EXHIBIT 10.10
DEED OF LEASE
THIS DEED OF LEASE, dated this 17 day of June, 1997, by and between
Opus East, L.L.C., a Delaware limited liability company, ("Landlord") and
Stanford Telecommunications, Inc., a Delaware corporation ("Tenant").
WITNESSETH:
That Landlord, in consideration of the rents and mutual covenants
hereinafter set forth, does hereby lease, demise and let unto Tenant, and
Tenant does hereby hire and take from Landlord the Premises (as hereinafter
defined) which includes all of the space located in the office building
("Building") to be constructed on the land located in Loudoun County, Virginia
described on Exhibit A attached hereto and incorporated herein by reference.
The Building will be constructed in accordance with the Work Agreement attached
hereto as Exhibit B. The land (including all easement areas appurtenant
thereto) upon which the Building is located is hereinafter referred to as the
"Property"; the Property and the Building are collectively hereinafter referred
to as the "Premises"; and the Premises and all buildings and improvements and
personal property of Landlord used in connection with the operation or
maintenance thereof located therein and thereon and the appurtenant parking
facilities are hereinafter called the "Office Complex."
Tenant hereby accepts this Lease and the Premises upon the covenants
and conditions set forth herein and subject to any encumbrances, covenants,
conditions, restrictions and other matters of record as of the date hereof and
all applicable zoning, municipal, county, state and federal laws, ordinances
and regulations governing and regulating the use of the Premises.
TO HAVE AND TO HOLD THE SAME, for a "term" of approximately ten (10)
years commencing on the earlier to occur of (i) Final Completion of the
Building (as defined in Exhibit B), or (ii) use and occupancy by Tenant of any
portion of the Building, but in no event prior to June 1, 1998, and ending on
the tenth (10) anniversary of the Commencement Date, unless sooner terminated
in the manner provided hereinafter. The date on which the term of the Lease
begins is sometimes hereinafter referred to as the "Commencement Date".
Following the Commencement Date, Landlord shall deliver to Tenant a
Commencement Notice which shall contain the exact Commencement Date, the number
of square feet of net rentable area contained in the Building, and other
reasonably pertinent date. If Tenant disputes the square footage as set forth
in the Commencement Notice, Tenant shall notify Landlord in writing within ten
(10) days of Landlord's delivery of the Commencement Notice. If Landlord and
Tenant are unable to resolve the dispute within twenty (20) days of Landlord's
delivery of the Commencement Notice, a measurement shall be made by a third
party mutually acceptable to Landlord and Tenant using the method specified in
Section 16.31 hereof, and the third party's determination shall govern. Upon
execution of the Commencement Notice by Landlord and Tenant, the Commencement
Notice shall be conclusive and binding on Landlord and Tenant as to all matters
set forth therein.
Notwithstanding anything to the contrary contained in this Lease, in
the event the Commencement Date has not occurred on or before December 1, 1998,
the terms of paragraph A(l)(c) of the Work Agreement shall govern.
ARTICLE I
BASE RENT
Section 1.1 Base Rent. In consideration of the leasing aforesaid,
Tenant agrees to pay to Landlord, at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx, 00000 or at such other place as Landlord from time to time
may designate in writing, annual rental based on the number of square feet of
net rentable area contained in the Building as the same is measured in
accordance with Section 16.31 below multiplied by $14.75 per square foot of net
rentable area for the duration of the first Lease Year. During the second Lease
Year (as hereinafter defined) and each Lease Year thereafter during the term of
this Lease, the Base Rent shall be increased annually by an amount equal to
four percent (4%) of the prior Lease Year's Base Rent.
The aforesaid amount is sometimes hereinafter referred to as the "Base
Rent," and shall be payable monthly, in advance, in equal installments
commencing on the first day of the term and continuing on the first day of each
and every month thereafter for the next succeeding months during the balance of
the term. If the term commences on a date other than the first day of a
calendar month or ends on a date other than the last day of a calendar month,
monthly rent for the first month of the term or the last month of the term, as
the case may be, shall be prorated based upon the ratio that the number of days
in the term within such month bears to the total number of days in such month.
ARTICLE 2
ADDITIONAL RENT
Section 2.1 Additional Rent. In addition to the Base Rent payable by
Tenant under the provisions of Article 1 hereof, Tenant shall pay to Landlord
"Additional Rent" as hereinafter provided for in this Article 2. All sums under
this Article and all other sums and charges required to be paid by Tenant under
the Lease (except Base Rent), however denoted, shall be cleaned to be
"Additional Rent." If any such amounts or charges are not paid at the time
provided in the Lease, they shall nevertheless be collectible as Additional Rent
with the next installment of Base Rent falling due.
Section 2.2 Definitions. For the purposes of this Article 2, the
parties hereto agree upon the following Definitions:
(a) "Days" or days shall mean business days in accordance with local
business and governmental observances, unless otherwise specified herein. "Lease
Year" shall mean each twelve (12) month period commencing with and including the
month during which the term of this Lease commences, and ending with the month
during which the term of this Lease (including any extensions or renewals)
terminates.
(b) "Real Estate Taxes" shall mean and include all personal property
taxes of Landlord relating to Landlord's personal property located in the
Office Complex and used in connection with the operation and maintenance
thereof (however, if the equipment is shared between the Office Complex and
other projects, only the proportionate share of taxes applicable to the Office
Complex shall be included), real estate taxes, water rates and charges, sewer
rates and charges, charges for public utilities, street lighting, excise
levies, licenses, permits, inspection fees, installments of special
assessments, including interest thereon, relating to the Property and Office
Complex, and all other governmental charges, general and special, ordinary and
extraordinary, foreseen as well as unforeseen, of any kind and nature
whatsoever, or other tax, however described, which is levied or assessed in
substitution for any of the foregoing by the United States of America or the
state in which the Office Complex is located or any political subdivision
thereof, against Landlord or all or any part of the Of Office Complex as a
result of Landlord's ownership of the Property or Office Complex, and payable
during the respective Lease Year. It shall not include any net income tax,
estate tax, or inheritance tax. Tenant shall be solely responsible for all Real
Estate Taxes.
(c) In the event Landlord accepts responsibility for the operation and
maintenance of the Office Complex pursuant to Section 5.7 of this Lease, Tenant
shall reimburse Landlord for all Operating Expenses. "Operating Expenses" shall
mean and include all expenses incurred with respect to the maintenance and
operation of the Property and Office Complex as determined by Landlord's
accountant in accordance with generally accepted accounting principles
consistently followed, including, but not limited to, insurance premiums,
maintenance and repair costs, steam, electricity, water, sewer, gas and other
utility charges, fuel, lighting, window washing, janitorial services, trash and
rubbish removal, wages payable to employees of Landlord whose duties are
connected with the operation and maintenance of the Property and Office Complex
(but only for the portion of their time allocable to work related to the
Property and Office Complex), amounts paid to contractors or subcontractors for
work or services performed in connection with the operation and maintenance of
the Property and Office Complex including air quality monitoring and
remediation efforts, all costs of uniforms, supplies and materials used in
connection with the operation and maintenance of the Property and Office
Complex, all payroll taxes, unemployment insurance costs, vacation allowances,
and the cost of providing disability insurance or benefits, pensions, profit
sharing benefits, hospitalization, retirement or other so-called fringe
benefits to employees below the level of building manager (but only for the
portion of their time allocable to work related to the Property and Of Office
Complex), and any other expense imposed on Landlord, its contractors or
subcontractors, pursuant to law or pursuant to any collective bargaining
agreement covering such employees, all services, supplies, repairs,
replacements or other expenses for maintaining and operating the Property and
Office Complex, reasonable attorneys' fees and costs in connection with appeal
or contest of real estate or other taxes or levies, and such other expenses as
may be ordinarily incurred in the operation and maintenance of an of Office
complex in Loudoun County and not specifically set forth herein, including
reasonable management fees. The term "Operating Expenses" shall also include
capital improvements to the Office Complex, and replacements required for
normal maintenance and repair, and expenses incurred by Landlord in connection
with sidewalks adjacent to the Property and any pedestrian walkway system
(either above or below ground) or other public facility required by applicable
law to which Landlord or the Of Office Complex is from time to time subject in
connection with operations of the Property and Office Complex. Tenant shall be
solely responsible for all Operating Expenses.
"Operating Expenses" shall not include Real Estate Taxes, repairs,
restoration or other work occasioned by fire, windstorm or other insured
casualty, or occasioned by condemnation; leasing commissions; legal expenses
incident to enforcement by Landlord of the terms of any existing or potential
lease; interest or principal payments on any mortgage or
other indebtedness of Landlord; payment under any ground lease; compensation
paid to any employee of Landlord at or above the grade of building manager; any
depreciation allowance or expense; capital expenditures required by Landlord's
failure to comply with Legal Requirements (as defined in the Work Agreement);
overtime expenses to Landlord due to Landlord's defaults hereunder; any cost
representing an amount paid for first class services and/or materials to a
related person, firm, or entity to the extent such amount exceeds the amount
that would be paid for such first class services and/or materials at the then
existing market rates to an unrelated person, firm or entity; costs directly
resulting from the gross negligence or misconduct of Landlord, its employees,
agents or contractors; costs or fees relating to the defense of Landlord's title
or interest in the Property; costs and expenses incurred by Landlord in forming,
operating or maintaining the ownership entity for the Premises including legal
fees incurred in connection therewith; or costs or expenses incurred by Landlord
in financing, refinancing, pledging, selling, granting or otherwise transferring
or encumbering ownership rights in the Premises. Any costs incurred by Landlord
in connection with its construction guaranty referenced in the Work Agreement,
or in connection with repairing any latent defects discovered in the Building
during the first twelve (12) months of the term shall also be excluded from
"Operating Expenses". All items contracted for and paid directly by Tenant that
would otherwise be included within the term, Operating Expenses shall be
excluded from such definition. In no event shall the Operating Expenses billed
to Tenant exceed one hundred percent ( 100%) of the costs incurred by Landlord
for same.
Notwithstanding the foregoing provisions of this Section 2.2, prior to
or on the Commencement Date, Tenant shall secure all utilities for the Premises
in Tenant's name and for Tenant's account. During the term of this Lease,
Tenant will pay, when due, all charges of every nature, kind or description for
such utilities furnished to the Premises or chargeable against the Premises,
including all charges for water, sewage, heat, gas, light, garbage,
electricity, telephone, steam, power, or other public or private utility
services. Prior to the Commencement Date, Tenant shall reimburse Landlord for
all utilities or services at the Premises used directly and exclusively by
Tenant or its agents, employees or contractors.
In the event that any charge or fee is required after the Commencement
Date by the state in which the Premises are located, or by any agency,
subdivision, or instrumentality thereof, or by any utility company furnishing
services or utilities to the Premises, as a condition precedent to furnishing
or continuing to furnish utilities or services to the Premises, such charge or
fee shall be deemed to be a utility charge payable by Tenant. The provisions of
this Section 2.2 shall include, but not be limited to, any charges or fees for
present or future water or sewer capacity to serve the Premises, any charges
for the underground installation of gas or other utilities or services, and
other charges relating to the extension of or change in the facilities
necessary to provide the Premises with adequate utility services, but shall
specifically exclude any charges levied to satisfy proffered conditions as set
forth in the proffers applicable to the Office Complex dated August 10, 1988,
and the Summary dated November, 1994, copies of which have been provided to
Tenant. In the event that Landlord has paid any such charge or fee after the
date hereof, Tenant shall reimburse Landlord for such utility charge.
Section 2.3 Applicability of Certain Sections. The following Sections
2.4 through and including Section 2.9 of this Lease shall only be applicable to
those periods of time during which Landlord is responsible for the maintenance
and operation of the Office Complex pursuant to the teens of Section 5.7
hereof.
Section 2.4 Estimated Operating Expenses for Initial Lease Year.
Intentionally Deleted.
Section 2.5 Estimated Expenses. Landlord shall estimate the total
amount of Operating Expenses for the coming twelve (12) month period. Said
estimate shall be in writing and shall be delivered or mailed to Tenant at the
Premises after delivery of the Assumption Certificate referenced in Section 5.7
below.
Section 2.6 Payment of Additional Rent Tenant shall pay, as Additional
Rent, Operating Expenses, so estimated, in equal monthly installments, in
advance, on the first day of each month during each applicable twelve (12)
month period ("Cycle"). If for any reason Landlord has not provided Tenant with
Landlord's estimate of Operating Expenses prior to the commencement of any
Cycle, then Tenant shall continue to pay in accordance with the prior Cycle's
estimate until it receives Landlord's estimate of same. Within thirty (30) days
of receipt of the Operating Expense estimate, Tenant shall pay to Landlord all
amounts due for the then current Cycle, and during the remainder of such Cycle,
Tenant shall pay to Landlord an amount equal to one-twelfth (1/12th) of
Tenant's Expenses as noted on Landlord's estimate.
Section 2.7 Re-estimates of Taxes and Expenses. From time to time
during any applicable Cycle, but not more than one (1) time per Cycle, Landlord
may re-estimate the amount of Operating Expenses, and in such event Landlord
shall notify Tenant, in writing, of such re-estimate in the manner above set
forth and fix monthly installments for the then remaining
balance of such Cycle in an amount sufficient to pay the re-estimated amount
over the balance of such Cycle after giving credit for payments made by Tenant
on the previous estimate.
Section 2.8 Adjustment of Actual Expenses. Upon completion of each
Cycle, Landlord shall cause its accountants to determine the actual amount of
Operating Expenses for such Cycle and deliver a written certification of the
amounts thereof to Tenant within ninety (90) days after the end of each Cycle.
If Tenant has paid less than the actual Operating Expenses for any Cycle,
Tenant shall pay such deficiency within thirty (30) days after receipt of such
statement. If Tenant has paid more than the actual Operating Expenses for any
Cycle, Landlord shall, at Tenant's option, either (a) refund such excess, or
(b) credit such excess against the most current monthly installment or
installments due Landlord for its estimate of Operating Expenses for the next
following Cycle. If Tenant's overpayment is greater than the equivalent of one
month of Operating Expenses, Landlord shall refund the excess to Tenant
together with interest thereon at the Default Rate. A pro rata adjustment shall
be made for a fractional Cycle occurring during the term of this Lease or any
renewal or extension thereof based upon the number of days of the term of this
Lease during said Cycle as compared to three hundred sixty-five (365) days and
all additional sums payable by Tenant or credits due Tenant as a result of the
provisions of this Article 2 shall be adjusted accordingly.
Section 2.9 Tenant Audit Rights. Tenant shall have the right to
examine and audit Landlord's annual statement of Operating Expenses as presented
in Landlord's statement. Tenant shall commence its examination and if
applicable, its audit within forty-five (45) days after receipt of the annual
statement, shall perform its examination and audit with diligence and continuity
and shall complete its examination and audit within one hundred twenty (120)
days after receipt of the annual statement. The cost of any such examination and
audit shall be paid by Tenant, except that, if it is determined on the basis of
such audit (or if, in accordance with the following provisions, it is otherwise
ultimately determined) that the amount of Tenant's obligations for Operating
Expanses for any calendar year was overstated by more than three percent (3%),
then the reasonable cost of the audit shall be paid by Landlord. Landlord shall
refund to Tenant any overpayment for the calendar year in question within thirty
(30) days after the amount of the overpayment has been established by the audit
or as provided in this subsection. If Tenant fails to exercise its right of
audit within the forty-five (45) day period, the amount of Tenant's obligations
for Operating Expenses shall be conclusively established as the amount set forth
in the annual statement delivered by Landlord to Tenant. If, however, Tenant
timely exercises its right of audit, the amount of Tenant's obligations for
Operating Expenses shall be conclusively established as the amount determined as
a result of such audit unless, within sixty (60) days after receipt of a report
of the same from the independent auditors selected by Tenant, Landlord, at its
expense, shall contest the amount thereof, in which event Tenant shall be
entitled to pursue any legal remedies it may have to finally ascertain the
amount thereof and, if appropriate, a refund on account thereof.
Section 2.10 Taxes and Other Additional Rent. Beginning on the
Commencement Date and continuing throughout the Term of the Lease, Tenant shall
be responsible for all Real Estate Taxes. Tenant shall pay all amounts due
within thirty (30) days of receipt of written request and an invoice therefor,
including a copy of the tax xxxx. If by law any special assessment is payable
(without default) in installments (whether or not interest shall accrue on the
unpaid balance of such special assessment), and if Landlord elects to pay same
in installments, Tenant shall pay all amounts due in connection therewith,
together with any interest accrued, in installments within thirty (30) days of
receipt of Landlord's written request and invoice therefor. Landlord shall be
responsible for all installments of special assessments (including interest
accrued on the unpaid balance) which are payable prior to the Commencement Date
and after the termination date of the term of this Lease.
Further, Tenant shall pay, also as Additional Rent, all other sums and
charges required to be paid by Tenant under this Lease, and any tax or excise
on rents, gross receipts tax, or other tax, however described, which is levied
or assessed by the United States of America or the state in which the Office
Complex is located or any political subdivision thereof, against Landlord in
respect to the Base Rent, Additional Rent, or other charges reserved under this
Lease or as a result of Landlord's receipt of such rents or other charges
accruing under this Lease but only to the extent such levy, tax, assessment or
charge on rent shall be expressly in lieu of or in substitution for any
existing Real Estate Taxes; provided, however, Tenant shall have no obligation
to pay net income taxes of Landlord.
