Exhibit 10.15
NORTHTECH
BUSINESS PARK
TABLE OF CONTENTS
Article Page
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1. LEASE OF PREMISES ................................................ 1
2. DEFINITIONS ...................................................... 1
3. EXHIBITS AND ADDENDA ............................................. 2
4. DELIVERY OF POSSESSION ........................................... 3
5. RENT ............................................................. 3
6. INTERST AND LATE CHARGES ......................................... 4
7. SECURITY DEPOSIT ................................................. 4
8. TENANT'S USE OF THE PREMISES ..................................... 4
9. SERVICES AND UTILITIES ........................................... 5
10. CONDITION OF THE PREMISES ........................................ 5
11. CONSTRIOTION, REPAIRS AND MAINTENANCE ............................ 5
12. ALTERATIONS AND ADDITIONS ........................................ 6
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY ........................ 6
14. RULES AND REGULATIONS ............................................ 6
15. CERTAIN RIGHTS RESERVED BY LANDLORD .............................. 7
16. ASSIGNMENT AND SUBLETTING ........................................ 7
17. HOLDING OVER ..................................................... 8
18. SURRENDER OF PREMISES ............................................ 8
19. DESTRUCTION OR DAMAGE ............................................ 8
20. EMINENT DOMAIN ................................................... 8
21. INDEMNIFICATION .................................................. 9
22. TENANT'S INSURANCE ............................................... 9
23. WAIVER OF SUBROGATION ............................................ 9
24. SUBORDINATION AND ATTORNMENT ..................................... 9
25. TENANT ESTOPPEL CERTIFICATES ..................................... 10
26. TRANSFER OF LANDLORD'S INTEREST .................................. 10
27. DEFAULT .......................................................... 10
28. BROKERAGE FEES ................................................... 12
29. NOTICES .......................................................... 12
30. GOVERNMENT ENERGY OR UTILITY CONTROLS ............................ 12
32. QUIET ENJOYMENT .................................................. 12
33. OBSERVANCE OF LAW ................................................ 12
34. FORCE MAJEURE .................................................... 12
35. CURING TENANT'S DEFAULTS ......................................... 12
36. SIGN CONTROL ..................................................... 12
37. HAZARDOUS SUBSTANCES ............................................. 13
38. PARKING .......................................................... 14
39. MISCELLANEOUS ................................................... 14
40. WAIVER OF JURY TRIAL ............................................. 15
EXHIBIT "A" ........................................................... 17
EXHIBIT "B" ........................................................... 18
EXHIBIT "C" ........................................................... 19
EXHIBIT "D" ........................................................... 26
NORTHTECH BUSINESS PARK
This lease between Real Estate Income Partners III, Limited Partnership,
("Landlord"), and International Data Products, Corp. ("Tenant"), is dated, for
reference purposes only, January 6, 1995.
1. LEASE OF PREMISES
In consideration of the Rent (as defined at Article 5) and the provisions of
this Landlord leases to Tenant and Tenant leases from Landlord the Premises
shown on the floor plan attached hereto as Exhibit "A", and further described
at section 2h. The Premises are located within the Building and Project
described in Section 2i. Tenant shall have the non-exclusive right (unless
otherwise provided herein) in common with Landlord, other tenants, subtenants
and invitees, to use of the Common Areas (as defined at Section 2f).
2. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
a. Commencement date: January 6, 1995.
b. Expiration Date; February 29, 2000, unless otherwise sooner terminated in
accordance with the provisions of this Lease.
c. Term: The period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
d. Total Base Rent: $2,224,179.12
e. Monthly Installments of Base Rent:
Period Monthly Base Rent
January 6, 1995 through & including February 28, 1995 $0.00
March 1, 1995 through & including February 29, 1996 $25,170.75
March 1, 1996 through & including February 28, 1997 $32,035.50
March 1, 1997 through & including February 28, 1998 $38,900.25
March 1, 1998 through & including February 28, 1999 $42,332.63
March 1, 1999 through & including February 29, 2000 $46,909.13
f. Common Areas: The Building lobbies, common corridors and hallways,
restrooms, parking areas, stairways, and other generally understood public
or common areas to the extent the same are not a part of the Premises.
Landlord shall have the right to regulate or restrict the use of the
Common Areas.
g. Parking: Tenant shall be permitted to park 219 cars on a non-exclusive
basis in the areas(s) designated by Landlord from time to time for
parking.
h. Premises: That portion of the Building containing approximately 54,918
square feet of Rentable Area, shown on Exhibit "A", located in and known
as NorthTech Business Park, Suite 100-200.
i. Project: The building of which the Premises are a part (the "Building")
located at 20 Firstfield Road, Gaithersburg, Maryland 20878 and any other
buildings or improvements on the real property (the "Property"), further
depicted on Exhibit "B", and known as NorthTech Business Park.
j. Rentable area: As to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to lease by
Tenant and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
k. Security Deposit: $46,909.13
l. Landlord's Mailing Address: Real Estate Income Partners III, 27611 La Paz
Road, P.O. Box 30009, Laguna Niguel, California 92607-0009, Attn: Asset
Manager.
With a copy to the Building Manager:
Birtcher Property Services, 8605 Westwood Center Drive, Suite 206, Vienna,
Virginia 22182.
Tenant's Mailing Address: 20 Firstfield Road, Gaithersburg, Maryland
20878.
m. State: The State of Maryland.
n. Tenant's Proportionate Share: The parties agree that Tenant's initial pro
rata share as described in Section 5.2b (1)(a) is 100%. Such share is a
fraction, the numerator of which is the Rentable Area of the Premises, and
the denominator or which is the Rentable Area of the Building, as
determined by Landlord from time to time. The parties further agree that
Tenant's initial pro rata share of the operating cost component of Project
Operating Costs as described in Section 5.2b(1)(b) is 33.6%. Such share is
a fraction, the numerator of which is the Rentable Area of the Premises,
and the denominator of which is the Rentable Area of the Project, as
determined by Landlord form time to time. If the area of the Premises, of
the Building or of the Project change, Tenant's appropriate pro rata share
shall be adjusted accordingly.
o. Tenant's Use Clause: Assembly of notebook personal computers and computer
hardware and related office use.
o. Broker(s)
Landlord's: Carey Winston Company
Tenant's: Manekin Corporation
In the event that Carey Winston Company represents both Landlord and Tenant,
Landlord and Tenant hereby confirm that they were timely advised of the dual
representation and that they consent to the same, and that they do not expect
said broker to disclose to either of them the confidential information of the
other party.
3. EXHIBITS AND ADDENDA
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
a. Exhibit "A" - Floor Plan showing the Premises.
b. Exhibit "B" - Site Plan of the Project
c. Exhibit "C" - Landlord's Work.
d. Exhibit "D" - Rules and Regulations.
e. Addenda:
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4. DELIVERY OF POSSESSION
"Delivery of possession" shall be deemed to occur on the Commencement Date.
5. RENT
5.1 Payment of Base Rent. Tenant agrees to pay the Base Rent for the
Premises. The monthly installments of Base Rent set forth at section
2e shall be payable in advance on or before the first day of each
calendar month of the Term. If the Term begins (or ends) on other
than the first (or last) day of a calendar month, the Base Rent for
the partial month shall be prorated on a per diem basis. Tenant shall
pay Landlord the first Monthly Installment of Base Rent when Tenant
executes the Lease.
5.2 Project Operating Costs.
a. Effective as of March 1, 1995, Tenant agrees to pay to Landlord as
Rent, Tenant's Proportionate Share of all costs, expenses and
obligations attributable to the Project and its operating, all as
provided below.
b. During each calendar year during the Term, Tenant shall pay to
landlord, in addition to the Base Rent and all other payments due
under this Lease, an amount equal to Tenant's Proportionate Share
of Project Operating Costs in accordance with the provisions of
this Section 5.2b.
(1) The term "Project Operating Costs" shall include all those
items described in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and other
similar governmental charges levied on or attributable to the
Building or Project or their operation, including without
limitation, (i) real property taxes or assessments due and
payable against the Building or Project, (ii) assessments or
charges due and payable against the Building or Project by
any redevelopment agency or any front foot benefit charges,
(iii) any tax measured by gross rental received from the
leasing of the Premises, Building or Project, excluding any
net income, franchise, capital stock, estate or inheritance
taxes imposed by the State or federal government or their
agencies, branches, branches or departments; provided that if
at any time during the Term any governmental agency entity
levies, assesses or imposes on Landlord any (1) general or
special, ad valorem or specific excise, capital levy or other
tax, assessment, levy or charge directly on the Rent received
under this Lease or on the rent received under any other
leases of space in the Building or Project, (2) any license
fee, excise or franchise tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rent, or
(3) any transfer, transaction, or similar tax, assessment,
levy or charge based directly or indirectly upon the
transaction represented by this Lease or such other lease, or
(4) any occupancy, use per capita or other tax, assessment,
levy or charge based directly or indirectly upon use or
occupancy of Premises or other premises within the building
or Project, then any such taxes, assessments, levies and
charges shall be deemed to be included in the term Project
Operating Costs. Project Operating Costs shall also include
all costs incurred by Landlord in protesting the amount or
real property taxes or assessments levied against the
Building or Project, including without limitation, reasonable
attorney's fees.
(b) Operating costs incurred by Landlord in maintaining and
operating the Building and Project, including without
limitation the following: costs of (1) utilities; (2)
supplies; (3) insurance (including public liability, property
damage, earthquake, and fire and extended coverage insurance)
for the full replacement cost of the Building and Project as
required by Landlord or ites lenders for the Project; (4)
services of independent contractors; (5) compensation
(including employment taxes and fringe benefits) of all
persons who perform duties connected with the operation,
maintenance, repair or overhaul of the Building or Project ,
and equipment, improvements and facilities located within the
Project, including, without limitation engineers, janitors,
painters, floor waxers, window washers, security and parking
personnel and gardeners (but excluding persons performing
services not uniformly available to or performed for
substantially all Building or Project tenants); (6) operation
and maintenance of room for delivery and distribution of mail
to tenants of the Building or Project as required by the U.S.
Postal Service (including, without limitation, an amount
equal to the fair market rental value of the mail room
premises); (7) management of the Building or Project ,
whether managed by Landlord or an independent contractor
(including, without limitation, an amount equal to the fair
market rental value of any on-site manager's office); (8)
rental expenses for (or a reasonable depreciation allowance
on) personal property used in the maintenance, operation or
repair of the Building or Project; (9) costs, expenditures or
charges (whether capitalized or not) required by any
governmental or quasi-governmental authority; (10)
amortization of capital expenses (including financing costs)
(i) required by a governmental entity for energy conservation
or life safety purposes, or (ii) made by Landlord which are
reasonably intended to reduce Project Operating Costs; and
(11) any other costs or expenses incurred by Landlord under
this Lease and not otherwise reimbursed by tenants of the
Project.
(2) Tenant's Proportionate Share or Project Operating Costs shall
be payable by Tenant to Landlord as follows:
(a) Each calendar year, Tenant shall pay Landlord an amount
equal to Tenant's Proportionate Share of the Project
Operating Costs incurred by Landlord in maintaining and
operating the Building and Project.
(b) To provide for current payments of Tenant's Proportionate
Share of the Project Operating Costs payable during each
calendar year, as estimate by Landlord from time to time.
Such payments shall be made in monthly installments,
commending on the first day of the month following the month
in which Landlord notifies Tenant of the amount it is to pay
hereunder and continuing until the first day of the month
following the month in which Landlord gives Tenant a new
notice of estimated Project Operating Costs. It is the
intention hereunder to estimate from time to time the amount
of the Project Operating Costs for each calendar year and
Tenant's Proportionate Share thereof, and then to make an
adjustment in the following year based on the actual Project
Operating Costs incurred for the preceding calendar year.
(c) On or before April 1 of each calendar year (or as soon
thereafter as is practical), Landlord shall deliver to Tenant
a statement setting forth Tenant's proportionate share of
Project Operating Costs for the preceding calendar year. If
Tenant's Proportionate Share of the actual Project Operating
Costs for the previous calendar year exceed the total of the
estimate monthly payments made by Tenant for such year,
Tenant shall pay Landlord the amount of the deficiency within
ten (10) days of the receipt of the statement. If such total
exceeds Tenant's Proportionate Share of the actual Project
Operating Costs for such calendar
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year, then Landlord shall credit against Tenant's next
ensuing monthly installment(s) of additional rent an amount
equal to the difference until the credit is exhausted. If a
credit is due from Landlord on the Expiration Date, Landlord
shall pay Tenant the amount of the credit. The obligations of
Tenant and Landlord to make payments required under this
Section 5.2 shall survive the Expiration Date.
(d) Tenant's Proportionate Share of Project Operating Costs
in any lease year having less than 365 days shall be prorated
on a per diem basis.
(e) If any dispute arises as to the amount of additional rent
due hereunder, Tenant shall have the right after reasonable
notice and at reasonable times to inspect Landlord's
accounting records at Landlord's accounting office and, if
after such inspection Tenant still disputes the amount of
additional rent owed, a certification as to the proper amount
shall be made by Landlord's certified public accountant,
which certification shall be final and conclusive. Tenant
agrees to pay the cost of such certification unless it is
determined that Landlord's original statement overstated
Project Operating Costs by more than 5%.
5.3 Definition of Rent. All costs and expenses which Tenant assumes or
agrees to pay to Landlord under this Lease shall be deemed additional
rent (which, together with the Base Rent is sometimes referred to as
the "Rent"). The Rent shall be paid to the Building manager (or other
person) as set forth in Section 2), or at such place, as Landlord may
from time to time designate in writing without any prior demand
therefor and without deduction or offset, in lawful money of the
United States of America.
5.4 Rent Control. If the amount of Rent or any other payment due under
this Lease violates the terms of any governmental restrictions on
such Rent or payment, then the Rent or payment due during the period
of such restrictions shall be the maximum amount allowable under
those restrictions. Upon termination of the restrictions, Landlord
shall, to the extent it is legally permitted, recover from Tenant the
difference between the amounts received during the period of the
restrictions and the amounts Landlord would have received had there
been no restrictions.
5.5 Taxes Payable by Tenant. In addition to the Rent and any other
charges to be paid by Tenant hereunder, Tenant shall reimburse
Landlord upon demand for any and all taxes payable by Landlord (other
than net income taxes) which are not otherwise reimbursable under
this Lease, whether or not now customary or within the contemplation
of the parties, where such taxes are upon, measured by or reasonably
attributable to (a) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the
Premises, or the cost or value of any leasehold improvements made in
the or to the Premises by or for Tenant, regardless of whether title
to such improvements is held by Tenant or Landlord; (b) the gross or
net Rent payable under this Lease, including, without limitation, any
rental or gross receipts tax levied by any taxing authority with
respect to the receipt of the Rent hereunder; (c) the possession,
leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises or any portion thereof; or (d)
this transaction or any document to which Tenant is a party creating
or transferring an interest or an estate in the Premises. If it
becomes unlawful for Tenant to reimburse Landlord for any costs as
required under this Lease, the Base Rent shall be revised to net
Landlord the same net rent after imposition of any tax or other
charge upon Landlord as would have been payable to Landlord but for
the reimbursement being unlawful.
