AGREEMENT OF LEASE
by and between
COPT CONCOURSE, LLC
and
DIALYSIS CORPORATION OF AMERICA
(1302 XXXXXXXXX XXXXX, XXXXXXXXX, XXXXXXXX 00000, Suite 204)
AGREEMENT OF LEASE
COPT CONCOURSE, LLC
DIALYSIS CORPORATION OF AMERICA
TABLE OF CONTENTS
1. Definitions and Attachments........................................ 1
2. Demise............................................................. 2
3. Term............................................................... 2
4. Security Deposit and Advance Rent.................................. 3
5. Use................................................................ 3
6. Rent............................................................... 4
7. Requirements of Applicable Law..................................... 7
8. Certificate of Occupancy........................................... 7
9. Contest-Statute, Ordinance, Etc.................................... 7
10. Tenant's Improvements............................................... 8
11. Repairs and Maintenance............................................. 8
12. Conduct on Premises................................................. 9
13. Insurance........................................................... 9
14. Rules and Regulations............................................... 11
15. Mechanics' Liens.................................................... 11
16. Tenant's Failure to Repair.......................................... 11
17. Property - Loss, Damage............................................. 11
18. Destruction - Fire or Other Casualty................................ 11
19. Eminent Domain...................................................... 12
20. Assignment.......................................................... 12
21. Default; Remedies; Bankruptcy of Tenant............................. 13
22. Damages............................................................. 15
23. Services and Utilities.............................................. 15
24. Electric Current.................................................... 16
25. Telephone and Telecommunications.................................... 16
26. Acceptance of Premises.............................................. 17
27. Inability to Perform................................................ 17
28. No Waivers.......................................................... 17
29. Access to Premises and Change in Services........................... 18
30. Estoppel Certificates............................................... 18
31. Subordination....................................................... 18
32. Attornment.......................................................... 18
33. Notices............................................................. 19
34. Relocation.......................................................... 19
35. Tenant's Space...................................................... 19
36. Quiet Enjoyment..................................................... 19
37. Vacation of Premises................................................ 19
38. Members' Liability.................................................. 20
39. Separability........................................................ 20
40. Indemnification..................................................... 20
41. Captions............................................................ 21
42. Brokers............................................................. 21
43. Recordation......................................................... 21
44. Successors and Assigns.............................................. 21
45. Integration of Agreements........................................... 21
46. Hazardous Material; Indemnity....................................... 21
47. Americans With Disabilities Act..................................... 23
48. Several Liability................................................... 24
49. Financial Statements................................................ 24
50. Definition of Day and Days.......................................... 24
51. Tenant's Right to Terminate......................................... 24
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE (this "Lease") made this 31 day of March, 2004,
by and between COPT CONCOURSE, LLC (the "Landlord") and DIALYSIS CORPORATION
OF AMERICA (the "Tenant"), witnesseth that the parties hereby agree as
follows:
W I T N E S S E T H:
THAT FOR AND IN CONSIDERATION of the mutual covenants and agreements
herein contained, the parties hereto do hereby covenant and agree as follows:
1. Definitions and Attachments.
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1.1 Certain Defined Terms.
1.1.1 "Building" means the office building known as "Airport
Square XVI," located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
which is located within Xxxx Arundel County, Maryland.
1.1.2 "Rentable Area of the Building" means 84,607 rentable square
feet, subject to adjustment in accordance with BOMA standards.
1.1.3 "Premises" means that portion of the Building located on the
second floor designated as Suite 204 described on the schedule attached
hereto as Exhibit "A" and made a part hereof.
1.1.4 "Rentable Area of the Premises" means 4,591 rentable square
feet.
1.1.5 "Term" means a period of five (5) years plus the part of a
month mentioned in Section 3.1, commencing and ending as provided in Section
3.1.
1.1.6 "Annual Base Rent" means the amount set forth on the following
schedule:
Rental Year Annual Base Rent Monthly Installments of Annual Base Rent
----------- ---------------- ----------------------------------------
1 $105,593.04 $8,799.42
2 $107,704.90 $8,975.41
3 $109,859.00 $9,154.92
4 $112,056.18 $9,338.01
5 $114,297.30 $9,524.78
1.1.7 "Target Date" means June 1, 2004.
1.1.8 "Advance Rent" means the sum of $8,799.42. See Section 4.2.
1.1.9 "Security Deposit" means the sum of $8,799.42. See Section
4.1.
1.1.10 "Tenant Notice Address" means
Dialysis Corporation of America
00 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telephone (000) 000-0000
Telecopier (000) 000-0000
1.1.11 "Base Year Building Expenses" shall mean the actual Building
Expenses per rentable square foot incurred by Landlord for the 2004 calendar
year.
1.1.12 "Base Year Taxes" shall mean the actual Taxes incurred by
Landlord per rentable square foot for the 2004 calendar year.
1.1.13 "Broker" means NAI/KLNB, Inc.
1.2 Additional Defined Terms.
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The following additional terms are defined in the places in this Lease
noted below:
Term Section
---- -------
"ADA" 47
"Applicable Laws" 7
"Building Expenses" 6.2.2
"Commencement Date" 3.1
"Common Areas" 6.2.4
"Cost of Building Expenses Per Square Foot" 6.4.1
"Cost of Taxes Per Square Foot" 6.3.1
"Default Rate" 6.6
"Hazardous Material" 46
"HVAC" 23
"Lease Year" 6.2.5
"Mortgagee" 31
"Normal Business Hours" 23
"Property" 6.2.1
"Substantially Complete" 3.2
"Successor" 32
"Taxes" 6.2.3
"Tenant Improvements" 35
1.3 Attachments.
The following documents are attached hereto, and such documents, as well
as all drawings and documents prepared pursuant thereto, shall be deemed to
be a part hereof:
Exhibit "A" - Floor Plan
Exhibit "B" - Rules and Regulations
Exhibit "C" - Schedule of Tenant Improvements
Exhibit "D" - Estoppel Certificate
Exhibit "E" - Commencement Date Agreement
2. Demise. Landlord hereby leases unto Tenant, and Tenant does hereby rent
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from Landlord the Premises. In addition thereto, Tenant shall have the right
to use, on a non-exclusive basis, and in common with the other tenants of the
Building the Common Areas of the Building (as that term is defined in Section
6.2.4 hereof).
3. Term.
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3.1 Commencement Date and Term. This Lease shall commence on the
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"Commencement Date" (as herein defined) and shall be for the Term, plus the
portion of a calendar month, if any, from the Commencement Date to the last
day of the calendar month in which such Commencement Date occurs. As used in
this Lease, the term "Commencement Date", as advanced or postponed pursuant
to the terms hereof, shall be defined as the earlier to occur of (a) the date
on which Tenant takes possession and occupancy of the Premises, or (b) the
date which is ten (10) days following that date which is the first on which
all of the following events have occurred, namely (i) the Premises are
"substantially completed", as defined in Section 3.2 following, and (ii)
Landlord has given Tenant written notice that the Premises are "substantially
completed." Within fifteen (15) days after request from Landlord, Tenant
shall execute and deliver the Commencement Date Agreement in substantially
the form attached hereto as Exhibit "E".
3.2 Substantial Completion. Subject to the provisions of Section 35,
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Landlord shall use its reasonable efforts to "substantially complete" the
Premises by the Target Date, provided that the Target Date shall be extended
for the number of days that Tenant fails to satisfy its obligations under
Section 35. "Substantially complete" means that: (i) the construction of
the improvements described in Section 35 has been completed so that Tenant
can use the Premises for its intended purposes without material interference
to Tenant conducting its ordinary business activities, (ii) the Premises have
been approved for occupancy by governmental authorities having jurisdiction,
(iii) Tenant has ready access to the Building and Premises through the lobby,
hallways and elevators, and (iv) the Premises are ready for installation of
any equipment, furniture, fixtures or decoration that Tenant will install.
Landlord shall keep Tenant advised as to its progress with regard to
"substantially completing" the Premises by the Target Date. Notwithstanding
the foregoing, the requirements of subsection (ii) shall be deemed satisfied
if all of the other subsections have been satisfied and the government
approval is delayed as a result of the installation of furniture, fixtures or
equipment which is not included within the scope of Landlord's
responsibilities under Section 35 below.
4. Security Deposit and Advance Rent.
---------------------------------
4.1 Security Deposit. No Security Deposit shall be required to be paid
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by Tenant as of the date of this Lease; provided, however, if Landlord, in
its reasonable discretion, determines that Tenant's financial condition has
changed adversely, Landlord shall have the right to require Tenant to pay the
Security Deposit within fifteen (15) days after written notice from Landlord
and the remaining provisions of this Section shall automatically be in full
force and effect. If Tenant shall perform all such obligations, the Security
Deposit shall be refunded to Tenant, without interest, at the end of the
Term. If Tenant shall default in any such obligation, Landlord shall be
entitled to apply the Security Deposit, pro tanto, toward Landlord's damages
and Tenant shall replenish the Security Deposit to the full amount within ten
(10) days after receipt of a written notice from Landlord which sets forth
the amount to be replenished. If the Security Deposit is not fully restored,
it shall constitute an Event of Default (as defined in Section 21) under the
terms of this Lease, and Landlord shall have the benefit of all remedies
permitted pursuant to the terms of this Lease and the laws of the State of
Maryland. The Security Deposit shall not be considered an advance payment of
rent or a measure of Landlord's damages in case of default by Tenant.
Landlord may commingle the Security Deposit with other monies of Landlord.
In the event of the sale or transfer of Landlord's interest in the Building,
Landlord shall have the right to transfer the Security Deposit to the
purchaser or transferee and upon such transfer Tenant shall look only to the
new landlord for the return of the Security Deposit and Landlord shall
thereupon be released from all liability to Tenant for the return of or
accounting for the Security Deposit.
4.2 Advance Rent. Upon execution of this Lease, Tenant shall pay
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Landlord the Advance Rent to be held as advance rent and security and which
Landlord shall be entitled to retain, without limitation of other remedies,
for any defaults of this Lease by Tenant occurring prior to the commencement
of the Term. If no such defaults occur, the Advance Rent shall be applied by
Landlord against first installments of Base Rent payable by Tenant hereunder.
5. Use. Tenant covenants that it shall use and occupy the Premises
---
continuously during the Term of this Lease solely for general office purposes
in accordance with applicable zoning regulations and for no other purpose.
For purposes of this Lease, the term "general office use" shall not include
use as a school, college, university or educational institution of any type,
use for any purpose which is not consistent with the operation of the
Building as a first-class office building, use as an recruitment or temporary
help service or agency, or any use involving regular traffic by the general
public. Tenant acknowledges that (a) violation of the foregoing continuous
occupancy and use covenant shall be a material breach of this Lease, and (b)
Landlord considers such continuous use and occupancy covenant a valuable
contractual interest with which no other landlord should interfere by
attempting to induce Tenant to move to another building. Tenant recognizes
that its occupancy of the Premises continuously throughout the Term of this
Lease provides Landlord a significant benefit in the perception of the
Building by other prospective tenants who will negotiate with Landlord for
space in the Building in the future as well as the perception of other
existing tenants who will be negotiating with Landlord to renew their leases
and remain in the Building.
6. Rent.
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6.1 Base Rent. As rent for the Premises during each year of the Term,
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Tenant shall pay to Landlord an Annual Base Rent, in equal monthly
installments, in advance on the first day of each calendar month during the
Term, and without deduction, setoff or demand in accordance with the schedule
set forth in Section 1.1.6 above. In addition to the Base Rent, if the Term
should commence on a day other than the first day of a calendar month, Tenant
shall pay to Landlord upon the Commencement Date, a sum equaling that
percentage of the monthly rent installment which equals the percentage of
such calendar month falling within the Term.
6.2 Definitions. For the purposes hereof, the following definitions
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shall apply:
6.2.1 "Property" shall mean the Building, the land upon which same
is situated and all fixtures and equipment thereon or therein, all commonly
owned or shared appurtenances, including but not limited to, parking areas,
walkways, landscaping and utilities, whether located on the land upon which
the Building is situated.
