EXHIBIT 10.26
AGREEMENT OF LEASE
BY AND BETWEEN
22 LIGHT STREET, LLC.
and
On-Site Sourcing, Inc.
SECTION HEADING PAGE
1 Summary of Key Terms 3
2 Term 3
2.1.1 Original Term 3
2.2 Surrender 4
2.3 Holding Over 4
3 Commencement Date 4
4 Rent 4
4.1.1 Base Rent 4
4.1.2 Additional Rent 4
4.1.3 Rental Abatement 4
4.1.4 Real Estate Tax Base Year 4
4.1.5 Operating Costs Base Year 5
4.1.6 Payment of Passthrough Expenses 5
4.1.7 Landlord's Right to Estimate 5
4.2 When due and payable 5
4.3 Where payable 5
4.4 Advance Rent 6
4.5 Security Deposit 6
5 Use of Premises 6
6 Tenant's Proportionate Share 6
7 Utilities 6
8 Insurance and Indemnification 6
8.1 Increase in Risk 6
8.2 Insurance to be maintained by 6
Tenant
8.3 Insurance to be maintained by 6
Landlord
8.4 Waiver of subrogation 7
8.5 Liability of parties 7
9 Improvements to Premises 7
9.1 By Landlord 7
9.2 Acceptance of Possession 7
9.3 By Tenant 7
9.4 Mechanics Liens 7
9.5 Fixtures 8
9.6 Materials Used 8
10 Maintenance and Services 8
10.1 Janitorial and Trash Removal 8
10.2 Maintenance by Tenant 8
10.3 Maintenance by Landlord 8
11 Landlord's Right of Entry 8
12 Fire and other Casualties 8
12.1 General 8
12.2 Substantial Destruction 8
12.3 Tenant's Negligence 9
13 Condemnation 9
13.1 Right to Award 9
13.2 Effect of Condemnation 9
14 Assignment & Subletting 10
15 Subordination; Attornment & Non- 10
Disturbance
15.1 Subordination 10
15.2 Attornment & Non-Disturbance 10
16 Default 10
16.1 Definition 10
16.2 Notice to Tenant; Grace Period 11
16.3 Landlord's Right on Event of 11
Default
16.4 Default by Landlord 12
17 Estoppel Certificate 12
18 Quiet Enjoyment 13
19 Relocation Clause 13
20 Notices 13
21 General 13
21.1 Effectiveness 13
21.2 Complete Understanding 13
21.3 Amendment 13
21.4 Applicable Law 13
21.5 Waiver 13
21.6 Time of Essence 13
21.7 Headings 13
21.8 Definitions 13
21.9 Exhibits 14
21.10 Severability 14
21.11 Definition of "the Tenant" 14
22 Deliveries 14
23 Expansion Options 14
24 Miscellaneous 14
Signature Page 15
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE (hereinafter referred to as "this Lease"), made
this 25th day of August, 1997, by and between 22 Light Street, LLC, a Limited
Liability Company organized and existing under the law of Maryland having an
address at 00 Xxxxx Xxxxxx (hereinafter referred to as "the Landlord"), and
On-Site Sourcing, Inc., existing under the law of _________________ having a
primary address at ____________________ (hereinafter referred to as "the
Tenant"),
WITNESSETH, THAT FOR AND IN CONSIDERATION of the mutual entry into this
Lease by the parties hereto, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged by each party
hereto, the Landlord hereby leases to the Tenant and the Tenant hereby leases
from the Landlord all of that real property in Baltimore City, Maryland,
which consists of the space containing approximately 5,079 rentable square
feet of floor area shown outlined on a plat attached hereto as Exhibit A
(hereinafter referred to as "the Premises") and located in a building
(hereinafter referred to as "the Building") at 00 Xxxxx Xxxxxx in Baltimore,
Maryland, on a tract of land (hereinafter referred to as "the Land") and any
other buildings or improvements thereon being hereinafter referred to
collectively as "the Property"),
SUBJECT TO THE OPERATION AND EFFECT of any and all instruments and
matters of record or in fact,
UPON THE TERMS AND SUBJECT TO THE CONDITIONS which are hereinafter set
forth:
Section 1. SUMMARY OF KEY TERMS
a) Landlord: 00 Xxxxx Xxxxxx, LLC
b) Tenant: On-Site Sourcing, Inc.
c) Premises: Xxxxx 000 xx 00 Xxxxx Xxxxxx, containing
approximately 5,079 rentable square feet
d) Term: 10 Years, 4 Months beginning on October 15, 1997
e) Base Rental Rate: $15.00 per rentable square foot
f) Rental Concession: Tenant will be responsible for rental
payments during Year 1 based on 3,500 rentable square feet.
Commencing on Year 2, Tenant will pay rental based on its
square footage of 5,079 rentable square feet for the
remainder of the lease term.
g) Tenant's Operating Costs Percentage: 11.1%
h) Annual Base Rental Increase: 3% annual increase
i) Tenant Improvement: Landlord will build out space as
stipulated in Section 9.1 and Exhibit A.
j) Security Deposit: 1 month rent equalling $6,348.75
k) Advance Rent: 1 month equalling $4,375.00
l) Real Estate Tax Base Year: 1998
m) Operating Expense Base Year: 1998
n) Utilities: Directed metered and/or billed to Tenant
o) Rental Abatement: The initial two and one half months of
the lease term (October 15, 1997 - December 31, 1997) shall be
rent free plus January and February of 1999 shall be rent free.
Section 2. TERM.
2.1 LENGTH.
2.1.1. ORIGINAL TERM. This Lease shall be for a term (hereinafter
referred to as the ("Original Term") (a) commencing on October 15, 1997,
(hereinafter referred to as the "Commencement Date" and (b) terminating at
11:59 o'clock P.M., local time, on the day immediately preceding the tenth
(10th) year fourth (4th) month anniversary of the first (1st) day of the
first (1st) full calendar month during the Term (hereinafter referred to as
the ("Termination Date"). Such termination date is February 14, 2007.
-3-
2.2. SURRENDER. The Tenant shall at its expense, at the expiration of the
Term or any earlier termination of this Lease, (a) promptly surrender to the
Landlord possession of the Premises (including any fixtures or other
improvements which, under the provisions of Section 5, are owned by the
Landlord) in good order and repair damages reasonably beyond the Tenant's
control and ordinary wear and tear excepted) and broom clean, (b) remove
therefrom the Tenant's signs, goods and effects and any machinery, trade
fixtures and equipment which are used in conducting the Tenant's trade or
business and are not owned by the Landlord, and (c) repair any substantial
damage to the Premises or the Building caused by such removal.
2.3 HOLDING OVER. If the Tenant continues to occupy the Premises after
the expiration of the term or any earlier termination of this Lease without
having obtained the Landlord's express, written consent thereto, then without
altering or impairing any of the Landlord's rights under this Lease or
applicable law, (a) the Tenant hereby agrees to pay to the Landlord
immediately on demand by the Landlord, as Rent for the Premises, for each
calendar month or portion thereof after such expiration of the Term or such
earlier termination of this Lease, as aforesaid, until the Tenant surrenders
possession of the Premises to the Landlord, a sum equaling one hundred
twenty-five percent (125%) of the amount of the monthly Base Rent and
Additional Rent which would have been due and payable under the provisions of
the Lease and (b) the Tenant shall surrender possession of the Premises to
the Landlord immediately on the Landlord's having demanded the same. Nothing
in the provisions of this Lease shall be deemed in any way to give the Tenant
any right to remain in possession of the Premises after such expiration or
termination, regardless of whether the Tenant has paid any such Rent to the
Landlord.
