1
EXHIBIT 10.7
Dated as set forth below
AMENDMENT 3 TO LEASE AGREEMENT DATED July 16, 1993
between
10089 Management, L.L.C., Landlord
and
Advanced Communication Systems, Inc., Tenant
1. Paragraph 1.(b) will be changed to read as follows:
The Tenant shall pay annual rent, which annual rent during the first year
of this Lease shall equal $13.00 per square foot of rentable space in the
premises and which shall increase annually by an amount equal to the Consumer
Price Index (CPI) of the annual rent then in effect, and shall be payable in
monthly installments in advance, on the first day of each calendar month. The
CPI will be known as the United States Bureau of Labor Statistics, Consumer
Price Index for Urban Earners and Clerical Workers, (CPI-W) for Washington,
DC-MD-VA, all items Index (1982-84=100).
Rent for any period of less than one month shall equal 1/30 of the monthly
rent payment for each day of the applicable period.
2. The revision to Paragraph 1.(b) will be effective retroactive to September
1, 1993.
3. All other terms and conditions of the Lease Agreement dated July 16, 1993
remain unchanged.
IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment 3 to
Lease Agreement dated July 16, 1993 and affixed their seals as of the date
set forth below.
Landlord: Tenant:
10089 Management, L.L.C. Advanced Communication Systems, Inc.
by: /s/ XXXXXX X. XXXXXXXX by: /s/ XXXXXX X. XXXXXXXX
--------------------------- ---------------------------
Date: March 15, 1994
-------------------------
2
January 15, 1994
AMENDMENT 2 TO LEASE AGREEMENT DATED July 16, 1993
between
10089 Management, L.L.C., Landlord
and
Advanced Communication Systems, Inc., Tenant
1. The Premises described in the lease dated July 16, 1993 is changed to an
increased area of the Floor Plan attached hereto as Exhibit A, Revision 1,
effective January 15, 1994.
2. The Area of Premises is changed to approximately 22,264 rentable square feet
of office space on the 1st, 2nd, 3rd and 4th Floor of the Building, effective
January 15, 1994.
3. The Basic Rental in Paragraph 1.(b) of the lease is changed to equal monthly
installments of $24,119.33 effective January 15, 1994, subject to adjustment as
provided in the basic Lease Agreement. Prorated rent for January 1994 is
calculated as follows:
01/01/94 through 01/14/94 ($22,194.25 x 14/31) $10,023.21
01/15/94 through 01/31/94 ($24,119.33 x 17/31) $13,226.73
----------
Total $23,249.94
4. The Annual Basic Rental in Paragraph 1.(b) of the lease is changed to
$289,432.00, effective January 15, 1994.
5. The Basic Rental Escalation of 3% in Paragraph 1.(b) will remain the same
and the schedule is changed to read as follows:
Period Annual Rent Monthly Rent Payment
09/01/93 - 11/30/93 $220,740.00 $18,395.00 (4 mos.)
12/01/93 - 01/14/94 $266,331.00 $22,194.25 (1.5 mos.)
01/15/94 - 08/31/94 $289,432.00 $24,119.33 (6.5 mos.)
09/01/94 - 08/31/95 $298,114.96 $24,842.91
09/01/95 - 08/31/96 $307,058.41 $25,588.20
09/01/96 - 08/31/97 $316,270.16 $26,355.85
09/01/97 - 08/31/98 $325,758.26 $27,146.52
09/01/98 - 08/31/99 $335,531.01 $27,960.92
09/01/99 - 08/31/00 $345,596.94 $28,799.75
09/01/00 - 08/31/01 $355,964.85 $29,663.74
09/01/01 - 08/31/02 $366,643.80 $30,553.65
09/01/02 - 08/31/03 $377,643.11 $31,470.26
6. All other terms and conditions of the Lease Agreement dated July 16, 1993
remain unchanged.
3
IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment 2 to
Lease Agreement dated July 16, 1993 and affixed their seals as of the date
first above written.
Landlord: Tenant:
10089 Management, L.L.C. Advanced Communication Systems. Inc.
by: [SIG] by: [SIG]
-------------------------- ---------------------------
4
EXHIBIT A
FLOOR PLANS
10089 XXX HIGHWAY
[FLOOR PLAN]
First Floor Plan
[FLOOR PLAN]
Second Floor Plan
5
December 1, 1993
AMENDMENT 1 TO LEASE AGREEMENT DATED July 16, 1993
between
10089 Management, L.L.C., Landlord
and
Advanced Communication Systems, Inc., Tenant
1. The Premises described in the lease dated July 16, 1993 is changed to an
increased area of the Floor Plan attached hereto as Exhibit A, Revision 1,
effective December 1, 1993.
2. The Area of Premises is changed to approximately 20,487 rentable square feet
of office space on the 2nd, 3rd and 4th Floor of the Building, effective
December 1, 1993.
3. The Basic Rental in Paragraph 1.(b) of the lease is changed to equal monthly
installments of $22,194.25 effective December 1, 1993, subject to adjustment as
provided in the basic Lease Agreement.
4. The Annual Basic Rental in Paragraph 1.(b) of the lease is changed to
$266,331.00, effective December 1, 1993.
5. The Basic Rental Escalation of 3% in Paragraph 1.(b) will remain the same
and the schedule is changed to read as follows:
Period Annual Rent Monthly Rent Payment
09/01/93 - 11/30/93 $220,740.00 $18,395.00 (4 mos.)
12/01/93 - 08/31/94 $266,331.00 $22,194.25 (8 mos.)
09/01/94 - 08/31/95 $274,320.93 $22,860.08
09/01/95 - 08/31/96 $282,550.56 $23,545.88
09/01/96 - 08/31/97 $291,027.08 $24,252.26
09/01/97 - 08/31/98 $299,757.89 $24,979.82
09/01/98 - 08/31/99 $308,750.63 $25,729.22
09/01/99 - 08/31/00 $318,013.15 $26,501.10
09/01/00 - 08/31/01 $327,553.54 $27,296.13
09/01/01 - 08/31/02 $337,380.15 $28,115.01
09/01/02 - 08/31/03 $347,501.55 $28,958.46
6. All other terms and conditions of the Lease Agreement dated July 16, 1993
remain unchanged.
6
IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment 1 to
Lease Agreement dated July 16, 1993 and affixed their seals as of the date
first above written.
Landlord: Tenant:
10089 Management, L.L.C. Advanced Communication Systems. Inc.
by: [SIG] by: [SIG]
-------------------------- ---------------------------
7
EXHIBIT A
FLOOR PLANS
10089 XXX HIGHWAY
[FLOOR PLAN]
First Floor Plan
[FLOOR PLAN]
Second Floor Plan
8
================================================================================
10089 MANAGEMENT, L.L.C.
Landlord
and
ADVANCED COMMUNICATION SYSTEMS, INC.
