SHERWOOD BRANDS INC.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 0000
OFFICE BUILDING LEASE
XXXXXXX X. XXXXX MANAGEMENT, INC.
0000 Xxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx
TABLE OF CONTENTS
SPECIFIC AND GENERAL PROVISIONS
PAGE
1. SPECIFIC PROVISIONS ................................................ 1
2. RENT ............................................................... 4
2.1 Base Annual Rent ............................................. 4
2.2 Additional Rent .............................................. 4
(a) Real Estate Taxes ...................................... 4
(b) Operating Expenses ..................................... 4
(c) CPI .................................................... 4
(d) Changes in Landlord's Fiscal Year ...................... 4
2.3 Additional Rent Estimates and Adjustments .................... 4
2.4 Rent Adjustment Limit ........................................ 5
2.5 Survival of Rent Obligation .................................. 5
2.6 Pro Rata Share ............................................... 5
2.7 Prorated Rent ................................................ 5
2.8 Application of Rent .......................................... 5
2.9 Late Payment Fee ............................................. 5
2.10 Other Tenant Costs and Expenses .............................. 5
3. CONSTRUCTION OF PREMISES AND OCCUPANCY ............................. 5
3.1 Tenant Plans, Construction and Rent Liability .............. 5
3.2 Possession ................................................... 6
3.3 Occupancy Permits ............................................ 6
4. SUBLETTING AND ASSIGNMENT .......................................... 6
4.1 Consent ...................................................... 6
4.2 Recapture of Premises ........................................ 6
4.3 Excess Rent .................................................. 6
4.4 Tenant Liability ............................................. 6
5. SERVICES AND UTILITIES ............................................. 6
5.1 Building Standard Services and Utilities ..................... 6
5.2 Overtime Services ............................................ 7
5.3 Excessive Electrical Usage ................................... 7
5.4 Excessive Heat Generation .................................... 7
5.5 Security ..................................................... 7
6. USE AND UPKEEP OF PREMISES ......................................... 7
6.1 Use .......................................................... 7
6.2 Illegal and Prohibited Uses .................................. 7
6.3 Insurance Rating ............................................. 7
6.4 Alterations .................................................. 7
6.5 Maintenance by Landlord ...................................... 8
6.6 Signs and Advertising ........................................ 8
6.7 Excessive Floor Load ......................................... 8
6.8 Moving and Deliveries ........................................ 8
6.9 Rules and Regulations ........................................ 9
6.10 Tenant Maintenance and Condition of Premises Upon Surrender .. 9
6.11 Tenant Equipment ............................................. 9
7. ACCESS ............................................................. 9
7.1 Landlord's Access ............................................ 9
7.2 Restricted Access ............................................ 9
8. LIABILITY .......................................................... 9
8.1 Personal Property ............................................ 9
8.2 Criminal Acts of Third Parties ............................... 9
8.3 Public Liability ............................................. 9
8.4 Tenant Insurance ............................................. 10
9. DAMAGE ............................................................. 10
9.1 Damages Caused By Tenant ..................................... 10
9.2 Fire or Casualty Damage ...................................... 10
9.3 Untenantability .............................................. 10
i
TABLE OF CONTENTS
(Continued)
10. CONDEMNATION ....................................................... 10
10.1 Landlord Right to Award ...................................... 10
10.2 Tenant Right to File Claim ................................... 11
11. BANKRUPTCY ......................................................... 11
11.1 Events of Bankruptcy ......................................... 11
11.2 Landlord's Remedies .......................................... 11
(a) Termination of Lease ................................... 11
(b) Suit for Possession .................................... 11
(c) Non-Exclusive Remedies ................................. 11
(d) Assumption or Assignment by Trustee .................... 11
(e) Adequate Assurance of Future Performance ............... 11
(f) Failure to Provide Adequate Assurance .................. 11
12. DEFAULTS AND REMEDIES .............................................. 12
12.1 Default ...................................................... 12
12.2 Remedies ..................................................... 12
12.3 Landlord's Right to Relet .................................... 12
12.4 Recovery of Damages .......................................... 12
12.5 Waiver ....................................................... 12
12.6 Anticipatory Repudiation ..................................... 12
12.7 Tenant Abandonment of Premises ............................... 12
13. SUBORDINATION ...................................................... 13
13.1 Subordination ................................................ 13
13.2 Estoppel Certificates ........................................ 13
13.3 Attornment ................................................... 13
14. TENANT HOLDOVER .................................................... 13
14.1 With Landlord Consent ........................................ 13
14.2 Without Landlord Consent ..................................... 13
15. SECURITY DEPOSIT ................................................... 14
16. QUIET ENJOYMENT .................................................... 14
17. SUCCESSORS ......................................................... 14
18. WAIVER OF JURY TRIAL ............................................... 14
19. LIMITATION OF LIABILITY ............................................ 14
20. PRONOUNS AND DEFINITIONS ........................................... 14
21. NOTICES ............................................................ 14
21.1 Addresses for Notices ........................................ 14
21.2 Effective Date of Notice ..................................... 14
22. EXHIBITS; SPECIAL PROVISIONS ....................................... 14
22.1 Incorporation in Lease ........................................ 14
22.2 Conflicts ..................................................... 14
23. CAPTIONS ........................................................... 15
24. ENTIRE AGREEMENT; MODIFICATION ..................................... 15
25. SEVERABILITY ....................................................... 15
ii
This Lease, made this 14th day of October, 1988 between BUILDING NO. 7
ASSOCIATES, a Maryland limited partnership, (hereinafter referred to as
"Landlord"), and SHERWOOD BRANDS INC., a North Carolina corporation,
(hereinafter referred to as "Tenant").
Landlord, for and in consideration of the covenants and agreements set
forth hereinafter, leases to Tenant, and Tenant leases from Landlord, the
premises described, for the use set forth and for the term and at the rent
reserved herein.
1. SPECIFIC PROVISIONS
1.1 Demised Premises
(a) Space Description: Suite 1080.
(b) Floor Area: Approximately 2,831 square feet (Washington Board of
Realtors Standard Floor Area Measure in effect at the time of
execution of this Lease) as shown on Exhibit "A".
(c) Building: 0000 XXXXXXXXX XXXXXXXXX
(d) Address: 0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
1.2 Term of Lease: Five (5) years, commencing on December 1, 1988, and
expiring on November 30, 1993, both dates inclusive.
1.3 Base annual rent: THIRTY-SIX THOUSAND THREE HUNDRED and NO/100
($36,300), payable in equal monthly installments of THREE THOUSAND
TWENTY-FIVE and NO/100 Dollars ($3,025.00), hereinafter referred to as
"base monthly rent" for the period commencing December 1, 1988 and
ending November 30, 1990.
THIRTY-NINE THOUSAND SIX HUNDRED and NO/l00 Dollars ($39,600.00),
payable in equal monthly installments of THREE THOUSAND THREE HUNDRED
and NO/l00 Dollars ($3,300.00), hereinafter referred to as "base
monthly rent" for the period commencing December 1, 1990 and ending
November 30, 1991.
FORTY-TWO THOUSAND NINE HUNDRED and NO/l00 Dollars ($42,900.00),
payable in equal monthly installments of THREE THOUSAND FIVE HUNDRED
SEVENTY-FIVE and NO/l00 Dollars ($3,575.00), hereinafter referred to
as "base monthly rent" for the period commencing December 1, 1991 and
ending November 30, 1992.
FORTY-SIX THOUSAND SEVEN HUNDRED ELEVEN and 56/100 Dollars
($46,711.56), payable in equal monthly installments of THREE THOUSAND
EIGHT HUNDRED NINETY-TWO and 63/100 Dollars ($3,892.63), hereinafter
referred to as "base monthly rent" for the period commencing December
1, 1992 and ending November 30, 1993.
1.4 Base Year: "Base Year" shall mean fiscal year of Landlord ending
December 31, 1989.
1
1.5 Additional Rent: Payable in equal monthly installments, commencing on
December 1, 1989, consisting of each of the following:
(a) Tenant's pro rata share equal to One and Eleven Hundredths Percent
(1.11%) of any increase in Real Estate Taxes over the Base Year Real
Estate Taxes for the period commencing December 1, 1989 and ending
November 30, 1990; and
Xxxxxx's pro rata share equal to One and Twenty-One Hundredths
Percent (1.21%) of any increase in Real Estate Taxes over the Base
Year Real Estate Taxes for the period commencing December 1, 1990 and
ending November 30, 1991; and
Xxxxxx's pro rata share equal to One and Thirty-One Hundredths
Percent (1.31%) of any increase in Real Estate Taxes over the Base
Year Real Estate Taxes for the period commencing December 1, 1991 and
ending November 30, 1992; and
Tenant's pro rata share equal to One and Forty-Two Hundredths Percent
(1.42%) of any increase in Real Estate Taxes over the Base Year Real
Estate Taxes for the period commencing December 1, 1992 and ending
November 30, 1993; and
(b) Tenant's pro rata share equal to One and Eleven Hundredths Percent
(1.11%) of any increase in Operating Expenses over the Base Year
Operating Expenses for the period commencing December 1, 1989 and
ending November 30, 1990; and
Xxxxxx's pro rata share equal to One and Twenty-Two Hundredths
Percent (1.22%) of any increase in Operating Expenses over the Base
Year Operating Expenses for the period commencing December 1, 1990 and
ending November 30, 1991; and
Xxxxxx's pro rata share equal to One and Thirty-Two Hundredths
Percent (1.32%) of any increase in Operating Expenses over the Base
Year Operating Expenses for the period commencing December 1, 1991 and
ending November 30, 1992; and
Tenant's pro rata share equal to One and Forty-Three Hundredths
Percent (1.43%) of any increase in Operating Expenses over the Base
Year Operating Expenses for the period commencing December 1, 1992 and
ending November 30, 1993; and
(c) A percentage of Base Annual Rent equal to Thirty Percent (30%) of
the percentage increase in the CPI over the CPI for "the base period"
in the year 1989.
2
1.6 Security Deposit: THREE THOUSAND TWENTY-FIVE and NO/l00 Dollars
($3,025.00).
1.7 (a) Date Tenant approved Preliminary Plans to be furnished: October
4, 1988.
(b) Working days to prepare Working Drawings and cost estimate: Ten
(10).
(c) Working days to substantially complete construction of demised
premises: Twenty-Five (25).
1.8 Standard Building Operating Days and Hours:
8:00 A.M. to 6:00 P.M. Monday - Friday
8:00 A.M. to 1:00 P.M. Saturday
1.9 Use of Premises:
General office use in keeping with the quality and nature of this
first class office building.
1.10 (a) Address for Notices to Tenant:
Sherwood Brands Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
(b) Address for Notices to Landlord:
Building No. 7 Associates
c/o Xxxxxxx X. Xxxxx Management, Inc.
0000 Xxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
1.11 Special Provisions:
LIMIT ON ADDITIONAL RENT (See Section 26)
WAIVER OF RENT (See Section 27)
LANDLORD IMPROVEMENTS (See Section 28)
PARKING (See Section 29)
LATE FEE (See Section 30)
OCCUPANCY PERMITS (See Section 31)
SUBLETTING (See Section 32)
BUILDING SERVICES (See Section 33)
RULES AND REGULATIONS (See Section 34)
LANDLORD'S ACCESS (See Section 35)
DAMAGE TO THE DEMISED PREMISES (See Section 36)
LANDLORD'S INSURANCE (See Section 37)
CONDEMNATION (See Section 38)
BANKRUPTCY (See Section 39)
DEFAULT (See Section 40)
NON-DISTURBANCE (See Section 41)
ESTOPPEL CERTIFICATES (See Section 42)
TENANT'S HOLDOVER (See Section 43)
JURY TRIAL (See Section 44)
EXECUTION OF DOCUMENT (See Section 45)
ADDITIONAL RENT (See Section 46)
ALTERATIONS (See Section 47)
SIGNAGE (See Section 48)
MOVING AND DELIVERIES (See Section 49)
LANDLORD'S NEGLIGENCE (See Section 50)
MUTUAL WAIVER OF SUBROGATION (See Section 51)
TENANT'S INSURANCE (See Section 52)
BANKRUPTCY (See Section 53)
ANTICIPATORY REPUDIATION (See Section 54)
ATTORNMENT (See Section 55)
SECURITY DEPOSIT (See Section 56)
TEMPORARY SPACE (See Section 57)
CONSENTS AND APPROVALS (See Section 58)
3
1.12 Exhibits to Lease:
Exhibit "A" - Plan
Exhibit "B" - Not Applicable
Exhibit "C" - Building Rules and Regulations
Exhibit "D" - Janitorial Specifications
IN WITNESS WHEREOF, Xxxxxxxx has caused this Lease, comprised of Specific
Provisions, General Provisions, Special Provisions and Exhibits to be signed and
sealed by one or more of its General Partners, Trustees, or Agents, and Tenant
has caused this Lease, as described above, to be signed in its corporate name by
its duly authorized officer and its corporate seal to be hereto affixed and duly
attested by its Secretary.
