Exhibit 10.4
Std. Ind. Lease
Revised 7/19/89
LEASE AGREEMENT
THIS LEASE, made this 4th day of October 1989, between CHIPPEWA LIMITED
PARTNERSHIP, a Maryland Limited Partnership (hereinafter called "Landlord"), and
CASE/Xxxxxxx.Xxx., a Delaware corporation, (hereinafter called "Tenant"). In
consideration of the premises and the covenants, conditions and rents
hereinafter set forth, it is agreed as follows:
1. PREMISES AND TERM:
A. Landlord does hereby lease, demise and let to Tenant, and Tenant does
hereby lease, take and accept from Landlord, the "Premises", being comprised of
approximately Seventy-Two Thousand Three Hundred and Forty-Two (72,342) leasable
square feet of space located in a one story building known as 0000 Xxxxxxxx
Xxxxx (hereinafter the "Improvements") and 243 free and reserved parking spaces
(hereinafter "Parking") as outlined in red on the building and site plan
attached hereto as Exhibit A which building contains a leasable area of
Ninety-Seven Thousand (97,000)- square feet and is located on all that lot of
ground in Xxxxxx County, Maryland more fully described in Exhibit B attached
hereto, containing 6.3 acres of land more or less, together with the right to
use in common with other occupants of said Improvements any access road serving
the Improvements. Tenant shall have the exclusive right to the Parking and
Landlord shall use reasonable efforts to enforce the exclusivity of the Parking.
B. TO HAVE AND TO HOLD the same for a term commencing the later of (a)
completion of Tenant Improvements, as defined in Paragraph 2., satisfactory to
Tenant and Landlord or (b) ninety (90) calendar days from the full execution of
this Lease Agreement (hereinafter the "Commencement Date") and ending five (5)
years and five (5) months after the Commencement Date (hereinafter the
"Termination Date").
2. TENANT IMPROVEMENTS:
Landlord shall install, at Landlord's expense, the tenant improvements
(hereinafter the "Tenant Improvements") in a good and
workmanlike manner using only first-class materials and in compliance with
Governmental Regulations as defined in Paragraph 16, set forth in both the
Tenant Improvement Specifications attached hereto as Exhibit C-1, the
construction drawings attached hereto as Exhibit C-2, and the landscaping plan
attached hereto as Exhibit C-3.
Notwithstanding anything to the contrary contained in this Lease, the
Landlord shall diligently endeavor to complete (except for punch list items)
satisfactory to the Tenant and the Landlord the so-called "manufacturing area"
designated on the construction drawings attached hereto as Exhibit C-2 (the
"Manufacturing Area") on or before sixty (60) calendar days from the full
execution of this Lease Agreement. Upon completion, the Landlord will notify the
Tenant that a written approval of occupancy from Xxxxxx County has been obtained
at which time the Tenant shall have the option to occupy the Manufacturing Area
at any time prior to the Commencement Date. If occupied by the Tenant prior to
the Commencement Date, the Tenant shall pay the pro rata Base Rental and all
other charges specified in this Lease for the period from such occupancy to the
Commencement Date based on the ratio of the leasable square footage of the
Manufacturing Space to the leasable square footage of the Premises which amounts
shall be due and payable on the Commencement Date. All references in this Lease
to the term of this Lease shall include the period from such occupancy to the
Commencement Date.
3. RENT:
Tenant covenants to pay to Landlord at New Castle Corporate Commons, 00
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 0000 or at such place as
Landlord shall from time to time direct, the basic rent ("Basic Rental") of Five
Hundred Seventy-Eight Thousand Seven Hundred Thirty-Six and No/100 Dollars
($578,736.00) per year during the term of this Lease. Such Basic Rental shall be
payable in equal monthly installments of Forty-Eight Thousand Two Hundred
Twenty-Eight and No/100 Dollars ($48,228.00) each, in advance and without
demand, on the first day of each and every month during the term of this Lease,
commencing on the Commencement Date and at that rate for any fraction of a month
at the beginning of the term of this Lease. It is understood and agreed that the
rental payments f or the first five (5) months
after the Commencement Date shall be waived. In addition, Landlord acknowledges
that Tenant has previously paid to Landlord the sum of Five Thousand and No/100
Dollars ($5,000.00) which was applied to the cost of construction drawings for
the Premises, and said amount shall be credited to the First and Last Month's
Rent referenced in Paragraph 5.
A. Tenant covenants to pay when due, without any abatement deduction or
set-off except as provided for in this Paragraph 3., the rent provided for
herein and to pay as additional rent when due all other sums, costs, charges and
expenses payable by Tenant under this Lease, and, in the event of any nonpayment
thereof, such sums shall be collected as rent, and Landlord shall have all the
rights and remedies provided for herein or by law in the case of nonpayment of
rent.
B. Landlord shall not be liable to Tenant if Landlord does not deliver
possession of the Premises to Tenant after ninety (90) calendar days from the
full execution of this Lease Agreement if Landlord is delayed in completing
Tenant Improvements as defined in Paragraph 2 (except for punch list items
referenced in Paragraph 12.A., as a result of:
(1) The performance by any person, firm or corporation (other than
Landlord's contractor) employed at Tenant's request and the completion of work
by said person, firm or corporation;
(2) Delay in delivery of materials, finishes, or installations
requested by Tenant except those set forth in Exhibits C1, C-2 and C-3, and
other than materials, finishes and installation used as Building Standard items
by Landlord's contractors in the building; and
(3) Any other delay (including, without limitation, delay in
providing necessary approvals or disapprovals required of Tenant) caused by the
action or inaction of Tenant provided Landlord gives Tenant notice and
opportunity to eliminate the cause of the delay; and Tenant shall not be
relieved of its obligations to pay rent as prescribed in Paragraph 3.
If the Commencement Date shall be delayed beyond ninety (90)
calendar days from the full execution of this Lease Agreement due to Landlord's
failure to deliver possession of the Premises in accordance with Paragraph 1.B.,
Tenant shall receive a two (2) day rental allowance for every one (1) day after
such ninety (90) calendar days. In addition to the foregoing, Tenant shall have
the option to terminate this Lease Agreement if Landlord fails to deliver
possession of the Premises after one hundred twenty (120) calendar days from the
full execution of this Lease Agreement by giving written notice to Landlord,
which termination shall take effect upon the giving of such notice.
C. Termination Date. If Tenant occupies the Premises prior to the
Commencement Date, Tenant's occupancy of the Premises shall not advance the
Termination Date of this Lease. Tenant shall pay Base Rental and all other
charges specified in this Lease for the early occupancy period, unless occupied
for the purpose of installing Tenant's fixtures.
4. LATE PAYMENT
In the event that any payment required by Tenant under the provisions
hereof shall not be paid when due, and after any applicable notice and grace
period Tenant shall, upon demand, pay interest in an amount computed at 12% per
annum of each dollar so overdue until such payment is made, and such interest
shall be deemed "rent" for all purposes under this lease.
5. FIRST AND LAST MONTH'S RENT:
The first and last month's rent in the amount of Ninety-Six Thousand Four
Hundred Fifty-Six and No/100 Dollars ($96,456.00) will accompany this Lease.
Landlord acknowledges that said amount shall be reduced by Five Thousand and
No/100 Dollars ($5,000.00), which represents the credit for Tenant's
contribution to the cost of construction drawings of the Premises as previously
denoted in Paragraph 3.
6. TAXES:
A. Landlord shall pay, prior to delinquency, all real estate taxes,
assessments and charges which are levied, imposed, or assessed upon or against
the leased premises. If Landlord shall fail to pay any such taxes, assessments,
or charges prior to delinquency, Tenant shall have the right to pay same and to
deduct from any rent which may then or thereafter be due all amounts expended by
Tenant in making such payment. Should aforesaid taxes exceed in any lease year
the amount paid during the Base Year, Tenant shall pay its proportionate share
of such increase. Such proportionate share shall consist of the relation its
space on a leasable square footage basis bears to the total leasable square
footage of the building of which the leased Premises are a part. The leasable
square footage of the Premises comprises Seventy-Four and 58/100 percent
(74.58%) (hereinafter the "Tenant's Share") of the total leasable square footage
of the building of which the Premises is a part. Said xxxx will be due by Tenant
to Landlord within thirty (30) days after submission of xxxx to Tenant showing
in reasonable detail (which shall include copies of all tax bills to Landlord)
the calculation of the Tenant's Share of the increase.
B. The term "real estate taxes and assessments" shall include any public
charges against the land and improvements of which the Premises are a part
(including assessments by any County, Municipal, Metropolitan District or
Commission) and the term "Base Year" shall mean the twelve (12) month period
beginning July 1, 1990 and ending June 30, 1991; provided, that the Base Year
shall be the year in which real estate taxes and assessments are based on the
Improvements as improved by the Tenant Improvements and the year in which
premiums for fire and extended coverage insurance reflect the Tenant's occupancy
of the Premises. Landlord shall give Tenant prompt notice of any proposed
increase in real estate taxes and assessments and Tenant shall be entitled, at
its own expense, and through its own counsel, to participate with Landlord or
independently to contest or oppose any such increase. Landlord shall cooperate
with Tenant as may be reasonably required in any such contest. All refunds of
real estate taxes and assessments attributable to the Lease Term and which have
been paid by Tenant shall belong to Tenant.
7. FIRE AND EXTENDED COVERAGE AND RENTAL INSURANCE:
Tenant covenants to pay Landlord, as additional rent, Tenant's Share of
any increase after the Base Year of all premiums for fire and extended coverage
insurance on the Improvements of which the Premises are a part, as follows:
A. Premiums shall be adjusted and pro-rated to the Commencement Date or
the Termination Date of the term as the case may be.
B. Tenant shall pay Tenant's Share of such insurance premiums as set forth
above within thirty (30) days following receipt from the Landlord of a statement
of its calculations supported by copies of the actual xxxxxxxx rendered to
Landlord.
C. The fire and extended coverage policy shall expressly waive any right
of subrogation against Landlord or Tenant.
D. The Landlord covenants and agrees to pay all such premiums when due and
payable and to maintain fire and extended coverage insurance in at least the
amount of the full replacement cost of the Improvements.
E. In the event a change in the Tenant's occupancy and use of the Premises
occurs from the occupancy and use of the Premises at the commencement of this
Lease Agreement and which causes any increase in premiums for fire, and extended
coverage insurance or rental insurance on the Improvements of which the Premises
are a part above the then current rate, the Tenant shall pay the additional
premiums by reason thereof . Bills for such additional premiums shall be
rendered by Landlord to Tenant at such times as Landlord may elect and shall be
due from and payable by Tenant when rendered, and the amount thereof shall be
deemed to be, and be paid as additional rent.
F. Tenant shall not be obligated to pay Tenant's Share of such insurance
premiums if such increase is caused by the acts, omissions to act, or negligence
of the Landlord or any other tenant of the Improvements or any person, firm or
corporation employed at the Landlord's or such tenant's request.
8. COMMON AREA MAINTENANCE CHARGES:
Tenant covenants to pay Landlord, as additional rent, Tenant's Share of
all reasonable costs incurred for common area maintenance, which includes, but
is not limited to, snow removal, parking lot maintenance, grass cutting, grounds
maintenance, landscaping, security and common area electric, during the term of
the Lease. Such charges shall be billed in arrears not more frequently than
monthly, nor less frequently than annually, and all such xxxxxxxx shall include
copies of actual bills to Landlord and will become due and payable thirty (30)
days after they are billed to the Tenant.