Tenant
-----------------------
LEASE TO PREMISES
Dated: July 16, 1993
================================================================================
9
TABLE OF CONTENTS
Title Section Page
----- ------- ----
Alterations............................ 4 6
Assignment, Subletting and Recapture... 3 5
Care of Premises....................... 2 4
Casualty............................... 17 20
Certain Rights Reserved to Landlord.... 9 11
Condition of Premises.................. 21 25
Default................................ 14 14
Eminent Domain......................... 16 19
Estoppel Certificates.................. 28 30
Exculpation............................ 27 30
Governing Laws......................... 29 31
Holding Over........................... 11 13
Insurance.............................. 26 29
Landlord's Title....................... 8 11
Mechanics' Liens....................... 15 19
Miscellaneous.......................... 25 27
Notice................................. 7 10
Operating Expenses..................... 19 22
Parties................................ * 1
Possession............................. 23 27
Premises............................... * 1
Quiet Enjoyment........................ 24 27
10
Title Section Page
----- ------- ----
Real Estate Taxes...................... 20 23
Rent................................... 1 2
Rules.................................. 12 14
Save Harmless.......................... 22 26
Services and Utilities................. 6 9
Signs.................................. 5 8
Subordination.......................... 13 14
Term................................... * 2
Use.................................... * 1
Waiver of Claims....................... 10 12
Waiver of Subrogation.................. 18 22
Exhibit A - Floor Plan
11
LEASE
Parties This Lease, made the 16th day of July, 1993, between
10089 MANAGEMENT, L.L.C., a Virginia limited
liability company, hereinafter called the Landlord,
and ADVANCED COMMUNICATION SYSTEMS, INC., a Delaware
corporation, hereinafter called the Tenant.
W I T N E S S E T H
Premises That the Landlord hereby leases to the Tenant, and
the Tenant hereby hires and takes from the Landlord
the following described premises (hereinafter called
the "premises") outlined on Exhibit A hereto and made
a part hereof, in the office and retail tower
(hereinafter called the "building") known as 00000
Xxx Xxxxxxx, Xxxxxxx, Xxxxxxxx, containing an agreed
to total rentable area of 16,980 square feet on the
3rd and 4th floors. The building and the land on
which the improvements are located are sometimes
hereinafter called the "project." This Lease
includes the right of the Tenant to use the Common
building Facilities (as defined below) in common with
other tenants in the building. The term "Common
building Facilities" shall mean all of the common
facilities in or around the building designed and
intended for use by all tenants in the building in
common with the Landlord and each other, including
but not limited to, hallways, elevators, fire stairs,
common area telephone closets, if any, aisles,
walkways, truck docks, common area plazas, if any,
common area courts, if any, common area restrooms, if
any, service areas, lobbies, landscaped areas, and
all other common and service areas of the project and
the building intended for such use.
Use To be used and occupied by the Tenant as office space
and for no other purpose. Without limiting the
generality of the foregoing, the premises shall not
be used as an office for a medical or dental
ractitioner, a political party or political campaign
organization, or any foreign, federal, state or local
governmental entity or agency, or for any unlawful
purpose. Tenant shall not use the premises or any
part thereof for any purpose deemed by the Landlord's
insurer to be extra hazardous on account of fire risk
or
12
that will increase the existing rate of insurance on
the building or cause a cancellation of any insurance
policy covering the building.
Term That this lease is effective as of the date Landlord
acquires the building (the "Commencement Date") and
to end on August 31, 2003; unless sooner terminated
as hereinafter provided.
The parties hereto do hereby agree and covenant as
follows:
Rent 1. (a) Commencing on the Commencement Date and
ending on August 31, 1993, the Tenant shall pay in
advance on the Commencement Date the amount which
equals the product determined by multiplying Six
Hundred Thirteen and 17/100 Dollars ($613.17) by the
number of days in such period;
(b) The Tenant shall pay annual rent, which
annual rent during the first year of this Lease shall
equal $13.00 per square foot of rentable space in the
premises and which shall increase annually by an
amount equal to three precent (3%) of the annual rent
then in effect, all as set forth in the following
schedule, and shall be payable in monthly
installments in advance, on the first day of each
calendar month during the applicable period:
Monthly
Period Annual Rent Rent Payment
------ ----------- ------------
September 1, 1993 - $220,740.00 $18,395.00
August 31, 1994
September 1, 1994 - $227,362.20 $18,946.85
August 31, 1995
September 1, 1995 - $234,183.07 $19,515.26
August 31, 1996
September 1, 1996 - $241,208.56 $20,100.71
August 31, 1997
September 1, 1997 - $248,444.82 $20,703.73
August 31, 1998
September 1, 1998 - $255,898.16 $21,324.85
August 31, 1999
-2-
13
September 1, 1999 - $263,575.10 $21,964.59
August 31, 2000
September 1, 2000 - $271,482.35 $22,623.53
August 31, 2001
September 1, 2001 - $279,626.82 $23,302.24
August 31, 2002
September 1, 2002 - $288,015.62 $24,001.30
August 31, 2003
Rent for any period of less than one month shall
equal 1/30 of the monthly rent payment for each day
of the applicable period.
(c) The Tenant will pay said rent without deduction,
set off or demand to Landlord at 00000 Xxx Xxxxxxx,
Xxxxxxx, Xxxxxxxx, or to such other person or at such
other place as the Landlord may designate in writing.
(c) All payments or installments of any rent
hereunder, other than annual rent, and all sums
whatsoever due under this Lease (including attorneys'
fees) shall be deemed additional rent. Except as is
otherwise provided regarding time periods from which
payments are due, if any rent or additional rent is
not paid within five (5) days after written notice
from Landlord that such sum is due, in consideration
of Landlord's additional expense caused by such
failure to pay, such arrearage shall bear a late
charge equal to five percent (5.0%) of such
arrearage, and such rent or additional rent shall
bear interest at an annual rate of one and one-half
percent above the prime rate of such total amount.
Interest shall accrue on rent or additional rent plus
the late charge from the date such rent or additional
rent is due. Time is of the essence with respect to
Tenant's monetary obligations in this Lease. Any
additional rent, unless otherwise stated, shall be
due within thirty (30) days after Landlord has
submitted a written statement to Tenant showing the
amount due, and such obligation shall survive the
expiration or earlier termination of the term.
-3-
14
Care of 2. (a) The Tenant will take good care of
Premises the premises and the building fixtures and
appurtenances, and all alterations, additions and
improvements to them ordinary wear and tear and
damage by fire or other casualty excepted; will
repair all damage to the same resulting from the acts
of the Tenant, its employees, agents or invitees;
will suffer no waste or injury; will execute and
comply with all laws, rules, orders, ordinances and
regulations, at any time issued or enforced by any
lawful authority, applicable to the Tenant's use or
occupancy of the premises; and will repair, at or
before the end of the term, all injury done by the
installation or removal of furniture and property.
Tenant covenants and agrees that it will not use or
allow the premises to be used for the storage, use,
treatment or disposal of any "hazardous substance,"
as defined under either the Comprehensive
Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. 9601 et. seq.) or as
hereinafter enacted by any applicable federal, state,
county or governmental authority.
(b) At any time or times, the Landlord, either
voluntarily or pursuant to governmental
requirement, may, at the Landlord's own expense, make
repairs, alterations or improvements in or to the
building or any part thereof, including the premises,
and, during operations, may close entrances, doors,
corridors, elevators or other facilities, all without
any liability to the Tenant by reason of
interference, inconvenience or annoyance. The
Landlord shall not be liable to the Tenant for any
expense, injury, loss or damage resulting from work
done in or upon, or the use of, any adjacent or
nearby building, land, street or alley, except as a
result of its gross negligence or willful misconduct.