6.2.2 "Building Expenses" shall be all those expenses paid or
incurred by Landlord in connection with the owning, maintaining, operating
and repairing of the Property or any part thereof, in a manner deemed
reasonable and appropriate by Landlord and shall include, without limitation,
the following:
6.2.2.1 All costs and expenses of operating, repairing,
lighting, cleaning, and insuring (including liability for personal injury,
death and property damage and workers' compensation insurance covering
personnel) the Property or any part thereof, as well as all costs incurred in
removing snow, ice and debris therefrom and of policing and regulating
traffic with respect thereto, and depreciation of all machinery and equipment
used therein or thereon, replacing or repairing of pavement, parking areas,
curbs, walkways, drainage, lighting facilities, landscaping (including
replanting and replacing flowers and other planting);
6.2.2.2 Electricity, steam and fuel used in lighting, heating,
ventilating and air conditioning and all costs, charges, and expenses
incurred by Landlord in connection with any change of any company providing
electricity service, including, without limitation, maintenance, repair,
installation and service costs associated therewith, as well as all expenses
associated with the installation of any energy or cost savings devices;
6.2.2.3 Maintenance and repair of mechanical and electrical
equipment including heating, ventilating and air conditioning equipment;
6.2.2.4 Window cleaning and janitor service, including
equipment, uniforms, and supplies and sundries;
6.2.2.5 Maintenance of elevators, stairways, rest rooms,
lobbies, hallways and other Common Areas;
6.2.2.6 Repainting and redecoration of all Common Areas;
6.2.2.7 Repair and maintenance of the parking areas, including
without limitation, the resurfacing and striping of said areas;
6.2.2.8 Sales or use taxes on supplies or services;
6.2.2.9 Management fees, wages, salaries and compensation of all
persons engaged in the maintenance, operation or repair of the Property and
the provision of amenities to all tenants in the Property (including
Landlord's share of all payroll taxes and the cost of an on-site or near-site
office and segregated storage area for Landlord's parts, tools and supplies);
6.2.2.10 Legal, accounting and engineering fees and expenses,
except for those related to disputes with tenants or which are a result of
and/or are based on Landlord's
negligence or other tortious conduct;
6.2.2.11 Costs and expenses that may result from compliance with
any governmental laws or regulations that were not applicable to the Common
Areas at the time same were originally constructed; and
6.2.2.12 All other expenses which under generally accepted
accounting principles would be considered as an expense of maintaining,
operating, or repairing the Property. Notwithstanding the foregoing, all
expenses (whether or not such expenses are enumerated on items 1 through 11
of this Section 6.2.2) which would be considered capital in nature under
generally accepted accounting principles shall be excluded from "Building
Expenses" unless same are amortized in accordance with generally accepted
accounting principles.
6.2.3 "Taxes" shall mean all real property taxes including
currently due installments of assessments, sewer rents, ad valorem charges,
water rates, rents and charges, front foot benefit charges, and all other
governmental impositions in the nature of any of the foregoing. Excluded
from Taxes are (i) federal, state or local income taxes, (ii) franchise,
gift, transfer, excise, capital stock, estate or inheritance taxes, and (iii)
penalties or interest charged for late payment of Taxes. If at any time
during the Term the method of taxation prevailing at the commencement of the
Term shall be altered so as to cause the whole or any part of the items
listed in the first sentence of this subparagraph to be levied, assessed or
imposed, wholly or partly as a capital levy, or otherwise, on the rents
received from the Building, wholly or partly in lieu of imposition of or in
addition to the increase of taxes in the nature of real estate taxes issued
against the Property, then the charge to Landlord resulting from such altered
additional method of taxation shall be deemed to be within the definition of
"Taxes."
6.2.4 "Common Areas" shall mean those areas and facilities which
may be from time to time furnished to the Building by Landlord for the non-
exclusive general common use of tenants and other occupants of the Building,
their officers, employees, and invitees, including (without limitation) the
hallways, stairs, parking facilities, washrooms, and elevators.
6.2.5 "Lease Year" shall mean the first twelve (12) month period
following the Commencement Date and each succeeding twelve (12) month period
thereafter up to the end of the Term; provided, however, that if the
Commencement Date shall occur on a day other than the first day of a calendar
month, then the first Lease Year shall include that portion of a calendar
month in which the Commencement Date occurs in addition to the first twelve
(12) month period.
6.3 Rent Adjustments for Taxes.
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6.3.1 On or before April 30 of each Lease Year, Landlord shall
total the Taxes and shall allocate such Taxes to the Rentable Area of the
Building in the following manner: Taxes for the foregoing calendar year
shall be totaled and such total shall be divided by the total rentable square
feet in the Building thereby deriving the "Cost of Taxes Per Square Foot" of
rentable area.
6.3.2 In the event that the Cost of Taxes Per Square Foot assessed
for any calendar year which is wholly or partly within the Term are greater
than the Base Year Taxes, Tenant shall pay to Landlord, as additional rent at
the time such Taxes are due and payable, the amount of such excess times the
number of Rentable Area of the Premises. Any additional rent due Landlord
under this Section shall be due and payable within thirty (30) days after
Landlord shall have submitted a written statement to Tenant showing the
amount due. For Tenant's obligation for such additional rent at the
beginning or end of the Lease, see Section 6.5. Landlord may, in its
discretion, make a reasonable estimate of such additional rent with respect
to Taxes, and require Tenant to pay each month during such year 1/12 of such
amount, at the time of payment of monthly installments of Base Rent. In such
event, Tenant shall pay, or Landlord shall refund or credit to Tenant's
account, any underpayment or overpayment of such additional rent within
thirty (30) days of Landlord's annual written statement of Taxes due. Tenant
shall have the right to examine, at Tenant's sole expense, Landlord's records
with respect
to any such increases in additional rent; provided, however, that unless
Tenant shall have given Landlord written notice of exception to any such
statement within thirty (30) days after delivery thereof, the same shall be
conclusive and binding on Tenant. No credit shall be given to Tenant if the
cost of Taxes Per Square Foot are less than the Base Year Taxes.
All reasonable expenses incurred by Landlord (including attorneys',
appraisers' and consultants' fees, and other costs) in contesting any
increase in Taxes or any increase in the assessment of the Property shall be
included as an item of Taxes for the purpose of computing additional rent due
hereunder.
6.4 Rent Adjustments for Building Expenses.
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6.4.1 On or before April 30 of each Lease Year, Landlord shall
compute the Building Expenses for such year and shall allocate such costs to
the Rentable Area of the Building in the following manner: Building Expenses
shall be totaled and such total shall be divided by the total Rentable Area
of the Building thereby deriving the "Cost of Building Expenses Per Square
Foot" of rentable area. If Landlord incurs an extraordinary, uncontrollable
expense during the Base Year to determine Building Expenses (e.g., excessive
snow or blizzard), such extraordinary expenses shall not be included in the
computation of Base Year Building Expenses, but such item shall be included
in Base Year Building Expenses in an amount equal to the average amount of
ordinary expenses for such item by averaging the three (3) prior years'
expenses for such item.
6.4.2 In the event that the cost of Building Expenses Per Square
Foot of rentable area for any year which is wholly or partly within the Term
are greater than the Base Year Building Expenses, Tenant shall pay to
Landlord, as additional rent, the amount of such excess times the number of
square feet of Rentable Area of the Premises, as set forth in Section 1
above. If occupancy of the Building during any calendar year, including the
Base Year for Building Expenses, is less than ninety percent (90%), then
Building Expenses for that calendar year shall be "grossed up" to that amount
of Building Expenses that, using reasonable projections, would normally be
expected to be incurred during the calendar year in question if the Building
was ninety percent (90%) occupied during the applicable calendar year period,
as determined under generally accepted accounting principles; it being
understood that the written statement submitted to Tenant shall provide a
reasonably detailed description of how the Building Expenses were grossed up
and that only those component expenses that are affected by variations in
occupancy levels shall be grossed up. Such additional rent shall be computed
on a year-to-year basis. Any such additional rent shall be due within thirty
(30) days after Landlord has submitted a written statement to Tenant showing
the amount due. Landlord may, in its discretion, make a reasonable estimate
of such additional rent with respect to any calendar year, and require Tenant
to pay each month during such year 1/12 of such amount, at the time of
payment of monthly installments of Base Rent. In such event, Tenant shall
pay, or Landlord shall refund or credit to Tenant's account, any underpayment
or overpayment of such additional rent within thirty (30) days of Landlord's
written statement of actual Building Expenses for the calendar year. Tenant,
at Tenant's sole expense, shall have the right to examine Landlord's records
with respect to any such increases in additional rent; provided, however,
that unless Tenant shall have given Landlord written notice of exception to
any such statement within thirty (30) days after delivery thereof, the same
shall be conclusive and binding on Tenant. No credit shall be given to
Tenant if the cost of Building Expenses Per Square Foot are less than the
Base Year Building Expenses. Notwithstanding anything to the contrary
contained herein, Landlord shall use diligent efforts to keep Building
Expenses at reasonable amounts, while maintaining the Building as a first
class office building. Tenant acknowledges that with regard to certain
Building Expenses, some tenants may be paying various fees directly to the
service provider (including, without limitation, janitorial services and
electricity charges), in which event the computation of Building Expenses per
rentable square foot for such items shall be determined by using the total
rentable square footage of the Building reduced by the rentable square
footage of the tenants who are paying such fees directly to the service
provider.
6.5 Additional Rent Payments. Tenant's obligation to pay any
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additional rent accruing during the Term pursuant to Sections 6.3 and 6.4
hereof shall apply pro rata to the proportionate part of a calendar year as
to Taxes and Building Expenses, in which this Lease
begins or ends, for the portion of each such year during which this Lease is
in effect. Such obligation to make payments of such additional rent shall
survive the expiration or sooner termination of the Term.
6.6 Payments. All payments or installments of any rent hereunder and
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all sums whatsoever due under this Lease (including but not limited to court
costs and reasonable attorneys' fees) shall be deemed rent and shall be paid
to Landlord at the address designated by Landlord. If any amount of Annual
Base Rent or additional rent shall remain unpaid for ten (10) calendar days
after such payment becomes due, Tenant shall pay Landlord, without notice or
demand, a late charge equal to the greater of (i) $35.00 and (ii) five
percent (5%) of the such overdue amount to partially compensate Landlord for
its administrative costs in connection with such overdue payment; which
administrative costs Tenant expressly acknowledges are reasonable and do not
constitute a penalty. In addition, such overdue amounts shall bear interest
at the rate of 18% per annum (but not more than the maximum allowable legal
rate applicable to Tenant) (the "Default Rate") until paid. Additionally, if
any of Tenant's checks for payment of rent or additional rent are returned to
Landlord for insufficient funds, Tenant shall pay to Landlord as additional
rent the greater of (i) $50.00 or (ii) the amount of actual charges incurred
by Landlord , for each such check returned for insufficient funds, and if two
or more of Tenant's checks in payment of rent or additional rent due
hereunder are returned for insufficient funds in any calendar year, Landlord
reserves the right upon ten (10) days advance written notice to Tenant to
thereafter require Tenant to pay all rent and additional rent and other sums
whatsoever due under this Lease in cash, by money order or by certified check
or cashier's check. If an attorney is employed to enforce Landlord's rights
under this Lease, Tenant shall pay all fees and expenses of such attorney
whether or not legal proceedings are instituted by Landlord. Time is of the
essence in this Lease.
7. Requirements of Applicable Law. Landlord warrants that on the
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Commencement Date, the Premises shall comply with all applicable laws,
ordinances, rules and regulations of governmental authorities having
jurisdiction over the Property ("Applicable Laws"). Tenant, at its sole cost
and expense, shall thereafter comply promptly with all Applicable Laws now in
force or which may hereafter be in force, which impose any duty upon Landlord
or Tenant with respect to the use, occupancy or alteration of the Premises or
any part thereof and for the prevention of fires; provided, however, that
Landlord and not Tenant shall correct all structural defects in the Building
necessary to comply with Applicable Laws, and make all repairs, changes or
alterations necessary because the Building was not constructed in compliance
with any of the Applicable Laws.
8. Certificate of Occupancy. Tenant shall not use or occupy the Premises in
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violation of any certificate of occupancy, permit, or other governmental
consent issued for the Building. If any governmental authority, after the
commencement of the Term, shall contend or declare that the Premises is being
used for a purpose which is in violation of such certificate of occupancy,
permit, or consent, then Tenant shall, upon five (5) days' notice from
Landlord, immediately discontinue such use of the Premises. If thereafter
the governmental authority asserting such violation threatens, commences or
continues criminal or civil proceedings against Landlord for Tenant's failure
to discontinue such use, in addition to any and all rights, privileges and
remedies given to Landlord under this Lease for default therein, Landlord
shall have the right to terminate this Lease forthwith. Tenant shall
indemnify and hold Landlord harmless of and from any and all liability for
any such violation or violations.
9. Contest-Statute, Ordinance, Etc. Tenant may, after notice to Landlord,
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by appropriate proceedings conducted promptly at Tenant's own expense in
Tenant's name and whenever necessary in Landlord's name, contest in good
faith the validity or enforcement of any such statute, ordinance, law, order,
regulation or requirement and may similarly contest any assertion of
violation of any certificate of occupancy, permit, or any consent issued for
the Building. Tenant may, pending such contest, defer compliance therewith
if, in the opinion of counsel for Landlord, such deferral shall not subject
either Landlord or the Premises or the Property (or any part thereof) to any
penalty, fine or forfeiture, and if Tenant shall post a bond with corporate
surety approved by Landlord sufficient, in Landlord's opinion, fully to
indemnify Landlord from loss.
