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EXHIBIT 10.17
INDUSTRIAL LEASE
between
GATEWAY 95 PARTNERS, AN ILLINOIS GENERAL PARTNERSHIP
(Landlord)
and
SENSYS TECHNOLOGIES, INC., A DELAWARE CORPORATION
(Tenant)
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TABLE OF CONTENTS
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INDUSTRIAL LEASE
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Article Title Page
------- ----- ----
1 Definitions 1
2 Premises 2
3 Term 2
4 Rental; Adjustments 2
5 Security Deposit 5
6 Use of Premises 5
7 Utilities and Services 7
8 Maintenance and Repairs 8
9 Alterations, Additions and Improvements 9
10 Indemnifications and Insurance 10
11 Damage or Destruction 12
12 Condemnation 13
13 Relocation 13
14 Assignment and Subletting 13
15 Default and Remedies 15
16 Attorneys' Fees; Costs of ▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇ Quiet Enjoyment 18
19 Parking 18
20 Rules and Regulations 18
21 Estoppel Certificates 18
22 Entry by Landlord 19
23 Landlord's Lease Undertakings-Exculpation from
Personal Liability; Transfer of Landlord's Interest 19
24 Surrender; Holdover Tenancy 19
25 Notices 20
26 Brokers 20
27 Electronic Services 20
28 Miscellaneous 22
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29 Floor Load Limits ▇▇
▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇▇▇ ▇▇
▇▇ Uniform Commercial Code 24
EXHIBITS
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Exhibit A Floor Plan of the Premises
Exhibit B Work Letter Agreement
Exhibit C Suite Acceptance Agreement
Exhibit D Tenant Operations Inquiry
Schedule 1 List of Permissible Hazardous Materials and
to Exhibit D Quantities for Tenant
Exhibit E List of Additional Insureds
Exhibit F Rules and Regulations
Exhibit G Guaranty (Intentionally Omitted)
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INDUSTRIAL LEASE
[FORM NET LEASE/MULTI-TENANT]
THIS LEASE ("Lease"), dated August _____, 1988 is made and entered into
by and between GATEWAY 95 PARTNERS, an Illinois general partnership ("Landlord")
and SENSYS TECHNOLOGIES INC. a Delaware corporation ("Tenant") upon the
following terms and conditions:
ARTICLE I - DEFINITIONS
Unless the context otherwise specifies or requires, the following terms
shall have the meanings specified herein;
1.01 COMPLEX/BUILDING. The term "Complex" shall mean that certain
office/warehouse building complex located in Newington, Virginia, commonly known
as Gateway 95 Business Park together with all related site land, improvements,
parking facilities, common areas, driveways, sidewalks and landscaping. If the
Complex consists of more than one office/warehouse building, the term "Building"
shall mean the office/warehouse building in the Complex in which the Premises
(as hereinafter defined) are situated.
1.02 PREMISES. The term "Premises" shall mean Space No. 1700 in the
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Building, as more particularly outlined on the drawing
attached hereto as Exhibit A and incorporated herein by reference.
1.03 RENTABLE AREA OF THE PREMISES. The term "Rentable Area of the
Premises" shall mean 7,634 square feet, which Landlord and Tenant have
stipulated as the Rentable Area of the Premises.
1.04 LEASE TERM. The term "Lease Term" or "Term" shall mean the period
between the Commencement Date and the Expiration Date (as such terms are
hereinafter defined), unless sooner terminated or renewed as otherwise provided
in this Lease.
1.05 COMMENCEMENT DATE. Subject to adjustment as provided in Article 3,
the term "Commencement Date" shall mean October 1, 1998.
1.06 EXPIRATION DATE. Subject to adjustment as provided in Article 3,
the term "Expiration Date" shall mean September 30, 2003.
1.07 BASE RENT. Subject to adjustment as provided in Article 4, the
term "Base Rent" shall mean Six Thousand Nine Hundred Ninety Seven and 83/100
Dollars ($6,997.83) per month.
1.08 TENANT'S PERCENTAGE SHARE. The term "Tenant's Percentage Share"
shall mean One and 7/100ths. percent (1.7%) with respect to Operating Expenses
(as hereinafter defined), Thirteen and 17/100ths percent (13.17%) with respect
to Property Taxes (as hereinafter defined), One and 7/100ths. percent (1.7%)
with respect to Insurance Expenses (as hereinafter defined) and One and
7/100ths. percent (1.7%) with respect to Tenant's law compliance obligations
under Section 6.02(C) of this Lease and for all other purposes under this Lease.
Landlord may reasonably redetermine Tenant's Percentage Share from time to time
to reflect reconfigurations, additions or modifications to the Complex.
1.09 SECURITY DEPOSIT. The term "Security Deposit" shall mean Eight
Thousand Four Hundred and Ninety Nine and 19/100 Dollars ($8,499.19).
1.10 TENANT'S PERMITTED USE. The term "Tenant's Permitted Use" shall
mean general office and no other use.
1.11 LANDLORD'S ADDRESS FOR NOTICES. The term "Landlord's Address for
Notices" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Virginia Management Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Properties Ltd., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attn: Property Management.
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1.12 TENANT'S ADDRESS FOR NOTICES. The term "Tenant's Address for
Notices" shall mean Sensys Technologies Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇ with copy to Tenant, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
1.13 BROKER. The term "Broker" shall mean ▇▇▇▇▇▇▇ Virginia Management
Inc.
1.14 GUARANTOR. The term "Guarantor" shall mean N/A.
1.15 AGENCY DISCLOSURE. Pursuant to Regulation 6.3B of the Virginia
Real Estate Board, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ hereby disclose(s) she is acting on behalf
of ▇▇▇▇▇▇▇ Virginia Management Inc., ("▇▇▇▇▇▇▇") as agent for GATEWAY 95
PARTNERS, an Illinois general partnership ("Landlord"). As such agent, ▇▇▇▇▇▇▇
and the individuals representing ▇▇▇▇▇▇▇ are representing the interests of the
Landlord.
ARTICLE II - PREMISE
2.01 LEASE OF PREMISES. Landlord hereby leases the Premises to Tenant,
and Tenant hereby leases the Premises from Landlord, upon all of the terms,
covenants and conditions contained in this Lease. On the
Commencement Date described herein, Landlord shall deliver the Premises to
Tenant in the condition described in Section 2.02 below and in substantial
conformance with the Work Letter Agreement attached hereto as Exhibit B, if any.
2.02 ACCEPTANCE OF PREMISES. Tenant acknowledges that Landlord has not
made any representation or warranty with respect to the condition of the
Premises or the Building or with respect to the suitability or fitness of either
for the conduct of Tenant's Permitted Use or for any other purpose, except that
Landlord shall ensure that any existing heating, ventilating and air
conditioning ("HVAC") equipment serving the Premises is in good working order
and repair as of the Commencement Date (and Tenant shall thereafter keep such
equipment in good working order and repair as provided in Section 8.02 hereof).
Prior to Tenant's taking possession of the Premises, Landlord or its designee
and Tenant will walk the Premises for the purpose of reviewing the condition of
the Premises (and the condition of completion and workmanship of any tenant
improvements which Landlord is required to construct in the Premises pursuant to
this Lease); after such review, Tenant shall execute a Suite Acceptance Letter
in the form and content of Exhibit C attached hereto, accepting the Premises.
Except as is expressly set forth in this Section 2.02 or the Work Letter
Agreement attached hereto, if any, or as may be expressly set forth in said
Suite Acceptance Letter, Tenant agrees to accept the Premises in its "as is"
physical condition without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations, repairs or
improvements (or to provide any allowance for same).
2.03 COMMON AREAS. Tenant and Tenant's employees and invitees may use
the common areas of the Building, on a non-exclusive basis in common with all
other parties to whom the right to use such common areas has been or is
hereafter granted. Tenant shall not interfere in any way with the use of the
common areas by such other parties, and Tenant's use of the common areas shall
be subject to the other provisions of this Lease. Landlord shall administer,
operate, clean, maintain and repair the common areas of the Building and the
Complex and the costs and expenses thereof shall be included in the definition
of "Operating Expenses" set forth below. If the Building is in a Complex
containing one or more other buildings, Landlord may designate separate common
areas for the Building, for the Complex as a whole ("Complex Common Areas"), and
for other portions of the Complex ("Other Common Areas"). In such case, Tenant
and Tenant's employees and invitees shall not use the Other Common Areas.
ARTICLE III - TERM
3.01 Except as otherwise provided in this Lease, the Lease Term shall
be for the period described in Section 1.04 of this Lease, commencing on the
Commencement Date described in Section 1.05 of this Lease and ending on the
Expiration Date described in Section 1.06 of this Lease; provided, however,
that, if, for any reason, Landlord is unable to deliver possession of the
Premises on the date described in Section 1.05 of this Lease, Landlord shall not
be liable for any damage caused thereby, nor shall the Lease be void or
voidable, but, rather, the Lease Term shall commence upon, and the Commencement
Date shall be the date that possession of the Premises is so tendered to Tenant
(except for Tenant-caused delays which shall not be deemed to delay commencement
of the Lease Term), and, unless Landlord elects otherwise, the Expiration Date
described in Section 1.06 of this Lease shall be extended by an equal number of
days.
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ARTICLE IV - RENTAL; ADJUSTMENTS
4.01 DEFINITIONS. As used herein,
(A) "Property Taxes" shall mean the aggregate amount of all real
estate taxes, assessments (whether they be general or special), sewer
rents and charges, transit taxes, taxes based upon the receipt of rent
and any other federal, state or local governmental charge, general,
special, ordinary or extraordinary (but not including income or franchise
taxes, capital stock, inheritance, estate, gift, or any other taxes
imposed upon or measured by Landlord's gross income or profits, unless
the same shall be imposed in lieu of real estate taxes or other ad
valorem taxes), which Landlord shall pay or become obligated to pay in
connection with the Building or any part thereof. Property Taxes shall
also include all fees and costs, including attorneys' fees, appraisals
and consultants' fees, incurred by Landlord in seeking to obtain a
reassessment, reduction of, or a limit on the increase in, any Property
Taxes, regardless of whether any reduction or limitation is obtained.
Property Taxes for any calendar year shall be Property Taxes which are
due for payment or paid in such year. Property Taxes shall include any
tax, assessment, levy, imposition or charge imposed upon Landlord and
measured by or based in whole or in part upon the Building or the rents
or other income from the Building to the extent that such items would be
payable if the Building was the only property of Landlord subject to same
and the income received by Landlord from the Building was the only income
of Landlord. Property Taxes shall also include any personal property
taxes imposed upon the furniture, fixtures, machinery, equipment,
apparatus, systems and appurtenances of Landlord used in connection with
the Building.
(B) "Operating Expenses" shall mean all costs, fees, disbursements
and expenses paid or incurred by or on behalf of Landlord in the
operation, ownership, maintenance, insurance, management, replacement and
repair of the Complex (excluding Property Taxes).
Operating Expenses shall not include costs of alteration of the
premises of tenants of the Complex, or depreciation charges, interest and
principal payments on mortgages, ground rental payments, real estate
brokerage and leasing commissions, expenses incurred in enforcing
obligations of tenants of the Complex, salaries and other compensation of
executive officers of the managing agent of the Complex senior to the
Complex manager, costs of any special service provided to any one tenant
of the Complex but not to tenants of the Complex generally, and costs of
marketing or advertising the Complex.
(C) "Insurance Expenses" shall mean all costs, fees, disbursements
and expenses paid or incurred by or on behalf of Landlord for premiums
for hazard, "all risk", casualty, rent interruption and liability
insurance and all other insurance, obtained by Landlord in connection
with or relating to the Complex.
For purposes of calculating the Tax Adjustment, the Operating Expense
Adjustment, and the Insurance Adjustment (as such terms are defined in Sections
4.02, B, C and D hereof), Property Taxes, Operating Expenses and Insurance
Expenses hereinabove defined shall each be increased by fifteen (15%) percent to
cover Landlord's administrative costs in connection with the Complex.
If the Building does not have one hundred percent (100%) occupancy during
an entire year, then the variable cost components of Property Taxes shall be
adjusted so that the total amount of Property Taxes equals the amount which
would have been paid or incurred by Landlord had the Building been one hundred
percent (100%) occupied for the entire calendar year.
If the Complex does not have one hundred percent (100%) occupancy during
an entire year, then the variable cost components of Operating Expenses and
Insurance Expenses shall be adjusted so that the total amount of Operating
Expenses and Insurance Expenses equals the amount which would have been paid or
incurred by Landlord had the Complex been one hundred percent (100%) occupied
for the entire calendar year.
4.02 BASE RENT. During the Lease Term, Tenant shall pay to Landlord as
rental for the Premises the Base Rent described in Section 1.07 above, subject
to the following annual adjustments (herein called the "Rent Adjustments"):
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(A) During each twelve (12) month period subsequent to the first
complete twelve (12) month period occurring during the Lease Term, the
Base Rent payable by Tenant to Landlord as described in Section 1.07
shall be increased by three percent (3%) (the "Annual Adjustment").
(B) During each calendar year during the Lease Term, the Base Rent
payable by Tenant to Landlord, as adjusted pursuant to Section 4.02(A)
above, shall be increased by Tenant's Percentage Share of the Property
Taxes for such year (the "Tax Adjustment").
(C) During each calendar year during the Lease Term, the Base Rent
payable by Tenant to Landlord, as adjusted pursuant to Section 4.02(A)
above, also shall be increased by Tenant's Percentage Share of the
Operating Expenses paid or incurred by Landlord during such year (the
"Operating Expense Adjustment").
(D) During each calendar year during the Lease Term, the Base Rent
payable by Tenant to Landlord, as adjusted pursuant to Section 4.02(A)
above, also shall be increased by Tenant's Percentage Share of the
Insurance Expenses for such year (the "Insurance Adjustment").
(E) The Tax Adjustment, the Operating Expense Adjustment and the
Insurance Adjustment are hereinafter referred to collectively as the
"Tax, Operating Expense and Insurance Adjustments").
4.03 ADJUSTMENT PROCEDURE; ESTIMATES. The Tax, Operating Expense and
Insurance Adjustments specified in Sections 4.02(B), 4.02(C) and 4.02(D) shall
be determined and paid as follows:
(A) During each calendar year during the Lease Term, Landlord
shall give Tenant written notice of Landlord's estimate of amounts
payable under Sections 4.02(B), 4.02(C), and 4.02(D) for that calendar
year. On or before the first day of each calendar month during the
calendar year, Tenant shall pay to Landlord one-twelfth (1/12th) of such
estimated amounts; provided, however, that, not more often that
quarterly, Landlord may, by written notice to Tenant, revise its estimate
for such year, and subsequent payments by Tenant for such year shall be
based upon such revised estimate.
(B) Within one hundred twenty (120) days after the close of each
calendar year in which any Rent Adjustment is made or as soon thereafter
as is practicable, Landlord shall deliver to Tenant a statement of that
year's Property Taxes, Operating Expenses and Insurance Expenses, and the
actual Tax, Operating Expense and Insurance Expense Adjustments to be
made pursuant to Sections 4.02(B), 4.02(C) and 4.02(D) for such calendar
year, as determined and certified by Landlord (the "Landlord's
Statement") and such Landlord's Statement shall be binding upon Tenant,
except as provided in Section 4.04 below. If the amount of the actual Tax
Adjustment, Insurance Adjustment or Operating Expense Adjustment is more
than the estimated payments for the Tax Adjustment, Insurance Adjustment
or Operating Expense Adjustment for such calendar year made by Tenant,
Tenant shall pay the deficiency to Landlord upon receipt of Landlord's
Statement. If the amount of the actual Tax Adjustment, Insurance
Adjustment or Operating Expense Adjustment is less than the estimated
payments for such calendar year made by Tenant, any excess shall be
credited against Rent (as hereinafter defined) next payable by Tenant
under this Lease or, if the Lease Term has expired, any excess thereof
shall be paid to Tenant. No delay in providing the statements described
in this Section 4.03(B) shall act as a waiver of Landlord's right to
payment under Sections 4.02(B), 4.02(C) or 4.02(D) above. Notwithstanding
the foregoing, Tenant's right to receive any credit or payment pursuant
to the preceding sentences of this Section 4.03(B) is conditioned on this
Lease being in full force and effect and Tenant not being in default
under this Lease on the date such credit or payment is due.