Section 2.11 Tenant's Right to Contest Real Estate Taxes. Tenant shall
have the right at its own expense to contest the amount or validity in whole or
in part, of any Real Estate Taxes by appropriate proceedings diligently
conducted in good faith, but only after payment of such Real Estate Taxes,
unless such payment, or a payment thereof under protest, would operate as a bar
to such contest or interfere materially with the prosecution thereof, in which
event, notwithstanding the provisions of Article 2, Tenant may postpone or
defer payment of such Real Estate Taxes if (a) neither the Premises nor any
portion thereof would, by reason of such postponement or deferment, be in
danger of being forfeited or lost, and (b) Tenant shall have deposited with
Landlord cash or a letter of credit payable to Landlord issued by a national
bank or
federal savings and loan association in the amount of the Real Estate Taxes so
contested and unpaid. If, during the continuance of such proceedings, Landlord
shall, from time to time, reasonably deem the amount deposited, as aforesaid,
insufficient, Tenant shall, upon demand of Landlord, make additional deposits
of such additional sums of money or such additional certificates of deposit as
Landlord may reasonably request. Upon failure of Tenant to make such additional
deposits within thirty (30) days, the amount theretofore deposited may be
applied by Landlord to the payment, removal and discharge of such Real Estate
Taxes, and the interest, fines and penalties in connection therewith, and any
reasonable costs, fees (including reasonable attorney's fees) and other
liability (including costs incurred by Landlord, but excluding consequential or
punitive damages) accruing in any such proceedings. Upon the termination of any
such proceedings, Tenant shall pay the amount of such Real Estate Taxes or part
thereof, if any, as finally determined in such proceedings, the payment of
which may have been deferred during the prosecution of such proceedings,
together with any reasonable costs, fees (including reasonable attorney's
fees), interest, penalties, fines and other liability in connection therewith,
and upon such payment Landlord shall return all amounts deposited with it with
respect to the contest of such Real Estate Taxes, as aforesaid, or, at the
written direction of Tenant, Landlord shall make such payment out of the funds
on deposit with Landlord and the balance, if any, shall be resumed to Tenant.
Tenant shall be entitled to the refund of any Real Estate Taxes,
penalty, fine and interest thereon received by Landlord which has been paid by
Tenant or which has been paid by Landlord but for which Landlord has been
previously reimbursed in full by Tenant, such amount to be paid within thirty
(30) days of receipt by Landlord. Landlord shall not be required to join in any
proceedings referred to in this Section 2.11 unless the provisions of any law,
rule or regulation at the time in effect shall require that such proceedings be
brought by or in the name of Landlord, in which event Landlord shall join in
such proceedings or permit the same to be brought in Landlord's name upon
compliance with such conditions as Landlord may reasonably require. Landlord
shall not ultimately be subject to any liability for the payment of any fees,
including attorney's fees, costs and expenses in connection with such
proceedings. Tenant agrees to pay all such fees (including reasonable
attorney's fees), costs and expenses or, on demand, to make reimbursement to
Landlord for such payment. During the time when any such amount is on deposit
with Landlord, and prior to the time when the same is returned to Tenant or
applied against the payment, removal or discharge of Real Estate Taxes, as
above provided, Tenant shall be entitled to receive all interest paid thereon,
if any. Landlord agrees to cooperate with Tenant's efforts in connection with
this Section 2.11, at no cost or expense to Landlord.
Section 2.12 Landlord's Right to Contest Real Estate Taxes. In
addition to the right of Tenant under Section 2.11 to contest the amount or
validity of Real Estate Taxes, Landlord shall also have the right to contest
same; provided however, Landlord shall first give Tenant written notice of such
intention and Tenant shall have twenty (20) days from the date of Landlord's
notice within which to give Landlord written notice that Tenant will contest the
Real Estate Taxes, and to thereafter diligently pursue same. Landlord shall not
be obligated to contest Real Estate Taxes, and any such contest shall be by
appropriate proceedings conducted in the name of Landlord or in the name of
Landlord and Tenant. If Landlord elects to contest the amount or validity, in
whole or in part, of any Real Estate Taxes, such contests by Landlord shall be
at Landlord's expense, provided, however, that if the amounts payable by Tenant
for Real Estate Taxes are reduced (or if a proposed increase in such amounts is
avoided or reduced) by reason of Landlord's contest of Real Estate Taxes, Tenant
shall reimburse Landlord for costs incurred by Landlord in contesting Real
Estate Taxes, but such reimbursements shall not be in excess of the amount saved
by Tenant by reason of Landlord's actions in contesting such Real Estate Taxes.
If Real Estate Taxes are retroactively increased following a contest by
Landlord, Tenant shall not be responsible for such incremental increase.
Section 2.13 Evidence of Payment. Landlord covenants to furnish Tenant
written evidence of the payment of any Real Estate Taxes (i.e. paid tax bills)
for which Tenant has already paid Landlord.
Section 2.14 Escrow for Taxes and Assessments. At Landlord's written
demand after any Event of Default and for as long as such Event of Default is
uncured, Tenant shall pay to Landlord the known yearly Real Estate Taxes
assessments and other impositions payable with respect to the Property and
Office Complex in monthly payments equal to one-twelfth of the known yearly
Real Estate Taxes, assessments and other impositions next payable with respect
to the Property and Office Complex. If the total monthly payments made by
Tenant pursuant to this Section 2.14 shall exceed the amount of payments
necessary for said Real Estate Taxes, such excess shall be credited on
subsequent monthly payments of the same nature or, at Tenant's option, promptly
refunded, but if the total of such monthly payments so made under this
paragraph shall be insufficient to pay such Real Estate Taxes when due, then
Tenant shall pay to Landlord such amount as may be necessary to make up the
deficiency. Payment by Tenant of Real Estate Taxes under this section shall be
considered as performance of such obligation under the provisions of Section
2.14 hereof.
ARTICLE 3
BASE AND ADDITIONAL RENT
Section 3.1 Interest and Late Fee on Past Due Obligations. Any
installment of Base Rent, Additional Rent, or other charges to be paid by
Tenant accruing under the provisions of this Lease which shall not be paid
within ten (10) days of the date when due, shall bear interest at the rate
("Default Rate") of fifteen percent (15%) per annum from the date when the same
is due until the same shall be paid, but if such rate exceeds the maximum
interest rate permitted by law, such rate shall be reduced to the highest rate
allowed by law under the circumstances. In addition, any installments of Base
Rent or Additional Rent or any other charges payable by Tenant under the
provisions hereof which shall not be paid when due and which remain unpaid ten
(10) days thereafter shall be subject to a late payment fee of five percent
(5%) of the unpaid amount.
Section 3.2 Rent Independent. Except as otherwise expressly set forth
herein, Tenant's covenants to pay the Base Rent and the Additional Rent are
independent of any other covenant, condition, provision or agreement herein
contained, and nothing herein contained shall be deemed to suspend or delay the
payment of any amount of money or charge at the time the same becomes due and
payable hereunder, or limit any other remedy of Landlord. Base Rent and
Additional Rent are sometimes collectively referred to as "Rent." Except as
otherwise expressly set forth in this Lease, Rent shall be payable without
deduction, offset, prior notice or demand, in lawful money of the United
States.
Section 3.3 Security Deposit. Intentionally Deleted.
ARTICLE 4
POSSESSION OF PREMISES
Section 4.1 Delayed or Earlier Possession. If Landlord shall be unable
to give possession of the Premises on the date of the commencement of the term
because the construction of the Building has not been sufficiently completed to
make the Premises ready for occupancy or for any other reason, Landlord shall
not be subject to any claims, damages or liabilities for the failure to give
possession on said date except as set forth in the Work Agreement. Under said
circumstances, the rent reserved and Tenant's covenant to pay same shall not
commence until possession of the Premises is given or the Premises are ready
for occupancy, whichever is earlier. Failure to give possession on the date of
commencement of the term shall in no way affect the validity of this Lease or
the obligations of Tenant hereunder, nor shall the same be construed in any way
to extend the expiration date of the term. If Tenant is given and accepts
possession of the Premises or a portion thereof on a date earlier than the date
above specified for commencement of the term the rent reserved herein and all
covenants, agreements and obligations herein and the term of this Lease shall
commence on the date that possession is given to Tenant.
Section 4.2 Effect of Possession. Intentionally Deleted.
Section 4.3 Permitted Use. The Premises shall be occupied and used by
Tenant for general of Office purposes, including, but not limited to, research,
development and testing of communications equipment, and for no other purpose,
subject to the covenants and agreements hereinafter contained. Tenant shall not
use or permit the Premises to be used for any other purpose without the prior
written consent of Landlord.
Section 4.4 Tenant's Compliance With Environmental Laws. Tenant shall
at all times and in all respects comply with all federal, state and local laws,
ordinances and regulations ("Hazardous Materials Laws") relating to the
industrial hygiene, environmental protection or the use, analysis, generation,
manufacture, storage, presence, disposal or transportation of any oil,
petroleum products, flammable explosives, asbestos, urea formaldehyde,
polychlorinated biphenyls, radioactive materials or waste, or other hazardous,
toxic, contaminated or polluting materials, substances or wastes, including
without limitation any "hazardous substances," "hazardous wastes," "hazardous
materials" or "toxic substances" under any such laws, ordinances or regulations
(collectively, "Hazardous Materials"). The foregoing shall not be construed to
prohibit Tenant from storing and using reasonable quantities of customary
office and cleaning supplies in the Building as contemplated by the permitted
use contained in Section 4.3 above.
Tenant shall at its own expense procure, maintain in effect and comply
with all conditions of any and all permits, licenses and other governmental and
regulatory approvals required for Tenant's use of the Premises and Office
Complex including, without limitation, discharge of (appropriately treated)
materials or waste into or through any sanitary sewer system serving the
Premises and Office Complex. Except as discharged into the sanitary sewer in
strict accordance 1and conformity with all applicable Hazardous Materials Laws,
Tenant shall cause any and all Hazardous Materials to be removed from the
Premises and Office Complex and transported solely by duly licensed haulers to
duly licensed facilities for final disposal of such Hazardous Materials and
wastes. Tenant shall in all respects, handle, treat, deal with and manage
any and all Hazardous Materials in, on, under or about the Premises and Office
Complex in complete conformity with all applicable Hazardous Materials Laws and
prudent industry practices regarding the management of such Hazardous
Materials. All reporting obligations to the extent imposed upon Tenant by
Hazardous Materials Laws are solely the responsibility of Tenant. Upon
expiration or earlier termination of this Lease, Tenant shall cause all
Hazardous Materials (except to the extent such Hazardous Materials are
generated, stored, released or disposed of during the term of this Lease by
Landlord) to be removed from the Premises and Of Office Complex and transported
for use, storage or disposal in accordance and in compliance with all
applicable Hazardous Materials Laws. Tenant shall not take any remedial action
in response to the presence of any Hazardous Materials in, on, about or under
the Premises, the Building, the Office Complex or the Property, nor enter into
any settlement agreement, consent, decree or other compromise in respect to any
claims relating to any way connected with the foregoing without first notifying
Landlord of Tenant's intention to do so and affording Landlord ample
opportunity to appear, intervene or otherwise appropriately assert and protect
Landlord's interest with respect thereto. In addition, at Landlord's written
request, at the expiration of the term of this Lease or within sixty (60) days
following the date of such request, whichever is later, Tenant shall remove all
tanks or fixtures which were placed on the Premises and Office Complex during
the term of this Lease and which contain, or are contaminated with, Hazardous
Materials. Tenant shall immediately notify Landlord in writing of(a) any
enforcement, clean-up, removal or other governmental or regulatory action
instituted, completed or threatened pursuant to any Hazardous Materials Laws;
(b) any claim made or threatened by any person against Landlord, or the
Premises or the Office Complex, relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from or claimed to result from
any Hazardous Materials; and (c) any reports made to any environmental agency
arising out of or in connection with any Hazardous Materials in, on or about
the Premises or the Of Office Complex, or with respect to any Hazardous
Materials removed from the Premises or the Office Complex, including, any
complaints, notices, warnings, reports or asserted violations in connection
therewith. Tenant shall also provide to Landlord, as promptly as possible, and
in any event within five (5) business days after Tenant first receives or sends
the same, copies of all claims, reports, complaints, notices, warnings or
asserted violations relating in any way to the Hazardous Materials in or on the
Of Office Complex or Premises. Upon written request of Landlord (to enable
Landlord to defend itself from any claim or charge related to any Hazardous
Materials Law), Tenant shall promptly deliver to Landlord notices of hazardous
waste manifests reflecting the legal and proper disposal of all such Hazardous
Materials removed or to be removed from the Premises or Office Complex. All
such manifests shall list the Tenant or its agent as a responsible party and in
no way shall attribute responsibility for any such Hazardous Materials to
Landlord. Section 4.5 Landlord's Compliance with Environmental Laws. Landlord
covenants not to bring onto the Office Complex or into the Building, or common
areas, any Hazardous Materials, as that term is defined herein. Notwithstanding
the foregoing, Tenant recognizes and acknowledges that Landlord or its agents
may use and store within the Building reasonable quantities of customary office
and cleaning supplies; provided such items are stored, used and disposed of in
accordance with applicable federal, state or local law.
ARTICLE 5
SERVICES AND MAINTENANCE
Section 5.1 Property Management Services. The party responsible for
the maintenance and operation of the Building and Office Complex pursuant to
Section 5.7 hereof shall provide the following services on all days excepting
Saturdays, Sundays, holidays, and as otherwise stated in this Section 5.1:
(a) Janitorial Service. Janitorial and CHAR services for the Building.
(b) Parking Facilities and Landscaped Areas. Maintenance in good
order, condition and repair and appropriate illumination of the parking
facilities and all driveways leading thereto and keeping the same free from any
unreasonable accumulation of snow. Maintenance of the landscaped area and
parking facilities in a neat, safe and orderly condition.
(c) Heating and Air Conditioning. Heating and air conditioning in
amounts and ranges required by Tenant's Plans (as defined in the Work
Agreement) during regular business hours as the same are set by Tenant from
time to time. If Landlord is serving as property manager pursuant to Section
5.7, then (i) except in the case of an emergency, Landlord will give Tenant at
least five (5) business days prior notice if Landlord intends to interrupt any
of the services required to be furnished by Landlord, and (ii) provided Tenant
gives Landlord notice of its need for overtime HVAC service during normal
business hours, Landlord shall provide such service and Tenant shall only be
responsible for the actual utility costs relating to such overtime service.
Section 5.2 Tenant's Utility Services. During the term of this Lease,
Tenant will pay, when due, all charges of every nature, kind or description for
utilities furnished to the Premises including all charges for water, sewage,
heat, gas, light, garbage, electricity, telephone, power or other public or
private utility services. Prior to the Commencement Date, Tenant shall pay for
all
utilities or services at the Premises directly and exclusively used by Tenant
or its agents, employees or contractors.
Section 5.3 Other Provisions Relating to Services. If Landlord is
serving as property manager pursuant to Section 5.7 hereof, (i) except as
specifically provided in this Section 5.3, no interruption in, or temporary
stoppage of, any of the aforesaid services caused by repairs, renewals,
improvements, alterations, strikes, lockouts, labor controversy, accidents,
inability to obtain fuel or supplies, or other Unavoidable Delays shall be
deemed an eviction or disturbance of Tenant's use and possession, or render
Landlord liable for damages, by abatement of rent or otherwise or relieve
Tenant from any obligation herein set forth; (ii) in no event shall Landlord be
required to provide any service in excess of that permitted by involuntary
guidelines or laws, ordinances or regulations of governmental authority; (iii)
Landlord shall have the right, from time to time, to make reasonable and
non-discriminatory modifications to the standards for utilities and services
set forth in this Article 5 upon providing not less than thirty (30) days'
notice to Tenant; and (iv) if utility services to the Premises are interrupted
for more than five (5) consecutive business days for any reason other than
Unavoidable Delay and, as a result thereof, Tenant ceases operating at the
Premises, Rent shall xxxxx on a daily basis beginning on the sixth (6th)
consecutive business day and continuing until services are restored.
Section 5.4 Effects on Utilities. Tenant shall not connect with
electric current or water pipes, except through existing electrical or water
outlets already in the Premises, any apparatus or device for the purposes of
using electric current or water.
Section 5.5 Park Dues. Tenant acknowledges that the Property is part
of a larger development and that certain dues or assessments are owed on a
regular periodic basis for additional services or maintenance pursuant to
covenants, conditions and restrictions of record. Tenant will pay all such dues
attributable to the Property as Additional Rent, or directly, if possible.
Section 5.6 Maintenance. Intentionally Deleted.
Section 5.7 Property Manager. Notwithstanding anything to the contrary
contained herein, Tenant shall be responsible for all property management
functions referenced in this Lease or otherwise required to keep and maintain
the Building and Office Complex in good order and repair consistent with a
first class office building in Loudoun County, Virginia. The maintenance
responsibilities contained in Article 9 of this Lease shall not be deemed
"property management" functions, and Landlord and Tenant shall each be
responsible for their respective obligations as set forth in such Article
without regard to which party is serving as the property manager.
At any time during the Term, Tenant may, by written notice to
Landlord, request that Landlord assume all such property management functions.
