SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1999
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 0-20743
OPEN PLAN SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
Virginia 54-1515256
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
4299 Carolina Avenue, Building C 23222
Richmond, Virginia (Zip Code)
(Address of Principal Executive Offices)
(804) 228-5600
(Registrant's Telephone Number, Including Area Code)
Securities registered under Section 12(b) of the Act: None.
Securities registered under Section 12(g) of the Act:
Common Stock, no par value
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Exchange Act during the past
12 months (or for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements for the past
90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
Based on the closing sales price for the Common Stock as reported by the
Nasdaq Stock Market on March 16, 2000 the aggregate market value of the Common
Stock held by non-affiliates of the registrant was $7,188,216.
The number of shares of Common Stock outstanding as of March 16, 2000 was
4,402,891.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Company's definitive Proxy Statement for its 2000 Annual
Meeting of Shareholders (to be filed) are incorporated by reference into Part
III of this Form 10-K.
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) Financial statements, financial statement schedules and reports
included in this Annual Report on Form 10-K
(1) Financial Statements
The response to this portion of Item 14 is submitted as a separate
section of this report.
(2) Financial Statement Schedules
The following schedule,for each of the three years in the period ending
December 31, 1999, is included beginning on the page indicated in this
Annual Report on Form 10-K:
Page:
Schedule II - Valuation and Qualifying Accounts 36
Schedules other than that listed above have been omitted because
such schedules are not required or are not applicable.
(3) The exhibits that are required to be filed or incorporated by reference
herein are as follows:
<TABLE>
<CAPTION>
Exhibit No. Document
<S> <C> <C>
3(i) Amended and Restated Articles of Incorporation, incorporated by reference to Exhibit 3(i)
of the Registrant's Form SB-2 Registration Statement, as amended, File No. 333-3188.
3(ii) Amended and Restated Bylaws. *
4 Form of Stock Certificate, incorporated by reference to Exhibit 4 of the
Registrant's Form SB-2 Registration Statement, as amended, File No. 333-3188.
10.1 Open Plan Systems, Inc. 1996 Stock Incentive Plan, as amended, incorporated by
reference to Exhibit 4.4 of the Registrant's Form S-8 Registration Statement, File No.
333-15217.
10.2 Open Plan Systems, Inc. 1996 Stock Option Plan For Non-Employee Directors, as amended,
incorporated by reference to Exhibit 4.4 of the Registrant's Form S-8 Registration
Statement, File No. 333-15219.
10.3 Buy-Sell Agreement, dated May 15, 1996, between the Registrant and Gregory P. Campbell,
incorporated by reference to Exhibit 10.8 of the Registrant's Form SB-2 Registration
Statement, as amended, File No. 333-3188.
10.4 Tax Sharing Agreement, dated May 1, 1996, between the Registrant and each of the
shareholders named therein, incorporated by reference to Exhibit 10.9 of the Registrant's
Form SB-2 Registration Statement, as amended, File No. 333-3188.
10.5 Form of Employee Non-Qualified Stock Option Agreement, incorporated by reference
to Exhibit 10.10 of the Registrant's Form 10-KSB filed March 27, 1997 File No. 0-20743.
10.6 Form of Non-Employee Director Non-Qualified Stock Option Agreement, incorporated by reference to
Exhibit 10.11 of the Registrant's Form 10-KSB filed March 27, 1997, File No. 0-20743.
10.7 Stock Purchase Agreement, dated as of August 31, 1999, by and between Stan A. Fischer, the
Registrant and A.G. Bertozzi, J. Cullather, J. Wesley Hall, Anthony F. Markel, Gary L. Markel,
Robert F. Mizell, E.W. Mugford and Troy A. Peery, Jr., incorporated by reference to Exhibit 99.2
of the Registrant's Form 8-K filed September 30, 1999, File No. 0-20743.
10.8 Stock Redemption and Sale Agreement, made effective as August 31, 1999, by and between the
Registrant and Thomas H. Corson, William F. Crabtree, John L. Hobey, Charles Kaufmann and W.
Sydnor Settle, incorporated by reference to Exhibit 99.3 of the Registrant's Form 8-K filed
September 30, 1999, File No. 0-20743.
10.9 Stock Purchase Agreement, dated September 24, 1996, between the Registrant, Immaculate Eagle,
Inc., Paul A. Covert, Todd A. Thomann and Siimon, Inc., incorporated by reference to Exhibit 2.1
of the Registrant's Form 8-K filed October 16, 1996, File No. 0-20743.
10.10 Loan and Security Agreement, dated December 1998, by and between Fleet Bank, N.A. and the
Registrant and TFM, incorporated by reference to Exhibit 10.11 of the Registrant's Form 10-KSB
filed April 1, 1999, File 0-20743.
10.11 Management and Consulting Agreement, dated June 17, 1998, between the Registrant and Great
Lakes Capital, incorporated by reference to Exhibit 10.17 of the Registrant's Form 10-Q filed
August 14, 1999, File No. 0-20743.
10.12 Registration Rights Agreement, dated June 17, 1998, between the Registrant and Great Lakes
Capital, LLC incorporated by reference to Exhibit 10.20 of the Registrant's Form 10-Q filed
August 14, 1999, File No. 0-20743.
10.13 Voting and Standstill Agreement between, dated June 17, 1998, the Registrant and Great Lakes
Capital, incorporated by reference to Exhibit 10.19 of the Registrant's Form 10-Q filed August
14, 1999, File No. 0-20743.
10.14 Commercial Lease Contract, dated May 1, 1998, between Liberty Property Limited Partnership and
the Registrant. *
10.15 Commercial Lease Contract, dated September 18, 1998, between Quality Dairy Company and the
Registrant. *
11 Statement re: Computation of Earnings Per Share.
21 Subsidiaries of the Registrant. *
23 Consent of Ernst & Young LLP.
27 Financial Data Schedule. (filed electronically only)
</TABLE>
________
* Filed herewith
(b) Reports on Form 8-K.
On December 22, 1999, the Registrant filed a Current Report on
Form 8-K, dated December 7, 1999, reporting under Items 5 and 7(c) the
issuance of a press release in which the Registrant announced the
results of an arbitration proceeding concerning the former
shareholders of TFM, a company acquired in 1996 by the Registrant. The
arbitration proceeding determined that these former shareholders had
breached their warranties, awarded the Registrant $120,000 and awarded
reasonable and necessary legal fees and expenses to the former TFM
shareholders.
<PAGE>
(c) Exhibits
The response to this portion of Item 14 is submitted as a separate
section of this report.
(d) Financial Statement Schedules
The response to this portion of Item 14 is submitted as a separate
section of this report.
<PAGE>
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
OPEN PLAN SYSTEMS, INC.
By:/s/ John L. Hobey
John L. Hobey
May 15, 2000 Chief Executive Officer
In accordance with the Exchange Act, this report has been signed below by
the following persons on behalf of the registrant and in the capacities and on
the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C> <C>
/s/ John L. Hebey Chief Executive Officer May 15, 2000
John L. Hobey
/s/ William F. Crabtree Chief Financial Officer (principal May 15, 2000
William F. Crabtree financial officer)
/s/ Neil F. Suffa Corporate Controller and Secretary May 15, 2000
Neil F. Suffa (principal accounting officer)
/s/ Troy A. Peery Director May 15, 2000
Troy A. Peery, Jr.
/s/ Anthony F. Markel Director May 15, 2000
Anthony F. Markel
/s/ Theodore L. Chandler, Jr. Director May 15, 2000
Theodore L. Chandler, Jr.
/s/ Robert F. Mizell Director May 15, 2000
Robert F. Mizell
/s/ W. Sydnor Settle Director May 15, 2000
W. Sydnor Settle
/s/ Edwin W. Mugford Director May 15, 2000
Edwin W. Mugford
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit No. Document
<S> <C> <C>
3(i) Amended and Restated Articles of Incorporation, incorporated by reference to Exhibit 3(i) of the
Registrant's Form SB-2 Registration Statement, as amended, File No. 333-3188.
3(ii) Amended and Restated Bylaws *
4 Form of Stock Certificate, incorporated by reference to Exhibit 4 of the Registrant's Form SB-2
Registration Statement, as amended, File No. 333-3188.
10.1 Open Plan Systems, Inc. 1996 Stock Incentive Plan, as amended, incorporated by reference to
Exhibit 4.4 of the Registrant's Form S-8 Registration Statement, File No. 333-15217.
10.2 Open Plan Systems, Inc. 1996 Stock Option Plan For Non-Employee Directors, as amended, incorporated by
reference to Exhibit 4.4 of the Registrant's Form S-8 Registration Statement, File No. 333-15219.
10.3 Buy-Sell Agreement, dated May 15, 1996, between the Registrant and Gregory P. Campbell, incorporated by
reference to Exhibit 10.8 of the Registrant's Form SB-2 Registration Statement, as amended, File No.
333-3188.
10.4 Tax Sharing Agreement, dated May 1, 1996, between the Registrant and each of the shareholders
named therein, incorporated by reference to Exhibit 10.9 of the Registrant's Form SB-2 Registration
Statement, as amended, File No. 333-3188.
10.5 Form of Employee Non-Qualified Stock Option Agreement, incorporated by reference to Exhibit 10.10
of the Registrant's Form 10-KSB filed March 27, 1997 File No. 0-20743.
10.6 Form of Non-Employee Director Non-Qualified Stock Option Agreement, incorporated by reference to Exhibit 10.11 of
the Registrant's Form 10-KSB filed March 27, 1997, File No. 0-20743.
10.7 Stock Purchase Agreement, dated as of August 31, 1999, by and between Stan A. Fischer, the Registrant and A.G.
Bertozzi, J. Cullather, J. Wesley Hall, Anthony F. Markel, Gary L. Markel, Robert F. Mizell, E.W. Mugford and Troy
A. Peery, Jr., incorporated by reference to Exhibit 99.2 of the Registrant's Form 8-K filed September 30, 1999,
File No. 0-20743.
10.8 Stock Redemption and Sale Agreement, made effective as August 31, 1999, by and between the Registrant and Thomas H
Corson, William F. Crabtree, John L. Hobey, Charles Kaufmann and W. Sydnor Settle, incorporated by reference to
Exhibit 99.3 of the Registrant's Form 8-K filed September 30, 1999, File No. 0-20743.
10.9 Stock Purchase Agreement, dated September 24, 1996, between the Registrant, Immaculate Eagle, Inc.,Paul A. Covert,
Todd A. Thomann and Siimon, Inc., incorporated by reference to Exhibit 2.1 of the Registrant's Form 8-K filed
October 16, 1996, File No. 0-20743.
10.10 Loan and Security Agreement, dated December 1998, by and between Fleet Bank, N.A. and the Regisrant and TFM,
incorporated by reference to Exhibit 10.11 of the Registrant's Form 10-KSB filed April 1, 1999, File 0-20743.
10.11 Management and Consulting Agreement, dated June 17, 1998, between the Registrant and Great Lakes Capital,
incorporated by reference to Exhibit 10.17 of the Registrant's Form 10-Q filed August 14, 1999, File No. 0-20743.
10.12 Registration Rights Agreement, dated June 17, 1998, between the Registrant and Great Lakes Capital, LLC,
incorporated by reference to Exhibit 10.20 of the Registrant's Form 10-Q filed August 14, 1999, File No. 0-20743.
10.13 Voting and Standstill Agreement dated June 17, 1998, between the Registrant and Great Lakes Capital, LLC,
incorporated by reference to Exhibit 10.19 of the Registrant's Form 10-Q filed August 14, 1999, File No. 0-20743.
10.14 Commercial Lease Contract, dated May 1, 1998, between Liberty Property Limited Partnership and the Registrant.*
10.15 Commercial Lease Contract, dated September 18, 1998, between Quality Dairy Company and the Registrant *
11 Statement re: Computation of Earnings Per Share.
21 Subsidiaries of the Registrant. *
23 Consent of Ernst & Young LLP.
27 Financial Data Schedule (filed electronically only)
</TABLE>
* Filed herewith
AMENDED AND RESTATED
BYLAWS
OF
OPEN PLAN SYSTEMS, INC.
* * * * *
ARTICLE I
Offices and Records
A. Virginia Office. The principal office of the Corporation shall be located
within the Commonwealth of Virginia.
B. Other Offices. The Corporation may have such other offices, either within
or without the Commonwealth of Virginia, as the Board of Directors may
designate or as the business of the Corporation may from time to time
require.
C. Books and Records. The books and records of the Corporation may be kept
within or without the Commonwealth of Virginia at such place or places as
may from time to time be designated by the Board of Directors.
ARTICLE II
Shareholders
A. Annual Meeting. The annual meeting of the shareholders of the Corporation
shall be held on the third Tuesday in May of each year at the principal
office of the Corporation, or at such other time or place as may be fixed
by resolution of the Board of Directors, or in the absence of action by the
Board of Directors, as may be fixed by the Chairman of the Board.
B. Place of Meeting. The Board of Directors or the Chairman of the Board, as
the case may be, may designate the place of meeting for any annual meeting
or for any special meeting of the shareholders called by the Board of
Directors or the Chairman of the Board. If no designation is so made, the
place of meeting shall be the principal office of the Corporation.
