EX-10.10
5
ex10_10.htm
LEASE-COLUMBIA MD (STE. 260)
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[Missing
Graphic Reference]
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CORPORATE
OFFICE
PROPERTIES
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Corporate
Office Properties Trust ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone
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Facsimile
▇▇▇-▇▇▇-▇▇▇▇
Date: June
13,
2005
To: Distribution
Re: Gateway
44, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Convera
Corporation
Agreement
of Lease
Please
find attached a copy of the referenced document dated 6/10/05.
DISTRIBUTION:
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Lender
code: 21.2T0
AGREEMENT
OF LEASE
by
and
between
GATEWAY
44, LLC
Landlord
and
CONVERA
CORPORATION
Tenant
(▇▇▇▇
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▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇)
1
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4/29/05
ibw
AGREEMENT
OF LEASE
GATEWAY
44,
LLC
("LANDLORD")
CONVERA
CORPORATION ("TENANT")
TABLE
OF CONTENTS
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1.
Definitions and Attachments
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3
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2.
Demise
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5
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3.
Term
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5
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4.
Security Deposit and Advance Rent
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6
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5.
Use
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6
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6.
Rent
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7
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7.
Requirements of Aplicable Law
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10
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8.
Certificate of Occupancy
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11
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9.
Contest-Statute, Ordinance, Etc
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11
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10.
tenant's Improvements
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11
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11.
Repairs and Maintenance
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11
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12.
Conduct on Premises
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13
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13.
Insurance
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13
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14.
Rules and Regulations
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14
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15.
Mechanics' Liens
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14
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16.
▇▇▇▇▇▇'s Failure to Repair
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14
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17.
Property - Loss, Damage
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15
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18.
Destruction - Fire or Other Casualty
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15
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19.
Eminent Domain
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15
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20.
Assignment
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15
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21.
Default; Remedies; Bankruptcy of Tenant
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16
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22.
Damages
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18
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23.
Services and Utilities
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18
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24.
Electric Current
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19
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25.
Telephone and Telecommunications
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20
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26.
Acceptance of Premises
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20
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27.
Inability to Perform
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20
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28.
No Waivers
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21
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29.
Access to Premises and Change in Services
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21
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30.
Estoppel Certificates
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21
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31.
Subordination
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21
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32.
Attomment
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21
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33.
Notices
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22
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34.
Intentionally Deleted
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22
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35.
Tenant's Space
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22
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36.
Quiet Enjoyment
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22
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37.
Vacation of Premises
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23
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38.
Members' Liability
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23
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39.
Separability
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23
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40.
Indemnification
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23
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41.
Captions
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24
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42.
Brokers
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24
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43.
Recordation
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24
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44.
Successors and Assigns
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24
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45.
Integration of Agreements
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24
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46.
Hazardous Material; Indemnity
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25
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47.
Americans With Disabilities Act
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25
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48.
Several Liability
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26
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49.
Financial Statements
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26
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50.
Definition of Day and Days
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26
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2
AGREEMENT
OF LEASE
GATEWAY
44, LLC ("LANDLORD")
CONVERA
CORPORATION ("TENANT")
AGREEMENT
OF LEASE
THIS
AGREEMENT OF LEASE (this "Lease") made this 10th day of June,
2005, by and between GATEWAY
44, LLC
(the
"Landlord")
and CONVERA
CORPORATION (the
"Tenant"), witnesseth that the parties hereby agree as follows:
WLTNESSETH:
THAT
FOR
AND IN CONSIDERATION of the mutual covenants and agreements herein contained,
the parties hereto do hereby covenant and agree as follows:
1. Definitions
and Attachments.
1
1 Certain
Defined Terms.
1
1.1
"Project" means the subdivided lot located in the Columbia Gateway development
of ▇▇▇▇▇▇ County, Maryland, which contains 15.262 acres and is more fully
described on Exhibit
A-1
attached
hereto and made a part hereof, which contains four (4) multi-tenant office
buildings located at 6760, 6750, 6740 and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇.
1.1.2
"Building"
means the office building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, which is located within ▇▇▇▇▇▇ County, Maryland.
1.1.3
"Rentable Area of the Building" means 37,248 rentable square feet, subject
to
adjustment in accordance with BOMA standards.
1.1.4
"Rentable
Area of the Project" means 229,736 rentable square feet, subject to adjustment
as described in Section
6.2.6
of this
Lease.
1.1.5
"Premises"
means that the Initial Premises and the Remaining Premises. "Initial Premises"
shall mean that portion of the Building located on the second floor designated
as Suite 260 described on the schedule attached hereto as Exhibit "A" and made
a
part hereof. "Remaining Premises" shall mean that portion of the Building
located on the first floor designated as Suite 150 described on the schedule
attached hereto as Exhibit "A".
1.1.6
"Rentable
Area of the Premises" means 8,388 rentable square feet; consisting of 2,364
rentable square feet in the Initial Premises and 5,024 rentable square feet
in
the Remaining Premises.
1.1.7
"Initial Term" means a period of three (3) years plus the part of a month
mentioned in Section
3.1,
commencing on the Initial Premises Commencement Date and ending as provided
in
Section
3.1.
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1.1.8
"Annual Baso Rent" means the amount set forth on the following
schedule:
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A. For
the Initial Premises:
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Rental
Year
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PSF
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Annual
Base Rent
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Monthly
Installments
Of
Annual Base Rent
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1
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$23.00
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$54,372.00
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$4,531.00
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2
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$23.69
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$56,003.16
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$4,666.93
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3
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$24.40
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$57,683.25
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$4,806.94
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B. For
the
Remaining Premises:
Remaining
Premises Commencement Date
-
Lease
Year 3* $24.40 $122,585.60 $10,215.47
*
Assumes
a Remaining Premises Commencement Date occurring in Lease Year 3. If the
Remaining
Premises Commencement Date occurs in a Lease Year prior to Lease Year 3, then
the
Base
Rent shall be the Per Square Foot number used in such Lease Year in the Initial
Premises Base Rent schedule above multiplied by the Rentable Area of the
Remaining Premises.
1.1.10
"Target Date" means August 1, 2005.
1.1.11
"Advance
Rent" means the sum of $4,531.00. See Section
4.2.
1.1.12
"Security
Deposit" means the sum of $4,531.00. See Section
4.1.
1.1.13
"Tenant Notice Address" means
▇▇▇▇
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
Telephone
(▇▇▇) ▇▇▇-▇▇▇▇ Telecopier (▇▇▇) ▇▇▇-▇▇▇▇
1.1.14
"Base
Year
Building Expenses" shall mean the actual Building Expenses per rentable square
foot incurred by Landlord for the 2006 calendar year.
1.1.15
"Base Year Taxes" shall mean the actual Taxes incurred by Landlord in connection
with the Project per rentable square foot for the 2006 calendar
year.
1.1.16
"Broker" means The Ezra Company.
1.2 Additional
Defined Terms.
The
following additional terms are defined in the places in this Lease noted below:
Term Section
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47
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"Applicable
Laws"
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7
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"Building
Expenses"
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6.2.2
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"Commencement
Date"
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3.1
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"Common
Areas"
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6.2.4
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"Cost
of Building Expenses Per Square Foot"
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6.4.1
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"Cost
of Taxes Per Square Foot"
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6.3.1
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"Default
Rate"
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6.6
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"Hazardous
Material"
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46
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"HVAC"
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23
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"Landlord's
Notice"
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3.3
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"Lease
Year"
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6.2.5
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"Mortgagee"
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31
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"Normal
Business Hours"
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23
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"Property"
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6.2.1
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"Substantially
Complete"
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3.2
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"Successor"
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32
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"Tenant
Improvements"
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35
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"Term"
1.3 Attachments.
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3.4
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The
following documents are attached hereto, and such documents, as well as all
drawings and documents prepared pursuant thereto, shall be deemed to be a part
hereof:
Exhibit
"A" - Floor Plan
Exhibit
"B" - Rules and Regulations
Exhibit
"C" - Schedule of Tenant Improvements
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Exhibit
"D" Exhibit "E" Exhibit "F" Exhibit "G"
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-
Estoppel Certificate
- Subordination,
Attornment and Non-Disturbance Agreement
- Guaranty
- Commencement
Date Agreement
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2. Demise.
Landlord
hereby leases unto Tenant, and Tenant does hereby rent from Landlord the
Premises. In addition thereto, Tenant shall have the right to use, on a
non-exclusive basis, and in common with the other tenants of the Building the
Common Areas of the Building (as that term is defined in Section
6.2.4
hereof).
3. Term.
3.1
Commencement
Date and Term.
This
Lease shall commence on the "Initial
Premises Commencement Date" (as herein defined) and shall be for the Initial
Term, plus the portion of a calendar month, if any, from the Commencement Date
to the last day of the calendar month in which such Commencement Date occurs.
As
used in this Lease, the term "Initial
Premises Commencement Date", as advanced or postponed pursuant to the terms
hereof, shall be defined as the earlier to occur of (a) the date on which Tenant
takes possession and occupancy of the Initial Premises, or (b) the date which
is
fifteen (15) days following that date which is the first on which all of the
following events have occurred, namely (i) the Initial Premises is "substantially
completed", as defined in Section
3.2
following, (ii) Landlord has given Tenant written notice that the Initial
Premises is "substantially
completed", and (iii) the "Target Date" as defined in Section
3.2
has
arrived. Within fifteen (15) days after request from Landlord, Tenant shall
execute and deliver the Commencement Date Agreement in substantially the form
attached hereto as Exhibit
"G".
As used
in this Lease, the term "Remaining
Premises Commencement Date" shall mean that day immediately following the
expiration or sooner termination of the Sublease between MWH Americas, Inc.
dated May 31, 2005 for the Remaining Premises, provided MWH Americas, Inc.
does
not elect to extend the term of the lease for the Remaining
Premises.
3.2
Substantial
Completion.
Subject
to the provisions of Section
35,
Landlord
shall use its reasonable efforts to "substantially
complete" the Initial Premises by the Target Date, provided that the Target
Date
shall be extended for the number of days that Tenant fails to satisfy its
obligations under Section
35.
"Substantially complete" means that: (i) the construction of the improvements
described in Section
35
has been
completed so that Tenant can use the Initial Premises for its intended purposes
without material interference to Tenant conducting its ordinary business
activities, (ii) the Initial Premises has been approved for occupancy by
governmental authorities having jurisdiction, (iii) Tenant has ready access
to
the Building and Initial Premises through the lobby, hallways and elevators,
and
(iv) the Initial Premises is ready for installation of any equipment, furniture,
fixtures or decoration that Tenant will install. Landlord shall keep Tenant
advised as to its progress with regard to "substantially
completing" the Initial Premises by the Target Date. Notwithstanding the
foregoing, the requirements of subsection (ii) shall be deemed satisfied if
all
of the other subsections have been satisfied and the government approval is
delayed as a result of the installation of furniture, fixtures or equipment
which is not included within the scope of Landlord's responsibilities under
Section
35
below.
3.3
Option
to Extend Lease Term.
Provided
Tenant is not in default of any term, covenant or condition of this Lease,
Tenant shall have the option to extend the Initial Term of this Lease for one
(1) additional period of three (3) years (the "Renewal Term") to commence
immediately upon the expiration of the Initial Term.
Tenant's
rental of the Premises during the Renewal Term shall be upon the same terms,
covenants and conditions contained in this Lease, except that Tenant shall
pay
to Landlord as Base Rent that amount equal to the "Prevailing Market Rate"
for
the Premises for the Renewal Term as hereinafter defined (including annual
adjustments). For purposes of this Section
3.3,
the term
"Prevailing Market Rate" shall mean the then prevailing market rate being
charged for comparable space in comparable office buildings within a ten (10)
mile radius of the Premises, with consideration given for construction
allowances, commissions, free rent, and other concessions or premiums. In order
to exercise its option granted herein, Tenant shall notify Landlord in writing
of its intent to renew not less than one hundred eighty (180)days prior to
the
expiration of the Initial Term. Within thirty (30) days following the exercise
by Tenant of its option
to
extend the Lease for the Renewal Term, Landlord shall notify Tenant in writing
of its determination of the Prevailing Market Rate for the Renewal Term as
reasonably determined by Landlord ("Landlord's Notice"). Within ten (10) days
after receipt of Landlord's Notice, Tenant shall notify Landlord in writing
of
Tenant's acceptance or rejection of such rate. If Tenant shall accept such
Prevailing Market Rate, Landlord and Tenant shall enter into an amendment to
this Lease acknowledging such renewal and setting forth any terms at variance
with the terms of this Lease. If within the ten (10) day period, Tenant shall
reject such Prevailing Market Rate as determined by Landlord for the Renewal
Term, then within twenty (20) days thereafter, Landlord and Tenant shall meet
at
a mutually acceptable time and place and shall use their reasonable efforts
to
agree upon the Prevailing Market Rate. If Landlord and Tenant shall fail to
agree upon such Prevailing Market Rate within the twenty (20) day period,
Landlord and Tenant shall each appoint an independent commercial leasing broker
licensed in the Maryland area within the next ten (10) days (the "Brokers").
Such Brokers shall deliver their respective estimates of the Prevailing Market
Rate within ten (10) days after being appointed. If the estimates of the
Prevailing Market Rate as quoted by the Brokers are within ten percent (10%)
of
each other, the Prevailing Market Rate shall be deemed to be the average of
the
estimates presented by the Brokers. If the estimates of the Prevailing Market
Rate as quoted by the Brokers differ by more than ten percent (10%), then
Landlord and Tenant shall jointly appoint a third independent commercial leasing
broker licensed in the Maryland area within ten (10) days after the receipt
of
the initial brokers' estimates (the "Third Broker") who shall deliver its
estimate of the Prevailing Market Rate within ten (10) days after being
appointed and such estimate shall be deemed to be the Prevailing Market Rate.