10. Tenant's Improvements. Except to the extent that Landlord is
---------------------
responsible for making improvements to the Premises pursuant to Section 35 of
this Lease, Tenant shall make such non-structural improvements to the
Premises as it may deem necessary at its sole cost and expense. Tenant shall
not make any alterations, decorations, installations, additions or
improvements to the Premises, including but not limited to, the installation
of any fixtures, amenities, equipment, appliances, or other apparatus,
without Landlord's prior written consent, which consent shall not be
unreasonably withheld, and then only by contractors or mechanics employed or
approved by Landlord, which approval shall not be unreasonably withheld. All
such work, alterations, decorations, installations, additions or improvements
shall be done at Tenant's sole expense and at such times and in such manner
as Landlord may from time to time reasonably designate. Landlord's consent
to and/or approval of Tenant's plans and specifications for the aforesaid
improvements shall create no responsibility or liability on the part of
Landlord for their completeness, design sufficiency, or compliance with all
laws, rules and regulations of governmental agencies or authorities. All
alterations, decorations, installations, additions or improvements made by
either of the parties hereto upon the Premises, except movable office
furniture put in at the expense of Tenant and other items as mutually agreed
upon in writing, shall be the property of Landlord and shall remain upon and
be surrendered with the Premises at the termination of this Lease without
molestation or injury. Except for improvements to the Premises pursuant to
Section 35, upon request by Landlord, Tenant, at Tenant's expense, shall
remove any and all special improvements to the Premises or Common Areas made
by or on behalf of Tenant, including, without limitation, supplemental HVAC
and raised flooring. If Tenant fails to remove any such items, Landlord shall
have the right, but not the obligation, to remove and dispose of such items,
and restore the Premises accordingly and Tenant shall reimburse Landlord for
the costs of such removal, disposal and restoration within thirty (30) days
after receipt of an invoice therefore, together with interest at the Default
Rate, which shall accrue from the date the costs were incurred by Landlord.
11. Repairs and Maintenance.
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11.1 Tenant's Care of the Premises and Building. During the Term
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Tenant shall:
(i) keep the Premises and the fixtures, appurtenances and
improvements therein in good order and condition, ordinary wear and tear
excepted;
(ii) make repairs and replacements to the Premises required
because of Tenant's misuse or primary negligence, except to the extent that
the repairs or replacements are covered by Landlord's insurance as required
hereunder;
(iii) repair and replace special equipment or decorative treatments
installed by or at Tenant's request and that serve the Premises only, except
to the extent the repairs or replacements are needed because of Landlord's
misuse or primary negligence, and are not covered by Tenant's insurance as
required hereunder;
(iv) pay for all damage to the Building, its fixtures and
appurtenances, as well as all damages sustained by Tenant or occupants of the
Building due to any waste, misuse or neglect of the Premises, its fixtures
and appurtenances by Tenant, except to the extent that the repair of such
damage is covered by Landlord's insurance as required hereunder to the extent
that Landlord actually receives proceeds therefrom; and
(v) not commit waste.
In addition Tenant shall not place a load upon any floor of the Premises
exceeding the floor load per square foot area which such floor was designed
to carry and which may be allowed under Applicable Laws. Landlord reserves
the right to prescribe the weight and position of all heavy equipment brought
onto the Premises and prescribe any reinforcing required under the
circumstances, all such reinforcing to be at Tenant's expense.
11.2 Landlord's Repairs. Except for the repairs and replacements that
------------------
Tenant is required to make pursuant to Section 11.1 above, Landlord shall
make all other repairs and replacements to the Premises, Common Areas and
Building (including Building fixtures and
equipment) as shall be reasonably deemed necessary to maintain the Building
in a condition comparable to other first class suburban office buildings in
the Baltimore-Washington corridor area. This maintenance shall include the
roof, foundation, exterior walls, interior structural walls, all structural
components, and all systems such as mechanical, electrical, multi-tenant
HVAC, and plumbing. The costs associated with such repairs shall be deemed a
part of Building Expenses; provided, however, that costs of all of such
repairs which would be considered capital in nature under generally accepted
accounting principles shall be paid by Landlord. There shall be no allowance
to Tenant for a diminution of rental value, no abatement of rent, and no
liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from Landlord, Tenant or others making any repairs
or performing maintenance as provided for herein.
11.3 Time for Repairs. Repairs or replacements required pursuant to
----------------
Section 11.1 and 11.2 above shall be made within a reasonable time (depending
on the nature of the repair or replacement needed - generally no more than
fifteen (15) days) after receiving notice or having actual knowledge of the
need for a repair or replacement.
11.4 Surrender of the Premises. Upon the termination of this Lease,
-------------------------
without the need for prior notice from Landlord, Tenant shall surrender the
Premises to Landlord in the same broom clean condition that the Premises were
in on the Commencement Date except for:
(i) ordinary wear and tear;
(ii) damage by the elements, fire, and other casualty unless
Tenant would be required to repair under the provisions of this Lease;
(iii) damage arising from any cause not required to be repaired or
replaced by Tenant; and
(iv) alterations as permitted by this Lease unless consent was
conditioned on their removal.
On surrender Tenant shall remove from the Premises its personal
property, trade fixtures and any alterations required to be removed pursuant
to the terms of this Lease and repair any damage to the Premises caused by
this removal. Any items not removed by Tenant as required above shall be
considered abandoned. Landlord may dispose of abandoned items as Landlord
chooses and xxxx Tenant for the cost of their disposal.
12. Conduct on Premises. Tenant shall not do, or permit anything to be done
-------------------
in the Premises, or bring or keep anything therein which shall, in any way,
increase the rate of fire insurance on the Building, or invalidate or
conflict with the fire insurance policies on the Building, fixtures or on
property kept therein, or obstruct or interfere with the rights of Landlord
or of other tenants, or in any other way injure Landlord or the other
tenants, or subject Landlord to any liability for injury to persons or damage
to property, or interfere with the good order of the Building, or conflict
with Applicable Laws, or the Maryland Fire Underwriters Rating Bureau.
Tenant agrees that any increase of fire insurance premiums on the Building or
contents caused by the occupancy of Tenant and any expense or cost incurred
in consequence of negligence or carelessness or the willful action of Tenant,
Tenant's employees, agents, servants, or invitees shall, as they accrue be
added to the rent heretofore reserved and be paid as a part thereof; and
Landlord shall have all the rights and remedies for the collection of same as
are conferred upon Landlord for the collection of rent provided to be paid
pursuant to the terms of this Lease.
13. Insurance.
---------
13.1 Tenant's Insurance. Tenant shall keep in force at its own
------------------
expense, so long as this Lease remains in effect, (a) public liability
insurance, including insurance against assumed or contractual liability under
this Lease, with respect to the Premises, to afford protection with limits,
per person and for each occurrence, of not less than Two Million Dollars
($2,000,000), combined single limit, with respect to personal injury and
death and property damage, such insurance to provide for only a reasonable
deductible, (b) all-risk property and casualty
insurance, including theft, written at replacement cost value and with
replacement cost endorsement, covering all of Tenant's personal property in
the Premises and all improvements and installed in the Premises by or on
behalf of Tenant whether pursuant to the terms of Section 35, Section 10, or
otherwise, such insurance to provide for only a reasonable deductible, (c)
if, and to the extent, required by law, workmen's compensation or similar
insurance offering statutory coverage and containing statutory limits, and
(d) shall insure all interior plate and other interior glass in the Premises
for and in the name of Landlord. Such policies shall be maintained in
companies and in form reasonably acceptable to Landlord and shall be written
as primary policy coverage and not contributing with, or in excess of, any
coverage which Landlord shall carry. Tenant shall deposit the policy or
policies of such required insurance or certificates thereof with Landlord
prior to the Commencement Date, which policies shall name Landlord or its
designee and, at the request of Landlord, its mortgagees, as additional
insured and shall also contain a provision stating that such policy or
policies shall not be canceled except after thirty (30) days' written notice
to Landlord or its designees. All such policies of insurance shall be
effective as of the date Tenant occupies the Premises and shall be maintained
in force at all times during the Term of this Lease and all other times
during which Tenant shall occupy the Premises. In addition to the foregoing
insurance coverage, Tenant shall require any contractor retained by it to
perform work on the Premises to carry and maintain, at no expense to
Landlord, during such times as contractor is working in the Premises, a non-
deductible (i) comprehensive general liability insurance policy, including,
but not limited to, contractor's liability coverage, contractual liability
coverage, completed operations coverage, broad form property damage
endorsement and contractor's protective liability coverage, to afford
protection with limits per person and for each occurrence, of not less than
Two Hundred Thousand Dollars ($200,000.00), combined single limit, with
respect to personal injury and death and property damage, such insurance to
provide for no deductible, and (ii) workmen's compensation insurance or
similar insurance in form and amounts as required by law. In the event of
damage to or destruction of the Premises and the termination of this Lease by
Landlord pursuant to Section 18 herein, Tenant agrees that it shall pay
Landlord all of its insurance proceeds relating to improvements made in the
Premises by or on behalf of Tenant whether pursuant to the terms of Section
35, Section 10, or otherwise. If Tenant fails to comply with its covenants
made in this Section, if such insurance would terminate or if Landlord has
reason to believe such insurance is about to be terminated, Landlord may at
its option cause such insurance as it in its sole judgment deems necessary to
be issued, and in such event Tenant agrees to pay promptly upon Landlord's
demand, as additional rent the premiums for such insurance.
13.2 Landlord's Insurance. Landlord shall keep in force at its own
--------------------
expense (a) contractual and comprehensive general liability insurance,
including public liability and property damage, with a minimum combined
single limit of liability of Two Million Dollars ($2,000,000.00) for personal
injuries or death of persons occurring in or about the Building and Premises,
and (b) all-risk property and casualty insurance written at replacement cost
value covering the Building and all of Landlord's improvements in and about
same.
13.3 Waiver of Subrogation. Each party hereto waives claims arising in
---------------------
any manner in its favor and against the other party and agrees that neither
party hereto shall be liable to the other party or to any insurance company
(by way of subrogation or otherwise) insuring the other party for any loss or
damage to the Building, the Premises or other tangible property, or any
resulting loss of income, or losses under worker's compensation laws and
benefits, , even though such loss or damage might have been occasioned by the
negligence of such party, its agents or employees if any such loss or damage
is covered by insurance benefiting the party suffering such loss or damage as
was required to be covered by insurance carried pursuant to this Lease.
Landlord shall cause each insurance policy carried by it insuring the
Premises and the Building or income resulting therefrom against loss by fire
or any of the casualties covered by the all-risk insurance carried by it
hereunder to be written in such a manner as to provide that the insurer
waives all right of recovery by way of subrogation against Tenant in
connection with any loss or damage covered by such policies. Tenant shall
cause each insurance policy carried by it insuring the Premises (including
the contents thereof and Tenant's Improvements installed therein by Tenant or
on its behalf) against loss by fire or any of the casualties covered by the
all-risk insurance required hereunder to be written in such a manner as to
provide that the insurer waives all right of recovery by way of subrogation
against Landlord in connection with any loss or damage covered by such
policies.
14. Rules and Regulations. Tenant shall be bound by the rules and
---------------------
regulations set forth on the schedule attached hereto as Exhibit "B" and made
a part hereof. Landlord shall have the right, from time to time, to issue
additional or amended rules and regulations regarding the use of the
Building, so long as the rules shall be reasonable and non-discriminatory
between tenants. When so issued the same shall be considered a part of this
Lease and Tenant covenants that the additional or amended rules and
regulations shall likewise be faithfully observed by Tenant, the employees of
Tenant and all persons invited by Tenant into the Building, provided, that
the additional or amended rules are made applicable to all office tenants
similarly situated as Tenant. Landlord shall not be liable to Tenant for the
violation of any of the rules and regulations, or the breach of any covenant
or condition in any lease, by any other tenant in the Building, except as
otherwise provided in Section 36.
15. Mechanics' Liens. Tenant shall not do or suffer to be done any act,
----------------
matter or thing whereby Tenant's interest in the Premises, or any part
thereof, may be encumbered by any mechanics' lien. Tenant shall discharge or
bond off, within ten (10) days after the date of filing, any mechanics' liens
filed against Tenant's interest in the Premises, or any part thereof,
purporting to be for labor or material furnished or to be furnished to
Tenant, at Tenant's request, and other than pursuant to Section 35 of the
Lease. Other than as provided pursuant to Section 35, Landlord shall not be
liable for any labor or materials furnished or to be furnished to Tenant upon
credit, and no mechanics' or other lien for labor or materials shall attach
to or affect the reversionary or other estate or interest of Landlord in and
to the Premises, or the Property.
