(As revised June 15, 1998) THIS DEED OF LEASE is made by and between LIBERTY
PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership ("LANDLORD")
with its address at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000 and OPEN PLAN
SYSTEMS, INC., a Virginia corporation, ("TENANT") with its address at 0000-00
Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, and is dated as of the date on which this
lease has been fully executed by Landlord and Tenant.
1. Summary of Terms and Certain Definitions.
(a) "PREMISES" (2): Approximate rentable square feet: 180,000
(b) "BUILDING" (2): Approximate rentable square feet: 180,000 Address: 0000-00
Xxxxxxxx Xxxxxx Xxxxxxxx,Xxxxxxxx 00000
(c) "TERM" (5): Fifty-one (51) months.
(i) "COMMENCEMENT DATE": May 1, 1998
(ii) "EXPIRATION DATE": July 31, 2002
(d) Minimum Rent (6) & Operating Expenses (7)
(i) "MINIMUM ANNUAL RENT": $381,600.00 (Three Hundred Eighty-one Thousand Six
Hundred and 00/100 Dollars), payable in monthly installments of $31,800.00
(Thirty-one Thousand Eight Hundred and 00/100 Dollars), increased as follows:
Lease Year Annual Monthly
08/01/99-07/31/2002 $404,496.00 $33,708.00
(ii) Estimated "ANNUAL OPERATING EXPENSES: Not applicable (gross lease).
(e) "PROPORTIONATE SHARE" (7(a)): 100.00% (Ratio of approximate rentable square
feet in the Premises to approximate rentable square feet in the Building)
(f) "USE" (4): Warehousing and refinishing of office partitions.
(g) "SECURITY DEPOSIT" (28): $16,500.00 (deposited with original lease).
(h) CONTENTS: This lease consists of the Index, pages 1 through 11 containing
Sections 1 through 28 and the following, all of which are attached hereto and
made a part of this lease:
Rider with Sections 29 and 30
Exhibits: "A" - Plan showing Premises "C" - Building Rules
"B" - Commencement Certificate Form "D" - Estoppel Certificate Form
2. Premises. Landlord hereby leases. to Tenant and Tenant hereby leases from
Landlord the Premises as shown on attached Exhibit "A" within the Building (the
' ding and the lot on which it is located, the PROPERTY"), together with the
nonexclusive right with Landlord and other occupants of the Building to use all
areas and facilities provided by Landlord for the use of all tenants in the
Property including any driveways, sidewalks and parking, loading and landscaped
areas (the "COMMON AREAS")
3. Acceptance of Premises. Tenant has examined and knows the condition of the
Property, the zoning, streets, sidewalks, parking areas, subs and access ways
adjoining it, visible easements, any surface conditions and the present uses,
and Tenant accepts them in the condition in which they now are, without relying
on any representation, covenant or warranty by Landlord Tenant and its agents
shall have the right, at Tenant's own risk expense and responsibility, at all
reasonable times prior to the Commencement Date, to enter the Premises for the
purpose of taking measurements and installing its furnishings and equipment-,
provided that the Premises are vacant and Tenant obtains Landlords prior written
consent.
4. Use: Compliance.
(a) Permitted Use. Tenant shall occupy and use the Premises for and only for the
Use specified in Section 1(f) above and in such a manner as is lawful, reputable
and will not create any nuisance or otherwise -interfere with any other tenant's
normal options or the management of the Building. Without limiting the
foregoing. such Use shall exclude any use that would cause the Premises or the
Property to be deemed a "place of public accommodation" under the Americans with
Disabilities Act (the "ADA") as further described in the Building Rules (defined
below). All Common Areas shall be subject to Landlord's exclusive control and
management at all times. Tenant shall not use or permit the use of any portion
of the Property for outdoor storage or installations outside of the Premises nor
for any use that would interfere with any other person's use of any portion of
the Property outside of the Premises.
(b) Compliance. Landlord represents that, as of the date of this lease, there is
no action required with respect to the Premises or Common Areas under any laws
(including Title III of the ADA), ordinances, notices, orders, rules,
regulations and requirements applicable to the Premises or to the Common Areas.
From and after the Commencement Date, Tenant shall comply promptly, at its sole
expense, (including making any alterations or improvements) with all laws
(including the ADA). ordinances, notices, orders, rules, regulations and
requirements regulating the Property during the Term which impose any duty upon
Landlord or Tenant with respect to Tenant's use, occupancy or alteration of, or
Tenant's installations in or upon, the Property including the Premises, (as the
same may be amended, the "LAWS AND REQUIREMENTS") and the building rules
attached as Exhibit "C", as' amended by Landlord from time to time (the
"BUILDING RULES"). Provided, however, that Tenant shall not be required to
comply with the Laws and Requirements with respect to the footings, foundations,
structural steel columns and girders forming a part of the Property unless the
need for such compliance arises out of Tenant's use, occupancy or alteration of
the Property, or by any act or omission of Tenant or any employees, agents,
contractors, licensees or invitees ("AGENTS") of Tenant. With respect to
Tenant's obligations as to the Property, other than the Premises, at Landlord's
option and at Tenant's expense, Landlord may comply with any repair, replacement
or other construction requirements of the Laws and Requirements and Tenant shall
pay to Landlord all costs thereof as additional rent.
(c) Environmental. Tenant shall comply, at its sole expense, with all Laws and
Requirements as set forth above. all manufacturers' instructions and all
requirements of insurers relating to the treatment, production, storage,
handling, transfer, processing, transporting, use, disposal and release of
hazardous substances, hazardous mixtures, chemicals, pollutants, petroleum
products, toxic or radioactive matter (the "RESTRICTED ACTIVITIES"). Tenant
shall deliver to Landlord copies of all Material Safety Data Sheets or other
written information prepared by manufacturers, importers or suppliers of any
chemical and all notices, filings, permits and any other written communications
from or to Tenant and any entity regulating any Restricted Activities.
(d) Notice. If at any time during or after the Term, Tenant becomes aware of any
inquiry, investigation or proceeding regarding the Restricted Activities or
becomes aware of any claims, actions of investigations regarding the ADA, Tenant
shall give Landlord written notice, within 5 days after first learning thereof,
providing all available information and copies of any notices.
5. Term. The Term of this lease shall commence on the Commencement Date and
shall end at 11:59 p. m. on the last day of the Term (the "EXPIRATION DATE"),
without the necessity for notice from either party, unless sooner terminated in
accordance with the terms hereof. At Landlord's request, Tenant shall confirm
the Commencement Date and Expiration Date by executing a lease commencement
certificate in the form attached as Exhibit "B".
6. Minimum Annual Rent. Tenant agrees to pay to Landlord the Minimum Annual Rent
in equal monthly installments in the amount set forth in Section 1(d) (as
increased at the beginning of each lease year as set forth in Section 1(d)), in
advance, on the first day of each calendar month during the Term, without
notice, demand or setoff, at Landlord's address designated at the beginning of
this lease unless Landlord designates otherwise; provided that rent for the
first full month shall be paid at the signing of this lease. If the Commencement
Date falls on a day other than the first day of a calendar month, the tenant
shall be apportioned pro rata on a per diem basis for the period from the
Commencement Date until the first day of the following calendar month and shall
be paid on or before the Commencement Date. As used in this lease, the term
"lease year" means the period from the Commencement Date through the succeeding
12 full calendar months (including for the first lease year any partial month
from the Commencement Date until the first day of the first full calendar month)
and each successive 12 month period thereafter during the Term.