(C) If this Lease shall terminate on a day other than the end of a
calendar year, the amount of the Tax, Operating Expense and Insurance
Adjustments to be paid pursuant to Sections 4.02(B), 4.02(C) and 4.02(D)
that is applicable to the calendar year in which such termination occurs
shall be prorated on the basis of the number of days from January 1 of
the calendar year to the termination date bears to 365. The termination
of this Lease shall not affect the obligations of Landlord and Tenant
pursuant to Sections 4.03(B) and 4.03(C) to be performed after such
termination.
4.04 REVIEW OF LANDLORD'S STATEMENT. Provided this Lease is in full
force and effect and that Tenant is not then in default under this Lease and
provided further that Tenant strictly complies with the provisions of this
Section 4.04, Tenant shall have the right, once each calendar year, to
reasonably review supporting data for any portion of a Landlord's Statement that
Tenant claims is incorrect, in accordance with the following procedure:
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(A) Tenant shall, within ten (10) business days after any such
Landlord's Statement is delivered, deliver a written notice to Landlord
specifying the portions of the Landlord's Statement that are claimed to
be incorrect, and Tenant shall simultaneously pay to Landlord all amounts
due from Tenant to Landlord as specified in the Landlord's Statement.
Except as expressly set forth in subsection (C) below, in no event shall
Tenant be entitled to withhold, deduct, or offset any monetary obligation
of Tenant to Landlord under the Lease (including, without limitation,
Tenant's obligation to make all payments of Base Rent including the CPI
Adjustment and all payments of Tenant's Tax, Operating Expense and
Insurance Adjustments) pending the completion of and regardless of the
results of any review of records under this Section 4.04. The right of
Tenant under this Section 4.04 may only be exercised once for any
Landlord's Statement, and if Tenant fails to meet any of the above
conditions as a prerequisite to the exercise of such right, the right of
Tenant under this Section 4.04 for a particular Landlord's Statement
shall be deemed waived.
(B) Tenant acknowledges that Landlord maintains its records for
the Complex at Landlord's manager's corporate offices and Tenant agrees
that any review of records under this Section 4.04 shall be at the sole
expense of Tenant and shall be conducted by an independent firm of
certified public accountants of national standing. Tenant acknowledges
and agrees that any records reviewed under this Section 4.04 constitute
confidential information of Landlord, which shall not be disclosed to
anyone other than the accountants performing the review and the
principals of Tenant who receive the results of the review. The
disclosure of such information to any other person, whether or not caused
by the conduct of Tenant, shall constitute a material breach of this
Lease.
(C) Any errors disclosed by the review shall be promptly corrected
by Landlord, provided, however, that if Landlord disagrees with any such
claimed errors, Landlord shall have the right to cause another review to
be made by an independent firm of certified public accountants of
national standing. In the event of a disagreement between the two
accounting firms, the review that discloses the least amount of deviation
from the Landlord's Statement shall be deemed to be correct. In the event
that the results of the review of records (taking into account, if
applicable, the results of any additional review caused by Landlord)
reveal that Tenant has overpaid obligations for a preceding period, the
amount of such overpayment shall be credited against Tenant's subsequent
installment obligations to pay the estimated Tax, Operating Expense and
Insurance Adjustments. In the event that such results show that Tenant
has underpaid its obligations for a preceding period, Tenant shall be
liable for Landlord's actual accounting fees, and the amount of such
underpayment shall be paid by Tenant to Landlord with the next succeeding
installment obligation of estimated Tax, Operating Expense and Insurance
Adjustment.
4.05 PAYMENT. Concurrently with the execution hereof, Tenant shall pay
Landlord Base Rent for the first calendar month of the Lease Term. Thereafter
the Base Rent described in Section 1.07, as adjusted in accordance with Section
4.02, shall be payable in advance on the first day of each calendar month. If
the Commencement Date is other than the first day of a calendar month, the
prepaid Base Rent for such partial month shall be prorated in the proportion
that the number of days this Lease is in effect during such partial month bears
to the total number of days in the calendar month. All Rent, and all other
amounts payable to Landlord by Tenant pursuant to the provisions of this Lease,
shall be paid to Landlord, without notice, demand, abatement, deduction or
offset, in lawful money of the United States at Landlord's office in the Complex
or to such other person or at such other place as Landlord may designate from
time to time by written notice given to Tenant. No payment by Tenant or receipt
by Landlord of a lesser amount than the correct Rent due hereunder shall be
deemed to be other than a payment on account; nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be deemed
to effect or evidence an accord and satisfaction; and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance or
pursue any other remedy in this Lease or at law or in equity provided.
4.06 LATE CHARGE; INTEREST. Tenant acknowledges that the late payment
of Base Rent or any other amounts payable by Tenant to Landlord hereunder (all
of which shall constitute additional rental to the same extent as Base Rent)
will cause Landlord to incur administrative costs and other damages, the exact
amount of which would be impracticable or extremely difficult to ascertain.
Landlord and Tenant agree that if Landlord does not receive any such payment on
or before five (5) days after the date the payment is due, Tenant shall pay to
Landlord, as additional rent, (a) a late charge equal to five percent (5%) of
the overdue amount to cover such additional administrative costs; and (b)
interest on the delinquent amounts at the lesser of the maximum rate permitted
by law if any or twelve percent (12%) per annum from the date due to the date
paid.
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4.07 ADDITIONAL RENT. For purposes of this Lease, all amounts payable
by Tenant to Landlord pursuant to this Lease, whether or not denominated as
such, shall constitute Base Rent. Any amounts due Landlord shall sometimes be
referred to in this Lease as "Rent".
4.08 ADDITIONAL TAXES. In addition to the Rent and other charges to be
paid by Tenant hereunder, Tenant shall reimburse Landlord upon demand for all
taxes payable by or imposed upon Landlord upon or with respect to: any fixtures
or personal property located in the Premises; any leasehold improvements made in
or to the Premises by or for Tenant; the Rent payable hereunder, including,
without limitation, any gross receipts tax, license fee or excise tax levied by
any governmental authority; the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy of any portion of the Premises
(including, without limitation, any applicable possessory interest taxes); or
this transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises.
ARTICLE V - SECURITY DEPOSIT
5.01 Upon the execution of this Lease, Tenant shall deposit with
Landlord the Security Deposit described in Section 1.09 above. The Security
Deposit is made by Tenant to secure the faithful performance of all the terms,
convenants and conditions of this Lease to be performed by Tenant. If Tenant
shall default with respect to any covenant or provision hereof, Landlord may
use, apply or retain all or any portion of the Security Deposit to cure such
default or to compensate Landlord for any loss or damage which Landlord may
suffer thereby. If Landlord so uses or applies all or any portion of the
Security Deposit, Tenant shall immediately upon written demand deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to the full
amount hereinabove stated. Landlord shall not be required to keep the Security
Deposit separate from its general accounts and Tenant shall not be entitled to
interest on the Security Deposit. Within thirty (30) days after the expiration
of the Lease Term and the vacation of the Premises by Tenant, the Security
Deposit, or such part as has not been applied to cure the default, shall be
returned to Tenant. In the event of any bankruptcy or other proceeding initiated
by or against Tenant, it is agreed that all such Security Deposit held hereunder
shall be deemed to be applied by Landlord to Rent, sales tax and all other
charges due from Tenant to Landlord for the last month of the Term and each
preceding month until such Security Deposit if fully applied.
ARTICLE VI - USE OF PREMISES
6.01 TENANTS PERMITTED USE. Tenant shall use the Premises only for
Tenant's Permitted Use as set forth in Section 1.10 above and shall not use or
permit the Premises to be used for any other purpose. Tenant shall, at its sole
cost and expense, obtain all governmental licenses and permits required to allow
Tenant to conduct Tenant's Permitted Use. Landlord disclaims any warranty that
the Premises are suitable for Tenant's use and Tenant acknowledges that it has
had a full opportunity to make its own determination in this regard.
6.02 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS.
(A) Tenant shall cause the Premises to comply in all material
respects with all laws, ordinances, regulations and directives of any
governmental authority having jurisdiction including, without limitation,
any certificate of occupancy and any law, ordinance, regulation,
covenant, condition or restriction affecting the Complex or the Premises
which in the future may become applicable to the Premises (collectively
"Applicable Laws").
(B) Tenant shall not use the Premises, or permit the Premises to
be used, in any manner which: (a) violates any Applicable Law; (b) causes
or is reasonably likely to cause damage to the Complex or the Premises;
(c) violates a requirement or condition of any fire and extended
insurance policy covering the Complex and/or the Premises, or increases
the cost of such policy; (d) constitutes or is reasonably likely to
constitute a nuisance, annoyance or inconvenience to other tenants or
occupants of the Complex or its equipment, facilities or systems; (e)
interferes with, or is reasonably likely to interfere with, the
transmission or reception of microwave, television, radio, telephone or
other communication signals by antennae or other facilities located in
the Complex; or (f) violates the Rules and Regulations described in
Article XX.
(C) In addition to any other amounts payable by Tenant to Landlord
hereunder, Tenant shall pay to Landlord, as and when billed to Tenant and
as additional rental, Tenant's Percentage Share of the cost of any
improvements, capital expenditures, repairs or replacements to the
Complex, or any equipment or
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machinery used in connection with the Complex, if any such item is
required under any Applicable Law as of the date of this Lease and
throughout the Lease Term; provided, however, that any such costs which
are properly charged to a capital account (together with reasonable
financing charges) shall be amortized for purposes of this Lease over the
shorter of (i) their useful lives, or (ii) three (3) years, and only the
annual amortization amount (prorated based on the number of days of the
Lease term in the calendar year) shall be payable by the Tenant with
respect to any calendar year.
6.03 HAZARDOUS MATERIALS.
(A) No Hazardous Materials (as defined herein) shall be Handled
(as defined herein) upon, about, above or beneath the Premises or any
portion of the Building or the Complex by or on behalf of a Responsible
Party (as defined herein) unless the Hazardous Materials are listed in
Exhibit D hereto and then only in the quantities listed in the exhibit.
Any such Hazardous Materials so Handled, or the presence or migration of
which is a result of the act or omission of a Responsible Party, shall be
known as Tenant's Hazardous Materials. Notwithstanding the foregoing,
Landlord acknowledges that, due to Tenant's permitted use of the
Premises, as indicated in Paragraph 6.01 of this Lease, Tenant will
occasionally Handle Hazardous Materials on the Premises which are in
transit to their final destination; however, such presence and Handling
of Hazardous Materials shall be in compliance with all applicable
federal, state, local and environmental laws and regulations and the
following guidelines: (i) no nuclear or explosive materials will be
Handled by Tenant on the Premises, except such radioactive isotopes as
Tenant may Handle from time to time; provided that such Handling shall be
in accordance with the U.S. Department of Transportation regulations and
the International Airtransport Association Dangerous Goods regulations;
(ii) all Hazardous Materials will be Handled in a well-marked area which
is segregated from other storage and handling areas and is used
exclusively for hazardous materials; (iii) Hazardous Materials will be
Handled in such a way that any such Materials which are incompatible or
reactive to each other shall be kept separate at all times such Materials
are on the Premises; (iv) Hazardous Materials shall only be Handled on
the Premises for a maximum period of twenty-four (24) hours; (v) Tenant
shall provide written documents or other written evidence to Landlord
upon execution of the Lease that all personnel who are responsible for
the Handling or other contact with Hazardous Materials have been properly
trained, in accordance with any applicable laws and/or regulations, to
handle spills of Hazardous Materials and that the required, appropriate
spill response equipment is maintained on site; (vi) Tenant will provide
Landlord with written evidence that it is maintaining the appropriate
insurance coverage for the occasional presence of such Hazardous
Materials on the Premises upon execution of this Lease; and (vii) Tenant
will provide Landlord with written evidence that all of its employees
whose responsibilities include driving Tenant's trucks or other vehicles
are licensed in accordance with state, federal and local laws and
regulations to transport and Handle Hazardous Materials. Also,
notwithstanding the foregoing, normal quantities of those Tenant
Hazardous Materials customarily used in the conduct of general
administrative and executive office activities (e.g., copier fluids and
cleaning supplies) may be Handled at the Premises without Landlord's
prior written consent.
(B) Tenant's Hazardous Materials shall be Handled at all times in
compliance with the manufacturer's instructions therefore and all
applicable Environmental Laws (as defined herein). Tenant's Hazardous
Materials shall not be disposed of, released, discharged or permitted to
spill, leak or migrate upon about, above or beneath the Premises or any
portion of the Building.
(C) Tenant agrees to maintain only the Hazardous Materials listed
in Schedule 1 to Exhibit D in or at the Premises or the Building an only
in the quantities listed in Schedule 1 to Exhibit D. Tenant further
agrees that changes to the type and quantities of such Tenant's Hazardous
Materials may be done only with the prior written consent of the
Landlord, which consent shall not be unreasonably withheld. Tenant
further agrees that Landlord shall have the right to inspect the Building
to verify the types and quantities of the materials stored therein.
(D) Notwithstanding the obligation of Tenant to indemnify Landlord
pursuant to this Lease, Tenant shall, at its sole cost and expense,
promptly take all actions required by any Regulatory Authority, or
necessary for Landlord to make full economic use of the Premises or any
portion of the Building or the Complex which requirements or necessity
arises from the Handling, presence or migration of Tenant's Hazardous
Materials upon, about, above or beneath the Premises or any portion of
the Building or Complex. Such actions shall include, but not be limited
to, the investigation of the environmental condition of the Premises or
any portion of the Building or the Complex the preparation of any
feasibility studies or reports and the performance of any cleanup,
remedial, removal or restoration work. Tenant shall take all actions
necessary to restore the Premises or any portion of the Building or the
Complex to the condition
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existing prior to the introduction of Tenant's Hazardous Materials,
notwithstanding any less stringent standards or remediation allowable
under applicable Environmental Laws. Tenant shall nevertheless obtain
Landlord's written approval prior to undertaking any actions required by
this Section, which approval shall not be unreasonably withheld so long
as such actions would not potentially have a material adverse long-term
or short-term effect on the Premises or any portion of the Building or
the Complex.
(E) Tenant shall immediately notify Landlord of; (i) its knowledge
of any disposal, release, discharge, spill, leak on, about, above, or
beneath, or any migration to or from the Premises or the Building of
Hazardous Materials, (ii) any inspection, enforcement, cleanup or other
regulatory action taken or threatened by any Regulatory Authority with
respect to any Hazardous Materials on, about, above, beneath or from the
Premises or the Building or the migration thereof from or to other
property, (iii) any demands or claims made or threatened by any party
relating to any loss or injury claimed to have resulted from any
Hazardous Materials on, about, above, beneath or from the Building, and
(iv) any matters where Tenant is required by Law to give a notice to any
Regulatory Authority concerning Hazardous Materials on or from the
Premises or the Building. Landlord shall have the right but not the
obligation to notify Regulatory Authorities concerning actual and claimed
violations of this Article.
(F) Tenant agrees to execute affidavits, representations and the
like from time to time at Landlord's request stating Tenant's best
knowledge and belief regarding the presence of Hazardous Materials in the
Premises or in or at the Building.
(G) "Environmental Laws" means and includes all now and hereafter
existing statutes, laws, ordinances, codes, regulations, rules, rulings,
orders, decrees, directives, policies and requirements by any federal,
state or local governmental authority regulating, relating to, or
imposing liability or standards of conduct concerning public health and
safety or the environment.
(H) "Hazardous Materials" means: (a) any material or substance:
(i) which is defined or becomes defined as a "hazardous substance,"
"hazardous waste," "infectious waste," "chemical mixture or substance,"
or "air pollutant" under Environmental Laws; (ii) containing petroleum,
crude oil or any fraction thereof; (iii) containing polychlorinated
biphenyls (PCB's); (iv) containing asbestos; (v) which is radioactive;
(b) any other material or substance displaying toxic, reactive, ignitable
or corrosive characteristics, as all such terms are used in their
broadest sense, and are defined, or become defined by Environmental Laws;
or (c) materials which cause a nuisance upon or waste to the Premises or
any portion of the Building or the Complex.
(I) "Handle," "handle," "Handled," "handled," "Handling," or
"handling" shall mean any installation, handling, generation, storage,
treatment, use, disposal, discharge, release, manufacture, refinement,
emission, abatement, removal, transportation, or any other activity of
any type in connection with or involving Hazardous Materials.
(J) "Responsible Party" shall mean Tenant, its subtenants and its
assignees, and their respective contractors, clients, officers,
directors, employees, agents, and invitees, or any of them, as the case
may be.
(K) "Regulatory Authority" shall mean any federal, state or local
governmental agency, commission, board or political subdivision.