C. Notice of Meeting. Written or printed notice, stating the place, day and
hour of the meeting and the purpose or purposes for which the meeting is
called, shall be delivered by the Corporation not less than ten (10) days
nor more than sixty (60) days before the date of the meeting, either
personally or by mail, to each shareholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with postage thereon prepaid, addressed
to the shareholder at his address as it appears on the stock transfer books
of the Corporation. Such further notice shall be given as may be required
by law. Only such business shall be conducted at a special meeting of
shareholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Any previously scheduled meeting of the
shareholders may be postponed, and (unless the Articles of Incorporation
otherwise provides) any special meeting of the shareholders may be
cancelled, by resolution of the Board of Directors upon public notice given
prior to the date previously scheduled for such meeting of shareholders.
D. Quorum and Adjournment. Except as otherwise provided by law or by the
Articles of Incorporation, the holders of a majority of the outstanding
shares of the Corporation entitled to vote generally in the election of
directors, represented in person or by proxy, shall constitute a quorum at
a meeting of shareholders, except that when specified business is to be
voted on by a class or series of stock voting as a separate voting group,
the holders of a majority of the shares of such class or series shall
constitute a quorum of such class or series for the transaction of such
business. The Chairman of the meeting or a majority of the shares so
represented may adjourn the meeting from time to time, whether or not there
is such a quorum. No notice of the time and place of adjourned meetings
need be given except as required by law. The shareholders present at a duly
called meeting at which a quorum is present may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
E. Proxies. At all meetings of shareholders, a shareholder may vote by proxy
executed in writing (or in such manner prescribed by the Virginia Stock
Corporation Act) by the shareholder, or by his duly authorized attorney in
fact.
F. Notice of Shareholder Business and Nominations.
1. Annual Meetings of Shareholders.
(a) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (1) pursuant
to the Corporation's notice of meeting, (2) by or at the direction of the
Board of Directors or (3) by any shareholder of the Corporation who was a
shareholder of record at the time of giving of notice provided for in this
Bylaw, who is entitled to vote at the meeting and who complies with the
notice procedures set forth in this Bylaw.
(b) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (3) of paragraph 1(a) of
this Bylaw, the shareholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for shareholder action. To be timely, a
shareholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business
on the 60th day nor earlier than the close of business on the 90th day
prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
more than 30 days before or more than 60 days after such anniversary date,
notice by the shareholder to be timely must be so delivered not earlier
than the close of business on the 90th day prior to such annual meeting and
not later than the close of business on the later of the 60th day prior to
such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the Corporation.
In no event shall the public announcement of an adjournment of an annual
meeting commence a new time period for the giving of a shareholder's notice
as described above. Such shareholder's notice shall set forth (1) as to
each person whom the shareholder proposes to nominate for election or
reelection as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and Rule 14a-11 thereunder (including such
person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); (2) as to any other business that
the shareholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in such
business of such shareholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (3) as to the shareholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such shareholder, as they
appear on the Corporation's books, and of such beneficial owner and (ii)
the class or series and number of shares of the Corporation which are owned
beneficially and of record by such shareholder and such beneficial owner.
(c) Notwithstanding anything in the second sentence of paragraph 1(b) of
this Bylaw to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Corporation is increased and there
is no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at
least 70 days prior to the first anniversary of the preceding year's annual
meeting, a shareholder's notice required by this Bylaw shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public
announcement is first made by the Corporation.
2. Special Meetings of Shareholders. Only such business shall be conducted
at a special meeting of shareholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special
meeting of shareholders at which directors are to be elected pursuant to
the Corporation's notice of meeting (a) by or at the direction of the Board
of Directors or (b) provided that the Board of Directors has determined
that directors shall be elected at such meeting, by any shareholder of the
Corporation who is a shareholder of record at the time of giving of notice
provided for in this Bylaw, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this Bylaw. In the
event the Corporation calls a special meeting of shareholders for the
purpose of electing one or more directors to the Board of Directors, any
such shareholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the Corporation's notice of
meeting, if the shareholder's notice required by paragraph 1(b) of this
Bylaw shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the close of business on the
90th day prior to such special meeting and not later than the close of
business on the later of the 60th day prior to such special meeting or the
10th day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the Board
of Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time
period for the giving of a shareholder's notice as described above.
3. General.
(a) Only such persons who are nominated in accordance with the procedures set
forth in this Bylaw shall be eligible to serve as directors and only such
business shall be conducted at a meeting of shareholders as shall have been
brought before the meeting in accordance with the procedures set forth in
this Bylaw. Except as otherwise provided by law, the Articles of
Incorporation or these Bylaws, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed
to be brought before the meeting was made or proposed, as the case may be,
in accordance with the procedures set forth in this Bylaw and, if any
proposed nomination or business is not in compliance with this Bylaw, to
declare that such defective proposal or nomination shall be disregarded.
(b) For purposes of this Bylaw, "public announcement" shall mean disclosure in
a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
(c) Notwithstanding the foregoing provisions of this Bylaw, a shareholder shall
also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in
this Bylaw. Nothing in this Bylaw shall be deemed to affect any rights (i)
of shareholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of
the holders of any class or series of Preferred Stock to elect directors
under specified circumstances.
G. Inspectors of Elections; Opening and Closing the Polls. The Board of
Directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation
in other capacities, including, without limitation, as officers, employees,
agents or representatives, to act at the meetings of shareholders and make
a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate has been appointed to act or is able to act at a
meeting of shareholders, the Chairman of the meeting shall appoint one or
more inspectors to act at the meeting. Each inspector, before discharging
his or her duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of
his ability. The inspectors shall have the duties prescribed by law.
The Chairman of the meeting shall fix and announce at the meeting the date
and time of the opening and the closing of the polls for each matter upon
which the shareholders will vote at a meeting.
ARTICLE III
Board of Directors
A. Regular Meetings. A regular meeting of the Board of Directors shall be held
without other notice than this Bylaw promptly after, and at the same place
as, the Annual Meeting of Shareholders. The Board of Directors may, by
resolution, provide the time and place for the holding of additional
regular meetings without other notice than such resolution.
B. Special Meetings. Special meetings of the Board of Directors shall be
called at the request of the Chairman of the Board, the Chief Executive
Officer or a majority of the Board of Directors then in office. The person
or persons authorized to call special meetings of the Board of Directors
may fix the place and time of the meetings.
C. Notice. Notice of any special meeting of directors shall be given to each
director at his business or residence in writing by hand delivery,
first-class or overnight mail or courier service, telegram or facsimile
transmission, or orally by telephone. If mailed by first-class mail, such
notice shall be deemed adequately delivered when deposited in the United
States mail so addressed, with postage thereon prepaid, at least five (5)
days before such meeting. If by telegram, overnight mail or courier
service, such notice shall be deemed adequately delivered when the telegram
is delivered to the telegraph company or the notice is delivered to the
overnight mail or courier service company at least twenty-four (24) hours
before such meeting. If by facsimile transmission, such notice shall be
deemed adequately delivered when the notice is transmitted at least twelve
(12) hours before such meeting. If by telephone or by hand delivery, the
notice shall be given at least twelve (12) hours prior to the time set for
the meeting. Neither the business to be transacted at, nor the purpose of,
any regular or special meeting of the Board of Directors need be specified
in the notice of such meeting, except for amendments to these Bylaws, as
provided under Article VIII of these Bylaws. A meeting may be held at any
time without notice if all the directors are present or if those not
present waive notice of the meeting in accordance with paragraph D of
Article VI of these Bylaws.
D. Action by Consent of Board of Directors. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board or
committee.
E. Conference Telephone Meetings. Members of the Board of Directors, or any
committee thereof, may participate in a meeting of the Board of Directors
or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
F. Quorum. Subject to the provisions of Article V of the Articles of
Incorporation relating to newly created directorships and vacancies, a
whole number of directors equal to at least a majority of the total number
of directors which the Corporation would have if there were no vacancies
(the "Whole Board") shall constitute a quorum for the transaction of
business, but if at any meeting of the Board of Directors there shall be
less than a quorum present, a majority of the directors present may adjourn
the meeting from time to time without further notice. The act of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. The directors present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a
quorum.
G. Executive and Other Committees. The Board of Directors may, by resolution
adopted by a majority of the Whole Board, designate an Executive Committee
to exercise, subject to applicable provisions of law, all the powers of the
Board in the management of the business and affairs of the Corporation when
the Board is not in session and may, by resolution similarly adopted,
designate one or more other committees. The Executive Committee and each
such other committee shall consist of two or more directors of the
Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. Any such committee, other than the
Executive Committee (the powers of which are expressly provided for
herein), may to the extent permitted by law exercise such powers and shall
have such responsibilities as shall be specified in the designating
resolution. In the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member. Each
committee shall keep written minutes of its proceedings and shall report
such proceedings to the Board when required.
A majority of any committee may determine its action and fix the time and
place of its meetings, unless the Board shall otherwise provide. Notice of
such meetings shall be given to each member of the committee in the manner
provided for in Paragraph C of this Article. The Board shall have power at
any time to fill vacancies in, to change the membership of, or to dissolve
any such committee. Nothing herein shall be deemed to prevent the Board
from appointing one or more committees consisting in whole or in part of
persons who are not directors of the Corporation; provided, however, that
no such committee shall have or may exercise any authority of the Board.
H. Records. The Board of Directors shall cause to be kept a record containing
the minutes of the proceedings of the meetings of the Board and of the
shareholders, appropriate stock books and registers and such books of
records and accounts as may be necessary for the proper conduct of the
business of the Corporation.
ARTICLE IV
Officers
A. Elected Officers. The elected officers of the Corporation may be a chairman
of the Board, a Chief Executive Officer, a President, a Chief Financial
Officer, a Secretary, a Treasurer, and such other officers (including,
without limitation, a Chief Accounting Officer) as the Board of Directors
from time to time may deem proper. The Chairman of the Board shall be
chosen from among the directors. All officers elected by the Board of
Directors shall each have such powers and duties as generally pertain to
their respective offices, subject to the specific provisions of this
Article IV. Such officers shall also have such powers and duties as from
time to time may be conferred by the Board of Directors or by any committee
thereof. The Board or the Executive Committee thereof may from time to time
elect, or the Chairman of the Board or the Chief Executive Officer may
appoint, such other officers (including one or more Vice Presidents,
Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers, and
Assistant Controllers) and such agents, as may be necessary or desirable
for the conduct of the business of the Corporation. Such other officers and
agents shall have such duties and shall hold their offices for such terms
as shall be provided in these Bylaws or as may be prescribed by the Board
or the Executive Committee thereof or by the Chairman of the Board or the
Chief Executive Officer, as the case may be.
B. Election and Term of Office. The elected officers of the Corporation shall
be elected annually by the Board of Directors at the regular meeting of the
Board of Directors held after the annual meeting of the shareholders. If
the election of officers shall not be held at such meeting, such election
shall be held as soon thereafter as convenient. Each officer shall hold
office until his successor shall have been duly elected and shall have
qualified or until his death or until he shall resign, but any officer may
be removed from office in accordance with paragraph J of this Article IV.
C. Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the shareholders and of the Board of Directors. The Chairman of
the Board shall perform all duties incidental to his office which may be
required by law and all such other duties as are properly required of him
by the Board of Directors. He shall make reports to the Board of Directors
and the shareholders, and shall see that all orders and resolutions of the
Board of Directors and of any committee thereof are carried into effect.
The Chairman of the Board may also serve in other offices of the
Corporation if so elected by the Board. In the absence or inability to act
of the Chairman of the Board, the Board may appoint an acting Chairman of
the Board to preside at such meetings of shareholders and the Board of
Directors, and to carry out the duties of the Chairman of the Board.
D. Chief Executive Officer. The Chief Executive Officer shall act in a general
executive capacity, establish the policies and supervise the affairs of the
Corporation, and perform all duties incidental to his office which may be
required by law and all such other duties as are properly required of him
by the Board of Directors. He shall make reports to the Board of Directors
and shareholders, and shall see that all orders and resolutions of the
Board of Directors and of any committee thereof are carried into effect.
E. President. The President shall be responsible for the general management of
the business and affairs of the Corporation and shall perform all duties
incidental to his office which may be required by law and all such other
duties as are properly required of him by the Board of Directors and Chief
Executive Officer. He shall make reports to the Board of Directors and
shall assist the Chief Executive Officer in the general supervision of the
Corporation's policies and affairs.
F. Vice Presidents. Each Vice President shall have such powers and shall
perform such duties as shall be assigned by the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or the President.
G. Chief Financial Officer. The Chief Financial Officer shall be a Vice
President and act in an executive financial capacity. He shall assist the
Chairman of the Board, the Chief Executive Officer and the President in the
general supervision of the Corporation's financial policies and affairs.
H. Treasurer. The Treasurer shall exercise general supervision over the
receipt, custody and disbursement of corporate funds. The Treasurer shall
cause the funds of the Corporation to be deposited in such banks as may be
authorized by the Board of Directors, or in such banks as may be designated
as depositories in the manner provided by resolution of the Board of
Directors. He shall have such further powers and duties and shall be
subject to such directions as may be granted or imposed upon him from time
to time by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer or the President.
I. Secretary. The Secretary shall keep or cause to be kept in one or more
books provided for that purpose, the minutes of all meetings of the Board,
the committees of the Board and the shareholders; he shall see that all
notices are duly given in accordance with the provisions of these Bylaws
and as required by law; he shall be custodian of the records and the seal
of the Corporation and affix and attest the seal to all stock certificates
of the Corporation (unless the seal of the Corporation on such certificates
shall be a facsimile, as hereinafter provided) and affix and attest the
seal to all other documents to be executed on behalf of the Corporation
under its seal; and he shall see that the books, reports, statements,
certificates and other documents and records required by law to be kept and
filed are properly kept and filed; and in general, he shall perform all the
duties incident to the office of Secretary and such other duties as from
time to time may be assigned to him by the Board of Directors, the Chairman
of the Board, the Chief Executive Officer or the President.
