESS INVITEES, OR OTHERWISE, and Lessor agrees to look to the
insurance coverage only in the event of such loss. Insurance premiums paid
for insurance coverage required under this Article 6 by Lessor shall be a
portion of the "Operating Expenses" described in Article 2 hereof.
SECTION 6.2 LESSEE'S CASUALTY INSURANCE OBLIGATIONS. Lessee shall keep
all of its machinery, equipment, furniture, fixtures and personal property
(including also property under the care, custody, or control of Lessee) which
may be located in, upon, or about the Premises insured for the benefit of
Lessee in an amount equivalent to the full insurable value thereof against:
(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as are
now, or may in the future be customarily covered with respect to
a tenant's machinery, equipment, furniture, fixtures, personal
property and business located in a building similar in
construction, general location, use, occupancy and design to the
Office Complex, including, but without limiting the generality of
the foregoing, windstorms, hail, explosions, vandalism, theft,
malicious mischief, civil commotion, and such other coverage as
Lessee may deem appropriate or necessary.
Lessee agrees that such policy or policies of insurance shall permit
release of liability as provided herein and/or waiver of subrogation clause
as to Lessor and Lessee waives, releases and discharges Lessor, its agents,
employees, and contractors from all claims or demands whatsoever which Lessee
may have or acquire arising out of damage to or destruction of the machinery,
equipment, furniture, fixtures, personal property, and loss of use thereof
occasioned by fire or other casualty, whether such claim or demand may arise
because of the negligence or fault of Lessor, its agents, employees,
contractors or otherwise, and Lessee agrees to look to the insurance coverage
only in the event of such loss.
SECTION 6.3 LESSOR'S LIABILITY INSURANCE OBLIGATIONS. Lessor shall, as
a portion of the Operating Expenses defined in Article 2, maintain, for its
benefit and the benefit of its managing agent and Lessee, general public
liability insurance against claims for personal injury, death or property
damage occurring upon, in or about the Office Complex, such insurance to
afford protection to Lessor and its managing agent to the limit of not less
than Two Million and No/100 Dollars ($2,000,000.00) in respect to injury or
death to a single person, and to the limit of not less than Five Million and
No/100 Dollars ($5,000,000.00) in respect to any one accident, and to the
limit of not less than Two Million and No/100 Dollars ($2,000,000.00) in
respect to any property damage. Lessor shall provide Lessee with evidence
that it has satisfied its insurance obligations hereunder upon request
therefor.
-9-
SECTION 6.4 LESSEE'S LIABILITY INSURANCE OBLIGATIONS. Lessee shall, at
Lessee's sole cost and expense but for the mutual benefit of Lessor, its
managing agent and Lessee, maintain general public liability insurance
against claims for personal injury, death or property damage occurring upon,
in or about the Premises, such insurance to afford protection to Lessor, its
managing agent and Lessee to the limit of not less than Two Million and
No/100 Dollars ($2,000,000.00) in respect to the injury or death to a single
person, and to the limit of not less than Five Million and No/100 Dollars
($5,000,000.00) in respect to any one accident, and to the limit of not less
than Two Million and No/100 Dollars ($2,000,000.00) in respect to any
property damage. Such policies of insurance shall be written in companies
reasonably satisfactory to Lessor, naming Lessor and its managing agent as
additional insureds thereunder, and such policies, or a memorandum or
certificate of such insurance, shall be delivered to Lessor endorsed "Premium
Paid" by the company or agency issuing the same or accompanied by other
evidence satisfactory to Lessor that the premium thereon has been paid. Any
such coverage shall be deemed primary to any liability coverage secured by
Lessor. Such insurance shall also afford coverage for all claims based upon
acts, omissions, injury or damage, which claims occurred or arose (or the
onset of which occurred or arose) in whole or in part during the policy
period.
SECTION 6.5 INDEMNIFICATION. Lessor agrees to indemnify, protect, defend
and hold Lessee and Lessee's shareholders, employees, lender and agents
harmless from and against any and all uninsured claims, costs, liabilities,
actions and damages, including without limitation, reasonable attorneys' fees
and costs on behalf of any person or persons, firm or firms, corporation or
corporations, arising from any accident, injury or damage to the extent that
same occurred prior to the Commencement Date or was caused by Lessor, its
agents, and employees to any person, firm or corporation occurring during the
term of this Lease or any extension or renewal hereof, in or about the Office
Complex, and from and against all costs, reasonable counsel fees, expenses
and liabilities in or about any such uninsured claim or action or proceeding
brought thereon; and in case any action or proceeding be brought against
Lessee or its agents by reason of any such uninsured claim, Lessor, upon
notice from Lessee, covenants to resist or defend such action or proceeding
by counsel reasonably satisfactory to Lessee.
Lessee agrees to indemnify, protect, defend and hold Lessor and Lessor's
shareholders, employees, lender and managing agent harmless from and against
any and all uninsured claims, costs, liabilities, actions, and damages,
including, without limitation, reasonable attorneys' fees and costs on behalf
of any person or persons, firm or firms, corporation or corporations, arising
from any act or negligence on the part of Lessee or its agents, contractors,
servants, employees or licensees, or arising from any accident, injury or
damage to the extent caused by Lessee, its agents, and employees to any
person, firm or corporation occurring during the term of this Lease or any
renewal thereof, in or about the Premises and Office Complex, and from and
against all costs, reasonable counsel fees, expenses and liabilities incurred
in or about any such claim or action or proceeding brought thereon; and in
case any action or proceeding be brought against Lessor or its managing agent
by reason of any such claim, Lessee, upon notice from Lessor, covenants to
resist or defend such action or proceeding by counsel reasonably satisfactory
to Lessor.
SECTION 6.6 LESSEE'S WAIVER. Lessee agrees, to the extent not expressly
prohibited by law, that Lessor, its agents, employees and servants shall not
be liable, and Lessee waives all claims for damage to property and business
sustained during the term of this Lease by Lessee occurring in or about the
Office Complex, resulting directly or indirectly from any existing or future
condition, defect, matter or thing in the Premises, the Office Complex, or
any part thereof, or from equipment or appurtenances becoming out of repair
or from accident, or from any occurrence or act or omission of Lessor, its
agents, employees or servants, or any tenant or occupant of the Office
Complex or any other person other than damage resulting from the intentional
misconduct or gross negligence of Lessor, its agents, employees or servants,
or the breach by Lessor of its obligations under this Lease. This paragraph
shall apply especially but not exclusively, to damage caused by aforesaid or
by the flooding of basements or other subsurface areas, or by refrigerators,
sprinkling devices, air conditioning apparatus, water, snow, frost, steam,
excessive heat or cold, falling plaster, broken glass, sewage, gas, odors or
noise, or the bursting or leaking of pipes or plumbing fixtures, and shall
apply equally, whether any such damage results from the act or omission of
other tenants or occupants in the Office Complex or any other persons, and
whether such damage be caused by or result from any of the aforesaid, or
shall be caused by or result from other circumstances of a similar or
dissimilar nature.
SECTION 6.7 LESSOR'S DEDUCTIBLE AND LESSEE'S PROPERTY. Provisions herein
to the contrary notwithstanding, in the event any damage to the Office
Complex results solely from the gross
-10-
negligence or willful misconduct of Lessee, its agents, employees or
invitees, and all or any portion of Lessor's loss is "deductible," Lessee
shall pay to Lessor the amount of such deductible loss (not to exceed $1,000
per event).
SECTION 6.8 LESSEE'S PROPERTY. All property in the Office Complex or on
the Premises belonging to Lessee, its agents, employees, invitees or
otherwise located at the Premises, shall be at the risk of Lessee only, and
Lessor shall not be liable for damage thereto or theft, misappropriation or
loss thereof unless caused solely by the gross negligence or willful
misconduct of Lessor and Lessee agrees to defend and hold Lessor, its agents,
employees and servants harmless and indemnify them against claims and
liability for injuries to such property.
SECTION 6.9 INCREASE IN INSURANCE. Lessee shall not do or permit
anything to be done in or about the Premises nor bring or keep anything
therein which will in any way increase the existing rate of or affect in any
other way any fire or other insurance upon the Office Complex or any of its
contents, or cause a cancellation of any insurance policy covering the Office
Complex or any of its contents. Notwithstanding anything to the contrary
contained herein, Lessee shall, within thirty (30) days following its receipt
of written demand, reimburse Lessor for the full amount of any additional
premium charged for such policy by reason of Lessee's failure to comply with
the provisions of the paragraph, it being understood that such demand for
reimbursement shall not be Lessor's exclusive remedy. Lessee shall, within
thirty (30) days following its receipt of written demand, reimburse Lessor
for any additional premium charged for any such policy by reason of Lessee's
failure to comply with the provisions of this Article.
SECTION 6.10 LESSEE'S FAILURE TO INSURE. In the event Lessee fails to
provide Lessor with evidence of insurance required under this Article 6,
Lessor may, but shall not be obligated to, without further demand upon
Lessee, and without waiving or releasing Lessee from any obligation contained
in this Lease, effect such insurance and Lessee agrees to repay, upon demand,
all such sums incurred by Lessor in effecting such insurance. All such sums
shall become a part of the Additional Rent payable hereunder, but no such
payment by Lessor shall relieve Lessee from any default under this Lease.
ARTICLE 7
CERTAIN RIGHTS RESERVED BY LESSOR
SECTION 7.1 RIGHTS RESERVED BY LESSOR. Lessor reserves the following
rights exercisable without notice and without liability to Lessee and without
effecting an eviction, constructive or actual, or disturbance of Lessee's use
or possession, or giving rise to any claim for setoff or abatement of rent:
(a) CONTROL SIGNAGE. To control, install, affix and maintain any and
all signs on the Property, or on the exterior of the Office Complex
and in the corridors, entrances and other common areas thereof,
except those signs within the Premises not visible from outside the
Premises, subject to applicable law. Notwithstanding anything to
the contrary contained herein, subject to Article 8, the Building
Rules and Regulations (attached hereto as EXHIBIT "A") and
compliance with applicable laws and ordinances, Lessee may, at its
sole expense, install one (1) sign on each office tower of the
Office Complex in a location and or a design that is mutually
acceptable to Lessor and Lessee, such signage to be substantially
similar to the design attached hereto as EXHIBIT "B".
(b) RETAIN KEYS. To retain at all times and to use in appropriate
instances keys to all doors within and into the Premises. No locks
shall be changed without the prior written consent of Lessor. This
provision shall not apply to Lessee's safes, or other areas
maintained by Lessee for the safety and security of monies,
securities, negotiable instruments or similar items, or proprietary
or confidential information.
(c) MAKE REPAIRS. To make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the
Office Complex, or any part thereof, and for such purposes to enter
upon the Premises, and during the continuation of any of said work,
to temporarily close doors, entryways, public spaces, and corridors
in the Office Complex and to interrupt or temporarily suspend
services and facilities.
(d) REGULATE HEAVY EQUIPMENT. To approve the weight, size and location of
safes and other heavy equipment and articles in and about the Premises
and the Office Complex, such
-11-
approval not to be unreasonably withheld, conditioned or delayed,
and to require all such items to be moved into and out of the Office
Complex and the Premises only at such times and in such manner as
Lessor shall reasonably direct in writing.
(e) EXCLUSIVE BUSINESSES. To grant to anyone the exclusive right to
conduct any particular business or undertaking in the Office
Complex other than general office use, including but not limited to
the following businesses: banks, savings and loan associations,
restaurants, cafeterias, candy and/or tobacco shops, and other
stores selling retail products.