WITNESS: LANDLORD: BUILDING NO. 7 ASSOCIATES
[ILLEGIBLE] BY [ILLEGIBLE] (SEAL)
---------------------------------- -------------------------------
General Partner
BY (SEAL)
---------------------------------- -------------------------------
WITNESS: TENANT: SHERWOOD BRANDS INC.
CORPORATE
SEAL [ILLEGIBLE] BY [ILLEGIBLE] (SEAL)
---------------------------------- -------------------------------
Vice President - Finance
BY (SEAL)
---------------------------------- -------------------------------
BY (SEAL)
---------------------------------- -------------------------------
3(a)
GENERAL PROVISIONS
2. RENT
2.1 Base Annual Rent. Tenant shall pay the first monthly installment of
Base Annual Rent upon execution of this Lease. Tenant shall pay the remaining
monthly installments of Base Annual Rent specified in section 1.3 in advance
without deduction or demand, on the first day of each and every calendar month
throughout the entire term of the Lease, as specified in section 1.2, to and at
the office of Landlord's Agent, Xxxxxxx X. Xxxxx Management, Inc., 0000
Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, or to such other person or
at such other place as Landlord may hereafter designate in writing.
2.2 Additional Rent. For purposes of computing additional rent hereunder,
the Base Year as used in this Section 2 is stipulated in section 1.4. If dollar
amounts for Base Year real estate taxes and operating expenses are stipulated
under section 1.4, such dollar amounts shall be used in calculating additional
rent for the purposes of this Lease and shall prevail regardless of actual
historical dollar amounts for the Base Year. Commencing on the date specified in
section 1.5, and continuing throughout the term of this Lease, Tenant shall pay
to Landlord as additional rent each of the following:
(a) Real Estate Taxes. Tenant's pro rata share, as indicated in
section 1.5(a), of any increase in real estate taxes during each fiscal
year of Landlord over the Base Year real estate taxes. The term "real
estate taxes" shall mean all taxes, general and special, levied or assessed
on the land and the building improvements of which the demised premises is
a part, and on any land and/or improvements now or hereafter owned by
Landlord that provide the building on the demised premises with parking or
other services.
(b) Operating Expenses. Tenant's pro rata share, as indicated in
section 1.5(b), of any increase in operating expenses during each fiscal
year of Landlord over the Base Year operating expenses.
(i) The term "operating expenses" shall mean any and all expenses
incurred by Landlord in connection with the servicing, operation,
maintenance and repair of the building and related interior and
exterior appurtenances of which the demised premises is a part, and
the cost of any services incurred in order to achieve a reduction of
or to minimize the increase in operating expenses, including without
limitation, management fees, capital expenditures for equipment or
systems installed to reduce or minimize increases in operating
expenses and capital expenditures required by any governmental
ordinance, or depreciation or amortization based on the useful life
expectancy of such equipment or systems or expenditures, the cost of
contesting the validity or amount of real estate taxes, and periodic
increases in ground rent payments under any ground lease existing at
the execution of this Lease. Certain of these expenses may be
apportioned among two or more buildings in the same complex or
locality owned by Landlord and/or managed by Landlord's Agent.
(ii) Operating expenses shall not include any of the following,
except to the extent that such costs and expenses are included in
operating expenses as described in subsection 2.2(b)(i) above: capital
expenditures and depreciation of the building; painting or decorating
of Tenant space; interest and amortization of mortgages; ground rent;
compensation paid to officers or executives of Landlord; taxes as
measured by the net income of Landlord from the operation of the
building; increases in real estate taxes; and brokerage commissions.
(c) CPI. A percentage of the Base Annual Rent equal to the percent
stipulated in section 1.5(c) of the percentage increase in the Index now
known as "United States Bureau of Labor Statistics, Consumer Price Index
for Urban Wage Earners and Clerical Workers," all items for Washington,
D.C. SMSA (C.P.I.W.)(1967=100)(hereinafter referred to as the "Index"),
between the last published Index for each calendar year and the Index
published for the same period in the year stipulated in section 1.5(c)
(hereinafter "base period"). If such Index shall be discontinued or revised
without substitution of a comparable successor Index, the parties shall
attempt to agree upon a substitute formula. If the parties are unable to
agree upon a substitute formula, then the matter shall be determined by
arbitration in accordance with the rules of the American Arbitration
Association then prevailing. Any substitute formula determined by
arbitration shall include all of the same items included in the Index
effective at the execution of this Lease and shall be so designed as to
achieve a result as close as possible to the result that would have been
achieved if the discontinued Index were available. Costs of any such
arbitration shall be shared equally by Xxxxxx and Landlord.
(d) Landlord shall have the right to change its fiscal year from time
to time. If Landlord changes its fiscal year during the term of this Lease,
thereby creating a fiscal year with fewer than twelve (12) months
(hereinafter "short year"), the real estate taxes and operating expenses
for the short year shall be determined on an annualized basis by taking the
monthly average of the actual real estate taxes and operating expenses,
respectively, and multiplying each by twelve. The amounts determined by
this method shall be used in determining the increases described in
subsections 2.2(a) and (b) for the "short year".
2.3 Additional Rent Estimates and Adjustments.
(a) In order to provide for current monthly payments of additional rent,
Landlord shall submit to Tenant prior to January 1st of each year a statement of
Xxxxxxxx's estimate of the amount of the increases described in section 2.2
above together with the amount of Tenant's additional rent which is estimated to
result from such increases. Commencing on the date stipulated in section 1.5,
and continuing throughout the remaining term of this Lease, Tenant shall pay
each month one-twelfth (1/12th) of Tenant's pro rata share of Landlord's
estimate of the increase in each year for (i) real estate taxes and (ii)
operating expenses, over such items for the Base Year. In addition, Tenant shall
pay each month one-twelfth (1/12th) of Landlord's estimate of the annual rent
increase due to the percentage increase in the Consumer Price Index over the
Base Period.
(b) If payment of additional rent begins on a date other than January 1st
under this Lease, in order to provide for current payments of additional rent
through December 31st of that partial calendar year, Landlord shall submit to
Tenant a statement of Landlord's estimate of Xxxxxx's additional rent for that
partial year, stated in monthly increments, resulting from the increases
described in section 2.2 above. Tenant shall make these payments of estimated
additional rent together with its installments of base monthly rent.
(c) After the end of each calendar year, Landlord will as soon as
practicable submit to Tenant a statement of the actual increases incurred in
real estate taxes and operating expenses for the fiscal year ended during such
calendar year over such costs for the Base Year and the actual increase
attributable to the increase in the Consumer Price Index over the Base Period.
Such statement shall also indicate the amount of Tenant's excess payment or
underpayment based on Landlord's estimate. If additional rent paid by Tenant
during the preceding calendar year shall be in excess of, or less than, the
4
aggregate of its share of the actual increase incurred by Landlord for real
estate taxes and operating expenses, and the actual increase attributable to the
increase in the Consumer Price Index, Landlord and Tenant agree to make the
appropriate adjustment following the submission of Xxxxxxxx's statement. Tenant
shall either pay any additional rent due with the installment of rent due for
the month following submission of Landlord's statement, or pay any additional
rent due within thirty (30) days if the Lease term has expired or is otherwise
terminated. Tenant shall deduct its excess payment, if any, from the installment
of rent for such month, or following the final year of the Lease term, Tenant
shall be reimbursed for any excess payments made.
(d) Within ten (10) days after receipt of Landlord's statement showing
actual figures for the year, Xxxxxx shall have the right to request copies of
real estate bills and an unaudited statement of "operating expenses of the
building" prepared by Xxxxxxxx's certified public accountant, which shall be
supplied to Tenant within a reasonable time after Xxxxxx's written request.
Unless Tenant asserts specific error(s) within thirty (30) days after Landlord
has complied with Xxxxxx's request, Tenant shall have no right to contest the
statement of actual figures for the year submitted by Landlord. No such request
shall extend the time for payments as set forth in this section 2.3 above. If
Tenant has given proper notice, and if it shall be determined that there is an
error in Landlord's statement, Tenant shall be entitled to a credit for any
overpayment, which shall be applied to the next installment of rent or refunded
to a Tenant who has vacated the premises, or Tenant shall be billed for any
underpayment and shall remit any amount owing to Landlord within ten (10) days
of receipt of such statement.
(e) In the event Tenant questions the validity of the statement of
operating expenses submitted by Landlord, Tenant shall have the right to examine
or have its accountant examine at the office of Landlord's accountant the books
and records from which such statement has been prepared. No such examination
shall extend the time for payments due in accordance with this section 2.3,
however. Tenant shall pay upon demand a reasonable sum to reimburse Landlord for
the costs of services of Landlord's accountant in cooperating and assisting in
the examination. If any error amounting to more than five (5) percent in the
operating expenses statement is found, Landlord shall bear its accountant's
costs as aforesaid.
2.4 Rent Adjustment Limit. Notwithstanding any adjustments to rent as
provided for above, in no event shall the total rent to be paid by tenant in any
month during the term of this Lease or any extension thereof be less than the
base monthly rent stipulated in section 1.3.
2.5 Survival of Rent Obligation. The obligation of Tenant with respect to
the payment of rent, or additional rent as defined in sections 2.2 and 2.10,
accrued and unpaid during the term of the Lease, shall survive the expiration or
earlier termination of the Lease.
2.6 Pro Rata Share. Tenant's "pro rata share" stipulated in section 1.5(a)
and (b) represents the ratio that the area of the demised premises bears to the
total rentable area of office space contained in the building.
2.7 Prorated Rent. Any rent or additional rent payable for one or more full
calendar months in a partial calendar year at the beginning or end of the Lease
term shall be prorated based upon the number of months. Any rent or additional
rent payable for a portion of a month shall be prorated based upon the number of
days in the applicable calendar month.
2.8 Application of Rent. No payment by Tenant or receipt by Landlord of
lesser amounts of rent or additional rent than those herein stipulated shall be
deemed to be other than on account of the earliest unpaid stipulated rent. No
endorsement or statement on any check or any letter accompanying any check or
payment as rent shall be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such rent or pursue any other remedy provided in this Lease. Any
credit due to Tenant hereunder by reason of overpayment of additional rent shall
first be applied to any damages or rent owed to Landlord by Tenant if Tenant
shall be in default when said credit shall be owed.
2.9 Late Payment Fee. In the event any installment of rent or additional
rent due hereunder is not paid within ten (10) calendar days after it is due,
then Tenant shall also pay to Landlord as additional rent a late payment fee
equal to five percent (5%) of such delinquent rent for each and every month or
part thereof that such rent remains unpaid.
2.10 Other Tenant Costs & Expenses. All costs and expenses which Xxxxxx
assumes or agrees to pay to Landlord pursuant to this Lease, including without
limitation costs of construction and alterations, shall be deemed additional
rent and, in the event of nonpayment thereof, Landlord shall have all the rights
and remedies herein provided for in case of nonpayment of rent, including
assessment of late payment fees.
3. CONSTRUCTION OF PREMISES AND OCCUPANCY
3.1. Tenant Plans, Construction and Rent Liability. Tenant shall use its
best efforts to deliver to Landlord for its approval, by the date specified in
section 1.7(a), preliminary plans approved in writing by Tenant showing its
partition, electrical, telephone and all other requirements set forth in Tenant
Plans Guidelines (which shall have been provided by Landlord to Tenant). Tenant
preliminary plans shall permit the preparation of working drawings and cost
estimate, and shall be certified by Tenant's architects or engineers to be in
compliance with applicable building and fire codes. Xxxxxxxx's approval of
Tenant plans or work does not constitute certification by Landlord that said
plans or work meet the applicable requirements of any building codes, laws, or
regulations, nor shall it impose any liability whatsoever upon Landlord. If
Tenant's plans are not in compliance with applicable building and fire codes,
they shall not be deemed acceptable to Landlord. If Xxxxxx's plans are
acceptable to Landlord, Landlord shall have working drawings prepared. Nothing
contained in this section 3.1, nor any delay in completing the demised premises,
shall in any manner affect the commencement date of this Lease set forth in
section 1.2 or Tenant's liability for the payment of rent from such commencement
date, except as follows. If Landlord requires longer than the number of working
days stipulated in section 1.7(b) to prepare working drawings and prepare the
cost estimate following receipt of Tenant's approved preliminary drawings, or if
Landlord requires longer than the number of working days stipulated in section
1.7(c) to substantially complete construction improvements in the demised
premises, then the date for payment of rent covenanted and reserved to be paid
herein shall be put off by one day for each extra day Landlord requires for the
foregoing preparation of working drawings and cost estimate and/or substantial
5
completion of construction improvements. For purposes of this section 3.1,
substantial completion of construction improvements shall mean when all work to
be performed by Landlord pursuant to the approved working drawings has been
completed, except for minor items of work and minor adjustments of equipment and
fixtures that can be completed after occupancy of the demised premises without
causing undue interference with Xxxxxx's reasonsable use of the demised premises
(i.e., so-called "punch-list" items). In the event Tenant's plans specify any
improvements that are not building standard, however, the delivery and
installation of which precludes Landlord from completing the demised premises
for Tenant's occupancy by the commencement date hereof, or in the event any work
to be performed by Tenant or Tenant's contractors delays Tenant's occupancy by
the commencement date hereof, Tenant shall nevertheless remain liable for the
payment of rent from such commencement date.
