EXHIBIT 10.20
LEASE AGREEMENT
THIS LEASE AGREEMENT, made on the 3rd day of June, 1999, by and between KA
REAL ESTATE ASSOCIATES, LLC, a Maryland corporation, having an office address at
00000 Xxxxx Xxxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000 (hereinafter called
Landlord) and AVESIS INCORPORATED having an office at 00000 Xxxxx Xxxxxxxx Xxxx,
Xxxxxx Xxxxx, Xxxxxxxx 00000 (hereinafter collectively called Tenant).
WITNESSETH: That in consideration of the rents, covenants and agreements
herein contained, on the part of Tenant to be performed, Landlord does hereby
lease unto the said Tenant the premises known as 00000 Xxxxx Xxxxxxxx Xxxx,
Xxxxxxxxx Xxxxxx, Xxxxxxxx 00000 (Office), as shown on Exhibit A, space plan,
containing approximately 1,500 square feet (Premises).
TERM The term of the lease shall be for five (5) years beginning on
November 1, 1999 and terminating on October 31, 2004.
RENT Tenant shall pay rent to Landlord at the rental rate of TWELVE DOLLARS
TWENTY-FIVE CENTS ($12.25) cents per square foot of floor space in the
Premises or EIGHTEEN THOUSAND THREE HUNDRED SEVENTY-FIVE DOLLARS
($18,375.00) for the first year of this lease. The rental rate shall
increase by THREE PERCENT (3%) per annum for each subsequent year of
the lease. Rent is to be paid in equal monthly installments, in
advance, on the first day of the month as follows: Rent shall be paid
to Landlord at its office at 00000 Xxxxx Xxxxxxxx Xxxx, Xxxxxx Xxxxx,
Xxxxxxxx 00000, or to such other appointee as Landlord may from time
to time designate in writing.
THE TENANT COVENANTS AND AGREES WITH THE LANDLORD AS FOLLOWS:
1. RENT PAYMENTS. Tenant shall pay rent when due, without deduction or set
off.
2. USE. Tenant shall use and occupy the Premises solely for the following
purposes: administrative offices and for no other purpose or purposes.
3. UTILITIES/TRASH/JANITORIAL. (a) Tenant shall pay for its proportionate
share of all gas, electricity, telephone and other utilities used in or about
the Premises for the aforesaid permitted purpose. Accounts must be opened in
Tenant's name with the company that supplies the utilities, except with respect
to water and sewer (if no separate meter is provided) Landlord will xxxx Tenant
monthly or quarterly on the basis of a meter reading and Tenant will pay
Landlord directly for said water and sewer charges within ten (10) days after
receipt of Landlord's billing. The parties acknowledge that the Premises are
served by a separate meter for water and sewer.
(b) Tenant hereby covenants, at its expense, to provide its
own janitorial service, and to keep the Premises, both inside and
out, clean at all times and agrees that it will at all times keep
such Premises in a clean, neat and orderly manner and that it
will remove all refuse, garbage and trash from the interior of
the Premises and the adjacent areas and will see that the same is
removed daily, at its expense. Tenant shall provide at its
expense, trash receptacles required by Landlord, including but
not limited to commercial trash dumpsters or similar receptacles.
All trash receptacles must be approved by Landlord and shall be
located in such places as Landlord shall designate. Tenant shall
maintain such receptacles and the designated location thereof in
a neat, clean and secure condition at all times. Tenant shall, at
its expense, provide for the pickup and removal of its trash. In
the event Tenant's trash is not removed in the manner aforesaid,
Landlord shall be entitled to remove or cause to be removed the
trash of tenant and Tenant shall pay to Landlord as additional
rent the cost incurred by Landlord for such removal, plus twenty
percent (20%) overhead and administrative expenses.
4. COMPLIANCE WITH LAWS. Tenant shall observe, comply with and execute at
its expense, all laws and valid and lawful rules, requirements and regulations
of the United States, State, City and County in which the Premises are located,
and of any and all governmental authorities or agencies and of any board of fire
underwriters or other similar organization, respecting the Premises hereby
leased and the manner in which said Premises are or should be used by Tenant.
5. ASSIGNMENT/SUBLETTING. Tenant shall not assign this Lease, in whole or
in part, nor sublet the Premises, or any part or portion thereof, without
Landlord's prior written consent, which consent shall not be unreasonably
withheld. If such assignment or subletting is permitted, Tenant shall not be
relieved from any liability whatsoever under this Lease. Any transfer of a
majority of ownership in Tenant, if Tenant is a corporation or a partnership,
even by merger or consolidation, shall be deemed an assignment pursuant to this
Section.
6. FLOOR LOAD. Tenant shall not load the Premises hereby leased beyond its
present carrying capacity. Any damage resulting from overloading the floors or
walls of the Premises will be charged to Tenant.