9. UTILITIES:
Tenant shall pay all charges for separately metered gas, electricity,
light, heat, all public charges for sanitary sewage discharged from the Premises
and for water consumed on the Premises, power and all other utilities and
telephone or other communication services (provided, that the failure to pay all
charges for telephone or other communication services shall not constitute an
Event of Default under Paragraph 20) used, rendered or supplied upon or in
connection with the Premises.
10. LIENS OR ENCUMBRANCES:
Tenant shall not suffer the Premises or any erection of improvements
thereon to become subject to any lien, charge or encumbrances, unless promptly
bonded or discharged, and shall indemnify Landlord against all such liens,
charges and encumbrances which are the result of any act, neglect to act, or
negligence of the Tenant.
11. USE OF PREMISES:
Tenant shall use and occupy the Premises throughout the term hereof solely
for the purpose of general offices/light manufacturing. Tenant shall not load
the building hereby leased beyond its present carrying capacity of Three
Thousand (3,000) pounds per square inch.
12. ALTERATIONS AND IMPROVEMENTS:
A. Upon completion of the Tenant Improvements in accordance with paragraph
2 hereof, Landlord shall assign to Tenant all warranties relating to such Tenant
Improvements (a complete list of which is set
forth in Exhibit D) and shall have no further obligation to make any alterations
or improvements to the Premises except as provided in paragraph 13.C. hereof,
and except for (i) punch list items designated by the Tenant after inspection of
the Premises upon completion of the Tenant Improvements (which items shall be
completed by the Landlord within thirty (30) days after the Commencement Date)
and (ii) any defective workmanship and materials in the Tenant Improvements of
which the Tenant has given the Landlord notice not later than sixty (60) days
after the Commencement Date, or in the case of latent defects, not later than
one (1) year after the Commencement Date.
B. Tenant further covenants that it will at no time or times make any
alterations, improvements or changes of any kind over Thirty Thousand Dollars
($30,000) to the Premises without first submitting the plans thereof and
securing the prior written consent of the Landlord, which consent shall not be
unreasonably withheld or delayed; however, Tenant agrees to submit all plans for
alterations, improvements or changes of any kind to Landlord for its
professional review and advice regarding construction matters prior to
performing said alterations, improvements or changes; which review and advice
shall be provided to the Tenant within ten (10) days of submission of the plans
to the Landlord. Tenant may, at its own option and without having to secure the
consent, written or otherwise of the Landlord,
(1) make any alterations or changes of any kind to the Premises
which may be required by any governmental order or regulation, and such
alterations or changes shall, if made by Tenant, be made at no expense to
Landlord; and
(2) undertake any landscaping or similar work with respect to the
Premises (including the Improvements) which are of a minor nature; provided that
such work or alterations or changes are performed at no cost to Landlord. All
improvements, alterations, replacements and building service equipment made or
installed by or on behalf of Tenant and permanently affixed to the Improvements
shall immediately upon completion or installment thereof be and become the
property of Landlord, without payment therefor by Landlord, but subject to the
provisions of this Lease; provided that all machinery, equipment (other than
building service equipment), trade fixtures, movable
partitions, furniture and furnishings installed by Tenant or maintained on the
Premises, even if permanently affixed thereto, shall remain the property of
Tenant, and Tenant shall be entitled to remove the same or any part thereof at
any time during the Lease term, but Tenant shall, at its expense, repair any and
all damage to the Premises resulting from or caused by such removal. The
interest of Tenant in any property which is not so removed shall at the end of
thirty (30) days after the termination of this Lease vest in Landlord.
13. REPAIRS AND MAINTENANCE:
A. Subject to (i) Landlord's obligation to deliver the Premises as
provided for in Paragraph 1.B. and (ii) Landlord's maintenance and repair
obligations set forth in Paragraph 12.A., 13.C. and 13.D, and to the extent not
covered by insurance or the warranties relating to the Tenant Improvements as
more particularly described in Paragraph 12.A., Tenant covenants throughout the
term, at its expense, to maintain in good order and repair the interior
structure of the Premises, and to maintain and replace when necessary, all
window and door glass therein, interior and exterior; to maintain and repair all
building service equipment which exclusively serve the Premises therein
including, but not limited to, electrical, plumbing, heating, air conditioning
and sprinkler equipment, pipes, wires, ducts, fixtures and appliances; to make
all ordinary and necessary repairs to the Premises; to keep the Premises in a
safe, clean and sanitary condition; to provide for the removal of trash and
rubbish produced by the Tenant; and to surrender the Premises at the end of the
term in as good condition as when received except for ordinary wear and use,
fire or other unavoidable casualty.
B. Without limiting Tenant's obligations under Paragraph 13.A. above,
Tenant shall, at all times during the term of this Lease, have and keep in force
a maintenance contract, in form and with a contractor reasonably satisfactory to
Landlord (a list of satisfactory contractors is set forth in Exhibit E),
providing for inspection at least once each calendar quarter of the heating, air
conditioning and ventilating equipment (which inspection shall encompass the
work described on Exhibit F attached hereto and made a part hereof) , and
providing for necessary repairs thereto. Said contract shall provide that it
will not
be cancellable by either party thereto except upon thirty (30) days' prior
written notice to Landlord. Tenant shall send to Landlord a copy of this
contract within thirty (30) days of the Commencement Date of this Lease, as well
as provide Landlord with copies of all service calls and reports within thirty
(30) days after requested by Landlord.
C. Landlord agrees to perform at its expense, maintenance to the exterior
structure of the building and roof and building service equipment not
exclusively servicing the Premises, except when such repairs are necessitated by
negligence of the Tenant.
D. Landlord agrees to perform the common area maintenance set forth in
Paragraph 8., the expense of which shall be charged to Tenant as a Common Area
Maintenance Charge.
E. The Tenant covenants and agrees that the Landlord shall not be held
responsible for and the Landlord is hereby released and relieved from, and
forever saved harmless from, any liability by reason of or resulting from damage
or injury to person or property of the Tenant or of anyone else, directly or
indirectly caused by
(1) dampness or water in any part of said premises or in any part of
any other property of the Landlord or of others and/or
(2) any leak or break in any part of said Premises or in any part of
any other property of the Landlord or of others or in the pipes of the plumbing
or heating works thereof, no matter how caused; provided, that any such damage
or injury as described in (1) or (2) is not caused by any act, omission to act,
or negligence of the Landlord or any person, firm or corporation employed at
Landlord's request.
14. LIABILITY INSURANCE:
Tenant shall obtain and maintain public liability insurance insuring
Landlord against claims for bodily injury or death occurring in or about the
Premises and on, in or about the adjoining driveways and passageways, to the
limit of not less than One Million Dollars ($1,000,000.00) in respect of bodily
injury or death to one person, and to the limit of not less than Three million
Dollars ($3,000,000.00) in respect of one accident, and property damage
insurance insuring against
claims for damage or injury to property of others occurring in or about the
Premises and on, in or about the adjoining streets and passageways, to the limit
of not less than One Hundred Thousand Dollars ($100,000.00) in respect to damage
to the property of another.
Said policy shall provide that notwithstanding any negligent act of Tenant
which might otherwise result in its forfeiture, the policy shall not be
cancelled without at least thirty (30) days written notice to each named
assured. A certificate of insurance shall be delivered to Landlord.
15. DAMAGE OR DESTRUCTION:
A. If during the term the Premises are damaged by fire or other casualty,
but not to the extent that Tenant is prevented from carrying on its business in
the Premises, Landlord shall promptly restore the Premises to their condition
immediately prior to the casualty, but not later than sixty (60) days after the
casualty. If said restorations are not accomplished within said sixty (60) days,
Tenant shall retain the right to make said restorations at Landlord's expense.
B. If during the term the Premises are destroyed or so damaged by fire or
other casualty that Tenant is prevented from carrying on its business in the
Premises, Landlord shall have the option either to restore the Premises to their
condition immediately prior to the casualty or to terminate the Lease. Such
option shall be exercised by Landlord by written notice to the Tenant within
thirty (30) days after the casualty.
If Landlord chooses to restore the Premises, it shall prepare or cause to
be prepared by its construction representative a reasonable estimate of the time
needed to restore the Premises to their condition immediately prior to the
casualty. Such estimate shall accompany the written notice to Tenant. If the
time period to restore the Premises indicated in the notice exceeds one hundred
twenty (120) days from the date such notice is given to Tenant, Tenant may
terminate this Lease within ten (10) working days of receipt of Landlord's
notice, provided, however, that termination shall not occur unless Landlord's
lender has been given notice and opportunity to cause repairs to be made within
a
time period not to exceed one hundred twenty (120) days from the date notice is
given to the Tenant of Landlord's decision to restore the Premises.
If the restoration period is less than one hundred twenty (120) days or if
Tenant agrees to a period in excess of one hundred twenty (120) days, then
Landlord shall promptly commence such repair work and diligently proceed to
complete the same.
Rent shall be equitably abated for any period that the Premises are
destroyed or damaged to the extent that Tenant is prevented from carrying on its
business in the Premises.
16. COMPLIANCE WITH REGULATIONS, ETC.:
Tenant covenants throughout the term at its expense to comply promptly
with all laws, codes, ordinances, administrative and court orders and
directives, rules and regulations which have the force of law (hereinafter
"Governmental Regulations"), whether now in effect or hereafter promulgated,
applicable to Tenant's use and occupancy of the Premises; provided, however,
that (i) Landlord represents that the Tenant's use and occupancy of the
Premises, and the Improvements and Tenant Improvements, comply or will comply,
as of the Commencement Date and thereafter, with all Governmental Regulations
and (ii) Tenant shall have the right to contest the applicability and/or
validity of any of the above so long as by reason of such action, the Premises
or the Improvements would not be in danger of forfeiture or loss.
17. CONDEMNATION:
A. If during the term of this Lease, all or a substantial part of the
Premises shall be taken by eminent domain, then at the option of the Tenant or
the Landlord the Lease shall terminate as of, and the rent shall be apportioned
to and xxxxx from and after, the date of taking, commensurate with the area so
taken and to the extent that the Tenant is prevented from carrying on its
business in the Premises and Tenant shall have no right to participate in any
award or damages for such taking (except as set forth in sub-paragraph D hereof)
and hereby assigns all of its right, title and interest therein to Landlord. For
purposes of this paragraph 17, "a substantial part of the Premises" shall mean a
taking of all or any portion of the Premises which renders
Tenant substantially unable to carry on its business on the Premises or use the
parking spaces which are part of the Premises in accordance with Paragraph 1.
B. If during the term of this Lease, less than a substantial part of the
Premises (as hereinbefore defined) shall be taken by eminent domain, this Lease
shall remain in full force and effect according to its terms; and Tenant shall
have no right to participate in any award or damages for such taking (except as
set forth in subparagraph D. hereof) and hereby assigns all of its right, title
and interest therein to Landlord, provided that Landlord shall at its expense
promptly make such repairs and improvements as shall be necessary to restore the
Premises to substantially the same efficiency as before the taking, but not
later than ninety (90) days after such taking in which case the Tenant may
terminate this Lease by written notice to the Landlord, which termination shall
take effect upon the giving of such notice.
