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OFFICE BUILDING LEASE
FOR
OPTICAL TECHNOLOGY GROUP, INC.
ONE DEMOCRACY PLAZA
SUITES 205, 803, 805 AND 809
XXXXXXXX, XXXXXXXX 00000
XXXXXXX X. XXXXX MANAGEMENT, INC.
0000 XXXXXXX XXXXX
XXXXXXX XXXX
XXXXXXXXX, XXXXXXXX 00000
[XXXXX LOGO]
XXXXXXX X. XXXXX COMPANIES
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TABLE OF CONTENTS
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SPECIFIC AND GENERAL PROVISIONS
PAGE
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1. SPECIFIC PROVISIONS ............................................................... 1
2. RENT .............................................................................. 4
2.1 Base Annual Rent ........................................................... 4
2.2 Additional Rent ............................................................ 4
(a) Real Estate Taxes ...................................................... 4
(b) Operating Expenses ................................................. 4
(c) CPI ................................................................ 4
(d) Changes in Landlord's Fiscal Year .................................. 4
2.3 Additional Rent Estimates and Adjustments .............................. 4
2.4 Rent Adjustment Limit .................................................. 5
2.5 Survival of Rent Obligations ........................................... 5
2.6 Pro Rata Share ......................................................... 5
2.7 Prorated Rent .......................................................... 5
2.8 Applications of Rent ................................................... 5
2.9 Late Payment Fee ....................................................... 5
2.10 Other Tenant Costs and Expenses ........................................ 5
3. CONSTRUCTION OF PREMISES AND OCCUPANCY ............................................ 6
3.1 Tenant Plans, Construction and Rent Liability .......................... 6
3.2 Possession ............................................................. 6
3.3 Occupancy Permits ...................................................... 6
4. SUBLETTING AND ASSIGNMENT ......................................................... 6
4.1 Consent ................................................................ 6
4.2 Recapture of Premises .................................................. 6
4.3 Excess Rent ............................................................ 7
4.4 Tenant Liability ....................................................... 7
5. SERVICES AND UTILITIES ............................................................ 7
5.1 Building Standard Services and Utilities ............................... 7
5.2 Overtime Services ...................................................... 7
5.3 Excessive Electrical Usage ............................................. 7
5.4 Excessive Heat Generation .............................................. 7
5.5 Security ............................................................... 8
6. USE AND UPKEEP OF PREMISES ........................................................ 8
6.1 Use .................................................................... 8
6.2 Illegal and Prohibited Uses ............................................ 8
6.3 Insurance Rating ....................................................... 8
6.4 Alterations ............................................................ 8
6.5 Maintenance By Landlord ................................................ 9
6.6 Signs & Advertising .................................................... 9
6.7 Excessive Floor Load ................................................... 9
6.8 Moving & Deliveries .................................................... 9
6.9 Rules and Regulations .................................................. 9
6.10 Tenant Maintenance & Conditions of Premises Upon Surrender ............. 10
6.11 Tenant Equipment ....................................................... 10
7. ACCESS ............................................................................ 10
7.1 Landlord's Access ...................................................... 10
7.2 Restricted Access ...................................................... 10
8. LIABILITY ......................................................................... 10
8.1 Personal Property ...................................................... 10
8.2 Criminal Acts of Third Parties ......................................... 10
8.3 Public Liability ....................................................... 10
8.4 Tenant Insurance ....................................................... 10
9. DAMAGE ............................................................................ 11
9.1 Damages Caused by Tenant ............................................... 11
9.2 Fire or Casualty Damage ................................................ 11
9.3 Untenantability ........................................................ 11
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10. CONDEMNATION ...................................................................... 11
10.1 Landlord Rights to Award ............................................... 11
10.2 Tenant Right to File Claim ............................................. 12
11. BANKRUPTCY ........................................................................ 12
11.1 Events of Bankruptcy ................................................... 12
11.2 Landlord's Remedies .................................................... 12
12. DEFAULTS & REMEDIES ............................................................... 13
12.1 Default ................................................................ 13
12.2 Remedies ............................................................... 13
12.3 Landlord's Right to Relet .............................................. 13
12.4 Recovery of Damages .................................................... 13
12.5 Waiver ................................................................. 13
12.6 Anticipatory Repudiation ............................................... 14
12.7 Tenant Abandonment of Premises ......................................... 14
13. SUBORDINATION ..................................................................... 14
13.1 Subordination .......................................................... 14
13.2 Estoppel Certificate ................................................... 14
13.3 Attornment ............................................................. 15
13.4 Mortgagee Rights ....................................................... 15
14. TENANT HOLDOVER ................................................................... 15
14.1 With Landlord Consent .................................................. 15
14.2 Without Landlord Consent ............................................... 15
15. SECURITY DEPOSIT .................................................................. 16
16. QUIET ENJOYMENT ................................................................... 16
17. SUCCESSORS ........................................................................ 16
18. WAIVER OF JURY TRIAL .............................................................. 16
19. REASONABLENESS OF LANDLORD AND TENANT ............................................. 16
20. PRONOUNS & DEFINITIONS ............................................................ 16
21. NOTICES ........................................................................... 16
21.1 Addresses for Notices .................................................. 16
21.2 Effective Date of Notice ............................................... 16
22. EXHIBITS; SPECIAL PROVISIONS ...................................................... 16
22.1 Incorporation in Lease ................................................. 16
22.2 Conflicts .............................................................. 17
23. CAPTIONS .......................................................................... 17
24. ENTIRE AGREEMENT; MODIFICATION .................................................... 17
25. SEVERABILITY ...................................................................... 17
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This Lease, made this 25th day of January, 1996, between FIRST ROCK
SPRING PARK LIMITED PARTNERSHIP, a Maryland 1imited partnership, (hereinafter
referred to as "Landlord"), and OPTICAL TECHNOLOGY GROUP, INC., a Maryland
corporation, (hereinafter referred to as "Tenant").
Landlord, for and in consideration of the covenants and agreements set
forth hereinafter, leases to Tenant, and Tenant leases from Landlord, the
premises described, for the use set forth and for the term and at the rent
reserved herein.
1. SPECIFIC PROVISIONS
1.1 DEMISED PREMISES
(a) SPACE DESCRIPTION: Suites 205, 803, 805 and 809, all as
presently constructed.
(b) FLOOR AREA: For the period January 1, 1996, through April
30, 1996, Suite 205, consisting of
approximately 1,796 square feet; and for the
remainder of the term, Suite 205 together with
Suite 803, consisting of approximately 1,871
square feet, Suite 805, consisting of
approximately 3,444 square feet, and Suite 809,
consisting of approximately 1,153 square feet,
for a combined total of approximately 8,264
square feet (Washington D.C. Association of
Realtors Standard Floor Area Measure in effect
at the time of execution of this Lease).
(c) BUILDING: ONE DEMOCRACY PLAZA
(d) ADDRESS: 0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
1.2 TERM OF LEASE: Five (5) years and Four (4) months, commencing on
January 1, 1996 ("Lease Commencement Date"), and expiring on April
30, 2001, both dates inclusive.
1.3 BASE ANNUAL RENT: (a) Forty-Nine Thousand Three Hundred Ninety and
08/100 Dollars ($49,390.08), payable in equal monthly installments
of Four Thousand One Hundred Fifteen and 84/100 Dollars
($4,115.84), hereinafter referred to as "base monthly rent", for
the period beginning January 1, 1996, and expiring April 30, 1996.
(b) Two Hundred Twenty-Seven Thousand Two Hundred Sixty and 08/100
Dollars ($227,260.08), payable in equal monthly installments of
Eighteen Thousand Nine Hundred Thirty-Eight and 34/100 Dollars
($18,938.34), hereinafter referred to as "base monthly rent", for
the period beginning May 1, 1996, and expiring April 30, 2001.
1.4 BASE YEAR: "Base Year" shall mean fiscal year of Landlord ending
December 31, 1996.
1.5 ADDITIONAL RENT: Payable in equal monthly installments,
commencing on May 1, 1997, consisting of the following:
(a) Tenant's pro rata share equal to Four and Four Hundredths
Percent (4.04%) of any increase in Real Estate Taxes over
the Base Year Real Estate Taxes; and
(b) Tenant's pro rata share equal to Four and Nine Hundredths
Percent (4.09%) of any increase in Operating Expenses over
the Base Year Operating Expenses; and
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(c) A percentage of the Base Annual Rent set forth in
Subsection 1.3(b) equal to Thirty Percent (30%) of the
percentage increase in the CPI over the CPI for "the base
period" in the year 1996.
1.6 SECURITY DEPOSIT: None.
1.7 (a) DATE TENANT APPROVED PRELIMINARY PLANS TO BE FURNISHED: Not
Applicable.
(b) WORKING DAYS TO PREPARE WORKING DRAWINGS AND COST
ESTIMATE: Not Applicable.
(c) WORKING DAYS TO SUBSTANTIALLY COMPLETE CONSTRUCTION OF
DEMISED PREMISES: Not Applicable.
1.8 STANDARD BUILDING OPERATING DAYS AND HOURS:
8:00 AM to 6:00 PM Monday - Friday
8:00 AM to 1:00 PM Saturday
1.9 USE OF PREMISES:
General office use in keeping with the quality and nature of this
first class office building.
1.10 (a) ADDRESS FOR NOTICES TO TENANT:
Optical Technology Group, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
(b) ADDRESS FOR NOTICES TO LANDLORD:
First Rock Spring Park Limited Partnership
c/o Xxxxxxx X. Xxxxx Management, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
ADDRESS FOR PAYMENT OF RENT:
First Rock Spring Park Limited Partnership
c/o Xxxxxxx X. Xxxxx Management, Inc.
X.X. Xxx 000000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
1.11 SPECIAL PROVISIONS:
Additional Rent Section 26
Pro Rata Share Section 27
Waiver of Rent Section 28
Reimbursement for Tenant's Improvements Section 29
Acceptance of Space Section 30
Parking Section 31
Renewal Option Section 32
Subletting and Assignment Section 33
Services and Utilities Section 34
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Use and Upkeep of Premises Section 35
Access to Premises Section 36
Liability Section 37
Damage Section 38
Condemnation Section 39
Defaults and Remedies Section 40
Subordination Section 41
Tenant's Holdover Section 42
Limitation of Liability Section 43
Execution of Document Section 44
1.12 EXHIBITS TO LEASE:
Exhibit "A" - Not Applicable
Exhibit "B" - Not Applicable
Exhibit "C" - Building Rules and Regulations
Exhibit "D" - Not Applicable
IN WITNESS WHEREOF, Landlord has caused this Lease, comprised of Specific
Provisions, General Provisions, Special Provisions and Exhibits to be signed and
sealed by one or more of its Officers, General Partners, Trustees, or Agents,
and Tenant has caused this Lease, as described above, to be signed in its
corporate name by its duly authorized officer and its corporate seal to be
hereto affixed and duly attested by its Secretary.
WITNESS: LANDLORD: FIRST ROCK SPRING PARK
LIMITED PARTNERSHIP
[SIG] BY /s/ Xxxxxx X. Xxxxx (SEAL)
---------------------------------- -----------------------------
General Partner
ATTEST: TENANT: OPTICAL TECHNOLOGY GROUP
INC.
CORPORATE [SIG] BY /s/ Xxxxxxx Xxx (SEAL)
SEAL ------------------------- -----------------------------
Secretary Name:
Title:
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GENERAL PROVISIONS
2. RENT
2.1 BASE ANNUAL RENT. Tenant shall pay the first monthly installment of
Base Annual Rent upon execution of this Lease. Tenant shall pay the remaining
monthly installments of Base Annual Rent specified in Section 1.3 in advance
without deduction or demand, on the first day of each and every calendar month
throughout the entire term of the Lease, as specified in Section 1.2, to and at
the office of Landlord's Agent, Xxxxxxx X. Xxxxx Management, Inc., 0000 Xxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, or to such other person or at such other place
as Landlord may hereafter designate in writing.
2.2 ADDITIONAL RENT. For purposes of computing additional rent hereunder,
the Base Year as used in this Section 2 is stipulated in Section 1.4. If dollar
amounts for Base Year real estate taxes and operating expenses are stipulated
under Section 1.4, such dollar amounts shall be used in calculating
additional rent for the purposes of this Lease and shall prevail regardless of
actual historical dollar amounts for the Base Year. Commencing on the date
specified in Section 1.5. and continuing throughout the term of this
Lease, Tenant shall pay to Landlord as additional rent each of the following:
(a) REAL ESTATE TAXES. Tenant's pro rata share, as indicated in
Section 1.5(a), of any increase in real estate taxes during each fiscal year of
Landlord over the Base Year real estate taxes. The term "real estate taxes"
shall mean all taxes, general and special, levied or assessed on the land and
the building improvements of which the Demised Premises is a part, and on any
land and/or improvements now or hereafter owned by Landlord that provide the
building or the Demised Premises with parking or other services.
(b) OPERATING EXPENSES. Tenant's pro rata share, as indicated in
Section 1.5 (b), of any increase in operating expenses during each fiscal year
of Landlord over the Base Year operating expenses.
(i) The term "operating expenses" shall mean any and all
expenses incurred by Landlord in connection with the servicing, operation,
maintenance and repair of the building and related interior and exterior
appurtenances of which the Demised Premises is a part, and the cost of any
services incurred in order to achieve a reduction of or to minimize the increase
in operating expenses, including without limitation, management fees, capital
expenditures for equipment or systems installed to reduce or minimize increases
in operating expenses and capital expenditures required by any governmental
ordinance, or depreciation or amortization based on the useful life expectancy
of such equipment or systems or expenditures, the cost of contesting the
validity or amount of real estate taxes, and periodic increases in ground rent
payments under any ground Lease existing at the execution of this Lease. Certain
of these expenses may be apportioned among two or more buildings in the same
complex or locality owned by Landlord and/or managed by Landlord's Agent.
(ii) Operating expenses shall not include any of the following,
except to the extent that such costs and expenses are included in operating
expenses as described in Subsection 2.2(b)(i) above: capital expenditures and
depreciation of the building; painting or decorating of tenant space; interest
and amortization of mortgages; ground rent; compensation paid to officers or
executives of Landlord; taxes as measured by the net income of Landlord
from the operation of the building; increases in real estate taxes; and
brokerage commissions.
(c) CPI. A percentage of the Base Annual Rent equal to the percent
stipulated in section 1.5(c) of the percentage increase in the Index now known
as "United States Bureau of Labor Statistics, Consumer Price Index for Urban
Wage Earners and Clerical Workers," (CPI-W) for Washington, DC-MD-VA, all items
Index (1982-84=100) (hereinafter referred to as the "Index"), between the last
published Index published for each calendar year and the Index for the same
period in the year stipulated in Section 1.5(c) (hereinafter "base period"). If
such Index shall be discontinued or revised without substitution of a comparable
successor Index, the parties shall attempt to agree upon a substitute formula.
If the parties are unable to agree upon a substitute formula, then the matter
shall be determined by arbitration in accordance with the rules of the American
Arbitration Association then prevailing. Any substitute formula determined by
arbitration shall include all of the same items included in the Index effective
at the execution of this Lease and shall be so designed as to achieve a result
as close as possible to the result that would have been achieved if the
discontinued Index were available. Costs of any such arbitration shall be shared
equally by Tenant and Landlord.
(d) Landlord shall have the right to change its fiscal year from time
to time. If Landlord changes its fiscal year during the term of this Lease,
thereby creating a fiscal year with fewer than twelve (12) months (hereinafter
"short year"), the real estate taxes and operating expenses for the short year
shall be determined on an annualized basis by taking the monthly average of the
actual real estate taxes and operating expenses, respectively, and multiplying
each by twelve. The amounts determined by this method shall be used in
determining the increases described in Subsections 2.2(a) and (b) for the "short
year".
2.3 ADDITIONAL RENT ESTIMATES AND ADJUSTMENTS.
(a) In order to provide for current monthly payments of additional
rent, Landlord shall submit to Tenant prior to January 1st of each year a
statement of Landlord's estimate of the amount of the increases described in
Section 2.2 above together with the amount of Tenant's additional rent which is
estimated to result from such increases. Commencing on the date stipulated in
Section 1.5, and continuing throughout the remaining term of this Lease, Tenant
shall pay each month one-twelfth (1/12th) of Tenant's pro rata share of
Landlord's estimate of the increase in each year for (i) real estate taxes and
(ii) operating expenses, over such items for the Base Year. In addition, Tenant
shall pay each month one-twelfth (1/12th) of Landlord's estimate of the annual
rent increase due to the percentage increase in the Consumer Price Index over
the Base Period.
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(b) If payment of additional rent begins on a date other than January
1st under this Lease, in order to provide for current payments of additional
rent through December 31st of that partial calendar year, Landlord shall submit
to Tenant a statement of Landlord's estimate of Tenant's additional rent for
that partial year, stated in monthly increments, resulting from the increases
described in Section 2.2 above. Tenant shall make these payments of estimated
additional rent together with its installments of base monthly rent.
(c) After the end of each calendar year, Landlord will as soon as
practicable submit to Tenant a statement of the actual increases incurred in
real estate taxes and operating expenses for the fiscal year ended during such
calendar year over such costs for the Base Year and the actual increase
attributable to the increase in the Consumer Price Index over the Base Period.
Such statement shall also indicate the amount of Tenant's excess payment or
underpayment based on Landlord's estimate. If additional rent paid by Tenant
during the preceding calendar year shall be in excess of, or less than, the
aggregate of its share of the actual increase incurred by Landlord for real
estate taxes and operating expenses, and the actual increase attributable to the
increase in the Consumer Price Index, Landlord and Tenant agree to make the
appropriate adjustment following the submission of Landlord's statement. Tenant
shall either pay any additional rent due with the installment of rent due for
the month following submission of Landlord's statement, or pay any additional
rent due within thirty (30) days if the Lease term has expired or is otherwise
terminated. Tenant shall deduct its excess payment, if any, from the installment
of rent for such month, or following the final year of the Lease term, Tenant
shall be reimbursed for any excess payments made.
(d) Within ten (10) days after receipt of Landlord's statement
showing actual figures for the year, Tenant shall have the right to request
copies of real estate bills and an unaudited statement of "operating expenses
of the building" prepared by Landlord's certified public accountant, which shall
be supplied to Tenant within a reasonable time after Tenant's written request.
Unless Tenant asserts specific error(s) within thirty (30) days after Landlord
has complied with Tenant's request, Tenant shall have no right to contest the
statement of actual figures for the year submitted by Landlord. No such request
shall extend the time for payments as set forth in this Section 2.3 above. If
Tenant has given proper notice, and if it shall be determined that there is an
error in Landlord's statement, Tenant shall be entitled to a credit for any
overpayment, which shall be applied to the next installment of rent or refunded
to a Tenant who has vacated the premises, or Tenant shall be billed for any
underpayment and shall remit any amount owing to Landlord within ten (10) days
of receipt of such statement.
(e) In the event Tenant questions the validity of the statement of
operating expenses submitted by Landlord, Tenant shall have the right to examine
or have its accountant examine at the office of Landlord's accountant the books
and records from which such statement has been prepared. No such examination
shall extend the time for payments due in accordance with this Section 2.3,
however. Tenant shall pay upon demand a reasonable sum to reimburse Landlord
for the costs of services of Landlord's accountant in cooperating and assisting
in the examination. If any error amounting to more than five (5) percent in the
operating expenses statement is found, Landlord shall bear its accountant's
costs as aforesaid.
2.4 RENT ADJUSTMENT LIMIT. Notwithstanding any adjustments to rent as
provided for above, in no event shall the total rent to be paid by tenant in any
month during the term of this Lease or any extension thereof be less than the
base monthly rent stipulated in Section 1.3.
2.5 SURVIVAL OF RENT OBLIGATION. The obligation of Tenant with respect to
the payment of rent, or additional rent as defined in Sections 2.2 and 2.10,
accrued and unpaid during the term of the Lease, shall survive the expiration
or earlier termination of the Lease.
2.6 PRO RATA SHARE. Tenant's "pro rata share" stipulated in Section 1.5(a)
and (b) represents the ratio that the area of the Demised Premises bears to the
total rentable area of office space contained in the building.
2.7 PRORATED RENT. Any rent or additional rent payable for one or more
full calendar months in a partial calendar year at the beginning or end of the
Lease term shall be prorated based upon the number of months. Any rent or
additional rent payable for a portion of a month shall be prorated based upon
the number of days in the applicable calendar month.
2.8 APPLICATION OF RENT. No payment by Tenant or receipt by Landlord of
lesser amounts of rent or additional rent than those herein stipulated shall be
deemed to be other than on account of the earliest unpaid stipulated rent. No
endorsement or statement on any check or any letter accompanying any check or
payment as rent shall be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such rent or pursue any other remedy provided in this Lease. Any
credit due to Tenant hereunder by reason of overpayment of additional rent shall
first be applied to any damages or rent owed to Landlord by Tenant if Tenant
shall be in default when said credit shall be owed.
2.9 LATE PAYMENT FEE. In the event any installment of rent or additional
rent due hereunder is not paid within ten (10) calendar days after it is due,
then Tenant shall also pay to Landlord as additional rent a late payment fee
equal to five percent (5%) of such delinquent rent for each and every month or
part thereof such rent remains unpaid.
2.l0 OTHER TENANT COSTS & EXPENSES. All costs and expenses which Tenant
assumes or agrees to pay to Landlord pursuant to this Lease, including without
limitation costs of construction and alterations, shall be deemed additional
rent and, in the event of nonpayment thereof, Landlord shall have all the
rights and remedies herein provided for in case of nonpayment of rent,
including assessment of late payment fees.
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3. CONSTRUCTION OF PREMISES AND OCCUPANCY
3.1 TENANT PLANS, CONSTRUCTION AND RENT LIABILITY. Tenant shall deliver to
Landlord for its approval, by the date specified in Section 1.7(a),
preliminary plans approved in writing by Tenant showing its partition,
electrical, telephone and all other requirements set forth in Tenant Plans
Guidelines (which shall have been provided by Landlord to Tenant). Tenant
preliminary plans shall permit the preparation of working drawings and cost
estimate, and shall be certified by Tenant's architects or engineers to be in
compliance with applicable building and fire codes. Landlord's approval of
Tenant plans or work does not constitute certification by Landlord that said
plans or work meet the applicable requirements of any building codes, laws,
or regulations, nor shall it impose any liability whatsoever upon Landlord. If
Tenant's plans are not in compliance with applicable building and fire codes,
they shall not be deemed acceptable to Landlord. If Tenant's plans are
acceptable to Landlord, Landlord shall have working drawings prepared. Nothing
contained in this Section 3.1, nor any delay in completing the Demised
Premises, shall in any manner affect the commencement date of this Lease set
forth in Section 1.2 or Tenant's liability for the payment of rent from such
commencement date, except as follows. If Landlord requires longer than the
number of working days stipulated in Section 1.7(b) to prepare working
drawings and prepare the cost estimate following receipt of Tenant's approved
preliminary drawings, or if Landlord requires longer than the number of
working days stipulated in Section 1.7(c) to substantially complete construction
improvements in the Demised Premises, then the date for payment of rent
covenanted and reserved to be paid herein shall be put off by one day for each
extra day Landlord requires for the foregoing preparation of working drawings
and cost estimate and/or substantial completion of construction improvements.
For purposes of this Section 3.1, substantial completion of construction
improvements shall mean when all work to be performed by Landlord pursuant to
the approved working drawings has been completed, except for minor items of work
and minor adjustments of equipment and fixtures that can be completed after
occupancy of the Demised Premises without causing undue interference with
Tenant's reasonable use of the Demised Premises (i.e., so-called "punch-list"
items). In the event Tenant's plans specify any improvements that are not
building standard, however, the delivery and installation of which precludes
Landlord from completing the Demised Premises for Tenant's occupancy by the
commencement date hereof, or in the event any work to be performed by Tenant or
Tenant's contractors delays Tenant's occupancy by the commencement date
hereof, Tenant shall nevertheless remain liable for the payment of rent from
such commencement date.
3.2 POSSESSION. If Landlord shall be unable to tender possession of the
Demised Premises on the date of the commencement of term hereof, set forth in
Section 1.2, by reason of: (a) the fact that the premises are located in a
building being constructed and which has not been sufficiently completed to make
the premises ready for occupancy; (b) the holding over or retention of
possession of any tenant or occupant; or (c) for any other reason beyond control
of Landlord, Landlord shall not be subject to any liability for the failure to
tender possession on said date. In the case of holding over, provided Landlord
shall promptly institute suit for recovery of the premises and diligently pursue
the same, Landlord shall have no responsibility for any delay in tendering
possession of the Demised Premises. Under such circumstances the rent reserved
and covenanted to be paid herein shall not commence until possession of the
Demised Premises is tendered to Tenant. No such failure to give possession on
the date of commencement of the term shall in any other respect affect the
validity of this Lease or the obligations of Tenant hereunder, nor shall same be
construed to extend the termination date of this Lease set forth in Section
1.2. If permission is given to Tenant to enter into possession of the Demised
Premises prior to the date specified as the commencement of the term of this
Lease, Tenant covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this Lease, except
that Tenant shall be responsible for payment of rent, in advance, at the rate of
1/30th of the base monthly rent set forth in Section 1.3 for each day of such
occupancy prior to the date for the commencement of the term of this Lease.
3.3 OCCUPANCY PERMITS. Tenant shall be responsible for obtaining occupancy
permits and any other permits or licenses necessary for its lawful occupancy of
the Demised Premises.
4. SUBLETTING AND ASSIGNMENT
4.1 CONSENT. Tenant will not sublet the Demised Premises or any part
thereof or transfer possession or occupancy thereof to any person, firm or
corporation, or transfer or assign this Lease, without the prior written consent
of Landlord, which consent shall be in Landlord's sole discretion to give or
withhold. No subletting or assignment hereof shall be effected by operation of
law or in any other manner unless with prior written consent of Landlord. Tenant
further agrees that any permitted subletting of the Demised Premises shall be
subject to the provisions of Section 4.3. No assignment shall be made except
for the entire premises demised by this Lease. Tenant further agrees that any
permitted assignment of the Lease may be conditioned upon payment of
consideration to be agreed upon by Landlord and Tenant. Any subletting or
assignment consented to by Landlord shall be evidenced in writing in a form
acceptable to Landlord. Consent by Landlord to any assignment or subletting by
Tenant shall not operate as a waiver of the necessity for obtaining Landlord's
consent in writing to any subsequent assignment or subletting; nor shall the
collection or acceptance of rent from any such assignee, subtenant or occupant
constitute a waiver or release of Tenant of any covenant or obligation
contained in this Lease. In the event that Tenant defaults under this Lease in
the payment or rent or additional rent, Tenant hereby assigns to Landlord the
rent due from any subtenant of Tenant and hereby authorizes each such
subtenant to pay said rent directly to Landlord.
4.2 RECAPTURE OF PREMISES. In the event Tenant desires to sublet the
Demised Premises or assign the Lease, Tenant shall give the Landlord written
notice of Tenant's intended subtenant or assignee in order to secure Landlord's
written consent in accordance with Section 4.1. Within ninety (90) days of
receipt of said notice, Landlord shall have the right: (i) to terminate this
Lease by giving Tenant not less than thirty (30) days' notice in the case of an
assignment of the entire Lease or a subletting of more than fifty percent (50%)
of the Demised Premises; or (ii) to) terminate this Lease and simultaneously
to enter into a new Lease with
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Tenant for that portion of the Demised Premises Tenant may desire to retain upon
the same terms, covenants and conditions of the existing Lease as applicable to
the space retained. If Landlord exercises its right to terminate this Lease,
Tenant agrees that Landlord shall have access to all or a portion of the
Demised Premises sixty (60) days prior to the effective termination date for
remodeling or redecorating purposes.
4.3 EXCESS RENT. In the event Landlord does not exercise its right to
terminate this Lease, and Landlord has granted its written consent, Tenant may
sublet all or a portion of the Demised Premises. Any rent accruing to Tenant as
the result of such sublease, which is in excess of the pro rata share of rent
then being paid by Tenant for the portion of the Demised Premises being
sublet, shall be paid by Tenant to Landlord monthly as additional rent.
4.4 TENANT LIABILITY. In the event of any subletting of the Demised
Premises or assignment of this Lease by Tenant, with or without Landlord's
consent, Tenant shall remain liable to Landlord for payment of the rent
stipulated herein and all other covenants and conditions contained herein.
5. SERVICES AND UTILITIES
5.1 BUILDING STANDARD SERVICES AND UTILITIES. Landlord shall furnish
sufficient electric current for lighting and office equipment, such as
typewriters, calculators, small copiers and similar items, subject to the
limitations of Section 5.3, water for lavatory and drinking purposes, lavatory
supplies, fluorescent tube replacements, automatically operated elevator
service and nightly cleaning service in accordance with Landlord's prevailing
practices, as they may be established from time to time, except that Landlord
shall not be responsible for cleaning Tenant kitchens or private bathrooms,
Tenant rugs, carpeting and drapes. Landlord further agrees to furnish heating
and cooling during the appropriate seasons of the year, between the hours and
on the days set forth in Section 1.8 (exclusive of legal public holidays as
defined in Section 6103 (a) and (c) of Title 5 of the United States Code, as it
may be hereafter be amended, with holidays falling on Saturday observed on the
preceding Friday and holidays falling on Sunday observed on the following
Monday). All of the aforesaid services shall be provided without cost to Tenant
except as such expenses may be included in calculating the additional rent
pursuant to the provisions of Sections 2.2 and 2.3. Landlord shall not be
liable for failure to furnish, or for suspension or delays in furnishing, any
of such services caused by breakdown, maintenance or repair work, strike, riot,
civil commotion, governmental regulations or any other cause or reason whatever
beyond the control of Landlord. Suspension or interruption of services shall
not result in any abatement of rent, be deemed an eviction or relieve Tenant of
performance of Tenant's obligations under this Lease.
5.2 OVERTIME SERVICES. Should Tenant require heating and cooling services
beyond the hours and/or days stipulated in Section 1.8, upon receipt of at
least 72 hours prior written notice from Tenant, Landlord will furnish such
additional service at the then prevailing hourly rates, as established by
Landlord from time to time; provided, further, that there will be a minimum
charge of four (4) hours each time overtime services are required.
5.3 EXCESSIVE ELECTRICAL USAGE.
(a) Tenant will not install or operate in the Demised Premises any
heavy duty electrical equipment or machinery without first obtaining prior
written consent of Landlord. Landlord may, among other conditions, require
as a condition to its consent for the installation of such equipment or
machinery, payment by Tenant as additional rent for excess consumption of
electricity that may be occasioned by the operation of said equipment or
machinery. Landlord may make periodic inspections of the Demised Premises at
reasonable times to determine that Tenant's electrically operated equipment
and machinery complies with the provisions of this Section and Section
5.4.
(b) The total average consumption of electricity, including lighting,
in excess of five (5) xxxxx per square foot for the Demised Premises shall be
deemed excessive. Additionally, any individual piece of electrically operated
machinery or equipment having a name plate rating in excess of two (2) kilowatts
shall also be deemed as requiring excess electric current.
(c) Landlord may require that one or more separate meters be
installed to record the consumption or use of electricity, or shall have the
right to cause a reputable independent electrical engineer to survey and
determine the quantity of electricity consumed by such excessive use. The cost
of any such survey or meters and of installation, maintenance and repair
thereof shall be paid for by Tenant. Tenant agrees to pay Landlord (or the
utility company, if direct service is provided by the utility company),
promptly upon demand therefor, for all such electric consumption and
demand as shown by said meters, or a flat monthly charge determined by the
survey, as applicable, at the rates charged for such service by the local
public utility company. If Tenant's cost of electricity based on meter
readings is to be paid to Landlord, Tenant shall pay a service charge related
thereto.
5.4 EXCESSIVE HEAT GENERATION. Landlord shall not be liable for its
failure to maintain comfortable atmospheric conditions in all or any portion of
the Demised Premises due to heat generated by any equipment, machinery or
additional lighting installed by Tenant (with or without Landlord's consent)
that exceeds design capabilities for the building of which the Demised Premises
are a part. If Tenant desires additional cooling to offset excessive heat
generated by such equipment or machinery, Tenant shall pay for auxiliary
cooling equipment, and its operating costs including without limitation
electricity, gas, oil and water, or for excess electrical consumption by the
existing cooling system, as appropriate.
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5.5 SECURITY. Any security measures that Landlord may undertake, are for
protection of the building only and shall not be relied upon by Tenant to
protect Tenant, Tenant's property, or employees, or their property.
6. USE AND UPKEEP OF PREMISES
6.1 USE. Tenant shall use and occupy the Demised Premises for the purposes
specified in Section 1.9 and only in accordance with applicable zoning and other
municipal regulations and for no other purpose whatsoever.
6.2 ILLEGAL AND PROHIBITED USES. Tenant will not use or permit the
Demised Premises or any part thereof to be used for any disorderly, unlawful or
extra hazardous purpose and will not manufacture any commodity therein. Tenant
will not use or permit the Demised Premises to be used for any purposes that
interfere with the use and enjoyment by other tenants of the building
nor which, in Landlord's opinion, impair the reputation or character of the
building of which the Demised Premises form a part. Tenant shall refrain from
and discontinue such use upon receipt of written notice from Landlord or
no later than three (3) days after mailing thereof.
6.3 INSURANCE RATING. Tenant will not do or permit anything to be done in
the Demised Premises or the building of which they form a part or bring or keep
anything therein which shall in any way increase the rate of fire or other
insurance in said building, or on the property kept therein, or obstruct, or
interfere with the rights of other tenants, or in any way injure or annoy them,
or those having business with them, or conflict with them, or conflict with the
fire laws or regulations, or with any insurance policy upon said building or
any part thereof, or with any statutes, rules or regulations enacted or
established by the appropriate governmental authority.
6.4 ALTERATIONS.
(a) Tenant will not make any alterations, installations, changes,
replacements, repairs, additions or improvements (structural or otherwise) in or
to the Demised Premises or any part thereof, without the prior written consent
of Landlord. All Tenant plans and specifications shall be submitted to Landlord
for prior approval. Landlord may, among other things, condition its consent upon
Tenant's agreement that any construction up-gradings required by any
governmental authority as a the result of Tenant's work, either in the Demised
Premises or in any other part of the building, will be paid for by Tenant.
Tenant shall not install any equipment of any kind or nature whatsoever which
will or may necessitate any changes, replacements or additions to the water
system, plumbing system, heating system, air-conditioning system or the
electrical system of the Demised Premises without the prior written consent of
the Landlord. Tenant shall not install or use in the building any air
conditioning unit, engine, boiler, generator, machinery, heating unit, stove,
water cooler, ventilator, radiator or any other similar apparatus without the
prior written consent of Landlord, and then only as Landlord may direct. Tenant
shall not modify or interfere with the heating, ventilating and
air-conditioning supply, return or control systems without the prior written
consent of Landlord, and then only as Landlord may direct. Landlord may
condition its consent upon Tenant's payment of all costs to make such changes,
replacement or modifications. Landlord's consent to any work by Tenant or
approval of Tenant plans or specifications shall not be deemed a certification
that such work complies with applicable building codes, laws or regulations, nor
shall it impose any liability whatsoever upon Landlord.
(b) All of Tenant's approved work shall be done in accordance with
Landlord's Supplemental Rules and Regulations for Contractors and shall be done
by duly licensed contractors in accordance with all applicable laws, codes,
ordinances, rules and regulations, and Tenant shall obtain at its cost any
required permits, licenses or inspections for performance of its work. Tenant
must obtain an executed waiver of lien from each contractor or vendor that
will perform or furnish to Tenant work, labor, services or materials for any
alterations, installations, replacements, additions or improvements in or to the
Demised Premises, prior to the commencement of such work. Notwithstanding the
aforesaid, if any mechanic's lien shall at any time, whether before, during
or after the Lease term, be filed against any part of the building by reason to
work, labor, services or materials performed for or furnished to Tenant, Tenant
shall forthwith cause the lien to be discharged of record or bonded off to the
satisfaction of Landlord. If Tenant shall fail to cause such lien to be
discharge or bonded off within five (5) days after being notified of the filing
thereof, then, in addition to any other right to remedy of Landlord, Landlord
may discharge the lien by paying the amount claimed to be due. The amount
paid by Landlord, and all costs and expenses, including reasonable attorney's
fees incurred by Landlord in procuring the discharge of the lien, shall be
due and payable by Tenant to Landlord as additional rent on the first day of
the next following month, or if the Lease term has expired, upon demand.
(c) All alterations, installations, including without limitation wall
to wall carpet and drapery and drapery accessories, changes, replacements,
repairs, additions, or improvements to or within the Demised Premises (whether
with or without Landlord's consent), shall at the election of Landlord remain
upon the Demised Premises and be surrendered with the Demised Premises at the
expiration of this Lease without disturbance, molestation or injury. Should
Landlord elect that alterations, installations, changes, replacements, repairs,
additions to or improvements made by or for Tenant upon the Demised Premises
be removed upon termination of this Lease or upon termination of any renewal
period hereof, Tenant hereby agrees that Landlord shall have the right to cause
same to be removed at Tenant's sole cost and expense. Tenant hereby agrees to
reimburse Landlord for the cost of such removal together with the cost of
repairing any damage
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resulting therefrom, and the cost of restoring the premises to its condition and
commencement of the term of this Lease as initially improved by Landlord.
Approximately sixty (60) days prior to Tenant's scheduled vacation of the
Demised Premises, Landlord and Tenant shall meet to decide what items shall be
removed and what items shall remain. At such time Tenant shall deposit with
Landlord an amount equal to the estimated costs of removal and/or restoration of
the Demised Premises, which work shall be performed by or for Landlord at
Tenant's expense.
(d) In the event that either Landlord or Tenant, during the term
hereby demised, shall be required by the order or decree of any court, or any
other governmental authority, or by law, code or ordinance, to repair, alter,
remove reconstruct, or improve any part of the Demised Premises or of the
building of which said premises are a part, then Tenant shall make or Tenant
shall be required to permit Landlord to perform such repairs, alterations,
removals, reconstructions, or improvements without effect whatsoever to the
obligations or covenants of Tenant herein contained, and Tenant hereby waives
all claims for damages or abatement of rent because of such repairing,
alteration, removal, reconstruction, or improvement.
6.5 MAINTENANCE BY LANDLORD. Landlord shall maintain all public or
common areas located in the building, including external and structural parts of
the building that do not comprise a part of the Demised Premises and are not
Leased to others. Such maintenance shall be provided without cost to Tenant
except as such expenses may be included in calculating the additional rent
pursuant to the provisions of Sections 2.2 and 2.3.
6.6 SIGNS & ADVERTISING. No sign, advertisement or notice shall be
inscribed, painted or affixed on any part of the outside of the building, or
inside of the Demised Premises where it may be visible from the public areas of
the building, except on the directories and doors of offices, and then only in
such size, color and style as Landlord shall approve. Landlord shall have the
right to prohibit any advertisement or publication of Tenant on-or off-premises
which in Landlord's opinion tends to impair the reputation or character of the
building, Landlord or its agent. Tenant shall refrain from and discontinue such
advertisement or publication upon receipt of written notice from Landlord or no
later than three (3) days after mailing hereof.
6.7 EXCESSIVE FLOOR LOAD. Landlord shall have the right to prescribe
the weight and method of installation and position of safes, computer equipment,
or other heavy fixtures or equipment. Tenant will not install in the Demised
Premises any fixtures, equipment or machinery that will place a load upon the
floor exceeding the designed floor load capacity of the building. Landlord may
prescribe the placement and positioning of all such objects within the building,
and such objects shall be placed upon platforms, plates or footings of such size
as Landlord shall prescribe if necessary. All damage done to the building by
installing or removing a safe or any other article of Tenant's office equipment,
or due to its being in the Demised Premises, shall be repaired at the expense
of Tenant.
6.8 MOVING & DELIVERIES.
(a) Moving in or out of the building is prohibited on days and
hours specified in Section 1.8. Tenant shall provide Landlord with forty-eight
(48) hours advanced written notice of any move and obtain Landlord's approval
therefor in order to facilitate scheduling use of freight elevators and loading
area.
(b) No freight, furniture or other bulky matter of any description
shall be received into the building or carried in the elevators, except as
authorized by Landlord. All moving of furniture, material and equipment shall be
under the direct control and supervision of Landlord, who shall, however, not be
responsible for any damage to or charges for moving same. Tenant shall promptly
remove from the public area adjacent to said building any of Tenant's property
delivered or deposited there.
(c) Any and all damage or injury to the Demised Premises or the
building caused by moving the property of Tenant into or out of the Demised
Premises shall be repaired at the sole cost of Tenant. Deliveries from lobby and
freight areas requiring use of hand carts shall be restricted to freight
elevators. All hand carts used in delivery, receipt or movement of freight,
supplies, furniture, or fixtures shall be equipped with rubber tires and side
guards. Tenant shall cooperate identifying delivery contractors and movers
causing damage to the building.
6.9 RULES AND REGULATIONS. Tenant shall, and shall insure that
Tenant's agents, employees, invitees and guests, faithfully keep, observe and
perform the Building Rules and Regulations set forth in Exhibit C, attached
hereto and made a part hereof, and such other reasonable rules and regulations
as Landlord may make, which shall not substantially interfere with the intended
use of the Demised Premises, which in Landlord's judgment are needful for the
general well being, operation and maintenance of the Demised Premises and the
building of which they are a part, together with their appurtenances, unless
waived in writing the Landlord. In addition to any other remedy provided for
herein, Landlord shall have the right to impose a fine of $200 per incident for
violations of Building Rules and Regulations. Nothing contained in this
Lease shall be construed to impose upon Landlord any duty or obligation to
enforce such rules and regulations, or the terms, conditions or covenants
contained in any other Lease, as against any other tenant, and Landlord
shall not be liable to Tenant for violation of the same by any other tenant, its
employees, agents, business invitees, licensees, customers, clients family
members or guests. Further, it shall be in Landlord's reasonable judgment to
determine whether Tenant is in compliance with the Rules and Regulations.
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6.10 TENANT MAINTENANCE & CONDITIONS OF PREMISES UPON SURRENDER.
Tenant will keep the Demised Premises and the fixtures and equipment therein in
good order and condition, will suffer no waste or injury thereto, and will, at
the expiration or other termination of the term hereof, surrender and deliver
up the same in like good order and condition as the premises shall be at the
commencement of the term of this Lease, subject to the provisions of Section
6.4(c), ordinary wear and tear excepted.
6.11 TENANT EQUIPMENT. Maintenance and repair of equipment such as
special light fixtures, kitchen fixtures, auxiliary heating, ventilation, or
air-conditioning equipment, private bathroom fixtures and any other type of
special equipment together with related plumbing or electrical services, or
Tenant rugs, carpeting and drapes within the Demised Premises, whether installed
by Tenant or by Landlord on behalf of Tenant, shall be the sole responsibility
of Tenant, and Landlord shall have no obligation in connection therewith.
Notwithstanding the provisions hereof, in the event that repairs required to
be made by Tenant become immediately necessary to avoid possible injury or
damage to persons or property, Landlord may, but shall not be obligated to,
make repairs to Tenant equipment at Tenant's expense. Within ten (10) days
after Landlord renders a xxxx for the cost of said repairs, Tenant shall
reimburse Landlord.
7. ACCESS
7.1 LANDLORD'S ACCESS. Landlord, its agent or employees, shall have
the right to enter the Demised Premises at all reasonable times (a) to make
inspections or to make such repairs and maintenance to the Demised Premises or
repairs and maintenance to other premises as Landlord may deem necessary; (b) to
exhibit the premises to prospective tenants during the last six (6) months of
the term of this Lease; and (c) for any purpose whatsoever relating to safety,
protection or preservation of the building of which the Demised Premises form
a part.
7.2 RESTRICTED ACCESS. No additional locks, other devices or systems
which would restrict access to the Demised Premises shall be placed upon any
doors without the prior consent of Landlord. Landlord's consent to installation
of anti-crime warning devices or security systems shall not be unreasonably
withheld; provided Landlord shall not be required to give such consent unless
Tenant provides Landlord with a means of access to the demised premised for
emergency and routine maintenance purposes. Unless access to the Demised
Premises is provided during the hours when cleaning service is normally
rendered, Landlord shall not be responsible for providing such service to the
Demised Premises or to those portions thereof which are inaccessible. Such
inability by Landlord to provide cleaning services to inaccessible areas shall
not entitle Tenant to any adjustment in rent.
8. LIABILITY
8.1 PERSONAL PROPERTY. All personal property of Tenant in the Demised
Premises or in the building of which the Demised Premises is a part shall be at
the sole risk of Tenant. Landlord shall not be liable for any damage thereto or
for the theft or misappropriation thereof, unless such damage, theft or
misappropriation is directly attributable to the negligence of Landlord, its
agents or employees. Landlord shall not be liable for any accident to or damage
to property of Tenant resulting from the use or operation of elevators or of the
heating, cooling, electrical or plumbing apparatus, unless caused by and due to
the negligence of Landlord, its agents or employees. Landlord shall not, in any
event, be liable for damages to property resulting from water, steam or other
causes. Tenant hereby expressly releases Landlord from any liability incurred or
claimed by reason of damage to Tenant's property, unless said damages are proved
to be the direct result of negligence of Landlord, its agents or employees.
Landlord shall not be liable in damages, nor shall this Lease be affected, for
conditions arising or resulting, and which affect the building of which the
Demised Premises is a part, due to construction on contiguous premises.
8.2 CRIMINAL ACTS OF THIRD PARTIES. Landlord shall not be liable in
any manner to Tenant, its agents, employees, invitees or visitors for any injury
or damage to Tenant, Tenant's agents, employees, invitees, or visitors, or their
property, caused by the criminal or intentional misconduct of third parties or
of Tenant, Tenant's employees, agents, invitees, or visitors. All claims against
Landlord for any such damage or injury are hereby expressly waived by Tenant,
and Tenant hereby agrees to hold harmless and indemnify Landlord from all such
damages and the expense of defending all claims made by Tenant's employees,
agents, invitees, or visitors arising out of such acts.
8.3 PUBLIC LIABILITY. Landlord assumes no liability or responsibility
whatsoever with respect to the conduct and operation of the business to be
conducted upon the Demised Premises. Landlord shall not be liable for any
accident to or injury to any person or persons or property in or about the
Demised Premises which are caused by the conduct and operation of said business
or by virtue of equipment or property of Tenant in said premises. Tenant agrees
to hold Landlord harmless against all such claims, and indemnify Landlord from
all damages and the expense of defending all such claims.
8.4 TENANT INSURANCE.
(a) Tenant at its cost shall maintain as named insured, during
the term of this Lease, public liability and property damage insurance with at
least a single combined liability and property damage limit of $1,000,000.00,
insuring against all liability of Tenant and its authorized representatives
arising out of and in connection with Tenant's use or occupancy of the
premises. All public liability insurance and property damage insurance
shall insure performance by Tenant of the indemnity provisions of Section
8.1, 8.2 and 8.3. Landlord and Landlord's Agent shall be named as additional
insureds. The policy shall contain cross-liability endorsements, and an
assummed contractural liability endorsement that refers expressly to this Lease.
