Virginia-Herndon-1110 Herndon Parkway Lease - Sovran Limited Co. and LifeMinders.com Inc.
OFFICE BUILDING LEASE AGREEMENT
DEFINITIONS AND BASIC LEASE INFORMATION
LEASE DATE: June 11, 1999
TENANT: Lifeminders.com inc.
1110 Herndon Parkway
(Third Floor)
Herndon, VA 20170
PHONE:
LANDLORD: SOVRAN LIMITED COMPANY
LANDLORD ADDRESS: c/o The Mark Winkler Company
4900 Seminary Road, Suite 900
Alexandria, VA 22312
CONTACT: Donald L. Schubring
TELEPHONE: (703)758-2299
PREMISES: The third floor of building No. 4 also known as
1110 Herndon Parkway, Herndon, Fairfax County,
Virginia ("Building") constituting a part of the
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shopping center known as Herndon Parkway Center
("Shopping Center"). The premises are outlined on
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the plan attached to the Lease as Exhibit A, and
shall be deemed to contain 12,954 square feet of
Rentable Area.
TENANT IMPROVEMENTS: Landlord will pay up to fifteen dollars ($15.00)
per RSF ("Tenant Improvement Allowance") expendable
for the costs of the design and construction of the
Tenant Improvements to be carried out by Tenant's
contractor according to a mutually agreed upon
space plan within two months after the execution of
the Lease Agreement.
A rough drawing of a space plan for the Premises
has been prepared by Tenant's architect and has
been presented to, and met the approval of,
Landlord (Appendix A). The final space plan for the
Premises, incorporating the details and Landlord's
suggestions shall be prepared by Tenant and
presented to Landlord within two (2) weeks
following the execution of the Lease Agreement and
its delivery to Landlord. The parties agree
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to negotiate in good faith to resolve their differences
of opinion, if any, concerning the space plan and will
agree to any changes which might be required by the
appropriate authorities in order to receive the final
approval of a space plan.
The build out of the Premises shall start shortly after
Tenant obtained the approval of the appropriate
authorities of the changes required. All cost of design
and construction of Tenant Improvements in excess of the
Tenant Improvement Allowance shall be paid by Tenant.
LANDLORD'S WORK Landlord shall, with reasonable notice, have access to
the Premises after the Lease Commencement Date and when
appropriate for the purposes of installing new air
conditioning units and repairing and rearranging the duct
works. Landlord shall coordinate with Tenant's
construction manager times which will not interfere with
on-going construction. Landlord shall complete the
installment of air conditioning units and the repair of
duct works within forty five (45) days after the
execution of the Lease Agreement. Tenant shall receive
day to day rent abatement if HVAC does not function after
the expiration of sixty (60) days from the execution of
the Lease Agreement.
OCCUPANCY/COMMENCEMENT The Lease shall commence upon the execution of the
TERM: Lease Agreement and shall end five (5) years and two (2)
months after the execution of the Lease Agreement.
RENT ABATEMENT: Landlord shall abate first two (2) months' rent.
RENT: Rent per year, payable in monthly installments, as
follows:
Annual Basic Monthly
Year Rental Rate Installment
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First year $226,695.00 $18,891.25
ESCALATION: 3% Annually after the first year.
PARKING: Tenant shall be entitled to fifty five (55) parking
spaces at the location
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designated by Landlord. Landlord shall have no
obligation to police the use of such spaces.
TENANT'S PROPORTIONATE 28.10% which is the percentage obtained by dividing
SHARE OF OPERATING EXPENSES: (i) the 12,954 square feet of Rentable Area in the
Premises by (ii) the total 46,059 rentable square
feet contained in all of the buildings located in
the Shopping Center.
TENANT'S PROPORTIONATE 49.6% which is the percentage obtained by dividing
SHARE OF BUILDING EXPENSES: (i) the 12,954 square feet of Rentable area in the
Premises by (ii) the total 26,107 square feet of
Rentable Area in the office portion of the
Building.
PERMITTED USE: General office use and no other purpose. The
premises may not be used by a bank or financial
institution.
SECURITY DEPOSIT: One hundred thousand Dollars ($100,000.00) in the
form of letter of credit.
APPURTENANT FACILITIES: The parking areas, landscaping, sidewalks, and
other facilities now or hereafter located on the
Land (other than the Building) which are used in
connection with the operation of the Building.
BROKER: Trammel Crow Real Estate Services, Inc. (TCRES)
represented the interests of the Tenant throughout
this transaction and the Mark Winkler Company
represented Landlord throughout this transaction.
The brokers' fee shall be paid by Landlord under
separate agreement.
THE FOREGOING LEASE INFORMATION IS INCORPORATED INTO AND MADE A PART OF THE
LEASE, BUT DOES NOT CONSTITUTE THE ENTIRE LEASE. IN THE EVENT OF ANY CONFLICT
BETWEEN THE FOREGOING LEASE INFORMATION AND THE TERMS OF THE OFFICE BUILDING
LEASE AGREEMENT WHICH FOLLOWS, THE TERM OF THE OFFICE BUILDING LEASE AGREEMENT
WILL GOVERN. TENANT ACKNOWLEDGES THAT IT HAS READ ALL THE PROVISIONS CONTAINED
IN THE ENTIRE LEASE AND ALL EXHIBITS WHICH ARE A PART THEREOF AND AGREES THAT
THIS LEASE, INCLUDING THE BASIC LEASE INFORMATION AND ALL EXHIBITS, REFLECTS
THE ENTIRE UNDERSTANDING AND REASONABLE EXPECTATIONS OF LANDLORD AND TENANT
REGARDING THE PREMISES. TENANT ALSO ACKNOWLEDGES THAT IT HAS THE OPPORTUNITY TO
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REVIEW THIS LEASE PRIOR TO EXECUTION WITH LEGAL COUNSEL AND SUCH OTHER ADVISORS
AS TENANT DEEMS APPROPRIATE. IN THE EVENT ANY CONFLICT EXISTS BETWEEN ANY BASIC
LEASE INFORMATION AND THE LEASE, THEN THE LEASE SHALL CONTROL.
SOVRAN LIMITED COMPANY LIFEMINDERS.COM INC.
LANDLORD TENANT
By: /s/ Mahmoud Katirai By:[SIGNATURE APPEARS HERE]
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Mahmoud Katirai Its: VP & CFO
Its: President
EXHIBITS:
Exhibit "A": Outline of Premises
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Exhibit "B": Building Rules and Regulations
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Exhibit "C": Form of Letter of Credit
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Exhibit "D": Option of Review
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TABLE OF CONTENTS
Page
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1. DEFINITIONS AND BASIC PROVISIONS
a. Basic Lease Information.................................... 1
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b. Rentable Area.............................................. 1
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c. Service Areas.............................................. 1
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d. Building-Shared Areas...................................... 1
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e. Floor-Shared Areas......................................... 1
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f. Stipulations as to Area.................................... 1
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2. LEASE GRANT........................................................... 1
3. TERM.................................................................. 2
4. RENT.................................................................. 2
a. Payment.................................................... 2
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b. Operating and Building Expense Escalator................... 3
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c. Operating Expenses......................................... 3
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d. Building Expenses.......................................... 5
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e. Adjustment................................................. 6
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f. Gross-Up................................................... 7
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g. Direct Taxes............................................... 7
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h. Survivability of Obligations............................... 7
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5. DELINQUENT PAYMENT; LATE CHARGES...................................... 7
6. SECURITY DEPOSIT...................................................... 8
7. LANDLORD'S OBLIGATIONS................................................ 8
a. Services................................................... 9
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b. Utility Charges............................................ 9
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c. Discontinuance............................................. 9
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d. Restoration of Services; Abatement......................... 9
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8. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE....................... 9
a. Improvements; Alterations.................................. 9
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b. Repairs; Maintenance....................................... 10
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c. Performance of Work........................................ 10
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d. Mechanic's Liens........................................... 10
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e. Landlord's Warranty........................................ 11
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9. USE................................................................... 11
a. Permitted Use/Compliance with Laws......................... 11
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b. Hazardous Materials........................................ 11
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10. ASSIGNMENT AND SUBLETTING............................................. 12
a. Assignment or Sublease..................................... 12
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b. Consent.................................................... 12
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c. Additional Compensation.................................... 13
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d. Continued Liability........................................ 13
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e. Transfer of Controlling Interest........................... 13
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f. Landlord's Right to Recapture the Premises................. 13
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g. Costs and Expenses......................................... 13
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11. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY............................ 13
a. Insurance.................................................. 13
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b. Waiver; No Subrogation..................................... 14
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c. Indemnity.................................................. 14
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12. SUBORDINATION ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE.............. 14
a. Subordination.............................................. 14
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b. Attornment................................................. 14
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c. Notice to Landlord's Mortgagee............................. 15
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d. Certificates Requested by Landlord's Mortgagee............. 15
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13. RULES AND REGULATIONS................................................. 15
14. CONDEMNATION.......................................................... 15
15. FIRE OR OTHER CASUALTY................................................ 15
a. Repair Estimate............................................ 15
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b. Landlord's and Tenant's Rights............................. 16
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c. Landlord's Rights.......................................... 16
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d. Repair Obligation.......................................... 16
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16. TAXES................................................................. 16
17. EVENTS OF DEFAULT..................................................... 16
18. REMEDIES.............................................................. 17
19. PAYMENT BY TENANT; NON-WAIVER......................................... 18
a. Payment by Tenant.......................................... 18
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b. No Waiver.................................................. 18
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20. SURRENDER OF PREMISES................................................. 18
21. HOLDING OVER.......................................................... 19
22. CERTAIN RIGHTS RESERVED BY LANDLORD................................... 19
23. MISCELLANEOUS......................................................... 20
a. Landlord Transfer.......................................... 20
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b. Landlord's Default and Liability........................... 20
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c. Force Majeure.............................................. 21
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d. Criminal Acts of Third Parties............................. 21
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e. Brokerage.................................................. 21
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f. Estoppel Certificates...................................... 21
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g. Notices.................................................... 21
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h. Severability............................................... 22
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i. Amendments; and Binding Effect............................. 22
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j. Quiet Enjoyment............................................ 22
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k. Joint and Several Liability................................ 22
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l. Captions................................................... 22
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m. No Merger.................................................. 22
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n. No Offer................................................... 22
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o. No Rights to Use of Building Name.......................... 22
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p. Time of Essence............................................ 23
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q. Authority of Parties....................................... 23
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r. Governing Law.............................................. 23
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s. Right of First Offer....................................... 23
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t. Option to Terminate........................................ 23
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u. Signage.................................................... 24
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v. Satellite Dish............................................. 24
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w. Exhibits................................................... 24
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24. SPECIAL PROVISIONS.................................................... 24
a. Condition ................................................. 24
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OFFICE BUILDING LEASE AGREEMENT
THIS OFFICE BUILDING LEASE AGREEMENT ("the
Lease") is entered into as of June 11, 1999 between
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SOVRAN LIMITED COMPANY, a Virginia corporation
("Landlord") and LifeMinders.com Inc., a Maryland
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corporation ("Tenant").