Notwithstanding anything to the contrary contained in
this Paragraph 2(b) or elsewhere in this Lease, if
the Landlord, its employees, agents or contractors
shall enter the premises to make repairs or for any
purpose permitted herein, during the
-4-
15
Tenant's normal business hours, the Landlord, its
employees, agents or contractors, as the case may be,
shall, except in the event of an emergency, use
commercially reasonable efforts to minimize any
interference with the Tenant's business.
Assignment 3. (a) The Tenant will not sell, assign,
and Subletting mortgage or transfer this Lease, sublet the premises
or any part thereof, or allow any transfer thereof or
any lien upon the Tenant's interest by operation of
law, without the prior written consent of the
Landlord.
(b) Any levy or sale in execution, or any assignment
or sale in bankruptcy or insolvency, or the
appointment of a receiver or trustee of all or
substantially all of the property of the Tenant by a
state or federal court, shall be deemed an assignment
within the meaning of this Section.
(c) Any subletting or assignment hereunder shall not
release or discharge the Tenant of or from any
liability, whether past, present or future, under
this Lease, and the Tenant shall continue fully
liable hereunder and shall also be liable to the
Landlord for all costs incurred by the Landlord at
the request of and for a subtenant or assignee. The
subtenant or subtenants or assignee or assignees
shall agree to comply with and be bound by all the
terms, covenants, conditions, provisions and
agreements of this Lease to the extent of the space
sublet or assigned, and shall not assign the sublease
or sublet the premises or any part thereof, or allow
any transfer thereof, or any lien upon the
subtenant's interest, without the prior written
consent of the Landlord, and the Tenant shall deliver
to the Landlord promptly after execution, an executed
copy of each such sublease or assignment and an
agreement of compliance by each such subtenant or
subtenants or assignee or assignees.
(d) Unless consented to in writing by the Landlord,
any sale, assignment, mortgage,
-5-
16
transfer, or subletting of this Lease which is not in
compliance with the provisions of this Section shall
be of no effect and void.
(e) The Landlord may assign this Lease and shall not
be liable for obligations thereafter accruing
hereunder; provided that the Landlord's assignee
shall assume the Landlord's obligations hereunder
accruing on or after the date of assumption.
Alterations 4. (a) Tenant shall not make or permit anyone to make
any alterations in or additions or improvements to
the premises or install any equipment of any kind
that will require any alteration or addition to, or
the use of, the water, heating, air conditioning or
electrical or other building systems or equipment,
without the Landlord's advance written consent in
each instance to be withheld in Landlord's sole
discretion. All alterations or additions shall be
made only by Landlord's contractors or contractors of
which Tenant has received the prior written approval
from Landlord. The Landlord's decision to refuse
such consent to alterations, additions or contractors
shall be conclusive, and, in cases where if the
Landlord consents to such alterations, additions or
contractors before commencement of the work or
delivery of any materials onto the premises or into
the building, the Tenant shall furnish the Landlord
with plans and specifications, copies of contracts,
necessary permits, and indemnification in form and
amount satisfactory to the Landlord against claims,
costs, damages, liabilities and expenses. All
additions and alterations shall be installed in a
good, workmanlike manner, and only new, high grade
materials which are in accordance with the building
standards shall be used. Landlord shall be paid a
reasonable supervisory fee with respect to additions
and alterations. Tenant hereby agrees to indemnify
and hold the Landlord harmless, irrevocably and
forever, from and against any and all claims, costs,
damages, liabilities and expenses of every kind and
description which
-6-
17
may arise out of or be connected in any way with said
alterations or additions or the installation thereof,
or Tenant's request for consent to requested
alterations or additions, whether or not such consent
is granted. The indemnity obligations of the Tenant
set forth in this Section shall survive the
expiration or earlier termination of this Lease.
Before commencing any work in the premises, the
Tenant shall furnish the Landlord with certificates
of insurance from all contractors performing labor or
furnishing materials insuring the Landlord against
any and all claims, costs, damages, liabilities and
expenses, which may arise out of or be connected in
any way with said additions or alterations or the
installation thereof and a complete set of plans and
specifications with respect to the alteration or
installation. The Tenant shall pay the cost of all
such alterations and additions and also the cost of
decorating the premises occasioned by such
alterations and additions. Upon completing any
alterations or additions, the Tenant shall, within
thirty (30) days thereafter, furnish the Landlord
with contractors' affidavits and full and final
waivers of lien and receipted bills covering all
labor and materials expended and used and a complete
set of as-built plans and specifications. All
alterations and additions shall comply with all
insurance requirements and with all local ordinances
and regulations, and with the requirements of all
statutes and regulations of the State (or of any
department or agency thereof) in which the building
is located. The Tenant shall permit the Landlord to
supervise construction operations in connection
with these alterations or additions if the Landlord
requests to do so. The privilege herein granted to
the Tenant to make alterations or additions to the
premises is conditioned upon the Tenant's
contractors, workmen and employees working in harmony
and not interfering with the workmen, employees and
contractors of the Landlord or of any other tenant.
-7-
18
(b) All alterations, additions, hardware, non-trade
fixtures and all improvements, temporary or
permanent, in or upon the premises, whether placed
there by the Landlord or the Tenant, shall, unless
the Landlord requests their removal, become the
Landlord's property and shall remain upon the
premises at the termination of this Lease by lapse of
time or otherwise without compensation or allowance
or credit to the Tenant. If the Landlord requests
removal of work whether installed by the Landlord or
the Tenant before or after the start of the term, or
if the Landlord requests removal of additions,
alterations, hardware, non-trade fixtures, or
improvements installed or made by the Tenant, the
Tenant shall remove the same prior to the conclusion
of the term and the Tenant shall repair all damage to
the premises caused by such removal. The Tenant
shall not be required to remove pipes and wires
concealed in the floors, walls, or ceilings, provided
that the Tenant properly cuts and caps the same and
seals them off in a safe, lawful, and workmanlike
manner. If, upon the Landlord's request, the Tenant
does not remove said things, the Landlord may remove
the same and repair all damage and the Tenant shall
pay to the Landlord upon demand the cost of such
removal and repair of all damage. The Tenant shall
remove the Tenant's furniture, machinery, safe or
safes, trade fixtures and other items of personal
property of every kind and description from the
premises prior to the end of the term, however ended.
If not so removed, the Landlord may do so and the
Tenant shall pay to the Landlord upon demand the cost
of such removal and repair of all damage. If not
removed by Tenant and the Landlord does not request
their removal, all such items shall be conclusively
presumed to have been conveyed by the Tenant to the
Landlord under this Lease as a xxxx of sale without
further payment or credit by the Landlord to the
Tenant.
Signs 5. The Tenant will not permit or suffer any signs,
logos, symbols, advertisements or notices to be
displayed, inscribed upon or
-8-
19
affixed on any part of the outside or inside (which
are visible from the outside of the premises) of the
premises, or in the building or on the street
adjacent to the building. The Tenant's name shall be
affixed on or near the entrance doors of the
premises, but only in such size, color and style as
the Landlord may approve.
Services 6. (a) The Landlord shall provide the
and Utilities following services and utilities:
(1) JANITOR SERVICE in and about the premises,
Saturdays, Sundays and holidays recognized by the
Landlord excepted. The Tenant shall not provide
any janitor service in the premises except
through a janitor contractor or employees
satisfactory to the Landlord.