6. INTEREST AND LATE CHARGES
If Tenant fails to pay when due any Rent or other amounts or charges which
Tenant is obligated to pay under the terms of this Lease, the unpaid
amounts shall bear the interest at the lesser of fifteen percent (15% )
per annum or the maximum rate then allowed by law. Tenant acknowledges
that the late payment of Rent will cause Landlord to lose the use of that
money and incur costs and expenses not contemplated under this Lease,
including, without limitation, administrative and collection costs and
processing and accounting expenses, within ten (10) days from the date it
is due, Tenant shall pay Landlord's late charge equal to five percent (5%)
of such compensation to Landlord for the loss suffered from such
nonpayment by Tenant. Acceptance of any interest or late charge shall not
constitute a waiver of Tenant's default with respect to such nonpayment by
Tenant nor prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease.
7. SECURITY DEPOSIT
Tenant agrees to deposit with Landlord the Security Deposit set forth at
Section 2K upon the execution of this Lease, as security for Tenant's
faithful performance of its obligations under this Lease. Landlord and
Tenant agree that the Security Deposit may be commingled with funds of
Landlord and Landlord shall have no obligation or liability for payment of
interest on such deposit. Tenant shall not mortgage, assign, transfer or
encumber the Security Deposit without the prior written consent of
Landlord and any attempt by Tenant to do so shall be void, without force
or effect and shall not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable under
this Lease, or fails to perform any of the terms hereof, Landlord may
appropriate and apply or use all or any portion of the Security Deposit
for Rent payment or any other amount then due and unpaid, for payment of
any amount for which Landlord has become obligated as a result of Tenant"
default or breach, and for any loss or damage sustained by Landlord as a
result of Tenant's default or breach, and Landlord may so apply or use
this deposit without prejudice to any other remedy Landlord may have by
reason of Tenant's default or breach. If Landlord so uses any of the
Security Deposit, Tenant shall, within ten (10) days after written demand
therefor, restore the Security Deposit to the full amount originally
deposited; Tenant's failure to do so shall constitute an act of default
hereunder and Landlord shall have the right to exercise any remedy
provided for at Article 27 hereof. Within fifteen (15) days after the term
(or any extension thereof) has expired or Tenant has vacated the Premises,
whichever shall last occur, and provided Tenant is not then in default on
any of its obligations hereunder, Landlord shall return the Security
Deposit to Tenant, or if Tenant has assigned its interest under this
Lease, to the last assignee of Tenant. If Landlord sells its interest in
the Premises, Landlord may deliver this deposit to the purchaser of
Landlord's interest and thereupon be relieved of any further liability or
obligation with respect to the Security Deposit.
8. TENANT'S USE OF THE PREMISES
Tenant shall use the Premises solely for the purposes set forth in
Tenant's Use Clause. Tenant shall not use or occupy the Premises in
violation of law or any covenant, condition or restriction affecting the
Building or Project or the certificate of occupancy issued for the
Building or Project, and shall, upon notice from Landlord, immediately
discontinue any use of the Premises which is declared by an governmental
authority having jurisdiction to be a violation of law or the certificate
of occupancy issued for the governmental authority having jurisdiction to
be a violation of law or the certificate of occupancy issued for the
Building or Project, and shall, upon notice from Landlord, immediately
discontinue any use of the Premises which is declared by an governmental
authority having jurisdiction to be a violation of law or the certificate
of occupancy. Tenant, at Tenant's own cost and expense shall comply with
all laws, ordinances, regulations, rules and/or any directions of any
governmental agencies or authorities having jurisdiction which shall, by
reason of the nature of Tenant's use or occupancy of the Premises, impose
any duty upon Tenant or Landlord with respect to the Premises or its use
or occupation. A judgment of any court of competent jurisdiction or the
admission by Tenant in any action or proceeding against Tenant that Tenant
has violated any such laws, ordinances, regulations, rules and/or
directions in the use of the Premises shall be deemed to be a conclusive
determination of that fact as between Landlord and Tenant. Tenant shall
not do or permit to be done anything which will invalidate or increase the
cost of any fire, extended coverage or other insurance policy covering the
Building or Project and/or property located therein, and shall comply with
all rules, orders, regulations, requirements and recommendations of the
Insurance Services Office or any other organization performing a similar
function. Tenant shall promptly upon demand reimburse Landlord for any
additional premium charged for such policy by reason of Tenant's failure
to comply with the provisions
Page 4
of this Article. Tenants shall not do or permit anything to be done in
or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building or Project, or
injure or annoy them, or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises.
Tenant shall not commit or suffer to be committed any waste in or upon the
Premises.
9. SERVICES AND UTILITIES
Tenant shall make arrangements directly with the telephone company,
electrical company and other public utilities servicing the Premises for
telephone service, electrical current and power and other utilities in the
Premises desired by Tenant. Tenant shall pay the entire cost of all
telephone service, electricity consumed within the Premises, maintenance
of light fixtures and replacement of lights, bulbs, tubes , ballasts and
starters. Tenant acknowledges that the cost of providing hot water to and
heating and air conditioning the Premises is included in Tenant's utility
charges and Tenant shall have full responsibility for the payment thereof.
Landlord shall in no event be liable or responsible to Tenant for any
loss, damage or expense which Tenant may sustain or incur if either the
quality or character of telephone service, electrical service or other
utilities serving the Premises is changed or is no longer suitable for
Tenant's requirements. Tenant's use of electric current shall never exceed
the capacity of existing wiring, insulation or feeders to the Building or
the Premises, and Tenant shall make no alterations or additions to the
electrical equipment and/or appliances without the prior written consent
of Landlord in each instance. Tenant shall not connect any apparatus with
electric current, except through existing electrical outlets in the
Premises.
Landlord agrees to furnish water to the Premises (if applicable), and to
provide water, electricity and heating, ventilation and air conditioning
("HVAC") to the Common Areas during generally recognized business days,
and during hours determined by Landlord in its sole discretion. Landlord
shall also maintain and keep lighted the Common Areas, common entries and
restrooms in the Building. Landlord shall not be in default hereunder or
be liable for any damages directly or indirectly resulting from, nor shall
the Rent be abated by reason of (i) the installation, use or interruption
of use of any equipment in connection with the furnishing of any of the
foregoing services, (ii) failure to furnish or delay in furnishing such
services any such services where such failure or delay is caused by
accident or any condition or event beyond the reasonable control of
Landlord, or by the making of necessary repairs or improvements to the
Premises, Building or Project, or (iii) the limitation, curtailment or or
rationing of, or restrictions on, use of water, electricity, gas or any
other form of energy serving the Premises, Building or Project. Landlord
shall not be liable under any circumstances for a loss of or injury to
property or business, however occurring , through or in connection with or
incidental to failure to furnish any such services.
Tenant shall not consume water in excess of that usually furnished or
supplied for the use of premises as general office space (as determined by
Landlord) without first procuring the written consent of Landlord, which
Landlord may refuse, and in the event of consent, Landlord may have
installed a water meter in the Premises to measure the amount of water
consumed. The cost of any such meter and of its installation, maintenance
and repair shall be paid for by the Tenant and Tenant agrees to pay to
Landlord promptly upon demand for all such water consumed as shown by said
meter, at the rates charged for such services by the local public utility
plus any additional expense incurred in keeping account of the water so
consumed. If a separate meter is not installed, the excess cost for such
water shall be established by an estimate made by a utility company hired
by Landlord at Tenant's expense.
Nothing contained in this Article shall restrict Landlord's right to
require at any time separate metering of utilities furnished to the
Premises. In the event utilities are separately metered, Tenant shall say
promptly upon demand for all utilities consumed at utility rates charged
by the local public utility plus any additional expense incurred by by
Landlord in keeping account of the utilities so consumed. Tenant shall be
responsible for the maintenance and repair of any such meters at its sole
cost.
10.CONDITION OF THE PREMISES
Tenant's taking possession of the Premises shall be deemed conclusive
evidence that as of the date of taking possession the Premises are in good
order and satisfactory condition, except for such matters as to which
Tenant gave Landlord notice on or before the Commencement Date. No promise
of Landlord to alter, remodel, repair or improve the Premises, the
Building, Project or this Lease (including, without limitation, the
condition of the Premises, the Building or the project) have been made to
Tenant by Landlord or its Broker or Sales Agent. TENANT AGREES THAT IT
ACCEPTS THE PREMISES IN ITS "AS IS" CONDITION. Tenant shall perform
certain tenant improvements in accordance with the Work Letter attached as
Exhibit "C".
11.CONSTRUCTION, REPAIRS AND MAINTENANCE
a. Landlord's Obligations. Landlord shall maintain in good order, condition
and repair the Building, Common Areas and all other portions of the
Premises not the obligation of Tenant or of any other tenant in the
Project. Landlord shall furnish solely the following, the cost and expense
of all which shall be included within the term Project Operating Costs as
defined in Section 5.2:
(1) Landlord shall cause cold water to be piped to the Project and to
the Premises (if applicable);
(2) Landlord shall cause removal of snow accumulations from the parking
lot and sidewalks and cutting of the grass in the Common Areas
designated pursuant to Section 11b hereof;
(3) Landlord shall cause to be provided lighting for the exterior of
the Project and of the Common Areas in the Project; and
(4) Landlord shall cause to be maintained, repaired and replaced, when
necessary, the heating and air conditioning, water and all other
mechanical equipment, systems and fixtures applicable to the
Common Areas whether located on the roof to the Premises or in the
Premises. Landlord shall not be liable for damages, by abatement
of rent or otherwise, for failure to furnish, or delay in
furnishing, any one or more of the above, which failure or delay
is caused, in whole or in part, by war, insurrection, civil
disturbance, riots, acts of God, governmental action, repairs,
improvements, alterations, strikes, lockouts or picketing (whether
legal or illegal), inability to obtain electricity, fuel or
supplies, accidents, casualties, acts caused directly or
indirectly by Tenant (or Tenant's agents, representatives,
employees, licensees or invitees) any other act or cause beyond
the reasonable control of Landlord. Any such failure or delay in
furnishing the above shall be without any liability of Landlord to
Tenant and shall not be deemed to be an eviction or disturbance in
any manner of Tenant's use and possession of the Premises or
relieve Tenant from its obligation to pay all Rent when due, or
from any other obligation hereunder.
b. Common Areas. Tenant, its employees, agents and invitees, shall have the
nonexclusive right in common with Landlord and other tenants of the
Building or Project, and their respective employees, agents and invitees,
to the use of any and all driveways, common parking areas and other common
areas that may be designated by Landlord. Such use shall be subject to the
rules and regulations of the Landlord, and Tenant shall not obstruct or
store anything in any Common Area or allow any objectionable noises or
odors to emit from the Premises, or create or maintain a nuisance in any
Common Area, or shall not distribute, solicit or canvass any occupants of
the Building or Project.
c. Tenant's Obligations.
(1) Except for services frunished by Landlord pursuant to Article 9
hereof, Tenant at Tenant's sole expense shall maintain the
Premises in good order, condition and repair, including the
interior surfaces of the ceilings, walls and floors, all doors,
all interior windows, all plumbing, pipes and fixtures,
eelectrical wiring, switches and fixtures, building standard
furnishings and special items and equipment installed by or at the
expense of Tenant.
(2) Tenant shal be responsible for all repairs and alterations in and
to the Premises, Building and Project and the facilities and
systems thereof, the need for which arises out of (i) Tenant's use
or occupancy of the Premises, (ii) the installation,
Page 5
removal, use or operation of Tenant's Property (as defined in
Article 13) in the Premises, (iii) the moving of Tenant's Property
into or out of the building, or (iv) the act, omission, misuse or
negligence of Tenant, its agents, contractors, employees or
invitees.
(3) If Tenant fails to maintain the Premises in good order, condition
and repair, Landlord shall give Tenant notice to do such acts as
are reasonably required to so maintain the Premises. If Tenant
fails to promplty commence wuch work and diligently prosecute it
to completion, then Landlord shall have the right to do such acts
and expand such funds at the expense of Tenant as are reasonably
required to perform such work. Any amount so expended by Landlord
shall be paid by Tenant promptly after demand with interest, from
the date of such work, at the lesser of fifteen percent (15%) per
annum or the maximum rate than allowed by law. Landlord shall have
no liability to Tenant for any damage, inconvenience, or
interference with the use of the Premises by Tenant as a result of
performing any such work.
d. Compliance with Law. Landlord and Tenant shall each do all acts required
to comply with all applicable laws, ordinances, and rules of any public
authority relating to their respective maintenance obligations as set
forht herein. Landlord shall be responsible for compliance with the
requirements of Title III of the Americans with Disabilities Act of 1990
with respect to physical accessibiility to, within and about the Building
an dProject of which the Premises are apart. Tenant shall be responsible
for said compliance within the Premises, after the Commencemtn Date.
e. Waiver by Tenant. Tenant expressly waives the benefits of any statute now
or hareafter in effect which would otherwise afford the Tenant the right
to make repaiurs at Landlord's expense or to terminate this Lease because
of Landlord's failure to keep the Premises in good order, condition and
repair.
f. Load and Equipment Limits. Tenants shall not place a load upon any floor
of the Premises which exceeds the load per square foot which such floor
was designed to carry, as determined by Landlord or Landlor's structural
engineer. The cost of any such determination made by Landlord's structural
engineer shall be paid for b Tenant upon demand. Tenant shall not install
business machines or mechanical equipment which cause noise or vibration
to such a degree as to be objectionable to landlord or other Building
tenants.
g. Except as otherwise expressly provided in this Lease, Landlord shall have
no liablility to Tenant nor shall Tenant's obligations under this Lease be
reduced or abated in any manner whatsoever by reason of any inconvenience,
annoyance, interruption or injury to business arising from Landlord's
making any repairs or changes which Landlord is required or permitted by
this Lease or by any other tenant's lease or required by law to make in or
to any portion of the Project, Building or the Premises. Landlord shall
nevertheless use reasonable efforts to minimize any interference with
Tenant's business in the Premises.
h. Tenant shall give Landlord prompt notice of any damage to or defective
condition in any part of appurtenance of the Building's mechanical,
electrial, plumbing, HVAC or other systems serving, located in, or passing
through the Premises.
12.ALTERATIONS AND ADDITIONS
a. Tenant shall not make any additions, alterations, or improvements to the
Premises other than those described in the Work Letter attached hereto as
Exhibit "C" without obtaining the prior written consent of Landlord.
