EXHIBIT 10.27
DEED OF LEASE AGREEMENT
THIS DEED OF LEASE AGREEMENT (hereinafter referred to as "Lease"), made
this 11th day of August 1998, by and between Massachusetts Mutual Life Insurance
Company, a corporation organized and existing under the laws of Maryland
(hereinafter referred to as the "Landlord") and Pulsar Data Systems, Inc., a
Corporation organized and existing under the laws of Maryland, (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, situated and lying in Prince George's
County, Maryland, which consists of the space (containing 12,790 rentable square
feet of floor area) outlined in Exhibit A attached hereto and made a part hereof
(hereinafter referred to as the "Premises") and located in a building
(hereinafter referred to as the "Building") at 0000 Xxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxx (the Premises, the remainder of the Building, such tract of land, other
buildings thereon, and any other buildings or improvements to be constructed
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. TERM.
1.1. LENGTH. This Lease shall be for a term (hereinafter referred to as
the "Term") (a) commencing on the first day after the date on which the Landlord
substantially completes the improvements to be made to the Premises under the
provisions of Section 5 and tenders possession thereof to the Tenant (herein-
after referred to as the "Commencement Date", except that if the date of such
commencement is hereafter advanced or postponed by written agreement of the
parties hereto, the date to which it is advanced or postponed shall thereafter
be the "Commencement Date"), and (b) terminating at 12:01 A.M., local time, on
the fifth (5th) anniversary of the first (1st) day of the first (1st) full
calendar month during the Term (hereinafter referred to as the "Termination
Date", except that if the date of such termination is hereafter advanced or
postponed pursuant to any provision of this Lease, or by written agreement of
the parties hereto, the date to which it is advanced or postponed shall
thereafter be the Termination Date).
1.2. Taking of possession by Tenant shall be deemed conclusively to
establish that said
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buildings and other improvements have been completed in accordance with the
plans and specifications and that the Premises are in good and satisfactory
condition, as of when possession was so taken. Tenant acknowledges that no
representations as to the repair of the Premises have been made by Landlord,
unless such are expressly set forth in this Lease. After such "Commencement
Date" Tenant shall, upon demand, execute and deliver to Landlord a letter of
acceptance of delivery of the Premises. In the event of any dispute as to
substantial completion or work performed or required to be performed by
Landlord, the certificate of Landlord's architect or general contractor shall be
conclusive.
1.3. SURRENDER. The Tenant shall at its expense, at the expiration of the
Term/1// or upon 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 (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 used in conducting the Tenant's trade or
business and not owned by the Landlord, and (c) repair any damage to the
Premises or the Building caused by such removal.
1.4 HOLDING OVER.
1.4.1. If the Tenant continues to occupy the Premises after the
expiration of the Term or any earlier termination of this Lease after obtaining
the Landlord's express, written consent thereto,
(a) such occupancy shall (unless the parties hereto otherwise
agree in writing) be deemed to be under a month-to-month tenancy, which shall
continue until either party hereto notifies the other in writing, by at least
thirty (30) days before the end of any calendar month, that the notifying party
elects to terminate such tenancy at the end of such calendar month, in which
event such tenancy shall so terminate;
(b) anything contained in the foregoing provisions of this
Section to the contrary notwithstanding, the rental payable for each such
monthly period shall equal one-twelfth (1/12) of the Base Rent and the
Additional Rent payable under the provisions of subsection 2.2 (calculated in
accordance with such provisions of subsection 2.2 as if this Lease had been
renewed for a period of twelve (12) full calendar months after such expiration
or earlier termination of the Term or such renewal); and
(c) such month-to-month tenancy shall be upon the same terms and
subject to the same conditions as those set forth in the provisions of this
Lease; provided, that if the Landlord gives the Tenant, by at least thirty (30)
days before the end of any calendar month during such month-to-month tenancy,
written notice that such terms and conditions (including any thereof relating to
the amount or payment of Rent) shall, after such month, be modified in
___________________
/1// or any extension thereof
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any manner specified in such notice, then such tenancy shall, after such month,
be upon the said terms and subject to the said conditions, as so modified.
1.4.2. If the Tenant continues to occupy the Premises after the
expiration of the Term or any earlier termination of this Lease without
obtaining the Landlord's express, written consent thereto, such occupancy shall
be on the same terms and subject to the same conditions as those set forth in
the provisions of paragraph 1.4.1, except that, anything contained in the
provisions of this Lease to the contrary notwithstanding, (a) the rental payable
during the period of such occupancy shall equal/2// of the rental which would be
payable during such period under the provisions of subparagraph 1.4.1.(b), had
the Tenant obtained the Landlord's express, written consent to such occupancy,
as aforesaid, and (b) nothing in the provisions of paragraph 1.4.1. or any other
provision of this Lease shall be deemed in any way to alter or impair the
Landlord's right immediately to evict the Tenant or exercise its other rights
and remedies under the provisions of this Lease or applicable law on account of
the Tenant's occupancy of the Premises without having obtained such
consent.
SECTION 2. RENT
2.1. AMOUNT. As rent for the Premises (all of which is hereinafter referred
to collectively as "Rent"), the Tenant shall pay to the Landlord in advance,
without demand, deduction or set off, for the entire Term hereof, all of the
following:
2.1.1. Base Rent. An annual rent in the amounts specified in Exhibit
D.
2. 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.
2. 1.3. Lease Year. As used in the provisions of this Lease, the term
"Lease Year" means (a) the period commencing on the Commencement Date and
terminating on the first (1st) anniversary of the last day of the calendar month
containing the Commencement Date, and (b) each successive period of twelve ( 12)
calendar months thereafter during the Term.
____________________
/2// one hundred fifty percent (150%) for the first three (3) months and two
hundred percent (200%) thereafter
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2.2. ANNUAL OPERATING COSTS/3//
2.2.1. Taxes.
(a) Tenant agrees to pay before they become delinquent all taxes,
assessments and governmental charges of any kind and nature whatsoever
(hereinafter referred to as "Taxes") lawfully levied or assessed against the
Building and the grounds, parking areas, driveways and alleys around the
Building. Tenant shall furnish to Landlord, not later than twenty (20) days
before the date any such Taxes become delinquent, official receipts of the
appropriate taxing authority or other evidence satisfactory to Landlord
evidencing payment thereof. If Tenant should fail to pay any Taxes, assessments
or governmental charges required to be paid by Tenant hereunder, in addition to
any other remedies provided herein, Landlord may, if it so elects, pay such
Taxes, assessments and governmental charges. Any sums so paid by Landlord shall
be deemed to be Additional Rent owing by Tenant to Landlord and due and payable
on demand by Landlord, together with interest thereon at the rate of twelve
percent (12%) per annum from the date paid by Landlord to the date of repayment
by Tenant.
(b) In the event the Premises constitute a portion of a multiple
occupancy building, in lieu of Tenant paying the Taxes as provided above,
Landlord agrees to pay, before they become delinquent, all Taxes lawfully levied
or assessed against such Building and the grounds, parking areas, driveways and
alleys around the Building, and Tenant agrees to pay to Landlord, as Additional
Rent, upon demand, the amount of Tenant's proportionate share of such Taxes paid
by Landlord. Tenant's proportionate share means the percentage assigned to the
Premises for purposes of allocating Taxes as set forth herein and other Annual
Operating Costs as set forth in Subsection 2.2.2 below and represents the
approximate and (for purposes of this Lease) hereby agreed upon proportion which
the floor area of the Premises bears to the aggregate net rentable space within
the Building and the Property and shall be twenty two and 40/100 percent (22.40
%) of the Building and twenty two and 40/00 percent (22.40 % ) of the Property.
2.2.2. Maintenance.
(a) Maintenance by Tenant. Tenant shall, at its own cost and
expense, keep and maintain all parts of the Premises in good condition, promptly
making all necessary repairs and replacements, interior and non-structural,
ordinary and extraordinary, including but not limited to, glass and plate glass,
doors and office entry(s), walls and finish work, floors and floor covering,
heating and air conditioning systems, electrical systems, plumbing work and
fixtures, termite and pest extermination, regular removal of trash and debris.
The cost of maintenance and repair of any common party wall (any wall, divider,
partition or any other structure separating the premises from any adjacent
premises occupied by other tenants) shall be shared equally by
___________________
/3// In no event shall Tenant's annual increase in controllable Annual
Operating Costs (not including, real estate taxes, insurance, utilities and snow
removal) exceed six percent (6%) of the Tenant's previous years costs.
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Tenant and the tenant occupying adjacent premises. Tenant shall not damage any
party wall or disturb the integrity and support provided by any party wall and
shall, at its sole cost and expense, promptly repair any damage or injury to any
party wall caused by Tenant or its employees, agents or invitees.
