EXHIBIT 10.27
LEASE AGREEMENT
This
LEASE AGREEMENT (the "Lease") dated as of September 8, 2008 (the
"Date
of Lease") is made by and between GATEWAY 38 LLC, a Maryland
limited liability
company ("Landlord"),
and CARROLLTON BANCORP, a Maryland corporation ("Tenant")
(collectively the "Parties" or individually a "Party").
1. Basic
Provisions.
1.1. Premises:
A portion (the
"Premises"), deemed to
be comprised of
20,427 square feet of
space, known as Suite
"A" and outlined on Exhibit A
attached hereto, of the building (the "Building") located at 7151 Columbia
Gateway Drive in Columbia, Howard County, Maryland. The Building is
located
in
the commercial center
commonly known as "Gateway Business Center" (the
"Commercial Center").
Except to the extent expressly provided to the
contrary elsewhere in this Lease, Tenant shall have non-exclusive
rights to
the
Common Areas (as defined in Section 2.2 of this Lease), but shall not
have
any rights to the roof, the exterior walls or utility raceways of the
Building or to any other buildings in the Commercial Center. The Premises,
the
Building, the Common
Areas, all other buildings and improvements in or
on
the Commercial Center, together with the land upon which all of the
same
are
located, are herein collectively referred to as the "Commercial
Center"
or
the "Property".
Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord
the Premises
upon all of the terms,
covenants and
conditions set forth in this Lease, intending all of such terms,
covenants
and
conditions to be made
under seal. Any
statement of square footage set
forth in this Lease or
that may have been used in calculating Base Rent,
Operating Expenses
and/or Real Property
Taxes is an
approximation
which
Landlord and Tenant
agree is reasonable and the Base Rent and Tenant's
Share based thereon is
not subject to
revision whether or
not the actual
square footage is more or less.
1.2. Term: Ten (10) years, seven (7) months, and twenty-two (22) days
(the
"Term"), commencing on September 9, 2008 (the "Commencement Date")
and
ending on April 30, 2019 (the "Expiration Date"). Tenant shall have the
right to extend the original Term in accordance with the terms and
conditions of Section 15.18 of this Lease.
1.3. Base Rent:
(a) Tenant
shall pay basic rent
("Base Rent") to Landlord for the
Premises during the original Term in accordance with the following
schedule:
<TABLE>
<CAPTION>
<S>
<C>
<C> <C>
<C>
--------------------------------------------------|-------------------------------------------
Period of Time During Original Term
|
Monthly Installment of Base Rent
--------------------------------------------------|-------------------------------------------
September 9, 2008 to December 15, 2008 |
$0.00
(the "Pre-Base Rent
Commencement Date Period") |
--------------------------------------------------|-------------------------------------------
December 16, 2008 to December 31, 2008 |
$10,543.04 (based on
16 days at a per
|
diem rate of $658.94)
--------------------------------------------------|-------------------------------------------
January 1, 2009 to April 30, 2009
|
$0.00
--------------------------------------------------|-------------------------------------------
May 1, 2009 to December 31, 2009
|
$20,427.00
--------------------------------------------------|-------------------------------------------
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
<S>
<C>
<C> <C>
<C>
--------------------------------------------------|-------------------------------------------
January 1,
2010 to December 31, 2010
|
$20,937.68
--------------------------------------------------|-------------------------------------------
January 1,
2011 to December 31, 2011
|
$21,461.12
--------------------------------------------------|-------------------------------------------
January 1,
2012 to December 31, 2012
|
$21,997.64
--------------------------------------------------|-------------------------------------------
January 1,
2013 to December 31, 2013
|
$22,547.58
--------------------------------------------------|-------------------------------------------
January 1,
2014 to December 31, 2014
|
$23,111.27
--------------------------------------------------|-------------------------------------------
January 1,
2015 to December 31, 2015 |
$23,689.05
--------------------------------------------------|-------------------------------------------
January 1,
2016 to December 31, 2016
|
$24,281.28
--------------------------------------------------|-------------------------------------------
January 1,
2017 to December 31, 2017
|
$24,888.31
--------------------------------------------------|-------------------------------------------
January 1,
2018 to December 31, 2018
|
$25,510.52
--------------------------------------------------|-------------------------------------------
January 1, 2019 to April 30, 2019
|
$26,148.28
--------------------------------------------------|-------------------------------------------
</TABLE>
(b) If the Base Rent
Commencement Date (as
defined in Section 1.10 of
this Lease) is not the
1st day of a calendar
month, then and in such event,
Tenant shall also pay
to Landlord on the Base Rent Commencement Date, as the
Base Rent for that period of time commencing on the Base Rent
Commencement Date
and ending
on the last day of the calendar month in which the Base Rent
Commencement Date
shall occur, that amount of money equal to the product of (i)
the number of days
occurring during the
period of time
commencing on the Base
Rent Commencement Date and ending on the last day of the calendar
month in which
the Base Rent
Commencement Date shall occur, and (ii) the per diem rate
derived
from that fraction
having as its
numerator the number
$20,427.00
and as its
denominator the number of days occurring during the calendar month in which
the
Base Rent Commencement Date shall occur.
(c) Notwithstanding
anything to the
contrary set forth
elsewhere in
this Lease, Tenant
shall have no
obligation
to pay to Landlord any monthly
installments of Base
Rent with respect to that period of time commencing on the
1st day of the 1st full calendar month occurring during that portion of the
original Term
commencing on the Base Rent Commencement Date and ending on the
last day of the 4th full calendar month occurring during that portion of the
original Term
commencing
on the Base Rent
Commencement
Date. The terms and
conditions of the preceding sentence of Section 1.3(c) of this Lease shall not
apply to any Renewal Term becoming effective in accordance with the terms and
conditions of Section 15.18 of this Lease.
1.4. Tenant's Share (the "Tenant's Share"):
(a) The Commercial Center or the Property: 10.04%. The Tenant's Share
with respect to the Commercial Center or the Property represents
that percentage
corresponding to the
fraction having as its
numerator the size of the Premises
(20,427 square feet of space) and as its denominator the size of all buildings
in the Commercial Center or the Property (203,459 square feet of
space).
(b) The Building:
42.44%. The Tenant's Share with respect to the
Building represents that percentage corresponding to the fraction
having as its
numerator the size of
the Premises
(20,427 square feet of space) and as its
denominator the size of the Building (48,136 square feet of
space).
(c) The Tax Parcel:
10.04%. The Tenant's Share with respect to the Tax
Parcel (as
defined in Section 10
of this Lease)
represents
that percentage
corresponding to the
fraction having as its
numerator the size of the Premises
(20,427 square feet of space) and as its denominator the size of all buildings
in the Tax Parcel (203,459 square feet of space).
1.5. Security Deposit (the "Security Deposit"): $20,427.00.
1.6. Permitted Use (the "Permitted Use"): General offices. Tenant
shall
use
and occupy the Premises only for the Permitted
Use. Tenant shall not
commit any nuisance,
permit the
emission of any
objectionable
noise or
odor, suffer any
waste, make any use of
the Premises which is contrary to
any
law or ordinance or which will invalidate or increase the
premiums for
any
of Landlord's insurance.
1.7. Guarantor ("Guarantor"): None.
1.8. ADDRESS
FOR RENT PAYMENTS: ALL AMOUNTS PAYABLE BY TENANT TO
LANDLORD SHALL UNTIL
FURTHER NOTICE FROM
LANDLORD BE PAID TO LANDLORD c/o
P.O.
