1
CIENA
C&S CORRIDOR-32 LIMITED PARTNERSHIP
LEASE AGREEGMENT
CIENA CORPORATION
COVER LETTER
DATED: October 5, 1995
This Lease Agreement (the "Lease") is made between C&S CORRIDOR-32 LIMITED
PARTNERSHIP ("Landlord") and CIENA CORPORATION ("Tenant"), and consists of this
Cover Letter, the attached General Terms and Conditions of the Lease Agreement,
and any exhibits and/or riders hereto. For purposes of this Lease, the following
terms, when used in the attached General Terms and Conditions, shall have the
meaning set forth below.
1. THE PARTIES
A. Tenant: CIENA CORPORATION, a Delaware Corporation
B. Tenant's Current Address
0000-X Xxxxxx Xxxx
Xxxxxxx, XX 00000
C. Tenant's Address and Contact at the Premises
Name: Xxxxxx X. Xxxxxxxx, CFO
Address: 0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
D. Landlord C&S Corridor-32 Limited Partnership
E. Landlord's Address:
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000 FAX (000) 000-0000
F. Landlord's Representative: Xx. Xxxx Xxxxxx
G. Managing Agent: Xxxxxxx & Xxxxx Properties, Inc.
2. DESCRIPTION OF PREMISES:
A. Premises: 50,550 gross square feet, being the entirety of
the Building, along with parking spaces more
particularly described on the plans by Xxxxxxxx
dated September 28, 1995 for the Premises and
landscaped areas around the Building, all as
shown on Exhibit A.
B. Building: The building located at 0000 Xxxxxxxx Xxxx,
Xxxxxx, XX 00000.
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C. Real Property: The Building and Lot C-2 as shown on the plat
entitled Corridor Industrial Park, Section 1,
Parcels C-2, C-3, C-4, a Resubdivision of Parcel
C-1, Sheet 1 of 1," which plat is recorded among
the Land Records of Xxxxxx County, Maryland, as
Plat No. 6013, the lot upon which the Building
is situated, together with the non-exclusive
access rights reflected on such plat as more
particularly described in Exhibit G attached
hereto and made a part hereof. Lot C-2 contains
approximately 4.115 acres, more or less.
D. Project Corridor 32 Business Center
E. Permitted Uses: office, research, manufacturing and storage, and
uses incidental thereto
F. Project Covenants: The Project covenants of record are available
for inspection in the offices of the
Landlord.
3. TERM:
A. Term: An initial term of six (6) years; one five-year renewal
option
B. Commencement Date: January 1, 1996 (as same may be adjusted
pursuant to the provisions of Section 7.4 of
the Lease).
C. Estimated Commencement Date: January 1, 1996
Estimated Expiration Date: December 31, 2001
4. RENT:
A. Total Basic Rent Schedule:
Monthly
Rate Per Gross Installment Period
Period Square Ft Square Ft of Basic Rent Total
------ --------- --------- ------------- -----
Months 1-12 $9.00 38,850* $29,137.50 $349,650.00
Months 13-24 8.57 50,550 36,118.75 433,425.00
Months 25-36 8.57 50,550 36,118.75 433,425.00
Months 37-48 8.92 50,550 37,575.67 450,908.00
Months 49-60 8.98 50,550 37,848.67 454,184.00
Months 61-72 8.98 50,550 37,848.67 454,184.00
*Although Tenant will have access to and use of the entire Building, Tenant
will not be obligated to pay Basic Rent on the 11,700 square feet portion of the
Building (the "Unfinished Space") for the first twelve months of the Lease Term.
B. Total Basic rent: Two Million Five Hundred Seventy-five
Thousand Seven Hundred Seventy-six Dollars
($2,575,776.00)
C. Advance Rent: Five Thousand Nine Hundred Sixty-four
Dollars and Thirteen Cents ($5,964.13)
representing a portion of the Monthly
Installment of Basic Rent for the first
month of the Term. Tenant and Landlord agree
that upon execution of the Lease Tenant's
initial deposit currently held in escrow in
the amount of $42,082.88 shall be applied
first to the Security Deposit and
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the balance to Advance Rent.
D. Security Deposit: Thirty-six Thousand One Hundred Eighteen
Dollars and Seventy-five Cents ($36,118.75)
E. Rent Commencement Date: Commencement Date (estimated January 1,
1996)
5. RENT ADJUSTMENTS:
A. Proportionate Share: one hundred percent (100%).
B. Insurance Base Year: Ends November 30, 1996.
C. Tax Base Year: Ends June 30, 1997.
D. Common Area Expenses: complete passthrough
E. Additional Services Expenses: complete passthrough
6. MISCELLANEOUS:
A. Broker: Xxxxxxx & Xxxxx Properties, Inc. and Xxxxx and
Associates, Inc./Oncor International
B. Exhibits: This Lease includes the following Exhibits:
Exhibit A - Premises
Exhibit B - Schematic Floor Plan
Construction Outline Specifications
Exhibit C-1 - Tenant's Work
Exhibit C-2 - Landlord's Work
Exhibit D - Common Area Expenses
Exhibit E - Additional Services Expenses
Exhibit F - Expansion
Exhibit G - Plat of Xxx X-0
Xxxxxxx X - Xxxxxxxx'x Xxxx Xxxxxx
Schedule 1 - Interval Cleaning Specifications
C. Riders:This Lease includes the following Riders:
Rider 1 - Renewal Option
Rider 2 - Exclusions
D. Tenant Improvements:
Subject to the other provisions of this Lease, Tenant
accepts the Premises together with the improvements to be
constructed by Landlord in the Premises. These
improvements are designated on the "Schematic Floor Plan"
approved by Tenant and attached hereto as Exhibit B, and
the "Construction Outline Specifications" approved by
Tenant and attached hereto as Exhibits C-1 and C-2. Tenant
shall pay Landlord the cost of all Tenant's Work,
identified on Exhibit C-1, and the cost of any mutually
agreed additional improvements (collectively, the "TI
Work"). Landlord shall not incur any costs for which
Tenant shall be
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liable hereunder until the Tenant has approved such
costs, which approval shall not be unreasonably
withheld, conditioned or delayed, or unless otherwise
agreed between the parties. Landlord shall contribute
Three Thousand Eight Hundred and Fifty Dollars
($3,850.00) toward said costs, as Landlord's
reimbursement to Tenant for preparation of preliminary
space planning by Tenant's architect. Payment for the
TI Work shall be made within ten (10) days after
receipt of an invoice from Landlord, which invoice
shall also include such supporting material as Tenant
may reasonably request. The invoices shall e submitted
as follows: (1) for 50% of the TI Work when 50% is
completed; (2) for 40% of the TI Work on the Completion
Date; and (3) the balance following substantial
completion of any punchlist items.
WITNESS/ATTEST: LANDLORD:
C & S Corridor-32 Limited Partnership
By: Xxxxxxx & Xxxxx Properties, Inc.,
Managing Agent
By /s/ X. X. XXXXXXX (SEAL)
----------------------------------- ---------------------------------
Name: X. X. Xxxxxxx
-------------------------------------
Title: President
------------------------------------
(Please print or type)
Date: 10-15-95 , 1995
------------------------
TENANT:
By: /s/ XXXXXX X. XXXXXXXX (SEAL)
----------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President & Chief
------------------------------------
(Please print or type)
Date: October 5 , 1995
------------------------
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CIENA CORPORATION LEASE AGREEMENT
GENERAL TERMS AND CONDITIONS
TABLE OF CONTENTS
1. LEASED PREMISES........................................................................1
2. TERM...................................................................................1
3. RENT AND RENTAL ADJUSTMENTS............................................................2
4. TELEPHONE, UTILITIES & SERVICES........................................................6
5. SECURITY DEPOSIT.......................................................................6
6. USE....................................................................................7
7. CONSTRUCTION OF TENANT IMPROVEMENTS....................................................7
8. COMPLIANCE WITH REGULATIONS...........................................................12
9. MAINTENANCE AND REPAIRS...............................................................13
10. ACCESS BY LANDLORD....................................................................14
11. SUBORDINATION.........................................................................15
12. ATTORNMENT............................................................................15
13. ESTOPPEL CERTIFICATE..................................................................15
14. ASSIGNMENT OR SUBLETTING..............................................................16
15. QUIET ENJOYMENT.......................................................................17
16. ALTERATIONS OR CHANGES................................................................17
17. RESTORATION...........................................................................18
18. CONDEMNATION..........................................................................20
19. INSURANCE.............................................................................20
20. TENANT'S DEFAULT......................................................................23
21. WAIVER OF REDEMPTION..................................................................26
22. ASSIGNMENT OF LANDLORD'S INTEREST.....................................................26
23. A. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS...................................26
B. TENANT'S RIGHT TO PERFORM LANDLORD'S COVENANTS...................................26
24. WAIVER OF BREACH......................................................................26
25. NOTICE................................................................................27
26. SEVERABILITY..........................................................................27
27. LIMITED PERSONAL LIABILITY............................................................27
28. ENVIRONMENTAL ASSURANCES..............................................................27
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29. COMMISSIONS...........................................................................30
30. ATTORNEY'S FEES.......................................................................30
31. TIME..................................................................................30
32. ZONING................................................................................30
33. LIMITED WAIVER OF JURY TRIAL..........................................................30
34. ARBITRATION...........................................................................31
35. MISCELLANEOUS.........................................................................31
36. TENANT'S AUTHORITY....................................................................33
37. LANDLORD'S AUTHORITY..................................................................33
38. LENDER'S APPROVAL.....................................................................33
39. EXPANSION.............................................................................34
Exhibit A - Premises
Exhibit B - Schematic Floor Plan
Construction Outline Specifications
Exhibit C-1 - Tenant's Work
Exhibit C-2 - Landlord's Work
Exhibit D - Common Area Maintenance Services
Exhibit E - Additional Services
Exhibit F - Expansion
Exhibit G - Plat of Xxx X-0
Xxxxxxx X - Xxxxxxxx'x Xxxx Xxxxxx
Schedule 1 - Interval Cleaning Specifications
Rider No. 1 - Renewal Option
Rider No. 2 - Exclusions
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GENERAL TERMS AND CONDITIONS
OF
CIENA CORPORATION LEASE AGREEMENT
THIS LEASE, made as of this 5th day of October, 1995, by and between
Landlord and Tenant.
WITNESSETH, that the parties agree as follows:
1. LEASED PREMISES. Landlord leases to Tenant, and Tenant rents from
Landlord, the Premises, as shown on Exhibit A, together with the rights of
ingress and egress over the driveways and sidewalks leading to and from the
Building.
2. TERM. The Lease Term shall commence on the "Commencement Date",
as defined below, and shall end at 11:59 p.m. on the last day of the Term,
unless otherwise terminated or extended in accordance with the terms hereof.
Each respective period of twelve (12) successive calendar months during the Term
or any renewals thereof commencing with the first calendar month of the Term
shall be referred to as a "lease year". The first lease year shall include the
portion, if any, of the month during which the Commencement Date occurs. See
Rider No. 1 - Renewal Option.
2.1 The Estimated Commencement Date and Estimated Expiration
Date are based on the anticipated time needed to construct any Tenant
improvements. In the event that Landlord shall be unable, by reason of
construction delays or otherwise, to deliver possession of the Premises on the
Estimated Commencement Date, then this Lease shall nevertheless continue in full
force and effect, and Tenant shall have the right, provided it gives prompt
notice thereof to Landlord, to rescind, cancel or terminate the same if
possession is not given within one hundred eighty (180) days after (a) execution
of this Lease, and (b) satisfaction of the conditions precedent to Landlord's
commencement of construction of Tenant Improvements set forth in Section 7
hereof. If this Lease is not so terminated, Tenant's liability for rent shall
commence on the date on which Landlord shall deliver possession to Tenant, which
date shall thereafter be deemed the "Commencement Date" for all purposes of this
Lease. Whether or not Landlord shall deliver possession of the Premises on the
Estimated Commencement Date or within said one hundred eighty-day period, Tenant
agrees that in no event shall Landlord be liable for damages, if any, sustained
by Tenant as a result of Landlord's failure to deliver possession.
2.2 On or after the Commencement Date upon Landlord's request,
Tenant and Landlord shall promptly amend this Lease to specify the dates as of
which the Term shall have begun and shall end.
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3. RENT AND RENTAL ADJUSTMENTS.
3.1 Basic Rent: Tenant shall pay Landlord the Total Basic Rent
for the initial term, without any deductions or set-offs, and without demand, in
the amounts set forth in the Cover Letter of this Lease.
(a) Tenant shall pay to Landlord, concurrently with its
execution hereof, the Advance Rent. Tenant shall pay the balance of the Total
Basic Rent in accordance with the Total Basic Rent Schedule, in advance,
commencing on the Rent Commencement Date and on the first day of each month
thereafter. If the Rent Commencement Date of this Lease is other than the first
day of the month, the Monthly Installment of Basic Rent for the portion of the
month in which the Rent Commencement Date occurs and the last month of the Term
shall be prorated.