(b) Maintenance by Landlord. Tenant and its employees, customers and
licensees shall have the non-exclusive right to use the parking areas, if any,
as may be designated by Landlord in writing, subject to such reasonable rules
and regulations as Landlord may from time to time prescribe. Further, in
multiple occupancy buildings, Landlord shall perform the roof, paving, and
landscape maintenance, exterior painting and common sewage line plumbing which
are otherwise Tenant's obligations under Subsection 2.2.2(a) above, and Tenant
shall, in lieu of the obligations set forth under Subsection 2.2.2(a) above with
respect to such items, be liable for its proportionate share (as defined in
Subsection 2.2.1(b) above) of the cost and expense of Building maintenance and
the care for the grounds around the Building, including but not limited to, the
mowing of grass, care of shrubs, general landscaping, maintenance of parking
areas, driveways and alleys, roof maintenance, exterior repainting and common
sewage line plumbing; provided, however, that Landlord shall have the right to
require Tenant to pay such other reasonable proportion of said mowing, shrub
care and general landscaping costs as may be determined by Landlord in its sole
discretion; and further provided that if Tenant or any other particular tenant
of the Building can be clearly identified as being responsible for obstruction
or stoppage of the common sanitary sewage line then Tenant, if Tenant is
responsible, or such other responsible tenant, shall pay the entire cost
thereof, upon demand, as additional rent. Tenant shall pay/4// when due its
share, determined as aforesaid, of such costs and expenses along with the other
tenants of the Building to Landlord upon demand, as Additional Rent, for the
amount of its share of such costs and expenses in the event Landlord elects to
perform or cause to be performed such work. Such share shall include a
management fee equal to five percent (5%) of the Rent for each Lease Year,
administrative and accounting costs, and a/5// reserve for asphalt, roof repairs
and repainting.
(c) Maintenance Contract. Tenant shall, at its own cost and expense,
enter into a regularly scheduled preventative maintenance/service contract with
a maintenance contractor for servicing all heating and air conditioning systems
and equipment within the Premises and shall provide Landlord with copies of all
service reports. The maintenance contractor and contract
________________
/4// within thirty (30) days
/5// reasonable
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must be approved by Landlord./6// The service contract must include all services
suggested by the equipment manufacturer within the operation/maintenance manual
and must become effective (and a copy thereof delivered to Landlord) within
thirty (30) days of the date Tenant takes possession of the Premises. Each Lease
year Landlord will inspect the HVAC system to determine that the aforementioned
maintenance is being performed. If the HVAC system is not being maintained
pursuant to this Section Landlord will send notice of such lack of maintenance
to Tenant and Tenant shall thereafter have thirty (30) days to perform the
necessary maintenance. Failure by Tenant to complete the necessary maintenance
in such thirty (30) day period shall be a material Event of Default and Landlord
shall have the right to cure such Event of Default pursuant to Section 13.
Should the inspection demonstrate a lack of maintenance of the HVAC system,
Tenant shall pay for the cost of such inspection. Thirty days before Tenant
vacates the Premises, Landlord will have the HVAC equipment inspected by a
qualified HVAC mechanic at Landlord's expense. If in the opinion of the HVAC
mechanic, the equipment has not been properly maintained,/7// then Landlord may
authorize necessary repairs to be made to the system. Such repairs will be
deducted from the Tenant's security deposit. Tenant shall reimburse Landlord for
any and all costs associated with such repairs which exceed the amount of any
security deposit. The remainder of the security deposit, if any, shall be
refunded to Tenant in accordance with the terms of the Lease.
2.2.3. Computation. After the end of each calendar year during the
Term, the Landlord shall compute the total of the Annual Operating Costs
incurred for all of the Property during such calendar year, and shall allocate
them to the net rentable space within the Property in proportion to the
respective operating costs percentages assigned to such spaces; provided, that
anything contained in the foregoing provisions of this subsection 2.2 to the
contrary notwithstanding, wherever the Tenant and/or any other tenant of space
within the Property has agreed in its lease or otherwise to provide any item of
such services partially or entirely at its own expense, or wherever in the
Landlord's judgment any such significant item of expense is not incurred with
respect to or for the benefit of all of the net rentable space within the
Property, in allocating the Annual Operating Costs pursuant to the foregoing
provisions of this subsection the Landlord shall make an appropriate adjustment,
using generally accepted accounting principles, as aforesaid, so as to avoid
allocating to the Tenant or to such other tenant (as the case may be) those
Annual Operating Costs covering such services already being provided by the
Tenant or by such other tenant at its own expense, or to avoid allocating to all
of the net rentable space within the Property those Annual Operating Costs
incurred only with respect to a portion thereof, as aforesaid.
2.2.4. Payment as Additional Rent. The Tenant shall, within fifteen
(15) days after demand therefor by the Landlord (with respect to each calendar
year during the Term), accompanied by a statement setting forth in reasonable
detail the Annual Operating Costs for
____________________
/6// , which approval shall not be unreasonably withheld, conditioned or
delayed
/7// , reasonable wear and tear excepted
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such calendar year, pay to the Landlord as Additional Rent the amount of the
Tenant's operating costs percentage of the Annual Operating Costs for such
calendar year (as derived and allocated under the provisions of paragraph
2.2.3).
2.2.5. Proration. If only part of any calendar year falls within the
Term, the amount computed as Additional Rent for such calendar year under the
foregoing provisions of this subsection shall be prorated in proportion to the
portion of such calendar year falling within the Term (but the expiration of the
Term before the end of a calendar year shall not impair the Tenant's obligation
hereunder to pay such prorated portion of such Additional Rent for that portion
of such calendar year falling within the Term, which shall be paid on demand, as
aforesaid).
2.2.6. 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, accompanied by a schedule setting
forth in reasonable detail the expenses comprising the Annual 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./8//
____________________________
/8// Right to Audit:
(a) Selection of Accountants: If Tenant disputes the amount of an
adjustment or the proposed estimated increase or decrease in Taxes or
Annual Operating Costs, Tenant shall give Landlord written notice of
such dispute within thirty (30) days after Landlord advises Tenant of
such adjustment or proposed increase or decrease. Tenant's failure to
give such notice shall waive its right to dispute the amounts so
determined. Tenant shall also not be entitled to dispute the
foregoing amounts if Tenant is then in default hereunder. If Tenant
is entitled to and timely objects, Tenant shall have the right to
engage its own accountants ("Tenants Accountants") for the purposes
of verifying the accuracy of the statement in dispute, or the
reasonableness of the adjustment or estimated increase or decrease.
If Tenant's Accountants determine that an error has been made,
Landlord and Tenant's Accountants shall endeavor to agree upon the
matter. If they cannot agree within twenty (20) days from the date
Tenant's Accountants commence reviewing Landlord's records, Landlord
and Tenant's Accountants shall jointly
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2.3. WHEN DUE AND PAYABLE.
2.3.1. The Base Rent for any Lease Year shall be due and payable in
twelve (12) consecutive, equal monthly installments, in advance, on the first
(lst) day of each calendar month during such Lease Year; provided, that the
first monthly installment of the Base Rent will be due and payable upon lease
execution.
2.3.2. Any Additional Rent, other than Annual Operating Costs which
are due and payable with each payment of Base Rent, accruing to the Landlord
under any provision
______________________
select an independent certified public accounting firm (the
"Independent Accountant") which firm shall conclusively determine
whether the adjustment or estimated increase or decreases is
reasonable, and if not, what amount is reasonable. Both parties shall
be bound by such determination. If Tenant's Accountants do not
participate in choosing the Independent Accountant within 20 days
from the date Landlord and Tenant's Accountant's determine that they
cannot agree as to whether or not an error has been made, then
Landlord's determination of the adjustment or estimated increase or
decrease shall be conclusively determined to be reasonable and Tenant
shall be bound hereby.
(b) Payment of Costs: All costs incurred by Tenant in obtaining Tenant's
Accountants and the cost of the Independent Accountant shall be paid
by Tenant unless Tenant's Accountants disclose an error, acknowledge
by Landlord (or found to have conclusively occurred by the
Independent Accountant), of more than ten percent (10%) in the
computation of the total amount of Taxes or Annual Operating Costs as
set forth in the statement submitted by Landlord with respect to the
matter in dispute; in which event Landlord shall pay the reasonable
costs incurred by Tenant in obtaining such audits. No subtenant shall
have the right to conduct an audit and no assignee shall conduct an
audit for any period during which such assignee was not in possession
of the Premises.
(c) Continuation of Payments Pending Determination: Tenant shall continue
to timely pay Landlord the amount of the prior year's adjustment and
adjusted Additional Rent determined to be incorrect as aforesaid
until the parties have concurred as to the appropriate adjustment or
have deemed to be bound by the determination of the Independent
Accountant in accordance with the preceding terms. Landlord's delay
in submitting any statement contemplated herein for any Lease Year
shall not affect the provisions of this Paragraph, nor constitute a
waiver of Landlord's rights as set forth herein for said Lease Year
or any subsequent Lease Years during the Lease Term or any extensions
thereof.
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of this Lease shall, except as is otherwise set forth herein, be due
and/9//
2.3.3. Each such payment shall be made promptly when due, without
any deduction or setoff whatsoever, and without demand, failing which the Tenant
shall pay to the Landlord as Additional Rent, a late charge equaling/10// of
the sum of the Base Rent and Additional Rent outstanding.
2.4. 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
(postage prepaid) to the Landlord's address which is set forth in Section 16, or
to such other address or in such other manner as the Landlord from time to time
specifies by written notice to the Tenant. 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, including late fees, interest and penalties, 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.