(2) HEAT AND AIR CONDITIONING Monday through
Friday from 8:00 a.m. to 6:00 p.m., Saturday from
8:00 a.m. to 1:00 p.m., Sundays and holidays
recognized by the Landlord excepted.
(3) WATER (hot and cold) from municipal mains
for drinking, lavatory and toilet purposes, drawn
through fixtures installed by the Landlord.
(4) ADEQUATE PASSENGER ELEVATOR SERVICE
servicing the floor on which the premises is
located in common with other tenants at all
times. Landlord agrees that the level of
elevator service for the floor on which the
premises is located will be reasonably the same
as that provided to all other tenants in the
building. FREIGHT ELEVATOR SERVICE in common
with other tenants daily from 8:00 a.m. to 5:00
p.m., Saturdays, Sundays and holidays recognized
by the Landlord excepted ("Building Standard
Hours"), subject to scheduling by the Landlord.
Freight elevator service at other times and
elevators with attendants shall be optional with
the Landlord and, if
-9-
20
provided, shall be at the Tenant's expense and
never be deemed a continuing obligation of the
Landlord.
(5) TELEPHONE SERVICE to the building.
(6) MAINTENANCE of the roof, exterior and
common areas of the building.
(7) ELECTRICITY for Tenant's uses for normal
modern office use including personal computers,
word processors, desktop office equipment, and
operating the HVAC.
(b) Tenant shall have access to the building and the
premises 24 hours per day, 7 days per week, 52 weeks
per year. The Landlord does not warrant that any of
the services above mentioned will be free from
interruption caused by war, insurrection, civil
commotion, riots, acts of God or the enemy or
governmental action, repairs, renewals, improvements,
alterations, strikes, lockouts, picketing, whether
legal or illegal, accidents, inability of the
Landlord to obtain fuel or supplies, or any other
cause or causes beyond the reasonable control of the
Landlord. Except in the case of an emergency, the
Landlord will give the Tenant 24 hours prior notice
if Landlord intends to interrupt any services. Any
such interruption of service shall never be deemed an
eviction or disturbance of the Tenant's use and
possession of the premises or any part thereof, or
render the Landlord liable to the Tenant for damages,
or relieve the Tenant from performance of the
Tenant's obligations under this Lease.
Notice 7. Any notice, request, communication or demand under
the Lease shall be in writing and shall be considered
properly delivered when addressed as hereinafter
provided, (a) given or served personally, (b) by
nationally recognized overnight courier, or (c) by
registered or certified mail (return receipt
requested), 3 days after the date deposited in the
United States general or branch post office. Any
notice, request, communication
-10-
21
or demand by the Landlord to the Tenant shall be
addressed to the Tenant at the premises until
otherwise directed in writing by the Tenant. Any
notice, request, communication or demand by the
Tenant to the Landlord shall be addressed to the
Landlord at the building. Rejection or other refusal
to accept a notice, request, communication or demand
or the inability to deliver the same because of a
changed address of which no notice was given shall be
deemed to be receipt of the notice, request, communi-
cation or demand sent.
Landlord's 8. The Landlord's title is and always shall be
Title paramount to the title of the Tenant, and nothing
herein contained shall empower the Tenant to do any
act which shall encumber the title of the Landlord.
Certain 9. (a) The Landlord reserves the following
Rights rights:
Reserved
to Landlord (1) To change the name or street address of the
building after at least 60 days prior notice,
without liability of the Landlord to the Tenant.
(2) To install and maintain a sign or signs on
the exterior of the building in keeping with the
appearance of a first-class office building as
reasonably determined by Landlord.
(3) During the last ninety (90) days of the
term, if during or prior to that time the Tenant
vacates the premises, to decorate, remodel,
repair, alter or otherwise prepare the premises
for reoccupancy.
(4) To constantly have pass keys to the
premises.
(5) To exhibit the premises to prospective
lenders, investors and purchasers at all times,
and during the last 9 months of the term to
prospective tenants and others.
-11-
22
(6) To take any and all measures, including
inspections, repairs, alterations, additions and
improvements to the premises or to the building,
as may be necessary or desirable for the safety,
protection or preservation of the premises or the
building or the Landlord's interests, or as may
be necessary or desirable in the operation of the
building.
(b) Except as otherwise provided in this Lease, the
Landlord may enter upon the premises and may exercise
any or all of the foregoing rights hereby reserved
without being deemed guilty of an eviction or
disturbance of the Tenant's use or possession and
without being liable in any manner to the Tenant.
The Landlord agrees, however, that it shall endeavor
to perform all repairs, improvements and maintenance
and execute its right of access in a manner which is
not intended to materially, adversely, and
unreasonably and permanently interfere with the
Tenant's use of the premises.
Waiver 10. To the extent permitted by law and except as
of Claims a result of the negligence of the cleaning people
provided by Landlord or gross negligence or willful
misconduct of Landlord or the Landlord's agents,
servants or employees, or the Landlord's building
manager or its agents, servants or employees, except
as relating to cleaning people as aforesaid, the
Tenant releases the Landlord and the Landlord's
agents, servants and employees, and the Landlord's
building manager of the building, and its agents,
servants and employees from, and waives all claims
for, damage to person or property sustained by the
Tenant or any occupant of the building or premises
resulting from the building or premises or any part
of either or any equipment becoming out of repair, or
resulting from any accident in or about the building,
or resulting directly from any act or neglect of any
tenant or occupant of the building or of any other
person, including the Landlord and the Landlord's
agents, servants and employees, and the Landlord's
-12-
23
building manager of the building, and its agents,
servants and employees. This Section 10 shall apply
especially, but not exclusively, to the flooding of
basements or other subsurface areas, and to damage
caused by refrigerators, sprinkling devices, air
conditioning apparatus, water, snow, frost, steam,
excessive heat or cold, falling plaster, broken
glass, sewage, gas, odors or noise, or the bursting
or leaking of pipes or plumbing fixtures, and shall
apply equally whether any such damage results from
the act or neglect of the Landlord or of other
tenants, occupants or servants in the building or of
any other person, and whether such damage be caused
or results from any thing or circumstance above
mentioned or referred to, or any other thing or
circum- stance whether of a like nature or of a
wholly different nature. If any such damage, whether
to the premises or to the building or any part
thereof, or whether to the Landlord or to other
tenants in the building, results from any act or
neglect of the Tenant, the Landlord may, at the
Landlord's option, repair such damage and the Tenant
shall upon demand by the Landlord, reimburse the
Landlord forthwith for the total cost of such
repairs. The Tenant shall not be liable for any
damages caused by its act or neglect to the extent
the Landlord has recovered the amount of the damages
from insurance, and the insurance company has waived
in writing its rights of subrogation against the
Tenant. All property belonging to the Tenant or any
occupant of the premises that is in the building or
the premises shall be there at the risk of the Tenant
or other occupant only, and the Landlord shall not be
liable for damages thereto or theft or
misappropriation thereof.
Holding 11. If the Tenant retains possession of the
Over premises or any part thereof after the termination of
the term, by lapse of time or otherwise, the Tenant
shall pay the Landlord rent at double the rate of
rental specified in this Lease for the time the
Tenant thus remains in possession, and in addition
thereto and if Landlord has not expressly
-13-
24
consented thereto in writing, shall pay the Landlord
all damages sustained by reason of the Tenant's
retention of possession. The provisions of this
Section do not waive the Landlord's rights of reentry
or any other right hereunder.