J. Removal. Any officer elected, or agent appointed, by the Board of Directors
or the Executive Committee thereof may be removed by the affirmative vote
of a majority of the Whole Board whenever, in their judgment, the best
interests of the Corporation would be served thereby. Any officer or agent
appointed by the Chairman of the Board or the Chief Executive Officer may
be removed by him whenever, in his judgment, the best interests of the
Corporation would be served thereby. No elected officer shall have any
contractual rights against the Corporation for compensation by virtue of
such election beyond the date of the election of his successor, his death,
his resignation or his removal, whichever event shall first occur, except
as otherwise provided in an employment contract or under an employee
deferred compensation plan.
K. Vacancies. A newly created elected office and a vacancy in any elected
office because of death, resignation, or removal may be filled by the Board
of Directors for the unexpired portion of the term at any meeting of the
Board of Directors. Any vacancy in an office appointed by the Chairman of
the Board or the Chief Executive Officer because of death, resignation, or
removal may be filled by the Board of Directors, the Executive Committee
thereof, the Chairman of the Board or the Chief Executive Officer.
ARTICLE V
Stock Certificates and Transfers
A. Stock Certificates and Transfers. The interest of each shareholder of the
Corporation shall be evidenced by certificates for shares of stock in such
form as the appropriate officers of the Corporation may from time to time
prescribe. The shares of the stock of the Corporation shall be transferred
on the books of the Corporation by the holder thereof in person or by his
attorney, upon surrender for cancellation of certificates for at least the
same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or its agents may
reasonably require.
The certificates of stock shall be signed, countersigned and registered in
such manner as the Board of Directors may by resolution prescribe, which
resolution may permit all or any of the signatures on such certificates to
be in facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate has
ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date
of issue.
B. Lost, Stolen or Destroyed Certificates. No certificate for shares of stock
in the Corporation shall be issued in place of any certificate alleged to
have been lost, destroyed or stolen, except on production of such evidence
of such loss, destruction or theft and on delivery to the Corporation of a
bond of indemnity in such amount, upon such terms and secured by such
surety, as the Board of Directors or any financial officer may in its or
his discretion require.
ARTICLE VI
Miscellaneous Provisions
A. Fiscal Year. The fiscal year of the Corporation shall begin on the first
day of January and end on the thirty-first day of December of each year.
B. Dividends. The Board of Directors may from time to time declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and
upon the terms and conditions provided by law and the Articles of
Incorporation.
C. Seal. The corporate seal shall have inscribed thereon the word "Seal," the
year of incorporation and around the margin thereof the words "Open Plan
Systems, Inc."
D. Waiver of Notice. Whenever any notice is required to be given to any
shareholder or director of the Corporation under the provisions of the
Virginia Stock Corporation Act or these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice. Neither the business to be transacted at, nor the
purpose of, any annual or special meeting of the shareholders or the Board
of Directors or committee thereof need be specified in any waiver of notice
of such meeting.
E. Audits. The accounts, books and records of the Corporation shall be audited
upon the conclusion of each fiscal year by an independent certified public
accountant selected by the Board of Directors, and it shall be the duty of
the Board of Directors to cause such audit to be done annually.
F. Resignations. Any director or any officer, whether elected or appointed,
may resign at any time by giving written notice of such resignation to the
Chairman of the Board, the President or the Secretary, and such resignation
shall be deemed to be effective as of the close of business on the date
said notice is received by the Chairman of the Board, the President or the
Secretary, or at such later time as is specified therein. No formal action
shall be required of the Board of Directors or the shareholders to make any
such resignation effective.
G. Use of Masculine. Whenever a masculine term is used in these Bylaws, it
shall be deemed to include the feminine.
ARTICLE VII
Contracts, Proxies, Etc.
A. Contracts. Except as otherwise required by law, the Articles of
Incorporation or these Bylaws, any contracts or other instruments may be
executed and delivered in the name and on the behalf of the Corporation by
such officer or officers of the Corporation as the Board of Directors may
from time to time direct. Such authority may be general or confined to
specific instances as the Board may determine. The Chairman of the Board,
the Chief Executive Officer, the President or any Vice President may
execute bonds, contracts, deeds, leases and other instruments to be made or
executed for or on behalf of the Corporation. Subject to any restrictions
imposed by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer, the President or any Vice President of the Corporation
may delegate contractual powers to others under his jurisdiction, it being
understood, however, that any such delegation of power shall not relieve
such officer of responsibility with respect to the exercise of such
delegated power.
B. Proxies. Unless otherwise provided by resolution adopted by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer, the
President or any Vice President may from time to time appoint an attorney
or attorneys or agent or agents of the Corporation, in the name and on
behalf of the Corporation, to cast the votes which the Corporation may be
entitled to cast as the holder of stock or other securities in any other
corporation, any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of
such other corporation, or to consent in writing, in the name of the
Corporation as such holder, to any action by such other corporation, and
may instruct the person or persons so appointed as to the manner of casting
such votes or giving such consent, and may execute or cause to be executed
in the name and on behalf of the Corporation and under its corporate seal
or otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
ARTICLE VIII
Amendments
Subject to the provisions of the Articles of Incorporation, these Bylaws
may be altered, amended, or repealed at any meeting of the Board of
Directors or of the shareholders, provided notice of the proposed change
was given in the notice of the meeting and, in the case of a meeting of the
Board of Directors, in a notice given not less than two days prior to the
meeting.
(As revised June 15, 1998) THIS DEED OF LEASE is made by and between LIBERTY
PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership ("LANDLORD")
with its address at 12 South Third Street, Richmond, VA 23219 and OPEN PLAN
SYSTEMS, INC., a Virginia corporation, ("TENANT") with its address at 4263-99
Carolina Avenue, Richmond, VA 23222, and is dated as of the date on which this
lease has been fully executed by Landlord and Tenant.
1. Summary of Terms and Certain Definitions.
(a) "PREMISES" (2): Approximate rentable square feet: 180,000
(b) "BUILDING" (2): Approximate rentable square feet: 180,000 Address: 4263-99
Carolina Avenue Richmond,Virginia 23222
(c) "TERM" (5): Fifty-one (51) months.
(i) "COMMENCEMENT DATE": May 1, 1998
(ii) "EXPIRATION DATE": July 31, 2002
(d) Minimum Rent (6) & Operating Expenses (7)
(i) "MINIMUM ANNUAL RENT": $381,600.00 (Three Hundred Eighty-one Thousand Six
Hundred and 00/100 Dollars), payable in monthly installments of $31,800.00
(Thirty-one Thousand Eight Hundred and 00/100 Dollars), increased as follows:
Lease Year Annual Monthly
08/01/99-07/31/2002 $404,496.00 $33,708.00
(ii) Estimated "ANNUAL OPERATING EXPENSES: Not applicable (gross lease).
(e) "PROPORTIONATE SHARE" (7(a)): 100.00% (Ratio of approximate rentable square
feet in the Premises to approximate rentable square feet in the Building)
(f) "USE" (4): Warehousing and refinishing of office partitions.
(g) "SECURITY DEPOSIT" (28): $16,500.00 (deposited with original lease).
(h) CONTENTS: This lease consists of the Index, pages 1 through 11 containing
Sections 1 through 28 and the following, all of which are attached hereto and
made a part of this lease:
Rider with Sections 29 and 30
Exhibits: "A" - Plan showing Premises "C" - Building Rules
"B" - Commencement Certificate Form "D" - Estoppel Certificate Form
2. Premises. Landlord hereby leases. to Tenant and Tenant hereby leases from
Landlord the Premises as shown on attached Exhibit "A" within the Building (the
' ding and the lot on which it is located, the PROPERTY"), together with the
nonexclusive right with Landlord and other occupants of the Building to use all
areas and facilities provided by Landlord for the use of all tenants in the
Property including any driveways, sidewalks and parking, loading and landscaped
areas (the "COMMON AREAS")
3. Acceptance of Premises. Tenant has examined and knows the condition of the
Property, the zoning, streets, sidewalks, parking areas, subs and access ways
adjoining it, visible easements, any surface conditions and the present uses,
and Tenant accepts them in the condition in which they now are, without relying
on any representation, covenant or warranty by Landlord Tenant and its agents
shall have the right, at Tenant's own risk expense and responsibility, at all
reasonable times prior to the Commencement Date, to enter the Premises for the
purpose of taking measurements and installing its furnishings and equipment-,
provided that the Premises are vacant and Tenant obtains Landlords prior written
consent.
4. Use: Compliance.
(a) Permitted Use. Tenant shall occupy and use the Premises for and only for the
Use specified in Section 1(f) above and in such a manner as is lawful, reputable
and will not create any nuisance or otherwise -interfere with any other tenant's
normal options or the management of the Building. Without limiting the
foregoing. such Use shall exclude any use that would cause the Premises or the
Property to be deemed a "place of public accommodation" under the Americans with
Disabilities Act (the "ADA") as further described in the Building Rules (defined
below). All Common Areas shall be subject to Landlord's exclusive control and
management at all times. Tenant shall not use or permit the use of any portion
of the Property for outdoor storage or installations outside of the Premises nor
for any use that would interfere with any other person's use of any portion of
the Property outside of the Premises.
(b) Compliance. Landlord represents that, as of the date of this lease, there is
no action required with respect to the Premises or Common Areas under any laws
(including Title III of the ADA), ordinances, notices, orders, rules,
regulations and requirements applicable to the Premises or to the Common Areas.
From and after the Commencement Date, Tenant shall comply promptly, at its sole
expense, (including making any alterations or improvements) with all laws
(including the ADA). ordinances, notices, orders, rules, regulations and
requirements regulating the Property during the Term which impose any duty upon
Landlord or Tenant with respect to Tenant's use, occupancy or alteration of, or
Tenant's installations in or upon, the Property including the Premises, (as the
same may be amended, the "LAWS AND REQUIREMENTS") and the building rules
attached as Exhibit "C", as' amended by Landlord from time to time (the
"BUILDING RULES"). Provided, however, that Tenant shall not be required to
comply with the Laws and Requirements with respect to the footings, foundations,
structural steel columns and girders forming a part of the Property unless the
need for such compliance arises out of Tenant's use, occupancy or alteration of
the Property, or by any act or omission of Tenant or any employees, agents,
contractors, licensees or invitees ("AGENTS") of Tenant. With respect to
Tenant's obligations as to the Property, other than the Premises, at Landlord's
option and at Tenant's expense, Landlord may comply with any repair, replacement
or other construction requirements of the Laws and Requirements and Tenant shall
pay to Landlord all costs thereof as additional rent.
(c) Environmental. Tenant shall comply, at its sole expense, with all Laws and
Requirements as set forth above. all manufacturers' instructions and all
requirements of insurers relating to the treatment, production, storage,
handling, transfer, processing, transporting, use, disposal and release of
hazardous substances, hazardous mixtures, chemicals, pollutants, petroleum
products, toxic or radioactive matter (the "RESTRICTED ACTIVITIES"). Tenant
shall deliver to Landlord copies of all Material Safety Data Sheets or other
written information prepared by manufacturers, importers or suppliers of any
chemical and all notices, filings, permits and any other written communications
from or to Tenant and any entity regulating any Restricted Activities.
(d) Notice. If at any time during or after the Term, Tenant becomes aware of any
inquiry, investigation or proceeding regarding the Restricted Activities or
becomes aware of any claims, actions of investigations regarding the ADA, Tenant
shall give Landlord written notice, within 5 days after first learning thereof,
providing all available information and copies of any notices.
5. Term. The Term of this lease shall commence on the Commencement Date and
shall end at 11:59 p. m. on the last day of the Term (the "EXPIRATION DATE"),
without the necessity for notice from either party, unless sooner terminated in
accordance with the terms hereof. At Landlord's request, Tenant shall confirm
the Commencement Date and Expiration Date by executing a lease commencement
certificate in the form attached as Exhibit "B".
6. Minimum Annual Rent. Tenant agrees to pay to Landlord the Minimum Annual Rent
in equal monthly installments in the amount set forth in Section 1(d) (as
increased at the beginning of each lease year as set forth in Section 1(d)), in
advance, on the first day of each calendar month during the Term, without
notice, demand or setoff, at Landlord's address designated at the beginning of
this lease unless Landlord designates otherwise; provided that rent for the
first full month shall be paid at the signing of this lease. If the Commencement
Date falls on a day other than the first day of a calendar month, the tenant
shall be apportioned pro rata on a per diem basis for the period from the
Commencement Date until the first day of the following calendar month and shall
be paid on or before the Commencement Date. As used in this lease, the term
"lease year" means the period from the Commencement Date through the succeeding
12 full calendar months (including for the first lease year any partial month
from the Commencement Date until the first day of the first full calendar month)
and each successive 12 month period thereafter during the Term.