Tenant shall notify Landlord within ten (10) days after receipt of the estimate
of the Prevailing Market Rate (whether as resulting from the average of the
Brokers or from the Third Broker, as applicable), whether Tenant shall accept
such Prevailing Market Rate, whereupon Landlord and Tenant shall enter into
an
amendment to this Lease acknowledging such renewal and setting forth any terms
at variance with the terms of this Lease. If (i) Tenant shall fail to respond
to
Landlord's Notice as provided above, (ii) Tenant shall fail to deliver the
requisite notice exercising its option to extend by the date prescribed above,
(iii) Tenant does not respond within ten (10) days following receipt of
Landlord's Notice or (iv) Tenant does not accept the Prevailing Market Rate
within ten (10) days following Landlord's notification of the Prevailing Market
Rate, as determined either by the average of the Brokers or from the Third
Broker, as applicable, then Tenant's option to extend this Lease for the Renewal
Term shall be void and inoperable. Landlord and Tenant shall each pay the fee
of
the broker designated by them originally and shall split the fees of the Third
Broker.
3.4 Definition
of "Term".
As used
herein, the word "Term" shall refer to the Initial Term and the Renewal Term,
if
applicable.
4. Security
Deposit and Advance Rent.
4.1
Security
Deposit.
Tenant
has this day paid to Landlord the Security Deposit to be held by Landlord as
security for the performance by Tenant of all obligations imposed on Tenant
hereunder. If Tenant shall perform all such obligations, the Security Deposit
shall be refunded to Tenant, without interest, at the end of the Term. If Tenant
shall default in any such obligation, Landlord shall be entitled to apply the
Security Deposit, pro tanto, toward Landlord's damages and Tenant shall
replenish the Security Deposit to the full amount within ten (10) days after
receipt of a written notice from Landlord which sets forth the amount to be
replenished. If the Security Deposit is not fully restored, it shall constitute
an Event of Default (as defined in Section 21) under the terms of this Lease,
and Landlord shall have the benefit of all remedies permitted pursuant to the
terms of this Lease and the laws of the State of Maryland.
4.2
Advance
Rent.
Upon
execution of this Lease, Tenant shall pay Landlord the Advance Rent to be held
as advance rent and security and which Landlord shall be entitled to retain,
without limitation of other remedies, for any defaults of this Lease by Tenant
occurring prior to the commencement of the Term. If no such defaults occur,
the
Advance Rent shall be applied by Landlord against first installments of Base
Rent payable by Tenant hereunder.
5.
Use.
Tenant shall use and occupy the Premises continuously during the Term of this
Lease solely for general office purposes in accordance with applicable zoning
regulations and for no other purpose. Tenant acknowledges that (a) violation
of
the foregoing continuous occupancy and
use
covenant shall be a material breach of this Lease, and (b) Landlord considers
such continuous use and occupancy covenant a valuable contractual interest
with
which no other landlord should interfere by attempting to induce ▇▇▇▇▇▇ to
move
to another building. Tenant recognizes that its occupancy of the Premises
continuously throughout the Term of this Lease provides Landlord a significant
benefit in the perception of the Building by other prospective tenants who
will
negotiate with Landlord for space in the Building in the future as well as
the
perception
of other existing tenants who will be negotiating with Landlord to renew their
leases and remain in the Building.
6. Rent.
6.1
Base
Rent.
Commencing on the Initial Premises Commencement Date, as rent for the Initial
Premises during each year of the Term, Tenant shall pay to Landlord an Annual
Base Rent, in equal monthly installments, in advance on the first day of each
calendar month during the Term, and without deduction, setoff or demand in
accordance with the schedule set forth in Section
1.1.8.A
above.
Commencing on the Remaining Premises Commencement Date, as rent for the
Remaining Premises during each year of the Term, Tenant shall pay to Landlord
an
Annual Base Rent, in equal monthly installments, in advance on the first day
of
each calendar month during the Term, and without deduction, setoff or demand
in
accordance with the schedule set forth in Section
1.1.8.B
above.
In addition to the Base Rent, if the Term for the Initial Premises should
commence on or if the Remaining Premises Commencement Date should fall on a
day
other than the first day of a calendar month, Tenant shall pay to Landlord
upon
the Initial Premises Commencement Date or the Remaining Premises Commencement
Date, as thecase
may
be, a sum equaling that percentage of the applicable monthly rent installment
which equals the percentage of such calendar month falling within the
Term.
6.2
Definitions.
For the
purposes hereof, the following definitions shall apply:
6.2.1
"Property"
shall mean the Building, the land upon which same is situated and all fixtures
and equipment thereon or therein, all commonly owned or shared
appurtenances,
including
but not limited to, parking areas, walkways, landscaping and utilities, whether
located on the land upon which the Building is situated or
elsewhere.
6.2.2
"Building Expenses" shall be all those expenses paid or incurred by Landlord
in
connection with the owning, maintaining, operating and repairing of the Property
or
any
part
thereof, in a manner deemed reasonable and appropriate by Landlord and shall
include, without limitation, the following:
6.2.2.1
All costs and expenses of operating, repairing, lighting, cleaning, and insuring
(including liability for personal injury, death and property damage and
workers'
compensation
insurance covering personnel) the Property or any part thereof, as well as
all
costs incurred in removing snow, ice and debris therefrom and of policing and
regulating traffic with respect thereto, and depreciation of all machinery
and
equipment used therein or thereon,
replacing
or repairing of pavement, parking areas, curbs, walkways, drainage, lighting
facilities, landscaping (including replanting and replacing flowers and other
planting);
6.2.2.2
Electricity, steam and fuel used in lighting, heating, ventilating and air
conditioning and all costs, charges, and expenses incurred by Landlord in
connection with
any
change of any company providing electricity service, including, without
limitation,
maintenance,
repair, installation and service costs associated therewith, as well as all
expenses associated with the installation of any energy or cost savings
devices;
6.2.2.3
Maintenance and repair of mechanical and electrical equipment including heating,
ventilating and air conditioning equipment;
6.2.2.4
Window cleaning and janitor service, including equipment, uniforms, and supplies
and sundries;
6.2.2.5
Maintenance of elevators, stairways, rest rooms, lobbies, hallways and other
Common Areas;
6.2.2.6
Repainting and redecoration of all Common Areas;
6.2.2.7
Repair and maintenance of the parking areas, including without limitation,
the
resurfacing and striping of said areas;
6.2.2.8
Sales or use taxes on supplies or services;
6.2.2.9
Management fees, wages, salaries and compensation of all persons engaged in
the
maintenance, operation or repair of the Property and the provision of amenities
to
all
tenants in the Property (including Landlord's share of all payroll taxes) but
only to the extent they are so engaged;
6.2.2.10
Legal, accounting and engineering fees and expenses, except for
those
related to disputes with tenants or which are a result of andlor are based
on
Landlord's negligence or other tortious conduct;
6.2.2.11
Costs and expenses that may result from compliance with any
governmental
laws or regulations that were not applicable to the Common Areas at the time
same were originally constructed; and
6.2.2.12
All other expenses which under generally accepted accountingprinciples would
be
considered as an expense of maintaining, operating, or repairing
the
Property.
Notwithstanding the foregoing, all expenses (whether or not such expenses are
enumerated on items 1 through 11 of this Section
6.2.2)
which
would be considered capital in nature under generally accepted accounting
principles shall be excluded from "Building
Expenses"
unless same are amortized in accordance with generally accepted accounting
principles.
6.2.3
"Taxes"
shall mean all real property taxes including currently due installments of
assessments, sewer rents, ad valorem charges, water rates, rents and charges,
front foot benefit charges, and all other governmental impositions in the nature
of any of the foregoing in connection with the Project. Excluded from Taxes
are
(i) federal, state or local income taxes, (ii) franchise, gift, transfer,
excise, capital stock, estate or inheritance taxes, and (iii) penalties or
interest charged for late payment of Taxes. If at any time during the Term
the
method of taxation prevailing at the commencement of the Term shall be altered
so as to cause the whole or any part of the items listed in the first sentence
of this subparagraph to be levied, assessed or imposed, wholly or partly as
a
capital levy, or otherwise, on the rents received from the Project, wholly
or
partly in lieu of imposition of or in addition to the increase of taxes in
the
nature of real estate taxes issued against the Project, then the charge to
Landlord resulting from such altered additional method of taxation shall be
deemed to be within the definition of "Taxes."
Tenant acknowledges and agrees that the Project is located on a single lot
and
the real property taxes pertain to the entire Project and are not limited to
the
Building or the Property.
6.2.4
"Common
Areas" shall mean those areas and facilities which may be from time to time
furnished to the Building by Landlord for the non-exclusive general common
use
of tenants and other occupants of the Building, their officers, employees,
and
invitees, including (without limitation) the hallways, stairs, parking
facilities, washrooms, and elevators.
6.2.5
"Lease
Year" shall mean the first twelve (12) month period following the Commencement
Date and each succeeding twelve (12) month period thereafter up to the end
of
the Term; provided, however, that if the Commencement Date shall occur on a
day
other than the first day of a calendar month, then the first Lease Year shall
include that portion of a calendar
month
in
which the Commencement Date occurs in addition to the first twelve (12) month
period.
6.2.6
"Rentable
Area of the Project" shall have the mean the rentable area of any improvements
in the Project as of the date that Tenant is required to make any payments
hereunder. Landlord and Tenant shall enter into a written amendment to this
Lease which
memorializes
the Rentable Area of the Project when any additional improvements are completed
in the Project.
6.3 Rent
Adjustments for Taxes.
6.3.1
Commencing with the third Lease Year, on or before April 30 of each Lease Year,
Landlord shall total the Taxes and shall allocate such Taxes to the Rentable
Area of the Building in the following manner: Taxes for the foregoing calendar
year shall be totaled and such total shall be divided by the total rentable
square feet in the Project thereby deriving the "Cost of Taxes Per Square Foot"
of rentable area.
6.3.2
In
the event that the Cost of Taxes Per Square Foot assessed for any calendar
year
which is wholly or partly within the Term are greater than the Base Year Taxes,
Tenant shall pay to Landlord, as additional rent at the time such Taxes are
due
and payable, the amount of such excess times of Rentable Area of the Premises.
Any additional rent due Landlord under this Section shall be due and payable
within thirty (30) days after Landlord shall have submitted a written statement
to Tenant showing the amount due. For Tenant's obligation for such additional
rent at the beginning or end of the Lease, see Section
6.5.
Landlord
may, in its discretion, make a reasonable estimate of such additional rent
with
respect to Taxes, and require Tenant to pay each month during such year 1/12
of
such amount, at the time of payment of monthly installments of Base Rent. In
such event, Tenant shall pay, or Landlord shall refund or credit to ▇▇▇▇▇▇'s
account, any underpayment or overpayment of such additional rent within thirty
(30) days of Landlord's annual written statement of Taxes due. Tenant shall
have
the right to examine, at ▇▇▇▇▇▇'s sole expense, ▇▇▇▇▇▇▇▇'s records with respect
to any such increases in additional rent; provided, however, that unless Tenant
shall have given Landlord written notice of exception to any such statement
within sixty (60) days after delivery thereof, the same shall be conclusive
and
binding on Tenant. No credit shall be given to Tenant if the cost of Taxes
Per
Square Foot are less than the Base Year Taxes.
All
reasonable expenses incurred by ▇▇▇▇▇▇▇▇ (including attorneys', appraisers'
and
consultants' fees, and other costs) in contesting any increase in Taxes or
any
increase in the assessment of the Project shall be included as an item of Taxes
for the purpose of computing additional rent due hereunder.
6.4
Rent
Adjustments for Building Expenses.
6.4.1
Commencing with the third Lease Year, on or before April 30 of each Lease Year,
Landlord shall compute the Building Expenses for the prior Lease Year and shall
allocate such
costs to the Rentable Area of the Building in the following manner: Building
Expenses shall
be
totaled and such total shall be divided by the total Rentable Area of the
Building thereby de-riving the "Cost of Building Expenses Per Square Foot"
of
rentable area. If Landlord incurs an extraordinary, uncontrollable expense
during the Base Year to determine Building Expenses (e.g.,
excessive snow or blizzard), such extraordinary expenses shall not be included
in the computation of Base Year Building Expenses, but such item shall be
included in Base Year Building Expenses in an amount equal to the average amount
of ordinary expenses for such item by averaging the three (3) prior years'
expenses for such item.
6.4.2
In
the event that the Cost of Building Expenses Per Square Foot of rentable area
for any year which is wholly or partly within the Term are greater than the
Base
Year Building Expenses, Tenant shall pay to Landlord, as additional rent, the
amount of such excess times
the
number of square feet of Rentable Area of the Premises, as set forth
in Section
1
above.
Any such
additional rent shall be due within thirty (30) days after ▇▇▇▇▇▇▇▇ has
submitted a written statement to Tenant showing the amount due. Landlord may,
in
its discretion, make a reasonable estimate of such additional rent with respect
to any calendar year, and require Tenant to pay each month during such year
1/12
of such amount, at the time of payment of monthly installments of Base Rent.
In
such event, Tenant shall pay, or Landlord shall refund or credit to ▇▇▇▇▇▇'s
account, any underpayment or overpayment of such additional rent within thirty
(30) days after ▇▇▇▇▇▇▇▇ has submitted a written statement of actual Building
Expenses for the calendar year. Tenant, at ▇▇▇▇▇▇'s sole expense, shall have
the
right to examine ▇▇▇▇▇▇▇▇'s records with respect to any such increases in
additional rent; provided, however, that unless Tenant shall have given Landlord
written notice of exception to any such statement within sixty (60) days after
delivery thereof, the same shall be conclusive and binding on Tenant. No credit
shall be given to Tenant if the cost of Building Expenses Per Square Foot are
less than the Base Year Building Expenses. Notwithstanding anything to the
contrary contained herein, Landlord shall
use
diligent efforts to keep Building Expenses at reasonable amounts, while
maintaining the Building as a first class office building. Tenant acknowledges
that with regard to certain Building Expenses, some tenants may be paying
various fees directly to the service provider (including, without limitation,
janitorial services and electricity charges), in which event the computation
of
Cost of Building Expenses Per Square Foot for such items shall be determined
by
using the total rentable square footage of the Building reduced by the rentable
square footage of the tenants who are paying such fees directly to the service
provider. If occupancy of the Building during any calendar year, including
the
Base Year for Building Expenses, is less than ninety-five percent (95%), then
Building Expenses for that calendar year shall be "grossed
up" to that amount of Building Expenses that, using reasonable projections,
would normally be expected to be incurred during the calendar year in question
if the Building was ninety-five percent (95%) occupied during the applicable
calendar year period, as determined under generally accepted accounting
principles; it being understood that the written statement submitted to Tenant
shall provide a reasonably detailed description of how the Building Expenses
were grossed up and that only those component expenses that are affected by
variations
in occupancy levels shall be grossed up. Such additional rent shall be computed
on a year-to-year basis.