Rules 12. The Tenant shall observe faithfully and comply
strictly with the rules and regulations promulgated
from time to time by the Landlord.
Subordination 13. This Lease shall be subordinate and subject at all
times to all ground or underlying leases and to any
mortgage or deed of trust covering the premises or
which at any time hereafter shall be made, and to all
renewals, modifications, consolidations, or
replacements thereof, and to all advances made, or
hereafter to be made, upon the security of any such
mortgage or deed of trust. Tenant shall execute such
further instruments subordinating this Lease to any
such mortgage or deed of trust as the Landlord shall
request, provided that the holder of such mortgage or
deed of trust executes an attornment and
nondisturbance agreement providing that Tenant's
rights under this Lease will not be disturbed by such
holder so long as Tenant performs its obligations
pursuant to this Lease.
Default 14. All rights and remedies of the Landlord herein
enumerated shall be cumulative, and none shall
exclude any other right or remedy allowed by law or
equity.
(a) The occurrence of any one or more of the
following events shall constitute a default by the
Tenant and a breach of this Lease: (i) the Tenant
fails to make a payment of rent or any other payment
of money as and when the same shall become due and
payable hereunder and such failure continues for five
(5) days after written notice from the Landlord, or
(ii) the Tenant fails to promptly and fully perform
or observe any of the other covenants, agreements,
rules and regulations, terms or conditions in this
Lease to be performed or observed by the Tenant and
such failure shall continue for
-14-
25
more than twenty (20) consecutive days after notice
by the Landlord specifying the nature of such
failure, or if the failure so specified shall be of
such a nature that the same cannot be reasonably
cured or remedied within said twenty (20) day period,
the Tenant shall not in good faith have commenced to
cure or remedy such failure within such twenty (20)
day period and thereafter diligently proceed
therewith to completion, (unless the act or omission
of the Tenant or occurrence involves a hazardous or
emergency condition which shall be cured by the
Tenant forthwith upon the Landlord's demand), or
(iii) the leasehold interest or property of the
Tenant be levied upon under execution or be attached
by process of law, or (iv) the Tenant makes an
assignment for the benefit of creditors, or a
receiver be appointed for any property of the Tenant,
or at any time prior to or during the term of this
Lease any voluntary or involuntary petition or
similar pleading under any section or sections of any
bankruptcy law shall be filed by or against the
Tenant, or any voluntary or involuntary proceeding in
any court or tribunal shall be instituted to declare
the Tenant insolvent or unable to pay the Tenant's
debts, and in the case of any involuntary petition or
proceeding, the petition or proceeding is not
dismissed within sixty (60) consecutive days from the
date it is filed.
(b) In the event of any default of the Tenant
hereunder, and at any time thereafter, (i) if the
term of this Lease shall not have commenced, the
Landlord may cancel and terminate this Lease by
notice to the Tenant, or (ii) if the term of this
Lease shall have commenced, the Landlord may serve
upon the Tenant a notice that this Lease and the term
hereof will terminate on a date to be specified
therein, and upon the date so specified by the
Landlord in such notice, this Lease and the then
unexpired term hereof shall terminate and come to an
end as fully and completely as if the date specified
in the Landlord's notice was the day herein
definitely fixed for the end and expiration of this
Lease and the term
-15-
26
hereof, and the Tenant shall then quit and surrender
the premises to the Landlord, but the Tenant shall
remain liable as hereinafter set forth; provided,
however, that if the Tenant shall fail to perform a
covenant of this Lease two (2) or more times in any
period of six (6) months then, notwithstanding that
each act or omission shall have been cured within the
period after the giving of notices as herein
provided, any further similar act or omission shall
be deemed to be deliberate and the Landlord
thereafter may serve the aforesaid notice of
termination without affording to the Tenant a further
opportunity to cure.
(c) Upon termination of this Lease by the Landlord
as hereinabove provided, or if the premises become
vacated or deserted for a period of more than ninety
(90) consecutive days, with or without terminating
the Lease, the Landlord may, without notice,
terminate all services and re-enter the premises
either by force or otherwise, and by summary
proceedings or otherwise, dispossess the Tenant and
the legal representatives of the Tenant or any other
occupant of the premises, and remove their effects
without being deemed in any manner guilty of
trespass, eviction, or forceable detainer, and hold
the premises as if this lease had not been made.
(d) In the event of default, re-entry, termination
and/or dispossess by summary proceedings or
otherwise, (i) the Landlord shall in addition to any
other rights granted herein or by law, be entitled to
recover all rent, additional rent and other sums due
and payable by the Tenant up to and including the
date of re-entry, dispossess and/or termination, and
(ii) with or without terminating the Lease, and
without releasing the Tenant, in whole or in part,
from the Tenant's obligations to pay the rent
hereunder for the full term or from any other of its
obligations under this Lease or for damages herein
described the Landlord may, at the Landlord's option,
occupy the premises and/or cause the premises to be
-16-
27
redecorated, altered, divided, consolidated with
other adjoining premises, or otherwise changed or
prepared for reletting, and shall use commercially
reasonable efforts to relet the premises or any part
thereof for the account of the Tenant for a term or
terms to expire prior to, at the same time as, or
subsequent to, the original expiration date of this
Lease, and receive the rent therefor, applying the
same first to the payment of such expenses as the
Landlord may have incurred in connection with the
recovery of possession, redecorating, altering,
dividing, consolidating with other adjoining
premises, or otherwise changing or preparing for
reletting, and the reletting, including brokerage and
reasonable attorneys' fees, and then to the payment
of damages in amounts equal to the rent hereunder and
to the cost and expense of performance of the other
covenants of the Tenant as herein provided. The
Tenant agrees, whether or not the Landlord has relet,
to pay to the Landlord damages equal to the rent and
other sums herein agreed to be paid by the Tenant,
less the net proceeds of the reletting, if any, as
ascertained from time to time, and the same shall be
payable by the Tenant on the several rent days above
specified. In reletting the premises as aforesaid,
the Landlord may grant rent concessions, and the
Tenant shall not be credited therewith. No such
reletting shall constitute a surrender and acceptance
of the premises or be deemed evidence thereof. If
the Landlord elects, pursuant hereto, actually to
occupy and use the premises (for a purpose other than
to achieve a reletting of the premises), or any part
thereof, during any part of the balance of the term,
as originally fixed or since extended, there shall be
allowed against the Tenant's obligation for rent, or
damages as herein defined, during the period of the
Landlord's occupancy, the reasonable value of such
occupancy, not to exceed in any event the rent herein
reserved and such occupancy shall not be construed as
a release of the Tenant's liability hereunder.
-17-
28
(e) Any and all property which may be removed from
the premises by the Landlord pursuant to the
authority of this Lease or of law, to which the
Tenant is or may be entitled, may be handled, removed
or stored by the Landlord at the risk, cost and
expense of the Tenant, and the Landlord shall in no
event be responsible for the value, preservation or
safekeeping thereof. The Tenant shall pay to the
Landlord upon demand any and all reasonable expenses
incurred in such removal and all storage charges
against such property so long as the same shall be in
the Landlord's possession or under the Landlord's
control. Any such property of the Tenant not removed
from the premises or taken from storage by the Tenant
within thirty (30) days after the end of the term,
however terminated, shall be presumed to have been
conveyed by the Tenant to the Landlord under this
Lease as a xxxx of sale without further payment or
credit by the Landlord to the Tenant.