Section 3. COMMENCEMENT DATE.
3.1 The Commencement Date is October 15, 1997. In the event this lease
is executed later than August 15, 1997, then the commencement date may be
extended, at Landlord's sole option, on a day by day basis whereas the
Premises will be ready for occupancy 60 days after lease execution. In the
event the Premises is not ready for occupancy within 60 days after lease
execution, then Landlord will use commercially reasonable efforts to complete
the tenant improvements as expeditiously as possible thereafter.
Section 4. BASE RENTAL RATE.
4.1 AMOUNT. As rent for the Premises (all of which is hereinafter
referred to collectively as "Rent"), the Tenant shall pay to the Landlord all
of the following:
4.1.1. BASE RENT. An annual base rent (hereinafter referred to as
"the Base Rent") which
(a) the base rental rate for the initial 12 months of the
Lease Term commencing on October 15, 1997 through October 14, 1998 is $15.00
per rentable square foot. The rental rate shall increase 3% annually during
the course of the lease term.
(b) the Tenant will pay rental for Year 1 of the lease based
on 3,500 rentable square feet. The Year 1 annual payment is $52,500.
Commencing in Year 2, the tenant will pay rental based on 5,079 rentable
square feet.
(c) for the initial Lease Year 1 Commencing October 15, 1997
through October 14, 1998 during the Original Term, is in the sum of $52,500.
If the Term commences on a day other than the first (1st) day of a calendar
month), for the initial Lease Year Tenant shall pay one
three-hundred-sixty-fifth (1/365) of such sum for each day of such calendar
month falling within the Term; and
(d) for each Lease Year thereafter during the Term, the
rental rate shall increase in a sum equaling a 3% annual increase to the Base
Rental Rate as compared to the previous years rental rate. For instance, the
initial lease year rental rate is $15.00 per rentable square foot, the second
lease year rental rate shall increase by 3% to $15.45 per rentable square
foot ($15.00 x 1.03%), the third lease year shall increase to $15.91 (15.45 x
1.03%) per rentable square foot and so on.
(e) the rental payment for Year 2 commencing on October 15,
1997 to October 14, 1998 is $78,470.55 (5,079 rentable square feet x $15.45).
The annual rental payment shall increase by 3% per year thereafter.
4.1.2. ADDITIONAL RENT. Additional rent (hereinafter referred to as
"Additional Rent") in the amount of any payment referred to as such in any
provision of this Lease which accrues while this Lease is in effect (which
Additional Rent shall include any and all charges or other amounts which the
Tenant is obligated to pay to the Landlord under any of the provisions of
this Lease, other than the Base Rent).
4.1.3. RENTAL ABATEMENT. The initial two and one half months of the
lease term shall be rent free and January, 1999 and February 1999 shall be
rent free.
4.1.4. REAL ESTATE TAX BASE YEAR. Tenant covenants and agrees to
pay to the Landlord, in addition to the Base Rent hereinabove provided, its
proportionate share of any increase in real estate taxes and other
assessments levied on the Premises and Improvements during the term of the
Lease, or any renewal thereof, in excess of the real estate taxes levied
against the building for tax year July 1, 1997 to June 30, 1998. Landlord
shall furnish
-4-
to Tenant a copy of each xxxx for taxes or other assessments which Tenant is
required to pay. Tenant shall pay to Landlord, any sums due hereunder on
demand and Landlord shall pay the taxes directly to the taxing authority.
Tenant shall have the right, at its own expense, to protest any assessment
increase upon the demised Premises. Tenant shall make any such protest in
Landlord's name and Landlord will cooperate with Tenant in making and
completing such protests. For calculation purposes, Base Year Real Estate
Taxes shall reflect a fully assessed building.
4.1.5. OPERATING COSTS BASE YEAR: Tenant covenants and agrees to
pay as additional rent during the term of this Lease (and any renewal) its
proportionate share of the costs and expenses incurred by Landlord in
connection with the operation and maintenance of the Premises, Building and
the Property (hereinafter "Operating Costs") over an actual amount for
Operating Costs for calendar year 1998. The aforegoing Operating Costs shall
be limited to those costs and expenses incurred by Landlord in (a) janitorial
services (b) building insurance (c) property management fees (d) fire
protection and fire systems monitoring (e) common area lighting (f) water and
sewer service (g) elevator service (h) trash removal (i) security system
operation (j) changes or fees for governmental permits (k) premiums for
hazard, liability, worker's compensation or similar insurance upon any or all
of the Property and (l) the cost of any other items which, under generally
accepted accounting principals consistently applied from year to year with
respect to the Property, constitute operating or maintenance costs
attributable to any or all of the Property and shall exclude costs associated
with the renovation of the Property including but not necessarily limited to
the roof, structural supports and facade.
4.1.6. PAYMENT OF PASSTHROUGH EXPENSES. After the end of each
calendar year during the Term, the Landlord shall compute the total of the
Operating Costs incurred for all of the Property during such calendar year,
and shall compare Operating Costs to that of the Base year Operating Costs.
In the event the Operating Costs for any given year exceed the Operating
Costs of the Base Year then Tenant will pay to Landlord the difference, based
on its proportionate share of space leased. Such difference shall be paid to
Landlord within thirty (30) days after demand by the Landlord. Such demand
will be provided in accordance with Lease Section 20 and accompanied by a
statement setting forth such Operating Costs and itemized Building expense
statements for the Base Year and year(s) for which Tenant is being billed.
4.1.7. LANDLORD'S RIGHT TO ESTIMATE. Anything contained in the
foregoing provisions of this subsection to the contrary notwithstanding, the
Landlord may, at its discretion, (a) make from time to time during the Term a
reasonable estimate of the Additional Rent which may become due under such
provisions for any calendar year, (b) require the Tenant to pay to the
Landlord for each calendar month during such year one twelfth (1/12) of such
Additional Rent, at the time and in the manner that the Tenant is required
hereunder to pay the monthly installment of the Base Rent for such month, and
(c) at the Landlord's reasonable discretion, increase or decrease from time
to time during such calendar year the amount initially so estimated for such
calendar year, all by giving the Tenant written notice thereof, provided in
accordance with Lease Section 19 accompanied by a schedule setting forth in
reasonable detail the expenses comprising the Operating Costs, as so
estimated. In such event, the Landlord shall cause the actual amount of such
Additional Rent to be computed and certified to the Tenant within 120 days
after the end of such calendar year, and the Tenant or the Landlord, as the
case may be, shall promptly thereafter pay to the other the amount of any
deficiency or overpayment therein, as the case may be.
4.2. WHEN DUE AND PAYABLE
4.2.1. The Base Rent for any Lease Year shall be due and payable in
twelve (12) consecutive, equal monthly installments, in advance, on the first
(1st) day of each calendar month during such Lease Year. For instance, the
annual rental payments for the first year of the lease is $52,500; therefore,
rental payments for year one will be payable in 12 equal monthly payments of
$4,375 on the first day of each calendar month.
