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Exhibit 10.16
LEASE
THIS AGREEMENT OF LEASE, made and entered into as of the _____ day of
_______, 1998, by and between STEALTH TECHNOLOGY ASSOCIATES ("Lessor"), with its
principal office located at 000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000,
and UBICS INC. ("Lessee"), with an address at #100 Sainte Clair Plaza, 0000
Xxxxx Xxxx, Xxxxxxxxxx, XX 00000.
WITNESSETH:
In consideration of the foregoing and of the representations,
warranties, covenants and conditions set forth herein, and intending to be
legally bound hereby, Lessor and Lessee understand and agree as follows:
ARTICLE I
LEASED PREMISES
1.1 Demise. Commencing as of the Commencement Date (as hereinafter
defined), Lessor hereby agrees to lease and demise to Lessee, and Lessee hereby
agrees to take and hire from Lessor, upon the terms and conditions set forth in
this Lease, certain space in a building ("the Building"), located or to be
located on the real property situated in Xxxxx Township, Washington County,
Pennsylvania, which space is particularly designated in red on Exhibit "A"
attached to this Lease (the "Leased Premises"). The Building and the land (the
"Land") on which it is situated, as described on Exhibit "B", are hereinafter
called the "Property". Lessor reserves the uses of all portions of the Building
beyond the interior surfaces of the walls, floor and ceiling of the Leased
Premises, including the right therein to install, maintain, use, repair and
replace pipes, ducts, conduits and wires , provided that Landlord shall use
reasonable efforts to avoid unreasonable interference with Lessee's use of the
Leased Premises.
1.2 Lessee's Pro Rata Share. Lessor and Lessee agree that the Leased
Premises shall be conclusively deemed to consist of 20,749 square feet of
rentable area, that the Building shall be conclusively deemed to consist of
116,000 square feet of rentable area, and that, except as hereinafter provided,
Lessee's Pro Rata Share for purposes of this Lease is 18%.
1.3 Right of First Refusal. Lessor agrees that, prior to leasing any
space in the Building on the same floor as and contiguous to the Leased Premises
or, subject to the rights of the tenant under the lease to Xxxxx-Xxxxxxx
Company, Inc., d/b/a Rockwell Automation, on the floor of the Building
immediately below the floor on which the original Demised are located, Lessor
shall first offer to lease such space to Lessee on the same terms as are set
forth in this Lease (as modified in the summary set forth below), except that
(a) the Annual Base Rent per square foot of rentable area shall be equal to the
rental rate which Lessor shall then desire to offer to a third party, (b) any
construction or allowance to be provided by Lessor shall be at a cost equal to
that which Lessor is willing to offer to such third party, and (c) Lessee's Pro
Rata Share shall be adjusted to account for such additional space.
Notwithstanding the foregoing, Lessor shall have no obligation to offer any such
space to Lessee if (A) any default under this Lease (after the expiration of any
applicable grace period set forth in this Lease) shall exist or shall have
occurred and be continuing, or (B) the term of such proposed lease to a third
party shall exceed the then
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Exhibit 10.16
existing Lease Term. If Lessor shall receive a proposal to which Lessee shall
have a right of first refusal as provided in this subsection, Lessor shall
deliver to Lessee a summary of the economic terms of such proposal and Lessee
shall have ten (10) days after its receipt thereof within which to elect to
lease such space by a written notice delivered to Lessor within such period. If
Lessee shall not have made such election within such period, Lessee shall be
deemed to have waived its right to lease such space on the terms of this
subsection. If, however, Lessor shall not have entered into a lease
substantially on the terms contained in such summary within six (6) months after
the expiration of such ten (10)-day period, Lessee shall again have the right of
first refusal with respect to such space. If Lessee shall elect to lease such
space, Lessee shall execute an amendment to this Lease incorporating such terms
and such space into this Lease within ten (10) days after the delivery thereof
by Lessor and failure to do so shall constitute a default under this Lease
without further grace period and Lessee shall thereupon have forfeited its
rights under this subsection. It is understood that, in order for Lessee to have
the right to lease space pursuant to this subsection, Lessee shall be obligated
to lease all of the space included within such summary, even if such space
includes area of the Building to which the right of first refusal set forth in
this subsection does not otherwise apply.
ARTICLE II
LEASE TERM
2.1 Lease Term. (a) The term of this Lease shall commence on the
Commencement Date (as hereinafter defined) and shall expire sixty (60) months
thereafter, or if the Commencement Date is other than the first (1st) day of a
calendar month, such number of full calendar months after the Commencement Date
(such term, as the same may be renewed or extended, hereinafter called the
"Lease Term").
(b) Lessee shall have the option to extend the Lease Term for one five
(5)-year period, provided that (i) no default under this Lease (after the
expiration of any applicable grace period set forth in this Lease) shall exist
or shall have occurred and be continuing as of the date such optional period
would otherwise take effect, and (ii) Lessee shall have delivered written notice
to Lessor of its exercise of each such option at least one hundred eighty (180)
days prior to the date such optional period would otherwise commence as part of
the Lease Term. The terms of this Lease shall remain the same during any such
extended Lease Term except that the Annual Base Rent shall be as provided in
Section 3.1 of this Lease.
2.2 Commencement Date. The "Commencement Date" shall mean the earliest
of (a) the date that Lessor shall have notified Lessee that the Leased Premises
has been substantially completed in a manner consistent with the plans
identified on Exhibit "A" and specifications identified on Exhibit "C" to this
Lease, (b) the date that, in Lessor's reasonable estimation, the Leased Premises
would have been so completed absent delays caused in material part by Lessee or
any of its employees, agents, contractors or subcontractors, or (c) the date
that Lessee shall occupy any portion of the Leased Premises for any purpose
other than Lessee's pre-wiring the Leased Premises for the conduct of Lessee's
business, provided that such activities will not, in Lessor's reasonable
judgment, interfere with its work in the Leased Premises or elsewhere. Lessee
shall not have the right to occupy any portion of the Leased Premises prior to
the completion of the work as described in this Section without Lessor's prior
written consent. In no event shall Lessor have any liability or responsibility
for any damage or loss to any property, to Lessee's business or otherwise,
irrespective of any negligence of Lessor, if Lessee shall elect to conduct any
such
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Exhibit 10.16
activities in the Leased Premises with Lessor's consent, and Lessee shall
indemnify, defend and hold Lessor harmless from and against any and all
liability, claims, loss, damage, cost and expense, including reasonable
attorneys' fees, arising by reason of any such activities of Lessee or any of
its contractors, invitees or licensees. Lessor shall not be liable for any
delays in causing the occurrence of the Commencement Date in the absence of
delays caused solely by Lessor's gross negligence or willful misconduct. At such
time as the Commencement Date shall be established, the parties shall enter into
an agreement confirming the same in the form of Exhibit "D". Lessor shall
construct the Leased Premises substantially in accordance with the plans
identified on Exhibit "A" and specifications identified on Exhibit "C" to this
Lease and with all applicable laws, ordinances, codes and regulations (including
ADA) except for any violations by reason of the specific nature of Lessee's
business or Lessee's use of the Leased Premises, such construction to be of such
workmanship as shall be comparable with other leased premises constructed by
Lessor in the Southpointe development. The Leased Premises shall be deemed to
have been substantially completed at such time as they may be occupied without
material interference, subject to routine punchlist items and cleaning. The
parties acknowledge that the target date intended by the parties for the
substantial completion of the Leased Premises is August 15,1998; provided that,
in the absence of delays beyond Lessor's reasonable control, the Leased Premises
shall be substantially completed on or before September 1,1998. In the event
that the Leased Premises shall not have been substantially completed on or
before September 1, 1998, then as Lessee's sole remedy, the Annual Base Rent
shall be reduced by an amount equal to Four Hundred Dollars ($400.00) for each
day thereafter until the same shall have been substantially completed.
ARTICLE III
RENT, CHARGES AND TAXES
3.1 Aggregate Base Rent. Lessee shall pay to Lessor during the initial
Lease Term as base rent for the Leased Premises an aggregate amount of One
Million, Seven Hundred Sixty-Three Thousand Six Hundred Sixty Five and 00/100
($1,763,665.00) Dollars. The annual base rent (the "Annual Base Rent") will be
equal to Three Hundred Fifty-Two Thousand Seven Hundred Thirty-Three and 00/100
($352,733.00) Dollars, payable in equal monthly installments of Twenty-Nine
Thousand Three Hundred Ninety-Four and 42/100 ($29,394.42) Dollars in advance
beginning on the Commencement Date and continuing on the first day of each
calendar month thereafter during the Lease Term, provided however that three (3)
full monthly installments of Annual Base Rent shall be payable upon the
execution of this Lease by the parties and shall be applied toward the Annual
Base Rent as it shall thereafter become due. Pending the accrual of such prepaid
Rent, the same may be retained by Lessor as an additional Security Deposit with
all rights of Lessor therein as provided in Section 3.10. The parties
acknowledge that the Annual Base Rent set forth above is based on the area of
the Leased Premises set forth in Section 1.2 at an annual rate of $17.00 Dollars
per square foot of rentable area. The Annual Base Rent during the optional
period within the Lease Term shall be Three Hundred Ninety-Four Thousand Two
Hundred Thirty-One ($394,231) Dollars per year, payable in advance in equal
monthly installments of Thirty-Two Thousand Eight Hundred Fifty-Two and 58/100
($32,852.58) Dollars.