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DEFINITIONS AND 1. a. Basic Lease Information. The
BASIC -----------------------
PROVISIONS definitions and basic provisions set forth in the
Basic Lease Information (the "Basic Lease
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Information") executed by Landlord and Tenant
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contemporaneously herewith are incorporated herein
by reference for all purposes.
b. Rentable Area. All provisions
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included in this Lease relating to the Rentable
Area of the Premises, including, but not limited
to, Basic Rental and Tenant's Proportionate Share,
shall be adjusted to reflect the actual number of
rentable square feet in the Premises. The
calculation of the Rentable Area shall be made by
Landlord in accordance with the method of measuring
rentable square feet described by the Washington,
D.C. Board of Realtors Standard Method of
Measurement. If an adjustment to the Rentable Area
is made after this Lease is executed by Landlord
and Tenant, the Basic Rental and Tenant's
Proportionate Share shall be adjusted accordingly.
c. Service Areas. "Service Areas"
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means the square footage of the areas within (and
measured from the mid-point of the walls enclosing)
the Building stairs, fire towers, elevator shafts,
flues, vents, stacks, pipe shafts, vertical ducts
and other vertical penetrations. Areas for the
specific use of a tenant and installed at the
request of a tenant such as special stairs or
elevators are not included within the definition of
Service Areas, and such areas will be included in
the Rentable Area of the space being measured.
d. Building-Shared Areas.
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"Building-Shared Areas" means the square footage of
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the areas within (and measured from the mid-point
of the walls enclosing) the Building elevator
machine rooms, main mechanical and electrical
rooms, public lobbies, and other areas not leased
or held for lease within the Building and not
included in Service Areas or Floor-Shared Areas,
but which are necessary or desirable for the proper
utilization of the Building or to provide customary
services to the Building.
e. Floor-Shared Areas. "Floor-
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Shared Areas" means the square footage of the areas
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within (and measured from the mid-point of the
walls enclosing) public corridors, elevator foyers,
rest rooms, mechanical rooms, janitor closets,
telephone and equipment rooms, and other similar
facilities for the use of all tenants on the floor
on which the Premises are located and which are not
included in Service Areas or Rentable Area of a
Particular tenant.
f. Stipulations as to Area.
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Landlord and tenant hereby agree that the Rentable
Area of the Premises has been calculated on the
basis of the feregoing definitions to be the number
of square feet of Rentable Area for the Premises
set forth in the Basic Lease Information.
LEASE GRANT 2. Subject to the terms of this Lease,
Landlord leases to Tenant, and Tenant leases from
Landlord, the Premises. In addition, Tenant shall
have the non-exclusive right, along with Landlord
and all other tenants in the Building and their
invitees, to use areas designated by Landlord to be
the common areas in the Building and the
Appurienant Facilities, except any portions thereof
designated for the use of specific tenants.
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TERM 3. If the Commencement Date is not the first day of a calendar
month, then the Term shall be extended by the time between the
Commencement Date and the first day of the next month. In the
event Tenant occupies the Premises prior to the scheduled
Commencement Date, the Commencement Date shall be defined as the
date such occupancy commences. If this Lease is executed before
the Premises become vacant or otherwise available and ready for
occupancy by Tenant, or if any present occupant of the Premises
holds over and Landlord cannot acquire possession of the
Premises before the Commencement Date, then (a) Tenant's
obligation to pay Rent hereunder shall be waived until Landlord
tenders possession of the Premises to Tenant, (b) the Term shall
be extended by the time between the scheduled Commencement Date
and the date on which Landlord tenders possession of the Premises
to Tenant (which date will then be defined as the Commencement
Date), (c) Landlord shall not be in default hereunder or be
liable for damages therefor, and (d) Tenant shall accept
possession of the Premises when Landlord tenders possession
thereof to Tenant. By occupying the Premises, Tenant shall be
deemed to have accepted the Premises in their condition as of the
date of such occupancy, subject to the performance of punch-list
items that remain to be performed by Landlord, if any. By
occupying the Premises, Tenant shall be deemed to have accepted
the Premises in their condition as of the date of such
occupancy, subject to the performance of punch-list items that
remain to be performed by Landlord, if any. Landlord shall have
the right, but not the obligation, to deliver to Tenant a letter
(the "Confirmation Letter") confirming (i) the Commencement Date,
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(ii) that Tenant has accepted the Premises, and (iii) that
Landlord has performed all of its obligations, if any, with
respect to the condition of the Premises (except for punch-list
items specified in such Confirmation Letter). All information set
forth in the Confirmation Letter shall be deemed correct and
binding on both Landlord and Tenant, unless Tenant objects to any
such information in writing to Landlord within thirty (30) days
of Tenant's receipt of the Confirmation Letter. If requested by
Landlord, Tenant shall execute and deliver to Landlord, within
ten (10) business days after Landlord has requested same, a copy
of the Confirmation Letter, although Tenant's failure to execute
or deliver the same shall not limit the binding nature thereof if
Tenant fails to object in writing to any information set forth
therein within the time period provided in this Section 3.
RENT 4. a. Payment. Tenant shall timely pay to Landlord the Basic
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Rental and all additional sums to be paid by Tenant to Landlord
under this Lease, including the amounts set forth in Section 4b.,
without notice, demand, counterclaim, set-off or abatement, at
Landlord's Address (or such other address as Landlord may from
time to time designate in writing to Tenant). Basic Rental,
adjusted as herein provided, shall be payable monthly in advance
except as otherwise provided in this Lease, The first monthly
installment of Basic Rental shall be payable contemporaneously
with the execution of this Lease, the second installment, to
cover the rent of the time between three months after the
Commencement Date and the first day of the fourth full calendar
month, shall be made three months after the Commencement Date,
the third installment of one month rent shall be due on the first
day of fourth full calendar month and a like monthly installment
of Basic Rental shall be due on the first day of the fifth full
calendar month of the Term and continuing thereafter on the first
day of each succeeding calendar month during the Term. Basic
Rental for any fractional month at the beginning of the Term
shall be prorated and shall be due on the Commencement Date. In
addition to Basic Rental, all other payments to be made by Tenant
pursuant to this Lease shall be deemed to be and shall become
additional rent hereunder, whether or not the same be designated
as such, and shall be subject to the
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same terms and provisions as the Basic Rental, and
Landlord shall have the same remedies for failure
to pay the same as for nonpayment of Basic Rental.
b. Operating and Building Expense
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Escalator. Starting on September 1, 2000, Tenant
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shall pay an amount equal to the excess ("Excess
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Operating and Building Expense") of Tenant's
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Proportionate Share of the Operating and Building
Expenses for each calendar year or part thereof
during the Term, over the Operating and Building
Expenses for the year 1999. Until September 1,
2000, however, Tenant shall not be responsible for
Excess Operating and Building Expense. Landlord
will make a good faith estimate of the Excess
Operating and Building Expenses to be due by Tenant
for any calendar year or part thereof during the
Term, and, unless Landlord delivers to Tenant a
revision of the estimated Excess Operating and
Building Expenses, Tenant shall pay to Landlord, on
September 1, 2000 and on the first day of each
calendar month thereafter, an amount equal to the
estimated Excess Operating and Building Expenses
for such calendar year or part thereof divided by
the number of months in such calendar year during
the Term. From time to time during any calendar
year, Landlord may estimate and re-estimate the
Excess Operating and Building Expenses to be due by
Tenant for that calendar year and deliver a copy of
the estimate or re-estimate to Tenant. Thereafter,
the monthly installments of Excess Operating and
Building Expenses payable by Tenant shall be
appropriately adjusted in accordance with the
estimations so that, by the end of the calendar
year in question, Tenant shall have paid all of the
Excess Operating and Building Expenses as estimated
by Landlord. Any amounts paid based on such an
estimate shall be subject to adjustment pursuant to
Section 4e, when actual Operating and Building
Expenses are available for each calendar year.
c. Operating Expenses. For the purposes
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of this Section 4, the term "Operating Expenses"
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shall mean all expenses and disbursements of every
kind (subject to the limitations set forth below)
which Landlord incurs, pays or becomes obligated to
pay in connection with the ownership, operation,
and maintenance of the Shopping Center (exclusive
of Building Expenses), determined in accordance
with generally accepted federal income tax basis
accounting principles consistently applied,
including but not limited to the following:
(i) Management fees as well as wages and
salaries of all employees engaged in the
operation, repair, replacement, maintenance,
and security of the Shopping Center, including
taxes, insurance and benefits relating thereto;
(ii) All tools, equipment, supplies and
materials used in the operation, maintenance,
repair, replacement, and security of the
Shopping Center;
(iii) Annual cost of all capital
improvements made to the Shopping Center --
excluding interest except when the funds
required for such improvements were borrowed by
Landlord from a bank or financial institution
-- which can reasonably be expected to reduce
the normal operating costs of the Shopping
Center, as well as all capital improvements
made in order to comply with any law hereafter
promulgated by any governmental authority
relating to energy, conservation, public safety
or security, as amortized over the useful
economic life of such improvements as
determined by Landlord in its reasonable
discretion (without regard to the period over
which such improvements may be depreciated or
amortized for
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federal income tax purposes);
(iv) Cost of all utilities for the
Shopping Center, including the cost of water,
sewer and power for lighting those portions of
the Shopping Center that are exterior to the
Building, and other buildings in the Shopping
Center,
(v) Cost of any insurance or insurance
related expense applicable to the Shopping
Center, including the Building, and the other
buildings in the Shopping Center, and
Landlord's personal property used in connection
therewith, except increase in insurance cost
solely caused by the activities of another
occupant of the Shopping Center.