C. For the purpose of this paragraph 17, "taken by eminent domain" or
"taking under the power of eminent domain" shall include a negotiated sale or
lease and transfer of possession to a condemning authority under bona fide
threat of condemnation for public use, and Landlord alone shall have the right
to negotiate with the condemning authority and conduct and settle all litigation
connected with the condemnation. As hereinabove used, the words "award of
damage" shall, in the event of such sale or settlement, include the purchase or
settlement price of any such negotiated transfer.
D. Nothing herein shall be deemed to prevent Tenant from claiming,
negotiating, and receiving from the condemning authority, if legally payable,
compensation for the taking of Tenant's own tangible property, improvements upon
the leased Premises constructed at Tenant's sole expense, and damages for
Tenant's loss of business, business interruption and/or removal and relocation.
Should any condemnation be effected without a cancellation of the Lease, there
shall be an appropriate reduction in rental.
E. The Landlord shall promptly notify the Tenant upon learning of any
eminent domain proceedings affecting the Premises. In any such
proceedings, the Landlord shall use its best efforts to ensure that the Tenant
shall have at least six (6) months after a taking of all or a substantial part
of the Premises to relocate to an alternative space.
18. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS:
After the occurrence of an Event of Default, Landlord shall, after
reasonable notice to Tenant (except in case of emergencies) have the right (but
not the duty) to enter the Premises, if necessary, to perform any covenant or
duty required of the Tenant by this Lease or by law, but the reasonable cost
thereof shall be deemed to be additional rent, and shall give the Landlord the
same rights and remedies as though the additional rent were part of the monthly
rent due the Landlord under this Lease.
19. INDEMNIFICATION OF LANDLORD:
Except with respect to claims arising from Landlord's act, omissions to
act, or negligence or that of its agents, servants or employees, including,
without limitation, Landlord's failure to make repairs required of it to be made
pursuant to this Lease or Landlord's construction of the Tenant Improvements,
Tenant covenants to indemnify and save Landlord harmless (to the extent not
reimbursed by insurance required by this Lease to be furnished by Tenant) from
any and all claims for liability of any nature whatever arising from any use,
occupancy, construction, repairs, or other work or activity done in, on or about
the Premises during the term or from any condition of the Premises or anything
thereon or therein during the term, or from any occurrence whatever in, on or
about the Premises during the term, including all Landlord's reasonable costs,
expenses and counsel fees in connection with any such claim.
20. DEFAULT PROVISIONS:
Upon the occurrence of an Event of Default, Landlord may elect to
immediately terminate this Lease by serving a written notice upon Tenant.
Each of the following events shall be deemed an Event of Default by Tenant
within the meaning of this Lease:
(1) the failure to pay any installment of Basic Rental or additional
rent when due and payable if such failure continues for ten (10) days after
written notice from the Landlord that the same are due;
(2) the failure to perform any of the other covenants or conditions
of this Lease on the part of Tenant to be performed within thirty (30) days
after notice from the Landlord of such failure to perform provided that if such
failure to perform is not susceptible to cure within such thirty (30) days then
so long as the Tenant commences such cure within thirty (30) days and diligently
pursues such cure, such failure to perform shall not be an Event of Default;
(3) the making of an assignment by Tenant for the benefit of its
creditors;
(4) the appointment of a receiver or trustee of all or part of
Tenant's property;
(5) the filing of a petition in bankruptcy by Tenant;
(6) the filing of a petition by or against Tenant for its
reorganization or for an arrangement under any bankruptcy law or other law; or
(7) the filing of or petition by Tenant to effect a composition or
an extension of time to pay its debts; provided that if an event referred to in
sections (4) and (6) above shall have been involuntary on the part of Tenant,
the Tenant shall have sixty (60) days to discharge the receiver or trustee or
dismiss the petition after the appointment or filing.
In the event that this Lease is terminated in the manner provided for in
this paragraph 20, or by court proceedings or otherwise, or in the event that
the Premises, or any part thereof, shall be abandoned by Tenant during the said
term, Landlord or Landlord's agents, servants or representatives may, at any
time after written notice to Tenant and the times set forth in this paragraph
20, reenter and resume possession of said Premises, or any part thereof, and
remove all persons and property therefrom, by any suitable action or proceeding
at law, without being
liable for any damages therefor. No reentry by Landlord shall be deemed to be an
acceptance of a surrender of this Lease.
The Landlord shall not have the right to distrain or the right to place a
lien in or on any of the property of the Tenant.
The Landlord, upon the happening of any of the events giving it the right
to annul and cancel this Lease, shall be entitled to the benefit of all of the
provisions of law not in conflict with this Lease for the speedy recovery of
lands and tenements under this Lease held over by the Tenant in Xxxxxx County,
Maryland that are now in force or may hereafter be enacted.
21. ADDITIONAL REMEDIES OF LANDLORD:
In the event that this Lease is terminated in the manner set forth in
Paragraph 20 because of the occurrence of an Event of Default, or if the
Premises shall be abandoned by Tenant during the term hereof, Landlord shall,
use its best efforts to relet the whole or any portion of said Premises for any
period equal to or greater or less than the remainder of the original term of
this Lease for a reasonable rent in relation to the then current market
conditions to any tenants which it may deem suitable and satisfactory, and for
any use and purposes which it may deem appropriate, but in no event shall
Landlord be under any obligation to relet the same premises for any purpose
which Landlord may regard as injurious to the Premises, or to any tenant which
Landlord, in the exercise of reasonable discretion shall deem to be
objectionable. In the event of such termination of this Lease because of the
occurrence of an Event of Default or if the Premises are abandoned, and whether
or not the Premises be relet, and whether this Lease be terminated or not,
Landlord shall be entitled to recover of shall be entitled to recover of Tenant,
and Tenant hereby agrees to pay to Landlord as damages, the following:
A. An amount equal to the amount of the rent reserved under this
Lease, less the rent, if any, collected by Landlord on reletting the Premises,
which shall be due and payable by Tenant to Landlord on the several days on
which the rent herein reserved would have become payable under this Lease.
B. In addition to the damages hereinbefore provided for in this
paragraph 21, an amount equal to the cost
(1) of placing the Premises in the condition in which Tenant has
agreed to surrender them to Landlord and
(2) of performing any other covenant herein contained which Tenant
has agreed to perform, other than the covenant to pay rent. The damages
mentioned in this subdivision B shall become immediately due and payable by
Tenant to Landlord upon the termination of this Lease.
Without any previous notice or demand, separate actions may be
maintained by Landlord against Tenant from time to time to recover any damages
which, at the commencement of any such action, have then or theretofore become
due and payable to Landlord under this paragraph 21, without waiting until the
end of the term of this Lease, providing that any such action shall include all
claims outstanding as of the date of the commencement of such action.
22. RIGHT TO ASSIGN AND SUBLEASE:
Tenant may not assign this Lease or sublet all or any portion of the Premises
without the prior written consent of Landlord, which consent will not be
unreasonably withheld or delayed, provided that in the event of any such
assignment or subletting with consent, Tenant shall remain liable for the
performance of Tenant's obligations during the term hereof and provided further
that if the Landlord requires that any rental received by Tenant in excess of
the rent reserved under this Lease or any payment made to Tenant in
consideration of such assignment or subletting shall be paid over to Landlord as
additional rent, then the Tenant shall be relieved of any monetary liability to
the Landlord with respect to this Lease or the Premises to the extent of such
excess of the rent paid to the Landlord. Notwithstanding the foregoing, the
Tenant may assign this Lease or sublease all, or any portion, of the Premises to
a parent, subsidiary or affiliated entity of the Tenant or to any entity into
which the Tenant may merge or be converted to without the consent of the
Landlord (hereinafter collectively referred to as "Affiliates").
23. INSPECTION By LANDLORD, ETC.:
Landlord and its agents shall have the right upon reasonable prior
notice and at all reasonable times during the term to enter the Premises for the
purpose of performing the maintenance and repairs required of it by this Lease
and for the purpose of inspecting the same and, during the last ninety (90) days
of the term, to show both the interior and exterior of the Premises to
prospective tenants or purchasers and to place "For Rent" and/or "For Sale"
signs thereon, but not on or in the vicinity of any public entrance to the
Premises.
24. ASSIGNMENT OF LANDLORD'S INTEREST:
If Landlord should ever assign this Lease or the rents hereunder to
a creditor as security for a debt, Tenant shall, after notice of such assignment
and upon demand by Landlord or the assignee, pay all sums thereafter becoming
due Landlord hereunder to the assignee (from and after the time Tenant is
furnished with such assignee's address) and furnish such evidence of insurance
coverages required hereunder as the lender may reasonably require so as to
protect the assignee's interest as it may appear and furnish such assurances to
the assignee.
25. SUBORDINATION:
This Lease shall be subject and subordinate to the lien of any
present or future mortgage or mortgages upon the Premises or any property of
which the Premises are a part irrespective of the time of execution or the time
of recording of any such mortgage or mortgages provided that in the event of
foreclosure or other action taken under any mortgage by the holders thereof,
this Lease and the rights of Tenant hereunder shall not be disturbed but shall
continue in full force and effect so long as there has not occurred an Event of
Default. Landlord shall use its best effort to secure a non-disturbance
undertaking from the existing Mortgagee. The word "mortgage" as used herein
includes mortgages, deeds of trust or other similar instruments
and modifications, extensions, renewals and replacements thereof and any and all
advances thereunder.
26. NON-DISTURBANCE:
Landlord covenants and warrants to Tenant that Tenant on paying the
rent provided for in this Lease and performing its covenants herein set forth,
shall peaceably and quietly have, hold and enjoy the Premises and all
appurtenances thereon during the full term of this Lease.
27. ATTORNMENT
In the event the Premises are sold at any foreclosure sale or sales,
by virtue of any judicial proceedings or otherwise, this Lease shall continue in
full force and effect and Tenant agrees upon request to attorn to and
acknowledge the foreclosure purchaser or purchasers at such sale as Landlord
hereunder.
28. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
The Tenant shall, promptly at the request of the Landlord or the
holder of any Mortgage (herein referred to as "Mortgagee"), execute, enseal,
acknowledge and deliver such further instrument or instruments substantially in
the form attached hereto as Exhibit G:
a) evidencing such subordination as the Landlord or such Mortgagee
deems necessary or desirable, and
b) at such Mortgagee's request, attorning to such Mortgagee,
provided that, as to subparagraphs a) and b) hereof, such Mortgagee agrees
with the Tenant that such Mortgagee will, in the event of a foreclosure of
any such mortgage or deed of trust (or termination of any such ground
lease) take no action to interfere with the Tenant's right here-under,
except on the occurrence of an Event of Default.
29. MORTGAGEE PROTECTION CLAUSE:
Tenant agrees to give any Mortgagees and/or Trust Deed Holders, by
registered mail, a copy of any notice of default served upon the Landlord,
provided that prior to such notice, Tenant has been notified in writing (by way
of Notice of Assignment of Rents and Leases, or otherwise) of the addresses of
such Mortgagees and/or Trust Deed Holders. Tenant further agrees that if
Landlord shall have failed to cure such default, then the Mortgagees and/or
Trust Deed Holders shall have thirty (30) days from the date of receiving notice
within which to cure such default or if such default cannot be cured within that
time, then such additional time as may be necessary if within such thirty (30)
days any Mortgagee and/or Trust Deed Holder has commenced and is diligently
pursuing the remedies necessary to cure such default (including but not limited
to commencement of foreclosure proceedings if necessary to effect such cure), in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
30. TENANT HOLDING OVER:
In the event that Tenant holds over at the expiration of the
original term of this Lease or at the earlier termination thereof, Landlord
shall be entitled to all the remedies now or hereafter in effect in Xxxxxx
County, Maryland relating to the speedy recovery of possession of lands and
damages for wrongful detention.