If Landlord desires to assume the role of property manager, Landlord shall
respond affirmatively in writing to Tenant within firemen (15) days of receipt
of Tenant's written request, whereupon Landlord shall execute and deliver to
Tenant an Assumption of Property Management Services Certificate ("Assumption
Certificate") prepared by Landlord in form and content reasonably satisfactory
to Tenant. Such assumption shall be effective as of the date specified in the
Assumption Certificate, and shall continue in effect for twelve (12) months,
unless a longer period is agreed to by Landlord and Tenant. Notwithstanding the
foregoing, Landlord's obligation to provide the services and perform the duties
of the property manager shall be subject to Tenant's payment for same pursuant
to Article 2 hereof.
ARTICLE 6
INSURANCE
Section 6.1 Landlord's Casualty Insurance Obligations. Landlord shall
keep the Office Complex insured in an amount equivalent to the full replacement
value thereof (excluding foundation, grading and excavation costs) against:
(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as are
now or may be customarily covered with respect to buildings and improvements
similar in construction, general location, use, occupancy and design to the
Office Complex, including, but without limiting the generality of the
foregoing, windstorms, hail, explosion, vandalism, malicious mischief, civil
commotion, and such other coverage as may be deemed necessary by Landlord
including rental interruption insurance, provided such additional coverage is
obtainable and provided such additional coverage is such as is customarily
carried with respect to buildings and improvements similar in construction,
general location, use, occupancy and design to the Office Complex. The
foregoing insurance shall be on an agreed value basis.
These insurance provisions shall in no way limit or modify any of the
obligations of Tenant under any provision of this Lease. Landlord agrees that
such policy or policies of insurance shall permit releases of liability as
provided herein and/or waiver of subrogation clause in favor of Tenant so long
as such release/waiver is available at a commercially reasonable rate. Subject
to the foregoing, Landlord waives, releases and discharges Tenant from all
claims or demands whatsoever which Landlord may have or acquire arising out of
damage to or destruction of the Of Office Complex or loss of use thereof
occasioned by fire or other casualty, which claim or demand may arise because of
the negligence or fault of Tenant, its agents, employees, customers or business
invitees, or otherwise, and Landlord agrees to look to the insurance coverage
only in the event of such loss. Notwithstanding the foregoing, Tenant shall be
obligated to pay the rental called for hereunder in the event of damage to or
destruction of the Premises or the Of Office Complex if such damage or
destruction is occasioned by the negligence or fault of Tenant, its agents or
employees, such fault to be established by arbitration or a judicial proceeding.
Section 6.2 Tenant's Casualty Insurance Obligations. Tenant shall keep
all of its improvements, betterments, machinery, equipment, furniture, fixtures
and personal property which may be located in, upon, or about the Premises
insured for the benefit of Tenant (and naming Landlord as an additional
insured) in an amount equivalent to the full insurable value thereof against:
(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as are
now, or may in the future be, customarily covered with respect to a tenant's
machinery, equipment, furniture, fixtures, personal property and business
located in a building similar in construction, general location, use, occupancy
and design to the Office Complex, including, but without limiting the
generality of the foregoing, windstorms, hail, explosions, vandalism, theft,
malicious mischief, civil commotion, and such other coverage as Tenant may deem
appropriate or necessary.
Tenant agrees that such policy or policies of insurance shall be on an
agreed value basis, and shall permit release of liability as provided herein
and/or waiver of subrogation clause as to Landlord so long as such
release/waiver is available at a commercially reasonable rate. Subject to the
foregoing, Tenant waives, releases and discharges Landlord, its agents,
employees, and contractors from all claims or demands whatsoever which Tenant
may have or acquire arising out of damage to or destruction of the machinery,
equipment, furniture, fixtures, personal property, and loss of use thereof
occasioned by fire or other casualty, whether such claim or demand may arise
because of the negligence or fault of Landlord, its agents, employees,
contractors or otherwise, and Tenant agrees to look to the insurance coverage
only in the event of such loss.
Section 6.3 Landlord's Liability and Other Insurance Obligations.
Landlord shall maintain, for its benefit and the benefit of Landlord and its
managing agent general public liability insurance against claims for personal
injury, death or property damage occurring upon, in or about the Office
Complex, such insurance to afford protection to Landlord and its managing agent
of a combined single limit of One Million and No/100 Dollars ($1,000,000.00) in
respect to the injury, death or property damage arising out of any accident or
occurrence. In addition, Landlord shall carry employer's liability insurance
with a minimum limit of $500,000 for bodily injury; excess liability insurance
over the public and employer's liability insurance required above with
combined, minimum coverage of $6,000,000; worker's compensation insurance in
statutory limits; and such other insurance coverage or increased amounts of
referenced coverages or deductibles as is customarily carried in respect of
comparable buildings in Loudoun County, Virginia. Landlord agrees to include in
its general public liability insurance policy the contractual liability
coverage insuring Landlord's indemnification obligations provided for herein.
Such insurance shall also afford coverage for all claims based upon acts,
omissions, injury or damage, which claims occurred or arose (or the onset of
which occurred or arose) in whole or in part during the policy period.
At Tenant's request, Landlord shall furnish Tenant with a certificate
of insurance certifying that the insurance coverage required of Landlord
pursuant to this Article 6 is in effect. Any insurance required by the terms of
this Lease to be carried by Landlord may be under a blanket policy (or
policies) covering the other properties of the Landlord and/or its related or
affiliated entities so long as the insurance requirements set forth herein are
satisfied. If such insurance is maintained under a blanket policy, Landlord
shall procure and deliver to Tenant a statement from the insurer or general
agent of the insurer setting forth the coverage maintained and the amounts
thereof allocated to the risks intended to be insured hereunder.
Section 6.4 Tenant's Liability Insurance Obligations. Tenant shall, at
Tenant's sole cost and expense but for the mutual benefit of Landlord, its
managing agent and Tenant, maintain general public liability insurance against
claims for personal injury, death or property damage occurring upon, in or
about the Premises, such insurance to afford protection to Landlord, its
managing agent and Tenant of a combined single limit of One Million and No/100
Dollars
($1,000,000.00) in respect to the injury, death or property damage arising out
of any accident or occurrence in the Office Complex. In addition, Tenant shall
carry employer's liability insurance with a minimum limit of $500,000 for
bodily injury; worker's compensation insurance in statutory limits; and excess
liability insurance over the public and employer's liability insurance required
above with combined, minimum coverage of 6,000,000. Such policies of insurance
shall be written in companies reasonably satisfactory to Landlord, naming
Landlord and its managing agent as additional insureds thereunder (on a primary
and non-contributing basis), and such policies, or a memorandum or certificate
of such insurance, shall be delivered to Landlord with evidence reasonably
satisfactory to Landlord that the premium thereon has been paid. At such time
as insurance limits required of tenants in office buildings in the area in
which the Of Office Complex is located are generally increased to greater
amounts, Landlord shall have the right to require such greater limits as may
then be customary. Tenant agrees to include in such policy the contractual
liability coverage insuring Tenant's indemnification obligations provided for
herein. Any such coverage shall be deemed primary to any liability coverage
secured by Landlord. Such insurance shall also afford coverage for all claims
based upon acts, omissions, injury or damage, which claims occurred or arose
(or the onset of which occurred or arose) in whole or in part during the policy
period.
Section 6.5 Indemnifications. Tenant agrees to indemnify, protect,
defend and hold Landlord and Landlord's shareholders, employees, lender and
managing agent harmless from and against any and all claims, costs,
liabilities, actions, and damages, including, without limitation, attorneys'
fees and costs on behalf of any person or persons, firm or firms, corporation
or corporations, arising from any breach or default on the part of Tenant in
the performance of any covenant or agreement on the part of Tenant to be
performed, pursuant to the terms of this Lease, or arising from any act or
negligence on the part of Tenant or its agents, contractors, servants,
employees or licensees, or arising from any accident, injury or damage to the
extent caused by Tenant, its agents, and employees to any person, firm or
corporation occurring during the term of this Lease or any renewal thereof, in
or about the Premises and Office Complex, and from and against all reasonable
costs, reasonable counsel fees, expenses and liabilities incurred in or about
any such claim or action or proceeding brought thereon; and in case any action
or proceeding be brought against Landlord or its managing agent by reason of
any such claim, Tenant, upon notice from Landlord, covenants to resist or
defend such action or proceeding by counsel reasonably satisfactory to
Landlord. Tenant's indemnification shall not apply to losses, claims, costs and
the like arising as a result of the negligence or willful misconduct of
Landlord or its agents.
Landlord hereby waives all claims against Tenant for damage to any
property or injury to, or death of, any person in, upon, or about the Office
Complex, including the Premises, arising at any time and from any cause other
than by reason of those matters covered by Tenant's indemnity in the preceding
paragraph. Landlord shall, and hereby agrees to, indemnify and hold Tenant
harmless from any damage to any property or injury to, or death of, any person
arising from Landlord's breach of its obligation hereunder, unless the damage
is caused by the negligence or willful misconduct of the Tenant, its employees,
agents, contractors or representatives. Landlord's foregoing indemnity shall
include reasonable attorneys' fees, investigation costs, and all other
reasonable costs and expenses incurred by Tenant in any connection therewith;
and in case any action or proceeding be brought against Tenant or its managing
agent by reason of any such claim, Landlord, upon notice from Tenant, covenants
to resist or defend such action or proceeding by counsel reasonably
satisfactory to Tenant. The provisions of this paragraph shall survive the
termination of this Lease with regard to any occurrence prior to such
termination and any resulting damage, injury, or death. If Tenant is made a
party to any litigation commenced by or against Landlord or relating to this
Lease, and provided that in any such litigation Tenant is not adjudicated in a
court of final appeal to be at fault, then Landlord shall pay all costs and
expenses, including actual, but not unreasonable attorneys' fees and court
costs incurred by or imposed upon Tenant because of any such litigation, and
the amount of all such costs and expenses including actual but not unreasonable
attorneys' fees and court costs shall be a demand obligation owing by Landlord
to Tenant.
Section 6.6 Tenant's Waiver. Except to the extent covered by
Landlord's indemnity in Section 6.5 above, Tenant agrees, to the extent not
expressly prohibited by law, that Landlord, its agents, employees and servants
shall not be liable, and Tenant waives all claims for damage to property and
business sustained during the term of this Lease by Tenant occurring in or
about the Office Complex, resulting directly or indirectly from any existing or
future condition, defect, matter or thing in the Premises, the Office Complex,
or any part thereof, or from equipment or appurtenances becoming out of repair
or from accident, or from any occurrence or act or omission of Landlord, its
agents, employees or servants, or any tenant or occupant of the Building or any
other person. This paragraph shall apply especially but not exclusively, to
damage caused by aforesaid or by the flooding of basements or other subsurface
areas, or by refrigerators, sprinkling devices, air conditioning apparatus,
water, snow, frost, steam, excessive heat or cold, falling plaster, broken
glass, sewage, gas, odors or noise, or the bursting or leaking of pipes or
plumbing fixtures, and shall apply equally, whether any such damage results
from the act or omission of other tenants or occupants in the Office Complex or
any other persons, and whether such damage
be caused by or result from any of the aforesaid, or shall be caused by or
result from other circumstances of a similar or dissimilar nature.
Section 6.7 Landlord's Deductible and Tenant's Property. Provisions
herein to the contrary notwithstanding, in the event any damage to the Office
Complex results directly and exclusively from any act or omission of Tenant,
its agents, employees or invitees, and all or any portion of Landlord's loss is
"deductible," Tenant shall pay to Landlord the amount of such deductible loss
(not to exceed $1,000 per event).
Section 6.8 Tenant's Property. All property in the Office Complex or
on the Premises belonging to Tenant, its agents, employees, invitees or
otherwise located at the Premises, shall be at the risk of Tenant only, and
Landlord, except to the extent covered by Landlord's indemnity in Section 6.5,
shall not be liable for damage thereto or theft, misappropriation or loss
thereof and Tenant agrees to defend and hold Landlord, its agents, employees
and servants harmless and indemnify them against claims and liability for
injuries to such property.
Section 6.9 Payment for Insurance. On an annual basis and within ten
(10) days of demand and presentation of invoices, Tenant shall reimburse
Landlord for the cost of the insurance carried by Landlord pursuant to the
provisions of this Lease. All amounts due from Tenant pursuant to this Section
6.9 shall constitute Additional Rent.
Section 6.10 Tenant's Failure to Insure. In the event Tenant fails to
provide Landlord with evidence of insurance required under this Article 6
within thirty (30) days of Landlord's written request therefor, but in any
event at least ten (10) days prior to the expiration of the existing policy,
Landlord may, but shall not be obligated to, without further demand upon
Tenant, and without waiving or releasing Tenant from any obligation contained
in this Lease, effect such insurance and Tenant agrees to repay, upon demand,
all such sums incurred by Landlord in effecting such insurance. All such sums
shall become a part of the Additional Rent payable hereunder, but no such
payment by Landlord shall relieve Tenant from any default under this Lease.
ARTICLE 7
CERTAIN RIGHTS RESERVED BY LANDLORD
Section 7.1 Rights Reserved by Landlord. Landlord reserves the
following rights without liability to Tenant and without effecting an eviction,
constructive or actual, or disturbance of Tenant's use or possession, or giving
rise to any claim for set off or abatement of rent except as otherwise
expressly set forth herein:
(a) Retain Keys. To retain at all times and to use in appropriate
instances keys to all doors within and into the Premises, except keys or other
devices allowing entry to the "secure areas" designated on the Tenant's Plans,
as such areas may be changed by Tenant from time to time following written
notice to Landlord. No locks shall be changed (except locks in or to the
"secure areas) without the prior written notice to Landlord. This provision
shall not apply to Tenant's safes, or other areas maintained by Tenant for the
safety and security of monies, securities, negotiable instruments, classified
materials or similar items. To the extent reasonably possible, (i) Landlord
shall give Tenant notice prior to entering the Premises, and (ii) Landlord's
entry shall be during normal business hours, and Landlord shall be accompanied
by a representative of Tenant at all times.
(b) Make Repairs. To make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the Office Complex,
or any part thereof, and for such purposes to enter upon the Premises, and
during the continuation of any of said work, to temporarily close doors,
entryways, public spaces, and corridors in the Office Complex and to interrupt
or temporarily suspend services and facilities, so long as Landlord at all
times uses its best commercially reasonable efforts and endeavors in good faith
to limit any interference with the conduct of Tenant's business or its
occupancy and use of the Premises. If, as a result of Landlord's material and
adverse interference, Tenant ceases operating at the Premises for five (5)
consecutive business days, Tenant shall be entitled to an abatement of Rent on
a daily basis beginning on the sixth (6th) consecutive business day and
continuing until the earlier of (i) cessation of such material and adverse
interference, or (ii) the date on which Tenant resumes business operations at
the Premises. If, as a result of Landlord's material and adverse interference,
Tenant ceases operating at the Premises for ninety (90) consecutive business
days, Tenant shall be entitled to terminate the Lease by delivering written
notice to Landlord prior to the one hundredth (100th) consecutive business day
of material and adverse interference. In exercising its right to make repairs,
alterations and the like, to the extent reasonably possible, (i) Landlord shall
give Tenant notice prior to entering the Premises, (ii) Landlord's entry shall
be during normal business hours, and (iii) if required by Tenant, Landlord
shall be accompanied by a representative of Tenant.
(c) Regulate Heavy Equipment. To approve the weight, size and location
of safes and other heavy equipment and articles in and about the Premises and
the Office Complex and to require all such items to be moved into and out of
the Office Complex and the Premises only at such times and in such manner as
Landlord shall direct in writing excluding initial move in and final move out.
Landlord hereby consents to the weight, size and location of equipment shown on
Tenant's Plans.
Section 7.2 Emergency Entry. Landlord and its agents may enter the
Premises at any time in case of emergency and shall have the right to use any
and all means which Landlord may reasonably deem proper to open such doors
during an emergency in order to obtain entry to the Premises, provided Landlord
promptly repairs all damages caused thereto. Any entry to the Premises obtained
by Landlord in the event of an emergency shall not, under any circumstances, be
construed or deemed to be a forcible or unlawful entry into, or detainer of,
the Premises, or to be an eviction of Tenant from the Premises or any portion
thereof. Landlord shall advise Tenant prior to or concurrent with any such
entry so long as Tenant shall have provided Landlord with an emergency call
list.
Section 7.3 Exhibition of Premises. Tenant shall permit Landlord and
its agents, upon not less than twenty four (24) hours' notice, to enter and
pass through the Premises or any part thereof at reasonable times during normal
business hours to: (a) post notices of non-responsibility; (b) exhibit the
Premises to holders of encumbrances on the interest of Landlord under the Lease
and to prospective purchasers or mortgagees of the Office Complex; and (c)
during the period of six (6) months prior to the expiration of the Lease Term,
exhibit the Premises to prospective tenants thereof. Tenant shall be entitled
to provide an escort if Landlord enters the Premises for any of the aforesaid
reasons. In addition, Landlord may post commercially reasonable signage
indicating that the Premises will be available for occupancy. If during the
last month of the Lease Term, Tenant shall have removed substantially all of
Tenant's property and personnel from the Premises, Landlord may, after
obtaining the consent of Tenant and satisfying such reasonable insurance
obligations and indemnification requirements as Tenant may impose, enter the
Premises and repair, alter, and redecorate the same, without abatement of Rent
and without liability to Tenant, and such acts shall have no effect on this
Lease.