4.2.2. Any Additional Rent accruing under any provision of this
Lease shall, except as is otherwise set forth herein, be due and payable when
the installment of the Base Rent next falling due after such Additional Rent
accrues becomes due and payable.
4.2.3. Each such payment shall be made promptly when due, without
any deduction or setoff whatsoever, and without demand. Any payment made by
the Tenant to the Landlord on account of Rent may be credited by the Landlord
to the payment of any Rent then past due before being credited to Rent
currently falling due. Any such payment which is less than the amount of Rent
then due shall constitute a payment made on account thereof, the parties
hereto hereby agreeing that the Landlord's acceptance of such payment
(whether or not with or accompanied by an endorsement or statement that such
lesser amount or the Landlord's acceptance thereof constitutes payment in
full of the amount of Rent then due) shall not alter or impair the Landlord's
rights hereunder to be paid all of such amount then due, or in any other
respect.
4.3. WHERE PAYABLE. The Tenant shall pay the Rent, in lawful currency of
the United States of America, to the Landlord by delivering or mailing it to
the Landlord's address which is 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000 set forth hereinabove, or to such other address or in such
other manner as the Landlord from time to time specifies by written notice to
the Tenant.
-5-
4.4. ADVANCE RENT. Upon execution of this lease, Tenant agrees to pay to
Landlord one (1) month of advance rent in the amount of $4,375.00. Such
advance rent shall be applied towards rental payments for January 1998.
4.5. SECURITY DEPOSIT. Upon execution of the lease, tenant agrees to pay
to Landlord a security deposit in the amount of $6,348.75.
Section 5. USE OF PREMISES.
5.1. The Tenant shall, throughout the Term, occupy and use the Premises
for and only for general office purposes and general photo copying services.
5.2. In its use of the Premises and the remainder of the Property, the
Tenant shall not violate any applicable law, ordinance or regulation, and
shall comply with all applicable laws relating to its specific occupancy and
use of the Premises.
Section 6. TENANT'S PROPORTIONATE SHARE
For calculation purposes, the Tenant's proportionate share of office
space leased is 11.7% of the entire office area. Such determination is
calculated based on Tenant's rentable square footage (5,079 share feet)
divided by the total rentable square footage of office space on floors 2-6
which is 43,320 square feet.
Section 7. UTILITIES
a) Tenant shall pay all costs of electricity, gas, power, telephone and
other utilities used or consumed on their premises located within Tenant's
suite of 22 Light Street, and there shall be no obligation of the Landlord to
furnish same. Notwithstanding the aforegoing. Tenant agrees to maintain
sufficient heat within the Premises so that the sprinkler system remains in
operation at all times. The Landlord may have Tenant's premises separately
metered. In the event the above utilities are not separately metered and/or
billed, Tenant shall pay its proportionate share of said utilities based on
an allocation to be made by the Landlord in the exercise of reasonable
judgement.
b) Landlord shall, under no circumstances, be liable to Tenant, in
damages or otherwise, for any interruption in the service of water,
electricity, gas, heating, air-conditioning or other utilities or services
caused by an unavoidable delay, by the making of any necessary repairs or
improvements or by any cause beyond Landlord's reasonable control.
Section 8. INSURANCE AND INDEMNIFICATION.
8.1. INCREASE IN RISK. The Tenant (a) shall not do or permit to be done
any act or thing as a result of which either (i) any policy of insurance of
any kind covering (1) any or all of the Property or (2) any liability of the
Landlord in connection therewith may become void or suspended, or (ii) the
insurance risk under any such policy would (in the opinion of the insurer
thereunder be made greater; and (b) shall pay as Additional Rent the amount
of any increase in any premium for such insurance resulting from any breach
of such covenant, within ten (10) days after the Landlord notifies the Tenant
in writing of such increase.
8.2. INSURANCE TO BE MAINTAINED BY TENANT.
8.2.1. The Tenant shall maintain at its expense, throughout the
Term, insurance against loss or liability in connection with bodily injury,
death, property damage or destruction, occurring within the Premises or
arising out of the use thereof by the Tenant or its agents, employees,
officers, subtenants, invitees, visitors and guests, under one or more
policies of general public liability insurance having such limits as to each
as are reasonably required by the Landlord from time to time, but in any
event of not less than (a) Two Million Dollars ($2,000,000) for bodily injury
to or death of any person or persons and damage to property. Each such policy
shall (a) name Tenant as the insured thereunder and the Landlord (and, at the
Landlord's request, any Mortgagee), as additional insureds, (b) by its terms,
be considered primary and non-contributory with respect to any other
insurance carried by the Landlord or its successors and assigns, (c) by its
terms, be cancelable only on at least thirty (30) days' prior written notice
to the Landlord (and, at the Landlord's request, any such Mortgagee), and (d)
be issued by an insurer of recognized responsibility licensed to issue such
policy in Maryland.
8.2.2. (a) At least five (5) days before the Commencement Date, the
Tenant shall deliver to the Landlord a certificate of such policy and (b) at
least thirty (30) days before any such policy expires, the Tenant shall
deliver to the Landlord a certificate of a replacement policy therefor;
provided, that so long as such insurance is otherwise in accordance with the
provisions of this Section, the Tenant may carry any such insurance under a
blanket policy covering the Premises for the risks and in the minimum amounts
specified in paragraph 8.2.1, in which event the Tenant shall deliver to the
Landlord two (2) insurer's certificates therefor in lieu of an original or a
copy thereof, as aforesaid.
8.3. INSURANCE TO BE MAINTAINED BY LANDLORD. The Landlord shall maintain
throughout the Term all-risk
-6-
fire and extended coverage insurance upon the Building, in at least such
minimum amounts and having at least such forms of coverage as are required
from time to time by the Landlord's lender. The cost of the premiums for such
insurance and of each endorsement thereto shall be deemed, for purposes of
the provisions of Section 4.1.4., to be a cost of operating and maintaining
the Property.
8.4. WAIVER OF SUBROGATION. If either party hereto is paid any proceeds
under any policy of insurance naming such party as an insured, on account of
any loss or damage, then such party hereby releases the other party hereto,
to and only to the extent of the amount of such proceeds, from any and all
liability for such loss or damage, notwithstanding that such loss, damage or
liability may arise out of the negligent or intentionally tortious act or
omission of the other party, its agents or employees; provided, that such
release shall be effective only as to a loss or damage occurring while the
appropriate policy of insurance of the releasing party provides that such
release shall not impair the effectiveness of such policy or the insured's
ability to recover thereunder. Each party hereto shall use reasonable efforts
to have a clause to such effect included in its said policies. In the event
Landlord is unable to have a Waiver of Suborgation clause in its policy, then
neither Landlord nor Tenant will be obligated to have such clause in its
policy.