2.5. TAX ON LEASE. If federal, state or local law now or hereafter imposes
any tax, assessment, levy or other charge (other than any income, inheritance or
estate tax) directly or indirectly upon (a) the Landlord with respect to this
Lease or the value thereof, (b) the Tenant's use or occupancy of the Premises,
(c) the Base Rent, Additional Rent or any other sum payable under this Lease, or
(d) this transaction, then (except if and to the extent that such tax,
assessment, levy or other charge is included in the Annual Operating Costs) the
Tenant shall pay the amount thereof as Additional Rent to the Landlord upon
demand, unless the Tenant is prohibited by law from doing so, in which event the
Landlord may, at its election, terminate this Lease by giving written notice
thereof to the Tenant.
2.6. SECURITY DEPOSIT.
2.6.1. Simultaneously with the entry into this Lease by the parties
hereto, the Tenant shall deposit with the Landlord the sum of twenty-six
thousand two hundred nineteen and 50/100 Dollars ($26,219.50), which shall be
retained by the Landlord as security for the Tenant's payment of the Rent and
performance of all of its other obligations under the provisions of this
___________________
/9// within thirty (30) days after Tenant's receipt of invoice.
/10// twelve percent (12%)
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Lease./11//
2.6.2. On the occurrence of an Event of Default, the Landlord shall
be entitled, at its sole discretion,
(a) to apply any or all of such sum in payment of (i) any
Rent then due and unpaid, (ii) any expense incurred by the Landlord in curing
any such event of default, and/or (iii) any damages incurred by the Landlord by
reason of such event of default (including, by way of example rather than of
limitation, that of reasonable attorneys' fees); and/or
(b) to retain any or all of such sum to reimburse for any or
all damages suffered by the Landlord by reason of event of such default. If at
any time Landlord draws upon the security deposit in accordance with this
section Tenant upon demand agrees to immediately pay to Landlord an amount
sufficient to return the security deposit to the amount stated above.
2.6.3. On the termination of this Lease, any of such sum which is
not so applied or retained shall be returned to the Tenant within/12// of the
Lease termination date.
2.6.4. Such sum shall not bear interest while being held by the
Landlord hereunder.
2.6.5. No Mortgagee (as that term is defined by the provisions of
Section 12) or purchaser of any or all of the Property at any foreclosure
proceeding brought under the provisions of any Mortgage (as that term is defined
by the provisions of Section 12) shall (regardless of whether the Lease is at
the time in question subordinate to the lien of any Mortgage under the
provisions of Section 12 or otherwise) be liable to the Tenant or any other
person for any or all of such sum (or any other or additional security deposit
or other payment made by the Tenant under the provisions of this Lease), unless
both (a) the Landlord has actually delivered it in cash to such Mortgagee or
purchaser, as the case may be, and (b) it has been specifically identified, and
accepted by the Lender or such purchaser, as the case may be, as such and for
such purpose, then Landlord will have no further liability for return of the
security deposit.
SECTION 3. USE OF PREMISES.
3.1 The Tenant shall, continuously throughout the Term occupy and use the
Premises for and only for general office and warehouse purposes.
____________________
/11// Notwithstanding anything contained herein to the contrary provided Tenant
hasn't been in default, Landlord will refund one month of the security deposit
in the amount of eight thousand seven hundred thirty-nine and 83/100 ($8,739.83)
at the end of the first (1st) Lease Year.
/12// thirty (30) days
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3.2 In its use of the Premises and the remainder of the Property, the
Tenant shall not violate any applicable law, ordinance or regulation.
3.3 License.
3.3.1 The Landlord hereby grants to the Tenant a non-exclusive
license to use (and to permit its officers, directors, agents, employees and
invitees to use in the course of conducting business at the Premises),
(a) any and all portions of the said tract of land on which the
Building is located (excluding that portion thereof which is improved by any
other building) which, by their nature, are manifestly designed and intended for
common use by the occupants of the Building and of any other improvements on
such tract, for pedestrian ingress and egress to and from the Premises and for
any other such manifest purposes; and
(b) any and all portions of such tract of land as from time to time
are designated (by striping or otherwise) by the Landlord for such purpose, for
the parking of automobiles.
3.3.2. Such license shall be exercised in common with the exercise
thereof by the Landlord, any tenant or owner of the building or any other
building located on such tract, and their respective officers, directors,
agents, employees and invitees, and in accordance with the Rules and Regulations
promulgated from time to time pursuant to the provisions of Section 11.
3.4 SIGNS. The Tenant shall have the right to erect from time to time
within the Premises such signs as it desires, in accordance with applicable law,
except that the Tenant shall not erect any sign within the Premises in any place
where such sign is visible from the exterior of the Premises, unless the
Landlord has given its express, written consent thereto.
3.5 [DELETED]
SECTION 4. INSURANCE AND INDEMNIFICATION.
4.1 INCREASE IN RISK. The Tenant
4.1.1. shall not do or permit to be done any act or thing as a
result of which either (a) any policy of insurance of any kind covering (i) any
or all of the Property or (ii) any liability of the Landlord in connection
therewith may become void or suspended, or (b) the insurance risk under any such
policy would (in the opinion of the insurer thereunder) be made greater; and
4.1.2. shall pay as Additional Rent the amount of any increase in
any premium for such insurance resulting from any breach of such covenant.
4.2 INSURANCE TO BE MAINTAINED BY TENANT.
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4.2.1. 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 or
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 total of Two
Million Dollars ($2,000,000.00) for bodily injury to or death of all persons or
property damage or destruction in any one occurrence, and (b) Fifty Thousand
Dollars ($50,000.00) Fire Legal Liability. Each such policy shall (a) name as
the insured thereunder the Tenant and the Landlord (and, at the Landlord's
request, any Mortgagee) as additional insureds, (b) by its terms, not be
cancellable without at least thirty (30) days' prior written notice to the
Landlord (and, at the Landlord's request, any such Mortgagee), and (c) be issued
by any insurer of recognized responsibility licensed to issue such policy in the
State of Maryland.
4.2.2. (a) At least five (5) days before the Commencement Date, the
Tenant shall deliver to the Landlord a certificate of each such policy, and (b)
at least thirty (30) days before any such policy expires, the Tenant shall
deliver to the Landlord an original or a signed duplicate copy 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 4.2.1, 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.
4.3 INSURANCE TO BE MAINTAINED BY LANDLORD. The Landlord shall maintain
throughout the Term all-risk insurance upon the Building, including as needed
but not limited to Personal Property, Loss of Rents, Glass, Boiler and
Machinery, General Liability and Umbrella Liability in at least such 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 and of any applicable deductibles therefor shall be deemed,
for purposes of the provisions of Section 2, to be a cost of operating and
maintaining the Property.
4.4 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, damage or liability, then such party hereby releases the other xxxxx
hereto, to and only to the extent of the amount of such proceeds, from any and
all liability for such loss, damage or liability, 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, damage or liability
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, and shall promptly notify the other in writing if such clause cannot
be included in any such policy.
-12-
4.5 LIABILITY OF PARTIES. Except if and to the extent that such party is
released from liability to the other party hereto pursuant to the provision of
subsection 4.4.
4.5.1. the Landlord (a) shall be responsible for, and shall
indemnify and hold harmless the Tenant against and from any and all 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 grossly 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 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 solely caused by such gross negligence or intentionally tortious
act or omission of the Landlord, as aforesaid; and
4.5.2. subject to the operation and effect of the foregoing
provisions of this subsection, 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 (including without limitation reasonable
attorney's fees) arising out of any injury to or death of any person or damage
to any property, occurring within the Premises, or, if caused by Tenant, its
employees, agents or invitees, on the Property.
SECTION 5. IMPROVEMENTS TO PREMISES.
5.1 BY LANDLORD./13//
5.1.1. The Landlord/14// shall make the improvements to the
Premises which are set forth in the plans and specifications attached hereto as
Exhibit B-1.
_____________________
/13// Landlord shall provide a turn key buildout based upon the final approved
space plan dated July 24,1998 and attached hereto in Exhibit B-1. The cost of
any additional improvements or services incurred due to Tenant's modification of
the final approved space plan shall be promptly paid directly by Tenant to
Landlord upon written request by Landlord (to include invoice with back-up), and
failure to pay such sum in accordance with the schedule below shall constitute
an Event of Default under the Lease. Landlord's contractor shall perform all
work to be done within the Premises, with the exception of Tenant's telephone
and data cabling.
In the event the cost of the improvement exceeds the Allowance, Tenant shall
repay such costs in accordance with the following schedule; (a) seventy five
percent (75%) upon requisition of the improvements and (b) twenty five percent
(25%) upon the substantial completion of the improvements.
/14// at its sole cost and expense
-13-
5.1.2. [Deleted]
5.1.3. the Landlord shall use reasonable efforts to complete such
improvements by the date on which the Tenant is entitled to occupy the Premises
pursuant to this Lease, but shall have no liability to the Tenant hereunder if
prevented from doing so by reason of any (a) strike, lock-out or other labor
troubles, (b) governmental restrictions or limitations, (c) failure or shortage
of electrical power, gas, water, fuel oil, or other utility or service, (d)
riot, war, insurrection or other national or local emergency (e) accident,
flood, fire or other casualty, (f) adverse weather condition, (g) other act of
God, (h) inability to obtain a certificate of occupancy, or (i) shortage of
materials or labor, or (j) other cause similar or dissimilar to any of the
foregoing and beyond the Landlord's reasonable control. In such event, (a) the
Commencement Date shall be postponed for a period equalling the length of such
delay, (b) the Termination Date shall be determined pursuant to the provisions
of subsection 1.1 by reference to the Commencement Date as so postponed, and (c)
the Tenant shall accept possession of the Premises within three (3) days after
such completion. If Tenant does not submit drawings or approvals in a timely
manner and, as a result, the Landlord cannot deliver the Premises timely, the
Lease Commencement Date shall not be postponed.
