EXHIBIT 10.40
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
4,169 square feet 618811-01
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE (hereinafter referred to as "this Lease"), made
this 14th day of December, 1993, by and between ROCKVILLE OFFICE/INDUSTRIAL
ASSOCIATES, a limited partnership organized and existing under the law of Texas
having an address at x/x Xxxxxxxx Xxxx Xxxxxxx, 0000 Xxxxxxxx Xxxx Center, 0000
Xxxx Xxxxxx, Xxxxxx, XX 00000-0000 (hereafter referred to as "the Landlord"),
and COMTEQ FEDERAL, INC., a corporation organized and existing under the law of
Maryland having an address at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
(hereinafter referred to as "the Tenant").
WITNESSETH, THAT FOR AND IN CONSIDERATION of the mutual entry into this
Lease by the parties hereto, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by each party hereto, the
Landlord hereby leases to the Tenant and the Tenant hereby leases from the
Landlord all of that real property, situate and lying in Xxxxxxxxxx County,
Maryland, which consists of the space (containing approximately 4,169 square
feet of floor area) shown outlined in red on a plat attached hereto as Exhibit A
(hereinafter referred to as "the Premises") and located in a building
(hereinafter referred to as "the Building") at 0000 Xxxxxxxx Xxxxx in Rockville,
Maryland, on a tract of land designated as "Parcel D" on a plat entitled Xxxx
North, in the Rockville (4th) District of Xxxxxxxxxx County and recorded among
the Land Records of the said County in Plat Book 118 at Plat 13906 (the
Premises, the remainder of the Building, such tract of land, the three (3) other
office buildings thereon, and any other buildings or improvements thereon being
hereinafter referred to collectively as "the Property").
SUBJECT TO THE OPERATION AND EFFECT of any and all instruments and
matters of record or in fact,
UPON THE TERMS AND SUBJECT TO THE CONDITIONS which are hereinafter set
forth:
Section 1. TERM.
1.1 Length. This lease shall be for a term (hereinafter referred to
------
as "the Term") (a) commencing on December 20, 1993 day after the date on which
the Landlord substantially completes the improvements to be made to the Premises
under the provisions of Section 5 and tenders possession thereof to the Tenant
(hereinafter referred to as "the Commencement Date", except that if the date of
such commencement is hereafter advanced or postponed pursuant to any provision
of this Lease, or by written agreement of the parties hereto, the date to which
it is advanced or postponed thereafter be "the Commencement Date" for all
purposes of the provisions of this Lease), and (b) terminating at 12:01 A.M.,
local time, on the third (3/rd/th) anniversary of the first (1st) day of the
first (1st) full calendar month during the Term (hereinafter referred to as "the
Termination Date", except that if the date of such termination is hereafter
advanced or postponed pursuant to any provision of this Lease, or by written
agreement of the parties hereto, the date to which it is advanced or postponed
shall thereafter be the Termination Date for all purposes of the provisions of
this Lease as applicable thereafter).
1.2 Confirmation of Commencement and Termination. The Tenant shall,
--------------------------------------------
within thirty (30) days after, respectively, (a) the commencement of the Term,
and (b) the expiration of the Term or any earlier termination of this Lease by
action of law or in any other manner, confirm in writing that, respectively,
such commencement or such termination has occurred, setting forth therein the
Commencement Date and the Termination Date.
1.3 Surrender. The Tenant shall at its expense, at the expiration of
---------
the Term or any earlier termination of this Lease, (a) promptly surrender to the
Landlord possession of the Premises (including any fixtures or other
improvements which, under the provisions of Section 5, are owned by the
Landlord) in good order and repair (ordinary wear and tear accepted) and broom
clean, (b) remove therefrom the Tenant's signs, goods and effects and any
machinery, trade fixtures and equipment used in conducting the Tenant's trade or
business and not owned by the Landlord, and (c) repair any damage to the
Premises or the Building caused by such removal.
1.4 Holding Over.
------------
1.4.1. If the Tenant continues to occupy the Premises after the
expiration of the Term or any earlier termination of this Lease after obtaining
the Landlord's express, written consent thereto.
(a) such occupancy shall (unless the parties hereto
otherwise agree in writing) be deemed to be under a month-to-month tenancy,
which shall continue until either party hereto notifies the other in writing, by
at least thirty (30) days before the end of any calendar month, that the
notifying party elects to terminate such tenancy at the end of such calendar
month, in which event such tenancy shall so terminate.
(b) anything contained in the foregoing provisions of
this Section to the contrary notwithstanding, the rental payable for each such
monthly period shall equal one-twelfth (1/12) of the Base Rent and the
Additional Rent payable under the provisions of subsection 2.2 (calculated in
accordance with such provisions of subsection 2.2 as if this Lease had been
renewed for a period of twelve (12) full calendar months after such expiration
or earlier termination of the Term or such renewal); and
(c) such month-to-month tenancy shall be upon the same
terms and subject to the same conditions as those set forth in the provisions of
this Lease; provided, that if the Landlord gives the Tenant, by at least thirty
(30) days before the end of any calendar month during such month-to-month
tenancy, written notice that such terms and conditions (including any thereof
relating to the amount or payment of Rent) shall, after such month, be modified
in any manner specified in such notice, then such tenancy shall, after such
month, be upon the said terms and subject to the said conditions, as so
modified.
1.4.2. If the Tenant continues to occupy the Premises after the
expiration of the Term or any earlier termination of this Lease without
obtaining the Landlord's express, written consent thereto, such occupancy shall
be on the same terms and subject to the same conditions as those set forth in
the provisions of paragraph 1.4.1, except that, anything contained in the
provisions of this Lease to the contrary notwithstanding, (a) the rental payable
during the period
of such occupancy shall equal one hundred twenty percent (120%) of the rental
which would be payable during such period under the provisions of subparagraph
1.4.1.(b), had the Tenant obtained the Landlord's express, written consent to
such occupancy, as aforesaid, and (b) nothing in the provisions of paragraph
1.4.1 or any other provision of this Lease shall be deemed in any way to alter
or impair the Landlord's right immediately to evict the Tenant or exercise its
other rights and remedies under the provisions of this Lease or applicable law
on account of the Tenant's occupancy of the Premises without having obtained
such consent.
Section 2. RENT.
2.1 Amount. As rent for the Premises (all of which is hereinafter
------
referred to collectively as "Rent"), the Tenant shall pay to the Landlord all of
the following:
2.1.1. Base Rent. An annual rent (thereinafter referred to as
"the Base Rent") comprised of the aggregate of the following components:
(a) Net Component. A net component (hereinafter referred
to as "the Net Component") which
(i) for the first Lease Year during the Term, is in
the sum of Thirty- Five Thousand Eight Hundred Fifty-Three and 40/100 Dollars
($35,853.40) plus (if the Term commences on a day other than the first (1st) day
of a calendar month) one three-hundred sixty-fifth (1/365) of the Net Component
for each day of such calendar month falling within the Term; and
(ii) for each Lease Year thereafter during the Term,
is in a sum equaling the greater of (A) the Net Component for the immediately
preceding Lease Year, or (B) the product obtained by multiplying (1) the said
sum of Thirty-Five Thousand Eight Hundred Fifty-Three and 40/100 Dollars (
$35,853.40 ) by (2) a fraction, the numerator of which is the sum of (a) the
Initial Consumer Price Index plus (b) 0 % of any excess of the Current Consumer
Price Index over the Initial Consumer Price Index, and the denominator of which
is the Initial Consumer Price Index. As used herein (a) the term "Consumer Price
Index" means the Consumer Price Index for Urban Wage Earners and Clerical
Workers Revised (1967 = 100), Washington, D.C., Index, published by the Bureau
of Labor Statistics of the United States Department of Labor, (b) the term
"Initial Consumer Price Index" means the Consumer Price Index so published for
the calendar month containing the Commencement Date, and (c) the term "Current
Consumer Price Index" means the Consumer Price Index so published for the
calendar month immediately preceding that during which the said Lease Year
commences (in each case, if the Consumer Price Index is not so published for
such calendar month, then the Consumer Price Index for the most recent calendar
month or other period for which it is so published) (provided, that if the
Consumer Price Index hereafter uses a different standard reference base or is
otherwise revised, an adjustment shall be made therein for purposes of the
provisions of this Lease, using such conversion factor, formula or table for
making such adjustment as is published by such Bureau, or if such Bureau does
not publish the same, then as is published by Xxxxxxxx-Xxxx, Inc., the Bureau of
National Affairs, Commerce Clearing House or any other nationally recognized
publisher of similar statistical information, as selected by the Landlord); and
(b) Costs Component. An initial operating costs component
(hereinafter referred to as "the Costs Component") which, for each Lease Year
during the Term, is in the sum of Twenty-Two Thousand Nine Hundred Twenty-Nine
and 50/100 Dollars ($ 22,929.50 ) plus (if the Term commences on a day other
than the first (1st) day of a calendar month) for the initial Lease Year, one
three-hundred sixty-fifth (1/365) of the Costs Component for each day of such
calendar month falling within the Term (but without impairing the Tenant's
liability for any Additional Rent accruing under the provisions of subsection
2.2).
2.1.2. Additional Rent. additional rent (hereinafter referred to
as "Additional Rent") in the amount of any payment referred to as such in any
provision of this Lease which accrues while this Lease is in effect.
2.1.3. Lease Year. As used in the provisions of this Lease, the
term "Lease Year" means (a) the period commencing on the Commencement Date and
terminating on the
first (1st) anniversary of the last day of the calendar month containing the
Commencement Date, and (b) each successive period of twelve (12) calendar months
thereafter during the Term.