THE PARTIES HERETO FURTHER COVENANT AND AGREE WITH EACH OTHER AS FOLLOWS:
7. TENANT'S INSURANCE; INDEMNITY. (a) Tenant shall indemnify and save
harmless Landlord, its successors or assigns, from all claims and demands of
every kind that may be brought against it, them, or any of them for or on
account of any damage, loss or injury to persons or property in or about the
Premises during the continuance of it tenancy, or during the time of any
alterations, repairs or improvements or restorations to said property by Tenant
and arising in connection therewith and from any and all costs and expenses and
other charges which may be imposed upon Landlord, its successors or assigns, or
which it or they may be obligated to incur in consequence thereof. Tenant shall
at all times carry and pay for a public liability insurance policy protecting
Landlord and specifically covering the above indemnity agreement on the part of
Tenant, with limits of $1,000,000.00 and $3000,000.00 for personal injury and
$100,000.00 for property damage, and will furnish Landlord with certificate of
such policy and any renewal thereof, naming Landlord as a certificate holder and
an Additional Insured. Such policy shall provide that Landlord will be given ten
(10) days' notice of any cancellation, modification or surrender. All personal
property and fixtures in the Premises shall remain at Tenant's sole risk. Tenant
shall insure such property and fixtures against loss or damage by fire and
casualties ordinarily included in the extended coverage endorsement in use in
Maryland in an amount equal to 100% of the replacement value thereof. Landlord
shall not be liable for any damage or loss arising from the bursting,
overflowing or leaking of the roof or of water, sprinkler, sewer or steam pipes,
or for malfunctioning heating, air conditioning or plumbing fixtures or from
electric wire or fixtures or arising from any other cause whatsoever, unless
caused by Landlord's negligent or willful misconduct.
(b)Tenant shall not do anything in or about said Premises that will
contravene or affect any policy of insurance against loss by fire or other
hazards, including but not limited to, public liability, now existing or
which Landlord may hereafter place thereon, or which will prevent Landlord
from procuring such policies in companies acceptable to Landlord; and
Tenant shall do everything reasonably possible and consistent with the
conduct of Tenant's business, as above limited, so as to obtain the
greatest possible reduction in the insurance rates for Landlord on the
Office of which the Premises hereby leased are a part, and Tenant
further agrees to pay, as additional rental, any increase in the premium of
any insurance on the Premises hereby leased (or if the Premises hereby
leased are a part of a complex, then any increases in the premium of any
insurance on said entire complex) caused by the occupancy of Tenant, the
nature of the business carried on by Tenant in said Premises, or otherwise
resulting from any act of Tenant, its agents, servants, employees or
customers.
(c) Tenant hereby releases Landlord from all liability or
responsibility to Tenant or any person claiming by, through or under Tenant
by way of subrogation or otherwise, for any injury, loss or damage to the
Premises or any part thereof or any property of Tenant in or around the
Premises, or to Tenant's business irrespective of the cause of such injury,
loss or damage, and Tenant shall require its insurer(s) to include in all
Tenant's insurance policies which could give rise to a right of subrogation
against Landlord a clause or endorsement whereby the insurer(s) shall waive
any rights of subrogation against Landlord.
8. ALTERATIONS. Tenant shall not make any alterations (which term shall
include floor and wall coverings) to the Premises without the written consent of
Landlord. If Tenant desires to make any such alterations, the same shall first
be submitted to and approved by Landlord, which approval shall not be
unreasonably withheld, and shall be done by Tenant at it own expense, and Tenant
agrees that all such work shall be done in a good and workmanlike manner, that
the structural integrity of the Premises shall not be impaired, and that no
liens shall attach to the Premises by reason thereof.
9. END OF TERM. Unless Landlord shall elect that all or any part of the
alterations, referred to in or contemplated by the provisions of Section 8,
shall remain, the Premises shall be restored to their original condition (except
as to any part of said alterations which Landlord shall elect to remain) by
Tenant before the expiration of its tenancy, at its own expense, and Tenant
shall repair any damage resulting from the installation or removal of such
alterations.
Notwithstanding the right of Landlord to require the removal thereof, any
such alterations shall become the property of Landlord as soon as they are
affixed to the Premises and all right, title and interest therein of Tenant
shall immediately cease unless otherwise agreed to in writing. The Landlord
shall have the sole right to collect any insurance for damage of any kind to any
of such alterations upon the said Premises by Tenant. If the making of any such
alterations, or the obtaining permits or franchise therefor, shall directly or
indirectly result in a franchise, minor privilege, tangible personal property or
other similar tax or assessment, such tax or assessment shall be paid,
immediately upon its levy, by Tenant.
10. MAINTENANCE. Tenant shall, during the term of this Lease, keep said
Premises and appurtenances (including all appliances and facilities, doors and
doorways, windows, window frames, plate glass, and the heating and air
conditioning system) in good order and condition and will make or pay for its
proportionate share of all necessary repairs thereto, and further, with respect
to the heating and air conditioning system, while Landlord will make available
to Tenant any warranties with respect to said equipment which Landlord receives,
Tenant will be responsible at the expiration of the warranty period, if any, for
maintaining a maintenance contract on said equipment with a heating/air
conditioning contractor acceptable to Landlord. While Tenant is responsible for
keeping its Premises in good order and repair, Landlord specifically agrees that
it will make any necessary repairs to the exterior walls of the building of
which the Premises are a part and to the roof of said building, and further,
that Landlord will maintain the plumbing and electrical systems serving said
building to the point of entry into the Premises, after being notified of the
need for such repairs by Tenant, and provided that none of the required repairs
have been caused by the negligent act or omission of Tenant, its employees or
agents. Landlord may enter the Tenant's Premises at all reasonable times to make
repairs required hereunder, or to inspect the Premises in order to ascertain
that Tenant is carrying out its obligations with respect to maintenance/repair.