3.2 ADDITIONAL RENT: Unless specifically stated otherwise in
this Lease, the term "Additional Rent" will include all payments or installments
due under this Lease (including attorneys' fees), other than the Basic Rent.
Tenant covenants to pay all Additional Rent within thirty (30) days after
Landlord has notified Tenant of the amount due or as provided in this Lease
Agreement. Tenant's obligation for Additional Rent and any unpaid Basic Rent
will remain in effect after the termination or expiration of this Lease.
Attorney's fees incurred by Landlord hereunder other than as a result of
Tenant's Default shall not exceed One Thousand Dollars ($1,000.0.0) per
occurrence.
3.3 All Basic Rent, and any other sums or Additional Rent,
accruing under this Lease and not paid within five (5) days after notice of
non-payment to Tenant shall bear interest at the rate per annum equal to the
prime rate of interest announced from time to time by Mercantile- Safe Deposit
and Trust Company plus two percent from the due date until paid. Additionally,
any Monthly Installment of Basic Rent or Additional Rent not paid within five
(5) days after notice of non-payment to Tenant shall be considered delinquent
and subject to a late payment charge equal to five percent (5%) of the amount
which is overdue and payable or Twenty-five Dollars ($25.00), whichever amount
is greater. This late payment charge shall be in addition to the interest
provided for above and shall be due and payable with the payment of the
arrearage. Notwithstanding the foregoing, no notice shall be required to be
given to Tenant if Landlord has given such notice to Tenant two (2) times in the
preceding twelve months.
3.4 DEFINITIONS.
"Real Estate Taxes" shall mean any present or future taxes, general and
special, including business park charges, which are levied or assessed against
the Real Property, consisting of, without limitation: (a) a tax, assessment,
imposition or charge, wholly or partially as a capital levy or otherwise, on the
rents payable hereunder; (b) a tax, assessment, (including but not
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limited to any municipal, State, or Federal levy), imposition or charge measured
by, or based in whole or in part upon, the Premises and imposed upon the
Landlord; or (c) a license fee measured by the Basic Rent payable under this
Lease. Any reasonable expenses incurred by Landlord in contesting any tax
alteration or increase shall also be included as an item of Real Estate Taxes
for the purposes of computing Additional Rent due to Landlord, which expenses,
however, shall not exceed fifty percent (50%) of the actual savings from such
contest. Real Estate Taxes shall not include (i) income, estate, gift,
succession, inheritance, transfer, mortgage, gains, unincorporated business,
commercial rent and franchise taxes imposed upon Landlord; (ii) any interest or
penalties incurred by Landlord by reason of a late payment of Real Estate Taxes
provided Tenant has timely performed its monetary obligations hereunder; (iii)
water, sewer, value and sales taxes, rents and/or other similar charges; and,
(iv) any item which is included as Common Area Expenses or Additional Services
Expenses.
"Proportionate Share" shall mean the share of Common Area Expenses, Real
Estate Taxes, utilities, or Insurance premiums that are reasonably attributable
to Tenant based upon the Tenant's use of and improvements to the Premises. The
Proportionate Share shall be the percentage specified in the Cover Letter of
this Lease. Notwithstanding the foregoing, Landlord shall be allowed to allocate
the reasonable costs of Common Area Expenses such as water charges, trash
removal and utility usage based e on actual use of such services by Tenant.
"Insurance" shall mean all insurance of whatsoever nature kept or caused
to be kept by Landlord in connection with its ownership of the Real Property and
the Project, equipment, fixtures and other improvements installed and/or owned
by Landlord and used in connection with the Building, and/or all alterations,
rebuildings, replacements and additions thereto, including, but not limited to,
insurance insuring the same against loss or damage by, or abatement of rental
income resulting from, fire, and other such hazards, casualties and
contingencies (including, but not limited to, liability and indemnity
insurance). If Landlord's Insurance covers premises other than the Building, the
cost thereof shall be reasonably allocated between the Building and such other
premises.
"Common Area Expenses" shall mean all expenses incurred by Landlord in
connection with managing the Real Property and Landlord's maintenance and repair
of the common areas of the Real Property, including but not limited to repairs
for normal wear and tear of the roof and its various components, such as
skylights, parapets, drains, gutters and caulking; monitoring, repairing and
payment of all common area public utilities, including water and sewer and other
utility infrastructures, including any equipment owned by Landlord and used in
connection with such utilities; monitoring and repairing the sprinkler system;
maintenance and repair of all exterior landscaping and grounds, including
parking areas; snow removal; and exterior Building repairs and maintenance.
Common Area Expenses shall also include (i) all those expenses of the Project
attributable on a reasonable basis to the Real Property, including, but not
limited to, any expenses incurred by Landlord for employees and contractors of
Landlord or its affiliate which
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employee expenses shall be pro-rated to the extent such employees also serve
other projects and (ii) expenses incurred in providing those services shown on
Exhibit D. See Rider No. 2 - Exclusions.
"Additional Services Expenses" shall mean all expenses incurred by
Landlord in connection with providing the Premises with those services shown on
Exhibit E and trash removal (including recycling), all reasonable and necessary
repair and maintenance to the interior portions of the Building, periodic
interval cleaning in accordance with Schedule I attached hereto and incorporated
by reference herein and all reasonable and necessary repair and maintenance of
the heating, ventilation and air-conditioning systems servicing the Building,
including the cost of maintaining a full service contract thereon, together with
costs of any other necessary repairs or maintenance required to keep the
Premises and appurtenances thereto in good order and condition.
3.5 RENT ADJUSTMENTS:
(a) Rent Adjustment - Taxes: if the sum of the Real Estate Taxes
for any future fiscal tax year exceeds the Real Estate Taxes for the Tax Base
Year, Tenant shall pay to Landlord, as Additional Rent for each whole or partial
lease year, an amount equal to its Proportionate Share of the increase. As of
the date of this Lease, the tax year is a fiscal year commencing July 1.
Landlord shall give Tenant prompt notice of any proposed increase in Taxes and
Tenant shall be entitled, at its own expense, and through its own counsel, to
participate with Landlord or independently to contest or oppose any such
increase. Landlord shall cooperate, but without pecuniary liability, with Tenant
as may be reasonably required in any such contest. All refunds, including
interest, if any, of Taxes attributable to the Lease Term and which have been
paid by Tenant shall belong to Tenant.
(b) Rent Adjustment - Insurance: If Landlord's premiums for
Insurance for any future year exceed the premium for Insurance for the Insurance
Base Year, Tenant shall pay to Landlord, as Additional Rent, an amount equal to
Tenant's Proportionate Share of the increase, for each whole or partial lease
year. Landlord shall provide reasonable supporting materials together with the
bills provided for in this clause (b) and in clause (a) above.
(c) Rent Adjustment - Additional Services Expenses and Common
Area Expenses: Commencing on the Commencement Date, Tenant shall pay to Landlord
as Additional Rent, simultaneously with the payments of Monthly Installments of
Basic Rent (or if no Monthly Installment of Basic Rent is due for a particular
month, then on the first day of such month), the following amounts:
1. from the Commencement Date until the earlier to occur of (a) the
completion of improvements to the portion of the Unfinished Space which is
crosshatched on Exhibit B (the "Shell Space"), or (b) the first day of the
second lease year, $1,852.50 per month (calculated on
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the basis of $.52 per rentable square foot of the Premises [other than the Shell
Space]) and, thereafter, until further adjusted as set forth below, $2,190.50
per month as one-twelfth of Tenant's estimated Proportionate Share of the
Additional Services Expenses; and
2. commencing on the Commencement Date and continuing throughout the
Lease Term until further adjusted as set forth below, the sum of $1,853.50 per
month (calculated on the basis of $.44 per square foot of the Premises) as
one-twelfth of Tenant's estimated Proportionate Share of the Common Area
Expenses. Prior to the Commencement Date, Landlord shall deliver to Tenant a
statement of the Common Area Expenses for the period of January 1, 1994 through
December 31, 1994.
At any time during each year, Landlord may revise its estimate of
Tenant's Estimated Monthly Proportionate Share of the Common Area Expenses and
Additional Services Expenses, and adjust Tenant's monthly installments payable
thereafter to reflect such revised estimates. Landlord will give Tenant written
notice of any such adjustment, and Tenant will be required to pay such adjusted
monthly installments commencing on the first day of the month following Tenant's
receipt of such notice.
Landlord will deliver to Tenant, within one hundred twenty (120)
days (or such additional time thereafter as is reasonable under the
circumstances) after the end of each applicable period, a statement (a
"Statement") of the actual Real Estate Taxes (along with a copy of all bills
therefore Insurance, Common Area Expenses and Additional Services Expenses
(collectively, the "Expenses") for such period, showing Tenant's Proportionate
Share thereof. Tenant will pay Landlord or Landlord will credit Tenant's account
or pay Tenant if such adjustment is at the end of the Lease Term, within thirty
(30) days after the receipt of such statement, such amounts as may be necessary
to adjust Tenant's payments of Tenant's Monthly Proportionate Share of the
Estimated Common Area Expenses and Additional Services Expenses for such
preceding period so that such payments will equal Tenant's Proportionate Share
of the actual expenses for such period.
Upon reasonable notice, Landlord shall make available for
Tenant's inspection and copying at Landlord's office, during normal business
hours, Landlord's records relating to the Expenses for the period reflected in
such Statement, and all information examined shall be kept by Tenant in the
strictest confidence; provided, however, that unless Tenant shall have given
Landlord written notice of its exception to any such Statement within one
hundred twenty (120) days after delivery thereof, the same shall be conclusive
and binding on Tenant; provided further that in the event that Tenant shall give
to Landlord written notice of its exception to such Statement within such one
hundred twenty (120) day period, Tenant shall nevertheless be obligated to pay
the Additional Rent, but shall have the right, following such payment, to
contest the amount set forth in such Statement before an arbitrator (pursuant to
Section 34 hereof) without being in breach or default of this Lease. Failure of
Landlord to provide a Statement
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called for hereunder within the time prescribed shall not relieve Tenant from
its obligations hereunder. If such inspection or arbitration shows there to have
been an underpayment or an overpayment, the parties shall, within thirty (30)
days after such determination, either remit to Landlord, or credit to Tenant's
account, as the case may be, such amount.
4. TELEPHONE, UTILITIES & SERVICES:
4.1 Landlord represents that the Premises are, or will be,
separately metered for water, sewer, gas and electric. Tenant shall pay on a
timely basis to the appropriate supplier (other than for water and sewer, the
cost of which shall be paid to Landlord as part of the Common Area Expenses and
shall be based on usage as shown by the meter), all charges for telephone,
electricity, gas, and other such services or utilities, used, rendered and/or
supplied upon or in connection with the Premises.
4.2 As long as Tenant is not in default under any of the
covenants of this Lease, Landlord shall. if and insofar as existing facilities
permit, and at Tenant's costs, as set forth above:
(a) furnish electricity, heat and air conditioning to the
Premises; and
(b) furnish Tenant with water (hot and cold) at those
points of supply provided for general use of tenancv.
4.3 Landlord reserves the right, upon reasonable prior notice to
Tenant (except in the event of an emergency) at times other than during normal
business hours whenever practicable, to temporarily stop service of the heating,
air conditioning, plumbing and electric systems, when necessary, by reason of
accident, or emergency, or for repairs, alterations, replacement or
improvements, which in the judgment of Landlord are desirable or necessary to be
made, until said repairs, alterations, replacements or improvements shall have
been completed. Landlord shall have no responsibility or liability for failure
to supply heat, air conditioning, plumbing, cleaning and electric service during
said period or when prevented from so doing by energy shortages, laws, orders or
regulations of any federal, state, county or municipal authority or by strikes,
accidents or by other cause whatsoever beyond Landlord's control. In the event
of any cessation of any service herein provided due to any such cause, such
cessation shall not be construed to be a constructive eviction of Tenant and
shall not excuse Tenant's failing to pay Basic Rent or any other of Tenant's
obligations under this Lease. To the extent within Landlord's reasonable control
Landlord shall not permanently discontinue service unless required to do so by
law or emergency until Tenant is able to obtain alternate service.
5. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon the
execution of this Lease, the Security Deposit for Tenant's full and faithful
performance of the terms of this
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Lease. During the Term, for whatever cause, Landlord may use or apply, or retain
the whole or any part of the Security Deposit for any obligation of Tenant
arising under the terms of this Lease. Any unused portion of the Security
Deposit plus any interest actually accrued thereon shall be refunded to Tenant
after termination of the tenancy and delivery of possession of the Premises to
Landlord. In the event that any part of the Security Deposit is ever utilized by
Landlord, Tenant shall deposit with Landlord, a sum equal to the utilized amount
within ten (10) days after Landlord's demand therefor.
The Security Deposit may not be used by Tenant as rent, or as a
deduction from the last month's rent. Tenant may not indemnify itself with
respect to any violation or default by resort to the Security Deposit.
