EXHIBIT 10.7
SUBLEASE
between
DIGITAL EQUIPMENT CORPORATION, Sublandlord
and
XXXXXXX MANAGEMENT SYSTEMS CORPORATION, Subtenant
Dated as of October 31, 1995
10001 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
SUBLEASE
BY DIGITAL EQUIPMENT CORPORATION, Sublandlord
TO XXXXXXX MANAGEMENT SYSTEMS, CORPORATION, Subtenant
DATED: AS OF OCTOBER 31, 1995
00000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
Page
----
1. Demise..................................................................4
2. Term....................................................................4
3. Delivery of Sublet Premises.............................................4
4. Rent....................................................................5
a. Base Rent.....................................................5
b. Additional Rent...............................................5
5. Utilities...............................................................6
6. Use.....................................................................6
7. Assignment and Subletting...............................................7
8. Insurance...............................................................8
9. Indemnification.........................................................8
10. Maintenance and Services................................................9
11. Prime Lease.............................................................9
a. Incorporation of Prime Lease..................................9
b. Performance of Prime Lease....................................10
c. Consents......................................................10
d. No Sublandlord Obligation.....................................10
e. Termination...................................................10
12. No Alterations..........................................................10
13. Defaults and Remedies...................................................11
14. Surrender...............................................................13
15. Notices.................................................................13
16. Effect..................................................................13
17. Applicable Law..........................................................13
18. Modification............................................................14
19. Severability............................................................14
20. No Waiver...............................................................14
21. Broker..................................................................14
22. Mechanics Liens.........................................................14
23. Confidentiality.........................................................14
24. Security Deposit........................................................14
25. Consent of Landlord.....................................................14
EXHIBIT A - PRIME LEASE......................................................15
EXHIBIT B - AMENDMENT TO PRIME LEASE.........................................16
EXHIBIT D - CONSENT OF LANDLORD..............................................19
EXHIBIT E - CONSENT OF LANDLORD'S MORTGAGEES.................................20
EXHIBIT F - OFFICE SYSTEMS FURNITURE.........................................21
SUBLEASE
THIS SUBLEASE is made as of the 31st day of October, 1995, by and
between Digital Equipment Corporation, a Massachusetts corporation, with an
address at 000 Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, ("Sublandlord")
and Xxxxxxx Management Systems, Corp., a Maryland corporation, with an address
at, Lanham, Maryland ("Subtenant").
WITNESSETH
WHEREAS, Sublandlord is the tenant under a certain lease from Liberty
Property Trust, as successor in interest to Xxxxx & Associates - Metro East
Executive Terrace Limited Partnership, ("Landlord") dated May 31, 1985, a copy
of which is attached as Exhibit A, as amended by Reinstatement and Amendment of
Agreement of Lease dated July 22, 1992 and attached as Exhibit B, (such lease,
as amended, is hereinafter referred to as the "Prime Lease"). The premises
leased to Sublandlord under the Prime Lease are a portion of the building (the
"Building") at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx, which premises are more
particularly described in Exhibit C attached hereto (the "Land"), and on Page 1
of the Prime Lease (the "Leased Premises"); and
WHEREAS, Subtenant wishes to sublease from Sublandlord the Leased
Premises shown on the plan attached hereto as Exhibit D, containing
approximately 23,777 square feet of floor area, as such term is defined in the
Prime Lease, (the "Sublet Premises"), and Sublandlord is willing to sublet the
Sublet Premises to Subtenant;
NOW, THEREFORE, the parties hereto agree as follows:
1. Demise. Sublandlord hereby subleases the Sublet Premises to Subtenant and
Subtenant hereby sublets the Sublet Premises from Sublandlord subject to
the terms and conditions hereinafter stated.
2 Term. The term of this Sublease (the "Sublease Term") shall be one (1)
year and ten (10) months, beginning with the first day of November, 1995,
(the "Commencement Date") and ending with the last day of August, 1997.
3. Delivery of Sublet Premises. Subtenant expressly acknowledges that it has
inspected the Sublet Premises and is fully familiar with the physical
condition thereof, and agrees to accept possession of the Sublet Premises
in its "as is" condition. Subtenant acknowledges that Sublandlord has made
no representations or warranties regarding the Sublet Premises, and that it
has relied on no such representations or warranties in accepting the Sublet
Premises. Subtenant acknowledges that Sublandlord shall have no obligation
to do any work in or to the Sublet Premises, or to incur any expense in
connection therewith, in order to make them suitable and ready for
occupancy and use by Subtenant.
Sublandlord acknowledges that Subtenant intends to make certain
improvements to the Sublet Premises ("Subtenant's Work") so as to adapt
them for Subtenant's intended uses.
Prior to commencing the Subtenant's Work, Subtenant shall submit plans and
specifications therefor to Sublandlord and obtain Sublandlord's written
approval thereof, which approval shall not be unreasonably withheld or
delayed but which may be conditioned by Sublandlord in its reasonable
discretion. If the terms of the Prime Lease require Sublandlord to obtain
Landlord's consent for Subtenant's Work, Sublandlord shall use reasonable
efforts (not involving the payment of money, unless Subtenant pays any such
money) to obtain approval therefor from Landlord. All Subtenant's Work
shall be done in accordance with the terms and conditions of the Prime
Lease. Without limiting the foregoing, Subtenant shall obtain all necessary
licenses and permits, shall perform Subtenant's Work in accordance with all
laws, by-laws, rules, regulations, licenses and permits. All of Subtenant's
Work shall remain on the Sublet Premises upon the expiration or termination
of this Sublease unless Sublandlord otherwise notifies Subtenant at the
time of approval by Sublandlord of Subtenant's plans and specifications.
4 Rent
a. Base Rent. Subtenant shall pay to Sublandlord base rent ("Base Rent")
without offset, deduction or demand in the amount of $10.00 per square
foot of rentable area per year, or $237,770 per year for each Lease
Year, payable in advance in equal monthly installments of $19,814.17
commencing on the Commencement Date and continuing on the first day of
every month thereafter.
Base Rent shall be apportioned for any partial calendar month
occurring at the beginning or end of the Sublease Term.
All payments hereunder shall be made at the following address:
Digital Equipment Corporation
000 Xxxxxxxxxx Xxxx., Xxxxx
XX00/X0 2
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attention: Lease Administrator
or at such other address as Sublandlord may from time to time
designate by written notice to Subtenant
b. Additional Rent.
In the event that Sublandlord believes that Subtenant is consuming
electricity in an amount above and beyond normal office usage then
Sublandlord shall be entitled, at its expense, to conduct a "connected
load study" and a "use survey" to estimate the electrical usage by
Subtenant in the Leased Premises. In the event that such study and
survey determine that Subtenant is consuming an amount of electricity
beyond normal office usage, then Sublandlord may, from and after its
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receipt of such study, notify Subtenant of the excessive consumption
and xxxx Subtenant for that amount above normal office usage.
All sums which Subtenant agrees to pay under this Sublease other than
Base Rent, or which Sublandlord pays or incurs as a result of a
default by Subtenant, including without limitation interest at the
Default Rate of Interest as defined in Section 13, shall be included
within the term "Additional Rent" whether or not expressly so
identified. As used in this Sublease, the term "Rent" shall mean
collectively Base Rent and Additional Rent.
5. Utilities. No interruption in any utility service to the Sublet Premises
shall give Subtenant any right to terminate this Sublease or shall give
rise to any claim for set-off or any abatement of Rent or of any of
Subtenant's obligations under this Sublease when such interruption results
from any cause other than the negligence or willful misconduct of
Sublandlord or Sublandlord's agents or employees.
Subtenant shall not connect to the Building's electrical system any
equipment which operates in excess of the current capacity of such system
without Sublandlord's prior written consent.
6. Use. Subtenant shall continuously use and occupy the Sublet Premises, to
the extent permitted by law, for the purposes of general offices and such
uses must be in accordance with the Prime Lease and for no other use or
purpose. Sublandlord makes no representation or warranty as to the
necessity of obtaining any license, permit or approval from any federal,
state or municipal governmental authority for such uses.
Subtenant shall not conduct any activity on the Sublet Premises, the
Building or the Land which is improper or offensive, which is not permitted
under Exhibit C of the Prime Lease, or which causes any noise, odor or
vibration to be emitted from the Sublet Premises, the Building or the Land.
Subtenant shall comply with the reasonable rules and regulations of the
Building and Land as the same may be promulgated and modified by Landlord
from time to time. Subtenant shall comply with all laws, statutes,
ordinances, by-laws, regulations, restrictions, and with the requirements
of all governmental approvals, licenses and permits, relating to the Land,
the Building or the Sublet Premises (collectively, "Legal Requirements"),
and with the provisions of all insurance policies from time to time in
effect with respect to the Building, the Land or the Sublet Premises. In
addition, Subtenant shall obtain, keep in force, and comply with all
requirements of all governmental approvals, licenses and permits required
for Subtenant's specific use of the Sublet Premises.
Subtenant shall not use, generate, treat, store, or dispose of "Hazardous
Substances" (as hereinafter defined) on the Sublet Premises or anywhere in
the Building or on the Land without giving prior written notification to
Sublandlord, including the identity and amounts of the Hazardous Substances
which Subtenant proposes to use, and receiving
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prior written consent from Sublandlord, which may be withheld or
conditioned in Sublandlord's sole discretion. In all events, Subtenant's
use of Hazardous Substances must be in full and complete accordance with
all Legal Requirements applicable thereto. Subtenant shall indemnify, save
harmless, and defend (with counsel reasonably satisfactory to Sublandlord)
Sublandlord, its officers, directors, employees, contractors, servants and
agents, from and against all loss, costs, damages, claims, proceedings,
demands, liabilities, penalties, fines and expenses, including without
limitation reasonable attorneys' fees, consultants' fees, litigation costs,
and cleanup costs, asserted against or incurred by Sublandlord, its
officers, directors, employees, contractors, servants and agents at any
time and from time to time resulting from the presence of any Hazardous
Substances in the Building or on the Land during the Sublease Term arising
after Subtenant's taking possession of the Sublet Premises and resulting
from (a) the action or inaction of Subtenant, its officers, directors,
employees, contractors, servants and agents, or (b) Subtenant's generation,
storage, treatment, handling, transportation, disposal or release of any
Hazardous Substances at or near the Building or the Land, or (c) the
violation of any applicable law governing Hazardous Substances by
Subtenant, its officers, directors, employees, contractors, servants or
agents. The indemnities and duties to defend set forth in this Section
shall survive the expiration or earlier termination of this Sublease. As
used in this Sublease, "Hazardous Substances" shall mean any chemical,
substance, waste, material, gas or emission which is deemed hazardous,
toxic, a pollutant, or a contaminant under federal, state or local statute,
law, ordinance, rule or regulation, now or hereafter in effect. "Hazardous
Substances" include but are not limited to petroleum, petroleum products,
asbestos, chloroflourocarbons (CFCs), radon gas and polychlorinated
biphenyles (PCBs). Upon request by Sublandlord from time to time,
Subtenant shall certify in writing to Sublandlord that no portion of the
Sublet Premises, Land or Building has been or is then being used by
Subtenant or by anyone claiming under Subtenant for the use, generation,
treatment, storage, or disposal of Hazardous Substances and that no such
Hazardous Substances are present in or on the Sublet Premises except those
set forth in such certification.
7. Assignment and Subletting. Subtenant shall not assign, transfer, mortgage
or pledge this Sublease, nor sublet all or any part of the Sublet Premises,
or enter into any other license or occupancy arrangement, whether voluntary
or involuntary or by operation of law (collectively a "Transfer"), without
Sublandlord's prior written consent, which consent may be withheld by
Sublandlord in its sole and absolute discretion.
No Transfer, nor any collection of rent by Sublandlord from any person or
entity other than Subtenant, shall relieve Subtenant of its obligations to
fully observe and perform the terms, covenants, and conditions hereof. No
consent by Sublandlord in a particular instance shall be deemed a waiver of
the obligation to obtain Sublandlord's consent in another instance.
Subtenant shall pay to Sublandlord as received any excess of amounts
received pursuant to an assignment, subletting, license or other occupancy
arrangement in excess of the Rent due hereunder. For the purposes of this
Sublease, the transfer of a majority ownership interest in Subtenant shall
be deemed a Transfer.
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8. Insurance. Subtenant shall maintain in full force and effect during the
Sublease Term a comprehensive general liability insurance policy with a
combined single limit not less than $2,000,000 for personal injury/bodily
injury and property damage, under which Subtenant, Sublandlord,
Sublandlord's first mortgagee and Landlord are named as insureds. Such
policy shall include a broad form comprehensive liability endorsement which
shall specifically include contractual liability coverage insuring
Subtenant's obligations under this Sublease. Such policy shall be issued by
a responsible insurance company with an A. M. Best rating of B+ or better
and which is authorized to do business in the state in which the Sublet
Premises are located.
Subtenant shall deliver certificates of such insurance to Sublandlord
before the Commencement Date and thereafter within thirty (30) days after a
request by Sublandlord. Subtenant shall use reasonable efforts to obtain
insurance policies which shall not be canceled, non-renewed, or materially
changed without thirty (30) days' prior written notice to Sublandlord and
Sublandlord's first mortgagee. Sublandlord and Subtenant each waive all
claims and rights against the other and their respective officers,
directors, employees, contractors, servants and agents, for any damage to
or destruction of real or personal property of Sublandlord or Subtenant,
regardless of cause or origin and regardless of any proceeds or recoveries
from any insurance policies, and all insurance policies carried by
Subtenant shall include a waiver of its right of subrogation against
Sublandlord. All such insurance shall be obtained at Subtenant's sole cost
and expense. Sublandlord shall have no responsibility or liability for any
loss of or damage to personal property or trade fixtures of Subtenant,
damage to all such property and fixtures being Subtenant's sole risk.
In the event that Sublandlord receives a notice of cancellation of such
insurance policy, Sublandlord may, in addition to and without thereby
waiving any other remedies therefor, either (i) pay the premiums necessary
to prevent such cancellation or (ii) obtain substitute insurance and xxxx
Subtenant therefor. Subtenant shall reimburse Sublandlord therefor by
paying such amount to Sublandlord, as Additional Rent, within ten (10) days
after demand by Sublandlord.
9. Indemnification. To the maximum extent that this agreement may be made
effective according to law, but subject to the waiver of subrogation in
section 8 above, Subtenant agrees that it will defend and indemnify
Sublandlord and save Sublandlord harmless from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and
expenses (including, without limitation, attorneys' fees and expenses)
imposed upon or incurred by or asserted against Sublandlord by reason of
(a) any accident, injury to, or death of persons, or damage to or loss of
property other than that of Sublandlord and Subtenant, in or about the
Sublet Premises, the Building or the Land, or (b) any failure on the part
of Subtenant to perform, fulfill or observe any of Subtenant's
representations, warrantees or agreements set forth in this Sublease. This
indemnification shall survive expiration or earlier termination of this
Sublease. In case any action, suit or proceeding is brought against
Sublandlord by reason of any such occurrence, Subtenant, upon
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Sublandlord's request, shall at Subtenant's expense, cause such action,
suit or proceeding to be resisted and defended by counsel reasonably
satisfactory to Sublandlord.
10. Maintenance and Services.
Subtenant hereby agrees that it is relying directly on Landlord's
obligations under the Prime Lease for all maintenance, services and repairs
to the Sublet Premises, including without limitation the Riders. If
Landlord shall default in any of its obligations to Sublandlord under the
Prime Lease, Sublandlord shall cooperate with Subtenant, upon request by
Subtenant and at Subtenant's sole cost and expense, in enforcing
Sublandlord's rights against Landlord under the Prime Lease.
In addition to all other obligations relating to repair and maintenance of
Sublandlord under the Prime Lease, Subtenant shall, at its expense,
maintain the interior non-structural portions of the Building in good order
and condition, except for reasonable wear and tear and damage caused by
fire or other casualty, Taking, default by Sublandlord hereunder, or by any
negligent act or omission or willful act or omission by Sublandlord, its
officers, directors, employees, contractors, servants or agents.
11. Prime Lease.
a. Incorporation of Prime Lease. Except as otherwise expressly provided
herein, Sublandlord grants to Subtenant, to share in common with
Sublandlord, all of Sublandlord's rights, benefits, and interests with
respect to the Sublet Premises, and Subtenant agrees to accept from
Sublandlord and hereby assumes all of Sublandlord's obligations and
burdens under the Prime Lease with respect to the Sublet Premises, as
if all of such rights and obligations were set forth herein in their
entirety, provided that the terms and conditions hereof shall be
controlling whenever the terms and conditions of the Prime Lease are
contradictory to or inconsistent with terms and conditions hereof, and
provided further that those provisions of the Prime Lease which are
protective and for the benefit of the Landlord shall in this Sublease
be deemed to be protective and for the benefit of the Landlord and
Sublandlord. Notwithstanding the foregoing sentence, the terms,
covenants and conditions of the following Sections of the Prime Lease
are expressly modified as follows:
Section 4: Assignment & Subletting - delete in its entirety;
Section 9: Holding Over- delete in its entirety;
Section 1.2: Renewal Term - delete in its entirety;
Subtenant represents that it has read and is familiar with the terms
of the Prime Lease.
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b. Performance of Prime Lease. Subtenant covenants and agrees faithfully
to observe and perform all of the terms, covenants and conditions of
the Prime Lease on the part of Sublandlord to be performed with
respect to [the portion of the Leased Premises thereunder comprising]
the Sublet Premises, and neither to do nor cause to be done, nor
suffer, nor permit any act or thing to be done which would or might
cause the Prime Lease to be canceled, terminated, forfeited or
surrendered, or which would or might make Sublandlord liable for any
damages, claims or penalties.
c. Consents. Sublandlord shall not be required to give any consent
required or permitted under the terms of this Sublease with respect to
any matter on which the Prime Lease requires the consent of Landlord
until it has first obtained the written consent of the Landlord with
respect to such matter. Upon written request by Subtenant, Sublandlord
agrees to use reasonable efforts (not involving the payment of money,
unless Subtenant pays such money) to obtain such consent of the
Landlord in a timely manner.
d. No Sublandlord Obligation. Except as otherwise specifically provided
herein, Sublandlord shall not have any obligation to construct,
maintain, alter, restore or repair the Sublet Premises, the Building,
or any parking area or other facility or improvement appurtenant
thereto or to provide Subtenant with any service of any kind or
description whatsoever, nor shall Sublandlord be responsible for the
performance of Landlord's obligations under the Prime Lease or be
liable in damages or otherwise for any negligence of Landlord or for
any damage or injury suffered by Subtenant as a result of any act or
failure to act by Landlord or any default by Landlord in fulfilling
its obligations under the Prime Lease. Upon written request by
Subtenant, Sublandlord agrees to use reasonable efforts (not involving
the payment of money, unless Subtenant pays such money) to cause
Landlord to perform its obligations under the Prime Lease in a timely
manner. Subtenant hereby waives all claims for consequential damages
against Sublandlord arising out of any breach or failure by
Sublandlord to perform or observe the requirements and obligations
created by this sublease.
e. Termination. If the Prime Lease is terminated pursuant to any
provision of the Prime Lease or otherwise, (i) this Sublease shall
terminate simultaneously therewith, and (ii) any unearned rent paid in
advance shall be refunded to Subtenant unless such termination was the
result of a breach by Subtenant of any term, covenant or condition of
this Sublease. Notwithstanding the preceding sentence, in the event
that Sublandlord or an affiliate thereof acquires title to the
Building, this Sublease shall remain in full force and effect.