Tenant will also not obstruct any walkways made available to it. The Tenant
will, at the expiration of the term or at the sooner termination thereof by any
forfeiture or otherwise, deliver up the Premises in the same good order and
condition as they were at the beginning of the tenancy, reasonable wear and tear
excepted.
11. TAX ESCALATOR. Tenant shall pay as additional rent Tenant's
proportionate share of the real estate taxes assessed against the land and/or
building(s) of the Office. In the event of any increases in real estate taxes
resulting from government assessments, improvements, alterations or additions as
made by Tenant, Tenant shall pay one hundred percent (100%) of the amount of
said increase. If Tenant pays its proportionate share of the taxes based on a
xxxx that is appealed by Landlord and later reduced, then Tenant shall be
entitled to a credit equal to its proportionate share of any refund, after all
costs or fees incurred by Landlord in contesting the real estate tax assessment
are deducted. For purposes of calculating Tenant's "proportionate share" the
real estate tax xxxx will be multiplied by a fraction, the numerator of which
shall be the square footage occupied by Tenant for the real estate tax year in
question and the denominator of which shall be the total leaseable square
footage of the Office, occupied or ready for occupancy. "Taxes" or "real estate
taxes" as used herein shall include, but not by way of limitation, all paving
taxes, special paving taxes, Metropolitan District Charges, and any and all
other benefits or assessments which may be levied on the Premises or the land
and/or building(s) in which the same are situate, as well as any and all costs
or fees incurred by Landlord in contesting any real estate tax assessment, but
shall not include any income tax on the income or rent payable hereunder. Any
payment due hereunder shall be deemed to be additional rental pursuant to this
Lease and shall be paid within ten (10) days of Landlord's billing.
12. INSURANCE ESCALATOR. Landlord may, in its reasonable business judgment,
maintain insurance on the property including but not limited to equipment and
systems in or pertaining to the building or property and including but not
limited to public liability insurance, property damage insurance, automobile
insurance, sign insurance, fire and extended coverage insurance, rent insurance,
boiler liability and casualty insurance, flood and earthquake insurance, and
plate glass insurance. For any insurance maintained by Landlord with respect to
the property and/or its equipment, Tenant agrees to pay as additional rent
Tenant's proportionate share of said premiums for any insurance carried on the
property or any portion thereof. If this Lease shall be in effect for less than
a full insurance year, Tenant shall pay as additional rent its proportionate
share of the insurance premium based upon the number of months that this Lease
is in effect. For purposes of calculating Tenant's "proportionate share", the
insurance premium xxxx will be multiplied by a fraction, the numerator of which
shall be the square footage occupied by Tenant for the insurance year in
question, and the denominator of which shall be the average of all the leasable
square footage in the building occupied by Tenant.
13. DEFAULT. If Tenant fails to pay fixed rental or any other sum required
by the terms of this Lease to be paid by Tenant when the same shall be due, or
if Tenant shall abandon the Premises, then Landlord shall have the immediate
right, without notice, to make distress therefor and, upon such distress, in the
Landlord's discretion, this tenancy shall terminate. If any fixed rental payment
required to be paid by Tenant shall be in arrears more than ten (10) days,
Tenant shall be liable for a late charge of fifteen percent (15%) of the amount
in arrears, which charge shall be collectible as rent. In case Tenant shall fail
to comply with any of the other provisions, covenants or conditions of this
Lease on its part to be kept and performed, and such default shall continue for
a period of ten (10) days after written notice thereof shall have been given to
Tenant by Landlord, or if Tenant fails to pay any sum of money due to Landlord
or others under the terms hereof, when and as such payment is due, then upon the
happening of any such events, the term of this Lease, at the option of Landlord,
shall cease and determine and, from thenceforth, it shall and may be lawful for
Landlord to re-enter into and upon the Premises, or any part thereof, and to
repossess and hold the same as if this Lease had never been executed. If
Landlord incurs any expenses in proceeding against Tenant for any default under
this Lease, then Tenant shall pay Landlord all reasonable expenses, including
counsel and court costs fees incurred with respect to such default.
In addition to the preceding, if Tenant fails to comply with any of the
other provisions, covenants or conditions of this Lease, and Tenant has been
given notice by Landlord and reasonable opportunity to cure, then thereafter and
notwithstanding anything in this Lease to the contrary, Landlord may cure
Tenant's default and Tenant shall owe Landlord any monies which Landlord spends
as a result of Landlord curing Tenant's default, plus fifteen percent (15%)
administrative/overhead costs.