In the event of a bona fide sale of the Building, Landlord shall
transfer the Security Deposit to the purchaser of the Building for the benefit
of Tenant, at which time Landlord shall be released by Tenant from all liability
for the return of the Security Deposit. Tenant agrees to look solely to the new
landlord or any subsequent successor landlord for the return of the Security
Deposit.
Any reentry of the Premises by Landlord prior to the expiration
of the Term of the Lease, where occasioned by default on the part of the Tenant,
shall entitle the Landlord to retain the Security Deposit as an additional
remedy for such default.
6. USE. The Premises shall be used only for the purposes set forth
in the Cover Letter of this Lease, which uses are deemed approved by the
Landlord. Any misuse of the Building or Project by Tenant or its agents shall be
considered a material violation of this Lease and Landlord shall have all rights
and remedies available to it under this Lease in regard to such violation.
Landlord represents that upon Landlord's notice to Tenant that the Premises are
ready for occupancy pursuant to Section 7.5 below the Premises may be lawfully
occupied by Tenant for the use permitted herein.
6.1 Parking. Tenant shall have, for Tenant's exclusive use, two
hundred parking spaces on the Real Property as shown on Exhibit A. Tenant shall
not permit the parking of Tenant or its invitees vehicles so as to interfere
unreasonably with the use of any driveway, corridor, footwalk, parking lot or
other common area used by other tenants of the Project. Landlord reserves the
right to tow, at Tenant s expense, any vehicle violating the parking provisions
of this Article.
7. CONSTRUCTION OF TENANT IMPROVEMENTS. Landlord shall construct
the initial Tenant improvements prior to Tenant's occupancy, and such
construction shall commence following Tenant's approval of the final Schematic
Floor Plan and its incorporation into this Lease as Exhibit B and the
Construction Outline Specifications and their incorporation
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into this Lease as Exhibits C-l and C-2 ("Tenant's Approval"). Once commenced,
construction shall be prosecuted with due diligence until completion. Tenant
shall direct all communication concerning the Schematic Floor Plan, the
Construction Outline Specifications or the actual construction solely to
Landlord's Representative.
7.1 The Schematic Floor Plan and Construction Outline
Specifications may be modified by the parties provided they mutually agree to
(a) the modifications to be made; (b) the manner in which any additional cost
shall be paid or reflected in the Total Basic Rent; and (c) modifications of the
schedule for the construction of Tenant improvements and of the Estimated
Commencement Date. To the extent that such modifications result in increased
expenses, such expenses will be paid by Tenant at the time of such modification,
and decreases in expenses resulting from such modifications shall be credited to
Tenant.
7.2 All improvements now or hereafter constructed, except movable
furniture and trade fixtures and those improvements described on Exhibit C-1
(the "Initial Tenant Improvements") put in at the expense of Tenant, shall be
the property of Landlord and shall remain with the Premises at the termination
of this Lease without molestation or injury; provided, however, that Landlord
may elect, at the time it approves the plans therefor, to require Tenant to
remove all or any part of said Tenant improvements (other than the Initial
Tenant Improvements except as hereinafter provided) at the expiration of this
Lease, in which event such removal shall be done at Tenant's sole cost and
expense. Tenant shall, at its sole cost and expense, repair any damage to the
Premises and/or the Building caused by the removal of its personalty. The
Initial Tenant Improvements shall be deemed to be owned during the Term by
Tenant but shall not be removed or altered by Tenant without Landlord's prior
approval, to the extent required under this Lease, and shall remain with the
Premises at the termination of this Lease. Notwithstanding the foregoing, Tenant
shall remove all Initial Tenant Improvements from the area crosshatched on
Exhibit B and shall restore such area to its condition prior to such removal.
7.3 Provided this Lease and all Exhibits are fully executed on or
before noon on October 1, 1995, Tenant shall have access to the Premises
beginning on or about November 6, 1995 for cabling and computer installation;
provided that (i) Tenant shall give advance verbal notice to Landlord of at
least one working day but not more than ten days of its intention to seek such
access; (ii) neither Tenant nor Tenant's employees, contractors, agents, or
representatives shall interfere with Landlord's construction of the Tenant
improvements (and if such interference occurs and the Completion Date is delayed
as a result, the Completion Date shall be deemed to have occurred one day
earlier than it actually occurs for each day the construction of the Tenant
improvements is delayed due to such interference); (iii) all cabling and
installation of fixtures shall be approved in advance by Landlord and shall be
done under the general supervision of Landlord; and (iv) all terms of this Lease
shall be deemed to be in effect as of the first day hereunder except for
Sections 3.1, 3.5 and 4.1. Tenant agrees to indemnify and hold harmless
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Landlord for any damage or personal injury which may occur as a result of Tenant
s entry into the Premises prior to the Commencement Date. Tenant shall deliver
to Landlord evidence of the insurance required to be maintained by Tenant
pursuant to Section 19 of this Lease prior to Tenant's entry into the Premises.
7.4 Upon substantial completion of the Tenant improvements such
that the Premises are in a condition suitable to permit installation of Tenant's
manufacturing equipment, Landlord shall notify Tenant that the Premises are
ready for occupancy. Landlord shall then arrange a joint inspection of the
Premises during which Landlord and Tenant shall develop a mutually agreeable
list of any items to be completed (the "Punchlist"). Agreement to and completion
of those items on the Punchlist which materially interfere with Tenant's use or
occupancy of the Premises, if any, shall establish the "Completion Date" which
is estimated to be on December 4, 1995. If the Completion Date occurs later than
December 4, 1995, other than as a result of Tenant's fault, the Commencement
Date shall be deferred one (1) day for every two (2) days between December 4,
1995 and the actual Completion Date. The occurrence of the Completion Date, with
the exception of those remaining minor items contained in the Punchlist,
conclusively shall establish that as of the Commencement Date the Premises (a)
are in good and satisfactory condition, subject to Landlord's Warranty set forth
in Exhibit C-2; (b) have been accepted by the Tenant; (c) have been completed in
accordance with the Schematic Floor Plan and Construction Outline
Specifications; and (d) in such event, shall establish the Commencement Date of
this Lease. If any remaining minor Punchlist item is not completed by Landlord
within a reasonable period of time after notice thereof from Tenant, Tenant may
complete same and offset any cost incurred as a result thereof against Tenant's
remaining construction payment obligations to Landlord.
7.5 Leasehold Mortgages. Provided the terms of any leasehold
mortgage are acceptable to Landlord's lenders (the "Superior Lienholders"),
Tenant shall have the right to mortgage its interest in this Lease, provided
that no holder of any mortgage of Tenant's interest in this Lease, nor anyone
claiming by, through or under such mortgagee, shall, by virtue thereof, except
as specifically provided in this Article, acquire any greater rights under this
Lease than Tenant has.
The Tenant or the leasehold mortgagee shall provide to Landlord and the
Superior Lienholders a final draft of any such mortgage for review and approval
by such Superior Lienholders prior to the execution and delivery thereof.
If Tenant shall mortgage its interest under this Lease, then, at the
option of Tenant, as long as any leasehold mortgage shall remain unsatisfied of
record, notwithstanding any other provision contained in this Lease:
(a) There shall be no cancellation, surrender, acceptance
of surrender or modification of this Lease without the prior written consent of
such leasehold mortgagee;
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(b) Provided Tenant has given Landlord written notice of
the necessary addresses, Landlord shall, upon serving upon Tenant any notice of
default or termination pursuant to the provisions of or with respect to this
Lease, at the same time serve a copy of such notice upon the holder of such
leasehold mortgage, and no such notice to Tenant shall be deemed to have been
duly given unless and until a copy thereof has been so served. Such leasehold
mortgagee shall, upon being given a copy of a notice of default, have any and
all rights of Tenant with respect to the curing of such default, including, but
not limited to, the same period, after service of such notice upon it, for
remedying the default or causing the same to be remedied as is given Tenant
after service of such notice upon it;
(c) Such leasehold mortgagee, in case Tenant shall be in
default hereunder, shall have the right, within the aforesaid period and
otherwise as herein provided, to remedy such default, or cause the same to be
remedied on Tenant's behalf, and Landlord shall accept such performance by, or
at the instigation of, such leasehold mortgagee as if the same had been
performed by Tenant;
(d) To the extent the time by which such leasehold
mortgagee may cure any default by Tenant reasonably requires that said mortgagee
be in possession of the Premises to do so, such cure period shall be deemed
extended to include the period of time required by said mortgagee to obtain such
possession with due diligence, provided, however, that during such period all
other obligations of Tenant under the Lease, including payment of Base Rent and
Additional Rent, are being duly and timely performed;
(e) Anything herein contained notwithstanding, if an event
or events of default shall occur which shall entitle Landlord to terminate this
Lease and if, before the expiration of fifteen (15) days after the date of
service of notice of termination, such leasehold mortgagee shall have paid to
Landlord all Base Rent and other payments herein provided for, if any, then in
default, and shall have complied or shall be engaged in the work of complying
with all the other requirements of this Lease, if any, then in default, then, in
such event, Landlord shall not be entitled to terminate this Lease, and any
notice of termination theretofore given shall be null and void and of no force
or effect, provided, however, that such loss of entitlement shall in no way
affect, diminish or impair any right of Landlord under this Lease to terminate
this Lease or to enforce any other remedy upon the nonpayment of any such Base
Rent and Additional Rent thereafter payable by Tenant or upon any other
subsequent default in the performance of any of the obligations of Tenant
hereunder:
(f) Landlord agrees that such leasehold mortgagee may be
named as an insured, as its interest may appear, in any and all insurance
policies required to be carried by the Tenant hereunder or by Landlord (if
Tenant is required to be named as an insured on such policies);
(g) If an action or proceeding shall be brought to
foreclose the leasehold
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mortgage, due notice of the commencement thereof will be given to the Landlord
and to all Superior Lienholders, and true copies of the summons and complaint
and true copies of all interlocutory and final judgments entered in such action
or proceeding will be served upon Landlord and such Superior Lienholders:
(h) No leasehold mortgagee shall become liable under the
provisions of this Lease unless and until such time as it becomes, and then only
for as long as it remains, the owner of Tenant's leasehold estate and only to
the extent, if any, that Tenant would be liable hereunder;
(i) in the case of the termination of this Lease by reason
of the happening of any default, Landlord shall give notice thereof to each
leasehold mortgagee who shall become entitled to notice and who has provided
Landlord with its address for notices, and shall specify in such notice the
amount of Base Rent and other sums and charges due to Landlord as of the date of
termination. Landlord shall, on written request of such leasehold mortgagee made
at any time within thirty (30) days after the giving of such notice by Landlord,
enter into a new lease of the Premises with such leasehold mortgagee, or its
designee, within twenty (20) days after receipt of such request, which new lease
shall be effective as of the date of such termination of this Lease for the
remainder of the term of this Lease, upon the same terms, covenants, conditions
and agreements as are herein contained; provided that such leasehold mortgagee
shall (i) contemporaneously with the delivery of such request pay to Landlord
all the installments of Base Rent and all other sums and charges due hereunder
as specified in the aforesaid notice from Landlord; (ii) pay to Landlord at the
time of the execution and delivery of said new lease any and all sums for Base
Rent and other sums and charges which would have been due hereunder from the
date of termination of this Lease (had this Lease not been terminated) to and
including the date of the execution and delivery of said new lease, together
with all expenses, including reasonable attorneys' fees, incurred by Landlord in
connection with the termination of this Lease and with the execution and
delivery of such new lease, decreased by the excess, if any, of all sums
received by Landlord from any subtenants in occupancy of any part or parts of
the Premises up to the date of commencement of such new lease over expenses
incurred by Landlord in operating the Premises or increased by the excess, if
any, of expenses incurred by Landlord in operating the Premises over all sums
received by Landlord from any subtenants in occupancy of the Premises up to the
date of commencement of such new lease, as the case may be; and (iii) on or
prior to the execution and delivery of said new lease, agree in writing that,
promptly following the delivery of such new lease, such leasehold mortgagee or
its designee will perform or cause to be performed all of the other covenants
and agreements herein contained on Tenant's part to be performed to the extent
that Tenant shall have failed to perform the same to the date of delivery of
such new lease. Nothing herein contained shall be deemed to impose any
obligation on the part of Landlord to deliver physical possession of the
Premises to such leasehold mortgagee unless Landlord at the time of the
execution and delivery of such new lease shall have obtained physical possession
thereof; and
(j) In the event that there shall at any time be more than
one leasehold
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mortgagee entitled to exercise any of the foregoing rights, the leasehold
mortgagee holding the leasehold mortgage most junior in lien which shall have
fully paid and discharged all such leasehold mortgages which were prior to it
shall have priority over the other leasehold mortgagees with regard to such
rights or, if no leasehold mortgagee has been so discharged, the leasehold
mortgagee holding the leasehold mortgage most senior in lien shall have such
priority.
(k) Notwithstanding anything to the contrary contained in
this Lease, Landlord shall have no right to consent to the assignment of this
Lease to a purchaser in foreclosure of any previously approved leasehold
mortgage given by Tenant, or to any leasehold mortgagee or its designee in lieu
of such foreclosure
(l) The provisions of this Section 7.5 shall also apply to
any collateral assignment by Tenant of its interest under this Lease.