SECTION 7.2 EMERGENCY ENTRY. Lessor and its agents may enter the
Premises at any time in case of emergency and shall have the right to use any
and all means which Lessor may deem proper to open such doors during an
emergency in order to obtain entry to the Premises. Any entry to the Premises
obtained by Lessor in the event of an emergency shall not, under any
circumstances, be construed or deemed to be a forcible or unlawful entry
into, or detainer of, the Premises, or to be an eviction of Lessee from the
Premises or any portion thereof.
SECTION 7.3 EXHIBITION OF PREMISES. Lessee shall permit Lessor and its
agents, upon at least twenty-four (24) hours prior notice, to enter and pass
through the Premises or any part thereof at reasonable times during normal
business hours to: (a) post notices of non-responsibility; (b) exhibit the
Premises to holders of encumbrances on the interest of Lessor under the Lease
and to prospective purchasers, mortgagees or lessees of the Office Complex;
and (c) during the period of six (6) months prior to the expiration of the
Lease Term, exhibit the Premises to prospective lessees thereof, provided, in
each case, that Lessor shall not unreasonably interfere with Tenant's use and
occupancy of the Premises. If during the last month of the Lease Term, Lessee
shall have removed substantially all of Lessee's property and personnel from
the Premises, Lessor may, with the prior written consent of Lessee, which
consent may not be unreasonably withheld or delayed, enter the Premises and
repair, alter, and redecorate the same, without abatement of Rent and without
liability to Lessee; and such acts shall have no effect on this Lease.
SECTION 7.4 RIGHT OF LESSOR TO PERFORM. All covenants and agreements to
be performed by Lessee under any of the terms of this Lease shall be
performed by Lessee at Lessee's sole cost and expense and without any
abatement of Rent, except as otherwise provided herein. If Lessee shall fail
to pay any sum of money (other than Rent due Lessor) required to be paid by
it hereunder or shall fail to perform any other act on its part to be
performed hereunder, including, but not limited to, the failure to commence
and complete repairs promptly and adequately, and the failure to remove any
liens or otherwise to perform any act or fulfill any obligation required of
Lessee under this Lease within any applicable notice and cure periods
provided herein, Lessor may, but shall not be obligated to do so, and without
waiving or releasing Lessee from any obligations of Lessee, make any such
payment or perform any such act on Lessee's part to be made or performed as
in this Lease provided. All sums so paid by Lessor and all necessary
incidental costs, together with an administrative charge in the amount of
five percent (5%) of any costs incurred by Lessor, and interest thereon at
the maximum rate per annum then permitted by law accruing from the date which
is ten (10) days following Lessee's receipt of written notice that same has
been paid or incurred by Lessor until reimbursed to Lessor by Lessee, shall
be payable to Lessor by Lessee as Rent within thirty (30) days following
Lessee's receipt of written demand and Lessee covenants to pay all such sums.
Lessor shall have (in addition to any other right or remedy of Lessor) the
same rights and remedies in the event of Lessee's non-payment of such sums,
as in the case of default by Lessee in the payment of Rent to Lessor.
ARTICLE 8
ALTERATIONS AND IMPROVEMENTS
SECTION 8.1 PROCEDURES FOR LESSEE'S IMPROVEMENTS. Except as provided in
SECTION 16.27 hereof, Lessee shall not make any improvements, alterations,
additions or installations in or to the Premises (hereinafter referred to as
the "Work") without Lessor's prior written consent, which consent shall not
be unreasonably withheld, conditioned or delayed; provided, Lessor may
withhold its consent, in its sole discretion, to any structural alterations,
exterior alterations or other alterations that are visible within the common
areas of the Office Complex ("Major Alterations"). Before commencement of the
Work or delivery of any materials to be used in the Work to the Premises or
into the Office Complex, Lessee shall furnish Lessor with plans and
specifications, names and addresses of contractors, copies of contracts,
necessary permits and licenses, and an indemnification in such form and
amount as may be reasonably satisfactory to Lessor and a performance bond
executed by a commercial surety reasonably satisfactory to Lessor, and in an
amount equal to the Work and the payment of all liens for labor and material
arising therefrom. Lessee agrees to defend and hold Lessor
-12-
forever harmless from any and all claims and liabilities of any kind and
description which may arise out of or be connected in any way with said
improvements, alterations, additions or installations. All Work shall be done
only by contractors or mechanics reasonably approved by Lessor and at such
time and in such manner as Lessor may from time to time reasonably designate.
All work done by Lessee, its agents, employees, or contractors shall be done
in such a manner as to avoid labor disputes. Lessee shall pay the cost of all
such improvements, alterations, additions or installations (including a
reasonable charge for Lessor's services and for Lessor's inspection and
engineering time), and also the cost of painting, restoring, or repairing the
Premises and the Office Complex occasioned by such improvements, alterations,
additions or installations. Upon completion of the Work, Lessee shall furnish
Lessor with contractor's affidavits or unconditional lien releases and full
and final waivers of liens, and receipted bills covering all labor and
materials expended and used. The Work shall comply with all insurance
requirements and all laws, ordinances, rules and regulations of all
governmental authorities and shall be constructed in a good and workmanlike
manner. Lessee shall permit Lessor to inspect construction operations in
connection with the Work. Lessee shall not be allowed to make any
alterations, modifications, improvements, additions, or installations if such
action results or would result in a labor dispute or otherwise would
materially interfere with Lessor's operation of the Office Complex. Lessor,
by written notice to Lessee given at or prior to termination of this Lease,
may require Lessee to remove any improvements, additions or installation
installed by Lessee in the Premises at Lessee's sole cost and expense, and
repair or restore any damage caused by the installation and removal of such
improvements, additions, or installations; provided, however, the only
improvements, additions or installations which Lessee shall remove shall be
those specified in such notice. With respect to approval rights granted to
Lessor in this Article 8 for other than Major Alterations, Lessor's approval
shall be deemed given following the expiration of thirty (30) days after
Lessee delivers to Lessor in writing plans and specifications for the item or
items for which Lessor's approval is sought if Lessor has not sooner
disapproved same.
SECTION 8.2 FREEDOM FROM LIENS. Lessee shall keep the Premises and the
Office Complex free from any liens arising out of any work performed,
material furnished or obligations incurred by Lessee, and shall indemnify,
protect, defend and hold Lessor harmless from any liens and encumbrances
arising out of any work performed or material furnished by or at the
direction of Lessee. In the event that Lessee shall not, within thirty (30)
days following the imposition of any such lien, cause such lien to be
released of record by payment or posting of a proper bond, Lessor shall have,
in addition to all other remedies provided herein and by law, the right, but
not the obligation, to cause the same to be released by such means as it
shall deem proper, including payment of and/or defense against the claim
giving rise to such lien. All such sums paid by Lessor and all expenses
incurred by it in connection therewith, including attorneys' fees and costs,
shall be payable as Additional Rent to Lessor by Lessee on demand with
interest at the maximum rate per annum then permitted by law accruing from
the date which is five (5) days following Lessee's receipt of written notice
that same has been paid or incurred by Lessor until reimbursed to Lessor by
Lessee.
SECTION 8.3 ALTERATIONS A PART OF THE PREMISES. Any permanent additions
to, or alterations of, the Premises, except as specified in Lessor's notice
to Lessee, shall become at once a part of the Premises and belong to Lessor
without compensation to Lessee. The foregoing shall not be applicable to
removable equipment, trade fixtures, shelving, attached modular furniture or
Lessee's personal property, which Lessee shall remove, and upon removal shall
repair any damage to the Premises due to such removal.
ARTICLE 9
REPAIRS
SECTION 9.1 LESSEE'S REPAIR OBLIGATIONS. Subject to Article 6 hereof,
Lessee shall, during the term of this Lease, at Lessee's expense, keep the
Premises in as good order, condition and repair as they were at the time
Lessee took possession of the same, reasonable wear and tear and damage from
fire and other casualties and/or which is the responsibility of Lessor
excepted. Lessee shall keep the Premises in a neat and sanitary condition and
shall not commit any nuisance or waste on the Premises or in, on, or about
the Office Complex, throw improper substances in the plumbing facilities, or
waste any of the utilities furnished by the Lessor. All uninsured damage or
injury to the Premises, or to the Office Complex caused by Lessee moving
furniture, fixtures, equipment, or other devices in or out of the Premises or
Office Complex or by installation or removal of furniture, fixtures,
equipment, devices or other property of Lessee, its agents, contractors,
servants or employees, due to carelessness, omission, neglect, improper
conduct, or other cause of Lessee, its servants, employees, agents, visitors,
or licensees, shall be repaired, restored and replaced promptly by Lessee at
its sole
-13-
cost and expense. All repairs, restorations and replacements shall be in
quality and class equal to the original work and shall comply with all
requirements of the Lease.
SECTION 9.2 LESSOR'S INSPECTION. Lessor or its employees, or agents,
shall have the right to enter the Premises following at least twelve (12)
hours prior notice thereof to Lessee (except that no prior notice to Lessee
shall be required in the event of an emergency or for the performance of
cleaning, janitorial and any other service required to be performed by Lessor
under this Lease) at any reasonable time or times for the purpose of
inspection, cleaning, repairs, altering, or improving the same but nothing
contained herein shall be construed as imposing any obligation on Lessor to
make any repairs, alterations or improvements which are the obligation of
Lessee; provided, however, that Lessor shall not unreasonably interfere with
Lessee's use and occupancy of the Premises.
SECTION 9.3 JOINT INSPECTION UPON VACATION. Lessee shall give written
notice to Lessor at least thirty (30) days prior to vacating the Premises for
the express purpose of arranging a meeting with Lessor for a joint inspection
of the Premises. In the event of Lessee's failure to give such notice and
arrange such joint inspection, Lessor's inspection at or after Lessee's
vacation of the Premises shall be conclusively deemed correct for purposes of
determining Lessee's responsibility for repairs and restoration hereunder.
SECTION 9.4 LESSOR'S REPAIR OBLIGATIONS. Lessor shall, during the term
of this Lease, at Lessor's expense, keep the common areas, landscaping,
parking facilities and the roof, foundation, slab, floors, exterior walls and
load bearing columns and all other structural, mechanical, electrical and
plumbing portions of the Office Complex in first class condition and repair
and in a neat, clean and healthful manner. All repairs, restorations and
replacements shall be performed in good and workmanlike manner and in quality
and class equal to the original work and shall comply with all requirements
of the Lease. If Lessor fails to perform any of Lessor's obligations under
this paragraph, and if such failure continues for thirty (30) days after
written notice thereof is delivered to Lessor (provided, that, in the event
of an emergency or situation where damage to person or property is at risk,
no notice shall be required), Lessee may perform such obligation, in which
event, Lessor shall pay to Lessee the reasonable cost incurred by Lessee in
performing such obligation within thirty (30) days after demand therefor
(with accompanying paid invoices), failing which Lessee shall be entitled to
offset such sums against the Rent becoming due under this Lease, provided any
offset shall not exceed twenty percent (20%) of monthly Base Rent until such
offset has been fully made. In the event the expenditure cannot be fully
recouped from the next monthly payment of Base Rent as a result of such
limitation, Lessee shall be entitled to recover interest with respect to each
subsequent monthly offset from the date of the expenditure to the date of
offset at a per annum rate equal to the bank prime rate publicized in the
WALL STREET JOURNAL, as the same may change from time to time.
