EXHIBIT 10.30
COMMERCIAL LEASE
BY AND BETWEEN
STREAMLINE, MID-ATLANTIC, INC.
A DELAWARE CORPORATION
"TENANT"
AND
MANOR CARE, INC. A DELAWARE CORPORATION
"LANDLORD"
AT
ARCHIVES BUILDING
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
"BUILDING"
LISTING AGENT:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
SENIOR VICE PRESIDENT
▇▇▇▇▇▇ PARTNERS, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
PHONE: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (301) 468-11.90
TABLE OF CONTENTS
Article I. Definitions and Certain Basic Provisions...................................1
Article II. Granting Clause............................................................2
Article III. Rental.....................................................................3
Article IV. Security Deposit...........................................................7
Article V. Construction and Acceptance of the Demised
Premises...................................................................10
Article VI. Uses and Care of Demised Premises..........................................11
Article VII. Landlord's Services........................................................13
Article VIII. Alterations................................................................15
Article IX. Landlord's Right of Access and Use.........................................15
Article X. Signs......................................................................17
Article XI. Utilities..................................................................17
Article XII. Indemnity, Public Liability Insurance and Fire
and Extended Coverage Insurance............................................18
Article XIII. Tenant's Insurance and Landlord's Insurance................................18
Article XIV. Non-Liability for Certain Damages..........................................20
Article XV. Damage by Casualty.........................................................21
Article XVI. Eminent Domain.............................................................22
Article XVII. Assignment and Subletting..................................................23
Article XVIII. Default by Tenant and Remedies.............................................24
Article XIX. Landlord's Lien............................................................28
Article XX. Holding Over...............................................................28
Article XXI. Subordination; Attornment; and Estoppel....................................28
Article XXII. Notices....................................................................30
Article XXIII. Brokers....................................................................30
Article XXIV. Approval and Changes Required by Lender....................................30
Article XXV. Parking....................................................................31
Article XXVI. Waiver of Trial by Jury....................................................31
Article XXVII. Furnishing of Financial Statements.........................................31
Article XXVIII. Occupational and Environmental Compliance..................................31
Article XXIX. Surrender of Demised Premises..............................................33
Article XXX. Miscellaneous..............................................................34
Article XXXI. Status as Sublease.........................................................36
Article XXXII. Attachments................................................................37
COMMERCIAL LEASE
This Lease is entered into this 30th day of June, 1997, by and between
the Landlord and the Tenant named below.
ARTICLE I. DEFINITIONS AND CERTAIN BASIC PROVISIONS.
1.1.
(a) "LANDLORD": Manor Care, Inc., a Delaware
corporation
(b) "LANDLORD'S ADDRESS": ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: Facilities Services
(c) "TENANT": Streamline, Mid-Atlantic, Inc.
a Delaware Corporation
(d) "TENANT'S CURRENT ADDRESS": ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(e) "TENANT'S TRADE NAME": Not Applicable
(f) "TENANT ADDRESS IN BUILDING": ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ T.B.D., Gaithersburg,
MD 208783200 (or any
other address Landlord
assigns prior to the
Commencement Date).
(g) "BUILDING": shall refer to the building commonly known as the
archives building at the address of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
together with additions and other changes as Landlord may from time to time
designate. Landlord reserves the right to assign a different address to the
Building prior to the Commencement Date.
(h) "DEMISED PREMISES": approximately 56,400 rentable square feet, (see
Demising Plan, Exhibit A). Substantially measured in accord with outside wall to
outside wall and outside wall to middle of demising walls, as appropriate. See
Section 2.1
(i) "TENANT'S PROPORTIONATE SHARE": 27.92%
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(j) "LEASE TERM": The period of time commencing from the Commencement
Date, as defined in Section 5.3, and terminating ten (10) years and zero (0)
months after such Commencement Date, unless such termination date is other than
the last day of a calendar month, in which event this Lease shall terminate on
the last day of the calendar month in which such date falls.
(k) "LEASE YEAR": In the case of the first Lease Year, that period from
the Commencement Date to the last day of the twelfth (12th) month following the
Commencement Date. Thereafter, "Lease Year" shall mean each successive twelve
(12) month calendar period following the expiration of the first Lease year.
(l) "TARGET COMMENCEMENT DATE": October 1, 1997. See Section 5.3.
(m) "ANNUAL BASE RENT": $366,600.00 calculated using a rate of $6.50
per rentable square foot.
(n) "MONTHLY RENTAL INSTALLMENTS": $30,550.00
(o) "INITIAL OPERATING EXPENSES": $4,988.37 per month
(p) "SECURITY DEPOSIT": $30,550.00 in cash; $166,000.00 in Letter of
Credit.
(q) "ADVANCE DEPOSIT": $30,550.00
(r) "PERMITTED USE": General Office, Distribution, and Storage Uses,
but no use outlined in Exhibit J.
(S) "INITIAL TAX ESCROW PAYMENT": $1,733.37 per month
ARTICLE II. GRANTING CLAUSE.
2.1. In consideration of the obligation of Tenant to pay rent and other
charges as provided in this Lease and in consideration of the other included
terms, covenants and conditions, Landlord demises and Leases to Tenant, and
Tenant Leases from Landlord, the Demised Premises as described in ARTICLE I,
SECTION 1.1(h) TO HAVE AND TO HOLD said premises for the Lease Term specified in
ARTICLE I, SECTION 1.1(j), all upon the terms and conditions set forth in this
Lease. Landlord expressly reserves the right to change the name of said Building
without notice to the Tenant. Prior to the Lease Commencement Date, Landlord's
architect at Landlord's expense shall measure the Demised Premises to determine
the actual square footage contained in the Demised Premises. The determination
of Landlord's
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architect as to square footage shall in the Demised Premises shall be deemed
conclusive and such number shall be used, as applicable, for all matters
dependant on the actual square footage of the Demised Premises.
ARTICLE III. RENTAL.
3.1. Tenant shall pay to Landlord in monthly installments an amount
equal to 1/12 of the Annual Base Rent, in advance on the first day of each
month, with the first installment to be paid at the time of signing the Lease.
The Annual Base Rent shall be increased each year on the Anniversary Date by
three per cent (3%). All Rent (hereinafter defined) shall begin as of the
Commencement Date and shall be adjusted proportionately for any partial month at
the beginning or end of the Term. All Rent shall be payable without prior notice
or demand except as expressly set forth herein, and without offset, deduction or
counterclaim, in lawful money of the United States of America, to Landlord at
the address set forth on the Lease Summary Sheet or at such other place as
Landlord may from time to time designate by written notice.
3.2. This Lease is what is commonly called a "Net Lease", it being
agreed that Landlord shall receive the rent set forth in Article 3 free and
clear of any and all impositions, taxes, real estate taxes, liens, charges of
any nature whatsoever in connection with the ownership and operation of [lie
Premises together with the Building and land associated therewith ("Land"). In
addition to the rent reserved in Article 3, Tenant shall pay as Additional Rent
its proportionate share as stipulated below of all impositions, taxes,
assessments, governmental charges of any kind, insurance premiums, operating
charges, maintenance charges, reasonable management fees, expenses, construction
costs, and any other costs expenses which arise or may be contemplated to arise
under any relevant provisions of this Lease during the term hereof. All such
charges, costs and expenses shall constitute additional charges and, upon the
failure of Tenant to pay any of such costs, charges or expenses, Landlord shall
have the same rights and remedies as otherwise provided in this Lease for the
failure of Tenant to pay rent. During each month of the term of this Lease, on
the same day that rent is due hereunder, Tenant shall escrow with Landlord an
amount equal to 1/12 of the estimated annual cost of its proportionate share of
such items. Tenant authorizes Landlord to use the funds deposited with Landlord
under this Paragraph 3.2 to pay such costs. The initial monthly escrow payments
are based upon the estimated amounts for the year in question, and shall be
increased or decreased annually to reflect the projected actual costs of all
such items. If Tenant's total escrow payments are less than Tenant's actual
proportionate share of all such items, Tenant shall pay the difference to
Landlord within ten (10) days after demand. If the total escrow payments of
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Tenant are more than Tenant's actual proportionate share of all such items,
Landlord shall retain such excess and credit it against Tenant's next annual
escrow payments or return it to Tenant if there are no further escrow payments.
A copy of such estimated operating expenses and real estate taxes for the
calendar year 1997 is attached hereto as - Exhibit A-1.
Notwithstanding the foregoing, Tenant shall not be responsible for the
following charges, costs and expenses under the Lease.
i) wages, bonuses and other compensation paid to any partner,
shareholder, officer or director of Landlord;.
ii) any costs or expenses associated with or incurred in connection
with the removal, enclosure, encapsulation or other handling of
asbestos or other hazardous or toxic materials or substances which
costs or expenses arose due to the negligence or intentional act of the
Landlord or another tenant of the Building or the Land.
iii) cost of any item for which Landlord is paid or reimbursed by
insurance;
iv) increased insurance or Real Estate Taxes assessed and charged
specifically to any other tenant;
v) charges for electricity, water, other utilities and applicable taxes
for which Landlord is reimbursed from any other tenant;
vi) cost of any HVAC, janitorial or other services provided to other
tenants on an extra-cost basis after regular business hours or
otherwise charged to that tenant;
vii) cost of correcting defects in the design, construction or
equipment of or latent defects in the Building;
viii) cost of any work or service performed on an extra-cost basis for
any other tenant, which cost is charged to that tenant;
ix) cost of any work or services performed for any building other than
the Building;
x) the portion of any cost representing an amount paid to a person,
firm, corporation or other entity related to Landlord which is
substantially in excess of the amount which would have been paid in the
absence of such relationship;
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xi) Landlord's costs attributable to the activities of Landlord's
officers and executives, if any;
xii) attorneys' fees, accounting fees, brokerage fees and commissions
and expenditures incurred in connection with negotiations, disputes and
claims of other tenants;
xiii) cost of any alterations, additions, changes, uninsured repairs,
replacements or other items which under generally accepted accounting
principles are properly classified as capital expenses except if
Landlord's intent in incurring such cost was to lower operating
expenses;
xiv) rental expenses incurred in leasing air conditioning systems,
elevators or other equipment affixed to any realty on the Land and
which are ordinarily considered to be of a capital nature except if
Landlord's intent in incurring such cost was to lower operating
expenses;
xv) cost of acquiring sculptures and paintings;
xvi) costs of repairs, alterations and/or replacements caused by the
exercise of the rights of eminent domain to the extent Landlord
receives compensation through a condemnation award;
(xvii) advertising and promotional expenses, including the costs of any
Landlord provided functions, events, parties, etc., for persons other
than tenants in the Building;
xviii) expenses incurred by Landlord solely to maintain its existence
as a corporation, partnership or other business entity;
xix) costs, fines or penalties incurred due to violation by Landlord of
any laws or governmental rules or regulations;
xx) the portion of management fees or other fees paid to a managing
agent of the Building substantially in excess of fees customarily
charged at other similar buildings in the local area; and
For a period of six (6) months after the delivery of the
statement for the lease year covered thereby, Tenant shall have the
right after reasonable notice to Landlord and at a reasonable place and
time determined by Landlord to inspect Landlord's records with regard
to the charges provided in this Article. In the event that an audit
conducted by a Certified Public Accountant manifestly shows that
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Landlord's ▇▇▇▇▇▇▇▇ to Tenant for such charges exceeded the actual
charges attributable to Tenant, then Landlord shall refund the
difference and, if the Landlord's ▇▇▇▇▇▇▇▇ exceed the actual charges by
more than ten percent (10%), Landlord will pay Tenant for the
reasonable expenses incurred for such Certified Public Accountant
performing such inspection. If such audit shows an underpayment by
Tenant, Tenant hereby agrees and is obligated to disclose same to
Landlord and shall promptly pay such underpayment amount to Landlord.
3.3. All Base Rent and Additional Rent and all other sums payable by
Tenant under this Lease are referred to collectively herein as "Rent", and shall
be collectible by Landlord as rent. If Tenant fails to pay any Rent as required
in this Lease, Landlord shall have the same rights and remedies as for a failure
to pay Base Rent, without prejudice to any other right or remedy available
therefor.
3.4. Intentionally Deleted.
3.5. No payment by Tenant or receipt by Landlord of an amount less than
the Rent payable hereunder shall be deemed to be other than a payment on account
of unpaid Rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment for Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent and pursue any other remedy
provided herein or by law.
3.6. Tenant shall be liable for all taxes levied against personal
property and trade fixtures placed by Tenant in the Building or the land
associated with the Building. If any such taxes are levied against Landlord or
Landlord's property relating to personal property or trade fixtures placed by
Tenant in the Building, and if Landlord elects to pay the same or if the
assessed value of Landlord's property is increased by inclusion of personal
property and trade fixtures placed by Tenant on the property and Landlord elects
to pay the taxes based on such increase, Tenant shall pay to Landlord as
additional rent hereunder, within ten (10) days of demand, the amount of such
taxes paid by Landlord.
3.7. If at any time during the term of this Lease, the present method
of taxation shall be changed so that in lieu of the whole or any part of any
taxes, assessments, levies, or charges levied, assessed or imposed on the
Building or land associate therewith, there shall be levied, assessed or imposed
on Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax assessment, levy or charge measured by or based, in whole
or in part, upon such rents on the present or any future
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building or buildings on the property then all such taxes, assessments, levies
or charges, or the part thereof so measured or based so long as such taxes are
not income, estate or inheritance taxes, shall be deemed to be included within
the term "Taxes" for the purposes hereof.
3.8. LATE CHARGE. In the event Tenant fails to pay to Landlord, when
due, any installment of rental or other sum to be paid to Landlord which may
become due in this Lease, Landlord will incur additional expenses in an amount
not readily ascertainable and which has not been elsewhere provided for between
Landlord and Tenant. If Tenant should fail to pay to Landlord, when due, any
installment of rental or other sum to be paid hereunder, Tenant will pay
Landlord as additional rent a late charge of five percent (5%) of the amount
due. If the Tenant fails to pay any such sums within ten (10) days after the due
date such unpaid amount shall bear interest from the due date thereof to the
date of payment at an annual rate equal to the lesser of twelve percent (12%) or
the highest rate permitted by law. Provision for such late charge shall be in
addition to all other rights and remedies available to Landlord within this
Lease or at law or in equity and shall not be construed as liquidated damages or
limiting Landlord's remedies in any manner.
3.9. All payments to be made by Tenant to Landlord pursuant to this
Lease shall be made by check payable to Manor Care, Inc., and delivered to
Landlord at Landlord's Address or to such other person and place as may be
designated by notice in writing from Landlord to Tenant from time to time.
3.10. Unless otherwise agreed in writing between Landlord and Tenant,
no payment by Tenant or receipt by Landlord of a lesser amount than the monthly
installments of rent stipulated shall be deemed to be other than on account of
the above-stipulated rent, nor shall any endorsement or statement on any check
or any letter accompanying any check or payments as rent be deemed an accord
with satisfaction, and Landlord may accept such check for payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy in this Lease provided.
ARTICLE IV. SECURITY DEPOSIT.
4.1. As security for the performance and observance by Tenant of all of
its obligations under this Lease, Tenant shall, upon execution of this Lease,
deposit with Landlord the sum specified in ARTICLE I, SECTION 1.1(P), which sum
shall be held by Landlord as a security deposit during the term of this Lease.