Landlord
shall use its reasonable efforts to obtain separate invoices for Building
Expense items which pertain to each of the buildings comprising the Project,
as
compared to the entire Project. Notwithstanding anything herein to the contrary,
if for any reason, Landlord is not able to obtain a separate invoice for any
Building Expense item which is limited to the Property or the Building, as
compared to the entire Project and such item does in fact benefit the entire
Project, Landlord shall have the right to invoice Tenant for Tenant's
proportionate share of such amount by using the Tenant's proportionate share
of
the Project (which shall be calculated using the Rentable Area of the Premises
as the numerator and the rentable area of the Project as the denominator),
as of
the date of the invoice; provided, however, that Landlord shall give Tenant
a
credit for the amount which Tenant would have paid for such item, if any, during
the Base Year for Building Expenses. Landlord's invoice shall include reasonable
supporting documentation for
such
amount; Tenant shall pay such amounts within thirty (30) days after receipt
of
an invoice.
6.5
Additional
Rent Payments.
Tenant's
obligation to pay any additional rent after the first Lease Year accruing during
the Term pursuant to Sections
6.3
and 6.4
hereof shall apply pro rata to the proportionate part of a calendar year as
to
Taxes and Building Expenses, in which this Lease begins or ends, for the portion
of each such year during which this Lease is in effect. Such obligation
to make payments of such additional rent shall survive the expiration or sooner
termination of the Term.
6.6
Payments.
All
payments or installments of any rent hereunder and all sums whatsoever due
under
this Lease (including but not limited to court costs and attorneys' fees) shall
be deemed rent and shall be paid to Landlord at the address designated by
Landlord. If any amount of Annual Base Rent or additional rent shall remain
unpaid for five (5) calendar days after such payment becomes due, Tenant shall
pay Landlord, without notice or demand, a late charge equal to the greater
of
(i) $35.00 and (ii) five percent (5%) of the such overdue amount to partially
compensate Landlord for its administrative costs in connection with such overdue
payment; which administrative costs Tenant expressly acknowledges are reasonable
and do not constitute a penalty. In addition, such overdue amounts shall bear
interest at the rate of 18% per annum (but not more than the maximum allowable
legal rate applicable to Tenant) (the "Default Rate") until paid. Additionally,
if any of Tenant's checks for payment of rent or additional rent are returned
to
Landlord for insufficient funds, Tenant shall pay to Landlord as additional
rent
the greater of (i) $50.00 or (ii) the amount of actual charges incurred by
Landlord, for each such check returned for insufficient funds, and if two or
more of Tenant's checks in payment of rent or additional rent due hereunder
are
returned for insufficient funds in any calendar year, Landlord reserves the
right upon ten (10) days advance written notice to Tenant to thereafter require
Tenant to pay all rent and additional rent and other sums whatsoever due under
this Lease in cash, by money order or by certified check or cashier's check.
If
an attorney is employed to enforce Landlord's rights under this Lease, Tenant
shall pay all fees and expenses of such attorney
whether or not legal proceedings are instituted by Landlord. Time is of the
essence in this Lease.
7.Requirements
of Applicable Law.
Landlord
warrants that on the Commencement Date, the
Premises shall comply with all applicable laws, ordinances, rules and
regulations of governmental authorities having jurisdiction over the Property
("Applicable Laws"). Tenant, at its sole cost and expense, shall thereafter
comply promptly with all Applicable Laws now in force or which may hereafter
be
in force, which impose any duty upon Landlord or Tenant with respect to the
use,
occupancy or alteration of the Premises or any part thereof and for the
prevention of fires; provided, however, that Landlord and not Tenant shall
correct all structural defects in the Building necessary to comply with
Applicable Laws, and make all repairs, changes or
alterations necessary because the Building was not constructed in compliance
with any of the Applicable Laws.
8. Certificate
of Occupancy.
Tenant
shall not use or occupy the Premises in violation of any certificate of
occupancy, permit, or other governmental consent issued for the Building. If
any
governmental authority, after the commencement of the Term, shall contend or
declare that the Premises is being used for a purpose which is in violation
of
such certificate of occupancy, permit, or consent, then Tenant shall, upon
five
(5) days' notice from Landlord, immediately discontinue such use of the
Premises. If thereafter the governmental authority asserting such violation
threatens, commences or continues criminal or civil proceedings against Landlord
for Tenant's failure to discontinue such use, in addition to any and all rights,
privileges and remedies given to Landlord under this Lease for default therein,
Landlord shall have the right to terminate this
Lease forthwith. Tenant shall indemnify and hold Landlord harmless of and from
any and all liability for any such violation or violations.
9. Contest-Statute,
Ordinance, Etc.
Tenant
may, after notice to Landlord, by appropriate proceedings conducted promptly
at
▇▇▇▇▇▇'s own expense in Tenant's name and whenever necessary in Landlord's
name,
contest in good faith the validity or enforcement of any such statute,
ordinance, law, order, regulation or requirement and may similarly contest
any
assertion of violation of any certificate of occupancy, permit, or any consent
issued for the Building. Tenant may, pending such contest, defer compliance
therewith if, in the opinion of counsel for Landlord, such deferral shall not
subject either Landlord or the Premises or the Property (or any part thereof)
to
any penalty, fine or forfeiture, and if Tenant shall post a bond with
corporate surety approved by Landlord sufficient, in Landlord's opinion, fully
to indemnify Landlord from loss.
10. Tenant's
Improvements.
Except
to the extent that ▇▇▇▇▇▇▇▇ is responsible for making improvements to the
Premises pursuant to Section
35
of this
Lease, Tenant shall make such non-structural improvements to the Premises as
it
may deem necessary at its sole cost and expense. Tenant shall not make any
alterations, decorations, installations, additions or improvements to the
Premises, including but not limited to, the installation of any fixtures,
amenities, equipment, appliances, or other apparatus, without Landlord's prior
written consent, and then only by contractors or mechanics employed or approved
by Landlord. All such work, alterations, decorations, installations, additions
or improvements shall be done at Tenant's sole expense and at such times and
in
such manner as Landlord may from time to time designate. ▇▇▇▇▇▇▇▇'s consent
to
and/or approval of Tenant's plans and specifications for the aforesaid
improvements shall create no responsibility or liability on the part of Landlord
for their completeness, design sufficiency, or compliance with all laws, rules
and regulations of governmental agencies or authorities. All alterations,
decorations, installations, additions or improvements made by either of the
parties hereto upon the Premises, except movable office furniture put in at
the
expense of Tenant and other items as mutually agreed upon in writing, shall
be
the property of Landlord and shall remain upon and be surrendered with the
Premises at the termination of this Lease without molestation or injury. Upon
request by ▇▇▇▇▇▇▇▇, Tenant, at Tenant's expense, shall remove any and all
special improvements to the Premises or Common Areas
made by or on behalf of Tenant, including, without limitation, supplemental
HVAC
and raised flooring.
| 11. |
Repairs
and Maintenance.
11.1 Tenant's
Care of the Premises and Building.
During the Term Tenant shall:
|
(i) keep
the
Premises and the fixtures, appurtenances and improvements therein in good order
and condition;
(ii) make
repairs and replacements to the Premises required because of Tenant's misuse
or
primary negligence, except to the extent that the repairs or replacements are
covered by ▇▇▇▇▇▇▇▇'s insurance as required hereunder;
(iii) repair
and replace special equipment or decorative treatments installed by or at
Tenant's request and that serve the Premises only, except to the extent the
repairs or replacements are needed because of Landlord's misuse or primary
negligence, and are not covered by ▇▇▇▇▇▇'s insurance as required
hereunder;
(iv) pay
for
all damage to the Building, its fixtures and appurtenances, as well as all
damages sustained by Tenant or occupants of the Building due to any waste,
misuse or neglect of the Premises, its fixtures and appurtenances by Tenant,
except to the extent that the repair of such damage is covered by ▇▇▇▇▇▇▇▇'s
insurance as required hereunder to the extent that Landlord actually receives
proceeds therefrom; and
(v) not
commit waste.
In
addition Tenant shall not place a load upon any floor of the Premises exceeding
the floor load per square foot area which such floor was designed to carry
and
which may be allowed under Applicable Laws. Landlord reserves the right to
prescribe the weight and position of all heavy equipment brought onto the
Premises and prescribe any reinforcing required under the circumstances, all
such reinforcing to be at ▇▇▇▇▇▇'s expense.
11.2
Landlord's
Repairs.
Except
for the repairs and replacements that Tenant is required to make pursuant to
Section
11.1
above,
Landlord shall make all other repairs and replacements to the Premises, Common
Areas and Building (including Building fixtures and equipment) as shall be
reasonably deemed necessary to maintain the Building in a condition comparable
to other first class suburban office buildings in the Baltimore-Washington
corridor area. This maintenance shall include the roof, foundation, exterior
walls, interior structural walls, all structural components, and all systems
such as mechanical, electrical, multi-tenant HVAC, and plumbing. The costs
associated with such repairs shall be deemed a part of Building Expenses;
provided, however, that costs of all of such repairs which would be considered
capital in nature under generally accepted accounting principles shall be paid
by Landlord. There shall be no allowance to Tenant for a diminution of rental
value, no abatement of rent, and no liability on the part of Landlord by reason
of inconvenience, annoyance or injury to business arising from Landlord, Tenant
or others making any repairs or performing maintenance as provided for
herein.
11.3
Time
for Repairs.
Repairs
or replacements required pursuant to Section
11.1
and
11.2
above
shall be made within a reasonable time (depending on the nature of the repair
or
replacement needed - generally no more than fifteen (15) days) after receiving
notice or having actual knowledge of the need for a repair or
replacement.
11.4
Surrender
of the Premises.
Upon the
termination of this Lease, without the need for prior notice from Landlord,
Tenant shall surrender the Premises to Landlord in the same broom clean
condition that the Premises were in on the Commencement Date except
for:
(i) ordinary
wear and tear;
(ii) damage
by
the elements, fire, and other casualty unless Tenant would be required to repair
under the provisions of this Lease;
(iii)
damage arising from any cause not required to be repaired or replaced by Tenant;
and
(iv) alterations
as permitted by this Lease unless consent was conditioned on their
removal.
On
surrender Tenant shall remove from the Premises its personal property, trade
fixtures and any alterations required to be removed pursuant to the terms of
this Lease and repair any damage to the Premises caused by this removal. Any
items not removed by Tenant as required above
shall be considered abandoned. Landlord may dispose of abandoned items as
Landlord chooses and ▇▇▇▇ ▇▇▇▇▇▇ for the cost of their disposal.
12. Conduct
on Premises.
Tenant
shall not do, or permit anything to be done in the Premises, or bring or keep
anything therein which shall, in any way, increase the rate of fire insurance
on
the Building, or invalidate or conflict with the fire insurance policies on
the
Building, fixtures or on property kept therein, or obstruct or interfere with
the rights of Landlord or of other tenants, or in any other way injure or annoy
Landlord or the other tenants, or subject Landlord to any liability for injury
to persons or damage to property, or interfere with the good order of the
Building, or conflict with Applicable Laws, or the Maryland Fire Underwriters
Rating Bureau. Tenant agrees that any increase of fire insurance premiums on
the
Building or contents caused by the occupancy of Tenant and any expense or cost
incurred in consequence of negligence or carelessness or the willful action
of
Tenant, Tenant's employees, agents, servants, or invitees shall, as they accrue
be added to the rent heretofore reserved and be paid as a part
thereof.,
and
Landlord shall have all the rights and remedies for the collection of same
as
are conferred upon Landlord for the collection of rent provided to be paid
pursuant to the terms of this Lease.
13. Insurance.
13.1
Tenant's
Insurance.
Tenant
shall keep in force at its own expense, so long as this Lease remains in effect,
(a) public liability insurance, including insurance against assumed or
contractual liability under this Lease, with respect to the Premises, to afford
protection with limits, per person and for each occurrence, of not less than
Two
Million Dollars ($2,000,000), combined single limit, with respect to personal
injury and death and property damage, such insurance to provide for only a
reasonable deductible, (b) all-risk property and casualty insurance, including
theft, written at replacement cost value and with replacement cost endorsement,
covering all of Tenant's personal property in the Premises and all improvements
and installed in the Premises by or on behalf of Tenant whether pursuant to
the
terms of Section
35,
Section
10,
or
otherwise, such insurance to provide for only a reasonable deductible, (c)
if,
and to the extent, required by law, workmen's compensation or similar insurance
offering statutory coverage and containing statutory limits (d) shall insure
all
plate and other interior glass in the Premises for and in the name of Landlord
and (e) business interruption insurance in an amount sufficient to reimburse
Tenant for loss of earnings attributable to prevention of access to the Building
or the Premises for a period of at least twelve (12) months. Such policies
shall
be maintained in companies and in form reasonably acceptable to Landlord and
shall be written as primary policy coverage and not contributing with, or in
excess of, any coverage which Landlord shall carry. Tenant shall deposit the
policy or policies of such required insurance or certificates thereof with
Landlord prior to the Commencement Date, which policies shall name Landlord
or
its designee and, at the request of Landlord, its mortgagees, as additional
insured and shall also contain a provision stating that such policy or policies
shall not be canceled except after thirty (30) days' written notice to Landlord
or its designees. All such policies of insurance shall be effective as of the
date Tenant occupies the Premises and shall be maintained in force at all times
during the Term of this Lease and all other times during which Tenant shall
occupy the Premises. In addition to the foregoing insurance coverage, Tenant
shall require any contractor retained by it to perform work on the Premises
to
carry and maintain, at no expense to Landlord, during such times as contractor
is working in the Premises, a non-deductible (i) comprehensive general liability
insurance policy, including, but not limited to, contractor's liability
coverage, contractual liability coverage, completed operations coverage, broad
form property damage endorsement and contractor's protective liability coverage,
to afford protection with limits per person and for each occurrence, of not
less
than Two Hundred Thousand Dollars ($200,000.00), combined single limit, with
respect to personal injury and death and property damage, such insurance to
provide for no deductible, and (ii) workmen's compensation insurance or similar
insurance in form and amounts as required by law. In the event of damage to
or
destruction of the Premises and the termination of this Lease by Landlord
pursuant to Section
18
herein,
▇▇▇▇▇▇ agrees that it shall pay Landlord all of its insurance proceeds relating
to improvements made in the Premises by or on behalf of Tenant whether pursuant
to the terms of Section
35, Section
10,
or
otherwise. If Tenant fails to comply with its covenants made in this Section,
if
such insurance would terminate or if Landlord has reason to believe such
insurance is about to be terminated, Landlord may at its option cause such
insurance as it in its sole judgment deems necessary to be issued, and in such
event Tenant agrees to pay promptly upon ▇▇▇▇▇▇▇▇'s demand, as additional rent
the premiums for such insurance.