ARTICLE VII - UTILITIES AND SERVICES
7.01 SERVICES. Landlord shall permit Tenant to use any existing utility
service connection into the Premises and Tenant, at its sole expense, shall
arrange with the appropriate utility company to install all necessary
connections and without fail to maintain in continuous operation during the
entire term of the Lease, all such utility service, whether or not Tenant is in
actual possession of the Premises. Tenant shall pay to the appropriate utility
company or other provider directly, or at Landlord's election as provided in
Section 7.02 below, to Landlord, for all water, gas, heat, electricity, light,
power, sweeping and other janitorial services, rubbish and trash disposal, pest
and rodent control, sewer, steam, fire protection, alarm or other security
services and any other utilities and services supplied in, about or related to
the Premises, together with any taxes thereon, connection charges and deposits,
and also shall pay for all electrical light bulbs, lamps and tubes in connection
therewith. Landlord reserves the right during the Term of this Lease to grant
easements or public utility purposes on, over, or below the Premises without any
abatement in rent, provided that said easements do not unreasonably interfere
with the normal operation of the
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business conducted by Tenant in the Premises. Landlord shall not be required to
pay for any service, supplies or upkeep in connection with the Premises. Tenant
shall arrange for and pay for all telephone and other communication services and
equipment, including any additions or alterations to the existing telephone
service boards and conduit, which shall be completed without interference to the
service and/or equipment of other tenants in the Building or the Complex, if
applicable, and which shall be appropriately labeled upon the termination of
this Lease.
7.02 SEPARATE METERING. If any utilities are not separately metered for
the Premises, Landlord may: (i) require that Tenant make reasonable arrangements
to share such utilities with the other parties whose premises are on such meter,
(ii) require that Tenant pay Landlord a share of such utilities based on the
Rentable Area of the Premises as a percentage of the total rentable area of
occupied space that is jointly metered, or (iii) require that Tenant pay
Landlord a share of such utilities based on consumption estimates of Landlord's
engineer or consultant (in which case, such engineer's or consultant's fees and
costs shall be added to the utility bills). In such case, either Landlord or
Tenant may elect to install separate meters (but the costs of installing,
maintaining and reading such meters shall be borne by Tenant). Landlord may
reasonably estimate in advance any amounts payable by Tenant to Landlord
hereunder and Tenant shall pay such amounts within ten (10) days after the same
are billed, subject to periodic adjustment (and additional payment by Tenant or
credit or refund by Landlord) after the actual amounts have been determined.
7.03 INSTALLATION, CONNECTION AND USE OF UTILITY EQUIPMENT. Tenant
shall install and connect all equipment and lines required to supply such
utilities to the extent not already available at or serving the Premises, or at
Landlord's option shall repair, alter or replace any such existing items (or
Tenant shall share the costs thereof for any equipment shared with other
tenants), subject to the terms of Section 2.02 hereof. Tenant shall maintain,
repair and replace all such items, operate the same, and keep the same in good
working order, condition and repair, as provided in Section 8.02. Tenant shall
not install any equipment or fixtures, or use the same, so as to exceed the safe
and lawful capacity of any utility equipment or lines serving the same. The
installation, alteration, replacement or connection of any utility equipment and
lines shall be subject to the requirements for Alterations of the Premises set
forth in Article 9. Tenant shall ensure that any supplemental HVAC equipment is
installed and all HVAC equipment is operated at all times in a manner to prevent
roof leaks, damage or noise due to vibrations or improper installation,
maintenance or operation. Tenant shall at all times keep the Premises
sufficiently heated to avoid freezing of pipes.
7.04 INTERRUPTION OF SERVICES. Landlord shall not be liable for any
failure to furnish, stoppage of, or interruption in furnishing any of the
services or utilities described in Section 7.01, when such failure is caused by
accident, breakage, repairs, strikes, lockouts, labor disputes, labor
disturbances, governmental regulation, civil disturbances, acts of war,
moratorium or other governmental action, or any other cause beyond Landlord's
reasonable control, and, in such event, Tenant shall not be entitled to any
damages nor shall any failure or interruption ▇▇▇▇▇ or suspend Tenant's
obligation to pay Base Rent and additional rent required under this Lease or
constitute or be construed as a constructive or other eviction of Tenant.
Further, in the event any governmental authority or public utility promulgates
or revises any law, ordinance, rule or regulation, or issues mandatory controls
or voluntary controls relating to the use or conservation of energy, water, gas,
light or electricity, the reduction of automobile or other emissions, or the
provision of any other utility or service, Landlord may take any reasonably
appropriate action to comply with such law, ordinance, rule, regulation,
mandatory control or voluntary guideline and Tenant's obligations hereunder
shall not be affected by any such action of Landlord. The parties acknowledge
that safety and security devices, services and programs provided by Landlord, if
any, while intended to deter crime and ensure safety, may not in given instances
prevent theft or other criminal acts, or ensure safety of persons or property.
The risk that any safety or security device, service or program may not be
effective, or may malfunction, or be circumvented by a criminal, is assumed by
Tenant with respect to Tenant's property and interests, and Tenant shall obtain
insurance coverage to the extent Tenant desires protection against such criminal
acts and other losses, as further described in this Lease. Tenant agrees to
cooperate in any reasonable safety or security program developed by Landlord or
required by Law.
Any amounts which Tenant is required to pay to Landlord pursuant to this
Article VII shall be payable upon demand by Landlord and shall constitute
additional rent or Rent under this Lease.
ARTICLE VIII - MAINTENANCE AND REPAIRS
8.01 LANDLORD'S OBLIGATIONS.
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(A) During the Lease Term, Landlord shall, at its expense,
maintain only the foundation and the structural soundness of the exterior
walls (excluding all windows, plate glass, doors and pest control and
extermination) of the portion of the Building containing the Premises in
good working order, repair and condition except for reasonable wear and
tear. Landlord also shall maintain, at its expense, subject to
reimbursement as part of Operating Expenses, the roof, downspouts and
fire safety sprinkler system of the Building. If Tenant determines that
any such repair or maintenance by Landlord is required, Tenant shall
promptly give written notice to Landlord of the need for such repair or
maintenance and unless Landlord in good faith disagrees with such
determination by Tenant, Landlord shall proceed with reasonable
promptness to perform such maintenance. Landlord shall not be liable to
Tenant, except as otherwise expressly provided in this Lease, for any
damage or inconvenience. Tenant shall not be entitled to any abatement or
reduction of Rent by reason of any repairs, alterations or additions made
by Landlord under this Lease.
(B) Tenant shall, at its sole cost, pay for any damage to the
foundation and/or external walls of the Building, or the Project, if
applicable, caused by any act, omission, negligence or fault of Tenant or
any employee, agent or contractor of Tenant.
8.02 TENANT'S OBLIGATIONS. During the Lease Term, Tenant shall, at its
risk and at its sole cost and expense, maintain all other parts of the Building
and other improvements in or on the Premises in good working order, repair and
condition (including all necessary replacements), including, but not limited to,
HVAC systems, all glass elements, doors (including dock doors), dock bumpers,
light bulbs, light fixtures, regular mowing of any grass, trimming, weed
removal, and regular removal of debris. However, in a multi-occupancy Building,
Landlord reserves the right to perform lawn and other common area maintenance
(including, without limitation, exterior painting and maintenance of any HVAC
system serving the common areas of the Building or serving the Premises as well
as other premises in the Building) and in such instance Tenant agrees to pay
Landlord for lawn and other common area maintenance (including, without
limitation, exterior painting and HVAC maintenance) based on Tenant's Percentage
Share with respect to Operating Expenses, as provided in Article IV hereof (or,
with respect to HVAC maintenance, based on the ratio of the Rentable Area of the
Premises to the rentable area of all premises served by said HVAC system).
Tenant shall take good care of all property and its fixtures, including all
landscaping, and suffer no waste. Tenant shall engage a certified pest control
firm to perform regular (not less frequent than monthly but more frequent if
Landlord determines the need therefor) extermination for pests including, but
not limited to, roaches, rodents and termites. Should Tenant neglect to keep and
maintain the Premises as required herein, the Landlord shall have the right, but
not the obligation, to have the work done and any reasonable costs plus a ten
percent (10%) overhead charge therefor shall be charged to Tenant as additional
rental and shall become payable by Tenant with the payment of the rental next
due under this Lease. In connection with Tenant's maintenance and repair of the
HVAC systems, Tenant shall provide Landlord during the Term of this Lease and
any renewal hereof with a duplicate original of a maintenance contract, in form
and substance acceptable to Landlord, with an HVAC maintenance firm acceptable
to Landlord. Further, Tenant shall be responsible for, and upon demand by
Landlord shall promptly reimburse Landlord for, any damage to any portion of the
Project, if applicable, the Building or the Premises caused by (a) Tenant's
activities in the Building or the Premises; (b) the performance or existence of
any alterations, additions or improvements made by Tenant in or to the Premises;
(c) the installation, use, operation or movement of Tenant's property in or
about the Building or the Premises; or (d) any act or omission by Tenant or its
officers, partners, employees, agents, contractors or invitees.
8.03 REPAIR DAMAGE. Tenant shall, at its own cost and expense, repair
or replace any damage or injury to all or any part of the Premises, the Building
and the Project, if applicable, caused by Tenant or Tenant's agents, employees,
invitees, licensees or visitors; provided, however, if Tenant fails to make such
repairs or replacements promptly, Landlord may, at its option, make such repairs
or replacements and Tenant shall reimburse the cost, plus a ten percent (10%)
overhead charge therefor, to Landlord on demand.
8.04 NO WASTE. Tenant shall not commit or allow any waste or damage to
be committed on any portion of the Premises.
8.05 LANDLORD'S RIGHTS. Landlord and its contractors shall have the
right, at all reasonable times and upon prior oral or telephonic notice to
Tenant at the Premises, other than in the case of any emergency in which case no
notice shall be required, to enter upon the Premises to make any repairs to the
Premises or the Building reasonably required or deemed reasonably necessary by
Landlord and to erect such equipment, including scaffolding, as is reasonably
necessary to effect such repairs. During the pendency of such repairs, Landlord
shall use reasonable efforts to minimize any material interruption of Tenant's
business; provided, that if such repairs by Landlord are
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required to remedy an emergency situation or to cure a breach or default by
Tenant under this Lease, Landlord shall not be obligated to minimize such
interference.
ARTICLE IX - ALTERATIONS, ADDITIONS AND IMPROVEMENTS
9.01 LANDLORD'S CONSENT; CONDITIONS. Tenant shall not make or permit to
be made any alterations, additions, or improvements in or to the Premises
("Alterations") without the prior written consent of Landlord, which consent,
with respect to non-structural alterations, shall not be unreasonably withheld.
Landlord may impose as a condition to making any Alterations such requirements
as Landlord in its sole discretion deems necessary or desirable including
without limitation: Tenant's submission to Landlord, for Landlord's prior
written approval, of all plans and specifications relating to the Alterations;
Landlord's prior written approval of the time or times when the Alterations are
to be performed; Landlord's prior written approval of the contractors and
subcontractors performing work in connection with the Alterations; employment of
union contractors and subcontractors who shall not cause labor disharmony;
Tenant's receipt of all necessary permits and approvals from all governmental
authorities having jurisdiction over the Premises prior to the construction of
the Alterations; Tenant's delivery to Landlord of such bonds and insurance as
Landlord shall reasonably require; and Tenant's payment to Landlord of all costs
and expenses incurred by Landlord because of Tenant's Alterations, including but
not limited to costs incurred in reviewing the plans and specifications for, and
the progress of, the Alterations. Tenant is required to provide Landlord written
notice of whether the Alterations include the Handling of any Hazardous
Materials and whether these materials are of a customary and typical nature for
industry practices. Upon completion of the Alterations, Tenant shall provide
Landlord with copies of as-built plans. Neither the approval by Landlord of
plans and specifications relating to any Alterations nor Landlord's supervision
or monitoring of any Alterations shall constitute any warranty by Landlord to
Tenant of the adequacy of the design for Tenant's intended use or the proper
performance of the Alterations.
9.02 PERFORMANCE OF ALTERATIONS WORK. All work relating to the
Alterations shall be performed in compliance with the plans and specifications
approved by Landlord, all applicable laws, ordinances, rules, regulations and
directives of all governmental authorities having jurisdiction and the
requirements of all carriers of insurance on the Premises and the Complex, the
Board of Underwriters, Fire Rating Bureau, or similar organization. All work
shall be performed in a diligent, first class manner and so as not to
unreasonably interfere with any other tenants or occupants of the Building or
the Complex. All costs incurred by Landlord relating to the Alterations shall be
payable to Landlord by Tenant as additional rent upon demand. No
asbestos-containing materials shall be used or incorporated in the Alterations.
No lead-containing surfacing material, solder, or other construction materials
or fixtures where the presence of lead might create a condition of exposure not
in compliance with Environmental Laws shall be incorporated in the Alterations.
9.03 LIENS. Tenant shall pay when due all costs for work performed and
materials supplied to the Premises. Tenant shall keep Landlord, the Premises and
the Complex free from all liens, stop notices and violation notices relating to
the Alterations or any other work performed for, materials furnished to or
obligations incurred by or for Tenant and Tenant shall protect, indemnify, hold
harmless and defend Landlord, the Premises and the Building of and from any and
all loss, cost, damage, liability and expense, including attorneys' fees,
arising out of or related to any such liens or notices. Further, Tenant shall
give Landlord not less then seven (7) business days prior written notice before
commencing any Alterations in or about the Premises to permit Landlord to post
appropriate notices of non-responsibility. Tenant shall also secure, prior to
commencing any Alterations, at Tenant's sole expense, a completion and lien
indemnity bond satisfactory to Landlord for such work. During the progress of
such work, Tenant shall, upon Landlord's request, furnish Landlord with sworn
contractor's statements and lien waivers covering all work theretofore
performed. Tenant shall satisfy or otherwise discharge all liens, stop notices
or other claims or encumbrances within ten (10) days after Landlord notifies
Tenant in writing that any such lien, stop notice, claim or encumbrance has been
filed. If Tenant fails to pay and remove such lien, claim or encumbrance within
such ten (10) days, Landlord, at its election, may pay and satisfy the same and
in such event the sums so paid by Landlord, with interest from the date of
payment at the rate set forth in Section 4.06 hereof for amounts owed Landlord
by Tenant shall be deemed to be additional rent due and payable by Tenant at
once without notice or demand.
9.04 REMOVAL OF ALTERATIONS. All Alterations shall become a part of the
Premises and shall become the property of Landlord upon the expiration or
earlier termination of this Lease, unless Landlord shall, by written
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notice given to Tenant, require Tenant to remove some or all of Tenant's
Alterations, (whether installed during the Term of this Lease or any previous
occupancy of the Premises by Tenant) in which event Tenant shall promptly remove
the designated Alterations and shall promptly repair any resulting damage, all
at Tenant's sole expense. All business and trade fixtures, machinery and
equipment, furniture, movable partitions and items of personal property owned by
Tenant or installed by Tenant at its expense in the Premises shall be and remain
the property of Tenant; upon the expiration or earlier termination of this
Lease, Tenant shall, at its sole expense, remove all such items and repair any
damage to the Premises or the Building caused by such removal. If Tenant fails
to remove any such items or repair such damage promptly after the expiration or
earlier termination of the Lease, Landlord may, but need not, do so with no
liability to Tenant, and Tenant shall pay Landlord the cost thereof upon demand.
Notwithstanding the foregoing to the contrary, in the event that Landlord gives
its consent, pursuant to the provisions of Section 9.01 of this Lease, to allow
Tenant to make an Alteration in the Premises, Landlord agrees, upon Tenant's
written request, to notify Tenant in writing at the time of the giving of such
consent whether Landlord will require Tenant, at Tenant's cost, to remove such
Alteration at the end of the Lease Term.
ARTICLE X - INDEMNIFICATION AND INSURANCE
10.01 INDEMNIFICATION.
(A) Tenant agrees to protect, indemnify, hold harmless and defend
Landlord and any Mortgagee, as defined herein, and each of their respective
partners, directors, officers, agents and employees, successors and assigns,
regardless of any negligence of, or imputed to Landlord as owner of the Complex,
Premises or underlying real property, from and against:
(i) any and all loss, cost, damage, liability or
expense as incurred (including but not limited to actual
attorneys' fees and legal costs) arising out of or related to any
claim, suit or judgment brought by or in favor of any person or
persons for damage, loss or expense due to, but not limited to,
bodily injury, including death, or property damage sustained by
such person or persons which arises out of, is occasioned by or is
in any way attributable to the use or occupancy of the Premises or
any portion of the Complex by Tenant or the acts or omission of
Tenant or its agents, employees, contractors, clients, invitees or
subtenants except that caused by the sole active negligence or
willful misconduct of Landlord or its agents or employees. Such
loss or damage shall include, but not be limited to, any injury or
damage to, or death of, Landlord's employees or agents or damage
to the Premises or any portion of the Complex.
