Exhibit 10.3
THIS LEASE AGREEMENT made this 15th day of April, 1998, by and between
Ammendale Commerce Center Limited Partnership (hereinafter referred to as
"Landlord") and Intermedial Communications, Inc., (hereinafter referred to as
"Tenant").
WITNESSETH:
1. Leased Premises.
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord for
the term, at the rental and upon the conditions set forth herein, all that
certain approximate 62,390 square feet of office and warehouse space in a
building known as 0000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, as shown and
described on the plan attached hereto as Exhibit A (hereinafter referred to as
the "Initial Premises"). Upon vacation of the adjacent space by the current
tenant (Scientific & Commercial Systems Corp.), Landlord shall tender to Tenant
and Tenant shall lease from Landlord, 11,857 square feet of contiguous space
("Additional Premises") for a total of 74,247 square feet. At any time during
the Lease Term, Tenant may also lease 1,500 rentable square feet of mezzanine
located in the Additional Premises ("Optional Premises") if requested in writing
by Tenant. Hereafter, the term "Premises" includes the Initial Premises and the
Additional Premises and the Optional Premises. Additionally, Landlord grants to
Tenant during the term the non-exclusive use, in common with others, of all non-
allocated parking areas within the property owned by Landlord of which the
Premises is a part for the accommodation and parking of automobiles as required
by Tenant in conducting normal business activities of Tenant, its officers,
agents, employees and visitors. Landlord reserves the right, however, to
designate certain portions of the parking areas for parking of trucks, vans and
other vehicles, and to designate for the specific account of Tenant specific
parking areas or spaces constructed around, within or under the buildings on
Landlord's property. All parking areas and facilities which may be furnished by
Landlord in or near the Premises, including employee parking areas, truckway or
ways, loading docks, pedestrian sidewalks and ramps, landscaped areas, and other
areas and improvements which may be provided by Landlord for the general use, in
common with other tenants, their officers, agents, employees and visitors, shall
at all times be subject to the exclusive control and management of Landlord, and
Landlord shall have the right, from time to time, to establish, modify and
enforce reasonable rules and regulations with respect to all facilities and
areas mentioned in this Paragraph. Landlord shall have the right to police the
same, to change from time to time the areas, location and arrangement of parking
areas and other facilities referred to in this Paragraph; to change truck routes
to such extent as landlord may desire, provided that the Premises are adequately
served by the new route; to restrict parking by Tenant, its officers, agents and
employees to employee parking areas; to establish and from time to time to
change the level of parking surfaces; to close all or any portion of said areas
or facilities to such extent as may, in the opinion of Landlord's counsel, be
legally sufficient to prevent a dedication thereof or the accrual of any rights
to any person or to the public therein; to close temporarily all or any portion
of the parking areas or facilities; to discourage non-tenant parking; and to do
and perform such other acts in and to said areas and improvements, as in the use
of good business judgment, Landlord shall determine to be advisable with a view
to the improvement of the
convenience and use thereof by tenants, their officers, agents, employees and
visitors. Tenant agrees that it will cause its officers, agents and employees to
park their automobiles only in such areas as Landlord may from time to time
designate as employee parking areas, and that it will not use any part of the
parking area, nor permit the use thereof, in any manner which will obstruct the
driveways or thruways serving parking areas or any area exclusively allocated
for the use of others. During the term of this Lease, Tenant shall have the
right to a minimum of two hundred four (204) parking spaces.
2. Term and Possession.
2.1 Term. The term of this Lease for the Initial Premises shall commence
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on the date the Initial Premises is tendered to Tenant by Landlord, (the
"Initial Lease Commencement Date"), and shall end on the thirty first (31st) day
of July, 2000 unless terminated sooner pursuant to any provision hereof. The
term of this Lease for the Additional Premises shall commence on the date the
Additional Premises is tendered to Tenant by Landlord (the "Additional Lease
Commencement Date"), but in no event earlier than May 1, 1998, and shall end on
July 31, 2000 unless terminated sooner pursuant to any provision hereof.
2.2 Possession. If Landlord should be unable to give possession of the
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Premises on the Initial or Additional Lease Commencement Date because the
Premises are located in a building or Premises being constructed and which has
not been sufficiently completed to make the Premises ready for occupancy, or if
Landlord is unable to give possession of the Premises on the Initial or
Additional Lease Commencement Date hereof, by reason of holding over or
retention of possession of any tenant or occupant, or if repairs, improvements
or decoration of the Premises or the building of which the Premises form a part
are not completed, or for any other reason, Landlord shall not be subject to any
liability for failure to give possession on said date. Under such circumstances,
the rent reserved and covenanted to be paid herein, shall not commence until the
possession of the Premises is tendered by Landlord with Landlord's notice to
Tenant that the same is ready for occupancy. Should tender of possession of the
Premises be later or earlier than the beginning date named, then, and in that
event, the beginning and ending date of this Lease shall be adjusted by letter
from Landlord to Tenant, to conform to the date of such tender of possession,
such as if the same had been originally named as the beginning date, and this
Lease shall run for the full term from the date of such tender of possession,
provided that no such failure to give possession on the Lease Commencement Dates
shall in any other respect affect the validity of this Lease or the obligations
of Tenant hereunder. If permission is given to Tenant to enter into possession
of the Premises, or to occupy space other than the Premises prior to the date
specified as the Lease Commencement Dates, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants and conditions of
the provisions of this Lease. Tenant's acceptance of possession of the Premises
shall be conclusive evidence that the Premises are in good order and
satisfactory condition at the time of possession thereof.
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3. Rent.
3.1 Rent. Tenant shall pay to Landlord as rent for the Initial Premises
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the initial annual sum of Five Hundred Fifty Two Thousand One Hundred Fifty One
and 50/100 Dollars ($552,151.50) (the "Base Rent") in monthly payments of Forty
Six Thousand Twelve and 62/100 Dollars ($46,012.62) (subject to proration for
partial months as hereinafter provided) in advance on the first day of each
calender month during the term hereof, the first installment payable on the
Initial Lease Commencement Date and the remaining installments payable, in
advance, on the first day of each month during the said term to and at the
office of Xxxxxxxx Xxxxxxx & Xxxxx Company, 000 Xxxxxxxxx Xxxxxx, #0000, Xxxxx
Xxxxx, Xxxxxxxx 00000, or at such other place as Landlord may from time to time
designate to Tenant in writing. Each monthly installment shall hereinafter be
referred to as the "basic monthly rental". Rent checks shall be made payable to
Landlord c/o Xxxxxxxx Xxxxxxx & Xxxxx Company unless Tenant is otherwise
directed by Landlord in writing. Should the term of this Lease commence on a day
other than the first day of a calendar month, the parties agree that the rental
for the first and last month of the term shall be prorated and rent for the
remaining months shall be due and payable on the first of the month as provided
above. Tenant shall pay to Landlord as rent for the Additional Premises the
initial annual sum of One Hundred Four Thousand Nine Hundred Thirty Four and
45/100 Dollars ($104,934.45) ("Base Rent") in monthly payments of Eight Thousand
Seven Hundred Forty Four and 54/100 Dollars ($8,744.54) payable in all respects
as set forth in this paragraph 3.1. Rent for the Additional Premises shall
commence on the Additional Lease Commencement Date. Rent for the Optional
Premises shall commence upon use of the Optional Premises by Tenant at the
square foot rate then being paid for the Additional Premises.