(m) if required by any leasehold mortgagee, and
notwithstanding anything to the contrary contained herein, Tenant shall have the
right to record a memorandum or other evidence of this Lease provided that it
pays all taxes payable in connection with such recordation.
(n) Nothing in this Lease shall be deemed to prohibit
the financing by Tenant of, and the granting of a lien on, any of its personal
property or any of the Initial Tenant Improvements, so long as. in the case of
the Initial Tenant Improvements, the lender is not given any rights that are
inconsistent with the provisions of the penultimate sentence of Section 7.2 and
the provisions of this Section 7.5 are fulfilled, and, as to any personal
property, the lender is not given any rights that are inconsistent with the
provisions of Section 14. Subject to the above provisions, Landlord agrees to
reasonably cooperate with Tenant, without any pecuniary obligation therefor, in
Tenant's efforts to procure financing for the Initial Tenant Improvements and
agrees to execute and deliver to Tenant the Waiver, hereinafter defined in
Section 14, incorporating such modifications and additions to the form of
Waiver as such lender shall request, provided the same are not materially
adverse to Landlord.
8. COMPLIANCE WITH REGULATIONS:
8.1 Compliance with Governmental Regulations and Private
Covenants: Tenant shall, at its sole expense, continually comply with all
Federal, State, and local laws, codes, ordinances, administrative and court
orders and directives, rules, and regulations and those private covenants
recorded in Liber 733 at folio 726 et am. (the "CC and R's") or any other
private covenants of which Tenant receives actual knowledge applicable to
Tenant's use and occupancy of the Premises, as are now or may (except in the
case of private covenants unless Tenant's consent has been obtained thereto,
which consent shall not be unreasonably withheld with respect to private
covenants not materially adverse to Tenant's rights hereunder) be subsequently
in effect during the Term. Landlord represents that is has not, during its
ownership of the Real Property, entered into any private covenants other than
the CC and R's. Landlord represents that as of the
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Completion Date, to the best of Landlord's actual knowledge, the Premises will
comply with the CC and R's and all applicable laws, including the Americans with
Disabilities Act and laws relating to asbestos and asbestos containing
materials. Tenant shall be entitled, at its own expense, and through its own
counsel, to independently contest, appeal, oppose or otherwise defer compliance
with any law imposed after the Completion Date, provided, however, that as a
result of Tenant's non-compliance Landlord is not subjected to criminal or civil
prosecution and the Project is not materially adversely affected thereby.
Landlord shall cooperate, without pecuniary liability, with Tenant as may be
reasonably required in any such contest. Landlord shall be responsible for
undertaking improvements to the Premises necessary to comply with laws (the
costs of which shall herein be referred to as the "Government Compliance
Costs"). if such Government Compliance Costs are not capital in nature. as
reasonably determined under sound accounting principles, they shall be paid for
by Tenant unless the noncompliance exists on the date hereof. If such Government
Compliance Costs are capital in nature, as reasonably determined under sound
accounting principles (the "Capital Government Compliance Costs"), such Capital
Government Compliance Costs shall be amortized over such period of time as may
be reasonable under the circumstances of such particular improvements and the
portion of such amortized costs, together with the interest on the unamortized
balance at a fluctuating annual rate that is at all times equal to l 't2% over
the prime interest rate as determined from time to time by Citibank, N.A.,
falling within the Lease Term shall be paid by Tenant as a part of Common Area
Expenses unless the noncompliance exists on the date hereof. Notwithstanding
anything set forth above, any Government Compliance Costs incurred in removing
Hazardous Substances from the Premises shall be deemed a Capital Government
Compliance Cost which shall be amortized as aforesaid unless the noncompliance
exists on the date hereof.
8.2 Compliance with Rules and Regulations: Tenant shall also
comply with all rules and regulations announced by Landlord from time to time
applicable to the Project provided same do not materially adversely affect
Tenant's use of the Premises as permitted hereby and are enforced uniformly
among all tenants of the Project.
9. MAINTENANCE AND REPAIRS.
9.1 Tenant's Obligations
(a) Tenant shall, at its sole expense, maintain its personal
property in the Premises, fixtures and appurtenances including, without
limitation, the repair and replacement of appliances and equipment installed
specifically for Tenant such as refrigerators, disposals, or trash compactors.
Tenant shall take good care of the Premises, fixtures and appurtenances, and
shall suffer no waste or injured to the Premises.
(b) In order that the Premises may be kept in a good state of
preservation and cleanliness, Tenant shall, during the Term of this Lease,
contract with a contractor approved by
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Landlord which approval shall not be unreasonably withheld or delayed to take
care of and clean the interior of the Premises on a daily basis. Landlord shall
not be responsible to Tenant for loss of property or for any damage done to the
furniture or other property of Tenant by the Landlord or any of its employees or
agents or any other persons or firms except where proof of Landlord's
responsibility for such damage or loss of property is established.
(c) Landlord shall, at Tenant's expense, but subject to
Landlord's Warranty as set forth in Exhibit C-2, make all repairs to the
Premises, fixtures and appurtenances necessitated by the fault of the Tenant,
its agents, employees or invitees. At or before the end of the Lease Term, as
reasonably determined by Landlord, any and all damage to the Premises or the
Building, caused by the installation or removal of furniture or other property,
shall be repaired by Landlord at Tenant's expense. The cost of any repairs to be
made by Landlord under this Lease resulting from the fault or negligence of
Tenant shall include a reasonable fee for Landlord's supervision of such
repairs.
(d) Upon the termination of the Lease, Tenant will leave the
Premises broom swept and clean, and at least in the same good condition
(reasonable wear and tear and insured casualty damage excepted) as when the
Lease Term began. Tenant will remove all of its property and possessions from
the Premises except to the extent provided by Section 7 above, within ninety
(90) days after the termination of this Lease.
9.2 Landlord's Obligations.
(a) Landlord will provide, in a high quality manner consistent
with the use of the Premises as a corporate headquarters, at Tenant's cost, the
Additional Services and those services described in the definition of Common
Area Expenses.
(b) Landlord may, but will not be obligated to, make such
repairs, alterations, or improvements as it or its authorized representatives
deem necessary for the safety or preservation of the Building or for any other
reasonable purpose upon reasonable prior notice to Tenant (except in the case of
an emergency) and in such a manner as to not unreasonably interfere with
Tenant's business. Basic Rent will not xxxxx while Landlord is exercising any of
its rights under this Article.
(c) Landlord agrees, at Tenant's costs, to make all necessary
repairs to keep the Premises and appurtenances thereto in good order and
condition within a reasonable time after it shall receive written notice from
the Tenant of the need of such repairs.
9.3 Landlord's Failure to Repair. Anything contained in this
Lease to the contrary notwithstanding, Landlord shall not be obligated to make
any repairs to the interior of the Building, nor shall it be liable to Tenant or
any other person, for any claim or injury arising
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out of Landlord's failure to make any such repairs under the terms of this
Lease, unless Tenant gives Landlord prompt written notice of the condition
requiring repair upon discovery and Landlord has not made a timely effort to
effect the needed repair. Upon discovery, Tenant shall also give Landlord prompt
written notice of any condition requiring repair to the exterior of the Building
and common areas of the Premises.
10. ACCESS BY LANDLORD. Landlord and its agents shall have the right at
all reasonable times, upon reasonable prior notice to Tenant and within the
company of Tenant's representative (except in the event of an emergency), during
the Term to enter the Premises for the purpose of inspecting the Building,
performing maintenance and repairs or for any other reasonable purpose. Whenever
practicable, Landlord shall use reasonable efforts to avoid interfering with
Tenant's business and should perform all work after business hours or during
business hours reasonably designated by Tenant. Except as reasonably necessary,
Landlord shall not store materials or equipment in the Premises. Landlord may
show both the interior and exterior of the Premises to prospective tenants or
purchasers at any time during the Term and place "For Rent" signs on the
Premises during the last four (4) months of the Term
11. SUBORDINATION. This Lease shall be subject to and subordinate at all
times to the lien of any mortgage, deed of trust, or financing statement now or
hereafter made on the Premises, and to all advances made or hereafter to be
made. This subordination provision shall be self-operative and no further
instrument of subordination shall be required. Notwithstanding the foregoing,
this Lease shall not be subordinate to any future mortgage or deed of trust
unless the mortgagees or beneficiary thereunder deliver to Tenant a
non-disturbance agreement reasonably acceptable to the Tenant. Prior to the
Commencement Date, Landlord agrees to furnish to Tenant a list identifying any
mortgages or ground leases affecting the Premises. Landlord represents that, as
of the date hereof, to the best of its actual knowledge, Landlord is not in
default, and no condition has occurred which would constitute a default, under
any mortgage affecting the Premises.
12. ATTORNMENT. Tenant shall, upon the termination of Landlord's
interest in the Premises and upon request, attorn to the person or entity that
holds title to the reversion of the Premises (the "Successor") and to all
subsequent Successors. Tenant also will pay to the Successor all rents and other
sums required to be paid by Tenants and perform all of the other covenants,
agreements and terms required of Tenant under this Lease.
13. ESTOPPEL CERTIFICATE. Tenant shall, during the Term of this Lease,
execute, acknowledge and deliver to Landlord, or to any entity Landlord shall
designate, within ten (10) business days after written notice by Landlord
pursuant to Section 25 hereof, a certified written estoppel certificate in the
form reasonably required by Landlord's lender or any prospective lender or
purchaser. Any statement delivered pursuant to this Article 12 may be relied
upon by any mortgagee or prospective mortgagee of the Building or of Landlord's
interest, or any
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prospective assignee of any mortgagee. If Tenant fails to deliver the statement
to Landlord within ten (10) business days after Landlord's notice, Tenant shall
be deemed to have acknowledged that this Lease is in full force and effect,
without modification except as may be represented by Landlord and that there are
no uncured defaults in Landlord's performance. Furthermore, in the event
Tenant's failure to deliver the statement to Landlord within the ten (10)
business day period results in (i) Landlord being placed in default by its
lender under its financing for the Building or (ii) Landlord's inability to
close any loan which it is negotiating, Tenant may, at Landlord's sole
discretion, be deemed in default of this Lease and Landlord shall have all
rights and remedies available to it under this Lease in regard to a default.
If at any time during the Lease Term, Tenant's lender or a permitted
assignee requires Tenant to provide it an estoppel certificate from Landlord,
then within ten (10) business days after written notice from Tenant's lender or
such assignee for same pursuant to Section 25 hereof, Landlord shall provide a
certified written estoppel certificate addressed to said lender or such
assignee, certifying as to whether to Landlord's knowledge: (i) this Lease is in
full force and effect; and (ii) Tenant is not in breach of this Lease (and if
Tenant is in breach, the nature of the breach). The estoppel certificate may not
be relied upon by anyone other than Tenant's lender or any permitted assignee.
Notwithstanding the foregoing provisions, Landlord shall not be required to
provide an estoppel certificate if Landlord has already provided one to the
party requesting the same in the twenty-four (24) months preceding the request
for an estoppel certificate.
14. ASSIGNMENT OR SUBLETTING. Tenant is the only party that may use or
occupy the Premises. No assignment of this Lease or subletting of all or any
part of the Premises is permitted without the prior written consent of Landlord.
The granting of such consent will not be unreasonably withheld or delayed with
respect to the type of Assignment described in clauses (I) and (2) in the
following subparagraph so long as the proposed assignee is no less creditworthy
and as experienced in operating the business which will be operated in the
Premises as is Tenant with respect to its business as of the date hereof.
The foregoing restriction will include, but not be limited to,
the following (all of which will be deemed to be an "Assignment"): (1) any
assignment of this Lease or a subletting of the Premises; (2) any permission to
a third party to use all or part of the Premises; (3) any mortgage or other
encumbrance of this Lease or of the Premises except as specifically permitted
pursuant to Section 7.5 above or in this Section; (4) the appointment of a
receiver or trustee of any of the Tenant's property unless said appointment is
vacated within ninety (90) days; and (5) any assignment or sale in bankruptcy or
insolvency. An Assignment shall not include and no consent of Landlord shall be
required to the sale of stock or other equity interest in Tenant.
Although an Assignment includes an assignment of the Lease to any
successor entity as a result of merger, consolidation or sale of all, or
substantially all, of the assets of Tenant (a "Transfer") or to any subsidiary,
parent or affiliated corporation or other entity of
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Tenant (a "Related Company") no consent of Landlord thereto shall be required
provided such Related Company or the entity resulting from the Transfer (the
"Successor Tenant") shall have a creditworthiness comparable to that of Tenant
as of the date of the Transfer. All other provisions of this Section 14 shall,
however, apply to such Transfer or Related Party transaction. Notwithstanding
the foregoing, no creditworthiness test will be required if, (a) following such
Related Company transaction, Tenant remains fully liable on the Lease; or (b)
the Successor Tenant or the Related Company provides Landlord with additional
security in form and substance reasonably acceptable to Landlord (not in any
event to exceed, in the aggregate, an amount equal to nine (9) months of Basic
Rent).
