Document/Exhibit Description Pages Size
1: 10-K Annual Report for the Year Ended 1/31/96 51 216K
2: EX-10.07 Employment Agreement, 7/20/95 W/ Edwin R.Addison 8± 43K
3: EX-10.09 Conquest Incentive Stock Option Plan, 8/19/93 5± 27K
4: EX-10.10 Office Lease/Little Patuxent Pkwy, Columbia, Md 31 175K
5: EX-10.11 Office Lease (1959 Palomar Oaks Way, Carlsbad, Ca) 30± 114K
6: EX-10.12 Office Lease (1921 Gallows Rd, Vienna, Va) 9 52K
7: EX-22.01 Subsidiaries of Excalibur Technologies Corporation 1 6K
8: EX-23.01 Consent of Arthur Andersen LLP 1 6K
9: EX-23.02 Consent of Price Waterhouse LLP 1 7K
10: EX-27 Article 5 FDS Filed With Form 10-K 1 8K
EX-10.10 — Office Lease/Little Patuxent Pkwy, Columbia, Md
Exhibit Table of Contents
MARYLAND FULL-SERVICE OFFICE LEASE
30 COLUMBIA CORPORATE CENTER
THIS LEASE is made and entered into as of the day of , 1995, by and
between COLUMBIA MALL, INC., a Maryland corporation ("Landlord") by COLUMBIA
MANAGEMENT, INC., Managing Agent, and EXCALIBUR TECHNOLOGIES CORPORATION, a
Delaware corporation ("Tenant").
In consideration of the rents hereinafter reserved and the agreements
hereinafter set forth, Landlord and Tenant mutually agree as follows:
1. SUMMARY OF TERMS.
The following is a summary of the principal terms of the Lease. Any
capitalized term set forth below shall, for the purposes of this Lease, have the
meaning ascribed to it in this Section 1.
A. DESCRIPTION OF PREMISES
(1) BUILDING: The building known as 30 Columbia Corporate Center and
located at 10440 Little Patuxent Parkway, Columbia, Maryland 21044.
(2) BUSINESS COMMUNITY: Columbia Town Center.
(3) PREMISES: Approximately 6,660 square feet of Rental Area on the
eighth floor of the Building as shown on SCHEDULE A.
B. RENT
(1) ANNUAL BASIC RENT:
TERM ANNUAL BASIC RENT MONTHLY INSTALLMENT
1/1/96-12/31/97 $113,220.00 $9,435.00
1/1/98-12/31/98 $114,885.00 $9,573.75
1/1/99-12/31/00 $116,550.00 $9,712.50
(2) ADVANCE RENT: Nine Thousand Four Hundred Thirty-five
Dollars and No Cents ($9,435.00) representing the installment of Annual Basic
Rent for the first leasehold month of the Term.
(3) SECURITY DEPOSIT: Nine Thousand Five Hundred Seventy-three
Dollars and Seventy-five Cents ($9,573.75) to be held by Landlord as provided
in Section 6.4.
C. ADJUSTMENTS.
(1) BASE OPERATING COSTS: The Base Operating Costs for the
Premises shall be the Operating Costs for the Operating Year (grossed up in
accordance with Section 7.1.) which commences January 1, 1996, multiplied by
Tenant's Fractional Share.
(2) ADJUSTMENT PERIOD CONSUMER PRICE INDEX. Intentionally
omitted.
D. TERM
(1) TERM: Five (5) years, subject to Section 4.
(2) LEASE COMMENCEMENT DATE: January 1, 1996, subject to
Section 4 and subject to satisfaction of the conditions set forth in the
"Contingency" provision in Section 34.
(3) TERMINATION DATE: December 31, 2000, subject to Section 4.
E. NOTICE AND PAYMENT
(1) Tenant Notice
Address: Excalibur
Technologies Corporation
Thirty Columbia Corporate Center
Suite 800
10440 Little Patuxent Parkway
Columbia, Maryland 21044
(2) Landlord Notice
Address: Columbia
Management, Inc.
10420 Little Patuxent Parkway
Suite 420
Columbia, Maryland 21044
with a copy to: Columbia
Management, Inc.
c/o The Rouse Company
10275 Little Patuxent Pkwy
Columbia, Maryland 21044
Attention: General Counsel
(3) Landlord Payment
Address: Columbia
Management, Inc.
P.O. Box 64385
Baltimore, Maryland 21264-4385
2
F. BROKER Mr.
David Cravedi
The Fred Ezra Company
4520 East West Highway
Bethesda, Maryland 20814
2. DEFINITIONS.
For purposes of this Lease, the Schedules attached and made a part hereof
and all agreements supplemental to this Lease, the following terms shall have
the respective meanings as set forth in the following Section, subsection,
paragraph and Schedule references:
Reference
Additional Rent..........................................................6.3
Advance Rent.........................................................1.B.(2)
Alterations.............................................................15.1
Annual Basic Rent....................................................1.B.(1)
Bankruptcy Code.........................................................19.1
Base Operating Cost..................................................1.C.(1)
Building.............................................................1.A.(1)
Casualty................................................................17.1
Common Area.............................................................10.1
Default Rate.............................................................6.5
Event of Default........................................................20.1
Event of Tenant's Bankruptcy............................................19.1
Fractional Share.........................................................7.1
Insolvency Laws.........................................................19.1
Landlord Notice Address.................................................1.E.
Landlord Payment Address................................................1.E.
Lease Commencement Date..............................................1.D.(2)
Mortgage..................................................................27
Mortgagee.................................................................27
Operating Costs..........................................................7.1
Operating Costs Statement................................................7.2
Operating Year...........................................................7.1
Plans and Specifications.................................................5.1
Premises.............................................................1.A.(3)
Prevailing Market Rate (Renewal Term)....................................4.3
Prevailing Market Rate (Expansion).........................................3
Property.................................................................7.1
Public Areas......................................................Schedule C
Ready for Occupancy......................................................4.2
Renewal Term.............................................................4.3
Rental Area................................................................3
Rental Year..............................................................6.1
Rules and Regulations......................................................9
3
Security Deposit.....................................................1.B.(3)
Tenant Improvements......................................................5.1
Tenant Notice Address...................................................1.E.
Tenant's Share of Increased Operating Costs..............................7.2
Tenant's Personal Property..............................................15.3
Term.....................................................................4.1
Termination Date.....................................................1.D.(3)
Transfer..................................................................25
3. LEASED PREMISES; MEASUREMENT; EXPANSION.
3.1. LEASED PREMISES; MEASUREMENT. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, the Premises as shown on the plan attached
hereto as SCHEDULE A, together with the right to use, in common with others, the
Common Area. The rental area of the Premises ("Rental Area") has been computed
in accordance with the applicable formula set forth in SCHEDULE X attached
hereto and made a part hereof.
Within sixty (60) days following completion of the Tenant Improvements,
either Landlord or Tenant shall have the right to remeasure the Premises in
accordance with the above formula and if such measurement shall disclose that
the Rental Area of the Premises is different from that set forth in Section 1.A.
hereof, the Annual Basic Rent and the Tenant's Fractional Share shall be
adjusted accordingly. If neither party elects to remeasure the Premises during
such sixty (60) day period, then the Rental Area set forth in Section 1.A. shall
be conclusively deemed the Rental Area of the Premises.
3.2. RIGHT OF FIRST OFFER. Subject to (i) the provisions set forth
hereinafter, (ii) the superior rights of third parties, and (iii) any renewal(s)
(whether by amendment/extension agreement or by the execution of a new lease
agreement) of the term of the lease between Landlord and Molinaro Associates,
Inc., the tenant currently occupying the Additional Premises or the term of the
Lease for the replacement tenant for Suite 870 (as hereinafter defined), Tenant
shall have a one-time right of first offer to lease from Landlord approximately
1,861 square feet of space in the Building as identified on SCHEDULE A-1 ("Suite
870"), on the same terms as contained in this Lease for the Premises, except
that the per square foot Annual Basic Rent for Suite 870 shall be equal to the
per square foot rate of Annual Basic Rent in effect for the Premises at the time
that Tenant takes occupancy of the Additional Premises, which per square foot
Annual Basic Rental shall, thereafter, be subject to the same per square foot
graduations of Annual Basic Rental set forth in Section 1.B.(1) at the times set
forth therein.
In addition, subject to (i) the provisions set forth hereinafter, (ii) the
superior rights of third parties, and (iii) the term of the Lease of the next
tenant occupying Suite 890 (as hereinafter defined), Tenant shall have a
one-time right of first offer to lease from Landlord approximately 1,465 square
feet of space in the Building as identified on SCHEDULE A-1 ("Suite 890"), on
the same terms as contained in this Lease for the Premises, except that the per
square foot Annual Basic Rent for Suite 890 shall be equal to the per square
foot rate of Annual Basic Rent in effect for the Premises at the time that
Tenant takes occupancy of Suite 890, which per square foot Annual Basic Rental
shall, thereafter, be subject to the same per square foot graduations of Annual
Basic Rental set forth in Section 1.B.(1) at the times set forth therein. Tenant
acknowledges that Suite 890 is presently vacant and Tenant declined to include
Suite 890 with the Premises and Tenant's rights herein are subject to the term
of a lease of the next tenant to occupy the space regardless of the length of
time Suite 890 is vacant before Landlord obtains a tenant.
4
Tenant agrees to accept Suite 870 and/or Suite 890 in their as-is
condition as of the date of delivery of Suite 870 and/or Suite 890 by Landlord
to Tenant and further acknowledges that Landlord is not obligated to provide any
improvements whatsoever to either Suite 870 or Suite 890.
Tenant shall exercise its right of first offer by written notice to
Landlord within fifteen (l5) days following receipt of written notice from
Landlord that Suite 870 and/or Suite 890 is available for lease. In the event
that Tenant exercises the right granted herein, Landlord and Tenant shall enter
into an amendment to this Lease to incorporate Suite 870 and/or Suite 890 and to
make necessary adjustments to the Annual Basic Rent and similarly affected
provisions of this Lease. In the event Tenant declines to exercise its right as
above provided for, or fails to deliver notice thereof within the time period
stipulated above, or fails to execute the requisite amendment to this Lease,
this right of first offer shall lapse and be of no further force and effect.
The foregoing right of first offer shall not be severed from this
Lease or separately sold, assigned or transferred and shall be subject to the
following additional conditions, namely: (a) that the lease term for any
additional space shall run concurrently with this Lease; (b) that the rental for
Suite 870 and/or Suite 890 shall be as set forth hereinabove; (c) that there
shall be no abatement of rent; (d) that, unless otherwise set forth in this
Section, Landlord shall not be obligated to construct, pay for or grant an
allowance with respect to tenant improvements; (d) that, at the time that Tenant
exercises this right of first offer for any additional space, an Event of
Default by Tenant shall not exist under this Lease; (e) that, at the time Tenant
exercises this right of first offer, Tenant shall be in occupancy and possession
of the Premises, subject to Section 25.1.; (f) that Tenant shall enter into an
amendment to this Lease to incorporate the additional space and make
corresponding modifications to the provisions of this Lease; (g) that Landlord
and Tenant shall enter into an amendment to this Lease to incorporate the
Additional Premises and make corresponding modifications to the provisions of
this Lease regarding Annual Basic Rent and Base Operating Costs; and (h) the
holders of any superior rights to the Additional Premises have not exercised
such rights.
5
4. TERM AND COMMENCEMENT OF TERM.
4.1. TERM. The Term shall be for the period of time specified in Section
1.D.(1) plus the part of the month, if any, from the Lease Commencement Date to
the first day of the first full calendar month in the Term, unless earlier
terminated pursuant to any other provision of this Lease or pursuant to law.
4.2. OPTION TO RENEW. Provided Tenant is in possession of at least fifty
percent (50%) of the Premises (subject to Section 25.1.) and is not in default
of any term, covenant or condition of this Lease, Tenant shall have one (1)
option to renew the Term of this Lease for one (1) additional period of five (5)
years ("Renewal Term") to commence immediately upon the expiration of the
initial Term , upon the same terms, covenants and conditions as contained in
this Lease, except that (i) the Annual Basic Rent during said Renewal Term shall
be at ninety-five percent (95%) of the "Prevailing Market Rate" and (ii) there
shall be no further option to renew except as specifically provided herein and
(iii) Landlord shall not be obligated to construct, pay for or grant an
allowance with respect to tenant improvements unless otherwise specifically
provided for in this Lease. "Prevailing Market Rate" shall mean the current
market rental rate for the Premises as determined by Landlord but shall not be
more than the rate at which Landlord would offer such space or space of
approximately the same size and location to a third party and shall include
concessions being offered by Landlord in the business community including rent
abatements. In no event, however, shall the Annual Basic Rent during the Renewal
Term be less than the Annual Basic Rent reserved under this Lease for the Rental
Year immediately preceding the Renewal Term for which the determination is being
made.
In order to exercise the option granted herein, Tenant shall notify
Landlord, in writing, not less than six (6) months prior to the expiration of
the initial Term that it is considering exercising its option to renew the Term.
On receipt of such notice, Landlord will, in writing, not later than thirty (30)
days after receipt of the notice from Tenant, quote to Tenant what the new
Annual Basic Rent will be for the ensuing Renewal Term. Tenant shall then notify
Landlord, in writing, not later than fifteen (15) days after notice received of
such Annual Basic Rent, as to whether or not it will exercise the option herein
granted and if no such notice of exercise of the option is received, the option
shall be deemed waived. In the event Tenant exercises the option, Landlord and
Tenant shall execute a modification to this Lease acknowledging such renewal and
setting forth the new Annual Basic Rent.
The option shall be void if, at the time of exercise of such option,
Tenant is not in possession of at least fifty percent (50%) of the Premises or
there is an Event of Default under this Lease or if Tenant fails to deliver the
requisite notice thereof within the time period specified above. The option
granted herein shall not be severed from this Lease, separately sold, assigned
or transferred.
5. TENANT IMPROVEMENTS AND ACCEPTANCE OF PREMISES.
5.1. TENANT IMPROVEMENTS. Landlord shall, at its sole expense, in a manner
agreed upon by Landlord and Tenant, perform the improvements to the Premises set
forth in the Plans and Specifications attached as or described in SCHEDULE B
hereto ("Tenant Improvements"). Landlord shall diligently pursue completion of
the construction of the Tenant Improvement and complete such construction as
soon as possible but in no event later than April 1, 1996. All materials shall
be building-standard materials unless otherwise specified in SCHEDULE B. Except
as otherwise specifically provided in this Lease, Landlord shall not be
responsible for performing or paying for the moving or installation of telephone
and computer systems, wiring or cabling, or the acquisition, moving or
installation of Tenant's furnishings, fixtures and equipment in the Premises.