3.2 Late Charge. Tenant hereby recognizes and acknowledges that if rental
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payments are not received when due, Landlord will suffer damages and additional
expense thereby and Tenant therefore agrees that a late charge equal to five
percent (5.00%) of the basic monthly rental (including additional rent as
hereinafter provided), may be assessed by Landlord or its Agent as additional
rental. Furthermore, Landlord or its Agent shall have the right to require that
rental payments be made by certified or cashier's check.
3.3 Rental Escalation. Commencing on the first anniversary of the Initial
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and Additional Lease Commencement Date, the respective Base Rent shall be
increased by three percent (3%). Such increased Base Rent shall thereafter be
known as the Annual Rent. On each subsequent anniversary of the respective
Lease Commencement Date during the term of the Lease, Annual Rent in effect
shall be increased by three percent (3%).
3.4 Additional Rent. In addition to the basic monthly rental, Tenant
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shall pay Tenant's pro rated share of Operating Costs defined to be all expenses
relating to the Premises including, but not limited to, real estate taxes,
sales, franchise, business, corporation or any other taxes (except income taxes)
based on rents, utilities not separately metered to individual tenants,
maintenance (except where otherwise provided), repairs, operating supplies,
building services, litter removal,
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management fees not exceeding four percent (4%), labor for on-site management
and maintenance, and Landlord's insurance (as set forth in Paragraph 11),
operating supplies, snow removal, landscaping, litter removal from the entire
project, tools, materials, resurfacing, repainting, and restriping of parking
areas, car stops, and security, professional fees, and cost of capital
improvements, which in landlord's reasonable judgement will result in operating
cost savings. Tenant's pro rata share of Operating Costs shall be a fraction,
the numerator of which shall be the square footage of the Premises, and the
denominator of which shall be the total square footage in the Project. Said
fraction shall then be multiplied by the entire amount of Operating Costs to
determine the amount of such Operating Costs payable by Tenant. In order to
provide for payment by Tenant of Tenant's pro rata share of Operating Costs,
Landlord shall furnish to Tenant, prior to the Lease Commencement Date, or as
soon thereafter as is practicable, a written statement setting forth Landlord's
estimate of the operating expenses for the calendar year in which the Lease
Commencement Date occurs; thereafter, Landlord shall furnish to Tenant, on an
annual basis, a written statement setting forth Landlord's estimate of the
operating expenses for each succeeding calendar year. Tenant shall pay to
Landlord on or before the first day of each month of the term hereof, together
with its basic monthly rental, an amount equal to one-twelfth (1/12th) of
Landlord's estimated operating expenses in the calendar year in which this lease
commences and for each calendar year thereafter.
3.5 For the purposes of calculating additional rental as set forth in
Paragraph 3.4, at the close of each calendar year Landlord shall compute the
actual cost of operating the Project during the previous twelve (12) month
period. Landlord shall deliver to Tenant notice of such cost and the amount due,
if any, from Tenant no later than March 30th of the year immediately subsequent
to the year to which cost relates. Tenant shall reimburse Landlord within ten
(10) business days after notice of any deficiency between estimated Operating
Costs and the actual costs incurred. In the event there are overpayments by
Tenant, Landlord shall apply the excess to the next successive installment of
basic monthly rental and additional rental due under this Lease, unless there
are no further such payments due from Tenant, in which case Landlord shall pay
such excess to Tenant within thirty (30) days of notice to Tenant as set forth
above.
4. Security Deposit. [Intentionally Omitted]
5. Uses.
5.1 Tenant agrees continuously to use and occupy the Premises for office
use including uses ancillary thereto relating to the operation, installation,
maintenance, repair and replacement or telecommunications equipment in
compliance with all governmental laws and regulations relating thereto, and for
no other purpose. Tenant covenants to comply with the provisions of all recorded
covenants, conditions and restrictions, all building, zoning, fire and other
governmental laws, ordinances, regulations or rules applicable to the Premises,
and all requirements of the carriers of insurance covering the project. Tenant
shall not do or permit anything to be done in or about the Premises, or bring or
keep anything in the Premises that may increase the fire and extended coverage
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insurance premium upon the Project, injure the Project, constitute water, or be
a nuisance, public or private, or menace to tenants of adjoining premises or to
anyone else.
5.2 Tenant agrees that it has determined to Tenant's satisfaction that the
Premises can be used for the purpose for which they are leased and waives any
right to terminate this Lease in the event the Premises cannot be used for such
purposes, or for any reason may not be used for such purposes during the Lease
Term.
6. Utilities.
Tenant agrees to pay all utility charges incurred by it in connection with
its use and occupancy of the Premises, including, but not limited to,
electricity, fuel, gas, water, sewer and telephone (including equipment and
installation charges), to pay said charges as the same become due, and to
immediately transfer all utility accounts into its own name at the Lease
Commencement Date (or whenever Tenant occupies the Premises, if such occupancy
is prior to the Lease Commencement Date). Landlord shall have no liability
whatsoever due to interruption of service or failure of any utility service to
Tenant.
7. Condition of Premises.
Tenant accepts the Premises in their "as-is" condition upon the Initial
Lease Commencement Date or Additional Lease Commencement Date as the case may
be.
8. Maintenance and Repairs.
8.1 Structural Maintenance. Landlord shall be solely responsible for and
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shall maintain in good condition and repair roof, foundation, exterior walls, as
well as the underground pipes and conduits located beyond the boundaries of the
Premises, and the sprinkler system; and Landlord shall make all repairs which
become necessary by reason of any structural defect in the Premises. Landlord
shall not be required to make any repairs necessitated by reason of any act or
omission by Tenant, its employees, agents, licensees, invitees or anyone
entering the Premises by force, but if Landlord does make any such repairs,
Tenant agrees to promptly, upon demand, reimburse Landlord for the full costs
thereof. No liability shall be imposed on Landlord:
(1) because of any injury or damage to personal property;
(2) or because of any interference with the services and facilities listed
above;
caused by accidents or repairs, riots, strikes, or any other reason beyond the
control of Landlord; and Landlord shall be under no duty to restore any of such
services and facilities or to make any of the repairs for which Landlord is
obligated, except after receipt of written notice from Tenant of a need
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therefor, and there shall be a reasonable period of time within which Landlord
may make such repairs.
8.2 Other Maintenance and Repairs. Tenant shall, at its own expense,
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during the full term of this Lease, keep the Premises in good order and
condition, and make all repairs and do all acts of maintenance which become
necessary in or upon the Premises, including specifically but not limited to,
the doors and door jambs, both inside and outside, loading docks, windows, and
window casings and xxxxx, inside, plate or other glass windows and doors, and to
make, at Tenant's expense, all repairs and to do all acts or maintenance which
become necessary during the term of this Lease, and to replace all worn out and
broken parts of: the heating; plumbing; electrical systems and equipment; air
conditioning and sprinkler systems and equipment; and elevators, if any. Tenant
shall enter into service contracts at its own expense for the maintenance of the
heating system, as well as the air conditioning system, and elevators, if any.