(vi) All taxes and assessments and
governmental charges whether federal, state,
county or municipal, and whether they be by
taxing districts or authorities presently
taxing or by others, subsequently created or
otherwise, and any other taxes and assessments
attributable to the Shopping Center, including
the Building, and other buildings in the
Shopping Center and the land comprising the
Shopping Center (or the operation or leasing
thereof), including, without limitation, any
gross revenue tax, sales tax, value-added tax,
or similar tax; excluding, however, Direct
Taxes (as defined in Paragraph 4g. hereof),
federal and state taxes on income
(collectively, "Taxes"); if the present method
of taxation charges so that in lieu of the
whole or any part of any Taxes levied on the
Shopping Center, there is levied on Landlord a
capital tax directly on the rents received
therefrom or a franchise tax, assessments, or
charge based, in whole or in part, upon such
rents for the Shopping Center, then all such
taxes, assessments, or charges, or the part
thereof so based, shall be deemed to be
included within the term "Taxes" for the
purposes hereof;
(vii) Cost of repairs, replacements, and
general maintenance of the Shopping Center,
exclusive of such of those costs which are
attributable solely to the Building or the
other buildings in the Shopping Center; and
(viii) Cost of the service or maintenance
contracts with independent contractors for the
operation, maintenance, repair, replacement, or
security of the Shopping Center (including
without limitation, landscaping, trash removal,
snow removal, and cleaning, striping and
maintenance of parking areas), but exclusive of
such of those costs which are attributable
solely to the Building or the other buildings
in the Shopping Center,
There are specifically excluded from the definition
of the term "Operating Expenses" costs (1) for
capital improvements made to the Shopping Center,
other than capital improvements described in
subparagraph (iii) above and except for items
which, though capital for accounting purposes, are
properly considered maintenance and repair items,
such as painting of common areas, replacement of
carpet in elevator lobbies, and the like; (2) for
repair, replacements and general maintenance paid
by proceeds of insurance or by Tenant or other
third parties, and alterations attributable solely
to tenants of the Shopping Center other than
Tenant; (3) for interest, amortization or other
payments on loans to Landlord; (4) for depreciation
of the Shopping Center; (5) for leasing
commissions; (6) for legal expenses other than
those incurred for the purpose of reducing
Operating Expenses (e.g., legal fees incurred in
contesting the assessment of Taxes); (7) for
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replacement, or security of the building
(including, without limitation, alarm service,
window cleaning, and elevator maintenance).
There are specifically excluded from the definition
of the term "Building Expenses" costs: (1) for
capital improvements made to the Building, other
than capital improvements described in subparagraph
(iii)above and except for items which, though
capital for accounting purposes, are properly
considered maintenance and repair items, such as
painting of common areas, replacement of carpet in
elevator lobbies, and the like; (2) for repair,
replacements and general maintenance paid by
proceeds of insurance or by Tenant or other third
parties, and alterations attributable solely to
tenants of the Building other than Tenant; (3) for
interest, amortization or other payments on loans
to Landlord; (4) for depreciation of the Building;
(5) for leasing commissions; (6) for legal expenses
other than those incurred for the purpose of
reducing Operating Expenses (e.g., legal fees
incurred in contesting the assessment of Taxes);
(7) for renovation or otherwise improving space for
occupants of the Building or vacant space in the
Building; (8) for correcting defects in the
construction of the Building; (9) for federal
income taxes imposed on or measured by the income
of Landlord from the operation of the Building;
(10) occasioned by the act, omission or violation
of any Law by Landlord or any other occupant of the
Building, or their respective agents, contractors;
(11) occasioned by condemnation, (12) to correct
any construction defect in the Building or to
comply with any law applicable to the Building on
the Commencement Date, (13) of any renovation,
improvement, painting or redecoration of any
portion of the Building not made available for
Tenant's use or benefit; (14) incurred in
connection with marketing or any occupant of the
Building (other then Tenant) of the terms and
conditions of any lease or other agreements; (15)
incurred in connection with the presence of any
Hazardous Material which may exist in the Building
on the Commencement Date except to the extent
caused by the release or emission of the Hazardous
Materials in question by Tenant and (16) executives
salaries.
e. Adjustment. The annual cost
statement shall include a statement of Landlord's
actual Operating and Building Expenses for the
previous year adjusted as provided in Sections 4c
and 4d. If the annual cost statement reveals that
Tenant paid more for Operating and Building
Expenses than the actual Excess Operating and
Building Expenses in the year for which such
statement was prepared, then Landlord shall credit
against the next Operating and Building Expenses
payment due or reimburse Tenant for such excess;
likewise, if Tenant paid less than the actual
Excess Operating and Building Expenses, then Tenant
shall pay Landlord such deficiency within sixty
(60) days after delivery of such annual cost
statement. Within sixty (60) days after the receipt
of Landlord's annual cost statement, Tenant shall
have the right to request copies of a statement of
"Operating and Building Expenses of the Building"
prepared by the Landlord in accordance with a
method of accounting consistently applied from year
to year, which shall be supplied to the Tenant
within a reasonable time after Tenant's written
request, but no such request shall extend the time
for payment as set forth herein. Unless Tenant
asserts specific error(s) within thirty (30) days
after Landlord has complied with Tenant's request,
the statement submitted by Landlord shall be deemed
to be correct. Provided Tenant timely asserts such
specific errors, and is current in obligations to
Landlord for the payment of all sums due to
Landlord as Rent under this Lease, and has not
otherwise defaulted in its obligations to Landlord
under this Lease, Tenant shall have the right,
exercisable no more than once per Lease Year, to
cause Landlord's books
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and records showing Taxes and Operating Expenses for the prior
Lease Year to be examined by a Certified Public Accountant,
engaged by Tenant, upon no less than thirty (30) days prior
written notice and during normal business hours at any time
within one hundred and eighty (180) days following the expiration
of the prior Lease Year. No such Certified Public Accountant may
be engaged on a contingent fee basis. Such examination shall, at
Landlord's option, occur at the offices of the Landlord's
management agent, and shall not take more than thirty (30) days
to complete. Any information obtained by Tenant from such
examination will be treated as confidential unless and until such
information has been publicly disclosed by Landlord; provided,
however, that nothing herein contained shall limit or impair the
right or obligation of Tenant to disclose such information when
required to do so by law or to appropriate regulatory authorities
having jurisdiction over its affairs, or to use the same in
connection with the enforcement of the terms and conditions of
the Lease. As a condition of such examination, Landlord may
require any party reviewing or having access to Landlord's
records to execute and deliver to Landlord a confidentiality
agreement in a form reasonably satisfactory to Landlord. In the
event that such examination reveals that Building or Operating
Expenses have been overstated by five percent (5%) or more,
Landlord shall afford a credit to Tenant against the next monthly
payments of estimated Operating Costs due as contemplated by
this Paragraph 4(e) for any overpayments previously made by
Tenant; similarly, if such examination reveals that Operating or
Building Expenses for any Lease Year have been understated,
Tenant shall pay to Landlord, within thirty (30) days of
completion of such examination, the amount by which Operating
Expenses and/or Building Expenses have been understated.
f. Gross-Up. With respect to any calendar year or partial
--------
calendar year in which the entire Rentable Area of the Building
is not occupied, the Building Expenses for such period that vary
with occupancy will, for the purposes hereof, be increased to the
amount which would have been incurred had ninety-five percent
(95%) of the Rentable Area of the Building been occupied, based
on good faith estimates made by Landlord and the management
company managing the Building.
g. Direct Taxes. At the same time and in the same manner
------------
as the payment of Basic Rental hereunder, Tenant shall pay any
gross revenue tax, sales tax, excise tax, value-added tax,
privilege tax, or similar tax imposed by any government or
governmental agency upon Tenant or Landlord on account of the
Lease or the payment of Rent hereunder ("Direct Taxes").
------------
h. Survivability of Obligations. All obligations of Tenant
----------------------------
to pay Rent accrued prior to termination of this Lease shall
survive such termination.
DELINQUENT 5. a. All Rent to be paid by Tenant to Landlord shall be in
PAYMENT lawful money of the United States of America and shall be paid
CHARGES without deduction or offset, prior notice or demand, at the
address set forth in the Basic Lease Information, or at such
other places as may be designated from time to time by Landlord.
In the event a check is submitted by Tenant for payment, and is
returned for insufficient funds, a $25 handling fee will be
assessed by Landlord. If thereafter a second check is returned
for insufficient funds, another handling fee in the amount of
$50 will be assessed, and all future payments thereafter must be
made in cash or by cashier's or certified check. In the event any
Rent is not received within ten (10) days after its due date for
any reason whatsoever, then in addition to the past due amount
Tenant shall pay to Landlord one of the following
7
<PAGE>
(the choice to be at the sole option of Landlord
unless one of the choices is improper under
applicable law, in which event the other
alternative will automatically be deemed to have
been selected): (a) a late charge in an amount
equal to five percent (5%) of the Rent then past
due, in order to compensate Landlord for its
administrative and other overhead expenses; and (b)
interest on the Rent then past due at a rate equal
to the lesser of (i) fifteen percent (15%) per
annum, or (ii) the maximum contractual rate which
could legally be charged in the event of a loan of
such Rent to Tenant, such interest to accrue
continuously on any unpaid balance due to Landlord
by Tenant during the period commencing with the
Rent due date and terminating with the date on
which Tenant makes full payment of all amounts
owing to Landlord at the time of said payment. Any
such late charge or interest payment shall be
payable as additional Rent under this Lease and
shall be payable immediately on demand. In no
event, however, shall the charges permitted under
this Section 5 or elsewhere in this Lease, to the
extent the same are considered to be interest under
applicable law, exceed the maximum lawful contract
rate of interest.