ARTICLE 10
ASSIGNMENT AND SUBLETTING
SECTION 10.1 PROCEDURE FOR OBTAINING LESSOR'S CONSENT. Lessee shall not,
without the prior written consent of Lessor, (a) transfer, pledge, mortgage
or assign this Lease or any interest hereunder; (b) permit any assignment of
this Lease by voluntary act, operation of law or otherwise; (c) sublet the
Premises or any part thereof; or (d) permit the use of the Premises by any
parties other than Lessee, its agents and employees. Lessee shall seek such
written consent of Lessor by a written request therefor, setting forth such
information as Lessor may deem reasonably necessary. Lessee shall, by notice
in writing, advise Lessor of its intention from, on and after a stated date
(which shall not be less than thirty [30] days after date of Lessee's
notice), to assign this Lease or to sublet any part or all of the Premises
for the balance or any part of the term. Lessee's notice shall include all of
the terms of the proposed assignment or sublease and shall state the
consideration therefor. In such event, Lessor shall have the right to be
exercised by giving written notice to Lessee within thirty (30) days after
receipt of Lessee's notice, to recapture the space described in Lessee's
notice and such recapture notice shall, if given, cancel and terminate this
Lease with respect to the space therein described as of the date stated in
Lessee's notice; provided, however, that Lessor shall not have such right to
recapture if the proposed assignment is a transfer of the stock of Lessee as
described in Section 10.5 hereof. Lessee's notice shall state the name and
address of the proposed assignee or subtenant and a true and complete copy of
the proposed assignment or sublease shall be delivered to Lessor with
Lessee's notice. If Lessee's notice shall cover all of the Premises, and
Lessor shall have exercised its foregoing recapture right, the term of this
Lease shall expire and end on the date stated in Lessee's notice as fully and
completely as if that date had been herein definitely fixed for the
expiration of the term. If, however this Lease be canceled with respect to
less than the entire Premises, the Base Rent and Additional Rent shall be
equitably adjusted by Lessor with due
-14-
consideration of the size, location, type and quality of the portion of the
Premises so remaining after the "recapture" and such rent shall be reduced
accordingly from and after the termination date for said portion, and this
Lease as so amended shall continue thereafter in full force and effect. The
rent adjustments provided for herein shall be evidenced by an amendment to
Lease executed by Lessor and Lessee. If this Lease shall be terminated in the
manner aforesaid, either as to the entire Premises or only a portion thereof,
to such extent the term of this Lease shall end upon the appropriate
effective date of the proposed sublease or assignment as if that date had
been originally fixed in this Lease for such expiration, and in the event of
a termination affecting less than the entire Premises, Lessee shall comply
with Article 13 ("Surrender of Premises") of this Lease with respect to such
portion of the Premises affected thereby.
SECTION 10.2 DISCHARGE OF COMMISSION. Lessee shall, at its sole cost and
expense, discharge in full (a) any outstanding commission obligation on the
part of Lessor with respect to this Lease in the event that all or any
portion of this Lease is recaptured pursuant to this ARTICLE 10, and (b) any
commission which may be due and owing as a result of any proposed assignment
or subletting, whether or not the subject portion of the Premises is
"recaptured" pursuant thereto and rented by Lessor to the proposed tenant or
any other tenant.
SECTION 10.3 RIGHT TO RECAPTURE NOT EXERCISED. If Lessor, upon receiving
Lessee's notice with respect to any such space, shall not exercise its right
to recapture as aforesaid, Lessor will not unreasonably withhold its consent
to Lessee's assignment of the Lease or subletting such space to the party
identified in Lessee's notice, provided, however, that in the event Lessor
consents to any such assignment or subletting, and as a condition thereto,
Lessee shall pay to Lessor ninety percent (90%) of all profit derived by
Lessee from such assignment or subletting. For purposes of the foregoing,
profit shall be deemed to include, but shall not be limited to, the amount of
all rent payable by such assignee or sublessee in excess of the Base Rent,
and rent adjustments, payable by Lessee under this Lease. If a part of the
consideration for such assignment or subletting shall be payable other than
in cash, the payment to Lessor shall be in cash for its share of any non-cash
consideration based upon the fair market value thereof.
SECTION 10.4 LESSEE'S PROFIT STATEMENT. Lessee shall and hereby agrees
that it will furnish to Lessor upon request from Lessor a complete statement,
certified by an independent certified public accountant, setting forth in
detail the computation of all profit derived and to be derived from such
assignment or subletting, such computation to be made in accordance with
generally accepted accounting principles. Lessee agrees that Lessor or its
authorized representatives shall be given access at all reasonable times to
the books, records and papers of Lessee relating to any such assignment or
subletting, and Lessor shall have the right to make copies thereof. The
percentage of Lessee's profit due Lessor hereunder shall be paid to Lessor
within five (5) days of receipt by Lessee of all payments made from time to
time by such assignee or sublessee to Lessee.
SECTION 10.5 LESSEE'S CHANGES DEEMED AN ASSIGNMENT. For purposes of the
foregoing, any change in the partners of Lessee, if Lessee is a partnership
which results in a transfer of at least fifty percent (50%) or more of the
interests in the partnership, or, if Lessee is a corporation, any transfer of
at least fifty percent (50%) of the shares of stock of Lessee by sale,
assignment, operation of law or otherwise, shall be deemed to be an
assignment within the meaning of this Article 10; provided, however, that the
sale of stock in a public offering for an aggregate price of at least Twenty
Million Dollars ($20,000,000.00) shall not be deemed to be an assignment
within the meaning of this ARTICLE 10.
SECTION 10.6 CONTINUING LESSEE LIABILITY. Any subletting or assignment
hereunder shall not release or discharge Lessee of or from any liability,
whether past, present or future, under this Lease, and Lessee shall continue
fully liable thereunder. The subtenant or subtenants or assignee shall agree
in a form satisfactory to Lessor to comply with and be bound by all of the
terms, covenants, conditions, provisions and agreements of this Lease to the
extent of the space sublet or assigned, and Lessee shall deliver to Lessor
promptly after execution an executed copy of each such sublease or assignment
and an agreement of compliance by each such subtenant or assignee. Consent by
Lessor to any assignment of this Lease or to any subletting of the Premises
shall not be a waiver of Lessor's rights under this Article 10 as to any
subsequent assignment or subletting.
SECTION 10.7 VOID TRANSFERS. Any sale, assignment, mortgage, transfer,
or subletting of this Lease which is not in compliance with the provisions of
this Article 10 shall be of no effect and void. Lessor's right to assign its
interest in this Lease shall remain unqualified. Lessor may make a reasonable
charge to Lessee for any reasonable attorneys' fees or expenses incident to a
review of
-15-
any documentation related to any proposed assignment or subletting by Lessee.
Notwithstanding anything contained herein to the contrary, Lessee shall be
entitled, without otherwise complying with the provisions of this Article 10,
to assign this Lease or sublet the Premises to any parent, affiliate or
subsidiary of Lessee, without first obtaining Lessor's consent; provided,
Lessee shall remain fully liable for the obligations of this Lease, and the
assignee or sublessee shall assume all obligations of Lessee hereunder.
SECTION 10.8 PROHIBITED TRANSFEREES. Notwithstanding anything to the
contrary in this Lease, Lessee shall not assign its rights under this Lease
or sublet all or any part of the Premises to a person, firm or corporation
which is (or, immediately prior to such subletting or assignment, was) a
tenant or occupant of the Office Complex or the building located at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, or any office building on property
contiguous to the Office Complex owned by Lessor under the Lease.
SECTION 10.9 CRITERIA FOR WITHHOLDING CONSENT. The consent of Lessor to
a transfer may not be unreasonably withheld, conditioned or delayed, provided
that should Lessor withhold its consent for any of the following reasons,
which list is not exclusive, such withholding shall be deemed to be
reasonable:
(a) Financial strength of the proposed transferee is not at least equal to
that of Lessee at the time of execution of this Lease or of lessees
occupying comparable premises in the Office Complex or in other
buildings owned or operated by Lessor located in the same metropolitan
area as the Office Complex;
(b) A proposed transferee whose occupation of the Premises would cause a
diminution in the reputation of the Office Complex or the other
businesses located therein;
(c) A proposed transferee whose occupancy will require any material
variation in the terms and conditions of this Lease.
Lessee agrees that its personal business skills and philosophy were an
important inducement to Lessor for entering into this Lease and that Lessor
may reasonably object to the transfer of the Premises to another whose
proposed use, while permitted by this Lease, would involve a different,
quality, manner or type of business skills than that of Lessee.
ARTICLE 11
DAMAGE BY FIRE OR OTHER CASUALTY
SECTION 11.1 TENANTABLE WITHIN 240 DAYS. If fire or other casualty shall
render the whole or any material portion of the Premises untenantable, and
the Premises can reasonably be expected to be made tenantable within two
hundred forty (240) days from the date of such event, then Lessor shall
repair and restore the Premises and the Office Complex to as near their
condition prior to the fire or other casualty as is reasonably possible
within such two hundred forty (240) day period (subject to delays for causes
beyond Lessor's reasonable control) and notify Lessee that it will be doing
so, such notice to be mailed within thirty (30) days from the date of such
damage or destruction, and this Lease shall remain in full force and effect,
but the Rent for the period during which the Premises are untenantable shall
be abated pro rata (based upon the portion of the Premises which is
untenantable). If Lessor is required to repair the Office Complex and/or the
Premises as aforesaid, said work shall be undertaken and prosecuted with all
due diligence and speed, and shall be completed within two hundred forty
(240) days following the date of such fire or other casualty (subject to
force majeure) failing which, Lessee shall be entitled to terminate this
Lease in the event that such repairs are not completed within sixty (60) days
after written notice from Lessee that Lessee desires to terminate this Lease
because such repairs have not been completed within such two hundred forty
(240) day period.
SECTION 11.2 NOT TENANTABLE WITHIN 240 DAYS. If fire or other casualty
shall render the whole or any material part of the Premises untenantable and
the Premises cannot reasonably be expected to be made tenantable within two
hundred forty (240) days from the date of such event, then either party, by
notice in writing to the other mailed within thirty (30) days from the date
of such damage or destruction, may terminate this Lease effective upon a date
within thirty (30) days from the date of such notice.
SECTION 11.3 OFFICE COMPLEX SUBSTANTIALLY DAMAGED. In the event that
more than fifty percent (50%) of the value of the Office Complex is damaged
or destroyed by fire or other casualty, and irrespective of whether damage or
destruction can be made tenantable within two hundred forty
-16-
(240) days thereafter, then at Lessor's or Lessee's option, by written notice
to the other, mailed within forty-five (45) days from the date of such damage
or destruction, either party may terminate this Lease effective upon the date
ninety (90) days after such notice.
SECTION 11.4 DEDUCTIBLE PAYMENTS. If the Premises or the Office Complex
is damaged, and such damage is of the type insured against under the fire and
special form property damage insurance maintained by Lessor hereunder, the
cost of repairing said damage up to the amount of the deductible under said
insurance policy shall be included as a part of the Operating Expenses.
SECTION 11.5 LESSOR'S REPAIR OBLIGATIONS. If fire or other casualty
shall render the whole or any material part of the Premises untenantable and
the Premises cannot reasonably be expected to be made tenantable within two
hundred forty (240) days from the date of such event and neither party hereto
terminates this Lease pursuant to its rights herein or in the event that more
than fifty percent (50%) of the value of the Office Complex is damaged or
destroyed by fire or other casualty, and neither party terminates this Lease
pursuant to its option granted herein, or in the event that fifty percent
(50%) or less of the value of the Office Complex is damaged or destroyed by
fire or other casualty and neither the whole nor any material portion of the
Premises is rendered untenantable, then Lessor shall repair and restore the
Premises and the Office Complex to as near their condition prior to the fire
or other casualty as is reasonably possible with all due diligence and speed
(subject to delays for causes beyond Lessor's reasonable control) and shall
be completed within two hundred forty (240) days following the date of such
fire or other casualty (subject to force majeure) failing which, Lessee shall
be entitled to terminate this Lease in the event that such repairs are not
completed within sixty (60) days after written notice from Lessee that Lessee
desires to terminate this Lease because such repairs have not been completed
within such 240 day period. Rent for the period during which the Premises are
untenantable shall be abated pro rata (based upon the portion of the Premises
which is untenantable). In no event shall Lessor be obligated to repair or
restore any special equipment or improvements installed by Lessee at Lessee's
expense.
