Attached files
Exhibit 10.1
COMMERCIAL OFFICE LEASE
THIS COMMERCIAL OFFICE LEASE AGREEMENT (this "Lease") is made as of the day of
the 11th day of February, 2011, by and between BDC WICOMICO LLC, hereinafter
referred to as "Landlord" and SAVWATT USA, INC., a Delaware corporation,
hereinafter referred to as "Tenant".
WITNESSETH, that for and in consideration of the rent hereafter reserved,
and the covenants contained herein, the parties hereby agree as follows:
Lease Premises.
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord for
the term identified below, at the rental and upon the conditions set forth
herein, approximately twenty-four thousand five hundred sixty-one (24,561)
rentable square feet consisting of fourteen thousand two hundred sixty-six
(14,266) rentable square feet known as Suite 700 ("Premises A") and ten thousand
two hundred ninety-five (10,295) rentable square feet known as Suite 720
("Premises B") and identified on Exhibit A attached hereto (the "Premises") of
that certain building located at 1100 Wicomico Street, Baltimore, Maryland 21230
(the "Building") (if there is more than one building on Landlord's land operated
as part of a common complex, then reference to "Building" hereunder shall mean
and refer to all such buildings). The parcel(s) of real property on which the
Building is located together with the Building are hereinafter collectively
referred to as the "Property." The Premises do not include exterior faces of
exterior walls and exterior window glass; anything beyond the interior face of
demising walls; or any pipes, ducts, conduits, wires and fixtures serving other
parts of the Building, except for Tenant-specific pipes, ducts, conduits, wires
and fixtures which are wholly located within and serve only the Premises, and
measurement will be based on the BOMA standard of measurement dated June 7, 1996
(ANSI/BOMA Z65.1-1996). Tenant may use the common areas of the Building in
common with other tenants subject to and in accordance with the terms and
conditions hereinafter set forth. The common areas (the "Commons Areas") include
the Building's common lobbies, corridors, stairways, and elevators, the common
walkways and driveways necessary for access to the Building, the common toilets,
corridors and elevator lobbies of any multi-tenant floor, and the parking area
for the Building. All use of the Common Areas shall be only upon the terms set
forth at any time by Landlord. Tenant acknowledges and agrees that the roof of
the Building is under the exclusive control of Landlord, that Tenant shall have
no access to the roof without Landlord's prior written consent and that Landlord
reserves the right from time to time to install or allow the installation of
telecommunications devices on the roof.
2. Term and Possession.
2.1 Term. Subject to the terms and conditions set forth in this Lease, the
term (the "Term") of this Lease shall be for approximately ten (10) years,
commencing on February 1, 2011, and ending on January 31, 2021, provided however
that the term of the Lease for Premises B shall not commence until May 1, 2011
(but the expiration date for all premises shall be January 31, 2021). Said
commencement date is hereinafter referred to as the "Commencement Date".
2.2 Possession. Landlord shall reasonably attempt to deliver possession of
portion of the Premises known as Premises A on February 1, 2011, the anticipated
date of commencement (the "Anticipated Commencement Date Premises A"). Landlord
shall reasonably attempt to deliver possession of the portion of the Premises
known as Premises B on May 1, 2011 (the "Anticipated Commencement Date Premises
B"). If Landlord should be unable to deliver possession of Premises A or
Premises B to the Tenant on the applicable Anticipated Commencement Date or
thereafter for any reason. Landlord shall not be subject to any liability,
claims or damages for failure to give possession on said date and this Lease
shall not be terminated or terminable by reason of such delay. Under such
circumstances, the commencement date tor Premises A or Premises B, as the case
may he, shall not be deemed to have occurred until the possession of the
Premises is tendered by Landlord which may be confirmed by Landlord's delivery
of notice to Tenant that possession has been delivered. provided, however, that
in the event any delay in tendering possession to the Tenant beyond the
applicable Anticipated Commencement Date is caused by any act, delay or omission
of Tenant, its employees, agents, contractors or invitees, Tenant shall remain
obligated to commence paying rent hereunder with respect to Premises A or
Premises B, as the case maybe, beginning on the earlier to occur of (i) the
applicable Anticipated Commencement Date or (ii) the date the Landlord would
have tendered possession of the Premises to Tenant absent such act, delay or
omission. If permission is given to the Tenant to enter into possession of the
applicable Premises, or to occupy space other than the applicable Premises prior
to the applicable Anticipated Commencement Date, Tenant covenants and agrees
that such occupancy shall be deemed to be under all the terms, covenants and
conditions of the provisions of this Lease, and that the Rent shall commence on
such date. Tenant covenants and agrees to execute and deliver such documentation
as Landlord may reasonably require confirming the applicable Commencement Date
and such other matters as Landlord or any lender may reasonably request. In
addition. Landlord may elect to send a letter establishing the applicable
Commencement Date (if not a specific calendared date under Section 2.1), which
shall be binding for all purposes unless Tenant sends written notice of
objection within five (5) business days of receipt. It is Tenant's obligation to
coordinate pick-up of keys to the Premises in connection with tender of delivery
by Landlord.
2.3 Acceptance of Premises. Tenant acknowledges that the Premises will be
delivered and accepted in its then "as is," "where is" condition with no
expectation that Landlord will or should perform or otherwise contribute towards
the cost of any leasehold improvements, except that Landlord shall remove the
interior partition walls and all debris from Premises B. The Premises shall be
delivered with all systems in "good working order" (e.g. if the heat is working,
the heating system shall be deemed in good working order), and if not in good
working order as of the Commencement Date, Tenant shall notify Landlord within
five (5) days thereof and then Landlord shall repair the same to good working
order (and thereafter the other provisions of the Lease shall govern maintenance
responsibilities). Tenant shall have the right to inspect all systems.
2.4 Special Light Installation. Tenant shall have the right to install and
maintain, at its sole cost and expense, two (2) SavWatt Eco-Pole street lights
on the Property, the size, shape, appearance and location of said lights subject
to Landlord's approval. Unless Landlord directs otherwise, Tenant shall remove,
at its sole cost and expense, said street lights upon expiration or earlier
termination of the Lease or upon Landlord's request following Tenant Default.
3. Rent.
3.1 Basic Monthly Rent. Upon Tenant's execution of the Lease, Tenant shall
prepay one full month of Basic Monthly Rent to be applied to the first
installment(s) thereof due hereunder (i.e. a full monthly installment for the
entire Premises). Thereafter, Tenant covenants and promises to pay to Landlord
for the Premises, the Basic Monthly Rent without deduction or demand or set off
whatsoever, in lawful money of the United States of America, in advance on the
first day of each calendar month during the Term hereof, to and at the office of
Bernstein Management Corporation (the "Agent"), 5301 Wisconsin Avenue NW, Suite
600, Washington, DC 20015, or at such other place as Landlord may from time to
time designate to Tenant in writing. In addition to the Basic Monthly Rent,
Tenant shall pay all Additional Rent and other amounts payable hereunder in
lawful money of the United States of America, each without set-off, deduction,
offset or counterclaim, in accordance with the terms set forth herein. Except as
specified elsewhere in this Lease, Additional Rent shall be paid by Tenant with
the next monthly installment of Basic Monthly Rent falling due. Rent checks
shall be made payable to Bernstein Management Corporation, or to such other
party as Landlord shall direct. Should the Commencement Date fall on a day other
than the first day of a calendar month or the Term expire on a day other than
the last day of a calendar month, the parties agree that the monthly rental for
such partial calendar month in the Term shall be pro-rated. The basic monthly
rent ("Basic Monthly Rent") is payable monthly as follows:
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Premises A Premises B Total Basic Monthly Rent
---------- ---------- ------------------------
February 1, 2011 - April 30, 2011 Abated N/A Abated
May 1, 2011 - January 3 1,2012 Abated Abated Abated
February 1, 2012 - January 31, 2013 $5,765.84 per month $4, 160.90 per month $9,926.74 per month
February 1, 2013 - January 31, 2016 $6,716.91 per month $4,847.23 per month $11, 564. 14 per month
February 1, 2016 -January 31, 2019 $7,275.66 per month $5,250.45 per month $12,526.11 per month
February 1, 2019 -January 31, 2021 $7,870.08 per month $5,679.41 per month $13,549.49 per month
In the event that any portion of the Term falls beyond the ending date in
the chart above, the Basic Monthly Rent applicable for such portion shall be the
Basic Monthly Rent for the last period listed. escalated at the same rate as the
Basic Monthly Rent for such last period was escalated; provided, however, that
Basic Monthly Rent for any extension or renewal term shall be determined in
accordance with the extension or renewal provisions.
3.2 Additional Rent.
32.1 Tenant shall pay to Landlord, in accordance with Section 3.2.3 below,
as Additional Rent, "Tenant's Share" defined as the sum of Tenant's Separate
Services (as hereinafter defined) plus, beginning one (1) year after the
Commencement Date, Tenant's Pro Rata Share (as hereinafter defined) of any
increase in landlord's Costs (as hereinafter defined) above the Base Costs (as
hereinafter defined); provided however, that to the extent Tenant has paid
Tenant Utility Charges directly to the utility provider, then Tenant shall not
be required to pay Landlord in duplicate for such directly paid Tenant Utility
Charges. All sums of any type or kind, other than Basic Monthly Rent, required
to be paid by Tenant to Landlord hereunder shall be deemed to be Additional Rent
whether or not the same may be designated as such herein.
3.2.2 For purposes of this Lease:
(i) "Tenant's Separate Services" shall mean all Operating Expenses which
are attributable solely to Tenant's use and occupancy of the Premises, such as
the Tenant Utility Charges (hereinafter defined), special janitorial services or
other services provided by Landlord at Tenant's request. Landlord has the right
to require Tenant to separately meter or submeter above building standard
electric, water and gas utilities at Tenant's expense.
(ii) "Tenant's Pro Rata Share" shall mean four and 26/100 percent (4.26%),
representing the ratio that the rentable area of the Premises (14,266 square
feet) bears to the total rentable area of the Building (334,664 square feet). As
of May 1, 2011, "Tenant's Pro Rata Share" shall mean seven and 34/100 percent
(7.34%), representing the ratio that the rentable area of the Premises (24,561
square feet) bears to the total rentable area of the Building (334,664 square
feet).
(iii) "Landlord's Costs" shall mean Taxes and Assessments and Operating
Expenses but excluding those Operating Expenses paid by Tenant as Tenant's
Separate Services.
(iv) "Taxes and Assessments" shall mean all taxes and assessments and
governmental charges (including personal property and real estate taxes),
whether federal, state, county or municipal, and whether they be assessed or
levied by taxing districts or authorities presently taxing the Property or by
others subsequently created, and any other taxes and assessments (including
franchise taxes) attributable to the Property or its operation, whether or not
directly paid by Landlord, excluding, however, federal and state taxes on income
of the Landlord, unless such income taxes replace real estate taxes. The Tenant
shall be responsible for ad valorem taxes on its personal property. If at any
time during the Term the methods of taxation shall be altered so that in
addition to or in lieu of or as a substitute for the whole or any part of any
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taxes levied, assessed or imposed there shall be levied, assessed or imposed (i)
a tax. license fee, excise or other charge on the rents received by Landlord
with respect to the Building, or (ii) any other type of tax or other imposition
in lieu of, or as a substitute for, or in addition to, the whole or any portion
of any taxes, then the same shall be included as Taxes and Assessments for the
purposes hereof. A tax bill or true copy thereof, if submitted by Landlord to
Tenant, shall be conclusive evidence of the amount of taxes assessed or levied
as well as of the items taxed. Reasonable expenses (including without limitation
contingency-based fees), including attorneys' fees, expert witness fees and
similar costs, incurred by Landlord in obtaining or attempting to obtain a
reduction of any Taxes and Assessments shall be added to and included in the
amount of any such Taxes and Assessments. Taxes and Assessments which are being
contested by Landlord shall nevertheless be included for purposes of the
computation of the liability of Tenant hereunder, provided, however, that if
Landlord is successful in contesting any such Taxes and Assessments, excess
Taxes and Assessments paid by Tenant shall be applied as a credit toward the
next installment(s) of Taxes and Assessments due. Landlord shall have no
obligation to contest, object to or litigate the levying or imposition of any
Taxes and Assessments and may settle, compromise, consent to, waive or otherwise
determine in its discretion to abandon any contest with respect to the amount of
any Taxes and Assessments without consent or approval of Tenant. The Landlord
acknowledges the Tenant shall be applying to the State of Maryland for job and
project tax credits through those programs offered by the State of Maryland.
Landlord agrees that to the extent Landlord receives credit against real estate
property taxes due to Tenant's application for such tax credits, then provided
Tenant is not in default. Landlord shall provide a credit of equal amount to
Tenant against the next coming rent payment at the time when such credit against
Landlord's obligation to pay real estate property taxes is operative (e.g. if
real estate taxes are payable on March 31st, and Tenant's real estate property
tax credit is established on February 1st. Tenant's rent credit would not apply
until March 31st). If Tenant believes Landlord has received a real property tax
credit as a result of Tenant's application, then Tenant shall notify Landlord
and provide whatever confirming evidence thereof Landlord shall reasonably
request.