3.2 Possession. If Landlord shall be unable to tender possession of the
demised premises on the date of the commencement of the term hereof, set forth
in section 1.2, by reason of: (a) the fact that the premises are located in a
building being constructed and which has not been sufficiently completed to make
the premises ready for occupancy; (b) the holding over or retention of
possession of any tenant or occupant; or (c) for any other reason beyond the
control of Landlord, Landlord shall not be subject to any liability for the
failure to tender possession on said date. In the case of holding over, provided
Landlord shall promptly institute suit for recovery of the premises and
diligently pursue the same, Landlord shall have no responsibility for any delay
in tendering possession of the demised premises. Under such circumstances the
rent reserved and convenanted to be paid herein shall not commence until
possession of the demised premises is tendered to Tenant. No such failure to
give possession on the date of commencement of the term shall in any other
respect affect the validity of this Lease or the obligations of Tenant
hereunder, nor shall same be construed to extend the termination date of this
Lease set forth in section 1.2. If permission is given to Tenant to enter into
possession of the demised premises prior to the date specified as the
commencement of the term of this Lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this Lease, except that Tenant shall be responsible for payment of
rent, in advance, at the rate of 1/30th of the base monthly rent set forth in
section 1.3 for each day of such occupancy prior to the date for the
commencement of the term of this Lease.
3.3 Occupancy Permits. Tenant shall be responsible for obtaining occupancy
permits and any other permits or licenses necessary for its lawful occupancy of
the demised premises.
4. SUBLETTING AND ASSIGNMENT
4.1 Consent. Tenant will not sublet the demised premises or any part
thereof or transfer possession or occupancy thereof to any person, firm or
corporation, or transfer or assign this Lease, without the prior written consent
of Landlord, which consent shall be in Landlord's sole discretion to give or
withhold. No subletting or assignment hereof shall be effected by operation of
law or in any other manner unless with prior written consent of Landlord. Tenant
further agrees that any permitted subletting of the demised premises shall be
subject to the provisions of section 4.3. No assignment shall be made except for
the entire premises demised by this Lease. Xxxxxx further agrees that any
permitted assignment of the Lease may be conditioned upon payment of
consideration to be agreed upon by Landlord and Xxxxxx. Any subletting or
assignment consented to by Landlord shall be evidenced in writing in a form
acceptable to Landlord. Consent by Landlord to any assignment or subletting by
Tenant shall not operate as a waiver of the necessity for obtaining Landlord's
consent in writing to any subsequent assignment or subletting; nor shall the
collection or acceptance of rent from any such assignee, subtenant or occupant
constitute a waiver or release of Tenant of any covenant or obligation contained
in this Lease. In the event that Tenant defaults under this Lease in the payment
of rent or additional rent, Tenant hereby assigns to Landlord the rent due from
any subtenant of Tenant and hereby authorizes each such subtenant to pay said
rent directly to Landlord.
4.2 Recapture of Premises. In the event Tenant desires to sublet the
demised premises or assign the Lease, Tenant shall give to Landlord written
notice of Xxxxxx's intended subtenant or assignee in order to secure Xxxxxxxx's
written consent in accordance with section 4.1. Within ninety (90) days of
receipt of said notice, Landlord shall have the right: (i) to terminate this
Lease by giving Tenant not less than thirty (30) days' notice in the case of an
assignment of the entire Lease or a subletting of more than fifty percent (50%)
of the demised premises; or (ii) to terminate this Lease and simultaneously to
enter into a new lease with Tenant for that portion of the demised premises
Tenant may desire to retain upon the same terms, covenants and conditions of the
existing lease as applicable to the space retained. If Landlord exercises its
right to terminate this Lease, Xxxxxx agrees that Landlord shall have access to
all or a portion of the demised premises sixty (60) days prior to the effective
termination date for remodeling or redecorating purposes.
4.3 Excess Rent. In the event Landlord does not exercise its right to
terminate this Lease, and Landlord has granted its written consent, Tenant may
sublet all or a portion of the demised premises. Any rent accruing to Tenant as
the result of such sublease, which is in excess of the pro rata share of rent
then being paid by Tenant for the portion of the demised premises being sublet,
shall be paid by Tenant to Landlord monthly as additional rent.
4.4 Tenant Liability. In the event of any subletting of the demised
premises or assignment of this Lease by Xxxxxx, with or without Xxxxxxxx's
consent, Tenant shall remain liable to Landlord for payment of the rent
stipulated herein and all other covenants and conditions contained herein.
5. SERVICES AND UTILITIES
5.1 Building Standard Services and Utilities. Landlord shall furnish
sufficient electric current for lighting and office equipment, such as
typewriters, calculators, small copiers and similar items, subject to the
limitations of section 5.3, water for lavatory and drinking purposes, lavatory
supplies, fluorescent tube replacements, automatically operated elevator service
and nightly cleaning service in accordance with Landlord's prevailing practices,
as they may be established from time to time, except that Landlord shall not be
responsible for cleaning Tenant kitchens or private bathrooms, Tenant rugs,
carpeting and drapes. Landlord further agrees to furnish heating and cooling
during the appropriate seasons of the year, between the hours and on the days
set forth in section 1.8 (exclusive of legal public holidays as defined in
section 6 103(a) and
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(c) of Title 5 of the United States Code, as it may hereafter be amended, with
holidays falling on Saturday observed on the preceding Friday and holidays
falling on Sunday observed on the following Monday). All of the aforesaid
services shall be provided without cost to Tenant except as such expenses may be
included in calculating the additional rent pursuant to the provisions of
sections 2.2 and 2.3. Landlord shall not be liable for failure to furnish, or
for suspension or delays in furnishing, any of such services caused by
breakdown, maintenance or repair work, strike, riot, civil commotion,
governmental regulations or any other cause or reason whatever beyond the
control of Landlord. Suspension or interruption of services shall not result in
any abatement of rent, be deemed an eviction or relieve Tenant of performance of
Tenant's obligations under this Lease.
5.2 Overtime Services. Should Tenant require heating and cooling services
beyond the hours and/or days stipulated in section 1.8, upon receipt of at least
72 hours prior written notice from Tenant, Landlord will furnish such additional
service at the then prevailing hourly rates, as established by Landlord from
time to time; provided, further, that there will be a minimum charge of four (4)
hours each time overtime services are required.
5.3 Excessive Electrical Usage.
(a) Tenant will not install or operate in the demised premises any heavy
duty electrical equipment or machinery without first obtaining prior written
consent of Landlord. Landlord may, among other conditions, require as a
condition to its consent for the installation of such equipment or machinery,
payment by Tenant as additional rent for excess consumption of electricity that
may be occasioned by the operation of said equipment or machinery. Landlord may
make periodic inspections of the demised premises at reasonable times to
determine that Xxxxxx's electrically operated equipment and machinery complies
with the provisions of this section and section 5.4.
(b) The total average consumption of electricity, including lighting, in
excess of five (5) xxxxx per square foot for the demised premises shall be
deemed excessive. Additionally, any individual piece of electrically operated
machinery or equipment having a name plate rating in excess of two (2) kilowatts
shall also be deemed as requiring excess electric current.
(c) Landlord may require that one or more separate meters be installed to
record the consumption or use of electricity, or shall have the right to cause a
reputable independent electrical engineer to survey and determine the quantity
of electricity consumed by such excessive use. The cost of any such survey or
meters and of installation, maintenance and repair thereof shall be paid for by
Tenant. Tenant agrees to pay Landlord (or the utility company, if direct service
is provided by the utility company), promptly upon demand therefor, for all such
electric consumption and demand as shown by said meters, or a flat monthly
charge determined by the survey, as applicable, at the rates charged for such
service by the local public utility company. If Xxxxxx's cost of electricity
based on meter readings is to be paid to Landlord, Tenant shall pay a service
charge related thereto.
5.4 Excessive Heat Generation. Landlord shall not be liable for its failure
to maintain comfortable atmospheric conditions in all or any portion of the
demised premises due to heat generated by any equipment, machinery or additional
lighting installed by Tenant (with or without Landlord's consent) that exceeds
design capabilities for the building of which the demised premises are a part.
If Tenant desires additional cooling to offset excessive heat generated by such
equipment or machinery, Tenant shall pay for auxiliary cooling equipment, and
its operating costs including without limitation electricity, gas, oil and
water, or for excess electrical consumption by the existing cooling system, as
appropriate.
5.5 Security. Any security measures that Landlord may undertake are for
protection of the building only and shall not be relied upon by Tenant to
protect Tenant, Tenant's property, or employees, or their property.
6. USE AND UPKEEP OF PREMISES
6.1 Use. Tenant shall use and occupy the demised premises for the purposes
specified in section 1.9 and only in accordance with applicable zoning and other
municipal regulations and for no other purpose whatsoever.
6.2 Illegal and Prohibited Uses. Tenant will not use or permit the demised
premises or any part thereof to be used for any disorderly, unlawful or extra
hazardous purpose and will not manufacture any commodity therein. Tenant will
not use or permit the demised premises to be used for any purposes that
interfere with the use and enjoyment by other tenants of the building nor which,
in Landlord's opinion, impair the reputation or character of the building of
which the demised premises form a part. Tenant shall refrain from and
discontinue such use upon receipt of written notice from Landlord or no later
than three (3) days after mailing thereof.
6.3 Insurance Rating. Tenant will not do or permit anything to be done in
the demised premises or the building of which they form a part or bring or keep
anything therein which shall in any way increase the rate of fire or other
insurance in said building, or on the property kept therein, or obstruct, or
interfere with the rights of other tenants, or in any way injure or annoy them,
or those having business with them, or conflict with them, or conflict with the
fire laws or regulations, or with any insurance policy upon said building or any
part thereof, or with any statutes, rules or regulations enacted or established
by the appropriate governmental authority.
6.4 Alterations.
(a) Tenant will not make any alterations, installations, changes,
replacements, repairs, additions or improvements (structural or otherwise) in or
to the demised premises or any part thereof, without the prior written consent
of Landlord. All Tenant plans and specifications shall be submitted to Landlord
for prior approval. Landlord may, among other things, condition its consent upon
Tenant's agreement that any construction up-gradings required by any
governmental authority as a result of Xxxxxx's work, either in the demised
premises or in any other part of the building, will be paid for by Xxxxxx.
Tenant shall not install any equipment of any kind or nature whatsoever which
will or may necessitate any changes, replacements or additions to the water
system, plumbing system, heating system, air-conditioning system or the
electrical system of the demised premises without the prior written consent of
the Landlord. Tenant shall not install or use in the building any air
conditioning unit, engine, boiler, generator, machinery, heating unit, stove,
water cooler, ventilator, radiator or any other similar apparatus without the
prior written consent of Landlord, and then only as Landlord may direct. Tenant
shall not
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modify or interfere with the heating, ventilating and air-conditioning supply,
return or control systems without the prior written consent of Landlord, and
then only as Landlord may direct. Landlord may condition its consent upon
Tenant's payment of all costs to make such changes, replacements or
modifications. Landlord's consent to any work by Tenant or approval of Tenant
plans or specifications shall not be deemed a certification that such work
complies with applicable building codes, laws or regulations, nor shall it
impose any liability whatsoever upon Landlord.
(b) All of Tenant's approved work shall be done in accordance with
Landlord's Supplemental Rules and Regulations for Contractors and shall be done
by duly licensed contractors in accordance with all applicable laws, codes,
ordinances, rules and regulations, and Tenant shall obtain at its cost any
required permits, licenses or inspections for performance of its work. Tenant
must obtain an executed waiver of lien from each contractor or vendor that will
perform or furnish to Tenant work, labor, services or materials for any
alterations, installations, replacements, additions or improvements in or to the
demised premises, prior to the commencement of such work. Notwithstanding the
aforesaid, if any mechanic's lien shall at any time, whether before, during or
after the Lease term, be filed against any part of the building by reason of
work, labor, services or materials performed for or furnished to Tenant, Tenant
shall forthwith cause the lien to be discharged of record or bonded off to the
satisfaction of Landlord. If Tenant shall fail to cause such lien to be
discharged or bonded off within five (5) days after being notified of the filing
thereof, then, in addition to any other right or remedy of Landlord, Landlord
may discharge the lien by paying the amount claimed to be due. The amount paid
by Xxxxxxxx, and all costs and expenses, including reasonable attorney's fees
incurred by Landlord in procuring the discharge of the lien, shall be due and
payable by Tenant to Landlord as additional rent on the first day of the next
following month, or if the Lease term has expired, upon demand.
