(10)(i) Lease between the Company and Commons Office Research dated June 11,
2001.
AGREEMENT OF LEASE
by and between
COMMONS OFFICE RESEARCH, LLC
Landlord
and
DIALYSIS CORPORATION OF AMERICA
Tenant
(1344 Ashton Road, Suite 201)
AGREEMENT OF LEASE
COMMONS OFFICE RESEARCH, LLC ("LANDLORD")
DIALYSIS CORPORATION OF AMERICA ("TENANT")
TABLE OF CONTENTS PAGE
----------------- ----
1. Definitions and Attachments ....................................... 1
2. Demise ............................................................ 3
3. Term .............................................................. 3
4. Security Deposit and Advance Rent ................................. 4
5. Use ............................................................... 4
6. Rent .............................................................. 4
7. Requirements of Applicable Law .................................... 7
8. Certificate of Occupancy .......................................... 8
9. Contest-Statute, Ordinance, Etc. .................................. 8
10. Tenant's Improvements ............................................. 8
11. Repairs and Maintenance ........................................... 8
12. Conduct on Premises ............................................... 10
13. Insurance ......................................................... 10
14. Rules and Regulations ............................................. 11
15. Mechanics' Liens .................................................. 11
16. Tenant's Failure to Repair ........................................ 11
17. Property -- Loss, Damage .......................................... 12
18. Destruction -- Fire or Other Casualty ............................. 12
19. Eminent Domain .................................................... 12
20. Assignment ........................................................ 12
21. Default; Remedies; Bankruptcy of Tenant ........................... 13
22. Damages ........................................................... 15
23. Services and Utilities ............................................ 15
24. Electric Current .................................................. 16
25. Telephone and Telecommunications Equipment ........................ 17
26. Acceptance of Premises ............................................ 17
27. Inability to Perform .............................................. 17
28. No Waivers ........................................................ 18
29. Access to Premises and Change in Services ......................... 18
30. Estoppel Certificates ............................................. 18
31. Subordination ..................................................... 18
32. Attornment ........................................................ 18
33. Notices ........................................................... 19
34. Relocation ........................................................ 19
35. Tenant's Space .................................................... 19
36. Quiet Enjoyment ................................................... 20
37. Vacation of Premises .............................................. 20
38. Members' Liability ................................................ 20
39. Separability ...................................................... 20
40. Indemnification ................................................... 20
41. Captions .......................................................... 21
42. Brokers ........................................................... 21
43. Recordation ....................................................... 21
44. Successors and Assigns ............................................ 21
45. Integration of Agreement .......................................... 22
46. Hazardous Materials; Indemnity .................................... 22
47. Americans with Disabilities Act ................................... 22
48. Several Liability ................................................. 23
49. Financial Statements .............................................. 23
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AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE (this "Lease") made this ______________ day of
______________________, 2001, by and between COMMONS OFFICE RESEARCH, LLC (the
"Landlord") and DIALYSIS CORPORATION OF AMERICA (the "Tenant"), witnesseth that
the parties hereby agree as follows:
W I T N E S S E T H:
THAT FOR AND IN CONSIDERATION of the mutual covenants and agreements
herein contained, the parties hereto do hereby covenant and agree as follows:
1. Definitions and Attachments.
1.1 Certain Defined Terms.
1.1.1 "Building" means the office building located at 1344
Ashton Road, Hanover, Maryland, which is located within the Fifth Election
District of Anne Arundel County, Maryland.
1.1.2 "Rentable Area of the Building" means 16,865 rentable
square feet, subject to adjustment in accordance with BOMA standards.
1.1.3 "Premises" means that portion of the Building located on
the second floor designated as Suite 201 described on the schedule attached
hereto as Exhibit "A" and made a part hereof.
1.1.4 "Rentable Area of the Premises" means 2,330 rentable
square feet
1.1.5 "Tenant's Proportionate Share of the Building" means that
percentage which is computed by a fraction, the numerator of which is the
Rentable Area of the Premises and the denominator of which is the Rentable Area
of the Building. As of the date of this Lease, Tenant's Proportionate Share is
13.82%.
1.1.6 "Initial Term" means a period of five (5) years plus the
part of a month mentioned in Section 3.1, commencing and ending as provided in
Section 3.1.
1.1.7 "Renewal Term" means an additional period of five (5)
years, commencing and ending as provided in Section 3.3.
1.1.8 "Annual Base Rent" means the amount set forth on the
following schedule:
Rental Year Annual Base Rent Monthly Installments of Annual Base Rent
- --------------------------------------------------------------------------------
1 $46,599.96 $3,883.33
2 $47,532.00 $3,961.00
3 $48,482.64 $4,040.22
4 $49,452.24 $4,121.02
5 $50,441.28 $4,203.44
1.1.9 "Target Date" means June 15, 2001.
1.1.10 "Advance Rental" means the sum of $3,833.33. See Section
4.2.
1.1.11 "Security Deposit" means the sum of $3,833.33. See Section
4.1.
1.1.12 "Tenant Notice Address" means
Dialysis Corporation of America
27 Miller Street, Suite 2
Lemoyne, PA 17043
Attn: Steve Everett
Telephone (717) 730-7399
Telecopier (717) 730-9133
1.1.13 "Base Year Building Expenses" shall mean the actual
Building Expenses per rentable square foot incurred by Landlord for the 2000
calendar year.
1.1.14 "Base Year Taxes" shall mean the actual Taxes incurred by
Landlord per rentable square foot for the 2000-2001 calendar year.
1.1.15 "Allowance" means the sum of $18,640.00. See Section 35.
1.1.16 "Broker" means KLNB, Inc.
1.2. Additional Defined Terms.
The following additional terms are defined in the places in this Lease
noted below:
Term Section
---- -------
"ADA" ................................................................. 47
"Applicable Laws" ..................................................... 7
"Building Expenses" ................................................... 6.2.2
"Commencement Date" ................................................... 3.1
"Common Areas" ........................................................ 6.2.4
"Cost of Building Expenses Per Square Foot" ........................... 6.4.1
"Cost of Taxes Per Square Foot" ....................................... 6.3.1
"Hazardous Material" .................................................. 46
"HVAC" ................................................................ 23
"Landlord's Notice" ................................................... 3.3
"Lease Year" .......................................................... 6.2.5
"Mortgagee" ........................................................... 31
"Normal Business Hours" ............................................... 23
"Prevailing Market Rate" .............................................. 3.3
"Property" ............................................................ 6.2.1
"Substantially Complete" .............................................. 3.2
"Successor' ........................................................... 32
"Taxes" ............................................................... 6.2.3
"Tenant Improvements" ................................................. 35
"Term" ................................................................ 3.4
1.3. Attachments.
The following documents are attached hereto, and such documents, as
well as all drawings and documents prepared pursuant thereto, shall be deemed to
be a part hereof:
Exhibit "A" - Floor Plan
Exhibit "B" - Rules and Regulations
Exhibit "C" - Schedule of Tenant Improvements
Exhibit "D" - Estoppel Certificate
Exhibit "E" - Subordination, Attornment and Non-Disturbance Agreement'
Exhibit "F" - Commencement Date Agreement
2. Demise. Landlord hereby leases unto Tenant, and Tenant does hereby rent
from Landlord the Premises. In addition thereto, Tenant shall have the right to
use, on a non-exclusive basis, and in common with the other tenants of the
Building the Common Areas of the Building (as that term is defined in Section
6.2.4 hereof).
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3. Term.
3.1 Commencement Date and Term. This Lease shall commence on the
"Commencement Date" (as herein defined) and shall be for the Initial Term, plus
the portion of a calendar month, if any, from the Commencement Date to the last
day of the calendar month in which such Commencement Date occurs. As used in
this Lease, the term "Commencement Date", as advanced or postponed pursuant to
the terms hereof, shall be defined as the earlier to occur of (a) the date on
which Tenant takes possession and occupancy of the Premises, or (b) the date
which is fifteen (15) days following that date which is the first on which all
of the following events have occurred, namely (i) the Premises are
"substantially completed", as defined in Section 3.2 following, (ii) Landlord
has given Tenant written notice that the Premises are "substantially completed",
and (iii) the "Target Date" as defined in Section 3.2 has arrived. Within
fifteen (15) days after request from Landlord, Tenant shall execute and deliver
the Commencement Date Agreement in substantially the form attached hereto as
Exhibit "G".
3.2 Substantial Completion. Subject to the provisions of Section 35,
Landlord shall use its reasonable efforts to "substantially complete" the
Premises by the Target Date, provided that the Target Date shall be extended for
the number of days that Tenant fails to satisfy its obligations under Section35.
"Substantially complete" means that: (i) the construction of the improvements
described in Section 35 has been completed so that Tenant can use the Premises
for their intended purposes without material interference to Tenant conducting
its ordinary business activities, (ii) the Premises have been approved for
occupancy by governmental authorities having jurisdiction, (iii) Tenant has
ready access to the Building and Premises through the lobby, hallways and
elevators, and (iv) the Premises are ready for installation of any equipment,
furniture, fixtures or decoration that Tenant will install. Landlord shall keep
Tenant advised as to its progress with regard to "substantially completing" the
Premises by the Target Date.
3.3 Option to Extend Lease Term. Provided Tenant is not in default of
any term, covenant or condition of this Lease, Tenant shall have the option to
extend the Initial Term of this Lease for one (1) additional period of five (5)
years (the "Renewal Term") to commence immediately upon the expiration of the
Initial Term.
Tenant's rental of the Premises during the Renewal Term shall be upon
the same terms, covenants and conditions contained in this Lease, except that
Tenant shall pay to Landlord as Base Rent that amount equal to the "Prevailing
Market Rate" for the Premises for the Renewal Term as hereinafter defined
(including annual adjustments). For purposes of this Section 3.3, the term
"Prevailing Market Rate" shall mean the then prevailing market rate being
charged for comparable space in comparable office buildings within a ten (10)
mile radius of the Premises, with consideration given for construction
allowances, commissions, free rent, and other concessions or premiums. In order
to exercise its option granted herein, Tenant shall notify Landlord in writing
of its intent to renew not less than one hundred eighty (180) days prior to the
expiration of the Initial Term. Within thirty (30) days following the exercise
by Tenant of its option to extend the Lease for the Renewal Term, Landlord shall
notify Tenant in writing of its determination of the Prevailing Market Rate for
the Renewal Term as reasonably determined by Landlord ("Landlord's Notice").
Within ten (10) days after receipt of Landlord's Notice, Tenant shall notify
Landlord in writing of Tenant's acceptance or rejection of such rate. If Tenant
shall accept such Prevailing Market Rate, Landlord and Tenant shall enter into
an amendment to this Lease acknowledging such renewal and setting forth any
terms at variance with the terms of this Lease. If within the ten (10) day
period, Tenant shall reject such Prevailing Market Rate as determined by
Landlord for the Renewal Term, then within twenty (20) days thereafter, Landlord
and Tenant shall meet at a mutually acceptable time and place and shall use
their reasonable efforts to agree upon the Prevailing Market Rate. If Landlord
and Tenant shall fail to agree upon such Prevailing Market Rate within the
twenty (20) day period, then Tenant's option to extend the Lease for the Renewal
Term shall be void and inoperable. If Tenant shall fail to respond to Landlord's
Notice as provided above, or if Tenant shall fail to deliver the requisite
notice exercising its option to extend by the date prescribed above, then
Tenant's option to extend the Term for the Renewal Term shall be void and
inoperable.
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3.4 Definition of "Term". As used herein, the word "Term" shall refer
to the Initial Term and the Renewal Term, if applicable.
4. Security Deposit and Advance Rent.
4.1 Security Deposit. Tenant has this day paid to Landlord the
Security Deposit to be held by Landlord as security for the performance by
Tenant of all obligations imposed on Tenant hereunder. If Tenant shall perform
all such obligations, the Security Deposit shall be refunded to Tenant, without
interest, at the end of the Term. If Tenant shall default in any such
obligation, Landlord shall be entitled to apply the Security Deposit, pro tanto,
toward Landlord's damages.