BOX 6110, HICKSVILLE, NEW YORK 11802-6110.
1.9. Tenant's
Estimated Monthly Rent Payment: The following is the
estimated monthly Rent
payment to Landlord
pursuant to the
provisions of
this Lease as of the
Base Rent Commencement
Date. This estimate is made at
the
inception of this
Lease and is subject to adjustment pursuant to the
provisions of this Lease:
<TABLE>
<CAPTION>
<S>
<C>
<C>
(a) Base Rent (Section 4.1 of this Lease)
$20,427.00
(b) Operating Expenses (Section 4.2 of this Lease, excluding Real
2,127.81
Property Taxes and Landlord Insurance)
(c) Landlord Insurance (Section 8.2 of this Lease)
136.18
(d) Real Property Taxes (Section 10 of this Lease)
2,978.94
(e) HVAC Service Contract Expenses (Section 7.1(b) of this Lease)
425.56
----------
Estimated Monthly Payment
$26,095.49
</TABLE>
6
<PAGE>
1.10. BASE RENT COMMENCEMENT DATE (the "Base Rent Commencement
Date").
December 16, 2008,
subject to adjustment in accordance with the terms and
conditions of Section 15.15(e) of this Lease.
1.11. PRE-BASE
RENT COMMENCEMENT DATE PERIOD (the "Pre-Base Rent
Commencement Date
Period"). That period of time during the
original Term
commencing on the
Commencement Date and
ending on the day before the Base
Rent
Commencement Date.
Notwithstanding anything to the contrary set forth
elsewhere in this Lease, in connection with the Pre-Base Rent
Commencement
Date
Period: (a) Tenant shall have no obligation pursuant to this Lease to
pay
to Landlord for the
Premises any payments of Base Rent;
(b) Tenant
shall have no obligation pursuant to this Lease to pay to
Landlord for the
Premises any payments
as Tenant's Share of
Operating Expenses; and (c)
Except to the limited
extent set forth in Section 15.19 of this Lease,
Tenant shall have no right to enter upon, use or occupy the
Premises.
2.
Common Areas. "Common
Areas" are all areas and facilities outside the
Premises and within
the exterior boundary
line of the
Commercial
Center and
interior utility
raceways within the
Premises that are provided and designated
by the Landlord from time to time for the general non-exclusive use
of Landlord,
Tenant and
other tenants of the Commercial Center and their respective
employees, suppliers,
shippers, tenants, contractors and invitees.
Landlord
shall have the
exclusive control and
management of the
Common Areas and shall
have the right, from
time to time, to
establish,
modify, amend and enforce
reasonable Rules and Regulations with respect thereto in accordance
with Section
15.12 of this Lease. Landlord hereby grants to Tenant, for the
benefit of Tenant
and its agents, employees, suppliers, shippers, contractors, customers,
licensees and
invitees, during the
Term, the non-exclusive right to use, in
common with others
entitled to such use,
the Common
Areas as they exist
from
time to time, subject to any rights, powers, and privileges
reserved by Landlord
under the terms hereof
or under the terms of any rules and regulations or
covenants, conditions
and restrictions governing the use of the Commercial
Center. Landlord shall have the right, in Landlord's sole
discretion, from
time
to time: (a) To make changes to the Common Areas, including,
without limitation,
changes in the
locations,
size, shape and number of driveways, entrances,
parking spaces,
parking areas, loading
and unloading areas,
ingress, egress,
direction of traffic,
landscaped areas,
walkways and utility raceways; (b) To
close temporarily any
of the Common Areas for maintenance purposes so long as
reasonable access to the Premises remains available; (c) To
designate other land
outside the boundaries
of the Property to be used by tenants of the Commercial
Center as a part of
the Common
Areas; (d) To add additional buildings and
improvements to the
Common Areas; (e) To
use the Common Areas while engaged in
making additional improvements, repairs or alterations to the
Commercial Center
or any portion thereof; and (f) To do and perform such
other acts and make such
other changes
in, to or with
respect to the Common
Areas and the
Commercial
Center as Landlord may, in the exercise of sound business
judgment, deem to be
appropriate. In
connection
with any exercise by
Landlord of any of the rights
reserved to Landlord pursuant to Section 2 of this Lease, Landlord
shall use its
commercially
reasonable efforts,
except in the event of
an Emergency
(herein
defined), (i) to
minimize any undue disruption to or interference with the use
of the Premises by Tenant for the uses permitted pursuant to this Lease and in
accordance with the
terms and conditions of this Lease, and (ii) to provide an
alternate means of
ingress and egress
from the Premises to one of the public
roadways abutting the Property in the event that all of the routes
of ingress or
egress from the Premises to public roadways abutting the Property
existing as of
the Date of Lease are
blocked or rendered
unavailable.
For purposes of this
Lease, "Emergency"
means any condition or circumstance pertaining to the
Property that, in the sole but reasonable judgment of Landlord, constitutes an
emergency or a condition or circumstance involving imminent danger to property
or to the health or safety of persons.
3.
Delay in Possession.
If for any reason
Landlord cannot
Substantially
Complete (herein
defined) the
Landlord's
Work (herein defined) and deliver
possession of the Premises to Tenant by the Base Rent Commencement Date (as set
forth in Section
1.10 of this
Lease), Landlord shall not be subject to any
liability therefor,
nor shall such failure affect the validity of this Lease or
the obligations of Tenant hereunder. In such case, Tenant shall not,
except as
otherwise provided
herein, be obligated to pay Rent or perform any other
obligation of Tenant
under the terms of
this Lease
until Landlord delivers
possession of the
Premises to Tenant
following Substantial
Completion of the
Landlord's Work.
If possession of the Premises is not delivered to Tenant
following Substantial Completion of the Landlord's Work within 60
days after the
Base Rent Commencement
Date (as set forth in
Section 1.10 of this
Lease) and
such delay is not due to Tenant's acts, failure to act or omissions
Tenant may
by notice in writing
to Landlord within 10 days after the end of
said 60 day
period cancel this Lease, whereupon Landlord shall promptly return
to Tenant all
monies theretofore paid by Tenant to Landlord on account of the
Security Deposit
or any advance
payments of Base Rent, and thereupon the Parties shall be
discharged from all obligations hereunder. If such written notice of Tenant
is
not received by
Landlord within said
10 day period,
Tenant's right to
cancel
this Lease shall terminate.
4.
Rent.
4.1. Base Rent. Tenant shall pay to Landlord Base Rent and other
monetary obligations
of Tenant to Landlord
under the terms of
this Lease
(all
such other monetary
obligations are herein referred to as "Additional
Rent") in lawful money of the United States, without offset or deduction,
in
advance on or before the 1st day of each month. Base Rent and
Additional
Rent
for any period
during the Term which
is for less than one full month
shall be prorated based upon the actual number of days of the month
involved. Payment
of Base Rent and Additional Rent shall be made to
Landlord at its address stated herein or to such other persons or
at such
other addresses as
Landlord may from time to time designate in writing to
Tenant. Base Rent and
Additional
Rent are collectively referred to as
"Rent". All monetary
obligations of Tenant
to Landlord under the terms of
this
Lease are deemed to be Rent.