Notwithstanding the foregoing sub-paragraph, any holding over after
the expiration of the term hereof, without the written consent of Landlord shall
be construed to be a tenancy from month to month at one and one-half (1 1/2)
times the monthly rent hereinbefore specified, and shall otherwise be on the
terms and conditions hereinbefore specified. Such tenancy from month to month
shall continue until either party shall give at least thirty (30) days notice in
writing to the other terminating such tenancy.
31. UTILITY LINES AND FACILITIES:
Landlord reserves the right to place (or permit any other tenant in
its building so to place) in, over, below and upon the Premises (in such manner
as to not interfere with Tenant's use of the
Premises or reduce the leasable square footage of the Premises), utility lines,
conduits, pipes, tunneling and the like to service the Premises and any other
promises in the building and to use, replace, repair and maintain (or permit any
other tenant so to do) such utility lines, conduits, pipes, tunneling and the
like, in, over, below and upon the Premises in such manner as will not interfere
with Tenant's use and enjoyment thereof, provided that Landlord shall use its
best efforts to see that such work does not interfere with the ongoing business
and operations of Tenant, that such work not take place (except in case of
emergencies) during normal business hours, that such work shall be done
expeditiously and in a workmanlike manner, and further that the Premises shall,
upon conclusion of the work, be restored to the same conditions as they were
prior to the commencement of the work.
32. HAZARDOUS MATERIALS
A. Tenant shall not cause or permit any Hazardous Material to be
brought upon, kept or used in or about the Premises by Tenant, its agents,
employees, contractors or invitees, except for such Hazardous Material as is
necessary or useful to Tenant's business.
B. Any Hazardous Material permitted on the Premises as provided in
Paragraph 32.A. above, and all containers therefore, shall be used, kept, stored
and disposed of in a manner that complies with all Federal, State and local laws
or regulations applicable to any such Hazardous Material.
C. Tenant shall not discharge, leak or emit, or permit to be
discharged, leaked or emitted, any material into the atmosphere, ground, sewer
system or any body of water in violation of any applicable Governmental
Regulations as defined in Paragraph 16.
D. At the commencement of each Lease Year, upon request Tenant shall
disclose, to Landlord the names and approximate amounts of all Hazardous
Material which Tenant intends to store, use or dispose of on the Premises in the
coming Lease Year. In addition, at the commencement of each Lease Year,
beginning with the second Lease Year, Tenant shall disclose to Landlord, upon
request the names and amounts
of all Hazardous Materials which were actually used, stored or disposed of on
the Premises if such materials were not previously identified to Landlord at the
commencement of the previous Lease Year.
E. As used herein, the term "Hazardous Material" means (a) any
"hazardous waste" as defined by the Resource Conservation and Recovery Act of
1976, as amended from time to time, and regulations promulgated thereunder; (b)
any "hazardous substance" as defined by the Comprehensive Environmental
Response, compensation and Liability Act of 1980, as amended from time to time,
and regulations promulgated thereunder; (c) any 110il, petroleum products, and
their by-products"; and (d) any substance which is or becomes regulated by any
Federal, State or local governmental authority.
F. Tenant hereby agrees that it shall be fully liable for all costs
and expenses related to the use, storage and disposal of Hazardous Material kept
on the Premises by the Tenant, and the Tenant shall give immediate notice to the
Landlord of any violation or potential violation 'of the provisions of Paragraph
32.B. above. Tenant shall defend, indemnify and hold harmless Landlord (unless
due to Landlord's negligence), f roin and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs, or expenses
(including, without limitation, reasonable attorney and consultant fees, court
costs and litigation expenses) of whatever kind or nature, known or unknown,
contingent or otherwise, arising out of or in any way related to (a) the
presence, disposal, release, or threatened release of any such Hazardous
Material which is on, from, or affecting the soil, water, vegetation, buildings,
personal property, persons, animals, or otherwise; (b) any personal injury
(including wrongful death) or property damage (real or personal) arising out of
or related to such Hazardous Material; (c) any lawsuit brought or threatened,
settlement reached or government order relating to such Hazardous Material;
and/or (d) any violation of any laws applicable thereto. The provisions of this
Paragraph 32.F. shall be in addition to any other obligations and liabilities
Tenant may have to Landlord at law or equity and shall survive the transactions
contemplated herein and shall survive the termination of this Lease.
33. SPRINKLER:
Landlord represents that a sprinkler system designed to meet NFPA
Ordinary Hazard Group 3 has been installed in the building. Any additional
sprinkler work, i.e., in rack sprinklers, additional heads, etc., required to
meet any other NFPA standards or county requirements to satisfy tenant's
material classification, shall be at the sole cost and expense of the Tenant and
shall be installed by the Landlord prior to the Commencement Date.
34. SIGNS:
Tenant shall be permitted at the entrance to the Premises either to
place a sign (see rules and regulations section for Junction Business Park which
are set forth in Rider #1 to this Lease) on the building facade, however not on
the metal portion of the building, or to erect a free-standing sign.
Furthermore, Landlord agrees to cooperate with Tenant in any necessary sign
permit applications. Signage for other tenants in the building shall be limited
to their respective entry doors.
35. END OF TERM:
Upon the expiration or other termination of the term of this lease,
Tenant shall quit the Premises and surrender same to Landlord, broom clean, in
the same order and condition as at the Commencement Date, ordinary wear and tear
and damage or destruction by f ire or other casualty or the elements or any
other cause beyond Tenant I s reasonable control excepted and Tenant shall
remove all of its property.
36. SUCCESSORS AND ASSIGNS:
Except as hereinabove expressly otherwise provided, this Lease shall
bind and inure to the benefit of the parties hereto and their respective
successors and assigns.
37. NOTICES:
All notices to Tenant under this lease shall be in writing
conclusively presumed to have been delivered, one day after mailing by United
States mail, first class, certified or registered, and postage prepaid,
addressed to Tenant, at the Premises or to such other address as Tenant may in
writing from time to time designate, with a copy to Xxxxxx X. Xxxxxxxx, Esquire,
Xxxxx, Xxxxxxx & Xxxxxxxxx, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. All
notices to Landlord hereunder shall be in writing and conclusively presumed to
have been delivered one day after mailing by United States mail, first class,
certified or registered, and postage prepaid, addressed to Landlord, at New
Castle Corporate Commons, 00 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx
00000 or to such other address as Landlord may in writing from time to time
designate by notice hereunder to the Tenant.
38. TENANT ESTOPPEL CERTIFICATE:
From time to time during the term of this Lease Tenant agrees to
submit to Landlord's lender, within thirty (30) days following written demand
therefor, a certificate substantially in the form attached hereto as Exhibit H
and modified to such extent as is necessary to make the statements therein true
and accurate.
39. CAPTIONS AND HEADINGS:
The captions and headings throughout this Lease are for convenience
and reference only, and the words contained therein shall in no way be hold or
deemed to define, limit, describe, ex plain, modify, amplify or add to the
interpretation, construction or meaning of any provision of or the scope or
intent of this Lease nor in any way affect this Lease.
40. SEVERABILITY:
A. It is agreed that, for the purpose of any suit brought or based
on this agreement, this agreement shall be construed to be a divisible contract,
to the end that successive actions may be maintained on said agreement as
successive periodic sums shall mature
under said agreement, providing that any such action shall include all claims
outstanding as of the date of the commencement of such action.
B. If any term, clause or provision of this lease is declared
invalid by a court of competent jurisdiction, the validity of the remainder of
the Lease shall not be affected thereby but shall remain in full force and
effect.
41. NON-WAIVER OF FUTURE ENFORCEMENT:
It is agreed that the failure of the Landlord to insist in any one
or more instances upon a strict performance of any covenant of this Lease or to
exercise any right herein contained shall not be construed as a waiver or
relinquishment for the future of such covenant or right, but the same shall
remain in full force and effect, unless the contrary is expressed in writing
by the Landlord.
42. LEASING RESTRICTIONS:
A. Landlord shall not lease any space in the Improvements to, nor
permit the occupancy of any space in the Improvements by, any company engaged in
the design, manufacture or sale of modems or multiplexes used in data
communications. By way of illustration and not of limitation such companies
shall include:
AT&T/Paradyne
Timeplex, a division of Unisys
Network Equipment Technologies
Digital Communications Associates
Newbridge Networks
General Datacommunications
Corp. Codex, a division of Motorola
UDS, a division of Motorola
Avanti
Racal Milqo, a division of Racal Telecommunications Group
Telematics
3 Com Corp.
Novell Inc.
Xxxxxxxx Bass, a division of Tandem Computer
For purposes of this Section 43 A. the term "company" shall refer only to the
particular division of a company engaged in the design, manufacturer or sale of
modems or multiplexes used in data communications.
B. Landlord shall require in any future lease of a portion of the
Improvements, that such lease may be subject to termination by the Landlord if
the tenant under such lease utilizes radio waves in such a manner that they may
cause radio frequency interference with Tenant's equipment on the Premises.
Landlord shall expeditiously enforce such restriction upon notice from Tenant
that such interference is occurring or, alternatively, shall expeditiously take
steps to shield the Premises so that the interference is eliminated. If Landlord
does not act expeditiously, as set forth above, Tenant may shield the Premises
from such interference at Landlord's expense.
C. Landlord shall provide in any future lease of a portion of the
Improvements that such lease may be subject to termination by the Landlord if
the tenant under such lease utilizes the leased area in such a manner as to
interfere with Tenant's use of the Premises by reason of noise, odor, vibration
or emissions emanating from such leased area. Landlord shall expeditiously
enforce such provision upon notice from Tenant that such interference is
occurring.
43. RIDERS:
Attached hereto and incorporated into this Lease are Riders numbered 1
through 3.
AS WITNESS the hands and seals of the parties hereto the day and year
first above written.
ATTEST/WITNESS: CHIPPEWA LIMITED PARTNERSHIP
A Maryland Limited Partnership
Landlord
By:
GeneralPartner/Landlord
CASE/Datatel, Inc.
Tenant
By:
VP Finance and Operations
RIDER #1 TO LEASE AGREEMENT
JUNCTION BUSINESS
RULES AND REGULATIONS
APPLICABLE TO THIS LEASE AGREEMENT
1. SIGNAGE:
PERMANENT SIGNAGE: Exterior signage in 0000 Xxxxxxxx Xxxxx. Xxxxxxxxx Xxxxxxxx,
Xxxxxxxx shall be for identification only and may not be treated as an
advertising device. Signage text is limited to company name and/or logo. All
signs must be submitted to Landlord for approval prior to installation, which
approval shall not be unreasonably withheld or delayed.
A. PERMITTED SIGN LOCATIONS
Unless otherwise noted in site specific criteria, each multitenant building will
have one free-standing sign with the building or address only at a point near
the building entrance, and a building mounted tenant identification system.
Notwithstanding the foregoing, only the Tenant may have a sign visible from the
exterior of the building, as further provided in Paragraph 34 of the Lease.