7. Operation of Property: Payment of Expenses.
(a) Payment of Operating Expenses. Tenant shall pay to Landlord the Annual
Operating Expenses in equal monthly installments in the amount set forth in
Section 1(d) (prorated for any partial month), from the Commencement Date and
continuing throughout the Term on the first day of each calendar month during
the Term, as additional rent, without notice, demand or setoff ;provided that
the monthly installment for the first full month shall be paid at the signing of
this lease. Landlord shall apply such payments to the operating expenses owed to
Landlord by Tenant pursuant to the following Sections 7(b)-(f). The amount of
the Annual Operating Expenses set forth in Section 1(d) represents Tenant's
Proportionate Share of the estimated operating expenses during the first
calendar year of the Term on an annualized basis; from time to, time Landlord
may adjust such estimated amount if the estimated operating expenses increase.
By April 30th of each year (and as soon as practical after the expiration or
termination of this lease or at any time in the event of a sale of the
Property), Landlord shall provide Tenant with a statement of the actual amount
of such expenses for the preceding calendar year or part thereof. Landlord or
Tenant shall pay to the other the amount of any deficiency or overpayment then
due from one to the other or, at Landlords option, Landlord may credit Tenant's
account for any overpayment. Tenant's obligation to pay the Annual Operating
Expenses pursuant to this Section 7 shall survive the expiration or termination
of this lease.
(b) Taxes and Other Impositions. Tenant shall pay prior to delinquency all
levies, taxes (including sales taxes and gross receipt taxes), assessments,
liens, license and permit fees, which are applicable to the Term, and which are
imposed by any authority or under any law, ordinance or regulation thereof, or
pursuant to any recorded covenants or agreements, and the reasonable cost of
contesting any of the foregoing (the "IMPOSITIONS") upon or with respect to the
Premises, or any improvements thereto, or directly upon this lease or the Rent
(defined in Section 7(f)) or amounts payable by any subtenants or other
occupants of the Premises, or against Landlord because of Landlords estate or
interest herein. Additionally, Tenant shall pay as aforesaid its Proportionate
Share of any Imposition which is not imposed upon the Premises as a separate
entity but which is imposed upon all or. part of the Property or upon the leases
or rents relating to the Property.
(i) Nothing herein contained shall be interpreted as requiring Tenant to pay any
income. excess profits or corporate capital stock tax imposed or assessed upon
Landlord, unless such tax or any similar tax is levied or assessed in lieu of
all or any part of any Imposition or an increase in any Imposition.
(ii) If it shall not be lawful for Tenant to reimburse Landlord for any of the
Impositions, the Minimum Annual Rent shall be increased by the amount of the
portion of such Imposition allocable to Tenant, unless prohibited by law.
(c) Insurance.
(i) Property. Landlord shall keep in effect, and Tenant shall pay to Landlord
its Proportionate Share of the cost of, insurance against loss or damage to the
Building or the Property by fire and such other casualties as may be included
within fire, extended coverage and special form insurance covering the full
replacement cost of the Building (but excluding coverage of Tenant's personal
property in, and any alterations by Tenant to, the Premises), and such other
insurance as Landlord may reasonably deem appropriate or as may be required from
time-to-time by any mortgagee.
(ii) Liability. Tenant, at its own expense, shall keep in effect comprehensive
general public liability insurance with respect to the Premises and the
Property, including contractual liability insurance, with such limits of
liability for bodily injury (including death) and property damage as reasonably
may be required by Landlord from time-to-time, but not less than a combined
single limit of $1,000,000 per occurrence and a general aggregate limit of not
less than $3,000,000 (which aggregate limit shall apply separately to each of
Tenant's locations if more than the Premises); however, such limits shall not
limit the liability of Tenant hereunder. The policy of comprehensive general
public liability insurance also shall name Landlord and Landlord's agent as
insured parties with respect to the Premises, shall be written on an
"occurrence" basis and not on a "claims made" basis, shall provide that it is
primary with respect to any policies carried by Landlord and that any coverage
carried by Landlord shall be excess insurance, shall provide that it shall not
be cancelable or reduced without at least 30 days prior written notice to
Landlord and shall be issued in form satisfactory to Landlord. The insurer shall
be a responsible insurance carrier which is authorized to issue such insurance
and licensed to do business in the state in which the Property is located and
which has at all times during the Term a rating of no less than A V11 in the
most current edition of Best's Insurance Reports. Tenant shall deliver to
Landlord on or before the Commencement Date, and subsequently renewals of, a
certificate of insurance evidencing such coverage and the waiver of subrogation
described below.
(iii) Waiver of Subrogation. Landlord and Tenant shall have included in their
respective property insurance policies waivers of their respective insurers'
right of subrogation against the other party. If such a waiver should be
unobtainable or unenforceable, then such policies of insurance shall state
expressly that such policies shall not be invalidated if before a casualty, the
insured waives the right of recovery against any party responsible for a
casualty covered by the policy.
(iv) Increase of Premiums. Tenant agrees not to do anything or fail to do
anything which will increase the cost of Landlords insurance or which will
prevent Landlord from procuring policies (including public liability) from
companies and in a form satisfactory to Landlord. If any breach of the preceding
sentence by Tenant causes the rate of fire or other insurance to be increased,
Tenant shall pay the amount of such increase as additional rent promptly upon
being billed.
(d) Repairs and Maintenance; Common Areas; Building Management. Except as
specifically otherwise provided in this Section (d), Tenant at its sole expense
shall maintain the Premises in good order and condition, promptly make all
repairs necessary to maintain such condition, and repair any damage to the
Premises caused by Tenant or its contents. All repairs made by Tenant shall
utilize materials and equipment which are comparable to those originally used in
constructing the Building and Premises. When used in this Section (d), the term
"repairs" shall include replacements and renewals when necessary.
(i) Landlord, at its sole expense, shall make all necessary repairs to the
footings, foundations, structural steel columns and girders forming a part of
the Premises, provided that Landlord shall have no responsibility to make any
repair until Landlord receives written notice of the need for such repair. '
(ii) Landlord, at Tenant's sole expense, shall maintain and repair the HVAC
systems appurtenant to the Premises.
(iii) Landlord shall make all necessary repairs to the roof, exterior portions
of the Premises and the Building, utility and communications lines, equipment
and facilities in the Building, which serve more than one tenant, and to the
Common Areas, the cost of which shall be an operating expense of which Tenant
shall pay its Proportionate Share, provided that Landlord shall have no
responsibility to make any repair until Landlord receives written notice of the
need for such repair. Landlord shall operate and manage the Property and shall
maintain all Common Areas and any paved areas appurtenant to the Property in a
clean and orderly condition. Landlord reserves the right to make alterations to
the Common Areas from time to time. Operating expenses also shall include (A)
all sums expended by Landlord for the supervision, maintenance, repair,
replacement and operation of the Common Areas (including the costs of utility
services), (B) any costs of building improvements made by Landlord to the
Property that are required by any governmental authority or for the purpose of
reducing operating expenses and (C) a management and administrative fee
applicable to the overall operation of the Property.
(iv) Notwithstanding anything herein to the contrary, repairs and replacements
to the Property including the Premises made necessary by Tenant's use, occupancy
or alteration of, or Tenant's installation in or upon the Property or by any act
or omission of Tenant or its Agents shall be made at the sole expense of Tenant
to the extent not covered by any applicable insurance proceeds paid to Landlord.
Tenant shall not bear the expense of any repairs or replacements to the Property
arising out of or caused by any other tenant's use, occupancy or alteration of,
or any other tenant's installation in or upon, the Property or by any act or
omission of any other tenant or any other tenant's Agents.
(e) Utility Charges. Tenant shall pay for water, sewer, gas, electricity, heat,
power, telephone and other communication services and any other utilities
supplied to or consumed in or on the Premises. Landlord shall not be responsible
or liable for any interruption in utility service, nor shall such interruption
affect the continuation or validity of this lease.
(f) Net lease. Except for the obligations of Landlord expressly set forth
herein, this lease is a "triple net lease" and Landlord shall receive the
Minimum Annual Rent as net income from the Premises, not diminished by any
expenses other than payments under any mortgages, and Landlord is not and shall
not be required to render any services of any kind to Tenant. The term "RENT" as
used in this lease means the Minimum Annual Rent, Annual Operating Expenses and
any other additional rent or sums payable by Tenant to Landlord pursuant to this
lease, all of which shall be deemed rent for purposes of Landlord's rights and
remedies with respect thereto. Tenant shall pay all Rent to Landlord within 30
days after Tenant is billed, unless otherwise provided in this lease, and
interest shall accrue on all sums due but unpaid
8. Signs. Except for signs which are located wholly within the interior of the
Premises and not visible from the exterior of the Premises, no signs shall be
placed on the Property without the prior written consent of Landlord. All signs
installed by Tenant shall be maintained by Tenant in good condition and Tenant
shall remove all such signs at the termination of this lease and shall repair
any damage caused by such installation, ex ice or removal.
9. Alterations and Fixtures
(a) Subject to Section 10, Tenant shall have the right to install its trade
fixtures in the Premises, provided that no such installation or removal thereof
shall affect any structural portion of the Property nor any utility lines,
communications lines, equipment or facilities in the Building serving any tenant
other than Tenant. At the expiration or termination of this lease and at the
option of Landlord or Tenant, Tenant shall remove such installations) and, in
the event of such removal, Tenant shall repair any damage caused by such
installation or removal; if Tenant, with Landlords written consent, elects not
to remove such installations) at the expiration or termination of this lease,
all such installations shall remain on the Property and become the property of
Landlord without payment by Landlord
(b) Except for non-structural changes which do not exceed $5000 in the
aggregate, Tenant shall not make or permit to be made any alterations to the
Premises without Landlord's prior written consent. Tenant shall pay the costs of
any required architectural/engineering reviews. In making any alterations, (i)
Tenant shall deliver to landlord the plans, specifications and necessary
permits, together with certificates evidencing that Tenant's contractors and
subcontractors have adequate insurance coverage naming Landlord and Landlord's
agent as additional insureds. at least 10 days prior to commencement thereof,
(ii) such alterations shall not impair the structural strength of the Building
or any other improvements or reduce the value of the Property or affect any
utility lines, communications lines, equipment or facilities in the Building
serving any tenant other than Tenant, (iii) Tenant shall comply with Section 10
and (iv) the occupants of the Building and of any adjoining property shall not
be disturbed thereby. All alterations to the Premises by Tenant shall be the
property of Tenant until the expiration or termination of this lease; at that
time all such alterations shall remain on the Property and become the property
of Landlord without payment by Landlord unless Landlord gives written notice to
Tenant to remove the same, in which event Tenant will remove such alterations
and repair any resulting damage. At Tenant's request prior to Tenant making any
alterations, Landlord shall notify Tenant in writing, whether Tenant is required
to remove such alterations at the expiration or termination of this lease.
10. Mechanics' Liens. Tenant shall pay promptly any contractors and material,
men who supply labor, work or materials to Tenant at the Property and shall take
all steps permitted by law in order to avoid the imposition of any mechanic's
lien upon all or any portion of the Property. Should any such lien or notice of
lien be filed for work performed. for Tenant other than by Landlord, Tenant
shall bond against or discharge the same within 5 days after Tenant has notice
that the lien or claim is filed regardless of the" validity of such lien of
claim. Nothing in this lease is intended to authorize Tenant to do or cause any
work to be done or materials to be supplied for the account of Landlord. all of
the same to be solely for Tenant's account and at Tenant's risk and expense.
Throughout this lease the term "mechanic's lien" is used to include any lien,
encumbrance or charge levied or imposed upon all or any portion of interest in
or income from the Property on account of any mechanic's, laborer's, material,
man's or construction lien or arising out of any debt or liability to or any
claim of any contractor, mechanic, supplier, material, man or laborer and shall
include any mechanic's notice of intention to file a lien given to Landlord or
Tenant, any stop order given to Landlord or Tenant, any notice of refusal to pay
naming Landlord or Tenant and any injunctive or equitable action brought by any
person claiming to be entitled to any mechanic's lien.
11. Landlord's Right of Entry. Tenant shall permit Landlord and its Agents to
enter the Premises at all reasonable times following reasonable notice (except
in the event of an emergency), for the purpose of inspection, maintenance or
making repairs. alterations or additions as well as to exhibit the Premises for
the purpose of sale or mortgage and, during the last 12 months of the Term, to
exhibit the Premises to any prospective tenant. Landlord will make reasonable
efforts not to inconvenience Tenant in exercising the foregoing rights, but
shall not be liable for any loss of occupation or quiet enjoyment thereby
occasioned.
12. Damage by Eire or Other Casualty.
(a) 1f the Premises or Building shall be damaged or destroyed by fire or other
casualty, Tenant promptly shall notify Landlord and Landlord, subject to the
conditions set forth in this Section 12, shall repair such damage and restore
the Premises to substantially the same condition in which they were immediately
prior to such damage or destruction, but not including the repair. restoration
or replacement of the fixtures or alterations installed by Tenant. Landlord
shall notify Tenant in writing, within 30 days after the date of the casualty,
if Landlord anticipates that the restoration will take more than 180 days from
the date of the casualty to complete: in such event, either Landlord or Tenant
may terminate this lease effective as of the date of casualty by giving written
notice to the other within 10 days after Landlord's notice. Further. if a
casualty occurs during the last 12 months of the Term or any extension thereof,
Landlord may cancel this lease unless Tenant has the right to extend the Term
for at least 3 more years and does so within 30 days after the date of the
casualty.
(b) Landlord shall maintain a 12 month rental coverage endorsement or other
comparable form of coverage as part of its fire, extended coverage and special
form insurance. Tenant will receive an abatement of: Minimum Annual Rent and
Annual Operating Expenses to the extent the Premises are rendered untenantable
as determined by the carrier providing the rental coverage endorsement.