7
<PAGE>
4.2. Operating Expenses. Commencing on the Base Rent
Commencement Date
Tenant shall pay to
Landlord, on the 1st day of each month
during that
portion of the original Term commencing on the Base Rent
Commencement Date,
and
in addition to the Base Rent, Tenant's Share of all Operating
Expenses
in
accordance with the following provisions:
(a) "Operating Expenses" are all costs incurred by Landlord
relating to
the ownership
and operation of the Commercial Center, including, without
limitation, the
following:
(i) The operation, repair, maintenance and
replacement in neat,
clean, good order and condition of the Common Areas,
including parking
areas, loading and
unloading areas, trash
areas, roadways,
sidewalks, walkways,
parkways, driveways,
landscaped areas, striping, bumpers,
irrigation systems,
drainage systems,
lighting facilities,
fences and gates,
exterior signs and tenant directories; (ii) Water, gas, electricity,
telephone
and other utilities servicing the Common Areas; (iii) Trash disposal,
janitorial, snow
removal, property
management and security services; (iv) Real
Property Taxes (as
defined in Section 10 of this Lease); (v) Premiums for the
insurance policies
maintained by Landlord
under Section 8 of this Lease; (vi)
Environmental
monitoring and insurance programs; (vii) Monthly amortization of
Includable Capital
Expenditures
(herein defined) to the Common Areas and
the
Building (the monthly
amortization of any such Includable Capital Expenditure
shall be the sum of
(A) the quotient
obtained by dividing the cost of the
Includable Capital
Expenditure
by the number of
months of useful life of such
Includable Capital
Expenditure,
as determined in
accordance
with generally
accepted accounting
principles,
consistently applied, plus (B) an amount equal
to the cost of such Includable Capital Expenditure times 1/12 of the
lesser of
12.00% or the maximum annual interest rate permitted by law);
(viii) Maintenance
of the Building including, but not limited to, painting, caulking
and repair and
replacement of Building components, including, but not limited to,
elevators and
fire detection
and sprinkler systems; (ix) Costs incurred by Landlord in
connection with the Roof Maintenance Contract (as defined in Section
7.2 (b) of
this Lease);
and (x) If Tenant
fails to maintain
the Premises, any expense
incurred by Landlord for such maintenance. The inclusion of the improvements,
facilities and
services set forth in Section 4.2(a) of this Lease shall not
be
deemed to impose any obligation upon Landlord to either have said
improvements
or facilities
or to provide those services. To the extent Landlord shall
determine, in its sole
but reasonable
discretion,
that any of the
Operating
Expenses shall
have been incurred solely for the benefit of: (A) Tenant or
otherwise solely or
substantially as a
result of Tenant's use of the Premises,
Landlord shall require that such Operating Expenses be borne solely by
Tenant;
or (B) solely for a
tenant or occupant
of the Commercial Center other than
Tenant, Landlord shall
require that such Operating Expenses be borne solely by
such tenant or
occupant other than
Tenant. Landlord shall not include as an
Operating Expense any costs or expenses incurred by Landlord in
connection with:
(I) any Non-Roof Maintenance Contract Roof Work (as defined in
Section 7.2(a) of
this Lease); and (II) any capital expenditures, as determined in
accordance with
generally accepted
accounting
principles,
consistently
applied, other than
Includable Capital Expenditures. For purposes of this Lease,
"Includable Capital
Expenditure" means any cost or expense constituting a capital
expenditure,
as
determined pursuant to
generally accepted accounting principles, consistently
applied, that is
incurred by Landlord in connection with its operation of the
Commercial Center for
the purpose of improving the operation and/or efficiency
of the Building or the Commercial Center or to reduce Operating
Expenses on an
overall basis.
(b) Tenant
shall pay monthly in advance on the same day as the
Base
Rent is due Tenant's
Share of Operating Expenses, as estimated by Landlord.
Tenant's Share of Operating Expenses, as estimated by Landlord to be
applicable
as of the Base Rent
Commencement
Date, is set forth in Section 1.9 of this
Lease. Landlord
shall deliver to
Tenant within 90 days after the expiration of
each calendar year a reasonably detailed statement showing Tenant's
Share of the
actual Operating
Expenses incurred during the preceding year. If Tenant's
estimated payments
under Section 4.2(b) of this Lease during the preceding year
exceed Tenant's Share as indicated on said statement, Tenant shall be credited
the amount of such overpayment against Tenant's Share of Operating
Expenses next
becoming due. If Tenant's estimated payments under Section
4.2(b) of this Lease
during said preceding
year were less than
Tenant's Share as
indicated on said
statement, Tenant
shall pay to Landlord the amount of the deficiency within 30
days after delivery by
Landlord to Tenant of said statement. At any time (but
not more than one time in any calendar year falling wholly or partially within
the Term) Landlord
may adjust the amount
of the estimated
Tenant's Share of
Operating Expenses to reflect Landlord's estimate of such expenses
for the year.
(c) As used
in Section 4.2(c) of this Lease, "Capped Operating
Expenses" means those
Operating Expenses that are, in the sole but
reasonable
opinion of Landlord, specifically under Landlord's control (being,
specifically,
real property
management fees and the Operating Expenses described in Section
4.2(a)(i) and
Section 4.2(a)(viii) of this Lease) and shall not include
any
Operating Expenses that are not, in the sole but reasonable opinion
of Landlord,
under Landlord's
control (such as, for
example, Real Property
Taxes, utility
charges, snow removal costs, and costs of insurance). As used in Section 4.2(c)
of this Lease, "Base
Costs" means Tenant's Share of Capped Operating Expenses
for calendar year 2008, as determined pursuant to final
reconciliation of actual
Capped Operating
Expenses for such
calendar year; and "Cap Amount" means, for
any calendar year, the maximum amount required to be paid by Tenant as
Tenant's
Share of Capped Operating Expenses pursuant to the
provisions of Section 4.2(c)
of this Lease. If the Base Rent Commencement Date shall occur in calendar
year
2008 on a date that is other than January 1, 2008, then and in such event,
and
for purposes of Section 4.2(c) of this Lease, "Base Costs" shall mean
Tenant's
Share of Capped
Operating Expenses
for calendar year 2008, determined as
aforesaid, assuming
the Base Rent
Commencement Date had occurred on January 1,
2008. For calendar year 2009, Tenant shall not be required to
pay that portion,
if any, of the actual
Tenant's Share of Capped Operating Expenses for such
8
<PAGE>
calendar year which
exceeds 105.00% of the Base Costs amount
(105.00% of the
Base Costs amount being the Cap Amount applicable for the calendar year 2009).
For each calendar year subsequent to the calendar year 2009, Tenant
shall not be
required to pay that
portion, if any, of
the actual Tenant's
Share of Capped
Operating Expenses
for such calendar year which exceeds 105.00% of the Cap
Amount applicable for the immediately preceding calendar year.
Notwithstanding
the foregoing,
to the extent the actual Tenant's Share of Capped Operating
Expenses for any
calendar year exceeds the Cap Amount applicable for such
calendar year (an
"Excess"), such Excess
shall be recoverable by Landlord from
Tenant to the extent the actual Tenant's Share of Capped Operating
Expenses for
any one or more calendar years is less than the Cap Amount
applicable
for any
such one or more
calendar years.
The amount of any Excess recoverable by
Landlord pursuant to
Section 4.2(c) of this
Lease shall be payable to Landlord
within 30 days
following determination from time to time, based on final
reconciliation of
actual Capped
Operating Costs for
any calendar year,
that
Landlord is entitled to recovery of any portion of such Excess.