14. CASUALTY. In case of the total destruction of the Premises by fire, the
elements or other cause, or of such damage thereto as shall render the same
totally unfit for occupancy by Tenant, the payment of the rent due hereunder
shall be abated for the period of untenantability, or, at Landlord's option,
Landlord may declare that this Lease, together with the payment of rent then due
and a proportionate part thereof to the date of surrender, shall terminate and
be at an end. If any cause mentioned in the preceding sentence shall render the
Premises partly untenantable, then Landlord shall, at its own expense, restore
the Premises with all reasonable diligence, and the rent shall be abated
proportionately for the period of untenantability and the part of the Premises
untenantable until such improvements shall have been fully restored; provided
that, if neither the Premises nor any part thereof shall be rendered either
wholly or partly untenantable, Landlord shall, at its own expense, restore the
Premises with all reasonable diligence, but the rent shall not be abated to any
extent whatsoever; and provided further that if the cost of restoration of any
such damage to the Premises (based on the estimate of Landlord's insurance
adjuster) exceeds one-half (1/2) of the rent reserved hereunder from the date of
the occurrence of the damage to the expiration of the then current term of this
Lease, then Landlord may, at its option, cancel this Lease.
15. RECEIVERSHIP. In the event of the appointment of a receiver or trustee
for Tenant by any court, Federal or state, in any legal proceedings instituted
by or against it, including proceedings under any provisions of the Bankruptcy
Act, if the appointment of such receiver or such trustee is not vacated within
thirty (30) days, or if Tenant be adjudicated bankrupt or insolvent, or shall
make an assignment for the benefit of its creditors; then, and in any of said
events, Landlord may, at is option, terminate this Lease by ten (10) days'
written notice, and re-enter upon the Premises.
16. POSSESSION. In case possession of or the right to use the Premises, in
whole or in part, cannot be given to Tenant for any reason whatever (including
inability to obtain any occupancy or other necessary permit) on or before the
date specified for the beginning of the term, then Landlord agrees to xxxxx the
rent proportionately until possession is given to Tenant, and Tenant agrees to
accept such pro rata abatement as liquidated damages for the failure to obtain
possession. If Landlord is unable to give Tenant possession of or the right to
use the Premises for more than one hundred eighty (180) days after the date
specified for the beginning of the term, then either party may cancel this Lease
by written notice to the other party, and there shall be no further liability of
either party with respect to this Lease.
17. SIGNS, ETC. Tenant shall not place or permit any signs, lights, awnings
or poles on or about the exterior of the Premises without the written consent of
Landlord, and, if such consent is given, then Tenant agrees to pay any permit
fees and minor privilege or other tax therefor. At its own cost and expense,
Tenant shall install exterior signage over its front and rear entrances to the
Premises. Such signage shall be of Landlord/building standard color, material
and size and the placement of such signage shall be subject to Landlord's
approval. Tenant further covenants and agrees that it will not paint or make any
change in or on the outside of the Premises without the permission of Landlord
in writing. Tenant agrees that it will do nothing on the outside of Premises to
change the uniform architecture, paint or appearance of said Premises, without
the consent of Landlord in writing. In the event of any violation of this
Section 17 by Tenant, then Landlord may take such action as it sees fit to xxxxx
such violation, and Tenant shall pay to Landlord all expenses incurred by
Landlord in taking such action.
18. RULES AND REGULATIONS. Tenant covenants and agrees to abide by the
rules and regulations set forth below in this lease, and any reasonable changes
and additions thereto; and the same shall be deemed to be covenants of this
Lease.
19. LANDLORD ACCESS. Landlord shall have the right to place a "For Sale" or
"For Rent" sign on any portion of the Premises for one hundred eighty (180) days
prior to the final termination of this Lease, and may show the Premises at all
reasonable times to prospective tenants and purchasers.
20. LANDLORD LIABILITY. Tenant shall carry standard fire and extended
coverage insurance on those parts of the Premises and the facilities therein
which were originally constructed and/or installed by Tenant or at Tenant's
expense and on all other leasehold improvements made by it, and on its trade
fixtures, merchandise and other personal property in the Premises for their full
replacement value. Landlord shall not be liable to Tenant for any damage to any
such property from any cause, unless (i) such damage is due to Landlord's
negligence, and (ii) such damage is caused by an occurrence which is not an
insured hazard under the standard fire and extended coverage insurance which is
available for insuring such property of Tenant at the time of the loss; it being
understood that it is not the intention of the parties that Landlord be relieved
from liability to Tenant for negligence contrary to any statute or public policy
of the State of Maryland, but rather that Tenant avail itself of available
insurance coverage without subjecting Landlord to liability for losses that
could have been insured, and without subjecting Landlord to subrogation claims
of any insurer. The Landlord shall not be liable to Tenant for damage to
Tenant's property due to the negligent or intentional acts of any other tenant
in the complex of which the Premises is a part, or to any condition existing on
or emanating from the Premises of any other tenant which is not caused by
Landlord or its agents or contractors, nor shall Tenant be entitled to any
abatement of rent or to claim an actual or constructive eviction, whole or
partial, permanent or temporary, by reason of any such condition or emanating
from such other tenant's Premises.