Even if Landlord consents to an Assignment, Tenant will remain
primarily liable under this Lease. Also, Tenant will bear all reasonable legal
costs actually incurred by Landlord in connection with Landlord's review of
documents concerning an Assignment, whether or not Landlord consents to it.
Landlord's consent to a specific Assignment does not waive Landlord's right to
withhold consent to any future or additional Assignment. Tenant will give
Landlord notice of its intention to make an t Assignment at least fifteen (15)
days prior to such Assignment, which notice will contain such details as
Landlord may reasonably request (the "Details"). If Tenant intends to Assign
this Lease, Landlord may terminate this Lease by giving written notice to Tenant
within thirty (30) days after Landlord has received written notice from Tenant
of an intended Assignment and Tenant has provided all requested Details.
If the amount of rent and other sums received by Tenant in the
nature of rent under any Assignment other than to a Related Company is more than
the Rent due from Tenant under this Lease, then, after reimbursing Tenant for
amounts paid toward Tenant Improvements, and other Tenant improvements to the
Premises, reasonable brokerage and legal fees, transfer taxes, if any, or other
tenant concessions or incentives (which reimbursement will be amortized over the
Lease Term), Tenant will pay the remaining excess to Landlord on a monthly basis
and promptly upon Tenant's receipt of such excess amounts. The foregoing shall
not apply to transactions which do not require Landlord's consent under the
foregoing provision of this Article 14.
If, without Landlord's consent, this Lease is Assigned, or if the
Premises are occupied or used by any party other than Tenant, a Related Company,
or an entity resulting from a Transfer, then and payable by Tenant upon receipt
of an invoice. If Tenant defaults, Landlord may collect rent from the assignee,
subtenant, occupant or user (the "Assignee") of the Premises and apply it
towards the Rent due under this Lease. Such collection will not be deemed an
acceptance of the Assignee as tenant, will not waive or prejudice Landlord's
right to initiate legal action against Tenant to enforce Tenant's fulfillment of
its obligations under this Lease and will not release Tenant from such
obligations.
No assigning of this Lease or subletting of the Premises shall
release or be deemed
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to release the assignor or sublessor from liability under this Lease for the
defaults of any successor assignee (immediate or remote) or any subtenant.
Notwithstanding anything contained herein to the contrary, Tenant
shall have the right to grant to a lender a security interest in any of Tenant's
personal property, trade fixtures, furniture, equipment and capital improvements
to the extent same are personalty ("FF&E") located in the Premises. In the event
that Tenant elects to so encumber such FF&E, Landlord shall, within twenty (20)
days after (a) Tenant's request for a Waiver and (b) the date Tenant provides
all details with respect to Tenant's proposed financing as reasonably requested
by Landlord, execute and deliver a waiver of "landlord's" or other statutory or
common law liens of Landlord securing payment of rent or performance of any
other of Tenant's covenants under this Lease ("Waiver"). Such Waiver shall be in
substantially the form attached hereto as Exhibit H. and, if required by the
terms of any existing financing liens on the Real Property, shall otherwise be
acceptable to the entities secured thereby. Such Waiver shall include such other
terms as may be reasonably requested by the proposed FF&E lender.
15. QUIET ENJOYMENT. Upon payment of Basic Rent and Additional Rent
and performance by Tenant of all covenants on Tenant's part to perform under
this Lease within any applicable cure period, Tenant shall have and hold the
Premises, free from any interference from Landlord and any person lawfully
claiming through or under Landlord except as may be otherwise provided.
16. ALTERATIONS OR CHANGES.
16.1 Tenant shall not make any alterations, improvements, or
changes (collectively the "Changes") of any kind to the Premises without
securing the prior written consent of the Landlord, which consent shall not be
unreasonably withheld or delayed as long as the Changes are not unlawful or
would not materially reduce the value or utility of the Premises, in Landlord's
reasonable opinion, and which consent shall be evidenced by a separate agreement
between Landlord and Tenant setting forth the terms and conditions of making
such Changes, and the terms of payment therefor. All Changes shall be completed
in a prompt and workmanlike manner and shall not materially alter the character
or use of the Building. Notwithstanding anything to the contrary set forth
above, Tenant shall have the right to make interior non-structural Changes to
the Premises so long as the Changes do not diminish the value of the Premises
and so long as Landlord is given prior notice of the Changes Tenant intends to
make.
16.2 Landlord shall construct the Shell Space at Tenant's sole
cost and expense, in accordance with plans and specifications submitted by
Tenant for Landlord's consent, which consent shall not be unreasonably withheld
or delayed and shall not be withheld if said plans and specifications are
substantially similar to the Schematic Floor Plans and Construction Outline
Specifications regarding the initial Tenant improvements. Landlord shall seek
bids for such work
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from competing contractors, and the bids selected shall be the ones reasonably
acceptable to Landlord and Tenant. No construction of the Shell Space shall
commence until Tenant and Landlord have agreed to the costs thereof. Upon
completion of same by Landlord, Landlord shall represent, to the best of
Landlord's actual knowledge. that the Shell Space complies with all applicable
laws, including the Americans with Disabilities Act.
17. RESTORATION.
17.1 Premises Rendered Partially Untenantable: If, during the
Term, (i) the Building is damaged or destroyed by fire, storm, or other
casualty, or (ii) a portion of the Building is ordered by a duly constituted
public authority to be demolished, razed or altered due to deterioration or
unsafe condition (collectively the "Listed Causes") but in either event not to
the extent that Tenant, in its reasonable determination, is prevented from
carrying on its business in the Premises, Landlord shall promptly restore the
Premises to the condition existing immediately prior to the casualty. If the
damage renders a material portion of the Premises unusable by Tenant, or if
access to the Premises is materially impaired, the Basic Rent and Additional
Rent shall be apportioned from and reduced during the period of unusability by
the same percentage by which the unusable area bears to the Premises.
Notwithstanding anything to the contrary contained in this
Subsection 17.1, if during the last ten months of the Lease Term, fifty percent
(50%) or more of the Premises is destroyed, whether covered by insurance or not,
either party may elect to cancel and terminate this Lease by giving written
notice of its election to the other party within thirty (30) days after the date
of such destruction. However, regardless of any such notice of termination from
Landlord to Tenant, this Lease shall not be so terminated if Tenant exercises
its renewal option hereunder by written notice to Landlord within five (5)
business days after Landlord's notice to terminate and in any event within the
time set forth in Rider No. 1. In such event, this Lease shall remain in full
force and effect and Landlord shall proceed with repair and restoration of the
Premises to the extent prescribed herein.
17.2 Premises Rendered Wholly Untenantable: If, during the Term,
the Building is destroyed or so damaged by any of the Listed Causes to such an
extent that Tenant, in Tenant's reasonable determination, is prevented from
carrying on its business in the Premises (a "total destruction"), Landlord shall
restore the Premises. Notwithstanding the aforesaid, if Landlord is not able to
use insurance proceeds for such restoration and the reasonably estimated cost of
restoration exceeds $2,000,000.00, Landlord may terminate the Lease. Landlord
shall exercise this option by giving written notice to Tenant within thirty (30)
days after the casualty. In the event of termination, Tenant shall be required
to surrender the Premises as soon as possible and Basic Rent and Additional Rent
shall xxxxx from and be apportioned to the date of the casualty. If the Landlord
restores the Premises, the restoration shall be completed as promptly as
reasonably possible, and the Basic Rent and Additional Rent shall be apportioned
from and xxxxx during the
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period of restoration until the date when Tenant is able to make reasonable use
of the Premises.
Notwithstanding the provisions of this Subsection 17.2, within
sixty (60) days after the date of total destruction of the Premises, Landlord
shall obtain from Landlord's architect or contractor an estimate of the time
which will be required to repair the Premises. Landlord shall promptly
communicate said estimate to Tenant. In the event that said estimate of time
exceeds One hundred eighty (180) days (provided Landlord is able to provide
reasonably satisfactory alternate premises to Tenant in Xxxxxx County or Xxxx
Arundel County, Maryland within a fifteen (15) mile radius of the Premises and
at no greater rent than Tenant is then paying hereunder) or ninety (90) days (if
no alternate space can be provided) from the date of such destruction, then
Tenant shall have the right, within ten (10) days after receipt of said
estimate, to terminate this Lease without any further liability or obligation on
the part of the parties hereto for obligations thereafter accruing, provided
that Tenant shall give written notice to Landlord within said ten (10) days and
that no Event of Default exists hereunder.
17.3 Notwithstanding subsections 17.1 and 17.2, but subject to
Section 19.4, if the partial or total damage or destruction is due to the fault,
negligence, or other willful misconduct of Tenant, its agents, employees or
visitors, the damage shall be repaired by Landlord at Tenant's expense except in
such cases as Landlord, in its sole discretion, shall decide not to repair or
rebuild the Building or the Premises and there shall be no apportionment or
abatement of Rent.
17.4 No liability shall accrue to Landlord for delay in
commencing or completing any repairs or restoration to either the Premises or
the Building caused by adjustment of insurance claims governmental requirements
or any cause beyond Landlord's reasonable control. Nothing in this Section 17.4
shall affect the termination and abatement rights hereinabove provided.
17.5 No termination, pursuant to this Article 17, shall release
Tenant from any liability to Landlord or from any of the obligations or duties
imposed on Tenant prior to any termination.
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18. CONDEMNATION.
18.1 If during the Term, all or a substantial part of (i) the
Premises, (ii) the means of ingress and egress thereto, or (iii) the means of
obtaining services or utilities to which Tenant is entitled is taken by eminent
domain, this Lease shall terminate as of the date of taking, and the Basic Rent
and Additional Rent shall be apportioned to and xxxxx from that date. Tenant
shall have no right to participate in any award or damages for any such taking
and hereby assigns all of its right, title and interest therein to Landlord. For
purposes of this Article, "a substantial part of the Premises" shall mean so
much of the Premises as to render the remainder inadequate and not practicably
capable of repair so as to permit Tenant to carry on its business to
substantially the same extent and with substantially the same efficiency as
before the taking.
18.2 if, during the Term, less than "a substantial part of the
Premises" or the means of ingress and egress thereto is taken by eminent domain,
this Lease shall remain in full force and effect and Tenant shall have no right
to participate in any award or damages for the taking. Landlord shall, at its
expense, up to but not in excess of the amount of the award of damages received,
promptly make all necessary repairs and improvements needed to make the
remainder of the Premises adequate to permit Tenant to carry on its business to
substantially the same extent and the same efficiency as before the taking. If,
as a result of any taking, a part of the Building is rendered permanently or
temporarily unusable, the Basic Rent and Additional Rent shall be reduced by a
fair and reasonable amount, not, however, to exceed the proportion by which the
portion of the Premises taken or made unusable bears to the entire Premises. If
the unusability is temporary, the rental abatement shall be apportioned from the
date of taking to the date when full usability is restored. If the taking does
not render any part of the Premises unusable, there shall be no abatement of
Basic Rent and Additional Rent.
18.3 For the purpose of this Article, "taking under the power of
eminent domain" shall include a negotiated sale or lease and transfer of
possession to a condemning authority under bona fide threat of condemnation for
public use. Landlord alone shall have the right to negotiate with the condemning
authority and conduct and settle all litigation connected with the condemnation.
As used in this Article. the words "award or damages" shall, in the event of
such sale or settlement, include the purchase or settlement price.
18.4 Nothing shall, however, prevent Tenant from separately
claiming and receiving from the condemning authority compensation for the taking
of Tenant's own tangible property or the unamortized cost of the Capital
Improvements, and damages for Tenant's loss of business, business interruption,
goodwill or removal and relocation.
19. INSURANCE.
19.1 Tenant's Insurance responsibilities: Tenant shall, at its
expense throughout the
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Term, maintain in force public liability insurance insuring against claims for
bodily injury, including death, and property damage occurring in or about the
Premises and on or about the adjoining driveways and passageways, with a
combined single limit of not less than One Million Dollars ($1,000.000.00) per
occurrence and Two Million Dollars ($2,000,000.00) with respect to the
aggregate.
(a) All required insurance shall be effected with an
insurer licensed to do business in the State of Maryland, and all policies shall
name Landlord and Managing Agent as additional insureds and Tenant as the
insured, as their respective interests may appear. Each of these policies shall
provide that notwithstanding any act or negligence of Tenant which might
otherwise result in its forfeiture, the policy shall not be canceled without at
least fifteen (15) days written notice to each additional insured.
(b) Prior to Tenant's entering the Premises for the
purposes described in Section 7.3, and thereafter not less than thirty (30) days
prior to the expiration dates of expiring policies, the originals or
certificates of each policy and endorsement shall be delivered to Landlord,
together with satisfactory proof of the payment of the premiums.
(c) Landlord has no insurable interest in Tenant's
personal property and, therefore, Tenant shall be solely responsible for
maintenance of any and all casualty insurance protection for such personalty.