8.5. LIABILITY OF PARTIES. Except if and to the extent that such party
is released from liability to the other party hereto pursuant to the
provisions of subsection 8.4,
8.5.1. the Landlord (a) shall be responsible for, and shall defend,
indemnify and hold harmless the Tenant against and from any and all liability
or claim of liability arising out of, any injury to or death of any person or
damage to any property, occurring anywhere upon the Property, if, only if and
to the extent that such injury, death or damage is proximately caused by the
negligent or intentionally tortious act or omission of the Landlord or its
agents, officers or employees, but (b) shall not be responsible for or be
obligated to defend, indemnify or hold harmless the Tenant against or from
any liability for any such injury, death or damage occurring anywhere upon
the Property (including the Premises), (i) by reason of the Tenant's
occupancy or use of the Premises or any other portion of the Property, or
(ii) because of fire, windstorm, act of God or other cause unless proximately
caused by such negligent or intentionally tortious act or omission of the
Landlord, as aforesaid; and
8.5.2. excluding those situations in which the Landlord is
obligated to indemnify and hold harmless the Tenant under the provisions of
paragraph 8.5.1, the Tenant shall be responsible for, and shall defend,
indemnify and hold harmless the Landlord against and from, any and all
liability or claim of liability arising out of (a) the use, occupancy,
conduct, operation or management of the Premises during the Term, or (b) any
work or thing whatsoever done or not done on the Premises during the Term, or
(c) any breach or default by the Tenant in performing any of its obligations
under the provisions of this Lease or applicable law, or (d) any negligent,
intentionally tortious or other act or omission of the Tenant or any of its
agents, contractors, servants, employees, subtenants, licensees or invitees
during the Term, or (e) any injury to or death of any person or damage to any
property occurring on the Premises during the Term.
Section 9. IMPROVEMENTS TO PREMISES.
9.1. BY LANDLORD.
Landlord, at its cost, will buildout the Premises with building standard
material and within the specifications as outlined in Exhibit A.
9.2. ACCEPTANCE OF POSSESSION. Except for (a) latent defects or
incomplete work which would not reasonably have been revealed by an
inspection of the Premises made for the purpose of discovering the same when
the Landlord delivers possession of the Premises to the Tenant, and (b) any
other item of incomplete work set forth on a "punch list" prepared by the
Tenant and approved in writing by the Landlord before such delivery of
possession, by its assumption of possession of the Premises the Tenant shall
for all purposes of the provisions of this Lease be deemed to have accepted
them and to have acknowledged them to be in the condition called for
hereunder.
9.3. BY TENANT. The Tenant shall not make any alteration, addition or
improvement to the Premises without first obtaining the Landlord's written
consent thereto and to the identity of the contractor or other person who
would make the same which, in the case of non-structural alterations,
additions and improvements only, shall not unreasonably be withheld. If the
Landlord consents to any such proposed alteration, addition or improvement,
it shall be made at the Tenant's sole expense and the Tenant shall hold the
Landlord harmless from any cost incurred on account thereof, and at such time
and in such manner as not unreasonably to interfere with the use and
enjoyment of the remainder of the Property by tenant thereof or other person.
9.4. MECHANICS' LIENS. The Tenant shall (a) immediately after it is
filed or claimed, have released by bonding or otherwise any mechanics',
materialman's or other lien filed or claimed against any or all of the
Premises, the Property, or any other property owned or leased by the
Landlord, by reason of labor or materials provided for the Tenant or any of
its contractors or subcontractors (other than labor or materials provided by
the Landlord pursuant to the provisions of this Lease), or otherwise arising
out of the Tenant's use or occupancy of the Premises or any other portion of
the Property, and (b) defend, indemnify and hold harmless the Landlord
against and from any and all liability, claim of liability or expense
including, by way of example rather than of limitation, that of reasonable
attorneys' fees incurred by the Landlord on account of any such lien or claim.
-7-
9.5. FIXTURES. Any and all improvements, repairs, alterations and all
other property attached to or otherwise installed as a fixture within the
Premises by the Landlord or the Tenant shall, immediately on the completion
of their installation, become the Landlord's property without payment
therefor by the Landlord, except that any machinery, equipment or fixtures
installed by the Tenant at no expense to the Landlord and used in the conduct
of the Tenant's trade or business rather than to service the Premises or any
of the remainder of the Building or the Property generally shall remain the
Tenant's property, and shall be removed by the Tenant at the end of the Term.
9.6. MATERIALS USED. Any improvements made to the Premises by either
party hereto shall be made only in a good and workmanlike manner, using new,
first-class materials.
Section 10. MAINTENANCE AND SERVICES.
10.1. JANITORIAL AND TRASH REMOVAL.
10.1.1. The Landlord shall provide janitorial service and trash removal
service. Landlord shall strip the production area floor on a quarterly basis.
Tenant will be responsible for the cost of its trash dumpster.
10.2. MAINTENANCE BY TENANT. The Tenant shall maintain the nonstructural
parts of the interior of the Premises in good repair and condition, ordinary
wear and tear excepted. Tenant shall also be responsible for the care and
cleaning of its production room floor.
10.3. MAINTENANCE BY LANDLORD. The Landlord shall furnish, supply and
maintain in good order and repair (a) the roof, structure and remainder of
the exterior of the Building, (b) any and all hallways, stairways, lobbies,
elevators, sanitary sewer and water lines and facilities, restroom
facilities, grounds, sidewalks (including the removal of snow from such
sidewalks), (c) the plumbing, electrical and HVAC systems within the Building
including the Premises and other common areas, all if located within the
Building or the rest of the Property but not within the Premises unless
stated otherwise in the Lease, all at the Landlord's expense except for so
much of such expense as is to be borne by the Tenant under the provisions of
Section 4.1.5. or any other provision of this Lease.
Section 11. LANDLORD'S RIGHT OF ENTRY.
With reasonable notice except in the case of bona fide emergencies the
Landlord and its agents shall be entitled to enter the Premises at any time
during the Tenant's business hours and at any other reasonable time (a) to
inspect the Premises, (b) to exhibit the Premises to any existing or
prospective purchaser, tenant or Mortgagee thereof, (c) to make any
alteration, improvement or repair to the Building or the Premises, or (d) for
any other purpose relating to the operation or maintenance of the Property;
provided, that the Landlord use reasonable efforts to avoid thereby
interfering more than is reasonably necessary with the Tenant's use and
enjoyment thereof.
Section 12. FIRE AND OTHER CASUALTIES.
12.1. GENERAL. If the Premises are damaged by fire or other casualty
during the Term,
12.1.1. the Landlord shall restore the Premises with reasonable
promptness taking into account the time required by the Landlord to effect a
settlement with, and to procure any insurance proceeds from, any insurer
against such casualty, but in any event within one hundred eighty (180) days
after the date of such casualty to substantially the condition of the
Premises immediately before such casualty, and may temporarily enter and
possess any or all of the Premises for such purpose provided, that the
Landlord shall not be obligated to repair, restore or replace any fixture,
improvement, alteration, furniture or other property owned, installed or made
by the Tenant, but
12.1.2. the times for commencement and completion of any such
restoration shall be extended for the period not longer than sixty (60) days
of any delay occasioned by the Landlord in doing so arising out of any of the
causes enumerated in the provisions of subsection 9.1. If the Landlord
undertakes to restore the Premises and such restoration is not accomplished
within the said period of one hundred eighty (180) days plus the period of
any extension thereof, as aforesaid, the Tenant may terminate this Lease by
giving written notice thereof to the Landlord within thirty (30) days after
the expiration of such period, as so extended; and
12.1.3. so long as the Tenant is deprived of the use of any or all
of the Premises on account of such casualty, the Base Rent and any Additional
Rent payable under the provisions of subsection 4.1.4 shall be abated in
proportion to the number of square feet of the Premises rendered
substantially unfit for occupancy by such casualty, unless, because of any
such damage, the undamaged portion of the Premises is made materially
unsuitable for use by the Tenant for the purposes set forth in the provisions
of Section 5, in which event the Base Rent and any such Additional Rent shall
be abated entirely during such period of deprivation.