2.2 Annual Operating Costs.
----------------------
2.2.1. Definitions. As used herein.
(a) the term "Annual Operating Costs" means the actual
costs incurred by the Landlord in operating and maintaining the Property during
each calendar year of the Term. Such costs shall include, by way of example
rather than of limitation, (i) real property front-foot benefit, metropolitan
district and other similar taxes or public or private assessments (whether
regular or special) levied against any or all of the property; (ii) charges or
fees for, and taxes on, the furnishing of water, sewer service, gas, fuel,
electricity or other utility services to the Property; (iii) costs of providing
elevator, janitorial and trash removal service, and of maintaining grounds,
common areas and mechanical systems of buildings; (iv) all other costs of
maintaining, repairing or replacing any or all of the Building of the rest of
the Property; (v) charges or fees for any necessary governmental permits; (vi)
management fees, overhead and expenses; (vii) premiums for hazard, liability,
workmens' compensation or similar insurance upon any or all of the Property;
(viii) costs arising under service contracts with independent contractors; (ix)
costs of any services not provided by the Landlord to the Property on the date
hereof but hereafter provided by the Landlord in its prudent management of the
Property; and (x) the cost of any other items which, under generally accepted
accounting principles consistently applied from year to year with respect to the
Property, constitute operating or maintenance costs attributable to any or all
of the Property. Such costs shall not include (i) the expense of principal and
interest payments made by the Landlord pursuant to the provisions of any
mortgage or deed of trust covering the Property; (ii) any deduction for
depreciation of the Property taken on the Landlord's income tax returns; or
(iii) the cost of capital improvements made to the Property.
(b) The term "Tenant's Operating Costs Percentage" (i)
means the percentage assigned to the Premises for purposes of allocating the
Annual Operating Costs to the Premises (and the rest of the net rentable spaces
within the Property) in accordance with the provisions of this subsection, (ii)
represents the approximate and (for purposes of the provisions of this Lease)
hereby agreed upon proportion which the floor area of the Premises bears to the
aggregate net rentable space with in the Property, and (iii) shall be two point
five (2.5 %).
2.2.2. Portion covered by Costs Component. The Costs Component of
the Base Rent represents the Landlord's estimate on the date hereof of the cost
to the Landlord per calendar year of providing to or for the benefit of the
Premises all of the services or other items, the costs of which are included in
the Annual Operating Costs, excluding any of such services or other items to be
provided at the Tenant's direct expense under the provisions of Section 6.
2.2.3. Computation. After the end of each calendar year during
the Term, the Landlord shall compute the total of the Annual Operating Costs
incurred for all of the Property during such calendar year, and shall allocate
them to the net rentable space within the Property in proportion to the
respective Operating Costs Percentages assigned to such spaces; provided, that
anything contained in the foregoing provisions of this subsection 2.2 to the
contrary notwithstanding, wherever the Tent and/or any other tenant of space
within the Property has agreed in its lease or otherwise to provide any item of
such services partially or entirely at its own expense, or wherever in the
Landlord's judgment any such significant item of expense is not incurred with
respect to or for the benefit of all of the net rentable space within the
Property, in allocating the Annual Operating Costs pursuant to the foregoing
provisions of this subsection the Landlord shall make an appropriate adjustment,
using generally accepted accounting principles, as aforesaid, so as to avoid
allocating to the Tenant or to such other tenant (as the case may be) those
Annual Operating Costs covering such services already being provided by the
Tenant or by such other tenant at its own expense, or to avoid allocating to all
of the net rentable space within the Property those Annual Operating Costs
incurred only with respect to a portion thereof, as aforesaid.
2.2.4. Payments as Additional Rent. The Tenant shall, within
thirty (30) days after demand therefor by the Landlord (with respect to each
calendar year during the Term), accompanied by a statement setting forth in
reasonable detail the Annual Operating Costs for such calendar year, pay to the
Landlord as Additional Rent the amount by which (a) the Tenant's
Operating Costs Percentage of the Annual Operating Costs for such calendar year
(as derived and allocated under the provisions of paragraph 2.2.3) exceeds (b)
the amount of the Costs Component of the Base Rent.
2.2.5. Proration. If only part of any calendar year falls within
the Term, the amount computed as Additional Rent for such calendar year under
the foregoing provisions of this subsection shall be prorated in proportion to
the portion of such calendar year falling within the Term (but the expiration of
the Term before the end of a calendar year shall not impair the Tenant's
obligation hereunder to pay such prorated portion of such Additional Rent for
that portion of such calendar year falling within the Term, which shall be paid
on demand, as aforesaid).
2.2.6. Landlord's Right to Estimate. Anything contained in the
foregoing provisions of this subsection to the contrary notwithstanding, the
Landlord may, at its discretion, (a) make from time to time during the Term a
reasonable estimate of the Additional Rent which may become due under such
provisions for any calendar year, (b) require the Tenant to pay to the Landlord
for each calendar month during such year one twelfth (1/12) of such Additional
Rent, at the time and in the manner that the Tenant is required hereunder to pay
the monthly installment of the Base Rent for such month, and (c) at the
Landlord's reasonable discretion, increase or decrease from time to time during
such calendar year the amount initially so estimated for such calendar year, all
by giving the Tenant written notice thereof, accompanied by a schedule setting
forth in reasonable detail the expenses comprising the Annual Operating Costs,
as so estimated. In such event, the Landlord shall cause the actual amount of
such Additional Rent to be computed and certified to the Tenant within 120 days
after the end of such calendar year, and the Tenant or the Landlord, as the case
may be, shall promptly thereafter pay to the other the amount of any deficiency
or overpayment therein, as the case may be.
2.3 When Due and Payable.
--------------------
2.3.1. The Base Rent for any Lease Year shall be due and payable
in twelve (12) consecutive, equal monthly installments, in advance, on the first
(1st) day of each calendar month during such Lease Year; provided, that the
installment of the Base Rent payable for the first full calendar month of the
Term (and, if the Term commences on a day other than the first (1st) day of a
calendar month, that portion of the Base Rent which is payable for such month)
shall be due and payable on the Commencement Date.
2.3.2. Any Additional Rent accruing to the Landlord under any
provision of this Lease shall, except as is otherwise set forth herein, be due
and payable when the installment of the Base Rent next falling due after such
Additional Rent accrues becomes due and payable, unless the Landlord makes
written demand upon the Tenant for payment thereof at any earlier time, in which
event such Additional Rent shall be due and payable at such time.
2.3.3. Each such payment shall be made promptly when due, without
any deduction or setoff whatsoever, and without demand, failing which the Tenant
shall pay to the Landlord as Additional Rent, for each day on which such payment
is due but unpaid, a late charge equaling 1/365th of twenty percent (20%) of
such payment.
2.4 Where Payable. The Tenant shall pay the Rent, in lawful currency
-------------
of the United States of America, to the Landlord by delivering or mailing it
(postage prepaid) to the Landlord's address which is set forth hereinabove, or
to such other address or in such other manner as the Landlord from time to time
specifies by written notice to the Tenant. Any payment made by the Tenant to the
Landlord on account of Rent may be credited by the Landlord to the payment of
any Rent then past due before being credited to Rent currently falling due. Any
such payment which is less than the amount of Rent then due shall constitute a
payment made on account thereof, the parties hereto hereby agreeing that the
Landlord's acceptance of such payment (whether or not with or accompanied by an
endorsement or statement that such lesser amount or the Landlord's acceptance
thereof constitutes payment in full of the amount of Rent then due) shall not
alter or impair the Landlord's rights hereunder to be paid all of such amount
then due, or in any other respect.
2.5. Tax on Lease. If federal, state or local law now or hereafter
------------
imposes any tax, assessment, levy or other charge (other than any income,
inheritance or estate tax) directly or indirectly upon (a) the Landlord with
respect to this Lease or the value thereof, (b) the Tenant's use or occupancy of
the Premises, (c) the Base Rent, Additional Rent or any other sum payable under
this Lease, or (d) this transaction, then (except if and to the extent that such
tax, assessment, levy or other charge is included in the Annual Operating Costs)
the Tenant shall pay the amount thereof as Additional Rent to the Landlord upon
demand, unless the Tenant is prohibited by law from doing so, in which event the
Landlord may, at its election, terminate this Lease by giving written notice
thereof to the Tenant.
2.6. Security Deposit.
----------------
2.6.1. Simultaneously with the entry into this Lease by the
parties hereto, the Tenant shall deposit with the Landlord the sum of Four
Thousand eight Hundred Ninety-Nine and 00/100 Dollars ($4,899.00), which shall
be retained by the Landlord as security for the Tenant's payment of the Rent and
performance of all of its other obligations under the provisions of this Lease.
2.6.2. On the occurrence of an Event of Default, the Landlord
shall be entitled, at its sole discretion,
(a) to apply any or all of such sum in payment of (i)
any Rent then due and unpaid, (ii) any expense incurred by the Landlord in
curing any such default, and/or (iii) any damages incurred by the Landlord by
reason of such default (including, by way of example rather than of limitation,
that of reasonable attorneys' fees); and/or
(b) to retain any or all of such sum in liquidation of
any or all damages suffered by the Landlord by reason of such default.
2.6.3. On the termination of this Lease, any of such sum which is
not so applied or retained shall be returned to the Tenant within 30 days of the
Termination date.
2.6.4. Such sum shall not bear interest while being held by the
Landlord hereunder.
2.6.5. No Mortgagee (as that term is defined by the provisions of
Section 12) or purchaser of any or all of the Property at any foreclosure
proceeding brought under the provisions of any Mortgage (as that term is defined
by the provisions of Section 12) shall (regardless of whether the Lease is at
the time in question subordinate to the lien of any Mortgage under the
provisions of Section 12 or otherwise) be liable to the Tenant or any other
person for any or all of such sum (or any other or additional security deposit
or other payment made by the Tenant under the provisions of this Lease), unless
both (a) the Landlord has actually delivered it in cash to such Mortgagee or
purchaser, as the case may be, and (b) it has been specifically identified, and
accepted by the Lender or such purchaser, as the case may be, as such and for
such purpose.
Section 3. USE OF PREMISES.
3.1 The Tenant shall continuously throughout the Term, occupy and use
the Premises for and only for general office purposes.
3.2. In its use of the Premises and the remainder of the Property,
the Tenant shall not violate any applicable law, ordinance or regulation.
3.3 License.
-------
3.3.1. The Landlord hereby grants to the Tenant a non-exclusive
license to use (and to permit its officers, directors, agents, employees and
invitees to use in the course of conducting business at the Premises).