If any such service contract should not be obtainable, Tenant agrees to have the
system or equipment not so covered inspected at least once each year by a
qualified serviceman.
8.3 Common Area Maintenance. At the sole expense of Tenant, and to be
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included as Operating Costs as described in Paragraph 3.4, Landlord shall be
responsible for and shall maintain in good condition and repair the parking lot,
paving, landscaping and other common areas of the building, and Landlord shall
be responsible for snow and ice removal from the parking lot, paving and
sidewalks. Landlord shall not be required to make any repairs necessitated by
reason of any act or omission by Tenant, its employees, agents, licensees or
invitees, all of whom shall be included in the term "Tenant" for purposes of
this subsection. If any repairs necessitated by reason of any act or omission by
Tenant are required then, if Landlord chooses to do so, Landlord may make
repairs and Tenant agrees promptly upon demand to reimburse Landlord for the
full costs thereof, or, at its option, Landlord may notify Tenant of the
necessity for such repairs, and Tenant shall repair or commence the repairs
within fifteen (15) days of receipt of such notice at Tenant's expense to
Landlord's reasonable satisfaction. No liability shall be imposed on Landlord
because of any damage to personal property or any injury, or because of any
interference with the services and facilities listed above, caused by accidents
or repairs, riots, strikes or any other reason beyond the control of Landlord.
Landlord shall be under no duty to restore any of such services and facilities
or to make any of the repairs for which Landlord is obligated, except after
receipt of written notice from Tenant of a need therefor. Landlord shall have a
reasonable period of time within which to commence such work.
8.4 Roof.
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(a) Tenant agrees that it will not permit, nor cause it agents, employees
or invitees to place anything on the roof or in the gutters and downspouts of
the building of which the Premises constitute a part, or to cut, drive nails
into or otherwise penetrate or mutilate the roof without Landlord's prior
written consent. Tenant will also be responsible for damage to the roof caused
by its employees or contractors. Tenant shall indemnify Landlord and hold
Landlord harmless against
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expenses incurred to permanently correct any damage to the roof resulting from
Tenant's violation of this Paragraph, as well as any consequential damages to
Landlord or any of the other tenants of the building of which the Premises are a
part. Landlord shall repair damage to the roof caused by Tenant's negligent acts
as defined in this paragraph and Tenant shall reimburse Landlord for all costs
and expenses incurred in making such repairs. Landlord or its agents may enter
the Premises at all reasonable hours to make said roof repairs. If Landlord
makes any expenditures, or incurs any obligation for the payment of money in
connection therewith, including, but not limited to, attorneys' fees for
instituting, prosecuting or defending any action or proceeding, such sums paid
or obligations incurred, with interest at the rate of twelve percent (12.00%)
per annum and costs, shall be deemed to be additional rent hereunder and shall
be paid by Tenant to Landlord within give (5) days or rendition of any xxxx or
statements to Tenant therefor. All rights given to Landlord in this Paragraph
shall be in addition to any other right or remedy of Landlord herein contained.
(b) Tenant shall not place mechanical or other equipment on the roof
without Landlord's prior written consent, which shall be conditioned in part
upon Landlord's approval of Tenant's plans and specifications for such
installations. The costs of any roof improvements made pursuant hereto shall be
at Tenant's sole cost and expense and shall result in no liens being placed
against the Premises or the building by which they are a part.
8.5 Assignment of All Warranties. Landlord agrees to assign to Tenant any
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and all warranties which are extended to Landlord resulting from the
construction of the demised premises and the tenant improvements installed
within those premises. Landlord agrees to aid Tenant in applying said
warranties in connection with the maintenance requirements under this Lease.
9. Alterations.
9.1 Installation. Tenant shall not make any alterations, additions,
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modifications or improvements to the Premises without the prior written consent
of Landlord, which consent will not be unreasonably withheld, conditioned or
delayed. If Tenant desires to make any such alterations, etc., plans for same
shall first be submitted to and approved by Landlord, and same shall be done by
Tenant, at its own expense. All alterations and additions to the Premises would
be performed by Tenant using Landlord approved contractors unless Landlord shall
otherwise agree in writing. As a condition of Landlord's consent to the use of
Tenant's contractor, Tenant or Tenant's contractor must evidence insurance
coverage to include: (a) Worker's Compensation Coverage and (b) Public Liability
and Property Damage Insurance in the amount of not less than One Million Dollars
in the aggregate. Tenant agrees that all such work shall be done in a good and
workmanlike manner, that the structural integrity of the building shall not be
impaired, that no liens shall attach to the Premises by reason thereof, and that
Tenant will secure all necessary permits pertaining to the aforementioned
alterations, modifications or improvements.
9.2 Ownership and Removal. The alterations, additions, modifications and
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improvements referred to in Paragraph 9.1, and consented to in writing by
Landlord, shall become part of the real
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property as soon as they are affixed thereto; however, Landlord may, at
Landlord's option, require that Tenant remove all or any part of said
alterations prior to the expiration of the Lease Term in a written notice to
Tenant at the time of the consent. If Landlord so requires, Tenant agrees, at
its own expense, to remove same and to restore the Premises to their original
condition, reasonable wear and tear excepted.
9.3 Diesel Generator. Tenant shall have the right to install, operate and
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maintain a diesel generator, at its expense, on a site approved by the Landlord.
The equipment will remain property of the Tenant and Tenant shall have the right
to remove said equipment at lease expiration.
10. Environmental.
(a) Tenant shall conduct all activity in compliance with federal, state
and local laws, statutes, ordinances, rules, regulations, orders and
requirements of common law concerning protection of the environment or human
health ("Environmental Laws"). Tenant shall also cause its subtenants (if
subtenants are permitted by this Lease or are hereafter approved by Landlord),
licensees, invitees, agents, contractors, subcontractors and employees to comply
with all Environmental Laws. Tenant and its permitted subtenants, licensees,
invitees, agents, contractors, and subcontractors shall obtain, maintain, and
comply with all necessary environmental permits, approvals, registrations and
licenses.
In addition to and not in limitation of the foregoing, Tenant, its
permitted subtenants, licenses, invitees, agents, contractors, subcontractors
and employees shall not generate, refine, produce, transfer, process or
transport Hazardous Material on, above, beneath or near the Premises, the
Building or the Land. As used herein, the term "Hazardous Materials" shall
include, without limitation, all of the following: (1) hazardous substances, as
such term is defined in the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA", 42 U.S.C. Section 9601 (14)), as amended by the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. Xx. 00-000, 000
Xxxx. 0000 (Xxx. 17, 1986) ("XXXX"); (2) regulated substances, within the
meaning of Title I of the Resource Conservation and Recovery Act, 42 U.S.C.