4.2 Advance Rent. Upon execution of this Lease, Tenant shall pay
Landlord the Advance Rent to be held as advance rent and security and which
Landlord shall be entitled to retain, without limitation of other remedies, for
any defaults of this Lease by Tenant occurring prior to the commencement of the
Term. If no such defaults occur, the Advance Rent shall be applied by Landlord
against first installments of Base Rent payable by Tenant hereunder.
5. Use. Tenant shall use and occupy the Premises continuously during the
Term of this Lease solely for general office purposes in accordance with
applicable zoning regulations and for no other purpose. Tenant acknowledges that
(a) violation of the foregoing continuous occupancy and use covenant shall be a
material breach of this Lease, and (b) Landlord considers such continuous use
and occupancy covenant a valuable contractual interest with which no other
landlord should interfere by attempting to induce Tenant to move to another
building. Tenant recognizes that its occupancy of the Premises continuously
throughout the Term of this Lease provides Landlord a significant benefit in the
perception of the Building by other prospective tenants who will negotiate with
Landlord for space in the Building in the future as well as the perception of
other existing tenants who will be negotiating with Landlord to renew their
leases and remain in the Building.
6. Rent.
6.1 Base Rent. As rent for the Premises during each year of the Term,
Tenant shall pay to Landlord an Annual Base Rent, in equal monthly installments,
in advance on the first day of each calendar month during the Term, and without
deduction, setoff or demand in accordance with the schedule set forth in Section
1.1.8 above. In addition to the Base Rent, if the Term should commence on a day
other than the first day of a calendar month, Tenant shall pay to Landlord upon
the Commencement Date, a sum equaling that percentage of the monthly rent
installment which equals the percentage of such calendar month falling within
the Term.
6.2 Definitions. For the purposes hereof, the following definitions
shall apply:
6.2.1 "Property" shall mean the Building, the land upon which
same is situated and all fixtures and equipment thereon or therein, all commonly
owned or shared appurtenances, including but not limited to, parking areas,
walkways, landscaping and utilities, whether located on the land upon which the
Building is situated or elsewhere.
6.2.2 "Building Expenses" shall be all those expenses paid or
incurred by Landlord in connection with the owning, maintaining, operating and
repairing of the Property or any part thereof, in a manner deemed reasonable and
appropriate by Landlord and shall include, without limitation, the following:
6.2.2.1 All costs and expenses of operating, repairing,
lighting, cleaning, and insuring (including liability for personal injury, death
and property damage and workers' compensation insurance covering personnel) the
Property or any part thereof, as well as all costs incurred in removing snow,
ice and debris therefrom and of policing and regulating traffic with respect
thereto, and depreciation of all machinery and equipment used therein or
thereon, replacing or repairing of pavement, parking areas, curbs, walkways,
drainage, lighting facilities, landscaping (including replanting and replacing
flowers and other planting);
6.2.2.2 Electricity, steam and fuel used in lighting,
heating, ventilating and air conditioning and all costs, charges, and expenses
incurred by Landlord in connection with any change of any company providing
electricity service, including, without limitation, maintenance, repair,
installation and service costs associated therewith;
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6.2.2.3 Maintenance and repair of mechanical and
electrical equipment including heating, ventilating and air conditioning
equipment;
6.2.2.4 Window cleaning and janitor service, including
equipment, uniforms, and supplies and sundries;
6.2.2.5 Maintenance of elevators, stairways, rest rooms,
lobbies, hallways and other Common Areas;
6.2.2.6 Repainting and redecoration of all Common Areas;
6.2.2.7 Repair and maintenance of the parking areas,
including without limitation, the resurfacing and striping of said areas;
6.2.2.8 Sales or use taxes on supplies or services;
6.2.2.9 Management fees, wages, salaries and compensation
of all persons engaged in the maintenance, operation or repair of the Property
and the provision of amenities to all tenants in the Property (including
Landlord's share of all payroll taxes);
6.2.2.10 Legal, accounting and engineering fees and
expenses, except for those related to disputes with tenants or which are a
result of and/or are based on Landlord's negligence or other tortious conduct;
6.2.2.11 Costs and expenses that may result from
compliance with any governmental laws or regulations that were not applicable to
the Common Areas at the time same were originally constructed; and
6.2.2.12 All other expenses which under generally accepted
accounting principles would be considered as an expense of maintaining,
operating, or repairing the Property. Notwithstanding the foregoing, all
expenses (whether or not such expenses are enumerated on items 1 through 11 of
this Section 6.2.2) which would be considered capital in nature under generally
accepted accounting principles shall be excluded from "Building Expenses" unless
same are amortized in accordance with generally accepted accounting principles.
6.2.3 "Taxes" shall mean all real property taxes including
currently due installments of assessments, sewer rents, ad valorem charges,
water rates, rents and charges, front foot benefit charges, and all other
governmental impositions in the nature of any of the foregoing. Excluded from
Taxes are (i) federal, state or local income taxes, (ii) franchise, gift,
transfer, excise, capital stock, estate or inheritance taxes, and (iii)
penalties or interest charged for late payment of Taxes. If at any time during
the Term the method of taxation prevailing at the commencement of the Term shall
be altered so as to cause the whole or any part of the items listed in the first
sentence of this subparagraph to be levied, assessed or imposed, wholly or
partly as a capital levy, or otherwise, on the rents received from the Building,
wholly or partly in lieu of imposition of or in addition to the increase of
taxes in the nature of real estate taxes issued against the Property, then the
charge to Landlord resulting from such altered additional method of taxation
shall be deemed to be within the definition of "Taxes."
6.2.4 "Common Areas" shall mean those areas and facilities which
may be from time to time furnished to the Building by Landlord for the
non-exclusive general common use of tenants and other occupants of the Building,
their officers, employees, and invitees, including (without limitation) the
hallways, stairs, parking facilities, washrooms, and elevators.
6.2.5 "Lease Year" shall mean the first twelve (12) month period
following the Commencement Date and each succeeding twelve (12) month period
thereafter up to the end of the Term; provided, however, that if the
Commencement Date shall occur on a day other than the first day of a calendar
month, then the first Lease Year shall include that portion of a calendar month
in which the Commencement Date occurs in addition to the first twelve (12) month
period.
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6.3 Rent Adjustments for Taxes.
6.3.1 On or before March 31 of each Lease Year, Landlord shall
total the Taxes and shall allocate such Taxes to the Rentable Area of the
Building in the following manner: Taxes for the foregoing calendar year shall be
totaled and such total shall be divided by the total rentable square feet in the
Building thereby deriving the "Cost of Taxes Per Square Foot" of rentable area.
6.3.2 In the event that the Cost of Taxes Per Square Foot
assessed for any calendar year which is wholly or partly within the Term are
greater than the Base Year Taxes, Tenant shall pay to Landlord, as additional
rent at the time such Taxes are due and payable, the amount of such excess times
the number of Rentable Area of the Premises. Any additional rent due Landlord
under this Section shall be due and payable within thirty (30) days after
Landlord shall have submitted a written statement to Tenant showing the amount
due. For Tenant's obligation for such additional rent at the beginning or end of
the Lease, see Section 6.5. Landlord may, in its discretion, make a reasonable
estimate of such additional rent with respect to Taxes, and require Tenant to
pay each month during such year 1/12 of such amount, at the time of payment of
monthly installments of Base Rent. In such event, Tenant shall pay, or Landlord
shall refund or credit to Tenant's account, any underpayment or overpayment of
such additional rent within thirty (30) days of Landlord's annual written
statement of Taxes due. Tenant shall have the right to examine, at Tenant's sole
expense, Landlord's records with respect to any such increases in rent;
provided, however, that unless Tenant shall have given Landlord written notice
of exception to any such statement within thirty (30) days after delivery
thereof, the same shall be conclusive and binding on Tenant. No credit shall be
given to Tenant if the cost of Taxes Per Square Foot are less than the Base Year
Taxes.
All reasonable expenses incurred by Landlord (including attorneys',
appraisers' and consultants' fees, and other costs) in contesting any increase
in Taxes or any increase in the assessment of the Property shall be included as
an item of Taxes for the purpose of computing additional rent due hereunder.
6.4 Rent Adjustments for Building Expenses.
6.4.1 On or before March 15 of each Lease Year, Landlord shall
compute the Building Expenses for such year and shall allocate such costs to the
Rentable Area of the Building in the following manner: Building Expenses shall
be totaled and such total shall be divided by the total Rentable Area of the
Building thereby deriving the "Cost of Building Expenses Per Square Foot" of
rentable area.
6.4.2 In the event that the cost of Building Expenses Per Square
Foot of rentable area for any year which is wholly or partly within the Term are
greater than the Base Year Building Expenses, Tenant shall pay to Landlord, as
additional rent, the amount of such excess times the number of square feet of
Rentable Area of the Premises, as set forth in Section 1 above. If occupancy of
the Building during any calendar year, including the Base Year for Building
Expenses, is less than ninety percent (90%), then Building Expenses for that
calendar year shall be "grossed up" to that amount of Building Expenses that,
using reasonable projections, would normally be expected to be incurred during
the calendar year in question if the Building was ninety percent (90%) occupied
during the applicable calendar year period, as determined under generally
accepted accounting principles; it being understood that the written statement
submitted to Tenant shall provide a reasonably detailed description of how the
Building Expenses were grossed up and that only those component expenses that
are affected by variations in occupancy levels shall be grossed up. Such
additional rent shall be computed on a year-to-year basis. Any such additional
rent shall be due within thirty (30) days after Landlord has submitted a written
statement to Tenant showing the amount due. Landlord may, in its discretion,
make a reasonable estimate of such additional rent with respect to any calendar
year, and require Tenant to pay each month during such year 1/12 of such amount,
at the time of payment of monthly installments of Base Rent. In such event,
Tenant shall pay, or Landlord shall refund or credit to Tenant's account, any
underpayment or overpayment of such additional rent within thirty (30) days of
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Landlord's written statement of actual Building Expenses for the Calendar year.
Tenant, at Tenant's sole expense, shall have the right to examine Landlord's
records with respect to any such increases in rent; provided, however, that
unless Tenant shall have given Landlord written notice of exception to any such
statement within thirty (30) days after delivery thereof, the same shall be
conclusive and binding on Tenant. No credit shall be given to Tenant if the cost
of Building Expenses Per Square Foot are less than the Base Year Building
Expenses. Notwithstanding anything to the contrary contained herein, Landlord
shall use diligent efforts to keep Building Expenses at reasonable amounts,
while maintaining the Building as a first class office building.
6.5 Additional Rent Payments. Tenant's obligation to pay any
additional rent accruing during the Term pursuant to Sections 6.3 and 6.4 hereof
shall apply pro rata to the proportionate part of a calendar year as to Taxes
and Building Expenses, in which this Lease begins or ends, for the portion of
each such year during which this Lease is in effect. Such obligation to make
payments of such additional rent shall survive the expiration or sooner
termination of the Term.
6.6 Payments. All payments or installments of any rent hereunder and
all sums whatsoever due under this Lease (including but not limited to court
costs and attorneys fees) shall be deemed rent, shall be paid to Landlord at the
address designated by Landlord. If any amount of Annual Base Rent or additional
rent shall remain unpaid for ten (10) calendar days after such payment becomes
due, Tenant shall pay Landlord, without notice or demand, a late charge equal to
the greater of (i) $35.00 and (ii) five percent (5%) of the such overdue amount
to partially compensate Landlord for its administrative costs in connection with
such overdue payment; which administrative costs Tenant expressly acknowledges
are reasonable and do not constitute a penalty. In addition, such overdue
amounts shall bear interest at the rate of 18% per annum (but not more than the
maximum allowable legal rate applicable to Tenant) until paid. Additionally, if
any of Tenant's checks for payment of rent or additional rent are returned to
Landlord for insufficient funds, Tenant shall pay to Landlord as additional rent
$50.00 for each such check returned for insufficient funds, and if two or more
of Tenant's checks in payment of rent or additional rent due hereunder are
returned for insufficient funds in any calendar year, Landlord reserves the
right upon ten (10) days advance written notice to Tenant to thereafter require
Tenant to pay all rent and additional rent and other sums whatsoever due under
this Lease in cash, by money order or by certified check or cashier's check. If
an attorney is employed to enforce Landlord's rights under this Lease, Tenant
shall pay all fees and expenses of such attorney whether or not legal
proceedings are instituted by Landlord. Time is of the essence in this Lease.