19.2 Landlord's Insurance Responsibilities. During the
construction of the initial Tenant improvements and throughout the Lease Term,
Landlord shall carry, or cause others to carry, policies of worker's
compensation, general liability and builder's risk or casualty insurance
covering occurrences at the Premises in commercially reasonable amounts or in
such other amounts as may be required by Landlord's lender, if any, from time to
time but, as to general liability, in at least a combined single limit of not
less than One Million Dollars ($1,000,000). Tenant shall be named as an
additional insured on the liability, builder's risk and casualty insurance
policies carried by Landlord. Within ten (10) days after this Lease is fully
executed, and thereafter not less than thirty (30) days prior to the expiration
dates of expiring policies, the originals or certificates of each policy and
endorsement shall be delivered to Tenant, together with satisfactory proof of
the payment of the premiums.
19.3 Actions by Tenant.
(a) Compliance with Insurance Requirements: Tenant shall
comply with all orders, rules, regulations, and requirements of any insurance
company which may at any time have in force any policy of fire, public
liability, or other insurance applicable to the Premises or the Building.
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(b) Increase in Insurance Premiums: Tenant shall not do,
or permit anything to be done in the Premises which will, in any way invalidate
or conflict with the fire insurance policies on the Real Property; obstruct or
interfere with the good order of the Building and the other tenants. Tenant
agrees that any increase in fire or other insurance premiums on the Real
Property and/or the contents thereof caused by the use or occupancy of Tenant
shall be Tenant's sole responsibility, payable as Additional Rent
(c) Landlord's Right to Terminate Lease: If any act or
conduct of Tenant in the operation of its business in a manner different from
that now being conducted by Tenant results in the inability of Landlord to
insure the Premises, Landlord shall have the option of terminating this Lease
upon thirty (30) days prior written notice unless Tenant remedies such offensive
act or conduct within such time period. If Landlord elects not to terminate this
Lease, Landlord may take any available legal action to enjoin Tenant from
continuing such acts or conduct. Landlord represents that Tenant's use of the
Premises as described in Section 6 hereof will not violate existing insurance
policies, and shall not cause an increase in the premium or a cancellation of
existing insurance policies.
19.4 Subrogation and Waiver. Landlord and Tenant hereby mutually
waive all claims for recovery from the other or its agents, employees, officers,
partners, affiliates, and any other person or entities occupying the Premises,
including subtenants provided such subtenants waive their right of subrogation
against Landlord, for any loss or damage to any of Landlord's property or
Tenant's property insured under valid and collectible insurance policies to the
extent of any recovery for loss insured thereunder or required by the terms of
this Lease to be insured hereunder and, to that end, the parties agree to a
mutual subrogation clause to be inserted or endorsed on each policy setting
forth that the insurance shall not be invalidated in the event that the insured
should waive in writing prior to any loss, any or all right of recovery against
the other party for any such loss
Notwithstanding anything set forth above, Landlord or Tenant, as
the case may be, (the ensured") shall have the right to recover from the other
the amount of the deductible on the Insured's policies for any damage or
destruction to the Building caused by the fault, negligence, omission, or other
misconduct of the other, its agents, employees, licensees, invitees, or
visitors, provided, however, if such deductible increases after the Commencement
Date, Landlord or Tenant, as the case may be, shall only be liable to pay the
increased deductible to the extent that it is equal to that of similar insurance
policies customarily carried by property owners and tenants, as the case may be,
of similar facilities in the greater Columbia, Maryland area, but in no event
shall such deductible amount increase in any year by more than twenty percent
(20%) of the preceding year's deductible. Prior to the Commencement Date, the
parties shall advise the other of the amount of such deductible.
19.5 Mutual Indemnification. Landlord and Tenant agree that each
will
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indemnify and hold harmless the other from any and all claims for liability of
any nature arising from any use, occupancy, construction, repairs, or other work
or activity done in, or about the Premises during the Term. or from any
condition of the Premises during the Term, or from any occurrence whatever in,
on or about the Premises during the Term, including all reasonable costs,
expenses and counsel fees in connection with any claim, to the extent such
claims arise from the negligence or willful misconduct of the indemnifying
party, or of its agents, servants, or employees or by such party's breach of the
provisions of this Lease. This mutual indemnification shall survive the
termination or expiration of this Lease.
20. TENANT'S DEFAULT.
20.1 Tenant shall be considered in default of this Lease upon the
happening of any one of the following:
(a) Failure to pay in full within five days after notice,
any and all Monthly installments of Basic Rent, Additional Rent or any other sum
required by the terms of this Lease, provided, however, that no notice shall be
required to be given to Tenant (but the aforesaid five-day grace period shall
continue to apply after the due dates of the payment in question) if Landlord
has given such notice to Tenant two (2) times in the preceding twelve months;
(b) Violation of or failure to perform any term, covenant
or condition of this Lease, which violation or failure is not a safety threat to
the Building and is not cured promptly but in no case more than thirty (30) days
after written notice to Tenant; except that in the event Tenant is unable to
complete the cure within the thirty (30) day period, the cure period shall be
extended if Tenant has commenced the cure within said thirty (30) days and
thereafter diligently prosecutes such cure to completion .
(c) The commencement of an action or proceeding under any
section or chapter of the Federal Bankruptcy Act or under any similar law or
statute of the United States or any state, or the adjudication of Tenant as a
bankrupt or insolvent by any court of competent jurisdiction; the appointment of
a receiver or trustee for all or substantially all of the assets of Tenant; or
the making of any assignment for the benefit of creditors by Tenant or if Tenant
admits in writing its inability to pay its debts generally as they come due or
files Articles of Dissolution with the appropriate authority of the place of its
incorporation unless, as to an involuntary proceeding, same is not dismissed or
vacated within ninety (90) days thereafter;
(d) The attachment, execution or other judicial seizure of
substantially all of Tenant's assets located in the Premises or of Tenant's
interest in this Lease which is not dismissed or vacated within ninety (90)
days;
(e) The holding of possession of the Premises after the
termination of this
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Lease without Landlord's written consent;
(f) The suspension of business by Tenant except if Tenant
continues to pay in full when due, any and all monthly installments of Basic
Rent, Additional Rent or any sum required by the terms of this Lease and fully
performs all other obligations required of it under this Lease within any
applicable cure periods;
(g) The abandonment of the Premises by Tenant unless prior
notice is given to Landlord and all Basic Rent and Additional Rent is kept
current and Tenant fully performs all other obligations required of it under
this Lease and the Building temperature is maintained at least 50(degree)F
during any period of cold weather; or
(h) The encumbrance of the Premises, or any part thereof,
by any mechanics' or materialmen's lien and/or any ether lien or encumbrance,
resulting from any act, matter or thing done or suffered to be done by Tenant
which is not bonded or discharged within thirty (30) days after notice to Tenant
of such lien or encumbrances
20.2 Upon the occurrence of any event of default, Landlord shall,
without any notice or demand, in addition to, and not in limitation of, any
other remedy permitted by law or this Lease, have the option to do any one or
more of the following:
(a) Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. Should Tenant fail to surrender
the Premises, Landlord may, without notice and without prejudice to any other
remedy available, re-enter and take possession of the Premises and remove Tenant
or anyone occupying the Premises and all property from the Premises, which
property may be removed and stored, for the account of, and at the expense and
risk of Tenant. Tenant waives all claims for damages which may be caused by
Landlord's reentry and taking possession of the Premises or removing or storing
the furniture and property as provided. Tenant shall save Landlord harmless from
any loss, fees, costs or damages suffered by Landlord because of any termination
and reentry. No reentry shall be considered or construed to be an illegal
forcible entry.
(b) Without terminating this Lease, declare to be due and
payable immediately, the entire amount of all Basic Rent which would have become
due and payable during the remainder of the Term of this Lease, said amount to
be discounted at the discount rate then in effect at the Federal Reserve Bank in
Baltimore, in which event Tenant agrees to pay the same to Landlord immediately.
This payment shall constitute payment in advance of the Basic Rent stipulated
for the remainder of the Term. Acceptance by Landlord of the payment of Basic
Rent shall not constitute a cure or waiver of any then existing default or any
subsequent default.
(c) Enter upon and take possession of the Premises,
without terminating this
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Lease and without being liable to prosecution or any claims for damages.
Landlord may then relet all or any portion of the Premises upon any terms and
conditions as Landlord, in its sole discretion, may deem advisable. In the event
of any reletting, rentals received by Landlord from reletting shall be applied:
first, to the payment of any indebtedness including costs of collection and
recovery, other than Basic Rent and Additional Rent, due from Tenant to
Landlord; second, to the payment of the Basic Rent and Additional Rent due and
unpaid; third, to the payment of cost of any repairs to the Premises; and the
residue, if any, shall be held by Landlord and applied in payment of future
Basic Rent and Additional Rent as the same may become due and payable. Should
rentals received from reletting during any month be less than the Basic Rent
required to be paid by Tenant herein, then Tenant shall immediately pay any
deficiency to Landlord. Deficiencies shall be calculated and paid monthly.
Notwithstanding any reletting without termination Landlord may at any time elect
to terminate this Lease for any previous breach or act of default. Should
Landlord at any time terminate this Lease for any breach or act of default, in
addition to any other remedy it may have, Landlord may recover from Tenant all
damages it may incur by reason of any breach or act of default. Landlord's
recovery shall include the cost of recovering the Premises, legal fees, and the
worth, at the time of termination, of the excess, if any, of the amount of Basic
Rent reserved in this Lease for the remainder of the stated Term over the then
reasonable rental value of the Premises, based on Landlord's rental rate for
comparable space, for the remainder of the stated Term.
20.3 if Tenant holds possession of the Premises after the
termination of this Lease without Landlord's written consent, Tenant shall
become a tenant from month to month at double the Basic Rent which was due for
the last lease year of the Term and upon all other terms herein specified and
shall continue to be such tenant from month to month until such tenancy shall be
terminated by either party giving the other a written notice of at least thirty
(30) days of its intention to terminate such tenancy. Nothing contained in this
Lease shall be construed as a consent by Landlord to the occupancy or possession
of the Premises by Tenant after termination of this Lease. Upon the termination
of this Lease, Landlord shall be entitled to the benefit of all public general
or public local laws relating to the speedy recovery of the possession of lands
and tenements held over by tenants, that may now or hereafter be in force.
20.4 All remedies available to Landlord under this Lease and at
law and in equity shall be cumulative and concurrent. No termination of this
Lease, taking or recovering possession of the Premises, nor acceptance of any
Monthly Installment of Basic Rent or Additional Rent by Landlord with knowledge
of the breach of any covenant or condition, shall act as a waiver of the breach
or deprive Landlord of any remedies or actions against Tenant for Basic Rent or
Additional Rent, for charges, or for damages for the breach of any covenant or
condition, nor shall the bringing of any action for Basic Rent or Additional
Rent, charges or damages for breach, be construed as a waiver or release of the
right to insist upon the forfeiture and to obtain possession of the Premises.
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20.6 Tenant shall be considered in "Habitual Default" of this
Lease upon Tenant's failure, on three or more occasions during any lease year,
to pay, when due following any applicable notice or cure period, any Monthly
Installment of Basic Rent, Additional Rent or any other sum required by the
terms of this Lease. Upon the occurrence of any event of Habitual Default,
Tenant shall immediately be deemed to have released any and all options or
rights granted, or to be granted, to Tenant under the terms of this Lease
(including, without limitation, rights of renewal, rights to terminate, or
rights of first refusal).
21. WAIVER OF REDEMPTION. Tenant hereby expressly waives (to the extent
legally permissible) for itself and all persons claiming by, through or under
it, any right of redemption or right for the restoration of the operation of
this Lease under any present or future law in case Tenant shall be dispossessed
for any cause, or in case Landlord shall obtain possession of the Premises as
provided in this Lease. Tenant understands that the Premises are leased
exclusively for business, commercial, and mercantile purposes and, therefore,
shall not be redeemable under any provision of law.
22. ASSIGNMENT OF LANDLORD'S INTEREST. Landlord shall have the right to
assign this Lease to another entity. In the event of an assignment, Tenant
agrees to recognize the assignee as Landlord and shall execute, upon Landlord s
request, an instrument certifying the existence and good standing of this Lease
and any agreement or modification of this Lease documenting the assignment,
including endorsement of applicable insurance policies.
Tenant shall, after notice of assignment, pay all Basic Rent
subsequently coming due to assignee and give all required notices under this
Lease, both to Landlord and the assignee. Tenant shall also have all required
policies of insurance endorsed so as to protect the assignee's interest as it
may appear and deliver the policies or certificates to the assignee.
23. A. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS. If Tenant fails
to perform any covenant or duty required of it by this Lease or by law, Landlord
shall have the right, but not the duty, to perform these obligations after
notice and the expiration of any applicable cure period. Any performance by
Landlord under this Article will be undertaken solely at the option of Landlord
and at the sole cost and expense of Tenant. Tenant will pay Landlord all costs
incurred by Landlord in performing Tenant's obligations, plus Landlord's
reasonable supervisory fee, as Additional Rent.