7. Operation of Property: Payment of Expenses.
(a) Payment of Operating Expenses. Tenant shall pay to Landlord the Annual
Operating Expenses in equal monthly installments in the amount set forth in
Section 1(d) (prorated for any partial month), from the Commencement Date and
continuing throughout the Term on the first day of each calendar month during
the Term, as additional rent, without notice, demand or setoff ;provided that
the monthly installment for the first full month shall be paid at the signing of
this lease. Landlord shall apply such payments to the operating expenses owed to
Landlord by Tenant pursuant to the following Sections 7(b)-(f). The amount of
the Annual Operating Expenses set forth in Section 1(d) represents Tenant's
Proportionate Share of the estimated operating expenses during the first
calendar year of the Term on an annualized basis; from time to, time Landlord
may adjust such estimated amount if the estimated operating expenses increase.
By April 30th of each year (and as soon as practical after the expiration or
termination of this lease or at any time in the event of a sale of the
Property), Landlord shall provide Tenant with a statement of the actual amount
of such expenses for the preceding calendar year or part thereof. Landlord or
Tenant shall pay to the other the amount of any deficiency or overpayment then
due from one to the other or, at Landlords option, Landlord may credit Tenant's
account for any overpayment. Tenant's obligation to pay the Annual Operating
Expenses pursuant to this Section 7 shall survive the expiration or termination
of this lease.
(b) Taxes and Other Impositions. Tenant shall pay prior to delinquency all
levies, taxes (including sales taxes and gross receipt taxes), assessments,
liens, license and permit fees, which are applicable to the Term, and which are
imposed by any authority or under any law, ordinance or regulation thereof, or
pursuant to any recorded covenants or agreements, and the reasonable cost of
contesting any of the foregoing (the "IMPOSITIONS") upon or with respect to the
Premises, or any improvements thereto, or directly upon this lease or the Rent
(defined in Section 7(f)) or amounts payable by any subtenants or other
occupants of the Premises, or against Landlord because of Landlords estate or
interest herein. Additionally, Tenant shall pay as aforesaid its Proportionate
Share of any Imposition which is not imposed upon the Premises as a separate
entity but which is imposed upon all or. part of the Property or upon the leases
or rents relating to the Property.
(i) Nothing herein contained shall be interpreted as requiring Tenant to pay any
income. excess profits or corporate capital stock tax imposed or assessed upon
Landlord, unless such tax or any similar tax is levied or assessed in lieu of
all or any part of any Imposition or an increase in any Imposition.
(ii) If it shall not be lawful for Tenant to reimburse Landlord for any of the
Impositions, the Minimum Annual Rent shall be increased by the amount of the
portion of such Imposition allocable to Tenant, unless prohibited by law.
(c) Insurance.
(i) Property. Landlord shall keep in effect, and Tenant shall pay to Landlord
its Proportionate Share of the cost of, insurance against loss or damage to the
Building or the Property by fire and such other casualties as may be included
within fire, extended coverage and special form insurance covering the full
replacement cost of the Building (but excluding coverage of Tenant's personal
property in, and any alterations by Tenant to, the Premises), and such other
insurance as Landlord may reasonably deem appropriate or as may be required from
time-to-time by any mortgagee.
(ii) Liability. Tenant, at its own expense, shall keep in effect comprehensive
general public liability insurance with respect to the Premises and the
Property, including contractual liability insurance, with such limits of
liability for bodily injury (including death) and property damage as reasonably
may be required by Landlord from time-to-time, but not less than a combined
single limit of $1,000,000 per occurrence and a general aggregate limit of not
less than $3,000,000 (which aggregate limit shall apply separately to each of
Tenant's locations if more than the Premises); however, such limits shall not
limit the liability of Tenant hereunder. The policy of comprehensive general
public liability insurance also shall name Landlord and Landlord's agent as
insured parties with respect to the Premises, shall be written on an
"occurrence" basis and not on a "claims made" basis, shall provide that it is
primary with respect to any policies carried by Landlord and that any coverage
carried by Landlord shall be excess insurance, shall provide that it shall not
be cancelable or reduced without at least 30 days prior written notice to
Landlord and shall be issued in form satisfactory to Landlord. The insurer shall
be a responsible insurance carrier which is authorized to issue such insurance
and licensed to do business in the state in which the Property is located and
which has at all times during the Term a rating of no less than A V11 in the
most current edition of Best's Insurance Reports. Tenant shall deliver to
Landlord on or before the Commencement Date, and subsequently renewals of, a
certificate of insurance evidencing such coverage and the waiver of subrogation
described below.
(iii) Waiver of Subrogation. Landlord and Tenant shall have included in their
respective property insurance policies waivers of their respective insurers'
right of subrogation against the other party. If such a waiver should be
unobtainable or unenforceable, then such policies of insurance shall state
expressly that such policies shall not be invalidated if before a casualty, the
insured waives the right of recovery against any party responsible for a
casualty covered by the policy.
(iv) Increase of Premiums. Tenant agrees not to do anything or fail to do
anything which will increase the cost of Landlords insurance or which will
prevent Landlord from procuring policies (including public liability) from
companies and in a form satisfactory to Landlord. If any breach of the preceding
sentence by Tenant causes the rate of fire or other insurance to be increased,
Tenant shall pay the amount of such increase as additional rent promptly upon
being billed.
(d) Repairs and Maintenance; Common Areas; Building Management. Except as
specifically otherwise provided in this Section (d), Tenant at its sole expense
shall maintain the Premises in good order and condition, promptly make all
repairs necessary to maintain such condition, and repair any damage to the
Premises caused by Tenant or its contents. All repairs made by Tenant shall
utilize materials and equipment which are comparable to those originally used in
constructing the Building and Premises. When used in this Section (d), the term
"repairs" shall include replacements and renewals when necessary.
(i) Landlord, at its sole expense, shall make all necessary repairs to the
footings, foundations, structural steel columns and girders forming a part of
the Premises, provided that Landlord shall have no responsibility to make any
repair until Landlord receives written notice of the need for such repair. '
(ii) Landlord, at Tenant's sole expense, shall maintain and repair the HVAC
systems appurtenant to the Premises.
(iii) Landlord shall make all necessary repairs to the roof, exterior portions
of the Premises and the Building, utility and communications lines, equipment
and facilities in the Building, which serve more than one tenant, and to the
Common Areas, the cost of which shall be an operating expense of which Tenant
shall pay its Proportionate Share, provided that Landlord shall have no
responsibility to make any repair until Landlord receives written notice of the
need for such repair. Landlord shall operate and manage the Property and shall
maintain all Common Areas and any paved areas appurtenant to the Property in a
clean and orderly condition. Landlord reserves the right to make alterations to
the Common Areas from time to time. Operating expenses also shall include (A)
all sums expended by Landlord for the supervision, maintenance, repair,
replacement and operation of the Common Areas (including the costs of utility
services), (B) any costs of building improvements made by Landlord to the
Property that are required by any governmental authority or for the purpose of
reducing operating expenses and (C) a management and administrative fee
applicable to the overall operation of the Property.