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(b) Tenant at its cost shall maintain as named insured, during the
term of this Lease, fire and extended coverage insurance of the Demised Premises
and its contents, including any Leasehold improvements made by Tenant, in an
amount sufficient so that no co-insurance will be payable in case of loss.
(c) Tenant shall increase its insurance coverage as required not
more frequently than each three (3) years, if in the opinion of the mortgagee of
the building or Landlord's insurance agent the amount of public liability and
property damage insurance coverage at that time is not adequate.
(d) All insurance required under this Lease shall be insurance
companies authorized to do business in the jurisdiction where the building of
which the Demised Premises is a part is located. Such companies shall have a
policyholder rating of at least "A" and be assigned a financial size category of
a least "Class XIV" as rated in the most recent edition of "Best's Key Rating
Guide" for insurance companies. Each policy shall contain an endorsement
requiring 30 days' written notice from the insurance company to Landlord
before cancellation or any charge in the coverage, scope or amount of any
policy. Each policy, or a certificate showing it is in effect, together with
evidence of payment of premiums, shall be deposited with Landlord at least
thirty (30) days prior to the expiration date of any policy.
(e) Notwithstanding the fact that any liability of Tenant to
Landlord may be covered by Tenant's insurance, Tenant's liability shall in no
way be limited by the amount of its insurance recovery.
9. DAMAGE
9.1 DAMAGES CAUSED BY TENANT. Subject to the provision of Section 9.2,
all injury to the Demised Premises and other portions of the building of which
it is a part, caused by Tenant, its agents, employees, invitees and visitors,
will be repaired by Landlord at the expense of Tenant, except as otherwise
provided in Section 6.11, or repaired by Tenant with Landlord's approval in
accordance with Section 6. Tenant shall reimburse Landlord for such repairs
within ten (10) days of receipt of invoice from Landlord of the costs. At its
election, Landlord may regard the same as additional rent, in which event the
cost shall become additional rent payable with the installment of rent next
becoming due after notice is received by Tenant from Landlord. This provision
shall be construed as an additional remedy granted to Landlord and not in
limitation of any other rights and remedies which Landlord has or may have in
said circumstances.
9.2 FIRE OR CASUALTY DAMAGE. In the event of damage or destruction of
the Demised Premises by fire or any other casualty without the fault or neglect
of Tenant, its agents, employees, invitees or visitors, this Lease shall not
be terminated, but structural damage to the premises including demising
partitions and doors shall be promptly and fully repaired and restored as the
case may be by Landlord at its own cost and expense. Due allowance, however,
shall be given for reasonable time required for adjustment and settlement of
insurance claims, and for such other delays as may result from government
restrictions, and controls on construction, if any, and for strikes, national
emergencies and other conditions beyond the control of Landlord. Restoration by
Landlord shall not include replacement of furniture, equipment or other items
that do not become part of the building or any improvements to the Demised
Premises in excess of those provided for as building standard items as of the
commencement date of this Lease. Tenant shall be responsible for the repair and
restoration of the Demised Premises and Tenant's property beyond Landlord's
obligation at no cost to Landlord, in accordance with the provisions of Section
6, for which it shall maintain adequate insurance pursuant to Section 8.4
herein. In the event of fire or casualty damage to the Demised Premises caused
by the fault or neglect of Tenant, its agents, employees, invitees or visitors,
Landlord shall restore structural damages as described herein at Tenant's cost
and expense. It is agreed that in any of the aforesaid events, this Lease
shall continute in full force and effect.
9.3 UNTENANTABILITY. If the condition referred to in Section 9.2 is
such so as to make the entire premises untenantable, then the rental which
Tenant is obligated to pay hereunder shall xxxxx as of the date of the
occurrence until the premises have been fully and completely restored by
Landlord. Any unpaid or prepaid rent for the month in which said condition
occurs shall be prorated. If the premises are partially damaged or
destroyed, then during the period that Tenant is deprived of the use of the
damaged portion of said premises, Tenant shall be required to pay rental
covering only that part of the premises that it is able to occupy, based on the
portion of the total rent which the amount of square foot area remaining that
can be occupied bears to the total square foot area of all premises covered
by this Lease. In the event the premises are substantially or totally
destroyed by fire or other casualty so as to be entirely untenantable, and
it shall require more than ninety (90) days from the date of said fire or
other casualty for Landlord to complete restoration of same, then Landlord,
upon written notice to Tenant, may terminate this Lease, in which case the
rent shall be apportioned and paid to the date of said fire or other
casualty. Due allowance, however, shall be given for reasonable time
required for adjustment and settlemnent of insurance claims, and for such
other delays as may result from government restrictions, and controls on
construction, if any, and or strikes, national emergencies and other conditions
beyond the control of Landlord. No compensation, or claim, or diminution of
rent will be allowed or paid by Landlord, by reason of inconvenience,
annoyance, or injury to business, arising from the necessity of repairing the
Demised Premises or any portion of the building of which they are a
part.
10. CONDEMNATION
10.1 LANDLORD RIGHTS TO AWARD. Tenant agrees that if the whole or a
substantial part of the Demised Premises shall be taken or condemned for
public or quasi-public use or purpose by any competent authority, Tenant
shall have no claim against Landlord and shall not have any claim or right
to any portion of the amount that may be awarded as damages paid as a result of
any such condemnation. All rights of
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Tenant to damages (therefore if any), are hereby assigned by Tenant to Landlord.
Upon such condemnation or taking, the term of this Lease shall cease and
terminate from the date of such government taking or condemnation. If a portion
of the building or the Demised Premises is taken or condemned, and the remainder
in Landlord's opinion is not economically usable, Landlord shall notify Tenant
of the termination of this Lease effective as of the date of such governmental
taking or condemnation. Tenant shall have no claim against Landlord for the
value for any unexpired term of this Lease. If less than a substantial part of
the Demised Premises is taken or condemned by any governmental authority for
public or quasi-public use or purpose and the remainder is usable by Tenant,
the rent shall be equitably adjusted on the date when title vests in such
governmental authority and the Lease shall otherwise continue in full force
and effect. For the purposes of this Section 10, a substantial part of the
Demised Premises shall be considered to have been taken if more than fifty
percent (50%) of the Demised Premises are unusable by Tenant.
10.2 TENANT RIGHT TO FILE CLAIM. Nothing in Section 10.1 shall preclude
Tenant from filing a separate claim against the condemning authority for the
undepreciated value of its Leasehold improvements and relocation expenses,
provided that any award to Tenant will not result in a diminution of any award
to Landlord.
11. BANKRUPTCY
11.1 EVENTS OF BANKRUPTCY. The following shall be Events of Bankruptcy
under this Lease:
(a) Tenant's becoming insolvent, as the term is defined in Title
11 of the United States Code, entitled Bankruptcy, 11 U.S.C. Sec. 101 et seq.
(the "Bankruptcy Code"), or under the insolvency laws of any State, District,
Commonwealth or Territory of the United States ("Insolvency Laws");
(b) The appointment of a receiver or custodian for any or all of
Tenant's property or assets, or the institution of a foreclosure action upon
any of Tenant's real or personal property;
(c) The filing of a voluntary petition under the provisions of
the Bankruptcy Code or Insolvency Laws;
(d) The filing of an involuntary petition against Tenant as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which is either not
dismissed within thirty (30) days of filing, or results in the issuance of an
order for relief against the debtor, whichever is later; or
(e) Tenant's making or consenting to an assignment for the
benefit of creditors of a common law composition of creditors.
11.2 LANDLORD'S REMEDIES.
(a) Termination of Lease. Upon occurrence of an Event of
Bankruptcy, Landlord shall have the right to terminate this Lease by giving
written notice to Tenant; provided, however, that this Section 11.2(a) shall
have no effect while a notice in which Tenant is the subject debtor under
the Bankruptcy Code is pending, unless Tenant or its Trustee is unable to
comply with the provisions of Section 11.2(d) and (e) below. At all other times
this Lease shall automatically cease and terminate, and Tenant shall be
immediately obligated to quit the premises upon the giving of notice
pursuant to this Section 11.2(a). Any other notice to quit, or notice of
Landlord's intention to re-enter is hereby expressly waived. If Landlord
elects to terminiate this Lease, everything contained in this Lease on the
part of Landlord to be done and performed shall cease without prejudice,
subject, however, to the rights of Landlord to recover from Tenant all rent
and other sums accrued up to the time of termination or recovery of
possession by Landlord, whichever is later, and any other monetary
damages or loss of reserved rent sustained by Landlord.
(b) Suit for Possession. Upon termination of this Lease
pursuant to Section 11.2(a), Landlord may proceed to recover possession under
and by virtue of the provisions of the laws of any applicable jurisdiction,
or by such other proceedings, including reentry and possession, as may be
applicable.
(c) Non-Exclusive Remedies. Without regard to any action by
Landlord as authorized by Section 11.2(a) and (b) above, Landlord may at its
discretion exercise all the additional provisions set forth below in Section 12.
(d) Assumption or Assignment by Trustee. In the event Tenant
becomes the subject debtor in a case pending under the Bankruptcy Code,
Landlord's right to terminate this Lease pursuant to Section 11.2(a) shall be
subject to the rights of the Trustee in Bankruptcy to assume or assign this
Lease. The Trustee shall not have the right to assume or assign this Lease
unless the Trustee (i) promptly cures all defaults under this Lease, (ii)
promptly compensates Landlord for monetary damages, incurred as a result of
such default, and (iii) provides adequate assurance of future performance
on the part of Tenant as debtor in possession or on the part of the
assignee Tenant.
(e) Adequate Assurance of Future Performance. Landlord and Tenant
hereby agree in advance that adequate assurance of future performance, as used
in Section 11.2(d) above, shall mean that all of the following minimium criteria
must be met: (i) Tenant's gross receipts in the ordinary course of business
during the thirty-day period immediately preceding the initiation of the
case under the Bankruptcy Code must be at least two times greater than the
next payment of rent due under this Lease; (ii) Both the average and median
of Tenant's gross receipts in the ordinary course of business during the
six-month period immediately preceding the initiation of the case under
the Bankruptcy Code must be at least two times greater than the next
payment of rent due under this Lease; (iii) Tenant must pay its estimated
pro rata share of cost of all
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services provided by Landlord (whether directly or through agents or contractors
and whether or not previously included as part of the base rent), in advance of
the performance or provision of such services; (iv) The Trustee must agree that
Tenant's business shall be conducted in a first class manner, and that no
liquidating sales, auctions, or other non-first class business operations shall
be conducted on the premises; (v) The Trustee must agree that the use of the
premises as stated in this Lease will remain unchanged and that no prohibited
use shall be permitted; and (vi) The Trustee must agree that the assumption or
assignment of this Lease will not violate or affect the rights of other tenants
in the building.
(f) Failure to Provide Adequate Assurance. In the event Tenant is
unable to (i) cure its defaults, (ii) reimburse the Landlord for its monetary
damages, (iii) pay the rent due under this Lease, and all other payments
required of Tenant under this Lease on time (or within five (5) days), or (iv)
meet the criteria and obligations imposed by Section 11.2(e) above, Tenant
agrees in advance that it has not met its burden to provide adequate assurance
of future performance, and this Lease may be terminated by Landlord in
accordance with Section 11.2(a) above.
12. DEFAULTS & REMEDIES
12.1 DEFAULT. It is agreed that Tenant shall be in default if: Tenant
shall fail to pay the rent, or any installments thereof as aforesaid, at the
time shall become due and payable and/or any additional rent as herein provided
although no demand shall have been made for the same; or Tenant shall violate or
fail or neglect to keep and perform any of the covenants, conditions and
agreements, or rules and regulations herein contained on the part of Tenant
to be kept and performed.
12.2 REMEDIES. In each and every such event set forth in Section 12.1
above, from thenceforth and at all times thereafter, at the option of Landlord,
Tenant's right of possession shall thereupon cease and terminate, and Landlord
shall be entitled to the possession of the Demised Premises and to re-enter the
same without demand of rent or demand of possession of said premises and may
forthwith proceed to recover possession of the Demised Premises by process of
law, any notice to quit being hereby expressly waived by Tenant. In the event of
such re-entry by process of law or otherwise, Tenant nevertheless agrees to
remain answerable for any and all damage, deficiency or loss of rent which
Landlord may sustain by such re-entry, including reasonable attorney's fees and
court costs. If, under the provisions hereof, seven (7) days summons or other
applicable summary process shall be served, and a compromise or settlement
therefor shall be made, such action shall not be constituted as a waiver of any
breach of any covenant, condition or agreement herein contained. No waiver of
any breach of any covenant, condition or agreement, herein contained, on one or
more occasions shall operate as a waiver of the covenant, condition or agreement
itself, or of any subsequent breach thereof. No provision of this Lease shall be
deemed to have been waived by Landlord unless such waiver shall be in writing
signed by Landlord.
12.3 LANDLORD'S RIGHT TO RELET. Should this Lease be terminated before
the expiration of the term of this Lease by reason of Tenant's default as
provided in Section 11 or 12, or if Tenant shall abandon or vacate the premises
before the expiration or termination of the term of this Lease, the Demised
Premises may be relet by Landlord for such rent and upon such terms as are
reasonable under the circumstances. If the full rent reserved under this Lease
(and any of the costs, expenses or damages indicated below) shall not be
realized by Landlord, Tenant shall be liable for all damages sustained by
Landlord, including, without limitation, deficiency in rent, reasonable
attorney's fees, other collection costs, brokerage fees, and expenses of placing
the premises in first-class rentable condition. Landlord, in putting the
premises in good order or preparing the same for rerental may, at Landlord's
option, make such alterations, repairs, or replacements in the premises, and the
making of such alterations, repairs, or replacements in the premises as
Landlord, in Landlord's sole judgment, considers advisable and necessary for the
purpose of reletting the premises, and the making of such alternations, repairs,
or replacements shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable in any
way whatsoever for failure to relet the premises, or in the event that the
premises are relet, for failure to collect the rent thereof under such
reletting. In no event shall Tenant be entitled to receive any excess, if any,
of such net rent collected over the sums payable by Tenant to Landlord
hereunder.
12.4 RECOVERY OF DAMAGES. Any damage or loss of rent sustained by
Landlord may be recovered by Landlord, at Landlord's option, in separate
actions, from time to time, as said damage shall have been ascertained or, at
Landlord's option, may be deferred until the expiration of the term of this
Lease (in which event Tenant hereby agrees that the cause of action shall not be
deemed to have accrued until the date of expiration of said term). The
provisions contained in this paragraph shall be in addition to and shall not
prevent the enforcement of any claim Landlord may have against Tenant for
anticipatory breach of the unexpired term of this Lease. All rights and
remedies of Landlord under this Lease shall be cumulative and shall not be
exclusive of any rights and remedies provided to Landlord under applicable law.
In the event Tenant becomes the subject debtor in a case under the Bankruptcy
Code, the provisions of this Section 12.4 may be limited by the limitations
of damage provisions of the Bankruptcy Code.
12.5 WAIVER. If under the provisions hereof Landlord shall institute
proceedings and a compromise or settlement thereof shall be made, the same shall
not constitute a waiver of any covenant, rule or regulation herein contained nor
of any of Landlord's rights hereunder. No waiver by Landlord of any breach of
any covenant, condition, agreement, rule or regulation herein contained shall
operate as a waiver of such covenant, condition, agreement, rule or regulation
itself, or of any subsequent breach thereof.
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12.6 ANTICIPATORY REPUDIATION. If, prior to the commencement of the
term of this Lease, Tenant notifies Landlord of or otherwise unequivocally
demonstrates as intention to repudiate this Lease, Landlord may, at its option,
consider such anticipatory repudiation a breach of this Lease. In addition to
any other remedies available to it hereunder or at law or in equity, Landlord
may retain all rent paid upon execution of the Lease and the security deposit,
if any, shall be applied to Landlord's damages: reletting, loss of rent, etc. It
is agreed between the parties that for the purpose of calculating Landlord's
damages, in a building which has other available space at the time of Tenant's
breach, the premises covered by this Lease shall be deemed the last space
rented, even though the premises may be rerented prior to such other vacant
space. Tenant shall pay in full for all tenant improvements constructed or
installed within the Demised Premises to the date of the breach, and for
materials ordered at its request for the Demised Premises.
12.7 TENANT ABANDONMENT OF PREMISES.
(a) Abandonment. If the Demised Premises shall be deserted or
vacated by Tenant for thirty (30) consecutive days or more without notice to
Landlord, and Tenant shall have failed to make the current rental payment, the
premises may be deemed abandoned. Landlord may consider Tenant in default
under this Lease and may pursue all remedies available to it under this Lease or
at law.
(b) Landlord Right to Enter and to Relet. If Tenant vacates or
abandons the premises as defined above, Landlord may, at its option, enter into
the premises without being liable for any prosecution therefor or for damages by
reason thereof. In addition to any other remedy, Landlord, as agent of Tenant,
may relet the whole or any part of the premises for the whole or any part of the
then unexpired Lease term. For the purposes of such reletting, Landlord may make
any alterations or modifications of the premises considered desirable in its
sole judgment.
(c) Rights to Dispose of Tenant Property. If Tenant vacates or
abandons the premises as defined above, any property that Tenant leaves on the
premises shall be deemed to have been abandoned and may either be retained by
Landlord as the property of Landlord or may be disposed of at public or private
sale in accordance with applicable law as Landlord sees fit. The proceeds of any
public or private sale of Tenant's property, or the then current fair market
value of any property retained by Landlord, shall be applied by Landlord against
(i) the expenses of Landlord for removal, storage or sale of the property; (ii)
the arrears of rent or future rent payable under this Lease; and (iii) any
other damages to which Landlord may be entitled hereunder.
(d) Transfer of Tenant Property to Creditors. If Tenant vacates or
abandons the premises, as defined above, Landlord may, upon presentation of
evidence of a claim valid upon its face of ownership or of a security interest
in any of Tenant's property abandoned in the premises, turn over such property
to the claimant with no liability to Tenant.
13. SUBORDINATION
13.1 SUBORDINATION. This Lease is subject and subordinate to all ground
or underlying Leases and to all mortgages and/or deeds of trust and/or other
security interests which may now or hereafter affect the real property of which
the Demised Premises form a part, and to all renewals, modifications,
consolidations, replacements and extensions thereof. This clause shall be
self-operative and no further instrument of subordination shall be required to
effect this subordination. Notwithstanding the foregoing, in confirmation of
such subordination, Tenant shall at Landlord's request execute and deliver to
Landlord within ten (10) business days after Landlord's request, any requisite
or appropriate certificate, subordination agreement or other document that may
be reasonably requested by Landlord or any other party requiring such
certificate, subordination agreement or document. If Tenant fails to execute
such certificate, subordination agreement or other document within said ten (10)
day period, Tenant by such failure irrevocably constitutes and appoints Landlord
as its special attorney-in-fact to execute such certificate, subordination
agreement or other document on Tenant's behalf. Notwithstanding the foregoing
subordination, Tenant agrees that any landlord under any ground or underlying
Lease, and any mortgagee or trustee under any security agreement to which this
Lease is now, or may hereafter, become subject or subordinate, may elect to
continue this Lease and Tenant agrees that in such event neither the
cancellation nor termination of any ground or underlying Lease, nor the
foreclosure under any mortgage or deed of trust, nor the sale at foreclosure,
nor the transfer by a deed in lieu of foreclosure, shall, by operation of law or
otherwise, result in cancellation or termination of this Lease or the
obligations of Tenant hereunder and this Lease shall continue as a direct Lease
between Tenant and such landlord, mortgagee, purchaser or trustee.
13.2 ESTOPPEL CERTIFICATES. Tenant shall execute and return within ten
(10) business days any certificate that Landlord may request from time to time,
stating that this Lease is unmodified and in full force and effect, or in full
force and effect as modified, and stating the modification. The certificate also
shall state (a) the amount of base monthly rent and the dates to which the rent
has been paid in advance; (b) the amount of any security deposit or prepaid
rent; (c) that there is no present default on the part of Landlord, or attach a
memorandum stating any such instance of default; (d) that Tenant has no right
to setoff and no defense or counterclaim against enforcement of its obligations
under this Lease; (e) that Tenant has no other notice of any sale, transfer or
assignment of this Lease or of the rentals; (f) that all work required of
Landlord has been completed and that the work is accepted as satisfactory; (g)
that Tenant is in full and complete possession of the Demised Premises; (h)
the date on which rent commenced and the date to which it is paid; (i) that
Tenant has not advanced any amounts to or on behalf of Landlord which have not
been reimbursed; (j) that Tenant understands that this Lease has been
collaterally assigned to Landlord's mortgagee as security for a loan to
Landlord; (k) that rent may not be prepaid without the prior written approval of
Landlord's mortgagee; and
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(l) such other items as Landlord may reasonably request. Failure to deliver the
certificate within the ten (10) business days shall be (conclusive) upon Tenant
for the benefit of Landlord and any successor to Landlord that this Lease is in
full force and effect and has not been modified except as may be represented by
the party requesting the certificate. If Tenant fails to deliver the certificate
within the ten (10) business days, Tenant by such failure irrevocably
constitutes and appoints Landlord as its special attorney-in-fact to execute and
deliver the certificate to any third party.
13.3 ATTORNMENT. Tenant covenants and agrees that, in the event of any
foreclosure under any mortgage or deed of trust, or any renewal, modification,
consolidation, replacement or extension thereof, or in the event of any
acceptance of any deed in lieu of foreclosure, which may now or hereafter affect
the real property of which the Demised Premises are a part, Tenant shall attorn
to the party secured by such mortgage or deed of trust, or any renewal,
modification, consolidation, replacement or extension thereof, and to any
purchaser at any foreclosure sale or party taking a deed in lieu of foreclosure.
Tenant covenants and agrees to attorn to any successor to Landlord's interest in
any ground or underlying Lease. In any case, such landlord or successor under
such ground or underlying Lease or such secured party or purchaser at
foreclosure sale or party taking a deed in lieu of foreclosure shall not be
bound by any prepayment on the part of Tenant of any rent for more than one
month in advance, so that rent shall be payable under this Lease in accordance
with its terms, from the date of the termination or transfer of the ground or
underlying Lease or the foreclosure under such mortgage or deed of trust, or the
date of foreclosure sale or transfer by deed in lieu of foreclosure, as if such
prepayment had not been made. Further, such landlord or successor in interest
shall not be liable for damages for any act or omission of Landlord or any prior
landlord or be subject to any offsets or defenses which Tenant may have against
Landlord or any prior landlord. Tenant shall, upon request of such landlord or
successor landlord, execute and deliver an instrument or instruments confirming
Tenant's attornment.
13.4 MORTGAGEE RIGHTS.
(a) Tenant shall, at its own expense, comply with all reasonable
notices of Landlord's mortgagee or other financial institution providing funds
which are secured by a mortgage or deed of trust placed on the whole or any part
of the real property of which the Demised Premises are a part, respecting all
matters of occupancy, use, condition or maintenance of the Demised Premises,
provided the same shall not unreasonably interfere with the conduct of Tenant's
business nor materially limit or affect the rights of the parties under this
Lease. Notwithstanding acceptance and execution of this Lease by the parties
hereto, the terms hereof shall be deemed automatically modified, if so
required, for the purpose of complying with or fulfilling the reasonable
requirements of any mortgagee or trustee named or secured by a mortgage or
deed of trust that may now or hereafter be placed upon or secured by the real
property of which the Demised Premises are a part or any part thereof, or any
other financial institution providing funds to finance or refinance the real
property of which the Demised Premises are a part, provided, however, that such
modifications(s) shall not be in material derogation or diminution of any of the
rights of the parties hereunder, nor materially increase any of the obligations
or liabilities of the parties hereunder.
(b) Tenant agrees to give Landlord's mortgagee and any trustee
named or secured by a mortgage or deed of trust a copy of any notice of default
served upon Landlord by Tenant, provided that prior to such notice Tenant has
been notified in writing (by way of Notice of Assignment of Rents and Leases, or
otherwise) of addresses of such mortgagees and trustees. Notice shall be
provided to the mortgagees and trustees by registered mail. Tenant further
agrees that if Landlord shall have failed to cure such default within the cure
period provided in this Lease, if any, then the mortgagees and/or trustees shall
have an additional thirty (30) days within which to cure such default, or if
such default cannot be cured within that time, then such additional time as
may be necessary if within such thirty (30) days any mortgagee and/or trustee
has commenced and is diligently pursuing the remedies necessary to cure such
default (including but not limited to commencement of foreclosure proceedings
if necessary to effect such cure), in which event this Lease shall not be
terminated while such remedies are being diligently pursued.".
14. TENANT HOLDOVER
14.1 WITH LANDLORD CONSENT. If Tenant continues, with the knowledge and
written consent of Landlord obtained at least thirty (30) days prior to the
expiration of the term of this Lease, to remain in the premises after the
expiration of the term of this Lease, then and in that event, Tenant shall, by
virtue of this holdover agreement, become a tenant by the month at the rent
stipulated by Landlord in said holdover agreement, commencing said monthly
tenancy with the first day next after the end of the term above demised. Tenant
shall give to Landlord at least thirty (30) days' written notice of any
intention to quit said premises. Tenant shall be entitled to thirty (30) days'
written notice to quit said premises, except in the event of nonpayment of rent
in advance or of the breach of any other covenant by Tenant, in which event
Tenant shall not be entitled to any notice to quit, the usual thirty (30) days'
notice to quit being hereby expressly waived.
14.2 WITHOUT LANDLORD CONSENT. In the event that Tenant, without the
consent of Landlord, shall hold over the expiration of the term hereby created,
then Tenant hereby waives all notice to quit and agrees to pay to Landlord for
the period that Tenant is in possession after the expiration of this Lease, a
monthly rent which is three times the total rent (base monthly rent, as
stipulated in Section 1.3, plus additional rent, as stipulated in Section 1.5)
applicable to the last month of this Lease. Tenant expressly agrees to hold
Landlord harmless from all loss and damages, direct and consequential, which
Landlord may suffer in defense of claims by other parties against Landlord
arising out of the holding over by Tenant, including without limitation
attorneys fees which may be incurred by Landlord in defense of such claims.
Acceptance of rent by Landlord subsequent to the expiration of the term of this
Lease shall not constitute consent to any holding over. Landlord shall have
the right to apply all payments received after the expiration date of this
Lease or any renewal thereof toward payment for use and occupancy of the
premises subsequent to the expiration of the term and toward any other sums owed
by Tenant to Landlord. Landlord, at its option, may forthwith re-
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enter and take possession of said premises without process, or by any legal
process in force. Notwithstanding the foregoing, Tenant's holdover without
Landlord consent due to acts of God, riot, or war shall be at the total rent
applicable to the last month of the term for the duration of the condition (but
not to exceed ten days), but such continued occupancy shall not create any
renewal of the term of this Lease or a tenancy from year-to-year, and Tenant
shall be liable for any loss and damages suffered by Landlord as described
above.
15. SECURITY DEPOSIT
15.1 Tenant shall deposit with Landlord simultaneously with the
execution of this Lease, the amount stipulated in Section 1.6 as a security
deposit. Provided Tenant is not in default in the payment of rent or any other
charges due Landlord, and further provided the Demised Premises are left in good
condition, reasonable wear and tear excepted, as described in Section 6.10, said
deposit (which shall not bear interest to Tenant) shall be returned to Tenant
within thirty (30) days after the termination of this Lease. If Tenant is in
default or if the premises are not left in good condition, then the security
deposit shall be applied to the extent available on account of sums due
Landlord or the cost of repairing damages to the Demised Premises. In the event
of the sale or transfer of Landlord's interest in the building, Landlord shall
have the right to transfer the security deposit to such purchaser or transferee,
in which event Tenant shall look only to the new Landlord for the return of the
security deposit and Landlord shall thereupon be released from all liability to
Tenant for the return of such security deposit.
16. QUIET ENJOYMENT
16.1 So long as Tenant shall observe and perform the covenants and
agreements binding on it hereunder, Tenant shall at all times during the term
herein granted, peacefully and quietly have and enjoy possession of the premises
without any encumbrance or hindrance by, from or through Landlord, except as
provided for elsewhere under this Lease. Nothing in this Section shall prevent
Landlord from performing alterations or repairs on other portions of the
building not Leased to Tenant, nor shall performance of such alterations or
repairs be construed as a breach of this covenant by Landlord.
17. SUCCESSORS
17.1 All rights, remedies and liabilities herein given to or imposed
upon either of the parties hereto, shall extend to their respective heirs,
executors, administrators, successors, and assigns. This provision shall not be
deemed to grant Tenant any right to assign this Lease or to sublet the premises.
18. WAIVER OF JURY TRIAL
18.1 Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other one or in respect of any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant hereunder,
Tenants's use or occupancy of the Demised Premises, and/or any claim of "injury
or damage."
19. LIMITATION OF LIABILITY
19.1 Notwithstanding anything to the contrary contained in this Lease,
if any provision of this Lease expressly or impliedly obligates Landlord not to
unreasonably withhold its consent or approval, an action for declaratory
judgment or specific performance will be Tenant's sole right and remedy in any
dispute as to whether Landlord has breached such obligation.
20. PRONOUNS & DEFINITIONS
20.1 Feminine or neuter pronouns shall be substituted for those of the
masculine form, and the plural shall be substituted for the singular number, in
any place or places herein in which the context may require such substitution or
substitutions. Landlord and Tenant herein for convenience have been referred to
in the neuter form.
20.2 Wherever the word "premises" is used in this Lease, it shall refer
to the Demised Premises described in Section 1.1, unless the context clearly
requires otherwise.
21. NOTICES
21.1 ADDRESSES FOR NOTICES. All notices required or desired to be given
hereunder by either party to the other shall be personally delivered or given by
certified or registered mail and addressed as specified in Section 1.10. Either
party may, by like written notice, designate a new address to which such notices
shall be directed.
21.2 EFFECTIVE DATE OF NOTICE. Notice shall be deemed to be effective
when personally delivered or received or rejected unless otherwise stipulated
herein.
22. EXHIBITS; SPECIAL PROVISIONS
22.1 INCORPORATION IN LEASE. It is agreed and understood that any
Exhibits and Special Provisions referred to in Sections 1.11 and 1.12,
respectively, and attached hereto, form an integral part of this Lease and are
hereby incorporated by reference.
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22.2 CONFLICTS. If there is a conflict between a Special Provision
hereto and the Specific Provisions or General Provisions of the Lease, the
Special Provision shall govern.
23. CAPTIONS
23.1 All Section and paragraph captions herein are for the convenience
of the parties only, and neither limit nor amplify the provisions of this Lease.
24. ENTIRE AGREEMENT; MODIFICATION
24.1 This Lease, all Exhibits hereto, and Special Provisions
incorporated herein by reference contain all the agreements and conditions made
between the parties and may not be modified orally or in any other manner than
by an agreement in writing, signed by the parties hereto.
25. SEVERABILITY
25.1 The unenforceability, invalidity, or illegality of any provision
herein shall not render any other provision herein unenforceable, invalid, or
illegal.
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26. ADDITIONAL RENT
26.1 In Subsection 2.2(b)(i), in the eighth line, after 'taxes' insert
a period and delete the rest of the sentence.
26.2 In Subsection 2.2(b)(ii), in the fifth line, after 'taxes;' insert
the following:
"costs of alterations or improvements of the premises, or the premises of
other tenants; interest, principal payments, and other costs of any indebtedness
encumbering the Building; legal fees, space planner fees, architectural fees,
engineering fees, and marketing and advertising expenses incurred in connection
with the leasing of the Building; costs for which Landlord is reimbursed by
insurance or by its carriers or any tenant carrier; any bad debt loss, rent loss
or reserves for bad debt or rent loss; costs associated with the operation of
the business of the legal entity which constitutes the Landlord as the same is
distinguished from the costs and operations of the Building, including legal
entity formation, internal entity accounting and legal matters; costs of
defending any lawsuits with mortgagees (except as actions of any tenant may be
an issue); cost of selling, syndicating, financing, mortgaging or hypothecating
any of Landlord's interests in the Building; costs of disputes between Landlord
and any third party not relating to the Building; wages of employees who do not
devote the majority of their time to the Building, provided however, the costs
associated with such employees who do not devote the majority of their time to
the Building may be prorated and such an amount shall be included as an
Operating Expense to the extent that such employees do devote their time to the
Building; lease payments for rented equipment, the cost of which equipment would
constitute a capital expenditure if the equipment were purchased; insurance
premiums to the extent Landlord is reimbursed for the same other than through
Operating Expenses; the costs of any HVAC services provided to other tenants
other than during normal business hours; charges (including applicable taxes)
for electricity or any other utilities for which Landlord is reimbursed by any
tenant; the cost of any work or service performed for any tenant (including
Tenant) at such tenant's cost; capital costs of complying with governmental
regulations if such regulations are applicable to all buildings generally
without regard to use; cost of artwork in the Building other than artwork in the
common areas of the Building; charitable contributions; salaries for personnel
above the position of building manager; expenses resulting from Landlord's gross
negligence or willful misconduct; the costs of clean up of hazardous materials,
if caused by Landlord's or any tenant's gross negligence or willful
misconduct;".
26.3 In Subsection 2.3(c), in the eleventh line, change 'thirty (30)'
to "sixty (60)".
26.4 In Subsection 2.3(d), in the first line, change 'ten (10)' to
"thirty (30)"; and in the fourth and fifth lines, change 'thirty (30)' to
"ninety (90)".
27. PRO RATA SHARE
27.1 The definition of Tenant's pro rata share in Section 2.6 shall
apply only to that pro rata share stipulated in Subsection 1.5(b). Tenant's pro
rata share stipulated in Subsection 1.5(a) represents the ratio that the area
of the demised premises bears to the total area of office and retail space
contained in the building.
28. WAIVER OF RENT
28.1 Provided Tenant is not then in default under any of the terms and
conditions of this Lease, then notwithstanding anything to the contrary in
Section 2.1, Landlord agrees to waive Seven Hundred Seventy and 78/100 Dollars
($770.78) of Base Annual Rent due in each of the first (1st) through the fourth
(4th) months of the initial Lease term, and Three Thousand Five Hundred
Forty-Six and 63/100 Dollars ($3,546.63) of Base Annual Rent due in each of the
fifth (5th) through the sixty-fourth (64th) months of the initial Lease term.
Notwithstanding anything herein, Additional Rent, if any, payable pursuant to
Subsections 1.5(c) and 2.2(c) shall be calculated without regard to any waiver
of rent or rent credit provided to Tenant.
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29. REIMBURSEMENT FOR TENANT'S IMPROVEMENTS
29.1 Provided Tenant is not then in default of any of the terms or
conditions of this Lease, Landlord shall reimburse Tenant for improvements
completed by Tenant in the demised premises and/or for professional fees related
thereto or for moving expenses, in an amount which, together with sums owed by
Tenant to Landlord's contractors, does not exceed Forty-One Thousand Three
Hundred Twenty and 00/100 Dollars ($41,320.00). Such reimbursement shall be
paid upon presentation by Tenant of paid receipted invoices approved by Tenant
for such improvements, professional fees or moving expenses, any required
certificate of occupancy or inspection approval and final waiver of lien forms
from all of Tenant's contractors.
30. ACCEPTANCE OF SPACE
30.1 Tenant accepts the demised premises in its existing "as is"
condition and shall be obligated for the payment of rent on the Lease
Commencement Date, regardless of any time required by Tenant to construct, alter
or redecorate the demised premises to Tenant's requirements.
31. PARKING
31.1 Landlord agrees to arrange for parking in the garage of the
building described in Section 1.1 for up to thirty-five (35) automobiles of
Tenant or Tenant's employees at the prevailing monthly rate for such service.
32. RENEWAL OPTION
32.1 Provided that Tenant is in compliance with all of the terms and
conditions of this Lease, and further provided that Tenant gives written notice
to Landlord on or before October 31, 2000, time being of the essence, Tenant
shall have the right to extend the term of this Lease for a further term of
three (3) years, from May 1, 2001, to April 30, 2004. This provision shall be
contingent upon Tenant occupying a substantial portion (51% or more) of the
demised premises. upon the commencement date of the extended term. Such
extension shall be under terms, covenants and conditions, including the then
fair market value base annual rent and additional rent, to be mutually agreed
upon between the parties. In no event, however, shall the base annual rent
for the extended term be less than the base annual rent applicable to the last
year of the existing lease term plus any Additional Rent applicable to the last
year pursuant to the provisions of Sections 1.5 and 2.2. If Landlord and
Tenant fail to agree upon such new terms, covenants and conditions, including
the then fair market value base annual rent and additional rent, for the
extended term by December 31, 2000, then Landlord shall have no further
obligation to Tenant with respect to extension of the term.
33. SUBLETTING AND ASSIGNMENT
33.1 Notwithstanding the requirement to the contrary in Section 4.1,
provided Tenant is not then in default of any of the terms or conditions of this
Lease, Tenant shall not be required to obtain Landlord's consent to assign this
Lease or sublet all or any part of the demised premises to any successor,
parent, subsidiary or affiliated company, but Tenant shall furnish Landlord with
written notice and a fully-executed copy of any such assignment agreement, or
sublease together with a floor plan of the sublet area. Any such subletting or
assignment shall be subject to the remaining provisions of Sections 4.1 and 4.4.
19
23
33.2 In the event Landlord does not exercise its right to terminate
this Lease, provided Tenant is not then in default of any of the terms or
conditions of this Lease, Tenant may sublet all or a portion of the demised
premises after first obtaining the written consent of the Landlord, provided
that Fifty Percent (50%) of the excess of any rent accruing to Tenant as a
result of such sublease over the rent then being paid by Tenant for the sublet
area shall be paid by Tenant to Landlord as additional monthly rent. Tenant
shall be permitted to deduct the reasonable expenses it incurs in subleasing
such space, limited to reasonable advertising costs, reasonable brokerage
commissions and remodeling costs (which remodeling costs shall not exceed Five
Dollars ($5.00) per square foot), before arriving at the net excess rent to be
shared with Landlord pursuant to this paragraph. Tenant shall provide
documentation of such expenses prior to Landlord giving its written consent
for subletting.
33.3 In Section 4.1, in the third line, after 'Landlord,' insert
"which shall not be unreasonably withheld, conditioned or delayed." and delete
the rest of the sentence.
33.4 in Section 4.2, in the first line, delete 'or assign'; in the
second line, delete 'or assignee'; in the third line, change 'ninety (90)' to
"thirty (30)"; in the fourth line, change 'thirty (30)' to "sixty (60)"; in the
fifth line, delete 'an assignment..or a' and change 'fifty percent (50%)' to
"eighty percent (80%)"; and delete the last sentence entirely.
34. SERVICES AND UTILITIES
34.1 In Section 5.1, in the second line, after 'calculators,' insert
"personal computer equipment, servers, web site,"; and in the last line, after
'Lease' insert "unless the demised premises are untenantable for five (5)
consecutive business days due to Landlord's negligence, in which event Tenant
may xxxxx paying rent until such service is restored".
34.2 In Section 5.2, in the second line, change '72' to "24".
34.3 In Subsection 5.3(c), in the fourth line, after the first
'Tenant' insert "only if excess consumption is established".
35. USE AND UPKEEP OF PREMISES
35.1 In Subsection 6.4(a), in the first line, before 'Tenant' insert
"Except for cosmetic changes and decorations,"; and in the third line, after
'Landlord' insert "which shall not be unreasonably withheld or delayed".
35.2 In Subsection 6.4(b), in the eleventh line, change 'five (5)' to
"ten (10)".
35.3 In Subsection 6.4(c), in the eighth line, after 'expense' insert
"provided Landlord so advised Tenant when Tenant requested Landlord's consent
thereto"; and delete the last two sentences entirely.
36. ACCESS TO PREMISES
36.1 In Section 7.1, in the second line, after 'times' insert "after
reasonable notice(except in emergencies)"; and in the fourth line, change 'six
(6)' to "three (3)".
20
24
37. LIABILITY
37.1 In Section 8.1, in both the fourth and seventh lines, after
'negligence' insert "or willful misconduct".
37.2 In Section 8.2, in the fifth line, after the first 'Tenant'
insert a period and delete the rest of the sentence.
37.3 In Section 8.3, delete the last sentence entirely.
38. DAMAGE
38.1 In Section 9.2, in the second line, delete 'fault or neglect' and
substitute "negligence", after 'agents' change the comma to "or" and delete
'invitees or visitors,'; in the ninth and tenth lines, delete 'for as building
standard items' and insert "at Landlord's expense"; and in the penultimate
sentence, delete 'fault or neglect' and substitute "negligence", after 'agents'
change the comma to "or" and delete 'invitees or visitors,'.
38.2 In Section 9.3, in eleventh line, after 'Landlord' insert "or
Tenant" and change 'Tenant' to "the other".
39. CONDEMNATION
39.1 In Section 10.1, after the second sentence, insert "Tenant shall
have the right to file a separate claim pursuant to Section 10.2"; and in the
last line, change 'fifty percent (50%)' to "thirty-five percent (35%)".
40. DEFAULTS AND REMEDIES
40.1 Notwithstanding anything to the contrary in Sections 2.1 and
12.1, if Tenant defaults in the payment of rent, or defaults in the performance
of any other covenants, conditions and agreements, or rules and regulations
herein contained, Landlord shall give Tenant written notice of such default. If
Tenant fails to cure any rent (or additional rent) default within ten (10) days,
or fails to cure any other default within twenty (20) days after such notice
(or if such other default is of such nature that it cannot be completely cured
within said twenty (20) days, if Tenant fails to commence to cure within said
twenty (20) days and thereafter proceed with reasonable diligence and in good
faith), then Landlord, in addition to all other rights pursuant to this Lease,
may terminate this Lease on not less than ten (10) days notice to Tenant. On
the date specified in such notice, the term of this Lease shall terminate, and
Tenant shall then quit and surrender the premises to Landlord. If this Lease
shall have been so terminated by Landlord, Landlord may at any time thereafter
take possession of the demised premises by any lawful means and remove Tenant
or other occupants and their effects. Nevertheless, in the event Tenant fails to
pay rent or otherwise defaults in the performance of any of the covenants,
conditions and agreements or rules and regulations herein contained, more than
two (2) times in any twelve (12) month period, Landlord shall not be
required during the remainder of the term of this Lease to send written
notice before proceeding with its remedies under Section 12. Tenant
acknowledges that the purpose of the preceding sentence is to prevent
repetitive defaults by Tenant under the Lease, which work a hardship upon
Landlord and deprive Landlord of the timely performance by Tenant hereunder.
40.2 In Section 12.3, in the eleventh line, delete 'sole' and
substitute "reasonable".
40.3 In Section 12.6, delete the third sentence entirely.
21
25
41. SUBORDINATION
41.1 In Section 13.1, delete the fourth sentence entirely; and in the
sixth line, change 'ten (10)' to "fifteen (15)".
41.2 In Section 13.2, in each of the first, fourteenth and seventeenth
lines, change 'ten (10)' to "fifteen (15)".
42. TENANT'S HOLDOVER
42.1 In Section 14.2, in the fourth line, delete 'three' and
substitute "two"; and in the sixth line, delete ',direct and consequential,'.
43. LIMITATION OF LIABILITY
43.1 Section 19.1 is hereby deleted entirely.
44. EXECUTION OF DOCUMENT
44.1 In the event Tenant does not execute and return this document by
the close of business on December 19, 1995, then Landlord may market the subject
space to others without further notice to Tenant.
22
26
ADDITIONAL SPACE
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE made this 3rd day of April, 1997, by and
between FIRST ROCK SPRING PARK LIMITED PARTNERSHIP, a Maryland limited
partnership (hereinafter "Landlord"), and OPTICAL TECHNOLOGY GROUP, INC., a
Maryland corporation (hereinafter "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant desire to amend that certain lease agreement
dated January 25, 1996 (the "Lease"), which provides for the leasing of Suites
205, 803, 805, and 809, consisting of approximately 8,264 square feet on the
second (2nd) and eighth (8th) floors of One Democracy Plaza, located at 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx, for a term expiring April 30, 2001; and
WHEREAS, Tenant desires to lease an additional area of 824 square feet on
the second (2nd) floor of said building known as Suite 208, as delineated on the
attached plan.
NOW, THEREFORE, the parties hereto agree as follows:
1. AREA. Landlord hereby leases to Tenant and Tenant leases from
Landlord, Suite 208, containing approximately 824 square feet of additional
space on the second (2nd) floor (the "Additional Leased Space"), making the
total demised premises 9,088 square feet.
2. TERM. The term of the Additional Leased Space shall commence
April 1, 1997, and shall expire contemporaneously with the term of the Lease.
3. RENT. The base monthly rent for the Additional Leased Space
shall be One Thousand Eight Hundred Eighty-Eight and 33/100 Dollars ($1,888.33),
thereby increasing the total base monthly rent from Eighteen Thousand Nine
Hundred Thirty-Eight and 34/100 Dollars ($18,938.34) to Twenty Thousand Eight
Hundred Twenty-Six and 67/100 Dollars ($20,826.67), payable in advance in
accordance with the terms of the Lease.
4. ACCEPTANCE OF SPACE. Tenant shall accept the Additional Leased
Space in its existing "as is" condition and shall be obligated for the payment
of rent hereunder, on April 1, 1997, regardless of any time required to
construct, alter or redecorate the Additional Leased Space to Tenant's
requirements.
5. RENT WAIVER. Provided Tenant is not then in default under any
of the terms and conditions of the Lease, then notwithstanding anything to the
contrary in Section 2.1 of the Lease, Landlord agrees to waive payment of One
Hundred Sixty and 02/100 Dollars ($160.02) of Base Annual Rent due each month of
the initial term for the Additional Leased Space only.
6. PARKING. Landlord agrees to arrange for parking in the garage
of the building for up to eleven (11) additional automobiles of Tenant or
Tenant's employees at the prevailing monthly rate for such service thereby
increasing Tenant's parking allocation from thirty-five (35) to forty-six (46)
automobiles.
7. LANDLORD'S CONTRIBUTION. Landlord agrees to contribute the sum
of up to Eight Thousand Two Hundred Forty and 00/100 Dollars ($8,240.00)
towards the cost of Tenant's remodeling of the Additional Leased Space, which
amount Tenant shall receive in the form of a credit toward such remodeling
costs.
27
FIRST AMENDMENT TO LEASE
PAGE TWO
8. RENEWAL OPTION. Provided that Tenant is in compliance with all
of the terms and conditions of the Lease on the date Tenant gives written notice
as provided below and thereafter through the commencement date of the extended
term, and further provided that Tenant gives written notice to Landlord on or
before July 31, 2000, time being of the essence, Tenant shall have the right to
extend the term of the Lease for a further term of five (5) years, from May 1,
2001, to April 30, 2006. This provision shall be contingent on Tenant occupying
a substantial portion (51% or more) of the Demised Premises on the date Tenant
gives written notice as provided above and on the commencement date of the
extended term. Such extension shall be under the terms, covenants and
conditions, including the fair market value base annual rent then in effect for
the length of the extended term, and a formula for additional rent which shall
be agreed to by the parties. In no event, however, shall the base annual rent
for the extended term be less than the Base Annual Rent applicable to the last
year of the initial Lease Term plus any Additional Rent applicable to said year
pursuant to the provisions of Sections 1.5 and 2.2 of the Lease. If Landlord and
Tenant fail to agree on such new terms, covenants and conditions, including the
fair market value base annual rent and a formula for additional rent for the
extended term, by August 31, 2000, then Landlord shall have no further
obligation to Tenant with respect to extension of the Lease Term.