(c) All alterations, installations, including without limitation wall to
wall carpet and drapery and drapery accessories, changes, replacements, repairs,
additions, or improvements to or within the demised premises (whether with or
without Landlord's consent), shall at the election of Landlord remain upon the
demised premises and be surrendered with the demised premises at the expiration
of this Lease without disturbance, molestation or injury. Should Landlord elect
that alterations, installations, changes, replacements, repairs, additions to or
improvements made by or for Tenant upon the demised premises be removed upon
termination of this Lease or upon termination of any renewal period hereof,
Tenant hereby agrees that Landlord shall have the right to cause same to be
removed at Xxxxxx's sole cost and expense. Tenant hereby agrees to reimburse
Landlord for the cost of such removal together with the cost of repairing any
damage resulting therefrom, and the cost of restoring the premises to its
condition at the commencement of the term of this Lease as initially improved by
Landlord. Approximately sixty (60) days prior to Xxxxxx's scheduled vacation of
the demised premises, Landlord and Tenant shall meet to decide what items shall
be removed and what items shall remain. At such time Tenant shall deposit with
Landlord an amount equal to the estimated costs of removal and/or restoration of
the demised premises, which work shall be performed by or for Landlord at
Tenant's expense.
(d) In the event that either Landlord or Tenant, during the term hereby
demised, shall be required by the order or decree of any court, or any other
governmental authority, or by law, code or ordinance, to repair, alter, remove,
reconstruct, or improve any part of the demised premises or of the building of
which said premises are a part, then Tenant shall make or Tenant shall be
required to permit Landlord to perform such repairs, alterations, removals,
reconstructions, or improvements without effect whatsoever to the obligations or
covenants of Tenant herein contained, and Tenant hereby waives all claims for
damages or abatement of rent because of such repairing, alteration, removal,
reconstruction, or improvement.
6.5 Maintenance By Landlord. Landlord shall maintain all public or common
areas located in the building, including external and structural parts of the
building that do not comprise a part of the demised premises and are not leased
to others. Such maintenance shall be provided without cost to Tenant except as
such expenses may be included in calculating the additional rent pursuant to the
provisions of sections 2.2 and 2.3.
6.6 Signs & Advertising. No sign, advertisement or notice shall be
inscribed, painted or affixed on any part of the outside of the building, or
inside of the demised premises where it may be visible from the public areas of
the building, except on the directories and doors of offices, and then only in
such size, color and style as Landlord shall approve. Landlord shall have the
right to prohibit any advertisement or publication of Tenant on or off-premises
which in Xxxxxxxx's opinion tends to impair the reputation or character of the
building, Landlord or its agent. Tenant shall refrain from and discontinue such
advertisement or publication upon receipt of written notice from Landlord or no
later than three (3) days after mailing thereof.
6.7 Excessive Floor Load. Landlord shall have the right to prescribe the
weight and method of installation and position of safes, computer equipment, or
other heavy fixtures or equipment. Tenant will not install in the demised
premises any fixtures, equipment or machinery that will place a load upon the
floor exceeding the designed floor load capacity of the building. Landlord may
prescribe the placement and positioning of all such objects within the building,
and such objects shall be placed upon platforms, plates or footings of such size
as Landlord shall prescribe if necessary. All damage done to the building by
installing or removing a safe or any other article of Xxxxxx's office equipment,
or due to its being in the demised premises, shall be repaired at the expense of
Tenant.
6.8 Moving & Deliveries.
(a) Moving in or out of the building is prohibited on days and hours
specified in section 1.8. Tenant shall provide Landlord with forty-eight (48)
hours advance written notice of any move and obtain Xxxxxxxx's approval therefor
in order to facilitate scheduling use of freight elevators and loading area.
(b) No freight, furniture or other bulky matter of any description shall be
received into the building or carried in the elevators, except as authorized by
Landlord. All moving of furniture, material and equipment shall be under the
direct control and supervision of Landlord, who shall, however, not be
responsible for any damage to or charges for moving same. Tenant shall promptly
remove from the public area adjacent to said building any of Tenant's property
delivered or deposited there.
(c) Any and all damage or injury to the demised premises or the building
caused by moving the property of Tenant into or out of the demised premises
shall be repaired at the sole cost of Tenant. Deliveries from lobby and freight
areas requiring use of hand carts shall be restricted to freight elevators. All
hand carts used in delivery, receipt or movement of freight, supplies,
furniture, or fixtures shall be equipped with rubber tires and side guards.
Tenant shall cooperate in identifying delivery contractors and movers causing
damage to the building.
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6.9 Rules and Regulations. Tenant shall, and shall insure that Tenant's
agents, employees, invitees and guests, faithfully keep, observe and perform the
Building Rules and Regulations set forth in Exhibit C, attached hereto and made
a part hereof, and such other reasonable rules and regulations as Landlord may
make, which shall not substantially interfere with the intended use of the
demised premises, which in Landlord's judgment are needful for the general well
being, operation and maintenance of the demised premises and the building of
which they are a part, together with their appurtenances, unless waived in
writing by Landlord. In addition to any other remedy provided for herein,
Landlord shall have the right to impose a fine of $200 per incident for
violations of Building Rules and Regulations. Nothing contained in this Lease
shall be construed to impose upon Landlord any duty or obligation to enforce
such rules and regulations, or the terms, conditions or covenants contained in
any other lease, as against any other tenant, and Landlord shall not be liable
to Tenant for violation of the same by any other tenant, its employees, agents,
business invitees, licensees, customers, clients, family members or guests.
Further, it shall be in Landlord's reasonable judgment to determine whether
Tenant is in compliance with the Rules and Regulations.
6.10 Tenant Maintenance & Condition of Premises Upon Surrender. Tenant will
keep the demised premises and the fixtures and equipment therein in good order
and condition, will suffer no waste or injury thereto, and will, at the
expiration or other termination of the term hereof, surrender and deliver up the
same in like good order and condition as the premises shall be at the
commencement of the term of this Lease, subject to the provisions of section
6.4(c), ordinary wear and tear excepted.
6.11 Tenant Equipment. Maintenance and repair of equipment such as special
light fixture, kitchen fixtures, auxiliary heating, ventilation, or
air-conditioning equipment, private bathroom fixtures and any other type of
special equipment together with related plumbing or electrical services, or
Tenant rugs, carpeting and drapes within the demised premises, whether installed
by Tenant or by Landlord on behalf of Tenant, shall be the sole responsibility
of Tenant, and Landlord shall have no obligation in connection therewith.
Notwithstanding the provisions hereof, in the event that repairs required to be
made by Tenant become immediately necessary to avoid possible injury or damage
to persons or property, Landlord may, but shall not be obligated to, make
repairs to Tenant equipment at Tenant's expense. Within ten (10) days after
Landlord renders a bill for the cost of said repairs, Xxxxxx shall reimburse
Landlord.
7. ACCESS
7.1 Landlord's Access. Landlord, its agent or employees, shall have the
right to enter the demised premises at all reasonable times (a) to make
inspections or to make such repairs and maintenance to the demised premises or
repairs and maintenance to other premises as Landlord may deem necessary; (b) to
exhibit the premises to prospective tenants during the last six (6) months of
the term of this Lease; and (c) for any purpose whatsoever relating to the
safety, protection or preservation of the building of which the demised premises
form a part.
7.2 Restricted Access. No additional locks, other devices or systems which
would restrict access to the demised premises shall be placed upon any doors
without the prior consent of Landlord. Xxxxxxxx's consent to installation of
anti-crime warning devices or security systems shall not be unreasonably
withheld; provided Landlord shall not be required to give such consent unless
Tenant provides Landlord with a means of access to the demised premises for
emergency and routine maintenance purposes. Unless access to the demised
premises is provided during the hours when cleaning service is normally
rendered, Landlord shall not be responsible for providing such service to the
demised premises or to those portions thereof which are inaccessible. Such
inability by Landlord to provide cleaning services to inaccessible areas shall
not entitle Tenant to any adjustment in rent.
8. LIABILITY
8.1 Personal Property. All personal property of Tenant in the demised
premises or in the building of which the demised premises is a part shall be at
the sole risk of Tenant. Landlord shall not be liable for any damage thereto or
for the theft or misappropriation thereof, unless such damage, theft or
misappropriation is directly attributable to the negligence of Landlord, its
agents or employees. Landlord shall not be liable for any accident to or damage
to property of Tenant resulting from the use or operation of elevators or of the
heating, cooling, electrical or plumbing apparatus, unless caused by and due to
the negligence of Landlord, its agents or employees. Landlord shall not, in any
event, be liable for damages to property resulting from water, steam or other
causes. Tenant hereby expressly releases Landlord from any liability incurred or
claimed by reason of damage to Xxxxxx's property, unless said damages are proved
to be the direct result of negligence of Landlord, its agents or employees.
Landlord shall not be liable in damages, nor shall this Lease be affected, for
conditions arising or resulting, and which affect the building of which the
demised premises is a part, due to construction on contiguous premises.
8.2 Criminal Acts of Third Parties. Landlord shall not be liable in any
manner to Tenant, its agents, employees, invitees or visitors for any injury or
damage to Tenant, Tenant's agents, employees, invitees or visitors, or their
property, caused by the criminal or intentional misconduct of third parties or
of Tenant, Tenant's employees, agents, invitees or visitors. All claims against
Landlord for any such damage or injury are hereby expressly waived by Xxxxxx,
and Xxxxxx hereby agrees to hold harmless and indemnify Landlord from all such
damages and the expense of defending all claims made by Tenant's employees,
agents, invitees, or visitors arising out of such acts.
8.3 Public Liability. Landlord assumes no liability or responsibility
whatsoever with respect to the conduct and operation of the business to be
conducted upon the demised premises. Landlord shall not be liable for any
accident to or injury to any person or persons or property in or about the
demised premises which are caused by the conduct and operation of said business
or by virtue of equipment or property of Tenant in said premises. Xxxxxx agrees
to hold Landlord harmless against all such claims, and indemnify Landlord from
all damages and the expense of defending all such claims.
9
8.4 Tenant Insurance.
(a) Tenant at its cost shall maintain as named insured, during the term of
this Lease, public liability and property damage insurance with at least a
single combined liability and property damage limit of $1,000,000.00, insuring
against all liability of Tenant and its authorized representatives arising out
of and in connection with Xxxxxx's use or occupancy of the premises. All public
liability insurance and property damage insurance shall insure performance by
Tenant of the indemnity provisions of sections 8.1, 8.2 and 8.3. Landlord and
Landlord's Agent shall be named as additional insureds. The policy shall contain
cross-liability endorsements, and an assumed contractual liability endorsement
that refers expressly to this Lease.
(b) Tenant at its cost shall maintain as named insured, during the term of
this Lease, fire and extended coverage insurance on the demised premises and its
contents, including any leasehold improvements made by Tenant, in an amount
sufficient so that no co-insurance will be payable in case of loss.
(c) Tenant shall increase its insurance coverage as required not more
frequently than each three (3) years, if in the opinion of the mortgagee of the
building or Landlord's insurance agent the amount of public liability and
property damage insurance coverage at that time is not adequate.
(d) All insurance required under this Lease shall be issued by insurance
companies authorized to do business in the jurisdiction where the building of
which the demised premises is a part is located. Such companies shall have a
policyholder rating of at least "A" and be assigned a financial size category of
at least "Class XIV" as rated in the most recent edition of "Best's Key Rating
Guide" for insurance companies. Each policy shall contain an endorsement
requiring 30 days' written notice from the insurance company to Landlord before
cancellation or any change in the coverage, scope or amount of any policy. Each
policy, or a certificate showing it is in effect, together with evidence of
payment of premiums, shall be deposited with Landlord at the commencement of the
term, and renewal certificates or copies of renewal policies shall be delivered
to Landlord at least thirty (30) days prior to the expiration date of any
policy.
(e) Notwithstanding the fact that any liability of Tenant to Landlord may
be covered by Tenant's insurance, Tenant's liability shall in no way be limited
by the amount of its insurance recovery.
9. DAMAGE
9.1 Damages Caused By Tenant. Subject to the provisions of section 9.2, all
injury to the demised premises and other portions of the building of which it is
a part, caused by Tenant, its agents, employees, invitees and visitors, will be
repaired by Landlord at the expense of Tenant, except as otherwise provided in
section 6.11, or repaired by Tenant with Landlord's approval in accordance with
Section 6. Tenant shall reimbuse Landlord for such repairs within ten (10) days
of receipt of invoice from Landlord of the costs. At its election, Landlord may
regard the same as additional rent, in which event the cost shall become
additional rent payable with the installment of rent next becoming due after
notice is received by Tenant from Landlord. This provision shall be construed as
an additional remedy granted to Landlord and not in limitation of any other
rights and remedies which Landlord has or may have in said circumstances.