(iv) Notwithstanding anything herein to the contrary, repairs and replacements
to the Property including the Premises made necessary by Tenant's use, occupancy
or alteration of, or Tenant's installation in or upon the Property or by any act
or omission of Tenant or its Agents shall be made at the sole expense of Tenant
to the extent not covered by any applicable insurance proceeds paid to Landlord.
Tenant shall not bear the expense of any repairs or replacements to the Property
arising out of or caused by any other tenant's use, occupancy or alteration of,
or any other tenant's installation in or upon, the Property or by any act or
omission of any other tenant or any other tenant's Agents.
(e) Utility Charges. Tenant shall pay for water, sewer, gas, electricity, heat,
power, telephone and other communication services and any other utilities
supplied to or consumed in or on the Premises. Landlord shall not be responsible
or liable for any interruption in utility service, nor shall such interruption
affect the continuation or validity of this lease.
(f) Net lease. Except for the obligations of Landlord expressly set forth
herein, this lease is a "triple net lease" and Landlord shall receive the
Minimum Annual Rent as net income from the Premises, not diminished by any
expenses other than payments under any mortgages, and Landlord is not and shall
not be required to render any services of any kind to Tenant. The term "RENT" as
used in this lease means the Minimum Annual Rent, Annual Operating Expenses and
any other additional rent or sums payable by Tenant to Landlord pursuant to this
lease, all of which shall be deemed rent for purposes of Landlord's rights and
remedies with respect thereto. Tenant shall pay all Rent to Landlord within 30
days after Tenant is billed, unless otherwise provided in this lease, and
interest shall accrue on all sums due but unpaid
8. Signs. Except for signs which are located wholly within the interior of the
Premises and not visible from the exterior of the Premises, no signs shall be
placed on the Property without the prior written consent of Landlord. All signs
installed by Tenant shall be maintained by Tenant in good condition and Tenant
shall remove all such signs at the termination of this lease and shall repair
any damage caused by such installation, ex ice or removal.
9. Alterations and Fixtures
(a) Subject to Section 10, Tenant shall have the right to install its trade
fixtures in the Premises, provided that no such installation or removal thereof
shall affect any structural portion of the Property nor any utility lines,
communications lines, equipment or facilities in the Building serving any tenant
other than Tenant. At the expiration or termination of this lease and at the
option of Landlord or Tenant, Tenant shall remove such installations) and, in
the event of such removal, Tenant shall repair any damage caused by such
installation or removal; if Tenant, with Landlords written consent, elects not
to remove such installations) at the expiration or termination of this lease,
all such installations shall remain on the Property and become the property of
Landlord without payment by Landlord
(b) Except for non-structural changes which do not exceed $5000 in the
aggregate, Tenant shall not make or permit to be made any alterations to the
Premises without Landlord's prior written consent. Tenant shall pay the costs of
any required architectural/engineering reviews. In making any alterations, (i)
Tenant shall deliver to landlord the plans, specifications and necessary
permits, together with certificates evidencing that Tenant's contractors and
subcontractors have adequate insurance coverage naming Landlord and Landlord's
agent as additional insureds. at least 10 days prior to commencement thereof,
(ii) such alterations shall not impair the structural strength of the Building
or any other improvements or reduce the value of the Property or affect any
utility lines, communications lines, equipment or facilities in the Building
serving any tenant other than Tenant, (iii) Tenant shall comply with Section 10
and (iv) the occupants of the Building and of any adjoining property shall not
be disturbed thereby. All alterations to the Premises by Tenant shall be the
property of Tenant until the expiration or termination of this lease; at that
time all such alterations shall remain on the Property and become the property
of Landlord without payment by Landlord unless Landlord gives written notice to
Tenant to remove the same, in which event Tenant will remove such alterations
and repair any resulting damage. At Tenant's request prior to Tenant making any
alterations, Landlord shall notify Tenant in writing, whether Tenant is required
to remove such alterations at the expiration or termination of this lease.
10. Mechanics' Liens. Tenant shall pay promptly any contractors and material,
men who supply labor, work or materials to Tenant at the Property and shall take
all steps permitted by law in order to avoid the imposition of any mechanic's
lien upon all or any portion of the Property. Should any such lien or notice of
lien be filed for work performed. for Tenant other than by Landlord, Tenant
shall bond against or discharge the same within 5 days after Tenant has notice
that the lien or claim is filed regardless of the" validity of such lien of
claim. Nothing in this lease is intended to authorize Tenant to do or cause any
work to be done or materials to be supplied for the account of Landlord. all of
the same to be solely for Tenant's account and at Tenant's risk and expense.
Throughout this lease the term "mechanic's lien" is used to include any lien,
encumbrance or charge levied or imposed upon all or any portion of interest in
or income from the Property on account of any mechanic's, laborer's, material,
man's or construction lien or arising out of any debt or liability to or any
claim of any contractor, mechanic, supplier, material, man or laborer and shall
include any mechanic's notice of intention to file a lien given to Landlord or
Tenant, any stop order given to Landlord or Tenant, any notice of refusal to pay
naming Landlord or Tenant and any injunctive or equitable action brought by any
person claiming to be entitled to any mechanic's lien.
11. Landlord's Right of Entry. Tenant shall permit Landlord and its Agents to
enter the Premises at all reasonable times following reasonable notice (except
in the event of an emergency), for the purpose of inspection, maintenance or
making repairs. alterations or additions as well as to exhibit the Premises for
the purpose of sale or mortgage and, during the last 12 months of the Term, to
exhibit the Premises to any prospective tenant. Landlord will make reasonable
efforts not to inconvenience Tenant in exercising the foregoing rights, but
shall not be liable for any loss of occupation or quiet enjoyment thereby
occasioned.
12. Damage by Eire or Other Casualty.
(a) 1f the Premises or Building shall be damaged or destroyed by fire or other
casualty, Tenant promptly shall notify Landlord and Landlord, subject to the
conditions set forth in this Section 12, shall repair such damage and restore
the Premises to substantially the same condition in which they were immediately
prior to such damage or destruction, but not including the repair. restoration
or replacement of the fixtures or alterations installed by Tenant. Landlord
shall notify Tenant in writing, within 30 days after the date of the casualty,
if Landlord anticipates that the restoration will take more than 180 days from
the date of the casualty to complete: in such event, either Landlord or Tenant
may terminate this lease effective as of the date of casualty by giving written
notice to the other within 10 days after Landlord's notice. Further. if a
casualty occurs during the last 12 months of the Term or any extension thereof,
Landlord may cancel this lease unless Tenant has the right to extend the Term
for at least 3 more years and does so within 30 days after the date of the
casualty.
(b) Landlord shall maintain a 12 month rental coverage endorsement or other
comparable form of coverage as part of its fire, extended coverage and special
form insurance. Tenant will receive an abatement of: Minimum Annual Rent and
Annual Operating Expenses to the extent the Premises are rendered untenantable
as determined by the carrier providing the rental coverage endorsement.