13. Condemnation.
(a) Termination. If (i) all of the Premises are taken by a condemnation or
otherwise for any public or quasi-public use, (ii) any part of the Premises is
so taken and the remainder thereof is insufficient for the reasonable operation
oaf Tenant's business or (iii) any of the Property is so taken, and, in
Landlords opinion, it would be impractical or the condemnation proceeds are
insufficient to restore the remainder of the Property, then this lease shall
terminate and all unaccrued obligations hereunder shall cease as of the day
before possession is taken by the condemnor.
(b) Partial Taking. If there is a condemnation and this lease has not been
terminated pursuant to this Section, (i) Landlord shall restore the Building and
the improvements which are a part of the Premises to a condition and size as
nearly comparable as reasonably possible to the condition and size thereof
immediately prior to the date upon which the condemnor took possession and (ii)
the obligations of Landlord and Tenant shall be unaffected by such condemnation,
except that there shall be an equitable abatement of the Minimum Annual Rent
according to the rental value of the Premises before and after the date upon
which the condemnor took possession and/or the date Landlord completes such
restoration.
(c) Award. In the event of a condemnation affecting Tenant. Tenant shall have
the right to make a claim against the condemnor for moving expenses and business
dislocation damages to the extent that such claim does not reduce the sums
otherwise payable by the condemnor to Landlord Except as aforesaid and except as
set forth in (d) below, Tenant hereby assigns all claims against the condemnor
to Landlord
(d) Temporary Taking. No temporary taking of the Premises shall terminate this
lease or give Tenant any right to any rental abatement. Such a temporary taking
will be treated as if Tenant had sublet the Premises to the condemnor and had
assigned the proceeds of the subletting to Landlord to be applied on account of
Tenant's obligations hereunder. Any award for such a temporary taking during the
Term shall be applied first, to Landlord's costs of collection and, second, on
account of sums owing by Tenant. hereunder, and if such amounts applied on
account of sums owing by Tenant hereunder should exceed the entire amount owing
by Tenant for the remainder of the Term, the excess will be paid to Tenant.
14. Non-Abatement of Rent. Except as otherwise expressly provided as to damage
by fire or other casualty in Section 12(b) and as to condemnation in Section
13(b), there shall be no abatement or reduction of the Rent for any cause
whatsoever, and this lease shall not terminate, and Tenant shall not be entitled
to surrender the Premises.
15. Indemnification of Landlord. Subject to Sections 7(c)(iii) and 16, Tenant
will protect, indemnify and hold harmless Landlord and its Agents from and
against any and all claims, actions, damages, liability and expense (including
fees of attorneys, investigators and experts) in connection with loss of life,
personal injury or damage to property in or about the Premises or arising out of
the occupancy or use of the Premises by Tenant or its Agents or occasioned
wholly or in part by any act or omission of Tenant or its Agents, whether prior
to, during or after the Term, except to the extent such loss, injury or damage
was caused by the negligence of Landlord or its Agents. In case any action or
proceeding is brought against Landlord and/or its Agents by reason of the
foregoing, Tenant, at its expense, shall resist and defend such action or
proceeding, or cause the same to be resisted and defended by counsel (reasonably
acceptable to Landlord and its Agents) designated by the insurer whose policy
covers such occurrence or by counsel designated by Tenant and approved by
Landlord and its Agents. Tenant's obligations pursuant to this Section 15 shall
survive the expiration or termination of this lease.
16. Waiver of Claims. Landlord and Tenant each hereby waives all claims for
recovery against the other for any loss or damage which may be inflicted upon
the property of such party even if such loss or damage shall be brought about by
the fault or negligence of the other party or its Agents; provided, however,
that such waiver by Landlord shall not be effective with respect to any
liability of Tenant described in Sections 4(c) and 7(d)(iv).
17. Quiet Enjoyment. Landlord covenants that Tenant, upon performing all of its
covenants, agreements and conditions of this lease, shall have quiet and
peaceful possession of the Premises as against anyone claiming by or through
Landlord, subject, however, to the exceptions, reservations and conditions of
this lease.
18. Assignment and Subletting. (a) Limitation. Tenant shall not transfer this
lease, voluntarily or by operation of law, without the prior written consent of
Landlord which shall not be withheld unreasonably. However, Landlords consent
shall not be required in the event of any transfer by Tenant to an affiliate of
Tenant which is at least as creditworthy as Tenant as of the date of this lease
and provided Tenant delivers to Landlord the instrument described in Section
(c)(iii) below, together with a certification of such creditworthiness by Tenant
and such affiliate. Any transfer not in conformity with this Section 18 shall be
void at the option of Landlord, and Landlord may exercise any or all of its
rights under Section 23. A consent to one transfer shall not be deemed to be a
consent to any subsequent transfer. "Transfer" shall include any sublease,
assignment, license or concession agreement, change in ownership or control of
Tenant, mortgage or hypothecation of this lease or Tenant's s ink therein or in
all or a portion of the Premises.
(b) Offer to Landlord. Tenant acknowledges that the terms of this lease,
including the Minimum Annual Rent, have been based on the understanding that
Tenant physically shall occupy the Premises for the entire Term. Therefore, upon
Tenant's request to transfer all or a portion of the Premises, at the option of
Landlord, Tenant and Landlord shall execute an amendment to this lease removing
such space from the Premises, Tenant shall be relieved of any liability with
respect to such space and Landlord shall have the right to lease such space to
any party, including Tenants proposed transferee.
(c) Conditions. Notwithstanding the above, the following shall apply to any
transfer, with or without Landlords consent:
(i) As of the date of any transfer, Tenant shall not be in default under this
lease nor shall any act or omission have occurred which would constitute a
default with the giving of notice and/or the passage of time. .
(ii) No transfer shall relieve Tenant of its obligation to pay the Rent and to
perform all its other obligations hereunder.
The acceptance of Rent by Landlord from any person shall not be deemed to be a
waiver by Landlord of any provision of this lease or to be a consent to any
transfer.
(iii) Each transfer shall be by a written instrument in form and substance
satisfactory to Landlord which shall (A) include an assumption of liability by
any transferee of all Tenant's obligations and the transferee's ratification of
and agreement to be bound by all the provisions of this lease, (B) afford
Landlord the right of direct action against the transferee pursuant to the same
remedies as are available to Landlord against Tenant and (C) be executed by
Tenant and the transferee.
(iv) Tenant shall pay, within 10 days of receipt of an invoice which shall be no
less than $250, Landlord's reasonable attorneys" fees and costs in connection
with the review, processing and documentation of any transfer for which
Landlords consent is requested
19_ Subordination; Mortgagee's Rights.
(a) This lease shall be subordinate to any first mortgage or other primary
encumbrance now or hereafter affecting the Premises. Although the subordination
is self-operative, within 10 days after written request, Tenant shall execute
and deliver any further instruments confirming such subordination of this lease
and any further instruments of attornment that may be desired by any such
mortgagee or Landlord However, any mortgagee may at any time subordinate its
mortgage to this lease, without Tenant's consent, by giving written notice to
Tenant, and thereupon this lease shall be deemed prior to such mortgage without
regard to their respective dates of execution and delivery-, provided, however,
that such subordination shall not affect any mortgagee's right to condemnation
awards, casualty insurance proceeds, intervening liens or any right which shall
arise between the recording of such mortgage and the execution of this lease.
(b) It is understood and agreed that any mortgagee shall not be liable to Tenant
for any funds paid by Tenant to Landlord unless such funds actually have been
transferred to such mortgagee by Landlord
(c) Notwithstanding the provisions of Sections 12 and 13 above, Landlord's
obligation to restore the Premises after a casualty or condemnation shall be
subject to the consent and prior rights of Landlords first mortgagee.
20. Recording; Tenant's Certificate. Tenant shall not record this lease or a
memorandum thereof without Landlord's prior written consent. Within 10 days
after Landlord's written request from time to time:
(a) Tenant shall execute, acknowledge and deliver to Landlord a written
statement certifying the Commencement Date and Expiration Date of this lease,
that this lease is in full force and effect and has not been modified and
otherwise as set forth in the form of estoppel certificate attached as Exhibit
"D" or with such modifications as may be necessary to reflect accurately the
stated fads and/or such other certifications as r ie requested by a mortgagee or
purchaser. T at understands that its failure to execute such documents may cause
Landlord serious financial damage by causing the failure of a financing or sale
transaction.
(b) Tenant shall furnish to Landlord, Landlord's mortgagee, prospective
mortgagee or purchaser reasonably requested financial information
21. Surrender. Abandoned Property.
(a) Subject to the terms of Sections 9(b), 12(a) and 13(b), at the expiration or
termination of this lease, Tenant promptly shall yield up in the same condition,
order and repair in which they are required to be kept throughout the Term, the
Premises and all improvements thereto, and all fixtures and equipment servicing
the Building, ordinary wear and tear excepted
(b) Upon or prior to the expiration or termination of this lease. Tenant shall
remove any personal property from the Property. Any personal property remaining
thereafter shall be deemed conclusively to have been abandoned, and Landlord, at
Tenant's expense, may remove, store, sell or otherwise dispose of such property
in such manner as Landlord may see fit and/or Landlord may retain such property
as its property. If any part thereof shall be sold, then Landlord may receive
and retain the prods of such sale and apply the same, at its option, against the
expenses of the sale, the cost of moving and storage and any Rent due under this
lease.
(c) If Tenant, or any person claiming through Tenant, shall continue to occupy
the Premises after the expiration or termination of this lease or any renewal
thereof such occupancy shall be deemed to be under a month-to-month tenancy
under the same terms and conditions set forth in this lease, except that the
monthly installment of the Minimum Annual Rent during such continued occupancy
shall be double the amount applicable to the last month of the Term. Anything to
the contrary notwithstanding, any holding over by Tenant without Landlord's
prior written consent shall constitute a default hereunder and shall be subject
to all the remedies available to Landlord.
22. Curing Tenant's Defaults. If Tenant shall be in default in the performance
of any of its obligations hereunder, Landlord, without any obligation to do so,
in addition to any other rights it may have in law or equity, may elect to cure
such default on behalf of Tenant after written notice (except in the case of
emergency) to Tenant. Tenant shall reimburse Landlord upon demand for any sums
paid or costs incurred by Landlord in curing such default, including interest
thereon from the respective dates of Landlord's incurring such costs, which sums
and costs together with interest shall be deemed additional rent.
23. Defaults - Remedies.
(a) Defaults. It shall be an event of default:
(i) If Tenant does not pay in full when due any and all Rent;
(ii) If Tenant fails to observe and perform or otherwise breaches any other
provision of this lease:
(iii) If Tenant abandons the Premises, which shall be conclusively presumed if
the Premises remain unoccupied for more than 10 consecutive days, or removes or
attempts to remove Tenant's goods or property other than in the ordinary course
of business; or
(iv) If Tenant becomes insolvent or bankrupt in any sense or makes a general
assignment for the benefit of creditors or offers a settlement to creditors, or
if a petition in bankruptcy or for reorganization or for an arrangement with
creditors under any federal or state law is filed by or against Tenant, or a
bill in equity or other proceeding for the appointment of a receiver for any of
Tenant's assets is commenced, or if any of the real or personal property of
Tenant shall be levied upon; provided, however, that any proceeding brought by
anyone other than Landlord or Tenant under any bankruptcy, insolvency,
receivership or similar law shall not constitute a default until such proceeding
has continued unstayed for more than 60 consecutive days.
(b) Remedies. Then, and in any such event, Landlord shall have the following
rights:
(i) To charge a late payment fee equal to the greater of $100 or 5% of any
amount owed to Landlord pursuant to this lease which is not paid within 5 days
after the due date.
(ii) To enter and repossess the Premises, by breaking open locked doors if
necessary, and remove all persons and all or any property therefrom, by action
at law or otherwise, without being liable for prosecution or damages therefor,
and Landlord may at Landlords option, make alterations -Rd repairs in order to
relet the Premises and --let all or any parts) of the Premises for Tenant's
account. Tenant agrees to pa. ) Landlord on demand any deficiency that n. .
arise by reason of such reletting, In the event of reletting without termination
of this lease, Landlord may at any time thereafter elect to terminate this lease
for such previous breach.
(iii) To accelerate the whole or any part of the Rent for the balance of the
Term, and declare the same to be immediately due and payable
(iv) To terminate this lease and the Tern without any right on the part of
Tenant to save the forfeiture by payment of any sum due or by other performance
of any condition, term or covenant broken.
(c) Grace Period. Notwithstanding anything hereinabove stated, neither party
will exercise any available right because of any default of the other, except
those remedies contained in subsection (b)(i) of this Section, unless such party
shall have first given 10 days written notice thereof to the defaulting party,
and the defaulting party shall have failed to cure the default within such
period; provided, however, that: . (i) No such notice shall be required if
Tenant fails to comply with the provisions of Sections 10 or 20(a), in the case
of emergency as set forth in Section 22 or in the event of any default
enumerated in subsections (a)(iii) and (iv) of this Section (ii) Landlord shall
not be required to give such 10 days notice more than 2 times during any 12
month period (iii) If the default consists of something other than the failure
to pay money which cannot reasonably be cured within I O days, neither party
will exercise any right if the defaulting party begins to cure the default
within the 10 days and continues actively and diligently in good faith to
completely cure said default. (iv) Tenant agrees that any notice given by
Landlord pursuant to this Section which is served in compliance with Section 27
shall be adequate notice for the purpose of Landlords exercise of any available
remedies.