Sections 669-6991 (i), as amended by XXXX; (3) any element, compound or material
which can pose a threat to the public health or the environment when released
into the environment; (4) hazardous substances and controlled hazardous
substances as defined in the Maryland Environmental Code Xxx., Title 7, Subtitle
2, and "oil" as defined in Section 4-401 (c) of the Maryland Environment Code
Xxx.; (5) petroleum and petroleum byproducts; (6) an object or material which is
contaminated with any of the foregoing; (7) any other substance designated by
any of the Environmental Laws of a federal, state or local agency as detrimental
to the public health, safety and the environment.
(b) Tenant shall protect, indemnify and save Landlord harmless from and
against any and all liability, loss, damage, cost or expense (including
reasonable attorneys' fees) that Landlord may suffer or incur as a result of any
claims, demands, damages, losses, liabilities, costs, charges, suits, orders,
judgments or adjudications asserted, assessed, filed, or entered against
Landlord or any of
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the Building or the Land, by any third party, including without limitation, any
governmental authority, arising from Tenant's breach of Environmental Laws or
otherwise arising from Tenant's generation, refining, production, storage,
handling, use, transfer, processing, transportation, release spillage, pumping,
pouring, emission, emptying, dumping, discharge or escape of Hazardous Materials
on, from or affecting the Premises, the Building or the Land, including, without
limitation, liability for costs and expenses of abatement, correction, clean-up
or other remedy, fines, damages, response (including death) and property damage.
(c) Tenant, its permitted subtenants, licensees, invitees, agents,
contractors, subcontractor and employees shall not release, spill, pump, pour,
emit, empty, dump or otherwise discharge or allow to escape Hazardous Materials
onto the Land or Building, and Tenant shall take all action necessary to remedy
the results of any such release, spillage, pumping, pouring, emission, emptying,
dumping discharge, or escape.
(d) Tenant shall within forty eight (48) hours of receipt deliver to
Landlord copies of any written communication relating to the Building or the
Land between Tenant and any governmental agency or instrumentality concerning or
relating to Environmental Laws.
(e) Tenant's obligations under this Section shall survive the termination
or other expiration of this Lease.
11. Insurance.
11.1 Fire Insurance. Tenant agrees, in addition to the provisions of
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Paragraph 10, that it will not do anything that will cause Landlord's insurance
against loss by fire or other hazards, as well as public liability insurance, to
be canceled or that will prevent Landlord from procuring same from acceptable
companies and at standard rates. Tenant shall do everything reasonably possible
and consistent with the conduct of Tenant's business to obtain the lowest
possible rates for insurance on the Premises. If, however, the cost to Landlord
of obtaining insurance on the Premises (or the building in which the Premises
are located) is increased due to Tenant's occupancy thereof, Tenant agrees to
pay, promptly upon demand, as additional rental, any such increase.
11.2 Liability Insurance and Indemnification of Landlord. Landlord shall
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not be liable to Tenant for any injury, loss or damages to Tenant or to any
other person or property occurring upon the Premises or the approaches thereto
or the parking facilities in or adjacent thereto from any cause whatsoever.
Tenant agrees to indemnify and save Landlord harmless against and from any and
all liabilities, damages, expenses, including reasonable attorneys' fees, claims
and demands of every kind, that may be brought against it, for or on account of
any damage, loss or injury to persons or property in or about the Premises
during the term of this Lease, or during any occupancy by Tenant prior to the
Lease Commencement Date. Tenant further agrees to carry, at its own expense, at
all times during the term hereof:
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(a) Tenant's Insurance. Tenant shall carry and keep in full force and
effect at all times during this Lease, for the protection of Landlord and
Tenant, and any mortgagee of Landlord, and naming Landlord as additional
insured; Public Liability Insurance (Comprehensive General Liability or
Commercial General Liability) including Contractual Liability Insurance for
limits of not less than TWO MILLION DOLLARS ($2,000,000.00) each occurrence and
at least FIVE MILLION DOLLARS ($5,000,000.00) aggregate. Coverage can be
purchased through an individual policy or Umbrella policies, but the total shall
be not less than previously noted. Landlord shall be entitled to increase the
aforesaid limited amount during the term hereof (but not more than once in any
lease year) to commercially reasonable amounts of coverage.
(b) Plate Glass. Tenant shall carry full coverage plate glass insurance on
all plate glass in the premises, including the storefront. In the event of any
loss or damage to any of Tenant's plate glass, the proceeds shall be used by
Tenant towards the cost of replacing or repairing any property so damaged.
(c) Workers Compensation. Tenant shall carry Worker's Compensation
Insurance covering its employees in, on and about the demised premises as
required by any applicable law, regulation or statute in the jurisdiction where
the premises is located and Employers Liability coverage for limits not less
than $100,000.00/$500,000.00/$100,000.00.
(d) Insurance Policies. All insurance policies required to be obtained by
Tenant shall be issued by insurance companies acceptable to the Landlord with an
A.M. Best Policyholders Rating of not less than A and a Financial Rating of not
less than VIII licensed to do business in the jurisdiction where the premises is
located, and shall provide that such policies shall not be canceled, changed or
terminated without thirty (30) day's prior written notice to the Landlord.
Landlord shall be named as an additional insured on all such policies, with the
exception of the statutory Worker's Compensation coverage referred to
hereinabove. Tenant shall deliver to Landlord a Certificate of Insurance
evidencing such coverage prior to occupancy, and annually thereafter, and shall
upon demand deliver copies of such insurance policies to Landlord.
11.3 Tenant shall also obtain, at Tenant's expense, such increased amount
of existing insurance, and such other insurance coverage in such limits, as
Landlord from time to time may require and such other hazard insurance as the
nature and condition of the Premises may require in the reasonable judgment of
Landlord, to afford Landlord adequate protection for risks. If, on account of
the failure of Tenant to comply with the foregoing provisions, Landlord is
adjudged a coinsurer by its insurance carrier, then any loss or damage Landlord
shall sustain by reason thereof shall be borne by Tenant and shall be
immediately paid by Tenant upon receipt of a xxxx thereof and evidence of such
loss. Landlord makes no representation that the limits of liability specified to
be carried by Tenant under the terms of this Lease are adequate to protect
Tenant against Tenant's undertaking under this Paragraph, and in the event
Tenant believes that any insurance coverage called for under this Lease is
insufficient, Tenant shall provide at its own expense, such additional insurance
as Tenant deems adequate.
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12. Landlord's Liability.
Notwithstanding anything to the contrary contained in this Lease, Tenant
shall look only to Landlord's ownership in the Building for satisfaction of
Tenant's remedies for the collection of a judgment (or other judicial process)
requiring the payment of money by Landlord in the event of any default by
Landlord hereunder, and no other property or assets of the partners or
principals of Landlord, disclosed or undisclosed, shall be subject to levy,
execution or the enforcement procedure for the satisfaction of Tenant's remedies
under or with respect to this Lease, the relationship of Landlord and Tenant
hereunder or Tenant's use or occupancy of the Premises. If any provision of this
Lease either expressed or implied obligates Landlord not to unreasonably
withhold its consent or approval, an action for declaratory judgment or specific
performance will be Tenant's sole right and remedy in any dispute as to whether
Landlord has breached such obligation. Landlord and Tenant shall not be deemed
by virtue of this Lease to be partners or joint venturers, and their
relationship hereby established is deemed to be only that of lessor and lessee,
respectively.