7. Requirements of Applicable Law. Landlord warrants that on the
Commencement Date, the Premises shall comply with all applicable laws,
ordinances, rules and regulations of governmental authorities having
jurisdiction over the Property ("Applicable Laws"). Tenant, at its sole cost and
expense, shall thereafter comply promptly with all Applicable Laws now in force
or which may hereafter be in force, which impose any duty upon Landlord or
Tenant with respect to the Tenant's specific use, occupancy or alteration of the
Premises or any part thereof and for the prevention of fires; provided, however,
that Landlord and not Tenant shall correct all structural defects in the
Building necessary to comply with Applicable Laws, and make all repairs, changes
or alterations necessary because the Building was not constructed in compliance
with any of the Applicable Laws.
8. Certificate of Occupancy. Tenant shall not use or occupy the Premises
in any known violation of any certificate of occupancy, permit, or other
governmental consent issued for the Building. If any governmental authority,
after the commencement of the Term, shall contend or declare that the Premises
are being used for a purpose which is in violation of such certificate of
occupancy, permit, or consent, then Tenant shall, upon five (5) days' notice
from Landlord, immediately discontinue such use of the Premises. If thereafter
the governmental authority asserting such violation threatens, commences or
continues criminal or civil proceedings against Landlord for Tenant's failure to
discontinue such use, in addition to any and all rights, privileges and remedies
given to Landlord under this Lease for default therein, Landlord shall have the
right to terminate this Lease forthwith. Tenant shall indemnify and hold
Landlord harmless of and from any and all liability for any such known violation
or violations.
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9. Contest-Statute, Ordinance, Etc. Tenant may, after notice to Landlord,
by appropriate proceedings conducted promptly at Tenant's own expense in
Tenant's name and whenever necessary in Landlord's name, contest in good faith
the validity or enforcement of any such statute, ordinance, law, order,
regulation or requirement and may similarly contest any assertion of violation
of any certificate of occupancy, permit, or any consent issued for the Building.
Tenant may, pending such contest, defer compliance therewith if, in the opinion
of counsel for Landlord, such deferral shall not subject either Landlord or the
Premises or the Property (or any part thereof) to any penalty, fine or
forfeiture, and if Tenant shall post a bond with corporate surety approved by
Landlord sufficient, in Landlord's opinion, fully to indemnify Landlord from
loss.
10. Tenant's Improvements. Except to the extent that Landlord is
responsible for making improvements to the Premises pursuant to Section 35 of
this Lease, Tenant shall make such improvements to the Premises as it may deem
necessary at its sole cost and expense. Tenant shall not make any alterations,
decorations, installations, additions or improvements to the Premises, including
but not limited to, the installation of any fixtures, amenities, equipment,
appliances, or other apparatus, without Landlord's prior written consent, which
consent shall not be unreasonably withheld, and then only by contractors or
mechanics employed or approved by Landlord, which approval shall not be
unreasonably withheld. All such work, alterations, decorations, installations,
additions or improvements shall be done at Tenant's sole expense and at such
times and in such manner as Landlord may from time to time designate. Landlord's
consent to and/or approval of Tenant's plans and specifications for the
aforesaid improvements shall create no responsibility or liability on the part
of Landlord for their completeness, design sufficiency, or compliance with all
laws, rules and regulations of governmental agencies or authorities. All
alterations, decorations, installations, additions or improvements made by
either of the parties hereto upon the Premises, except movable office furniture
put in at the expense of Tenant and other items as mutually agreed upon in
writing, shall be the property of Landlord and shall remain upon and be
surrendered with the Premises at the termination of this Lease without
molestation or injury. Upon request by Landlord, Tenant, at Tenant's expense,
shall remove any and all special improvements to the Premises made by or on
behalf of Tenant, including, without limitation, supplemental HVAC and raised
flooring, but exclusive of improvements that Landlord is responsible for
pursuant to Section 35 of the Lease.
11. Repairs and Maintenance.
11.1 Tenant's Care of the Premises and Building. During the Term
Tenant shall:
(i) keep the Premises and the fixtures, appurtenances and
improvements therein in good order and condition, normal wear and tear excepted;
(ii) make repairs and replacements to the Premises required
because of Tenant's misuse or primary negligence, except to the extent that the
repairs or replacements are covered by Landlord's insurance as required
hereunder;
(iii) repair and replace special equipment or decorative
treatments installed by or at Tenant's request and that serve the Premises only,
except to the extent the repairs or replacements are needed because of
Landlord's misuse or primary negligence, and are not covered by Tenant's
insurance as required hereunder;
(iv) pay for all damage to the Building, its fixtures and
appurtenances, as well as all damages sustained by Tenant or occupants of the
Building due to any waste, misuse or neglect of the Premises, its fixtures and
appurtenances by Tenant, except to the extent that the repair of such damage is
covered by Landlord's insurance as required hereunder; and
(v) not commit waste.
In addition Tenant shall not place a load upon any floor of the
Premises exceeding the floor load per square foot area which such floor was
designed to carry and which may be allowed under Applicable Laws. Landlord
reserves the right to prescribe the weight and position of all heavy equipment
brought onto the Premises and prescribe any reinforcing required under the
circumstances, all such reinforcing to be at Tenant's expense.
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11.2 Landlord's Repairs. Except for the repairs and replacements that
Tenant is required to make pursuant to Section 11.1 above, Landlord shall make
all other repairs and replacements to the Premises, Common Areas and Building
(including Building fixtures and equipment) as shall be reasonably deemed
necessary to maintain the Building in a condition comparable to other first
class suburban office buildings in the Baltimore-Washington corridor area. This
maintenance shall include the roof, foundation, exterior walls, interior
structural walls, all structural components, and all systems such as mechanical,
electrical, multi-tenant HVAC, and plumbing. The costs associated with such
repairs shall be deemed a part of Building Expenses; provided, however, that
costs of all of such repairs which would be considered capital in nature under
generally accepted accounting principles shall be paid by Landlord. There shall
be no allowance to Tenant for a diminution of rental value, no abatement of
rent, and no liability on the part of Landlord by reason of inconvenience,
annoyance or injury to business arising from Landlord, Tenant or others making
any repairs or performing maintenance as provided for herein.
11.3 Time for Repairs. Repairs or replacements required pursuant to
Section 11.1 and 11.2 above shall be made within a reasonable time (depending on
the nature of the repair or replacement needed - generally no more than fifteen
(15) days) after receiving notice or having actual knowledge of the need for a
repair or replacement.
11.4 Surrender of the Premises. Upon the termination of this Lease,
Tenant shall surrender the Premises to Landlord in the same broom clean
condition that the Premises were in on the Commencement Date except for:
(i) ordinary wear and tear;
(ii) damage by the elements, fire, and other casualty unless
Tenant would be required to repair under the provisions of this Lease;
(iii) damage arising from any cause not required to be repaired
or replaced by Tenant; and
(iv) alterations as permitted by this Lease unless consent was
conditioned on their removal.
On surrender Tenant shall remove from the Premises its personal
property, trade fixtures and any alterations required to be removed pursuant to
the terms of this Lease and repair any damage to the Premises caused by this
removal. Any items not removed by Tenant as required above shall be considered
abandoned. Landlord may dispose of abandoned items as Landlord chooses and bill
Tenant for the cost of their disposal.
12. Conduct on Premises. Tenant shall not do, or permit anything to be done
in the Premises, or bring or keep anything therein which shall, in any way,
increase the rate of fire insurance on the Building, or invalidate or conflict
with the fire insurance policies on the Building, fixtures or on property kept
therein, or obstruct or interfere with the rights of Landlord or of other
tenants, or in any other way injure or annoy Landlord or the 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 Applicable
Laws, or the Maryland Fire Underwriters Rating Bureau. Tenant agrees that any
increase of fire insurance premiums on the Building or contents caused by the
occupancy of Tenant and any expense or cost incurred in consequence of
negligence or carelessness or the willful action of Tenant, Tenant's employees,
agents, servants, or invitees shall, as they accrue be added to the rent
heretofore reserved and be paid as a part thereof; and Landlord shall have all
the rights and remedies for the collection of same as are conferred upon
Landlord for the collection of rent provided to be paid pursuant to the terms of
this Lease.
13. Insurance.
13.1 Tenant's Insurance. Tenant shall keep in force at its own
expense, so long as this Lease remains in effect, (a) public liability
insurance, including insurance against assumed or contractual liability under
this Lease, with respect to the Premises, to afford protection with limits, per
person and for each occurrence, of not less than Two Million Dollars
($2,000,000), combined single limit, with respect to personal injury and death
and property damage, such insurance to provide for only a reasonable deductible,
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(b) all-risk property and casualty insurance, including theft, written at
replacement cost value and with replacement cost endorsement, covering all of
Tenant's personal property in the Premises and all improvements and installed in
the Premises by or on behalf of Tenant whether pursuant to the terms of Section
35, Section 10, or otherwise, such insurance to provide for only a reasonable
deductible, (c) if, and to the extent, required by law, workmen's compensation
or similar insurance offering statutory coverage and containing statutory
limits, and (d) shall insure all plate and other interior glass in the Premises
for and in the name of Landlord. Such policies shall be maintained in companies
and in form reasonably acceptable to Landlord and shall be written as primary
policy coverage and not contributing with, or in excess of, any coverage which
Landlord shall carry. Tenant shall deposit the policy or policies of such
required insurance or certificates thereof with Landlord prior to the
Commencement Date, which policies shall name Landlord or its designee and, at
the request of Landlord, its mortgagees, as additional insured and shall also
contain a provision stating that such policy or policies shall not be canceled
except after thirty (30) day's written notice to Landlord or its designees. 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. In
addition to the foregoing insurance coverage, Tenant shall require any
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 (i) comprehensive 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 Hundred
Thousand Dollars ($200,000.00), combined single limit, with respect to personal
injury and death and property damage, such insurance to provide for no
deductible, and (ii) workmen's compensation insurance or similar insurance in
form and amounts as required by law. In the event of damage to or destruction of
the Premises and the termination of this Lease by Landlord pursuant to Section
18 herein, Tenant agrees that it shall pay Landlord all of its insurance
proceeds relating to improvements made in the Premises by or on behalf of Tenant
whether pursuant to the terms of Section 35, Section 10, or otherwise. If Tenant
fails to comply with its covenants made in this Section, if such insurance would
terminate or if Landlord has reason to believe such insurance is about to be
terminated, Landlord may at its option cause such insurance as it in its sole
judgment deems necessary to be issued, and in such event Tenant agrees to pay
promptly upon Landlord's demand, as additional rent the premiums for such
insurance.
13.2 Landlord's Insurance. Landlord shall keep in force at its own
expense (a) contractual and comprehensive general liability insurance, including
public liability and property damage, with a minimum combined single limit of
liability of Two Million Dollars ($2,000,000.00) for personal injuries or death
of persons occurring in or about the Building and Premises, and (b) all-risk
property and casualty insurance written at replacement cost value covering the
Building and all of Landlord's improvements in and about same.