3.2 Payment of Utilities. Lessee agrees to pay when due, as additional
Rent, the costs and charges for all utility services furnished to the Leased
Premises, including without limitation water, sewage, gas and electricity,
whether measures by meter or as allocated by Lessor as hereinafter provided.
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Exhibit 10.16
Lessor agrees to cause gas and electrical service to the Leased Premises to be
separately metered so long as it is reasonably feasible to do so at customary
expense. With respect to those services which are not separately metered for
Lessee's usage, the cost of such service which shall be allocated to the Leased
Premises and shall be payable by Lessee shall be computed, except as hereinafter
provided, by multiplying the total amount due for such services in the entire
building by Lessee's Pro Rata Share. If any utilities are not separately metered
to measure Lessee's usage, but the usage of such utilities by one or more other
tenants in the Building is separately metered, then Lessee's Pro Rata Share of
such utility costs shall be a fraction whose numerator shall be the rentable
square footage of the Leased Premises and whose denominator shall be the square
footage of the Building, all as determined pursuant to Section 1.2, less the
rentable square footage, as calculated by Lessor, leased to other tenants in the
Building whose usage of such utilities is so separately metered. Any utility
usage billed by a utility company directly to Lessee shall be paid on or before
the due date for payment of such amounts. Any other utility costs shall be
payable by Lessee within twenty (20) days after Lessee's receipt of statement
thereof.
3.3 Payment of Real Estate Taxes. (a) Lessee agrees to pay to Lessor,
as additional Rent, within twenty (20) days after demand by Lessor, a sum equal
to Lessee's Pro Rata Share of the Real Estate Taxes (as hereinafter defined)
payable during a calendar year in whole or in part within the Lease Term. If the
Property shall not be separately assessed for such purposes, then Lessor shall
be entitled, in such manner as Lessor may in good faith determine, to allocate
the Real Estate Taxes between the Property and other portions of the real
property which are the subject of the Real Estate Taxes. Attached hereto as
Exhibit "E" is the documentation received by Lessor relating to a tax abatement
currently under consideration for the Property. Lessor agrees that, if a tax
abatement shall not be received as provided in Exhibit "E", Lessee shall be
obligated to pay Real Estate Taxes only as though such abatement had been
received.
(b) "Real Estate Taxes" shall include all taxes and assessments of
public authorities and governmental bodies, whether general or special, ordinary
or extraordinary, which shall be assessed, levied, charged or imposed upon the
Property or against Lessor as owner thereof or otherwise during the Lease Term,
including any assessments for public improvements or otherwise during the Lease
Term, including any assessments for public improvements or otherwise, as well as
any excise taxes, sales tax or other taxes, fees or charges, however described,
which may be levied or assessed against Lessor or the Property or the rents,
issues or profits thereof, in substitution in whole or in part for any other
Real Estate Taxes. If Lessor shall obtain a reduction in any Real Estate Taxes,
Lessor shall be entitled to reimbursement of its reasonable costs in obtaining
such reduction prior to Lessee's receipt of any benefit of such reduction. Real
Estate Taxes payable in the calendar years in which the Lease Term shall expire
shall be prorated on a calendar year basis by taking into account the portion of
such calendar year within the Lease Term. After request, Lessor agrees to
provide promptly copies of documentation evidencing the calculation of Real
Estate Taxes.
3.4 Payment of Insurance. Lessee shall pay to Lessor, as additional
Rent, Lessee's Pro Rata Share of the cost incurred by Lessor in any calendar
year with respect to insurance carried from time to time relating to the
Property or any portion thereof or any activities thereon (including, without
limitation, casualty, liability and property damage, business interruption, rent
loss and other insurance). Such payment shall be made within twenty (20) days
after delivery of a written statement for such charges to Lessee.
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Exhibit 10.16
3.5 [RESERVED]
3.6 Payment of Operating Costs. (a) Lessee agrees to pay Lessor, as
additional Rent, Lessee's Pro Rata Share of Operating Costs (as hereinafter
defined) incurred during the Lease Term within twenty (20) days after Lessor's
delivery of a statement thereof to Lessee. If any Operating Costs shall relate
to periods both within and beyond the Lease Term, Lessor shall be entitled to
make an allocation of a portion of such Operating Costs to the Lease Term in
such manner as Lessor may reasonably elect.
(b) "Operating Costs", subject to the exclusions set forth in
subsection (c) below, shall include all costs incurred by Lessor in connection
with the maintenance, repair, replacement, management, security, operation and
ownership of the Property, including, without limitation, and by way of example
(i) all costs of snow and ice removal, striping, sweeping, sealing, repairing
and replacing all driveways, parking areas, curbing, sidewalks and other
portions of the Property; (ii) all costs of maintenance, repair and replacement
of lighting facilities, equipment, bulbs and ballasts; (iii) all costs of lawn
and garden maintenance, including cutting, trimming, planting and replacement of
lawns, shrubbery and other vegetation; (iv) all costs of electrical, gas and
other utility usage relating to the common areas of the Property to the extent
not taken into account in Section 3.2; (v) all costs of trash and rubbish
removal; (vi) all costs of pest control and extermination; (vii) water and
sewage charges; (viii) all costs of maintaining and inspecting fire
extinguishers, smoke and fire detectors and security systems; (ix) all costs of
maintaining, repairing and cleaning windows; (x) all costs of maintaining,
repairing and lighting any signage on the Property (other than commercial
signage relating to other tenants); (xi) all costs of capital improvements and
replacements to the extent that the same reduce the amount of other Operating
Costs as reasonably estimated by Landlord (it being understood that any such
savings can only be approximated)or are required by law; (xii) all charges
allocated to the Property and payable pursuant to any covenants, easements or
restrictions now or hereafter encumbering the Property (the "Covenants") or
payable to any association of owners of property which includes the Property;
and (xiii) a charge equal to ten percent (10%) of all Operating Costs, which the
parties hereby agree is a reasonable charge for administering the Property and
the services related thereto.
(c) Operating Costs shall not include (i) any costs of which Lessee is
required to reimburse Lessee's Pro Rata Share pursuant to Sections 3.2, 3.3, 3.4
or 5.1 of the of this Lease; (ii) Real Estate Taxes or insurance costs; (iii)
any costs of utilities separately metered to the Tenant or other tenants in the
Building; (iv) any costs charged directly to Tenant or other tenants in the
Building; (v) any costs of obtaining new tenants of the Building, including
brokerage commissions, advertising expenses and tenant improvement costs; (vi)
any costs of enforcement against tenants of the Building by reason of defaults
under their respective leases; (vii) costs of repair or restoration to the
extent such costs are reimbursed to Lessor by casualty insurance proceeds;
(viii) interest or amortization payments on any indebtedness secured by any
mortgages or any rental under any ground or underlying lease; (ix) expenses in
connection with the maintenance and operation of any garage structure and all
facilities contained therein; (x) the cost of correcting any material design or
construction defects; (xi) depreciation as defined in the United States Internal
Revenue Code; or (xii) costs incurred by Lessor by reason of its default under
the terms of any lease of space in the Building.
3.7 Monthly Installments. Lessor reserves the right to require Lessee
to pay monthly installments of Real Estate Taxes, insurance and Operating Costs
with each monthly payment of Annual
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Exhibit 10.16
Base Rent. Such monthly installments shall be equal to Lessor's estimate from
time to time of one-twelfth (1/12) of Lessee's Pro Rata Share of annual Real
Estate Taxes, insurance and Operating Costs, provided that if Lessor shall
adjust such estimate at any time, or if at any time Lessee's Pro Rata Share of
such costs incurred or to be incurred are expected by Lessor to exceed the
monthly installments paid as of such time on account of such costs, Lessor shall
be entitled to increase the amount of such monthly installments to such amount
as Lessor shall determine to allow Lessor to pay Lessee's Pro Rata Share of such
costs when due from such installments paid by Lessee. Within one hundred twenty
(120) days after the end of each calendar year, Lessor shall provide to Lessee a
statement, certified by Lessor and prepared in accordance with sound accounting
principles, setting forth the Real Estate Taxes, insurance and Operating Costs
for such calendar year. Upon reasonable notice and at reasonable times, Lessee
shall have the right to examine the records of Lessor relating to such Real
Estate Taxes, insurance and Operating Costs but not more frequently than
annually.
3.8 Proration and Payment of Rent. The Annual Base Rent and all other
sums now or hereafter payable by Lessee pursuant to the terms of this Article
III, as well as all other sums payable by Lessee which may be designated herein
as "Rent", are herein collectively called the "Rent". If the Commencement Date
shall be other than the first (1st) day of a calendar month, the Rent for the
calendar month in which the Commencement Date shall occur shall be prorated
based on the portion of such calendar month from and after the Commencement
Date. All Rent and any other sums payable by Lessee to Lessor pursuant to the
terms of this Lease shall be payable in U.S. Dollars only at the address of
Lessor set forth in this Lease (or at such other address as may be designated by
Lessor by prior written notice to Lessee), and shall be payable without any
set-off or deduction whatsoever, and without any abatement except as may be
expressly authorized by the other terms of this Lease. The covenants of Lessee
to pay Rent or any other sum under this Lease or to perform any other obligation
hereunder are deemed to be independent of any other term, covenant, warranty,
representation or other undertaking of Lessor under this Lease.