13. Condemnation.
(a) Termination. If (i) all of the Premises are taken by a condemnation or
otherwise for any public or quasi-public use, (ii) any part of the Premises is
so taken and the remainder thereof is insufficient for the reasonable operation
oaf Tenant's business or (iii) any of the Property is so taken, and, in
Landlords opinion, it would be impractical or the condemnation proceeds are
insufficient to restore the remainder of the Property, then this lease shall
terminate and all unaccrued obligations hereunder shall cease as of the day
before possession is taken by the condemnor.
(b) Partial Taking. If there is a condemnation and this lease has not been
terminated pursuant to this Section, (i) Landlord shall restore the Building and
the improvements which are a part of the Premises to a condition and size as
nearly comparable as reasonably possible to the condition and size thereof
immediately prior to the date upon which the condemnor took possession and (ii)
the obligations of Landlord and Tenant shall be unaffected by such condemnation,
except that there shall be an equitable abatement of the Minimum Annual Rent
according to the rental value of the Premises before and after the date upon
which the condemnor took possession and/or the date Landlord completes such
restoration.
(c) Award. In the event of a condemnation affecting Tenant. Tenant shall have
the right to make a claim against the condemnor for moving expenses and business
dislocation damages to the extent that such claim does not reduce the sums
otherwise payable by the condemnor to Landlord Except as aforesaid and except as
set forth in (d) below, Tenant hereby assigns all claims against the condemnor
to Landlord
(d) Temporary Taking. No temporary taking of the Premises shall terminate this
lease or give Tenant any right to any rental abatement. Such a temporary taking
will be treated as if Tenant had sublet the Premises to the condemnor and had
assigned the proceeds of the subletting to Landlord to be applied on account of
Tenant's obligations hereunder. Any award for such a temporary taking during the
Term shall be applied first, to Landlord's costs of collection and, second, on
account of sums owing by Tenant. hereunder, and if such amounts applied on
account of sums owing by Tenant hereunder should exceed the entire amount owing
by Tenant for the remainder of the Term, the excess will be paid to Tenant.
14. Non-Abatement of Rent. Except as otherwise expressly provided as to damage
by fire or other casualty in Section 12(b) and as to condemnation in Section
13(b), there shall be no abatement or reduction of the Rent for any cause
whatsoever, and this lease shall not terminate, and Tenant shall not be entitled
to surrender the Premises.
15. Indemnification of Landlord. Subject to Sections 7(c)(iii) and 16, Tenant
will protect, indemnify and hold harmless Landlord and its Agents from and
against any and all claims, actions, damages, liability and expense (including
fees of attorneys, investigators and experts) in connection with loss of life,
personal injury or damage to property in or about the Premises or arising out of
the occupancy or use of the Premises by Tenant or its Agents or occasioned
wholly or in part by any act or omission of Tenant or its Agents, whether prior
to, during or after the Term, except to the extent such loss, injury or damage
was caused by the negligence of Landlord or its Agents. In case any action or
proceeding is brought against Landlord and/or its Agents by reason of the
foregoing, Tenant, at its expense, shall resist and defend such action or
proceeding, or cause the same to be resisted and defended by counsel (reasonably
acceptable to Landlord and its Agents) designated by the insurer whose policy
covers such occurrence or by counsel designated by Tenant and approved by
Landlord and its Agents. Tenant's obligations pursuant to this Section 15 shall
survive the expiration or termination of this lease.
16. Waiver of Claims. Landlord and Tenant each hereby waives all claims for
recovery against the other for any loss or damage which may be inflicted upon
the property of such party even if such loss or damage shall be brought about by
the fault or negligence of the other party or its Agents; provided, however,
that such waiver by Landlord shall not be effective with respect to any
liability of Tenant described in Sections 4(c) and 7(d)(iv).
17. Quiet Enjoyment. Landlord covenants that Tenant, upon performing all of its
covenants, agreements and conditions of this lease, shall have quiet and
peaceful possession of the Premises as against anyone claiming by or through
Landlord, subject, however, to the exceptions, reservations and conditions of
this lease.
18. Assignment and Subletting. (a) Limitation. Tenant shall not transfer this
lease, voluntarily or by operation of law, without the prior written consent of
Landlord which shall not be withheld unreasonably. However, Landlords consent
shall not be required in the event of any transfer by Tenant to an affiliate of
Tenant which is at least as creditworthy as Tenant as of the date of this lease
and provided Tenant delivers to Landlord the instrument described in Section
(c)(iii) below, together with a certification of such creditworthiness by Tenant
and such affiliate. Any transfer not in conformity with this Section 18 shall be
void at the option of Landlord, and Landlord may exercise any or all of its
rights under Section 23. A consent to one transfer shall not be deemed to be a
consent to any subsequent transfer. "Transfer" shall include any sublease,
assignment, license or concession agreement, change in ownership or control of
Tenant, mortgage or hypothecation of this lease or Tenant's s ink therein or in
all or a portion of the Premises.
(b) Offer to Landlord. Tenant acknowledges that the terms of this lease,
including the Minimum Annual Rent, have been based on the understanding that
Tenant physically shall occupy the Premises for the entire Term. Therefore, upon
Tenant's request to transfer all or a portion of the Premises, at the option of
Landlord, Tenant and Landlord shall execute an amendment to this lease removing
such space from the Premises, Tenant shall be relieved of any liability with
respect to such space and Landlord shall have the right to lease such space to
any party, including Tenants proposed transferee.
(c) Conditions. Notwithstanding the above, the following shall apply to any
transfer, with or without Landlords consent:
(i) As of the date of any transfer, Tenant shall not be in default under this
lease nor shall any act or omission have occurred which would constitute a
default with the giving of notice and/or the passage of time. .
(ii) No transfer shall relieve Tenant of its obligation to pay the Rent and to
perform all its other obligations hereunder.
The acceptance of Rent by Landlord from any person shall not be deemed to be a
waiver by Landlord of any provision of this lease or to be a consent to any
transfer.
(iii) Each transfer shall be by a written instrument in form and substance
satisfactory to Landlord which shall (A) include an assumption of liability by
any transferee of all Tenant's obligations and the transferee's ratification of
and agreement to be bound by all the provisions of this lease, (B) afford
Landlord the right of direct action against the transferee pursuant to the same
remedies as are available to Landlord against Tenant and (C) be executed by
Tenant and the transferee.
(iv) Tenant shall pay, within 10 days of receipt of an invoice which shall be no
less than $250, Landlord's reasonable attorneys" fees and costs in connection
with the review, processing and documentation of any transfer for which
Landlords consent is requested
19_ Subordination; Mortgagee's Rights.
(a) This lease shall be subordinate to any first mortgage or other primary
encumbrance now or hereafter affecting the Premises. Although the subordination
is self-operative, within 10 days after written request, Tenant shall execute
and deliver any further instruments confirming such subordination of this lease
and any further instruments of attornment that may be desired by any such
mortgagee or Landlord However, any mortgagee may at any time subordinate its
mortgage to this lease, without Tenant's consent, by giving written notice to
Tenant, and thereupon this lease shall be deemed prior to such mortgage without
regard to their respective dates of execution and delivery-, provided, however,
that such subordination shall not affect any mortgagee's right to condemnation
awards, casualty insurance proceeds, intervening liens or any right which shall
arise between the recording of such mortgage and the execution of this lease.
