1
EXHIBIT 10.14
LEASE AGREEMENT
between
AETNA LIFE INSURANCE COMPANY
(Landlord)
and
CIENA CORPORATION
(Tenant)
Airport Square
▇▇▇▇ Arundel County, MD
INDEX
ARTICLE I TERM
Section 1.01 Length
Section 1.02 Confirmation
Section 1.03 Options to Renew
Section 1.04 Surrender
Section 1.05 Holding Over
ARTICLE II RENT
Section 2.01 Base Rent
Section 2.02 Real Estate Taxes
Section 2.03 Operating Expenses
Section 2.04 When Due and Payable
Section 2.05 Proration
Section 2.06 Late Penalties
Section 2.07 Security Deposit
ARTICLE III USE OF PREMISES
Section 3.01 Use
Section 3.02 Laws
Section 3.03 Common Areas
ARTICLE IV INSURANCE/INDEMNIFICATION
Section 4.01 Tenant's Insurance
Section 4.02 Landlord's Insurance
Section 4.03 Waiver of Subrogation
Section 4.04 Indemnification
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ARTICLE V IMPROVEMENTS TO PREMISES
Section 5.01 Initial Improvements
Section 5.02 Acceptance
Section 5.03 Tenant's Alterations
Section 5.04 Mechanics' Liens
Section 5.05 Fixtures
ARTICLE VI MAINTENANCE AND SERVICES
Section 6.01 Ordinary Services
Section 6.02 Services and Utility Payments
Section 6.03 Excessive Use
Section 6.04 Maintenance by Tenant
Section 6.05 Maintenance by Landlord
Section 6.06 Interruption
ARTICLE VII RIGHT OF ENTRY
Section 7.01 Right of Entry
ARTICLE VIII CASUALTIES
Section 8.01 General
Section 8.02 Substantial Destruction
Section 8.03 Tenant's Negligence
ARTICLE IX CONDEMNATION
Section 9.01 Right to Award
Section 9.02 Effect of Condemnation
Section 9.03 Interruption
ARTICLE X ASSIGNMENT/SUBLETTING
Section 10.01 Actions Covered
Section 10.02 Restrictions
Section 10.03 Liability to Landlord
Section 10.04 Excess Rents
Section 10.05 Landlord's Transfers
ARTICLE XI RULES & REGULATIONS
Section 11.01 Landlord's Rules
ARTICLE XII MORTGAGE LENDERS
Section 12.01 Subordination
Section 12.02 Written Agreement
Section 12.03 Estoppel Certificate
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ARTICLE XIII ENVIRONMENTAL COVENANTS
Section 13.01 Definition
Section 13.02 Prohibitions
Section 13.03 Inspection
Section 13.04 Indemnification
Section 13.05 Representation
ARTICLE XIV DEFAULT AND REMEDIES
Section 14.01 Defaults
Section 14.02 Grace Period
Section 14.03 Remedies
Section 14.04 Damages
Section 14.05 Landlord's Lien
Section 14.06 Waiver of Jury Trial
ARTICLE XV QUIET ENJOYMENT
Section 15.01 Covenant
ARTICLE XVI NOTICES
Section 16.01 Notices
ARTICLE XVII GENERAL
Section 17.01 Entire Agreement
Section 17.02 Amendment
Section 17.03 Applicable Law
Section 17.04 Waiver
Section 17.05 Time of Essence
Section 17.06 Headings
Section 17.07 Severability
Section 17.08 Successors and Assigns
Section 17.09 Commissions
Section 17.10 Recordation
Section 17.11 Perpetuities
Section 17.12 Liability Limitation
Section 17.13 Authority
Section 17.14 Exhibits
Exhibit A Floor Plan of Premises
Exhibit B Site Plan of Property
Exhibit C Rules and Regulations
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made this 1 day of November,
1996, by and between the AETNA LIFE INSURANCE COMPANY (the "Landlord") and
CIENA CORPORATION (the "Tenant"), a Delaware corporation.
WITNESSETH, that for good and valuable consideration, the Landlord
hereby leases to the Tenant, and the Tenant hereby leases from the Landlord, an
agreed-upon amount of 96,566 rentable square feet of space shown on Exhibit A
hereto (the "Premises"), comprising all of the rentable space in the office
building (the "Building") which, together with 408 parking spaces adjacent to
such Building, landscaping and other improvements, are shown on Exhibit B
hereto and located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ in ▇▇▇▇ Arundel County,
Maryland (collectively the "Property"), all upon the following terms and
conditions:
ARTICLE I - TERM
Section 1.01 Length. This Lease shall be for a term (the "Term")
which begins on that date (the "Commencement Date") which is the earlier of(i)
March 1, 1997 (the "Target Date"), or (ii) 150 days after the first date on
which the Tenant commences construction of the Space Improvements to the
Premises as described in Section 5.01 below, subject to Section 5.01(A)(3)
below. The Term shall expire on that date which is 10 years after such
Commencement Date (the "Expiration Date"). In the event that the Tenant enters
into occupancy of the Premises prior to the Commencement Date for any purpose,
then all terms of this Lease shall apply to such occupancy, except that Tenant
shall not be obligated to pay Base Rent or Real Estate Taxes (defined herein)
for such period, and the Tenant's rental obligations shall be limited to the
payment of any electricity or other utility charges incurred with respect to
the Building and allocable to such period prior to the Commencement Date. In
addition, to the extent that Tenant occupies the Premises prior to the
Commencement Date for the purpose of conducting business therein, Tenant shall
be obligated to pay the costs of snow removal, building repairs and
landscaping, on-site maintenance and operations personnel, and electricity and
other utilities used in connection with the common areas of the Building. All
such utility and other costs for the period prior to the Commencement Date
shall be paid by Tenant as Additional Rent (defined herein).
Section 1.02 Confirmation. Landlord shall, within 30 days after
the commencement of the Term, confirm to Tenant in writing the actual dates of
the Commencement Date and the Expiration Date. In the event that Tenant
disagrees with such dates as stated in the confirmation notice from Landlord,
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Tenant shall, within 15 days after Landlord's notice, notify Landlord in
writing as to Tenant's objections. If Tenant fails to so notify Landlord of
any objection within this 15 day period, the dates set forth in the Landlord's
notice shall govern for purposes of this Lease. If Tenant does notify Landlord
of an objection within this 15 day period, the parties shall attempt to resolve
the disagreement within 21 days after the Tenant's notice of objection. In the
event that the parties are unable to agree within this 21 day period, then
either party shall have the right to have the applicable dates determined by
arbitration by giving written notice to the other before expiration of the 21
day period (an "Arbitration Notice"). If neither party delivers an Arbitration
Notice before expiration of the 21 day period, then the dates set forth in the
Landlord's initial notice shall govern for purposes of this Lease. If one of
the parties does deliver an Arbitration Notice within the 21 day period, then
Landlord and Tenant shall designate an independent party with experience in
adjudicating at least one arbitration case (the "Arbiter"). The Arbiter shall
conduct such hearings and investigations as he or she may deem appropriate but,
in all events, reach a decision binding on the parties within 30 days after
being designated. Furthermore, in the case of any such dispute regarding the
Commencement Date and Expiration Date, Tenant shall not withhold payments of
rent or other charges hereunder, and any Base Rent paid but ultimately
attributable to the period before the actual Commencement Date as determined by
the Arbiter shall be applied toward the next installment of Base Rent due
hereunder. Landlord and Tenant shall divide evenly the fees of the Arbiter
incurred during the foregoing procedures.
Section 1.03 Options to Renew. Tenant shall have two successive
options to renew the Term of the Lease commencing upon its expiration for an
additional period of 5 years each (each a "Renewal Term," which shall be deemed
to be part of the Term), subject to the following terms:
(A) Tenant's options to renew shall apply to the
entire Premises and not any lesser portion thereof.
(B) In order to exercise each such option to
renew the Lease, Tenant must give Landlord written notice of its election to
renew not earlier than 365 days and not later than 330 days before the
expiration of the then-current Term. If the applicable option is exercised in
accordance with the terms of this section, the Renewal Term shall be under all
of the same terms and conditions as are contained in the Lease, except that the
Base Rent applicable during the Renewal Term shall be at the then-prevailing
market rate of rent and all other charges for comparable office space in the
area of the Baltimore-Washington International Airport, taking into account any
and all factors (e.g., condition of space and improvements, parking and other
facilities, location of the Building, length of term, Tenant's needs as a large
user of space, etc.). If Tenant exercises the applicable option by the
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time required above, then Landlord shall notify Tenant in writing of the market
rate of Base Rent to apply during the Renewal Term, as determined by real
estate brokers or other professionals selected by Landlord, within 15 days
after Tenant's notice of exercise. Landlord shall accompany such notice with
backup information as to the analysis on which such determination of the market
rate is based.
(C) With respect to either of the foregoing
options to renew, if Tenant does not accept Landlord's determination of the
market rate of Base Rent contained in the Landlord's notice, then Tenant shall
notify Landlord of this fact in writing within 15 days after the Landlord's
notice. If Tenant so notifies Landlord within this 15 day period, then the
parties shall attempt to resolve their differences regarding the Landlord's
figure and agree upon the market rate of Base Rent within 30 days after the
Tenant's notice of non-acceptance. In the event that the parties cannot agree
upon the market rate within this 30 day period, then the Tenant shall have the
right, upon written notice to Landlord given prior to the expiration of such 30
day period, to either (1) rescind the exercise of the applicable option, in
which case the option shall be null and void, or (2) elect to have the market
rate determined by arbitration as described in subsection (D) below. If the
Tenant fails to notify the Landlord that it does not accept the Landlord's
determination of the market rate within the period of 15 days after the
Landlord's initial notice as described above, or if the Tenant does so notify
the Landlord but Tenant does not either rescind the option or elect to have the
market rate determined by arbitration within the 30 day period described above
(and the parties are unable to agree upon the market rate in this period), then
the figure for the market rate set forth in the Landlord's initial notice to
the Tenant shall govern for the Renewal Term.
(D) If with respect to either of the options
described above, Tenant elects to have the market rate of Base Rent to apply
during the Renewal Period determined by arbitration, the market rate of Base
Rent shall be established by a panel of 3 licensed real estate brokers, each of
whom shall have a minimum of 7 years of experience in the commercial real
estate brokerage business in the region in which the Building is located. One
such broker shall be selected by Landlord within 7 days after Tenant's election
of arbitration, one such broker shall be selected by Tenant within the same 7
day period, and the third such broker shall be selected by the first two within
7 days after the first two are so selected. Each broker, within 21 days after
the third broker is selected, shall submit his or her determination of the
market rate of Base Rent, which shall be based on the criteria described in
subsection (B) of this section above, and the average of the two closest
determinations shall be binding on the parties for purposes of calculating Base
Rent during the Renewal Period. Landlord and Tenant shall each pay
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any fee of the broker selected by it, and they shall share equally the payment
of any fee of the third broker.
(E) If Tenant fails to give notice exercising
either option to renew by the date required herein, or if at the time Tenant
exercises either such option or at the beginning of the applicable Renewal Term
there is an uncured Event of Default under this Lease, or if this Lease is
assigned by Tenant or the Premises sublet in whole or in part to any third
party which is not a parent, subsidiary or other affiliate of Tenant, then
Tenant's right and option to renew shall be automatically terminated and of no
further force or effect.
Section 1.04 Surrender. The Tenant shall at the expiration of the
Term or any earlier termination of this Lease (a) promptly surrender to the
Landlord possession of the Premises, including any fixtures or other
improvements which under the provisions of this Lease are property of the
Landlord, all in good order and repair (ordinary wear and tear and damage by
casualty or condemnation excepted) and broom clean, (b) remove therefrom the
Tenant's signs, goods and effects and any machinery, trade fixtures and
equipment used in conducting the Tenant's trade or business and not owned by
the Landlord, and (c) repair any damage to the Premises or the Building caused
by such removal.
Section 1.05 Holding Over. Upon the Expiration Date, this Lease
shall become a month-to-month tenancy, terminable upon 30 days' prior written
notice by either party, for up to 3 months following the Expiration Date. Any
occupancy of the Premises after the Expiration Date shall be subject to all of
the same terms and conditions as are contained in this Lease, except that the
rental payable for up to the first three months of any such occupancy shall be
equal to the amount of all Rent which was last in effect during the Term and
thereafter equal to one and one-half times the amount of all Rent which was
last in effect during the Term. Nothing in the foregoing shall be deemed in
any way to limit or impair the Landlord's right to immediately evict the Tenant
or exercise its other rights and remedies under the provisions of this Lease or
applicable law on account of any occupancy of the Premises past the period
provided in this Lease, including the collection of consequential and other
damages, on account of the Tenant's occupancy of the Premises without having
obtained Landlord's prior consent.
ARTICLE II - RENT
Section 2.01 Base Rent. Tenant shall pay a minimum annual rental
in each one-year period during the Term hereof which shall be referred to
hereinafter as "Base Rent." Base Rent shall be calculated and increased for
each such year as follows:
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(1) Base Rent for the 1st one-year period in the
Lease Term shall be the sum of $1,221,559.90, representing $12.65 per rentable
square foot of the Premises.
(2) Base Rent for the 2nd one-year period in the
Lease Term shall be the sum of $1,245,701.40, representing $12.90 per rentable
square foot of the Premises.
(3) Base Rent for the 3rd one-year period in the
Lease Term shall be the sum of $1,269,842.90, representing $13.15 per rentable
square foot of the Premises.
(4) Base Rent for the 4th one-year period in the
Lease Term shall be the sum of $1,293,984.40, representing $13.40 per rentable
square foot of the Premises.
(5) Base Rent for the 5th one-year period in the
Lease Term shall be the sum of $1,318,125.90, representing $13.65 per rentable
square foot of the Premises.
(6) Base Rent for the 6th one-year period in the
Lease Term shall be the sum of$1,414,691.90, representing $14.65 per rentable
square foot of the Premises.
(7) Base Rent for the 7th one-year period in the
Lease Term shall be the sum of $1,438,833.40, representing $14.90 per rentable
square foot of the Premises.
(8) Base Rent for the 8th one-year period in the
Lease Term shall be the sum of$1,462,974.90, representing $15.15 per rentable
square foot of the Premises.
(9) Base Rent for the 9th one-year period in the
Lease Term shall be the sum of~1,487,1 16.40, representing $15.40 per rentable
square foot of the Premises.
(10) Base Rent for the 10th one-year period in the
Lease Term shall be the sum of$1,51 1,257.90, representing $15.65 per rentable
square foot of the Premises.
Section 2.02 Real Estate Taxes. Commencing on July l, 1998,
Tenant shall pay to Landlord in each year of the Term the amount, if any, by
which the Real Estate Taxes (defined below) applicable to the Property in each
such year exceeds the Base Real Estate Taxes (defined below). The term "Real
Estate Taxes" shall be construed to mean any and all real property taxes,
assessments, sewer rates, ad valorem charges, rents and charges, front foot
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benefit charges, all other governmental impositions in the nature of any of the
foregoing (but only to the extent attributable to the unexpired Term of this
Lease), and all costs and expenses (including attorneys' fees and costs of
court or other proceedings) incurred in contesting property tax assessments or
any other such governmental impositions. The "Base Real Estate Taxes" shall be
the Real Estate Taxes imposed in connection with the Building and the Property
and applicable in the first year following execution of this Lease during which
the Building is assessed taking into account full (or near-full) occupancy,
which year is expected to be the 7/1/97-6/30/98 tax/fiscal year. Tenant shall
not be entitled to any credit or rebate in the event Real Estate Taxes during
any one year in the Term are lower than the Base Real Estate Taxes. Upon
request of Tenant, Landlord shall appeal any new assessment of the Building for
real estate tax purposes or, in the event Landlord declines to file such an
appeal, permit Tenant to conduct such an appeal through its own counsel or
other representatives at Tenant's expense. Tenant shall be entitled to
participate in any appeal which is conducted by Landlord. Any refunds of Real
Estate Taxes garnered in an appeal, to the extent representing taxes previously
paid by Tenant as Additional Rent, shall be paid to Tenant.
Section 2.03 Operating Expenses. Commencing on January l, 1998,
Tenant shall pay to Landlord in each year of the Term the amount by which the
Operating Expenses (defined below) for each such year exceed the Base Operating
Expenses (defined below). "Operating Expenses" shall mean all expenses, costs
and disbursements of every kind and nature incurred in connection with the
ownership, management, maintenance, repair and operation of the Building and
Property, including but not limited to the following: (l) cost of wages and
salaries of all employees engaged in the operation and maintenance of the
Building and surrounding grounds and common areas, including but not limited to
payroll taxes, insurance and benefits, provided that such amounts shall be
prorated to the extent any such employees work on projects other than the
Property; (2) cost of all supplies and materials used in the operation,
maintenance and repair of the Building and all other portions of the Property;
(3) cost of water and sewer service to the Building; (4) costs incurred under
all maintenance and service agreements for the Building, including but not
limited to access control, energy management services, window cleaning,
elevator maintenance and landscaping; (5) cost of insurance relating to all of
such property, including but not limited to the cost of casualty and liability
insurance; (6) cost of repairs and general maintenance to the Building; (7) all
property management fees and expenses; (8) out-of-pocket cost of audit and
accounting services, if any, incurred in the calculation and billing of
Additional Rent; (9) the costs of any improvements required or made necessary
by law or changes in law first enacted after the date of this Lease, provided
that capital expenditures for any such costs are amortized in accordance with
generally
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accepted accounting principles ("GAAP") at such rates as may have been paid by
Landlord on funds borrowed for the purpose of constructing such capital
improvements or, if no such funds were borrowed, at such reasonable rates as
are not in conflict with GAAP; and (10) cost of any capital improvements made
to the Building that, in Landlord's reasonable judgment, will reduce other
operating expenses or increase energy efficiency, provided such costs are
amortized in accordance with GAAP at such rates as may have been paid by
Landlord on funds borrowed for the purpose of constructing such capital
improvements or, if no such funds were borrowed, at such reasonable rates as
are not in conflict with GAAP, and further provided that the amount charged in
any one year shall not exceed the Landlord's estimate of the savings to be
achieved. For purposes of this provision, Operating Expenses shall not include
(a) the cost of capital improvements (except as expressly provided above), (b)
the costs of tenant improvements within tenant spaces, (c) ground rent or debt
service, (d) depreciation, (e) the cost of electricity and any other utility
which Tenant is obligated to pay pursuant to Section 6.02 below, (f) the cost
of janitorial and any other service which Tenant is obligated to provide and
pay in its entirety, (g) income, excess profits, franchise or other taxes
imposed on or measured by the income of Landlord from the Building, (h) any
cost for which Landlord is reimbursed by proceeds of insurance, condemnation
award, service contract refund, credit or warranty, (i) any testing,
remediation or other cost incurred in connection with the storage, use,
placement or other handling of Hazardous Materials (defined herein) at the
Property by Landlord at any time or by any other party if prior to the date
hereof, (j)any fines or penalties imposed upon Landlord due to any violation of
laws which is the fault of Landlord, (k) costs and expenses associated with the
operation of the business of the legal entity or entities which constitute the
Landlord (as opposed to operation of the Building), or (l) if property
management services are provided by an affiliate of the Landlord, then any
compensation to such party which is in excess of the fees which would be
reached through arms- length bargaining. The "Base Operating Expenses" shall
be the Operating Expenses applicable during the calendar year 1997. Tenant
shall not be entitled to any credit or rebate in the event Operating Expenses
in any one year during the Term are lower than the Base Operating Expenses.
Section 2.04 When Due and Payable.
(A) All rental obligations set forth in the
foregoing provisions and elsewhere in this Lease, except for Base Rent, shall
be referred to hereinafter as "Additional Rent." All Base Rent and Additional
Rent are sometimes hereinafter together referred to as "Rent."
(B) The Base Rent for each year (or part thereof)
during the Term shall be due and payable in 12 consecutive, equal monthly
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installments, in advance, on the first day of each calendar month during the
Term, provided that the installment of Rent for the first full calendar month
of the Term shall be due upon execution of this Lease.
(C) Tenant shall pay all Additional Rent within
30 days after being billed therefor by Landlord. However, Landlord may, at its
discretion, (a) make a reasonable estimate of the Additional Rent which may
become due for any year in the Term, (b) require the Tenant to pay to the
Landlord such Additional Rent in equal installments at the time and in the
manner that the Tenant is required hereunder to pay monthly installments of
Base Rent, and (c) at the Landlord's reasonable discretion, increase or
decrease during such year the amount initially estimated for such year, all by
giving the Tenant written notice thereof. In such event, the Landlord shall
cause the actual amount of such Additional Rent to be calculated within 120
days after the end of each such year, and the Tenant or the Landlord shall
within 30 days pay to the other the amount of any deficiency or overpayment,
whichever the case may be.
(D) Landlord shall have the right to apply any
payment of Rent by Tenant to any amounts outstanding in any order in Landlord's
sole discretion. Acceptance by Landlord of any partial payment of Rent shall
not be deemed a waiver or satisfaction of the Tenant's obligation to pay all
remaining amounts of Rent hereunder, which shall remain due in their entirety
according to the terms of this Lease.
Section 2.05 Proration. All items of Rent shall be prorated for
any month during the Term which is not a full calendar month or in which two
different rental rates are applicable. If only part of any calendar year falls
within the Term, the amount computed as Additional Rent for such calendar year
under the foregoing provisions of this section shall be appropriately prorated,
but the expiration of the Term before the end of a calendar year shall not
limit the Tenant's obligation hereunder to pay the prorated portion of
Additional Rent applicable to that portion of such calendar year falling within
the Term.
Section 2.06 Late Penalties. Each such payment of Rent shall be
made promptly when due, without any demand, deduction or setoff whatsoever, at
the place directed by Landlord. Any payment of Rent not made within 3 days
after the date due shall bear interest at the rate of 12% per annum from the
due date until paid. Additionally, any payment of Rent not paid within 10 days
of when due shall be considered delinquent and subject to a late payment
charge, for each occurrence of delinquency, of 5% of the amount overdue and
payable. This late payment charge shall be in addition to the interest
provided for above and shall be due and payable with the next succeeding Rent
payment. Notwithstanding the foregoing, no interest or late charge shall be
imposed with respect to the first delinquency in each calendar
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year unless such delinquency continues for a period of 10 days after written
notice from Landlord given in accordance with the provisions for the giving of
notices hereunder. The obligation to pay Rent for the periods in the Term of
this Lease shall survive termination of this Lease.
Section 2.07 Security Deposit. Upon signing this Lease, Tenant
shall submit to Landlord a cash payment in the amount of $397,384.82, which
shall be retained by the Landlord as a security deposit securing the Tenant's
payment of Rent and performance of all of its other obligations under the
provisions of this Lease. On the occurrence of an Event of Default (as defined
herein), the Landlord shall be entitled, at its sole discretion, to apply any
or all of such sum in payment of any Rent then due and unpaid, any expense
incurred by the Landlord in curing any such default, and/or any damages
incurred by the Landlord by reason of such default (including but not limited
to attorneys' fees), in which event Tenant shall immediately restore the amount
so applied. However, the foregoing shall not serve in any event to limit the
rights, remedies and damages accruing to Landlord under Article XIV or any
other provision of this Lease on account of an Event of Default by Tenant. The
security deposit shall not be applied to payments of Rent hereunder, except
that portions of the security deposit which are not then applied on account of
a default by Tenant may be credited to Rent as follows: (l) an amount of
$97,895.19 shall be applied to the monthly installment of Base Rent for the 1st
month of the Term, (2) an amount of $99,829.88 shall be applied to the monthly
installment of Base Rent for the 24th month of the Term, (3) an amount of
$101,764.56 shall be applied to the monthly installment of Base Rent for the
36th month of the Term. Such security deposit shall not bear interest while
being held by the Landlord hereunder, except that the amounts referenced in
clauses (2) and (3) of the immediately preceding sentence shall be held in a
separate, interest bearing account at a bank selected by Tenant (and subject to
Landlord's reasonable approval) until applied in accordance with this
paragraph, with the Tenant paid any interest thereon concurrent with such
application, but with the Landlord making no warranties or assurances as to the
amount of interest which will accrue. Any amount of the security deposit
remaining at the end of the Term and not applied pursuant to the foregoing
provisions shall be returned to Tenant.
ARTICLE III - USE OF PREMISES
Section 3.01 Use. The Tenant shall use the Premises as a business
office, including research, development and optical/electronic laboratory
functions (which may include passive optical component design, development and
production), subject to all applicable zoning and other laws and title
covenants, and for no other purposes.
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Section 3.02 Laws. Landlord hereby represents to Tenant that (a)
the Building is located in a W-1 (light industrial) district for purposes of
zoning designation by ▇▇▇▇ Arundel County, Maryland, and (b) to Landlord's
knowledge, the Building is not in violation of any title covenants applicable
to the Building. Landlord shall be responsible for the compliance of all
portions of the Property exterior to the Building, the roof and structural
supports of the Building, and all common areas at the Building (i.e., the
building lobby, entrances and exits, elevators, elevator lobbies and restrooms)
with any and all federal, state and local laws, ordinances and regulations,
including but not limited to the Americans With Disabilities Act, zoning laws
and title covenants, which are applicable thereto, and Landlord shall make any
changes or improvements to the portions of the Property exterior to the
Building and the common areas of the Building which are required by any such
laws. Tenant shall comply with any and all federal, state and local laws,
ordinances and regulations, including but not limited to the Americans With
Disabilities Act, zoning laws and title covenants, which are applicable to the
Premises, to the Tenant's use of the Premises or to Tenant's use of any common
areas of the Property, and Tenant shall make any changes or improvements to the
Premises which are required by any such laws, subject to Section 5.03 hereof.
Section 3.03 Common Areas. The Landlord hereby grants to the
Tenant a non-exclusive license to use (a) all elevators, lobbies, restrooms and
any other common areas of the Building, and (b) all parking facilities and
other portions of the grounds on which the Building is located which are
manifestly designed and intended for common use by the occupants of the
Building, for pedestrian ingress and egress to and from the Premises and for
vehicular ingress and egress to and from the parking facilities. Such license
shall be exercised in common with the Landlord and other tenants (if any) and
their respective employees and invitees and in accordance with the reasonable
Rules and Regulations promulgated from time to time pursuant to the provisions
of Article XI.
ARTICLE IV - INSURANCE/INDEMNIFICATION
Section 4.01 Tenant's Insurance. The Tenant shall procure and
maintain, at its expense and throughout the Term, the following insurance:
(a) Commercial general liability insurance which
(l) insures against claims for bodily injury, personal injury, advertising
injury and property damage arising from the use, occupancy or maintenance of
the Premises or any other portion of the Property by Tenant or any of its
agents, employees, contractors, invitees and licensees, (2) insures without
exclusion damage or injury arising from heat, smoke or fumes from a hostile
fire, (3) has limits of not less than (i) $1,000,000 per occurrence, (ii)
$2,000,000
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general aggregate per location, (iii) $2,000,000 products and completed
operations aggregate, (iv) $1,000,000 for personal and advertising injury
liability, (v) $50,000 for fire damage legal liability, and (vi) $5,000 for
medical payments, which minimum limits may be increased if recommended by
Landlord's consultants or other insurance professionals (but not more
frequently than once in any three year period), (4) includes blanket
contractual liability and broad form property damage liability coverage, and
(5) contains a standard separation of insureds provision;
(b) Business auto liability insurance which
insures against bodily injury and property damage claims arising out of
ownership, use or maintenance of any hired and non- owned auto with a combined
single limit per accident of not less than $1,000,000;
(c) Worker's compensation in statutory limits and
employer's liability insurance with limits of not less than $100,000 for each
accident, $100,000 for each employee for bodily injury by disease, and $500,000
policy limit for bodily injury by disease;
(d) Umbrella excess liability insurance, in
addition to and in excess of the commercial general liability, business auto
liability and employer's liability insurance described above, which insures
against claims for bodily injury, personal injury, advertising injury and
property damage and having limits of not less than (i) $5,000,000 per
occurrence, and (ii) $5,000,000 for the annual aggregate; and
(e) All-risk property insurance covering all of
Tenant's personal property, inventory, equipment, fixtures, alterations and
improvements at the Premises up to the replacement value of such property.
Each liability insurance policy described above
(except employer's liability policies) shall name Landlord, Landlord's agent
and advisor, Landlord's property manager, and any Mortgagees (defined in
Section 12.01 below), and expressly including any trustees, directors,
officers, employees or agents of any such entities, all as additional insureds.
All such policies shall (i) be issued by insurers licensed to do business in
the state in which the Property is located, (ii) be issued by insurers with a
current rating of "A-" "VIII" or better in Best's Insurance Reports, (iii) be
primary without right of contribution from any of Landlord's insurance, (iv) be
written on an occurrence (and not claims-made) basis, and (v) be uncancellable
without at least 30 days' prior written notice to the Landlord and any
Mortgagee. At least 15 days before the Commencement Date (or, if earlier, the
date Tenant first enters into the Premises for any reason), Tenant shall
deliver to the Landlord certificates of insurance satisfactory to Landlord for
each such policy required above. Within 10 days after any such policy expires,
Tenant
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shall deliver to the Landlord a certificate of renewal evidencing replacement
of the policy. The limits of insurance required by this Lease or as otherwise
carried by Tenant shall not limit the liability of Tenant or relieve Tenant of
any obligations under this Lease, except to the extent provided in any waiver
of subrogation contained in this Lease. Tenant shall have sole responsibility
for payment of all deductibles.
Section 4.02 Landlord's Insurance. The Landlord shall maintain
throughout the Term all-risk or fire and extended coverage insurance upon the
Building in an amount equal to the full replacement value thereof (or, in lieu
thereof and if Landlord is an insurance entity, a specified plan of
self-insurance). If provided by independent entity, such policy shall (i) be
issued by an insurer licensed to do business in the state in which the Property
is located, (ii) be issued by an insurer with a current rating of "A-" "VIII"
or better in Best's Insurance Reports, and (iii) be written on an occurrence
(and not claims-made) basis. The premiums for such insurance for 1997 and
beyond and of each endorsement thereto shall be deemed to be part of the
Operating Expenses for purposes of Section 2.03 hereof. Furthermore, Tenant
shall pay, as Additional Rent and as billed by Landlord, the entire amount of
any increase in premiums for any insurance obtained by Landlord which occurs
solely due to the particular use of the Premises by Tenant.
Section 4.03 Waiver of Subrogation. Notwithstanding anything to
the contrary in this Lease, Landlord and Tenant each waives all rights to
recovery, claims or causes of action against the other and the other's agents,
trustees, officers, directors and employees on account of any loss or damage
which may occur to the Premises, the Property or any improvements thereto or to
any personal property of such party to the extent such loss or damage is caused
by a peril which is required to be insured against under this Lease, regardless
of the cause or origin (including negligence of the other party). Landlord and
Tenant each covenants to the other that, to the fullest extent permitted by
law, no insurer shall hold any right of subrogation against the other party.
Tenant covenants to Landlord that all policies of insurance maintained by
Tenant respecting property damage shall permit such waiver of subrogation.
Landlord covenants to Tenant that all policies of insurance maintained by
Landlord permit such waiver of subrogation.
Section 4.04 Indemnification. Tenant hereby agrees to indemnify
and hold Landlord and Landlord's agents and advisors harmless from and against
any cost, damage, claim, liability or expense (including attorney's fees)
incurred by or claimed against Landlord, directly or indirectly, as a result of
or in any way arising from Tenant's use and occupancy of the Premises, except
that which arises due to the negligence or intentional misconduct of the
Landlord or its employees or agents. Furthermore, Tenant hereby releases and
absolves Landlord from any liability for theft, damage or other
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loss which is caused by any third party which is not the Landlord in connection
with any furniture, fixtures, machinery, equipment, inventory or other personal
property of any kind belonging to Tenant or to any of its employees, agents,
invitees or licensees.
ARTICLE V - IMPROVEMENTS TO PREMISES
Section 5.01 Initial Improvements.
(A) Landlord shall make certain improvements at
the Building as follows:
(l) Landlord shall (a) renovate, repair
or replace (as necessary) any damaged or deteriorated structural, mechanical,
electrical and plumbing systems in the Building, including without limitation
the lobby/atrium, elevators, restrooms, exits and exitways, and other common
areas, to a good working order and condition, and (b) bring such structural,
mechanical, electrical and plumbing systems into full compliance with all fire,
life safety and handicap codes of all federal, state and local authorities
having jurisdiction over the Building and Property. The Landlord will repair
or replace (as necessary) the base building mechanical systems (i.e., the
rooftop compressors and condensers of the HVAC system at the Building, the air
handlers of the HVAC system at the Building, and the electric baseboard heating
system), excluding ductwork distribution and any load requirements in excess of
the base building service. Such improvements by Landlord will include
replacement of defective or damaged glass, roof repairs (as needed),
improvements to the parking lot (subject to seasonal conditions), and initial
landscaping. In addition, within 30 days after the date hereof Landlord shall
demolish interior partitions sufficient for the Tenant to construct the Space
Improvements described in subsection (B) of this section below. All of the
foregoing work shall be referred to hereinafter as the "Landlord's Work."
(2) Landlord shall pay any and all costs
of the Landlord's Work.
(3) Landlord shall use commercially
reasonable efforts to complete the Landlord's Work on or before the Target Date
set forth in Section 1.01 hereof, but Landlord shall have no liability to the
Tenant hereunder if prevented from doing so due to strike or other labor
troubles, governmental restrictions, failure or shortage of utility service,
national or local emergency, accident, flood, fire or other casualty, adverse
weather condition, other act of God, or any other cause beyond the Landlord's
reasonable control. In such event, the Commencement Date and Expiration Date
shall be postponed for a period equaling the length of such delay. However, if
any delay in completion of the Landlord's Work is caused by Tenant, then Tenant
shall commence all
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of its obligations hereunder (including the payments of Rent), and all terms
herein shall be effective and binding, on that date reasonably calculated by
Landlord or its contractor as the date on which Landlord would have
substantially completed the Landlord's Work if not for such delay.
(4) Landlord's Work shall be in
compliance with any and all federal, state and local laws, ordinances and
regulations, including but not limited to the Americans With Disabilities Act
and building codes of ▇▇▇▇ Arundel County.
(B) Tenant shall make certain improvements to the
Premises in order to prepare the Premises for occupancy by Tenant (the "Space
Improvements"), all to be paid for as provided in subsection (C) of this
section below. Such Space Improvements shall be designed and constructed in
accordance with the following procedures:
(1) Tenant shall promptly after
execution of this Lease engage an architect to prepare plans and specifications
of the Space Improvements for Landlord's review and approval. Such plans and
specifications shall be submitted to Landlord within 30 days after the date
hereof, and Landlord shall review and either approve or notify Tenant of
proposed changes thereto within 10 days after receiving such plans. Landlord
agrees to not unreasonably withhold its approval of Tenant's plans and
specifications, and Tenant agrees to make any changes to such plans and
specifications reasonably requested by Landlord. However, with respect to any
alterations to the Building exterior proposed by Tenant, Landlord shall have
the right in its sole and absolute subjective discretion to require
modifications or, in the absence thereof, withhold consent on the basis of
aesthetic considerations.
(2) Promptly after the plans and
specifications have been finalized, Tenant shall solicit bids and enter into
written contracts with a contractor or contractors for the construction of such
improvements and with other professionals for appropriate services in
connection therewith. The contractor(s) and professional(s) so engaged by
Tenant shall be subject to Landlord's prior written approval, which shall not
be unreasonably withheld. Additionally, each of Tenant's contract(s) with
contractor(s) shall provide for, at minimum, a retainage or holdback of 10% of
the total cost of the contract until 75% completion of the work, and 5% of the
total cost of the contract thereafter, and shall require dual obligee surety
bond(s) guaranteeing full payment and performance of the contract.
(3) Prior to commencing construction,
Tenant shall obtain all building and other permits or licenses required by law
for the Space Improvements, and promptly after completion of such work
(provided
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that Landlord has completed the Landlord's Work), Tenant shall procure a
certificate of occupancy for the Premises from the applicable governmental
authorities.
(4) All such construction shall be
supervised and, if necessary, managed by Landlord through its
representative(s), the cost of which services shall be paid for as provided in
subsection (C) of this provision below. Tenant shall at all times permit
Landlord and its representative(s) to inspect the Premises and the Tenant's
improvement work during construction.
(5) The Space Improvements shall be in
compliance with any and all federal, state and local laws, ordinances and
regulations, including but not limited to the Americans With Disabilities Act
and building codes of ▇▇▇▇ Arundel County.
(6) As stated in Section 1.01 hereof,
Tenant and its agents and contractors shall have the right to enter the
Premises prior to the Commencement Date for such construction purposes,
provided that prior to any such entry Tenant shall have obtained the insurance
required under Article IV hereof, and its contractors shall have obtained such
liability, workmen's compensation and other insurance as is reasonably
acceptable to Landlord. However, any delays in Tenant's completion of such
improvements beyond the Target Date set forth in Section 1.01 shall not delay
the Commencement Date, which shall be determined as set forth in Section 1.01.
(C) All costs and expenses of designing and
constructing the Space Improvements described in subsection (B) above shall be
paid as follows:
(1) Landlord shall provide and pay an
allowance (the "Allowance") of $20.10 per square foot of the Premises towards
(i) the costs of designing the Space Improvements and preparing plans and
specifications therefor, and (ii) the costs of constructing the Space
Improvements, including but not limited to all fees, costs and expenses paid
under construction contracts and subcontracts, a supervision and management fee
of $0.40 per rentable square foot of the Premises, costs and expenses, the
costs of materials, supplies, permits and other items, and any other
out-of-pocket expenditures incurred in any connection with such construction.
Such Allowance shall not be paid for the Landlord's Work or for any other costs
or purposes. Landlord represents to Tenant that Landlord has sufficient funds
or credit available to pay the Allowance in its entirety.
(2) Tenant shall pay any and all costs
of designing and constructing the Space Improvements which are in excess of the
Allowance.
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(3) Landlord shall disburse the
Allowance in installments to pay for completed work, and directly to the
professionals, contractors and other parties performing work on the Space
Improvements, upon presentation for each disbursement of (i) a requisition
substantially in the form of AlA Requisition Forms G702 and G703, including a
description of all completed work for which payment is requested, the amount
requested with a breakdown by each trade comprising the work, and the
percentage of the entire project completed after taking into account all such
work, (ii) approval by Landlord's construction manager of the requisition,
(iii) conditional lien waivers from all parties for whom such payment is
requested releasing all liens which may arise on account of the work performed
by such parties to the date of the request for payment, and (iv) unconditional
lien waivers covering all work up to and including the immediately preceding
payment. Each disbursement of a portion of the Allowance shall be made within
21 days after presentation of the required items. With respect to each
contract or subcontract item comprising part of the Space Improvements, a
retainage of 10% shall be withheld from the applicable disbursements until such
contract or subcontract item is 75% complete, at which time the retainage with
respect to such item shall be reduced to 5%, with the retainage to be fully
paid and disbursed upon (i) completion of the Space Improvements as required by
the applicable contract(s), (ii) delivery of unconditional lien waivers as
described above for all work comprising the improvements, and (iii) issuance of
a certificate of occupancy or other applicable approval by the local
authorities permitting occupancy of the Premises by Tenant for business (unless
any delay in issuance of the certificate of occupancy is solely due to the
failure of the Landlord to complete the Landlord's Work, in which event this
item (iii) shall not apply).
Section 5.02 Acceptance. Except for the Landlord's Work which is
to be completed as is described in Section 5.01(A) above, Tenant acknowledges
that it shall be leasing the Premises hereunder "as-is" without warranty or
representation of any kind except as may be expressly stated in this Lease.
Section 5.03 Tenant's Alterations. The Tenant shall not make any
alteration, addition or improvement to the Premises, whether structural or
nonstructural and including any signs or other items which may be visible from
the exterior of the Premises (but not including any interior cosmetic or
decorative alterations), without the Landlord's prior written consent, which
shall not be unreasonably withheld. Tenant shall provide such drawings, plans
and specifications as are requested by Landlord in reviewing any such proposed
improvements. Landlord agrees to respond to any request for approval within 15
days after receipt of all plans and information relevant thereto; however,
Landlord shall have the right to place conditions upon the granting of its
approval of any alteration or improvement, including but not limited to
requirements that the work be performed only by bonded
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contractors or that Landlord itself perform the work with the Tenant to
reimburse Landlord's out-of-pocket costs of the alteration or improvement. If
the Landlord consents to any such proposed alteration, sign, addition or
improvement, it shall be made at the Tenant's sole expense (and the Tenant
shall hold the Landlord harmless from any cost incurred on account thereof),
and at such time and in such manner as to not unreasonably interfere with the
use and enjoyment of the remainder of the Property by any other tenant (if
any). If Landlord requires that Landlord itself perform the work, the
requisite contract(s) shall be based on competitive bidding by contractors
reasonably acceptable to Tenant. All such alterations, signs and improvements
shall comply in all respects with any and all applicable federal, state and
local laws, ordinances and regulations, including but not limited to the
Americans With Disabilities Act and regulations promulgated thereunder, as well
as any applicable zoning laws and title covenants. Furthermore, Tenant shall
indemnify Landlord from all damages, losses or liability arising from such
alterations or improvements or the construction thereof by Tenant or by any
other party other than Landlord.
Section 5.04 Mechanics' Liens. The Tenant shall (a) within 15
days after notice thereof, bond or have released any mechanics', materialman's
or other lien filed or claimed against any or all of the Premises, the
Building, or any other property owned or leased by the Landlord by reason of
labor or materials provided for the Tenant or any of its contractors or
subcontractors, or otherwise arising out of the Tenant's use or occupancy of
the Premises, and (b) defend, indemnify and hold harmless the Landlord against
and from any and all liability or expense (including but not limited to
attorneys' fees) incurred by the Landlord on account of any such lien or claim.
Section 5.05 Fixtures. Any and all improvements, repairs,
alterations or other property affixed or attached to the Premises or Building
by the Landlord or the Tenant shall, immediately on the completion of their
installation, become the Landlord's property without payment therefor by the
Landlord, except that any furniture, appliances and office equipment 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) shall remain the Tenant's property.
ARTICLE VI - MAINTENANCE AND SERVICES
Section 6.01 Ordinary Services. Landlord shall make heating and
air-conditioning for the comfortable use and occupancy of the Premises
available 24 hours per day, 365 days per year. In addition, Landlord shall
make available (a) electricity and water suitable for the use of the Premises
in accordance with the provisions of Section 3.01, and (b) automatic elevator
service within the Building. Any repairs or replacements necessary for the
foregoing
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services shall be made during business hours unless after-hours work is
required in order to minimize disruption to the Tenant's business. Tenant
shall have access to the Premises 24 hours a day, 365 days per year.
Section 6.02 Services and Utility Payments. Tenant shall pay
directly to the supplier all costs and charges for all electricity which is
consumed at the Building.
Section 6.03 Excessive Use. The Tenant shall not, without first
obtaining the Landlord's written consent thereto, install within the Premises
any electrical machinery, appliances or equipment which uses electrical current
in excess of that which is standard for the Building. Landlord shall not
unreasonably withhold its consent but may require dedicated lines or other
protection against electrical overload.
Section 6.04 Maintenance by Tenant. The Tenant shall at all times
and at its own expense maintain the interior of the Premises in good, clean and
safe repair and condition, ordinary wear and tear and damage by casualty or
condemnation excepted. In addition, Tenant shall be responsible for (i)
regular interior window washing, cleaning, vacuuming and other janitorial
services and supplies in connection with the Building, and (ii) the collecting
and removing of trash and debris from the Building to sealed containers.
Section 6.05 Maintenance by Landlord. The Landlord shall keep in
good order and repair (a) the roof and other structural portions of the
exterior of the Building, including exterior window washing not less than twice
per year, (b) the lobbies, restrooms and other common areas of the Building,
(c) the base building heating, ventilating, air-conditioning, plumbing and
electrical facilities, and (d) the parking areas at the Property.
Section 6.06 Interruption. The Landlord shall have no liability
to the Tenant on account of any failure, modification or interruption of
electricity, water or other utility or HVAC or other service, but in the event
of interruption Landlord shall use its best efforts to provide for the
resumption of such service to the extent the same is within Landlord's control.
Notwithstanding anything herein to the contrary, if the interruption in any
service continues for a period of 5 days due to the fault of Landlord, and the
Premises are rendered untenantable thereby, then all Rent shall ▇▇▇▇▇
thereafter until the applicable service is restored.
ARTICLE VII - RIGHT OF ENTRY
Section 7.01 Right of Entry. Landlord and its agents and
contractors shall be entitled to enter the Premises (a) at any time to inspect
the Premises, (b) at any time to exhibit the Premises to any existing or
prospective purchaser or mortgagee thereof, (c) at any time to make any
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alteration, improvement or repair to the Building or the Premises which
Landlord is obligated to make hereunder, (d) at any time for any other purpose
relating to the operation or maintenance of the Property, or (e) during the
last 9 months of the Term to exhibit the Premises to any prospective tenant,
all provided that the Landlord shall (1) give the Tenant at least 24 hours'
prior notice of its intention to enter the Premises (unless doing so is
impractical or unreasonable because of emergency), and (2) use reasonable
efforts to avoid interfering with the Tenant's use and enjoyment thereof.
Tenant shall have the right to lock off and secure the elevators and stairwells
which service all floors on which Tenant occupies 100% of the rentable space,
provided that Tenant shall at no time violate any applicable county fire and
safety regulations, including any such regulations which require emergency
access to the space, and further provided that Landlord is given keys, security
card(s) or another appropriate method of access.
ARTICLE VIII - CASUALTIES
Section 8.01 General. If the Premises or Building are damaged by
fire or other casualty during the Term, then the following shall apply:
(A) The Landlord shall restore the Premises or
Building with reasonable promptness, taking into account the time required by
the Landlord to effect a settlement with, and to procure any insurance proceeds
from, any insurer against such casualty, to substantially the same condition as
existed immediately before such casualty. Landlord may temporarily enter and
possess any or all of the Premises for such purpose. The Landlord shall not be
obligated to repair, restore or replace any fixture, improvement, alteration,
furniture or other property owned or installed by the Tenant.
(B) The times for commencement and completion of
any such restoration shall be extended for the period of any delay arising due
to force majeure causes beyond the Landlord's control. If the Landlord
undertakes to restore the Premises or Building, but such restoration cannot be
accomplished within 210 days after the date of casualty, as determined by
estimate of Landlord upon such casualty, then Tenant may terminate this lease
by giving written notice thereof to the Landlord within 15 days after receipt
of such estimate from Landlord.
(C) From the time of such casualty to the
completion of restoration as described above, Tenant's rental obligations shall
be abated proportionately from that portion of the Premises which is rendered
untenantable as a result of the casualty. However, if more than 75% of the
Premises are rendered untenantable by such casualty, then, at Tenant's option,
the entire Building shall be deemed untenantable, and such rent
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abatement shall apply to the entire Building (except with respect to any space
actually used by Tenant).
Section 8.02 Substantial Destruction. Anything contained in the
foregoing provisions of this section to the contrary notwithstanding:
(A) If during the Term the Building is so damaged
by fire or other casualty that (a) either the Premises or the Building are
rendered substantially unfit for occupancy, or (b) the Building is damaged to
the extent that the Landlord elects to demolish the Building, or if any
mortgagee or lender requires that any material portion or all of the insurance
proceeds issued on account thereof be used to retire any material portion or
all of the debt secured by its mortgage, then in any such case the Landlord may
elect to terminate this Lease as of the date of such casualty by giving written
notice thereof to the Tenant within 60 days after the date of such casualty;
and
(B) In such event, (1) the Tenant shall pay to
the Landlord the Base Rent and any Additional Rent payable by the Tenant
hereunder and accrued through the date of such casualty, (2) the Landlord shall
repay to the Tenant any and all prepaid Rent for periods beyond such casualty,
and (3) the Landlord may enter upon and repossess the Premises 30 days after
notice to Tenant.
Section 8.03 Tenant's Negligence. Subject to the provisions of
Section 4.03 hereof, if any such damage to the Premises, the Building or
Property are caused by or result from the negligent or intentional act or
omission of the Tenant or any of its employees, contractors, agents, invitees
or licensees, then (a) the Rent shall not be abated or apportioned as
aforesaid, and (b) the Tenant shall pay to the Landlord upon demand, as
Additional Rent, if and only to the extent not paid by insurance, the cost of
(i) any repairs and restoration made or to be made as a result of such damage,
or (ii) (if the Landlord elects not to restore the Building) any damage or loss
which the Landlord incurs as a result of such damage.
ARTICLE IX - CONDEMNATION
Section 9.01 Right to Award. 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 a "Condemnation"), the Landlord shall be entitled to collect
from the condemning authority thereunder the entire amount of any award or
consideration for such conveyance, without deduction therefrom for any
leasehold or other estate held by the Tenant under this Lease. The Landlord
shall be entitled to conduct any condemnation proceeding and any settlement
connected therewith free of interference from the Tenant, and the Tenant
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hereby waives any right which it has to participate therein. However, the
Tenant may seek, in a separate proceeding, a separate award on account of any
damages or costs incurred by the Tenant as a result of any such Condemnation.
Section 9.02 Effect of Condemnation. If (a) all of the Premises
are covered by a Condemnation, or (b) any part of the Premises is covered by a
Condemnation and the remainder is insufficient for the reasonable operation of
the Tenant's business, or (c) any of the Building is covered by a Condemnation
and, in the Landlord's reasonable opinion, it would be impractical to restore
the remainder thereof, or (d) any of the rest of the Property is covered by a
Condemnation and, in the Landlord's reasonable opinion, it would be impractical
to continue to operate the remainder of the Property thereafter, then, in any
such event, the Term shall terminate on the date on which possession of the
property covered by such Condemnation is taken by the condemning authority
thereunder, and all Rent (including any Additional Rent and other charges
payable hereunder) shall be apportioned and paid to such date. If there is a
Condemnation and the Term does not terminate pursuant to the foregoing
provisions of this subsection, the operation and effect of this Lease shall be
unaffected by such Condemnation, except that the Base Rent shall be reduced in
proportion to the square footage of floor area, if any, of the Premises covered
by such Condemnation.
Section 9.03 Interruption. 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.
ARTICLE X - ASSIGNMENT/SUBLETTING
Section 10.01 Actions Covered. Any assignment by Tenant of this
Lease or its rights hereunder, any subletting of the Premises and any
license, mortgage, pledge or other transfer of any part of the Premises or any
of Tenant's interests therein or under this Lease shall all be referred to
hereinafter as a "Transfer." Furthermore, the sale, assignment or other
transfer of any direct or indirect controlling interest in the Tenant (if a
corporation), the sale, assignment or other transfer of any general partnership
interest in Tenant (if a partnership), the sale of substantially all of
Tenant's assets, and the merger or consolidation of Tenant into another
organization, after which Tenant shall not be the surviving corporation or
partnership, shall each be considered a "Transfer" for the purposes of this
Lease.
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Section 10.02 Restrictions. Tenant shall not Transfer this Lease
or the Premises without first obtaining the Landlord's prior written consent
thereto, which consent shall not be unreasonably withheld. In the event that
Tenant proposes any Transfer, Tenant shall notify Landlord in writing at least
30 days before the date on which the Transfer is to be effective and, as
included with such notice, furnish Landlord with (i) the name of the entity
receiving such Transfer (the "Transferee"), (ii) a detailed description of the
business of the Transferee, (iii) financial statements of the Transferee
prepared in accordance with GAAP applied on a consistent basis, which shall be
audited if audited statements are available, (iii) all written agreements
governing the Transfer, and (iv) any other information reasonably requested by
the Landlord with respect to the Transfer or the Transferee. In addition,
Tenant shall reimburse to Landlord its legal fees and any other out-of-pocket
expenses incurred in connection with the review and processing of such
documentation, up to an amount of $1,500. Landlord shall respond to Tenant's
request for approval or disapproval of the Transfer within 20 days after
Landlord receives the request and all documents and information required above.
Notwithstanding the foregoing, Landlord's consent shall not be required for any
Transfer to an entity which is a parent, subsidiary or other affiliate of
Landlord or to any corporation which has, at the time of the Transfer, a
stockholder's equity equal to the stockholder's equity of the Tenant at the
same point in time (as calculated in accordance with GAAP), provided that
Tenant furnishes Landlord with the information regarding such Transfer which is
required above for all Transfers.
Section 10.03 Liability to Landlord. Tenant hereby agrees that
notwithstanding anything in this Lease to the contrary, and regardless of
whether or not Landlord's consent is required hereunder, no Transfer shall be
valid or effective unless and until the Transferee agrees in a written
document, in form and substance reasonably satisfactory to Landlord, that the
Transferee shall (1) in the case of a subletting of any part of the Premises,
observe and perform all duties, obligations and liabilities of the Tenant under
the terms of this Lease as such terms relate to the space subleased, or (2) in
the case of all other Transfers, observe and perform all duties, obligations
and liabilities of the Tenant under the terms of this Lease. In addition, no
Transfer of any kind, regardless of whether or not Landlord's consent thereto
is required hereunder, shall serve to relieve or release the Tenant in any way
from full and direct liability for the timely performance of all of the
Tenant's duties and obligations under this Lease.
Section 10.04 Excess Rents. In the event that Tenant effects any
Transfer to a third party entity which is not affiliated with Tenant and at any
time receives rent and/or other consideration on a periodic basis which exceeds
that which Tenant is obligated to pay to Landlord hereunder, Tenant shall pay
to Landlord 50% of such excess rent or other consideration, after
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recovering the leasing commissions, tenant improvement costs and any other
out-of-pocket costs of consummating such Transfer, when and as received by
Tenant.
Section 10.05 Landlord's Transfers. Landlord shall have the
unrestricted right to assign or transfer its interest in this Lease to
purchasers of the Building, to holders of mortgages or deeds of trust on the
Building, or to any other party, and upon the assumption by any such party of
the obligations of Landlord hereunder, Landlord shall be released from all
duties, obligations and liabilities arising hereunder after the assignment or
transfer becomes effective. Landlord shall endeavor to give Tenant 30 days'
prior notice of such assignment or transfer.
ARTICLE XI - RULES & REGULATIONS
Section 11.01 Landlord's Rules. The Landlord shall have the right
to impose and subsequently modify, from time to time, reasonable rules and
regulations (hereinafter referred to as the "Rules and Regulations") having
uniform applicability to all tenants of the Building (subject to the provisions
of their respective leases) and governing their use and enjoyment of the
Building and the remainder of the Property. The Tenant and its agents,
employees, invitees and licensees shall comply with such Rules and Regulations
after receiving notice thereof. A copy of the Rules and Regulations in effect
on the date hereof is attached hereto as Exhibit C.
ARTICLE XII - MORTGAGE LENDERS
Section 12.01 Subordination. This Lease shall be subject and
subordinate to the lien, operation and effect of each mortgage, deed of trust,
ground lease and/or other similar instrument covering any or all of the
Premises or the Property, and each renewal, modification or extension thereof
(each of which referred to as a "Mortgage"), all automatically and without the
necessity of any further action by either party hereto, provided, however, that
in the event the beneficiary or ground lessor under any such Mortgage (referred
to as a "Mortgagee") succeeds to the interest of Landlord hereunder through
foreclosure or otherwise, such Mortgagee shall honor this Lease and not disturb
Tenant in its possession of the Premises except upon an Event of Default
(defined in Section 14.01 below). In addition, Tenant shall attorn to any such
Mortgagee and agrees that such Mortgagee shall not be liable to Tenant for any
defaults by Landlord under this Lease or for any other event occurring prior to
such Mortgagee's succeeding to the interest of Landlord hereunder. Upon
request of either party hereto, the parties shall use commercially reasonable
efforts to obtain from any Mortgagee a separate written agreement setting forth
the foregoing rights of subordination, non-
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disturbance and attornment. Landlord represents to Tenant that as of the date
hereof, the Property is not subject to any debt.
Section 12.02 Written Agreement. The Tenant shall, within 10 days
after request by the Landlord or any Mortgagee, execute, acknowledge and
deliver such further instrument as is requested by Landlord or any Mortgagee to
acknowledge the rights of the parties described in Section 12.01 above and
providing such other information and certifications as is reasonably requested.
Any Mortgagee may at any time subordinate the lien of its Mortgage to the
operation and effect of this Lease without obtaining the Tenant's consent
thereto, 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 jurisdiction in which the Property is
located.
Section 12.03 Estoppel Certificate. Landlord and Tenant shall
each, from time to time within 10 business days after request by the other (or
any Mortgagee), execute, acknowledge and deliver (or, at the Landlord's
request, to any existing or prospective purchaser, assignee or Mortgagee) a
written certification (a) that this Lease is unmodified and in full force and
effect (or, if there has been any modification, stating 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, (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 all improvements thereto are
as required hereunder, and the date on which the Term commenced, (e) as to
whether, to the best knowledge, information and belief of the party executing
the certificate, the Landlord or the Tenant is then in default in performing
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.
Any such certificate may be relied upon by the Landlord and any such other
party to whom the certificate is directed.
ARTICLE XIII - ENVIRONMENTAL COVENANTS
Section 13.01 Definition. For purposes of this Lease, the term
"Hazardous Substances" means (i) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et.
seq.), as amended from time to time, and regulations promulgated thereunder,
(ii) any "hazardous substance" as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et.
seq.), as amended from time to time, and regulations promulgated thereunder,
(iii) any "oil, petroleum products, and their by-products" as defined by the
Maryland Environment Code ▇▇▇. Section 411(3)(I), as amended from time to
time, and regulations promulgated thereunder, (iv) any
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"controlled hazardous substance" or "hazardous substance" as defined by the
Maryland Environment Code ▇▇▇., Title 7, subtitle 2, as amended from time to
time, and regulations promulgated thereunder, (v) any "infectious waste" as
defined by the Maryland Environment Code ▇▇▇. Section 9-227, as amended from
time to time, and regulations promulgated thereunder, (vi) any explosives,
flammable substances, radioactive materials, asbestos in any form, paint
containing lead, materials containing urea formaldehyde, polychlorinated
biphenyls, or any other hazardous, toxic or dangerous substances, wastes or
materials, and (vii) any other substance which by any federal, state or local
law or regulation requires special use, storage, handling or disposal.
Section 13.02 Prohibitions. Tenant hereby covenants and agrees as
follows:
(A) In the event Tenant plans to store, use or
otherwise handle any Hazardous Substances at the Premises, Tenant shall notify
Landlord in writing with a description of the relevant substance, the nature of
the activity to be undertaken, Tenant's plans for proper securing and disposal
of the substance, and any other information requested by Landlord.
(B) Any storage, use, disposal or other handling
of Hazardous Substances shall be conducted strictly in accordance with any and
all federal, state and local laws and regulations applicable thereto. Tenant
shall obtain and maintain in full force and effect at all times any licenses,
permits or other approvals for such activities.
(C) Upon request of Landlord, Tenant shall
provide copies of all documentation verifying the legal and authorized nature
of the Tenant's handling of the Hazardous Substance and any other records held
by Tenant with respect thereto.
(D) At all times, Tenant shall permit the
Landlord or its representatives to monitor the compliance by Tenant with all
applicable laws and regulations through inspections, testing or other methods.
(E) Tenant shall take any and all steps to
protect the value and marketability of the Property, which steps shall include
the proper securing of any Hazardous Substances legally handled at the Premises
by Tenant, the safe handling of such Substances, and the immediate remediation
of the consequences following any accident or other adverse circumstances.
Section 13.03 Inspection. Landlord, in addition to its other
rights under this Lease, may enter upon the Premises at any time for the
purposes of inspecting to determine whether the Premises or the environment
have
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become contaminated with Hazardous Substances. In the event Landlord discovers
the existence of any such contamination due to fault or other act of Tenant or
its agents, employees, invitees or licensees, Tenant shall reimburse Landlord
upon demand for the costs of such inspection, sampling and analysis.
Section 13.04 Indemnification. Without limiting the above, Tenant
shall indemnify and hold harmless Landlord from and against any and all claims,
losses, liabilities, damages, costs and expenses, including without limitation
attorneys' fees and the costs of any required or necessary repair, cleanup or
detoxification, arising out of or in any way connected with the existence, use,
manufacture, storage or disposal of Hazardous Substances by Tenant or its
employees, agents, invitees, licensees or contractors on, under or about the
Premises, the Building or the Property. The indemnity obligations of Tenant
under this clause shall survive any termination of this Lease.
Section 13.05 Representation. Except as may be disclosed in the
Environmental Property Evaluation of Airport Square III dated March 6, 1996
prepared by Environmental Management Group, Landlord hereby represents to
Tenant that to the best of Landlord's knowledge, as of the date hereof, the
Premises do not contain any Hazardous Substances requiring remediation under
applicable law. Landlord shall indemnify and hold harmless Tenant from and
against any and all claims, judgments, losses, liabilities, damages, costs and
expenses, including without limitation attorney's fees and the costs of any
required or necessary repair, cleanup or detoxication, arising out of or in
any way connected with the existence, use, manufacture, storage or disposal of
Hazardous Substances on, under or about the Premises, the Building or the
Property by Landlord, provided, however, that the foregoing indemnification
shall not apply to any claims, judgments, losses, liabilities, damages, costs
or expenses attributable to Hazardous Substances to the extent that Tenant has
contributed to or exacerbated the condition or quantity of such Hazardous
Substances or any damage or injury resulting therefrom. Landlord shall also
indemnify and hold harmless Tenant from and against any and all judgments and
reasonable defense costs in connection with any lawsuit or administrative
enforcement action brought against Tenant by a governmental agency or authority
or private party (other than a Tenant Affiliate) seeking remediation or
contribution towards the cost of remediation of Hazardous Substances placed in
or at the Premises by any person or entity (other than Landlord, Tenant or a
Tenant Affiliate) prior to the entry onto the Property of Tenant or any of its
employees, agents, invitees, licensees or contractors, provided, however, that
the forgoing indemnification shall not' apply to any "judgments or reasonable
defense costs attributable to Hazardous Substances where, in violation of any
provision of this Lease including, without limitation, any provision of this
Article XIII, Tenant has contributed to or exacerbated the condition or
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quantity of such Hazardous Substances or any damage or injury resulting
therefrom. Landlord shall have the right to conduct the defense of Tenant
against any asserted liability within the scope of Landlord's indemnifications
with an attorney of Landlord's choice. As used in this Section 13.05, the
term "Tenant Affiliate" shall mean and include any affiliate, agent, employee,
contractor, licensee or invitee of Tenant or of any affiliate of Tenant. As
used in the preceding sentence, the term "affiliate" shall mean any person or
entity which, either directly or indirectly, owns or controls, is owned or
controlled by, or is under common ownership or control with, Tenant. The
indemnify obligations of Landlord under this Section 13.05 shall survive any
termination of this Lease.
ARTICLE XIV - DEFAULT AND REMEDIES
Section 14.01 Defaults. 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 fails to (1) pay any Rent or
any other sum which it is obligated to pay by any provision of this Lease, when
and as due and payable hereunder, or (2) perform any of its other obligations
under the provisions of this Lease; or
(B) If the Tenant or any guarantor of this Lease
(1) 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, (2) is
subject to a petition in bankruptcy or admits in writing its inability to pay
its debts as they come due, (3) makes an assignment for the benefit of its
creditors, (4) files a petition or an answer seeking a reorganization or an
arrangement with creditors, or seeks to take advantage of any insolvency law,
(5) performs any other act of bankruptcy, or (6) files an answer admitting the
material allegations of a petition filed against the Tenant in any bankruptcy,
reorganization or insolvency proceeding.
Section 14.02 Grace Period. Anything contained in the provisions
of this article to the contrary notwithstanding, on 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 applicable law unless and until:
(A) The Landlord has given written notice thereof
to the Tenant, and
(B) The Tenant has failed, (l) if such Event of
Default consists of a failure to pay money, to pay all of such money within 5
days after such notice, or (2) if such Event of Default consists of something
other than a failure to pay money, to fully cure such Event of Default within
15
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days after such notice or, if such Event of Default cannot be cured within 15
days and Tenant commences to cure same within 15 days, to proceed diligently
with efforts to cure such Event of Default and to fully cure same within 60
days; all provided, that
(C) No such notice shall be required, and the
Tenant shall be entitled to no such grace period, (1) if the same Event of
Default occurs more than twice during any 12 month period, or (2) in the case
of any Event of Default enumerated in the provisions of subsection (B) in
Section 14.01 above.
Section 14.03 Remedies. Upon the occurrence of any Event of
Default, the Landlord may (subject to Section 14.02 above) take any or all of
the following actions:
(A) Sell at public or private sale all or any
part of the fixtures, equipment, inventory and other tangible personal property
belonging to Tenant (but not any intangible personal property or any
confidential business records) in which the Landlord has a lien by grant from
Tenant, statute or otherwise, at which sale Landlord shall have the right to
become the purchaser upon being the highest bidder, and apply the proceeds of
such sale, first, to the payment of all costs and expenses of seizing and
storing such property and conducting the sale (including all attorneys' fees),
second, toward the payment of any indebtedness, including (without limitation)
that for Rent, which may be or may become due from Tenant to Landlord, and,
third, to pay Tenant any surplus remaining after all indebtedness of Tenant to
Landlord including expenses has been fully paid;
(B) Perform on behalf of and at the expense of
Tenant any obligation of Tenant under this Lease which Tenant has failed to
perform, with prior notice to Tenant, the total cost of which by Landlord,
together with interest thereon at the rate of 18% per annum from the date of
such expenditure, shall be deemed Additional Rent and shall be payable by
Tenant to Landlord upon demand;
(C) With or without terminating this Lease and
the tenancy created hereby, reenter the Premises with or without court action
or summary proceedings, remove Tenant and all other persons and property from
the Premises, and store any such property in a public warehouse or elsewhere at
the costs of and for the account of Tenant, all without resort to legal process
and without Landlord being deemed guilty of trespass or becoming liable for any
loss or damage occasioned thereby;
(D) With or without terminating this Lease, and
from time to time, make such improvements, alterations and repairs as may be
necessary in order to relet the Premises, and relet the Premises or any part
thereof upon such term or terms (which may be for a term extending beyond
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the term of this Lease) at such rental or rentals and upon such other terms and
conditions (which may include concessions, free rent and/or improvements) as
Landlord in its sole discretion may deem advisable; and, upon each such
reletting, all rentals received by Landlord shall be applied, first, to the
payment of any indebtedness other than Rent due hereunder from Tenant to
Landlord, second, to the payment of all costs and expenses of such reletting
(including but not limited to brokerage fees, reasonable attorneys' fees and
costs of improvements, alterations and repairs attributable to the unexpired
Term of this Lease), third, to the payment of all Rent due and unpaid
hereunder, and the balance, if any, shall be held by Landlord and applied in
payment of future rent as the same may become due and payable hereunder;
(E) Enforce any provision of the Lease or any
other agreement between the parties by injunction, temporary restraining order
or other similar equitable remedy; and/or
(F) Exercise any other legal or equitable right
or remedy which it may have by law or otherwise.
No reentry or taking possession of the Premises by
Landlord shall be construed as an election on its part to terminate this Lease
unless a written notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding that Landlord may have re-leased the Premises without
termination, Landlord may at anytime thereafter elect to terminate this Lease
for any previous default. If the Premises or any part thereof is re-leased,
Landlord shall not be liable for, nor shall Tenant's obligations hereunder be
diminished by reason of, any failure by Landlord to relet the Premises or any
failure by Landlord to collect any rent due upon such reletting. No action
taken by the Landlord under the provisions of this section shall operate as a
waiver of any right which the Landlord would otherwise have against the Tenant
for the Rent hereby reserved or otherwise, and the Tenant shall at all times
remain responsible to the Landlord for any loss and/or damage suffered by the
Landlord by reason of any Event of Default. However, nothing in this Lease
shall restrict or prohibit Tenant from taking any legal action of any kind to
protect its rights available by virtue of this Lease or applicable law, all of
which rights are reserved by Tenant in all respects.
Section 14.04 Damages. Upon any Event of Default, Tenant shall
remain liable to the Landlord for the following amounts: (a) any Rent of any
kind whatsoever which may have become due with respect to the period in the Term
which has already expired, (b) all Rent which becomes due during the remainder
of the Term, (c) all costs, fees and expenses incurred by Landlord in leasing
the Premises to others from time to time, including but not limited
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to leasing commissions, construction and other build-out costs, design and
permitting costs and the like, and (e) all costs, fees and expenses incurred by
Landlord in pursuit of its remedies hereunder, including but not limited to
attorneys' fees and court costs. All such amounts shall be due and payable
immediately upon demand by Landlord and shall bear interest at 18% per annum
until paid. Furthermore, at Landlord's option, Tenant shall be obligated to
pay, in lieu of item (b) above in this Section 14.04, an amount (the
"Substitute Amount") which is equal to (i) the present value of all Rent which
would become due during the remainder of the Term, including all Additional
Rent which shall be deemed to continue and increase over such remainder of the
Term at the average rate of increase occurring over the then-expired portion of
the Term, with such present value to be determined by discounting at an annual
rate of interest which is equal to the bond- equivalent yield for the most
recent auction of U.S. Treasury Bills with a 1-year maturity, minus (ii) the
fair market rental value of the Premises for the remainder of the Term, as
determined by independent real estate professional selected by Landlord.
Tenant and Landlord acknowledge and agree that payment to Landlord of the
foregoing Substitute Amount a reasonable forecast of the actual damages which
will be suffered by Landlord in case of an Event of Default by Tenant, which
actual damages are otherwise difficult or impossible to ascertain, and
therefore such payment constitutes liquidated damages and not a penalty. Any
suit or action brought by Landlord to collect any such liquidated damages shall
not in any manner prejudice any other rights or remedies of Landlord hereunder.
Section 14.05 Landlord's Lien. Tenant hereby grants to Landlord an
express first and prior contract lien and security interest on all fixtures,
equipment, inventory and other property (except for intangible personal
property, such as patents and trademarks) owned by Tenant which may be placed
in the Premises or affixed or attached thereto and also upon all proceeds of
any insurance which may be issued on account of damage to any such property.
All exemption laws are hereby waived in favor of said lien and security
interest benefiting Landlord. This lien and security interest is given in
addition to any statutory lien benefiting Landlord and shall be cumulative
thereto or alternative thereto as elected by Landlord at any time. Landlord
shall, in addition to all of its rights under the Lease, also have all of the
rights and remedies of a secured party under the Uniform Commercial Code of the
state in which the Premises are located. Notwithstanding the foregoing, the
foregoing lien and security interest shall be automatically subject and
subordinate to any lien and security interest granted by Tenant in order to
secure the repayment of loans made to Tenant. Landlord shall, upon request,
execute and deliver any separate agreement reasonably requested in order to
provide evidence of such subordination.
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Section 14.06 Waiver of Jury Trial. All parties hereto, both the
Landlord and Tenant as principals and any guarantors, hereby release and waive
any and all rights provided by law to a trial by jury in any court or other
legal proceeding initiated to enforce the terms of this Lease, involving any
such parties, or connected in any other manner with this Lease.
ARTICLE XV - QUIET ENJOYMENT
Section 15.01 Covenant. 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 the Premises and such
rights as the Tenant may hold hereunder with respect to the remainder of the
Property.
ARTICLE XVI - NOTICES
Section 16.01 Notices. Any notice, demand or other communication
to be provided hereunder to a party hereto shall be (a) in writing, (b) deemed
to have been given (i) three (3) days after being sent in the United States
mails, postage prepaid and certified, return receipt requested, (ii) one day
after being sent by overnight courier, or (iii) immediately upon its actual
delivery, and (c) addressed to the Premises and to the attention of Vice
President and General Counsel if directed to the Tenant, or addressed to c/o
Allegis Realty Investors, 242 Trumbull Street, Hartford, CN, Attn: Asset
Manager - Airport Square, if directed to the Landlord.
ARTICLE XVII - GENERAL
Section 17.01 Entire Agreement. This Lease represents the entire
agreement between the parties hereto as to the subject matter hereof and
supersedes all prior written or oral negotiations, representations, warranties,
statements or agreements between the parties hereto as to the same.
Section 17.02 Amendment. This Lease may be amended by and only by
a written instrument executed and delivered by each party hereto.
Section 17.03 Applicable Law. This Lease shall be given effect and
construed by application of the law of the state in which the Property is
located.
Section 17.04 Waiver. Neither the Landlord nor the Tenant shall 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
either such party in exercising any such right shall be deemed to be a waiver
of its future exercise. No such waiver as to any instance
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involving the exercise of any such right shall be deemed a waiver as to any
other such instance or any other such right.
Section 17.05 Time of Essence. Time shall be of the essence of
this Lease.
Section 17.06 Headings. The headings of the articles, subsections,
paragraphs and subparagraphs hereof are provided herein only for convenience of
reference and shall not be considered in construing their contents.
Section 17.07 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 any other such provision or 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.
Section 17.08 Successors and Assigns. This Lease shall be fully
binding upon the parties hereto and each of their respective successors and
assigns. Whenever two or more parties constitute the Tenant, all such parties
shall be jointly and severally liable for performing the Tenant's obligations
hereunder.
Section 17.09 Commissions. Each party hereto hereby represents and
warrants to the other that in connection with the leasing of the Premises
hereunder, the party so representing and warranting has not dealt with any real
estate broker, agent or finder, except for ▇.▇. ▇▇▇▇▇▇▇ & Co. and its
cooperating broker, ▇▇▇▇▇ & Associates (the "Broker"). Each party hereto shall
indemnify the other against any inaccuracy in such party's representation.
Landlord hereby agrees that it shall pay a commission to the Broker according
to a separate agreement. The parties acknowledge and agree that the Broker
shall be a third party beneficiary of the foregoing covenants.
Section 17.10 Recordation. This Lease may not be recorded among
the land records or among any other public records, without the Landlord's
prior written consent.
Section 17.11 Perpetuities. If the rule against perpetuities would
invalidate this Lease or any portion hereof, or would limit the time during
which this Lease shall be effective, due to the potential failure of an
interest in property created herein to vest within a particular time, then
notwithstanding anything to the contrary herein, each such interest in property
must vest, if at all, before the passing of 21 years from the date of
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36
this Lease, or this Lease shall become null and void upon the expiration of
such 21 year period and the parties shall have no further liability hereunder.
Section 17.12 Liability Limitation. Landlord's maximum liability
hereunder shall be limited to the value of Landlord's equity interest in the
Building. Any liability of Landlord hereunder shall be without recourse to any
trustee, director, officer, employee, representative, asset manager, investment
advisor or agent of Landlord, all of whom shall have no personal liability in
any connection with this Lease.
Section 17.13 Authority. Each party, as well as any entities
and/or individuals executing this Lease on behalf of such party, represents and
warrants to the other that the execution, delivery and performance of this
Lease have been duly authorized by all required corporate, partnership or other
action on the part of such party, and this Lease constitutes the valid and
binding obligation of such party enforceable against such party in accordance
with its terms.
Section 17.14 Exhibits. Each exhibit, addendum or other attachment
hereto is hereby made a part of this Lease having the full force of all other
provisions herein.
IN WITNESS WHEREOF, each party hereto has executed this Lease under
seal on the day and year written first above.
LANDLORD: AETNA LIFE INSURANCE COMPANY
By: Aliegis Realty Investors LLC
Its: Investment Advisor and Agent
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------- -----------------------------------
Witness Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Title: Senior Vice President
------------------------------
TENANT: CIENA CORPORATION
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------- -----------------------------------
Witness Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Chief Financial Officer
------------------------------
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JOINDER
The undersigned, Trustee pursuant to Trust Agreement dated March 28, 1996, the
beneficiary of which is the Landlord named in the foregoing Lease, joins
hereinbelow to subject its interest in the Property, as title owner of the
Property, to the Lease, but not for the purpose of creating any obligations or
liability for such Trustee thereunder.
TRUSTEE: THE TITLE GUARANTEE COMPANY
/s/ ▇▇▇▇ ▇. MARIGELS By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- ----------------------------------
Witness Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Assistant VP
-----------------------------
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