As additional security, Tenant shall deposit with the Landlord on the
later to occur of: (i) the date Landlord commences construction of Landlord's
Work ("hereinafter defined"), or (ii) 60 days after Landlord executes the
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Lease, a letter of credit in the amount of One Hundred Thousand Dollars
($100,000.00) ("Initial Letter of Credit"). In addition, Tenant shall deposit
with the Landlord three (3) days prior to the Commencement Date, an additional
letter of credit in the amount of Sixty-Six Thousand Dollars ($66,000.00)
("Additional Letter of Credit"). The Initial Letter of Credit, and when posted
the Additional Letter of Credit, shall be referred to herein as the "Letter of
Credit". The Letter of Credit shall be in the form of an irrevocable letter of
credit from a commercial bank (the "Issuer") of substantial financial standing
and otherwise reasonably acceptable to Landlord from which Landlord may draw in
the event of any default by Tenant under the terms of this Lease. The Letter of
Credit must be in writing, be in form and content reasonably acceptable to
Landlord, signed by the Issuer, made payable to the order of Landlord, be
assignable by the beneficiary thereunder at no additional cost to such
beneficiary, and must provide that, effective upon the date of issuance of the
Letter of Credit, the Issuer shall, upon written notice signed on behalf of
Landlord, immediately remit whatever amounts are specified in said notice, up to
and including the full face amount of the Letter of Credit. The Letter of Credit
shall, by its terms, be fully effective during a one (1) year period following
the date of issuance. Tenant shall arrange for the Letter of Credit to be
renewed, or replaced by an equivalent letter of credit, to provide continuing
identical security to Landlord during each subsequent one (1) year period and
during any remaining period under the Lease term (the last such extension to
provide for the continuance of the Letter of Credit for at least three months
beyond the Expiration Date). The Letter of Credit shall either provide that it
shall be automatically renewed by its terms throughout the duration of this
Lease or contain a provision that requires the Issuer to notify the beneficiary
at lease thirty (30) days prior to the expiration date of the Letter of Credit
that the Letter of Credit has not been renewed or replaced. No later than twenty
(20) days prior to the expiration date of each Letter of Credit, or renewal or
replacement thereof, Tenant shall provide written notice (and supporting
documentary evidence signed by the Issuer) to Landlord that the then effective
Letter of Credit has been so renewed or so replaced for the succeeding time
period. The failure of Tenant to maintain the Letter of Credit as herein
specified (including the failure to deliver evidence of the renewal or
replacement of the Letter of Credit within five days (5) days after Landlord
gives Tenant notice to correct, or the failure to increase the undrawn balance
of the Letter of Credit as herein provided) or the Issuer's refusal or failure
to permit Landlord to draw against the Letter of Credit shall be a default under
the terms of this Lease with the same effect as a default for failure to pay
Rent. In addition to all other remedies available to Landlord in the event of
default by Tenant under the terms of this Lease, Landlord shall have the
specific remedy of immediately drawing against the Letter of Credit in any
amount up to and including the full face amount of the Letter of Credit in the
event of any
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default by Tenant of any of the covenants or provisions of this Lease, except
that Landlord shall have the right to draw the full face amount of the Letter of
Credit in the event Tenant fails to renew or replace the Letter of Credit as
herein provided; in which events Landlord shall hold such amount as a cash
security deposit in accordance with the provisions of this Section. In the event
that Landlord draws against the Letter of Credit as provided for under this
paragraph, other than as a result of Landlord's draw of the full face amount of
the Letter of Credit as a result of Tenant's failure to renew or replace the
Letter of Credit as herein provided, then Tenant shall, upon demand by Landlord,
increase the then undrawn balance of the Letter of Credit to the amount provided
for herein. In the event that Tenant fails to so increase the then undrawn
balance of the Letter of Credit as herein provided, then Landlord shall be
entitled to draw the remaining balance of the Letter of Credit. It is
specifically agreed and understood that, in the event that Landlord has not
received from Tenant a Letter of Credit in form and substance acceptable to
Landlord, and in accordance with the provisions of this paragraph, including but
not limited to, the time frame provided in this Article 4.1, then this Lease
shall be, at the sole option of Landlord, null and void and of no further force
and effect. Notwithstanding the foregoing, if Tenant shall not then be in
default under the Lease and provided further that Landlord has not drawn upon
the Letter of Credit for any amounts due under the Lease, then upon the third
anniversary of the Commencement Date of the Lease, the Letter of Credit
requirement shall be eliminated.
Tenant shall also deposit with Landlord the sum specified in ARTICLE I,
SECTION 1.1(q), which sum shall be held by Landlord until the date of Lease
Commencement as a security deposit and then applied to the first months Base
Rent due. Landlord shall return the cash portion of the security deposit or
balance thereof then held by Landlord, without interest, to Tenant within sixty
(60) days after the expiration of this Lease or after Tenant surrenders
possession of the Demised Premises, whichever is later. In the event of a
default by Tenant in the payment of rent and/or to cure any other such default;
and if Landlord draws upon the Security Deposit, Tenant shall, upon request,
deposit with Landlord the amount so applied so that Landlord will have on hand
at all times during the term of this Lease the full amount of the security
deposit. Landlord shall not be required to hold the cash portion of the Security
Deposit as a separate account, but may commingle it with Landlord's other funds.
4.2. In the event of a sale of the property, Landlord shall have the
right to transfer the Security Deposit to its purchaser, and upon Landlord
transferring the Security Deposit to its Purchaser, Landlord shall thereupon be
released by Tenant from all responsibility for the return of such deposit; and
Tenant agrees to look solely to the new purchaser for the return of such
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deposit. In the event of an assignment of this Lease by Tenant, the Security
Deposit shall be deemed to be held by Landlord as a deposit made by the
assignee, and Landlord shall have no further responsibility for the return of
such deposit to the assignor.
ARTICLE V. CONSTRUCTION AND ACCEPTANCE OF THE DEMISED PREMISES.
5.1. Landlord agrees to perform the work described under "Description
of Landlord's Work" outlined in Exhibit B ("Landlord's Work"). Other than
Landlord's Work, Tenant accepts the Demised Premises in "as is" condition. The
Demised Premises shall be deemed to be "Ready for Delivery" when Landlord
certifies in writing to Tenant that Landlord has substantially completed
Landlord's Work subject to punch list items which Landlord agrees to correct
within a reasonable period of time. If the Demised Premises are not Ready for
Delivery, Landlord shall not be deemed to be in default hereunder or otherwise
liable in damages to Tenant, nor shall the length of the Lease Term be affected.
5.2. When the Demised Premises are Ready for Delivery, Tenant agrees to
accept and Landlord agrees to deliver possession thereof and to proceed with due
diligence to perform the work described under "Description of Tenant's Work" in
EXHIBIT B-1, ("Tenant's Work") all of such work to be performed in compliance
with EXHIBIT B-1, and to install its fixtures, furniture and equipment. Any
Tenant Work causing venting, opening, sealing, waterproofing or any altering of
the roof shall be performed by Landlord's roofing contractor at Tenant's
expense. Tenant shall provide Landlord with a certificate from Landlord's
roofing contractor that all of Tenant's Work described in EXHIBIT B-1 causing
venting, opening, sealing, waterproofing or in any other way altering the roof
has been performed in compliance with EXHIBIT B-1. Tenant holds Landlord
harmless from any damage to the Demised Premises resulting, directly or
indirectly, from Tenant's venting, opening, sealing, waterproofing or in any
other way altering the roof unless such a certificate from Landlord's roofing
contractor has been delivered to Landlord before the date of any such loss. In
the event of any dispute as to work performed or required to be performed by
Landlord or Tenant, the certificate of Landlord's architect or engineer shall be
conclusive. Tenant further agrees that, if requested by Landlord and if true,
Tenant will furnish Landlord with a written statement that Tenant has accepted
the Demised Premises and that Landlord has fully complied with Landlord's
covenants and obligations.
5.3. The Commencement Date of this Lease shall be the earlier of (a)
the date Landlord has completed Landlord's Work and Tenant secures a Use
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and Occupancy Permit for the Demised Premises or (b) the later of (i) October 1,
1997, or (ii) sixty days after the Ready for Delivery Date. Landlord and Tenant
each agree that, at the request of either, they will, following the Commencement
Date, execute and deliver an acknowledgment that Tenant has accepted possession
and reciting the exact Commencement Date and termination date of this Lease.
Notwithstanding the foregoing the parties agree that in no event shall the
Commencement Date be prior to October 1, 1997.
5.4. Notwithstanding the foregoing, Tenant shall be permitted
non-exclusive rent free access to perform Tenant's Work at reasonable times
after the execution date of the Lease provided (i) such access does not impair
Landlord's ability to perform Landlord's Work to the Demised Premises, (ii)
Tenant agrees to indemnify and hold Landlord harmless from all losses and
liability arising from such entry including reasonable attorneys's fees and
costs and (iii) Tenant presents Landlord evidence that Tenant has in force the
general liability insurance outlined in Article XIII.
ARTICLE VI. USES AND CARE OF PREMISES.
6.1. The Demised Premises may be used only for the purpose or purposes
specified in ARTICLE I, SECTION 1.1(r) above, and for no other purpose or
purposes without the prior written consent of Landlord. Tenant shall use in the
transaction of business in the Demised Premises the trade name specified in
ARTICLE 1, SECTION 1.1(c) above and no other trade name without the prior
written consent of Landlord.
6.2. Tenant shall not use the Demised Premises for any unlawful
purposes or acts; shall not commit or permit any waste or damage to the Demised
Premises; shall use and maintain the Demised Premises in compliance with (i) all
laws, codes, ordinances, rules, regulations and orders (collectively "Laws") of
any governmental authority or agency, including, without limitation, those
governing zoning, health, safety (including fire safety), and the occupational
hazards, pollution and environmental control, and handicapped accessibility
(including but not limited to any such laws imposing upon Landlord or Tenant any
duty respecting or triggered by any change in use or occupancy or any alteration
or improvement of, in or to the Demised Premises), and (ii) all reasonable
directions of the Landlord, including the Building rules and regulations,
attached hereto as EXHIBIT "D", as may be modified from time to time by Landlord
on reasonable notice to Tenant so long as such modifications do not have a
material adverse impact on Tenant's Permitted Use. Tenant shall use his best
efforts to cause its agents, employees, customers, invitees, licensees, and
concessionaires to comply with the Building rules and regulations and with the
covenants and
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agreements of this Section. With regard to the enforcement of the Rules and
Regulations as to other tenants, Landlord agrees that it shall not waive
enforcement if such waiver shall have a material adverse effect on Tenant's
business. To the extent of any inconsistency between the Rules and Regulations
and the Lease, the terms of the Lease shall control.
6.3. Tenant shall not, without Landlord's prior written consent, keep
anything within the Demised Premises for any purpose which increases the
insurance premium costs or invalidates any insurance policy carried on the
Demised Premises or other part of the property. Tenant shall pay as additional
rent, upon demand of Landlord, any such increased premium cost due to Tenant's
use or occupation of the property. All property kept, stored or maintained
within the property by Tenant shall be at Tenant's sole risk.
6.4. Tenant shall not conduct within the Demised Premises the retail
sale to the public of any items, nor conduct any fire, auction, going out of
business, liquidation or bankruptcy sales or operate within the Demised Premises
a "Wholesale" or "Factory Outlet" store, a cooperative store, a "Second Hand"
store, or a "Surplus" store. Tenant shall not permit any objectionable or
unpleasant odors to emanate from the Demised Premises, nor place or permit any
radio, television, loud-speaker, or amplifier on the roof or outside of the
Demised Premises, or where the same can be seen or heard from outside the
Demised Premises, nor place an awning, or other projection on the exterior of
the Demised Premises, (except an antenna and only as provided in the next
sentence); nor solicit business or distribute leaflets or other advertising
material on the property outside the Demised Premises; nor take any other action
which, in the reasonable judgment of Landlord, would constitute a nuisance or
would disturb or endanger other tenants of the Building or unreasonably
interfere with their use of their respective premises, nor do anything which
would tend to injure the reputation of the Building. Provided Tenant secure
Landlord's written consent which Landlord agrees not to unreasonably withhold,
condition or delay and to the extent permitted under the applicable governmental
laws, rules and regulations, Tenant may place one antenna on the roof of the
Building. Such placement shall be subject to Tenant agreeing to all of
Landlord's reasonable rules and regulations regarding the placement of an
antenna which may include, but are not limited to, such issues as Federal
Communications Commission compliance, securing permits and approvals, and not
causing interference with Landlord's equipment or other tenant's equipment.
6.5. Tenant shall take good care of the Demised Premises and keep the
same free from waste at all times. Tenant shall keep the Demised Premises neat,
clean and free from dirt, rubbish, insects and pests at all
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times, and shall store all trash and garbage within the Demised Premises or
within dumpsters which shall be kept against the side of the Building where
Tenant's loading docks are located. Tenant will store all trash and garbage
within the area designated by Landlord for such trash pickup and removal and
only in receptacles of the size, design and color from time to time prescribed
by Landlord. Receiving and delivery of goods and merchandise and removal of
garbage and trash shall be made only in the manner and areas from time to time
prescribed by Landlord.
6.6. Without the consent of Landlord which Landlord shall not
unreasonably withhold condition or delay, Tenant shall not move any furniture or
equipment into or out of the Demised Premises except at such times as Landlord
may from time to time designate in writing to all tenants.
6.7. Tenant shall not allow any animals other than seeing eye dogs into
the Building or land associated therewith whatsoever.
6.8. Tenant shall procure, at its sole expense, any permits and
licenses required for the transaction of business in the Demised Premises and
otherwise comply with all applicable laws, ordinances and governmental
regulations. Landlord makes no representation or warranty, expressed or implied,
with regard to the fitness of the Demised Premises or the property for the
Tenants intended use or for any particular purpose except that Landlord shall
not knowingly deliver the Demised Premises in material noncompliance with any
applicable law. Tenant shall bear the cost of all alterations or improvements to
the Building or Demised Premises required by any applicable laws, ordinances or
governmental regulation based upon Tenant's use of the property.
6.9. Tenant's employees shall have reasonable access to the Demised
Premises twenty-four (24) hours per day three hundred sixty-five (365) days per
year except in the event of an emergency.
ARTICLE VII. LANDLORD'S SERVICES.
7.1. Landlord covenants and agrees that it will:
(a) keep the foundation, the exterior walls and roof of the
Demised Premises in good repair;
(b) Repair and replace (except as provided differently in this
Lease), and maintain the landscaping, parking areas and other common
facilities on the Land in good condition, subject to Tenant not being
in default under the Lease.
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7.2. Failure by Landlord to any extent to furnish the above described
services, or any cessation thereof, shall not render Landlord liable for damages
to either person or property, nor be construed as an eviction of Tenant, nor
give Tenant the right to an abatement of Rent, nor relieve Tenant from the
obligation to fulfill any covenant or agreement hereof, unless such failure to
provide services is a result of the gross negligence of Landlord or Landlord's
agents. Should any of the Building equipment or machinery break down, or for any
cause cease to function properly, Landlord shall use reasonable diligence to
repair the same promptly, and Tenant shall have no claim for an abatement of
rent or damages on account of any interruptions in service occasioned thereby or
resulting therefrom.
7.3. Landlord shall not be required to make any repairs occasioned by
the wrongful act or negligence of Tenant, its agents, employees, subtenants,
licensees and concessionaires, which repairs shall be made by Tenant. In the
event that the Demised Premises should become in need of repairs required to be
made by Landlord hereunder, Tenant shall give immediate written notice thereof
to Landlord and Landlord shall not be responsible in any way for failure to make
such repairs until a reasonable time shall have elapsed after delivery of such
written notice. Landlord's obligation hereunder is limited to repairs specified
in this article only, and Landlord shall have no liability for any damages or
injury arising out of any condition or occurrence causing a need for such
repairs. The cost of such repairs and maintenance shall be included in the
Operating Expenses, unless caused by the negligence or willful misconduct of
Landlord.