(f) The Tenant shall pay upon demand all of the
Landlord's reasonable costs, charges and expenses,
including the reasonable fees of counsel, agents and
others retained by the Landlord, incurred in
enforcing or carrying out the Tenant's obligations
hereunder after default by the Tenant and any
applicable notice and cure periods having expired or
incurred by the Landlord in any litigation,
negotiations or transactions in which Tenant causes
the Landlord, without the Landlord's fault, to become
involved or concerned, plus interest from the date of
payment at the annual rate of one and one-half
percent above the prime rate, which amount shall be
deemed to be additional rent due and payable by the
Tenant at once without notice or demand.
(g) Tenant hereby waives all rights of redemption
granted by or under any present or future laws.
(h) Mention in the lease of any particular remedy
shall not preclude the Landlord from pursuing any
other remedy in law or in equity.
-18-
29
(i) The delivery of keys to any agent or employee of
the Landlord shall not be considered as a termination
of this Lease or a surrender of the premises.
(j) The Landlord and the Tenant hereby waive trial
by jury in any action, proceeding or counterclaim
brought by either of them against the other on any
matters arising out of or in any way connected with
this Lease, the relationship of the Landlord and the
Tenant, the Tenant's use or occupancy of the
premises, or any emergency statutory remedy. The
Tenant further agrees that it shall not interpose any
counterclaim or counterclaims in a summary proceeding
or in any action based on nonpayment of rent or any
other payment required of the Tenant hereunder,
unless the failure to assert such counterclaim would
foreclose the Tenant's right to commence a separate
action or proceeding.
Mechanics' 15. The Tenant shall not permit any mechanics'
Liens or materialmen's liens to be filed against the fee of
the real property on which the building is located
nor against the Tenant's leasehold interest in the
premises. The Landlord shall have the right at all
reasonable times to post and keep posted on the
premises, any notices which it deems necessary for
protection from such liens. If any such liens are so
filed, the Landlord, at its election, unless the
Tenant has theretofore bonded over such lien as
provided by applicable law or otherwise provides
security, as may be reasonably adequate, for the
protection of Landlord's interest, may pay and
satisfy the same and in such event the sums so paid
by the Landlord, with interest from the date of
payment at the annual rate of one and one-half
percent above the prime rate, shall be deemed to be
additional rent due and payable by the Tenant at once
without notice or demand.
Eminent 16. (a) In the event that the whole or any part
Domain of the premises shall be lawfully condemned or taken
in any manner for any public or quasi-public use, at
the Landlord's option,
-19-
30
this Lease and the term hereby granted shall
forthwith cease and terminate on the date of the
taking of possession by the condemning authority and
the Landlord shall be entitled to receive the entire
award without any payment to the Tenant, the Tenant
hereby assigning to the Landlord the Tenant's
interest in the award, if any, and the rent shall be
apportioned as of such date; provided, however, the
Tenant shall have the right to assert any claim that
it may have against the condemning authority for
compensation for any fixtures and property owned by
the Tenant and leasehold improvements installed by
the Tenant at Tenant's expense and for any relocation
expenses compensable by law and receive such award
therefor as may be allowed in the condemnation
proceedings if such award shall be stated separately
from the award made for the project or the part
thereof so taken.
(b) In the event that a part of the building shall
be so condemned or taken and, if, in the opinion of
the Landlord, the building should be restored in such
a way as to alter the premises materially, or the
building should be demolished, the Landlord may
terminate this Lease and the term and estate hereby
granted without compensation to the Tenant by
notifying the Tenant of such termination within sixty
(60) days following the date of the taking of
possession by the condemning authority, and this
Lease and the term and estate hereby granted shall
expire on the date specified in the notice of
termination not less than sixty (60) days after the
giving of such notice, as fully and completely as if
such date were the date hereinbefore set for the
expiration of the term of this Lease, and the rent
shall be apportioned as of such date.
Casualty 17. In the event of damage or destruction of the premises
during the term by fire, the elements, or casualty,
the Landlord shall forthwith repair the same,
provided such repairs can be made, in the Landlord's
opinion, within one hundred twenty (120)
-20-
31
days, but such damage or destruction shall not annul
or void this Lease, except that the Tenant shall be
entitled to a proportionate reduction of rent while
such repairs are being made, such proportionate
reduction to be based upon the extent that the
premises, or part thereof, may be untenantable
(including as a result of lack of access to the
premises). As used herein, the term "untenantable"
shall include a situation in which the premises are
not reasonably accessible for the conduct of the
Tenant's business. If, in the Landlord's reasonable
opinion, such repairs cannot be made within one
hundred twenty (120) days the Landlord may, at its
option to be exercised within thirty (30) days from
the date of such damage or destruction make the same
as soon as possible thereafter, and this Lease shall
continue in full force and effect and the rent shall
be proportionately reduced as aforesaid. In the
event that the Landlord does not so elect to make
such repairs which cannot be made within said one
hundred twenty (120) day period, this Lease may be
terminated at the option of either party. In the
event that the building be damaged, this Lease shall
continue in full force and effect, but the Landlord
shall forthwith repair such damage; except that if
the building is severely damaged or destroyed, as
determined by the Landlord, the Landlord, at its
option to be exercised within thirty (30) days from
the date of such damage or destruction, may terminate
this Lease. The Tenant shall be entitled to a
proportionate reduction of rent only if the premises
are untenantable as aforesaid and no such rent
reduction shall be allowed by reason of
inconvenience, annoyance or injury to the Tenant's
business because of such damage or destruction, or
the necessity of repairing any portion of the
building, or making of such repairs, and the Landlord
shall not be liable to the Tenant because of such
inconvenience, annoyance or injury; provided, that if
the Tenant is unable to conduct its business in the
premises, then the rent and additional rent shall be
abated until the earlier occur of (i) the premises
-21-
32
are repaired, or (ii) the Tenant is able to resume
conducting business in the premises. Notwithstanding
anything herein to the contrary, to the extent
insurance proceeds are not available, Landlord shall
not be obligated to repair the premises or any
portion of the building. Notwithstanding anything to
the contrary in this Lease, if damage or destruction
renders the premises untenantable, so as to prevent
Tenant from conducting his business therefrom and is
not repaired, or repairable, within 180 days from the
date of the casualty, then Tenant shall have the
right, exercisable by notice to Landlord within 210
days from the date of such casualty (but not after
the premises have been made tenantable) to terminate
this Lease.
Waiver of 18. Each party hereto hereby waives all claims
Subrogation for recovery from the other party for any loss or
damage to any of its property insured under valid and
collectible insurance policies. Such insurance
policies shall be endorsed to provide coverage for
said waivers of subrogation.
Operating 19. (a) Except as may otherwise be specifically
Expenses set forth herein and subject to the provisions of
Section 20, Tenant shall have no obligation to pay to
Landlord, any amounts with respect to Operating
Expenses.
(b) For the purposes of this Section 19:
(1) The term "Operating Expenses" means those
expenses incurred in respect of the operation and
maintenance of the building, including premiums
for insurance, personal property taxes in
connection with property used in the operation or
management of the building, utilities used in the
maintenance and operation of the building,
expenses of a management office in the building
for Landlord's building manager and the net cost
of operating the amenities of the building.