(v) "Operating Expenses" shall mean all of the costs and expenses paid or
incurred in operating, managing, administering, servicing, repairing and
maintaining the Building, the Property and surrounding sidewalks, alleys and
parking areas as determined by Landlord in accordance with standard accounting
practices (except that Landlord may amortize an expense over multiple years in
lieu of passing the entirety of such expense thru in the year of its
expenditure), whether paid to employees of Landlord or independent contractors
engaged by Landlord, and shall include the following costs by way of
illustration, but not limitation: water and sewer charges, insurance premiums,
utilities, janitorial services (excluding janitorial services for the Premises),
labor, including direct labor overhead, air conditioning and heating,
landscaping, elevator maintenance, supplies, costs and upkeep of all parking and
common areas, supply and cleaning of uniforms and work clothes, security7 for
the Building, fees incurred for the management of the Building including legal,
inspection, consultation and accounting fees, costs of repair, maintenance and
replacement of exterior roofs, all charges for repair and maintenance of all
mechanical equipment and building systems (exclusive of those Tenant is
obligated to repair and maintain hereunder) and a property management fee equal
to the generally prevailing rate consistent with the type of occupancy and the
services rendered, but not less than three percent (3%) nor more than five
percent (5%) of the total rent collected from tenants of the Property. Operating
Expenses shall not include depreciation of the Building of which the Premises
are a part or equipment therein, mortgage loan payments, executive salaries and
any brokerage commissions but shall include amortization, with reasonable
interest, of capital items which reduce Operating Expenses or are required by
governmental authority. Notwithstanding the foregoing, commencing with the
second full calendar year during the Term, for purposes of Tenant's obligation
for its Pro Rata Share of Landlord's Costs, the Landlord's Costs relating to
Operating Expenses in any year shall not be more than Landlord's Costs relating
to Operating Expenses for the first full calendar year of the Term, compounded
annually at ten percent (10%). For example, if the Landlord's Costs for the
first full calendar year of the Term is $850,000, and the Landlord's Costs for
the second full calendar year is $1,000,000. Tenant shall be responsible for
Tenant's Pro Rata Share (i.e. 7.33%) of $85,000 (which is (i) $935,000 - the
amount equal to $850.000, escalated by 10%, less (ii) $850,000). As an
additional example, suppose the Landlord's Costs for the 2011 calendar year of
the Term is $850,000, Landlord's Costs for the 2012 calendar year is $935,000,
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and Landlord's Costs for the 2013 calendar year is 51,100,000. In such example,
with respect to the 2013 calendar year. Tenant shall be responsible for Tenant's
Pro Rata Share (i.e. 7.33%) of $178,500 ($178,500 equals the difference between
$1,028,500 (which is $850,000, escalated by 10% for 2 years), less 5850,000). It
is understood that Taxes and Assessments are not Operating Expenses.
(vi) "Base Costs" shall mean Landlord's Costs incurred for or attributable
to the 2011 calendar year.
(vii) "Rent" shall mean Basic Monthly Rent and Additional Rent.
(viii) "Tenant Utility Charges" shall mean all utility charges incurred by
Tenant in connection with its use and occupancy of the Premises, including, but
not limited to, electricity, fuel, gas, water, sewer and telephone (including
equipment and installation charges).
3.2.3 (i) Payment of Additional Rent. Tenant shall remit to Landlord as
Additional Rent, simultaneously with the next installment of Basic Monthly Rent,
the amount of any Tenant's Separate Services paid for by Landlord during the
then current month. In addition, beginning the three hundred sixty-fifth (365Ih)
day following the Commencement Date (the "Pass-Through Commencement Date"), and
continuing for each subsequent calendar year or portion thereof during the Term,
Landlord's Costs shall be passed through to Tenant based on the actual increase
over Base Costs. In addition, commencing with the Pass-Through Commencement Date
and thereafter simultaneously with each monthly payment of Basic Monthly Rent
hereunder for the balance of the Term, Tenant shall pay to Landlord an estimated
amount of Additional Rent on account of Landlord's Costs above Base Costs.
Landlord's estimate of Additional Rent payable for any given year shall be equal
to 105% of Landlord's Costs above Base Costs for the immediately preceding year
provided, however, that in the event Landlord determines during the course of
any year that Landlord's Costs for such year shall exceed 105% of such prior
year's costs, (i) Tenant shall, within ten (10) days of receiving a demand
therefor, pay a lump sum to Landlord equal to the excess of (a) the amount which
would have been payable by Tenant based upon such actual higher costs from and
including January 1 of such year through the date of the notice setting forth
the increase in Landlord's Costs over (b) the amount of Additional Rent actually
paid by Tenant for such period and (ii) the monthly payments of Additional Rent
for the balance of such year shall be increased accordingly. For example, if the
Base Costs are $850,000, then Landlord's estimate of Additional Rent for
calendar year 2012 shall be $892,500 (which is equal to $850,000 multiplied by
105%), and on an estimated basis Tenant shall pay Tenant's Pro Rata Share (i.e.,
7.33% of $42,500, the difference between the estimated Additional Rent and the
Base Costs), said amount to be payable monthly in accordance with the terms and
conditions herein.
(ii) Tenant shall pay all Tenant Utility Charges as the same become due and
to immediately transfer all utility accounts into its own name at the
commencement of the Term of this Lease (or whenever Tenant occupies the
Premises, if such occupancy is prior to the commencement of this Lease). If any
such utilities are not separately metered. Tenant shall pay to Landlord, as
Additional Rent, within ten (10) days after Tenant's receipt of Landlord's
written demand therefor, Tenant's allocable share of such utilities as
reasonably determined by Landlord. Tenant's obligations under this Section
3.2.3(ii) are in addition to its obligation to pay its Pro Rata Share of
Operating Expenses under Sections 3.2.1 and 3.2.3(i) above. Notwithstanding the
foregoing, for non-metered heating within the Premises, Tenant shall pay the
agreed amount of $0.40 per square foot per annum, subject to escalations by
Landlord from time to time based on rate increases and Tenant's usage.
3.2.4 Reconciliations. Within a reasonable time after the end of each
calendar year during the Term. Landlord will furnish to Tenant a statement
setting forth the actual amount of any Tenant's Separate Services previously
billed on an estimated basis and of Landlord's Costs actually incurred for the
immediately preceding calendar year together with Tenant's Share thereof
provided, however, that the failure by Landlord to provide such a statement by
any specific date shall not constitute a waiver by Landlord of its right to
require an increase in the Additional Rent for the then current year or provide
Tenant with any defense or setoff against its obligations under this Lease. In
the event that the estimated amount paid by Tenant for such year under Section
3.2.3 (the "Estimated Payments") is less than the actual amount payable by
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Tenant pursuant to such statement (the "Required Amount"), Tenant shall
reimburse Landlord for such deficiency by making a lump sum payment of such
deficiency within ten (10) days following receipt of Landlord's demand therefor.
In the event that the Estimated Payments for any year exceeds the Required
Amount for such year, the excess shall be credited by Landlord to the next
installment! s) of Additional Rent coming due and payable or, in the event such
calendar year is the last year of the Term, remitted by Landlord to Tenant
provided Tenant is not in default of its obligations under this Lease and there
are no damages to the Premises or the remainder of the Property caused by Tenant
or its employees, agents or contractors. The obligations of Landlord and Tenant
under this subsection shall survive the expiration or termination of this Lease.
3.2.5 Pro-Rata Calculation. Should this Lease commence or terminate at any
time other than the first (1st) day of a calendar year, the cost adjustment
referred to in Subsections 3.2.1, 3.2.2, 3.2.3 and 3.2.4 shall be calculated for
the commencement or termination year on a pro rata basis, based upon the number
of calendar days during which Tenant leases or is deemed to lease the Premises.
3.2.6 Tenant's Right to Audit. Each statement provided by Landlord pursuant
to this Section 3.2 shall be conclusive and binding upon Tenant unless fifteen
(15) days after receipt of the statement, Tenant shall notify Landlord that it
disputes the correctness of the statement, specifying the respects in which the
statement is claimed to be incorrect. If Landlord and Tenant are unable to
resolve the dispute. Tenant shall then have the right to request that Landlord
provide, at Tenant's expense, an audit of its books and records relating to the
statement. Pending determination of the dispute. Tenant shall pay within ten
(10) days from notice any amounts due from Tenant in accordance with the
statement, but such payment shall be without prejudice to Tenant's position. If
the dispute shall be resolved in Landlord's favor, Tenant shall pay to Landlord
upon demand all other costs and expenses incurred by Landlord in connection
therewith. Notwithstanding anything contained herein to the contrary, Tenant
shall not be permitted to use any auditor or other consultant paid on a
contingent basis to perform any Tenant audit or examination.
3.2.7 Adjustments to Costs. Notwithstanding any other provisions herein to
the contrary: in the event the Building is not at least ninety percent (90%)
occupied during the year, an adjustment shall be made in computing the Operating
Expenses for such year so that the costs shall be computed for such year as
though the Building had been ninety percent (90%) occupied during such year. The
terms of this Subsection shall be solely for the benefit of the Landlord and may
not be relied upon nor construed for the benefit of the Tenant, other tenants in
the Building, or any other person.
3.3 Late Charge. Tenant hereby recognizes and acknowledges that if rental
payments are not received within ten (10) days of when due, Landlord will suffer
damages and additional expenses thereby and Tenant therefore agrees that a late
charge equal to five percent (5%) of the Basic Monthly Rent and any additional
rent or payments hereunder may be assessed by Landlord or Agent as additional
rental. Furthermore, Landlord or Agent shall have the right to require that all
rental payments be made by certified or cashier's check, in the event (i) any of
Tenant's checks are "bounced", dishonored or returned for any reason, or (ii)
Tenant monetarily defaults two or more times. All bank service charges resulting
from any checks of Tenant which are dishonored or returned for any reason shall
be borne by Tenant.
4. Security Deposit.
4.1 Delivery of Security Deposit. Tenant shall deposit with Landlord, upon
execution hereof, Nineteen Thousand Eight Hundred Fifty-three and 48/100 Dollars
($19,853.48) as security for the faithful performance of Tenant's obligations
hereunder (the "Security Deposit"). Tenant shall earn no interest on the
Security Deposit held by Landlord.
4.2 Use of Security Deposit. The Security Deposit shall be held by Landlord
as security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease. Landlord may use, apply or retain all
or any portion of the Security Deposit for the payment of any past due rent or
for the payment of any other sum to which Landlord may become entitled under
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this Lease or by law by reason of Tenant's default or to compensate Landlord for
any direct loss or damage which Landlord may suffer including, without
limitation, the cost of replacing or repairing any equipment damaged or removed
from the Premises and the cost of repairing any damage to the Premises or the
Building. Tenant shall have no right to apply the Security Deposit or any
portion thereof to any rent hereunder, but the Security Deposit may be so
applied, at Landlord's option, from time to time. If Landlord so uses or applies
all or any portion of the Security Deposit, Tenant shall within ten (10) days
after written demand therefor, deposit cash with Landlord in the amount
sufficient to restore the Security Deposit to the full amount of the Security
Deposit and Tenant's failure to do so shall be a Default under this Lease.
Landlord's application of any portion of the Security Deposit shall not cure any
Default hereunder and Landlord shall be free to exercise such other rights and
remedies as provided hereunder, at law or in equity. Provided Tenant is not in
default of its obligations under this Lease and there are no damages to the
Premises or the remainder of the Property caused by Tenant or its employees,
agents or contractors, the Security Deposit (or so much thereof as has not
theretofore been applied by Landlord or returned to Tenant), shall be returned
to Tenant within thirty (30) days after the expiration of the Term and after
Tenant has vacated the Premises.
5. Tenant's Use and Covenants.
5.1 Subject to Section 5.2, the Premises shall be used and occupied by the
Tenant only for corporate office, light manufacturing and warehouse use under
the business name of SavWatt USA and for no other use.
5.1.1 Exclusive Use. So long as (i) Tenant is not in default under this
Lease beyond any applicable notice or cure period, (ii) Tenant is in actual
occupancy of the Premises, and (iii) Tenant has not assigned the Lease or sublet
all or any part of the Premises, Tenant shall have sole seventh floor access to
the freight elevators located within the Premises as shown on Exhibit A and
consequently, Landlord shall not hereafter enter into a lease with a tenant who
is permitted to use the freight elevators on the seventh floor ("Exclusive
Covenant"); provided if any of the foregoing (i) through (iii) become untrue,
the Exclusive Covenant shall lapse and be of no farther force or effect. It is
understood that the Exclusive Covenant does not apply with respect to any tenant
that uses and accesses the freight elevator on any other floor of the Building.
Said freight elevators shall generally be available 24/7, subject to other
floor's tenant's use and any maintenance and repairs thereof, the cost of which
shall be at Landlord's sole cost and expense. In the event, however, that any
such repairs are necessitated by reason of any act or omission by Tenant, its
current or former employees, agents, licensees, invitees or contractors or
anyone entering the Premises by force. Tenant agrees to promptly, upon demand,
reimburse Landlord for the full costs thereof.
5.2 Prohibited Uses; Covenants of Tenant. Tenant shall be subject to any
exclusive retail or other sales or use covenants in existence at the Property
prior to Tenant's occupancy of the Premises and Tenant shall not use the
Premises or permit the use of the n a manner which violates any prohibited use
listed on Exhibit D attached hereto. Tenant shall not use, or permit the use of,
all or any part of the Premises for any disorderly, illegal or hazardous purpose
and will not manufacture any commodity therein other than light manufacture and
assembly. Tenant shall not use, or permit the use of, all or any part of the
Premises for any purpose that interferes with the use or enjoyment by other
tenants of any portion of the Building, nor which, in Landlord's opinion,
impairs, or might impair, the reputation or value of the Property. Tenant shall
not use utility services in excess of amounts reasonably determined by Landlord
to be within the normal range of demand for general office use. Tenant shall not
obstruct any of the Common Areas or any portion of the Property outside the
Premises, and shall not place or permit any signs, curtains, blinds, shades,
awnings, aerials or flagpoles, or the like, visible from outside the Premises.