13. Trash Storage.
Tenant hereby covenants to contain all trash and debris generated in
conjunction with its use of the Premises in containers approved by Landlord and
in locations approved by Landlord with such screening as may be required by
Landlord so as not to constitute a safety or fire hazard and to contract for its
removal on a no less than weekly basis. Should Tenant violate this covenant,
Landlord may take such corrective action as it shall deem necessary for the
storage and removal of such trash and debris and Tenant shall pay the costs and
expenses of such corrective action as additional rent immediately upon demand
therefor in accordance with the provisions of this Lease.
14. Signs.
Landlord shall provide all exterior signs at the cost and expense of
Tenant. Landlord shall provide Tenant with samples of the exterior signage
available for the Premises and Tenant shall specify from these samples the
design of its specific exterior sign, subject to the approval of Landlord. No
sign, advertisement or notice shall be inscribed, painted, affixed or otherwise
displayed on any part of the outside or the inside of the Premises or the
building of which the Premises are a part, unless Landlord shall have approved
the sign, advertisement or notice in writing prior to installation of the same,
specifying the location, number, size, color and style of the sign,
advertisement or notice. If any sign, advertisement or notice is exhibited by
Tenant without having first obtained Landlord's approval thereof, Landlord shall
have the right to remove the same and Tenant shall be liable for any and all
expense incurred by Landlord in said removal. Landlord shall have the right to
prohibit any advertisement of Tenant which in its opinion tends to impair the
reputation of the building of which the Premises are a part or its desirability
as a high-quality industrial building, and upon written notice from Landlord,
Tenant shall immediately refrain from and discontinue any such advertisement. No
signs made of paper and visible from outside of the Premises shall be allowed in
the Premises. No mobile sign, such as may be affixed to the side of a
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truck or a trailer or a mobile platform shall be permitted in the parking area.
The existing exterior signage is deemed to be "pre-approved" by the Landlord.
15. Tenant's Equipment.
Landlord shall have the right in a reasonable manner, to prescribe the
weight and position of inventory and of other heavy equipment or fixtures, which
shall, if considered necessary by Landlord, stand on plank strips to distribute
the weight. Any and all damage or injury to the Premises, due to Tenant's
equipment being on the Premises, shall be repaired by and at the sole cost of
Tenant. Tenant shall not install or operate any machinery whose installation or
operation may affect the structure of which the Premises are a part without
having obtained the prior written consent of Landlord. Further, Tenant shall not
install any other equipment of any kind or nature whatsoever which shall or may
necessitate any changes, replacements or additions to, or in the use of, the
water system, heating system, plumbing system, air-conditioning system or
electrical system of the Premises or the building of which the Premises are a
part without first obtaining the prior written consent of Landlord. Business
machines and mechanical equipment belonging to Tenant which cause noise or
vibration that may be transmitted to the structure of the building of which the
Premises are a part, or to any space therein, to such a degree as to be
objectionable to Landlord or to any tenant, shall be installed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate such noise and vibration. Tenant agrees to remove
promptly from the sidewalks and other areas adjacent to the building of which
the Premises are a part any of Tenant's furniture, equipment, inventory or other
material delivered or deposited there.
16. Permits - Compliance with Laws.
16.1 Permits. Tenant shall, at its own expense, promptly obtain from the
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appropriate governmental authorities any and all permits, licenses and the like
required to permit Tenant to occupy the Premises for the purposes herein stated.
This requirement shall not relieve Tenant of its liability for rent from the
Lease Commencement Date hereinabove set forth.
16.2 Compliance with Laws. Tenant shall thereafter promptly comply with
--------------------
all statutes, laws, ordinances, orders, rules, regulations and requirements of
the Federal, State and local governments and of the Board of Fire Underwriters
applicable to Tenant's use of the Premises, for the correction, prevention and
abatement of nuisances or violations in, upon or connected with the Premises
during the term of this Lease.
17. Assignments and Subletting.
Tenant agrees that it will not transfer, assign or sublet the Premises, in
whole or in part, without Landlord's prior written consent. Transfer of the
majority of the stock of a corporate Tenant, or all general partnership
interests in a partnership Tenant, shall be deemed an assignment of this
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Lease. Landlord agrees that it will not unreasonably withhold its consent, and
if such consent is given, Tenant shall not be relieved from any liability under
this Lease. Tenant further agrees that if it intends to assign or sublet the
entire Premises, or a portion of the Premises for the balance of the term of
this Lease, it will first notify Landlord in writing and Landlord, at its
option, may accept a surrender of the Premises, in which event, Landlord shall
release Tenant from any further liability under this Lease. Landlord shall
notify Tenant of its decision within fifteen (15) days of receipt of notice by
Tenant of its intent to assign or sublet. In all events, Landlord's rights to
assign this Lease are and shall remain unqualified, and following any assignment
hereof by Landlord, all obligations of the assigning Landlord to Tenant pursuant
hereto shall cease and terminate, and Tenant shall look solely to the assignee
for performance of Landlord's duties hereunder. Tenant shall have the right,
with notice to Landlord to assign this lease to any company controlling or
controlled by or under common control as the Tenant so long as Tenant remains
liable under the terms of this Lease.
18. Subordination.
Tenant accepts this Lease, and the tenancy created hereunder, subject and
subordinate to any ground or master leases, mortgages, deeds of trust, ground or
master leasehold mortgages or other security interests now or hereafter
constituting a lien upon, or affecting, the improvements of which the Premises
form a part, or the land, or any part thereof. Tenant shall, at any time
hereafter, on request, execute any instruments, leases or other documents that
may be required by any mortgage, mortgagee, deed of trust, trustee or underlying
owner or Landlord hereunder to subordinate Tenant's interest hereunder to the
lien of any such mortgage or mortgages, deed or deeds of trust or underlying
ground or master lease, and the failure of Tenant to execute any such
instruments, leases or documents shall constitute a default hereunder.
19. Attornment and Non-Disturbance.
Landlord will deliver to Tenant lender's standard non-disturbance
agreement. Tenant agrees that upon any assignment or termination of Landlord's
interest in the Premises whether by mortgage, sale, foreclosure or otherwise,
Tenant will, upon request, attorn to the person or organization then holding
title to the Premises (the "Successor") and to all subsequent successors, and
shall pay to the Successor all rents and other monies required to be paid by
Tenant hereunder and perform all of the other terms, covenants, conditions and
obligations contained in this Lease, provided, however, that Tenant shall not be
so obligated to attorn unless, if Tenant shall so request in writing, such
Successor will execute and deliver to Tenant an instrument wherein such
Successor agrees that so long as Tenant performs all of the terms, covenants and
conditions of this Lease, Tenant's possession under the provisions of this Lease
shall not be distributed by any such Successor. Following any sale by Landlord
of the property of which the Premises are a part, all future obligations of the
assigning Landlord to Tenant shall cease and terminate and Tenant shall look
solely to the Successor for the performance of Landlord's duties hereunder.