(d) In the event that Tenant shall dispute the amounts set forth in
any
of Landlord's statements regarding actual Operating Expenses,
Tenant shall have
the right, not later
than 90 days following the receipt of any such statement,
to review Landlord's
books and records with respect to the period of time
covered by such
statement. Any such
review by Tenant shall occur upon not less
than 10 days' prior
notice to Landlord at
the place of business of Landlord's
property manager or
the actual location of
Landlord's
books and records,
if
different than the
office of Landlord's
property manager, during the normal
business hours of Landlord or such property manager. If Tenant
shall not request
a review of any such
statement in accordance with the preceding provisions of
this paragraph
within 90 days
following the receipt
of Landlord's
statement,
such statement shall be deemed to be conclusively binding upon
Tenant.
(e) Notwithstanding
anything to the
contrary set forth
elsewhere in
this Lease, Tenant
shall have no obligation to pay to Landlord pursuant to this
Lease any payments
on account of Tenant's
Share of Operating Expenses with
respect to that
period of time commencing on the 1st day of the 1st full
calendar month occurring during that portion of the
original Term commencing on
the Base Rent Commencement Date and ending on the last day of the 4th
full
calendar month occurring during that portion of the
original Term commencing on
the Base Rent
Commencement Date.
The terms and
conditions of Section
4(e) of
this Lease shall not apply to any Renewal Term becoming
effective in
accordance
with the terms and conditions of Section 15.18 of this Lease.
5.
Security Deposit. Tenant shall deposit with Landlord upon Tenant's
execution hereof the
Security Deposit set forth in Section 1.5 of this Lease as
security for Tenant's
faithful performance
of Tenant's
obligations under this
Lease. If Tenant fails to pay Base Rent or Additional Rent or
otherwise defaults
under this Lease (as defined in Section 13.1 of this Lease), Landlord may use
the Security Deposit
for the payment of any amount due Landlord or to reimburse
or compensate
Landlord for any liability, cost, expense, loss or damage
(including attorney's
fees) which Landlord may suffer or incur by reason
thereof. Tenant shall on demand pay Landlord the amount so used or
applied so as
to restore the
Security Deposit to
the amount set forth in Section 1.5 of this
Lease. Landlord
shall not be required
to keep all or any part of the Security
Deposit separate from
its general accounts.
Landlord shall, not
later than 60
days after the Expiration Date or any earlier date as of
which this Lease shall
terminate and after
Tenant has
vacated the Premises, return to Tenant that
portion of the Security Deposit not used or applied by Landlord.
No part of the
Security Deposit shall
be considered to be held in trust, to bear interest, or
to be prepayment for any monies to be paid by Tenant under this
Lease.
6. Use.
6.1. Hazardous Substances.
(a) Reportable Uses Requires Consent. The term "Hazardous
Substance" as
used in this Lease
shall mean any
product, substance,
chemical, material or
waste whose presence,
nature, quantity and/or intensity of existence,
use,
manufacture, disposal,
transportation,
spill, release or effect, either by
itself or in combination with other materials expected to be on the
Premises, is
either: (i) potentially injurious to the public health,
safety or welfare,
the
environment or the
Premises; (ii)
regulated or monitored
by any
governmental
authority; or
(iii) a basis for potential liability of Landlord to any
governmental agency or
third party under any
applicable statute or
common law
theory. Hazardous
Substance shall include, but not be limited to, hydrocarbons,
petroleum, gasoline,
crude oil or any
products or by-products thereof, and any
other hazardous or toxic substances, materials, wastes, pollutants and
the like
which are defined as such in (or regulated by) any applicable local, state or
federal law, any other federal, state, local or foreign law or ordinance
which
is presently in effect or hereafter enacted relating to environmental
matters,
any rules and regulations promulgated under any of the foregoing,
and any and
all amendments to the
foregoing. Tenant
shall not engage in any activity in or
about the Premises which constitutes a Reportable Use (as
hereinafter
defined)
of Hazardous
Substances without the
express prior written
consent of Landlord
and compliance
in a timely manner (at
Tenant's sole cost and expense) with all
Applicable
Requirements (as defined in Section 6.2 of this Lease).
"Reportable
Use" shall mean (A) the installation or use of any above or below
ground storage
tank, (B) the generation, possession, storage, use,
transportation, or disposal
of a Hazardous Substance that requires a permit from, or with
respect to which a
report, notice,
registration or business plan is required to be filed with, any
governmental
authority, and (C) the
presence in, on or about the Premises of a
Hazardous Substance
with respect to which any Applicable Requirements require
that a notice be
given to persons entering or occupying the Premises or
neighboring
properties.
Notwithstanding the
foregoing,
Tenant may,
without
Landlord's prior consent, but upon notice to Landlord and in
compliance with all
9
<PAGE>
Applicable
Requirements, use any
ordinary and customary
materials
reasonably
required to be used by Tenant in the normal course of the Permitted
Use, so long
as such use is not a
Reportable
Use and does not expose the Premises or
neighboring properties
to any meaningful
risk of contamination or damage or
expose Landlord to any
liability therefor. In addition, Landlord may (but
without any obligation
to do so) condition its consent to any Reportable Use of
any Hazardous
Substance by Tenant upon Tenant's giving Landlord such
additional
assurances as Landlord, in its reasonable discretion, deems
necessary to protect
itself, the
public, the Premises and the environment against damage,
contamination or injury and/or liability therefor, including, but not limited
to, the installation
(and, at Landlord's option, removal on or before Lease
expiration or
earlier termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements) and/or the
deposit
of an additional Security Deposit.
(b) Duty to Inform
Landlord. If Tenant
knows, or has reasonable cause
to believe,
that a Hazardous Substance is located in, under or about the
Premises or the Building, Tenant shall immediately give
Landlord written notice
thereof, together with
a copy of any statement, report, notice, registration,
application, permit,
business plan, license, claim, action, or proceeding given
to, or received from, any governmental authority or private party
concerning the
presence, spill,
release, discharge of, or exposure to, such Hazardous
Substance. Tenant
shall not cause or permit any Hazardous Substance to be
spilled or released
in, on, under or about
the Premises
(including,
without
limitation, through the plumbing or sanitary sewer system).
(c) Indemnification.
Tenant shall
indemnify,
defend (with counsel
satisfactory to
Landlord),
protect and hold harmless Landlord, Landlord's
affiliates, Lenders (herein defined), and the officers, directors,
shareholders,
partners, employees,
managers, independent contractors,
attorneys and
agents
(including, without
limitation, any
property manager employed by Landlord from
time to time with respect to the operation by Landlord of the
Property) of the
foregoing
(collectively, the
"Landlord Entities")
and the Premises,
harmless
from and against any and all damages, liabilities, judgments, costs, claims,
liens, expenses, penalties, loss of permits and attorneys' and
consultants' fees
arising out of or involving any Hazardous Substance brought onto
the Premises by
or for Tenant or by any of Tenant's employees, agents, contractors or
invitees.
Tenant's obligations
under Section 6.1(c) of this Lease shall include, but not
be limited to, the effects of any contamination or injury to
person, property or
the environment
created or suffered by
Tenant, and the cost
of investigation
(including consultants' and attorneys' fees and testing), removal,
remediation,
restoration and/or abatement thereof, or of any contamination
therein involved.
Tenant's obligations
under Section 6.1(c) of this Lease shall survive the
expiration or earlier termination of this Lease.