6
Any other initial improvements to the Premises not shown on SCHEDULE B are
subject to Landlord's prior written approval which approval shall not
unreasonably be withheld, conditioned or delayed and such improvements shall be
performed by Landlord, the cost thereof to be paid by Tenant to Landlord within
thirty (30) days following receipt of Landlord's invoice for same. SCHEDULE B
may be modified by the parties, provided they mutually agree to (i) the
modifications to be made; (ii) the cost, if any, of the modifications; and (iii)
the manner in which any additional cost shall be paid or reflected in the rent.
Modification of the Plans and Specifications, where requested by Tenant, shall
not affect Tenant's obligation to pay rent. Any amounts payable by Tenant
hereunder shall include Landlord's standard construction management fee computed
on the total cost of construction, including but not limited to the cost of
developing, preparing and modifying construction drawings.
Landlord shall have the right to enter the Premises to construct the
Tenant Improvements, and such entry and work by Landlord, its agents, servants,
employees or contractors for such purpose shall not constitute an actual or
constructive eviction, in whole or in part, entitle Tenant to any abatement or
diminution of rent, relieve Tenant of any of its obligations under this Lease,
be deemed an interference with Tenant's right to peaceful and quiet enjoyment of
the Premises, or impose any liability upon Landlord or its agents, employees or
contractors except for damage caused by its negligence or willful misconduct.
Landlord shall use all reasonable efforts not to disrupt Tenant during such
period of construction.
In the event the Tenant Improvements are not completed on or before April
1, 1996, subject to the provisions of Section 24 and except for delays caused by
Tenant, Tenant shall have the right, with notice to Landlord at the notice
address, to complete the Tenant Improvements and Landlord shall reimburse Tenant
for the reasonable cost of the Tenant Improvements completed by Tenant.
5.2. ACCEPTANCE OF PREMISES. After substantial completion of the Tenant
Improvements by Landlord, Landlord and Tenant shall conduct a joint inspection
of the Premises during which they shall develop a mutually agreeable punchlist
of items to be completed by Landlord which shall be completed by Landlord within
thirty (30) days unless requested materials or parts are special or back ordered
items. Landlord shall have the right to enter the Premises to complete or repair
any such punchlist items and entry by Landlord, its agents, servants, employees
or contractors for such purpose shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rent or relieve Tenant of any of its obligations under this Lease, or impose
any liability upon Landlord or its agents, servants, employees or contractors.
6. RENT.
6.1. ANNUAL BASIC RENT. Tenant shall pay to Landlord during each Rental
Year of the Term fixed rent equal to the Annual Basic Rent as set forth in
Section 1.B.(1). Annual Basic Rent shall be payable in advance on the first day
of each month of the Term in equal monthly installments, without notice, demand,
abatement (except as otherwise specifically provided in this Lease), deduction
or set-off. If the Term of this Lease shall commence on a day other than the
first day of a month, the first payment shall include any prorated Annual Basic
Rent for the period from the Lease Commencement Date to the first day of the
first full calendar month of the Term.
"Rental Year" shall mean each successive twelve (12) calendar month period
occurring during the Term of this Lease, or portion of such a period, with the
first Rental Year commencing as of the Lease Commencement Date and ending on the
last day of the twelfth full calendar month thereafter and the last Rental Year
ending on the Termination Date. For any Rental Year of less or more than twelve
full months, Annual Basic Rent shall be adjusted accordingly. All Annual Basic
Rent and Additional Rent shall be paid to Landlord at the Landlord Payment
Address.
6.2. INTENTIONALLY OMITTED.
6.3. ADDITIONAL RENT. Tenant shall pay to Landlord as additional rent
("Additional Rent") all other sums of money which shall become due and payable
hereunder, including but not limited to the payment of Tenant's Share of
Increased Operating Costs. Unless a date for payment is otherwise specified
herein, all Additional Rent shall be due and payable within thirty (30) days of
invoicing by Landlord.
6.4. ADVANCE RENT AND SECURITY DEPOSIT.
A. ADVANCE RENT. Tenant shall, upon execution of this Lease, pay to
Landlord an amount equal to the Advance Rent which shall be held by Landlord as
security for the performance by Tenant of all of its obligations occurring prior
to the Lease Commencement Date. If Tenant shall default in the performance of
such obligations, Landlord may retain the Advance Rent as an offset against any
damages thereby incurred by Landlord provided that the retention of such Advance
Rent shall not preclude Landlord from pursuing any other remedy which it might
have against Tenant. If no default shall occur by Tenant then the Advance Rent
shall be applied against the installment of Annual Basic Rent payable for the
month identified in Section 1.B.(2).
B. SECURITY DEPOSIT. Tenant shall, upon execution of this Lease, deposit
with Landlord the Security Deposit to assure Tenant's performance of all terms,
provisions and conditions of this Lease. Landlord shall have the right, but not
the obligation, at any time, to apply the Security Deposit to cure any breach by
Tenant under this Lease and, in that event, Tenant shall immediately pay
Landlord any amount necessary to restore the Security Deposit to its original
amount. To the extent permitted by law, Landlord shall be entitled to the full
use of the Security Deposit and shall not be required either to keep the
Security Deposit in a separate account or to pay interest on account thereof.
Any portion of the Security Deposit which is not utilized by Landlord for any
purpose permitted under this Lease shall be returned to Tenant within sixty (60)
days after the end of the Term provided Tenant has performed all of the
obligations imposed upon Tenant pursuant to this Lease.
6.5. LATE CHARGE. If Tenant fails to make any payment of Annual Basic
Rent, Additional Rent, or other sums required to be paid hereunder on or before
the date when payment is due, Tenant shall pay to Landlord, as Additional Rent,
a late charge to cover extra administrative costs and loss of use of funds equal
to (a) six percent (6%) of the amount due for the first month or portion thereof
that such amount is past due plus (b) interest on the amount remaining unpaid
thereafter at the rate of eighteen percent (18%) per annum or six percent (6%)
above the prime rate charged by Citibank, N.A., as of the due date of such
amount, whichever rate is the greater; provided, however, that should such late
charge at any time violate any applicable law, the late charge shall be reduced
to the highest rate permitted by law (the foregoing rate being herein referred
to as the "Default Rate"). Landlord's acceptance of any rent after it has become
due and payable shall not excuse any delays with respect to future rental
payments or constitute a waiver of any of Landlord's rights under this Lease.
Notwithstanding the above, the late charge set forth above shall be waived
up to two (2) times in any twelve (12) month period, provided that Tenant pays
the above described sums within five (5) days after the date due.
7. OPERATING COST ESCALATIONS.
7
7.1. DEFINITIONS. For purposes of this Lease, the following
definitions shall apply:
a. "Operating Year" means each respective calendar year or part
thereof during the Term of this Lease or any renewal thereof, or at the option
of Landlord, any other twelve month period or part thereof designated by
Landlord during the Term of this Lease or any renewal thereof.
b. "Property" means the Building, the land upon which the Building
is situated, the Common Area, and such additional facilities in subsequent years
as may be determined by Landlord to be reasonably necessary or desirable for the
management, maintenance or operation of the Building.
c. "Operating Costs" means all expenses and costs (but not specific
costs which are allocated or separately billed to and paid by specific tenants)
of every kind and nature which Landlord shall pay or become obligated to pay
because of or in connection with owning, operating, managing, painting,
repairing, insuring and cleaning the Property, including, but not limited to,
the following:
(i) cost of all supplies and materials used, and labor charges
incurred, in the operation, maintenance, decoration, repairing and cleaning of
the Property, including janitorial service for all floor area leased to tenants;
(ii) cost of all equipment purchased or rented which is utilized
in the performance of Landlord's obligations hereunder, and the cost of
maintenance and operation of any such equipment;
(iii) cost of all maintenance and service agreements for the
Property and the equipment therein, including, without limitation, alarm
service, security service, window cleaning, and elevator maintenance;
(iv) accounting costs, including the cost of audits by certified
public accountants, outside legal and engineering fees and expenses incurred in
connection with the operation and management of the Property;
(v) wages, salaries and related expenses of all on-site and
off-site agents or employees engaged in the operation, maintenance, security and
management of the Property; provided, however, the wages, salaries and related
expenses of any agents or employees not exclusively engaged in the operation,
maintenance, security and management of the Property shall be apportioned as
deemed appropriate by Landlord;
(vi) cost of all insurance coverage for the Property from time
to time maintained by Landlord, including but not limited to the costs of
premiums for insurance with respect to personal injury, bodily injury, including
death, property damage, business interruption, workmen's compensation insurance
covering personnel and such other insurance as Landlord shall deem necessary,
which insurance Landlord may maintain under policies covering other properties
owned by Landlord in which event the premium shall be reasonably allocable;
(vii) cost of repairs, replacements and general maintenance to
the Property, including without limitation the mechanical, electrical and
heating, ventilating and air-conditioning equipment and/or systems (excluding
alterations attributable solely to tenants, capital improvements unless they are
included under c(xi), and repairs and general maintenance paid by proceeds of
insurance or by tenants or other third parties);
8
(viii) any and all Common Area maintenance, repair or
redecoration (including repainting) and exterior and interior landscaping;
(ix) cost of removal of trash, rubbish, garbage and other refuse
from the Property as well as removal of ice and snow from the sidewalks on or
adjacent to the Property;
(x) all charges for electricity, gas, water, sewerage service,
heating, ventilation and air-conditioning and other utilities furnished to the
Property (including legal, architectural and engineering fees incurred in
connection therewith);
(xi) amortization of capital improvements made to the Building
after the year of substantial completion of the Building, which improvements
were undertaken by Landlord with the reasonable expectation that the same would
result in more efficient operation of the Building or are made by Landlord
pursuant to any governmental law, regulation or action not applicable to the
Building at commencement of construction of the Building; 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 and
only that portion attributable to each Operating Year shall be included herein
for such Operating Year;
(xii) a management fee for the operation and management of
the Property;
(xiii) costs and expenses incurred in order to comply with
covenants and conditions contained in liens, encumbrances and other matters of
public record affecting the Property; and
(xiv) all real estate taxes, assessments (special or otherwise),
levies, ad valorem charges, benefit charges, water and sewer rents, rates and
charges, privilege permits and any other governmental liens, impositions or
charges of a similar or dissimilar nature, and any payments in lieu of such
charges, regardless of whether any such items shall be extraordinary or
ordinary, general or special, foreseen or unforeseen, levied, assessed, or
imposed on or with respect to all or any part of the Property or upon the rent
due and payable hereunder by any governmental authority (all of the aforesaid
being hereinafter referred to as "Taxes"); provided, however, that if at any
time during the Term or any extension thereof the method of taxation prevailing
at the commencement of the Term shall be altered or eliminated so as to cause
the whole or any part of the above items which would otherwise be included in
Taxes to be replaced by a levy, assessment or imposition, which is (A) a tax
assessment, levy, imposition or charge based on the rents received from the
Property whether or not wholly or partially a capital levy or otherwise, or (B)
a tax, assessment, levy, imposition or charge measured by or based in whole or
in part upon all or any portion of the Property and imposed on Landlord, or (C)
a license fee measured by the rent payable by Tenant to Landlord, or (D) any
other tax, levy, imposition, charge or license fee, however described or
imposed, then such levy, assessment or imposition shall be included in Taxes;
provided, however, in no event shall Tenant be required to pay any inheritance,
estate, succession, income, profits or franchise taxes unless they are in lieu
of or in substitution for any of the above items which would otherwise be
included in Taxes;
Any of the foregoing costs which under generally accepted accounting
principles would be considered capital expenditures shall be amortized in
accordance with generally accepted accounting principles.
Notwithstanding the above, Operating Costs shall not include:
9
(a) payments of principal, interest, points and fees on any mortgages,
deeds of trust or other financing instruments relating to the financing of the
Property;
(b) leasing commissions or brokerage fees;
(c) costs associated with preparing; improving or altering space
for any leasing or releasing of any space within the Building;
(d) any increase in real estate taxes based on a re-assessment of
the Property resulting from the sale of the Property;
(e) any ground lease rental;
(f) costs of capital improvements and equipment, except for those
as set forth in subsection c(xi) above;
(g) rentals for items (except when needed in connection with normal
repairs and maintenance of permanent systems) which if purchased, rather than
rented, would constitute a capital improvement which is specifically excluded in
Subsection (f) above (excluding, however, equipment not affixed to the Building
which is used in providing janitorial or similar services);
(h) costs incurred by Landlord for the repair of damage to the
Building, to the extent that Landlord is reimbursed by insurance proceeds;
(i) costs, including permit, license and inspection costs, incurred
with respect to the installation of tenant improvements in the Building or
incurred in renovating or otherwise improving, decorating, painting or
redecorating vacant leasable space for tenants or other occupants of leasable
premises in the Building;
(j) depreciation, amortization and interest payments, except as
provided herein and except on materials, tools, supplies and vendor-type
equipment purchased by Landlord to enable Landlord to supply services Landlord
might otherwise contract for with a third party where such depreciation,
amortization and interest payments would otherwise have been included in the
charge for such third party's services, all as determined in accordance with
generally accepted accounting principles, consistently applied, and when
depreciation or amortization is permitted or required, the item shall be
amortized over its reasonably anticipated useful life;
(k) marketing costs, including leasing commissions, attorney's fees in
connection with the negotiation and preparation of letters, deal memos, letters
of intent, leases, subleases and/or assignments, space planning costs, and other
costs and expenses incurred in connection with lease, sublease and/or assignment
negotiations and transaction with present or prospective tenants or other
occupants of the Building;
(l) costs incurred by Landlord for alterations which are considered
capital improvements, and replacements under generally accepted accounting
principles, consistently applied, except as permitted in (f) and (g) above;
(m) costs of a capital nature, including without limitation, capital
improvements, capital repairs, capital equipment and capital tools, all as
determined in accordance with generally accepted accounting principles,
consistently applied, excepted as permitted in (f) and (g) above;
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(n) costs incurred by Landlord due to a violation by any other
tenant of the terms and conditions of any lease;
(o) any amounts paid by Landlord for, materials, labor or equipment
shall be limited to the amounts which would have been paid for the aforesaid,
based upon their procurement from an unaffiliated party in an arms length
transaction;
(p) Landlord's general corporate overhead and corporate general and
administrative expenses, to the extent such overhead and expenses exceeds the
management fee;
(q) any compensation paid to clerks, attendants or other persons,
rendering services on behalf of Landlord in commercial concessions operated by
Landlord, or any compensation paid to attendants working in a parking garage in
the Building or any other parking facility operated by Landlord;
(r) except for making repairs or keeping permanent systems in
operation while repairs are being made, rentals and other related expenses
incurred in leasing air conditioning systems, elevators or other equipment
ordinarily considered to be of a capital nature, except equipment not affixed to
the Building which is used in providing janitorial or similar services;
(s) All items and services for which Tenant or any other tenant in the
Building reimburses Landlord (other than through Tenant's Percentage Share of
Operating Expenses), or which Landlord provides selectively to one or more
tenants (other than Tenant) without reimbursement;
(t) Advertising of a non-employment nature and promotional
expenditures, and procurement costs of signs in or on the Building
identifying the owner of the Building;
(u) Electric power costs for which any tenant directly contracts
with the local public service company;
(v) Tax penalties incurred as a result of Landlord's negligence,
inability or unwillingness to make payments when due;
(w) Costs incurred in curing a violation of environmental laws
regarding the storage, use or disposal of hazardous materials or substances (as
defined by applicable laws) in effect in or about the Building or Property
including, without limitation, hazardous substances in the ground water or soil,
unless such violation of environmental laws are caused by Tenant;
(x) Costs arising from Landlord's charitable or political
contributions;
(y) Costs arising from latent defects in the base, shell or core
of the Building or the Premises;
(z) Costs for procuring sculpture, paintings or other objects of
art;
(aa) attorney fees, costs, and disbursements (including settlements)
and other expenses incurred in connection with proposals, negotiations, or
disputes with other tenants or occupants or prospective tenants or other
occupants, or associated with the enforcement of any leases or the defense of
Landlord's title to or interest in the Premises, the Building or its
appurtenances, or any part thereof.
Landlord further agrees that since one of the purposes of Operating
Expenses and the Increase in Operating Costs provision is to allow the Landlord
to require the Tenant to pay for the costs attributable to its Premises,
Landlord agrees that (i) Landlord will not collect or be entitled to collect
Operating Costs from all of its tenants in an amount which is in excess of 100%
of the Operating Costs actually paid by Landlord in connection with the
operation of the Building.
For any Operating Year during which less than ninety-five percent
(95%) of the Rental Area of the Building is occupied, the calculation of that
portion of Operating Costs which vary with occupancy shall be adjusted to equal
the Operating Costs which Landlord projects would have been incurred had the
Building been ninety-five percent occupied during such Operating Year. Landlord
represents that the Building is completely constructed and improved and fully
assessed for tax purposes.
d. "Fractional Share" shall mean a fraction, the numerator of which
is the Rental Area of the Premises and the denominator of which is the total
Rental Area of the Building. For the purposes of this subparagraph, the Rental
Area of the Building shall mean the sum of the Rental Area of all floors of the
Building as determined by Landlord. As of the Lease Commencement Date, Tenant's
Fractional Share is equal to 4.98%.
7.2. PAYMENT OF OPERATING COST ESCALATION. For each Operating Year,
commencing January 1, 1997, Tenant shall pay to Landlord, in the manner provided
herein, Tenant's Share of Increased Operating Costs which shall be computed by
multiplying the Operating Costs for the Operating Year by Tenant's Fractional
Share and subtracting the Base Operating Costs from the result obtained;
provided, however, that for the Operating Years during which the Term begins and
ends, Tenant's Share of Increased Operating Costs shall be prorated based upon
the actual number of days Tenant occupied, or could have occupied, the Premises
during each such Operating Year. Notwithstanding the foregoing, Tenant's Share
of Increased Operating Costs (excluding taxes, insurance, utilities and snow
removal costs) for the 1997 Operating Year shall not exceed eight percent (8%)
of the Base Operating Costs (excluding taxes, insurance, utilities and snow
removal costs). For purposes of calculating Tenant's Share of Increased
Operating Costs for the 1997 Operating Year , Operating Costs shall not exceed
one hundred eight percent (108%) of the Base Operating Costs. For each Operating
Year thereafter, Tenant's Share of Increased Operating Costs (excluding taxes,
insurance, utilities and snow removal costs) shall not exceed ten percent (10%)
of the of the Operating Costs for the preceding Operating Year. For purposes of
calculating Tenant's Share of Increased Operating Costs, Operating Costs shall
not exceed one hundred ten percent (110%) of the preceding Operating Costs.
Tenant's Share of Increased Operating Costs shall be paid, in advance,
without notice, demand, abatement (except as otherwise specifically provided in
this Lease), deduction or set-off, on the first day of each calendar month
during the Term, said monthly amounts to be determined on the basis of estimates
prepared by Landlord on an annual basis and delivered to Tenant prior to the
commencement of each Operating Year. If, however, Landlord fails to furnish any
such estimate prior to the commencement of an Operating Year, then (a) until the
first day of the month following the month in which such estimate is furnished
to Tenant, Tenant shall pay to Landlord on the first day of each month an amount
equal to the monthly sum payable by Tenant to Landlord under this subsection 7.2
in respect of the last month of the preceding Operating Year; (b) promptly after
such estimate is furnished to Tenant, Landlord shall give notice to Tenant
whether the installments of Tenant's Share of Increased Operating Costs paid by
Tenant for the current Operating Year have resulted in a deficiency or
overpayment compared to payments which would have been paid under such estimate,
and Tenant, within ten (10) days after receipt of such estimate, shall pay any
deficiency to Landlord and any overpayment shall be credited against future
payments required by Tenant under such estimate; and (c) on the first day of the
month following the month in which such estimate is furnished to Tenant and
monthly thereafter throughout the remainder of the Operating Year, Tenant shall
pay to Landlord the monthly payment shown on such estimate. Landlord may at any
time or from time to time furnish to Tenant a revised estimate of Tenant's Share
of Increased Operating Costs for such Operating Year, and in such case, Tenant's
monthly payments shall be adjusted and paid or credited, as the case may be,
substantially in the same manner as provided in the preceding sentence.
After the end of each Operating Year, Landlord shall determine actual
Operating Costs for such Operating Year and shall provide to Tenant an
"Operating Costs Statement" setting forth the actual Tenant's Share of Increased
Operating Costs for such Operating Year. Within thirty (30) days after delivery
of the Operating Costs Statement, Tenant shall pay Landlord any deficiency
between the amount shown as Tenant's Share of Increased Operating Costs in the
Operating Costs Statement and the total of the estimated payments made by Tenant
during the Operating Year. In the event of overpayment, such amount shall be
credited against future payments required on account of Tenant's Share of
Increased Operating Costs, or if the Term has expired, Landlord shall refund to
Tenant the amount of any overpayment within sixty (60) days.
Each Operating Costs Statement provided by Landlord shall be conclusive
and binding upon Tenant unless within thirty (30) days after receipt thereof,
Tenant notifies Landlord that it disputes the correctness thereof, specifying
those respects in which it claims the Operating Costs Statement to be incorrect.
Unless resolved by the parties, such dispute shall be determined by arbitration
in accordance with the then prevailing rules of the American Arbitration
Association. If the arbitration proceedings result in a determination that the
Operating Costs Statement contained an aggregate discrepancy of less than five
percent (5%), Tenant shall bear all costs in connection with such arbitration.
If the arbitration proceedings result in a determination that the Operating
Costs Statement contained an aggregate discrepancy of greater than five percent
(5%), Landlord shall bear all costs in connection with such arbitration. Pending
determination of the dispute, Tenant shall pay any amounts due from Tenant in
accordance with the Operating Costs Statement, but such payment shall be without
prejudice to Tenant's claims. Tenant, for a period of ninety (90) days after
delivery of the Operating Costs Statement in each Operating Year and upon at
least ten (10) days written notice to Landlord, shall have reasonable access
during normal business hours to the books and records of Landlord relating to
Operating Costs for the purpose of verifying the Operating Costs Statement,
Tenant to bear all costs relating to such inspection. Tenant shall reimburse
Landlord for any cost for photocopying that it desires.
8. USE, CARE AND REPAIR OF PREMISES BY TENANT.
8.1. PERMITTED USES. Tenant shall use and occupy the Premises solely for
general office purposes in accordance with applicable zoning regulations and for
no other purpose. Tenant shall not do anything or permit anything to be done in
or on the Premises, or bring or keep anything therein which will, in any way,
obstruct, injure, annoy or interfere with the rights of Landlord or other
tenants, or subject Landlord to any liability for injury to persons or damage to
property, or interfere with the good order of the Building, or conflict with the
laws, rules or regulations of any Federal, state or city authority.
8.2. CARE OF PREMISES. Tenant shall, at its sole expense, keep the
Premises and the improvements and appurtenances therein in good order and
condition consistent with the operation of a first-class office building, and at
the expiration of the Term, or at the sooner termination of this Lease as herein
provided, deliver up the same broom clean and in as good order and condition as
at the beginning of the Term, ordinary wear and tear and damage by fire or other
casualty excepted. Tenant, at its sole expense, shall promptly replace damaged
or broken doors and glass in and about the interior of the Premises and shall be
responsible for the repair and maintenance of all Tenant Improvements and
Alterations, including, without limitation, the repair and replacement of
appliances and equipment installed specifically for Tenant such as
refrigerators, disposals, computer room air conditioning, sinks and special
plumbing, special light fixtures and bulbs for those fixtures, non-standard
outlets and plug-in strips, and special cabinetry. Consistent with the
provisions of Section 22, Tenant shall pay for all damage
to the Property and any fixtures and appurtenances related thereto, as well as
for all property damage sustained by other tenants or occupants of the Building,
due to any waste, misuse or neglect of the Premises and any fixtures and
appurtenances related thereto or due to any breach of this Lease by Tenant, its
employees, agents, representatives or invitees.
8.3. HAZARDOUS SUBSTANCES. For purposes of this provision, "Hazardous
Substances" shall mean any hazardous or toxic substance, material or waste, now
or hereafter defined or regulated under the Resource Conservation and Recovery
Act (42 U.S.C. ss. 6901 ET SEQ.), the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. ss. 9601 ET SEQ.), the Clean Water
Act (33 U.S.C. ss. 1251 ET SEQ.), the Clean Air Act (42 U.S.C. ss. 7401 ET
SEQ.), and the Toxic Substances Control Act (15 U.S.C. ss. 2601 ET seq.), and
all similar federal, state and local statutes, laws, rules and regulations in
connection with environmental conditions, health and safety, including without
limitation, asbestos and petroleum products (collectively, "Environmental
Laws"). Tenant covenants and agrees that it will not use or allow the Premises
to be used for the storage, use, treatment or disposal of any Hazardous
Substance, without Landlord's prior written consent. Notwithstanding the
foregoing, Landlord's prior written consent shall not be required with respect
to Tenant's use, storage or sale of certain supplies or products, which might
contain or might be considered a Hazardous Substance, in the normal course of
Tenant's business in accordance with the specific use permitted by this Lease,
provided, however, that Tenant shall (i) comply with all other provisions of
this Section; (ii) notify Landlord in writing from time to time of the identity
and approximate quantity of such Hazardous Substance; and (iii) keep each such
Hazardous Substance on the Premises in quantities as small as reasonably
practicable, but in no event large enough to activate reporting requirements
under any Environmental Law.
Tenant shall indemnify and hold harmless Landlord, its partners,
affiliates and agents from and against any damages, claims, judgments, fines,
penalties, costs, liabilities (including sums paid in settlement of claims) or
loss including reasonable attorneys' fees, reasonable consultants' fees, and
reasonable expert fees incurred by any of them to the extent resulting from
Tenant's use, handling, generation, treatment, storage, disposal, other
management or release of any Hazardous Substance at or from the Premises or the
Property, whether or not Tenant has acted negligently with respect to such
Hazardous Substance. This indemnity shall survive the expiration or earlier
termination of this Lease.
Landlord warrants and represents to Tenant that to Landlord's actual
knowledge, there are no Hazardous Substances in violation of any Environmental
Regulations in the Property of which the Premises are a part.
From and after the date of execution of this Lease, Landlord will not use
or allow the Property to be used for the storage, use, treatment or disposal of
any Hazardous Substance, in violation of any Environmental Regulations. Landlord
shall promptly contain and remediate any release of a Hazardous Substance on the
Property to the extent such release arises directly from the actions of
Landlord, its agents, servants and employees, and not solely from Landlord's
position as an owner or operator of the Property.
Landlord shall indemnify, hold harmless and defend Tenant, its agents,
servants and employees, from and against all claims, actions, losses and
expenses made or incurred by third parties (including attorneys' and other
professional fees), arising from any conduct, activity, act, omission, or
operation involving the use, handling, generation, treatment, storage, disposal,
or release of any Hazardous Substance in, from, or to the Property, to the
extent caused directly by the actions of Landlord, its agents, servants, and
employees, and not arising solely out of Landlord's position as an owner or
operator of the Property. This indemnity shall survive the expiration or earlier
termination of this Lease.
8.4. COMPLIANCE WITH LAWS.
Tenant, at its sole cost and expense, shall conform to and comply with and
shall cause the Premises to conform to and comply with all federal, state,
county, municipal and other governmental statutes, laws, rules, orders,
regulations, and ordinances applicable to Tenant or resulting from Tenant's use
or occupancy of the Premises or the Property or any part thereof.
Landlord warrants and represents to Tenant that, as of the Lease
Commencement Date, Landlord is in the process of implementing a compliance plan
for the Building, in accordance with the requirements of The Americans With
Disabilities Act of 1990, and Landlord will proceed to execute such plan
throughout the Term, subject to the provisions of Sections 7 and 15.1 of this
Lease.
9. RULES AND REGULATIONS.
Tenant and its agents and invitees shall abide by and observe the rules
and regulations attached hereto as SCHEDULE C for the operation and maintenance
of the Building or any new rules and regulations which may from time to time be
issued by Landlord ("Rules and Regulations"), provided that any new rules or
regulations are not inconsistent with the provisions of this Lease. Nothing in
this Lease shall be interpreted to impose upon Landlord any duty or obligation
to enforce any such rules and regulations against any other tenant in the
Building, and Landlord shall not be liable to Tenant for any violation of these
rules and regulations by any other tenant or its agents or invitees.
All rules and regulations promulgated by Landlord shall be reasonable,
shall not materially alter the terms of this Lease and any enforcement shall be
uniform with respect to all tenants' use and occupancy of the Building and
Common Area.
10. COMMON AREA.
10.1. DEFINITION OF COMMON AREA. As used herein, "Common Area" mean those
areas and facilities which may be furnished by Landlord on or near the Property,
as designated by Landlord from time to time, intended for the general common use
and benefit of all tenants of the Building and their agents, representatives,
licensees, employees and invitees, including, without limitation, any and all
stairs, landings, roofs, utility and mechanical rooms and equipment, service
closets, corridors, elevators, lobbies, lavatories and other public areas of the
Building and all parking areas, access roads, pedestrian walkways, plazas and
landscaped areas.
10.2. USE OF COMMON AREA. Tenant shall have the non-exclusive right to use
the Common Area in common with Landlord, other tenants in the Building, and
others entitled to the use thereof, subject to such reasonable rules and
regulations governing the use of the Common Area as Landlord may from time to
time prescribe and subject to such easements therein as Landlord may from time
to time grant to others so long as there is not material interference of
Tenant's use of the Common Areas. Tenant shall not obstruct in any way any
portion of the Common Area or in any way interfere with the rights of other
persons entitled to use the Common Area and shall not, without the prior written
consent of Landlord, use the Common Area in any manner, directly or indirectly,
for the location or display of any merchandise or property belonging to Tenant
or for the location of signs relating to Tenant's operations in the Premises.
The Common Area shall at all times be subject to the exclusive control and
management of Landlord.
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10.3. ALTERATIONS TO THE COMMON AREA. 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 Area 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 or build adjoining same; provided, however, that no
such change or alteration shall deprive Tenant of access to the Premises,
materially interfere with Tenant's use of the Premises or reduce the Rental Area
of the Premises, unless such reduction is required by Federal, State or local
laws or regulations, in which event, a reduction in the Premises shall be
permitted with a commensurate reduction in rent. Landlord shall have the right
to close temporarily all or any portion of the Common Area to such extent as
may, in the reasonable opinion of Landlord, be necessary to prevent a dedication
thereof to the public, provided that Tenant is not thereby denied access to the
Premises, or for repairs, replacements or maintenance to the Common Area,
provided such repairs, replacements or maintenance are performed expeditiously
and in such a manner as not to deprive Tenant of access to the Premises.
10.4. MAINTENANCE. Landlord covenants to keep, maintain, manage and
operate the Common Area in a manner consistent with the operation of a first
class office building and to keep the sidewalks and driveways, if any,
constituting a portion of the Common Area clean and reasonably clear of snow and
ice. Landlord reserves the right of access to the Common Area through the
Premises for the purposes of operation, decoration, cleaning, maintenance,
safety, security, alterations and repairs.
11. SERVICES AND UTILITIES.
So long as Tenant is not in an Event of Default under this Lease, Landlord
shall provide the following facilities and services to Tenant as part of
Landlord's Operating Costs (except as otherwise provided herein):
a. At least one elevator (if the building contains an elevator) subject to
call at all times, including Sundays and holidays. The holidays observed by
Landlord are New Year's Day, Memorial Day observed, Independence Day, Labor Day,
Thanksgiving, and Christmas.
b. During "normal business hours" as hereinafter defined, central heating
and air conditioning during the seasons of the year when these services are
normally and usually furnished, and within the temperature ranges and in such
amounts normally or usually furnished in comparable office buildings in the
immediate vicinity. For the purposes of this paragraph b, the term "normal
business hours" shall mean the periods from 8:00 a.m. until 6:00 p.m. on
business days and from 9:00 a.m. until 1:00 p.m. on Saturdays. Landlord shall
provide the aforesaid services at other times, at Tenant's expense, provided
Tenant gives Landlord notice by 1:00 p.m. on weekdays for after-hour service on
the next weekday, by 1:00 p.m. the day before a holiday for service on a
holiday, and by 1:00 p.m. on Friday for after-hour service on Saturday or
service on Sunday. Such after-hour, holiday or special weekend service shall be
charged to Tenant at rates to be calculated by Landlord based on Landlord's
costs, which rates is currently Twenty-Five Dollars ($25.00) per hour. Landlord
reserves the right to adjust, from time to time, the rate at which such services
shall be provided corresponding to adjustments in Landlord's costs. Tenant shall
pay for such service, as Additional Rent, promptly upon receipt of an invoice
with respect thereto.
c. Reasonable amounts of electric current for lighting and normal and
customary items of office equipment (subject to the provisions of Section 12
below).
12
d. Cleaning in Landlord's standard manner.
e. Replacement of light tubes or bulbs for building standard lighting
fixtures. All light tube or bulb replacements for special non-standard lighting
fixtures shall be furnished and installed by Landlord at Tenant's expense.
f. Rest room facilities and necessary lavatory supplies, including hot and
cold running water at the points of supply, as provided for general use of all
tenants in the Building and routine maintenance, painting, and electric lighting
service for all public areas of the Building in such manner as Landlord deems
reasonable.
Any failure by Landlord to furnish the foregoing services, resulting from
circumstances beyond Landlord's reasonable control or from interruption of such
services due to repairs or maintenance, shall not render Landlord liable in any
respect for damages to either person or property, nor be construed as an
eviction of Tenant, nor cause an abatement of rent hereunder, nor relieve Tenant
from any of its obligations hereunder. If any public utility or governmental
body shall require Landlord or Tenant to restrict the consumption of any utility
or reduce any service for the Premises or the Building, Landlord and Tenant
shall comply with such requirements, whether or not the utilities and services
referred to in this Section 11 are thereby reduced or otherwise affected,
without any liability on the part of Landlord to Tenant or any other person or
any reduction or adjustment in rent payable hereunder. Landlord and its agents
shall be permitted reasonable access to the Premises for the purpose of
installing and servicing systems within the Premises deemed necessary by
Landlord to provide the services and utilities referred to in this Section 11 to
Tenant and other tenants in the Building. In the event any failure to supply
services continues uninterrupted for a period of greater than fourteen (14)
consecutive calendar days and thereby renders the Premises wholly or partially
untenantable, the rent shall be abated to the extent of such untenantability.
Landlord acknowledges that Tenant may require an additional HVAC unit for
a portion of the Premises and Landlord agrees, at Tenant's sole cost and
expense, to install such supplemental HVAC equipment upon written notice from
Tenant of its additional HVAC requirements.
Landlord reserves the right to charge Tenant the reasonable cost, based on
usage, of the removal of all trash and the reasonable cost of water/sewerage or
electric service to the extent Tenant's trash disposal, water/sewerage and/or
electrical usage exceeds, in Landlord's reasonable opinion, normal usage for an
office tenant.
12. ELECTRIC CURRENT.
Landlord shall be under no obligation to furnish electrical energy to
Tenant in amounts greater than needed for lighting and normal and customary
items of equipment for general office purposes, and Tenant shall not install or
use on the Premises any electrical equipment, appliance or machine which shall
require amounts of electrical energy exceeding the standard wattage (4.5. watts
per square foot exclusive of HVAC) provided for the Building, unless the
installation and use of such additional electrical equipment, appliance, or
machine has been approved by Landlord pursuant to terms and conditions set forth
in a separate agreement, which approval may be conditioned upon the payment by
Tenant, as Additional Rent, of the cost of the additional electrical energy and
modifications to the Building's electrical system required for the operation of
such electrical equipment, appliance, or machine.
13. LOSS, DAMAGE AND INJURY.
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To the maximum extent permitted by law, Tenant shall occupy and use the
Premises, the Building and the Common Area at Tenant's own risk. Consistent with
the provisions of subsection 16.4, Tenant's Personal Property and the property
of those claiming by, through or under Tenant, located in or on the Premises or
the Building, shall be and remain at the sole risk of Tenant or such other
person.
No representation, guaranty, assurance, or warranty is made or given by
Landlord that the communications or security systems, devices or procedures
used, if any, will be effective to prevent injury to Tenant or any other person
or damage to, or loss (by theft or otherwise) of any of Tenant's Personal
Property or of the property of any other person, and Landlord reserves the right
to discontinue or modify at any time such communications or security systems,
devices, or procedures without liability to Tenant.
14. REPAIRS BY LANDLORD.
Landlord shall keep the Premises and the Building and all machinery,
equipment, fixtures and systems of every kind attached to, or used in connection
with the operation of, the Building, including all electrical, heating,
mechanical, sanitary, sprinkler, utility, power, plumbing, cleaning,
refrigeration, ventilating, air conditioning and elevator systems and equipment
(excluding, however, lines, improvements, systems and machinery for water, gas,
steam and electricity owned and maintained by any public utility company or
governmental agency or body) in good order and repair consistent with the
operation of the Building as a first-class office building. Landlord, at its
expense (subject to reimbursement by Tenant pursuant to Section 7), shall make
all repairs and replacements necessary to comply with its obligations set forth
in the immediately preceding sentence, except for (a) repairs required to be
made by Tenant pursuant to Section 8 and (b) notwithstanding the provisions of
Section 16.4, repairs caused by the negligence or willful misconduct of Tenant,
its agents, employees, invitees and guests, which repairs shall be made by
Landlord at the cost of Tenant, and for which Tenant shall pay promptly, as
Additional Rent, upon receipt of an invoice setting forth the cost of such
repairs. There shall be no abatement in rents due and payable hereunder and no
liability on the part of Landlord by reason of any inconvenience or annoyance
arising from Landlord's making repairs, additions or improvements to the
Building in accordance with its obligations hereunder.
In an emergency, Landlord shall use all reasonable efforts to commence the
repair within twenty-four (24) hours after notification from Tenant and shall
diligently work to complete the same. In all other instances, Landlord shall
commence repairs as soon as reasonably possible after notice from Tenant and
shall diligently work to complete the same. In the event Landlord fails to
commence and diligently pursue any repairs or provide services for which
Landlord is responsible within thirty (30) days after written notice from Tenant
of the need for repair or such services, Tenant shall have the right with notice
to Landlord at the notice address to perform the repairs or provide such
services and Landlord shall reimburse Tenant for the reasonable cost of repair
or provision of services.
15. ALTERATIONS, TITLE AND PERSONAL PROPERTY.
15.1. ALTERATIONS. Tenant shall in no event make or permit to be made any
alteration, modification, substitution or other change of any nature to the
mechanical, electrical, plumbing, HVAC and sprinkler systems within or serving
the Premises. After completion of Tenant's Improvements within the Premises,
Tenant shall not make or permit any other improvements, alterations, fixed
decorations, substitutions or modifications, structural or otherwise, to the
Premises or the Building ("Alterations") without the prior written approval of
Landlord. Landlord shall not unreasonably withhold or delay its consent to
Alterations which do not affect the structural, mechanical, plumbing or
electrical elements or systems of the Building and which are not visible from
outside the Premises, provided such work conforms with the design criteria,
standards and architectural guidelines for the Building. Landlord's approval
shall include the conditions under which acceptable Alterations may be made.
Alterations shall include, but not be limited to, the installation or
modification of carpeting, walls, partitions, counters, doors, shelves, lighting
fixtures, hardware, locks, ceiling, window and wall coverings; but shall not
include the initial Tenant's Improvements placed within the Premises pursuant to
Section 5.1. All Alterations shall be based on complete plans and specifications
prepared and submitted by Tenant to Landlord for approval, except in the
instance of cosmetic changes, such as painting and carpeting, in which case
Tenant shall provide Landlord with samples showing colors, styles, etc. All
Alterations shall be made by Landlord at Tenant's sole cost, payable by Tenant,
as Additional Rent, within thirty (30) days after receipt of an invoice for same
from Landlord, which cost shall include Landlord's standard construction
management fee. Tenant shall be responsible for the cost of any additional
improvements within the Premises or the Common Area required by The Americans
with Disabilities Act of 1990 as a result of Tenant's Alterations.
If Tenant makes any Alterations without the prior consent of Landlord,
then, in addition to Landlord's other remedies, Landlord may correct or remove
such Alterations and Tenant shall pay the cost thereof, as Additional Rent,
within ten (10) days of receipt of invoice from Landlord.
15.2. TITLE. The Tenant Improvements, all Alterations and all equipment,
machinery, furniture, furnishings, and other property or improvements installed
or located in the Premises by or on behalf of Landlord or Tenant, other than
Tenant's Personal Property, (a) shall immediately become the property of
Landlord and (b) shall remain upon and be surrendered to Landlord with the
Premises as a part thereof at the end of the Term. Notwithstanding the
foregoing, Landlord may, upon notice to Tenant at the time Alterations are made,
elect that any Alterations be removed at the end of the Term, and thereupon,
Landlord shall at Tenant's sole expense, cause such Alterations to be removed
and restore the Premises to its condition prior to the making of such
Alterations, reasonable wear and tear excepted. Tenant shall promptly reimburse
Landlord, as Additional Rent, for the cost of such work, which reimbursement
obligation shall survive termination of the Lease.
15.3. TENANT'S PERSONAL PROPERTY. "Tenant's Personal Property" means all
equipment, machinery, furniture, furnishings and/or other property now or
hereafter installed or placed in or on the Premises by and at the sole expense
of Tenant with respect to which Tenant has not been granted any credit or
allowance by Landlord and which (a) is not used, or was not procured for use, in
connection with the operation, maintenance or protection of the Premises or the
Building; (b) is removable without damage to the Premises or the Building; and
(c) is not a replacement of any property of Landlord, whether such replacement
is made at Tenant's expense or otherwise. Notwithstanding any other provision of
this Lease, Tenant's Personal Property shall not include any Alterations or any
improvements or other property installed or placed in or on the Premises as part
of Tenant's Improvements, whether or not installed at Tenant's expense. Tenant
shall promptly pay all personal property taxes on Tenant's Personal Property, as
applicable. Provided that Tenant is not then in default of any of its
obligations under this Lease, Tenant may remove all Tenant's Personal Property
from the Premises at the termination of this Lease. Any property belonging to
Tenant or any other person which is left in the Premises after the date the
Lease is terminated for any reason shall be deemed to have been abandoned. In
such event, Landlord shall have the right to declare itself the owner of such
property and to dispose of it in whatever manner Landlord considers appropriate
without waiving its right to claim from Tenant all expenses and damages caused
by Tenant's failure to remove such property, and Tenant shall not have any right
to compensation or claim against Landlord as a result.
16. INSURANCE.
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16.1. TENANT'S INSURANCE. Tenant, at its expense, shall obtain and
maintain in effect as long as this Lease remains in effect and during such other
time as Tenant occupies the Premises or any part thereof insurance policies in
accordance with the following provisions.
A. COVERAGE.
(i) commercial general liability insurance policy, including
insurance against assumed or contractual liability under this Lease, with
respect to the Property, to afford protection with limits, per occurrence, of
not less than One Million Dollars ($1,000,000), combined single limit, with
respect to personal injury, bodily injury, including death, and property damage
and Two Million Dollars ($2,000,000) aggregate (occurrence form), such insurance
to provide for no deductible;
(ii) all-risk property insurance policy, including theft, written at
replacement cost value and with replacement cost endorsement, covering all of
Tenant's Personal Property in the Premises, and covering loss of income
resulting from casualty, such insurance to provide for no deductible greater
than Five Thousand Dollars ($5,000).
(iii) worker's compensation or similar insurance policy offering
statutory coverage and containing statutory limits, which policy shall also
provide Employer's Liability Coverage of not less than Five Hundred Thousand
Dollars ($500,000) per occurrence.
(iv) Tenant shall require any construction contractor retained by it
to perform work on the Premises to carry and maintain, at no expense to
Landlord, during such times as contractor is working in the Premises, a
non-deductible (a) commercial general liability insurance policy, including, but
not limited to, contractor's liability coverage, contractual liability coverage,
completed operations coverage, broad form property damage endorsement and
contractor's protective liability coverage, to afford protection with limits per
person and for each occurrence, of not less than Two Million Dollars
($2,000,000), combined single limit, and with respect to personal injury and
death and property damage, Four Million Dollars ($4,000,000) aggregate
(occurrence form) and Two Million Dollars ($2,000,000) aggregate completed
operations; (b) automobile liability insurance in the amount of One Million
Dollars ($1,000,000) combined single limit for bodily injury and property
damage; (c) worker's compensation insurance or similar insurance in form and
amounts as required by law; and (d) any other insurance reasonably required of
Tenant by Landlord or any Mortgagee.
(v) Notwithstanding anything set forth above in this subsection 16.1
to the contrary, with prior written notice to Tenant, all dollar limits
specified herein shall be increased from time to time as reasonably necessary to
effect economically equivalent insurance coverage, or coverage deemed adequate
in light of then existing circumstances.
B. POLICIES.
Such policies shall be maintained with companies licensed to do business
in the State where the Premises are located and in form reasonably acceptable to
Landlord and will be written as primary policy coverage and not contributing
with, or in excess of, any coverage which Landlord shall carry. Such policies
shall be provided on an occurrence form basis unless otherwise approved by
Landlord and shall include Landlord and its managing agent as additional insured
as to coverage under paragraphs 16.1.A.(i) and 16.1.A.(iv). Such policies shall
also contain a waiver of subrogation provision and a provision stating that such
policy or policies shall not be canceled, non-renewed, reduced in coverage or
materially altered except after thirty (30) day's written notice, said notice to
be given in the manner required by this Lease to Landlord, Attention: Risk
Management Department. All such policies of insurance shall be effective as of
the date Tenant occupies the Premises and shall be maintained in force at all
times during the Term of this Lease and all other times during which Tenant
shall occupy the Premises. Tenant shall deposit the policy or policies of such
required insurance or certificates thereof with Landlord prior to the Lease
Commencement Date.
16.2. TENANT'S FAILURE TO INSURE. If Tenant shall fail to obtain insurance
as required under this Section 16, Landlord may, but shall not be obligated to,
obtain such insurance, and in such event, Tenant shall pay, as Additional Rent,
the premium for such insurance upon demand by Landlord.
16.3. COMPLIANCE WITH POLICIES. Tenant shall not do or allow to be done,
or keep, or allow to be kept, anything in, upon or about the Premises which will
contravene Landlord's policies insuring against loss or damage by fire, other
casualty, or any other cause, including without limitation, public liability, or
which will prevent Landlord from procuring such policies in companies acceptable
to Landlord. If any act or failure to act by Tenant in and about the Building
and the Premises shall cause the rates with respect to Landlord's insurance
policies to be increased beyond those rates that would normally be applicable
for such limits of coverage, after notice to Tenant of such increase and
verification from Landlord's insurance carrier, Tenant shall pay, as Additional
Rent, the amount of any such increases upon demand by Landlord.
16.4. WAIVER OF RIGHT OF RECOVERY. Except as provided in Section 8.3,
neither party, including Landlord's managing agent, shall be liable to the other
party, including Landlord's managing agent, or to any insurance company (by way
of subrogation or otherwise) insuring the other party, for any loss or damage to
any building, structure or other tangible property, or loss of income resulting
therefrom, or losses under worker's compensation laws and benefits even though
such loss or damage might have been occasioned by the negligence of such party,
its agents or employees. The provisions of this Section 16.4 shall not limit the
indemnification for liability to third parties pursuant to Section 22.
16.5. LANDLORD'S INSURANCE. Landlord shall carry comprehensive
general liability insurance with regard to the Property and all-risk property
insurance on the Property, including Tenant Improvements and Alterations but
excluding Tenant's Personal Property.
Landlord shall not be obligated to repair any damage to Tenant's Personal
Property or replace the same.
17. DAMAGE AND DESTRUCTION.
17.1. LANDLORD'S OBLIGATION TO REPAIR AND RECONSTRUCT. If, as the result
of fire, the elements, accident or other casualty (any of such causes being
referred to herein as a "Casualty"), the Premises shall be rendered wholly or
partially untenantable (damaged to such an extent as to preclude Tenant's use of
the Premises for the purposes originally intended), then, subject to the
provisions of subsection 17.2, Landlord shall cause such damage to be repaired,
including Tenant Improvements and Alterations, to the extent insurance proceeds
are paid to Landlord, and the Annual Basic Rent and Additional Rent (but not any
Additional Rent due Landlord either by reason of Tenant's failure to perform any
of its obligations hereunder or by reason of Landlord's having provided Tenant
with additional services hereunder) shall be abated proportionately as to the
portion of the Premises rendered untenantable during the period of such
untenantability. All such repairs shall be made at the expense of Landlord,
subject to the availability of insurance proceeds and Tenant's responsibilities
set forth herein. Landlord shall not be liable for interruption to Tenant's
business or for damage to or replacement or repair of Tenant's Personal
Property, all of which replacement or repair shall be undertaken and completed
by Tenant, at Tenant's expense.
15
If the Premises shall be damaged by Casualty, but the Premises shall not
be thereby rendered wholly or partially untenantable, Landlord shall promptly
cause such damage to be repaired and there shall be no abatement of rent
reserved hereunder.
17.2. TERMINATION OF LEASE. If the Premises are (a) rendered wholly
untenantable, or (b) damaged as a result of any cause which is not covered by
Landlord's insurance, or if the Building is damaged to the extent of fifty
percent (50%) or more of the gross leasable area thereof, or if, for reasons
beyond Landlord's control or by virtue of the terms of any financing of the
Building, sufficient insurance proceeds are not available for the reconstruction
or restoration of the Building or Premises, then, in any of such events,
Landlord may elect to terminate this Lease by giving to Tenant notice of such
election within sixty (60) days after the occurrence of such event, or after the
insufficiency of such proceeds becomes known to Landlord, whichever is
applicable. If such notice is given, the rights and obligations of the parties
shall cease as of the date set forth in such notice, and the Annual Basic Rent
and Additional Rent (but not any Additional Rent due Landlord either by reason
of Tenant's failure to perform any of its obligations hereunder or by reason of
Landlord's having provided Tenant with additional services hereunder) shall be
adjusted as of the date set forth in such notice, or, if the Premises were
rendered untenantable, as of the date of the Casualty.
Within sixty (60) days following a Casualty, Landlord shall notify Tenant
in writing of the date on which Landlord, in its best professional judgment,
estimates restoration will be substantially completed. If restoration is
expected to exceed one hundred eighty (180) days from the date of Landlord's
notice, then Tenant shall have the right to terminate this Lease on written
notice to Landlord within fifteen (15) days after receipt of Landlord's notice.
17.3. DEMOLITION OF THE BUILDING. If the Building shall be so
substantially damaged that it is reasonably necessary, in Landlord's judgment,
to demolish the Building for the purpose of reconstruction, Landlord may
demolish the same, in which event the Annual Basic Rent and Additional Rent (but
not any Additional Rent due Landlord either by reason of Tenant's failure to
perform any of its obligations hereunder or by reason of Landlord's having
provided Tenant with additional services hereunder) shall be abated to the same
extent as if the Premises were rendered wholly untenantable by a Casualty.
17.4. INSURANCE PROCEEDS. If the Lease is not terminated pursuant to
subsection 17.2, Landlord shall, subject to the terms of any Mortgage, disburse
and apply any insurance proceeds received by Landlord to the restoration and
rebuilding of the Building in accordance with subsection 17.1 hereof. All
insurance proceeds payable with respect to the Premises and the Building shall
belong to and shall be payable to Landlord.
18. CONDEMNATION.
18.1. TERMINATION. If either the entire Premises or the Building shall be
acquired or condemned by any governmental authority under its power of eminent
domain for any public or quasi-public use or purpose, this Lease shall terminate
as of the date of vesting or acquisition of title in the condemning authority
and the rents hereunder shall be abated on that date. If less than the whole but
more than fifty percent (50%) of the Rental Area of the Premises or more than
fifty percent (50%) of the total area of the Building (even if the Premises are
unaffected) or such portion of the Common Area as shall render the Premises or
the Building untenantable should be so acquired or condemned, Landlord and
Tenant shall each have the option to terminate this Lease by notice given to the
other within ninety (90) days of such taking. In the event that such a notice of
termination is given, this Lease shall terminate as of the date of vesting or
acquisition of title in the condemning authority and the Annual Basic Rent and
Additional Rent (but not any Additional Rent due Landlord either by reason of
Tenant's failure to perform any of its obligations hereunder, or by reason of
Landlord's having provided Tenant with additional services hereunder) shall be
adjusted as of such date.
If (a) neither Landlord nor Tenant shall exercise their respective options
to terminate this Lease, as hereinabove set forth, or (b) some lesser portion of
the Premises or the Building or Common Area, which does not give rise to a right
to terminate pursuant to this subsection 18.1, is taken by the condemning
authority, this Lease shall continue in force and effect, but from and after the
date of the vesting of title in the condemning authority, the Annual Basic Rent
payable hereunder during the unexpired portion of the Term shall be reduced in
proportion to the reduction in the total Rental Area of the Premises, and any
Additional Rent (but not any Additional Rent due Landlord either by reason of
Tenant's failure to perform any of its obligations hereunder, or by reason of
Landlord's having provided Tenant with additional services hereunder) payable
pursuant to the terms hereof shall be adjusted to reflect the diminution of the
Premises and/or the Building, as the case may be.
18.2. RIGHTS TO AWARD. Tenant shall have no claim against Landlord arising
out of the taking or condemnation, or arising out of the cancellation of this
Lease as a result of any such taking or condemnation, or for any portion of the
amount that may be awarded as damages as a result of any taking or condemnation,
or for the value of any unexpired portion of the Term, or for any property lost
through condemnation, and Tenant hereby assigns to Landlord all its right, title
and interest in and to any such award with regard to the Premises; provided,
however, that, in the event of a total taking, Tenant may assert any claim it
may have against the condemning authority for compensation for Tenant's Personal
Property lost thereby, loss of income, and for any relocation expenses
compensable by statute and receive such awards therefor as may be allowed in the
condemnation proceedings provided that such awards shall be made in addition to,
and stated separately from, the award made for the Building, the underlying land
and the Premises. Landlord shall have no obligation to contest any taking or
condemnation.
19. BANKRUPTCY.
19.1. EVENT OF BANKRUPTCY. For purposes of this Lease, each of the
following shall be deemed an "Event of Tenant's Bankruptcy":
(a) if Tenant becomes insolvent, as defined in the Bankruptcy
Code, or under the Insolvency Laws;
(b) the commencement of any action or proceeding for the
dissolution or liquidation of Tenant or for the appointment of
a receiver or trustee of the property of Tenant, whether
instituted by or against Tenant, if not bonded or discharged
within thirty (30) days of the date of the commencement of
such proceeding or action;
(c) if Tenant files a voluntary petition under the Bankruptcy
Code or Insolvency Laws;
(d) if there is filed an involuntary petition against Tenant as
the subject debtor under the Bankruptcy Code or Insolvency
laws, which is not dismissed within sixty (60) days of filing,
or results in issuance of an order for relief against the
debtor; and
(e) if Tenant makes or consents to an assignment of its assets, in
whole or in part, for the benefit of creditors, or to a common
law composition of creditors.
16
As used herein, (i) "Bankruptcy Code" means title 11 of the United States
Code, 11 U.S.C. Section 101 et. seq. as amended or any successor statute and
(ii) Insolvency Laws means the insolvency laws of any state or territory of the
United States.
19.2. ASSUMPTION BY TRUSTEE. If Tenant becomes the subject debtor in a
case pending under the Bankruptcy Code, Landlord's right to terminate this Lease
under Section 20 hereof shall be subject to the applicable rights (if any) of
the Trustee in Bankruptcy to assume or assign this Lease as then provided for in
the Bankruptcy Code. However, the Trustee in Bankruptcy must give to Landlord
and Landlord must receive proper written notice of the Trustee's assumption or
rejection of this Lease, within sixty (60) days (or such other applicable period
as is provided for in the Bankruptcy Code) after the date of the Trustee's
appointment. The failure of the Trustee to give notice of the assumption within
the period shall conclusively and irrevocably constitute the Trustee's rejection
of this Lease and waiver of any rights of the Trustee to assume or assign this
Lease. The Trustee shall not have the right to assume or assign this Lease
unless the Trustee (i) promptly and fully cures all defaults under this Lease,
(ii) promptly and fully compensates Landlord for all monetary damages incurred
as a result of such default, and (iii) provides to Landlord adequate assurance
of future performance. In the event Tenant is unable to: (i) cure its defaults,
(ii) reimburse Landlord for its monetary damages, or (iii) pay the Rent due
under this Lease on time, then Tenant hereby agrees in advance that it has not
met its burden to provide adequate assurance of future performance, and this
Lease may be terminated by Landlord in accordance with Section 20.
19.3. TENANT'S GUARANTOR'S BANKRUPTCY. Notwithstanding any of the other
provisions of this Lease, in the event Tenant's obligations under this Lease are
guaranteed by a guarantor, and said guarantor shall voluntarily or involuntarily
come under the jurisdiction of the Bankruptcy Code, and thereafter said
guarantor or its trustee in bankruptcy, under the authority of and pursuant to
applicable provisions thereof, shall determine to assign the guarantee
obligations of said guarantor hereunder, Tenant and its said guarantor agree
that (a) said guarantor or its trustee will provide Landlord sufficient
information enabling it to independently determine whether Landlord will incur
actual and substantial detriment by reason of such assignment, and (b) "adequate
assurance of future performance" in regard to such guarantee obligations of said
guarantor, as that term is generally defined under the Bankruptcy Code, will be
provided to Landlord by said guarantor or its trustee and its assignee as a
condition of said assignment.
20. DEFAULT PROVISIONS AND REMEDIES.
20.1. EVENTS OF DEFAULT. Each of the following shall be deemed an
Event of Default by Tenant under this Lease:
a. failure of Tenant to pay Annual Basic Rent, Additional Rent, or
any other sum required to be paid under the terms of this Lease, including late
charges, within ten (10) days after notice from Landlord of non-payment;
b. failure by Tenant to perform or observe any other term, covenant,
agreement or condition of this Lease, on the part of Tenant to be performed
(other than those obligations of Tenant set forth in subsection 16.2 for which
Tenant shall be entitled to receive no prior notice, and other than the
conditions set forth in paragraphs 20.1.a, c, d, e, f and g, which shall be
governed solely by the provisions set forth herein), within thirty (30) days
after notice thereof from the Landlord, unless such performance shall reasonably
require a longer period, in which case Tenant shall not be deemed in default if
Tenant commences the required performance promptly and thereafter pursues and
completes such action diligently and expeditiously and in any event within not
more than thirty (30) days;
17
c. the filing of a tax or mechanic's lien against any property
of Tenant which is not bonded or discharged within thirty (30) days of the
date such lien is filed;
d. abandonment of the Premises by Tenant; provided, however, that
Tenant shall not be deemed to be in default hereunder so long as Tenant shall
continue the payment of Annual Basic Rent and Additional Rent under this Lease;
e. an Event of Tenant's Bankruptcy;
f. the sale of Tenant's interest in the Premises under
attachment, execution or similar legal process; and
g. the failure of Tenant to vacate the Premises upon the
expiration of the Term, or the earlier termination thereof pursuant to the
other provisions hereof.
20.2. REMEDIES. Upon the occurrence of an Event of Default, Landlord,
without notice to Tenant in any instance (except where expressly provided for
below or by applicable law) may do any one or more of the following:
(a) Intentionally deleted
(b) perform, on behalf and at the expense of Tenant, any
obligation of Tenant under this Lease which Tenant
has failed to perform and of which Landlord shall
have given Tenant notice, the cost of which
performance by Landlord, together with interest
thereon at the Default Rate from the date of such
expenditure, shall be payable by Tenant to Landlord,
as Additional Rent, upon demand. Notwithstanding the
provisions of this clause (b) and regardless of
whether an Event of Default shall have occurred,
Landlord may exercise the remedy described in clause
(b) without any notice to Tenant if Landlord, in its
good faith judgment, believes it would be materially
injured by failure to take rapid action or if the
unperformed obligation of Tenant constitutes an
emergency;
(c) elect to terminate this Lease and the tenancy created
hereby by giving notice of such election to Tenant,
and reenter the Premises, by summary proceedings or
otherwise, and remove Tenant and all other persons
and property from the Premises, and store such
property in a public warehouse or elsewhere at the
cost of and for the account of Tenant without resort
to legal process and without Landlord being deemed
guilty of trespass or becoming liable for any loss or
damage occasioned thereby;
(d) declare any option which Tenant may have to renew the
Term or expand the Premises to be null and void and of
no further force and effect; or
(e) exercise any other legal or equitable right or remedy
which it may have.
Any costs and expenses incurred by Landlord (including, without
limitation, reasonable attorneys' fees) in enforcing any of its rights or
remedies under this Lease shall be paid to Landlord by Tenant, as Additional
Rent, upon demand.
18
20.3. DAMAGES. If this Lease is terminated by Landlord pursuant to Section
20.2.(c), Tenant nevertheless shall remain liable for (a) any Annual Basic Rent,
Additional Rent, and damages which may be due or sustained prior to such
termination, and (b) all reasonable costs, fees and expenses including, but not
limited to, attorneys' fees, costs and expenses incurred by Landlord in pursuit
of its remedies hereunder or in renting the Premises to others from time to
time. In addition, Landlord may recover from Tenant additional damages to
compensate Landlord for loss of rent resulting from termination of the Lease,
which, at the election of Landlord, shall be either:
(i) An amount equal to the rent which, but for
termination of this Lease, would have become due
during the remainder of the Term, less the amount of
rent, if any, which Landlord shall receive during
such period from others to whom the Premises may be
rented (other than any Additional Rent received by
Landlord as a result of any failure of such other
person to perform any of its obligations to
Landlord), in which case such damages shall be
computed and payable in monthly installments, in
advance, on the first day of each calendar month
following termination of the Lease and continuing
until the date on which the Term would have expired
but for such termination; any suit or action brought
to collect any such damages for any month shall not
in any manner prejudice the right of Landlord to
collect any damages for any subsequent month by a
similar proceeding; or
(ii) an amount equal to the present worth (as of the date
of such termination) of rent which, but for
termination of this Lease, would have become due
during the remainder of the Term, in which case such
damages shall be payable to Landlord in one lump sum
on demand and shall bear interest at the Default Rate
until paid. For purposes of this clause (ii),
"present worth" shall be computed by discounting such
amount to present worth at a discount rate equal to
one percentage point above the discount rate then in
effect at the Federal Reserve Bank nearest to the
location of the Property. Notwithstanding anything
to the contrary contained in this paragraph, Landlord
agrees to limit its right to accelerate and collect
the present worth of Annual Basic Rent due, to
successive eighteen (18) month periods following the
date of the Default until the Lease Termination
Date.
Damages shall be due and payable immediately upon demand by Landlord
following any termination of this Lease pursuant to Section 20.2.
If this Lease is terminated pursuant to Section 20.2., Landlord may
re-lease the Premises or any part thereof, alone or together with other
premises, for such term(s) (which may be greater or less than the period which
otherwise would have constituted the balance of the Term) and on such terms and
conditions (which may include concessions or free rent and alterations of the
Premises) as Landlord, in its sole discretion, may determine. The failure or
refusal of Landlord to re-lease the Premises or any part or parts thereof shall
not release or affect Tenant's liability for damages. Notwithstanding anything
to the contrary in this Section 20.3, Landlord shall use reasonable efforts to
re-lease the Premises, provided that Landlord shall not be required to (i) use
methods or procedures other than its usual methods and procedures for finding
tenants for comparable space in the Building; (ii) lease the Premises in
preference to any other space in the Building available for lease, regardless of
when such other space became available for lease; (iii) lease the Premises at
rents lower than the rate at which Landlord would otherwise offer such space to
a third party; (iv) to make improvements to the Premises at Landlord's expense;
and (v) lease the Premises for any purpose or use other than that specifically
permitted by this Lease. Landlord shall not be liable to Tenant for Landlord's
failure to re-lease the Premises despite the exercise of reasonable efforts
pursuant to this paragraph, and no such re-leasing shall relieve Tenant of its
obligations under the terms of this Lease, including, without limitation, the
payment of rent as set forth herein.
Nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove and obtain in proceedings for the termination of this Lease by
reason of bankruptcy or insolvency, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damages referred to
above.
20.4. NO WAIVER. No act or omission by Landlord shall be deemed to be an
acceptance of a surrender of the Premises or a termination of Tenant's
liabilities hereunder, unless Landlord shall execute a written release of
Tenant. Tenant's liability hereunder shall not be terminated by the execution by
Landlord of any new lease for all or any portion of the Premises or the
acceptance of rent from any assignee or subtenant.
20.5. REMEDIES NOT EXCLUSIVE. All rights and remedies of Landlord set
forth in this Lease shall be cumulative, and none shall exclude any other right
or remedy, now or hereafter allowed by or available under any statute,
ordinance, rule of court, or the common law, either at law or in equity, or
both. For the purposes of any suit brought or based hereon, this Lease shall be
construed to be a divisible contract, to the end that successive actions may be
maintained on this Lease as successive periodic sums shall mature hereunder. The
failure of Landlord to insist, in any one or more instances, upon a strict
performance of any of the covenants, terms and conditions of this Lease or to
exercise any right or option herein contained shall not be construed as a waiver
or a relinquishment for the future, of such covenant, term, condition, right or
option, but the same shall continue and remain in full force and effect unless
the contrary is expressed by Landlord in writing. The receipt by Landlord of
rents hereunder, with knowledge of the breach of any covenant hereof or the
receipt by Landlord of less than the full rent due hereunder, shall not be
deemed a waiver of such breach or of Landlord's right to receive the full rents
hereunder, and no waiver by Landlord of any provision hereof shall be deemed to
have been made unless expressed in writing and signed by Landlord.
20.6. PERSISTENT FAILURE TO PAY RENT. In addition to any other remedies
available to Landlord pursuant to this Lease or by law, Landlord may, at any
time throughout the Term of this Lease, terminate this Lease upon Tenant's
default on three (3) separate occasions during any twelve (12) month period
under subsection 20.1.a, regardless of whether or not such prior defaults have
been cured. Termination, pursuant to this subsection 20.6, shall be effective
upon Landlord's delivery to Tenant of a notice of termination.
21. Intentionally deleted.
22. INDEMNITY.
To the maximum extent permitted by law, Tenant shall indemnify, hold
harmless and (at Landlord's option) defend Landlord, its agents, servants and
employees from and against all claims, actions, losses, costs and expenses
(including attorneys' and other professional fees), judgments, settlement
payments, and, whether or not reduced to final judgment, all liabilities,
damages, or fines paid, incurred or suffered by any third parties to the extent
arising directly or indirectly from (a) any default by Tenant under the terms of
this Lease, (b) the use or occupancy of the Property by Tenant or any person
claiming through or under Tenant, and/or (c) any acts or omissions of Tenant or
any contractor, agent, employee, invitee or licensee of Tenant in or about the
Property. The foregoing indemnity is in addition to, and not in substitution
for, any indemnity given by Tenant to Landlord under Section 8.3.
To the maximum extent permitted by law, Landlord shall indemnify, hold
harmless and defend Tenant, its agents, servants and employees from and against
all claims, actions, losses, costs and expenses (including attorneys' and other
professional fees), judgments, settlement payments, and, whether or not reduced
to final judgment, all liabilities, damages, or fines paid, incurred or suffered
by said third parties to the extent arising directly or indirectly from (a) any
default by Landlord under the terms of this Lease, (b) the use or occupancy of
the Common Area by Landlord or its contractors, agents, or employees, and/or (c)
any acts or omissions of Landlord or any contractor, agent, or employee of
Landlord in or about the Common Area.
23. LIMITATION ON LANDLORD LIABILITY.
The term "Landlord" as used in this Lease shall mean only the owner or the
Mortgagee or its trustees, as the case may be, then in possession of the
Property so that in the event of any transfer by Landlord of its interest in the
Property, the Landlord in possession immediately prior to such transfer shall
be, and hereby is, entirely released and discharged from all covenants,
obligations and liabilities of Landlord under this Lease accruing after such
transfer provided that such new owner assumes all of Landlord's obligations
under the Lease. In consideration of the benefits accruing hereunder, Tenant,
for itself, its successors and assigns, covenants and agrees that, in the event
of any actual or alleged failure, breach or default hereunder by the Landlord,
and notwithstanding anything to the contrary contained elsewhere in this Lease,
the remedies of Tenant under this Lease shall be solely and exclusively limited
to Landlord's interest in the Property and where applicable, proceeds from sale.
24. LANDLORD AND TENANT OBLIGATIONS.
Landlord agrees to perform all of its obligations under this Lease in a
first class manner consistent with the standards applicable to similar buildings
in the vicinity of the Building. Landlord and Tenant shall be excused for the
period of any delay in the performance of any of its obligations (except for
monetary obligations) when the delay is due to any cause or causes beyond it's
control which include, without limitation, acts of God, all labor disputes,
governmental regulations or controls, civil unrest, war, adverse weather
condition, fire or other casualty, inability to obtain any material, services,
or financing unless otherwise provided for in this Lease. Except where
specifically set forth in this Lease, there shall be no abatement, set-off or
deduction of Annual Basic Rent or Additional Rent due under this Lease.
25. ASSIGNMENT AND SUBLETTING.
25.1. PROHIBITED WITHOUT LANDLORD'S CONSENT. Tenant agrees for itself and
its permitted successors and assigns in interest hereunder that it will not (a)
assign or otherwise transfer, mortgage or otherwise encumber this Lease or any
of its rights hereunder; (b) sublet the Premises or any part thereof or permit
the occupancy or use of the Premises or any part thereof by any person other
than Tenant; and/or (c) permit the assignment or other transfer of this Lease or
any of Tenant's rights hereunder by operation of law (each of the events
referred to in the foregoing clauses (a), (b) and (c) being hereinafter referred
to as a "Transfer"), without the prior written consent of Landlord in each
instance first obtained, which consent may be given or withheld in Landlord's
sole and absolute subjective discretion, and any consent given shall not
constitute a consent to any subsequent Transfer. Any attempted Transfer without
Landlord's consent shall be null and void and shall not confer any rights upon
any purported transferee, assignee, mortgagee, sublessee, or occupant. No
Transfer, regardless of whether Landlord's consent has been granted or withheld,
shall be deemed to release
Tenant from any of its obligations hereunder or to alter, impair or release the
obligations of any person guaranteeing the obligations of Tenant hereunder.
Tenant hereby indemnifies Landlord against liability resulting from any claim
made against Landlord by any assignee or subtenant or by any broker claiming a
commission in connection with the proposed Transfer. In the event Landlord shall
consent to a Transfer of this Lease, any option which Tenant may have to renew
the Term shall be null and void unless Tenant continues to occupy at least fifty
percent (50%) of the Premises.
Notwithstanding the foregoing, Landlord shall not unreasonably
withhold its consent to a sublet or assignment of this Lease by Tenant provided
that: (a) the proposed transferee has a financial capacity and net worth
sufficient to fulfill the terms of this Lease, as determined by Landlord based
on financial information about such transferee provided by Tenant or such
transferee; (b) the proposed use of the Premises by the proposed transferee is
permitted by this Lease and is compatible with the operation of the Building;
(c) the proposed transferee is not an existing tenant in the Building or was not
a prospect for the Building within six (6) months prior to the proposed
Transfer, and (d) an Event of Default does not exist under this Lease.
Provided Tenant is not in default of any term, covenant or condition
of this Lease, Tenant shall have the right to assign this Lease or sublet the
Premises to a parent, subsidiary or affiliate corporation of Tenant as long as
the proposed transferee has a financial capacity and net worth equal to Tenant
without the consent of Landlord. Tenant shall deliver written notice to Landlord
of any such Transfer. The foregoing waiver of right to consent does not
constitute a waiver of the right of Landlord to consent to any Transfer not
specifically permitted hereby.
25.2. STOCK TRANSFER. If Tenant or any Guarantor is a privately-held
corporation, then each of the following events shall be deemed a prohibited
Transfer under this Section 25 if such event results in a change in control of
Tenant or Guarantor: any transfer of Tenant's or Guarantor's issued and
outstanding capital stock; any issuance of additional capital stock; or the
redemption of any issued and outstanding stock. If Tenant or any Guarantor is a
partnership, any Transfer of any interest in the partnership or any other change
in the composition of the partnership, which results in a change in management
of Tenant or Guarantor from the person or persons managing the partnership as of
the date hereof, shall be deemed a prohibited Transfer under this Section 25.
25.3. RENTS FROM TRANSFER. In the event Landlord shall consent to a
Transfer of this Lease and the amount of the rents (or other compensation) to be
paid to Tenant by any such transferee is greater than the rents required to be
paid by Tenant to Landlord pursuant to this Lease or a premium is to be paid to
Tenant for an assignment of this Lease, Tenant shall pay to Landlord fifty
percent (50%) of any such excess or any such premium, as the case may be, less
(a) any improvement allowance or other economic concession (planning allowance,
moving expense, etc.), paid by Tenant to sublessee; (b) broker's commissions;
(c) reasonable attorneys' fees; and (d) costs of advertising and/or promoting
the space for sublease, upon receipt thereof by Tenant from such transferee.
25.4. PROCEDURE FOR OBTAINING LANDLORD'S CONSENT.
A. In the event that, at any time or from time to time prior to or during
the Term, Tenant desires to Transfer this Lease in whole or in part, whether by
operation of law or otherwise, Tenant shall submit to Landlord for its
consideration (a) in writing, the name and address of the proposed subtenant or
assignee, a reasonably detailed statement of the proposed subtenant's or
assignee's business and reasonably detailed financial references and information
concerning the financial condition of the proposed subtenant or assignee, (b) a
disclosure of the rents to be paid by any subtenant in excess of the rents
reserved hereunder or the premium to be paid for the assignment, and (c) if a
subletting, a description of the area of the Premises to be sublet. Tenant
agrees to pay Landlord, as Additional Rent, all costs incurred by Landlord in
connection with any actual or proposed Transfer, including, without limitation,
the costs of making investigations as to the acceptability of a proposed
subtenant or assignee and legal costs incurred in connection with any requested
consent.
B. Landlord's consent to an assignment of this Lease shall be effective
upon the execution by Tenant, the assignee, and Landlord of an assignment
document prepared by Landlord in which the assignee shall agree to assume,
observe, perform, and be bound by, all of Tenant's obligations under this Lease
and Tenant shall agree to remain primarily liable for such obligations.
Any consent by Landlord to a subletting of all or a portion of the
Premises shall be deemed to have been given only upon the delivery by Landlord
to Tenant of a consent document prepared and executed by Landlord expressly
consenting to such subletting.
26. HOLDING OVER.
Tenant agrees to vacate the Premises at the end of the Term, and Landlord
shall be entitled to the benefit of all summary proceedings to recover
possession of the Premises at the end of the Term. If Tenant remains in
possession of the Premises after the expiration of the Term, such action shall
not renew this Lease by operation of law and nothing herein shall be deemed as a
consent by Landlord to Tenant's remaining in the Premises. If Tenant fails to
vacate the Premises as required, Landlord may consider Tenant as either (a) a
"Tenant-at-Will" (i.e. month-to-month tenant) liable for the payment of rent at
the then market rate as reasonably determined by Landlord or (b) as a
"Tenant-Holding Over" liable for an amount equal to the actual damages incurred
by Landlord as a result of Tenant's holding over, including, without limitation,
all incidental, prospective and consequential damages and attorney's fees, but
in no event shall such amount be less than an amount equal to one hundred fifty
percent (150%) of the Annual Basic Rent, and Additional Rent, reserved hereunder
applicable to the period of the holdover. In either event, all other covenants
of this Lease shall remain in full force and effect.
27. SUBORDINATION AND ATTORNMENT.
This Lease is subject and subordinate to the liens of all mortgages, deeds
of trust and other security instruments hereafter placed upon the Building or
the Property or any portion thereof and all ground and other underlying leases
from which Landlord's interest is derived (said mortgages, deeds of trust, other
security instruments, and ground leases being hereinafter referred to as
"Mortgages" and the mortgagees, beneficiaries, secured parties, and ground
lessors thereunder from time to time being hereinafter called "Mortgagees"), and
to any and all renewals, extensions, modifications, or refinancings thereof,
without any further act of the Tenant. If requested by Landlord, however, Tenant
shall promptly execute any certificate or other document confirming such
subordination. Tenant agrees that, if any proceedings are brought for the
foreclosure of any of the Mortgages, Tenant, if requested to do so by the
purchaser at the foreclosure sale, shall attorn to the purchaser, recognize the
purchaser as the landlord under this Lease, and make all payments required
hereunder to such new landlord without any deduction or set-off of any kind
whatsoever. Tenant waives the provisions of any law or regulation, now or
hereafter in effect, which may give, or purport to give, Tenant any right to
terminate this Lease or to alter the obligations of Tenant hereunder in the
event that any such foreclosure or termination or other proceeding is prosecuted
or completed.
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Notwithstanding anything contained herein to the contrary, any Mortgagee
may at any time subordinate the lien of its Mortgages to the operation and
effect of this Lease without obtaining the Tenant's consent thereto, by giving
the Tenant written notice thereof, in which event this Lease shall be deemed to
be senior to such Mortgages without regard to the respective dates of execution
and/or recordation of such Mortgages and this Lease and thereafter such
Mortgagee shall have the same rights as to this Lease as it would have had were
this Lease executed and delivered before the execution of such Mortgages. Upon
Tenant's written request, Landlord shall use reasonable efforts, excluding the
payment of money, to obtain a subordination of mortgage agreement from
Landlord's Mortgagee with respect to this Lease. Landlord agrees to submit to
such Mortgagee on Tenant's behalf the form of agreement attached hereto as
SCHEDULES D-1 and D-1, however, Landlord makes no representation that its
Mortgagee will execute any such agreement.
If, in connection with obtaining financing for the Building, a Mortgagee
shall request reasonable modifications in this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay or defer its consent
thereto, provided that such modifications do not materially adversely increase
the obligations of Tenant hereunder, or materially adversely affect the
leasehold interest hereby created or Tenant's use and enjoyment of the Premises,
or increase the amount of Annual Basic Rent and Additional Rent payable
hereunder.
28. ESTOPPEL CERTIFICATES.
Tenant shall, without charge, at any time and from time-to-time, within
fifteen (15) days after receipt of request therefor by Landlord, execute,
acknowledge and deliver to Landlord a written estoppel certificate, in such form
as may be determined by Landlord, certifying to Landlord, Landlord's Mortgagee,
any purchaser of Landlord's interest in the Building, or any other person
designated by Landlord, as of the date of such estoppel certificate, the
following, without limitation: (a) whether Tenant is in possession of the
Premises; (b) whether this Lease is in full force and effect; (c) whether there
have been any amendments to this Lease, and if so, specifying such amendments;
(d) whether there are then existing any set-offs 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 charges have been paid
in advance and the amount of any Security Deposit held by Landlord; (f) that
Tenant has no knowledge of any then existing defaults of Landlord under this
Lease, or if there are such defaults, specifying them in detail; (g) that Tenant
has no knowledge of any event having occurred that authorizes the termination of
this Lease by Tenant, or if such event has occurred, specifying it in detail;
and (h) the address to which notices to Tenant under this Lease should be sent.
Any such 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 Tenant to execute,
acknowledge and deliver such a certificate in accordance with this Section 28
within fifteen (15) days after a request therefor by Landlord shall constitute
an acknowledgment by Tenant, which may be relied on by any person who would be
entitled to rely upon any such certificate, that such certificate as submitted
by Landlord to Tenant is true and correct.
29. PEACEFUL AND QUIET POSSESSION.
Tenant, if and so long as it pays all rents due hereunder and performs and
observes the other terms and covenants to be performed and kept by it as
provided in this Lease, shall have the peaceable and quiet possession of the
Premises during the Term free of any claims of Landlord or anyone lawfully
claiming by, through or under Landlord, subject, however, to the terms of this
Lease and to matters of public record existing as of the date of this Lease.
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30. LANDLORD'S ACCESS TO PREMISES.
Landlord and its agents may at any reasonable time and without incurring
any liability to Tenant, other than liability for personal injuries and damages
resulting solely from the negligence of Landlord or its agents, enter the
Premises to inspect them or to make alterations or repairs or for any purpose
which Landlord considers necessary for the repair, operation, or maintenance of
the Building; provided, however, that in the case of an emergency, Landlord may
enter the Premises at any time. Tenant shall allow the Premises to be exhibited
by Landlord (a) at any time to any representative of a lender or to any
prospective purchaser of the Building or Landlord's interest therein or (b)
within six (6) months of the end of the Term to any persons who may be
interested in leasing the Premises.
31. Intentionally deleted.
32. BROKERS, COMMISSIONS, ETC.
Landlord and Tenant acknowledge, represent and warrant each to the other
that, except as listed in Section 1.F., no broker or real estate agent brought
about or was involved in the making of this Lease and that no brokerage fee or
commission is due to any other party as a result of the execution of this Lease.
Each of the parties hereto agrees to indemnify and hold harmless the other
against any claim by any broker, agent or finder based upon the execution of
this Lease and predicated upon a breach of the above representation and
warranty.
33. RECORDATION.
Neither Landlord nor Tenant shall record this Lease, any amendment to this
Lease or any other memorandum of this Lease without the prior written consent of
the other party, which consent may be withheld in the sole discretion of either
party and, in the event such consent is given, the party requesting such consent
and recording shall pay all transfer taxes, recording fees and other charges in
connection with such recording. Notwithstanding the above, Tenant covenants that
if at any time any mortgagee or ground lessor relating to the financing of the
Property shall require the recordation of this Lease, or if the recordation of
this Lease shall be required by any valid governmental order, or if any
governmental authority having jurisdiction in the matter shall assess and be
entitled to collect transfer taxes, documentary stamp taxes, or both, on this
Lease, Tenant, upon the request of Landlord, shall execute such instruments,
including a Memorandum of this Lease, as may be necessary to record this Lease,
and shall pay all recording fees, transfer taxes and documentary stamp taxes,
payable on, or in connection with, this Lease or such recordation; provided,
however, if Landlord's Mortgagee requires such recordation, Landlord shall pay
all such recording fees, transfer taxes and documentary stamp taxes.
34. MISCELLANEOUS.
34.1. SEPARABILITY. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
34.2. APPLICABLE LAW. This Lease shall be given effect and construed
by application of the laws of the state where the Property is located, and
any action or proceeding arising hereunder shall be brought in the courts of
the State where the Premises are located.
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34.3. AUTHORITY. If Tenant is a corporation or partnership, the person
executing this Lease on behalf of Tenant represents and warrants that Tenant is
duly organized and validly existing; that this Lease has been authorized by all
necessary parties, is validly executed by an authorized officer or agent of
Tenant and is binding upon and enforceable against Tenant in accordance with its
terms.
The undersigned agent of Landlord represents and warrants that it is
authorized and empowered to enter into this Lease Agreement on behalf of the
Landlord.
34.4. NO DISCRIMINATION. It is Landlord's policy to comply with all
applicable state and federal laws prohibiting discrimination in employment based
on race, age, color, sex, national origin, disability, religion, or other
protected classification. It is further intended that the Building shall be
operated so that all perspective tenants thereof, and all customers, employees,
licensees and invitees of all tenants shall have equal opportunity to obtain all
the goods, services, accommodations, advantages, facilities and privileges of
the Building without discrimination because of race, age, color, sex, national
origin, disability, or religion. To that end, Tenant shall not discriminate in
the conduct and operation of its business in the Premises against any person or
group of persons because of the race, age, color, sex, religion, national origin
or other protected classification of such person or group of persons.
34.5. INTEGRATION OF AGREEMENTS. This writing is intended by the parties
as a final expression of their agreement and is a complete and exclusive
statement of its terms, and all negotiations, considerations and representations
between the parties hereto are incorporated herein. No course of prior dealings
between the parties or their agents shall be relevant or admissible to
supplement, explain, or vary any of the terms of this Lease. Acceptance of, or
acquiescence to, a course of performance rendered under this Lease or any prior
agreement between the parties or their agents shall not be relevant or
admissible to determine the meaning of any of the terms or covenants of this
Lease. Other than as specifically set forth in this Lease, no representations,
understandings or agreements have been made or relied upon in the making of this
Lease. This Lease can only be modified by a writing signed by each of the
parties hereto.
34.6. THIRD PARTY BENEFICIARY. Except as expressly provided elsewhere
in this Lease, nothing contained in this Lease shall be construed so as to
confer upon any other party the rights of a third party beneficiary.
34.7. CAPTIONS; GENDER. The captions used in this Lease are for
convenience only and do not in any way limit or amplify the terms and provisions
hereof. As used in this Lease and where the context so requires, the singular
shall be deemed to include the plural and the masculine shall be deemed to
include the feminine and neuter, and vice versa.
34.8. SUCCESSORS AND ASSIGNS. Subject to the express provisions of this
Lease to the contrary (e.g., Section 25), the terms, provisions and covenants
contained in this Lease shall apply to, inure to the benefit of, and be binding
upon the parties hereto and their respective heirs, personal representatives,
successors and assigns.
34.9. WAIVER OF JURY TRIAL. Landlord and Tenant hereby expressly waive
trial by jury in any action or proceeding or counterclaim brought by either
party hereto against the other party on any and every matter, directly or
indirectly arising out of or with respect to this Lease, including, without
limitation, the relationship of Landlord and Tenant, the use and occupancy by
Tenant of the Premises, any statutory remedy and/or claim of injury or damage
regarding this Lease.
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34.10. JOINT AND SEVERAL LIABILITY. In the event that two (2) or more
persons (i.e., natural persons, corporations, partnerships, associations and
other legal entities) shall sign this Lease as Tenant, the liability of each
such party to pay all rents due hereunder and perform all the other covenants of
this Lease shall be joint and several. In the event Tenant is a general
partnership or a limited partnership with two or more general partners, the
liability of each partner, or general partner, under this Lease shall be joint
and several.
34.11. NOTICES. All notices, demands and requests required under this
Lease shall be in writing. All such notices, demands and requests shall be
deemed to have been properly given if sent by United States certified mail,
return receipt requested, postage prepaid, or hand delivered, or overnight
delivery, addressed to Landlord or Tenant, at the Landlord Notice Address and
Tenant Notice Address, respectively. Either party may designate a change of
address by written notice to the other party, in the manner set forth above.
Notice, demand and requests which shall be served by certified mail in the
manner aforesaid, shall be deemed to have been given three (3) days after
mailing. Notices sent by overnight delivery shall be deemed to have been given
the day after sending. Without intending to limit the generality of the
foregoing requirement that all notices, demands and requests be in writing,
there are certain provisions in this Lease where, for emphasis alone, such
requirement is reiterated.
34.12. EFFECTIVE DATE OF THIS LEASE. Unless otherwise expressly
provided, all terms, conditions and covenants by Tenant contained in this
Lease shall be effective as of the date first above written.
34.13. MECHANICS' LIENS. In the event that any mechanics' or materialmen's
liens shall at any time be filed against the Premises purporting to be for work,
labor, services or materials performed or furnished to Tenant or anyone holding
the Premises through or under Tenant, Tenant shall cause the same to be
discharged of record or bonded within thirty (30) days after the filing thereof.
If Tenant shall fail to cause such lien to be discharged within thirty (30) days
after the filing thereof, then, in addition to any other right or remedy of
Landlord, Landlord may, but shall not be obligated to, discharge the same by
paying the amount claimed to be due; and the amount so paid by Landlord, and all
costs and expenses, including reasonable attorneys' fees incurred by Landlord in
procuring the discharge of such lien, shall be due and payable by Tenant to
Landlord, as Additional Rent, on the first day of the next succeeding month.
Notice is hereby given that Landlord shall not be liable for any labor or
materials furnished to Tenant upon credit and that no mechanics', materialmen's
or other liens for any such labor or materials shall attach to or affect the
estate or interest of Landlord in and to the land and improvements of which the
Premises are a part.
34.14. WAIVER OF RIGHT OF REDEMPTION. Tenant hereby expressly waives (to
the extent legally permissible) for itself and all persons claiming by, through
or under it, any right of redemption or right to restore the operation of this
Lease under any present or future law in the event Tenant is dispossessed for
any proper cause, or in the event Landlord shall obtain possession of the
Premises pursuant to the terms of this Lease. Tenant understands that the
Premises are leased exclusively for business, commercial and mercantile purposes
and therefore shall not be redeemable under any provision of law.
34.15. MORTGAGEE'S PERFORMANCE. If requested by any Mortgagee, Tenant
shall give such Mortgagee written notice of any default by Landlord under this
Lease and a reasonable opportunity to cure such default. Tenant shall accept
performance of any of Landlord's obligations hereunder by any ground lessor or
mortgagee relating to the financing of the Property.