(b) It is understood and agreed that any mortgagee shall not be liable to Tenant
for any funds paid by Tenant to Landlord unless such funds actually have been
transferred to such mortgagee by Landlord
(c) Notwithstanding the provisions of Sections 12 and 13 above, Landlord's
obligation to restore the Premises after a casualty or condemnation shall be
subject to the consent and prior rights of Landlords first mortgagee.
20. Recording; Tenant's Certificate. Tenant shall not record this lease or a
memorandum thereof without Landlord's prior written consent. Within 10 days
after Landlord's written request from time to time:
(a) Tenant shall execute, acknowledge and deliver to Landlord a written
statement certifying the Commencement Date and Expiration Date of this lease,
that this lease is in full force and effect and has not been modified and
otherwise as set forth in the form of estoppel certificate attached as Exhibit
"D" or with such modifications as may be necessary to reflect accurately the
stated fads and/or such other certifications as r ie requested by a mortgagee or
purchaser. T at understands that its failure to execute such documents may cause
Landlord serious financial damage by causing the failure of a financing or sale
transaction.
(b) Tenant shall furnish to Landlord, Landlord's mortgagee, prospective
mortgagee or purchaser reasonably requested financial information
21. Surrender. Abandoned Property.
(a) Subject to the terms of Sections 9(b), 12(a) and 13(b), at the expiration or
termination of this lease, Tenant promptly shall yield up in the same condition,
order and repair in which they are required to be kept throughout the Term, the
Premises and all improvements thereto, and all fixtures and equipment servicing
the Building, ordinary wear and tear excepted
(b) Upon or prior to the expiration or termination of this lease. Tenant shall
remove any personal property from the Property. Any personal property remaining
thereafter shall be deemed conclusively to have been abandoned, and Landlord, at
Tenant's expense, may remove, store, sell or otherwise dispose of such property
in such manner as Landlord may see fit and/or Landlord may retain such property
as its property. If any part thereof shall be sold, then Landlord may receive
and retain the prods of such sale and apply the same, at its option, against the
expenses of the sale, the cost of moving and storage and any Rent due under this
lease.
(c) If Tenant, or any person claiming through Tenant, shall continue to occupy
the Premises after the expiration or termination of this lease or any renewal
thereof such occupancy shall be deemed to be under a month-to-month tenancy
under the same terms and conditions set forth in this lease, except that the
monthly installment of the Minimum Annual Rent during such continued occupancy
shall be double the amount applicable to the last month of the Term. Anything to
the contrary notwithstanding, any holding over by Tenant without Landlord's
prior written consent shall constitute a default hereunder and shall be subject
to all the remedies available to Landlord.
22. Curing Tenant's Defaults. If Tenant shall be in default in the performance
of any of its obligations hereunder, Landlord, without any obligation to do so,
in addition to any other rights it may have in law or equity, may elect to cure
such default on behalf of Tenant after written notice (except in the case of
emergency) to Tenant. Tenant shall reimburse Landlord upon demand for any sums
paid or costs incurred by Landlord in curing such default, including interest
thereon from the respective dates of Landlord's incurring such costs, which sums
and costs together with interest shall be deemed additional rent.
23. Defaults - Remedies.
(a) Defaults. It shall be an event of default:
(i) If Tenant does not pay in full when due any and all Rent;
(ii) If Tenant fails to observe and perform or otherwise breaches any other
provision of this lease:
(iii) If Tenant abandons the Premises, which shall be conclusively presumed if
the Premises remain unoccupied for more than 10 consecutive days, or removes or
attempts to remove Tenant's goods or property other than in the ordinary course
of business; or
(iv) If Tenant becomes insolvent or bankrupt in any sense or makes a general
assignment for the benefit of creditors or offers a settlement to creditors, or
if a petition in bankruptcy or for reorganization or for an arrangement with
creditors under any federal or state law is filed by or against Tenant, or a
xxxx in equity or other proceeding for the appointment of a receiver for any of
Tenant's assets is commenced, or if any of the real or personal property of
Tenant shall be levied upon; provided, however, that any proceeding brought by
anyone other than Landlord or Tenant under any bankruptcy, insolvency,
receivership or similar law shall not constitute a default until such proceeding
has continued unstayed for more than 60 consecutive days.
(b) Remedies. Then, and in any such event, Landlord shall have the following
rights:
(i) To charge a late payment fee equal to the greater of $100 or 5% of any
amount owed to Landlord pursuant to this lease which is not paid within 5 days
after the due date.
(ii) To enter and repossess the Premises, by breaking open locked doors if
necessary, and remove all persons and all or any property therefrom, by action
at law or otherwise, without being liable for prosecution or damages therefor,
and Landlord may at Landlords option, make alterations -Rd repairs in order to
relet the Premises and --let all or any parts) of the Premises for Tenant's
account. Tenant agrees to pa. ) Landlord on demand any deficiency that n. .
arise by reason of such reletting, In the event of reletting without termination
of this lease, Landlord may at any time thereafter elect to terminate this lease
for such previous breach.
(iii) To accelerate the whole or any part of the Rent for the balance of the
Term, and declare the same to be immediately due and payable
(iv) To terminate this lease and the Tern without any right on the part of
Tenant to save the forfeiture by payment of any sum due or by other performance
of any condition, term or covenant broken.
(c) Grace Period. Notwithstanding anything hereinabove stated, neither party
will exercise any available right because of any default of the other, except
those remedies contained in subsection (b)(i) of this Section, unless such party
shall have first given 10 days written notice thereof to the defaulting party,
and the defaulting party shall have failed to cure the default within such
period; provided, however, that: . (i) No such notice shall be required if
Tenant fails to comply with the provisions of Sections 10 or 20(a), in the case
of emergency as set forth in Section 22 or in the event of any default
enumerated in subsections (a)(iii) and (iv) of this Section (ii) Landlord shall
not be required to give such 10 days notice more than 2 times during any 12
month period (iii) If the default consists of something other than the failure
to pay money which cannot reasonably be cured within I O days, neither party
will exercise any right if the defaulting party begins to cure the default
within the 10 days and continues actively and diligently in good faith to
completely cure said default. (iv) Tenant agrees that any notice given by
Landlord pursuant to this Section which is served in compliance with Section 27
shall be adequate notice for the purpose of Landlords exercise of any available
remedies.
(d) Non-Waiver; Non-Exclusive. No waiver by Landlord of any breach by Tenant
shall be a waiver of any subsequent breach, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach. Efforts
by Landlord to mitigate the damages caused by Tenant's default shall not
constitute a waiver of Landlords right to recover damages hereunder. No right or
remedy herein conferred upon or reserved to Landlord is intended to be exclusive
of any other right or remedy provided herein or by law, but each shall be
cumulative and in addition to every other right or remedy given herein or now or
hereafter existing at law or in equity. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the total amount due Landlord
under this lease shall be deemed to be other than on account, nor shall any
endorsement or statement on any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlords right to recover the balance of Rent due, or Landlord's right to
pursue any other available remedy.
(e) Costs and Attorneys' Fees. If either party commences an action against the
other party arising out of or in connection with this lease, the prevailing
party shall be entitled to have and recover from the losing party attorneys'
fees, costs of suit, investigation expenses and discovery costs, including costs
of appeal.