13.3 Waiver of Subrogation. Each party hereto waives claims arising in
any manner in its favor and against the other party and agrees that neither
party hereto shall be liable to the other party or to any insurance company (by
way of subrogation or otherwise) insuring the other party for any loss or damage
to the Building, the Premises or other tangible property, or any resulting loss
of income, or losses under worker's compensation laws and benefits, or against
liability on or about the Building, even though such loss or damage might have
been occasioned by the negligence of such party, its agents or employees if any
such loss or damage is covered by insurance benefiting the party suffering such
loss or damage as was required to be covered by insurance carried pursuant to
this Lease. Landlord shall cause each insurance policy carried by it insuring
against liability on or about the Building or insuring the Premises and the
Building or income resulting therefrom against loss by fire or any of the
casualties covered by the all-risk insurance carried by it hereunder to be
written in such a manner as to provide that the insurer waives all right of
recovery by way of subrogation against Tenant in connection with any loss or
damage covered by such policies. Tenant shall cause each insurance policy
carried by it insuring against liability or insuring the Premises (including the
contents thereof and Tenant's Improvements installed therein by Tenant or on its
behalf) against loss by fire or any of the casualties covered by the all-risk
insurance required hereunder to be written in such a manner as to provide that
the insurer waives all right of recovery by way of subrogation against Landlord
in connection with any loss or damage covered by such policies.
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14. Rules and Regulations. Tenant shall be bound by the rules and
regulations set forth on the schedule attached hereto as Exhibit "B" and made a
part hereof. Landlord shall have the right, from time to time, to issue
additional or amended rules and regulations regarding the use of the Building,
so long as the rules shall be reasonable and non-discriminatory between tenants.
When so issued the same shall be considered a part of this Lease and Tenant
covenants that the additional or amended rules and regulations shall likewise be
faithfully observed by Tenant, the employees of Tenant and all persons invited
by Tenant into the Building, provided, that the additional or amended rules are
made applicable to all office tenants similarly situated as Tenant. Landlord
shall not be liable to Tenant for the violation of any of the rules and
regulations, or the breach of any covenant or condition in any lease, by any
other tenant in the Building.
15. Mechanics' Liens. Tenant shall not do or suffer to be done any act,
matter or thing whereby Tenant's interest in the Premises, or any part thereof,
may be encumbered by any mechanics' lien. Tenant shall discharge, within ten
(10) days after the date of filing, any mechanics' liens filed against Tenant's
interest in the Premises, or any part thereof, purporting to be for labor or
material furnished or to be furnished to Tenant. Landlord shall not be liable
for any labor or materials furnished or to be furnished to Tenant upon credit,
and no mechanics' or other lien for labor or materials shall attach to or affect
the reversionary or other estate or interest of Landlord in and to the Premises,
or the Property.
16. Tenant's Failure to Repair. In the event that Tenant fails after
reasonable prior written notice from Landlord, to keep the Premises in a good
state of condition and repair pursuant to Section 11 above, or to do any act or
make any payment required under this Lease or otherwise fails to comply
herewith, Landlord may, at its option (but without being obliged to do so)
immediately, or at any time thereafter and without notice, perform the same for
the account of Tenant, including the right to enter upon the Premises at all
reasonable hours to make such repairs, or do any act or make any payment or
compliance which Tenant has failed to do, and upon demand, Tenant shall
reimburse Landlord for any such expense incurred by Landlord including but not
limited to any costs, damages and counsel fees. Any moneys expended by Landlord,
as aforesaid, shall be deemed additional rent, collectible as such by Landlord.
All rights given to Landlord in this Section shall be in addition to any other
right or remedy of Landlord herein contained.
17. Property -- Loss, Damage. Landlord, its agents and employees shall not
be liable to Tenant for (i) any damage or loss of property of Tenant placed in
the custody of persons employed to provide services for or stored in or about
the Premises and/or the Building, unless such damage or loss is the result of
the negligence of Landlord, (ii) any injury or damage to persons, property or
the business of Tenant resulting from a latent defect in or material change in
the condition of the Building, and (iii) interference with the light, air, or
other incorporeal hereditaments of the Premises.
18. Destruction -- Fire or Other Casualty. In case of partial damage to the
Premises by fire or other casualty insured against by Landlord, Tenant shall
give immediate notice thereof to Landlord, who shall thereupon cause damage to
all property owned by it to be repaired with reasonable speed at expense of
Landlord, due allowance being made for reasonable delay which may arise by
reason of adjustment of loss under insurance policies on the part of Landlord
and/or Tenant, and for reasonable delay on account of "labor troubles" or any
other cause beyond Landlord's control, and to the extent that the Premises are
rendered untenantable the rent shall proportionately abate from the date of such
casualty, provided the damage above mentioned occurred without the fault or
neglect of Tenant, Tenant's servants, employees, agents or visitors. If such
partial damage is due to the fault or neglect of Tenant, or Tenant's servants,
employees, agents, or invitees, the damage shall be repaired by Landlord to the
extent of Landlord's insurance coverage, but there shall be no apportionment or
abatement of rent. In the event the damage shall be so extensive to the whole
Building as to render it uneconomical, in Landlord's opinion, to restore for its
present uses and Landlord shall decide not to repair or rebuild the Building,
this Lease, at the option of Landlord, shall be terminated upon written notice
to Tenant and the rent shall, in such event, be paid to or adjusted as of the
date of such damage, and the terms of this Lease shall expire by lapse of time
and conditional limitation upon the third day after such notice is mailed, and
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Tenant shall thereupon vacate the Premises and surrender the same to Landlord,
but no such termination shall release Tenant from any liability to Landlord
arising from such damage or from any breach of the obligations imposed on Tenant
hereunder, or from any obligations accrued hereunder prior to such termination.
19. Eminent Domain. If (1) the whole or more than fifty percent (50%) of
the floor area of the Premises shall be taken or condemned by Eminent Domain for
any public or quasi-public use or purpose, and either party shall elect, by
giving written notice to the other, or (2) more than twenty-five percent (25%)
of the floor area of the Building shall be so taken, and Landlord shall elect,
in its sole discretion, by giving written notice to Tenant, any written notice
to be given not more than sixty (60) days after the date on which title shall
vest in such condemnation proceeding, to terminate this Lease, then, in either
such event, the Term of this Lease shall cease and terminate as of the date of
title vesting. In case of any taking or condemnation, whether or not the Term of
this Lease shall cease and terminate, the entire award shall be the property of
Landlord, and Tenant hereby assigns to Landlord all its right, title and
interest in and to any such award, except that Tenant shall be entitled to
claim, prove and receive in the proceedings such awards as may be allowed for
moving expenses, loss of profit and fixtures and other equipment installed by it
which shall not, under the terms of this Lease, be or become the property of
Landlord at the termination hereof, but only if such awards shall be made by the
condemnation, court or other authority in addition to, and be stated separately
from, the award made by it for the Property or part thereof so taken.
20. Assignment. So long as Tenant is not in default of any of the terms and
conditions hereof, after the giving of all required notices and the expiration
of all cure periods, Landlord shall not unreasonably withhold its consent to an
assignment of this Lease or sublease of the Premises for any of the then
remaining portion of the unexpired Term provided: (i) the net assets of the
assignee or sublessee shall be sufficient in Landlord's reasonable
determination; (ii) in the event of an assignment, such assignee shall assume in
writing all of Tenant's obligations under this Lease; (iii) in the event of a
sublease, such sublease shall in all respects be subject to and in conformance
with the terms of this Lease; and (iv) in all events Tenant continues to remain
liable on this Lease for the performance of all terms, including but not limited
to, payment of all rent due hereunder. Landlord and Tenant acknowledge and agree
that it shall not be unreasonable for Landlord to withhold its consent to an
assignment if in Landlord's reasonable business judgment, the assignee lacks
sufficient business experience or net worth to successfully operate its business
within the Premises in accordance with the terms, covenants and conditions of
this Lease. If this Lease be assigned, or if the Premises or any part thereof be
underlet or occupied by anybody other than Tenant, Landlord may, after default
by Tenant, collect rent from the assignee, undertenant or occupant and apply the
net amount collected to the rent herein reserved, but no such collection shall
be deemed a waiver of this covenant, or the acceptance of the assignee,
undertenant or occupant as tenant, or a release of Tenant from the further
observance and performance by Tenant of the covenants herein contained. In
addition, in the event of a proposed assignment, Landlord shall have the right,
but not the obligation, to terminate this Lease by giving Tenant thirty (30)
days' advance written notice ("Landlord's Termination Notice"); provided,
however, that Tenant shall have the right to abrogate Landlord's Termination
Notice of the withdrawal of the request for consent to the assignment. For
purposes of the foregoing, a transfer by operation of law or transfer of a
controlling interest in Tenant as same exists as of the date hereof, shall be
deemed to be an assignment of this Lease. No assignment or sublease, regardless
of whether Landlord's consent has been granted or withheld, shall be deemed to
release Tenant from any of its obligations nor shall the same be deemed to
release any person guaranteeing the obligations of Tenant hereunder from their
obligations as guarantor. Landlord's acceptance of any name submitted by Tenant,
an agent of Tenant, or anyone acting by, through or under Tenant for the purpose
of being listed on the Building directory will not be deemed, nor will it
substitute for, Landlord's consent, as required by this Lease, to any sublease,
assignment, or other occupancy of the Premises by anyone other than Tenant or
Tenant's employees. Any profit or additional consideration or rent in excess of
the Base Rent or Additional Rent payable by Tenant hereunder which is payable to
Tenant as a result of any assignment or subletting shall be paid to Landlord as
Additional Rent when received by Tenant. All the foregoing notwithstanding,
Tenant shall not enter into any lease, sublease, license, concession or other
agreement for the use, occupancy or utilization of the Premises or any portion
thereof, which provides for a rental or other payment for such use, occupancy or
utilization based in whole or in part on the income or profits derived by any
person or entity from the property leased, used, occupied or utilized. Any such
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purported lease, sublease, license, concession or other agreement shall be
absolutely void and ineffective as a conveyance of any right or interest in the
possession, use or occupancy of any part of the Premises. Any consent by
Landlord hereunder shall not constitute a waiver of strict future compliance by
Tenant with the provisions of this Article.
21. Default; Remedies; Bankruptcy of Tenant. Any one or more of the
following events shall constitute an "Event of Default" hereunder, at Landlord's
election: (a) the sale of Tenant's interest in the Premises under attachment,
execution or similar legal process or, the adjudication of Tenant as a bankrupt
or insolvent, unless such adjudication is vacated within thirty (30) days; (b)
the filing of a voluntary petition proposing the adjudication of Tenant (or any
guarantor of Tenant's obligations hereunder) as a bankrupt or insolvent, or the
reorganization of Tenant (or any such guarantor), or an arrangement by Tenant
(or any such guarantor) with its creditors, whether pursuant to the Federal
Bankruptcy Code or any similar federal or state proceeding, unless such petition
is filed by a party other than Tenant (or any such guarantor) and is withdrawn
or dismissed within thirty (30) days after the date of its filing; (c) the
admission, in writing, by Tenant (or any such guarantor) of its inability to pay
its debts when due; (d) the appointment of a receiver or trustee for the
business or property of Tenant (or any such guarantor), unless such appointment
is vacated within thirty (30) days of its entry; (e) the making by Tenant (or
any such guarantor) of an assignment for the benefit of its creditors, or if, in
any other manner, Tenant's interest in this Lease shall pass to another by
operation of law; (f) the failure of Tenant to pay any rent, additional rent or
other sum of money when due and such failure continues for a period of ten (10)
days after receipt of written notice that the same is past due hereunder; (g) if
Tenant fails to pay any rent or additional rent when due after Landlord shall
have given Tenant written notice with respect to such non-payment twice in any
twelve (12) month period as provided in subsection (f) above; (h) Tenant shall
fail to move into or take possession of the Premises within thirty (30) days
after commencement of the Term or having taken possession shall thereafter
abandon and/or vacate the Premises; and (i) the default by Tenant in the
performance or observance of any covenant or agreement of this Lease (other than
a default involving the payment of money), which default is not cured within
thirty (30) days after the giving of notice thereof by Landlord, unless such
default is of such nature that it cannot be cured within such thirty (30) day
period, in which case no Event of Default shall occur so long as Tenant shall
commence the curing of the default within such thirty (30) day period and shall
thereafter diligently prosecute the curing of same.