(ii) any and all environmental damages which arise
from: (i) the Handling, presence or migration of any Tenant's
Hazardous Materials, as defined in Section 6.03 or (ii) the breach
of any of the provisions of this Lease. For the purpose of this
Lease, "environmental damages" shall mean (a) all claims,
judgments, damages, penalties, fines, costs, liabilities, and
losses (including without limitation, diminution in the value of
the Premises or any portion of the Complex, damages for the loss
of or restriction on use of rentable or usable space or of any
amenity of the Premises or any portion of the Complex and from any
adverse impact of Landlord's marketing of space); (b) all
reasonable sums paid for settlement of claims, attorneys' fees,
consultants' fees and experts' fees; and (c) all costs incurred by
Landlord in connection with investigation or remediation relating
to the Handling of Tenant's Hazardous Materials, whether or not
required by Environmental Laws, necessary for Landlord to make
full economic use of the Premises or any portion of the Complex,
or otherwise required under this Lease. To the extent that
Landlord is held strictly liable by a court or other governmental
agency of competent jurisdiction under any Environmental Laws,
Tenant's obligation to Landlord and the other indemnities under
the foregoing indemnification shall likewise be without regard to
fault on Tenant's part with respect to the violation of any
Environmental Law which results in liability to the indemnitee.
Tenant's obligations and liabilities pursuant to this Section
10.01 shall survive the expiration or earlier termination of this
Lease.
(iii) any and all testing or investigation as may be
requested by any governmental agency or lender for the purpose of
investigating the presence of Tenant's Hazardous Materials that
may not be in compliance with Environmental Laws.
(B) Notwithstanding anything to the contrary contained herein,
nothing shall be interpreted or used to in any way affect, limit, reduce or
abrogate any insurance coverage provided by any insurers to either Tenant or
Landlord.
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(C) Notwithstanding anything to the contrary contained in this
Lease, nothing herein shall be construed to infer or imply that Tenant is a
partner, joint venturer, agent, employee, or otherwise acting by or at the
direction of Landlord.
10.02 PROPERTY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure and
maintain, at its sole expense, "all-risk" property insurance, for damage or
other loss caused by fire or other casualty or cause including, but not limited
to, vandalism and malicious mischief, theft, water damage of any type, including
sprinkler leakage, bursting of pipes, explosion, in an amount not less than one
hundred percent (100%) of the replacement cost covering (a) all leasehold
improvements in and to the Premises and (b) Tenant's trade fixtures, equipment,
business records and other personal property from time to time situated in the
Premises, including, without limitation, all floor and wall coverings. The
proceeds of such insurance shall be used for the repair or replacement of the
property so insured, except that if not so applied or if this Lease is
terminated following a casualty, the proceeds applicable to the leasehold
improvements shall be paid to Landlord and the proceeds applicable to Tenant's
personal property shall be paid to Tenant.
(B) At all times during the Lease Term, Tenant shall procure and
maintain business interruption insurance in such amount as will reimburse Tenant
for direct or indirect loss of earnings attributable to all perils insured
against in Section 10.02(A).
(C) Landlord shall, at all times during the Lease Term, procure
and maintain "all-risk" property insurance in the amount not less than ninety
percent (90%) of the insurable replacement cost covering the Building in which
the Premises are located and such other insurance as may be required by a
Mortgagee or otherwise desired by Landlord.
10.03 LIABILITY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure and
maintain, at its sole expense, commercial general liability insurance applying
to the use and occupancy of the Premises and the business operated by Tenant.
Such insurance shall have a minimum combined single limit of liability of at
least Two Million Dollars ($1,000,000) per occurrence and a general aggregate
limit of at least Two Million Dollars ($2,000,000). All such policies shall be
written to apply to all bodily injury, property damage, personal injury losses
and shall be endorsed to include Landlord and its agents, beneficiaries,
partners, employees, and any deed of trust holder or mortgagee of Landlord or
any ground lessor as additional insureds. (A list of the current persons and
entities to be named as additional insureds is attached hereto as Exhibit E).
Such liability insurance shall be written as primary policies, not excess or
contributing with or secondary to any other insurance as may be available to the
Landlord or additional insureds.
(B) Prior to the sale, storage, use or giving away of alcoholic
beverages on or from the Premises by Tenant or another person, Tenant, at its
own expense, shall obtain a policy or policies of insurance issued by a
responsible insurance company and in a form acceptable to Landlord saving
harmless and protecting Landlord and the Premises against any and all damages,
claims, liens, judgments, expenses and costs, including actual attorneys' fees,
arising under any present or future law, statute, or ordinance of the State of
Virginia or other governmental authority having jurisdiction of the Premises, by
reason of any storage, sale, use or giving away of alcoholic beverages on or
from the Premises. Such policy or policies of insurance shall have a minimum
combined single limit of One Million ($1,000,000) per occurrence and shall apply
to bodily injury, fatal or nonfatal; injury to means of support; and injury to
property of any person. Such policy or policies of insurance shall name the
Landlord and its agents, beneficiaries, partners, employees and any mortgagee of
Landlord or any ground lessor of Landlord as additional insureds. (A list of the
current persons and entities to be named as additional insureds is attached
hereto as Exhibit E).
(C) Landlord shall, at all times during the Lease Term, procure
and maintain commercial general liability insurance for the Building and Common
Area in which the Premises are located. Such insurance shall have minimum
combined single limit of liability of at least Two Million Dollars ($2,000,000)
per occurrence, and a general aggregate limit of at least Two Million Dollars
($2,000,000).
10.04 WORKERS' COMPENSATION INSURANCE. At all times during the Lease
Term, Tenant shall procure and maintain Workers' Compensation Insurance in
accordance with the laws of the State of Virginia, and Employer's
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Liability insurance with a limit not less than One Million Dollars ($1,000,000)
Bodily Injury Each Accident; One Million Dollars ($1,000,000) Bodily Injury By
Disease - Each Person; and One Million Dollars ($1,000,000) Bodily Injury by
Disease - Policy Limit.
10.05 AUTOMOBILE LIABILITY INSURANCE. At all times during the Lease
Term, Tenant shall provide and maintain, at its sole expense, commercial
automobile liability insurance including owned, non-owned and hired vehicles,
applying to the use of any vehicles arising out of the operations of Tenant.
Such insurance shall apply to bodily injury and property damage in a combined
single limit of not less than One Million Dollars ($1,000,000) per accident.
10.06 PLATE GLASS INSURANCE. At any time during the Lease Term when
there is plate glass in or on the Premises, Tenant shall procure and maintain,
at its sole expense, plate glass insurance covering all the plate glass of the
Premises in amounts satisfactory to Landlord.
10.07 WAREHOUSEMAN'S INSURANCE. At any time during the Lease Term when
Tenant's use of the Premises includes or involves any activity as a bonded
agent, consignee or warehouseman, Tenant shall procure and maintain, at its sole
expense, insurance covering all goods and materials held at the Premises in such
capacity, providing protection against all damage, loss, theft, or other peril
which may occur in connection therewith in an amount not less than Five Million
Dollars ($5,000,000).
10.08 POLICY REQUIREMENTS. All insurance required to be maintained by
Tenant shall be issued by insurance companies authorized to do insurance
business in the State of Virginia and rated not less than A-VIII in Best's
Insurance Guide or a Standard and Poor's claims paying ability rating of not
less than AA. A certificate of insurance (or, at Landlord's option, copies of
the applicable policies) evidencing the insurance required under this Article X
shall be delivered to Landlord not less than thirty (30) days prior to the
Commencement Date. No such policy shall be subject to cancellation or
modification without thirty (30) days prior written notice to Landlord and to
any deed of trust holder, mortgagee or ground lessor designated by Landlord to
Tenant. Tenant shall furnish Landlord with a replacement certificate with
respect to any insurance not less than thirty (30) days prior to the expiration
of the current policy. Tenant shall have the right to provide the insurance
required by this Article X pursuant to blanket policies, but only if such
blanket policies expressly provide coverage to the Premises and the Landlord as
required by this Lease.
10.09 WAIVER OF CLAIMS. Except for claims arising from Landlord's
intentional or grossly negligent acts that are not covered by Tenant's insurance
hereunder, Tenant waives all claims against Landlord for injury or death to
persons, damage to property or to any other interest of Tenant sustained by
Tenant or any party claiming through Tenant resulting from: (i) any occurrence
in or upon the Premises, (ii) leaking of roofs, bursting, stoppage or leaking of
water, gas, sewer or steam pipes or equipment, including sprinklers, (iii) wind,
rain, snow, ice, flooding, freezing, fire, explosion, earthquake, excessive heat
or cold, fire or other casualty, (iv) the Building, Premises, systems or
equipment therefor being defective, out of repair, or failing, and (v)
vandalism, malicious mischief, theft or other acts or omissions of any other
parties including, without limitation, other tenants, contractors and invitees.
To the extent that Tenant is required to or does carry insurance hereunder,
Tenant agrees that Tenant's property loss risks shall be borne by such
insurance, and Tenant agrees to look solely to and seek recovery only from its
insurance carriers in the event of such losses; for purposes hereof, any
deductible amount shall be treated as though it were recoverable under such
policies.
10.10 WAIVER OF SUBROGATION. Each party hereby waives any right of
recovery against the other for injury or loss due to hazards covered by
insurance or required to be covered, to the extent of the injury or loss covered
thereby. Any policy of insurance to be provided by Tenant or Landlord pursuant
to this Article X shall contain a clause denying the applicable insurer any
right of subrogation against the Landlord.
10.11 FAILURE TO INSURE. If Tenant fails to maintain any insurance which
Tenant is required to maintain pursuant to this Article X, Tenant shall be
liable to Landlord for any loss or cost resulting from such failure to maintain.
Tenant may not self-insure against any risks required to be covered by insurance
without Landlord's prior written consent.
ARTICLE XI - DAMAGE OR DESTRUCTION
11.01 TOTAL DESTRUCTION. Except as provided in Section 11.03 below, this
Lease shall automatically terminate if the Building is totally destroyed.
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11.02 PARTIAL DESTRUCTION OF PREMISES. If the Premises are damaged by
any casualty and, in Landlord's opinion, the Premises (exclusive of any
Alterations made to the Premises by Tenant) can be restored to its pre-existing
condition within two hundred seventy (270) days after the date of the damage or
destruction using only the insurance proceeds made available to Landlord,
Landlord shall, upon written notice from Tenant to Landlord of such damage,
except as provided in Section 11.03, promptly and with due diligence use
available insurance proceeds to repair any damage to the Premises (exclusive of
any Alterations to the Premises made by Tenant, which shall be promptly repaired
by Tenant at its sole expense) and, until such repairs are completed, the Rent
shall be abated from the date of damage or destruction in the same proportion
that the rentable area of the portion of the Premises which is unusable by
Tenant in the conduct of its business bears to the total rentable area of the
Premises. If such repairs cannot, in Landlord's opinion, either (i) be made
within said two hundred seventy (270) day period, or (ii) be completed using
only the insurance proceeds made available to Landlord, then Landlord may, at
its option, exercisable by written notice given to Tenant within thirty (30)
days after the date of the damage or destruction, elect to make the repairs
within a reasonable time after the damage or destruction, in which event this
Lease shall remain in full force and effect but the Rent shall be abated as
provided in the preceding sentence; if Landlord does not so elect to make the
repairs, then either Landlord or Tenant shall have the right, by written notice
given to the other within sixty (60) days after the date of the damage or
destruction, to terminate this Lease as of the date of the damage or
destruction.
11.03 EXCEPTIONS TO LANDLORD'S OBLIGATIONS. Notwithstanding anything to
the contrary contained in this Article XI, Landlord shall have no obligation to
repair the Premises if either: (a) the Building in which the Premises are
located is so damaged as to require repairs to the Building exceeding twenty
percent (20%) of the full insurable value of the Building; or (b) Landlord
elects to demolish the Building in which the Premises are located; or (c) the
damage or destruction occurs less than two (2) years prior to the Expiration
Date, exclusive of option periods. In addition, Landlord's obligation to repair
as set forth in this Article XI shall be limited to the extent of insurance
proceeds made available to Landlord. Further, Tenant's Rent shall not be abated
if either (i) the damage or destruction is repaired within five (5) business
days after Landlord receives written notice from Tenant of the casualty, or (ii)
Tenant, or any officers, partners, employees, agents or invitees of Tenant, or
any assignee or subtenant of Tenant, is, in whole or in part, responsible for
the damage or destruction.
11.04 WAIVER. The provisions contained in this Lease shall supersede any
contrary laws (whether statutory, common law or otherwise) now or hereafter in
effect relating to damage, destruction, self-help or termination.
ARTICLE XII - CONDEMNATION
12.01 TAKING. If the entire Premises or so much of the Premises as to
render the balance unusable by Tenant shall be taken by condemnation, sale in
lieu of condemnation or in any other manner for any public or quasi-public
purpose (collectively "Condemnation"), and if Landlord, at its option, is unable
or unwilling to provide substitute premises containing at least as much rentable
area as described in Section 1.02 above, then this Lease shall terminate on the
date that title or possession to the Premises is taken by the condemning
authority, whichever is earlier.
12.02 AWARD. In the event of any Condemnation, the entire award for such
taking shall belong to Landlord. Tenant shall have no claim against Landlord or
the award for the value of any unexpired term of this Lease or otherwise. Tenant
shall be entitled to independently pursue a separate award in a separate
proceeding for Tenant's relocation costs directly associated with the taking,
provided such separate award does not diminish Landlord's award.
12.03 TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or entitle Tenant to any abatement of the Rent payable to
Landlord under this Lease; provided, further, that any award for such temporary
taking shall belong to Tenant to the extent that the award applies to any time
period during the Lease Term and to Landlord to the extent that the award
applies to any time period outside the Lease Term.
ARTICLE XIII - RELOCATION
13.01 RELOCATION. Landlord shall have the right, at its option upon not
less than thirty (30) days prior written notice to Tenant, to relocate Tenant
and to substitute for the Premises described above other space in the
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Complex, of approximately the same dimensions and size as the Premises described
in Section 1.02 above. If Tenant is already in occupancy of the Premises, then
Landlord shall approve in advance the relocation expenses for purposes of
reimbursement and, provided said expenses were approved in advance by Landlord,
shall reimburse Tenant for Tenant's reasonable moving and telephone relocation
expenses, for fees, if any, for the transferring of utility service, for
electrical wiring, if necessary for the relocation of Tenant's computer and
security systems and for lighting system upgrades consistent with those in the
Premises, and for reasonable quantities of new stationery upon submission to
Landlord of receipts for such expenditures incurred by Tenant.
ARTICLE XIV - ASSIGNMENT AND SUBLETTING
14.01 RESTRICTION. Without the prior written consent of Landlord, Tenant
shall not, either voluntarily or by operation of law, assign, encumber, or
otherwise transfer this Lease or any interest herein, or sublet the Premises or
any part thereof, or permit the Premises to be occupied by anyone other than
Tenant or Tenant's employees (any such assignment, encumbrance, subletting,
occupation or transfer is hereinafter referred to as a "Transfer"). For purposes
of this Lease, the term "Transfer" shall also include (a) if Tenant is a
partnership, the withdrawal or change, voluntary, involuntary or by operation of
law, of a majority of the partners, or a transfer of a majority of partnership
interests, within a twelve month period, or the dissolution of the partnership,
(b) if Tenant is a closely held corporation (i.e. whose stock is not publicly
held and not traded through an exchange or over the counter) or a limited
liability company, the dissolution, merger, consolidation, division, liquidation
or other reorganization of Tenant, or within a twelve month period: (i) the sale
or other transfer of more than an aggregate of 50% of the voting securities of
Tenant (other than to immediate family members by reason of gift or death) or
(ii) the sale, mortgage, hypothecation or pledge of more than an aggregate of
50% of Tenant's net assets and (c) any change by Tenant in the form of its legal
organization under applicable state law (such as, for example, a change from a
general partnership to a limited partnership or form a corporation to a limited
liability company. An assignment, subletting or other action in violation of the
foregoing shall be void and, at Landlord's option, shall constitute a material
breach of this Lease. Notwithstanding anything contained in this Article XIV to
the contrary, Tenant shall have the right to assign the Lease or sublease the
Premises, or any part thereof, to an "Affiliate" without the prior written
consent of Landlord, but upon at least twenty (20) days' prior written notice to
Landlord, provided that said Affiliate is identical to the use in Section 1.10
of the Lease, and provided further that said Affiliate is not in default under
any other lease for space in a property that is managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Properties Ltd. or any of its affiliates. For purposes of this provision, the
term "Affiliate" shall mean any corporation or other entity controlling,
controlled by, or under common control with (directly or indirectly) Tenant,
including, without limitation, any parent corporation controlling Tenant or any
subsidiary that Tenant controls. The term "control," as used herein, shall mean
the power to direct or cause the direction of the management and policies of the
controlled entity through the ownership of more than fifty percent (50%) of the
voting securities in such controlled entity. Notwithstanding anything contained
in this Article XIV to the contrary, Tenant expressly covenants and agrees not
to enter into any lease, sublease, license, concession or other agreement for
use, occupancy or utilization of the Premises which provides for rental or other
payment for such use, occupancy or utilization based in whole or in part on the
net income or profits derived by any person from the property leased, used,
occupied or utilized (other than an amount based on a fixed percentage or
percentages of receipts or sales), and that any such purported lease, sublease,
license, concession or other agreement shall be absolutely void and ineffective
as a conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the Premises.