Landlord's consent may be withheld in Landlord's sole discretion or may be
conditioned on Tenant's removing any such additions, alterations or
improvements upon Landlord's election at or before the expiration of the
Term and restoring the Premises to the same condition as on the date
Tenant took possession. All work with respect to any addition, alteration
or improvement shall be done in a good ant workmanlike manner by properly
qualified and licensed personnel approved by Landlord, and such work shall
be diligently prosecuted to completion. Landlord may, at Landlord's
option, require that any such work will be performed by Landlord's
contractor, in which case the cost of such work shall be paid for before
commencement of the work. Tenant shall pay to Landlord upon completion of
any such work by Landlord's contractor, an administrative fee of fifteen
percent (15%) of the cost of the work. Landlord's review or any plans in
specification or consent to additions, alterations or improvements shall
not be construed as a warranty or certification that such plans and
specification or such additions, alterations or improvements are adequate
for any purpose or comply with applicable laws, ordinances, or
regulations, nor shall Landlor's approval or consent relieve Tenant from
the obligation of complying with such applicable laws, ordinances and
regulations.
b. Tenant shall pay the costs of any work done on the Premisies pursuant
to Section 12a, and shall keep the Premisies, Building and Project free
and clear of liens of any kind. Tenant shall indemnify, defend against
and keep Landlord free and harmless from all liability, loss, damage,
costs, attorneys' fees and any other expense incurred on account of
claims by any person performing work or furnishing materials or
supplies for Tenant or any person claiming under Tenant.
Tenant shall keep the Tenant's leasehold interest, and any additions or
improvements which are or become the property of Landlord under this
Lease, free and clear of all attachment or judgment liens. Befor ethe
actual commencement of any work for which a claim or lien may be filed,
Tenant shall give the Landlord notice of the intended commencement date a
sufficient time before that dat to enable Landlord to post notices of
non-responsibility or any other notices which Landlord shall have the
right to enter the Premises and post such notices at any reasonable time.
c. Landlord may require, at Landlord's sole option, that Tenant provide to
Landlord, at Tenant's expense, a lien and completion bond in amount equal
to at least one and one-half (1 1/2) times the total estimated cost of any
additions, alterations or improvements to be made in or to the Premises,
to protect Landlord against any liability for mechanic's and materialmen's
liens and to insure timely completion of the work. Nothing contained in
this Section 12c shall relieve Tenant of its obligation under Section 12b
to keep the Premises, Building and Project free of all liens.
d. Unless their removal is required by Landlord as provided in Section 12a,
all additions, alterations and improvements made to the Premises shall
become the property of Landlord and be surrendered with the Premises upon
the expiration of the Term; provided, however, Tenant's equipment,
machinery and trade fixtures which can be removed without damage to the
Premises shall remain the property of Tenant and may be removed, subject
to the provisions of Section 13b.
13.LEASEHOLD IMPROVEMENTS: TENANT'S PROPERTY
a. All fixtures, equipment, improvements and appurtenances attached to or
built into the Premises at the commencement of or during the Term, whether
or not by or at the expense of Tenant ("Leasehold Improvements"), shall be
and remain a part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided in Sections
12a, 12d or 13b.
b. All moveable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense to
Landlord, which can be removed without damage to the Building, and all
furniture, furnishings and other articles of moveable personal property
owned by tenant and located in the Premises (collectively "Tenant's
Property") shall be and shall remain the property of Tenant and may be
removed by Tenant at any time during the Term; provided that if any of
Tenant's Property is removed, Tenant shall proptly repair any damage to
the Premises or to the Building resulting from such removal.
Page 6
14.RULES AND REGULATIONS
Tenant agrees to comply with (and cause its agents, contractors, employees
and invitees to comply with) the rules and regulations attached hereto as
Exhibit "D" and with such reasonable modifications thereof and additions
thereto as Landlord may from time to time make. Landlord shall not be
responsible for any violation of said rules and regulations by other
tenants or occupants of the Building or Project.
15.CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord reserves the following rights, exercisable without liability to
Tenantfor (a) damage or injury to property, person or business, (b)
causing an actual or constructive eviction from the Premises, or
(c)disturbing Tenant's use or possession of the Premises:
a. To name the Building and Project and to change the name or street
address of the Building or Project;
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding Tenant's vaults and safes;
d. At any time during the Term, and on reasonable prior notice to Tenant,
to inspect the Premises, and to show the Premises to any prospective
purchaser or morgagee of the Project, or to any assignee of any
mortgage on the Project, to prospective tenants, or to others having an
Interest in the Project or Landlord; and
e. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or
blancing controls and other parts of the HVAC system), and to take all
steps as may be necessaryor desirable for the safety, protection,
maintenance or preservation of the Premises or the Building or
Landlord's interest therein, or as may be necessary or desirable for
the operation or improvement of the Building or in order to comply with
laws, orders or requirements of governmental or other authority.
Landlord agrees to use its good faith reasonable efforts (except in an
emergency) to minimize interference with Tenant's business in the
Premises in the course of any such entry.
16.ASSIGNMENT AND SUBLETTING
No assignment of this Lease or sublease of all or any part of the Premises
shall be permitted, except as provided in this Article 16.
a. Tenant shall not, without the prior written consent of Landlord, assign
or hypothecate this Lease or any interest herein or sublet the Premises
or any part thereof, or permit the use of the Premises by any party
other than Tenant. Any of the foregoing acts without such consent shall
be void and shall, at the option of Landlord, terminate this Lease.
This Lease shall not, nor shall any interest of Tenant herein, be
assignable by operation of law without the written consent of Landlord.
b. If at any time or from time to time during the Term Tenant desires to
assign this Lease or sublet all or any part of the Premises, Tenant
shall give notice to Landlord setting forth the terms and provisions of
the proposed assignment or sublease, and the identity of the proposed
assignee or subtenant. Tenant shall promptly supply Landlord with such
information concerning the business background and financial condition
of such proposed assignee or subtenant as Landlord may reasonably
request. Landlord shall have the option, exercisable by notice given to
Tenant within ten (10) business days after Tenant's notice is given,
either to sublet such space from Tenant at the rental and on the other
terms set forth in this Lease for the term set forth in Tenant's
notice, or, in the case of an assignment, to terminate this Lease.
Subject to the other provision in the Article 15, if Landlord does not
exercise such option, Tenant may assign the Lease or sublet such space
to such proposed assignee or subtenant on the following further
conditions:
(1) Landlord shall have the right to approve such proposed assignee or
subtenant, which approveal shall not be unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set forth in
the notice given to landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises until an executed
counterpart of such assignment or sublease has been delivered to
Landlord;
(4) No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained: and
(5) Fifty percent (50%) of any sums or other economic consideration
received by Tenant as a result of such assignment or subetting,
however denominated under the assignment or sublease, shich exceed,
in the agregate, (i) the total sums which Tenant is obligated to pay
Landlord under this Lease (prorated to reflect obligations alocable
to any portion of the Premises subleased), plus (ii) any real estate
brokerage commissions or fees payable in connection with such
assignment or subletting, shall be paid to Landlord as additional
rent under this Lease without affecting or reducing any other
obligations Tenant hereunder;
(6) Tenant shall not then be in default beyond the time herein
provided, if any, to cure such default; and
(7) Tenant shall be prohibited from negotiating with a person or
entity whith whom Landlord is then negoatiating to lease space in
the Building or Project, including any existing tenant in the
Building or Project with whom Landlord is then negotiating to
lease additional or expansion space in the Building or Project.
c. Notwithstanding the provisions of paragraphs a and b above, Tenant may
assign this Lease or sublet the Premises or any portion thereof, without
Landlord's consent and without extending any recapture or termination
option to Landlord, to any corporation which contraols, is contraolled by
or is under common control with Tenant, or to any corporation resulting
form a merger or consolidation with Tenant, or to any person or entity
which acquires all the assets of Tenant's business as a going concern,
provided that (i) the assignee or sublessee assumes, in full, the
obligations of Tenant under this Lease, (ii) Tenant remains fully liable
under this Lease, and (iii) the use of the Premises under Article 8
remains unchanged.
d. No subletting or assignment shall release Tenant of Tenant's obligation
under this Lease or alter the primary liability of Tenant to pay the
Rent and to perform all other obligation to be performed by Tenant
hereunder. The acceptance or Rent by Landlord from any other person
shall not be deemed to be a waiver by Landlord of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to
any subsequent assignment or subletting. In the event of default by an
assignee or subtenant of Tenant or any successor of Tenant in the
performance of any of the terms hereof, Landlord may proceed directly
against Tenant without the necessity of exhausting rememdies against
such assignee, subtenant or successor. Landlord may consent to
subsequent assignments of the Lease or subletting or amendments or
madifications to the Lease with assignees of Tenant, without notifying
Tenant, or any successor of Tenant, and without obtaining its or their
consent thereto and any such actions shall not relieve Tenant of
liability under this Lease.
e. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant
requests the consent of Landlord for any act that Tenant proposes to
do, then Tenant shall, upon demand, pay Landlord
Page 7
an administrative fee of One Hundred Fifty and 00/100 Dollars ($150.00)
plus any attorney's fees reasonably incurred by Landlord in connection
with such act or request.
f. Any transfer, by operation of law or otherwise, of Tenant's interest in
the Lease (in whole or in part) or of a fifty percent (50%) or greater
interest in Tenant (whether stock, partnership interest or otherwise)
shall be deemed an assignment of this lease within the meaning of this
Section 16. The issuance of shares of stock to other than the existing
shareholders is ddemed to be a transfer of that stock for the purposes of
this Section 16. If, during the Term of this Lease, there is a transfer of
less than a fifty percent (50%) interest in Tenant, then any other
transfer of an interest in Renant which, when added to the total
percentage interest previously transferred, totals a transfer of greater
than fifty percent (50%) interest in Tenant shall be deemed an assignment
of Tenant's interest in this Lease within the meaning of this Section 16.
17.HOLDING OVER
If after expiration of the Term, Tenant remains in possession of the
Premises with Landlord's permission (express or implied), Tenant shall
become a tenant from month to month only, upon all the provisions of this
Lease (except as to Term and Base Rent), but the Tenant shall pay for each
month of such hold-over period a fair rental value equal to one hundred
fifty percent (150%) of the Monthly Installments of Base Rent payable by
Tenant at the expiration of the Rem, which amount shall be payable on a
quantum merit basis and not a rent. Such monthly rent shall be payable in
advance on or before the first day of each month. If either party desires
to terminate such month to month tenancy, it shall give the other party
not less than thirty (30) days advance written notice of the date of
termination. TENANT HEREBY WAIVES ANY NOTICE OT QUIT OR VACATE THE
PREMISES.
18.SURRENDER OF PREMISES
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, or upon earlier termination of this Lease, in
broom-clean condition an in as good condition as when Tenant took
possession, except for (i) reasonable wear and tear, (ii) loss by fire
or other casualty, and (iii) loss by condemnation. Tenant shall remove
Tenant's Property on or before the Expiration Date and promptly repair
all damage to the Premises or Building caused by such removal.
b. If Tenant abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the
Premises shall be deemed to be abandoned, and, at Landlord's option,
title shall pass to Landlord under this Lease as by a bill of sale. If
Landlord elects to remove all or any part of such Tenant's Property,
the cost of removal, including repairing any damage done to the
Premises or Building caused by such removal, shall be paid by Tenant.
On the Expiration Date Tenant shall surrender all keys to the Premises.
19.DESTRUCTION OR DAMAGE
a. If the Premises or the portion of the Building necessary for Tenant's
occupancy is damaged by fire, earthquake, act of God, the elements of
other casualty, Landlord shall, subject to the provisions of this
Article, promptly repair the damage, if such repairs can, in Landlord's
option, be completed within ninety (90) days. If Landlord determines
that repairs can be completed within ninety (90) days, this Lease shall
remain in full force and effect, except that if such damage is not the
result of the negligence or willful misconduct of Tenant is Tenants
agents, employees, contractors, licensees or invitees, the Base Rent
shall be abated to the extent Tenant's use of the Premises is impaired,
commencing with the date of damage and continuing until completion of
the repairs required of Landlord under Section 19d.
b. If in Landlord's opinion, such repairs to the Premises or portion of
the Building necessary for Tenant's occupancy cannot be completed
within ninety (90) days, Landlord may elect, upon notice to Tenant
given within thirty (30) days after the date of such fire or other
casualty, to repair such damage, in which event this Lease shall
continue in full force and effect but the Base Rent shall be partially
abated as provided in Section 19a. If Landlord does not so elect to
make such repairs, this Lease shall terminate as of the date of such
fire or other casualty.
c. If any other portion of the Building or Project is totally destroyed or
damaged to the extent that in Landlord's opinion repair thereof cannot
be completed within ninety (90) days, Landlord may elect, upon notice
to Tenant given within thirty (30) days after the date of such fire or
other casualty, to repair such damage, in which event this Lease shall
continue in full force and effect but the Base Rent shall be partially
abated as provided in Section 19a. If Landlord does not so elect to
make such repairs, this Lease shall terminate as of the date of such
fire or other casualty.
d. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building and building
standard work in the Premises. Tenant shall be responsible at its sole
cost and expense for the repair, restoration and replacement of any
other Leasehold Improvements and Tenant's Property. Landlord shall not
be liable for any loss of business, inconvenience or annoyance arising
from any repair or restoration of any portion of the Premises, building
or Project as a result of any damage from fire or other casualty.
e. Landlord and Tenant hereby acknowledge that the provisions of this
Article 19 are interested to be the sole and exclusive provisions
applicable in the event of any fire, casualty or unavoidable accident
to the Premises or the Building, and that the same are provided in lieu
of the operation of Md. Real Prop. Code Ann. 8-112 (as the same may be
amended and any successor provision thereto).
20.EMINENT DOMAIN
a. If the whole of the building or Premises is lawfully taken by
condemnation or in any other manner for any public or ???-public
purpose this Lease shall terminate as of the date of such taking, and
Rent shall be prorated to such date. If less than the whole of the
building or Premises is so taken, this Lease shall be unaffected by
such taking provided that (i) tenant shall have the right to terminate
this Lease by notice to Landlord given within ninety (90) days after
the date of such taking if twenty percent (20%) or more of the Premises
is taken and the remaining area of the Premises is not reasonably
sufficient for Tenant to continue operation of its business, and (ii)
Landlord shall have the right to terminate this Lease by notice to
Tenant given within ninety (90) days after the date of such taking. If
either Landlord or Tenant so elects to terminate this Lease, the Lease
shall terminate on the thirtieth (30th) day after either such notice.