21. ACCESS. Subject to Landlord not unreasonably interfering with Tenant's
business, Landlord, and its agents, servants and employees, including any
builder or contractor employed by Landlord, shall have, and Tenant hereby gives
them and each of them, the absolute and unconditional right, license and
permission, at any and all reasonable times, and for any reasonable purpose
whatsoever, to enter through, across or upon the Premises hereby leased or any
part thereof and, at the option of Landlord, to make such reasonable repairs to
or changes in the Premises as Landlord may deem necessary or proper.
22. EXPIRATION. The term of this Lease shall expire on October 31, 2004,
without the necessity of any notice by or to any of the parties hereto. If
Tenant shall occupy the Premises after such expiration, in the absence of any
written agreement to the contrary, Tenant shall hold the Premises as a tenant
from month to month, subject to all the other terms and conditions of this
Lease, except that the fixed rent shall be one and one-half (1-1/2)) times the
highest monthly rental reserved in this Lease, provided that Landlord shall,
upon such expiration, be entitled to the benefit of all public general or public
local laws relating to the speedy recovery of the possession of lands and
tenements held over by tenants that may be now in force or may hereafter be
enacted, tenant hereby waiving the necessity of any written notice as a
condition precedent to the institution of any action for speedy recovery of the
Premises by Landlord.
23. CONDEMNATION. If condemnation proceedings are instituted against the
Premises and title taken by any federal, state or municipal body, then this
Lease shall terminate as of the date possession vests in the condemning
authority. Tenant shall not be entitled to share in any part of the award, which
may be received by Landlord for the taking of the fee and Tenant's leasehold
estate. This Section 23 shall apply also in case of any sale of the Premises by
Landlord to a condemning authority under threat of the exercise of the power of
eminent domain.
24. SUBORDINATION. Landlord shall have the right to place a mortgage or
mortgages on the Premises and the property of which the Premises is a part, and
this Lease shall be subordinate to any such mortgage or mortgages or superior
thereto, as the mortgagee(s) may elect from time to time. Notice of such
election shall be given to tenant in connection with any mortgage foreclosure.
25. COMMON AREAS. (a) Tenant, its agents, servants, employees, customers
and invitees, shall have the non-exclusive right to use, in common with others,
the automobile parking areas, driveways, and pedestrian walkways, and for all
other areas, space, facilities, equipment and signs, to the extent made
available by Landlord for the common and joint non-exclusive use and benefit of
landlord, Tenant and other tenants and occupants of the Office and their
respective employees, agents, subtenants, customers and other invitees
(hereinafter collective called "common areas") from time to time made available
by Landlord in the complex of which the Premises are a part, subject to such
rules and regulations as Landlord may prescribe. All employees of Tenant shall
park only in spaces designated by Landlord for employee parking, if Landlord so
requires; and Tenant shall furnish to Landlord, promptly upon request, license
numbers, makes and colors of vehicles used by Tenant's employees. If any
employee of Tenant parks a vehicle in any area other than that designated for
employee parking, Tenant shall pay Landlord $10.00 per day (or part) for each
vehicle so parked if Landlord shall have given written notice or oral notice of
such parking violation to a responsible official of Tenant on the premises, and
such violation is not immediately corrected. Landlord reserves the right to
limit the number of parking spaces and the location of said spaces, in
Landlord's sole discretion.
(b) Landlord shall have the exclusive management and control over the
common areas; shall keep the parking areas and driveways substantially free
of ice, snow and debris; shall keep the common areas in reasonable repair
and shall care for all landscaping; and may change the arrangement and
location of parking areas and driveways as it sees fit.
(c) Landlord (subject to reimbursement as hereinafter set forth in
this section) will, at its expense, operate and maintain, or cause to be
operated and maintained, the common areas (hereinabove defined) and the
Office in a manner deemed reasonable and appropriate by Landlord. For
purposes of this Lease, "common area costs" shall be those costs of
operating and maintaining or of causing the operation and maintenance of
the common areas and the Office of which the Premises form a part in a
manner deemed by Landlord to be reasonable and appropriate, including, but
not limited to, all costs and expenses, whether expended or incurred, of
repairing, lighting, cleaning, landscaping, painting and maintaining
(including, but not limited to, preventive maintenance); removing snow,
ice, rubbish and debris, including dumpster rental and/or pick-up charges,
inspecting, policing, providing security and regulating traffic; rental and
depreciation of machinery and equipment and other non-real estate assets
used in the operation and maintenance of the property; repairing and/or
replacing of paving, curbs, walkways, landscaping, drainage, on-site water
lines, sanitary sewer lines, storm water lines, electrical lines and other
equipment serving the Office from which the Premises or any part thereof is
constructed or is to be constructed; electricity, steam, water and/or other
fuel used in the common areas; heating, ventilating and air conditioning in
enclosed common areas, if any; cleaning and janitorial supplies including
equipment, uniforms, supplies and sundries used in connection therewith, if
such services are provided, sales or use taxes on supplies or services; any
parking surcharges that may result from any environmental or other laws,
rules, regulations, guidelines or orders; the gross compensation (including
fringe benefit expenses and related payroll taxes) of all personnel
required to supervise and accomplish the foregoing, together with an
administrative charge equal to 15% of the total of all common area costs
specifically referred to above. In the event of any dispute as to whether
an item represents an expense or a capital item, Landlord's accounting
practices shall be determinative and binding on the parties.