16. Tenant's Failure to Repair. In the event that Tenant fails after
--------------------------
reasonable prior written notice from Landlord, to keep the Premises in a good
state of condition and repair pursuant to Section 11 above, or to do any act
or make any payment required under this Lease or otherwise fails to comply
herewith, Landlord may, at its option (but without being obliged to do so)
immediately, or at any time thereafter and without notice, perform the same
for the account of Tenant, including the right to enter upon the Premises at
all reasonable hours to make such repairs, or do any act or make any payment
or compliance which Tenant has failed to do, and upon demand, Tenant shall
reimburse Landlord for any such expense incurred by Landlord including but
not limited to any costs, damages and reasonable counsel fees. Any moneys
expended by Landlord, as aforesaid, shall be deemed additional rent,
collectible as such by Landlord. All rights given to Landlord in this
Section shall be in addition to any other right or remedy of Landlord herein
contained.
17. Property -- Loss, Damage. Landlord, its agents and employees shall not
------------------------
be liable to Tenant for (i) any damage or loss of property of Tenant placed
in the custody of persons employed to provide services for or stored in or
about the Premises and/or the Building, unless such damage or loss is the
result of the negligence of Landlord, (ii) any injury or damage to persons,
property or the business of Tenant resulting from a latent defect in or
material change in the condition of the Building, and (iii) interference with
the light, air, or other incorporeal hereditaments of the Premises.
18. Destruction -- Fire or Other Casualty. In case of partial damage to the
-------------------------------------
Premises by fire or other casualty insured against by Landlord, Tenant shall
give immediate notice thereof to Landlord, who shall thereupon cause damage
to all property owned by it to be repaired with reasonable speed at expense
of Landlord, to the extent of insurance proceeds actually received by
Landlord, due allowance being made for reasonable delay which may arise by
reason of adjustment of loss under insurance policies on the part of Landlord
and/or Tenant, and for reasonable delay on account of "labor troubles" or any
other cause beyond Landlord's control, and to the extent that the Premises
are rendered untenantable the rent shall proportionately xxxxx from the date
of such casualty, provided the damage above mentioned occurred without the
fault or neglect of Tenant, Tenant's servants, employees, agents or visitors.
If such partial damage is due to the fault or neglect of Tenant, or Tenant's
servants, employees, agents, or invitees, the damage shall be repaired by
Landlord to the extent of Landlord's insurance coverage, but there shall be
no apportionment or abatement of rent. In the event the damage shall be so
extensive to the whole Building as to render it uneconomical, in Landlord's
opinion, to restore for its present uses and Landlord shall decide not to
repair or rebuild the Building, this Lease, at the option of Landlord, shall
be terminated upon written notice to Tenant and the rent shall, in such
event, be
paid to or adjusted as of the date of such damage, and the terms of this
Lease shall expire by lapse of time and conditional limitation upon the third
day after such notice is mailed, and Tenant shall thereupon vacate the
Premises and surrender the same to Landlord, but no such termination shall
release either party from any liability to the other arising from such damage
or from any breach of the obligations imposed on such party hereunder, or
from any obligations accrued hereunder prior to such termination.
19. Eminent Domain. If (1) the whole or more than fifty percent (50%) of
--------------
the floor area of the Premises shall be taken or condemned by Eminent Domain
for any public or quasi-public use or purpose, and either party shall elect,
by giving written notice to the other, or (2) more than twenty-five percent
(25%) of the floor area of the Building shall be so taken, and Landlord shall
elect, in its sole discretion, by giving written notice to Tenant, any
written notice to be given not more than sixty (60) days after the date on
which title shall vest in such condemnation proceeding, to terminate this
Lease, then, in either such event, the Term of this Lease shall cease and
terminate as of the date of title vesting. In case of any taking or
condemnation, whether or not the Term of this Lease shall cease and
terminate, the entire award shall be the property of Landlord, and Tenant
hereby assigns to Landlord all its right, title and interest in and to any
such award, except that Tenant shall be entitled to claim, prove and receive
in the proceedings such awards as may be allowed for moving expenses, loss of
profit and fixtures and other equipment installed by it which shall not,
under the terms of this Lease, be or become the property of Landlord at the
termination hereof, but only if such awards shall be made by the
condemnation, court or other authority in addition to, and be stated
separately from, the award made by it for the Property or part thereof so
taken.
20. Assignment. So long as Tenant is not in default of any of the terms and
----------
conditions hereof, after the giving of all required notices and the
expiration of all cure periods, Landlord shall not unreasonably withhold its
consent to an assignment of this Lease or sublease of the Premises for any of
the then remaining portion of the unexpired Term provided: (i) the net
assets of the assignee or sublessee shall be sufficient in Landlord's
reasonable determination; (ii) in the event of an assignment, such assignee
shall assume in writing all of Tenant's obligations under this Lease; (iii)
in the event of a sublease, such sublease shall in all respects be subject to
and in conformance with the terms of this Lease; and (iv) in all events
Tenant continues to remain liable on this Lease for the performance of all
terms, including but not limited to, payment of all rent due hereunder. In
no event shall the proposed assignee or sublessee be occupying other space in
the Building, nor shall it be a prospective tenant either then negotiating
with Landlord or has negotiated with Landlord for premises within the prior
six (6) month period. Landlord and Tenant acknowledge and agree that it
shall not be unreasonable for Landlord to withhold its consent to an
assignment if in Landlord's reasonable business judgment, the assignee lacks
sufficient business experience or net worth to successfully operate its
business within the Premises in accordance with the terms, covenants and
conditions of this Lease. If this Lease be assigned, or if the Premises or
any part thereof be sublet or occupied by anybody other than Tenant, Landlord
may, after default by Tenant, collect rent from the assignee, subtenant or
occupant and apply the net amount collected to the rent herein reserved, but
no such collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, subtenant or occupant as tenant, or a release of
Tenant from the further observance and performance by Tenant of the covenants
herein contained. In addition, in the event of a proposed assignment,
Landlord shall have the right, but not the obligation, to terminate this
Lease by giving Tenant thirty (30) days' advance written notice ("Landlord's
Termination Notice"); provided, however, that Tenant shall have the right to
abrogate Landlord's Termination Notice by notifying Landlord within ten (10)
days after receipt of Landlord's Termination Notice of the withdrawal of the
request for consent to the assignment. For purposes of the foregoing, a
transfer by operation of law shall be deemed to be an assignment of this
Lease. No assignment or sublease, regardless of whether Landlord's consent
has been granted or withheld, shall be deemed to release Tenant from any of
its obligations nor shall the same be deemed to release any person
guaranteeing the obligations of Tenant hereunder from their obligations as
guarantor. Landlord's acceptance of any name submitted by Tenant, an agent
of Tenant, or anyone acting by, through or under Tenant for the purpose of
being listed on the Building directory will not be deemed, nor will it
substitute for, Landlord's consent, as required by this Lease, to any
sublease, assignment, or other occupancy of the Premises by anyone other than
Tenant or Tenant's employees. Any profit or additional consideration or rent
in excess of the Base Rent or additional rent payable by Tenant
hereunder which is payable to Tenant as a result of any assignment or
subletting shall be paid to Landlord as additional rent when received by
Tenant. All the foregoing notwithstanding, Tenant shall not enter into any
lease, sublease, license, concession or other agreement for the use,
occupancy or utilization of the Premises or any portion thereof, which
provides for a rental or other payment for such use, occupancy or utilization
based in whole or in part on the income or profits derived by any person or
entity from the property leased, used, occupied or utilized. Any such
purported lease, sublease, license, concession or other agreement shall be
absolutely void and ineffective as a conveyance of any right or interest in
the possession, use or occupancy of any part of the Premises. Any consent by
Landlord hereunder shall not constitute a waiver of strict future compliance
by Tenant with the provisions of this Section 20. In no event shall the
proposed assignee or sublessee be occupying other space in the Building, nor
shall it be a prospective tenant either then negotiating with Landlord or has
negotiated with Landlord for premises within the prior six (6) month period.
21. Default; Remedies; Bankruptcy of Tenant. Any one or more of the
---------------------------------------
following events shall constitute an "Event of Default" hereunder, at
Landlord's election: (a) the sale of Tenant's interest in the Premises under
attachment, execution or similar legal process or, the adjudication of Tenant
as a bankrupt or insolvent, unless such adjudication is vacated within thirty
(30) days; (b) the filing of a voluntary petition proposing the adjudication
of Tenant (or any guarantor of Tenant's obligations hereunder) as a bankrupt
or insolvent, or the reorganization of Tenant (or any such guarantor), or an
arrangement by Tenant (or any such guarantor) with its creditors, whether
pursuant to the Federal Bankruptcy Code or any similar federal or state
proceeding, unless such petition is filed by a party other than Tenant (or
any such guarantor) and is withdrawn or dismissed within thirty (30) days
after the date of its filing; (c) the admission, in writing, by Tenant (or
any such guarantor) of its inability to pay its debts when due; (d) the
appointment of a receiver or trustee for the business or property of Tenant
(or any such guarantor), unless such appointment is vacated within thirty
(30) days of its entry; (e) the making by Tenant (or any such guarantor) of
an assignment for the benefit of its creditors, or if, in any other manner,
Tenant's interest in this Lease shall pass to another by operation of law;
(f) the failure of Tenant to pay any rent, additional rent or other sum of
money when due and such failure continues for a period of ten (10) days after
receipt of written notice that the same is past due hereunder; (g) if Tenant
fails to pay any rent or additional rent when due after Landlord shall have
given Tenant written notice with respect to such non-payment twice in any
twelve (12) month period as provided in subsection (f) above; (h) Tenant
shall fail to move into or take possession of the Premises within thirty (30)
days after commencement of the Term or having taken possession shall
thereafter abandon and/or vacate the Premises; and (i) the default by Tenant
in the performance or observance of any covenant or agreement of this Lease
(other than a default involving the payment of money), which default is not
cured within thirty (30) days after the giving of notice thereof by Landlord,
unless such default is of such nature that it cannot be cured within such
thirty (30) day period, in which case no Event of Default shall occur so long
as Tenant shall commence the curing of the default within such thirty (30)
day period and shall thereafter diligently prosecute the curing of same.
Provided such Event of Default is not then subject to any judicial or
administrative proceeding between or among Landlord and Tenant and/or any
other party, upon the occurrence and continuance of an Event of Default,
Landlord, with such notice to Tenant as provided for by law or as expressly
provided for herein, may do any one or more of the following: (a) sell, at
public or private sale, all or any part of the goods, chattels, fixtures and
other personal property belonging to Tenant which are or may be put into the
Premises during the Term, whether or not exempt from sale under execution or
attachment (it being agreed that the property shall at all times be bound
with a lien in favor of Landlord and shall be chargeable for all rent and for
the fulfillment of the other covenants and agreements herein contained), and
apply the proceeds of such sale, first, to the payment of all costs and
expenses of conducting the sale or caring for or storing the property;
second, toward the payment of any indebtedness, including, without
limitation, indebtedness for rent, which may be or may become due from Tenant
to Landlord; and third, to pay Tenant, on demand in writing, any surplus
remaining after all indebtedness of Tenant to Landlord has been fully paid;
(b) perform, on behalf and at the expense of Tenant, any obligation of Tenant
under this Lease which Tenant has failed to perform and of which Landlord
shall have given Tenant notice, the cost of which performance by Landlord,
together, with interest thereon at the rate of eighteen percent (18%) per
annum, from the date of such
expenditure, shall be deemed additional rent and shall be payable by Tenant
to Landlord upon demand; (c) elect to terminate this Lease and the tenancy
created hereby by giving notice of such election to Tenant in which event
Tenant shall be liable for Base Rent, additional rent, and other indebtedness
that otherwise would have been payable by Tenant during the remainder of the
Term had there been no Event of Default, and on notice reenter the Premises,
by summary proceedings or otherwise, and remove Tenant and all other persons
and property from the Premises, and store such property in a public warehouse
or elsewhere at the cost and for the account of Tenant, without resort to
legal process and without Landlord being deemed guilty of trespass or
becoming liable for any loss or damage occasioned thereby; and also the right
to re-let the Premises for any unexpired balance of the Term, and collect the
rent therefor. In the event of such re-letting by Landlord, the re-letting
shall be on such terms, conditions and rental as Landlord may deem proper,
and the proceeds that may be collected from the same, less the expense of re-
letting (including reasonable leasing fees and commissions and reasonable
costs of renovating the Premises), shall be applied upon Tenant's rental
obligation as set forth in this Lease for the unexpired portion of the Term.
Tenant shall be liable for any balance that may be due under this Lease,
although Tenant shall have no further right of possession of the Premises;
and (d) exercise any other legal or equitable right or remedy which it may
have at law or in equity. Notwithstanding the provisions of clause (b) above
and regardless of whether an Event of Default shall have occurred, Landlord
may exercise the remedy described in clause (b) without any notice to Tenant
if Landlord, in its good faith judgment, believes it would be materially
injured by the failure to take rapid action, or if the unperformed obligation
of Tenant constitutes an emergency.