20. Property Loss or Damage.
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20.1 Tenant hereby expressly agrees that Landlord shall not be responsible
in any manner for any damage or injury to the person or property of Tenant or
any other person or business caused, directly or indirectly, by (i) dampness or
water, whether due to a break or leak in any part of the roof, heating, plumbing
or sprinkler system within the Premises, or in the building in which the
Premises are located or due to any other cause; (ii) theft; (iii) fire or other
casualty; (iv) any other cause whatsoever, including but not limited to
interruption in service or supply of utilities.
20.2 Subject to the provisions of Xxxxxxxxx 00.0, Xxxxxxxx shall not be
liable for damage or injury to person or property of Tenant or of any other
person or business unless notice in writing of any defect (a) which Landlord has
under the terms of this Lease the duty to correct and (b) which has caused such
damage or injury, shall have been given in sufficient time before the occurrence
of such damage or injury reasonably to have enabled Landlord to correct such
defect, and even then only if such damage or injury is due to Landlord's gross
negligence.
20.3 In any event, Tenant shall look only to Landlord's ownership in the
Building and the land on which it is located for satisfaction of Tenant's
remedies for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default by Landlord
hereunder, and no other property or assets of Landlord or its partners or
principals, disclosed or undisclosed, shall be subject to levy, execution or
other enforcement procedures for the satisfaction of Tenant's remedies under or
with respect to this Lease, the relationship of Landlord and Tenant hereunder or
Tenant's use or occupancy of the demised premises.
21. Tenant's Failure to Perform.
In the event that Tenant fails, after fifteen (15) days written notice from
Landlord, to keep the premises in good condition and repair, or to commence and
continuously make required repairs, or to do any act or make any payment or
perform any term or covenant on Tenant's part required under this Lease or
otherwise fails to comply herewith, Landlord may, at its option, immediately, or
at any time thereafter and without notice, perform the same for the account of
Tenant (including entering the Premises at all reasonable hours to make repairs
and do any act or make any payment which Tenant has failed to do), and if
Landlord makes any expenditures, or incurs any obligations for the payment of
money in connection therewith, including, but not limited to, attorneys' fees in
instituting, prosecuting or defending any action or proceeding, such sums paid
or obligations incurred, with interest at the rate of twelve percent (12%) per
annum, and costs, shall be deemed to be additional rent hereunder and shall be
paid by Tenant to Landlord within five (5) days of rendition of any xxxx or
statement to Tenant therefor. All rights given to Landlord in this section shall
be in addition to any other right or remedy of Landlord contained.
22. Landlord's Right to Enter and Show Premises.
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22.1 Landlord's Right to Inspect and Repair. Tenant agrees to permit
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Landlord or Agent to enter the Premises at any reasonable time for the purpose
of determining the condition of the Premises and making repairs thereto, as
provided above in Paragraph 21.
22.2 Landlord's Right to Show Premises. Tenant agrees that Landlord may
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within the last four (4) months of the Lease Term, display a "For Lease" or "For
Sale" sign on the Premises and show prospects through the Premises at any
reasonable time.
23. Surrender at End of Term.
Except as otherwise provided in Paragraph 9.2, Tenant shall vacate the
Premises at the expiration or other termination of this Lease and shall remove
all goods and effects not belonging to Landlord and shall surrender possession
of the Premises in broom clean condition with all fixtures and systems thereof
in good repair, reasonable wear and tear and damage by fire or other unavoidable
casualty excepted. If Tenant shall fail to perform any of the foregoing
obligations, Landlord is hereby expressly authorized to do so on Tenant's behalf
and Landlord may sell such articles on the Premises as Landlord in its sole
discretion deems saleable, and may dispose of others in any manner which it
chooses. The proceeds of any such sale shall be applied toward the expenses thus
incurred and Tenant will receive net proceeds, if any, and agrees to pay any
remaining balance within five (5) days of Landlord's request therefor.
24. Holding Over.
If Tenant shall not immediately surrender possession of the Premises at the
termination of this Lease, Tenant shall become a month-to-month Tenant, at one
hundred fifty percent (150%) the basis monthly rental in effect during the month
prior to the termination of this Lease, said rental to be payable in advance.
Unless Landlord elects to accept such rental from Tenant, Landlord shall
continue to be entitled to re-take possession of the Premises without any prior
notice to Tenant. If Tenant shall fail to surrender possession of the Premises
immediately upon the expiration of the term hereof, Tenant hereby agrees that
all of the obligations of Tenant and all rights of Landlord applicable during
the term of this Lease shall be equally applicable during such period of
subsequent occupancy, whether or not a month-to-month tenancy shall have been
created as aforesaid. Tenant further agrees that it shall be liable for any
damages suffered by Landlord by reason of Tenant's failure to immediately
surrender the Premises.
25. Destruction - Fire or Other Casualty.
In case of partial damage to the Premises by fire or other casualty insured
against by Landlord, Tenant shall give immediate notice thereof to Landlord, and
Landlord, to the extent that insurance proceeds respecting such damage are
subject to and, in fact, are under the control and use of Landlord, shall
thereupon cause such damage to all property owned by Landlord to be repaired
with reasonable speed at the expense of Landlord, due allowance being made for
reasonable delay
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which may arise by reason of adjustment of loss under insurance policies on the
part of Landlord and/or Tenant, and for reasonable delay on account of strikes,
slowdowns or any other cause beyond Landlord's control. To the extent that the
Premises are rendered untenantable, the rent shall proportionately xxxxx,
provided the partial damage occurred without any fault or neglect on the part of
Tenant, those employing or retaining the services of Tenant, Tenant's servants,
employees, agents, licensees, invitees or visitors. If such partial damage is
due to the fault or neglect of Tenant or any of the abovementioned persons, or
to the extent that insurance proceeds respecting such damage are not subject to,
or are not under the control and use of, Landlord, the damage shall be repaired
by Landlord at Tenant's expense and there shall be no apportionment or abatement
of rent. In the event the damage shall be so extensive as to render it
uneconomical, in Landlord's opinion, to restore the Premises for the use of
Tenant specified in Paragraph 5 hereof, or Landlord shall decide not to repair
or rebuild the Premises, this Lease, at the option of Landlord, shall be
terminated upon written notice to Tenant, the rent shall, in such event, be paid
to or adjusted as of the date of such damage, the terms of this Lease shall
expire by lapse of time upon the third day after such notice is mailed, and
Tenant shall thereupon vacate the Premises and surrender the same to Landlord.
No such termination shall release Tenant from any liability to Landlord arising
from such damage or from any breach of the obligations imposed on Tenant
hereunder.
26. Eminent Domain.
If the entire Premises shall be substantially taken (either temporarily or
permanently) for public purposes, or in the event Landlord shall convey or lease
the property to any public authority in settlement of a threat of condemnation
or taking, the rent shall be adjusted to the date of such taking or leasing or
conveyance, and this Lease shall thereupon terminate. If only a portion of the
Premises shall be so taken, leased or condemned, and as a result of such partial
taking, Tenant is reasonably able to use the remainder of the Premises for the
purposes intended hereunder, then this Lease shall not terminate, but, effective
as of the date of such taking, leasing or condemnation, the rent hereunder shall
be abated in an amount thereof proportionate to the area of the Premises so
taken, leased or condemned. If, following such partial taking, Tenant shall not
be substantially able to use the remainder of the Premises for the purposes
intended hereunder, then this Lease shall terminate as if the entire Premises
had been taken, leased or condemned. In the event of a taking, lease or
condemnation as described in this Paragraph, whether or not there is a
termination hereunder, Tenant shall have no claim against Landlord other than an
adjustment of rent, to the date of the taking, lease or condemnation, and Tenant
shall not be entitled to any portion of any amount that may be awarded as
damages or paid as a result of, or in settlement of, such proceedings or threat.