(d) Tenant shall pay as additional rent, Tenant's
proportionate share of the common area costs incurred by
Landlord. For purposes of calculating Tenant's "proportionate
share", the common area costs incurred by Landlord will be
multiplied by a fraction, the numerator of which shall be the
square footage occupied by Tenant for the common area cost year
in question and the denominator of which shall be the total
leaseable square footage of the Office, occupied or ready for
occupancy. Any payment due hereunder shall be deemed to be
additional rent payable by Tenant pursuant to this section within
fifteen (15) days of Landlord's billing. Additional rent payable
by Tenant pursuant to this section shall be pro-rated for any
fractional part of the year during the last year of the Lease.
Unless Tenant shall have given Landlord written notice of
exception to any billing by Landlord within thirty (30) days
after delivery thereof, the same shall be deemed conclusive and
binding on Tenant. Landlord shall supply Tenant with a statement
showing the amount and computation of such additional rent upon
written request therefore by Tenant delivered within fifteen (15)
days of receipt of the Landlord's billing provided for in this
subsection.
26. SECURITY DEPOSIT. Tenant shall deposit with Landlord the sum of ONE
THOUSAND FIVE HUNDRED THIRTY-ONE DOLLARS AND TWENTY-FIVE CENTS ($1,531.25) to be
held by Landlord a security for the payment of rent and the performance of
Tenant's other obligations under this Lease. Landlord may (but need not) invest
the deposit in interest bearing securities or accounts and interest earned
thereon, if any, shall belong to Landlord. The deposit shall be returned to
Tenant within sixty (60) days after the termination of this Lease if all of
Tenant's obligations hereunder are performed to the date of termination. If
tenant defaults in the performance or observance of any obligation on its part
under this Lease, Landlord may apply the deposit to payment of the rent in
default or other money arrearage, and/or to the damages and costs incurred by
Landlord as a result of any default, and/or to costs incurred by Landlord in
rectifying any default, and/or to the prepayment of rent for any subsequent
period of the term, and Tenant shall promptly thereafter restore the security
deposit to the original amount above specified. The right of Landlord to apply
the security deposit as above specified shall not be construed as a limitation
upon Landlord's right to invoke any other remedy available under this Lease or
at law or equity for breach of this Lease, or to collect the full amount of
damages owing by Tenant on account of such breach. If, by reason of Tenant's
default under this Lease, Landlord terminates this Lease either before or after
the commencement of the term or re-enters the Premises or if Tenant holds over
at the end of the term, Landlord may retain the security deposit as liquidated
damages (applying it against the damages which it suffers but without waiving
its right to recovery of additional damages to which it may be entitled) or
apply it to the monthly installments of rent hereunder in inverse order of
accrual.
27. 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) 48 hours after
being sent as certified or registered first class 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 other national courier service, in each
case to the address of such parties set forth herein or to such address in the
United States of America as such party may designate from time to time by notice
to the other party hereto, (ii) (if such party's receipt thereof is acknowledged
in writing) upon being given by hand or other actual delivery to such party, or
(iii) upon being sent by telecopier to such telecopier number as such party may
designate from time to time by notice to the other party hereto.
28. TENANT BUILD-OUT. Upon the commencement of this Lease, Tenant will
accept deliver of the Premises from Landlord "As Is".
29. RELOCATION. Landlord reserves the right to relocate Tenant at
Landlord's cost to comparably sized Premises within the Office. Landlord will
provide Tenant with no less than 120 days written
notice of its intention to relocate Tenant to new Premises. Any notice to
relocate Tenant shall be subject to the following terms and conditions:
(a) This Lease will be amended effective as of the date of such
relocation by deleting the description of the original Premises and
substituting for it a description of the new Premises.
(b) Tenant will pay rent and additional rent/charges for the new
Premises at the same rate per square foot that is then payable for such
charges hereunder.
(c) Landlord shall bear the reasonable costs of moving Tenant to the
new Premises, and shall also bear the cost of constructing the new Premises
in a manner identical or substantially identical to Landlord's construction
obligations with respect to the original Premises, and Landlord shall
complete its construction obligations and deliver the new Premises to
Tenant as of the date specified in Landlord's notice.
30. HAZARDOUS SUBSTANCES. (a) The term "Hazardous Substances" as used in
this Lease is defined to mean any substance defined as a "hazardous substance"
or "hazardous material" under either the Comprehensive Environmental Response,
Compensation and Liability Act of 1989, as amended (42 USC9601, et seq.), or
substances declared to be hazardous or toxic under any other federal, state or
municipal law or regulation now or hereafter enacted or promulgated by any
governmental authority having jurisdiction, and including asbestos and
underground and above ground storage tanks.