SECURITY 6. a. Contemporaneously with the execution
DEPOSIT of this Lease, the sum of one hundred thousand
Dollars ($100,000.00) shall be delivered to
Landlord as a Security Deposit (the "Security
Deposit") pursuant to this Lease shall be security
for the payment and performance by Tenant of all
Tenant's obligations, covenants, conditions and
agreements under this Lease. Such sum shall be
either in cash, or in a letter of credit ("Letter
of Credit"). Upon the expiration of the Term
hereof, or any extension or renewal thereof,
Landlord shall, if Tenant is not in default, return
such Security Deposit to Tenant, less portion
thereof as Landlord shall have appropriated to make
good any default by Tenant with respect to Tenant's
obligations within ninety (90) days of such
expiration. If Tenant makes any default during the
term of this Lease, Landlord shall have the right,
but not the obligation, to apply all or any portion
of the Security Deposit to remedy such default, in
which event Tenant shall promptly deposit with
Landlord the amount necessary to restore the
Security Deposit to its original amount. The
Security Deposit shall not be deemed liquidated
damages, and Landlord application of said Security
Deposit to reduce its damages shall not preclude
recovery from Tenant of any additional damages
incurred by Landlord. If the Landlord sells or
transfers its interest in the Building, Landlord
shall transfer the Security Deposit, and the
Landlord shall be released from all liability to
Tenant for the return of such Security Deposit.
b. Landlord agrees to accept a Letter of Credit
as and for the Security Deposit, provided that such
Letter of Credit shall be (i) unconditional; (ii)
irrevocable; (iii) issued by a financial
institution approved by Landlord in Landlord's
discretion, which financial institution must be a
member bank of the Federal Reserve; (iv) in a form
permitting partial and multiple drawings; (v) for
either multiple terms of at least one (1) year in
each duration, which are automatically renewed
unless notice is given to Landlord at least sixty
(60) days prior to the expiration thereof,
extending until the date which is ninety (90) days
after the expiration of the Lease Term, as such
Lease Term may be extended pursuant to the
provisions of the Lease, or at Tenant's option for
a single term extending until the date which is
ninety (90) days after the expiration of the Lease
Term, as such Lease Term may be extended pursuant
to the provisions of the Lease and (vi) be in a
form and substance acceptable to the Landlord, in
its sole discretion, substantially in conformity
with the provisions of Exhibit C hereto. If a
partial drawing occurs under the Letter of Credit,
the Tenant shall, upon demand but not more than
five (5) days after such partial drawing, cause the
financial institution to reissue the Letter of
8
<PAGE>
Credit in the amount then currently required under the terms of
this Lease. Notwithstanding the foregoing, the Landlord shall be
entitled to draw down the entire amount of the Letter of Credit,
without any notice, at any time on or after the earlier of (i)
the Occurrence of an Event of Default by Tenant under the Lease;
or (ii) at any time after the sixtieth (60th) day preceding the
expiration date of the Letter of Credit in the event that the
issuer of the Letter of Credit gives notice to Landlord that it
will not renew the Letter of Credit as contemplated hereby.
LANDLORD'S 7. a. Services. Provided no Event of Default exists, Landlord
OBLIGATION --------
shall use reasonable efforts to furnish to Tenant (i) water (hot
and cold) at those points of supply provided for general use of
tenants of the Building; (ii) heated and refrigerated air
conditioning as appropriate, at such temperatures and in such
amounts as are reasonably considered by Landlord to be standard;
(iii) replacement of Building standard light bulbs and
fluorescent tubes, provided that Landlord's standard charge for
such bulbs and tubes replaced in the Premises shall be paid by
Tenant; and (iv) electrical current during normal business hours.
b. Utility charges. Landlord shall install submeters to
---------------
enable Tenant to run the air conditioning units of the Premises
and to use electrical current at such hours as Tenant may select
at its own cost. Landlord shall notify Tenant monthly of such
utility charges and Tenant shall pay to Landlord the cost of such
service within ten (10) days after Landlord has delivered to
Tenant an invoice therefor.
e. Discontinuance. Landlord's obligation to furnish
--------------
utility services under Section 7a. shall be subject to the rules
and regulations of the supplier of such services and
governmental rules and regulations. Landlord may, upon not less
than 30-days' prior written notice to Tenant, discontinue any
such service to the Premises, provided Landlord first arranges
for a direct connection thereof through the supplier of such
service. Tenant shall, however, be responsible for contracting
with the supplier of such service and for paying all deposits
for, and costs relating to, such service.
d. Restoration of Services; Abatement. Landlord shall use
----------------------------------
reasonable efforts to restore any service that becomes
unavailable; however, such unavailability shall not render
Landlord liable for any damages caused thereby, be a constructive
eviction of Tenant, constitute a breach of any implied warranty,
or entitle Tenant to any abatement of Tenant's obligations
hereunder, including but not limited to Tenant's obligation to
pay Rent.
IMPROVEMENTS; 8. a. Improvements; Alterations. Except as otherwise
ALTERATIONS; -------------------------
REPAIRS; specified in this Lease or in any Exhibit hereto, improvements
MAINTENANCE to the Premises as well as installation of sinage and satellite
dish provided for in Sections 23u and 23v below, shall be
installed at the expense of Tenant only in accordance with
plans and specifications which have been previously submitted
to and approved in writing by Landlord, After the initial Tenant
improvements are made (if any), no alterations or physical
additions in or to the Premises may be made without Landlord's
prior written consent. Tenant shall not paint or install
lighting or decorations, signs, window or door lettering, or
advertising media of any type on or about the Premises without
the prior written consent of Landlord. All alterations,
additions, or improvements (whether temporary or permanent in
character, and including without limitation all air conditioning
equipment and all other equipment that is in any manner connected
to the Building's plumbing system) made in or upon the Premises,
either by Landlord or
9
<PAGE>
Tenant, except the initial Tenant Improvement paid for by
Landlord, shall at Landlord's option, either be removed by
Tenant, shall become Landlord's property at the end of the Term
and shall remain on the Premises without compensation to Tenant;
provided, however, that if tenant is not then in default
hereunder and Tenant repairs any damage caused by such removal,
Tenant may remove its trade fixtures at the end of the Term.
Approval by Landlord of any of Tenant's drawings and plans and
specifications prepared in connection with any improvements,
alterations or additions in the Premises as well as signage and
satellite dish shall not constitute a representation or warranty
of Landlord as to the adequacy or sufficiency of such drawings,
plans and specifications, or the improvements to which they
relate, for any use, purpose, or condition, but such approval
shall merely be the consent of Landlord as required hereunder.
Notwithstanding the above provision, Landlord shall, at Tenant's
written request, notify Tenant at time of alteration if
alteration will have to be removed upon termination of Lease.
b. Repairs: Maintenance. Tenant shall maintain the Premises
--------------------
in a clean, safe, operable, attractive condition, and shall not
permit or allow to remain any waste or damage to any portion of
the Premises. Landlord shall, at its own expense (but subject to
Landlord's right to reimbursement for maintenance expenses
constituting Operating Expenses), maintain the exterior walls and
the structure, electrical, plumbing and mechanical systems of the
Building provided that Tenant shall repair or replace, subject to
Landlord's direction and supervision, any damage to the Building
or any of its systems caused by Tenant or Tenant's agents,
contractors, or invitees. If Tenant fails to make such repairs or
replacements within fifteen (15) days after the occurrence of
such damage, then Landlord may make the same at Tenant's cost,
which cost shall include an additional fee equal to 15% of the
cost for Landlord's overhead expense, and shall be payable to
Landlord within ten (10) days after Landlord has delivered to
Tenant an invoice therefor.
c. Performance of Work. All work described in this Section 8
-------------------
shall be performed only by Landlord or by contractors and
subcontractors approved in writing by Landlord. With respect to
the initial Tenant Improvements, however, Tenant shall have the
right to select the general contractor from at least (3) bids
submitted by general contractors whose qualification have been
reasonably approved by the Landlord. Tenant shall cause all
contractors and subcontractors to procure and maintain insurance
coverage against such risks, in such amounts, and with such
companies as Landlord may reasonably require, and to procure
payment and performance bonds reasonably satisfactory to Landlord
covering the cost of the work. All such work shall be performed
in accordance with all legal requirements and in a good and
workmanlike manner so as not to damage the Premises, the primary
structure or structural qualities of the Building, or plumbing,
electrical lines, or other utility transmission facility.
d. Mechanic's Liens. Tenant shall not permit any mechanic's
----------------
liens to be filed against the Premises or the Building for any
work performed, materials furnished, or obligation incurred by or
at the request of Tenant. If such a lien is filed, then `Tenant
shall, within ten (10) days after Landlord has delivered notice
of the filing to Tenant, either pay the amount of the lien or
diligently contest such lien and deliver to Landlord a bond or
other security reasonably satisfactory to Landlord. If Tenant
elects to contest such lien and if a statutory proceeding exists
for the release of the lien by the posing of a bond, Tenant shall
immediately proceed to obtain a release of said lien in
accordance with much statute. If
10
<PAGE>
permitted by Tenant and regardless of who shall have brought such
Hazardous Materials thereon. If Tenant permits any Hazardous Material
to be brought upon, kept or used in or about the Premises or Building
or Appurtenant Facilities or the Land, then Tenant shall take all
steps reasonably necessary to safeguard against their discharge and
Tenant shall indemnify, (defend and hold Landlord harmless from any
and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses, including but not limited to, diminution in
value of the Premises or Building or Appurtenant Facilities or the
Land, damages for loss or restriction on use of rentable or usable
space or of any amenity in the Premises or Building or Appurtenant
Facilities or the Land, damages arising from any adverse impact on
marketing of the Premises or Building or Appurtenant Facilities or the
Land, and sums paid in settlement of claims, attorneys' fees,
consulting fees and expert fees, which arise during or after the Term
as a result of such contamination. This indemnification of Landlord by
Tenant includes but is not limited to costs incurred in connection
with any investigation of sight conditions or clean-up, remedial
removal or restoration work required by any federal, state or local
government agency or political subdivision because of Hazardous
Material present in the Premises or Building or Appurtenant Facilities
or the Land or the soil or ground water on which the Building is
located. Without limiting the foregoing, if the presence of any
Hazardous Material on the Premises or Building or Appurtenant
Facilities or the Land caused or permitted by Tenant results in any
contamination of the Premises or Building or Appurtenant Facilities or
the Land, Tenant shall, upon request by Landlord, promptly take all
actions at its sole expense that are necessary to return the Premises
or Building or Appurtenant Facilities or the Land to the condition
existing prior to the introduction or exposure of any Hazardous
Material in the Premises or Building or Appurtenant Facilities or the
Land. The indemnity provision set forth in this Section 9b. shall
survive termination or expiration of this Lease. To the best knowledge
of Landlord, (a) no Hazardous Material is present in the Premises or
in the Building or the soil, surface water or groundwater thereof, (b)
no underground storage tanks are present at the Building, and (c) no
action, proceeding or claim is pending or threatened regarding the
Building concerning any Hazardous Material or pursuant to any
environmental Law.