24. Representations of Tenant. Tenant represents to Landlord and agrees that:
(a) The word "Tenant" as used herein includes the Tenant named above as well as
its successors and assigns, each of which shall be under the same obligations
and liabilities and each of which shall have the same rights, privileges and
powers as it would have possessed had it originally signed this lease as Tenant.
Each and every of the persons named above as Tenant shall be bound jointly and
severally by the terns, covenants and agreements contained herein. However, no
such rights, privileges or powers shall inure to the benefit of any assignee of
Tenant immediate or remote, unless Tenant has complied with the terms of Section
18 and the assignment to such assignee is permitted or has been approved in
writing by Landlord. Any notice required or permitted by the terms of this lease
may be given by or to any one of the persons named above as Tenant, and shall
have the same force and effect as if given by or to all thereof.
(b) If Tenant is a corporation, partnership or any other form of business
association or entity, Tenant is duly formed and in good standing, and has full
corporate or partnership power and authority, as the case may be, to enter into
this lease and has taken all corporate or partnership action, as the case may
be, necessary to carry out the transaction contemplated herein, so that when
executed, this lease constitutes a valid and binding obligation enforceable in
accordance with its terms. Tenant shall provide Landlord with corporate
resolutions or other proof in a form acceptable to Landlord, authorizing the
execution of this lease at the time of such execution.
25. Liability of Landlord. The word "Landlord" as used herein includes the
Landlord named above as well as its successors and assigns, each of which shall
have the same rights, remedies, powers, authorities and privileges as it would
have had it originally signed this lease as Landlord Any such person or entity.
whether or not named herein, shall have no liability hereunder after it ceases
to hold title to the Premises except for obligations already accrued (and, as to
any unapplied portion of Tenant's Security Deposit, Landlord shall be relieved
of all liability therefor upon transfer of such portion to its successor in
interest) and Tenant shall look solely to Landlords successor in interest for
the performance of the covenants and obligations of the Landlord hereunder which
thereafter shall accrue. Neither Landlord nor any principal of Landlord nor any
owner of the Property, whether disclosed or undisclosed, shall have any personal
liability with respect to any of the provisions of this lease or the Premises,
and if Landlord is in breach or default with respect to Landlord's obligations
under this lease or otherwise, Tenant shall look solely to the equity of
Landlord in the Property for the satisfaction of Tenant's claims.
Notwithstanding the foregoing, no mortgagee or ground lessor succeeding to the
interest of Landlord hereunder (either in terms of ownership or possessory
rights) shall be (a) liable for any previous act or omission of a prior
landlord, (b) subject to any rental offsets or defenses against a prior landlord
or (c) bound by any amendment of this lease made without its written consent, or
by payment by Tenant of Minimum Annual Rent in advance in excess of one monthly
installment.
26. Interpretation; Definitions.
(a) Captions. The captions in this lease are for convenience only and are not a
part of this lease and do not in any way define, limit, describe or amplify the
terms and provisions of this lease or the scope or intent thereof. -
(b) Entire Agreement. This lease represents the entire agreement between the
parties hereto and there are no collateral or oral agreements or understandings
between Landlord and Tenant with respect to the Premises or the Property. No
rights, easements or licenses are acquired in the Property or any land adjacent
to the Property by Tenant by implication or otherwise except as expressly set
forth in the provisions of this lease. This lease shall not be modified in any
manner except by an instrument in writing executed by the parties. The masculine
(or neuter) pronoun and the singular number shall include the masculine,
feminine and neuter genders and the singular and plural number. The word
"including" followed by any specific item(s) is deemed to refer to examples
rather than to be words of limitation. Both parties having participated fully
and equally in the negotiation and preparation of this lease, this lease shall
not be more strictly construed, nor any ambiguities in this lease resolved,
against either Landlord or Tenant.
(c) Covenants. Each covenant, agreement, obligation, term, condition or other
provision herein contained shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making the same, not
dependent on any other provision of this lease unless otherwise expressly
provided. All of the terms and conditions set forth in this lease shall apply
throughout the Term unless otherwise expressly set forth herein.
(d) Interest- Wherever interest is required to be paid hereunder, such interest
shall be at the highest rate permitted under law but not in excess of 15% per
annum.
(e) Severability; Governing Law. If any provisions of this lease shall be
declared unenforceable in any respect, such unenforceability shall not affect
any other provision of this lease, and each such provision shall be deemed to be
modified if possible, in such a manner as to render it enforceable and to
preserve to the extent possible the intent of the parties as set forth herein.
This lease shall be construed and enforced in accordance with the laws of the
state in which the Property is located.
(f) "Mortgage" and "Mortgagee." The word "mortgage" as used herein includes any
lien or encumbrance on the Premises or the Property or on any part of or
interest in or appurtenance to any of the foregoing, including without
limitation any ground rent or ground lease if Landlord's interest is or becomes
a leasehold estate. The word "mortgagee" as used herein includes the holder of
any mortgage, including any ground lessor if Landlord's interest is or becomes a
leasehold estate. Wherever any right is given to a mortgagee, that right may be
exercised on behalf of such mortgagee by any representative or servicing agent
of such mortgagee.
(g) "Person." The word "person" is used herein to include a natural person, a
partnership, a corporation. an association and any other form of business
association or entity.
(h) Proportionate Share. At any time or times, upon request of Landlord or of
any tenant of the Building. the method for allocating Tenant's Proportionate
Share of any Impositions, cost, charge, rent, expense or payment then or
thereafter payable shall be redetermined by an independent qualified expert. The
cost of such redetermination shall be borne by the tenants of the Building in
the same proportion as that determined by such expert for reallocation of said
relevant sum: except that if such redetermination is requested by a tenant, the
cost thereof shall be borne entirely by such tenant if the prop made share of
said relevant sum allocable to such tenant as the result of such redetermination
shall not vary by at least 5% from the amount which would have been allocable to
such tenant in accordance with the percentage based on square fogy area
27. Notices. Any notice or other communication under this lease shall be in
writing and addressed to Landlord or Tenant at their respective addresses
specified at the beginning of this lease, except that after the Commencement
Date Tenant's address shall be at the Premises, (or to such other address as
either tray designate by notice to the other) with a copy to any mortgagee or
other party designated by Landlord. Each notice or other communication shall be
deemed given if sent by prepaid overnight delivery service or by certified mail,
return receipt requested, postage prepaid or in any other manner, with delivery
in any case evidenced by a receipt, and shall be deemed received on the day of
actual receipt by the intended recipient or on the business day delivery is
refused The giving of notice by Landlord's attorneys, representatives and agents
under this Section shall be deemed to be the acts of Landlord: however, the
foregoing provisions governing the date on which a notice is deemed to have been
received shall mean and refer to the date on which a party to this lease, and
not its counsel or other recipient to which a copy of the notice may be sent, is
deemed to have received the notice.