5.2 BY TENANT. The Tenant shall not make any alteration, addition or
improvement to the Premises without first obtaining the Landlord's written
consent thereto.
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 any tenant thereof or other
person.
5.3 MECHANICS' LIEN. The Tenant shall (a) immediately after it is filed or
claimed, bond or have released 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
subsection 5.1), 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.
5.4 FIXTURES. Any and all improvements, repairs, alterations and all other
property attached to, used in connection with or otherwise installed 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 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)
-14-
shall remain the Tenant's property.
SECTION 6. UTILITIES AND SERVICES.
6.1 UTILITIES. Landlord agrees to provide at its cost water and electricity
service connections into the Premises and telephone service connections to the
Building, but Tenant shall pay for all water, gas, heat, light, power,
telephone, sewer, sprinkler charges, meter installation charges, and other
utilities and services used on or from the Premises, together with any taxes,
penalties, surcharges or the like pertaining thereto and any maintenance charges
for utilities and shall furnish all electric light bulbs and tubes. If any such
services are not separately metered to Tenant, Tenant shall pay its
proportionate share as determined by Landlord of all charges jointly metered
within the Building.
6.2 INTERRUPTION. The Landlord shall have no liability to the Tenant for
any compensation or reduction of rent on account of any failure, modification or
interruption of any such service which either (a) arises out of any of the
causes enumerated in the provisions of subsection 5.1.3, or (b) is required by
applicable law (including, by way of example rather than of limitation, any
federal law or regulation relating to the furnishing or consumption of energy or
the temperature of buildings).
SECTION 7. LANDLORD'S RIGHT OF ENTRY.
The Landlord and its agents shall be entitled to enter the Premises at any
reasonable time (a) to inspect the Premises, (b) to exhibit the Premises to any
existing or prospective purchaser, tenant/15// 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 shall (a) (unless doing so is impractical or
unreasonable because of emergency) give the Tenant at least twenty-four (24)
hours' prior notice of its intention to enter the Premises, and (b) use
reasonable efforts to avoid thereby interfering more than is reasonably
necessary with the Tenant's use and enjoyment thereof.
SECTION 8. FIRE AND OTHER CASUALTIES.
8.1 GENERAL. If the Premises are damaged by fire or other casualty during
the term,
8.1.1. the Landlord shall, 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/16// days after the date of such casualty), substantially
restore the premises to their condition immediately before such casualty,
_________________________
/15// (if during the last six (6) months of the Term)
/16// one hundred eighty (180)
-15-
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
8.1.2. the times for commencement and completion of any such
restoration shall be extended for the period of any delay occasioned by the
Landlord in doing so arising out of any of the causes enumerated in the
provisions of subsection 5.1. If the Landlord undertakes to restore the Premises
and such restoration is not accomplished within the said period of/17// 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
8.1.3. 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 2.2 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 3, in which event the Base
Rent and any such Additional Rent shall be abated entirely during such period of
deprivation.
8.2 SUBSTANTIAL DESTRUCTION. Anything contained in the foregoing provisions
of this Section to the contrary notwithstanding,
8.2.1. if during the Term the Building is so damaged by fire or
other casualty that (a) either the Premises or (whether or not the Premises are
damaged) the Building is 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 the
date of such casualty; and
8.2.2. 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.
8.3 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
_________________________
/17// one hundred eighty (180)
-16-
under the Tenant or any of their respective officers, employees, agents or
invitees,
8.3.1. the Rent shall not be suspended or apportioned as aforesaid,
and
8.3.2. except if and to the extent that the Tenant is released from
liability therefor pursuant to the provisions of subsection 4.4, the Tenant
shall pay to the Landlord upon demand, as Additional Rent, the cost of (a) any
repairs and restoration made or to be made as a result of such damage, or (b)
(if the Landlord elects not to restore the Building) any damage or loss which
the Landlord incurs as a result of such damage.
SECTION 9. CONDEMNATION.
9.1 RIGHT TO AWARD.
9.1.1. If any or all of the Premises 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 the 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 held by the Tenant under
this Lease.
9.1.2. 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.
9.1.3. 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 such Condemnation, 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 and Tenants right of recovery is limited to moving expenses
and the cost of trade fixtures.
9.2 EFFECT OF CONDEMNATION.
9.2.1. 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
-17-
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 provision of subsection 2.2),
taxes and other charges payable hereunder shall be apportioned and paid to such
date.
9.2.2. If there is a Condemnation and the Term does not terminate
pursuant to the foregoing provision of this subsection, the operation and effect
of this Lease shall be unaffected by such Condemnation, except that the Base
Rent shall be reduced in proportion to the square footage of floor area, if any,
of the Premises covered by such Condemnation.
9.3 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.
9.4 Except for any separate proceeding brought by the Tenant under the
provisions of paragraph 9.1.3., 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.
SECTION 10. ASSIGNMENT AND SUBLETTING.
10.1 The Tenant hereby acknowledges that the Landlord has entered into this
Lease because of the Tenant's financial strength, goodwill, ability and
expertise and that, accordingly, this Lease is one which is personal to the
Tenant, and agrees for itself and its successors and assigns in interest
hereunder that it will not (a) assign any of its rights under this Lease, or (b)
make or permit any total or partial sale, lease, sublease, assignment,
conveyance, license, mortgage, pledge, encumbrance, or a transfer of a
controlling interest in Tenant, or other transfer of any or all of the Premises
or the occupancy or use thereof (each of which is hereinafter referred to as a
"Transfer"), without first obtaining the Landlord's written consent thereto
(which consent/18// and, if given, shall not constitute a consent to any
subsequent such Transfer, whether
____________________
/18// shall not be unreasonably withheld, conditioned or delayed, so long as
such transferee meets Landlord's reasonable criteria, which criteria are as
follows:
a. The financial strength of the proposed assignee or subtenant, both in
terms of net worth and in terms of reasonably anticipated cash flow
over the Lease term, is not materially less than Tenant's financial
strength at the time this Lease was signed or at the time of such
assignment or sublease, whichever is greater.
-18-
by the person hereinabove named as the "Tenant" or by any such transferee). The
Landlord shall be entitled, at its sole discretion, to condition any such
consent upon the entry by such person into an agreement with (and in form and
substance satisfactory to) the Landlord, by which it assumes all of the Tenant's
obligations hereunder. Any person to whom any Transfer is attempted without such
consent shall have no claim, right or remedy whatsoever hereunder against the
Landlord, and the Landlord shall have no duty to recognize any person claiming
under or through the same. No such action taken with or without the Landlord's
consent shall in any way relieve or release the Tenant from liability for the
timely performance of all of the Tenant's obligations hereunder. The Tenant
hereby acknowledges that any merger, consolidation or other restructuring of
ownership interests in Tenant constitutes a Transfer hereunder. As additional
rent, Tenant shall reimburse Landlord promptly for reasonable legal and other
expenses incurred by Landlord in connection with any request by Tenant for
consent to assignment or subletting; no assignment or subletting shall affect
the continuing primary liability of Tenant (which, following assignment, shall
be joint and several with the assignee); no consent to any of the foregoing in a
specific instance shall operate as a waiver in any subsequent instance. In the
event that any assignee or subtenant pays to Tenant any amounts in excess of the
Annual Rent and additional rent then payable hereunder, or pro rata portion
thereof on a square footage basis for any portion of the Premises, Tenant shall
promptly pay/19// said excess to Landlord as and when received by Tenant.
10.2 Anything contained in the foregoing provisions of this Section to the
contrary
________________________
b. The proposed assignee or subtenant will not burden the Premises
and/or Common Areas to an extent substantially disproportionate to
typical tenants of the Building, whether through disproportionate
demand for landlord services or utilities, disproportionate bearing
weights on floor areas, disproportionate parking requirements,
deterioration of floors or other elements of the Building, or
otherwise.
c. The proposed assignee or subtenant does not intend to make
substantial alterations to the Premises which would, in Landlord's
reasonable judgement, result in a material net decrease in the value
of the Premises as improved.
d. The proposed assignee's or subtenant's use of the Premises will, in
Landlord's sole judgment, be compatible with the uses of the other
tenants in the Building or will be appropriate for a Class A office
building.
e. Any other basis on which Landlord can reasonably refuse to withhold
its consent to the proposed assignment or sublease, including any
failure of the proposed assignee or subtenant to meet any of the
reasonable criteria of Landlord that Tenant was required to meet
prior to the execution of this Lease.