TO THE EXTENT PERMITTED BY LAW, TENANT HEREBY EXPRESSLY WAIVES ANY AND
ALL RIGHTS OF REDEMPTION, GRANTED BY OR UNDER ANY PRESENT OR FUTURE LAWS IN
THE EVENT OF TENANT'S BEING EVICTED OR DISPOSSESSED FOR ANY CAUSE, OR IN THE
EVENT OF LANDLORD'S OBTAINING POSSESSION OF THE PREMISES, BY REASON OF THE
VIOLATION BY TENANT OF ANY OF THE COVENANTS AND CONDITIONS OF THIS LEASE, OR
OTHERWISE. LANDLORD AND TENANT HEREBY EXPRESSLY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST
THE OTHER PARTY ON ANY AND EVERY MATTER, DIRECTLY OR INDIRECTLY ARISING OUT
OF OR WITH RESPECT TO THIS LEASE, INCLUDING, WITHOUT LIMITATION, THE
RELATIONSHIP OF LANDLORD AND TENANT, THE USE AND OCCUPANCY BY TENANT OF THE
PREMISES, ANY STATUTORY REMEDY AND/OR CLAIM OF INJURY OR DAMAGE REGARDING
THIS LEASE.
Any costs and expenses incurred by Landlord (including, without
limitation, reasonable attorneys' fees) in enforcing any of its rights or
remedies under this Lease shall be deemed to be additional rent and shall be
repaid to Landlord by Tenant upon demand.
Notwithstanding any of the other provisions of this Lease, in the event
Tenant shall voluntarily or involuntarily come under the jurisdiction of the
Federal Bankruptcy Code and thereafter Tenant or its trustee in bankruptcy,
under the authority of and pursuant to applicable provisions thereof, shall
have the power and so using same determine to assign this Lease, Tenant
agrees that (i) Tenant or its trustee shall provide to Landlord sufficient
information enabling it to independently determine whether Landlord will
incur actual and substantial detriment by reason of such assignment and (ii)
"adequate assurance of future performance" under this Lease, as that term is
generally defined under the Federal Bankruptcy Code, shall be provided to
Landlord by Tenant and its assignee as a condition of the assignment.
Notwithstanding anything to the contrary contained herein, Tenant shall
be considered in "Habitual Default" of this Lease upon Tenant's failure, on
two (2) or more occasions during any twelve month period to pay within ten
(10) days after written notice that any installment of Base Rent is due
required by the terms of this Lease. Upon the occurrence of an event of
Habitual Default on the part of Tenant, then without limiting any other
rights or remedies to which Landlord may be entitled as a result of such
defaults: (i) Tenant shall immediately be deemed to have relinquished any
and all options or rights granted, or to be granted, to Tenant under the
terms of this Lease or any amendment hereto (including, without limitation,
rights of renewal, rights to terminate, rights of first offer or rights of
first refusal); and (ii) in the event of a
monetary event of Habitual Default, Tenant shall thereafter pay all Base Rent
and additional rent and other sums whatsoever due under this Lease in cash,
by money order or by certified check or cashier's check.
22. Damages. If this Lease is terminated by Landlord pursuant to Section
-------
21, Tenant shall, nevertheless, remain liable for all rent and damages which
may be due or sustained prior to such termination, and all reasonable costs,
fees and expenses including, but not limited to, attorneys' fees, costs and
expenses incurred by Landlord in pursuit of its remedies hereunder, or in
renting the Premises to others from time to time and additional damages (the
"Liquidated Damages"), which shall be an amount equal to the total rent
which, but for termination of this Lease, would have become due during the
remainder of the Term, less the amount of rent, if any, which Landlord shall
receive during such period from others to whom the Premises may be rented
(other than any additional rent received by Landlord as a result of any
failure of such other person to perform any of its obligations to Landlord),
in which case such Liquidated Damages shall be computed and payable in
monthly installments, in advance on the first day of each calendar month
following termination of the Lease and continuing until the date on which the
Term would have expired but for such termination, and any suit or action
brought to collect any such Liquidated Damages for any month shall not in any
manner prejudice the right of Landlord to collect any Liquidated Damages for
any subsequent month by a similar proceeding.
If this Lease is terminated pursuant to Section 21, Landlord may relet
the Premises or any part thereof, alone or together with other premises, for
such term(s) which may be greater or less than the period which otherwise
would have constituted the balance of the Term and on such terms and
conditions (which may include concessions, free rent and/or alterations of
the Premises) as Landlord, in its sole discretion, may determine, but
Landlord shall not be liable for, nor shall Tenant's obligations hereunder be
diminished by reason of, any failure by Landlord to relet the Premises or any
failure by Landlord to collect any rent due upon such reletting.
23. Services and Utilities. Landlord shall provide the following listed
----------------------
services and utilities, namely:
(a) heating, ventilation, and air conditioning ("HVAC") for the Premises
during "Normal Business Hours" (as defined below) to maintain temperatures
for comfortable use and occupancy;
(b) electric energy in accordance with Section 24 following;
(c) automatic passenger elevators providing adequate service leading to
the floor on which the Premises are located;
(d) evening, unescorted janitorial services to the Premises including
removal of trash;
(e) hot and cold water sufficient for drinking, lavatory toilet and
ordinary cleaning purposes from fixtures either within the Premises (if
provided pursuant to this Lease) or on the floor on which the Premises are
located;
(f) replacement of lighting tubes, lamp ballasts and bulbs;
(g) extermination and pest control when and if necessary; and
(h) maintenance of Common Areas in a manner comparable to other first
class suburban office buildings in the Baltimore-Washington corridor.
Notwithstanding the foregoing, if at any time during the Term, Landlord
shall, after reasonable investigation determine that trash and similar waste
generated by Tenant and/or emanating from the Premises is in excess of that
of other standard office tenants within the Building leasing a premises of
the same or similar size to that of the Premises, Landlord shall xxxx Tenant
and Tenant shall pay to Landlord as additional rent hereunder within thirty
(30) days of the date of Landlord's invoice for the same, those costs and
expenses of trash removal which are reasonably attributable to such excess
trash and similar waste generated by Tenant and/or
emanating from the Premises. "Normal Business Hours" as used herein is
defined from 8:00 a.m. to 6:00 p.m. on business days and from 8:00 a.m. to
1:00 p.m. on Saturdays. Landlord shall have no responsibility to provide any
services under (a) above except during Normal Business Hours unless
arrangements for after-hours services have been made pursuant to terms and
conditions acceptable to Landlord and embodied in a separate written
agreement between Landlord and Tenant. Landlord reserves the right to stop
service of the HVAC, elevator, plumbing and electric systems, when necessary,
by reason of accident, or emergency, or for repairs, alterations,
replacements, or improvements, which in the judgment of Landlord are
desirable or necessary to be made, until the repairs, alterations,
replacements, or improvements shall have been completed. Landlord shall have
no responsibility or liability for failure to supply HVAC, elevator,
plumbing, cleaning, and electric service, during the period when prevented
from so doing by laws, orders, or regulations of any Federal, State, County
or Municipal authority or by strikes, accidents or by any other cause
whatsoever beyond Landlord's control. Landlord's obligations to supply HVAC
are subject to applicable laws and regulations as to energy conservation and
other such restrictions. In the event that Tenant should require
supplemental HVAC for the Premises, any maintenance repair and/or replacement
required for such supplemental service shall be performed by Landlord but the
cost of such maintenance repair and/or replacement (including labor and
materials) shall be paid by Tenant as additional rent.
24. Electric Current. Throughout the Term Landlord shall furnish Tenant
----------------
without additional charge during Normal Business Hours (as defined in Section
23) a reasonable amount of electric current at 110 volts ("Normal Usage
Amount") for lighting purposes within the Premises and the powering of a
normal amount of office equipment and appliances. "Normal Usage Amount" is
defined for purposes of this Lease to mean electric power supplied at the
rate of three (3) xxxxx per square foot of Premises. In this regard Tenant
agrees as follows:
(1) If Landlord reasonably determines based upon engineering studies of
electrical load consumed that Tenant is materially exceeding the Normal Usage
Amount Tenant shall pay to Landlord such amounts as additional rent as will
equitably reimburse Landlord for the cost of the extra electric power so
consumed by Tenant;
(2) If Tenant shall desire to place and install in the Premises electric
equipment or appliances other than normal and typical to general office usage
it shall pay for such installations including any additional electric lines
and facilities required and shall pay for the electric power used in such
equipment if same exceeds Normal Usage Amount.
Landlord has advised Tenant that presently Baltimore Gas & Electric
("Electric Service Provider") is the utility company selected by Landlord to
provide electricity to the Building. Notwithstanding the foregoing, if
permitted by law, Landlord shall have the right at any time and from time to
time during the Term to either contract for service from a different company
or companies providing electricity service (each such company shall
hereinafter be referred to as an "Alternative Service Provider") or continue
to contract for service from the Electric Service Provider.
Tenant shall cooperate with Landlord, the Electric Service Provider and
any Alternate Service Provider at all times and, as reasonably necessary,
shall allow Landlord, the Electric Service Provider, and any Alternative
Service Provider reasonable access to the Building's electric lines, feeders,
risers, wiring and any other machinery within the Premises, provided that
Landlord shall use its reasonable efforts to minimize its interference with
Tenant's business in the Premises.
25. Telephone and Telecommunications. Landlord has arranged for the
--------------------------------
installation of telephone service within the Building to the ground floor
telephone utility closet and conduit to the ground floor telephone and
electrical riser closets. Tenant shall be responsible for contacting the
utility company supplying the telephone service and arranging to have such
telephone facilities as it may desire to be extended and put into operation
in the Premises, including without limitation, obtaining a low voltage permit
for phone and data wiring. Tenant acknowledges and agrees that all telephone
and telecommunications services desired by Tenant shall be ordered and
utilized at the sole expense of Tenant. All costs related to installation
and
the provision of such service shall be borne and paid for directly by Tenant.
Upon request by Landlord, Tenant, at Tenant's expense, shall remove the
telephone facilities at the expiration or sooner termination of the Term.
Tenant shall obtain the requisite permit and complete the ceiling work in
cooperation with Landlord in order not to interfere with or delay the
completion of the Tenant Improvements by Landlord pursuant to Section 35,
including, without limitation, the closing of the ceiling and the carpet
installation, if applicable. Landlord will allow Tenant access for wiring,
including electric, data and telecom, within the Building's public areas and
designated chases, but will not guarantee access of the wiring through
another tenant's space. Tenant, at Tenant's expense, shall be responsible for
the relocation and its associated costs, if requested, of any data, telecom
or electrical wiring that runs through another tenant's space, including the
plenum area or otherwise.
In the event Tenant wishes to utilize the services of a telephone or
telecommunications provider whose equipment is not servicing the Building at
such time Tenant wishes to install its telecommunications equipment serving
the Premises ("Provider"), no such Provider shall be permitted to install its
lines or other equipment without first securing the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Prior to the
commencement of any work in or about the Building by the Provider, the
Provider shall agree to abide by such rules and regulations, job site rules,
and such other requirements as reasonably determined by Landlord to be
necessary to protect the interest of the Building and Property, the other
tenants and occupants of the Building and Landlord, including, without
limitation, providing security in such form and amount as reasonable
determined by Landlord. Each Provider must be duly licensed, insured and
reputable. Landlord shall incur no expense whatsoever with respect to any
aspect of Provider's provision of its services, including without limitation,
the costs of installation, materials and service.
In addition, Landlord reserves exclusively to itself and its successors
and assigns the right to install, operate, maintain, repair, replace and
remove fiber optic cable and conduit and associated equipment and
appurtenances within the Building and the Premises so as to provide
telecommunications service to and for the benefit of tenants and other
occupants of the Building.
26. Acceptance of Premises. Tenant shall have reasonable opportunity,
----------------------
provided it does not thereby interfere with Landlord's work, to examine the
Premises to determine the condition thereof. Upon taking possession of the
Premises, Tenant shall be deemed to have accepted same as being satisfactory
and in the condition called for hereunder, except for latent defects and
punch list items previously noted to Landlord.
27. Inability to Perform. This Lease and the obligation of Tenant to pay
--------------------
rent hereunder and perform all of the other covenants and agreements
hereunder on the part of Tenant to be performed shall in no way be affected,
impaired or excused because Landlord is unable to fulfill any of its
obligations under this Lease or to supply, or is delayed in supplying, any
service to be supplied by it under the terms of this Lease or is unable to
make, or is delayed in making any repairs, additions, alterations, or
decorations or is unable to supply, or is delayed in supplying, any equipment
or fixtures if Landlord is prevented or delayed from so doing by reason of
strikes or labor troubles or any outside cause whatsoever including, but not
limited to, governmental preemption in connection with a National Emergency,
or by reason of any rule, order or regulation of any department or
subdivision of any government agency or by reason of the conditions of supply
and demand which have been or are affected by war or other emergency.