ASSIGN- 10. a. Assignment or Sublease. Tenant shall not voluntarily or
MENT AND -----------------------
SUBLET- by operation of law assign, transfer, mortgage, sublet, or otherwise
TING transfer or encumber all or any part of Tenant's interest in this
Lease or in the Premises without Landlord's prior written consent,
such consent shall not be unreasonably withheld, delayed or
conditioned. Notwithstanding the provisions hereof, Tenant may assign
or sublet the premises, or any portion thereof, without Landlord's
consent, to any corporation which controls, is controlled by or is
under common control with Tenant, or to any person or entity which
acquires all the assets of Tenant as a going concern of the business
that is being conducted on the premises, provided that said assignee
assumes, in full, the obligations of Tenant under this Lease.
assignment
b. Consent. The consent by Landlord to a particular
-------
assignment or sublease shall not be deemed a consent to any other
assignment or sublease. If Landlord consents to a proposed assignment
or sublease, then the proposed transferee shall deliver to Landlord a
written agreement whereby it expressly assumes the Tenant's
obligations hereunder; however, any tranferee of less than all of the
space in the Premises shall be liable only for obligations under this
Lease that are properly allocable to the space subject to the
assignment or sublease, and only to the extent of the rent it has
agreed to pay Tenant therefor.
12
<PAGE>
Tenant fails either to timely pay the lien amount or diligently
contest such lien and deliver the required bond or security, then
Landlord may pay the lien claim without inquiry as to the validity
thereof, and any amounts so paid, including expenses and interest,
shall be paid by Tenant to Landlord within ten (10) days after
Landlord has delivered to Tenant an invoice therefor. Tenant shall
indemnify and hold Landlord harmless from all costs and attorney fees
incurred by Landlord as the result of the assertion of any such lien
claim. Nothing contained in this Lease will be deemed the consent or
agreement of Landlord, nor shall Tenant be deemed to have any
authority, to subject Landlord's interest in the Premises or the
Building to the imposition of any lien, or otherwise to liability,
under any mechanics' or other lien law.
e. Landford's Warranty. Landlord warrants and represents
-------------------
that, as of the Commencement Date, (i) the Building, except for the
Tenant Improvements and the demised premises and premises occupied by
other tenants, complies with all Laws and is in a good operating
condition and repair and (ii) the roof of the Building is in good
condition and water tight. Landlord, within a reasonable time after
receipt of notice from Tenant, will remedy any non-compliance with
such warranty at Landlord's sole cost and expense.
USE
9. a. Permitted Use/Compliance with Laws. Tenant shall
----------------------------------
continuously occupy and use the Premises only for the Permitted Use
and shall comply with laws, orders, rules, and regulations relating to
the use, condition, and occupancy of the Premises. Tenant shall comply
with any direction of any governmental authority having jurisdiction
over the Premises, which shall by reason of the nature of Tenant's use
or occupancy of the Premises, impose any duty upon Tenant or Landlord
with respect to the Premises or the occupancy thereof. Tenant shall
not do or permit anything to be done which would invalidate or
increase the cost of any fire, extended coverage, or any other
insurance policy covering the Building. Notwithstanding the foregoing
and without limiting the remedies of Landlord for a violation of the
provisions of this Section 9a,, Tenant shall promptly, upon demand
reimburse Landlord for the full amount of any additional premium
charged for such policy by reason of Tenant's failure to comply with
the provisions of this Section 9a. Tenant shall not in any way
obstruct or interfere with the rights or other tenants or occupants of
the Building, or use or allow the Premises to be used for any
improper, immoral or objectionable purpose nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises.
b. Hazardous Materials. The Premises shall not be used for
-------------------
any use which is disreputable or creates extraordinary fire hazards or
results in an increased rate of insurance on the Building or its
contents or the storage of any Hazardous Materials (as defined below).
Without limiting the foregoing, Tenant shall not cause or permit any
Hazardous Material to be brought upon, kept or used in or about the
Premises or Building or Appurtenant Facilities or the Land by Tenant,
its employees, agents, contractors or invitees. As used herein, the
term "Hazardous Material" shall mean any hazardous or toxic substance,
------------------
material or waste, including but not limited to, those substances,
materials and wastes now or hereafter listed in the United States
Department of Transportation Hazardous Materials Table or by the
Environment Protection Agency as hazardous substances, or such
substances, materials and wastes that are to become regulated under
any applicable federal, state or local law. Tenant expressly covenants
that Tenant will advise Landlord immediately upon learning that any
Hazardous Materials has been brought upon the Premises or Building or
Appurtenant Facilities or the Land, whether or not caused or
11
<PAGE>
c. Additional Compensation. Tenant
-----------------------
shall pay Landlord, immediately upon receipt
thereof; fifty percent (50%) of all compensation
received by Tenant for an assignment or sublease
that exceeds the Rent allocable to the portion of
the Premises covered thereby.
d. Continued Liability. Tenant shall,
-------------------
despite any permitted assignment or sublease,
remain directly and primarily liable for the
performance of all of the covenants, duties, and
obligations of Tenant hereunder, and Landlord shall
be permitted to enforce the provisions of this
Lease against Tenant or any assignee or sublessee
without demand upon or proceeding in any way
against any other person.
e. Transfer of Controlling Interest. If
--------------------------------
Tenant is not a public company that is registered
on a national stock exchange or that is required to
register its stock with the Securities and Exchange
Commission under Section 12(g) of the Securities
and Exchange Act of 1934, then any change in a
majority of the voting rights or other controlling
rights or interests of Tenant shall be deemed an
assignment for the purposes hereof.
f. Landlord's Right to Recapture the
---------------------------------
Premises. If Tenant proposes to assign this Lease
--------
other than under the provisions of the second
sentence of paragraph lO.a above, Landlord may, at
its option, upon written notice to Tenant given
within thirty (30) days after its receipt of
Tenant's notice of proposed assignment, together
with all other necessary information, elect to
recapture the Premises and terminate this Lease.
g. Costs and Expenses. Tenant shall
------------------
reimburse Landlord, within thirty (30) days of
demand therefor, up to five hundred Dollars
($500.00), for all costs and expenses, including
attorneys fees, incurred by Landlord in connection
with any request by Tenant to assign this Lease, or
sublet all or any portion of the Premises, whether
or not the consent of the Landlord is required, or
given.
INSURANCE; 11. a. Insurance. Tenant shall at its
WAIVERS; ---------
SUBROGATION; expense procure and maintain throughout the Term
INDEMNITY the following insurance policies: (i)
other comprehensive general liability insurance in
amounts of not less than a combined single limit of
Two Million Dollars ($2,000,000.00) or such amounts
as Landlord may from time to time reasonably
require, insuring Tenant, Landlord, and Landlord's
agents against all liability for injury to or death
of a person or persons or damage to property
arising from the use and occupancy of the Premises,
Building, Appurtenant Facilities or Land, (ii)
contractual liability insurance coverage sufficient
to cover Tenant's indemnity obligations hereunder,
(iii) if Tenant operates owned, leased, hired or
non-owned vehicles on the Premises, comprehensive
automobile liability insurance at a limit of
liability not less than One Million Dollars
($1,000,000.00) combined bodily injury and property
damages, (iv) insurance covering the full value of
Tenant's property and improvements, and other
property (including property of others), in the
Premises, and (v) business interruption insurance.
Tenant's insurance shall provide primary coverage
to Landlord when any policy issued to Landlord
provides duplicate or similar coverage, and in such
circumstance Landlord's policy will be excess over
Tenant's policy. Tenant shall furnish certificates
of such insurance and such other evidence
satisfactory to landlord of the maintenance of all
insurance coverage required hereunder, and Tenant
shall obtain a written obligation on the part of
each insurance company to notify Landlord at least
30 days before cancellation or a material change of
any such insurance. All such insurance policies
shall be in form, and issued by companies,
satisfactory to Landlord. Tenant may carry such
insurance
13
<PAGE>
under a blanket policy, provided such insurance has
a landlord's protective liability endorsement
attached thereto. If Tenant fails to procure and
maintain said insurance, Landlord may, but shall
not be required to, procure and maintain same, but
at the expense of Tenant. No policy shall be
cancelable or subject to reduction of coverage
except after thirty (30) days prior written notice
to Landlord. Landlord shall, subject to Landlord's
right to reimbursement for expenses constituting
Operating Expenses, maintain insurance on the
Building equal to its full replacement value.
b. Waiver: No Subrogation. Landlord
----------------------
shall not be liable to Tenant or those claiming by,
through, or under Tenant for any injury to or death
of any person or persons or the damage to or theft,
destruction, loss, or loss of use of any property
(a "Loss") caused by casualty, theft, fire, or
----
third parties, or by any other matter beyond the
reasonable control of Landlord, or for any injury
or damage to persons or property or inconvenience
which may arise through repair or alteration of any
part of the Building, or failure to make repairs,
or from any other cause, except if such Loss is
caused by Landlord's gross negligence or willful
misconduct and Landlord shall indemnify Tenant
against and hold Tenant harmless from any such
loss, in which event Landlord shall be liable only
for direct damages and not for any incidental or
consequential damages. Notwithstanding the above,
Tenant waives any claim it might have against
Landlord for any injury or damage to or theft,
destruction, loss, or loss of use of any property,
to the extent the same is insured against under any
insurance policy that covers the Building, the
Premises, Landlord's or Tenant's fixtures, personal
property, leasehold improvements, or business, or
is required to be insured against under the terms
hereof, regardless of whether the negligence or
fault of the other party caused such loss. Tenant
shall cause its insurance carrier to endorse all
applicable policies waiving the carrier's rights of
recovery under subrogation or otherwise against the
Landlord.
c. Indemnity. Subject to Section llb.,
---------
Tenant shall defend, indemnify, and hold harmless
Landlord and its agents from and against all
claims, demands, liabilities, causes of action,
suits, judgments, and expenses (including
attorneys' fees) for any Loss arising from any
occurrence on the Premises, Building, Appurtenant
Facilities or Land, or from Tenant's failure to
perform its obligations under this Lease (other
than a Loss directly and mainly arising from the
sole or gross negligence or willful misconduct of
Landlord or its agents), even though caused or
alleged to be caused by the joint, comparative, or
concurrent negligence or fault of Landlord or its
agents, and even though any such claim, cause of
action, or suit is based upon or alleged to be
based upon the strict liability of Landlord or its
agents. This indemnity provision is intended to
indemnify Landlord and its agents against the
consequences of their own negligence or fault as
provided above when Landlord or its agents are
jointly, comparatively, or concurrently negligent
with Tenant. This indemnity provision shall survive
termination or expiration of this Lease.
SUBORDINATION 12. a. Subordination. This Lease shall be
ATTORNMENT; NOTICE TO -------------
LANDLORD'S and is hereby made subordinate to any deed of
MORTGAGEE trust, mortgage, or other security instrument (a
"Mortgage"), or any ground lease, master lease,
--------
or primary lease (a "Primary Lease"), that now or
-------------
hereafter covers all or any part of the Premises
(the mortgagee under any Mortgage or the lessor
under any Primary Lease is referred to herein as
"Landlord's Mortgagee").
--------------------
b. Attornment. Tenant shall attorn to
----------
any party succeeding to Landlord's interest in the
Premises, whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of
lease,
14
<PAGE>
or otherwise, upon such party's request, and shall
execute such agreements confirming such attornment
as such party may reasonably request provided that
in such agreement the succeeding party agrees not
to disturb Tenant's right to possession of the
Premises so long as Tenant is not in default
hereunder. ln the event of such request and upon
Tenant's attornment as aforesaid, Tenant will
automatically become the tenant of the successor to
Landlord's interest without change in the terms or
provisions of this Lease; provided, however, that
such successor to Landlord's interest shall not be
bound by (a) any payment of Rent for more than one
month in advance (except prepayments for security
deposits, if any), (b) any amendments or
modifications of this Lease made without the prior
written consent of Landlord's Mortgagee if Tenant
was advised on the interest of the same, or (c) any
credits, offsets, defenses or claims which Tenant
may have against Landlord.
c. Notice to Landlord's Mortgagee.
------------------------------
Tenant shall not seek to enforce any remedy it may
have for any default on the part of the Landlord
without first giving written notice by certified
mail, return receipt required, specifying the
default in reasonable detail, to any Landlord's
Mortgagee whose address has been given to Tenant,
and affording such Landlord's Mortgagee a
reasonable opportunity to perform Landlord's
obligations hereunder.
d. Certificates Requested by Landlord's
------------------------------------
Mortgagee. From time to time, Tenant shall furnish
---------
to any Landlord's Mortgagee, within ten (10) days
after a request therefor, such estoppel
certificates, non-disturbance and attornment
agreements, or other certificates as Landlord's
Mortgagee may reasonably request.
RULES AND 13. Tenant shall comply with the rules and
REGULATIONS regulations of the Building which are attached
hereto as Exhibit B. Landlord may, from time to
time, change such rules and regulations for the
safety, care, or cleanliness of the Building and
related facilities, provided that such changes will
not unreasonably interfere with Tenant's use of the
Premises. Tenant shall be responsible for the
compliance with such rules and regulations by its
employees, agents, and invitees. Landlord shall not
be responsible to Tenant for the failure or refusal
by any tenant or other person in the Building or
Appurtenant Facilities to comply with the rules and
regulations established by Landlord.
CONDEMNATION 14. If all or any part of the Premises or the
Building is taken by right of eminent domain or
conveyed in lieu thereof (a "Taking"), Landlord may
------
elect to terminate this Lease or to continue this
Lease in effect. If Landlord elects to terminate
this Lease, Rent shall be apportioned as of the
date of such Taking. If Landlord elects to continue
the Lease, the Basic Rental and Excess Operating
Expense shall be abated on a reasonable basis as to
that portion of the Premises rendered untenable by
the Taking, and Landlord shall repair any damage to
the Premises or the Building resulting from such
Taking. All sums awarded or agreed upon between
Landlord and the condemning authority for the
taking of the interest of Landlord or Tenant,
whether as damages or as compensation, shall be the
property of Landlord.
FIRE OR OTHER 15. a. Repair Estimate. If the Premises
CASUALTY ---------------
or the Building are damaged by fire or other
casualty (a "Casualty"), Landlord shall, within
--------
sixty (60) days after such Casualty, deliver to
Tenant a good faith estimate (the "Damage Notice")
-------------
of the time needed to repair the damage caused by
such Casualty.
15
<PAGE>
b. Landlord's and Tenant's Rights. If a
------------------------------
material portion of the Premises or the Building is
damaged by Casualty such that Tenant is prevented
from conducting its business in the Premises in a
manner reasonably comparable to that conducted
immediately before such Casualty and Landlord
estimates that the damage caused thereby cannot be
repaired within one hundred eighty (180) days
after the commencement of repair, then Tenant may
terminate this Lease by delivering written notice
to Landlord of its election to terminate within
thirty (30) days after the Damage Notice has been
delivered to Tenant. If Tenant does not terminate
this Lease, then (subject to Landlord's rights
under Section 15c.) Landlord shall repair the
Building or the Premises, as the case may be, as
provided below, and Basic Rental and Excess
Operating Expense for the portion of the Premises
rendered untenable by the damage shall be abated on
a reasonable basis from the date of damage until
the completion of the repair, unless Tenant caused
such damage, in which case, Tenant shall continue
to pay Rent without abatement.
c. Landlord's Rights. If a Casualty
-----------------
damages a material portion of the Building, and
Landlord makes a good faith determination that
restoring the Premises would be uneconomical, or if
Landlord is required to pay any insurance proceeds
arising out of the Casualty to Landlord's
Mortgagee, then Landlord may terminate this Lease
by giving written notice of its election to
terminate within thirty (30) days after the Damage
Notice has been delivered to Tenant, and Basic
Rental and Excess Operating Expense hereunder shall
be abated as of the date of the Casualty.
d. Repair Obligation. If neither party
-----------------
elects to terminate this Lease following a
Casualty, then Landlord shall, within a reasonable
time after such Casualty, commence to repair the
Building and the Premises and shall proceed with
reasonable diligence to restore the Building and
Premises to substantially the same condition as
they existed immediately before such Casualty;
however, Landlord shall not be required to repair
or replace any part of the furniture, equipment,
fixtures, and other improvements which may have
been placed by, or at the request of, Tenant or
other occupants in the Building or the Premises,
and Landlord's obligation to repair or restore the
Building or Premises shall be limited to the extent
of the insurance proceeds actually received by
Landlord for the Casualty in question.
TAXES 16. Tenant shall be liable for all taxes levied
or assessed against the property, furniture, or
fixtures, on above Building standard tenant
improvements, placed by Tenant in the Premises and
all taxes relating to the operation of Tenant's
business in the Premises including, without
limitation, all withholding taxes and sales and use
taxes. If any taxes for which Tenant is liable are
levied or assessed against Landlord or Landlord's
property and Landlord elects to pay the same, or if
the assessed value of Landlord's property is
increased by inclusion of such personal property,
furniture or fixtures, or above Building standard
tenant improvements, and Landlord elects to pay the
taxes based on such increase, then Tenant shall pay
to Landlord, upon demand, that part of such taxes
for which Tenant is primarily liable hereunder.
EVENTS OF l7. Each of the following occurrences shall
DEFAULT constitute an ("Event of Default"):
----------------
a. Tenant's failure to pay Rent from
Tenant to Landlord under the Lease when due,
provided that Landlord shall not exercise any
remedies with respect to such Event of Default
unless the same remains uncured for a period of
five (5) days after Landlord has
16
<PAGE>
issued written notice thereof, provided further, however, that
Landlord may exercise any such remedies without any obligation of
Landlord to issue any notice if Landlord has issued Tenant
written notice under Section l7a. on more than two (2) occasions
during the 12-month interval preceding such failure by Tenant.
b. Tenant's failure to perform, comply with, or observe
any other agreement or obligation of Tenant under this Lease;
provided that Landlord shall not exercise any remedies with
respect to such Event of Default unless the same remains uncured
for a period of fifteen (15) days after Landlord delivers to
Tenant written notice thereof;
c. The filing of a petition by or against Tenant (the term
"Tenant" shall include, for the purpose of this Section l7c, any
guarantor of the Tenant's obligations hereunder) (i) in any
bankruptcy or other insolvency proceeding; (ii) seeking any
relief under any state or federal debtor relief law; (iii) for
the appointment of a liquidator or receiver for all or
substantially all of Tenant's property or for Tenant's interest
in this Lease; or (iv) for the reorganization or modification of
Tenant's capital structure; provided, however, if such petition
is filed against Tenant, then such filing shall not be an Event
of Default unless Tenant fails to have the proceedings initiated
by such petition dismissed within sixty (60) days after the
filing thereof; and provided further, however, that an event
described in this Section 17c. shall not constitute an Event of
Default if applicable law provides that such event cannot be the
basis of a default hereunder;
d. Tenant shall vacate or abandon any portion of the
Premises.
e. The admission by Tenant that it cannot meet its
obligations as they become due or the making by Tenant of an
assignment for the benefit of its creditors; or
f. Any representation or warranty made by Tenant, or made
by any guarantor of Tenant's obligations hereunder, was
materially false or inaccurate when made.
g. If Tenant vacates Demised Premises and attempts to
sublease while paying rent, such occurrence will not be an Event
of Default.
REMEDIES 18. Upon any Event of Default, Landlord may, in addition to
all other rights and remedies afforded Landlord hereunder or by
law or equity, take any of the following actions:
a. Terminate this Lease by giving Tenant written notice
thereof, in which event, Tenant shall pay to Landlord the sum of
(i) all Rent accrued hereunder through the date of termination,
(ii) all amounts due under Section 19a, and (iii) an amount equal
to (A) the total Rent that Tenant would have been required to pay
for the remainder of the Term discounted to present value at a
per annum rate equal to the "Prime Rate" as published on the date
this Lease is terminated by the Wall Street Journal in its
-------------------
listing of "Money Rates", minus (B) the then present value of the
amount of such total Rent that Tenant proves could have been
reasonably avoided, similarly discounted, but in no event shall
the amount determined pursuant to this item (iii) operate to
reduce the sum of item (i) and (ii) above; or,
b. Terminate Tenant's right to possession of the
17
<PAGE>
Premises without terminating this Lease by giving
notice thereof to Tenant, in which event Tenant
shall pay to Landlord (i) all Rent and other
amounts accrued hereunder to the date of
termination of possession, (ii) all amounts due
from time to time under Section 19a., and (iii) all
Rent and other sums required hereunder to be paid
by Tenant during the remainder of the Term,
diminished by any net sums thereafter received by
Landlord through reletting the Premises during such
period. Landlord shall not be liable for, nor shall
Tenant's obligations hereunder be diminished
because of, Landlord's failure to relet the
Premises or to collect rent due for such reletting.
Tenant shall not be entitled to the excess of any
consideration obtained by reletting over the Rent
due hereunder. Reentry by Landlord in the Premises
shall not affect Tenant's obligations hereunder for
the unexpired Term; rather, Landlord may, from time
to time, bring action against Tenant to collect
amounts due by Tenant, without the necessity of
Landlord's waiting until the expiration of the
Term. Unless Landlord delivers written notice to
Tenant expressly stating that it has elected to
terminate this Lease, all actions taken by Landlord
to exclude or dispossess Tenant of the Premises
shall be deemed to be taken under this Section l8b.
If Landlord elects to proceed under this
Section 18b., it may at any time elect to terminate
this Lease under Section 18a.
c. Additionally, Landlord may, without
notice, enter upon the Premises and alter locks or
other security devices at the Premises to deprive
Tenant, its officers, employees, agents, invitees,
licensees and all other occupants, of access
thereto, and Landlord shall not be required to
provide a new key or right of access to Tenant.
PAYMENT BY l9. a. Payment by Tenant. Upon any Event of
TENANT; NON- -----------------
WAIVER Default, Tenant shall pay to Landlord all
reasonable costs incurred by Landlord (including
court costs at all trial and appellate levels and
attorney's fees and expenses, regardless of whether
suit is filed) in (i) obtaining possession of the
Premises, (ii) removing and storing Tenant's or any
other occupant's property, (iii) repairing,
restoring, altering, remodeling, or otherwise
putting the Premises into condition acceptable to
a new tenant, (iv) if Tenant is dispossessed of the
Premises and this Lease is not terminated, relating
all or any part of the Premises (including
brokerage commissions, cost of tenant finish work,
and other costs incidental to such reletting), (v)
performing Tenant's obligations which Tenant failed
to perform, and (vi) enforcing, or obtaining advice
of, its rights, remedies, and recourses arising out
of the Event of Default.
b. No Waiver. Landlord's acceptance of
---------
Rent following an Event of Default shall not waive
Landlord's rights regarding such Event of Default.
No waiver by either party of any violation or
breach of any of the items contained herein shall
waive either party's rights regarding any future
violation of such term or violation of any other
term,
SURRENDER OF 20. No act by Landlord shall be deemed an
PREMISES acceptance of a surrender of the Premises, and no
agreement to accept a surrender of the Premises
shall be valid unless the same is made in writing
and signed by Landlord. At the expiration or
termination of this Lease, Tenant shall deliver to
Landlord the Premises with all improvements located
thereon in good repair and condition, reasonable
wear and tear (and condemnation and fire or other
casualty damage not caused by Tenant, as to which
Sections 14 and 15 shall control) excepted, and
shall deliver to Landlord all keys to the Premises.
Provided that Tenant has performed all of its
obligations hereunder, Tenant may remove all trade
fixtures and all unattached furniture and personal
property placed in the Premises by Tenant (but
Tenant shall not remove any such item which was
paid for, in
18
<PAGE>
whole or in part, by Landlord), and shall remove
such alterations, additions, improvements, trade
fixtures, equipment, and furniture as Landlord may
request. Tenant shall repair all damage caused by
such removal. All items not so removed shall be
deemed to have been abandoned by Tenant and may be
appropriated, sold, stored, destroyed, or otherwise
disposed of by Landlord without notice to Tenant
and without any obligation to account for such
items. The provisions of this Section 21 shall
survive the end of the Term.
HOLDING OVER 21. If Tenant fails to vacate the Premises at
the end of the Term, then Tenant shall be a tenant
at will and, in addition to all other damages and
remedies to which Landlord may be entitled for such
holding over, Tenant shall pay, in addition to the
other Rent, a daily Basic Rental equal to the
greater of (a) 150% of the daily Basic Rental
payable during the last month of the Term, or (b)
the prevailing rental rate in the Building for
similar space. In the event of any unauthorized
holding over, Tenant shall be liable to Landlord
for all damages which Landlord suffers as a result
thereof and Tenant shall indemnify Landlord against
all claims made by any other tenant or prospective
tenant against Landlord resulting from delay by
Landlord in delivering possession of the Premises
to such other tenant or prospective tenant.
CERTAIN RIGHTS 22. Landlord shall have the following rights:
RESERVED BY
LANDLORD a. To decorate and to make inspections,
repairs, alterations, additions, changes, or
improvements, whether structural or otherwise, in
and about the Building, or any part thereof, for
such purposes, to enter upon the Premises and,
during the continuance of any such work, to
temporarily close doors, entryways, public space,
and corridors in the Building; to interrupt or
temporarily suspend Building services and
facilities; and to change the arrangement and
location of entrances or passageways, doors, and
doorways, corridors, elevators, stairs, restrooms,
or other public parts of the Building provided,
however, that Landlord shall use reasonable effort
not to substantially interfere in the conduct of
Tenant's business;
b. To take such reasonable measures as
Landlord deems advisable for the security of the
Building and its occupants, including without
limitation searching all persons entering or
leaving the Building; evacuating the Building for
cause, suspected cause, or for drill purposes,
temporarily denying access to the Building; and
closing the Building after normal business hours
and on Saturdays, Sundays, and holidays, subject,
however, to Tenant's right to enter when the
Building is closed after normal business hours
under such reasonable regulations as Landlord may
prescribe from time to time which may include by
way of example, but not of limitation, that persons
entering or leaving the Building, whether or not
during normal business hours, identify themselves
to a security officer by registration or otherwise
and that such persons establish their right to
enter or leave the Building provided, however, that
Landlord shall use reasonable effort not to
substantially interfere in the conduct of Tenant's
business;
c. To change the name by which the
Building is designated; and
d. To enter the Premises, upon
reasonable notice except in emergency, to inspect
same to assure Tenant's compliance with its
obligations hereunder or show the Premises to
prospective purchasers, lenders or tenants and to
perform all services, maintenance and repairs
19
<PAGE>
required to be performed by Landlord hereunder.
Except in case of emergencies, Landlord shall give
reasonable advance notice of need to enter the
Premises.
MISCELLANEOUS 23. a. Landlord Transfer. If any landlord
-----------------
hereunder transfers the Building or Shopping Center
or such landlord's interest therein, then such
landlord shall not be liable for any obligation or
liability based on or arising out of any event or
condition occurring after such transfer. Tenant
shall attorn to such transferee amid, within ten
(10) days after request, shall execute, acknowledge
and deliver any document submitted to Tenant
confirming such attornment.
b. Landlord's Default and Liability.
--------------------------------
Landlord, its employees and agents shall not be
liable to Tenant, any Invitee or any other person
or entity for any damage (including, without
limitation, indirect and consequential damage),
inquiry, loss or claim (including, without
limitation, claims for the interruption of or loss
to business) based on or arising out of any cause
whatsoever (except as otherwise specified in this
Section), including, without limitation, the
following: repair to any portion of the Premises or
the Building; interruption in the use of the
Premises or any equipment therein; any accident or
damage resulting from any use or operation (by
Landlord, Tenant or any other person or entity) of
elevators or heating, cooling, electrical,
sewerage, or plumbing or mechanical equipment or
apparatus; termination of this Lease by reason of
damage to the Premises or the Building; fire,
robbery, theft, vandalism, mysterious disappearance
or any other casualty; actions of any other tenant
of the Building or of any other person or entity;
failure or inability to furnish any service
specified in this Lease; and leakage in any part of
the Premises or the Building from water, rain, ice,
snow or other cause that may leak into, or flow
from, any part of the Premises or the Building or
the Land, or from drains, pipes or plumbing
fixtures in the Premises or the Building or the
Land. If any condition exists which may be the
basis of a claim of constructive eviction, then
Tenant shall give Landlord written notice thereof
and a reasonable opportunity to correct such
condition, and in the interim Tenant shall not
claim that it has been constructively evicted or is
entitled to a rent abatement. Any property placed
by Tenant or Invitees in or about the Premises, the
Building or the Land shall be at the sole risk of
Tenant, and Landlord shall not in any manner be
responsible therefor. If any employee of Landlord
receives any package or article delivered for
Tenant, then such employee shall be acting as
Tenant's agent for such purpose and not as
Landlord's agent. Notwithstanding, the foregoing
provisions of this Section, Landlord shall not be
released from liability to Tenant for any physical
injury to any natural person caused by Landlord's
willful misconduct or gross negligence to the
extent such injury is not covered by insurance (a)
carried by Tenant or such person, or (b) required
by this Lease to be carried by Tenant. Tenant shall
reimburse Landlord for, and shall indemnify, defend
upon request and hold Landlord, its employees and
agents harmless from and against, all costs,
damages, claims, liabilities, expenses (including
attorneys' fees), loss and court costs suffered by
or claimed against Landlord, directly or
indirectly, based on or arising out of, in whole or
in part, (a) use and occupancy of the Premises or
the business conducted therein, (b) any act or
omission of Tenant or any Invitee, (c) any breach
of Tenant's obligations under this Lease,
including failure to surrender the Premises upon
the expiration or earlier termination of the Lease
Term, or (d) any entry by Tenant or any Invitee
upon the Land prior to the Lease Commencement Date,
Tenant shall not have the right to offset or deduct
any amount allegedly owed to Tenant pursuant to any
claim against Landlord from any rent or other sum
payable to Landlord, Tenant's solo remedy for
recovering upon such claim shall he to institute an
20
<PAGE>
independent action against Landlord. If Tenant or
any Invitee is awarded a money judgment against
Landlord, then recourse for satisfaction of such
judgment shall be limited to execution against
Landlord's estate and interest in the Building and
the Land. No other asset of Landlord, any partner,
director, member, or officer of Landlord
(collectively, "Officer") or any other person or
entity shall be available to satisfy or subject to
such judgment, nor shall any Officer or other
person or entity have personal liability for
satisfaction of any claim or judgment against
Landlord or any Officer.
c. Force Majeure. Other than for
-------------
Tenant's monetary obligations under this Lease,
whenever a period of time is herein prescribed for
action to be taken by either party hereto, such
party shall not be liable or responsible for, and
there shall be excluded from the computation for
any such period of time, any delays due to strikes,
riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations, or
restrictions, or any other causes of any kind
whatsoever which are beyond the control of such
party. Any elimination or shutting off of light,
air, or view by any structure which may be erected
on lands adjacent to the Building shall in no way
affect this Lease or impose any liability on
Landlord.