14.02 NOTICE TO LANDLORD. If Tenant desires to assign this Lease or any
interest herein, or to sublet all or any part of the Premises, then at least
thirty (30) days but not more than one hundred eighty (180) days prior to the
effective date of the proposed assignment or subletting, Tenant shall submit to
Landlord in connection with Tenant's request for Landlord's consent:
(A) A statement containing (i) the name and address of the
proposed assignee or subtenant; (ii) such financial information with
respect to the proposed assignee or subtenant as Landlord shall
reasonably require; (iii) the type of use proposed for the Premises; and
(iv) all of the principal terms of the proposed assignment or subletting;
and
(B) Four (4) originals of the assignment or sublease on a form
approved by Landlord and four (4) originals of the Landlord's Consent to
Sublease or Assignment and Assumption of Lease and Consent.
14.03 LANDLORD'S RECAPTURE RIGHTS. At any time within twenty (20)
business days after Landlord's receipt of all (but not less than all) of the
information and documents described in Section 14.02 above, Landlord may, at its
option by written notice to Tenant, elect to: (a) sublease the Premises or the
portion thereof proposed to
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be sublet by Tenant upon the same terms as those offered to the proposed
subtenant; (b) take an assignment of the Lease upon the same terms as those
offered to the proposed assignee; or (c) terminate the Lease in its entirety or
as to the portion of the Premises proposed to be assigned or sublet, with a
proportionate adjustment in the Rent payable hereunder if the Lease is
terminated as to less than all of the Premises. If Landlord does not exercise
any of the options described in the preceding sentence, then, during the
above-described twenty (20) business day period, Landlord shall either consent
or deny its consent to the proposed assignment or subletting.
14.04 LANDLORD'S CONSENT; STANDARDS. Landlord's consent to a proposed
assignment or subletting shall not be unreasonably withheld; but, in addition to
any other grounds for denial, Landlord's consent shall be deemed reasonably
withheld if, in Landlord's good faith judgment: (i) the proposed assignee or
subtenant does not have the financial strength to perform its obligations under
this Lease or any proposed sublease; (ii) the business and operations of the
proposed assignee or subtenant are not of comparable quality to the business and
operations being conducted by other tenants in the Complex; (iii) the proposed
assignee or subtenant intends to use any part of the Premises for a purpose not
permitted under this Lease; (iv) either the proposed assignee or subtenant, or
any person which directly or indirectly controls, is controlled by, or is under
common control with the proposed assignee or subtenant occupies space in the
Complex, or is negotiating with Landlord to lease space in the Complex; (v) the
proposed assignee or subtenant is disreputable; or (vi) the use of the Premises
or the Complex by the proposed assignee or subtenant would, in Landlord's
reasonable judgment, impact the Complex in a negative manner including but not
limited to significantly increasing the pedestrian traffic, parking capacity and
requirements, and truck traffic in and out of the Complex or requiring any
alterations to the Complex to comply with applicable laws; (vii) the subject
space is not regular in shape with appropriate means of ingress and egress
suitable for normal renting purposes; (viii) the transferee is a government (or
agency or instrumentality thereof) or (ix) Tenant has failed to cure a default
at the time Tenant requests consent to the proposed Transfer.
14.05 ADDITIONAL RENT. If Landlord consents to any such assignment or
subletting, all sums or other economic consideration received by Tenant in
connection with such assignment or subletting, whether denominated as rental or
otherwise, exceeds, in the aggregate, the total sum which Tenant is obligated to
pay Landlord under this Lease (prorated to reflect obligations allocable to less
than all of the Premises under a sublease) shall be paid to Landlord promptly
after receipt as additional Rent under the Lease without affecting or reducing
any other obligation of Tenant hereunder.
14.06 LANDLORD'S COSTS. If Tenant shall Transfer this Lease or all or
any part of the Premises or shall request the consent of Landlord to any
Transfer, Tenant shall pay to Landlord as additional rent Landlord's costs
related thereto, including Landlord's reasonable attorneys' fees and a minimum
fee to Landlord of Five Hundred Dollars ($500.00).
14.07 CONTINUING LIABILITY OF TENANT. Notwithstanding any Transfer,
including an assignment or sublease to an affiliate, Tenant shall remain as
fully and primarily liable for the payment of Rent and for the performance of
all other obligations of Tenant contained in this Lease to the same extent as if
the Transfer had not occurred; provided, however, that any act or omission of
any transferee, other than Landlord, that violates the terms of this Lease shall
be deemed a violation of this Lease by Tenant.
14.08 NON-WAIVER. The consent by Landlord to any Transfer shall not
relieve Tenant, or any person claiming through or by Tenant, of the obligation
to obtain the consent of Landlord, pursuant to this Article XIV, to any further
Transfer. In the event of an assignment or subletting, Landlord may collect rent
from the assignee or the subtenant without waiving any rights hereunder and
collection of the rent from a person other than Tenant shall not be deemed a
waiver of any of Landlord's rights under this Article XIV, an acceptance of
assignee or subtenant as Tenant, or a release of Tenant from the performance of
Tenant's obligations under this Lease. If Tenant shall default under this Lease
and fail to cure within the time permitted, Landlord is irrevocably authorized,
as Tenant's agent and attorney-in-fact, to direct any transferee to make all
payments under or in connection with the Transfer directly to Landlord (which
Landlord shall apply towards Tenant's obligations under this Lease) until such
default is cured.
ARTICLE XV - DEFAULT AND REMEDIES
15.01 EVENTS OF DEFAULT BY TENANT. The occurrence of any of the
following shall constitute a material default and breach of this Lease by
Tenant:
(A) The failure by Tenant to pay Base Rent or make any other
payment required to be made by Tenant hereunder as and when due.
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(B) The abandonment of the Premises by Tenant or the vacation of
the Premises by Tenant for fourteen (14) consecutive days (with or
without the payment of Rent).
(C) The making by Tenant of any assignment of this Lease or any
sublease of all or part of the Premises, except as expressly permitted
under Article XIV of this Lease.
(D) The failure by Tenant to observe or perform any other
provision of this Lease to be observed or performed by Tenant, other than
those described in Sections 15.01(A), 15.01(B) or 15.01 (C) above, if
such failure continues for thirty (30) days after written notice thereof
by Landlord to Tenant; provided, however, that if the nature of the
default is such that it cannot be cured within the thirty (30) day
period, no default shall be deemed to exist if Tenant commences the
curing of the default promptly within such thirty (30) day period and
thereafter diligently prosecutes the same to completion and achieves the
same within sixty (60) days after the occurrence of such default. The
thirty (30) day notice described herein shall be in lieu of, and not in
addition to, any notice required under law now or hereafter in effect
requiring that notice of default be given prior to the commencement of an
unlawful detainer or other legal proceeding.
(E) The making by Tenant or its Guarantor of any general
assignment for the benefit of creditors, the filing by or against Tenant
or its Guarantor of a petition under any federal or state bankruptcy or
insolvency laws (unless, in the case of a petition filed against Tenant
or its Guarantor the same is dismissed within thirty (30) days after
filing); the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets at the Premises or Tenant's interest
in this Lease or the Premises, when possession is not restored to Tenant
within thirty (30) days; the attachment, execution or other seizure of
substantially all of Tenant's assets located at the Premises or Tenant's
interest in this Lease or the Premises, if such seizure is not discharged
within thirty (30) days; or the death or the dissolution of Tenant or any
one or more of the Guarantors, if any.
(F) Any material misrepresentation herein, or material
misrepresentation or omission in any financial statements or other
materials provided by Tenant or any Guarantor in connection with
negotiating or entering into this Lease or in connection with any
Transfer under Section 14.01.
15.02 LANDLORD'S RIGHT TO TERMINATE UPON TENANT DEFAULT. In the event of
any default by Tenant as provided in Section 15.01 above, Landlord shall have
the right to terminate this Lease and recover possession of the Premises by
giving written notice to Tenant of Landlord's election to terminate this Lease,
in which event Landlord shall be entitled to receive from Tenant:
(A) The amount of any unpaid Rent which had been earned at the
time of such termination; plus
(B) The amount Rent to be paid by Tenant under this Lease for the
balance of the original lease term, less the rental value of the Premises
for said period; plus
(C) Any other sum of money owed by Tenant to Landlord under the
terms of this Lease; plus
(D) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom; and
(E) At Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by
applicable law.
(F) Interest on the foregoing amounts from the time due to be paid
by Tenant (or, in the case of damages incurred by Landlord, from the time
incurred by Landlord) until the time actually paid to Landlord at the
lesser of the maximum rate permitted by law or twelve percent (12%) per
annum.
15.03 MITIGATION OF DAMAGES. If Landlord terminates this Lease, Landlord
shall have no obligation to mitigate Landlord's damages except to the extent
required by applicable law. If Landlord has not terminated this Lease, Landlord
shall have no obligation to mitigate under any circumstances and may permit the
Premises to remain vacant or abandoned. If Landlord is required to mitigate
damages as provided herein: (i) Landlord shall be required only to use
reasonable efforts to mitigate, which shall not exceed such efforts as Landlord
generally uses to lease other space in the Building, (ii) Landlord will not be
deemed to have failed to mitigate if Landlord or its affiliates
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lease any other portions of the Building, Complex or other projects owned by
Landlord or its affiliates in the same geographic area, before reletting all or
any portion of the Premises, and (iii) any failure to mitigate as described
herein with respect to any period of time shall only reduce the Rent and other
amounts to which Landlord is entitled hereunder by the reasonable rental value
of the Premises during such period. In recognition that the value of the
Building depends on the rental rates and terms of leases therein, Landlord's
rejection of a prospective replacement tenant based on an offer of rentals below
Landlord's published rates for new leases of comparable space at the Building at
the time in question, or at Landlord's option, below the rates provided in this
Lease, or containing terms less favorable than those contained herein, shall not
give rise to a claim by Tenant that Landlord failed to mitigate Landlord's
damages.
15.04 LANDLORD'S RIGHT TO CONTINUE LEASE UPON TENANT DEFAULT. In the
event of a default of this Lease and abandonment of the Premises by Tenant, if
Landlord does not elect to terminate this Lease as provided in Section 15.02
above, Landlord may from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease. Without limiting the foregoing,
Landlord may continue this Lease in effect after Tenant's default and
abandonment and recover Rent as it becomes due. In the event Landlord re-lets
the Premises, to the fullest extent permitted by law, the proceeds of any
reletting shall be applied first to pay to Landlord all costs and expenses of
such reletting (including without limitation, costs and expenses of retaking or
repossessing the Premises, removing persons and property therefrom, securing new
tenants, including expenses for redecoration, alterations and other costs in
connection with preparing the Premises for the new tenant, and if Landlord shall
maintain and operate the Premises, the costs thereof) and receivers' fees
incurred in connection with the appointment of and performance by a receiver to
protect the Premises and Landlord's interest under this Lease and any necessary
or reasonable alterations; second, to the payment of any indebtedness of Tenant
to Landlord other than Rent due and unpaid hereunder; third, to the payment of
Rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of other or future obligations of Tenant to
Landlord as the same may become due and payable, and Tenant shall not be
entitled to receive any portion of such revenue.
15.05 RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be
performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense. If Tenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder or shall fail to perform any other act
on its part to be performed hereunder, Landlord may, but shall not be obligated
to, make any payment or perform any such other act on Tenant's part to be made
or performed, without waiving or releasing Tenant of its obligations under this
Lease. Any sums so paid by Landlord and all necessary incidental costs, together
with interest thereon at the lesser of the maximum rate permitted by law if any
or twelve percent (12%) per annum from the date of such payment, shall be
payable to Landlord as additional rent on demand and Landlord shall have the
same rights and remedies in the event of nonpayment as in the case of default by
Tenant in the payment of Rent.
15.06 DEFAULT UNDER OTHER LEASES. If the term of any lease, other than
this Lease, heretofore or hereafter made by Tenant for any space in the Building
or the Project, if applicable, shall be terminated or terminable after the
making of this Lease because of any default by Tenant under such other lease,
such fact shall empower Landlord, at Landlord's sole option, to terminate this
Lease by notice to Tenant or to exercise any of the rights or remedies set forth
in Section 15.02.
15.07 NON-WAIVER. Nothing in this Article shall be deemed to affect
Landlord's rights to indemnification for liability or liabilities arising prior
to termination of this Lease or Tenant's right to possession of the Premises for
personal injury or property damages under the indemnification clause or clauses
contained in this Lease. No acceptance by Landlord of a lesser sum than the Rent
then due shall be deemed to be other than on account of the earliest installment
of such rent due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or pursue any other
remedy in the Lease provided. The delivery of keys to any employee of Landlord
or to Landlord's agent or any employee thereof shall not operate as a
termination of this Lease or a surrender of the Premises, unless Landlord in
writing both accepts such surrender and acknowledges such termination.
15.08 CUMULATIVE REMEDIES. The specific remedies to which Landlord may
resort under the terms of the Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by Tenant of any provisions
of the Lease. In addition to the other remedies provided in the Lease, including
the right to terminate this Lease or to terminate Tenant's right of possession
of the Premises and reenter and repossess the Premises and remove all persons
and property from the Premises without terminating this Lease as provided in
Section 15.02, Landlord shall be entitled to a restraint by injunction of the
violation or attempted or threatened violation of any of the covenants,
conditions or
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provisions of the Lease or to a decree compelling specific performance of any
such covenants, conditions or provisions.
15.09 DEFAULT BY LANDLORD. Landlord's failure to perform or observe any
of its obligations under this Lease shall constitute a default by Landlord under
this Lease only if such failure shall continue for a period of thirty (30) days
(or the additional time, if any, that is reasonably necessary to promptly and
diligently cure the failure) after Landlord receives written notice from Tenant
specifying the default. The notice shall give in reasonable detail the nature
and extent of the failure and shall identify the Lease provision(s) containing
the obligation(s). If Landlord shall default in the performance of any of its
obligations under this Lease (after notice and opportunity to cure as provided
herein), Tenant may pursue any remedies available to it under the law and this
Lease, except that, in no event, shall Landlord be liable for punitive damages,
lost profits, business interruption, speculative, consequential or other such
damages. In recognition that Landlord must receive timely payments of Rent and
operate the Building, Tenant shall have no right of self-help to perform repairs
or any other obligation of Landlord, and shall have no right to withhold,
set-off, or ▇▇▇▇▇ Rent.
ARTICLE XVI - ATTORNEYS' FEES: COSTS OF SUIT
16.01 ATTORNEYS FEES. If either Landlord or Tenant shall commence any
action or other proceeding against the other arising out of, or relating to,
this Lease or the Premises, the prevailing party shall be entitled to recover
from the losing party, in addition to any other relief, its actual attorneys'
fees irrespective of whether or not the action or other proceeding is prosecuted
to judgment and irrespective of any court schedule of reasonable attorneys'
fees. In addition, Tenant shall reimburse Landlord, upon demand, for all
reasonable attorneys' fees incurred in collecting Rent, resolving any actual
default by Tenant, securing indemnification as provided in Article X and
paragraphs, 16.02, 24.01 and 26.01 herein or otherwise seeking enforcement
against Tenant, its sublessees and assigns, of Tenant's obligations under this
Lease.
16.02 INDEMNIFICATION. Should Landlord be made a party to any litigation
instituted by Tenant against a party other than Landlord, or by a third party
against Tenant, Tenant shall indemnify, hold harmless and defend Landlord from
any and all loss, cost, liability, damage or expense incurred by Landlord,
including attorneys' fees, in connection with the litigation, unless a final
non-appealable judgment is rendered against Landlord in such litigation.
ARTICLE XVII - SUBORDINATION AND ATTORNMENT
17.01 SUBORDINATION. This Lease, and the rights of Tenant hereunder, are
and shall be subject and subordinate to the interest of (i) all present and
future ground leases and master leases of all or any part of the Building; (ii)
present and future mortgages and deeds of trust encumbering all or any part of
the Building or the underlying real estate; (iii) all past and future advances
made under any such mortgages or deeds of trust; and (iv) all renewals,
modifications, replacements and extensions of any such ground leases, master
leases, mortgages and deeds of trust; provided, however, that any lessor under
any such ground lease or master lease or any mortgagee or beneficiary under any
such mortgage or deed of trust ( any such lessor, mortgagee or beneficiary is
hereinafter referred to as a "Mortgagee") shall have the right to elect, by
written notice given to Tenant, to have this Lease made superior in whole or in
part to any such ground lease, master lease, mortgage or deed of trust (or
subject and subordinate to such ground lease, master lease, mortgage or deed of
trust but superior to any junior mortgage or junior deed of trust). Upon demand,
Tenant shall execute, acknowledge and deliver any instruments reasonably
requested by Landlord or any such Mortgagee to effect the purposes of this
Section 17.01. Such instruments may contain, among other things, provisions to
the effect that such Mortgagee (hereafter, for the purposes of this Section
17.01, a "Successor Landlord") shall (i) not be liable for any act or omission
of Landlord or its predecessors, if any, prior to the date of such Successor
Landlord's succession to Landlord's interest under this Lease; (ii) not be
subject to any offsets or defenses which Tenant might have been able to assert
against Landlord or its predecessors, if any, prior to the date of such
Successor Landlord's succession to Landlord's interest under this Lease; (iii)
not be liable for the return of any security deposit under the Lease unless the
same shall have actually been deposited with such Successor Landlord; (iv) be
entitled to receive notice of any Landlord default under this Lease plus a
reasonable opportunity to cure such default prior to Tenant having any right or
ability to terminate this Lease as a result of such Landlord default; (v) not be
bound by any rent or additional rent which Tenant might have paid for more than
the current month to Landlord; (vi) not be bound by any amendment or
modification of the Lease or any cancellation or surrender of the same made
without Successor Landlord's prior written consent; (vii) not be bound by any
obligation to make any payment to Tenant which was required to be made prior to
the time such Successor Landlord succeeded to Landlord's interest and (viii) not
be bound by any obligation under the Lease to perform any work or to make any
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improvements to the demised Premises. Any obligations of any Successor Landlord
under its respective lease shall be non-recourse as to any assets of such
Successor Landlord other than its interest in the Premises and improvements.
17.02 ATTORNMENT. If requested to do so, Tenant shall attorn to and
recognize as Tenant's landlord under this Lease any superior Mortgagee or other
purchaser or person taking title to the Building by reason of the termination of
any superior lease or the foreclosure of any superior mortgage or deed of trust,
and Tenant shall, upon demand, execute any documents reasonably requested by any
such person to evidence the attornment described in this Section 17.02.
17.03 MORTGAGEE AND GROUND LESSOR PROTECTION. Tenant agrees to give any
Mortgagee, by registered or certified mail, a copy of any notice of default
served upon Landlord by Tenant, provided that prior to such notice Tenant has
been notified in writing (by way of service on Tenant of a copy of Assignment of
Rents and Leases, or otherwise) of the address of such Mortgagee (hereafter the
"Notified Party"). Tenant further agrees that if Landlord shall have failed to
cure such default within twenty (20) days after such notice to Landlord (or if
such default cannot be cured or corrected within that time, then such additional
time as may be necessary if Landlord has commenced within such twenty (20) days
and is diligently pursuing the remedies or steps necessary to cure or correct
such default), then the Notified Party shall have an additional thirty (30) days
within which to cure or correct such default (or if such default cannot be cured
or corrected within that time, then such additional time as may be necessary if
the Notified Party has commenced within such thirty (30) days and is diligently
pursuing the remedies or steps necessary to cure or correct such default). Until
the time allowed, as aforesaid, for the Notified Party to cure such default has
expired without cure, Tenant shall have no right to, and shall not, terminate
this Lease on account of Landlord's default.
ARTICLE XVIII - QUIET ENJOYMENT
18.01 Provided that Tenant performs all of its obligations hereunder,
Tenant shall have and peaceably enjoy the Premises during the Lease Term free of
claims by or through Landlord, subject to all of the terms and conditions
contained in this Lease.
ARTICLE XIX - PARKING
19.01 Tenant, its employees and invitees, are hereby granted the
non-exclusive privilege to use parking spaces in Gateway 95 Business Park.
Tenant shall abide by all rules and regulations regarding the use of the parking
area as may now exist or as may hereinafter be promulgated by Landlord. Landlord
reserves the right to modify, restripe and otherwise change the location of
drives, parking spaces and parking area in Gateway 95 Business Park. Landlord
may, but shall have no obligation to, designate certain parking spaces for
trucks, handicapped persons or designated tenants as Landlord, in its sole
discretion, may deem necessary for the professional and efficient operation of
the parking area and the Complex. Landlord shall have the right to reasonably
restrict the number and location of truck/tractor trailers for the overall
benefit of all tenants, it being agreed by Tenant that it is not the intent of
this Lease to provide unrestricted parking for truck/tractor trailers. Tenant
agrees not to overburden the parking facilities and agrees to cooperate with
Landlord and other tenants in the use of the parking facilities. Tenant will
reimburse Landlord upon demand for any damage caused to the parking surfaces or
facilities caused by Tenant's or any of its employees', agents' or invitees'
trucks/tractor trailers or any other vehicles. Landlord reserves the right in
its absolute discretion to determine whether parking facilities are becoming
crowded and, in such event, to allocate parking spaces among Tenant and other
tenants. At no time shall the parking of any vehicle be permitted in the fire
lanes or handicapped parking areas servicing the Complex.
ARTICLE XX - RULES AND REGULATIONS
20.01 The Rules and Regulations attached hereto as Exhibit F are hereby
incorporated by reference herein and made a part hereof. Tenant shall abide by,
and faithfully observe and comply with the Rules and Regulations and any
reasonable and non-discriminatory amendments, modifications and/or additions
thereto as may hereafter be adopted and published by written notice to tenants
by Landlord for the safety, care, security, good order and/or cleanliness of the
Premises and/or the Complex. Landlord shall not be liable to Tenant for any
violation of such rules and regulations by any other tenant or occupant of the
Complex.
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ARTICLE XXI - ESTOPPEL CERTIFICATES
21.01 Tenant agrees at any time and from time to time upon not less than
ten (10) days' prior written notice from Landlord to execute, acknowledge and
deliver to Landlord a statement in writing addressed and certifying to Landlord,
to any current or prospective Mortgagee or any assignee thereof, to any
prospective purchaser of the land, improvements or both comprising the Building,
and to any other party designated by Landlord, that this Lease is unmodified and
in full force and effect (of if there have been modifications, that the same is
in full force and effect as modified and stating the modifications); that Tenant
has accepted possession of the Premises, which are acceptable in all respects,
and that any improvements required by the terms of this Lease to be made by
Landlord have been completed to the satisfaction of Tenant; that Tenant is in
full occupancy of the Premises; that no rent has been paid more than thirty (30)
days in advance; that the first month's Base Rent has been paid; that Tenant is
entitled to no free rent or other concessions except as stated in this Lease;
that Tenant has not been notified of any previous assignment of Landlord's or
any predecessor landlord's interest under this Lease; the dates to which Base
Rent, additional rental and other charges have been paid; that Tenant, as of the
date of such certificate, has no charge, lien or claim of setoff under this
Lease or otherwise against Base Rent, additional rental or other charges due or
to become due under this Lease; that Landlord is not in default in performance
of any covenant, agreement or condition contained in this Lease; or any other
matter relating to this Lease or the Premises or, if so, specifying each such
default. If there is a Guaranty under this Lease, said Guarantor shall confirm
the validity of the Guaranty by joining in the execution of the Estoppel
Certificate or other documents so requested by Landlord or Mortgagee. In
addition, in the event that such certificate is being given to any Mortgagee,
such statement may contain any other provisions customarily required by such
Mortgagee including, without limitation, an agreement on the part of Tenant to
furnish to such Mortgagee, written notice of any Landlord default and a
reasonable opportunity for such Mortgagee to cure such default prior to Tenant
being able to terminate this Lease. Any such statement delivered pursuant to
this Section may be relied upon by Landlord or any Mortgagee, or prospective
purchaser to whom it is addressed and such statement, if required by its
addressee, may so specifically state. If Tenant does not execute, acknowledge
and deliver to Landlord the statement as and when required herein, Landlord is
hereby granted an irrevocable power-of-attorney, coupled with an interest, to
execute such statement on Tenant's behalf, which statement shall be binding on
Tenant to the same extent as if executed by Tenant (and such grant shall not be
in limitation of Landlord's other remedies for such failure by Tenant).
ARTICLE XXII - ENTRY BY LANDLORD
22.01 Landlord may enter the Premises at all reasonable times to:
inspect the same; exhibit the same to prospective purchasers, Mortgagees or
tenants; determine whether Tenant is complying with all of its obligations under
this Lease; supply janitorial and other services to be provided by Landlord to
Tenant under this Lease; post notices of non-responsibility; and make repairs or
improvements in or to the Building or the Premises; provided, however, that all
such work shall be done as promptly as reasonably possible and so as to cause as
little interference to Tenant as reasonably possible. Tenant hereby waives any
claim for damages for any injury or inconvenience to, or interference with,
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss occasioned by such entry. As provided for in clause (xii) of
Section 28.19 of this Lease, Landlord shall at all times have the right, but not
the obligation, to obtain from Tenant and retain a key with which to unlock all
of the doors in, on or about the Premises (excluding Tenant's vaults, safes and
similar areas designated by Tenant in writing in advance), and Landlord shall
have the right to use any and all means by which Landlord may deem proper to
open such doors to obtain entry to the Premises, and any entry to the Premises
obtained by Landlord by any such means, or otherwise, shall not under any
circumstances be deemed or construed to be a forcible or unlawful entry into or
a detainer of the Premises or an eviction, actual or constructive, of Tenant
from any part of the Premises. Such entry by Landlord shall not act as a
termination of Tenant's duties under this Lease. If Landlord shall be required
to obtain entry by means other than a key provided by Tenant, the cost of such
entry shall by payable by Tenant to Landlord as additional rent.
ARTICLE XXIII
LANDLORD'S LEASE UNDERTAKINGS-EXCULPATION FROM PERSONAL LIABILITY;
TRANSFER OF LANDLORD'S INTEREST
23.01 LANDLORD'S LEASE UNDERTAKINGS. Notwithstanding anything to the
contrary contained in this Lease or in any exhibits, Riders or addenda hereto
attached (collectively the "Lease Documents"), it is expressly
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understood and agreed by and between the parties hereto that: (a) the recourse
of Tenant or its successors or assigns against Landlord with respect to the
alleged breach by or on the part of Landlord of any representation, warranty,
covenant, undertaking or agreement contained in any of the Lease Documents or
otherwise arising out of Tenant's use of the Premises or the Complex
(collectively, "Landlord's Lease Undertakings") shall extend only to Landlord's
interest in the real estate of which the Premises demised under the Lease
Documents are a part ("Landlord's Real Estate") and not to any other assets of
Landlord or its constituent partners; and (b) except to the extent of Landlord's
interest in Landlord's Real Estate, no personal liability or personal
responsibility of any sort with respect to any of Landlord's Lease Undertakings
or any alleged breach thereof is assumed by, or shall at any time be asserted or
enforceable against, Landlord, ▇▇▇▇▇▇▇ Capital Management Corporation, ▇▇▇▇▇▇▇
Properties Ltd. or ▇▇▇▇▇▇▇ Virginia Management Inc., or against any of their
respective directors, officers, employees, agents, constituent partners,
beneficiaries, trustees or representatives.
23.02 TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer of
Landlord's interest in the Building, Landlord shall be automatically freed and
relieved from all applicable liability with respect to performance of any
covenant or obligation on the part of Landlord, provided any deposits or advance
rents held by Landlord are turned over to the grantee and said grantee expressly
assumes, subject to the limitations of this Section 23, all the terms, covenants
and conditions of this Lease to be performed on the part of Landlord, it being
intended hereby that the covenants and obligations contained in this Lease on
the part of Landlord shall, subject to all the provisions of this Section 23, be
binding on Landlord, its successors and assigns, only during their respective
periods of ownership.
ARTICLE XXIV - SURRENDER; HOLDOVER TENANCY
24.01 CONDITION OF PREMISES AND REMOVAL OF PROPERTY. At the expiration
or earlier termination of this Lease or Tenant's right to possession of the
Premises, Tenant shall: (a) surrender possession of the Premises in broom-clean
condition and good repair, free of debris, and otherwise in the condition
required under Section 8.02, ordinary wear and tear excepted, (b) ensure that
all signs, movable trade fixtures and personal property (except items originally
provided by Landlord) have been removed from the Premises as required under
Section 9.04 hereof (subject to Article XXIX hereof), (c) ensure that all
Alterations required to be removed from the Premises pursuant to Section 9.04
have been removed from the Premises, (d) ensure that any damage caused by such
removal has been repaired in a good and workmanlike manner as required under
Section 9.04 hereof (and Landlord may deny permission to remove items where such
removal may damage the structural integrity of the Building), and (e) ensure
that all actions required under the Rules and Regulations set forth in Exhibit F
to this Lease have been taken. Tenant understands that "ordinary wear and tear"
does not mean Tenant shall be relieved of performing its obligations under this
Lease relating to maintenance, repairs and replacements as provided for in the
Lease. The cost and expense of any repairs necessary to restore the condition of
the Premises shall be borne by Tenant, and if Landlord undertakes to restore the
Premises, it shall have a right of reimbursement against Tenant.
24.02 ABANDONED PROPERTY. If Tenant shall fail to perform any repairs or
restoration, or fail to remove any items from the Premises as required
hereunder, Landlord may do so at Tenant's expense as provided in Sections 9.04
and 15.04 hereof and Tenant shall pay Landlord's charges therefor upon demand.
All property removed from the Premises by Landlord hereunder may be handled,
discarded or stored by Landlord at Tenant's expense, and Landlord shall in no
event be responsible for the value, preservation or safekeeping thereof. All
such property shall at Landlord's option be conclusively deemed to have been
conveyed by Tenant to Landlord as if by ▇▇▇▇ of sale without payment by
Landlord. If Landlord arranges for storage of any such property, Landlord shall
have a lien against such property for costs incurred in removing and storing the
same.
24.03 HOLDOVER TENANCY. If Tenant holds possession of the Premises after
the expiration or termination of the Lease Term, by lapse of time or otherwise,
Tenant shall become a tenant at sufferance upon all of the terms contained
herein, except as to Lease Term and Rent. During such holdover period, Tenant
shall pay to Landlord a monthly rental equivalent to one hundred and fifty
percent (150%) of the Rent Payable by Tenant to Landlord with respect to the
last month of the Lease Term. The monthly rent payable for such holdover period
shall in no event be construed as a penalty or as liquidated damages for such
retention of possession. Without limiting the foregoing, Tenant hereby agrees to
indemnify, defend and hold harmless Landlord, its beneficiary, and their
respective agents, contractors and employees, from and against any and all
claims, liabilities, actions, losses, damages (including without limitation,
direct, indirect, incidental and consequential) and expenses (including, without
limitation, court costs and reasonable attorneys' fees) asserted against or
sustained by any such party and arising from or by reason of such retention of
possession, which obligations shall survive the expiration or termination of the
Lease Term.
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ARTICLE XXV - NOTICES
25.01 All notices which Landlord or Tenant may be required, or may
desire, to serve on the other may be served, as an alternative to personal
service, by mailing the same by registered or certified mail, postage prepaid,
or may be sent by overnight courier, addressed to Landlord at the address for
Landlord set forth in Section 1.11 above and to Tenant at the address for Tenant
set forth in Section 1.12 above, or, from and after the Commencement Date, to
Tenant at the Premises whether or not Tenant has departed from, abandoned or
vacated the Premises, or addressed to such other address or addresses as either
Landlord or Tenant may from time to time designate to the other in writing. Any
notice shall be deemed to have been given and served when delivered personally
or otherwise at the time the same was posted, except that any notice given by
overnight courier shall be deemed given on the first business day following the
date such notice is delivered by such courier provided such courier verifies
delivery proof.
ARTICLE XXVI - BROKERS
26.01 The parties recognize as the broker(s) who procured this Lease the
firm(s) specified in Section 1.13 and agree that Landlord shall be solely
responsible for the payment of any brokerage commissions to said Broker(s), and
that Tenant shall have no responsibility therefor unless written provision to
the contrary has been made a part of this Lease. If Tenant has dealt with any
other person or real estate broker in respect to leasing, subleasing or renting
space in the Building or the Project, if applicable, Tenant shall be solely
responsible for the payment of any fee due said person or firm and Tenant shall
protect, indemnify, hold harmless and defend Landlord from any liability in
respect thereto.
ARTICLE XXVII - ELECTRONIC SERVICES
27.01 TENANT'S LINES. Tenant may, in a manner consistent with the
provisions and requirements of this Lease, install, maintain, replace, remove or
use any communications or computer or other electronic service wires, cables and
related devices (collectively the "Lines") at the Building in or serving the
Premises, provided: (a) Tenant shall obtain Landlord's prior written consent,
which consent may be conditioned as required by Landlord, (b) if Tenant at any
time uses any equipment that may create an electromagnetic field exceeding the
normal insulation ratings of ordinary twisted pair riser cable or cause
radiation higher than normal background radiation, the Lines therefor (including
riser cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, and (c) Tenant shall pay all costs in
connection therewith. Landlord reserves the right to require that Tenant remove
any Lines which are installed in violation of these provisions. Tenant shall
not, without the prior written consent of Landlord in each instance, grant to
any third party a security interest or lien in or on the Lines, and any such
security interest or lien granted without Landlord's written consent shall be
null and void.
27.02 DEFINITION OF ELECTRONIC SERVICES. As used herein "Electronic
Services Provider" means a business which provides telephone, telegraph, telex,
video, other telecommunications or other services which permit Tenant to receive
or transmit information by the use of electronics and which require the use of
wires, cables, antennas or similar devices in or on the Building. The services
of Electronic Services Providers are sometime referred to herein as "Electronic
Services."
27.03 NO RIGHT TO SPECIFIC SERVICES. Landlord shall have no obligation
(i) to install any Electronic Services equipment or facilities, (ii) to make
available to Tenant the services of any particular Electronic Services Provider,
(iii) to allow any particular Electronic Services Provider access to the
Building, (iv) to continue to grant access to an Electronic Services Provider
once such provider has been given access to the Building. Landlord may (but
shall not have the obligation to): (x) install new Lines at the property, (y)
create additional space for Lines at the property, and (z) adopt reasonable and
uniform rules and regulations with respect to Lines.
27.04 LIMITATION OF LANDLORD'S RESPONSIBILITY. Tenant acknowledges and
agrees that all Electronic Services desired by Tenant shall be ordered and
utilized at the sole expense of Tenant. Unless Landlord otherwise requests or
consents in writing, all of Tenant's Electronic Services equipment shall be and
remain solely in the Tenant's premises and the telephone closet(s) on the
floor(s) on which the Tenant's premises is located, in accordance with rules and
regulations adopted by Landlord from time to time. Unless otherwise specifically
agreed to in writing, Landlord shall have no responsibility for the maintenance
of Tenant's Electronic Services equipment, including
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Lines; nor for any Lines or other infrastructure to which Tenant's Electronic
Services equipment may be connected. Tenant agrees that, to the extent any
Electronic Services are interrupted, curtailed or discontinued, Landlord shall
have no obligation or liability with respect thereto and it shall be the sole
obligation of Tenant at its own expense to obtain substitute service. Except to
the extent arising from the intentional or grossly negligent acts of Landlord or
Landlord's agents or employees, Landlord shall have no liability for damages
arising from, and Landlord does not warrant that Tenant's use of any Lines will
be free from the following (collectively called "Line Problems"): (x) any
eavesdropping or wire-tapping by unauthorized parties, (y) any failure of any
Lines to satisfy Tenant's requirements, or (z) any shortages, failures,
variations, interruptions, disconnections, loss or damage caused by the
installation, maintenance, replacement, use or removal of Lines by or for other
tenants or occupants at the property. Under no circumstances shall any Line
Problems be deemed an actual or constructive eviction of Tenant, render Landlord
liable to Tenant for abatement of Rent, or relieve Tenant from performance of
Tenant's obligations under this Lease. Landlord in no event shall be liable for
damages by reason of loss of profits, business interruption or other
consequential damage arising from any Line Problems.
27.05 NECESSARY SERVICE INTERRUPTIONS. Landlord shall have the right,
upon reasonable prior notice to Tenant, to interrupt or turn off Electronic
Services facilities in the event of emergency or as necessary in connection with
maintenance, repairs or construction at the Building or installation of
Electronic Services equipment for other Tenants of the Building or on account of
violation by the Electronic Services Provider or owner of the Electronic
Services equipment of any obligation to Landlord or in the event that Tenant's
use of the Electronic Services infrastructure of the Building materially
interferes with the Electronic Services of other tenants of the Building.
27.06 REMOVAL OF EQUIPMENT, WIRING AND OTHER FACILITIES. Any and all
Electronic Services equipment installed in the Tenant's Premises or elsewhere in
the Building by or on behalf of Tenant, including Lines, or other facilities for
Electronic Services reception or transmittal, shall be removed prior to the
expiration or earlier termination of the Lease term, by Tenant at its sole cost
or, at Landlord's election, by Landlord at Tenant's sole cost, with the cost
thereof to be paid as additional rent. Landlord shall have the right, however,
upon written notice to Tenant given no later than thirty (30) days prior to the
expiration or earlier termination of the Lease term (except that the notice
period shall extend to thirty (30) days beyond the date of termination of the
Lease if it is terminated by either party due to a default by the other), to
require Tenant to abandon and leave in place, without additional payment to
Tenant or credit against rent, any and all Electronic Services Lines and related
infrastructure, or selected components thereof, whether located in the Tenant's
premises or elsewhere in the Building.
27.07 NEW PROVIDER INSTALLATIONS. In the event that Tenant wishes at any
time to utilize the services of an Electronic Services Provider whose equipment
is not then servicing the Building, no such Electronic Services Provider shall
be permitted to install its Lines or other equipment within the Building without
first securing the prior written approval of the Landlord. Landlord's approval
shall not be deemed any kind of warranty or representation by Landlord,
including, without limitation, any warranty or representation as to the
suitability, competence, or financial strength of the Electronic Services
Provider. Without limitation of the foregoing standard, unless all of the
following conditions are satisfied to Landlord's satisfaction, it shall be
reasonable for Landlord to refuse to give its approval: (i) Landlord shall incur
no current expense or risk or future expense whatsoever with respect to any
aspect of the Electronic Services Provider's provision of its Electronic
Services, including without limitation, the costs of installation, materials and
services; (ii) prior to commencement of any work in or about the Building by the
Electronic Services Provider, the Electronic Services Provider shall supply
Landlord with such written indemnities, insurance, financial statements, and
such other items as Landlord reasonably determines to be necessary to protect
its financial interests and the interests of the Building relating to the
proposed activities of the Electronic Services Provider; (iii) the Electronic
Services Provider agrees to abide by such rules and regulations, Building and
other codes, job site rules and such other requirements as are reasonably
determined by Landlord to be necessary to protect the interests of the Building,
the Tenants in the Building and Landlord, in the same or similar manner as
Landlord has the right to protect itself and the Building with respect to
proposed alterations as described in Article IX of this Lease; (iv) Landlord
reasonably determines that, considering other potential uses for space in the
Building, there is sufficient space in the Building for the placement of all of
the provider's equipment, conduit, Lines and other materials; (v) the Electronic
Services Provider agrees to abide by Landlord's requirements, if any, that
provider use existing Building conduits and pipes or use Building contractors
(or other contractors approved by Landlord); (vi) Landlord receives from the
Electronic Services Provider such compensation as is reasonably determined by
Landlord to compensate it for space used in the Building for the storage and
maintenance of the Electronic Services Provider's equipment, for the fair market
value of a Electronic Services Provider's access to the Building, for the use of
common or core space within the Building and the costs which may reasonably be
expected to be incurred by Landlord; (vii) the provider agrees to deliver to
Landlord detailed "as built" plans immediately after the installation of the
provider's equipment is complete; and (viii) all of the foregoing matters are
documented in a written license agreement between Landlord and the provider, the
form and content of which is reasonably satisfactory to Landlord."
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27.08 LIMIT OF DEFAULT OR BREACH. Notwithstanding any provision of the
proceeding paragraphs to the contrary, the refusal of Landlord to grant its
approval to any prospective Electronic Services Provider shall not be deemed a
default or breach by Landlord of its obligation under this Lease unless and
until Landlord is adjudicated to have acted recklessly or maliciously with
respect to Tenant's request for approval, and in that event, Tenant shall still
have no right to terminate the Lease or claim an entitlement to rent abatement,
but may as Tenant's sole and exclusive recourse seek a judicial order of
specific performance compelling Landlord to grant its approval as to the
prospective provider in question. The provisions of this paragraph may be
enforced solely by Tenant and Landlord, are not for the benefit of any other
party, and specifically but without limitation, no telephone or other Electronic
Services Provider shall be deemed a third party beneficiary of this Lease.
27.09 INSTALLATION AND USE OF WIRELESS TECHNOLOGIES. Tenant shall not
utilize any wireless Electronic Services equipment (other than usual and
customary cellular telephones), including antennae and satellite receiver
dishes, within the Tenant's premises, within the Building or attached to the
outside walls or roof of the Building, without Landlord's prior written consent.
Such consent may be conditioned in such a manner so as to protect Landlord's
financial interests and the interests of the Building, and the other tenants
therein, in a manner similar to the arrangements described in the immediately
preceding paragraphs.
27.10 LIMITATION OF LIABILITY FOR EQUIPMENT INTERFERENCE. In the event
that Electronic Services equipment, Lines and facilities or satellite and
antennae equipment of any type installed by or at the request of Tenant within
the Tenant's premises, on the roof, or elsewhere within or on the Building
causes interference to equipment used by another party, Tenant shall cease using
such equipment, Lines and facilities or satellite and antennae equipment until
the source of the interference is identified and eliminated and Tenant shall
assume all liability related to such interference. Tenant shall cooperate with
Landlord and other parties, to eliminate such interference promptly. In the
event that Tenant is unable to do so, Tenant will substitute alternative
equipment which remedies the situation. If such interference persists, Tenant
shall, at Landlord's sole discretion, remove such equipment.
ARTICLE XXVIII - MISCELLANEOUS
28.01 ENTIRE AGREEMENT. This Lease contains all of the agreements and
understandings relating to the leasing of the Premises and the obligations of
Landlord and Tenant in connection with such leasing. Landlord has not made, and
Tenant is not relying upon, any warranties, or representations, promises or
statements made by Landlord or any agent of Landlord, except as expressly set
forth herein. This Lease supersedes any and all prior agreements and
understandings between Landlord and Tenant and alone expresses the agreement of
the parties.
28.02 AMENDMENTS. This Lease shall not be amended, changed or modified
in any way unless in writing executed by Landlord and Tenant. Landlord shall not
have waived or released any of its rights hereunder unless in writing and
executed by Landlord.
28.03 SUCCESSORS. Except as expressly provided herein, this Lease and
the obligations of Landlord and Tenant contained herein shall bind and benefit
the successors and assigns of the parties hereto.
28.04 FORCE MAJEURE. Landlord shall incur no liability to Tenant with
respect to, and shall not be responsible for any failure to perform, any of
Landlord's obligations hereunder if such failure is caused by any reason beyond
the control of Landlord including, but not limited to, strike, labor trouble,
governmental rule, regulations, ordinance, statute or interpretation, or by
fire, earthquake, civil commotion, or failure or disruption of utility services.
The amount of time for Landlord to perform any of Landlord's obligations shall
be extended by the amount of time Landlord is delayed in performing such
obligation by reason of any force majeure occurrence whether similar to or
different from the foregoing types of occurrences.
28.05 SURVIVAL OF OBLIGATIONS. Any obligations of Tenant accruing prior
to the expiration of the Lease shall survive the expiration or earlier
termination of the Lease, and Tenant shall promptly perform all such obligations
whether or not this Lease has expired or been terminated.
28.06 LIGHT AND AIR. No diminution or shutting off of any light, air or
view by any structure now or hereafter erected shall in any manner affect this
Lease or the obligations of Tenant hereunder, or increase any of the obligations
of Landlord hereunder.
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28.07 GOVERNING LAW. This Lease shall be governed by, and construed in
accordance with, the laws of the State of Virginia.
28.08 SEVERABILITY. In the event any provision of this Lease is found to
be unenforceable, the remainder of this Lease shall not be affected, and any
provision found to be invalid shall be enforceable to the extent permitted by
law. The parties agree that in the event two different interpretations may be
given to any provision hereunder, one of which will render the provision
unenforceable, and one of which will render the provision enforceable, the
interpretation rendering the provision enforceable shall be adopted.
28.09 CAPTIONS. All captions, headings, titles, numerical references and
computer highlighting are for convenience only and shall have no effect on the
interpretation of this Lease.
28.10 INTERPRETATION. Tenant acknowledges that it has read and reviewed
this Lease and that it has had the opportunity to confer with counsel in the
negotiation of this Lease. Accordingly, this Lease shall be construed neither
for nor against Landlord or Tenant, but shall be given a fair and reasonable
interpretation in accordance with the meaning of its terms and the intent of the
parties.
28.11 INDEPENDENT COVENANTS. Each covenant, agreement, obligation or
other provision of this Lease to be performed by Tenant are separate and
independent covenants of Tenant, and not dependent on any other provision of the
Lease.
28.12 NUMBER AND GENDER. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include the appropriate number and gender, as the context may require.
28.13 TIME IS OF THE ESSENCE. Time is of the essence of this Lease and
the performance of all obligations hereunder.
28.14 JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one
person or entity, or if this Lease is guaranteed by any party, all such persons
shall be jointly and severally liable for payment of rents and the performance
of Tenant's obligations hereunder. If Tenant comprises more than one person or
entity and fewer than all of the persons or entities comprising Tenant abandon
the Premises, Landlord, at its sole option, may treat the abandonment by such
person or entities as an event of default and exercise with respect to such
persons the rights and remedies provided in Article XV without affecting the
right or obligations of the persons or entities comprising Tenant which have not
abandoned the property.
28.15 EXHIBITS. Exhibits A (Outline of Premises), B (Work Letter
Agreement), C (Suite Acceptance Letter), D (Tenant Operations Inquiry), E (List
of Additional Insureds), F (Rules and Regulations), Schedule 1 to Exhibit D
(List of Permissible Hazardous Materials and Quantities) and Rider are
incorporated into this Lease by reference and made a part hereof.
28.16 OFFER TO LEASE. The submission of this Lease to Tenant or its
broker or other agent, does not constitute an offer to Tenant to lease the
Premises. This Lease shall have no force and effect until (a) it is executed and
delivered by Tenant to Landlord and (b) it is fully reviewed and executed by
Landlord; provided, however, that, upon execution of this Lease by Tenant and
delivery to Landlord, such execution and delivery by Tenant, shall, in
consideration of the time and expense incurred by Landlord in reviewing the
Lease and Tenant's credit, constitute an offer by Tenant to lease the Premises
upon the terms and conditions set forth herein (which offer to Lease shall be
irrevocable for twenty (20) business days following the date of delivery).
28.17 WAIVER; NO COUNTERCLAIM; CHOICE OF LAWS. To the extent permitted
by applicable law, Tenant hereby waives the right to a jury trial in any action
or proceeding regarding this Lease and the tenancy created by this Lease. It is
mutually agreed that in the event Landlord commences any summary proceeding for
non-payment of Rent, Tenant will not interpose any counterclaim of whatever
nature or description in any such proceeding. In addition, Tenant hereby submits
to local jurisdiction in the State of Virginia and agrees that any action by
Tenant against Landlord shall be instituted in the State of Virginia and that
Landlord shall have personal jurisdiction over Tenant for any action brought by
Landlord against Tenant in the State of Virginia. To the extent permitted by
applicable law, Tenant hereby waives any and all rights of redemption granted by
any present or future laws.
28.18 ELECTRICAL SERVICE TO THE PREMISES. Anything set forth in Section
7.01 or elsewhere in this Lease to the contrary notwithstanding, electricity to
the Premises shall not be furnished by Landlord, but shall be furnished by the
approved electric utility company serving the Building. Landlord shall permit
Tenant to receive such service
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directly from such utility company at Tenant's cost (except as otherwise
provided herein) and shall permit Landlord's wire and conduits, to the extent
available, suitable and safely capable, to be used for such purposes.