(b) Tenant shall have no responsibility or liability whatsoever to
Landlord or any third person for any Hazardous Substances or any other
environmental hazards which were created and/or existed on or in the
Premises prior to the date of this Lease. Landlord shall indemnify and save
harmless tenant, its successors and assigns, from all claims and demands of
every kind, that may be brought against Tenant, before or on account of any
damage, loss or injury to persons or property arising from connection with
any such Hazardous Substance or any other environmental hazard created or
existing on or before this Lease, and from any and all costs and expenses
and other charges which may be imposed upon Tenant, its successors and
assigns, or which Tenant may be obligated to incur in consequence thereof.
(c) Tenant shall not cause or permit to occur:
(i) Any violation of any federal, state or local law, ordinance
or regulation now or hereafter enacted, related to environmental
conditions on, under or about the Premises and arising from Tenant's
use or occupancy of the Premises, including, but not limited to soil
and ground water conditions; or
(ii) The use, generation, release, manufacture, refining,
production, processing, storage or disposal of any Hazardous Substance
on, under or about the Premises or the transportation to or from the
Premises of any Hazardous Substance.
Further, it is agreed that:
(iii) Tenant shall, at Tenant's own expense, make all submissions
to, provide all information required by, and comply with all
requirements of all governmental authorities (the "Authorities) under
the Laws.
(iv) Tenant shall, at Tenant's own expense, comply with all laws
regulating the use generation, storage, transportation or disposal of
Hazardous Substances ("Laws").
(v) Should any Authority or any third party demand that a cleanup
plan be prepared and that a clean-up be undertaken because of any
deposit, spill, discharge or other release of Hazardous Substances
that occurs during the term of this Lease, at or from the Premises and
Tenant's use thereof, and for compliance therewith, and Tenant shall
execute all documents promptly upon Landlord's request. No such action
by Landlord and no attempt made by Landlord to mitigate damages under
any Law shall constitute a waiver of any of Tenant's obligations under
this Section.
(vi) Tenant shall promptly provide all information regarding the
use, generation, storage, transportation or disposal of Hazardous
Substances that is requested by Landlord. If Tenant fails to fulfill
any duty imposed under this Section within a reasonable time, Landlord
may do so; and in such case, Tenant shall cooperate with Landlord in
order to prepare all documents Landlord deems necessary or appropriate
to determine the applicability of the Laws to the Premises and
Tenant's use thereof, and for compliance therewith, and Tenant shall
execute all documents promptly upon Landlord's request. No such action
by Landlord and no attempt made by Landlord to mitigate damages under
any Law shall constitute a waiver of any of Tenant's obligations under
this Section.
(vii) Tenant's obligations and liabilities under this Section
shall survive the expiration of this Lease.
(d) Tenant shall indemnify, defend and hold harmless Landlord, the
manager of Landlord's buildings and their respective officers, directors,
beneficiaries, shareholders, partners, agents and employees from all fines,
suits, procedures, claims and actions of every kind, and all costs
associated therewith (including attorneys' and consultants' fees) arising
out of or in any way connected with any deposit, spill, discharge or other
release of Hazardous Substances that occurs during the term of this Lease,
at or from Tenant's failure provide all information, make all submissions
and take all steps required by all Authorities under the Laws and all other
environmental laws. Tenant's obligations and liabilities under this Section
shall survive the expiration of the Lease.
31. BROKERAGE COMMISSIONS. Each of the parties represents and warrants that
there are no claims for brokerage commissions or finder's fees in connection
with the execution of this Lease, and each of the parties agrees to indemnify
and save harmless the other party from and against all liabilities arising from
any such claim including, without limitation, the cost of attorney's fees in
connection therewith.
32. RECORDING. Tenant shall not record this Lease. The parties agree that
at or prior to the commencement of the Lease term, or at a later date, if
requested by either party, they will, upon the written request of either party,
execute, acknowledge and deliver a short form of lease setting forth the date, a
description of the Premises, term, renewal option and restrictive covenants, of
any, contained and found to exist in this Lease. If the short form of lease
herein referred to is recorded, all costs incident thereto shall be paid by the
party requesting such recordation. The cost of recording any financing statement
required by Landlord as security for the rent or other payments due hereunder
shall be at Tenant's expense. Such short form lease shall not change the rights
and obligations of the respective parties.
33. WAIVER OF JURY TRIAL. Landlord and Tenant shall and they hereby do
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other. Said waiver is effective as to all
matters, including, but not limited to, any matters arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, and any emergency or other statutory remedy.
Tenant further agrees that it shall not interpose any counterclaim(s) in a
summary proceeding or in any action based on holdover or non-payment of Rent
and/or Additional Charges.