7.4. Tenant shall keep the Demised Premises in good clean condition and
shall, at its sole cost and expense, make all needed repairs and replacements
including replacement of cracked or broken glass, except for repairs and
replacements expressly required to be made by Landlord under the provisions of
ARTICLE VII, SECTION 7.1, ARTICLE XI, SECTION 11.1 AND ARTICLE XV, SECTION 15.3.
If any repairs required to be made by Tenant hereunder are not made within ten
(10) days after written notice delivered to Tenant by Landlord except in the
event of an emergency in which case no advance notice need be given. Unless
Tenant is diligently working to make such repairs, Landlord may, at its
discretion, make such repairs without liability to Tenant for any loss or damage
which may result to its stock or business by reason of such repairs, and Tenant
shall pay to Landlord immediately upon demand as additional rental hereunder the
cost of such repairs plus ten percent (10%) of the amount thereof and failure to
do so shall constitute an event of default hereunder.. At the expiration of this
Lease, Tenant shall surrender the Demised Premises in good condition, reasonable
wear and tear, and damage by fire and casualty (to the extent such fire and
casualty damage is covered by Landlord's insurance) excepted, and shall
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surrender all keys for the Demised Premises to Landlord and shall inform
Landlord of all combinations on locks, safes and vaults, if any, in the Demised
Premises.
ARTICLE VIII. ALTERATIONS.
8.1. Tenant shall not make any alterations, additions, or improvements
to the Demised Premises of a structural nature without the prior written consent
of Landlord, which Landlord may grant or deny in its sole discretion. Except for
improvements of a decorative nature, Tenant shall not make any nonstructural
improvements without the prior written consent of Landlord which consent
Landlord may grant or deny in its reasonable discretion. All alterations,
additions, improvements and fixtures, except any trade fixtures installed in the
Demised Premises at the sole expense of Tenant and which can be removed without
causing material damage to the Building, shall remain upon and be surrendered
with the Demised Premises and become the property of Landlord at the termination
of this Lease (except for trade fixtures which Tenant may remove in its
discretion provided Tenant restores the Demised Premises to good condition after
such removal), unless Landlord requests their future removal at the time of
installation in which event Tenant shall remove the same and restore the Demised
Premises to their original condition at Tenant's expense. Any linoleum,
carpeting or other floor covering which may be cemented or otherwise affixed to
the floor of the Demised Premises is a permanent fixture and shall become the
property of the Landlord without credit or compensation to Tenant.
8.2. All construction work done by Tenant within the Demised Premises
shall be performed in a good and workmanlike manner, in compliance with all
governmental requirements, and the requirements of any contract or deed or trust
to which the Landlord may be a party and in such manner as to cause a minimum of
interference with other construction in progress and with the transaction of
business in the Building. Tenant agrees to indemnify Landlord and hold it
harmless against any loss, liability or damage resulting from such work, and
Tenant shall, if requested by Landlord, furnish bond or other security
satisfactory to Landlord against any loss, liability or damage.
ARTICLE IX. LANDLORD'S RIGHT OF ACCESS AND USE.
9.1. Except in the event of an emergency in which case Landlord shall
have the right to enter at any time, Landlord shall have the right to enter upon
the Demised Premises at any reasonable time after reasonable notice to Tenant
for the purpose of inspecting the same, or of making repairs to the Demised
Premises, or of making repairs, alterations or additions to adjacent premises,
or of showing the Demised Premises to prospective purchasers,
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tenants (within the last one hundred twenty days of the Lease Term), or lenders.
9.2. Landlord may, within one hundred twenty (120) days prior to the
expiration of the Lease Term, post and maintain notices, free from hindrance or
control of Tenant, so long as such notices do not materially interfere with
Tenant's business.
9.3. Use of the roof above the Demised Premises is reserved to
Landlord.
9.4. In addition to the rights specified elsewhere in this Lease,
Landlord shall have the following rights regarding the use of the Demised
Premises or the property by Tenant, its employees, agents, customers and
invitees, each of which may be exercised without notice or liability to Tenant:
(a) Landlord may install such signs, advertisements or notices
or Tenant identification information on or in the Building, on the
property or on the directory board or Tenant access doors as it shall
deem necessary or proper, so long as such installation does not have a
material adverse impact on Tenant's business.
(b) Landlord shall approve or disapprove, prior to
installation, all types of drapes, shades and other window coverings
used in the Demised Premises visible from outside the Demised Premises,
and may control all internal lighting and signage that may be visible
from outside the Demised Premises.
(c) Landlord may grant to any person the exclusive right to
conduct business or render any service in the Building, provided that
such exclusive right shall not operate to limit Tenant from using the
Demised Premises for the use permitted in Article I, Section 1. 1 (r),
nor preclude Tenant from entering any operating or services contracts.
(d) Landlord may control the use of the property in such
manner as it deems necessary or proper, including by way of
illustration and not limitation: requiring all persons entering or
leaving the Building to identify themselves and their business in the
Building to a security guard; excluding or expelling any peddler,
solicitor or loud or unruly person from the Building; closing or
limiting access to the Building or any part thereof, including
entrances, corridors, doors and elevators, during times of emergency,
repairs or after regular business hours.
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ARTICLE X. SIGNS.
10.1. All newly installed signs, decorations and advertising media
shall conform in all respects to the sign criteria established by Landlord for
the Building from time to time in the exercise of its sole discretion, and shall
be subject to the prior written approval of Landlord as to construction, method
of attachment, size, shape, height, lighting, color, location and general
appearance. All signs shall be kept in good condition and in proper operating
order at all times. Landlord approves Tenant's exterior signage in the location
on the Land as depicted on Exhibit F and the size, shape, and color scheme shown
on Exhibit F; provided however, Tenant's right to such signage is contingent on
Tenant securing all necessary governmental approvals and Landlord makes no
representation or warranty as to whether Tenant can secure such approvals; and
provided further, this Lease is in no way contingent on Tenant securing such
signage. Tenant shall be responsible for the cost of its exterior signage and
for ensuring that its exterior signage is in compliance with all applicable
Federal, State and local laws, ordinances, rules and regulations.
ARTICLE XI. UTILITIES.
11.1. Tenant shall pay when due all charges for all utilities and
services for every kind supplied to or imposed against the Demised Premises,
including without limitation water, air conditioning, sewage, heat, gas,
sprinkler charges, light, garbage, electricity, telephone, steam, power, or
other public or private utilities (collectively, "Utilities"). Landlord agrees
that the electricity service shall be no less than 480 volts and 1200 amps.
Tenant shall also pay for all Utilities used by it or its agents, employees or
contractors prior to the Commencement Date. Landlord at its expense shall either
install separate meters for Tenant's utilities or submeters. The choice of which
method to use shall be determined in Landlord's discretion. If in Landlord's
reasonable discretion, it is not feasible to separately meter the Demised
Premises, Tenant shall pay to Landlord as Additional Rent, Tenant's pro rata
share, as reasonably determined by Landlord (which determination shall include a
reasonable allocation of the actual use by each tenant of such Utilities and a
reasonable allocation of any excess use premiums) of all charges for jointly
metered or billed Utilities. Landlord agrees that at the time it requests
payment from Tenant for such submetered utilities, Landlord shall provide Tenant
reasonable back-up documentation in support of the request for payment. Landlord
does not represent or warrant the uninterrupted availability of such utilities
and any such interruption shall not be deemed an eviction or disturbance of
Tenant's right to possession, or render Landlord liable to Tenant for damages by
abatement of
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rent or otherwise, or relieve Tenant from the obligation to fully and timely
perform its obligations and covenants under this Lease.
11.2. In the event any public utility company supplying energy, water,
sewer or other utility, or governmental law, regulation, executive or
administrative order requires that Landlord or Tenant reduce or maintain at a
certain level the consumption of a utility and such requirement affects the
HVAC, light, use of or hours of operation of the Demised Premises or Building,
Landlord and Tenant shall each adhere to and abide by said laws, regulations or
executive orders without any reduction in Rent.
ARTICLE XII. INDEMNITY, PUBLIC LIABILITY INSURANCE AND FIRE AND
EXTENDED COVERAGE INSURANCE.
12.1. Landlord shall not be liable to Tenant or to Tenant's employees,
agents or visitors, or to any other person or entity, whatsoever, for any injury
to person or damage to or loss of property on or about the Demised Premises or
the property caused by the negligence or misconduct of Tenant, its employees,
subtenants, licensees or concessionaires, or of any other person entering the
Building under the express or implied invitation of Tenant or arising out of the
use of the Demised Premises by Tenant and the conduct of its business therein,
or arising out of any breach or default by Tenant in the performance of its
obligations hereunder or resulting from any other cause occurring in the Demised
Premises except Landlord's gross negligence, and Tenant agrees to indemnify
Landlord and hold Landlord harmless from any loss, expense or claims arising out
of such damage or injury.
12.2. Landlord and Tenant agree and covenant that neither shall be
liable to the other for loss arising out of damage to or destruction of the
Demised Premises or contents thereof when such loss is caused by any perils
included within standard fire and extended coverage insurance policies for
buildings similar to the Building in the state in which the Demised Premises is
situated. This agreement shall be binding whether or not such damage or
destruction be caused by negligence of either party or their agents, licensees,
employees or visitors.
12.3. Landlord shall indemnify and hold harmless Tenant from all
damages or losses suffered and claims advanced by third persons relating to
occurrences in the common area of the Building and the Land, except if caused by
Tenant, its agents or employees.
ARTICLE XIII. TENANT'S INSURANCE AND LANDLORD'S INSURANCE.
13.1. Tenant agrees, at its sole cost, to carry and keep in full force
and effect at all times during the term of this Lease, a comprehensive general
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liability policy with a single limit of at least Five Million Dollars
($5,000,000.00), including coverage for bodily injury, property damage,
contractual liability for this Lease and personal injury liability.
13.2. Tenant agrees, at its sole cost, to carry and keep in full force
and effect at all times during the term of this Lease Comprehensive Automobile
Liability (owned, non-owned or hired) with a single limit of at least Five
Million Dollars ($5,000,000.00) including coverage for bodily injury and
property damage.
13.3. Tenant shall obtain extended fire and casualty insurance insuring
against loss to the Demised Premises (including any improvements thereon). Such
insurance shall be in the form and amount reasonably satisfactory to Landlord,
and Tenant shall, when requested from time to time by Landlord, provide Landlord
with evidence of such insurance. Such insurance shall contain waiver of
subrogation provisions in favor of Landlord and its agents.
13.4. Tenant agrees to carry and keep in full force and effect at all
times during the term of this Lease, at its sole cost, worker's compensation or
similar insurance in form and amounts required by law and employer's liability
insurance in the amount of $100,000.00 per accident.
13.5. Intentionally Deleted.
13.6. Tenant's comprehensive general liability insurance policy and
comprehensive automobile liability insurance policy, and certificates evidencing
such insurance shall name Landlord and its property manager of the Building as
additional insureds and shall also contain a provision by which the insurer
agrees that such policy shall not be canceled except after thirty (30) days
written notice to Landlord. Any liability insurance carried or to be carried by
Tenant hereunder shall be primary over any policy that might be carried by
Landlord. If Tenant shall fail to obtain or maintain such insurance, Landlord
may obtain, after providing written notice to Tenant with a thirty (30) day
opportunity to cure, such insurance on Tenant's behalf and the cost shall be
deemed additional rent and shall be payable upon Landlord's demand.
13.7. Landlord shall obtain and keep in force, during the term of this
Lease standard all-risk fire (boiler and machinery coverage) and casualty
insurance covering the Building in an amount at least equal to 80% of the
replacement cost of the Building at the time in question. In addition Landlord
agrees to carry and keep in full force and effect at all times during the term
of this Lease, a comprehensive general liability policy with a single limit of
at least Five Million Dollars ($5,000,000.00), including coverage for bodily
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injury, property damage, contractual liability for this Lease and personal
injury liability.
13.8. Landlord and Tenant mutually covenant and agree that each party,
in connection with insurance policies required to be furnished in accordance
with the terms and conditions of this Lease, whether personal or real, shall
expressly waive any right of subrogation on the part of the insurer against the
Landlord (and any mortgagee requested by Landlord) or Tenant as the same may be
applicable, which right to the extent not prohibited or violative of any such
policy is hereby expressly waived, and Landlord and Tenant each mutually waive
all right of recovery against each other, their agents, or employees for any
loss, damage or injury of any nature whatsoever to property of person for which
either party is required by this Lease to carry insurance.
ARTICLE XIV. NON-LIABILITY FOR CERTAIN DAMAGES.
14.1. Landlord and Landlord's agents and employees shall not be liable
to Tenant or any other person or entity whomsoever for any injury to person or
damage to property caused by the Demised Premises or other portions of the
property becoming out of repair or by defect in or failure of equipment, pipes
or wiring, or broken glass, or by the backing up of drains, or by gas, water,
steam, electricity or oil leaking, escaping or flowing into the Demised
Premises, nor shall Landlord be liable to Tenant or any other person or entity
whomsoever from any loss or damage that may be occasioned by or through the acts
or omissions of other tenants of the Building or of any other persons or entity
whomsoever. Tenant shall indemnify and hold harmless Landlord, its affiliated
companies and its and their agents and employees from any loss, cost, expense or
claims arising out of such injury or damage referred to in this ARTICLE XIV,
SECTION 14.1.
14.2. In the event of any violation of this Lease by Landlord, Tenant's
exclusive remedy shall be an action for damages (Tenant waiving the benefit of
any laws granting it a lien upon the property of Landlord and/or upon rent due
the Landlord), but prior to any such action Tenant will give Landlord written
notice specifying such violation with particularity, and Landlord shall
thereupon have thirty (30) days in which to cure any such violation. Unless and
until Landlord fails to so cure any violation after such notice, Tenant shall
not have any remedy or cause of action by reason thereof. All obligations of
Landlord hereunder will be construed as covenants, not conditions; and all such
obligations will be binding upon Landlord only during the period of its
ownership of the property and not thereafter.
The term "Landlord" shall mean only the owner, for the time being, of the
property and in the event of the transfer by such owner of its interest in the
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property such owner shall thereupon be released and discharged from all
covenants and obligations of the Landlord thereafter accruing, but such
covenants and obligations shall be binding during the Lease term upon each new
owner for the duration of such owner's ownership.
Notwithstanding any other provision hereof, Landlord shall not have any personal
liability hereunder. In the event of any breach or default by Landlord in any
term or provision of this Lease, Tenant agrees to look solely to the equity or
interest then owned by Landlord in the land and improvements which constitute
the property; however, in no event shall any deficiency judgment or any money
judgment of any kind be sought or obtained against Landlord or affiliated
companies.
ARTICLE XV. DAMAGE BY CASUALTY.
15.1. Tenant shall give immediate written notice to Landlord of any
damage caused to the Demised Premises by fire or other casualty.