Upon the occurrence and continuance of an Event of Default, Landlord,
with such notice to Tenant as provided for by law or as expressly provided for
herein, may do any one or more of the following: (a) sell, at public or private
sale, all or any part of the goods, chattels, fixtures and other personal
property belonging to Tenant which are or may be put into the Premises during
the Term, whether or not exempt from sale under execution or attachment (it
being agreed that the property shall at all times be bound with a lien in favor
of Landlord and shall be chargeable for all rent and for the fulfillment of the
other covenants and agreements herein contained), and apply the proceeds of such
sale, first, to the payment of all costs and expenses of conducting the sale or
caring for or storing the property; second, toward the payment of any
indebtedness, including, without limitation, indebtedness for rent, which may be
or may become due from Tenant to Landlord; and third, to pay Tenant, on demand
in writing, any surplus remaining after all indebtedness of Tenant to Landlord
has been fully paid; (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 rate of eighteen percent (18%)
per annum, from the date of such expenditure, shall be deemed additional rent
and shall be payable by Tenant to Landlord upon demand; (c) elect to terminate
this Lease and the tenancy created hereby by giving notice of such election to
Tenant in which event Tenant shall be liable for Base Rent, Additional Rent, and
other indebtedness that otherwise would have been payable by Tenant during the
remainder of the Term had there been no Event of Default, and on notice 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 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; and also the right,
but not the obligation, to re-let the Premises for any unexpired balance of the
Term, and collect the rent therefor. In the event of such re-letting by
Landlord, the re-letting shall be on such terms, conditions and rental as
Landlord may deem proper, and the proceeds that may be collected from the same,
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less the expense of re-letting (including reasonable leasing fees and
commissions and reasonable costs of renovating the Premises), shall be applied
upon Tenant's rental obligation as set forth in this Lease for the unexpired
portion of the Term. Tenant shall be liable for any balance that may be due
under this Lease, although Tenant shall have no further right of possession of
the Premises; and (d) exercise any other legal or equitable right or remedy
which it may have at law or in equity. Notwithstanding the provisions of clause
(b) above 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 the failure to take rapid action, or if the unperformed obligation of
Tenant constitutes an emergency.
To the extent permitted by law, Tenant hereby expressly waives any and
all rights of redemption, granted by or under any present or future laws in the
event of Tenant's being evicted or dispossessed for any cause, or in the event
of Landlord's obtaining possession of the Premises, by reason of the violation
by Tenant of any of the covenants and conditions of this Lease, or otherwise.
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.
Any costs and expenses incurred by Landlord (including, without
limitation, reasonable attorneys' fees) in enforcing any of its rights or
remedies under this Lease shall be deemed to be additional rent and shall be
repaid to Landlord by Tenant upon demand.
Notwithstanding any of the other provisions of this Lease, in the event
Tenant shall voluntarily or involuntarily come under the jurisdiction of the
Federal Bankruptcy Code and thereafter Tenant or its trustee in bankruptcy,
under the authority of and pursuant to applicable provisions thereof, shall have
the power and so using same determine to assign this Lease, Tenant agrees that
(i) Tenant or its trustee shall provide to Landlord sufficient information
enabling it to independently determine whether Landlord will incur actual and
substantial detriment by reason of such assignment and (ii) "adequate assurance
of future performance" under this Lease, as that term is generally defined under
the Federal Bankruptcy Code, shall be provided to Landlord by Tenant and its
assignee as a condition of the assignment.
22. Damages. If this Lease is terminated by Landlord pursuant to Section
21, Tenant shall, nevertheless, remain liable for all rent and damages which may
be due or sustained prior to such termination, and 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 and additional damages (the "Liquidated
Damages"), which shall be an amount equal to the total 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 Liquidated
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, and any suit or action brought to collect any such Liquidated
Damages for any month shall not in any manner prejudice the right of Landlord to
collect any Liquidated Damages for any subsequent month by a similar proceeding.
If this Lease is terminated pursuant to Section 21, Landlord may relet
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, free rent and/or alterations of the Premises) as
Landlord, in its sole discretion, may determine, but Landlord shall not be
liable for, nor shall Tenant's obligations hereunder be diminished by reason of,
any failure by Landlord to relet the Premises or any failure by Landlord to
collect any rent due upon such reletting.
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23. Services and Utilities. Landlord shall provide the following listed
services and utilities, namely:
(a) heating, ventilation, and air conditioning ("HVAC") for the
Premises during "Normal Business Hours" (as defined below) to maintain
temperatures for comfortable use and occupancy;
(b) electric energy in accordance with Section 24 following;
(c) automatic passenger elevators providing adequate service leading
to the floor on which the Premises are located;
(d) evening, unescorted janitorial services to the Premises including
removal of trash;
(e) hot and cold water sufficient for drinking, lavatory toilet and
ordinary cleaning purposes from fixtures either within the Premises (if provided
pursuant to this Lease) or on the floor on which the Premises are located;
(f) replacement of lighting tubes, lamp ballasts and bulbs;
(g) extermination and pest control when and if necessary; and
(h) maintenance of Common Areas in a manner comparable to other first
class suburban office buildings in the Baltimore-Washington corridor.
Notwithstanding the foregoing, if at any time during the Term, Landlord
shall, after reasonable investigation determine that trash and similar waste
generated by Tenant and/or emanating from the Premises is in excess of that of
other standard office tenants within the Building leasing a premises of the same
or similar size to that of the Premises, Landlord shall bill Tenant and Tenant
shall pay to Landlord as additional rent hereunder within thirty (30) days of
the date of Landlord's invoice for the same, those costs and expenses of trash
removal which are reasonably attributable to such excess trash and similar waste
generated by Tenant and/or emanating from the Premises. "Normal Business Hours"
as used herein is defined from 8:00 a.m. to 6:00 p.m. on business days and from
8:00 a.m. to 1:00 p.m. on Saturdays. Landlord shall have no responsibility to
provide any services under (a) above except during Normal Business Hours unless
arrangements for after-hours services have been made pursuant to terms and
conditions acceptable to Landlord and embodied in a separate written agreement
between Landlord and Tenant. Landlord reserves the right to require Tenant, at
Tenant's expense, to install separate meters to monitor electrical consumption
if Landlord determines, in its reasonable discretion that such monitoring is
necessary based on Tenant's electrical usage. Landlord reserves the right to
stop service of the HVAC, elevator, plumbing and electric systems, when
necessary, by reason of accident, or emergency, or for repairs, alterations,
replacements, or improvements, which in the judgment of Landlord are desirable
or necessary to be made, until the repairs, alterations, replacements, or
improvements shall have been completed. Landlord shall have no responsibility or
liability for failure to supply HVAC, elevator, plumbing, cleaning, and electric
service, during the period when prevented from so doing by laws, orders, or
regulations of any Federal, State, County or Municipal authority or by strikes,
accidents or by any other cause whatsoever beyond Landlord's control. Landlord's
obligations to supply HVAC are subject to applicable laws and regulations as to
energy conservation and other such restrictions. In the event that Tenant should
require supplemental HVAC for the Premises, any maintenance repair and/or
replacement required for such supplemental service shall be performed by
Landlord but the cost of such maintenance repair and/or replacement (including
labor and materials) shall be paid by Tenant as additional rent.
24. Electric Current. Throughout the Term Landlord shall furnish Tenant
without additional charge during Normal Business Hours (as defined in Section
23) a reasonable amount of electric current at 110 volts ("Normal Usage Amount")
for lighting purposes within the Premises and the powering of a normal amount of
office equipment and appliances. "Normal Usage Amount" is defined for purposes
of this Lease to mean electric power supplied at the rate of three (3) watts per
square foot of Premises. In this regard Tenant agrees as follows:
(1) If Landlord reasonably determines based upon engineering studies
of electrical load consumed that Tenant is materially exceeding the Normal Usage
Amount Tenant shall pay to Landlord such amounts as additional rent as will
equitably reimburse Landlord for the cost of the extra electric power so
consumed by Tenant;
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(2) If Tenant shall desire to place and install in the Premises
electric equipment or appliances other than normal and typical to general office
usage it shall pay for such installations including any additional electric
lines and facilities required and shall pay for the electric power used in such
equipment if same exceeds Normal Usage Amount.
Landlord has advised Tenant that present Baltimore Gas & Electric
("Electric Service Provider") is the utility company selected by Landlord to
provide electricity to the Building. Notwithstanding the foregoing, if permitted
by law, Landlord shall have the right at any time and from time to time during
the Term to either contract for service from a different company or companies
providing electricity service (each such company shall hereinafter be referred
to as an "Alternative Service Provider") or continue to contract for service
from the Electric Service Provider.
Tenant shall cooperate with Landlord, the Electric Service Provider and
any Alternate Service Provider at all times and, as reasonably necessary, shall
allow Landlord, the Electric Service Provider, and any Alternative Service
Provider reasonable access to the Building's electric lines, feeders, risers,
wiring and any other machinery within the Premises, provided that Landlord shall
use its reasonable efforts to minimize its interference with Tenant's business
in the Premises.
25. Telephone and Telecommunications. Landlord has arranged for the
installation of telephone service within the Building to the ground floor
telephone utility closet and conduit to the ground floor telephone and
electrical riser closets. Tenant shall be responsible for contacting the utility
company supplying the telephone service and arranging to have such telephone
facilities as it may desire to be extended and put into operation in the
Premises, including without limitation, obtaining a low voltage permit for phone
and data wiring. Tenant acknowledges and agrees that all telephone and
telecommunications services desired by Tenant shall be ordered and utilized at
the sole expense of Tenant. All costs related to installation and the provision
of such service shall be borne and paid for directly by Tenant. Upon request by
Landlord, Tenant, at Tenant's expense, shall remove the telephone facilities at
the expiration or sooner termination of the Term. Tenant shall obtain the
requisite permit and complete the ceiling work in cooperation with Landlord in
order not to interfere with or delay the completion of the Tenant Improvements
by Landlord pursuant to Section 35, including, without limitation, the closing
of the ceiling and the carpet installation, if applicable.
In the event Tenant wishes to utilize the services of a telephone or
telecommunications provider whose equipment is not servicing the Building at
such time Tenant wishes to install its telecommunications equipment serving the
Premises ("Provider"), no such Provider shall be permitted to install its lines
or other equipment without first securing the prior written consent of Landlord,
which consent shall not be unreasonably withheld. Prior to the commencement of
any work in or about the Building by the Provider, the Provider shall agree to
abide by such rules and regulations, job site rules, and such other requirements
as reasonably determined by Landlord to be necessary to protect the interest of
the Building and Property, the other tenants and occupants of the Building and
Landlord, including, without limitation, providing security in such form and
amount as reasonable determined by Landlord. Each Provider must be duly
licensed, insured and reputable. Landlord shall incur no expense whatsoever with
respect to any aspect of Provider's provision of its services, including without
limitation, the costs of installation, materials and service.
In addition, Landlord reserves exclusively to itself and its successors
and assigns the right to install, operate, maintain, repair, replace and remove
fiber optic cable and conduit and associated equipmnet and appurtenances within
the Building and the Premises so as to provide telecommunications service to and
for the benefit of tenants and other occupants of the Building.
26. Acceptance of Premises. Tenant shall have reasonable opportunity,
provided it does not thereby interfere with Landlord's work, to examine the
Premises to determine the condition thereof. Upon taking possession of the
Premises, Tenant shall be deemed to have accepted same as being satisfactory and
in the condition called for hereunder, except for latent defects and punch list
items previously noted to Landlord.