B. PERMITTED SIGN TYPES
Free Standing Sign: maximum height is four feet above grade.
Sign shall be substantial and constructed of durable materials (wood signs will
not be allowed).
Sign must be mounted on a substantial base.
C. BUILDING MOUNTED SIGN
Sign location on building must be compatible with the architectural design of
the building.
No signs may extend above the roof or parapet line of the building.
Building mounted signs must be individual letters.
The scale of the building shall determine the permitted letter size.
Illumination, if desired, may be internal through a translucent letter face or
opaque letters projected lightly off the wall and back lit from a source
concealed within the letter.
D. PERMITTED SIGN COLORS
Color for signs shall be limited to one color for the background. Where an
additional color is necessary because it is a part of the firm's logo, this will
be considered.
The background color MUST be darker than the message and graphics.
E. PROHIBITED SIGNS INCLUDE THE FOLLOWING:
No sign may be erected which does not have the written approval of Landlord,
which approval shall not unreasonably withheld or delayed. No sign may be
erected without the necessary Xxxxxx County approvals. No flashing or moving
signs will be permitted. No exposed neon or other exposed light source will be
permitted. No signs using vacuum formed plastic letters will be permitted. No
signs using applied wood letters will be permitted. No permanent building
identification signs will be permitted where letters are painted in the sign
face and do not project.
2. No awnings, curtains, blinds, shades or screens shall be attached to or hung
in, or used in connection with any window or door of the Premises without the
prior consent of the Landlord and including approval by the Landlord of the
quality, type, design, color and manner attached.
3. Tenant agrees that its use of electrical current shall never exceed the
capacity of existing feeders, risers or wiring installation. Any additional
electrical wiring shall be done by Landlord's electrician or supervised by such
electrician, and Tenant shall bear the expense of such additional materials and
installation.
4. The Tenant shall not do or permit to be done in or about the Premises or the
Building anything which shall increase the rate of insurance on the Building or
its property, or obstruct or interfere with the rights of other tenants of
Landlord or annoy them in any way, including but not limited to, using any
musical instrument, making loud or unseemly noises, or singing, etc., nor use
the Premises for sleeping, lodging, or cooking by any person deck) at any time
except with permission of Landlord. Tenant will be permitted to use for its own
employees within the Premises conventional coffee makers. No part of said
Building of Premises shall be used for gambling, immoral or other unlawful
purposes. No intoxicating beverage shall be sold in said Building or the
Premises without prior written consent of the Landlord. No area outside of the
Premises shall be used for storage purposes at any time.
5. No birds or animals of any kind shall be brought into said Building or kept
in or about the Premises.
6. The sidewalks, entrances, passages, corridors, halls, elevators, and
stairways in the Buildings shall not be obstructed by Tenant or used for any
purposes other than those for which same were intended as ingress and egress. No
windows, floors, or skylights that reflect or admit light into the Building
shall be covered or obstructed by Tenant. Toilets, wash basins, and sinks shall
not be used for any purpose other than those for which they were constructed,
and no sweeping, rubbish, or other obstructing substances shall be thrown
therein. Any damages resulting to them, or to heating apparatus, from misuse, by
Tenant or its employees, shall be borne by Tenant.
7. Only one key for each office in the Premises will be furnished Tenant without
charge. No additional lock, latch or bolt of any kind shall be placed upon any
exterior door nor shall any changes be made in existing locks or mechanisms
thereof without giving Landlord a copy of any new keys thereof. At the
termination of the Lease, Tenant shall return to Landlord all keys furnished to
Tenant by Landlord, or otherwise procured by Tenant, and in the event of loss of
any keys so furnished, Tenant shall pay to Landlord the cost thereof.
8. Tenant shall not cause or permit any unusual or objectionable gases, liquids
or odors to be produced upon or permeate from the promises, and no flammable,
combustible or explosive fluid, chemical or substances except gas and
electricity for lighting the Premises shall be brought into the Building, except
for those substances necessary to the business of Tenant.
9. No painting shall be done, nor shall any alterations be made, to any part of
the Building by putting up or changing any partitions, doors or windows, nor
shall there be any nailing, boring or screwing into the woodwork or plastering
(except for normal wall hangings), nor shall any connection be made to the
electric wires or gas or electric fixtures, without the consent in writing on
each occasion of Landlord. All glass, locks and trimmings in or upon the doors
and windows of the Building shall be kept whole and in good repair. Tenant shall
not injure, overload or deface the Building, the woodwork or the walls of the
Premises, nor carry upon the Premises any noisome, noxious, noisy or offensive
business.
10. Tenant and occupants shall observe and obey all parking and traffic
regulations as imposed by Landlord on the lot on which the Building is located.
Landlord in all cases retains the power to designate "no parking" zones, traffic
right-of-ways, and general parking area procedures. Failure of Tenant to comply
with such regulations constitutes a violation of the Lease.
11. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular Tenant, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
Tenant, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the Tenants of the Building.
12. 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 terms, covenants,
agreements and conditions of the Lease.
13. Landlord reserves the right to make such other and reasonable Rules and
Regulations as in its judgment may from time to time be needed for the safety,
care and cleanliness of the Building, and for the preservation of good order
therein.
RIDER #2 TO LEASE AGREEMENT
OPTION TO RENEW
THIS RIDER is attached to and forms a part of acertain Lease dated Oct 4, 1989
between CHIPPEWA LIMITED PARTNERSHIP, a Maryland Limited Partnership
(hereinafter called "Landlord"), and CASE/Xxxxxxx.Xxx, (hereinafter called
"Tenant").
Tenant shall have the option to renew this Lease for an additional
five (5) year term upon giving written notice of intention to renew to Landlord
not less than 150 days prior to the expiration of the original term hereof. All
the terms and conditions of this Lease shall remain in full force and effect
during the renewal term except that there shall be no further right of renewal,
and the Basic Rental during the renewal shall be equal to Fifty Percent (50%) of
the percentage increase in the Consumer Price Index over the Base Year
multiplied by One Hundred Percent (100%) of the Basic Rental for the initial
lease term herein. it is agreed that for each compounded year the Consumer Price
Index shall not exceed Six Percent (6%), and that the Basic Rental for the
renewal term shall not exceed Nine and 27/100 Dollars ($9.27) per leasable
square foot. This increase shall be determined in accordance with the following:
1. Landlord shall compute the increase, if any, in the cost of
living, using as the basis of such computation the average for "All Items" shown
on the Revised United States City (Washington Region) Consumer Price Index for
Urban Wage Earners and Clerical Workers (including single workers) as
promulgated by the Bureau of Labor Statistics of the United States Department of
Labor using the year 1967 as the base of 100 (hereinafter called the "Index").
2. The Index number in the column for "All Items" (Washington Region), for the
month this Lease is effective shall be the "Base Index Number" and the
corresponding Index number for the last published month immediately preceding
the date of renewal shall be the current Index.
Each option granted to Tenant in this Lease is personal to Tenant or
Affiliates and may not be exercised or be assigned, voluntarily, by or to any
person or entity other than Tenant or Affiliates without prior written consent
of Landlord, which shall not be unreasonably withheld or delayed. Option to
renew does not extend to any subtenant, except Affiliates.
AS WITNESS the hands and seals of the parties hereto the day and
year first above written.
ATTEST/WITNESS: CHIPPEWA LIMITED PARTNERSHIP
A Maryland Limited Partnership
By
General Partner/Landlord
CASE/Datatel. Inc.
Tenant
Director of Manufacturing By:
VP Finance and Operations
RIDER 3 TO LEASE AGREEMENT
RIGHTS OF EXPANSION
THIS RIDER is attached to and forms a part of a certain Lease dated Oct 4, 1989
between CHIPPEWA UNITED PARTNERSHIP, a Maryland Limited Partnership (hereinafter
called "Landlord"), and CASE/Datatel, Inc. (hereinafter called "Tenant").
At any time during the term of this Lease, it is understood and
agreed that Tenant shall have the Right of First offering on available space
within 0000 Xxxxxxxx Xxxxx. Such offering shall be on the same terms and
conditions as are then being offered for similar space within the building.
should another prospective tenant express a bona fide interest in leasing said
space, Landlord shall notify Tenant in writing in accordance with the provisions
of Paragraph 37. Tenant shall then have ten (10) working days to respond in
writing; the contents of the response to be in the format of a Letter of Intent
to lease said space. If Tenant fails to respond as prescribed, Tenant forfeits
the right to lease the space. This Right of First Offering shall be continuous
for each prospective tenant expressing a bona fide interest in leasing said
space until a Lease is ultimately executed.
Should Tenant desire to lease any available space within 0000
Xxxxxxxx Xxxxx, without there being another prospective tenant expressing a bona
fide interest in leasing said space, then the fair market rent for said space
shall be as determined (a) by mutual agreement of Landlord and Tenant, (b) by a
qualified M.A.I. appraiser selected by Landlord and Tenant, or (c) if Landlord
and Tenant cannot agree upon the fair market rent or the appraiser, Landlord and
Tenant shall each select an independent M.A.I. appraiser active in the area
where the premises are located and the fair market rent shall be the average of
the two appraisals provided the appraisals are within Five Percent (5%) of each
other, If the two appraisals are not within Five Percent (5%) of each other,
then the two appraisers shall select a third appraiser and the average of the
three appraisals shall be conclusive. Landlord and Tenant shall share equally
the fees and costs of the single appraiser selected by mutual agreement or the
third appraiser selected if necessary. In the case of two appraisers, Landlord
and Tenant shall each pay the fees and costs of their respective selected
appraiser.
These Rights of Expansion granted to Tenant are personal to Tenant
or Affiliates and may not be exercised or be assigned, voluntarily, by or to any
person or entity other than Tenant or
Affiliates without prior written consent of Landlord, which shall not be
unreasonably withheld or delayed. These Rights of Expansion do not extend to any
subtenant, except Affiliates.
AS WITNESS the hands and seals of the parties hereto the day and year
first above written.
ATTEST/WITNESS: CHIPPEWA LIMITED PARTNERSHIP
Landlord
By:
Landlord/General Partner
CASE/Datatel, Inc.
Tenant
By:
Tenant
Exhibit A
[Building Diagram left blank]
BUILDING SIZE one story, 97,000 sq. ft. SPRINKLERS Wet
UNIT SIZE Units from 4,753 to 97,000 OFFICE AREA To suit
sq. ft. (bay sizes 8,000 sq. ft.) ELECTRIC 1,600
amps, 4 wire, 3 phase,
Baltimore Gas & Electric
LOT SIZE 6.3 Acres
CONSTRUCTION Masonry and steel PARKING 188 spaces
TRUSS HEIGHT 20' Clear ZONING Industrial
LIGHTING Metallialide HEATING AND Gas unit heaters
AIR CONDITIONING
and energy efficient
efficient heat pumps
LOADING FACILITIES Tailgate loading
WATER HowardCounly LEASE TERM 315 years
SEWER HowardCounty
XXXXX XXXX XxXXXXXXX ASSOCIATES, INC.
Builders and Developers
Xxxxx 000 0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Exhibit B
[Diagram of facility at Xxxxxxxx Xxxxx]
Xxxxxxxx Xxxxxxxx Xxxx
X.X. 0 and Route 32
Xxxxxx County, Maryland
For further information call:
Xxxxx Xxxxxxxx or Xxxx Xxxxxx,
(301) 796-8866
1-95 2 miles
1-695 (Baltimore Beltway) 13 miles
0-000 (Xxxx xxxxxx) 00 xxxxx
Xxxxx 00 0 miles
BWl Airport 9 miles
Port of Baltimore 19 xxxxx
Xxxxxx County General Hospital 9 miles
Columbia, Maryland 9 miles
NSA 1.8 miles
XXXXX XXXX WCOWELL ASSOCIATES,INC.