Similarly, Landlord shall not be liable for any interference with any
services supplied to Tenant by others if such interference is caused by any
of the reasons listed in this Section. Nothing contained in this Section
shall be deemed to impose any obligation on Landlord not expressly imposed by
other sections of this Lease.
28. No Waivers. The failure of either party to insist, in any one or more
----------
instances, upon a strict performance of any of the covenants of this Lease
binding upon the other party, or to exercise any option herein contained,
shall not be construed as a waiver, or a relinquishment for the future, of
such covenant or option, but the same shall continue and remain in full force
and effect as to such other party. The receipt by Landlord of rent, with
knowledge of the breach of any covenant hereof, shall not be deemed a waiver
of such breach, and no waiver by either party of any provision hereof shall
be deemed to have been made unless expressed in writing and
signed by the party against whom the waiver is to be enforced.
29. Access to Premises and Change in Services. Landlord shall have the
-----------------------------------------
right, without abatement of rent, to enter the Premises at any hour to
examine the same, or to make such repairs and alterations as Landlord shall
deem necessary for the safety and preservation of the Building, and also to
exhibit the Premises to be let; provided, however, that except in the case of
emergency such entry shall only be after reasonable notice first given to
Tenant. If, during the last month of the Term, Tenant shall have removed all
or substantially all of Tenant's property therefrom, Landlord may immediately
enter and alter, renovate and redecorate the Premises, without elimination or
abatement of rent, or incurring liability to Tenant for any compensation, and
such acts shall have no effect upon this Lease. Nothing herein contained,
however, shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, supervision or repair,
of the Building or any part thereof, other than as herein elsewhere expressly
provided. Landlord shall also have the right at any time, without the same
constituting an actual or constructive eviction and without incurring any
liability to Tenant therefor, to change the arrangement and/or location of
entrances or passageways, doors and doorways, and corridors, stairs, toilets,
elevators, or other public parts of the Building, and to change the name by
which the Building is commonly known and/or its mailing address.
30. Estoppel Certificates. Tenant agrees, at any time and from time to
---------------------
time, upon not less than ten (10) days' prior request by Landlord to execute,
acknowledge and deliver to Landlord an estoppel certificate substantially in
the form attached hereto as Exhibit "D" or such other reasonable form
requested by Landlord which certifies that this Lease is unmodified and in
full force (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications) and the dates
through which the rent and other charges have been paid in advance, if any,
and stating whether or not to the best knowledge of the signer of such
certificate Landlord is in default in performance of any covenant, agreement
or condition contained in this Lease and, if so, specifying each such default
of which the signer may have knowledge, it being intended that any such
statement delivered hereunder may be relied upon by third parties not a party
to this Lease.
31. Subordination. Tenant accepts this Lease, and the tenancy created
-------------
hereunder, subject and subordinate to any mortgages, overleases, leasehold
mortgages or other security interests now or hereafter a lien upon or
affecting the Building or the Property or any part thereof. Tenant shall, at
any time hereafter, within ten (10) days after request from Landlord, execute
a Subordination, Non-Disturbance Agreement or any instruments or leases or
other documents that may be required by any mortgage or mortgagee or
overlandlord (herein a "Mortgagee") for the purpose of subjecting or
subordinating this Lease and the tenancy created hereunder to the lien of any
such mortgage or mortgages or underlying lease, and the failure of Tenant to
execute any such instruments, releases or documents shall constitute a
default hereunder.
32. Attornment. Tenant agrees that upon any termination of Landlord's
----------
interest in the Premises, Tenant shall, upon request, attorn to the person or
organization then holding title to the reversion of the Premises (the
"Successor") and to all subsequent Successors, and shall pay to the Successor
all of the rents and other monies required to be paid by Tenant hereunder and
perform all of the other terms, covenants, conditions and obligations in this
Lease contained; provided, however, that if in connection with such
attornment Tenant shall so request from such Successor in writing, such
Successor shall execute and deliver to Tenant an instrument wherein such
Successor agrees that as long as Tenant performs all of the terms, covenants
and conditions of this Lease, on Tenant's part to be performed, Tenant's
possession under the provisions of this Lease shall not be disturbed by such
Successor. In the event that the Mortgagee succeeds to the interest of
Landlord hereunder and is advised by its counsel that all or any portion of
the Base Rent or additional rent payable by Tenant hereunder is or may be
deemed to be unrelated business income within the meaning of the United
States Internal Revenue Code or regulations issued thereunder, Mortgagee, as
Landlord, shall have the right at any time, from time to time, to notify
Tenant in writing of the required changes to the Lease. Tenant shall execute
all documents necessary to effect any such amendment within ten (10) days
after written request from Mortgagee, as landlord, provided that in no event
shall such amendment increase Tenant's payment obligations or other liability
under this Lease or reduce Landlord's obligations hereunder.
33. Notices. All notices and other communications to be made hereunder
-------
shall be in writing and shall be delivered to the addresses set forth below
by any of the following means: (a) personal service or receipted courier
service; (b) telecopying (if confirmed in writing sent by the methods
specified in clauses (a), (c) or (d) of this Section), (c) registered or
certified first class mail, return receipt requested, or (d) nationally-
recognized overnight delivery service. Such addresses may be changed by
notice to the other parties given in the same manner as provided above. Any
notice or other communication sent pursuant to clause (a) or (b) hereof shall
be deemed received upon such personal service or upon dispatch by electronic
means, if sent pursuant to subsection (c) shall be deemed received five (5)
days following deposit in the mail and/or if sent pursuant to subsection (d)
shall be deemed received the next succeeding business day following deposit
with such nationally recognized overnight delivery service.
If to Landlord: COPT CONCOURSE, LLC
c/o Corporate Office Properties, L.P.
0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Telecopier: 000-000-0000
If to Tenant: At the Premises and to Tenant's Notice Address.
Any party may designate a change of address by written notice to the above
parties, given at least ten (10) days before such change of address is to
become effective.
34. Relocation. Landlord reserves the right at any time prior to the
----------
Commencement Date or during the Term upon sixty (60) days' prior written
notice to relocate Tenant within the Building provided: (1) the new location
is similar in size and floor plan, with similar outside views; (2) that
Tenant approves the location and size of the new premises and (3) Landlord
pays all reasonable moving costs incurred by Tenant in connection with such
move. If Landlord exercises this right, the written notice to Tenant shall
include a drawing showing the size and location of the new premises. If
Tenant approves the new location, the parties shall execute an amendment to
this Lease which will specify the change in premises and, if applicable, the
rent, but this Lease shall in no other respect be amended and the rent
payable hereunder shall not xxxxx except for the period actually involved in
the moving of Tenant and except as may be modified as relating to the new
premises. If Tenant does not send Landlord written notice of its disapproval
of the proposed relocation within the sixty (60) day period, Tenant shall be
conclusively presumed to have approved the same. If Tenant shall send a
notice disapproving the proposed relocation during the sixty (60) day period,
then Landlord, at its option, may rescind the notice of relocation (in which
event this Lease shall continue to the same extent as if no such notice had
been sent). Landlord shall make its election within ten (10) days following
the first sixty (60) day period and shall give Tenant written notice thereof
specifying its election.
35. Tenant's Space. Landlord shall cause all work necessary to complete the
--------------
improvements to the Premises in accordance with Exhibit "C" (the "Tenant
Improvements"). If Tenant requests Landlord to make any improvements to the
Premises other than the Tenant Improvements, Tenant shall reimburse Landlord
for the costs incurred in connection therewith, such costs to be paid by
Tenant within thirty (30) days after receipt of a written invoice from
Landlord, together with reasonable supporting documentation. The cost of
any work which is not described as Tenant Improvements but for which Tenant
requests performance thereof, shall include all actual and reasonable costs
of labor and materials incurred by Landlord in the performance of such work,
plus ten percent (10%) for overhead and five percent (5%) for profit. At
Tenant's request, Landlord shall fully cooperate with Tenant to establish the
costs or estimates in advance of performing the work that is not included as
the Tenant Improvements.
36. Quiet Enjoyment. Tenant, upon the payment of rent and the performance
---------------
of all the terms of this Lease, shall at all times during the Term peaceably
and quietly enjoy the Premises without any disturbance from Landlord or any
other person claiming through Landlord.
37. Vacation of Premises. Tenant shall vacate the Premises at the end of
--------------------
the Term. If Tenant
fails to vacate at such time there shall be payable to Landlord an amount
equal to one hundred fifty percent (150%) of the monthly Base Rent stated in
Section 1.1.6 paid immediately prior to the holding over period for each
month or part of a month that Tenant holds over, plus all other payments
provided for herein, and the payment and acceptance of such payments shall
not constitute an extension or renewal of this Lease. In event of any such
holdover, Landlord shall also be entitled to all remedies provided by law for
the speedy eviction of tenants, and to the payment of all attorneys' fees and
expenses incurred in connection therewith.
38. Members' Liability. It is understood that the Owner of the Building is
------------------
a Maryland limited liability company. All obligations of the Owner hereunder
are limited to the net assets of the Owner from time to time. No member of
Owner, or of any successor partnership, whether now or hereafter a member,
shall have any personal responsibility or liability for the obligations of
Owner hereunder.
39. Separability. If any term or provision of this Lease or the application
------------
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease or the application of such term or
provision of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
40. Indemnification.
---------------
40.1 Tenant's Indemnification. Tenant shall indemnify and hold
------------------------
harmless Landlord and all of its and their respective members, partners,
directors, officers, agents and employees from any and all liability, loss,
cost or expense arising from all third-party claims resulting from or in
connection with:
40.1.1 the conduct or management of the Premises or of any
business therein, or any work or thing whatsoever done, or any condition
created in or about the Premises during the Term of this Lease or during the
period of time, if any, prior to the Commencement Date that Tenant may have
been given access to the Premises if a result of acts covered by Section
40.1.2 below;
40.1.2 any act, omission or negligence of Tenant or any of its
subtenants or licensees or its or their partners, directors, officers,
agents, employees, invitees or contractors; and
40.1.3 any accident, injury or damage whatever occurring in, at or
upon the Premises other than those items covered under Landlord's indemnity
as described in Section 40.2;
together with all costs and expenses reasonably incurred or paid in
connection with each such claim or action or proceeding brought thereon,
including, without limitation, all reasonable attorney's fees and expenses.
In case any action or proceeding is brought against Landlord and/or any
of its and their respective partners, directors, officers, agents or
employees and such claim is a claim from which Tenant is obligated to
indemnify Landlord pursuant to this Section, Tenant, upon written notice from
Landlord shall resist and defend such action or proceeding (by counsel
reasonably satisfactory to Landlord). The obligations of Tenant under this
Section shall survive termination of this Lease for a period of one (1) year.
40.2 Landlord's Indemnification. Landlord shall indemnify and hold
--------------------------
harmless Tenant and all of its and their respective members, partners,
directors, officers, agents and employees from any and all liability, loss,
cost or expense arising from all third-party claims resulting from or in
connection with:
40.2.1 the conduct or management of the Building or of any
business therein, or any work or thing whatsoever done, or any condition
created in or about the Building during the
Term of this Lease; and
40.2.2 any act, omission or negligence of Landlord or any of its
subtenants or licensees or its or their partners, members, directors,
officers, agents, employees, invitees or contractors; and
together with all costs and expenses reasonably incurred or paid in
connection with each such claim or action or proceeding brought thereon,
including, without limitation, all reasonable attorney's fees and expenses.
In case any action or proceeding is brought against Tenant and/or any of
its and their respective partners, members, directors, officers, agents or
employees and such claim is a claim from which Landlord is obligated to
indemnify Tenant pursuant to this Section, Landlord, upon written notice from
Tenant shall resist and defend such action or proceeding (by counsel
reasonably satisfactory to Tenant). The obligations of Landlord under this
Section shall survive termination of this Lease for a period of one (1) year.
41. Captions. All headings anywhere contained in this Lease are intended
--------
for convenience or reference only and are not to be deemed or taken as a
summary of the provisions to which they pertain or as a construction thereof.
42. Brokers. Tenant represents that Tenant has dealt directly with, only
-------
with, the Broker as broker in connection with this Lease, and Tenant warrants
that no other broker negotiated this Lease or is entitled to any commissions
in connection with this Lease. Landlord shall pay the Broker pursuant to the
terms of a separate written agreement by and between Landlord and Broker.