9.2 Fire or Casualty Damage. In the event of damage or destruction of the
demised premises by fire or any other casualty without the fault or neglect of
Tenant, its agents, employees, invitees or visitors, this Lease shall not be
terminated, but structural damage to the premises including demising partitions
and doors shall be promptly and fully repaired and restored as the case may be
by Landlord at its own cost and expense. Due allowance, however, shall be given
for reasonable time required for adjustment and settlement of insurance claims,
and for such other delays as may result from government restrictions, and
controls on construction, if any, and for strikes, national emergencies and
other conditions beyond the control of Landlord. Restoration by Landlord shall
not include replacement of furniture, equipment or other items that do not
become part of the building or any improvements to the demised premises in
excess of those provided for as building standard items as of the commencement
date of this Lease. Tenant shall be responsible for the repair and restoration
of the demised premises and Tenant's property beyond Landlord's obligation at no
cost to Landlord, in accordance with the provisions of Section 6, for which it
shall maintain adequate insurance pursuant to section 8.4 herein. In the event
of fire or casualty damage to the demised premises caused by the fault or
neglect of Tenant, its agents, employees, invitees or visitors, Landlord shall
restore structural damages as described herein at Tenant's cost and expense. It
is agreed that in any of the aforesaid events, this Lease shall continue in full
force and effect.
9.3 Untenantability. If the condition referred to in section 9.2 is such so
as to make the entire premises untenantable, then the rental which Tenant is
obligated to pay hereunder shall xxxxx as of the date of the occurrence until
the premises have been fully and completely restored by Landlord. Any unpaid or
prepaid rent for the month in which said condition occurs shall be prorated. If
the premises are partially damaged or destroyed, then during the period that
Tenant is deprived of the use of the damaged portion of said premises, Tenant
shall be required to pay rental covering only that part of the premises that it
is able to occupy, based on that portion of the total rent which the amount of
square foot area remaining that can be occupied bears to the total square foot
area of all the premises covered by this Lease. In the event the premises are
substantially or totally destroyed by fire or other casualty so as to be
entirely untenantable, and it shall require more than ninety (90) days from the
date of said fire or other casualty for Landlord to complete restoration of
same, then Landlord, upon written notice to Tenant, may terminate this Lease, in
which case the rent shall be apportioned and paid to the date of said fire or
other casualty. Due allowance, however, shall be given for reasonable time
required for adjustment and settlement of insurance claims, and for such other
delays as may result from government restrictions, and controls on construction,
if any, and for strikes, national emergencies and other conditions beyond the
control of Landlord. No compensation, or claim, or diminution of rent will be
allowed or paid by Landlord, by reason of inconvenience, annoyance, or injury to
business, arising from the necessity of repairing the demised premises or any
portion of the building of which they are a part.
10. CONDEMNATION
10.1 Landlord Right to Award. Tenant agrees that if the whole or a
substantial part of the demised premises shall be taken or condemned for public
or quasi-public use or purpose by any competent authority, Tenant shall have no
claim against Landlord and shall not have any claim or right to any portion of
the amount that may be awarded as damages or paid as a result of any such
condemnation. All rights of Tenant to damages therefor, if any, are hereby
assigned by Tenant to
10
Landlord. Upon such condemnation or taking, the term of this Lease shall cease
and terminate from the date of such governmental taking or condemnation. If a
portion of the building or the demised premises is taken or condemned, and the
remainder in Landlord's opinion is not economically usable, Landlord shall
notify Tenant of the termination of this Lease effective as of the date of such
governmental taking or condemnation. Tenant shall have no claim against Landlord
for the value of any unexpired term of this Lease. If less than a substantial
part of the demised premises is taken or condemned by any governmental authority
for public or quasi-public use or purpose and the remainder is usable by Tenant,
the rent shall be equitably adjusted on the date when title vests in such
governmental authority and the Lease shall otherwise continue in full force and
effect. For the purposes of this Section 10, a substantial part of the demised
premises shall be considered to have been taken if more than fifty percent (50%)
of the demised premises are unusable by Tenant.
10.2 Tenant Right to File Claim. Nothing in section 10.1 shall preclude
Tenant from filing a separate claim against the condemning authority for the
undepreciated value of its leasehold improvements and relocation expenses,
provided that any award to Tenant will not result in a diminution of any award
to Landlord.
11. BANKRUPTCY
11.1 Events of Bankruptcy. The following shall be Events of Bankruptcy
under this Lease:
(a) Xxxxxx's becoming insolvent, as that term is defined in Title 11
of the United States Code, entitled Bankruptcy, 11 U.S.C. Sec. 101 et seq.
(the "Bankruptcy Code"), or under the insolvency laws of any State,
District, Commonwealth or Territory of the United States ("Insolvency
Laws");
(b) The appointment of a receiver or custodian for any or all of
Tenant's property or assets, or the institution of a foreclosure action
upon any of Tenant's real or personal property;
(c) The filing of a voluntary petition under the provisions of the
Bankruptcy Code or Insolvency Laws;
(d) The filing of an involuntary petition against Tenant as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which is
either not dismissed within thirty (30) days of filing, or results in the
issuance of an order for relief against the debtor, whichever is later; or
(e) Xxxxxx's making or consenting to an assignment for the benefit of
creditors or a common law composition of creditors.
11.2 Landlord's Remedies.
(a) Termination of Lease. Upon occurrence of an Event of Bankuptcy,
Landlord shall have the right to terminate this Lease by giving written notice
to Tenant; provided, however, that this section 11.2(a) shall have no effect
while a case in which Tenant is the subject debtor under the Bankruptcy Code is
pending, unless Tenant or its Trustee is unable to comply with the provisions of
section 11.2(d) and (e) below. At all other times this Lease shall automatically
cease and terminate, and Tenant shall be immediately obligated to quit the
premises upon the giving of notice pursuant to this section 11.2(a). Any other
notice to quit, or notice of Xxxxxxxx's intention to re-enter is hereby
expressly waived. If Landlord elects to terminate this Lease, everything
contained in this Lease on the part of Landlord to be done and performed shall
cease without prejudice, subject, however, to the rights of Landlord to recover
from Tenant all rent and any other sums accrued up to the time of termination or
recovery of possession by Landlord, whichever is later, and any other monetary
damages or loss of reserved rent sustained by Landlord.
(b) Suit for Possession. Upon termination of this Lease pursuant to section
11.2(a), Landlord may proceed to recover possession under and by virtue of the
provisions of the laws of any applicable jurisdiction, or by such other
proceedings, including reentry and possession, as may be applicable.
(c) Non-Exclusive Remedies. Without regard to any action by Xxxxxxxx as
authorized by section 11.2(a) and (b) above, Landlord may at its discretion
exercise all the additional provisions set forth below in Section 12.
(d) Assumption or Assignment by Trustee. In the event Tenant becomes the
subject debtor in a case pending under the Bankruptcy Code, Xxxxxxxx's right to
terminate this Lease pursuant to section 11.2(a) shall be subject to the rights
of the Trustee in Bankruptcy to assume or assign this Lease. The Trustee shall
not have the right to assume or assign this Lease unless the Trustee (i)
promptly cures all defaults under this Lease, (ii) promptly compensates Landlord
for monetary damages, incurred as a result of such default, and (iii) provides
adequate assurance of future performance on the part of Tenant as debtor in
possession or on the part of the assignee Tenant.
(e) Adequate Assurance of Future Performance. Landlord and Tenant hereby
agree in advance that adequate assurance of future performance, as used in
section 11.2(d) above, shall mean that all of the following minimum criteria
must be met: (i) Tenant's gross receipts in the ordinary course of business
during the thirty-day period immediately preceding the initiation of the case
under the Bankruptcy Code must be at least two times greater than the next
payment of rent due under this Lease; (ii) Both the average and median of
Tenant's gross receipts in the ordinary course of business during the six-month
period immediately preceding the initiation of the case under the Bankruptcy
Code must be at least two times greater than the next payment of rent due under
this Lease; (iii) Tenant must pay its estimated pro rata share of the cost of
all services provided by Landlord (whether directly or through agents or
contractors and whether or not previously included as part of the base rent), in
advance of the performance or provision of such services; (iv) The Trustee must
agree that Xxxxxx's business shall be conducted in a first class manner, and
that no liquidating sales, auctions, or other non-first class business
operations shall be conducted on the premises; (v) The Trustee must agree that
the use of the premises as stated in this Lease will remain unchanged and that
no prohibited use shall be permitted; and (vi) The Trustee must agree that the
assumption or assignment of this Lease will not violate or affect the rights of
other tenants in the building.
(f) Failure to Provide Adequate Assurance. In the event Tenant is unable to
(i) cure its defaults, (ii) reimburse the Landlord for its monetary damages,
(iii) pay the rent due under this Lease, and all other payments required of
Tenant under this Lease on time (or within five (5) days), or (iv) meet the
criteria and obligations imposed by section 11.2(e) above, Xxxxxx agrees, in
advance that it has not met its burden to provide adequate assurance of future
performance, and this Lease may be terminated by Landlord in accordance with
section 11.2(a) above.
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12. DEFAULTS & REMEDIES
12.1 Default. It is agreed that Tenant shall be in default if: Tenant shall
fail to pay the rent, or any installments thereof as aforesaid, at the time the
same shall become due and payable and/or any additional rent as herein provided
although no demand shall have been made for the same; or Tenant shall violate or
fail or neglect to keep and perform any of the convenants, conditions and
agreements, or rules and regulations herein contained on the part of Tenant to
be kept and performed.
12.2 Remedies. In each and every such event set forth in section 12.1
above, from thenceforth and at all times thereafter, at the option of Landlord,
Xxxxxx's right of possession shall thereupon cease and terminate, and Landlord
shall be entitled to the possession of the demised premises and to re-enter the
same without demand of rent or demand of possession of said premises and may
forthwith proceed to recover possession of the demised premises by process of
law, any notice to quit being hereby expressly waived by Tenant. In the event of
such re-entry by process of law or otherwise, Xxxxxx nevertheless agrees to
remain answerable for any and all damage, deficiency or loss of rent which
Landlord may sustain by such re-entry, including reasonable attorney's fees and
court costs. If, under the provisions hereof, seven (7) days summons or other
applicable summary process shall be served, and a compromise or settlement
therefor shall be made, such action shall not be constituted as a waiver of any
breach of any covenant, condition or agreement herein contained. No waiver of
any breach of any covenant, condition or agreement, herein contained, on one or
more occasions shall operate as a waiver of the covenant, condition or agreement
itself, or of any subsequent breach thereof. No provision of this Lease shall be
deemed to have been waived by Landlord unless such waiver shall be in writing
signed by Landlord.
12.3 Landlord's Right to Relet. Should this Lease be terminated before the
expiration of the term of this Lease by reason of Tenant's default as provided
in Sections 11 or 12, or if Tenant shall abandon or vacate the premises before
the expiration or termination of the term of this Lease, the demised premises
may be relet by Landlord for such rent and upon such terms as are reasonable
under the circumstances. If the full rent reserved under this Lease (and any of
the costs, expenses or damages indicated below) shall not be realized by
Landlord, Tenant shall be liable for all damages sustained by Landlord,
including, without limitation, deficiency in rent, reasonable attorneys' fees,
other collection costs, brokerage fees, and expenses of placing the premises in
first-class rentable condition. Landlord, in putting the premises in good order
or preparing the same for rerental may, at Landlord's option, make such
alterations, repairs, or replacements in the premises as Landlord, in Xxxxxxxx's
sole judgment, considers advisable and necessary for the purpose of reletting
the premises, and the making of such alterations, repairs, or replacements shall
not operate or be construed to release Tenant from liability hereunder as
aforesaid. Landlord shall in no event be liable in any way whatsoever for
failure to relet the premises, or in the event that the premises are relet, for
failure to collect the rent thereof under such reletting. In no event shall
Tenant be entitled to receive any excess, if any, of such net rent collected
over the sums payable by Xxxxxx to Landlord hereunder.
12.4 Recovery of Damages. Any damage or loss of rent sustained by Landlord
may be recovered by Landlord, at Landlord's option, at the time of the
reletting, or in separate actions, from time to time, as said damage shall have
been ascertained by successive relettings, or, at Landlord's option, may be
deferred until the expiration of the term of this Lease (in which event Tenant
hereby agrees that the cause of action shall not be deemed to have accrued until
the date of expiration of said term). The provisions contained in this paragraph
shall be in addition to and shall not prevent the enforcement of any claim
Landlord may have against Tenant for anticipatory breach of the unexpired term
of this Lease. All rights and remedies of Landlord under this Lease shall be
cumulative and shall not be exclusive of any other rights and remedies provided
to Landlord under applicable law. In the event Tenant becomes the subject debtor
in a case under the Bankruptcy Code, the provisions of this section 12.4 may be
limited by the limitations of damage provisions of the Bankuptcy Code.