/19// fifty percent (50%) of
-19-
notwithstanding, neither the Tenant nor any other person having an interest in
the possession, use or occupancy of the Premises or any other portion of the
Property shall enter into any lease, sublease, license, concession or other
agreement for the possession, use or occupancy of space in the Premises or any
other portion of the Property which provides for any rental or other payment for
such use, occupancy or utilization based in whole or in part upon the net income
or profits derived by any person from the space in the Premises or other portion
of the Property so leased, used or occupied (other than any amount based on a
fixed percentages of receipts or sales).
10.3. /20//In the event of any/21// transfer without Landlord's consent,
Landlord may, at its sole option, have the right at any time or from time to
time or from time after such Transfer to terminate this Lease as to all or any
portion of the Premises and enter into a direct lease agreement with the
proposed sublessee. Neither Tenant nor any party claiming an interest under or
through Tenant shall interfere with Landlord's exercise of its rights hereunder.
Tenant hereby indemnifies and holds Landlord harmless from and against any and
all liabilities, costs, losses or damages, including reasonable attorneys fees
and court costs, arising from any breach of the provisions of this section by
Tenant.
SECTION 11. RULES AND REGULATIONS.
The Landlord shall have the right to prescribe, at its sole discretion,
reasonable rules and regulations (hereinafter referred to as the "Rules and
Regulations") having uniform applicability to all tenants of the Building
(subject to the provisions of their respective leases) and governing their use
and enjoyment of the Building and the remainder of the Property; provided, that
the Rules and Regulations shall not materially interfere with the Tenant's use
and enjoyment of the Premises, in accordance with the provisions of this Lease,
for the purposes enumerated in the provisions of Section 3. The Tenant shall
adhere to the Rules and Regulations and shall cause its agents, employees,
invitees, visitors and guests to do so. A copy of the Rules and Regulations in
effect on the date hereof is attached hereto as Exhibit C.
SECTION 12. SUBORDINATION; ATTORNMENT AND NON-DISTURBANCE.
12.1. 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 heretofore or hereafter 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.
12.2. ATTORNMENT AND NON-DISTURBANCE. The Tenant shall, promptly at the
request of the
______________________
/20// Except for the Transfers to subsidiaries or other affiliates of
Tenant,
/21// other
-20-
Landlord or the holder of any Mortgage (herein referred to as a "Mortgagee"),
execute, enseal, acknowledge and deliver such further instrument or instruments
12.2.1. evidencing such subordination as the Landlord or such
Mortgagee deems necessary or desirable, and
12.2.2. (at such Mortgagee's request) attorning to such Mortgagee.
Landlord will use reasonable efforts to obtain an agreement from the Mortgagee
(in such Mortgagee's usual form) 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.
12.3. 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 13. DEFAULT.
13.1. 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":
13.1.1. 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
13.1.2. 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 reorganization 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 material allegations of a petition filed
against the Tenant in any bankruptcy, reorganization or insolvency proceeding;
or
13.1.3. if (a) an order, judgment or decree is entered by any court
of competent jurisdiction adjudicating the Tenant a bankrupt or 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;
-21-
13.1.4. if the Tenant fails to occupy and assume possession of the
Premises within/22// days after the Commencement Date;
13.1.5. [deleted]
00.0.0./00// [deleted]
13.2. 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 which it holds
under any provision of this Lease or applicable law unless and until
13.2.1. the Landlord has given written notice thereof to the Tenant,
if written notice is required by this Section for the Event of Default which has
occurred, and
13.2.2. the Tenant has failed, (a) if such Event of Default consists
of a failure to pay money, within five (5) days/24//, or (b) if such Event of
Default consists of something other than a failure to pay money, within thirty
(30) days thereafter 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; provided, that
13.2.3. no such notice shall be required, and the Tenant shall be
entitled to no such grace period, (a) in an emergency situation in which the
Landlord acts to cure such Event of Default pursuant to the provisions of
paragraph 13.3.5; or (b) more than twice during any twelve (12) month period, or
(c) if the Tenant has substantially terminated or is in the process of
substantially terminating its continuous occupancy and use of the Premises for
the purpose set forth in the provisions of Section 3, or (d) in the case of any
Event of Default enumerated in the provisions of paragraphs 13.1.2, 13.1.3,
13.1.4 and 13.1.6.
13.3. LANDLORD'S RIGHTS ON EVENT OF DEFAULT. On the occurrence of any Event
of Default, the Landlord may (subject to the operation and effect of the
provisions of subsection 13.2) take any
_______________________
/22// thirty (30)
/23// In the event Tenant should cease to continue to operate its business at
the Premises for a period of forty-five (45) consecutive days for any reason
other than Tenant's alterations, casualty or other reason beyond Tenant's
reasonable control, Landlord shall have the right at any time thereafter to
terminate the Lease and recapture the Premises upon thirty (30) days prior
written notice to Tenant. Landlord shall also have the option to recapture the
Premises upon thirty (30) days prior written notice to Tenant without
terminating the Lease. In such event, Tenant shall remain liable for the Rent
until such time as Landlord leases the Premises to another party.
/24// after written notice is received; however, Landlord shall only be
obligated to provide written notice to Tenant twice in each Lease Year;
thereafter, no notice shall be due from Landlord to Tenant and Tenant shall be
in default if it fails to pay such amounts when due.
-22-
or all of the following actions:
13.3.1. re-enter and repossess the Premises and any and all
improvements thereon and additions thereto;
13.3.2. declare the entire balance of the Rent for the remainder of
the Term to be due and payable, and collect such balance in any manner not
inconsistent with applicable law;
13.3.3. terminate this Lease;
13.3.4. relet any or all of the Premises for the Tenant's account
for any or all of the remainder of the Term as hereinabove defined, or for a
period exceeding such remainder, in which event the Tenant shall pay to the
Landlord, at the times and in the manner specified by the provisions of Section
2, the Base Rent and any Additional Rent accruing during such remainder, less
any monies received by the Landlord, with respect to such remainder, from such
reletting, as well as the cost to the Landlord of any/25// attorneys' fees or of
any repairs or other action (including those taken in exercising the Landlord's
rights under any provision of this Lease) taken by the Landlord on account of
such Event of Default;
13.3.5. cure such Event of Default in any other manner (after giving
the Tenant written notice of the Landlord's intention to do so except as
provided in paragraph 13.2.3), in which event the Tenant shall reimburse the
Landlord for all expenses incurred by the Landlord in doing so, plus interest
thereon at the lesser of the rate of/26// per annum or the highest rate then
permitted on account thereof by applicable law, which expenses and interest
shall be Additional Rent and shall be payable by the Tenant immediately on
demand therefor by the Landlord; and/or
13.3.6. pursue any combination of such remedies and/or any other
remedy available to the Landlord on account of such Event of Default under
applicable law.
13.4. NO WAIVER. No action taken by the Landlord under the provisions of
this Section shall operate as a waiver of any right which the Landlord would
otherwise have against the Tenant for the Rent hereby reserved or otherwise, and
the Tenant shall remain responsible to the Landlord for any loss and/or damage
suffered by the Landlord by reason of any Event of Default.
13.5. DEFAULT BY LANDLORD. In the event of any default by Landlord,
Tenant's exclusive remedy shall be an action for actual direct damages (Tenant
hereby waiving the benefit of any laws granting it a lien upon the property of
Landlord and/or upon rent due Landlord), but prior to any such action Tenant
will give Landlord written notice specifying such default with particularity,
and Landlord shall thereupon have thirty (30) days in which to cure any such
default. Unless and until Landlord fails to so cure any default after such
notice, Tenant shall not have any remedy or cause of
______________________
/25// reasonable
/26// twelve percent (12%)
-23-
action by reason thereof. All obligations of Landlord hereunder will be
construed as covenants, not conditions, and all such obligations will be binding
upon Landlord only during the period of its possession of the Premises and not
thereafter. The term "Landlord" shall mean only the owner, for the time being of
the Premises, and in the event of the transfer by such owner of its interest in
the Premises, such owner shall thereupon be released and discharged from all
covenants and obligations of the Landlord thereafter accruing, but such
covenants and obligations shall be binding during the lease term upon each new
owner for the duration of such owner's ownership. Notwithstanding any other
provision hereof, Landlord shall not have any personal liability hereunder. In
the event of any breach or default by Landlord in any term or provision of this
Lease, Tenant agrees to look solely to the equity or interest then owned by
Landlord in the Property, however, in no event, shall any deficiency judgment or
any money judgment of any kind be sought or obtained against any Landlord.
SECTION 14. ESTOPPEL CERTIFICATE.
The Tenant shall from time to time, within five (5) days after being
requested to do so 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,
14.1. 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
14.2. acknowledging and agreeing that any statement contained in such
certificate may be relied upon by the Landlord and any such other addressee.
14.3 In the event that Tenant fails to deliver in a timely manner the
estoppel certificate described in Section 14, Landlord may complete such a
certificate on behalf of Tenant, which certificate shall be binding against
Tenant as if Tenant itself signed such certificate. For such purpose, Tenant
hereby irrevocably constitutes and appoints Landlord as Tenant's attorney-in-
fact (which appointment shall be deemed coupled with an interest) for and in its
name to prepare and sign on Tenant's behalf such an estoppel certificate, Tenant
hereby ratifying and confirming all the said attorney shall lawfully do or
choose to do or be done by virture hereof, it being understood and agreed that
the aforesaid provisions impose no burden or obligation on the Landlord to do or
perform any act whatsoever. After said estoppel certificate has been prepared by
Landlord, Landlord shall provide Tenant a copy thereof. Unless Tenant modifies
such certificate as may be appropriate to make the certificate fully accurate,
and signs and returns to Landlord the certificate within three
-24-
(3) days after receipt from Landlord, Landlord shall be entitled and authorized
to sign such estoppel certificate and deliver to any Mortgagee or other person
such estoppel certificate in the name and on behalf of Tenant.