34. MISCELLANEOUS. (a) For the purpose of any suit brought or based on this
Lease, this Lease shall be constructed to be a divisible contract, to the end
that successive actions may be maintained as successive periodic sums shall
mature under this Lease, and failure to include in any suit or action any sum or
sums then matured shall not be a bar to the maintenance of any suit or action
for the recovery of said sum or sums so omitted. Tenant shall not in any suit or
suits brought on this Lease for a matured sum, for which judgment has not
previously been received, plead, rely on or urge as a bar to said suit or suits,
the defenses of res adjudicata, former recovery, extinguishment, merger,
election of remedies or other similar defenses.
(b) Nothing shall be construed to be a waiver of any of the terms,
covenants and Conditions herein contained unless the same be in writing
signed by the party to be charged with such waiver and no waiver of the
breach of any covenant shall be construed as a waiver of the covenant or
any subsequent breach thereof.
(c) The failure of Landlord to insist in any one or more instances
upon a strict performance of any covenant of this Lease or to exercise any
right herein contained shall not be construed as a waiver or relinquishment
for the future of such covenant or right, but the same shall remain in full
force and effect, unless the contrary is expressed in writing by Landlord.
(d) If this Lease is executed by two or more individuals, as Tenant,
the liability for all obligations on Tenant's part to be performed
hereunder, specifically including but not limited to the obligation to pay
all rent and additional rent provided for herein, shall be deemed to be
joint and several.
(e) Landlord covenants that Tenant, on paying the Rent and Additional
Rent due hereunder and performing Tenant's obligations under this Lease,
shall peacefully and quietly have, hold and enjoy the Premises throughout
the term without hindrance, ejection or molestation by any person lawfully
claiming under Landlord, subject to the terms and provisions of this Lease
and to all mortgages and underlying leases of record to which this Lease
may be or becomes subject and subordinate, unless a non-disturbance
agreement has been granted by mortgagee or ground lessor.
(f) Any and all sums of money required to be paid by Tenant under this
Lease, Whether or not designated as "additional rent" shall nevertheless be
deemed as "additional rent" and shall be collectible as rent.
(g) Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to
subject Landlord's interest or estate to any liability under any mechanic's
or other lien law. If landlord receives any notice to file a mechanic's or
other lien against the Office, or any part thereof, or the Premises, or any
part thereof, for any work, labor, services or materials claimed to have
been performed or furnished for or on behalf of Tenant or anyone holding
any part of the premises through our under Tenant, then Tenant shall act
promptly to have such notice withdrawn and to settle any dispute that is
the subject of such notice. If any petition to establish a mechanic's or
other lien is filed or if any mechanic's or other lien is actually
established, against the Office or any part thereof, or the Premises, or
any part thereof, or if any mechanic's or other lien is actually
established, for any work, labor, services or materials claimed to have
been performed or furnished for or on behalf of Tenant or anyone holding
any part of the Premises through or under Tenant, then Tenant shall cause
the same to be canceled and discharged of record by payment, bond or order
of court within 20 days after notice by Landlord to Tenant. Tenant shall,
at Landlord's request, give written notice to all of Tenant's laborers and
materialmen that Landlord shall not be responsible for labor on the
Premises not at the time of said notice performed, or for materials which
have been furnished. Tenant shall be responsible for paying, as additional
rent, any attorneys fees that Landlord actually incurs as a result of
Landlord receiving any notice of intent to file a mechanic's or other, lien
described herein; as a result of any such petition to file a mechanic's or
other lien or as a result of any such mechanics, or other lien being
established against the Office, or any part thereof, or against the
Premises, or any part thereof.
35. CONTINGENCIES. The Tenant's lease at 00000 Xxxxx Xxxxxxxx Xxxx will
commence on the earlier of the day after the Tenant's current lease Agreement
with Continental Realty Corporation expires or the day after the Lease Agreement
is terminated, if earlier than the expiration date. In no event will the
Tenant's commencement date be later than November 1, 1999.
IN WITNESS WHEREOF, the parties hereto have executed this Lease under their
respective hands and seals as of the day and year first above written: WITNESS:
LANDLORD: KA REAL ESTATE ASSOCIATES, LLC
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxxx X. Xxxx, Xx.
---------------------- ----------------------------------------
WITNESS: TENANT:
AVESIS INCORPORATED
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxx X. Xxxx
---------------------- ----------------------------------------
STATE OF MARYLAND, COUNTY OF Baltimore , to wit:
On this 3rd day of June, 1999, before me, the subscriber, a Notary Public of the
State of Maryland, personally appeared Xxxxxxx X. Xxxx, Xx. ,and he acknowledged
the above Lease to be the act of said Landlord.
IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal.
/s/ Xxxxx Xxxxxxxxx
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My Commission Expires: 8/1/2001
STATE OF MARYLAND, COUNTY OF Baltimore , to wit:
On this 3rd day of June, 1999, before me, the subscriber, a Notary Public of the
State of Maryland, personally appeared Xxxxxxx X. Xxxx, Xx. ,and he acknowledged
the above Lease to be the act of said Landlord.
IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal.
/s/ Xxxxx Xxxxxxxxx
----------------------------------------
My Commission Expires: 8/1/2001