12. No Alterations. After completion of Subtenant's Work, Subtenant shall make
no alterations, additions or improvements to the Sublet Premises or to any
portion of the Building without on each occasion first obtaining (i) the
prior written consent of Sublandlord, which consent may be withheld in
Sublandlord's sole discretion or granted
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upon such conditions as Sublandlord may deem appropriate, and (ii) when
required by the terms of the Prime Lease, the prior written consent of the
Landlord. Upon written request by Subtenant, Sublandlord agrees to use
reasonable efforts (not involving the payment of money, unless Subtenant
pays such money) to obtain such consent of the Landlord, when required
under the Prime Lease, in a timely manner. All work shall be done in
accordance with the terms and conditions of the Prime Lease and all laws,
by-laws, rules, regulations, licenses and permits.
13. Defaults and Remedies. The occurrence of any of the following shall
constitute an "Event of Default" hereunder: (i) if Subtenant fails to pay
any Rent when due and such failure continues for 10 days after written
notice of such failure, [provided, however, that Subtenant shall not be
entitled to such notice if Sublandlord has given notice to Subtenant of 1
or more previous such failures within a 12-month period, in which event
such failure shall constitute a default hereunder upon the expiration of 10
days after such payment was due,] or (ii) if Subtenant fails to perform or
observe any of the terms of this Sublease other than those requiring the
payment of Rent and such failure continues for 15 days after Sublandlord
gives written notice of said failure; provided, however, that if the grace
period for such default provided to Sublandlord under the Prime Lease is
shorter than 15 days, the length of Subtenant's grace period shall be
one-half of Sublandlord's grace period; or (iii) if the subleasehold hereby
created shall be taken on execution, or by other process of law, or if any
assignment shall be made of Subtenant's property for the benefit of
creditors, or if a receiver, guardian, conservator, trustee in bankruptcy
or similar officer shall be appointed to take charge of all or any part of
Subtenant's property by a court of competent jurisdiction, or if a petition
is filed by Subtenant under any bankruptcy or insolvency law, or if a
petition is filed against Subtenant under any bankruptcy law and the same
shall not be dismissed within 30 days from the date upon which it is filed.
If an Event of Default occurs, Sublandlord may at its option immediately or
at any time thereafter exercise any one or more of the remedies provided in
the Prime Lease with respect to a default thereunder by Sublandlord.
Notwithstanding the fore-going, and in addition thereto, Sublandlord may at
its option immediately or at any time thereafter exercise one or more of
the following remedies, consecutively or simultaneously, without notice or
demand:
a. Sublandlord may bring suit for damages or specific performance for the
collection of unpaid Rent or the performance of any of Subtenant's
obligations, all either with or without entering into possession or
terminating this Sublease.
b. Sublandlord may, at its option, give Subtenant a notice terminating
this Sublease on a date not less than 3 business days after
Sublandlord gives such notice, and upon such date this Sublease shall
terminate and all rights of Subtenant shall cease without further
notice or lapse of time, Subtenant hereby waiving all statutory
rights, including rights of redemption, if any. Upon termination of
this Sublease, Subtenant shall surrender the Sublet Premises to
Sublandlord in accordance with the terms of this Sublease. Subtenant's
liability hereunder shall survive such
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termination and Subtenant shall indemnify and hold Sublandlord
harmless from all claims, losses, costs, expenses, damages or
liabilities arising out of or in connection with such termination.
c. If, after such termination, Sublandlord elects to relet all or any
part of the Sublet Premises, such reletting may be on such terms and
conditions as Sublandlord in its reasonable discretion may determine.
Sublandlord may retain for itself all rents from reletting, and
Sublandlord shall not be liable for any failure to relet all or any
part of the Sublet Premises. The rent obtained from such reletting
shall be, for purposes of subsection 13(d)(2), prima facie evidence of
the fair rental value for the part of the Sublet Premises so relet
during the term of the reletting. The proceeds of reletting shall be
applied first to pay all Sublandlord's reletting expenses, including,
without limitation, all repossession costs, alteration costs,
brokerage commissions, advertising expenses and reasonable attorneys'
fees ("Reletting Expenses"), then to pay any cost to Sublandlord of
curing Subtenant's defaults, then to pay Rent, any balance then to be
kept by Sublandlord.
d. After such termination, Subtenant shall:
1. pay Sublandlord monthly on the days on which Base Rent would have
been payable, as damages for Subtenant's default, the difference
between: (i) the amount of Rent which would be payable under this
Sublease by Subtenant if this Sublease were still in effect, less
(ii) the net proceeds of any reletting, after deducting
Sublandlord's Reletting Expenses and Sublandlord's costs incurred
in curing Subtenant's defaults; or
2. at Sublandlord's election, whether or not Sublandlord shall have
collected any payments under the preceding paragraph (1), pay
Sublandlord, on demand, an amount equal to: (i) the present
value, discounted at the discount rate at which one-year Treasury
bills have then most recently sold, of the difference between (a)
all Rent which would have been payable from the date of such
termination until the last day of the term of this Sublease, and
(b) the fair rental value of the Sublet Premises for the same
period; plus (ii) Sublandlord's reasonable estimate of Reletting
Expenses.
e. If an Event of Default occurs, Sublandlord shall have the right, but
not the obligation, without the necessity of terminating this
Sublease, to enter the Sublet Premises and perform any of Subtenant's
obligations notwithstanding that no specific provision for such
substituted performance by Sublandlord is made in this Sublease. All
sums so paid by Sublandlord, and all costs and expenses incurred by
Sublandlord in connection with the performance of Subtenant's
obligations, plus interest thereon at the rate of 18% per annum (or,
if less, the maximum rate of interest permitted at such time by law),
shall be deemed Additional Rent and shall be payable to Sublandlord
immediately upon demand.
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The rights and remedies granted to Sublandlord herein are cumulative
and in addition to any others Sublandlord may be entitled to at law or
in equity.
Subtenant shall pay on demand all of Sublandlord's costs and expenses
incurred in connection with enforcement of this Sublease, including
without limitation, reasonable attorneys' fees and court costs.
All sums not paid by Subtenant when due hereunder (regardless of
whether or not the applicable grace period has expired) shall bear
interest at a rate equal to the lesser of (i) 1-1/2% per month or (ii)
the highest rate permitted by law (the "Default Rate of Interest"),
which interest shall be payable to Sublandlord as Additional Rent
hereunder immediately upon demand.
14. Surrender. Upon the expiration or earlier termination of the Sublease
Term, Subtenant shall surrender the Sublet Premises free and clear of all
tenants and occupants, and in good order and condition, reasonable wear and
tear and damage by casualty or taking only excepted. Subtenant's Work shall
be removed if required pursuant to Section 3 hereof, and all other
alterations, additions and improvements shall remain part of the Sublet
Premises and shall not be removed unless Sublandlord so requests such
removal by notice to Subtenant at least thirty (30) days prior to the
expiration or earlier termination date. Subtenant shall repair any damage
to the Sublet Premises caused by the removal of its property. Any property
of Subtenant not removed at or prior to the expiration or earlier
termination of the Sublease Term may be removed and stored or disposed of
by Sublandlord as it deems appropriate in its sole discretion. Subtenant
agrees to reimburse Sublandlord for all of Sublandlord's costs resulting
from such removal and storage or disposition.
15. Notices. All notices relating to this Sublease or the Sublet Premises shall
be in writing and addressed, if to Subtenant, to the Sublet Premises, or to
such other address as Subtenant shall designate in writing; and if to
Sublandlord, to the address stated in the preamble above, or to such other
address as Sublandlord shall designate in writing. No notice from Subtenant
to Landlord shall be effective as to Sublandlord unless Subtenant delivers
a copy of such notice in the manner set forth in this section to
Sublandlord simultaneously with delivery of such notice to Landlord. Any
notice shall be deemed duly given (i) when delivered by hand, if so
delivered and a receipt obtained, or (ii) four (4) days after being
deposited with the U.S. Postal Service addressed to such address, postage
prepaid, registered or certified mail, return receipt requested, or (iii)
the next business day after being delivered to an overnight courier with
acceptance signature required.
16. Effect. This Sublease shall be binding upon the parties hereto and their
respective successors and assigns.
17. Applicable Law. This Sublease shall be governed by and construed in
accordance with the laws of the state in which the Sublet Premises are
located.
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18. Modification, etc. Neither this Sublease nor any provision hereof may be
waived, modified, amended, discharged or terminated, except by an
instrument in writing signed by both parties. This Sublease constitutes the
entire agreement of the parties hereto with respect to the Sublet Premises.
19. Severability. If any term or provision of this Sublease or the application
thereof to any person or circumstance shall to any extent be held invalid
or unenforceable, the remainder of this Sublease or the application of such
term or provision to other persons or circumstances shall not be affected
thereby, and each term and provision of this Sublease shall be valid and
enforceable to the fullest extent permitted by law.
20 No Waiver. No failure by Sublandlord or Subtenant to insist upon the
strict performance of any term hereof or to exercise any right, power or
remedy consequent upon a breach thereof, and no acceptance of full or
partial Rent by Sublandlord during the continuance of such breach, shall
constitute a waiver of any such breach or of any such term. Sublandlord's
consent in one instance hereunder shall not relieve Subtenant of the
requirement of obtaining Sublandlord's consent in any other instance.
21. Broker. Sublandlord shall be responsible for paying the brokerage
commission due to Xxxxxxxxx & Xxxx (the "Subtenant's Broker") and Xxxx
Management Services, Inc. (the Sublandlord's Broker) in connection with
this Sublease. Subtenant and Sublandlord each represents and warrants to
the other that it has not dealt with any broker or agent in connection with
this Sublease other than the Subtenant's Broker and Sublandlord's Broker,
and it shall indemnify, defend (with counsel reasonably satisfactory to the
indemnified party) and hold the other party hereto harmless from and
against all claims, liabilities, leases, damages, costs and expenses
arising from a breach of such representation and warranty.
22. Mechanics Liens. Subtenant shall not cause or permit any liens for labor
or materials to attach to the Sublet Premises, the Building or the Land as
a result of any work performed by or on behalf of Subtenant, and shall
immediately discharge any such liens which may so attach.
23. Confidentiality. All terms and conditions of this Sublease shall be kept
confidential by all parties and shall not be disclosed without the consent
of the other parties.
24. Security Deposit. None.
25. Consent of Landlord. The effectiveness of this Sublease shall be
conditioned upon the receipt of written consent of the Landlord to this
Sublease substantially in the form of Exhibit E attached hereto.
11
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
executed under seal by their duly authorized officers as of date first above
written.
Sublandlord: Digital Equipment Corporation
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Manager, Real Estate Acquisitions & Dispositions
Subtenant: Xxxxxxx Management Systems Corporation
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: President
Accepted and Approved
Prime Landlord: Liberty Property Trust
By: See Consent to Sublease dated November 17, 1995
-----------------------------------------------
Name:
Title:
12
EXHIBIT A TO SUBLEASE
PRIME LEASE
[Copy attached]
13
1-8-85
29,600 square feet
XXXXX & ASSOCIATES
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE (hereinafter referred to as "this Lease") made this
31 day of May 1985, by and between XXXXX & ASSOCIATES-METRO EAST EXECUTIVE,
LIMITED PARTNERSHIP, TERRACE LIMITED PARTNERSHIP organized and existing under
the law of Pennsylvania having an address at 0000 XXXXXXXXXXXX XXXXX, XXXXXXXX,
XXXXXXXX 00000 (hereinafter referred to as "the Landlord"), and DIGITAL
EQUIPMENT CORPORATION, A CORPORATION organized and existing under the law of
Massachusetts, having an address at 0000 XXXXXXXX XXXXXX XXXXXXX, XXXXXX,
XXXXXXXX 00000 (hereinafter referred to as "the Tenant").
WITNESSETH, THAT FOR AND IN CONSIDERATION of the mutual entry into this
Lease by the parties hereto, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by each party hereto, the
Landlord hereby leases to the Tenant, and the Tenant hereby leases from the
Landlord, all of that real property, situate and lying in PRINCE GEORGE'S
County, Maryland, which consists of the space (containing approximately 00,000
xxxxxx xxxx xx xxxxx xxxx) shown outlined in red on a plat attached hereto as
Exhibit A (hereinafter referred to as "the Premises") and located in a building
to be located at 0000 XXXXXXXXX XXXXX (hereinafter referred to as "the
Building") at LANDOVER, MARYLAND, on a tract of land designated as "Lot 10" on a
plat entitled "Minor Subdivision, Xxxx 0 xxx 00, Xxxxx X," and recorded among
the Land Records of the said County in Plat Book NLP120 at folio 10 (the
Premises, the remainder of the Building, such tract of land and any other
buildings or improvements thereon being hereinafter referred to collectively as
"the Property"). [SEE PARAGRAPH 1 OF RIDER]
SUBJECT TO THE OPERATION AND EFFECT of any and all instruments and matters
of record or in fact, UPON THE TERMS AND SUBJECT TO THE CONDITIONS which
are hereinafter set forth:
Section 1. [SEE PARAGRAPH 2 OF RIDER]
Section 2. Use.
2.1 [SEE PARAGRAPH 3 OF RIDER]
2.2 In its use of the Premises and the remainder of the Property, the
Tenant shall not violate any applicable law, ordinances or regulation. [SEE
PARAGRAPH 4 OF RIDER]
2.3 Except for the parking of automobiles in the ordinary course of
business, the Tenant shall not place or permit its agents or employees to place
any trash or other objects anywhere within the Building or the rest of the
Property (other than within the Premises) without first obtaining Landlord's
express written consent thereto. [SEE PARAGRAPH 5 OF RIDER]
Section 3. Rent
3.1 Amount. As rent for the Premises (all of which is hereinafter
referred to collectively as "Rent"), the Tenant shall pay to the Landlord all of
the following:
(a) Base Rent. An annual rent (hereinafter referred to as "the
Base Rent") comprised of the aggregate of the following components:
(i) Net Component. A net component (hereinafter referred to as
"the Net Component") which
(A) [SEE PARAGRAPH 6 OF RIDER]
(B) for each Lease Year thereafter during the original Term,
is in a sum equaling the greater of (1) the Net Component for the immediately
preceding Lease Year or (2) the product obtained by multiplying (I) the said sum
of Three Hundred Eighty-Four Thousand Eight Hundred Dollars ($384,800) by (II) a
fraction, the numerator of which is the total of (x) the Consumer Price Index
for Urban Wage Earners and Clerical Workers-Revised (1967=100), Metropolitan
Washington, D.C. Index, published by the Bureau of Labor Statistics of the
United States Department of Labor (hereinafter referred to as "the Consumer
Price Index") for the calendar month containing the Commencement Date, plus (y)
twenty-five percent (25%) of the amount by which the Consumer Price Index for
the calendar month immediately preceding that during which such Lease Year
commences exceeds the Consumer Price Index for the calendar month containing the
Commencement Date, and the denominator of which is the Consumer Price Index so
published for the calendar month containing the Commencement Date (in each case,
if the Consumer Price Index is not so published for such calendar month, then
the Consumer Price Index for the most recent calendar month or other period for
which it is so published) (provided, that (a) if the Consumer Price Index for
the calendar month immediately preceding that during which such Lease Year
commences, as aforesaid, has not been published by the date on which the first
installment of the Base Rent accrues for such Lease Year, then until such
Consumer Price Index is published for such calendar month, the Tenant shall pay
on account of the Net Component of each installment of the Base Rent falling due
during such Lease Year before such Consumer Price Index is published, as
aforesaid, an amount equaling the installment of the Net Component which accrued
for the calendar month immediately preceding that during which such Lease Year
commenced, and shall thereafter pay to the Landlord, promptly upon written
demand by the Landlord after such Consumer Price Index is so published, the
amount, if any, by which the installments of the Base Rent for such Lease Year,
when calculated by reference to such published Consumer Price Index, exceeds the
aggregate amount of such installments theretofore paid during such Lease Year;
and (b) if the Consumer Price Index hereafter uses a different standard
reference base or is otherwise revised, an adjustment shall be made therein for
purposes of the provisions of this Lease, using such conversion factor, formula
or table for making such adjustment as is published by such Bureau, or if such
Bureau does not publish the same, then as is published by Xxxxxxxx-Xxxx, Inc.,
the Bureau of National Affairs, Commerce Clearing House or any other nationally
recognized publisher of similar statistical information, as mutually agreed to
by both Landlord and Tenant; and [SEE PARAGRAPH 7 OF RIDER]
(ii) [SEE PARAGRAPH 8 OF RIDER]
1
(b) Additional Rent. Additional rent (hereinafter referred to as
"Additional Rent") in the amount of any payment referred to as such in any
provision of this Lease which accrues while this Lease is in effect.
(c) Lease Year. [SEE PARAGRAPH 9 OF RIDER]
3.2 Annual Operating Costs.
(a) Definition. As used herein, the term "Annual Operating Costs"
means the actual costs incurred by the Landlord in operating and maintaining the
Property during each calendar year of the Term. Such costs shall include, by
way of example rather than of limitation, (i) real property, front-foot benefit,
other metropolitan district and other similar taxes or assessments (whether
regular or special) levied against any or all of the Property; (ii) charges or
fees for, and taxes on, the furnishing of water, sewer service, gas, fuel, or
other utility services to the Property; (iii) costs of providing elevator,
janitorial and trash removal service, and of maintaining grounds, common areas
and mechanical systems of buildings; (iv) all other costs of maintaining,
repairing or replacing any or all of the Building or the rest of the Property;
(v) charges or fees for any necessary government permits; (vi) [crossed out];
(vii) premiums for hazard, liability, workmen's compensation or similar
insurance upon any or all of the Property; (viii) costs arising under service
contracts with independent contractors; (ix) costs of any services not provided
by the Landlord to the Property on the date hereof but hereafter provided by the
Landlord in its prudent management of the Property; and (x) the cost of any
other items which, under generally accepted accounting principles consistently
applied from year to year with respect to the Property, constitute operating or
maintenance costs attributable to any or all of the Property. Such costs shall
not include (i) the expense of principal and interest payments made by the
Landlord pursuant to the provisions of any mortgage or deed of trust covering
the Property; [SEE PARAGRAPHS 10 AND 11 OF RIDER]
(b) Portion covered by Costs Component. The Costs Component of the
Base Rent represents the Landlord's estimate on the date hereof of the cost to
the Landlord per calendar year of providing to or for the benefit of the
Premises all of the services or other items, the costs of which are included in
the Annual Operating Costs, excluding any of such services or other items to be
provided at the Tenant's direct expense under the provisions of Section 7.
(c) Computation. After the end of each calendar year during the
Term, the Landlord shall compute the total of the Annual Operating Costs
Incurred for all of the Property during such calendar year, and shall allocate
them to the net rentable space within the Property by dividing such Annual
Operating Costs by the aggregate square footage of all of the net rentable space
within the Property, thereby deriving the cost of such categories of services
and items per square foot of such net rentable space; provided, that anything
contained in the foregoing provisions of this subsection 3.2 to the contrary
notwithstanding, wherever the Tenant and/or any other tenant of space within the
Property has agreed in its lease or otherwise to provide any item of such
services partially or entirely at its own expense, or wherever in the Landlord's
reasonable sole judgment any such significant item of expense is not incurred
with respect to or for the benefit of all of the net rentable space within the
Property in allocating the Annual Operating Costs pursuant to the foregoing
provisions of this subsection the Landlord shall make an appropriate adjustment,
using generally accepted accounting principles, as aforesaid, so as to avoid
allocating to the Tenant or to such other tenant (as the case may be) those
Annual Operating Costs covering such services already being provided by the
Tenant or by such other tenant at its own expense, or to avoid allocating to all
of the net rentable space within the Property those Annual Operating Costs
incurred only with respect to a portion thereof, as aforesaid.
(d) Payment as Additional Rent. The Tenant shall, within fifteen
(15) days after demand therefor by the Landlord (with respect to each calendar
year during the Term),(*) pay to the Landlord as Additional Rent the amount
obtained by multiplying (i) the number of square feet of space within the
Premises (as set forth hereinabove) by (ii) the amount by which (A) the Annual
Operating Costs for such calendar year (as derived under the provisions of
paragraph 3.2(c)) exceeds (B) the Costs Component.
(e) Proration. If only part of any calendar year falls within the
Term,(**) the amount computed as Additional Rent with respect to such calendar
year under the foregoing provisions of this subsection shall be prorated in
proportion to the portion of such calendar year falling within such portion of
the Term before the end of any calendar year shall not impair the Tenant's
obligation hereunder to pay such pro-rated portion of such Additional Rent with
respect to that portion of such year falling within the Term, which shall be
paid on demand, as aforesaid).
(f) Landlord's right to estimate. Anything contained in the
foregoing provisions of this subsection to the contrary notwithstanding, the
Landlord may, at its discretion, make from time to time during the Term a
reasonable estimate of the Additional Rent which may become due under such
provisions with respect to any calendar year, and may require the Tenant to pay
to the Landlord with respect to each calendar month during such year one-twelfth
(1/12) of such Additional Rent, at the time and in the manner that the Tenant is
required hereunder to pay the monthly installment of the Base Rent for such
month. In such event, the Landlord shall cause the actual amount such
Additional Rent to be computed and certified to the Tenant within 120 days after
the end of such calendar year, and the Tenant or the Landlord, as the case may
be, shall promptly thereafter pay to the other the amount of any deficiency or
overpayment therein, as the case may be. [SEE PARAGRAPH 12 OF RIDER]
3.3 When due and payable.
(a) The Base Rent for any Lease Year shall be due and payable in
twelve (12) consecutive, equal monthly installments, in advance, on the first
(1st) day of each calendar month during such lease Year; provided, that the
installment of the Base Rent payable for the first full calendar month of the
Term (and, if the Term commences on a day other than the first (1st) day of a
calendar month, that portion of the Base Rent which is payable for such month)
shall be due and payable on the full execution and delivery of this Lease.
[SEE PARAGRAPH 13 OF RIDER]
(b) Any Additional Rent accruing to the Landlord under any provision
of this Lease shall, except as is otherwise set forth herein, be due and payable
when the installment of the Base Rent next falling due after such Additional
Rent accrues becomes due and payable. [SEE PARAGRAPHS 14 AND 15 OF RIDER]
3.4 Where and how payable. The Tenant shall pay the Rent, in lawful
currency of the United States of America, to the Landlord by delivering or
mailing it (postage prepaid) to the Landlord's address which is set forth
hereinabove, or to such other address as the Landlord
-------------------------------
* which ends after the first (1st) Lease Year during the Original Term
** that portion of the Term which remains after the first (1st) Lease Year
during the Original Term,
2
from time to time specifies by written notice to the Tenant. Any payment made
by the Tenant to the Landlord on account of Rent may be credited by the Landlord
to the payment of any Rent then past due before being credited to Rent currently
falling due. Any such payment which is less than the amount of Rent then due
shall constitute a payment made on account thereof, the parties hereto hereby
agreeing that the Landlord's acceptance of such payment (whether or not with or
accompanied by an endorsement or statement that such lesser amount or the
Landlord's acceptance thereof constitutes payment in full of the amount of Rent
due) shall not alter or impair the Landlord's rights hereunder to be paid all of
such amount then due, or in any other respect.
3.5 [Crossed out]
3.6 Tax on Lease. If federal, state or local law now or hereafter imposes
any tax, assessment, levy or other charge (other than any income tax) directly
or indirectly upon (a) the Landlord with respect to this Lease or the Value
thereof, (b) the Tenant's use or occupancy of the Premises, (c) the Base Rent,
Additional Rent or any other sum payable under this Lease, or (d) this
transaction, except if and to the extent that such tax, assessment, levy or
other charge is included in the Annual Operating Costs the Tenant shall pay the
amount thereof as Additional Rent to the Landlord. [SEE PARAGRAPH 16 OF RIDER]
Section 4. Assignment and Subletting.
4.1. The Tenant shall not mortgage, pledge or encumber this Lease.
4.2. [SEE PARAGRAPH 17 OF RIDER]
Section 5. [SEE PARAGRAPH 18 OF RIDER HERETO]
Section 6. Fire and other casualty. [SEE PARAGRAPH 19 OF RIDER]
Section 7. Maintenance and Services.
7.1. Extraordinary services. [SEE PARAGRAPH 20 OF RIDER]
7.2. Extraordinary services. If the Tenant
(a) [Crossed out]
(b) intends to use the Premises in such a manner that the services to
be furnished by the Landlord hereunder would be required during periods other
than or in addition to the business hours set forth herein, then in either case
the Tenant shall not do so without first obtaining the Landlord's written
approval thereof, and shall pay periodically as Additional Rent the additional
direct expense resulting therefrom, including that resulting from any
installation of such equipment. [SEE PARAGRAPH 21 OF RIDER]
7.3 Maintenance and alterations by Tenant.
(a) The Tenant shall maintain the nonstructural parts of the interior
of the Premises in good repair and condition, damages by causes reasonably
beyond the Tenant's control and ordinary wear and tear excepted.
(b) The Tenant shall not make or permit to be made any alteration,
addition or improvement to the Premises without first obtaining the Landlord's
written consent thereto (which, in the case of non-structural alterations,
additions and improvements only, shall not be unreasonably withheld). If the
Landlord consents to any such proposed alteration, addition or improvements, it
shall be made at the Tenant's sole expense (and the Tenant shall hold the
Landlord harmless from any costs incurred on account thereof), and at such time
and in such manner as not unreasonably to interfere with the use and enjoyment
of the remainder of the Property by any tenant thereof or any other person.
[SEE PARAGRAPH 22 OF RIDER]
7.4 Maintenance by Landlord. [SEE PARAGRAPH 23 OF RIDER]
Section 8. Defaults by the Tenant.
8.1 Definition: As used in the provisions of this Lease, each of the
following events shall constitute, and is hereinafter referred to as, an "Event
of Default":
(a) If the Tenant (i) fails to pay the Rent or any other sum which
the Tenant is obligated to pay by any provision of this Lease, when and as it is
due and payable hereunder and without demand therefore, or (ii) in any respect
violates any of the terms, conditions or covenants set forth in the provisions
of this Lease; or
(b) If the Tenant (i) applies for or consents to the appointment of a
receiver, trustee or liquidator of the Tenant or of all or a substantial part of
its assets, (ii) files a voluntary petition in bankruptcy or admits in writing
its inability to pay its debts as they come due, (iii) makes an assignment for
the benefit of its creditors, (iv) files a petition or an answer seeking a
reorganization or an arrangement with creditors, or seeks to take advantage of
any insolvency law, (v) performs any other act of bankruptcy, or (vi) files an
answer admitting the material allegations of a petition filed against the Tenant
in any bankruptcy, reorganization or insolvency proceeding; or
(c) if (i) an order, judgment or decree is entered by any court of
competent jurisdiction adjudicating the Tenant bankrupt or an insolvent,
approving a petition seeking such a reorganization, or appointing a receiver,
trustee or liquidator of the Tenant or of all or a substantial part of its
assets, or (ii) there otherwise commences with respect to the Tenant or any of
its assets any proceeding under any bankruptcy, reorganization, arrangement,
insolvency, readjustment, receivership or similar law, and if such order,
judgment, decree or proceeding continues unstayed for more than sixty (60)
consecutive days after the expiration of any stay thereof.
8.2 Notice to Tenant; grace period. Anything contained in the provisions
of this Section to the contrary notwithstanding, upon the occurrence of an Event
of Default the Landlord shall not exercise any right or remedy which it holds
under any provision of this Lease or under applicable law unless and until
(a) the Landlord has given written notice thereof to the Tenant, and
(b) the Tenant has failed, (i) if such Event of Default consists of
the failure to pay money, within ten (10) days thereafter to pay all of such
money, or (ii) if such Event of Default consists of something other than the
failure to pay money, within thirty (30) days thereafter actively, diligently
and in good faith to proceed to cure such Event of Default and to continue to do
so until it is fully cured; provided, that [SEE PARAGRAPH 24 OF RIDER]
(c) no such notice shall be required, and the Tenant shall be
entitled to no such grace period, (i) more than twice during any twelve (12)
month period, or (ii) if the Tenant has substantially terminated or is in the
process of substantially terminating its continuous occupancy and use of the
Premises for the purpose set forth in the provisions of Section 2, or (iii) if
any Event of Default enumerated in the provisions of paragraphs 8.1 (b) or 8.1
(c) has occurred.
8.3 Landlord's rights upon Event of Default. Upon the occurrence of any
Event of Default, the Landlord may
(a) re-enter and repossess the Premises and any and all improvements
thereon and additions thereto;
(b) [Crossed out]
3
(c) relet any or all of the Premises for the Tenant's account for any
or all of the remainder of the Term as herein above defined, or for a period
exceeding such remainder, in which event the Tenant shall pay to the Landlord
any deficiency in the Base Rent and any Additional Rent resulting, with respect
to such remainder, from such reletting, as well as the cost to the Landlord of
any attorneys' fees or of any repairs or other action (including those taken in
exercising the Landlord's rights under any provision of this Lease) taken by the
Landlord on account of such Event of Default; and/or
(d) pursue any combination of such remedies and/or any other remedy
available to the Landlord on account of such Event of Default under applicable
law.
8.4 Landlord's right to cure. Upon the occurrence of an Event of Default,
the Landlord shall be entitled (but shall not be obligated), in addition to any
other rights which it may have hereunder or under applicable law as a result
thereof, and after giving the Tenant written notice of the Landlord's intention
to do so except in the case of emergency, to cure such event of Default, and the
Tenant shall reimburse the Landlord for all expenses incurred by the Landlord in
doing so, plus interest thereon at a lesser of the rate of twenty percent (20%)
per annum or the highest rate then permitted on account thereof by applicable
law, which expenses and interest shall be Additional Rent and shall be payable
by the Tenant immediately upon demand therefor by the Landlord. [SEE
PARAGRAPHS 25 AND 26 OF RIDER]
Section 9. Holding over. The Tenant shall not continue to occupy the
Premises after the expiration or earlier termination of the Term or any renewal
thereof, unless the Landlord consents in writing to such continuation of
occupancy, in which event
9.1. such occupancy shall (unless the parties hereto otherwise agree in
writing) be deemed to be under a month-to-month tenancy, which shall continue
until either party hereto notifies the other in writing, by at least sixty (60)
days before the end of any calendar month, that the party giving such notice
elects to terminate such tenancy at the end of such calendar month, in which
event such tenancy shall so terminate;
9.2 anything contained in the foregoing provisions of this Section to the
contrary notwithstanding, the rental payable with respect to each such monthly
period shall equal one-twelfth (1/12) of the Base Rent and the Additional Rent
payable under the provisions of Section 3 (calculated in accordance with such
provisions of Section 3 as if this Lease had been renewed for a period of twelve
(12) full calendar months after such expiration or earlier termination of the
Term or such renewal); and
9.3. such month-to-month tenancy shall be upon the same terms and subject
to the same conditions as those set forth in the provisions of this Lease;
provided, that if the Landlord gives to the Tenant, by at least sixty (60) days
before the end of any calendar month during such month-to-month tenancy, written
notice that such terms and conditions (including any thereof relating to the
amount and payment of Rent) shall, after such month, be modified in any manner
specified in such notice, then such tenancy shall, after such month, be upon the
said terms and subject to the said conditions, as so modified.
Section 10. Landlord's right of entry. The Landlord and its agents shall
be entitled to enter the Premises at any reasonable time [SEE PARAGRAPH 27 OF
RIDER]
10.1. to inspect the Premises,
10.2. to exhibit the Premises to any existing or prospective purchaser or
Mortgagee thereof or any prospective tenant thereof,
10.3. to make any alteration, improvement or repair to the Building or the
Premises, or
10.4. for any other purpose relating to the operation or maintenance of
the Property; provided, that the Landlord shall (a) (unless doing so is
impractical or unreasonable because of emergency) give the Tenant at least
twenty-four (24) hours' prior notice of its intention to enter the Premises, and
(b) use reasonable efforts to avoid thereby interfering any more than is
reasonably necessary with the Tenant's use and enjoyment thereof.
Section 11. Insurance and Indemnification.
11.1 Increase in risk. The Tenant
(a) shall not do or permit to be done any act or thing as a result of
which either (i) any policy of insurance of any kind covering any or all of the
Property or any liability of the Landlord in connection therewith may become
void or suspended, or (ii) the insurance risk under any such policy would (in
the opinion of the insurer thereunder) be made greater; and
(b) shall pay as Additional Rent the amount of any increase in any
premium for such insurance resulting from any breach of such covenant. [SEE
PARAGRAPH 28 OF RIDER]
11.2 Insurance to be maintained by Tenant. The Tenant shall maintain at
its expense, throughout the Term, insurance against loss or liability in
connection with bodily injury, death, property damage and destruction, occurring
within the Premises or arising out of the use thereof by the Tenant or its
agents, employees, officers or invitees, visitors and guests under one or more
policies of general public liability insurance having such limits as to each as
are reasonably required by the Landlord from time to time (but in any event of
not less than (a) One Million Dollars ($1,000,000.00) for injury to or death of
any one or more persons during any one occurrence, and (b) Five Hundred Thousand
Dollars ($500,000.00) for property damage or destruction during any one
occurrence. Such policies shall provide that they shall not be cancelable
without at least thirty (30) days' prior written notice to the Landlord (and, at
the Landlord's request, any such Mortgagee), and shall be issued by insurers of
recognized responsibility licensed to do business in Maryland. [SEE PARAGRAPH
29 OF RIDER]
11.3. Insurance to be maintained by Landlord. The Landlord shall maintain
throughout the Term all-risk or fire and extended coverage insurance upon the
Building, in such minimum amounts and having such forms of coverage as are
required from time to time by the Landlord's lender. The cost of the premiums
for such insurance and of each endorsement thereto shall be deemed, for purposes
of Section 3, to be part of the costs of operating and maintaining the property.
[SEE PARAGRAPH 30 OF RIDER]
11.4 [Crossed out]
11.5 Liability of parties. Except if and to the extent that such party is
released from liability to the other party hereto pursuant to the provisions of
subsection 11.4,
(a) the Landlord (i) shall be responsible for, and shall indemnify
and hold harmless the Tenant against and from any and all liability arising out
of, any injury to or death of any person or damage to any property, occurring
anywhere upon the Property, if, only if and to the extent that such injury,
death or damage is proximately caused by the negligent or intentional act or
omission of the Landlord or its agents, officers or employees, but (ii) shall
not be responsible for or be obligated to indemnify or hold harmless the Tenant
against or from any liability for any such injury, death or damage occurring
anywhere upon the Property (including the Premises), by reason of the Tenant's
occupancy or use of the Premises or any other portion of the Property, or
because of fire, windstorm, act of God or other cause unless proximately caused
by such negligent or intentionally tortious act or omission, as aforesaid; and
4
(b) subject to the operation and effect of the foregoing provisions
of this subsection, the Tenant shall be responsible for, and shall indemnify and
hold harmless the Landlord against and from any and all liability arising out of
any injury to or death of any person or damage to any property, occurring within
the Premises. [SEE PARAGRAPH 31 OF RIDER]
Section 12. Eminent domain.
12.1 Right to award.
(a) If any or all of the Premises are taken by the exercise of any
power of eminent domain or are conveyed to or at the direction of any
governmental entity under a threat of any such taking (each of which is
hereinafter referred to as a "Condemnation"), the Landlord shall be entitled to
collect from the condemning authority thereunder the entire amount of any award
made in any such proceeding or as consideration for such deed, without deduction
therefrom for any leasehold or other estate held by the Tenant by virtue of this
Lease [SEE PARAGRAPH 32 OF RIDER]
(b) The Tenant hereby (i) assigns to the Landlord all of the Tenant's
right, title and interest, if any, in and to any such award, (ii) waives any
right which it may otherwise have in connection with such Condemnation, against
the Landlord or such condemning authority, to any payment for (A) the value of
the then unexpired portion of the Term, (B) leasehold damages and (C) any damage
to or diminution of the value of the Tenant's leasehold interest hereunder or
any portion of the Premises not covered by such Condemnation; and (iii) agrees
to execute any and all further documents which may be required in order to
facilitate the Landlord's collection of any and all such awards
(c) [Crossed out]
12.2 Effect of Condemnation [SEE PARAGRAPH 33 OF RIDER]
12.3 If there is a Condemnation, the Landlord shall have no liability to
the Tenant on account of any (a) interruption of the Tenant's business upon the
Premises, (b) diminution in the Tenant's ability to use the Premises, or (c)
other injury or damage sustained by the Tenant as a result of such Condemnation.
12.4 Except for any separate proceeding brought by the Tenant under the
provisions of paragraph 12.1(c) the Landlord shall be entitled to conduct any
such condemnation proceeding and any settlement thereof free of interference
from the Tenant, and the Tenant hereby waives any right which it might otherwise
have to participate therein.
Section 13. Mechanics' and materialmen's liens. The Tenant shall
13.1 bond, remove or have removed any mechanics', materialmen's or other
lien filed or claimed against any or all of the Premises, the Property, or any
other property owned or leased by the Landlord, by reason of labor or materials
provided for or at the request of the Tenant or any of its contractors or
subcontractors (other than labor or materials provided by the Landlord pursuant
to this Lease, or otherwise arising out of the Tenant's use or occupancy of the
Premises or any other portion of the Property, and
13.2 Indemnify and hold harmless the Landlord against and from any and all
liability or expense (including, by way of example rather than of limitation,
that of reasonable attorneys' fees) incurred by the Landlord on account of any
such lien or claim.
Section 14. Quiet enjoyment; surrender.
14.1 Quiet enjoyment. The Landlord hereby covenants that the Tenant, on
paying the Rent and performing the covenants set forth herein, shall peaceably
and quietly hold and enjoy, throughout the Term, (a) the Premises, and (b) such
rights as the Tenant may hold hereunder with respect to the remainder of the
Property (including, by way of example rather than of limitation, any such right
to use any parking lot within the Property).
14.2 Surrender.
(a) Upon the expiration or earlier termination of the Term, the
Tenant shall surrender the Premises to the Landlord in good order and repair
(damages reasonably beyond the Tenant's control and ordinary wear and tear
excepted), and broom clean. [SEE PARAGRAPH 34 OF RIDER]
(b) Any and all improvements, repairs, alterations and all other
property attached to, used in connection with or otherwise installed upon the
Premises (i) shall immediately upon the completion of the installation thereof,
be and become the Landlord's property without payment therefor by the Landlord,
and (ii) shall be surrendered to the Landlord upon the expiration or earlier
termination of the Term, except that any machinery, equipment or fixtures
installed by the Tenant and used in the conduct of the Tenant's trade or
business (rather than to service the Premises or any of the remainder of the
Building or the property generally) shall remain the Tenant's property and shall
be removed by the Tenant within five (5) days after the expiration or earlier
termination of the Term, and the Tenant shall promptly thereafter fully restore
any of the Premises or the Building damaged by such installation or removal
thereof. [SEE PARAGRAPH 35 OF RIDER]
Section 15. Rules and Regulations. The Landlord hereby reserves the right
to prescribe, at its sole discretion, reasonable rules and regulations
(hereinafter referred to as the "Rules and Regulations"), having uniform
applicability to all tenants of the Building and governing the use and enjoyment
of the Building and the remainder of the Property; provided, that the Rules and
Regulations shall not materially interfere with the Tenant's use and enjoyment
of the Premises, in accordance with the provisions of this Lease. The Tenant
shall adhere to the Rules and Regulations and shall cause its agents, employees,
invitees, visitors and guests to do so. A copy of the Rules and Regulations in
effect on the date hereof is attached hereto as Exhibit C.
Section 16. Subordination; attornment and non-disturbance.
16.1 Subordination. This Lease shall be subject and subordinate at all
times to the lien of any first mortgage, first deed of trust, ground lease
heretofore or hereafter placed by the Landlord upon any or all of the Premises
or the remainder of the Property and of all renewals, modifications,
consolidations, replacements and extensions thereof (each of which is herein
referred to as a "Mortgage"), all automatically and without the necessity of any
further action on the part of the Tenant to effectuate such subordination. [SEE
PARAGRAPH 36 OF RIDER]
16.2 Attornment and non-disturbance. The Tenant shall, promptly at the
request of the Landlord or the holder of any Mortgage (herein referred to as a
"Mortgagee"),
(a) execute, enseal, acknowledge and deliver such further instrument
or instruments evidencing such subordination as the Landlord or such Mortgagee
may deem necessary or desirable, and
(b) attorn to such Mortgagee, provided that such Mortgagee agrees
with the Tenant that such Mortgagee will, in the event of a foreclosure of any
such first mortgage or deed of trust (or termination of any such ground lease)
take no action to interfere with the Tenant's rights hereunder, except upon the
occurrence of an Event of Default.
5
16.3 Anything contained in the provisions of this Section to the contrary
notwithstanding, any Mortgagee may at any time subordinate the lien of its
Mortgage to the operation and effect of this Lease without the necessity of
obtaining the Tenant's consent thereto, by giving the Tenant written notice
thereof, in which event this Lease shall be deemed to be senior to such Mortgage
without regard to their respective dates of execution, delivery and/or
recordation among the Land Records of the said County, and thereafter such
Mortgagee shall have the same rights with respect to this Lease as though this
Lease had been executed and recorded among the said Land Records before the
execution and delivery of such Mortgage.
Section 17. Estoppel certificate. The Tenant shall from time to time,
after being requested to do so by the Landlord or any first Mortgagee, execute,
enseal, acknowledge and deliver to the Landlord an instrument in recordable
form, [SEE PARAGRAPH 37 OF RIDER]
17.1 certifying
(a) that this Lease is unmodified and in full force and effect (or,
if there has been any modification thereof, that it is in full force and effect
as so modified, stating therein the nature of such modification);
(b) as to the dates to which the Base Rent and any Additional Rent
and other charges arising hereunder have been paid in advance of the dates on
which payment thereof is due hereunder, if any;
(c) as to the amount of any prepaid Rent or any credit due to the
Tenant hereunder;
(d) that the Tenant has accepted possession of the Premises, and the
date on which the Term commenced;
(e) as to whether, to the best knowledge, information and belief of
the signer of such certificate, the Landlord is then in default in the
performance of any of its obligations hereunder (and, if so, specifying the
nature of each such default); and
(f) as to any other fact or condition reasonably requested by the
Landlord, any first Mortgagee or prospective first Mortgagee or purchaser of any
or all of the Premises, the Property or any interest therein, or any assignee or
prospective assignee of any interest of the Landlord under this Lease; and
17.2 acknowledging and agreeing that any statement contained in any such
certificate may be relied upon by the Landlord and any such other person.
Section 18 Notices.
(a) and (b) [SEE PARAGRAPH 38 OF RIDER]
18.1. [Crossed out]
18.2. [Crossed out]
Section 19. General.
19.1 Effectiveness. This Lease shall become effective upon and only upon
the execution and delivery hereof by each party hereto.
19.2 Complete understanding. This Lease represents the complete
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior negotiations, representations, warranties, statements or
agreements, either written or oral, between the parties hereto as to the same.
19.3 Amendment. This Lease may be amended by and only by an instrument
executed and delivered by each party hereto.
19.4 Applicable law. This Lease shall be given effect and construed by
application of the law of Maryland, and any action or proceeding arising
hereunder shall be brought in the course of Maryland; provided, that if any such
action or proceeding arises under the Constitution, laws or treaties of the
United States of America, or if there is a diversity of citizenship between the
parties thereto, so that it is to be brought in a United States District Court,
it shall be brought in the United States District Court for the District of
Maryland.
19.5 Waiver. The Landlord shall not be deemed to have waived the exercise
of any right which it holds hereunder unless such waiver is made expressly and
in writing (and no delay or omission by the Landlord in exercising any such
right shall be deemed to be a waiver of the future exercise thereof). No such
waiver made with respect to any instance involving the exercise of any such
right shall be deemed to be a waiver with respect to any other such instance, or
any other such right.
19.6 Time of essence. Time shall be of the essence of this Lease.
19.7 Headings. The headings of the Sections, subsections, paragraphs and
subparagraphs hereof are provided herein for and only for convenience of
reference, and shall not be considered in construing their contents.
19.8 Construction. As used herein,
(a) the term "person" means a natural person; a trustee, a
corporation, a partnership and any other form of legal entity; and
(b) all references made (i) in the neuter, masculine or feminine
gender shall be deemed to have been made in all such genders, (ii) in the
singular or plural number shall be deemed to have been made, respectively, in
the plural or singular number as well, and (iii) to any Section, subsection,
paragraph or subparagraph shall, unless therein expressly indicated to the
contrary, be deemed to have been made to such Section, subsection, paragraph or
subparagraph of this Lease.
19.9 Exhibits. Each writing or plat referred to herein as being attached
hereto as an exhibit or otherwise designated herein as an exhibit hereto is
hereby made a part hereof.
19.10 Severability. No determination by any court, governmental body or
otherwise that any provision of this Lease or any amendment hereof is invalid or
unenforceable in any instance shall affect the validity or enforceability of (a)
any other provision thereof, or (b) such provision in any circumstance not
controlled by such determination. Each such provision shall be valid and
enforceable to the fullest extent allowed by, and shall be construed wherever
possible as being consistent with, applicable law, and enforceable to the
fullest extent allowed by, and shall be construed wherever possible as being
consistent with, applicable law.
19.11. Definition of "the Landlord".
19.11.1 As used herein, the term "the Landlord" means the entity
hereinabove named as such, and its heirs, personal representatives, successors
and assigns (each of whom shall have the same rights, remedies, powers,
authorities and privileges as it would have had, had it originally signed this
Lease as the Landlord).
19.11.2 No person holding the Landlord's interest hereunder (whether
or not such person is named as "the Landlord" herein) shall have any liability
hereunder after such person ceases to hold such interest, except for any such
liability accruing while such person holds such interest.
19.11.3 Neither the Landlord nor any principal of the Landlord,
whether disclosed or undisclosed, shall have any personal liability under any
provision of this Lease. If the Landlord defaults in the performance of any of
its obligations hereunder or
6
otherwise, the Tenant shall look solely to the Landlord's equity, interest and
rights in the Property for satisfaction of the Tenant's remedies on account
thereof.
19.12 Definition of "the Tenant". As used herein, the term "the Tenant"
means each person hereinabove named as such and such person's heirs, personal
representatives, successors and assigns, each of whom shall have the same
obligations, liabilities, rights and privileges as it would have possessed had
it originally executed this Lease as the Tenant; provided, that no such right or
privilege shall inure to the benefit of any assignee of the Tenant, immediate or
remote, unless the assignment to such assignee is made in accordance with the
provisions of this Lease. Whenever two or more persons constitute the Tenant,
all such persons shall be jointly and severally liable for the performance of
the Tenant's obligations hereunder. [SEE PARAGRAPHS 39 THROUGH 43.2. OF RIDER]
IN WITNESS WHEREOF, each party hereto has executed and ensealed this Lease,
or has caused it to be executed and ensealed on its behalf by its duly
authorized representatives, the day and year first above written.
WITNESS; XXXXX & ASSOCIATES - METRO EAST
EXECUTIVE TERRACE LIMITED
/s/ PARTNERSHIP
--------------------
by /s/ Xxxxxxxx X. Xxxx, III (SEAL)
----------------------------
The Landlord (General Partner)
WITNESS or ATTEST: DIGITAL EQUIPMENT CORPORATION
by /s/ Xxxx X. Xxxxxx (SEAL)
-------------------- ----------------------------
Xxxx X. Xxxxxx, Manager
Corporate Real Estate Acquisition
7
METRO EXECUTIVE TERRACE
AGREEMENT OF LEASE
by and between
XXXXX & ASSOCIATES-METRO EAST EXECUTIVE
TERRACE LIMITED PARTNERSHIP
and
DIGITAL EQUIPMENT CORPORATION
(covering 29,600 square feet)
RIDER
The following provisions form part of this Lease, as if set forth at
length in the attached printed form:
l. The following is added at the end of the "WITNESSETH" paragraph
on page l of the Lease:
"This demise is given together with rights of ingress and egress
thereto, and with the right in common with others to use the elevators
and common passageways, stairways, vestibules and to pass over and to
park on that portion of the Property as set forth elsewhere in this
Lease. The Premises consist of 29,600 net rentable square feet and
the Building consists of 148,000 net rentable square feet."
2. The following is hereby added as Section l of the Lease:
1.1. ORIGINAL TERM. This Lease shall be for an original term
(hereinafter referred to as "the Original Term") (a) commencing on the
date (hereinafter referred to as "the Commencement Date") on which the
Improvements are "substantially completed" (as that term is defined by
the provisions of subsection 5.7) and (b) terminating on the last day
of the calendar month containing the date which is the fifth (5th)
anniversary of the one hundred eightieth (180th) day after the
Commencement Date (hereinafter referred to as "the Termination Date").
1.2. RENEWAL TERM. The Tenant shall be entitled to renew this
Lease for an additional term (hereinafter referred to as "the Renewal
Term") of five (5) years, commencing at the expiration of the Original
Term and terminating on the fifth (5th) anniversary of such expiration
(which anniversary shall, if this Lease is so renewed, thereafter be
the Termination Date for all purposes of the provisions of this Lease
as applicable thereafter), by and only by giving to the Landlord
express, written notice of such renewal by not less than one hundred
eighty (180) days before the date on which the Renewal Term is to
commence (the Original Term and, if this Lease is renewed
for the Renewal Term or otherwise; the period of any such renewal
being herein referred to collectively as "the Term").
3. The following is hereby added as subsection 2.1 of the Lease:
"Tenant may use the Premises (i) for general and executive
offices; (ii) for retail sales to the public of computers and
computer-related supplies and accessories; (iii) to service computers
and associated equipment; (iv) to take in computers and associated
equipment from the public for servicing at the Premises; (v) to have
the public pick up serviced items at the Premises; (vi) to ship such
lets in need of servicing from the Premises; and (vii) for education
and training of Tenant's employees, customers, and any other person
designated by Tenant.
Landlord will procure all certificates of occupancy or other
licenses and permits which may be required for the Tenant legally to
occupy the Premises, prior to the time Tenant occupies the Premises
for the aforesaid purposes, provided that any special business
permits or licenses which may be required of Tenant to conduct its
business at the Premises are the responsibility of Tenant. Tenant
agrees that it will aid the Landlord in the obtaining of such licenses
and permits if its assistance is required by the issuing authority or
authorities, but such assistance shall be given at no cost to Tenant
therefor."
4. The following provisions are hereby inserted at the end of
subsection 2.2:
"The Landlord hereby certifies that, as of the date of this
Lease, the Landlord has no actual knowledge of the noncompliance of
the Premises with any relevant laws, codes, ordinances or regulations
and the Landlord represents that the zoning classification of the
Premises, as of the date of this Lease, permits the use of the
Premises for the purposes set forth in section 2."
5. In subsection 2.3, after the words "within the Building", add
"except in areas designated by the Landlord for such purpose".
6. The provisions of clause (A) of subparagraph 3.1(a)(i) are hereby
deleted, and the following provisions are hereby inserted therein in their
place:
"(A) for the first Lease Year during the Original Term, is in the
sum of zero dollars ($0.00), and for the second Lease Year during the
Original Term, is in the sum of Three Hundred Eighty-Four Thousand
Eight Hundred Dollars ($384,800) plus (if the second Lease Year
commences on a day other than the first (lst) day of a calendar
month), $1,054.24 for each day of such calendar month falling within
the second Lease Year; and"
7. The following clauses (C) and (D) are hereby inserted in
subparagraph 3.1(a)(i), immediately after clause (B) thereof:
"(C) for the first Lease Year during the Renewal Term, is in a
sum equaling the greater of (l) the Net Component for the
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immediately preceding Lease Year, or (2) the product obtained by
multiplying (I) the said sum of Three Hundred Eighty-Four Thousand
Eight Hundred Dollars ($384,800) by (II) a fraction, the numerator of
which is the Consumer Price Index for the calendar month immediately
preceding that during which the Renewal Term commences, and the
denominator of which is the Consumer Price Index for the calendar
month containing the Commencement Date; and
(D) for each Lease Year thereafter during the Renewal Term, is in
a sum equaling the greater of (l) the Net Component for the
immediately preceding Lease Year, or (2) the product obtained by
multiplying (I) the Net Component for the first Lease Year during the
Renewal Term by (II) a fraction, the numerator of which is the total
of (x) the Consumer Price Index for the calendar month during which
the Renewal Term commences, plus (y) twenty-five percent (25%) of the
amount by which the Consumer Price Index for the calendar month
immediately preceding that during which such Lease Year commences
exceeds the Consumer Price Index for the calendar month during which
the Renewal Term commences, and the denominator of which is the
Consumer Price Index for the calendar month during which the Renewal
Term commences (the parties hereto hereby agreeing that those
provisions of clause (B) of this subparagraph 3.1(a)(i) which are set
forth in the parentheticals beginning on the ninth line of such clause
and continuing through the end thereof shall be applicable to the
provisions of clause (C) and this clause (D) as well); and"
8. The provisions of subparagraph 3.1(a)(ii) are hereby deleted, and
the following provisions are hereby inserted therein in their place:
"(ii) COSTS COMPONENT. An initial operating costs component
(hereinafter referred to as the 'Costs Component') which, (A) for the
first Lease Year during the Original Term, is in the sum of Zero
Dollars ($0.00), and (B) for the second Lease Year during the Original
Term, is in the sum of One Hundred Thirteen Thousand Nine Hundred
Sixty and 00/100 Dollars ($l13,960.00) plus (if the second Lease Year
commences on a day other than the first (lst) day of a calendar
month), $312.12 for each day of such calendar month falling within the
second Lease Year, and (C) for each Lease Year during the Original
Term after the second Lease Year, is in the sum of One Hundred
Thirteen Thousand Nine Hundred Sixty and 00/100 Dollars ($113,960.00),
and (D) for each Lease Year during the Renewal Term, is in a sum
equaling the total of One Hundred Thirteen Thousand Nine Hundred Sixty
and 00/100 Dollars ($113,960.00) plus the amount of the Additional
Rent payable under the provisions of subSection 3.2 for the
calendar year immediately preceding that during which the Renewal Term
begins, all without impairing the Tenant's liability for any
Additional Rent accruing under the provisions of subsection 3.2."
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9. The provisions of paragraph 3.1(c) are hereby deleted, and the
following provisions are hereby inserted therein in their place:
"(c) LEASE YEAR. As used in the provisions of this Lease, the
term 'Lease Year' means (i) the period commencing on the Commencement
Date and terminating on the one hundred eightieth (180th) day after
the Commencement Date (which period shall constitute the first Lease
Year for purposes of the provisions of this Lease), and (ii) the
period commencing on the one hundred eighty-first (181st) day after
the Commencement Date and terminating on the last day of the calendar
month containing the date which is the first (lst) anniversary of the
said one hundred eightieth (180th) day (which period shall constitute
the second Lease Year for purposes of the provisions of this Lease),
and (iii) each successive period of twelve (12) calendar months
thereafter during the Term."
l0. In paragraph 3.2(a),
(A) add on the fourth line after the words "(whether regular or
special)" the words "except for penalties" and after "(ii) charges or
fees", add the words "except for penalties."
(B) add a clause (vi) as follows: "(vi) reasonable and competitive
management fees and overhead expenses for the Landover, Maryland area."
ll. The following specific items shall not be included in the
computation of Annual Operating Costs pursuant to paragraph 3.2(a) of the
Lease, to the extent set forth below:
a. Wages of all employees of Landlord over a building manager level
or employees whose time is not directly allocated to the management of the
Building;
b. Bonuses to employees of Landlord;
c. The costs of finishing rented space for tenants other than
Tenant;
d. Capital improvements;
e. Depreciation;
f. The cost of work or services of a type provided exclusively to or
for other tenants but not to the Tenant, excluding from this exclusion the
costs of building standard utilities (other than electricity) and building
standard janitorial and trash removal service, provided to other tenants;
g. Expenses directly payable by other tenants or occupants of the
Building (other than in the form of additional rent);
h. Brokers' commissions;
i. Debt service;
j. Legal expenses, but excluding from this exclusion legal expenses
incurred by Landlord in connection with its maintenance and operation of
the Premises, the Building or the Property;
-4-
k. Audit expenses incurred for income tax purposes, but excluding
from this exclusion expenses of audits done for purposes of rental
allocation;
l. Marketing expenses;
m. Expenses recovered under warranties and guarantees (the Landlord
hereby agreeing to use reasonable efforts to recover any such expenses
where recoverable thereunder); and
n. Rent paid under ground or prime leases.
12. Notwithstanding anything to the contrary contained in paragraph
3.2(f), (a) Landlord may make a reasonable estimate of Additional Rent
thereunder not more than once with respect to each calendar year during the
Term, and (b) the amount of such estimated Additional Rent shall not exceed
one hundred ten percent (ll0%) of the actual amount of the Additional Rent
payable under the provisions of subsection 3.2 for the immediately
preceding calendar year; provided, that such limitation shall not alter or
impair the Tenant's obligation to pay to the Landlord the actual amount of
such Additional Rent when computed and certified to the Tenant as
aforesaid, regardless of the amount: thereof.
13. Add the following parenthetical after the words "twelve (12)" in
paragraph 3.3(a): "(six (6), in the case of the first Lease Year)".
14. Paragraph 3.3(c) shall read as follows:
"(c) Each such payment shall be made promptly, when due, without
deduction or setoff whatsoever except as otherwise provided herein,
and without demand, failing which the Tenant shall pay to the Landlord
(after any notice and any applicable cure period to which the Tenant
may be entitled by the provisions of this Lease), as additional rent
for each day thereafter on which such payment is due but unpaid, a
late charge at a rate per annum which is two percentage points above
the prime rate of interest per annum then quoted by The Xxxxx National
Bank of Washington, D.C."
15. Add the following as paragraphs 3.3(d) and (e):
"(d) Tenant, or its accountants, shall have the right to inspect
Landlord's books and records to verify any increase in Annual
Operating Costs. Appropriate adjustments thereto shall be made if any
error is discovered in the computation of Annual Operating Costs.
(f) In the event Landlord contests any tax for which Tenant is
obligated to reimburse Landlord hereunder Tenant shall be entitled to
receive its proportionate share of any refund derived therefrom by the
Landlord. Such refund shall be reduced by the amount of actual
attorney's fees, actual appraisal fees and other related expenses paid
by Landlord as part of the contest. If the Tenant desires that the
Landlord contest any such taxes, the Tenant shall request the Landlord
to do so in writing, and the parties hereto shall discuss with each
other whether doing so would be a sound business decision (including
as one of the factors to be considered the possibility that the taxing
-5-
authorities could be entitled as a result of such contest to increase
the taxes levied against the Property).
16. Subsection 3.6 of the Lease shall be modified by adding on the
sixth line thereof after the words "Tenant shall pay the amount thereof as
Additional Rent the words "within thirty (30) days after demand therefor,
unless the Tenant is prohibited by law from doing so; in which event the
Landlord shall pay same in the first instance and Tenant shall reimburse
Landlord within thirty (30) days after demand therefor."
17. Add a new subsection 4.2 as follows:
"Landlord hereby grants to Tenant the right to assign this Lease
or to sublet all or any portion of the Premises throughout the Term
provided Tenant first obtains Landlord's consent to such assignment or
subletting in writing, which consent shall not be unreasonably
withheld or delayed. It is hereby agreed by Landlord and Tenant that
the financial condition of any subtenant shall not be considered by
Landlord in granting or withholding the consent herein required. In
the event Landlord does not respond to the written request for such
consent within thirty (30) days after the date of such request from
Tenant, Landlord's consent shall hereby be deemed given. Landlord's
consent or refusal of consent shall be in writing and, if Landlord
refuses consent, the reasons for such refusal are to be stated with
particularity. No such action taken with or without the Landlord's
consent shall in any way relieve or release the Tenant from liability
for the timely performance of all of the Tenant's obligations
hereunder.
Notwithstanding anything to the contrary herein contained, Tenant
may assign or sublet all or any portion(s) of the Premises at any time
to a subsidiary of Tenant, to the entity with which or into which
Tenant may merge, whether or not Tenant is the survivor of such
merger, or to any entity with which Tenant is affiliated, without the
need for Landlord's consent to such assignment or subletting.
Landlord shall be entitled to receive and retain, and the Tenant
shall promptly remit to the Landlord, fifty percent (50%) of any
profit which may inure to the Tenant's benefit as a result of any such
assignment, subletting or underletting, whether or not consented to by
the Landlord. In computing the amount of profit, if any, which may
inure to the Tenant's benefit, the sums received by the Tenant as a
result of any such assignment, subletting or underletting shall be
reduced by the amount of any brokerage commissions or tenant
improvement costs which have been paid by the Tenant as a necessary
part of the Tenant's subletting the Premises or assigning this Lease.
18. The following is hereby inserted as Section 5:
"Section 5. IMPROVEMENTS TO THE PREMISES.
5.1. The Tenant shall at its expense cause to be prepared and
submitted to the Landlord on or before January 15, 1985, full and
complete plans and specifications for the tenant finish
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work and other improvements (hereinafter referred to as "the
Improvements") which are to be made to the Premises, for review and,
if satisfactory to the Landlord in its reasonable discretion, approval
by the Landlord (which approval shall not unreasonably be withheld or
delayed). Once the said plans and specifications are in a form
satisfactory to each party hereto, the parties hereto shall agree in
writing on a schedule identifying such plans and specifications as so
approved (hereinafter referred to as "the Approved Plans and
Specifications"), and identifying such schedule as Exhibit B to this
Lease. The date on which the parties do so is hereinafter referred to
as "the Plan Approval Date". If the Plan Approval Date has not
occurred within fourteen (14) days after the Tenant has delivered full
and complete plans and specifications to the Landlord, as aforesaid,
then either party hereto may, at any time thereafter and before the
Plan Approval Date occurs, by giving express, written notice thereof
to the other, terminate this Lease as of a date specified in such
notice which shall be at least ten (l0) days after the date on which
such notice is given, in which event this Lease shall terminate on the
date so specified unless prior thereto the said plans and
specifications shall have been approved in writing by each party
hereto. The parties hereto hereby acknowledge. and agree (a) that the
Landlord shall provide at its sole expense, as part of the shell of
the Building, the bathrooms; lobby; stairwells; electrical, mechanical
and janitor's rooms; ceiling grid; window blinds; and building
perimeter walls with a prime coat of paint, all as shown in the
Landlord's basic floor plan of the Building as attached hereto as
Exhibit A; (b) that the Tenant shall be entitled to show and include
in the said plans and specifications as submitted to the Landlord for
the Landlord's review and approval a sign consisting of the words
"Digital Equipment Corporation" to be placed at the Tenant's expense
on the exterior of the Building, in which event, on approval by the
Landlord (which shall not as to such sign be unreasonably withheld),
the size, form and location of such sign will be set forth in the
Approved Plans and Specifications; (c) that the Tenant shall be
entitled from time to time during the Term to alter or replace such
sign with the Landlord's prior, written approval (which shall not
unreasonably be withheld), provided that such sign, as so altered or
replaced, is of substantially the same size as that shown in the
Approved Plans and Specifications, contains no flashing or other
moving light, and is to be constructed of materials similar to those
of the sign shown on the Approved Plans and Specifications and (d) the
Landlord shall not allow any other sign (other than directional and
similar signs at street level) to be placed on the Building during the
Term without obtaining the Tenant's prior written consent thereto
(which shall not unreasonably be withheld).
5.2. Notwithstanding anything to the contrary contained herein,
Tenant's consent to the Approved Plans and Specifications shall not
(i) constitute an opinion or agreement by Tenant that the work shown
therein is structurally sufficient or that said plans or the work are
in compliance with all laws (it
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being agreed that such compliance is solely Landlord's
responsibility); (ii) impose any present or future liability on
Tenant; (iii) constitute a waiver of any of Tenant's rights hereunder
to require the Improvements to be constructed in accordance with
applicable law or (iv) impose additional obligations on Tenant (it
being agreed by the parties hereto that total responsibility for the
design and construction of the Improvements, other than the Tenant
Equipment, is the Landlord's).
5.3. The Approved Plans and Specification shall be final and shall
not be changed by Landlord without the prior consent of Tenant which shall
not be unreasonably withheld.
5.4. CONSTRUCTION.
5.4.1. Within fourteen (14) days after the Plan Approval Date,
Landlord covenants and agrees that it shall commence construction of
and diligently proceed to complete all of the Improvements shown in
the Approved Plans and Specifications, (other than the purchase and
delivery to the Premises, in a condition ready for installation, of
those items of equipment listed in a schedule attached hereto as
Exhibit D (hereinafter referred to as "the Tenant Equipment"), for
which purchase and delivery the parties hereto hereby agree the
Landlord shall not be responsible).
5.4.2. Within seven (7) days after the Plan Approval Date, the
Landlord shall enter into a contract (hereinafter referred to as "the
Xxxxxxx Contract") with Xxxxxxx Industrial Construction Company
(hereinafter referred to as "Xxxxxxx") calling for Xxxxxxx'x
construction of the Improvements in accordance with the Approved Plans
and Specifications for a fixed contract price (hereinafter referred to
as "the Total Base Contract Price"), not exceeding an amount to be
stipulated by written agreement of the parties hereto on or before the
Plan Approval Date. Of the Total Base Contract Price, the Landlord
shall bear the first $210,160.00 thereof, and the Tenant shall bear
the remainder thereof (hereinafter referred to as "the Tenant
Contribution"). The Tenant shall pay the Tenant Contribution, if any,
to the Landlord in monthly installments on the date on which the
Landlord has first paid the aggregate sum of $210,160 to Xxxxxxx under
the Xxxxxxx Contract and continuing on the first (1st) day of each
calendar month thereafter until the Improvements have been completed
and the Tenant has paid the entire said sum to the Landlord. Each such
installment to be paid by the Tenant. shall be in the amount to which
Xxxxxxx is entitled as of such date to be paid by the Landlord under
the said contract (after crediting the said $2l0,160 paid by the
Landlord), but only for work in place (net of a ten percent (l0%)
"holdback" to be retained by the Tenant until Xxxxxxx has
substantially completed the Improvements, at which point such
"holdback" shall immediately be paid by the Tenant to the Landlord,
and by the Landlord to Xxxxxxx). Tenant's obligation to make each such
payment shall be conditioned upon (a) Landlord's having furnished to
Tenant a
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copy of the requisition for payment provided by Xxxxxxx to Landlord
and covering the labor and materials constituting the work in place
for which such payment to Xxxxxxx is to be made, and (b) the Tenant's
architect for the Improvements having approved the work covered by
such requisition as being work in place and substantially in
accordance with the Approved Plans and Specifications, subject to the
correction of minor, punch list items to be agreed upon by the parties
hereto at the time such determination by Tenant's architect is made.
If Tenant's architect refuses to approve such work it shall state to
the Landlord within ten (10) days after its receipt thereof in writing
and with particularity each portion of the work covered by such
requisition which it believes is not work in place or does not
substantially conform to the Approved Plans and Specifications and the
manner in which it fails to conform, in which event the requisition
shall be deemed to have been approved as to the remainder of the work
covered thereby, and the Tenant shall pay to the Landlord the amount
which it would otherwise have been required to pay to Landlord were
such work approved by Tenant's architect in full, less Tenant's said
percentage of an amount reasonable adequate to pay the cost of causing
the said portions of the work to conform to the Approved Plans and
Specifications. The construction shall be performed in a good and
workmanlike manner, and in compliance with all applicable laws, orders
and regulations of federal, state, county and municipal authorities,
with any direction by any public officer pursuant to law and with all
regulations of any Board of Fire Underwriters having jurisdiction.
Landlord, at its sole cost and expense, shall obtain or cause to be
obtained all building permits, licenses, temporary and permanent
certificates of occupancy and other governmental approvals which may
be required to permit the construction of any of the work contained in
the Approved Plans and Specifications and the occupancy thereof by
Tenant.
5.5. From time to time hereafter, Tenant may require Landlord to
make changes to the work shown in the Approved Plans and
Specifications prior to substantial completion thereof (as herein
defined). If Tenant requests a change, Landlord shall notify Tenant,
in writing, before executing the change, of the cost thereof and/or
the savings to Landlord and the delay, if any, in substantial
completion caused by such change. If the parties cannot agree on the
cost of change it shall be determined with reference to the unit
prices previously furnished by Landlord hereunder and if no unit price
has been agreed upon, then the cost of same shall be determined by
reference to an Independent Arbiter (as herein defined) whose decision
shall be binding and final in such regard. In addition, if the parties
cannot agree on the delay in substantial completion as a result of
such change, same shall be decided by the Independent Arbiter.
Notwithstanding the decision of the Independent Arbiter, if in
Tenant's opinion the cost or delay is unacceptable to Tenant, Tenant
may thereafter withdraw its change order and thereupon Landlord shall
have no obligation to perform any work in
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connection therewith. The costs of the Independent Arbiter shall be
borne equally by both parties hereto. Tenant hereby designates its
employee, Xxxxx Xxxxxxxxxx, to act on its behalf in initiating and
approving change orders for purposes of this Section.
5.6. Any payment for change order work done pursuant to
subsection 5.5 shall be made by Tenant to Landlord within thirty (30)
days after the work which is the subject of the change order is
substantially completed and approved by the Tenant's architect as set
forth in subsection 5.4.
5.7. At any time during the course of construction as herein set
forth, Tenant may enter upon the Premises for purposes of inspecting
the work, taking measurements, making plans, installing trade
fixtures, erecting temporary or permanent signs and doing such other
work as may be appropriate or desirable without being deemed thereby
to have taken possession. Tenant shall use reasonable efforts to
minimize any interference with Landlord's construction work in the
Premises in exercising Tenant's rights under this section.
5.8. "Substantial completion" (or any variation of this phrase
such, as "substantially complete" or "substantially completed", as
used anywhere in this Lease with respect to the Improvements) shall be
deemed to have occurred when the Premises are first available for
uninterrupted use and occupancy by Tenant with a minimum of
interference by Landlord (but regardless of whether any of the Tenant
Equipment not purchased by the Tenant and delivered to the Premises in
a condition ready for installation on or before May 1, 1985
(hereinafter referred to as "Delayed Tenant Equipment") has been
installed or is operable) and the following have occurred:
(i) Construction of the Improvements (other than the Delayed
Tenant Equipment) is completed except for minor punch list items;
(ii) Plumbing, heating, air-conditioning, electrical facilities,
and sprinkler system (installed and tested per specifications) (other
than those items, if any, which are part of the Delayed Tenant
Equipment) shall have been completed to such extent that the
appropriate services to be rendered through such facilities can be and
are being supplied;
(iii) The entrance of the Building shall have been completed
and the means of ingress and egress is in no manner interfered with by
any scaffolding, building materials or other articles;
(iv) A permanent certificate of occupancy for the Premises (as
constructed in accordance with the Approved Plans and Specifications),
or such other written governmental authorization as will allow the
Tenant legally to occupy the Premises, shall have been issued and
delivered to Tenant; and
(v) The parking areas and access roads have been completed
except for minor punch list items.
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If the parties cannot agree on whether the Landlord's construction of
the Improvements is substantially complete, either party may give written
notice to the other that such party desires that the parties agree on an
independent third party (hereinafter referred to as "the Independent
Arbiter"), who upon his selection shall visit the Premises, evaluate the
work and render a written decision on: (i) the state of completeness of the
Improvements and (ii) the date on which substantial completion occurred. In
such event the parties hereto shall agree in writing on the identity of an
Independent Arbiter within five (5) business days after such notice is
given. The party who is found to be in error by the Independent Arbiter
shall pay the Independent Arbiter's expenses.
5.9. Landlord shall complete all punch list items and any other
uncompleted portions of its work as expeditiously as possible after
substantial completion of the construction of the Improvements, but in any
event within thirty (30) days thereafter unless such item cannot be
completed within said thirty (30) day period, in which event Landlord shall
commence the work for such item with all due diligence within said thirty
(30) days and shall complete same within the sixty (60) day period
thereafter.
5.10. If the Improvements (other than the Delayed Tenant
Equipment) are not substantially completed on or before June l, 1985, then
(anything contained in the provisions of Section l to the contrary
notwithstanding) the Commencement Date shall be the earlier to occur of (a)
the date on which the Tenant takes possession of the Premises or (b) the
forty-fifth (45th) day after the date on which the Landlord substantially
completes the Improvements (other than the Delayed Tenant Equipment);
provided, that if the Improvements (other than the Delayed Tenant
Equipment) have not been substantially completed by January 1, 1986, then
Tenant shall have the right to cancel and terminate this Lease upon ten
(l0) days' written notice to Landlord, provided that the Improvements
(other than the Delayed Tenant Equipment) are not substantially completed
by the end of the said ten (l0) day period. In such event, this Lease and
the Term shall at the end of the said ten (l0) day period cease and expire
and thereafter neither party shall have any further rights or obligations
hereunder. Tenant shall have no liability to Landlord for a termination of
this Lease pursuant to this subsection 5.l0.
5.11. Landlord and/or its general contractor shall procure and
maintain in effect during the term of construction, the following insurance
coverages with an insurance company or companies authorized to do business
in Maryland:
l. WORKMEN'S COMPENSATION - Statutory Limits for Maryland,
together with "ALL STATES" and "VOLUNTARY COMPENSATION" and "FOREIGN
COMPENSATION" coverage endorsements.
2. EMPLOYER'S LIABILITY INSURANCE with a limit of $100,000.
3. COMPREHENSIVE LIABILITY - $3,000,000 Combined Single Limit,
including Personal Injury, Contractual and Products/Completed
Operations Liability.
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Coverage must include the following:
A. Premises - Operations
B. Elevators and Hoists
C. Independent Contractor
D. Contractual Liability assumed under this contract
E. Completed Operations - Products
F. Explosion, Underground and Collapse (XCU) Coverage
4. Automobile Liability-Including Owned, Hired and Non-owned
vehicles:
$l,000,000 each person Bodily Injury
$3,000,000 each occurrence Bodily Injury
$250,000 each occurrence Property Injury
Coverage must include the following:
A. Owned vehicles
B. Leased vehicles
C. Hired vehicles
D. Non-owned vehicles
Landlord shall furnish the Tenant with certificates of insurance
evidencing such coverage prior to commencement of any construction
work done under this Lease. The following statement shall appear in
each certificate of insurance provided to Tenant by Landlord
hereunder:
It is agreed that in the event of any material change in,
cancellation, or non-renewal of this policy, thirty (30) days prior
notice will be given to:
DIGITAL EQUIPMENT CORPORATION
0000 Xxxxxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Regional Real Estate Manager
5.12. Landlord shall give prompt notice to Tenant of all losses,
damages, or injuries to any person or to property of Tenant, Landlord, or
third parties which may in any way be related to the Lease or for which a
claim may be made against Tenant. Landlord shall promptly report to Tenant
all such claims of which Landlord has notice, whether related to matters
insured or uninsured. No settlement or payment for any claim, loss, injury,
damage, or other matter as to which Tenant may be charged with an
obligation to make any payment or reimbursement shall be made by Landlord
without the written consent of Tenant, which shall not unreasonably be
withheld or delayed.
The carrying of any of the insurance required hereunder shall not be
interpreted as relieving Landlord of any responsibility to Tenant. Landlord
shall assist and cooperate with any insurance company in the adjustment or
litigation of all claims arising under the terms of this Section.
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Landlord shall procure and maintain Landlord installation floater
insurance to protect its interests and that of its subcontractors during
the course of the construction work.
Tenant does not and will not waive any rights which it may have
against Landlord and/or its representatives for any loss, expense and
damage to persons and property (tangible and intangible) from any cause
whatsoever.
5.13. ACCEPTANCE OF POSSESSION. Except for (a) latent defects or
incomplete work which would not reasonably have been revealed by an
inspection of the Premises made for the purpose of discovering the same
when the Landlord delivers possession of the Premises to the Tenant, and
(b) any other item of incomplete work set forth on a "punch list" prepared
by the Tenant and approved in writing by the Landlord before such delivery
of possession, by its assumption of possession of the Premises the Tenant
shall for all purposes of the provisions of this Lease be deemed to have
accepted the Premises and the Improvements and to have acknowledged them to
be in the condition called for hereunder.
19. The following is substituted as Section 6:
"FIRE AND OTHER CASUALTY
6.1. In the event that the Premises or the Building of which they
form a part should be damaged or destroyed by fire or other casualty
to an extent of fifty percent (50%) or more, or if as a result of fire
or other casualty Tenant's access to the Premises should be
substantially interfered with or become unavailable, then, in such
event, Landlord or Tenant may terminate this Lease by the giving of
written notice to the other within thirty (30) days after the date of
the damage or destruction, in which event this Lease shall terminate
on the one hundred fiftieth (150th) day after the date of such notice
as if that date were the date set forth in this Lease for the
expiration of the Term, unless such restoration is substantially
completed, and such access is restored, within such one hundred fifty
(150) day period.
If this Lease is not terminated as aforesaid, Landlord shall
proceed diligently to repair and restore the Premises and Building
forthwith, to substantially the same condition they were in at the
time immediately preceding the damage or destruction provided,
however, that Landlord shall not be obligated to restore the Tenant
Equipment or Tenant's leasehold improvements or any alterations in the
Premises made by Tenant except to the extent Landlord is reimbursed
for same under its insurance policies. If Landlord has not
substantially completed its restoration within the one hundred fifty
(150) day period after the date of the damage or destruction, Tenant
may terminate this Lease by giving Landlord written notice of
termination within five (5) days after the expiration of one hundred
fifty (150) day period, and on the date set forth in such notice the
Term hereof shall cease and determine as if such date were the date
set forth herein for the expiration of the Term, unless such
restoration is substantially completed within such five (5) day
period.
-13-
6.2. In the event the Premises or the Building of which they form
a part shall be damaged or destroyed by fire or other casualty to an
extent of less than fifty percent (50%), then, and in such event,
Landlord shall proceed diligently to repair and restore the Premises
or the Building, forthwith, to substantially the same condition they
were in at the time immediately preceding the damage or destruction,
but Landlord shall not be obligated to repair and restore the Tenant
Equipment or leasehold improvements made by Tenant nor any alterations
to the Premises made by Tenant (except to the extent Landlord is
reimbursed for same under its insurance policies) provided, however,
that if Landlord shall not have completed substantially its repair and
restoration within the one hundred twenty (120) day period after the
date of the fire or other casualty, then Tenant shall have the right
to terminate this Lease by the giving of written notice to Landlord
within five (5) days after the expiration of such one hundred twenty
(120) day period and on the date set for the termination of the Term,
this Lease shall cease and expire, unless such restoration is
substantially completed within the said five (5) day period.
6.3. From the date of such damage to or destruction by fire or
other casualty of the Premises or Building or part thereof or
substantial interference with the access to the Premises, a
proportionate part of the Base Rent and Additional Rent accruing,
under Section 3, according to the nature and extent of the Premises
rendered unusable by Tenant thereby, shall be abated until the
Premises and such access have been restored, as aforesaid. In the
event this Lease is terminated as hereunder provided, Tenant shall pay
the Base Rent and Additional Rent apportioned to the date of such
termination and thereafter Tenant shall be relieved of all further
liability for the payment thereof.
6.4. Notwithstanding anything to the contrary contained herein,
Landlord's obligation to restore the Premises (except for the Tenant
equipment and Tenant's leasehold improvements and alterations as set
forth in this Section 6) shall not be contingent on Landlord's receipt
of sufficient insurance proceeds and shall not be conditioned upon the
release of such proceeds by the holder of any mortgage covering the
Premises, the Building and/or the Property."
20. The following is substituted as subsection 7.1:
"Landlord covenants that it shall supply or cause to be supplied
to the Premises gas, hot and cold running water for lavatory (and
cooking) and drinking purposes, electricity and sewer service, at no
cost to Tenant (except as set forth hereinbelow, and without impairing
Tenant's obligation to pay Additional Rent under the provisions of
subsection 3.2), during the hours hereinafter set forth. The Landlord
further agrees that the heating system of the Premises is adequate to
heat all areas of the Premises to an inside temperature of
seventy-five (75) degrees Fahrenheit when the outside temperature is
zero (0) degrees Fahrenheit and that the air-conditioning system is
-14-
adequate to cool all areas of the Premises to an inside temperature of
seventy-five (75) degrees Fahrenheit plus or minus two (2) degrees
when relative humidity is fifty percent (50%) plus or minus five
percent (5%) and the outside temperature is ninety-five (95) degrees
dry bulb, seventy-three (73) degrees wet bulb. Unless prevented by
causes beyond Landlord's control, the services to be rendered by
Landlord set forth in this-section shall be provided between the hours
of 8 AM and 5 PM Monday through Friday, and between 9AM and 1 PM on
Saturday, except holidays. Landlord shall also provide five (5) days a
week those cleaning services shown on Exhibit E attached hereto and
made a part hereof.
In the event that the utilities or services which Landlord is
obligated hereunder to provide to the Premises are interrupted such
that they are provided only intermittently or such utilities or
services altogether cease to be provided to the Premises for any
reason whatsoever for a period (hereinafter referred to as "the
Non-Service Period") of ten consecutive (10) days or more, then (a)
after the first ten (10) days of the Non-Service Period the Base Rent
shall be Abated, until such service is again belong provided in
accordance with the provisions of this Lease, in proportion to the
floor area of so much of the Premises as to which such service is not
being provided in accordance with the provisions of this Lease, and
(b) if such service is not restored, so that it is being provided in
accordance with the provisions of this Lease, within forty-five (45)
days after the commencement of the Non-Service Period, the Tenant
shall have the right to cancel and terminate this Lease by giving
written notice to the Landlord at least fifteen (15 days before the
date of such termination set forth in such notice, in which event this
lease shall be canceled and terminated on the date set forth in such
notice, unless such service is restored, as aforesaid, before the end
of such fifteen (15) day period.
21. Section 7.2 of the Lease is modified by adding on line 3 of
subsection (b) after "written approval thereof", the words "which
shall not be unreasonably withheld or delayed."
22. At the end of subsection 7.3(b) add the following:
"All additions made to the Premises shall belong to the Landlord
and shall become part of the Premises, without compensation to Tenant.
The Landlord, without expense to itself, shall cooperate with Tenant
in securing building and other permits, licenses and authorizations
necessary from time to time for work permitted under this Lease."
23. The following shall be added as subsection 7.4:
"7.4 (a) Subject to the provisions of subsection 5.13, Landlord
shall at all times throughout the Term hereof be responsible for and
make all repairs, replacements and perform all maintenance which may
be necessitated by defective design or construction of the Premises
and/or Building, and/or the Improvements (other than the Tenant
Equipment), or which may be necessitated by latent defects in any of
the foregoing.
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(b) In performing its obligations, covenants and agreements under
this Lease, landlord shall not unreasonably interfere with Tenant's
business operations in the Premises.
(c) Landlord, at its sole cost and expense, shall throughout the
Term perform all maintenance and make all repairs and replacements
within and to the structural portions of the Premises, and the
structural and non-structural portions of the common areas and the
remainder of the Building outside of the Premises, and to any and all
electrical, mechanical, plumbing, heating, ventilating, and
air-conditioning systems within the Building (other than the Tenant
Equipment), needed to keep them or it in good working order and
condition and operating to design capacity, whether or not serving or
located in the Premises, and whether ordinary or extraordinary or
foreseen or unforeseen. This provision is not intended to release or
relieve Tenant from payment for any such repair or replacement
necessitated by the negligence or willful acts of Tenant, its agents,
servants, employees or business invitees within the Premises.
(d) Whenever throughout the Term, maintenance, repairs and/or
replacements are required to relieve an emergency situation affecting
the Premises and/or Building and Landlord is obligated to perform such
maintenance or make such repair or replacements under this Lease,
Landlord shall within three (3) hours after notification (which may be
oral) of the need of such maintenance, repairs and/or replacement by
Tenant, provided qualified personnel on the scene to evaluated the
situation and to commence maintenance, repairs and/or replacements and
pursue same to completion with the utmost diligence. In the event the
maintenance, repairs and/or replacements cannot be accomplished within
twenty-four (24) hours after notification of the need therefor as
aforesaid, Landlord, within such twenty-four (24) hour period, shall
provide to Tenant a schedule setting forth the steps to be taken to
effect the maintenance, repairs, and/or replacements and the times
when such work shall be done. In the event of such emergency
situation, Landlord shall do whatever is necessary including requiring
its employees, and/or its contractors to work overtime, weekends, and
holidays in order to accomplish the maintenance, repairs, and/or
replacements in the shortest possible time.
In the event of a non-emergency situation which affects the
Premises and/or Building, and requires maintenance, repairs and/or
replacements for which the Landlord is responsible under this Lease,
the work shall be completed by Landlord within ten (10) days after
notification of the need therefor by Tenant.
"Emergency situation" as herein used is hereby defined to mean a
situation which threatens the physical well-being of persons in the
Premises and/or the Building, or which substantially disrupts the
Tenant's use and/or occupancy of the Premises or any portion thereof
or Tenant's use of parking."
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24. In paragraph 8.2(b) add after the word "ten (10)" in line l
thereof the word "business".
25. In subsection 8.4 add in the first line after "Event of Default"
the phrase "and the expiration of any applicable cure period".
26. Add as a new subsection 8.5 the following:
"Notwithstanding anything to the contrary herein contained, in
order to mitigate the damages which may be incurred because of
Tenant's default, Landlord shall use its reasonable efforts to relet
the Premises by actively offering same for rent."
27. Section 10 of the Lease shall be modified by inserting in
subsection 10. 2 after the words "thereof or" the words "(within the six
(6) month period prior to the expiration of the Term) to".
28. And at the end of subsection 11.1 the following:
"Landlord hereby agrees that the use of the Premises by Tenant in
accordance with the provisions of Section 2 shall no make Landlord's
polices of insurance covering the Property or any liability of
Landlord in connection therewith void or suspended or increase the
insurance risk thereunder or increase the premiums payable therefor."
29. In subsection 11.2 add the following sentence:
"The Tenant shall provide to the Landlord, promptly upon written
demand by the Landlord, certificates of the insurer evidencing the
existence of the insurance coverage required by the foregoing
provisions of this subsection".
30. In subsection 11.3, add the following after the word "lender":
", but in any event in an amount which is not less than the full
replacement cost of the Building, as well as general liability
insurance covering the landlord and having limits of not less than
$l,000,000 per person for injury or death sustained in any one
occurrence, $1,000,000 for injury or death sustained by all persons in
any one occurrence, and $250,000 for property damage in any one
occurrence, with an endorsement having the effect of including in such
coverage contractual liability insurance for the Landlord."
31. In subsection 11.5 add at the end of paragraph (b) after the word
"Premises" the following:
", if, only if and to the extent that such injury, death or
damage is proximately caused by the negligent or intentional act or
omission of the Tenant or its agents, officers or employees. In the
event the Landlord is notified of a claim, action or proceeding, or
becomes aware of an occurrence, which may result in indemnification by
Tenant of Landlord as provided above, the Landlord shall give
immediate written notice to Tenant and provide complete particulars
known by the Landlord. The Landlord shall immediately forward to the
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Tenant every demand, notice, summons or other process received by
Landlord or his representatives.
Tenant (a) has the right to participate with the Landlord in the
defense of any claim, action or proceeding wherein Landlord is
entitled to indemnification under the provisions of this Section and
(b) has the sole right to defend any action, claim or proceeding in
which the Tenant but not the Landlord is named as a defendant.
The parties hereto will fully cooperate with each other in the
defense or settlement of any claim, action, or proceeding."
32. Add at the end of paragraph 12.1(a):
"except that Tenant may prove the value of its equipment and
trade fixtures, its relocation expenses, and the value of any
leasehold improvements (including the Tenant Equipment, but excluding
any other Improvements) paid for by Tenant in any hearing, proceeding
or other method to establish the award to be paid by the condemning
authority and Tenant shall receive the portion of such award
representing the aforestated value."
33. Add a new subsection 12.2 as follows:
"12.2. CONDEMNATION.
(a) If during the Term the whole or a substantial portion of the
Premises or of the Building is taken under the power of eminent
domain, the Term shall terminate as of the time when Landlord shall be
divested of title to the Premises or the Building or substantial
portion thereof, as if such date were the date set forth herein for
the expiration of this Lease, and the Base Rent and Additional Rent
payable hereunder shall xxxxx and be apportioned to the time of such
termination. Substantial portion as used in this Section shall mean a
portion of the Premises and/or the Building in excess of fifty percent
(50%).
(b) If less than a substantial portion of the Premises and/or the
Building shall be taken as contemplated in paragraph 12.2(a) above,
Landlord shall restore the remainder of the Premises and/or the
Building to the condition they were in prior to such taking, and such
restoration shall result in the Building being a complete and
integrated architectural unit; provided however that such repair and
restoration shall be substantially completed within one hundred twenty
(120) days of the date Landlord is divested of title; otherwise Tenant
may terminate the Lease by notice given in writing to Landlord, in
which event this Lease shall terminate on the date set forth in such
notice (which date shall in no event be less than forty-five (45) days
from the date of the notice), unless by such date such repair and
restoration have been substantially completed, all as of such date
were the date set forth herein for the expiration of this Lease.
"Substantial completion" as used herein shall have the meaning set
forth in the provisions of subsection 5.7 of this Lease.
(c) In the event of a taking of less than a substantial portion
of the premises and/or the Building such that the Lease
-18-
shall continue in force and effect for the remainder of the Premises,
this Lease shall terminate as to any portion of the premises so taken,
and the Base Rent and Additional rent payable hereunder shall be
reduced for the remainder of the Term, in proportion to the portion
(if any) of the Premises which is taken, such termination and
reduction to be effective as of the date Landlord is divested of
title.
(d) In the event of a taking of any or all of the parking lot
serving the Building, the Landlord shall (unless such taking is also
of any or all of the Premises or the remainder of the Building and
this Lease is terminated under the foregoing provisions of this
subsection 12.2) provide for the use, by and only by the Tenant and
the other tenants of the Building and their agents, employees and
business invitees, that number, of any, of parking spaces in the
immediate vicinity of the Building as may be necessary for there to be
available (when added to the spaces remaining in the said parking lot
after such taking) at least three and six-tenths (3.6) parking spaces
for each one thousand (1,000) square feet of net rentable floor area
in the Building."
34. Add in subsection 14.2 after "ordinary wear and tear", "fire,
casualty and damage for which Tenant is not responsible under this Lease."
35. Add in paragraph 14.2(b) after "except that" the words "all of
Tenant's personal property and"
36. Add at the end of subsection 16.1 the following:
"provided, however, that the holder of any such Mortgage shall
enter into an agreement with the Tenant that, in the event of
foreclosure by the holder thereof, this Lease and the rights of the
Tenant hereunder shall continue in full force and effect and shall not
be terminated or disturbed except in accordance with the provisions of
this Lease. The Tenant agrees that it will, upon the request of the
Landlord, execute, acknowledge and deliver any and all instruments
deemed by the Landlord necessary or desirable to give effect to or
notice of such subordination. No such instrument shall alter any of
the term, covenants or conditions of this Lease. In the event of the
existence of any Mortgage at the time this Lease is executed and to
which this Lease would be subordinate, Landlord shall obtain the type
of agreement mentioned in this Section in favor of Tenant within
thirty (30) days after the date of Tenant's execution of this Lease."
37. In the first line of Section 17, the words "five (5) days" are
deleted and the words "ten (10) business days" are substituted in its place
and stead.
38. A new Section 18 is inserted as follows:
"Section 18. NOTICES
(a) All notices, demands, requests and other instruments which
may or are required to be given by either party to the
-19-
other under this Lease shall be given in writing. All notices,
demands, requests and other instruments from the Landlord to the
Tenant shall be deemed to have been properly given if sent by United
States Registered or Certified Mail, postage prepaid, return receipt
requested, addressed to the Tenant at Regional Real Estate Manager,
0000 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000, with a copy to
Law Department, Digital Equipment Corporation, 000 Xxxxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000.
(b) All notices, demands, requests and other instruments from the
Tenant to the Landlord shall be deemed properly given if sent by
United States Registered or Certified Mail, postage prepaid, return
receipt requested, addressed to the Landlord at: Xxxxx &
Associates-Metro East Executive Terrace Limited Partnership, 0000
Xxxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 or at such other address
as the Landlord from time to time shall have designated by written
notice to the Tenant."
39. A new Section 20 is hereby added to the Lease as follows:
"Section 20. PARKING
Landlord shall cause all snow and ice to be removed from the
parking area and from the means of ingress and egress thereto on a
timely basis. Tenant may also use the parking area shown on Exhibit A
attached hereto and made a part hereof. Landlord represents and
warrants that the Parking ratio for the Building is 3.6 spaces per
1,000 square feet of rentable area, and that at all times one hundred
forty spaces will be available for use by the Tenant and its employees
and invitees."
40. A new Section 21 is hereby added to the Lease as follows:
"Section 21. DISPUTES
(a) It is agreed that if at any time a dispute shall arise as to
any amount or sum of money to be paid by one party to the other under
the provisions of this Lease, the party against whom the obligation to
pay the money is asserted shall have the right to make payment "under
protest" and such payment shall not be regarded as a voluntary payment
and there shall survive the right on the part of said party to
institute suit for the recovery of such sum, and if it shall be
adjudged that there was no legal obligation on the part of said party
to pay such sum or any part thereof, said party shall be entitled to
recover such sum or as much thereof as it was not legally required to
pay under the provisions of this Lease; and if at any time a dispute
shall arise between the parties hereto as to any work to be performed
by either of them under the provisions of this Lease, the party
against whom the work is asserted may perform such work and pay the
cost thereof "under protest" and the performance of such work shall in
no event be regarded as a voluntary performance and there shall
survive the right on the part of said party to institute suit for the
recovery of the costs of such work, and if it shall be adjudged that
there waS no legal obligation on the part of said party to perform the
same or any part thereof,
-20-
said party shall be entitled to recover the cost of such work or the
cost of so much thereof as said party was not legally required to
perform under the provisions of this Lease."
41. The Landlord agrees for purposes of this Lease, that it shall, at
Tenant's sole expense, cooperate with Tenant in securing building and other
permits, licenses and authorizations necessary from time to time for any
work permitted to be performed by Tenant under this Lease.
42. OPTION TO LEASE ADDITIONAL SPACE. Anything contained in the
provisions of this Lease to the contrary notwithstanding, and provided that
this Lease has been renewed for the Renewal Term, the Tenant shall be
entitled at any time during the period of three (3) years beginning on the
Commencement Date (hereinafter referred to as "the 3-Year Period")
following the Landlord's having notified the Tenant in writing during such
period that such Additional Space is available (and provided that the
Tenant is not then in default in performing its obligations under the
provisions of this Lease), to Lease from the Landlord additional space
containing 6,500 square feet of floor area (hereinafter referred to as "the
Additional Space") on the floor above or the floor below the Premises, in
the Building. The Landlord hereby affirmatively agrees to cause Additional
Spaces containing in the aggregate at least 6,500 square feet of floor area
on one or the other of such floors of the Building to, become available
during the 3-Year Period for lease by the Tenant, as aforesaid. Such
Additional Space having such minimum aggregate floor area may become
available for lease under not more than two (2) Additional Space Leases
(which may consist of amendments of this Lease) commencing at different
times during the 3-Year Period, and/or may be offered at differing times
during the 3-Year Period by the Landlord to the Tenant. The Additional
Space leased under any Additional Space Lease shall be contiguous to that
leased under any other Additional Space Lease. Any such lease of the
Additional Space shall be on the terms hereinafter set forth;
42.1. The Tenant shall be entitled to exercise such right to lease
the Additional Space by giving the Landlord written notice of its exercise
of such right within fifteen (15) business days after the Landlord notifies
the Tenant in writing that the Additional Space is available. If the Tenant
either fails to notify the Landlord in writing of its intent to lease the
Additional Space within the said period of fifteen (15) days, or fails to
execute and return to the Landlord the Additional Space Lease covering such
Additional Space within thirty (30) days (as such period may be extended by
written agreement of the parties hereto) after such Additional Space Lease
is prepared and delivered by the Landlord to the Tenant for such purpose,
the Landlord shall be entitled thereafter to lease any or all such
Additional Space to any person or persons whatsoever, free and clear of the
Tenant's rights under the provisions of this Lease. Any Additional Space
Lease entered into by the parties hereto shall not be inconsistent with the
provisions of this Section 20. No failure by the Tenant to lease any
Additional Space becoming available shall be construed in any manner as a
waiver of the Tenant's rights hereunder to lease any other Additional Space
which may subsequently become available during the 3-Year Period, as
aforesaid, until the Tenant has leased Additional Space having an aggregate
floor area of at least 6,500 square feet.
-21-
42.2. The Tenant's use and occupancy of the Additional Space (a)
shall be for a term which is co-extensive with that portion of the Term of
this Lease (including the Renewal Term) remaining at the entry into such
Additional Space Lease, and (b) shall be set forth in a separate lease
(hereinafter referred to as an "Additional Space Lease") to be entered into
upon the same terms and subject to the same conditions as those set forth
in this Lease; provided, that anything contained in the provisions of this
Lease to the contrary notwithstanding, (a) for purposes of the provisions
of subsection 2.1 of this Lease, as applied to the Additional Space, the
Base Rent for the Additional Space for the Initial Lease Year under such
Additional Space Lease shall equal the result obtained by multiplying the
number of square feet of floor area of the Additional Space covered thereby
by that sum per square foot which the Landlord is then quoting to
prospective tenants of space within the Building (which sum shall be
calculated by the Landlord and a satisfactory explanation thereof provided
to the Tenant); (b) the Additional Space covered thereby shall be delivered
by the Landlord to the Tenant "as is", the Landlord having no obligation to
make any improvements to, or remove any improvements from, or otherwise
alter, such Additional Space; and (c) such Additional Space Lease shall, at
the Landlord's option, provide for the delivery of utility services and the
payment of Taxes in the same manner and using the same procedure as is set
forth in this Lease.
43. RIGHT OF FIRST REFUSAL.
43.1. The Landlord shall not during the Term grant to any person other
than the Tenant the right to purchase any or all of the Property unless the
Landlord has first offered in writing to sell the Property to the Tenant
for a price which is not more than the price at which the Landlord intends
to sell the Property to such other person, as aforesaid, and unless either
(a) Tenant has not, within five (5) days after the Landlord's delivery of
such written offer to the Tenant, accepted such offer in writing and on
terms and subject to conditions which are acceptable to each party hereto,
or (b) if the Tenant does accept such offer within the said period of five
(5) days, the parties hereto have not entered into a written agreement of
sale covering the Tenant's purchase of so much of the Property as is the
subject of such offer, within twenty-one (21) days after the date of such
acceptance. In the event that such written acceptance is not given or such
written agreement not entered into within the respective periods referred
to hereinabove, then the Landlord shall be entitled at any time thereafter
to sell any or all of the Property to any person whatsoever, and the
Tenant's rights under the provisions of this Section 43 shall thereafter be
of no further force or effect.
43.2. In addition, the Landlord shall not during the Term initiate
negotiations with any person for the sale of any or all of the Property
without first notifying the Tenant in writing of the Landlord's intention
to do so and allowing the Tenant a period of ten (10) days after such
notice is given within which to advise the Landlord in writing that the
Tenant desires to purchase the Property (in which event, unless the parties
hereto enter into a written agreement of sale covering such purchase within
twenty-one (21) days after the Tenant gives such notice to the Landlord,
the Landlord shall be entitled at any time thereafter to sell any or all of
the Property to any person whatsoever, and the Tenant's
-22-
rights under the provisions of this Section 43 shall thereafter be of no
further force or effect).
WITNESS: XXXXX & ASSOCIATES-METRO
EAST EXECUTIVE TERRACE
LIMITED PARTNERSHIP, Landlord
/s/ Xxxxxxx X. Xxxx by /s/ Xxxxxxxx X. Xxxx, III (SEAL)
------------------------- ---------------------------
Xxxxxxxx X. Xxxx, III,
General Partner
ATTEST: DIGITAL EQUIPMENT CORPORATION,
Tenant
------------------------- by /s/ Xxxx X. Xxxxxx, (SEAL)
-----------------------
Xxxx X. Xxxxxx, Manager
Date: March, 1985 Corporate Real Estate Acquisition
------------------
-23-
METRO EXECUTIVE TERRACE
AGREEMENT OF LEASE
by and between
XXXXX & ASSOCIATES-METRO EAST EXECUTIVE TERRACE
LIMITED PARTNERSHIP
and
DIGITAL EQUIPMENT CORPORATION
(covering 29,600 square feet)
EXHIBIT A
PLAT SHOWING THE PREMISES
METRO EXECUTIVE TERRACE
AGREEMENT OF LEASE
by and between
XXXXX & ASSOCIATES-METRO EAST EXECUTIVE TERRACE
LIMITED PARTNERSHIP
and
DIGITAL EQUIPMENT CORPORATION
(covering 29,600 square feet)
EXHIBIT B
SCHEDULE OF APPROVED PLANS AND SPECIFICATIONS
METRO EXECUTIVE TERRACE
AGREEMENT OF LEASE
by and between
XXXXX & ASSOCIATES-METRO EAST EXECUTIVE TERRACE
LIMITED PARTNERSHIP
and
DIGITAL EQUIPMENT CORPORATION
(covering 29,600 square feet)
EXHIBIT C
CURRENT RULES AND REGULATIONS
EXHIBIT C
Current Rules and Regulations
1. The sidewalks, lobbies, passages, elevators and stairways shall not be
obstructed by the Tenant or used by the Tenant for any purpose other than
ingress and egress from and to the Tenant's offices. The Landlord shall in all
cases retain the right to control or prevent access thereto by any person whose
presence, in the Landlord's judgment, would be prejudicial to the safety, peace,
character or reputation of the Building or of any tenant of the Property.
2. The toilet rooms, water closets, sinks, faucets, plumbing and other
service apparatus of any kind shall not be used by the Tenant for any purpose
other than those for which they were installed, and no sweepings, rubbish, rags,
ashes, chemicals or other refuse or injurious substances shall be placed therein
or used in connection therewith by the Tenant, or left by the Tenant in the
lobbies, passages, elevators or stairways of the Building.
3. No skylight, window, door or transom of the Building shall be covered
or obstructed by the Tenant, and no window shade, blind, curtain, screen, storm
window, awning or other material shall be installed or placed on any window or
in any window space, except ask approved in writing by the Landlord. If the
Landlord has installed or hereafter installs any shade, blind or curtain in the
Premises, the Tenant shall not remove it without first obtaining the Landlord's
written consent thereto.
4. No sign, lettering, insignia, advertisement, notice or other thing
shall be inscribed, painted, installed, erected or placed in any portion of the
Premises which may be seen from outside the Building, or on any window, window
space or other part of the exterior or interior of the Building, unless first
approved in writing by the Landlord. Names on suite entrances shall be provided
by and only by the Landlord and at the Tenant's expense, using in each instance
lettering of a design and in a form consistent with the other lettering in the
Building, and first approved in writing by the Landlord. The Tenant shall not
erect any stand, booth or showcase or other article or matter in or upon the
Premises and/or the Building without first obtaining the Landlord's written
consent thereto.
5. The Tenant shall not place any additional lock upon any door within the
Premises or elsewhere upon the Property, and shall surrender all keys for all
such locks at the end of the Term. The Landlord shall provide the Tenant with
one set of keys to the Premises when the Tenant assumes possession thereof.
6. The delivery of towels, ice, water, food, beverages, newspapers and
other supplies, equipment and furniture will be permitted only under the
Landlord's direction and control.
7. The Tenant shall not do or permit to be done anything which obstructs
or interferes with the rights of any other tenant of the Property. The Tenant
shall not keep anywhere within the Property any matter having an offensive odor,
or any kerosene, gasoline, benzene, camphene, fuel or other explosive or highly
flammable material. No bird, fish or other animal shall be brought into or kept
in or about the Premises.
8. So that the Premises may be kept in a good state of preservation and
cleanliness, the Tenant shall, while in possession of the Premises, permit only
the Landlord's employees and contractors to clean the Premises unless prior
thereto the Landlord otherwise consents in writing. The Tenant shall see each
day that the windows are closed and the doors securely locked before leaving the
Premises, and that all lights and standard office equipment within the Premises
are turned off.
9. If the Tenant desires to install signaling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices within the Premises, the
Landlord shall direct where and how they are to be installed and, except as so
directed, no installation, boring or cutting shall be permitted without
Landlord's reasonable approval. The Landlord shall have the right (a) to
prevent or interrupt the transmission of excessive, dangerous or annoying
current of electricity or otherwise into or through the Building or the
Premises, (b) [crossed out], (c) to require compliance with such reasonable
rules as the Landlord may establish relating thereto that do not adversely
affect Tenant's use and occupancy of the Premises, and (d) in the event of
noncompliance with such requirements or rules, immediately to cut wiring or do
whatever else it considers necessary to remove the danger, annoyance or
electrical interference with apparatus in any part of the Building. Each wire
installed by the Tenant must be clearly tagged at each distributing board and
junction box and elsewhere where required by the Landlord, with the number of
the office to which such wire leads and the purpose for which it is used,
together with the name of the Tenant or other concern, if any, operating or
using it.
10. A directory will be provided by the Landlord on the ground floor of
the Building, on which the Tenant's name may be placed.
11. No furniture, package, equipment, supplies or merchandise may be
received in the Building, or carried up or down in the elevators or stairways,
except during such hours as are designated for such purpose by the Landlord, and
only after the Tenant gives notice thereof to the Landlord. The Landlord shall
have the exclusive right to prescribe the method and manner in which any of the
same is brought into or taken out of the Building, and the right to exclude from
the Building any heavy furniture, safe or other article which may create a
hazard and to require it to be located at a designated place in the Premises.
The Tenant shall not place any weight anywhere beyond the safe carrying capacity
of the Building. The cost of repairing any damage to the Building or any other
part of the Property caused by taking any of the same in or out of the Premises,
or any damage caused while it is in the Premises or the rest of the Building,
shall be borne by the Tenant.
12. [crossed out]
13. The Tenant shall have access to the Premises at all times. The
Landlord shall in no event be responsible for admitting or excluding any person
from the Premises. In case of invasion, hostile attack, insurrection, mob
violence, riot, explosion, fire or any casualty, the Landlord shall have the
right to bar or limit access to the Building to protect the safety of occupants
of the Property, or any property within he Property.
14. The Landlord shall have the right to rescind, suspend or modify the
Rules and Regulations and to promulgate such other Rules or Regulations as, in
the Landlord's reasonable judgment, are from time to time needed for the safety,
care, maintenance, operation and cleanliness of the Building, or for the
preservation of good order therein. Upon the Tenant's having been given notice
of the taking of any such action, the Rules and Regulations as so rescinded,
suspended, modified or promulgated shall become effective (except that nothing
in the Rules and Regulations shall be deemed in any way to alter or impair any
provision of such lease).
15. The use of any room within the Building as sleeping quarters is
strictly prohibited at all times.
16. The Tenant shall keep the windows and doors of the Premises (including
those opening on corridors and all doors between rooms entitled to receive
heating or air conditioning service and rooms not entitled to receive such
service), closed while the heating or air conditioning system is operating, in
order to minimize the energy used by, and to conserve the effectiveness of such
systems. The Tenant shall
comply with all reasonable Rules and Regulations from time to time promulgated
by the Landlord with respect to such systems or their use that do not adversely
affect Tenant's use and [document cut off]
17. [crossed out]
18. Nothing in these Rules and Regulations shall give any Tenant any right
or claim against the Landlord or any other person if the Landlord does not
enforce any of them unless any other tenant or person [indecipherable] or not
the Landlord has the person if the Landlord does not enforce any of them AGAINST
any other persons or person whether or not the Landlord has the right to enforce
them AGAINST such tenant or person and no such non-enforcement will convey
[illegible]
METRO EXECUTIVE TERRACE
AGREEMENT OF LEASE
by and between
XXXXX & ASSOCIATES-METRO EAST EXECUTIVE TERRACE
LIMITED PARTNERSHIP
and
DIGITAL EQUIPMENT CORPORATION
(covering 29,600 square feet)
EXHIBIT D
SCHEDULE OF TENANT EQUIPMENT
[to be supplied by amendment]
EXHIBIT B TO SUBLEASE
REINSTATEMENT AND AMENDMENT OF AGREEMENT
REINSTATEMENT AND AMENDMENT OF
AGREEMENT OF LEASE
THIS REINSTATEMENT AND AMENDMENT OF AGREEMENT OF LEASE (hereinafter
referred to as "this Amendment") made this 22 day of July, 1992, by and between
XXXXX & ASSOCIATES-METRO EAST EXECUTIVE TERRACE LIMITED PARTNERSHIP, a
Pennsylvania limited Partnership having an address at Suite 150, 0000 Xxxxxxxx
Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "the Landlord")
and DIGITAL EQUIPMENT CORPORATION, a Massachusetts corporation having an address
at 0000 Xxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "the
Tenant"),
W I T N E S S E T H T H A T:
WHEREAS, the Landlord and the Tenant were the respective parties to that
certain Agreement of Lease, dated May 31, 1985 (such Agreement, together with
the Rider and all Exhibits attached thereto, being hereinafter referred to as
"the Lease") for the lease of approximately 29,600 square feet of floor area
located in a building at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx; and
WHEREAS, the Landlord and the Tenant effectively terminated the Lease as of
April 30, 1992 by Letter Agreement, dated February 27, 1992 (the "Termination
Letter"); and
WHEREAS, the Landlord and the Tenant desire to revoke the Termination
Letter, reinstate the Lease and amend the Lease as hereinafter set forth.
NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section l. REINSTATEMENT OF LEASE.
The Termination Letter is hereby revoked and declared void AB INITIO. The
Lease is hereby reinstated and adopted and agreed to in its entirety by the
Landlord and the Tenant as if fully set forth herein; subject, however, to the
hereinafter set forth amendments.
Section 2. AMENDMENTS TO LEASE.
2.1 The number "29,600" (identifying the number of square feet of floor
area and net rentable square feet of the Premises) is hereby deleted from the
"WITNESSETH" paragraph on page l of the Lease and each other provision of the
Lease in which it appears and the number "26,000" is hereby inserted in lieu
thereof in each instance.
2.2 Exhibit A to the Lease is hereby deleted and Exhibit A attached hereto
is hereby substituted in lieu thereof. The Premises are shown outlined in red on
Exhibit A.
2.3 Section l (consisting of subsections 1.1 and 1.2) is hereby deleted and
the following shall be inserted in lieu thereof:
Section l. TERM. This Lease shall be for a term (hereinafter referred to
as "the Term") commencing on September l, 1992 (hereinafter referred to as "the
Commencement Date"), and terminating at 11:59 p.m., local time, on August 31,
1997 (hereinafter referred to as "the Termination Date").
2.4 The provisions of clause (A) of subparagraph 3.1(a)(i) are hereby
deleted and the following provisions are hereby inserted in lieu thereof:
"(A) for the first Lease Year during the Term, is in the sum of Three
Hundred Forty-four Thousand Five Hundred and 00/100 Dollars ($344,500.00), plus
(if the Term commences on a day other than the first (1st) day of a
calendar month), one three hundred sixty-fifth (1/365) of the Net Component for
each day of such calendar month falling within the Term; and"
2.5 The phrase "Original Term" is hereby deleted from the first line of
clause (B) of subparagraph 3.1(a)(i) and each other provision of the Lease in
which it appears and the word "Term" is hereby inserted in lieu thereof in each
instance.