9. EXECUTION OF DOCUMENT. In the event Tenant does not execute and
return this document by the close of business on March 31, 1997, then Landlord
may market the subject space to others without further notice to Tenant.
10. LEASE. All of the terms and conditions of the Lease, as
modified by this First Amendment to Lease, shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the day and year hereinbefore first written.
WITNESS: LANDLORD: FIRST ROCK SPRING PARK
LIMITED PARTNERSHIP
/s/ Xxxxxxxxx X. Halston BY /s/ Xxxxxx X. Xxxxx
----------------------------- ---------------------------------(SEAL)
General Partner
ATTEST: TENANT: OPTICAL TECHNOLOGY
GROUP, INC.
/s/ Xxxxxxxx X. Xxxxxx BY /s/ Xxxxxxx Xxx
----------------------------- ---------------------------------(SEAL)
Secretary Name:
(Corporate Seal) Title:
28
ADDITIONAL SPACE
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE made this 15th day of April, 1997 by and
between FIRST ROCK SPRING PARK LIMITED PARTNERSHIP, a Maryland limited
partnership (hereinafter "Landlord"), and OPTICAL TECHNOLOGY GROUP, INC., a
Maryland corporation (hereinafter "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant desire to amend that certain lease
agreement dated January 25, 1996 (the "Lease"), as amended by a First Amendment
to Lease of even date herewith, which provides for the leasing of Suites 205,
208, 803, 805, and 809, consisting of approximately 9,088 square feet on the
second (2nd) and eighth (8th) floors of One Democracy Plaza, located at 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx, for a term expiring April 30, 2001; and
WHEREAS, Tenant desires to lease an additional area of 2,635 square feet
on the second (2nd) floor of said building known as Suite 206, as delineated on
the attached plan.
NOW, THEREFORE, the parties hereto agree as follows:
1. AREA. Landlord hereby leases to Tenant and Tenant leases from
Landlord, Suite 206, containing approximately 2,635 square feet of additional
space on the second (2nd) floor (the "Additional Leased Space"), making the
total demised premises 11,723 square feet.
2. TERM. The term of the Additional Leased Space shall commence
June 1, 1997, and shall expire contemporaneously with the term of the Lease.
3. RENT. The base monthly rent for the Additional Leased Space
shall be Six Thousand Thirty-Eight and 55/100 Dollars ($6,038.55), thereby
increasing the total base monthly rent from Twenty Thousand Eight Hundred
Twenty-Six and 67/100 Dollars ($20,826.67) to Twenty-Six Thousand Eight Hundred
Sixty-Five and 22/100 Dollars ($26,865.22), payable in advance in accordance
with the terms of the Lease.
5. ACCEPTANCE OF SPACE. Tenant shall accept the Additional Leased
Space in its existing "as is" condition and shall be obligated for the payment
of rent hereunder, on June 1, 1997, regardless of any time required to
construct, alter or redecorate the Additional Leased Space to Tenant's
requirements.
6. RENT WAIVER. Provided Tenant is not then in default under any
of the terms and conditions of the Lease, then notwithstanding anything to the
contrary in Section 2.1 of the Lease, Landlord agrees to waive payment of
$482.30 of Base Annual Rent due each month of the initial term for the
Additional Leased Space only.
7. LANDLORD'S CONTRIBUTION. Landlord agrees to contribute the sum
of up to Twenty-Six Thousand Three Hundred Fifty and 00/100 Dollars
($26,350.00) towards the cost of Tenant's remodeling of the Additional Leased
Space, which amount Tenant shall receive in the form of a credit toward such
remodeling costs.
29
SECOND AMENDMENT TO LEASE
PAGE TWO
8. ADDITIONAL RENT. Tenant's pro rata share of any increases in
Real Estate Taxes and Operating Expenses commencing June 1, 1998, shall be
increased by 1.70 percentage points, from 4.09% to 5.79%.
9. EXECUTION OF DOCUMENT. In the event Tenant does not execute and
return this document by the close of business on March 31, 1997, then Landlord
may market the subject space to others without further notice to Tenant.
10. LEASE. All of the terms and conditions of the Lease, as
modified by a First Amendment to Lease, and by this Second Amendment to Lease,
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the day and year hereinbefore first written.
WITNESS: LANDLORD: FIRST ROCK SPRING PARK
LIMITED PARTNERSHIP
/s/ Xxxxxxxx X. Halston BY /s/ Xxxxxx X. Xxxxx
----------------------------- ---------------------------------(SEAL)
General Partner
ATTEST: TENANT: OPTICAL TECHNOLOGY
GROUP, INC.
/s/ Xxxxxxxx X. Xxxxxx BY /s/ Xxxxxxx Xxx
----------------------------- ---------------------------------(SEAL)
Secretary Name:
(Corporate Seal) Title:
30
ADDITIONAL SPACE
THIRD AMENDMENT TO LEASE
AND LEASE EXTENSION AGREEMENT
THIS THIRD AMENDMENT TO LEASE AND LEASE EXTENSION AGREEMENT made this 1st
day of October, 1997, by and between FIRST ROCK SPRING PARK LIMITED PARTNERSHIP,
a Maryland limited partnership (hereinafter "Landlord"), and OPTICAL TECHNOLOGY
GROUP, INC., a Maryland corporation (hereinafter "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant desire to further amend that certain lease
agreement dated January 25, 1996 (the "Lease"), as amended by a First Amendment
to Lease dated April 3, 1997, and by a Second Amendment to Lease dated April 15,
1997, which provides for the leasing of Suites 205, 206, 208, 803, 805 and 809,
consisting of approximately 11,723 square feet on the second (2nd) and eighth
(8th) floors (the "Existing Demised Premises") of One Democracy Plaza, located
at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx, for a term expiring April 30,
2001; and
WHEREAS, Tenant desires to lease an additional area of 14,937 square feet
on the eighth (8th) floor of said building known as Suite 800, as delineated on
the attached plan, and return 5,255 square feet on the second (2nd) floor of
said building known as Suites 205, 206 and 208, for a net gain of 9,682 square
feet; and
WHEREAS, the parties hereto desire to extend the term of the aforesaid
Lease.
NOW, THEREFORE, the parties hereto agree as follows:
1. TERM OF EXTENSION. The Lease is hereby extended for a further
period of one (1) year and five (5) months, commencing May 1, 2001, and expiring
September 30, 2002 (the "Extended Term").
2. BASE ANNUAL RENT AND ADDITIONAL RENT FOR THE EXISTING AMOUNT OF
DEMISED PREMISES. The Base Annual Rent and Additional Rent for the existing
amount of Demised Premises, that is, 11,723 square feet, commencing May 1, 2001,
shall be at the same rates and under the same terms as specified in the Lease
and the First and Second Amendments thereto.
3. PARKING FOR THE EXISTING DEMISED PREMISES. Tenant shall continue to
have parking in the garage of the Building for up to forty-six (46) automobiles
of Tenant or Tenant's employees at the prevailing monthly rate for such service
during the extended term for the existing amount of the Demised Premises.
4. INCREMENTAL ADDITIONAL LEASED SPACE AREA. Landlord hereby leases to
Tenant and Tenant leases from Landlord, Suite 800, containing an incremental
amount of approximately 9,682 square feet (and actual amount of 14,937 square
feet) of additional space on the eighth (8th) floor (the "Incremental Additional
Leased Space"). Tenant hereby returns to Landlord, effective September 30, 1997,
Suites 205, 206 and 208, containing approximately 5,255 square feet, on the
second (2nd) floor of the Building.
5. TERM FOR THE INCREMENTAL ADDITIONAL LEASED SPACE. The term of the
Incremental Additional Leased Space shall commence October 1, 1997, and shall
expire contemporaneously with the term of the Lease, as hereby extended.
31
THIRD AMENDMENT TO LEASE
AND LEASE EXTENSION AGREEMENT
PAGE TWO
6. BASE RENT FOR THE INCREMENTAL ADDITIONAL LEASED SPACE. The Base
Annual Rent for the existing and extended terms for the Incremental Additional
Leased Space shall be Two Hundred Sixty-One Thousand Four Hundred Fourteen and
00/100 Dollars ($261,414.00), payable in equal monthly installments of
Twenty-One Thousand Seven Hundred Eighty-Four and 50/100 Dollars ($21,784.50),
in accordance with the terms of the Lease. On October 1, 1998, and each
subsequent October 1, the Base Annual Rent for the Incremental Additional Leased
Space shall be increased by Two Percent (2%) of the Base Annual Rent for the
Incremental Additional Leased Space in effect during the previous Lease year.
The escalated Base Annual Rent for the Incremental Additional Leased Space so
determined shall be the "Base Annual Rent" for all purposes of respecting the
Incremental Additional Leased Space, including the calculation of the increase
in Base Annual Rent for the Incremental Additional Leased Space for the
subsequent Lease year. The increase in Base Annual Rent shall be calculated
without regard to any waiver of rent or rent credit provided to Tenant. For
purposes of the Incremental Additional Leased Space only, Subsections 1.5(c)
and 2.2(c) of the Lease are deleted entirely; in Subsection 2.3(a) of the Lease,
the last sentence of the paragraph is deleted entirely; in Subsection 2.3(c) of
the Lease, in the third line, insert a period after `Year' and delete the rest
of the sentence; in the seventh and eighth lines, delete `and the actual
increase attributable to the increase in the Consumer Price Index'.
7. ADDITIONAL RENT FOR THE INCREMENTAL ADDITIONAL LEASED SPACE.
Tenant's pro rata share of any increases in Real Estate Taxes and Operating
Expenses for the Incremental Additional Leased Space commencing October 1, 1998,
shall be Four and Seventy-Six Hundredths Percent (4.76%). For purposes of
calculating Additional Rent for the Incremental Additional Leased Space based on
Tenant's pro rata share of increases in Operating Expenses and Real Estate
Taxes, the base year shall be Landlord's fiscal year ending December 31, 1997,
and Tenant's obligation to pay such Additional Rent shall accrue and commence
October 1, 1998.
8. RENT WAIVER FOR THE INCREMENTAL ADDITIONAL LEASED SPACE. Provided
Tenant is not then in default under the Lease, Landlord agrees to waive Nine
Hundred Three and 65/100 Dollars ($903.65) of Base Annual Rent due in each month
of the for the Incremental Additional Leased Space only.
9. LANDLORD'S CONTRIBUTION FOR THE INCREMENTAL ADDITIONAL LEASED
SPACE. Provided Tenant is not then in default of any of the terms or conditions
of the Lease, Landlord agrees to contribute the sum of up to One Hundred
Fifteen Thousand Four Hundred Ten Dollars ($115,410.00) toward the cost of
Tenant's remodeling of the Incremental Additional Leased Space, which amount
Tenant shall receive in the form of a credit toward remodeling expenses owed by
Tenant to Landlord's contractors. Landlord acknowledges that Tenant has an
unused allowance of Thirty-Four Thousand Five Hundred Ninety and 00/100 Dollars
($34,590.00) from Suites 206 and 208, which may also be used for the
Incremental Additional Leased Space.
10. ACCRUAL OF RENT OBLIGATION. Tenant shall be obligated for the
payment of Rent hereunder on October 1, 1997, regardless of any time required to
construct, alter or redecorate any part of the Demised Premises to Tenant's
requirements.
11. PARKING FOR THE INCREMENTAL ADDITIONAL LEASED SPACE. Landlord
agrees to arrange for parking commencing October 1, 1997, in the garage of the
Building for up to twenty-nine (29) automobiles of Tenant or Tenant's employees
at the prevailing monthly rate for such service.
32
THIRD AMENDMENT TO LEASE
AND LEASE EXTENSION AGREEMENT
PAGE THREE
12. RENEWAL OPTION. Provided that Tenant is in compliance with all of
the terms and conditions of the Lease on the date Tenant gives written notice as
provided below and thereafter through the commencement date of the extended
term, and further provided that Tenant gives written notice to Landlord on or
before January 31, 2002, time being of the essence, Tenant shall have the right
to extend the term of this Third Amendment to Lease for a further term of five
(5) years, from October 1, 2002, to September 30, 2007. This provision shall be
contingent on Tenant occupying a substantial portion (51% or more) of the
Demised Premises on the date Tenant gives written notice as provided above and
on the commencement date of the extended term. Such extension shall be under the
terms, covenants and conditions, including the fair market value Base Annual
Rent then in effect for the length of the extended term, and a formula for
Additional Rent which shall be agreed to by the parties. In no event, however,
shall the Base Annual Rent for the extended term be less than the Base Annual
Rent applicable to the last year of the previous Lease Term plus any Additional
Rent applicable to said year pursuant to the provisions of Sections 1.5 and 2.2
of the Lease. If Landlord and Tenant fail to agree on such new terms, covenants
and conditions, including the fair market value Base Annual Rent and a formula
for Additional Rent for the extended term, by March 31, 2002, then Landlord
shall have no further obligation to Tenant with respect to extension of the
Lease Term.
13. EXECUTION OF DOCUMENT. In the event Tenant does not execute and
return this document by the close of business on September 30, 1997, then
Landlord may market the subject space to others without further notice to
Tenant.
14. LEASE. All of the terms and conditions of the Lease, as previously
amended, except Sections 1.5(c), 29 and 32, which are deleted, as amended and
extended by this Third Amendment to Lease and Lease Extension Agreement, shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the day and year hereinbefore first written.
WITNESS: LANDLORD: FIRST ROCK SPRING PARK
LIMITED PARTNERSHIP
/s/ Xxxxxxxxx X. Halston BY [SIG] (SEAL)
----------------------------- ----------------------------
General Partner
ATTEST TENANT: OPTICAL TECHNOLOGY
GROUP, INC.
/s/ F. Xxxxxxx Xxxxx BY /s/ Xxxxxxx Xxx (SEAL)
----------------------------- ----------------------------
Secretary Name:
(Corporate Seal) Title:
33
ADDITIONAL SPACE
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE made this 4th day of January, 1999, by
and between FIRST ROCK SPRING PARK LIMITED PARTNERSHIP, a Maryland limited
partnership (hereinafter "Landlord"), and OPTICAL TECHNOLOGY GROUP, INC., a
Maryland corporation (hereinafter "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant desire to amend further that certain lease
agreement dated January 25, 1996 (the "Lease"), as amended by a First Amendment
to Lease dated April 3, 1997, a Second Amendment to Lease dated April 15, 1997
and a Third Amendment to Lease and Lease Extension Agreement dated October 28,
1997, which provides for the leasing of Suite 800, consisting of approximately
21,405 square feet on the Eighth (8th) floor of One Democracy Plaza, located at
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx, for a term expiring September 30,
2002; and
WHEREAS, Tenant desires to lease an additional area of 1,660 square feet
on the Seventh (7th) floor of said building known as Suite 705, as delineated on
the attached plan.
NOW, THEREFORE, the parties hereto agree as follows:
1. AREA. Landlord hereby leases to Tenant and Tenant leases from
Landlord, Suite 705, containing approximately 1,660 square feet of additional
space on the Seventh (7th) floor (the "Additional Leased Space"), making the
total demised premises 23,065 square feet.
2. TERM. The term of the Additional Leased Space shall commence
December 15, 1998 (the "Effective Date"), and shall expire contemporaneously
with the term of the Lease.
3. BASE RENT. The Base Annual Rent for the Additional Leased Space
shall be Forty-Eight Thousand Nine Hundred Seventy and 08/100 Dollars
($48,970.08), payable in equal monthly installments of Four Thousand Eighty and
84/100 Dollars ($4,080.84), in advance in accordance with the terms of the
Lease. On December 15, 1999 and each subsequent December 15, the Base Annual
Rent for the Additional Leased Space only shall be increased by Two Percent (2%)
of the Base Annual Rent for the Additional Leased Space only in effect during
the previous Lease year. The escalated Base Annual Rent for the Additional
Leased Space only so determined shall be the "Base Annual Rent" for all purposes
of this Fourth Amendment to Lease, including the calculation of the increase in
Base Annual Rent for the Additional Leased Space only for the subsequent Lease
Year. The increase in Base Annual Rent for the Additional Leased Space only
shall be calculated without regard to any waiver of rent or rent credit provided
to Tenant.
4. ADDITIONAL RENT. Commencing on the Effective Date, Tenant's pro
rata share of any increases in Real Estate Taxes and Operating Expenses for the
Additional Leased Space only shall be Eighty--Two Hundredths of One Percent
(0.82%). For purposes of calculating Additional Rent for the Additional Leased
Space only, based on Tenant's pro rata share of increases in Real Estate Taxes
and Operating Expenses, the base year shall be Landlord's fiscal year ending
December 31, 1998, and Tenant's obligation to pay such Additional Rent for the
Additional Leased Space only shall accrue and commence on December 15, 1999.
5. ACCEPTANCE OF SPACE. Tenant shall accept the Additional Leased
Space in its existing "as is" condition and shall be obligated for the payment
of rent hereunder on the Effective Date, regardless of any time required to
construct, alter or redecorate the Additional Leased Space to Tenant's
requirements.
34
FOURTH AMENDMENT TO LEASE
PAGE TWO
6. LANDLORD'S CONTRIBUTION. Landlord agrees to contribute the sum
of up to Eight Thousand Three Hundred and 00/100 Dollars ($8,300.00) towards the
cost of Tenant's remodeling of the Additional Leased Space, which amount Tenant
shall receive in the form of a credit toward such remodeling costs.
7. PARKING. Landlord agrees to arrange for parking in the garage
of the building for up to Five (5) additional automobiles of Tenant or Tenant's
employees at the prevailing monthly rate for such service.
8. SECURITY DEPOSIT. Upon lease execution, Tenant shall deliver to
Landlord the equivalent of two (2) months base rent, with one (1) month to be
applied as the first month's rent, and one (1) to be held as security deposit.
Additional security may be required by Landlord based on the financial terms
hereof and Landlord's review of Tenant's financial information.
9. EXECUTION OF DOCUMENT. In the event Tenant does not execute and
return this document by the close of business on December 14, 1998, then
Landlord may market the subject space to others without further notice to
Tenant.
10. LEASE. All of the terms and conditions of the Lease, as
previously amended and as modified by this Fourth Amendment to Lease, shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the day and year hereinbefore first written.
WITNESS: LANDLORD: FIRST ROCK SPRING PARK
LIMITED PARTNERSHIP
/s/ Xxxxxxxxx X. Halston By: /s/ Xxxxxx X. Xxxxx (SEAL)
-------------------------- ----------------------------------------
General Partner
ATTEST: TENANT: OPTICAL TECHNOLOGY GROUP,
INC.
/S/ XXXXXXXX X. XXXXXX BY /s/ F. XXXXXXX XXXXX (SEAL)
--------------------------- ----------------------------------------
Secretary Name: F. Xxxxxxx Xxxxx
(Corporate Seal) Title: Ex. Vice President
35
[XXXXX LETTERHEAD]
XXXXXXX X. XXXXX COMMERCIAL REALTY
0000 X XXXXXX. X.X. - XXXXXXXXXX. X.X. 00000 - 000-000-0000
May 19, 1999 VIA FAX: 000-000-0000
---------------------
Xx. Xxxx X. Xxxxx
Associate Director
Xxxxxx X. Xxxxxxx, Inc.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000 Xxxx
Xxxxxxxxxx, X.X 00000-0000
Re: One Democracy Plaza
0000 Xxxxxxxxx Xxxxxxxxx
Optical Technology Group (OTG)
Dear Xxxx:
On behalf of Xxxxxxx X. Xxxxx Real Estate Services L.P. and First Rock Spring
Park Limited Partnership ("Landlord"), we are pleased to submit this revised
proposal which outlines the basic terms and conditions upon which we propose to
lease space at Xxx Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx ("Building") to your
client, Optical Technology Group (OTG).
BUILDING: One Democracy Plaza is located at 0000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx. The building contains
201,344 gross rentable square feet located on ten (10)
floors.
LEASED PREMISES: Approximately 1,332 rentable square feet on the seventh
(7th) floor, Suite 709.
LEASE COMMENCEMENT: The "Lease Commencement Date" shall be July 15, 1999,
or sooner if possible. Landlord and Tenant shall
mutually agree upon a schedule in which all necessary
lease documents will be completed so as to permit
Tenant's occupancy by lease commencement date.
LEASE TERM: Three (3) years and two and one-half (2 1/2) months to
coordinate with Tenant's existing lease expiration of
September 30, 2002.
36
Xx. Xxxx X. Xxxxx
May 19, 1999
Page 2
RENT: The Initial Base Rental shall be thirty dollars and
twenty-five cents ($30.25) per rentable square foot,
full service.
TENANT IMPROVEMENTS: Landlord shall contribute a total of four dollars
($4.00) per rentable square foot towards the cost of
Tenant Improvements, and architectural and engineering
fees for the leased Premises.
PARKING: Tenant shall have the right to lease three (3) parking
spaces in the parking garage for One Democracy Plaza at
the prevailing monthly rate, which is currently
fifty-five dollars ($55.00) per space per month.
ACCESS: Tenant shall have access to One Democracy Plaza, 24
hours a day, 7 days a week, 52 weeks a year.
BUILDING OPERATIONS: The building standard hours of operation are as follows:
Monday through Friday, 8:00 a.m. to 6:00 p.m. and
Saturday, 8:00 a.m. to 1:00 p.m.
Should Tenant require HVAC services beyond the standard
operating hours, Landlord shall furnish such additional
services at the then prevailing hourly rates as
established by Landlord from time to time. An advance
notice of 72 hours for HVAC overtime is requested, but
services will be provided within a shorter time frame.
SECURITY FOR THE Upon lease execution, Tenant shall deliver to Landlord
LEASE: the equivalent of two (2) months base rent, one (1)
month to be applied as the first month's rent, and one
(1) month to be held as a security deposit. Additional
security may be required by Landlord in accordance with
the financial terms of the lease and Landlord's review
of Tenant's financial information.
BROKER AGREEMENT: Landlord recognizes Xxxxxx X. Xxxxxxx, Inc. as OTG's
exclusive broker for this transaction and agrees to pay
Xxxxxx X. Xxxxxxx, Inc. a commission pursuant to the
terms and conditions of a separate agreement.
37
Xx. Xxxx X. Xxxxx
May 19, 1999
Page 3
This proposal is submitted subject to prior leasing or withdrawal from the
market without notice. Neither Landlord nor Optical Technology Group shall have
any obligations regarding any provisions of this lease proposal unless a lease
is executed between the parties. This proposal shall expire on June 1, 1999.
It is further subject to Landlord's satisfactory of Tenant's financial
statements, which shall be submitted prior to lease negotiations.
We look forward to working with you and to expanding Optical Technology Group
within One Democracy Plaza.
Sincerely,
XXXXXXX X. XXXXX REAL ESTATE SERVICES, L.P.,
BY: XXXXX COMMERCIAL MANAGEMENT L.L.C.
/s/ XXXXXXX XXXX
Xxxxxxx Xxxx
Associate Vice President
(000) 000-0000
RL/tcb
cc: Xxx Xxxxxxx
Xxxx Xxxxxx
AGREED & ACCEPTED:
OPTICAL TECHNOLOGY GROUP
By: /s/ Xxxxxxx Xxx Title: President
------------------------------ ---------------------------
Date: May 24, 1999
-------------------
38
OTG SOFTWARE
===============================================================================
FACSIMILE TRANSMITTAL SHEET
===============================================================================
TO: FROM:
Xxxx Xxxxx Xxx Xxxxxx
-------------------------------------------------------------------------------
COMPANY: DATE:
OTG Software May 25, 1999
-------------------------------------------------------------------------------
FAX NUMBER: TOTAL NO. OF PAGES INCLUDING COVER:
000-000-0000 4
-------------------------------------------------------------------------------
PHONE NUMBER: SENDER'S REFERENCE NUMBER:
000-000-0000
-------------------------------------------------------------------------------
RE: SENDER'S FAX NUMBER:
000-000-0000
===============================================================================
[] URGENT [] FOR REVIEW [] PLEASE COMMENT [] PLEASE REPLY [] PLEASE RECYCLE
===============================================================================
NOTES/COMMENTS:
Please call sender's number above if you have any problems or questions
regarding this transmission.
[OTG LOGO]
===============================================================================
0000 XXXXXXXXX XXXX.
XXXXXXXX, XXXXXXXX 00000
000-000-0000 OR 000-000-0000
XXX.XXX.XXX
39
[XXXXXXX X. XXXXX COMMERCIAL REALTY LETTERHEAD]
June 21, 1999
Xx. Xxxxxxxx Xxxxxx
Vice President of Operations
Optical Technology Group
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Dear Xxxxxxxx:
Enclosed is a copy of your fully-executed Fifth Amendment to Lease covering One
Democracy Plaza located at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX.
We appreciate your interest in our property, and we look forward to a continued
pleasant relationship. If you have any questions, please contact me.
Sincerely,
/s/ XXXXXXX XXXX
Xxxxxxx Xxxx
Associate Vice President
(000) 000-0000
RL/nc
Enclosure
cc: Xxxx X. Xxxxx, w/full enclosures
File, w/full enclosures
Xxxx Xxxxxx, w/full enclosures
40
ADDITIONAL SPACE
FIFTH AMENDMENT TO LEASE
THIS FIFTH AMENDMENT TO LEASE made this 17th day of June, 1999 by and
between FIRST ROCK SPRING PARK LIMITED PARTNERSHIP, a Maryland limited
partnership (hereinafter "Landlord"), and OPTICAL TECHNOLOGY GROUP, INC., a
Maryland corporation (hereinafter "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant desire to amend further that certain lease
agreement dated January 25, 1996 (the "Lease"), which provides for the leasing
of Suites 800 and 705, consisting of approximately 23,065 square feet on the
Seventh (7th) and Eighth (8th) floors of One Democracy Plaza, located at 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx, for a term expiring September 30, 2002;
and
WHEREAS, Tenant desires to lease an additional area of 1,332 square feet on
the Seventh (7th) floor of said building known as Suite 709, as delineated on
the attached plan.
NOW, THEREFORE, the parties hereto agree as follows:
1. AREA. Landlord hereby leases to Tenant and Tenant leases from
Landlord, Suite 709, containing approximately 1,332 square feet of additional
space on the Seventh (7th) floor (the "Additional Leased Space"), making the
total demised premises 24,397 square feet.
2. TERM. The term of the Additional Leased Space shall commence on
the earlier of July 15, 1999, or when the space becomes available (the
"Effective Date"), and shall expire contemporaneously with the term of the
Lease.
3. BASE RENT. The Base Annual Rent for the Additional Leased Space
shall be Forty Thousand Two Hundred Ninety-Three and 00/100 Dollars
($40,293.00), payable in equal monthly installments of Three Thousand Three
Hundred Fifty-Seven and 75/100 Dollars ($3,357.75), in advance in accordance
with the terms of the Lease. On the first (1st) anniversary of the Effective
Date, and each subsequent anniversary thereof, the Base Annual Rent for the
Additional Leased Space only shall be increased by Two and One-Half Percent
(2 1/2%) of the Base Annual Rent for the Additional Leased Space only in effect
during the previous Lease year. The escalated Base Annual Rent for the
Additional Leased Space only so determined shall be the "Base Annual Rent" for
all purposes of this Fifth Amendment to Lease, including the calculation of the
increase in Base Annual Rent for the Additional Leased Space only for the
subsequent Lease Year. The increase in Base Annual Rent for the Additional
Leased Space only shall be calculated without regard to any waiver of rent or
rent credit provided to Tenant.
4. ADDITIONAL RENT. Commencing on the Effective Date, Tenant's pro
rata share of any increases in Real Estate Taxes and Operating Expenses for the
Additional Leased Space only shall be Sixty-Six Hundredths of One Percent
(.66%). For purposes of calculating Additional Rent for the Additional Leased
Space only, based on Tenant's pro rata share of increases in Real Estate Taxes
and Operating Expenses, the base year shall be Landlord's fiscal year ending
December 31, 1999, and Tenant's obligation to pay such Additional Rent for the
Additional Leased Space only shall accrue and commence on the first (1st)
anniversary of the Effective Date.
5. ACCEPTANCE OF SPACE. Tenant shall accept the Additional Leased
Space in its existing "as is" condition and shall be obligated for the payment
of rent hereunder on the Effective Date, regardless of any time required to
construct, alter or redecorate the Additional Leased Space to Tenant's
requirements.
41
FIFTH AMENDMENT TO LEASE
PAGE TWO
6. PARKING. Landlord agrees to arrange for parking in the garage of
the building for up to three (3) additional automobiles of Tenant or Tenant's
employees at the prevailing monthly rate for such service.
7. LANDLORD'S CONTRIBUTION. Landlord agrees to contribute the total
sum of up to Nine Thousand Two Hundred Six and 20/100 Dollars ($9,206.20) toward
the cost of Tenant's remodeling of the Additional Leased Space, which amount
Tenant shall receive in the form of a credit toward such remodeling costs.
Tenant has directed Landlord to convert the real estate broker's fee of Three
Thousand Eight Hundred Seventy-Eight and 20/100 Dollars ($3,878.20) into
Tenant's improvement allowance, which is included in the aforesaid Nine Thousand
Two Hundred Six and 20/100 Dollars ($9,206.20).
8. SECURITY DEPOSIT. Tenant shall provide Landlord with an
additional security deposit in amount equal to Three Thousand Three Hundred
Fifty-Seven and 75/100 Dollars ($3,357.75).
9. EXECUTION OF DOCUMENT. In the event Tenant does not execute and
return this document by the close of business on June 10, 1999, then Landlord
may market the subject space to others without further notice to Tenant.
10. LEASE. All of the terms and conditions of the Lease, as modified
by this Fifth Amendment to Lease, shall remain in full force and effect;
expressly provided however that, notwithstanding anything to the contrary, any
cancellation option, renewal option, right of first offer or additional space
option, however denominated, that Tenant has, or may be deemed to have, under
the Lease or any amendment thereto shall be null, void and of no further force
or effect as to the premises herein described.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the day and year hereinbefore first written.
WITNESS: LANDLORD: FIRST ROCK SPRING PARK
LIMITED PARTNERSHIP
/s/ Xxxxxxxx X. Halston BY /s/ XXXXXX X. XXXXX (SEAL)
-------------------------------- ----------------------------
General Partner
ATTEST: TENANT: OPTICAL TECHNOLOGY
GROUP, INC.
/s/ XXXXXXXX X. XXXXXX BY /s/ F. XXXXXXX XXXXX (SEAL)
-------------------------------- ----------------------------
Secretary NAME:F. Xxxxxxx Xxxxx
(Corporate Seal) TITLE:Executive Vice President
42
[XXXXXXX X. XXXXX COMMERCIAL REALTY LETTERHEAD]
October 7, 1999 VIA OVERNIGHT MAIL
Xx. Xxxxxxxx Xxxxxx
Vice President of Operations
Optical Technology Group
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Re: Additional Space Amendment
One Democracy Plaza
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx
Dear Xxxxxxxx:
Enclosed is a copy of your fully-executed Additional Space Amendment
covering Suite 704 located at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx.
We appreciate your interest in our property, and we look forward to a continued
pleasant relationship. If you have any questions, please contact me.
Sincerely,
/s/ XXXXXXX XXXX XXXX
Xxxxxxx Xxxx Xxxx
Associate Vice President
(000) 000-0000
RL/slj
Enclosure
43
ADDITIONAL SPACE
SIXTH AMENDMENT TO LEASE
THIS SIXTH AMENDMENT TO LEASE made this 6th day of October, 1999 by
and between FIRST ROCK SPRING PARK LIMITED PARTNERSHIP, a Maryland limited
partnership (hereinafter "Landlord"), and OPTICAL TECHNOLOGY GROUP, INC., a
Maryland corporation (hereinafter "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant desire to amend further that certain
lease agreement dated January 25, 1996 (the "Lease"), which provides for the
leasing of Suites 800, 705 and 709, consisting of approximately 24,397 square
feet on the Eighth (8th) and Seventh (7th) floors of One Democracy Plaza,
located at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx, for a term expiring
September 30, 2002; and
WHEREAS, Tenant desires to lease an additional area of 1,186 square
feet on the Seventh (7th) floor of said building known as Suite 704, as
delineated on the attached plan.
NOW, THEREFORE, the parties hereto agree as follows:
1. AREA. Landlord hereby leases to Tenant and Tenant leases from
Landlord, Suite 704, containing approximately 1,186 square feet of additional
space on the Seventh (7th) floor (the "Additional Leased Space"), making the
total Demised Premises 25,583 square feet.
2. TERM. The term of the Additional Leased Space shall commence
September 24, 1999 (the "Effective Date"), and shall expire contemporaneously
with the term of the Lease.
3. BASE RENT. The Base Annual Rent for the Additional Leased
Space shall be Thirty-Six Thousand Eight Hundred Eighty-Four and 60/100 Dollars
($36,884.60), payable in equal monthly installments of Three Thousand
Seventy-Three and 72/100 Dollars ($3,073.72), in advance in accordance with the
terms of the Lease. On the first (1st) anniversary of the Effective Date, and
each subsequent anniversary thereof, the Base Annual Rent for the Additional
Leased Space only shall be increased by Two and One-Half Percent (2 1/2%) of the
Base Annual Rent for the Additional Leased Space only in effect during the
previous Lease year. The escalated Base Annual Rent for the Additional Leased
Space only so determined shall be the "Base Annual Rent" for all purposes of
this Sixth Amendment to Lease, including the calculation of the increase in Base
Annual Rent for the Additional Leased Space only for the subsequent Lease Year.
The increase in Base Annual Rent for the Additional Leased Space only shall be
calculated without regard to any waiver of rent or rent credit provided to
Tenant.
4. ADDITIONAL RENT. Commencing on the Effective Date, Tenant's
pro rata share of any increases in Real Estate Taxes and Operating Expenses for
the Additional Leased Space only shall be Fifty-Nine Hundredths of One Percent
(.59%). For purposes of calculating Additional Rent for the Additional Leased
Space only, based on Tenant's pro rata share of increases in Real Estate Taxes
and Operating Expenses, the base year shall be Landlord's fiscal year ending
December 31, 1999, and Tenant's obligation to pay such Additional Rent for the
Additional Leased Space only shall accrue and commence on the first (1st)
anniversary of the Effective Date.
5. LANDLORD'S CONTRIBUTION. Landlord agrees to contribute the
total sum of up to Eight Thousand Sixty-Three and 61/100 Dollars ($8,063.61)
toward the cost of Tenant's remodeling of the Additional Leased Space, which
amount Tenant shall receive in the form of a credit toward such remodeling
costs. Tenant has directed Landlord to convert the real estate broker's fee of
Three Thousand Three Hundred Nineteen and 61/100 Dollars ($3,319.61) into
Tenant's improvement allowance, which is included in the aforesaid Eight
Thousand Sixty-Three and 61/100 Dollars ($8,063.61).
44
SIXTH AMENDMENT TO LEASE
PAGE TWO
6. ACCEPTANCE OF SPACE. Tenant shall accept the Additional
Leased Space in its existing "as is" condition and shall be obligated for the
payment of rent hereunder on the Effective Date, regardless of any time required
to construct, alter or redecorate the Additional Leased Space to Tenant's
requirements.
7. PARKING. Landlord agrees to arrange for parking in the garage
of the building for two (2) additional automobiles of Tenant or Tenant's
employees at the prevailing monthly rate for such service.
8. EXECUTION OF DOCUMENT. In the event Tenant does not execute
and return this document by the close of business on September 22, 1999, then
Landlord may market the subject space to others without further notice to
Tenant.
9. SECURITY DEPOSIT. Tenant shall provide Landlord with an
additional security deposit in amount equal to Three Thousand Seventy-Three and
72/100 Dollars ($3,073.72).
10. LEASE. All of the terms and conditions of the Lease, as
modified by this Sixth Amendment to Lease, shall remain in full force and
effect; expressly provided however that, notwithstanding anything to the
contrary, any cancellation option, renewal option, right of first offer or
additional space option, however denominated, that Tenant has, or may be deemed
to have, under the Lease or any amendment thereto shall be null, void and of no
further force or effect as to the premises herein described.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be duly executed as of the day and year hereinbefore first written.
WITNESS: LANDLORD: FIRST ROCK SPRING PARK
LIMITED PARTNERSHIP
/s/ Xxxxxxxxx X. Halston BY: /s/ XXXXXX X XXXXX (SEAL)
------------------------------ --------------------------------
General Partner
ATTEST: TENANT: OPTICAL TECHNOLOGY
GROUP, INC.
/s/ XXXXXXXX X. XXXXXX BY /s/ F. XXXXXXX XXXXX (SEAL)
------------------------------ --------------------------------
Secretary Name: F. Xxxxxxx Xxxxx
(Corporate Seal) Title: Executive Vice President
45
ADDITIONAL SPACE
SEVENTH AMENDMENT TO LEASE
THIS SEVENTH AMENDMENT TO LEASE made this 8th day of December, 1999, by and
between FIRST ROCK SPRING PARK LIMITED PARTNERSHIP, a Maryland limited
partnership (hereinafter "Landlord"), and ONLINE TECHNOLOGIES GROUP, INC., a
Delaware corporation (hereinafter "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant desire to amend further that certain lease
agreement dated January 25, 1996 (the "Lease"), which provides for the leasing
of Suites 800, 704, 705 and 709, consisting of approximately 25,583 square feet
on the Eighth (8th) and Seventh (7th) floors of One Democracy Plaza, located at
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx, for a term expiring September 30,
2002; and
WHEREAS, Tenant desires to lease an additional area of 971 square feet on
the Seventh (7th) floor of said building known as Suite 707, as delineated on
the attached plan.
NOW, THEREFORE, the parties hereto agree as follows:
1. AREA. Landlord hereby leases to Tenant and Tenant leases from
Landlord, Suite 707, containing approximately 971 square feet of additional
space on the Seventh (7th) floor (the "Additional Leased Space"), making the
total Demised Premises 26,554 square feet.
2. TERM. The term of the Additional Leased Space shall commence on the
day after the date the existing occupant of Suite 707 vacates the same and
terminates its lease therefor, which is projected to be on or about February 1,
2000 (the "Effective Date"), and shall expire contemporaneously with the term of
the Lease.
3. BASE RENT. The Base Annual Rent for the Additional Leased Space
shall be Thirty-One Thousand Seventy-Two and 08/100 Dollars ($31,072.08),
payable in equal monthly installments of Two Thousand Five Hundred Eighty-Nine
and 34/100 Dollars ($2,589.34), in advance in accordance with the terms of the
Lease. On the first (1st) anniversary of the Effective Date, and each subsequent
anniversary thereof, the Base Annual Rent for the Additional Leased Space only
shall be increased by Two and One-Half Percent (2 1/2%) of the Base Annual Rent
for the Additional Leased Space only in effect during the previous Lease year.
The escalated Base Annual Rent for the Additional Leased Space only so
determined shall be the "Base Annual Rent" for all purposes of this Seventh
Amendment to Lease, including the calculation of the increase in Base Annual
Rent for the Additional Leased Space only for the subsequent Lease Year. The
increase in Base Annual Rent for the Additional Leased Space only shall be
calculated without regard to any waiver of rent or rent credit provided to
Tenant.
4. ADDITIONAL RENT. Commencing on the Effective Date, Tenant's pro
rata share of any increases in Real Estate Taxes and Operating Expenses for the
Additional Leased Space only shall be Thirty-Seven Hundredths of One Percent
(.37%). For purposes of calculating Additional Rent for the Additional Leased
Space only, based on Tenant's pro rata share of increases in Real Estate Taxes
and Operating Expenses, the base year shall be Landlord's fiscal year ending
December 31, 2000, and Tenant's obligation to pay such Additional Rent for the
Additional Leased Space only shall accrue and commence on the first (1st)
anniversary of the Effective Date.
5. LANDLORD'S CONTRIBUTION. Landlord agrees to contribute the total
sum of up to Seven Thousand Six Hundred Sixty-One and 19/100 Dollars ($7,661.19)
toward the cost of Tenant's remodeling of the Additional Leased Space, which
amount Tenant shall receive in the form of a credit toward such remodeling
costs. Tenant has directed Landlord to convert the real estate broker's fee of
Two Thousand Four Hundred Eighty-Five and 76/100 Dollars ($2,485.76) into
Tenant's improvement allowance, which is included in the aforesaid Seven
Thousand Six Hundred Sixty-One and 19/100 Dollars ($7,661.19).
46
SEVENTH AMENDMENT TO LEASE
PAGE TWO
6. PARKING. Landlord agrees to arrange for parking in the garage of
the building for two (2) additional automobiles of Tenant or Tenant's employees
at the prevailing monthly rate for such service.
7. SECURITY DEPOSIT. Tenant shall provide Landlord with an additional
security deposit in amount equal to Two Thousand Five Hundred Eighty-Nine and
33/100 Dollars ($2,589.33).
8. EXECUTION OF DOCUMENT. In the event Tenant does not execute and
return this document by the close of business on November 16, 1999, then
Landlord may market the subject space to others without further notice to
Tenant.
9. LEASE. All of the terms and conditions of the Lease, as modified by
this Seventh Amendment to Lease, shall remain in full force and effect;
expressly provided however that, notwithstanding anything to the contrary, any
cancellation option, renewal option, right of first offer or additional space
option, however denominated, that Tenant has, or may be deemed to have, under
the Lease or any amendment thereto shall be null, void and of no further force
or effect as to the premises herein described.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the day and year hereinbefore first written.
WITNESS: LANDLORD: FIRST ROCK SPRING PARK
LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxx (SEAL)
----------------------- --------------------------------
GENERAL PARTNER
ATTEST: TENANT: ONLINE TECHNOLOGIES
GROUP, INC.
/s/ Xxxxxxxx X. Xxxxxx By /s/ F. Xxxxxxx Xxxxx (SEAL)
----------------------- --------------------------------
Secretary Name:
(Corporate Seal) Title:
47
================================================================================
OFFICE BUILDING LEASE
FOR
INFORMATION SCIENCES GROUP
ONE DEMOCRACY PLAZA
Suites 706 and 706-A
Xxxxxxxx, Xxxxxxxx 00000
XXXXXXX X. XXXXX REAL ESTATE SERVICES L.P.