Builders and Developers
Suite 100 n s 0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Rev.9/21/89
EXHIBIT C-1
CASE/Datatel
TENANT IMPROVEMENT SPECIFICATIONS
PARTITIONING
1. Demising wall (146 LF) is constructed to underside of roof deck using 3
5/811 metal studs with 5/811 fire rated gypsum board. Sound insulation is
installed to 101-011 above finished floor.
2. Interior partitions (2,400 LF) are constructed to suspended ceiling using
3 5/811 metal studs with 1/211 gypsum board. sound insulation is provided
for each bathroom and conference room.
3. Office/Manufacturing separation (146 LF) wall is constructed to the roof
deck using metal studs with 1/211 gypsum board.
4. Ceiling in office area to be constructed using a suspended ceiling grid
with 21 X 41 white lay-in fissured nondirectional acoustical ceiling tile.
Floating ceilings throughout.
5. All frames are 18g hollow metal.
6. A. Office - hardware consists of seventy (70) passage sets, and ten (10)
locksets. All hardware to be brushed chrome.
B. Manufacturing - install thirteen (13) double doors and five (5) single
doors with passage sets.
7. Kitchen/Lunch/Engineering Break areas to have six (6) linear feet of base
cabinets to be selected from Xxxxx Xxxx samples.
8. A. Install five hundred Sixteen (516 LF) of 84" drywall in manufacturing
area.
B. Install two Hundred Forty-Three (243 LF) of 144" drywall.
9. Area above block wall in manufacturing area to be covered with gypsum
board to 101 above block wall.
10. Include 1/2" plywood in all offices designated as 'MI.
11. 2'- 6" Side light glass panels at 41 doors with black blinds.
12. Block enclosure for air compressor.
13. 84" Drywall enclosure with door and 411 curb in manufacturing for storage.
14. Interior glass as shown on print.
15. Install one revolving door in photo lab.
16. Install weather break with ceiling around shipping dock.
17. Construct room for ATE pumps with ceiling per drawings.
18. Construct weather break in front of manufacturing using glass
construction.
HEATING VENTILATING AND AIR CONDITIONING
1. Entire office space to be heated and cooled using a roof mounted gas fired
package unit providing a 68 degrees rise from 0 degrees outdoor temperature in
office area. Units to be individually controlled. (Must cool to 78 degrees at 95
degrees fahrenheit outside temperature.)
2. Bathrooms to be exhausted through the roof.
3. Conference room to have sound insulated exhaust vented into plenum.
4. Upgrade HVAC per equipment list:
1-5 Ton roof top unit in demo room
1-5 Ton roof top unit in system lab
2-9 1/2 Ton Liebert units in computer room
1-1 Ton roof top unit in plotter room
5. Venting
Wave solder /cleaning machine
Developer room
Plotter room
Packing area
ATE Pump room
Compressor room
FLOOR COVERING
1. Entire office area, except bathrooms, lunchroom, and storage area, to
receive Xxxxxxxx glue down carpet.
2. Bathrooms, lunch area, and storage to receive vinyl composition tile.
3. Colors for carpet cove base, and tile to be selected from landlord's
samples.
4. Entire office area to receive four inch vinyl cove base.
5. Entire manufacturing area to receive building standard vinyl composition
tile.
6. Upgrade carpet in demo room, large conference room at lobby and reception
area.
WALL COVERING
1. Entire office area to receive two coats of flat latex paint. Bathrooms and
lunch area to have semi-gloss latex enamel.
2. Colors to be selected from Xxxxx color chart.
3. All doors and frames to be painted semi-gloss black.
4. Under side of deck in manufacturing area to be spray painted, which
includes: deck, joists, and columns.
5. Drywall mounted atop the block wall in manufacturing area to receive two
coats of flat latex paint.
SPRINKLER
1. Entire area to be sprinklered at suspended ceiling to meet Xxxxxx County
life safety code.
2. Manufacturing to have sprinkler protection at roof deck to
19. Install windows in knock out panels in rear of building per drawings.
PLUMBING
1. Men's and women's bathrooms to include sink, toilet, grab bar, mirror, and
paper towel dispenser. Bathrooms to meet Xxxxxx County code for handicap
access and be sized to accommodate one Hundred (100) men and One Hundred
(100) women.
2. Cafeteria and kitchen and Engineering Break areas to have kitchen type
sink with hot and cold water.
3. Water heater sized to accommodate fixture count.
4. One shower room.
5. Drinking fountain at each rest room.
6. Water supply and floor drain to photo development room located in
Engineering.
ELECTRICAL
1. CASE/Datatel to have a One Thousand Six Hundred (1,600) amp 120/208 volt 3
phase,4 wire electrical service.
2. Five Hundred Forty-Six (546) 2 X 4 lay-in four tube florescent light
fixtures to give seventy (70) foot candles at desk height.
3. Three Hundred Sixty (360) standard 120 volt duplex receptacles in the
office area, to be located by CASE/Datatel.
4. Connect all equipment per list.
5. Single pole and three-way switching to accommodate final layout and
satisfy Xxxxxx County code.
6. All exit and emergency lighting to meet Xxxxxx County Code.
7. Wire computer room with UPS (one circuit for plotter, one circuit for
system assurance.) NOTE: UPS System by Tenant. Wire three (3) circuits to
system assurance and one (1) circuit to plotter room.
8. Power to Xxxxxxx offices are included.
9. Paging system allowance $10,000.
10. Lighting in manufacturing area as follows:
- One Hundred (100) foot candles for assembly using high output 96"
strip florescent fixtures.
- Fifty (50) foot candles for warehouse using 96" strip florescent
fixtures.
11. Heating elements for burn-in room (60 degrees centigrade)
12. Seventy (70) power drops in manufacturing mounted at 11'-0" A.F.F. Twenty
(20) dedicated circuits in manufacturing.
13. (181 LF) of track lighting with 46 fixtures located in Engineering.
14. Safety lights in dark rooms.
EXHIBIT "H"
TENANT ESTOPPEL CERTIFICATE
Lessor:
Lessee:
Identification of Leased Premises:
Approximately square feet within a warehouse and office building on
land known as _____________________________________________________________, as
more fully set forth in the lease.
Date of original Lease:
Date(s) of any amendments:
The undersigned, the Tenant named above of the premises identified
above (the "Premises") to induce (The "Lender") to make a loan to Landlord
hereby certifies to Lender the following:
1. The undersigned has accepted and is in possession of and occupies
the Premises under the Lease, which is in full force and effect. The initial
term of the Lease commenced on , 198 .
2. There have been no modifications or changes in the Lease, except
by those amendments listed above.
3. The undersigned is paying the full lease rental, which on the
rental payment due in __________________________, 19 is basic minimum rent per
month, and is also paying its proportionate share (______%) of real estate
taxes, insurance premiums and expenses of snow removal, parking lot maintenance
and grass cutting over Base Year.
4. No rent or other sum payable under the Lease has been paid for
more than thirty days in advance of its due date.
5. To the knowledge of Tenant, the Landlord is not in default under
the Lease and the undersigned has no defense, set-off or counterclaim against
the Landlord under the Lease or otherwise.
6. The undersigned has not assigned, mortgaged or encumbered the
Tenant's interest under the Lease.
7. Tenant acknowledges receipt of notice that all of the Landlord's
interest in the Lease has been assigned to Lender as further security for one or
more loans to Landlord.
8. These statements, agreements, representations and
acknowledgements shall bind the undersigned, its successors and assigns and the
undersigned shall deliver a copy hereof to any assignee of its interest in the
Lease.
IN WITNESS WHEREOF, the undersigned has caused this Estoppel
Certificate to be duly executed this day of -, 19
ATTEST
(Name of Lessee)
By:
meet NFPA Ordinary Hazard Group 3.
3. Halon System with sprinkler back-up in computer room (approximately 986
square feet).
4. Install fire detection per county codes using smoke detectors and/or Pull
Boxes. Sprinkler monitoring is part of the shell construction.
MISCELLANEOUS
1. One (1) 10 X 10 overhead door at 48" dock height.
2. One (1) 10 X 10 overhead door at 30" dock height.
3. All permits and applications by Xxxxx Xxxx.
4. Entire space to be cleaned and ready for occupancy.
5. Raised floor in computer room by Xxxx Access Floors.
6. Trash compactor pad and opening per drawing. (Compactor by Tenant).
7. One (1) manually operated dock leveler.
8. Compressed air distribution system (compressor by Tenant) including
thirty-five (35) compressed air drops. (Enclosed in equipment room and
vented.) Male disconnects by Tenant. Female disconnects by Landlord
mounted at 11" - 0" A.F.F.
9. Reception to include per construction drawings attached as Exhibit C-2:
Glass foyer entrance
Special ceiling with eighteen (18) reception lobby down lights
Mirrored walls
Upgraded carpets
Green LED clock
Reception desk (allowance $2,500) to include shelf to enclose video
monitors.
Power and communications must be supplied via a trough
10. Install fencing on rear of property to screen truck yard.
11. A 20" X 30" pressure treated wooden deck with side rails and two sets of
steps.
12. Provide sign on building (Allowance $7,500)
13. Provide exterior lights for employee safety.
EXHIBIT "D"
Landlord shall assign to Tenant the following warranties relating to
Tenant Improvements:
1. One (1) year warranty on the full HVAC system including all parts
and labor.
2. Four (4) year warranty on all compressors for the HVAC system to
include parts only.
EXHIBIT "E"
The following are HVAC maintenance contractors satisfactory to Landlord:
1. Xxxxx Xxxx Development, Inc.
2. Central Air Conditioning Contractors, Inc.
3. Sagamore Heating and Air Conditioning, Inc.
4. X.X. Xxxxxxxx, Inc.
5. Commercial Air, Inc.
EXHIBIT "F"
The following work will be required in accordance with the
maintenance contract required in the attached Lease under the Paragraph entitled
"Repairs and Maintenance".
1. Check performance of all major components.
2. Lubricate moving parts as required.
3. Check refrigerant charges (during cooling season).
4. Inspect for oil and refrigerant leaks.
5. Check operating and safety controls.
6. Check pressures and temperatures.
7. Inspect condensers.
8. Inspect fans, motors and starters.
9. Tighten electrical connections at equipment.
10. Test amperages and voltages.
11. Check belts and drives.
12. Change oil and filters, or dryers, as required (at least four
times per year).
13. Check temperature on control system.
14. Thoroughly inspect heat exchanger.
AMENDMENT NO. 2 TO LEASE AGREEMENT
THIS AMENDMENT NO. 2 TO LEASE AGREEMENT is made this 22 day of April,
1999, by and between CHIPPEWA LIMITED PARTNERSHIP, a Maryland limited
partnership, hereinafter called "Landlord," and OSICOM TECHNOLOGIES, INC., a
Delaware corporation f/k/a CASE/DATAEL, INC.), hereinafter called "Tenant."