B. TENANT'S RIGHT TO PERFORM LANDLORD'S COVENANTS. In addition to
all other remedies available at law, Tenant shall have the right after providing
fifteen (15) days prior written notice to Landlord (which period may be extended
for whatever period of time is reasonably required if such default cannot be
reasonably cured within fifteen (15) days so long as Landlord commences such
cure within said fifteen-day period and thereafter diligently prosecutes such
cure until completion), to cure a default of Landlord in which event Landlord
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shall be liable to Tenant for all reasonable costs and expenses incurred by
Tenant in curing such default; provided, however, in no event shall Tenant be
entitled to deduct the costs and expenses of curing such default from any
amounts payable by Tenant pursuant to the terms of the Lease, including all
Basic Rent and Additional Rent.
24. WAIVER OF BREACH. The failure of either party to insist upon a
strict performance of any of the Lease terms, conditions, or covenants shall
neither be deemed a waiver of any rights or remedies that such party may have
nor be deemed a waiver of any subsequent breach or default. This instrument may
not be changed, modified, or discharged orally.
25. NOTICE. All notices to Tenant under this Lease shall be conclusively
presumed to have been delivered (a) when actually delivered to the Premises,
with a signed receipt acknowledging delivery or (b) by courier service, service
fees prepaid, with a signed receipt acknowledging delivery addressed to Tenant,
Attention: Chief Financial Officer, at the Premises or at Tenant's Address or to
any other address Tenant may from time to time designate with a copy to Xxxxxxxx
Xxxx, Esquire, Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 1285 Avenue of the
Americas, Xxx Xxxx, Xxx Xxxx 00000-0000. All notices to Landlord shall be
conclusively presumed to have been delivered when actually delivered to Landlord
at Landlord's Address, Attention: Landlord's Representative with a signed
receipt acknowledging delivery, or to any other place as Landlord may from time
to time designate with a copy to Xxx Xxxxx Xxxxxx, Esquire, Xxxxxxx and Xxxxxxx,
20th Floor, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
26. SEVERABILITY. Each and every term of this Lease is, and shall be
construed to be, a separate and independent covenant and shall not be construed
to be dependent on any other provision of this Lease unless expressly provided.
If any term of this Lease shall, to any extent, be declared invalid or
unenforceable, the remainder of this Lease shall not be affected.
27. LIMITED PERSONAL LIABILITY. The term "Landlord" as used in this
Lease means only the owner, the mortgagee, or the trustee or the beneficiary
under a deed of trust, as the case may be, for the time being, of the Building
(or the owner of a lease of the Building). so that in the event of any transfer
of title to the Building (or an assignment or sublease of a lease of the
Building), the Landlord shall be and hereby is entirely freed and relieved of
all covenants and obligations of Landlord hereunder thereafter accruing.
Landlord is a limited partnership, and no partner, general or limited, of said
partnership, as it may now or hereafter be constituted, shall have any personal
liability to Tenant and/or any person or entity claiming under, by or through
Tenant upon any action, claim, suit or demand brought under or pursuant to the
terms and conditions of this Lease and/or arising out of the use or occupancy by
Tenant of the Premises, and, as to Landlord, recourse shall be limited to
Landlord's interest in the Real Property or to refinancing or sales proceeds
received by Landlord after notice from Tenant of any failure by Landlord to
perform its obligations hereunder within any applicable cure period.
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28. ENVIRONMENTAL ASSURANCES.
28.1 Landlord's Representations and Indemnification. Landlord
represents to Tenant that, to Landlord's actual knowledge, neither Landlord nor
the previous tenant of the Building has generated, stored, transported, treated
or disposed of, or will generate, store, transport, treat or dispose of
Hazardous Substances (as defined by federal or state laws) at, to or from the
Premises, except for quantities of Hazardous Substances not in excess of
reportable guidelines therefor. Landlord has delivered to Tenant a recent Phase
I audit of the Premises (the "Audit"). Landlord agrees to indemnify and defend
Tenant (with legal counsel reasonably acceptable to Tenant) from and against any
costs, fees or expenses incurred by Tenant in connection with any asbestos and
asbestos containing material in the Leased Premises. This indemnification by
Landlord will remain in effect after the termination or expiration of this
Lease.
28.2 Tenant's Covenants. Tenant covenants with Landlord:
(1) that it shall not Generate Hazardous Substances except
for quantities not in excess of reportable guidelines therefor at, to or from
the Premises unless the same is specifically approved in advance by Landlord in
writing;
(2) in using and occupying the Premises or suffering or
permitting the Premises to be used or occupied, to comply with all obligations
imposed by applicable law, and regulations promulgated thereunder, and all other
restrictions and regulations upon the Generation of Hazardous Substances at, to
or from the Premises;
(3) to deliver promptly to Landlord true and complete
copies of all notices received by Tenant from any governmental authority with
respect to the Generation by Tenant of Hazardous Substances (whether or not at,
to or from the Premises);
(4) to complete fully, truthfully and promptly any
questionnaires sent by Landlord with respect to Tenant's use of the Premises and
Generation of Hazardous Substances;
(5) to permit entry onto the Premises in accordance with
Section 10 above by Landlord or Landlord's representatives at any reasonable
time upon reasonable prior notice of at least one (I) business day (or at least
three (3) business days if access to any laboratory space is required) which
notice may be verbal, to verify and monitor Tenant's compliance with its
representations, warranties and covenants set forth in this Section; and
(6) to pay to Landlord, as additional rent, the costs
incurred by Landlord hereunder, including the costs of such monitoring and
verification provided, however, that the
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CIENA
costs of such monitoring and verification shall not exceed $1000.00 in any
twelve month period, unless Landlord has reasonable cause to be believe Tenant
may not be complying with its obligations under this Section 28.2.
28.3 Indemnification. Tenant agrees to indemnify and defend
Landlord (with legal counsel reasonably acceptable to Landlord) from and against
any costs, fees or expenses (including, without limitation, environmental
assessment, investigation and environmental remediation expenses, third party
claims and environmental impairment expenses and reasonable attorneys' fees and
expenses) incurred by Landlord in connection with Tenant's Generation of
Hazardous Substances at, to or from the Premises or in connection with Tenant's
failure to comply with its representations, warranties and covenants set forth
in this Section. This indemnification by Tenant shall survive the termination or
expiration of this Lease.
28.4 Definitions. The term "Hazardous Substance" means (i) any
"hazardous waste" as defined by the Resource Conservation and Recovery Act of
1976 (42 U.S.C. Section 6901 et seq.), as amended from time to time, and
regulations promulgated thereunder; (ii) any "hazardous substance" as defined
by the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (42 U.S.C. Section 9601 et seq.), as amended from time to time, and
regulations promulgated thereunder; (iii) any "oil, petroleum products, and
their by-products" as defined by the Maryland Environment Code Xxx. Section
4411(3)(i), as amended from time to time, and regulations promulgated
thereunder; (iv) any "controlled hazardous substance" or "hazardous substance"
as defined by the Maryland Environment Code Xxx., Title 7, subtitle 2, as
amended from time to time, and regulations promulgated thereunder; (v) any
"infectious waste" as defined by the Maryland Environment Code Xxx. Section
9-227, as amended from time to time, and regulations promulgated thereunder;
(vi) any substance the presence of which on the Real Property is prohibited,
regulated or restricted by any law or regulation similar to those set forth in
this definition; and (vii) any other substance which by law or regulation
requires special handling in its Generation. The term "To Generate" means to
use, collect, generate, store, transport, treat or dispose of.
28.5 Lien Notice. Tenant shall promptly notify Landlord as to any
liens threatened or attached against the Premises or the Real Property pursuant
to any Environmental Law which are a result, direct or indirect, of Tenant's use
or storage of Hazardous Substances. If such a lien is filed against the Premises
or the Real Property, Tenant shall, within fifteen (15) days from the date that
the lien is placed, and in any event prior to the date any governmental
authority commences proceedings to sell the Real Property pursuant to the lien,
either: (a) pay the claim and remove the lien; or (b) furnish either (i) a bond
or cash deposit reasonably satisfactory to Landlord and Landlord's title
insurance company in an amount not less than the claim out of which the lien
arises, or (ii) other security satisfactory to the Landlord and to any superior
mortgagee in an amount not less than that which is sufficient to discharge the
claim out of which the lien arises.
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CIENA
28.6 in the event this Lease is terminated, canceled or
surrendered for any reason whatsoever, Tenant shall deliver the Premises to
Landlord free of any and all Hazardous Substances other than as may have been
noted in the Audit or as is caused by persons other than Tenant, its agents,
employees or invitees ("Third Parties") so that the Premises shall be returned
to Landlord in the same condition as when delivered to Tenant. The reasonable
costs of Tenant's proving such causal connection, which costs must be mutually
agreed to by the parties prior to their being incurred, shall be borne by
Landlord if such investigation shows such Hazardous Substances to have been
caused by Third Parties. Any claim that Tenant has violated the provisions of
this Section 28.6 shall be made within the applicable statute of limitations. If
such claim is more than two (2) years after termination of this Lease, Landlord
shall initially bear the burden of proof and the costs incurred in determining
whether Tenant has violated these provisions, provided, however, if Landlord
proves Tenant's violation, Landlord shall be entitled to recover from Tenant all
such costs and any other damages resulting therefrom.
29. COMMISSIONS. Tenant represents that Tenant has dealt directly with,
and only with, the Broker in connection with this Lease, and that insofar as
Tenant knows, no other broker negotiated this Lease or is entitled to any
commissions in connection with it. Tenant and Landlord each shall hold the other
harmless from and indemnify the other for any costs incurred by the other
arising out of any other broker's claim that such other broker has assisted such
person with respect to this Lease. Landlord shall pay all commissions due to the
aforesaid Broker in accordance with their separate agreement.
30. ATTORNEY'S FEES: in the event that any action shall be instituted by
either of the parties hereto for the enforcement of any of its rights or
remedies in and under this Lease, the prevailing party, whether in court or by
way of out-of-court settlement, shall be entitled to recover from the
nonprevailing party or parties such prevailing party's attorneys' fees, court
costs, expert witness fees and/or other expenses relating to such controversy,
including attorneys' fees, court cost and/or expenses on appeal, if any.
31. TIME. Time is of the essence of this Lease with respect to Tenant's
monetary obligations subject to any applicable notice and grace period.
32. ZONING. Landlord represents that, as of the date hereof, Landlord
has not received from any state or local governmental authority any notice that
the Building is in violation of any applicable state or local building and
zoning codes. Landlord assumes no responsibility for current zoning requirements
or for future changes in zoning classifications of the Real Property.
33. LIMITED WAIVER OF JURY TRIAL. Landlord and Tenant desire a prompt
resolution of any litigation between them with respect to this Lease. To that
end, Landlord and Tenant waive trial by jury in any action, suit, proceeding
and/or counterclaim brought by either
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CIENA
against the other or any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, any claim of injury or damage and/or any statutory
remedy. This waiver is knowingly, intentionally and voluntarily made by the
parties. Each acknowledges that neither the other nor any person acting on
behalf of the other has made any representations of fact to induce this waiver
of trial by jury or in any way to modify or nullify its effect.
Each further acknowledges that it has been represented (or has
the opportunity to be represented) in the signing of this Lease and the making
of this waiver by independent counsel, selected of its own free will, and that
it has had the opportunity to discuss this waiver with counsel. Each further
acknowledges that it has read and understands the meaning and ramifications of
this waiver of jury trial.
34. ARBITRATION. Notwithstanding the foregoing, any controversy or claim
arising out of or relating to the "reasonableness" of an act or an expense, or
the propriety of including an expense within Common Area Expenses or Additional
Services Expenses shall be settled by arbitration if the parties are not able to
resolve the issue after at least thirty (30) days good faith negotiation. The
arbitrator will be an independent arbitrator selected by the two individuals
appointed by the parties (one appointed by Landlord and the other appointed by
Tenant) within ten (10) days after the need therefor arises. Such individuals
shall name the arbitrator within fifteen (15) days after their appointment by
the parties. The arbitration shall be conducted promptly after the arbitrator's
appointment and in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof and shall, in
any event, be final and binding upon the parties. The cost thereof shall be
borne in accordance with the decision of the arbitrator
35. MISCELLANEOUS.
(a) As used in this Lease, and where the context requires:
(1) the masculine shall be deemed to include the feminine and neuter and
vice-versa; and (2) the singular shall be deemed to include the plural and
vice-versa.
(b) This Lease was made in the State of Maryland and shall
be governed by and construed in all respects in accordance with the laws of the
State of Maryland.
(c) Tenant covenants and agrees that it shall not
inscribe, affix, or otherwise display signs, advertisements or notices in, on,
upon or behind any windows or on any door, partition or other pan of the
interior or exterior of the Building which is visible from the exterior or is
permanently attached, without the prior written consent of Landlord which
consent shall not be unreasonably withheld or delayed provided same complies
with the requirements of the
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CIENA
Xxxxxx Research and Development Corporation ("HRD"). if such consent be given by
Landlord, any such sign, advertisement, or notice shall be inscribed, painted or
affixed by Landlord, or a company approved by Landlord, but the reasonable and
customary cost of the same shall be charged to and be paid by Tenant, and Tenant
agrees to pay the same promptly, on demand.