12.2. SUBSTANTIAL DESTRUCTION. Anything contained in the foregoing
provisions of this Section to the contrary notwithstanding,
12.2.1. if during the Term the Building is so damaged by fire or
other casualty that (a) either the
-8-
Premises or (whether or not the Premises are damaged) the Building are
rendered substantially unfit for occupancy, as reasonably determined by the
Landlord, or (b) the Building is damaged to the extent that the Landlord
reasonably elects to demolish the Building, or if any Mortgagee requires that
any or all of such insurance proceeds be used to retire any or all of the
debt secured by its Mortgage, then in any such case the Landlord may elect to
terminate this Lease as of the date of such casualty, by giving written
notice thereof to the Tenant within thirty (30) days after such date; and
12.2.2. in such event, (a) the Tenant shall pay to the Landlord the
Base Rent and any Additional Rent payable by the Tenant hereunder and accrued
through the date of such termination, (b) the Landlord shall repay to the
Tenant any and all prepaid Rent for periods beyond such termination, and (c)
the Landlord may enter upon and repossess the Premises without further notice.
12.3. TENANT'S NEGLIGENCE. Anything contained in any provision of this
Lease to the contrary notwithstanding, if any such damage to the Premises,
the Building or both are caused by or result from the negligent or
intentionally tortious act or omission of the Tenant, those claiming under
the Tenant or any of their respective officers, employees, agents or
invitees, (a) the Rent shall not be suspended or apportioned as aforesaid,
and (b) except if and to the extent that the Tenant is released from
liability therefor pursuant to the provisions of subsection 8.4, the Tenant
shall pay to the Landlord upon demand, as Additional Rent, the cost of (i)
any repairs and restoration made or to be made as a result of such damage.
Section 13. CONDEMNATION.
13.1 RIGHT TO AWARD.
13.1.1. If any or all of the Premises or the remainder of the
Property are taken by the exercise of any power of eminent domain or are
conveyed to or at the direction of any governmental entity under a threat of
any such taking (each of which is hereinafter referred to as a
"Condemnation"), the Landlord shall be entitled to collect from the
condemning authority thereunder this entire amount of any award made in any
such proceeding or as consideration for such conveyance, without deduction
therefrom for any leasehold or other estate or right held by the Tenant under
this Lease.
13.1.2. The Tenant hereby (a) assigns to the Landlord all of the
Tenant's right, title and interest, if any, in and to any such award; (b)
waives any right which it may otherwise have in connection with such
Condemnation, against the Landlord or such condemning authority, to any
payment for (i) the value of the then-unexpired portion of the Term, (ii)
leasehold damages, and (iii) any damage to or diminution of the value of the
Tenant's leasehold interest hereunder or any portion of the Premises not
covered by such Condemnation, and (c) agrees to execute any and all further
documents which may be required to facilitate the Landlord's collection of
any and all such awards.
13.1.3. Subject to the operation and effect of the foregoing
provisions of this Section, the Tenant may seek, in a separate proceeding, a
separate award on account of any damages or costs incurred by the Tenant as a
result of any Condemnation of any or all of the Premises, so long as such
separate award in no way diminishes any award or payment which the Landlord
would otherwise receive as a result of such Condemnation.
13.2. EFFECT OF CONDEMNATION.
13.2.1. If (a) all of the Premises are covered by a Condemnation,
or (b) any part of the Premises is covered by a Condemnation and the
remainder thereof is insufficient for the reasonable operation therein of the
Tenant's business, or (c) any of the Building is covered by a Condemnation
and, in the Landlord's reasonable opinion, it would be impractical to restore
the remainder thereof, or (d) any of the rest of the Property is covered by a
Condemnation and, in the Landlord's reasonable opinion, it would be
impractical to continue to operate the remainder of the Property thereafter,
then, in any such event, the Term shall terminate on the date on which
possession of so much of the Premises, the Building or the rest of the
Property, as the case may be, as is covered by such Condemnation is taken by
the condemning authority thereunder, and all Rent (including, by way of
example rather than of limitation, any Additional Rent payable under the
provisions of subsection 4.1.4, taxes and other charges payable hereunder
shall be apportioned and paid to such date.
13.2.2. If there is a Condemnation and the Term does not terminate
pursuant to the foregoing provisions of this subsection, the operation and
effect of this Lease shall be unaffected by such Condemnation, except that
the Base Rent and any Additional Rent payable under the provisions of
subsection 4.1.4 shall be reduced in proportion to the square footage of
floor area, if any, of the Premises covered by such Condemnation.
13.3. If there is a Condemnation, the Landlord shall have no liability
to the Tenant on account of any (a) interruption of the Tenant's business
upon the Premises, (b) diminution in the Tenant's ability to use the
Premises, or (c) other injury or damage sustained by the Tenant as a result
of such Condemnation.
13.4. Except for any separate proceeding brought by the Tenant under the
provisions of paragraph 13.1.3, the Landlord shall be entitled to conduct any
such condemnation proceeding and any settlement thereof free of interference
from the Tenant, and the Tenant hereby waives any right which it otherwise
has to participate therein.
-9-
Section 14. ASSIGNMENT AND SUBLETTING.
a) Tenant shall not assign its interest in nor sublet the Premises in
whole or in part without the Landlord's prior written consent first had and
obtained, which consent shall not be unreasonably withheld. In the event the
Premises are sublet or assigned, Tenant shall continue to be and remain
liable to the Landlord for the performance of all it its obligations,
covenants and conditions of this Lease, notwithstanding the fact that the
assignment or subletting is made with the Landlord's consent. Any assignment
or sale under execution or other legal process or by virtue of bankruptcy or
insolvency not in the ordinary course of business, or the appointment of a
trustee or a receiver, voluntarily or involuntarily, by operation of law or
otherwise, shall be deemed an assignment within the meaning of this section.