(d) Agreement by Landlord. Nothing set forth in Section 6 of this
Lease
shall be construed so as to obligate Tenant to be responsible for
the removal or
remediation of any Hazardous Substances brought to, used, handled,
manufactured,
generated, or disposed
of at, on or about the Property at any time on or before
the Date of Lease by (i) Landlord or any predecessor of Landlord as
owner of the
Property, or (ii) any person or party that use or occupied the
Premises prior to
the Date of Lease
except to the extent,
if any, Tenant or any of the agents,
employees or
contractors
of Tenant shall in any way exacerbate any such
pre-existing Hazardous Substances.
6.2. Compliance with Requirements. Tenant shall, at Tenant's sole
cost
and
expense, fully,
diligently
and in a timely
manner, comply with all
"Applicable
Requirements," which
term is used in this
Lease to mean all
laws, rules, regulations, ordinances, directives, covenants,
easements and
restrictions of record, permits, the requirements of any applicable
fire
insurance
underwriter or
rating bureau, and the recommendations of
Landlord's engineers
and/or consultants, relating in any manner to the
Premises (including,
but not limited to, matters pertaining to (a)
industrial hygiene,
(b) environmental conditions on, in, under or about the
Premises, including
soil and groundwater conditions, and (c) the use,
generation, manufacture, production, installation, maintenance, removal,
transportation,
storage, spill or release of any Hazardous Substance), now
in
effect or which may hereafter come into effect. Tenant shall, within 5
days
after receipt of Landlord's written request, provide Landlord with
copies of all documents and information evidencing Tenant's
compliance with
any
Applicable
Requirements
and shall immediately upon receipt notify
Landlord in
writing (with copies of any documents involved) of any
threatened or actual claim, notice, citation, warning, complaint or report
pertaining to or involving failure by Tenant or the Premises to
comply with
any
Applicable Requirements. At Landlord's sole cost and
expense, Landlord
shall fully,
diligently and in a
timely manner comply with all Applicable
Requirements governing to the operation of the Property by
Landlord.
6.3. Inspection;
Compliance with Law.
Landlord and the holders of any
mortgages, deeds of
trust or ground leases on the Premises (collectively,
"Lenders") shall
have the right to enter the Premises at any time and
without any obligation
to give any advance
notice of any kind in the case
of
an Emergency, and
otherwise during
normal business hours of Tenant,
after giving not less than 24 hours' oral or written notice to
Tenant, for
the
purposes of inspecting
the condition of the Premises and for verifying
compliance by Tenant
with this Lease and all Applicable Requirements.
Landlord shall
be entitled to employ experts and/or consultants in
connection
therewith to
advise Landlord with respect to Tenant's
installation,
operation, use, monitoring, maintenance, or removal of any
Hazardous Substance on
or from the Premises.
The cost and expenses of any
such
inspections
shall be paid by the party requesting same unless a
violation of
Applicable
Requirements
exists or is imminent or the
inspection is
requested or ordered by a governmental authority. In such
case, Tenant shall upon request reimburse Landlord or Landlord's
Lender, as
the
case may be, for the costs and expenses of such inspections.
10
<PAGE>
7.
Maintenance, Repairs, Trade Fixtures and Alterations.
7.1. Tenant's Obligations.
(a) Subject to the
provisions of Section
7.2 of this Lease
(entitled
"Landlord's
Obligations"), Section
9 of this Lease (entitled "Damage or
Destruction") and
Section 14 of this Lease (entitled "Condemnation"), Tenant
shall, at Tenant's sole cost and expense and at all times, keep the
Premises and
every part thereof in
good order,
condition and repair (whether or not such
portion of the Premises requiring repair, or the means of repairing the
same,
are reasonable or
readily accessible to
Tenant and whether or not the need for
such repairs occurs as
a result of Tenant's use, any prior use, the elements or
the age of such
portion of the Premises) including, without limiting the
generality of the foregoing, all equipment or facilities
specifically
serving
the Premises,
such as plumbing, heating, air conditioning, ventilating,
electrical, lighting
facilities,
boilers, fired or unfired pressure
vessels,
fire hose connectors if within the Premises, fixtures, interior walls,
interior
surfaces of exterior walls, ceilings, floors, windows, doors, plate glass,
and
skylights (if any),
but excluding
any items which are
the responsibility
of
Landlord pursuant to Section 7.2 of this Lease. Tenant hereby acknowledges
that
the heating,
ventilating and/or air
conditioning
system serving the
Premises
consists of a
heating, ventilating and/or air conditioning system and/or
heating, ventilating
and/or air conditioning units (which may be located on the
rooftop of the
Building) that serve
the Premises and no other portions of the
Building. Tenant's
obligations
pursuant to Section 7.1 of this Lease shall
include restorations, replacements or renewals, as and when
necessary during the
Term, to keep the Premises, all improvements thereon or a part
thereof, and all
machinery, equipment
and systems
being a part thereof
or serving the Premises
(including, without limitation, the heating, ventilating and/or air
conditioning
system and/or the heating, ventilating and/or air conditioning
units serving the
Premises (whether
located within the
Building or on the roof of the Building))
in good order, condition and state of repair.
(b) At all times during the Term on and after the Base Rent
Commencement Date
Landlord shall cause to be effective a service contract (the
"HVAC Service
Contract")
entered into between Landlord and an independent
contractor selected
by Landlord
covering the repair and maintenance of the
heating,
ventilating and/or
air conditioning system and/or the heating,
ventilating and/or air conditioning units serving the Premises.
The fees, costs
and expenses
paid by Landlord to
the contractor
pursuant to the HVAC
Service
Contract shall be paid by Landlord; provided, however, Tenant shall reimburse
Landlord for all of such fees, costs and expenses from time to time during the
Term not later than 30 days after written demand shall be made therefor by
Landlord of Tenant.
Any written demand for
reimbursement
made by Landlord
of
Tenant in accordance with the terms and conditions of the preceding
sentence of
this paragraph
shall be accompanied by copies of invoices or other
evidence
satisfactory to Tenant
showing Landlord to have incurred the
fees, costs and
expenses in
question. At all times during the Term Landlord shall employ
commercially
reasonable means to ensure compliance by the contractor under
the
HVAC Service Contract with its obligations under the HVAC Service
Contract. At
the option of Landlord, Tenant shall pay to Landlord, as
Additional Rent at the
times that monthly
installments of Base
Rent are payable by Tenant to Landlord
pursuant to this Lease, a monthly sum estimated by Landlord, in its sole but
reasonable judgment, to cover the fees, costs and expenses likely
to be incurred
by Landlord with respect to the services provided pursuant to the HVAC Service
Contract. If Landlord
shall collect monthly
estimated amounts from Tenant in
accordance with the
terms and conditions
of the preceding sentence of this
paragraph, then and in
such event,
from time to time
during the Term (but not
less than annually) Landlord shall provide to Tenant a written
reconciliation of
the actual fees,
costs and expenses incurred by Landlord in such regard and
Tenant shall pay to Landlord any amounts due and owing to Landlord
for the fees,
costs and expenses
incurred by Landlord for such services that are in excess of
the estimated
monthly amounts theretofore paid by Tenant to Landlord with
respect to the time periods in question. Tenant hereby acknowledges that the
terms of the HVAC
Service Contract
shall not cover the replacement of the
heating, ventilating
and/or air conditioning system and/or any of the
heating,
ventilating and/or
air conditioning units serving the Premises in their
entireties or any replacement of major components (such as
compressors) thereof.
(c) For purposes of this Lease, "Janitorial Services" means
janitorial
cleaning services
with respect to the interior of the Premises on weekdays
(other than federal,
state or local holidays) meeting the requirements for such
janitorial services adopted by Landlord from time to time with
respect to spaces
within the Building demised to third party tenants. For purposes of this Lease,
"Janitorial
Services Expenses"
means all costs incurred by Landlord in
connection with the
provision of Janitorial Services to the Premises
together
with a reasonable
management fee to Landlord therefor. At all times during the
Term on and after
the Base Rent Commencement Date Landlord shall provide
Janitorial Services to
the Premises. The
Janitorial Services Expenses shall be
paid by Landlord;
provided, however, Tenant shall reimburse Landlord for all of
such fees, costs and
expenses from time to
time during the Term not later than
30 days after written
demand shall be made therefor by Landlord of Tenant. Any
written demand for
reimbursement made by
Landlord of Tenant in accordance with
the terms and conditions of the preceding sentence of this paragraph shall be
accompanied by copies
of invoices
or other evidence satisfactory to Tenant
showing Landlord to
have incurred the
Janitorial
Services Expenses. At the
option of Landlord,
Tenant shall pay to
Landlord, as
Additional
Rent at the
times that monthly
installments of Base
Rent are payable by Tenant to Landlord
pursuant to this Lease, a monthly sum estimated by Landlord, in its sole but
reasonable judgment,
to cover the
Janitorial Services
Expenses. If Landlord
shall collect monthly estimated amounts from Tenant in accordance
with the terms
and conditions of the
preceding sentence of
this paragraph,
then and in such
event, from time to
time during the Term (but not less than annually) Landlord
shall provide
to Tenant a written reconciliation of the actual Janitorial
Services Expenses
incurred by Landlord
in such regard and Tenant shall pay to
Landlord any amounts due and owing to Landlord for Janitorial
Services Expenses
11
<PAGE>
incurred by
Landlord that are in excess of the estimated monthly amounts
theretofore paid by
Tenant to Landlord
with respect to the time periods in
question.
Notwithstanding
anything to the
contrary set forth elsewhere in
Section 7.1(c) of this
Lease, Tenant
shall have the right,
at Tenant's
sole
option, to be
exercised by giving not less than 45 days' advance notice
thereof
to Landlord, to
perform all Janitorial
Services for itself,
at Tenant's sole
cost and expense,
by means of the
employment
of third party
contractors
or
otherwise, whereupon on and as of that date which is the 46th day
after the date
of any such
notice given by Tenant to Landlord, Landlord shall have no
obligation pursuant
to this Lease to
provide any such
Janitorial Services
to
Tenant. In the event that in accordance with the immediately
preceding sentence
of this paragraph Tenant shall elect to provide Janitorial Services for itself
and Landlord
shall no longer
have any obligation pursuant to this Lease to
provide any
Janitorial
Services to Tenant,
then and in such
event, from and
after that date which is the 46th day after the date of such
notice from Tenant
to Landlord, Tenant
shall cause Janitorial Services to be provided with respect
to the interior
of the Premises on a regular basis so that interior of the
Premises shall be at all times clean, neat and free of debris.
7.2. Landlord's Obligations.
(a) Subject to the
provisions
of Section 6 of this Lease
(entitled
"Use"), Section 7.1 of this Lease (entitled "Tenant's Obligations"), Section 9
of this Lease (entitled "Damage or Destruction") and Section 14 of this Lease
(entitled
"Condemnation"),
Landlord, at
its expense and not subject to
reimbursement pursuant
to Section
4.2 of this
Lease, (i) shall keep in good
order, condition and
repair the foundations
and exterior walls of the Building
and utility systems
outside the Building,
and (ii) shall perform
all Non-Roof
Maintenance Contract
Roof Work (herein defined) becoming necessary from time to
time during the Term.
Subject to reimbursement in accordance with the terms and
conditions of Section 4.2 of this Lease, Landlord shall keep the
Common Areas in
good order,
condition and repair. For purposes of this Lease, "Non-Roof
Maintenance Contract
Roof Work" means any repair or replacement of the roof of
the Building (including, without limitation, any
replacement of the entirety of
the roof of the Building) becoming necessary to be made with
respect to the roof
of the Building from
time to time during the Term that is not covered under the
terms and conditions
of the Roof
Maintenance
Contract (as defined
in Section
7.2(b) of this Lease).
(b) At all times during the Term on and after the Base Rent
Commencement Date
Landlord shall cause to be effective a service contract
covering the
repair and
maintenance
of the roof of the
Building (the "Roof
Maintenance
Contract") entered
into between Landlord and an independent
contractor selected by Landlord. The terms, conditions, and scope
of coverage of
the Roof Maintenance
Contract shall be determined by Landlord,
in Landlord's
sole but reasonable
judgment. The fees,
costs and expenses paid by Landlord to
the contractor
pursuant to the Roof Maintenance Contract shall be paid by
Landlord subject to
reimbursement
by Tenant in
accordance with Section 4.2 of
this Lease as an Operating Expense. At all times during the Term
Landlord shall
employ commercially
reasonable
means to ensure
compliance by the
contractor
under the Roof Maintenance Contract with its obligations under the Roof
Maintenance Contract.
Landlord and Tenant hereby agree any repair, replacement
or maintenance
that may at any time
during the Term be
required to be made to
the roof of the Building in accordance with the terms and conditions of this
Lease, other than if
due to the willful act or negligence of Tenant or any of
the agents, employees
or contractors or Tenant, shall be performed either (i)
pursuant to the terms and conditions of the Roof Maintenance
Contract or (ii) by
Landlord as work being a part of the Non-Roof Maintenance Contract
Roof Work.
7.3. Alterations;
Surrender/Restoration.
Tenant shall not make nor
cause to be made any alterations, installations in, on, under or
about the
Premises without first having obtained the prior written consent
thereto of
Landlord (which prior written consent of Landlord, except has hereinafter
provided, shall not be
unreasonably
withheld, conditioned or delayed by
Landlord); provided,
however, that Landlord shall have the right, in
Landlord's sole and
absolute discretion,
to withhold
its prior written
consent if Landlord,
in Landlord's sole but
reasonable
judgment, shall
determine that any of the alterations or installations proposed by Tenant
to
be made in, on, under or about the Premises shall adversely affect the
structural integrity
of the Building or any
of the heating,
ventilating,
air
conditioning,
plumbing, electrical, fire and life safety, or other
mechanical systems
serving the Property. Tenant shall surrender the
Premises by the end of the last day of the Term or any earlier
termination
date
of this Lease,
(a) clean and free of
debris, (b) in good
operating
order, condition
and state of repair, and (c) otherwise in the same
condition as delivered by Landlord to Tenant on the Base Rent
Commencement
Date
or the date of any
earlier possession
of the Premises by Tenant in
accordance with the terms and conditions of this Lease, reasonable
wear and
tear
excepted. In
furtherance
of the foregoing and
without limiting
the
generality thereof,
on or before the last
day of the Term or any
earlier
termination date of
this Lease, at Tenant's sole cost and expense, Tenant
shall (i) remove from the Premises all of Tenant's
personal property and
trade fixtures, (ii)
except to the extent specified to the contrary in any
written agreement
made between Landlord and Tenant, remove from the
Premises all alterations and improvements to the Premises,
if any, made by
Tenant, (iii) remove from the Premises all floor bolts, patch all
floors of
the
Premises, and cause all lights serving the Premises to be in good
operating condition, (iv) deliver to Landlord all keys to the
Premises then
in the possession of Tenant,
and (v) take all
actions necessary to
ensure
that
the Premises shall be surrendered by Tenant to Landlord in a
condition
consistent in all
respects with the
requirements
set forth in Exhibit
C
attached to and hereby made a part of this Lease. In the event that
for any
reason whatsoever
Tenant shall fail to remove on or before the last day of
the
Term or any earlier
termination date of this Lease all of the personal
property, trade
fixtures and
alterations and
improvements of Tenant, as
required in
accordance
with the terms and
conditions
of the preceding
provisions of Section 7.3 of this Lease, then and in such event, as of
the
1st
day after the last day of the Term or any earlier termination date of
this
Lease, all such
personal property,
trade fixtures,
alterations and
improvements of
Tenant shall be deemed to have been abandoned in all
12
<PAGE>
respects by Tenant and
Landlord shall have
the right, in
Landlord's sole
and
absolute discretion, to retain any or all of the same
as Landlord's
property or dispose of any or all of the same, at Tenant's sole cost and
expense, in any manner deemed fit or appropriate by Landlord, in
Landlord's
sole
and absolute
discretion.