43. Recordation. Tenant covenants that it shall not, without Landlord's
-----------
prior written consent, which consent may be withheld in Landlord's sole and
absolute discretion, record this Lease or any memorandum of this Lease or
offer this Lease or any memorandum of this Lease for recordation. If at any
time Landlord or any mortgagee of Landlord's interest in the Premises shall
require the recordation of this Lease or any memorandum of this Lease, such
recordation shall be at Landlord's expense. If at any time Tenant shall
require the recordation of this Lease or any memorandum of this Lease, such
recordation shall be at Tenant's expense. If the recordation of this Lease
or any memorandum of this Lease shall be required by any valid governmental
order, or if any government authority having jurisdiction in the matter shall
assess and be entitled to collect transfer taxes or documentary stamp taxes,
or both transfer taxes and documentary stamp taxes on this Lease or any
memorandum of this Lease, Tenant shall execute such acknowledgments as may be
necessary to effect such recordations and pay, upon request of Landlord, one
half of all recording fees, transfer taxes and documentary stamp taxes
payable on, or in connection with this Lease or any memorandum of this Lease
or such recordation.
44. Successors and Assigns. The covenants, conditions and agreements
----------------------
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant, and their respective heirs, personal representatives, successors and
assigns (subject, however, to the terms of Section 20 hereof).
45. Integration of Agreements. This writing is intended by the Parties as a
-------------------------
final expression of their agreement and is a complete and exclusive statement
of its terms, and all negotiations, considerations and representations
between the Parties are incorporated. No course of prior dealings between
the Parties or their affiliates shall be relevant or admissible to
supplement, explain, or vary any of the terms of this Lease. Acceptance of,
or acquiescence to, a course of performance rendered under this Lease or any
prior agreement between the Parties or their affiliates shall not be relevant
or admissible to determine the meaning of any of the terms or covenants of
this Lease. Other than as specifically set forth in this Lease, no
representations, understandings, or agreements have been made or relied upon
in the making of this Lease.
46. Hazardous Material; Indemnity. Tenant further agrees to the following:
-----------------------------
46.1 As used in this Lease, the following terms shall have the
following meanings:
46.1.1 "Environmental Laws" shall mean all federal, state or local
statutes, regulations, rules, ordinances, codes, licenses, permits, orders,
approvals, authorizations, agreements, ordinances, administrative or judicial
rulings or similar items relating to the protection of the environment or the
protection of human health, including, without limitation, all requirements
pertaining to reporting, licensing, permitting, investigation and remediation
of emissions, discharges, Releases or Threats of Releases (as defined below)
of Hazardous Materials into the air, surface water, groundwater or land, or
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials or relating
to storage tanks.
46.1.2 "Hazardous Materials" shall mean (i) any substance, gas,
material or chemical which is defined as or included in the definition of
"hazardous substances", "toxic substances", "hazardous materials", "hazardous
wastes" under any federal, state or local statute, law, or ordinance or under
the regulations adopted or guidelines promulgated pursuant thereto,
including, but not limited to, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9061 et
seq. ("CERCLA"); the Hazardous Materials Transportation Act, as amended 49
U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901, et seq.; (ii) radon gas in excess of four (4)
picocuries per liter, friable asbestos, urea formaldehyde foam insulation,
petroleum products, transformers or other equipment which contain dielectric
fluid containing levels of polychlorinated biphenyls in excess of federal, state
or local safety guidelines, whichever are more stringent; and (iii) any other
substance, gas, material or chemical, exposure to or release of which is
prohibited, limited or regulated by any governmental or quasi-governmental
entity or authority that asserts or may assert jurisdiction over the
Premises, the Building or the Property.
46.1.3 "Hazardous Materials Inventory" shall mean a comprehensive
inventory of all Hazardous Materials used, generated, stored, treated or
disposed of by Tenant at the Premises.
46.1.4 "Losses" shall mean all claims, liabilities, obligations,
losses (including, without limitation, diminution in the value of the
Premises, the Building, or the Property, damages for the loss or restriction
on use of rentable or usable space or of any amenity of the Premises, the
Building and/or the Property, damages arising from any adverse impact on
marketing of space), damages, penalties, fees, actions, judgments, lawsuits,
costs, expenses, disbursements, orders or decrees, including, without
limitation, reasonable attorneys' and consultants' fees and expenses.
46.1.5 "Release" means any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping into soil, surface waters, groundwaters, land, stream
sediments, surface or subsurface strata, ambient air and any environmental
medium comprising or proximate to and affecting the Premises, the Building or
the Property.
46.1.6 "Threat of Release" means a substantial likelihood of a
Release which requires action to prevent or mitigate damage to the soil,
surface waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air and any environmental medium comprising or proximate to
and affecting the Premises, the Building or the Property.
46.2 Tenant shall not generate, use, manufacture, recycle, handle,
store, place, transport, treat, discharge or dispose of any Hazardous
Materials at, on, in or near the Premises, the Building or the Property or
cause any of the foregoing to occur at, on, in, or near the Premises, the
Building or the Property, shall comply with all Environmental Laws in
connection with Tenant's use or occupancy of the Premises and the Building,
and promptly shall take all remedial action, at Tenant's sole cost and
expense, but with Landlord's prior approval, necessary or desirable to
remedy, clean-up and remove the presence of any Hazardous Materials resulting
from Tenant's violation of the prohibitions set forth in this sentence or
Tenant's failure to comply with Environmental Laws. Notwithstanding the
foregoing, Tenant shall not be deemed to be prohibited from using products
containing Hazardous Materials so long as such products are
commonly found in an office environment and are handled, stored, used and
disposed of in compliance with all Environmental Laws. In addition, Tenant
shall (i) obtain, maintain in full force and effect, and comply with, all
permits required under Environmental Laws; (ii) comply with all record
keeping and reporting requirements imposed by Environmental Laws concerning
the use, handling, treatment, storage, disposal or release of Hazardous
Materials on the Premises, the Building and the Property; (iii) report to
Landlord any release or discharge of Hazardous Materials within two (2)
business days of such discharge or release; (iv) provide to Landlord copies
of all written reports concerning such discharge of Hazardous Materials that
are required to be filed with governmental or quasi-governmental entities
under Environmental Laws; (vi) maintain and annually update a Hazardous
Materials Inventory with respect to Hazardous Materials used, generated,
treated, stored or disposed of at the Premises, the Building and the
Property; and (vii) make available to Landlord for inspection and copying, at
Landlord's expense, upon reasonable notice and at reasonable times, such
Hazardous Materials Inventory and any other reports, inventories or other
records required to be kept under Environmental Laws concerning the use,
generation, treatment, storage, disposal or release of Hazardous Materials.
46.3 Without limitation on any other indemnities by or obligations of
Tenant to Landlord under this Lease or otherwise, Tenant hereby covenants and
agrees to indemnify, defend and hold harmless Landlord from and against any
Losses incurred by Landlord as a result of Tenant's breach of any
representation, covenant or warranty hereof; or as a result of any claim,
demand, liability, obligation, right or cause of action, including, but not
limited to governmental action or other third party action (collectively,
"Claims"), that is asserted against Landlord, the Premises, the Building or
the Property as a result of or which arises directly or indirectly, in whole
or in part, out of the Release, Threat of Release, discharge, deposit,
presence, treatment, transport, handling or disposal of any Hazardous
Materials at, on, under, in, about, or from the Premises, the Building or the
Property attributable to or arising out of the operations or activities or
presence of Tenant or any assignee, sublessee, agent or representative of
Tenant at or about the Premises, the Building or the Property. This
indemnification of Landlord and its Mortgagee(s) by Tenant includes, without
limitation, reasonable costs incurred in connection with any investigation of
site conditions or any cleanup, remedial, removal, or restoration work
required by any federal, state or local governmental agency or political
subdivision because of Hazardous Material present in the soil or ground water
on or under the Building arising out of the operations or activities of
Tenant, or any assignee, sublessee, licensee, agent or representative of
Tenant at or about the Premises or the Building.
46.4 The indemnities, warranties and covenants contained in this
Article shall survive termination of this Lease.
47. Americans With Disabilities Act. Notwithstanding any other provisions
-------------------------------
contained in this Lease and with the purpose of superseding any such
provisions herein that might be construed to the contrary, it is the intent
of Landlord and Tenant that at all times while this Lease shall be in effect
that the following provisions shall be deemed their specific agreement as to
how the responsibility for compliance (and cost) with the Americans With
Disabilities Act and amendments to same ("ADA"), both as to the Premises and
the Property, shall be allocated between them, namely:
47.1 Landlord and Tenant agree to cooperate together in the initial
design, planning and preparation of specifications for construction of the
Premises so that same shall be in compliance with the ADA. Any costs
associated with assuring that the plans and specifications for the
construction of the Premises are in compliance with the ADA shall be borne by
the party whose responsibility it is hereunder to bear the cost of
preparation of the plans and specifications. Similarly those costs incurred
in the initial construction of the Premises so that same are built in
compliance with the ADA shall be included within Tenant's Improvements and
handled in the manner as provided for in other Sections of this Lease.
47.2 Subject to Section 47.4, modifications, alterations and/or other
changes required to and within the Common Areas which are not capital in
nature shall be the responsibility of Landlord to perform and the cost of
same shall be considered a part of the Building Expenses and treated as such.
47.3 Subject to Section 47.4, Modifications, alterations and/or other
changes required to and within the Common Areas which are capital in nature
shall be the responsibility of Landlord and at its cost and expense.
47.4 Modifications, alterations and/or other changes required to and
within the Common Areas, whether capital in nature or not, which are required
as a result of Tenant's specific use of the Premises, as compared to office
uses generally, shall be paid by Tenant within thirty (30) days after receipt
of an invoice from Landlord, together with reasonable supporting
documentation.
47.5 Modifications, alterations and/or other changes required to and
within the Premises (after the initial construction of same), whether capital
in nature or non-capital in nature, shall be the responsibility of Tenant and
at its cost and expense; unless the changes are structural in nature and
result from the original design of the Building, in which instance they shall
be the responsibility of Landlord and at its cost and expense.
Each party hereto shall indemnify and hold harmless the other party from
any and all liability, loss, cost or expense arising as a result of a party
not fulfilling its obligations as to compliance with the ADA as set forth in
this Section.
48. Several Liability. If Tenant shall be one or more individuals,
-----------------
corporations or other entities, whether or not operating as a partnership or
joint venture, then each such individual, corporation, entity, joint venturer
or partner shall be deemed to be both jointly and severally liable for the
payment of the entire rent and other payments specified herein.
49. Financial Statements. Tenant represents and warrants to Landlord that
--------------------
the financial statements heretofore delivered by Tenant to Landlord are true,
correct and complete in all material respects, have been prepared in
accordance with generally accepted accounting principles, and fairly
represent the financial condition of Tenant as of the date thereof, and that
no material change has thereafter occurred in the financial conditions
reflected therein. Within fifteen (15) days after request from Landlord,
Tenant agrees to deliver to Landlord such future financial statements and
other information as Landlord from time to time may reasonably request,
provided such financials are available.
50. Definition of "Day" and "Days". As used in the Lease, the terms "day"
------------------------------
and "days" shall refer to calendar days unless specified to the contrary;
provided, however, that if the deadline established for either party's
performance hereunder occurs on a Saturday, Sunday or banking holiday in the
State of Maryland, the date of performance shall be extended to the next
occurring business day.
51. Tenant's Right to Terminate. If Landlord fails to commence construction
---------------------------
of the Tenant Improvements described in Section 35 on or before April 15,
2004, then Tenant, upon fifteen (15) days prior written notice to Landlord,
may terminate this Lease, in which case, neither party shall have any further
obligations hereunder, provided however, that if Landlord commences
construction within the foregoing fifteen (15) day notice period, such
termination shall be void and this Lease shall continue in full force and
effect.
IN WITNESS WHEREOF, Landlord and Tenant have respectively affixed their
hands and seals to this Lease as of the day and year first above written.
WITNESS OR ATTEST: LANDLORD:
COPT CONCOURSE, LLC
/s/ Xxx Xxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------------------- By:-----------------------------(SEAL)
Xxxxx X. Xxxxxxx, Xx.
Executive Vice President
WITNESS OR ATTEST: TENANT:
DIALYSIS CORPORATION OF AMERICA
/s/ /s/ Xxxxxxx X. Xxxxxxx
---------------------------------- By:-----------------------------(SEAL)
Name: Xxxxxxx X. Xxxxxxx
Title: CEO and President
STATE OF MARYLAND, , TO WIT:
I HEREBY CERTIFY, that on this day of March, 2004, before me, the
undersigned Notary Public of the State, personally appeared XXXXX X. XXXXXXX,
XX., who acknowledged himself to be the Executive Vice President of COPT
CONCOURSE, LLC, a Maryland limited liability company, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the
within instrument, and acknowledged that he executed the same on behalf of
the corporation for the purposes therein contained as the duly authorized
Executive Vice President of the corporation by signing the name of the
corporation by himself as such Executive Vice President
WITNESS my hand and Notarial Seal.