Notwithstanding the aforegoing, Tenant shall have the right to assign this
Lease or any of its rights hereunder or sublease any or all of the Premises
to any subsidiary, affiliate or related company of the Tenant without the
consent of the Landlord.
b) Tenant shall pay to Landlord, all reasonable costs and expenses,
including reasonable attorney's fees incurred by Landlord, in connection with
any subleasing of the Premises or any part thereof or any assignment of this
Lease by the Tenant, such subletting or assignment being subject to the prior
written consent of the Landlord as hereinabove provided. In the event
Landlord gives Tenant consent for subleasing of the Premises or assignment of
this Lease, that consent shall not be considered as consent to any future
assignment or subletting.
c) In the event Tenant assigns this Lease or any of its rights hereunder
or subleases any or all of the Premises, and Landlord consents to such
assignment or sublease, Tenant shall furnish to Landlord as part of said
consent request the proposed terms of the assignment of sublease. In the
event that the amount of base rent received by Tenant as Sublessor or
Assignor is greater than the Base Rent paid by Tenant under Section 4
hereunder, such amount above the base rental payments and additional rent
shall be shared equally between Landlord and Tenant after deducting any
marketing or Tenant Improvement costs incurred by Tenant. Such sum is due
Landlord (1) in the event of a sum paid Tenant for its rights under this
Lease, immediately at the commencement of such assignment of sublease; or (2)
payable monthly on the same date the Base Rent under this Lease is due.
Section 15. SUBORDINATION; ATTORNMENT AND NON-DISTURBANCE.
15.1 SUBORDINATION. This Lease shall be subject and subordinate to the
lien, operation and effect of each mortgage, deed of trust, ground lease
and/or other, similar instrument of encumbrance now or at any time hereafter
during the Term covering any or all of the Premises or the remainder of the
Property and each renewal, modification, consolidation, replacement or
extension thereof (each of which is herein referred to as a "Mortgage"), all
automatically and without the necessity of any action by either party hereto.
15.2 ATTORNMENT AND NON-DISTURBANCE. The tenant shall, promptly after
receipt of written notice provided in accordance with Lease Section 19
containing the request of the Landlord or the holder of any Mortgage (herein
referred to as a "Mortgage"), execute, enseal, acknowledge and deliver such
further instrument or instruments
15.2.1. evidencing subordination as the Landlord or such Mortgagee
deems necessary or desirable, and
15.2.2. at such Mortgagee's request attorning to such Mortgagee,
provided that such Mortgagee agrees with the Tenant that such Mortgagee will,
in the event of a foreclosure of any such mortgage or deed of trust or
termination of any such ground lease take no action to interfere with the
Tenant's rights hereunder, except on the occurrence of an Event of Default.
15.3. Anything contained in the provisions of this Section to the
contrary notwithstanding, any Mortgagee may at any time subordinate the lien
of its Mortgage to the operation and effect of this Lease without obtaining
the Tenant's consent thereto, by giving the Tenant written notice thereof, in
which event this Lease shall be deemed to be senior to such Mortgage without
regard to their respective dates of execution, delivery and/or recordation
among the Land Records of the said County, and thereafter such Mortgagee
shall have the same rights as to this Lease as it would have had, were this
Lease executed and delivered before the execution of such Mortgage.
Section 16. DEFAULT.
16.1. DEFINITION: As used in the provisions of this Lease, each of the
following events shall constitute, and is hereinafter referred to as, an
"Event of Default":
16.1.1. If the Tenant fails to (a) pay any Rent or any other sum
which it is obligated to pay by any provision of this Lease, when and as due
and payable hereunder and without demand therefor, or (b) perform any of its
other obligations under the provisions of this Lease; or
16.1.2. if the Tenant (a) applies for or consents to the
appointment of a receiver, trustee or liquidator of the Tenant or of all or a
substantial part of its assets, (b) files a voluntary petition in bankruptcy
or admits in writing its inability to pay its debts as they come due, (c)
makes an assignment for the benefit of its creditors, (d) files a petition or
an answer seeking a reorgnization or an arrangement with creditors, or seeks
to take advantage of any insolvency law, (e) performs any other act of
bankruptcy, or (f) files an answer admitting the
-10-
material allegations of a petition filed against the Tenant in any
bankruptcy, reorganization or insolvency proceeding; or
16.1.3. if (a) an order, judgment or decree is entered by any court
of competent jurisdiction adjudicating the Tenant a brankrupt or an
insolvent, approving a petition seeking such a reorganization, or appointing
a receiver, trustee or liquidator of the Tenant or of all or a substantial
part of its assets, or (b) there otherwise commences as to the Tenant or any
of its assets any proceeding under any bankruptcy, reorganization,
arrangement, insolvency, readjustment, receivership or similar law, and if
such order, judgment, decree or proceeding continues unstayed for more than
sixty (60) consecutive days after any stay thereof expires; or
16.2. NOTICE TO TENANT; GRACE PERIOD. Anything contained in the
provisions of this Section to the contrary notwithstanding, on the occurrence
of an Event of Default the Landlord shall not exercise any right or remedy on
account thereof which it holds under any provision of this Lease or
applicable law unless and until
16.2.1. the Landlord has given written notice thereof to the
Tenant, and
16.2.2. the Tenant has failed, (a) if such Event of Default
consists of a failure to pay money, within ten (10) days thereafter to pay
all of such money, or (b) if such Event of Default consists of something
other than a failure to pay money, within thirty (30) days thereafter to cure
such Event of Default or, if and only if such Event of Default is not
reasonably curable within such period of thirty (30) days, to proceed within
such period actively, diligently and in good faith to begin to cure such
Event of Default and to continue thereafter to do so until it is fully cured.
16.2.3. No such notice shall be required to be given, and even if
the Landlord gives such notice the Tenant shall be entitled to no such grace
period, (1) in any emergency situation in which, in the Landlord's reasonable
judgment, it is necessary for the Landlord to act to cure such Event of
Default without giving such notice, or (ii) more than twice during any twelve
(12) month period.
16.3. LANDLORD'S RIGHTS ON EVENT OF DEFAULT.
16.3.1. On the occurrence of any Event of Default, the Landlord may
subject to the operation and effect of the provisions of subsection 16.2 take
any or all of the following actions:
(a) reenter and repossess any or all of the Premises and any
or all improvements thereon and additions thereto; and/or
(b) terminate this Lease by giving written notice of such
termination to the Tenant, which termination shall be effective as of the
date of such notice or any later date therefor specified by the Landlord
therein provided, that without limiting the generality of the foregoing
provisions of this subparagraph 16.3.1(c), the Landlord shall not be deemed
to have accepted any abandonment or surrender by the Tenant of any or all of
the Premises or the Tenant's leasehold estate under this Lease unless the
Landlord has so advised the Tenant expressly and in writing, regardless of
whether the Landlord has reentered or relet any or all of the Premises or
exercised any or all of the Landlord's other rights under the provisions of
this Section or applicable law; and/or
(c) in the Landlord's own name but either (i) as agent for the
Tenant, if this Lease has not then been terminated, or (ii) on the Landlord's
own behalf, if this Lease has then been terminated, relet any or all of the
Premises with or without any additional premises, for any or all of the
remainder of the Term or, if this Lease has then been terminated, for any or
all of the period which would, but for such termination, have constituted the
remainder of the Term or for a period exceeding such remainder, on such terms
and subject to such conditions as are acceptable to the Landlord in its sole
and absolute discretion including, by way of example rather than of
limitation, the alteration of any or all of the Premises in any manner which,
in the Landlord's judgment, is necessary or desirable as a condition to or
otherwise in connection with such reletting, and the allowance of one or more
concessions or "free-rent" or reduced-rent periods, and collect and receive
the rents therefor. Anything contained in the provisions of this Lease or
applicable law to the contrary notwithstanding, (1) the Landlord shall not
have any duty or obligation to relet any or all of the Premises as the result
of any Event of Default, or any liability to the Tenant or any other person
for any failure to do so or to collect any rent or other sum due from any
such reletting; (ii) the Tenant shall have no right in or to any surplus
which may be derived by the Landlord from any such reletting, in the event
that the proceeds of such reletting exceed any Rent, installment thereof or
other sum owed by the Tenant to the Landlord hereunder; and (iii) the
Tenant's liability hereunder shall not be diminished or affected by any such
failure to relet or the giving of any such initial or other concessions or
"free-rent" or reduced rent period in the event of any such reletting. In
such event, the Tenant shall pay to the Landlord, at the times and in the
manner specified by the provisions of Section 2, both (i) the installments of
the Base Rent and any Additional Rent accruing during such remainder or, if
this Lease has then been terminated, damages equaling the respective amounts
of such installments of the Base Rent and any Additional Rent which would
have accrued during such remainder, had this Lease not been terminated, less
any monies received by the Landlord with respect to such remainder from such
reletting of any or all of the Premises, plus (ii) the cost to the Landlord
of any such reletting (including, by way
-11-
of example rather than of limitation, any attorneys' fees, leasing or
brokerage commissions, repair or improvement expenses and the expense of any
other actions taken in connection with such reletting), plus (iii) any other
sums for which the Tenant is liable under the provisions of paragraph 16.3
and the Tenant hereby waives any and all rights which it may have under
applicable law, the exercise of which would be inconsistent with the
foregoing provisions of this subparagraph 16.3.1(d); and/or
(d) cure such Event of Default in any other manner; and/or
(e) pursue any combination of such remedies and/or any other
right or remedy available to the Landlord on account of such Event of Default
under this Lease and/or at law or in equity.