-22-
33
Real Estate 20. (a) In addition to the annual rent
Taxes described in Section 1, Tenant hereby agrees to pay
to Landlord, as additional rent, an amount for each
Comparison Year equal to the Tenant's "Pro Rata
Share" of any increase for such Comparison Year in
the amount of Real Estate Taxes over the Base Amount
thereof.
(b) For the purposes of this Section 20:
(1) The term "Base Amount" means the Real Estate
Taxes for the 1993 calendar year. The Base
Amount shall be adjusted proportionately for
Comparison Years which are not a full twelve (12)
months.
(2) The term "Real Estate Taxes" means all taxes
and assessments, special or otherwise, levied
upon or with respect to the building and the land
upon which it is located (with the land
assessment being allocated based upon the
relative value of the project improvements)
imposed by Federal, State or local governments,
(but shall not include income, franchise, capital
stock, estate or inheritance taxes, except as
provided below) and use or occupancy taxes, and
excise and other taxes (other than general income
taxes) on rent and other income from the
building, (computed, in case of a graduated tax,
as if the Landlord's income from the building
were the Landlord's sole taxable income), and any
substitutions for Real Estate Taxes. In the case
of special taxes and assessments payable in
installments only the amount of each installment
due and payable during a fiscal year shall be
included in Real Estate Taxes for that year.
Notwithstanding the foregoing, the term "Real
Estate Taxes" shall not include any income,
franchise, transfer, inheritance, capital stock
or other tax unless, due to a future change in
the method of taxation, such a tax shall be
levied against the Landlord in substitution for
or in lieu of any tax which would otherwise
constitute "Real Estate
-23-
34
Taxes", in which event such income, franchise,
transfer, inheritance, capital stock or other tax
shall be deemed to be included in the term "Real
Estate Taxes" to the extent and only to that
extent that such tax is ascertained to be in lieu
of or a substitute for what were previously "Real
Estate Taxes"; provided, that the amount of such
income, franchise, transfer, inheritance, capital
stock or other tax deemed to be included in the
term "Real Estate Taxes" shall be determined as
if the project was the only asset of the Landlord
and as if the rent paid hereunder were the only
income of the Landlord.
(3) The term "Pro Rata Share" in reference to
Real Estate Taxes means the ratio which the
rentable square footage of the premises bears to
the rentable square footage of the building.
(4) The term "Comparison Year" in reference to
Real Estate Taxes means each calendar year or
portion thereof during the term, commencing with
the 1994 calendar year.
(c) If by reason of complaint against valuation,
protest of tax rates, or otherwise, Real Estate Taxes
for any year are affected in such a way as would
result in a rent increase or decrease hereunder, the
Real Estate Taxes for the affected year shall be
recalculated accordingly and the resulting increase
or decrease in rent, less the reasonable expenses
incurred in effecting any such reduction, shall be
paid simultaneously with or applied as a credit
against the rent next becoming due.
(d) Statements of the amount of the Tenant's Pro
Rata Share of increase in Real Estate Taxes shall be
rendered by the Landlord to the Tenant as soon as
reasonably feasible for each Comparison Year. On the
first day for the payment of monthly rent under this
Lease following the furnishing of a statement for the
current Comparison Year
-24-
35
(1) the Tenant shall pay to the Landlord a sum equal
to one twelfth of the increase in Tenant's estimated
Pro Rata Share of Real Estate Taxes multiplied by the
number of months elapsed during the Comparison Year
and, in advance, one-twelfth of such increase in the
estimated share in respect to the then current month;
and (2) thereafter, until the next Comparison Year
statement shall be rendered, the monthly installments
of rent payable under this Lease shall include an
amount equal to one-twelfth of the Tenant's estimated
share of the increase in Real Estate Taxes based on
the most recent statement.
(e) After Landlord's receipt of tax bills for each
tax year, or such reasonable (in Landlord's
determination) time thereafter, Landlord will certify
to Tenant the amount of the increase in Real Estate
Taxes for the tax year in question and the amount of
Tenant's Pro Rata Share thereof. Tenant's Pro Rata
Share of such increase in Real Estate Taxes which are
paid or payable for each tax year shall be adjusted
between Landlord and Tenant, both Landlord and Tenant
hereby agreeing that Tenant shall pay Landlord or
Landlord shall credit to Tenant's account (or, if
such adjustment is at the end of the Lease term, pay
Tenant), as the case may be, within thirty (30) days
of the aforesaid certification to Tenant, such amount
necessary to effect such adjustment. The failure of
Landlord to provide such certification within the
time prescribed above shall not relieve Tenant of its
obligations generally or for the specific tax year in
which any such failure occurs.
Condition 21. The Tenant's taking possession shall be
of Premises conclusive evidence as against the Tenant that the
premises were in good order and satisfactory
condition when the Tenant took possession. At the
termination of this Lease, by lapse of time or
otherwise, the Tenant shall return the premises in as
good condition as when the Tenant took possession,
ordinary wear and loss by fire or other casualty
insured under valid and
-25-
36
collectible fire and standard extended coverage
insurance policies excepted, failing which the
Landlord may restore the premises to such condition
and the Tenant shall pay the cost thereof and this
obligation shall survive the expiration or earlier
termination of this Lease.
Save 22. The Tenant agrees to indemnify and save
Harmless harmless the Landlord, the Landlord's building
manager and Landlord's other employees and agents
against and from any and all claims by or on behalf
of any person or persons, firm or firms, corporation
or corporations, arising from the Tenant's use of the
premises or the conduct of its business or from any
activity, work, or thing done, permitted or suffered
by the Tenant, in or about the premises, (or any
parking lot or structure, if applicable) and will
further indemnify and save the Landlord, the
Landlord's building manager and Landlord's other
employees and agents harmless, irrevocably and
forever, against and from any and all claims arising
from any breach or default on the Tenant's part in
the performance or observance of any covenant or
agreement on the Tenant's part to be performed or
observed pursuant to the terms of this Lease, or
arising from any act or negligence of the Tenant, or
any of its agents, contractors, servants, employees
or licensees, and from and against all costs, counsel
fees, expenses and liabilities incurred in connection
with any such claim or action or proceeding brought
thereon; and in case any action or proceeding be
brought against the Landlord, the Landlord's building
manager or Landlord's other employees and agents by
reason of any such claim, the Tenant upon notice from
the Landlord covenants to resist or defend at the
Tenant's expense such action or proceeding by counsel
reasonably satisfactory to the Landlord. The
liability of the Tenant to indemnify the Landlord, as
hereinabove set forth, shall not extend to any matter
against which the Landlord shall be effectively
protected by insurance, provided, however, that if
any such liability shall exceed the amount of the
-26-
37
effective and collectible insurance in question, the
said liability of the Tenant shall apply to such
excess. The indemnity obligations of the Tenant set
forth in this Section shall survive the expiration or
earlier termination of this Lease.
Possession 23. In the event of the failure of the Landlord to
deliver possession of the premises at the time of the
commencement of the term of this Lease, neither the
Landlord nor its contractors, subcontractors,
employees, agents or building manager shall be liable
for any damage caused thereby, nor shall this Lease
thereby become void or voidable, nor shall the term
herein specified be in any way extended, but in such
event the term shall begin when the Landlord does
deliver possession of the premises and the Tenant
shall not be liable for any rent until the time that
the Landlord delivers such possession.