In the event that in
accordance
with the
terms and conditions
of the preceding
sentence Landlord
shall dispose of
any
or all of the personal property, trade fixtures, alterations or
improvements of Tenant
that shall be deemed to have been so abandoned by
Tenant, then and in such event, not later than 10 days after
written demand
shall be made therefor
by Landlord on Tenant, Tenant shall reimburse
Landlord for all
reasonable
costs and expenses incurred by Landlord in
connection with such
disposal, together with interest thereon at the
default rate specified
in Section
13.3 of this Lease
from the effective
date
of such abandonment
by Tenant until the
date such costs and expenses
shall be reimbursed by
Tenant to Landlord in full. Tenant has heretofore
advised Landlord
that in connection with its use and operation of the
Premises in accordance with the terms and conditions of this Lease,
Tenant
wishes to install and
operate at and
within the Premises a controlled
access system (the "Controlled Access System"). Subject to the terms and
conditions
of this Lease, Tenant shall have the right to install and
operate the Controlled Access System at and within the Premises at
any time
or
times during the Term; provided, however, that (A) the Controlled
Access
System is installed
and operated by Tenant, at Tenant's sole cost and
expense, and in
accordance with all
Applicable
Requirements, and (B)
at
Tenant's sole cost and
expense, the Controlled Access System shall be
removed from the Premises by Tenant on or before the Expiration
Date or any
earlier date as of which this Lease shall expire and the Premises
shall be
restored to its condition as existing prior to the installation by Tenant
of
the Controlled Access System.
8. Insurance;
Indemnity.
8.1. Tenant's
Insurance.
At its sole cost and
expense, Tenant
shall
maintain in full force and effect during the Term the following insurance
coverages insuring
against claims which may arise from or in
connection
with
Tenant's operation and
use of the Premises:
(a) Commercial
general
liability insurance with minimum limits of $1,000,000.00 per
occurrence and
$3,000,000.00 general
aggregate for bodily
injury, personal injury and
property damage; (b) Workers' compensation insurance with statutory
limits
and
employer's liability with a $1,000,000.00 per accident limit for
bodily
injury or disease; (c)
Automobile liability
insurance covering all owned,
non-owned and hired
vehicles of Tenant with a $1,000,000.00 per accident
limit for bodily injury and property damage; (c) Property insurance
against
all
risks of loss to any tenant improvements or betterments and business
personal property on a
full replacement
cost basis with no
co-insurance
penalty provision; and
(e) Business interruption insurance with a limit of
liability representing
loss of at least
approximately 6 months of income.
Tenant shall deliver to Landlord certificates of all insurance
reflecting
evidence of required
coverages prior to
initial occupancy
and annually
thereafter. If, in the
opinion of Landlord's insurance adviser, the amount
or
scope of such coverage is deemed inadequate at any time during the
Term,
Tenant shall increase such coverage to such reasonable amounts or scope as
Landlord's adviser deems adequate. All insurance required under
Section 8.1
of
this Lease shall: (i) be primary and non-contributory; (ii) provide for
severability of
interests;
(iii) be issued by
insurers licensed to do
business in the state in which the Premises are located and which
are rated
A:VII or better by Best's Key Rating Guide; (iv) be endorsed to include
Landlord, the property
manager employed by Landlord in connection with the
Property, and such
other persons or
entities as Landlord may from time to
time
designate,
as additional insureds (commercial general liability
insurance only);
and (v) be
endorsed to provide at least 30 days'
prior
notification of
cancellation
or material change in coverage to said
additional insureds.
8.2. Landlord's Insurance. At all times during the Term
Landlord shall
maintain in full force
and effect all risk hazard and property insurance
and
commercial
general liability insurance covering the Property. In
addition, Landlord
shall have the right (but not the obligation) to
maintain in effect at any time or times during the Term with
respect to the
Property such
other forms of insurance coverage (including, without
limitation, as to
earthquakes and floods) as Landlord shall deem necessary
and
appropriate. The
amount and scope of coverage of Landlord's insurance
shall be determined by
Landlord from time to
time in its sole
discretion
and
shall be subject to such deductible amounts as Landlord may elect.
Except with
respect to the insurance coverages described in the 1st
sentence of Section
8.2 of this Lease,
Landlord shall have the right to
reduce or terminate any insurance or coverage.
8.3. Waiver of Subrogation. To the extent permitted by law and
without
affecting the
coverage provided by insurance required to be maintained
hereunder, Landlord
and Tenant each waive any right to recover against the
other on account of any and all claims Landlord or Tenant may have
against
the other with respect
to property insurance
actually carried or
required
to
be carried hereunder,
to the extent of the
proceeds realized from such
insurance coverage.
On or before the Base
Rent Commencement
Date, Tenant
shall delivery to Landlord evidence that Tenant has given written
notice of
such
waiver by Tenant to the insurance carriers providing coverage
required
to
be provided by Tenant pursuant to this Lease.
8.4. Indemnity.
(a) Tenant shall indemnify, defend (with counsel reasonably
acceptable
to Landlord), protect
and hold harmless the Landlord Entities from and against
all losses, liabilities, claims, damages, costs and/or expenses
(including court
costs and reasonable
attorney's fees)
incurred by reason of: (i) any damage to
any property (including, but not limited to, property of any
Landlord Entity) or
death or injury to any person occurring in or about the
Premises, the
Building
or the Commercial
Center to the
extent that such injury or damage shall be
caused by or arise from any act, neglect, fault or omission by or
of Tenant, its
agents, servants,
employees,
invitees, or visitors; (ii) the conduct or
management of any work
or anything
whatsoever
done by Tenant on or
about the
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Premises or from transactions of Tenant concerning the Premises;
(iii) Tenant's
failure to comply with any and all governmental laws, ordinances
and regulations
applicable to the condition or use of the Premises or its
occupancy; or
(iv)any
breach or default on the part of Tenant in the performance of any covenant or
agreement on the part of Tenant to be performed pursuant to this
Lease.
(b) Landlord shall indemnify, defend, protect and hold harmless
Tenant
from and against all losses, liabilities, claims, damages, costs
and/or expenses
(including court costs
and reasonable
attorney's fees)
incurred by reason of:
(i) any damage to any property or death or injury to any person
occurring on the
Property to the extent
that such injury or
damage shall be caused
by or arise
from any act, neglect, fault or omission by or of Landlord or any
of the agents,
employees or contractors of Landlord; (ii) any damage to any property or
death
or injury to any person occurring within the Premises to the extent that
such
injury or damage shall
be caused by or arise
from any act, neglect,
fault or
omission constituting
negligence on the part
of Landlord or any of the agents,
employees or contractors of Landlord; or (iii) any breach or
default on the part
of Landlord in the
performance of any
covenant or agreement on the part of
Landlord to be performed pursuant to this Lease.