The Rent shall be prorated to the date of termination. If this Lease
continues in force upon such partial taking, the Base Rent and Tenant's
Proportionate Share shall be equitably adjusted according to the
remaining Rentable Area of the Premises and Project.
b. In the event of any taking, partial or whole, all of the proceeds of
any award, judgment or settlement payable by the condemning authority
shall be the exclusive property of Landlord, and Tenant hereby assignee
to Landlord all of its right, title and interest in any award, judgment
or settlement from the condemning authority. Tenant, however, shall
have the right, to the extent that Landlord's award is not reduced or
prejudiced, to claim from the condemning authority (but net from
Landlord) such compensation as may be reservable by Tenant in its own
right for relocation expenses and damage personal property.
c. In the event of a partial taking of the Premises which does not result
in a termination of this Lease, Landlord shall restore the remaining
portion of the Premises as nearly as practicable to its condition prior
to the condemnation or taking, but only is the extent of building
standard work. Tenant shall be responsible at its sale cost and
expenses for the repair, restoration and replacement of any other
Leasehold improvements and Tenant's Property.
Page 8
21.INDEMNIFICATION
a. To the extent permitted by applicable law, Tenant shall indemnify and
hold Landlord harmless against and from liability and claims of any
kind for loss or damage to property of Tenant or any other person, or
for any injury to or death of any person, arising out of: (1) Tenant's
use and occupancy of the Premises, or any work, activity or other
things allowed or suffered by Tenant to be done in, on or about the
Premises; (2) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (3) any negligent or tortious act or
omission of Tenant, its agents, employees, invitees or contractors.
Tenant shall at Tenant's expense, and by counsel satisfactory to
Landlord, defend Landlord in any action or proceeding arising from any
such claim and shall indemnify Landlord against all costs, attorneys'
fees, expert witness fees and any other expenses incurred in such
action or proceeding. As a material part of the consideration for
Landlord's execution of this Lease, Tenant hereby assumes all risk of
damage or injury to any person or property in the Premises from any
cause other than Landlord's gross negligence or willful misconduct to
the extent permitted by law. The provisions of this Section 21a shall
survive the expiration or sooner termination of this Lease.
b. Landlord shall not be liable for injury or damage which may be
sustained by the person or property of Tenant, its employees, invitees
or customers, or any other person in the Premises, caused by or
resulting from fire, steam, electricity, gas, water or rain which may
leak or flow from or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures, and
the like whether such damage or injury results from conditions arising
upon the Premises or upon other portions of the Building or Project or
from other sources. Landlord shall not be liable for any damages
arising from any act or omission of any other tenant of the Building or
Project.
22.TENANT'S INSURANCE
a. All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies acceptable to Landlord and
Landlord's lender and qualified to do business in the State. Each
policy shall name Landlord, and at Landlord's request any mortgages of
Landlord, as an additional insured, as their respective interests may
appear. Each policy shall contain (i) a cross-liability endorsement,
(ii) a provision that such policy and the coverage evidenced thereby
shall be primary and non-contributing with respect to any policies
carried by Landlord and that any coverage carried by Landlord shall be
excess insurance, and (iii) a waiver by the insurer of any right of
subrogation against Landlord, its agents, employees and
representatives, which arises or might arise by reason of any payment
under such policy or by reason of any act or omission of Landlord, its
agents, employees or representatives. A copy of each paid up policy
(authenticated by the insurer) or certificate of the insurer evidencing
the existence and amount of each insurance policy required hereunder
shall be delivered to Landlord before the date Tenant is first given
the right of possession of the Premises, and thereafter within thirty
(30) days after any demand by Landlord therefor. Landlord may, at any
time and from time to time, inspect and/or copy any insurance policies
required to be maintained by Tenant hereunder. No such policy shall be
cancelable, except after twenty (20) days written notice to Landlord
and Landlord's lender. Tenant shall furnish Landlord with renewals or
"binders" of any such policy at least ten (10) days prior to the
expiration thereof. Tenant agrees that if Tenant does not take out and
maintain such insurance, Landlord may (but shall not be required to)
procure said insurance on Tenant's behalf and charge the Tenant the
premiums together with twenty-five percent (25%) handling charge,
payable upon demand. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by the Tenant,
provided such blanket policies expressly afford coverage to the
Premises, Landlord, Landlord's mortgages and Tenant as required by this
Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect policies of casualty insurance
covering (i) all Leasehold improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant to the
provisions of Article 12 hereof), and (ii) trade fixtures, merchandise
and other personal property from time to time, providing protection
against any peril included within the classification "Fire and Extended
Coverage" together with insurance against sprinkler damage, vandalism
and malicious mischief. The proceeds of such insurance shall be used
for the repair or replacement of the property so insured. Upon
termination of this Lease following a casualty as set forth herein, the
proceeds under (i) shall be paid to Landlord, and the proceeds under
(ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect workers' compensation insurance
as required by law and comprehensive public liability and property
damage insurance with respect to the construction of improvements on
the Premises, the use, operation or condition of the Premises and the
operations of Tenant in, on or about the Premises, providing personal
injury and broad form coverage for not less than Two Million Dollars
($2,000,000.00) combined single limit for bodily injury, death and
property damage liability..
23.WAIVER OF SUBROGATION
Landlord and Tenant each hereby waive all rights of recovery against the
other and against the officers, employees, agents and representatives of
the other, on account of loss by or damage to any person or the waiving
party's property or the property of others under its control, to the
extent that such loss or damage is insured against under any fire and
extended coverage insurance policy which either may have or is required to
have in force at the time of the loss or damage. Landlord and Tenant shall
each obtain from their respective insurers under all policies of fire,
theft, public liability, worker's compensation, and other insurance
maintained during the Term of this Lease covering the Building, or any
portion of it, or operations in it, a waiver of all rights of subrogation
that the insurer of one party might have against the other party. Landlord
and Tenant shall each indemnify the other against any loss or expense,
including reasonable attorney's fees, resulting from the failure to obtain
this waiver.
24.SUBORDINATION AND ATTORNMENT
This Lease is and shall be subject and subordinate to the lien of any
mortgage (which term "mortgage" shall include both construction and
permanent financing and shall include deeds of trust, ground leases and
similar security agreements) which may now or hereafter encumber or
otherwise affect the land and Building of which the Premises form a part,
or Landlord's leasehold interest therein), and to all and any renewals,
extensions, modifications, recastings or refinancing thereof; provided,
however that Landlord's mortgagee may elect, at its sole election, that
any mortgage held by such mortgagee shall be subordinate, in whole or in
part, to this Lease.
Within ten (10) days after written request of Landlord, or any mortgagee
or deed of trust beneficiary of Landlord, or ground lessor of Landlord,
Tenant shall, in writing, subordinate its rights under this Lease to the
lien of any mortgage or deed of trust, or to the interest of any lease in
which Landlord is leasee, and to all advances made or hereafter to be made
thereunder. However, before signing any subordination agreement , Tenant
shall have the right to obtain from any lender or lessor or Landlord
requesting such subordination, on a non-disturbance agreement in writing
providing that, as long as Tenant is not in default hereunder, this Lease
shall remain in effect for the full Term. The holder of any security
interest may, upon written notice to Tenant, elect to have this Lease
prior to its security interest regardless of the time of the granting or
recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of a lease in which Landlord is lessee, Tenant shall attorn to
the purchaser, transferee or lessor as the case may be, and recognize that
party as Landlord under this Lease, provided such party acquires and
accepts the Premises subject to this Lease.
Page 9
Within ten (10) days after written request from Landlord, Tenant shall
execute and deliver to Landlord or Landlord's designee a written statement
certifying (a) that this Lease is unmodified and, if true, in full force
and effect, or is in full force and effect as modified, and stating the
modifications; (b) the amount of Base Rent and the date to which Base Rent
and additional rent have been paid in advance; (c) the amount of any
security deposited with Landlord; (d) that Landlord is not in default
hereunder or, if Landlord is claimed to be in default, stating the nature
of any claimed default, and (e) such other matters relating to this Lease
as Landlord shall request. Any such statement may be relied upon by a
purchaser, assignee or lender. Tenant's failure to execute and deliver
such statement within the time required shall at Landlord's election be a
default under this Lease and shall also be conclusive upon Tenant that:
(1) this Lease is in full force and effect and has not been modified
except as represented by Landlord; (2) there are no uncured defaults in
Landlord's performance and that Tenant has no right of offset,
counter-claim or deduction against Rent; and (3) not more than one month's
Rent has been paid in advance.
26.TRANSFER OF LANDLORD'S INTEREST
In the event of any sale or transfer by Landlord of the Premises, Building
or Project, and assignment of this Lease by Landlord, Landlord shall be
and is hereby entirely freed and relieved of any and all liability and
obligations contained in or derived from this Lease arising out of any
act, occurrence or omission relating to the Premises, Building, Project or
Lease occurring after the consummation of such sale or transfer, providing
the purchaser shall expressly assume all of the covenants and obligations
of Landlord under this lease. If any security deposit or prepaid Rent has
been paid by Tenant, Landlord may transfer the security deposit or prepaid
Rent to Landlord's successor and upon such transfer, Landlord shall be
relieved of any and all further liability with respect thereto.
27.DEFAULT
27.1 Events of Defaults The occurrence of any one or more of the following
matters constitutes a Default by Tenant under this Lease:
a. Failure by Tenant to pay any Rent or any other moneys required to
be paid Tenant under this Lease within three (3) days after such
payment is due and payable;
b. Failure by Tenant to observe or perform any of the covenants with
respect to assignment and subletting set forth in Article 16;
c. Faire by Tenant to comply with Tenant's obligations set forth in
Article 37;
d. Failure by Tenant to cure, immediately after receipt of notice
Landlord, any hazardous condition which Tenant has created in
violation of law or this Lease;
e. Failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease, if such failure
continues for thirty (30) days after notice thereof from Landlord
to Tenant;
f. The levy upon, under writ of execution or the attachment by legal
process of, the leasehold interest of Tenant, or the filing or
creation of a lien with respect to such leasehold interest, which
lien shall not be released or discharged within ten (10) days from
the date of such filing.
g. Tenant vacates or abandons the Premises or fails to take
possession of the Premises when available for occupancy (the
transfer of a substantial part of the operations, business and
personnel of Tenant to some other location being deemed, without
limiting the meaning of the term "vacates or abandons," to be a
vacation or abandonment within the meaning of this clause),
whether or not Tenant thereafter continues to pay Rent due under
this Lease;
h. Tenant becomes insolvent or bankrupt or admits in writing its
inability to pay its debts as they mature, or makes an assignment
for the benefit of creditors, or applies for or consents to the
appointment of a trustee or receiver for Tenant or for the
substantial part of its property;
i. A trustee or receiver is appointed for Tenant or for the major
part of its property and is not discharged within sixty (60) days
after such appointment; or
j. Any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding for relief under any
bankruptcy law, or similar law for the relief of debtors, is
instituted (j) by Tenant or (ii) against Tenant and is allowed
against it or is consented to buy it or is not dismissed within
sixty (60) days after such institution.
27.2 Rights and Remedies of Landlord If a Default occurs, Landlord shall have
the rights and remedies hereinafter set forth, which shall be distinct,
separate and cumulative and shall not operate to exclude or deprive
Landlord of any other right or remedy allowed it by law:
a. Landlord may terminate this Lease by giving to Tenant notice of
Landlord's election to do so, in which event the Term of this
Lease shall end, and all right, title and Interest of Tenant
hereunder shall expire, on the date stated in such notice;
b. Landlord may terminate the right of Tenant to possession of the
Premises without terminating this Lease by giving notice to Tenant
that Tenant's right to possession shall end on the date in such
notice, whereupon the right of Tenant to possession of the
Premises or any part thereof shall cease on the date stated in
such notice; and
c. Landlord may enforce the provisions of the Lease and may enforce
and protest the rights of Landlord hereunder by a suit or suits in
equity or at law for the specific performance of any sevenant or
agreement contained herein, or for the enforcement of any other
appropriate legal or equitable remedy, including recovery of all
moneys due or to become due from Tenant under any of the
provisions of the Lease.
d. Landlord's rights and remedies hereunder are cumulative. In the
event of a breach by Tenant, Landlord shall have all rights and
remedies provided by law.
27.3 Rights to Re-Enter. If Landlord exercises either of the remedies
provided in Sections 27.2a or b. Tenant shall surrender possession
and vacate the Premises and immediately deliver possession thereof to
Landlord, and Landlord may re-enter and take complete and peaceful
possession of the Premises, with due process of law, full and
complete license to do so being hereby granted to Landlord, and
Landlord may remove all occupants and property therefrom, using such
force as may be necessary, without being deemed guilty in any manner
of trespass, eviction or forcible entry and detainer and without
relinguishing Landlord's right to Rent or any other right given to
Landlord hereunder or by operation of law.
27.4 Current Damages. If Landlord terminates the right of Tenant to
possession of the Premises without terminating the Lease, Landlord
shall have the right to immediate recovery of all amounts then due
hereunder. Such termination of possession shall not release Tenant,
in whole or in part, from Tenant's obligation to pay Rent hereunder
for the full Term, and Landlord shall have the right, from time to
time, to recover from Tenant, and Tenant shall remain liable for, all
Base Rent and any other sums accruing
Page 10
as they become due under the lease during the period from the date
of such notice of termination of possession to the stated end of
the term. In any case, Landlord may relet the Premises or any part
thereof for the account of Tenant for such rent, for such time
(which may be for a term extending beyond the Term of this Lease)
and upon such terms as Landlord shall determine and may collect the
rents from such reletting. Landlord shall not be required to
accept any tenant offered by Tenant or to observe any instructions
given by Tenant relative to such reletting. Also, in any such
case, Landlord may make repairs, alterations and additions in or to
the Premises and redecorate the same to the extent deemed by
Landlord necessary or desirable and in connection therewith change
the locks to the Premises, and Tenant upon demand shall pay the
cost of all of the foregoing together with Landlord's expenses of
reletting. The rents from any such reletting shall be applied
first to the payment of the expenses of re-entry, redecoration,
repair and alterations and the expenses of reletting and second to
the payment of Rent herein provided to be paid by Tenant. Any
excess or residue shall operate only as an offsetting credit
against the amount of Rent due and owing as the same thereafter
becomes due and payable hereunder, and the use of such offsetting
credit to reduce the amount of Rent due Landlord, if any, shall not
be deemed to give Tenant any right, title or interest in or to such
excess or residue and any such excess or residue shall belong to
Landlord solely, and in no event shall Tenant be entitled to a
credit on its indebtedness to Landlord in excess of the aggregate
sum (including Base Rent and any other changes) which would have
been paid by Tenant for the period for which the credit to Tenant
is being determined, and no Default occurred. No such re-entry or
repossession, repairs, alterations and additions, or reletting
shall be construed as an eviction or ouster of Tenant or as an
election on Landlord's part to terminate this Lease, unless a
written notice of such intention is given to Tenant, or shall
operate to release Tenant in whole or in part from any of Tenant's
obligations hereunder, and Landlord, at any time and from time to
time, may sue and recover judgment for any deficiencies remaining
after the application of the proceeds of any such reletting.