SECTION 11.6 RENT APPORTIONMENT. In the event of a termination of this
Lease pursuant to this Article 11, Rent shall be apportioned on a per diem
basis and paid to the date of the fire or other casualty.
ARTICLE 12
EMINENT DOMAIN
SECTION 12.1 LESSEE'S TERMINATION. If the whole of or any substantial
part of the Premises is taken by any public authority under the power of
eminent domain, or taken in any manner for any public or quasi-public use, so
as to render (in Lessee's reasonable judgment) the remaining portion of the
Premises unsuitable for the purposes intended hereunder, then the term of
this Lease shall cease as of the day possession shall be taken by such public
authority and Lessor shall make a pro rata refund of any prepaid rent. All
damages awarded for such taking under the power of eminent domain or any like
proceedings shall belong to and be the property of Lessor, Lessee hereby
assigning to Lessor its interest, if any, in said award; provided, however,
Lessor shall have no interest in any award made to Lessee for loss of
business or goodwill. In the event that fifty percent (50%) or more of the
building area or fifty percent (50%) or more of the value of the Office
Complex is taken by public authority under the power of eminent domain, then
either party may terminate this Lease by delivering, within sixty (60) days
after possession is taken, written notice thereof to the other party, which
termination shall be effective as of the date ninety (90) days after such
termination notice is given.
SECTION 12.2 LESSEE'S PARTICIPATION. Provisions in this Article 12 to
the contrary notwithstanding, Lessee shall have the right to prove in any
condemnation proceedings and to receive any separate award which may be made
for damages to or condemnation of Lessee's movable trade fixtures and
equipment and for moving expenses; provided, however, Lessee shall in no
event have any right to receive any award for its interest in this Lease or
for loss of leasehold. Provisions in this Article 12 to the contrary
notwithstanding, in the event of a partial condemnation of the Office Complex
or the Premises and this Lease is not terminated, Lessor shall, at its sole
cost and expense, restore the Premises and Office Complex to a complete
architectural unit and the Base Rent provided for herein during the period
from and after the date of delivery of possession pursuant to such
proceedings to the termination of this Lease shall be reduced to a sum equal
to the product of the Base Rent provided for herein multiplied by a fraction,
the numerator of which is the fair market rent of the Premises after such
taking and after same has been restored to a complete architectural unit, and
the denominator of which is the fair market rent of the Premises prior to
such taking.
-17-
ARTICLE 13
SURRENDER OF PREMISES
SECTION 13.1 SURRENDER OF POSSESSION. On the last day of the term of
this Lease, or on the sooner termination thereof, Lessee shall peaceably
surrender the Premises in good condition and repair consistent with Lessee's
duty to make repairs as herein provided. On or before the last day of the
term of this Lease, or the date of sooner termination thereof, Lessee shall,
at its sole cost and expense, remove all of its property and trade fixtures
and equipment from the Premises, and all property not removed shall be deemed
abandoned. Lessee hereby appoints Lessor its agent to remove all abandoned
property of Lessee from the Premises upon termination of this Lease and to
cause its transportation and storage for Lessee's benefit, all at the sole
cost and risk of Lessee and Lessor shall not be liable for damage, theft,
misappropriation or loss thereof and Lessor shall not be liable in any manner
in respect thereto. Lessee shall pay all reasonable costs and expenses of
such removal, transportation and storage. Lessee shall leave the Premises in
good order, condition and repair, reasonable wear and tear and damage from
fire and other casualty or which is the responsibility of Lessor excepted.
Lessee shall reimburse Lessor within thirty (30) days following its receipt
of written demand for any expenses incurred by Lessor with respect to
removal, transportation, or storage of abandoned property and with respect to
restoring said Premises to the condition required by this Lease. All
alterations, additions and fixtures, other than Lessee's furniture, personal
property, trade fixtures and equipment which have been made or installed by
either Lessor or Lessee upon the Premises, shall remain the property of
Lessor and shall be surrendered with the Premises as a part thereof. If the
Premises are not surrendered at the end of the term or sooner termination
thereof, Lessee shall indemnify Lessor against loss or liability resulting
from delay by Lessee in so surrendering the Premises, including, without
limitation, claims made by any succeeding tenants founded on such delay and
any attorneys' fees resulting therefrom. Lessee shall promptly surrender all
keys for the Premises to Lessor at the place then fixed for the payment of
rent and shall inform Lessor of combinations on any vaults, locks and safes
left on the Premises.
SECTION 13.2 LESSEE RETAINING POSSESSION. In the event Lessee remains in
possession of the Premises after expiration of this Lease, and without the
execution of a new lease, but with Lessor's written consent, it shall be
deemed to be occupying the Premises as a tenant from month to month, subject
to all the provisions, conditions and obligations of this Lease insofar as
the same can be applicable to a month-to-month tenancy, except that the Base
Rent shall be escalated to Lessor's then current base rent for the Premises
according to Lessor's then current rental rate schedule for prospective
tenants, but not in excess of 150% of the Base Rent otherwise payable under
the Lease. In the event Lessee remains in possession of the Premises after
expiration of this Lease and without the execution of a new lease and without
Lessor's written consent, Lessee shall be deemed to be occupying the Premises
without claim of right and Lessee shall pay Lessor for all costs arising out
of loss or liability resulting from delay by Lessee in so surrendering the
Premises as above provided and shall pay a charge for each day of occupancy
an amount equal to one hundred fifty percent (150%) of the Base Rent and
Additional Rent (on a daily basis) payable under this Lease upon expiration.
ARTICLE 14
DEFAULT OF LESSEE
SECTION 14.1 EVENTS OF DEFAULT. The occurrence of any one or more of the
following events (in this Article sometimes called "Event of Default") shall
constitute a default and breach of this Lease by Lessee:
(a) If Lessee fails to pay any Base Rent or Additional Rent payable
under this Lease or fails to pay any obligation required to be paid
by Lessee when and as the same shall become due and payable, and
such default continues for a period of ten (10) days after written
notice thereof given by Lessor to Lessee.
(b) If Lessee fails to perform any of Lessee's nonmonetary obligations
under this Lease for a period of thirty (30) days after written
notice from Lessor; provided that if more time is required to
complete such performance, Lessee shall not be in default if Lessee
commences such performance within the thirty (30)-day period and
thereafter diligently pursues its completion. The notice required
by this subsection is intended to satisfy any and all notice
requirements imposed by law on Lessor and is not in addition to any
such requirement.
-18-
(c) If Lessee, by operation of law or otherwise, violates the
provisions of Article 10 hereof relating to assignment, sublease,
mortgage or other transfer of Lessee's interest in this Lease or in
the Premises or in the income arising therefrom.
(d) If Lessor discovers that any financial statement, warranty,
representation or other information given to Lessor by Lessee, any
assignee of Lessee, any subtenant of Lessee, any successor in
interest of Lessee or any guarantor of Lessee's obligation
hereunder, and any of them, in connection with this Lease, was
materially false or misleading when made or furnished.
(e) Lessee, by operation of law or otherwise, violates the provisions of
Section 4.4 relating to compliance with environmental laws.
(f) If there is a default by the lessee under that certain Office Lease
dated of even date herewith, between Lessor and Lessee, covering
Tower I of the Office Complex.
(g) If (i) Lessee makes a general assignment or general arrangement for
the benefit of creditors; (ii) a petition for adjudication of
bankruptcy or for reorganization or rearrangement is filed by or
against Lessee and is not dismissed within sixty (60) days; (iii)
if a trustee or receiver is appointed to take possession of
substantially all of Lessee's assets located at the Premises or of
Lessee's interest in the Lease and possession is not restored to
Lessee within sixty (60) days; or (iv) if substantially all of
Lessee's assets located at the Premises or of Lessee's interest in
this Lease is subjected to attachment, execution or other judicial
seizure which is not discharged within sixty (60) days. If a court
of competent jurisdiction determines that any of the acts described
in this subsection does not constitute an Event of Default and a
trustee is appointed to take possession (or if Lessee remains a
debtor in possession) and such trustee or Lessee transfers Lessee's
interest hereunder, then Lessor shall receive, as Additional Rent,
the difference between the Rent (or any other consideration) paid
in connection with such assignment or sublease and the Rent payable
by Lessee hereunder. As used in this subsection, the term "Lessee"
shall also mean any guarantor of Lessee's obligations under this
Lease. If any such Event of Default shall occur, Lessor, at any
time during the continuance of any such Event of Default, may give
written notice to Lessee stating that this Lease shall expire and
terminate on the date specified in such notice, and upon the date
specified in such notice this Lease, and all rights of Lessee under
this Lease, including all rights of renewal whether exercised or
not, shall expire and terminate, or in the alternative or in
addition to the foregoing remedy, Lessor may assert and have the
benefit of any other remedy allowed herein, at law, or in equity.
SECTION 14.2 LESSOR'S REMEDIES. Upon the occurrence and during the
continuance of an Event of Default by Lessee, with or without notice or
demand and without limiting Lessor in the exercise of any right or remedy
which Lessor may have, Lessor shall be entitled to the rights and remedies
set forth below.
(a) TERMINATION OF POSSESSION. Terminate Lessee's right to possession
of the Premises by any lawful means, in which case the Lease shall
terminate and Lessee shall immediately surrender possession of the
Premises to Lessor. In such event, Lessor shall have the immediate
right to reenter and remove all persons and property, and such
property may be removed and stored in a public warehouse or
elsewhere at the cost of, and for the account of Lessee, all
without service of notice or resort to legal process and without
being deemed guilty of trespass, or becoming liable for any loss or
damage which may be occasioned thereby. Lessor shall have the right
to change the locks on any door of the Premises without notifying
Lessee of the name, address or telephone number of an individual or
company from whom a new key may be obtained, nor shall Lessor have
any obligation to provide a new key to Lessee until such time as
all Events of Default have been cured and Lessee has provided to
Lessor additional security for or further assurances of Lessee's
future performance of all Lessee's obligations arising under this
Lease, such security and assurances to be satisfactory to Lessor in
the exercise of Lessor's sole and absolute discretion. In the event
that Lessor shall elect to so terminate this Lease, then Lessor
shall be entitled to recover from Lessee all damages incurred by
Lessor by reason of Lessee's default, including:
-19-
(i) The equivalent of the amount of the Base Rent and Additional
Rent which would be payable under this Lease by Lessee if this
Lease were still in effect, less
(ii) The net proceeds of any reletting affected pursuant to the
provisions of Section 14.2 hereof after deducting all of
Lessor's reasonable expenses in connection with such
reletting, including, without limitation, all repossession
costs, brokerage commissions, legal expenses, reasonable
attorneys' fees, alteration costs, and expenses of preparation
of the Premises, or any portion thereof, for such reletting.