Tenant shall keep the Premises in a neat and clean condition. Tenant shall pay
before delinquency any and all taxes, assessments and public charges levied,
assessed or maintained so as not to transmit noise or vibration to the Building
structure or to any other space in the Building. Tenant shall be responsible for
the cost of all structural engineering required to determine structural load and
all acoustical engineering required to address any noise or vibration caused by
Tenant, Tenant's Maintenance. tenant, at Tenant's sole expense, shall repair,
maintain and replace any and all Supplemental (hereinafter defined) heating,
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ventilating and air conditioning equipment; Supplemental plumbing facilities,
including without limitation, toilets, faucets and the like (exclusive of the
incoming main water lines): any other Supplemental standard mechanical
equipment; Supplemental electrical system; Supplemental lighting system,
including without limitation, bulbs; Tenant's telephone system: any Supplemental
access control or security system; and any furniture, appliances or equipment
owned by Tenant or made available for Tenant's use. "Supplemental" shall mean
any above building standard equipment or system, or any supplemental or stand
alone equipment or system installed by or on behalf of Tenant or a former tenant
serving the Premises. Tenant shall maintain a service contract with a licensed
and bondable mechanical contractor approved by Landlord, with a scope of service
acceptable to Landlord, for all of the HVAC equipment and systems Tenant is
obligated to maintain hereunder, and shall provide a copy of the same to
Landlord upon the execution thereof and any renewal thereof.
Floor Load; Prevention of Vibration and Noise. Tenant shall not place a
load upon the floor of the Premises exceeding the [ 100] pounds per square foot
such floor was designed to carry, as determined by Landlord or its structural
engineer. Partitions shall be considered as part of the load. Landlord may
prescribe the weight and position of all safes, files and heavy equipment that
Tenant desires to place in the Premises, so as to properly distribute their
weight. Tenant's business machines and mechanical equipment shall be installed
and imposed upon Tenant's business, upon the leasehold estate created by this
Lease or upon the Tenant's fixtures, furnishings or equipment in the Premises.
Tenant shall not strip, overload, damage or deface the Premises, or the
hallways, stairways, elevators, parking facilities or other public areas of the
Building, or the fixtures therein or used therewith, nor permit any hole to be
made in any of the same. Tenant shall not install any equipment of any kind or
nature which will or may necessitate any changes, replacements or additions to,
or in the use of, the water system, heating system, plumbing system, air
conditioning system or electrical system of the Premises or the Building,
without first obtaining the written consent of Landlord to be withheld in
Landlord's sole discretion, except if the additions relate to the HVAC or
electrical system in connection with partitioning or creating new office areas,
and the building systems are not adversely affected, then Landlord's consent
shall not be unreasonably withheld. Tenant shall comply with the Requirements
(as hereinafter defined). Tenant will not use or occupy the Premises in
violation of any Requirement. If any governmental authority, quasi-governmental
authority, mortgagee or insurance company shall contend or declare that the
Premises are being used for a purpose which is in violation of any Requirement,
then Tenant shall, upon five (5) days' notice from Landlord, immediately
discontinue such use of the Premises, unless such use is of such a nature that,
in Landlord's reasonable judgment, a more expeditious discontinuance is
required, in which case Tenant shall immediately discontinue such use. If
thereafter the party asserting such violation threatens, commences or continues
criminal or civil proceedings against Landlord for Tenant's failure to
discontinue such use, in addition to any and all rights, privileges and remedies
given to Landlord under this Lease for default herein, Landlord shall have the
right to terminate this Lease forthwith. Tenant shall indemnify and hold
Landlord harmless from and against any and all liability for such violation or
violations, which obligation shall survive the expiration or termination of this
Lease.
The term "Requirements" as used herein shall mean all laws, statutes,
ordinances, orders, rules, building codes, regulations and requirements of all
federal, state and municipal governments, and the appropriate agencies, offices,
departments, boards and commissions thereof, and the board of fire underwriters
and/'or the fire insurance rating organization or similar organization
performing the same or similar functions, whether now or hereafter in force,
applicable to the Building or any part thereof and/or the Premises, including,
but not limited to, all those relating to environmental or trash disposal,
hazardous waste and sorting, and Americans with Disabilities Act requirements.
The Requirements shall also include all requirements of any present or future
mortgagee or ground lessor of Landlord as to the manner of use, occupancy,
maintenance, repair or condition of the Premises and/or the Building, and the
requirements of the carriers of all fire insurance policies maintained by
Landlord on the Building as well as the Landlord's Rules and Regulations
attached hereto as Exhibit C.
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5.3 Tenant's Maintenance. Tenant, at Tenant's sole expense, shall repair,
maintain and replace any and all Supplemental (hereinafter defined) heating,
ventilating and air conditioning equipment; Supplemental plumbing facilities,
including without limitation, toilets, faucets and the like (exclusive of the
incoming main water lines): any other Supplemental standard mechanical
equipment; Supplemental electrical system; Supplemental lighting system,
including without limitation, bulbs; Tenant's telephone system: any Supplemental
access control or security system; and any furniture, appliances or equipment
owned by Tenant or made available for Tenant's use. "Supplemental" shall mean
any above building standard equipment or system, or any supplemental or stand
alone equipment or system installed by or on behalf of Tenant or a former tenant
serving the Premises. Tenant shall maintain a service contract with a licensed
and bondable mechanical contractor approved by Landlord, with a scope of service
acceptable to Landlord, for all of the HVAC equipment and systems Tenant is
obligated to maintain hereunder, and shall provide a copy of the same to
Landlord upon the execution thereof and any renewal thereof.
5.4 Floor Load; Prevention of Vibration and Noise. Tenant shall not place a
load upon the floor of the Premises exceeding the [ 100] pounds per square foot
such floor was designed to carry, as determined by Landlord or its structural
engineer. Partitions shall be considered as part of the load. Landlord may
prescribe the weight and position of all safes, files and heavy equipment that
Tenant desires to place in the Premises, so as to properly distribute their
weight. Tenant's business machines and mechanical equipment shall be installed
and maintained so as not to transmit noise or vibration to the Building
structure or to any other space in the Building. Tenant shall be responsible for
the cost of all structural engineering required to determine structural load and
all acoustical engineering required to address any noise or vibration caused by
Tenant.
5.5 Tenant Cleaning Covenant. Tenant, at Tenant's sole expense, shall:
(i) clean and maintain the Premises (including all display windows and
signs and all equipment therein) in a neat and clean condition and in reasonably
good repair, allowing for normal wear and tear, and provide janitorial and char
services with respect to the Premises;
(ii) not permit refuse, garbage, trash or rubbish to accumulate on the
Premises;
(iii) deposit all refuse, garbage, trash and rubbish in vermin and
infestation protective receptacles provided by Landlord; if Landlord deems that
Tenant's refuse, garbage, trash or rubbish is excessive, Landlord may require
Tenant at Tenant's own expense to contract to dispose of same;
(iv) Tenant shall also clean all areas of the Premises where food
operations are conducted or food is stored on a daily basis; and
(v) routinely exterminate the Premises (or such other parts of the Building
and Property if in Landlord's reasonable determination the condition of the
Premises has caused the infestation of such other parts of the Property by
rodent or other vermin or insects) as often as is required to prevent the
infestation of the Premises (or such other parts of the Property) by rodents,
other vermin or insects, or upon demand by Landlord.
6. Services Furnished by Landlord.
Landlord shall furnish services, utilities, facilities and supplies as
shown on the Landlord Services list attached as Exhibit B. If Landlord furnishes
any additional services at Tenant's request, such services shall be charged at
reasonable rates established by Landlord, which shall be considered additional
rent.
6.1 Repairs and Maintenance. Landlord shall repair and maintain the Common
Areas and structural portions of the Building and the basic (i.e.,
non-Supplemental) plumbing, electrical, mechanical and heating, ventilating, and
air-conditioning and sprinkler (if any) systems therein, including the roof and
windows, the costs of all of which shall be Operating Expenses. In the event,
however, that any such repairs are necessitated by reason of any act or omission
by Tenant, its current or former employees, agents, licensees, invitees or
contractors or anyone entering the Premises by force. Tenant agrees to promptly,
9
upon demand, reimburse Landlord for the full costs thereof. It is expressly
understood that Landlord has no obligations hereunder except for those which are
expressly stated herein or which are non-waivable under applicable law. Except
as expressly set forth above, all other repairs and maintenance to the Premises
shall be the responsibility of Tenant.
6.2 Quiet Enjoyment. Upon Tenant's paying the Rent and performing its other
obligations hereunder. Landlord gives the covenant of quiet enjoyment of the
Premises to Tenant, subject to the provisions hereof and the terms of any
mortgage, deed of trust or ground lease to which this Lease is subordinate.
6.3 Insurance. Landlord shall insure the Property, including the Building
(with limits no less than eighty percent of the actual replacement cost of same)
against damage by fire and standard extended coverage perils, and shall carry
public liability insurance, all in such reasonable amounts with such reasonable
deductibles as would be carried by a prudent owner of a similar Building in the
area. Landlord may carry any other forms of insurance as it or its mortgagee may
deem advisable. Tenant shall have no right to any proceeds from such policies.
Landlord shall not carry any insurance on any of Tenant's property, and shall
not be obligated to epair or replace any of Tenant's property.
6.4 Changes by Landlord. Landlord may at any time make any changes,
additions, improvements, repairs or replacements to the Property, including the
Common Areas, that it considers desirable. In so doing, Landlord may use or
temporarily close or reconfigure any of the Common Areas, or permanently change
their configuration. Landlord shall use reasonable efforts to minimize
interference with Tenant's normal activities, but no such interference shall
constitute constructive eviction or give rise to any abatement of rent or
liability of Landlord to Tenant. Landlord may also discontinue any facilities or
services provided as part of the Common Areas or as common facilities if such
areas or facilities are not described in Building services in Exhibit B.
6.5 Failure to Provide Services and Repairs. Landlord shall not be liable
for any failure to perform any act or provide any service required hereunder
unless Tenant shall have given written notice of such failure, and provided such
failure is susceptible to being cured and such failure continues for at least
ten days thereafter. Notwithstanding the foregoing, in the event of interruption
or termination of utility services to the Premises or the Building or Landlord's
failure to provide any other required service hereunder, which failure is caused
by factors beyond Landlord's reasonable control, then Landlord shall not be
liable to Tenant in any such event, and such event shall not constitute
constructive eviction or give rise to any rental abatement or reduction or any
other liability of Landlord to Tenant. Tenant hereby waives any right to make
repairs or provide maintenance at Landlord's expense under any law or ordinance.
If because of such interruption or termination of services required to be
provided by Landlord hereunder the Premises remain untenantable for reasons
other than (i) force majeure or (ii) any act or omission of Tenant or its
employees, agents, contractors or invitees for a period of more than five (5)
consecutive business days, rent shall thereafter abate on an equitable basis
during the period of untenantability.
7. Alterations. Tenant shall not make or permit to be made any alterations,
additions, modifications or improvements to the Premises (including without
limitation painting and carpeting) without the prior written consent of
Landlord, which consent will not be unreasonably withheld, provided that such
alterations, additions, modifications or improvements are not structural or
involve Building systems in which case Landlord's consent may be withheld in
Landlord's sole discretion. If Tenant desires to make any such alterations,
additions, modifications or improvements, a duplicate set of plans for the same
shall first be submitted to and approved by Landlord and Landlord shall have the
right to request reasonable revisions and corrections to the plans, all of which
corrections and revisions shall be incorporated by Tenant (with revised
duplicate sets delivered to Landlord). All such work shall be done by Tenant, at
its own expense, and Tenant agrees that all such work shall be done in a good
and workmanlike manner (Landlord having the right to approve all contractors,
all of whom shall be bonded and properly licensed) in accordance with the
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approved plans therefor and all applicable Requirements, that the structural
integrity of the Building shall not be impaired, that no liens shall attach to
the Premises or the Property by reason therefor, and that Tenant will secure all
necessary permits pertaining to the aforementioned alterations, additions,
modifications or improvements. Tenant shall reimburse Landlord upon demand
therefor for all reasonable costs and expenses incurred by Landlord in
connection with its review of such plans and the inspection of the work
contemplated thereby, but only to the extent such work relates to modifying
structural component or building systems. Tenant has no authority or power,
express or implied, to create or cause to be created or to consent to any lien,
charge or encumbrance of any kind against the Premises or the Property. Tenant
shall pay before delinquency all costs for work done or caused to be done by
Tenant in the Premises which could result in any lien or encumbrance on
Landlord's interest in the Property or any part thereof, shall keep the title to
the Property and every part thereof free and clear of any lien or encumbrance
with respect to such work and shall indemnify and hold harmless Landlord against
any claim, loss, lien, cost, demand or legal or other expense, whether in
respect of any lien, injury to person or property (including the Building) or
otherwise, arising out of the work performed or to be performed at the Premises
or the supply of material, services or labor for such work. Tenant shall
immediately notify Landlord of any such lien, claim of lien or other action of
which it has knowledge and which affects the title to the Property or any part
thereof and shall cause the same to be removed within ten (10) days, failing
which Landlord may take such action as Landlord deems necessary to remove the
same and the cost thereof (including reasonable attorneys' fees) shall be
immediately due and payable by Tenant to Landlord. All alterations, additions,
improvements and fixtures (other than Tenant's personal property, provided the
same are installed at no cost or expense to Landlord) which may be made or
installed by either party upon the Premises shall be and remain the property of
Landlord and shall remain upon and be surrendered with the Premises, unless
Landlord requests their removal, in which event Tenant shall remove the same and
restore the Premises to its original condition, taking into account normal wear
and tear, at Tenant's sole cost and expense and Tenant shall pay the entire cost
of such removal and restoration. If Tenant fails to remove such property and
restore the Premises as aforesaid. Landlord may do so and Tenant shall pay the
entire cost thereof to Landlord within ten (10) days after Tenant's receipt of
Landlord's written demand therefor. In connection with the installation of any
alterations, additions, modifications and improvements, including without
limitation, any described in Article 2 hereof. Tenant shall be responsible for
and pay any construction management fee charged by the property manager,
provided the fee does not exceed ten percent (10%) of the sum of hard costs of
any such installation of alterations, additions, modifications or improvements.
8. Hazardous Substances and Environmental Issues.
8.1 Hazardous Substances. Tenant (a) shall not use, process, release,
discharge, generate, treat, store, transport or dispose of any Hazardous
Substances on, in, under or through the Premises or Property (other than
substances necessary for the proper operation of business machines (E.G.,
photocopying machines and printers)), and (b) shall prohibit its employees,
licensees, subtenants, invitees and third party contractors from using,
processing, releasing, discharging, generating, treating, storing or disposing
of any Hazardous Substances on, in, under or through the Premises or Property,
in either case in quantities or concentrations or in a manner which would
violate any applicable Requirement. In addition to any other obligation or
liability that Tenant may have hereunder or under applicable law, if Tenant or
any of Tenant's employees, licensees, subtenants, invitees or third party
contractors uses, processes, releases, discharges, treats, generates, stores,
transports or disposes of any Hazardous Substance on, in, under or through the
Premises or the Property in violation of the terms of this Lease or applicable
law, then Tenant upon discovering same or upon notice from Landlord or any
governmental authority shall immediately remove such Hazardous Substance from
the Premises and the Property at Tenant's sole cost and expense in accordance
with all applicable Requirements. Tenant hereby indemnifies and holds Landlord
harmless from any loss, cost, claim, damage or expense including reasonable
attorneys' fees arising out of a breach by Tenant of its obligations under this
Section, which indemnification obligation shall survive the expiration or
11
termination of this Lease. For purposes hereof the term "Hazardous Substances"
shall mean any and all substances (whether liquid, solid or gas) defined, listed
or otherwise classified as pollutants. hazardous wastes, hazardous substances,
hazardous materials, extremely hazardous wastes, or words or terms of similar
regulatory effect under any present or future Requirement or that may have a
negative impact on human health, safety or the environment, including, but not
limited to, petroleum and petroleum products, asbestos and asbestos-containing
materials, polychlorinated biphenyls, lead, lead-based paints, radon,
radioactive materials, flammables and explosives.
8.2 Conservation and Environmental Policies and Programs. Tenant shall
comply with all conservation and environmental protection programs and policies
implemented by Landlord to comply with any mandatory or reasonable voluntary
conservation or environmental protection program or policy promulgated by any
governmental or quasi-governmental authority. Landlord shall have no liability
to Tenant and Tenant shall not, except as expressly provided in the last
sentence of Section 6.5 above, be entitled to any rebate or offset against Rent
nor shall the same constitute constructive eviction if Landlord is unable to
provide any of the services provided for in Article 6 because of Landlord's
compliance with any such mandatory program or policy.
9. Insurance.
9.1 Fire Insurance. Tenant agrees, in addition to the provisions of Article
8, that it will not do anything that will cause Landlord's insurance against
loss by fire or other hazards, as well as public liability insurance, to be
canceled or the rates thereof increased or that will prevent Landlord from
procuring same in acceptable companies and at standard rates. Tenant will
further do everything reasonably possible and consistent with the conduct of
Tenant's business to obtain the lowest possible rates for insurance on the
Premises. If, however, the cost to Landlord of obtaining insurance on the
Premises (or the Building in which the Premises are located) is increased due to
the Tenant's occupancy thereof. Tenant agrees to pay, promptly upon demand, as
additional rental, any such increase and such activity shall, at Landlord's
option constitute a Default hereunder.
9.2 Tenant's Insurance. During the Term. Tenant shall obtain and maintain
in force at Tenant's sole cost and expense the following insurance:
9.2.1 Casualty Insurance. Fire and Extended Coverage in the form of a
"Special Form" policy with extended coverage endorsement, including vandalism,
malicious mischief, water damage, sprinkler damage, earthquake and flood
coverage, and any other endorsement required by the holder of any fee or
leasehold mortgage, in an amount equal to full replacement value, at the time of
loss, of Tenant's personal property and trade fixtures located at the Premises
as well as alterations and improvements to the Premises paid for by the Tenant.
Such amount shall provide for replacement cost and shall be subject to a
deductible amount no greater than that reasonably acceptable to Landlord.
Landlord agrees that a deductible amount of Ten Thousand Dollars ($10,000) is
acceptable to Landlord. Notwithstanding the foregoing. Tenant shall not be
required to carry earthquake or flood insurance unless any lender holding a
mortgage or deed of trust on the Building requires earthquake or flood insurance
or such insurance is generally being required by landlords leasing space in the
Washington. D.C. metropolitan area.
9.2.2 Liability Insurance. Commercial General Liability Insurance on an
"occurrence" basis for the benefit of Landlord, Agent (hereinafter defined) and
Landlord's property management company(ies) (if other than Agent) and any
mortgagee as additional insureds against claims for "personal injury" liability,
including (without limitation) bodily injury, death or property damage liability
with a limit of not less than One Million Dollars ($1,000,000) in the event of
"personal injury" including death to any number of persons or of damage to
property arising out of any one "occurrence" and Two Million Dollars
($2,000,000) aggregate; any such insurance may be furnished under an "umbrella"
policy with Landlord's prior written consent, which shall not be unreasonably
withheld so long as the amount of insurance covering the Premises is not reduced
by losses occurring at other locations. Such amount shall be subject to a
deductible amount no greater than that reasonably acceptable to Landlord.
12
Landlord agrees that a deductible amount of Ten Thousand Dollars (510,000) is
acceptable to Landlord. The policy shall insure performance by Tenant of the
indemnity provisions of Section 9.5. The limits of any such insurance shall not,
however, limit the liability of Tenant under this Lease.
9.2.3 Worker's Compensation. Worker's compensation insurance (including
employees' liability insurance) in the amount covering all employees of Tenant
employed at or performing services at the Premises, in order to provide the
statutory benefits required by the laws of the State of Maryland.
9.2.4 Business Interruption. Business interruption insurance, providing in
the event of damage or destruction of the Premises an amount sufficient to
sustain Tenant for a period of not less than one year for: (a) the net profit
that would have been realized had the business continued: and (b) such fixed
charges and expenses as must necessarily continue during a total or partial
suspension of business to the extent to which they would have been incurred had
no business interruption occurred, including, but not limited to, interest on
indebtedness, charges under noncancellable contracts, charges for advertising,
legal or other professional services, taxes and rents that may still continue,
trade association dues, insurance premiums and depreciation.
9.2.5 Other Insurance. Such other insurance as Landlord or any mortgagee
may reasonably require including, without limitation, builder's risk insurance
during the course of any improvements, alterations, additions or modifications
to the Premises.
9.3 Insurance Policies and Insurers. All insurance policies required to be
obtained and maintained by Tenant under this Lease shall be issued by insurance
companies authorized to do business in the State of Maryland and with a rating
of at least "A" in A.M. Best's Key Rating Guide and at least "X" in A.M. Best's
Financial Rating Guide, shall be written as primary policies and not
contributing with or in excess of any coverage which Landlord may carry, shall
provide that the policy may not be canceled or amended or the coverage
thereunder reduced unless Landlord and each other party designated as an
additional insured or loss payee thereunder shall have received thirty (30) days
prior written notice, shall contain a provision or have the effect that Landlord
and any other parties in interest shall be entitled to recover under those
policies for any covered loss occasioned to them, notwithstanding any act or
omission of Tenant or any other named insured and shall otherwise be in form and
content reasonably satisfactory to Landlord. Tenant shall furnish to Landlord,
prior to the Commencement Date, and within thirty (30) days prior to the
expiration of each such policy, a certificate of insurance issued by the
insurance carrier of each policy of insurance carried by Tenant pursuant hereto,
reflecting the coverages required by this Article 9. and a copy of each
insurance policy. Landlord, its successors and assigns, Landlord's property
management company(ies) and each nominee of Landlord holding any interest in the
Premises shall be designated as an additional insured and as a loss payee, as
applicable, under each policy of insurance (other than those for worker's
compensation) maintained by Tenant pursuant to this Article 9. The premiums on
any policy which Tenant is required to carry pursuant to this Article 9 shall be
paid when due. Upon payment of such premiums, reasonable evidence of payment
shall be provided to Landlord. Tenant shall immediately notify Landlord in the
event that any of its insurance carriers cancel or modify any policy of
insurance and shall also notify1 Landlord at least thirty (30) days prior to
changing insurance carriers or the modification or cancellation of any policy;
provided, however, that the notification hereinabove required shall not relieve
Tenant of its obligation to maintain continuously in effect the types and
amounts of insurance specified in this Article 9. If Tenant fails to provide
evidence reasonably satisfactory to Landlord of Tenant's timely compliance with
the requirements of this Article 9, Landlord shall have the right, after written
notice to Tenant, to place any and all of the insurance coverages set forth
above and Tenant agrees to reimburse Landlord immediately upon demand, as
Additional Rent, Landlord's cost of such coverages. From time to time, but in no
event more frequently than once in any twelve month period, Landlord shall have
the right to adjust the dollar limits of coverage set forth in this Article 9.
9.4 Waiver of Subrogation.
9.4.1 Release. Subject to the provisions of Subsection 9.4.2, Landlord and
Tenant (on behalf of themselves and their respective agents, employees, third
13
party contractors, subtenants, licensees, invitees and assignees) each release
the other with respect to and agree that the other shall not be liable for any
business interruption or any loss or damage to property or injury to or death ot
persons occurring on the Premises, in the Building or on adjoining property or
in any manner arising out of or connected with Tenant's use of the Premises,
whether or not caused by the negligence or other fault of Landlord or Tenant or
any of their respective agents, employees, third party contractors, subtenants,
licensees, invitees or assignees; in addition, however, that Tenant (and such
other listed related parties) hereby also release Agent and Landlord's property
management company(ies) (if other than Agent) and agree that Agent and
Landlord's property management company(ies) (if other than Agent) shall not be
liable in the same manner as Landlord.
9.4.2 Insurance Coverage. The release and waiver contained in Subsection
9.4.1 shall apply only to the extent that such business interruption, loss or
damage to property, or injury to or death of persons is covered by, or required
hereunder to be covered by insurance (excluding liability insurance), regardless
of whether such insurance is payable or protects the Landlord (and Agent and
Landlord's property management company(ies) if other than Agent) or Tenant or
both. Nothing in this Section 9.4 shall be construed to impose any other or
greater liability upon either the Landlord (and Agent and Landlord's property
management company(ies) if other than Agent) or Tenant than would have existed
in absence of this Subsection.
9.4.3 No Effect. The release and waiver contained in Subsection 9.4.1 shall
be in effect only so long as the applicable insurance policies contain a clause
to the effect that such release and waiver will not affect the right of the
insured to recover under such policies. Such clauses shall be obtained by the
parties in policies to be obtained by them whenever possible.
9.5 Indemnity. Tenant shall indemnify, hold harmless and defend Landlord,
and Agent and Landlord's property management companies) if other than Agent,
from and against any and all claims, demands, causes of action, loss, liability,
costs or expenses (including, without limitation, reasonable attorneys' fees and
costs) arising out of, connected with or incidental to: Tenant's use and
occupancy of the Premises or the business conducted by Tenant therein; or any
act or omission by Tenant or any of Tenant's agents, employees, third party
contractors, subtenants, licensees, invitees or assignees; or any Default by
Tenant under this Lease. Tenant's obligations under this Section 9.5 shall not
apply to claims, demands, causes of action, loss, liability, costs or expenses
to the extent resulting from the gross negligence or intentional misconduct of
Landlord or its agents, employees or third party contractors. Tenant's
obligations under this Section 9.5 as well as under any other indemnity
provision set forth in this Lease shall survive the termination or expiration of
this Lease. To the extent of Landlord's liability insurance coverage only.
Landlord shall indemnify, hold harmless and defend Tenant from and against any
and all claims, demands, causes of action, loss, liability, costs or expenses
(including, without limitation, reasonable attorneys' fees and costs) relating
to property damage or bodily injury brought or incurred by third parties
(excluding Tenant's employees, contractors, agents, assignees, sublessees and
licensees) with respect to occurrences within the Common Areas arising solely
due to Landlord's gross negligence or intentionally wrongful acts (specifically
excluding those where the claim, demand or cause of action is also against
Tenant or any of Tenant's agents, employees, contractors, subtenants, licensees,
invitees or assignees or is caused in whole or in part by any intentional or
negligent act or omission by or attributable to Tenant or Tenant's employees,
contractors, agents, assignees, sublessees and licensees).
10. Permits - Compliance with Laws.
10.1 Permits. Tenant shall, at its own expense, promptly obtain from the
appropriate governmental authorities and maintain in full force and effect
during the Term of this Lease any and all permits, licenses and the like
required to permit Tenant to occupy the Premises and conduct its business for
the purposes herein stated. Tenant's failure to satisfy this requirement shall
not relieve the Tenant of its liability for all Rent from the Commencement Date.
10.2 Compliance with Laws. Tenant shall continuously comply with and cause
its employees, agents, contractors, invitees and licensees to comply with all
Requirements applicable to Tenant's use and occupancy of the Premises and the
Common Areas.
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11. Assignment and Subletting.
11.1 Tenant agrees that it will not, by agreement, operation of law or
otherwise, without Landlord's prior written consent, (i) assign, transfer, or
encumber the Lease, in whole or in part, or (ii) sublet, license or otherwise
permit others to occupy the Premises, in whole or in part (all of the foregoing
in clauses (i) and (ii) being referred to as a "Transfer"). Landlord shall base
its decision on consent to a Transfer upon, among other factors, the
credit-worthiness, use. and reputation of the proposed transferee, assignee,
sublessee, licensee or other occupant (a "Transferee"), and Landlord agrees that
it will not arbitrarily withhold its consent. Tenant shall provide Landlord with
whatever documentation Landlord may reasonably request to evaluate the same,
including without limitation, tax returns and audited financial statements for
the proposed Transferee. No Transfer shall relieve or release Tenant from any
liability or obligation under this Lease (and the transferring Tenant shall
continue to have primary liability under this Lease, jointly and severally with
the Transferee), nor shall any Transfer relieve or release any guarantor from
any liability or obligation under any guaranty of this Lease. Tenant hereby
acknowledges that among other reasons and factors, Landlord's disapproval of any
proposed Transfer shall be deemed valid and final if based upon any or all of
the following factors: (i) the proposed Transfer would result in more than two
subleases of portions of the Premises being in effect at any one time during the
Term, or would result in any sublease premises or the remainder of the Premises
(i.e., that not subleased) not having direct access to a Building common area
corridor in mariner which complies with applicable code; (ii) the net effective
rent payable by the Transferee (adjusted on a rentable square foot basis) is
less than the net effective rent then being quoted by Landlord for new leases in
the Building for comparable size space for a comparable period of time; (iii)
the proposed Transferee is an existing tenant of the Building or is negotiating
with Landlord; (iv) the proposed Transferee is a governmental entity; (v) the
portion of the Premises to be sublet or assigned is irregular in shape with
inadequate means of ingress and egress; (vi) the use of the Premises by the
Transferee (A) is not permitted by the use provisions hereof, or (B) violates
any exclusive use granted by Landlord to another tenant in the Building (to the
extent such exclusive is disclosed to Tenant); (vii) the Transfer would result
in significant increase in the use of the parking areas or Common Areas by the
Transferee's employees or visitors, and/or significantly increase the demand
upon utilities and services to be provided by Landlord to the Premises; (viii)
the Transferee does not have the financial capability to fulfill the obligations
imposed by the Transfer; (ix) the Transferee is not in Landlord's opinion of
reputable or good character or consistent with Landlord's desired tenant mix; or
(x) the Transferee is a real estate developer or landlord or is acting directly
or indirectly on behalf of a real estate developer or landlord. Tenant further
agrees that if it intends to Transfer the entire Premises, it will first notify
Landlord in writing and Landlord shall have fifteen (15) days to notify Tenant
that Landlord, at its option may accept a surrender of the Premises, in which
event Landlord shall release Tenant from any further liability under this Lease
from and after the date the Premises are surrendered. Tenant agrees to pay
Landlord a minimum fee of SI.000.00 for services rendered in respect to each
consent to a Transfer. Any Transfer without Landlord's prior written consent
shall be a Default under this Lease, and at Landlord's sole option, be deemed
void. Any Transfer to which Landlord consents shall not be effective until the
Transferee executes an acknowledgement of Landlord's consent to the Transfer,
assignment or subletting on Landlord's standard form, and unless Landlord's
otherwise agrees, any such Transfer shall be on Landlord's standard form
therefor. Consent to any Transfer shall not be deemed a consent to any
subsequent Transfer. In the event of any Transfer, any rent or other
consideration that Tenant or an affiliate receives from the Transferee or an
affiliate in connection with the Transfer shall be split 50/50 between Landlord
and Tenant, except that in the case of a sublease, only the amounts in excess of
the pro-rated Basic Monthly Rent and pro-rated scheduled Additional Rent
hereunder shall be split 50/50. For the purposes of the foregoing, any transfer,
direct or indirect (e.g., through transfer of ownership interests in the
ownership entity or further upstream entity) of the ownership interests in
Tenant (whether stock, partnership interests or membership interests or other),
whether in one or more successive transfers, of either (i) a controlling
interest, or (ii) more than twenty-five percent (25%) interest, shall be deemed
an assignment. Tenant shall not restrict any subtenants, licensees or other
sub-occupants from relocating, after the end of their agreed term, to other
premises in the Building or charge a fee in connection therewith, and any
provision to the contrary in any such agreement is void.
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11.2 Notwithstanding the foregoing. Tenant may, with prior notice to
Landlord but without the requirement of Landlord's consent, Transfer the Lease
to (i) the surviving entity upon a merger or consolidation with SavWatt USA,
Inc., so long as the surviving entity (taking into account any financing
utilized in connection with the transaction) has an equal or better financial
condition and creditworthiness than the assigning Tenant had, at both the time
of execution of this Lease and as of immediately before the merger or
consolidation, (ii) any entity purchasing all of the assets of SavWatt USA,
Inc., so long as the purchasing entity (taking into account any financing
utilized in connection with the transaction)has an equal or better financial
condition and creditworthiness than the Tenant had. at both the time of
execution of this Lease and as of immediately before the asset sale, or (iii) a
wholly-owned subsidiary of Tenant or to the 100% parent of Tenant, so long as
the subsidiary or parent (taking into account any financing utilized in
connection with the transaction) has an equal or better financial condition and
creditworthiness than the Tenant had, at both the time of execution of this
Lease and as of immediately before the Transfer, provided that in any case of
the foregoing (i) thru (iii) which involves a Transfer of less than 100% of the
Premises, there shall be no reconfiguration of the Premises; provided however,
that (x) any such Transfer shall not be effective until the transferor and
transferee execute Landlord's standard form evidencing the Transfer, and (y) if
Tenant is in Default hereunder at the time of the Transfer, at Landlord's sole
option, such Transfer shall be null and void. Along with the notice, Tenant
shall provide such documentation as is reasonably requested by Landlord to
substantiate the applicability of this Section 11.2, such information to be
certified to Landlord by the entity or person providing the information or an
officer, partner or owner thereof, as directed by Landlord. If Tenant is a
publicly-traded company, and applicable securities laws prevent disclosure to
Landlord in advance of the merger, consolidation or asset sale, then within five
(5) days of the merger, consolidation or asset sale. Tenant shall provide such
notice and documentation and execute Landlord's standard form evidencing the
Transfer.
Any such Transfer which does not require Landlord's consent under this
Section 11.2 shall remain subject to all other provisions of Section 11.1,
except that Landlord shall not have the recapture right under Section 11.1 as to
such Transfer which does not require Landlord's consent. In furtherance of the
foregoing, no such Transfer shall relieve Tenant from any obligations under this
Lease (as the same may be modified, renewed or extended) and Tenant shall
continue to have primary liability under this Lease (jointly and severally with
the Transferee), and in addition, such Transfer shall not release any guarantor
from any obligations under any guaranty of this Lease.
12. Subordination.
Tenant accepts this Lease, and the tenancy created hereunder, subject and
subordinate to any leases, mortgages, deeds of trust, leasehold mortgages or
other security interests now or hereafter a lien upon or affecting the Building
or the Property or any part thereof. Tenant shall, at any time hereafter, within
ten (10) days following request therefor, execute any instruments, leases or
other documents that may be required by any ground lessor, mortgage, mortgagee,
deed of trust, beneficiary, trustee or underlying owner or Landlord hereunder to
confirm Tenant's subordination of its interest hereunder to any such mortgage or
mortgages, deed or deeds of trust or underlying lease, and the failure of Tenant
to execute any such instruments, leases or documents shall constitute an
immediate Default hereunder.
13. Attornment.
Tenant agrees that upon any termination of Landlord's interest in the
Premises, Tenant will, upon request, attorn to the person or organization then
holding title to the Property or Landlord's prior interest therein (the
"Successor") and to all subsequent Successors, and shall pay to the Successor
all rents and other monies required to be paid by the Tenant hereunder and
perform all of the other terms, covenants, conditions and obligations contained
in this Lease, and Tenant will execute and deliver to Landlord (and Landlord's
mortgagee) and any Successor, such instruments as may be required by such person
confirming same.
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14. Property Loss or Damage.
14.1 Landlord's Responsibility. Subject to the provisions of Section 14.2,
Tenant hereby expressly agrees that Landlord (and Agent and Landlord's property
management company(ies) if other than Agent) shall not be responsible in any
manner for any damage or injury to the person or property of Tenant or any other
person or business directly or indirectly caused by (i) dampness or water,
whether due to a break or leak in any part of the roof, heating, or plumbing
within the Premises, or in the Building in which the Premises are located, no
matter how caused; (ii) theft; (iii) fire or other casualty; (iv) any other
cause whatsoever.
14.2 Landlord's Liability for Damages. Landlord shall only be liable for
actual damages or injury to person or property of Tenant or of any other person
or business where (i) notice in writing of any defect (or Landlord has
constructive notice of any defect) which Landlord is obligated under the terms
of this Lease to correct and which caused such damage or injury, has been given
in sufficient time before the occurrence of such damage or injury to have
enabled Landlord to correct such defect, and (ii) then only if such damage or
injury is due to Landlord's gross negligence in performing its obligations
hereunder, and (iii) Landlord is not released, deemed not liable or indemnified
therefrom elsewhere herein.
15. Tenant's Failure to Perform.
In the event that Tenant fails to do any act or make any payment or perform
any term or covenant on Tenant's part required under this Lease or otherwise
fails to comply herewith, after expiration of any applicable cure period.
Landlord may (at its option, but without being required to do so) immediately,
or at any time thereafter and without any further notice, and without relieving
Tenant ot any of its obligations hereunder, perform the same on the account that
Tenant has failed to do so; provided however, that it is understood that the
cure period in Section 21 shall not apply with respect to (x) obligations
relating to maintenance of insurance, and removing or bonding a hen, which shall
be governed by Sections 7 and 9 respectively; and (y) repair of the Premises or
other parts of the Property, in which case Landlord shall not exercise such
right until the expiration of fifteen (15) days' written notice from Landlord
(except in the case of an emergency in which case no such notice shall be
required, and immediate exercise is permitted). If Landlord makes any
expenditures, or incurs any obligations for the payment of money in connection
therewith, including, but not limited to. attorneys' fees in instituting
prosecuting or defending any action or proceeding, such sums paid or obligations
incurred, with interest at the rate of six percent (6%) per annum from the date
Landlord incurs such expense or cost, shall be deemed to be Additional Rent
hereunder and shall be paid by Tenant to Landlord within five (5) days of
rendition of any bill or statement to Tenant therefor. All rights given to
Landlord in this Article shall be in addition to any other rights or remedies of
Landlord herein contained or otherwise available.
16. Landlord's Right to Show and Inspect Premises.
Tenant agrees that Landlord may, within the last six (6) months of the
Lease term, display a "For Lease" or "For Sale" sign on the Premises and show
prospects through the Premises at any reasonable time, with twenty-four (24)
hours' prior notice to allow Tenant to arrange for escorted tours. In addition,
Landlord may. during any reasonable time or times, before and after the
Commencement Date, enter upon the Premises, any portion thereof and any
appurtenance thereto (with men and materials, if required) for the purpose of:
(i) inspecting the same, (ii) making such repairs, replacements or alterations
which it may be required to perform under the provisions of this Lease or which
it may deem desirable for the Premises or the Building, including but not
limited to repairs and improvements to space above, below and/or on the same
floor as the Premises and/or (iii) performing any other acts required of or
permitted to Landlord herein or under any applicable Requirement. Landlord
agrees to give notice prior to any such entry except that Landlord may enter
without notice in the case of an emergency. In making such an entry, Landlord
agrees to use reasonable efforts to avoid interfering with the regular and usual
conduct of Tenant's business and Tenant shall not interfere with the conduct of
any such inspection or tour.
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17. Surrender at End of Term.
Tenant shall vacate the Premises at the expiration or other termination of
this Lease or of Tenant's right of possession, and except as otherwise provided,
shall remove all goods and effects not belonging to Landlord (including without
limitation all wiring and cabling including those running outside of the
Premises), and any leasehold alterations, additions, improvements and fixtures
to be removed from the Premises by Tenant pursuant to the terms of Section 7
hereof, and shall surrender possession of the Premises and all fixtures and
systems thereof not required to be removed, in good repair and good working
condition, reasonable wear, tear and damage by casualty for which Tenant is not
responsible hereunder excepted and Tenant shall otherwise comply with Section 7
hereof. If Tenant shall fail to perform any of the foregoing obligations.