27.5 Final Damages. If this Lease is terminated by Landlord pursuant to
Section 27.2a, Landlord shall be entitled to recover form Tenant all
Rent accrued and unpaid for the period up to and including such
termination date, as well as all other additional sums payable by
Tenant, or for which Tenant is liable or for which Tenant has agreed
to indemnify Landlord under any of the provisions of this Lease, which
may be then owing and unpaid, and all costs and expenses, including
court costs and attorneys' fees incurred by Landlord in the
enforcement of its rights and remedies hereunder, and, in addition,
Landlord shall be entitled to recover as damages for loss of the
bargain and not as a penalty (a) the unamortized portion of Landlord's
contribution to the cost of tenant improvements and alterations, if
any, installed by either Landlord or Tenant pursuant to this Lease or
any Workletter, (b) the aggregate sum which at the time of such
termination represents the excess, if any of the present value of the
aggregate rents which would have been payable after the termination
date had this Lease not been terminated, including, without
limitation, Base Rent at the annual rate or respective annual rates
for the remainder of the term provided for in Section 2e of this Lease
or elsewhere herein and the amount projected by Landlord to represent
any other charges for the remainder of the Term pursuant to Article 5
of this Lease, over the then present value of the then aggregate fair
rental value of the Premises for the balance of the Term, such present
worth to be computed in each case, on the basis of a five percent (5%)
per annum discount from the respective dates upon which such rentals
would have been payable hereunder had this Lease not been terminated,
and (c) any damages in addition thereto, including reasonable
attorneys' fees and court costs, which Landlord sustains as a result
of the breach of any of the covenants of this Lease other than for the
payment of Rent.
27.6 Anticipatory Breach. Nothing contained herein shall prevent the
enforcement of any claim Landlord may have against Tenant for
anticipatory breach of the unexpired Term of this Lease. In the event
of a breach or anticipatory breach by Tenant of any of the covenants
or provisions hereof, Landlord shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not provided for
herein.
27.7 Removal of Personal Property. All property of Tenant removed from the
Premises by Landlord pursuant to any provision of this Lease or
applicable law may be handled, removed or stored by Landlord at the
cost and expense of Tenant, and Landlord shall not be responsible in
any event for the value, preservation or safekeeping thereof. Tenant
shall pay Landlord for all expenses incurred by Landlord with respect
to such removal and storage so long as the same is in Landlord's
possession or under Landlord's control. All such property not removed
from the Premises or retaken from storage by Tenant within thirty (30)
days after the end of the term, however terminated, at Landlord's
option , shall be conclusively deemed to have been conveyed by Tenant
to Landlord as by bill of sale without further payment or credit by
Landlord to Tenant.
27.8 Attorneys' Fees. Tenant shall pay all of Landlord's costs, charges
and expenses, including court costs and attorneys' fees, incurred in
enforcing Tenant's obligations under this Lease, incurred by Landlord
in any action brought by Tenant in which Landlord is the prevailing
party, or incurred by Landlord in any litigation, negotiation or
transaction in which Tenant causes Landlord, without Landlord's fault,
to become involved or concerned.
27.9 Assumption or Rejection in Bankruptcy. If Tenant is adjudged
bankrupt, or a trustee in bankruptcy is appointed for Tenant, Landlord
and Tenant, to the extent permitted by law, agree to request that the
trustee in bankruptcy determine within sixty (60) days thereafter
whether to assume or to reject this Lease.
27.10 Default Under Other Leases. If the term of any lease, other than this
Lease, for any space in the Project under which Tenant is now or
hereafter the tenant, shall be terminated or terminable after the
making of this Lease because of any default by Tenant under such other
lease, such fact shall empower Landlord, at Landlord's sole option, to
terminate this Lease by notice to Tenant or to exercise any of the
rights or remedies set forth in Section 27.2
27.11 WAIVER OF TENANT'S RIGHT OF REDEMPTION. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TENANT HEREBY WAIVES ANY AND ALL RIGHTS OF REDEMPTION
AND RIGHTS TO CURE ANY DEFAULT HEREUNDER (HOWSOEVER DENOMINATED) NOW
OR HEREAFTER GRANTED TO TENANT PURSUANT TO APPLICABLE LAW. NO
ACCEPTANCE BY LANDLORD OF ANY MONIES OWED BY TENANT TO LANDLORD SHALL
CONSTITUTE A WAIVER OF THE PROVISIONS OF THIS ARTICLE 27 NOR SHALL ANY
REFUSAL BY LANDLORD TO ACCEPT ANY TENDER BY TENANT OF ANY SUMS OWED BY
TENANT TO LANDLORD, IN CONNECTION WITH ANY PURPORTED EXERCISE OF ANY
RIGHT OF REDEMPTION OR RIGHT TO CURE TO WHICH TENANT WOULD OTHERWISE
BE ENTITLED, CONSTITUTE A TERMINATION OF THIS LEASE OR A RELEASE OF
TENANT FROM ANY LIABILITY HEREUNDER.
27.12 CERTAIN WAIVERS. EXCEPT AS SPECIFICALLY PROVIDED IN THIS LEASE AND
EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY PURSUANT TO APPLICABLE
LAW, TENANT HEREBY EXPRESSLY WAIVES THE SERVICE OF ANY NOTICE TO CURE
OR VACATE OR TO QUIT THE PREMISES AND WAIVES THE SERVICE OF ANY OTHER
NOTICE OR DEMAND PRESCRIBED BY ANY CURRENT OR FUTURE STATUTE OR OTHER
APPLICABLE LAW.
27.13 Landlord's Default. If Landlord fails to perform any covenant,
condition or agreement contained in this Lease, or if any
representation or warranty is materially false, within thirty (30)
days after receipt of written notice from Tenant specifying such
default, or if such default cannot reasonably be cured within thirty
(30) days, if Landlord fails to commence to cure within that thirty
(30) day period, then Landlord shall be liable to Tenant for any
damages sustained by Tenant by reason of any actual physical damage to
Tenant's personal property at the Premises or injury to persons caused
by Landlord's breach; provided, however, it is expressly understood
and agree that if Tenant obtains a money judgement against Landlord
resulting from any default or other claim arising under this Lease,
that judgement shall be satisfied only out of the rents, issues,
profits and other income actually received on account of Landlord's
right, title and interest in the Premises, Building or Project, and no
other real, personal or mixed property of Landlord (or of any of the
partners which comprise Landlord, if any) wherever situated, shall be
subject to levy to satisfy such judgment. If, after notice to
Landlord of default, Landlord (or any first mortgagee or first deed of
trust beneficiary of Landlord) fails to cure the default as provided
herein, then Tenant shall have the right to cure that default at
Landlord's expense. Tenant shall not have the right to terminate this
Lease or to withhold, reduce or offset any amount against
11
any payments of Rent or any other charges due and payable under this
Lease, except as otherwise specifically provided herein.
28. BROKERAGE FEES
Tenant warrants and represents that it has not dealt with any real
estate broker or agent in connection with this Lease or its
negotiation except those noted in Section 2p. Tenant shall indemnify
and hold Landlord harmless from any cost, expense or liability
(including costs of suit and reasonable attorneys' fees) for any
compensation, commission or fees claimed by any other real estate
broker or agent in connection with this Lease or its negotiating by
reason of any alleged act of Tenant.
29. NOTICES
All notices, approvals and demands permitted or required to be given
under this Lease shall be in writing and deemed duly served or given
if personally delivered or sent by certified or registered U.S. mail,
postage prepaid, and addressed as follows: (a) if to Landlord, to
Landlord's Mailing Address and to the Building manager, and (b) if to
Tenant, to Tenant's Mailing Address; provided, however, notices to
Tenant shall be deemed duly served or given if delivered or mailed to
Tenant at the Premises. Landlord and Tenant may from time to time by
notice to the other designate another place for receipt of future
notices.
30. GOVERNMENT ENERGY OR UTILTY CONTROLS
In the event of imposition of federal, state or local government
controls, rules, regulations, or restrictions on the use or
consumption of energy of other utilities during the Term, both
Landlord and Tenant shall be bound thereby. In the event of a
difference in interpretation by Landlord and Tenant of any such
controls, the interpretation of Landlord shall prevail, and Landlord
shall have the right to enforce compliance therewith, including the
right of entry into the Premises to effect compliance.
32. QUIET ENJOYMENT
Tenant, upon paying the Rent and performing all of its obligations
under this Lease, shall peaceably and quietly enjoy the Premises,
subject to the terms of this Lease and to any mortgage, lease, or
other agreement to which this Lease may be subordinate.
33. OBSERVANCE OF LAW
Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law,
statute, ordinance or governmental rule or regulation now in force or
which may hereafter be enacted or promulgated. Tenant shall, at its
sole cost and expense, promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or requirements now in
force or which may herafter be in force, and with the requirements of
any board of fire insurance underwriters or other similar bodies now
or hereafter constituted, relating to, or affecting the condition, use
of occupancy of the Premises, excluding structural changes not related
to or affected by Tenant's improvements or acts. The judgment of any
court or competent jurisdiction or the admission of Tenant in any
action against Tenant, whether Landlord is a party thereto or not,
that Tenant has violated any law, ordinance or governmental rule,
regulation or requirement shall be conclusive of that fact as between
Landlord and Tenant.
34. FORCE MAJEURE
Any prevention, delay or stoppage of work to be performed by Landlord
or Tenant which is due to strikes, labor disputes, inability to obtain
labor, materials, equipment or reasonable substitutes thererfor, acts
of God, governmental restrictions or regulations or controls, judicial
orders, enemy or hostile government actions, civil commotion, fire or
other casualty, or others causes beyond the reasonable control of the
party obligated to perform hereunder, shall excuse performance of the
work by that party for a period equal to the duration of that
prevention, delay of stoppage. Nothing in this Article 34 shall
excuse or delay Tenant's obligation to pay Rent or other charges under
this Lease.
35. CURING TENANT'S DEFAULTS
If tenant defaults in the performance of any of its obligations under
this Lease, Landlord may (but shall not be obligated to) without
waiving such default, perform the same for the account at the expense
of Tenant. Tenant shall pay Landlord all costs of such performance
promptly upon receipt of a bill therefor.
36. SIGN CONTROL
Tenant shall not affix, paint, erect or inscribe any sign, projection,
awning, signal or advertisement of any kind to any part of the
Premises, Building or Project, including without limitation, the
inside or outside of windows or doors, without the written consent of
Landlord. Landlord shall have the right to remove any signs or other
matter, installed without Landlord's permission , without being liable
to Tenant by reason of such removal, and to charge the cost of removal
to Tenant as additional rent hereunder payable within ten (10) days of
written demand by Landlord. Notwithstanding the aforementioned,
Tenant shall be permitted to install building signage of not more than
100 square feet. This right is subject to Landlord's approval of
size, color, location and materials used as well as subject to all
applicable city and country codes and regulations.
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37. HAZARDOUS SUBSTANCES
37.1 Defined Terms
a. "Claim" shall mean and include any demand, cause of action,
proceeding or suit for any one or more of the following: (i)
actual or punitive damages, losses, injuries to person or
property, damages to natural resources, fines penalties,
interest, contribution or settlement, (ii) the costs of site
investigations, feasibility studies, information requests, health
or risk assessments, or Response (as hereinafter defined)
actions, and (iii) enforcing insurance, contribution or
indemnification agreements.
b. "Environmental Laws" shall mean and include all federal, state
and local statutes, ordinances, regulations and rules relation to
environmental quality, health, safety, contamination and
clean-up, including, without limitation, the Clean Air Act, 42
U.S.C. Section 7401 et seq.; the Clean Water Act , 33 U.S.C.
Section 1251 et seq., and the Water Quality Act of 1987; the
Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7
U.S.C. Section 136 et seq.; the Marine Protection, Research, and
Sanctuaries Act, 33 U.S.C. Section 1401 et seq.; the National
Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; the
Noise Control Act, 42 U.S.C. Section 4901 et seq; the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et
seq.; the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. Section 6901 et seq.; as amended by the Hazardous and
Solid Waste Amendments of 1984; the Safe Drinking Water Act, 42
U.S.C. Section 300f et seq; the Comprehensive Environmental
Response, Compensation and Liability Act ("CERLA"), 42 U.S.C.
Section 9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act, the Emergency Planning and Community
Right-to-Know Act, and Radon Gas and Indoor Air Quality Research
Act; the Toxic Substances Control Act ('TSCA"), 15 U.S.C. Section
2601 et seq.; the Atomic Energy Act, 42 U.S.C. Section 2011 et
seq., and the Nuclear Waste Policy Act of 1982, 42 U.S.C. Section
10101 et. seq.; and state superlien and environmental clean-up
statutes, with implementing regulations and guidelines, as
amended from tome to tome. Environmental Laws shall also include
all state, regional, country, municipal and other local laws,
regulations, and ordinances insofar as they are equivalent or
similar to the federal laws recited above or purport to regulate
Hazardous Materials (as hereinafter defined).
c. "Hazardous Materials" shall mean and include the following,
including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product or constituent regulated under
CERCLA; oil and petroleum products and natural gas, natural gas
liquids, liquefied natural gas and synthetic gas usable for fuel;
pesticides regulated under the FIFRA; asbestos and
asbestos-containing materials, PCBs, and other substances
regulated under the TSCA; source material, special nuclear
material, by-product material and any other radioactive materials
or radioactive wastes, however produced, regulated under the
Atomic Energy Act or the Nuclear Wasted Policy Act; chemicals
subject to the OSHA Hazard Communication Standard, 29 C.F.R.
Section 1910. 1200 et seq., and industrial process and pollution
control wastes, whether or not hazardous within the meaning of
RCRA; any substance whose nature and/or quantity of existence,
use, manufacture, disposal or effect render it subject to
federal, state or local regulation, investigation, remediation,
or removal as potentially injurious to public health or welfare.
d. "Use" means to manage, generate, manufacture, process, treat,
store, use, re-use, refine, recycle, reclaim, blend or burn for
energy recovery, incinerate, accumulate speculatively, transport,
transfer, dispose of , or abandon Hazardous Materials.
e. "Release" or "Released" shall mean any actual or threatened
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing
of Hazardous Materials into the environment, as "environment" is
defined in CERCLA.
f. "Response"or "Respond" shall mean action taken in compliance with
Environmental Laws to correct, remove, remediate, cleanup,
prevent, mitigate, monitor, evaluate, investigate, assess or
abate the Release of a Hazardous Material.
37.2 Tenant's Obligations with Respect to Environmental Matters. During
the term of this Lease, (a) Tenant shall comply at its own cost with
all Environmental Laws; (b) Tenant shall not Use, or authorize the Use
of, any Hazardous Materials on the Premises, including installation of
any underground storage tanks, without prior written disclosure to and
approval by the Landlord, except for small quantities ordinarily used
by office tenants in ordinary office equipment, such as copying
machines, typewriters and personal computers; but only to the extent
permitted by law; (c) Tenant shall not take any action that would
subject the Premises to permit requirements under RCRA for storage,
treatment or disposal of Hazardous Materials; (d) Tenant shall not
dispose of Hazardous Materials in dumpsters provided by Landlord for
tenant use; (e) Tenant shall not discharge Hazardous Materials into
Project drains or sewers; (f) Tenant shall not cause or allow the
Release of any Hazardous Materials on, to, or from the Project; and
(g) Tenant shall arrange at its own cost close-up for the lawful
transportation and off-site disposal of all Hazardous Materials that
it generates.
37.3 Copies of Notices. During the term of this Lease, Tenant shall
provide Landlord promptly with copies of all summons, citations,
directives, information inquires or requests, notices of potential
responsibility, notices of violation or deficiency, orders or decrees,
Claims, complaints, investigations, judgments, letters, notices of
environmental liens or Response actions in progress and other
communications, written or oral, actual or threatened, from the United
Statues Environmental Protection Agency, Occupational Safety and
Health Administration, or other federal, state or local agency or
authority, or any other entity or individual, concerning (a) any
Release of a Hazardous Material on, to or form the Premises; (b) the
imposition of any lien on the Premises; or (c) any alleged violation
of or responsibility under Environmental Laws. Landlord and
Landlord's beneficiaries, agents and employees shall have the right to
enter the Premises and conduct appropriate inspections or tests in
order to determine Tenant's compliance with Environmental Laws.
37.4 Tests and Reports. Upon written request by Landlord, Tenant shall
provide Landlord without the results of appropriate reports and tests,
with transportation and disposal contracts for Hazardous Materials,
with any permits issued under Environmental Laws, and with any other
applicable documents to demonstrate that Tenant complies with all
Environmental Laws relating to the Premises.
37.5 Tenant's Obligation to Respond. If Tenant's Use of Hazardous
Materials at the Premises (a) gives rise to liability or to a Claim
under any Environmental Law, (b) causes a significant public health
effect, or (c) creates a nuisance, Tenant shall promptly take all
applicable action in Response.
37.6 Indemnification. Tenant shall indemnify, defend, and hold harmless
Landlord, its beneficiaries, its lenders, any managing agents and
leasing agents of the Premises, and their respective agents,
representatives partners, officers, directors and employees from and
against any and all Claims arising from or attributable to any breach
by Tenant of any of its warranties, representations or covenants in
the Article. Tenant's obligations hereunder shall survive the
termination or expiration of this Lease.
37.7 Owner's Representation and Warranty. Real Estate Income Partners
Limited Partnership, represents and warrants that Real Estate Income
Partners Limited Partnership, has not used or disposed, nor has Real
Estate Income Partners Limited Partnership, authorized its agents to
use or dispose of hazardous materials on the Premises in violation of
law.
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38. PARKING
a. Parking Rules and Regulations. Tenant shall observe and abide by
all parking rules and regulations created or imposed from time to
time by Landlord. If Tenant commits, permits or allows any
activity prohibited by the rules and regulations, Landlord shall
have the right, without notice and in addition to any other
available rights and remedies, to remove, tow or physically
incapacitate the vehicle involved at Tenant's cost and expense,
payable immediately upon demand.
b. Changes by Landlord. Landlord reserves the right as it deems
reasonably necessary to change or alter the parking, its layout
or access thereto, and to restrict, expand or reduce the size of
the parking spaces. Tenant acknowledges and agrees, however,
that the parking spaces at the Project may change, either
temporarily or permanently, as a result of governmental acts, or
acquirements (including a taking by eminent domain or a sale in
lieu thereof) or as a result of facts or circumstances not within
Landlord's control.
c. Waiver and Release. The right to park granted hereunder is
solely for the convenience and accommodation of Tenant, and does
not constitute a bailment or create the relationship of bailor
and bailee. Tenant waives and releases Landlord from any
responsibility or liability for loss or damage to any person or
property respecting use of the parking by Tenant, its employees
or invitees.
d. No charge or parking during the term of this Lease. Landlord
agrees that there shall be no charge to Tenant for Tenant's
parking spaces during the original Term of this Lease.
39. MISCELLANEOUS
a. Accord and Satisfaction: Allocation of Payments. No payment by
Tenant or receipt by Landlord of a lesser amount than the Rent
provided for in this Lease shall be deemed to be other than on
account of the earliest Rent due, nor shall any endorsement or
statement on any check or letter accompanying any check or
payment as Rent be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of the Rent or pursue any
other remedy provided for in this Lease. In connection with the
foregoing, Landlord shall have the absolute right in its sole
discretion to apply any payment received from Tenant to any
account or other payment of Tenant then not current and due or
delinquent.
b. Addends. If any provision contained in a Rider to this Lease is
inconsistent with any other provision herein, the provision
contained in the Rider shall control, unless otherwise provided
in the Rider.
c. Attorney's Fees. If any action or proceeding is brought by
either party against the other pertaining to or arising out of
this Lease, the finally prevailing party shall be entitled to
recover all costs and expenses, including reasonable attorneys'
fees, incurred on account of such action or proceeding.
d. Captions, Articles and Section Numbers. The captions appearing
within the body of this Lease have been inserted as a matter of
convenience and for reference only and in no way define, limit or
enlarge the scope or meaning of this Lease. All references to
Article and Section numbers refer to Articles and Sections in
this Lease.
e. Changes Requested by Lender. Neither Landlord or Tenant shall
unreasonably withhold its consent to changes or amendments to
this Lease requested by the lender on Landlord's interest, so
long as these changes do not alter the basic business terms of
this Lease or otherwise materially diminish any rights or
materially increase any obligations of the party from whom
consent to such change or amendment is requested.
f. Choice of Law. This Lease shall be construed and enforced in
accordance with the laws of Maryland.
g. Consent. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall have no claim, and hereby waives the right
to any claim against Landlord for money damages by reason of any
refusal, withholding or delaying by Landlord of any consent,
approval or statement of satisfaction, and in such event,
Tenant's only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any
right to such consent, etc. Additionally, unless otherwise
specifically provided herein, Landlord may grant or refuse its
consent to any item in its sole discretion.
h. Authority. If Tenant is a corporation or partnership, each
individual signing this Lease on behalf of Tenant represents and
warrants that he is duly authorized to execute and deliver this
Lease on behalf of the corporation, and that this Lease is
binding on Tenant in accordance with its terms. Tenant shall, at
Landlord's request, deliver a certified copy of a resolution of
its board of directors authorizing such execution.
i. Counterparts. This Lease may be executed in multiple
counterparts, all of which shall constitute one and the same
Lease.
j. Execution of Lease; No Option: The submission of this Lease to
Tenant shall be for examination purposes only, and does not and
shall not constitute a reservation of or option for Tenant to
lease, or otherwise create any interest of Tenant in the Premises
or any other premises within the Building or Project. Execution
of this Lease by Tenant and its return to Landlord shall not be
binding on Landlord notwithstanding any time interval, until
Landlord has in fact signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's Representations.
In order to induce Landlord to enter into this Lease, Tenant
agrees that it shall promptly furnish Landlord, from time to
time, upon Landlord's written request, with financial statements
reflecting Tenant's current financial condition. Tenant
represents and warrants that all financial statements, records
and information furnished by Tenant to landlord in connection
with this Lease are true, correct and complete in all respects.
Landlord shall use good faith reasonable efforts to keep Tenant's
financial statements, records and information confidential,
however, Tenant acknowledges that such financial statements,
records and information may be disclosed to Landlord's employees,
agents, and representatives, (including property manager and
asset manager) as well as investors, lenders, buyers, prospective
investors, prospective lenders and prospective buyers of the
Project.
l. Further Assurances. The parties agree to promptly sign all
documents reasonably requested to give effect to the provisions
of this Lease.
m. Mortgagee Protection. Tenant agrees to send by certified or
registered mail to any mortgagee or deed of trust beneficiary of
Landlord whose address has been furnished to Tenant, a copy of
any notice of default served by Tenant on Landlord. If Landlord
fails to cure such default within the time provided for in this
Lease, such mortgagee or beneficiary shall have an additional
thirty (30) days to cure such default; provided that if such
default cannot reasonably be cured within that thirty (30) day
period, then such mortgagee or beneficiary shall have such
additional time to cure the default as is reasonably necessary
under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the
agreements of the parties with respect to any matter covered or
mentioned in this Lease, and no prior agreement or understanding
pertaining to any such matter shall be effective for any purpose.
No provisions of this Lease may be amended or added to except by
an agreement in writing signed by the parties or their respective
successors in interest.
14
o. Recording. Tenant shall not record the Lease without the prior
written consent of Landlord. Tenant, upon the request of
Landlord, shall execute and acknowledge a "short form" memorandum
of this Lease for recording purposes.
p. Severability. A final determination by a court of competent
jurisdiction that any provision of this Lease is invalid shall
not affect the validity of any other provision, and any provision
so determined to be invalid shall, to the extent possible, be
construed to accomplish its intended effect. In the event that
any material provision (or any material part of any provision)
contained in this Lease shall for any reason be held to be
invalid, unlawful or unenforceable in any respect, Landlord and
Tenant shall, at Landlord's election, amend this Lease so as to
render every provision hereby fully valid, lawful and enforceable
in all respect, and so as to result in a revised lease with
equivalent economic and legal substance as if no provision or
portion of this Lease had been declared invalid, unlawful or
unenforceable.
q. Successors and Assigns. This Lease shall apply to and bind the
heirs, personal representatives, and permitted successors and
assigns of the parties.
r. Time of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right or
remedy of Landlord upon any default by Tenant shall impair such
right or remedy or be construed as a waiver of such default.
The receipt and acceptance by Landlord of delinquent Rent shall
not constitute a waiver of any default.
No act or conduct of Landlord, including, without limitation, the
acceptance of keys to the Premises, shall constitute an
acceptance of the surrender of the Premises by Tenant before the
expiration of the Term. Only a written notice from Landlord to
Tenant shall constitute acceptance of the surrender of the
Premises and accomplish a termination of the Lease.
Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or
render unnecessary Landlord's consent to or approval of any
subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and
shall not be a waiver of any other default concerning the same or
any other provision of the Lease.
40. WAIVER OF JURY TRIAL
LANDLORD AND TENANT WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ALL MATTERS
ARISING OUT OF THIS LEASE OR USE AND OCCUPANCY OF THE PREMISES, EXCEPT
CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE. IF LANDLORD COMMENCES
ANY SUMMARY PROCEEDING FOR NONPAYMENT OF RENT, TENANT WILL NOT
INTERPOSE, AND WAIVES THE RIGHT TO INTERPOSE, ANY COUNTERCLAIM IN ANY
SUCH PROCEEDING. TENANT HEREBY CONSTITUTES AND IRREVOCABLY APPOINTS
ANY ATTORNEY OF ANY COURT OF RECORD TO BE THE TRUE AND LAWFUL ATTORNEY
OF TENANT, AND, IN THE NAME, PLACE AND STEAD OF THE TENANT (a) TO
APPEAR FOR AND ON BEHALF OF TENANT IN ANY COURT OF RECORD AT ANY TIME
IN ANY ACTION OR ACTIONS BROUGHT AGAINST THE TENANT FOR THE
ENFORCEMENT OF ANY RIGHT OF THE LANDLORD HEREUNDER, (b) TO WAIVE THE
ISSUANCE OF SERVICE OF PROCESS AND TRIAL BY JURY, AND (c) FROM TIME TO
TIME, TO CONFESS JUDGMENT OR JUDGMENTS IN FAVOR OF THE LANDLORD AND
AGAINST TENANT FOR ANY RENT OR OTHER CHARGES DUE HEREUNDER AND
INTEREST THEREON, AND FOR THE COSTS OF SUIT AND REASONABLE ATTORNEYS'
FEES IN FAVOR OF LANDLORD, AND TO RELEASE ALL ERRORS THAT MAY OCCUR OR
INTERVENE IN SUCH PROCEEDINGS, AND TO CONSENT THAT EXECUTION OF ANY
JUDGMENT OR DECREE IN FAVOR OF LANDLORD AND AGAINST TENANT MAY ISSUE
FORTHWITH.
15
The parties hereto have executed this Lease as of the dates set forth below.
TENANT LANDLORD
International Data Products, Corp. Real Estate Income Partners III,
Limited Partnership
By: /s/ George D. Fuster By: Birtcher Investments
- ----------------------------
Its: President Its: Authorized Agent
- ----------------------------
Date: 1/25/95 By: /S/ Michael S. Buzar
- ---------------------------- ----------------------------
Michael S. Buzar
By: /s/ Oscar Fuster Its: Senior Vice President
- ----------------------------
Its: VP & Secretary Date: 1/31/95
- ---------------------------- ----------------------------
Date: 1/25/95
- ----------------------------
16
EXHIBIT "A"
To Lease dated January 6, 1995
By and between
REAL ESTATE INCOME PARTNERS III, Limited Partnership, as Landlord, and
International Data Products, Corp., as Tenant
FLOOR PLAN
[GRAPHIC]
EXHIBIT "A"
To Lease dated January 6, 1995
By and between
REAL ESTATE INCOME PARTNERS III, Limited Partnership, as Landlord, and
International Data Products, Corp., as Tenant
FLOOR PLAN
[GRAPHIC]
EXHIBIT "B"
To Lease dated January 6, 1995
By and between
REAL ESTATE INCOME PARTNERS III, Limited Partnership, as Landlord, and
International Data Products, Corp., as Tenant
SITE PLAN
[GRAPHIC]
EXHIBIT "C"
To Lease dated January 6, 1995
by and between
REAL ESTATE INCOME PARTNERS III, Limited
Partnership, as Landlord, and International
Data Products, Corp., as Tenant
WORK LETTER
THIS WORKLETTER AGREEMENT ("Workletter") is executed simultaneously with that
certain Lease Between Real Estate Income Partners III, as Landlord, and
International Data Products, Corp., as Tenant Relating to demised premises
("Premises"), which Premises are more fully identified in the Lease. Capitalized
Terms used herein, unless otherwise defined in this Workletter, shall have the
respective meanings assigned To them in the Lease.
For and in consideration of the agreement it lease the demised premises and the
mutual covenants contained Herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. Delivery of Premises. Landlord delivered the Premises to Tenant pursuant
to that Temporary Occupancy Agreement dated January 6, 1995 and Tenant accepted
the Premises in its "as is" condition.
2. Work. Tenant, at its sole cost and expense, shall perform or cause to be
performed the work (the "Work") in the Premises provided for in the Plans (as
defined in Paragraph 3 hereof) submitted to and approved by Landlord, provided,
however, that Tenant's work shall not include Tenant's furniture, furnishings,
equipment or other interior decor. Tenant's Work shall be instructed in a good
and workmanlike fashion, in accordance with the requirements set forth herein
and in compliance with all applicable laws, ordinances, rules and other
governmental requirements. Tenant shall commence the construction of the Work
promptly following compellation of the pre-construction activities provided for
in Paragraph 3 below and shall diligently proceed with all such construction.
Tenant shall coordinate its work so as to avoid interference with any work being
performed by or on behalf of Landlord and other tenants in the Project.
3. Preconstruction Activities:
(a) As soon as reasonably possible, but in no event later than February 15,
1995, Tenant shall submit the following information and items to Landlord for
Landlord's review and approval:
(i) a detailed construction schedule containing the major
components of the Work and the time required for
each, including the scheduled commencement date of
construction of the Work, milestone dates and the
estimated date of completion of construction;
(ii) an itemized statement of the estimated construction
cost, including permits and architectural and
engineering fees;
(iii) evidence satisfactory to Landlord of Tenant's ability
to pay the cost of the Work as and when payments
become due. Such evidence shall be in the form of an
unconditional written commitment from a responsible
leader to pay for the Work or evidence of current net
assets in the form of cash, cash equivalents or other
liquid assets of Tenant which have been and will
continue to be segregated for payment of the Work
when due;
(iv) the names and addresses of Tenant's contractors (and
the contractors' subcontractors) to be engaged by
Tenant for the Work ("Tenant's Contractors").
Landlord has the right to approve or disapprove
Tenant's Contractors. Tenant shall not employ as
Tenant's Contractors any persons or entities
disapproved by Landlord. If Landlord has
affirmatively approved only certain contractor(s)
and/or subcontractors(s) from Tenant's list, Tenant
shall employ as Tenant's contractors only those
persons or entities
19
as approved. Landlord hereby approves Kerr/Mast
Construction Group, Inc. Landlord may, at its
election, designate a list of approved contractors
for performance of work, involving electrical,
mechanical, plumbing or life-safety systems, from
which Tenant must select its contractors for such
Work;
(v) certified copies of insurance policies or
certificates of insurance as hereinafter described.
Tenant shall not permit Tenant's Contractors to
commence work until the required insurance has been
obtained and certified copies of policies or
certificates have been delivered to Landlord:
(vi) payment and performance bonds for all of Tenant's
Contractors naming Landlord as a duel obligee; and
(vii) the Plans for the Work, which Plans shall be subject
to Landlord's approval in accordance with Paragraph 3
(b) below.
Tenant will update such information and items by notice to Landlord of any
changes.
(b) As used herein, the term "Plans" shall mean full and detailed
architectural and engineering plans and specifications cover the Work
(including, without limitation, architectural, mechanical and electrical working
drawings for the Work). The Plans shall be subject to Landlord's approval and
the approval of all local governmental authorities requiring approval, if any.
Landlord shall give its approval or disapproval (giving general reasons in case
of disapproval) of the Plans within five (5) days after the receipt thereof by
Landlord. Landlord agrees not to unreasonably withhold its approval of said
Plans; provided, however, that Landlord shall not be deemed to have acted
unreasonably if it withholds its consent because, in Landlord's opinion: (i) the
Work is likely to affect adversely Building systems, the structure of the
Building or the safety of the Building or project and their occupants; (ii) the
Work would increase Landlord's ability to furnish services to Tenant or other
tenants in the Project; (iii) the work would increase the cost of operating the
Building; (iv) the Work would violate any governmental laws, rules or
ordinances; or (v) the Work contains or uses hazardous or toxic materials; or
(vi) the Work would adversely affect the appearance of the Building or Project.
The foregoing reasons, however, shall not be exclusive of the reasons for which
Landlord may withhold consent, whether or not such other reasons are similar to
or dissimilar from the foregoing. Landlord shall cooperate with Tenant by
discussing or reviewing preliminary plans and specifications, at Tenant's
Request prior to completion of the full, final detailed Plans, in order to
expedite preparation of the final Plans submitted by Tenant, Tenant shall,
within three (3) days thereafter, submit to Landlord for its approval the Plans
as amended in accordance with the changes so required. The Plans shall also be
revised, and the Work shall be changed, to incorporate any work required in the
Premises by any local governmental field inspector. Landlord's approval of the
Plans shall in no way be deemed to be acceptance or approval of any element
therein contained which is in violation of any applicable laws, ordinance,
regulations or other governmental requirements.
(c) No Work shall be undertaken or commenced by Tenant in the Premises
until:
(i) the Plans have been submitted to and approved by Landlord;
(ii) all necessary building permits have been obtained by Tenant:
(iii) all required insurance coverages have been obtained by Tenant.
(Failure of Landlord to receive evidence of such coverage upon
commencement of the Work shall not waive Tenant's obligations
to obtain such coverages.);
(iv) proper provision, which is satisfactory to Landlord, has been
made by Tenant for payment in full of the cost of the Work;
(v) items required to be submitted to Landlord prior to
commencement of construction of the Work have been so
submitted and have been approved, where required;
(vi) the construction escrow referred to in Paragraph 10 hereof has
been established and
20
(vii) Landlord has given written notice that the Work can proceed
subject to such reasonable conditions as Landlord may impose.
4. DELAYS. IN THE EVENT TENANT FAILS TO DELIVER OR DELIVER IN SUFFICIENT
AND ACCURATE DETAIL THE INFORMATION REQUIRED UNDER PARAGRAPH 3 ON OR BEFORE THE
RESPECTIVE DATES SPECIFIED IN SAID PARAPGRAPH, OR IN THE EVENT TENANT, FOR ANY
REASON, FAILS TO COMPLETE THE WORK ON OR BEFORE THE SCHEDULED COMMENCEMENT DATE
OF THE TERM OF THE LEASE, TENANT SHALL BE RESPONSIBLE FOR RENT AND ALL OTHER
OBLIGATIONS AS SET FORTH IN THE LEASE FROM THE SCHEDULED DATE FOR THE
COMMENCEMENT DATE UNDER THE LEASE, REGARDLESS OF THE DEGREE OF COMPLETION OF THE
WORK ON SUCH DATE, AND NO SUCH DELAY IN COMPLETION OF THE WORK ON SUCH DATE, AND
NO SUCH DELAY IN COMPLETION OF THE WORK SHALL RELIEVE TENANT OF ANY OF ITS
OBLIGATIONS UNDER SAID LEASE.
5. Charges and Fees,Subject to Paragraph 9 below, Tenant shall be
responsible for all costs and expenses attributable to the Work including
supervisory fee to Landlord in an amount equal to $15,000.00, which shall be
retained by Landlord, as Landlord's administrative and overhead expense and a
fee for completed space plans in an amount equal to 5,500.00.
6. Change Orders. All changes to the final Plans requested by Tenant must
be approved by landlord in advance in the implementation of such changes as part
of the Work. All delays caused by Tenant- initiated change order review process,
are solely the responsibility of Tenant and shall cause no delay in the
commencement of the Leas or the rental and other obligations therein set forth.
7. Standards of Design and Construction and Conditions of Tenant's
Performance. All work done in or upon the Premises by Tenant shall be done
according to the standards set forth in the Paragraph 7, except as the same may
be modified in the Plans approved by or on behalf of Landlord and Tenant.
(a) Tenant's Plans and all design and construction of the Work shall comply
with all applicable statutes, ordinances, regulations, laws, codes and
industry standards, including, but not limited to, requirements of
Landlord's fire insurance underwriters. Approval by Landlord of the Plans
shall not constitute a waiver of this requirement of assumption by Landlord
of responsibility for compliance. Where several sets of the foregoing laws,
codes and standards must be met, the strictest shall apply where not
prohibited by another law, code or standard.
(b) Tenant shall obtain, at its own cost and expense, all required building
permits and, when construction has been completed, shall obtain, at its own
cost and expense, an occupancy permits for the Premises, which permit shall
be delivered to Landlord. Tenant's failure to obtain such permits shall not
cause a delay in the commencement of the Lease or rental and other
obligations therein set forth.
(c) Tenant's Contractors shall be licensed contractors, possessing good
labor relations, capable of performing quality workmanship and working in
harmony with Landlord's contractors and subcontractors and with other
contractors and subcontractors in the Building. All work shall be
coordinated with any other construction or other work in the Building or
Project in order not to affect adversely construction work being performed
by or for Landlord or its tenants, it being understood that, in the event
of any conflict, Landlord and its contractors and subcontractors shall have
priority over Tenant and Tenant's Contractors.
(d) Landlord shall have the right, but not the obligation, to perform on
behalf of and for the account of Tenant, subject to reimbursement by
Tenant, any work (i) which Landlord deems to be necessary of an emergency
basis, (ii) which pertains to structural components, building systems or
the general utility systems for the Building, (iii) which pertains to the
erection of temporary safety barricades or signs during construction, or
(iv) which pertains to patching of the Work and other work in the Building.
(e) Tenant shall use only new, first-class materials in the Work, except
where explicitly shown otherwise in the Plans approved by Landlord and
Tenant. Tenant shall obtain warranties of at least one (1) year's duration
from the completion of the Work against defects in workmanship and
materials on all performed and equipment installed in the Premises as part
of the Work.
21
(f) Tenant and Tenant's Contractors, in performing work, shall not
interfere with other tenants and occupants of the Project. Tenant and
Tenant's Contractors shall make all efforts and take all steps appropriate
to construction activities undertaken so as not to interfere with operation
of the Project and shall, in any event, comply with all reasonable rules
and regulations existing from time to time at the Building. Tenant and
Tenant's Contractors shall take all precautionary steps to minimize dust,
noise and construction traffic and to protect their facilities and the
facilities of others affected by the Work and to properly police same.
Construction equipment and materials are to be kept within the Premises,
and delivery and loading of equipment and materials shall be done at such
locations and at such time as Landlord shall direct so as not to burden the
construction or operation of the Building or Project.
(g) Landlord shall have the right to order Tenant or any of Tenant's
Contractors who violate the requirements imposed on Tenant or Tenant's
Contractors in performing work to cease work and remove its equipment and
employees from the Building or Project. No such action by Landlord shall
delay the commencement of the Lease or the rental and other obligations
therein set forth.
(h) Utility costs or charges for ant service (including) HVAC, hoisting or
freight elevator and the like) to the Premises shall be the responsibility
of Tenant and shall be paid for by Tenant at Landlord's rates. Tenant shall
apply and pay for all utility maters required. Tenant shall pay for all
support services provided by Landlord's contractors. Tenant shall arrange
and pay for the removal of construction debris and shall not place debris
in the Building's or Project's waste containers.
(i) Tenant shall permit access to the Premises, and the Work shall be
subject to inspection, by Landlord and Landlord's architects, engineers
contractors and other representatives at all times during the period in
which the Work is being constructed and installed and following completion
of the Work.
(j) Tenant shall proceed with its work expeditiously, continuously and
efficiently, and shall use its best efforts to complete the same as soon as
reasonably possible. Tenant shall notify Landlord upon completion of the
Work and shall furnish Landlord and Landlord's title insurance company with
such further documentation as may be necessary under Paragraphs 9 and 10
below.
(k) Tenant shall have no authority to deviate from the Plans in performance
of the Work, except as authorized by Landlord and its designated
representative in writing. Tenant shall furnish Landlord "as-built"
drawings of the Work within thirty (30) days after completion of the Work.
(l) Landlord shall have the right to run utility lines, pipes, conduits
ductwork and component parts of all mechanical and electrical systems where
necessary or desirable through the Premises, to repair alter, replace or
remove the same, and to require Tenant to install maintain proper access
panels thereto.
(m) Tenant shall impose on and enforce all applicable terms with this
Workletter Agreement against Tenant's architect and Tenant's Contractors.
8. Insurance and Indemnification.
(a) In addition to any insurance which may be required under the Lease,
Tenant shall secure, pay for and maintain or cause Tenant's Contractors secure,
pay for and maintain during the continuance of construction and fixturing work
within the Building or Premises, insurance in the following minimum coverages
and limits of liability:
(i) workers' compensation and employers' liability insurance with
limits of not less than $500,000.00, or such higher amounts as
may be required from time to time by any employee benefit acts
or other statutes applicable where the work is to be
performed, and in any event sufficient to protect Tenant's
Contractors from liability aforementioned acts;
(ii) comprehensive or commercial general liability insurance
(including contractors' protective liability) in an amount not
less than $2,000,000.00 per occurrence whether involving
bodily injury liability
22
(or death resulting thereform) or property damage liability or
a combination thereof with a minimum aggregate limit of
$2,000,000.00 and with umbrella coverage with limits not less
than $10,000,000.00. Such insurance shall provide for
explosion and collapse, completed operations coverage and
broad form blanket contractual liability coverage and shall
insure Tenant's Contractors against any and all claims for
bodily injury, including death resulting thereform, and damage
to the property of others and arising from its operations
under the contracts whether such operations are performed by
Tenant's Contractors or by anyone directly or indirectly
employed by any of them;
(iii) comprehensive automobile liability insurance, including the
ownership, maintenance and operation of any automotive
equipment, owned, hired or nonowned, in an amount not less
than $500,000.00 for each person in oneaccident and
$1000,000.00 for injuries sustained by two or more persons in
any one accident, and property damage liability in an amount
not less than $1,000,000.00 for each accident. Such insurance
shall insure Tenant's Contractors against any and all claims
for bodily injury, including death resulting thereform, and
damage to the Property of others arising form its operations
under the contracts, whether such operations are performed by
Tenant's Contractors or by anyone directly or indirectly
employee by any of them;
(iv) "all risk" builder's risk insurance upon the entire Work to
the full insurable value thereof. This insurance shall include
the interests of Landlord and Tenant (and their respective
contractors and subcontractors of any tier to the extent of
any insurable interest therein) in the Work and shall insure
against the perils of fire and extended coverage and shall
include "all risk" builder's risk insurance for physical loss
or damage including, without duplication of coverage, theft,
vandalism and malicious mischief. If portions of the Work are
stored off the site of the Building or in transit to said site
are not covered under said "all risk" builder's risk
insurance, then Tenant shall effect and maintain similar
property insurance on such portions of the Work. Any loss
insured under said "all risk" builder's risk insurance is to
be adjusted with Landlord and Tenant and made payable to
Landlord as trustee for the insureds, as their interests may
appear.
All policies (expect the worker's compensation policy) shall be endorsed to
include as additional insured parties Landlord and its beneficiaries, their
partners, directors, officers, employees and agents, Landlord's contractors,
Landlord's architects, and such additional persons as Landlord may designate.