12.5 Waiver. If under the provisions hereof Landlord shall institute
proceedings and a compromise or settlement thereof shall be made, the same shall
not constitute a waiver of any covenant, rule or regulation herein contained nor
of any of Landlord's rights hereunder. No waiver by Landlord of any breach of
any covenant, condition, agreement, rule or regulation herein contained shall
operate as a waiver of such covenant, condition, agreement, rule or regulation
itself, or of any subsequent breach thereof.
12.6 Anticipatory Repudiation. If, prior to the commencement of the term of
this Lease, Tenant notifies Landlord of or otherwise unequivocally demonstrates
an intention to repudiate this Lease, Landlord may, at its option, consider such
anticipatory repudiation a breach of this Lease. In addition to any other
remedies available to it hereunder or at law or in equity, Landlord may retain
all rent paid upon execution of the Lease and the security deposit, if any, to
be applied to damages of Landlord incurred as a result of such repudiation,
including without limitation attorneys' fees, brokerage fees, costs of
reletting, loss of rent, etc. It is agreed between the parties that for the
purpose of calculating Landlord's damages, in a building which has other
available space at the time of Tenant's breach, the premises covered by this
Lease shall be deemed the last space rented, even though the premises may be
rerented prior to such other vacant space. Tenant shall pay in full for all
tenant improvements constructed or installed within the demised premises to the
date of the breach, and for materials ordered at its request for the demised
premises.
12.7 Tenant Abandonment of Premises.
(a) Abandonment. If the demised premises shall be deserted or vacated by
Tenant for thirty (30) consecutive days or more without notice to Landlord, and
Tenant shall have failed to make the current rental payment, the premises may be
deemed abandoned. Landlord may consider Tenant in default under this Lease and
may pursue all remedies available to it under this Lease or at law.
(b) Landlord Right to Enter and to Relet. If Tenant vacates or abandons the
premises as defined above, Landlord may, at its option, enter into the premises
without being liable for any prosecution therefor or for damages by reason
thereof. In addition to any other remedy, Landlord, as agent of Tenant, may
relet the whole or any part of the premises for the whole or any part of the
then unexpired lease term. For the purposes of such reletting, Landlord may make
any alterations or modifications of the premises considered desirable in its
sole judgment.
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(c) Rights to Dispose of Tenant Property. If Tenant vacates or abandons the
premises as defined above, any property that Tenant leaves on the premises shall
be deemed to have been abandoned and may either be retained by Landlord as the
property of Landlord or may be disposed of at public or private sale in
accordance with applicable law as Landlord sees fit. The proceeds of any public
or private sale of Tenant's property, or the then current fair market value of
any property retained by Landlord, shall be applied by Landlord against (i) the
expenses of Landlord for removal, storage or sale of the property; (ii) the
arrears of rent or future rent payable under this Lease; and (iii) any other
damages to which Landlord may be entitled hereunder.
(d) Transfer of Tenant Property to Creditors. If Tenant vacates or abandons
the premises, as defined above, Landlord may, upon presentation of evidence of a
claim valid upon its face of ownership or of a security interest in any of
Tenant's property abandoned in the premises, turn over such property to the
claimant with no liability to Tenant.
13. SUBORDINATION
13.1 Subordination. This Lease is subject and subordinate to the lien of
all ground or underlying leases and to all mortgages and/or deeds of trust which
may now or hereafter affect such leases or the real property of which the
demised premises form a part, and to all renewals, modifications,
consolidations, replacements and extensions thereof. This clause shall be
self-operative and no further instrument of subordination shall be required by
any mortgagee or trustee. Notwithstanding the foregoing, in confirmation of such
subordination, Tenant shall at Landlord's request promptly execute any requisite
or appropriate certificate, subordination agreement or other document.
13.2 Estoppel Certificates. Tenant shall execute and return within ten (10)
working days any certificate that Landlord may request from time to time,
stating that this Lease is unmodified and in full force and effect, or in full
force and effect as modified, and stating the modification. The certificate also
shall state the amount of base monthly rent and the dates to which the rent has
been paid in advance, and the amount of any security deposit or prepaid rent;
that there is no present default on the part of Landlord, or attach a memorandum
stating any such instance of default; that Tenant has no right to setoff and no
defense or counterclaim against enforcement of its obligations under the Lease;
and that Tenant has no other notice of any sale, transfer or assignment of this
Lease or of the rentals. Failure to deliver the certificate within the ten (10)
working days shall be conclusive upon Tenant for the benefit of Landlord and any
successor to Landlord that this Lease is in full force and effect and has not
been modified except as may be represented by the party requesting the
certificate. If Xxxxxx fails to deliver the certificate within the ten (10)
working days, Tenant by such failure irrevocably constitutes and appoints
Landlord as its special attorney-in-fact to execute and deliver the certificate
to any third party. Notwithstanding the foregoing, the party secured by any
mortgage or deed of trust shall have the right to recognize this Lease and, in
the event of any foreclosure sale under such mortgage or deed of trust, this
Lease shall continue in full force and effect at the option of the party secured
by such mortgage or deed of trust or the purchaser under any such foreclosure
sale. Tenant covenants and agrees that it will, at the written request of the
party secured by any such mortgage or deed of trust, execute, acknowledge and
deliver any instrument that has for its purpose and effect the subordination of
said mortgage or deed of trust to the lien of this Lease. At the option of any
landlord under any ground or underlying lease to which the lease is now or may
hereafter become subject or subordinate, Xxxxxx agrees that neither the
cancellation nor termination of such ground or underlying lease shall, by
operation of law or otherwise, result in cancellation or termination of this
Lease or the obligations of Tenant hereunder.
13.3 Attornment. Tenant convenants and agrees to attorn to any successor to
Xxxxxxxx's interest in any ground or underlying lease, and in that event, this
Lease shall continue as a direct lease between Tenant herein and such landlord
or its successor. In any case, such landlord or successor under such ground or
underlying lease shall not be bound by any prepayment on the part of Tenant of
any rent for more than one month in advance, so that rent shall be payable under
this Lease in accordance with its terms, from the date of the termination of the
ground or underlying lease, as if such prepayment had not been made. Neither
shall such landlord or successor under such ground or underlying lease be bound
by this Lease or any amendment or modification of this Lease unless, prior to
the termination of such ground or underlying lease, a copy of this Lease or
amendment or modification thereof, as the case may be, shall have been delivered
to such landlord or successor.
14. TENANT HOLDOVER
14.1 With Landlord Consent. If Tenant continues, with the knowledge and
written consent of Landlord obtained at least thirty (30) days prior to the
expiration of the term of this Lease, to remain in the premises after the
expiration of the term of this Lease, then and in that event, Tenant shall, by
virtue of this holdover agreement, become a tenant by the month at the rent
stipulated by Landlord in said holdover agreement, commencing said monthly
tenancy with the first day next after the end of the term above demised. Tenant
shall give to Landlord at least thirty (30) days' written notice of any
intention to quit said premises. Tenant shall be entitled to thirty (30) days'
written notice to quit said premises, except in the event of nonpayment of rent
in advance or of the breach of any other covenant by Xxxxxx, in which event
Tenant shall not be entitled to any notice to quit, the usual thirty (30) days'
notice to quit being hereby expressly waived.
14.2 Without Landlord Consent. In the event that Tenant, without the
consent of Landlord, shall hold over the expiration of the term hereby created,
then Tenant hereby waives all notice to quit and agrees to pay to Landlord for
the period that Tenant is in possession after the expiration of this Lease, a
monthly rent which is three times the total rent (base monthly rent, as
stipulated in section 1.3, plus additional rent, as stipulated in section 1.5)
applicable to the last month of this Lease. Xxxxxx expressly agrees to hold
Landlord harmless from all loss and damages, direct' and consequential, which
Landlord may suffer in defense of claims by other parties against Landlord
arising out of the holding over by Xxxxxx, including without limitation
attorneys' fees which may be incurred by Landlord in defense of such claims.
Acceptance of rent by Landlord subsequent to the expiration of the term of this
Lease shall not constitute consent to any holding over. Landlord shall have the
right to apply all payments received after the expiration date of this Lease or
any renewal thereof toward payment for use and occupancy of the premises
subsequent to the expiration of the term and toward any other sums owed by
Xxxxxx to Landlord. Landlord, at its option, may forthwith re-enter and take
possession of said premises without process, or by any legal process in force.
Notwithstanding the foregoing, Xxxxxx's holdover without Landlord consent due to
acts of God, riot, or war shall be at the total rent applicable to the last
month of the term for the duration of the condition (but not to
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exceed ten days), but such continued occupancy shall not create any renewal of
the term of this Lease or a tenancy from year-to-year, and Tenant shall be
liable for any loss and damages suffered by Landlord as described above.
15. SECURITY DEPOSIT
15.1 Tenant shall deposit with Landlord simultaneously with the execution
of this Lease, the amount stipulated in section 1.6 as a security deposit.
Provided Tenant is not in default in the payment of rent or any other charges
due Landlord, and further provided the demised premises are left in good
condition, reasonable wear and tear excepted, as described in section 6.10, said
deposit (which shall not bear interest to Tenant) shall be returned to Tenant
within thirty (30) days after the termination of this Lease. If Tenant is in
default or if the premises are not left in good condition, then the security
deposit shall be applied to the extent available on account of sums due Landlord
or the cost of repairing damages to the demised premises. 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 such purchaser or transferee, in which
event 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 such security deposit.
16. QUIET ENJOYMENT
16.1 So long as Tenant shall observe and perform the covenants and
agreements binding on it hereunder, Tenant shall at all times during the term
herein granted, peacefully and quietly have and enjoy possession of the premises
without any encumbrance or hindrance by, from or through Landlord, except as
provided for elsewhere under this Lease. Nothing in this section shall prevent
Landlord from performing alterations or repairs on other portions of the
building not leased to Tenant, nor shall performance of such alterations or
repairs be construed as a breach of this convenant by Landlord.
17. SUCCESSORS
17.1 All rights, remedies and liabilities herein given to or imposed upon
either of the parties hereto, shall extend to their respective heirs, executors,
administrators, successors, and assigns. This provision shall not be deemed to
grant Tenant any right to assign this Lease or to sublet the premises.
18. WAIVER OF JURY TRIAL
18.1 Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other one or in respect of any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant hereunder,
Xxxxxx's use or occupancy of the demised premises, and/or any claim of "injury
or damage."
19. LIMITATION OF LIABILITY
19.1 Notwithstanding anything to the contrary contained in this Lease, if
any provision of this Lease expressly or impliedly obligates Landlord not to
unreasonably withhold its consent or approval, an action for declaratory
judgment or specific performance will be Xxxxxx's sole right and remedy in any
dispute as to whether Xxxxxxxx has breached such obligation.
20. PRONOUNS & DEFINITIONS
20.1 Feminine or neuter pronouns shall be substituted for those of the
masculine form, and the plural shall be substituted for the singular number, in
any place or places herein in which the context may require such substitution or
substitutions. Landlord and Tenant herein for convenience have been referred to
in the neuter form.
20.2 Wherever the word "premises" is used in this Lease, it shall refer to
the demised premises described in section 1.1, unless the context clearly
requires otherwise.
21. NOTICES
21.1 Addresses for Notices. All notices required or desired to be given
hereunder by either party to the other shall be personally delivered or given by
certified or registered mail and addressed as specified in section 1.10. Either
party may, by like written notice, designate a new address to which such notices
shall be directed.
21.2 Effective Date of Notice. Notice shall be deemed to be effective when
personally delivered or received or rejected unless otherwise stipulated herein.
22. EXHIBITS; SPECIAL PROVISIONS
22.1 Incorporation in Lease. It is agreed and understood that any Exhibits
and Special Provisions referred to in sections 1.11 and 1.12, respectively, and
attached hereto, form an integral part of this Lease and are hereby incorporated
by reference.
22.2 Conflicts. If there is a conflict between a Special Provision hereto
and the Specific Provisions or General Provisions of this Lease, the Special
Provision shall govern.
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23. CAPTIONS
23.1 All section and paragraph captions herein are for the convenience of
the parties only, and neither limit nor amplify the provisions of this Lease.
24. ENTIRE AGREEMENT; MODIFICATION
24.1 This Lease, all Exhibits hereto, and Special Provisions incorporated
herein by reference contain all the agreements and conditions made between the
parties and may not be modified orally or in any other manner than by an
agreement in writing, signed by the parties hereto.
25. SEVERABILITY
25.1 The unenforceability, invalidity, or illegality of any provision
herein shall not render any other provision herein unenforceable, invalid, or
illegal.
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26. LIMIT ON ADDITIONAL RENT
26.1 Notwithstanding the provisions of section 2.2(c), Landlord agrees that
the additional rent stipulated in section 1.5(c) based upon increases in the CPI
that Tenant is obligated to pay in any calendar year during the term of this
Lease, shall not be more than Four Percent (4%) above the total of base annual
rent stipulated in section 1.3 and additional rent stipulated in section 1.5(c)
payable for the preceding calendar year.