Lessee shall pay such current damages in the amount determined in
accordance with the terms of this Section 14.2 as set forth in a
written statement thereof from Lessor to Lessee (hereinafter called
the "Deficiency"), to Landlord in monthly installments on the days
on which the Rent would have been payable under this Lease if this
Lease were still in effect, and Landlord shall be entitled to
recover from Tenant each monthly installment of the Deficiency as
the same shall arise.
(b) DAMAGES. In lieu of recovering the monthly Deficiency as set forth
in Section 14.2, Lessor shall be entitled to recover from Lessee,
and Lessee shall pay to Lessor, within thirty (30) days after its
receipt of written demand, as and for final damages for Lessee's
default, an amount equal to the difference between the then present
worth of the aggregate of the Base Rent and Additional Rent and any
other charges to be paid by Lessee hereunder for the unexpired
portion of the term of this Lease (assuming this Lease had not been
so terminated), and the then present worth of the then aggregate
fair and reasonable fair market rent of the Premises for the same
period. In the computation of present worth, a discount at the rate
of 6% per annum shall be employed. If the Premises, or any portion
thereof, shall be relet by Lessor for the unexpired term of this
Lease, or any part thereof, before presentation of proof of such
damages to any court, commission or tribunal, the amount of Rent
reserved upon such reletting shall, prima facie, be the fair and
reasonable fair market rent for the part or the whole of the
Premises so relet during the term of the reletting. Nothing herein
contained or contained in Section 14.2 shall limit or prejudice the
right of Lessor to prove for and obtain, as damages by reason of
such expiration or termination, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to or less
than the amount of the difference referred to above.
(c) REENTRY AND REMOVAL. Upon the occurrence and during the continuance
of an Event of Default by Lessee, Lessor shall also have the right,
with or without terminating this Lease, to reenter the Premises to
remove all persons and property from the Premises. Such property
may be removed and stored in a public warehouse or elsewhere at the
cost of and for the account of Lessee. If Lessor shall elect to
reenter the Premises, Lessor shall not be liable for damages by
reason of such reentry.
(d) NO TERMINATION; RECOVERY OF RENT. If Lessor does not elect to
terminate this Lease as provided in this Section 14.2, then Lessor
may, from time to time, recover all Rent as it becomes due under
this Lease. At any time thereafter before the default is cured,
Lessor may elect to terminate this Lease and to recover damages to
which Lessor is entitled.
(e) RELETTING THE PREMISES. In the event that Lessor should elect to
terminate this Lease and to relet the Premises, it may execute any
new lease in its own name. Lessee hereunder shall have no right or
authority whatsoever to collect any Rent from such Lessee. The
proceeds of any such reletting shall be applied as follows:
(i) First, to the payment of any indebtedness other than Rent due
hereunder from Lessee to Lessor, including but not limited to
storage charges or brokerage commissions owing from Lessee to
Lessor as the result of such reletting;
(ii) Second, to the payment of the costs and expenses of reletting
the Premises, including alterations and repairs which Lessor
deems reasonably necessary and advisable and reasonable
attorneys' fees incurred by Lessor in connection with the
retaking of the said Premises and such reletting;
-20-
(iii) Third, to the payment of Rent and other charges due and
unpaid hereunder; and
(iv) Fourth, to the payment of future Rent and other damages
payable by Lessee under this Lease.
The parties hereto shall, and they hereby do, waive trial by jury in any
action, proceeding, or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of, or in
any way connected with, this Lease, the relationship of Lessor and
Lessee, Lessee's use or occupancy of the Premises and/or Office Complex,
and/or claim or injury or damage.
SECTION 14.3 WRITTEN NOTICE OF TERMINATION REQUIRED. Lessor shall not be
deemed to have terminated this Lease and the Lessee's right to possession of
the leasehold or the liability of Lessee to pay Rent thereafter to accrue or
its liability for damages under any of the provisions hereof, unless Lessor
shall have notified Lessee in writing that it has so elected to terminate
this Lease. Lessee covenants that the service by Lessor of any notice
pursuant to the applicable unlawful detainer statutes of the state in which
the Office Complex is located and the Lessee's surrender of possession
pursuant to such notice shall not (unless Lessor elects to the contrary at
the time of, or at any time subsequent to the service of, such notice, and
such election be evidenced by a written notice to Lessee) be deemed to be a
termination of this Lease or of Lessee's right to possession thereof.
SECTION 14.4 REMEDIES CUMULATIVE; NO WAIVER. All rights, options and
remedies of Lessor contained in this Lease shall be construed and held to be
cumulative, and no one of them shall be exclusive of the other, and Lessor
shall have the right to pursue any one or all of such remedies or any other
remedy or relief which may be provided by law whether or not stated in this
Lease, except as otherwise expressly set forth herein. No waiver by Lessor
of a breach of any of the terms, covenants or conditions of this Lease by
Lessee shall be construed or held to be a waiver of any succeeding or
preceding breach of the same or any other term, covenant or condition therein
contained. No waiver of any default of Lessee hereunder shall be implied from
any omission by Lessor to take any action on account of such default if such
default persists or is repeated, and no express waiver shall affect default
other than as specified in said waiver. The consent or approval by Lessor to
or of any act by Lessee requiring Lessor's consent or approval shall not be
deemed to waive or render unnecessary Lessor's consent to or approval of any
subsequent similar acts by Lessee.
SECTION 14.5 LEGAL COSTS. The prevailing party in any dispute hereunder
shall be entitled to recover, upon demand, for any reasonable costs or
expenses incurred in connection with any breach or default under this Lease,
whether or not suit is commenced or judgment entered. Such costs shall
include reasonable legal fees and costs incurred for the negotiation of a
settlement, enforcement of rights or otherwise. Furthermore, if any action
for breach of or to enforce the provisions of this Lease is commenced, the
court in such action shall award to the party in whose favor a judgment is
entered a reasonable sum as attorneys' fees and costs. Such attorneys' fees
and costs shall be paid by the losing party in such action. Lessee shall also
indemnify Lessor against and hold Lessor harmless from all costs, expenses,
demands and liability incurred by Lessor if Lessor becomes or is made a party
to any claim or action (a) instituted by Lessee, or by any third party
against Lessee; (b) for foreclosure of any lien for labor or material
furnished to or for Lessee or such other person; (c) otherwise arising out of
or resulting from any act or transaction of Lessee or such other person; or
(d) necessary to protect Lessor's interest under this Lease in a bankruptcy
proceeding, or other proceeding under Title 11 of the United States Code, as
amended. Lessee shall defend Lessor against any such claim or action at
Lessee's expense with counsel reasonably acceptable to Lessor or, at Lessor's
election, Lessee shall reimburse Lessor for any legal fees or costs incurred
by Lessor in any such claim or action.
In addition, Lessee shall pay Lessor's reasonable attorneys' fees
incurred in connection with Lessee's request for Lessor's consent in
connection with any act which Lessee proposed to do and which requires
Lessor's consent.
SECTION 14.6 WAIVER OF DAMAGES FOR REENTRY. Lessee hereby waives all
claims by Lessor's reentering and taking possession of the Premises or
removing and storing the property of Lessee as permitted under this Lease and
will save Lessor harmless from all losses, costs or damages occasioned Lessor
thereby. No such reentry shall be considered or construed to be a forcible
entry by Lessor.
-21-
ARTICLE 15
SUBORDINATION/ESTOPPEL
SECTION 15.1 LEASE SUBORDINATE. This Lease shall be subject and
subordinate to any mortgage, deed of trust or ground lease now or hereafter
placed upon the Premises, the Office Complex, the Property, or any portion
thereof by Lessor, its successors or assigns, and to amendments,
replacements, renewals and extensions thereof. Lessee agrees at any time
hereafter, within ten (10) days following Lessee's receipt of written demand,
to execute and deliver any instruments, releases, or other documents that may
be reasonably required for the purpose of subjecting and subordinating this
Lease, as above provided, to the lien of any such mortgage, deed of trust or
ground lease. It is agreed, nevertheless, that as long as Lessee is not in
default beyond any applicable curative periods in the payment of Base Rent,
Additional Rent, and the payment of other charges to be paid by Lessee under
this Lease, and the performance of all covenants, agreements and conditions
to be performed by Lessee under this Lease, then neither Lessee's right to
quiet enjoyment under this Lease, nor the right of Lessee to continue to
occupy the Premises and to conduct its business thereon, in accordance with
the terms of this Lease as against any lessor, lessee, mortgagee, trustee, or
their successors or assigns shall be interfered with.
SECTION 15.2 ATTORNMENT. The above subordination shall be effective
without the necessity of the execution and delivery of any further
instruments on the part of Lessee to effectuate such subordination.
Notwithstanding anything hereinabove contained in this Article 15, in the
event the holder of any mortgage, deed of trust or ground lease shall at any
time elect to have this Lease constitute a prior and superior lien to its
mortgage, deed of trust or ground lease, then, and in such event, upon any
such holder or landlord notifying Lessee to that effect in writing, this
Lease shall be deemed prior and superior in lien to such mortgage, deed of
trust, ground lease, whether this Lease is dated prior or subsequent to the
date of such mortgage, deed of trust or ground lease and Lessee shall execute
such attornment agreement as may be reasonably requested by said holder or
landlord.
SECTION 15.3 LESSEE'S NOTICE OF DEFAULT. Lessee agrees, provided the
mortgagee, ground lessor or trust deed holder under any mortgage, ground
lease, deed of trust or other security instrument shall have notified Lessee
in writing (by the way of a notice of assignment of lease or otherwise) of
its address, Lessee shall give such mortgagee, ground lessor or trust deed
holder or other secured party ("Mortgagee"), simultaneously with delivery of
notice to Lessor, by registered or certified mail, a copy of any such notice
of default served upon Lessor. Lessee further agrees that said Mortgagee
shall have the right to cure any alleged default during the same period that
Lessor has to cure such default.
SECTION 15.4 ESTOPPEL CERTIFICATES. Lessee agrees from time to time upon
not less than twenty (20) days prior written request by Lessor to deliver to
Lessor a statement in writing certifying (a) that this Lease is unmodified
and in full force and effect (or if there have been modifications that the
Lease as modified is in full force and effect and stating the modifications);
(b) the dates to which the rent and other charges have been paid; (c) Lessor
is not in default in any provision of this Lease or, if in default, the
nature thereof specified in detail; (d) the amount of monthly rental
currently payable by Lessee; (e) the amount of any prepaid rent, and (f) such
other matters as may be reasonably requested by Lessor or any mortgagee or
prospective purchaser of the Office Complex.
If Lessee does not deliver such statement to Lessor within such twenty
(20) day period, Lessor and any prospective purchaser or encumbrancer of the
Premises or the Office Complex may conclusively presume and rely upon the
following facts: (i) that the terms and provisions of this Lease have not
been changed except as otherwise represented by Lessor; (ii) that this Lease
has not been canceled or terminated and is in full force and effect, except
as otherwise represented by Lessor; (iii) that the current amounts of the
Base Rent and Security Deposit are as represented by Lessor and that any
changes made against the Security Deposit are uncontested and valid; (iv)
that there have been no subleases or assignments of the Lease; (v) that not
more than one month's Base Rent or other charges have been paid in advance;
and (vi) that Lessor is not in default under the Lease. In such event, Lessee
shall be estopped from denying the truth of such facts.
SECTION 15.5 NON-DISTURBANCE AGREEMENT. Notwithstanding anything
contained herein to the contrary: prior to the Commencement Date hereof,
Lessor shall deliver to Lessee an agreement executed by the holder of any
mortgage lien against the Office Complex confirming its agreement not to
disturb Lessee's possession of the Premises or to terminate this Lease so
long as Lessee is not in default of this Lease, except as specifically set
forth in this Lease (a "Non-Disturbance Agreement").