3.9 Late Payment of Rent. In the event any Rent or other sum due
pursuant to this Lease shall remain unpaid beyond ten (10) days after the date
when such payment is due (irrespective of any grace period which may be set
forth elsewhere in this Lease as a condition to the occurrence of a default
hereunder), Lessee shall pay to Lessor, as additional Rent, a late fee of ten
percent (10%) of the amount due, which amount the parties agree is a reasonable
charge for the additional administrative costs required of Lessor by reason of
such late payment, provided that Lessee shall not be obligated to pay such late
fee if such fee shall be paid within five (5) days after notice from Lessor that
such payment of Rent or other sum is then due, but provided further that such
notice shall be required as a condition to the payment of late fees only two
times in any twelve(12)- month period.
3.10 [RESERVED]
ARTICLE IV
USE AND OCCUPANCY OF LEASED PREMISES
4.1 Use of Leased Premises. (a) Lessee shall use the Leased Premises
solely for office space in the ordinary course of Lessee's regular business as
the same may lawfully change from time to time. Except for the purposes set
forth above (collectively the "Permitted Use"), Lessee shall not use the
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Exhibit 10.16
Lease Premises for any other purpose whatsoever without the prior written
consent of Lessor, which permission may be withheld by Lessor in its sole
discretion. Lessee agrees not to change, increase, enlarge or modify the scope
of the Permitted Use of the Leased Premises. Lessee warrants and represents to
Lessor that the Permitted Use does not and will not involve the creation,
generation, use, storage, disposal or discharge of Hazardous Substances (as
defined below) (other than Hazardous Substances of types and quantities
necessary for the conduct of Lessee's regular business where such Hazardous
Substances are safely and lawfully stored), loud noises, obnoxious odors, skin
or eye irritants, noxious gasses, excessive dust or other particulate, or any
other condition or occurrence which may be considered to be a nuisance to
occupants of the Building or a danger to persons or property.
(b) Lessee shall comply at all times with such reasonable and
non-discriminatory rules and regulations as Lessor may from time to time publish
with respect to use and occupancy by its tenants. All such rules and regulations
shall apply to Lessee and its employees, agents, licensees, invitees, sublessees
and contractors.
(c) In the event Lessee is required to obtain any permits to the use of
the Lease Premises, Lessee shall be responsible to obtain the same and shall pay
the cost thereof.
(d) the Permitted Use (including any additional uses approved by Lessor
above) is now and shall hereafter at all times be in continuous compliance with
all applicable federal, state and local laws, rules and regulations, including
but not limited to zoning, environmental, land use, health and safety laws and
occupancy permits and building codes; and shall be subject always to the terms,
conditions, limitations and restrictions set forth above and elsewhere in this
Lease.
4.2 Vehicles. (a) Permitted Vehicles (as hereinafter defined) may be
parked in the parking areas of the Property and on no other property of Lessor,
subject to such parking regulations as Lessor may from time to time adopt.
Lessor shall not adopt parking regulations which would unreasonably limit
available parking to Lessee and its employees, officers, agents, invitees and
customers at the Property. No other vehicles shall be parked in or about the
Property or any other Property of Lessor. Storage of any vehicles on the
Property or any other property of Lessor is strictly prohibited. "Permitted
Vehicles" shall mean only vehicles of Lessee, its employees, visitors and
business invitees as may be necessary and appropriate to the conduct of Lessee's
normal business operations in the Leased Premises. Permitted Vehicles shall not
include (i) inoperable, uninspected or unregistered vehicles, or (ii)
tractor-trailers or large trucks or vans except for such minimal time as may be
required to promptly load or unload the same. Lessee understands that overnight
parking shall be prohibited except in such instances where Lessor shall have
granted permission in advance to park overnight, which permission may be
withheld without cause and withdrawn at any time. Lessor may, after giving two
(2) days prior written notice to Lessee, tow or remove from the Property or any
other property of Lessor any vehicles that are not Permitted Vehicles or any
vehicles in violation of the foregoing, and Lessee shall reimburse Lessor for
all costs attendant thereto, including towing and storage of cars, as additional
Rent.
(b) Lessor assumes no responsibility or liability whatever for the loss
of or damage to any automobile while parked on the Property or any other
property of Lessor except for damage caused by the gross negligence or willful
misconduct of Lessor. Entrances and disembarking lanes shall not be obstructed
and "no parking areas" and designated "handicapped spaces" shall be observed at
all times.
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Exhibit 10.16
Lessee shall not use any area or space for the purpose of washing, servicing, or
making repairs of any nature to any vehicles. Driving of any vehicle on the lawn
areas is prohibited.
(c) In the event that another tenant in the Building shall have been
granted exclusive designated parking spaces on the Property, then during the
period of such exclusivity, Lessee shall also be granted exclusive designated
parking spaces on the Property. The number of parking spaces to be so designated
for Lessee's exclusive use shall be a fraction of the number of spaces so
granted to another tenant. The numerator of such fraction shall be the rentable
area of the Leased Premises and the denominator shall be the rentable area of
such other tenant with exclusive parking rights leasing the largest rentable
area in the Building, provided that such fraction shall not exceed the number
one (1). Any fractional number of spaces determined by the foregoing formula
shall be disregarded.
4.3 Compliance with Insurance. Lessee agrees not to use or occupy, or
suffer or permit to be used or occupied, the Leased Premises or any other part
of the Property in any manner deemed by Lessor or its insurance company to be an
unreasonable fire or safety hazard. If Lessee's use or occupancy causes
increases in the cost of fire and extended casualty coverage and/or liability
insurance to Lessor over and above the normal cost of such insurance for the
type and location of the Building of which the Leased Premises are a part,
Lessee will, on demand and as additional Rent, reimburse Lessor for the cost of
all extra premiums caused by Lessee's use or occupancy of the Leased Premises,
Lessee shall discontinue any use or occupancy (including the removal of
equipment or materials) which shall have resulted in the increase of the cost of
said insurance to Lessor, unless Lessor shall thereafter consent to such use in
writing; provided, however, that Lessee shall not be responsible to pay
additional premiums assessed at the Commencement of this Lease, since the same
have been factored into the base rent to be paid by Lessee at Commencement.
4.4 Excess Service. If Lessee's use requires trash removal or other
service in excess of that of other Building occupants, Lessor reserves the right
to demand reimbursement of the cost thereof and the same shall be considered
additional Rent and shall be payable on demand.
4.5 Hazardous Substances. Lessee agrees not to, and shall cause all of
its sublessees and their respective, contractors, subcontractors, licensees and
invitees, and all agents and employees of any of the foregoing not to, store,
produce or permit any "Hazardous Substances" on or about the Property or other
property of Lessor. "Hazardous Substances" shall mean asbestos,
asbestos-containing materials, polychlorinated biphenyls, mercury, lead,
lead-based paint, chlorofluorocarbons, petroleum-based products, petroleum
byproducts, explosives and other substances regulated by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section 9601 et seq., the Resources Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq. or any other federal, state or local laws, rules,
regulations or ordinances relating to the regulation of toxic or hazardous
materials or otherwise to the environment, all as the same may have heretofore
been or may hereafter be amended. Lessee shall indemnify, defend and hold Lessor
harmless against and from any expense for the cost of clean-up or removal and
from any liability, damage, claim, cost or expense whatsoever (including
reasonable attorneys' fees) resulting from Hazardous Substances or the use,
disposal, disposition, spillage or transport thereof by Lessee or any of its
sublessees, contractors, subcontractors, licenses or invitees, or any of its or
their respective agents or employees. In the event that Lessee shall fail to
comply with this Section, then in additional to any other rights and remedies
Lessor may have, Lessee shall bear the entire
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Exhibit 10.16
expense of clean-up or removal thereof, and shall promptly commence and
diligently prosecute to completion such clean-up or removal of all Hazardous
Substances. Lessor may, but shall not be obligated to, commence and complete
such clean-up and removal irrespective to any actions taken or intended to be
taken by Lessee or any other party, and Lessor may charge Lessee, as additional
Rent, for the entire cost and expense thereof, which shall be payable on demand.
Lessor represents that, to its knowledge, the Leased Premises are currently free
from Hazardous Substances except to the extent that the same may be referred to
in that certain _______________________, dated _________________, prepared by
_______________________, a copy of which has heretofore been provided to Lessee.
4.6 Animals. No animals, birds, pets or reptiles of any kind shall be
permitted, brought or kept in or about the Property.
4.7 Assignment and Subletting. Lessee shall not assign this Lease or
sublet the Leased Premises without Lessor's prior written consent, which consent
shall not be unreasonably withheld, provided that Lessee shall remain liable
under this Lease, as it may then or thereafter be amended with Lessee's consent,
notwithstanding any such assignment or sublease. Any dissolution or liquidation
of Lessee, or any merger or consolidation involving Lessee whereby Lessee is not
the surviving entity, any transfer of a controlling interest in Lessee (whether
through one or more transactions and whether directly or through the transfer of
interests in one or more other entities or otherwise), and any transfer of any
interest in this Lease by operation of law or otherwise shall he be deemed to be
an assignment for purposes of this Lease. Any such assignment or sublease
without Lessor's written consent, whether by operation of law or otherwise,
shall be null and void at Lessor's option, and shall entitle Lessor to declare
Lessee in default hereunder. No assignment or subletting, whether or not
permitted, shall be deemed to release Lessee from any obligations under this
Lease. Any acceptance of Rent by Lessor or other performance of this Lease by
any assignee or sublessee of Lessee's interest in this Lease shall not be
construed as Lessor's consent to any assignment, and Lessor shall not be
estopped to assert the lack of such consent by reason of any such matters.