28. Security Deposit. At the time of signing this lease, Tenant shall deposit
with Landlord the Security Deposit to be retained by Landlord as cash security
for the faithful performance and observance by Tenant of the provisions of this
lease. Tenant shall not be entitled to any interest whatever on the Security
Deposit Landlord shall have the right to commingle the Security Deposit with its
other funds. Landlord may use the whole or any part of the Security Deposit for
the payment of any amount as to which Tenant is in default hereunder or to
compensate Landlord for any loss or damage it may suffer by reason of Tenant's
default under this lease. If Landlord uses all or any portion of the Security
Deposit as herein provided, within 10 days after written demand therefor, Tenant
shall pay Landlord cash in amount equal to that portion of the Security Deposit
used by Landlord. If Tenant shall comply fully and faithfully with all of the
provisions of this lease, the Security Deposit shall be returned to Tenant after
the Expiration Date and surrender of the Premises to Landlord
IN WITNESS WHEREOF and in consideration of the mutual entry into this lease and
for other good and valuable consideration, and intending to be legally bound.
Landlord and Tenant have executed this lease.
Date signed:
Date signed
At est: Name: Title:
n
Landlord:
LIBERTY PROPERTY LIMITED PARTNERSHIP
By. Liberty Property Trust, Sole General Partner
By:
Tenant:
Name: -1. L: Title: c J . D.
u
By: Name: Title
RIDER
29. Fairgrounds Expenses. If any assessment or other charge for any of the
operating expenses described in Section 7 is attributable to more than the
Property, Tenant's proportionate Share with respect to such expenses shall mean
the ratio of the approximate rentable square feet in the Premises to the
approximate rentable square feet of all the building to which any such expenses
are attributable.
RIDER TO 7(c)(ii) - Liability. Delete the words "a general aggregate limit of
not less than $3,000,000" and insert "a general aggregrate limit of not less
than $2,000,000".
RIDER TO 7(f) - Net lease. This section is deleted in its entirety.
Rider to Section 7 (d) Maintenance:
Landlord, at Landlord's expense, maintain in good order, the fire supply water
system to, and including the sprinkler shut-off valves serving the leased
premises.
EXHIBIT "C"
BUILDING RULES
1. As stated in the lease, Tenant shall not use the Premises as a "place of
public accommodation" as defined in the Americans with Disabilities Act of 1990,
which identifies the following categories into one or more of which a business
must fall to be a "place of public accommodation":
a- Places of lodging (examples hotel, motel)
b. Establishments serving food or drink (examples: bar, restaurant)
c. Places of exhibition or entertainment (examples: motion picture house,
theater, stadium, concert hall)
d. Places of public gathering (examples: auditorium, convention center,
lecture hall)
e. Sales or rental establishments (examples: bakery, grocery store, hardware
store, shopping center)
f. Service establishments (examples: bank laundromat, xxxxxx shop, funeral
parlor, hospital, gas station, business offices such as lawyer, accountant,
healthcare provider or insurance office)
g. Stations used for specified public transportation (examples: bus terminal,
depot)
h. Places of public display or collection (examples: museum, library, gallery)
i. Places of recreation (examples: park, zoo, amusement park)
j. Places of education (examples: nursery, elementary, secondary, private or
other undergraduate or postgraduate school)
k. Social service center establishments (examples: day-care center, senior
citizen center, homeless shelter, food bank, adoption agency)
l. Places of exercise or recreation (examples: gym, health spa, bowling alley,
golf course)
2. Any sidewalks, lobbies, passages and stairways shall not be obstructed or
used by Tenant for any purpose other than ingress and egress from and to the
Premises. Landlord shall in all cases retain the right to control or prevent
access by all persons whose presence, in the judgment of Landlord, shall be
prejudicial to the safety, peace or character of the Property.
3. The toilet rooms, toilets, urinals, sinks, faucets, plumbing or other service
apparatus of any kind shall not be used for any purposes other than those for
which they were installed, and no sweepings, rubbish, rags, ashes, chemicals or
other refuse or injurious substances shall be placed therein or used in
connection therewith or left in any lobbies, passages, elevators or stairways.
4. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
No person shall go on the roof without Landlord's permission.
5. Skylights, windows, doors and transoms shall not be covered or obstructed by
Tenant, and Tenant shall not install any window covering which would affect the
exterior appearance of the Building, except as approved in writing by Landlord.
Tenant shall not remove, without Landlord's prior written consent, any shades,
blinds or curtains in the Premises.
6. Without Landlord's prior written consent, Tenant shall not hang, install,
mount, suspend or attach anything from or to any sprinkler, plumbing, utility or
other lines. If Tenant hangs, installs, mounts, suspends or attaches anything
from or to any doors, windows, walls, floors or ceilings, Tenant shall sparkle
and sand ail holes and repair any damage caused thereby or by the removal
thereof at or prior to the expiration or termination of the lease. If Tenant
elects to seal the floor, Tenant shall seal the entire unfinished floor area
within the Premises. If Tenant elects to paint all or any portion of the
Premises, Tenant, prior to the termination of the lease, shall restore all or
such portion(s) of the Premises to the painted or unpainted condition thereof as
of the Commencement Date.
7.Tenant shall not change any locks nor place additional locks upon any doors
and shall surrender all keys and passes at the end of term.
8. Tenant shall not use nor keep in the Building any matter having an offensive
odor, nor explosive or highly flammable material, nor shall any animals other
than seeing eye dogs in the company of their masters be brought into or kept in
or about the Premises.
9. if Tenant desires to introduce electrical, signalling, telegraphic,
telephonic, protective alarm or other wires, apparatus or devices, Landlord
shall direct where and how the same are to be placed, and except as directed no
installation boring or cutting shall be permitted. Landlord shall have the right
to prevent and to cut off the transmission of excessive or dangerous current of
electricity or annoyances into or through the Building or the Premises and to
require the changing of wiring connections or layout at Tenant's expense, to the
extent that Landlord may deem necessary, and further to require compliance with
such reasonable rules as Landlord may establish relating thereto, and in the
event of non-compliance with the requirements or rules, Landlord shall have the
right immediately to cut wiring or to do what it considers necessary to remove
the danger, annoyance or electrical interference with apparatus in any part of
the Building. All wires installed by Tenant must be clearly tagged at the
distributing boards and junction boxes and elsewhere where required by Landlord,
with the number of the office to which said wires lead, and the purpose for
which the wires respectively are used, together with the name of the concern, if
any, operating same.
10. Tenant shall not place weights anywhere beyond the safe carrying capacity of
the Building,
11. The use of rooms as sleeping quarters is strictly prohibited at all times.
12. Tenant shall have the right, at Tenant's sole risk and responsibility, to
use its proportional share of the parking spaces at the Property as reasonably
determined by Landlord. Tenant shall comply with all "parking regulations
promulgated by Landlord from time to time for the orderly use of the vehicle
parking areas, including without limitation tile following:. Parking shall be
limited to automobiles, passenger or equivalent vans, motorcycles, light four
wheel pickup trucks and (in designated areas) bicycles. No vehicles shall be
left in the parting tot overnight. Parked vehicles shall not be used for vending
or any other business or other activity while parked in the parking areas.