SECTION 15. 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.
SECTION 16. NOTICES.
Any notice, demand, consent, approval, request or other communication or
document to be provided hereunder to a party hereto shall be (a) given in
writing, and (b) deemed to have been given (i) forty-eight (48) hours after
being sent as certified or registered mail in the United States mails, postage
prepaid, return receipt requested, upon its hand delivery to such party,
addressed as follows:
IF TO LANDLORD: Cornerstone Real Estate Advisers, Inc.
c/o Cambridge Asset Advisors Limited Partnership
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
IF TO TENANT: Pulsar Data Systems, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx X
Xxxxxx, Xxxxxxxx 00000
Each party may change its notice address by giving written notice of such
change to the other party in accordance with the terms of this Section 16.
SECTION 17. LANDLORD'S LIEN./27//
[Deleted]
SECTION 18. GENERAL.
18.1. EFFECTIVENESS. This Lease shall become effective upon and only upon
its execution by
_______________________
/27// Notwithstanding anything contained herein to the contrary, Landlord
agrees to forgive its lien on any furniture, fixture or equipment located in the
Premises, but does not waive any of its rights and or remedies granted under the
Uniform Commercial Code or any statutory lien for Rent in Landlord's favor.
-25-
each party hereto./28//
18.2. COMPLETE UNDERSTANDING. This Lease represents the complete
understanding between the parties hereto as to 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.
18.3. AMENDMENT. This Lease may be amended by and only by an instrument
executed and delivered by each party hereto.
18.4. APPLICABLE LAW. This Lease shall be given effect and construed by
application of the laws of Maryland, and any action or proceeding arising
hereunder shall be brought in the Circuit Court for Prince Georges County,
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 appropriate District in Maryland.
18.5. WAIVER. The Landlord shall not be deemed to have waived the exercise
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 exercising any such
right shall be deemed to be a waiver of its future exercise). No such waiver as
to any instance involving the exercise of any such right shall be deemed a
waiver as to any other such instance, or any other such right.
18.6. TIME OF ESSENCE. Time shall be of the essence of this Lease.
18.7. 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.
18.8. CONSTRUCTION. As used herein,
18.8.1. the term "person" means a natural person, a trustee, a
corporation, a partnership and any other form of legal entity; and
18.8.2. all references made (a) in the neuter, masculine or
feminine gender shall be deemed to have been made in all such genders, (b) in
the singular or plural number shall be deemed to have been made, respectively,
in the plural or singular number as well, and (c) 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.
18.9. EXHIBITS. Each writing referred to herein as being attached hereto as
an exhibit or otherwise designated herein as an exhibit hereto is hereby made a
part hereof.
_______________________
/28// and delivery by Landlord to Tenant
-26-
18.10. 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.
18.11. DEFINITION OF THE "LANDLORD".
18.11.1. As used herein, the term the "Landlord" means the person
hereinabove named as such, and its heirs, personal representatives, successors
and assigns (each of whom shall have the same rights, remedies, powers,
authorities and privileges as it would have had, had it originally signed this
lease as the Landlord).
18.11.2. No person holding the Landlord's interest hereunder
(whether or not such person is named as the "Landlord" herein) shall have any
liability hereunder after such person ceases to hold such interest, except for
any such liability accruing while such person holds such interest.
18.11.3. Neither the Landlord nor any principal of the Landlord,
whether disclosed or undisclosed, shall have any personal liability under any
provision of this Lease.
18.12. 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 privileges 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.
18.13. COMMISSIONS. Each party hereto hereby represents and warrants to the
other that, in connection with the leasing of the Premises hereunder, the party
so representing and warranting has not dealt with any real estate broker, agent
or finder, other than Xxxxxx Partners as Tenant's Agent and Cambridge Property
Group Limited Partnership as Landlords Agent and there is no other commission,
charge or other compensation due on account thereof Each party hereto shall
indemnify and hold harmless the other against and from any inaccuracy in such
party's representation.
18.14. RECORDATION. This Lease may not be recorded among the Land Records
of the said County or among any other public records, without the Landlord's
prior express, written consent thereto, and any attempt by the Tenant to do so
without having obtained the Landlord's consent thereto shall constitute an Event
of Default hereunder. If this Lease is recorded by either party hereto, such
party shall bear the full expense of any transfer, documentary stamp or other
tax, and any recording fee, assessed in connection with such recordation;
provided, that if under applicable law the recordation of this Lease hereafter
becomes necessary in order for this Lease to be or remain
-27-
effective, the Tenant shall bear the full expense of any and all such taxes and
fees incurred in connection therewith.
18.15. APPROVAL BY MORTGAGEES. Anything contained in the provisions of this
Lease to the contrary notwithstanding, the Landlord shall be entitled at any
time hereafter but before the Landlord delivers possession of the Premises to
the Tenant hereunder, to terminate this Lease by giving written notice thereof
to the Tenant, if any Mortgagee fails to approve this Lease for purposes of the
provisions of its Mortgage, and in the manner set forth therein.
18.16 WAIVER OF TRIAL BY JURY. The Tenant hereby waives trial by jury in
any action or proceeding to which the Tenant and the Landlord may be parties,
arising out of or in any way pertaining to (a) this Lease, or (b) the Property.
It is agreed and understood that this waiver constitutes a waiver of trial by
jury of all claims against all parties to such actions or proceedings, including
claims against parties who are not parties to this Lease.
This waiver is knowingly, willingly and voluntarily made by the Tenant, and
the Tenant hereby represents that no representations of fact or opinion have
been made by any individual to induce this waiver of trial by jury or to in any
way modify or nullify its effect. The Tenant further represents that it has been
represented in the signing of this Lease and in the making of this waiver by
independent legal counsel, selected of its own free will, and that it has had
the opportunity to discuss this waiver with counsel.
18.17. FINANCIAL INFORMATION.
18.18. AUTHORITY.
By signing below, the undersigned individuals represent and warrant that
they have all requisite authority to sign this Lease Agreement and to bind the
entity on behalf of which they sign this Lease.
IN WITNESS WHEREOF, each party 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: LANDLORD: MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
/s/ By: /S/ XXXXXX X. XXXXXXXXXX
---------------------- ------------------------------------
Xx. Xxxxxx X. Xxxxxxxxxx
Vice President
Date: 8/11/98
----------------------------------
-28-
WITNESS: TENANT: PULSAR DATA SYSTEMS, INC.
/s/ By: /S/ XXXXX X. XXXXX
----------------------- ------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: V. P. Ops.
---------------------------------
Date: 8/10/98
----------------------------------
-29-
AGREEMENT OF LEASE
by and between
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
and
PULSAR DATA SYSTEMS, INC.
EXHIBIT A
PREMISES
The Premises consists of approximately 12,790 rentable square feet in 0000
Xxxxxxxxxx Xxxxx, a 57,089 square foot, office/flex project located at 0000
Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxx Xxxxxx'x Xxxxxx, Xxxxxxxx; to be located in the
approximate location shown on the plan attached hereto as Exhibit A-1.
-30-
AGREEMENT OF LEASE
by and between
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
and
PULSAR DATA SYSTEMS, INC.
EXHIBIT A-1
SITE PLAN
[SITE PLAN]
-31-
AGREEMENT OF LEASE
by and between
Massachusetts Mutual Life Insurance Company
and
Pulsar Data Systems, Inc.
EXHIBIT B
TENANT IMPROVEMENTS
[DELETED]
-32-
AGREEMENT OF LEASE
by and between
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
and
PULSAR DATA SYSTEMS, INC.
EXHIBIT B-1
SPACE PLAN
-33-
AGREEMENT OF LEASE
by and between
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
and
PULSAR DATA SYSTEMS, INC.
EXHIBIT C
CURRENT RULES AND REGULATIONS
1. The sidewalks, lobbies, passages, elevators and stairways shall not be
obstructed by the Tenant and used by the Tenant for any purposes other than
ingress and egress from and to the Tenant's offices. The Landlord shall in
all cases retain the right to control or prevent access thereto by any
person whose presence, in the Landlord's judgment, would be prejudicial to
the safety, peace, character or reputation of the Building or of any tenant
of the Property.
2. The toilet rooms, water closets, sinks, faucets, plumbing and other service
apparatus of any kind shall not be used by the Tenant for any purpose other
than those for which they were installed, and no sweepings, rubbish, rags,
ashes, chemicals or other refuse or injurious substances shall be placed
therein or used in connection therewith by the Tenant, or left by the
Tenant in the lobbies, passages, elevators or stairways of the Building.
3. No skylight, window, door or transom of the Building shall be covered or
obstructed by the Tenant, and no window shade, blind, curtain, screen,
storm window, awning or other material shall be installed or placed on any
window or in any window space, except as approved in writing by the
Landlord. If the Landlord has installed or hereafter installs any shade,
blind or curtain in the Premises, the Tenant shall not remove it without
first obtaining the Landlord's written consent thereto.