Lessor shall be entitled to fifty percent (50%) of any rent and other
consideration paid by or on behalf of any sublessee or assignee which, on a
square footage basis, shall exceed in the aggregate the Rent under this Lease
(prorated on a square footage basis for the portion of the Leased Premises
subleased) for a comparable period, and such excess shall be paid to Lessor
immediately upon receipt thereof by Lessee. Notwithstanding the foregoing,
Lessee may assign this Lease or sublet the Leased Premises, without Lessors
consent, to any affiliate of Lessee, provided that Lessee shall remain liable
under this Lease, as it may then or thereafter be amended, notwithstanding any
such assignment or sublease. For purposes of this Section, "affiliate" shall
mean any corporation or other person or entity controlled by, controlling or
under common control with the person or entity in question, and "control" shall
mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a person or entity, whether through
the ownership of voting securities, by contract or otherwise.
ARTICLE V
MAINTENANCE AND REPAIRS
5.1 Lessee's Maintenance. (a) Lessee, at its expense, shall at all
times maintain the Leased Premises in first-class, clean and sanitary order,
condition and repair, including without limitation all carpeting and flooring
therein. Lessee shall be solely responsible, at its own cost, to furnish and
replace all
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Exhibit 10.16
electric bulbs, ballasts, fluorescent tubes and restroom supplies for the Leased
Premises. All contractors and subcontractors performing any repairs or other
work within the Leased Premises shall be subject to the prior written approval
of Lessor in its sole discretion, and prior to the commencement of any such
repairs or other work, shall have duly and effectively waived any right to claim
or file a mechanic's or materialman's lien against the Property or any part,
thereof or interest therein.
(b) Prior to taking any action to maintain or repair any portion of the
electrical, plumbing or HVAC systems serving the Leased Premises (other than the
routine replacement of bulbs and ballasts), Lessee shall notify Lessor of the
need therefor and Lessee shall not take any such action unless thereafter
specifically authorized by notice from Lessor to do so. Lessor reserves the
right to perform such replacement, maintenance and repair, irrespective of
having received a notice thereof from Lessee, in which event Lessee shall pay
Landlord, on demand and as additional Rent, for the reasonable cost thereof.
5.2 Lessor's Maintenance. (a) Lessor shall maintain and repair the
exterior walls, roof, ceiling and structural portions of the Building, as well
as all exterior glass, stairways, stairwells, plumbing, HVAC, elevators, common
areas and mechanical, electrical and telephone closets, in a manner in all
material respects consistent with the current level of maintenance of other
office buildings in the Southpointe development, unless such maintenance or
repairs are necessitated by the acts or omissions of Lessee or any of its
sublessees or any of their respective contractors, subcontractors, licensees or
invitees, or any agents or employees of any of the foregoing. In the event that
the Building Mechanics and Management Systems are not Year 2000 Compliant,
Lessor shall promptly cure such condition to the extent necessary to avoid
material interruption to the operation or management of the Building or any of
its systems. "Year 2000 Compliant" means that neither the year change from 1999
to 2000 nor the arrival of the date January 1, 2000 and leap year dates
thereafter will result in errors in processing data or otherwise have a
materially adverse effect on the operations or functionality of the Building
Mechanics or Management Systems. "Building Mechanics" include all automated or
electronic controls and systems used by Lessor or its agents or contractors to
service the Leased Premises, including security systems, elevators, HVAC systems
and controls, mechanical systems, fire alarm systems, lighting and electrical
systems and electronic locking systems. "Management Systems" shall mean all
computer hardware and software applications that Lessor or its agents or
contractors use for managing and operating the Building, including without
limitation accounting and billing, Building management and maintenance,
scheduling and work orders.
(b) If Lessor shall fail to perform any of its maintenance obligations
under this Lease, then after the expiration of ten (10) days after written
notice thereof by Lessee to Lessor (or such lesser period as may be necessary to
avoid an emergency), Lessee shall be entitled to perform such maintenance and to
set off against the Annual Base Rent thereafter accruing any reasonable sums
directly incurred by Lessee in effecting such cure, provided that Lessor shall
not then be diligently pursuing such maintenance and Lessee shall first have
provided to Lessor copies of all invoices and other detail relating thereto as
Lessor may reasonably require.
5.3 Interruption of Service. No interruption or curtailment of any
service or maintenance in the Building shall entitle Lessee to any claim against
Lessor or to any abatement of Rent, nor shall the same constitute constructive
or partial eviction, unless caused by the gross negligence or willful misconduct
of Lessor, provided that if such interruption shall continue for ten (10)
consecutive business days other than
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Exhibit 10.16
by reason of any act or omission of Lessee or its agents, contractors, licensees
or invitees, then the Annual Base Rent shall be abated only to the extent that
Lessee shall be prevented from making reasonable use of the Demised Premises. In
no event shall Lessor be liable to Lessee for consequential damages of any kind
or nature, regardless of any negligence on the part of Lessor and regardless of
whether or not Lessor has received notice of the same. If Lessor shall fail to
diligently proceed to correct any such material interruption in services, then
Lessee may terminate this Lease.
ARTICLE VI
ALTERATIONS AND ADDITIONS TO THE LEASED PREMISES
6.1 Alterations and Additions. (a) Lessee shall not add partitions,
ceilings, do any painting, make modifications to concrete floors, alter, remove
or replace doors, alter or add any additional lighting or do any electrical,
mechanical or plumbing work, or make any other alterations or additions to the
Leased Premises without the written consent of Lessor, which consent shall not
be unreasonably withheld, provided that Lessee may make minor repairs to the
Leased Premises costing less than $10,000 and not affecting or involving any
structural aspect of the Building or any of its electrical, plumbing, HVAC,
mechanical, security or other systems or any other portion of the Leased
Premises which would be visible from beyond the Leased Premises. In addition, no
such work shall be performed unless and until Lessor shall have approved all
plans and specifications therefor. All such alterations and additions, if agreed
to, shall be made in accordance with all applicable laws and regulations and
shall remain for the benefit of Lessor after the Lease Term unless Lessor shall
direct that the same be removed, in which event Lessee shall remove the same and
restore Leased Premises to its original condition, provided that Lessee shall
not have any obligation to remove any improvements installed by Lessor pursuant
to Exhibits "A" and "C". If requested by Lessee by notice to Lessor, Lessor
shall designate those alterations and additions which shall require removal at
the end of the Lease Term. In the absence of default by Lessee, Lessee shall be
entitled to remove its trade fixtures at the end of the Lease Term, provided
that Lessee shall restore the Leased Premises to its original condition. All
contractors and subcontractors performing any such work or providing any
materials, supplies or equipment therefore shall be subject to the prior written
approval of Lessor in its reasonable discretion, all of whom shall have duly and
effectively waived any right to claim or file a mechanic's or materialman's lien
against the Property or any portion thereof or interest therein prior to the
commencement of any such work or the delivery of any materials, supplies or
equipment to the Leased Premises.
(b) All alterations or additions shall be made in a proper and
workmanlike manner and with the use of only first class materials. Lessee agrees
to fully pay for same and to indemnify and hold Lessor harmless from all
expenses, liens, claims or damages to persons or property arising therefrom or
related thereto.
6.2 Electronic Equipment. If Lessee shall introduce electronic
equipment into the Building (including, but not limited to, normal office
equipment or equipment for the purpose of transmitting via satellite or other
means of analog or digital signals) Lessee shall provide upon request sufficient
detail to ascertain that such equipment shall not be installed in a manner that
will adversely affect other tenants of the Building. Lessee shall be responsible
to provide all FCC licensing and compliance with any Federal, State or local
requirements regarding such equipment. Such placement or installation shall
comply with all existing or future fire codes and other rules and regulations of
public authorities have jurisdiction
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Exhibit 10.16
thereof. Lessor shall have the right to approve cable routes within the Leased
Premises. Should Lessee not follow the approved cable routes and generally
accepted engineers practices in the connection of such equipment, Lessor may
require relocation, removal or rearrangement of any wires, cables and other
equipment, and in the event the electronic equipment shall interfere with or
disrupt any service to the Building, then in addition to all other rights and
remedies Lessor may have, Lessor may require the placement and use of electrical
protecting devices to prevent the transmission of excessive currents or draw of
excessive voltage of electricity into, from or through the Building, or to avoid
damage or limitation of source to any other part of the Building. Such
relocation, removal or rearrangement, and such placement and use or equipment
installation, shall be at the sole expense of Lessee. Any connections to
electrical distribution panels made at the request of Lessee within the space
shall be clearly marked with the designation of the use and its location. If
Lessee shall install any electrical equipment which overloads, or in Lessor's
reasonable judgment may overload, any of the electrical lines in the Leased
Premises or any other portion of the Building, or which causes, or in Lessor's
reasonable judgment may cause, any surge or disruption of the Building's
electrical service, Lessee shall, at Lessee's sole expense, make whatever
changes are necessary to comply with the requirements of Lessor, its insurance
company and governmental authorities. Lessor shall in all events have the right
to approve any electrical installation prior to the same being made.