15.2. If the Building shall (i) be destroyed or substantially damaged
by a casualty not covered by Landlord's insurance; (ii) be destroyed or rendered
untenantable to an extent in excess of fifty percent (50%) of the first floor
area by a casualty covered by Landlord's insurance; or (iii) be damaged to such
extent that the remaining term of this Lease is not sufficient to amortize the
cost of reconstruction, then Landlord may elect either to terminate this Lease
as hereinafter provided or to proceed to rebuild and repair the Demised
Premises. Should Landlord elect to terminate this Lease, it shall give written
notice of such election to Tenant within ninety (90) days after the occurrence
of such casualty. If Landlord should not elect to terminate this Lease, Landlord
shall proceed with reasonable diligence and at its sole expense to rebuild and
repair the Demised Premises. In the event Landlord elects to rebuild and repair
the Demised Premises and in Landlord's reasonable discretion the time in which
to perform such work will exceed one hundred eighty (180) days, then Landlord
shall notify Tenant of same and Tenant shall have the option to terminate the
Lease provided Tenant notifies Landlord of Tenant's election to terminate the
Lease within ten (10) days of receiving Landlord's notice.
15.3. Landlord's obligation to rebuild and repair under this ARTICLE XV
shall in any event be limited to restoration to substantially the condition in
which the Demised Premises (exclusive of the items designated as Tenant's Work
as described in EXHIBITS B-1 AND C) existed prior to the casualty, and shall be
further limited to the extent of the insurance proceeds available to Landlord
for such restoration, and Tenant agrees that promptly after the completion of
such work by Landlord, it will proceed with reasonable diligence and at its sole
cost and expense to rebuild, repair and restore its
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signs, fixtures, equipment and other items of Tenant's Work as described in
EXHIBITS B-1 AND C.
15.4. Tenant agrees that during any period of reconstruction or repair
of the Demised Premises it will continue operation of its business within the
Demised Premises to the extent practicable. During the period from the
occurrence of the casualty until Landlord's repairs are substantially completed,
the Annual Base Rent shall be reduced to such extent as may be fair and
reasonable under the circumstances. However, there shall be no abatement of the
Tenant's Proportionate Share of Operating Expenses, Taxes or other charges
provided herein.
15.5. All damage or injury to the Demised Premises or the Building
caused by the act or omission of Tenant, its employees, agents, invitees,
licensees or contractors, shall be promptly repaired by Tenant at Tenant's sole
cost and expense, to the satisfaction of Landlord except to the extent covered
by insurance carried by Landlord; provided, however, Tenant shall pay any
deductible under Landlord's policy required to be paid thereunder.
ARTICLE XVI. EMINENT DOMAIN.
16.1. If more than twenty percent (20%) of the floor area of the
Demised Premises should be taken for any public or quasi-public use under
governmental law, ordinance or regulation, or by right of eminent domain or by
private purchase in lieu thereof, this Lease shall terminate and the rent shall
be abated during the unexpired portion of this Lease, effective on the date
physical possession is taken by the condemning authority.
16.2. If some portion of the Building or the land associated therewith,
but less than twenty percent (20%) of the floor area of the Demised Premises
should be taken as aforesaid, then at the Landlord's option this Lease shall
either terminate and the Annual Base Rent shall be abated during the unexpired
portion of this Lease, effective on the date physical possession is taken by the
condemning authority or this Lease shall not terminate in which case the Annual
Base Rent payable hereunder during the unexpired portion of this Lease shall be
reduced in proportion to the area taken, effective on the date physical
possession is taken by the condemning authority. Following such partial taking,
Tenant shall make all necessary repairs or alterations within the scope of
Tenant's Work as described in EXHIBITS B-1 AND C necessary to make the Demised
Premises an architectural whole.
16.3. All compensation awarded for any taking (or the proceeds of
private sales in lieu thereof) of the Demised Premises or the property shall be
the property of Landlord, and Tenant assigns its interest in any such award to
Landlord; provided, however, Landlord shall have no interest in any award
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made to Tenant for loss of business or the taking of Tenant's fixtures and other
property if a separate award for such items is made to Tenant.
ARTICLE XVII. ASSIGNMENT AND SUBLETTING.
17.1. Tenant shall not assign or transfer all or any portion of its
interest in this Lease or in the Demised Premises, or sublet all or any portion
of the Demised Premises, without the prior written consent of Landlord, which
consent may be withheld at the sole and absolute discretion of the Landlord.
Notwithstanding the foregoing, Landlord agrees that provided Tenant is not in
default under the Lease, Landlord shall not withhold its consent to Tenant
assigning its interest in the Lease or in the Demised Premises or subletting all
or any portion of the Demised Premises to a (i) subsidiary or affiliate of
Tenant; (ii) any corporation or entity in which or with which Tenant, its
permitted successors or permitted assigns, is merged or consolidated, in
accordance with applicable statutory provisions for merger or consolidation of
entities: or (iii) in connection with an acquisition (including without
limitation, the sale of the majority of the shares of stock of the Tenant
corporation provided the subtenant or assignee (a) can demonstrate to Landlord,
in its reasonable discretion, by balance sheets and other financial
documentation submitted to Landlord that it is capable of servicing all of
Tenant's financial obligations under this Lease, and (b) has a credit rating
satisfactory to Landlord (in Landlord's reasonable judgment). Any assignment or
sublease without the Landlord's prior written consent shall be voidable and, at
Landlord's election, shall constitute a default of Tenant hereunder. Consent by
Landlord to one or more assignments or subletting shall not operate as a waiver
of Landlord's rights with respect to any subsequent assignment or subletting.
The term "sublet" shall be deemed to include the granting of licenses,
concession, and any other rights of occupancy of any portion of the Demised
Premises. In the event of any assignment or subletting, Tenant shall remain
liable under the Lease. Landlord agrees to respond to Tenant's request to
sublease or assign within twenty (20) days of written notice from Tenant;
provided, at the time of the request, Tenant provides Landlord with the
necessary materials to consider adequately such a request.
17.2. In the event of the transfer and assignment by Landlord of its
interest in this Lease or in the property to a person expressly assuming
Landlord's obligations under this Lease, Landlord shall thereby be released from
any further obligations hereunder, and Tenant agrees to look solely to such
successor in interest of the Landlord for performance of such obligations. Any
such security given by Tenant to secure performance of Tenant's obligations
hereunder may be assigned and transferred to such successor in
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interest, and Landlord shall thereby be discharged of any further obligations
relating thereto.
17.3. Tenant shall not mortgage, pledge or otherwise encumber its
interest in this Lease or in the Demised Premises.
17.4. In no case may Tenant assign any options granted to Tenant
hereunder, all such options being deemed personal to Tenant and exercisable by
Tenant only.
17.5. Any request by Tenant for approval to sell or sublet the Demised
Premises or to transfer or assign Tenant's interest in this Lease, shall be
accompanied by a processing charge in the amount of Three Hundred Dollars
($300.00) payable to Landlord.
17.6. In the event Landlord approves Tenant subletting or assigning
this Lease and the subtenant or assignee is paying to Tenant an amount in excess
of that paid by Tenant to Landlord under this Lease (which such amount shall be
deemed the aggregate sum of all payments by subtenants to Tenant), then fifty
percent (50%) of any such excess amounts shall be deemed rent under this
Agreement and shall be immediately paid by Tenant to Landlord. If any court of
law should find this provision invalid, then, in such event, Tenant shall be
prohibited from subletting or assigning this Lease for an amount in excess of
the amounts paid by Tenant to Landlord pursuant to the terms of this Lease.
ARTICLE XVIII. DEFAULT BY TENANT AND REMEDIES.
18.1. The following events shall be deemed to be defaults or events of
default by Tenant under this Lease:
(a) Tenant shall fail to pay any installment of rental or any
other expense within five (5) days after receiving written notice
thereof from Landlord.
(b) Tenant shall fail to comply with any term, provision or
covenant in this Lease, other than the payment of rental or expenses
demanded by Landlord and shall not cure such failure within twenty (20)
days after receiving written notice thereof from Landlord; provided
however if Tenant is diligently pursuing a cure Tenant shall have an
additional reasonable time to effect a cure.
(c) Tenant or any guarantor of Tenants obligations under this
Lease shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
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(d) Tenant or any guarantor of Tenant's obligations under this
Lease shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or
statute of the United States or any State thereof; or Tenant or any
guarantor of Tenant's obligations under this Lease shall be adjudged
bankrupt or insolvent in proceedings filed against Tenant or any
guarantor of Tenant's obligations under this Lease and such proceedings
such adjudication shall have continued for a period of thirty (30)
days.
(e) A receiver or Trustee shall be appointed for all or
substantially all of the assets of the Tenant or any guarantor of
Tenant's obligations under this Lease and such appointment shall have
continued for a period of thirty (30) days.
(f) Tenant shall desert or vacate the Demised Premises, or
Tenant shall, for a period of thirty (30) days or more, fail to occupy
the Demised Premises or a substantial portion thereof or fail to be
open for business.
(g) Tenant shall do or permit to be done anything which
creates a lien upon the Demised Premises and such lien is not released
or bonded off within fifteen (15) days.
(h) The Tenant shall be prohibited to occupy the Demised
Premises by any governmental agency.
18.2. Upon the occurrence of any such events of default, Landlord shall
have the option to pursue any one or more of the following remedies without any
notice or demand whatsoever:
(a) Terminate this Lease in which event Tenant shall
immediately surrender the Demised Premises to Landlord, and if Tenant
fails to do so, Landlord may, without prejudice to any other remedy
which he may have for possession or arrearages in rental, enter upon
and take possession of the Demised Premises and expel or remove Tenant
and any other person who may be occupying said premises or any part
thereof, under process of law, without being liable for prosecution or
any other claim of damages.
(b) Enter upon and take possession of the Demised Premises and
expel or remove Tenant and any other person who may be occupying said
premises or any part, under process of law, without being liable for
prosecution or any claim for damages with or without having terminated
the Lease.
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(c) Enter upon the Demised Premises by force, if necessary,
without being liable for prosecution or any claim for damages, and do
whatever Tenant is obligated to do under the terms of this Lease, and
Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in effecting compliance with Tenant's obligations
under this Lease, and Tenant further agrees that Landlord shall not be
liable for any damages resulting to the Tenant from such action.
18.3. In the event Landlord elects to terminate the Lease by reason of
an event of default, then notwithstanding such termination, Tenant shall be
liable for, and shall pay to Landlord, at the address specified for notice to
Landlord, the sum of all rental and other indebtedness accrued to date of such
termination plus, as damage, an amount equal to the difference between (i) the
total rental including Annual Base Rent, Tenant's Proportionate Share of
Operating Expenses and Tax Escrow Payments for the remaining portion of the
Lease term (had such term not been terminated by Landlord prior to the date of
expiration stated in ARTICLE I); and (ii) the then-present value of the fair
rental value of the Demised Premises for such period.
18.4. In the event that Landlord elects to repossess the Demised
Premises without terminating the Lease, then Tenant shall be liable for and
shall pay to Landlord, at the address specified for notice to Landlord, all
rental and other indebtedness accrued to the date of such repossession, plus, as
damage, an amount equal to the total rent including Annual Base Rent, Tenant's
Proportionate Share of Operating Expenses and Tax Escrow Payments for the
remainder of the Lease term until the date of expiration of the term as stated
in ARTICLE I diminished by any net sums thereafter received by Landlord through
reletting the Demised Premises during said period (after deducting expenses
incurred by Landlord as provided in ARTICLE XVIII, SECTION 18.5 hereof). In no
event shall Tenant be entitled to any excess of any rental obtained by reletting
over and above the rental herein reserved. Actions to collect amounts due from
tenant to Landlord may be brought from time to time on one or more occasions,
without the necessity of Landlord's waiting until expiration of the Lease term.
18.5. In case of any event of default or breach by Tenant, Tenant shall
also be liable for and shall pay to Landlord, at the address specified for
notice herein, in addition to any sum provided to be paid above, brokers fees
incurred by Landlord in connection with reletting the whole or part of the
Demised Premises (with the amount of the broker's fee to be amortized so that
the Tenant's portion will reflect the amount applicable over the period which
would have constituted the unexpired portion of the Term; the costs of removing
and storing Tenant's or other occupant's property; the cost of
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repairing, altering, remodeling or otherwise putting the Demised Premises into
condition acceptable to a new tenant or tenants, and all reasonable expenses
incurred by Landlord in enforcing or defending Landlord's rights and/or
remedies, including reasonable attorneys' fees which shall not be less than
fifteen percent (15%) of all sums then owing by Tenant to Landlord.
18.6. In the event of termination or repossession of the Demised
Premises for an event of default, Landlord shall use commercially reasonable
efforts to relet or attempt to relet the Demised Premises, or any portion
thereof, or to collect rental after reletting. Landlord may relet the whole or
any portion of the Demised Premises for any period, to any Tenant, and for any
use and purpose.
18.7. If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligations to do so and without waiving such default, may make such payment
and/or remedy such other default for the account of Tenant (and enter the
Demised Premises for such purpose), and thereupon Tenant shall be obligated to,
and agrees to, pay Landlord, as additional rent, upon demand, all costs,
expenses and disbursements (including reasonable attorneys' fees) incurred by
the Landlord in taking such remedial action.
18.8. In the event that Landlord shall have taken possession of the
Demised Premises pursuant to the authority herein granted, then Landlord shall
have the right to remove from the Demised Premises (without the necessity of
obtaining a distress warrant, writ of sequestration or other legal process) all
or any portion of such furniture, fixtures, equipment and other property located
thereon and place same in storage at any premises within the County in which the
Demised Premises is located; and in such event, Tenant shall be liable to
Landlord for costs incurred by Landlord in connection with such removal and
storage and shall indemnify and hold harmless Landlord from all loss, damage,
cost, expense and liability in connection with such removal and storage.
Landlord shall also have the right to relinquish possession of all or any
portion of such furniture, fixtures, equipment and other property to any person
("Claimant") claiming to be entitled to possession thereof who presents to
Landlord a copy of any instrument represented to Landlord by Claimant to have
been executed by Tenant (or any predecessor of Tenant) granting Claimant the
right under various circumstances to take possession of such furniture,
fixtures, equipment or other property, without the necessity on the part of
Landlord to inquire into the authenticity of said instrument's copy of Tenant's
or Tenant's predecessor's signature thereon and without the necessity of
Landlord's making any nature of investigation or inquiry as to the validity of
the factual or legal basis upon which Claimant purports to act; and Tenant
agrees to
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indemnify and hold Landlord harmless from all costs, expense, loss, damage, and
liability incident to Landlord's relinquishment of possession of all or any
portion of such furniture, fixtures, equipment or other property by Claimant.
The rights of Landlord herein stated shall be in addition to any and all other
rights which Landlord has or may hereafter have at law or in equity; and Tenant
stipulates and agrees that the rights herein granted Landlord are commercially
reasonable.
ARTICLE XIX. LANDLORD'S LIEN.
19.1. Intentionally Deleted.
ARTICLE XX. HOLDING OVER.
20.1. In the event Tenant remains in possession of the Demised Premises
after the expiration of this Lease and without the execution of a new Lease, it
shall be deemed to be occupying said Demised Premises as a Tenant from month to
month at a rental equal to the rental (including Annual Base Rent, Tenant's
Proportionate Share of Operating Expenses and Taxes) herein provided, plus fifty
percent (50%) of such amount and otherwise subject to all the conditions,
provisions and obligations of this Lease insofar as the same are applicable to a
month to month tenancy.
ARTICLE XXI. SUBORDINATION; ATTORNMENT; AND ESTOPPEL CERTIFICATES.