26.2 Notwithstanding the provisions of section 2.2(b), Landlord agrees that
the additional rent stipulated in section 1.5(b) based upon increases in
operating expenses that Tenant is obligated to pay in any calendar year during
the term of this Lease, shall not be more than Nine Percent (9%) above the
additional rent for operating expenses stipulated in section 1.5(b) payable for
the preceding calendar year.
27. WAIVER OF RENT
27.1 Notwithstanding anything to the contrary in section 2.1, Xxxxxxxx
agrees to waive the first Six (6) months' Base Annual Rent due hereunder.
28. LANDLORD IMPROVEMENTS
28.1 Landlord agrees at its expense to remodel or make improvements to the
demised premises substantially in accordance with the attached plan (Exhibit
"A"), including painting, rearranging of floor telephone and floor electrical
outlets, recarpeting with building standard carpet, installing a new ceiling
with recessed lighting, new shelving and dedicated power outlets as required.
Landlord makes no representation that carpeting or special improvements that may
presently be in the demised premises will remain for Tenant's use.
28.2 In the event Landlord has not substantially completed remodeling the
demised premises within Sixty (60) days after the Lease Commencement Date, then
Tenant's obligation to pay rent shall xxxxx until substantial completion is
achieved.
29. PARKING
29.1 Landlord agrees to arrange for parking in the garage of the building
described in section 1.1 for up to Nine (9) automobiles of Tenant or Tenant's
employees at the prevailing monthly rate for such service.
30. LATE FEE
30.1 In section 2.9, change 'five percent (5%)' to "two percent (2%)"; and
in the last line, after 'unpaid' insert "provided, however, that the maximum
late fee on any single due amount shall not exceed Twenty-Four Percent (24%)".
31. OCCUPANCY PERMIT
31.1 Notwithstanding anything to the contrary in section 3.3, Landlord,
with Xxxxxx's cooperation, will obtain the necessary occupancy permit.
32. SUBLETTING
32.1 In section 4.1, in the third line, after 'consent' insert "which shall
not be unreasonably withheld" and delete the rest of the sentence; and delete
the 5th sentence entirely.
32.2 In section 4.2, delete the last sentence entirely.
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32.3 Notwithstanding the provisions of section 4.3 to the contrary, in the
event Landlord does not exercise its right to terminate this Lease, Tenant may
sublet all or a portion of the demised premises after first obtaining the
written consent of the Landlord, provided that Fifty Percent (50%) of the excess
of any rent accruing to Tenant as a result of such sublease over the rent then
being paid by Tenant shall be paid by Tenant to the Landlord as additional
monthly rent.
33. BUILDING SERVICES
33.1 In section 5.1, in the first line, after 'furnish' insert "24 hours
per day, 7 days per week"; in the second line, after "calculators" insert
"desktop computers".
33.2 Notwithstanding anything to the contrary in Section 5.1, Landlord will
operate and maintain the building to standards consistent with other first class
buildings in Rockville, and will use its best efforts to repair and maintain the
building properly.
33.3 In subsection 5.3(b), in the third line, change 'two (2)' to "four
(4)".
34. RULES AND REGULATIONS
34.1 In section 6.9, delete the 2nd sentence entirely and add the following
at the end of the paragraph:
"However, any such additional rules and regulations must be reasonable
and Tenant shall not be bound thereby until after thirty (30) days' prior
written notice of such rule or regulation."
35. LANDLORD'S ACCESS
35.1 In section 7.1, in the fourth line, change 'six (6)' to "three (3)".
35.2 Notwithstanding Landlord's access rights, Landlord shall not
unreasonably disturb or adversely affect Tenant's business.
36. DAMAGE TO THE DEMISED PREMISES
36.1 In section 9.1, in the third line, after 'Landlord' insert "after ten
(10) days' prior written notice to Tenant".
36.2 Notwithstanding anything in section 9.1, Landlord's repairs shall not
exceed in quality the level of improvements in the demised premises as existing
prior to such damage.
36.3 In section 9.3, in the 9th line, after 'then Landlord' insert "or
Tenant" and in the 10th line, change 'Tenant' to "the other".
37. LANDLORD'S INSURANCE
37.1 Landlord shall obtain and maintain fire and casualty insurance
covering the Building in an amount equal to its replacement value.
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38. CONDEMNATION
38.1 In section 10.1, in the seventh line, before 'opinion' insert "or
Tenant's"; after 'Landlord' insert "or Tenant"; and change 'Tenant' to "the
other".
39. BANKRUPTCY
39.1 In subsection 11.1(b), in the first line, after 'assets' insert "which
is not dismissed within thirty (30) days".
40. DEFAULT
40.1 Notwithstanding anything to the contrary in sections 2.1 and 12.l, if
Tenant defaults in the payment of rent, or defaults in the performance of any
other covenants, conditions and agreements, or rules and regulations herein
contained, Landlord shall give Tenant written notice of such default. If Tenant
fails to cure any rent (or additional rent) default within ten (10) days, or
fails to cure any other default within twenty (20) days after such notice, or if
such other default is of such nature that it cannot be completely cured within
said twenty (20) days, if Tenant does not commence such curing within twenty
(20) days and thereafter proceed with reasonable diligence and in good faith,
then Landlord may terminate this Lease on not less than ten (10) days notice to
Tenant. On the date specified in such notice, the term of this Lease shall
terminate, and Tenant shall then quit and surrender the premises to Landlord. If
this Lease shall have been so terminated by Landlord, Landlord may at any time
thereafter take possession of the demised premises by any lawful means and
remove Tenant or other occupants and their effects. Nevertheless, in the event
Tenant fails to pay rent two (2) times or more in any twelve (12) month period
or repeatedly or continuously violates covenants, conditions and agreements or
rules and regulations herein contained, then Landlord shall not be required to
send written notice before proceeding with its remedies under section 12. Tenant
acknowledges that the purpose of this provision is to prevent repetitive
defaults by Tenant under the Lease, which works a hardship upon Landlord and
deprives Landlord of the timely performance by Tenant hereunder.
40.2 Notwithstanding anything in section 12, Landlord will use its best
efforts to mitigate Tenant's damages.
41. NON-DISTURBANCE
41.1 Notwithstanding anything to the contrary in section 13, Xxxxxxxx
agrees to use its best efforts to obtain a nondisturbance agreement from
existing and future mortgagees granting unto Tenant the right to continue
peacefully in possession of the demised premises in the event of foreclosure
under any existing or future deed of trust or termination of any existing or
future ground lease, as long as Tenant is not in default under this Lease. Such
agreement shall be contingent upon Tenant's agreement to attorn to and recognize
any purchaser at any foreclosure sale, any subsequent ground lessor, its
successors or assigns, as the successor-in-interest to Landlord in the event of
foreclosure or termination of such ground lease.
42. ESTOPPEL CERTIFICATES
42.1 In section 13.2, delete the fourth sentence entirely.
18
43. TENANT'S HOLDOVER
43.1 In section 14.2, in the third line, change 'three' to "one and one
half".
44. JURY TRIAL
44.1 Section 18.1 is hereby deleted in its entirety.
45. EXECUTION OF DOCUMENT
45.1 In the event Tenant does not execute and return this document by the
close of business on October 7, 1988, then Landlord may market the subject space
to others without further notice to Tenant.
46. ADDITIONAL RENT
46.1 Notwithstanding anything in section 2.2, Operating Expenses shall not
include: costs incurred in improving or remodeling any space for tenants in the
building; any costs reimbursed to Landlord by insurance or any other third
party.
46.2 In subsection 2.3 (d), in the 8th line, after 'refunded' insert
"within ten (10) business days".
47. ALTERATIONS
47.1 In subsection 6.4 (b), in the ninth and tenth lines, change 'five (5)'
to "thirty (30)".
48. SIGNAGE
48.1 Landlord will provide Tenant with a listing on the building directory
and a sign for Tenant's suite entrance.
49. MOVING AND DELIVERIES
49.1 In subsection 6.8 (a), at the end of the 1st sentence, add "except as
Tenant may otherwise agree with the building manager".
50. LANDLORD'S NEGLIGENCE
50.1 (a) Nothing contained in section 8.2 shall be construed to require
Tenant to indemnify and hold harmless Landlord, its agents or employees, from
Landlord's liability to third parties for its negligent or willful acts or
omissions or the expenses of defending against claims arising therefrom.
(b) Notwithstanding anything to the contrary in section 8, Landlord shall
be liable for its negligent or willful acts or omissions and that of its agents
or employees.
19
51. MUTUAL WAIVER OF SUBROGATION
51.1 Tenant hereby waives any right it may have against Landlord or
Landlord's Agent on account of any loss or damage occasioned to Tenant, its
property, the Demised Premises or its contents arising from any risk generally
covered by fire and extended coverage insurance, whether or not such a policy
shall be in force. Landlord hereby waives any rights it may have against Tenant
on account of any loss or damage occasioned to Landlord, its property, or to the
Building of which the Demised Premises are a part arising from any risk
generally covered by fire and extended coverage insurance, whether or not such a
policy shall be in force.
52. TENANT'S INSURANCE
52.1 In subsection 8.4 (b), in the second line, insert an apostrophe after
'demised premises' and delete 'and its'.
53. BANKRUPTCY
53.1 Subsection 11.2 (e) is hereby deleted entirely.
53.2 In subsection 11.2 (f), in the third line, change 'five (5)' to "ten
(10)".
54. ANTICIPATORY REPUDIATION
54.1 In section 12.6, delete the second to last sentence of the paragraph
entirely.
55. ATTORNMENT
55.1 In section 13.3, delete the last sentence entirely.
56. SECURITY DEPOSIT
56.1 Tenant shall open a certificate of deposit account in the name of
Xxxxxxx X. Xxxxx Management, Inc. (Landlord's exclusive agent) at First American
Bank, or another local bank reasonably acceptable to Landlord, and shall
immediately deposit the amount stipulated in section 1.6 as a security deposit
into the account. The account shall be set up so that only Xxxxxxx X. Xxxxx
Management, Inc. will be permitted to withdraw the principal amount until the
expiration of this Lease term, or any extensions thereof and Tenant shall
provide Xxxxxxx X. Xxxxx Management, Inc. with a certificate of deposit and
signature cards required to draw upon such funds. Provided Tenant is not in
default in the payment of rent or any other charges due Landlord, and further
provided the demised premises are left in good condition, reasonable wear and
tear excepted, as provided in, section 6.10, said deposit shall be returned to
Tenant within thirty (30) days after said Lease expiration.
If Tenant is in default or if the premises are not left in good condition, then
after notice to Tenant, as provided in section 6.10, the security deposit shall
be applied to the extent available on account of sums due Landlord or the cost
of repairing damages to the demised premises. Landlord shall have the right to
approve any restrictions on its power to draw on such funds due to Tenant's
default. 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 such
purchaser or transferee, in which event 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 such security deposit.
All interest accrued on the account and paid by the bank shall belong to Tenant
solely, and Landlord shall have no right thereto.
20
57. TEMPORARY SPACE
57.1 If, due to Xxxxxxxx's fault, Landlord is unable to substantially
complete remodeling of the demised premises by December 1, 1988, Landlord will
locate alternate space of a minimum 2,200 square feet in the building sufficient
to allow Tenant to operate until the demised premises are ready. Landlord will
reimburse Tenant's expenses of relocating from such temporary space to the
demised premises, including telephone connection expenses, upon presentation of
paid receipts or invoices from Tenant's contractors.
58. CONSENTS AND APPROVALS
58.1 Whenever Landlord's or Tenant's consent or approval is required
hereunder, it shall not be unreasonably withheld or delayed.
21
EXHIBIT A
[FLOOR PLAN]
[GRAPHIC OMITTED]
22
EXHIBIT "C"
BUILDING RULES AND REGULATIONS
1. Tenant shall not obstruct or interfere with the rights of other tenants of
the Building, or of persons having business in the Building, or in any way
injure or annoy such tenants or persons. Tenant will not conduct any
activity within the Demised Premises which will create excessive traffic or
noise anywhere in the Building.
2. Canvassing, soliciting and peddling in the Building are prohibited, and
Tenant shall cooperate to prevent such activities.
3. Tenant shall not bring or keep within the Building any animal, bicycle,
motorcycle, or other type of vehicle except as required by law.
4. All office equipment and any other device of any electrical or mechanical
nature shall be placed by Tenant in the Demised Premises in settings
approved by Landlord, so as to absorb or prevent any vibration, noise, or
annoyance. Tenant shall not construct, maintain, use or operate within the
Demised Premises or elsewhere in the Building or outside of the Building
any equipment or machinery which produces music, sound or noise, which is
audible beyond the Demised Premises. Tenant shall not cause improper
noises, vibrations or odors within the Building.