Section 7.4 Right of Landlord to Perform. All covenants and agreements
to be performed by Tenant under any of the terms of this Lease shall be
performed by Tenant at Tenant's sole cost and expense and without any abatement
of Rent. If Tenant shall fail to pay any sum of money (other than Rent due
Landlord) required to be paid by it hereunder or shall fail to perform any
other act on its part to be performed hereunder, including; but not limited to,
the failure to commence and complete repairs promptly and adequately, and the
failure to remove any liens or otherwise to perform any act or fulfill any
obligation required of Tenant under this Lease, Landlord may, but shall not be
obligated to, and without waiving or releasing Tenant from any obligations of
Tenant, make any such payment or perform any such act on Tenant's part to be
made or performed as in this Lease provided. All sums so paid by Landlord and
all necessary incidental costs, together with an administrative overhead charge
equal to twenty percent (20%) of the actual costs incurred, shall be payable to
Landlord by Tenant as Rent on demand and Tenant covenants to pay all such sums.
Landlord shall have (in addition to any other right or remedy of Landlord) the
same rights and remedies in the event of Tenant's nonpayment of such sums, as
in the case of default by Tenant in the payment of Rent to Landlord.
Notwithstanding the foregoing, except in the case of an emergency, Landlord
agrees not to perform for Tenant's account until the expiration of all
applicable notice and cure periods referenced in Section 14.1 of this Lease.
ARTICLE 8
ALTERATIONS AND IMPROVEMENTS
Section 8.1 Tenant's Changes and Alterations. Tenant shall have the
right at any time, and from time to time during the term of this Lease, to make
such changes and alterations, structural or otherwise, to the Premises,
improvements and fixtures hereafter erected on the Premises as Tenant shall
deem necessary or desirable in connection with the requirements of its
business, which changes and alterations (other than changes or alterations of
Tenant's movable trade fixtures and equipment) shall be made in all cases
subject to the following conditions, which Tenant covenants to observe and
perform:
(a) Permits. No change or alteration shall be undertaken until Tenant shall
have procured and paid for, so far as the same may be required by the
applicable governmental authorities from time to time, all municipal,
state and federal permits and authorizations of the various governmental
bodies and departments having jurisdiction thereof, and Landlord agrees
to join in the application for such permits or authorizations whenever
such action is necessary, all at Tenant's sole cost and expense.
(b) Compliance with Plans and Specifications. Before commencement of any
change, alteration, restoration or construction (hereinafter sometimes
referred to as "Work") involving in the aggregate an estimated cost of
more than $10,000 or which would materially alter the mechanical or
electrical systems of the Building, Tenant shall (i) furnish Landlord
with
detailed plans and specifications of the proposed change or alteration;
(ii) obtain Landlord's prior written consent, which consent shall not be
unreasonably withheld; (iii) provide Landlord with the name of the
licensed architect or licensed professional engineer selected and paid
for by Tenant, who shall supervise any such work (hereinafter referred to
as "Alterations Architect or Engineer"); and (iv) obtain Landlord's prior
written approval of detailed plans and specifications prepared and
approved in writing by said Alterations Architect or Engineer, and of
each amendment and change thereto.
(c) Value Maintained. Any change or alteration shall, when completed, be of
such character as not to reduce the value of the Premises or the Building
to which such change or alteration is made below its value immediately
before such change or alteration, nor shall such change or alteration
reduce the area or cubic content of the Building, nor change the Building
as to use without Landlord's express written consent. Tenant further
agrees that in no event shall any change or alteration void or impair any
of Landlord's warranties on the Building and, to the extent same are
voided or impaired, Landlord's corresponding warranties to Tenant as
contained in this Lease shall be likewise voided.
(d) Compliance with Laws. All Work done in connection with any change or
alteration shall be done promptly and in a good and workmanlike manner
and in compliance with all building and zoning laws of the place in which
the Premises are situated, and with all laws, ordinances, orders, rules,
regulations and requirements of all federal, state and municipal
governments and appropriate departments, commissions, boards and officers
thereof, and in accordance with the orders, rules and regulations of the
Board of Fire Underwriters where the Premises are located, or any other
body exercising similar functions. The cost of any such change or
alteration shall be paid so that the Premises and all portions thereof
shall at all times be free of liens for labor and materials supplied to
the Premises, or any portion thereof. The Work of any change or
alteration shall be prosecuted with reasonable dispatch, delays due to
strikes, lockouts, acts of God, inability to obtain labor or materials,
governmental restrictions or similar causes beyond the control of Tenant
excepted. Tenant shall obtain and maintain, or cause to be obtained and
maintained, at no expense to Landlord, during the performance of the
Work, workers" compensation insurance in normal and customary amounts,
covering all persons employed in connection with the Work and with
respect to which death or injury claims could be asserted against
Landlord or Tenant or against the Premises or any interest therein.
Tenant shall also cause any contractor performing work on Tenant's behalf
to carry and maintain, at no expense to Landlord, a non-deductible
comprehensive general liability insurance policy, which shall include
contractor's liability coverage, contractual liability coverage,
completed operations coverage, a broad form property damage endorsement
and contractor's protective liability coverage to afford protection with
limits, for each occurrence, of not less than Three Million Dollars
($3,000,000) combined single limit, written on an occurrence basis and
naming Landlord as an additional insured. In addition, the fire insurance
with "extended coverage" endorsement required by Section 6.1 hereof shall
be supplemented with "builder's risk" insurance on a completed value form
or other comparable coverage on the Work.
Tenant agrees that such policy or policies of insurance shall permit release
of liability as provided herein and/or waiver of subrogation clause as to
Landlord so long as such release/waiver is available at a commercially
reasonable rate. Subject to the foregoing, Landlord shall not be liable for any
claims or demands whatsoever relating to the performance of Work in or around
the Premises, and Tenant and its contractors shall look to insurance coverage
only in the event of such loss. All such insurance shall be in a company or
companies authorized to do business in the state in which the Premises are
located and reasonably satisfactory to Landlord, and all such policies of
insurance or, at Tenant's option, certificates of insurance shall be delivered
to Landlord endorsed "Premium Paid" by the company or agency issuing the same,
or with other evidence of payment of the premium satisfactory to Landlord.
(e) Property of Landlord. Unless otherwise designated by Tenant at
the time Landlord's consent is obtained, all improvements and
alterations (other than Tenant's movable trade fixtures and
equipment) made or installed by Tenant shall immediately, upon
completion or installation thereof, become the property of
Landlord without payment therefor by Landlord, and shall be
surrendered to Landlord on the expiration of the term of this
Lease.
(f) Location of Improvements. No change, alteration, restoration or
new construction shall be in or connect the Premises with any
property, building or other improvement located outside the
boundaries of the Land, nor shall the same obstruct or
interfere with any existing easement.
(g) Removal of Improvements. As a condition to granting approval
for any changes or alterations Landlord, by written notice to
Tenant, given at or prior to the time of granting such
approval, may require Tenant to remove any improvements,
additions or installations installed by Tenant in the Premises
at Tenant's sole cost and expense, and repair and restore any
damage caused by the
installation and removal of such improvements, additions, or
installations; provided, however, the only improvements,
additions or installations which Tenant shall remove shall be
those specified in such notice. All improvements, additions or
installations installed by Tenant which did not require
Landlord's prior approval shall be removed by Tenant unless
Tenant has obtained a written waiver of such condition from
Landlord.
(h) Written Notification Required. Tenant shall notify Landlord in
writing ten (10) days prior to commencing any alterations,
additions or improvements to the Premises which have been
approved by Landlord so that Landlord shall have the right to
record and post notices of non-responsibility on the Premises.
(i) Landlord's Approval. Notwithstanding anything to the contrary
contained herein, any alterations, modifications or other
changes to the exterior structure and systems, load bearing
elements, foundations, pipes and conduits and roof that form a
part of the Building shall be subject to Landlord's prior
written consent, such consent not to be unreasonably withheld,
delayed or conditioned.
Section 8.2 Nonstructural Alterations/Without Landlord's Consent.
Notwithstanding the foregoing, Tenant shall have the right from time to time
and at any time, without Landlord's consent, to perform the following work
within the Premises: (i) install, remove and relocate nonstructural office
partitioning provided such work does not materially and adversely affect the
base building structure or HVAC systems, (ii) paint and install wall coverings,
(iii) install and remove office furniture, (iv) relocate electrical outlets,
(v) install and remove workstations, (vi) install and remove Tenant's equipment
and perform cable pulls in connection therewith, and (vii) install and remove
carpeting and other floor coverings.
Section 8.3 Freedom from Liens. Tenant shall not suffer or
permit any mechanic's lien or other lien to be filed against the Office
Complex, or any portion thereof, by reason of work, labor, skill, services,
equipment or materials supplied or claimed to have been supplied to the Of
Office Complex at the request of Tenant, or anyone holding the Premises, or any
portion thereof, through or under Tenant. If any such mechanic's lien or other
lien shall at any time be filed against the Office Complex, or any portion
thereof, Tenant shall cause the same to be discharged of record or satisfied by
bonding within 30 days of the date of filing the same. If Tenant shall fail to
discharge or bond off such mechanic's lien or liens or other lien within such
period, then, in addition to any other right or remedy of Landlord, after five
(5) days prior written notice to Tenant, Landlord may, but shall not be
obligated to, discharge the same by paying to the claimant the amount claimed
to be due or by procuring the discharge of such lien as to the Office Complex
by deposit in the court having jurisdiction of such lien, the foreclosure
thereof or other proceedings with respect thereto, of a cash sum sufficient to
secure the discharge of the same, or by the deposit of a bond or other security
with such court sufficient in form, content and amount to procure the discharge
of such lien, or in such other manner having reasonable cost as is now or may
in the future be provided by present or future law for the discharge of such
lien as a lien against the Of Office Complex. Such amount paid by Landlord, or
the value of such deposit so made by Landlord, together with all reasonable
costs, fees and expenses in connection therewith (including reasonable
attorney's fees of Landlord), together with interest thereon at the Default
Rate, shall be repaid by Tenant to Landlord within thirty (30) days following
demand by Landlord and if unpaid may be treated as Additional Rent. Tenant
shall indemnify and defend Landlord against and save Landlord and the Office
Complex, and any portion thereof, harmless from all losses, costs, damages,
expenses, liabilities, suits, penalties, claims, demands and obligations,
including, without limitation, reasonable attorney's fees resulting from the
assertion, filing, foreclosure or other legal proceedings with respect to any
such mechanic's lien or other lien.
Tenant shall specifically notify all materialmen, contractors,
artisans, mechanics, laborers and any other person now or hereafter furnishing
any labor, services, materials, supplies or equipment to Tenant with respect to
the Office Complex, or any portion thereof, that they must look exclusively to
Tenant to obtain payment for the same, and that Landlord shall not be liable
for any labor, services, materials, supplies, skill, machinery, fixtures or
equipment furnished or to be furnished to Tenant upon credit, and that no
mechanic's lien or other lien for any such labor, services, materials,
supplies, machinery, fixtures or equipment shall attach to or affect the estate
or interest of Landlord in and to the Office Complex, or any portion thereof.
Section 8.4 Landlord's Indemnification. The provisions of Section 8.3
above shall not apply to any mechanic's lien or other lien for labor, services,
materials, supplies, machinery, fixtures or equipment furnished to the Office
Complex in the performance of Landlord's obligations to construct required by
the Work Agreement, and Landlord does hereby agree to indemnify and defend
Tenant against and save Tenant and the Office Complex, and any portion thereof,
harmless from all losses, costs, damages, expenses, liabilities, suits,
penalties, claims, demands and obligations, including, without limitation,
reasonable attorney's fees resulting from the assertion, filing, foreclosure or
other legal proceedings with respect to any such mechanic's lien or other lien.
Section 8.5 Removal of Liens. Except as otherwise provided for in this
Article 8, Tenant shall not create, permit or suffer, and shall promptly
discharge and satisfy of record, any other lien, encumbrance, charge, security
interest, or other right or interest which shall be or become a lien,
encumbrance, charge or security interest upon the Office Complex, or any
portion thereof, or the income therefrom, or on the interest of Landlord or
Tenant in the Office Complex, or any portion thereof, save and except for those
liens, encumbrances, charges, security interests, or other rights or interests
consented to, in writing, by Landlord, or those mortgages, assignments of
rents, assignments of leases and other mortgage documentation placed thereon by
Landlord in financing or refinancing the Office Complex.
ARTICLE 9
REPAIRS
Section 9.1 Tenant's Repair Obligations. Subject to Article 6 hereof,
and except to the extent the responsibility of Landlord pursuant to Section 9.2
below, Tenant shall, during the term of this Lease, at Tenant's expense, keep
the Building and all changes and alterations made by Tenant to the Building
(whether non-structural or structural) in as good order, condition and repair
as they were at the time Tenant took possession of the same, reasonable wear
and tear and damage from fire and other casualties excepted. Tenant shall keep
the Premises in a neat and sanitary condition and shall not commit any nuisance
or waste on the Premises or in, on, or about the Office Complex or throw
foreign substances in the plumbing facilities. All uninsured damage or injury
to the Premises, or to the Office Complex caused by Tenant moving furniture,
fixtures, equipment, or other devices in or out of the Premises or Office
Complex or by installation or removal of furniture, fixtures, equipment,
devices or other property of Tenant, its agents, contractors, servants or
employees, due to carelessness, omission, neglect, improper conduct, or other
cause of Tenant, its servants, employees, agents, visitors, or licensees, shall
be repaired, restored and replaced promptly by Tenant at its sole cost and
expense to the reasonable satisfaction of Landlord. All repairs, restorations
and replacements shall be in quality and class equal to the original work and
shall comply with all requirements of the Lease.
Section 9.2 Landlord's Repair Obligations. Subject to Tenant's
obligations contained in Section 9.1 above, Landlord shall keep the exterior
structure and systems, load bearing elements, foundations, pipes and conduits
and roof that form a part of the Building in good order, condition and repair.
Section 9.3 Joint Inspection Upon Vacation. Tenant shall give written
notice to Landlord at least thirty (30) days prior to vacating the Premises for
the express purpose of arranging a meeting with Landlord for a joint inspection
of the Premises. In the event of Tenant's failure to give such notice and
arrange such joint inspection, Landlord's inspection at or after Tenant's
vacation of the Premises shall be conclusively deemed correct for purposes of
determining Tenant's responsibility for repairs and restoration hereunder.
ARTICLE l0
ASSIGNMENT AND SUBLETTING
Section 10.1 Restriction on Transfer. Tenant shall not sublet the
Premises, or any portion thereof, nor assign, mortgage, pledge, transfer or
otherwise encumber or dispose of this Lease, or any interest therein, or in any
manner assign, mortgage, pledge, transfer or otherwise encumber or dispose of
its interest or estate in the Premises, or any portion thereof, without
obtaining Landlord's prior written consent in each and every instance, which
consent shall not be unreasonably withheld or delayed, provided the following
conditions are complied with:
(a) Any assignment of this Lease (but specifically excluding any sublease)
shall transfer to the assignee all of Tenant's right, title and
interest in this Lease and all of Tenant's estate or interest in the
Premises.
(b) At the time of any assignment or subletting, and at the time when
Tenant requests Landlord's written consent thereto, this Lease must be
in full force and effect, without any breach or default thereunder on
the part of Tenant beyond any applicable notice and cure period.
(c) Any such assignee (but specifically excluding any subleases) shall
assume, by written, recordable instrument, in form and content
reasonably satisfactory to Landlord and such assignee, the due
performance of all of Tenant's obligations under this Lease, an such
assumption agreement shall state that the same is made by the assignee
for the express benefit of Landlord as a third party beneficiary
thereof. A copy of the assignment and assumption agreement, both in
form and content reasonably satisfactory to Landlord, fully executed
and acknowledged by assignee, together with a certified copy of a
properly executed corporate resolution (if the assignee be a
corporation)
authorizing the execution and delivery of such assumption agreement,
shall be sent to Landlord ten (10) days prior to the effective date of
such assignment.
(d) In the case of a subletting, a copy of any sublease fully executed and
acknowledged by Tenant and the subleases shall be mailed to Landlord
within thirty (30) days following the effective date of such
subletting.
(e) Such assignment or subletting shall be subject to all the provisions,
terms, covenants and conditions of this Lease (except, in the case of a
sublease, payment of the Base Rent and Additional Rent due under this
Lease), and Tenant-assignor (and the guarantor or guarantors of this
Lease, if any) and the assignee or assignees shall continue to be and
remain liable under this Lease.
(f) Each sublease permitted under this Section 10.1 shall contain
provisions to the effect that (i) such sublease is only for the use and
occupancy by the subleases and not any other third party; (ii) such
sublease is subject and subordinate to all of the terms, covenants and
conditions of this Lease and to all of the rights of Landlord
thereunder; and (iii) in the event this Lease shall terminate before
the expiration of such sublease, the subleases thereunder will,
provided Landlord and its lender(s) recognizes such sublessee's rights
under the sublease and agrees not to disturb Tenant's occupancy and
possession so long as Tenant is not in default thereunder, attorn to
Landlord and waive any rights the subleases may have to "terminate the
sublease or to surrender possession thereunder, as a result of the
termination of this Lease. Landlord agrees to enter into a
Subordination, Non-Disturbance and Attornment Agreement ("SNDA") with
the subtenants, the substance of which shall be substantially similar
to the SNDA attached as Exhibit C, and Landlord agrees to use its best
commercially reasonable efforts to obtain such an SNDA from Landlord's
Mortgagee(s) (as defined in Section 15.3 hereof) for the benefit of the
subtenants.
(g) Tenant agrees to pay on behalf of Landlord any and all reasonable,
actual out-of-pocket costs of Landlord, including reasonable attorney's
fees actually paid or payable to outside counsel, occasioned by such
assignment or subletting. Landlord agrees to use good faith efforts to
minimize the fees of outside counsel.