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27. Inability to Perform. This Lease and the obligation of Tenant to pay
rent hereunder and perform all of the other covenants and agreements hereunder
on the part of Tenant to be performed shall in no way be affected, impaired or
excused because Landlord is unable to fulfill any of its obligations under this
Lease or to supply, or is delayed in supplying, any service to be supplied by it
under the terms of this Lease or is unable to make, or is delayed in making any
repairs, additions, alterations, or decorations or is unable to supply, or is
delayed in supplying, any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of strikes or labor troubles or any outside
cause whatsoever including, but not limited to, governmental preemption in
connection with a National Emergency, or by reason of any rule, order or
regulation of any department or subdivision of any government agency or by
reason of the conditions of supply and demand which have been or are affected by
war or other emergency. Similarly, Landlord shall not be liable for any
interference with any services supplied to Tenant by others if such interference
is caused by any of the reasons listed in this Section. Nothing contained in
this Section shall be deemed to impose any obligation on Landlord not expressly
imposed by other sections of this Lease.
28. No Waivers. The failure of Landlord to insist, in any one or more
instances, upon a strict performance of any of the covenants of this Lease, or
to exercise any option herein contained, shall not be construed as a waiver, or
a relinquishment for the future, of such covenant or option, but the same shall
continue and remain in full force and effect. The receipt by Landlord of rent,
with knowledge of the breach of any covenant hereof, shall not be deemed a
waiver of such breach, and no waiver by Landlord of any provision hereof shall
be deemed to have been made unless expressed in writing and signed by Landlord.
29. Access to Premises and Change in Services. Landlord shall have the
right, without abatement of rent, to enter the Premises at any hour to examine
the same, or to make such repairs and alterations as Landlord shall deem
necessary for the safety and preservation of the Building, and also to exhibit
the Premises to be let; provided, however, that except in the case of emergency,
such entry shall only be after reasonable notice first given to Tenant. If,
during the last month of the Term, Tenant shall have removed all or
substantially all of Tenant's property therefrom, Landlord may immediately enter
and alter, renovate and redecorate the Premises, without elimination or
abatement of rent, or incurring liability to Tenant for any compensation, and
such acts shall have no effect upon this Lease. Nothing herein contained,
however, shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, supervision or repair, of
the Building or any part thereof, other than as herein elsewhere expressly
provided. Landlord shall also have the right at any time, without the same
constituting an actual or constructive eviction and without incurring any
liability to Tenant therefor, to change the arrangement and/or location of
entrances or passageways, doors and doorways, and corridors, stairs, toilets,
elevators, or other public parts of the Building, and to change the name by
which the Building is commonly known and/or its mailing address.
30. Estoppel Certificates. Tenant agrees, at any time and from time to
time, upon not less than ten (10) days' prior request by Landlord to execute,
acknowledge and deliver to Landlord an estoppel certificate substantially in the
form attached hereto as Exhibit "D" or such other reasonable form requested by
Landlord which certifies that this Lease is unmodified and in full force (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications) and the dates to which the rent and
other charges have been paid in advance, if any, and stating whether or not to
the best knowledge of the signer of such certificate Landlord is in default in
performance of any covenant, agreement or condition contained in this Lease and,
if so, specifying each such default of which the signer may have knowledge, it
being intended that any such statement delivered hereunder may be relied upon by
third parties not a party to this Lease.
31. Subordination. Tenant accepts this Lease, and the tenancy created
hereunder, subject and subordinate to any mortgages, overleases, leasehold
mortgages or other security interests now or hereafter a lien upon or affecting
the Building or the Property or any part thereof. Tenant shall, at any time
hereafter, within ten (10) days after request from Landlord, execute a
Subordination, Non-Disturbance Agreement substantially in the form of Exhibit
"E" attached hereto and made a part hereof or any instruments or leases or other
documents that may be required by any mortgage or mortgagee or overlandlord
(herein a "Mortgagee") for the purpose of subjecting or subordinating this Lease
and the tenancy created hereunder to the lien of any such mortgage or mortgages
or underlying lease, and the failure of Tenant to execute any such instruments,
releases or documents shall constitute a default hereunder.
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32. Attornment. Tenant agrees that upon any termination of Landlord's
interest in the Premises, Tenant shall, upon request, attorn to the person or
organization then holding title to the reversion of the Premises (the
"Successor") and to all subsequent Successors, and shall pay to the Successor
all of the rents and other monies required to be paid by Tenant hereunder and
perform all of the other terms, covenants, conditions and obligations in this
Lease contained; provided, however, that if in connection with such attornment
Tenant shall so request from such Successor in writing, such Successor shall
execute and deliver to Tenant an instrument wherein such Successor agrees that
as long as Tenant performs all of the terms, covenants and conditions of this
Lease, on Tenant's part to be performed, Tenant's possession under the
provisions of this Lease shall not be disturbed by such Successor.
33. Notices. All notices and other communications to be made hereunder
shall be in writing and shall be delivered to the addresses set forth below by
any of the following means: (a) personal service or receipted courier service;
(b) telecopying (if confirmed in writing sent by the methods specified in
clauses (a), (c) or (d) of this Section), (c) registered or certified first
class mail, return receipt requested, or (d) nationally-recognized overnight
delivery service. Such addresses may be changed by notice to the other parties
given in the same manner as provided above. Any notice or other communication
sent pursuant to clause (a) or (b) hereof shall be deemed received upon such
personal service or upon dispatch by electronic means, if sent pursuant to
subsection (c) shall be deemed received five (5) days following deposit in the
mail and/or if sent pursuant to subsection (d) shall be deemed received the next
succeeding business day following deposit with such nationally recognized
overnight delivery service.
If to Landlord: COMMONS OFFICE RESEARCH, LLC
c/o Corporate Office Properties, L.P.
8815 Centre Park Drive, Suite 400
Columbia, Maryland 21045
Attn: General Counsel
Telecopier: 410-740-1174
If to Tenant: At the Premises and to Tenant's Notice Address.
Any party may designate a change of address by written notice to the above
parties, given at least ten (10) days before such change of address is to become
effective.
34. Relocation. Landlord reserves the right at any time prior to the
Commencement Date or during the Term upon sixty (60) days' prior written notice
to relocate Tenant within the Building provided: (1) that Tenant approves the
location and size of the new premises, which shall be comparable space to the
Premises, and (2) Landlord pays all reasonable moving costs incurred by Tenant
in connection with such move. If Landlord exercises this right, the written
notice to Tenant shall include a drawing showing the size and location of the
new premises. If Tenant approves the new location, the parties shall execute an
amendment to this Lease which will specify the change in premises, but this
Lease shall in no other respect be amended and the rent payable hereunder shall
not abate except for the period actually involved in the moving of Tenant. If
Tenant does not send Landlord written notice of its disapproval of the proposed
relocation within the seventy-five (75) day period, Tenant shall be conclusively
presumed to have approved the same. If Tenant shall send a notice disapproving
the proposed relocation during the seventy-five (75) day period, then Landlord,
at its option, may (i) rescind the notice of relocation (in which event this
Lease shall continue to the same extent as if no such notice had been sent), or
(ii) terminate this Lease upon seventy-five (75) days' written notice (in which
event the rights of the parties shall be the same as if the Lease had terminated
by expiration of the Term). Landlord shall make its election within ten (10)
days following the first seventy-five (75) day period and shall give Tenant
written notice thereof specifying its election. In addition, if Landlord
exercises its relocation rights in accordance with this Section, Base Rent due
under the amended Lease for the new premises shall be abated for a period of
fifteen (15) days.
35. Tenant's Space. Attached hereto as Exhibit "C" is a copy of Landlord's
"Tenant Improvements," specifying the materials and manner in which Landlord
shall finish the Premises. Landlord shall cause all work necessary to complete
the Premises in accordance with Exhibit "C" to be commenced with reasonable
promptness after the signing of the Lease and thereafter duly completed.
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Tenant shall reimburse Landlord for all costs incurred by Landlord to
construct the Tenant Improvements in excess of the Allowance within thirty (30)
days' after receipt of a written invoice for such costs, together with
reasonable supporting evidence. The cost of any work which is not described as
Tenant Improvements shall include all costs of labor and materials incurred by
Landlord in the performance of such work, plus ten percent (10%) for overhead
and ten percent (10%) for profit. At Tenant's request, Landlord shall fully
cooperate with Tenant to establish the costs or estimates in advance of
performing the work which is not included as the Tenant Improvements.
36. Quiet Enjoyment. Tenant, upon the payment of rent and the performance
of all the terms of this Lease, shall at all times during the Term peaceably and
quietly enjoy the Premises without any disturbance from Landlord or any other
person claiming through Landlord.
37. Vacation of Premises. Tenant shall vacate the Premises at the end of
the Term. If Tenant fails to vacate at such time there shall be payable to
Landlord an amount equal to one hundred fifty percent (150%) of the monthly Base
Rent stated in Section 1.1.8 paid immediately prior to the holding over period
for each month or part of a month that Tenant holds over, plus all other
payments provided for herein, and the payment and acceptance of such payments
shall not constitute an extension or renewal of this Lease. In event of any such
holdover, Landlord shall also be entitled to all remedies provided by law for
the speedy eviction of tenants, and to the payment of all attorneys' fees and
expenses incurred in connection therewith.
38. Members' Liability. It is understood that the Owner of the Building is
a Maryland limited liability company. All obligations of the Owner hereunder are
limited to the net assets of the Owner from time to time. No member of Owner, or
of any successor partnership, whether now or hereafter a member, shall have any
personal responsibility or liability for the obligations of Owner hereunder.
39. Separability. If any term or provision of this Lease or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease or the application of such term or
provision 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 be enforced to the
fullest extent permitted by law.
40. Indemnification.
40.1 Tenant's Indemnification. Tenant shall indemnify and hold
harmless Landlord and all of its and their respective members, partners,
directors, officers, agents and employees from any and all liability, loss, cost
or expense arising from all third-party claims resulting from or in connection
with:
40.1.1 the conduct or management of the Premises or of any
business therein, or any work or thing whatsoever done, or any condition created
in or about the Premises during the Term of this Lease or during the period of
time, if any, prior to the Commencement Date that Tenant may have been given
access to the Premises if a result of acts covered by Section 40.1.2 below;
40.1.2 any act, omission or negligence of Tenant or any of its
subtenants or licensees or its or their partners, directors, officers, agents,
employees, invitees or contractors; and
40.1.3 any accident, injury or damage whatever occurring in, at
or upon the Premises other than those items covered under Landlord's indemnity
as described in Section 40.2;
together with all costs and expenses reasonably incurred or paid in connection
with each such claim or action or proceeding brought thereon, including, without
limitation, all reasonable attorney's fees and expenses.
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In case any action or proceeding is brought against Landlord and/or any
of its and their respective partners, directors, officers, agents or employees
and such claim is a claim from which Tenant is obligated to indemnify Landlord
pursuant to this Section, Tenant, upon written notice from Landlord shall resist
and defend such action or proceeding (by counsel reasonably satisfactory to
Landlord). The obligations of Tenant under this Section shall survive
termination of this Lease.
40.2 Landlord's Indemnification. Landlord shall indemnify and hold
harmless Tenant and all of its and their respective members, partners,
directors, officers, agents and employees from any and all liability, loss, cost
or expense arising from all third-party claims resulting from or in connection
with:
40.2.1 the conduct or management of the Building or of any
business therein, or any work or thing whatsoever done, or any condition created
in or about the Building during the Term of this Lease; and
40.2.2 any act, omission or negligence of Landlord or any of its
subtenants or licensees or its or their partners, directors, officers, agents,
employees, invitees or contractors; and
together with all costs and expenses reasonably incurred or paid in connection
with each such claim or action or proceeding brought thereon, including, without
limitation, all reasonable attorney's fees and expenses.
In case any action or proceeding is brought against Tenant and/or any
of its and their respective partners, directors, officers, agents or employees
and such claim is a claim from which Landlord is obligated to indemnify Tenant
pursuant to this Section, Landlord, upon written notice from Tenant shall resist
and defend such action or proceeding (by counsel reasonably satisfactory to
Tenant). The obligations of Landlord under this Section shall survive
termination of this Lease.
41. Captions. All headings anywhere contained in this Lease are intended
for convenience or reference only and are not to be deemed or taken as a summary
of the provisions to which they pertain or as a construction thereof.