5. Tenant shall not deposit any trash, refuse, cigarettes, or other substances
of any kind within or out of the Building, except in the refuse containers
provided therefor. No material shall be placed in the trash boxes or
receptacles if such material is of such nature that it may not be disposed
of in the ordinary and customary manner of removing and disposing of office
building trash and garbage without being in violation of any law or
ordinance governing such disposal. Tenant shall be charged the cost of
removal for any items left by Tenant that cannot be so removed. All garbage
and refuse disposal shall be made only through entryways and elevators
provided for such purposes and at such times as Landlord shall designate.
Tenant shall not introduce into the Building any substance which might add
an undue burden to the cleaning or maintenance of the Demised Premises or
the Building. Tenant shall exercise its best efforts to keep the sidewalks,
entrances, passages, courts, lobby areas, garages or parking areas,
elevators, escalators, stairways, vestibules, public corridors and halls in
and about the Building (hereinafter "Common Areas") clean and free from
rubbish. No tenant shall cause any unnecessary labor by reason of such
tenant's carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to any tenant for any loss
of property on the Demised Premises, however occurring, or for any damage
done to the effects of any tenant by the cleaning service or any other
employee or any other person.
6. Tenant shall use the Common Areas only as a means of ingress and egress,
and Tenant shall permit no loitering by any persons upon Common Areas or
elsewhere within the Building. The Common Areas and roof of the Building
are not for the use of the general public, and Landlord shall in all cases
retain the right to control or prevent access thereto by all persons whose
presence, in the judgment of Landlord, shall be prejudicial to the safety,
character, reputation or interests of the Building and its tenants. Tenant
shall not enter or install equipment in the mechanical rooms, air
conditioning rooms, electrical closets, janitorial closets, or similar
areas or go upon the roof of the Building without the prior written consent
of Landlord. No tenant shall install any radio or television antenna,
loudspeaker, or other device on the roof or exterior walls of the Building.
7. Without limitation upon any of the provisions of the Lease, Tenant shall
not mark, paint, drill into, cut, string wires within, or in any way deface
any part of the Building, without the prior written consent of Landlord,
and as Landlord may direct. Upon removal of any wall decorations or
installations or floor coverings by Tenant, any damage to the walls or
floors shall be repaired by Tenant at Tenant's sole cost and expense.
Tenant shall not lay linoleum or similar floor coverings so that the same
shall come into direct contact with the floor of the Demised Premises and,
if linoleum or other similar floor covering is to be used, an interlining
of builder's deadening felt shall be first affixed to the floor, by a paste
or other materials soluble in water. The use of cement or other similar
adhesive material is expressly prohibited. Floor distribution boxes for
electric and telephone wires must remain accessible at all times.
8. Tenant shall not install or permit the installation of any awnings, shades,
mylar films or sunfilters on windows. Tenant shall cooperate with Landlord
in obtaining maximum effectiveness of the cooling system of the Building by
closing drapes and other window coverings when the sun's rays fall upon
windows of the Demised Premises. Tenant shall not obstruct, alter or in any
way impair the efficient operation of Landlord's heating, ventilating, air
conditioning, electrical, fire, safety or lighting systems, nor shall
Tenant tamper with or change the setting of any thermostat or temperature
control valves in the Building.
9. Tenant shall not use the washrooms, restrooms and plumbing fixtures of the
Building, and appurtenances thereto, for any other purpose than the purpose
for which they were constructed, and Tenant shall not deposit any
sweepings, rubbish, rags or other improper substances therein. Tenant shall
not waste water by interfering or tampering with the faucets or otherwise.
If Tenant or Tenant's servants, employees, agents, contractors, jobbers,
licensees, invitees, guests or visitors cause any damage to such washrooms,
restrooms, plumbing fixtures or appurtenances, such damage shall be
repaired at Tenant's expense, and Landlord shall not be responsible
therefor.
10. Subject to applicable fire or other safety regulations, all doors opening
onto Common Areas and all doors upon the perimeter of the Demised Premises
shall be kept closed and, during non-business hours, locked, except when in
use for ingress or egress. If Tenant uses the Demised Premises after
regular business hours or on non-business days, Tenant shall lock any
entrance doors to the Building or to the Demised Premises used by Tenant
immediately after using such doors. Tenant shall cooperate with energy
conservation by limiting use of lights to areas occupied during
non-business hours.
Exh. C-1
11. Employees of Landlord shall not receive or carry messages for or to Tenant
or any other person, nor contract with nor render free or paid services to
Tenant or Tenant's servants, employees, contractors, jobbers, agents,
invitees, licensees, guests or visitors. In the event that any of
Landlord's employees perform any such services, such employees shall be
deemed to be the agents of Tenant regardless of whether or how payment is
arranged for such services, and Tenant hereby indemnifies and holds
Landlord harmless from any and all liability in connection with any such
services and any associated injury or damage to property or injury or death
to persons resulting therefrom.
12. All keys to the exterior doors of the Demised Premises shall be obtained by
Tenant from Landlord, and Tenant shall pay to Landlord a reasonable deposit
determined by Landlord from time to time for such keys. Tenant shall not
make duplicate copies of such keys. Tenant shall, upon the termination of
its tenancy, provide Landlord with the combinations to all combination
locks on safes, safe cabinets and vaults and deliver to Landlord all keys
to the Building, the Demised Premises and all interior doors, cabinets, and
other key-controlled mechanisms therein, whether or not such keys were
furnished to Tenant by Landlord. In the event of the loss of any key
furnished to Tenant by Landlord, Tenant shall pay to Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key
if Landlord shall deem it necessary to make such a change. The word "key"
as used herein shall refer to keys, keycards, and all such means of
obtaining access through restricted access systems.
13. For purposes hereof, the terms "Landlord", "Tenant", "Building" and
"Demised Premises" are defined as those terms are defined in the Lease to
which these Rules and Regulations are attached. The term "Building" shall
include the Demised Premises, and any obligations of Tenant hereunder with
regard to the Building shall apply with equal force to the Demised Premises
and to other parts of the Building.
14. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part the agreements,
covenants, conditions and provisions of any lease of Demised Premises in
the Building.
Exh. C-2
EXHIBIT D
CLEANING SERVICES BY LANDLORD
A. Daily
Monday through Friday except legal holidays.
1. Empty waste baskets, clean ash trays.
2. Dust accessible areas of desk tops.
3. Vacuum carpet in elevator lobbies, reception areas, and other high
traffic areas.
4. Mop spillages on tile floors.
B. Weekly
1. Dust accessible areas of furniture convectors and other furnishings.
2. Vacuum office area carpeting.
C. Monthly
1. Mop and buff tile floors.
2. Dust Venetian blinds, window frames, and exterior of lighting
fixtures.
3. Clean glass in doors and partitions.
4. Spot clean walls.
5. Clean telephones.
D. Quarterly
1. Clean and refinish tile floors where necessary.
2. Clean baseboards.
E. Semi-annually
1. Wash windows.
F. Annually
1. Wash light fixtures, and lenses.
2. Clean Venetian blinds.
NOTE: Cleaners will not move paper or other material from surfaces to be
cleaned, dusted or vacuumed. Trash not in waste baskets should be
clearly marked "trash". Cleaning of private kitchens or bathrooms is
the responsibility of Tenant.
ADDITIONAL SPACE
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE made this 1st day of September, 1992, by and
between BUILDING NO. 7 ASSOCIATES, a Maryland joint venture (hereinafter
"Landlord"), and SHERWOOD BRANDS, INC., a North Carolina corporation
(hereinafter "Tenant").
WITNESSETH:
WHEREAS, Xxxxxxxx and Tenant desire to amend that certain lease agreement
dated October 14, 1988 (the "Lease"), which provides for the leasing of Suite
1080, consisting of approximately 2,831 square feet on the Tenth (10th) floor at
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx, as extended to November 30, 1998,
by a First Lease Extension Agreement of even date herewith; and
WHEREAS, Tenant desires to lease an additional area, of 789 square feet on
the Tenth (10th) floor of said building known as Suite 1081, as delineated on
the attached plan.
NOW, THEREFORE, the parties hereto agree as follows:
1. Area. Landlord hereby leases to Tenant and Tenant leases from
Landlord, Suite 1081, containing approximately 789 square feet of
additional space on the Tenth (10th) floor (the "additional leased space"),
making the total demised premises 3,620 square feet.
2. Term. The term of the additional leased space shall commence
September 1, 1992, and shall expire contemporaneously with the term of the
Lease, as extended.
3. Rent. The base monthly rent for the additional leased space shall
be Five Hundred Twenty-Six Dollars ($526.00), thereby increasing the total
base monthly rent from Three Thousand Nineteen and 73/100 Dollars
($3,019.73) to Three Thousand Five Hundred Forty-Five and 73/100 Dollars
($3,545.73), payable in advance in accordance with the terms of the Lease.
4. Additional Rent. Tenant's pro rata share of any increases in real
estate taxes and operating expenses commencing December 1, 1992, shall be
increased by .40 percentage point from 1.43% to 1.83%.
5. Acceptance of Space. Tenant shall accept the additional leased
space in its existing "as is" condition and shall be obligated for the
payment of rent immediately, regardless of any time required by Tenant to
construct, alter or redecorate the additional leased space to Tenant's
requirements.
6. Rent Waiver. Provided Tenant is not then in default under any of
the terms and conditions of the Lease, then notwithstanding anything to the
contrary in Section 2.1 of the Lease, Landlord agrees to waive payment of
Two Hundred Thirty-Six and 67/100 Dollars ($236.67) of Base Annual Rent due
in each of the first (1st) through the fourth (4th) months of the term for
the additional leased space only.
CL1-637
FIRST AMENDMENT TO LEASE
PAGE TWO
7. Base Year. For the additional leased space only the Base Year for
additional rent based on increases in Operating Expenses and Real Estate
Taxes shall be calendar year 1992, and the base period for CPI shall be
November, 1992.
8. Parking. Xxxxxxxx agrees to provide Tenant with one (1) unreserved
parking space at no cost for the term of the Lease.
9. Improvements. Notwithstanding Section 6.4 of the Lease agreement,
Xxxxxxxx agrees that any improvements made to the additional leased space
are considered the property of Tenant. In addition, Xxxxxxxx agrees that
all cabinetry, shelving, and plumbing fixtures in the entire premises are
the property of Tenant and may be removed at the expiration of the Lease at
Tenant's option.
10. Execution of Document. In the event Xxxxxx does not execute and
return this document by the close of business on September 30, 1992, then
Landlord may market the subject space to others without further notice to
Tenant.
11. All of the terms and conditions of the Lease, as modified by this
First Amendment to Lease, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the day and year hereinbefore first written.
WITNESS: LANDLORD: BUILDING NO. 7
ASSOCIATES
[ILLEGIBLE] BY [ILLEGIBLE] (SEAL)
---------------------------------- -------------------------------
Joint Venturer
ATTEST: TENANT: SHERWOOD BRANDS, INC.
[ILLEGIBLE] BY /s/ Xxxx Xxxxxxxx (SEAL)
---------------------------------- -------------------------------
Secretary Name: Xxxx Xxxxxxxx
(Corporate Seal) Title: VP - Finance
LEASE EXTENSION AGREEMENT
-------------------------
THIS LEASE EXTENSION AGREEMENT made this _______ day of _______________,
1992, by and between BUILDING NO. 7 ASSOCIATES, a Maryland joint venture
(hereinafter "Landlord"), and SHERWOOD BRANDS, INC., a North Carolina
corporation (hereinafter "Tenant").
WITNESSETH:
WHEREAS, the parties hereto entered into a lease agreement dated October
14, 1988 (the "Lease"), which provides for the leasing of Suite 1080, consisting
of approximately 2,831 square feet of office space in the building located at
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx for a term expiring November 30,
1993; and
WHEREAS, the parties hereto desire to extend the term of the aforesaid
Lease.
NOW, THEREFORE, the parties hereto agree as follows:
1. The Lease is hereby extended for a further period of Five (5)
years, commencing December 1, 1993 and expiring November 30, 1998.
2. Commencing September 1, 1992, the base monthly rent for the
existing and extended terms shall be Three Thousand Nineteen and 73/100
Dollars ($3,019.73).
3. For the extended term only, the base period for additional rent
based on increases in the CPI only shall be November, 1992, and Tenant
shall commence paying CPI additional rent on September 1, 1993.
4. All of the terms and conditions of the Lease as modified by this
Lease Extension Agreement, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the day and year xxxxxxxxxxx first written.
WITNESS: LANDLORD: BUILDING NO. 7
ASSOCIATES
[ILLEGIBLE] BY [ILLEGIBLE] (SEAL)
---------------------------------- -------------------------------
Joint Venturer
ATTEST: TENANT: SHERWOOD BRANDS, INC.
[ILLEGIBLE] BY /s/ Xxxx Xxxxxxxx (SEAL)
---------------------------------- -------------------------------
Secretary Name: Xxxx Xxxxxxxx
(Corporate Seal) Title: VP - Finance