2.6 The phrase "Three Hundred Eighty-four Thousand Eight Hundred Dollars
($384,800)" is hereby deleted from the second and third lines of clause (B) of
subparagraph 3.1(a)(i) and the phrase Three Hundred Forty-four Thousand Five
Hundred Dollars ($344,500.00) is hereby inserted in lieu thereof.
2.7 Clauses (C) and (D) of subparagraph 3.1(a)(i) are hereby deleted.
2.8 The provisions of subparagraph 3.1(a)(ii) are hereby deleted and the
following provisions are hereby inserted in lieu thereof:
(ii) COSTS COMPONENT. An initial operating costs component (hereinafter
referred to as "the Costs Component") which, for each Lease Year during the
Term, is in the sum of One Hundred Sixty-two Thousand Five Hundred and 00/100
Dollars ($162,500.00), plus (if the Term commences on a day other than the first
(1st) day of a calendar month), one three hundred sixty-fifth (1/365) of the
Costs Component for each day of such calendar month falling within the Term (but
without impairing the Tenant's liability for any Additional Rent accruing under
the provisions of subsection 3.2).
2.9 The provisions of paragraph 3.1(c) are hereby deleted and the
following provisions are hereby inserted in lieu thereof:
"(c) LEASE YEAR. As used in the provisions of this Lease, the term "Lease
Year" means (i) the period commencing on the Commencement Date and terminating
on the first (1st) anniversary of the last day of the calendar month containing
the Commencement Date, and (ii) each successive period of twelve (12) calendar
months thereafter during the Term."
2.10 The phrase "*which ends after the first (1st) Lease Year during the
Original Term" on the second line of paragraph 3.2(d) is hereby deleted.
2.11 The phrase "**that portion of the Term which remains after the first
(1st) Lease Year during the Original Term" on the first line of paragraph 3.2(e)
is hereby deleted.
2.12 The phrase "such portion of" on the third line of paragraph 3.2(e) is
hereby deleted.
2.13 The phrase "(six (6), in the case of the first Lease Year)" on the
first line of paragraph 3.3(a) is hereby deleted.
2.14 Section 5 and Exhibit B to the Lease are hereby deleted. Exhibit B
attached hereto is hereby substituted for Exhibit B to the Lease and the
following is hereby inserted as new Section 5:
5.1 Attached hereto as, or identified on, Exhibit B are full and
complete plans and specifications (hereinafter referred to as "the Approved
Plans and Specifications") for the Tenant finish work and other
improvements (hereinafter referred to as "the Improvements") which are to
be made to the Premises. The Landlord and the Tenant each hereby consent to
the Approved Plans and Specifications.
5.2 Notwithstanding anything to the contrary contained herein, the
Landlord's consent to the Approved Plans and Specifications shall not (i)
constitute an opinion or agreement by the Landlord that the work shown
therein is structurally sufficient or that said plans or the work are in
compliance with all laws (it being agreed that such compliance is solely
the Tenant's responsibility); (ii) impose any present or
2
future liability on the Landlord; (iii) constitute a waiver of any of the
Landlord's rights hereunder to require the Improvements to be constructed
in accordance with applicable law; or (iv) impose additional obligations on
the Landlord (it being agreed by the parties hereto that total
responsibility for the design and construction of the Improvements is the
Tenant's).
5.3 The Approved Plans and Specifications shall be final and shall
not be changed by the Tenant without the prior consent of the Landlord,
which consent shall not be reasonably withheld.
5.4 CONSTRUCTION.
5.4.1. The Tenant covenants and agrees to commence construction
of the Improvements within fourteen (14) days after the date hereof and to
thereafter diligently proceed to complete all of the Improvements in
substantial accordance with the Approved Plans and Specifications.
5.4.2. The Tenant hereby represents that it has or will enter
into a contract (hereinafter referred to as "the Construction Contract")
with a general contractor approved by the Landlord (which approval shall
not be unreasonably withheld) (hereinafter referred to as "the Contractor")
calling for the Contractor's construction of the Improvements in accordance
with the Approved Plans and Specifications. The Landlord hereby agrees to
contribute towards the price of the construction of the Improvements the
sum of $390,000.00 (hereinafter referred to as "the Landlord
Contribution"). The Landlord shall pay the Landlord Contribution to the
Tenant in monthly installments on the first (1st) day of each calendar
month after commencement of construction until the Improvements have been
completed or the Landlord has paid the entire said sum to the Tenant,
whichever shall first occur. Each such installment to be paid by the
Landlord shall be in the amount to which the Contractor is entitled as of
such date to be paid by the Tenant under the Construction Contract, but
only for work in place (net of a ten percent (10%) "holdback" to be
retained by the Landlord until the Contractor has substantially completed
the Improvements, at which point such "holdback" shall immediately be paid
by the Landlord to the Tenant, and by the Tenant to the Contractor). The
Landlord's obligation to make each such payment shall be conditioned upon
(a) the Tenant's having furnished to the Landlord a copy of the requisition
for payment provided by the Contractor to the Tenant and covering the labor
and materials constituting the work in place for which such payment to the
Contractor is to be made, and (b) the Landlord's architect for the
Improvements having approved the work covered by such requisition as being
work in place and substantially in accordance with the Approved Plans and
Specifications, subject to the correction of minor, punch list items to be
agreed upon by the parties hereto at the time such determination by the
Landlord's architect is made. If the Landlord's architect refuses to
approve such work it shall state to the Tenant within ten (10) days after
its receipt thereof in writing and with particularity each portion of the
work covered by such requisition which it believes is not work in place or
does not substantially conform to the Approved Plans and Specifications and
the manner in which it fails to conform, in which event the requisition
shall be deemed to have been approved as to the remainder of the work
covered thereby, and the Landlord shall pay to the Tenant the amount which
it would otherwise have been required to pay to the Tenant were such work
approved by the Landlord's architect in full, less an amount reasonably
adequate to pay the cost of causing the said portions of the work to
conform to the Approved Plans and Specifications. The construction shall be
performed in a good and workmanlike manner, and in compliance with all
applicable laws, orders and regulations of federal, state, county and
municipal authorities, with any direction by any public officer pursuant to
law and with all regulations of any Board of Fire Underwriters having
jurisdiction. The Tenant, at its sole cost and expense, shall obtain or
cause to be obtained all building permits, licenses, temporary and
permanent certificates of occupancy and other governmental approvals which
may be required to permit the construction of any of the work contained in
the Approved Plans and Specifications and the occupancy of the Premises by
the Tenant.
5.5 At any time during the course of construction as herein set
forth, the Landlord may enter upon the Premises for purposes of inspecting
the work or otherwise managing or operating the Building. The Landlord
shall use reasonable efforts to minimize any interference with the Tenant's
construction work in the Premises in exercising the Landlord's rights under
this Section.
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5.6 "Substantial completion" (or any variation of this phrase such as
"substantially complete" or "substantially completed", as used anywhere in
this Lease with respect to the Improvements) shall be deemed to have
occurred when the Premises are first available for uninterrupted use and
occupancy by the Tenant and the following have occurred:
(i) Construction of the Improvements is completed except for
minor punch list items;
(ii) Plumbing, heating, air-conditioning, electrical facilities,
and sprinkler system (installed and tested per specifications) shall have
been completed to such extent that the appropriate services to be rendered
through such facilities can be and are being supplied; and
(iii) A permanent certificate of occupancy for the Premises (as
constructed in accordance with the Approved Plans and Specifications), or
such other written governmental authorization as will allow the Tenant
legally to occupy the Premises, shall have been issued and delivered to the
Tenant.
If the parties cannot agree on whether the Tenant's construction of
the Improvements is substantially complete, either party may give written
notice to the other that such party desires that the parties agree on an
independent third party (hereinafter referred to as "the Independent
Arbiter"), who upon his selection shall visit the Premises, evaluate the
work and render a written decision on: (i) the state of completeness of the
Improvements and (ii) the date on which substantial completion occurred. In
such event the parties hereto shall agree in writing on the identity of an
Independent Arbiter within five (5) business days after such notice is
given. The party who is found to be in error by the Independent Arbiter
shall pay the Independent Arbiter's expenses.
5.7 Upon substantial completion of the Improvements, the Tenant and
the Landlord shall jointly inspect the Premises for the purpose of
discovering any incomplete work and shall itemize such incomplete work in a
written "punch list". The Tenant shall complete all punch list items and
any other uncompleted portions of its work as expeditiously as possible
after substantial completion of the construction of the Improvements, but
in any event within thirty (30) days thereafter unless such item cannot be
completed within said thirty (30) day period, in which event the Tenant
shall commence the work for such item with all due diligence within said
thirty (30) days and shall complete the same within the sixty (60) day
period thereafter.
5.8 The Tenant and/or the Contractor shall procure and maintain in
effect during the term of construction, the following insurance coverages
with an insurance company or companies authorized to do business in
Maryland:
l. WORKMEN'S COMPENSATION - Statutory Limits for Maryland,
together with "ALL STATES" and "VOLUNTARY COMPENSATION" and "FOREIGN
COMPENSATION" coverage endorsements.
2. EMPLOYER'S LIABILITY INSURANCE with a limit of $100,000.
3. COMPREHENSIVE LIABILITY - $3,000,000 Combined Single Limit,
including Personal Injury, Contractual and Products/ Completed Operations
Liability.
Coverage must include the following:
A. Premises - Operations
B. Elevators and Hoists
C. Independent Contractor
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D. Contractual Liability assumed under this contract.
E. Completed Operations - Products
F. Explosion, Underground and Collapse (XCU) Coverage.
4. Automobile Liability - Including Owned, Hired and Non-owned
vehicles:
$1,000,000 each person Bodily Injury
$3,000,000 each occurrence Bodily Injury
$250,000 each occurrence Property Injury
Coverage must include the following:
A. Owned vehicles
B. Leased vehicles
C. Hired vehicles
D. Non-owned vehicles
The Tenant shall furnish the Landlord with certificates of insurance
evidencing such coverage prior to commencement of any construction work
done under this Lease. The following statement shall appear in each
certificate of insurance provided to the Landlord by the Tenant hereunder:
It is agreed that in the event of any material change in,
cancellation, or non-renewal of this policy, thirty (30) days prior notice
will be given to:
XXXXX & ASSOCIATES-METRO EAST
EXECUTIVE TERRACE LIMITED PARTNERSHIP
Suite 150
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
5.9 The Tenant shall give prompt notice to the Landlord of all
losses, damages, or injuries to any person or to property of the Tenant,
the Landlord, or third parties which may in any way be related to the Lease
or for which a claim may be made against the Landlord. The Tenant shall
promptly report to the Landlord all such claims of which the Tenant has
notice, whether related to matters insured or uninsured. No settlement or
payment for any claim, loss, injury, damage, or other matter as to which
the Landlord may be charged with an obligation to make any payment or
reimbursement shall be made by the Tenant without the written consent of
the Landlord, which shall not unreasonably be withheld or delayed.
The carrying of any of the insurance required hereunder shall not be
interpreted as relieving the Tenant of any responsibility to the Landlord.
The Tenant shall assist and cooperate with any insurance company in the
adjustment or litigation of all claims arising under the terms of this
Section.
The Tenant shall procure and maintain the Tenant installation floater
insurance to protect its interests and that of its subcontractors during
the course of the construction work.
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The Landlord does not and will not waive any rights which it may have
against the Tenant and/or its representatives for any loss, expense and
damage to persons and property (tangible and intangible) from any cause
whatsoever.
5.10 Not later than sixty (60) days after substantial completion of
the Improvements, the Landlord shall measure the Premises by measuring from
the outside of any exterior walls of the Premises to the center line of any
partitions constructed which separate the Premises from the remaining or
adjacent portions of the Building and shall give the Tenant notice of the
floor area so determined. The floor area stated in such notice shall be
deemed the number of square feet of floor area and net rentable square feet
of the Premises for all purposes of this Lease unless, within thirty (30)
days after receipt of such notice, the Tenant shall give the Landlord
notice that the Tenant believes the Landlord's measurement to be
inaccurate. In such event, the Independent Arbiter shall measure the
Premises and certify the floor area thereof to the parties. The Tenant's
floor area as so certified shall be binding on the parties and shall be
deemed the number of square feet of floor area and net rentable square feet
of the Premises for all purposes of this Lease. In the event the floor area
of the Premises shall be greater or less than 26,000 square feet, the Base
Rent for the first Lease Year shall be adjusted based on a rate of $13.25
per square foot, the Costs Component shall be adjusted based on a rate of
$6.25 per square foot and the Landlord Contribution shall be adjusted based
on a rate of $15.00 per square foot. The Landlord and the Tenant shall
execute such amendment to this Lease as may be necessary to reflect any
change in the floor area of the Premises, the Base Rent, the Costs
Component and the Landlord Contribution. Until such time as a new floor
area of the Premises is established in accordance with this Section 5.10,
the floor area of the Premises, the Base Rent, the Costs Component and the
Landlord Contribution shall be as stated herein, subject to appropriate
adjustment between the Landlord and the Tenant when such floor area is so
established.
2.15 Section 18 is hereby deleted and the following is hereby inserted in
lieu thereof:
"Section 18. NOTICES
(a) All notices, demands, requests and other instruments which may or
are required to be given by either party to the other under this Lease
shall be given in writing. All notices, demands, requests and other
instruments from the Landlord to the Tenant shall be deemed to have been
properly given if sent by United States Registered or Certified Mail,
postage prepaid, return receipt requested, addressed to the Tenant at
Property Development Center-East, COP-5/9, 0000 Xxx Xxxx, Xxxxxxxxx,
Xxxxxxxx 00000, with a copy to Real Estate Law Manager, 000 Xxxxxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000-0000, or at such other address as the
Tenant from time to time shall have designated by written notice to the
Landlord.
(b) All notices, demands, requests and other instruments from the
Tenant to the Landlord shall be deemed properly given if sent by United
States Registered or Certified Mail, postage prepaid, return receipt
requested, addressed to the Landlord at Xxxxx & Associates-Metro East
Executive Terrace Limited Partnership, Suite 150, 0000 Xxxxxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, or at such other address as the Landlord from
time to time shall have designated by written notice to the Tenant."
Section 3. EFFECT OF AMENDMENT. Except as specifically amended hereby, the
Lease shall remain in full force and effect according to its terms. To the
extent of any conflict between the terms of this Amendment and the terms of the
remainder of the Lease, the terms of this Amendment shall control and prevail.
Capitalized terms used but not defined herein shall have those respective
meanings attributed to them in the Lease. This Amendment shall hereafter be
deemed part of the Lease for all purposes.
Section 4. REPRESENTATIONS. The Landlord and the Tenant each hereby
represents and warrants to the other that, as of the date each hereof, it (a) is
the sole legal and beneficial owner of all of the right, title and interest
reserved by or granted to it by the Lease, and (b) has the full and sufficient
right at law and in equity to execute and deliver this Amendment as the owner of
such right, title and interest, without the necessity of obtaining any other
person's consent thereto or joinder therein.
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IN WITNESS WHEREOF, each party hereto has executed and ensealed this
Amendment or caused it to be executed and ensealed on its behalf by its duly
authorized representatives, the day and year first above written.
WITNESS or ATTEST: XXXXX & ASSOCIATES-METRO EAST EXECUTIVE
TERRACE LIMITED PARTNERSHIP
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxx, III (SEAL)
------------------------- ---------------------------
Xxxxxxxx X. Xxxx, III,
General Partner
- Landlord -
DIGITAL EQUIPMENT CORPORATION
By: /s/ Xxxx X. Xxxxxx (SEAL)
------------------------- ---------------------------
Xxxx X. Xxxxxx, Manager
Property Development Center
Eastern Region
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METRO EXECUTIVE TERRACE
AGREEMENT OF LEASE
by and between
XXXXX & ASSOCIATES-METRO EAST EXECUTIVE TERRACE
LIMITED PARTNERSHIP
and
DIGITAL EQUIPMENT CORPORATION
(covering 26,000 square feet)
EXHIBIT A
PLAT SHOWING THE PREMISES
METRO EXECUTIVE TERRACE
AGREEMENT OF LEASE
by and between
XXXXX & ASSOCIATES-METRO EAST EXECUTIVE TERRACE
LIMITED PARTNERSHIP
and
DIGITAL EQUIPMENT CORPORATION
(covering 26,000 square feet)
EXHIBIT B
SCHEDULE OF APPROVED PLANS AND SPECIFICATIONS
The Tenant, at the Tenant's expense, shall prepare and submit proposed plans and
specifications to the Landlord for approval, which approval shall not be
unreasonably withheld. Once the proposed plans and specifications are in a form
satisfactory to each party hereto, the parties hereto shall agree in writing on
a schedule identifying such plans and specifications as so approved and
identifying such schedule as Exhibit B to this Lease. Such plans and
specifications shall be deemed the Approved Plans and Specifications for all
purposes of this Lease.
EXHIBIT D TO SUBLEASE
CONSENT OF LANDLORD
[Landlord's Letterhead]
[Date]
[Applicable Digital address Attention: ]
Re: [Description of Prime Lease] (the "Prime Lease")
Dear Sir:
You have requested our consent to a sublease of [a portion of] the
premises demised by the Prime Lease upon the terms described in the attached
Exhibit A [attach letter of intent or other written description of the proposed
sublease].
We hereby grant such consent upon the terms so described, provided that:
[State any conditions required by the Prime Lease, such as execution of the
sublease within a designated period or payment of a percentage of
subletting profits]
We hereby agree that in the event of any default by the subtenant under the
terms of the Prime Lease, notice of such default, as required under [Section __]
of the Prime Lease, shall be delivered simultaneously both to you and to the
subtenant, and we will accept cure of such default by subtenant as cure by you.
We will not exercise any remedies provided under the Prime Lease until all
notices have been so given and all grace periods provided under the Prime Lease
have expired.
In all other respects, the terms of the Prime Lease are hereby ratified and
confirmed.
Sincerely,
EXHIBIT E TO SUBLEASE
CONSENT OF LANDLORD'S MORTGAGEES
[Attach Consents of Landlord's mortgagees if required by Prime Lease or
Digital's subordination, recognition and non-disturbance agreements.]
EXHIBIT F
OFFICE SYSTEMS FURNITURE
During the term of sublease, subtenant shall have the right to utilize up
to a quantity of 50 (fifty) of sublandlords' office systems furniture presently
located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000.
Subtenant shall be responsible for delivery and installation of said office
systems furniture at the premises.
Said office systems furniture shall be made available to Subtenant at no
additional cost during the term of this sublease.
Upon expiration or early termination of this agreement, said office
furniture systems shall be returned to sublandlord in the same condition in
which delivery was taken, normal wear and tear excepted.
