000 XXXXX XXXXXX
XXXXXXXXX, XX
RETAIL LEASE
BY AND BETWEEN
THE XXXXXX XXXXXXX COMPANY
(LANDLORD)
AND
IMTEK CORPORATION
(TENANT)
TABLE OF CONTENTS
SECTIONS PAGE
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Section 1. Definitions
Section 2. Premises; Measurement
Section 3. Term
Section 4. Rent; Security Deposit
Section 5. Taxes
Section 6. Use of Premises and Common Areas
Section 7. Insurance and Indemnification
Section 8. Utilities
Section 9. Repairs and Maintenance
Section 10. Improvements
Section 11. Landlord's Right of Entry
Section 12. Damage or Destruction
Section 13. Condemnation
Section 14. Assignment and Subletting
Section 15. Rules and Regulations
Section 16. Subordination and Attornment
Section 17. Defaults and Remedies
Section 18. Estoppel Certificate
Section 19. Quiet Enjoyment
Section 20. Notices
Section 21. General
EXHIBITS
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A Site Plan showing Property and Building
B Drawing showing approximate location of Premises
C Landlord's Work
D Current Rules and Regulations
RIDERS
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1
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RETAIL LEASE
THIS LEASE is made on this _____ day of ____________________, 1997 (the
"EFFECTIVE DATE"), by and between THE XXXXXX XXXXXXX COMPANY, a Maryland
corporation (the "LANDLORD"), and IMTEK CORPORATION, a Maryland corporation (the
"TENANT").
IN CONSIDERATION of the agreements and covenants hereinafter set forth,
Landlord and Tenant mutually agree as follows:
1. DEFINITIONS.
1.1. As used herein, the following terms shall have the following
meanings:
"ADDITIONAL RENT" has the meaning given it in subsection 4.2.
"ALTERATIONS" has the meaning given it in subsection 10.2.
"BASE RENT" has the meaning given it in subsection 4.1.
"BUILDING" means the building known as 000 Xxxxx Xxxxxx and
located at 000 Xxxxx Xxxxxx xx Xxxxxxxxx Xxxx, Xxxxxxxx. The Building, which
contains approximately 24,250 rentable square feet, is more particularly shown
on EXHIBIT A.
"BUILDING SERVICE EQUIPMENT" means all apparatus, machinery,
devices, fixtures, appurtenances, equipment and personal property now or
hereafter located on the Premises and owned by the Landlord.
"COMMON AREAS" has the meaning given it in subsection 6.5.1.
"CONDEMNATION" has the meaning given it in subsection 13.1.
"EVENT OF DEFAULT" has the meaning given it in subsection 17.1.
"INSURANCE PREMIUMS" means the aggregate of any and all premiums
paid by the Landlord for hazard, liability, loss-of-rent, workmens' compensation
or similar insurance upon any or all of the Property.
"LANDLORD" means the Person hereinabove named as such and its
successors and assigns.
"LANDLORD'S WORK" has the meaning given to it in subsection 10.1.
"LEASE YEAR" means (a) the period commencing on the Rent
Commencement Date and terminating at 11:59 p.m. on the first anniversary of the
last day of the month in which the Rent Commencement Date occurs, and (b) each
successive period of twelve (12) calendar months thereafter during the Term.
"LIQUIDATED DAMAGES" has the meaning given it in subsection 17.3.
"MORTGAGE" has the meaning given it in subsection 16.1.
"OPERATING COSTS" means any and all costs and expenses incurred
by the Landlord for services performed by the Landlord or by others on behalf of
the Landlord with respect to the operation and maintenance of the Property and
the Common Areas located therein and serving or allocable to the Premises,
including, without limitation, all costs and expenses of:
(a) operating, maintaining, repairing, lighting, signing,
cleaning, removing trash from, painting, striping, controlling of traffic in,
controlling of rodents in, policing and securing the Common Areas (including,
without limitation, the costs of uniforms, equipment, assembly permits,
supplies, materials, alarm and life safety systems, and maintenance and service
agreements);
(b) purchasing and maintaining in full force insurance
(including, without limitation, liability insurance for personal injury, death
and property damage, rent insurance, insurance against fire, extended coverage,
theft or other casualties, workers' compensation insurance covering personnel,
fidelity bonds for personnel, insurance against liability for defamation and
claims of false arrest occurring on or about the Common Areas, and plate glass
insurance);
(c) removing snow, ice, water, litter and debris;
(d) operating, maintaining, repairing and replacing machinery,
furniture, accessories and equipment used in the operation and maintenance of
the Common Areas, and the personal property taxes and other charges incurred in
connection with such machinery, furniture, accessories and equipment;
(e) maintaining and repairing roofs, awnings, paving, curbs,
walkways, sidewalks, drainage pipes, ducts, conduits, grease traps and lighting
fixtures throughout the Common Areas;
(f) planting, replanting and replacing flowers, shrubbery,
trees, grass and planters;
(g) providing electricity, heating, ventilation and air
conditioning to the Common Areas, and operating, maintaining and repairing any
equipment used in connection therewith, including, without limitation, costs
incurred in connection with determining the feasibility of installing,
maintaining, repairing or replacing any facilities, equipment, systems or
devices which are intended to reduce utility expenses of the Property as a
whole;
(h) water and sanitary sewer services and other services, if
any, furnished to the Common Areas for the non-exclusive use of tenants;
(i) janitorial services for the Building;
(j) enforcing any operating agreements pertaining to the Common
Areas or any portions thereof, and any easement and/or rights agreements entered
into by the Landlord for the benefit and use of the Landlord, the Property or
tenants thereof, or any arbitration or judicial actions undertaken with respect
to the same;
(k) maintaining and repairing the Property, including, without
limitation, exhaust systems, sprinkler systems, pumps, fans, switchgear, loading
docks and ramps, freight elevators, escalators, passenger elevators, stairways,
service corridors, delivery passages, utility plants, transformers, doors,
walls,
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floors, skylights, ceilings, windows and fences;
(l) accounting, audit and management fees and expenses, payroll,
payroll taxes, employee benefits and related expenses of all personnel engaged
in the operation, maintenance, security and management of the Property,
including, without limitation, security and maintenance personnel, secretaries
and bookkeepers (including, specifically, uniforms and working clothes and the
cleaning thereof, tools, equipment and supplies used by such personnel, and the
expenses imposed on or allocated to the Landlord or its agents pursuant to any
collective bargaining or other agreement);
(m) the cost and expense of complying with all federal, state
and local laws, orders, regulations and ordinances applicable to the Property
which are now in force, or which may hereafter be in force;
(n) the cost of all capital improvements made to the Building
and which are not provided for in subsections (a) through (m) above; provided
that the cost of each such capital improvement, together with any financing
charges incurred in connection therewith, shall be amortized over the useful
life thereof, as reasonably determined by Landlord; and
(o) INTENTIONALLY DELETED
"OPERATING COSTS STATEMENT" has the meaning given it in
subsection 4.3.2.
"ORIGINAL TERM" has the meaning given it in subsection 3.1.
"PARKING AREAS" has the meaning given it in subsection 6.5.1.
"PERSON" means a natural person, a trustee, a corporation, a
limited liability company, a partnership and/or any other form of legal entity.
"PREMISES" means that certain space having a rentable area of 980
rentable square feet and located on the ground floor of the Building and known
as 000 X. Xxxxxxx Xxxxxx, as more particularly depicted on EXHIBIT B; provided,
that if at any time hereafter any portion of the Premises becomes no longer
subject to this Lease, "Premises" shall thereafter mean so much thereof as
remains subject to this Lease.
"PROPERTY" means that certain parcel of land containing
approximately ___NA___ acres, more or less, together with the Building thereon.
The Property is more particularly shown on EXHIBIT A.
"RENT" means all Base Rent and all Additional Rent.
"RENT COMMENCEMENT DATE" has the meaning given to it in
subsection 3.1.
"RULES AND REGULATIONS" has the meaning given to it in section
15.
"TAX YEAR" means the 12-month period beginning July 1 of each
year or such other 12-month period (deemed for the purposes of this Lease to
have 365 days) established as a real estate tax year by the taxing authority
having lawful jurisdiction over the Property.
"TAXES" means the aggregate of any and all real property and
other taxes, metropolitan district charges, front-foot benefit assessments,
special assessments and other taxes or public
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or private assessments or charges levied against any or all of the tax parcel
containing the Premises, including but not limited to any such charges
imposed under any private covenants encumbering the title to any or all of
the Property, and regardless of whether any of the same are ordinary or
extraordinary, foreseen or unforeseen, recurring or nonrecurring, or special
or general.
"TENANT" means the Person hereinabove named as such and its
successors and permitted assigns hereunder.
"TENANT'S PROPORTIONATE SHARE" (a) means the percentage assigned
to the Premises for purposes of allocating Operating Costs and Taxes to the
Premises (and the rest of the net rentable spaces within the Property), and (b)
as of the Effective Date shall be FOUR AND THREE HUNDREDTHS (4.03%) PERCENT.
"TERM" means the Original Term.
"TERMINATION DAMAGES" has the meaning given it in subsection
17.3.
"TERMINATION DATE" has the meaning given it in subsection 3.1.
"TRANSFER" has the meaning given it in subsection 14.1.
1.2. OTHER TERMS. Any other term to which meaning is
expressly given in this Lease shall have such meaning.
2. PREMISES; MEASUREMENT. The Landlord hereby leases to the
Tenant, and the Tenant hereby leases from the Landlord, the Premises in "AS
IS, WHERE IS" condition (subject, however, to the Landlord's obligations set
forth in subsection 10.1), together with the right to use, in common with
others, the Common Areas. The rentable area of the Premises shall be
reasonably determined by the Landlord.
3. TERM.
3.1. ORIGINAL TERM: RENT COMMENCEMENT DATE. This Lease shall be
for a term (the "ORIGINAL TERM") commencing on the Effective Date and ending at
11:59 p.m. on the Thirty Sixth (36th) anniversary of the first day of the month,
in which the Rent Commencement Date shall occur (which date is hereinafter
referred to as the "TERMINATION DATE"). Monthly rent payments and additional
rent shall commence on December 1, 1997 (which date is hereinafter referred to
as the "RENT COMMENCEMENT DATE").
3.2. CONFIRMATION OF COMMENCEMENT AND TERMINATION. The Landlord
and the Tenant at the Landlord's option and request after (a) the Rent
Commencement Date or (b) the expiration of the Term or any earlier termination
of this Lease by action of law or in any other manner, shall confirm in writing
by instrument in recordable form that, respectively, such rent commencement or
such termination has occurred, setting forth therein, respectively, the Rent
Commencement Date and the Termination Date.
3.3. SURRENDER. The Tenant, at its expense at the expiration
of the Term or any earlier termination of this Lease, shall (a) promptly
surrender to the Landlord possession of the Premises (including any fixtures
or other improvements which are owned by the Landlord) in good order and
repair (ordinary wear and tear excepted) and broom clean, (b) remove
therefrom all signs, goods, effects, machinery, fixtures and equipment used
in conducting the Tenant's trade or business which are neither part of the
Building Service Equipment nor owned by the Landlord, and (c) repair any
damage caused by such removal.
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3.4. HOLDING OVER. If the Tenant continues to occupy the
Premises after the expiration of the Term or any earlier termination of this
Lease after obtaining the Landlord's express, written consent thereto, then:
(a) such occupancy (unless the parties hereto otherwise
agree in writing) shall be deemed to be under a month-to-month tenancy, which
shall continue until either party hereto notifies the other in writing, at least
one month before the end of any calendar month, that the notifying party elects
to terminate such tenancy at the end of such calendar month, in which event such
tenancy shall so terminate;
(b) anything in this section to the contrary
notwithstanding, the Rent payable for each monthly period shall equal the sum
of (a) one-twelfth (1/12) of that amount which is equal to twice the Base
Rent for the Lease Year during which such expiration of the Term or
termination of this Lease occurs, plus (b) the Additional Rent payable under
subsection 4.2; and
(c) except as provided herein, such month-to-month
tenancy shall be on the same terms and subject to the same conditions as
those set forth in this Lease; provided, however, that if the Landlord gives
the Tenant, at least one month before the end of any calendar month during
such month-to-month tenancy, written notice that such terms and conditions
(including any thereof relating to the amount and payment of Rent) shall,
after such month, be modified in any manner specified in such notice, then
such tenancy shall, after such month, be upon the said terms and subject to
the said conditions, as so modified.
4. RENT: SECURITY DEPOSIT. As Rent for the Premises, the Tenant
shall pay to the Landlord all of the following:
4.1. BASE RENT. An annual rent (the "BASE RENT") as follows:
Monthly Installment
Lease Year Base Rent of Base Rent
---------- --------- -------------------
One $ 8,400.00 $ 700.00
Two $10,800.00 $ 900.00
Three $12,000.00 $1,00.00
4.2. ADDITIONAL RENT. Additional rent ("ADDITIONAL RENT")
shall include any and all charges or other amounts which the Tenant is
obligated to pay to the Landlord under this Lease, other than the Base Rent.
4.3. OPERATING COSTS.
4.3.1. COMPUTATION. Within one hundred twenty (120) days
after the end of each calendar year during the Term, the Landlord shall
compute the total of the Operating Costs incurred for the Property during
such calendar year, and the Landlord shall allocate them to each separate
rentable space within the Property in proportion to the respective operating
costs percentages assigned to such spaces; provided that anything in this
subsection 4.3 to the contrary notwithstanding, whenever the Tenant and/or
any other tenant of space within the Property has agreed in its lease or
otherwise to provide any item of such services partially or entirely at its
own expense, or wherever in the Landlord's sole judgment any such significant
item of expense is not incurred with respect to or for the benefit of all of
the net rentable space
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within the Building (including but not limited to any such expense which, by
its nature, is incurred only with respect to those spaces which are
occupied), in allocating the Operating Costs pursuant to this subsection, the
Landlord shall make an appropriate adjustment, using generally accepted
accounting principles, as aforesaid, so as to avoid allocating to the Tenant
or to such other tenant (as the case may be) those Operating Costs covering
such services already being provided by the Tenant or by such other tenant at
its own expense, or to avoid allocating to all of the net rentable space
within the Building those Operating Costs incurred only with respect to a
portion thereof, as aforesaid. The Tenant shall have the right, during normal
business hours at the Landlord's offices, to review the books and records of
the Landlord with respect to the calculation of Operating Costs for the prior
Lease Year, at the Tenant's sole expense, provided (i) the Tenant provides at
least fifteen (15) days' advance written notice to the Landlord of its desire
to inspect such books and records, and (ii) such request is made within sixty
(60) days after the Operating Costs Statement is delivered by the Landlord to
the Tenant. If the Tenant does not notify the Landlord within such 60-day
period, then all sums included as Operating Costs shall be deemed acceptable
to the Tenant and thereafter the Tenant shall have no right to dispute in any
manner any sums included within Operating Costs for such prior Lease Year.
LANDLORD SHALL EXCLUDE THE FOLLOWING ITEMS FROM THE CALCULATION OF OPERATING
COSTS: JANITORIAL SERVICES AND BUILDING SECURITY.
4.3.2. PAYMENT AS ADDITIONAL RENT. Within fifteen (15) days
after demand therefor by the Landlord (with respect to each calendar year during
the Term), accompanied by a statement setting forth the Operating Costs for such
calendar year (the "OPERATING COSTS STATEMENT"), the Tenant shall pay to the
Landlord, as Additional Rent, the amount equaling Tenant's Proportionate Share
of the Operating Costs for such calendar year. IN ADDITION TO THE BASE RENT,
TENANT SHALL PAY ON A MONTHLY BASIS, AN ESTIMATED PAYMENT TOWARDS ITS OBLIGATION
FOR OPERATING COSTS. THE MONTHLY PAYMENTS SHALL BE THREE HUNDRED AND 00/00
DOLLARS ($300.00) PER MONTH.
4.3.3. PRORATION. If only part of any calendar year falls
within the Term, the amount computed as Additional Rent for such calendar year
under this subsection shall be prorated in proportion to the portion of such
calendar year falling within the Term (but the expiration of the Term before the
end of a calendar year shall not impair the Tenant's obligation hereunder to pay
such prorated portion of such Additional Rent for that portion of such calendar
year falling within the Term, which amount shall be paid on demand, as
aforesaid).
4.3.4. LANDLORD'S RIGHT TO ESTIMATE. Anything in this
subsection to the contrary notwithstanding, the Landlord, at its reasonable
discretion, may (a) make from time to time during the Term a reasonable
estimate of the Additional Rent which may become due under this subsection
for any calendar year, (b) require the Tenant to pay to the Landlord for each
calendar month during such year one twelfth (1/12) of such Additional Rent,
at the time and in the manner that the Tenant is required hereunder to pay
the monthly installment of the Base Rent for such month, and (c) increase or
decrease from time to time during such calendar year the amount initially so
estimated for such calendar year, all by giving the Tenant written notice
thereof, accompanied by a schedule setting forth in reasonable detail the
expenses comprising the Operating Costs, as so estimated. In such event, the
Landlord shall cause the actual amount of such Additional Rent to be computed
and certified to the Tenant within one hundred twenty (120) days after the
end of such calendar year. Any overpayment or deficiency in the Tenant's
payment of Tenant's Proportionate Share of Operating Costs shall be adjusted
between the Landlord and the Tenant; the Tenant shall pay the Landlord or the
Landlord shall credit to the Tenant's account (or, if such adjustment is at
the end of the Term, the Landlord shall pay to the Tenant), as the case may
be, within fifteen (15) days after such notice to the Tenant, such amount
necessary to effect such adjustment. The Landlord's failure to provide such
notice within the time prescribed above shall not relieve the Tenant of any
of its obligations hereunder.
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4.4. WHEN DUE AND PAYABLE.
4.4.1. BASE RENT. The Base Rent for any Lease Year shall be
due and payable in twelve (12) consecutive, equal monthly installments, in
advance, on the first (1st) day of each calendar month during such Lease Year.
In addition, the Base Rent for the first full calendar month shall be due and
payable upon execution of the Lease. Rent for any partial calendar month shall
be due and payable five (5) days after the Rent Commencement Date.
4.4.2. ADDITIONAL RENT. Any Additional Rent accruing to the
Landlord under this Lease, except as is otherwise set forth herein, shall be due
and payable when the installment of Base Rent next falling due after such
Additional Rent accrues and becomes due and payable, unless the Landlord makes
written demand upon the Tenant for payment thereof at any earlier time, in which
event such Additional Rent shall be due and payable at such time.
4.4.3. NO SET-OFF; LATE PAYMENT. Each such payment shall be
made promptly when due, without any deduction or setoff whatsoever, and without
demand, failing which the Tenant shall pay to the Landlord as Additional Rent,
after the fifth (5th) day after such payment remains due but unpaid, a late
charge equal to five percent (5%) of such payment which remains due but unpaid.
In addition, any payment that is not paid by the tenth (10th) day after such
payment is due shall bear interest at the rate of twelve percent (12%) per
annum. Any payment made by the Tenant to the Landlord on account of Rent may be
credited by the Landlord to the payment of any Rent then past due before being
credited to Rent currently falling due. Any such payment which is less than the
amount of Rent then due shall constitute a payment made on account thereof, the
parties hereto hereby agreeing that the Landlord's acceptance of such payment
(whether or not with or accompanied by an endorsement or statement that such
lesser amount or the Landlord's acceptance thereof constitutes payment in full
of the amount of Rent then due) shall not alter or impair the Landlord's rights
hereunder to be paid all of such amount then due, or in any other respect.
4.5. WHERE PAYABLE. The Tenant shall pay the Rent, in lawful
currency of the United States of America, to the Landlord by delivering or
mailing it to the Landlord's address which is set forth in section 20, or to
such other address or in such other manner as the Landlord from time to time
specifies by written notice to the Tenant.
4.6 TAX ON LEASE. If federal, state or local law now or
hereafter imposes any tax, assessment, levy or other charge directly or
indirectly upon (a) the Landlord with respect to this Lease or the value
thereof, (b) the Tenant's use or occupancy of the Premises, (c) the Base
Rent, Additional Rent or any other sum payable under this Lease, or (d) this
transaction, then the Tenant shall pay the amount thereof as Additional Rent
to the Landlord upon demand, unless the Tenant is prohibited by law from
doing so, in which event the Landlord at its election may terminate this
Lease by giving written notice thereof to the Tenant.
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5. TAXES.
5.1. PROPORTIONATE SHARE. The Tenant shall pay to the Landlord,
as Additional Rent, Tenant's Proportionate Share of all Taxes levied upon or
assessed against the Property. Taxes shall be adjusted on a proportionate basis
for any period which shall be less than a Tax Year.
5.2. PAYMENT. Tenant's Proportionate Share of Taxes shall be
paid by the Tenant, at the Landlord's election (i) in advance, in equal
monthly installments in such amounts as are estimated and billed for each Tax
Year by the Landlord at the commencement of the Term and at the beginning of
each successive Tax Year during the Term, each such installment being due on
the first day of each calendar month or (ii) in a lump sum, following the
Landlord's receipt of the tax xxxx for the Tax Year in question, and
calculation of Tenant's Proportionate Share with respect thereto. If the
Landlord has elected that the Tenant pay Tenant's Proportionate Share of
Taxes in installments, in advance, then, at any time during a Tax Year, the
Landlord may re-estimate Tenant's Proportionate Share of Taxes and thereafter
adjust the Tenant's monthly installments payable during the Tax Year to
reflect more accurately Tenant's Proportionate Share of Taxes. Within one
hundred twenty (120) days after the Landlord's receipt of tax bills for each
Tax Year, the Landlord will notify the Tenant of the amount of Taxes for the
Tax Year in question and the amount of Tenant's Proportionate Share thereof.
Any overpayment or deficiency in the Tenant's payment of Tenant's
Proportionate Share of Taxes for each Tax Year shall be adjusted between the
Landlord and the Tenant; the Tenant shall pay the Landlord or the Landlord
shall credit to the Tenant's account (or, if such adjustment is at the end of
the Term, the Landlord shall pay the Tenant), as the case may be, within
fifteen (15) days after such notice to the Tenant, such amount necessary to
effect such adjustment. The Landlord's failure to provide such notice within
the time prescribed above shall not relieve the Tenant of any of its
obligations hereunder.
5.3. TAXES ON RENT. In addition to Tenant's Share of Increased
Taxes, the Tenant shall pay to the appropriate agency any sales, excise and
other tax (not including, however, the Landlord's income taxes) levied, imposed
or assessed by the State of Maryland or any political subdivision thereof or
other taxing authority upon any Rent payable hereunder. The Tenant shall also
pay, prior to the time the same shall become delinquent or payable with penalty,
all taxes imposed on its inventory, furniture, trade fixtures, apparatus,
equipment, leasehold improvements installed by the Tenant or by the Landlord on
behalf of the Tenant and any other property of the Tenant.
6. USE OF PREMISES AND COMMON AREAS.
6.1 NATURE OF USE. The Tenant shall use the Premises only for
GENERAL OFFICES AND PHOTO COPY SHOP. Blueprinting or the use
of the diazo printing process will not be allowed on the Premises.
6.2 COMPLIANCE WITH LAW AND COVENANTS. The Tenant, throughout
the Term and
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at its sole expense, in its use and possession of the Premises, shall:
(a) comply promptly and fully with (i) all laws, ordinances,
notices, orders, rules, regulations and requirements of all federal, state
and municipal governments and all departments, commissions, boards and
officers thereof, including but not limited to The Americans with
Disabilities Act, 42 U.S.C. Section 12101 et. seq., and the ADA Disability
Guidelines promulgated with respect thereto, and (ii) all requirements (Y) of
the National Board of Fire Underwriters (or any other body now or hereafter
constituted exercising similar functions) which are applicable to any or all
of the Premises, or (Z) imposed by any policy of insurance covering any or
all of the Premises and required by section 5 to be maintained by the Tenant,
and (iii) all covenants and restrictions which may encumber the title to any
or all of the Premises, all if and to the extent that any of such
requirements relate to any or all of the Premises or to any equipment,
pipes, utilities or other parts of the Property which exclusively serve the
Premises, whether any of the foregoing are foreseen or unforeseen, or are
ordinary or extraordinary;
(b) (without limiting the generality of the foregoing
provisions of this subsection) keep in force throughout the Term all
licenses, consents and permits necessary for the lawful use of the Premises
for the purposes herein provided;
(c) pay when due all personal property taxes, income taxes,
license fees and other taxes assessed, levied or imposed upon the Tenant or
any other person in connection with the operation of its business upon the
Premises or its use thereof in any other manner;
(d) not obstruct, annoy or interfere with the rights of other
tenants, and
(e) not allow the transmission of any loud or objectionable
sounds or noises or vibration from Tenants copy machines from the Premises; and
(f) be responsible for the security of the Premises.
With respect to The Americans with Disabilities Act and the ADA Disability
Guidelines thereto, the Tenant shall be responsible for the entire Premises,
including all entry doors and signage (subject, however, to the provisions of
subsection 10.2), and the Landlord shall be responsible for the Building and
the Common Areas.
6.3 MECHANICS' LIENS.
6.3.1. Without limiting the generality of the foregoing
provisions of this section, the Tenant shall not create or permit to be
created, and if created shall discharge or have released, any mechanics' or
materialmens' lien arising while this Lease is in effect and affecting any or
all of the Premises, the Building and/or the Property, and the Tenant shall
not permit any other matter or thing whereby the Landlord's estate, right and
interest in any or all of the Premises, the Building and/or the Property
might be impaired. The Tenant shall defend, indemnify and hold harmless the
Landlord against and from any and all liability, claim of liability or
expense (including but not limited to that of reasonable attorneys' fees)
incurred by the Landlord on account of any such lien or claim.
6.3.2. If the Tenant fails to discharge any such lien within
fifteen (15) days after it first becomes effective against any of the
Premises, the Building and/or the Property, then, in addition to any other
right or remedy held by the Landlord on account thereof, the Landlord may (a)
discharge it by paying the amount claimed to be due or by deposit or bonding
proceedings, and/or (b) in any such event compel the prosecution of any
action for the foreclosure of any such lien by the lienor and pay the amount
of any judgment in favor of the lienor with interest, costs and allowances.
The Tenant shall reimburse the
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Landlord for any amount paid by the Landlord to discharge any such lien and all
expenses incurred by the Landlord in connection therewith, together with
interest thereon at the rate of twenty percent (20%) per annum from the
respective dates of the Landlord's making such payments or incurring such
expenses (all of which shall constitute Additional Rent).
6.3.3. Nothing in this Lease shall be deemed in any way (a) to
constitute the Landlord's consent or request, express or implied, that any
contractor, subcontractor, laborer or materialmen provide any labor or materials
for any alteration, addition, improvement or repair to any or all of the
Premises, the Building and/or the Property, or (b) to give the Tenant any right,
power or authority to contact for or permit to be furnished any service or
materials, if doing so would give rise to the filing of any mechanics' or
materialmens' lien against any or all of the Premises, the Building and/or the
Property, or the Landlord's estate or interest therein, or (c) to evidence the
Landlord's consent that the Premises, the Building and/or the Property be
subjected to any such lien.
6.4. SIGNS. The Tenant shall have no right to erect signs upon the
Premises or the remainder of the Building or the Property unless the Landlord
has given its express, written consent thereto, which consent shall not be
unreasonably withheld. Tenant shall be permitted to place it's business name on
the canopy in front of the Premises and/or the glass portion of the entry door
to the Premises, LANDLORD SHALL CONTRIBUTE A NOT TO EXCEED AMOUNT OF THREE
($300.00) DOLLARS TOWARDS THE REPLACEMENT OF THE FABRIC PORTION OF THE CANOPY AT
THE FRONT DOOR OF THE PREMISES AND THE PRINTING OF THE TENANT'S NAME ON THE
CANOPY. Tenant's sign is subject to Landlord's approval.
6.5. LICENSE.
6.5.1. GRANT OF LICENSE. The Landlord hereby grants to the
Tenant a non-exclusive license to use (and to permit it's officers,
directors, agents, employees and invitees to use), in the course of
conducting business at the Premises, those areas and facilities of the
Property which may be designated by the Landlord from time to time as common
areas (portions of which may from time to time be relocated and/or
reconfigured by the Landlord in its sole discretion so long as reasonable
access to and from the Premises is maintained) (the "COMMON AREAS"), which
Common Areas include footways, sidewalks, Parking Areas, lobbies, elevators,
stairwells, corridors, restrooms and certain exterior areas on the Property,
subject, however, to the Rules and Regulations. "PARKING AREAS" shall mean
those portions of the Common Areas which from time to time are designated by
the Landlord for the parking of the automobiles and other automotive vehicles
while engaged in business upon the Premises (other than while being used to
make deliveries to and from the Premises). The Landlord hereby reserves the
right to determine the hours during which tenants may use lobbies, elevators,
stairwells, corridors and the like.
6.5.2. NON-EXCLUSIVE LICENSE. Such license shall be
exercised in common with exercise thereof by the Landlord, the other tenants
or occupants of the Property, and their respective officers, directors,
agents, employees and invitees.
6.5.3. PARKING AREAS; CHANGES. The Landlord reserves the
right to change the entrances, exits, traffic lanes, boundaries and locations
of the Parking Areas, IF APPLICABLE. All Parking Areas and facilities which
may be furnished by the Landlord in or near the Property, including any
employee parking areas, truckways, loading docks, pedestrian sidewalks and
ramps, landscaped areas and other areas and improvements which may be
provided by the Landlord for the Tenant's exclusive use or for general use,
in common with other tenants, their officers agents, employees and visitors,
shall at all times be subject to the Landlord's exclusive control and
management, and the Landlord shall have the right from time to time to
establish, modify and enforce reasonable rules and regulations with respect
thereto. The Landlord shall have the right to (a) police the Common Areas,
(b) establish and from time to time to change the level of parking
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surfaces, (c) close all or any portion of the Common Areas to such extent as,
in the opinion of the Landlord's counsel, may be legally sufficient to
prevent a dedication thereof or the accrual of any rights to any person or to
the public therein, (d) close temporarily all or any portion of the Parking
Areas, (e) discourage non-tenant parking, and (f) do and perform such other
acts in and to the Common Areas as, in the use of good business judgment, the
Landlord determines to be advisable with a view to the improvement of the
convenience and use thereof by tenants, their officers, agents, employees and
visitors. The Tenant shall cause its officers, agents and employees to park
their automobiles only in such areas as the Landlord from time to time may
designate by written notice to the Tenant as employee parking areas, and the
Tenant shall not use or permit the use of any of the Common Areas in any
manner which will obstruct the driveways or throughways serving the Parking
Areas or any other portion of the Common Areas allocated for the use of
others. The Tenant shall not keep parked vehicles on the Parking Areas
overnight.
6.5.4. ALTERATIONS. The Landlord reserves the right at any
time and from time to time (i) to change or alter the location, layout,
nature, or arrangement of the Common Areas or any portion thereof, including
but not limited to the arrangement and/or location of entrances, passageways,
doors, corridors, stairs, lavatories, elevators, parking areas, and other
public areas of the Building, and (ii) to construct additional improvements
on the Property and make alterations thereof or additions thereto and build
additional stories on or in any such buildings adjoining the same; provided,
however, that no such change or alteration shall deprive the Tenant of access
to the Premises.
6.5.5. USE OF COMMON AREAS.
(a) The Landlord shall at all times have full and exclusive
control, management and direction of the Common Areas. Without limiting the
generality of the foregoing, the Landlord shall have the right to maintain and
operate lighting facilities on all of the Common Areas and to police the Common
Areas.
(b) The Tenant shall keep the sidewalks and service areas
adjacent to the Premises swept and free from trash, rubbish, garbage and other
refuse.
(c) The Tenant shall maintain in a neat and clean
condition that area designated by the Landlord as the refuse collection area,
and shall not place or maintain anywhere within the Property, other than
within the area which may be designated by the Landlord from time to time as
such refuse collection area, any trash, garbage or other items, except as may
otherwise be expressly permitted by this Lease; provided, however, that in
the event there is no room in the refuse collection area for the Tenant's
trash, the Landlord shall notify the Tenant thereof and the Tenant shall be
required to make its own arrangements for the removal of its trash from the
Premises.
(d) In its use of the Common Areas, the Tenant shall not
take, or permit its agents, employees, invitees, visitors and guests to take,
any of the following actions:
(i) the parking or storage of automobiles, or other
automotive vehicles anywhere within the Property if such vehicles lack
current, valid license plates, or other than in the Parking Areas (and the
individual parking spaces from time to time designated therein), or anywhere
within the Property if the body, windows or other exterior portions of such
vehicles are in an obvious state of damage or disrepair;
(ii) the performance of any body work, maintenance
or other repairs to vehicles, or the painting of any vehicle, anywhere within
the Premises or the rest of the Property; or
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(iii) the parking or storage of any trucks or vans
weighing over three-quarters (3/4) of one ton, except for purposes of temporary
loading and unloading.
6.6. LIABILITY OF LANDLORD. The Landlord and its agents and
employees shall not be liable to the Tenant or any other person whatsoever
(a) for any injury to person or damage to property caused by any defect in or
failure of equipment, pipes, wiring or broken glass, or the backing up of
any drains, or by gas, water, steam, electricity or oil leaking, escaping or
flowing into the Premises, or (b) for any loss or damage that may be
occasioned by or through the acts or omissions of any other tenant of the
Property or of any other person whatsoever, other than the gross negligence
of the Landlord's duly authorized employees or agents.
6.7. FLOOR LOAD. The Tenant shall not place a load upon any
floor of the Premises exceeding the floor load per square foot area which
such floor was designed to carry. The Landlord reserves the right to
prescribe the weight and position of all sales and other heavy equipment, and
to prescribe the reinforcing necessary, if any, which in the opinion of the
Landlord may be required under the circumstances, such reinforcing to be at
the Tenant's sole expense. Business machines and mechanical equipment shall
be placed and maintained by the Tenant in settings sufficient in the
Landlord's judgment to absorb and prevent vibration and noise, and the Tenant
shall, at its sole expense, take such steps as the Landlord may direct to
remedy any such condition.
6.8. HAZARDOUS MATERIALS. The Tenant warrants and agrees
that the Tenant shall not cause or permit any Hazardous Material to be
brought upon, kept or used in or about the Premises by the Tenant, its
agents, employees, contractors or invitees. If the Tenant breaches the
obligations stated in the preceding sentence, then the Tenant shall
indemnify, defend and hold the Landlord harmless from and against any and all
claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, diminution in value of the Premises, the
Building and the Property generally, damages for the loss or restriction on
use of rentable or usable space or of any amenity of the Building or the
Property generally, damages from any adverse impact on marketing of space in
the Building, and sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees) which arise during or after the Term as a
result of such contamination. This indemnification of the Landlord by the
Tenant includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any governmental authority because of Hazardous
Material present in the soil or ground water or under the Premises or the
Property generally. As used herein (i) "ENVIRONMENTAL LAWS" means the Clean
Air Act, the Resource Conservation Recovery Act of 1976, the Hazardous
Material Transportation Act, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Resource Conservation and
Recovery Act, the Toxic Substances Control Act, the Occupational Safety and
Health Act, the Consumer Product Safety Act, the Clean Water Act, the Federal
Water Pollution Control Act, the National Environmental Policy Act, Md. Nat.
Res. Code Xxx., Title 8, and Md. Env. Code Xxx., Title 7, as each of the
foregoing shall be amended from time to time, and any similar or successor
laws, federal, state or local, or any rules or regulations promulgated
thereunder, and (ii) "HAZARDOUS MATERIALS" means and includes asbestos; "oil,
petroleum products and their by-products" "hazardous substances;" "hazardous
wastes" or "toxic substances," as those terms are used in Environmental Laws;
or any substances or materials listed as hazardous or toxic in the United
State Department of Transportation, or by the Environmental Protection Agency
or any successor agency under any Environmental Laws.
7. INSURANCE AND INDEMNIFICATION.
7.1. INSURANCE. At all times from and after the earlier of
(i) the entry by the Tenant into the Premises, or (ii) the Rent Commencement
Date, the Tenant shall take out and keep in full force and effect, at its
expense:
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(a) commercial general liability insurance, including
Blanket Contractual Liability, Broad Form Property Damage, Completed
Operations/Products Liability, Personal Injury Liability, Premises Medical
Payments, Interest of Employees as additional insureds, Incidental Medical
Malpractice and Broad Form General Liability Endorsement, with a combined
single limit of not less than One Million Dollars ($1,000,000) per occurrence
and Two Million Dollars ($2,000,000) in the aggregate;
(b) special form property insurance (including but not
limited to burglary and theft insurance and plate glass insurance) written at
full replacement cost value with endorsement covering all of Tenant's
property, including, without limitation, inventory, trade fixtures, floor
coverings, furniture, electronic data processing, equipment and any other
property removable by Tenant under the provisions of this Lease, except for
improvements which are part of the Landlord's Work;
(c) worker's compensation or similar insurance in form and
amounts required by law; and
(d) such other insurance in such types and amounts as Landlord
may reasonably require.
7.2. TENANT'S CONTRACTOR'S INSURANCE. The Tenant shall require any
contractor of the Tenant performing work in, on or about the Premises to take
out and keep in full force and effect, at no expense to the Landlord:
(a) commercial general liability insurance, including
Contractor's Liability coverage, Blanket Contractual Liability coverage,
Broad Form Property Damage Endorsement, Contractor's Protective Liability,
Completed Operations/Products Liability (Completed Operations/Products
Liability coverage to be provided for at least two (2) years after final
completion of work). Personal Injury, Premises Medical Payments, Interest of
Employees as additional insureds, Incidental Medical Malpractice and Broad
Form General Liability Endorsement, in an amount not less than One Million
Dollars ($1,000,000) combined single limit per occurrence and Two Million
Dollars ($2,000,000) in the aggregate;
(b) comprehensive automobile liability insurance, with a
combined single limit of not less than One Million Dollars ($1,000,000)
covering all owned, non-owned or hired automobiles to be used by the
contractor;
(c) worker's compensation or similar insurance in form and
amounts required by law; and
(d) employers liability coverage, including All States
Endorsement, in an amount not less than One Million Dollars ($1,000,000).
7.3. POLICY REQUIREMENTS.
7.3.1. The company or companies writing any insurance which
the Tenant is required to take out and maintain or cause to be taken out or
maintained pursuant to subsections 7.1 and/or 7.2, as well as the form of
such insurance, shall at all times be subject to the Landlord's approval, and
any such company or companies shall be licensed to do business in the State
of Maryland and have a rating of at least A or better and a financial size
rating of XII or larger from BEST'S KEY RATING GUIDE AND SUPPLEMENTAL SERVICE
(or comparable rating from a comparable insurance rating service). Public
liability and all-risk casualty insurance policies evidencing such insurance
shall name the Landlord, Valley Management Group, Inc. and
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their designees (including, without limitation, any Mortgagee) as additional
insureds, shall be primary and noncontributory, and shall also contain a
provision by which the insurer agrees that such policy shall not be
cancelled, materially changed, terminated or not renewed except after thirty
(30) days' advance written notice to the Landlord and/or such designees. All
such policies, or certificates thereof, shall be deposited with the Landlord
promptly upon commencement of the Tenant's obligation to procure the same.
None of the insurance which the Tenant is required to carry and maintain or
cause to be carried or maintained pursuant to subsections 7.1 and/or 7.2
shall contain deductible provisions in excess of Two Thousand Five Hundred
Dollars ($2,500), unless approved in writing in advance by the Landlord. If
the Tenant fails to perform any of its obligations pursuant to this section
7, the Landlord may perform the same and the cost thereof shall be payable by
the Tenant as Additional Rent upon the Landlord's demand therefor.
7.3.2. The Landlord and the Tenant agree that on
January 1 of the second (2nd) full calendar year during the Term and on
January 1 of every second (2nd) calendar year thereafter, the Landlord will
have the right to request commercially reasonable changes in the character
and/or amounts of insurance required to be carried by the Tenant pursuant to
the provisions of this section 7, and the Tenant shall comply with any
requested change in character and/or amount within thirty (30) days after the
Landlord's request therefor.
7.4 INDEMNITIES BY TENANT AND LANDLORD.
7.4.1. Notwithstanding any policy or policies of
insurance required of the Tenant, the Tenant, for itself and its successors
and assigns, to the extent permitted by law, shall defend, indemnify and hold
harmless the Landlord, the Landlord's agents, Valley Management Group, Inc.
and any Mortgagee against and from any and all liability or claims of
liability by any person asserted against or incurred by the Landlord and/or
such agent or Mortgagee in connection with (i) the use, occupancy, conduct,
operation or management of the Premises by the Tenant or any of its agents,
contractors, servants, employees, licensees, concessionaires, suppliers,
materialmen or invitees during the Term; (ii) any work or thing whatsoever
done or not done on the Premises during the Term; (iii) any breach or
default in performing any of the obligations under the provisions of this
Lease and/or applicable law by the Tenant or any of its agents, contractors,
servants, employees, licensees, suppliers, materialmen or invitees during the
Term; (iv) any negligent, intentionally tortuous or other act or omission by
the Tenant or any of its agents, contractors, servants, employees, licensees,
concessionaires, suppliers, materialmen or invitees during the Term; or (v)
any injury to or death of any person or any damage to any property occurring
upon the Premises (whether or not such event results from a condition
existing before the execution of this Lease or resulting in the termination
of this Lease), and from and against all costs, expenses and liabilities
incurred in connection with any claim, action, demand, suit at law, in equity
or before any administrative tribunal, arising in whole or in part by reason
of any of the foregoing (including, by way of example rather than of
limitation, the fees of attorneys, investigators and experts), all regardless
of whether such claim, action or proceeding is asserted before or after the
expiration of the Term or any earlier termination of this Lease.
7.4.2. If any such claim, action or proceeding is
brought against the Landlord and/or any agent or Mortgagee, the Tenant, if
requested by the Landlord or such agent or Mortgagee, and at the Tenant's
expense, promptly shall resist or defend such claim, action or proceeding or
cause it to be resisted or defended by an insurer. The Landlord, at its
option, shall be entitled to participate in the selection of counsel,
settlement and all other matters pertaining to such claim, action or
proceeding, all of which shall be subject, in any case, to the prior written
approval of the Landlord.
7.4.3. Subject to the provisions of subsection 7.8, the
Landlord hereby agrees for itself and its successors and assigns to indemnify
and save the Tenant harmless from and against any liability or claims of
liability arising solely out of the gross negligence or intentional acts and
omissions of
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the Landlord, its agents or employees.
7.5. LANDLORD NOT RESPONSIBLE FOR ACTS OF OTHERS. The
Landlord shall not be responsible or liable to the Tenant, or to those
claiming by, through or under the Tenant, for any loss or damage which may be
occasioned by or through the acts or omissions of persons occupying or using
space adjoining the Premises or any part of the premises adjacent to or
connecting with the Premises or any other part of the Building or the
Property, or for any loss or damage resulting to the Tenant (or those
claiming by, through or under the Tenant) or its or their property, from (a)
the breaking, bursting, stoppage or leaking of electrical cable and/or wires,
or water, gas, sewer or steam pipes, (b) falling plaster, or (c) dampness,
water, rain or snow in any part of the Building. To the maximum extent
permitted by law, the Tenant agrees to use and occupy the Premises, and to
use such other portions of the Property as the Tenant is herein given the
right to use, at the Tenant's own risk.
7.6. LANDLORD'S INSURANCE. During the Term, the Landlord may
maintain, in commercially reasonable amounts, (a) Insurance on the Property
against loss or damage by fire and all of the hazards included in the
extended coverage endorsement, (b) comprehensive liability and property
damage insurance with respect to the Common Areas, against claims for
personal injury or death, or property damage suffered by others occurring in,
on or about the Property, and (c) any other insurance, in such form and in
such amounts as are deemed reasonable by the Landlord, including, without
limitation, rent continuation and business interruption insurance, theft
insurance and workers' compensation, and boiler and machinery insurance. The
costs and expenses of any and all insurance carried by the Landlord pursuant
to the provisions of this subsection 6.6 shall be deemed a part of Operating
Costs.
7.7. INCREASE IN INSURANCE PREMIUMS. The Tenant shall not do
or suffer to be done, or keep or suffer to be kept, anything in, upon or
about the Premises, the Building or the Property which will contravene the
Landlord's policies of hazard or liability insurance or which will prevent
the Landlord from procuring such policies from companies acceptable to the
Landlord. If anything done, omitted to be done, or suffered by the Tenant to
be kept in, upon or about the Premises, the Building or the Property shall
cause the rate of fire or other insurance on the Premises, the Building or
the Property to be increased beyond the minimum rate from time to time
applicable to the Premises or to any such other property for the use or uses
made thereof, the Tenant shall pay to the Landlord, as Additional Rent, the
amount of any such increase upon the Landlord's demand therefor.
7.8. WAIVER OF RIGHT OF RECOVERY. To the extent that any
loss or damage to the Premises, the Building the Property, any building,
structure or other tangible property, or resulting loss of income, are
covered by insurance, neither party shall be liable to the other party or to
any insurance company insuring the other party (by way of subrogation or
otherwise), even though such loss or damage might have been occasioned by the
negligence of such party, its agents or employees; provided, however, that
if, by reason of the foregoing waiver, either party shall be unable to obtain
any such insurance, then such waiver shall be deemed not to have been made by
such party. Notwithstanding the foregoing, in the event that such waiver of
subrogation shall not be available to the Tenant except through the payment
of additional premium therefor, the Tenant shall pay such additional premium.
8. UTILITIES.
8.1. UTILITIES PROVIDED BY TENANT. The Tenant shall; (i) make
application in the Tenant's own name for all utilities not provided by the
Landlord, (ii) comply with all utility company regulations for such
utilities, including requirements for the installation of meters, and (iii)
obtain such utilities directly from, and pay for the same when due directly
to the applicable utility company. The term "utilities" for purposes
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hereof shall include but not be limited to electricity, gas, water, sewer,
steam, fire protection, telephone and other communication and alarm services,
HVAC, and all taxes or other charges thereon. The Tenant shall install and
connect all equipment and lines required to supply such utilities to the
extent not already available at or serving the Premises, or at the Landlord's
option shall repair, alter or replace any such existing items. The Tenant
shall maintain, repair and replace all such items, operate the same, and keep
the same in good working order and condition. The Tenant shall not install
any equipment or fixtures, or use the same, so as to exceed the safe and
lawful capacity of any utility equipment or lines serving the same. The
installation, alteration, replacement and connection of any utility equipment
and lines shall be subject to the requirements for alterations of the
Premises set forth in subsection 10.3. The Tenant shall ensure that all HVAC
equipment is installed and operated at all times in a manner to prevent roof
leaks, damage, and noise due to vibrations or improper installation,
maintenance or operation. The Tenant shall at all times keep the Premises
sufficiently heated or air conditioned such that heated or chilled air is not
drawn to or from the Premises.
8.2 UTILITIES PROVIDED BY LANDLORD. The Landlord reserves
the right from time to time to provide any or all utilities to the Premises.
In such case, the Tenant shall pay such charges as the Landlord may establish
from time to time, which the Landlord may determine on a per-square-foot
basis applicable to the square footage of the Premises as a monthly charge,
or which the Landlord may determine based on the quantity of utilities used
or consumed at the Premises on a monthly or other regular basis. Such charges
shall not exceed the rates, if any, that the Landlord is permitted to charge
pursuant to applicable law. In addition, if the Landlord establishes charges
based on consumption or use: (i) such charges shall not be in excess of the
rate that the Tenant would be charged directly by the utility company serving
the general area in which the Property is located, (ii) if the Premises are
separately metered for such utilities, the Tenant shall pay for amounts of
such utilities based on such meters, and (iii) if the Premises are not
separately metered for such utilities, the Tenant shall pay for amounts of
such utilities based on the reasonable estimates of the Landlord's engineer
or consultant, or, at the Landlord's election, shall pay the Landlord's cost
for installing separate meters, and shall thereafter pay based on such
meters. Except to the extent prohibited by applicable law, the Landlord may
also impose a reasonable administrative charge to cover meter-reading and
other overhead expenses. All such charges shall be payable as Additional Rent
ten (10) days after billed by the Landlord. The Landlord may discontinue
providing any utilities then being provided by the Landlord upon fifteen (15)
days' advance written notice to the Tenant (in which case the Tenant shall
obtain such utilities directly from the applicable utility company). If the
Landlord supplies ventilated air or chilled or heated air or water for
air-conditioning or heating of the Premises, the Landlord may nevertheless
require that the Tenant, at the Tenant's expense, maintain, repair and
replace any portion of the systems and equipment therefor exclusively serving
the Premises, including without limitation any air handling equipment,
ductwork and lines. THE TENANT SHALL PAY FOR IT'S SHARE OF THE ELECTRICITY,
WHICH SHALL BE AT TWO TIMES THE TENANT'S PROPORTIONATE SHARE, WHICH SHALL BE
EIGHT AND SIX HUNDREDTHS PERCENT (8.06%).
8.3 INTERRUPTIONS. The Landlord does not warrant that any
utilities provided by any utility company or the Landlord will be free from
shortages, failures, variations or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, inability to obtain
services, fuel, steam, water or supplies, governmental requirements or
requests, or other causes beyond the Landlord's reasonable control. None of
the same shall be deemed an eviction or disturbance of the Tenant's use and
possession of the Premises or any part thereof, or render the Landlord liable
to the Tenant for abatement of Rent, or relieve the Tenant from performance
of the Tenant's obligations under this Lease. The Landlord in no event shall
be liable for damages by reason of such shortage, failure or variation,
including without limitation loss of profits, business interruption or other
incidental or consequential damages.
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9. REPAIRS AND MAINTENANCE.
9.1 LANDLORD'S DUTY TO MAINTAIN STRUCTURE. The Landlord
shall maintain or cause to be maintained in good operating condition the
structure of the Building and shall be responsible for structural repairs to
the exterior walls, load bearing elements, foundations, roofs, structural
columns and structural floors with respect thereto, and the Landlord shall
make all required repairs thereto, provided, however, that if the necessity
for such repairs shall have arisen, in whole or in part, from the negligence
or willful acts or omissions of the Tenant, its agents, concessionaires,
officers, employees, licensees, invitees or contractors, or by any unusual
use of the Premises by the Tenant, then the Landlord may collect the cost of
such repairs, as Additional Rent, upon demand.
9.2 TENANT'S DUTY TO MAINTAIN PREMISES.
9.2.1 Except as provided in subsection 9.1, the Tenant
shall keep and maintain the Premises and all fixtures, equipment, light
fixtures and bulbs, doors (including, but not limited to, entrance doors,
patio doors and balcony doors), door hardware, carpeting, floor and wall
tiles, window and door glass, security systems, ventilation fans, window and
door treatments (including, but not limited to, blinds, shades, screens and
curtains), plumbing fixtures and drains, ceiling tiles and grids, counters,
shelving, light switches, base cove and moldings, locks, bathroom and kitchen
equipment and appliances (including, but not limited to, tissue dispensers,
handrails, mirrors, cabinets, disposals, dishwashers, sinks, faucets, drinking
fountains and water purifiers) located therein in a good, safe, clean and
sanitary condition consistent with the operation of a first-class office
building, and in compliance with all legal requirements with respect thereto.
Except as provided in subsection 9.1, all injury, breakage and damage to the
Premises (and to any other part of the Building and/or the Property, if
caused by any act or omission of the Tenant, its agents, concessionaires,
officers, employees, licensees, invitees or contractors) shall be repaired or
replaced by the Tenant at its expense. The Tenant shall keep and maintain all
pipes and conduits and all mechanical, electrical and plumbing systems
contained within the Premises in good, safe, clean and sanitary condition,
shall make all required repairs thereto, shall maintain a contract with a
licensed and qualified contractor to provide semiannual preventive
maintenance for the HVAC system and shall provide evidence from time to time
that such contract is in full force and effect, see Rider Number ONE. In the
event the Landlord agrees, upon request by the Tenant, to repair or maintain
any of the items listed in this subsection 9.2.1, the Tenant shall pay all
costs and expenses in connection with the Landlord's repair or maintenance
services, including, but not limited to, wages, materials and mileage
reimbursement.
9.2.2. The Tenant shall keep the Premises in a neat,
clean and orderly appearance to a standard of cleanliness and hygiene
reasonably satisfactory to the Landlord. The Tenant also shall maintain the
Premises free of all pests. The Tenant shall (a) surrender the Premises at
the expiration of the Term or at such other time as the Tenant may vacate the
Premises in as good condition as when received, except for (i) ordinary wear
and tear, (ii) damage by casualty (other than such damage by casualty which
is caused, in whole or in part, by the negligence or willful act or omissions
of the Tenant, its agents, officers, employees, licensees, invitees or
contractors and which is not wholly covered by the Landlord's hazard
insurance policy), or (iii) acts of God, and (b) take care not to overload the
electrical wiring serving the Premises or located within the Premises.
10. IMPROVEMENTS
10.1. BY LANDLORD. The Landlord shall not make improvements
to the Premises. The Premises hereby leased are leased to Tenant in it's
current "AS IS/WITH ALL FAULTS" condition, except as may be specifically
stated in EXHIBIT C (THE "LANDLORDS WORK").
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10.2. LANDLORD APPROVAL. The Tenant shall not make any
alteration, improvement or addition (collectively "ALTERATIONS") to the
Premises without first (a) presenting to the Landlord plans, drawn and sealed
by a licensed architect or space planner of a reasonable scale and amount of
detail to clarify the work to be done, and specifications, therefor and
obtaining the Landlord's written consent thereto (which shall not, in the
case of (i) non-structural interior Alterations, or (ii) Alterations which
would not affect any electrical, mechanical, plumbing or other Building
systems, be unreasonably withheld so long as such Alterations will not
violate applicable law or the provisions of this Lease, or impair the value
of the Premises, the Building or the rest of the Property or be visible from
the exterior of the Building) and (b) obtaining any and all governmental
permits or approvals for such Alterations, which are required by applicable
law; provided, that (i) any and all contractors or workmen performing such
Alterations must first be approved by the Landlord, (ii) all work is
performed in a good and workmanlike manner in compliance with all applicable
codes, rules, regulations and ordinances, and (iii) all persons, contractors,
tradesman or xxxxxxx performing such improvements or alteration work shall be
a licensed tradesman for the type of work they are doing on the property,
evidence of which shall be submitted to the Landlord prior to the
commencement of the work and (iv) the Tenant shall restore the Premises to
its condition immediately before such Alterations were made, free of Tenants
fixtures and furniture by not later than the date on which the Tenant vacates
the Premises or the Termination Date, whichever is earlier, with the
exception of all Landlord approved partitions. The Tenant, at its own
expense, shall repair promptly any damage to the Building caused by bringing
therein any property for its use, or by the installation or removal of such
property, regardless of fault or by whom such damage is caused. As a further
condition for approving any such Alterations, the Landlord shall have the
right to require the Tenant and/or its contractor(s) to execute a copy of the
Landlord's "Contractor Policies and Procedures."
10.3 ACCEPTANCE OF POSSESSION. The Tenant shall for all
purposes of this Lease be deemed to have accepted the Premises and the
Building and to have acknowledged them to be in the condition called for
hereunder.
10.4 FIXTURES. Any and all improvements, repairs,
alterations and all other property attached to, used in connection with or
otherwise installed within the Premises by the Landlord or the Tenant shall
become the Landlord's property, without payment therefor by the Landlord,
immediately on the completion of their installation; provided that any
machinery, equipment or fixtures installed by the Tenant and used in the
conduct of the Tenant's trade or business (rather than to service the
Premises, the Building or the Property generally) and not part of the
Building Service Equipment shall remain the Tenant's property; but further
provided that if any leasehold improvements made by the Tenant replaced any
part of the Premises, such leasehold improvements that replaced any part of
the Premises shall be and remain the Landlord's property.
11. LANDLORD'S RIGHT OF ENTRY. The Landlord and its authorized
representatives shall be entitled to enter the Premises at any reasonable
time during the Tenant's usual business hours, after giving the Tenant at
least twenty-four (24) hours' oral or written notice thereof, (a) to inspect
the Premises, (b) to exhibit the Premises (i) to any existing or prospective
purchaser or Mortgagee thereof, or (ii) to any prospective tenant thereof,
provided that in doing so the Landlord and each such invitee observes all
reasonable safety standards and procedures which the Tenant may require, and
(c) to make any repair thereto and/or to take any other action therein which
the Landlord is permitted to take by this Lease or applicable law (provided,
that in any situation in which, due to an emergency or otherwise, the
Landlord reasonably believes the physical condition of the Premises, the
Building or any part of the Property would be unreasonably jeopardized unless
the Landlord were to take such action immediately, the Landlord shall not be
required to give such notice to the Tenant and may enter the same at any
time). Nothing in this section shall be deemed to impose any duty on the
Landlord to make any such repair or take any such action, and the Landlord's
performance thereof shall not constitute a waiver of the Landlord's right
hereunder to have the Tenant perform such work. The Landlord shall not in any
event be liable to the Tenant for any inconvenience,
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annoyance, disturbance, loss of business or other damage sustained by the Tenant
by reason of the making of such repairs, the taking of such action or the
bringing of materials, supplies and equipment upon the Premises during the
course thereof, and the Tenant's obligations under this Lease shall not be
affected thereby.
12. DAMAGE OR DESTRUCTION.
12.1. OPTION TO TERMINATE. If during the Term either the Premises
or any portion of the Building or the Property are substantially (meaning more
than 33% of the floor area of either) damaged or destroyed by fire or other
casualty, the Landlord shall have the option (which it may exercise by giving
written notice thereof to the Tenant within sixty (60) days after the date on
which such damage or destruction occurs) to terminate this Lease as of the date
specified in such notice (which date shall not be earlier than the thirtieth
(30th) day after such notice is given). On such termination, the Tenant shall
pay to the Landlord all Base Rent, Additional Rent and other sums and charges
payable by the Tenant hereunder and accrued through such date (as justly
apportioned to the date of such termination). If the Landlord does not terminate
this Lease pursuant to this section, the Landlord shall restore the Premises as
soon thereafter as is reasonably possible to their condition on the date of
completion of the Landlord's Work, taking into account any delay experienced by
the Landlord in recovering the proceeds of any insurance policy payable on
account of such damage or destruction and in obtaining any necessary permits.
Until the Premises are so repaired, the Base Rent (and each installment thereof)
and the Additional Rent shall xxxxx in proportion to the floor area of so much,
if any, of the Premises as is rendered substantially unusable by the Tenant by
such damage or destruction.
12.2. NO TERMINATION OF LEASE. Except as is otherwise expressly
permitted by subsection 12.1. no total or partial (meaning less than 33% of the
floor area) damage to or destruction of any or all of the Premises shall
entitle either party hereto to surrender or terminate this Lease, or shall
relieve the Tenant from its liability hereunder to pay in full the Base Rent,
any Additional Rent and all other sums and charges which are otherwise payable
by the Tenant hereunder, or from any of its other obligations hereunder, and the
Tenant hereby waives any right now or hereafter conferred upon it by statute or
otherwise, on account of any such damage or destruction, to surrender this
Lease, to quit or surrender any or all of the Premises, or to have any
suspension, diminution, abatement or reduction of the Base Rent or any
Additional Rent or other sum payable by the Tenant hereunder.
13. CONDEMNATION.
13.1. TERMINATION OF LEASE. If any or all of the Premises and/or
of that portion of the Property underlying the Premises is taken by the
exercise of any power of eminent domain or is conveyed to or at the direction
of any governmental entity under a threat of any such taking (each of which is
herein referred to as a "CONDEMNATION"), this Lease shall terminate on the date
on which the title to so much of the Premises as is the subject of such
Condemnation vests in the condemning authority, unless the parties hereto
otherwise agree in writing. If all or any substantial portion of the Building or
the Property other than that portion thereof underlying the Premises is taken or
conveyed in a Condemnation, the Landlord shall be entitled, by giving written
notice thereof to the Tenant, to terminate this Lease on the date on which the
title to so much thereof as is the subject of such Condemnation vests in the
condemning authority. If this Lease is not terminated pursuant to this
subsection, the Landlord shall restore any of the Premises damaged by such
Condemnation substantially to its condition immediately before such
Condemnation, as soon after the Landlord's receipt of the proceeds of such
Condemnation as is reasonably possible under the circumstances.
13.2. CONDEMNATION PROCEEDS. Regardless of whether this Lease is
terminated under this section, the Tenant shall have no right in any such
Condemnation to make any claim on account
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thereof against the condemning authority, except that the Tenant may make a
separate claim for the Tenant's moving expenses and the value of the Tenant's
trade fixtures, provided that such claim does not reduce the sums otherwise
payable by the condemning authority to the Landlord. Except as aforesaid, the
Tenant hereby (a) waives all claims which it may have against the Landlord or
such condemning authority by virtue of such Condemnation, and (b) assigns to the
Landlord all such claims (including but not limited to all claims for leasehold
damages or diminution in value of the Tenant's leasehold interest hereunder).
13.3. EFFECT ON RENT. If this Lease is terminated under this
section, any Base Rent, any Additional Rent and all other sums and charges
required to paid by the Tenant hereunder shall be apportioned and paid to the
date of such termination. If this Lease is not so terminated in the event of a
Condemnation, the Base Rent (and each installment thereof) and the Additional
Rent shall be abated from the date on which the title to so much, if any, of the
Premises as is the subject of such Condemnation vests in the condemning
authority, through the Termination Date, in proportion to the floor area of such
portion of the Premises as is the subject of such Condemnation.
13.4. NO TERMINATION OF LEASE. Except as otherwise expressly
provided in this section, no total or partial Condemnation shall entitle either
party hereto to surrender or terminate this Lease, or shall relieve the Tenant
from its liability hereunder to pay in full the Base Rent, any Additional Rent
and all other sums and charges which are otherwise payable by the Tenant
hereunder, or from any of its other obligations hereunder, and the Tenant hereby
waives any right now or hereafter conferred upon it by statute or otherwise, on
account of any such Condemnation, to surrender this Lease, to quit or surrender
any or all of the Premises, or to receive any suspension, diminution, abatement
or reduction of the Base Rent or any Additional Rent or other sum payable by the
Tenant hereunder.
14. ASSIGNMENT AND SUBLETTING.
14.1. LANDLORD'S CONSENT REQUIRED. The Tenant shall not assign
this Lease, in whole or in part, nor sublet all or any part of the Premises, nor
license concessions or lease departments therein, nor otherwise permit any other
person to occupy or use any portion of the Premises (collectively, a
"TRANSFER"), without in each instance first obtaining the written consent of the
Landlord, which consent will not be unreasonably withheld or delayed, provided
that, among other things as reasonably required by Landlord, the net worth and
financial condition of the proposed assignee or transferee is the same or better
than that of the Tenant on the effective date hereof, in Landlord's sole
discretion. This prohibition includes any subletting or assignment which would
otherwise occur by operation of law, merger, consolidation, reorganization,
transfer or other change of the Tenant's corporate or proprietary structure
(including, without limitation, the transfer of partnership interests, the
creation of additional partnership interests or the transfer of corporate shares
or beneficial interests), or an assignment or subletting to or by a receiver or
trustee in any federal or state bankruptcy, insolvency or other similar
proceedings. Consent by the Landlord to any assignment, subletting, licensing or
other transfer shall not (i) constitute a waiver of the requirement for such
consent to any subsequent assignment, subletting, licensing or other Transfer,
(ii) relieve the Tenant from its duties, responsibilities and obligations under
the Lease, or (iii) relieve any guarantor of this Lease from such guarantor's
obligations under its guaranty agreement.
14.2. TRANSFER, ISSUANCE OF CORPORATE SHARES; CREATION OF
PARTNERSHIP INTERESTS. If the Tenant (or any general partner of the Tenant, or
any guarantor of the Tenant) is a corporation (other than a corporation the
outstanding voting stock of which is listed on a "national securities exchange,"
as defined in the Securities Exchange Act of 1934), or a general or limited
partnership or a limited liability company, the Tenant shall give the Landlord
notice with fifteen (15) days following the date upon which (i) additional
voting stock is issued by the Tenant or by any such general partner or guarantor
or member of Tenant, or any part or all of the corporate shares of the Tenant or
any such general partner or guarantor or member is
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Transferred, or (ii) additional partnership or member interests are created by
the Tenant or by any such guarantor, general partner or member, or any part or
all of the partnership or member interests of the Tenant or of any such
guarantor are Transferred, by sale, assignment, pledge, bequest, inheritance,
operation of law or otherwise. In the event of a Transfer and whether or not
the Tenant has given such notice, the Landlord may elect, in the Landlord's sole
discretion, to deem such Transfer to be an Event of Default hereunder, thereby
entitling the Landlord to all of the rights and remedies set forth in section
17.
14.3. ACCEPTANCE OF RENT FROM TRANSFEREE. The acceptance by the
Landlord of the payment of Rent from any person following any act, assignment or
other Transfer prohibited by this section shall not constitute a consent to such
act, assignment or other Transfer, nor shall the same be deemed to be a waiver
of any right or remedy of the Landlord's hereunder.
14.4. CONDITIONS OF CONSENT.
14.4.1. If the Tenant receives consent to a Transfer under
subsection 14.1 above, then, in addition to any other terms and conditions
imposed by the Landlord in the giving of such consent, the Tenant and the
transferee shall execute and deliver, on demand, an agreement prepared by the
Landlord providing that the transferee shall be directly bound to the Landlord
to perform all obligations of the Tenant hereunder including, without
limitation, the obligation to pay all Rent and other amounts provided for
herein; acknowledging and agreeing that there shall be no subsequent Transfer of
this Lease or of the Premises or of any interest therein without the prior
consent of the Landlord pursuant to subsection 14.1 above; acknowledging that
the Tenant as originally named herein shall remain fully liable for all
obligations of the tenant hereunder, including the obligation to pay all Rent
provided herein and including any and all obligations arising out of any
subsequent amendments to this Lease made between the Landlord and the transferee
(whether or not consented to by the Tenant), jointly and severally with the
transferee; and such other provisions as the Landlord shall require.
14.4.2. All costs incurred by the Landlord in connection
with any request for consent to a Transfer, including costs of investigation and
the fees of the Landlord's counsel, shall be paid by the Tenant on demand as a
further condition of any consent which may be given.
14.5. PROFITS FROM USE OR TRANSFER.
14.5.1. Neither the Tenant nor any other person having an
interest in the use, occupancy or other utilization of space in the Premises
shall enter into any lease, sublease, license, concession or other Transfer
which provides for rent or other payment for such use, occupancy or utilization
based in whole or in part on the net income or profits derived from the
Premises, and any such purported lease, sublease, license, concession or other
Transfer shall be absolutely void and ineffective as a conveyance or creation of
any right or interest in the possession, use, occupancy or utilization of any
part of the Premises.
14.5.2. The Tenant agrees that in the event of a Transfer,
the Tenant shall pay the Landlord, within ten (10) days after receipt thereof,
one hundred percent (100%) of the excess of (i) any and all consideration, money
or thing of value, however characterized, received by the Tenant or payable to
the Tenant in connection with or arising out of such Transfer, over (ii) all
amounts otherwise payable by the Tenant to the Landlord pursuant to this Lease.
15. RULES AND REGULATIONS. The Landlord shall have the right to
prescribe, at its sole discretion, reasonable rules and regulations (the "RULES
AND REGULATIONS") having uniform applicability to all tenants of the Property
(subject to their respective leases) and governing their use and enjoyment of
the
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Property; provided, that the Rules and Regulations shall not materially
interfere with the Tenant's use and enjoyment of the Premises in accordance with
this Lease for the purposes listed in subsection 6.1. The Rules and Regulations
may govern, without limitation, the use of sound apparatus, noise or vibrations
emanating from machinery or equipment, obnoxious fumes and/or odors, the parking
of vehicles, lighting and storage and disposal of trash and garbage. The Tenant
shall adhere to the Rules and Regulations and shall cause its agents, employees,
invitees, visitors and guests to do so. A copy of the Rules and Regulations in
effect on the date hereof is attached hereto as EXHIBIT D. The Landlord shall
have the right to amend the Rules and Regulations from time to time.
16. SUBORDINATION AND ATTORNMENT.
16.1. SUBORDINATION.
16.1.1. Unless a Mortgagee otherwise shall elect as provided
in subsection 15.2, the Tenant's rights under this Lease are and shall remain
subject and subordinate to the operation and effect of any mortgage, deed of
trust or other security instrument constituting a lien upon the Premises, and/or
the Property, whether the same shall be in existence on the date hereof or
created hereafter (any such lease, mortgage, deed of trust or other security
instrument being referred to herein as a "MORTGAGE," and the party or parties
having the benefit of the same, whether as beneficiary, trustee or noteholder,
being referred to hereinafter collectively as "MORTGAGEE"). The Tenant's
acknowledgment and agreement of subordination as provided for in this section is
self-operative and no further instrument of subordination shall be required;
however, the Tenant shall execute, within ten (10) days after request therefor,
a document providing for such further assurance thereof and for such other
matters as shall be requisite or as may be requested from time to time by the
Landlord or any Mortgagee.
16.1.2. The Landlord hereby directs the Tenant, upon (i)
the occurrence of any event of default by the Landlord, as mortgagor under
any Mortgage, (ii) the receipt by the Tenant of a notice of the occurrence of
such event of default under such Mortgage from the Landlord or such
Mortgagee, or (iii) a direction by the Mortgagee under such Mortgage to the
Tenant to pay all Rent thereafter to such Mortgagee, to make such payment to
such Mortgagee, and the Landlord agrees that in the event that the Tenant
makes such payments to such Mortgagee, as aforesaid, the Tenant shall not be
liable to the Landlord for the same.
16.2. MORTGAGEE'S UNILATERAL SUBORDINATION. If a Mortgagee shall
so elect by notice to the Tenant or by the recording of a unilateral declaration
of subordination, this Lease and the Tenant's rights hereunder shall be superior
and prior in right to the Mortgage of which such Mortgagee has the benefit, with
the same force and effect as if this Lease had been executed, delivered and
recorded prior to the execution, delivery and recording of such Mortgage,
subject, nevertheless, to such conditions as may be set forth in any such
notice or declaration.
16.3. ATTORNMENT. If any Person shall succeed to all or any part
of the Landlord's interest in the Premises, whether by purchase, foreclosure,
deed in lieu of foreclosure, power of sale, termination of lease or otherwise
and if such successor-in-interest requests or requires, the Tenant shall attorn
to such successor-in-interest and shall execute within ten (10) days after
receipt thereof an agreement in confirmation of such attornment in a form as may
be reasonably requested by such successor-in-interest. Failure to respond
within such (10) day period shall be deemed to be a confirmation by the Tenant
of the facts and matters set forth therein.
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17. DEFAULTS AND REMEDIES.
17.1. "EVENT OF DEFAULT" DEFINED. Any one or more of the
following events shall constitute a default under the terms of this Lease
("EVENT OF DEFAULT"):
(a) the failure of the Tenant to pay any Rent or other sum
of money due hereunder to the Landlord or any other person, within five (5) days
after the same is due;
(b) the sale of the Tenant's interest in the Premises under
attachment, execution or similar legal process without the Landlord's prior
written approval;
(c) the filing of a petition proposing the adjudication of
the Tenant as a bankrupt or insolvent, or the reorganization of the Tenant, or
an arrangement by the Tenant with its creditors, whether pursuant to the Federal
Bankruptcy Act or any similar federal or state proceeding, unless such petition
is filed by a party other than the Tenant and is withdrawn or dismissed within
sixty (60) days after the date of its filing;
(d) the admission in writing by the Tenant of its inability
to pay its debts when due;
(e) the appointment of a receiver or trustee for the
business or property of the Tenant, unless such appointment is vacated within
sixty (60) days of its entry;
(f) the making by the Tenant of an assignment for the
benefit of its creditors;
(g) a default by the Tenant in the performance or
observance of any covenant or agreement of this Lease to be performed or
observed by the Tenant (other than as set forth in clauses (a) through (f)
above), which default is not cured within thirty (30) days after the giving of
written notice thereof by the Landlord, unless such default is of such nature
that it cannot be cured within such 30-day period, in which event an Event of
Default shall not be deemed to have occurred if the Tenant institutes a cure
within the 30-day period and thereafter diligently and continuously prosecutes
the curing of the same until completion, but in no event shall such cure period
exceed ninety (90) days; provided, however, that if the Tenant defaults in the
performance of any such covenant or agreement more than two (2) times during the
Term, then notwithstanding that such defaults have each been cured by the
Tenant, any further defaults shall be deemed an Event of Default without the
ability to cure; or
(h) the vacating or abandonment of the Premises by the
Tenant at any time during the Term.
17.2 LANDLORD'S REMEDIES. Upon the occurrence of an Event of
Default, the Landlord, without notice to the Tenant in any instance (except
where expressly provided for below), may do any one or more of the following:
(a) perform, on behalf and at the expense of the Tenant,
any obligation of the Tenant under this Lease which the Tenant has failed to
perform beyond any applicable grace or cure periods and of which the Landlord
shall have given the Tenant notice (except in an emergency situation in which no
notice is required), the cost of which performance by the Landlord, together
with interest thereon at the rate of fifteen percent (15%) per annum from the
date of such expenditure, shall be deemed Additional
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Rent and shall be payable by the Tenant to the Landlord as otherwise set forth
herein;
(b) elect to terminate this Lease and the tenancy created
hereby by giving notice of such election to the Tenant without any right on the
part of the Tenant to save the forfeiture by payment of any sum due or by other
performance of condition, term, agreement or covenant broken, or elect to
terminate the Tenant's possessory rights and all other rights of the Tenant
without terminating this Lease, and in either event, at any time thereafter
without notice or demand and without any liability whatsoever, re-enter the
Premises by force, summary proceedings or otherwise, and remove the Tenant and
all other persons and property from the Premises, and store such property in a
public warehouse or elsewhere at the cost and for the account of the Tenant
without resort to legal process and without the Landlord being deemed guilty of
trespass or becoming liable for any loss or damage occasioned thereby;
(c) accelerate the Rent and any other charges, whether or
not stated to be Additional Rent, for the entire balance of the Term, or any
part of such Rent, and any costs, whether chargeable to the Landlord or the
Tenant, as if by the terms of this Lease the balance of the Rent and other
charges and expenses were on that date payable in advance.
(d) cause an attorney for the Landlord to proceed in any
competent court for judgment in ejectment against the Tenant and all persons
claiming under the Tenant for the recovery by the Landlord of possession of the
Premises, and if for any reason after such action has been commenced it is
canceled or suspended and possession of the Premises remains in or is restored
to the Tenant, the Landlord shall have the right upon any subsequent default or
upon the expiration or termination of this Lease, or any renewal or extension
hereof, to bring one or more actions to recover possession of the Premises; and
(e) exercise any other legal and/or equitable right or
remedy which it may have at law or in equity, including rights of specific
performance and/or injunctive relief, where appropriate.
In any action for possession of the Premises or for monetary damages,
including Termination Damages and Liquidated Damages, or for the recovery of
Rent due for the balance of the Term, the Landlord may cause to be filed in such
action an affidavit setting forth the facts necessary to authorize the entry of
judgment. If a true copy of this Lease (and of the truth of the copy, such
affidavit shall be sufficient proof) must be filed in such action, it shall not
be necessary to file the original, notwithstanding any law, rule of court,
custom or practice to the contrary.
17.3. DAMAGES
(a) If this Lease is terminated by the Landlord pursuant to
subsection 17.2, the Tenant nevertheless shall remain liable for any Rent and
damages which may be due or sustained prior to such termination, as well as all
reasonable costs, fees and expenses, including, without limitation, sheriffs' or
other officers' commissions whether chargeable to the Landlord or the Tenant,
watchmen's wages, brokers' and attorneys' fees, and repair and renovation costs
incurred by the Landlord in pursuant of its remedies hereunder, and/or in
connection with any bankruptcy proceedings of the Tenant, and/or in connection
with renting the Premises to others from time to time (all such Rent, damages,
costs, fees and expenses being referred to herein as "TERMINATION DAMAGES"),
plus additional damages for all Rent treated as in arrears ("LIQUIDATED
DAMAGES"). At the election of the Landlord, Termination Damages shall be an
amount equal to either.
(i) the Rent which, but for the termination of this
Lease, would have become due during the remainder of the Term, less the amount
or amounts of rent, if any, which the Landlord receives during such period from
others to whom the Premises may be rented (other than any
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additional rent received by the Landlord as a result of any failure of such
other person to perform any of its obligations to the Landlord), in which case
Termination Damages shall be computed and payable in monthly installments, in
advance, on the first business day of each calendar month following the
termination of this Lease and shall continue until the date on which the Term
would have expired but for such termination, and any action or suit brought to
collect any such Termination Damages for any month shall not in any manner
prejudice the right of the Landlord to collect any Termination Damages for any
subsequent months by similar proceeding; or
(ii) the present worth (as of the date of such
termination) of the Rent which, but for the termination of this Lease, would
have become due during the remainder of the Term, less the fair rental value of
the Premises, as determined by an independent real estate appraiser or broker
selected by the Landlord, in which case such Termination Damages shall be
payable to the Landlord in one lump sum on demand, and shall bear interest at
the rate of fifteen percent (15%) per annum. "Present worth" shall be computed
by discounting such amount to present worth at a rate equal to one percentage
point above the discount rate then in effect at the Federal Reserve Bank.
(b) Notwithstanding anything to the contrary set forth in
this subsection 17.3, in the event (i) the Landlord must initiate legal action
to enforce any one or more of the provisions of this Lease against the Tenant,
its successors or assigns, or (ii) the Landlord must consult with and/or engage
an attorney(s) in order (A) to enforce any one or more of the provisions of this
Lease against the Tenant, its successors or assigns, or (B) in connection with
any bankruptcy proceeding of the Tenant, whether or not such consultation and/or
engagement results in the initiation of any judicial action or termination of
this Lease, then and in any of such events, the Tenant, its successors and
assigns, undertakes and agrees to pay any and all reasonable costs incurred by
the Landlord in connection therewith, including, by way of illustration and not
of limitation, all reasonable attorneys' fees (inclusive of consultation fees,
research costs and correspondence fees), court costs (if awarded post-judgment)
and any similar professional fees or costs associated therewith.
17.4. WAIVER OF JURY TRIAL. Each party hereto hereby waives any
right which it may otherwise have at law or in equity to a trial by jury in
connection with any suit or proceeding at law or in equity brought by the other
against the waiving party or which otherwise relates to this lease, as a result
of an event of default or otherwise. The Tenant further agrees that in the
event the Landlord commences any summary proceeding for nonpayment of rent or
possession of the Premises, the Tenant will not, and hereby waives, all right to
interpose any counterclaim of whatever nature in any such proceeding.
17.5. LANDLORD'S SECURITY INTEREST. In addition to any lien for
Rent available to the Landlord, the Landlord shall have, and the Tenant hereby
grants to the Landlord, a continuing security interest for all Rent and other
sums of money becoming due hereunder from the Tenant, upon all the Tenant's
accounts receivable, inventory, equipment and all other personal property
located on the Premises. If an Event of Default occurs, the Landlord shall
have, in addition to any other remedies provided herein or by law, all of the
rights and remedies afforded to secured parties under the Uniform Commercial
Code, as codified in Maryland ("the U.C.C."), including but not limited to (a)
the right to sell the Tenant's said property at public or private sale upon ten
(10) days' notice to the Tenant, and (b) the right to take possession of such
property without resort to judicial process in accordance with the provisions of
Section 9-503 of the U.C.C. The Tenant, on its receipt of a written request
therefor from the Landlord, shall execute such financing statements and other
instruments as are necessary or desirable, in the Landlord's judgment, to
perfect such security interest.
17.6 CONFESSION OF JUDGMENT. If any Event of Default occurs which
is not cured within any applicable grace period provided herein, the Tenant and
any guarantor of any of the Tenant's obligations hereunder hereby authorizes and
empowers any attorney of any court of record within the United
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States to appear for the Tenant and any such guarantor or any one or more of
them in any court in one or more proceedings or before any clerk thereof, and
confess judgment against the Tenant and each such guarantor without prior
notice, or opportunity for prior hearing, in favor of the Landlord for all
unpaid Rent and other sums due hereunder, hereby waiving and releasing, to the
extent permitted by law, all errors and all rights of exemption, appeal, stay of
execution, inquisition and extension upon any levy on real estate or personal
property to which the Tenant or any such guarantor may otherwise be entitled
under the laws of the United States or of any state or possession of the United
States now in force or which may hereafter be passed. Such authority and power
may be exercised on one or more occasions, from time to time, in the same or
different jurisdictions, as often as the Landlord deems necessary or desirable,
for all of which this Lease shall be a sufficient warrant.
18. ESTOPPEL CERTIFICATE. The Tenant shall, without charge, at
any time and from time to time, within ten (10) days after receipt of request
therefor from the landlord, execute, acknowledge and deliver to the Landlord,
and to such Mortgagee or other party as may be designated by the Landlord, a
written estoppel certificate in form and substance as may be requested from time
to time by the Landlord, the other party or any Mortgagee, certifying to the
other party, any Mortgagee, any purchaser of Landlord's interest in all or any
part of the Property, or any other person or entity designated by the other
party, as of the date of such estoppel certificate, the following: (a) whether
the Tenant is in possession of the Property; (b) whether this Lease is in full
force and effect; (c) whether there are any amendments to this Lease, and if so,
specifying such amendments; (d) whether there are any then-existing setoffs or
defenses against the enforcement of any rights hereunder, and if so, specifying
such matters in detail; (e) the dates, if any, to which any rent or other sums
due hereunder have been paid in advance and the amount of any security deposit
held by the Landlord; (f) that the Tenant has no knowledge of any then-existing
defaults of the Landlord under this Lease, or if there are such defaults,
specifying them in detail; (g) that the Tenant has no knowledge of any event
having occurred that authorized the termination of this Lease by the Tenant, or
if such event has occurred, specifying it in detail; (h) the address to which
notices to the Tenant should be sent; and (i) any and all other matters
reasonably requested by the Landlord, any Mortgagee and/or any other person or
entity designed by the Landlord. Any such estoppel certificate may be relied
upon by the person or entity to whom it is directed or by any other person or
entity who could reasonably be expected to rely on it in the normal course of
business. The failure of the Tenant to execute, acknowledge and deliver such a
certificate in accordance with this section within fifteen (15) days after a
request therefor by the Landlord shall constitute an acknowledgment by the
Tenant, which may be relied on by any person or entity who would be entitled to
rely upon any such certificate, that such certificate as submitted by the
requesting party to the other party is true and correct, and the requesting
party is hereby authorized to so certify.
19. QUIET ENJOYMENT. The Landlord hereby warrants that, so long
as all of the Tenant's obligations hereunder are timely performed, the Tenant
will have during the Term quiet and peaceful possession of the Premises and
enjoyment of such rights as the Tenant may hold hereunder to use the Common
Areas, except if and to the extent that such possession and use are terminated
pursuant to this Lease. The Tenant hereby acknowledges that it has examined the
Premises, the title thereto, the zoning thereof, the streets, sidewalks, parking
areas, curbs and access ways adjoining them, any surface and subsurface
conditions thereof, and the present uses and nonuses thereof, if any, and that
it accepts each of them in its present condition or state, without restriction,
representation, covenant or warranty, express or implied, in fact or at law, by
the Landlord or any other person, and without recourse to the Landlord, as to
the title thereto, any encumbrances thereon, any appurtenances thereto, the
nature, condition or usability thereof, or the uses to which any or all of the
Premises may be put.
20. NOTICES. Except as may be otherwise provided in this Lease,
any notice, demand, consent, approval, request or other communication or
document to be provided hereunder to the Landlord or
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the Tenant (a) shall be in writing, and (b) shall be deemed to have been
provided (i) two (2) days following the date sent as certified mail in the
United States mails, postage prepaid, return receipt requested, (ii) on the day
following the date it is deposited prior to the close of business with FedEx or
another national courier service or (iii) on the date of hand delivery (if such
party's receipt thereof is acknowledged in writing), in each case to the address
of such party set forth hereinbelow or to such other address as such party may
designate from time to time by notice to each other party hereto.
If to the Landlord, notice shall be sent to:
The Xxxxxx Xxxxxxx Company
000 Xxx Xxxxx Xxxx, #000
Xxxxxxxxx, XX 00000
All rent and other payments shall be sent to:
The Xxxxxx Xxxxxxx Company
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
If to the Tenant, notice shall be sent to:
IMTEK Corporation
0000 Xxxxxxx Xxxxxxx, #000
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxx
21. GENERAL
21.1 EFFECTIVENESS. This Lease shall become effective on
and only on its execution and delivery by each party hereto.
21.2 COMPLETE UNDERSTANDING. This Lease represents the
complete understanding between the parties hereto as to the subject matter
hereof, and supersedes all prior negotiations, representations, guaranties,
warranties, promises, statements and agreements, either written or oral, between
the parties hereto as to the same.
21.3 AMENDMENT. This Lease may be amended by and only by an
instrument executed and delivered by each party hereto, provided, however, that
the Landlord shall have the right at any time, and from time to time, during the
Term unilaterally to amend the provisions of this Lease if the Landlord (or any
of its partners) is advised by its counsel that all or any portion of the monies
paid, directly or indirectly, by the Tenant to the Landlord (and/or its
partners) hereunder are, or may be deemed to be, unrelated business income
within the meaning of the United States Internal Revenue Code or regulations
issued thereunder, and the Tenant agrees that it will execute all documents or
instruments necessary to effect such amendment or amendments, provided that no
such amendment shall result in the Tenant having to pay in the aggregate a
larger sum of money on account of its occupancy of the Premises under the terms
of this Lease as so amended, and provided further that no such amendment or
amendments shall result in the Tenant receiving under the provisions of this
Lease less services than it is entitled to receive, nor services or a lesser
quality. Furthermore, the Tenant agrees not to take any steps or actions
knowingly which may jeopardize the Landlord's (and/or its partners') tax-exempt
status.
21.4 WAIVER. No party hereto 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, without limiting the generality of the foregoing,
no delay or omission by any party hereto in exercising any such right shall be
deemed a waiver of its future
- 27 -
exercise). No such waiver made in any instance involving the exercise of any
such right shall be deemed a waiver as to any other such instance or any other
such right. Without limiting the generality of the foregoing provisions of this
subsection, the Landlord's receipt or acceptance of any Base Rent, Additional
Rent of other sum from the Tenant or any other person shall not be deemed a
waiver of the Landlord's right to enforce any of its rights hereunder on account
of any default by the Tenant in performing its obligations hereunder.
21.5 APPLICABLE LAW. This Lease shall be given effect and
construed by application of the laws of Maryland, and any action or proceeding
arising hereunder shall be brought in the courts of Maryland; provided, however,
that if any such action or proceeding arises under the Constitution, laws or
treaties of the United States of America, or if there is a diversity of
citizenship between the parties thereto, so that it is to be brought in a United
States District Court, it may be brought only in the United States District
Court for Maryland or any successor federal court having original jurisdiction.
21.6 COMMISSIONS. The parties hereto hereby acknowledge and
agree that, in connection with the leasing of the Premises hereunder, they have
used the services of XXXXXX CORPORATE REAL ESTATE SERVICES. Any and all
commissions due such brokers shall be paid in accordance with the terms and
conditions set forth in a separate written agreement or agreements between the
Landlord and XXXXXX CORPORATE REAL ESTATE SERVICES. Subject to the foregoing,
each party hereto hereby represents and warrants to the other that, in
connection with such leasing, the party so representing and warranting has not
dealt with any real estate broker, agent or finder, and there is no commission,
charge or other compensation due on account thereof. Each party hereto shall
indemnify and hold harmless the other against and from any inaccuracy in such
party's representation.
21.7 LANDLORD'S LIABILITY. No Person holding the Landlord's
interest hereunder (whether or not such Person is named as the "Landlord"
herein) shall have any liability hereunder after such Person ceases to hold such
interest, except for any such liability accruing while such Person holds such
interest. No Mortgagee not in possession of the Premises shall have any
liability hereunder. Neither the Landlord nor any principal of the Landlord,
whether disclosed or undisclosed, shall have any personal liability under this
Lease. If the Landlord defaults in performing any of its obligations hereunder
or otherwise, the Tenant shall look solely to the Landlord's equity, interest
and rights in the Property to satisfy the Tenant's remedies on account thereof.
21.8 DISCLAIMER OF PARTNERSHIP STATUS. Nothing in this
Lease shall be deemed in any way to create between the parties hereto any
relationship of partnership, joint venture or association, and the parties
hereto hereby disclaim the existence of any such relationship.
21.9. REMEDIES CUMULATIVE. No reference to any specific
right or remedy shall preclude the Landlord from exercising any other right or
from having any other remedy or from maintaining any action to which it may
otherwise be entitled at law or in equity. No failure by the Landlord to insist
upon the strict performance of any agreement, term, covenant or condition
hereof, or to exercise any right or remedy consequent upon a breach thereof, and
no acceptance of full or partial Rent during the continuance of any such breach,
shall constitute a waiver of any such breach, agreement, term, covenant or
condition. No waiver by the Landlord of any breach by the Tenant under this
Lease or of any breach by any other tenant under any other lease of any portion
of the Building shall affect or alter this Lease in any way whatsoever.
21.10. SEVERABILITY. No determination by any court,
governmental or administrative body or agency or otherwise that any provision of
this Lease or any amendment hereof is invalid or unenforceable in any instance
shall affect the validly or enforceability of (a) any other provision hereof, or
(b) such provision in any circumstance not controlled by such determination.
Each such provision shall remain valid and enforceable to the fullest extent
allowed by and shall be construed wherever possible as being consistent with,
applicable law.
21.11. AUTHORITY. If the Tenant is a corporation,
partnership, limited liability company or similar entity, the person executing
this Lease on behalf of the Tenant represents and warrants that (a) the Tenant
is duty organized and validly existing and (b) this Lease (i) has been
authorized by all necessary parties, (ii) is validly executed by an authorized
officer or agent of the Tenant and (iii) is binding upon and enforceable against
the Tenant in accordance with its terms.
21.12. JOINT AND SEVERAL LIABILITY. If the Tenant shall be
one or more individuals, corporations
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or other entities, whether or not operating as a partnership or joint
venture, then each such individual, corporation, entity, joint venturer or
partner shall be deemed to be both jointly and severally liable for the
payment of the entire Rent and other payments specified herein.
21.13. RECORDATION. Neither this Lease, any
amendment to this Lease, nor any memorandum, affidavit or other item with
respect thereto shall be recorded by the Tenant or by anyone acting through,
under or on behalf of the Tenant, and the recording thereof in violation of
this provision shall (i) be deemed an Event of Default and (ii) at the
Landlord's election, make this Lease null and void.
21.14. TIME OF ESSENCE. Time shall be of the essence
with respect to the performance of the parties' obligations under this Lease.
21.15. INTERPRETATION. The Landlord and the Tenant
hereby agree that both parties were equally influential in preparing and
negotiating this Lease, and each had the opportunity to seek the advice of legal
counsel prior to the execution of this Lease. Therefore, the Landlord and the
Tenant agree that no presumption should arise construing this Lease more
unfavorably against any one party.
21.16. HEADINGS. The headings of the sections,
subsections, paragraphs and subparagraphs hereof are provided herein for and
only for convenience of reference and shall not be considered in construing
their contents.
21.17. CONSTRUCTION. As used herein, all references
made (a) in the neuter, masculine or feminine gender shall be deemed to have
been made in all such genders; (b) in the singular or plural number shall be
deemed to have been made, respectively, in the plural or singular number as
well; and (c) to any section, subsection, paragraph or subparagraph shall be
deemed, unless otherwise expressly indicated, to have been made to such
section, subsection, paragraph or subparagraph of this Lease.
21.18. EXHIBITS. Each writing or drawing referred to
herein as being attached hereto as a schedule, an exhibit or otherwise
designated herein as a schedule or an exhibit hereto is hereby made a part
hereof.
21.19. NET LEASE. The Tenant acknowledges and agrees
that this Lease is intended to be a complete net lease to the Landlord (except
as expressly set forth herein) and that the Landlord is not responsible for any
costs, charges, expenses or outlays of any nature whatsoever arising from or
relating to the Premises, the use and occupancy thereof, or the contents
thereof. The Tenant shall pay all charges, impositions, costs and expenses of
every nature and kind relating to the Premises (except as expressly set forth
herein).
IN WITNESS WHEREOF, each party hereto has executed and ensealed this
Lease, or caused it to be executed and ensealed on its behalf by its duly
authorized representatives, on the date first above written.
WITNESS OR ATTEST: LANDLORD: THE XXXXXX XXXXXXX COMPANY
By: (SEAL)
------------------------------ ---------------------------
Xxxx X. Xxxxxxx, V.P.
WITNESS OR ATTEST: TENANT: IMTEK Corporation
/s/ Xxxxxx X. Xxxxx By:/s/ Xxxx X. Xxxxxxxx CFO (SEAL)
------------------------------ ---------------------------
Xxxx X. Xxxxxxxx CFO
67164.02
11/26/97
- 29 -
EXHIBIT "A"
000 XXXXX XXXXXX
XXXXXXXXX XXXX, XX
NOT TO SCALE
[MAP]
EXHIBIT B
DRAWING SHOWING APPROXIMATE LOCATION OF PREMISES
[MAP]
EXHIBIT C
LANDLORD'S WORK
1) Landlord shall partition the existing corridor adjacent to the existing
premises, so as to demise approximately 132 square feet as noted on the
attached plan, Exhibit C Schedule One.
2) Landlords work shall include:
a) Removal of the existing shelves and fixtures.
b) Install approximately 13 lf of demising wall.
c) Install one 3' x 6'-8" door and door frame to fire exit.
d) Install two 2' x 4' florescent light fixtures with switch.
e) Install one exit light.
e) One coat of paint, one color; on all paintable wall surfaces.
f) The floor and ceiling finish to remain as is, in the original
condition.
3) Landlord reserves the right to extend one HVAC register from the Premises
to the common area lobby adjacent to the Premises.
4) Landlord shall complete its work within 30 days of the effective date of
the Lease.
5) No other improvements shall be made by Landlord unless specifically stated
or listed herein. All additional improvements to the premises shall be
made by the Tenant at Tenants sole cost and expense and in accordance to
the terms stated in the lease.
EXHIBIT C. SCHEDULE ONE
[MAP]
EXHIBIT D
CURRENT RULES AND REGULATIONS
1. The sidewalks, passages and stairways shall not be obstructed by
the Tenant or used by the Tenant for any purpose other than ingress and
egress from and to the Tenant's premises. The Landlord shall in all cases
retain the right to control or prevent access thereto by any person whose
presence, in the Landlord's judgment, would be prejudicial to the safety,
peace, character or reputation of the Property or of any tenant of the
Property.
2. The toilet rooms, water closets, sinks, faucets, plumbing and
other services apparatus of any kind shall not be used by the Tenant for any
purpose other than those for which they were installed, and no sweepings,
rubbish, rags, ashes, chemicals or other refuse or injurious substances shall
be placed therein or used in connection therewith by the Tenant, or left by
the Tenant in the lobbies, passages, elevators or stairways of the Building.
The expense of any breakage, stoppage or damage to such sinks, toilets and
the like shall be borne by the tenant who, or whose employees, contractors or
invitees, caused it.
3. No skylight, window, door or transom of the Building shall be
covered or obstructed by the Tenant, and no window shade, blind, curtain,
screen, storm window, awning or other material shall be installed or placed
on any window or in any window space, except as approved in writing by the
Landlord. If the Landlord has installed or hereafter installs any shade,
blind or curtain in the Premises, the Tenant shall not remove it without
first obtaining the Landlord's written consent thereto which shall not be
unreasonably withheld.
4. No sign, lettering, insignia, advertisement, notice or other thing
shall be inscribed, painted, installed, erected or placed in any portion of
the Premises which may be seen from outside the Building, or on any window,
window space or other part of the exterior or interior of the Building,
unless first approved in writing by the Landlord. Names on suite entrances
may be provided by and only by the Landlord and at the Tenant's expense,
using in each instance lettering of a design and in a form consistent with the
other lettering in the Building, and first approved in writing by the
Landlord. The Tenant shall not erect any stand, booth or showcase or other
article or matter in or upon the Premises, the Building and/or the Property
without first obtaining the Landlord's written consent thereto which shall
not be unreasonably withheld.
5. The Tenant shall not place any other or additional lock upon any
door within the Premises or elsewhere upon the Property, and the Tenant shall
surrender all keys for all such locks at the end of the Term. The Landlord
shall provide the Tenant with one set of keys to the Premises when the Tenant
assumes possession thereof.
6. The Tenant shall not do or permit to be done anything which
obstructs of interferes with the rights of any other tenant of the Property.
No bird, fish or animal shall be brought into or kept in or about the
Premises, the Building and/or the Property.
7. If the Tenant desires to install signaling, telegraphic,
telephonic, protective alarm or other wires, apparatus or devices within the
Premises, the Landlord shall direct where and how they are to be installed
and, except as so directed, no installation, boring or cutting shall be
permitted. The Landlord shall have the right (a) to prevent or interrupt the
transmission of excessive, dangerous or annoying current of electricity or
otherwise into or through the Premises, the Building and/or the Property, (b)
to require the changing of wiring connections or layout at the Tenant's
expense, to the extent that the Landlord may deem necessary, (c) to require
compliance with such reasonable rules as the Landlord may establish relating
thereto, and (d) in the event of noncompliance with such requirements or
rules, immediately to cut wiring or do whatever else it considers necessary
to remove the danger, annoyance or electrical interference with apparatus in
any part of the Building and/or the Property.
8. Intentionally deleted
9. The Landlord shall in no event be responsible for admitting or
excluding any person from the Premises. In cases of invasion, hostile
attack, insurrection, mob violence, riot, public excitement or other
commotion, explosion, fire or any casualty, the Landlord shall have the right
to bar or limit access to the Property to protect the safety of occupants of
the Property, or any property within the Property.
10. The use of any area within the Property as sleeping quarters is
strictly prohibited at all times.
11. The Tenant shall keep the windows and doors of the Premises
(including those opening on corridors and all doors between rooms entitled to
receive heating or air conditioning service and rooms not entitled to receive
such service) closed while the heating or air-conditioning system is
operating, in order to minimize the energy used by, and to conserve the
effectiveness of, such systems. The Tenant shall comply with all reasonable
rules and regulations from time to time promulgated by the Landlord with
respect to such systems or their use.
12. The Landlord shall have the right to prescribe the weight and
position of inventory and of other heavy equipment or fixtures, which shall,
if considered necessary by the Landlord, stand on plank strips to distribute
their weight. Any and all damage or injury to the Property arising out of
the Tenant's equipment being on the Property shall be repaired by the Tenant
at his expense. The Tenant shall not install or operate any machinery whose
installation or operation may affect the structure of the Building without
first obtaining the Landlord's written consent thereto, and the Tenant shall
not install any other equipment of any kind or nature whatsoever which may
necessitate any change, replacement or addition to, or in the use of, the
water system, the heating system, the plumbing system, the air-conditioning
system or the electrical system of the Premises, the Building or the Property
without first obtaining the Landlord's written consent thereto. Business
machines and mechanical equipment belonging to the Tenant which cause noise
or vibration that may be transmitted to the structure of the Building, any
other buildings on the Property, or any space therein to such a degree as to
be objectionable to the Landlord or to any tenant, shall be installed and
maintained by the Tenant, at its expense, on vibration eliminators or other
devices sufficient to eliminate such noise and vibration. The Tenant shall
remove promptly from any sidewalks and other areas on the Property any of the
Tenant's furniture, equipment, inventory or other material delivered or
deposited there.
13. The Tenant shall not place or permit its agents, employees or
invitees to place any thing or material on the roof or in the gutters and
downspouts of the Building or cut, drive nails into or otherwise penetrate the
roof, without first obtaining the Landlord's written consent thereto. The
Tenant shall be responsible for any damage to the roof caused by its
employees or contractors. The Tenant shall indemnify the Landlord and hold
the Landlord harmless against expenses incurred to correct any damage to the
roof resulting from the Tenant's violation of this rule, as well as any
consequential damages to the Landlord or any other tenant of the Property.
The Landlord shall repair damage to the roof caused by the Tenant's acts,
omissions or negligence and the Tenant shall reimburse the Landlord for all
expenses incurred in making such repairs. The Landlord or its agents may
enter the Premises at all reasonable hours to make such roof repairs. If the
Landlord makes any expenditure or incurs any obligation for the payment of
money in connection therewith, including but not limited to attorneys' fees
in instituting, prosecuting or defending any action or proceeding, such sums
paid or obligations incurred, with interest at the rate of twenty percent
(20%) per annum, and costs, shall be deemed to be Additional Rent and shall
be paid by the Tenant to the Landlord within five (5) days after rendition of
any xxxx or statement to the Tenant therefor. The Tenant shall not place
mechanical or other equipment on the roof without the Landlord's prior
written consent, which shall be conditioned in part upon the Landlord's
approval of the Tenant's plans and specifications for such installations. The
costs of any roof improvements made pursuant hereto shall be borne by the
Tenant.
14. The Landlord reserves the right to institute energy management
procedures when necessary.
15. The Tenant shall assure that the doors of the Premises and closed
and locked and that all water faucets, water apparatus and utilities are shut
off before the Tenant and its employees leave the Premises each day.
16. The Landlord shall have the right to rescind, suspend or modify
these Rules and Regulations and to promulgate such other rules or regulations
as, in the Landlord's reasonable judgment, are from time to time needed for
the safety, care, maintenance, operation and cleanliness of the Building or
the Property, or for the preservation of good order therein. Upon the
Tenant's having been given notice of the taking of any such any action, the
Rules and Regulations as so rescinded, suspended, modified or promulgated
shall have the same force and effect as if in effect at the time at which the
Tenant's lease was entered into (except that nothing in the Rules and
Regulations shall be deemed in any way to alter or impair any provision of
such lease).
17. Nothing in these Rules and Regulations shall give any Tenant any
right or claim against the Landlord or any other person if the Landlord does
not enforce any of them against any other tenant or person (whether or not
the Landlord has the right to enforce them against such tenant or person),
and no such nonenforcement with respect to any tenant shall constitute a
waiver of the right to enforce them as to the Tenant or any other tenant or
person.
D-2
RIDER NUMBER ONE
HVAC MAINTENANCE AND REPAIR
This Rider is attached to and made a part of the attached lease dated
_______________, 1997 (the "Lease"), between THE XXXXXX XXXXXXX COMPANY (the
"Landlord") and IMTEK CORPORATION (the "Tenant"). All capitalized terms used
herein shall have the same meaning as such terms have in the Lease. Wherever
there is a conflict between this Rider and the Lease, this Rider shall modify
and supersede such other part of the Lease to the extent necessary to
eliminate any such conflict, but no further.
MAINTENANCE AND REPAIR OF HVAC
1) At the time Tenant takes possession of the premises, the
Heating Venting and Air Conditioning (HVAC) shall be in good working order.
Landlord shall provide a ninety day (90) warranty for the operation of the
HVAC equipment. The Tenant shall have the right to verify the condition of
the equipment at Tenant's sole cost and expense.
2) During the term of the lease or any renewal period, Tenant
shall be responsible for the maintenance and repair of the HVAC equipment
that serves the premises at Tenants sole cost and expense.
3) Tenant shall maintain in full force and effect a maintenance
contract for the HVAC equipment with a licensed and qualified HVAC technician
or contractor during the term of the lease or any renewal period. The
equipment shall be maintained a minimum of three (3) times each year. The
maintenance shall include a minimum of the following items shown on Schedule:
ONE. Tenant shall provide Landlord with a copy of the maintenance contract
upon request by Landlord.
4) The Landlord shall pay all cost for repair to the HVAC
equipment that exceeds One Thousand and 00/00 Dollars ($1,000.00) per lease
year (excluding the cost of the preventative maintenance); if and only if the
Tenant has written evidence of regular service to the equipment as described
above and if the repairs are not the result of Tenants negligence in
maintaining or operating the HVAC equipment. In the event that tenant fails
to provide written evidence of regular maintenance service or in the event of
Tenants negligence in operating the equipment, the full cost of the repairs
shall be paid by the Tenant. If the Landlord is required to make the
repairs, Landlord in its sole discretion shall have the option to repair or
replace the HVAC equipment.
IN WITNESS WHEREOF, the parties have executed this Lease Rider
Number ONE, under seal on the date first above written.
Witness Landlord
---------------------------------- ----------------------------------------
Tenant
---------------------------------- ----------------------------------------
RIDER # ONE SCHEDULE # ONE
HVAC PREVENTATIVE MAINTENANCE SCHEDULE
SPLIT SYSTEMS
ANNUAL INSPECTION - (One (1) Time Per Year)
(1) Check compressor oil level.
(2) Check operation of oil heater and thermostat.
(3) Remove oil from compressor reservoir, if required.
(4) Replace oil, and oil filter cartridge, if required.
(5) Replace refrigerant filter dryers, if applicable.
(6) Check condition of moisture indicators.
(7) Check and calibrate all safety controls.
(8) Check and calibrate all operating controls.
(9) Inspect condenser and evaporator coils for dirt and leaks.
(10) Check oil pressure and temperature.
(11) Inspect inverter contacts and electrical connections.
(12) Check operation of motor protection, if applicable.
(13) Check unloading devices.
(14) Lubricate all non-sealed bearings and shafts.
(15) Replace air filters.
PERIODIC OPERATIONAL INSPECTION - (Three (3) Times Per Year)
(1) Inspect condenser coils for cleanliness.
(2) Inspect fans for proper operation.
(3) Check amperage draw.
(4) Check controls for proper operation.
(5) Replace the air filters.
scope3