42. Brokers. Tenant represents that Tenant has dealt directly with, only
with, the Broker as broker in connection with this Lease, and Tenant warrants
that no other broker negotiated this Lease or is entitled to any commissions in
connection with this Lease. Landlord shall pay the Broker pursuant to the terms
of a separate written agreement by and between Landlord and Broker.
43. Recordation. Tenant covenants that it shall not, without Landlord's
prior written consent, record this Lease or any memorandum of this Lease or
offer this Lease or any memorandum of this Lease for recordation. If at any time
Landlord or any mortgagee of Landlord's interest in the Premises shall require
the recordation of this Lease or any memorandum of this Lease, such recordation
shall be at Landlord's expense. If at any time Tenant shall require the
recordation of this Lease or any memorandum of this Lease, such recordation
shall be at Tenant's expense. If the recordation of this Lease or any memorandum
of this Lease shall be required by any valid governmental order, or if any
government authority having jurisdiction in the matter shall assess and be
entitled to collect transfer taxes or documentary stamp taxes, or both transfer
taxes and documentary stamp taxes on this Lease or any memorandum of this Lease,
Tenant shall execute such acknowledgments as may be necessary to effect such
recordations and pay, upon request of Landlord, one half of all recording fees,
transfer taxes and documentary stamp taxes payable on, or in connection with
this Lease or any memorandum of this Lease or such recordation.
44. Successors and Assigns. The covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant, and their respective heirs, personal representatives, successors and
assigns (subject, however, to the terms of Section 20 hereof).
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45. 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 are incorporated. No course of prior dealings between the Parties or
their affiliates 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 affiliates 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.
46. Hazardous Material; Indemnity. Tenant shall not cause or permit any
Hazardous Material (as hereinafter defined) to be brought upon, kept, or used in
or about the Premises by Tenant, its agents, employees, contractors or invitees,
without the prior written consent of Landlord (which Landlord shall not
unreasonably withhold as long as Tenant demonstrates to Landlord's reasonable
satisfaction that such Hazardous Material is necessary or useful to Tenant's
business and shall be used, kept and stored in a manner that complies with all
laws regulating any such Hazardous Material so brought upon or used or kept in
or about the Premises). If Tenant breaches the obligations stated in the
preceding sentence, or if the presence of Hazardous Material on the Premises
caused or permitted by Tenant results in contamination of the Premises, the
Building and/or the Property, or if contamination of the Premises, the Building
and/or the Property by Hazardous Material otherwise occurs, for which Tenant is
legally liable to Landlord for damage resulting therefrom, then Tenant shall
indemnify, defend and hold Landlord and its Mortgagee(s) harmless from any and
all claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, diminution in value of the Premises, the
Building and/or the Property, damages for the loss or restriction on use of
rentable or usable space or of any amenity of the Premises, the Building and/or
the Property, damages arising from any adverse impact on marketing of space, and
sums paid in settlement of claims, attorneys' fees, consultant fees and expert
fees) which arise during or after the Term as a result of such contamination.
This indemnification of Landlord and its Mortgagee(s) by Tenant includes,
without limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal, or restoration work required by
any federal, state or local governmental agency or political subdivision because
of Hazardous Material present in the soil or ground water on or under the
Building. Without limiting the foregoing, if the presence of any Hazardous
Material on the Premises, the Building and/or the Property caused or permitted
by Tenant results in any contamination of the Premises, the Building and/or the
Property, Tenant shall promptly take all actions at its sole expense as are
necessary to return the Premises, the Building and/or the Property to the
condition existing prior to the introduction of any such Hazardous Material to
the Premises, the Building and/or the Property; provided that Landlord's
approval of such actions shall first be obtained, which approval shall not be
unreasonably withheld so long as such actions would not potentially have any
material adverse long-term or short-term effect on the Premises or the Building.
As used herein, the term "Hazardous Material" means any hazardous or
toxic substance, material or waste which is or becomes regulated by any local
governmental authority, the State of Maryland or the United States Government.
The term "Hazardous Material" includes, without limitation, any material or
substance that is (i) defined as a "hazardous substance" under the laws of the
State of Maryland, (ii) petroleum, (iii) asbestos, (iv) designated as a
"hazardous substance" pursuant to Section 311 of the Federal Water Pollution
Control Act (33 U.S.C. Section 1321), (v) defined as a "hazardous waste"
pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act,
42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), (vi) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42
U.S.C. Section 9601), or (vii) defined as a "regulated substance" pursuant to
Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage
Tanks), 42 U.S.C. Section 6991 et seq.
47. Americans With Disabilities Act. Notwithstanding any other provisions
contained in this Lease and with the purpose of superseding any such provisions
herein that might be construed to the contrary, it is the intent of Landlord and
Tenant that at all times while this Lease shall be in effect that the following
provisions shall be deemed their specific agreement as to how the responsibility
for compliance (and cost) with the Americans With Disabilities Act and
amendments to same ("ADA"), both as to the Premises and the Property, shall be
allocated between them, namely:
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47.1 Landlord and Tenant agree to cooperate together in the initial
design, planning and preparation of specifications for construction of the
Premises so that same shall be in compliance with the ADA. Any costs associated
with assuring that the plans and specifications for the construction of the
Premises are in compliance with the ADA shall be borne by the party whose
responsibility it is hereunder to bear the cost of preparation of the plans and
specifications. Similarly those costs incurred in the initial construction of
the Premises so that same are built in compliance with the ADA shall be included
within Tenant's Improvements and handled in the manner as provided for in other
Sections of this Lease.
47.2 Modifications, alterations and/or other changes required to and
within the Common Areas which are not capital in nature shall be the
responsibility of Landlord to perform and the cost of same shall be considered a
part of the Building Expenses and treated as such.
47.3 Modifications, alterations and/or other changes required to and
within the Common Areas which are capital in nature shall be the responsibility
of Landlord and at its cost and expense.
47.4 Modifications, alterations and/or other changes required to and
within the Premises (after the initial construction of same), whether capital in
nature or non-capital in nature, shall be the responsibility of Tenant and at
its cost and expense; unless the changes are structural in nature and result
from the original design of the Building, in which instance they shall be the
responsibility of Landlord and at its cost and expense.
Each party hereto shall indemnify and hold harmless the other party
from any and all liability, loss, cost or expense arising as a result of a party
not fulfilling its obligations as to compliance with the ADA as set forth in
this Section.
48. Several Liability. If Tenant shall be one or more individuals,
corporations or other entities, whether or not operating as a partnership or
joint venture, then each such individual, corporation, entity, joint venturer or
partner shall be deemed to be both jointly and severally liable for the payment
of the entire rent and other payments specified herein.
49. Financial Statements. Tenant represents and warrants to Landlord that
the financial statements heretofore delivered by Tenant to Landlord are true,
correct and complete in all respects, have been prepared in accordance with
generally accepted accounting principles, and fairly represent the financial
condition of Tenant as of the date thereof, and that no material change has
thereafter occurred in the financial conditions reflected therein. Within
fifteen (15) days after request from Landlord, Tenant agrees to deliver to
Landlord such future financial statements and other information as Landlord from
time to time may reasonably request.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively affixed their
hands and seals to this Lease as of the day and year first above written.
WITNESS OR ATTEST: LANDLORD:
COMMONS OFFICE RESEARCH, LLC
_________________ By: /s/ ROGER A. WAESCHE, JR. (SEAL)
-------------------------
Roger A. Waesche, Jr.
Senior Vice President
WITNESS OR ATTEST: TENANT:
DIALYSIS CORPORATION OF AMERICA
_________________ By: _____________________(SEAL)
Name:____________________________
Title:___________________________
STATE OF MARYLAND, ____________________, TO WIT:
I HEREBY CERTIFY, that on this day of , 2001, before me, the
undersigned Notary Public of the State, personally appeared Roger A. Waesche,
Jr., who acknowledged himself to be the Senior Vice President of COMMONS OFFICE
RESEARCH, LLC, a Maryland limited liability company, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument, and acknowledged that he executed the same on behalf of the
corporation for the purposes therein contained as the duly authorized Vice
President of the corporation by signing the name of the corporation by himself
as such Vice President.
WITNESS my hand and Notarial Seal.
Notary Public
My Commission Expires:
COMMONWEALTH OF PENNSYLVANIA, ____________________, TO WIT:
I HEREBY CERTIFY, that on this day of , 2000, before me, the
undersigned Notary Public of the State, personally appeared , known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument, and acknowledged himself/herself to be the of DIALYSIS CORPORATION
OF AMERICA, a ___________ corporation, and that he/she, as such , being
authorized so to do, executed the foregoing instrument on behalf of the
Corporation by himself/herself as such .
WITNESS my hand and Notarial Seal.
Notary Public
My Commission Expires:
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EXHIBIT "A"
to Agreement of Lease by and between
COMMONS OFFICE RESEARCH, LLC, Landlord
and DIALYSIS CORPORATION OF AMERICA, Tenant
FLOOR PLAN
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EXHIBIT "B"
to Agreement of Lease by and between
COMMONS OFFICE RESEARCH, LLC, Landlord
and DIALYSIS CORPORATION OF AMERICA, Tenant
RULES AND REGULATIONS
To the extent that any of the following Rules and Regulations, or any
Rules and Regulations subsequently enacted conflict with the provisions of the
Lease, the provisions of the Lease shall control.
1. Tenant shall not obstruct or permit its agents, clerks or servants
to obstruct, in any way, the sidewalks, entry passages, corridors, halls,
stairways or elevators of the Building, or use the same in any other way than as
a means of passage to and from the offices of Tenant; bring in, store, test or
use any materials in the Building which could cause a fire or an explosion or
produce any fumes or vapor; make or permit any improper noises in the Building;
smoke in the elevators; throw substances of any kind out of the windows or
doors, or down the passages of the Building, in the halls or passageways; sit on
or place anything upon the window sills; or clean the windows.
2. Waterclosets and urinals shall not be used for any purpose other
than those for which they were constructed; and no sweepings, rubbish, ashes,
newspaper or any other substances of any kind shall be thrown into them. Waste
and excessive or unusual use of electricity or water is prohibited.
3. Tenant shall not (i) obstruct the windows, doors, partitions and
lights that reflect or admit light into the halls or other places in the
Building, or (ii) inscribe, paint, affix, or otherwise display signs,
advertisements or notices in, on, upon or behind any windows or on any door,
partition or other part of the interior or exterior of the Building without the
prior written consent of Landlord which shall not be unreasonably withheld. If
such consent be given by Landlord, any such sign, advertisement, or notice shall
be inscribed, painted or affixed by Landlord, or a company approved by Landlord,
but the cost of the same shall be charged to and be paid by Tenant, and Tenant
agrees to pay the same promptly, on demand.
4. No contract of any kind with any supplier of towels, water, ice,
toilet articles, waxing, rug shampooing, venetian blind washing, furniture
polishing, lamp servicing, cleaning of electrical fixtures, removal of waste
paper, rubbish or garbage, or other like service shall be entered into by
Tenant, nor shall any vending machine of any kind be installed in the Building,
without the prior written consent of Landlord, which consent of Landlord shall
not be unreasonably withheld.
5. When electric wiring of any kind is introduced, it must be
connected as directed by Landlord, and no stringing or cutting of wires shall be
allowed, except with the prior written consent of Landlord which shall not be
unreasonably withheld, and shall be done only by contractors approved by
Landlord. The number and location of telephones, telegraph instruments, electric
appliances, call boxes, etc., shall be subject to Landlord's approval. No
tenants shall lay linoleum or other similar floor covering so that the same
shall be in direct contact with the floor of the Premises; and if linoleum or
other similar floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor by a paste or other material,
the use of cement or other similar adhesive material being expressly prohibited.
