DEED OF LEASE
BETWEEN
LIBERTY PROPERTY LIMITED PARTNERSHIP
AND
DENDRITE INTERNATIONAL, INC.
Project: Liberty Executive Park
Building: Dendrite Building II
Tenant: Dendrite International, Inc.
Location: Executive Boulevard
Chesapeake, Virginia
DEED OF LEASE
INDEX
ss. Section Page
--- ------- ----
1. Summary of Terms and Certain Definitions...........................................................1
2. Premises...........................................................................................2
3. Construction of Premises...........................................................................2
4. Use; Compliance....................................................................................4
5. Term...............................................................................................5
6. Minimum Annual Rent................................................................................5
7. Operation of Property; Payment of Expenses.........................................................5
8. Signs..............................................................................................9
9. Alterations and Fixtures...........................................................................9
10. Mechanics' Liens..................................................................................10
11. Landlord's Right of Entry.........................................................................10
12. Damage by Fire or Other Casualty..................................................................11
13. Condemnation......................................................................................11
14. Non-Abatement of Rent.............................................................................12
15. Indemnification...................................................................................12
16. Waiver of Claims..................................................................................13
17. Quiet Enjoyment...................................................................................13
18. Assignment and Subletting.........................................................................13
19. Subordination; Mortgagee's Rights.................................................................14
20. Recording; Tenant's Certificate...................................................................14
21. Surrender; Abandoned Property.....................................................................14
22. Curing Defaults...................................................................................15
23. Defaults - Remedies...............................................................................16
24. Representations...................................................................................17
25. Liability of Landlord.............................................................................17
26. Interpretation; Definitions.......................................................................18
27. Notices...........................................................................................18
28. Security Deposit..................................................................................18
29. Commission........................................................................................18
30. Option to Extend Term (Fixed Amount Rental Increase)..............................................18
31. Naming Rights.....................................................................................19
32. Parking...........................................................................................19
33. Rooftop Communications Equipment..................................................................19
34. Tenant Credits....................................................................................20
35. Phase I Building..................................................................................20
36. Cross-Defaults....................................................................................20
37. Consents..........................................................................................20
38. Phase II Start....................................................................................20
THIS DEED OF LEASE is made by and between LIBERTY PROPERTY LIMITED PARTNERSHIP,
a Pennsylvania limited partnership ("LANDLORD") with its address at 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 and DENDRITE INTERNATIONAL, INC., a
corporation organized under the laws of Delaware ("TENANT") with its address at
0000 Xx. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 and is dated as of the date
on which this lease has been fully executed by Landlord and Tenant.
1. Summary of Terms and Certain Definitions.
(a) "PREMISES": shall mean the entire Building and the Property
located at the intersection of Volvo Parkway and Executive
Boulevard, Chesapeake, Virginia, more particularly described
on Exhibit A attached hereto, upon which the Building is to be
constructed in accordance with the terms hereof.
(b) "BUILDING": shall mean a 49,870 square foot two-story Class A
Suburban Office Building also described herein as the "PHASE
II BUILDING" as depicted on Exhibit A-1, to be constructed on
the Property in accordance with the terms of this lease.
(c) "TERM": shall mean the initial term of this lease being one
hundred twenty (120) months, and forty-five days plus any
partial month from the Commencement Date until the first day
of the first full calendar month during the term.
(i) "COMMENCEMENT DATE": shall mean the date upon which
Substantial Completion, as defined below, has
occurred with regard to the Premises. The
Commencement Date for the Building is anticipated to
be on January 1, 2002, subject to the terms hereof
(ii) "EXPIRATION DATE": shall be as defined in Section 5
hereof, as extended pursuant to Section 36 hereof.
(d) "MINIMUM ANNUAL RENT" and "ANNUAL OPERATING EXPENSES".
(i) Minimum Annual Rent for the Building shall mean the
annual rent payable in monthly installments and
increased according to the following schedule:
Lease Year Annual Monthly
-------------------- ------------------------ -----------------------
1 $660,000.00 $55,000.00
2 $660,000.00 $55,000.00
3 $660,000.00 $55,000.00
4 $660,000.00 $55,000.00
5 $660,000.00 $55,000.00
6 $750.000.00 $62,500.00
7 $750.000.00 $62,500.00
8 $750.000.00 $62,500.00
9 $750.000.00 $62,500,00
10 $750.000.00 $62,500.00
(ii) Annual Operating Expenses shall be as defined in
Section 7(a), calculated using no core factor,
payable in monthly installments and adjusted as noted
in Section 7 hereof. The Annual Operating Expenses
for the Building is estimated to be $263,313.60 (Two
Hundred Sixty-Three Thousand Three Hundred Thirteen
and 60/100 Dollars) payable in monthly installments
of $21,942.80 (Twenty-One Thousand Nine Hundred
Forty-Two and 80/100 Dollars).
(e) "PROPORTIONATE SHARE": shall mean the ratio of the approximate
rentable square footage in the Building leased by Tenant to
the approximate total rentable square footage in the Building,
which hereunder shall be 100%.
(f) "USE": shall mean general office purposes and a high-end
technical data center, excluding any "place of public
accommodation".
(g) "CONTENTS": This lease consists of the Index, pages 1 through
___ Sections 1 through 38 and the following, all of which are
attached hereto and made a part of this lease:
Exhibits: "A" - Legal Description "A-l" - Building Site Plan
"B" - Commencement Certificate Form "C" - Park Building Rules
"D" - Office Park Expense "E" - Estoppel Certificate Form
"F" - Phase II Construction Documents "G" - Remaining Improvements and Removables
2. Premises. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises as shown on attached Exhibit "A" and "A-1" and the lot on
which it is located (the "PROPERTY"). Such obligation shall be contingent upon
Landlord acquiring title to the Property.
3. Initial Construction Fit Out of Premises. Landlord shall complete the
construction of the Building as follows:
(a) Construction of the Phase II Building. At Landlord's sole
cost and expense (except as noted herein) Landlord shall construct the Phase II
Building in accordance with the plans and specifications, which have been
approved by Tenant including without limitation the items noted in the
Memorandum, as defined below (the "Phase II Construction Documents" or the
"Approved Construction Documents"). Such specifications and a list of such plans
are attached as Exhibit `F'. Tenant shall be granted a tenant improvement
allowance in an amount not to exceed $600,000.00 (Six Hundred Thousand and
00/100 Dollars) (the "Allowance") for improvements to the Phase II Building (the
"Phase II Additional Improvements"). Tenant shall deliver to Landlord, no later
than March 15, 2001 plans and specifications reasonably acceptable to Landlord
encompassing the Phase II Additional Improvements. Upon Landlord's acceptance of
such plans and specifications, such improvements shall become a part of the
Phase II Construction Documents. Notwithstanding the foregoing, following
Substantial Completion and completion of punch list items, Tenant may use its
contractors for additional improvements made to the Premises in accordance with
the terms hereof.
(b) Tenant Improvements; Tenant's Cost. Upon Landlord's
written approval of and consent to any plans and specifications for additional
work or other changes to the Approved Construction Documents requested by
Tenant, which approval and consent shall be in Landlord's sole but reasonable
judgment and which does not impair or diminish the ability of Landlord to
release the Building following the conclusion of this lease (each a "Tenant
Improvement"), Landlord shall: (1) if necessary to implement such Tenant
Improvement, cause the Architect for the Building to prepare the appropriate
drawings reflecting such Tenant Improvement and (2) obtain from the General
Contractor the amount of Tenant's Cost, as defined below, for such Tenant
Improvement and the additional time required to implement the requested change,
which Landlord shall provide to Tenant in the form of a written proposed change
order. If Tenant wishes to implement the proposed change order it must sign and
return the proposed change order form to the Landlord. If Landlord does not
receive said form within five (5) business days of the date of which it was
received by the Tenant, or if Landlord receives a change order form marked to
note Tenant's disapproval, the change order shall be deemed disapproved by
Tenant. Upon Landlord's receipt of Tenant's written approval of the proposed
change order and of the cost associated with same, the Tenant Improvement
described in such change order shall then be part of the Approved Construction
Documents, and the additional time required to implement the requested change
shall be considered a delay beyond Landlord's control. Following such approval,
Landlord shall complete the Tenant Improvement at Tenant's sole expense.
"Tenants Cost" shall mean the sum equal to the aggregate of all costs, expenses
and fees incurred by or on behalf of Landlord in connection with a Tenant
Improvement, including without limitation (i) architectural, engineering, space
planning and design costs, (ii) the direct cost charged to Landlord by
Landlord's general contractor (the "General Contractor") and all subcontractors
for performing such construction, (iii) the cost of any change order, as noted
below, (iv) all permits, approvals and licenses, (v) overhead of the General
Contractor, (vi) a fee to the General Contractor equal to five percent (5%) of
the Tenant's Cost (excluding such fee), and (vii) general conditions of the
General Contractor which shall not include overhead of the General Contractor.
Tenant agrees to pay to Landlord, upon submission, all invoices for Tenant's
Cost incurred in connection with the Tenant Improvements.
(c) Substantial Completion. The Premises shall be
Substantially Completed on or before January 1, 2002, subject to the provisions
of paragraph (d) of this Section. All construction shall be done in a good and
workmanlike manner, materially in accordance with the Approved Construction
Documents and shall comply at the time of completion with all applicable laws
and requirements of the governmental authorities having jurisdiction.
"Substantial Completion" of the Premises shall mean, with regard to the Premises
and the Tenant Improvements: (i) Landlord's architect (the "Architect") has
issued a certificate stating that all work except punchlist items have been
completed materially in accordance with the Approved Construction Documents and
(ii) a temporary certificate of occupancy has been issued by the City of
Chesapeake, Virginia for the subject Building, other than with respect to the
installation of the Tenant's Work and subject to punch list items. Landlord,
Tenant and the General Contractor shall in conjunction with the Commencement
Date do a "walk thru" inspection of the Premises to determine a punch list and a
reasonable date for the completion of such items, not to exceed sixty (60) days.
Landlord will diligently pursue the open items in the temporary certificate of
occupancy in order to obtain a final certificate of occupancy at the earliest
practicable date after completion of the Tenant Improvements. Tenant's occupancy
of the Building shall constitute acceptance thereof for purposes of the
commencement of the Payment of Rent, and other than as to open items determined
by the parties upon such occupancy. Tenant shall have thirty (30) days after its
occupancy of the Premises to notify and discuss supplementary punch list items
it believes require correction or repair with Landlord.
(d) Delivery Date. If the Premises have not reached
Substantial Completion on or before January 1, 2002, (the "Delivery Date") the
following shall apply until Substantial Completion:
(i) From January 1, 2002 until January 31, 2002
Landlord shall have a grace period within which to Substantially Complete the
Premises.
(ii) For each day of delay from February 1, 2002,
until February 28, 2002, Landlord shall pay Tenant a sum equal to the per diem
Minimum Annual Rent due hereunder during the first lease year ("First Year
Rent") or Tenant may alternatively receive a credit against Rent, all at
Landlord's option.