4. No sign, lettering, insignia, advertisement, notice or other thing shall be
inscribed, painted, installed, erected or placed in any portion of the
Premises which may be seen from outside the Building, or on any window,
window space or other part of the exterior or interior of the Building,
unless first approved in writing by the Landlord. Names on suite entrances
shall be provided by and only by the Landlord and at the Tenant's expense,
using in each instance lettering of a design and in a form consistent with
the other lettering in the Building, and first approved in writing by the
Landlord. The Tenant shall/will not erect any stand, booth or showcase or
other article or matter in or upon the Premises and/or the Building without
first obtaining the Landlord's written consent thereto.
5. The Tenant shall not place any additional lock or security devices upon any
door within the
-34-
EXHIBIT C
CURRENT RULES AND REGULATIONS (CONTINUED)
Premises or elsewhere upon the Property without Landlord's consent, and
shall surrender all keys for all such locks at the end of the Term. The
Landlord shall provide the Tenant with one set of keys to the Premises when
the Tenant assumes possession thereof
6. The delivery of towels, ice, water, food, beverages, newspaper and other
supplies, equipment and furniture will be permitted only under the
Landlord's direction and control.
7. The Tenant shall not do or permit to be done anything which obstructs or
interferes with the rights of any other tenant of the Property. The Tenant
shall not keep anywhere within the Property any matter having an offensive
odor, or any kerosene, gasoline, benzine, camphene, fuel or other explosive
or highly flammable material. No bird, fish or other animal shall be
brought into or kept in or about the Premises.
8. The Tenant shall keep the Premises in a good state of preservation and
cleanliness while in possession of the Premises.
9. If the Tenant desires to install signalling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices within the Premises,
the Landlord shall direct where and how they are to be installed and,
except as so directed, no installation, boring or cutting shall be
permitted. The Landlord shall have the right (a) to prevent or interrupt
the transmission of excessive, dangerous or annoying current of electricity
or otherwise into or through the Building or the Premises, (b) to require
the changing of wiring connections or layout at the Tenant's expense, to
the extent that the Landlord may deem necessary, (c) to require compliance
with such reasonable rules as the Landlord may establish relating thereto,
and (d) in the event of noncompliance with such requirements or rules,
immediately to cut wiring or do whatever else it considers necessary to
remove the danger, annoyance or electrical interference with apparatus in
any part of the Building. Each wire installed by the Tenant must be
clearly tagged at each distributing board and junction box and elsewhere
where required by Landlord, with the number of the office to which such
wire leads and the purpose for which it is used, together with the name of
the tenant or other concern, if any, operating or using it.
10. No furniture, package, equipment, supplies or merchandise may be received
in the Building, or carried up or down in the elevators or stairways,
except during such hours as are designated for such purpose by the
Landlord, and only after Tenant gives notice thereof to the Landlord. The
Landlord shall have the exclusive right to prescribe the method and manner
in which any of the same is brought into or taken out of the Building, and
the right to exclude from the Building any heavy furniture, safe or other
article which may create a hazard and to require it to be located at a
designated place in the Premises. The Tenant shall not place any weight
anywhere beyond the safe carrying capacity of the Building. The cost of
repairing any damage to the Building or any other part of the Property
caused by taking any of the same in or out of the Premises, or any damage
caused while it is in the Premises or the
-35-
EXHIBIT C
CURRENT RULES AND REGULATIONS (CONTINUED)
rest of the Building, shall be borne by the Tenant.
11. Without the Landlord's prior written consent, (a) nothing shall be fastened
to (and no hole shall be drilled, or nail or screw driven into) any wall or
partition, (b) no wall, or partition shall be painted, papered or otherwise
covered or moved in any way or marked or broken, (c) no connection shall be
made to any electrical wire for running any fan, motor or other apparatus,
device or equipment, (d) no machinery of any kind other than customary
small business machinery shall be allowed in the Premises, (e) no
switchboard or telephone wiring or equipment shall be placed anywhere other
than where designated by the Landlord, and (f) no mechanic shall be allowed
to work in or about the Building other than one employed by the Landlord,
unless approved in writing by Landlord.
12. The Tenant shall have access to the Premises at all reasonable times. The
Landlord shall in no event be responsible for admitting or excluding any
person from the Premises. In case of invasion, hostile attack,
insurrection, mob violence, riot, public excitement or other commotion,
explosion, fire or any casualty, the Landlord shall have the right to bar
or limit access to the Building to protect the safety of occupants of the
Property, or any property within the Property.
13. The Landlord shall have the right to rescind, suspend or modify the Rules
and Regulations and to promulgate such other Rules or Regulations as, in
the Landlord's reasonable judgment, are from time to time needed for the
safety, care, maintenance, operation and cleanliness of the Building, or
for the preservation of good order therein. Upon the Tenant's having been
given notice of the taking of any such action, the Rules and Regulations as
so rescinded, suspended, modified or promulgated shall have the same force
and effect as if in effect at the time at which the Tenant's lease was
entered into (except that nothing in the Rules and Regulations shall be
deemed in any way to alter or impair any provision of such lease).
14. The use of any room within the Building as sleeping quarters is strictly
prohibited at all times.
15. The Tenant shall keep the windows and doors of the Premises (including
those opening on corridors and all doors between rooms entitled to receive
heating or air conditioning service and rooms not entitled to receive such
service), closed while the heating or air conditioning system is operating,
in order to minimize the energy used by, and to conserve the effectiveness
of, such systems. The Tenant shall comply with all reasonable Rules and
Regulations from time to time promulgated by the Landlord with respect to
such systems or their use.
16. Nothing in these Rules and Regulations shall give any Tenant any right or
claim against the Landlord or any other person if the Landlord does not
enforce any of them against any other
-36-
EXHIBIT C
CURRENT RULES AND REGULATIONS (CONTINUED)
tenant or person (whether or not the Landlord has the right to enforce them
against such tenant or person), and no such nonenforcement with respect to
any tenant shall constitute a waiver of the right to enforce them as to the
Tenant or any other tenant or person.
-37-
AGREEMENT OF LEASE
by and between
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
and
PULSAR DATA SYSTEMS, INC.
EXHIBIT D
BASE RENT
--------------------------------------------------------------------------------
RENTAL SQUARE ANNUAL MONTHLY
LEASE YEAR RATE FEET BASE RENT BASE RENT
--------------------------------------------------------------------------------
1 $8.20 12,790 $104,878.00 $8,739.83
--------------------------------------------------------------------------------
2 $8.45 12,790 $108,024.34 $9,002.03
--------------------------------------------------------------------------------
3 $8.70 12,790 $111,265.07 $9,272.09
--------------------------------------------------------------------------------
4 $8.96 12,790 $114,603.02 $9,550.25
--------------------------------------------------------------------------------
5 $9.23 12,790 $118,041.11 $9,836.76
--------------------------------------------------------------------------------
-38-
AGREEMENT OF LEASE
by and between
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
and
PULSAR DATA SYSTEMS, INC.
EXHIBIT E
LEASE ADDENDUMS
1. Option to Terminate: Provided Tenant is not then in default under the terms
of this Lease, Tenant shall have the one-time right to terminate this Lease as
of the end of the thirty-sixth (36th) month of the Lease Term. Tenant must
provide Landlord at least one hundred eighty (180) days prior written notice
(i.e. 180 days prior to the end of the 36th month of the Lease Term) of its
election to exercise this option to terminate. If Tenant fails to provide
Landlord with such written notice on or before such one hundred eighty (180) day
period, Tenant's option to terminate shall become null and void and Tenant shall
have no further option(s) to terminate. In connection with said termination and
as liquidated damages to compensate Landlord for the damage it will incur in
connection with an early termination, Tenant shall pay a fee to Landlord equal
to all unamortized tenant improvement costs and leasing commissions amortized
over sixty (60) months at a per annum rate of ten percent (10%) per annum plus
three (3) months Base Rent at the then current rates. The parties acknowledge
that it would be difficult to calculate Landlord's damages in the event of an
early termination and that the above sum is a reasonable estimate of such
damages. Tenant shall pay such sum at the time of its giving the foregoing
notice or such notice shall be null and void and Tenant's option to terminate
shall thereupon be null and void. In addition, the parties shall execute a
termination agreement in connection with such early termination.
2. Right of First Offer: As long as Tenant has not been in default during the
Term of the Lease and is not in default under the Lease at the time of its
exercise of this right, and so long as this right is exercised in connection
with an expansion of Tenant's Premises and for no other purpose, and subject to
the prior rights of any other tenant in the Building, Landlord hereby grants to
Tenant a one-time right of first offer on the terms and conditions contained in
this paragraph to lease the 6,717 square feet in Suite P when it becomes
available and is not subject to the rights of any other tenant (the "Offer
Space"). The rent for such Space shall be the same rate Tenant is then paying
for the Premises, as escalated. Such lease shall be coterminous with the lease
for the existing Premises and if such Term is then less than three (3) Lease
Years, the Term for the existing Premises and the Offer Space shall be extended
so that it will expire at least three (3) Lease Years from the commencement date
of Tenant's lease of the Offer Space. Landlord shall also provide Tenant with a
tenant improvement allowance in the amount equal to the proportionate amount
with respect to the Lease Term remaining for improvements to the Offer Space. In
the event the Offer Space becomes available for lease during the Term, Landlord
shall give notice thereof to Tenant which notice shall
-39-
contain the foregoing terms to lease the Offer Space. Within five (5) business
days of such notice, time being of the essence, Tenant shall give Landlord
notice that it either does or does not wish to lease the Offer Space or if
Tenant fails to give Landlord notice of its desires respecting the Offer Space
within the foregoing required five (5) business day period, then Landlord shall
be entitled to proceed to market and/or lease the Offer Space to a third party
free and clear of Tenant's right to first offer and such right shall be deemed
terminated in all respects and Tenant shall have no further rights of first
offer.