ARTICLE VII
ACCESS TO LEASED PREMISES
7.1 Access. Lessor reserves the right to enter the Leased Premises, and
Lessee agrees to permit Lessor and its agents, upon at least 24 hours notice
(except in the case of an emergency), to (a) enter the Leased Premises during
regular business hours for the purpose of inspecting, showing or examining the
Leased Premises; and (b) enter the Leased Premises at any time to make such
repairs, alterations, improvements or additions in and to the Leased Premises or
to adjoining premises, that Lessor may deem desirable or necessary or that
Lessee shall have failed, although required, to do under the terms of this
Lease; provided, however, that, except in the case of an emergency, Lessor shall
use reasonable efforts to avoid unreasonable disruption to Lessee's business
operations and shall give at least two (2) business days' notice of the nature
of the work to be performed and the anticipated period required for such work.
Such entrance into the Leased Premises by Lessor shall not be construed as an
eviction of Lessee from the Leased Premises, and the Rent and any other payments
provided in this Lease to be made by Lessee shall not xxxxx which such repairs,
decorations, alterations, improvements or additions are being made, nor shall
Lessee have any claim against Lessor on account of loss or interruption of
business unless such loss or interruption is caused by Lessor's negligence or
misconduct. Lessor may enter the Leased Premises by a master key (or by use of
force in the event of emergency) without incurring any liability therefore and
without in any manner affecting the obligations of Lessee under this Lease.
ARTICLE VIII
FIRE OR OTHER CASUALTY
8.1 Fire or Other Casualty. If, during the Lease Term, the Leased
Premises or any other portion of the Building is damaged by fire or other
casualty, rendering the same materially unfit for the operation of the business
of Lessee, and if, in Lessor's sole good faith judgment, the same cannot
reasonably be repaired or restored within one hundred fifty (150) days from the
occurrence of such damage, or if Lessor
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Exhibit 10.16
shall not be obligated to restore the Leased Premises by reason of the terms of
subsection (b) below and elects not to restore the same, then this Lease shall
cease and terminate at the option of either party from the date of such damage,
provided, that if Lessor shall have so determined that such restoration may be
completed within such one hundred fifty (150)-day period, but Lessor shall not
in fact have completed the same within such period, despite its reasonable
diligence, then Lessor shall have such additional time (not exceeding thirty
(30) days) as may be reasonably necessary to complete such restoration, and if
so completed, this Lease shall not be terminated. Lessor shall communicate to
Lessee its decision or judgment as to restoration within thirty (30) days after
the occurrence of the casualty, subject to any delays beyond its reasonable
control, including adjustment of losses and negotiations with contractors and
mortgage lenders. Lessee shall pay Rent apportioned to the time of the damage
(or such later date to the extent that Lessee may continue to use any portion of
the Leased Premises) and shall immediately surrender the Leased Premises to
Lessor, without further liability or obligation of Lessee and Lessor hereunder,
provided, however, that nothing contained herein shall release Lessee from any
liability or obligation arising or incurred prior to the time of such damage or
casualty and Lessee's cessation of use of the Leased Premises.
(b) If Lessor shall have determined that any such damage can be
repaired within a period of one hundred fifty (150) days from the date of the
damage, or if this Lease shall not be terminated as hereinabove provided, then
in either event, Lessor shall re-enter and repair said damage, provided that
Lessor shall not have any obligation to repair or replace any portion of the
Leased Premises (i) other than the improvements originally erected or installed
by Lessor at its expense and in place at the time of such fire or other
casualty, and (ii) if any damage thereto shall have been caused by Lessee or any
of its agents, employees, contractors, subcontractors, licensees or invitees
(irrespective of any prior election by Lessor to do so), and this Lease shall
not be affected in any manner except that the liability of Lessee for Rent shall
be equitably abated for the period during which such repairs are being made.
Notwithstanding anything in this Lease to the contrary, Lessor shall not be
obligated to make any restoration if (1) such casualty shall occur during the
last three (3) years of the then applicable Lease Term, (2) there may not be
adequate insurance proceeds available to Lessor to pay in full the cost of such
restoration, or (3)one or more other tenants in the Building may have the right
to terminate their leases of space in the Building by reason of such casualty
and such termination may have an adverse effect on the sale or financing of the
Building or the terms or price or amount thereof.
ARTICLE IX
WAIVER OF LIABILITY
9.1 Waiver of Liability. Lessee agrees that all fixtures, equipment,
merchandise, inventory and other personal property which may at any time be in
the Leased Premises shall be at Lessee's sole risk, or at the risk of those
claiming under Lessee, and Lessor shall not be liable to any person or entity
for any damage to said property, or loss suffered by the business or occupation
of Lessee or any other person or entity caused in any manner whatsoever except
where such damage or loss is the result of Lessor's gross negligence or willful
misconduct, it being agreed that Lessee shall obtain and at all times maintain
adequate insurance for its own benefit against any loss or damage.
9.2 [RESERVED]
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Exhibit 10.16
ARTICLE X
INSURANCE
10.1 Liability Insurance. During the Lease Term Lessee shall maintain,
at Lessee's own cost and expense, general public liability insurance against
claims for personal injury, death and property damage occurring in or about the
Property and for all indemnification and defense obligations of Lessee set forth
in this Lease. Such insurance shall afford protection with limits of not less
One Million Five Hundred Thousand ($1,500,000) Dollars per occurrence.
10.2 Casualty Insurance. Lessee agrees during the Lease Term to
maintain, at its own cost and expense, contents fire insurance with extended
coverage substantially covering the full replacement cost of all equipment,
fixtures, merchandise, inventory and other personal property in the Leased
Premises as well as any alterations that may be made by Lessee to the Leased
Premises. Provided Lessee shall not be in default in the payment of any Rent
hereunder, Lessor shall maintain fire insurance with extended coverage
substantially covering the full replacement cost of the Building, subject to
such reasonable deductibles as Lessor may elect.
10.3 Evidence of Insurance. All insurance required by this Lease to be
maintained by Lessee shall be written with a reputable company or companies, and
Lessee shall furnish Lessor with an appropriate certificate of the effectiveness
and coverage of such policies. All such liability insurance shall name Lessor
and Lessor's mortgagee, if any, as additional insureds, and shall provide that
Lessor and Lessor's mortgagee shall receive at least thirty (30) days prior
notice in writing of the cancellation or amendment of any such insurance policy.
In the event Lessee shall fail to furnish such certificates, Lessor may obtain
such insurance and the premiums on such insurance shall be deemed additional
Rent to be paid by Lessee to Lessor upon demand.
10.4 Waiver and Subrogation Etc. In addition to all other waivers of
liability contained in this Lease, Lessor and Lessee do each hereby releases and
relieve the other from and waive any claim of recovery for any loss or damage to
the real or personal property of either located anywhere in the Building,
including the Building itself, arising out of or incident to the occurrence of
any of the perils covered by their respective casualty insurance policies. Under
no circumstances whatsoever shall Lessor or any partner in Lessor or any agent
or employee of any of the foregoing be liable to Lessee for any losses or
damages suffered as a result of business interruption, lost profits or other
consequential damages to Lessee, whether or not the same area result of any
negligent act or omission to act on the part of Lessor or any such other party.
Lessee undertakes such risks and shall be solely responsible at its own cost for
providing its own business interruption and other insurance in amount to the
extent Lessee deems necessary or desirable. Any insurance policy shall expressly
permit such a release or contain a waiver of any rights of such insurer against
Lessor and Lessee and such other persons. Lessee shall not be liable for any
consequential damages for lost profits arising by reason of Lessor's inability
to lease other space in the Building by reason of the condition of the Building
caused by a default by Lessee. The foregoing shall not be construed to limit
Lessee's liability for the Rent or for other damages, including without
limitation damages (including lost profits) based on Rent which otherwise would
have been payable under this Lease in the absence of the termination of this
Lease or other cessation of payments by Lessee, the cost of maintenance, repairs
and other matters within the responsibility of Lessee under this Lease, the cost
of curing defaults by Lessee under this Lease, and the costs of enforcing this
Lease.
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Exhibit 10.16
ARTICLE XI
BUSINESS AND MAINTENANCE PRACTICES
11.1 Maintenance and Business Practices.
(a) Lessee shall store all rubbish, trash, garbage, discarded
containers, materials or equipment, and other refuse in fire proof bins while
awaiting its removal. Such removal and transfer shall only be to storage areas
designated by Lessor. Lessee shall place recyclable trash in designated bins.
(b) Lessee shall refrain from obstructing any sidewalks, common areas,
driveways and parking areas in or on the Property. Lessee shall refrain from
placing, selling or displaying merchandise on the sidewalks, windows, window
xxxxx, common areas, driveways or parking areas in or on the Property. Lessee
shall not place, store or stage any inventory, supplies, pallets, trash or other
items or materials in the parking lot or any other area outside of the Leased
Premises. OUTSIDE STORAGE OR STAGING IS STRICTLY PROHIBITED.