/s/ Xxxxx Xxxxx
------------------------------
Notary Public
My Commission Expires:
STATE OF MARYLAND, COUNTY OF XXXX ARUNDEL, TO WIT:
I HEREBY CERTIFY, that on this day of March, 2004, before me, the
undersigned Notary Public of the State, personally appeared XXXXXXX X.
XXXXXXX, known to me (or satisfactorily proven) to be the person whose name
is subscribed to the within instrument, and acknowledged himself/herself to
be the CEO and President of DIALYSIS CORPORATION OF AMERICA, a Florida
corporation, and that he/she, as such CEO and President, being authorized so
to do, executed the foregoing instrument on behalf of the Corporation by
himself/herself as such CEO and President.
WITNESS my hand and Notarial Seal.
/s/ Xxxxxxxxx Xxxxxxx
------------------------------
Notary Public
My Commission Expires:
EXHIBIT "A"
to Agreement of Lease by and between
COPT CONCOURSE, LLC, Landlord
and DIALYSIS CORPORATION OF AMERICA, Tenant
FLOOR PLAN
[TO BE ATTACHED]
EXHIBIT "B"
to Agreement of Lease by and between
COPT CONCOURSE, LLC, Landlord
and DIALYSIS CORPORATION OF AMERICA, Tenant
RULES AND REGULATIONS
To the extent that any of the following Rules and Regulations, or any
Rules and Regulations subsequently enacted conflict with the provisions of
the Lease, the provisions of the Lease shall control.
1. Tenant shall not obstruct or permit its agents, clerks or servants
to obstruct, in any way, the sidewalks, entry passages, corridors, halls,
stairways or elevators of the Building, or use the same in any other way than
as a means of passage to and from the offices of Tenant; bring in, store,
test or use any materials in the Building which could cause a fire or an
explosion or produce any fumes or vapor; make or permit any improper noises
in the Building; smoke in the elevators, the Premises, the Building or the
Common Areas except in the exterior areas specifically designated by
Landlord; throw substances of any kind out of the windows or doors, or down
the passages of the Building, in the halls or passageways; sit on or place
anything upon the window xxxxx; or clean the windows.
2. Waterclosets and urinals shall not be used for any purpose other
than those for which they were constructed; and no sweepings, rubbish, ashes,
newspaper or any other substances of any kind shall be thrown into them.
Waste and excessive or unusual use of electricity or water is prohibited.
3. Tenant shall not (i) obstruct the windows, doors, partitions and
lights that reflect or admit light into the halls or other places in the
Building, or (ii) inscribe, paint, affix, or otherwise display signs,
advertisements or notices in, on, upon or behind any windows or on any door,
partition or other part of the interior or exterior of the Building without
the prior written consent of Landlord which shall not be unreasonably
withheld. If such consent be given by Landlord, any such sign,
advertisement, or notice shall be inscribed, painted or affixed by Landlord,
or a company approved by Landlord, but the cost of the same shall be charged
to and be paid by Tenant, and Tenant agrees to pay the same promptly, on
demand.
4. No contract of any kind with any supplier of towels, water, ice,
toilet articles, waxing, rug shampooing, venetian blind washing, furniture
polishing, lamp servicing, cleaning of electrical fixtures, removal of waste
paper, rubbish or garbage, or other like service shall be entered into by
Tenant, nor shall any vending machine of any kind be installed in the
Building, without the prior written consent of Landlord, which consent of
Landlord shall not be unreasonably withheld.
5. When electric wiring of any kind is introduced, it must be connected
as directed by Landlord, and no stringing or cutting of wires shall be
allowed, except with the prior written consent of Landlord which shall not be
unreasonably withheld, and shall be done only by contractors approved by
Landlord. The number and location of telephones, telegraph instruments,
electric appliances, call boxes, etc., shall be subject to Landlord's
approval. No tenants shall lay linoleum or other similar floor covering so
that the same shall be in direct contact with the floor of the Premises; and
if linoleum or other similar floor covering is desired to be used, an
interlining of builder's deadening felt shall be first affixed to the floor
by a paste or other material, the use of cement or other similar adhesive
material being expressly prohibited.
6. No additional lock or locks shall be placed by Tenant on any door in
the Building, without prior written consent of Landlord. Two keys will be
furnished Tenant by Landlord; two additional keys will be supplied to Tenant
by Landlord, upon request, without charge; any additional keys requested by
Tenant shall be paid for by Tenant. Tenant, its agents and employees, shall
not have any duplicate keys made and shall not change any locks. All keys to
doors and washrooms shall be returned to Landlord at the termination of the
tenancy, and in the event of any loss of any keys furnished, Tenant shall pay
Landlord the cost thereof.
B-1
7. Tenant shall not employ any person or persons other than Landlord's
janitors for the purpose of cleaning the Premises, without prior written
consent of Landlord which shall not be unreasonably withheld. Landlord shall
not be responsible to Tenant for any loss of property from the Premises
however occurring, or for any damage done to the effects of Tenant by such
janitors or any of its employees, or by any other person or any other cause.
8. No bicycles, vehicles or animals of any kind (other than animals to
assist the disabled) shall be brought into or kept in or about the Premises.
9. Tenant shall not conduct, or permit any other person to conduct, any
auction upon the Premises; manufacture or store goods, wares or merchandise
upon the Premises, without the prior written approval of Landlord, except the
storage of usual supplies and inventory to be used by Tenant in the conduct
of its business; permit the Premises to be used for gambling; make any
unusual noises in the Building; permit to be played any musical instrument in
the Premises; permit to be played any radio, television, recorded or wired
music in such a loud manner as to disturb or annoy other tenants; or permit
any unusual odors to be produced upon the Premises. Tenant shall not permit
any portion of the Premises to be used for the storage, manufacture, or sale
of intoxicating beverages, narcotics, tobacco in any form, or as a xxxxxx or
manicure shop.
10. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be
attached to or hung in, or used in connection with, any window or door of the
Premises, without the prior written consent of Landlord which consent shall
not be unreasonably withheld. Such curtains, blinds and shades must be of a
quality, type, design, and color, and attached in a manner reasonably
approved by Landlord.
11. Canvassing, soliciting and peddling in the Building are prohibited,
and Tenant shall cooperate to prevent the same.
12. There shall not be used in the Premises or in the Building, either
by Tenant or by others in the delivery or receipt of merchandise, any hand
trucks except those equipped with rubber tires and side guards, and no hand
trucks will be allowed in passenger elevators.
13. Tenant, before closing and leaving its Premises, shall ensure that
all entrance doors to same are locked.
14. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's opinion tends to impair the reputation of the Building or
its desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
15. Landlord hereby reserves to itself any and all rights not granted
to Tenant hereunder, including, but not limited to, the following rights
which are reserved to Landlord for its purposes in operating the Building:
(a) the exclusive right to the use of the name of the Building for
all purposes, except that Tenant may use the name as its business address and
for no other purpose;
(b) the right to change the name or address of the Building,
without incurring any liability to Tenant for so doing;
(c) the right to install and maintain a sign or signs on the
exterior of the Building;
(d) the exclusive right to use or dispose of the use of the roof
of the Building;
(e) the non-exclusive right to use the area above the ceiling of
the Premises for the purpose of installing and maintaining
telecommunications, water lines, utility lines, other conduit, sprinklers,
drainlines, ductwork and HVAC connections and any other equipment necessary
to provide services to any area in the Building;
B-2
(f) the right to limit the space on the directory of the Building
to be allotted to Tenant; and
(g) the right to grant to anyone the right to conduct any
particular business or undertaking in the Building.
16. As used herein the term "Premises" shall mean and refer to the
"Premises" as defined in Section 1 of the Lease.
17. Tenant shall not operate space heaters or other heating or
ventilating equipment without the express prior written consent of Landlord
in each instance first obtained. Tenant shall not install or operate any
electrical equipment, appliances or lighting fixtures in the Premises which
are not listed and labeled by Underwriter's Laboratories or other testing
organization acceptable to Landlord.
B-3
EXHIBIT "C"
to Agreement of Lease by and between
COPT CONCOURSE, LLC, Landlord
and DIALYSIS CORPORATION OF AMERICA, Tenant
SCHEDULE OF TENANT IMPROVEMENTS
DD-1 dated 1/29/04
[TO BE ATTACHED]
EXHIBIT "D"
to Agreement of Lease by and between
COPT CONCOURSE, LLC, Landlord
and DIALYSIS CORPORATION OF AMERICA, Tenant
FORM ESTOPPEL CERTIFICATE
TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY
c/o AEGON USA Realty Advisors, Inc.
Mortgage Loan Department
0000 Xxxxxxxx Xxxx X.X.
Xxxxx Xxxxxx, Xxxx 00000-0000
RE: Mortgage Loan to Corporate Office Properties, L.P. (the "Borrower")
secured by Xxxxxxx Xxxxxx XXXX, XX, 0000 Concourse and 0000 Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 (the "Real Property") owned by COPT Concourse,
LLC, a Maryland limited liability company (the "Landlord"), and
Assignment of Lease to Lender (as defined below) of a certain Lease to
DIALYSIS CORPORATION OF AMERICA (the "Tenant")
Dear Sir or Madam:
We are the tenant under the terms of a certain lease (together with any
amendments, options, extension and renewals listed below, the "Lease")
demising premises which comprise all or part of the Real Property. We
understand that one of your insurance company affiliates ("Lender") has acted
as the lender in connection with the funding of a commercial mortgage loan
(the "Loan"). An assignment of the Lease will be part of Lender's security
for the Loan.
Tenant certifies that:
(a) It occupies the premises demised by the Lease.
(b) The material business terms of the Lease are as follows:
Landlord: ----------------------------------------------------------
Lease Date: --------------------------------------------------------
Lease Commencement Date: -------------------------------------------
Subleases (if any): ------------------------------------------------
Amendments and Modifications (if any): -----------------------------
Current Monthly Base Rent: -----------------------------------------
Current Expense Reimbursement: -------------------------------------
Square Footage: ----------------------------------------------------
Expiration Date: ---------------------------------------------------
Renewals or Options (if any): --------------------------------------
Security or other Deposit: -----------------------------------------
Uncompleted Tenant Improvements (if any): --------------------------
Unpaid Tenant Allowances (if any): ---------------------------------
Other Financial Obligation of Landlord (if any): -------------------
(c) The Lease is Tenant's entire agreement with the Landlord.
(d) Tenant has accepted and currently occupies the leased premises, is
paying full rent under the Lease, and neither (i) presently asserts any
Landlord default, claim against Landlord, matured right of setoff, or right
to pay reduced rent nor (ii) knows of any fact which, with the giving of
notice or the passage of time, or both, could give rise to any such default,
claim or right.
(e) Tenant neither (i) presently asserts any matured right to terminate
or to cancel the Lease nor (ii) knows of any fact which, with the giving of
notice or the passage of time, or both, could give rise to any such right.
(f) Tenant does not presently intend to vacate its premises any time
prior to the Lease's expiration date and knows of no fact which could give
rise to any such intent.
(g) Tenant is not the debtor in any bankruptcy or state insolvency case
and is not the subject of any receivership, winding up, liquidation or
similar proceeding.
Very truly yours,
Tenant: DIALYSIS CORPORATION OF AMERICA
By: ---------------------------------
Name:
Title:
Date:
EXHIBIT "E"
to Agreement of Lease by and between
COPT CONCOURSE, LLC, Landlord
and DIALYSIS CORPORATION OF AMERICA, Tenant
FORM OF COMMENCEMENT DATE AGREEMENT
COMMENCEMENT DATE AGREEMENT
THIS COMMENCEMENT DATE AGREEMENT is made this day of March, 2004,
between COPT CONCOURSE, LLC ("Landlord") and DIALYSIS CORPORATION OF AMERICA
("Tenant").
Landlord and Tenant have entered into a certain Agreement of Lease (the
"Lease") dated March , 2004, demising certain space consisting of 4,591
rentable square feet in the in the building located at and having an address
of 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the "Building"). All of
the capitalized terms herein shall have the same respective definitions as
set forth in the Lease.
Pursuant to the provisions of Article 3 of the Lease, Landlord and
Tenant, intending to be legally bound hereby, acknowledge and agree that the
Commencement Date shall be the ________ day of ___________, 2004, and that
the term of the Lease shall end on the _____ day of __________, 20__, at
11:59 p.m., unless sooner terminated or extended, as provided in the Lease.
As supplemented hereby, the Lease shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Commencement Date Agreement on this _____ day of ________, 20__.
WITNESS OR ATTEST: LANDLORD:
COPT CONCOURSE, LLC
---------------------------------- By------------------------------(SEAL)
Xxxxx X. Xxxxxxx, Xx.
Executive Vice President
WITNESS OR ATTEST: TENANT:
DIALYSIS CORPORATION OF AMERICA
---------------------------------- By------------------------------(SEAL)
Name:
Title:
