MARYLAND FULL-SERVICE OFFICE LEASE
SEVENTY COLUMBIA CORPORATE CENTER
THIS LEASE is made and entered into as of April 11, 2000 by and between
SEVENTY COLUMBIA CORPORATE CENTER LIMITED PARTNERSHIP, a Maryland limited
partnership ("Landlord") by ROUSE PROPERTY MANAGEMENT, INC., Managing Agent,
and EXCALIBUR TECHNOLOGIES CORP., 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 Seventy Columbia
Corporate Center and located at 11000 Broken Land Parkway, Columbia, Maryland
21044.
(2) Business Community: Columbia Town Center
(3) Premises: Approximately 18,371 square feet of Rental
Area on the eighth floor of the Building as shown on Schedule A.
(4) 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.
B. Rent
(1) Annual Basic Rent:
PSF Annual Monthly
Period Basic Rent Basic Rent Installment
Year 1: $24.50 $450,089.50 $37,507.46
Year 2: $25.24 $463,684.04 $38,640.34
Year 3: $26.00 $477,646.00 $39,803.83
Year 4: $26.78 $491,975.38 $40,997.95
Year 5: $27.58 $506,672.18 $42,222.68
(2) Advance Rent: None.
(3) Security Deposit: Thirty-seven Thousand Five Hundred
Seven Dollars and Forty-six Cents ($37,507.46) to be held by Landlord as
provided in Section 6.4.
C. Adjustments.
(4) Adjustment Period Consumer Price Index. Intentionally
omitted.
D. Term
(1) Term: Five (5) years, subject to Section 4.
(2) Lease Commencement Date: June 15, 2000, subject to
Section 4.
(3) Termination Date: June 14, 2005, subject to Section 4.
E. Notice and Payment
(1) Tenant Notice Address:
Ms. Nancy McKinley, Director of Human Resources and
Administration
Excalibur Technologies
1921 Gallows Road
Suite 200
Vienna, Virginia 22182
(2) Landlord Notice Address:
Columbia Management, Inc.
10420 Little Patuxent Parkway
Suite 420
Columbia, Maryland 21044
with a copy to:
Rouse Property Management, Inc.
c/o The Rouse Company
10275 Little Patuxent Pkwy
Columbia, Maryland 21044
Attention: General Counsel
(3) Landlord Payment Address:
Rouse Office Management, Inc.
P.O. Box 64078
Columbia, Maryland 21264-4078
F. Broker
The Manekin Corporation
7165 Columbia Gateway Drive
Columbia, Maryland 21046
and
Mr. David Cravedi
The Fred Ezra Company
4520 East West Highway
Bethesda, Maryland 20817
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
Alterations............................................................15.1
Annual Basic Rent.......................................................1.B
Bankruptcy Code........................................................19.1
Building................................................................1.A
Casualty...............................................................17.1
Common Area............................................................10.1
Default Rate............................................................6.5
Event of Default.......................................................20.1
Event of Tenant's Bankruptcy...........................................19.1
Insolvency Laws........................................................19.1
Landlord Notice Address.................................................1.E
Landlord Payment Address................................................1.E
Lease Commencement Date.................................................1.D
Mortgage.................................................................27
Mortgagee................................................................27
Premises................................................................1.A
Property................................................................1.A
Public Areas.....................................................Schedule C
Renewal Term............................................................4.3
Rental Area...............................................................3
Rental Year.............................................................6.1
Rules and Regulations.....................................................9
Security Deposit.....................................................1.B.(3)
Tenant Notice Address...................................................1.E
Tenant's Personal Property.............................................15.3
Term....................................................................4.1
Termination Date........................................................1.D.
Transfer.................................................................25
3. LEASED PREMISES; MEASUREMENT.
3.1. Leased Premises. 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.
4. TERM AND COMMENCEMENT OF TERM.
4.1. Term. The term of this Lease (the "Term") shall commence on the
Lease Commencement Date and 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. At
Landlord's request, Tenant shall promptly enter into one or more supplementary
written agreements, in such form as Landlord shall reasonably prescribe,
specifying the Lease Commencement Date and the Termination Date.
4.2. Option to Renew. Provided Tenant is in possession of the Premises
and is not in default of any term, covenant or condition of this Lease, Tenant
shall have the 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.
Said Renewal Term shall be 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 the "Prevailing Market Rate" and (ii) there
shall be no further option to renew except as specifically provided herein and
(iii) there shall be no abatement of rent, and (iv) 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. 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 the Premises or if 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. Delivery of Premises. Landlord shall deliver, and Tenant agrees to
accept, the Premises broom clean and in "as-is" condition. By occupying the
Premises, Tenant shall be deemed to have (a) accepted the Premises in their
present condition, (b) acknowledged that the Premises are suitable for Tenant's
intended use, and (c) agreed that Landlord shall not be required to make any
repairs or improvements to the Premises.
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. 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; Security Deposit.
A. Advance Rent. Intentionally Deleted.
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
forty-five (45) 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.
7. INTENTIONALLY OMITTED.
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 special or custom 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 property damage sustained by
other tenants or occupants of the Building, due to any waste, misuse or neglect
by Tenant 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. _ 6901 et seq.), the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. _ 9601 et seq.), the Clean Water Act
(33 U.S.C. _ 1251 et seq.), the Clean Air Act (42 U.S.C. _ 7401 et seq.), and
the Toxic Substances Control Act (15 U.S.C. _ 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, at Tenant's sole cost and expense 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 Tenant, its agents,
servants and employees.
Tenant shall indemnify, reimburse and hold harmless Landlord, its
partners and affiliates 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.
As of the Lease Commencement Date, Landlord warrants and represents to
Tenant that to Landlord's actual knowledge, there are no Hazardous Substances in
violation of any Environmental Laws 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 Laws. 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, reimburse and hold harmless and defend
Tenant, its 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 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 Property, which is intended to comply substantially 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" means
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. 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 reasonable control
and management of Landlord.
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, the cost
of such facilities and services to be included in 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 8:00 a.m. until 12:00 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 shall be given to Tenant on request. 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).
d. Cleaning in Landlord's standard manner attached hereto as
Schedule D.
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.
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.
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.
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 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.
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 personal items
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) repairs caused by the 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.
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, which such fee as of the Lease Commencement Date is thirteen and
a half percent (13.5%). 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.
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 Two Million Dollars ($2,000,000), combined single limit, with
respect to personal injury, bodily injury, including death, and property damage
and Four Million Dollars ($4,000,000) 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, 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, 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 commercial 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, 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. 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.
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. (A) If the Premises are (1) rendered wholly
untenantable, or (2) damaged as a result of any cause which is not covered by
Landlord's insurance, or (B) if the Building is damaged to the extent of fifty
percent (50%) or more of the gross leasable area thereof, or (C) 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 ninety (90) 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 after 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
unless Landlord, at its sole expense, temporarily relocates Tenant to comparable
office space within another building in the Business Community for the duration
of the restoration. In the event of such a relocation, the rent per square foot
payable by Tenant for the temporary space shall equal the lesser of (i) the
rents per square foot reserved under this Lease for the Premises or (ii) the
current market rental rate for the temporary space as determined by Landlord,
which shall not be more than the rate at which Landlord would offer such space
to any other third party.
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. Notwithstanding anything to the
contrary, Tenant shall be entitled to receive all proceeds payable with respect
to Tenant's Personal Property.
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.
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 ten (10) 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;
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 and Tenant (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.
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.
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.
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.
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 any third party 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. 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.
24. LANDLORD 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 when the delay
is due to any cause or causes beyond Landlord'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.
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 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.
Notwithstanding the foregoing, Landlord shall not unreasonably withhold
its consent to a transfer or change of ownership of the voting corporate stock
of Tenant which results in a change in control of Tenant, provided that (a) the
net assets of the Tenant are not substantially decreased by the change in the
corporate stock ownership; (b) Tenant, on demand from Landlord, properly
documents any changes in the net assets of Tenant caused by the change in
control of Tenant, so that Landlord can make an accurate judgment as to (a)
hereof; and (c) Tenant, after the change in control, continues to use the
Premises for uses permitted under this Lease and operates its business in a
manner which is consistent with the standards of operation for this Building.
The foregoing does not constitute a waiver of the right of Landlord to consent
to any subletting or any assignment.
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, 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 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 and 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 now or 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.
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.
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.
Upon Tenant's written request, Landlord shall use reasonable efforts,
excluding the payment of money, to obtain a non-disturbance agreement from
Landlord's Mortgagee with respect to this Lease. Landlord agrees to submit to
such Mortgagee on Tenant's behalf a non-disturbance agreement prepared by
Tenant, however, Landlord makes no representation that its Mortgagee will
execute any such agreement.
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.
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 arising under Section
22, 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.
Notwithstanding the foregoing, Landlord shall use reasonable efforts to
telephone Tenant twenty-four (24) hours prior to any inspection except in cases
of emergencies. Emergencies for the purpose of this Section shall be deemed to
mean anyone or anything in the Premises, Building and/or Common Area requiring
immediate response. In any event, Tenant agrees to cooperate when access to the
Premises is requested by Landlord.
31. Intentionally Omitted.
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.
Notwithstanding the forgoing, Landlord and Tenant acknowledge and agree
that Landlord shall not be responsible or liable for any brokerage commissions
resulting from this Lease.
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 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.
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.
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 or bonded
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.
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. Attorneys' Fees. Should Tenant file suit against Landlord in
order to enforce any of its rights under this Lease, then, provided Tenant
prevails, Landlord shall be responsible for Tenant's costs of said suit,
including reasonable attorneys' fees, as such fees are determined by a court of
competent jurisdiction.
34.21. Contingencies.
(A) Premises. Tenant acknowledges and understands that the Premises is currently
occupied by The Ryland Group, Inc. ("Ryland") and that this Lease is contingent
upon Ryland vacating, surrendering, and releasing the Premises.
Landlord shall not be liable for any delay in the Lease Commencement
Date as a result of Ryland's failure to vacate the Premises. In the event
Landlord shall not recapture the Premises by November 30, 2000, this Lease shall
become null and void and of no force and effect.
(B) Lender's Approval. Tenant acknowledges and understands that the
effectiveness of this Lease is contingent upon Landlord receiving the approval
of its lender.
34.22. Existing Lease. Landlord and Tenant agree that this Lease and
the terms, covenants and provisions contained herein shall be in addition to and
shall not supersede or replace any of the terms, covenants and provisions of
that existing Lease between Landlord and Tenant dated January 9, 1996 ("Existing
Lease"). Both parties agree that the terms, covenants and conditions of the
Existing Lease shall remain the same and continue in full force and effect and
shall be deemed unchanged.
34.23. Parking. During the Term, Landlord shall provide unreserved
parking for Tenant and its employees and customers either in structured or
surface parking areas near the Building at a ratio of four (4) parking spaces
per one thousand (1,000) square feet of Rental Area at no additional charge.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
ATTEST: LANDLORD:
SEVENTY COLUMBIA CORP CTR LIMITED PARTNERSHIP
By: ROUSE PROPERTY MGMT, INC., Managing Agent
/s/Signature By: /s/Signature (SEAL)
- ---------------------------- -----------------------------
Assistant Secretary Vice President
ATTEST: TENANT:
EXCALIBUR TECHNOLOGIES CORP.
/s/Nancy McKinley By: /s/James Buchanan (SEAL)
- ---------------------------- -----------------------------
Secretary of Corporation President
MARYLAND FULL-SERVICE OFFICE LEASE
SEVENTY COLUMBIA CORPORATE CENTER
by and between
SEVENTY COLUMBIA CORPORATE CENTER LIMITED PARTNERSHIP, Landlord
by ROUSE PROPERTY MANAGEMENT, INC., Managing Agent,
and
EXCALIBUR TECHNOLOGIES CORP., Tenant
SCHEDULE C
RULES AND REGULATIONS
1. Tenant shall not obstruct 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. Fire exits and stairways are for emergency use
only, and they shall not be used for any other purpose.
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 the Premises.
3. Except as otherwise provided in the Lease, 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.
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 which would impair or interfere with any of
the HVAC, plumbing, electrical, structural components of the Building. No
flammable, combustible or explosive fluid, chemical or substance may be kept on
the Premises.
6. 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. 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.
7. No delivery or moving of any safes, freight, furniture, packages,
boxes, crates or any other such object shall take place between 8:30 a.m. and
5:30 p.m., Monday through Friday.
No hand trucks shall be used for such moving activities except for
those equipped with rubber tires and side guards.
8. Tenant shall not use or occupy its Premises, or permit any portion
thereof to be used or occupied for any use which constitutes a nuisance, or is
hazardous, or, in Landlord's opinion, likely to injure the reputation of a
first-class building.
9. Tenant shall turn off all lights, copying machines and other
electrical equipment when the Premises are vacant. 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.
10. 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.
11. Canvassing, soliciting and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
12. 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.
13. No contract of any kind involving the care and maintenance of the
Premises shall be entered into by Tenant without the prior written consent of
Landlord. Further, no vending machine of any kind shall be installed in the
Building or on or about the Property 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.
14. All electrical work must be in accordance with code and is subject
to Landlord's review and approval.
15. 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:
(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 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.
16. Tenant and its employees shall park their cars only in those
portions of the parking area designated by Landlord.
17. 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.
18. 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.
19. 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.
20. 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.
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".