(c) [RESERVED]
(d) Lessee shall not allow anyone to go on the roof of the Building for
any reason unless having first received written approval from Lessor. Lessee
shall indemnify and hold Lessor harmless against and from any losses, damages,
costs and expenses which Lessor may incur by reason of any loss or claim of loss
of any roof warranty based in whole or in part by reason of Lessee's violation
of this subsection.
(e) Lessee shall not permit the Leased Premises to be used in any way
which, in Lessor's sole good faith and reasonable judgment, may injure the
reputation of Lessor or any of its tenants, or of the business park in which the
Property is located, or which may be a nuisance, annoyance, inconvenience or
damage to Lessor or to other tenants of such park, the Building or the
neighborhood, or which, in Lessor's sole good faith judgment, may interfere with
the use and enjoyment of other tenants of Lessor or violate the terms of such
tenants' leases.
(f) Lessee shall cause its employees, agents, visitors and invitees to
park only in the striped areas provided in the parking area of the Property,
which shall not include reserved spaces which may be designated by Lessor from
time to time.
(g) The walls, partitions, skylights, windows, doors and transoms that
reflect or admit light into the Leased Premises shall not be covered or
obstructed with anything other than Lessor's standard approved window treatment.
The toilet rooms, water-closets, sinks, water coolers, other water apparatus and
the Building's heating, plumbing, ventilation, electrical and air conditioning
systems shall not be used for any purposes other than those for which they were
constructed or intended, and no sweepings, rubbish, or refuse shall be thrown or
placed therein.
(h) Except as provided in Section 12.1 of this Lease, Lessee shall not
place anything on the outside of the Building or Leased Premises or otherwise in
a location visible from outside the Building or Leased Premises.
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Exhibit 10.16
(i) Lessee shall not keep in, on, or about the Leased Premises or any
other portion of the Property, any article having an offensive odor and/or which
is of an explosive or dangerous nature without prior express written consent of
Lessor.
(j) If Lessee's use or occupancy of the Leased Premises shall cause or
transmit sound or noise of such level that it is or may, in Lessor's sole good
faith judgment, become a disturbance to other tenants or neighbors, Lessee
shall, upon demand by Lessor and at Lessee's sole cost, immediately cease and
desist from causing or transmitting such sound or noise, or Lessee shall
immediately install such noise reducing or abating materials or equipment as
required in the sole determination of Lessor to reduce such sound or noise to
acceptable levels.
(k) Lessee shall return all keys for the Building, Leased Premises and
mail box promptly upon the expiration or other terminations of the Lease Term.
Lessee shall not change or place additional locks on doors without Lessor's
prior written consent. Lessee shall pay on demand a twenty-five ($25.00) dollar
charge for any lock-out after hours or at any time that Lessor's leasing office
is not open. Lessee shall present such identification as any agent or contractor
of Lessor may require connections with unlocking the Building or the Leased
Premises.
(l) Subject to Lessor's obligation to deliver the Leased Premises in a
condition in compliance with all applicable laws, regulations, codes and
ordinances, Lessee shall comply, at its sole cost and expense, with all laws,
regulations and ordinances governing public facilities, including the American
with Disabilities Act of 1990, as the same may heretofore have been or may
hereafter be amended (the "ADA"), if such costs shall be incurred by reason of
the specific nature of Lessee's business or Lessee's use of the Leased Premises.
Within ten (10) days after receipt, Lessee shall advise Lessor in writing, and
provide Lessor with copies of any notices alleging violation of any laws,
regulations or ordinances, including the ADA, relating to any portion of the
Leased Premises or the Building or any use thereof or activity therein, or any
governmental or regulatory actions or investigations instituted or threatened
regarding noncompliance with any such laws, regulations or ordinances.
ARTICLE XII
SIGNS
12.1 Signs. (a) Lessee may, at Lessee's sole expense, subject to the
approval of all governing authorities, erect a sign bearing Lessee's name on the
exterior of the Leased Premises. The type, design, size, content and location of
each sign to be erected (or to be altered if then already erected) shall be
subject to the written approval of Lessor prior to the erection or alteration of
such sign.
(b) Except as provided in subsection (a) above or subsection (c) below,
no sign, sticker, advertisement or notice shall be erected, inscribed, painted
or affixed on any part of the exterior or interior of the Building or the Leased
Premises.
(c) Lessor shall cause Lessee's business to be listed on any directory
located on and serving the Property and shall permit Lessee to place the name of
its business on the interior doors of the Building between the Leased Premises
and the common areas of the Building. If Lessor shall permit any lessee of the
Building leasing space of comparable size to that of the Leased Premises to
maintain a sign on the
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Exhibit 10.16
exterior of the Building or on a pylon on the Land, then Lessee shall be
entitled to a similar sign, subject to Lessor's reasonable right of approval as
to content, design and appearance.
ARTICLE XIII
QUIET ENJOYMENT; RELOCATION OF LESSEE
13.1 Quiet Enjoyment. Lessor covenants and agrees that, if Lessee shall
promptly pay the Rent and perform all of the covenants and agreements herein
stipulated to be performed on Lessee's part, Lessee shall have peaceable and
quiet enjoyment and possession of the Leased Premises during the Lease Term,
subject to the terms and conditions of this Lease.
13.2 [DELETED]
ARTICLE XIV
SUBORDINATION; TRANSFER OF PROPERTY
14.1 Subordination. Lessee accepts this Lease subject and subordinate
to any mortgages and all renewals, modifications, consolidations, replacements
or extensions of any such mortgage now in existence or hereafter made from time
to time, affecting Lessor's interest in the Property, irrespective of the extent
of the indebtedness or obligations secured by such mortgages, provided that so
long as Lessee shall not be in default under the terms of this Lease (after the
expiration of any applicable grace periods set forth in this Lease), no holder
of any mortgage shall disturb Lessee in its possession or use of the Demised
Premises (by foreclosure of the mortgage or otherwise), it being understood
however that the provisions of such mortgage or other agreement or documents
secured thereby relating to insurance and condemnation proceeds, or payments in
lieu thereof, shall have priority over the terms of this Lease relating to such
matters. Lessee shall execute, acknowledge and deliver to the holder of any such
mortgage such agreements as may be reasonably requested confirming the foregoing
matters. Such agreement shall contain such terms and conditions which such
holder may request, including without limitation terms relating to the waiver of
defaults, set-off rights, claims and defenses based on events or conditions
existing prior to the acquisition of the Property by such holder or its designee
or any other party by reason of a foreclosure or other judicial sale of the
Property or a transfer in lieu thereof. In the event of a foreclosure sale under
any mortgage or in the event of the judicial sale of the Property to collect
indebtedness secured by any mortgage, or in the event of any transfer of the
Property in lieu thereof, then Lessee shall attorn to and recognize as Lessor
hereunder the party who, but for this Lease, would be entitled to possession of
the Leased Premises. Lessee agrees to give any mortgagee the identity and
address of whom shall have been delivered to Lessee in writing a notice of any
default of Lessor under the terms and conditions of this Lease. The provisions
of this Section relating to subordination of this Lease and to Lessee's
obligation to enter into agreements with the holders of mortgages shall not
apply to any mortgages which are subordinate to one or more other mortgages,
unless the holders of such senior mortgages shall consent thereto in writing and
any such agreement made by Lessee with any holder of a mortgage without such
consent shall be voidable at the option of the holder of any such senior
mortgage which shall not have given such consent. In addition, at the option of
the holder of any mortgage upon the Property, this Lease shall be senior to the
lien of such mortgage. Nothing in this Section shall be construed to give Lessee
any right to terminate this Lease upon default by Lessor hereunder or otherwise.
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Exhibit 10.16
14.2 Transfer of Property. In the event of any transfer of Lessor's
interest in the Property, other than a transfer for security purposes only,
Lessor shall be automatically relieved of any and all obligations and
liabilities on the part of Lessor accruing from and after the date of such
transfer and Lessee agrees to attorn to the transferee.
ARTICLE XV
ESTOPPEL CERTIFICATE
15.1 Estoppel Certificate. Each party agrees, at any time and from time
to time within ten (10) days after receipt of the other party's written request,
to execute, acknowledge and deliver to the other party or to any prospective
purchaser or mortgagee of the Property, subtenant of the Leased Premises,
assignee of this Lease, or lender of Lessor or Lessee a written certificate
stating that this Lease is unmodified and in full force and effect (or, if there
have been modifications, that the same is in full force and effect as modified
and stating the modifications), stating the dates to which the Rent and any
other payment due from Lessee shall have been paid in advance, if any, and
providing such other information as such other party may reasonably require, it
being intended that such certificate delivered pursuant to this Section may be
relied upon by such other party and any prospective purchaser or mortgagee of
the Property or subtenant of the Leased Premises.
15.2 Power of Attorney. If Lessee shall fail to deliver any certificate
required by Section 15.1 within the time period required by such Section, Lessor
shall be entitled, as Lessee's special attorney-in-fact, to execute and deliver
said certificate on behalf and in the name of Lessee to any third party, and
Lessee shall be bound to Lessor and any such actual or prospective purchaser or
mortgagee by all of the statements contained in any such certificate delivered
on behalf of Lessee. In addition, if Lessee shall fail to deliver any
certificate required by Section 15.1 within the time period required by such
Section, it shall be conclusively presumed against Lessee and in favor of Lessor
and any such mortgage or purchaser that this Lease is in full force and effect
(except as may have been modified as indicated by Lessor), that Lessor is in
compliance with all terms of this Lease, and that no Rent has been prepaid.