(iii) For each day of delay from March 1, 2002 and
thereafter, Landlord shall pay Tenant the sum equal to twice the per diem First
Year Rent or Tenant may alternatively receive a credit against Rent, all at
Landlord's option.
(iv) From May 15, 2002, (the "Termination Deadline")
until Substantial Completion, Tenant, at its option, may terminate this lease.
(v) Notwithstanding the foregoing, for each day a
Force Majeure Event, as defined below, delays Substantial Completion, all dates
noted in this Section (d), including without limitation the Delivery Date and
the Termination Deadline, shall be extended one day (two days for a Tenant
Delay, as defined below). The Termination Deadline, however, may only be
extended (other than due to a Tenant Delay for which the Termination Deadline
may be extended indefinitely) until December 15, 2002. A "Force Majeure Event"
when used herein shall mean an act of god, flood, storm, explosion, fire or
other weather related occurrence, labor trouble, strike or stoppage, a
disruption or other interference with sources of materials, insurrection, riot,
act of the public enemy, or federal, state or local law, order, rule or
regulation, which inhibit, impede, delay or prevent a party from complying with
any condition or requirement. When used herein, a Tenant Delay shall mean any
delay attributable substantially to the acts or omissions of Tenant, its agents
or contractors, if any (a "Tenant Delay").
(vi) Tenant shall pay to Landlord on the Commencement
Date, in addition to Rent due from the Commencement Date and thereafter, a sum
equal to per diem First Year Rent for each day of Tenant Delay if Substantial
Completion occurs following January 1, 2002. If a Tenant Delay occurs, Landlord
shall notify Tenant promptly of such event.
(vii) In the event the Premises are not delivered to
Tenant on or before the Delivery Date, Landlord, at Tenant's option, shall
provide Tenant with up to 1,000 square feet of office space for its use, at the
rate of $13.20 per square foot plus operating expenses, until Substantial
Completion.
(viii) Landlord shall sufficiently complete the shell
of the Building on or before January 1, 2002, in order to permit Tenant to
install its telephone, computer and other communications lines and cables, as
noted below.
(ix) Notwithstanding the foregoing, Tenant's
obligation to pay Minimum Annual Rent hereunder shall not begin until forty-five
(45) days following the Commencement Date to permit Tenant to install its
fixtures, equipment and wiring and cabling in the Building.
(e) Authorized Representatives.
(i) Tenant's Authorized Representative. Tenant
appoints Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxx as Tenant's authorized
representatives for all issues related to the Approved Construction Documents
(each individually known as a "Tenant's Authorized Representative"). Landlord
shall deliver to Tenant's Authorized Representatives all notices, plans,
approvals and/or other submittals pursuant to this Section. Only a Tenant's
Authorized Representative shall be authorized to sign any change order, or
disbursement request for any allowance, receipt of other document on behalf of
Tenant related to the Approved Construction Documents, Tenant Improvements or
change orders, and without the signature of a Tenant's Authorized
Representative, no such document shall be binding on Tenant. Tenant may from
time to time change any of its Tenant's Authorized Representative or the
location designated for Tenant's Authorized Representative to receive notices,
plans, and other submittals by giving Landlord written notice of such change.
(ii) Landlord's Authorized Representative. Landlord
appoints Xxxx X. Xxxxxxxxxx and Xxxx Xxxx, as Landlord's authorized
representatives for all issues related to the Approved Construction Documents
(each individually known as a "Landlord's Authorized Representative"). Tenant
shall deliver to Landlord's Authorized Representatives all notices, plans,
approvals and/or other submittals pursuant to this Section. Only a Landlord's
Authorized Representative shall be authorized to sign any document on behalf of
Landlord related to the Approved Construction Documents, Tenant Improvements or
change orders, and without the signature of a Landlord's Authorized
Representative, no such document shall be binding on Landlord. Landlord may from
time to time change any of its Landlord's Authorized Representatives or the
location designated for Landlord's Authorized Representatives to receive
notices, plans, and other submittals by giving Tenant written notice of such
change.
(iii) Construction Meetings. A Tenant Authorized
Representative and a Landlord Authorized Representative shall endeavor to meet
at least once every two weeks during the construction of the Building to discuss
the progress of such construction and any related issues. Such meetings may be
in person or via telephonic conference call and may include, as appropriate, the
General Contractor, the Architect and any other relevant parties.
(f) Tenant's Work.
(i) All work not within the scope of the Approved
Construction Documents, including without limitation delivery, furnishing and
installation of (A) telephone or other communications lines, cables and
equipment; (B) computer or office equipment and the cabling associated with
same; (C) furniture or fixtures of the Tenant; and (D) security equipment, shall
be considered "Tenant's Work" and shall be furnished and installed by Tenant at
Tenant's expense.
(ii) Tenant and its agents shall have the right, at
Tenant's own risk, expense and responsibility to enter the Building: (i) not
later than the Delivery Date (or earlier if the Building is completed to the
extent necessary to permit such entry), for the purpose of furnishing and
installing telephone, computer or other communications lines and cables and
installing its fixtures and equipment; provided that Tenant does not interfere
with or delay the work to be performed by Landlord, Tenant uses contractors and
workers compatible with the contractors and workers engaged by Landlord, and
Tenant obtains Landlord's prior written consent and, if such entry is prior to
the Commencement Date, such entry shall be subject to all the terms and
conditions of this lease, except the payment of Rent. Further, Tenant's Work
shall be subject to the following conditions:
(1) At least ten (10) days prior to
commencement of Tenant's Work, Tenant shall deliver to Landlord a certificate of
insurance for each of Tenant's contractors evidencing adequate insurance
coverage naming Landlord and Landlord's agent as additional insureds.
(2) In addition to the right of Landlord and
its Agents to inspect the Premises set forth in Section 11 of this lease,
Landlord and its Agents shall have the right to conduct a walk-through
inspection of the Premises as completed by Tenant.
(3) The warranties from Tenant's
contractor(s) shall be for the benefit of Landlord as well as Tenant and Tenant
shall deliver such warranties to Landlord upon receipt.
(4) All construction shall be done in a good
and workmanlike manner and shall comply at the time of completion with all Laws
and Requirements. Tenant shall deliver to Landlord copies of all certificates of
occupancy, permits and licenses required to be issued by any authority in
connection with Tenant's construction.
(g) Architect's Determination. The parties agree that in the
event of a dispute concerning the design or construction of or the improvements
to the Building, the undersigned shall each select an architect who together
shall select a third architect (the "3rd Architect"). The 3rd Architect shall be
the final arbiter as to such matters, including without limitation, as to a
determination of Substantial Completion, and his decision shall be deemed final
and binding.
(h) Measurement of the Premises. Upon Substantial Completion,
Landlord's architect shall certify, by its review of the Approved Construction
Documents and its examination of the Building, the Building's square footage
(the "BSQ"). If such measurement is less than 49,870 square feet, the Minimum
Annual Rent shall be recalculated by multiplying the BSQ times $13.20, which
rent shall be escalated at the sixth year by 13.64% for the balance of the Term.
4. Use: Compliance.
(a) Permitted Use. Tenant shall occupy and use the Premises
for and only for the Use specified in Section l(f) above and in such a manner as
is lawful, reputable and will not create any nuisance or otherwise interfere
with the management of the Building Without limiting the foregoing, such Use
shall exclude any use that would cause the Premises or the Property to be deemed
a "place of public accommodation" under the Americans with Disabilities Act (the
"ADA") as further described in the Building Rules (defined below).
(b) Compliance. From and after the Commencement Date, Tenant
shall comply promptly, at its sole expense, (including making any alterations or
improvements) with all laws (including the ADA), ordinances, notices, orders,
rules, regulations and requirements regulating the Property during the Term
which impose any duty upon Landlord or Tenant with respect to Tenant's use or
alteration of, or Tenant's installations in or upon, the Property including the
Premises, (as the same may be amended, the "LAWS AND REQUIREMENTS") and the
building rules attached as Exhibit "C", as amended by Landlord from time to time
in Landlord's reasonable discretion and so long as such rules are not
inconsistent with this lease(the "BUILDING RULES"). Provided, however, that
Tenant shall not be required to comply with the Laws and Requirements with
respect to the footings, foundations, structural steel column and girders
forming a part of the Property unless the need for such compliance arises out of
Tenant's use, occupancy or alteration of the Property, or by any act or omission
of Tenant or any employees, agents, contractors, licensees or invitees
("AGENTS") of Tenant. Landlord hereby represents and warrants that the Premises
will be in strict compliance with all Laws and Requirements as of the
Commencement Date and Landlord shall be responsible for: (i) all costs and
expenses in connection with bringing the Premises into compliance with all Laws
and Requirements as they exist on the Commencement Date other than those which
arise out of Tenant's use or alteration of the Building and (ii) defects in the
Building.
(c) Environmental. Tenant shall comply, at its sole expense,
with all Laws and Requirements as set forth above, all manufacturers'
instructions and all requirements of insurers relating to the treatment,
production, storage, handling, transfer, processing, transporting, use, disposal
and release of hazardous substances, hazardous mixtures, chemicals, pollutants,
petroleum products, toxic or radioactive matter (the "RESTRICTED ACTIVITIES").
Tenant shall deliver to Landlord copies of all Material Safety Data Sheets or
other written information prepared by manufacturers, importers or suppliers of
any chemical and all notices, filings, permits and any other written
communications from or to Tenant and any entity regulating any Restricted
Activities.
(d) Notice. If at any time during or after the Term (if such
inquiry results from any act or omission of Tenant or its Agents), Tenant
becomes aware of any inquiry, investigation or proceeding regarding the
Restricted Activities or becomes aware of any claims, actions or investigations
regarding the ADA, Tenant shall give Landlord written notice, within 5 days
after first learning thereof, providing all available information and copies of
any notices.
5. Term. The Term of this lease shall commence on the Commencement Date and
shall end at 11:59 p.m. on the last day of the Term (the "EXPIRATION DATE"),
without the necessity for notice from either party, unless sooner terminated in
accordance with the terms hereof. Landlord and Tenant shall confirm the
Commencement Date and Expiration Date by executing a lease commencement
certificate in the form attached as Exhibit "B".
6. Minimum Annual Rent. Tenant agrees to pay to Landlord the Minimum Annual Rent
in equal monthly installments in the amount set forth in Section 1(d) (as
increased at the beginning of each lease year as set forth in Section l(d)), in
advance, on the first day of each calendar month during the Term, without
notice, demand or setoff except as otherwise provided herein, at Landlord's
address designated at the beginning of this lease unless Landlord designates
otherwise; provided that rent for the first full month shall be paid at the
signing of this lease. If the Commencement Date falls on a day other than the
first day of a calendar month, the rent shall be apportioned pro rata on a per
diem basis for the period from the Commencement Date until the first day of the
following calendar month and shall be paid on or before the Commencement Date.