6. No additional lock or locks shall be placed by Tenant on any door
in the Building, without prior written consent of Landlord. Two keys will be
furnished Tenant by Landlord; two additional keys will be supplied to Tenant by
Landlord, upon request, without charge; any additional keys requested by Tenant
shall be paid for by Tenant. Tenant, its agents and employees, shall not have
any duplicate keys made and shall not change any locks. All keys to doors and
washrooms shall be returned to Landlord at the termination of the tenancy, and
in the event of any loss of any keys furnished, Tenant shall pay Landlord the
cost thereof.
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7. Tenant shall not employ any person or persons other than Landlord's
janitors for the purpose of cleaning the Premises, without prior written consent
of Landlord which shall not be unreasonably withheld. Landlord shall not be
responsible to Tenant for any loss of property from the Premises however
occurring, or for any damage done to the effects of Tenant by such janitors or
any of its employees, or by any other person or any other cause.
8. No bicycles, vehicles or animals of any kind (other than animals to
assist the disabled) shall be brought into or kept in or about the Premises.
9. Tenant shall not conduct, or permit any other person to conduct,
any auction upon the Premises; manufacture or store goods, wares or merchandise
upon the Premises, without the prior written approval of Landlord, except the
storage of usual supplies and inventory to be used by Tenant in the conduct of
its business; permit the Premises to be used for gambling; make any unusual
noises in the Building; permit to be played any musical instrument in the
Premises; permit to be played any radio, television, recorded or wired music in
such a loud manner as to disturb or annoy other tenants; or permit any unusual
odors to be produced upon the Premises. Tenant shall not permit any portion of
the Premises to be used for the storage, manufacture, or sale of intoxicating
beverages, narcotics, tobacco in any form, or as a barber or manicure shop.
10. 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 or hung in, or used in connection with, any window or door of the Premises,
without the prior written consent of Landlord which consent shall not be
unreasonably withheld. Such curtains, blinds and shades must be of a quality,
type, design, and color, and attached in a manner reasonably approved by
Landlord.
11. Canvassing, soliciting and peddling in the Building are prohibited,
and Tenant shall cooperate to prevent the same.
12. There shall not be used in the Premises or in the Building, either
by Tenant or by others in the delivery or receipt of merchandise, any hand
trucks except those equipped with rubber tires and side guards, and no hand
trucks will be allowed in passenger elevators.
13. Tenant, before closing and leaving its Premises, shall ensure that
all entrance doors to same are locked.
14. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's opinion tends to impair the reputation of the Building or
its desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
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 the use of the name of the Building for all
purposes, except that Tenant may use the name as its business address
and for no other purpose;
(b) the right to change the name or address of the Building, without
incurring any liability to Tenant for so doing;
(c) the right to install and maintain a sign or signs on the exterior
of the Building;
(d) the exclusive right to use or dispose of the use of the roof of the
Building;
(e) the non-exclusive right to use the area above the ceiling of the
Premises for the purpose of installing and maintaining
telecommunications, water lines, utility lines, other conduit,
sprinklers, drainlines, ductwork and HVAC connections and any other
equipment necessary to provide services to any area in the Building;
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(f) the right to limit the space on the directory of the Building to be
allotted to Tenant;
(g) the right to grant to anyone the right to conduct any particular
business or undertaking in the Building.
16. As used herein the term "Premises" shall mean and refer to the
"Premises" as defined in Section 1 of the Lease.
17. Tenant shall not operate space heaters or other heating or
ventilating equipment without the express prior written consent of Landlord in
each instance first obtained. Tenant shall not install or operate any electrical
equipment, appliances or lighting fixtures in the Premises which are not listed
and labeled by Underwriter's Laboratories or other testing organization
acceptable to Landlord.
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EXHIBIT "C"
to Agreement of Lease by and between
COMMONS OFFICE RESEARCH, LLC, Landlord
and DIALYSIS CORPORATION OF AMERICA, Tenant
SCHEDULE OF TENANT IMPROVEMENTS
Landlord shall perform the following work in the Premises;
o Carpet
o Paint
o Relocate one (1) wall
o Add one (1) closet and one (1) door.
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EXHIBIT "D"
to Agreement of Lease by and between
COMMONS OFFICE RESEARCH, LLC, Landlord
and DIALYSIS CORPORATION OF AMERICA, Tenant
ESTOPPEL CERTIFICATE
TENANT ESTOPPEL CERTIFICATE
To: Allstate Life Insurance Company, its successors and assigns ("Lender")
3075 Sanders Road, Suite G5C
Northbrook, IL 60062-7127
Attn: Commercial Mortgage Division Servicing Manager
Re: Lease Agreement dated _________________ and amended ___________________
("Lease"), between _________________________________________________ as
"Landlord," and ___________________________________________________, as
"Tenant," guaranteed by _______________________________________________
("Guarantor") for leased premises known as (suite or separate Tenant
address) ____________________________________________________(the
"Premises") of the property commonly known as (address) _______________
_____________________________________________________ (the "Property").
1. Tenant hereby certifies that the following representations with respect
to the Lease are accurate and complete as of the date hereof:
(a) Dates of all amendments, letter ______________________________
agreements,modifications and waivers related to the Lease
(b) Commencement Date _________________________________________
(c) Expiration Date _________________________________________
(d) Current Annual Base Rent
_________________________________________
Adjustment Date Rental Amount
--------------- -------------
(e) Fixed or CPI Rent Increases _________________________
(f) Square Footage of Premises _____________
(g) Security Deposit Paid to Landlord _____________
(h) Renewal Options: _____
Additional Terms for __ years at $________ per year
(i) Termination Options Termination Date
____________________
Fees Payable: ____________________
Explain Termination Option: __________________________________
______________________________________________________________
Tenant further certifies to Lender that:
(a) the Lease is presently in full force and effect and represents
the entire agreement between Tenant and Landlord with respect
to the Premises;
(b) the Lease has not been assigned and the Premises have not been
sublet by Tenant;
(c) Tenant has accepted and is occupying the Premises, all
construction required by the Lease has been completed and any
payments, credits or abatements required to be given by
Landlord to Tenant have been given;
(d) Tenant is open for business or is operating its business at
the Premises;
(e) no installment of rent or other charges under the Lease other
than current monthly rent has been paid more than 30 days in
advance and Tenant is not in arrears on any rental payment or
other charges;
(f) Landlord has no obligation to segregate the security deposit
or to pay interest thereon;
(g) Landlord is not in default under the Lease and no event has
occurred which, with the giving of notice or passage of time,
or both, could result in a default by Landlord;
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(h) Tenant has no existing defenses, offsets, liens, claims or
credits against the payment obligations under the Lease;
(i) Tenant has not been granted any options or rights to terminate
the Lease earlier than the Expiration Date (except as stated
in Paragraph 1 (i);
(j) Tenant has not been granted any options or rights of first
refusal to purchase the Premises or the Property;
(k) Tenant has not received notice of violation of any federal,
state, county or municipal laws, regulations, ordinances,
orders or directives relating to the use or condition of the
Premises or the Property; and
(l) other than hazardous materials in quantities and of types
reasonably and customarily associated with general office use
which are stored, used and disposed of in compliance with
applicable laws and which do not require compliance with any
reporting requirements under any law, no hazardous wastes or
toxic substances, as defined by all applicable federal, state
or local statutes, rules or regulations have been disposed,
stored or treated on or about the Premises or the Property by
Tenant.
(m) the Lease does not give the Tenant any operating exclusives
for the Property.
2. This certification is made with the knowledge that Allstate Life
Insurance Company and/or its parent, subsidiary or other affiliate
is/are about to provide Landlord with financing which shall be secured
by a Deed of Trust (or Mortgage), Security Agreement and Assignment of
Rents, Leases and Contracts ("Mortgage") upon the Property. Tenant
acknowledges and agrees that Allstate Life Insurance Company and/or its
parent, subsidiary or other affiliate and their respective successors
and assigns holding the Mortgage at any time after the date of this
Certificate shall have the right to rely on the information contained
in this Certificate as if they were the original addressee thereof.
Tenant acknowledges that Landlord's interest in the Lease is being duly
assigned to Lender as security for Lender's loan to Landlord. All rent
payments under the Lease shall continue to be paid to Landlord in
accordance with the terms of the Lease until Tenant is notified
otherwise in writing by Lender or its successors and assigns. In the
event that Lender succeeds to Landlord's interest under the Lease,
Tenant agrees to attorn to Lender at Lender's request and Lender agrees
that unless Tenant is in default under the Lease, the Lease will remain
in full force and effect. The undersigned is authorized to execute this
Tenant Estoppel Certificate on behalf of Tenant.
[TENANT]
By: ________________________________
Its: ________________________________
Date: ________________________________
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EXHIBIT "E"
to Agreement of Lease by and between
COMMONS OFFICE RESEARCH, LLC, Landlord
and DIALYSIS CORPORATION OF AMERICA, Tenant
FORM OF
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
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EXHIBIT "F"
to Agreement of Lease by and between
COMMONS OFFICE RESEARCH, LLC, Landlord
and DIALYSIS CORPORATION OF AMERICA, Tenant
FORM OF COMMENCEMENT DATE AGREEMENT
COMMENCEMENT DATE AGREEMENT
---------------------------
THIS COMMENCEMENT DATE AGREEMENT is made this _______ day of
__________, 200__, between COMMONS OFFICE RESEARCH, LLC ("Landlord") and
DIALYSIS CORPORATION OF AMERICA ("Tenant").
Landlord and Tenant have entered into a certain Agreement of Lease (the
"Lease") dated ____________,200_ demising certain space consisting of
___________ rentable square feet in the in the building located at and having an
address of ___________________ (the "Building"). All of the capitalized terms
herein shall have the same respective definitions as set forth in the Lease.
Pursuant to the provisions of Article 3 of the Lease, Landlord and
Tenant, intending to be legally bound hereby, acknowledge and agree that the
Commencement Date shall be the ________ day of ___________,200_, and that the
term of the Lease shall end on the _____ day of __________, 20__, at 11:59 p.m.,
unless sooner terminated or extended, as provided in the Lease. As supplemented
hereby, the Lease shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Commencement Date Agreement on this _____ day of ________, 200_.
WITNESS OR ATTEST: LANDLORD:
COMMONS OFFICE RESEARCH, LLC
_________________ By: /s/ ROGER A. WAESCHE, JR. (SEAL)
-------------------------
Name: Roger A. Waesche, Jr.
Title: Senior Vice President
WITNESS OR ATTEST: TENANT:
DIALYSIS CORPORATION OF AMERICA
_________________ By: _____________________(SEAL)
Name:____________________________
Title:___________________________
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COMMENCEMENT DATE AGREEMENT
THIS COMMENCEMENT DATE AGREEMENT is made this _______ day of
__________, 2001, between COMMONS OFFICE RESEARCH, LLC ("Landlord") and DIALYSIS
CORPORATION OF AMERICA ("Tenant").
Landlord and Tenant have entered into a certain Agreement of Lease (the
"Lease") dated June 11, 2001 demising certain space consisting of 2,330 rentable
square feet in the in the building located at and having an address of 1344
Ashton Road, Hanover, Maryland 21076 (the "Building"). All of the capitalized
terms herein shall have the same respective definitions as set forth in the
Lease.
Pursuant to the provisions of Article 3 of the Lease, Landlord and
Tenant, intending to be legally bound hereby, acknowledge and agree that the
Commencement Date shall be the 2nd day of July, 2001, and that the term of the
Lease shall end on the 31st day of July, 2006, at 11:59 p.m., unless sooner
terminated or extended, as provided in the Lease. As supplemented hereby, the
Lease shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Commencement Date Agreement on this _____ day of ________, 2001.
WITNESS OR ATTEST: LANDLORD:
COMMONS OFFICE RESEARCH, LLC
_________________ By: /s/ ROGER A. WAESCHE, JR. (SEAL)
-------------------------
Roger A. Waesche, Jr.
Senior Vice President
WITNESS OR ATTEST: TENANT:
DIALYSIS CORPORATION OF AMERICA
_________________ By: _____________________(SEAL)
Name:____________________________
Title:___________________________
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