(f) collect entire amount of rent due for the remainder of the
lease term at time of default.
16.3.2. No such expiration or termination of this Lease, or summary
proceedings, abandonment or vacancy, shall relieve the Tenant of any of its
liabilities and obligations under this Lease (whether or not any or all of
the Premises are relet); accordingly, in any such event the Tenant shall pay
to the Landlord the Rent and all other charges required to be paid by Tenant
up to the time of such event, and thereafter
(a) at any time after the expiration or termination of this
Lease pursuant to this Section 16, in lieu of collecting any further monthly
installments, as aforesaid, the Landlord shall be entitled to recover from
the Tenant, and the Tenant shall pay to the Landlord, on demand, damages
computed in the manner set forth in clause (i) of subparagraph 16.3.2(b),
minus the amount of any such monthly installments previously recovered from
the Tenant; and
(b) in the case of any Event of Default under the provisions
of paragraphs 16.1.2 or 16.1.3, the Landlord shall immediately and
automatically, without the necessity of notice or other action by the
Landlord, become entitled to recover from the Tenant as damages for such
breach, in addition to any damages or other payments becoming due from the
Tenant under any other provision of this Lease, an amount equaling the
difference between the Base Rent and the Additional Rent reserved in this
Lease from the date of such breach to the date of the expiration of the Term
and the then-fair and reasonable rental value of the Premises for the same
period. Such damages shall become due and payable to the Landlord immediately
upon the occurrence of such Event of Default and without regard to whether
or, if so, how this Lease is terminated.
16.3.3. Each party hereto hereby waives any right which it may
otherwise have at law or in equity to a trial by jury in connection with any
suit or proceeding at law or in equity brought by the other against the
waiving party or which otherwise relates to this Lease, as a result of an
Event of Default or otherwise.
16.4. DEFAULT BY LANDLORD. If the Landlord violates any of its
obligations under the provisions of this Lease, the Tenant may (subject to
the operation and effect of the provisions of paragraph 4.2.3, requiring the
Tenant to pay all Rent when due, which deduction or set-off whatsoever)
exercise any right or remedy which it holds on account thereof hereunder, at
law or in equity; provided, that if any or all of the Premises is then
subject to any first Mortgage, the Tenant shall not exercise any of its
rights or remedies on account thereof unless and until it has given written
notice of its intention to do so, by certified or registered mail, return
receipt requested, to the Mortgagee under such first Mortgage, specifying
therein the nature of such default in reasonable detail, and unless such
Mortgagee has not cured such default on the Landlord's behalf within thirty
(30) days after such notice is given. See Rider 8
Section 17. ESTOPPEL CERTIFICATE.
The Tenant shall from time to time, within ten (10) days after being
requested to do so by written notice provided in accordance with Lease
Section 19, by the Landlord or any Mortgagee, execute, enseal, acknowledge
and deliver to the Landlord or, at the Landlord's request, to any existing or
prospective purchaser, transferee, assignee or Mortgagee of any or all of the
Premises, the Property, any interest therein or any of the Landlord's rights
under this Lease an instrument in recordable form,
17.1. certifying (a) that this Lease is unmodified and in full force and
effect or, if there has been any modification thereof, that it is in full
force and effect as so modified, stating therein the nature of such
modification; (b) as to the dates to which the Base Rent and any Additional
Rent and other charges arising hereunder have been paid; (c) as to the amount
of any prepaid Rent or any credit due to the Tenant hereunder; (d) that the
Tenant has accepted possession of the Premises, and the date on which the
Term commenced; (e) as to whether, to the best knowledge, information and
belief of the signer of such certificate, the Landlord or the Tenant is then
in default in performing any of its obligations hereunder and, if so,
specifying the nature of each such default; and (f) as to any other fact or
condition reasonably requested by the Landlord or such other addressee; and
17.2. acknowledging and agreeing that any statement contained in such
certificate may be relied upon by the Landlord and any such other addressee.
-12-
Section 18. QUIET ENJOYMENT.
The Landlord hereby covenants that the Tenant, on paying the Rent and
performing the covenants set forth herein, shall peaceably and quietly hold
and enjoy, throughout the Term, (a) the Premises, and (b) such rights as the
Tenant may hold hereunder with respect to the remainder of the Property.
Nothing in the provisions of this Lease shall be deemed to impose upon the
Landlord any liability on account of any act or failure to act by any person
other than the Landlord or, where expressly so provided herein, the
Landlord's agents and employees.
Section 19. INTENTIONALLY OMITTED
Section 20. NOTICES.
Any notice, demand, consent, approval, request or other communication or
document to be provided hereunder to a party hereto shall be (a) in writing,
and (b) deemed to have been provided (i) (1) forty-eight (48) hours after
being sent as certified or registered mail in the United States mails,
postage prepaid, return receipt requested, or (2) the next business day after
having been deposited in time for delivery by such service on such business
day with Federal Express or another national courier service, or (3) if such
party's receipt thereof is acknowledged in writing upon having been sent by
telefax or another means of immediate electronic communication, in each case
to the address of such party set forth hereinabove or to such other address
in the United States of America as such party may designate from time to
time by notice to each other party hereto, or (ii) upon being given by hand
or other actual delivery with a written acknowledgement of receipt to such
party. See Rider 14
Section 21. GENERAL.
21.1. EFFECTIVENESS. This lease shall become effective upon and only
upon its execution and delivery by each party hereto.