WHEREAS Landlord and Tenant are parties to a Lease Agreement dated October
4, 1989, as modified by First Amendment of Lease dated October 19, 1994 (the
"Lease"); and
WHEREAS Tenant has requested Landlord to make certain modifications to the
term of the Lease; and
WHEREAS Landlord is willing to make the modifications to the Lease Tenant
has requested, upon certain terms and conditions, all as more fully described
herein below.
WITNESSETH, in consideration of the premises and the mutual covenants
herein contained, the Lease is hereby amended as follows:
1. Effective , [June 1, 1999] Tenant shall [make best efforts to vacate]
and shall deliver to Landlord,in the condition the Premises are to be delivered
at the conclusion of the term, that portion of the Premises consisting of 34,956
square feet, as shown on Exhibit A attached hereto and hereby made a part
hereof, and such space shall no longer be leased from Landlord to Tenant, shall
no longer be a portion of the Premises and Tenant shall and hereby does,
effective such date, relinquish any right or interest to such space. Effective ,
[June 1, 1999] the "Premises" shall mean the 37,384 square feet of space shown
on Exhibit A. The foregoing notwithstanding, any obligations of Tenant relating
to such space, that accrued prior to , [June 1, 1999] shall remain in effect.
2. Effective [June 1, 1999] the term of the Lease shall be for a period of
five (5) years and [five (5)] months from [June 1, 1999]. Accordingly, the term
of the Lease shall expire and the Termination Date shall be October 31, 2004.
1
3. Landlord shall install the tenant improvements set forth in the Tenant
Improvement Specifications attached hereto as Exhibit A-1 and the Floor Plan
attached hereto as Exhibit A-2. Landlord, based upon its discussions with
Tenant, has estimated that the total costs of the tenant improvements (such
costs to include all amounts paid to contractors, subcontractors, material
suppliers, design or other professionals, permit fees, and etc.) is One Hundred
Eighty-five Thousand Dollars ($185,000.00) (the "Tenant Improvement Allowance").
Any increase in the amount of such total costs, over the Tenant Improvement
Allowance, including, but not limited to, increases resulting from additions to
or modifications of the attached exhibits, shall be Tenant's obligation and
shall be paid for by Tenant within ten (10) days after demand. Landlord
Estimates that the tenant improvements will be substantially completed within
sixty (60) days after the later of (i) the date of this Amendment, or (ii) the
date of full execution of the lease with Earthshell Corporation, as described in
paragraph 10 below. Notwithstanding the foregoing, Landlord shall have no
liability to Tenant if the tenant improvements are not completed by such date
and, in such event, Tenant shall be required to perform in accordance with the
terms of the Lease and this Amendment, and Landlord shall continue to utilize
commercially reasonable efforts to complete the tenant improvements as promptly
as reasonably possible. Tenant shall cooperate with Landlord in Landlord's
efforts to construct the tenant improvements and shall [make reasonable efforts
to] remove all of its goods and materials from the portions of the Premises upon
which Landlord's contractors are working, so as to provide a safe and clear
working environment for Landlord's contractors. Landlord agrees that it will
provide a copy of all costs associated with the tenant improvements to Tenant
within twenty (20) days after full execution of this Amendment. Landlord agrees
that the carpet it will install, as a part of the tenant improvements, will be a
commercial grade carpet that under normal wear and tear with proper maintenance
will have a useful life of not less than five and one-half (5 1/2) years.
2
4. Until, [May 30, 1999] Tenant shall continue to pay Basic Rental in accordance
with the terms of the Lease. Beginning [June 1, 1999] (if Tenant complies with
paragraph 1 above), the Basic Rental payable with respect to the Lease and the
Premises shall be changed and, beginning on such date, Tenant will pay to
Landlord at [ILLEGIBLE] Xxxxx Xxxx Management Co., Inc., Xxxxx 000, 00 Xxxx'x
Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, or at such other place as Landlord shall from
time to time direct, the Basic Rental in the amounts set forth below. The Basic
Rental shall be payable in equal monthly installments, in advance and without
demand, on the first day of each and every month during the term of the Lease,
commencing on [June 1, 1999]. Basic Rental shall be as follows:
Term Annual Basic Rental Monthly Basic Rental
[June 1, 1999] to
April 30, 2000 $371,970.80 $30,997.57
May 1, 2000 to
April 30, 2001 $379,410.21 $31,617.52
May 1, 2001 to
April 30, 2002 $386,998.41 $32,249.87
May 1, 2002 to
April 30, 2003 $394,738.38 $32,894.86
May 1, 2003 to
April 30, 2004 $402,633.14 $33,552.76
May 1, 2004 to
October 31, 2004 $410,685.80 $34,223.87
Notwithstanding anything to the contrary contained in this paragraph
4, the foregoing rent schedule is based upon the assumption that the actual
total costs of the tenant improvements (the "Actual Costs") are at least one
Hundred Eighty-five Thousand Dollars ($185,000.00). In the event that the Actual
Costs is less than the Tenant Improvement Allowance, then the amount of Basic
Rental shall be recalculated and shall be reduced by an amount equal to that
obtained by amortizing the difference between the Tenant Improvement Allowance
3
and the Actual Costs on a monthly basis over a ten (10) year period at an
interest rate of ten percent (10%). For instance, if the Actual Costs are One
Hundred Thirty-five Thousand Dollars ($135,000.00), then the amount of Basic
Rental payable for the period May 1, 1999 to April 30, 2000 would be Three
Hundred Sixty-four Thousand Forty-one and 68/100 Dollars ($364,041.68) and the
monthly Basic Rental payment for such period would be Thirty Thousand Three
Hundred Thirty-six and 81/100 Dollars ($30,336.81), and such amount would be
increased at the rate of two percent (2%) per year for each of the remaining
lease years during the term.
5. The current base year for all purposes of the Lease, including, but not
limited to, taxes(in accordance with paragraph 6 of the Lease), fire and
extended coverage and rental insurance (in accordance with paragraph 7 of the
Lease), and common area maintenance charges (in accordance with paragraph 8 of
the Lease) will not change and will remain the same as it was when the Lease was
originally executed on October 4, 1989. Tenant's proportionate share, however,
shall (if Tenant is in compliance with paragraph 1 above) change effective [June
1, 1999] and shall be reduced from seventy-four and fifty-eight one hundredths
percent (74.58%) to thirty-eight and fifty-four one hundredths percent (38.54%).
6. Paragraph 4 of the Lease is deleted in its entirety and is replaced
with the following:
Late Payment:
In the event that any payment required by Tenant under the
provisions of this Lease shall not be paid when due, Tenant shall,
upon demand, pay to Landlord (i) a late charge equal to the maximum
late charge contained in or mandated by the loan documents
evidencing or securing any first lien affecting the improvements
from time to time, and (ii)
4
interest on such payment from the date when due until paid at the
rate of eighteen percent (18%) per annum. The late charges imposed
under this paragraph shall be deemed "rent" for all purposes under
this Lease, are not penalties and have been agreed to by Landlord
and Tenant as necessary to compensate Landlord for its additional
costs associated with late payment.
7. Landlord is currently in possession of a security deposit under the
Lease in the amount of Forty-eight Thousand Two Hundred Twenty-eight Dollars
($48,228.00). Effective [June 1, 1999], Landlord, provided Tenant is not in
default, will credit Seventeen Thousand Two Hundred Thirty and 43/100 Dollars
($17,230.43) against the Basic Rental payment due on [June 1, 1999]. The balance
of the amount now being held by Landlord, Thirty Thousand Nine Hundred
Ninety-seven and 57/100 Dollars ($30,997.57), shall continue to be held by
Landlord as a security deposit, which sum shall be held without payment of
interest as security for the performance by Tenant of its obligations under the
Lease. Landlord is authorized to deposit those funds in a non-interest bearing
account commingled with Landlord's general funds or otherwise, and Landlord
shall not. be responsible for the solvency of the depository so long as it is
insured by the Federal Deposit Insurance Corporation or similar insurer. If
Tenant shall perform all such obligations, said security deposit shall be
refunded to Tenant, without interest, within thirty (30) days after termination
of the Lease. If Tenant shall default in any obligation, Landlord shall be
entitled to apply any or all of said security deposit toward Landlord's damages
as determined by Landlord, and Tenant shall, within five (5) days after notice
thereof, deposit with Landlord an amount sufficient to restore said security
deposit to its original amount, which amount shall constitute "rent" under this
Lease.
5
8. Paragraphs 6, 8 and 10 of the October 19, 1994 First Amendment to
Lease, the Rider #2 to Lease Agreement Option to Renew and the Rider #3 to Lease
Agreement Rights of Expansion and any other rights of renewal, expansion,
termination, first refusal or similar rights contained in the Lease are all
hereby deleted from the Lease and declared to be null and void and of no force
or effect. The following renewal right shall be the only right of renewal of
Tenant under or in connection with the Lease:
Tenant shall have the Option to Renew the Lease for one (1)
additional five (5) year term upon giving written notice of intention to renew
to Landlord not less than one hundred eighty (180) days prior to the expiration
of the term of the Lease, as described in paragraph 2 above. Any such written
notice must advise Landlord of Landlord's obligation, described below in this
paragraph 8, to make an initial determination of the "Market Rate" for the
renewal term. All terms and conditions of the Lease shall remain in full force
and effect during the renewal term, except that there shall be no further right
of renewal and the Basic Rental for the renewal term shall be the "Market Rate,"
as defined below, effective the first day of the renewal term.
The Option to Renew granted to Tenant is personal to Tenant and may
not be exercised or be assigned, voluntarily or otherwise, by or to any person
or entity other than Tenant without the prior written consent of Landlord.
Additionally, at Landlord's option, the Option to Renew shall be null and void
if, either at the time Tenant exercises such option or at the time such renewal
term is to commence, Tenant is in default under any provision of the Lease.
The following procedure shall be used to determine the Market Rate,
for the renewal term. Not less than one hundred fifty (150) days prior to the
commencement of the renewal term, Landlord shall send to Tenant a written notice
specifying its determination of the Market Rate. Within twenty (20) days after
receipt of such notice from Landlord, Tenant shall send Landlord a written
notice of Tenant's acceptance or challenge of Landlord's determination of such
Market Rate, provided, however, that in the event that Tenant fails to respond
within such twenty (20) day period, Tenant shall be deemed to have accepted
Landlord's determination of the Market Rate.
6
In the event that Tenant challenges Landlord' s determination of the
Market Rate and Landlord and Tenant are not able to agree on such Market Rate
within fifteen (15) days (hereinafter referred to as the "Negotiation Period")
after Landlord receives Tenant's initial rejection of Landlord's determination
of such Market Rate, then Landlord and Tenant shall each, within ten (10) days
after the expiration of the Negotiation Period, select an appraiser, each of
whom shall be an MAI-certified real estate appraiser with at least five (5)
years, experience in the Columbia, Maryland market who shall determine the
Market Rate in accordance with this paragraph. The appraisers shall be
instructed to complete the appraisal procedure independently and to submit their
written determinations to Landlord and Tenant within thirty (30) days after
their appointment.
In the event that the higher determination of the Market Rate
submitted by one of the appraisers is equal to or less than one hundred fifteen
percent (115%) of the determination of the Market Rate submitted by the other
appraiser, the Market Rate shall be the average of such determinations. If the
determination of the Market Rate submitted by one of the appraisers is greater
than one hundred fifteen percent (115%) of the determination of the Market Rate
submitted by the other appraiser, the appraisers shall, within five (5) days of
notice from either Landlord or Tenant, appoint a third appraiser with similar
qualifications to make a determination of the Market Rate. The third appraiser
shall be instructed to complete the appraisal procedure and to submit a written
determination of the Market Rate to Landlord and Tenant within thirty (30) days
after such appraiser's appointment.