For purposes of this Lease, any transfer of less than fifty
percent (50%) in the aggregate of stock, membership interest or
partnership interest in Tenant shall not constitute an assignment.
Tenant may, without Landlord's prior written consent, (a) sublet all or
a portion of the Premises to any related corporation or entity which controls
Tenant, is controlled by Tenant or is under common control with Tenant; or (b)
assign this Lease to a successor corporation into which or with which Tenant is
merged or consolidated or which acquires substantially all of Tenant's assets
and property; provided that (i) in the case of an assignment, such successor
entity assumes all of the obligations and liabilities of Tenant, (ii) in the
case of an assignment or a sublease, such successor entity's net worth
indicates that the entity has similar financial capability as Tenant and the
ability to meet the obligations herein, and (iii) such subletting or assignment
does not violate the terms of any deeds of trust encumbering the Building of
which Tenant has been provided notice.
Section 10.2 Restriction From Further Assignment. Any further
assignment or subleasing shall be governed by the terms of this Article 10. No
assignment or subleasing shall relieve Tenant from any of Tenant's obligations
set forth in this Lease.
Section 10.3 Landlord's Termination Rights. Intentionally Deleted.
Section 10.4 Tenant's Failure to Comply. Tenant's failure to comply
with all of the foregoing provisions and conditions of this Article 10 shall
(whether or not Landlord's consent is required under this Article), at
Landlord's option, render any purported assignment or subletting null and void
and of no force and effect. Notwithstanding the foregoing, in the event
Landlord receives written notice specifically stating that Tenant has failed to
comply with the terms of this Article 10, then if Landlord desires to exercise
its right to render the applicable sublease and/or assignment null and void,
Landlord must do so within sixty (60) days of the date of receipt of such
notice.
Section 10.5 Sharing of Excess Rent. If Landlord consents to Tenant
assigning its interest under this Lease or subletting all or any portion of the
Premises, Tenant shall pay to Landlord (in addition to Rent and all other
amounts payable by Tenant under this Lease) 50% of the rents and other
considerations payable by such assignee or subtenant (net of brokerage
commissions, improvement costs, legal fees and other reasonable costs and
expenses incurred in connection with the assignment or subletting) in excess of
the Rent otherwise payable by Tenant from time to time under this Lease. For
the purposes of this computation, the additional amount payable by Tenant shall
be determined by either (i) application of the rental rate per square foot for
the Building or any portion thereof sublet, or (ii) the fair
market rental rate for rooftop space or other space at the Premises sublet, as
applicable. Said additional amount shall be paid to Landlord immediately upon
receipt by Tenant of such Rent or other considerations from the assignee or
subtenant.
ARTICLE 11
DAMAGE BY FIRE OR OTHER CASUALTY
Section 11.1 Tenantable Within 180 Days. If fire or other casualty
shall render the whole or any material portion of the Premises untenantable,
Landlord shall obtain an estimate for the time required to rebuild from a
reputable licensed contractor, and shall forward the time estimate to Tenant
within thirty (30) days from the date of such damage or destruction. If,
pursuant to the estimate, the Premises can reasonably be expected to be made
tenantable within one hundred eighty (180) days from the date of such event,
then Landlord shall repair and restore the Premises and the Office Complex
within such one hundred eighty (180) day period. In the event of the foregoing,
this Lease shall remain in full force and effect.
Section 11.2 Not Tenantable Within 180 Days. If, pursuant to the time
estimate referenced in Section I I. I above, the Premises cannot reasonably be
expected to be made tenantable within one hundred eighty (180) days from the
date of the casualty event, then Tenant may, by written notice to Landlord
within thirty (30) days from the date of Landlord's time estimate, terminate
this Lease. Tenant's termination notice shall state a termination date which
shall be at least thirty (30) days but no more than sixty (60) days from the
date of the termination notice.
Section 11.3 Damage Occurring at End of Term. Notwithstanding the
terms of Sections 11.l and 11.2 above, in the event the Premises are damaged
during the last twenty-four (24) months of the initial term to the extent of
twenty-five percent (25%) or more of the replacement cost thereof, Landlord or
Tenant may terminate this Lease by giving written notice of such termination to
the other party within sixty (60) days of the date of the casualty. The
termination notice shall specify a termination date at least thirty (30) days
but not more than sixty (60) days after the date of such notice.
Notwithstanding anything to the contrary contained in this Section
11.3, Tenant shall be entitled to nullify Landlord's termination notice by
delivering to Landlord written notice ("Renewal Notice") of Tenant's exercise
of any then outstanding renewal options granted to Tenant pursuant to Section
16.32 of this Lease. The Renewal Notice shall be delivered within thirty (30)
days of the date of Landlord's termination notice.
Section 11.4 Uninsured Casualty. If an uninsured casualty event shall
render any portion of the Premises or any material portion of the Office
Complex untenantable, then so long as Landlord shall have had in effect all
insurance required by the terms of this Lease, Landlord may, by notice to
Tenant, mailed within thirty (30) days from the date of such damages or
destruction, terminate this Lease effective upon a date within thirty (30) days
from the date of such notice.
Section 11.5 Deductible Payments. If the Premises or the Office
Complex is damaged, and such damage is of the type insured against under the
fire and special form property damage insurance required to be maintained by
Landlord hereunder, the cost of repairing said damage up to the amount of the
deductible under said insurance policy shall be paid by Tenant to the extent
the same is reasonable and customary; provided, however, to the extent Tenant
has remised a portion of the Building back to Landlord and Landlord has
consented to same in writing, the deductible amount due from Tenant shall be
reduced proportionately. If the damage is not covered by such insurance
policies and Landlord elects to repair the damage, then Tenant shall pay
Landlord the "deductible amount" (if any) under Landlord's insurance policies,
and, if the damage was directly and exclusively caused by an act or omission of
Tenant, the difference between the actual cost of repair and any insurance
proceeds received by Landlord.
Section 11.6 Landlord's Repair Obligations. If fire or other casualty
shall render the whole or any material part of the Premises untenantable and
neither Landlord nor Tenant terminates this Lease pursuant to its rights
herein, then Landlord shall repair and restore the Premises and the Office
Complex to as near their condition prior to the fire or other casualty as is
reasonably possible with all due diligence and speed and within the applicable
time period required by this Article 11 (subject to delays for causes beyond
Landlord's reasonable control) and the Rent for the period during which the
Premises are untenantable shall be equitably abated (based upon the portion of
the Premises which is untenantable). In no event shall Landlord be obligated to
repair or restore any special equipment or improvements installed by Tenant at
Tenant's expense.
Section 11.7 Rent Apportionment. In the event of a termination of this
Lease pursuant to this Article ll, Rent shall be apportioned on a per diem
basis and paid to the date of the Lease termination.
Section 11.8 Insurance Trustee. If Landlord fails to comply with its
obligation to rebuild the Premises pursuant to this Article ll and Tenant
elects to exercise its self-help rights as set forth in Section 14.7 hereof,
upon receipt of written instructions from Tenant, Landlord shall inform its
insurance company that Tenant has undertaken the rebuilding of the Premises and
all insurance proceeds shall thereafter be placed with an insurance trustee and
disbursed upon terms and conditions similar to those contained in an industry
standard construction loan agreement.
ARTICLE 12
EMINENT DOMAIN
Section 12.1 Tenant's Termination. If the whole of or a substantial
part of the Premises is taken by any public authority under the power of
eminent domain, or taken in any manner for any public or quasi-public use, so
as to render (in Tenant's reasonable judgment) the remaining portion of the
Premises unsuitable for the purposes intended hereunder, then Tenant shall give
Landlord written notice within thirty (30) days of receiving notice of the
taking and the term of this Lease shall cease as of the day possession shall be
taken by such public authority and Landlord shall make a pro rata refund of any
prepaid rent. Subject to Section 12.2, all damages awarded for such taking
under the power of eminent domain or any like proceedings shall belong to and
be the property of Landlord, Tenant hereby assigning to Landlord its interest,
if any, in said award. Further, if all or any material part of the Office
Complex is taken by public authority under the power of eminent domain, or
taken in any manner for any public or quasi-public use, so as to render any
remaining portion of the Premises unsuitable in Tenant's reasonable opinion,
for the purposes intended hereunder, upon delivery of possession to the
condemning authority pursuant to the proceedings, Tenant may, at its option,
terminate this Lease as to the remainder of the Premises by written notice to
Landlord, such notice to be given to Landlord within thirty (30) days after
Tenant receives notice of the taking. Tenant shall not have the right to
terminate this Lease pursuant to the preceding sentences unless the business of
Tenant cannot in Tenant's reasonable judgment be carried on with substantially
the same utility and efficiency in the remainder of the Premises. Any notice of
termination shall specify the date not more than sixty (60) days after the
giving of such notice as the date for such termination.
Section 12.2 Tenant's Participation. Provisions in this Article 12 to
the contrary notwithstanding, Tenant shall have the right to prove in any
condemnation proceedings and to receive any separate award which may be made
for damages to or condemnation of Tenant's movable trade fixtures and equipment
and for moving expenses; provided, however, Tenant shall in no event have any
right to receive any award for its interest in this Lease or for loss of
leasehold. Provisions in this Article 12 to the contrary notwithstanding, in
the event of a partial condemnation of the Office Complex or the Premises and
this Lease is not terminated, Landlord shall, at its sole cost and expense,
promptly restore the Premises and Office Complex to a complete architectural
unit as near as possible to that condition which existed prior to such partial
condemnation and the Base Rent provided for herein during the period from and
after the date of delivery of possession pursuant to such proceedings to the
termination of this Lease shall be reduced to the fair market rent of the
Premises after such taking.
ARTICLE 13
SURRENDER OF PREMISES
Section 13.1 Surrender of Possession. On the last day of the term of
this Lease, or on the sooner termination thereof, Tenant shall peaceably
surrender the Premises in good condition and repair consistent with Tenant's
duty to make repairs as herein provided, reasonable wear and tear and casualty
loss excluded. On or before the last day of the term of this Lease, or the date
of sooner termination thereof, Tenant shall, at its sole cost and expense,
remove all of its property and trade fixtures and equipment from the Premises
which Tenant is required to remove pursuant to the terms of this Lease. All
property not removed within ten (10) days following receipt of notice from
Landlord shall be deemed abandoned. Tenant hereby appoints Landlord its agent
to remove all abandoned property of Tenant from the Premises upon termination
of this Lease and to cause its transportation and storage for Tenant's benefit,
all at the sole cost and risk of Tenant and Landlord shall not be liable for
damage, theft, misappropriation or loss thereof and Landlord shall not be
liable in any manna in respect thereto. Tenant shall pay all reasonable costs
and expenses of such removal, transportation and storage.
Tenant shall reimburse Landlord upon demand for any reasonable
expenses incurred by Landlord with respect to removal, transportation, or
storage of abandoned property and with respect to restoring said Premises to
good order, condition and repair. All alterations, additions and fixtures,
other than those which Tenant may, or is required to, remove pursuant to the
terms of this Lease, shall remain the property of Landlord and shall be
surrendered with the Premises as a part thereof. Tenant shall promptly
surrender all keys for the Premises to Landlord at the place then fixed for the
payment of rent and shall inform Landlord of combinations on any vaults, locks
and safes left on the Premises. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY
CONTAINED HEREIN, IN NO EVENT SHALL TENANT BE LIABLE FOR, OR OTHERWISE BE
OBLIGATED TO PAY, LOST ACTUAL OR POTENTIAL PROFITS OR
ANY OTHER DAMAGES OF A CONSEQUENTIAL, SPECULATIVE, SPECIAL, PUNITIVE OR SIMILAR
NATURE. THE TERMS OF THIS SECTION 13.1 SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS LEASE.
Section 13.2 Tenant Retaining Possession. In the event Tenant remains
in possession of the Premises after expiration of this Lease, and without the
execution of a new lease, but with Landlord's written consent, it shall be
deemed to be occupying the Premises as a tenant from month to month, subject to
all the provisions, conditions and obligations of this Lease insofar as the
same can be applicable to a month-to-month tenancy, except that the Base Rent
shall be 150% of the then current Base Rent for the Premises. In the event
Tenant remains in possession of the Premises after expiration of this Lease and
without the execution of a new lease and without Landlord's written consent,
Tenant shall be deemed to be occupying the Premises without claim of right and
Tenant shall pay a charge for each day of occupancy an amount equal to double
the Base Rent and Additional Rant (on a daily basis) then due under this Lease.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT
SHALL TENANT BE LIABLE FOR, OR OTHERWISE BE OBLIGATED TO PAY, LOST ACTUAL OR
POTENTIAL PROFITS OR ANY OTHER DAMAGES OF A CONSEQUENTIAL, SPECULATIVE,
SPECIAL, PUNITIVE OR SIMILAR NATURE.
ARTICLE 14
DEFAULT OF TENANT
Section 14.1 Events of Default. The occurrence of any one or more of
the following events (in this Article sometimes called "Event of Default")
shall constitute a default and breach of this Lease by Tenant:
(a) If Tenant fails to pay any Base Rent or Additional Rant payable
under this Lease or fails to pay any obligation required to be paid by Tenant
when and as the same shall become due and payable, and such default continues
for a period of ten (10) days after receipt of written notice thereof given by
Landlord to Tenant.
(b) If Tenant fails to perform any of Tenant's nonmonetary obligations
under this Lease for a period of thirty (30) days after receipt of written
notice from Landlord; provided that if more time is required to complete such
performance, Tenant shall not be in default if Tenant commences such
performance within the thirty (30) day period and thereafter diligently pursues
its completion within ninety (90) days. However, Landlord shall not be required
to give such notice if Tenant's failure to perform constitutes a non-curable
breach of this Lease. The notice required by this subsection is intended to
satisfy any and all notice requirements imposed by law on Landlord and is not
in addition to any such requirement.
(c) If Tenant, by operation of law or otherwise, violates the
provisions of Article 10 hereof relating to assignment, sublease, mortgage or
other transfer of Tenant's interest in this Lease or in the Premises and such
violation continues for ten (10) days after written notice from Landlord.
(d) If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease, other than those referred
to in Subparagraphs (a) and (c) of this Section 14.1, and such default will
result in Landlord being subject to criminal liability, and such default shall
continue after written notice thereof given by Landlord to Tenant, and Tenant
fails to thereafter proceed timely and promptly with all due diligence and in
good faith to cure the same and thereafter to prosecute the curing of such
default with all due diligence, it being intended that in connection with a
default which exposes Landlord to criminal liability that Tenant shall proceed
immediately to cure or correct such condition with continuity and with all due
diligence and in good faith.
Section 14.2 Landlord's Remedies. Upon the occurrence of an Event of
Default by Tenant, and at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have, Landlord shall be entitled to the rights and remedies set
forth below.
(a) Termination of Possession. Terminate Tenant's right to possession
of the Premises by exercising self-help or any other lawful means, in which
case the Lease shall terminate and Tenant shall immediately surrender
possession of the Premises to Landlord. In such event, Landlord shall have the
immediate right to reenter and remove all persons and property, and such
property may be removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of Tenant, all without service of notice or resort
to legal process and without being deemed guilty of trespass, or becoming
liable for any loss or damage which may be occasioned thereby, except for
Landlord's gross negligence or willful misconduct. In the event that Landlord
shall elect to so terminate this Lease, then Landlord shall be entitled to
recover from Tenant all damages incurred by Landlord by reason of Tenant's
default, including:
(i) The equivalent of the amount of the Base Rent and
Additional Rent which would be payable under this Lease by Tenant if this Lease
were still in effect, less
(ii) The net proceeds of any commercially reasonable reletting
affected pursuant to the provisions of Section 14.2(e) hereof after deducting
all of Landlord's reasonable expenses in connection with such reletting,
including, without limitation, all repossession costs, brokerage commissions,
legal expenses, reasonable attorneys' fees, alteration costs, and expenses of
preparation of the Premises, or any portion thereof, for such reletting.
Tenant shall pay such current damages in the amount determined
in accordance with the terms of this Section 14.2 as set forth in a written
statement thereof from Landlord to Tenant (hereinafter called the
"Deficiency"), to Landlord in monthly installments on the days on which the
Rent would have been payable under this Lease if this Lease were still in
effect, and Landlord shall be entitled to recover from Tenant each monthly
installment of the Deficiency as the same shall arise.
(b) Damages. At any time after an Event of Default and termination of
this Lease, whether or not Landlord shall have collected any monthly Deficiency
as set forth in Section 14.2, Landlord shall be entitled to recover from
Tenant, in lieu of continuing monthly payments for the Deficiency, and Tenant
shall pay to Landlord, on demand, as and for final damages for Tenant's
default, an amount equal to the difference between the then present worth of
the aggregate of the Base Rent and Additional Rent and any other charges to be
paid by Tenant hereunder for the remainder of the term of this Lease, and the
then present worth of the then aggregate fair and reasonable fair market rent
of the Premises for the same period, net of the costs and expenses referenced
in Section 14.2(a)(ii). In the computation of present worth, a discount rate
equal to the discount rate of the Federal Reserve Bank of New York plus one
percent (1%) shall be employed. If the Premises, or any portion thereof, shall
be relet by Landlord on commercially reasonable terms for the unexpired term of
this Lease, or any part thereof, before presentation of proof of such damages
to any court, commission or tribunal, the amount of Rent reserved upon such
reletting shall, prima facie, be the fair and reasonable fair market rent for
the part or the whole of the Premises so relet during the term of the
reletting. Nothing herein contained or contained in Section 14.2 shall limit or
prejudice the right of Landlord to prove for and obtain, as damages by reason
of such expiration or termination, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
be greater, equal to or less than the amount of the difference referred to
above.