(d) Except as approved by HRD and Landlord in connection
with the initial Tenant improvements, Tenant covenants and agrees that it shall
not attach or place awnings, antennas or other projections to the outside walls
or any exterior portion of the Building, without Landlord's consent, which
consent shall not be unreasonably withheld or delayed provided same complies
with the requirements of HRD. No curtains, blinds, shades or screens shall be
attached to or hung in, or used in connection with, any window or door of the
Premises which is visible from the exterior. without the prior written consent
of Landlord which consent shall not be unreasonably withheld or delayed provided
same complies with the requirements of HRD.
(e) Tenant further covenants and agrees that it shall not
pile or place or permit to be placed any goods on the sidewalks or parking lots
in the front, rear or sides of the Building or in a place which in any manner
blocks said sidewalks, parking lots and loading areas and/or not to do anything
that directly or indirectly will take away any of the rights of ingress or
egress or of light from any other tenant of Landlord on the Real Property.
(f) Tenant, Tenant's servants, agents, invitees, employees
and/or licensees shall not park on, store on, or otherwise utilize any parking
or loading areas on the Real Property, except as shown on "Exhibit A" in
accordance with such rules and regulations as Landlord may from time to time
promulgate with respect thereto, subject to the restrictions on such rules and
regulations as are referenced in Section 8.2 hereof.
(g) Except as otherwise specifically provided in this
Lease, no abatement, refund, offset, counter-claim, recoupment, diminution or
any reduction of rent, charges or other compensation shall be claimed by or
allowed to Tenant, or any person claiming under it, under any circumstances,
whether for inconvenience, discomfort, interruption of business, or otherwise,
arising from the making of alterations, changes, additions, improvements or
repairs to the Building or the Premises, by virtue or because of any present or
future governmental laws, ordinances, or for any other cause or reason
(h) All plats, exhibits, riders or other attachments to
this Lease shall be deemed a part hereof and incorporated by reference herein.
(i) This Lease and the Cover Letter of even date herewith
contain the entire agreement among the parties regarding the subject matter of
this Lease. There are no promises, agreements. conditions, undertakings,
warranties or representations, oral or written, express or implied, among them,
relating to this subject matter, other than as herein set forth. This Lease
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CIENA
is intended by the parties to be an integration of all prior or contemporaneous
promises, agreements, conditions, negotiations and undertakings between them.
This Lease may not be modified orally or in any other manner than by an
agreement in writing signed by all the parties or their respective successors in
interest. This Lease may be executed in several counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
(j) This Lease shall be effective only when fully executed
by Landlord and delivered to Tenant.
(k) if at any time, any lienholder or other party which
has a right to require Landlord to do so, requires the recordation of this
Lease, Tenant will execute such acknowledgements as may be necessary to effect
such recordation. If Landlord requires, or is required, to record this Lease, it
will pay all recording fees, transfer taxes and/or documentary stamp taxes
payable in connection with the recordation. If Tenant is required to record this
Lease, it will make all such payments. Tenant will not record this Lease or a
memorandum thereof without Landlord's prior consent, except as may be allowed or
required in connection with the matters allowed under Section 7.5 above.
(l) In the event that either party to this Lease is
delayed, hindered or prevented, by reason of strikes, lock-outs, labor troubles,
inability to produce materials, delays in transportation, failure of power,
restrictive governmental laws or regulations, riots, insurrection, war, fire or
other casualties, acts of God, rain or other weather conditions or any other
reason (excluding lack of funds) not reasonably within the control of the party
so delayed, hindered or prevented, from performing work or doing any act
required under the terms of this Lease, then performance of such act will be
excused for the period of the delay, and the period of the performance of any
such act will be extended for a period equal to the period of such delay but in
no event more than ninety (90) days beyond any time period stated herein. The
occurrence of any event described in this subsection will not operate to excuse
Tenant from prompt payments of Basic Rent, Additional Rent or any other payments
required by this Lease, nor shall it reduce any rental abatement period granted
Tenant hereunder, or affect Tenant's right to terminate under Section 2.1 above.
36. TENANT'S AUTHORITY. Tenant warrants to Landlord that Tenant is a
corporation organized and validly existing in good standing under the laws of
the State of Delaware and qualified to transact business in the State of
Maryland. In addition, Tenant warrants to Landlord that this Lease has been
properly authorized and executed by Tenant and is binding upon Tenant in
accordance with its terms. Tenant's resident agent's name and address in the
State of Maryland are Xx. Xxxxxxx Xxxxxxx, 0000-X Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxx
00000. Tenant agrees to notify Landlord in writing of any change with respect to
its resident agent.
37. LANDLORD'S AUTHORITY. Landlord warrants to Tenant that Landlord is a
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CIENA
limited partnership organized and validly existing in good standing under the
laws of the State of Maryland. In addition, Landlord warrants to Tenant that
this Lease has been properly authorized and executed by Landlord and is binding
upon Landlord in accordance with its terms. Landlord's resident agent's name and
address in the State of Maryland is C. Xxxxxxx Xxxxxxx, c/x Xxxxxxx & Xxxxx,
0000 Xxxxxxxx Xxxxxxx Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000. Landlord agrees to
notify Tenant in writing of any change with respect to its resident agent.
38. LENDER'S APPROVAL. This Lease is specifically contingent upon the
approval of its terms by Landlord's mortgagees (collectively, the "Lender").
Tenant agrees to execute and deliver to Landlord an amendment to this Lease
incorporating such modifications of, and additions to, the terms and provisions
of this Lease as Lender shall require. Notwithstanding the foregoing, Tenant
shall not be required to execute any such amendment which shall adversely affect
Tenant's rights hereunder. If Landlord has not been able to obtain the Lender's
consent and the non-disturbance agreement referenced in Section 11 above within
45 days after the date this Lease is fully executed, Tenant shall have the right
as its sole remedy hereunder, to terminate this Lease provided it gives notice
of such election to Landlord with five (5) days thereafter. If Tenant elects to
terminate the Lease in such event Landlord shall promptly remit to Tenant any
amounts paid by Tenant to Landlord pursuant to Section 6D of the Cover Letter
above $15 000.00.
39. EXPANSION. Landlord and Tenant contemplate the need to expand the
Building in the future and therefore agree to use reasonable efforts to effect
an expansion as generally shown on Exhibit F attached hereto (the "Expansion").
If any additional parking is reasonably required to accommodate the Expansion,
Landlord shall attempt to obtain land therefor, on a commercially reasonable
basis, by purchasing or leasing a portion of Lot B adjoining the Premises which
Lot B is not now owned or leased by Landlord or Tenant.
IN WITNESS WHEREOF, the Landlord has caused its seal to be affixed and
its proper and duly authorized officers or partners to affix their signatures,
and Tenant has caused its seal to be affixed and its proper and duly authorized
officers or partners to affix their signatures, the day and year first written
above.
WITNESS: LANDLORD
C&S Corridor-32 Limited Partnership
Xxxxxxx & Xxxxx Properties, Inc.
Managing Agent
By: /s/ X. X. XXXXXXX
------------------------------------
Name: X. X. Xxxxxxx
-------------------------------------
Title: President
-----------------------------------
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00
XXXXX
XXXXXX/XXXXXXX: XXXXXX:
CIENA CORPORATION
Xxxxxxx X. Xxxxxx By: /s/ XXXXXX X. XXXXXXXX (SEAL)
-------------------------------- ------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Vice President & Chief
----------------------------------
Financial Officer
----------------------------------
LANDLORD'S ACKNOWLEDGEMENT
STATE OF MARYLAND COUNTY (CITY) OF Baltimore, TO WIT:
I HEREBY CERTIFY that on this 15th day of December, 1995 before me,
the subscriber, a Notary Public of the State aforesaid, Baltimore County (City),
duly commissioned and qualified, personally appeared C. Xxxxxxx Xxxxxxx, who
acknowledged himself to be an authorized general partner of C&S Corridor-32
Limited Partnership, a Maryland limited partnership, and that he, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing, in my presence, the name of said limited partnership by
himself as such partner.
WITNESS my hand and Notarial Seal.
/s/ XXXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxxx X. Xxxxxxx
Notary Public
My Commission expires: January 6, 1998
--------------------
TENANT'S ACKNOWLEDGEMENT
STATE OF MARYLAND, COUNTY (CITY) OF Xxxx Arundel, TO WIT:
I HEREBY CERTIFY that on this 5th day of October, 1995 before
me, the subscriber, a Notary Public of the State aforesaid, Xxxx Arundel
County (City), duly commissioned and qualified personally appeared
Xxxxxx X. Xxxxxxxx who acknowledged himself to be the Vice President, Chief
Financial Officer of CIENA Corporation, a Delaware corporation, and that he,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained by signing, in my presence, the name of said corporation
by himself as such
officer.
WITNESS my hand and Notarial Seal.
CIENA
/s/ Xxxxx X. Xxxx
----------------------------------
Notary Public
My Commission expires: April 22, 1997
-------------------
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CIENA
----------------------------------
Notary Public
My Commission expires:
-------------------
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44
RIDER NO. 1
Renewal Option
Rider to Section 2 (Term)
Provided (i) this Lease is then in full force and effect, (ii) Tenant is
not in default following any applicable cure period respecting any provision or
condition of this Lease either on the date Tenant elects to renew or on the date
the renewal term commences, and, (iii) Tenant has not been in "Habitual Default"
during the original term of this Lease, then Tenant shall have the right to
renew this Lease for one (1) renewal term (the "Renewal Term") of five (5) years
immediately following the expiration of the original term on the same terms,
conditions, and provisions as are set forth in this Lease with the same force
and effect as though this Lease had originally provided for an eleven (11) year
term, save that:
(i) there shall be no further right of renewal, after the
renewal term, and
(ii) the Basic Rent payable with respect to the Premises
shall be adjusted by increasing the Basic Rent as follows:
Monthly
Installment
Rate Per Gross of Basic Period
Period Square Ft. Square Ft. Rent Total
------ ---------- ---------- ---- -----
Months 73-84 $9.37 50,550 $39,467.38 $473,608.50
Months 85-96 $9.44 50,550 $39,750.13 $477,001.50
Months 97-108 $9.44 50,550 $39,750.13 $477,001.50
Months 109-120 $9.84 50,550 $41,433.63 $497,203.50
Months 121-132 $9.98 50,550 $42,036.66 $504,439.95
Tenant shall be deemed to have waived the right to exercise this renewal
option unless not less than 270 days prior to the date of termination of the
original term, Tenant shall have notified Landlord in writing of Tenant's
election to renew (the "Renewal Notice"). Time is of the essence with respect to
Tenant's exercise of its rights under this Rider and Tenant acknowledges that
Landlord requires strict adherence to the requirement that the Renewal Notice be
timely made and in writing.
45
Rider No. 2
Exclusions
Rider to Subsection 3.4
Notwithstanding anything to the contrary contained in this Lease, Common
Area Expenses shall not include any of the followings
(a) Franchise, estate, gift, mortgage, gains, transfer,
unincorporated-business, commercial rent or income taxes imposed upon Landlord;
(b) Salaries and benefits of personnel above the grade of property
manager;
(c) Any sum paid to any entity affiliated with Landlord which is in
excess of the amount that would have been payable in the absence of such
affiliation with Landlord:
(d) Attorney's fees and disbursements and other costs in connection with
(i) any judgment, settlement or arbitration resulting from any tort liability on
the part of Landlord and the amount of such settlement or judgment or (ii) any
bankruptcy or similar proceeding:
(e) Arbitration expenses to the extent such expenses are unrelated to
the operation, repair, cleaning, maintenance, management, security or ownership
of the Project;
(f) Costs incurred by Landlord due to Landlord's failure to comply with
the provisions of leases with other tenants in the Project or any other contract
or agreement pertaining to the Project;
(g) Any expense included in Taxes as that term is defined in Subsection
3.4;
(h) Dues paid to any trade associations or similar expenses;
(i) Any expense included in Additional Services Expenses as that term is
defined in Section 3.4
(j) Any costs which are subsequently rebated or credited to Landlord;
(k) Costs of removing hazardous substances including asbestos containing
material to the extent caused by Landlord or its agents, employees or
representatives;
(l) The costs of capital improvements, other than the cost of replacing
any heat exchangers which shall be equally shared between Landlord and Tenant,
and other than Capital Government Compliance Costs as defined in Section 8.1 of
the Lease;
(m) Marketing, promotion and advertising expenses in connection with the
leasing of space in the Building;
(n) All costs associated with Landlord's financing of the Real Property;
46
(o) Costs paid under any other provision of this Lease which, if
included within Common Area Expenses, would result in Tenant's paying twice for
the same expense; and
(p) Any Real Estate Taxes or interest, fines, penalties or other late
payment charges paid by Landlord thereon, provided Tenant has performed timely
its obligations to pay all increases in such Real Estate Taxes as defined in
Subsection 3.4 (the same being payable in accordance with Subsection 3.5(a)).