-22-
ARTICLE 16
MISCELLANEOUS
SECTION 16.1 TIME IS OF THE ESSENCE. Time is of the essence with respect
to the performance of every provision of this Lease in which time of
performance is a factor.
SECTION 16.2 MEMORANDUM OF LEASE. No Memorandum of this Lease may be
recorded by Lessee without the prior written consent of Lessor.
SECTION 16.3 JOINT AND SEVERAL LIABILITY. All parties signing this Lease
as Lessee shall be jointly and severally liable for all obligations of Lessee.
SECTION 16.4 BROKER. Lessee represents that Lessee has dealt directly
with and only with Bradford Realty Services of Dallas, Inc. and ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, as broker, in connection with this Lease and that insofar as Lessee
knows, no other broker negotiated or participated in negotiations of this
Lease or submitted or showed the Premises or is entitled to any commission in
connection therewith. Each party shall indemnify and hold the other party
harmless from any claim by a broker or finder claiming a right to a fee or
commission under or through it.
SECTION 16.5 NOTICES. All notices, demands and requests shall be in
writing, and shall be effectively served by forwarding such notice, demand or
request by certified or registered mail, postage prepaid, or by commercial
overnight courier service addressed as follows:
(a) IF ADDRESSED TO LESSEE:
EXE Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
EXE Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ______
▇▇▇▇▇▇, ▇▇▇▇▇ _______
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
(b) IF ADDRESSED TO LESSOR:
BLI-8787, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
or at such other address as Lessor and Lessee may hereafter designate by
written notice. The effective date of all notices shall be the time of
mailing such notice or the date of delivery to a commercial overnight courier
service.
SECTION 16.6 LESSOR'S AGENT. All rights and remedies of Lessor under
this Lease or that may be provided by law may be executed by Lessor in its
own name individually, or in the name of its agent and all legal proceedings
for the enforcement of any such rights or remedies, including those set forth
in Article 14, may be commenced and prosecuted to final judgment and
execution by Lessor in its own name or in the name of its agent.
-23-
SECTION 16.7 QUIET POSSESSION. Lessor covenants and agrees that Lessee,
upon paying the Base Rent, Additional Rent and other charges herein provided
for and observing and keeping the covenants, agreements and conditions of
this Lease on its part to be kept and performed, shall lawfully and quietly
hold, occupy and enjoy the Premises during the term of this Lease. If Lessor
fails to perform any of its obligations hereunder within thirty (30) days
after written notice thereof from Lessee or such longer period of time if
such default is not capable of cure within thirty (30) days but Lessor is
pursuing a cure, Lessee shall be entitled, as its sole remedy, in the event
that such default is not cured within the applicable cure period, to take
such action as may be required to have been taken by Lessor under the Lease,
in which event Lessor agrees to pay to Lessee within thirty (30) days after
receipt of written notice from Lessee (with accompanying paid invoices) all
reasonable cost and expenses incurred by Lessee in connection therewith,
failing which Lessee shall be entitled to offset such sums against the Rent
next becoming due under the Lease; provided, such offset shall not exceed
more than twenty percent (20%) of monthly Base Rent payable each month until
such offset has been fully recouped. In the event the expenditure cannot be
fully recouped from the next monthly payment of Base Rent as a result of such
limitation, Lessee shall be entitled to recover interest with respect to each
subsequent monthly offset from the date of the expenditure to the date of
offset at a per annum rate equal to the bank prime rate publicized in the
WALL STREET JOURNAL, as the same may change from time to time.
SECTION 16.8 SUCCESSORS AND ASSIGNS. The covenants and agreements herein
contained shall bind and inure to the benefit of the Lessor, its successors
and assigns, and Lessee and its permitted successors and assigns.
SECTION 16.9 SEVERABILITY. If any term or provision of this Lease shall
to any extent be held invalid or unenforceable, the remaining terms and
provisions of this Lease shall not be affected thereby, but each term and
provision of this Lease shall be valid and enforced to the fullest extent
permitted by law. This Lease shall be construed and enforced in accordance
with the laws of the state in which the Premises are located.
SECTION 16.10 NO ABANDONMENT OR WASTE. Lessee covenants not to do or
suffer any waste or damage or disfigurement or injury to the Premises or
Office Complex and Lessee further covenants that it will not vacate or
abandon the Premises during the term of this Lease.
SECTION 16.11 TRANSFERS BY LESSOR. The term "Lessor" as used in this
Lease so far as covenants or obligations on the part of Lessor are concerned
shall be limited to mean and include only the owner or owners of the Office
Complex at the time in question, and in the event of any transfer or
transfers or conveyances the then grantor, provided that the grantee
expressly assumes the obligations of Lessor hereunder, shall be automatically
freed and released from all personal liability accruing from and after the
date of such transfer or conveyance as respects the performance of any
covenant or obligation on the part of Lessor contained in this Lease to be
performed, it being intended hereby that the covenants and obligations
contained in this Lease on the part of Lessor shall be binding on the Lessor,
its successors and assigns, only during and in respect to their respective
successive periods of ownership.
In the event of a sale or conveyance by Lessor of the Office Complex or
any part of the Office Complex, the same shall operate to release Lessor from
any future liability upon any of the covenants or conditions herein
contained, provided that the grantee expressly assumes the obligations of
Lessor hereunder, and in such event Lessee agrees to look solely to the
responsibility of the successor in interest of Lessor in and to this Lease.
This Lease shall not be affected by any such sale or conveyance, and Lessee
agrees to attorn to the purchaser or grantee, which shall be personally
obligated on this Lease only so long as it is the owner of Lessor's interest
in and to this Lease.
SECTION 16.12 HEADINGS. The marginal or topical headings of the several
articles and sections are for convenience only and do not define, limit or
construe the contents of said articles and sections.
SECTION 16.13 WRITTEN AGREEMENT. All preliminary negotiations are
merged into and incorporated in this Lease, except for written collateral
agreements executed contemporaneously herewith.
SECTION 16.14 MODIFICATIONS OR AMENDMENTS. This Lease can only be
modified or amended by an agreement in writing signed by the parties hereto.
No receipt of money by Lessor from Lessee or any other person after
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 reinstate,
-24-
continue or extend the term of this Lease or affect any such notice, demand
or suit, or imply consent for any action for which Lessor's consent is
required, unless specifically agreed to in writing by Lessor. Any amounts
received by Lessor after a default may be allocated to any specific amounts
due from Lessee to Lessor as Lessor determines.
SECTION 16.15 LESSOR CONTROL. Lessor shall have the right to close any
portion of the building area or land area to the extent as may, in Lessor's
reasonable opinion, be necessary to prevent a dedication thereof or the
accrual of any rights to any person or the public therein; provided, however,
notwithstanding anything contained herein to the contrary, if any activity by
Lessor under this Section 16.15 prevents Lessee's access to the Premises or
if same otherwise substantially interferes with Lessee's use of the Premises
for a period of at least thirty (30) days, Lessee shall be entitled to
receive an equitable and proportionate abatement of Base Rent until same has
been corrected. Lessor shall at all times have full control management and
direction of the Office Complex, subject to the rights of Lessee in the
Premises, and Lessor reserves the right at any time and from time to time to
reduce, increase, enclose or otherwise change the size, number and location
of buildings, layout and nature of the Office Complex, to construct
additional buildings and additions to any building, and to create additional
rentable areas through use and/or enclosure of common areas, or otherwise,
and to place signs on the Office Complex, and to change the name, address,
number or designation by which the Office Complex is commonly known. In the
event Lessor changes the name or address of the Office Complex, Lessor shall
reimburse to Lessee the reasonable cost incurred by Lessee for replacing its
stationery, letterhead, employees' business cards and other related items. No
implied easements are granted by this Lease.
SECTION 16.16 UTILITY EASEMENT. Lessee shall permit Lessor (or its
designees) to erect, use, maintain, replace and repair pipes, cables,
conduits, plumbing, vents, and telephone, electric and other wires or other
items, in, to and through the Premises, as and to the extent that Lessor may
now or hereafter deem necessary or appropriate for the proper operation and
maintenance of the Office Complex, provided that Lessor shall not
unreasonably interfere with Lessee's use and occupancy of the Premises.
SECTION 16.17 NOT BINDING UNTIL PROPERLY EXECUTED. Employees or agents
of Lessor have no authority to make or agree to make a lease or other
agreement or undertaking in connection herewith. The submission of this
document for examination does not constitute an offer to lease, or a
reservation of, or option for, the Premises. This document becomes effective
and binding only upon the execution and delivery hereof by the proper
officers of Lessor and by Lessee. Lessee confirms that Lessor and its agents
have made no representations or promises with respect to the Premises or the
making of or entry into this Lease except as in this Lease expressly set
forth, and agrees that no claim or liability shall be asserted by Lessee
against Lessor for, and Lessor shall not be liable by reason of, breach of
any representations or promises not expressly stated in this Lease. This
Lease, except for the Building Rules and Regulations, in respect to which
Section 16.18 of this Article shall prevail, can be modified or altered only
by agreement in writing between Lessor and Lessee, and no act or omission of
any employee or agent of Lessor shall alter, change or modify any of the
provisions hereof.
SECTION 16.18 BUILDING RULES AND REGULATIONS. Lessee shall perform,
observe and comply with the Building Rules and Regulations of the Office
Complex as set forth below, with respect to the safety, care and cleanliness
of the Premises and the Office Complex, and the preservation of good order
thereon, and, upon written notice thereof to Lessee, Lessee shall perform,
observe, and comply with any reasonable changes, amendments or additions
thereto as from time to time shall be established and deemed advisable by
Lessor for tenants of the Office Complex. Lessor shall not be liable to
Lessee for any failure of any other tenant or tenants of the Office Complex
to comply with such Building Rules and Regulations; provided, however, Lessor
agrees to apply the Building Rules and Regulations equally to all tenants of
the Office Complex.
SECTION 16.19 COMPLIANCE WITH LAWS AND RECORDED COVENANTS. Lessee shall
not use the Premises or permit anything to be done in or about the Premises
which will, in any way, conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be
enacted or promulgated. Lessee shall, at its sole cost and expense, promptly
comply with all laws, statutes, ordinances and governmental rules and
regulations now in force or which may hereafter be in force, and with the
requirements of any fire insurance underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use or
occupancy of the Premises. Lessee shall use the Premises and comply with any
recorded covenants, conditions, and restrictions affecting the Premises and
the Office Complex as of the commencement of the Lease or which are recorded
-25-
during the lease term, provided same do not prevent Lessee from occupying the
Premises in accordance with the permitted use. Lessor shall deliver the
Premises to Lessee in compliance with, and shall, at its sole cost and
expense (but subject to Article 2 hereof), cause the Office Complex to comply
with any and all such laws, statutes, ordinances and governmental rules and
regulations, all such requirements of fire insurance underwriters, and all
such recorded covenants, conditions and restrictions relating to the
structural components, exterior components, common areas and rentable space
(other than the Premises) of the Office Complex; provided, however, that
Lessor shall be responsible for compliance of the exterior and common areas
of the Office Complex and the "core" areas of the Premises, consisting of
elevators, lobbies and restrooms, with the Americans with Disabilities Act,
and Lessee shall be responsible for compliance of the remainder of the
Premises with the Americans with Disabilities Act. In no event shall Lessee
be responsible for making any structural alterations to the Premises which
may be required pursuant to such legal requirements.