(c) Reentry and Removal. Upon the occurrence of an Event of Default by
Tenant, Landlord shall also have the right, with or without terminating this
Lease, to reenter the Premises to remove all persons and property from the
Premises. Such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant. If Landlord shall elect
to reenter the Premises, Landlord shall not be liable for, and Tenant shall
indemnify and hold Landlord harmless for, damages by reason of such reentry
except for Landlord's gross negligence or willful misconduct.
(d) No Termination; Recovery of Rent. If Landlord does not elect to
terminate this Lease as provided in this Section 14.2, then Landlord may, from
time to time, recover all Rent as it becomes due under this Lease. At any time
thereafter, Landlord may elect to terminate this Lease and to recover damages
to which Landlord is entitled pursuant to this Article 14.
(e) Reletting the Premises. In the event that Landlord should elect to
terminate this Lease, Landlord shall use commercially reasonable efforts to
relet the Premises on commercially reasonable terms, in which event it may
execute any new lease in its own name. Tenant hereunder shall have no right or
authority whatsoever to collect any Rent from such tenant. The proceeds of any
such reletting shall be applied as follows:
(i) First, to the payment of any indebtedness other than Rent
due hereunder from Tenant to Landlord, including but not limited to reasonable
storage charges or reasonable brokerage commissions owing from Tenant to
Landlord as the result of such reletting;
(ii) Second, to the payment of the reasonable costs and
expenses of reletting the Premises, including alterations and repairs which
Landlord, in its sole discretion, reasonably deems necessary in connection with
such re-letting and reasonable attorneys' fees incurred by Landlord in
connection with the retaking of the said Premises and such reletting;
(iii) Third, to the payment of Rent and other charges due and
unpaid hereunder, and
(iv) under this Lease.
Fourth, to the payment of future Rent and other damages payable by
Tenant
The parties hereto shall, and they hereby do, waive trial by
jury in any action, proceeding, or counterclaim brought by either of the
parties hereto against the other on any matters
whatsoever arising out of, or in any way connected with, this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises
and/or Of Office Complex, and/or claim or injury or damage. In the event
Landlord commences any proceeding to enforce this Lease or the Landlord/Tenant
relationship between the parties or for nonpayment of Rent (of any nature
whatsoever) or additional monies due Landlord from Tenant under this Lease,
Tenant will not interpose any counterclaim of whatever nature or description in
any such proceedings. In the event Tenant must, because of applicable court
rules, interpose any counterclaim or other claim against Landlord in such
proceedings, Landlord and Tenant covenant and agree that, in addition to any
other lawful remedy of Landlord, upon motion of Landlord, such counterclaim or
other claim asserted by Landlord shall be severed out of the proceeding
instituted by Landlord (and, if necessary, transferred to a court of different
jurisdiction), and the proceedings, instituted by Landlord may proceed to final
judgment separately and apart from and without consolidation with or reference
to the status of each counterclaim or any other claim asserted by Tenant.
Section 14.3 Written Notice of Termination Required. Landlord shall
not be deemed to have terminated this Lease and the Tenant's right to
possession of the leasehold or the liability of Tenant to pay Rent thereafter
to accrue or its liability for damages under any of the provisions hereof,
unless Landlord shall have notified Tenant in writing that it has so elected to
terminate this Lease. Tenant covenants that the service by Landlord of any
notice pursuant to the applicable unlawful detainer statutes of the state in
which the Office Complex is located and the Tenant's surrender of possession
pursuant to such notice shall not (unless Landlord elects to the contrary at
the time of, or at any time subsequent to the service of, such notice, and such
election be evidenced by a written notice to Tenant) be deemed to be a
termination of this Lease or of Tenant's right to possession thereof.
Section 14.4 Remedies Cumulative; No Waiver. All rights, options and
remedies of Landlord contained in this Lease shall be construed and held to be
cumulative, and no one of them shall be exclusive of the other, and Landlord
shall have the right to pursue any one or all of such remedies or any other
remedy or relief which may be provided at law or in equity whether or not
stated in this Lease, including, without limitation, the right of self help,
but subject to all applicable provisions of this Lease.
No waiver by Landlord or Tenant ("Waiving Party") of a breach of any
of the terms, covenants or conditions of this Lease by the other party
("Breaching Party") shall be construed or held to be a waiver of any succeeding
or preceding breach of the same or any other term, covenant or condition
therein contained. No waiver of any default of the Breaching Party hereunder
shall be implied from any omission by the Waiving Party to take any action on
account of such default if such default persists or is repeated, and no express
waiver shall affect default other than as specified in said waiver. The consent
or approval by the Waiving Party to or of any act by the Breaching Party
requiring the Waiving Party's consent or approval shall not be deemed to waive
or render unnecessary the Waiving Party's consent to or approval of any
subsequent similar acts by the Breaching Party.
Section 14.5 Legal Costs. Tenant shall reimburse Landlord, upon
demand, for any costs or expenses incurred by Landlord in connection with any
Event of Default of Tenant under this Lease, whether or not suit is commenced
or judgment entered. Such costs shall include reasonable legal fees and costs
incurred for the negotiation of a settlement, enforcement of rights or
otherwise. Furthermore, if any action for an Event of Default to enforce the
provisions of this Lease is commenced, the court in such action shall award to
the party in whose favor a judgment is entered a reasonable sum as attorneys'
fees and costs. Such attorneys' fees and costs shall be paid by the losing
party in such action at such time as it is no longer subject to appeal. Tenant
shall also indemnify Landlord against and hold Landlord harmless from all
costs, expenses, demands and liability incurred by Landlord if Landlord becomes
or is made a party to any claim or action (a) instituted by Tenant, or by any
third party against Tenant; (b) for foreclosure of any lien for labor or
material furnished to or for Tenant or such other person; (c) otherwise arising
out of or resulting from any act or transaction of Tenant or such other person;
or (d) necessary to protect Landlord's interest under this Lease in a
bankruptcy proceeding, or other proceeding under Title 11 of the United States
Code, as amended. Tenant shall defend Landlord against any such claim or action
at Tenant's expense with counsel reasonably acceptable to Landlord or, at
Landlord's election, Tenant shall reimburse Landlord for any reasonable legal
fees or costs incurred by Landlord in any such claim or action.
In addition, Tenant shall pay Landlord's reasonable attorneys' fees
incurred in connection with Tenant's request for Landlord's consent in
connection with any act which Tenant proposes to do and which requires
Landlord's consent.
Section 14.6 Waiver of Damages for Reentry. Intentionally Deleted.
Section 14.7 Tenant Self-Help. Tenant may provide Landlord written
notice if Landlord fails to (i) comply with any of its repair and maintenance
obligations under this Lease, or (ii) comply with its obligations to provide
services under the terms of this Lease, both subject to Unavoidable Delay (as
defined in the Work Agreement). Tenant's written notice shall specify the
action required to be taken, demand that Landlord proceed with such action, and
indicate that Tenant may perform on Landlord's behalf if Landlord fails to
timely respond. Landlord shall, within seven (7) days after receipt of such
notice (or immediately after receipt of such notice if Landlord's failure to
comply with its Lease obligations gives rise to an emergency), commence
investigation of the cause of the asserted problem. Landlord shall promptly
commence such repair or replacement, or other action, and diligently pursue
completion thereof. In the event that (x) Landlord fails to respond to Tenant's
notice within the foregoing seven (7) day period, or (y) fails to promptly
commence, diligently pursue and ultimately complete same within thirty (30)
days of commencement (or such shorter or longer period of time as is
commercially reasonable under the circumstances) any action set forth in
clauses (i) and (ii) above, then, if the repair, replacement or other action
required to be taken does not affect the structure of the Building and does not
affect the mechanical, electrical, plumbing or other base building systems
then, upon written notice to Landlord, Tenant shall have the right to effect
such repair or replacement, or pursue such other action as may reasonably be
necessary in order to correct the condition; provided, however, in no event
shall Landlord be liable for consequential or punitive damages. Landlord shall
reimburse Tenant on demand for all of the reasonable costs and expenses
incurred by Tenant in connection with such foregoing remedial activities plus
an administrative overhead charge equal to twenty percent (20%) of the actual
cost of repair. Any repair, replacement or other work performed by Tenant shall
be performed in a good and workmanlike manner and in strict compliance with any
Federal, state, local and municipal laws, rules, regulations and ordinances,
and shall be performed by licensed and bonded contractors carrying customary
insurance coverage, which insurance shall include Landlord as an additional
insured. Notwithstanding anything to the contrary contained herein, no payment
by Tenant shall be construed as a waiver of a default by Landlord under this
Section 14.7.
ARTICLE 15
SUBORDINATION/ESTOPPEL
Section 15.1 Lease Subordinate. This Lease shall be subject and
subordinate to any mortgage, deed of trust or ground lease now encumbering the
Premises, the Office Complex, the Property, or any portion thereof by Landlord,
its successors or assigns. The foregoing subordination shall be effective
without the necessity of the execution and delivery of any further instruments
on the part of Tenant to effectuate such subordination. Provided Tenant
receives a non-disturbance agreement substantially in the form attached hereto
as Exhibit C, this Lease shall be further subject and subordinate to any future
mortgages, deeds of trust or ground leases and any amendments, replacements,
renewals and extensions thereof. Tenant agrees at any time hereafter, within
fifteen (15) days following demand, to execute and deliver any instruments,
releases, or other documents that may be reasonably required for the purpose of
subjecting and subordinating this Lease, as above provided, to the lien of any
such mortgage, deed of trust or ground lease, provided such documents shall be
reasonably acceptable to Tenant. It is agreed, nevertheless, that as long as
Tenant is not in default in the payment of Base Rent, Additional Rent, and the
payment of other charges to be paid by Tenant under this Lease, and the
performance of all covenants, agreements and conditions to be performed by
Tenant under this Lease beyond any applicable notice and cure period, then
neither Tenant's right to quiet enjoyment under this Lease, nor the right of
Tenant to continue to occupy the Premises and to conduct its business thereon,
in accordance with the terms of this Lease as against any Landlord, mortgagee,
trustee, or their successors or assigns shall be interfered with.
Section 15.2 Attornment. Subject to the terms of this Article 15, in
the event the holder of any mortgage, deed of trust or ground lease shall at
any time elect to have this Lease constitute a prior and superior lien to its
mortgage, deed of trust or ground lease, then, and in such event, upon any such
holder or landlord notifying Tenant to that effect in writing, this Lease shall
be deemed prior and superior in lien to such mortgage, deed of trust, ground
lease, whether this Lease is dated prior or subsequent to the date of such
mortgage, deed of trust or ground lease and Tenant shall execute such
attornment agreement as may be reasonably requested by said holder or landlord,
provided the form and content thereof are reasonably acceptable to Tenant and
contain recognition and non-disturbance covenants satisfactory to Tenant.
Section 15.3 Tenant's Notice of Default. Tenant agrees, provided the
mortgagee, ground landlord or trust deed holder under any mortgage, ground
lease, deed of trust or other security instrument ("Mortgagee") shall have
notified Tenant in writing (by the way of a notice of assignment of lease or
otherwise) of its address, Tenant shall give such Mortgagee, simultaneously
with delivery of notice to Landlord, by registered or certified mail, a copy of
any such notice of default served upon Landlord. Tenant further agrees that
said Mortgagee shall have the right to cure any alleged default during the same
period that Landlord has to cure such default.
Section 15.4 Estoppel Certificates. Landlord and Tenant shall, each
without charge at any time and from time to time, within fifteen (15) days
after written request by the other party, but not
more frequently than two (2) times in any twelve month period, certify, to the
extent true, by written instrument, duly executed, acknowledged and delivered
to any mortgagee, assignee of a mortgagee, proposed mortgagee, or to any
purchaser or proposed purchaser, or to any other person transacting business
with Landlord or Tenant and relating to the Premises:
(a) That this Lease (and all guaranties, if any) is unmodified and in
full force and effect (or, if there have been modifications, that the same is
in full force and effect, as modified, and stating the modifications);
(b) The dates to which the Base Rent or Additional Rent have been paid
in advance;
(c) Whether or not there are then existing any breaches or defaults by
such party or the other party known by such party under any of the covenants,
conditions, provisions, terms or agreements of this Lease, and specifying such
breach or default, if any, or any setoffs or defenses against the enforcement
of any covenant, condition, provision, term or agreement of this Lease (or of
any guaranties) upon the part of Landlord or Tenant (or any guarantor), as the
case may be, to be performed or complied with (and, if so, specifying the same
and the steps being taken to remedy the same); and
(d) Such other statements or certificates as Landlord, Tenant or any
mortgagee may reasonably request.
It is the intention of the parties hereto that any statement delivered
pursuant to this Section may be relied upon by any of such parties transacting
business with Landlord or Tenant and relating to the Premises. If Landlord or
Tenant does not deliver such statement to the requesting party within such
fifteen (15) day period, and such failure continues for five (5) additional
days following receipt of a second notice stipulating that such continuing
failure shall have the consequences set forth herein, the requesting party, and
any applicable party transacting business relative to the Premises with the
requesting party, may conclusively presume and rely upon the following facts:
(i) that the terms and provisions of this Lease have not been changed except as
otherwise represented by the requesting party; (ii) that this Lease has not
been canceled or terminated and is in full force and effect, except as
otherwise represented by the requesting party; that the current amount of the
Base Rent is as represented by the requesting party; that there have been no
subleases or assignments of the Lease; (iii) that not more than one month's
Base Rent or other charges have been paid in advance; and (iv) that the
requesting party is not in default under the Lease. In such event, the
non-requesting party shall be estopped from denying the truth of such facts.
ARTICLE 16
MISCELLANEOUS
Section 16.1 Time is of the Essence. Time is of the essence with
respect to the performance of every provision of this Lease in which time of
performance is a factor.
Section 16.2 Memorandum of Lease. Upon not less than ten (10) days
prior written request by either party, the parties hereto agree to execute and
deliver to each other a Memorandum Lease, in recordable form, setting forth the
following:
(a) The date of this Lease;
(b) The parties to this Lease;
(c) The term of this Lease;
(d) The legal description of the Premises; and
(e) Such other matters reasonably requested by Landlord or Tenant
to be stated therein.
The cost of recording the memorandum and all taxes related thereto
shall be at the expense of the requesting party. Upon the expiration or earlier
termination of this Lease, or upon the termination of Tenant's right to
possession of the Premises, Tenant shall execute and deliver to Landlord within
ten (10) days after receipt of Landlord's written request therefor, a
termination of such memorandum of lease. In the event Tenant fails to deliver
such termination of the memorandum of lease to Landlord upon the expiration of
such ten (10) day period, Landlord shall be permitted to execute and record
such termination, and Tenant hereby appoints Landlord as its attorney-in-fact
to execute such termination on behalf of Tenant. The terms and conditions of
this Section 16.2 shall survive the expiration or early termination of this
Lease.
Section 16.3 Joint and Several Liability. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant.
Section 16.4 Broker. Landlord and Tenant represent to each other that
they have not dealt with any brokers in connection with this Lease except
Xxxxxx X. Xxxxxxx, inc. and The Xxxxxxx X.
Xxxxx Companies, who will be paid by Landlord pursuant to a separate agreement.
Landlord and Tenant shall indemnify and hold each other harmless against any
claims for brokerage or other commissions arising by reason of a breach of the
aforesaid representation and warranty .
Section 16.5 Notices. All notices, demands and requests shall be in
writing, and shall be effectively served by forwarding such notice, demand or
request by certified or registered mail, postage prepaid, or by commercial
overnight courier service, or by hand delivery with signed receipts, addressed
as follows:
(a) If addressed to Tenant:
Stanford Telecommunications, Inc. (prior to the Commencement Date)
0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxx 000 Xxxxxx, Xxxxxxxx 00000 Attn: Xxx Xxxxxxx
(after the Commencement Date: The Premises)
with a copy to:
Watt Xxxxxx & Xxxxxx 0000 Xxxxxxxx Xxxxx, Xxxxx 000 XxXxxx, Xxxxxxxx
00000 Attn: Xxxx X. Xxxxxx, Esq.
(b) If addressed to Landlord:
Opus East, L.L.C. 0000 Xxxxxxxxx Xxxxxxxxx Xxxxx 0 10 Bethesda,
Maryland 208
with a copy to:
Opus U.S. Corporation 700 Opus Center 0000 Xxxx Xxxx Xxxxxxxxxx,
Xxxxxxxxx 00000 Attn: Xxx X. Xxxxx, Esq.
and
Xxxxx & Xxxxxx, P.C. 0000 Xxxxxxxx Xxxx Xxxxx Xxxxx 0000 Xxxxx Xxxxxx,
Xxxxxxxx 00000 Attn: Xxxxx X. Xxxxxx, Esq.
or at such other address as Landlord and Tenant may hereafter
designate by written notice to the other party. The effective date of all
notices shall be (i) three (3) days after the date of mailing if sent by United
States Postal Service, (ii) the date of delivery if sent by a nationally
recognized overnight courier service, or (iii) the date of receipt if sent by
hand delivery with signed receipts.
Section 16.6 Landlord's Agent. All rights and remedies of Landlord
under this Lease or that may be provided by law may be executed by Landlord in
its own name individually, or in the name of its agent, and all legal
proceedings for the enforcement of any such rights or remedies, including those
set forth in Article 14, may be commenced and prosecuted to final judgment and
execution by Landlord in its own name or in the name of its agent.
Section 16.7 Quiet Possession. Landlord covenants and agrees that
Tenant, upon paying the Base Rent, Additional Rent and other charges herein
provided for and observing and keeping the covenants, agreements and conditions
of this Lease on its part to be kept and performed, shall lawfully and quietly
hold, occupy and enjoy the Premises during the term of this Lease without
hindrance or molestation by Landlord or by any person claiming under or through
Landlord.
Section 16.8 Successors and Assigns. The covenants and agreements
herein contained shall bind and inure to the benefit of the Landlord, its
successors and assigns, and Tenant and its permitted successors and assigns.
Section 16.9 Severability. If any term or provision of this Lease
shall to any extent be held invalid or unenforceable, the remaining terms and
provisions of this Lease shall not be affected thereby, but each term and
provision of this Lease shall be valid and enforced to the fullest extent
permitted by law. This Lease shall be construed and enforced in accordance with
the laws of the state in which the Premises are located.
Section 16.10 No Abandonment or Waste. Tenant covenants not to do or
suffer any waste or damage or disfigurement or injury to the Premises or Office
Complex.
Section 16.11 Transfers by Landlord. The term "Landlord" as used in
this Lease so far as covenants or obligations on the part of Landlord are
concerned shall be limited to mean and include only the owner or owners of the
Office Complex at the time in question, and in the event of any transfer or
transfers or conveyances the then grantor shall be automatically freed and
released (except to the extent otherwise provided in Section 16.20 hereof) from
all liability accruing from and After the date of such transfer or conveyance
as
respects the performance of any covenant or obligation on the part of Landlord
contained in this Lease to be performed so long as the successor landlord
agrees to assume the original landlord's obligations and a copy of such
instrument is promptly delivered to Tenant. It is intended hereby that the
covenants and obligations contained in this Lease on the part of Landlord shall
be binding on the Landlord, its successors and assigns, only during and in
respect to their respective successive periods of ownership.
In the event of a sale or conveyance by Landlord of the Office Complex
or any part of the Office Complex, the same shall operate to release Landlord
from any future liability upon any of the covenants or conditions herein
contained and in such event Tenant agrees to look solely to the responsibility
of the successor in interest of Landlord in and to this Lease. This Lease shall
not be affected by any such sale or conveyance, and Tenant agrees to attorn to
the purchaser or grantee, which shall be personally obligated on this Lease
only so long as it is the owner of Landlord's interest in and to this Lease.
Notwithstanding anything to the contrary contained in this Section 16.11,
Landlord shall not assign its interest in this Lease prior to the Commencement
Date without the prior written consent of Tenant.
Section 16.12 Headings. The marginal or topical headings of the
several articles and sections are for convenience only and do not define, limit
or construe the contents of said articles and sections.
Section 16.13 Written Agreement. All preliminary negotiations are
merged into and incorporated in this Lease, except for written collateral
agreements executed contemporaneously herewith.
Section 16.14 Modifications or Amendments. This Lease can only be
modified or amended by an agreement in writing signed by the parties hereto. No
receipt of money by Landlord from Tenant or any other person after termination
of this Lease or after the service of any notice or after the commencement of
any suit, or after final judgment for possession of the Premises shall
reinstate, continue or extend the term of this Lease or affect any such notice,
demand or suit, or imply consent for any action for which Landlord's consent is
required, unless specifically agreed to in writing by Landlord. Any amounts
received by Landlord may be allocated to any specific amounts due from Tenant
to Landlord as Landlord determines.
Section 16.15 Landlord Control. Landlord shall have the right to
temporarily close any portion of the building area or land area to the extent
as may, in Landlord's reasonable opinion, be necessary to prevent a dedication
thereof or the accrual of any rights to any person or the public therein.
Section 16.16 Utility Easement. Provided such does not materially
interfere with Tenant's business or reduce the size or utility of the Premises
as contemplated by this Lease, Tenant shall permit Landlord (or its designees)
to erect, use, maintain, replace and repair pipes, cables, conduits, plumbing,
vents, and telephone, electric and other wires or other items, in, to and
through the Premises, as and to the extent that Landlord may now or hereafter
deem necessary or appropriate for the proper operation and maintenance of the
Office Complex.
Section 16.17 Not Binding Until Properly Executed. Employees or agents
of Landlord have no authority to make or agree to make a lease or other
agreement or undertaking in connection herewith. The submission of this
document for examination does not constitute an offer to lease, or a
reservation of, or option for, the Premises. This document becomes effective
and binding only upon the execution and delivery hereof by the proper officers
of Landlord and by Tenant. Tenant confirms that Landlord and its agents have
made no representations or promises with respect to the Premises or the making
of or entry into this Lease except as in this Lease expressly set forth, and
agrees that no claim or liability shall be asserted by Tenant against Landlord
for, and Landlord shall not be liable by reason of, breach of any
representations or promises not expressly stated in this Lease. This Lease,
except for the Building Rules and Regulations, in respect to which Section
16.18 of this Article shall prevail, can be modified or altered only by
agreement in writing between landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
Section 16.18 Building Rules and Regulations. Tenant shall perform,
observe and comply with the Building Rules and Regulations of the Office
Complex as set forth below, with respect to the safety, care and cleanliness of
the Premises and the Office Complex, and the preservation of good order
thereon, and, upon written notice thereof to Tenant, Tenant shall perform,
observe, and comply with any changes, amendments or additions thereto as from
time to time shall be established and deemed advisable by Landlord for tenants
of the Office Complex. Notwithstanding the foregoing, in no event shall any
amendments or revisions to the Rules and Regulations change or alter Tenant's
obligations or rights under this Lease, and in the event of a discrepancy
between the Rules and Regulations and the Lease, the Lease shall govern.
Section 16.19 Compliance with Laws and Recorded Covenants. 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 and regulations now
in force or which may hereafter be in force, and with the requirements of any
fire insurance underwriters or other similar body now or hereafter constituted
relating to or affecting the condition, use or occupancy of the Premises.
Tenant shall use the Premises and comply with any recorded covenants,
conditions, and restrictions affecting the Premises and the Office Complex as
of the commencement of the Lease or which are recorded during the Lease term
following notice to and acceptance by Tenant.
Except as specifically provided in the Work Agreement, Tenant shall
have the responsibility to comply with the requirements of the ADA in the
Premises only after the Commencement Date. As used in this Lease, "ADA" shall
mean the Americans with Disabilities Act of 1991, 42 U.S.C. ss. 12.101 et seq.
and all regulations applicable thereto promulgated as of the date hereof
(collectively, "ADA").
Section 16.20 Obligations Survive Termination. All obligations of
Landlord and Tenant hereunder not fully performed as of the expiration or
earlier termination of the term of this Lease shall survive the expiration or
earlier termination of the term hereof, including, without limitation, all
payment or repayment/refund obligations with respect to Operating Expenses,
insurance premiums, and Real Estate Taxes and all obligations concerning the
condition of the Premises.
Section 16.21 Tenant's Waiver. Intentionally Deleted.
Section 16.22 Authorization. Landlord and Tenant shall furnish to each
other, within ten (10) business days of written request from the other party, a
corporate resolution, proof of due authorization of partners, or other
appropriate and reasonable documentation evidencing the due authorization to
enter into this Lease.
Section 16.23 No Partnership or Joint Venture. This Lease shall not be
deemed or construed to create or establish any relationship or partnership or
joint venture or similar relationship or arrangement between Landlord and
Tenant hereunder.
Section 16.24 Landlord's Right to Substitute Premises. Intentionally
Deleted.
Section 16.25 Tenant's Obligation to Pay Miscellaneous Taxes. Tenant
shall pay, prior to delinquency, all taxes assessed or levied upon its
occupancy of the Premises, or upon the trade fixtures, furnishings, equipment
and all other personal property of Tenant located in the Premises, and when
possible Tenant shall cause such trade fixtures. furnishings, equipment and
other personal property to be assessed and billed separately from the property
of Landlord. In the event any or all of Tenant's trade fixtures, furnishings,
equipment or other personal property, or Tenant's occupancy of the Premises,
shall be assessed and taxed with the property of Landlord, Tenant shall pay to
Landlord its share of such taxes within thirty (30) days after delivery to
Tenant by Landlord of a statement in writing setting forth the amount of such
taxes applicable to Tenant's personal property.
Section 16.26 Signs. In addition to the signs shown on the Final Plans
and Specifications, Tenant may erect additional signs on the exterior or
interior of the Building or on the landscaped area adjacent thereto, provided
that such sign or signs are acceptable to Landlord in Landlord's reasonable
discretion, and such signs (a) do not cause any structural damage or other
damage to the Building; (b) do not violate applicable governmental laws,
ordinances, rules or regulations; (c) do not violate any existing restrictions
affecting the Premises; and (d) are compatible with the architecture of the
Building and the landscaped area adjacent thereto. Landlord further agrees that
Tenant's name and the names of its key employees shall be listed on the lobby
directory of the Premises without additional cost to Tenant.
Section 16.27 Exhibits. The following are made a part hereof, with the
same force and effect as if specifically set forth herein:
(a) Exhibit A - Legal Description of the Land
(b) Exhibit B - Work Agreement
(c) Exhibit C - Non Disturbance Agreement
(d) Exhibit D - Intentionally Deleted
(e) Exhibit E - Rules and Regulations
(f) Exhibit F - Base Building
Section 16.28 Landlord's Limited Liability. Anything contained in this
Lease to the contrary notwithstanding, but subject to the terms of this Section
16.28, from and after the Final
Completion of the Building (as defined in the Work Agreement), Tenant agrees
that Tenant shall look solely to the estate and property of Landlord in the
Premises or the proceeds from the sale, transfer, foreclosure, refinance or
conversion thereof, and insurance and condemnation proceeds for the collection
of any judgment or other judicial process requiring the payment of money by
Landlord for any default or breach by Landlord under this Lease, subject,
however, to the prior rights of any mortgagee or Landlord of the Premises. No
other assets of Landlord or any partners, shareholders, or other principals of
Landlord shall be subject to levy, execution or other judicial process for the
satisfaction of Tenant's claim. In the event Tenant obtains a final,
non-appealable judgment against Landlord, but the estate and property of
Landlord in the Premises are not sufficient to satisfy the judgment, then
Tenant may, at its option, offset the judgment against Rent coming due under
the Lease and, if the judgment remains unsatisfied as of the end of the term,
extend the term and continue to offset its Rent obligations.
Section 16.29 Rooftop Rights. Subject to Landlord's review and prior
written approval, which shall not be unreasonably withheld, and subject to
compliance with applicable laws and all restrictions of record, Tenant shall,
at all times during the term of this Lease, have the right to use the
Building's shafts for conduits between the Premises and the roof of the
Building for the installation and maintenance of conduits and cables to extend
to communications equipment located or to be located on the roof. Further,
subject to availability of space and Landlord's prior written approval (not to
be unreasonably withheld, conditioned or delayed) of the size, location,
esthetics, and height thereof, Tenant shall have the right at all times to
install and operate microwave or satellite dishes or other antenna
communications system on the roof of the Building subject to compliance with
all applicable laws and all restrictions of record. Landlord's approval rights
shall include without limitation, review and approval of the procedures and
personnel with respect to installation, maintenance, and operation. Tenant
shall not be obligated to pay rental for any equipment which may be installed.
Use of such roof space shall be subject to reasonable rules and regulations
specified by Landlord and to Tenant's obtaining such insurance coverage as
Landlord shall reasonably require. At the expiration or earlier termination of
the Lease, Tenant, at its expense, shall remove the communications equipment.
Any work required to restore the roof or any other part of the Building from
any damage occasioned by the installation, maintenance, relocation or removal
of the communications equipment shall be borne by Tenant. Tenant shall
indemnify and hold harmless Landlord from all costs, damages, expenses,
liabilities, and suits, including reasonable attorneys' fees, occasioned by
Tenant's installation, maintenance, relocation, removal or use of the
communications equipment, including without limitation, any damage to property
and/or injury or death to persons caused thereby from the installation,
maintenance, and operation. The installation, maintenance, relocation, and
removal of the communications equipment will be performed in such a manner as
not to interfere with the operation of the Building. All communications
equipment shall be maintained by the Tenant at Tenant's sole cost and expense
in good and safe condition. The communications equipment shall be used solely
by Tenant in the ordinary course of its business, and Tenant shall not allow
any parties other than Tenant to use such equipment or the rooftop without
Landlord's prior written consent, not be unreasonably withheld. The terms of
this Section 16.29 shall survive the expiration or earlier termination of this
Lease.
Section 16.30 Parking. Notwithstanding anything to the contrary
contained in this Lease, if any event or action or omission by Landlord renders
the parking areas for the Building and/or Tenant's parking space allocation
(including reserved spaces, if any) for whatever reason inaccessible or
unusable, or which causes the number of parking spaces for the Premises to be
reduced below applicable Loudoun County code requirements (which reasons may
include but are not limited to repairs, maintenance, casualty, condemnation, or
displacement or dislocation caused by future construction), Landlord shall
immediately provide substitute parking areas for Tenant's use and its invitees
which areas shall (i) cause no net reduction in Tenant's parking space
allocation, (ii) be similarly convenient in terms of location, quality and
safety, and (iii) except in the case of an emergency, be designated by prior
written notice to Tenant with the exact location of such substitute parking
areas subject to Tenant's approval not to be unreasonably withheld, conditioned
or delayed. In no event shall Landlord charge any separate or additional charge
or rent for use of the parking areas located on the Property from time to time.
Section 16.31 Measurement of Premises. As used in this Lease, the term
"net rentable area" shall mean the number of square feet as measured in
accordance with the June, 1996 Building Owners and Managers Association
Standard Method of Measurement.
Section 16.32 Renewal Option. Tenant shall have the right to renew and
extend the term of this Lease for the Renewal Term (herein so called) upon and
subject to the following terms and conditions:
Tenant may extend this Lease for one (1) Renewal Term of five (5)
years by Tenant's giving Landlord a Renewal Notice no more than twelve (12)
months and no less than nine (9) months prior to the expiration of the initial
term. Such Renewal Term shall commence immediately
upon the expiration of the initial term and upon exercise of such renewal
option the expiration date of the term shall automatically become the last day
of the Renewal Term. If Tenant does not renew the Lease in a timely manner for
the Renewal Term, then Tenant's rights with respect to such Renewal Term shall
expire and be of no further force and effect.
The exercise by Tenant of the renewal option set forth herein must be
made, if at all, by delivery of the Renewal Notice to Landlord on or before the
dates set forth above. Once Tenant shall exercise such renewal option, Tenant
may not thereafter revoke such exercise. At Landlord's election, Tenant's
renewal option shall terminate and be of no further force or effect if (i) an
Event of Default exists under the Lease at the time Tenant attempts to exercise
its renewal option, (ii) Tenant defaults under any provision of the Lease after
exercising its renewal option and such default continues beyond any applicable
cure period provided in the Lease, (iii) at any time during the Term of the
Lease, as extended, Tenant assigns the Lease to a third party, or (iv) at the
time Tenant attempts to exercise its renewal option, Tenant has subleased or
has demonstrated an intention to sublease more than fifty percent (50%) or more
of the Premises to an unrelated third party.
Tenant shall take the Premises "as is" for the Renewal Term and, other
than as may then be a component of the "Fair Market Rental Rate", Landlord
shall have no obligation to make any improvements or alterations to same;
provided, however, Landlord shall comply with its repair and maintenance
obligations as set forth in this Lease.
Annual Base Rent for the Renewal Term shall be the "Fair Market Rental
Rate" multiplied by the number of square feet of net rentable area in the
Building, but in no event less than the Base Rent for the last Lease Year of
the initial term. Within thirty (30) days after the date of Tenant's Renewal
Notice, Landlord and Tenant shall endeavor in good faith to agree upon the Fair
Market Rental Rate applicable to the Building for each year of the Renewal
Term. In the event Landlord and Tenant are unable to agree upon the Fair Market
Rental Rate within the aforesaid thirty (30) day period, Landlord and Tenant
shall each select a broker to determine the Fair Market Rental Rate within
thirty-five (35) days after the date of the Renewal Notice. Each broker shall
make an independent determination of the Fair Market Rental Rate of the
Building for each year of the Renewal Term. If the two brokers so appointed
agree on the Fair Market Rental Rate for each year of the Renewal Term within
forty (40) days after the date of the Renewal Notice, the Fair Market Rental
Rate shall be the amount determined by them.
If the two brokers so appointed do not agree on the Fair Market Rental
Rate within forty (40) days after the date of the Renewal Notice, the two
brokers shall jointly appoint a third broker on or before the forty-fifth
(45th) day after the date of the Renewal Notice. The third broker shall make a
valuation within fifty (50) days after the date of the Renewal Notice and the
Fair Market Rental Rate for each year of the Renewal Term shall be an amount
equal to the quotient obtained by dividing the sum of the Fair Market Rental
Rates determined by the two brokers who were closest to each other in amount,
by two.
Each broker appointed shall be an individual of recognized competence
who has a minimum of ten (10) consecutive years' experience in the leasing of
office space in the suburban Northern Virginia area immediately preceding such
engagement. All valuations of the Fair Market Rental Rate shall be in writing,
shall be expressed in terms of an annual rent per square foot of rentable area,
and shall take into consideration that the Premises are to be taken in "as is"
condition for any renewal period. Each broker shall determine the Fair Market
Rental Rate on the basis of all relevant factors affecting Fair Market Rental
Rates such as concessions then being offered in the marketplace. The party
appointing each broker shall be obligated, promptly after receipt of the
valuation report prepared by the broker appointed by such party, to deliver a
copy of such valuation report to the other party in the manner provided
elsewhere in this Lease for the giving of notices. If a third broker is
appointed, the third broker shall be directed, at the time of his appointment,
to deliver copies of his valuation report, promptly after its completion, to
Landlord and Tenant in the manner provided elsewhere in this Lease for the
giving of notices. The expenses of each of the first two brokers appointed
shall be borne by the party appointing such broker. The expenses of the third
broker appointed shall be paid one-half by Landlord and one-half by Tenant.
Tenant shall not be entitled to any rental abatement concessions,
additional renewal options or other similar concessions during any Renewal
Term, except to the extent they constitute part of the determination of the
Fair Market Rental Rate.
Except as set forth herein, the leasing of the Premises for the
Renewal Term shall be upon the same terms and conditions as are applicable for
the initial term and shall be upon and subject to all of the provisions of this
Lease, including, without limitation, the obligation of Tenant to pay any costs
or amounts payable by Tenant to Landlord under the Lease.
Tenant's rights under this Section 16.32 shall be personal to Tenant
and shall not inure to the benefit of any assignee or occupant of the Premises
other than an assignee which is a successor
corporation into which or with which Tenant is merged or consolidated or which
acquires substantially all of Tenant's assets and property, or to any
subsidiary, affiliate or parent company of Tenant, or any subsidiary of the
parent company of Tenant.
Section 16.33 Right of First Offer to Purchase. Landlord shall notify
Tenant of its intent to market the Property for sale, and shall accord Tenant
thirty (30) days from the date of notice (which notice shall include the
purchase price to be sought by Landlord) to reach agreement with Landlord on
terms and conditions of sale, in which event, the parties will enter into a
contract memorializing such terms and proceed to closing. If the parties do not
reach agreement within such thirty (30) day period, Landlord shall have the
absolute right to sell the Property to any other party on such terms and
conditions as may be acceptable to Landlord in its sole discretion.
Section 16.34 Indoor Air Quality. The party performing the property
management functions shall have the Building tested for indoor air quality on
an annual basis. To the extent Landlord is serving as property manager, (i) the
costs of the tests shall constitute an Operating Expense, (ii) Landlord shall
promptly provide to Tenant copies of such annual written test reports relating
to the air quality in the Building, or any other written report, information,
or data prepared as an evaluation of the indoor air quality of the Building,
and (iii) Landlord shall implement recommendations set forth in the report as
appropriate to cause all air quality in the Building to conform to then
existing local, state or federal regulations and the costs arising in
connection with such implementation shall constitute Operating Expenses.
In the event that any problem with indoor air quality which is caused
by the negligent actions or omissions of Landlord or Landlord's licensees,
employees, agents, contractors or invitees use or occupancy of the Building
prevents Tenant from conducting its business in the Building for five (5)
consecutive business days, then beginning on the sixth (6th) consecutive
business day, Tenant's obligation to pay Rent shall xxxxx until the air quality
condition is corrected and Tenant is able to resume its business operations in
the Building.
Tenant covenants and agrees that the Building shall be a "smoke free"
building.
Section 16.35 Landlord's Representations and Warranties. Landlord is
the contract purchaser of the Property pursuant to the Standard Retail Purchase
and Sale Agreement ("Purchase Contract") between Landlord as buyer and
Washington Engineering Associates Limited Partnership ("WEALP") dated April 23,
1997. The Purchase Contract contains certain representations and warranties
("Contract Reps") from WEALP as the owner to Landlord as the buyer. Landlord
represents and warrants that the substance of the Contract Reps is included in
the representations and warranties contained in this Section 16.35. as follows.
In connection therewith, Landlord represents and warrants to Tenant
(i) To the best of Landlord's knowledge and belief and based on an
environmental report to be prepared by ECS Limited, a copy of which will be
delivered to Tenant after receipt by Landlord, there are no Hazardous Materials
on, in or under the Property, Building or Office Complex. Landlord further
represents that the current owner of the Property ("Owner") has not provided
Landlord with, nor has Landlord otherwise received, copies of any summons,
citation, directive, notice, complaint, letter or other written communication,
from the United States Environmental Protection Agency or other governmental
authority concerning any alleged violation of any environmental law or rule or
regulation at the Property. Landlord further represents and warrants that, to
its actual knowledge, there are no buried fuel tanks within the Property or the
Option Parcel (as defined in the Purchase Contract) or within any land
adjoining or in the immediate vicinity of either. The representations and
warranties contained in this Section 16.35 shall be true and correct as of the
Commencement Date, and Landlord shall indemnify Tenant and hold it harmless
against any claims, damages, losses or liabilities (including reasonable
attorney's fees) incurred by Tenant and arising from any breach of same.
(ii) To the best of Landlord's knowledge and belief, the Premises will
be in compliance with applicable laws, statutes, ordinances and regulations in
effect as of the Commencement Date. Landlord hereby agrees that Tenant shall
have no responsibility for failure of the Premises or the Office Complex to
comply with applicable laws, statutes, ordinances and regulations which are in
effect and applicable to the Premises or the Office Complex as of the
Commencement Date.
(iii) As of the Commencement Date, the Premises shall be in compliance
with all recorded covenants, conditions and restrictions affecting the
Premises.
(iv) To the best of Landlord's knowledge and belief, the Premises will
be in compliance with the requirements of the ADA as of the Commencement Date.
Landlord further represents and warrants that the work to be performed in
accordance with the Work Agreement shall be in compliance with or shall be made
to comply with the requirements of the ADA;
provided, however, Landlord shall not be responsible for any ADA non-compliance
arising from Tenant's Space Plan prepared by Tenant's Architect (as such terms
are defined in the Work Agreement).
(v) To the best of Landlord's knowledge, fiber optic service is
available to the development of which the Property is a part. Landlord will
cooperate with Tenant at Tenant's sole cost and expense to bring the fiber
optic service to the Premises, if requested.
(vi) Based on a representation and warranty from Owner contained in
the Purchase Contract, Owner has not received any written notice of any
violation ("Violation Notice") of any applicable laws, ordinances, regulations,
statutes, rules and restrictions pertaining to and affecting the Property.
Landlord further represents and warrants that it has not received any Violation
Notice relating to the Property.
(vii) Based on a representation and warranty from Owner contained in
the Purchase Contract, there is no pending, or to Owner's actual knowledge,
threatened condemnation or similar proceeding affecting the Property or any
portion thereof, and Owner has no knowledge that any such action is presently
contemplated. Landlord represents and warrants that to its actual knowledge,
there is no such condemnation proceeding affecting any portion of the Property,
and Landlord does not have knowledge that a condemnation proceeding affecting
the Property is contemplated.
(viii) Based on a representation and warranty from Owner contained in
the Purchase Contract, (a) Owner has granted to no other person, firm
corporation or other entity any right or option to acquire the Property or any
portion thereof or any interest therein from Owner, and (b) Owner shall not
enter into any other agreement, contract or option to sell the Property or any
portion thereof or interest therein with any other person, firm or entity
during the term of the Purchase Contract. Landlord represents and warrants
that, to its knowledge, neither Landlord nor Owner has granted any other
person, firm, corporation or entity any right or option to acquire any portion
of the Property or the Option Parcel.
(ix) Based on a representation and warranty from Owner contained in
the Purchase Contract, Owner has not received any notice regarding proceedings
to change the zoning or land use classification of the Property or the
conditions applicable thereto. Landlord represents and warrants that it has not
received any such notice to change the zoning applicable to the Property.
(x) Based on a representation and warranty from Owner contained in the
Purchase Contract, Owner has not received any notice that the Property was ever
used as a landfill or as a garbage dump during the period of Owner's ownership.
Landlord represents and warrants that it has not received any notice that the
Property was ever used as a landfill or a garbage dump during the period of
Owner's ownership.
(xi) Based on a representation and warranty from Owner contained in
the Purchase Contract, neither Owner nor any of its agents or employees have
made unrecorded commitments or side agreements with any governmental authority,
utility company, school board, church or other religious body, or any
homeowners or homeowners' association or with any other organization, group,
party, or individual (collectively, "Side Agreements"), relating to the
Property which would impose an obligation upon Landlord or its successors or
assigns to make any contribution or dedication of money or land or to
construct, install, or maintain any improvements of a public or private nature
on or off the Property. Landlord represents and warrants that, to its
knowledge, Owner has not entered into any such Side Agreements.
(xii) Based on a representation and warranty from Owner contained in
the Purchase Contract, Owner has not received written notice ("Preservation
Notice") that the Property has been identified by any governmental body or
private organization as the habitat of any species of plant or animal which is
endangered or which requires special conservation measures. Landlord represents
and warrants that Landlord has not received any such Preservation Notice.
(xiii) Based on a representation and warranty from Owner contained in
the Purchase Contract, Owner has not received written notice that any human
burial grounds or archaeological sites have been identified as existing upon
the Property and Owner has not received written notice that any improvements
upon the Property have been designated by any governmental authority as having
special architectural or historical significance. Landlord represents and
warrants that, to its knowledge, the Property has not been so designated as
having special architectural or historical significance.
(xiv) After Closing (as defined in the Purchase Contract), Landlord
will own fee simple title to the Property, free and clear of all restrictions,
liens, encumbrances, easements, exceptions, covenants, conditions and
reservations, except for Permitted Exceptions (as defined in the Purchase
Contract), financing agreements for which Tenant has received a non-disturbance
agreement as contemplated by Section 15.1 of this Lease, and other title
matters expressly permitted by the terms of this Lease.
Section 16.36 Expansion Option.
Landlord intends to purchase the parcel ("Expansion Parcel")
immediately adjacent to the Land containing approximately 5.5 acres upon the
terms and conditions more particularly set forth in the Purchase Contract. The
Expansion Parcel is also known as parcel L-3. Tenant shall be entitled to lease
the Expansion Parcel and the Expansion Building (as hereinafter defined) on the
terms and conditions set forth in this Section 16.36.
If Tenant desires to lease the Expansion Parcel and the Expansion
Building (collectively, the "Expansion Premises"), Tenant shall give Landlord
written notice prior to the first anniversary of the Commencement Date. If
Tenant fails to timely give Landlord such written notice, time being of the
essence, Tenant's expansion option shall automatically expire and be of no
further force or effect. Tenant shall not have the right to exercise this
expansion option if, at any time prior to the time Tenant takes occupancy of
the Expansion Premises, Tenant has defaulted under the Lease beyond any
applicable notice and cure period contained in the Lease.
If Tenant timely gives Landlord written notice of its desire to
exercise its expansion option in accordance with this Section 16.36, Landlord
shall commence and thereafter diligently pursue completion of the Expansion
Building on the Expansion Parcel. As used herein, the term "Expansion Building"
shall mean and refer to an of Office building containing no less than 40,000
square feet of net rentable area and incorporating building materials and
leasehold improvements, the quantity and quality of which shall be
substantially similar to the Building to be built pursuant to the Work
Agreement. Notwithstanding the foregoing, Landlord shall incorporate all
changes to the Expansion Building requested by Tenant which are acceptable to
Landlord in its sole but reasonable discretion. Also notwithstanding anything
to the contrary contained in this Section 16.36, Landlord shall be entitled to
construct the Expansion Building such that it contains more than 40,000 square
feet of net rentable area, in which event (i) "Expansion Premises" shall only
refer to the number of square feet of net rentable area in the Expansion
Building to be leased by Tenant (but in no event less than 40,000 square feet
of net rentable area), and not the entire Expansion Building and the Expansion
Parcel; (ii) Landlord shall be entitled to lease the excess space in the
Expansion Building to third parties; and (iii) Landlord shall assume all
property management responsibilities for the Expansion Building and Tenant
shall only be responsible for its proportionate share of the costs and expenses
incurred in connection with same.
The Expansion Building shall be constructed within eighteen (18)
months of the date of Tenant's notice exercising its expansion option, subject
to all the same delay provisions as are applicable to the construction of the
Building. Tenant shall lease the Expansion Premises for a minimum term of ten
(10) years, commencing on the date of Final Completion of the Expansion
Building, and ending on the tenth (10th) anniversary of such date.
Tenant shall commence payment of Base Rent, Additional Rent and all
other applicable sums with respect to the Expansion Premises immediately upon
Landlord's Final Completion of same. Base Rent for the Expansion Premises shall
be equal to the product of (i) the then-currently escalated Base Rent rate for
the Premises as set forth in the Lease, and (ii) the greater of (x) 40,000
square feet of net rentable area, or (y) the number of square feet of net
rentable area contained in the Expansion Premises. Base Rent for the second and
all subsequent years during the term for the Expansion Premises shall be
recomputed in accordance with the rental escalation provisions applicable to
the Premises, provided the number of square feet of net rentable area for the
Expansion Premises shall not be less than 40,000 for purposes of computing
rent. At the time the Expansion Premises are added to the Premises, the Term of
the Lease for the initial Premises shall be automatically extended such that
the Term of the Lease for both the initial Premises and the Expansion Premises
shall expire on the tenth (l0th) anniversary of the date of Final Completion of
the Expansion Premises, unless sooner terminated.
Tenant's rights under this Section 16.36 shall be personal to Tenant
and shall not inure to the benefit of any assignee or occupant of the Premises
other than an assignee which is a successor corporation into which or with
which Tenant is merged or consolidated or which acquires substantially all of
Tenant's assets and property, or to any subsidiary, affiliate or parent company
of Tenant, or any subsidiary of the parent company of Tenant.
Landlord and Tenant acknowledge that, given the uncertainties of
Tenant's expansion needs and Landlord's opportunities to accommodate additional
parties in the Expansion Building, it is not possible to set out all the terms
and conditions relative to Tenant's leasing the Expansion Premises as of the
date of this Lease. As such, if Tenant exercises its expansion right in
accordance with the terms of this Lease, Landlord and Tenant shall, in good
faith, negotiate a lease amendment which addresses all matters relative to such
expansion; provided, however, the parties agree that, to the extent reasonably
possible, the leasing of the Expansion Premises shall be on and subject to the
same terms and conditions as are applicable to the leasing of the initial
Premises. In the event Landlord and Tenant are unable to finalize the terms of
the lease amendment within sixty (60) days after the date on which Tenant gives
Landlord written notice exercising the option,
Tenant's Expansion Option shall automatically expire and be of no further force
and effect unless the sixty (60) day period is extended by mutual agreement of
Landlord and Tenant.
Section 16.37 Refurbishing. In the event Tenant elects to paint,
re-carpet or make other leasehold improvements to the Premises After the fifth
(5th) anniversary of the Commencement Date, Landlord shall, subject to this
Section 16.37, finance a portion of Tenant's costs incurred in connection
therewith up to an amount equal to the product of $5.00 and the number of
square feet of net rentable area contained in the Premises ("Refurbishing
Loan"). The items for which the proceeds of the Refurbishing Loan may be used
shall be subject to Landlord's prior written approval, such approval not to be
unreasonably withheld.
If Tenant desires the Refurbishing Loan, then prior to the sixth (6th)
anniversary of the Commencement Date Tenant shall deliver to Landlord (i) a
certificate signed by an officer of Tenant stating that the refurbishing work
is complete; (ii) final lien waivers from all subcontractors performing the
refurbishing work; and (iii) paid invoices related to the refurbishing work. So
long as Tenant is not then in default under the terms of the Lease beyond any
applicable notice and cure period provided in Section 14.1 hereof, Landlord
shall disburse the Refurbishing Loan proceeds to Tenant within thirty (30) days
of receipt of the items referenced above.
The Refurbishing Loan shall bear interest at 9% per annum (the
"Interest Rate"). Commencing on the first (1st) day of the month next
succeeding the date on which the Refurbishing Loan proceeds are distributed to
Tenant and continuing monthly thereafter, Tenant shall pay to Landlord monthly
installments sufficient in amount to fully amortize all principal and interest
during the period remaining in the Term of the Lease (approximately 5 years).
Such payments shall, for collection and Default purposes, constitute Additional
Rent.
The entire unpaid balance of the Refurbishing Loan, including accrued
and unpaid interest, shall be accelerated and become immediately due and
payable in full upon the expiration or earlier termination of the Term of the
Lease.
All refurbishing work shall be carried out in accordance with the
provisions of this Lease, including, without limitation, the provisions of
Article 8 governing improvements to the Premises by Tenant.
Section 16.38 Site License. Landlord acknowledges that Tenant is
currently negotiating with WEALP for a license to allow Tenant to maintain and
operate a telescope on other property owned by WEALP in the vicinity of the
Property. If, at any time during the term of this Lease, Tenant desires to
relocate the telescope onto the Property or the Expansion Parcel, then provided
Tenant is not in default beyond any applicable notice and cure period, Landlord
and Tenant shall use good faith efforts to negotiate a mutually acceptable
license agreement for the relocation of the telescope onto the Property or the
Expansion Parcel.
IN WITNESS WHEREOF the parties have executed this Lease as of the day
and year first above written.
Landlord:
Opus East, L.L.C.
By [SEAL]
Its PRESIDENT
Tenant:
Stanford Telecommunications, Inc.
By
Its [SEAL]