As used in this lease, the term "lease year" means the period from the
Commencement Date through the succeeding 12 full calendar months (including for
the first lease year any partial month from the Commencement Date until the
first day of the first full calendar month) and each successive 12 month period
thereafter during the Term.
7. Operation of Property: Payment of Expenses.
(a) Payment of Operating Expenses. Tenant shall pay to
Landlord the Annual Operating Expenses in equal monthly installments in the
amount set forth in Section l(d) (prorated for any partial month), from the
Commencement Date and continuing throughout the Term on the first day of each
calendar month during the Term, as additional rent, without notice, demand or
setoff, except as otherwise provided herein. Landlord shall apply such payments
to the Annual Operating Expenses to Landlord of operating and maintaining the
Property during each calendar year of the Term. The amount of the Annual
Operating Expenses set forth in Section 1(d) represents landlord's estimate of
Tenant's share of the estimated Annual Operating Expenses during the first
calendar year of the Term on an annualized basis; from time to time Landlord may
adjust such estimated amount if the estimated operating costs increase or
decrease. The Annual Operating Expenses, as set forth in Section 1(d) will be
adjusted to reflect as nearly as possible the actual Annual Operating Expenses
for the Premises as and when such expenses become known. Tenant's obligation to
pay the Annual Operating Expenses pursuant to this Section 7 shall survive the
expiration or termination of this lease. The calculation and payment of Annual
Operating Expenses shall be as follows:
(i) As used herein, the term "Annual Operating
Expenses" shall mean the actual costs to Landlord (net of discounts, credits,
rebates or reimbursements from insurance or payments from any party) of
operating and maintaining the Premises during each calendar year of the Term
computed on an accrual basis. Annual Operating Expenses shall be determined
according to generally accepted accounting principles which shall be
consistently applied, and shall include: (a) "impositions" (defined in Section
7(b); provided, however, that if, by law, any assessment of impositions may be
divided and paid in installments, then, for the purposes of this subsection
7(a)(i), (x) such assessment shall be deemed to have been so divided, (y) such
assessment shall be deemed payable in the maximum number of installments
permitted by law, and (z) there shall be deemed included in Annual Operating
Expenses for each calendar year the installment(s) of such assessment becoming
payable during such calendar year, together with interest payable during such
calendar year an such installment(s) and on all installments thereafter becoming
due as provided by law, all as if such assessment had been so divided; (b)
charges or fees for, and taxes on, the furnishing of water, sewer service, gas,
fuel, or other utility services to the Building; (c) a management fee in an
amount not to exceed the prevailing market rate charged for owner managed
buildings, but in no event exceeding three and three-fourths percent (3.75%) of
the Annual Minimum Rent per lease year; (d) premiums for hazard, liability, rent
insurance, workmens' compensation or similar insurance upon the Budding or
portions thereof; (e) costs arising under service contracts with independent
contractors for services provided to the Building; (f) maintenance and cleaning,
sanitary control, snow removal and trash, garbage and other refuse removal,
including costs related to trash compactors; (g) repair, maintenance and
painting of sidewalks, pavements, light fixtures, signs; (h) repair, maintenance
and painting of the Building; (i) pest control; (j) general repairs; (k) fire
protection; (1) costs of replacements of any portion of the Property; however,
if the cost of any item is greater than $25,000 in any lease year, such cost
shall be included in Annual Operating Expenses for the year in which the costs
are incurred and subsequent years, appropriately allocated to such years on a
straight-line basis, to the extent that such items are amortized over the
average of the range of useful life for such item as quoted by its manufacturer,
with an interest factor equal to the Prime Rate as hereinafter defined; and (m)
maintenance and repair of utility systems servicing the Building.
(ii) Notwithstanding anything in subsection 7(a)(i)
to the contrary, Annual Operating Expenses shall not include (a) the costs of
repairs, alterations, capital improvements and other items which under generally
accepted accounting principles are properly classified as capital expenditures;
(b) repairs arising from defects in the initial construction of the Building (c)
repairs necessitated by the negligence of Landlord or required to cure
violations of Laws and Requirements in effect on the Commencement Date; (d)
interest and amortization of indebtedness or any costs of financing or
refinancing, depreciation or ground rent; (e) management fees in excess of the
amount permitted under subsection 7(a)(i); (f) compensation paid to general
partners, officers or executives of Landlord (other than the management fee
referred to in subsection 7(a)(i); (g) leasing commissions, advertising, and
promotional expenses; (h) legal fees or accounting fees; (i) taxes, other than
as described in subsection 7(b); (i) any amounts payable by Landlord by way of
indemnity or for damages or which constitute a fine, interest or penalty; (j)
any improvement installed or work performed or any other cost or expense
incurred by Landlord in order to comply with the requirements for obtaining any
permanent or temporary certificate of occupancy for the Building or any space
therein or the renewal of any temporary certificate of occupancy; (k) any cost
representing an amount paid for services or materials to a person, firm or
entity related in any manner to Landlord or any affiliate of Landlord to the
extent such amount exceeds the amount that would be paid for such services or
materials at the then-existing market rates to an unrelated person, firm or
corporation; (l) costs for which Landlord actually receives reimbursement from
insurance, condemnation awards or any other source and expenses for repairs and
other work caused by fire, windstorm or other casualty required to be insured
under this Lease; (m) any expenses incurred by Landlord as a result of asbestos
or other hazardous materials in the Building or on or about the Property or
suspected to be in the Building or on or about the Property other than as a
result of the acts or omissions of Tenant, its contractors, invitees, or agents;
(n) any costs of Landlord in acquiring the Property or in constructing the
Building; (o) costs incurred for the purchase of tools and operating equipment
(other than tools purchased solely for the Building); (p) repairs or other work
(including rebuilding) occasioned by fire, windstorm or other casualty or
condemnation; (q) fines, penalties, late payments and costs incurred by Landlord
due to violations of law or permits, leases or contracts pertaining to the
Building (unless due to violations caused by Tenant which Tenant shall pay in
full but which shall not be included in the Annual Operating Expenses) and (r)
repair of construction items reimbursed through warranty coverage.
(iii) If only part of any calendar year falls within
the Term, the Annual Operating Expenses shall be pro-rated in proportion to the
portion of such calendar year falling within the Term. Any reasonable common
area expense which is incurred by the office park of which the Building is a
part, including without limitation, those items noted on Exhibit D, shall be
allocated proportionately between the buildings of the office park based upon
the square footage of each building, but in no event shall Tenant's share of the
expenses for the office park exceed 20% of the total of such costs. Tenant's
share of the office park costs shall be added to and paid in the same manner as
Annual Operating Expenses.
(iv) By April 30th of each year (and as soon as
practical after the expiration or termination of this lease or at any time in
the event of a sale of the Property), Landlord shall provide Tenant with a
statement of the actual amount of such annual operating costs for the preceding
calendar year or part thereof ("Operating Costs Statements"). Landlord or Tenant
shall pay to the other the amount of any deficiency or overpayment then due from
one to the other or, at Landlord's option, Landlord may credit Tenant's account
for any overpayment. Tenant shall have the right to inspect the books and
records used by Landlord in calculating the annual operating costs within 120
days of receipt of the statement during regular business hours after having
given Landlord at least 48 hours prior written notice; provided, however, that
Tenant shall make all payments of additional rent without delay, and that
Tenant's obligation to pay such additional rent shall not be contingent on any
such right. If as a result of such examination, Tenant disputes the Operating
Costs Statement, Tenant shall notify Landlord that it disputes such Operating
Costs Statement setting forth the reasons therefor (a "Notice of Dispute"). If
Landlord and Tenant do not agree on the proper amount for Tenant's Operating
Costs Statement within thirty (30) days after Tenant's Notice of Dispute to
Landlord, Tenant, at its sole cost may have such statement audited by an
auditing firm (paid on an hourly basis) selected as agreed by Tenant and
Landlord. If such audit reveals that Tenant's Annual Operating Expenses shall
have been overstated by more than five percent (5%) of the total Annual
Operating Expenses, Landlord shall reimburse Tenant for the reasonable cost of
the auditor's examination of Landlord's records.
(v) At least ninety (90) days prior to each calendar
year Landlord shall submit to Tenant a budget and estimate of the Annual
Operating Expenses for such year. If the budgeted cost of any expense in the
control of Landlord (which costs specifically exclude, without limitation,
utilities and insurance), which is provided by a service contractor of Landlord,
exceeds the previous year's cost by more than 10%, Landlord shall obtain
Tenant's prior consent for the service contract for the budgeted year, which
consent shall not be unreasonably withheld, delayed or denied. If such consent
is not given, Landlord shall obtain three (3) bids for such service and shall
select the lowest cost provider to perform the service.
(b) Impositions. As used in this lease the term "impositions"
refers to all real estate taxes or their equivalents (including sales taxes and
gross receipt taxes) and assessments, which are applicable to the Term, and
which are imposed by any authority or under any law, ordinance or regulation
thereof, or pursuant to any recorded covenants or agreements, and the reasonable
cost of contesting any of the foregoing, upon or with respect to the Property or
any part thereof, or any improvements thereto. Tenant shall pay to Landlord with
the monthly payment of Minimum Annual Rent any imposition imposed directly upon
this lease or the Rent (defined in Section 7(g)) or amounts payable by any
subtenants or other occupants of the Premises, or against Landlord because of
Landlord's estate or interest herein.
(i) Nothing herein contained shall be interpreted as
requiring Tenant to pay any income, excess profits or corporate capital stock
tax imposed or assessed upon Landlord, unless such tax or any similar tax is
levied or assessed in lieu of ail or any part of any imposition or an increase
in any imposition.
(ii) If it shall not be lawful for Tenant to
reimburse Landlord for any of the impositions, the Minimum Annual Rent shall be
increased by the amount of the portion of such imposition allocable to Tenant,
unless prohibited by law.
(iii) Tenant may, in good faith, but without delaying
or obviating its responsibility to timely pay such expenses (which expenses
shall be paid as if Tenant did not intend to exercise its right to so contest
such charge), and at its sole expense and risk, contest any tax payable under
this Section 7(b).
(c) Insurance.
(i) Property. Landlord shall keep in effect insurance
against loss or damage to the Building and the Property by fire, flood (if the
Property is located in a flood zone for which flood insurance is normally and
customarily required) and such other casualties as may be included within fire,
extended coverage and special form insurance covering the full replacement cost
of the Building (but excluding coverage of Tenant's personal property in, and
any alterations by Tenant to, the Premises), and such other insurance as
Landlord may reasonably deem appropriate or as may be required from time-to-time
by any mortgagee, provided in all such instances that such insurance is
commercially reasonably and is the type which is normally required for similar
type properties in Hampton Roads, Virginia.
(ii) Liability and Tenant's Property. Tenant, at its
own expense, shall keep in effect commercial general liability insurance with
respect to the Premises and the Property, including contractual liability
insurance, with such limits of liability for bodily injury (including death) and
property damage as reasonably may be required by Landlord from time-to-time,
provided in all such instances that such insurance is commercially reasonably
and is the type which is normally required for similar type properties in
Hampton Roads, Virginia, but not less than a $1,000,000 per occurrence and a
general aggregate limit of not less than $2,000,000 (which aggregate limit shall
apply separately to each of Tenant's locations if more than the Premises);
however, such limits shall not limit the liability of Tenant hereunder. Further,
with respect to Tenant's equipment, fixtures, inventory improvements, and other
property of any nature or kind located at the Premises, Tenant shall maintain at
its sole cost and expense, Special Form insurance (including without limitation,
perils of flood - if the Property is located in a flood zone for which flood
insurance is normally and customarily required) with Replacement Cost Valuation
on an Agreed Amount Basis, which policies shall insure, without limitation,
Tenant's business contents and business personal property, including without
limitation, coverage for Electronic Data Processing Equipment and Media,
Improvements and Betterments, Stock, Business Interruption and Extra Expense,
Rental Value, Leasehold Interest, and Property of Others in their Care, Custody
and Control, further including without limitation, differing variations and
forms of such coverages as they evolve over time. The above policies of
insurance also shall name Landlord as an additional insured with respect to the
Premises, shall be written on an "occurrence" basis and not on a "claims made"
basis, shall provide that it is primary with respect to any policies carried by
Landlord and that any coverage carried by Landlord shall be excess insurance,
shall provide that it shall not be cancelable or reduced without at least 30
days prior written notice to Landlord and shall be issued in form reasonably
satisfactory to Landlord. The insurer shall be a responsible insurance carrier
which is authorized to issue such insurance and licensed to do business in the
state in which the Property is located and which has at all times during the
Term a rating of no less than A- in the most current edition of Best's Insurance
Reports. Tenant shall deliver to Landlord on or before the Commencement Date,
and subsequently, renewals of, a certificate of insurance evidencing such
coverage and the waiver of subrogation described below.
(iii) Waiver of Subrogation. Landlord and Tenant
shall have included in their respective property insurance policies waivers of
their respective insurers' right of subrogation against the other party. If such
a waiver should be unobtainable or unenforceable, then such policies of
insurance shall state expressly that such policies shall not be invalidated if,
before a casualty, the insured waives the right of recovery against any party
responsible for a casualty covered by the policy.
(iv) Increase of Premiums. Tenant agrees not to do
anything or fail to do anything which will increase the cost of Landlord's
insurance or which will prevent Landlord from procuring policies (including
commercial general liability) from companies and in a form satisfactory to
Landlord. If any breach of the preceding sentence by Tenant causes the rate of
fire or other insurance to be increased, Tenant shall pay the amount of such
increase as additional rent promptly upon being billed.
(d) Repairs and Maintenance; Building Management.
(i) Tenant at its sole expense shall maintain the
Premises in a neat and orderly condition.
(ii) Landlord shall make all necessary repairs to the
Premises and any other improvements located on the Property, including without
limitation, the responsibility for and repairs and maintenance to the roof and
elevators of the Building, provided that Landlord shall have no responsibility
to make any repair until Landlord has received written notice of the need for
such repair. Landlord shall operate, manage and maintain the Premises and any
paved or unpaved areas appurtenant to the Property in a first class manner
consistent with a Class A office building. Landlord shall maintain and enforce
all warranties and guaranties in connection with the Premises. Costs for
maintaining the electrical, HVAC for the data center of the Building and
security system of the Building shall not be part of Annual Operating Expenses
but shall be maintained in a first-class manner by and paid for by Tenant.
Tenant shall have access to the roof in accordance with the terms of this lease
to perform such maintenance. The cost and responsibility for maintenance and
repair of structural components, foundation and exterior walls of the Building
shall be Landlord's and shall not be included in Annual Operating Expenses
unless the need for such repairs is caused by Tenant.
(iii) Notwithstanding anything herein to the
contrary, repairs and replacements to the Property including the Premises made
necessary by Tenant's use, occupancy or alteration of, or Tenant's installation
in or upon the Property or by any act or omission of Tenant or its Agents shall
be made at the sole expense of Tenant to the extent not covered by any
applicable insurance proceeds paid to Landlord. Tenant shall not bear the
expense of any repairs or replacements to the Property arising out of or caused
by any other tenant's use, occupancy or alteration of, or any other tenant's
installation in or upon, the Property or by any act or omission of any other
tenant or any other tenant's Agents.
(iv) With respect to Tenant's obligations as to the
Property, at Landlord's option and at Tenant's expense, and after all applicable
notice and cure periods have expired, Landlord may comply with any repair,
replacement or other construction requirements of the Laws and Requirements and
Tenant shall pay to Landlord all costs thereof as additional Rent
(e) Utilities and Services. Landlord will furnish the Premises
with electricity, heating and air conditioning, elevator service and water and
sewer consistent with Tenant's special and usual requirements as they relate to
general Class A offices twenty-four (24) hours a day, three hundred sixty-five
(365) days a year (including all holidays and weekends) in accordance with the
Approved Construction Documents. Landlord shall not be responsible or liable for
any interruption in utility service, nor shall such interruption affect the
continuation or validity of this lease. Notwithstanding the foregoing, in the
event of an interruption in utility service, which (i) is caused solely by
Landlord or (ii) is the responsibility of Landlord hereunder, and is within
Landlord's sole control, and if such service is not restored within two (2)
business days after Landlord's actual notice of such interruption, Tenant's
payment of Rent shall xxxxx until the utility service is restored and Tenant may
exercise its rights under ss.22(b).
(f) Janitorial Services. Landlord will provide Tenant with
trash removal and janitorial services pursuant to a cleaning schedule attached
as Exhibit "D"; however, Tenant at its option and cost, may provide its own
janitorial services for the Premises so long as the Premises are kept in
accordance with the standards noted in Section 7(d)(ii), in which event,
Landlord's costs for such service shall be excluded from Annual Operating
Expenses.
(g) Rent. The term "RENT" as used in this lease means the
Minimum Annual Rent, Annual Operating Expenses and any other additional rent or
sums payable by Tenant to Landlord pursuant to this lease, all of which shall be
deemed rent for purposes of Landlord's rights and remedies with respect thereto.
Tenant shall pay all Rent to Landlord within 30 days after Tenant is billed,
unless otherwise provided in this lease, and interest shall accrue on all sums
due but unpaid.
(h) Security Services. Tenant shall provide security services
for the Building and no cost for Building security shall be included in Annual
Operating Expenses.
8. Signs. At Tenant's sole cost, Tenant may place signage upon the Building. At
Tenant's sole cost, Tenant may place interior signage within the Building. Any
and all exterior signage shall be in full accord with Landlord's standard
graphic program for the office park of which the Building is a part and
applicable zoning ordinances and other governmental regulations. All signs
installed by Tenant shall be maintained by Tenant in good condition and Tenant
shall remove all such signs at the termination or expiration of this lease and
shall repair any damage caused by such installation, existence or removal.
Landlord will place: (i) monument signage at the entrance to the office park of
which the Building is a part and (ii) appropriate directional signs so as to
identify the Building, all in accordance with applicable governmental
ordinances.
9. Alterations and Fixtures.
(a) Subject to Section 10, Tenant shall have the right to
install its trade fixtures in the Premises, provided that no such installation
or removal thereof shall affect any structural portion of the Property or any
utility lines, communications lines, equipment or facilities in the Building. At
the expiration or termination of this lease and at the option of Landlord or
Tenant, Tenant shall remove such installation(s) and, in the event of such
removal, Tenant shall repair any damage caused by such installation or removal;
notwithstanding the foregoing, if Tenant, with Landlord's written consent, given
either at the time such items are installed or at the conclusion or termination
of this lease, elects not to remove such installation(s) at the expiration or
termination of this lease, all such installations shall remain on the Property
and become the property of Landlord without payment by Landlord.
(b) Except for non-structural changes, which do not exceed
$20,000 per item and $250,000 in the aggregate in any consecutive twelve (12)
month period, Tenant shall not make or permit to be made any alterations to the
Premises without Landlord's prior written consent, which shall not be
unreasonably withheld, conditioned or delayed. All such alterations shall be
made in a first class manner consistent with a Class A office building. Tenant
shall pay the costs of any required architectural engineering reviews in
connection with any alteration. In making any alterations, (i) Tenant shall
deliver to Landlord the plans, specifications and necessary permits, together
with certificates evidencing that Tenant's contractors and subcontractors have
adequate insurance coverage naming Landlord and Landlord's agent as additional
insureds, at least 10 days prior to commencement thereof, and to the extent
reasonably practicable, incorporate any comments of Landlord to such plans into
the alteration, (ii) such alterations shall not impair the structural strength
of the Building or any other improvements or reduce the value of the Property or
affect any utility lines, communications lines, equipment or facilities in the
Building, (iii) Tenant shall comply with Section 10 and (iv) the occupants of
any adjoining property shall not be disturbed thereby. All alterations to the
Premises by Tenant shall be the property of Tenant until the expiration or
termination of this lease; at that time all such alterations shall remain on the
Property and become the property of Landlord without payment by Landlord unless
Landlord or Tenant gives written notice to the other party for the removal of
same, in which event Tenant will remove such alterations and repair any
resulting damage and restore the Building to its normal useable Class A
condition. At Tenant's request prior to Tenant making any alterations, Landlord
shall notify Tenant in writing, whether Tenant is required to remove such
alterations at the expiration or termination of this lease. If Landlord fails to
respond to such request within ten (10) days of its receipt, such request shall
be deemed disapproved by Landlord such that the alterations shall be removed at
Landlord's option at the conclusion or termination of this lease.
Notwithstanding the foregoing or any other provision contained herein to the
contrary, Tenant may re-carpet and repaint the Premises without Landlord's
consent as often as it desires and without limitation on expense provided that
the carpet is of a grade and quality equal to or better than that originally
installed in the Premises. No such carpet, if of a quality and installation like
or better than that installed by Landlord, shall be required to be removed by
Tenant at the conclusion of this lease.
(c) Landlord agrees that the items noted on Exhibit G,
following its review and approval of the specifications therefor, may remain at
the Premises or shall be removed, as so noted on the exhibit, at the expiration
or termination of this lease.
10. Mechanics' Liens. Tenant shall pay promptly any contractors and materialmen
who supply labor, work or materials to Tenant at the Property and shall take all
steps permitted by law in order to avoid the imposition of any mechanic's lien
upon all or any portion of the Property. Should any such lien or notice of lien
be filed for work performed for Tenant other than by Landlord, Tenant shall bond
against, escrow twice the amount claimed with Landlord's title company or
mortgagee or discharge the same within 10 business days after Tenant has notice
that the lien or claim is filed regardless of the validity of such lien or
claim. Nothing in this lease is intended to authorize Tenant to do or cause any
work to be done or materials to be supplied for the account of Landlord, all of
the same to be solely for Tenant's account and at Tenant's risk and expense.