Vehicles shall be parked only in striped parking spaces, except for loading and
unloading, which shall occur solely in zones marked for such purpose, and be so
conducted as to not unreasonably interfere with traffic flow within the Property
or with loading and unloading areas of other tenants. Employee and tenant
vehicles shall not be parked in spaces marked for visitor parking or other
specific use. All vehicles entering or parking in the parking areas shall do so
at owner's sole risk, and Landlord assumes no responsibility for any damage,
destruction, vandalism or theft. Tenant shall cooperate with Landlord in any
measures implemented by Landlord to control abuse of the parking areas,
including without limitation access control programs, tenant and guest vehicle
identification programs, and validated parking programs, provided that no such
validated parking program shall result in Tenant being charged for spaces to
which it has a right to free use under its lease. Each vehicle owner shall
promptly respond to any sounding vehicle alarm or horn, and failure to do so may
result in temporary or permanent exclusion of such vehicle from the parking
areas. Any vehicle which violates the parking regulations may be cited, towed at
the expense of the owner, temporarily or permanently excluded from the parking
areas, or subject to other lawful consequence.
13. If Landlord designates the Building as a non-smoking building and provides
outdoor smoking area(s), Tenant and its Agents shall not smoke in the Building.
14. If at Tenant's request, Landlord consents to Tenant having a dumpster at the
Property, Tenant shall locate the dumpster in the area designated by Landlord
and shall keep and maintain the dumpster clean and painted with lids and doors
in good working order and, at Landlord's request, locked.
15. Tenant shall provide Landlord with a written identification of any vendors
engaged by Tenant to perform services for Tenant at the Premises (examples:
cleaners, security guards/monitors, trash haulers, telecommunications
installers/maintenance).
16. Tenant shall cause all of Tenant's Agents to comply with these Building
Rules.
17. Landlord reserves the right to rescind, suspend or modify any rules or
regulations and to make such other rules and regulations as, in Landlord's
reasonable judgment, may from time to time be needed for the safety, care,
maintenance. operation and cleanliness of the Property. Notice of any action by
Landlord referred to in this paragraph, given to Tenant, shall have the same
force and effect as if originally made a part of the foregoing lease. New rules
or regulations will not, however, be unreasonably inconsistent with the proper
and rightful enjoyment of the Premises by Tenant under the lease.
18. These Building Rules are not intended to give Tenant any rights or claims in
the event that Landlord does not enforce any of them against any other tenants
or if Landlord does not have the right to enforce them against any other tenants
and such nonenforcement will not constitute a waiver as to Tenant.
19. Tenant shall be deemed to have read these Building Rules and to have agreed
to abide by them as a condition to Tenant's occupancy of the Premises.
EXHIBIT "D" TENANT ESTOPPEL CERTIFICATE
Please refer to the documents described in Schedule 1 hero, (the "Lease
Documents") including the "Lease" therein described; all defined terms in this
Certificate shall have the same meanings as set forth in the Lease unless
otherwise expressly set forth herein. The undersigned Tenant hereby certifies
that it is the tenant under the Lease. Tenant hereby further acknowledges that
it has been advised that the Lease may be collaterally assigned in connection
with a proposed financing secured by the Property and/or may be assigned in
connection with a sale of the Property and certifies both to Landlord and to any
and all prospective mortgagees and purchasers of the Property, including any
trustee on behalf of any holders of notes or other similar instruments, any
holders from time to time of such notes or other instruments, and their
respective successors and assigns (the "Mortgagees") that as of the date hereof
1. The information set forth in attached Schedule I is true and correct.
2. Tenant is in occupancy of the Premises and the Lease is in full force and
effect, and, except by such writings as are identified on Schedule 1, has not
been modified, assigned, supplemented or amended since its original execution,
nor are there any other agreements between Landlord and Tenant concerning the
Premises, whether oral or since
3. All conditions and agreements under the Lease to be satisfied or performed by
Landlord have been satisfied and performed
4. Tenant is not in default under the Lease Documents, Tenant has not received
any notice of default under the Lease Documents, and, to Tenant's knowledge,
there are no events which have occurred that, with the giving of notice and/or
the passage of time, would result in a default by Tenant under the Lease
Documents.
5. Tenant has not paid any Rent due under the Lease more than 30 days in advance
of the date due under the Lease and Tenant has no rights of setoff counterclaim,
concession or other rights of diminution of any Rent due and payable under the
Lease except as set forth in Schedule 1.
6. To Tenant's knowledge, there are no uncured defaults on the part of Landlord
under the Lease Documents, Tenant has not sent any notice of default under the
Lease Documents to Landlord, and there are no events which have occurred that,
with the giving of notice and/or the passage of time, would result in a default
by Landlord thereunder, and that at the present time Tenant has no claim against
Landlord under the Lease Documents.
7. Except as expressly set forth in Part G of Schedule 1, there are no
provisions for any, and Tenant has no, options with respect to the Premises or
all or any portion of the Property.
8. Except as set forth on Part M of Schedule 1, no action, voluntary or
involuntary, is pending against Tenant under federal or state bankruptcy or
insolvency law.
9. The undersigned has the authority to execute and deliver this Certificate on
behalf of Tenant and acknowledges that all Mortgagees will rely upon this
Certificate in purchasing the Property or extending credit to Landlord or its
successors in interest.
10. This Certificate shall be binding upon the successors, assigns and
representatives of Tenant and any party claiming through or under Tenant and
shall inure to the benefit of all Mortgagees.
IN WITNESS WHEREOF, Tenant has executed this Certificate this day of , 19
Name of Tenant
By:
Title:
SCHEDULE 1 TO TENANT ESTOPPEL CERTIFICATE
Lease Documents. Lease Terms and Current Status
A. Date of Lease:
B. Parties:
1. Landlord
2. Tenant d/b/a
C Premises known as:
D. Modifications, Assignments, Supplements or Amendments to Lease:
E. Commencement Date:
F. Expiration of Current Term:
G. Options:
H. Security Deposit Paid to Landlord: S
1. Current Fixed Minimum Rent (Annualized): S
J. Current Additional Rent (and if applicable, Percentage Rent)(Annualized): S
x
X. Current Total Rent: $
L_ Square Feet Demised:
M. Tenant's Bankruptcy or other Insolvency Actions:
h:
LEASE TERMINATION AGREEMENT
THIS AGREEMENT is made this 7th day of May, 1998, by and between LIBERTY
PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership ("Landlord")
and OPEN PLAN SYSTEMS, INC., a Virginia corporation ("Tenant"). BACKGROUND:
X. Xxxxxxxxxx and Xxxxxxxxx, Landlord's predecessor, and Tenant entered into a
Lease Agreement dated April 6, 1992, as amended by First Amendment to Lease
dated June 22, 1993 and Second Amendment to Lease dated April 3, 1995 (the
"Lease") covering certain premises located at 0000-00 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, as more fully described in the Lease (the "Premises").
B. Tenant desires to terminate the Lease prior to the Expiration Date set forth
in the Lease and Landlord has agreed to an early termination of the Lease in
accordance with the terms and conditions contained herein. NOW, THEREFORE, the
parties hereto, in consideration of the mutual promises and covenants contained
herein, and intending to be legally bound hereby, agree that the Lease is and
shall be terminated effective as of April 30, 1998 (the "Termination Date")
provided as follows:
1. Tenant shall comply with all the terms and conditions of the Lease through
the Termination Date; thereafter neither party shall have any further rights or
obligations under the Lease other than any obligations of Tenant which by their
terms survive the expiration or earlier termination of the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to be duly
executed under seal as of the day and year first above written.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, Sole General Partner By: Name:
AA 06A
Title:
Witness/Attest:
OPEN PL SYSTEMS INC.
By: 'Name, Title:
