EXHIBIT 10.1
AGREEMENT OF
LEASE
THIS AGREEMENT OF
LEASE (“Lease”) is made this 28th day of
March
, 2008,
but effective January 1, 2008, by and between BEAVER DAM
LIMITED LIABILITY COMPANY, a Maryland limited liability company,
(“Landlord”) and SINCLAIR BROADCAST GROUP, INC., a
Maryland corporation (“Tenant”).
Intending to be
legally bound, Landlord and Tenant agree as set forth
below.
1. DEMISED
PREMISES . Landlord, for the term and subject to the
provisions and conditions hereof, leases to Tenant, and Tenant
rents from Landlord, the space (the “Demised Premises”)
containing 66,551 rentable square feet, as shown on
Exhibit “A” attached hereto and made part of
hereof, including the area of the rooftop where antennae and/or
satellite dishes are currently located and the outside area in
which satellite dishes are currently located, in the building
erected on certain land (the “Land”) located at 10706
Beaver Dam Road, Cockeysville, Maryland 21030, together with rights
of ingress and egress thereto, and with the right in common with
others to use, to the extent applicable, the elevators and common
passageways, stairways, vestibules, and to pass over and park on
that portion of land owned by Landlord and designated by the
Landlord for Tenant’s parking. Landlord’s prior
written consent shall be required for the installation of any
additional antennae or satellite dishes, which consent Landlord may
withhold in its sole and absolute subjective discretion; provided
Tenant shall have the right to install up to three
(3) additional rooftop satellite dishes not to exceed two and
one-half (2.5) feet in diameter.
2. LEASE
TERM . The lease term (the “Lease Term”) shall
commence as of January 1, 2008 (the “Commencement
Date”) and will continue until December 31, 2017 and
thereafter unless extended or sooner terminated as provided herein;
provided, Tenant shall have the right to extend the Lease Term for
an additional five (5) year period ending December 31,
2021, by providing written notice thereof to Landlord on or before
September 1, 2017. The parties agree that immediately
prior to the Commencement Date all existing leases between the
parties hereto relating to the Demised Premises shall terminate and
be of no further force and effect.
3. FIXED
RENT . Fixed rent (the “Fixed Rent”) is payable by
Tenant beginning on the Commencement Date in monthly installations
as set forth on Exhibit B hereto, representing one-twelfth
(1/12) of the annual Fixed Rent (the “Annual Fixed
Rent”) as set forth on Exhibit B hereto, without prior
notice or demand, and without any setoff or deduction whatsoever,
in advance, on the first day of each month at such place as
Landlord may direct. Annual Fixed Rent shall include the
Operating Expense Allowance as set forth in Section 2.1 of
Exhibit “C” hereto. Annual Fixed Rent shall
be subject to adjustment as provided in Section 2 of
Exhibit “C” hereto. If any portion of Fixed
Rent, Additional Rent, or any other sum payable to Landlord
hereunder shall be due and unpaid for more than five (5) days,
the balance due shall be subject to and include a 10 percent
penalty. In addition, if any portion of Fixed Rent,
Additional Rent or any other sum payable to Landlord hereunder
shall be due and unpaid for more than five (5) days after
written notice of non-payment by Landlord to Tenant (which written
notice shall not be required more than two times in any period of
twelve (12) consecutive months), it shall thereafter bear interest
at a rate equal to three percent (3%) per annum greater than the
highest prime rate of interest announced from time to time by Bank
of America (or its successor) (the “Default Rate”), as
the same may change from time to time, from the due date until the
date of payment thereof by Tenant, provided,
1
however, that nothing
herein contained shall be construed or implemented in such a manner
as to allow Landlord to charge or receive interest in excess of the
maximum legal rate then allowed by law.
4. ADDITIONAL
RENT . Tenant shall pay as additional rent (“Additional
Rent”) its proportionate share of all operating expenses in
the amounts and in the manner set forth in
Exhibit “C” hereto and all other sums due
hereunder.
5. SECURITY
DEPOSIT . Tenant has previously deposited with Landlord the sum
of Ninety-Six Thousand Three Hundred Eighty-Nine Thousand Dollars
and Seventy-Eight Cents ($96,389.78) as security for the faithful
performance and observance by Tenant of the terms, provisions and
conditions of this Lease. It is agreed that in the event
Tenant defaults in respect of any of the terms, provisions and
conditions of this Lease, including, but not limited to, the
payment of rent and additional rent, Landlord may use, apply or
retain the whole or any part of the security so deposited to the
extent required for the payment of any rent and additional rent or
any other sum as to which Tenant is in default or for any sum which
Landlord may expend or may be required to expend by reason of
Tenant’s default in respect of any of the terms, covenants
and conditions of this Lease, including but not limited to any
damages or deficiency in the reletting of the leased premises,
whether such damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord. In the event that
Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this Lease, the security
shall be returned to Tenant, without interest, after the date fixed
as the end of the Lease and after delivery of entire possession of
the leased premises to Landlord. In the event of a sale of
the land and building of which the leased premises form a part,
hereinafter referred to as the Building, or leasing of the
building, Landlord shall have the right to either transfer the
security to the Tenant and Landlord shall thereupon be released by
Tenant from all liability for the return of such security or
transfer the security to the new Landlord in which case Tenant
agrees to look to the new Landlord solely for the return of said
security. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited
herein as security and that neither Landlord nor its successors or
assigns shall be bound by and such assignment, encumbrance,
attempted assignment or attempted encumbrance.
In the event of
any bankruptcy or other insolvency proceeding against Tenant, it is
agreed that all such security deposit held hereunder shall be
deemed to be applied by Landlord to rent, sales tax and other
charges due to Landlord for the last month of the lease term and
each preceding month until such security deposit is fully
applied.
6. USE OF
DEMISED PREMISES . Tenant covenants and agrees to use and
occupy the Demised Premises for general office purposes and as a
broadcast and satellite receive facility and other uses incidental
to and associated with Class A office buildings and broadcast
and satellite receive facilities and only in conformity with the
law. Tenant shall not use or permit any use of the Demised
Premises which creates any safety or environmental hazard, or which
would: (i) be dangerous to the Demised Premises, the Building
or other tenants, or (ii) be disturbing to other tenants of
the Building, or (iii) cause any increase in the premium cost
for any insurance which Landlord may then have in effect with
respect the Building generally.
7. TENANT
IMPROVEMENTS ALLOWANCE. On January 1, 2013 Landlord
shall pay to Tenant an amount in cash equal to Six Dollars ($6.00)
per square foot, equal to Three Hundred Ninety-Six Thousand Three
Hundred Six Dollars ($396,306)(1) which Tenant may use for general
upkeep of and/or tenant improvements to the Demised Premises,
including (without limitation) painting and carpet replacement.
(1) The tenant
improvement allowance shall be paid only with respect to 66,051
square feet of the Demised Premises.
2
8. ALTERATIONS
OR IMPROVEMENTS BY TENANT .
8.1 During the Lease Term,
except for painting and carpet replacement undertaken by Tenant in
accordance with Section 7, Tenant shall not make any
alterations, additions, improvements, redecorating or other changes
to the Demised Premises without the prior written approval (such
approval not to be unreasonably withheld or delayed) of Landlord
and then only in accordance with plans and specifications
previously approved in writing by Landlord and subject to such
conditions as Landlord may require, including, without limitations,
that, except as provided in Section 7, Tenant be required to
pay for any increased cost to Landlord occasioned thereby or
attributed thereto. Prior to the termination of this Lease
and without additional notice to Tenant by Landlord, Tenant shall
either: (i) remove any such alterations or additions and
repair any damage to the Building or the Demised Premises
occasioned by their installation or removal and restore the Demised
Premises to substantially the same condition as existed prior to
the time when any such alterations or additions were made, or
(ii) reimburse Landlord for the cost of removing such
alterations or additions and the restoration of the Demised
Premises. Landlord shall determine any such cost as called
for in clause (ii) above prior to the termination of this
Lease and Tenant shall reimburse Landlord within thirty (30) days
of receipt of such notice.
8.2 After
the time of initial occupancy of the Demised Premises by Tenant,
Tenant shall have the right to construct and alter the Demised
premises, subject to paragraph 8.1, provided, however, that such
construction does not include any alterations affecting the
exterior or structural components of the Building (other than the
installation of any rooftop antennae), or any material alterations
to the systems of the Building, including, but not limited to HVAC,
electric or plumbing. Any Tenant construction shall be
performed by Tenant’s contractors and shall be solely
Tenant’s responsibility. All of Tenant’s
construction shall be at Tenant’s expense.
8.3 Prior to
commencement of construction:
(a) Landlord
shall approve in writing (such approval not to be unreasonably
withheld or delayed) the plans and specifications for any
alterations to the Demised Premises, such approval by Landlord
shall not be deemed to be an approval by Landlord of any work
performed pursuant thereto or approval or acceptance by Landlord of
any material furnished with respect thereto or a representation by
Landlord as to the fitness of such work or materials, and shall not
give rise to any liability or responsibility of
Landlord.
(b) Landlord
shall approve in writing (such approval not to be unreasonably
withheld or delayed) each contractor and subcontractor (which shall
each be of sound financial status and good reputation in the
community and a duly licensed and qualified professional in the
state and, to the extent necessary, township in which the Building
is located) to perform such alterations.
(c) Tenant
shall deliver to Landlord a certificate evidencing each
contractor’s liability, completed operations and
worker’s compensation insurance and naming Landlord as an
additional insured, which insurance shall be with a carrier, in
amounts and otherwise on terms satisfactory to Landlord.
(d) Each
contractor shall execute and Tenant shall cause to be filed with
the appropriate governmental agency in a timely manner such waivers
and releases of liens and other documents necessary to insure
against imposition of any mechanics’ and material
suppliers’ liens for labor furnished and material supplied in
connection with the alterations and improvements. Tenant
shall deliver copies of such waivers and releases of liens to
Landlord together with evidence of the timely filing
thereof.
3
8.4 Tenant
covenants and agrees:
(a) Except
as set forth in Section 7, to secure and pay for all necessary
building and other permits and fees in connection with the
alterations and improvements.
(b) All
construction shall be done in compliance with all applicable laws
and ordinances and in a good and workerlike manner in accordance
with the approved plans and specifications.
(c) To
obtain and deliver to Landlord a Certificate of Occupancy (or its
equivalent) issued by the appropriate governmental authority upon
completion of the construction of the Demised Premises.
(d) To abide
by any collective bargaining agreements or other union contracts
applicable to Tenant, the Building or Landlord.
(e)
All materials, supplies and workers shall enter the Demised
Premises and all work shall be performed at times and by means
satisfactory to Landlord.
8.5 Tenant
and any approved contractor, subcontractor or material supplier
may, after notice to Landlord, enter the Demised Premises during
reasonable times after the execution hereof for the purpose of
constructing the improvements as aforesaid and inspecting and
measuring the Demised Premises, provided that such entry does not,
in Landlord’s reasonable judgment, interfere with the
operations of the Building or with Landlord’s work therein,
or that of any other tenants in the Building. Tenant shall be
responsible of any and all damage or injury caused by such
contractors, subcontractors, material suppliers and Tenant in the
course of constructing the improvements, and Tenant’s
obligation to indemnify, defend and hold Landlord harmless set
forth in Article 14 shall, include without limitation all work
done by Tenant pursuant to this paragraph 7 and shall commence on
the date of execution hereof.
8.6 Landlord
and its agents or other representatives shall be permitted to enter
the Demised Premises to examine and inspect the construction of the
alterations and improvements, provided, that no such inspection or
examination shall constitute an approval or warranty or give rise
to any liability of Landlord with respect to any
thereof.
9. COVENANTS OF
LANDLORD . Landlord will supply for normal office use
during normal business hours (excluding holidays), which the
parties agree are from 8:00 a.m. through 6:00 p.m.,
Monday through Friday and 9:00 a.m. through 1:00 p.m.
Saturday, except in the case of the first floor production facility
and the server room where the parties agree normal business hours
are 24 hours a day, 7 days a week, heat and air conditioning
(except that, in the event that such utilities are separately
metered and are paid for by Tenant, Landlord shall supply only the
equipment for such utilities), elevator service (where applicable),
janitorial and cleaning services, electricity, and hot and cold
water, all in amounts consistent with services provided in similar
buildings in the community, provided that: (i) Landlord shall
not be liable for failure to supply or interruption of any such
service by reason of any cause beyond Landlord’s reasonable
control (ii) if Tenant’s use of electricity in
Landlord’s judgment exceeds a normal office use level (which
includes only customary office lighting levels and operation of
desktop portable office equipment), Landlord may, at Tenant’s
expense, install meters to measure the electricity consumed on the
Demised Premises and bill Tenant for any cost thereof above normal
office use levels; (iii) if Tenant requires janitorial and
cleaning services beyond those provided by Landlord, Tenant shall
arrange for such additional services through Landlord, and Tenant
shall pay Landlord upon receipt of billing therefore; and
(iv) if Tenant requires installation of a separate or
supplementary heating, cooling,
4
ventilating and/or air
conditioning system Tenant shall pay all costs in connection with
the furnishing, installation and operation thereof. Landlord
shall be responsible, at its sole cost and expense, for structural
repairs and capital improvements (unless otherwise provided for
herein) to the Building, unless such repairs are necessitated by
damage caused by the negligence or misconduct of Tenant or
Tenant’s officers, directors, employees, invitees or
agents. Landlord will maintain the “Sinclair”
sign which is currently affixed on the outside, near the top of the
Building and the sign which is currently located near the street
identifying the tenants in the Building. Landlord will supply
for normal office use during normal business hours (excluding
holidays), which the parties agree are from 9:00 a.m. through
5:00 p.m., Monday through Friday, security services; provided,
that Landlord shall not be liable for failure to supply or
interruption of any such service by reason of any cause beyond
Landlord’s reasonable control. At all times during the
Lease Term, Landlord will maintain and provide Tenant with the
details of a written evacuation plan for the safety and protection
of the Building and its occupants and will permit Tenant to hold,
and assist Tenant in holding, at least one fire drill per calendar
year.
10. COVENANTS OF TENANT
. Tenant will (at Tenant’s sole cost and expense):
10.1 Keep
the Demised Premises in good order and repair, reasonable wear and
tear expected;
10.2
Surrender the Demised Premises at the end of this Lease in the same
condition in which Tenant has agreed to keep it during the Lease
Term;
10.3 Not
place, erect, maintain or display any sign or other marking of any
kind whatsoever on the windows, doors or exterior walls of the
Demised Premises and not use or place any curtains, blinds, drapes
or coverings over any exterior windows or upon the window surfaces
which are visible from the outside of the Building; except the
Tenant shall be permitted to install its standard signage and logo
on Tenant’s entrance door with the approval of Landlord
(which approval shall not be unreasonably withheld or delayed), and
Tenant shall be listed on the directories on the elevator lobby of
Tenant’s floor, the Building lobby and Building exterior in
the same manner as other tenants in the Building;
10.4 Be
financially responsible for the maintenance of all plumbing and
other fixtures in the Demised Premises, whether installed by
Landlord or by Tenant and for repairs and replacements to the
Demised Premises and the Building made necessary by reason of
damage thereto caused by Tenant or its agents, servants, invitees
or employees. In the event Tenant shall fail to perform such
maintenance or make such repairs within sixty (60) days of the date
such work becomes necessary, Landlord may, but shall not be
required to, perform such work and charge the amount of the expense
therefore, with interest accruing and payable thereon, all in
accordance with Article 18 below;
10.5
Comply with all laws, enactments and regulations of any
governmental authority relating or applicable to Tenant’s
occupancy of the Demised Premises and any covenants, easements and
restrictions governing the Land or Building, and indemnify, defend
and hold Landlord harmless from all consequences from its failure
to do so;
10.6
Promptly notify Landlord of any damage to or defects in the Demised
Premises, any notices of violation received by Tenant and of any
injuries to persons or property which occur therein or claims
relating thereto;
10.7
Subject to Article 7, pay for any alterations, improvements or
additions to the Demised Premises and any light bulbs, tubes and
non-standard Building items installed by or for Tenant, and allow
no lien to attach to the Building with respect to any of the
foregoing;
5
10.8
Without the prior written consent of Landlord, not place within the
Demised Premises or bring into the Building (i) any machinery,
equipment or other personalty other than customary office
furnishings and small machinery, or any machinery,
(ii) equipment or other personalty consistent with the
reception and broadcast of satellite transmissions or
(iii) other personalty having a weight in excess of the design
capacity of the Building;
10.9 Not
use the Demised Premises for the generation, manufacture, refining,
transportation, treatment, storage or disposal of any hazardous
substance or waste or for any purpose which poses a substantial
risk of damage to the environment; in this regard Tenant represents
that it does not have a Standard Industrial Classification number
as designated in the Standard Industrial Classifications Manual
prepared by the Office of Management and Budget in the Executive
Office of the President of the United States that is any of 22-39
inclusive, 46-49 inclusive, 51 or 76 and will not engage in any
activity which would subject Tenant to the provisions of the
Federal Comprehensive Environmental Response, Liability and
Clean-Up Act (42 U.S.C. Section 9601 et seg. ), the
Federal Water Pollution Control (33 U.S.C.A. Section 1151
et seg. ), the Clean Water Act of 1977 (33 U.S.C.A.
Section 1251 et seg. ), or any other federal, state or
local environmental law, regulation or ordinance;
10.10 Comply with all
rules and regulations which may hereafter be promulgated by
Landlord, including those rules and regulations set forth in
Exhibit “D” hereto and with all reasonable changes
and additions thereto upon notice by Landlord to Tenant (such
rules and regulations, together with all changes and additions
thereto, are part of this Lease); Landlord shall notify Tenant in
writing at least fifteen (15) days prior to the promulgation of
such rules and regulations or changes thereto. Landlord
agrees to enforce such rules and regulations against all
tenants in the Building in a non-discriminating fashion and to take
reasonable action to cause a cessation of any violation of all
rules that interfere with Tenant’s use and quiet
enjoyment of the Premises;
10.11 Comply with all
reasonable recommendations of Landlord’s or Tenant’s
insurance carriers relating to layout, use storage of materials and
maintenance of the Demised Premises.
11. ASSIGNMENT AND
SUBLETTING . Tenant shall not assign, pledge, mortgage or
otherwise transfer or encumber this Lease, nor sublet all or any
part of the Demised Premises or permit the same to be occupied or
used by anyone other than Tenant or its employees without
Landlord’s prior written consent (such consent not to be
unreasonably withheld or delayed). Notwithstanding the
foregoing, Tenant shall have the right to assign this Lease or
sublet the Demised Premises or any part thereof, without the
consent of Landlord, to any parent, subsidiary or affiliate of
Tenant, or to the owner of the Mid-Atlantic Sports Network
(“MASN”). Any consent by Landlord hereunder (or
assignment where such consent is not required) shall not constitute
a waiver of strict future compliance by Tenant of the provisions of
this Article 11 or a release of Tenant from the full
performance by Tenant with any of the terms, covenants, provisions
or conditions in this Lease. For purposes of this
Article 11, any transfer or change in control of Tenant (or
any subtenant, assignee or occupant) by operation of law or
otherwise, shall be deemed an assignment hereunder, including,
without limitation, any merger, consolidation, dissolution or any
change in the controlling equity interests of Tenant or any
subtenant, assignee, or occupant (in a single transaction or a
series of related transaction). Any assignment or subletting
in contravention of the provisions of this Article 11 shall be
void. Except with respect to existing tenants and sub-tenants
of the Demised Premises, including (without limitation) MASN, for
which no fee will be due to Landlord, Tenant will pay to Landlord
with respect to each year in which a sub-tenant leases space in the
building from Tenant fifty percent of any “Excess Rent”
(as defined below) received from any new sub-tenant of Tenant in
the Demised Premises. “Excess Rent” with respect
to any year shall be the result obtained by multiplying
(x) the number of square feet of space in the Demised Premises
subleased by a
6
new sub-tenant by
(y)the excess, if any, of the annual rent per square foot paid by
such sublessor over the “Rental Rate,” (as defined
below) then in effect by (z) a fraction, the numerator of
which is the number of months in such year for which sub-tenant
pays rent to Tenant and the denominator of which is twelve
(12). The “Rental Rate” shall be Twenty-Two
Dollars and Fifty Cents ($22.50) in calendar year 2008 and shall be
increased on January 1, 2009 and on each January 1
st thereafter by three percent (3%). The payment
required hereby will be remitted by Tenant to Landlord in equal
monthly installments.
12. EMINENT DOMAIN
. If the whole or more than fifty percent (50%)
of the Demised Premises (or use or occupancy of the Demised
Premises) shall be taken or condemned by an governmental or
quasi-governmental authority for any public or quasi-public use or
purpose (including sale under threat of such a taking), or if the
owner elects to convey title to the condemnor by a deed in lieu of
condemnation, or if all or any portion of the Land or Building are
so taken, condemned or conveyed and as a result thereof, in
Landlord’s judgment, the Demised Premises cannot be used for
Tenant’s permitted use as set forth herein, then this Lease
shall cease and terminate as of the date when title vests in such
governmental or quasi-governmental authority and the Fixed Rent and
Additional Rent shall be abated on the date when such title vests
in such governmental or quasi-governmental authority. If less
than fifty percent (50%) of the Demised Premises is taken or
condemned by any governmental or quasi-governmental authority for
any public or quasi-public use or purpose (including sale under
threat of such a taking), the Fixed Rent and Tenant’s
proportionate share shall be equitably adjusted )on the basis of
the number of square feet before and after such event) on the date
when title vests in such governmental or quasi-governmental
authority and the Lease shall otherwise continue in full force and
effect. In any case, Tenant shall have no claim against
Landlord for any portion of the amount that may be awarded as
damages as a result of any governmental or quasi-governmental
taking or condemnation (or sale under threat or such taking or
condemnation); and all rights of Tenant to damages therefore are
hereby assigned by Tenant to Landlord. The foregoing shall
not, however, deprive Tenant of any separate award for moving
expenses, dislocation damages or for any other award which would
not reduce the award payable to Landlord.
13. CASUALTY DAMAGE .
13.1 In
the event of damage to or destruction of the Demised Premises
caused by fire or other casualty, or any such damage or destruction
to the Building or the facilities necessary to provide services and
normal access to the Demised Premises in accordance herewith,
Landlord, after receipt of written notice thereof from Tenant,
shall undertake to make repairs and restorations with reasonable
diligence as hereinafter provided, unless this Lease has been
terminated by Landlord or Tenant as hereinafter provided or unless
any mortgagee which is entitled to receive casualty insurance
proceeds fails to make available to Landlord a sufficient amount of
such proceeds to cover the cost of such repairs and
restoration. If (i) the damage is of such nature or
extent that, in Landlord’s sole judgment, more than one
hundred and twenty (120) days would be required (with normal work
crews and hours) to repair and restore the part of the Demised
Premises or Building which has been damaged, or (ii) the
Demised Premises or Building is so damaged that, in
Landlord’s sole judgment, it is uneconomical to restore or
repair the Demised Premises or the Building, as the case may be, or
(iii) less than two (2) years then remain on the current
Lease Term, Landlord shall so advise Tenant promptly, and either
party, in the case described in clause (i) above, or Landlord,
in the cases described in clauses (ii) or (iii) above,
within thirty (30) days after any such damage or destruction shall
have the right to terminate this Lease by written notice to the
other, as of the date specified in such notice, which termination
date shall be no later than thirty (30) days after the date of such
notice.
13.2 In
the event of fire or other casualty damage, provided this Lease is
not terminated pursuant to the terms of this Article 13 and is
otherwise in full force and effect, and sufficient casualty
7
insurance proceeds are
available for application to such restoration or repair, Landlord
shall proceed diligently to restore the Demised Premises to
substantially its condition prior to the occurrence of the
damage. Landlord shall not be obligated to repair or restore
any alterations, additions, fixtures or equipment which Tenant may
have installed (whether or not Tenant has the right or the
obligation to remove the same or is required to leave the same on
the Demised Premises as of the expiration or earlier termination of
this Lease) unless Tenant, in a manner satisfactory to Landlord,
assures payment in full of all costs as may be incurred by Landlord
in connection therewith.
13.3
Landlord shall not insure any improvements or alterations to the
Demised Premises in excess of Building standard tenant
improvements, or any fixtures, equipment or other property of
Tenant. Tenant shall, at its sole expense, insure the value
of its leasehold improvements, fixtures, equipment and personal
property located in or on the Demised Premises, for the purpose of
providing funds to Landlord to repair and restore the Demised
Premises to substantially its condition prior to occurrences of the
casualty occurrence. If there are any such alterations,
fixtures or additions and Tenant does not assure or agree to assure
payment of the cost of restoration or repair as aforesaid, Landlord
shall have the right to restore the Demised Premises to
substantially the same condition as existed prior to the damage,
excepting such alterations, additions or fixtures.
13.4 The
validity and effect of this Lease shall not be impaired in any way
by the failure of Landlord to complete repairs and restoration of
the Demised Premises or of the Building within one hundred and
twenty (120) days after commencement of the work, even if Landlord
had in good faith notified Tenant that the repair and restoration
could be completed within such period, provided that Landlord
proceeds diligently with such repair and restoration. In the case
of damage to the Demised Premises which is of a nature or extent
that Tenant’s continued occupancy is in the reasonable
judgment of Landlord and Tenant substantially impaired, then the
Annual Fixed Rent and Tenant’s Proportionate Share otherwise
payable by Tenant hereunder shall be equitably abated or adjusted
for the duration of such impairment. Tenant shall be
responsible to repair all of Tenant’s leasehold improvements
and all equipment, fixtures and personal property located in or on
the Demised Premises subject to Article 8. and to such other
conditions as Landlord may require.
14. INSURANCE AND
INDEMNIFICATION OF LANDLORD; WAIVER OF SUBROGATION .
14.1
Tenant covenants and agrees to exonerate, indemnify, defend,
protect and save Landlord, its representatives and Landlord’s
managing agent, if any, harmless from and against any and all
claims, demands, expenses, losses, suits and damages as may be
occasioned by reason of (i) any accident or matter occurring
on or about the Demised Premises, causing injury to persons or
damage to property (including, without limitation, the Demised
Premises), unless such accident or other matter resulted solely
from the negligence or otherwise tortious act of Landlord or
Landlord’s agents or employees, (ii) the failure of
Tenant or any subtenant fully and faithfully to perform the
obligations and observe the conditions of this Lease, and
(iii) the negligence or otherwise tortious act of Tenant, any
subtenant or anyone in or about the Building on behalf of or at the
invitation or right of Tenant or subtenant. Tenant shall
maintain in full force and effect, at its own expense,
comprehensive general liability insurance (including a contractual
liability and fire legal liability insurance endorsement) naming as
an additional insured Landlord and Landlord’s managing
agents, if any, against claims for bodily injury, death or property
damage in amounts not less than $2,000,000 (or such higher limits
as may be reasonably determined by Landlord from time to time) and
business interruption insurance in an amount equal to
Tenant’s gross income for twelve (12) months. All
policies shall be issued by companies having a Best’s
financial rating of A or better and a size class rating of XII (12)
or larger or otherwise acceptable to Landlord. Tenant has
previously deposited the policy or policies of such insurance, or
certificates
8
thereof, with Landlord
and shall deposit with Landlord renewals thereof at least fifteen
(15) days prior to each expiration. Said policy or policies
of insurance or certificates thereof shall have attached thereto an
endorsement that such policy shall not be canceled without at least
thirty (30) prior written notice to Landlord and Landlord’s
managing agent, if any, that no act or omission of Tenant shall
invalidate the interest of Landlord under said insurance and
expressly waiving all rights of subrogation as set forth
below. At Landlord’s request, Tenant shall provide
Landlord with a letter from an authorized representative of its
insurance carrier stating that Tenant’s current and effective
insurance coverage complies with the requirements contained
herein. Landlord shall maintain in full force and effect, at
its own expense, comprehensive general liability insurance
(including a contractual liability and fire legal liability
insurance endorsement) naming as an additional insured Tenant
against claims for bodily injury, death or property damage in
amounts not less than $2,000,000 (or such higher limits as may be
reasonably determined by Tenant from time to time). All
policies shall be issued by companies having a Best’s
financial rating of A or better and a size class rating of XII (12)
or larger or otherwise acceptable to Tenant. Promptly
following the Commencement Date, Landlord shall deposit the policy
or policies of such insurance, or certificates thereof, with Tenant
and shall deposit with Tenant renewals thereof at least fifteen
(15) days prior to each expiration. Said policy or policies
of insurance or certificates thereof shall have attached thereto an
endorsement that such policy shall not be canceled without at least
thirty (30) days prior written notice to Tenant, that no act or
omission of Landlord shall invalidate the interest of Tenant under
said insurance and expressly waiving all rights of subrogation as
set forth below. At Tenant’s request, Landlord shall
provide Tenant with a letter from an authorized representative of
its insurance carrier stating that Landlord’s current and
effective insurance coverage complies with the requirements
contained herein.