Landlord is hereby expressly authorized to do so on Tenant's behalf and at
Tenant's sole cost and expense, and Landlord may sell such articles on the
Premises as Landlord in its sole discretion deems saleable, and may dispose of
others in any manner which it chooses. Tenant shall pay and be liable for any
and all costs and expenses incurred by Landlord hereunder. The proceeds of any
such sale shall be applied toward the expenses thus incurred AS well as any
other outstanding obligations of Tenant under this Lease and Tenant agrees to
pay any remaining balance promptly. For purposes of this paragraph, reference to
"Premises'" shall include any exterior storage or other areas in the Building,
on the roof or elsewhere within the Property outside of the Premises as to which
Tenant had exclusive use or utilized in connection with its operations. In
furtherance but without limitation of the foregoing, at the expiration or other
termination of this Lease, Tenant shall be responsible for (i) removing all
items from exterior or other storage areas and repairing and restoring those
areas to original condition; (ii) removing any dumpster(s) from the Property and
repairing and restoring any areas damaged by dumpster(s) use (whether wear or
tear or otherwise) to original condition; (iii) removing any roof
telecommunication devices and, except as otherwise directed by Landlord, rooftop
HVAC units and back-up generators (and associated conduits, wiring and the like)
serving the Premises, and repairing and restoring the roof and other affected
areas to original condition.
18. Holding Over.
If Tenant shall not immediately surrender possession of the Premises at the
termination or expiration of this Lease, Tenant shall become a tenant at
sufferance at a monthly rental of twice the Basic Monthly Rent and Additional
Rent in effect just prior to termination or expiration of this Lease, said
rental to be payable in advance on a monthly basis. Tenant's tenancy at
sufferance shall continue on a month to month basis and Tenant shall be required
to give thirty (30) days advance notice to Landlord to terminate such month to
month tenancy at sufferance. Notwithstanding anything herein to the contrary,
the Landlord shall continue to be entitled to retake possession of the Premises
immediately upon the expiration of the term hereof or upon expiration of any
monthly period of the tenancy at sufferance, without notice, at any time prior
to accepting the rent payment for the next ensuing monthly period. Tenant, as a
tenant at sufferance, shall be subject to all the terms, conditions and
covenants of this Lease (including without limitation. Landlord's rights under
the Lease) as though the tenancy had originally been a monthly tenancy. Tenant
further agrees that it shall be liable for any damages suffered by Landlord by
reason of Tenant's failure to immediately surrender the Premises.
19. Destruction - Fire or Other Casualty.
In case of partial damage to the Premises by fire or other casualty,
insured against by Landlord, Tenant shall give immediate notice thereof to
Landlord, and Landlord, to the extent that insurance proceeds respecting such
damage are subject to and, in fact, are under the control and use of Landlord,
shall thereupon cause such damage to all property owned by Landlord to be
repaired with reasonable speed at the expense of Landlord, due allowance being
made for reasonable delay which may arise by reason of adjustment of loss under
insurance policies on the part of Landlord and/or Tenant, and for reasonable
delay on account of "labor troubles" or any other cause beyond Landlord's
control and to the extent that the Premises are rendered actually untenantable,
the rent shall proportionately abate, unless Tenant cannot materially conduct
business, in which case the Premises shall be deemed untenantable.
Notwithstanding the foregoing, if such partial damage is due to the fault or
neglect of Tenant or those employing or retaining the services of Tenant, or
Tenant's servants, employees, agents, contractors, licensees, invitees or
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visitors, or to the extent that insurance proceeds respecting such damage are
not subject to and, in fact, are not under the control and use of Landlord, the
damage shall be repaired by Landlord at Tenant's expense and there shall be no
apportionment or abatement of rent. In the event the damage shall be so
extensive to the whole Building as to render it uneconomical, in Landlord's
opinion, to restore for the use of Tenant, as specified in Article 5 hereof, or
Landlord shall decide not to repair or rebuild the Building, then Landlord may
elect to terminate this Lease upon written notice to Tenant and this Lease shall
expire by lapse of time upon the third day after such notice is mailed, and
Tenant shall thereupon vacate the Premises and surrender the same to Landlord,
but such termination shall not release Tenant from any liability to Landlord
arising from such damage or from any breach of the obligations imposed on Tenant
hereunder or any other obligations which expressly survive the termination of
this Lease. In no event shall Landlord have any obligation to repair or restore
any of Tenant's improvements or property provided, further, that in the event
Landlord repairs or restores the Premises, Tenant shall promptly restore all of
Tenant's improvements, fixtures, equipment and other property damaged in such
casualty. The provisions of any statute causing a Lease termination or otherwise
granting a party the right to terminate the Lease by reason of fire or other
casualty are hereby waived and superceded by this Section 19.
20. Eminent Domain.
If the entire Premises shall be substantially taken (either temporarily or
permanently) for public purposes, or in the event Landlord shall convey or lease
the property to any public authority in settlement of a threat of condemnation
or taking, the rent shall be adjusted to the date of such taking or leasing or
conveyance, and this Lease shall thereupon terminate. If only a portion of the
Premises shall be so taken, leased or condemned as a result of such partial
taking, and Tenant is reasonably able to use the remainder of the Premises for
the purposes intended hereunder, then this Lease shall not terminate, but,
effective as of the date of such taking, leasing or condemnation, the rent
hereunder shall be abated in an amount thereof proportionate to the area of the
Premises so taken, leased or condemned. If, following such partial taking,
Tenant shall not be reasonably able to use the remainder of the Premises for the
purposes intended hereunder, then this Lease shall terminate as if the entire
Premises had been taken, leased or condemned. In the event of a taking, lease or
condemnation as described in this Article, whether or not there is a termination
hereunder. Tenant shall have no claim against Landlord other than for a rental
abatement to the extent provided above, and Tenant shall not be entitled to any
portion of any amount that may be awarded as damages or paid as a result of or
in settlement of such proceedings or threat. In furtherance of the foregoing,
any awards relating to compensation for taking of real property or leasehold
interests are hereby assigned by Tenant to Landlord.
21. Defaults - Remedies.
21.1 Tenant Defaults. In addition to any other event under this Lease which
is denominated a "Default." the occurrence of any one or more of the following
events shall constitute a "Default" under this Lease by Tenant:
21.1.1 Vacating. The vacating of the Premises by Tenant for more than five
(5) consecutive days, or the abandonment of the Premises by Tenant.
21.1.2 Payment. The failure by Tenant to make any payment of rent or any
other payment required to be made by Tenant hereunder. as and when due.
21.1.3 Performance. The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Tenant other than described in Subsection 21.1.2 hereinabove or elsewhere
herein, where such failure shall continue for a period of ten (10) business days
after written notice thereof from Landlord to Tenant, or if the nature of the
Tenant's default cannot be cured in such ten (10) business day period, if Tenant
fails to commence such cure within said ten (10) business day period or
thereafter fails to diligently prosecute such cure to completion, within thirty
(30) days of the original notice.
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21.1.4 Assignment. The making by Tenant or any guarantor of this Lease of
any general assignment or general arrangement for the benefit of creditors,
filing by or against Tenant or any such guarantor of a petition to have Tenant
or such guarantor adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless in the case of a
petition filed against Tenant or such guarantor, the same is dismissed within
sixty (60) days), the appointment of a Trustee or receiver to take possession of
substantially all of the Tenant's assets located in the Premises or the Tenant's
interest in this Lease or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or Tenant's
interest in this Lease.
21.1.5 Execution or Attachment. Tenant's interest in this Lease is taken in
execution or in attachment or a writ of execution is issued against Tenant.
21.1.6 Non-Payment of Debts. Tenant or any guarantor of Tenant's
obligations under this Lease generally does not pay its debts as they become
due, unless such debts are the subject of a bona fide dispute, or admits in
writing its inability to pay its debts.
21.1.7 Taking Possession. The failure of Tenant to take possession of the
Premises within fifteen (15) days of the Commencement Date.
21.2 Remedies. Upon the occurrence of a Default and at any time thereafter,
in addition to any other rights and remedies Landlord may have under this Lease
or at law or in equity, whether or not Tenant abandons the Premises, Landlord
shall have the option, in its sole discretion, to do any one or more of the
following: (i) terminate this Lease by any lawful means in which case Tenant
shall immediately surrender possession of the Premises to Landlord, (ii)
re-enter the Premises, without terminating this Lease, and remove any property
from the Premises, in which case Landlord shall be entitled to enforce all of
Landlord's rights and remedies under this Lease including the right to recover
all Rent and other amounts as they become due and (iii) pursue any other or
additional right or remedy now or hereafter available to Landlord under the law
of the jurisdiction where the Building is located. No re-entry or re-taking of
possession of the Premises by Landlord hereunder or other action on Landlord's
part shall be construed as an election to terminate this Lease unless a written
notice of such intention is given to Tenant or unless the termination thereof is
decreed by a court of competent jurisdiction. Landlord's election not to
terminate this Lease pursuant to clause (i) above shall not preclude Landlord
from subsequently electing to terminate this Lease or pursuing any of its other
remedies. Notwithstanding the foregoing, Landlord agrees not to violate any
self-help eviction laws of the State of Maryland or any court which has
jurisdiction.
21.2.1 Reletting of Premises. Whether or not this Lease or Tenant's right
of possession is terminated following such Default, Landlord may relet the
Premises or any part thereof, alone or together with other premises, for such
term or terms (which may be greater or less than the period which otherwise
would have constituted the balance of the Term) and on such terms and conditions
(which may include concessions of free rent and alterations of the Premises) as
Landlord, in its sole discretion, may deem necessary or appropriate, but
Landlord shall not be liable for, nor shall Tenant's obligations hereunder be
diminished by reason of, any failure by Landlord to relet the Premises or any
failure by Landlord to collect any rent due upon such reletting; provided,
however, that notwithstanding the foregoing, in the event that Tenant presents
one or more prospective tenants to Landlord, Landlord shall consider in good
faith reletting the Premises or any portion thereof to any such prospective
tenants, provided such tenants are, among other things, of the kind, type,
reputation, creditworthiness and quality typically found in similar buildings.
21.2.2 Damages. Whether or not this Lease or Tenant's right of possession
is terminated following such Default, Tenant nevertheless shall remain liable
for:
(a) all Basic Monthly Rent and Additional Rent (including, without
limitation, all damages sustained by Landlord by reason of the Default) which
have become due until the expiration of the Term or sooner termination of the
Lease (less the amount of rental, if any, that Landlord actually receives during
such period from others to whom the Premises is rented (other than any
Additional Rent received by Landlord as a result of any failure of such other
person to perform any of its obligations to Landlord)), and all costs, fees and
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expenses (including, without limitation, reasonable attorneys' fees, brokerage
fees, and expenses incurred in placing the Premises in first-class rentable
condition including, without limitation, alterations of the Premises), incurred
by Landlord in pursuit of its remedies hereunder or in renting the Premises to
others from time to time (all such Basic Monthly Rent, Additional Rent, damages,
costs, fees and expenses are herein called "Accrued Damages"): and
(b) additional damages commencing as of the day following the last day
Accrued Damages are applicable (herein called "Termination Damages", which, at
the election of Landlord, shall be either (provided that Landlord may initially
elect under Section 21.2.2(b)(i), and subsequently at any time elect under
Section 21.2.2(b)(ii) for the remaining applicable period at the time of such
election):
(i) An amount equal to the Basic Monthly Rent and Additional Rent that
would have become due during the remainder of the Term, and, to the extent
not included in Accrued Damages above, all costs, fees and expenses
(including, without limitation, reasonable attorneys' fees, brokerage fees,
and expenses incurred in placing the Premises in first-class rentable
condition including, without limitation, alterations of the Premises),
incurred by Landlord in pursuit of its remedies hereunder or in renting the
Premises to others from time to time, less the amount of rental, if any,
that Landlord actually receives during such period from others to whom the
Premises is rented (other than any Additional Rent received by Landlord as
a result of any failure of such other person to perform any of its
obligations to Landlord), in which case such Termination Damages shall be
computed and payable in monthly installments, in advance, on the first day
of each calendar month following the last day Accrued Damages are
applicable and continuing until the date on which the Term would have
expired but for Tenant's Default. Separate suits or actions may be brought
to collect any such Termination Damages for any month or months, and such
separate suits or action shall not in any manner prejudice the right of
Landlord to collect any Termination Damages for any subsequent month or
months by similar proceedings, or Landlord may defer any suits or actions
until after the expiration of the Term; or
(ii) The amount determined by subtracting (A) the present value (as of
the first date Termination Damages are applicable) of the fair rental value
of the Premises for the remainder of the Term, taking into account a normal
re-leasing period in which the Premises would be vacant (in determining
such fair rental value, the Basic Monthly Rent and operating cost charges
then being paid by tenants for comparable space in comparable buildings in
equally desirable locations in the Baltimore metropolitan area shall be
considered), from (B) the present value (as of the first date Termination
Damages are applicable) of all Basic Monthly Rent and Additional Rent that
would have become due during the remainder of the Term (with such present
values being determined using a discount rate of eight percent (8%) per
annum), which Termination Damages shall be payable to Landlord in one lump
sum on demand. For this purpose, Additional Rent shall be calculated on the
basis that Tenant's Proportionate Share of increases in Operating Expenses
and Taxes would increase at the rate such expenses have generally increased
in Baltimore metropolitan area for comparable Buildings during the
preceding five (5) years, as reasonably determined by Landlord.
21.2.3 Possession of Premises. Whether or not this Lease is terminated by
reason of Tenant's Default, Landlord may immediately or at any time after the
occurrence of a Default reenter and take possession of the Premises, either by
summary dispossess proceedings, an action for ejectment or by any other suitable
action or proceeding at law or in equity, and the provisions of this Article 21
shall operate as a notice to quit. Tenant hereby expressly waives the right to
receive any other notice to quit or of Landlord's intention to reenter the
Premises.
21.2.4 Cumulative Remedies. Each right and remedy of Landlord provided for
in this Lease and each right or remedy now or hereafter existing at law or in
equity rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or otherwise shall not preclude the simultaneous or
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later exercise of any or all other rights or remedies provided for in this Lease
or now or hereafter existing at law or in equity or otherwise.
21.2.5 Eviction of Tenant. Tenant hereby expressly waives any and all right
of redemption granted by or under any present or future law if Tenant is evicted
or dispossessed for any cause or if Landlord obtains possession of the Premises
by reason of the violation by Tenant of any of the covenants or conditions of
this Lease or otherwise. In addition, Tenant hereby expressly waives any and all
rights to bring any action whatsoever against any tenant taking possession after
Tenant has been dispossessed or evicted hereunder or to make any such tenant a
party to any action brought by Tenant against Landlord.
21.3 Landlord Default. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event, sooner than ten (10) days after written notice by Tenant to
Landlord specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of the Landlord's obligation is such that
more than ten (10) days is required for performance, then Landlord shall not be
in default if Landlord commences performance within such ten (10) days and
thereafter diligently prosecutes the same to completion.
21.4 Agent's Authority. While the Agent shall be collecting the rentals due
from the Tenant, it is hereby authorized by the Landlord to expend such sums as
may be reasonably necessary in connection with the enforcement of payment of
rental and the securing or possession of the Premises in case of Tenant's
default. All such sums expended by the Agent or the Landlord shall be payable by
the Tenant as Additional Rent promptly upon demand therefor. The Landlord agrees
to pay the Agent any of such expenses not so reimbursed promptly upon demand.
22. Several Liability.
If the Tenant shall be one or more individuals, corporations or other
entities, whether or not operating as a partnership or joint venture, then each
such corporation, entity, joint venture or partner shall be deemed to be jointly
and severally liable for the payment of the entire rent and other payments
specified herein and all other duties and obligations of the Tenant hereunder.
23. Estoppel Certificates.
Tenant agrees at any time and from time to time, within ten (10) days
following a request therefor, to execute, acknowledge and deliver to Landlord
and/or Landlord's mortgagee a statement in writing certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications) and the dates to which the rent and other charges have been paid
in advance, if any, and stating whether or not, to the best knowledge of the
signer of such certificate. Landlord is in default in performance of any
covenant, agreement or condition contained in this Lease and, if so, specifying
each such default of which the signer may have knowledge, and such other matters
as Landlord or mortgagee may reasonably request, it being intended that any such
statement delivered hereunder may be relied upon by Landlord, any mortgagee, any
prospective mortgagee, any purchaser of the Property and any prospective
purchaser or investor in the Property. Tenant's failure to execute and deliver
any such estoppel certificate within such ten (10)-day period shall constitute
an immediate Default hereunder.
24. Notices.
All notices, demands and requests required under this Lease shall be in
writing. All such notices shall be deemed to have been properly given if sent by
United States registered or certified mail, return receipt requested, postage
prepaid, by hand delivery or by reputable overnight courier service, addressed
to the parties at the following street addresses (in no event are P.O. Box
addresses acceptable):
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Landlord: c/o Bernstein Management Corporation
5301 Wisconsin Avenue, N.W., Suite 600
Washington, D.C. 20015
Attn. Vice President - Commercial and
Bernstein Management Corporation
5301 Wisconsin Avenue, N.W., Suite 600
Washington, D.C. 20015
Attn. General Counsel
Tenant: Premises And
SavWatt USA, Inc.
475 Park Ave South, Suite 3001
New York, NY 10016
Attn: Isaac H. Sutton, President
Either party may designate a change of address by written notice to the other
party delivered in the manner permitted hereunder; provided, however, that
Tenant may not increase the number of addresses listed, and any attempt to do so
shall be null and void to the extent of the excess addresses listed in any
notice change of address.
Notices, demands and requests which shall be served by registered or
certified mail in the manner aforesaid shall be deemed sufficiently received and
given for all purposes hereunder two (2) days after the time such notice, demand
or request shall be mailed by United States registered or certified mail as
aforesaid in any Post Office or Branch Post Office regularly maintained by the
United States Government. Notices, demands and requests which shall be served by
hand delivery shall be deemed sufficiently received and given for all purposes
hereunder at the time of delivery (or if delivery is refused, at time of
attempted delivery). Notices, demands and requests which shall be served by
overnight courier service shall be deemed sufficiently received and given for
all purposes hereunder at the time delivered to such overnight courier service
(even if delivery is refused). Any improper address (e.g., one not in existence
or not recognized by the delivery company) shall be treated as a refusal of
delivery once the notice is attempted.
25. Severability.
If any term or provision of this Lease or the application thereof to any
person or circumstances shall, to any extent, be determined to be invalid or
unenforceable by a court of competent jurisdiction, the remainder of this Lease
or the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term and provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
26. Captions.
All headings in this Lease are intended for convenience of reference only
and are not to be deemed or taken as a summary of the provisions to which they
pertain or as construction thereof.
27. Successors and Assigns.
The covenants, conditions and agreements contained in this Lease shall bind
and inure to the benefit of (i) Landlord and its heirs, distributees, executors,
administrators, successors and assigns and (ii) Tenant and its heirs,
distributees, executors, administrators, successors and permitted assigns. The
term "Landlord" shall mean only the owner of the Building or the leases of the
Building at the time in question so that in the event of any transfer or
transfers of title to the Building or of Landlord's interest in a lease of the
Building, the transferor shall be and hereby is relieved and freed of all
obligations of Landlord under this Lease accruing after such transfer, and it
shall be deemed, without further agreement, that such transferee has assumed and
agreed to perform and observe all obligations of Landlord herein during the
period it is the holder of Landlord's interest under this Lease.
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28. Governing Law.
This Lease shall be governed by and construed in all respects in accordance
with the laws of the State of Maryland.
29. Incorporation of Prior Agreements.
This Lease contains all agreements of the parties with respect to any
matters contained herein. This Lease may be modified only in wnting and signed
by the parties in interest at the time of the modification.
30. RESERVED.
31. Signage.
Tenant covenants and agrees that it shall not inscribe, affix, or otherwise
display signs, advertisements or notices (collectively, "Signs") in, on. upon,
or behind any windows or on any door, partition, wall or other part of the
interior or exterior of the Building without the prior written consent of the
Landlord, and then only in such place, size, color, number, materials and style
as approved by Landlord. Tenant further covenants and agrees that it shall not
attach or place awnings, antennas or other projections to the outside walls
(collectively, "Exterior Projections"), the roof or any exterior portion of the
Building without the prior written consent of the Landlord. No curtains, blinds,
shades or screens shall be attached to or hung in. or used in connection with
any window or door of the Premises without the prior written consent of the
Landlord (collectively, "Window Treatments"). If such consent is given by
Landlord to Signs, Exterior Projections or Window Treatments, the cost of
installing, inscribing or affixing the approved material (as well as the cost of
removing and disposing of same at the termination or expiration of this Lease)
shall be charged to and be paid by Tenant, and Tenant agrees to pay same
promptly and on demand. Any Signs, Exterior Projections or Window Treatments
which have been placed without Landlord's prior approval may be immediately
removed and disposed of by Landlord at Tenant's expense. Tenant shall be
responsible for keeping any Tenant Sign. Exterior Projection and Window
Treatments in an aesthetic, first class, and good condition, unless Landlord
elects to maintain the sign, and in either case. Tenant shall be responsible for
all maintenance costs of the Sign, Exterior Projections and Window Treatments.
Landlord shall provide and maintain a building standard suite entry sign and a
listing of Tenant's name on the lobby directory (and said listing shall include
Tenant's logo), costs for which may be Operating Expenses hereunder.
32. Miscellaneous.
32.1 General. As used in this Lease, and where the context requires: (a)
the masculine shall be deemed to include the feminine and neuter and vice versa;
and (b) the singular shall be deemed to include the plural and vice versa.
Reference to "days" shall mean calendar days, unless the phrase "business days"
is expressed.
32.2 Waiver of Jury Trial. Landlord and Tenant do hereby waive trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, and/or any claim of injury or damage, and any
emergency statutory or any other statutory remedy.
32.3 Storage Outside Premises. Tenant further covenants and agrees that it
shall not pile or place or permit to be placed any goods on the sidewalks or
parking lots in the front, rear or sides of the Building, or to block said
sidewalks, parking lots and loading areas and not to do anything that directly
or indirectly will take away any of the rights of ingress or egress or of light
from any other tenant of the Landlord.
32.4 Rules and Regulations. Tenant shall abide by and observe, and shall
cause its employees, agents, contractors, invitees and licensees to abide by and
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observe, and Landlord shall not arbitrarily enforce, the rules and regulations
promulgated by Landlord for the use, operation and maintenance of the Building
and such cha nges thereto and such additional reasonable rules and regulations
that Landlord promulgates from time to time during the Term, so long as such
changes or additional rules and regulations are not inconsistent with this
Lease, do not restrict the use of the Premises by Tenant for the uses permitted
by Article 5 and reasonable notice of the changes or additions is given to
Tenant. Such rules and regulations, together with any such changes and
additions, are called the "Rules and Regulations" in this Lease. The Rules and
Regulations in effect on the date of this Lease are set forth on Exhibit C.
32.5 Liability of Landlord. Except for insurance proceeds which Tenant may
be entitled to under this Lease, Tenant agrees to look solely to Landlord's
interest in the Building for the satisfaction of any right or remedy of Tenant
for the collection of a judgment (or other judicial process) requiring the
payment of money by Landlord in the event of any liability by Landlord. Except
as provided above, no other property or assets of Landlord shall be subject to
levy, execution, attachment, or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder, or Tenant's use and occupancy of the Premises, or
any other liability of Landlord to Tenant. In no event shall any partner,
shareholder, director, officer, employee or agent of Landlord incur any personal
liability under this Lease and no such liability shall be sought, obtained or
enforced.
32.6 Time of Essence. Time is of the essence with respect to each and every
obligation of Tenant hereunder.
32.7 Waivers. No failure by Landlord to insist upon the strict performance
of or compliance with any covenant or condition of this Lease or to exercise any
right or remedy consequent upon a breach thereof, and no acceptance of full or
partial Rent during the continuance of any such breach, regardless of any
notation to the contrary accompanying such payment, shall constitute a waiver of
any such breach or of such covenant or condition. No covenant or condition of
this Lease to be performed or complied with by either party, and no breach
thereof, shall be waived, altered or modified except by written instrument
executed by the other party and specifically consenting to the particular
waiver, alteration or modification. No waiver of any breach shall affect or
alter this Lease, but each and every covenant and condition of this Lease shall
continue in full force and effect with respect to any other then existing or
subsequent breach thereof. Neither reentry by Landlord in accordance with the
provisions of this Lease nor acceptance by Landlord of keys from Tenant shall be
considered an acceptance of a surrender of this Lease and neither of those
events shall relieve Tenant of Tenant's obligations to pay Rent and to perform
and comply with all of the other covenants and conditions of this Lease to be
performed or complied with by Tenant. Except as may be expressly provided
herein, if at all, Tenant has no rights to terminate this Lease, and the
provisions of any law to the contrary are hereby waived.
32.8 Attorneys' Fees. If legal action is brought with respect to this
Lease, the substantially prevailing party shall be entitled to reimbursement of
attorneys' fees, expert fees and court costs (including those on any appeal)
from the substantially non-prevailing party. For the purpose of the foregoing,
if judgment for any rent is entered in favor of Landlord, it shall be deemed
that Landlord has prevailed in such action.
32.9 Parking. All parking areas for the Property shall be under the sole
and exclusive control of Landlord, and. except to the extent parking spaces are
leased or offered for lease at the Property, shall be available for the general
use in common by all tenants, their officers, agents, employees and visitors.
All parking areas are subject to reasonable rules for the use thereof which may
from time to time be designated by Landlord, including but not limited to rules
designating areas for employee parking, controlling of ingress and egress,
parking charges, arrangement of spaces and general maintenance of the parking
areas. Tenant shall have the right to lease (i) eight (8) parking spaces at no
charge for the Term of the Lease and (ii) fifteen (15) additional parking spaces
at a rate of Twenty Dollars ($20) per space per month during the initial
twenty-four (24) months of the Term of the Lease. Following the initial
twenty-four (24) months of the Term of the Lease, Tenant may continue to lease
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said fifteen (15) parking spaces at a rate of Forty Dollars (S40) per space per
month for the remainder of the initial Term of the Lease. Tenant shall have the
right to lease additional parking spaces, subject to availability, at a rate of
Forty Dollars ($40) for the initial three (3) years during the initial Term,
subject to change thereafter by Landlord from time to time, based on increases
in the consumer price index known as United States Bureau of Statistics,
Consumer Price Index for All Urban Consumers (1982-1984 = 100), hereinafter
referred to as CPI, from the date of this Lease.
32.10 Waiver of Notice. Tenant waives statutory notice to quit prior to
commencement of an action for summary possession for non-payment of rent.
32.11 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture between Landlord and Tenant,
or create any other relationship between the parties hereto other than that of
landlord and tenant.
32.12 No Representations by Landlord. Neither Landlord nor any agent,
representative or employee of Landlord has made any representation or promise
with respect to the Premises or the Building except as herein expressly set
forth, and no rights, privileges, easements or licenses are granted to or
acquired by Tenant except as herein expressly set forth. Tenant, by taking
possession of the Premises, shall accept the same "as is," and such taking of
possession shall be conclusive evidence that the Premises and the Building are
in good and satisfactory condition at the time of such taking of possession.
32.13 Brokerage. Landlord and Tenant each represent that they have had no
dealing with any real estate broker or other person with respect to this Lease
in any manner except with Cushman & Wakefield of Maryland, Inc. who shall be
compensated by Landlord pursuant to a separate written agreement. Tenant agrees
to indemnify and hold harmless Landlord from any claims for any fees or
commissions that are payable to any broker, individual or entity asserting a
claim for a fee or commission with respect to this Lease, which indemnification
obligation shall survive the expiration or termination of this Lease.
32.14 Reserved Rights. Landlord hereby reserves to itself and its
successors and assigns the following rights (all of which are hereby consented
to by Tenant): (i) to change the street address and/or name of the Building,
(ii) to make such changes, alterations, additions, improvements, repairs, or
replacements in or to the Building, the Premises, or the Property, and the
fixtures and equipment thereof, as well as in or to the street entrances, halls,
passages, elevators, stairways, walkways, driveways, and parking areas thereof,
as it may deem necessary or desirable, (iii) to change the arrangement and/or
location of entrances, passageways, doors, doorways, corridors, elevators,
stairs, toilets, walkways, driveways, and parking areas or other public parts of
the Building or the Property, (iv) to erect, use, and maintain shafts, stacks,
pipes, conduits, wires, appurtenant fixtures, fan rooms, ducts, electric or
other utilities, sinks, or other Building facilities in and through the
Premises,. Landlord may exercise any or all of the foregoing rights without
being deemed to be guilty of an eviction, actual or constructive, or a
disturbance or interruption of the business of Tenant or Tenant's use or
occupancy of the Premises; provided that in its exercise of any or all of the
foregoing rights, Landlord shall not unreasonably restrict Tenant's access to
the Premises.
32.15 Counterparts. This Lease may be executed in several counterparts, and
all counterparts shall constitute one and the same instrument.
32.16 Financials. Upon request by Landlord from time to time, Tenant shall,
within ten (10) calendar days, provide to Landlord or to Landlord's lender such
financial information certified by Tenant to be true and correct as is
reasonably necessary for Landlord or Landlord's lender or any prospective lender
or purchaser, as the case may be, to evaluate the creditworthiness of Tenant
(including without limitation, a statement reflecting all of Tenant's assets and
the nature of Tenant's interest therein).
32.17 Notice to Lender. In the event of any default by Landlord hereunder,
Tenant shall, prior to pursuing any right or remedy available to Tenant
hereunder, send to any lender of which Tenant has notice (the "Mortgagee"), by
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certified mail, return receipt requested, a notice specifying the default by
Landlord, whereupon such Mortgagee shall have the right, but not the obligation,
to cure such default on behalf of Landlord, which cure shall be accepted by
Tenant, and such Mortgagee shall be afforded a reasonable period of time to do
so, including time to obtain possession of the Premises by power of sale or
judicial foreclosure, if such should prove necessary to effect a cure. Tenant
shall have no right to take any other action as a result of Landlord's default
unless and until Tenant complies with the provisions of this paragraph. Nothing
in this paragraph shall create any rights of Tenant that are not otherwise
expressly provided elsewhere herein.
32.18 Agent. Tenant is hereby notified that Landlord has appointed
Bernstein Management Corporation as the "Agent" hereunder. Landlord has
authorized said Agent to act for and in the name of the Landlord for any and all
purposes under this Lease and subsequent amendments thereto, and Tenant shall
direct any and all payments, notices and inquiries of any kind whatsoever
pursuant to and regarding this Lease to the Agent in accordance with the terms
set forth above. Landlord reserves the right to substitute any other person,
firm or corporation as a successor Agent, upon written notice thereof by
Landlord to Tenant. Tenant hereby acknowledges the authority of any such Agent
to act for, and in the name of, the Landlord for any and all purposes under this
Lease. Without limiting any other provision herein, any release or
indemnification of Landlord shall also apply to Agent and to any property
management company(ies) if other than Agent.
32.19 Anti-Terrorism Representation. Tenant certifies that: (i) it is not
acting, directly or indirectly, for or on behalf of any person, group, entity,
or nation named by any Executive Order or the United States Treasury Department
as a terrorist, "Specially Designated National and Blocked Person," or other
banned or blocked person, entity, nation, or transaction pursuant to ny law,
order, rule, or regulation that is enforced or administered by the Office of
Foreign Assets Control; and (ii) it is not engaged in this transaction, directly
or indirectly on behalf of, or instigating or facilitating this transaction,
directly or indirectly on behalf of, any such person, group, entity, or nation.
Tenant hereby agrees to defend, indemnify, and hold harmless Landlord and Agent
from and against any and all claims, damages, losses, risks, liabilities, and
expenses (including attorney's fees and costs) arising from or related to any
breach of the foregoing certification.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this Lease as of the day and year first above written.
WITNESS OR ATTEST: LANDLORD:
BDC WICOMICO LLC
By: Rock Creek Realty LLC, sole member
By: Bernstein Development Corporation,
managing member
By: /s/ Robert S. Sandifer
Print Name: Robert S. Sandifer
Title: EVP
TENANT: SAVWATT USA, INC
By: /s/ Isaac H. Sutton
Print Name: Isaac H. Sutton
Title: President
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Exhibit A
(Map showing the Description of Premises)
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Exhibit B
BUILDING SERVICES
ACCESS:
Building will be accessible twenty-four (24) hours per day, seven (7) days per
week. One access key for the Building's main entrance will be provided for each
employee of Tenant's who will be working at the Premises on the commencement
date. All additional and replacement keys will be provided to Tenant at
Twenty-Five Dollars ($25.00 per key) subject to change from time to time by
Landlord). If applicable, access cards for the Parking Garage must be obtained
by Tenant directly from the Parking Garage operator.
HVAC SERVICES:
For the Common Area of the Building only, base building heating,
ventilation and air conditioning will be provided from 8:00 a.m. to 6:00 p.m.
Monday through Friday and 9:00 a.m. to 1:00 p.m. on Saturday. No service is
provided on Sundays or Holidays
MANAGEMENT:
Management of the Building will be provided by Bernstein Management Corporation
(or such other manager as selected by Landlord).
WINDOW CLEANING:
Windows (exterior and interior) of exterior walls will be washed semi-annually.
Building Services shall specifically exclude Tenant's Separate Services.
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Exhibit C
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules, stairways,
corridors or halls of the Building shall not be obstructed or used for any
purpose other than ingress and egress.
2. No awnings or other projection shall be attached to the outside wall of the
Building without the prior written consent of Landlord. No curtains, blinds,
shades or screens shall be attached to or hung in, or used in connection with,
any window or door of any premises without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed. All electrical ceiling fixtures hung in offices or spaces along the
perimeter of the Building must be fluorescent and/or of a quality, type, design
and bulb color approved by Landlord, which approval shall not be unreasonably
withheld, conditioned, or delayed.
3. The sashes, sash doors, skylights, windows, and doors that reflect or admit
light and air into the halls, passageways or other public places in the Building
shall not be covered or obstructed by any tenant, nor shall any bottle, parcels
or other articles be placed on the window sills.
4. The bathrooms and plumbing fixtures shall not be used for any purpose other
than those for which they were constructed, and no sweepings, rubbish, rags or
other substances shall be thrown therein. All damages resulting from any misuse
of the bathrooms and fixtures shall be borne by the tenant who, or whose
servants, employees, agents, or licensees shall have caused the same.
5. No tenant shall mark, paint, drill into, or in any way deface any part of the
premises or the Building, except as reasonably approved by Landlord. No boring,
cutting or stringing of wires or laying of linoleum or other floor coverings
shall be permitted, except with the prior written consent of the Landlord, and
as Landlord may direct.
6. No bicycles, vehicles or animals (other than those animals assisting disabled
individuals) of any kind shall be brought into or kept in or about any premises,
and no cooking shall be done or permitted by any tenant in any premises, except
cooking in microwave ovens and the preparations of coffee, tea, hot chocolate
and similar items for tenants, their employees and visitors shall be permitted.
7. No premises shall be used for manufacturing or for the storage of merchandise
except as such storage may be incidental to the use of such premises for the
purposes permitted by the Lease. No tenant shall, without the prior written
consent of Landlord, occupy or permit any portion of its premises to be occupied
or used for the manufacture or sale of liquor, narcotics, or tobacco in any
form, as a medical office, as a barber or manicure shop, or as an employment
bureau. No tenant shall engage or pay any employees on its premises except those
actually working for such tenant on its premises nor advertise for laborers
giving an address at its premises. No premises shall be used for lodging or
sleeping or for any immoral or illegal purpose. No tenant shall conduct any
"fire sales", "liquidation sales" or "going out of business sales".
8. No tenant shall make, or permit to be made, any unseemly or disturbing noises
or disturb or interfere with occupants of the Building or neighboring Buildings
or premises or those having business with them by the use of any musical
instrument, radio, phonograph or unusual noise, or in any other way or otherwise
create any nuisance. No tenant shall throw anything out of doors, windows, roof
skylights or down the passageways.
9. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any tenant, nor shall any changes be made in existing locks
or the mechanisms thereof unless Landlord is first notified thereof, gives
written approval, which approval shall not be unreasonably withheld, conditioned
or delayed, and is furnished a key therefor. Each tenant must, upon the
termination of its tenancy, give to Landlord all keys of stores, offices, or
toilets and toilet rooms, either furnished to, or otherwise procured by. such
tenant, and in the event of the loss of any keys so furnished, such tenant shall
pay Landlord the cost of replacing the same or of changing the lock or locks
opened by such lost key if Landlord shall deem it necessary to make such change.
10. All deliveries, shipping, loading or unloading of any safes, freight,
furniture, food, beverages, equipment, merchandise, supplies and other bulky
matter of any description must take place during the hours which Landlord may
reasonably determine from time to time and only upon previous notice to the
Landlord's Agent and under its supervision, and the persons employed by any
tenant for such work must be reasonably acceptable to Landlord. Landlord
reserves the right to inspect all such articles to be brought by any tenant into
the Building and to exclude from the Building any and all such articles which
violate any of these Rules and Regulations or such tenant's lease.
30
11. No tenant shall purchase janitorial, maintenance or other services from any
company or persons not reasonably approved by Landlord.
12. Landlord shall have the right to prohibit any advertising by any tenant
which in Landlord's reasonable opinion, tends to impair the reputation of the
Building or its desirability as an office Building and upon written notice from
Landlord any tenant shall refrain from and discontinue such advertising.
13. Landlord reserves the right to control access to the Building by all persons
after reasonable hours of generally recognized business days and at all hours on
Saturdays and Sundays and legal holidays. Each tenant shall be responsible for
all persons for whom he requests after hours access and shall be liable to
Landlord for all acts of such persons.
14. Any person employed by any tenant to do janitorial work shall, while in the
Building and outside of the Premises, abide by such additional rules and
regulations as may be given orally or in writing by the property manager of the
Building at the property manager's election (but in no event shall any such
person be subject to such control over the manner of its work as to become an
agent or servant of the property manager or the Landlord), and the tenant shall
be responsible for all acts of such persons.
15. All doors opening onto public corridors shall be kept closed, except when
being used for ingress and egress.
16. The requirements of tenants will be attended to only upon application to the
office of the property manager for the Building.
17. Canvassing, soliciting and peddling in the Building are prohibited.
18. No air conditioning unit or other similar apparatus shall be installed or
used by any tenant without the prior written consent of Landlord. Portable space
heaters and other similar apparatus are prohibited.
19. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or others, any hand trucks except those equipped
with rubber tires and side guards.
20. No vending or coin operated machines shall be placed by any tenant within
its premises without the prior written consent of Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed.
21. No flammable, combustible or explosive fluids, chemicals or substances shall
be brought into or stored in the Building.
22. The Rules and Regulations are in addition to, and shall not be construed to
in any way modify or amend, in whole or in part, the terms, covenants,
agreements or conditions of any Lease of the premises in the Building. Landlord
may promulgate from time to time a schedule of fines for violations of any of
the Rules and Regulations. A violation by tenant of any of these Rules and
Regulations, as the same may be amended from time to time, shall constitute a
Default under such Tenant's Lease if such violation continues after notice from
Landlord.
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Exhibit D
Prohibited Uses
1. Any prohibited use which Landlord has advised Tenant is a prohibited use;
provided, however, that the same shall not be deemed to prohibit a use expressly
and specifically permitted by the Lease.
2. Uses for (i) residential purposes, (ii) a private or commercial golf course,
(iii) a country club, (iv) a massage parlor, hot tub or suntan facility, (v) a
race track or other facility used for gambling, (vi) a store the principal
business of which is the sale of alcoholic beverages for consumption off
premises.
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