34.16. MORTGAGEE'S LIABILITY. No mortgagee or ground lessor relating
to the financing of the Property, not in possession of the Premises or the
Building, shall have any liability whatsoever hereunder.
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34.17. SCHEDULES. Each writing or plat referred to herein as being
attached hereto as a schedule or exhibit is hereby made a part hereof, with the
same full force and effect as if such writing or plat were set forth in the body
of this Lease.
34.18. TIME OF ESSENCE. Time shall be of the essence of this Lease
with respect to the performance by Tenant of its obligations hereunder.
34.19. AMENDMENT. This Lease may be amended by and only by an instrument
executed and delivered by each party hereto. No amendments of this Lease entered
into by Landlord and Tenant, as aforesaid, shall impair or otherwise affect the
obligations of any guarantor of Tenant's obligations hereunder, all of which
obligations shall remain in full force and effect and pertain equally to any
such amendments, with the same full force and effect as if the substance of such
amendments was set forth in the body of this Lease.
34.20. AUTOMOBILE PARKING. Landlord shall provide unreserved parking for
Tenant and its customers and employees and customers either in structured or
surface parking areas near the Building at a ratio of four (4) spaces per one
thousand (1,000) square feet of the Premises.
34.21. CONTINGENCY. Tenant acknowledges and understands that this Lease is
contingent upon the existing tenant for the Premises, SSM Coal North America,
Inc., surrendering and releasing the Premises on or before December 31, 1995. In
the event Landlord is unable to deliver the Premises to Tenant on January 1,
1996, the Lease Commencement Date shall be delayed until the date when Landlord
delivers the Premises to Tenant, and the Termination Date shall be adjusted
accordingly. Landlord shall have no liability to Tenant for any delay in
delivery of the Premises.
If Landlord, despite its reasonable good-faith efforts, in unable to
deliver the Premises to Tenant on or before June 1, 1996, this Lease will
automatically terminate and the rights and obligations of the parties hereunder
shall thereupon cease and terminate without the need for the execution of any
further or other instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Lease under
their respective seals as of the day and year first above written.
ATTEST: LANDLORD:
COLUMBIA MALL, INC.
By: COLUMBIA MANAGEMENT, INC.,
Managing Agent
----------------------------------
By:_____________________________(SEAL)
Assistant Secretary Vice President
ATTEST: TENANT:
EXCALIBUR TECHNOLOGIES
CORPORATION
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----------------------------------
By:_____________________________(SEAL)
Secretary of Corporation President
SCHEDULE C
RULES AND REGULATIONS
1. Tenant shall not obstruct or encumber the Common Area, and the
sidewalks, driveways, and other public portions of the Property (herein "Public
Areas") and such Public Areas shall not be used for any purpose other than
ingress and egress to and from its Premises. Tenant shall not permit any of its
employees, agents, licensees or invitees to congregate or loiter in any of the
Public Areas. Tenant shall not invite to, or permit to visit, its Premises
persons in such numbers or under such conditions as may interfere with the use
and enjoyment by others of the Public Areas. Fire exits and stairways are for
emergency use only, and they shall not be used for any other purpose. Landlord
reserves the right to control, operate, restrict and regulate the use of the
Common Areas, public facilities, and any facilities furnished for the common use
of the tenants in such manner as it deems best for the benefit of the tenants,
including but not limited to the allocation of elevators for delivery service,
and the right to designate which Building entrances shall be used for
deliveries. No doormat of any kind whatsoever shall be placed or left in any
public hall or outside any entry door of the Premises.
2. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens shall be attached to,
hung in, or used in connection with any window or door of its Premises, without
the consent of Landlord. Such window or door coverings must be of a quality,
type, design and color approved by Landlord and further they must be installed
in a manner approved by Landlord. In order that the Building can and will
maintain a uniform appearance to those persons outside of the Building, each
tenant occupying the perimeter areas of the Building shall (a) use only
building-standard lighting in areas where lighting is visible from the outside
of the Building and (b) use only building-standard blinds in window areas which
are visible from the outside of the Building.
3. Tenant shall be permitted an interior sign in accordance with the
Building's sign criteria which Landlord shall provide at its sole cost. Except
as set forth herein, no sign, insignia, advertisement, lettering, notice or
other object shall be exhibited, inscribed, painted or affixed by Tenant on any
part of the exterior or interior of the Premises or the Building or on doors,
corridor walls, the Building directory or in the elevator cabs without the prior
approval of Landlord. Landlord shall review the size, color, style, content and
location of any proposed signage. Landlord shall have the right to prohibit any
advertising or identifying sign by Tenant which, in the sole judgment of
Landlord, impairs the appearance, reputation, or the desirability of the
Building as a first-class office building. Upon Landlord's approval, Tenant
shall obtain all necessary approvals and permits from governmental or
quasi-governmental authorities in connection with such signs. Further, approved
signs shall be inscribed, painted or affixed by signmakers approved by Landlord
at Tenant's sole cost. In the event of a violation of the foregoing by Tenant,
upon written notice from Landlord, Tenant shall refrain from and discontinue
such advertising or identifying sign. In the event that Tenant does not promptly
correct said violation, Landlord may remove such signs without any liability,
and may charge the expense incurred in such removal to the Tenant violating this
Rule and Tenant hereby agrees to pay Landlord, as Additional Rent, any such
expense promptly upon demand.
4. No bicycles, vehicles, animals (except seeing eye dogs), fish or birds
of any kind shall be brought into or kept in or about the Premises.
5. Nothing shall be done or permitted by Tenant which would impair or
interfere with the use or enjoyment by any other occupant of the Building,
including the playing of music.
6. Nothing shall be done or permitted in the Premises and nothing shall be
brought into, installed or kept in or about the Premises, which would impair or
interfere with any of the HVAC, plumbing, electrical, structural components of
the Building or the services of the Building or the proper and economic heating,
cleaning or other services of the Building or the Premises. Tenant nor its
employees, agents, licensees or invitees shall at any time bring or keep upon
the Premises any flammable, combustible or explosive fluid, chemical or
substance.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in locks or the
mechanism thereof. Duplicate keys for the Premises and restrooms shall be
procured only from Landlord and Landlord may make a reasonable charge therefor.
Tenant shall, upon the termination of the Lease, turn over to Landlord all keys
to stores, offices and restrooms. In the event of the loss of any keys furnished
by Landlord, Tenant shall pay to Landlord the cost of replacement locks and
Tenant hereby agrees to pay said cost to Landlord, as Additional Rent, promptly
upon demand.
8. Any delivery or moving of any safes, freight, furniture, packages,
boxes, crates or any other such object shall take place at such time and in such
manner so as not to interfere with other occupants of the Building. Tenant
hereby acknowledges that this may involve overtime work for Landlord's
employees. Further, Tenant hereby agrees to reimburse Landlord for extra costs
incurred by Landlord including, but not limited to, Landlord's right to inspect
all objects to be brought into the Building and to exclude from the Building any
objects which may in Landlord's sole discretion violate the Lease and/or any of
these Rules and Regulations. Tenant hereby agrees to pay any such costs to
Landlord, as Additional Rent, promptly upon demand.
No hand trucks shall be used for such moving activities except for those
equipped with rubber tires, side guards and such other safeguards as Landlord
shall require.
Landlord may require any person leaving the Building with any package or
other object to submit a statement indicating the tenant from whose premises the
package or object is being removed, however, Landlord and Tenant hereby
acknowledge that the establishment and enforcement of such requirement does not
impose any responsibility on Landlord for the protection of Tenant against the
removal of property from the Premises of Tenant. Landlord shall in no way be
liable to Tenant for damages or loss arising from the admission, exclusion or
ejection of any person to or from the Premises or the Building under the
provisions of this Rule.
9. Tenant shall not use or occupy its Premises, or permit any portion
thereof to be used or occupied for telephone or secretarial service, messenger
service, wholesale or discount shop for sale of merchandise, retail service
shop, labor union, company engaged in the business of renting office or desk
space, a hiring or employment agency, or for any use which constitutes a
nuisance, or is hazardous, or, in Landlord's opinion, likely to injure the
reputation of a first-class office building. No tenant shall engage or pay any
employee on its Premises, except those actually employed by such tenant, nor
advertise for laborers giving an address at the Building. Except as specifically
approved by Landlord in writing, no tenant shall use or permit the use of its
Premises or any part thereof as a restaurant, shop, booth or other stand, or for
the conduct of any business or occupation which predominantly involves direct
patronage of the general public, manufacturing, or the sale at auction of
merchandise, goods or property of any kind.
10. Tenant, before closing and leaving its Premises at any time, shall see
that all lights, typewriters, copying machines and other electrical equipment
are turned off. All entrance doors in Tenant's Premises shall be kept locked
when not in use. Entrance doors shall not be left open at any time.
11. If Tenant shall request Landlord to perform any work on the Premises
or Property, Tenant shall make such request at the management office for the
Building. Tenant shall not request employees of Landlord to perform any work or
do anything outside of their regular duties, unless under special instructions
from Landlord.
12. Canvassing, soliciting and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
13. Tenant shall not cause or permit any odors of cooking or other
processes, or any unusual or objectionable odors, to emanate from its Premises
which would annoy other tenants or create a public or private nuisance. No
cooking shall be done in Tenant's Premises, except for a household microwave
oven or as is expressly permitted in the Lease, or otherwise consented to in
writing by the Landlord.
14. All paneling, doors, trim or other wood products not considered
furniture shall be treated with fire-retardant materials. Before installation of
any such materials, certification of the materials' fire-retardant
characteristics shall be submitted to and approved by Landlord, and all such
materials shall be installed in a manner approved by Landlord.
15. Whenever Tenant submits any plan, agreement or other document for the
consent or approval of Landlord, Landlord may charge, on demand, a reasonable
processing fee for the review thereof, which shall include the cost of any
services of an architect, engineer or attorney employed by Landlord to review
such plan, agreement or document. Tenant hereby agrees to pay any such
processing fee to Landlord, as Additional Rent, promptly upon demand.
16. No contract of any kind with any supplier of towels, water, ice,
toilet articles, waxing, rug shampooing, venetian blind washing, furniture
polishing, lamp servicing, cleaning of electrical fixtures, removal of waste
papers, rubbish or garbage, or any other cleaning, janitorial or like service
shall be entered into by Tenant without the prior written consent of Landlord.
Landlord shall not be responsible to Tenant for any loss of property from
its Premises however occurring, or for any damage done to the effects of Tenant
by Landlord's janitors or any of its employees, or by any other person or any
other cause. The janitor's service furnished by Landlord does not include the
beating or cleaning of carpets or rugs.
17. When electric wiring of any kind is introduced, it must be connected
as directed by Landlord, and no stringing or cutting of wires will be allowed,
except with the prior written consent of Landlord, and shall be done only by
contractors approved by Landlord. The number and locations of telephones,
telegraph instruments, electric appliances, call boxes, etc., shall be subject
to Landlord's approval. Tenant shall not lay linoleum or other similar floor
covering so that the same shall be in direct contact with the floor of the
Premises; and if linoleum or other similar floor covering is desired to be used,
an interlining of builder's deadening felt shall be first affixed to the floor
by a paste or other material, the use of cement or other similar adhesive
material being expressly prohibited.
18. Landlord hereby reserves to itself any and all rights not granted to
Tenant hereunder, including, but not limited to, the following rights which are
reserved to Landlord for its purposes in operating the Building:
2
(a) the exclusive right to use of the name of the Building for all
purposes, except that Tenant may use the name as its business
address and for no other purpose;
(b) the right to change the name or address of the Building, without
incurring any liability to Tenant for so doing;
(c) the right to install and maintain a sign or signs on the exterior
of the Building;
(d) the exclusive right to use or dispose of the use of the roof of
the Building;
(e) the right to limit the space on the directory of the Building to
be allotted to Tenant; and
(f) the right to grant anyone the right to conduct any particular
business or undertaking in the Building.
19. Tenant and its employees shall park their cars only in those portions
of the parking area designated by Landlord.
20. Tenant shall not permit undue accumulations of garbage, trash, rubbish
or any other refuse, and will keep such refuse in proper containers in the
interior of the Tenant's Premises or other places designated by the Landlord.
21. Tenant shall not conduct or permit any bankruptcy sales, unless
directed by order of a court of competent jurisdiction, or any fictitious fire
or going out of business sale.
22. Landlord shall have the right to close and securely lock the Building
during generally accepted holidays and during such other times as Landlord may,
in its sole discretion, deem advisable for the security of the Building and its
tenants. Landlord shall give Tenant twenty-four (24) hours notice before so
closing and securely locking the Building except in an emergency.
23. Landlord reserves the right to rescind, alter, waive or add any rule
or regulation at any time prescribed for the Building when Landlord deems it
necessary or desirable for the reputation, safety, character, security, care,
appearance or interests of the Building, the preservation of good order therein,
the operation or maintenance of the Building or the equipment thereof, or the
comfort of tenants or others in the Building. No rescission, alteration, waiver
or addition of any rule or regulation with respect to one tenant shall operate
as a rescission, alteration or waiver in respect of any other tenant.
24. In the event of a conflict between the Rules and Regulations and the
terms of the Lease, the terms of the Lease shall govern the parties.
3
SCHEDULE X
METHOD OF BUILDING MEASUREMENT FOR OFFICE SPACE
I. SINGLE-TENANCY FLOORS
The Rental Area of a single-tenancy floor shall be the area within the
outside walls computed by measuring from the inside surface of the window glass
to the inside surface of the opposite window glass including columns and
projections necessary to the building as well as accessory areas within and
exclusively serving only that floor, with their enclosing walls, toilets,
janitors closets, electrical closets, air-conditioning rooms and fan rooms and
telephone closets, together with four percent (4%) of the sum so determined as a
"Common Area Factor". Rental Area will not include penetrations made by public
stairs, fire towers, public elevator shafts, flues, vents, stacks, pipe shafts
and vertical ducts.
II. DIVIDED FLOORS
The Rental Area of an individual office or a portion of a divided floor
shall be the area computed by measuring from the inside surface of the window
glass to the finished surface of the corridor side of corridor partitions and
from center to center of the partitions that separate the Premises from
adjoining Rental Areas including columns and projections necessary to the
Building together with twelve percent (12%) of the sum so determined as a
"Common Area Factor".
TABLE OF CONTENTS
SCHEDULES
A - Plat showing location of the Premises B - Plans and Specifications for
Tenant Improvements C - Rules and Regulations X - Method of Floor
Measurement
MARYLAND FULL-SERVICE OFFICE LEASE
30 COLUMBIA CORPORATE CENTER
by and between
COLUMBIA MALL, INC., Landlord
by COLUMBIA MANAGEMENT, INC., Managing Agent,
and
EXCALIBUR TECHNOLOGIES CORPORATION, Tenant
Dates Referenced Herein and Documents Incorporated by Reference
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