The waiver of subrogation provisions Contained in the Lease shall apply to all
insurance policies (except the workers' compensation policy) to be obtained by
Tenant pursuant to this Paragraph. The insurance policy endorsements shall also
provide that all additional insured parties shall be given thirty (30) days'
prior written notice of any reduction, cancellation for nonrenewal of coverage
(except that ten (10) days' notice shall be sufficient in the case of
cancellation for nonpayment of premium) and shall provide that the insurance
coverage afforded to the additional insured parties thereunder shall be primary
to any insurance carried independently by said additional insured parties.
Additionally, where applicable, each policy shall contain a cross-liability and
severability of interest clause.
(b) Without limitation of the indemnification provisions contained in the
Lease, to the fullest extent permitted by law Tenant agrees to indemnify,
protect, defend and hold harmless Landlord, Landlord's contractors and
Landlord's architects and their partners, directors, officers, employees and
agents, from and against all claims, liabilities, losses, damages and expenses
of whatever nature arising out of or in connection with the Work or the entry of
Tenant or Tenant's Contractors into the Project, the Building and the Premises,
including, without limitation, mechanics' liens or the cost of any repairs to
the Premises, Building or Project necessitated by activities of Tenant or
Tenant's Contractors and bodily injury to persons or damage to the property of
Tenant, its employees, agents, invitees Or licensees or others. It is understood
and agreed that the foregoing indemnity shall be in addition to the insurance
Requirements set forth above and shall not be in discharge of or in substitution
for same or any other indemnity or Insurance provision of the Lease.
23
9. Landlord's Contribution: Excess Amounts.
(a) Upon completion of the work, Tenant shall furnish Landlord with final
waivers of liens and contractors' affidavits, in such form as may be required by
Landlord and Landlord's title insurance company, from all parties performing
labor or supplying materials or services in connection with the Work showing
that all of said parties have been compensated in full and waiving all liens in
connection with the Premises and Building. Tenant shall submit to Landlord a
detailed breakdown of Tenant's total construction costs, together with such
evidence of payment as is reasonably satisfactory to Landlord.
(b) Upon completion of the Work and Tenant's satisfaction of all
requirements set for herein, Landlord shall make a dollar contribution in the
amount of Four Thousand Six Hundred Fifty- Nine and No/100 Dollars ($400,659.00)
("Landlord's Contribution") for application to the extent Thereof to the cost of
the Plans, the Work and Tenant's actual. Documented costs to complete its
physical move (the "Moving Expenses"). If such cost of the Plans, the Work and
the Moving Expenses exceeds Landlord's Contribution, or if the Moving Expense
exceed One and No/100 Dollars ($1.00) per rentable square foot, Tenant solely
shall have responsibility for the payment of Such excess cost. If the cost of
the Plans, the Work and the Moving Allowance is less than Landlord's
Contribution, Landlord shall be entitled to retain such excess amount.
Notwithstanding Anything herein to the contrary, Landlord may deduct from
Landlord's Contribution any amounts due to Landlord or its architects or
engineers under this Workletter.
10. Construction Escrow. Prior to commencement of any construction or payment to
Tenant or to any of Tenant's Contractors, Tenant shall establish a construction
escrow or other payment procedure acceptable to Landlord at a title insurance
company designated by Landlord providing for payment to Tenant's Contractors and
payment of all other costs associated with the Work as the Work progresses, upon
the title insurance company's satisfactory review of lien waivers and sworn
statements from the Tenant's Contractors and other applicable parties and upon
the title insurance company's willingness to issue title insurance over
mechanics' lien relating to Tenant's contacts and the Work to the date of each
draw. Tenant shall pay for the Work when required under its contracts for the
Work and shall not permit the Premises or the Building to become subject to any
lien on account of labor, material or services furnished to Tenant. Tenant
shall, from time to time, deposit funds into the construction escrow in amounts
sufficient to pay the costs of the Work. Tenant may not withdraw funds except to
pay Tenant's Contractors, unless Landlord has consented To such withdrawal of
funds by Tenant and shall also provide that if Tenant fails to pay for the Work
when Due or if any mechanics' lien is filed in connection with the Work,
Landlord may use and withdraw the funds in the escrow to pay for the Work or
remove the lien without Tenant's consent. Tenant shall provide such contractor's
affidavits, partial and final waivers of lien, architect's certificates and any
additional documentation (including, without limitation, Tenant or contractor
personal undertakings) which may be requested by Landlord, such title insurance
company or any holder of a mortgage on the Building in connection with said
escrow or consistent with any other title insurance requirements concerning the
Work.
11. Miscellaneous.
(a) Except as expressly set forth herein or in the Lease,
Landlord has no agreement with Tenant and has no obligation to do any
work with respect to the Premises.
(b) If the plans for the Work require the construction and
installation of more fire hose cabinets or telephone/electrical closets
than the number provided in the core of the Building in which the
Premises are located, then Tenant agrees to pay all costs and expenses
arising from the construction and installation of such additional fire
hose cabinets or Telephone/.electrical closets.
(c) Time is of the essence under this Workletter.
(d) Any person signing this Workletter on behalf of Landlord
and/or Tenant warrants and represents he has authority to do so.
(e) If Tenant fails to make any payment relating to the Work
as required hereunder, Landlord, at its option, may complete the work
pursuant to the approved Plans and continue t o hold Tenant liable for
the costs thereof and all other costs due to Landlord. Tenant's failure
to pay any amounts owed by Tenant hereunder when due or Tenant's
failure to perform its obligations hereunder shall also constitute a
default under the Lease, and, Landlord
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shall have all the rights and remedies granted to Landlord under the lease
for non-payment of any amounts owed thereunder or failure by Tenant to
perform its obligations thereunder.
(f) Notices under this Workletter shall be given in the same manner as
under the Lease.
(g) The liability of Landlord hereunder or under any amendment hereto
or any instrument or document executed in connection herewith (including,
without limitation, the Lease) shall be limited to and enforceable solely
against Landlord's interest in the Building.
(h) The headings set forth herein are for convenience only.
(i) This Workletter sets forth the entire agreement of Tenant and
Landlord regarding the Work. This Workletter may only be amended if in
writing and duly executed by both Landlord and Tenant.
IN WITNESS WHEREOF, this Workletter is executed as of this 31st day of
January, 1995.
LANDLORD:
REAL ESTATE INCOME PARTNERS III
By: Birzhar Investments
Its: Authorized Agent
By: /s/ [illegible]
---------------------------
Title:
---------------------------
TENANT:
INTERNATIONAL DATA PRODUCTS, CORP.
By: /s/ Oscar Fuster
---------------------------
Title: VP & Secretary
EXHIBIT "D"
To Lease dated January 6, 1995
by and between
REAL ESTATE INCOME PARTNERS III, Limited Partnership, as Landlord,
and International Data Products, Corp., as Tenant.
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, concourses, ramps, courts,
vestibules, stairways, corridors, or halls shall not be obstructed or
used by Tenant or the employees, agents, servants, visitors or business
of Tenant for any purposes other than ingress and egress to and from the
Premises and for delivery of merchandise and equipment in prompt and
efficient manner, using elevators and passageways designated for
delivery by Landlord.
2. No awnings, air conditioning units, fans or other projections shall be
attached to 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 or Building, without the prior written consent of
Landlord. All electrical fixtures hung in offices or spaces along the
perimeter of the Premises must be fluorescent, of a quality type, design
and bulb color approved by Landlord unless the prior consent of Landlord
has been obtained for other lamping.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside
of the Premises or Building or inside of the Premises if the same can be
seen from the outside of the Premises without the prior written consent
of Landlord. In the event of the violation of the foregoing by Tenant,
Landlord may remove same without any liability, and may charge the
expense incurred by such removal to Tenant. Interior signs on doors and
directory tablet shall be inscribed, painted or affixed for Tenant by
Landlord and shall be of a size, color and style acceptable to Landlord.
4. The exterior windows and doors that reflect or admit light and air into
the Premises or the halls, passageways or other public places in the
Building, shall not be severed or obstructed by Tenant, nor shall any
articles be placed on the windowsills. No showcases or other articles
shall be put in front or affixed to any part of the exterior of the
Building, not placed in the halls, corridors or vestibules, nor shall
any article obstruct any air-conditioning supply or exhaust without the
prior written consent of Landlord.
5. The electrical and mechanical closets, water and wash closets, drinking
fountains and other plumbing, electrical and mechanical fixtures shall
not be used for any purposes other than those for which they are
constructed, and no sweepings, rubbish, rags, coffee grounds, acids or
other substances shall be deposited therein. All damages resulting from
any misuse of the fixtures shall be borne by the Tenant who, or whose
servants, employees, agents, visitors or licensees, shall have caused
the same. No person shall waste water by interfering or tampering with
the faucets or otherwise.
6. Tenant shall not mark, paint, drill into, or in any way deface any part
of the Premises or the Building. No boring, drilling of nails or screws,
outting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. Tenant shall
not lay floor tile or other similar floor covering in the Premises,
except with the prior approval of Landlord.
7. No portion of the Premises or the Building shall be used or occupied at
any time for manufacturing, for the storage of merchandise, for the sale
of merchandise, goods or property of any kind at auction or otherwise
without the express consent of Landlord, or as sleeping or lodging
quarters.
8. Tenant, Tenant's servants, employees, agents, visitors or licensees,
shall not at any time bring or keep upon the Premises any hazardous
waste, toxic, inflammable, combustible, caustic, poisonous or explosive
fluid, chemical or substance.
9. No bicycles, vehicles, or animals of any kind (other than a seeing eye
dog for a blind person), shall be brought into or kept by Tenant in or
about the Premises of the Building.
10. Tenant shall not use or occupy or permit any portion of the Premises to
be used or occupied as an office for offset printing or for the
possession, storage, manufacture, sale of liquor or narcotics, or as a
barber or manicure shop, a labor office, a doctor's or dentist's office,
a dance or music studio, any type of school, or for any use other than
those specifically granted in the Lease and with the express consent of
the Landlord. Tenant shall not engage or pay any employees on the
Premises, except those actually working for such Tenant on said Premises.
11. 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 Project or its desirability as a building for offices, and
upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising. In no event shall Tenant, without the
prior written consent of Landlord, use the name of the Building or
Project or use pictures or illustrations of the Building or Project.
12. Any person in the Building will be subject to identification by
employees and agents of Landlord. All persons in or entering Building
shall be required to comply with the security policies of the Building.
Tenant shall keep doors to unattended areas locked and shall otherwise
exercise reasonable precautions to protect property from theft, loss or
damage. Landlord shall not be responsible for the theft, loss or damage
of any property.
13. No additional locks or bolts of any kind shall be placed on any door in
the Building or the Premises and no lock on any door therein shall be
changed or altered in any respect without the consent of the Landlord.
Landlord shall furnish two keys for each lock on exterior doors to the
Premises and shall, on Tenant's request and at Tenant's expense, provide
additional duplicate keys. All keys, either furnished to, or otherwise
procured by Tenant, shall be returned to Landlord upon termination of
this Lease. Landlord may at all times keep a pass key to the Premises.
All entrance doors to the Premises shall be left closed at all times,
and left locked when the Premises are not in use. Tenant shall not copy
any keys.
14. Tenant shall give immediate notice to Landlord in case of theft,
unauthorized solicitation or accident in the Premises or in the Building
or of defects therein or in any fixtures or equipment, or of any known
emergency in the Building.
15. Tenant shall not use the Premises or permit the Premises to be used for
photographic, multilith or multigraph reproductions, except in
connection with its own business and not be a service for others,
without Landlord's prior permission.
16. No freight, furniture or bulky matter of any description will be
received into the Building or Project except in such manner, during such
hours and using such passageways as may be approved by Landlord, and
then only upon having been scheduled at least two (2) working days prior
to the date on which such service is required. Any hand trucks,
carryalls, or similar appliances suited for the delivery or receipt of
merchandise or equipment shall be equipped with rubber tires, side
guards and such other safeguards as Landlord shall require.
17. Tenants, or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time place, leave or discard any rubbish, paper,
articles, or objects of any kind whatsoever outside the doors of the
Premises or in the corridors or passageways of the Building or Project.
Page 26
18. Tenant shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices that
emit excessive sound or other waves or disturbances or create
obnoxious odors, any of which may be offensive to the other tenants and
occupants of the Building or Project, or that would interfere with the
operation of any device, equipment, radio, television broadcasting or
reception from or within the Building or elsewhere and shall not place
or install any projections, antennas, aerials or similar devices inside
or outside of the Premises or on the Building with Landlord's prior
written approval.
19. Tenant shall comply with all applicable federal, state and municipal
laws, ordinances and regulations, and building rules and shall not
directly or indirectly make any use of the Premises which may be
prohibited by any of the foregoing or which may be dangerous to persons
or property or may increase the cost of insurance or require additional
insurance coverage.
20. Tenant, its servants, employees, customers, invitees and guests shall,
when using the parking facilities in and around the Building observe
and obey all signs regarding fire lanes, no parking zones, visitor
parking and handicapped zones, and when parking, always park between
designated lines. Landlord reserves the right to tow away, at the
expense of the owners, any vehicle which is improperly parked or parked
in a "No Parking" zone. All vehicles shall be parked at the sole risk of
the owners, and Landlord assumes no responsibilities for damage or loss
of vehicles. There shall be no overnight parking of any kind, without
Landlord's prior written consent, which consent may be granted or
withheld at Landlord's sole discretion.
21. Tenant shall not serve, nor permit the serving of alcoholic beverages
in the Premises unless Tenant shall have procured Host Liquor Liability
Insurance, issued by companies and in amounts reasonably satisfactory
to Landlord, naming Landlord as an additional party insured.
22. The requirements of Tenant will be attended to only upon written
application at the office of the Building. Employees shall not perform
any work or do anything outside of the regular duties unless under
special instructions from the office of Landlord.
23. Canvassing, soliciting and peddling in the Building or Project is
prohibited and Tenant shall cooperate to prevent the same.
24. Except as otherwise explicitly permitted in its lease, Tenant shall not
do any cooking, conduct any restaurant, luncheonette or cafeteria for
the sale or service of food or beverages to its employees or to others,
install or permit the installation or use of any food, beverage,
cigarette, cigar or stamp dispensing machine or permit the delivery of
any food or beverage to the Premises, except by such persons
delivering the same as shall be approved by Landlord.
25. Tenant shall at all times keep the Premises neat and orderly.
26. The regular business hours of the Building shall be between 7:00 a.m.
to 6:00 p.m., Monday through Friday, and 8:00 a.m. to 1:00 p.m. on
Saturdays. The Building shall be closed to the public on Sundays, and
on New Year's Day, President's Day, Memorial Day, Independence Day,
Labor Day, the Thanksgiving holiday and Christmas, and such other
federal or state holidays as Landlord shall elect by notice to the
Tenants.
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