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
[XXXXX LOGO]
Xxxxxxx X. Xxxxx Companies
================================================================================
48
TABLE OF CONTENTS
SPECIFIC AND GENERAL PROVISIONS
PAGE
1. SPECIFIC PROVISIONS.............................................................. 1
2. RENT............................................................................. 4
2.1 Base Annual Rent
(a) Payment of Base Annual Rent.......................................... 4
(b) Escalation of Base Annual Rent....................................... 4
2.2 Additional Rent.......................................................... 4
(a) Real Estate Taxes.................................................... 4
(b) Operating Expenses................................................... 5
2.3 Additional Rent Estimates and Adjustments................................ 5
(a) Initial Additional Rent Adjustments.................................. 5
(b) Annual Budget........................................................ 5
(c) Additional Rent Reconciliations...................................... 5
(d) Verification of Additional Rent...................................... 6
(e) Fiscal Year.......................................................... 6
2.4 Rent Adjustment Limit.................................................... 6
2.5 Survival of Rent Obligation.............................................. 6
2.6 Pro Rata Share........................................................... 6
2.7 Prorated Rent............................................................ 6
2.8 Application of Rent...................................................... 6
2.9 Late Payment Fee and Interest Charge..................................... 6
2.10 Other Tenant Costs and Expenses.......................................... 6
3. CONSTRUCTION OF PREMISES AND OCCUPANCY........................................... 6
3.1 Tenant Plans, Construction and Rent Liability............................ 6
(a) Preparation of Tenant Plans.......................................... 6
(b) Extension of Construction Timetable.................................. 7
(c) Substantial Completion............................................... 7
3.2 Possession............................................................... 7
3.3 Permits.................................................................. 7
3.4 Demised Premises......................................................... 7
4. SUBLETTING AND ASSIGNMENT........................................................ 8
4.1 Consent.................................................................. 8
4.2 Recapture of Premises.................................................... 8
4.3 Excess Rent and Other Consideration...................................... 8
4.4 Tenant Liability......................................................... 8
4.5 Reasonable Standards of Consent.......................................... 8
4.6 Other Transfers.......................................................... 9
4.7 Rights on Default........................................................ 9
5. SERVICES AND UTILITIES........................................................... 9
5.1 Building Standard Services and Utilities................................. 9
5.2 Overtime Services........................................................ 9
5.3 Excessive Usage.......................................................... 9
(a) Equipment Restrictions............................................... 9
(b) Excess Electrical Usage...............................................10
(c) Additional Utility Costs..............................................10
5.4 Excessive Heat Generation.................................................10
5.5 Building Security.........................................................10
5.6 Roof and Auxiliary Spaces.................................................10
5.7 Trash Removal.............................................................10
6. USE AND UPKEEP OF PREMISES........................................................10
6.1 Use.......................................................................10
6.2 Illegal and Prohibited Uses...............................................10
6.3 Insurance Rating..........................................................10
6.4 Alterations...............................................................11
(a) Approval Required.....................................................11
(b) Alteration Requirements...............................................11
(c) Removal of Leasehold Improvements and Tenant's Property...............11
(d) Compliance with Laws..................................................11
6.5 Maintenance by Landlord...................................................12
(a) Landlord Repairs and Maintenance......................................12
(b) Use of Demised Premises by Landlord...................................12
6.6 Signs and Publications....................................................12
6.7 Excessive Floor Load......................................................12
6.8 Moving and Deliveries.....................................................12
(a) Prohibitions/Notices..................................................12
(b) Coordination with Landlord............................................12
(c) Moving Damages........................................................12
(i)
49
TABLE OF CONTENTS
(continued)
6.9 Rules and Regulations.....................................................13
6.10 Tenant Maintenance and Condition of Demised Premises Upon Surrender.......13
6.11 Tenant Property and Leasehold Improvements................................13
6.12 Landlord's Right to Perform Tenant's Duties...............................13
6.13 Medical Waste.............................................................13
7. ACCESS ..........................................................................13
7.1 Landlord's Access.........................................................13
7.2 Restricted Access.........................................................13
7.3 Tenant's Access...........................................................13
8. LIABILITY.........................................................................14
8.1 Tenant's Property.........................................................14
8.2 Criminal Acts of Third Parties............................................14
8.3 Public Liability..........................................................14
8.4 Construction on Contiguous Property.......................................14
8.5 Tenant Insurance..........................................................14
(a) Liability Insurance...................................................14
(b) Fire and Casualty Insurance...........................................14
(c) Increases in Coverage.................................................14
(d) Policy Requirements...................................................14
(e) No Limitation of Liability............................................14
(f) Waiver of Subrogation.................................................15
(g) Business Interruption.................................................15
8.6 Incident Reports..........................................................15
9. DAMAGE ..........................................................................15
9.1 Damages Caused by Tenant..................................................15
9.2 Fire or Casualty Damage...................................................15
9.3 Untenantability...........................................................15
(a) Restoration Requirements..............................................15
(b) Casualty Near Expiration of Lease Term................................16
10. CONDEMNATION......................................................................16
10.1 Landlord's Right to Award.................................................16
10.2 Tenant's Right to File Claim..............................................16
11. BANKRUPTCY........................................................................16
11.1 Events of Bankruptcy......................................................16
11.2 Landlord's Remedies.......................................................16
(a) Termination of Lease..................................................16
(b) Suit for Possession...................................................17
(c) Non-Exclusive Remedies................................................17
(d) Assumption or Assignment by Trustee...................................17
(e) Adequate Assurance of Future Performance..............................17
(f) Failure to Provide Adequate Assurance.................................17
11.3 Guarantors................................................................17
11.4 Damages...................................................................17
12. DEFAULTS AND REMEDIES.............................................................17
12.1 Default...................................................................17
12.2 Remedies..................................................................17
12.3 Landlord's Right to Relet.................................................18
12.4 Recovery of Damages.......................................................18
(a) Quantification of Damages.............................................18
(b) Non-Exclusive Rights..................................................19
12.5 Waiver....................................................................19
12.6 Anticipatory Repudiation..................................................19
(a) Repudiation Prior to Commencement Date................................19
(b) Repudiation of Any Obligation of Tenant During Lease Term.............19
12.7 Tenant Abandonment of Demised Premises....................................19
(a) Abandonment...........................................................19
(b) Landlord Right to Enter and to Relet..................................19
12.8 Tenant's Property.........................................................19
12.9 Landlord's Lien...........................................................20
(a) Right of Distress/Landlord's Lien.....................................20
(b) UCC Security Interest.................................................20
(c) UCC Remedies Not Mandatory............................................20
12.10 Injunctive Relief.....................................................20
12.11 Independent Covenants.................................................20
(ii)
50
TABLE OF CONTENTS
(continued)
12.12 Waiver of Redemption..................................................20
12.13 Attorneys' Fees.......................................................20
13. SUBORDINATION.....................................................................21
13.1 Subordination.............................................................21
13.2 Estoppel Certificates.....................................................21
13.3 Attornment................................................................21
13.4 Mortgagee Rights..........................................................21
(a) Mortgagee Requirements................................................21
(b) Notices to Mortgagee..................................................22
14. TENANT'S HOLDOVER.................................................................22
14.1 With Landlord Consent.....................................................22
14.2 Without Landlord Consent..................................................22
15. SECURITY DEPOSIT..................................................................22
16. QUIET ENJOYMENT...................................................................23
17. SUCCESSORS........................................................................23
18. WAIVER OF JURY TRIAL AND STATUTE OF LIMITATIONS...................................23
19. LIMITATION OF LANDLORD'S LIABILITY; NOTICE........................................23
19.1 Landlord's Consent........................................................23
19.2 Individual Liability......................................................23
19.3 Notice in Event of Landlord's Default.....................................23
20. AUTHORITY.........................................................................23
21. TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES............................23
21.1 Hazardous Substances......................................................23
21.2 Tenant's Restrictions.....................................................24
(a) Violations............................................................24
(b) Use...................................................................24
21.3 Affirmative Obligations...................................................24
(a) Compliance with Laws..................................................24
(b) Clean-Up Plans........................................................24
(c) Information Requests..................................................24
21.4 Tenant's Indemnity........................................................24
21.5 Survival of Obligations...................................................24
22. JOINT AND SEVERAL LIABILITY.......................................................24
23. DEFINITIONS.......................................................................25
23.1 Pronouns..................................................................25
23.2 Demised Premises..........................................................25
23.3 Lease Term................................................................25
23.4 Tenant's Property.........................................................25
23.5 Leasehold Improvements....................................................25
24. NOTICE TO PARTIES.................................................................25
24.1 Addresses for Notices.....................................................25
24.2 Effective Date of Notice..................................................25
25. NOTICE TO MORTGAGEES..............................................................25
26. SPECIAL PROVISIONS; EXHIBITS......................................................25
26.1 Incorporation in Lease....................................................25
26.2 Conflicts.................................................................25
27. CAPTIONS..........................................................................25
28. ENTIRE AGREEMENT; MODIFICATION....................................................25
29. GOVERNING LAW; SEVERABILITY.......................................................26
30. BINDING EFFECT OF LEASE...........................................................26
31. FORCE MAJEURE.....................................................................26
32. RECORDATION.......................................................................26
33. TIME OF ESSENCE...................................................................26
34. BROKERS ..........................................................................26
35. RELATIONSHIP OF LANDLORD AND TENANT...............................................26
(iii)
51
This Lease, made this 23rd day of June, 1998 between FIRST ROCK
SPRING PARK LIMITED PARTNERSHIP, a Maryland limited partnership (hereinafter
referred to as "Landlord"), and INFORMATION SCIENCES GROUP, a Maryland
corporation (hereinafter referred to as "Tenant").
Landlord, for and in consideration of the covenants and agreements set
forth hereinafter, leases to Tenant, and Tenant leases from Landlord, the
premises described, for the use set forth and for the term and at the rent
reserved herein.
1. SPECIFIC PROVISIONS
1.1 PREMISES
(a) DEMISED PREMISES: Suites 706 and 706-A.
(b) RENTABLE AREA: Approximately 2,710 square feet (Modified
Washington D.C. Association of Realtors
standard floor area measure as defined in
Exhibit G).
(c) COMPLEX: The buildings, improvements and grounds known
as Democracy Plaza, of which the Building is
a part.
(d) BUILDING: ONE DEMOCRACY PLAZA
(e) ADDRESS: 0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
1.2 LEASE DATES
(a) LEASE TERM: The term of this Lease ("Lease Term") shall
be Five (5) years, commencing on June 1, 1998
("Commencement Date"), and expiring on May
31, 2003, both dates inclusive, unless sooner
terminated in accordance with the provisions
of this Lease.
(b) BASE YEAR: Base Year shall be defined as the period
commencing on January 1, 1998, and ending on
December 31, 1998.
(c) FISCAL YEAR: Fiscal Year shall be defined as each annual
period, or portion thereof, included within
the Lease Term commencing on January 1, and
ending on December 31.
(d) LEASE YEAR: The first Lease Year shall commence on the
Commencement Date and shall terminate at
11:59 p.m. on the day before the first
anniversary of the Commencement Date. All
subsequent Lease Years shall be for twelve
calendar months, except that the last Lease
Year shall terminate on the date this Lease
expires or is terminated in accordance with
the provisions hereof.
(e) CALENDAR
YEAR: Calendar Year (sometimes appearing as
`calendar year') shall be defined as each
annual period from January 1 through the
immediately following December 31.
1.3 BASE ANNUAL RENT
(a) INITIAL BASE ANNUAL RENT: Seventy-Three Thousand One Hundred
Seventy and 00/100 Dollars ($73,170.00), payable in equal monthly
installments of Six Thousand Ninety-Seven and 50/100 Dollars
($6,097.50), hereinafter referred to as "base monthly rent", for the
first Lease Year.
(b) PERCENTAGE FACTOR: Three Percent (3%).
1
52
1.4 BASE YEAR COSTS
Not Applicable.
1.5 ADDITIONAL RENT
Additional Rent shall be payable by Tenant in accordance with
Section 2, commencing June 1, 1999, consisting of each of the
following:
(a) INCREASES IN REAL
ESTATE TAXES: Tenant's pro rata share (based on 223,967
square feet of office space in the
Building), equal to One and Twenty-One
Hundredths Percent (1.21%), of the amount of
Real Estate Taxes in excess of the Base Year
Real Estate Taxes.
(b) INCREASES IN
OPERATING
EXPENSES: Tenant's pro rata share (based on 223,967
square feet of office space in the
Building), equal to One and Twenty-One
Hundredths Percent (1.21 %), of the amount
of Operating Expenses in excess of the Base
Year Operating Expenses.
1.6 SECURITY DEPOSIT
Two Thousand Eight Hundred Thirty-Two and 63/100 Dollars
($2,832.63), to be transferred from Tenant's present security
deposit account.
1.7 STANDARD BUILDING OPERATING DAYS AND HOURS
8:00 A.M. to 6:00 P.M. Monday - Friday
8:00 A.M. to 1:00 P.M. Saturday
1.8 USE OF PREMISES
General office use in keeping with the quality and nature of this
first class office building.
1.9 (a) ADDRESS FOR NOTICES TO TENANT
Information Sciences Group
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
(b) ADDRESS FOR NOTICES TO LANDLORD
First Rock Spring Park Limited Partnership
c/o Xxxxxxx X. Xxxxx Real Estate Services L.P.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(c) ADDRESS FOR PAYMENT OF RENT
First Rock Spring Park Limited Partnership
c/o Xxxxxxx X. Xxxxx Real Estate Services L.P.
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000-0000
2
53
1.10 SPECIAL PROVISIONS
Rent Section 36
Landlord's Contribution Section 37
Accrual of Rent Obligation Section 38
Parking Section 39
Construction of Premises and Occupancy Section 40
Subletting and Assignment Section 41
Services and Utilities Section 42
Use and Upkeep of Premises Section 43
Access Section 44
Liability Section 45
Damage Section 46
Defaults and Remedies Section 47
Subordination Section 48
Tenant's Holdover Section 49
Tenant's Responsibility Regarding Hazardous Substances Section 50
Brokers and Commissions Section 51
Legal Compliance Section 52
Execution of Document Section 53
1.11 EXHIBITS TO LEASE
Exhibit A- Not Applicable
Exhibit B- Not Applicable
Exhibit C- Building Rules and Regulations
Exhibit D- Cleaning Specifications
Exhibit E- Not Applicable
Exhibit F- Not Applicable
Exhibit G- Rentable Area Definition
IN WITNESS WHEREOF, Landlord has caused this Lease, composed of Specific
Provisions, General Provisions, Special Provisions and Exhibits, to be signed
and sealed by one or more of its Officers, General Partners, Trustees, or
Agents, and Tenant has caused this Lease, as described above, to be signed in
its corporate name by its duly authorized officer and its corporate seal to be
hereto affixed and duly attested by its Secretary.
WITNESS: LANDLORD: FIRST ROCK SPRING PARK LIMITED
PARTNERSHIP
/s/ Xxxxxxxx X. Halston BY:
----------------------- -------------------------------------(SEAL)
General Partner
ATTEST: TENANT: INFORMATION SCIENCES GROUP
CORPORATE /s/ Xxxx X. Xxxxxx BY /s/ Xxxxxxx Xxxxxx, President
--------------------- ------------------------------------(SEAL)
SEAL Secretary Name:
Title:
3
54
GENERAL PROVISIONS
2. RENT
2.1 BASE ANNUAL RENT
(a) Payment of Base Annual Rent. Tenant shall pay the first monthly
installment of Base Annual Rent specified in Section 1.3 upon execution of this
Lease. After the Commencement Date, Tenant shall pay the remaining monthly
installments of Base Annual Rent in advance without deduction, demand, right of
set-off or recoupment, in immediately available funds, on the first day of each
and every calendar month throughout the entire Lease Term specified in Section
1.2(a), to Xxxxxxx X. Xxxxx Real Estate Services L.P. ("Landlord's Agent"), by
electronic funds transfer if requested by Landlord, or otherwise at the address
specified in Section 1.9(b) or 1.9(c), as applicable, or to such other person or
at such other place as Landlord may hereafter designate in writing.
(b) Escalation of Base Annual Rent. Commencing on the first anniversary
date of the Commencement Date and continuing on each subsequent anniversary
thereof, the Base Annual Rent shall be increased by the Percentage Factor
stipulated in Section 1.3(b) times the Base Annual Rent payable for the
preceding Lease Year (all of which shall be calculated without giving effect to
any waiver of rent or rent credit otherwise provided to Tenant). The escalated
Base Annual Rent so determined shall be the "Base Annual Rent" for all purposes
of this Lease, including the calculation of the increase in Base Annual Rent for
the subsequent Lease Year.
2.2 ADDITIONAL RENT. Commencing on the date set forth in Section 1.5 and
continuing throughout the Lease Term, Tenant shall pay as Additional Rent
Tenant's pro rata share of any (i) Real Estate Taxes and (ii) Operating
Expenses, in excess of the (i) Real Estate Taxes and (ii) Operating Expenses,
respectively, paid by Landlord in the Base Year. Additional Rent shall be
determined as follows:
(a) Real Estate Taxes. Tenant shall pay Tenant's pro rata share, as
defined in Section 1.5(a), of any Real Estate Taxes paid during each Fiscal Year
falling entirely or partly within the Lease Term, in excess of the amount of
Real Estate Taxes paid during the Base Year.
(i) The term "Real Estate Taxes" shall mean (1) all taxes,
assessments (including all assessments for public improvements or benefits,
whether or not commenced or completed prior to the date hereof and whether or
not to be completed within the Lease Term), water, sewer, transportation or
other excises, levies, license fees, permit fees, impact fees, inspection fees,
and other authorization fees and other similar charges, in each case whether
general or special, levied or assessed, ordinary or extraordinary, foreseen or
unforeseen, of every character (including all interest and penalties thereon),
which at any time during or in respect of the Lease Term, may, by any
governmental or taxing authority, be assessed, levied, confirmed, or imposed on
or in respect of, or be a lien upon, the land and the building improvements of
which the Demised Premises are a part, and on any land and/or improvements now
or hereafter owned by Landlord and/or others that provide the Complex or
locality or the Demised Premises with other services, programs, amenities or
common facilities, together with (2) any other tax imposed on real estate or on
owners of real estate generally, including taxes imposed on leasehold
improvements which are assessed against the Landlord and taxes upon or with
respect to any activity conducted on the land and improvements of which the
Demised Premises are a part, upon this Lease or any rent reserved or payable
hereunder, upon the revenues or receipts from the land and improvements of which
the Demised Premises are a part, or upon the use or occupancy thereof, and (3)
to the extent the following taxes are in lieu of or a substitute for any other
taxes which are, or would be, payable by Landlord as Real Estate Taxes, (a) any
income, excess profits, or other taxes of Landlord determined on the basis of
its income, receipts, or revenues, (b) any estate, inheritance, succession,
gift, capital levy, or similar tax of Landlord, (c) any franchise, capital
stock, or similar taxes of Landlord and (d) any income, excess profits, or other
taxes of Landlord determined on the basis of its income or revenue derived
pursuant to this Lease.
(ii) If Real Estate Taxes paid during the Base Year are subsequently
reduced by any application or proceeding brought by or on behalf of Landlord for
reduction in the amount of Real Estate Taxes payable by Landlord, the Real
Estate Taxes deemed to have been paid during the Base Year shall be decreased
and Landlord may promptly xxxx Tenant for the Additional Rent not previously
paid by Tenant for any Fiscal Year during the Lease Term, based upon the reduced
amount of Real Estate Taxes deemed paid during the Base Year.
(iii) If the Building's occupancy level is seventy percent (70%) or
less for six (6) months or more during any Fiscal Year other than the Base Year,
or if all land and improvements upon which Real Estate Taxes are or may be
assessed pursuant to Section 2.2(a)(i) above are not fully assessed during any
portion of any Fiscal Year other than any portion of the Base Year, then the
Real Estate Taxes paid during such Fiscal Year or portion thereof (other than
the Base Year) may be adjusted, at Landlord's sole option, to project the Real
Estate Taxes as if the Building were one hundred percent (100%) occupied and/or
all land and improvements are fully assessed during such Fiscal Year as
reasonably estimated by Landlord using standard accounting procedures so that
Tenant's share of the Real Estate Taxes is the amount which Tenant would bear if
the Building were fully occupied and/or if all land and improvements upon which
Real Estate Taxes may be assessed were fully assessed during the entire such
Fiscal Year. For example, if the occupancy rate for the Building during at least
six (6) months of a Fiscal Year is seventy percent (70%), and if the real estate
tax xxxx to Landlord is $240,000 based on the less-than-complete occupancy of
the Building, and if Landlord estimates that the Real Estate Taxes that would
have been paid if the Building had been one hundred percent (100%) occupied by
tenants would have been Three Hundred Thousand Dollars ($300,000), then Tenant
would pay as Additional Rent pursuant to Section 1.5(a) its pro rata share of
the amount by which $300,000 exceeds the Real Estate Taxes which were paid
during the Base Year.
(iv) In addition to the pro rata share of any increase in Real Estate
Taxes to be paid by Tenant pursuant to Sections 2.2(a)(i), (ii) and (iii) above,
Tenant shall reimburse Landlord upon demand for any and all taxes required to be
paid by Landlord upon, measured by, or reasonably attributable to the cost or
value of Tenant's Property or by the cost or value of any Leasehold Improvements
made in or to the Demised Premises by or for Tenant, regardless of whether title
to such Leasehold Improvements shall be in Tenant or Landlord, and for all taxes
required to be paid by Landlord upon, measured by, or reasonably attributable to
or with respect to the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Demised Premises or any
portion thereof to the extent such taxes are not included in Real Estate Taxes.
4
55
(b) Operating Expenses. Tenant shall pay Tenant's pro rata share, as
indicated in Section 1.5(b), of any Operating Expenses paid during each Fiscal
Year falling entirely or partly within the Lease Term, in excess of the
Operating Expenses paid during the Base Year.
(i) The term "Operating Expenses" shall mean any and all expenses of
Landlord in connection with the servicing, insuring, operation, maintenance,
replacement and repair of the Building and related interior and exterior
appurtenances of which the Demised Premises are a part, or for health, welfare
or safety; expenses, if any, of Landlord either alone or in conjunction with
others to maintain common facilities, amenities, programs and services required
or approved by jurisdictional authorities for the Building, the building site,
the Complex or the locality in which the Complex is situated; the cost of any
services to achieve a reduction of, or to minimize the increase in, Operating
Expenses or Real Estate Taxes; management fees; vault rentals; business license,
personal property and other taxes; capital expenditures and other costs of
Landlord for equipment or systems installed to reduce or minimize increases in
Operating Expenses or to comply with any governmental or quasi-governmental
ordinance or requirement (at the option of Landlord, such costs, with interest,
may be recovered from Tenant in installments simultaneous with the payment of
monthly installments of Base Annual Rent in accordance with a cost repayment
schedule based on the useful life of such equipment or systems). At the sole
discretion of Landlord, certain of these expenses may be equitably apportioned
among two or more buildings in the Complex.
(ii) The term "Operating Expenses" shall not include any of the
following, except to the extent that such costs and expenses are specifically
included in Operating Expenses as described in Section 2.2(b)(i) above: capital
expenditures and depreciation of the Building; painting and decorating of tenant
space; interest and amortization of mortgages; ground rent; compensation paid to
officers or executives of Landlord; taxes as measured by the net income of
Landlord from the operation of the Building; insurance reimbursements of
Operating Expenses to Landlord; Real Estate Taxes; brokerage commissions; and
marketing expenses.
(iii) If the Building's occupancy level is seventy percent (70%) or
less for six (6) months or more during any Fiscal Year other than the Base Year,
or if all land and improvements upon which Operating Expenses are calculated or
may be calculated pursuant to Section 2.2(b)(i) above were not fully complete
and operational, or if any tenant is separately paying for services or utilities
furnished to its premises or is provided with fewer services than customarily
provided for tenants of general office space in the Building, then Operating
Expenses paid during such Fiscal Year or portion thereof (other than the Base
Year) may be adjusted, at Landlord's sole option, to include all additional
expenses, as estimated by Landlord applying standard accounting procedures, so
that Tenant's share of Operating Expenses is the amount which Tenant would bear
if the Building were fully occupied by tenants and all land and improvements
upon which Operating Expenses are calculated or may be calculated pursuant to
Section 2.2(b)(i) above were fully complete and operational during the entire
such Fiscal Year using services and utilities customarily provided for general
office use. For example, if the occupancy rate for the Building during at least
six (6) months of a Fiscal Year is seventy percent (70%), and if the janitorial
contractor charges $1.00 per square foot of occupied rentable area per year, and
if the Building contains 100,000 square feet of rentable area, and if Landlord
estimates that the Operating Expenses that would have been paid if the Building
had been one hundred percent (100%) occupied by tenants, using such customary
janitorial services during such year, would have been $100,000, then Tenant
would pay as Additional Rent pursuant to Section 1.5(b) its pro rata share of
the amount by which $100,000 exceeds the Operating Expenses which were paid
during the Base Year.
2.3 ADDITIONAL RENT ESTIMATES AND ADJUSTMENTS.
(a) Initial Additional Rent Adjustments. Landlord at its option may submit
to Tenant prior to the date set forth in Section 1.5 a statement of Landlord's
reasonable estimate of the increases described in Sections 2.2(a) and (b)
above, together with the amount of Tenant's Additional Rent which is estimated
to result from such increases, in which event Tenant shall pay such estimated
Additional Rent to Landlord in equal monthly installments beginning on the date
set forth in Section 1.5, on the dates and in the manner required for the
payment of Tenant's monthly installments of Base Annual Rent. In the
alternative, as soon as practicable after the end of the calendar year in which
Tenant's obligation to pay Additional Rent pursuant to Sections 2.2(a) and (b)
commences, Landlord may submit a lump sum statement to Tenant of the actual
increases in Real Estate Taxes and/or Operating Expenses, if any, which were
paid during the Fiscal Year which ended during such calendar year over the Real
Estate Taxes and Operating Expenses which were paid during the Base Year, all
as prorated based upon that portion of the Fiscal Year falling within the
initial partial year of the Lease Term, and Tenant shall pay its pro rata share
as Additional Rent on the date and in the manner required for the next monthly
installment of Base Annual Rent due after submission of Landlord's statement.
(b) Annual Budget. Subsequent to the Calendar Year in which Tenant's
obligation to pay each component of Additional Rent pursuant to Section 2.2
commences, Tenant shall thereafter pay each such component of Additional Rent in
twelve equal monthly installments based upon Landlord's estimates. In order to
provide for the current monthly payment of each component of Additional Rent
described herein, Landlord shall submit to Tenant a statement of Landlord's
reasonable estimate of the increases described in Section 2.2 above, together
with the amount of Tenant's Additional Rent which is estimated to result from
such increases. Tenant agrees to pay each such estimated component of Additional
Rent to Landlord in twelve equal installments beginning on January 1, on the
dates and in the manner required for the payment of Tenant's monthly
installments of Base Annual Rent.
(c) Additional Rent Reconciliations. After the end of each Calendar Year,
Landlord will submit to Tenant an audited financial statement of the actual
increases in Real Estate Taxes and Operating Expenses paid during the Fiscal
Year which ended during such Calendar Year over the Real Estate Taxes and
Operating Expenses which were paid during the Base Year, respectively. Such
statement shall also indicate the amount of Tenant's excess payment or
underpayment of Additional Rent based on Landlord's estimate described in
Sections 2.3(a) and 2.3(b). If Additional Rent paid by Tenant during the
preceding Calendar Year shall be in excess of, or less than, the aggregate of
its share of the actual increase in Real Estate Taxes and Operating Expenses,
Landlord and Tenant agree to make the appropriate adjustment following the
submission of Landlord's statement. Tenant shall either pay any Additional Rent
due with the installment of Base Annual Rent due for the month following
submission of Landlord's statement, or pay any Additional Rent due within thirty
(30) days if the Lease Term has expired or has otherwise been terminated. Tenant
shall deduct its excess payment, if any, from the installment of Base Annual
Rent due for the month following submission of Landlord's statement, or
following the expiration or earlier termination of the Lease Term, Tenant shall
be reimbursed for any excess payments made, less any amounts then due Landlord
under this Lease, upon demand.
5
56
(d) Verification of Additional Rent. Unless Tenant asserts
specific errors within thirty (30) days after Landlord has submitted the audited
financial statement for a Fiscal Year to Tenant, Tenant shall have no right to
contest the amount of Tenant's pro rata share of Real Estate Taxes and/or
Operating Expenses or the statement submitted by Landlord. No such assertion of
error by Tenant shall extend the time for payments as set forth in Sections 2.2
and 2.3 above. If Tenant has given a timely assertion of error and if it shall
be determined by Landlord there is an error in Landlord's statement, Tenant
shall be entitled to a credit for any overpayment, which shall be applied to any
sums then due Landlord under this Lease and then to the next installment(s) of
Additional Rent until fully credited for the overpayment, or refunded if Tenant
has vacated the Demised Premises, or Tenant shall be billed for any underpayment
and shall remit any amount owing to Landlord within ten (10) business days of
Tenant's receipt of such statement.
(e) Fiscal Year. Landlord shall have the right to change its
Fiscal Year from time to time. If Landlord changes its Fiscal Year during the
Lease Term, thereby creating a Fiscal Year with fewer than twelve (12) months
(hereinafter "short year"), the Real Estate Taxes and Operating Expenses for the
short year shall be determined on an annualized basis by taking the monthly
average of the actual Real Estate Taxes and Operating Expenses, respectively,
and multiplying each by twelve. The amounts determined by this method shall be
used in determining the increases described in Sections 2.2(a) and 2.2(b) for
the short year.
2.4 RENT ADJUSTMENT LIMIT. Notwithstanding any deductions from or
adjustments to Base Annual Rent and Additional Rent as provided for above, in no
event shall the total monthly installment of Base Annual Rent and Additional
Rent to be paid by Tenant in any month during the Lease Term or any extension
thereof be less than the monthly installment of Base Annual Rent stipulated in
Section 1.3, except as required as the result of the Landlord's application of a
credit due to Tenant pursuant to Section 2.3(c).
2.5 SURVIVAL OF RENT OBLIGATION. The obligation of Tenant with respect
to payment of Base Annual Rent, as defined in Section 2.1, and Additional Rent
as defined in Sections 2.2 and 2.10, together with all other sums due hereunder,
accrued and unpaid during the Lease Term, shall survive the expiration or
earlier termination of this Lease.
2.6 PRO RATA SHARE. Tenant's "pro rata share" stipulated in Sections
1.5(a) and 1.5(b) represent the ratio that the total rentable area of the
Demised Premises bears to the total rentable area of the Building. In the event
of any dispute as to the Tenant's "pro rata share", certification of the "pro
rata share" by Landlord's architect shall be binding on both Landlord and
Tenant.
2.7 PRORATED RENT. Any Base Annual Rent or Additional Rent payable
pursuant to Sections 2.1 and 2.2 for one or more full calendar months in a
partial Fiscal Year at the beginning or end of the Lease Term shall be prorated
based upon the number of months in the Fiscal Year. Any Base Annual Rent or
Additional Rent payable pursuant to Sections 2.1 and 2.2 for a portion of a
calendar month shall be prorated based upon the number of days in the applicable
calendar month.
2.8 APPLICATION OF RENT. No payment by Tenant or receipt by Landlord
of lesser amounts of Base Annual Rent or Additional Rent than those required by
this Lease shall be deemed to be other than on account of the earliest unpaid
stipulated Base Annual Rent or Additional Rent. No endorsement or statement on
any check or any letter accompanying any check or payment as Base Annual Rent or
Additional Rent shall be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such Base Annual Rent and Additional Rent or pursue any other
remedy provided in this Lease. Any credit due to Tenant hereunder by reason of
overpayment of Base Annual Rent or Additional Rent shall first be applied to any
Base Annual Rent, Additional Rent or other sums owed to Landlord by Tenant as
set forth elsewhere in this Lease or if Tenant shall be in default when said
credit shall be owed.
2.9 LATE PAYMENT FEE AND INTEREST CHARGE. In the event any installment
of Base Annual Rent or Additional Rent due hereunder is not paid within ten (10)
calendar days after it is due, then Tenant shall also pay to Landlord as
Additional Rent (a) a late payment fee equal to five percent (5%) of the payment
as liquidated damages for the additional administrative costs incurred by
Landlord as a result of such late payments, plus (b) an interest charge
calculated at the rate of eighteen percent (18%) per annum on the delinquent
payment from the date due until paid.
2.10 OTHER TENANT COSTS AND EXPENSES. All costs and expenses which
Tenant assumes or agrees to pay to Landlord pursuant to this Lease, including
without limitation costs of construction and alterations, shall be deemed
Additional Rent, whether or not the same is specifically designated herein as
Additional Rent, and, in the event of nonpayment thereof, Landlord shall have
all the rights and remedies herein provided for the nonpayment of Base Annual
Rent and Additional Rent payable pursuant to Sections 2.1 and 2.2, including
assessment of late payment fees and interest charges.
3. CONSTRUCTION OF PREMISES AND OCCUPANCY
3.1 TENANT PLANS, CONSTRUCTION AND RENT LIABILITY. Exhibit F attached
to this Lease, describes the obligations of Landlord and Tenant, and the
respective time periods for performance thereof, for the preparation and
approval of construction plans, cost estimates, working drawings and completion
of improvements and fixturing for occupancy. The improvements to be constructed
by Landlord in the Demised Premises are hereinafter referred to as the
"Construction Improvements". Said time periods shall apply irrespective of
whether Tenant uses the architect, engineer and/or general contractor selected
by Landlord, or firms of Tenant's own selection. The Tenant shall deliver to
Landlord, by the date specified on Exhibit F, a preliminary plan approved in
writing by the Tenant showing Tenant's partition, electrical and telephone
requirements, planned occupancy numbers and distribution within the Demised
Premises, and all other requirements set forth in the Tenant Plans Guidelines,
attached hereto and made a part hereof as Exhibit E, or otherwise deemed
necessary by the Landlord for the preparation of the working drawings and cost
estimate.
(a) Preparation of Tenant Plans.
(i) If Tenant uses architects and engineers selected by
Landlord, Landlord shall pay for preparation of the first preliminary plan (and
one revision) specified on Exhibit F, and the first set of working drawings (and
one set of revisions) for building standard design features (as defined in the
Outline Specifications, if any, attached hereto and made a part hereof as
Exhibit B, and applicable to first generation space only) or for design features
to be built at Landlord's expense (applicable to space other than first
generation space); all subsequent revisions of preliminary plans and working
drawings, plus the cost of all design work related to above building standard
design features and for design features not to be built at Landlord's expense,
as applicable, shall be at Tenant's expense.
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(ii) If Tenant's architect or engineer prepares the
preliminary plan, the preliminary plan and all revisions thereto shall be at
Tenant's expense. Landlord shall pay for one set of working drawings for
building standard design features (applicable to first-generation space) or for
design features to be built at Landlord's expense (applicable to space other
than first-generation space) and one cost estimate. All design work related to
above building standard design features and to design features not to be built
at Landlord's expense and all subsequent revisions to drawings and estimates
shall be at Tenant's expense. Landlord shall have the right to approve any
architect and/or engineer selected by Tenant, which approval shall not be
unreasonably withheld, and each of Tenant's architects and engineers shall be
licensed in the jurisdiction in which the Demised Premises are located and shall
maintain (and provide Landlord with evidence of the existence of) professional
liability insurance adequate in Landlord's reasonable judgment.
(iii) Tenant's preliminary plan, whether prepared by an
architect or engineer selected by Landlord or by Tenant's architect or engineer,
shall provide sufficient information to permit Landlord to have working drawings
and cost estimate prepared. Tenant's preliminary plan shall be certified by the
architect or engineer preparing same to be in compliance with applicable
building and fire codes, and with The Americans with Disabilities Act and all
amendments, modifications, extensions, replacements, regulations, orders and
directives in connection therewith (the "ADA"). If the Demised Premises as
reflected on Tenant's plans are not in compliance with applicable building and
fire codes, or do not comply with all requirements of the ADA, then Tenant's
plans shall not be, nor shall they be deemed to be, acceptable to Landlord.
Landlord's approval of Tenant's plans or work does not constitute certification
by Landlord that said plans or work meet the applicable requirements of any
building or fire codes, laws or regulations, or the ADA, nor shall it impose any
liability whatsoever upon Landlord. If Tenant's preliminary plans are acceptable
to Landlord, Landlord shall have working drawings prepared within the time
period set forth on Exhibit F, and when the working drawings are completed by
the architect and engineer, the Tenant shall approve in writing both the working
drawings and Landlord's final cost estimate within the number of working days
stipulated on Exhibit F. Tenant's failure to approve or disapprove any estimates
or plans within the time periods set forth on Exhibit F shall be deemed to
constitute approval for purposes of this Section.
(b) Extension of Construction Timetable. Nothing contained in this
Section 3.1, nor any delay in completing the Demised Premises, shall in any
manner affect the Commencement Date set forth in Section 1.2 or Tenant's
liability for payment of Base Annual Rent and Additional Rent from such
Commencement Date, except as follows. If Landlord requires longer than the
number of working days stipulated on Exhibit F to prepare working drawings and
prepare the cost estimate following receipt of Tenant's approved preliminary
plan, or if Landlord requires longer than the number of working days stipulated
on Exhibit F to substantially complete Construction Improvements in the Demised
Premises after the final working drawings and cost estimate have been approved
by the Tenant in writing, then the Commencement Date shall be postponed by one
day for each extra day Landlord requires for the foregoing preparation of
working drawings and cost estimate and/or substantial completion of Construction
Improvements, as the case may be, which postponement shall be Tenant's sole and
exclusive remedy. In the event Tenant delays approval of either the preliminary
plan, the working drawings and/or the final cost estimate or makes changes in
the work after approval of working drawings and the final cost estimate, or
Tenant's contractors interfere with Landlord's work, thereby delaying
substantial completion and Landlord's tender of possession of the Demised
Premises to Tenant, Tenant shall nevertheless remain liable for the payment of
Base Annual Rent and Additional Rent from the Commencement Date specified in
Section 1.2. Time is of the essence as to the Tenant's performance within the
time periods specified for approval of plans and cost estimates set forth on
Exhibit F pursuant to this Section 3.1.
(c) Substantial Completion. For the purposes of this Section 3.1,
"substantial completion" of the Construction Improvements shall mean when all
work to be performed by Landlord pursuant to the approved working drawings and
final cost estimate has been completed, except for minor items of work and minor
adjustments of equipment and fixtures that can be completed after occupancy of
the Demised Premises without causing material interference with Tenant's
reasonable use of the Demised Premises (i.e., "punch-list" items) in accordance
with the "use of the premises" as defined in Section 1.8. In the event Tenant's
plans specify any Construction Improvements that are not building standard, or
are not immediately available in the metropolitan Washington, D.C., area within
the time period for construction set forth on Exhibit F, the delivery and
installation of which precludes Landlord from substantially completing the
Construction Improvements in the Demised Premises by the Commencement Date
specified in Section 1.2, Tenant shall nevertheless remain liable for the
payment of Base Annual Rent and Additional Rent from such Commencement Date.
3.2 POSSESSION. If Landlord shall be unable to tender possession of
the Demised Premises on the Commencement Date set forth in Section 1.2 by reason
of: (a) the fact that the Demised Premises are located in a building being
constructed and which has not been sufficiently completed to make the Demised
Premises ready for occupancy; (b) the holding over or retention of possession of
any tenant or occupant; (c) the Construction Improvements have not been
substantially completed due to delays by Landlord; or (d) for any other reason
beyond the control of Landlord, Landlord shall not be subject to any liability
for the failure to tender possession on said date. Under such circumstances the
Base Annual Rent and Additional Rent reserved and covenanted to be paid herein
shall not commence until possession of the Demised Premises is tendered to
Tenant. No such failure to tender possession on the Commencement Date set forth
in Section 1.2 shall in any other respect affect the validity of this Lease or
the obligations of Tenant hereunder, nor shall same be construed to extend the
termination date of this Lease set forth in Section 1.2. In the event the actual
Commencement Date does not occur within one (1) year of the date this Lease is
fully executed and delivered by Landlord and Tenant, then Landlord, without
further liability to Tenant, shall have the right to terminate this Lease upon
thirty (30) days prior written notice to Tenant. If permission is given to
Tenant to enter into possession of the Demised Premises prior to the date
specified as the Commencement Date, Tenant covenants and agrees that such
occupancy shall be deemed to be subject to all of the terms, covenants,
conditions and provisions of this Lease, and that Tenant shall be responsible
for payment of Base Annual Rent, in advance, at the rate of 1/30th of the base
monthly rent set forth in Section 1.3 for each day of such occupancy prior to
the Commencement Date, and Additional Rent set forth in Section 1.5 shall begin
to accrue on such date of possession.
3.3 PERMITS. Tenant shall be responsible for obtaining at its sole
cost and expense the construction and occupancy permits for the Demised
Premises. Tenant shall be responsible for obtaining any other permits or
licenses necessary for its lawful occupancy of the Demised Premises. Tenant
shall provide Landlord with a copy of all such permits and licenses.
3.4 DEMISED PREMISES. Landlord shall have the right to change the
location and configuration of the Demised Premises at any time, subject to the
following terms and conditions: (a) subsequent to the Commencement Date,
Landlord shall provide Tenant not less than thirty (30) days advance written
notice of the date Tenant must vacate the Demised Premises; (b) Landlord shall
provide Tenant with substitute space of similar nature and size elsewhere in the
Building or in the Complex (the "Substitute Premises"); and (c) Landlord shall
at Landlord's expense remove Tenant's Property from the Demised Premises and
reinstall them in the Substitute Premises, and redecorate the Substitute
Premises in a manner substantially similar to the manner in which the Demised
Premises were decorated. Landlord shall use reasonable efforts to minimize the
disruption to Tenant's business, but in no event shall Landlord be
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liable for any loss of business or other damages to or expenses of Tenant,
except for any physical damage to Tenant's Property incurred during the move.
Within ten (10) days after Landlord submits an amendment of this Lease or a
replacement lease indicating the location and configuration of the Substitute
Premises, Tenant shall execute such amendment or lease, as applicable, and
deliver it to Landlord, failing which Tenant hereby irrevocably appoints
Landlord as its special attorney-in-fact to execute such amendment or lease, as
applicable, the foregoing power of attorney being deemed to be coupled with an
interest.
4. SUBLETTING AND ASSIGNMENT
4.1 CONSENT. Without the prior written consent of Landlord, not to be
unreasonably withheld or delayed in accordance with Section 4.5, Tenant will not
sublet the Demised Premises or any part thereof or transfer possession or
occupancy thereof to any person, firm or entity, or transfer or assign this
Lease, and no subletting or assignment hereof shall be effected by operation of
law or in any other manner, such as the transfer of all or substantially all of
Tenant's assets or voting control of Tenant's stock, partnership interest or
other equity, without such prior written consent of Landlord. If Tenant is a
partnership, then any sale, conveyance, or other transfer of, or the grant of a
security interest in, any partnership interest, or any dissolution of Tenant, or
any act which will result in a potential future change in control, or a
withdrawal or change, whether voluntary, involuntary or by operation of law, of
a partner or partners owning a controlling interest in Tenant, shall be deemed a
voluntary assignment of this Lease. If Tenant is a corporation, then any sale,
conveyance, or other transfer of, or grant of a security interest in any
controlling shares of stock, dissolution, merger, consolidation or other
reorganization of Tenant, or any sale or transfer of a controlling interest of
its capital stock, or any act which will result in a potential future change in
control, or a withdrawal or change, whether voluntary, involuntary or by
operation of law, of a shareholder or shareholders owning a controlling interest
in Tenant, shall be deemed a voluntary assignment of this Lease. All permitted
sublettings and assignments of the Demised Premises and this Lease shall be
subject to the provisions of this Lease, including but not limited to Section
4.3. No assignment shall be made except for the entire Demised Premises and
Tenant further agrees that any permitted assignment of this Lease or subletting
of the Demised Premises may be conditioned upon payment by Tenant of
consideration and the delivery of such additional guarantees, collateral and/or
other security as determined by Landlord. Any subletting or assignment consented
to by Landlord, to be effective, shall be evidenced in writing in a form
acceptable to Landlord. Consent by Landlord to any assignment or subletting by
Tenant shall not operate as a waiver of the necessity for obtaining Landlord's
consent in writing to any subsequent assignment or subletting. The collection or
acceptance of rent from any such assignee, subtenant or other occupant shall not
constitute a waiver of or release of Tenant from any covenant or obligation
contained in this Lease, nor shall such acceptance of rent be deemed to create
any right to the Demised Premises in such assignee, subtenant or other occupant,
nor any legal or other relationship between the Landlord and any such assignee,
subtenant or other occupant. Landlord's acceptance of any name for listing on
the Building directory shall not be deemed, nor will it substitute for,
Landlord's consent as required by this Lease, to each sublease, assignment and
any other occupancy of the Demised Premises. In the event that Tenant defaults
under this Lease in the payment of Base Annual Rent or Additional Rent, Tenant
hereby assigns to Landlord the rent and other sums due from any subtenant,
assignee or other occupant and hereby authorizes each such subtenant, assignee
and other occupant to pay said rent and other sums directly to Landlord upon
demand. Any transfer of this Lease or the Demised Premises, or any transfer of
any interest in Tenant restricted pursuant to this Section 4.1, without the
prior written consent of Landlord pursuant to this Section 4.1 shall be void. By
taking a transfer of this Lease by assignment, transfer of interest in Tenant,
or by any other manner described in this Section 4.1, or otherwise with
Landlord's consent to the transfer, the transferee shall be bound by all
provisions of this Lease, which shall be binding upon the transferee as if the
transferee had signed this Lease in lieu of the original Tenant named herein.
4.2 RECAPTURE OF PREMISES. In the event Tenant desires to sublet the
Demised Premises or assign this Lease or effect the transfer of any interest in
this Lease or in Tenant restricted pursuant to Section 4.1, Tenant shall give to
Landlord written notice of Tenant's intended subtenant, assignee or transferee
in order to secure Landlord's written consent in accordance with Section 4.1.
Within ninety (90) days of receipt of said notice, Landlord shall have the
right, at its option: (i) to terminate this Lease by giving Tenant not less than
thirty (30) days notice if Tenant's notice states the Tenant's desire to assign
this Lease or sublet more than fifty percent (50%) of the Demised Premises or
effect a restricted transfer of an interest in this Lease or in Tenant; or (ii)
if Tenant's notice states the Tenant's desire to sublet a portion of the Demised
Premises, to terminate this Lease and simultaneously to enter into a new lease
with Tenant for that portion of the Demised Premises Tenant may desire to retain
upon the same terms, covenants and conditions as then set forth in this Lease,
prorated based upon the space retained by Tenant. If Landlord exercises its
right to terminate this Lease pursuant to clauses (i) or (ii) above, Tenant
agrees that Landlord shall have access to all or any portion of the Demised
Premises sixty (60) days prior to the effective termination date for remodeling
or redecorating purposes. Tenant shall promptly execute such lease amendments
and other documents as Landlord may require to effectuate the terms and intent
of this Section 4.2.
4.3 EXCESS RENT AND OTHER CONSIDERATION. Any rent and other consideration
accruing to Tenant as the result of any sublease or any assignment of this
Lease, which is in excess of the pro rata share of Base Annual Rent and
Additional Rent then being paid by Tenant for all or a portion of the Demised
Premises being sublet or assigned, shall be paid by Tenant to Landlord monthly
as Additional Rent. Any consideration accruing to Tenant as the result of any
transfer of interest in Tenant restricted pursuant to Section 4.1, which is paid
or deemed paid in regard to the value of this Lease and which is in excess of
the pro rata share of the Base Annual Rent and Additional Rent which would have
been paid by Tenant during the Lease Term for such space, shall be paid by
Tenant to Landlord promptly as Additional Rent.
4.4 TENANT LIABILITY. In the event of any subletting of the Demised
Premises or assignment of this Lease by Tenant or transfer of an interest in
this Lease or in Tenant, Tenant shall remain liable to Landlord for payment of
the Base Annual Rent and Additional Rent stipulated herein and all other
covenants and conditions contained herein. No subletting of the Demised Premises
or assignment of this Lease or transfer of an interest in this Lease or in
Tenant shall operate to release, discharge or otherwise affect the liability of
any guarantors, co-signers or other parties liable to Landlord pursuant to the
terms of any guaranty or otherwise for the obligations of Tenant under this
Lease.
4.5 REASONABLE STANDARDS OF CONSENT. Tenant acknowledges that Landlord,
in considering whether to grant or withhold consent required of Landlord
pursuant to this Section 4, shall be entitled to apply any or all of the
following criteria:
(a) The financial strength of proposed
subtenant/assignee/transferee must be acceptable to Landlord in Landlord's
reasonable discretion based on adequate current and historical financial
information given by Tenant. Landlord shall be entitled to receive, and Tenant
shall deliver or cause others to deliver, such guarantees, collateral and other
security as Landlord shall request in conjunction with any prospective sublease,
assignment or other transfer. Failure to provide such financial information,
guarantees, collateral and other security shall be grounds for Landlord to
withhold or deny consent;
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(b) The proposed subtenant/assignee/transferee must have a good
reputation in the business community and must be credit-worthy;
(c) Use of the Demised Premises by the proposed
subtenant/assignee/transferee must be identical to the use permitted by this
Lease;
(d) Use of the Demised Premises by the proposed
subtenant/assignee/transferee shall not violate or create any potential
violation of any laws and must be in keeping with the character of the Building
and the Complex;
(e) Use of the Demised Premises by the proposed
subtenant/assignee/transferee shall not violate, or cause Landlord to violate,
any other leases, agreements or mortgages affecting (i) the Demised Premises,
the Building, the Complex or the land related to such improvements, or (ii) the
Landlord, Landlord's Agent or other tenants, whether such leases, agreements or
mortgages were entered into prior or subsequent to this Lease;
(f) The proposed use shall be compatible with all other uses
within the Building or Complex and the proposed use or user shall not cause a
diminution in the reputation of the Building, the Complex, Landlord, Landlord's
Agent or other tenants;
(g) The proposed subtenant/assignee/transferee shall have no right
to further sublet the subleased premises, nor to further assign this Lease, nor
to further transfer any interest in such proposed subtenant/assignee/transferee;
(h) In the event Tenant is in default, consent may be withheld
irrespective of whether these other criteria are met by the proposed
subtenant/assignee/transferee.
4.6 OTHER TRANSFERS. Notwithstanding anything herein to the contrary,
Tenant shall not pledge, assign, transfer, encumber or otherwise convey its
interest in the Demised Premises conditionally or as security for any
obligations of Tenant to any third party, or otherwise. Any such transfer in
violation of this provision shall be void.
4.7 RIGHTS ON DEFAULT. In the event Tenant defaults under this Lease, in
addition to the rights and remedies of Landlord outlined in Section 12,
Landlord, at its option, may elect to recognize any sublease between Tenant and
any subtenant, or any agreement by which Tenant has granted any leasehold estate
or interest in the Demised Premises, as a direct lease or agreement between
Landlord and such subtenant or other grantee, upon written notice to Tenant and
such subtenant or other grantee, without releasing or affecting the liability of
Tenant to Landlord under this Lease, and Tenant shall be deemed to have assigned
its interest in such sublease or other agreement to Landlord (without the need
for executing any further documentation evidencing same) and such subtenant or
other grantee shall attorn to and recognize the rights of Landlord under such
sublease or other agreement, as the case may be. Notwithstanding Tenant's
consent or acquiescence in the termination of this Lease and/or Tenant's
voluntary surrender of the Demised Premises (or any portion thereof), Landlord
may consider any sublease or other agreement transferring a leasehold estate or
interest in the Demised Premises, and/or any right to use or possess the Demised
Premises (or any portion thereof) by any subtenant or other grantee, terminated
as of the date Landlord terminates this Lease and/or Tenant's right to
possession of the Demised Premises, it being the intention of the parties that
any leasehold estate or other interest in the Demised Premises shall be subject
to the terms and conditions of this Lease, including all rights and remedies of
Landlord outlined herein, notwithstanding anything to the contrary contained in
such sublease or other agreement.