14.2
Landlord and Tenant hereby release the other from any and all
liability or responsibility to the other or anyone claiming through
or under them by way of subrogation or otherwise for any loss or
damage to property covered by insurance then in force, even if any
such fire or other casualty occurrence shall have been caused by
the fault or negligence of the other party, or anyone for whom such
party may be responsible. This release shall be applicable
and in full force and effect, however, only to the extent of and
with respect to any loss or damage occurring during such time as
the policy or policies of insurance covering said loss shall
contain a clause or endorsements to the effect that this release
shall not adversely affect or impair said insurance or prejudice
the right of the insured to recover thereunder. To the extent
available, Landlord and tenant further agree to provide such
endorsements for said insurance policies agreeing to the waiver of
subrogation as required herein.
15. INSPECTION; ACCESS;
CHANGES IN BUILDING FACILITIES .
15.1
Landlord and its agents or other representatives shall be permitted
to enter the Demised Premises at reasonable times (i) to
examine, inspect and protect the Demised Premises and the Building
and (ii) during the last six (6) months of the original
or any renewal term, to show it to prospective tenants and to affix
to any suitable part of the exterior of the Building in which the
Demised Premises is located a notice for letting the Demised
Premises or the Building or (at any time during the original or any
renewal term) selling the Building.
15.2
Landlord shall have access to and use of all areas in the Demised
Premises (including exterior Building walls, core corridor walls
and doors and any core corridor entrances), any roofs adjacent to
the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan rooms,
ducts, electric or other utilities, sinks or other Building
facilities, as well as access to and through the Demised Premises
for the purpose of operation, maintenance, decoration and repair,
provided, however, that except in emergencies such access shall not
be exercised so as to interfere unreasonable with Tenant’s
use of the Demised Premises. Tenant shall permit Landlord to
install, use and
9
maintain pipes, ducts
and conduits within the demising walls, bearing columns and
ceilings of the Demised Premises, provided that the installation
work is performed at such times and by such methods as will not
materially interfere with Tenant’s use of the Demised
Premises, materially reduce the floor area thereof or materially
and adversely affect Tenant’s layout, and further provided
that Landlord performs all work with due diligence and care so as
to not damage Tenant’s property or the Demised
Premises. Landlord and Tenant shall cooperate with each other
in the location of Landlord’s and Tenant’s facilities
requiring such access.
15.3
Landlord reserves the right at any time, without incurring any
liability to Tenant therefore, to make such changes in or to the
Building and the fixtures and equipment thereof, as well as in or
to the street entrances, halls, foyers, passages, elevators, if
any, and stairways thereof, as it may deem necessary or desirable;
provided that there shall be no change that materially detracts
from the character or quality of the Building.
16. DEFAULT
. Any other provisions in this Lease
notwithstanding, it shall be an event of default (“Event of
Default”) under this Lease if: (i) Tenant fails to pay
any installment of Fixed Rent, Additional Rent or other sum payable
by Tenant hereunder when due and such failure continues for a
period of five (5) days after written notice of such
non-payment be Landlord
|