(d) Non-Waiver; Non-Exclusive. No waiver by Landlord of any breach by Tenant
shall be a waiver of any subsequent breach, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach. Efforts
by Landlord to mitigate the damages caused by Tenant's default shall not
constitute a waiver of Landlords right to recover damages hereunder. No right or
remedy herein conferred upon or reserved to Landlord is intended to be exclusive
of any other right or remedy provided herein or by law, but each shall be
cumulative and in addition to every other right or remedy given herein or now or
hereafter existing at law or in equity. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the total amount due Landlord
under this lease shall be deemed to be other than on account, nor shall any
endorsement or statement on any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlords right to recover the balance of Rent due, or Landlord's right to
pursue any other available remedy.
(e) Costs and Attorneys' Fees. If either party commences an action against the
other party arising out of or in connection with this lease, the prevailing
party shall be entitled to have and recover from the losing party attorneys'
fees, costs of suit, investigation expenses and discovery costs, including costs
of appeal.
24. Representations of Tenant. Tenant represents to Landlord and agrees that:
(a) The word "Tenant" as used herein includes the Tenant named above as well as
its successors and assigns, each of which shall be under the same obligations
and liabilities and each of which shall have the same rights, privileges and
powers as it would have possessed had it originally signed this lease as Tenant.
Each and every of the persons named above as Tenant shall be bound jointly and
severally by the terns, covenants and agreements contained herein. However, no
such rights, privileges or powers shall inure to the benefit of any assignee of
Tenant immediate or remote, unless Tenant has complied with the terms of Section
18 and the assignment to such assignee is permitted or has been approved in
writing by Landlord. Any notice required or permitted by the terms of this lease
may be given by or to any one of the persons named above as Tenant, and shall
have the same force and effect as if given by or to all thereof.
(b) If Tenant is a corporation, partnership or any other form of business
association or entity, Tenant is duly formed and in good standing, and has full
corporate or partnership power and authority, as the case may be, to enter into
this lease and has taken all corporate or partnership action, as the case may
be, necessary to carry out the transaction contemplated herein, so that when
executed, this lease constitutes a valid and binding obligation enforceable in
accordance with its terms. Tenant shall provide Landlord with corporate
resolutions or other proof in a form acceptable to Landlord, authorizing the
execution of this lease at the time of such execution.
25. Liability of Landlord. The word "Landlord" as used herein includes the
Landlord named above as well as its successors and assigns, each of which shall
have the same rights, remedies, powers, authorities and privileges as it would
have had it originally signed this lease as Landlord Any such person or entity.
whether or not named herein, shall have no liability hereunder after it ceases
to hold title to the Premises except for obligations already accrued (and, as to
any unapplied portion of Tenant's Security Deposit, Landlord shall be relieved
of all liability therefor upon transfer of such portion to its successor in
interest) and Tenant shall look solely to Landlords successor in interest for
the performance of the covenants and obligations of the Landlord hereunder which
thereafter shall accrue. Neither Landlord nor any principal of Landlord nor any
owner of the Property, whether disclosed or undisclosed, shall have any personal
liability with respect to any of the provisions of this lease or the Premises,
and if Landlord is in breach or default with respect to Landlord's obligations
under this lease or otherwise, Tenant shall look solely to the equity of
Landlord in the Property for the satisfaction of Tenant's claims.
Notwithstanding the foregoing, no mortgagee or ground lessor succeeding to the
interest of Landlord hereunder (either in terms of ownership or possessory
rights) shall be (a) liable for any previous act or omission of a prior
landlord, (b) subject to any rental offsets or defenses against a prior landlord
or (c) bound by any amendment of this lease made without its written consent, or
by payment by Tenant of Minimum Annual Rent in advance in excess of one monthly
installment.
26. Interpretation; Definitions.
(a) Captions. The captions in this lease are for convenience only and are not a
part of this lease and do not in any way define, limit, describe or amplify the
terms and provisions of this lease or the scope or intent thereof. -
(b) Entire Agreement. This lease represents the entire agreement between the
parties hereto and there are no collateral or oral agreements or understandings
between Landlord and Tenant with respect to the Premises or the Property. No
rights, easements or licenses are acquired in the Property or any land adjacent
to the Property by Tenant by implication or otherwise except as expressly set
forth in the provisions of this lease. This lease shall not be modified in any
manner except by an instrument in writing executed by the parties. The masculine
(or neuter) pronoun and the singular number shall include the masculine,
feminine and neuter genders and the singular and plural number. The word
"including" followed by any specific item(s) is deemed to refer to examples
rather than to be words of limitation. Both parties having participated fully
and equally in the negotiation and preparation of this lease, this lease shall
not be more strictly construed, nor any ambiguities in this lease resolved,
against either Landlord or Tenant.
(c) Covenants. Each covenant, agreement, obligation, term, condition or other
provision herein contained shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making the same, not
dependent on any other provision of this lease unless otherwise expressly
provided. All of the terms and conditions set forth in this lease shall apply
throughout the Term unless otherwise expressly set forth herein.
(d) Interest- Wherever interest is required to be paid hereunder, such interest
shall be at the highest rate permitted under law but not in excess of 15% per
annum.
(e) Severability; Governing Law. If any provisions of this lease shall be
declared unenforceable in any respect, such unenforceability shall not affect
any other provision of this lease, and each such provision shall be deemed to be
modified if possible, in such a manner as to render it enforceable and to
preserve to the extent possible the intent of the parties as set forth herein.
This lease shall be construed and enforced in accordance with the laws of the
state in which the Property is located.
(f) "Mortgage" and "Mortgagee." The word "mortgage" as used herein includes any
lien or encumbrance on the Premises or the Property or on any part of or
interest in or appurtenance to any of the foregoing, including without
limitation any ground rent or ground lease if Landlord's interest is or becomes
a leasehold estate. The word "mortgagee" as used herein includes the holder of
any mortgage, including any ground lessor if Landlord's interest is or becomes a
leasehold estate. Wherever any right is given to a mortgagee, that right may be
exercised on behalf of such mortgagee by any representative or servicing agent
of such mortgagee.
(g) "Person." The word "person" is used herein to include a natural person, a
partnership, a corporation. an association and any other form of business
association or entity.
(h) Proportionate Share. At any time or times, upon request of Landlord or of
any tenant of the Building. the method for allocating Tenant's Proportionate
Share of any Impositions, cost, charge, rent, expense or payment then or
thereafter payable shall be redetermined by an independent qualified expert. The
cost of such redetermination shall be borne by the tenants of the Building in
the same proportion as that determined by such expert for reallocation of said
relevant sum: except that if such redetermination is requested by a tenant, the
cost thereof shall be borne entirely by such tenant if the prop made share of
said relevant sum allocable to such tenant as the result of such redetermination
shall not vary by at least 5% from the amount which would have been allocable to
such tenant in accordance with the percentage based on square fogy area
27. Notices. Any notice or other communication under this lease shall be in
writing and addressed to Landlord or Tenant at their respective addresses
specified at the beginning of this lease, except that after the Commencement
Date Tenant's address shall be at the Premises, (or to such other address as
either tray designate by notice to the other) with a copy to any mortgagee or
other party designated by Landlord. Each notice or other communication shall be
deemed given if sent by prepaid overnight delivery service or by certified mail,
return receipt requested, postage prepaid or in any other manner, with delivery
in any case evidenced by a receipt, and shall be deemed received on the day of
actual receipt by the intended recipient or on the business day delivery is
refused The giving of notice by Landlord's attorneys, representatives and agents
under this Section shall be deemed to be the acts of Landlord: however, the
foregoing provisions governing the date on which a notice is deemed to have been
received shall mean and refer to the date on which a party to this lease, and
not its counsel or other recipient to which a copy of the notice may be sent, is
deemed to have received the notice.
28. Security Deposit. At the time of signing this lease, Tenant shall deposit
with Landlord the Security Deposit to be retained by Landlord as cash security
for the faithful performance and observance by Tenant of the provisions of this
lease. Tenant shall not be entitled to any interest whatever on the Security
Deposit Landlord shall have the right to commingle the Security Deposit with its
other funds. Landlord may use the whole or any part of the Security Deposit for
the payment of any amount as to which Tenant is in default hereunder or to
compensate Landlord for any loss or damage it may suffer by reason of Tenant's
default under this lease. If Landlord uses all or any portion of the Security
Deposit as herein provided, within 10 days after written demand therefor, Tenant
shall pay Landlord cash in amount equal to that portion of the Security Deposit
used by Landlord. If Tenant shall comply fully and faithfully with all of the
provisions of this lease, the Security Deposit shall be returned to Tenant after
the Expiration Date and surrender of the Premises to Landlord
IN WITNESS WHEREOF and in consideration of the mutual entry into this lease and
for other good and valuable consideration, and intending to be legally bound.
Landlord and Tenant have executed this lease.
Date signed:
Date signed
At est: Name: Title:
n
Landlord:
LIBERTY PROPERTY LIMITED PARTNERSHIP
By. Liberty Property Trust, Sole General Partner
By:
Tenant:
Name: -1. L: Title: c J . D.
u
By: Name: Title
<PAGE>
RIDER
29. Fairgrounds Expenses. If any assessment or other charge for any of the
operating expenses described in Section 7 is attributable to more than the
Property, Tenant's proportionate Share with respect to such expenses shall mean
the ratio of the approximate rentable square feet in the Premises to the
approximate rentable square feet of all the building to which any such expenses
are attributable.
RIDER TO 7(c)(ii) - Liability. Delete the words "a general aggregate limit of
not less than $3,000,000" and insert "a general aggregrate limit of not less
than $2,000,000".
RIDER TO 7(f) - Net lease. This section is deleted in its entirety.
Rider to Section 7 (d) Maintenance:
Landlord, at Landlord's expense, maintain in good order, the fire supply water
system to, and including the sprinkler shut-off valves serving the leased
premises.
<PAGE>
EXHIBIT "C"
BUILDING RULES
1. As stated in the lease, Tenant shall not use the Premises as a "place of
public accommodation" as defined in the Americans with Disabilities Act of 1990,
which identifies the following categories into one or more of which a business
must fall to be a "place of public accommodation":
a- Places of lodging (examples hotel, motel)
b. Establishments serving food or drink (examples: bar, restaurant)
c. Places of exhibition or entertainment (examples: motion picture house,
theater, stadium, concert hall)
d. Places of public gathering (examples: auditorium, convention center,
lecture hall)
e. Sales or rental establishments (examples: bakery, grocery store, hardware
store, shopping center)
f. Service establishments (examples: bank laundromat, barber shop, funeral
parlor, hospital, gas station, business offices such as lawyer, accountant,
healthcare provider or insurance office)
g. Stations used for specified public transportation (examples: bus terminal,
depot)
h. Places of public display or collection (examples: museum, library, gallery)
i. Places of recreation (examples: park, zoo, amusement park)
j. Places of education (examples: nursery, elementary, secondary, private or
other undergraduate or postgraduate school)
k. Social service center establishments (examples: day-care center, senior
citizen center, homeless shelter, food bank, adoption agency)
l. Places of exercise or recreation (examples: gym, health spa, bowling alley,
golf course)
2. Any sidewalks, lobbies, passages and stairways shall not be obstructed or
used by Tenant for any purpose other than ingress and egress from and to the
Premises. Landlord shall in all cases retain the right to control or prevent
access by all persons whose presence, in the judgment of Landlord, shall be
prejudicial to the safety, peace or character of the Property.
3. The toilet rooms, toilets, urinals, sinks, faucets, plumbing or other service
apparatus of any kind shall not be used for any purposes other than those for
which they were installed, and no sweepings, rubbish, rags, ashes, chemicals or
other refuse or injurious substances shall be placed therein or used in
connection therewith or left in any lobbies, passages, elevators or stairways.
4. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
No person shall go on the roof without Landlord's permission.
5. Skylights, windows, doors and transoms shall not be covered or obstructed by
Tenant, and Tenant shall not install any window covering which would affect the
exterior appearance of the Building, except as approved in writing by Landlord.
Tenant shall not remove, without Landlord's prior written consent, any shades,
blinds or curtains in the Premises.
6. Without Landlord's prior written consent, Tenant shall not hang, install,
mount, suspend or attach anything from or to any sprinkler, plumbing, utility or
other lines. If Tenant hangs, installs, mounts, suspends or attaches anything
from or to any doors, windows, walls, floors or ceilings, Tenant shall sparkle
and sand ail holes and repair any damage caused thereby or by the removal
thereof at or prior to the expiration or termination of the lease. If Tenant
elects to seal the floor, Tenant shall seal the entire unfinished floor area
within the Premises. If Tenant elects to paint all or any portion of the
Premises, Tenant, prior to the termination of the lease, shall restore all or
such portion(s) of the Premises to the painted or unpainted condition thereof as
of the Commencement Date.
7.Tenant shall not change any locks nor place additional locks upon any doors
and shall surrender all keys and passes at the end of term.
8. Tenant shall not use nor keep in the Building any matter having an offensive
odor, nor explosive or highly flammable material, nor shall any animals other
than seeing eye dogs in the company of their masters be brought into or kept in
or about the Premises.