21.2. COMPLETE UNDERSTANDING. This Lease represents the complete
understanding between the parties hereto as the subject matter hereof, and
supersedes all prior written or oral negotiations, representations,
warranties, statements or agreements between the parties hereto as to the
same. No inducements, representations, understandings or agreements have been
made or relied upon in the making of this Lease, except those specifically
set forth in the provisions of this Lease. Neither party hereto has any right
to rely on any other prior or contemporaneous representation made by anyone
concerning this Lease which is not set forth herein.
21.3. AMENDMENT. This lease may be amended by and only by an instrument
executed and delivered by each party hereto.
21.4. APPLICABLE LAW. This Lease shall be given effect and construed by
application of the law of Maryland, and any action or proceeding arising
hereunder shall be brought in the courts of Maryland; provided, that if such
action or proceeding arises under the Constitution, laws or treaties of the
United States of America, or if there is a diversity of citizenship between
the parties thereto, so that it is to be brought in a United States District
Court, it shall be brought in the United States District Court for the
District of Maryland or any successor federal court having original
jurisdiction.
21.5 WAIVER. The Landlord shall not be deemed to have waived the
excercise of any right which it holds hereunder unless such waiver is made
expressly and in writing (and no delay or omission by the Landlord in
excercising any such right shall be deemed a waiver of its future excercise).
No such waiver made as to any instance involving the excercise of any such
right shall be deemed a waiver as to any other such instance, or any other
such right. Without limiting the generality of the foregoing, no action taken
or not taken by the Landlord under the provisions of this Section or any
other provision of this Lease including, by way of example rather than of
limitation, the Landlord's acceptance of the payment of Rent after the
occurrence of any Event of Default shall operate as a waiver of any right to
be paid a late charge or any other right or remedy which the Landlord would
otherwise have against the Tenant on account of such Event of Default under
the provisions of this Lease or applicable law the Tenant hereby
acknowledging that, in the interest of maintenance of good relations between
the Landlord and the Tenant, there may be instances in which the Landlord
chooses not immediately to excercise some or all of its rights on occurrence
of an Event of Default.
21.6. TIME OF ESSENCE. Time shall be of the essence of this Lease.
21.7. HEADINGS. The headings of the Sections, subsections, paragraphs
and subparagraphs hereof are provided herein for and only for convenience of
reference, and shall not be considered in construing their contents.
21.8. DEFINITIONS. As used herein, (a) the term "person" means a natural
person, a trustee, a corporation, a partnership and any other form of legal
entity; and (b) all references made (i) in the neuter, masculine or feminine
gender shall be deemed to have been made in all such genders, (ii) in the
singular or plural number shall be deemed to have been made, respectively, in
the plural or singular number as well, and (iii) to any Section, subsection,
paragraph or subparagraph shall, unless therein expressly indicated to the
contrary, be deemed to have been made to such Section, subsection, paragraph
or subparagraph of this Lease.
-13-
21.9. EXHIBITS. Each writing or plat referred to herein as being
attached hereto as an exhibit or otherwise designated herein as an exhibit
hereto is hereby made a part hereof.
21.10. SEVERABILITY. No determination by any court, governmental body or
otherwise that any provision of this Lease or any amendment hereof is invalid
or unenforceable in any instance shall affect the validity or enforceability
of (a) any other such provision, or (b) such provision in any circumstance
not controlled by such determination. Each such provision shall be valid and
enforceable to the fullest extent allowed by, and shall be construed wherever
possible as being consistent with, applicable law.
21.11. DEFINITION OF "THE TENANT". As used herein, the term "the Tenant"
means each person hereinabove named as such and such person's heirs, personal
representatives, successors and assigns, each of whom shall have the same
obligations, liabilities, rights and priveleges as it would have possessed
had it originally executed this Lease as the Tenant; provided, that no such
right or privilege shall inure to the benefit of any assignee of the Tenant,
immediate or remote, unless the assignment to such assignee is made in
accordance with the provisions of Section 10. Whenever two or more persons
constitute the Tenant, all such persons shall be jointly and severally liable
for performing the Tenant's obligations hereunder.
Section 22. DELIVERIES. Tenant agrees to use the freight elevator located on
the north side of the building for all of its paper good deliveries.
Section 23. EXPANSION OPTION. Tenant is granted a Right of First Refusal for
the remaining space as outlined in Exhibit B. In this event, Landlord agrees
to notify Xxxxxx Xxxx of the potential leaseup of the remaining space on the
second floor of 22 Light Street. In the event Tenant is interested in leasing
the remaining space on the second floor, then Xxxxxx Xxxx must notify
Landlord within 5 business days, via certified mail, of its intent to lease
the space at its current terms as stipulated in this lease. As far as
buildout is concerned, Landlord will fully buildout the additional space if
the space is leased by Tenant no later than January 1, 2001.
Section 24. MISCELLANEOUS. From time to time, the Tenant may seek to
refinance the certain obligations of the Tenant existing as of the date
hereof. In this regard, Tenant may ask a lender or lenders (the "Lenders") to
provide refinancing for the Tenant, which refinancing may be secured, among
other things, all of Tenant's equipment set forth in Exhibit C attached
hereto, together with all accessions to, products of and proceeds thereof
(collectively the "Collateral"). Future Landlord's waiver shall not be
unreasonably withheld for pieces of equipment which cost in excess of $50,000.
Any Landlord's lien, right of distraint or levy or security interest which
the Landlord may now or hereafter acquire in any of the Collateral for unpaid
rent or otherwise, whether by virtue of a lease, landlord-tenant
relationship, statue or otherwise shall be subordinated Collateral now or
hereafter held by the Lenders.
(Signature follows on page 15)
-14-
IN WITNESS WHEREOF, each part hereto has executed and ensealed this
Lease or caused it to be executed and ensealed on its behalf by its duly
authorized representatives, the day and year first above written.
WITNESS or ATTEST:
/s/ Xxxxx Tonloumes By: /s/ Xxxxxx Xxxxxx (SEAL)
------------------------------ ---------------------------------
Tenant
Xxxxxxx Xxxxxxxx, Executive Vice
President
On-Site Sourcing, Inc.
/s/ Xxxxxxx X'Xxxxx By: /s/ [Illegible] (SEAL)
------------------------------ ----------------------------------
Landlord
Xxx X. Xxxxxx
Managing Member
22 Light Street, LLC
As condition to entering into this Lease Agreement, On-Site Sourcing, Inc.
has agreed to guarantee the full and timely payment of all monies due to
Landlord as stipulated in this Lease.
/s/ [Illegible]
----------------------------------
On-Site Sourcing, Inc.
STATE OF VIRGINIA
------------
CITY/COUNT OF ARLINGTON
-------------
I HEREBY CERTIFY that on this 22nd day of August, 1997, before me the
undersigned officer, personally appeared who acknowledged himself/herself to
be the VP-Finance of On-Site Sourcing, Inc., and that (s)he, in such
capacity, being authorized to do so, executed the foregoing instrument for
the purposes therein contained, by signing his/her name as Xxxxxx Xxxxxx of
On-Site Sourcing, Inc.
IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal.
/s/ Xxxxx Xxxxxx Xxxxxx
-----------------------------
Notary Public
My Commission expires: March 31, 2001
-15-