ARTICLE XVI
SURRENDER
16.1 Surrender. Lessee agrees to deliver and surrender possession of
the Leased Premises to Lessor upon the expiration or earlier termination of the
Lease Term, broom-clean and in as good condition and repair as at the
commencement of the Lease Term, ordinary wear and tear (after taking into
account Tenant's repair and maintenance obligations hereunder) excepted, and to
deliver all of the keys to Lessor or its agent.
16.2 Notice to Quit. Lessee shall surrender the Leased Premises to
Lessor upon the expiration or earlier termination of the Lease Term, without
notice of any kind, and Lessee waives all right to any such notice as may be
provided under any laws now or hereafter in effect in Pennsylvania, including
the Landlord and Tenant Act of 1951, Act of April 6, 1951, as amended.
16.3 Removal of Property. If Lessee shall not have removed all
equipment, furniture, trade fixtures or other personal property, whether owned
by Lessee or other parties, as of the expiration or
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Exhibit 10.16
earlier termination of the Lease Term, then except as otherwise may be provided
in this Lease, Lessor may (a) remove and store the same at the expense of Lessee
or sell the same on behalf of Lessee at public or private sale in such manner as
is commercially reasonable, with any proceeds thereof to be first applied to the
costs and expenses, including reasonable attorney's fees, of the storage and
sale and the payment of any amounts owed by Lessee under this Lease, or (b)
treat the same as abandoned property and remove and claim or dispose of the same
in such manner as Lessor may elect, all at the expense of Lessee.
Notwithstanding anything in this Lease to the contrary, Lessee shall have no
obligation to remove any alterations or improvements included as part of the
initial work to have been performed by Lessor prior to the Commencement Date.
16.4 Restoration of Leased Premises. At Lessor's request made before or
after the expiration or earlier termination of the Lease Term, Lessee shall
remove all alterations which may have been made to the Leased Premises by Lessee
(except those which Lessor may designate in writing as not requiring removal and
except as provided in Section 16.3), as well as all fixtures, equipment and
signs which may have been installed or placed therein by Lessee, and Lessee
shall repair any damage caused by the erection or removal of such fixtures,
equipment or signs, in a workmanlike fashion as Lessor may direct.
Alternatively, Lessor may elect to effect such removal and repair, and all costs
which may be incurred by Lessor in connection therewith shall be payable by
Lessee on demand.
16.5 Posting Signs. Lessor, without hindrance by Lessee, may post "For
Rent" signs at or about the Leased Premises during the last six (6) months of
the Lease Term, and may post "For Sale" signs at or about the Leased Premises at
any time.
ARTICLE XVII
DEFAULT AND REMEDIES
17.1 Default. If Lessee shall fail to timely remit payment to Lessor of
any Rent or any other sum provided for under this Lease within ten (10) days
after the same shall have become due and payable,, or should Lessee assign this
Lease or sublet the whole or any part of the Leased Premises (except as
otherwise expressly permitted by the terms of this Lease) or permit any other
person to occupy the whole or any part of the Leased Premises, without the
express written consent of Lessor, or should an execution be issued against
Lessee which is not stayed by payment or otherwise within ninety (90) days from
the date of issue of said execution, or should bankruptcy proceedings be
instituted by or against Lessee which are not withdrawn or dismissed within
ninety (90) days after the institution of said proceedings, or should an
assignment be made by Lessee for the benefit of creditors by legal proceedings
or otherwise, or should a sale be made of Lessee's personal property by legal
process, or if Lessee shall breach or fail to perform any other term, condition
or covenant of this Lease and shall not have cured the same within thirty (30)
days after notice thereof from Lessor (or if such breach or failure does not
involve the payment of money and is of a type which cannot reasonably be cured
within such thirty (30)-day period, Lessee shall not be deemed to be in default
under this Lease reason as a result thereof so long as Lessee shall have
promptly proceeded to cure the same (provided that in all events such breach or
failure shall have been cured within ninety (90) days after such notice by
Lessor)), then and in any such event Lessee shall be in default hereunder.
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Exhibit 10.16
17.2 Remedies. In the event of any default hereunder (including the
expiration of any applicable grace period set forth in this Lease), Lessor may
exercise any one or more of the following remedies: (a) Lessor may declare this
Lease terminated without any right on the part of Lessee to reinstate the same
by payment or other performance of the condition or conditions violated, any
law, usage or custom to the contrary notwithstanding; (b) Lessor may re-enter
and take possession of the Leased Premises without terminating this Lease and
may relet the Leased Premises for the account of Lessee; and (c) Lessor may
pursue such other rights and remedies which may be available to Lessor at law or
in equity. Lessee shall pay on demand the costs of Lessor in enforcing this
Lease, including reasonable attorneys' fees and costs. Lessor shall have an
obligation to mitigate its damages in the event of default by Lessee. In
addition, in the event of three (3) defaults hereunder in the payment of Rent
(including the expiration of any applicable grace period set forth in this
Lease) in any twelve (12)-month period, Lessor may at its option declare the
entire Annual Base Rent (discounted to present value as of the date such
accelerated Rent shall be paid, based on a discount rate for the balance of the
Lease Term (exclusive of any unexercised options) to be immediately due and
payable, and the same shall thereupon at once become due and payable as if by
the terms of this Lease it were all payable in advance. Such acceleration shall
be negated if, after such acceleration, Lessee shall have surrendered and
vacated the Leased Premises in accordance with the terms of this Lease within
thirty (30) days after such acceleration and shall have paid all Rent to the
date of such surrender and vacation, provided that the foregoing shall not be
construed to limit other damages to which Lessor may be entitled, including
those based on the failure of Lessor to receive Rent or profits based thereon
for periods after the surrender of the Leased Premises or the termination of
this Lease. In addition, in the event of any default hereunder, Lessee agrees
that Lessor's damages shall not have been mitigated by virtue of any leasing of
any property of Lessor other than the Leased Premises, Lessee hereby
acknowledging that Lessor shall be entitled to lease any other property of
Lessor without any obligation first to attempt to relet the Leased Premises. In
addition, Lessee acknowledges that Lessor's reletting of the Leased Premises may
not mitigate Lessor's damages if such reletting also could have been effected in
other property of Lessor.
17.3 Default Interest. Any Rent or other sum payable under this Lease
shall bear interest at the rate per annum equal to the lesser of (a) five
percent (5%) in excess of the rate per annum announced from time to time by
Mellon Bank, N.A., or its successor as its "prime rate" or similar rate, or (b)
the highest rate remitted by law. Such rate of interest shall apply to such
unpaid Rent and other sums until paid irrespective of whether judgment may have
been entered therefor.
17.4 [DELETED].
17.5 CONFESSION OF JUDGMENT FOR POSSESSION. UPON EACH AND EVERY BREACH
OR DEFAULT HEREUNDER, LESSEE HEREBY FURTHER AND ANY PERSON HOLDING UNDER LESSEE
IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY AT ANY COURT OF RECORD WITHIN
THE COMMONWEALTH OF PENNSYLVANIA EITHER IN ADDITION TO OR WITHOUT JUDGMENT FOR
THE AMOUNT DUE ACCORDING TO THE TERMS OF THIS LEASE, TO APPEAR FOR LESSEE AND
CONFESS JUDGMENT FORTHWITH AGAINST LESSEE AND IN FAVOR OF LESSOR IN EJECTMENT
FOR THE LEASED PREMISES AND THE IMMEDIATE ISSUING OF A WRIT OF POSSESSION FOR
THE LEASED PREMISES PURSUANT TO WHICH LESSOR MAY WITHOUT NOTICE RE-ENTER AND
EXPEL LESSEE AND ANY PERSON HOLDING
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Exhibit 10.16
UNDER LESSEE FROM THE LEASED PREMISES. NO SINGLE EXERCISE OF THE FOREGOING
WARRANT OR POWER TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST THE POWER,
WHETHER OR NOT SUCH EXERCISE SHOULD BE HELD BY ANY COURT TO BE INVALID, VOIDABLE
OR VOID, AND THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE EXERCISED FROM
TIME TO TIME AS LESSOR SHALL ELECT, AND, IN EACH CASE, THIS LEASE OR A TRUE COPY
THEREOF SHALL BE A SUFFICIENT WARRANT OF ANY PERSON.
17.6 Cumulative Remedies. The rights and remedies of Lessor hereunder
shall be cumulative and not exclusive, and Lessor shall not be put to any
election of remedies. The rights and remedies of Lessor hereunder are in
addition to and not in derogation of the rights and remedies otherwise available
to Lessor by law or in equity or otherwise.
17.7 Survival. All representations, warranties, covenants, conditions
and agreements of the parties contained in this Lease shall survive the
termination or expiration of the Lease Term, and the parties shall have and
enjoy all rights and remedies with respect thereto notwithstanding such
expiration or termination. In addition, such representations, warranties,
covenants, conditions and agreements and the parties' rights and remedies with
respect thereto shall survive Lessee's surrender and/or vacation of the Leased
Premises, whether or not the same may be accepted by Lessor, and whether or not
Lessor may thereafter re-let the Leased Premises.