27. Defaults - Remedies.
The occurrence of any one or more of the following events shall constitute
a material default and breach of this Lease by Tenant:
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(a) The vacating or abandonment of the Premises by Tenant and a failure to
continue to pay rent;
(b) The failure by Tenant to make any payment of rent or any other payment
required to be made by Tenant hereunder as and when due;
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by
Tenant other than those described in Paragraph (b) hereinabove, where
such failure shall continue for a period of five (5) business days
after written notice thereof from Landlord to Tenant; provided,
however, that if the nature of Tenant's default is such that more than
five (5) business days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such
cure within said five (5) business day period and thereafter,
diligently prosecutes such cure to completion;
(d) The making by Tenant of any general assignment or general arrangement
for the benefit of creditors, filing by or against Tenant of a
petition to have Tenant adjudged bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy
(unless in the case of a petition filed against Tenant, the same is
dismissed within sixty [60] days), the appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets
located in the Premises or Tenant's interest in this Lease where
possession is not restored to Tenant within thirty (30) days, or the
attachment, execution or other judicial seizure of substantially all
of Tenant's assets located at the Premises or Tenant's interest in
this Lease, where such seizure is not discharged within thirty (30)
days.
In the event of such material default or breach by Tenant, Landlord may, at
any time hereunder, with or without notice or demand, without limiting Landlord
in the exercise of any right or remedy which Landlord may have by reason of such
default or breach, proceed in the following manner:
(i) Terminate Tenant's right to possession of the Premises by any lawful
means, in which case Tenant's possession shall be terminated and
Tenant shall immediately surrender possession of the Premises to
Landlord. In such event, Landlord shall be entitled to recover from
Tenant all damages incurred by Landlord by reason of Tenant's default,
including, but not limited to, the cost of recovering possession of
the Premises; expenses of reletting, including necessary renovation or
alteration of the Premises; reasonable attorneys' fees; any real
estate commission actually paid; that portion of the Lease and
commission paid by Landlord pursuant to any agency agreement
applicable to the unexpired term of this Lease; and such other out-of-
pocket expenses as Landlord might incur. Unpaid installments of rent
or other sums shall bear interest from date due at the rate of twelve
percent (12.00%) per annum,
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after Tenant's right to possession has been terminated. No receipt of
money by Landlord from Tenant after the termination of this Lease,
the service of notice, the commencement of any suit or final judgment
or repossession shall automatically reinstate, continue or extend the
term of this Lease or affect any such notice, demand, suit or
judgment.
(ii) Maintain Tenant's right to possession in which case this Lease shall
continue in effect whether or not Tenant shall have abandoned the
Premises. In such event, Landlord shall be entitled to enforce all of
Landlord's rights and remedies under this Lease, including the right
to recover the rent as it becomes due hereunder, and reasonable
attorneys' fees.
(iii) Pursue any other remedy not or hereafter available to Landlord under
the laws or jurisdictional decisions of the state in which the
Premises are located.
All rights and remedies of Landlord herein enumerated shall be cumulative,
and none shall exclude any other right allowed by law. Landlord shall not be in
default unless Landlord fails to perform the obligations required of Landlord
within a reasonable time, but in no event sooner than thirty (30) days after
written notice by Tenant to Landlord specifying wherein Landlord has failed to
perform such obligations; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days is required for performance,
then Landlord shall not be in default if Landlord commences performance within
such thirty (30) days and thereafter diligently prosecutes the same to
completion.
28. Several Liability.
If Tenant shall be one or more individuals, corporations or other entities,
whether or not operating as a partnership or joint venture, then each such
individual corporation, entity, joint venture or partner shall be deemed to be
both jointly and severally liable for the payment of the entire rent and other
payments specified herein and all other duties and obligations hereunder.
29. Notices.
All notices, demands and requests required under this Lease shall be in
writing. All such notices shall be deemed to have been properly given if sent
by United States registered or certified mail, return receipt requested, postage
prepaid, addressed to Landlord at:
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LANDLORD TENANT
Ammendale Commerce Center Limited Partnership Intermedia Communications, Inc.
c/o Xxxxxxxx Xxxxxxx & Xxxxx Company 0000 Xxxxx Xxxx Xxxxx
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxx 00000
Suite 1000 Attention: Xxxxx Xxxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
and to Tenant at the Premises. Either party may designate a change of address
by written notice to the other party.
Notices, demands and requests which shall be served by registered or
certified mail in the manner aforesaid shall be deemed sufficiently served or
given for all purposes hereunder at the time such notice, demand or request is
mailed by United States registered or certified mail as aforesaid in any post
office or branch post office regularly maintained by the United States
Government.
30. Estoppel Certificate.
Within ten (10) days after request therefor by Landlord, its agents,
successors or assigns, Tenant shall deliver, in recordable form, a certificate
to any proposed mortgagee or purchaser, or to Landlord, together with a true and
correct copy of this Lease, certifying (if such be the case): (i) that this
lease is in full force and effect without modification; (ii) the amount, if any,
of prepaid rent and security deposit paid by Tenant to Landlord; (iii) that
Landlord has performed all of its obligations due to be performed under this
Lease and that there are no defenses, counterclaims, deductions, offsets
outstanding or other excuses for Tenant's performance under this Lease; and (iv)
any other fact reasonably requested by Landlord or such proposed mortgagee or
purchaser, or stating those claimed by Tenant. It is intended that any such
statement delivered pursuant to this Paragraph 30 may be relied upon by any
other prospective purchaser or mortgagee, Landlord, or any respective successors
and assigns of the aforementioned parties. Tenant's failure to deliver the
above-described certificate within the time set forth above shall be conclusive
upon Tenant: (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord; (ii) that there are not
uncured defaults in Landlord's performance and Tenant has no right of offset,
counterclaim, defenses or deduction against basic monthly rental of additional
rent or Landlord hereunder; (iii) that no more than one period's basic monthly
rental has been paid in advance; and (iv) that the amount of the security
deposit held by Landlord is as represented by Landlord.
31. Severability.
The parties intend this Lease to be legally valid and enforceable in
accordance with all of its terms to the fullest extent permitted by law. If any
term hereof shall be finally held to be invalid or unenforceable, the parties
agree that such term shall be stricken from this Lease, the same as if it never
had been contained herein. Such invalidity or unforceability shall not extend
to or otherwise
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affect any other term of this Lease and the unaffected terms hereof shall remain
in full force and effect to the fullest extent permitted by law, the same as if
such stricken term never had been contained herein. The above notwithstanding,
if any provision of this Lease shall be finally held to be invalid or
unenforceable, and such term substantially and adversely affects the amount of
rent to be received by Landlord, or the nature of Landlord's obligations to
Tenant or otherwise affects the economic bargain agreed to by Landlord in this
Lease, Landlord shall have the option of terminating this Lease. Such option
shall be exercised, if at all, by delivering notice to Tenant within thirty (30)
days after any final judgment declaring a provision of this Lease invalid or
unenforceable, stating a date of termination no sooner than ninety (90) days
from such notice.