SECTION 16.20 LESSEE OBLIGATIONS SURVIVE TERMINATION. All obligations of
Lessee hereunder not fully performed as of the expiration or earlier
termination of the term of this Lease shall survive the expiration or earlier
termination of the term hereof, including, without limitation, all payment
obligations with respect to Operating Expenses and Real Estate Taxes and all
obligations concerning the condition of the Premises.
SECTION 16.21 LESSEE'S WAIVER. Lessee agrees to look solely to Lessor's
interest in the Office Complex for the recovery of any judgment from Lessor,
it being agreed that Lessor, or if Lessor is a partnership, its partners
whether general or limited, or if Lessor is a corporation, its directors,
officers or shareholders, shall never be personally liable for any such
judgment.
SECTION 16.22 LESSEE AUTHORIZATION. Lessee shall furnish to Lessor
promptly upon demand, a corporate resolution, proof of due authorization of
partners, or other appropriate documentation reasonably requested by Lessor
evidencing the due authorization of Lessee to enter into this Lease.
SECTION 16.23 NO PARTNERSHIP OR JOINT VENTURE. This Lease shall not be
deemed or construed to create or establish any relationship or partnership or
joint venture or similar relationship or arrangement between Lessor and
Lessee hereunder.
SECTION 16.24 LESSEE'S OBLIGATION TO PAY MISCELLANEOUS TAXES. Lessee
shall pay, prior to delinquency, all taxes assessed or levied upon its
occupancy of the Premises, or upon the trade fixtures, furnishings, equipment
and all other personal property of Lessee located in the Premises, and when
possible, Lessee shall cause such trade fixtures, furnishings, equipment and
other personal property to be assessed and billed separately from the
property of Lessor. In the event any or all of Lessee's trade fixtures,
furnishings, equipment or other personal property, or Lessee's occupancy of
the Premises, shall be assessed and taxed with the property of Lessor, Lessee
shall pay to Lessor its share of such taxes within thirty (30) days after
delivery to Lessee by Lessor of a statement in writing setting forth the
amount of such taxes applicable to Lessee's personal property.
SECTION 16.25 PROHIBITED SIGNS. Subject to SECTION 7.1 hereof, Lessee
shall not place, or permit to be placed or maintained, on any exterior door,
wall or window of the Premises any sign, awning or canopy, or advertising
matter or other thing of any kind, and will not place or maintain any
decoration, lettering or advertising matter on the glass of any window or
door, or that can be seen through the glass, of the Premises except as
specifically approved in writing by Lessor. Lessee further agrees to maintain
such sign, awning, canopy, decoration, lettering, advertising matter or thing
as may be approved, in good condition and repair at all times, reasonable
wear and tear and fire excepted. Lessee agrees at Lessee's sole cost, that
any Lessee sign will be maintained in strict conformance with Lessor's sign
criteria, if any, as to design, material, color, location, size, letter
style, and method of installation.
SECTION 16.26 RENEWAL OPTION. Lessor hereby grants Lessee (but no
assignee or subtenant) two (2) options to renew this Lease, each option to be
for a period of sixty (60) months, for a total of one hundred twenty (120)
months in the event both renewal options are exercised. Each said renewal
option shall be exercised by Lessee notifying Lessor thereof in writing not
more than two hundred seventy (270) and at least two hundred ten (210) days
prior to the expiration of the then current lease or renewal term, as the
case may be. In the event a renewal agreement has not been executed at least
one hundred twenty (120) days prior to the expiration date of the current
lease or renewal term, the option shall automatically become null and void.
Each such renewal shall be subject to all of the terms and conditions of this
Lease except that (i) the rentals payable during each renewal term shall be
as set forth below and (ii) no further renewal option shall exist during the
second renewal term. It
-26-
shall be a condition to Lessee's exercising any renewal option herein granted
that (y) Lessee not be then in default under this Lease and (z) Lessee shall
have previously exercised the immediately preceding renewal option, if any,
so that the second renewal option may not be exercised if Lessee has failed
to exercise the first renewal option.
The Base Rent for each renewal term shall be based on not less than 95%
of the then prevailing rental rates for properties of equivalent quality,
size, utility and location in the Dallas/Forth Worth market, with the length
of the lease term and the creditworthiness of the Lessee taken into account;
provided, however, that in no event shall the Base Rent in any renewal period
be less than the Base Rent for the last month immediately preceding said
renewal period.
Upon notification from Lessee of its intent to exercise each renewal
option, Lessor shall, within fifteen (15) days thereafter, notify Lessee in
writing of the Base Rent for the applicable renewal term; Lessee shall,
within fifteen (15) days following receipt of same, notify Lessor in writing
of the acceptance or rejection of the proposed Base Rent. In the event of
rejection by Lessee, Lessee may rescind the exercise of such renewal option
by written notice to Lessor within such fifteen (15) day period for
acceptance or rejection. If Lessee does not so rescind such exercise, the
Base Rent for the applicable renewal term shall be determined as follows:
(a) Within fifteen (15) days following notification of rejection,
Lessor and Lessee shall each select an arbitrator who shall be a
Licensed Texas real estate broker having a minimum of five (5)
years experience in leasing office space and being a member of the
North Chapter of the Texas Society of Office and Industrial
Realtors (or its successor organization). Notice shall be given to
the other party of the name of the arbitrator selected. If either
Lessor or Lessee fails to appoint such an arbitrator within the
allocated time, the arbitrator appointed by the other party shall
make the determination of the Base Rent and this determination
shall be final and binding on both parties.
(b) If both Lessor and Lessee appoint an arbitrator in accordance with
the provisions above and the two arbitrators cannot agree upon a
Base Rent for the renewal term within thirty (30) days following
their appointment, the two arbitrators shall forthwith select a
third disinterested and qualified arbitrator having like
qualifications and each of the original arbitrators will
immediately submit his or her judgment as to the appropriate Base
Rent in writing to the third arbitrator. Within ten (10) days after
such submittal, the third arbitrator shall make the determination
of the Base Rent for such renewal period and the determination of
the third arbitrator shall be final and binding on both parties. In
the event the two arbitrators appointed by the Lessee and Lessor
cannot agree upon a third arbitrator, then the third arbitrator
shall be appointed by the then President of the North Chapter of
the Texas Society of Office and Industrial Realtors (or its
successor organization). The Base Rent agreed to by the two
appointed arbitrators or, if applicable, the Base Rent determined
by the third arbitrator shall be final and binding upon the parties
hereto. Lessor and Lessee shall each bear the expense of their
arbitrator and the expense of a third arbitrator, if needed, shall
be shared equally by both parties.
SECTION 16.27 LEASEHOLD IMPROVEMENTS. As of the date hereof, Lessee has
not provided to Lessor any plans for any improvements to be made to the
Premises. Lessee accepts the Premises in the current, "as is" condition.
Subject to the terms and conditions of this SECTION 16.27, the Lessor agrees
to provide to Lessee a refurbishment allowance (the "Allowance") of up to
$572,760.00 (including $496,392.00 for tenant improvements, $38,184.00 for
relocation costs, $36,274.80 for full construction drawings and $1,909.20 for
preliminary drawings) to be utilized toward the design, construction,
refurbishment and remodeling of the Premises (herein called the "Lessee
Finish"). The Allowance shall be provided upon the fulfillment of the
following conditions:
(a) Lessor must approve all Lessee's plans and specifications
respecting the Lessee Finish to be undertaken, which approval shall
not be unreasonably withheld, conditioned or delayed and shall be
deemed given unless Lessor has disapproved same within twenty (20)
days after Lessee delivers same to Lessor.
(b) Following approval of the plans and specifications, Lessee shall
obtain bids from at least three (3) competent contractors for the
construction. The Lessor may select one (1) of the contractors to
submit bids and shall be allowed to participate in the review of
the bids. Following the review of the bids, Lessee shall select the
contractor to perform the Lessee Finish based on Lessee's
determination as to the most qualified contractor offering the
-27-
lowest bid, subject to Lessor's approval, which shall not be
unreasonably withheld, conditioned or delayed. Lessee shall
promptly inform Lessor of the final construction costs for the
Lessee Finish. Lessee shall be responsible for the management of
the construction and the contractor.
(c) The Allowance shall be delivered by Lessor to Lessee incrementally
as construction progresses on a percentage completion basis within
ten (10) days following receipt of a draw request, invoices and
lien waivers therefor (and if required by Lessor, a certificate
from the contractor that all work has been completed in accordance
with the plans and specifications). The portion of the Allowance
attributable to relocation expenses, if not expended for
improvements, shall be paid by Lessor to Lessee within the later of
(i) thirty (30) days after the Commencement Date; or (ii) thirty
(30) days after written notice to Lessor with accompanying invoices
substantiating such relocation expenses. If the total cost of the
Lessee Finish (including design, demolition and construction costs)
exceeds the Allowance, Lessee shall deposit with Lessor the balance
of the funds required to complete the Lessee Finish within ten (10)
days following Lessor's notice to Lessee of the amount due. Lessee
shall not commence any Lessee Finish until Lessee deposits all
amounts due. In no event will Lessor be required to expend funds in
excess of the Allowance or in excess of the amount allocated to a
particular item, and Lessee shall be and remain liable and
responsible for the prompt payment of all costs, fees and expenses
in excess of the Allowance. Any amounts expended by Lessor in
excess of the Allowance shall be payable to Lessor by Lessee upon
demand.
(d) The costs and fees for the design and space planning relating to
the Lessee Finish shall be charged against the Allowance.
(e) Prior to beginning any such work, Lessee shall provide Lessor with
evidence of builder's "all risk" insurance covering both Lessee and
all of Lessee's contractors against third party liability or
workers' compensation claims arising out of all construction and
associated activities. All policies of insurance shall be subject
to Lessor's prior approval, which approval shall not be
unreasonably withheld, conditioned or delayed, and shall be
endorsed showing Lessor and such agent or agents as Lessor may
designate as additional named insureds. The provisions of this
paragraph (as well as all rights and remedies available to Landlord
as provided in the Lease should Tenant fail to meet its obligations
hereunder) shall expressly survive the expiration or earlier
termination of the Lease.
(f) The Lessee Finish shall be completed in accordance with the plans
and specifications approved by Lessor, and Lessee shall provide to
Lessor lien waivers and releases, in recordable form, from all
contractors, subcontractors and materialmen involved in such
construction.
SECTION 16.28 EXHIBITS. The following are made a part hereof, with the same
force and effect as if specifically set forth herein:
(a) Building Rules and Regulations - Exhibit "A."
(b) Signage - Exhibit "B."
SECTION 16.29 LANDLORD'S LIEN. Lessor hereby agrees to subordinate any
and all statutory, constitutional and other landlord liens against the assets
or property of Lessee to the lien of Lessee's primary lender financing
Lessee's business operations, and agrees to execute and deliver upon request
of Lessee's lender such reasonable subordination agreement as may be
requested to evidence and/or confirm such subordination.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written.
-28-
LESSOR:
BLI-8787, LTD.,
a Texas limited partnership
By: ▇▇▇▇▇▇▇ ▇▇▇▇ Investments, Inc.,
a Texas corporation, general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, President
LESSEE:
EXE TECHNOLOGIES, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Its: President & CEO
-------------------------------------
-29-
EXHIBIT "A"
BUILDING RULES AND REGULATIONS
1. Any sign, lettering, picture, notice or advertisement installed on
or in any part of the Premises and visible from the exterior of the Premises,
shall be installed at Lessee's sole cost and expense, and in such manner,
character and style as Lessor may approve in writing, which consent shall not
be unreasonably withheld, conditioned or delayed. In the event of a violation
of the foregoing by Lessee, Lessor may remove the same without any liability
and may charge the expense incurred by such removal to Lessee.