(c) The terms and conditions of Section 8.4 of this Lease shall
survive
the Expiration
Date or the date of
any earlier
termination of this Lease with
respect to all claims or liabilities accruing pursuant to Section 8.4 of
this
Lease prior to such Expiration Date or earlier date of
termination.
8.5. Exemption of
Landlord from
Liability.
Except if occurring as
a
result of the
negligence or
willful misconduct of Landlord or any of
Landlord Entities,
to the extent
permitted by
Applicable
Requirements,
neither Landlord, any Landlord Entities nor any of their respective
agents,
employees or
contractors shall be
liable for and Tenant waives any claims
against Landlord and Landlord Entities for, injury or damage to
the person
or
the property
of Tenant,
Tenant's employees, contractors, invitees,
customers or any other person in or about the Premises, the
Building or the
Commercial Center from any cause whatsoever, including, but not
limited to,
damage or injury which is caused by or results from (a) fire, steam,
electricity, gas, water or rain, or from the breakage, leakage,
obstruction
or
other defects of pipes, fire sprinklers, wires, appliances, plumbing,
air
conditioning or lighting fixtures or (b) the condition of the
Premises,
other portions of the Building, or the Commercial Center.
Neither Landlord
nor
any Landlord Entity
shall be liable for
any damages arising
from any
act
or neglect of any
other tenant of
Landlord nor from the failure by
Landlord to enforce
the provisions
of any other lease in
the Commercial
Center.
Notwithstanding the Landlord's negligence, gross negligence, or
breach of this Lease,
Landlord shall under no circumstances be liable for:
(i)
any injury
to Tenant's business or any loss of income or profit
therefrom; (ii) any
indirect,
consequential or punitive damages; or (iii)
any
damage to property
or injury to persons
arising from any act of God
(such as earthquakes, hurricanes, floods, etc.).
9.
Damage or Destruction.
Tenant shall give Landlord immediate notice of
any damage to the
Premises. Subject to the provisions of Section 9 of this
Lease, if the Premises
or the Building shall
be damaged to such an extent that
there is substantial
interference for a
period exceeding 180
consecutive days
with the conduct by Tenant of its business at the Premises,
Tenant, at any
time
prior to commencement of repair of the Building and following 10
days' notice to
Landlord, may
terminate this Lease effective 30 days after
delivery of such
notice to Landlord.
Such termination shall not excuse the performance by Tenant
of those covenants which under the terms hereof survive
termination. Rent
shall
be abated in
proportion to the
degree of interference
during the period
that
there is such substantial interference with the conduct of
Tenant's business at
the Premises.
Abatement of rent and Tenant's right of termination pursuant to
this provision shall
be Tenant's sole remedy for failure of Landlord to keep in
good order, condition
and repair the
foundations
and exterior walls of the
Building, the roof of the Building, utility systems outside the
Building and the
Common Areas. Tenant's
termination
rights under Section 9
of this Lease shall
not apply if the damage to the Premises or the Building is the
result of any act
or omission
of Tenant or of any of Tenant's agents, employees, customers,
invitees or contractors (collectively, "Tenant Acts"). Any damage
resulting from
a Tenant Act shall be promptly repaired by Tenant. Landlord, at its option, may
at Tenant's
expense repair any damage caused by Tenant Acts. Tenant shall
continue to pay all
Rent and other sums
due hereunder
and shall be liable
to
Landlord for all damages that Landlord may sustain resulting from a Tenant Act.
Notwithstanding the foregoing: (a) Landlord shall have the right,
at Landlord's
sole option, to be
exercised by giving
notice thereof to Tenant on or before
that date which is 60 days after the occurrence of any damage to the Building
due to fire or other
casualty, to terminate
this Lease as of the
date of such
damage if Landlord shall determine, in Landlord's sole but reasonable
judgment,
that all or
substantially all of
the Building
shall have been damaged as a
result of such fire or
other casualty;
and (b) Except if the holder of any
Mortgage (as defined
in Section 15.11 of
this Lease) shall
require that the
proceeds of insurance be applied to the repayment of the
indebtedness secured by
the Mortgage rather than to the restoration of the Property,
Landlord shall use
all insurance proceeds
received by Landlord
as a result of the occurrence of a
fire or other casualty
with respect to the Building for the restoration of the
Building in a timely and diligent manner. Nothing set forth in the
preceding
terms and conditions
of Section 9 of this
Lease shall be construed to obligate
Landlord to utilize any funds other than insurance proceeds
received by Landlord
as a result of the
occurrence of a fire
or other casualty with
respect to the
Building in connection
with any restoration of the Building undertaken by
Landlord.
10.
Real Property Taxes.
(a) Landlord shall pay
the Real Property
Taxes due and payable during
the Term and, except
as otherwise
provided in the
succeeding
provisions
of
Section 10 of this Lease, any such amount shall be included
in the calculation
of Operating Expenses
in accordance
with the provisions of Section 4 of
this
Lease.
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<PAGE>
(b) As used herein,
the term "Real Property Taxes" is any form of tax
or assessment,
general, special,
ordinary or extraordinary, imposed or levied
upon: (i) the tax parcel in which the Building is located (the "Tax
Parcel"), it
being acknowledged
that the Tax Parcel
may include other
buildings; (ii)
any
interest in the Tax Parcel; and/or (iii) the right to Rent or
other income from
the Tax Parcel. Real
Property Taxes include (A) any license fee,
commercial
rental tax, excise tax, improvement bond or bonds,
levy or tax, (B) any
tax or
charge which
replaces or is in
addition to any of
such abovedescribed
"Real
Property Taxes", and (C) any fees, expenses or costs (including
attorney's fees,
expert fees and the like) incurred by Landlord in protesting
or contesting any
assessments levied or any tax rate. "Real Property Taxes" shall
also include any
increase resulting
from a change in the ownership of the Tax Parcel, the
execution of this Lease or any modification, amendment or transfer
thereof. Real
Property Taxes for tax years commencing prior to, or extending
beyond, the Term
shall be prorated to coincide with the corresponding Base Rent
Commencement Date
or Expiration Date.
Real Property Taxes shall not include any tax attributable
to improvements placed on the Tax Parcel by other tenants or by
Landlord for the
exclusive enjoyment of such other tenants.
(c) Notwithstanding anything to the contrary set forth in Section
10 of
this Lease, Tenant
shall, however, pay to Landlord at the time Real
Property
Taxes are payable under Section 10 of this Lease,
the entirety of any
increase
in Real Property Taxes if assessed by reason of improvements placed on the Tax
Parcel by Tenant or at Tenant's request. Tenant shall pay prior to
delinquency
all taxes assessed
against and levied
upon Tenant's
improvements,
fixtures,
furnishings, equipment
and all personal property of Tenant contained in the
Premises or stored within the Commercial Center.
11.
Utilities.
Tenant shall pay
directly for all
utilities and
services
supplied to the Premises, including, but not limited to,
electricity, telephone,
security, gas and cleaning of the Premises, together with any taxes
thereon.
12.
Assignment and Subletting.
(a) Tenant