32. Non-Waiver Clause.
The waiver by Landlord of any breach of any covenant or obligation by
Tenant under this Lease shall not be construed to be a waiver by Landlord of any
subsequent breaches by Tenant of the same covenant or obligation.
33. Accord and Satisfaction.
No receipt and retention by Landlord of any payment tendered by Tenant in
connection with this Lease shall give rise to or support or constitute an accord
and satisfaction, notwithstanding any accompanying statement, instruction or
other assertion to the contrary (whether by notation on a check or in a
transmittal letter or otherwise), unless Landlord expressly agrees to an accord
and satisfaction in a separate writing duly executed by the appropriate persons.
Landlord may receive and retain, absolutely and for itself, any and all payments
so tendered, notwithstanding any accompanying instruction by Tenant to the
contrary. Landlord shall be entitled to treat any such payments as being
received on account of any item or items of Base Rent, interest, expense or
damage due in connection herewith, in such amounts and in such order as Landlord
may determine at its sole option.
34. Captions.
All headings in this Lease are intended for convenience of reference only
and are not to be deemed or taken as a summary of the provisions to which they
pertain or as a construction thereof.
35. Successors and Assigns.
The covenants, conditions and agreements contained in this Lease shall bind
and insure to the benefit of Landlord and Tenant, and their respective heirs,
distributees, executors, administrators, successors and except as otherwise
provided in this Lease, their assigns.
36. Governing Law.
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This Lease was made in the State of Maryland and shall be governed by and
constructed in all respects in accordance with the laws of the State of
Maryland.
37. Incorporation of Prior Agreements.
This Lease contains all agreements of the parties with respect to any
matters contained herein. No prior agreement or understanding pertaining to any
such matter shall be affected. This Lease may be modified only in writing and
signed by the parties in interest at the time of the modification.
38. Cumulative Remedy.
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
39. Agency.
Landlord, in appointing Xxxxxxxx Xxxxxxx & Xxxxx Company its Agent, herein
does so for and in consideration of its services in securing Tenant herein and
the negotiation of this Lease, and agrees to pay said Agent herein and the
agreement under separate cover. Landlord and Tenant represent that there are no
other brokers involved in this transaction, and each party hereby agrees to
indemnify the other against any claims of any other broker other than CB
Commercial and Xxxxxxxx Xxxxxxx & Xxxxx Company in violation of such
representation.
40. Miscellaneous.
(a) As used in this Lease, and where the context requires: (1) the
masculine shall be deemed to include feminine and neuter and vice-versa; and (2)
the singular shall be deemed to include the plural and vice-versa.
(b) Landlord and Tenant do hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matter whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises, and/or any claim of injury or damage, or any statutory remedy.
(c) Tenant covenants and agrees that it shall not attach or place awnings,
antennas or other projections to the outside walls or any exterior portion of
the improvements of which the Premises are a part except as provided in
Paragraph 8.4(b) hereof. No curtains, blinds, shades or screens shall be
attached to or hung in, or used in connection with any window or door of the
Premises, without the prior written consent of Landlord.
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(d) Tenant, Tenant's servants, agents, invitees, employees and licensees
shall not park on, store on or otherwise utilize any parking or loading areas in
the Project except as provided in this Lease or by a separate writing from
Landlord.
(e) The Premises has a sprinkler system and Tenant agrees that it will, at
all times, maintain a minimum temperature of 50 degrees Fahrenheit to prevent
freezing of pipes.
(f) Tenant hereby acknowledges that Landlord reserves the right to subject
the Premises and the Project of which it is a part to a condominium regime
pursuant to the provision of the applicable Maryland statute and, that upon such
submission the leasehold estate created hereby shall be fully subject and
subordinated to such condominium regime; provided, however, that so long as
Tenant is not in default under the terms of this Lease or under the terms of the
applicable condominium documents (including, without limitation, declaration,
by-laws, and rules and regulations), Tenant's leasehold estate created hereby
shall not be disturbed by virtue of the creation of such condominium regime.
Without limiting the generalities of the rights of Landlord or its Agent to
enter the Premises as provided in this Lease, Landlord or its Agent shall be
entitled, upon reasonable notice given to Tenant, to enter the Premises for such
actions as may be necessary in order to effect the submissions of the Premises
to a condominium regime, including, without limitation, the performance of
inspections, measurements, renovations and such other acts as will not have a
material adverse effect on the rights of Tenant hereunder and Tenant agrees to
execute any documents reasonably necessary to submit the Premises to a
condominium regime.
41. Examination of Lease.
Submission of this Lease for examination or signature by Tenant shall not
constitute a reservation of or option for lease, and the same shall not be
effective as a lease or otherwise until execution and delivery hereof by
Landlord and Tenant.
42. Authority.
Landlord and Tenant hereby covenant that they have full right, power and
authority to enter into this Lease upon the terms and conditions herein set
forth.
43. Indemnification.
Tenant shall, to the extent permitted by law, indemnify and save Landlord
harmless against and from any and all claims, damages, costs and expenses,
including reasonable attorneys' fees, arising by reason of the conduct or
management of the business conducted by Tenant in the Premises, or from any
breach or default on the part of Tenant in the performance of any covenant,
condition or agreement on the part of Tenant to be performed pursuant hereto, or
from any act or negligence of Tenant, its Agent, contractors, servants,
employees, sublesses, concessionaires or licensees in or about the Premises.
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44. Renewal Option.
Provided Tenant has not been in default during the initial or renewal term
of this Lease, Tenant shall have the option, upon six (6) months written notice,
to renew the lease for the Premises for two (2) additional three (3) year terms.
All terms and conditions of the Lease shall remain in effect during the renewal
period except that the rental rate charged at the commencement of each renewal
period shall be the then current rental rate in the market for comparable space.
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45. ADA.
Landlord shall be responsible for compliance with the Americans with
Disabilities Act ("ADA") with regard to the parking lot, sidewalks and main
entry to the Premises; Tenant shall be responsible for compliance with ADA for
the Premises.
46. Tenant's Additional Responsibilities.
In addition to Tenant's obligations as set forth in this Lease, Tenant
shall also be responsible for the items set forth in Exhibit B to this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this lease as of the day and year first above written.
SIGNED at______________________________,this 15th day of April, 1998.
WITNESS: LANDLORD:
Ammendale Commerce Center
Limited Partnership
/s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------- ---------------------
Xxxxxxxx X. Xxxxxxx Xxxxxx Xxxxxxxxx, General Partner
WITNESS: TENANT:
Intermedia Communications, Inc.
/s/ X.X. Xxxxxx By:/s/ Xxxxxx X. Xxxxx
--------------- -------------------
X.X. Xxxxxx Xxxxxx X. Xxxxx
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