21.1. Tenant accepts this Lease subject and subordinate to any
mortgage, deed of trust or other lien presently existing or hereafter created
upon the property and to any renewals and extensions thereof. Landlord is
irrevocably vested with full power and authority to subordinate this Lease to
any mortgage, deed of trust or other lien hereafter placed upon the property and
Tenant agrees upon demand to execute such further instrument subordinating this
Lease as Landlord may request, and if Tenant shall fail at any time to execute,
seal and deliver any such instrument to Landlord, in addition to any other
remedies available to it in consequence thereof, such failure shall be deemed a
default under the Lease. Notwithstanding anything herein to the contrary,
Landlord agrees to make a reasonable effort to secure from any present
lienholder, and any present prime, master or ground lessor a nondisturbance
agreement that provides that as long as Tenant is not in default under the
Lease, such lienholder, or prime, master or ground lessor or any purchaser at
foreclosure or other sale will not be entitled to disturb Tenant's possession or
use of the Demised Premises. In the event Landlord does not secure such a
nondisturbance agreement within seven business days after the mutual execution
of this Lease, then Tenant may terminate the Lease provided it gives Landlord
written notice of termination within thirty
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days of the mutual execution of the Lease. If Tenant does not give such notice
in a timely manner, then such right to terminate shall expire. Notwithstanding
anything herein to the contrary, as a condition to Tenant subordinating the
Lease in the future to any future lienholders, and any future prime master or
ground lessor, Landlord agrees to secure a nondisturbance agreement that
provides that as long as Tenant is not in default under the Lease, such future
lienholder, or future prime, master or ground lessor or any purchaser at
foreclosure or other sale will not be entitled to disturb Tenant's possession or
use of the Demised Premises.
21.2. Subject to Article 21. 1, at the option of any transferee of the
Landlord's interest in the property pursuant to a foreclosure or similar
proceeding under any mortgage, deed of trust or other lien upon the property,
whether now existing or hereafter created, Tenant shall attorn to and be bound
to any such transferee under the terms, covenants and conditions of this Lease
for the balance of the term hereof remaining and any extensions or renewals
hereof which may be affected in accordance with any option therefore in this
Lease, with the same force and effect as if the transferee was the Landlord, and
Tenant does hereby agree to attorn to such transferee, at the transferee's
option, the attornment to be effective and self operative without the execution
of any further instruments on the part of Tenant, immediately upon the
transferee succeeding to the interest of the Landlord, provided said transferee
provides written notice to the Tenant of its election to accept such attornment
within sixty (60) days of the subject transfer.
Tenant hereby agrees that said transferee shall not be (a) liable for
any act or admission of Landlord under the Lease prior to the subject transfer
or (b) subject to any offsets or defenses which Tenant might have against
Landlord arising from events or circumstances existing prior to the subject
transfer, or (c) bound by any rent or additional rent which Tenant might have
paid in advance for more than the month of the subject transfer, or (d) bound by
any amendment or modification of this Lease made after such foreclosing party
acquired its lien without the foreclosing party's prior written consent of such
amendment.
21.3. Tenant agrees to furnish from time to time, when requested by
Landlord, the holder of any deed of trust or mortgage or the Landlord under any
ground Lease covering all or any part of the property or any interest of
Landlord therein, an estoppel certificate signed by Tenant confirming and
containing such factual certifications and representations deemed appropriate by
Landlord. The holder of any such deed of trust or mortgage or the Landlord under
any such ground Lease and Tenant shall, within fifteen (15) days following
receipt of said proposed estoppel certificate from Landlord, return a
fully-executed copy of said certificate to Landlord. In the
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event Tenant fails to return a fully-executed copy of such certificate to
Landlord within the foregoing ten-day period, then Tenant shall be deemed to
have approved and confirmed all of the terms, certifications and representations
contained in such certificate.
ARTICLE XXII. NOTICES.
22.1. Wherever any notice is required or permitted hereunder, such
notice shall be in writing. Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered, whether actually received
or not when deposited in the United States mail, postage prepaid, certified or
registered mail, return receipt requested, addressed to the parties hereto at
the respective addresses set out in ARTICLE I, SECTIONS 1.1(b), 1.1(d) AND
1.1(f) above and as to notices to Landlord with a copy to the attention of the
General Counsel (re: Real Estate), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, and as to notices to Tenant to with a copy to ▇▇▇▇▇▇▇▇▇, Mallios,
Davis, Rider & ▇▇▇▇▇, LLP, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, or such other address as they may have hereafter specified by written
notice.
ARTICLE XXIII. BROKERS.
23.1. Landlord and Tenant represent and warrant to each other that,
except as set forth in this Lease, if at all, it has not employed a broker in
carrying on the negotiations relating to this Lease. Tenant further warrants and
covenants that is has not relied and will not rely upon any oral representation
about the property, other Tenants, occupancy, uses or related matters made by
any real estate agent, real estate broker, agent or employee of Landlord, or any
other party. Tenant shall indemnify and hold Landlord harmless, from and against
any cost, liability or expense (including attorney's fees and disbursements)
incurred as a result of the assertion(s) or claim(s) by any person, firm or
entity (other than Landlord's exclusive agent and any agent of Tenant whose name
appears in the following sentence) for brokerage or other commissions, finder's
fees or any of its employees, agents or representatives. Landlord acknowledges
that ▇▇▇▇▇▇ Partners, Inc. has acted as Landlord's exclusive representative and
Tenant acknowledges that other than CB Commercial Real Estate Group, Inc.,
Tenant has not authorized any other broker, agent or finder in connection with
this Lease. Landlord warrants that it has agreed to pay a leasing commission to
▇▇▇▇▇▇ Partners, Inc. and agrees to indemnify and hold Tenant harmless from any
claim therefor.
ARTICLE XXIV. APPROVAL AND CHANGES REQUIRED BY LENDER.
Intentionally Deleted.
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ARTICLE XXV. PARKING.
25.1. Tenant shall be allocated 50 unreserved spaces on a non-exclusive
basis in the Building's existing surface lot as designated on Exhibit G for use
by Tenant and its employees during the term of the Lease at no additional
charge. Tenant and its employees, shall not be entitled to use more than the
number of parking spaces allocated to Tenant at any one time. Landlord reserves
the right to designate reserved parking in said lot provided such designation
does not diminish Tenant's allocation. Landlord reserves the right to relocate
the parking lot.
ARTICLE XXVI. WAIVER OF TRIAL BY JURY AND RIGHT TO REDEEM.
26.1. Landlord and Tenant each agree to and they waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of said premises and/or any claim of injury or damage, and
statutory remedy. Tenant also hereby agrees that the provisions of SECTION
8-401(e) OF THE MARYLAND REAL PROPERTY CODE shall not apply to this Lease and
Tenant hereby waives its rights thereunder.
ARTICLE XXVII. FURNISHING OF FINANCIAL STATEMENTS.
27.1. Within ten (10) days of the execution of this Lease, Tenant shall
furnish Landlord financial statements outlining Tenant's current financial
condition if applicable, as of the last annual audit or the last regularly
prepared report including tax returns. Over the term of this Lease and any
extensions, within ten (10) days of Landlord's written request, Tenant shall
furnish financial statements outlining Tenant's current financial condition to
any prospective purchaser or lender of
ARTICLE XXVIII. OCCUPATIONAL AND ENVIRONMENTAL COMPLIANCE.
28.1. Tenant shall not in any manner use, maintain or allow its agents,
employees or invitees to use or maintain the Demised Premises, Building or Land
in violation of any law, ordinance, statute, regulation, rule or order
(collectively "Laws") of any governmental authority, including but not limited
to Laws governing zoning, health, safety (including fire safety), occupational
hazards, and pollution and environmental control. Tenant shall not use, maintain
or allow its agents, employees or invitees to use or maintain the Demised
Premises, Building or Land to treat, store, dispose of, transfer, release,
convey or recover hazardous materials nor shall Tenant otherwise, in any manner,
possess or allow its agents, employees or invitees to possess any hazardous,
materials on or about the Demised Premises,
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Building or Land; provided however, any hazardous material lawfully permitted
and generally recognized as necessary and appropriate for general office or
warehouse may be stored and used in the Demised Premises so long as (i) such
storage and use is in the ordinary course of Tenant's business permitted under
this Lease; (ii) such storage and use is performed in compliance with all
applicable laws and regulations and in compliance with the highest standards
prevailing in the industry for the storage and use of such materials; and (iii)
Tenant delivers prior written notice to Landlord of the identity of and
information regarding such materials as Landlord may require. Tenant shall
immediately notify Landlord of the presence or suspected presence of any
hazardous material on or about the property and shall deliver to Landlord any
notice received by Tenant relating thereto.
If Landlord deems it reasonably necessary, Landlord and its agents
shall have the right, but not the duty, to inspect the Demised Premises and
conduct tests thereon at any time to determine whether or the extent to which
there is hazardous materials on the Demised Premises. Landlord shall have the
right to immediately enter upon the Demised Premises to remedy any contamination
found thereon. In exercising its rights herein, Landlord shall use reasonable
efforts to minimize interference with Tenant's business but such entry shall not
constitute an eviction of Tenant, in whole or in part, and Landlord shall not be
liable for any interference, loss, or damage to Tenant's property or business
caused thereby. If any lender or governmental agency shall ever require testing
to ascertain whether there has been a release of hazardous materials, then the
reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand
as additional rent if such requirement arose in whole or in part because of
Tenant's use of the Demised Premises, Building or land associated therewith.
Tenant shall execute affidavits, representations and the like from time to time,
at Landlord's request, concerning Tenant's best knowledge and belief regarding
the presence of any hazardous materials on the property on the Demised Premises,
Building or land associated therewith or Tenant's intent to store or use
hazardous materials on the Demised Premises, Building or land associated
therewith. Tenant shall indemnify and hold harmless Landlord from any and all
claims, loss, liability, costs, expenses or damage, including attorneys' fees
and costs of remediation and compliance, incurred by Landlord in connection with
any breach by Tenant of its obligations under this section. The covenants and
obligations of Tenant hereunder shall survive the expiration or earlier
termination of this Lease.
28.2. For the purposes of this ARTICLE XXVIII, the term "hazardous
materials" shall mean (i) any and all hazardous waste, toxic chemicals,
materials or substances occurring in the air, water, soil or ground water at the
property by reason of which the Tenant or Landlord would be subject to
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an injunction action and/or any damages, penalties, clean up costs or other
liability under the provisions of the COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT 42 U.S.C. SS. 9601 ET SEQ, THE SUPERFUND
AMENDMENTS AND REAUTHORIZATION ACT OF 1986, 42 U.S.C. SS. 9601 (20D), THE
RESOURCE CONSERVATION AND RECOVERY ACT (THE SOLID WASTE DISPOSAL ACT), 42 U.S.C.
SS. 9601 ET SEQ, THE FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED BY THE
CLEAN WATER ACT oF 1977, 33 U.S.C. SS. 1251 ET SEQ, THE CLEAN AIR ACT OF 1966,
42 U.S.C. SS. 7401 ET SEQ, AND THE TOXIC SUBSTANCES CONTROL ACT, 15 U.S.C.
SS.2601, ET SEQ; (II) any "oil, petroleum products and their by-products" as
defined by thE MARYLAnD ENVIRONMENTAL CODE ANNOTATED SS. 4-411(a)(3); as amended
from time to time and regulations promulgated thereunder; (III) any "hazardous
substance" as defined by the MARYLAND ENVIRONMENTAL CODE ANNOTATED, TITLE 7,
SUBTITLE 2, as amended from time to time and regulations promulgated thereunder;
and (iv) any substance the presence of which is prohibited or controlled by any
other federal, state or local laws, regulations, statutes, or ordinances now in
a force or hereafter enacted relating to waste disposal or environmental
protection with respect to hazardous, toxic or other substances generated,
produced, leaked, released, spilled, stored or disposed of at or from the
property. Hazardous material shall also include any other substance which by law
requires special handling in its collection, storage, treatment or disposal, but
not including small quantities of materials present on the property in retail
containers, which would not be prohibited, regulated or controlled under
applicable environmental laws.
ARTICLE XXIX. SURRENDER OF DEMISED PREMISES.
29.1. By taking possession of the Demised Premises, Tenant shall be
deemed to have accepted the Demised Premises in good, clean and completed
condition and repair subject to any punch list items, and subject to all
applicable laws, codes and ordinances. On the expiration or early termination of
this Lease, Tenant shall surrender the Demised Premises to Landlord in its
condition as of the Commencement Date, normal wear and tear, fire and casualty
damage (to the extent such fire and casualty damage is covered by Landlord's
insurance or is not caused by Tenant or its employees, agents or visitors)
excepted. Tenant shall remove from the Demised Premises all of Tenant's personal
property, trade fixtures and any alterations required to be removed pursuant to
Article VIII. Tenant shall repair damage or perform any restoration work
required by the removal. If Tenant fails to remove any personal property, trade
fixtures or alterations after the end of the Lease Term, Landlord may remove the
property and store it at Tenant's expense. If the Demised Premises are not so
surrendered at the termination of this Lease, Tenant shall indemnify Landlord
against all loss or liability resulting from delay by Tenant in so surrendering
the Demised Premises, including,
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without limitation, any claims made by any succeeding tenant, losses to Landlord
due to lost opportunities to lease to succeeding tenants, and attorneys' fees
and costs.
ARTICLE XXX. MISCELLANEOUS.
30.1. Nothing herein contained shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or a joint venture between parties hereof,
it being understood and agreed that neither the method of computation of rental,
nor any other provisions contained herein, nor the acts of the parties hereto,
shall be deemed to create any relationship between the parties hereto other than
the relationship of Landlord and Tenant. Whenever herein the singular number is
used, the same shall include the plural, and words of gender shall include each
other gender.
30.2. The captions used herein are for convenience only and do not
limit or amplify the provisions hereof.
30.3. One or more waivers of any covenant, term or condition of this
Lease by either party shall not be construed as a waiver of a subsequent breach
of the same covenant, term or condition. The consent or approval by either party
shall not be construed as a waiver of a subsequent breach of the same covenant,
term or condition. The consent or approval by either party to or of any act by
the other party shall not be deemed to waive or render unnecessary consent to or
approval of any subsequent similar act.
30.4. Whenever a period of time is herein prescribed for action to be
taken by either party to this Lease, such party shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, government laws, regulations or restrictions or any
other cause of any kind whatsoever which is beyond the reasonable control of
such party; provided however, the provisions of this paragraph shall not operate
to (1) excuse Tenant from the prompt payment of Base Rent, Additional Rent or
any other monetary sums due under the Lease, nor (2) extend the term of this
Lease. At any time when there is outstanding a mortgage, deed of trust or
similar security instrument covering Landlord's interest in the Demised
Premises, Tenant may not exercise any remedies for default by Landlord hereunder
unless and until the holder of the indebtedness secured by such mortgage, deed
of trust or similar instrument shall have received written notice of such
default and a reasonable time for curing such default shall thereafter have
elapsed.
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30.5. This Lease contains the entire agreement between the parties, and
no agreement shall be effective to change, modify or terminate this Lease in
whole or in part unless such agreement is in writing and duly signed by the
party against whom enforcement of such change, modification or termination is
sought.
30.6. The laws of the State in which the Demised Premises is located
shall govern the interpretation, validity, performance and enforcement of this
Lease. If any provision of this Lease should be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this Lease shall not be affected thereby.
30.7. The terms, provisions and covenants contained in this Lease shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors in interest and legal representatives except as
otherwise herein expressly provided.
30.8. In order to induce Landlord to execute this Lease, Tenant agrees
that Landlord may, at its option, at or prior to its execution of the Lease
require Streamline, Inc. to guarantee the obligations of the Tenant hereunder.
30.9. Tenant shall not record this Lease or any memorandum or other
document referring to this Lease without the express written permission of
Landlord. Landlord, however, may record this Lease or any related document
without the consent or joinder of Tenant.