ARTICLE XVIII
WAIVER
18.1 Waiver. The waiver by either Lessor or Lessee of any breach of any
term, covenant or condition of this Lease to be performed by the other shall not
be deemed to be a waiver of any subsequent breach of this Lease nor shall any
waiver authorize the nonobservance of any other occurrence of the same or of any
other covenant or condition thereof, nor shall the acceptance of rent by the
Lessor at any time when the Lessee is in default under any covenant or condition
hereby be construed as a waiver of any such default. To be effective, a waiver
of any such breach or default hereunder must be in writing signed by the party
to be charged with such waiver.
ARTICLE XIX
CONDEMNATION
19.1 Condemnation. In the event that the Leased Premises or the
Building, or such portion thereof as shall prevent reasonable use of the Leased
Premises by Lessee, shall be taken or condemned for any public or quasi-public
use or purpose by a competent authority in expropriation proceedings, or by any
right of eminent domain, or conveyed to such competent authority in lieu of such
taking condemnation, then this Lease shall terminate as of the date title vests
pursuant to such taking or conveyance. The entire compensation or award
attributable to any taking or condemnation of the Property or any portion
thereof, or the consideration for such conveyance shall belong to Lessor without
any deduction therefrom for any present or future estate or other right of
Lessee, and Lessee hereby assigns to Lessor all its right, title and interest in
and to any such award. Lessee shall, however, be entitled to such award as may
be allowed for moving expenses, fixtures and other equipment installed by it and
any other compensation allowed under the laws of the Commonwealth of
Pennsylvania, but only if such award or other compensation shall be in
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Exhibit 10.16
addition to the award otherwise available to or for the benefit of Landlord. If
Lessee's business is not so materially and substantially curtailed by taking
then this Lease shall continue as to that portion of the Leased Premises
remaining after the taking with the Rent being reduced pro-rata for the square
footage of the Leased Premises taken.
ARTICLE XX
NOTICES
20.1 Notice Addresses. Whenever in this Lease there shall be required
or permitted that notice or demand be given or served to either party to this
Lease, such notice or demand shall be given in writing, by certified or
registered U.S. Mail, return receipt requested, by recognized overnight courier
with receipted delivery to the applicable address or addresses set forth hereto,
or to such other addresses as may be designated by notice given pursuant to this
section. All notices shall be deemed given when delivered to the applicable
address or addresses or when such delivery is refused, as indicated by return
receipts or other evidence:
To Lessee: UBICS Inc.
#000 Xxxxxx Xxxxxx Xxxxx
0000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: M B Hira
Phone # 000-000-0000 (direct line)
Phone # 0-000-000-0000
Fax # 000-000-0000
To Lessor: Stealth Technology Associates
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Phone # 000-000-0000
Fax # 000-000-0000
ARTICLE XXI
NON-RECORDATION
21.1 Non-Recordation. Neither this Lease nor any memorandum hereof or
reference hereto shall be recorded by Lessee.
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Exhibit 10.16
ARTICLE XXII
EXONERATION
22.1 Exoneration. Neither Lessor nor any partner or shareholder in
Lessor, nor any director, officer or other party with interests in Lessor or any
such partner or shareholder shall be subject to personal liability for any of
the covenants, representations or warranties of Lessor pursuant or related to
this Lease, or for any negligent acts or omissions relating to the Leased
Premises or any other portion of the Property or any condition or use thereof or
event or activity therein or thereon, and except to the extent recourse shall be
further limited by the other terms of this Lease, Lessee shall look solely to
the equity of Lessor in interest in the Property and the rents and profits
derived therefrom for the satisfaction of the remedies of Lessee for any such
matters.
ARTICLE XXIII
BINDING EFFECT
23.1 Binding Effect. Except as herein otherwise expressly provided, the
terms, conditions, covenants and provisions hereof shall be binding upon and
shall inure to the benefit of the heirs, executors, administrators, successors
and assigns of Lessor and Lessee, respectively. The references contained in this
Lease to successors and assigns of Lessee shall not be construed to constitute a
consent by Lessor to any assignment of this Lease by operation of law or
otherwise.
ARTICLE XXIV
CONSTRUCTION
24.1 Captions. The captions of the Articles throughout this Lease are
for convenience and reference only, and the words contained therein shall in no
way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the terms, conditions, covenants and provisions of
this instrument.
24.2 References. As used herein, the singular shall include the plural;
the use of masculine, feminine or neuter genders shall be deemed to include all
genders;. And any reference to the rights and authority of Lessor herein shall
include such of Lessor's agents, servants, or employees to whom Lessor may
delegate its rights or authority, and shall also include any mortgagee of Lessor
which has reserved or to whom Lessor has delegated any such right or authority.
24.3 Rules of Construction. This Lease shall be construed and
interpreted without regard to any presumption or rule of construction against
Lessor as the drafter of this Lease or otherwise.
ARTICLE XXV
ENTIRE AGREEMENT; AMENDMENTS
25.1 Entire Agreement. This Lease, together will all addenda, schedules
and Exhibits hereto, contains the entire agreement between the parties hereto,
and Lessee acknowledges and agrees that no agent, representative, salesman or
officer of Lessor has authority to make or has made any statement, agreement
representation, either oral or written, in connection therewith, modifying,
adding or changing
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Exhibit 10.16
the terms, conditions, covenants and provisions herein set forth. No dealings
between the parties or custom or usage of trade shall be permitted to
contradict, vary, add to or modify the terms, conditions, covenants and
provisions hereof. No modifications of or amendment of this Lease shall be
binding unless the same shall be in writing and signed by all of the parties
hereto.
ARTICLE XXVI
GOVERNING LAW
26.1 Governing Law. This Lease and the performance hereof shall be
governed, interpreted, construed and regulated by the laws of the Commonwealth
of Pennsylvania.
ARTICLE XXVII
PARTIAL INVALIDITY
27.1 Partial Invalidity. If any term, covenant, condition or provision
of this Lease, or the application thereof to any person or circumstance, shall
at any time or to any extent be or become invalid or unenforceable, nevertheless
the remaining terms, covenants, conditions and provisions of this Lease, and the
application thereof shall not be affected thereby and each remaining term,
covenant, condition and provision of this Lease shall be and remain valid and
enforceable to the fullest extent permitted by law.
ARTICLE XXVIII
BROKERAGE COMMISSION
28.1 Brokerage Commission. Lessor and Lessee each represent and warrant
to the other that there were no real estate agents or brokers involved with the
introduction of the parties or in the negotiation and execution of this Lease
other than Xxxxx & Xxxxx Real Estate Group, Inc., whose compensation shall be
paid by Stealth Technology Associates in accordance with such party's agreement
with such broker. Lessor and Lessee shall each hold the other harmless from any
claims for commissions, fees or compensation for this Lease transaction by any
other person or entity claiming to have acted as agent, representative or broker
for any of the parties to this Lease.
ARTICLE XXIX
SECURITY INTEREST IN LESSEE'S PROPERTY
29.1 [DELETED]
ARTICLE XXX
FORCE MAJEURE
30.1 Force Majeure. Time periods for Lessor's or Lessee's performance
of their respective obligations under this Lease other than the payment of Rent
or any other sums under this Lease by Lessee, shall be extended for periods of
time during which the nonperforming party's performance is prevented
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Exhibit 10.16
due to circumstances beyond the party's control, including without limitation,
strikes, embargoes, governmental regulations, labor or material shortages, acts
or omissions of other parties, acts of God, casualty, weather, war or other
strife.
ARTICLE XXXI
HOLDING OVER BY LESSEE
31.1 Holding Over. If Lessee shall hold over at the expiration or
termination of the Lease Term, such tenancy shall be deemed a month-to-month
tenancy if Lessor shall have consented thereto in writing and otherwise, at
Lessor's option, shall either be a tenancy at the sufferance of Lessor or a
trespass by Lessee. During such tenancy, Lessee agrees to be bound by all the
terms and conditions hereof and agrees to pay to Lessor, in addition to all
other Rent, an Annual Base Rent in the amount of one hundred fifty percent
(150%) of the Annual Base Rent which shall have been in effect for the last
month of the Lease Term prior to such expiration or termination.
ARTICLE XXXII
INDUSTRIAL PARK
32.1 Industrial Park. Lessee acknowledges that the Property is or is to
be a multi-tenant facility, and that from time to time such facility may be
expanded and further subdivided. Lessee agrees to be bound by the rules and
regulations of any association or park of which the Property may be a part and
shall pay Lessee's Pro Rata Share of any costs and charges imposed upon the
Property of Lessor as the owner thereof by such park or association.
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Exhibit 10.16
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties have caused this Lease to be duly executed by their authorized agents
and officers as of the day and year first above written.
WITNESS/ATTEST: LESSOR: STEALTH TECHNOLOGY ASSOCIATES
BY: Xxxxx & Scalo Real Estate
Group, Inc., Agent
BY: /s/ Xxxxx X. Xxxxx
------------------------- -----------------------------
Xxxxx X. Xxxxx, President
LESSEE: UBICS INC.
BY: /s/ Xxxxxxx X. Xxxx
------------------------- -----------------------------
M B Hira, President
26