5. SERVICES AND UTILITIES
5.1 BUILDING STANDARD SERVICES AND UTILITIES. Subject to the limitations
set forth in Section 5.3 below, Landlord shall furnish sufficient electric
current for lighting and office equipment such as typewriters, calculators,
small copiers, desktop personal computers and word processors and similar items.
Landlord shall also furnish water for lavatory and drinking purposes, lavatory
supplies, fluorescent tube replacements, automatically operated elevator service
and nightly cleaning service in accordance with Landlord's prevailing practices
(as set forth in Exhibit D attached hereto), as they may be modified from time
to time, except that Landlord shall not be responsible for cleaning Tenant's
kitchens, private bathrooms, rugs, carpeting (except vacuuming) and drapes.
Landlord shall have no liability for and expressly disclaims any responsibility
for the engineering, design, installation, provision of or maintenance of
Tenant's telecommunications and data transmission systems and the inside wire
associated therewith. Landlord further agrees to furnish heating and cooling
during the appropriate seasons of the year, between the hours and on the days
set forth in Section 1.7 (exclusive of legal public holidays as defined in
section 6103(a) and (c) of Title 5 of the United States Code, as it may
hereafter be amended, with holidays falling on Saturday observed on the
preceding Friday and holidays falling on Sunday observed on the following
Monday). All of the aforesaid services shall be provided without cost to Tenant
except as such expenses may be included in calculating Additional Rent pursuant
to the provisions of Sections 2.2 and 2.3. Landlord shall not be liable for
failure to furnish, or for suspension or delay in furnishing, any of such
services if such failure, suspension or delay is caused by breakdown,
maintenance or repair work, strike, riot, civil commotion, governmental
regulations, emergency periods due to weather or any other cause or reason
whatever beyond the reasonable control of Landlord. Failure, suspension, delay
or interruption of services shall not result in any abatement of Base Annual
Rent or Additional Rent, be deemed an eviction or breach of this Lease
(including any express or implied covenant of quiet enjoyment), or relieve
Tenant of performance of Tenant's obligations under this Lease.
5.2 OVERTIME SERVICES. Should Tenant require heating and cooling services
beyond the hours and/or days stipulated in Section 1.7, upon receipt of at least
48 hours prior written notice from Tenant, Landlord will furnish such additional
service at the then-prevailing hourly rates for both utility services and
personnel as established by Landlord from time to time; provided, further, that
there will be a minimum charge of four (4) hours each time overtime services are
required.
5.3 EXCESSIVE USAGE.
(a) Equipment Restrictions. Tenant will not install or operate in
the Demised Premises any heavy duty electrical equipment or machinery or any
other equipment which consumes excess gas (where applicable), excess water,
excess sewer services or excess electricity as defined in Section 5.3(b) below,
without first obtaining prior written consent of Landlord. Landlord may, among
other things, require as a condition to its consent for the installation of such
equipment or machinery that Tenant pay as Additional Rent the costs for excess
consumption of such utilities that may be occasioned by the operation of said
equipment or machinery. Landlord may make periodic inspections of the Demised
Premises at reasonable times to determine that Tenant's equipment and machinery
comply with the provisions of this Section and Section 5.4.
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(b) Excess Electrical Usage. The consumption of electricity,
including lighting, in excess of five (5) xxxxx per square foot for any portion
of the Demised Premises shall be deemed excessive. Additionally, any individual
piece of electrically operated machinery or equipment having a name plate rating
in excess of two (2) kilowatts shall also be deemed as requiring excess electric
current.
(c) Additional Utility Costs. Landlord shall have the right to
either require that one or more separate meters be installed to record the
consumption or use of electricity or other utilities, or cause a reputable
independent engineer to survey and determine the quantity of such utilities
consumed by such excessive use. The cost of any such survey and meters and of
installation, maintenance and repair thereof shall be paid for by Tenant.
Tenant agrees to pay Landlord (or the utility company, if direct service is
provided by the utility company), promptly upon demand therefor, for all such
consumption and demand as shown by said meters, or a flat monthly charge
determined by the survey, as applicable, at the rates charged for such service
by the local public utility company. If Tenant's cost of such utilities based
on meter readings is to be paid to Landlord, Tenant shall pay a service charge
related thereto in an amount Landlord shall reasonably determine.
5.4 EXCESSIVE HEAT GENERATION. Landlord shall not be liable for its
failure to maintain comfortable atmospheric conditions in all or any portion of
the Demised Premises due to heat generated by over-occupancy of the Demised
Premises or by any equipment, machinery or additional lighting installed by
Tenant (with or without Landlord's consent) that exceeds design capabilities for
the Building. Over-occupancy shall mean any occupancy of the Demised Premises in
excess of the planned occupancy disclosed by Tenant to Landlord pursuant to
Section 3.1. If Tenant desires additional cooling to offset excessive heat
generated by such over-occupancy, equipment, machinery or additional lighting,
Tenant shall pay for auxiliary cooling equipment and the operating, maintenance,
repair and replacement costs of such equipment, including without limitation
electricity, gas, oil and water. If Tenant does not desire such auxiliary
cooling equipment, Tenant shall pay for excess electrical consumption by the
existing cooling system.
5.5 BUILDING SECURITY. Any security system or other security measures
(collectively, the "Security System") that Landlord may undertake for protection
of the Demised Premises, the Building and/or Complex (including any parking
garages or areas) are for the protection of the physical structures only and
shall not be relied upon by Tenant, its agents, employees or invitees to protect
Tenant, Tenant's Property and Leasehold Improvements or Tenant's employees,
invitees or their property. Tenant shall not do anything to circumvent or allow
others to circumvent any Security System. Landlord shall not be liable for any
failure of any Security System to operate or for any breach or circumvention of
the Security System by others, and Landlord makes no representations or
warranties concerning the installation, performance and monitoring of any
Security System, or that it will detect or avert the occurrences which any such
Security System is intended or expected to detect or avert.
5.6 ROOF AND AUXILIARY SPACES. Tenant shall not use the roof, roof
utility closets or other auxiliary spaces in the Building for antennas,
condenser coolers, telecommunications and/or data transmission equipment or any
other type of equipment or for any other purpose without the prior written
consent of Landlord, which consent may be conditioned upon the terms of a
separate written agreement and the payment by Tenant of separate consideration
for the use of such space.
5.7 TRASH REMOVAL. Tenant covenants and agrees, at its sole cost and
expense, to comply with all present and future laws, orders and regulations of
the federal, state, county, municipal and local governments, departments,
commissions, agencies and boards regarding the collection, sorting, separation
and recycling of trash. Upon request by Landlord, Tenant shall sort and separate
its trash into such categories as are provided by law. Each separately sorted
category of trash shall be placed in separate receptacles as directed by
Landlord. Landlord reserves the right to refuse to collect or accept from Tenant
any trash that is not separated and sorted as required by law and directed by
Landlord, and to require Tenant to arrange for such collection at Tenant's sole
cost and expense, utilizing a contractor satisfactory to Landlord. Tenant shall
pay all costs, expenses, fines, penalties and damages that may be imposed on
Landlord or Tenant by reason of Tenant's failure to comply with the provisions
of this Section, and Tenant, at Tenant's sole cost and expense, shall indemnify,
defend and hold Landlord harmless from and against any actions, claims and suits
(including legal fees and expenses) arising from such noncompliance, utilizing
counsel reasonably satisfactory to Landlord.
6. USE AND UPKEEP OF PREMISES
6.1 USE. Tenant shall use and occupy the Demised Premises only for the
purposes specified in Section 1.8 and for no other purpose whatsoever, and shall
comply, and cause its employees, agents, contractors, invitees and other users
of the Demised Premises to comply, with all applicable federal, state and local
laws, statutes, ordinances and regulations, including, but not limited to, the
ADA, zoning regulations, and smoking regulations. Any variation or deviation
from the specific use expressly set forth in Section 1.8 shall be deemed a
default of this Lease. Tenant shall pay before delinquency any business, rent
and other tax and fee that is now or hereafter assessed or imposed upon Tenant's
use or occupancy of the Demised Premises, the conduct of Tenant's business in
the Demised Premises or Tenant's Property. If any such tax or fee is enacted or
altered so that such tax or fee is imposed upon Landlord so that Landlord is
responsible for collection or payment thereof, then Tenant shall promptly pay
the amount of such tax or fee directly to the taxing authority, or if previously
paid by Landlord, to Landlord upon demand.
6.2 ILLEGAL AND PROHIBITED USES. Tenant will not use or permit the Demised
Premises or any part thereof to be used for any disorderly, unlawful or extra
hazardous purpose and will not manufacture anything therein. Tenant will not use
or permit the Demised Premises to be used for any purposes that interfere with
the use and enjoyment by other tenants of the Building or Complex or, in
Landlord's opinion, impair the reputation or character of the Building, Complex,
Landlord or Landlord's Agent. Tenant shall immediately refrain from and
discontinue such use after receipt of written notice from Landlord.
6.3 INSURANCE RATING. Tenant will not do or permit anything to be done in
the Demised Premises, the Building or the Complex or bring or keep anything
therein which shall in any way increase the rate of fire or other insurance on
said Building or the Complex, or on the property kept therein, or conflict (or
permit any condition to exist which would conflict) with applicable fire laws or
regulations, or with any insurance policy upon said Building or Complex or any
part thereof, or with any statute, rules or regulations enacted or established
by any appropriate governmental authority. Tenant shall be responsible for any
increase in insurance costs with respect to the Building or Complex if the
increases were caused by its actions or failure to act.
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6.4 Alterations.
(a) Approval Required. Tenant shall not make any alterations,
installations, changes, replacements, repairs, additions or improvements in or
to (or which interfere with) the structural elements of the Building or the
Demised Premises, or the Systems (hereinafter defined), without the prior
written consent of Landlord, which consent may be granted or withheld in
Landlord's sole and absolute discretion. Tenant shall not make any
non-structural, non-System or cosmetic alterations, changes, replacements,
repairs, additions or improvements in or to the Demised Premises or any part
thereof, without the prior written consent of Landlord, which consent shall not
be unreasonably withheld. All Tenant plans and specifications shall be submitted
to Landlord for prior approval. All Tenant engineering plans and specifications
shall be prepared at Tenant's expense by Landlord's designated engineer.
Landlord may, among other things, condition its consent upon Tenant's agreement
that any construction up-gradings required by any governmental authority as a
result of Tenant's work, either in the Demised Premises or in any other part of
the Building or Complex, will be paid for by Tenant in advance. Tenant shall not
install any equipment of any kind or nature whatsoever which will or may
necessitate any changes, replacements or additions to the water system, plumbing
system, heating system, ventilating system, air-conditioning system, supply,
return or control systems, Landlord's data system(s), or the electrical system
of the Demised Premises or the Building (collectively, the "Systems"), nor
install or use any air-conditioning unit, engine, boiler, generator, machinery,
heating unit, stove, water cooler, ventilator, radiator or any other similar
apparatus, nor modify or interfere with any of the Systems, without the prior
written consent of the Landlord, which consent may be granted or withheld in the
Landlord's sole and absolute discretion. Any auxiliary air-conditioning
equipment which Tenant may desire to install in the Demised Premises shall be
connected to the Building's commercial condenser water system, if available, and
Tenant shall pay to Landlord such reasonable charges as established by Landlord
from time to time for the use of the Building's commercial condenser water
system. Tenant shall not modify or interfere with the Systems without the prior
written consent of Landlord, and then only as Landlord may direct. Landlord may
condition its consent upon Tenant's payment of all costs to make such changes,
replacements or modifications. Tenant shall not design, configure, install, use
or arrange for the design, configuration, installation or use of its
telecommunications and data transmission systems or inside wire associated
therewith in any manner that interferes with the existing telecommunications
and/or data transmission systems or inside wire associated therewith of Landlord
or other tenants in the Building. Landlord's consent to any work by Tenant or
approval of Tenant's plans or specifications shall not be deemed a certification
that such work complies with applicable building codes, laws or regulations, nor
shall it impose any liability whatsoever upon Landlord.
(b) Alteration Requirements. All of Tenant's approved work shall
be done in accordance with Landlord's Supplemental Rules and Regulations for
Contractors (as promulgated and amended by Landlord from time to time) and shall
be done by duly qualified, licensed and bonded contractors in accordance with
all applicable laws, codes, ordinances, rules and regulations, and Tenant shall
obtain (or give) at its cost any required permits, licenses, registrations,
notices, or inspections for performance of its work. Prior to the commencement
of such work Tenant must either deposit with Landlord evidence of the existence
of a bond deemed sufficient by Landlord against construction liens, or obtain an
executed waiver of lien from each contractor or vendor that will perform or
furnish to Tenant work, labor, services or materials for any alterations,
installations, replacements, additions or improvements in or to the Demised
Premises. Notwithstanding the aforesaid, if any mechanic's or materialman's lien
shall at any time, whether before, during or after the Lease Term, be filed
against any part of the Building or other property of Landlord by reason of
work, labor, services or materials performed for or furnished to or on behalf of
Tenant, Tenant shall forthwith cause the lien to be released of record by being
discharged or bonded off to Landlord's satisfaction within five (5) days after
being notified of the filing thereof. If Tenant shall fail to cause such lien to
be released of record within said five (5) day period, then, in addition to any
other right or remedy of Landlord, Landlord may bond off or discharge the lien
by paying the amount claimed to be due. Any amount paid by Landlord, whether as
bond premium or payment of the lien amount, and all costs and expenses,
including reasonable attorneys' fees incurred by Landlord in procuring the same
and its release from the appropriate land records, shall be due from Tenant to
Landlord as Additional Rent, and shall be payable on the first day of the next
following month, or if the Lease Term has expired, upon demand.
(c) Removal of Leasehold Improvements and Tenant's Property. All
Leasehold Improvements within the Demised Premises shall, subject to Landlord's
right to require Tenant to remove all or any portion of the Leasehold
Improvements and restore the Demised Premises to its condition as of the date
this Lease is fully executed and delivered by Landlord and Tenant, remain at the
expiration or earlier termination of the Lease Term without disturbance,
molestation or injury. Should Landlord elect that Leasehold Improvements be
removed upon the expiration or earlier termination of the Lease Term, and/or
should Tenant fail to remove all or any portion of Tenant's Property in
accordance with the provisions of this Lease, Tenant hereby agrees that Landlord
shall have the right to cause all or any portion of the Leasehold Improvements
and/or Tenant's Property to be removed at Tenant's sole cost and expense. Tenant
hereby agrees to reimburse Landlord for the cost of such removal together with
the cost of repairing any damage resulting therefrom, and the cost of restoring
the Demised Premises to its condition as of the date this Lease is fully
executed and delivered by Landlord and Tenant. Approximately sixty (60) days
prior to Tenant's scheduled vacation of the Demised Premises, Landlord and
Tenant shall meet to review what items shall be removed and what items shall
remain as Landlord may determine. Landlord shall provide its estimate to Tenant
of the costs of such removal and the costs of any repairs to or restoration of
the Demised Premises as herein provided, and Tenant shall promptly deposit with
Landlord a sum equal to such estimated costs. In the event Tenant fails to
remove the Leasehold Improvements designated by Landlord for removal prior to
the expiration of the Lease Term and/or fails to remove Tenant's Property as
aforesaid and/or fails to make such repairs and/or restoration as aforesaid,
Landlord shall cause the removal, repair and/or restoration to be performed at
Tenant's sole expense, which expense shall not be limited by the amount of the
deposit referred to herein. Tenant shall provide for the transfer or disposal of
all items removed, failing which Landlord is hereby authorized to dispose of
same in any manner deemed appropriate, including, but not limited to, disposal
into the trash, without liability to Tenant, and at Tenant's sole cost and
expense, and Tenant shall indemnify, defend and hold harmless Landlord,
Landlord's Agent and their respective employees and agents from and against all
claims, damages, costs and expenses, including reasonable attorneys' fees,
arising from or in connection with the disposal of all or any items removed by
Landlord hereunder. In the event, for whatever reason, the parties do not meet
to review which items shall be removed and which items shall remain, and/or the
Tenant, for whatever reason, fails to deposit with the Landlord the deposit
hereinabove stated, then the Landlord is hereby authorized to proceed, as it
deems appropriate, with such removal and disposition of property, and repair
and/or restoration, without liability to Tenant, and at Tenant's sole cost and
expense.
(d) Compliance with Laws. In the event that during the Lease Term
either Landlord or Tenant shall be required by the order or decree of any court,
or any other governmental authority, or by law, code or ordinance (including but
not limited to the ADA), to repair, alter, remove, reconstruct, or improve any
part of the Demised Premises or of the Building, then Tenant agrees, at its sole
cost and expense, to comply with such requirements imposed on Demised Premises
or Tenant and shall perform, at its expense, or Tenant shall permit Landlord to
perform, at Tenant's expense, such repairs, alterations, removals,
reconstructions, or improvements. Within
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ten (10) days after receipt, Tenant shall advise Landlord in writing, and
provide the Landlord with copies of (as applicable), (i) any notices alleging
violation of any law, code, or ordinance (including the ADA) relating to any
portion of the Demised Premises or the Building, (ii) any claims made or
threatened in writing regarding noncompliance with any law, code or ordinance
and relating to any portion of the Building or of the Demised Premises, or (iii)
any governmental or regulatory actions or investigations instituted or
threatened regarding noncompliance with any law, code or ordinance and relating
to any portion of the Building or the Demised Premises. No such order or decree
or the compliance required therewith shall have any effect whatsoever on the
obligations or covenants of Tenant herein contained. Tenant hereby waives all
claims for damages or abatement of Base Annual Rent and Additional Rent because
of such repairing, alteration, removal, reconstruction, or improvement.
6.5 MAINTENANCE BY LANDLORD.
(a) Landlord Repairs and Maintenance. Except to the extent that
Tenant is required to maintain and repair pursuant to Sections 5.4, 6.4, 6.7,
6.8, 6.10, 6.11, 9 and 21, Landlord shall maintain and repair all public or
common areas located within the Building, including external landscaping,
walkways and parking areas, and, except to the above extent, Landlord shall make
repairs to structural roofs, walls, standard heating, air conditioning, plumbing
and electrical systems and equipment. Except as otherwise expressly provided in
this Lease, such maintenance shall be provided without cost to Tenant, except
that (i) such expenses may be included in calculating the Additional Rent
pursuant to the provisions of Sections 2.2 and 2.3; and (ii) if such expenses
are incurred by Landlord in making repairs attributable to acts or omissions of
Tenant or Tenant's employees, agents, contractors or invitees, then Tenant shall
reimburse Landlord for all such expenses within ten (10) days after Landlord
submits a xxxx for such costs to Tenant. Tenant hereby waives all claims for
damages or abatement of Base Annual Rent and Additional Rent because of such
repairing, alteration, removal, reconstruction, or improvement.
(b) Use of Demised Premises by Landlord. Landlord reserves the
right to erect, use, maintain, repair and replace all pipes, ducts, conduits,
wiring, fluids, gases, components, and similar materials and structures in and
through the Demised Premises, including any changes, additions or replacements
as Landlord may from time to time make thereto. Landlord may install any and all
materials, equipment, pipes, ducts, conduits, wires, and related fluids, gases,
components and mechanical equipment serving other portions, tenants and
occupants of the Building, in, through, under or above the Demised Premises that
Landlord deems desirable and shall have the right to locate, both vertically and
horizontally, utility lines, wiring, air ducts, flues, duct shafts, drains,
sprinkler mains and valves, and such other facilities within the Demised
Premises as may be deemed necessary by engineering design and/or code and/or
other legal requirements and to repair, alter, replace or remove these items.
These shall be located so as to cause minimum interference with Tenant's use of
the Demised Premises and shall, if possible, be located above Tenant's suspended
ceiling, if any, or as close to the concrete slab as possible, below the floor,
along column lines or in storage areas. Landlord shall have the right to remove
or xxxxx any hazardous materials located in the Demised Premises and Tenant
shall fully cooperate with Landlord in this regard. Landlord's right to locate
facilities within the Demised Premises shall include facilities required by
tenants or occupants in levels above or below the Demised Premises as well as on
the same level as the Demised Premises. None of the above conduct by Landlord
shall be deemed to constitute an interference with Tenant's quiet enjoyment or
an actual or constructive eviction of Tenant. Tenant shall be entitled to no
abatement of Base Annual Rent or Additional Rent whatsoever on account of such
installation, location, construction, use, entry, removal, repair, maintenance
or other conduct as aforesaid.
6.6 SIGNS AND PUBLICATIONS. No sign, advertisement or notice shall be
inscribed, painted or affixed on any part of the outside of the Building, or in
the common areas of the Building, or inside the Demised Premises where it may be
visible from the public areas of the Building, except on the directories and
doors of offices, and then only in such size, color, method of attachment and
style as Landlord shall approve. Landlord shall have the right to prohibit any
signage or publication of Tenant on the Demised Premises which in Landlord's
opinion tends to impair the reputation or character of the Building, Complex,
Landlord or Landlord's Agent. Tenant shall refrain from and discontinue such
signage or publication upon receipt of written notice from Landlord, but in no
event later than one (1) day after receipt of such notice.
6.7 EXCESSIVE FLOOR LOAD. Landlord shall have the right to prescribe
the weight and method of installation of safes, computer equipment, and other
heavy fixtures or equipment. Tenant will not install in the Demised Premises any
item of Tenant's Property or fixtures that will place a load upon the floor
exceeding the designed floor load capacity of the floor and the Building.
Landlord may prescribe the placement and positioning of all such objects within
the Demised Premises and/or Building, and, if necessary, such objects shall be
placed upon platforms, plates or footings of such size as Landlord shall
prescribe. All damage done to the Building or the Demised Premises by installing
or removing a safe or any other article of Tenant's Property or fixtures, or due
to its being in the Demised Premises, shall be repaired at the expense of
Tenant.
6.8 MOVING AND DELIVERIES.
(a) Prohibitions/Notices. Moving in or out of the Building is
prohibited on days and hours specified in Section 1.7. Tenant shall only use
freight elevators and loading areas, if provided in the Building, for all moving
and deliveries. Tenant shall provide Landlord with forty-eight (48) hours
advance written notice of any move and obtain Landlord's approval therefor in
order to facilitate scheduling use of freight elevators and loading areas.
(b) Coordination with Landlord. No freight, furniture or other
bulky matter of any description shall be received into the Building or carried
in the elevators, except as authorized by Landlord. All moving of furniture,
material and equipment shall be under the direct control and supervision of
Landlord, who shall, however, not be responsible for any damage to or charges
for moving same. Deliveries from lobby and freight areas requiring use of hand
carts shall be restricted to freight elevators. All hand carts shall be equipped
with rubber tires and side guards. Any control exercised by Landlord hereunder
shall be deemed solely for the benefit of Landlord and the Building, and shall
not be deemed to make any of Tenant's employees, agents or contractors the agent
or servant of Landlord. Tenant shall promptly remove from the public areas in or
adjacent to said Building any of Tenant's property delivered or deposited there.
(c) Moving Damages. Any and all damage or injury to the Demised
Premises or the Building caused by moving the property of Tenant into or out of
the Demised Premises shall be repaired at the sole cost of Tenant. In
conjunction with the foregoing, Tenant shall indemnify, defend and hold Landlord
harmless with respect to any and all damages and injuries to the Demised
Premises or the Building, and with respect to any property damage and injury to
others. Without releasing Tenant from any liability hereunder, Tenant shall
cooperate with Landlord to identify delivery contractors and movers causing
damage to the Building or Demised Premises or causing property damage or injury
to others.
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6.9 RULES AND REGULATIONS. Tenant shall, and shall ensure that Tenant's
agents, employees, invitees and guests, faithfully keep, observe and perform the
Building Rules and Regulations set forth in Exhibit C, attached hereto and made
a part hereof, and such amendments, modifications and additions thereto as
Landlord may promulgate from time to time, unless waived in writing by Landlord.
Any other such rules and regulations shall not substantially interfere with the
intended use of the Demised Premises, but Tenant acknowledges that the Building
Rules and Regulations, which, in Landlord's judgment, are needed for the general
well-being, operation and maintenance of the Demised Premises, the Building and
the Complex, together with their appurtenances, are reasonable. Landlord shall
have the right to specifically enforce all Building Rules and Regulations. In
addition to any other remedy provided for herein, Landlord shall have the right
to collect from Tenant a fine of $200 per incident for each violation of said
Building Rules and Regulations which is not cured within three (3) days after
written notice to Tenant. Nothing contained in this Lease shall be construed to
impose upon Landlord any duty or obligation to enforce such Building Rules and
Regulations, or the terms, conditions or covenants contained in any other lease,
as against any other tenant, and Landlord shall not be liable to Tenant for
violation of the same by any other tenant, its employees, agents, invitees,
licensees, customers, clients, family members or guests. Further, it shall be in
Landlord's reasonable judgment as to whether Tenant is in compliance with the
Building Rules and Regulations.
6.10 TENANT MAINTENANCE AND CONDITION OF DEMISED PREMISES UPON SURRENDER.
At all times during the Lease Term, Tenant will keep the Demised Premises and
the Leasehold Improvements and Tenant's Property therein in good order and
condition, will suffer no waste or injury to the Demised Premises and Leasehold
Improvements, and will, subject to the provisions of Section 6.4(c), at the
expiration or other termination of the Lease Term, surrender and deliver up the
Demised Premises and Leasehold Improvements in like good order and condition as
they shall be at the Commencement Date, ordinary wear and tear and, subject to
the provisions of Section 9, damage by casualty excepted.
6.11 TENANT PROPERTY AND LEASEHOLD IMPROVEMENTS. Maintenance and repair of
Tenant's Property and any Leasehold Improvements within or related to the
Demised Premises shall be the sole responsibility of Tenant, and Landlord shall
have no obligation in connection therewith. Notwithstanding anything herein to
the contrary, and subject to the provisions of Sections 6.4 and 12.8 pertaining
to removal from the Demised Premises, Tenant shall have no right to remove from
the Demised Premises any of Tenant's Property and/or Leasehold Improvements upon
and during the continuation of any default by Tenant under this Lease.
6.12 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES. in the event that
repairs required to be made by tenant pursuant to this lease become necessary
by reason of tenant's failure to maintain the demised premises, tenant's
property and leasehold improvements in good order and condition and in
compliance with all applicable laws, orders and regulations, landlord may, but
shall not be obligated to, make repairs at tenant's expense. within ten (10)
days after landlord renders a xxxx for the cost of said repairs, tenant shall
reimburse landlord.
6.13 MEDICAL WASTE. In addition to Tenant's obligations with respect to
Hazardous Substances set forth in Section 21, Tenant shall be solely responsible
for and shall solely provide, at Tenant's sole cost and expense, for the proper
treatment, handling, removal and disposal from the Demised Premises, the
Building, the property of Landlord and the Complex, of all infectious and/or
hazardous medical waste as the same may be determined from time to time by
applicable federal, state or local laws or regulations. Landlord and Landlord's
Agent shall not be responsible for the treatment, handling, removal or disposal
of same, nor shall Landlord incur any liability to Tenant or any other parties,
or any governmental agency or division thereof, relating to same. Tenant hereby
agrees to indemnify, defend and hold Landlord and Landlord's Agent harmless
with respect to any suits, debts, expenses, liabilities, alleged violations or
non-compliance with any federal, state or local law or regulation, and any other
demands of any nature whatsoever, for any violation by Tenant of the provisions
of this Section 6.13 and for any harm to others caused or alleged to have been
caused by Tenant's medical waste.
7. ACCESS
7.1 LANDLORD'S ACCESS. Landlord, Landlord's Agent, and their agents and
employees, shall have the right to enter the Demised Premises at all reasonable
times (a) to make inspections or to make such repairs and maintenance to the
Demised Premises or repairs and maintenance to other premises as Landlord may
deem necessary; (b) to exhibit the Demised Premises to prospective tenants
during the last six (6) months of the Lease Term; and (c) for any purpose
whatsoever relating to the safety, protection or preservation of the persons or
property of the other tenants, the public, the Demised Premises, the Building,
the Complex or other surrounding properties.
7.2 RESTRICTED ACCESS. No additional locks, other devices or systems which
would restrict access to the Demised Premises shall be placed upon any doors
without the prior consent of Landlord. Landlord's consent to installation of
anti-crime warning devices or security systems shall not be unreasonably
withheld; provided Landlord shall not be required to give such consent unless
Tenant provides Landlord with a means of access to the Demised Premises for the
purposes outlined in Section 7.1 above. Unless access to the Demised Premises is
provided during the hours when cleaning service is normally rendered, Landlord
shall not be responsible for providing such service to the Demised Premises or
to those portions thereof which are inaccessible during said hours. Such
inability by Landlord to provide cleaning services to inaccessible areas shall
not entitle Tenant to any adjustment in Base Annual Rent, Additional Rent or
other sums due hereunder.
7.3 TENANT'S ACCESS. Subject to the provisions of Sections 5.2 and 5.5,
Tenant, its employees and agents shall have access to the Demised Premises
twenty-four (24) hours per day, 365 days per year, and, for the purpose of
access to the Demised Premises only, shall have the right in common with all
other tenants, Landlord and Landlord's agents and employees to use public
corridors, elevators and lobbies. Landlord may at any time and from time to time
during the Lease Term exclude and restrain any person from access, use or
occupancy of any or all mechanical and auxiliary spaces, roofs, public
corridors, elevators and lobbies, excepting, however, Tenant and other tenants
of Landlord and bona fide invitees of either who make use of said public
facilities in accordance with the rules and regulations established by Landlord
from time to time with respect thereto. Landlord may at any time and from time
to time close all or any portion of said public facilities to make repairs or
changes, to prevent a dedication to any person or the public, and to do and
perform such other acts in and to said public facilities as in the exercise of
good business judgment Landlord shall determine to be advisable. It shall be the
duty of Tenant to keep all of said public facilities free and clear of any
obstructions created or permitted by Tenant or resulting from Tenant's
operation. In order to protect the integrity of telephone service in the
Building, Landlord may, at its option, supervise or restrict Tenant's access to
any or all equipment rooms, inside wire space and/or conduits or the
demarcation point.
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8. LIABILITY
8.1 TENANT'S PROPERTY. All of Tenant's Property, the Leasehold Improvements
and the personal property of Tenant's employees, agents, contractors, visitors
and invitees in the Demised Premises or in the Building shall be at their sole
risk. Landlord, Landlord's Agent, and their respective agents and employees
shall not be liable for any damage to Tenant's Property, the Leasehold
Improvements or the property of Tenant's employees, agents, contractors,
visitors and invitees resulting from acts or omissions of any third party,
including, but not limited to, cleaning, maintenance, repair and other
contractors who do work in the Building or the Demised Premises or render
services to Landlord, Landlord's Agent, and their respective agents and
employees or other tenants. Tenant hereby expressly releases Landlord,
Landlord's Agent and their respective agents and employees from any liability
incurred or claimed by reason of damage to Tenant's Property and the Leasehold
Improvements and hereby indemnifies and holds Landlord, Landlord's Agent and
their respective agents and employees from any liability or claims by reason of
damage to the property of Tenant's employees, agents, contractors, visitors and
invitees.
8.2 CRIMINAL ACTS OF THIRD PARTIES. Landlord, Landlord's Agent and their
respective agents and employees shall not be liable in any manner to Tenant, its
agents, employees, invitees or visitors for any injury or damage to Tenant,
Tenant's agents, employees, invitees or visitors, or their property, caused by
the criminal or intentional misconduct of third parties or of Tenant, Tenant's
employees, agents, invitees or visitors on or about the Demised Premises,
Building and/or Complex (including any parking garages and parking areas). All
claims against Landlord, Landlord's Agent and their respective agents and
employees for any such damage or injury are hereby expressly waived by Tenant,
and Tenant hereby agrees to hold harmless, defend and indemnify Landlord,
Landlord's Agent and their respective agents and employees from all such claims
and/or damages and the expenses of defending all claims made by Tenant's
employees, agents, invitees, or visitors arising out of such acts.
8.3 PUBLIC LIABILITY. Landlord, Landlord's Agent and their respective
agents and employees assume no liability or responsibility whatsoever with
respect to the conduct and operation of the business to be conducted upon the
Demised Premises. Landlord, Landlord's Agent and their respective agents and
employees shall not be liable for any accident or injury to any person or
persons or property in or about the Demised Premises which are caused by the
conduct and operation of said business or by virtue of equipment or property of
Tenant in said Demised Premises. Tenant agrees to hold Landlord, Landlord's
Agent and their respective agents and employees harmless against all such
claims, and indemnify and defend Landlord, Landlord's Agent and their respective
agents and employees from all injuries and damages and the expenses of defending
such claims.
8.4 CONSTRUCTION ON CONTIGUOUS PROPERTY. Landlord, Landlord's Agent and
their respective agents and employees shall not be liable for damages, nor shall
this Lease or any Base Annual Rent, Additional Rent or other sums due hereunder
be affected, for conditions arising or resulting from construction within or
around the Demised Premises or Building or Complex or on contiguous or
neighboring properties and which affect the Complex, the Building and/or the
Demised Premises.
8.5 TENANT INSURANCE.
(a) Liability Insurance. During the Lease Term, Tenant at its sole
cost shall maintain public liability and property damage insurance which
includes coverage for personal injury and death, property damage, advertising
injury, completed operations and products coverage, and shall further maintain
comprehensive automobile liability insurance covering automobiles owned by
Tenant, with at least a single combined liability and property damage limit of
$1,000,000.00 insuring against all liability of Tenant and its authorized
representatives arising out of or in connection with Tenant's use or occupancy
of the Demised Premises and the business conducted therein. Landlord and
Landlord's Agent shall be named as additional insureds. All public liability
insurance and property damage insurance shall insure Landlord and Landlord's
Agent with coverage no less in scope than that necessary to meet Tenant's
obligations outlined in the indemnity provisions set forth in Sections 8.1, 8.2
and 8.3 and elsewhere in this Lease. The policy shall contain an assumed
contractual liability endorsement that refers expressly to this Lease.
(b) Fire and Casualty Insurance. During the Lease Term, Tenant at its
cost shall maintain fire and extended coverage insurance on all special or above
building standard work (as defined in Exhibit B, if applicable), all alterations
and all other contents of the Demised Premises, including any Leasehold
Improvements and Tenant's Property, in an amount sufficient so that no
coinsurance penalty will be applied in case of loss.
(c) Increases in Coverage. Tenant shall increase its insurance
coverage as required if in the reasonable opinion of the mortgagee on the
Building, Landlord or Landlord's insurance agent such insurance coverage at that
time is not adequate.
(d) Policy Requirements. All insurance required under this Lease shall
be issued by insurance companies authorized to do business in the jurisdiction
where the Building is located. Such companies shall have a policyholder rating
of at least "A" and be assigned a financial size category of at least "Class X"
as rated in the most recent edition of "Best's Key Rating Guide" for insurance
companies. If at any time during the Lease Term the rating of any of Tenant's
insurance carriers is reduced below the rating required pursuant to the terms
hereof, Tenant shall promptly replace the insurance coverage(s) maintained with
such carrier with coverage(s) from a carrier whose rating complies with the
foregoing requirements. If the Best's Key Rating Guide is discontinued or
revised without substitution of a comparable rating system, Landlord shall
reasonably determine its satisfaction with the insurance company issuing
Tenant's policies. Each policy shall contain an endorsement requiring thirty
(30) days written notice from the insurance company to Landlord before
cancellation or any change decreasing coverage, scope or amount of such policy
and an endorsement naming Landlord and Landlord's Agent as additional insureds.
Each policy, or a certified copy of the policy, and a certificate showing it is
in effect, together with evidence of payment of premiums, shall be deposited
with Landlord at the commencement of the Lease Term and thereafter upon any
policy changes or substitutions, and renewal certificates and copies of renewal
policies shall be delivered to Landlord at least thirty (30) days prior to the
expiration date of any policy.
(e) No Limitation of Liability. Notwithstanding the fact that any
liability of Tenant to Landlord may be covered by Tenant's insurance, Tenant's
liability shall in no way be limited by the amount of its insurance recovery or
the amount of insurance in force or required by any provisions of this Lease.
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(f) Waiver of Subrogation. Notwithstanding anything to the
contrary contained herein, Landlord and Tenant hereby mutually waive and release
their respective rights of recovery against each other for any loss of its
property (in excess of a reasonable deductible amount) capable of being insured
against by fire and extended coverage insurance or any insurance policy
providing property damage coverage, whether carried or not. Each party shall
apply to its insurer to obtain said waiver and obtain any special endorsement,
if required by its insurer to evidence compliance with the aforementioned
waiver, and shall bear the cost therefor.
(g) Business Interruption. Landlord, Landlord's Agent and their
respective agents and employees shall have no liability or responsibility for
any loss, cost, damage or expense arising out of or due to any interruption of
business (regardless of the cause therefor), increased or additional cost of
operation of business or other costs or expenses, whether similar or dissimilar,
which are capable of being insured against under business interruption
insurance, whether or not carried by Tenant.
8.6 INCIDENT REPORTS. Tenant shall promptly report to Landlord's Agent
all accidents and incidents occurring on or about the Demised Premises, the
Building and/or the Complex which involve or relate to the security and safety
of persons and/or property.
9. DAMAGE
9.1 DAMAGES CAUSED BY TENANT. Subject to the provisions of Sections
8.5(f) and 9.2, in the event of damage to the Demised Premises or other portions
of the Building caused by the acts or omissions of Tenant, its agents,
employees, invitees or visitors, the Landlord may, but shall not be obligated
to, repair such damage at the expense of Tenant, or, at Landlord's option, such
damages shall be repaired by Tenant, at Tenant's expense, with Landlord's
approval in accordance with Section 6.4. At Landlord's option, Tenant shall
either (a) pay to Landlord the estimated cost of such repairs and/or maintenance
within ten (10) days of Tenant's receipt of Landlord's estimate, or (b) upon
completion of such repairs and/or maintenance by Landlord, pay to Landlord the
actual cost of such repairs and/or maintenance (or the difference between the
actual cost and the estimated costs previously paid by Tenant) within ten (10)
days of receipt of invoice from Landlord. Landlord's recovery shall not be
limited to the diminution in the value of the Demised Premises or leasehold
notwithstanding that such repairs and maintenance may occur prior to the
expiration of the Lease Term. All such costs shall be deemed Additional Rent.
This provision shall be construed as an additional remedy granted to Landlord
and not in limitation of any other rights and remedies which Landlord has or may
have in said circumstances.
9.2 FIRE OR CASUALTY DAMAGE. In the event of damage or destruction of
the Demised Premises or a portion thereof by fire or any other casualty not due
to the acts or omissions of Tenant, its agents, employees, invitees or visitors,
then, except as otherwise provided in Section 9.3, this Lease shall not be
terminated, but structural damage to the Demised Premises, including demising
partitions and doors, shall be promptly and fully repaired and restored as the
case may be by Landlord at its own cost and expense. Due allowance, however,
shall be given for reasonable time required for adjustment and settlement of
insurance claims, and for such other delays as may result from government
restrictions, and controls on construction, if any, and for strikes, national
emergencies and other conditions beyond the control of Landlord. Restoration by
Landlord shall not include replacement of Tenant's Property or that portion of
the Leasehold Improvements provided by Landlord as of the Commencement Date
above the building standard items as of the Commencement Date. If the items
which Landlord provides as building standard items have changed since the
Commencement Date, then, at Landlord's election, such restoration shall not
include restoration of Leasehold Improvements in excess of those provided by
Landlord as building standard as of the date of such restoration. Tenant shall,
at its expense, repair, restore and replace Tenant's Property and all elements
of the Demised Premises excluded from the scope of Landlord's duty to restore
pursuant to this Section 9.2. Tenant's restoration, replacement and repair work
shall comply with Section 6 hereof and Tenant shall maintain adequate insurance
on all such replacements, restoration and property pursuant to Section 8.5. In
the event of fire or casualty damage to the Demised Premises caused by the
fault, act or omission or neglect of Tenant, its agents, employees, invitees or
visitors, Landlord may, but shall not be obligated to, restore all or any
portion of the damage described herein (which may or may not include the Demised
Premises). It is agreed that in any of the aforesaid events, this Lease shall
continue in full force and effect.
9.3 UNTENANTABILITY.
(a) Restoration Requirements.
(i) If the condition referred to in Section 9.2 is such that
the Demised Premises are partially damaged or destroyed and provided that the
condition was not due to the acts or omissions of Tenant, its agents, employees,
invitees or visitors, then during the period that Tenant is deprived of the use
of the damaged portion of the Demised Premises, Tenant shall be required to pay
Base Annual Rent and Additional Rent covering only that part of the Demised
Premises that Tenant is able to occupy, based on the ratio between the square
foot area remaining that can be occupied and the total square foot area of the
entire Demised Premises covered by this Lease. Any unpaid or prepaid installment
of Base Annual Rent and Additional Rent for the month in which the condition
referred to in Section 9.2 occurs shall be prorated.
(ii) (1) If the condition referred to in Section 9.2 is such
so as to make the entire Demised Premises untenantable and provided that the
condition was not due to the acts or omissions of Tenant, its agents, employees,
invitees or visitors, then, subject to the rights set forth in Section
9.3(a)(ii)(2) below, the installment(s) of Base Annual Rent and Additional Rent
which Tenant is obligated to pay hereunder shall xxxxx as of the date of the
occurrence until the restoration of the Demised Premises has been substantially
completed by Landlord to the extent of Landlord's obligations as described in
Section 9.2. Any unpaid or prepaid installment of Base Annual Rent and
Additional Rent for the month in which the condition referred to in Section 9.2
occurs shall be prorated.
(2) In the event (x) the Demised Premises are
substantially or totally destroyed by fire or other casualty so as to be
entirely untenantable, (y) a substantial portion of the Building is destroyed or
damaged to such an extent that, in the sole judgment of Landlord, the Building
cannot be operated as a functional unit or an economically viable unit, or (z)
the damage to the Demised Premises and/or the Building is due to an uninsured
risk or insurance proceeds are otherwise unavailable to cover the expenses of
restoration or repair of the damage (less any applicable deductible), then
Landlord shall have the unconditional right to cancel this Lease in its sole
discretion, in which case Base Annual Rent and Additional Rent shall be
apportioned and paid to the date of said fire or other casualty. If Landlord
elects not to cancel this Lease, then Landlord shall determine and notify Tenant
in writing, within sixty (60) days following the fire or other casualty, of the
date by which the Demised Premises can be restored by Landlord in accordance
with the provisions of Section 9.2. If the date determined by Landlord as
aforesaid for completion of restoration of the Demised Premises is more than one
hundred twenty (120) days after such fire or other casualty, then Tenant shall
have the right, to be exercised by giving written notice to Landlord within ten
(10) days following receipt of such notice from Landlord, to cancel and
terminate this Lease.
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In the event the date by which Landlord determines it can complete restoration
of the Demised Premises as herein provided is less than 120 days following such
fire or other casualty, or Tenant fails to terminate this Lease as herein
provided following notification from Landlord that completion of restoration
will require more than 120 days, then this Lease shall remain in full force and
effect and Landlord shall commence restoration of the Demised Premises to the
extent of Landlord's obligations as described in Section 9.2. Due allowance,
however, shall be given for reasonable time required for adjustment and
settlement of insurance claims, for Landlord to reasonably be able to determine
the time necessary for completion of the restoration and for other such delays
as may result from government restrictions, and controls on construction, if
any, and for strikes, national emergencies and other conditions beyond the
control of Landlord. Any delays as a result of the foregoing shall operate to
postpone Landlord's obligation to complete restoration of the Demised Premises
by one day for each day of any such delay. Tenant shall commence any restoration
to be performed by Tenant as required in Section 9.2 and Tenant shall reoccupy
the Demised Premises when restored.
(iii) Except as expressly provided in this Section 9.3, no
compensation, or claim, or diminution of Base Annual Rent or Additional Rent
will be allowed or paid by Landlord, by reason of inconvenience, annoyance, or
injury to business, arising from any fire or other casualty suffered by Tenant
or the necessity of repairing or restoring the Demised Premises or any portion
of the Building.
(b) Casualty Near Expiration of Lease Term. In addition to any other
right of Landlord or Tenant to terminate this Lease pursuant to the provisions
of this Section 9, in the event the Demised Premises are damaged in whole or in
part by fire or other casualty during the last twelve (12) months of the Lease
Term, then Landlord or Tenant, upon ten (10) days prior written notice to the
other given within sixty (60) days of the date of the fire or casualty, may
terminate this Lease, in which case the Base Annual Rent and Additional Rent
shall be apportioned and paid to the date of said fire or other casualty;
provided, however, Tenant shall have no right to terminate this Lease hereunder
if prior to receipt of Tenant's notice Landlord has commenced to repair or
restore the Demised Premises.
10. CONDEMNATION
10.1 LANDLORD'S RIGHT TO AWARD. Tenant agrees that if any of the
Demised Premises or the Building shall be taken or condemned for public or
quasi-public use or purpose by any competent authority, Tenant shall have no
claim against Landlord and shall not have any claim or right to any portion of
the amount that may be awarded as damages or paid as a result of any such
condemnation. All rights of Tenant to damages therefor, if any, are hereby
assigned by Tenant to Landlord. Upon such condemnation or taking, the Lease Term
shall cease and terminate from the date of such governmental taking or
condemnation. If (a) the whole or a substantial part of the Demised Premises or
the Building is taken or condemned or if (b) less than a substantial portion of
the Building or the Demised Premises is taken or condemned and the remainder of
either in Landlord's opinion can not be operated as a functional unit or as an
economically viable unit, Landlord shall notify Tenant of the termination of
this Lease effective as of the date of such governmental taking or condemnation.
In the event of any termination of this Lease by reason of any taking or
condemnation, Tenant shall have no claim against Landlord or Landlord's Agent
for the value of any unexpired portion of the Lease Term. If less than a
substantial part of the Demised Premises or of the Building is taken or
condemned by any governmental authority for public or quasi-public use or
purpose and the remainder of both in Landlord's opinion can be operated as a
functional unit or as an economically viable unit, the rent shall be equitably
adjusted on the date when title vests in such governmental authority and the
Lease shall otherwise continue in full force and effect. For the purposes of
this Section 10, a substantial part of the Demised Premises shall be considered
to have been taken if more than fifty percent (50%) of the Demised Premises are
unusable by Tenant.
10.2 TENANT'S RIGHT TO FILE CLAIM. Nothing in Section 10.1 shall
preclude Tenant from filing a separate claim against the condemning authority
for the value of its Leasehold Improvements not then depreciated (excluding
those Leasehold Improvements paid for by Landlord) and relocation expenses,
provided that any award to Tenant will not result in a diminution of any award
to Landlord.
11. BANKRUPTCY
11.1 EVENTS OF BANKRUPTCY The following shall be Events of Bankruptcy
under this Lease:
(a) Tenant's becoming insolvent, as that term is defined in Title
11 of the United States Code, entitled Bankruptcy, 11 U.S.C. Sec. 101 et seq.
(the "Bankruptcy Code"), or under the insolvency laws of any State, District,
Commonwealth or Territory of the United States ("Insolvency Laws");
(b) The appointment of a receiver or custodian for any or all of
Tenant's Property or assets, or the institution of a foreclosure action upon any
of Tenant's real or personal property;
(c) The filing of a voluntary petition under the provisions of the
Bankruptcy Code or Insolvency Laws;
(d) The filing of an involuntary petition against Tenant as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which is either not
dismissed within sixty (60) days of filing, or results in the issuance of an
order for relief against the debtor, whichever is earlier; or
(e) Tenant's making or consenting to an assignment for the benefit
of creditors or a common law composition of creditors.
11.2 LANDLORD'S REMEDIES.
(a) Termination of Lease. Upon occurrence of an Event of
Bankruptcy, Landlord shall have the right to terminate this Lease by giving
written notice to Tenant; provided, however, that this right to terminate shall
have no effect while a case in which Tenant is the subject debtor under the
Bankruptcy Code is pending, unless Tenant or its Trustee is unable to comply
with the provisions of Sections 11.2(d) and (e) below. At all other times this
Lease shall automatically cease and terminate, and Tenant shall be immediately
obligated to quit the Demised Premises upon the giving of notice pursuant to
this Section 11.2(a). Any other notice to quit, or notice of Landlord's
intention to re-enter is hereby expressly waived. If Landlord elects to
terminate this Lease, everything contained in this Lease on the part of Landlord
to be done and performed shall cease without prejudice, subject, however, to the
rights of Landlord to recover from Tenant all Base Annual Rent and Additional
Rent and any other sums accrued up to the time of termination or recovery of
possession by Landlord, whichever is later, and any other monetary damages
sustained by Landlord.
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(b) Suit for Possession. Upon termination of this Lease pursuant to
Section 11.2(a), Landlord may proceed to recover possession of the Demised
Premises under and by virtue of the provisions of the laws of any applicable
jurisdiction, or by such other proceedings, including reentry and possession, as
may be applicable, or by direct order from any Court having jurisdiction over
Tenant/Debtor, including any Bankruptcy Court.
(c) Non-Exclusive Remedies. Without regard to any action by Landlord
as authorized by Sections 11.2(a) and (b) above, Landlord may at its discretion
exercise all the additional provisions set forth below in Section 12.
(d) Assumption or Assignment by Trustee. In the event Tenant becomes
the subject debtor in a case pending under the Bankruptcy Code, Landlord's right
to terminate this Lease pursuant to Section 11.2(a) shall be subject to the
rights of the Trustee in Bankruptcy to assume or assign this Lease. In addition
to all other objections Landlord may raise to assumption and/or assignment, and
in addition to all other requirements of any Bankruptcy Court and the Bankruptcy
Code, the Trustee shall not have the right to assume or assign this Lease unless
the Trustee (i) has timely performed all Lease obligations of the Tenant/Debtor
arising from and after the filing of any voluntary bankruptcy petition by Tenant
or, in the case of an involuntary petition, the date of entry of the Order for
Relief, (ii) promptly cures all defaults under this Lease, (iii) promptly
compensates Landlord for monetary damages incurred as a result of such default,
and (iv) provides adequate assurance of future performance on the part of Tenant
or on the part of the assignee of Tenant or the Trustee.
(e) Adequate Assurance of Future Performance. Landlord and Tenant
hereby agree in advance that adequate assurance of future performance, as that
term is used in Section 11.2(d) above, shall mean that all of the following
minimum criteria must be met: (i) Tenant's gross revenues in the ordinary course
of business during the thirty (30) day period immediately preceding the
initiation of the case under the Bankruptcy Code must be at least two (2) times
greater than the next installment of Base Annual Rent and Additional Rent due
under this Lease; (ii) both the average and median of Tenant's gross revenues in
the ordinary course of business during the six (6) month period immediately
preceding the initiation of the case under the Bankruptcy Code must be at least
two (2) times greater than the next six (6) installments of Base Annual Rent and
Additional Rent due under this Lease; (iii) Tenant must pay (and continue to pay
on a timely basis throughout the Lease Term) Base Annual Rent, Additional Rent
and all other sums payable by Tenant hereunder in advance and as a condition
precedent to the performance of Landlord's obligations hereunder; (iv) the
Trustee must agree that Tenant's business shall be conducted in a first class
manner, and that no liquidating sales, auctions, or other non-first class
business operations shall be conducted on or about the Demised Premises,
Building and/or Complex; (v) the Trustee must agree that the use of the Demised
Premises as stated in this Lease will remain unchanged and that no prohibited
use shall be permitted; and (vi) the Trustee must agree that the assumption or
assignment of this Lease will not violate or affect the rights of other tenants
in the Building and/or Complex.
(f) Failure to Provide Adequate Assurance. In the event the Trustee or
Tenant is unable to (i) comply with the requirements of Section 11.2(d) above,
or (ii) meet the criteria and obligations imposed by Section 11.2(e) above,
Tenant agrees in advance that it has not met its burden to provide adequate
assurance of future performance, and this Lease may be terminated by Landlord in
accordance with Section 11.2(a) above.
11.3 GUARANTORS. For purposes of this Section 11, any action or
adjudication by or on behalf of, or against, or with respect to the property or
affairs of, any guarantor or guarantors (if any) of this Lease, or any of them,
which, if taken by, against or with respect to Tenant, Tenant's Property or
affairs, would entitle Landlord to exercise any remedy specified herein, may be
treated, at Landlord's sole option and discretion, as though it were taken by,
against or with respect to the Tenant.
11.4 DAMAGES. In the event of cancellation and termination of this Lease
pursuant to Section 11.2 above, Landlord shall, notwithstanding any other
provisions of this Lease to the contrary, be entitled to promptly recover
damages from Tenant determined in accordance with the provisions set forth in
Section 12.2 of this Lease as provided for in the case of default by Tenant.
12. DEFAULTS AND REMEDIES
12.1 DEFAULT. If any one or more of the following events occur, said event
shall be deemed a material default of this Lease:
(a) Tenant's failure to complete, within the time periods required by
this Lease, any tasks required for the preparation or approval of plans for the
construction and/or completion of the Demised Premises prior to the Commencement
Date;
(b) Tenant's failure to accept possession of the Demised Premises when
tendered by Landlord;
(c) Tenant's failure to pay any installment of Base Annual Rent,
Additional Rent or other sum required to be paid by Tenant when the same shall
be due and payable, all without demand unless demand is necessary under the
express terms of this Lease (in which case a material default shall be deemed to
occur if such payment is not made strictly within the time period provided for
such payment following the demand);
(d) Tenant's failure to perform or observe any other term, covenant or
condition of this Lease;
(e) Any event expressly designated or deemed a default elsewhere in
this Lease;
(f) Any execution, levy, attachment or other legal process of law
shall occur upon Tenant's Property, Tenant's interest in this Lease or the
Demised Premises;
(g) Tenant's abandonment or surrender of the Demised Premises prior to
the expiration of the Lease Term and the suspension of rent payments as the same
may become due and payable; and/or
(h) Tenant's committing or permitting waste to occur to the Demised
Premises.
12.2 REMEDIES. In each and every such event set forth in Section 12.1
above, from the date of such default and at all times thereafter, at the option
of Landlord, Tenant's right of possession shall thereupon cease and terminate.
Landlord shall be entitled to all rights and remedies now or later allowed at
law or in equity, all of which shall be cumulative to the extent that the
exercise of any one or more rights or remedies shall not be deemed to constitute
a waiver of the Landlord's right to exercise any one or more other
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rights and remedies herein provided or provided at law or in equity. Landlord
shall be entitled to obtain possession of the Demised Premises whether or not
Landlord elects to terminate this Lease, and to re-enter the same without
demand of rent or demand of possession of the Demised Premises and may forthwith
proceed to recover possession of the Demised Premises by any lawful means or
process of law whether or not Landlord elects to terminate this Lease, any
notice to quit being hereby expressly waived by Tenant. In the event of such
re-entry by process of law or otherwise, Tenant nevertheless agrees to remain
liable for all Base Annual Rent, Additional Rent and other sums due under this
Lease, and shall pay the same as and when it accrues and is payable hereunder.
Landlord may (but shall not be obligated to) declare the entire balance (or any
portion thereof) of Base Annual Rent, Additional Rent and all other sums payable
by Tenant hereunder for the remainder of the Lease Term to be immediately due
and payable in full, which shall be recoverable pursuant to Section 12.4 below.
Tenant further agrees to remain liable for any and all damage, deficiency, and
loss of Base Annual Rent, Additional Rent and other sums herein specified, and
all other damages which Landlord may sustain by such re-entry, including
reasonable attorneys' fees and costs. If under the provisions hereof, a seven
(7) days summons or other applicable summary process shall be served, and a
compromise or settlement thereof shall be made, such action shall not constitute
a waiver of any breach of any covenant, term, condition or agreement herein
contained.
12.3 LANDLORD'S RIGHT TO RELET. Should this Lease be terminated before the
expiration of the Lease Term, by reason of Tenant's default as provided in
Sections 11 or 12, or if Tenant shall abandon the Demised Premises before the
expiration or termination of the Lease Term and without paying the rent due as
the same may become due and payable (whether or not Landlord elects to terminate
this Lease), the Demised Premises may be relet by Landlord, on Tenant's behalf
or for the account of Landlord, as Landlord so chooses, for such rent and upon
such terms as are reasonable under the circumstances. If the full rent reserved
under this Lease (and any of the costs, expenses or damages indicated below)
shall not be realized by Landlord, Tenant shall be liable for all damages
sustained by Landlord, including, without limitation, deficiency in Base Annual
Rent, Additional Rent, unamortized Landlord Concessions (hereinafter defined),
reasonable attorneys' fees, other collection costs, brokerage fees, expenses
incurred by Landlord to remove Tenant's Property and (at Landlord's option)
Leasehold Improvements, and expenses of placing the Demised Premises in
first-class rentable condition. Landlord, in putting the Demised Premises in
good order or preparing the same for reletting may, at Landlord's option, make
such alterations, repairs or replacements in or relating to the Demised Premises
as Landlord, in Landlord's sole judgment, considers advisable and necessary for
the purpose of reletting the Demised Premises, and the making of such
alterations, repairs or replacements shall not operate or be construed to
release Tenant from liability hereunder as aforesaid. Landlord shall in no event
be charged with any obligation to mitigate its damages nor shall Landlord be
liable in any way whatsoever for failure to relet the Demised Premises, or in
the event that the Demised Premises are relet, for failure to collect the rent
thereof under such reletting. For the purpose of calculating Landlord's damages
as set forth in Section 12.4 below, if the Building has other available space at
the time of such Lease termination or Tenant's abandonment or vacating of the
Demised Premises, or anytime thereafter, the Demised Premises shall be deemed
the last space rented in the Building even though the Demised Premises may be
re-rented by Landlord prior to such other vacant space. In no event shall Tenant
be entitled to receive any excess, if any, of rent (if any) collected over the
sums payable by Tenant to Landlord hereunder.
12.4 RECOVERY OF DAMAGES.
(a) Quantification of Damages. Any damage, deficiency, loss of Base
Annual Rent, Additional Rent or other sums payable by Tenant hereunder,
unamortized Landlord Concessions as described hereinafter, and all other damages
may be recovered by Landlord, at Landlord's option, upon default by Tenant, in
separate actions, from time to time, as said damage shall have periodically
accrued, or, at Landlord's option, may be deferred until the expiration of the
Lease Term (in which event Tenant hereby agrees that the cause of action shall
not be deemed to have accrued until the date of expiration of said Lease Term),
or, at Landlord's option, in a single action in the event Landlord shall have
declared the entire balance of Base Annual Rent, Additional Rent and other sums
due under this Lease immediately due and payable pursuant to Section 12.2. In
the event Landlord shall have declared the entire balance of Base Annual Rent,
Additional Rent and other sums due under this Lease immediately due and payable,
then in lieu of the Base Annual Rent and Additional Rent which would have been
payable for the period after the date of any judgment obtained in any action by
Landlord against Tenant to recover damages, Tenant shall pay a sum representing
liquidated damages, and not penalty, in an amount equal to the excess of (i) the
sum of the Base Annual Rent and Additional Rent provided for in this Lease for
the unexpired portion of the Lease Term after the date of judgment discounted at
a rate of three percent (3%) per annum to present value, over (ii) the rental
value of the Leased Premises, at the time of termination of this Lease, for the
unexpired portion of the Lease Term, discounted at a rate of three percent (3%)
per annum to present value. In determining the rental value of the Leased
Premises, the rent realized by any reletting accomplished or accepted by
Landlord within a reasonable time after termination of this Lease, shall be
deemed, prima facie, to be the rental value. In addition to all of the rights of
the Landlord to recover damages herein provided, Tenant shall immediately
reimburse Landlord for, and Landlord may recover, the unamortized portion of all
contributions and other concessions (hereinafter "Landlord Concessions"), if
any, provided by Landlord to Tenant as an inducement to enter into this Lease
and any amendment, modification or extension hereof and/or pursuant to the terms
of this Lease or any amendment, modification or extension hereof, including, but
not limited to, (i) any abatements or waivers of Base Annual Rent, Additional
Rent or other sums due under this Lease, (ii) costs incurred by Landlord in
making the Demised Premises ready for Tenant's occupancy, including the cost of
the Construction Improvements, any monetary contribution by Landlord for any
Leasehold Improvements and any other contributions by Landlord with respect to
any construction within or relating to the Demised Premises, (iii) moving
expenses, (iv) brokerage fees, (v) allowances for telephone and computer systems
and other office equipment and supplies, (vi) design, architectural and
engineering fees and expenses, and (vii) any other direct or indirect expenses
incurred by Landlord in conjunction with obtaining and/or entering into this
Lease and any amendment, modification and extension hereof, and placing and/or
retaining Tenant in possession of the Demised Premises. For purposes hereof, the
amount of any Landlord Concessions provided in connection with the initial Lease
Term shall be deemed to be amortized (using a straight-line method) on a monthly
basis over the initial Lease Term (excluding any extension or renewal terms) in
which Tenant is required to pay all or any portion of any installment of Base
Annual Rent under the terms of this Lease. The amount of any Landlord
Concessions provided in connection with any amendment or modification of this
Lease during the initial Lease Term shall be deemed to be amortized (using a
straight-line method) on a monthly basis over the remaining months in the
initial Lease Term (excluding any extension or renewal terms) in which Tenant is
required to pay all or any portion of any installment of Base Annual Rent under
the terms of this Lease. The amount of any Landlord Concessions provided in
connection with any renewal or extension of the Lease Term shall be deemed to be
amortized (using a straight-line method) on a monthly basis over the months in
the extension period (excluding any subsequent extension or renewal terms) in
which Tenant is required to pay all or any portion of any installment of Base
Annual Rent under the terms of said extension or renewal of the Lease Term.
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(b) Non-Exclusive Rights. The provisions contained in this Section
12.4 shall be in addition to and shall not prevent the enforcement of any claim
Landlord may have against Tenant for anticipatory breach of the unexpired Lease
Term. All rights and remedies of Landlord under this Lease shall be cumulative
and shall not be exclusive of any other rights and remedies provided to Landlord
under applicable law. In the event Tenant becomes the subject debtor in a case
under the Bankruptcy Code, the provisions of this Section 12.4 may be limited by
the limitations of damage provisions of the Bankruptcy Code.
12.5 WAIVER. If under the provisions hereof Landlord shall institute
proceedings and a compromise or settlement thereof shall be made, the same shall
not constitute a waiver of any agreement, covenant, condition, rule or
regulation herein contained nor of any of Landlord's rights hereunder. No waiver
by Landlord of any breach of any agreement, covenant, condition, rule or
regulation herein contained, on one or more occasions, shall operate as a waiver
of such agreement, covenant, condition, rule or regulation itself, or of any
subsequent breach thereof. No provision of this Lease shall be deemed to have
been waived by Landlord unless such waiver shall be in writing signed by
Landlord. Receipt and acceptance by Landlord of any Base Annual Rent, Additional
Rent or other charges, or the performance of any obligation by Tenant hereunder,
with knowledge of the breach of any agreement, covenant, condition, rule or
regulation of this Lease by Tenant shall not be deemed a waiver of such breach.
Failure of Landlord to enforce any of the rules and regulations against Tenant
or any other tenant in the Building or Complex shall not be deemed a waiver of
any such rule or regulation. No payment by Tenant or receipt by Landlord of a
lesser amount than the Base Annual Rent and Additional Rent herein stipulated
shall be binding upon Landlord, nor shall the same be deemed to be other than on
account of the stipulated Base Annual Rent and Additional Rent. No endorsement
or statement on any check, letter or other transmittal accompanying any check or
payment of Base Annual Rent, Additional Rent or other sum due from Tenant shall
be deemed a settlement of a legal dispute or an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such Base Annual Rent, Additional Rent and other sums
or to pursue any other remedy provided in this Lease. Landlord's consent to, or
approval of, any act by Tenant requiring Landlord's consent or approval shall
not be deemed to waive or render unnecessary Landlord's consent to or approval
of any subsequent act by Tenant.
12.6 ANTICIPATORY REPUDIATION.
(a) Repudiation Prior to Commencement Date. If, prior to the
Commencement Date or the first day of any extension or renewal period set forth
in an extension or renewal option validly exercised by Tenant hereunder, Tenant
notifies Landlord of or otherwise unequivocally demonstrates an intention to
repudiate this Lease or breach any obligation of Tenant hereunder, Landlord may,
at its option, consider such anticipatory repudiation a breach and material
default of this Lease. In addition to any other remedies available to it
hereunder or at law or in equity, Landlord may retain all Base Annual Rent,
Additional Rent and other sums paid by Tenant hereunder, including any security
deposit, if any, to be applied to damages of Landlord incurred as a result of
such repudiation, including, without limitation, all damages and remedies
reserved to Landlord in this Section 12 or elsewhere in this Lease, as
applicable. It is agreed between the parties that for the purpose of calculating
Landlord's damages, if the Building has other available space at the time of or
subsequent to Tenant's breach, the Demised Premises covered by this Lease shall
be deemed the last space rented in the Building even though the Demised Premises
may be re-rented prior to such other vacant space. In the event a default occurs
prior to the Commencement Date, Tenant shall, in addition to all other damages
to which Landlord is entitled under this Lease, pay in full for all Leasehold
Improvements constructed or installed within the Demised Premises through the
date of the default, and for material ordered at Tenant's request for the
Demised Premises (whether at Tenant's request or upon Landlord's anticipation of
Tenant's needs hereunder) or for such material restocking charges.
(b) Repudiation of Any Obligation of Tenant During Lease Term. If
during the Lease Term Tenant notifies Landlord of or otherwise unequivocally
demonstrates an intention to repudiate this Lease or breach any obligation of
Tenant hereunder, Landlord may, at its option, consider such anticipatory
repudiation a breach and material default of this Lease. In addition to any
other remedies available to it hereunder or at law or in equity, Landlord may
retain all Base Annual Rent, Additional Rent and other sums paid by Tenant
hereunder, including any security deposit, if any, to be applied to damages of
Landlord incurred as a result of such repudiation, including, without
limitation, all damages and remedies reserved to Landlord in this Section 12 or
elsewhere in this Lease, as applicable.
12.7 TENANT ABANDONMENT OF DEMISED PREMISES.
(a) Abandonment. If the Demised Premises or a substantial portion
thereof shall be deserted or vacated by Tenant for thirty (30) consecutive days
or more and Tenant shall be delinquent in the payment of any Base Annual Rent,
Additional Rent or other sums due under this Lease, or in the performance of any
of Tenant's other obligations hereunder, Landlord may deem the Tenant to have
abandoned the Demised Premises, notwithstanding the fact that Tenant may have
left all or some part of Tenant's Property thereon. Landlord may consider Tenant
in default under this Lease and may pursue all remedies available to it under
this Lease or otherwise as may be available in equity or at law.
(b) Landlord Right to Enter and to Relet. If Tenant abandons the
Demised Premises as set forth in subsection (a) above, Landlord may, at its
option, enter into the Demised Premises without being liable for any prosecution
therefor or for damages by reason thereof. In addition to any other remedy
elsewhere provided in this Section 12 or at law or in equity, Landlord, as agent
of Tenant, may relet the whole or any part of the Demised Premises for the whole
or any part of the then unexpired Lease Term. For the purposes of such
reletting, Landlord may make any alterations or modifications of the Demised
Premises considered desirable in its sole judgment.
12.8 TENANT'S PROPERTY. Tenant shall not remove any of Tenant's Property
from the Demised Premises without the prior written consent of Landlord, other
than in the ordinary course of Tenant's business. In the event of a default
under this Lease, Tenant shall not, under any circumstances, remove Tenant's
Property from the Demised Premises and Landlord may (but shall not be obligated
to) keep Tenant's Property in place (and require Tenant to return or replace
Tenant's Property to the extent Tenant removes same in violation of the terms of
this Lease) and use, or permit another occupant of the Demised Premises,
Building and/or Complex to use, Tenant's Property during the remainder of the
Lease Term (whether or not Landlord elects to terminate this Lease for such
default) at no cost, expense or liability to Landlord or such occupant. If
Tenant abandons the Demised Premises as defined in Section 12.7(a) above or
otherwise vacates the Demised Premises or otherwise defaults under this Lease,
any property that Tenant leaves within or related to the Demised Premises shall
be deemed to have been abandoned and, without liability to Tenant, may be
disposed of in the trash or retained by Landlord as the property of Landlord or
disposed of at public or private sale, or placed at the use of another occupant
in the Building or the Complex or any subsequent occupant in the Demised
Premises, as Landlord sees fit in its sole
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discretion, all at no cost or expense to Landlord or such other person permitted
to use all or a portion of Tenant's Property hereunder, or Landlord may store
Tenant's Property at a location selected by Landlord in its sole discretion at
Tenant's sole cost and expense. The proceeds of any public or private sale of
Tenant's Property shall be applied by Landlord against (i) the expenses of
Landlord for removal, storage or sale of the property; (ii) the arrears of Base
Annual Rent, Additional Rent or other sums then or thereafter payable under this
Lease; and (iii) any other damages to which Landlord may be entitled hereunder.
At Landlord's option, at any time during the Lease Term after default by Tenant,
Landlord may require Tenant to forthwith remove Tenant's Property from the
Demised Premises. If Tenant vacates or abandons the Demised Premises, as defined
above, Landlord may transfer any of Tenant's Property to creditors of Tenant, on
presentation of evidence of a claim valid on its face of ownership or of a
security interest in any of Tenant's Property abandoned in the Demised Premises
or the Building, and Landlord may recover any costs incurred by Landlord in
doing so, all without incurring any liability to Tenant.
12.9 LANDLORD'S LIEN.
(a) Right of Distress/Landlord's Lien. To secure the payment of all
Base Annual Rent, Additional Rent and all other charges and sums that may become
due to Landlord under the terms of this Lease, Landlord shall have and is hereby
granted by Tenant a right of distress for rent, and a contractual first lien and
security interest upon all of Tenant's Property and all Leasehold Improvements,
and also upon all proceeds from the sale, transfer or other disposition of any
such property, and any replacements and substitutions thereof, and proceeds
thereof, and all proceeds of any insurance which may accrue to Tenant by reason
of damage to or destruction of any such property. All exemption laws are hereby
waived by Tenant. This lien is given in addition to Landlord's statutory and
common law liens and shall be cumulative thereto. "Leasehold Improvements" shall
be defined to mean all improvements installed or constructed within the Demised
Premises whether by or on behalf of either Landlord or Tenant (exclusive of
Tenant's trade fixtures), and as repaired, replaced, altered or improved from
time to time during the Lease Term, including without limitation, any
partitions, wall coverings, floors, floor coverings, ceilings, lighting
fixtures, and telephone, computer and/or data system wiring or other
improvements. "Tenant's Property" shall be defined to mean all of Tenant's trade
fixtures and all of Tenant's personal property, including, but not limited to,
all goods, wares, merchandise, inventory, furniture, machinery, equipment,
telecommunications and data transmission systems (and all their components
exclusive of wiring), business records, accounts receivables and other personal
property of Tenant in or about the Demised Premises or that may be placed or
kept therein during the Lease Term.
(b) UCC Security Interest. This Lease shall also constitute a
security agreement under the Uniform Commercial Code of the District, State or
Commonwealth in which the Demised Premises are located. Upon the occurrence of
an event of default by Tenant under this Lease, Landlord shall have the option,
in addition to any other remedies provided herein or by law or at equity, to
enter the Demised Premises with or without the permission of Tenant and take
possession of any and all of Tenant's Property situated in or related to the
Demised Premises, without liability for trespass or conversion, and to enforce
the lien and security interest hereby granted in any manner provided by law.
Upon Landlord's request, Tenant will execute and deliver to Landlord UCC
Financing Statements to evidence the above-described lien in favor of Landlord.
Landlord shall be permitted from time to time to file such statements in the
appropriate City, County, District, State and/or Commonwealth offices to perfect
such lien. All expenses incurred by Landlord, including attorneys' fees, to
prepare and file such statements (and any extensions, renewals, assignments,
transfers, releases and terminations relating thereto) shall be immediately
reimbursed by Tenant upon demand. If Tenant fails to deliver such UCC Financing
Statements within ten (10) working days after Landlord's request, Tenant by such
failure irrevocably constitutes and appoints Landlord as its special
attorney-in-fact to execute and record the statements (and any extensions,
renewals, assignments, transfers, releases and terminations relating thereto),
the foregoing power of attorney being coupled with an interest.
(c) UCC Remedies Not Mandatory. Notwithstanding anything herein to
the contrary, Landlord shall not be required to exercise any of its remedies
under the Uniform Commercial Code as a result of the security interest granted
to Landlord herein in lieu of any other right or remedy Landlord may have under
this Lease, at law or in equity, including without limitation the right to deem
any or all of Tenant's Property abandoned and/or dispose of it pursuant to the
provisions of Section 12.8.
12.10 INJUNCTIVE RELIEF. In the event of a breach by Tenant of any of the
covenants or provisions hereof, Landlord shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity as if re-entry,
summary proceedings and other remedies were not herein provided; and in such
event Landlord shall be entitled to recover from Tenant, payable as Additional
Rent hereunder, any and all reasonable expenses as Landlord may incur in
connection with its efforts to secure such injunctive relief or other remedy at
law or in equity, including all costs and reasonable attorneys' fees.
12.11 INDEPENDENT COVENANTS. If Landlord shall commence any proceeding
based upon non-payment of Base Annual Rent, Additional Rent or any other sums of
any kind to which Landlord may be entitled or which it may claim hereunder,
Tenant will not interpose any counterclaim, set-off, recoupment or other defense
of any nature or description in any such proceeding. The parties hereto
specifically agree that Tenant's covenants to pay Base Annual Rent, Additional
Rent and any other sums required hereunder are independent of all other
covenants and agreements of Landlord herein contained; provided, however, that
this shall not be construed as a waiver of Tenant's right to assert such a claim
in any separate action brought by Tenant. Tenant further waives any right or
defense which it may have to claim a merger.
12.12 WAIVER OF REDEMPTION. Tenant hereby expressly waives any and all
rights of redemption granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession or a judgment for or other right to possession of
the Demised Premises and/or Tenant's Property by reason of the violation by
Tenant of any of the covenants and conditions of this Lease, or otherwise.
12.13 ATTORNEYS' FEES. The parties hereto agree that wherever in this
Lease the Landlord is entitled to collect its "attorney's fees", Landlord shall
be entitled to collect the entire amount of attorneys' fees actually incurred by
Landlord in enforcing its rights hereunder, and, wherever in this Lease the
Landlord is entitled to collect its "reasonable attorneys' fees", Landlord shall
be entitled to not less than twenty-five percent (25%) of any Base Annual Rent,
Additional Rent and/or other sums due Landlord in connection with the collection
thereof, as reasonable attorneys' fees and, in addition, with respect to actions
or claims pertaining to non-rent issues, Landlord shall be entitled to
reimbursement of the customary hourly billing rate of each attorney (and
non-attorney personnel working under such attorney's supervision) for the
reasonable time spent in enforcing (or attempting to enforce) any non-rent
obligation of Tenant hereunder, as reasonable attorneys' fees; provided,
however, the amount to be reimbursed by Tenant as attorneys' fees (reasonable or
otherwise) in any one matter shall never be less than One Thousand Dollars
($1,000).
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13. SUBORDINATION
13.1 SUBORDINATION. This Lease is subject and subordinate to all ground
or underlying leases and to all mortgages and/or deeds of trust and/or other
security interests (individually and collectively "mortgage") which may now or
hereafter affect the real property of which the Demised Premises form a part,
including all renewals, modifications, consolidations, replacements and
extensions thereof. This clause shall be self-operative and no further
instrument of subordination shall be required to effect this subordination.
Notwithstanding the foregoing, in confirmation of such subordination, Tenant
shall at Landlord's request execute and deliver to Landlord within ten (10)
business days after Landlord's request, any requisite or appropriate
certificate, subordination agreement or other document that may be reasonably
requested by Landlord or any other party requiring such certificate,
subordination agreement or document. If Tenant fails to execute such
certificate, subordination agreement or other document requested by Landlord or
other party within said ten (10) day period, Tenant by such failure irrevocably
constitutes and appoints Landlord as its special attorney-in-fact to execute
such certificate, subordination agreement or other document on Tenant's behalf,
the foregoing power-of-attorney being deemed to be coupled with an interest.
Notwithstanding the foregoing, any lessor under any ground or underlying lease
and the party secured by any mortgage affecting the real property of which the
Demised Premises are a part, or any renewal, modification, consolidation,
replacement or extension thereof, shall have the right to recognize this Lease
and, in the event of any cancellation or termination of such ground or
underlying lease, or any foreclosure under any mortgage, or any sale of the real
property at foreclosure sale, or any transfer of the real property by a deed in
lieu of foreclosure, this Lease shall continue in full force and effect at the
option of the lessor under such ground or underlying lease or, as applicable,
the party secured by such mortgage, or the purchaser at any foreclosure sale, or
the party taking the real property under a deed in lieu of foreclosure, such
party being hereby authorized by Tenant to exercise such option to cancel or
continue this Lease in such party's reasonable or unreasonable discretion.
Tenant hereby consents to the right of such party to effect the survival of this
Lease. Tenant agrees that neither the cancellation nor termination of any ground
or underlying lease, nor the foreclosure under any mortgage, nor the sale at
foreclosure, nor the transfer by a deed in lieu of foreclosure, shall, by
operation of law or otherwise, result in cancellation or termination of this
Lease or the obligations of Tenant hereunder, except in the sole option of the
party herein granted such option, which option may be exercised in said party's
reasonable or unreasonable discretion.
13.2 ESTOPPEL CERTIFICATES. Tenant shall execute and return within ten
(10) business days any certificate that Landlord may request from time to time,
stating that this Lease is unmodified and in full force and effect, or in full
force and effect as modified, and stating the modification. The certificate also
shall state (a) the amount of the monthly installment of Base Annual Rent and
Additional Rent and the dates to which such rent has been paid in advance; (b)
the amount of any security deposit or prepaid rent; (c) that there is no present
default on the part of Landlord nor is there in existence any condition, event,
act or omission which with the giving of notice and/or the passage of time will
constitute a default on the part of Landlord, or attach a memorandum stating in
detail the factual circumstances of such default and/or the basis under the
Lease for such default; (d) that Tenant has no right to set-off or recoupment
and no defense or counterclaim against enforcement of its obligations under this
Lease; (e) that Tenant has no other notice of any sale, transfer or assignment
of this Lease or of the rentals; (f) that all Construction Improvements and
other work and improvements required of Landlord has been completed and that the
Construction Improvements and other work and improvements are complete and
satisfactory; (g) that Tenant is in full and complete possession of the Demised
Premises; (h) the date on which Tenant's rental obligations commenced (excluding
any periods of abatement) and the date to which such rent has been paid; (i)
that Tenant has not advanced any amounts to or on behalf of Landlord which have
not been reimbursed; (j) that Tenant understands that this Lease has been
collaterally assigned to Landlord's mortgagee as security for a loan to
Landlord; (k) that Base Annual Rent and Additional Rent may not be prepaid more
than one (1) month in advance without the prior written approval of Landlord's
mortgagee; and (l) such other items as Landlord may reasonably request. Failure
to deliver the certificate within the aforesaid ten (10) business day period
shall be conclusive upon Tenant for the benefit of Landlord and any successor to
or mortgagee or assignee of Landlord that this Lease is in full force and effect
and has not been modified except as may be represented by the party requesting
the certificate. If Tenant fails to deliver the certificate within the aforesaid
ten (10) business day period, Tenant by such failure irrevocably constitutes and
appoints Landlord as its special attorney-in-fact to execute and deliver the
certificate to any third party, the foregoing power of attorney being deemed to
be coupled with an interest.
13.3 ATTORNMENT. Tenant covenants and agrees that, in the event any
ground lessor, lessor of any underlying lease or subsequent purchaser of the
Building so requests or in the event of any foreclosure under any mortgage, or
any renewal, modification, consolidation, replacement or extension thereof, or
in the event of a sale at foreclosure, or in the event of any acceptance of any
deed in lieu of foreclosure, which may now or hereafter affect the real property
of which the Demised Premises are a part, Tenant shall attorn to any ground
lessor, lessor of any underlying lease or subsequent purchaser of the Building
or to the party secured by such mortgage, or any renewal, modification,
consolidation, replacement or extension thereof, and to any purchaser at any
foreclosure sale or party taking a deed in lieu of foreclosure, and at the sole
option of such party, which option may be exercised in said party's reasonable
or unreasonable discretion, this Lease shall continue as a direct lease between
Tenant herein and such landlord or its successor. In any case, such landlord or
successor under such ground or underlying lease or such secured party or
purchaser at foreclosure sale or party taking a deed in lieu of foreclosure
shall not be bound by any prepayment on the part of Tenant of the Base Annual
Rent or Additional Rent for more than one month in advance, so that Base Annual
Rent and Additional Rent shall be payable under this Lease in accordance with
its terms, from the date of the termination or transfer of the ground or
underlying lease or the foreclosure under such mortgage, or the date of
foreclosure sale or transfer by deed in lieu of foreclosure, as if such
prepayment had not been made. Further, such landlord or successor in interest
shall not be liable for damages for any act or omission of Landlord or any prior
landlord or be subject to any recoupments, offsets, counterclaims or defenses
which Tenant may have against Landlord or any prior landlord. Tenant shall, upon
request of such landlord or successor landlord, execute and deliver an
instrument or instruments confirming Tenant's attornment.
13.4 MORTGAGEE RIGHTS.
(a) Mortgagee Requirements. Tenant shall, at its own expense,
comply with all reasonable notices of Landlord's mortgagee or other financial
institution providing funds which are secured by a mortgage placed on the whole
or any part of the real property of which the Demised Premises are a part,
respecting all matters of occupancy, use, condition or maintenance of the
Demised Premises, provided the same shall not unreasonably interfere with the
conduct of Tenant's business nor materially limit or affect the rights of the
parties under this Lease. Tenant shall, if so directed by Landlord's mortgagee
or such other financial institution in writing, pay all Base Annual Rent,
Additional Rent and other sums owed to Landlord directly to such mortgagee or
other financial institution. Notwithstanding acceptance and execution of this
Lease by the parties hereto, the terms hereof shall be automatically deemed
modified, if so required, for the purpose of complying with or fulfilling the
reasonable requirements of any mortgagee or trustee named or
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secured by a mortgage that may now or hereafter be placed upon or secured by the
real property of which the Demised Premises are a part or any part thereof, or
any other financial institution providing funds to finance or refinance the real
property of which the Demised Premises are a part; provided, however, that such
modification(s) shall not be in material derogation or diminution of any of the
rights of the parties hereunder, nor materially increase any of the obligations
or liabilities of the parties hereunder.
(b) Notices to Mortgagee. Tenant agrees to give Landlord's
mortgagee and any trustee named or secured by a mortgage a copy of any notice of
default served upon Landlord by Tenant, provided that prior to such notice
Tenant has been notified in writing (by way of Notice of Assignment of Rents and
Leases, or otherwise) of the names and addresses of such mortgagees and
trustees. Notice shall be provided to the mortgagees and trustees in the manner
prescribed in Section 24. Tenant further agrees that if Landlord shall have
failed to cure such default within the cure period provided in this Lease, if
any, then the mortgagees and trustees shall have an additional thirty (30) days
within which to cure such default, or if such default cannot be cured within
that time, then such additional time as may be necessary if within such thirty
(30) days such mortgagee or trustee has commenced and is diligently pursuing the
remedies necessary to cure such default (including, but not limited to,
commencement of foreclosure proceedings if necessary to effect such cure), in
which event Tenant shall not pursue its remedies while such cure is being
diligently pursued.
14. TENANT'S HOLDOVER
14.1 WITH LANDLORD CONSENT. If Tenant continues, with the knowledge and
written consent of Landlord obtained at least thirty (30) days prior to the
expiration of the Lease Term, to remain in the Demised Premises after the
expiration of the Lease Term, then Tenant shall, by virtue of said holdover
agreement, become a tenant from month-to-month at the rent stipulated by
Landlord in said consent, or if none is stipulated, at the monthly rate of Base
Annual Rent and Additional Rent last payable under this Lease (adjusted in
accordance with the provisions of this Lease as if the holdover period were
originally included herein), commencing said monthly tenancy with the first day
next following the end of the Lease Term. All other terms and conditions of this
Lease shall apply to any holdover period(s). Tenant shall give to Landlord at
least thirty (30) days written notice of any intention to quit the Demised
Premises. Tenant shall be entitled to thirty (30) days written notice from
Landlord to quit the Demised Premises, except in the event of nonpayment of the
monthly installment of Base Annual Rent and/or Additional Rent in advance or of
the breach of any other covenant, term or condition of this Lease by Tenant, in
which event Tenant shall not be entitled to any notice to quit, the usual thirty
(30) days notice to quit being hereby expressly waived by Tenant.
14.2 WITHOUT LANDLORD CONSENT. In the event that Tenant, without the
written consent of Landlord, shall hold over beyond the expiration of the Lease
Term, then Tenant hereby waives all notice to quit and agrees to pay to Landlord
for the period that Tenant is in possession after the expiration of this Lease,
a monthly charge which is three times the total monthly installment of Base
Annual Rent and Additional Rent in effect during the last month of the Lease
Term. Tenant expressly agrees to reimburse, defend, indemnify and hold Landlord
and Landlord's Agent harmless from all loss and damages, direct and
consequential, which Landlord or Landlord's Agent may incur in connection with
or in defense of claims by other persons or entities against Landlord,
Landlord's Agent or otherwise arising out of the holding over by Tenant,
including without limitation reasonable attorneys' fees which may be incurred by
Landlord or Landlord's Agent in defense of such claims. Acceptance of Base
Annual Rent, Additional Rent or any other sums due from Tenant hereunder or the
performance by Tenant of its obligations hereunder subsequent to the expiration
of the Lease Term, shall not constitute consent to any holding over. Landlord
shall have the right to apply all payments received after the expiration date of
the Lease Term toward payment for use and occupancy of the Demised Premises
subsequent to the expiration of the Lease Term and toward any other sums owed by
Tenant to Landlord, regardless of how such payment(s) may be designated by
Tenant. Landlord, at its option, may forthwith re-enter and take possession of
the Demised Premises without process, or by any legal process in force.
Notwithstanding the foregoing, if Tenant holds over, without Landlord's written
consent, due to acts of God, riot, or war, then such holdover shall be at the
total monthly installment of Base Annual Rent and Additional Rent applicable to
the last month of the Lease Term (adjusted in accordance with the provisions of
this Lease as if the holdover period were originally included herein), for the
duration of the condition (but not to exceed ten (10) days), but such continued
occupancy shall not create any renewal of the term of this Lease nor shall it
create a tenancy from year-to-year, month-to-month, or otherwise, and Tenant
shall be liable for and shall indemnify, defend and hold harmless Landlord and
Landlord's Agent against any loss and damages suffered by Landlord or Landlord's
Agent as described above. Any holdover period during which the Landlord and
Tenant are negotiating the terms and conditions of any holdover tenancy, new
lease or other matter, and/or for which Landlord and Tenant have failed to reach
an agreement as to the rent to be paid during such holdover period, shall
conclusively be deemed to be a holdover without the consent of Landlord for the
purpose of determining the rental to be paid and the obligations to be performed
by Tenant during such period.
15. SECURITY DEPOSIT
Tenant shall deposit with Landlord or Landlord's Agent simultaneously with
the execution of this Lease, the amount stipulated in Section 1.6 as a security
deposit. Provided Tenant is not in default in the payment of Base Annual Rent,
Additional Rent or any other charges due Landlord, and further provided the
Demised Premises are left in good condition, reasonable wear and tear excepted,
as described in Section 6.10, said deposit (which shall not bear interest to
Tenant) shall be returned to Tenant within sixty (60) days after the termination
of this Lease. Notwithstanding the foregoing, the full or partial return by
Landlord to Tenant of the security deposit shall at no time be deemed to
constitute a waiver by Landlord of any of Tenant's obligations under this Lease,
nor an acknowledgment by Landlord that any such obligations are limited to the
amount, if any, of the security deposit retained by Landlord. If Tenant is in
default or is otherwise indebted to Landlord hereunder or if the Demised
Premises are not left in good condition, or if Tenant has failed or refused to
remove Tenant's Property after Landlord's request to do so, then the security
deposit shall be applied to the extent available on account of sums due Landlord
or the cost of repairing damages to the Demised Premises or to remove Tenant's
Property. In the event the funds deposited with Landlord as security are applied
during the Lease Term on account of sums due Landlord or to the cost of
repairing damages or removing Tenant's Property, then Tenant shall, within
fifteen (15) days after demand by Landlord, deposit with the Landlord additional
funds to restore the security deposit to its original amount. In the event of
the sale or transfer of Landlord's interest in the Building, Landlord shall have
the right to transfer the security deposit to such purchaser or transferee, in
which event Tenant shall look only to the new landlord for the return of the
security deposit and Landlord shall thereupon be released from all liability to
Tenant for the return of such security deposit.
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16. QUIET ENJOYMENT
So long as Tenant shall observe and perform the covenants and agreements
binding on Tenant hereunder, Tenant shall at all times during the term herein
granted, peacefully and quietly have and enjoy possession of the Demised
Premises without any encumbrance or hindrance by, from or through Landlord,
except as provided for elsewhere under this Lease. Nothing in this Section shall
prevent Landlord from performing alterations, improvements or repairs on other
portions of the Building not leased to Tenant or from performing alterations,
improvements or repairs within the Demised Premises in accordance with the
provisions of this Lease, nor shall performance of alterations, improvements or
repairs by Landlord, Landlord's Agent or any other tenant of the Building be
construed as a breach of this covenant by Landlord.
17. SUCCESSORS
All rights, remedies and liabilities herein given to or imposed upon
either of the parties hereto, shall extend to their respective heirs, executors,
administrators, personal representatives, successors and assigns. This provision
shall not be deemed to grant Tenant any right to assign this Lease or to sublet
the Demised Premises.
18. WAIVER OF JURY TRIAL AND STATUTE OF LIMITATIONS
Landlord and Tenant (and any guarantors and other parties with liability
for the performance of any or all of Tenant's obligations hereunder, as well as
any subtenants, assignees and licensees of Tenant) hereby waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties hereto
against the other or in respect of any matter whatsoever arising out of or in
any way connected with this Lease, the relationship of Landlord and Tenant
hereunder, Tenant's use or occupancy of the Demised Premises, and/or any claim
of injury or damage. Tenant (and any guarantors and other parties with liability
for the performance of any or all of Tenant's obligations hereunder, as well as
any subtenants, assignees and licensees of Tenant) hereby waives the benefit of
any statute of limitation or other law limiting or prohibiting Landlord from
bringing any claim against Tenant (and/or any guarantors and/or other parties
with liability for the performance of any or all of Tenant's obligations
hereunder, as well as any subtenants, assignees and licensees of Tenant) arising
from or related to this Lease, the relationship of Landlord and Tenant and/or
the performance of Tenant's obligations hereunder at any time. Tenant (and any
guarantors and other parties with liability for the performance of any or all of
Tenant's obligations hereunder, as well as any subtenants, assignees and
licensees of Tenant) hereby agrees to submit to the personal jurisdiction of any
court of competent jurisdiction within the state, or the District of Columbia if
applicable, in which the Demised Premises and/or Landlord's principal place of
business is located.
19. LIMITATION OF LANDLORD'S LIABILITY; NOTICE
19.1 LANDLORD'S CONSENT. Notwithstanding anything to the contrary
contained in this Lease, if any provision of this Lease expressly or impliedly
obligates Landlord not to unreasonably withhold its consent or approval, an
action for declaratory judgment or specific performance will be Tenant's sole
right and remedy in any dispute as to whether Landlord has breached such
obligation or is required to give consent or approval. In no event shall
Landlord be liable for damages for any withholding of, any delay in providing,
or the conditioning of, any consent or approval.
19.2 INDIVIDUAL LIABILITY. Tenant acknowledges and agrees that the
liability of Landlord with respect to any claim arising out of, related to, or
under this Lease shall be limited solely to its interest in the Building. No
personal judgment shall lie against the Landlord nor any partner of a
partnership constituting Landlord (if Landlord is a partnership) nor any
shareholder of Landlord (if Landlord is a corporation), and none of the same
will be personally liable with respect to any claim arising out of or related to
this Lease. If the Landlord is a partnership, any deficit capital account of any
partner and any partner's obligation to contribute capital shall not be deemed
an asset of the partnership. In the event of sale or other transfer of the
Landlord's interest in the Demised Premises and/or Building, Landlord shall
thereupon and without further act by either party be deemed released from all
liability and obligations hereunder arising out of any act or omission relating
to the Demised Premises, the Building or this Lease, occurring subsequent to the
sale or other transfer. The provisions hereof shall inure to the benefit of
Landlord's successors and assigns, including any mortgagee or trustee under a
deed of trust. The foregoing provisions are not intended to relieve Landlord
from the performance of any of Landlord's obligations under this Lease, but only
to limit the personal liability of Landlord, and its partners or shareholders,
as the case may be; nor shall the foregoing be deemed to limit Tenant's rights
pursuant to this Lease to obtain injunctive relief or specific performance with
respect to any obligations of Landlord hereunder.
19.3 NOTICE IN EVENT OF LANDLORD'S DEFAULT. Notwithstanding anything to
the contrary in this Lease, in no event shall Landlord be deemed to be in
default in the performance of any covenant, condition or agreement herein
contained unless Tenant shall have given Landlord written notice of such
default, and Landlord shall have failed to cure such default within thirty (30)
days after such notice (or if such default is of such nature that it cannot be
completely cured within said thirty (30) days, if Landlord fails to commence to
cure within said thirty (30) days and thereafter proceed with reasonable
diligence and in good faith to effect such cure).
20. AUTHORITY
Landlord and Tenant hereby covenant each for itself, that each has the
full right, power and authority to enter into this Lease upon the terms and
conditions herein set forth. If Tenant signs as a corporation, each of the
persons executing this Lease on behalf of Tenant does hereby covenant and
warrant that Tenant is and shall be throughout the Lease Term, a duly authorized
and existing corporation, qualified to do business in the jurisdiction in which
the Demised Premises are located and is in good standing, that the corporation
has full right and authority to enter into this Lease, and that each of the
persons signing on behalf of the corporation were authorized to do so. If Tenant
signs as a partnership, each of the persons executing this Lease on behalf of
Tenant does hereby covenant and warrant that Tenant is a duly formed and validly
existing partnership, qualified to do business in the jurisdiction in which the
Demised Premises are located, and is in good standing, that the partnership has
full right and authority to enter into this Lease, and that each of the persons
signing on behalf of the partnership were authorized to do so.
21. TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES
21.1 HAZARDOUS SUBSTANCES. The term "Hazardous Substances", as used in
this Lease, shall include, without limitation, (a) "hazardous wastes", as
defined by the Resource Conservation and Recovery Act of 1976 as amended from
time to time, (b) "hazardous substances", as defined by the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended from
time to time, (c) "toxic substances", as defined by the Toxic Substances Control
Act, as amended from time to time, (d) "hazardous materials", as defined by the
Hazardous Materials Transportation Act, as amended from time to time, (e) oil
or other petroleum
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products, (f) any substance whose presence could be detrimental to the Building,
its occupants or visitors, or the environment, (g) substances requiring special
handling, (h) flammables, explosives, radioactive materials, asbestos,
polychlorinated biphenlys (PCBs), chlorofluorocarbons, chemicals known to cause
cancer or reproductive toxicity, pollutants and contaminants, (i) any infectious
and/or hazardous medical waste as the same may be determined from time to time,
and (j) any other substances declared to be hazardous or toxic under Laws
(hereinafter defined) now or hereafter enacted or promulgated by any Authorities
(hereinafter defined).
21.2 TENANT'S RESTRICTIONS. Tenant shall not cause or permit to occur:
(a) Violations. Any violation of any federal, state and local laws,
ordinances, regulations, directives, orders, notices and requirements now or
hereafter enacted or promulgated regulating the use, generation, storage,
handling, transportation, or disposal of Hazardous Substances ("Laws"), now or
hereafter enacted, related to environmental conditions on, under, or about the
Demised Premises, the Building and/or the Complex, or arising from Tenant's use
or occupancy of the Demised Premises, Tenant's Property, or Leasehold
Improvements, including, but not limited to, soil and ground water conditions;
and/or
(b) Use. The use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any Hazardous Substances on,
under, or about the Demised Premises, the Building and/or the Complex, or the
transportation to or from the Demised Premises of any Hazardous Substances,
without the prior written consent of Landlord, such consent to be granted or
withheld in Landlord's sole and absolute discretion, and, if granted, Tenant's
activities shall be in strict compliance with all Laws.
21.3 AFFIRMATIVE OBLIGATIONS.
(a) Compliance with Laws. Tenant shall, at Tenant's own expense,
comply with all Laws. Tenant shall, at Tenant's own expense, make all
submissions to, provide all information required by, and comply with all
requirements of all federal, state and local governmental and regulatory
authorities (the "Authorities") under the Laws. Tenant shall promptly provide
Landlord with a copy of all such submissions and information requests.
(b) Clean-Up Plans. Should any Authority or any third party demand
that a removal or clean-up plan be prepared and that a removal or clean-up be
undertaken because of any deposit, spill, discharge, release, misuse,
prohibition on continued use, act or failure to act with respect to any
Hazardous Substances relating to, occurring on or arising out of Tenant's use or
occupancy of the Demised Premises, Tenant's Property or Leasehold Improvements,
then Tenant shall, at Tenant's own expense, prepare and submit the required
plans and all related bonds and other financial assurances, and Tenant shall
carry out all such removal and clean-up plans within the time limits set by any
Authority or other party. Tenant shall promptly provide Landlord with copies of
notices received from any Authority or third party, and of all removal and
clean-up plans, bonds, and related matters.
(c) Information Requests. Tenant shall promptly provide all
information regarding the use, generation, storage, transportation or disposal
of Hazardous Substances that is required hereunder or is requested by Landlord.
If Tenant fails to fulfill any duty imposed under this Section 21 within a
reasonable time (or any shorter period of time if so required by any Authority),
Landlord may (but shall not be obligated to) do so and all costs associated
therewith shall constitute Additional Rent hereunder and shall be immediately
due and payable to Landlord, together with interest thereon calculated at the
rate of twenty-four percent (24%) per annum. In such case, Tenant shall
cooperate with Landlord in order to prepare all documents Landlord deems
necessary or appropriate to determine the applicability of the Laws to the
Demised Premises, Tenant's use thereof and Tenant's Property and Leasehold
Improvements, and for compliance therewith, and Tenant shall execute all
documents promptly upon Landlord's request. No such action by Landlord and no
attempt made by Landlord to mitigate damages under any Laws shall constitute a
waiver of any of Tenant's obligations under this Section 21.
21.4 TENANT'S INDEMNITY. Tenant shall indemnify, defend, and hold
harmless Landlord, Landlord's Agent, and their respective officers, directors,
beneficiaries, shareholders, partners, agents and employees from all fines,
suits, procedures, claims and actions of every kind, and all costs associated
therewith (including attorneys' and consultants' fees) arising out of or in any
way connected with any deposit, spill, discharge, release, misuse, prohibition
or continued use, act or failure to act, with respect to any Hazardous
Substances or other failure to comply with the Laws which arise at any time from
Tenant's use or occupancy of the Demised Premises or Tenant's Property or the
Leasehold Improvements, or from Tenant's failure to provide all information,
make all submissions, and take all steps required by all Authorities under the
Laws and all other related laws.
21.5 SURVIVAL OF OBLIGATIONS. Tenant's obligations and liabilities under
this Section 21, and the obligations of all guarantors and other parties with
liability for the performance of any or all of Tenant's obligations hereunder,
shall survive the expiration or earlier termination of this Lease.
22. JOINT AND SEVERAL LIABILITY
In the event that two or more individuals, corporations, partnerships or
other business associations (or any combination of two or more thereof) shall
sign this Lease as Tenant or guarantee this Lease as guarantors or are otherwise
liable for the performance of any or all of Tenant's or any guarantor's
obligations, the liability of each such individual, corporation, partnership or
other business association to pay Base Annual Rent, Additional Rent and any
other sums due hereunder and to perform all or any other obligations hereunder
shall be deemed to be joint and several. In like manner, in the event that the
Tenant named in this Lease shall be a partnership or other business association,
the members of which are by virtue of statute or general law subject to personal
liability, then, and in that event, the liability of each such member shall be
deemed to be joint and several. Notwithstanding any other provisions hereof, or
of any rule or provisions of law, the failure or refusal by Landlord to proceed,
in the event of a breach or default by Tenant, against all the individuals,
corporations, partnerships or other business associations comprising the Tenant
(or any combination of two or more thereof) or against Tenant or against one or
more of the guarantors or other parties with liability for the performance of
any or all of Tenant's or any guarantor's obligations, shall not be deemed to be
a release or waiver of any rights which Landlord may possess against such other
individuals, corporations, partnerships or other business associations not so
proceeded against, nor shall the granting by Landlord of a release of, or
execution of a covenant not to xxx, any one or more of the individuals,
corporations, partnerships, or other business associations comprising the Tenant
(or any combination of two or more thereof) or the guarantors or other parties
with liability for the performance of any or all of Tenant's or any guarantor's
obligations, constitute a release or waiver, in whole or in part, of any rights
which Landlord may possess against such other individuals, corporations,
partnerships, or associations not so released or granted a covenant not to xxx.
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23. DEFINITIONS
23.1 PRONOUNS. Feminine or neuter pronouns shall be substituted for
those of the masculine form, and the plural shall be substituted for the
singular number, in any place or places herein in which the context may require
such substitution or substitutions. Landlord and Tenant herein for convenience
have been referred to in the neuter form.
23.2 DEMISED PREMISES. Wherever the word "premises" or the phrase
"demised premises" is used in this Lease, it shall refer to the Demised Premises
described in Section 1.1, unless the context clearly requires otherwise.
23.3 LEASE TERM. Wherever the phrase "Lease Term" or the phrase "term of
this Lease" is used in this Lease, it shall refer to the Lease Term described in
Section 1.2(a) and any extensions and renewals thereof validly and timely
exercised by Tenant, unless the context clearly requires otherwise.
23.4 TENANT'S PROPERTY. Wherever the phrase "Tenant's Property" is used
in this Lease, it shall refer to the Tenant's Property described in Section
12.9(a), unless the context clearly requires otherwise.
23.5 LEASEHOLD IMPROVEMENTS. Wherever the phrase "Leasehold
Improvements" is used in this Lease, it shall refer to the Leasehold
Improvements described in Section 12.9(a), unless the context clearly requires
otherwise.
24. NOTICE TO PARTIES
24.1 ADDRESSES FOR NOTICES. All notices required or desired to be given
hereunder by either party to the other shall be in writing and personally
delivered or given by overnight express delivery service or by certified or
registered mail (delivery and/or postage charges prepaid) and addressed as
specified in Section 1.9. Either party may, by like written notice, designate a
new address to which such notices shall be directed.
24.2 EFFECTIVE DATE OF NOTICE. Notices personally delivered shall be
deemed effective upon delivery; notices sent by certified or registered mail
shall be deemed effective upon the earlier of (i) the date of receipt or
rejection by the addressee, or (ii) three (3) days following the date of mailing
(excluding Sundays and holidays on which mail is not delivered by the United
States Postal Service). Notwithstanding the foregoing, any notice pertaining to
a change of address of a party shall be deemed effective only upon receipt or
rejection by the party to whom such notice is sent.
25. NOTICE TO MORTGAGEES
In addition to any notices required by Section 13.4, if any mortgagee
shall notify Tenant that it is the holder of a mortgage affecting the Demised
Premises and that it is requesting Tenant to provide the mortgagee with copies
of notices sent by Tenant to Landlord, no notice, request or demand thereafter
sent by Tenant to Landlord shall be effective unless and until a copy of the
same shall also be sent to such mortgagee in the manner prescribed in Section 24
and to such address as such mortgagee or trustee shall designate.
26. SPECIAL PROVISIONS; EXHIBITS
26.1 INCORPORATION IN LEASE. It is agreed and understood that any
Special Provisions and Exhibits referred to in Sections 1.10 and 1.11,
respectively, and attached hereto, form an integral part of this Lease and are
hereby incorporated by reference.
26.2 CONFLICTS. If there is a conflict between a Special Provision
hereto and the Exhibits, Specific Provisions or General Provisions of this
Lease, the Special Provision shall govern. If there is a conflict between a
Specific Provision and the Exhibits or General Provisions of this Lease, the
Specific Provision shall govern. If there is a conflict between the Exhibits and
the General Provisions, the Exhibits shall govern.
27. CAPTIONS
All section and paragraph captions herein are for the convenience of the
parties only, and neither limit nor amplify the provisions of this Lease.
28. ENTIRE AGREEMENT; MODIFICATION
This Lease, all Exhibits, and the Specific and Special Provisions
incorporated herein by reference are intended by the parties as a final
expression of their agreement and a complete and exclusive statement of the
terms thereof, all negotiations, considerations and representations between the
parties having been incorporated herein. No course of prior dealings between the
parties or their officers, partners, employees, agents or affiliates shall be
relevant or admissible to supplement, explain or vary any of the terms of this
Lease, the Exhibits and the Specific and Special Provisions. Acceptance of, or
acquiescence in, a course of performance rendered under this or any prior
agreement between the parties, their agents or their affiliates shall not be
relevant or admissible to determine the meaning of any of the terms of this
Lease, the Exhibits and the Specific and Special Provisions. Tenant hereby
acknowledges that Landlord, Landlord's Agent and their respective agents and
employees made no representations, warranties, understandings or agreements
pertaining to the condition of the Building or the Demised Premises, or
otherwise, which have induced Tenant to execute, or have been relied upon by
Tenant in the execution of this Lease, other than those specifically set forth
herein. This Lease can be modified only by a writing signed by both parties
hereto. The language of this Lease shall in all cases be construed as a whole
and according to its fair meaning, and not strictly for or against either
Landlord or Tenant. The interpretation or construction of this Lease shall be
unaffected by any argument or claim, whether or not justified, that this Lease
has been prepared, wholly or in substantial part, by or on behalf of Landlord or
Tenant. Tenant acknowledges that it has had, or has had the opportunity to have,
legal counsel of Tenant's choice to negotiate on behalf of (and/or explain to)
Tenant the provisions of this Lease. Any consent or approval required or desired
of Landlord, or any decision under this Lease committed to the discretion of
Landlord hereunder, may be withheld, delayed, conditioned or exercised by
Landlord in its sole, absolute and arbitrary discretion unless the provision of
this Lease requiring such consent or approval, or decision under this Lease
committed to the discretion of Landlord, expressly states that Landlord shall
not withhold, delay, condition or exercise such consent, approval or discretion
unreasonably.
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29. GOVERNING LAW; SEVERABILITY
This Lease shall be governed by and construed in accordance with the laws
of the State or District in which the Building is located. The unenforceability,
invalidity, or illegality of any provision herein shall not render any other
provision herein unenforceable, invalid, or illegal.
30. BINDING EFFECT OF LEASE
The submission of an unsigned copy of this document to Tenant for
examination or signature shall not constitute an option, reservation or offer to
lease space in the Building. This Lease shall become effective and binding only
upon execution and delivery by both Landlord and Tenant, and shall be
enforceable in accordance with its terms from and after the date this Lease is
fully executed and delivered by Landlord and Tenant.
31. FORCE MAJEURE
If Landlord is in any way delayed or prevented from performing any
obligation due to fire, act of God, governmental act or failure to act, labor
dispute, inability to procure materials or any cause beyond Landlord's
reasonable control (whether similar or dissimilar to the foregoing named
events), then the time for performance of such obligation shall be excused for
the period of such delay or prevention and extended for a period equal to the
period of such delay or prevention.
32. RECORDATION
Neither this Lease nor a memorandum hereof shall be recorded by Tenant.
Any violation of this Section shall be a default hereunder and Tenant agrees to
pay all costs and expenses, including attorneys' fees, necessary to remove this
Lease or any memorandum hereof from record. Tenant irrevocably constitutes and
appoints Landlord as its special attorney-in-fact to prepare, execute and record
such instrument(s), the foregoing power of attorney being deemed to be coupled
with an interest.
33. TIME OF ESSENCE
Tenant acknowledges that time is of the essence in its performance of any
and all obligations, terms and provisions of this Lease.
34. BROKERS
Tenant represents and warrants that it did not retain, nor consult with,
any broker or real estate salesperson (other than Landlord's Agent) with respect
to this Lease. Tenant agrees to indemnify and hold Landlord and Landlord's Agent
harmless from and against any claims for brokerage or other commissions and any
claim of, or right to, a lien under applicable law relating to real estate
broker liens, arising by reason of a breach by Tenant of the foregoing
representation and warranty. Tenant agrees to pay, or upon demand reimburse
Landlord and Landlord's Agent for, all costs and expenses, including attorneys'
fees, necessary to remove from record any lien filed against the rents payable
pursuant to this Lease and/or against the Demised Premises and/or the Building,
by reason of a breach by Tenant of the foregoing representation and warranty.
35. RELATIONSHIP OF LANDLORD AND TENANT
Nothing in this Lease shall be interpreted or construed as creating any
partnership, joint venture, agency or any other relationship between the
parties, other than that of landlord and tenant.
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36. RENT
36.1 In Section 2.1(a), in the fifth line, delete 'by electronic
... otherwise'.
36.2 Section 2.2(a)(ii) is deleted entirely.
36.3 In Section 2.2(a)(iv), in the fourth line, after the first
'Improvements' insert "(but not leasehold improvements for other tenants)".
36.4 In Section 2.2(b)(ii), in the last line, after 'commissions;'
insert "costs of repairs, restoration, replacements or other work occasioned by
fire, windstorm or other insured casualty (whether such destruction be total or
partial) to the extent of insurance proceeds therefor; the cost of repairs,
etc., occasioned by the exercise by governmental authorities of the right of
eminent domain, whether such taking be total or partial, to the extent of any
condemnation awards; costs occasioned by intentional tort of Landlord, or any
subsidiary or affiliate of Landlord, or any employee or agent of same or the act
of any other tenant in the Building, or any other tenant's agents, employees,
licensees or invitees, to the extent Landlord recovers the applicable cost from
such person; leasing commissions, attorneys' fees (except for those reasonable
attorneys' fees directly related to Operating Expenses or Real Estate Taxes);
expenses incurred in connection with negotiations for leases with tenants, other
occupants, or prospective tenants or other occupants of the Building, or similar
costs incurred in connection with disputes with tenants, other occupants, or
prospective tenants, or similar costs and expenses incurred in connection with
negotiations or disputes with management agents, purchasers or mortgagees of the
Building; allowances, concessions and other costs and expenses incurred in
completing, fixturing, furnishing, renovating or otherwise improving, decorating
or redecorating space for tenants (including Tenant), prospective tenants or
other occupants and prospective occupants of the Building, or vacant, leasable
space in the Building; costs or expenses relating to another tenant's or
occupant's space which were incurred in rendering any service or benefit to such
tenant that was not available to Tenant; payments of principal and interest or
other finance charges made on any debt and rental payments made under any ground
or underlying lease or leases; costs incurred in connection with the sale,
financing, refinancing, mortgaging, selling or change of ownership of the
Building, including attorneys' and accountants' fees, closing costs, title
insurance premiums, transfer taxes and interest charges; costs, fines, interest,
penalties, legal fees or costs of litigation incurred due to the late payments
of taxes, utility bills and other costs incurred by Landlord's failure to make
such payments when due; costs incurred by Landlord for trustees fees,
partnership organizational expenses and accounting fees (except accounting fees
relating solely to the ownership and operation of the Building); Landlord's
general corporate overhead and general and administrative expenses; any
compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord or in the parking garage of the Building;
rentals and other related expenses incurred in leasing air conditioning systems,
elevators or other equipment ordinarily considered to be of a capital nature
(except for equipment not affixed to the Building which is used in providing
janitorial or similar services); the rent for Landlord's on-site management or
leasing office, or any other offices or spaces of Landlord or any related
entity; Landlord's income and franchise taxes; special assessments and other
business taxes except those business taxes which relate solely to the operation
of the Building; all amounts which would otherwise be included in Operating
Expenses which are paid to any affiliate or subsidiaries of Landlord, or any
representative, employee or agent of same, to the extent the costs of such
services exceed fair market value; except the management fee paid to Landlord's
Agent, all other fees for management of the Building; costs or expenses of
utilities directly metered to tenants of the Building and payable separately by
such tenants; costs incurred (less costs of recovery) for any items to the
extent covered by a manufacturer's materialman's, vendor's or contractor's
warranty (a "Warranty") which are paid by such manufacturer, materialman, vendor
or contractor; electric power costs for which any tenant directly contracts with
the local public service company; services provided and costs incurred in
connection with the operation of the parking garage or retail or the ancillary
operations owned, operated or subsidized by Landlord; rental for any space in
the Building set aside for conference facilities, storage facilities or exercise
facilities; wages and salaries for off-site employees and employees at the
Building above the level of building manager;".
36.5 In Section 2.2(b)(iii), in each of the second and fifth
lines, delete 'other than' and substitute "including"; and in the sixth line,
before 'estimated' insert "reasonably".
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36.6 In Section 2.3(d), in the first line, delete 'thirty (30)'
and substitute "sixty (60)".
36.7 In Section 2.9, in the second line, after 'after' insert
"written notice from Landlord"; and in the penultimate line, delete 'eighteen
percent (18%)' and substitute "twelve percent (12%)".
37. LANDLORD'S CONTRIBUTION
37.1 Provided Tenant is not then in default of any of the terms or
conditions of this Lease, Landlord agrees to contribute the sum of up to Five
Thousand Four Hundred Twenty and 00/100 Dollars ($5,420.00) toward the cost of
Tenant's remodeling, which amount Tenant shall receive in the form of a credit
toward remodeling expenses owed by Tenant to Landlord's contractors.
38. ACCRUAL OF RENT OBLIGATION
38.1 Tenant shall be obligated for the payment of Base Annual Rent
and Additional Rent pursuant to Sections 1.3 and 1.5 on the Commencement Date,
regardless of any time required to construct, alter or redecorate the Demised
Premises to Tenant's requirements.
39. PARKING
39.1 Landlord agrees to arrange for parking in the garage of the
Building for up to fifteen (15) automobiles of Tenant or Tenant's employees,
which parking shall be made available upon Tenant's or its employees' payment of
the prevailing monthly rate for such service.
40. CONSTRUCTION OF PREMISES AND OCCUPANCY
40.1 Sections 3.1 and 3.4 are deleted entirely.
41. SUBLETTING AND ASSIGNMENT
41.1 In Section 4.1, in the first line, after 'withheld' insert ",
conditioned".
41.2 In Section 4.2, in the third and fourth lines, delete 'ninety
(90)' and substitute "thirty (30)".
41.3 Provided Tenant first obtains the written consent of the
Landlord to such sublease or assignment as required by Section 4 and further
provided that Tenant is not in default of any of the terms or conditions of this
Lease on the date each rent payment is due pursuant to such sublease or
assignment, then notwithstanding Section 4.3, only Fifty Percent (50%) of any
rent and other consideration accruing to Tenant as a result of each such
sublease or assignment which is in excess of the pro rated portion of Base
Annual Rent and Additional Rent then being paid by Tenant for the Demised
Premises or portion thereof being sublet pursuant to said sublease or assignment
shall be paid by Tenant to Landlord monthly as Additional Rent. Tenant shall be
permitted to deduct the reasonable advertising costs, reasonable brokerage
commissions and reasonable remodeling costs, in calculating Landlord's share of
the net excess rent and other consideration to be paid to Landlord pursuant to
this Section. Tenant shall provide documentation of such expenses to Landlord at
the time Tenant requests Landlord's giving consent to the subletting or
assignment.
41.4 In Section 4.4, in the last line, after 'Lease' insert ",
unless otherwise agreed in writing by Landlord".
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42. SERVICES AND UTILITIES
42.1 In Section 5.1, in the last line, after `Lease' insert ";
provided, however, if the Demised Premises are rendered untenantable by such
failure, suspension, delay or interruption of services for five (5) consecutive
business days due to Landlord's negligence or willful misconduct, then Tenant
may xxxxx paying Base Annual Rent from said fifth (5th) day until such service
is restored".
42.2 In Section 5.3(c), in the third line, delete `The' and insert "If
excess electric consumption is established by such meters or survey, then the";
and in the fourth line, after the first `Tenant' insert "only if excess
consumption is established".
42.3 In Section 5.6, in the penultimate line, after the second
`consent' insert "shall not be unreasonably withheld, conditioned or delayed."
and delete the remainder of the paragraph.
43. USE AND UPKEEP OF PREMISES
43.1 In Section 6.3, in the last line, after `act' insert "; provided,
however, that Tenant shall be given written notice and reasonable opportunity to
cure such actions or failures before any liability for such costs accrues".
43.2 In Section 6.4(a), in the first line, before `Tenant' insert
"Except for cosmetic changes and decorations,"; and in the fourth line, delete
`or cosmetic'.
43.3 In Section 6.4(b), in both the eleventh and twelfth lines, delete
`five (5)' and substitute "ten (10)".
43.4 In Section 6.4(c), in the third line, delete `this Lease...and
Tenant' and substitute "the Demised Premises are delivered to Tenant, normal
wear and tear excepted"; in the eighth line, after `expense' insert "provided
Landlord so advised Tenant when Tenant requested Landlord's consent thereto";
and in the ninth line, after `date' insert "the Demised Premises are delivered
to Tenant, normal wear and tear excepted." and delete the rest of the sentence.
43.5 In Section 6.5(a), in the eighth line, delete `ten (10)' and
substitute "thirty (30)".
43.6 In Section 6.5(b), in the last line, after `aforesaid' insert
";provided, however, if the Demised Premises are rendered untenantable thereby
for five (5) consecutive business days, then Tenant may xxxxx paying Base Annual
Rent from said fifth (5th) day until the Demised Premises are again tenantable".
43.7 In Section 6.8(b), at the end of the paragraph, change the period
to a comma and insert "unless solely arising from or caused by the fault or
negligence of Landlord, or of any of Landlord's principals, employees or agents
acting on behalf of Landlord.".
43.8 In Section 6.9, in the third line, after the second `time' insert
"(provided such changes do not materially interfere with Tenant's rights under
this Lease)"; in the ninth line, after `(3)' insert "business"; and at the end
of the Section insert "Landlord shall use reasonable efforts to enforce the
Rules and Regulations equitably.".
43.9 In Section 6.11, in the second line, after `Improvements' insert
"(except structural elements)".
43.10 In Section 6.12, in the penultimate line, delete `ten (10)' and
substitute "thirty (30)".
43.11 Section 6.13 is deleted entirely.
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44. ACCESS
44.1 In Section 7.1, in the second line, after `times' insert "after
reasonable notice (except in emergencies)".
44.2 In Section 7.3, in the fourth line, after `lobbies.' insert "At
least one elevator shall be operable at all times.".
45. LIABILITY
45.1 In Section 8.1, in the third line, after `Property' insert ";
provided, however, the foregoing provision shall not apply (a) if the loss was
caused by the negligence of Landlord, Landlord's Agent or their agents or
employees, and (b) the Tenant has not otherwise waived and released its claims
pursuant to Section 8.5(f)." and delete the remainder of the paragraph.
45.2 In Section 8.2, in the sixth line, after the first `Tenant'
insert a period and delete the remainder of the paragraph.
45.3 In Section 8.4, in the last line, after `Demised Premises' insert
"unless the Demised Premises are rendered untenantable thereby for five (5)
consecutive business days in which event Tenant may xxxxx paying Base Annual
Rent from said fifth (5th) day until the Demised Premises are again tenantable".
46. DAMAGE
46.1 In Section 9.1, in the fifth line, delete `ten (10)' and
substitute "thirty (30)".
46.2 In Section 9.3(a)(i), in the first line, after `partially' insert
"[more than Thirty Percent (30%)]".
46.3 In Section 9.3(a)(ii)(2), in the seventh line, change `sixty
(60)' to "thirty (30)"; in the tenth line, delete `one hundred twenty (120)' and
substitute "ninety (90)"; and in each of the thirteenth and fourteenth lines,
delete `120' and substitute "90".
46.4 In Section 9.3(a)(iii), in the first line, delete `Section 9.3'
and substitute "Lease".
47. DEFAULTS AND REMEDIES
47.1 In Section 12.3, in the twelfth line, after `sole' insert ",but
reasonable,".
47.2 Section 12.6 is deleted entirely.
47.3 In Section 12.9(a), delete the first three (3) sentences
entirely.
47.4 Sections 12.9(b) and (c) are deleted entirely.
47.5 In Section 12.11, in the first line, after `any' insert
"eviction"; and in the third line, after `proceeding' insert ", unless
required to do so under the court rules".
47.6 In Section 12.13, in the second line, after `entire' insert
"reasonable" and after `hereunder' insert a period and delete the remainder of
the paragraph.
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48. SUBORDINATION
48.1 In Section 13.1, in each of the six and ninth lines, delete `ten
(10)' and substitute "fifteen (15)".
48.2 In Section 13.2, in each of the first, sixteenth and nineteenth
lines, delete `ten (10)' and substitute "fifteen (15)".
49. TENANT'S HOLDOVER
49.1 In Section 14.2, in the third line, delete `three' and
substitute "one and one-half".
50. TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES
50.1 Section 21.4 is deleted entirely.
50.2 At the end of Section 21, add the following:
LANDLORD'S REPRESENTATION. Landlord represents that, as of the date hereof,
Landlord is not in receipt of any violation notice regarding Hazardous
Substances that affects the Demised Premises or the Building.
51. BROKERS AND COMMISSIONS
51.1 Section 34 is hereby deleted in its entirety and the following is
substituted therefor:
"Landlord and Tenant each hereby represents and warrants that, in
connection with this Lease, each did not retain, consult or deal with any broker
or real estate agent, salesperson or finder (other than Landlord's Agent), and
there is no commission, charge, or other compensation due on account thereof in
regard thereto, excepting only The Bank Companies, and Xxxxxxx X. Xxxxx Real
Estate Services L.P., both of whose commissions are the responsibility of
Landlord. Each party hereto shall indemnify and hold harmless the other (and
Tenant shall also indemnify and hold harmless Landlord's Agent) against and from
any claims for brokerage or other commissions by reason of a breach of the
indemnifying party's foregoing representation and warranty. Tenant shall pay, or
upon demand reimburse Landlord and Landlord's Agent for, all costs and expenses,
including attorneys' fees, necessary to remove from record any lien filed
against the rents payable pursuant to this Lease and/or against the Demised
Premises and/or the Building, by reason of a breach by Tenant of the foregoing
representation and warranty. The rights, obligations, warranties and
representations in this Section shall survive the expiration or sooner
termination of the Lease Term.".
52. LEGAL COMPLIANCE
52.1 Landlord shall abide by all laws and regulations applicable to
the Building.
53. EXECUTION OF DOCUMENT
53.1 In the event Tenant does not execute and return this document by
the close of business on May 29, 1998, then Landlord may market the subject
space to others without further notice to Tenant.
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EXHIBIT C
BUILDING RULES AND REGULATIONS
1. Tenant shall not obstruct or interfere with the rights of other tenants
of the Building or the Complex, or of persons having business in the
Building or the Complex, or in any way injure or annoy such tenants or
persons. Tenant will not conduct any activity within the Demised Premises
which will create excessive traffic or noise anywhere in the Building or
the Complex. Tenant shall not bring or keep within the Building any
animal, bicycle, motorcycle, or type of vehicle except as required by
law.
2. Tenant shall promptly report to Landlord's Agent all accidents and
incidents occurring on or about the Demised Premises, the Building and/or
the Complex which involve or relate to the security and safety of persons
and/or property.
3. Tenant shall use and occupy the Demised Premises only for the purposes
specified in Section 1.8 of the Lease and for no other purpose
whatsoever, and shall comply, and cause its employees, agents,
contractors, invitees and other users of the Demised Premises to comply,
with applicable zoning and other municipal regulations, including but not
limited to smoking regulations. Canvassing, soliciting and peddling in
the Building or anywhere in the Complex are prohibited, and Tenant shall
cooperate to prevent such activities.
4. All office equipment and any other device of any electrical or
mechanical nature shall be placed by Tenant in the Demised Premises in
settings approved by Landlord, so as to absorb or prevent any vibration,
noise, or annoyance. Tenant shall not construct, maintain, use or operate
within the Demised Premises or elsewhere in the Building or outside of
the Building any equipment or machinery which produces music, sound or
noise, which is audible beyond the Demised Premises. Tenant shall not
cause objectionable noises, vibrations or odors within the Building.
5. Tenant shall not deposit any trash, refuse, cigarettes, or other
substances of any kind within or out of the Building, except in the
refuse containers provided therefor. No material shall be placed in the
trash boxes or receptacles if such material is of such nature that it may
not be disposed of in the ordinary and customary manner of removing and
disposing of office building trash and garbage without being in violation
of the Lease or any law or ordinance governing such disposal. Tenant
shall be charged the cost of removal for any items left by Tenant that
cannot be so removed. All garbage and refuse disposal shall be made only
through entry ways and elevators provided for such purposes and at such
times as Landlord shall designate. Tenant shall not introduce into the
Building any substance which might add an undue burden to the cleaning or
maintenance of the Demised Premises or the Building. Tenant shall
exercise its best efforts to keep the sidewalks, entrances, passages,
courts, lobby areas, garages or parking areas, elevators, escalators,
stairways, vestibules, public corridors and halls in and about the
Building (hereinafter "Common Areas") clean and free from rubbish. Tenant
shall not cause any unnecessary labor by reason of Tenant's carelessness
or indifference in the preservation of good order and cleanliness.
6. Tenant shall use the Common Areas only as a means of ingress and egress,
and Tenant shall permit no loitering by Tenant's agents, employees,
visitors or invitees upon Common Areas or elsewhere within the Building.
Tenant shall comply, and cause its employees, agents, contractors,
invitees and other users of the Demised Premises to comply, with all
rules and regulations adopted by Landlord governing the use of the Common
Areas. The Common Areas and roof of the Building are not for the use of
the general public, and Landlord shall in all cases retain the right to
control or prevent access thereto by all persons whose presence, in the
judgment of Landlord, shall be prejudicial to the safety, character,
reputation or interests of the Building and its tenants. Tenant shall not
enter or install equipment in the mechanical rooms, air conditioning
rooms, electrical closets, janitorial closets, or similar areas or go
upon the roof of the Building without the prior written consent of
Landlord. Tenant shall not install any radio or television antenna,
loudspeaker, or other device on the roof or exterior walls of the
Building. Tenant shall not, nor shall Tenant's agents, employees or
contractors, enter or install equipment in or at the equipment room(s) or
closet(s), inside telecommunications and/or data transmission wire space
and/or conduits or the telephone wire demarcation point in the Building
without Landlord's prior consent.
7. Without limitation upon any of the provisions of the Lease, Tenant shall
not xxxx, paint, drill into, cut, string wires within, or in any way
deface any part of the Building, without the prior written consent of
Landlord, and as Landlord may direct. Upon removal of any wall
decorations or installations or floor coverings by Tenant, any damage to
the walls or floors shall be repaired by Tenant at Tenant's sole cost and
expense. Tenant shall not lay linoleum or similar floor coverings so that
the same shall come into direct contact with the floor of the Demised
Premises and, if linoleum or other similar floor covering is to be used,
an interlining of builder's deadening felt shall be first affixed to the
floor, by a paste or other materials soluble in water. The use of cement
or other similar adhesive material is expressly prohibited. Floor
distribution boxes for electric and telephone wires must remain
accessible at all times.
8. Tenant shall not install or permit the installation of any awnings,
shades, mylar films or sunfilters on windows. Tenant shall cooperate with
Landlord in obtaining maximum effectiveness of the cooling system of the
Building by closing drapes and other window coverings when the sun's rays
fall upon windows of the Demised Premises. Tenant shall not obstruct,
alter or in any way impair the efficient operation of the Systems, nor
shall Tenant tamper with or change the setting of any thermostat or
temperature control valves in the Building (this is not applicable in VAV
buildings). Tenant shall not cover induction units.
Exh. C-1
83
9. Tenant shall not use the washrooms, restrooms and plumbing fixtures of
the Building, and appurtenances thereto, for any purpose other than the
purpose for which they were constructed, and Tenant shall not deposit any
sweepings, rubbish, rags, or toxic or flammable products, or other
improper substances, therein. Tenant shall not waste water by interfering
or tampering with the faucets or otherwise. If Tenant or Tenant's
employees, agents, contractors, jobbers, licensees, invitees, guests or
visitors cause any damage to such washrooms, restrooms, plumbing fixtures
or appurtenances, such damage shall be repaired at Tenant's expense, and
Landlord shall not be responsible therefor.
10. Subject to applicable fire or other safety regulations, all doors
opening onto Common Areas and all doors upon the perimeter of the Demised
Premises shall be kept closed and, during non-business hours, locked,
except when in use for ingress or egress. If Tenant uses the Demised
Premises after regular business hours or on non-business days, Tenant
shall lock any entrance doors to the Building or to the Demised Premises
used by Tenant immediately after using such doors. Tenant shall cooperate
with energy conservation by limiting use of lights to areas occupied
during non-business hours.
11. Employees of Landlord shall not receive or carry messages for or to
Tenant or any other person, nor contract with nor render free or paid
services to Tenant or Tenant's employees, contractors, jobbers, agents,
invitees, licensees, guests or visitors. In the event that any of
Landlord's employees perform any such services, such employees shall be
deemed to be the agents of Tenant regardless of whether or how payment is
arranged for such services, and Tenant hereby indemnifies and holds
Landlord harmless from any and all liability in connection with any such
services and any associated injury or damage to property or injury or
death to persons resulting therefrom.
12. All keys to the exterior doors of the Demised Premises shall be obtained
by Tenant from Landlord, and Tenant shall pay to Landlord a reasonable
deposit determined by Landlord from time to time for such keys. Tenant
shall not make duplicate copies of such keys. Tenant shall, upon the
termination of its tenancy, provide Landlord with the combinations to all
combination locks on safes, safe cabinets, and other key-controlled
mechanisms therein, whether or not such keys were furnished to Tenant by
Landlord. In the event of the loss of any key furnished to Tenant by
Landlord, Tenant shall pay to Landlord the cost of replacing the same or
of changing the lock or locks opened by such lost key if Landlord shall
deem it necessary to make such a change. The word "key" as used herein
shall refer to keys, keycards, and all such means of obtaining access
through restricted access systems.
13. No signs, advertisements or notes shall be painted or affixed on or to
any windows, doors or other parts of the Building visible from the
exterior (other than as expressly permitted by the terms of the Lease),
or to any Common Area or public area of the Building.
14. Landlord will provide and maintain a directory board for the Building,
in the main lobby of the Building, and no other directories shall be
allowed.
15. All contractors, contractors' representatives and installation
technicians tendering any service to Tenant shall be referred by Tenant
to Landlord for Landlord's supervision, approval and control before the
performance of any contractual service. This provision shall apply to all
work performed in the Building.
16. After initial occupancy, movement in or out of the Building of furniture
or office equipment, or dispatch or receipt by Tenant of any bulky
material, merchandise or material which requires use of elevators shall
be restricted to the use of freight elevators only. Absolutely no carts
or dollies are allowed through the main entrances or on passenger
elevators. All items not hand carried must be delivered via the
appropriate loading dock and freight elevator, if any.
17. No portion of the Demised Premises shall at any time be used or occupied
as sleeping or lodging quarters.
18. Landlord shall have the power to prescribe the weight and position of
safes and other heavy equipment, which shall in all cases, to distribute
weight, stand on supporting devices approved by Landlord. All damages
done to the Building by taking in or putting out any property of Tenant,
or done by Tenant's Property while in the Building, shall be repaired at
the expense of Tenant.
19. For purposes hereof, the terms "Landlord", "Landlord's Agent", "Tenant",
"Complex", "Building", "Demised Premises", "Tenant's Property" and
"Systems" are defined in the Lease to which these rules and regulations
are attached. Wherever these terms appear in the rules and regulations
they shall have the same meaning as defined in the Lease.
20. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the
agreements, covenants, conditions and provisions of any lease of any
premises in the Building.
Exh. C-2
84
EXHIBIT "D"
MINIMUM CLEANING SERVICES BY LANDLORD
A. DAILY - Monday through Friday, except legal holidays.
1. Empty waste baskets, clean ashtrays.
2. Dust accessible areas of desk tops.
3. Vacuum carpet in all areas of the Demised Premises.
4. Mop spillages on tile floors.
5. Clean lavatories and replace supplies.
6. Dust and mop kitchens within the Demised Premises, provided that
Tenant shall be responsible for the cleaning of any dishes,
glasses or utensils in the kitchen areas. Tenant shall maintain
any coffee pots and utensils located in the Demised Premises.
B. WEEKLY
1. Dust accessible areas of furniture, convectors and other
furnishings.
2. Clean glass in doors and partitions.
C. MONTHLY
1. Mop and buff tile floors.
2. Dust venetian blinds, window frames and exterior of lighting
fixtures.
3. Spot clean walls.
4. Clean telephones.
D. QUARTERLY
1. Clean and refinish tile floors where necessary.
2. Clean baseboards.
E. SEMI-ANNUALLY
1. Wash windows.
F. ANNUALLY
1. Wash light fixtures and lenses.
2. Clean venetian blinds.
NOTE: Cleaners will not move papers or other materials from surfaces to
be cleaned, dusted or vacuumed. Trash not in wastebaskets should
be clearly marked "TRASH". Cleaning of private kitchens and baths
is the responsibility of the Tenant.
85
EXHIBIT "G"
The "Rentable Area" of the Building and the Demised Premises shall be
determined by Landlord's architect and as used herein shall refer to
(a) in the case of a single tenancy floor, all floor area measured
from the inside dominant surface of the opposite outer wall excluding outer
glass or finished column wall of the Building to the inside dominant surface of
the opposite outer wall excluding only the areas ("service areas") within the
outside walls which are major vertical penetrations used for building stairs,
fire towers, elevator shafts, flues, vents, stacks, pipe shafts and vertical
ducts but including columns or projections necessary to the Building and any
such service area penetrations under 64 square inches and any such service areas
which are for the specific use of the particular tenant such as special stairs,
dumbwaiters, lifts, or elevators plus any areas exclusively serving only that
floor or tenant, such as elevator lobbies, public corridors, toilets, janitors'
closets, electrical closets, mechanical spaces, telephone closets, etc., plus an
allocation of the square footage of the Building's elevator rooms and main
mechanical and electrical rooms, management office, atriums, the main floor
lobby areas, and other areas necessary to provide customary services to the
Building. And
(b) in the case of a floor to be occupied by more than one (1) tenant,
all floor areas within the inside dominant surface of the outer glass or
finished column walls enclosing the Demised Premises and measured to the
mid-point of the wall separating areas leased by or held for lease to other
tenants or from areas devoted to corridors, elevator lobbies, rest rooms,
mechanical rooms, janitors' closets, and other similar facilities for the use of
all tenants on the particular floor (hereinafter called "common areas"), but
including a proportionate part of the common areas located on such floor based
upon the ratio which the tenant's Rentable Area (excluding common areas) on such
floor bears to the aggregate Rentable Area (excluding common areas) on such
floor plus an allocation of the square footage of the Building's elevator rooms
and main mechanical and electrical rooms, management office, atriums, the main
floor lobby areas, and other areas necessary to provide customary services to
the Building. No deductions from Rentable Area shall be made for columns or
projections necessary to the Building or for service area penetrations under 64
square inches within the Demised Premises, or for any such service areas which
are for the specific use of the particular tenant such as special stairs,
dumbwaiters, lifts or elevators, or for any areas serving exclusively that
tenant, such as toilets, janitors' closets, electrical closets, mechanical
spaces, telephone closets, etc.
86
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT made as of this 30th day of November, 1998, is
entered into by and between ISG Solutions (hereinafter referred to as
Sublessor), and OTG Software (hereinafter referred to as Sublessee).
WITNESSETH:
WHEREAS, Sublessor has leased approximately 2,710 rentable square feet on
the seventh (7th) floor of the office building located at 0000 Xxxxxxxxx
Xxxxxxxxx pursuant to the lease dated June 23rd, 1998 between Sublessor as
Lessee and First Rock Spring Park Limited Partnership as Lessor (the "Lease"), a
copy of which is attached hereto and made a part thereof; and
WHEREAS, Sublessee desires to sublease from Sublessor approximately 2,710
rentable square feet of the above space set forth in Exhibit A hereof
(hereinafter referred to as "Subleased Premises") measured in accordance with
the Modified Washington D.C. Association of Realtors Method of Measurement; and
WHEREAS, Sublessor desires to sublease said space to Sublessee.
NOW, THEREFORE, Sublessor and Sublessee hereby agree, on behalf of
themselves, their successors and assigns, as follows:
1. SUBLEASE PREMISES
Sublessor, subject to written consent of Lessor, hereby leases (the "Sublease")
to Sublessee and Sublessee hereby leases from Sublessor subject to the terms,
provisions, and conditions contained in both this Sublease Agreement and the
Lease, the Subleased Premises.
2. SUBLEASE TERM
The Sublease term ("Sublease Term") begins as of January 1, 1999 and ends on May
31, 2003.
3. BASE RENT
Sublessee agrees to pay Sublessor as rent hereunder, the sum of seventy three
thousand one hundred and seventy Dollars ($73,170) annually, payable in equal
monthly installments of six thousand ninety seven dollars and fifty cents
Dollars ($6,097.50) in advance on the first day of each calendar month during
the Sublease Term. All payments shall be due without billing or demand and
without deduction, set-off or counter claim. If the date of the commencement of
the Sublease Term is other than the first day of the month, rent shall be paid
for the first month on a pro rata basis. All payments shall be made at
Sublessor's office at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, XX 00000, to the
attention of Mr. Xxxxxxx Xxxxxx.
4. BASE RENT ADJUSTMENT
The Base Rent shall be increased commencing on June 1, 1999 and each year
thereafter in an amount equal to three (3%) percent of the annual rent.
5. OPERATING EXPENSES AND REAL ESTATE TAXES
Sublesee agrees to pay Sublessors pro rata share of operating expenses and real
estate taxes as passed through by Lessor to Sublessor in accordance with
provisions of the prime lease. Sublesee's operating expense and real estate tax
pro rata share is one and twenty-one hundredths percent (1.21%).
6. DELIVERY OF THE SUBLEASED PREMISES
The Subleased Premises shall be delivered by Sublessor to Sublessee in "as-is"
condition. Sublessee has inspected the Subleased Premises and found them
acceptable for their intended use. Notwithstanding the afformentioned,
Sublessor agrees to contribute five thousand four hundred and twenty dollars
($5,420.00) per rentable square foot toward tenant improvements to the Premises.
7. CONDITION OF THE SUBLEASED PREMISES
Upon the expiration or termination of the term of this Sublease Agreement,
Sublessee shall deliver the possession of the Subleased Premises to Sublessor in
the same general condition as at the commencement of the Sublease, subject to
ordinary wear and tear.
87
8. QUIET ENJOYMENT
Sublessor covenants that so long as Sublessee not be in default of the Sublease,
Sublessee may freely, peaceably and quietly occupy and enjoy full possession of
the Subleased Premises without molestation or hindrance by Sublessor or any
party claiming through or under Sublessor.
9. COVENANTS OF SUBLESSOR AND SUBLESSEE
The parties hereto agree that the Lease is incorporated herein by reference
dated June 23rd 1998. Sublessee agrees that it shall, at all times, keep,
observe, and perform the obligations to be performed by Sublessor as Lessee
under the said provisions of the Lease with respect to the Subleased Premises.
Sublessor shall have no obligation to perform the obligations of Lessor under
the Lease.
In cases where Sublessee must obtain consent from Sublessor, Sublessor will not
unreasonably condition, withhold, or delay such consent provided the consent of
Lessor is not required under the Lease; in no case must Sublessor give its
consent if Lessor has not given its consent. In cases where Sublessor must
request consent from Lessor, Sublessor will not unreasonably delay requesting
such consent.
10. DEFAULT OF SUBLESSEE
If Sublessee shall fail to pay any installment of rent when due hereunder or
shall default in the observance or performance of any conditions or covenants to
be kept, observed or performed by Sublessee hereunder, or shall Default under
any of the terms of the Lease incorporated herein, then Sublessor shall have and
may exercise all rights and remedies against Sublessee as provided to Lessor in
the event of default by Sublessor as set forth in the Lease. Any overdue payment
shall bear interest at five (5) percentage points above the then prime rate of
interest (or comparable rate of interest) per annum as published in the money
market section of The Wall Street Journal or in another material financial
publication reasonably selected by Sublessor or Lessor accruing from the date
such installment or payment becomes due to the date payment is made by
Sublessee.
11. ASSIGNMENT AND SUBLETTING
Sublessee will not assign this Sublease Agreement nor sublet the Subleased
Premises or any portion thereof without prior written consent of Sublessor and
Lessor. Should Sublessee wish to sublease, Sublessor shall use reasonable
efforts to obtain Lessor's approval to sublease and Sublessor shall not
unreasonably withhold or delay its consent thereof. No assignment or Sublease
shall release Sublessee from liability hereunder.
12. BROKERS
Sublessor and Sublessee both represent and warrant that they have not employed
any brokers other than The Bank Companies in carrying on the negotiations of
this Sublease Agreement.
13. PAYMENT OF ATTORNEY'S FEES
In the event of the employment of an attorney by Sublessor because of the
violation by Sublessee of any term or provisions of this Sublease Agreement,
including non-payment of rent as due, Sublessee shall pay, and agrees to pay,
reasonable attorney's fees, and all other reasonable costs incurred by Sublessor
as a result of the violation by Sublessee.
14. INDEMNIFICATION AND LIABILITY
Sublessee shall defend, indemnify and hold Sublessor harmless from any and all
damages, losses, claims and costs (including attorneys fees) arising out of or
relating to Sublessee's use or occupancy of the Subleased Premises. Sublessor
shall not be liable to Sublessee for any loss of property relating to
Sublessee's use or occupancy of the Subleased Premises.
15. USE OF DEMISED PREMISES
Sublessee shall use and occupy the Subleased Premises solely for general office
purposes.
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88
16. SUBLEASE SUBORDINATE TO LEASE
This Sublease shall be subject to and subordinate to the provisions of the
Lease. In the event any act or omission by Sublessee pursuant to the terms of
this Sublease would constitute an event of default under the Lease if committed
by Sublessor, such act or omission shall be deemed to be a default by Sublessee
hereunder.
17. SUBLESSOR NOT LIABLE FOR LESSOR'S OBLIGATIONS OR DEFAULTS
(a) Notwithstanding anything to the contrary contained in this
Sublease or in the Lease, Sublessor shall not be required to (i) provide any of
the services or construction that Lessor has agreed to provide pursuant to the
Lease (or as are required by law), (ii) provide any utilities (including
electricity) to the Subleased Premises that Lessor has agreed to furnish
pursuant to the Lease (or as are required by law), (iii) make any of the
repairs that Lessor has agreed to make pursuant to the Lease (or as are
required by law), (iv) comply with any laws or requirements of any governmental
authorities regarding the maintenance or operation of the Subleased Premises,
(v) take any other action that Lessor has agreed to provide, furnish, make,
comply with, or take, or cause to be provided, furnished, made, complied with
or taken under the Lease, or (vi) provide Sublessee with any rebate, credit,
allowance or other concession required of Lessor pursuant to the Lease.
Further, Sublessor makes no covenant or representation made by Lessor under the
Lease.
(b) Sublessor agrees to use reasonable efforts, at Sublessee's sole
cost and expense, to cause Lessor to provide, furnish, or comply with the
foregoing provisions pursuant to the Lease (provided, however, that Sublessor
shall not be obligated to use such efforts or take any action which might give
rise to a default under the Lease). If Lessor shall default in the performance
of any of its obligations under the Lease, Sublessor shall, upon request and at
the expense of Sublessee, cooperate with the Sublessee in the prosecution of
any action or proceeding which Sublessee, in its reasonable judgement, deems
meritorious, in order to have Lessor make such repairs, furnish such
electricity, provide such services or comply with any other obligation of
Lessor under the lease or as required by law.
(c) Sublessee shall defend, indemnify and hold harmless Sublessor from
and against (i) any and all of the aforementioned claims arising from or in
connection with such request, action or proceeding, and (ii) any dispute, claim,
or cost (including attorney's fees) arising from any conflict whatsoever
concerning the Lease regarding actions or omissions of Sublessee (other than
Sublessee's execution of this Sublease). This indemnity and hold harmless
agreement shall include indemnity from and against any and all liability, fines,
suits, demands, costs and expenses of any kind or nature, including, without
limitation, reasonable attorney's fees and disbursements, incurred in connection
with any such claim, action or proceeding brought thereon.
(d) Sublessee shall not make any claim against Sublessor for any
damage which may arise by reason of (i) the failure of Lessor to keep, observe
or perform any of its obligations pursuant to the Lease, unless such failure is
due to Sublessor's negligence, misconduct, or failure to comply with the
provisions of this Sublease; or (ii) the acts or omissions of Lessor or
Sublessee or their respective agents, contractors, servants, employees, invitees
or licensees.
18. ALTERATIONS
Sublessee shall not make any alteration, improvement, decoration, or
installation (hereinafter called "Alterations") in or to the Subleased Premises,
without in each instance obtaining the prior written consent of Lessor and
Sublessor.
Sublessee may have any Alterations performed by contractors of its own choice,
at its expense, provided that Sublessee has obtained written approval of the
contractor by Lessor and Sublessor, which approval of Sublessor will be based
upon the contractor's being properly licensed and his financial posture,
experience and past job performance. The design of all Alterations undertaken by
Sublessee shall be subject to prior written approval of Lessor and Sublessor and
shall not be commenced until such approval is obtained. With reasonable notice
to Sublessee, Lessor and Sublessor shall at all times have the right to inspect
the work performed by any contractor selected by Sublessee during normal
business hours.
Sublessee shall, upon request of Lessor or Sublessor, remove said Alterations,
repair all damage resulting from such removal and restore the Subleased Premises
to the condition as of the date possession was delivered to Sublessee, however,
Lessor or Sublessor shall notify Sublessee of such requirement at the time
Sublessee requests approval of any Alteration. If Sublessee fails or refuses to
remove such Alterations, or fails to correct, repair and restore the Subleased
Premises, Lessor or Sublessor may cause the same to be removed, and repairs and
restoration to be made, in which event Sublessee shall reimburse to the party
who caused said Alterations to be removed and repairs made, the cost of such
removal, repairs and restoration, together with any and all damages which Lessor
or Sublessor may suffer and sustain by reason of Sublessee's failure or refusal
to remove said Alterations.
19. LESSOR'S CONSENT
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89
(a) This Sublease shall be effective upon obtaining the written
consent of Lessor (Lessor's consent to sublease form, Exhibit B) and it is
hereby acknowledged by Sublessor and Sublessee that Lessor's consent to this
Sublease shall not create any contractual liability or duty on the part of
Lessor or its agent to the Sublessee, and shall not in any manner increase,
decrease or otherwise affect the rights and obligations of Lessor and Sublessor,
as the Lessee under the Lease, with respect to the Subleased Premises.
(b) Sublessor and Sublessee shall not amend this Sublease without
Lessor's prior written consent, and any such amendment made or entered into
without Lessor's consent shall be null and void.
20. GENERAL PROVISIONS
(a) During the term of this Sublease Agreement, Sublessee shall
maintain liability and personal property insurance covering the Subleased
Premises and Sublessee's property therein in such amounts no less than required
under the Lease.
(b) The waiver by Sublessor of a breach of covenant, obligation, or
condition set forth herein shall not be deemed to be a waiver of any subsequent
breach of the same or of any other covenant, obligation, or condition of this
Sublease Agreement.
(c) This Sublease Agreement shall be governed by and construed in
accordance with the Laws of the State of Maryland.
(d) Sublessor shall have the right to inspect the Sublease Premises
during business hours upon reasonable notice.
(e) This Sublease Agreement constitutes the entire agreement between
the parties hereto and may not be modified except by a written instrument
executed by both parties hereto.
(f) If any provision of this Sublease is declared invalid or
unenforceable, the remainder of this Sublease Agreement shall continue in full
force and effect.
(g) Paragraph headings are used herein solely for convenience of
reference and are not to be construed as part of this Sublease Agreement.
21. LEASE CONTINGENCY
This Sublease shall be contingent on Sublessor receiving a fully executed Lease
from 0000 Xxxxxxxx Xxxxxxxxx.
22. NOTICES
All notices, demands, or requests between Sublessor and Sublessee shall be
delivered in person, by certified mail, return receipt requested, or by
registered mail:
If to Sublessor: If to Sublessee:
Mr. Xxxxxxx Xxxxxx Mr. F. Xxxxxxx Xxxxx
ISG Solutions OTG Software
0000 Xxxxxxxx Xxxxxxxxx 6701 Democracy Boulevard
3rd Floor - 000 0xx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
WITNESS: OTG Software
/s/ Xxxxxxxx X. Xxxxxx By: /s/ F. Xxxxxxx Xxxxx
------------------------------- ------------------------------
WITNESS: ISG Solutions
[SIG] By: /s/ Xxxxxxx Xxxxxx
------------------------------- ------------------------------
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90
SUBLEASE AGREEMENT
This Lease Agreement is made on this 22nd day of January, 1999, at
Newport Beach, California between DIVERSIFIED BUSINESS SERVICES, INC.
(hereinafter "Lessor" or "DBS") and, OTG SOFTWARE, INC. (hereinafter "Lessee" or
"Tenant").
I. PREMISES
DBS hereby leases to Lessee and Lessee hereby hires from DBS, the property
hereinafter referred to as the "subject premises" located in the City of Irvine,
County of Orange, State of California, and more particularly described as 00000
Xxx Xxxxxx Xxxxxx, Xxxxx 000, Office No. 17 (Exhibit "A").
II. TERM
The term of this Lease shall be for 6 months, commencing on the 1st day of
February, 1999, and ending on the 3lst day of July, 1999. Said rental term shall
be automatically extended for the same period and all provisions applicable to
the initial lease term shall apply to the extended lease term(s) with the
exception of renewal rate, unless Lessee gives Lessor or Lessor gives Lessee
written notice of cancellation of this renewal provision at least thirty (30)
days prior to the expiration of any lease term. For the purpose of
interpretation, a thirty day notice specifically means on or before the first
day of the last month of occupancy.
III. RENT & RENT DEPOSIT
Tenant shall pay as rent to DBS the sum of Eight Hundred Seventy-Five &
00/100 Dollars ($ 875.00 ) as the first month's rent and the sum of Eight
Hundred Seventy-Five & 00/100 Dollars ($ 875.00 ) as a deposit against payment
of rent for the last month of occupancy under this Sublease Agreement;
thereafter, on or before the first day of each succeeding month, Lessee shall
pay the sum of Eight Hundred Seventy-Five & 00/100 Dollars ($ 875.00).
In the event payment of rent is made after the fifth (5) day of the month,
an automatic late charge of 10% ($ 87.50 ) will be charged and must be included
with rental payment. A $25 charge will be paid by the Lessee to the Lessor for
each returned check.
The deposit for payment of the final month's rent provided for hereunder
may be used by Lessor for any purpose, free of trust, and no interest shall be
paid to Lessee thereon.
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IV. SET-UP FEE
Lessee acknowledges that Lessee has inspected the subject premises prior to
taking occupancy and that the subject premises are clean and in good repair. On
or before occupancy, Lessee shall pay Lessor the sum of Two Hundred & 00/100
Dollars ($ 200.00 ) for payment of expenses incurred by Lessor for door sign(s),
directory signs, keys, and general administrative set-up of account.
V. USE OF PREMISES
The subject premises shall be used by Lessee as a business office and for
uses normally incident thereto and for no other purpose. Lessee shall allow no
hazardous or noxious materials to be stored at the subject premises and Lessee
shall allow no activities on the subject premises which are illegal or otherwise
constitute a nuisance or disturbance to other tenants of the building.
VI. COVENANTS OF TENANT/LESSEE
Tenant covenants and agrees to pay each monthly installment of rent
provided for herein on or before the due date, to use the subject premises for
the purpose hereinabove stated, and to surrender the subject premises, together
with appropriate office and building keys, upon the termination of tenancy in as
good condition as existed at the date of initial occupancy, reasonable wear and
tear excepted.
(a) Default: The occurrence of any of the following shall constitute a
material default and breach of this Lease by Lessee: 1) Any failure by Lessee to
pay rent or to make any other payments required to be made by Lessee hereunder,
after written notice; 2) The abandonment or vacation of the Premises by Lessee,
bankruptcy of Lessee or assignment for benefit of creditors; 3) A failure by
Lessee to observe and perform any other provision of this Lease to be observed
or performed by Lessee, where such failure continues for thirty (30) days after
written notice thereof by Lessor to Lessee.
In the event of any such default by Lessee, then in addition to any
other remedies available to Lessor at law or in equity, Lessor shall have the
immediate option to terminate this Lease and all rights of Lessee hereunder by
giving written notice of such intention to terminate. In the event that Lessor
shall elect to so terminate this Lease then Lessor may recover from Lessee any
unpaid rent plus interest on said unpaid rental at the rate of ten percent (10%)
per annum.
In the event of any such default by Lessee, Lessor shall also have the
right, with or without terminating this Lease, to re-enter the Premises and
remove all persons and property from the Premises; such property may be removed
and stored in a public warehouse or elsewhere at the cost of and for the account
of Lessee.
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(b) Abandonment: Lessee shall not vacate or abandon the premises at any
time during the term and if Lessee shall abandon, vacate or surrender said
premises for a period of thirty (30) days or be dispossessed by process of law,
or otherwise, any personal property belonging to Lessee and left on the premises
shall be deemed to be abandoned.
(c) Keys: Lessee shall receive one key for each office leased and one key
for entry into main office. Lessee shall pay to Lessor the sum of $5.00 for each
key not returned at the expiration of this Lease, or for any additional
duplicate keys provided to Lessee. Tenant shall not alter any lock or install
additional locks or bolts on any door.
(d) Rules & Regulations: Lessee agrees to observe and comply with the
Building Rules and Regulations as specified on Exhibit "D-l" and the Parking
Rules and Regulations as specified on Exhibit "D-2" attached hereto.
(e) Lessor's Employees: Should Lessee elect to hire any of Lessor's
employees, during tenancy and/or for a one (1) year period following vacancy of
premises, a fee shall be paid to Lessor in the amount of $10,000.00 per employee
as compensation for Lessor's loss thereof, unless Lessor does not intend to
retain said employee(s).
(f) Copy Equipment: Lessee may maintain their own "desktop" copy equipment
inside the leased office. Free-standing machines and/or machines that require
additional electricity or dedicated circuitry are not permitted. Lessee also
agrees not to allow or solicit other clients on the premises to use Lessee's
copy equipment.
VII. COVENANTS OF DBS/LESSOR
Lessor agrees to pay for all utilities (excepting local and long distance
telephone service, which shall be billed separately as specified under Article
VIII) and janitorial service.
Rental payment includes telephone answering and reception services during
business hours (8 a.m. to 5 p.m.) Monday through Friday, use of the conference
room(s) by Tenant as reserved on an as-needed basis, and coffee service.
DBS shall provide office support services Monday through Friday during
business hours; a separate statement for those services based on the then
current rate sheet (Exhibit "B") shall be rendered at the end of each month and
is due and payable upon presentation. As charges represent costs for labor and
materials (such as postage, shipping charges, stationery supplies, local and
long distance telephone service, parking validations, etc.) that have been
incurred by DBS on behalf of the Lessee/Tenant during the previous monthly
accounting period; payment is due no later than the 10th day of each month
following presentation of this statement.
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VIII. TELEPHONE EQUIPMENT/SERVICE
Lessee shall pay for the installation and all charges pertaining to
Lessee's telephone service. Lessee shall pay directly to Lessor the cost of
connecting Lessee's telephone equipment and service (Exhibit "C") and the
monthly charges for telephone equipment, and all associated local and long
distance charges (a copy of these charges will be provided with the monthly
office services invoice).
IX. INSURANCE & PERSONAL PROPERTY TAXES
Tenant shall be responsible to provide insurance protection of personal
property and liability within the subject premises and shall hold DBS harmless
from any claim arising out of events occurring within the confines of the
subject premises. DBS shall provide liability insurance for the common areas
providing access to the subject premises for Tenant and Tenant's business
invitees. Lessee is responsible for payment of all taxes levied or assessed on
Lessee's personal property.
X. SUPERIOR LEASE
The parties hereby acknowledge that this Sublease Agreement is subordinate
to a Superior Lease. The building in which the subject premises is located is
owned by Atrium Irvine Limited Partnership. DBS has entered into a written lease
with Atrium Irvine Limited Partnership and Diversified Business Services, Inc.
dated February 2, 1995. The parties mutually acknowledge that this Sublease
Agreement is entered into with the knowledge of aforesaid Superior Lease. The
parties, and each of them, represent that they will do no act with respect to
the subject premises which would violate the terms of the Superior Lease as
defined in Exhibits D-l and D-2.
XI. SUCCESSORS AND ASSIGNS
The covenants and conditions herein contained shall be subject to the
provisions as to assignment, apply to and bind the heirs, successors, executors,
administrators and assigns of the parties hereto.
XII. MISCELLANEOUS
1. This Lease Agreement is entered into in the State of California and
shall be interpreted in accordance with the laws of the State of California.
2. This Lease Agreement constitutes the entire Agreement of the parties
with respect to the subject matter hereof.
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3. This Lease Agreement MAY NOT BE MODIFIED except in writing signed by
both parties.
4. In the event of any litigation between the parties arising out of this
Lease Agreement or the subject matter hereof, the prevailing party shall be
entitled to recover, in addition to costs, reasonable attorney's fees.
LESSOR: TENANT/LESSEE:
DIVERSIFIED BUSINESS SERVICES, INC. OTG SOFTWARE, INC.
By: /s/ XXXXX XXXXXXXX By: /s/ F. XXXXXXX XXXXX
------------------------------- -------------------------------
Xxxxx Xxxxxxxx F. Xxxxxxx Xxxxx
Title: President Title: Exec. V.P.
---------------------------- ----------------------------
Date: 2/24/99 Date: 2/9/99
---------------------------- -----------------------------
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EXHIBIT "A"
[OFFICE DIMENSIONS DIAGRAM]
[DBS INC. LOGO]
THE ATRIUM
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
Corporate Office (000) 000-0000
Office Dimensions Are Approximate
96
EXHIBIT "B"
ATRIUM
OFFICE SERVICES [DBS INC. LOGO]
PRICE LIST
================================================================================
WORD PROCESSING* ...................................................$24/hour
Letters, Reports, Proposals
POWERPOINT & EXCEL* ................................................$40/hour
Newsletters, Organization Charts,
Pie/Bar Charts, Tables, Presentations, etc.
SECRETARIAL* .......................................................$24/hour
Xeroxing, filing, telephone calls, typing, etc.
COMPUTER TRAINING ..................................................$50/hour
Software; Win95, Word, Excel, Powerpoint
RESUMES ............................................................$30 -- first page
$15 -- each addt'l page
RUSH/DIFFICULT SOURCE MATERIAL .....................................50% of total project
AFTER-HOURS CHARGE .................................................100% of total project
SPIRAL BINDING (Including covers) ..................................$4 -- $5/book
XEROX COPIES (any size + reduction/enlargement) ....................10 cents each
POSTAGE ............................................................Cost + 20%
UPS/FEDEX ..........................................................Cost + 30%
STATIONERY/SUPPLIES ................................................Cost + 30%
FACSIMILE ..........................................................$1/page + LD charges
ADDITIONAL VOICE MAIL BOXES ........................................$25 each per month
AUTO-PAGING ........................................................$30 Set-up fee; $20/month
CALL-PATCHING ......................................................45 cents per patched call
TELEPHONE ANSWERING ACCOUNT (CSA Agreement) ........................$120/month incl. line
BUSINESS ADDRESS & MAIL ACCOUNT (CSA Agreement) ....................$50/month
CONFERENCE ROOM RENTAL** (Outside clients) .........................$20/hour
ATRIUM BOARD ROOM** (Outside clients) ..............................$50/hour
* Billed in 15 minute increments; Non-Tenants pay $l2 minimum fee; Walk-in
customers may be required to pay a 50% deposit of estimated project. **ALL
CLIENTS will be charged $25 for the Conference Rooms, and $50 for the Board Room
for failure to cancel reservations without 24 hours notice. Effective 7/1/98.
Rates and services are subject to change.
97
EXHIBIT "C"
DIVERSIFIED BUSINESS SERVICES, INC.
TELEPHONE EQUIPMENT RENTAL & SERVICE AGREEMENT
Client Name: OTG SOFTWARE, INC.
-------------------------------------------------------------------
Principal: Xxxx While (local)
---------------------------------------------------------------------
Telephone No(s) to be installed: Voice- (000) 000-0000
----------------------------
Dedicated- Modem: 477-8039
----------------------------
Due Date: 2/23/99
-------------------------
===========================================================================================================================
EQUIPMENT LOCATION COM LINE NO. NO. OF SETS NO. OF LINES NO. OF FAX/MODEM LINES
===========================================================================================================================
Office No. 17 3254 1 1 / 1
------------------- ----------- --------- ----------- ----------------
Office No.
------------------- ----------- --------- ----------- ----------------
Office No.
------------------- ----------- --------- ----------- ----------------
Office No.
------------------- ----------- --------- ----------- ----------------
---------------------------------------------------------------------------------------------------------------------------
INSTALLATION CHARGE: 1 Voice Lines-$50.00 each = $ 50.00
----------- ----------------
1 Instruments-$50.00 each = $ 50.00
----------- ----------------
1 Dedicated Lines-$50.00 each = $ 50.00
----------- ----------------
Additional Equipment and/or Wiring -
---------------- $ ----------------
-----------------------------------------------------
-----------------------------------------------------
$ 150.00
TOTAL INSTALLATION: ================
---------------------------------------------------------------------------------------------------------------------------
MONTHLY SERVICE 1 Voice Lines - $20.00 each = $ 20.00
CHARGE: ----------- ----------------
1 Instruments - $50.00 each = $ 50.00
----------- ----------------
1 Dedicated Lines- $20.00 each = $ 20.00
----------- ----------------
Additional Voice Mail Boxes-
-----------
$25.00 each = $
----------------
TOTAL MONTHLY
EQUIPMENT/SERVICE: $ 90.00
================
===========================================================================================================================
This agreement provides for equipment rental and service only; it is not a
purchase contract, and all equipment remains the property of Diversified
Business Services, Inc.
By: /s/ F. Xxxxxxx Xxxxx Date: 2/10/99
------------------------- ----------------------------------------
Initials:
Lessee [SIG]
--------
Lessor [SIG]
--------
98
EXHIBIT "C"
DIVERSIFIED BUSINESS SERVICES, INC.
TELEPHONE EQUIPMENT RENTAL & SERVICE AGREEMENT
Client Name: OTG SOFTWARE, INC.
-------------------------------------------------------------------
Principal: Xxxx While (local)
---------------------------------------------------------------------
Telephone No(s) to be installed: Voice:
----------------------------
Dedicated:
----------------------------
Due Date:
-------------------------
===========================================================================================================================
EQUIPMENT LOCATION COM LINE NO. NO. OF SETS NO. OF LINES NO. OF FAX/MODEM LINES
===========================================================================================================================
Office No.
------------------- ----------- --------- ----------- ----------------
Office No.
------------------- ----------- --------- ----------- ----------------
Office No.
------------------- ----------- --------- ----------- ----------------
Office No.
------------------- ----------- --------- ----------- ----------------
---------------------------------------------------------------------------------------------------------------------------
INSTALLATION CHARGE: Voice Lines-$50.00 each = $
----------- ----------------
Instruments-$50.00 each = $
----------- ----------------
Dedicated Lines-$50.00 each = $
----------- ----------------
Additional Equipment and/or Wiring -
---------------- $ ----------------
-----------------------------------------------------
-----------------------------------------------------
$
TOTAL INSTALLATION: ================
---------------------------------------------------------------------------------------------------------------------------
MONTHLY SERVICE Voice Lines - $20.00 each = $
CHARGE: ----------- ----------------
Instruments - $50.00 each = $
----------- ----------------
Dedicated Lines- $20.00 each = $
----------- ----------------
Additional Voice Mail Boxes-
-----------
$25.00 each = $
----------------
TOTAL MONTHLY
EQUIPMENT/SERVICE: $
================
===========================================================================================================================
This agreement provides for equipment rental and service only; it is not a
purchase contract, and all equipment remains the property of Diversified
Business Services, Inc.
By: /s/ F. Xxxxxxx Xxxxx Date: 2/10/99
----------------------- -----------------------------------
Initials:
Lessee FWC
--------
Lessor [SIG]
--------
99
EXHIBIT "D-1"
BUILDING RULES & REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, bridges or halls shall not be obstructed or used for
any purpose other than ingress and egress. The bridges, halls, passages,
entrances, elevators, stairways, atrium and roof are not for the use of the
general public, and Landlord shall in all cases retain the right to control
and prevent access thereto of all persons whose presence, in the judgment
of Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with whom
Tenant normally deals only for the purpose of conducting its business on
the Premises (such as clients, customers, office suppliers and equipment
vendors, and the like) unless such persons are engaged in illegal
activities. No tenant and no employees of any Tenant shall go upon the roof
of the Building without the written consent of Landlord. No space facing
the interior of the atrium or any exterior terrace shall be used for the
storage of materials or in any other manner which would detract from the
appearance of the interior of the atrium or the exterior of the Building,
as determined by Landlord in its sole discretion.
2. No awnings or other projections shall be attached to the outside walls of
the building. No curtains, blinds, shades or screens shall be attached to
or hung in, or used in connection with, any window or door of the Premises
other than Landlord standard drapes. All electric ceiling fixtures hung in
offices or spaces along the perimeter of the Building must be fluorescent,
of a quality, type, design and bulb color approved by Landlord. neither the
interior nor the exterior of any windows shall be coated or otherwise
sunscreened without written consent of Landlord.
3. No sign, advertisement, notice or handbill shall be exhibited, distributed,
painted or affixed by any Tenant on, about or from any part of the Premises
or the Building or the Project without the prior written consent of
Landlord. If Landlord shall have given such consent at the time, whether
before or after the execution of this Lease, such consent shall in no way
operate as a waiver or release of any of the provisions hereof or of this
Lease, and shall be deemed to relate only to the particular sign,
advertisement or notice so consented to by Landlord and shall not be
construed as dispensing with the necessity of obtaining the specific
written consent of Landlord with respect to each and every such sign,
advertisement or notice other than the particular sign, advertisement or
notice, as the case may be, so consented to by Landlord. In the event of
the violation of the foregoing by any Tenant, Landlord may remove or stop
same without any liability, and may charge the expense incurred in such
removal or stopping to Tenant. Interior signs on doors and directory tablet
shall be inscribed, painted or affixed for each Tenant by Landlord at the
expense of such Tenant, and shall be of a size, color and style acceptable
to Landlord. The directory tablet will be provided exclusively for the
display of the name and location of Tenants only and Landlord reserves the
right to exclude any other names therefrom. Nothing may be placed on the
exterior of corridor walls or corridor doors other than Landlord's standard
lettering.
4. The sashes, sash doors, skylights, windows, and doors that reflect or admit
light and air into halls, passageways or other public places in the
Building shall not be covered or obstructed by any Tenant, nor shall any
bottles, parcels or other articles be placed on the window xxxxx. Tenant
shall see that the doors of the Premises are closed and securely locked
before leaving the building. Tenant shall exercise extraordinary care and
caution that all water faucets or water apparatus are entirely shut off
before Tenant or Tenant's employees leave the Building, and that all
electricity, gas or air shall likewise be carefully shut off, so as to
prevent waste or damage. Tenant shall cooperate with Landlord in obtaining
maximum effectiveness of the cooling system by closing drapes when the
sun's rays fail directly on the windows of the Premises. Tenant shall not
tamper with or change the setting of any thermostats or temperature control
valves.
5. The toilet rooms, water and wash closets and other plumbing fixtures shall
not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures shall
be borne by Tenant who, or whose subtenants, assignees or any of their
servants, employees, agents, visitors or licensees shall have caused the
same.
6. Tenant shall not xxxx, paint, drill into, or in any way deface any part of
the Premises, the Building or the Project. No boring, cutting or stringing
of wires or laying of linoleum or other similar floor coverings shall be
permitted, except with the prior written consent of Landlord and as
Landlord may direct.
7. No bicycles, vehicles, birds or animals of any kind shall be brought into
or kept in or about the Premises, and no cooking shall be done or permitted
by any Tenant on the Premises, except that the preparation of coffee, tea,
hot chocolate and similar items for Tenants and their employees and the use
of a microwave oven shall be permitted provided power shall not exceed that
amount which can be provided by a 30 amp circuit. No Tenant shall cause or
permit any unusual or objectionable odors carrying lighted cigars,
cigarettes or pipes in the elevators of the Building is prohibited.
8. The Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the permitted use
of the Premises or the Storage Area. No Tenant shall occupy or permit any
portion of the Premises to be occupied as an office for a public
stenographer or typist, or for the manufacture or sale of liquor, narcotics
or tobacco (except by a cigarette vending machine for use by Tenant's
employees) in any form, or as a medical office, or as a xxxxxx of manicure
shop, or as an employment bureau without the express written consent of
Landlord, No Tenant shall engage or pay any employees on the Premises
except those actually working for such Tenant on the Premises, nor
advertise for laborers giving an address at the Premises. The Premises
shall not be used for lodging or sleeping or for any immoral or illegal
purposes. Tenant shall comply with any govemmental regulations or
ordinances which limit the smoking of tobacco within the Premises.
9. No Tenant shall make, or permit to be made any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the
use of any musical instrument, radio, phonograph, unusual noise, or in any
other way, No Tenant shall throw anything from the terraces out of doors,
windows or skylight or down the passageways.
10. No Tenant, subtenant or assignee nor any of their servants, employees,
agents, visitors or licensees, shall at any time bring or keep upon the
Premises any inflammable, combustible or explosive fluid, chemical or
substance.
11. No additional locks (except to the extent Tenant provides to Landlord a
master key thereto) or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing
locks or the mechanisms thereof. Each Tenant must upon the termination of
his tenancy, restore to Landlord all keys of stores, offices, and toilet
rooms, either furnished to, or otherwise procured by, such Tenant and in
the event of the loss of keys so furnished, such Tenant shall pay to
Landlord the cost of replacing the same or of changing the lock or locks
opened by such lost key if Landlord shall deem it necessary to make such
changes.
12. All removals, or the carrying in or out of any safes, freight, furniture,
or bulky matter of any description must take place during the hours which
Landlord shall determine from time to time. The moving of safes or other
fixtures of bulky matter of any kind must be done upon previous notice to
the superintendent of the Building and under his supervision, and the
persons employed by any Tenant for such work must be acceptable to
Landlord. Landlord reserves the right to inspect all safes, freight or
other bulky articles to be brought into the Building and to exclude from
the Building all safes, freight or other bulky articles which violate any
of these Rules and Regulations or the Lease of which these Rules and
Regulations are a part. Landlord reserves the right to prescribe the weight
and position of all safes, which must be placed upon supports approved by
Landlord to distribute the weight.
13. No Tenant shall purchase bottled water, ice, towel, plant care, janitorial
or maintenance or other like services, from any person or persons not
approved by Landlord.
14. Landlord shall have the right to prohibit any advertising by any Tenant
which, in Landlord's opinion tends to impair the reputation of the Building
or the Project or its desirability as an office location and upon written
notice from Landlord any Tenant shall refrain from or discontinue such
advertising.
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15. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 8 a.m. and at all hours on Saturday, Sunday and legal
holidays ("Non Building Hours") all persons who are not known to the
building watchman and who do not present a pass to the Building approved
by Landlord. Landlord will furnish passes to persons for whom any Tenant
requests the same in writing. Tenant may have visitors to the Premises
during Non-Building Hours provided that Tenant: (1) informs the Building
watchman, in advance, of the arrival of such visitors, and (2) escorts
such visitors from the Building entrance or security office directly to
the Premises. Each Tenant shall be responsible for all visitors and
persons for whom he requests passes and shall be liable to Landlord for
all acts of such visitors and persons. Landlord shall in no case be liable
for damages for any error with regard to the admission to or exclusion
from the Building of any person. In case of an invasion, mob riot, public
excitement or other circumstances rendering such action advisable in
Landlord's opinion, Landlord reserves the right without any abatement of
rent to require all persons to vacate the Building and to prevent access
to the Building during the continuance of the same for the safety of the
tenants and in the protection of the Building and the property in the
Building. All use of the Building during Non-Building Hours shall be
subject to reasonable rules of decorum as determined by Landlord in its
sole discretion.
16. Any persons employed by any Tenant to do janitor work shall, while in the
Building and outside of the Premises, be subject to and under the control
and direction of the superintendent of the Building (but not as an agent or
servant of said superintendent or of Landlord), and Tenant shall be
responsible for all acts of such persons.
17. All doors opening onto public corridors shall be kept close, except during
customary business hours.
18. The requirements of Tenant will be attended to only upon application to the
Office of the Building.
19. Canvassing, soliciting and peddling in the Building are prohibited and each
Tenant shall report and otherwise cooperate to prevent the same.
20. All equipment of any electrical or mechanical nature shall be placed by
Tenant in the Premises in settings approved by Landlord, to absorb or
prevent any vibration, noise and annoyance. Any such equipment in the
Premises shall be F.C.C. approved and shall not interfere in any way with
the equipment of any other Tenant or of the Building, or with the use of
the Building by other Tenants.
21. No air conditioning unit or other similar apparatus shall be installed or
used by any Tenant without the written consent of Landlord.
22. There shall not be used in any space, or in the public halls of the
Building, either by any Tenant or others, any handtrucks except those
equipped with rubber tires and rubber sideguards.
23. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of
Landlord.
24. The scheduling of Tenant move-ins shall be subject to the reasonable
discretion of Landlord.
25. If Tenant desires telephone or telegraph connections, Landlord will direct
electricians as to where and how the wires are to be introduced. No boring
or cutting for wires or otherwise shall be made without directions from
Landlord.
26. The term "personal goods or services vendors" as used herein means persons
who periodically enter the Building of which the Premises are a part for
the purpose of selling goods or services to a Tenant, other than goods or
services which are used by Tenant only for the purpose of conducting its
business on the Premises. "Personal goods or services" include, but are not
limited to, drinking water and other beverages, food, barbering services,
and shoeshining services. Landlord reserves the right to prohibit personal
goods and services vendors from access to the Building except upon such
reasonable terms and conditions, including but not limited to the payment
of a reasonable fee and provision for insurance coverage, as are related to
the safety, care and cleanliness of the Building, the preservation of good
order thereon, and the relief of any financial or other burden on Landlord
occasioned by the presence of such vendors or the sale by them of personal
goods or services to Tenant or its employees. If necessary for the
accomplishment of these purposes, Landlord may exclude a particular vendor
entirely or limit the number of vendors who may be present at any one
time in the Building.
27. It shall be the responsibility of each tenant to provide its employees with
keys to its premises. Landlord will under no circumstances open any
premises for any tenant or its employees.
28. Nothing contained in these rules and regulations nor in the Lease shall
prohibit Landlord from conducting within or permitting the use of the
atrium at any time for exhibits, displays, concerts, lectures or other
events. Tenant shall not conduct within nor permit the use of the atrium
for any such event absent the prior written consent of Landlord, which
consent may be withheld at Landlord's sole discretion.
29. No waiver of any rule or regulation by Landlord shall be effective unless
expressed in writing and signed by Landlord.
Page 2 of 2 LESSEE FWC
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LESSOR [sig]
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101
EXHIBIT "D-2"
PARKING AGREEMENT/RULES & REGULATIONS
PARKING AGREEMENT
So long as the Lease to which this Parking Agreement is attached remains in
effect, and so long as the rules and regulations adopted by Landlord are not
violated, Tenant or persons designated by Tenant shall be entitled on a
nonexclusive basis to rent parking spaces in the Project and a license to enter
the free standing parking structure (the "Parking Structure") which Parking
Structure constitutes a portion of the Project, at a monthly rental rate
determined by Landlord. Each person who rents a parking space on a monthly basis
at the Project, at a monthly rental rate determined by Landlord. Each person who
rents a parking space on a monthly basis at the Project shall park only in the
Parking Structure and not at any other location in the Project. The initial
monthly rental rate set forth in Item 10 of the Basic Lease Provisions is
subject to adjustment by Landlord. Except as otherwise provided in the Basic
Lease Provisions, the initial monthly rental rate shall remain in effect until
it is adjusted by Landlord. Tenant may validate visitor parking by such method
or methods as Landlord or the garage operator may approve, at the validation
rate from time to time generally applicable to visitor parking. Notwithstanding
the foregoing, Landlord expressly reserves the right to redesignate parking
areas and to modify the Parking Structure for other uses or to any extent. A
condition of any parking shall be compliance by the xxxxxx with garage rules and
regulations, including any sticker or other identification system established by
Landlord's Parking Operator. The following rules and regulations are in effect
until notice is given to Tenant of any change. Landlord reserves the right to
modify and/or adopt such other reasonable and nondiscriminatory rules and
regulations for the garage as it deems necessary for the operation of the
garage. Landlord may refuse to permit any person who violates the within rules
to park in the garages, and any violation of the rules shall subject the car to
removal. In either of said events the sticker or any other form of
identification supplied by Landlord will be returned to Landlord.
RULES AND REGULATIONS
1. Cars must be parked entirely within the stall lines painted on the floor.
2. All directional signs and arrows must be observed.
3. The speed limit shall be 5 miles per hour.
4. Parking is prohibited: (a) in areas not striped for parking; (b) in aisles;
(c) where "no parking" signs are posted; (d) on ramps; (e) in cross hatched
areas; (f) in such other areas as may be designated by Landlord or
Landlord's Parking Operator. Any vehicle which is parked in a prohibited
area may be towed by landlord at the vehicle owner's expense.
5. Parking stickers or any other device or form of identification supplied by
Landlord shall remain the property of Landlord. Such parking identification
device must be displayed as requested and may not be mutilated in any
manner. The serial number of the parking identification device may not be
obliterated. Devices are not transferable and any device in the possession
of an unauthorized holder will be voided and confiscated. There will be a
replacement charge payable by Tenant or person designated by Tenant equal
to the amount posted from time to time by Landlord for loss of any magnetic
parking card or parking sticker. A security deposit may be required for
each card and/or identification device and Landlord may provide that the
security deposit will be forfeited if the item it represents is lost,
stolen or destroyed.
6. Monthly rates for rental of parking space is payable one (1) month in
advance and must be paid prior to the first day of each month. Failure to
do so will automatically cancel parking privileges and a charge at the
prevailing daily rate will be due. No deductions or allowances from the
monthly rate will be made for days customer does not use the parking
facility.
7. Garage managers or attendants are not authorized to make or allow any
exceptions to these Rules and Regulations.
8. Every xxxxxx is required to park and lock his own car. All responsibility
for damage to cars or persons is assumed by the xxxxxx.
9. Loss or theft of parking identification devices from automobiles must be
reported to the garage manager immediately and a lost or stolen report must
be filed by the customer at that time.
(a) Any parking identification device reported lost or stolen found on any
unauthorized car will be confiscated and the illegal holder will be
subject to prosecution.
(b) Lost or stolen devices found by the purchaser must be reported to the
office of the garage immediately to avoid confusion.
10. Spaces rented to persons are for the express purpose of parking one
automobile per space. Washing, waxing, cleaning or servicing of any vehicle
by the customer and/or his agents is prohibited.
11. Landlord and the garage management reserves the right to refuse the sale of
the monthly stickers or other parking identification devices to any tenant
or person and/or his agents or representatives who willfully refuse to
comply with the above Rules and Regulations and all unposted City, State or
Federal ordinances, laws or agreements.
12. Tenant shall acquaint all persons to whom Tenant assigns parking spaces of
these Rules and Regulations.
LESSEE FWC
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LESSOR [sig]
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102
EXHIBIT "D-1"
BUILDING RULES & REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, bridges or halls shall not be obstructed or used for
any purpose other than ingress and egress. The bridges, halls, passages,
entrances, elevators, stairways, atrium and roof are not for the use of the
general public, and Landlord shall in all cases retain the tight to control
and prevent access thereto of all persons whose presence, in the judgment
of Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with whom
Tenant normally deals only for the purpose of conducting its business on
the Premises (such as dients, customers, office suppliers and equipment
vendors, and the like) unless such persons are engaged in illegal
activities. No tenant and no employees of any Tenant shall go upon the roof
of the Building without the written consent of Landlord. No space facing
the interior of the atrium or any exterior terrace shall be used for the
storage of materials or in any other manner which would detract from the
appearance of the interior of the atrium or the exterior of the Building,
as determined by Landlord in its sole discretion.
2. No awnings or other projections shall be attached to the outside walls of
the building. No curtains, blinds, shades or screens shall be attached to
or hung in, or used in connection with, any window or door of the Premises
other than Landlord standard drapes. All electric ceiling fixtures hung in
offices or spaces along the perimeter of the Building must be fluorescent,
of a quality, type, design and bulb color approved by Landlord, neither the
interior nor the exterior of any windows shall be coated or otherwise
sunscreened without written consent of Landlord.
3. No sign, advertisement, notice or handbill shall be exhibited, distributed,
painted or affixed by any Tenant on, about or from any part of the Premises
or the Building or the Project without the prior written consent of
Landlord. If Landlord shall have given such consent at the time, whether
before or after the execution of this Lease, such consent shall in no way
operate as a waiver or release of any of the provisions hereof or of this
Lease, and shall be deemed to relate only to the particular sign,
advertisement or notice so consented to by Landlord and shall not be
construed as dispensing with the necessity of obtaining the specific
written consent of Landlord with respect to each and every such sign,
advertisement or notice other than the particular sign, advertisement or
notice, as the case may be, so consented to by Landlord. In the event of
the violation of the foregoing by any Tenant, Landlord may remove or stop
same without any liability, and may charge the expense incurred in such
removal or stopping to Tenant. Interior signs on doors and directory tablet
shall be inscribed, painted or affixed for each Tenant by Landlord at the
expense of such Tenant, and shall be of a size, color and style acceptable
to Landlord. The directory tablet will be provided exciusively for the
display of the name and location of Tenants only and Landlord reserves the
right to exdude any other names therefrom. Nothing may be placed on the
exterior of corridor walls or corridor doors other than Landlord's standard
lettering.
4. The sashes, sash doors, skylights, windows, and doors that reflect or admit
light and air into halls, passageways or other public places in the
Building shall not be covered or obstructed by any Tenant, nor shall any
botties, parcels or other artides be placed on the window xxxxx. Tenant
shall see that the doors of the Premises are dosed and securely locked
before leaving the building. Tenant shall exercise extraordinary care and
caution that all water faucets or water apparatus are entirely shut off
before Tenant or TenanVs employees leave the Building, and that all
electricity, gas or air shall likewise be carefully shut off, so as to
prevent waste or damage. Tenant shall cooperate with Landlord in obtaining
maximum effectiveness of the cooling system by dosing drapes when the sun's
rays fail directly on the windows of the Premises. Tenant shall not tamper
with or change the setting of any thermostats or temperature control
valves.
5. The toilet rooms, water and wash dosets and other plumbing fixtures shall
not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures shall
be bome by Tenant who, or whose subtenants, assignees or any of their
servants, employees, agents, visitors or licensees shall have caused the
same.
6. Tenant shall not xxxx, paint, drill into, or in any way deface any part of
the Premises, the Building or the Project. No boring, cutting or stringing
of wires or laying of linoleum or other similar floor coverings shall be
permitted, except with the prior written consent of Landlord and as
Landlord may direct.
7. No bicydes, vehides, birds or animals of any kind shall be brought into or
kept in or about the Premises, and no cooking shall be done or permitted by
any Tenant on the Premises, except that the preparation of coffee, tea, hot
chocolate and similar items for Tenants and their employees and the use of
a microwave oven shall be permitted provided power shall not exceed that
amount which can be provided by a 30 amp circuit. No Tenant shall cause or
permit any unusual or objectionable odors carrying lighted cigars,
cigarettes or pipes in the elevators of the Building is prohibited.
8. The Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the permitted use
of the Premises or the Storage Area. No Tenant shall occupy or permit any
portion of the Premises to be occupied as an office for a public
stenographer or typist, or for the manufacture or sale of liquor, narcotics
or tobacco (except by a cigarette vending machine for use by Tenant's
employees) in any form, or as a medical office, or as a xxxxxx of manicure
shop, or as an employment bureau without the express written consent of
Landlord, No Tenant shall engage or pay any employees on the Premises
except those actually working for such Tenant on the Premises, nor
advertise for laborers giving an address at the Premises. The Premises
shall not be used for lodging or sleeping or for any immoral or illegal
purposes. Tenant shall comply with any govemmental regulations or
ordinances which limit the smoking of tobacco within the Premises.
9. No Tenant shall make, or permit to be made any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the
use of any musical instrument, radio, phonograph, unusual noise, or in any
other way, No Tenant shall throw anything from the terraces out of doors,
windows or skylight or down the passageways.
10. No Tenant, subtenant or assignee nor any of their servants, employees,
agents, visitors or licensees, shall at any time bring or keep upon the
Premises any inflammable, combustible or explosive fluid, chemical or
substance.
11. No additional locks (except to the extent Tenant provides to Landlord a
master key thereto) or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing
locks or the mechanisms thereof Each Tenant must upon the terminabon of his
tenancy, restore to Landlord all keys of stores, offices, and toilet rooms,
either fumished to, or otherwise procured by, such Tenant and in the event
of the loss of keys so fumished, such Tenant shall pay to Landlord the cost
of replacing the same or of changing the lock or locks opened by such lost
key if Landlord shall deem it necessary to make such changes.
12. All removals, or the carrying in or out of any safes, freight, fumiture, or
bulky matter of any description must take place during the hours which
Landlord shall determine from time to time. The moving of safes or other
fixtures of bulky matter of any kind must be done upon previous notice to
the superintendent of the Building and under his supervision, and the
persons employed by any Tenant for such work must be acceptable to
Landlord. Landlord reserves the right to inspect all safes, freight or
other bulky artides to be brought into the Building and to exciude from the
Building all safes. freight or other bulky artides which violate any of
these Rules and Regulations or the Lease of which these Rules and
Regulations are a part Landlord reserves the right to prescribe the weight
and position of all safes, which must be placed upon supports approved by
Landlord to distribute the weight.
13. No Tenant shall purchase bottied water, ice, towel, plant care, janitorial
or maintenance or other like services, from any person or persons not
approved by Landlord.
14. Landlord shall have the right to prohibit any advertising by any Tenant
which, in Landlord's opinion tends to impair the reputation of the Building
or the Project or its desirability as an office location and upon written
notice from Landlordany Tenant shall refrain from or discontinue such
advertising.
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