Throughout this lease the term "mechanic's lien" is used to include any lien,
encumbrance or charge levied or imposed upon all or any portion of, interest in
or income from the Property on account of any mechanic's, laborer's,
materialmen's or construction lien or arising out of any debt or liability to or
any claim of any contractor, mechanic, supplier, materialman or laborer and
shall include any mechanic's notice of intention to file a lien given to
Landlord or Tenant, any stop order given to Landlord or Tenant, any notice of
refusal to pay naming Landlord or Tenant and any injunctive or equitable action
brought by any person claiming to be entitled to any mechanic's lien.
11. Landlord's Right of Entry. Tenant shall permit Landlord and its Agents to
enter the Premises at all reasonable times following reasonable notice (except
in the event of an emergency), for the purpose of inspection, maintenance or
making repairs, alterations or additions as well as to exhibit the Premises for
the purpose of sale or mortgage and, during the last 6 months of the Term, to
exhibit the Premises to any prospective tenant. Landlord will make reasonable
efforts not to inconvenience Tenant in exercising the foregoing rights, but
shall not be liable for any loss of occupation or quiet enjoyment thereby
occasioned. Notwithstanding the foregoing, during such entry to the Premises,
Landlord and its Agents shall be accompanied by a representative of Tenant
(except in the case of emergency); however, Tenant warrants to make such a
representative available to Landlord at all reasonable times and following
reasonable notice; however, in the event of an emergency, Landlord and its
Agents may enter the Premises at their option, but will take reasonable efforts
to notify Tenant and to be accompanied by a representative of Tenant. Landlord
shall comply with Tenant's reasonable security procedures during such entry of
the Building.
12. Damage by Fire or Other Casualty.
(a) If the Premises or Building shall be damaged or destroyed
by fire or other casualty, Tenant promptly shall notify Landlord and Landlord,
subject to the conditions set forth in this Section 12, shall repair such damage
and restore the Premises to substantially the same condition in which they were
immediately prior to such damage or destruction, but not including the repair,
restoration or replacement of the fixtures, upgrades or alterations installed by
Tenant. Landlord shall notify Tenant in writing, within 30 days after the date
of the casualty, if Landlord anticipates that the restoration will take more
than 180 days from the date of the casualty to complete; in such event, Tenant
may terminate this lease effective as of the date of casualty by giving written
notice to Landlord within 10 days after Landlord's notice. Further, if a
casualty occurs during the last year of the Term or any extension thereof (and
the cost of the repair for such casualty exceeds $500,000), Landlord may cancel
this lease unless Tenant has the right to extend the Term for at least 3 more
years and does so within 30 days after the date of the casualty.
(b) If the Premises shall be damaged or shall be rendered
untenantable as a result of a fire or casualty during the Term and Tenant shall
not have exercised its right to terminate this Lease pursuant to Section 12(a)
above, unless otherwise expressly provided herein, Landlord agrees to repair and
restore the Premises in accordance with the terms hereof. If the Premises shall
be damaged and rendered untenantable as a result of a fire or casualty during
the Term, and Tenant shall not have exercised its right to terminate this Lease
pursuant to Section 12 (a) above, and if Landlord fails to or determines it will
be unable to repair that damage to or otherwise restore (other than the
Building's facade) the Premises that Landlord is obligated to repair or restore
pursuant to the provisions of this lease within six (6) months after the date of
the casualty (the "Repair Period"); then, within ten (10) days following the
earlier of such determination or the expiration of the Repair Period, Landlord
shall send to Tenant a notice ("Landlord's Completion Notice") of Landlord's
reasonable estimate as to the time when such repairs will be completed. Tenant
may elect to terminate this Lease by notice (the "Casualty Termination Notice")
to Landlord given not later than ten (10) days following Tenant's receipt of any
Landlord's Completion Notice and ten (10) days following the conclusion of the
Repair Period if Landlord has not completed its repair or restoration. If Tenant
shall fail to timely deliver Casualty Termination Notice to Landlord or shall
elect not to terminate this Lease, then Tenant shall be deemed to have waived
its right to terminate for such event Landlord shall proceed to complete the
repairs required to be performed by Landlord, and Landlord shall periodically
deliver to Tenant reports as to Landlord's progress with respect to such
repairs, which repairs Landlord shall diligently pursue. If Landlord fails to
complete the repairs required to be performed by Landlord above, within the time
period specified in any Landlord's Completion Notice, then within five (5) days
following the expiration of such time period, Landlord shall again send Tenant a
Landlord's Completion Notice and Tenant again may elect to terminate this Lease
by sending to Landlord a Casualty Termination Notice. If Landlord has not
provided a Landlord's Completion Notice within five (5) days of Tenant's notice
to Landlord that it has failed to provide such notice, Tenant may terminate this
lease. The provisions of this paragraph shall be applicable to every instance
where the Landlord shall fail to complete the repairs required to be performed
by Landlord pursuant to this subsection within the time period specified in any
of Landlord's Completion Notice and Tenant shall have elected not to terminate
this Lease.
(c) If, as the result of any fire or other casualty, the
Premises or any portion thereof are rendered untenantable for ninety (90) or
more days, Tenant shall be entitled to an abatement of Rent on a day-to-day
basis from the date the Premises or any portion thereof became untenantable
(which abatement shall be calculated on a prorated basis as to the portion of
the Premises rendered untenantable) until such are once again rendered
tenantable or, in the event that the Premises was substantially damaged and
Tenant is required to substantially re-equip and re-furnish the Premises, until
Tenant re-opens for business in such space but in no event later than one
hundred twenty (120) days after such space is delivered by Landlord to Tenant
fully restored in accordance with this Lease.
(d) Landlord shall maintain a 12-month rental coverage
endorsement or other comparable form of coverage as part of its fire, extended
coverage and special form insurance. Tenant will receive an abatement of its
Minimum Annual Rent and Annual Operating Expenses to the extent the Premises are
rendered untenantable.
13. Condemnation.
(a) Termination. If (i) all of the Premises are taken by a
condemnation or otherwise for any public or quasi-public use, (ii) twenty-five
percent (25%) or more of the Building or the parking spaces for the Building (to
the extent Landlord is unable to restore such items) is so taken and the
remainder thereof is insufficient for the reasonable operation of Tenant's
business in Tenant's sole but reasonable discretion or (iii) any of the Property
is so taken and the condemnation proceeds are insufficient to restore the
remainder of the Property, then this lease shall terminate and all unaccrued
obligations hereunder shall cease as of the day before possession is taken by
the condemnor by the party or parties and under the circumstances noted as
follows: at either party's option if the event described in (i) above occurs, at
Tenant's option if the event described (ii) above occurs or at Landlord's option
if the event described in (iii) occurs; provided, however, if item (iii) above
occurs and Tenant or Landlord pays the difference needed to restore, Landlord
shall restore the Building.
(b) Partial Taking. If there is a condemnation and this lease
has not been terminated pursuant to this Section, (i) Landlord shall restore the
Building and the improvements which are a part of the Premises to a condition
and size as nearly comparable as reasonably possible to the condition and size
thereof immediately prior to the date upon which the condemnor took possession
and (ii) the obligations of Landlord and Tenant shall be unaffected by such
condemnation except that there shall be an equitable abatement of the Minimum
Annual Rent according to the rental value of the Premises before and after the
date upon which the condemnor took possession and/or the date Landlord completes
such restoration.
(c) Award. In the event of a condemnation affecting Tenant,
Tenant shall have the right to make a claim against the condemnor for moving
expenses and business dislocation damages to the extent that such claim does not
reduce the sums otherwise payable by the condemnor to Landlord. Except as
aforesaid and except as set forth in (d) below, Tenant hereby assigns all claims
against the condemnor to Landlord.
(d) Temporary Taking. No temporary taking of the Premises
shall terminate this lease or give Tenant any right to any rental abatement.
Such a temporary taking will be treated as if Tenant had sublet the Premises to
the condemnor and had assigned the proceeds of the subletting to Landlord to be
applied on account of Tenant's obligations hereunder. Any award for such a
temporary taking during the Term shall be applied first, to Landlord's costs of
collection and, second, on account of sums owing by Tenant hereunder, and if
such amounts applied on account of sums owing by Tenant hereunder should exceed
the entire amount owing by Tenant for the remainder of the Term, the excess will
be paid to Tenant.
14. Non-Abatement of Rent. Except as otherwise expressly provided as to damage
by fire or other casualty in Section 12(b) and as to condemnation in Section
13(b) and as otherwise specifically noted in this lease, there shall be no
abatement or reduction of the Rent for any cause whatsoever, and this lease
shall not terminate, and Tenant shall not be entitled to surrender the Premises.
15. Indemnification.
(a) Tenant Indemnification. Subject to Sections 7(c)(iii) and
16, Tenant will protect, indemnify and hold harmless Landlord and its Agents
from and against any and all claims, actions, damages, liability and expense
(including reasonable fees of attorneys, investigators and experts) in
connection with loss of life, personal injury or damage to property in or about
the Premises and caused by Tenant or its Agents or arising out of the occupancy
or use of the Premises by Tenant or its Agents or occasioned wholly or in part
by any act or omission of Tenant or its Agents, except to the extent such loss,
injury or damage was caused by the negligence of Landlord or its Agents. In case
any action or proceeding is brought against Landlord and/or its Agents by reason
of the foregoing, Tenant, at its expense, shall resist and defend such action or
proceeding, or cause the same to be resisted and defended by counsel (reasonably
acceptable to Landlord and its Agents) designated by the insurer whose policy
covers such occurrence or by counsel designated by Tenant and approved by
Landlord and its Agents. Tenant's obligations pursuant to this Section 15 shall
survive the expiration or termination of this lease.
(b) Landlord Indemnification. Subject to Sections 7(c)(iii)
and 16, Landlord will protect, indemnify and hold harmless Tenant and its Agents
from and against any and all claims, actions, damages, liability and expense
(including fees of attorneys, investigators and experts) in connection with loss
of life, personal injury or damage to property caused to any person in or about
the Premises occasioned wholly or in part by any act or omission of Landlord or
its Agents, except to the extent such loss, injury or damage was caused by the
negligence of Tenant or its Agents. In case any action or proceeding is brought
against Tenant and/or its Agents by reason of the foregoing, Landlord, at its
expense, shall resist and defend such action or proceeding, or cause the same to
be resisted and defended by counsel (reasonably acceptable to Tenant and its
Agents) designated by the insurer whose policy covers such occurrence or by
counsel designated by Landlord and approved by Tenant and its Agents. Landlord's
obligations pursuant to this Section 15 shall survive the expiration or
termination of this lease. 16. Waiver of Claims. To the extent any claim of a
party hereto for recovery against the other for any loss or damage which may be
inflicted upon the property of such party: (i) is covered by insurance, (ii) is
required hereunder to be covered by insurance or (iii) arises other than solely
due to the gross negligence of willful misconduct of Landlord or Tenant, as the
case may be, Landlord and Tenant each hereby waive any and all such claims even
if such loss or damage shall be brought about by the fault or negligence of the
other party or its Agents; provided, however, that such waiver by Landlord shall
not be effective with respect to any liability of Tenant described in Section
4(c).