In the event Tenant gives Landlord a notice as required in the preceding
paragraph that it wishes to lease the Offer Space, then Landlord and Tenant
shall have twenty (20) days from the date of the notice within which to amend
this Lease by adding the Offer Space on the terms and conditions contained in
Landlord's notice. In the event Landlord and Tenant fail to sign such amendment
to this Lease, using good faith efforts, within said twenty (20) day period,
time being of the essence, then Landlord shall be entitled to proceed to market
and/or lease the Offer Space to a third party free
-40-
----------------COMPARISON OF FOOTNOTES--------------
-FOOTNOTE 1-
any extension thereof
-FOOTNOTE 2-
hundred fifty percent (150%) for the first three (3) months and two hundred
percent (200%)
-FOOTNOTE 3-
no event shall Tenant's annual increase in controllable Annual Operating Costs
(not including, real estate taxes, insurance, utilities and snow removal) exceed
six percent (6%) of the Tenant's previous years costs.
-FOOTNOTE 4-
thirty (30) days
-FOOTNOTE 5-
Blank Footnote
-FOOTNOTE 6-
which approval shall not be unreasonably withheld, conditioned or delayed
-FOOTNOTE 7-
to Audit:
(a) Selection of Accountants: If Tenant disputes the amount of an adjustment
or the proposed estimated increase or decrease in Taxes or Annual Operating
Costs, Tenant shall give Landlord written notice of such dispute within thirty
(30) days after Landlord advises Tenant of such adjustment or proposed increase
or decrease. Tenant's failure to give such notice shall waive its right to
dispute the amounts so determined. Tenant shall also not be entitled to dispute
the foregoing amounts if Tenant is then in default hereunder. If Tenant is
entitled to and timely objects, Tenant shall have the right to engage its own
accountants ("Tenants Accountants") for the purposes of verifying the accuracy
of the statement in dispute, or the reasonableness of the adjustment or
estimated increase or decrease. If Tenant's Accountants determine that an error
has been made, Landlord and Tenant's Accountants shall endeavor to agree upon
the matter. If they cannot agree within twenty (20) days from the date Tenant's
Accountants commence reviewing Landlord's records, Landlord and Tenant's
Accountants shall jointly select an independent certified public accounting firm
(the "Independent Accountant") which firm shall conclusively determine whether
the adjustment or estimated increase or decreases is reasonable, and if not,
what amount is reasonable. Both parties shall be bound by such determination. If
Tenant's Accountants do not
-41-
participate in choosing the Independent Accountant within 20 days from the date
Landlord and Tenant's Accountant's determine that they cannot agree as to
whether or not an error has been made, then Landlord's determination of the
adjustment or estimated increase or decrease shall be conclusively determined to
be reasonable and Tenant shall be bound hereby.
(b) Payment of Costs: All costs incurred by Tenant in obtaining Tenant's
Accountants and the cost of the Independent Accountant shall be paid by Tenant
unless Tenant's Accountants disclose an error, acknowledge by Landlord (or found
to have conclusively occurred by the Independent Accountant), of more than ten
percent (10%) in the computation of the total amount of Taxes or Annual
Operating Costs as set forth in the statement submitted by Landlord with respect
to the matter in dispute; in which event Landlord shall pay the reasonable costs
incurred by Tenant in obtaining such audits. No subtenant shall have the right
to conduct an audit and no assignee shall conduct an audit for any period during
which such assignee was not in possession of the Premises.
(c) Continuation of Payments Pending Determination: Tenant shall continue
to timely pay Landlord the amount of the prior year's adjustment and adjusted
Additional Rent determined to be incorrect as aforesaid until the parties have
concurred as to the appropriate adjustment or have deemed to be bound by the
determination of the Independent Accountant in accordance with the preceding
terms. Landlord's delay in submitting any statement contemplated herein for any
Lease Year shall not affect the provisions of this Paragraph, nor constitute a
waiver of Landlord's rights as set forth herein for said Lease Year or any
subsequent Lease Years during the Lease Term or any extensions thereof.
-FOOTNOTE 9-
within thirty (30) days after Tenant's receipt of invoice.
-FOOTNOTE 10-
percent (12%)
-FOOTNOTE 11-
anything contained herein to the contrary provided Tenant hasn't been in
default, Landlord will refund one month of the security deposit in the amount of
eight thousand seven hundred thirty-nine and 83/100 ($8,739.83) at the end of
the first (1st) Lease Year.
-FOOTNOTE 12-
(30) days
-FOOTNOTE 13-
shall provide a turn key buildout based upon the final approved
space plan dated July 24,1998 and attached hereto in Exhibit B-1. The cost of
any additional improvements or services incurred due to Tenant's modification of
the final approved space plan shall be promptly paid directly by Tenant to
Landlord upon written request by Landlord (to include invoice with back-up), and
failure to pay such sum in accordance with the schedule below shall constitute
an Event of Default under the Lease. Landlord's contractor shall perform all
work to be done within the Premises, with the exception of Tenant's telephone
and data cabling.
-42-
In the event the cost of the improvement exceeds the Allowance, Tenant shall
repay such costs in accordance with the following schedule; (a) seventy five
percent (75%) upon requisition of the improvements and (b) twenty five percent
(25%) upon the substantial completion of the improvements.
-FOOTNOTE 14-
its sole cost and expense
-FOOTNOTE 15-
during the last six (6) months of the Term)
-FOOTNOTE 16-
hundred eighty (180)
-FOOTNOTE 17-
hundred eighty (180)
-FOOTNOTE 18-
not be unreasonably withheld, conditioned or delayed, so long as such transferee
meets Landlord's reasonable criteria, which criteria are as follows:
a. The financial strength of the proposed assignee or subtenant, both in terms
of net worth and in terms of reasonably anticipated cash flow over the Lease
term, is not materially less than Tenant's financial strength at the time this
Lease was signed or at the time of such assignment or sublease, whichever is
greater.
b. The proposed assignee or subtenant will not burden the Premises and/or
Common Areas to an extent substantially disproportionate to typical tenants of
the Building, whether through disproportionate demand for landlord services or
utilities, disproportionate bearing weights on floor areas, disproportionate
parking requirements, deterioration of floors or other elements of the Building,
or otherwise.
c. The proposed assignee or subtenant does not intend to make substantial
alterations to the Premises which would, in Landlord's reasonable judgement,
result in a material net decrease in the value of the Premises as improved.
d. The proposed assignee's or subtenant's use of the Premises will, in
Landlord's sole judgment, be compatible with the uses of the other tenants in
the Building or will be appropriate for a Class A office building.
e. Any other basis on which Landlord can reasonably refuse to withhold its
consent to the proposed assignment or sublease, including any failure of the
proposed assignee or subtenant to meet any of the reasonable criteria of
Landlord that Tenant was required to meet prior to the execution of this Lease.
-43-
-FOOTNOTE 19-
percent (50%) of
-FOOTNOTE 20-
for the Transfers to subsidiaries or other affiliates of Tenant,
-FOOTNOTE 21-
Blank Footnote
-FOOTNOTE 22-
(30)
-FOOTNOTE 23-
the event Tenant should cease to continue to operate its business at the
Premises for a period of forty-five (45) consecutive days for any reason other
than Tenant's alterations, casualty or other reason beyond Tenant's reasonable
control, Landlord shall have the right at any time thereafter to terminate the
Lease and recapture the Premises upon thirty (30) days prior written notice to
Tenant. Landlord shall also have the option to recapture the Premises upon
thirty (30) days prior written notice to Tenant without terminating the Lease.
In such event, Tenant shall remain liable for the Rent until such time as
Landlord leases the Premises to another party.
-FOOTNOTE 24-
written notice is received; however, Landlord shall only be obligated to provide
written notice to Tenant twice in each Lease Year; thereafter, no notice shall
be due from Landlord to Tenant and Tenant shall be in default if it fails to pay
such amounts when due.
-FOOTNOTE 25-
Blank Footnote
-FOOTNOTE 26-
percent (12%)
-FOOTNOTE 27-
anything contained herein to the contrary, Landlord agrees to forgive its lien
on any furniture, fixture or equipment located in the Premises, but does not
waive any of its rights and or remedies granted under the Uniform Commercial
Code or any statutory lien for Rent in Landlord's favor.
-FOOTNOTE 28-
delivery by Landlord to Tenant
----------------COMPARISON OF FOOTNOTES--------------
-HEADER 1-
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EXHIBIT C
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CURRENT RULES AND REGULATIONS (CONTINUED)
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