13.2
Landlord's
Insurance.
Landlord
shall keep in force at its own expense (a) contractual and comprehensive general
liability insurance, including public liability and property damage, with a
minimum combined single limit of liability of Two Million Dollars
($2,000,000.00) for personal injuries or death of persons occurring in or about
the Building and Premises, and (b) all-risk property and casualty insurance
written at replacement cost value covering the Building and all of Landlord's
improvements in and about same.
13.3
Waiver
of Subrogation.
Each
party hereto waives claims arising in any manner in its favor and against the
other party and agrees that neither party hereto shall be liable to the other
party or to any insurance company (by way of subrogation or otherwise) insuring
the other party for any loss or damage to the Building, the Premises or other
tangible property, or any resulting loss of income, or losses under worker's
compensation laws and benefits, or against liability on or about the Building,
even though such loss or damage might have been occasioned by the negligence
of
such party, its agents or employees if any such loss or damage is covered by
insurance benefiting the party suffering such loss or damage as was required
to
be covered by insurance carried pursuant to this Lease. Landlord shall cause
each insurance policy carried by it insuring against liability on or about
the
Building or insuring the Premises and the Building or income resulting therefrom
against loss by fire or any of the casualties covered by the all-risk insurance
carried by it hereunder to be written in such a manner as to provide that the
insurer waives all right of recovery by way of subrogation against Tenant in
connection with any loss or damage covered by such policies. Tenant shall cause
each insurance policy carried by it insuring against liability or insuring
the
Premises (including the contents thereof and ▇▇▇▇▇▇'s Improvements installed
therein by Tenant or on its behalf) against loss by fire or any of the
casualties covered by the all-risk insurance required hereunder to be written
in
such a manner as to provide that the insurer waives all right of recovery by
way
of subrogation against Landlord in connection with any loss or damage covered
by
such policies.
14. Rules
and Regulations.
Tenant
shall be bound by the rules and regulations set forth on the schedule attached
hereto as Exhibit
"B"
and made
a part hereof. Landlord shall have the right, from time to time, to issue
additional or amended rules and regulations regarding the use of the Building,
so long as the rules shall be reasonable and non-discriminatory between tenants.
When so issued the same shall be considered a part of this Lease and Tenant
covenants that the additional or amended rules and regulations shall likewise
be
faithfully observed by Tenant, the employees of Tenant and all persons invited
by Tenant into the Building, provided, that the additional or amended rules
are
made applicable to all office tenants similarly situated as Tenant. Landlord
shall not be liable to Tenant for the violation of any of the rules and
regulations, or the breach of any covenant or condition in any lease, by any
other tenant in the
Building.
15. Mechanics'
Liens.
Tenant
shall not do or suffer to be done any act, matter or thing whereby ▇▇▇▇▇▇'s
interest in the Premises, or any part thereof, may be encumbered by any
mechanics' lien. Tenant shall discharge or bond off, within ten (10) days after
the date of filing, any mechanics' liens filed against ▇▇▇▇▇▇'s interest in
the
Premises, or any part thereof, purporting to be for labor or material furnished
or to be furnished to Tenant. Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and no mechanics'
or other lien for labor or materials shall attach to or affect the reversionary
or other estate or interest of Landlord in and to the Premises, or the
Property.
16. Tenant's
Failure to Repair.
In the
event that Tenant fails after reasonable prior written notice from Landlord,
to
keep the Premises in a good state of condition and repair pursuant to
Section
11
above,
or to do any act or make any payment required under this Lease or otherwise
fails to comply herewith, Landlord may, at its option (but without being obliged
to do so) immediately, or at any time thereafter and without notice, perform
the
same for the account of Tenant, including the right to enter upon the Premises
at all reasonable hours to make such repairs, or do any act or make any payment
or compliance which Tenant has failed to do, and upon demand, Tenant shall
reimburse Landlord for any such expense incurred by Landlord including but
not
limited to any costs, damages and counsel fees. Any moneys expended by Landlord,
as aforesaid, shall be deemed additional rent, collectible as such by Landlord.
All rights given to Landlord in this Section shall be in addition to any other
right or remedy of Landlord herein contained.
17. Property
-- Loss, Damage.
Landlord, its agents and employees shall not be liable to Tenant for (i) any
damage or loss of property of Tenant placed in the custody of
persons
employed
to provide services for or stored in or about the Premises and/or the Building,
unless such damage or loss is the result of the negligence of Landlord, (ii)
any
injury or damage to persons, property or the business of Tenant resulting from
a
latent defect in or material change in
the
condition of the Building, and (iii) interference with the light, air, or other
incorporeal hereditaments of the Premises.
18. Destruction
-- Fire or Other Casualty.
In case
of partial damage to the Premises by fire or other casualty insured against
by
Landlord, Tenant shall give immediate notice thereof to Landlord, who shall
thereupon cause damage to all property owned by it to be repaired with
reasonable speed at expense of Landlord, due allowance being made for reasonable
delay which may arise by reason of adjustment of loss under insurance policies
on the part of Landlord and/or Tenant, and for reasonable delay on account
of
"labor troubles" or any other cause beyond ▇▇▇▇▇▇▇▇'s control, and to the extent
that the Premises is rendered unten=able the rent shall proportionately ▇▇▇▇▇
from the date of such casualty, provided the damage above mentioned occurred
without the fault or neglect of Tenant, ▇▇▇▇▇▇'s servants, employees, agents
or
visitors. If such partial damage is due to the fault or neglect of Tenant,
or
Tenant's servants, employees, agents, or invitees, the damage shall be repaired
by Landlord to the extent of Landlord's insurance coverage, but there shall
be
no apportionment or abatement of rent. In the event the damage shall be so
extensive to the whole Building as to render it uneconomical, in Landlord's
reasonable opinion, to restore for its present uses and Landlord shall decide
not to repair or rebuild the Building, this Lease, at the option of Landlord
or
Tenant, upon written notice to the other party, shall be terminated upon written
notice to Tenant and the rent shall, in such event, be paid to or adjusted
as of
the date of such damage, and the terms of this Lease shall expire by lapse
of
time and conditional limitation upon the third day after such notice is mailed,
and Tenant shall thereupon vacate the Premises and surrender the same to
Landlord, but no such termination shall release Tenant from any liability to
Landlord arising from such damage or from any
breach of the obligations imposed on Tenant hereunder, or from any obligations
accrued hereunder prior to such termination.
19. Eminent
Domain.
If (1)
the whole or more than fifty percent (50%) of the floor area of the Premises
shall be taken or condemned by Eminent Domain for any public or quasi-public
use
or purpose, and either party shall elect, by giving written notice to the other,
or (2) more than twenty-five percent (25%) of the floor area of the Building
shall be so taken, and Landlord shall elect, in its sole discretion, by giving
written notice to Tenant, any written notice to be given not more than sixty
(60) days after the date on which title shall vest in such condemnation
proceeding, to terminate this Lease, then, in either such event, the Term of
this Lease shall cease and terminate as of the date of title vesting. In case
of
any taking or condemnation, whether or not the Term of this Lease shall cease
and terminate, the entire award shall be the property of Landlord, and Tenant
hereby assigns to Landlord all its right, title and interest in and to any
such
award, except that Tenant shall be entitled to claim, prove and receive in
the
proceedings such awards
as
may be allowed for moving expenses, loss of profit and fixtures and other
equipment installed by it which shall not, under the terms of this Lease, be
or
become the property of Landlord
at the termination hereof, but only if such awards shall be made by the
condemnation, court
or
other authority in addition to, and be stated separately from, the award made
by
it
for
the
Property or part thereof so taken.
20. Assignment.
So long
as Tenant is not in default of any of the terms and conditions hereof, after
the
giving of all required notices and the expiration of all cure periods, Landlord
shall not unreasonably withhold its consent to an assignment of this Lease
or
sublease of the Premises for any of the then remaining portion of the unexpired
Term provided: (i) the net assets of the assignee or sublessee shall not be
less
than the net assets of Tenant at the time of the signing
of this Lease; (ii) in the event of an assignment, such assignee shall assume
in
writing all of Tenant's obligations under this Lease; (iii) in the event of
a
sublease, such sublease shall in all respects
be subject to and in conformance with the terms of this Lease; (iv) the proposed
assignee or sublessee shall not be occupying other space in the Building, nor
shall it be a prospective tenant either then negotiating with Landlord or having
negotiated with Landlord for premises within the prior six (6) month period;
and
(v) in all events Tenant continues to remain liable on this Lease for the
performance of all terms, including but not limited to, payment of all
rent
due
hereunder. Landlord and ▇▇▇▇▇▇ acknowledge and agree that it shall not be
unreasonable for Landlord to withhold its consent to an assignment if in
Landlord's sole business judgment, the assignee lacks sufficient business
experience or net worth to successfully operate its business within the Premises
in accordance with the terms, covenants and conditions of this Lease. If this
Lease be assigned, or if the Premises or any part thereof be sublet or occupied
by anybody other than Tenant, Landlord may, after default by Tenant, collect
rent from the assignee, subtenant or occupant and apply the net amount collected
to the rent herein reserved, but no such collection shall be deemed a waiver
of
this covenant, or the acceptance of the assignee, subtenant or occupant as
tenant, or a release of Tenant from the further observance and performance
by
Tenant of the covenants herein contained. Fifty percent (50%) of any profit
or
additional consideration or rent in excess of the Base Rent or additional rent
payable by Tenant hereunder which is payable to Tenant as a result of any
assignment or subletting shall be paid to Landlord as additional rent when
received by ▇▇▇▇▇▇. No assignment or sublease, regardless of whether ▇▇▇▇▇▇▇▇'s
consent has been granted or withheld, shall be deemed to release Tenant from
any
of its obligations nor shall the same be deemed to release any person
guaranteeing the obligations of Tenant hereunder from their obligations as
guarantor.
Notwithstanding
the foregoing, without the consent and approval of Landlord, Tenant shall have
the right to assign or sublease the Premises or any portion thereof without
Landlord's consent (however, Tenant shall endeavor to provide ten (10) days'
prior written notice thereof along with a true and complete copy of the sublease
or assignment document) to any subsidiary or affiliate of Tenant or in the
event
of a merger or a sale of all or substantially all of the Tenant's assets, and
in
any event shall notify Landlord in writing within thirty (30) days of the
effective date of such assignment or sublease. For the purposes hereof,
"affiliate" shall mean an entity or individual which controls, is controlled
by
or is under the common control with Tenant. Tenant shall remain liable under
the
terms hereof if Tenant exercises its rights under this paragraph to the extent
it survives such corporate event.
21.
Default;
Remedies; Bankruptcy of Tenant.
Any one
or more of the following events shall constitute an "Event of Default"
hereunder, at Landlord's election: (a) the sale of Tenant's interest in the
Premises under attachment, execution or similar legal process or, the
adjudication of Tenant as a bankrupt or insolvent, unless such adjudication
is
vacated within thirty (30) days; (b) the filing of a voluntary petition
proposing the adjudication of Tenant (or any guarantor of Tenant's obligations
hereunder) as a bankrupt or insolvent, or the reorganization of Tenant (or
any
such guarantor), or an arrangement by ▇▇▇▇▇▇ (or any such guarantor) with its
creditors, whether pursuant to the Federal Bankruptcy Code or any similar
federal or state proceeding, unless such petition is filed by a party other
than
Tenant (or any such guarantor) and is with-drawn or dismissed within thirty
(30)
days after the date of its filing; (c) the admission, in writing, by ▇▇▇▇▇▇
(or
any such guarantor) of its inability to pay its debts when due; (d) the
appointment of a receiver or trustee for the business or property of Tenant
(or
any such guarantor), unless such appointment is vacated within thirty (30)
days
of its entry; (e) the making by Tenant (or any such guarantor) of an assignment
for the benefit of its creditors, or if, in any other manner, ▇▇▇▇▇▇'s interest
in this Lease shall pass to another by operation of law; (f) the failure of
Tenant to pay any rent, additional rent or other sum of money when due and
such
failure continues for a period of ten (10) days after receipt of written notice
that the same is past due hereunder; (g) if Tenant fails to pay any rent or
additional rent when due after Landlord shall have given Tenant written notice
with respect to such non-payment twice in any twelve (12) month period as
provided in subsection (f) above; (h) Tenant shall fail to move into or take
possession of the Premises within thirty (30) days after commencement of the
Term or having taken possession shall thereafter abandon and/or vacate the
Premises; and (i) the default by Tenant in the performance or observance of
any
covenant or agreement of this Lease (other than a default involving the payment
of money), which default is not cured within thirty (30) days after the giving
of notice thereof by Landlord, unless such default is of such nature that it
cannot be cured within such thirty (30) day period, in which case no Event
of
Default shall occur so long as Tenant shall commence the curing of the default
within such thirty (30) day period and shall thereafter diligently prosecute
the
curing of same.
Upon
the
occurrence and continuance of an Event of Default, Landlord, with such notice
to
Tenant as provided for by law or as expressly provided for herein, may do any
one or more of the following: (a) sell, at public or private sale, all or any
part of the goods, chattels, fixtures and other personal property belonging
to
Tenant which are or may be put into the Premises during the
Term,
whether or not exempt from sale under execution or attachment (it being agreed
that the property shall at all times be bound with a lien in favor of Landlord
and shall be chargeable for all rent and for the fulfillment of the other
covenants and agreements herein contained), and apply the proceeds of such
sale,
first, to the payment of all costs and expenses of conducting the sale or caring
for or storing the property; second, toward the payment of any indebtedness,
including, without limitation, indebtedness for rent, which may be or may become
due from Tenant to Landlord; and third, to pay Tenant, on demand in writing,
any
surplus remaining after all indebtedness of Tenant to Landlord has been fully
paid; (b) perform, on behalf and at the expense of Tenant, any obligation of
Tenant under this Lease which ▇▇▇▇▇▇ has failed to perform and of which Landlord
shall have given Tenant notice, the cost of which performance by ▇▇▇▇▇▇▇▇,
together, with interest thereon at the rate of eighteen percent (18%) per annum,
from the date of such expenditure, shall be deemed additional rent and shall
be
payable by Tenant to Landlord upon demand; (c) elect to terminate this Lease
and
the tenancy created hereby by giving notice of such election to Tenant, and
on
notice reenter the Premises, by summary proceedings or otherwise, and remove
Tenant and all other persons and property from the Pre-mises, and store such
property in a public warehouse or elsewhere at the cost and for the account
of
Tenant, without resort to legal process and without Landlord being deemed guilty
of trespass or becoming liable for any loss or damage occasioned thereby; and
also the right, but not the obligation, to re-let the Premises for any unexpired
balance of the Term, and collect the rent therefor. In the event of such
re-letting by Landlord, the re-letting shall be on such terms, conditions and
rental as Landlord may deem proper, and the proceeds that may be collected
from
the same, less the expense of re-letting (including reasonable leasing fees
and
commissions and reasonable costs of renovating the Premises), shall be applied
upon Tenant's rental obligation as set forth in this Lease for the unexpired
portion of the Term. Tenant shall have no further right of possession of the
Premises; and (d) exercise any other legal or equitable right or remedy which
it
may have at law or in equity. Notwithstanding the provisions of clause (b)
above
and regardless of whether an Event of Default shall have occurred, Landlord
may
exercise the remedy described in clause (b) without any notice to Tenant if
Landlord, in its good faith judgment, believes it would be materially injured
by
the failure to take rapid action, or if the unperformed obligation of Tenant
constitutes an emergency.
To
the
extent permitted by law, Tenant hereby expressly waives any and all rights
of
redemption, granted by or under any present or future laws in the event of
▇▇▇▇▇▇'s being evicted or dispossessed for any cause, or in the event of
Landlord's obtaining possession of the Premises, by reason of the violation
by
Tenant of any of the covenants and conditions of this Lease, or otherwise.
Landlord and Tenant hereby expressly waive trial by jury in any action or
proceeding or counterclaim brought by either party hereto against the other
party on any and every matter, directly or indirectly arising out of or with
respect to this Lease, including, without limitation, the relationship of
Landlord and ▇▇▇▇▇▇, the use and occupancy by Tenant of the Premises, any
statutory remedy andlor claim of injury or damage regarding this
Lease.
Any
costs
and expenses incurred by Landlord (including, without limitation, reasonable
attorneys' fees) in enforcing any of its rights or remedies under this Lease
shall be deemed to be additional rent and shall be repaid to Landlord by Tenant
upon demand.
Notwithstanding
any of the other provisions of this Lease, in the event Tenant shall voluntarily
or involuntarily come under the jurisdiction of the Federal Bankruptcy Code
and
thereafter Tenant or its trustee in bankruptcy, under the authority of and
pursuant to applicable provisions thereof, shall have the power and so using
same determine to assign this Lease, Tenant agrees that (i) Tenant or its
trustee shall provide to Landlord sufficient information enabling it to
independently determine whether Landlord will incur actual and substantial
detriment by reason of such assignment and (ii) "adequate assurance of future
performance" under this Lease, as that term is generally defined under the
Federal Bankruptcy Code, shall be provided to Landlord by ▇▇▇▇▇▇ and its
assignee as a condition of the assignment.
Notwithstanding
anything to the contrary contained herein, Tenant shall be considered in
"Habitual Default" of this Lease upon (a) Tenant's failure, on two (2) or more
occasions during any twelve month period to pay when due any installment of
Base
Rent, additional rent or any other sum required by the terms of this Lease,
or
upon (b) Tenant's failure, on two (2) or more occasions during any twelve month
period to comply with any term, covenant or condition of this Lease after
written notice by Landlord to Tenant. Upon the occurrence of an event of
Habitual
Default on the part of Tenant, then without limiting any other rights or
remedies to which Landlord may be entitled as a result of such defaults: (i)
Tenant shall immediately be deemed to have relinquished any and all rights
of
renewal, rights to terminate, rights of first offer or rights of first refusal
or similar rights granted or to be granted under the terms of this Lease or
any
amendment hereto ; and (ii) in the event of a monetary event of Habitual
Default, Tenant shall thereafter pay all Base Rent and additional rent and
other
sums whatsoever due under this Lease in cash, by money order or by certified
check or cashier's check.
22. Damages.
If this
Lease is terminated by Landlord pursuant to Section
21,
Tenant
shall, nevertheless, remain liable for all rent and damages which may be due
or
sustained prior to such termination, and all reasonable costs, fees and expenses
including, but not limited to, attorneys' fees, costs and expenses incurred
by
Landlord in pursuit of its remedies hereunder, or in renting the Premises to
others from time to time and additional damages (the "Liquidated
Damages"), which shall be an amount equal to the total rent which, but for
termination of this Lease, would have become due during the remainder of the
Term, less the amount of rent, if any, which Landlord shall receive during
such
period from others to whom the Premises may be rented (other than any additional
rent received by Landlord as a result of any failure of such other person to
perform any of its obligations to Landlord), in which case such Liquidated
Damages shall be computed and payable in monthly installments, in advance on
the
first day of each calendar month following termination of the Lease and
continuing until the date on which the Term would have expired but for such
termination, and any suit or action brought to collect any such Liquidated
Damages for any month shall not in any manner prejudice the right of Landlord
to
collect any Liquidated Damages for any subsequent month by a similar
proceeding.
If
this
Lease is terminated pursuant to Section
21,
Landlord
may relet the Premises or any part thereof, alone or together with other
premises, for such term(s) which may be greater or less than the period which
otherwise would have constituted the balance of the Term and on such terms
and
conditions (which may include concessions, free rent and/or alterations of
the
Premises) as Landlord, in its sole discretion, may determine, but Landlord
shall
not be liable for, nor shall Tenant's obligations hereunder be diminished by
reason of, any failure by Landlord to relet the Premises or any failure by
Landlord to collect any rent due upon such reletting.
23. Services
and Utilities.
Landlord
shall provide the following listed services and utilities, namely:
(a) heating,
ventilation, and air conditioning ("HVAC")
for the Premises during"Normal
Business Hours" (as defined below) to maintain temperatures for comfortable
use
and occupancy;
(b) electric
energy in accordance with Section
24
following;
(c) automatic
passenger elevators providing adequate service leading to the floor on which
the
Premises is located;
(d) evening,
unescorted janitorial services to the Premises including removal of
trash;
(e) hot
and
cold water sufficient for drinking, lavatory toilet and ordinary cleaning
purposes
from fixtures either within the Premises (if provided pursuant to this Lease)
or
on the floor on which the Premises is located;
(f) replacement
of lighting tubes, lamp ballasts and bulbs;
(g) extermination
and pest control when and if necessary; and
(h) maintenance
of Common Areas in a manner comparable to other first class suburban office
buildings in the Baltimore-Washington corridor.
Notwithstanding
the foregoing, if at any time during the Term, Landlord shall, after reasonable
investigation determine that trash and similar waste generated by Tenant and/or
emanating from the Premises is in excess of that of other standard office
tenants within the Building leasing a premises of the same or similar size
to
that of the Premises, Landlord shall ▇▇▇▇ ▇▇▇▇▇▇
and Tenant shall pay to Landlord as additional rent hereunder within thirty
(30)
days of the date of Landlord's invoice for the same, those costs and expenses
of
trash removal which are reasonably attributable to such excess trash and similar
waste generated by Tenant and/or emanating from the Premises. "Normal
Business Hours" as used herein is defined from 8:00 a.m. to 6:00 p.m. on
business days and from 8:00 a.m. to 1:00 p.m. on Saturdays. Landlord shall
have
no responsibility to provide any services under (a) above except during Normal
Business Hours unless arrangements for after-hours services have been made
pursuant to terms and conditions acceptable to Landlord and embodied in a
separate written agreement between Landlord and Tenant. Landlord reserves the
right to require Tenant, at Tenant's expense, to install separate meters to
monitor electrical consumption if Landlord determines, in its reasonable
discretion that such monitoring is necessary based on Tenant's electrical usage.
Landlord reserves the right to stop service of the HVAC, elevator, plumbing
and
electric systems, when necessary, by reason of accident, or emergency, or for
repairs, alterations, replacements, or improvements, which in the judgment
of
Landlord are desirable or necessary to be made, until the repairs, alterations,
replacements, or improvements shall have been completed. Landlord shall have
no
responsibility or liability for failure to supply HVAC, elevator, plumbing,
cleaning, and electric service, during the period when prevented from so doing
by laws, orders, or regulations of any Federal, State, County or Municipal
authority or by strikes, accidents or by any other cause whatsoever beyond
Landlord's control. Landlord's obligations to supply HVAC are subject to
applicable laws and regulations as to energy conservation and other such
restrictions. Landlord acknowledges that Tenant will require supplemental HVAC
for the Premises, which may be installed subject to the following conditions:
1)
any maintenance repair and/or replacement required for such supplemental service
shall be performed by Landlord but the cost of such maintenance repair and/or
replacement (including labor and materials) shall be paid by Tenant as
additional rent; (2) the supplemental units shall be installed by Landlord
and
submetered, both at Tenant's sole cost and expenses; and
(3) the
submeter will be read by Landlord and billed back to Tenant, which Tenant shall
pay, as
additional rent, within thirty (30) days of Tenant's receipt
therefore.
24.
Electric
Current.
Throughout the Term Landlord shall furnish Tenant without additional charge
during Normal Business Hours (as defined in Section
23)
a
reasonable amount of electric current at 110 volts ("Normal
Usage Amount") for lighting purposes within the Premises and the powering of
a
normal amount of office equipment and appliances. "Normal Usage Amount" is
defined for purposes of this Lease to mean electric power supplied at the rate
of three (3) ▇▇▇▇▇ per square foot of Premises. In this regard Tenant agrees
as
follows:
(1) If
Landlord reasonably determines based upon engineering studies of electrical
load
consumed that Tenant is materially exceeding the Normal Usage Amount Tenant
shall pay
to
Landlord such amounts as additional rent as will equitably reimburse Landlord
for the cost of the extra electric power so consumed by Tenant;
(2) If
Tenant
shall desire to place and install in the Premises electric equipment or
appliances other than normal and typical to general office usage it shall pay
for such installations including any additional electric lines and facilities
required and shall pay for the electric power used in such equipment if same
exceeds Normal Usage Amount.
▇▇▇▇▇▇▇▇
has advised Tenant that present Baltimore Gas & Electric ("Electric Service
Provider") is the utility company selected by Landlord to provide electricity
to
the Building. Notwithstanding the foregoing, if permitted by law, Landlord
shall
have the right at any time and from time to time during the Term to either
contract for service from a different company or companies providing electricity
service (each such company shall hereinafter be referred to as an "Alternative
Service Provider") or continue to contract for service from the Electric Service
Provider.
Tenant
shall cooperate with Landlord, the Electric Service Provider and any Alternate
Service Provider at all times and, as reasonably necessary, shall allow
Landlord, the Electric Service Provider, and any Alternative Service Provider
reasonable access to the Building's electric lines, feeders, risers, wiring
and
any other machinery within the Premises, provided that
Landlord
shall use its reasonable efforts to minimize its interference with Tenant's
business in the Premises.
25. Telephone
and Telecommunications.
▇▇▇▇▇▇▇▇
has arranged for the installation of telephone service within the Building
to
the ground floor telephone utility closet and conduit to the ground floor
telephone and electrical riser closets. Tenant shall be responsible for
contacting the utility company supplying the telephone service and arranging
to
have such telephone facilities as it may desire to be extended and put into
operation in the Premises, including without limitation, obtaining a low voltage
permit for phone and data wiring. Tenant acknowledges and agrees that all
telephone and telecommunications services desired by Tenant shall be ordered
and
utilized at the sole expense of Tenant. All costs related to installation and
the provision of such service shall be borne and paid for directly by ▇▇▇▇▇▇.
Upon request by ▇▇▇▇▇▇▇▇, Tenant, at Tenant's expense, shall remove the
telephone facilities at the expiration or sooner termination of the Term. Tenant
shall obtain the requisite permit and complete the ceiling work in cooperation
with Landlord in order not to interfere with or delay the completion of the
Tenant Improvements by Landlord pursuant to Section
35,
including, without limitation, the closing of the ceiling and the carpet
installation, if applicable. Landlord will allow Tenant access for wiring,
including electric, data and telecom, within the Building's public areas and
designated chases, but will not guarantee access of the wiring through another
tenant's space. Tenant, at Tenant's expense, shall be responsible for the
relocation and its associated costs, if requested, of any data, telecom or
electrical wiring that runs through another tenant's space, including the plenum
area or otherwise.
In
the
event Tenant wishes to utilize the services of a telephone or telecommunications
provider whose equipment is not servicing the Building at such time Tenant
wishes to install its telecommunications equipment serving the Premises
("Provider"),
no such Provider shall be permitted to install its lines or other equipment
without first securing the prior written consent of Landlord, which consent
shall not be unreasonably withheld. Prior to the commencement of any work in
or
about the Building by the Provider, the Provider shall agree to abide by such
rules and regulations, job site rules, and such other requirements as reasonably
determined by Landlord to be necessary to protect the interest of the Building
and Property, the other tenants and occupants of the Building and Landlord,
including, without limitation, providing security in such form and amount as
reasonable determined by Landlord. Each Provider must be duly licensed, insured
and reputable. Landlord shall incur no expense whatsoever with respect to any
aspect of Provider's provision of its services, including without limitation,
the costs of installation, materials and service.
In
addition, Landlord reserves exclusively to itself and its successors and assigns
the right to install, operate, maintain, repair, replace and remove fiber optic
cable and conduit and associated equipment and appurtenances within the Building
and the Premises so as to provide telecommunications service to and for the
benefit of tenants and other occupants of the Building.
26. Acceptance
of Premises.
Tenant
shall have reasonable opportunity, provided it does not thereby interfere with
▇▇▇▇▇▇▇▇'s work, to examine the Premises to determine the condition thereof.
Upon taking possession of the Premises, Tenant shall be deemed to have accepted
same as being satisfactory and in the condition called for hereunder, except
for
latent defects and punch list items previously noted to Landlord.
27. Inability
to Perform.
This
Lease and the obligation of Tenant to pay rent hereunder and perform all of
the
other covenants and agreements hereunder on the part of Tenant to be per-formed
shall in no way be affected, impaired or excused because Landlord is unable
to
fulfill any of its obligations under this Lease or to supply, or is delayed
in
supplying, any service to be supplied by it under the terms of this Lease or
is
unable to make, or is delayed in making any repairs, additions, alterations,
or
decorations or is unable to supply, or is delayed in supplying, any equipment
or
fixtures if Landlord is prevented or delayed from so doing by reason of strikes
or labor troubles or any outside cause whatsoever including, but not limited
to,
governmental preemption in connection with a National Emergency, or by reason
of
any rule, order or regulation of any department or subdivision of any government
agency or by reason of the conditions of supply and demand which have been
or
are affected by war or other emergency. Similarly, Landlord shall not be liable
for any interference with any services supplied to Tenant by others if such
interference is caused by any of the reasons listed in this Section. Nothing
contained in this Section shall be deemed to impose any obligation on Landlord
not expressly imposed by other sections of this Lease.
Notwithstanding
anything herein to the cont,
aryif
(i) the services or utilities described in Section
23
hereof
are interrupted for a period of more than seven (7) consecutive business days,
(ii) such interruption is not the result of strikes, unavailability of parts
or
other materials, or any other cause beyond Landlord's reasonable control, and
(iii) such interruption renders a material portion of the Premises unusable
by
Tenant, then Tenant shall be entitled to a pro rata abatement of rent beginning
on the eighth (8th) consecutive business day that such portion of the
Premises
are
unusable and continuing until the use of all or a substantial portion of the
Premises is restored to Tenant.
| 28. |
No
Waivers.
The failure of Landlord to insist, in any one or more instances,
upon a
strict performance of any of the covenants of this Lease, or to exercise
any option herein contained, shall not be construed as a waiver,
or a
relinquishment for the future, of such covenant or option, but the
same
shall continue and remain in full force and effect. The receipt by
Landlord of rent, with knowledge of the breach of any covenant hereof,
shall not be deemed a waiver of
such
|
breach,
and no waiver by Landlord of any provision hereof shall be deemed to have been
made unless expressed in writing and signed by Landlord.
29. Access
to Premises and Change in Services.
Landlord
shall have the right, without abatement of rent, to enter the Premises at any
hour to examine the same, or to make such repairs and alterations as Landlord
shall deem necessary for the safety and preservation of the Building, and also
to exhibit the Premises to be let; provided, however, that except in the case
of
emergency such entry shall only be after notice first given to Tenant. If,
during the last month of the Term, Tenant shall have removed all or
substantially all of Tenant's property therefrom, Landlord may immediately
enter
and alter, renovate and redecorate the Premises, without elimination or
abatement of rent, or incurring liability to Tenant for any compensation, and
such acts shall have no effect upon this Lease. Nothing herein contained,
however, shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, supervision or repair,
of
the Building or any part thereof, other than as herein elsewhere expressly
provided. Landlord shall also have the right at any time, without the same
constituting an actual or constructive eviction and without incurring any
liability to Tenant therefor, to change the arrangement and/or location of
entrances or passageways, doors and doorways, and corridors, stairs, toilets,
elevators, or other public parts of the Building, and to change the name by
which the Building is commonly known and/or its mailing address.
30. Estoppel
Certificates.
Tenant
agrees, at any time and from time to time, upon not less than ten (10) days'
prior request by Landlord to execute, acknowledge and deliver to Landlord an
estoppel certificate substantially in the form attached hereto as Exhibit
"D"
or such
other reasonable form requested by Landlord which certifies that this Lease
is
unmodified and in full force (or if there have been modifications, that the
same
is in full force and effect as modified and stating the modifications) and
the
dates through which the rent and other charges have been paid in advance, if
any, and stating whether or not to the best knowledge of the signer of such
certificate Landlord is in default in performance of any covenant, agreement
or
condition contained in this Lease and, if so, specifying each such default
of
which the signer may have
knowledge,
it being intended that any such statement delivered hereunder may be relied
upon
by third parties not a party to this Lease.
31. Subordination.
▇▇▇▇▇▇
accepts this Lease, and the tenancy created hereunder, subject and subordinate
to any mortgages, overleases, leasehold mortgages or other security interests
now or hereafter a lien upon or affecting the Building or the Property or any
part thereof. Tenant shall, at any time hereafter, within ten (10) days after
request from Landlord, execute a Subordination, Non-Disturbance Agreement
substantially in the form of Exhibit
"E"
attached
hereto and made a part hereof or any instruments or leases or other documents
that may be required by any mortgage or mortgagee or overlandlord (herein a
"Mortgagee")
for the purpose of subjecting or subordinating this Lease and the tenancy
created hereunder to the lien of any such mortgage or
mortgages
or underlying lease, and the failure of Tenant to execute any such instruments,
releases or documents shall constitute a default hereunder.
32. Attomment.
Tenant
agrees that upon any termination of Landlord's interest in the Premises, Tenant
shall, upon request, attorn to the person or organization then holding title
to
the reversion of the Premises (the "Successor")
and to all subsequent Successors, and shall pay to the Successor all of the
rents and other monies required to be paid by Tenant hereunder and perform
all
of
the other terms, covenants, conditions and obligations in this Lease contained;
provided, however, that if in connection with such attornment Tenant shall
so
request from such Successor in writing, such Successor shall execute and deliver
to Tenant an instrument wherein such Successor agrees that as long as ▇▇▇▇▇▇
performs all of the terms, covenants and conditions of this Lease, on ▇▇▇▇▇▇'s
part to be performed, ▇▇▇▇▇▇'s possession under the provisions of this Lease
shall not be disturbed by such Successor.
33. Notices.
All
notices and other communications to be made hereunder shall be in writing and
shall be delivered to the addresses set forth below by any of the following
means: (a) personal service or receipted courier service; (b) telecopying (if
confirmed in writing sent by the methods specified in clauses (a), (c) or (d)
of
this Section), (c) registered or certified first class mail, return receipt
requested, or (d) nationally-recognized overnight delivery service. Such
addresses may be changed by notice to the other parties given in the same manner
as provided above. Any notice or other communication sent pursuant to clause
(a)
or (b) hereof shall be deemed received upon such personal service or upon
dispatch by electronic means, if sent pursuant to subsection (c) shall be deemed
received five (5) days following deposit in the mail and/or if sent pursuant
to
subsection (d) shall be deemed received the next succeeding business day
following deposit with such nationally recognized overnight delivery
service.
If
to
Landlord: GATEWAY
44, LLC
c/o
Corporate Office Properties, L.P. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
General Counsel
Telecopier:
▇▇▇-▇▇▇-▇▇▇▇
If
to
Tenant: At
the
Premises and to Tenant's Notice Address.
Any
party
may designate a change of address by written notice to the above parties, given
at least ten (10) days before such change of address is to become
effective.
34. Intentionally
Deleted.
35. Tenant's
Space.
Attached
hereto as Exhibit
"C"
is a
copy of Landlord's "Tenant Improvements," specifying the materials and manner
in
which Landlord shall finish the Premises. The first $7500 of the cost of
completing the Tenant Improvement shall be payable by Tenant to Landlord, and
the remaining costs thereof shall be Landlord's. Landlord shall cause all work
necessary to complete the Premises in accordance with Exhibit
"C"
to be
commenced with reasonable promptness after the signing of the Lease and
thereafter duly completed.
Tenant
agrees to furnish Landlord, within fifteen (15) days from the date hereof,
such
specifications reasonably acceptable to Landlord as may be required to enable
Landlord to prepare plans and specifications and the construction drawings
for
the work to be performed, including, without limitation, specifications for
Tenant's electrical, special equipment needs and finishes and any other
information required for Landlord to complete the construction drawings required
to accompany the permit application. Landlord shall deliver such plans and
specifications to Tenant for review and approval within fourteen (14) days
after
receipt from Tenant of all of the information described in the immediately
preceding sentence. Such plans and specifications shall be deemed accepted
by
Tenant unless Tenant shall have given written notice to the contrary to Landlord
within ten (10) days of Tenant's receipt thereof, stating the respects in which
same fail to conform with ▇▇▇▇▇▇'s requirement. When Landlord and Tenant have
agreed upon the plans and specifications or the ten (10) day comment period
has
expired, Landlord shall apply for any required permits, diligently prosecute
the
issuance of the permits and then finish or cause the Premises to be finished
in
accordance therewith.
The
cost
of any work which is not described as Tenant Improvements shall include all
costs of labor and materials incurred by Landlord in the performance of such
work, plus ten percent (10%) for overhead and ten percent (10%) for profit.
At
Tenant's request, Landlord shall fully cooperate with Tenant to establish the
costs or estimates in advance of performing the work which is not included
as
the Tenant Improvements.
36. Quiet
Enjoyment.
Tenant,
upon the payment of rent and the performance of all the terms of
this
Lease, shall at all times during the Term peaceably and quietly enjoy the
Premises without
any
disturbance from Landlord or any other person claiming through
Landlord.
37. Vacation
of Premises.
Tenant
shall vacate the Premises at the end of the Term. If Tenant fails to vacate
at
such time there shall be payable to Landlord an amount equal to one hundred
fifty percent (150%) of the monthly Base Rent stated in Section
1.1.8
paid
immediately prior to the holding over period for each month or part of a month
that Tenant holds over, plus all other payments provided for herein, and the
payment and acceptance of such payments shall not constitute an extension or
renewal of this Lease. In event of any such holdover, Landlord shall also be
entitled to all remedies provided by law for the speedy eviction of tenants,
and
to the payment of all attorneys' fees and expenses incurred in connection
therewith.
38. Members'
Liability.
It is
understood that the Owner of the Building is a Maryland limited liability
company. All obligations of the Owner hereunder are limited to the net assets
of
the Owner from time to time. No member of Owner, or of any successor
partnership, whether now
or
hereafter a member, shall have any personal responsibility or liability for
the
obligations of Owner hereunder.
39. Separability.
If any
term or provision of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the remainder
of this Lease or the application of such term or provision of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be
affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
40. Indemnification.
40.1
Tenant's
Indemnification.
Tenant
shall indemnify and hold harmless Landlord and all of its and their respective
members, partners, directors, officers, agents and employees from
any
and all liability, loss, cost or expense arising from all third-party claims
resulting from or in connection with:
40.1.1
the conduct or management of the Premises or of any business therein, or any
work or thing whatsoever done, or any condition created in or about the Premises
during the Term of this Lease or during the period of time, if any, prior to
the
Commencement Date that
Tenant
may have been given access to the Premises if a result of acts covered by
Section
40.1.2
below;
40.1.2
any act, omission or negligence of Tenant or any of its subtenants or
licensees
or its or their partners, directors, officers, agents, employees, invitees
or
contractors;
40.1.3
any accident, injury or damage whatever occurring in, at or upon
the
Premises
other than those items covered under ▇▇▇▇▇▇▇▇'s indemnity as described in
Section 40.2;
40.1.4
any breach or default by Tenant in the full and prompt payment and performance
of Tenant's obligations under this Lease together
with all costs and expenses reasonably incurred or paid in connection with
each
such claim
or
action or proceeding brought thereon, including, without limitation, all
reasonable attorney's fees and expenses.
In
case
any action or proceeding is brought against Landlord and/or any of its and
their
respective partners, directors, officers, agents or employees and such claim
is
a claim from which Tenant is obligated to indemnify Landlord pursuant to this
Section, Tenant, upon written notice from Landlord shall resist and defend
such
action or proceeding (by counsel reasonably satisfactory
to Landlord). The obligations of Tenant under this Section shall survive
termination of this Lease.
40.2
Landlord's
Indemnification.
Landlord
shall indemnify and hold harmless Tenant and all of its and their respective
members, partners, directors, officers, agents and employees from any and all
liability, loss, cost or expense arising from all third-party claims resulting
from or
in
connection with:
40.2.1
the conduct or management of the Building or of any business therein, or any
work or thing whatsoever done, or any condition created in or about the Building
during the Term of this Lease; and
40.2.2
any act, omission or negligence of Landlord or any of its subtenants or
licensees or its or their partners, directors, officers, agents, employees,
invitees or contractors; and together
with all costs and expenses reasonably incurred or paid in connection with
each
such claim or action or proceeding brought thereon, including, without
limitation, all reasonable attorney's fees and expenses.
In
case
any action or proceeding is brought against Tenant and/or any of its and their
respective partners, directors, officers, agents or employees and such claim
is
a claim from which Landlord is obligated to indemnify Tenant pursuant to this
Section, Landlord, upon written notice from Tenant shall resist and defend
such
action or proceeding (by counsel reasonably satisfactory to Tenant). The
obligations of Landlord under this Section shall survive termination of this
Lease.
41. Captions.
All
headings anywhere contained in this Lease are intended for convenience or
reference only and are not to be deemed or taken as a summary of the provisions
to which they pertain or as a construction thereof
42. Brokers.
Tenant
represents that ▇▇▇▇▇▇ has dealt directly with, only with, the Broker as broker
in connection with this Lease, and Tenant warrants that no other broker
negotiated this Lease or is entitled to any commissions in connection with
this
Lease. Landlord shall pay the Broker pursuant to the terms of a separate written
agreement by and between Landlord and Broker.
43. Recordation.
Tenant
covenants that it shall not, without ▇▇▇▇▇▇▇▇'s prior written consent, which
consent may be withheld in Landlord's sole and absolute discretion, record
this
Lease or any memorandum of this Lease or offer this Lease or any memorandum
of
this Lease for recordation. If at any time Landlord or any mortgagee of
Landlord's interest in the Premises shall require the recordation of this Lease
or any memorandum of this Lease, such recordation shall be at Landlord's
expense. If at any time Tenant shall require the recordation of this Lease
or
any memorandum of this Lease, such recordation shall be at Tenant's expense.
If
the recordation of this Lease or any memorandum of this Lease shall be required
by any valid governmental order, or if any government authority having
jurisdiction in the matter shall assess and be entitled to collect transfer
taxes or documentary stamp taxes, or both transfer taxes and documentary stamp
taxes on this Lease or any memorandum of this Lease, Tenant shall execute such
acknowledgments as may be necessary to effect such recordations and pay, upon
request of Landlord, one half of all recording fees, transfer taxes and
documentary stamp taxes payable on, or in connection with this Lease or any
memorandum of this Lease or such recordation.
44. Successors
and Assigns.
The
covenants, conditions and agreements contained in this Lease shall bind and
inure to the benefit of Landlord and ▇▇▇▇▇▇, and their respective heirs,
personal representatives, successors and assigns (subject, however, to the
terms
of Section
20
hereof).
| 45. |
Integration
of Agreements.
This writing is intended by the Parties as a final expression of
their
agreement and is a complete and exclusive statement of its terms,
and all
negotiations, considerations and representations between the Parties
are
incorporated. No course of prior dealings between the Parties or
their
affiliates shall be relevant or admissible to supplement, explain,
or vary
any of the terms of this Lease. Acceptance of, or acquiescence to,
a
course of performance rendered under this Lease or any prior agreement
between the Parties or their affil-iates shall not be relevant or
admissible to determine the meaning of any of the terms or covenants
of
this Lease. Other than as specifically set forth in this Lease, no
representations, understandings, or agreements have been made or
relied
upon in the making of this Lease.
|
46. Hazardous
Material; Indemnity.
Tenant
shall not cause or permit any Hazardous Material (as hereinafter defined) to
be
brought upon, kept, or used in or about the Premises by Tenant, its agents,
employees, contractors or invitees, without the prior written consent of
Landlord (which Landlord shall not unreasonably withhold as long as Tenant
demonstrates to Landlord's reasonable satisfaction that such Hazardous Material
is necessary or useful to Tenant's business and shall be used, kept and stored
in a manner that complies with all laws regulating any such Hazardous Material
so brought upon or used or kept in or about the Premises). If Tenant breaches
the obligations stated in the preceding sentence, or if the presence of
Hazardous Material on the Premises caused or permitted by Tenant results in
contamination of the Premises, the Building and/or the Property, or if
contamination of the Premises, the Building and/or the Property by Hazardous
Material otherwise occurs, for which Tenant is legally liable to Landlord for
damage resulting therefrom, then Tenant shall indemnify, defend and hold
Landlord and its Mortgagee(s) harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities or losses (including, without
limitation, diminution in value of the Premises, the Building and/or the
Property, damages for the loss or restriction on use of rentable or usable
space
or of any amenity of the Premises, the Building and/or the Property, damages
arising from any adverse impact on marketing of space, and sums paid in
settlement of claims, attorneys' fees, consultant fees and expert fees) which
arise during or after the Term as a result of such contamination. This
indemnification of Landlord and its Mortgagee(s) by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal, or restoration work required
by
any federal, state or local governmental agency or political subdivision because
of Hazardous Material present in the soil or ground water on or under the
Building. Without limiting the foregoing, if the presence of any Hazardous
Material on the Premises, the Building and/or the Property caused or permitted
by Tenant results in any contamination of the Premises, the Building and/or
the
Property, Tenant shall promptly take all actions at its sole expense as are
necessary to return the Premises, the Building and/or the Property to the
condition existing prior to the introduction of any such Hazardous Material
to
the Premises, the Building and/or the Property; provided that Landlord's
approval of such actions shall first be obtained, which approval shall not
be
unreasonably withheld so long as such actions would not potentially have any
material adverse long-term or short-term effect on the Premises or the
Building.
As
used
herein, the term "Hazardous Material" means any hazardous or toxic substance,
material or waste which is or becomes regulated by any local governmental
authority, the State of Maryland or the United States Government. The term
"Hazardous Material" includes, without limitation, any material or substance
that is (i) defined as a "hazardous substance" under the laws of the State
of
Maryland, (ii) petroleum, (iii) asbestos, (iv) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control Act
(33 U.S.C. Section 1321), (v) defined as a "hazardous waste" pursuant to Section
1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et
seq. (vi) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
§§ 9601 et seq., or (vii) defined as a "regulated substance" pursuant to
Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage
Tanks), 42 U.S.C. §§ 6991 et seq.
47. Americans
With Disabilities Act.
Notwithstanding any other provisions contained in this Lease and with the
purpose of superseding any such provisions herein that might be construed to
the
contrary, it is the intent of Landlord and Tenant that at all times while this
Lease shall be in effect that the following provisions shall be deemed their
specific agreement as to how the responsibility for compliance (and cost) with
the Americans With Disabilities Act and amendments to same ("ADA"), both as
to
the Premises and the Property, shall be allocated between them,
namely:
47.1
Landlord and Tenant agree to cooperate together in the initial design, planning
and preparation of specifications for construction of the Premises so that
same
shall be in compliance with the A. Any costs associated with assuring that
the
plans and specifications for the construction of the Premises are in compliance
with the ADA shall be borne by the party whose responsibility it is hereunder
to
bear the cost of preparation of the plans and specifications. Similarly those
costs incurred in the initial construction of the Premises so that same are
built in compliance with the ADA shall be included within Tenant's Improvements
and handled in the manner as provided for in other Sections of this
Lease.
47.2
Subject
to Section
47.4,
modifications, alterations and/or other changes required to and within the
Common Areas which are not capital in nature shall be the responsibility of
Landlord to perform and the cost of same shall be considered a part of the
Building Expenses and treated as such.
47.3
Subject to Section
47.4,
modifications, alterations and/or other changes required to and within the
Common Areas which are capital in nature shall be the responsibility of Landlord
and at its cost and expense.
47.4
Modifications, alterations and/or other changes required to and within the
Common Areas, whether capital in nature or not, which are required as a result
of Tenant's specific use of the Premises, as compared to office uses generally,
shall be paid by Tenant within thirty (30) days after receipt of an invoice
from
Landlord, together with reasonable supporting documentation.
47.5
Modifications, alterations and/or other changes required to and within the
Premises (after the initial construction of same), whether capital in nature
or
non-capital in nature, shall be the responsibility of Tenant and at its cost
and
expense; unless the changes are structural in nature and result from the
original design of the Building, in which instance they shall be the
responsibility of Landlord and at its cost and expense.
Each
party hereto shall indemnify and hold harmless the other party from any and
all
liability, loss, cost or expense arising as a result of a party not fulfilling
its obligations as to compliance with the ADA as set forth in this Section
47.
48. Several
Liability.
If
Tenant shall be one or more individuals, corporations or other entities, whether
or not operating as a partnership or joint venture, then each such individual,
corporation, entity, joint venturer or partner shall be deemed to be both
jointly and severally liable for the payment of the entire rent and other
payments specified herein.
49. Financial
Statements.
Tenant
represents and warrants to Landlord that the financial statements heretofore
delivered by Tenant to Landlord are true, correct and complete in all respects,
have been prepared in accordance with generally accepted accounting principles,
and fairly represent the financial condition of Tenant as of the date thereof,
and that no material change has thereafter occurred in the financial conditions
reflected therein. Within fifteen (15) days after request from Landlord, ▇▇▇▇▇▇
agrees to deliver to Landlord such future financial statements and other
information as Landlord from time to time may reasonably request.
50. Definition
of "Day" and "Days" .
As used
in the Lease, the terms "day" and "days" shall refer to calendar days unless
specified to the contrary; provided, however, that if the deadline established
for either party's performance hereunder occurs on a Saturday, Sunday or banking
holiday in the State of Maryland, the date of performance shall be extended
to
the next occurring business day.
IN
WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ have respectively affixed their hands
and
seals to this Lease as of the day and year first above written.
|
converalease
4/29/05
ibw
WITNESS
OR ATTEST:
|
-LANDLORD:
GATEWAY 44, LLC
|
____________________ By:______________________(SEAL)
WITNESS
OR ATTEST: TENANT:
CONVERA
CORPORATION
______________________ By:______________________(SEAL) Name:__________________________ Title:___________________________
STATE
OF
MARYLAND,___________________ TO
WIT:
I
HEREBY
CERTIFY, that on this____ day
of,
2005,
before me, the undersigned Notary Public of the State, personally appeared
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇., who acknowledged himself to be the Executive Vice President
of
GATEWAY 44, LLC, a Maryland limited liability company, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument, and acknowledged that he executed the same on behalf of the
corporation for the purposes therein contained as the duly authorized Executive
Vice President of the corporation by signing the name of the corporation by
himself as such Executive Vice President.
WITNESS
my hand and Notarial Seal.-
Notary
Public
My
Commission Expires:
STATE
OF
VIRGINIA______________TO WIT:
I
HEREBY
CERTIFY, that on this ___'day
of__________________, 2005, before me, the
undersigned
Notary Public of the State, personally appeared ______________ known
to
me (or
satisfactorily
proven) to be the person whose name is subscribed to the with n instrument,
and
acknowledged
himself/herself to be the________of
CONVERA CORPORATION, a _______
corporation,
and that he/she, as such __________, being
authorized so to do, executed the foregoing instrument on behalf of the
Corporation by himself/herself as such __________________.
|
WITNESS
my hand and Notarial Seal.
| |
|
My
Commission Expires:
|
Notary
Public
|
EXHIBIT
"A"
to
Agreement of Lease by and between
GATEWAY
44, LLC, Landlord
and
CONVERA CORPORATION, Tenant
FLOOR
PLAN
[Missing
Graphic Reference]
EXHIBIT
"A"
to
Agreement of Lease by and between
GATEWAY
44, LLC, Landlord
and
CONVERA CORPORATION, Tenant
FLOOR
PLAN
[Missing
Graphic Reference]
EXHIBIT
"A-1"
to
Agreement of Lease by and between
GATEWAY
44, LLC, Landlord
and
CONVERA CORPORATION, Tenant
LEGAL
DESCRIPTION OF PROJECT
Parcel
A-1 as shown on a plat entitled "Columbia Gateway, Parcels A-1 and C-1, A
Resubdivision of Parcels A and C, Plats 6766 & 6767, Sheet 1 of 2," which
plat is recorded among the Land Records of ▇▇▇▇▇▇ County, Maryland as Plat
No.
7995.
EXHIBIT
"B"
to
Agreement of Lease by and between
GATEWAY
44, LLC, Landlord
and
CONVERA CORPORATION, Tenant
RULES
AND REGULATIONS
To
the extent that any of the following Rules and Regulations, or any Rules and
Regulations subsequently enacted conflict with the provisions of the Lease,
the
provisions of the Lease shall control.
1. Tenant
shall not obstruct or permit its agents, clerks or servants to obstruct, in
any
way, the sidewalks, entry passages, corridors, halls, stairways or elevators
of
the Building, or use the same in any other way than as a means of passage to
and
from the offices of Tenant; bring in, store, test or use any materials in the
Building which could cause a fire or an explosion or produce any fumes or vapor;
make or permit any improper noises in the Building; smoke in the elevators,
the
Premises, the Building or the Common Areas except in the exterior areas
specifically designated by Landlord; throw substances of any kind out of the
windows or doors, or down the passages of the Building, in the halls or
passageways; sit on or place anything upon the window ▇▇▇▇▇; or clean the
windows.
2. Waterclosets
and urinals shall not be used for any purpose other than those for which they
were constructed; and no sweepings, rubbish, ashes, newspaper or any other
substances of any kind shall be thrown into them. Waste and excessive or unusual
use of electricity or water is prohibited.
3. Tenant
shall not (i) obstruct the windows, doors, partitions and lights that reflect
or
admit light into the halls or other places in the Building, or (ii) inscribe,
paint, affix, or otherwise display signs, advertisements or notices in, on,
upon
or behind any windows or on any door, partition or other part of the interior
or
exterior of the Building without the prior written consent of Landlord which
shall not be unreasonably withheld. If such consent be given by Landlord, any
such sign, advertisement, or notice shall be inscribed, painted or affixed
by
Landlord, or a company approved by Landlord, but the cost of the same shall
be
charged to and be paid by ▇▇▇▇▇▇, and ▇▇▇▇▇▇ agrees to pay the same promptly,
on
demand.
4. No
contract of any kind with any supplier of towels, water, ice, toilet articles,
waxing, rug shampooing, venetian blind washing, furniture polishing, lamp
servicing, cleaning of electrical fixtures, removal of waste paper, rubbish
or
garbage, or other like service shall be entered into by Tenant, nor shall any
vending machine of any kind be installed in the Building, without the prior
written consent of Landlord, which consent of Landlord shall not be unreasonably
withheld.
5. When
electric wiring of any kind is introduced, it must be connected as directed
by
▇▇▇▇▇▇▇▇, and no stringing or cutting of wires shall be allowed, except with
the
prior written consent of Landlord which shall not be unreasonably withheld,
and
shall be done only by contractors approved by Landlord. The number and location
of telephones, telegraph instruments, electric appliances, call boxes, etc.,
shall be subject to Landlord's approval. No tenants shall lay linoleum or other
similar floor covering so that the same shall be in direct contact with the
floor of the Premises; and if linoleum or other similar floor covering is
desired to be used, an interlining of builder's deadening felt shall be first
affixed to the floor by a paste or other material, the use of cement or other
similar adhesive material being expressly prohibited.
6. No
additional lock or locks shall be placed by Tenant on any door in the Building,
without prior written consent of Landlord. Two keys will be furnished Tenant
by
Landlord; two additional keys will be supplied to Tenant by Landlord, upon
request, without charge; any additional keys requested by Tenant shall be paid
for by Tenant. Tenant, its agents and employees, shall not have any duplicate
keys made and shall not change any locks. All keys to doors and washrooms shall
be returned to Landlord at the termination of the tenancy, and in the event
of
any loss of any keys furnished, Tenant shall pay Landlord the cost
thereof.
7. Tenant
shall not employ any person or persons other than Landlord's janitors for the
purpose of cleaning the Premises, without prior written consent of Landlord
which shall not be unreasonably
withheld. Landlord shall not be responsible to Tenant for any loss of property
from the Premises however occurring, or for any damage done to the effects
of
Tenant by such janitors or any of its employees, or by any other person or
any
other cause.
8. No
bicycles, vehicles or animals of any kind (other than animals to assist the
disabled) shall be brought into or kept in or about the Premises.
9. Tenant
shall not conduct, or permit any other person to conduct, any auction upon
the
Premises; manufacture or store goods, wares or merchandise upon the Premises,
without the prior written approval of Landlord, except the storage of usual
supplies and inventory to be used by Tenant in the conduct of its business;
permit the Premises to be used for gambling; make any unusual noises in the
Building; permit to be played any musical instrument in the Premises; permit
to
be played any radio, television, recorded or wired music in such a loud manner
as to disturb or annoy other tenants; or permit any unusual odors to be produced
upon the Premises. Tenant shall not permit any portion of the Premises to be
used for the storage, manufacture, or sale of intoxicating beverages, narcotics,
tobacco in any form, or as a ▇▇▇▇▇▇ or manicure shop.
10. No
awnings or other projections shall be attached to the outside walls of the
Building. No curtains, blinds, shades or screens shall be attached to or hung
in, or used in connection with, any window or door of the Premises, without
the
prior written consent of Landlord which consent shall not be unreasonably
withheld. Such curtains, blinds and shades must be of a quality, type, design,
and color, and attached in a manner reasonably approved by
Landlord.
11. Canvassing,
soliciting and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent the same.
12. There
shall not be used in the Premises or in the Building, either by Tenant or by
others in the delivery or receipt of merchandise, any hand trucks except those
equipped with rubber tires and side guards, and no hand trucks will be allowed
in passenger elevators.
13. Tenant,
before closing and leaving its Premises, shall ensure that all entrance doors
to
same are locked.
14. Landlord
shall have the right to prohibit any advertising by Tenant which in Landlord's
opinion tends to impair the reputation of the Building or its desirability
as a
building for offices, and upon written notice from Landlord, Tenant shall
refrain from or discontinue such advertising.
15. Landlord
hereby reserves to itself any and all rights not granted to Tenant hereunder,
including, but not limited to, the following rights which are reserved to
Landlord for its purposes in operating the Building:
(a) the
exclusive right to the use of the name of the Building for all purposes, except
that Tenant may use the name as its business address and for no other
purpose;
(b) the
right
to change the name or address of the Building, without incurring any liability
to Tenant for so doing;
(c) the
right
to install and maintain a sign or signs on the exterior of the
Building;
(d) the
exclusive right to use or dispose of the use of the roof of the
Building;
(e) the
non-exclusive right to use the area above the ceiling of the Premises for the
purpose of installing and maintaining telecommunications, water lines, utility
lines, other conduit, sprinklers, drainlines, ductwork and HVAC connections
and
any other equipment necessary to provide services to any area in the
Building;
(f) the
right
to limit the space on the directory of the Building to be allotted to
Tenant;
(g)
the right to
grant to anyone the right to conduct any particular business or undertaking
in
the Building.
16. As
used
herein the term "Premises" shall mean and refer to the "Premises" as defined
in
Section
1
of the
Lease.
17. Tenant
shall not operate space heaters or other heating or ventilating equipment
without the express prior written consent of Landlord in each instance first
obtained. Tenant shall not install or operate any electrical equipment,
appliances or lighting fixtures in the Premises which are not listed and labeled
by Underwriter's Laboratories or other testing organization acceptable to
Landlord.
▇▇▇▇▇▇▇.▇▇▇▇▇
4/29/05
EXHIBIT
"C"
to
Agreement of Lease by and between
GATEWAY
44, LLC, Landlord
and
CONVERA CORPORATION, Tenant
SCHEDULE
OF TENANT IMPROVEMENTS
to
Agreement of Lease by and between
GATEWAY
44, LLC, Landlord
and
CONVERA CORPORATION, Tenant
ESTOPPEL
CERTIFICATE
TRANSAMERICA
OCCIDENTAL LIFE INSURANCE COMPANY c/o AEGON USA Realty Advisors,
Inc.
Mortgage
Loan Depaltment
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇.
Cedar
Rapids, Iowa 52499-5223
RE:
Mortgage Loan to Corporate Office Properties, L.P. (the "Borrower") secured
by
6716, 6740, 6750 & ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Real Property") owned by Gateway 44, LLC, a Maryland limited liability company
(the "Landlord"), and Assignment of Lease to Lender (as defined below) of a
certain Lease to CONVERA CORPORATION (the "Tenant")
Dear
Sir
or Madam:
We
are
the tenant under the terms of a certain lease (together with any amendments,
options, extension and renewals listed below, the "Lease") demising premises
which comprise all or part of the Real Property. We understand that one of
your
insurance company affiliates ("Lender") has acted as the lender in connection
with the funding of a commercial mortgage loan (the "Loan"). An assignment
of
the Lease will be part of ▇▇▇▇▇▇'s security for the Loan.
Tenant
certifies that:
(a) It
occupies the premises demised by the Lease.
(b) The
material business terms of the Lease are as follows:
Landlord:
Lease
Date:
Lease
Commencement Date:
Subleases
(if any):
Amendments
and Modifications (if any):
Current
Monthly Base Rent:
Current
Expense Reimbursement:
Square
Footage:
Expiration
Date:
Renewals
or Options (if any):
Security
or other Deposit:
Uncompleted
Tenant Improvements (if any):
Unpaid
Tenant Allowances (if any):
Other
Financial Obligation of Landlord (if any):
(c) The
Lease
is Tenant's entire agreement with the Landlord.
| (d) |
▇▇▇▇▇▇
has accepted and currently occupies the leased premises, is paying
full
rent under the Lease, and neither (i) presently asserts any Landlord
default, claim against Landlord, matured right of setoff, or right
to pay
reduced rent nor (ii) knows of any fact which, with the giving of
notice
or the passage of time, or both, could give rise to any such default,
claim or right.
|
| (e) |
Tenant
neither (i) presently asserts any matured right to terminate or to
cancel
the Lease nor (ii) knows of any fact which, with the giving of notice
or
the passage of time, or both, could give rise to any such
right.
|
| (f) |
Tenant
does not presently intend to vacate its premises any t ime
prior to the Lease's expiration date and knows of no fact which could
give
rise to any such intent.
|
(g) Tenant
is
not the debtor in any bankruptcy or state insolvency case and is not the
subject
of any receivership, winding up, liquidation or similar proceeding.
Very
truly yours,
Tenant:
CONVERA CORPORATION
By:
Name:
Title:
Date:
36
▇▇▇▇▇▇▇.▇▇▇▇▇
EXHIBIT
"E"
to
Agreement of Lease by and between
GATEWAY
44, LLC, Landlord
and
CONVERA CORPORATION, Tenant
FORM
OF
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
SUBORDINATION,
ATTORNMENT AND NON-DISTURBANCE AGREEMENT
THIS
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT ("Agreement") is made
and
entered into as of the day
of
200_by and between TRANSAMERICA OCCIDENTAL LIFE INSURANCE
COMPANY("Lender"), and CONVERA CORPORATION,a
("Tenant").
WHEREAS,
▇▇▇▇▇▇ has funded a commercial mortgage loan (the "Loan") to CORPORATE OFFICE
PROPERTIES, L.P., a Delaware limited partnership ("Borrower") secured by a
mortgage or deed of trust (the "Mortgage") on the land described on Exhibit
"A,"
together with present or future improvements (the "Real Property") owned by
GATEWAY 44, LLC, a Maryland limited liability company and affiliate of Borrower
("Landlord"); and
WHEREAS,
by a certain lease between Landlord and Tenant dated as of , 2001 (together
with
all amendments, options, extensions and renewals, the "Lease"), Landlord has
demised to Tenant all or a portion of the Real Property; and
WHEREAS,
as a condition to making the Loan, Landlord assigned its interest in the Lease
to Lender as part of Lender's security; and
WHEREAS,
the Tenant's execution and delivery of this Agreement and of an estoppel
certificate providing the Lender with current information on the status of
the
Lease (the "Estoppel") are conditions precedent to ▇▇▇▇▇▇'s obligation to fund
the Loan; and
WHEREAS,
Tenant desires to enter into this Agreement in order to benefit from the
promises by ▇▇▇▇▇▇ that are set forth in this Agreement;
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants herein
contained, the parties agree as follows:
| 1. |
If,
upon the closing of the Loan, the Lease would not by its terms be
subordinate to the lien of Lender on the Real Property, Tenant so
subordinates the Lease.
|
2. The
Tenant consents to the assignment of the Lease to Lender in support of the
Loan.
| 3. |
If
Landlord defaults under the Lease and, upon notice, fails to cure
its
default within the cure period provided under the Lease, Tenant will
notify Lender of the default and afford Lender a reasonable opportunity
to
cure it before terminating the Lease or exercising any self-help
rights
from which a right of setoff would
arise.
|
| 4. |
If
Lender forecloses the Loan or acquires title to the Real Property
by deed
in lieu of foreclosure, the following terms and conditions will govern
the
respective rights and obligations of Tenant and Lender or other new
owner
of the Real Property (in either case, the "New
Owner"):
|
| (a) |
The
New Owner shall not disturb Tenant's quiet enjoyment and possession
of its
demised premises for so long as Tenant faithfully performs its obligations
under the Lease and under this
Agreement.
|
| (b) |
The
New Owner shall not be bound by any purchase option contained in
the
Lease.
|
| (c) |
The
New Owner shall not be required to assume any of Landlord's liabilities
to
Tenant under indemnification or hold harmless agreements in the Lease
arising from any Landlord default, act or omission occurring prior
to the
date New Owner acquires title to the Real Property, or for damages
caused
by any Landlord default, act or omission occurring prior to date
New Owner
acquires title to the Real Property, and, following the acquisition
of
title, the New Owner's liability to the Tenant shall never exceed
the
value of the New Owner's interest in the Real
Property.
|
| (d) |
This
Agreement will not vary the terms of the Lease that condition ▇▇▇▇▇▇'s
obligation to pay rent on Landlord's performance of its covenants
under
the Lease in respect of the habitability and quiet enjoyment of the
Real
Property, which ▇▇▇▇▇▇ agrees shall apply to the New Owner as they
have to
the Landlord,provided
▇▇▇▇▇▇ has performed its obligation under paragraph 3 of this
Agreement.
|
(f) Subject
to the other terms of this Agreement, Tenant will, upon notice of the transfer,
attorn to the New Owner (that is, recognize the New Owner as the landlord under
the Lease from the time of transfer of the Real Property forward).
(g) The New Owner will not be bound by any modification of the Lease made
without ▇▇▇▇▇▇'s consent. The
New
Owner will not be bound by any rent paid more than one month in advance
unless it actually receives it, or unless ▇▇▇▇▇▇ has consented to the advance
payment in writing.
| (h) |
In
respect of security or other lease deposits it receives, the New
Owner
shall be bound under the terms of the
Lease.
|
The
New
Owner will be bound by offset rights under the Lease that have arisen through
the Tenant's exercise of its rights to cure Landlord defaults, but only
if
the
Tenant has performed its obligations under paragraph three of this Agreement
and
the default has remained uncured.
| 5. |
No
Modification.
No
modification shall be valid unless in writing and executed by the
party
against whom enforcement is sought.
|
| 6. |
Notices.
Any notice under this Agreement may be delivered by hand or sent
by
commercial delivery service or United States Postal Service express
mail,
in either case for overnight delivery with proof of receipt, or sent
by
certified mail, return receipt requested, to the following
addresses:
|
To
Tenant: CONVERA CORPORATION
To
Lender:
TRANSAMERICA
OCCIDENTAL LIFE INSURANCE COMPANY Director, Mortgage Loan Servicing
AEGON
USA
Realty Advisors, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
The
notice shall be deemed to have been given on the date it was actually
received.
7.
Successors
and Assigns.
This
Agreement shall be binding on, and shall inure to the benefit of,
the
parties' successors and assigns.
8.
Counterparts.
This
Agreement may be executed and delivered in counterparts for the convenience
of
the parties.
TENANT:
CONVERA
CORPORATION
By:
Name:
Title:
LENDER:
TRANSAMERICA
OCCIDENTAL LIFE INSURANCE COMPANY
By:
Name:
Title:
TENANT
ACKNOWLEDGMENT
|
STATE
OF
| |
[Missing
Graphic Reference]
|
|
COUNTY
OF
|
ON
THIS day
of,
2005,
before me, the subscriber, personally appeared
____________________________,
to me known, who being by me duly sworn, did depose and say that she/he
is_____________________________of CONVERA CORPORATION, a, described in and
which
executed the within instrument; that she/he knows the seal of said;
that
the seal affixed to said instrumentis such corporate seal; that it was so
affixed by order of the Board of Directors of saidand that she/he signed her/his
name thereto by like order as the free and voluntary act and deed of said
corporation.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and
year first above written.
Notary
Public
OFFICEMA\.GATEWAY44
LENDER
ACKNOWLEDGMENT
STATE
OF
IOWA )
SS:
COUNTY
OF
LINK )
ON
THIS day
of,
2001,
before me, the subscriber, personally appeared
,
to me
known, who being by me duly sworn, did depose and say that she/he is
of
TRANSAMERICA OCCIDENTAL LIFE
INSURANCE
COMPANY, the corporation described in and which executed the within instrument;
that she/he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation and that she/he signed her/his name thereto
by
like order as the free and voluntary act and deed of said
corporation.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and
year first above written.
Notary
Public
OFFICEMA\.
GATE WAY44 V12/02
sts
EXHIBIT
A
LEGAL
DESCRIPTION OF PROPERTY