17. Quiet Enjoyment. Landlord covenants that Tenant, upon performing all of its
covenants, agreements and conditions of this lease, shall have quiet and
peaceful possession of the Premises as against anyone claiming by or through
Landlord, subject, however, to the exceptions, reservations and conditions of
this lease.
18. Assignment and Subletting.
(a) Limitation. Tenant shall not transfer this lease,
voluntarily or by operation of law, without the prior written consent of
Landlord which shall not be withheld, conditioned or delayed unreasonably.
However, Landlord's consent shall not be required in the event of any transfer
by Tenant to an affiliate of Tenant and provided Tenant delivers to Landlord the
instrument described in Section (c)(iii) below. Any transfer not in conformity
with this Section 18 shall be void at the option of Landlord, and Landlord may
exercise any or all of its rights under Section 23. A consent to one transfer
shall not be deemed to be a consent to any subsequent transfer. "Transfer" shall
include any sublease, assignment, license or concession agreement, mortgage or
hypothecation of this lease or Tenant's interest therein or in all or a portion
of the Premises. Notwithstanding anything to the contrary contained herein,
without the consent of Landlord, this lease may be assigned to (i) an entity
created by a merger, reorganization or recapitalization of or with Tenant, or
(ii) a purchaser of substantially all of Tenant's assets or stock, provided, in
case of both clauses (i) and (ii), (A) Landlord shall receive notice of such
assignment from Tenant, and (B) the Assignee and Tenant execute and deliver to
Landlord an assumption of lease pursuant to which such Assignee assumes all of
Tenant's obligations under this lease and Tenant agrees to remain liable
hereunder if Tenant exists following such event, (C) such Assignment is for a
valid business purpose and not to avoid any obligation under this lease, and (D)
the net worth of the surviving entity, purchaser or assignee and its annual
gross revenues at the time of such assignment are both equal to or greater than
the net worth and annual gross revenues of Tenant as of the date of this lease
or on the date of such assignment, whichever is the lesser.
(b) Conditions. Notwithstanding the above, the following shall
apply to any transfer, with or without Landlord's consent:
(i) As of the date of any transfer, Tenant shall not
be in default under this lease nor shall any act or omission have occurred which
would constitute a default with the giving of notice and/or the passage of time.
(ii) No transfer shall relieve Tenant of its
obligation to pay the Rent and to perform all its other obligations hereunder.
The acceptance of Rent by Landlord from any person shall not be deemed to be a
waiver by Landlord of any provision of this lease or to be a consent to any
transfer.
(iii) Each transfer shall be by a written instrument
in form and substance satisfactory to Landlord which shall (A) include an
assumption of liability by any transferee of all Tenant's obligations and the
transferee's ratification of and agreement to be bound by all the provisions of
this lease, (B) afford Landlord the right of direct action against the
transferee pursuant to the same remedies as are available to Landlord against
Tenant and (C) be executed by Tenant and the transferee.
(iv) Tenant shall pay, within 10 days of receipt of
an invoice which shall be no less than $250, Landlord's reasonable attorneys'
fees and costs in connection with the review, processing and documentation of
any transfer for which Landlord's consent is requested.
19. Subordination: Mortgagee's Rights.
(a) This lease shall be subordinate to any first mortgage or
other primary encumbrance now or hereafter affecting the Premises, provided that
Landlord's mortgagee or other encumbering party provides Tenant an SNDA, in a
form reasonably acceptable to the parties. Although the subordination is
self-operative, within 10 days after written request, Tenant shall execute and
deliver any further reasonable instruments confirming such subordination of this
lease and any further instruments of attornment required by any such mortgagee,
including without limitation, any subordination, non-disturbance and attornment
agreement ("SNDA"), but such SNDA shall not materially alter or be inconsistent
with or contravene the terms of this lease; however, any mortgagee may at any
time subordinate its mortgage to this lease, without Tenant's consent, by giving
written notice to Tenant, and thereupon this lease shall be deemed prior to such
mortgage without regard to their respective dates of execution and delivery;
provided, however, that such subordination shall not affect any mortgagee's
right to condemnation awards, casualty insurance proceeds, intervening liens or
any right which shall arise between the recording of such mortgage and the
execution of this lease if such mortgagee is recorded prior to the Effective
Date of this lease. Landlord agrees that it shall obtain an SNDA from its
mortgagee in favor of Tenant, as noted above within 30 days from the date
requested.
(b) It is understood and agreed that any mortgage shall not be
liable to Tenant for any funds paid by Tenant to Landlord unless Landlord
actually has transferred such funds to such mortgagee.
20. Recording; Tenant's Certificate. Tenant shall not record this lease but
Landlord and Tenant shall execute a memorandum thereof in recordable form, which
may be recorded at either party's request and expense. At the conclusion or
expiration of this lease, Tenant shall, within 5 business days of a request from
Landlord, execute a release of the aforesaid memorandum. In the event Tenant
fails to execute such document, Tenant hereby grants Landlord a limited power of
attorney and hereby appoints Landlord its attorney-in-fact solely for the
purpose of executing a document whose sole purpose is to release such memorandum
of record. Within 7 business days after Landlord's or Tenant's written request
from time to time:
(a) Landlord and Tenant shall execute, acknowledge and deliver
to the other party a written statement certifying the Commencement Date and
Expiration Date of this lease, that this lease is in full force and effect and
has not been modified and otherwise as set forth in the form of estoppel
certificate attached as Exhibit "E" or with such modifications as may be
necessary to reflect accurately the stated facts and/or such other
certifications as may be requested by Tenant, Landlord or a mortgagee or
purchaser of Landlord.
(b) In the event Tenant ceases to be publicly traded, Tenant
shall furnish to Landlord, Landlord's mortgagee, prospective mortgagee or
purchaser reasonably requested financial information.
21. Surrender; Abandoned Property.
(a) Subject to the terms of Sections 9(b), 12(a), 13(b) and
Exhibit G, at the expiration or termination of this lease, Tenant promptly shall
yield up in the same condition, order and repair in which they are required to
be kept throughout the Term, the Premises and all improvements thereto, and all
fixtures and equipment servicing the Building, ordinary wear and tear and
casualty excepted.
(b) Upon or prior to the expiration or termination of this
lease, Tenant shall remove any personal property from the Property. Any personal
property remaining thereafter shall be deemed conclusively to have been
abandoned, and Landlord, at Tenant's expense, may remove, store, sell or
otherwise dispose of such property in such manner as Landlord may see fit and/or
Landlord may retain such property as its property. If any part thereof shall be
sold, then Landlord may receive and retain the proceeds of such sale and apply
the same, at its option, against the expenses of the sale, the cost of moving
and storage and any Rent due under this lease.
(c) If Tenant, or any person claiming through Tenant, shall
continue to occupy the Premises after the expiration or termination of this
lease or any renewal thereof, such occupancy shall be deemed to be under a
month-to-month tenancy under the same terms and conditions set forth in this
lease, except that the monthly installment of the Minimum Annual Rent during
such continued occupancy shall be 150% the amount applicable to the last month
of the Term if Tenant has given Landlord at least ninety (90) days prior written
notice if it intends to holdover and in such event it may holdover for sixty
(60) days at such rate. Thereafter, or in the event such prior written notice is
not given, the Minimum Annual Rent during any holdover shall be double the
amount applicable to the last month of the term. Anything to the contrary
notwithstanding, any holding over by Tenant without Landlord's prior written
consent shall constitute a default hereunder and shall be subject to all the
remedies available to Landlord.
22. Curing Defaults.
(a) If Tenant shall be in default, beyond any applicable
notice and cure period, in the performance of any of its obligations hereunder,
Landlord, without any obligation to do so, in addition to any other rights it
may have in law or equity, may elect to cure such default on behalf of Tenant
after ten (10) days written notice (except in the case of emergency or waste to
the Building) to Tenant. Tenant shall reimburse Landlord upon demand for any
sums paid or costs incurred by Landlord in curing such default, including
interest thereon from the respective dates of Landlord's incurring such costs,
which sums and costs together with interest shall be deemed additional rent.
(b) If Landlord shall default in the performance or observance
of any agreement or condition in this lease contained on its part to be
performed or observed, and Landlord shall not cure such default within thirty
(30) days or sooner period m the event of an emergency after notice from Tenant
specifying the default, or, if such default is not able to be cured within such
thirty (30) day period, Landlord has not during such thirty (30) day period
commenced to cure such default and thereafter diligently and continuously
pursues curing such default, Tenant may, at any a thereafter, cure such default
for the account of Landlord, and all reasonable amounts paid or all reasonable
contractual liabilities incurred by Tenant in so doing shall be deemed paid or
incurred for the account of Landlord, and Landlord agrees to reimburse Tenant
within ten (10) days of demand therefore; provided that Tenant may, without
waiving any claim for damages on account of such breach, cure any such default
as aforesaid prior to the expiration of said thirty (30) day period, if the
curing of such default prior to the expiration of said thirty (30) day period is
reasonably necessary to protect the Premises or Tenant's interest therein, or to
prevent injury or damage to persons or property so long as Tenant first uses
reasonable efforts to notify Landlord of the need for such repair and permits
Landlord a reasonable opportunity to cure such default.
(c) In the event Landlord fails to perform any repair
obligations under Section 7(d)(ii) hereof, Tenant shall send Landlord written
notice of such failure. If Landlord fails to initiate and diligently pursue such
repair within thirty (30) days of such notice, Tenant shall send Landlord a
second written notice of such failure. If and only if Landlord fails to initiate
and diligently pursue such repair within fifteen (15) days of such second
notice, Tenant may make such repair pursuant to its rights noted in Section
22(b) above and shall send Landlord a notice of such event. Landlord and Tenant
shall then each select an institutional third party property manager who shall
together select a third institutional third party property manager (the
"Evaluator"). The Evaluator shall determine and/or engage other professionals to
assist in the determination, within thirty (30) days of its engagement, all at
the sole cost of Tenant, whether Landlord should have performed the requested
repair pursuant to the terms of this lease. The parties agree that Tenant shall
bear the burden to document the need for such repair and any such failure shall
be construed against Tenant. The determination by the Evaluator shall not be
evidence of whether such repair is required hereunder and shall be of no affect,
except to permit Tenant to take the actions noted in this Section 22(c) and
shall in no way limit Landlord's right to bring an action against Tenant for
such nonpayment of Rent, its costs incurred pursuant to such action and interest
thereon, and including without limitation, attorney's fees and costs. If the
Evaluator determines that Landlord should have performed such repair, Tenant may
offset the commercially reasonable cost of such repair against Rent due
hereunder. If, however, the Evaluator determines that the repair was not
required hereunder, then, without limiting Tenant's right to bring an action for
the payment of the reasonable cost of such repair if required to be made by
Landlord hereunder, its costs incurred pursuant to such action and interest
thereon, and including without limitation, attorney's fees and costs, Tenant may
not offset as noted above and shall pay all sums due hereunder as they become
due.