9. if Tenant desires to introduce electrical, signalling, telegraphic,
telephonic, protective alarm or other wires, apparatus or devices, Landlord
shall direct where and how the same are to be placed, and except as directed no
installation boring or cutting shall be permitted. Landlord shall have the right
to prevent and to cut off the transmission of excessive or dangerous current of
electricity or annoyances into or through the Building or the Premises and to
require the changing of wiring connections or layout at Tenant's expense, to the
extent that Landlord may deem necessary, and further to require compliance with
such reasonable rules as Landlord may establish relating thereto, and in the
event of non-compliance with the requirements or rules, Landlord shall have the
right immediately to cut wiring or to do what it considers necessary to remove
the danger, annoyance or electrical interference with apparatus in any part of
the Building. All wires installed by Tenant must be clearly tagged at the
distributing boards and junction boxes and elsewhere where required by Landlord,
with the number of the office to which said wires lead, and the purpose for
which the wires respectively are used, together with the name of the concern, if
any, operating same.
10. Tenant shall not place weights anywhere beyond the safe carrying capacity of
the Building,
11. The use of rooms as sleeping quarters is strictly prohibited at all times.
12. Tenant shall have the right, at Tenant's sole risk and responsibility, to
use its proportional share of the parking spaces at the Property as reasonably
determined by Landlord. Tenant shall comply with all "parking regulations
promulgated by Landlord from time to time for the orderly use of the vehicle
parking areas, including without limitation tile following:. Parking shall be
limited to automobiles, passenger or equivalent vans, motorcycles, light four
wheel pickup trucks and (in designated areas) bicycles. No vehicles shall be
left in the parting tot overnight. Parked vehicles shall not be used for vending
or any other business or other activity while parked in the parking areas.
Vehicles shall be parked only in striped parking spaces, except for loading and
unloading, which shall occur solely in zones marked for such purpose, and be so
conducted as to not unreasonably interfere with traffic flow within the Property
or with loading and unloading areas of other tenants. Employee and tenant
vehicles shall not be parked in spaces marked for visitor parking or other
specific use. All vehicles entering or parking in the parking areas shall do so
at owner's sole risk, and Landlord assumes no responsibility for any damage,
destruction, vandalism or theft. Tenant shall cooperate with Landlord in any
measures implemented by Landlord to control abuse of the parking areas,
including without limitation access control programs, tenant and guest vehicle
identification programs, and validated parking programs, provided that no such
validated parking program shall result in Tenant being charged for spaces to
which it has a right to free use under its lease. Each vehicle owner shall
promptly respond to any sounding vehicle alarm or horn, and failure to do so may
result in temporary or permanent exclusion of such vehicle from the parking
areas. Any vehicle which violates the parking regulations may be cited, towed at
the expense of the owner, temporarily or permanently excluded from the parking
areas, or subject to other lawful consequence.
13. If Landlord designates the Building as a non-smoking building and provides
outdoor smoking area(s), Tenant and its Agents shall not smoke in the Building.
14. If at Tenant's request, Landlord consents to Tenant having a dumpster at the
Property, Tenant shall locate the dumpster in the area designated by Landlord
and shall keep and maintain the dumpster clean and painted with lids and doors
in good working order and, at Landlord's request, locked.
15. Tenant shall provide Landlord with a written identification of any vendors
engaged by Tenant to perform services for Tenant at the Premises (examples:
cleaners, security guards/monitors, trash haulers, telecommunications
installers/maintenance).
16. Tenant shall cause all of Tenant's Agents to comply with these Building
Rules.
17. Landlord reserves the right to rescind, suspend or modify any rules or
regulations and to make such other rules and regulations as, in Landlord's
reasonable judgment, may from time to time be needed for the safety, care,
maintenance. operation and cleanliness of the Property. Notice of any action by
Landlord referred to in this paragraph, given to Tenant, shall have the same
force and effect as if originally made a part of the foregoing lease. New rules
or regulations will not, however, be unreasonably inconsistent with the proper
and rightful enjoyment of the Premises by Tenant under the lease.
18. These Building Rules are not intended to give Tenant any rights or claims in
the event that Landlord does not enforce any of them against any other tenants
or if Landlord does not have the right to enforce them against any other tenants
and such nonenforcement will not constitute a waiver as to Tenant.
19. Tenant shall be deemed to have read these Building Rules and to have agreed
to abide by them as a condition to Tenant's occupancy of the Premises.
<PAGE>
EXHIBIT "D" TENANT ESTOPPEL CERTIFICATE
Please refer to the documents described in Schedule 1 hero, (the "Lease
Documents") including the "Lease" therein described; all defined terms in this
Certificate shall have the same meanings as set forth in the Lease unless
otherwise expressly set forth herein. The undersigned Tenant hereby certifies
that it is the tenant under the Lease. Tenant hereby further acknowledges that
it has been advised that the Lease may be collaterally assigned in connection
with a proposed financing secured by the Property and/or may be assigned in
connection with a sale of the Property and certifies both to Landlord and to any
and all prospective mortgagees and purchasers of the Property, including any
trustee on behalf of any holders of notes or other similar instruments, any
holders from time to time of such notes or other instruments, and their
respective successors and assigns (the "Mortgagees") that as of the date hereof
1. The information set forth in attached Schedule I is true and correct.
2. Tenant is in occupancy of the Premises and the Lease is in full force and
effect, and, except by such writings as are identified on Schedule 1, has not
been modified, assigned, supplemented or amended since its original execution,
nor are there any other agreements between Landlord and Tenant concerning the
Premises, whether oral or since
3. All conditions and agreements under the Lease to be satisfied or performed by
Landlord have been satisfied and performed
4. Tenant is not in default under the Lease Documents, Tenant has not received
any notice of default under the Lease Documents, and, to Tenant's knowledge,
there are no events which have occurred that, with the giving of notice and/or
the passage of time, would result in a default by Tenant under the Lease
Documents.
5. Tenant has not paid any Rent due under the Lease more than 30 days in advance
of the date due under the Lease and Tenant has no rights of setoff counterclaim,
concession or other rights of diminution of any Rent due and payable under the
Lease except as set forth in Schedule 1.
6. To Tenant's knowledge, there are no uncured defaults on the part of Landlord
under the Lease Documents, Tenant has not sent any notice of default under the
Lease Documents to Landlord, and there are no events which have occurred that,
with the giving of notice and/or the passage of time, would result in a default
by Landlord thereunder, and that at the present time Tenant has no claim against
Landlord under the Lease Documents.
7. Except as expressly set forth in Part G of Schedule 1, there are no
provisions for any, and Tenant has no, options with respect to the Premises or
all or any portion of the Property.
8. Except as set forth on Part M of Schedule 1, no action, voluntary or
involuntary, is pending against Tenant under federal or state bankruptcy or
insolvency law.
9. The undersigned has the authority to execute and deliver this Certificate on
behalf of Tenant and acknowledges that all Mortgagees will rely upon this
Certificate in purchasing the Property or extending credit to Landlord or its
successors in interest.
10. This Certificate shall be binding upon the successors, assigns and
representatives of Tenant and any party claiming through or under Tenant and
shall inure to the benefit of all Mortgagees.
IN WITNESS WHEREOF, Tenant has executed this Certificate this day of , 19
Name of Tenant
By:
Title:
<PAGE>
SCHEDULE 1 TO TENANT ESTOPPEL CERTIFICATE
Lease Documents. Lease Terms and Current Status
A. Date of Lease:
B. Parties:
1. Landlord
2. Tenant d/b/a
C Premises known as:
D. Modifications, Assignments, Supplements or Amendments to Lease:
E. Commencement Date:
F. Expiration of Current Term:
G. Options:
H. Security Deposit Paid to Landlord: S
1. Current Fixed Minimum Rent (Annualized): S
J. Current Additional Rent (and if applicable, Percentage Rent)(Annualized): S
k
K. Current Total Rent: $
L_ Square Feet Demised:
M. Tenant's Bankruptcy or other Insolvency Actions:
h:
<PAGE>
LEASE TERMINATION AGREEMENT
THIS AGREEMENT is made this 7th day of May, 1998, by and between LIBERTY
PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership ("Landlord")
and OPEN PLAN SYSTEMS, INC., a Virginia corporation ("Tenant"). BACKGROUND:
A. Lingerfelt and Carpenter, Landlord's predecessor, and Tenant entered into a
Lease Agreement dated April 6, 1992, as amended by First Amendment to Lease
dated June 22, 1993 and Second Amendment to Lease dated April 3, 1995 (the
"Lease") covering certain premises located at 4263-99 Carolina Avenue, Richmond,
Virginia 23222, as more fully described in the Lease (the "Premises").
B. Tenant desires to terminate the Lease prior to the Expiration Date set forth
in the Lease and Landlord has agreed to an early termination of the Lease in
accordance with the terms and conditions contained herein. NOW, THEREFORE, the
parties hereto, in consideration of the mutual promises and covenants contained
herein, and intending to be legally bound hereby, agree that the Lease is and
shall be terminated effective as of April 30, 1998 (the "Termination Date")
provided as follows:
1. Tenant shall comply with all the terms and conditions of the Lease through
the Termination Date; thereafter neither party shall have any further rights or
obligations under the Lease other than any obligations of Tenant which by their
terms survive the expiration or earlier termination of the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to be duly
executed under seal as of the day and year first above written.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, Sole General Partner By: Name:
AA 06A
Title:
Witness/Attest:
OPEN PL SYSTEMS INC.
By: 'Name, Title:
LEASE
This lease made this 18th day of SEPTEMBER 1998 by and between QUALITY DAIRY
COMPANY a Michigan CORPORATION having its principal offices at 111 W. MT. HOPE
AVE.. LANSING. MI 48190 hereinafter called "Landlord" and OPEN PLAN SYSTEMS.
INC., a Virginia CORPORATION having its principal office at 4299 CAROLINA AVE.,
BLDG. C. RICHMOND, VA 23222, hereinaffer called "Tenant".
WITNESSETH:
1. LEASED PREMISES - Landlord, in consideration of the rent to be paid and
covenants to be performed by Tenant, does hereby demise and lease unto Tenant,
and the Tenant hereby rents from Landlord, those certain premises located at
2100 and 2110 S. WASHINGTON AVE. LANSING, MI 48910 which property is legally
described as:
SEE ATTACHED EXHIBITS A, B, AND C THAT ARE INCLUDED AND MADE A PART OF THIS
LEASE.
2. TERM - The term of this Lease shall commence on OCTOBER 1. 1998 at which time
occupancy shall begin and shall be for TWO ( 2 ) year ending SEPTEMBER 30. 2000
at 12:00 midnight. Tenant shall have the option to continue and renew this lease
under the following terms and conditions:
1) Tenant must notify Landlord ninety (90) days before the termination of this
lease of its intention to exercise its option to renew the same.
2) The option to renew this lease shall be ONE (1) YEAR. OCTOBER 1. 2000 TO
SEPTEMBER 30. 2001.
3. LEASE YEAR DEFINED - The term "lease year" as used herein shall be defined to
mean a period of twelve (12) consecutive calendar months. The first lease year
shall begin on the commencement date of the term of this Lease. Each succeeding
lease year shall commence on the anniversary date of the first lease year.
4. MINIMUM ANNUAL RENT - Tenant shall pay the Landlord as minimum rent during
the term of this lease the sum of ONE HUNDRED NINETY THREE THOUSAND THREE
HUNDRED SIXTY EIGHT AND 00/100 ( $193.368.00 1 Dollars annually which is to be
paid at the rate of SIXTEEN THOUSAND ONE HUNDRED FOURTEEN AND 00/100 ($16 114.00
) Dollars monthly in advance on the first day of each month. This minimum rent
is calculated at the rate of $2.65 per square feet for the 58.850 leaseable
square feet and at the rate of $1.17 per so. ft. for the 32 100 sq. ft.
basement.
Tenant shall pay -0- Security deposit
Tenant shall pay -0- Security deposit
Tenant shall pay -0- Security deposit
-1-
<PAGE>
5. COST OF LIVING ADJUSTMENT - On every anniversary of the beginning of the
lease term, the monthly minimum rent as specified for the yearly period shall be
adjusted, but not below the rent for the prior yearly period, to compensate for
the loss of purchasing power of the United States of America Dollar during the
preceding year. Increases shall be limited to $.085 per sq. ft. per year for
main floor areas and $.03 per sq. ft. per year for the basement area.
6. USE OF PREMISES - Tenant shall use premises for STORAGE AND RECONDITIONING OF
OFFICE FURNITURE AND OFFICES
Tenant shall conduct no other business from the premises. Tenant must notify
Landlord in writing of any intended change in use at least thirty (30) days
prior to such change in use and Tenant shall not make such change without
Landlord's written permission which permission will not be unreasonably
withheld. There shall be no storage of toxic substances within the leased area,
7. REPAIRS BY LANDLORD AT LEASE COMMENCEMENT'- Tenant-will inform Landlord in
writing within thirty (30) days of commencement of the lease of any defects in
the operation of the air, heat, electric and plumbing. Landlord will bring these
systems into good operating condition within seven (7) days of receipt of
Tenants written correspondence.
8. JANITORIAL - Tenant shall be liable for the removal of its trash, interior
cleaning and cleaning of the exterior grounds within fifty (50) feel radius of
the leased premises.
9. PARKING AREA - Tenant, its employees and agents shall restrict their parking
of any vehicle only to that area designated by the Landlord for such parking.
10. SNOW REMOVAL - Landlord will hire an independent contractor to remove snow
from the parking lot. Tenant will pay AS BILLED per incidence of such removal
costs when billed by the Landlord. Sidewalk snow removal and deicing of
sidewalks and parking lot shall be the responsibility of the Tenant.