30.10. Tenant shall pay before delinquency all costs for work done or
caused to be done by Tenant in the Demised Premises which could result in any
lien or encumbrance in respect of such work and shall indemnify, defend and hold
harmless Landlord against any claim, loss, cost, demand and legal or other
expenses, whether in respect of any lien or otherwise, arising out of the supply
of material, services or labor for such work. Tenant shall immediately notify
Landlord of any such lien, claim of lien or other action of which it has or
reasonably should have knowledge and which affect the title to the Land or
building or any part thereof, and shall cause the same to be removed or bonded
off within fifteen (15) days (or such additional time as Landlord may consent to
in writing) after its filing, creation or assertion, whichever shall first
occur, failing which Landlord may declare Tenant in default hereunder and take
such action as Landlord deems necessary to remove the same and the entire cost
thereof shall be immediately due and payable by Tenant to Landlord as additional
rent hereunder.
30.11. The submission of this Lease for examination does not constitute
a reservation of or an option for the Demised Premises nor does it
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constitute an offer to lease the Demised Premises until signed by Landlord and
this Lease becomes effective as a Lease only upon execution and delivery thereof
by both Landlord and Tenant.
30.12. Time shall be of the essence for this Lease.
30.13. If any term, covenant or condition of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
30.14. It is agreed that, for the purpose of any suit brought or based
on this Lease, this Lease shall be construed to be a divisible contract, to the
end that successive actions may be maintained thereon as successive periodic
sums shall mature or be due hereunder, and it is further agreed that failure to
include in any suit or action any sum or sums then matured or due shall not be a
bar to the maintenance of any suit or action for the recovery of said sum or
sums so omitted; and Tenant agrees that it will not, in any suit or suits
brought or arising under this Lease for a matured sum for which judgment has not
previously been obtained or entered, plead, rely on or interpose the defenses of
RES JUDICATA, former recovery, extinguishment, merger, election or remedies or
other similar defense as a defense to said suit or suits.
ARTICLE XXXI. STATUS AS SUBLEASE.
31.1. It is understood that this Lease is a sublease of a portion of
the Project leased to Landlord pursuant to a Lease dated August 30, 1995,
between the Gaithersburg Realty Trust, as Landlord, and Landlord, as Tenant (the
"Master Lease"). This Lease is fully subject and subordinate to all terms and
conditions of the Master Lease, and to the rights of the Gaithersburg Realty
Trust thereunder. In no event shall the Lease Term hereunder extend beyond the
Expiration Date or earlier termination of the Master Lease (unless the Property
is conveyed to Landlord). After termination or expiration of the Master Lease
(unless the Property is conveyed to Landlord), Tenant shall promptly surrender
all its interest in the Property. (The terms "Expiration Date" and "Property"
shall have the respective meanings given to them in the Master Lease).
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ARTICLE XXXII. ATTACHMENTS.
The Following Attachments are attached hereto and made a part hereof:
ADDENDUM
EXHIBIT A - DEMISING PLAN
EXHIBIT A-1 - 1997 ESTIMATED OPERATING EXPENSES AND
R/E TAXES
EXHIBIT B - DESCRIPTION OF LANDLORD'S WORK
EXHIBIT B-1 - DESCRIPTION OF TENANT'S WORK
EXHIBIT B-1(I) - PRELIMINARY OUTLINE OF CERTAIN TENANT
IMPROVEMENTS
EXHIBIT C - SPACE PLAN
EXHIBIT D - RULES AND REGULATIONS
EXHIBIT E - INTENTIONALLY DELETED
EXHIBIT F - TENANT'S EXTERIOR SIGNAGE
EXHIBIT G - BUILDING SURFACE LOT
EXHIBIT H - SITE PLAN RELATING TO DRIVEWAY AROUND
BUILDING
EXHIBIT I - SITE PLAN RELATING TO LOADING DOCKS
EXHIBIT J - RESTRICTED BUSINESSES CONTIGUOUS TO
TENANT'S DEMISED PREMISES AND BUSINESS
TENANT SHALL NOT CONDUCT.
SIGNATURES ON NEXT PAGE
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IN WITNESS HEREOF, the parties hereunto signed their names, as their
free act and deed, on the day and year first above written do hereby acknowledge
and accept this Lease agreement.
WITNESS/ATTEST: Landlord:
MANOR CARE, INC.
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ (Seal)
----------------------------------- --------------------------
Assistant Secretary Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Title: SENIOR VICE PRESIDENT
------------------------
Date: 8/15/97
------------------------
WITNESS/ATTEST: Tenant:
STREAMLINE, MID-ATLANTIC, INC.
/S/ ▇. ▇▇▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Seal)
----------------------------------- --------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Title: PRESIDENT
------------------------
Date: 6/30/97
------------------------
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ADDENDUM
THIS ADDENDUM, made and entered into this 30th day of June, 1997, by
and between Manor Care, Inc., a Delaware corporation ("Landlord") and
Streamline, Mid-Atlantic Inc., a Delaware corporation ("Tenant").
WHEREAS, Landlord and Tenant wish to make certain modifications to the
Lease agreement dated June 30, 1997.
NOW, THEREFORE, in consideration of the terms, covenants and conditions
of the Lease and the mutual obligations of the parties hereto, it is agreed as
follows:
1. RIGHT OF FIRST OFFERING
In the event that Landlord leases any space contiguous to the Demised
Premises containing at least 30,000 square feet after the Commencement Date of
the Lease to another tenant and then such space becomes or is reasonably
anticipated by Landlord to become vacant during the Term, Landlord shall notify
Tenant in writing of the availability of such space. Provided that an Event of
Default does not exist under this Lease, Tenant shall have the right of first
offer to lease such space in its entirety ("Expansion Space"). Tenant shall have
a period of ten (10) days to exercise its right of first offer by giving written
notice of its acceptance of such offer to Landlord within said ten (10) day
period. Tenant's failure to exercise its right of first offer within said ten
(10) day period as to the Expansion Space shall extinguish Tenant's right to of
first offer with regard to such space and Landlord shall have the right to lease
such space to any party or parties and upon any terms and conditions which
Landlord desires, in its sole discretion.
If Tenant exercises its Right of First Offering, Tenant shall lease the
Expansion Space in its "as is" condition (with Landlord having no obligation to
do any work to the Expansion Space), for the remaining balance of the Term of
the Lease for the Demised Premises and Tenant shall commence paying rent for the
Expansion Space the date Landlord tenders possession. The rent for the Expansion
Space shall be computed at an amount equal to the then prevailing fair market
rent for the Expansion Space, as a "Net Lease" hereinafter referred to as "Fair
Market Rent":
(a) Landlord shall deliver to Tenant notice of its proposed
Fair Market Rent for the Expansion Space within twenty (20) days after
Landlord's receipt of Tenant's notice of its intent to exercise its
right of first offering.
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(b) In the event Tenant does not agree as to the proposed Fair
Market Rent, Tenant shall engage a broker, who is a licensed real
estate broker in the State of Maryland with a minimum of ten (10) years
experience in commercial warehouse leasing matters in the Metropolitan
Washington, D.C. area and specializing in Suburban Maryland,
hereinafter referred to as "Real Estate Broker", for the purpose of
determining Fair Market Rent for the Expansion Space. Tenant shall
deliver to Landlord within twenty (20) days after receipt of Landlord's
notice, a copy of its Real Estate Broker's determination of the Fair
Market Rent. In the event Tenant does not timely deliver a copy as
aforesaid, the Fair Market Rent proposed by Landlord shall be the Fair
Market Rent for the first year of the Renewal Term.
(c) If Landlord disputes the determination of Fair Market Rent
by Tenant's Real Estate Broker, then Landlord shall engage a Real
Estate Broker pursuant to the selection provisions contained in
SUBPARAGRAPH (B) and Landlord shall deliver to Tenant within twenty
(20) days after receipt of Tenant's notice of such Fair Market Rent, a
copy of its Real Estate Broker's determination of the Fair Market Rent
for the Expansion Space. In the event Landlord does not timely deliver
a copy as aforesaid, then the Fair Market Rent for the first Lease year
of the Renewal Term proposed by Tenant's Real Estate Broker shall be
the Fair Market Rent.
(d) In the event Tenant disputes Landlord's Real Estate
Broker's determination of the Fair Market Rent, then the two (2) Real
Estate Brokers shall select a third Real Estate Broker within twenty
(20) days after Landlord's notice to Tenant as set forth in
subparagraph (c) above and shall notify Landlord and Tenant of such
selection. In the event that said two (2) Real Estate Brokers cannot
agree on the selection of a third Real Estate Broker within said time
period, then the President of the Washington Area Commercial Brokers
Council, Inc. shall select a third Real Estate Broker within forty (40)
days after Landlord's notice to Tenant as set forth in subparagraph (c)
above. Each party shall bear the cost of its appointed Real Estate
Broker and shall share equally the cost of the third Real Estate
Broker.
(e) The third Real Estate Broker shall determine the Fair
Market Rent for the Expansion Space and shall deliver to both Landlord
and Tenant within ten (10) days after being selected a copy of said
third Real Estate Broker's Fair Market Rent. The Fair Market Rent for
the Renewal Term shall be the average of the two closest Real Estate
Brokers' determinations. Landlord shall deliver to Tenant a
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final notice setting forth the Fair Market Rent as established herein
no later than ten (10) days after receiving said third Real Estate
Broker's Fair Market Rent.
2. RENEWAL OPTION:
Provided that (i) this Lease is in full force and effect and (ii)
Tenant shall not then be in default, Tenant shall have the right, at Tenant's
sole option, to extend the Lease for one (1) additional period of five (5) years
("Renewal Term"). All terms, covenants, conditions of this Lease, shall remain
in full force and effect except as expressly modified herein. The minimum annual
rent payable during Renewal Term shall be the amount determined pursuant to
PARAGRAPH (1) as defined below, provided however, that in no event shall the
minimum annual rent be less than the minimum annual rent being paid for the last
year of the initial Lease term. Tenant must give written notice of its intent to
exercise said option to Landlord not less than one hundred eighty (180) days
prior to the expiration of the initial Lease term.
1. During the first Lease year of the Renewal Term, the minimum annual
rent shall be computed at an amount equal to ninety-five percent (95%) of the
then prevailing fair market rent for the Demised Premises, as a "Net Lease"
hereinafter referred to as "Fair Market Rent":
(a) Landlord shall deliver to Tenant notice of its proposed
Fair Market Rent for the Demised Premises during the first Lease year
of the Renewal Term within twenty (20) days after Landlord's receipt of
Tenant's notice of its intent to exercise its renewal option.
(b) In the event Tenant does not agree as to the proposed Fair
Market Rent, Tenant shall engage a broker, who is a licensed real
estate broker in the State of Maryland with a minimum of ten (10) years
experience in commercial warehouse leasing matters in the Metropolitan
Washington, D.C. area and specializing in Suburban Maryland,
hereinafter referred to as "Real Estate Broker", for the purpose of
determining Fair Market. Rent for the Demised Premises. Tenant shall
deliver to Landlord within twenty (20) days after receipt of Landlord's
notice, a copy of its Real Estate Broker's determination of the Fair
Market Rent. In the event Tenant does not timely deliver a copy as
aforesaid, the Fair Market Rent proposed by Landlord shall be the Fair
Market Rent for the first year of the Renewal Term.
(c) If Landlord disputes the determination of Fair Market Rent
by Tenant's Real Estate Broker, then Landlord shall engage a Real
Estate Broker pursuant to the selection provisions contained in
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SUBPARAGRAPH (b) and Landlord shall deliver to Tenant within twenty
(20) days after receipt of Tenant's notice of such Fair Market Rent, a
copy of its Real Estate Broker's determination of the Fair Market Rent
for the Demised Premises. In the event Landlord does not timely deliver
a copy as aforesaid, then the Fair Market Rent for the first Lease year
of the Renewal Term proposed by Tenant's Real Estate Broker shall be
the Fair Market Rent.
(d) In the event Tenant disputes Landlord's Real Estate
Broker's determination of the Fair Market Rent, then the two (2) Real
Estate Brokers shall select a third Real Estate Broker within twenty
(20) days after Landlord's notice to Tenant as set forth in
SUBPARAGRAPH (c) above and shall notify Landlord and Tenant of such
selection. In the event that said two (2) Real Estate Brokers cannot
agree on the selection of a third Real Estate Broker within said time
period, then the President of the Washington Area Commercial Brokers
Council, Inc, shall select a third Real Estate Broker no later than
ninety (90) days prior to the expiration of the then current term. Each
party shall bear the cost of its appointed Real Estate Broker and shall
share equally the cost of the third Real Estate Broker.
(e) The third Real Estate Broker shall determine the Fair
Market Rent for the Demised Premises and shall deliver to both Landlord
and Tenant within then (10) days after being selected a copy of said
third Real Estate Broker's Fair Market Rent. The Fair Market Rent for
the Renewal Term shall be the average of the two closest Real Estate
Brokers' determinations. Landlord shall deliver to Tenant a final
notice setting forth the Fair Market Rent as established herein no
later than two (2) months prior to the Renewal Term.
2. At the commencement of (each anniversary of the) Renewal Term, the
minimum annual rent shall be adjusted in the manner described in ARTICLE 3.1 of
this Lease. There shall be no rent abatement or buildout allowance during the
renewal term.
3. Should Tenant either fail to give notice of its intent to renew or
elect not to exercise its option to renew, Landlord shall be relieved of any
liability created by the grant of this renewal option.
3. LANDLORD'S REPRESENTATION AND WARRANTY.
To the actual knowledge of Landlord's General Counsel as of June 27, 1997, the
Building or the Land is not currently in administrative or judicial litigation
regarding any environmental condition. To the actual knowledge of
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Landlord's General Counsel as of June 27, 1997, Landlord has not received any
notice of violation from any governmental entity relating to the Americans with
Disabilities Act.
4. SUBDIVISION OF BUILDING AND LAND.
Tenant acknowledges that Landlord has disclosed to Tenant that the Building and
Land are located on the property known as Parcel lettered "B" in the subdivision
known as "QUINCE ORCHARD, NATIONAL GEOGRAPHIC SOCIETY PROPERTY" as per plat
thereof recorded among the Land Records of ▇▇▇▇▇▇▇▇▇▇ County, Maryland in Plat
Book 81 at Plat 8364 ("Property") and that Landlord may subdivide the Property.
In the event of such a subdivision, the Building and Land may have its own tax
parcel identification number, separate road access, separate operating expenses
from the office building located on the Property and the land associated with
the Building may change. As part of the subdivision process, the land associated
with the Building may contain approximately twenty (20) acres. Tenant agrees to
support reasonably such a subdivision and any further subdivisions. Such support
shall include, but not be limited to, promptly executing any applications, maps
and development entitlements Landlord deems necessary for the subdivision,
executing any easements needed for the subdivision, and participating in any
required traffic mitigation programs, provided however, Landlord agrees and
represents that the subdivision shall not unreasonably interfere with Tenant's
business and Landlord shall not charge to the Tenant any filing fees, surveyor's
fees, legal fees or other charges directly related to the subdivision.
5. TRUCKS.
In connection with the operation of Tenant's business, Tenant indicates that it
needs the right to have 18 wheel vehicles or comparable large vehicles
("Tenant's Related Trucks") access the Demised Premises from ▇▇▇▇▇ ▇▇
(▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇). ▇▇▇▇▇▇▇▇ is concerned about Tenant's Related Trucks because
of the potential for disruption to Landlord's corporate office and the harm to
the driveways associated with Landlord's real property. Accordingly, during any
weekly period Monday through Sunday, Tenant shall not permit more than an
average of three Related Trucks per day to access Landlord's real property. In
addition, because what is now the western access point from Route 28 (Darnestown
Road) is not built to accommodate vehicles like Tenant's Related Trucks, Tenant
shall use reasonable effort to ensure that all of Tenant's Related Trucks enter
and exit from what is now called the eastern access point from Route 28
(Darnestown Road).
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6. LEASE CONTINGENCY
This Lease is contingent on Landlord securing the necessary
governmental approvals for the construction of the proposed driveway adjacent to
a portion of the Building and additional loading docks ("Loading Docks") at the
Building. Attached hereto as Exhibits H and I respectively are the agreed upon
site plans for the driveway and the Loading Docks. Landlord agrees to make a
reasonable effort to secure such approvals at Landlord's expense. Upon securing
such approvals Landlord, at its expense shall diligently perform the site work
for 15 typical 25 foot straight truck type loading docks and 3 typical 18-wheel
vehicle loading docks (it being the intent of the parties that the Tenant at its
own expense shall construct the loading docks) and the driveway adjacent to the
Building. If Landlord has not secured such approvals by November 1, 1997, then
either party may terminate the Lease, by giving the other party written notice
of termination by November 11, 1997. If Landlord has secured the approvals by
November 1, 1997, then it shall have until March 31, 1998 to perform the site
work for the loading docks and construct the driveways; provided, that as of
November 1, 1997, Landlord makes available to Tenant a temporary loading dock
(until Tenant's loading docks are completed which completion Tenant will pursue
with best efforts) to an alternative loading dock. Such availability shall
either be in the form of temporary use of the existing loading dock (if Landlord
has not agreed to allow another tenant to use it) or giving the Tenant the right
at Tenant's expense to create a temporary loading dock (if permitted under all
applicable laws, rules and regulations) with Landlord performing the site work
for such temporary loading dock (if permitted under all applicable laws, rules
and regulations). If the existing loading dock is not available to Tenant by
November 1, 1997 or Landlord has not substantially completed the site work for
the temporary loading dock by November 1, 1997, or Tenant cannot secure any
necessary governmental approvals by November 1, 1997 to build a temporary
loading despite reasonable effort, or Landlord does not substantially finish the
driveway or site work for the loading docks by March 31, 1998, then Tenant may
terminate the Lease by giving Landlord written notice within ten days of the
applicable due date.
In addition, in the event Landlord has not secured the necessary
governmental approvals within sixty (60) days after mutual execution of the
Lease, Tenant shall have the right to terminate the Lease by giving Landlord
written notice of termination within ten days of the applicable due date;
provided however, Landlord may void Tenant's notice of termination upon written
notice given within ten (10) days of receiving Tenant's notice of termination
("Landlord's Nullification Notice"). As part of Landlord's Nullification Notice,
Landlord shall agree to pay any reasonable buildout expenses Tenant incurs from
the date of Landlord's Nullification Notice until
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the date Landlord or Tenant terminates the Lease pursuant to this section 6;
provided however, Landlord's agreement is conditioned upon preapproving such
expenses and Tenant agrees to give Landlord a detailed itemization of such
expenses in a form reasonably acceptable to Landlord. Under no circumstances
shall Landlord have any responsibility to pay any portion of the expenses that
arises after Landlord or Tenant terminates the Lease.
Landlord intends initially to attempt to secure the necessary approvals
for the loading docks and the driveway at the administrative level and to
include in such submission permission for a new parking lot and the aforesaid
driveway and loading docks. To the extent that Landlord is given approval at the
administrative level for just the driveway and loading dock, Landlord agrees to
accept such approval and pursue permission for the parking lot in a separate
action. If the Lease is terminated because of the failure of the above Lease
contingency, Landlord shall return Tenant's Security Deposit.
7. LEASE RESTRICTION
Landlord agrees that absent Tenant's consent, Landlord will not lease
space that is contiguous to the Demised Premises to any tenant that will use a
majority of their space for any of the businesses outlined in Exhibit J. To the
extent that any contiguous tenant so uses their space (notwithstanding the lease
restriction), Landlord agrees to use reasonable effort to enforce such lease
restriction. In addition, Landlord agrees that it will use reasonable effort to
enforce against any tenant of the Building the Rules and Regulations outlined in
Exhibit D pertaining to environmental matters.
IN WITNESS HEREOF, the parties hereunto signed their names, as their
free act and deed, on the day and year first above. written do hereby
acknowledge and accept this Lease agreement.
WITNESS/ATTEST: Landlord:
Manor Care, Inc.
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ (Seal)
------------------------- ------------------
Assistant Secretary ▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
Date: 8/15/97
--------
WITNESS/ATTEST: Tenant:
Streamline, Mid-Atlantic, Inc.
/S/ ▇. ▇▇▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Seal)
--------------------- ---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Title: PRESIDENT
-------------------
Date: 6/30/97
-------------------
EXPANSION ADDENDUM
THIS EXPANSION ADDENDUM ("Expansion Addendum"), made and entered into as of the
dates below written and dated for reference purposes as ▇▇▇▇▇ 24, 1999, by and
among Manor Care, Inc. ("Landlord"), Streamline Mid-Atlantic, Inc., a Delaware
corporation ("Tenant" and REII - Gaithersburg, Maryland, L.L.C., a Delaware
limited liability company ("REII - Gaithersburg") for the building known as
Lakelands Technology Centre, 11531-11539 Darnestown Road, Gaithersburg, Maryland
("Building").
WHEREAS, Landlord and Tenant wish to make certain modifications to that certain
lease agreement dated June 30, 1997 and that certain rider to lease dated August
18, 1997 by and between Landlord and Tenant (referred to collectively in the
singular as "Lease"); and
WHEREAS, REII-Gaithersburg wishes to join in the execution of this Expansion
Addendum to evidence its consent thereto as the contract purchaser of the
Building and Property (as hereinafter defined).
NOW, THEREFORE, in consideration of the terms, covenants and conditions of the
Lease and the mutual obligations of the parties hereto, it is agreed as follows:
1. Landlord's Closing On The Purchase Of The Building: Tenant acknowledges
that it has been advised that Landlord and REII - Gaithersburg have
entered into a Purchase Contract, as amended, (the "Contract") for the
purchase and sale of certain real property and improvements thereon,
including the Building, located in Gaithersburg, Maryland (hereinafter
collectively referred to as the "Property"). On the occurrence of the
closing of the sale of the Property contemplated by the Contract, REII -
Gaithersburg shall succeed to the interests of and become the Landlord
under the Lease and this Expansion Addendum.
2. Expansion Space: The size of the premises to be leased by Tenant shall be
increased as indicated on the attached Exhibit A, Demising Plan
("Expansion Space"), attached hereto and made a part hereof. The Expansion
Space and the Demised Premises as defined in Article I, Paragraph (h) of
the Lease are collectively referred to as the "New Demised Premises." For
all purposes under the Lease and this Expansion Addendum, the parties
agree as follows: (I) the size of the Expansion Space is 37,100 rentable
square feet, (ii) the size of the Demised Premises as described in the
Lease is 56,400 rentable square feet and (iii) the size of the New Demised
Premises is 93,500 rentable square feet.
3. Tenant's Proportionate Share: Tenant's Proportionate Share of the Building
for the Expansion Space is 18.19% based upon a 204,000 square foot
Building.
4. Lease Commencement Date: The Lease Commencement Date for the Expansion
Space ("Expansion Commencement Date") shall be the date this Expansion
Addendum has been fully executed by all parties.
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5. Rent Commencement Date: The Rent Commencement Date for the Expansion Space
shall be the earlier of 120 days from the Expansion Commencement Date or
14 days following the occupancy of the Expansion Space. Following the Rent
Commencement Date, Landlord shall provide written notice to Tenant of the
date that is deemed the Rent Commencement Date and Tenant shall
counter-initial said written notice.
6. Expansion Space Annual Base Rent: The initial Annual Base Rent for the
Expansion Space shall be $259,700.00, which rent shall be in addition to
the Annual Base Rent due under Article I., Paragraph (m) of the Lease.
7. Expansion Space Base Rent Schedule: The Annual Base Rent schedule for the
Expansion Space shall be as follows:
Year Annual Payment Monthly Payment
1 $259,700.00 $21,641.67
2 $267,491.00 $22,290.92
3 $275,515.73 $22,959.64
4 $283,781.20 $23,648.43
5 $292,294.64 $24,357.89
6 $301,063.48 $25,088.62
7 $310,095.38 $25,841.28
8 $319,398.24 $26,616.52
9 $328,980.19 $27,415.02
10 $338,849.60 $28,237.47
8. Lease Term: The Lease Term for the Expansion Space shall be 10 years from
the Rent Commencement Date.
9. Replacement of Certain Exhibits: Exhibit B-2 (attached and labeled "New
Preliminary Outline of Certain Tenant Improvements") will replace Exhibit
B-1i of the Lease and Exhibit C-1 (labeled "New Revised Space Plan") will
replace Exhibit C of the Lease.
10. Security Deposits: Tenant shall deposit with the Landlord the first
month's base rent ("Rent Deposit") of $21,641.67 to be applied to the
first month's Expansion Space base rent. Tenant shall increase the cash
portion of the Security Deposit as provided in Article I., Paragraph (p)
of the Lease by $21,641.67 ("Additional Deposit") to a total of
$52,191.67. The Rent Deposit and the Additional Deposit shall both be due
within 10 days of the date of execution of this Expansion Addendum.
11. Letter of Credit: Not later than April 30, 1999, Tenant shall increase the
Letter of Credit as provided in Article IV, Paragraph 4.1 of the Lease by
an additional $34,000.00 to $200,000.00. The last sentence of the second
paragraph of Article IV, Paragraph 4.1 (which commences with the word
"Notwithstanding") shall be deleted and in its place the following shall
be substituted: "Notwithstanding anything to the contrary herein
contained, if Tenant shall not then be in default under the Lease or any
other lease or agreement by and between Landlord and Tenant and provided
further that Landlord has not drawn upon the Letter of
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Credit, then upon 'substantial completion' of Tenant's Work described in
Exhibit B-2 ("New Preliminary Outline of Certain Tenant Improvements) and
Exhibit C-I, New Revised Space Plan together with proof reasonably
satisfactory to Landlord that Tenant has incurred building improvement
costs and paid in full no less than $1,000,000 (exclusive of any leased
equipment) for Tenant's Work, the Letter of Credit shall be returned to
Tenant. In determining 'substantial completion' for purposes hereof,
Landlord shall act with commercial reasonableness and neither unreasonably
withhold, delay or condition the return of the Letter of Credit."
12. Racking: Tenant shall have the right to remove all or a portion of the
racking ("Racking") within the Expansion Space and receive any salvage
value therefrom. Subject to Paragraph 18 hereof, all costs for removing
the Racking shall be divided equally between Landlord and Tenant, such
costs shall be calculated after deducting any payments or compensation
received by Tenant for the salvage value. The Racking removal shall be
competitively bid by Tenant and the contract terms and price approved by
Landlord and REII-Gaithersburg prior to the removal of any Racking.
Landlord shall reimburse Tenant for 50% of the approved price for the
removal of the Racking, the later of 30 days after Landlord and REII -
Gaithersburg close on the purchase of the Property or 30 days after
receipt by Landlord of reasonable evidence that the contractor has been
paid by Tenant for such removal.
13. Tenant Improvements: Tenant has agreed to lease the Expansion Space in "AS
IS" condition. Tenant's improvements depicted on Exhibit C-I shall be
performed by Tenant and/or its contractors, subject to the approvals of
Landlord and REII-Gaithersburg, such approvals, not to be unreasonably
withheld, delayed, conditioned or denied. Tenant shall have the right to
construct a mezzanine within the New Demised Premises so long as the size
of the mezzanine does not exceed Tenant's Proportionate Share of the total
allocation of mezzanine available to the Building as dictated by the
appropriate regulatory authorities. Subject to Paragraph 18 hereof,
Landlord shall reimburse Tenant for 50% of the cost of the demising wall
depicted on Exhibit C-I, which reimbursement shall be made the later of 30
days after Landlord and REII-Gaithersburg close on the purchase of the
Property or 30 days after substantial completion thereof and receipt of
evidence that payment has been made to Tenant's contractor. The demising
wall shall be constructed in a good and workmanlike manner at a cost
approved by Landlord and REII-Gaithersburg, comply with all applicable
law, regulations, and building codes and be competitively bid by Tenant to
at least three appropriately licensed contractors reasonably acceptable to
Landlord and REII-Gaithersburg, such approvals by Landlord and
REII-Gaithersburg not to be unreasonably withheld, delayed, conditioned or
denied. Tenant shall not be entitled to any additional parking spaces as a
result of the construction of the mezzanine.
14. Electric Power: Upon a subdivision of the Property resulting in the
creation of a separate tax parcel for Lakelands Technology Center,
Landlord shall promptly submit and diligently pursue with commercial
reasonableness an application with PEPCO to run new direct feed electrical
power to the Building. Following said subdivision and the installation by
PEPCO of new electrical service to the Building, Tenant shall be given the
right to utilize up to an additional 1300 AMPS/48O volts of power from the
new power source to the Building, resulting in a total cumulative
electrical power allocation under the Lease and this Expansion
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Addendum of 2500 AMPS/480 volts. The cost of bringing such new service to
the Building shall not be at Tenant's expense. Landlord, at its expense,
may require the New Demised Premises to be submetered. In the event that
the Property is subdivided and the Building receives separate power,
Tenant shall be responsible for the cost of bringing power to the New
Demised Premises from the supply location within the Building. All work
performed by or on behalf of Tenant to the electrical systems within the
Building shall be subject to the approvals of Landlord and
REII-Gaithersburg, such approvals, not to be unreasonably withheld,
delayed, conditioned or denied. Notwithstanding anything herein or
elsewhere to the contrary, in the event that PEPCO is unable to provide
the additional power source to the Building by the Rent Commencement Date
set forth in Section 5 of this Expansion Addendum and the existing power
at the Building is insufficient for Tenant to conduct its business, then
Tenant may, at its option, obtain in a commercially reasonable manner
alternate power supply from a standby generator or other similar
equipment. In such event, all out-of-pocket costs, fees and expenses of
Tenant in obtaining such alternate power source may be set-off and
deducted from any monetary obligation otherwise due and payable to
Landlord under this Expansion Addendum (whether the same may be Monthly
Rental Installments, Operating Expenses or any other payment whatsoever),
plus 7% simple interest accruing from the date Tenant shall have advanced
said payments.
15. Trucks and Trash Dumpsters: Landlord agrees that Tenant may increase from
3 per day to 5 per day, Tenant's right to be serviced by eighteen wheel
trucks or comparable large vehicles. Tenant shall locate all of its truck
parking (before and after hours) and trash dumpsters along the north side
of the Building, namely, that area where Tenant will be installing loading
docks as indicated on the attached Exhibit A or inside the covered
trucking station contained within the Expansion Space. In the event Tenant
requires additional parking for its trucks, Landlord shall make reasonable
efforts to accommodate Tenant so long as such accommodations do not incur
an additional expense to the Landlord or material inconvenience to other
tenants within the Building. Tenant shall not at any time obstruct
vehicular access to any existing or future parking areas at the Building.
16. Parking Expansion: Upon completion of the Parking Expansion, as
hereinafter defined, Tenant's allocable share of parking spaces shall be
increased to 105 spaces, none of which shall reduce the "Truck Parking
Area" to be denoted as defined by the parties on the Parking Expansion
Exhibit. Notwithstanding the terms of Article XXV of the Lease, Landlord,
at its expense, shall expand the parking area as hereinafter provided as
soon as practicable following the closing on the purchase of the Property
by REII-Gaithersburg, but in no event later than October 1, 1999 ("Parking
Expansion"). The Landlord anticipates the Parking Expansion shall be
constructed substantially in accordance with the March 6, 1998 Schematic
Site Plan--Phase III prepared by Macris, Hendricks, and ▇▇▇▇▇▇▇▇, P.A.,
attached as the "Parking Expansion Exhibit" hereto. In the event the City
of Gaithersburg, Maryland, shall condition issuance of a certificate of
use and occupancy for the New Demised Premises (or any part thereof) upon
completion of the Parking Expansion, Landlord shall seek and pursue with
commercially-reasonable diligence and in good faith upon such terms,
conditions and provisions as may be satisfactory to both Landlord and
Tenant, an amendment to existing or pending site plans, the waiver of the
parking requirements by the City of Gaithersburg, otherwise required,
until completion of the Parking Expansion.
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17. Other Lease Provisions Unaffected: All other terms and conditions
contained within the Lease shall remain in full force and effect except as
otherwise modified by this Expansion Addendum. Capitalized terms not
otherwise defined in this Expansion Agreement shall have the definitions
given to such terms in the Lease. In the event the New Demised Premises
decrease in size due to the expiration of the Lease with respect to the
original Demised Premises, all terms and conditions of the Lease shall
continue to remain in full force and effect with respect to the Expansion
Space with the appropriate sections in the Lease prorated to account for
the reduction of the size.
18. Failure of Closing on Purchase of the Property by REII - Gaithersburg:
Landlord and Tenant have agreed the obligations of Landlord under
Paragraph 12 (Racking), Paragraph 13 (Tenant Improvements), Paragraph 16
(Parking Expansion) and the approval and consent rights of
REII-Gaithersburg set forth elsewhere in this Expansion Addendum have been
specifically negotiated by Landlord anticipating that REII - Gaithersburg
will close on the purchase of the Property. Therefore, should
REII-Gaithersburg fail to so close and notwithstanding any other provision
herein or in the Lease (regarding setoffs and deductions) to the contrary,
all approval and consent rights of REII-Gaithersburg shall terminate and
the obligations of Landlord pursuant to Paragraphs 12, 13 and 16 shall be
modified as follows:
A. The obligations of Landlord pursuant to Paragraphs 12 and 13 to
timely reimburse Tenant shall be excused only if Landlord has and
continues to diligently and actively market the sale of the
Property, and, in consideration therefor, Tenant may at any time
following October 1, 1999, setoff and deduct any monetary obligation
otherwise due and payable to Landlord under this Expansion Addendum
(whether the same may be Monthly Rental Installments, Operating
Expenses or any other payment whatsoever) the amount that Landlord
would otherwise be obligated to reimburse Tenant, plus 7% simple
interest accruing from the date Tenant shall have advanced said
payments.
B. The obligations of Landlord pursuant to Paragraph 16 to design,
develop and construct the Parking Expansion area shall be excused
until April 1, 2000 (time being of the essence) only if Landlord has
and continues to diligently and actively market the sale of the
Property, whereupon from and after said date, Tenant shall be
permitted to engage in the development and construction of the
Parking Expansion, subject to Landlord's approval, said approval not
to be unreasonably withheld, delayed, conditioned or denied.
Reimbursement shall be due to Tenant for all its costs, fees and
expenses in exercise of its rights under this Paragraph within 30
days of completion of the Parking Expansion area and submission of
evidence that payment has been made therefor and provided that lien
waivers are produced to Landlord. Notwithstanding the foregoing,
while Tenant shall have the right to undertake such development and
construction, it shall be under no obligation to do so. In the event
Landlord shall fail to timely reimburse Tenant, Tenant's sole and
exclusive remedy shall be to setoff and deduct any monetary
obligation otherwise due and payable to Landlord under this
Expansion Addendum (whether the same may be Monthly Rental
Installments, Operating Expenses or any other payment whatsoever)
the amount that Landlord would otherwise
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be obligated to reimburse Tenant, plus 7% simple interest on any
outstanding unreimbursed amount (after taking into account all
set-offs) accruing from the date that Landlord was obligated to
reimburse Tenant.
19. Brokers Fees. Each party hereto hereby represents and warrants to the
other parties that except as expressly provided for below, it has not
engaged the services of any agent, broker or other similar party in
connection with this transaction. Each party hereby agrees to indemnify
and hold the other parties harmless from the claims of any agent, broker
or other similar party claiming by, through or under the indemnifying
party. REII-Gaithersburg hereby acknowledges ▇▇▇▇▇▇ Partners, Inc. as the
leasing agent and CB Commercial Realty as the co-leasing agent with
respect to this Expansion Addendum and agrees to pay such leasing and
co-leasing agents such commissions as may be due in accordance with a
separate agreement between REII-Gaithersburg and ▇▇▇▇▇▇ Partners, Inc.,
provided however, that, in the event that the closing of the sale of the
Property as contemplated by the Contract does not occur, then the
obligation to pay any leasing commissions in connection with this
Expansion Addendum shall be assumed by the future purchaser of the
Property and REII-Gaithersburg and Landlord shall be relieved of any and
all liability therefor.
20. Execution of Guaranty by Streamline, Inc.: By its signature below,
Streamline, Inc., the parent entity of the Tenant, agrees to execute,
contemporaneously with the execution of this Expansion Addendum, a lease
guaranty of all of Tenant's obligations under the Lease (as amended) and
this Expansion Addendum, on a form of lease guaranty attached hereto as
Exhibit A.
IN WITNESS HEREOF, the parties hereunto signed their names, as their free act
and deed, on the day and year below written and do hereby acknowledge and accept
this Lease agreement.
Landlord: Manor Care, Inc., a Delaware
corporation
By: /s/ ▇▇▇▇ ▇. [ILLEGIBLE], VP
------------------------------------------
Dated: 4/8/99
---------------------------------------
Attest:
Its: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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Tenant: Streamline Mid-Atlantic, Inc., a
Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Dated: 3/26/99
---------------------------------------
Attest:
Its: /s/ [ILLEGIBLE]
---------------------------
Parent of Tenant: Streamline, Inc., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Dated: 3/26/99
---------------------------------------
Attest:
Its: /s/ [ILLEGIBLE]
---------------------------
JOINDER BY REII-GAITHERSBURG
REII-Gaithersburg hereby joins in the execution of this Expansion Addendum to
evidence its consent thereto and agreement to be bound by the provisions of this
Expansion Addendum in the event that REII-Gaithersburg and Landlord close on the
acquisition of the Property.
Witness/Attest: REII - Gaithersburg, Maryland, L.L.C., a Delaware limited
liability company
------------------
By: REII - Gaithersburg Managing Corp., a Delaware
corporation, its managing member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
Date: 4/9/99
---------------------------------------------------
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EXHIBIT A
FORM OF GUARANTY BY STREAMLINE, INC.
GUARANTY
This Guaranty ("Guaranty") to and in favor of MANOR CARE, INC., a Delaware
corporation, having a place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ or its successors or assigns ("Landlord"), is made as of March
__, 1999, by and from STREAMLINE, INC., a Delaware corporation, having a place
of business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Guarantor").
EXPLANATORY STATEMENT
A. Streamline Mid-Atlantic, Inc., a Delaware corporation ("Tenant"), has
entered into a lease with Landlord dated August 18, 1997 and modified by a rider
dated August 18, 1997 (collectively the "Original Lease") for the lease of
certain demised premises located at 11531 - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ (the "Building") and has agreed to lease from Landlord pursuant to an
expansion addendum of even date herewith (the "Expansion Addendum") additional
space at the Building (the Original Lease and the Expansion Addendum as the same
may, from time to time, be renewed, amended, modified, supplemented or assigned,
are collectively referred to in the singular as the "Lease").
B. Landlord is willing to enter into the Expansion Addendum with Tenant
only on the condition that all of the obligations of Tenant under the Lease are
guaranteed by Guarantor in accordance with the terms and conditions of this
Guaranty.
C. Guarantor expects to derive substantial benefit from the Lease as
Tenant is a wholly-owned subsidiary of Guarantor.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, the Guarantor agrees as follows:
1. Guarantor irrevocably guarantees: (a) the due and punctual payment in
full of any and all amounts due and owing by Tenant to Landlord under the Lease
after the expiration of any applicable grace periods or notice requirements, if
any, afforded to Tenant pursuant to the terms of the Lease; including interest
and default interest; (b) the due and punctual performance of Tenant's other
obligations under the Lease; (c) all reasonable expenses, including attorneys'
fees, incurred by Landlord in enforcing the Lease or this Guaranty; and (d) any
of the foregoing that would have accrued but for the commencement of, or any
rulings or determinations made pursuant to, a bankruptcy, insolvency, or similar
proceeding (collectively, the "Guaranteed Obligations"). The Guaranteed
Obligations shall be determined without regard to any modification or reduction
that may occur pursuant to any bankruptcy, insolvency, or similar proceeding
including, without limitation, any reduction or limitation thereof that may
occur under Section 502(b)(6) of the United States Bankruptcy Code, or any
similar or successor statute.
2. Guarantor's liability under this Guaranty shall be primary and not
secondary, shall constitute a guarantee of payment and not of collection, shall
be absolute and unconditional and shall be and remain in full force and effect
as the separate and independent undertaking of Guarantor without regard to the
genuineness, validity or enforceability of the Lease, unless any such failure of
the genuineness or validity of the Lease is the result of Landlord's not being
authorized to enter into the Lease. The Guaranteed Obligations shall not be
subject to offset, deduction, reduction, counterclaim, or defense of any kind,
including without limitation on account of any offset, deduction, reduction,
counterclaim, or defense arising or purportedly arising under the Lease or from
the landlord-tenant relationship thereunder. Without notice to, or consent by,
Guarantor, and in Landlord's sole and absolute discretion and without prejudice
to Landlord or in any way limiting or reducing Guarantor's liability under this
Guaranty, Landlord may: (a) grant extensions of time, renewals or other
indulgences or modifications to Tenant; (b) change, amend or modify the Lease;
and (c) file or refrain from filing a claim in any bankruptcy or similar
proceeding, and otherwise deal with Tenant and any other party related to the
Lease.
3. This Guaranty is a continuing guarantee and shall remain in full force
and effect until the Guaranteed Obligations are fully completely and
indefeasibly, paid, performed and/or discharged.
4. Guarantor shall be subrogated to all rights of Landlord in respect of
any amounts paid by Guarantor pursuant to the provisions of this Guaranty;
provided, however, that Guarantor shall be entitled to enforce, or to receive
any payments arising out of or based on, such right of subrogation only after
the Guaranteed Obligations have been indefeasibly paid in full and fully
performed, and only in the event that such right of subrogation does not violate
(or otherwise produce any result adverse to Landlord under) any bankruptcy or
insolvency law.
5. (a) This Guaranty shall continue to be effective or reinstated, as the
case may be, if at any time any payment made to Landlord by Guarantor hereunder
or by Tenant under the Lease is rescinded or must otherwise be returned by
Landlord as a result of the insolvency, bankruptcy, or reorganization by
Guarantor or Tenant, all as though such payment had not been made.
(b) Guarantor waives any right to require Landlord to
exercise any or all of its rights and remedies against Tenant or pursue any
other right or remedy for Guarantor's benefit.
(c) Guarantor waives diligence and all demands (other than demands,
if any, required herein), protests, presentments and notices of every kind or
nature, including notices of protest, dishonor, nonpayment, acceptance of this
Guaranty and the creation, renewal, extension, modification or accrual of any of
the Guaranteed Obligations. No failure or delay on Landlord's part in exercising
any power, right or privilege under this Guaranty shall impair or waive any such
power, right or privilege. Guarantor irrevocably waives any right to trial by
jury in any action, proceeding, counterclaim or other litigation arising out of
or relating to this Guaranty.
(d) Landlord may enforce this Guaranty against Guarantor either
before, after, in conjunction with, or independently of Landlord's assertion
against Tenant of any remedies available under the Lease or at law.
2
(e) Guarantor's liability under this Guaranty shall not be limited,
restricted, diminished, or reduced in any manner by the occurrence of any of the
following: (a) Tenant's departure from the Premises (as such term is defined in
the Lease); (b) Landlord's obtaining a monetary judgment against Tenant, except
to the extent that such judgment has actually been paid and such payment(s) are
(or should be in accordance with the terms of such judgment) credited against
the Guaranteed Obligations; or (c) the termination or modification of any
affiliation between Landlord and Tenant.
6. Guarantor represents and warrants that it is a corporation duly
organized and validly existing under the laws of its state of incorporation and
that it has full power and legal right to execute and deliver this Guaranty and
the same is enforceable against Guarantor in accordance with its terms.
7. All notices shall be in writing and deemed effective for all purposes
as of the date such communication is mailed, postage prepaid, by certified mail,
return receipt requested, to be delivered as follows: Streamline, Inc., ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: Comptroller.
8. No right, benefit, or obligation of Guarantor under this Guaranty may
be assigned without the prior written consent of Landlord.
9. If Landlord executes and delivers any mortgage, deed of trust,
indemnity deed of trust, or other real property security instrument affecting
Landlord's estate in the Premises (a "Mortgage" (and the holder or beneficiary
of such Mortgage, a "Mortgagee")), then from and after such time as Guarantor
has received notice thereof and continuing until either (a) the Mortgage has
been discharged, released or satisfied of record, or (b) a Foreclosure Event (as
such term is defined in the Lease) has occurred and all Guaranteed Obligations
have been fully paid and performed: (1) any assignment by Landlord of the Lease
to Mortgagee (whether contained in the Mortgage or in a separate instrument)
shall be deemed, without further action, to include an assignment of this
Guaranty to Mortgagee or, from and after a Foreclosure Event, to Landlord's
successor-in-interest pursuant to such Foreclosure Event; (2) this Guaranty may
not be amended, modified, or waived, in whole or in part, without Mortgagee's
prior written consent; and (3) from and after any Foreclosure Event, if either
or both (x) the Lease remains in effect and/or (y) Tenant remains in possession
of the Premises, then this Guaranty shall continue to apply to the Guaranteed
Obligations for the benefit of Landlord's successor-in-interest pursuant to such
Foreclosure Event. The foregoing shall not limit the effectiveness of any other
waivers provided for in this Guaranty.
10. The invalidity of any clause of this Guaranty shall not affect the
validity of the remaining clauses.
11. This Guaranty constitutes the entire agreement between the parties and
supersedes all prior oral and written agreements between the parties hereto with
respect to the subject matter hereof.
12. This Guaranty shall be construed and enforced in accordance with, and
governed by, the laws of the State of Maryland.
3
13. This Guaranty shall apply to and bind successors and assigns of the
parties. Guarantor acknowledges that it has been advised that Landlord and
REII-Gaithersburg, Maryland, L.L.C., a Delaware limited liability company
("REII-Gaithersburg") have entered into a purchase contract, as amended for the
purchase and sale of certain real property and improvements thereon, including
the Building. Without in any way limiting the generality of the foregoing, upon
the sale of the Building to REII-Gaithersburg, or any other party, the terms,
conditions and provisions of this Guaranty shall inure to the benefit of and the
obligations of Guarantor shall be binding upon such successor landlord without
the requirement of any notice to Guarantor.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed and
delivered as of the day and year first above written.
GUARANTOR:
Streamline, Inc.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman / CEO
ATTEST:
/s/ [ILLEGIBLE]
------------------------------
Secretary/Assistant Secretary
4