23. Defaults - Remedies.
(a) Defaults. It shall be an event of default:
(i) If Tenant does not pay in full when due any and
all Rent;
(ii) If Tenant fails to observe and perform or
otherwise breaches any other provision of this lease;
(iii) If Tenant abandons the Premises, which shall be
conclusively presumed if the Premises remain unoccupied for more than 10
consecutive days, or removes or attempts to remove Tenant's goods or property
other than in the ordinary course of business; or
(iv) If Tenant becomes insolvent or bankrupt in any
sense or makes a general assignment for the benefit of creditors or offers a
settlement to creditors, or if a petition in bankruptcy or for reorganization or
for an arrangement with creditors under any federal or state law is filed by or
against Tenant, or a xxxx in equity or other proceeding for the appointment of a
receiver for any of Tenant's assets is commenced, or if any of the real or
personal property of Tenant shall be levied upon; provided, however, that any
proceeding brought by anyone other than Landlord or Tenant under any bankruptcy,
insolvency, receivership or similar law shall not constitute a default until
such proceeding has continued unstayed for more than 60 consecutive days.
(b) Remedies. Then, and in any such event, Landlord shall have
any and all the following rights:
(i) To charge a late payment fee equal to the greater
of $100 or 5% of any amount owed to Landlord pursuant to this lease which is not
paid within 5 days after the due date.
(ii) To enter and repossess the Premises and remove
all persons and all or any property therefrom, by action at law or otherwise,
without being liable for prosecution or damages therefor, and Landlord may, at
Landlord's option, make alterations and repairs in order to relet the Premises
and relet all or any parts) of the Premises for Tenant's account. Tenant agrees
to pay to Landlord on demand any deficiency that may arise by reason of such
reletting. In the event of reletting without termination of this lease, Landlord
may at any time thereafter elect to terminate this lease for such previous
breach.
(iii) Without limiting any other right or remedy of
Landlord pursuant to this lease, or at law or in equity, to elect to collect one
of the following (x) the amount (the "Deficiency") by which (A) the Rent
reserved under this Lease until the stated expiration date of the then current
Term exceeds (B) the amount of rent, if any, that Landlord shall receive during
the same period from others to whom the Premises may be rented or (y) an amount
equal to the present worth (as of the date of such termination) of Rent which,
but for the termination of this lease, would have become due during the
remainder of the Term, less the fair rental value of the Premises for the
remainder of the Term payable to Landlord in one lump sum on demand. For the
purposes of this subparagraph, "present worth" shall be computed by discounting
such amount to present worth at a discount rate equal to one percentage point
above the discount rate then in effect at the Federal Reserve Bank nearest to
the location of the Premises.
(iv) To terminate this lease and the Term without any
right on the part of Tenant to save the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken.
(c) Grace Period. Notwithstanding anything hereinabove stated,
neither party will exercise any available right because of any default of the
other, except those remedies contained in subsection (b)(i) of this Section
unless such party shall have first given 10 days written notice thereof to the
defaulting party, and the defaulting party shall have failed to cure the default
within such period; provided, however, that:
(i) Notwithstanding anything to the contrary
contained herein, if Tenant fails to comply with the provisions of Sections 10
(in which case ten (10) days prior written notice shall be required) or 20(a)
(in which case ten (10) days prior written notice shall be required) and in the
case of emergency as set forth in Section 22 or in the event of any default
enumerated in subsections (a)(iii) and (iv) of this Section (in which case no
prior written notice shall be required), the notice periods contained in this
Section shall not apply,
(ii) Landlord shall not be required to give such 10
days notice more than 2 times during any 12 month period.
(iii) If the default consists of something other than
the failure to pay money which cannot reasonably be cured within 15 days,
neither party will exercise any right if the defaulting party begins to cure the
default within the 15 days and continues actively and diligently in good faith
to completely cure said default.
(iv) Tenant agrees that any notice given by Landlord
pursuant to this Section which is served in compliance with Section 27 shall be
adequate notice for the purpose of Landlord's exercise of any available
remedies.
(d) Non-Waiver; Non-Exclusive. No waiver by Landlord of any
breach by Tenant shall be a waiver of any subsequent breach, nor shall any
forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by
Landlord of any rights and remedies with respect to such or any subsequent
breach. Efforts by Landlord to mitigate the damages caused by Tenant's default
shall, not constitute a waiver of Landlord's right to recover damages hereunder.
No right or remedy herein conferred upon or reserved to Landlord is intended to
be exclusive of any other right or remedy provided herein or by law, but each
shall be cumulative and in addition to every other right or remedy given herein
or now or hereafter existing at law or in equity. No payment by Tenant or
receipt or acceptance by Landlord of a lesser amount than the total amount due
Landlord under this lease shall be deemed to be other than on account, nor shall
any endorsement or statement on any check or payment 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 Rent due, or Landlord's right to
pursue any other available remedy.
(e) Costs and Attorneys' Fees. If either party commences an
action against the other party arising out of or in connection with this lease,
the prevailing party shall be entitled to have and recover from the losing party
reasonable attorneys' fees, costs of suit, investigation expenses and discovery
costs including costs of appeal.
24. Representations.
(a) Tenant represents to Landlord and agrees that:
(i) The word "Tenant" as used herein includes the
Tenant named above as well as its successors and assigns, each of which shall be
under the same obligations and liabilities and each of which shall have the same
rights, privileges and powers as it would have possessed had it originally
signed this lease as Tenant. Each and every of the persons named above as Tenant
shall be bound jointly and severally by the terms, covenants and agreements
contained herein. However, no such rights, privileges or powers shall inure to
the benefit of any assignee of Tenant immediate or remote, unless Tenant has
complied with the terms of Section 18 and the assignment to such assignee is
permitted or has been approved in writing by Landlord. Any notice required or
permitted by the terms of this lease may be given by or to any one of the
persons named above as Tenant, and shall have the same force and effect as if
given by or to all thereof.
(ii) If Tenant is a corporation, partnership or any
other form of business association or entity, Tenant is duly formed and in good
standing, and has full corporate or partnership power and authority, as the case
may be, to enter into this lease and has taken all corporate or partnership
action, as the case may be, necessary to carry out the transaction contemplated
herein, so that when executed, this lease constitutes a valid and binding
obligation enforceable in accordance with its terms. Tenant shall provide
Landlord with corporate resolutions or other proof in a form acceptable to
Landlord, authorizing the execution of this lease at the time of such execution.
(b) Landlord hereby represents to Tenant and agrees that
Landlord is a duly formed limited partnership and in good standing and has full
partnership power and authority to enter into this Lease and had taken all
partnership action necessary to carry out the transaction contemplated herein,
so that when executed this Lease constitutes a valid and binding obligation
enforceable in accordance with its terms.
25. Liability of Landlord. The word "Landlord" as used herein includes the
Landlord named above as well as its successors and assigns, each of which shall
have the same rights, remedies, powers, authorities and privileges as it would
have had if it originally signed this lease as Landlord. Any such person or
entity, whether or not named herein shall have no liability hereunder after it
ceases to hold title to the Premises except for obligations already accrued
(and, as to any unapplied portion of Tenant's Security Deposit, Landlord shall
be relieved of all liability therefor upon transfer of such portion to its
successor in interest) and Tenant shall look solely to Landlord's successor in
interest for the performance of the covenants and obligations of the Landlord
hereunder which thereafter shall accrue. Neither Landlord nor any principal of
Landlord nor any owner of the Property, whether disclosed or undisclosed, shall
have any personal liability with respect to any of the provisions of this lease
or the Premises, and if Landlord is in breach or default with respect to
Landlord's obligations under this lease or otherwise, Tenant shall look solely
to the equity of Landlord in the Property for the satisfaction of Tenant's
claims. No mortgagee or ground lessor succeeding to the interest of Landlord
hereunder (either in terms of ownership or possessory rights) shall be (a)
liable for any previous act or omission of a prior landlord, (b) subject to any
rental offsets, except as provided herein or (c) bound by payment by Tenant of
Minimum Annual Rent in advance in excess of one monthly installment.
26. Interpretation; Definitions.
(a) Captions. The captions in this lease are for convenience
only and do not in any way define, limit, describe or amplify the terms and
provisions of this lease or the scope or intent thereof.
(b) Entire Agreement. This lease represents the entire
agreement between the parties hereto and there are no collateral or oral
agreements or understandings between Landlord and Tenant with respect to the
Premises or the Property. No rights, easements or licenses are acquired in the
Property or any land adjacent to the Property by Tenant by implication or
otherwise except as expressly set forth in the provisions of this lease. This
lease shall not be modified in any manner except by an instrument in writing
executed by the parties. The masculine (or neuter) pronoun and the singular
number shall include the masculine, feminine and neuter genders and the singular
and plural number. The word "including" followed by any specific items is deemed
to refer to examples rather than to be words of limitation. Both parties having
participated fully and equally in the negotiation and preparation of this lease,
this lease shall not be more strictly construed nor any ambiguities in this
lease resolved, against either Landlord or Tenant.
(c) Covenants. Each covenant agreement, obligation, term,
condition or other provision herein contained shall be deemed and construed as a
separate and independent covenant of the party bound by, undertaking or making
the same, not dependent on any other provision of this lease unless otherwise
expressly provided. All of the terms and conditions set forth in this lease
shall apply throughout the Term unless otherwise expressly set forth herein.
(d) Interest. Wherever interest is required to be paid
hereunder, such interest shall be at the highest rate permitted under law but
not in excess of 12.5% per annum.
(e) Severability; Governing Law. If any provisions of this
lease shall be declared unenforceable in any respect such unenforceability shall
not affect any other provision of this lease, and each such provision shall be
deemed to be modified, if possible, in such a manner as to render it enforceable
and to preserve to the extent possible the intent of the parties as set forth
herein. This lease shall be construed and enforced in accordance with the laws
of the state in which the Property is located.
(f) "Mortgage" and "Mortgagee." The word "mortgage" as used
herein includes any lien or encumbrance on the Premises or the Property or on
any part of or interest in or appurtenance to any of the foregoing, including
without limitation any ground rent or ground lease if Landlord's interest is or
becomes a leasehold estate. The word "mortgagee" as used herein includes the
holder of any mortgage, including any ground lessor if Landlord's interest is or
becomes a leasehold estate. Wherever any right is given to a mortgagee, that
right may be exercised on behalf of such mortgagee by any representative or
servicing agent of such mortgagee.