d. Criminal Acts of Third Parties. Any
------------------------------
security guards or security services provided by
Landlord for the Building, Appurtenant Facilities
or Land are provided for the protection of
Landlord's property. Tenant shall be responsible
for the protection of Tenant and Tenant's
employees, agents, contractors; invitees and
licensees and their property against criminal acts
of third parties. Landlord shall not be liable to
Tenant or any other party for criminal acts of
third parties whether or not such acts are
foreseeable. Tenant shall contact the local police
and rely on the local police for protection against
criminal acts.
e. Brokerage. Landlord and Tenant each
---------
warrant to the other that it has not dealt with any
broker or agent in connection with the negotiation
or execution of this Lease other than the Broker
(if any). Tenant and Landlord shall each indemnify
the other against all costs, expenses, attorneys'
fees and other liability for commissions or other
compensation claimed by any broker or agent other
than the Broker (if any) claiming the same by,
through, or under the indemnifying party.
f. Estoppel Certificates. From time to
---------------------
time, Tenant shall furnish to any party designated
by Landlord, within ten (10) days after Landlord
has made a request therefor, a certificate signed
by Tenant confirming and containing such factual
certifications and representations as to this Lease
as Landlord may reasonably request.
g. Notices. All notices and other
-------
communications given pursuant to this Lease shall
be in writing and shall be (i) mailed by first
class, United States Mail (or Canada Mail, as
appropriate), postage prepaid, certified, with
return receipt requested, and addressed to the
parties hereto at the address specified in the
Basic Lease Information, (ii) hand delivered to the
intended address, or (iii) sent by prepaid
telegram, cable, facsimile transmission, or telex
followed by a confirmatory letter. Notice sent by
certified mail, postage prepaid, shall be effective
three (3) business days after being deposited in
the United States Mail (or Canada mail, as
appropriate); all other notices shall be effective
upon delivery to the address of the addressee. The
parties hereto may change their addresses by giving
notice thereof to the other in conformity with this
provision.
21
<PAGE>
h. Severability. If any clause or
------------
provisions of this Lease is illegal, invalid, or
unenforceable under present or future laws, then
the remainder of this Lease shall not be affected
thereby and in lieu of such clause or provision,
there shall be added as a part of this Lease a
clause or provision as similar in terms to such
illegal, invalid, or unenforceable clause or
provisions as may be possible and be legal, valid,
and enforceable.
i. Amendments; and Binding Effect. This
------------------------------
Lease (including all Exhibits hereto) constitutes
the entire agreement between Landlord and Tenant
and supersedes all prior discussions and agreements
of the parties relating to the Premises and the
Building. This Lease may not be amended except by
instrument in writing signed by Landlord and
Tenant. Whenever any approval or consent of the
Landlord is required, such approval or consent
shall not be binding on Landlord unless expressed
in writing and executed by an authorized
representative of Landlord. No provision of this
Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing signed by
Landlord, and no custom or practice which may
evolve between the parties in the administration of
the terms hereof shall waive or diminish the right
of Landlord to insist upon the performance by
Tenant in strict accordance with the terms hereof.
The terms and conditions contained in this Lease
shall inure to the benefit of and be binding upon
the parties hereto, and upon their respective
successors in interest and legal representatives,
except as otherwise herein expressly provided. This
Lease is for the sole benefit of Landlord and
Tenant, and, other than Landlord's Mortgagee, no
third party shall be deemed a third party
beneficiary hereof;
j. Quiet Enjoyment. Provided Tenant has
---------------
performed all of the terms and conditions of this
Lease to be performed by Tenant, tenant shall
peaceably and quietly hold and enjoy the Premises
for the Term, without hindrance from Landlord or
any party claiming by, through, or under Landlord,
subject to the terms and conditions of this Lease.
k. Joint and Several Liability. If
---------------------------
there is more than one Tenant, then the obligations
hereunder imposed upon Tenant shall be joint and
several. If there is a guarantor of Tenant's
obligations hereunder, then the obligations
hereunder imposed upon Tenant shall be the joint
and several obligations of Tenant and such
guarantor, and Landlord need not first proceed
against Tenant before proceeding against such
guarantor nor shall any such guarantor be released
from its guaranty for any reason whatsoever.
l. Captions. The captions contained in
--------
this Lease are for convenience of reference only,
and do not limit or enlarge the terms and
conditions of this Lease.
m. No Merger. There shall be no merger
---------
of the leasehold estate hereby created with the fee
estate in the Premises or any part thereof if the
same person acquires or holds, directly or
indirectly, this Lease or any, interest in this
Lease and the fee estate in the leasehold Premises
or any interest in such fee estate.
n. No Offer. The submission of this
--------
Lease to Tenant shall not be construed as an offer,
nor shall Tenant have any rights under this Lease
unless Landlord executes a copy of this Lease and
delivers it to Tenant.
o. No Rights to Use of Building Name.
---------------------------------
Tenant shall have no interest in, or rights to the
name of the Building. Landlord will
22
<PAGE>
have the right, exercisable upon written notice and
without liability to any tenant, to change the name
and street address of the Building. Tenant shall
not engage in any advertising mentioning the
Building without the prior written consent of
Landlord. Landlord shall have the right to prohibit
any advertising by Tenant mentioning the Building
that, in Landlord's opinion tends to impair the
reputation of the Building or its desirability as a
building for offices, and upon written notice from
Landlord, Tenant will refrain from or discontinue
such advertising.
p. Time of Essence. Except as provided
---------------
in Section 23c. hereof, time is of the essence of
this Lease and each and all of its provisions in
which performance is a factor.
q. Authority of Parties. If Tenant is a
--------------------
corporation, limited partnership, partnership,
trust or other entity, each person executing this
Lease on behalf of said entity represents and
warrants to Landlord that such person is duly
authorized to execute and deliver this Lease on
behalf of said entity in accordance with all laws
and documents which determine and limit the
operation of such entity and that this Lease is
binding upon said entity in accordance with its
terms.
r. Governing Law. This Lease shall be
-------------
governed by the laws of the state in which the
Premises are located.
s. Right of First Offer. Landlord
--------------------
agrees that, in the event the tenant of the second
floor of the Building does not exercise its option
to renew its lease and this Lease shall then be in
full force and effect, free from any default on the
part of Tenant, Landlord will notify Tenant of
Landlord's intent to lease the second floor and
will for a period of fifteen (15) days first
negotiate in good faith with Tenant of this Lease
upon terms and conditions mutually agreeable to the
parties hereto. In the event the parties hereto
shall not reach as to such terms and conditions
prior to the expiration of such fifteen (15) day
period, Landlord shall have no further liability or
obligation to Tenant in respect of this section and
Landlord shall have the right to lease all or any
part of the second floor to such other person(s)
and upon such terms and conditions as shall be
satisfactory to Landlord, in its sole and absolute
discretion, without regard to whether such terms
are more favorable to such tenant(s) than those
offered by Tenant during the foregoing period of
negotiation. Tenant shall have the above right of
first offer only for one time and shall not have
any other right in the future. Tenant's rights
under this section shall terminate if (i) this
Lease or Tenant's right to possession of the
Premises is terminated, or (ii) Tenant assign any
of its interest in this Lease or sublets any
portion of the Premises.
t. Option to Terminate. If (i) this
-------------------
Lease shall then be in full force and effect, and
(ii) Tenant shall not then be in default
thereunder, Tenant shall have the option to (a)
terminate this Lease effective at the end of the
thirty eighth (38th) month by providing Landlord
with at least nine (9) months prior written notice
and payment of penalty equal to six (6) months rent
of the period immediately after the effective date
of termination or (b) terminate this Lease at the
end of the fiftieth (50th) month by providing
Landlord with at least six (6) months prior written
notice and payment of a penalty equal to three (3)
months rent of the period immediately after the
effective date of termination. Payment of penalty
shall be made on or before the effective date of
termination otherwise Landlord shall have an option
to ignore the termination notice and consider this
Lease as being in effect as long as he wishes until
the term of this Lease expires.
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<PAGE>
u. Signage. Tenant will be recognized
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as a building tenant on the sign board in the main
lobby. Suite entry signage shall be included in the
cost of Tenant Improvements. Furthermore, subject
to applicable law, the approval of Architectural
Review Board of Town of Herndon, and the Landlord's
prior written approval as to plan, specifications
and location, Tenant may erect, as its sole cost,
an exterior wall sign, not to exceed 15.00 square
feet, on the side of the Building facing Herndon
parkway which would refer to Tenant's name. Such
sign shall be installed by a contractor approved by
Landlord and shall be considered as a Tenant
improvement/alteration provided for in Paragraph 8
above.
v. Satellite Dish. Subject to
--------------
applicable law, the approval of appropriate city
and county authorities, and the Landlord's prior
written approval as to plan, specifications and
location, Tenant may erect, as its sole cost, a
satellite dish on the roof of the Building. Such
satellite dish shall be installed by a contractor
approved by Landlord and shall be considered as a
Tenant improvement/alteration provided for in
Paragraph 8 above. Tenant shall be responsible for
all the cost and risks and liability of operation
of such Satellite as well as buying adequate
insurance policy for it.
w. Exhibits. All exhibit and
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attachments attached hereto are incorporated herein
by this reference.
Exhibit A - Outline of Premises
Exhibit B - Building Rules and Regulations
Exhibit C - Form of Letter of Credit
Exhibit D - Option to Renew
SPECIAL 24. a. Condition. Tenant accepts the
PROVISIONS Premises in their "as is" condition on the date
this Lease is executed, except for the Tenant
Improvement to be carried on by Landlord.
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES
ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE. TENANT'S OBLIGATION TO
PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE
PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT
ABATEMENT, SETOFF, DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS
DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
EXECUTED effective as of the Lease Date set forth in the Basic Lease
Information.
LANDLORD:
Date of Execution: SOVRAN LIMITED COMPANY
6/14/99 By /s/ Mahmound Katirai
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Name: Mahmound Katirai
Title: President
TENANT:
Date of Execution: LIFEMINDERS.COM INC.
6/14/99 By /s/ SIGNATURE APPEARS HERE (SEAL)
------------------ ---------------------------
Name:
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