(a) any and all elevators, common stairways, lobbies,
common hallways and other portions of the Building which, by their nature, are
manifestly designed and intended
for common use by the occupants of the Building for pedestrian ingress and
egress to and from the Premises and for any other such manifest purposes; and
(b) any and all portions of the said tract of land on
which the Building is located (excluding that portion thereof which is improved
by any other building) which, by their nature, are manifestly designed and
intended for common use by the occupants of the Building and of any other
improvements on such tract, for pedestrian ingress and egress to and from the
Premises and for any other such manifest purposes; and
(c) any and all portions of such tract of land as from
time to time are designated (by striping or otherwise) by the Landlord for such
purpose, for the parking of automobiles.
3.3.2. Such license shall be exercised in common with the
exercise thereof by the Landlord, any tenant or owner of the Building or any
other building located on such tract, and their respective officers, directors,
agents, employees and invitees, and in accordance with the Rules and Regulations
promulgated from time to time pursuant to the provisions of Section 11.
3.4. Signs. The Tenant shall have the right to erect from time to time
-----
within the Premises such signs as it desires in accordance with applicable law,
except that the Tenant shall not erect any sign within the Premises in any place
where such sign is visible primarily from the exterior of the Premises, unless
the Landlord has given its express written consent thereto.
3.5. Relocation of Tenant. The Landlord shall have the right one time
--------------------
during the Term, at the Landlord's expense, to relocate the Premises from their
present location within the Building to another location with the Building
having at least the same floor area as that of the Premises as shown on Exhibit
A, provided that the Landlord gives the Tenant written notice of the Landlord's
intention to do so at least thirty (30) days before undertaking such relocation.
The Landlord shall, in such event, at the Landlord's expense, install within the
Premises as so relocated improvements of the same quality and quantity as those
theretofore made by the Tenant or the Landlord to the Premises before such
relocation, and on the completion of such installation shall cause the Tenant's
machinery, furniture, fixtures and equipment within the Premises to be moved to
the Premises as so relocated. Upon the completion of such relocation, this Lease
shall automatically thereafter cover the space to which the Premises have been
relocated, as aforesaid, all on the same terms and subject to the same
conditions as those set forth I the provisions of this Lease as in effect
immediately before each relocation, and all without the necessity of further
action by either party hereto; provided, that each party hereto shall promptly
upon its receipt of a written request therefor from the other, enter into such
amendment of this Lease as the requesting party considers reasonably necessary
to confirm such relocation.
Section 4. INSURANCE AND INDEMNIFICATION.
4.1. Increase in Risk. The Tenant
----------------
4.1.1. shall not do or permit to be done any act or thing as a
result of which either (a) any policy of insurance of any kind covering (I) any
or all of the Property or (ii) any liability of the Landlord in connection
therewith may become void or suspended, or (b) the insurance risk under any such
policy would (in the opinion of the insurer thereunder) be made greater, and
4.1.2. shall pay as Additional Rent the amount of any increase in
any premium for such insurance resulting from any breach of such covenant.
4.2. Insurance to be maintained by Tenant.
------------------------------------
4.2.1. The Tenant shall maintain at its expense, throughout the
Term, insurance against loss or liability in connection with bodily injury,
death, property damage or destruction, occurring within the Premises or arising
out of the use thereof by the Tenant or its agents, employees, officers or
invitees, visitors and guests, under one or ore policies of general public
liability insurance having such limits as to each as are reasonably required by
the Landlord from time to time, but in any event of not less than (a) One
Million, Five Hundred Thousand Dollars
($1,500,000.00) for bodily injury to or death of all persons in any one
occurrence, and (c) Five Hundred Thousand Dollars ($500,000.00) for property
damage or destruction during any one occurrence. Each such policy shall (a) name
as the insureds thereunder the Landlord and the Tenant (and, at the Landlord's
request, any Mortgagee), (b) by its terms, not be cancellable without at least
thirty (30) days prior written notice to the Landlord (and, at the Landlord's
request, any such Mortgagee), and (c) be issued by an insurer of recognized
responsibility licensed to issue such policy in Maryland.
4.2.2. (a) At least five (5) days before the Commencement Date,
the Tenant shall deliver to the Landlord an original or a signed duplicate copy
of each such policy, and (b) at least thirty (30) days before any such policy
expires, the Tenant shall deliver to the Landlord an original or a signed
duplicate copy of a replacement policy (herefor; provided, that so long as such
insurance is otherwise in accordance with the provisions of this Section, the
Tenant may carry any such insurance under a blanket policy covering the Premises
for the risks and in the minimum amounts specified in paragraph 4.2.1, in which
event the Tenant shall deliver to the Landlord two (2) insurer's certificates
therefor in lieu of an original or a copy thereof, as aforesaid.
4.3. Insurance to be maintained by Landlord. The Landlord shall
--------------------------------------
maintain through the Term all-risk or fire and extended coverage insurance upon
the Building, in at least such amounts and having at least such forms of
coverage as are required form time to time by the Landlord's lender. The cost of
the premiums for such insurance and of each endorsement thereto shall be deemed,
for purposes of the provisions of Section 2, to be a cost of operating and
maintaining the Property.
4.4. Waiver of Subrogation. If either party hereto is paid any
---------------------
proceeds under any policy of insurance noting such party as an insured, on
account of any loss, damage or liability, then such party hereby releases the
other party hereto, to and only to the extent of the amount of such proceeds,
from any and all liability for such loss, damage or liability, notwithstanding
that such loss, damage or liability may arise out of the negligent or
intentionally tortious act or omission of the other party, its agents or
employees; provided, that such release shall be effective only as to a loss,
damage or liability occurring while the appropriate policy of insurance of the
releasing party provides that such release shall not impair the effectiveness of
such policy or the insured's ability to recover thereunder. Each party hereto
shall use reasonable efforts to have a clause to such effect included in its
said policies, and shall promptly notify the other in writing if such clause
cannot be included in any such policy.
4.5. Liability of Parties. Except if and to the extent that such
--------------------
party is released from liability to the other party hereto pursuant to the
provisions of subsection 4.4.
4.5.1. the Landlord (a) shall be responsible for, and shall
indemnify and hold harmless the Tenant against and from any and all liability
arising out of, any injury to or death of any person or damage to any property,
occurring anywhere upon the Property, if, only if and to the extent that such
injury, death or damage is proximately caused by the negligent or intentionally
tortious act or omission of the Landlord or its agents, officers or employees,
but (b) shall not be responsible for or be obligated to indemnify or hold
harmless the Tenant against or from any liability for any such injury, death or
damage occurring anywhere upon the Property (including the Premises), (i) by
reason for the Tenant's occupancy or use of the Premises or any other portion of
the Property, or (ii) because of fire, windstorm, act of God or other cause
unless proximately caused by such negligent or intentionally tortious act or
omission of the Landlord, as aforesaid; and
4.5.2. subject to the operation and effect of the foregoing
provisions of this subsection, the Tenant shall be responsible for, and shall
defend, indemnify and hold harmless the Landlord against and from, any and all
liability or claim of liability arising out of any injury to or death of any
person or damage to any property, occurring within the Premises.
Section 5. IMPROVEMENTS TO PREMISES.
5.1. By Landlord
-----------
5.1.1. The Landlord shall make the improvements to the Premises
which are set forth in the plans and specifications attached hereto as Exhibit
B.
5.1.2. See Addendum Paragraph 4.
5.1.3. The Landlord shall use its best efforts to complete such
improvements by the date on which the Tenant is entitled to occupy the Premises
pursuant to this Lease, but shall have no liability to the Tenant hereunder if
prevented from doing so by reason of any (a) strike, lock-out or other labor
troubles, (b) governmental restrictions or limitations, (c) failure or shortage
of electrical power, gas, water, fuel oil, or other utility or service, (d)
riot, war, insurrection or other national or local emergency, (e) accident,
flood, fire or other casualty, (f) adverse weather condition, (g) other act of
God, (h) inability to obtain a building permit or a certificate of occupancy, or
(i) other cause similar or dissimilar to any of the foregoing and beyond the
Landlord's reasonable control. In such event, (a) the Commencement Date shall be
postponed for a period equalling the length of such delay, (b) the Termination
Date shall be determined pursuant to the provisions of subsection 1.1 by
reference to the Commencement Date as so postponed, and (c) the Tenant shall
accept possession of the Premises within ten (10) days after such completion);
provided, that anything contained in the provisions of this Lease to the
contrary notwithstanding, if the Landlord does not substantially complete such
improvements, obtain a use and occupancy permit therefor, and tender possession
thereof to the Tenant, all by March 1,1994 . the Tenant shall be entitled at any
time thereafter, and so long as such events have not occurred, to terminate this
Lease by giving written notice thereof to the Landlord; and further provided
that if the Term has not commenced by April 1, 1994, this Lease shall thereupon
automatically terminate. If this Lease is terminated pursuant to the foregoing
provisions of this paragraph, neither party automatically terminate. If this
Lease is terminated pursuant to the foregoing provisions of this paragraph,
neither party hereto shall have any liability hereunder to the other on account
thereof (except that the Landlord shall promptly return to the Tenant any money
paid by the Tenant to the Landlord pursuant to the provisions of subsections 2.4
or 2.6).
5.2. Acceptance of Possession. Except for (a) latent defects or
------------------------
incomplete work which would not reasonably have been revealed by an inspection
of the Premises made for the purpose of discovering the same when the Landlord
delivers possession of the Premises to the Tenant, and (b) any other item of
incomplete work set forth on a "punch list" prepared by the Tenant and approved
in writing by the Landlord before such delivery of possession, by its assumption
of possession of the Premises the Tenant shall for all purposes of the
provisions of this Lease be deemed to have accepted them and to have
acknowledged them to be in the condition called for hereunder.
5.3. By Tenant. The Tenant shall not make any alteration, addition or
---------
improvement to the premises without first obtaining the Landlord's written
consent thereto. If the Landlord consents to any such proposed alteration,
addition or improvement, it shall be made at the Tenant's sole expense (and the
Tenant shall hold the Landlord harmless from any cost incurred on account
thereof), and at such time and in such manner as not unreasonably to interfere
with the use and enjoyment of the remainder of the Property by any tenant
thereof or other person.
5.4. Mechanics' Liens. The Tenant shall (a) immediately after it is
----------------
filed or claimed, bond or have released any mechanics', materialman's or other
lien filed or claimed against any or all of the Premises, the Property, or any
other property owned or leased by the Landlord, by reason of labor or materials
provided for the Tenant or any of its contractors or subcontractors (other than
labor or materials provided by the Landlord pursuant to the provisions of
subsection 5.1), or otherwise arising out of the Tenant's use or occupancy of
the Premises or any other portion of the Property, and (b) defend, indemnify and
hold harmless the Landlord against and from any and all liability, claim of
liability or expense (including, by way of example rather than of limitation,
that of reasonable attorneys' fees) incurred by the Landlord on account of any
such lien or claim.
5.5. Fixtures. Any and all improvements, repairs, alterations and all
--------
other property attached to used in connection with or otherwise installed within
the Premises by the Landlord of
the Tenant shall, immediately on the completion of their installation, became
the Landlord's property without payment therefor by the Landlord, except that
any machinery, equipment or fixtures installed by the Tenant and used in the
conduct of the Tenant's trade or business (rather than to service the Premises
or any of the remainder of the Building or the Property generally) shall remain
the Tenant's property.
Section 6. MAINTENANCE AND SERVICES.
6.1. Ordinary Services.
-----------------
6.1.1. The Landlord shall provide the following services to or
for the benefit of the Premises: (a) heating and air-conditioning (during those
respective seasons of the year in which they are necessary) for the comfortable
use and occupancy of the Premises, electricity and water suitable for the use of
the Premises in accordance with the provisions of Section 3, and automatic
elevator service within the Building, all between 8 o'clock A.M. and 6 o'clock
PM, Monday through Friday (except for legal holidays), of each week during the
Term; and
(b) janitorial service and trash removal service after 5
o'clock PM, Monday through Friday (except for legal holidays) of each week
during the Term.
6.1.2. Such services shall be furnished at the Landlord's expense
(subject to the operation and effect of the provisions of subsection 2.2).
6.2. Extraordinary Services.
----------------------
6.2.1. The Landlord shall not be obligated to provide to or for
the benefit of the Premises any of the services referred to in the provisions of
subsection 6.1 other than during the hours referred to therein. If the Landlord
elects in its sole discretion to provide such services other than during such
hours, and if the Tenant utilizes any of them, the Tenant shall pay to the
Landlord as Additional Rent the amount from time to time charged by the Landlord
therefor, as set forth on the written schedule of such charges most recently
provided by the Landlord to the Tenant.
6.2.2. The Tenant shall not, without first obtaining the
Landlord's written consent thereto, install within the Premises any electrical
machinery, appliances or equipment (including, by way of example rather than of
limitation, any electrical heating, cooking, water-heating or refrigeration
equipment, kitchen equipment, photocopying equipment, electronic data processing
machinery, reproduction equipment or punch-card machinery) which either (a) uses
electrical current in excess of 10 amperes at 110 volts or (b) in any way
increases the amount of electricity consumed upon the Premises beyond those
wattages specified herein below, and shall pay periodically as Additional Rent
the additional expense incurred by the Landlord as a result thereof, including
that resulting from any installation of such equipment. Without limiting the
generality of the foregoing provisions of this paragraph, the Landlord shall
have the right from time to time, using established calculation methods and/or
one or more temporary or permanent sub-meters or other devices to measure the
consumption of electricity upon the Premises. The cost of such calculations
and/or measuring shall be borne by the Landlord unless such measuring indicates
that the electricity being consumed upon the Premises exceeds (a) for lighting,
two (2) xxxxx per square foot of floor area within the Premises, or (b) for
other electrical consumption, one (1) watt per square foot of floor area within
the Premises, in which event the Tenant shall reimburse the Landlord for the
cost of such calculations and/or measuring, and shall in addition pay to the
Landlord monthly, as Additional Rent, the cost incurred by the Landlord
thereafter in furnishing such additional electricity to the Premises, which cost
shall be estimated on a monthly basis by the Landlord using its reasonable
discretion, and shall be adjusted at the end of each calendar year to reflect
the actual cost of such excess electricity incurred by the Landlord during such
calendar year.
6.3. Interruption. The Landlord shall have no liability to the Tenant
------------
on account of any failure, modification or interruption of any such service
which either (a) arises out of any of the causes enumerated in the provisions of
subsection 5.1, or (b) is required by applicable law
(including, by way of example rather than of limitation, any federal law or
regulation relating to the furnishing or consumption of energy or the
temperature of buildings).
6.4. Maintenance by Tenant. The Tenant shall maintain the
---------------------
nonstructural parts of the interior of the Premises in good repair and
condition, ordinary wear and tear accepted.
6.5. Maintenance by Landlord. The Landlord shall furnish, supply and
-----------------------
maintain in good order and repair (a) the roof, structure and remainder of the
exterior of the Building, (b) any and all hallways, stairways, lobbies,
elevators, heating and air-conditioning facilities, electrical, sanitary sewer
and water lines and facilities, restroom facilities, grounds, sidewalks and
parking areas (including the removal of snow from such sidewalks and parking
areas), and other common areas, all if located within the Building or the rest
of the Property but not within the Premises except for restroom and kitchen
facilities excluding Tenant provided kitchen appliances, all at the Landlord's
expense except as is set forth in the provisions of Section 2 or any other
provision of this Lease.
Section 7. LANDLORD'S RIGHT OF ENTRY.
The Landlord and its agents shall be entitled to enter the Premises at
any reasonable time (a) to inspect the Premises, (b) to exhibit the Premises to
any existing or prospective purchaser, Tenant or Mortgagee thereof, (c) to make
any alteration, improvement or repair to the Building or the Premises, or (d)
for any other purpose relating to the operation of maintenance of the Property;
provided, that the Landlord shall (a) unless doing so is impractical or
unreasonable because of emergency) give the Tenant at least twenty-four (24)
hours prior notice of its intention to enter the Premises, and (b) use
reasonable efforts to avoid thereby interfering more than is reasonably
necessary with the Tenant's use and enjoyment thereof.
Section 8. FIRE AND OTHER CASUALTIES.
8.1. General. If the Premises are damaged by fire or other casualty
-------
during the Term,
8.1.1. the Landlord shall restore the Premises with reasonable
promptness (taking into account the time required by the Landlord to effect a
settlement with, and to procure any insurance proceeds from, any insurer against
such casualty, but in any event within one hundred fifty (150) days after the
date of such casualty) to substantially their condition immediately before such
casualty, and may temporarily enter and possess any or all of the Premises for
such purpose (provided, that the Landlord shall not be obligated to repair,
restore or replace any fixture, improvement, alteration, furniture or other
property owned, installed or made by the Tenant), but
8.1.2. the times for commencement and completion of any such
restoration shall be extended for the period (not longer than sixty (60) days)
of any delay occasioned by the Landlord in doing so arising out of any of the
causes enumerated in the provisions of subsection 5.1. If the Landlord
undertakes to restore the Premises and such restoration is not accomplished
within the said period of one hundred fifty (150) days plus the period of any
extension thereof, as aforesaid, the Tenant may terminate this Lease by giving
written notice thereof to the Landlord within thirty (30) days after the
expiration of such period, as so extended; and
8.1.3. so long as the Tenant is deprived of the use of any or all
of the Premises on account of such casualty, the Base Rent and any Additional
Rent payable under the provisions of subsection 2.2 shall be abated in
proportion to the number of square feet of the Premises rendered substantially
unfit for occupancy by such casualty, unless, because of any such damage, the
undamaged portion of the Premises is made materially unsuitable for use by the
Tenant for the purposes set forth in the provisions of Section 3, in which event
the Base Rent and any such Additional Rent shall be abated entirely during such
period of deprivation.
8.2 Substantial Destruction. Anything contained in the foregoing
-----------------------
provisions of this Section to the contrary not withstanding.
8.2.1. if during the Term the Building is so damaged by fire or
other casualty that (a) either the Premises or (whether or not the Premises are
damaged) the Building is rendered substantially unfit for occupancy, as
reasonably determined by the Landlord, or (b) the Building is damaged to the
extent that the Landlord reasonably elects to demolish the Building, or if any
Mortgages requires that any or all of such insurance proceeds be used to retire
any or all of the debt secured by its Mortgage, then in any such case the
Landlord may elect to terminate this Lease as of the date of such casualty, by
giving written notice thereof to the Tenant within thirty (30) days after such
date; and
8.2.2. in such event, (a) the Tenant shall pay to the Landlord
the Base Rent and any Additional Rent payable by the Tenant hereunder and
accrued through the date of such termination, (b) the Landlord shall repay to
the Tenant any and all prepaid Rent for periods beyond such termination, and (c)
the Landlord may enter upon and repossess the Premises without further notice.
8.3. Tenant's Negligence. Anything contained in any provision of this
-------------------
Lease to the contrary notwithstanding, if any such damage to the Premises, the
Building or both are caused by or result from the negligent or intentionally
tortious act or omission of the Tenant, those claiming under the Tenant or any
of their respective officers, employees, agents or invitees.
8.3.1. the Rent shall not be suspended or apportioned as
aforesaid, and
8.3.2. except if and to the extent that the Tenant is released
from liability therefore pursuant to the provisions of subsection 4.4. the
Tenant shall pay to the Landlord upon demand, as Additional Rent, the cost of
(a) any repairs and restoration made or to be made as a result of such damage,
or (b) (if the Landlord elects not to restore the Building) any damage or loss
which the Landlord incurs as a result of such damage.
Section 9. CONDEMNATION.
9.1. Rights to Award.
---------------
9.1.1. If any or all of the Premises are taken by the exercise of
any power of eminent domain or are conveyed to or at the direction of any
governmental entity under a threat of any such taking (each of which is
hereinafter referred to as a "Condemnation"), the Landlord shall be entitled to
collect from the condemning authority thereunder the entire amount of any award
made in any such proceeding or as consideration for such conveyance, without
deduction therefrom for any leasehold or other estate held by the Tenant under
this Lease.
9.1.2. The Tenant hereby (a) assigns to the Landlord all of the
Tenant's right, title and interest, if any, in and to any such award; (b) waives
any right which it may otherwise have in connection with such Condemnation,
against the Landlord or such condemning authority, to any payment for (i) the
value of the then unexpired portion of the Term, (ii) leasehold damages, and
(iii) any damage to or diminution of the value of the Tenant's leasehold
interest hereunder or any portion of the Premises not covered by such
Condemnation; and (c) agrees to execute any and all further documents which may
be required to facilitate the Landlord's collection of any and all such awards.
9.1.3. Subject to the operation and effect of the foregoing
provisions of this Section, the Tenant may seek, in a separate proceeding, a
separate award on account of any damages or costs incurred by the Tenant as a
result of such Condemnation, so long as such separate award in no way diminishes
any award or payment which the Landlord would otherwise receive as a result of
such Condemnation.
9.2. Effect of Condemnation.
----------------------
9.2.1. If (a) all of the Premises are covered by a Condemnation,
or (b) any part of the Premises is covered by a Condemnation and the remainder
thereof is insufficient for the reasonable operation therein of the Tenant's
business, or (c) any of the Building is covered by a Condemnation and, in the
Landlord's reasonable opinion, it would be impractical to restore the remainder
thereof, or (d) any of the rest of the Property is covered by a Condemnation
and, in the Landlord's reasonable opinion, it would be impractical to continue
to operate the remainder of the Property thereafter, then, in any such event,
the Term shall terminate on the date on which possession of so much of the
Premises, the Building or the rest of the Property, as the case may be, as is
covered by such Condemnation is taken by the condemning authority thereunder,
and all Rent (including, by way of example rather than of limitation, any
Additional Rent payable under the provisions of subsection 2.2), taxes and other
charges payable hereunder shall be apportioned and paid to such date.
9.2.2. If there is a Condemnation and the Term does not terminate
pursuant to the foregoing provisions of this subsection, the operation and
effect of this Lease shall be unaffected by such Condemnation, except that the
Base Rent shall be reduced in proportion to the square footage of floor area, if
any, of the Premises covered by such Condemnation.
9.3. If there is a Condemnation, the Landlord shall have no liability
to the Tenant on account of any (a) interruption of the Tenant's business upon
the Premises, (b) diminution in the Tenant's ability to use the Premises, or (c)
other injury or damage sustained by the Tenant as a result of such Condemnation.
9.4. Except for any separate proceeding brought by the Tenant under
the provisions of paragraph 9.1.3, the Landlord shall be entitled to conduct any
such condemnation proceeding and any settlement thereof free of interference
from the Tenant, and the Tenant hereby waives any right which it otherwise has
to participate therein.
Section 10. ASSIGNMENT AND SUBLETTING.
10.1 The Tenant hereby acknowledges that the Landlord has entered into
this Lease because of the Tenant's financial strength, good will, ability and
expertise and that, accordingly, this Lease is one which is personal to the
Tenant, and agrees for itself and its successors and assigns in interest
hereunder that it will not (a) assign any of its rights under this Lease, or (b)
make or permit any total or partial sale, lease, sublease, assignment,
conveyance, license, mortgage, pledge, encumbrance or other transfer of any or
all of the Premises or the occupancy or use thereof (each of which is
hereinafter referred to as a "Transfer"), without first obtaining the Landlord's
written consent thereto (which consent may be given or withheld in the
Landlord's sole discretion and, if given, shall not constitute a consent to any
subsequent such Transfer, whether by the person hereinabove named as "the
Tenant" or by any such transferee). The Landlord shall be entitled, at its sole
discretion, to condition any such consent upon the entry by such person into an
agreement with (and in form and substance satisfactory to) the Landlord, by
which it assumes all of the Tenant's obligations hereunder. Any person to whom
any Transfer is attempted without such consent shall have no claim, right or
remedy whatsoever hereunder against the Landlord, and the Landlord shall have no
duty to recognize any person claiming under or through the same. No such action
taken with or without the Landlord's consent shall in any way relieve or release
the Tenant from Liability for the timely performances of all of the Tenant's
obligations hereunder.
10.2. Anything contained in the foregoing provisions of this Section to
the contrary notwithstanding, neither the Tenant nor any other person having an
interest in the possession, use or occupancy of the Premises or any other
portion of the Property shall enter into any lease, sublease, license,
concession or other agreement for the possession, use or occupancy of space in
the Premises or any other portion of the Property which provides for any rental
or other payment for such use, occupancy or utilization based in whole or in
part upon the net income or profits derived by any person from the space in the
Premises or other portion of the Property so leased, used or occupied (other
than any amount based on a fixed percentage or percentages of receipts or
sales).
Section 11. RULES AND REGULATIONS.
The Landlord shall have the right to prescribe, at its sole discretion,
reasonable rules and regulations (hereinafter referred to as "the Rules and
Regulations") having uniform applicability to all tenants of the Building
(subject to the provisions of their respective leases) and governing their use
and enjoyment of the Building and the remainder of the Property; provided, that
the Rules and Regulations shall not materially interfere with the Tenant's use
and enjoyment of the Premises, in accordance with the provisions of this Lease,
for the purpose enumerated in the provisions of Section 3. The Tenant shall
adhere to the Rules and Regulations and shall cause its agents, employees,
invitees, visitors and guests to do so. A copy of the Rules and Regulations in
effect on the date hereof is attached hereto as Exhibit C.
Section 12. SUBORDINATION; ATTORNMENT AND NON-DISTURBANCE.
12.1. Subordination. This Lease shall be subject and subordinate to the
-------------
lien, operation and effect of each first mortgage, first deed of trust, ground
lease and/or other, similar instrument of encumbrance heretofore or hereafter
covering any or all of the Premises or the remainder of the Property (and each
renewal, modification, consolidation, replacement or extension thereof), (each
of which is herein referred to as a "Mortgage"), all automatically and without
the necessity of any action by either party hereto.
12.2. Attornment and Non-disturbance. The Tenant shall, promptly at
------------------------------
the request of the Landlord or the holder of any first Mortgage (herein referred
to as "Mortgagee"), execute, enseal, acknowledge and deliver such further
instrument or instruments
12.2.1. evidencing such subordination as the Landlord or such
Mortgagee deems necessary or desirable, and
12.2.2. (at such Mortgagee's request) attorning to such
Mortgagee, provided that 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 rights hereunder, except on the occurrence of an Event of Default.
12.3. Anything contained in the provisions of this Section to the
contrary notwithstanding, any Mortgagee may at any time subordinate the lien of
its Mortgage to the operation and effect of this Lease without obtaining the
Tenant's consent thereto, by giving the Tenant written notice thereof, in which
event this Lease shall be deemed to be senior to such Mortgage without regard to
their respective date of execution, delivery and/or recordation among the Land
Records of the said County, and thereafter such Mortgagee shall have the same
rights as to this Lease as it would have had, were this Lease executed and
delivered before the execution of such Mortgage.
Section 13. DEFAULT.
13.1. Definition: As used in the provisions of this Lease, each of the
----------
following events shall constitute, and is hereinafter referred to as, an "Event
of Default".
13.1.1. If the Tenant fails to (a) pay any Rent or any other sum
which it is obligated to pay by any provision of this Lease, when and as due and
payable hereunder and without demand therefor, or (b) perform any of its other
obligations under the provisions of this Lease; or
13.1.2. if the Tenant (a) applies for or consents to the
appointment of a receiver, trustee or liquidator of the Tenant or of all or a
substantial part of its assets, (b ) files a voluntary petition in bankruptcy or
admits in writing its inability to pay its debts as they come due, (c) makes an
assignment for the benefit of its creditors, (d) files a petition or an answer
seeking a reorganization or an arrangement with creditors, or seeks to take
advantage of any insolvency
law, (e) performs any other act of bankruptcy, or (f) files an answer admitting
the material allegations of a petition filed against the Tenant in any
bankruptcy, reorganization or insolvency proceeding; or
13.1.3. if (a) an order, judgment or decree is entered by any
court of competent jurisdiction adjudicating the Tenant a bankrupt or an
insolvent, approving a petition seeking such a reorganization, or appointing a
receiver, trustee or liquidator of the Tenant or of all or a substantial part of
its assets, or (b) there otherwise commences as to the Tenant or any of its
assets any proceeding under any bankruptcy, reorganization, arrangement,
insolvency, readjustment, receivership or similar law, and if such order,
judgment, decree or proceeding continues unstayed for more than sixty (60)
consecutive days after any stay thereof expires; or
13.1.4. if the Tenant fails to occupy and assume possession of
the Premises within fifteen (15) days after the Commencement Date.
13.2. Notice to Tenant; Grace Period. Anything contained in the
------------------------------
provisions of this Section to the contrary not withstanding, on the occurrence
of an Event of Default the Landlord shall not exercise any right or remedy which
it holds under any provision of this Lease or applicable law unless and until
13.2.1. the Landlord has given written notice thereof to the
Tenant, and
13.2.2. the Tenant has failed, (a) if such Event of Default
consists of a failure to pay money, within five (5) days thereafter to pay all
of such money, or (b) if such Event of Default consists of something other than
a failure to pay money, within thirty (30) days thereafter actively, diligently
and in good faith to begin to cure such Event of Default and to continue
thereafter to do until it is fully cured; provided, that
13.2.3. no such notice shall be required, and the Tenant shall be
entitled to no such grace period, (a) in any emergency situation in which the
Landlord acts to cure such Event of Default pursuant to the provisions of
paragraph 13.3.5; or (b) more than twice during any twelve (12) month period, or
(c) if the Tenant has substantially terminated or is in the process of
substantially terminating its continuous occupancy and use of the Premises for
the purpose set forth in the provisions of Section 3, or (d) in the case of any
Event of Default enumerated in the provisions of paragraphs 13.1.2. or 13.1.3.
13.3. Landlord's Rights on Event of Default. On the occurrence of any
-------------------------------------
Event of Default, the Landlord may (subject to the operation and effect of the
provisions of subsection 13.2) take any or all of the following actions:
13.3.1. re-enter and repossess the Premises and any and all
improvements thereon and additions thereto provided such entrance is in a manner
consistent with applicable law.
13.3.2. declare the entire balance of the Rent for the remainder
of the Term to be due and payable, and collect such balance plus reasonable
costs of reletting the Premises and minus the rental income occurring during the
Tenant's lease term that Landlord reasonably expects to achieve by reletting the
Premises in any manner not inconsistent with applicable law;
13.3.3. terminate this Lease;
13.3.4. relet any or all of the Premises for the Tenant's account
for any or all of the remainder of the Term as hereinabove defined, or for a
period exceeding such remainder, in which event the Tenant shall pay to the
Landlord, at the times and in the manner specified by the provisions of Section
2, the Base Rent and any Additional Rent accruing during such remainder, less
any monies received by the Landlord, with respect to such remainder, from such
reletting, as well as the cost to the Landlord of any attorneys' fees or of any
repairs or other action (including those taken in exercising the Landlord's
rights under any provision of this Lease) taken by the Landlord on account of
such Event of Default;
13.3.5. cure such Event of Default in any other manner (after
giving the Tenant written notice of the Landlord's intention to do so except as
provided in paragraph 13.2.3), in which event the Tenant shall reimburse the
Landlord for all expenses incurred by the Landlord in doing so, plus interest
thereon at a lesser of the rate of twenty percent (20%) per annum or the highest
rate then permitted on account thereof by applicable law, which expenses and
interest shall be Additional Rent and shall be payable by the Tenant immediately
on demand therefor by the Landlord and/or
13.3.6. pursue any combination of such remedies and/or any other
remedy available to the Landlord on account of such Event of Default under
applicable law.
13.5. No Waiver. No action taken by the Landlord under the provisions
---------
of this Section shall operate as a waiver of any right which the Landlord would
otherwise have against the Tenant for the Rent hereby reserved or otherwise, and
the Tenant shall remain responsible to the Landlord for any loss and/or damage
suffered by the Landlord by reason of any Event of Default.
13.6. Default by Landlord. If the Landlord violates any of its
-------------------
obligations under the provisions of this Lease, the Tenant may (subject to the
operation and effect of the provisions of paragraph 2.3.3) exercise any right or
remedy which it holds on account thereof hereunder, at law or in equity;
provided, that if any or all of the Premises is then subject to any first
Mortgage, the Tenant shall not exercise any of its rights or remedies on account
thereof unless and until it has given written notice of its intention to do so,
by certified or registered mail, return receipt requested, to the Mortgagee
under such first Mortgage, specifying therein the nature of such default in
reasonable detail, and unless such Mortgagee has not cured such default on the
Landlord's behalf within thirty (30) days after such notice is given.
Section 14. ESTOPPEL CERTIFICATE.
The Tenant shall from time to time, within five (5) days after being
requested to do so by the Landlord or any Mortgagee, execute, enseal,
acknowledge and deliver to the Landlord (or, at the Landlord's request, to any
existing or prospective purchaser, transferee, assignee or Mortgagee of any or
all of the Premises, the Property, any interest therein or any of the Landlord's
rights under this Lease) an instrument in recordable form,
14.1. certifying (a) that this Lease is unmodified and in full force
and effect (or, if there has been any modification thereof, that it is in full
force and effect as so modified, stating therein the nature of such
modification); (b) as to the dates to which the Base Rent and any Additional
Rent and other charges arising hereunder have been paid; (c) as to the amount of
any prepaid Rent or any credit due to the Tenant hereunder; (d) that the Tenant
has accepted possession of the Premises, and the date on which the Term
commenced; (e) as to whether, to the best knowledge, information and belief of
the signer of such certificate, the Landlord or the Tenant is then in default in
performing any of its obligations hereunder (and, if so, specifying the nature
of each such default); and (f) as to any other fact or condition reasonably
requested by the Landlord or such other addressee; and
14.2. acknowledging and agreeing that any statement contained in such
certificate may be relied upon by the Landlord and any such other addressee.
Section 15. QUIET ENJOYMENT.
The Landlord hereby covenants that the Tenant, on paying the Rent and
performing the covenants set forth herein, shall peaceably and quietly hold and
enjoy, throughout the Term, (a) the Premises, and (b) such rights as the Tenant
may hold hereunder with respect to the remainder of the Property.
Section 16. NOTICES.
Any notice, demand, consent, approval, request or other communication or
document to be provided hereunder to a party hereto shall be (a) given in
writing, and (b) deemed to have been given (i) forty-eight (48) hours after
being sent as certified or registered mail in the United States mails, postage
prepaid, return receipt requested, to the address of such party set forth
hereinabove or to such other address in the United States of America as such
party may designate from time to time by notice to the other, or (ii) (if such
party's receipt thereof is acknowledged in writing) upon its hand or other
delivery to such party.
Section 17. GENERAL.
17.1. Effectiveness. This Lease shall become effective upon and only
-------------
upon its execution and delivery by each party hereto.
17.2. Complete Understanding. This Lease represents the complete
----------------------
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior written or oral negotiations, representations, warranties,
statements or agreements between the parties hereto as to the same.
17.3. Amendment. This Lease may be amended by and only by an
---------
instrument executed and delivered by each party hereto.
17.4. Applicable Law. This Lease shall be given effect and construed by
--------------
application of the law of Maryland, and any action or proceeding arising
hereunder shall be brought in the courts of Maryland; provided, that if such
action or proceeding arises under the Constitution, laws or treaties of the
United States of America, or if there is a diversity of citizenship between the
parties thereto, so that it is to be brought in a United States District Court,
it shall be brought in the United States District Court for the District of
Maryland.
17.5. Waiver. The Landlord shall not be deemed to have waived the
------
exercise of any right which it holds hereunder unless such waiver is made
expressly and in writing (and no delay or omission by the Landlord in exercising
any such right shall be deemed to be a waiver of its future exercise). No such
waiver as to any instance involving the exercise of any such right shall be
deemed a waiver as to any other such instance, or any other such right.
17.6. Time of Essence. Time shall be of the essence of this Lease.
---------------
17.7. Headings. The headings of the Sections, subsections, paragraphs
--------
and subparagraphs hereof are provided herein for and only for convenience of
reference, and shall not be considered in construing their contents.
17.8. Construction. As used herein,
------------
17.8.1. the term "person" means a natural person, a trustee, a
corporation, a partnership and any other form of legal entity; and
17.8.2. all references made (a) in the neuter, masculine or
feminine gender shall be deemed to have been made in all such genders, (b) in
the singular or plural number shall be deemed to have been made, respectively,
in the plural or singular number as well, and (c) to any Section, subsection,
paragraph or subparagraph shall, unless therein expressly indicated to the
contrary, be deemed to have been made to such Section, subsection, paragraph or
subparagraph of this Lease.
17.9. Exhibits. Each writing or plat referred to herein as being
--------
attached hereto as an exhibit or otherwise designated herein as an exhibit
hereto is hereby made a part hereof.
17.10. Severability. No determination by any court, governmental body or
------------
otherwise that any provision of his Lease or any amendment hereof is invalid or
unenforceable in any instance shall affect the validity or enforceability of (a)
any other such provision, or (b) such
provision in any circumstance not controlled by such determination. Each such
provision shall be valid and enforceable to the fullest extent allowed by, and
shall be construed wherever possible as being consistent with, applicable law.
17.11. Definition of "the Landlord".
----------------------------
17.11.1 As used herein, the term "the Landlord" means the person
hereinabove named as such, and its heirs, personal representatives, successors
and assigns (each of whom shall have the same rights, remedies, powers,
authorities and privileges as it would have had, had it originally signed this
lease as the Landlord).
17.11.2. No person holding the Landlord's interest hereunder
(whether or not such person is named as "the Landlord" herein) shall have any
liability hereunder after such person ceases to hold such interest, except for
any such liability accruing while such person holds such interest.
17.11.3. Neither the Landlord nor any principal of the Landlord,
whether disclosed or undisclosed, shall have any personal liability under any
provision of this Lease. If the Landlord defaults in performing any of its
obligations hereunder or otherwise, the Tenant shall look solely to the
Landlord's equity, interest and rights in the Property to satisfy the Tenant's
remedies on account thereof.
17.12. Definition of "the Tenant". As used herein, the term "the Tenant"
--------------------------
means each person hereinabove named as such and such person's heirs, personal
representatives, successors and assigns, each of whom shall have the same
obligations, liabilities, rights and privileges as it would have possessed had
it originally executed this Lease as the Tenant; provided, that no such right or
privilege shall inure to the benefit of any assignee of the Tenant, immediate or
remote, unless the assignment to such assignee is made in accordance with the
provisions of Section 10. Whenever two or more persons constitute the Tenant,
all such persons shall be jointly and severally liable for performing the
Tenant's obligations hereunder.
17.13. Commissions. Each party hereto hereby represents and warrants to
-----------
the other that, in connection with the leasing of the Premises hereunder, the
party so representing and warranting has not dealt with any real estate broker,
agent or finder, and there is no commission, charge or other compensation due on
account thereof. Each party hereto shall indemnify and hold harmless the other
against and from any inaccuracy in such party's representation except XxXxxx and
Co.
17.14. Recordation. This Lease may not be recorded among the Land
-----------
Records of the said County or among any other public records, without the
Landlord's prior express, written consent thereto, and any attempt by the Tenant
to do so without having obtained the Landlord's consent thereto shall constitute
an Event of Default hereunder. If this Lease is recorded by either party hereto,
such party shall bear the full expense of any transfer, documentary stamp or
other tax, and any recording fee, assessed in connection with such recordation;
provided, that if under applicable Maryland or other law the recordation of this
Lease hereafter becomes necessary in order for this Lease to be or remain
effective, the Tenant shall bear the full expense of any and all such taxes and
fees incurred in connection therewith.
17.15. Approval by Mortgagees. Anything contained in the provisions of
----------------------
this Lease to the contrary notwithstanding, the Landlord shall be entitled at
any time hereafter but before the Landlord delivers possession of the Premises
to the Tenant hereunder, to terminate this Lease by giving written notice
thereof to the Tenant, if any Mortgagee fails to approve this Lease for purposes
of the provisions of its Mortgage, and in the manner set forth therein.
IN WITNESS WHEREOF, each party hereto has executed and ensealed this
Lease or caused it to be executed and ensealed on its behalf by its duly
authorized representatives, the day and year first above written.
WITNESS ROCKVILLE OFFICE/INDUSTRIAL ASSOCIATES
Not legible By: /s/ Xxxxxx X. Xxxxxx (SEAL)
----------------------------------- --------------------
The Landlord
WITNESS or ATTEST: COMTEQ FEDERAL, INC.
-------------------
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxx (SEAL)
----------------------------------- -----------------
The Tenant
AGREEMENT OF LEASE
by and between
ROCKVILLE OFFICE / INDUSTRIAL ASSOCIATES
and
COMTEQ FEDERAL, INC.
1. Insert the following language at the end of Paragraph 2 of the
Lease Agreement:
"Tenant acknowledges that it has inspected and accepts the Premises, and
specifically the Building and improvements comprising the same in their present
condition as suitable for the purpose for which the Premises are leased.
Execution of the Lease by Tenant shall be deemed conclusively to establish that
said Building and other improvements are in good and satisfactory condition as
of when the execution was made. Tenant further acknowledges that no
representations as to the repair of the Premises, nor promises to alter, removal
or improve the Premises have been made by Landlord, unless such are expressly
set forth in this Lease. If this Lease is executed before the Premises become
vacant or otherwise occupant of the Premises holds over, and Landlord cannot
acquire possession of the Premises prior to the date above recited as to the
Commencement Date of this Lease, Landlord shall not be deemed to be in default
hereunder, and Tenant agrees to accept possession which date shall henceforth be
deemed the "Commencement Date"; and Landlord hereby waives payment of rent
covering any period prior to tendering of possession to Tenant hereunder; and
the term shall commence on the new Commencement Date as if it were the original
commencement date. If, however, Landlord cannot acquire possession of the
Premises and tender possession thereof to the Tenant by March 1, 1994, the
Tenant shall be entitled at any time thereafter to Terminate this Lease by
giving written notice thereof to the Landlord; and further provided, that if the
term has not commenced by April 1, 1994, this Lease shall automatically
terminate. If this Lease is terminated pursuant to the foregoing provisions of
this paragraph, neither party hereto shall have any liability hereunder to the
other on account thereof.
2. Waiver of Trail by Jury. Landlord and Tenant hereby waive trial
-----------------------
by jury in any action, proceeding or counterclaim involving any matter
whatsoever arising out of, or in any way connected with this Lease, the
relationship of Landlord and Tenant hereunder, Tenant's use or occupancy of the
Lease Premise, and/or any claim of injury or damage.
3. Hazards Waste. The term "Hazardous Substances", as used in this
-------------
Lease shall mean pollutants, contaminants, toxic or hazardous waste, or any
other substances, the use and/or removal of which is restricted, regulated,
prohibited or penalized by any "Environmental Law" which term shall mean any
federal, state or local law, ordinance, or other statute of a governmental or
quasi-governmental authority. Tenant hereby agrees that (i) no activity will be
conducted on the premises that will produce any Hazardous Substance, except for
such activities that are part of the ordinary course of Tenant's business
activities (the "Permitted Activities") provided said Permitted Activities are
conducted in accordance with all Environmental Laws and have been approved in
advance in writing by Landlord; (ii) the premises will not be used in any manner
for the storage of any Hazardous Substance except for the temporary storage of
such materials that are used in the ordinary course of Tenant's business (the
"Permitted Materials:) provided such Permitted Materials are properly stored in
a manner and location meeting all Environmental Laws and provided that such
storage and location are approved in advance in writing by Landlord; (iii)
Tenant will not permit any Hazardous Substances to be brought onto the premises,
except for the Permitted Materials described above, and if so brought or found
located thereon, the same shall be immediately removed, with proper disposal,
and all required cleanup procedures shall be diligently undertaken pursuant to
all Environmental Laws. Landlord
or Landlord's representative shall have the right but not the obligation to
enter the premises for the purpose of inspecting the storage, use of disposal of
Permitted Materials to insure compliance with all Environmental Laws. Should it
be determined, in Landlord's sole opinion, that said Permitted Materials are
being improperly stored, used, or disposed of, then Tenant shall promptly
reimburse Landlord for any and all costs associated with said work. If at any
time during or after the term of the Lease, the premises is found to be so
contaminated or subject to said conditions, Tenant shall diligently institute
proper and thorough cleanup procedures at Tenant's sole cost, and Tenant agrees
to indemnify and hold Landlord harmless from all claims, demands, actions,
liabilities, costs, expenses, damages and obligations of any nature arising from
or as a result of the use of the premises by Tenant. Landlord shall also have
the right to immediately terminate this Lease and dispossess Tenant should
Tenant fail to properly discharge its responsibilities of Tenant under this
Section shall survive the termination or expiration of this Lease. As of the
date hereof, the Landlord represents that it has not been informed by any
governmental agency that the property is in violation of any environmental law.
4. Improvements to the Premises. Landlord, at Landlord's sole cost
----------------------------
and expense, will complete the following improvements to the Premises prior to
the Commencement Date:
. Shampoo the carpet
. Clean and wax tile areas
. Paint the Premises with one (1) coat of Xxxxx (or equivalent
latex paint to match existing color
. Provide new vinyl base along demising wall as shown in Exhibit
B, herein.
. Remove approximately 20 linear feet of existing 1/2 wall as
shown crosshatched in Exhibit B.
. Patch carpeting in areas effected by removal of 1/2 wall.
. Replace damaged or stained ceiling tiles and window blinds.
Otherwise, the Premises will be delivered "AS IS" and in the
configuration as shown in Exhibit B. All other improvements to the Premises
shall be made at Tenant's sole cost and expense and under the terms of this
Lease.
5. Rental Abatement. Notwithstanding the foregoing, upon
-----------------
substantial completion of above improvements to the Premises as required by the
provisions of the Lease, the term shall begin as provided therein, but the rent
shall be waived for 14 days thereafter.
AGREEMENT OF LEASE
by and between
ROCKVILLE OFFICE / INDUSTRIAL ASSOCIATES
and
COMTEQ FEDERAL, INC.
EXHIBIT C
Current Rules and Regulations
1. The sidewalks, lobbies, passages, elevators and stairways shall not
be obstructed by the Tenant and used by the Tenant for any purpose other than
ingress and egress from and to the Tenant's offices. The Landlord shall in all
cases retain the right to control or prevent access thereto by any person whose
presence, in the Landlord's judgment, would be prejudicial to the safety, peace,
character or reputation of the building or of any tenant of the Property.
2. The toilet rooms, water closets, sinks, faucets, plumbing and other
service apparatus of any kind shall not be used by the Tenant for any purpose
other than those for which they were installed, and no sweepings, rubbish, rags,
ashes, chemicals or other refuse or injurious substances shall be placed therein
or used in connection therewith by the Tenant, or left by the Tenant in the
lobbies, passages, elevators or stairways of the Building.
3. No skylight, window, door or transom of the Building shall be covered
or obstructed by the Tenant, and no window shade, blind, curtain, screen, storm
window, awning or other material shall be installed or placed on any window or
in an window space, except as approved in writing by the Landlord. If the
Landlord has installed or hereafter installs any shade, blind or curtain in the
Premises, the Tenant shall not remove it without first obtaining the Landlord's
written consent thereto.
4. No sign, lettering, insignia, advertisement, notice or other thing
shall be inscribed, painted, installed, erected or placed in any portion of the
Premises which may be seen from outside the Building, or on any window, window
space or other part of the exterior or interior of the Building, unless first
approved in writing by the Landlord. Names on suite entrances shall be provided
by and only by the Landlord and at the Tenant's expense, using in each instance
lettering of a design and in a form consistent with the other lettering in the
Building, and first approved in writing by the Landlord. The Tenant shall/will
not erect any stand, booth or showcase or other article or matter in or upon the
Premises and/or the Building without first obtaining the Landlord's written
consent thereto.
5. The Tenant shall not place any additional lock upon any door within
the Premises or elsewhere upon the Property, and shall surrender all keys for
all such locks at the end of the Term. The Landlord shall provide the Tenant
with one set of keys to the Premises when the Tenant assumes possession thereof.
6. The delivery of towels, ice, water, food, beverages, newspapers and
other supplies, equipment and furniture will be permitted only under the
Landlord's direction and control.
7. The Tenant shall not do or permit to be done anything which obstructs
or interferes with the rights of any other Tenant of the Property. The Tenant
shall not keep anywhere within the Property any matter having an offensive odor,
or any kerosene, gasoline, benzine, camphene,
fuel or other explosive or highly flammable material. No bird, fish or other
animal shall be brought into or kept in or about the Premises.
8. So that the Premises may be kept in a good state of preservation and
cleanliness, the Tenant shall, while in possession of the Premises, permit only
the Landlord's employees and contractors to clean the Premises unless prior
thereto the Landlord otherwise consents in writing. The Landlord shall not be
responsible to the Tenant for any damage done to any furniture or other property
of the Tenant or any other person caused by any of the Landlord's employees or
any other person, for any loss sustained by any of the Tenant's employees, or
for any loss of property of any kind in or from the Premises, however occurring
with the exception of instances where such damage is a result of Landlord's
gross negligence or willful misconduct. The Tenant shall see each day that the
windows are closed and the doors securely locked before leaving the Premises,
and that all lights and standard office equipment within the Premises are turned
off.
9. If the Tenant desires to install signaling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices within the Premises, the
Landlord shall direct where and how they are to be installed and, except as so
directed, no installation, boring or cutting shall be permitted. The Landlord
shall have the right (a) to prevent or interrupt the transmission of excessive,
dangerous or annoying current of electricity or otherwise into or through the
Building or the Premises, (b) to require the changing of wiring connections or
layout at the Tenant's expense, to the extent that the Landlord may deem
necessary, (c) to require compliance with such reasonable rules as the Landlord
may establish relating thereto, and (d) in the event of noncompliance with such
requirements or rules, immediately to cut wiring or do whatever else it
considers necessary to remove the danger, annoyance or electrical interference
with apparatus in any part of the Building. Each wire installed by the Tenant
must be clearly tagged at each distributing board and junction box and elsewhere
where required by the Landlord, with the number of the office to which such wire
leads and the purpose for which it is used, together with the name of the Tenant
or other concern, if any, operating or using it.