Quiet 24. The Landlord covenants and agrees that
Enjoyment the Tenant on paying the rent, including additional
rent, and performing and observing the covenants on
the Tenant's part to be performed and observed
hereunder, shall and may peaceably and quietly hold
and enjoy the premises for the term of this Lease
without disturbance from Landlord or anyone claiming
through or under Landlord, subject to the provisions
of this Lease.
Miscellaneous 25. (a) No receipt of money by the Landlord from the
Tenant after the termination of this Lease or after
the service of any notice or after the commencement
of any suit, or after final judgment for possession
of the premises shall renew, reinstate, continue or
extend the term of this Lease or affect any such
notice, demand or suit.
(b) No waiver of any default of the Tenant hereunder
shall be implied from any omission by the Landlord to
take any action on account of such default if such
default persists or be repeated, and no express
waiver shall affect any default other than the
default specified in a written waiver and then only
for the time and to the
-27-
38
extent therein stated. The invalidity or
unenforceability of any provision hereof shall not
affect or impair any other provision and the invalid
or unenforceable provision shall be deemed restated
to comply with local law.
(c) The word "Tenant" wherever used in this Lease
shall be construed to mean Tenants in all cases where
there is more than one tenant, and the necessary
grammatical changes required to make the provisions
hereof apply either to corporations or individuals,
men or women, shall in all cases be assumed as though
in each case fully expressed.
(d) Provisions inserted herein or affixed hereto
shall not be valid unless appearing in the duplicate
original hereof held by the Landlord.
(e) Each provision hereof shall extend to and shall,
as the case may require, bind and inure to the
benefit of the Landlord and the Tenant and their
respective heirs, legal representatives, successors,
and assigns in the event this Lease has been assigned
with the written consent of the Landlord.
(f) The headings of sections are for convenience
only and do not limit or construe the contents of the
sections.
(g) Submission of this instrument for examination
does not constitute a reservation of or option for
the premises. The instrument becomes effective as a
lease upon execution and delivery by both the
Landlord and the Tenant.
(h) All amounts (other than annual rent and
escalation payments) owed by the Tenant to the
Landlord hereunder shall be paid within fifteen (15)
days from the date the Landlord renders statements of
account therefor and all such amounts, as well as
rent and additional rent, as set forth in Section
1(c), shall bear interest from their respective due
date until paid at the annual rate of one and
one-half percent above the
-28-
39
prime rate. All such amounts other than annual rent
shall be deemed additional rent or rents.
(i) The Tenant may occupy the premises prior to the
commencement of the term of this Lease with the
Landlord's written consent, and in such case all the
provisions of this Lease shall be in full force and
effect as soon as the Tenant occupies the premises,
and the Tenant shall pay rent for the period prior to
the stated commencement of the term at the rate per
month set forth herein. Notwithstanding the
foregoing, Tenant shall have two (2) days free of
base rent and additional rent to move into the
premises.
(j) For purposes of this Lease, the "prime rate"
shall be the prime rate of interest established from
time to time by First Union Bank of Virginia,
provided that, if First Union Bank of Virginia is no
longer in existence or no longer establishes a prime
rate of interest, such rate shall be the highest rate
published by The Wall Street Journal in its Money
Rates section, or a comparable index selected by
Landlord and approved by Tenant, such approval not to
be unreasonably delayed, conditioned or withheld.
Insurance 26. (a) At all times during the term of this Lease, the
Tenant, at its sole cost and expense, shall provide
and keep in full force and effect a policy of public
liability and property damage insurance, naming the
Landlord (including its partners known to Tenant) and
the building manager as an additional insured, with
respect to the premises and the business of the
Tenant in, on, within, from or connected with the
premises, pursuant to which the limits of liability
shall be at least $1,000,000.00 in respect to
injuries to or death of any one person, $1,000,000.00
in respect to any one occurrence, and $500,000.00 in
respect to destruction or damage to property or in
such other reasonable amounts as the Landlord shall
require. Said insurance shall cover all of Tenant's
property to be located on
-29-
40
the premises. Said insurance policies shall contain
a clause that the insurer will not cancel or modify
the insurance to adversely affect the Landlord
without first giving the Landlord thirty (30) days
prior written notice. Said insurance policies shall
be carried with an insurance company licensed to do
business in Virginia and having a current Best's
Guide rating of A/VII or better, and a certificate of
insurance shall be delivered to the Landlord on the
Commencement Date of this Lease and upon renewal of
each of said policies.
(b) The Tenant shall not take out separate insurance
concurrent in form or contributing in the event of
loss with that required in this Section to be
furnished by the Tenant.
(c) If at any time the Tenant does not comply with
the covenants made in this Section, the Landlord may,
at its option, (without prejudice to any other remedy
it might have) cause insurance as aforesaid to be
issued, and in such event the Tenant shall pay the
premium for such insurance as additional rent
promptly upon the Landlord's demand therefor.
(d) Landlord agrees to maintain insurance on the
building in such amounts and types as Landlord's
mortgagee shall require, the cost of which shall be
an Operating Expense.
Exculpation 27. It is understood that the Landlord on the date of
execution hereof is a Virginia limited liability
company and that no owner of said company, as it may
now or hereafter be constituted, shall have any
personal liability to the Tenant or any person
claiming under, by or through the Tenant upon any
action, claim, suit or demand brought pursuant to the
terms and conditions of this Lease or arising out of
the occupancy by the Tenant of the premises.
Estoppel 28. The Tenant agrees at any time and from time
Certificates to time upon not less than ten (10) days prior
written notice by Landlord or the holder of any
mortgage or security interest in all or any part of
the building to
-30-
41
execute, acknowledge and deliver to Landlord or such
holder, as the case may be, a statement in writing in
such form as Landlord or the holder of any mortgage
or security interest in all or any part of the
building may require, certifying among other things
(i) whether the Tenant is in possession of the
premises and conducting business with the public
thereof from and specifying the date of the
commencement of such possession, (ii) whether all
required contributions by Landlord to Tenant, or
improvements to the premises, have been made, (iii)
the amount of any security deposit paid by Tenant,
(iv) the actual date of commencement and termination
of the term, (v) that this Lease is unmodified and in
full force (or if there have been modifications, that
the same in full force and effect as modified and
stating the modifications), (vi) the dates to which
the rent and other charges have been paid in advance,
if any, and (vii) whether or not to the best
knowledge of the signer of such a certificate
Landlord is in default in performance of any
covenant, agreement or condition contained in this
Lease and, if so, specifying each such default of
which the signer may have knowledge, it being
intended that any such statement delivered hereunder
may be relied upon by third parties not a party to
this Lease.
Governing 29. This Lease shall be governed by the laws of
Laws the Commonwealth of Virginia.
IN WITNESS WHEREOF, this instrument has been duly executed
by the parties hereto as of the day and year first above written.
WITNESS: 10089 MANAGEMENT, L.L.C.
By: [SIG]
---------------------------------
Manager
WITNESS: ADVANCED COMMUNICATION SYSTEMS, INC.
/s/ XXXXXXXX X. XXXXXXX XX. By: [SIG] (SEAL)
---------------------------- ---------------------------------
Executive Vice President
-31-