2. No awning or other projection shall be attached to the outside walls
of the Office Complex. No curtains, blinds, shades or screens visible from
the exterior of the Office Complex or visible from the exterior of the
Premises, shall be attached to or hung in, or used in connection with any
window or door of the Premises without the prior written consent of Lessor.
Such curtains, blinds, shades, screens or other fixtures must be of a
quality, type, design and color, and attached in the manner approved by
Lessor.
3. Lessee, its servants, employees, customers, invitees and guests
shall not obstruct sidewalks, entrances, passages, corridors, vestibules,
halls, elevators, or stairways in and about the Office Complex which are used
in common with other tenants and their servants, employees, customers, guests
and invitees, and which are not a part of the Premises of Lessee. Lessee
shall not place objects against glass partitions or doors or windows which
would be unsightly from the Office Complex corridors or from the exterior of
the Office Complex, or that would interfere with the operation of any device,
equipment, radio, television broadcasting or reception from or within the
Office Complex or elsewhere and shall not place or install any projections,
antennas, aerials or similar devices outside of the Premises or on the Office
Complex.
4. Lessee shall not waste electricity, water or air conditioning and
shall, at no cost to Lessee, cooperate fully with Lessor to insure the most
effective operation of the Office Complex's heating and air conditioning
systems and shall refrain from attempting to adjust any controls other than
unlocked room thermostats, if any, installed for Lessee's use. Lessee shall
keep corridor doors closed.
5. Lessee assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured after normal business
hours, subject to Lessor's security obligations hereunder.
6. No person or contractor not employed by Lessor shall be used to
perform janitorial work, window washing cleaning, maintenance, repair or
similar work in the Premises without the written consent of Lessor, which
consent shall not be unreasonably withheld, conditioned or delayed.
7. In no event shall Lessee bring into the Office Complex inflammables,
such as gasoline, kerosene, naphtha and benzine, or explosives or any other
article of intrinsically dangerous nature. If, by reason of the failure of
Lessee to comply with the provisions of this paragraph, any insurance premium
for all or any part of the Office Complex shall at any time be increased,
Lessee shall make immediate payment of the whole of the increased insurance
premium, without waiver of any of Lessor's other rights at law or in equity
for Lessee's breach of this Lease.
8. Lessee shall comply with all applicable federal, state and municipal
laws, ordinances and regulations, and building rules and shall not directly
or indirectly make any use of the Premises which may be prohibited by any of
the foregoing or which may be dangerous to persons or property or may
increase the cost of insurance or require additional insurance coverage.
9. Lessor shall have the right to prohibit any advertising by Lessee
which in Lessor's reasonable opinion tends to impair the reputation of the
Office Complex or its desirability as an office complex for office use, and
upon written notice from Lessor, Lessee shall refrain from or discontinue
such advertising.
10. The Premises shall not be used for cooking (except for the use of
ordinary office coffee makers and microwave ovens in kitchen areas), lodging,
sleeping or for any immoral or illegal purpose.
11. Lessee and Lessee's servants, employees, agents, visitors and
licensees shall observe faithfully and comply strictly with the foregoing
rules and regulations and such other and further appropriate rules and
regulations as Lessor or Lessor's agent may from time to time adopt.
Reasonable notice of any additional rules and regulations shall be given in
such manner as Lessor may reasonably elect.
12. Unless expressly permitted by the Lessor, no additional locks or
similar devices shall be attached to any door or window and no keys other
than those provided by the Lessor shall be made for any door. If more than
two keys for one lock are desired by the Lessee, the Lessor may provide the
same upon payment by the Lessee. Upon termination of this Lease or of the
Lessee's possession, the Lessee shall surrender all keys of the Premises and
shall explain to the Lessor all combination locks on safes, cabinets and
vaults.
13. Any carpeting cemented down by Lessee shall be installed with a
releasable adhesive. In the event of a violation of the foregoing by Lessee,
Lessor may charge the expense incurred by such removal to Lessee.
14. The water and wash closets, drinking fountains and other plumbing
fixtures shall not be used for any purpose other than those for which they
were constructed, and no sweepings, rubbish, rags, coffee grounds or other
substances shall be thrown therein. All damages resulting from any misuse of
the fixtures shall be borne by the Lessee who, or those servants, employees,
agents, visitors or licensees, shall have caused the same. No person shall
waste water by interfering or tampering with the faucets or otherwise.
15. No electrical circuits for any purpose shall be brought into the
leased premises without Lessor's written permission, which permission shall
not be unreasonably withheld, conditioned or delayed, specifying the manner
in which same may be done.
16. No bicycle or other vehicle, and no dog or other animal shall be
allowed in offices, halls, corridors, or elsewhere in the building.
17. Lessee shall not throw anything out of the door or windows, or down
any passageways or elevator shafts.
18. All loading, unloading, receiving or delivery of goods, supplies or
disposal of garbage or refuse shall be made only through entryways and
freight elevators provided for such purposes and indicated by Lessor. Lessee
shall be responsible for any damage to the building or property of its
employees or others and injuries sustained by any person whomsoever resulting
from the use or moving of such articles in or out of the leased premises, and
shall make all repairs and improvements required by governmental authorities
in connection with the use or moving of such articles.
19. All safes, equipment or other heavy articles shall be carried in or
out of the Premises only at such time and in such manner as shall be
prescribed in writing by Lessor, and Lessor shall in all cases have the right
to specify the proper position of any such safe, equipment or other heavy
article, which shall only be used by Lessee in a manner which will not
interfere with or cause damage to the leased premises or the building in
which they are located, or to the other tenants or occupants of said
building. Lessee shall be responsible for any damage to the building or the
property of its employees or others and injuries sustained by any person
whomsoever resulting from the use or moving of such articles in or out of the
leased premises, and shall make all repairs and improvements required by
governmental authorities in connection with the use or moving of such
articles.
20. Canvassing, soliciting, and peddling in the building is prohibited
and each Lessee shall cooperate to prevent the same.
21. Vending machines shall not be installed without permission of the
Lessor, which permission shall not be unreasonably withheld, conditioned or
delayed.
22. Wherever in these Building Rules and Regulations the word "Lessee"
occurs, it is understood and agreed that it shall mean Lessee's associates,
agents, clerks, servants and visitors. Wherever the word "Lessor" occurs, it
is understood and agreed that it shall mean Lessor's assigns, agents, clerks,
servants and visitors.
23. Lessor shall have the right to enter upon the leased premises at
all reasonable hours for the purpose of inspecting the same following notice
thereof to Lessee as provided in the Lease (except that in the case of
emergencies no notice shall be required), provided that Lessor shall not
unreasonably interfere with Lessee's use and occupancy of the Leased Premises.
24. Lessor shall have the right to enter the leased premises at hours
convenient to the Lessee for the purpose of exhibiting the same to
prospective tenants within the 60-day period prior to the expiration of this
Lease following notice thereof to Lessee as provided in the Lease, and may
place signs advertising the leased premises for rent on the windows and doors
of said Premises at any time within said 60-day period, provided that Lessor
shall not unreasonably interfere with Lessee's use and occupancy of the
Leased Premises.
25. Lessees, its servants, employees, customers, invitees and guests
shall, when using the common parking facilities, if any, in and around the
building, observe and obey all signs regarding fire lanes and no parking
zones, and when parking always park between the designated lines. Lessor
reserves the right to tow away, at the expense of the owner, any vehicle
which is improperly parked in a no parking zone. All vehicles shall be parked
at the sole risk of the owner, and Lessor assumes no responsibility for any
damage to or loss of vehicles.
26. At all times the Office Complex shall be in charge of Lessor's
employee in charge and (a) persons may enter the Office Complex only in
accordance with Lessor's regulations, (b) persons entering or departing from
the Office Complex may be questioned as to their business in the Office
Complex, and the right is reserved to require the use of an identification
card or other access device and the registering of such persons as to the
hour of entry and departure, nature of visit, and other information deemed
necessary for the protection of the Office Complex, and (c) all entries into
and departures from the Office Complex will take place through such one or
more entrances as Lessor shall from time to time designate. Lessor will
normally not enforce clauses (a), (b) and (c) above from 7:00 a.m. to 6:00
p.m., Monday through Friday, and from 8:00 a.m. to 1:00 p.m. on Saturdays,
but it reserves the right to do so or not to do so at any time at its sole
discretion. In case of invasion, mob, riot, public excitement, or other
commotion, Lessor reserves the right to prevent access to the Office Complex
during the continuance of the same by closing the doors or otherwise, for the
safety of the tenants or the protection of the Office Complex and the
property therein. Lessor shall in no case be liable for damages for any error
or other action taken with regard to the admission to or exclusion from the
Office Complex of any person.
27. All entrance doors to the Premises shall be locked when the
Premises are not in use. All corridor doors shall also be closed during times
when the air conditioning equipment in the Office Complex is operating so as
not to dissipate the effectiveness of the system or place an overload thereon.
28. Lessor reserves the right at any time and from time to time to
rescind, alter or waive, in whole or in part, any of these Rules and
Regulations when it is deemed necessary, desirable, or proper, in Lessor's
judgment, for its best interest or for the best interest of the tenants of
the Office Complex, provided that such change shall affect all leases of the
Office Complex.
EXHIBIT B
Exterior Building Signage:
Option One - Fiber-optic outline illuminated Cube
EXE Cube to be fabricated from 1/8" stainless steel with .090" returns.
Color/Finish to be determined. Height to be approximately 9', and width to be
approximately 9'. Cube to be outline-illuminated with 5/8" diameter sideglow
fiber-optic cable with remote/accessible metal halide HID light source. Sign
to be pin-mounted from building facade with 4" steel standoffs and approved
fasteners.
Option Two - Illuminated channel letter Cube
EXE Cube to be fabricated as channel letter from 1/8" stainless steel with
.090" returns. Height to be approximately 9', and width to be approximately
9'. Illuminated 1/4" thick white lexan letterfaces to be internally lit with
either neon or fiber-optic source as described above. Sign to be pin mounted
from building facade with 4" steel standoffs and approved fasteners.
Option Three - Backlit stainless steel EXE Cube
EXE Cube to be fabricated as channel letters from 1/8" stainless steel with
.090 returns. Height to be approximately 9', and with to be approximately 9'.
Gold finish to match window color. Cube to be silhouette-illuminated with
60Ma/15mm white neon with remote/accessible ballast. Sign to be pin-mounted
from building facade with 4" steel standoffs and approved fasteners.
Building Entrance Signage:
EXE Technologies signage (at front and back Tower building entries) EXE Cube
and EXE Technologies letterforms to be fabricated as channel letters (Cube
approximately 3' by 3'. Letterforms approximately 10" high x 1-1/2" thick)
from 1/8" stainless steel with .090" returns. Color/finish to be determined.
Cube and Letterforms to be silhouette-illuminated with 60Ma /15mm white neon
with remote/accessible ballasts. Sign to be pin-mounted from building facade
with steel standoffs an approved fasteners.
Attachment: Logo
[LOGO]
EXHIBIT "C"
SPECIFICATIONS FOR LETTER OF CREDIT
AMOUNT: $580,505.96
(3 months @ $19.67/sf)
EXPIRATION: The earlier of one of the following:
- 5 Years after the commencement date
or
- Initial public offering of securities by Lessee
or
- Lessee's net worth, determined in accordance with GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES consistently applied,
increases by an amount equal to or greater than ten million
dollars from that shown on Lessee's audited financial
statements dated December 31, 1997 and for the year then
ended.