10. A director will be provided by the Landlord on the ground floor of
the Building, on which the Tenant's name may be placed.
11. No furniture, package, equipment, supplies or merchandise may be
received in the Building, or carried up or down in the elevators or stairways,
except during such hours as are designated for such purpose of the Landlord, and
only after the Tenant gives notice thereof to the Landlord. The Landlord shall
have the exclusive right to prescribe the method and manner in which any of the
same is brought into or taken out of the Building, and the right to exclude from
the Building any heavy furniture, safe or other article which may create a
hazard and to require it to be located at a designated place in the Premises.
The Tenant shall not place any weight anywhere beyond the safe carrying capacity
of the Building. The cost of repairing any damage to the Building or any other
part of the Property caused by taking any of the same in or out of the Premises,
or any damage caused while it is in the Premises or the rest of the Building,
shall be borne by the Tenant.
12. Without the Landlord's prior written consent, (a) nothing shall be
fastened to (and no hole shall be drilled, or nail or screw driven into) any
wall or partition with the exception of pictures, posters, etc., (b) no wall, or
partition shall be painted, papered or otherwise covered or moved in any way or
marked or broken, (c) no connection shall be made to any electrical wire for
running any fan, motor or other apparatus, device or equipment, (d) no machinery
of any kind of other than customary small business machinery shall be allowed in
the Premises, (e) no switchboard or telephone wiring or equipment shall be
placed anywhere other than where designated by the Landlord, and (f) no mechanic
shall be allowed to work in or about the Building other than one employed by the
Landlord.
13. The Tenant shall have access to the Premises at all times. The
Landlord shall in no event be responsible for admitting or excluding any person
from the Premises. In case of invasion, hostile attack, insurrection, mob
violence, riot, public excitement or other commotion, explosion, fire or any
casualty, the Landlord shall have the right to bar or limit access to the
Building to protect the safety of occupants of the Property, or any property
within the Property.
14. The Landlord shall have the right to rescind, suspend or modify the
Rules and Regulations and to promulgate such other Rules or Regulations as, in
the Landlord's reasonable judgment, are from time to time needed for the safety,
care, maintenance, operation and cleanliness of the Building, or for the
preservation of good order therein. Upon the Tenant's having been given notice
of the taking of any such action, the Rules and Regulations as so rescinded,
suspended, modified or promulgated shall have the same force and effect as if in
effect at the time at which the Tenant's lease was entered into (except that
nothing in the Rules and Regulations shall be deemed in any way to alter or
impair any provision of such lease).
15. The use of any room within the Building as sleeping quarters is
strictly prohibited at all times.
16. The Tenant shall keep the windows and doors of the Premises
(including those opening on corridors and all doors between rooms entitled to
receive heating or air conditioning service and rooms not entitled to receive
such service), closed while the heating or air conditioning system is operating,
in order to minimize the energy used by, and to conserve the effectiveness of,
such systems. The Tenant shall comply with all reasonable Rules and Regulations
from time to time promulgated by the Landlord with respect to such systems or
their use.
17. Nothing in these Rules and Regulations shall give any Tenant any
right or claim against the Landlord or any other person if the Landlord does not
enforce any of them against any other tenant or person (whether or not the
Landlord has the right to enforce them against such tenant or person), and no
such nonenforcement with respect to any tenant shall constitute a waiver of the
right to enforce them as to the Tenant or any other tenant or person.
LANDLORD'S LIEN SUBORDINATION
THE STATE OF MARYLAND
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF XXXXXXXXXX
THIS SUBORDINATION AGREEMENT (herein the "Agreement") is made as of
___________________________________, ____________ by and between ROCKVILLE
OFFICE/INDUSTRIAL ASSOCIATES, a Limited Partnership (herein "Landlord:) and IBM
Credit Corporation (herein "Secured Party"), and COMTEQ FEDERAL, INC. (herein
"Tenant").
WHEREAS, Landlord and Tenant have executed that certain lease agreement
dated December 14, 1993, a copy of which is attached as Exhibit "A" (herein the
"Lease"), for the premises located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000 and more particularly described therein (herein the "Leased Premises");
WHEREAS, Tenant has granted security interests in all of its present and
future accounts, inventory, documents, instruments, general intangibles, chattel
paper and proceeds thereof (all of the foregoing herein called the "Property")
to Secured Party to secure payment of any and all indebtedness, obligations and
liabilities of Tenant to Secured Party, now existing or hereafter arising, of
whatever kind (herein, the "Debt"); and
WHEREAS, all or part of the Property has been or will be stored or
installed in the Leased Premises;
NOW, THEREFORE, for and in consideration of the mutual promises
contained herein and the Secured Party's reliance upon the afore described
security interest, the receipt and sufficiency of which are hereby acknowledged
by the Landlord and the Secured Party, it is hereby agreed by the Landlord and
the Secured Party as follows:
1. Landlord subordinates any and all liens, claims, security
interests, rights and other encumbrances, contractual, consensual,
express, implied, statutory or otherwise, the Landlord may now or
hereafter have to the Property by virtue of any tenancy or lease
agreement as well as any and all amendments thereto, whether
arising by operation of law or equity or otherwise, to the security
interest and/or other interests of the Secured Party in the
Property.
2. The Secured Party is expressly authorized to enter upon the Leased
Premises between the hours of 8:30 a.m. and 5:30 p.m., Monday
through Friday, to remove the Property therefrom one (1) day after
written notice of such intended entry and removal is given to
Landlord. Landlord agrees to provide Secured Party sufficient
access to and from the Leased Premises for the removal of the
Property. Landlord or Landlord's agent must be present when removal
of the Property is being accomplished. Notwithstanding the
foregoing, in the event of Tenant's default under its Lease
Agreement, Secured Party has the right to cure the same or to
remove the Property to which it has any claim within fifteen (15)
days of the sending of a written notice form Landlord to remove the
Property. If Secured Party does not remove the Property with that
time, and should Landlord elect to remove the Property and store
the same, such failure shall not impair Secured Party's rights
hereunder, but Landlord may remove the Property and store it,
subject to the terms of the Lease, and if such removal and storage
is permitted thereunder, then the cost thereof shall be borne
(subject to the provisions of Section 8 hereof) by Tenant.
3. Nothing herein contained shall release the Secured Party from, and
the Secured Party expressly agrees to be responsible for, the
reasonable cost of any repairs as a result of the Secured Party's
entry of the Leased Premises and removal of the Property. Secured
Party shall reimburse the Landlord for the amount of any such
repairs following notice of such repairs from the Landlord.
4. Secured Party, Landlord and Tenant agree that the subordination of
Landlord's right described herein (a) shall terminate upon payment
in full of the Debt (b) shall extend to any extensions or renewals
of the same and (c) is intended to include subordination of, and
shall subordinate Landlord's rights with respect to, any mechanic's
liens, which may be placed upon the Leased Premises due to any
alterations, modifications, improvements or other work at or upon
the Leased Premises by Tenant, or its employees, agents,
contractors or materialmen.
5. Failure to remove the Property as described in paragraph 2 above
shall not render this Agreement null or void. Nothing in this
Agreement shall entitle the Secured Party to occupy the Leased
Premises for or during any time in which the Tenant is not entitled
to occupy the Leased Premises pursuant to the Lease, unless Secured
Party has cured any default. Landlord agrees not to sell or
otherwise dispose of the Property (other than to store the
Property, if Landlord so chooses) for so long as Secured Party
shall have a security interest or other claim in the Property
without first giving Secured Party at least 15 days notice of its
intention to do so, and, in the event of any sale or disposition by
Landlord following any such notice, the title transferred by
Landlord pursuant to such sale shall be and remain subject to the
superior lien of Secured Party. Secured Party shall have right of
entry in all storage areas, upon prior notice to Landlord and
Landlord shall notify Secured Party of the location of storage.
Landlord and Secured Party shall be present for removal from
storage of any of the Property.
6. Any notice pursuant to this Agreement shall be deemed to have been
given, when received at the following addresses:
SECURED PARTY: IBM Credit Corp.
0000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Attn: Credit Manager
LANDLORD: Rockville/Office Industrial Associates
c/o Xxxxxxxx Xxxx NE, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
7. In the event Secured Party conducts a foreclosure sale on the
Property and purchases the Property at such foreclosure sale,
Secured Party shall, if the Property has not previously been
removed by Secured Party, either (i) remove the Property from the
Premises (or, if the Property has been moved by Landlord, from the
storage area) within 15 days after the date of such sale, or (ii)
pay Landlord rental for the occupation of such space, on a month to
month basis, until the Property has been removed by Secured Party,
at the then existing monthly rental rate for the Premises under the
Lease (or any arm's length extension thereof executed without other
consideration); provided, however, that Secured Party shall not be
-----------------
liable for
any such rental for any period during which Secured Party is
prohibited from removing the Property by act or omission of
Landlord, any bankruptcy stay, injunction, restraining order or
other judicial process or any other reason beyond Secured Party's
control.
8. Landlord hereby certifies that Tenant is not, and within the last
30 days has not been, in default under the terms of any agreement
with Landlord with respect to the rental of the Leased Premises.
9. The undersigned certifies that he has the authority and power to
execute this agreement and bind the Landlord to the agreements
herein contained and that the Landlord has not assigned or granted
a security interest in the rights subordinated herein to any other
person.
This Agreement shall be binding upon and inure to the benefit of heirs,
representatives, successors and assigns of the Landlord and the Secured Party.
The Landlord shall notify any purchaser of the Leased Premises and any
subsequent mortgagee or other encumbrance holder of the existence of this
Agreement as is appropriate in the circumstances.
SECURED PARTY: TENANT:
IBM CREDIT CORPORATION COMTEQ FEDERAL, INC.
By: Not legible By: /s/ Xxxx Xxxxxx
-------------------------------- -------------------------------
_____________________________________
Title: A.O.M. Title: President
------------------------------ ----------------------------
LANDLORD:
ROCKVILLE OFFICE/INDUSTRIAL
ASSOCIATES
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Title: Managing General Partner
------------------------