The determination which is neither the highest nor the lowest of the
three determinations shall be binding upon Landlord and Tenant as the Market
Rate unless two determinations are the same, in which event the Market Rate
shall be such amount. Landlord and Tenant shall each bear the costs of their
respective appraisers. The expenses of the third appraiser shall be borne
one-half (1/2) by Landlord and one-half (1/2) by Tenant. "Market Rate" shall
mean what a Landlord under no compulsion to lease the Premises and a Tenant
under no
7
compulsion to lease the Premises would determine as the Basic Rental, given the
other provisions of the Lease which remain applicable to the parties.
Notwithstanding anything to the contrary contained in this paragraph 8, in no
event shall the Basic Rental for the renewal term be less than the Basic Rental
in effect at the end of the last year of the term of the Lease. In the event the
Market Rate has not been determined by the commencement of the renewal term, the
Tenant shall pay Basic Rental equal to one hundred twenty percent (120%) of the
Basic Rental in effect at the end of the last year of the term of the Lease,
until the Market Rate is determined and promptly after such determination, the
parties shall make an appropriate adjustment to reconcile any overpayments or
under payments of Basic Rental made prior to the determination of the Market
Rate.
9. Tenant shall have an option to terminate the Lease with respect to that
portion of the Premises, consisting of 11,650 square feet, as shown on Exhibit A
(the "Released Space"). The option to terminate the Lease as to the Released
Space shall be effective, if at all, on April 30, 2003 and shall be effective
only if Tenant delivers written notice of termination to Landlord, which notice
must be given on or before October 31, 2002 and Tenant must deliver with such
notice a cashier or certified check payable to Landlord in an amount (the
"Termination Fee") equal to three (3) times the monthly Basic Rental which would
have been due for the month of April 2003, had Tenant not exercised such
termination option. (For instance, if the Basic Rental due for the month of
April 2003 were $32,894.86, the Termination Fee would be $98,684.58.) The
Termination Fee shall be non-refundable and Landlord shall be entitled to keep
the full amount of the Termination Fee, regardless of whether or not Landlord
re-leases the Released Space or any parts thereof. Any purported exercise of
Tenant's option to terminate which does not strictly comply with the terms set
forth above shall, at Landlord's election, be ineffective.
8
If Tenant effectively exercises its option to terminate the Lease as to
the Released Space, then, effective May 1, 2003, (i) the Released Space shall no
longer be leased from Landlord to Tenant, shall no longer be a portion of the
Premises and Tenant shall have relinquished any right or interest to such space,
(ii) Tenant shall vacate the Released Space and deliver it to Landlord in the
condition the Premises are to be delivered at the conclusion of the term, and
(iii) there will be a pro rata downward adjustment in the amount of Basic Rental
to be paid for the balance of the Lease term, as well as a pro rata downward
adjustment in the amount of Tenant's proportionate share for all purposes of the
Lease, including those specifically mentioned in paragraph 5 above. The
foregoing notwithstanding, any obligations of Tenant relating to such space,
that accrued prior to May 1, 2003, shall remain in effect.
The option to terminate granted to Tenant is personal to Tenant and may
not be exercised or be assigned, voluntarily or otherwise, by or to any person
or entity other than Tenant without the prior written consent of Landlord.
Additionally, at Landlord's option, the option to terminate shall be null and
void if, either at the time Tenant exercises such option or at the time such
termination is to become effective, Tenant is in default under any provision of
the Lease.
10. Notwithstanding anything to the contrary contained in this Amendment,
this Amendment and Landlord's obligations hereunder shall be contingent upon
Landlord having obtained a fully executed lease for not less than 34,956 square
feet of space within the Improvements with Earthshell Corporation, a Delaware
corporation ("Earthshell"), which lease shall be satisfactory to Landlord in its
sole and absolute discretion in all respects. In the event Landlord fails to
obtain such a lease within fifteen (15) days after the execution of this
Amendment, then, Landlord shall have the right, at any time within fifteen (15)
days after such date, by written notice to Tenant, to declare this Amendment
null and void, in which event this Amendment shall be and become null and void
and the rights and obligations with respect to the parties shall be determined
by the Lease, as if this Amendment had never been executed.
9
11. In the event and only in the event that this Amendment is fully
executed and delivered and becomes effective (i.e., is not terminated pursuant
to paragraph 9 above), Landlord agrees to pay Xxxx Commercial LLC (the "Broker")
a leasing commission on account of this Amendment in the amount specified in a
separate written agreement between Landlord and the Broker. Tenant represents
and warrants to Landlord that it has not dealt with any other realtor, broker or
person that might claim a commission or fee in connection with this Amendment
other than the Broker and shall indemnify, defend and hold harmless Landlord
from and against any claim, loss, cost, damage or expense (including attorneys'
fees) incurred if such representation or warranty shall not be true and correct.
12. Tenant represents and warrants to Landlord that Osicom Technologies,
Inc., a Delaware corporation, is the same entity as Case/Datael, Inc. , a
Delaware corporation, but merely reflects a name change, and that this Amendment
has been duly authorized by all necessary corporate action of Tenant and is the
valid, binding and enforceable act of Tenant.
13. By its execution of this Amendment, Tenant hereby certifies and
represents to Landlord that Landlord is in compliance with all of the terms,
covenants and conditions of the Lease and Tenant has no claim or cause of action
against or with respect to Landlord or its agents, employees or contractors
arising out of or in any way connected with the Lease or the use of the
Premises.
14. Capitalized terms not defined in this Amendment shall have the
meanings ascribed to those terms in the Lease.
15. Except as set forth herein, the Lease remains in full force and effect
and unmodified.
16. Time is of the essence of all provisions of this Amendment and remains
of the essence of all provisions of the Lease.
10
17. The provisions of this Amendment shall bind and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF the parties hereto have executed under seal this
Amendment on the day and year first written above.
WITNESS/ATTEST: CHIPPEWA LIMITED PARTNERSHIP
By: Emory Holdings II Limited
Partnership, general partner
------------------------ By: (SEAL)
---------------------------
R. Xxxxxxx Xxxxx
General Partner
OSICOM TECHNOLOGIES, INC.
By: (SEAL)
------------------------ ---------------------------
Xxxxxxx Xxxxxxxx
VP Finance & Operations
[18. Remaining tenant improvement allowance from October 19, 1999 amounts shall
be credited to Tenant.]
11
FIRST AMENDMENT OF LEASE
THIS FIRST AMENDMENT OF LEASE dated this 19th day of October, 1994, is
made and entered into by and between CHIPPEWA LIMITED PARTNERSHIP, (hereinafter
referred to as "Landlord"), and CASE/DATATEL, INC., (hereinafter referred to as
"Tenant"), for the premises known as 0000 Xxxxxxxx Xxxxx, is entered into upon
the following terms and conditions:
W I T N E S S E T H:
WHEREAS, Landlord and Tenant executed and delivered a Lease
Agreement dated October 4, 1989, for the premises known as 0000 Xxxxxxxx Xxxxx,
and
WHEREAS, Landlord and Tenant executed and delivered an Assignment of
Lease to Xxxxx Xxxx & Associates dated October 4, 1989, and
WHEREAS, Landlord and Tenant desire to amend this Lease Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements, the parties hereby agree to amend the Lease Agreement for the 72,342
leasable square feet of space, upon the following terms and conditions:
1. Landlord and Tenant hereby mutually agree to extend the term of
this Lease for an additional five (5) year term commencing November 1, 1994 and
terminating October 31, 1999.
2. Tenant agrees to pay rent to Landlord according to the following
industrial gross rental schedule:
TERM DOLLAR MONTHLY ANNUAL
/S.F. RENTAL RENTAL
11/01/94-10/31/96 $7.40 $44,610.90 $535,330.80
11/01/96-10/31/97 $7.60 $45,816.60 $549,799.20
11/01/97-10/31/99 $8.00 $48,228.00 $578,736.00
3. Tenant's name was changed from Case/Datatel, Inc. to Xxxxx
Communications, Inc- and again changed from Xxxxx Communications to Cray
Communications effective September 1, 1992.
4. Current base year (1990-1991) shall remain as base year for the
purpose of determining proportional share of real estate taxes and insurance.
5. Landlord will provide Tenant with a $30,000.00 Tenant Improvement
allowance.
6. Provided the Tenant is not in default of any of the terms and
conditions of this Lease or First Amendment of Lease, Tenant shall have the
First Right of Refusal on any space that becomes available space in the
building, subject to existing leases at then market rental rate. Tenant shall
have ten (10) days to accept or reject the space. Should Tenant elect to lease
the available space, the rent shall be at the same rent Tenant is then paying
for its space then under lease and shall be coterminous with the amended lease
term.
7. Landlord shall allow Tenant to erect a prominent, back-lit
building sign identifying the Tenant, at Tenant's sole cost and expense. Tenant
is responsible for obtaining any permits required for erecting the sign and the
sign will be subject to review by Landlord and Park Covenants.
8. Tenant shall have the option to terminate this Lease Agreement
and First Lease amendment after three (3) years and after four (4) years. Should
the Tenant elect to exercise this termination option after three (3) years, the
cancellation penalty will be $202,598.50. Should the Tenant elect to exercise
this termination option after four (4) years, the cancellation penalty will be
$124,207.50.
9. All other terms and conditions of Tenant's existing Lease shall
remain in full force and effect.
10. Tenant shall provide Landlord Six (6) months written notice of
its desire to renew its Lease. The renewal term shall be five (5) years. The
Lease rate during the renewal term shall be established
using the Three (3) Broker Method. Upon Landlord receiving written notice of
Tenant's desire to renew, Landlord and Tenant shall have fifteen (15) calendar
days to select a Broker. The Landlord and Tenant selected brokers shall then
have seven (7) calendar days to mutually agree upon the third Broker. The three
(3) Brokers shall then have Fourteen (14) calendar days to submit simultaneously
to Landlord and Tenant their opinion of the then Market Renewal Rate for
comparable size, geographic and facility transactions. This option must be
supported by a minimum of five (5) market comparable transactions. The renewal
rate quoted by the Brokers shall be quoted on an Industrial Gross Basis and the
rate shall be flat, i.e. non-escalating during the five (5) year renewal period.
The three (3) Broker rate quotes shall be averaged and then multiplied by 9.5%
to establish a binding rental rate for the renewal period.
Example:
Broker #1 Quote - $5.00
Broker #2 Quote - $6.00
Broker #3 Quote - $5.50
Calculation:
($5.00 + $6.00 + $5.50) (3 x .95) $5.23
Example Renewal Rate:
$5.23 Industrial Gross Flat for five (5) years
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment of Lease the day and year first written above.
WITNESS: LANDLORD:
CHIPPEWA LIMITED PARTNERSHIP
By:
-------------------------------- ------------------------------------
WITNESS: TENANT:
CRAY COMMUNICATIONS, INC.
By:
-------------------------------- ------------------------------------
Xxx Xxxxxxxx
----------------------------------------
Print Name
Controller
----------------------------------------
Title
10/19/94
----------------------------------------
Date