(g) "Person." The word "person" is used herein to include a
natural person, a partnership, a corporation, an association and any other form
of business association or entity.
27. Notices. Any notice or other communication under this lease shall be in
writing and addressed to Landlord or Tenant at their respective addresses
specified at the beginning of this lease, (or to such other address as either
may designate by notice to the other) with a copy to any mortgagee or other
party designated by Landlord. Each notice or other communication shall be deemed
given if sent by prepaid overnight delivery service or by certified mail, return
receipt requested, postage prepaid or in any other manner, with delivery in any
case evidenced by a receipt, and shall be deemed received on the day of actual
receipt by the intended recipient or on the business day delivery is refused.
The giving of notice by Landlord's attorneys, representatives and agents under
this Section shall be deemed to be the acts of Landlord; however, the foregoing
provisions governing the date on which a notice is deemed to have been received
shall mean and refer to the date on which a party to this lease, and not its
counsel or other recipient to which a copy of the notice may be sent, is deemed
to have received the notice.
28. Security Deposit. RESERVED
29. Commission.
(a) Tenant and Landlord represent and warrant to each other
that Xxxxxx Realty, Inc. and The Garibaldi Group are the only outside brokers or
finders that each has had any dealings, negotiations or consultations with
relating to the Premises or this transaction on behalf of Tenant and that no
other broker or finder called the Premises to Tenant's attention for lease or
took any part in any dealings, negotiations or consultations relating to the
Premises or this lease on Tenant's behalf.
(b) Landlord shall pay a commission to Xxxxxx Realty, Inc. and
The Garibaldi Group pursuant to the terms of a separate agreement.
(c) Tenant agrees to be responsible for, indemnify, defend and
hold harmless Landlord from and against all costs, fees (including, without
limitation, attorneys' fees), expenses, liabilities and claims incurred or
suffered by Landlord arising from any breach by Tenant of Tenant's foregoing
representation and warranty. Landlord agrees to be responsible for, indemnify,
defend and hold harmless Tenant from and against all costs, fees (including,
without limitation, attorneys' fees), expenses, liabilities and claims incurred
or suffered by Tenant arising from any breach by Landlord of Landlord's
foregoing representation and warranty.
30. Option To Extend Term (Fixed Amount Rental Increase). Provided that Landlord
has not given Tenant notice of default more than two (2) times in the year
preceding the Expiration Date, that there then exists no event of default by
Tenant under this lease nor any event that with the giving of notice and/or the
passage of time would constitute a default, and that Tenant is the sole occupant
of at least fifty percent (50%) of the Premises, Tenant shall have the right and
option to extend the Term for the Building for two (2) additional periods of
sixty (60) months each, exercisable by giving Landlord prior written notice, at
least one (1) year in advance of the Expiration Date of the then current Term as
to such Building, of Tenant's election to extend the Term; it being agreed that
time is of the essence and that this option is personal to Tenant but is
transferable to any permitted assignee or sublessee (regardless of whether any
such assignment or sublease was made with or without Landlord's consent) or
other party. Landlord and Tenant agree that this option shall not expire until
ten (10) days after Landlord has given Tenant written notice that Tenant has
failed to exercise or waive such option. Such extensions shall be under the same
terms and conditions as provided in this lease except as follows:
(a) each additional period shall begin on the Expiration Date
and thereafter the Expiration Date shall be deemed to be the fifth anniversary
thereof;
(b) all references to the Term in this lease shall be deemed
to mean the Term as extended pursuant to this Section;
(c) Tenant's right and option to extend the Term for two (2)
additional periods as described above shall decrease by one (1) additional
period for each such additional period that Tenant extends the Term;
(d) the Minimum Annual Rent payable by Tenant for the Phase II
Building during each additional period shall be as follows:
Additional Period 1:
Lease Year Annual Monthly
---------------- ------------------ -------------------
11 $862,500.00 $71,875.00
12 $886,218.75 $73,851.56
13 $910,589.77 $75,882.48
14 $935,630.99 $77,969.25
15 $961,360.84 $80,113.40
Additional Period 2:
Lease Year Annual Monthly
---------------- ------------------ -------------------
11 $ 987,798.26 $82,316.52
12 $1,014,962.71 $84,580.22
13 $1,042,874.18 $86,906.18
14 $1,071,553.22 $89,296.10
15 $1,101,020.93 $91,751.74
31. Naming Rights. Landlord intends to name the project encompassing the
Building the "Liberty Executive Center"; however, Landlord reserves the right to
alter such names until substantial Completion, at its option.
32. Parking. The Premises shall contain at least five hundred (500) parking
spaces.
33. Rooftop Communications Equipment. Tenant shall have the right, at its sole
cost and expense, which right shall not be exclusive, to install and maintain an
antenna or satellite dish or other communications receiving/sending equipment
(the "Equipment") on the roof of the Building, subject to the terms and
conditions of this paragraph. Further, such work shall be aesthetically
pleasing, not visible to the extent reasonably required by Landlord and of a
first-class nature. The roof shall be resealed and repaired following the
installation of such equipment. In the event Tenant desires to install and
operate the Equipment, Tenant shall provide prior written notice thereof to
Landlord, which notice shall include the plans and specifications (the "Plans")
for the Equipment prepared by qualified engineers showing all aesthetic,
structural mechanical, and electrical details thereof and of the necessary
structural and other changes to the Building required to accommodate the same.
Tenant shall not install or operate the Equipment unless and until Landlord
shall have approved the Plans, which approval will not be unreasonably withheld,
conditioned or delayed. Any and all structural, electrical or other mechanical
changes to the Building and any and all roof or wall penetrations must be
specifically approved in writing by the Landlord and shall be performed by a
contractor or contractors approved in writing by Landlord. The Equipment shall
be installed and operated in accordance with the approved Plans, in a good and
workmanlike manner and in compliance with all applicable federal, state, and
local laws, statutes, codes and ordinances and shall be properly licensed by all
applicable governmental authorities. Tenant shall be solely responsible and
liable for the maintenance of the Equipment, including the rooftop area it is
installed on, during the Term. Tenant shall be responsible for any damage to
said roof or other parts of the Building due to the installation, inspection,
maintenance, or operation of such Equipment. Tenant's installation, operation
and maintenance of the Equipment shall not in any way impair Landlord's roof
warranty. Upon the expiration or earlier termination of this Lease, Tenant shall
immediately remove the Equipment from the Building, and Tenant shall repair any
damage caused by the removal thereof and shall restore the portions of the
Building affected by the Equipment to the condition existing prior to the
installation thereof (ordinary wear and tear, other than as caused by the
equipment, excepted). In the event Tenant fails to so remove the Equipment and
repair and restore the Building and dispose of the Equipment, Landlord may do
so, at the sole risk and expense of Tenant, and Tenant shall reimburse Landlord
for all costs and expenses incurred in connection therewith upon thirty (30)
days written notice.
34. Tenant Credits. In the event Tenant obtains a waiver for Landlord of any
construction fees included in Landlord's budget for the construction of the
Building, including without limitation, for the City of Chesapeake and the
Hampton Roads Sanitation District water and/or sewer connection fees, the sum so
not expended by Landlord shall be a credit to Tenant applied against the cost of
any Tenant's Work, or if not so applied, against the Minimum Annual Rent.
35. Phase I Building. This lease shall be contingent upon Landlord and Tenant
executing a lease for the property adjacent to the Property shown on Exhibit A
as Phase I (the "Phase I Building").
36. Cross-Default. At the sole option of Landlord, a default under this lease
shall be deemed a default under the Phase I Lease, and/or a default under the
Phase I Lease shall be deemed a default hereunder.
37. Consents. When either Landlord's or Tenant's consent is required or provided
for in this lease, unless otherwise specifically noted herein, such consent
shall not be unreasonably withheld, conditioned delayed or denied.
38. Phase II Start. Tenant is hereby granted the right to delay Landlord's
initiation of the construction of the Phase II Building, notwithstanding
anything to the contrary contained herein, according to the following terms:
(a) Tenant shall pay to Landlord upon the date Landlord takes
title to the Property the sum of Eleven Thousand and 00/100 Dollars ($11,000.00)
plus Tenant's proportionate share of the office park expenses for the Property
per month until the Start Notice, as defined below, has been given. The
aforesaid sums shall accrue until and be paid on March 1, 2001. Additional sums
due under this Section 38(a) shall be paid monthly beginning March 1, 2001.
Notwithstanding the foregoing, if the Start Notice has been given prior to March
1, 2001, no sums shall be due pursuant to this Section 38(a).
(b) Tenant shall provide Landlord with written notice of its
desire for Landlord to begin the construction of the Building, which notice
shall be deemed given on, if not given prior to, March 1, 2002 (the "Start
Notice").
(c) Notwithstanding anything to the contrary contained herein,
the Delivery Date shall be deemed to be the date which is ten (10) months
following the date of the Start Notice, and each and every date noted in Section
3(d) and 3(f) of this lease shall be extended by the same period as the Delivery
Date is extended pursuant to this Section. [For example, if the Delivery Date is
extended to March 2002, then the end of the grace period noted in Section 3(d)
shall be extended to March 31, 2002.]
(d) Tenant shall maintain the right to a forty-five (45)
"fit-out" period for its installations in the Building as noted in Section
3d(ix) above.
(e) The Minimum Annual Rent due hereunder (including during
any extension period as noted is Section 30 hereof) is hereby modified according
to the following schedule:
(i) If the Start Notice is given on or prior to March
1, 2001, the Minimum Annual Rent shall be unchanged as the Completion Date will
not be delayed by Tenant pursuant to this Section.
(ii) If the Start Notice is given on February 1,
2002, the Minimum Annual Rent shall be increased two and one-half percent (2.4%)
during each lease hereof.
(iii) If the Start Notice is given prior to February
1, 2002 but following March 1, 2001, the Minimum Annual Rent shall be increased
(for each lease year hereof) by .20% for each month period that has passed. [For
example, a Start Notice given on March 25, 2001 shall increase the Minimum
Annual Rent by .20%; a Start Notice given on April 5, 2001 shall increase the
Minimum Annual Rent by .40%; and a Start Notice given on June 15, 2001 shall
increase the Minimum Annual Rent by .80%.]
IN WITNESS WHEREOF, and in consideration of the mutual entry into this lease and
for other good and valuable consideration, and intending to be legally bound,
Landlord and Tenant have executed this lease.
Date signed: Landlord:
LIBERTY PROPERTY LIMITED PARTNERSHIP
9/5/00 By: Liberty Property Trust, Sole
---------------- General Partner
By: XXXX X. XXXXXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Senior Vice President
By:
---------------------------------
Name:
Title:
Date signed: Tenant:
8/31/00 DENDRITE INTERNATIONAL, INC.
----------------
Attest:
XXXXXXX X. XXXXXXXX By: XXXX X. XXXXXX
------------------------------------ --------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxx
Title: Program Manager Title: Chairman and Chief
Executive Officer