11. REPAIR AND MAINTENANCE - Landlord agrees during the term of this Lease, at
Landlord's cost and expense, to properly maintain and make necessary exterior
walls, roof and structural portions of the leased premises. Tenant agrees to
maintain and repair, ceilings, floor cover, wall finish, glass windows and
doors, Heating, Ventilating, Air conditioning system rest rooms. Landlord agrees
to maintain all utility connections from the exterior walls of the premises to
the utility connections. Tenant agrees to maintain and repair all utility
systems, pipes, lines, etc. on the interior of the leased premises at his own
cost. Landlord agrees to maintain the parking lot surface and landscaping.
12. FIRE OR CASUALTY - If the leased premises shall be damaged or destroyed in
whole or in part by fire, the elements or other casualty during the term hereof,
Landlord shall, at its own cost and expense promptly repair and restore the
entire leased property to a condition substantially equal to the condition of
the lease property before the damage. The minimum rents, and all other changes
shall abate from the date of such damage until the date thirty (30) days after
the dale the Landlord shall have repaired and restored the leased premises as
outlined.
In the event the Landlord has not completed the repairs and restoration of the
leased premises within three (3) months after the date of the damage, the Tenant
at its option, may cancel and terminate this Lease upon ten (10) days written
notice.
13. CONDITION OF PREMISES - Tenant agrees to maintain the premises in the same
condition as when received and will not allow any waste, misuse or neglect or
should waste, misuse or neglect occur on the leased premise, that the
responsibility therefore shall be that of the Lessee, unless damage occurs
through the fault of the Lessor.
-2-
14. IMPROVEMENTS - Tenants may not alter, make improvements or change the
property or its improvements, without the prior approval of Landlord.
15. CONDITION OF PREMISES UPON TERMINATION - At the expiration of this Lease
Tenant will quit and surrender the leased premises in as good a condition as it
was when entered into except for wear and tear.
16. UTILITIES AND TAXES - Tenant shall be responsible for the payment of all
utility costs and personal property taxes. Landlord shall pay annual real estate
taxes assessed against this property when due.
17. EMINENT DOMAIN - If the whole of the leased premises shall be taken for any
public or quasi-public use under any statute or by right of eminent domain, then
this Lease shall automatically terminate as of the date the title shall be
taken. If any part of the leased premises shall be taken so that it interferes
with the right of Tenant in carrying out its general business, then the tenant
shall have the right to terminate this Lease upon thirty (30) days written
notice to Landlord given within ninety (90) days after the date of such taking
and upon termination the parties hereto shall be released from a all their
respective obligations hereunder. Landlord shall be entitled to claim all
damages and award for damages and all compensation for the diminution in value
of the fee of the leased premises.
18. RE-RENTING - Tenant hereby agrees that for a period commencing sixty (60)
days prior to the expiration of this Lease, Landlord may show the leased
premises to prospective Tenants by giving 24 hours written notice to Tenant and
only during normal business hours.
19. HOLDING OVER - In the event Tenant holds over after the expiration of the
term of this Lease, including any extensions thereof, thereafter the tenancy
will be deemed to be from month to month at the rents specified (prorated on a
monthly basis) and shall otherwise be on the terms and conditions herein
specified as applicable.
20. TENANT'S DEFAULT - Tenant shall be deemed in default for failing to timely
pay the rent or other charges due hereunder. After seven (7) day written notice
of these charges has been given. to Tenant and the allotted time for payment has
lapsed and Tenant has failed to correct the default, Landlord shall be entitled
to start eviction procedures for the removal of Tenant from the leased premises.
Tenant shall be deemed to be in default of other provisions of this Lease if
written notice of such violation has not been corrected within thirty (3) days
of the date such written notice is given to Tenant.
21. RIGHT TO RE-ENTER - In the event any rent shall be due and unpaid, and such
default shall not have been cured after written notice and within the time
herein provided, or if the leased premises shall be abandoned, then it shall be
lawful for Landlord, its certain attorney, representative or assigns, upon ten
(10) day written notice to Tenant, to either terminate this Lease or to lawfully
re-enter into and repossess the leased premises and Tenant and each and every
occupant to remove and put out.
22. ASSIGNMENT - Tenant may not assign this Lease or any interest in it without
the prior written approval of Landlord, which approval will not be unreasonably
withheld.
23. SUCCESSORS - All rights and liabilities herein given or imposed upon the
parties hereto shall extend to and bind the heirs, executors, administrators,
successors and assigns of the said parties.
24. NOTICE - Any notice, demand, request, or other instrument which may be or is
required to be given under this lease shall be sent by United State Certified
mail, return receipt requested, postage prepaid to the respective parties at the
addresses given hereto in this Lease.
-3-
25. ARBITRATION - Any controversy or claim arising out of or relating to this
contract, or the breach thereof, shall be settled by arbitration administered by
the American Arbitration association under its Commercial Arbitration rules, and
judgment on the award rendered by the arbitrator(s) may be entered in the Ingham
County, Michigan Circuit Court. This is intended to be statutory arbitration
under MCL 600.5001, et. sea. MSA 27 A.5001, and MCR3.602.
26. JURY TRIAL - Landlord and Tenant knowingly, voluntarily, and intentionally
waive trail by jury in any action to enforce this lease.
27-. ATTORNEY FEES - Each party shall pay their own respective legal fees.
28. INSURANCE REQUIREMENTS - Tenant shall keep in force throughout the Term: (a)
A Commercial General Liability insurance policy or policies to protect the
Landlord Entities against any liability to the public or to any invitee of
Tenant or a Landlord Entity incidental to the use of or resulting from any
accident occurring in or upon the Premises with limits of not less than
$1,000,000.00 per occurrence and not less than $2,000,000.00 in the annual
aggregate, or such larger amount as Landlord may prudently require from time to
time, covering bodily injury and property damage liability and $1,000,000.00
products completed operations aggregate: (b) A Business Auto Liability insurance
policy or policies covering owner, non-owned and hired vehicles with limits of
not less than $1,000,000.00 per accident; (c) An insurance policy or policies
protecting against liability under Worker's Compensation Laws with limits at
least as required by statue; (d) An Employer's Liability insurance policy or
policies with limits of $100,000.00 per accident, $500,000.00 disease policy
limit, $100,000.00 disease - each employees: (e) All Risk or Special Form
insurance coverage protecting Tenant against loss or damage to Tenant's
alterations, additions, improvements, carpeting, floor coverings, panelings,
decorations, fixtures, inventory, plate glass and other business personal
property situated in or about the premises to the full replacement value of the
property so insured loss of income.
29. PROOF OF INSURANCE - Each of the required policies shall (a) be provided at
Tenant's expense; (b) name the Landlord Entities as additional insureds; (c) be
issued by an insurance company authorized to transact business in Michigan and
rated at Least "A Class Vll" by Best's Insurance Reports during the Term; and
9d) provide that said insurance shall not be canceled unless thirty (30) days
prior written notice (ten days for non-payment of premium) shall have been given
to Landlord; and said policy or policies or certificates thereof shall be
delivered to Landlord by Tenant upon the Actual Commencement Date and at least
thirty (30) days prior to each renewal of said insurance.
30. WAIVER OF SUBROGATION - Tenant and Landlord hereby mutually waive their
respective rights of recovery against each other for any loss insured by fire,
extended coverage, All Risks or other insurance now or hereafter existing for
the benefit of the respective party by only to the extent of the net insurance
proceeds payable under such policies. Each party shall obtain any special
endorsements required by their insurer to evidence compliance with the
aforementioned waiver.
31. CONTRACTORS INSURANCE - Whenever Tenant shall undertake any alterations,
additions or improvements in, to or about the Premises ("Work") the aforesaid
insurance protection must extend to and indude injuries to persons and damage to
property arising in connection with such Work, without limitation, including
liability arising under any applicable structural work act, and such other
insurance as Landlord shall require; and the policies of or certificates
evidencing such insurance must be delivered to Landlord prior to the
commencement of any such Work.
- -4- 32. HOLD HARMLESS AGREEMENT - Tenant shall save the Landlord and its Agents
harmless and indemnified from all loss, damage liability or expense incurred,
suffered or claimed by any person by reason of Tenant's negligence or use of the
lease premises or the building of which the leased premises are apart or
anything herein, or the parking facilities on or adjacent thereto ... or by
reason of any injury, loss, or damage to any person or property upon the leased
premises not caused by negligence of the Landlord.
33. INDEMNIFICATION - None of the Landlord Entities shall be liable and Tenant
hereby waves all claims against them for any damage to any property or any
injury to any person in or about the Premises or from any cause whatsoever
(including without limiting the foregoing, rain or water leakage of any
character from the roof, windows, walls, basement, pipes, plumbing works or
appliances, the premises not being in good condition or repair), except to the
extent caused by or arising from the sole negligence of Landlord or its agents,
employees contractors. Tenant shall protect, indemnify and hold the Landlord
Entities harmless from and against any and all loss, claims liability or costs
(including court costs and attorney's fees) incurred by reason of; (a) any
damage to any property (including but not limited to property of any Landlord
Entity) or any injury (including but not limited to death) to any person
occurring in, on or about the Premises to the extent that such injury or damage
shall be caused by or arise from any actual or alleged act, neglect, fault, or
omission by or of Tenant, its agents, servants, employees, invitees, or visitors
to meet any standards imposed by any duty with respect to the injury or damage;
(b) the conduct or management of any work or thing whatsoever done by the Tenant
in or about the Premises or from transactions of the Tenant concerning the
Premises; (c) Tenant's failure to comply with any and all governmental laws,
ordinances and regulations applicable to the condition or use of the Premises or
its occupancy; or (d) any breach or default on the part of Tenant in the
performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to this Lease. The provisions of this Article shall survive
the termination of this Lease with respect to any claims or liability accruing
prior to such termination. Landlord may charge Tenant for additional insurance
costs related to the use or occupancy of the premises or from the failure of the
Tenant to supply Landlord with the insurance and proper proof of insurance.
34. PARTIAL INVALIDITY - The invalidity or unenforceability of any provision of
this Lease shall not effect or impair the validity of any other provision. The
Lease shall be governed by the laws of the State of Michigan.
35. ENTIRE AGREEMENT - This Lease the Exhibits attached hereto, set forth all
the covenants, promises, agreements, conditions and understandings of the
parties hereto and there exist no other oral or written covenants, promises,
agreements, conditions or understandings between them. No change or amendment to
the Lease can be made or be binding unless it is in writing and signed by both
parties.
36. ODOR CONTROL - Tenant agrees to effectively prevent odors from vaporized
paints, solvents or other materials used in the restoration of office furniture
or any other operations in the leased premises to contaminate the air space in
any building area above, below or the sides of the leased premises. Tenant shall
remove odors from its leased premises upon written notification by Landlord. It
is mutually agreed that time is of the essence.
37. OFFICE AREA LIMITATION - Tenant shall limit its office space to 5,000 sq.
ft. at 2110 S. Washington and to 800 sq. ft. existing office space at 2100 S.
Washington Avenue. No further expansion of office space is allowed or
contemplated with this lease.
38. TRUCK PARKING - Tenant shall not park trucks or trailers that are longer
than 25 ft. overnight at any of the truck docks at 2100 S. Washington Avenue.
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39. COMMON DOCKS - Use of two docks at 2100 and 2104 S. Washington shall be made
available to Tenant. The dock area is not under lease of Tenant, it is a
non-dedicated common use dock.
40. BASEMENT STORAGE - All storage of products in basement are on pallets or any
other material raised two (2) inches or more off floor.
41. UTILITY ROOM - Landlord reserves a 3,200 sq. ft. area in the North-East
corner of the basement of 2110 S. Washington for access to various utility
connections.
42. PARKING for Tenant is described as follows:
A. 55 employee parking spaces.
B. 5 customer parking spaces
C. 8 truck or trailer parking spaces.
43. EXTERIOR AREA USES - No storage or staging of materials in dock areas,
raceway or elevator areas which are designated common areas by Landlord.
44. DUMPSTERS - Trash Containers may not be stored outside of leased premises
unless approved in advance by Landlord.
45. SECURITY - Tenant shall secure all exterior doors to common areas and close
and lock all fire doors in raceways (both floors) when not actively moving
materials.
46. SUCCESSOR LEASE - This lease is intended to replace the Lease originally
signed on August 8, 1993 between Quality Dairy Co. and Immaculate Eagle, Inc.
47. FLOOR REPAIR - Landlord shall promptly repair floors that need repair and
are the responsibility of the Landlord to repair.
48. FORK TRUCK LOADS - Tenants fork trucks maximum loaded weight may not exceed
8,000 pounds. Tenant minimum tire size for three (3) existing fork trucks
numbered 1, 2, and 3 in 4 1/2" wide by 13" in diameter. All new fork trucks
shall have Pneumatic tires (either air or rubber filled) and have a tire size of
6" wide and 13" in diameter. Tenants use of fork trucks that contain wheel sizes
smaller than the defined minimum sizes constitutes misuse of the premises.
Tenant will then be responsible for repairs to the damaged building structures
such as floors and floor supports.
IN WITNESS WHEREOF, Landlord and Tenant have signed their names and fixed their
seals (if any) as of this day and year first above written.
In the Presence of: Landlord
By:
/s/ Quality Dairy Inc.
/s/ Debra A. Dixon Its:
Tenant By:
/s/ William F. Crabtree
The Registrant had no subsidiaries at 12/31/99.