28.19 RIGHTS RESERVED BY LANDLORD. Landlord reserves the following
rights exercisable without notice (except as otherwise expressly provided to the
contrary in this Lease) and without being deemed an eviction or disturbance of
Tenant's use or possession of the Premises or giving rise to any claim for
set-off or abatement of Rent: (i ) to change the name or street address of the
Building; (ii) to install, affix and maintain all signs on the exterior and/or
interior of the Building; (iii) to designate and/or approve prior to
installation, all types of signs, window shades, blinds, drapes, awnings or
other similar items, and all internal lighting that may be visible from the
exterior of the Premises; (iv) to change the arrangement of entrances, doors,
corridors, elevators and/or stairs in the Building, provided no such change
shall materially adversely affect access to the Premises; (v) to grant any party
the exclusive right to conduct any business or render any service in the
Building, provided such exclusive right shall not operate to prohibit Tenant
from using the Premises for the purposes permitted under this Lease; (vi) to
prohibit the placement of vending or dispensing machines of any kind in or about
the Premises other than for use by Tenant's employees; (vii) to prohibit the
placement of video or other electronic games in the Premises; (viii) to have
access for Landlord and other tenants of the Building to any mail chutes and
boxes located in or on the Premises according to the rules of the United States
Post Office; (ix) to close the Building after normal business hours, except that
Tenant and its employees and invitees shall be entitled to admission at all
times under such rules and regulations as Landlord prescribes for security
purposes; (x) to install, operate and maintain security systems which monitor,
by close circuit television or otherwise, all persons entering or leaving the
Building; (xi) to install and maintain pipes, ducts, conduits, wires and
structural elements located in the Premises which serve other parts or other
tenants of the Building; and (xii) to retain at all times master keys or pass
keys to the Premises.
28.20 TENANT OPERATIONS INQUIRY. As a material inducement to Landlord to
enter into this Lease (i) Tenant has completed Exhibit D hereto, and (ii) Tenant
represents and warrants to Landlord that Exhibit D is true and correct in all
material respects and is not misleading.
ARTICLE XXIX - FLOOR LOAD LIMITS
29.01 FLOOR LOAD LIMITS. Tenant shall not place a load upon any floor of
the Premises exceeding the floor load per square foot area which it was designed
to carry and which is allowed by law. Landlord reserves the right to prescribe
the weight and position of all safes, business machines and mechanical equipment
in the Building. Such installations shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Landlord's judgment, to absorb and
prevent vibration, noise and annoyance to occupants of the Building, Complex or
any adjacent property.
ARTICLE XXX - LANDLORD'S LIEN
30.01 LANDLORD'S LIEN. As security for Tenant's payment of Rent, damages
and all other payments required to be made by this Lease, Tenant hereby grants
to Landlord a lien upon all property of Tenant now or subsequently located upon
the Premises. If Lessee abandons or vacates any substantial portion of the
Premises or is in default in the payment of any rentals, damage or other
payments required to be made by this Lease, Landlord may take any action it
deems necessary and may be available to it under the laws of the State of
Virginia. The proceeds of the sale of the personal property shall be applied by
Landlord toward the cost of the sale and then toward the payment of all sums
then due by Tenant to Landlord under the terms of this Lease.
ARTICLE XXXI - UNIFORM COMMERCIAL CODE
31.01 UNIFORM COMMERCIAL CODE. To the extent, if any, this Lease grants
Landlord any lien or lien rights greater than provided by the laws of the State
of Virginia pertaining to "Landlord's Liens", this Lease is intended as and
constitutes a security agreement within the meaning of the Uniform Commercial
Code as in effect in the State of Virginia. Landlord, in addition to the rights
prescribed in this Lease, shall have a lien upon, and Tenant grants to Landlord
an interest in, all of Tenant's property now or hereafter located upon the
Premises, including without limitation all of Tenant's equipment, inventory,
fixtures, accounts, general intangibles and other items of personal property or
fixtures located upon the Premises whether now owned or hereafter acquired, and
all additions, substitutions, replacements and accessions thereto, and all
proceeds of the foregoing, to secure the payment to
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Landlord of the various amounts provided in this Lease. The Tenant agrees to and
shall execute and deliver to Landlord such "Financing Statements", continuation
statements, and provide such further assurances as Landlord may from time to
time consider necessary or desirable to create, perfect and preserve the lien
and security interest described above and all additions, substitutions,
replacements and accessions thereto, and all proceeds of its or their sale or
other disposition. The Landlord, at the expense of Tenant, may cause such
Financing Statements, continuation statements, and assurances to be recorded and
re-recorded, filed and re-filed, and renewed or continued, at such times and
places as may be required or permitted by law to create, perfect and preserve
such liens and security interests. In the event Tenant fails to promptly execute
and return to Landlord such Financing Statements or continuation statements as
Landlord may request to create, preserve and perfect its lien, Tenant shall and
does hereby designate Landlord to act as Tenant's agent for the sole and limited
purpose of executing and filing such Financing Statements or continuation
statements and any such execution by Landlord pursuant to this Lease shall be
effective and binding upon Tenant as though executed originally by Tenant, and
under such circumstances Tenant authorizes Landlord to sign such financing and
continuation statements. Tenant's designation of Landlord as agent hereunder
shall not be subject to revocation until this Lease is terminated.
NOTE: Need to file UCC-1 Financing Statement describing such collateral
in Secretary of State's office and county recorder
AND UCC-2 Financing Statement (fixtures), with legal description
attached, with the county recorder.
IN WITNESS WHEREOF, the parties hereto have executed this lease as of the
date first above written.
TENANT: LANDLORD:
------ --------
SENSYS TECHNOLOGIES INC., a Delaware corporation GATEWAY 95 PARTNERS, an Illinois general partnership
By: ▇▇▇▇▇▇▇ CAPITAL MANAGEMENT
CORPORATION, an Illinois corporation, its duly
authorized agent and attorney-in-fact
By: By:
-------------------------------- -----------------------------------
Its: Its:
-------------------------------- -----------------------------------
ATTEST:
------------------------------------
------------------------------------
WITNESSES: WITNESSES:
------------------------------------ ----------------------------------------------------
------------------------------------ ----------------------------------------------------
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EXHIBIT A
FLOOR PLAN OR LAYOUT OF PREMISES
(Approximately 7,634 Sq.Ft.)
(Office 7,634 Sq.Ft.)
(Warehouse 0 Sq.Ft.)
TENANT: SENSYS TECHNOLOGIES INC., A DELAWARE CORPORATION
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EXHIBIT B
WORK LETTER AGREEMENT
[LANDLORD PERFORMS WORK]
[ALLOWANCE]
This Work Letter Agreement ("Work Letter") is executed simultaneously
with that certain Lease (the "Lease") between SENSYS TECHNOLOGIES, INC., a
Delaware corporation as "Tenant", and GATEWAY 95 PARTNERS, an Illinois general
partnership, as "Landlord", relating to demised premises ("Premises") at the
building commonly known as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the
"Building"), which Premises are more fully identified in the Lease. Capitalized
terms used herein, unless otherwise defined in this Work Letter, shall have the
respective meanings ascribed to them in the Lease.
For and in consideration of the agreement to lease the Premises and the
mutual convenants contained herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. TENANT'S INITIAL PLANS; THE WORK. Tenant desires Landlord to
perform certain leasehold improvement work in the Premises in substantial
accordance with the plan or plans (collectively, the "Initial Plan") to be
prepared and attached hereto as Schedule 1. Such work, as shown in the Initial
Plan and as more fully detailed in the Working Drawings (as defined and
described in Paragraph 2 below), shall be hereinafter referred to as the "Work".
Not later than August 15, 1998, Tenant shall furnish to Landlord such additional
plans, drawings, specifications and finish details as Landlord may reasonably
request to enable Landlord's architects and engineers to prepare mechanical,
electrical and plumbing plans and to prepare the Working Drawings, including a
final telephone layout and special electrical connection requirements, if any.
All plans, drawings, specifications and other details describing the Work which
have been or are hereafter furnished by or on behalf of Tenant shall be subject
to Landlord's approval, which Landlord agrees shall not be unreasonably
withheld. Landlord shall not be deemed to have acted unreasonably if it
withholds its approval of any plans, specifications, drawings or other details
or of any Additional Work (as defined in Paragraph 7 below) because, in
Landlord's reasonable opinion, the work, as described in any such item, or the
Additional Work, as the case may be: (a) is likely to adversely affect Building
systems, the structure of the Building or the safety of the Building and/or its
occupants; (b) might impair Landlord's ability to furnish services to Tenant or
other tenants in the Building; (c) would increase the cost of operating the
Building; (d) would violate any governmental laws, rules or ordinances (or
interpretations thereof); (e) contains or uses hazardous or toxic materials or
substances; (f) would adversely affect the appearance of the Building; (g) might
adversely affect another tenant's premises; (h) is prohibited by any ground
lease affecting the Building or any mortgage, trust deed or other instrument
encumbering the Building; or (i) is likely to be substantially delayed because
of unavailability or shortage of labor or materials necessary to perform such
work or the difficulties or unusual nature of such work. The foregoing reasons,
however, shall not be the only reasons for which Landlord may withhold its
approval, whether or not such other reasons are similar or dissimilar to the
foregoing. Neither the approval by Landlord of the Work or Initial Plan or any
other plans, drawings, specifications or other items associated with the Work
nor Landlord's performance, supervision or monitoring of the Work shall
constitute any warranty by Landlord to Tenant of the adequacy of the design for
Tenant's intended use of the Premises. Landlord shall be entitled to a payment
of 5% of the cost associated with the completion of Tenant's buildout, which
cost shall include architectural and engineering and similar fees and all costs
associated with the construction of the space as charged by the general
contractor selected to perform the work. This payment is for the coordination
and day to day supervision performed by Landlord's staff in completing Tenant's
buildout. This payment will be part of the Tenant Allowance package.
2. WORKING DRAWINGS. If necessary for the performance of the Work
and not included as part of the Initial Plan attached hereto, Landlord shall
prepare or cause to be prepared final working drawings and specifications for
the Work (the "Working Drawings") based on and consistent with the Initial Plan
and the other plans, drawings, specifications, finish details and other
information furnished by Tenant to Landlord and approved by Landlord pursuant to
Paragraph 1 above. So long as the Working Drawings are consistent with the
Initial Plan, Tenant shall
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approve the Working Drawings within three (3) days after receipt of same from
Landlord by initialing and returning to Landlord each sheet of the Working
Drawings or by executing Landlord's approval form then in use, whichever method
of approval Landlord may designate.
3. PERFORMANCE OF THE WORK; ALLOWANCE. Except as hereinafter
provided to the contrary, Landlord shall cause the performance of the Work using
(except as may be stated or shown otherwise in the Working Drawings) building
standard materials, quantities and procedures then in use by Landlord ("Building
Standards"). Landlord shall pay for a portion of the "Cost of Work" (as defined
below) in an amount not to exceed $38,170 (such amount being $5 per rentable
square foot of the Premises which is to be improved, as described in the Working
Drawings) (the "Allowance"), and Tenant shall pay for the entire Cost of the
Work in excess of the Allowance. Tenant shall not be entitled to any credit,
abatement or payment from Landlord in the event that the amount of the Allowance
specified above exceeds the Cost of the Work. For purposes of this Agreement,
the term "Cost of the Work" shall mean and include any and all costs and
expenses of the Work, including, without limitation, the cost of the Working
Drawings and of all labor (including overtime) and materials constituting the
Work.
4. PAYMENT. Prior to commencing the Work, Landlord shall submit to
Tenant a written statement of the total Cost of the Work (which shall include
the amount of any overtime projected as necessary to substantially complete the
Work by the Commencement Date specified in the Lease) as then known by Landlord,
and such statement shall indicate the amount, if any, by which the total Cost of
the Work exceeds the Allowance (the "Excess Costs"). Tenant agrees, within three
(3) days after submission to it of such statement, to execute and deliver to
Landlord, in the form then in use by Landlord, an authorization to proceed with
the Work, and Tenant shall also then pay to Landlord an amount equal to the
Excess Costs. No Work shall be commenced until Tenant has fully complied with
the preceding provisions of this Paragraph 4. In the event, and each time, that
any change order by Tenant, unknown field condition, delay caused by acts beyond
Landlord's control or other event or circumstance causes the Cost of the Work to
be increased after the time that Landlord delivers to Tenant the aforesaid
initial statement of the Cost of the Work, Landlord shall deliver to Tenant a
revised statement of the total Cost of the Work, indicating the revised
calculation of the Excess Costs, if any. Within three (3) days after submission
to Tenant of any such revised statement, Tenant shall pay to Landlord an amount
equal to the Excess Costs, as shown in such revised statement, less the amounts
previously paid by Tenant to Landlord on account of the Excess Costs, and
Landlord shall not be required to proceed further with the Work until Tenant has
paid such amount. Delays in the performance of the Work resulting from the
failure of Tenant to comply with the provisions of this Paragraph 4 shall be
deemed to be delays caused by Tenant.
5. SUBSTANTIAL COMPLETION. Landlord shall cause the Work to be
"substantially completed" on or before the scheduled date of commencement of the
term of the Lease as specified in Section 1.05 of the Lease, subject to delays
caused by strikes, lockouts, boycotts or other labor problems, casualties,
discontinuance of any utility or other service required for performance of the
Work, unavailability or shortages of materials or other problems in obtaining
materials necessary for performance of the Work or any other matter beyond the
control of Landlord (or beyond the control of Landlord's contractors or
subcontractors performing the Work) and also subject to "Tenant Delays" (as
defined and described in Paragraph 6 of this Work Letter). The Work shall be
deemed to be "substantially completed" for all purposes under this Work Letter
and the Lease if and when Landlord's architect issues a written certificate to
Landlord and Tenant, certifying that the Work has been substantially completed
(i.e., completed except for "punchlist" items listed in such architect's
certificate) in substantial compliance with the Working Drawings, or when Tenant
first takes occupancy of the Premises, whichever first occurs. If the Work is
not deemed to be substantially completed on or before the scheduled date of the
commencement of the term of the Lease as specified in Section 1.05 of the Lease,
(a) Landlord agrees to use reasonable efforts to complete the Work as soon as
practicable thereafter, (b) the Lease shall remain in full force and effect, (c)
Landlord shall not be deemed to be in breach or default of the Lease or this
Work Letter as a result thereof and Landlord shall have no liability to Tenant
as a result of any delay in occupancy (whether for damages, abatement of Rent or
otherwise), and (d) except in the event of Tenant Delays, and notwithstanding
anything contained in the Lease to the contrary, the Commencement Date of the
Lease Term as specified in Section 1.05 of the Lease shall be extended to the
date on which the Work is deemed to be substantially completed and the
Expiration Date of the Lease Term as specified in Section 1.06 of the
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Lease shall be extended by an equal number of days. At the request of either
Landlord or Tenant in the event of such extensions in the commencement and
expiration dates of the term of the Lease, Tenant and Landlord shall execute and
deliver an amendment to the Lease reflecting such extensions. Landlord agrees to
use reasonable diligence to complete all punchlist work listed in the aforesaid
architect's certificate promptly after substantial completion.
6. TENANT DELAYS. There shall be no extension of the scheduled
commencement or expiration date of the term of the Lease (as otherwise
permissibly extended under Paragraph 5 above) if the Work has not been
substantially completed on said scheduled commencement date by reason of any
delay attributable to Tenant ("Tenant Delays"), including without limitation:
(i) the failure of Tenant to furnish all or any plans, drawings,
specifications, finish details or the other information required under Paragraph
1 above on or before the date stated in Paragraph 1;
(ii) the failure of Tenant to grant approval of the Working
Drawings within the time required under Paragraph 2 above;
(iii) the failure of Tenant to comply with the requirements of
Paragraph 4 above;
(iv) Tenant's requirements for special work or materials,
finishes, or installations other than the Building Standards or Tenant's
requirements for special construction staging or phasing;
(v) the performance of any Additional Work (as defined in
Paragraph 7 below) requested by Tenant or the performance of any work in the
Premises by any person, firm or corporation employed by or on behalf of Tenant,
or any failure to complete or delay in completion of such work; or
(vi) any other act or omission of Tenant that causes a delay.
7. ADDITIONAL WORK. Upon Tenant's request and submission by Tenant
(at Tenant's sole cost and expense) of the necessary information and/or plans
and specifications for work other than the Work described in the Working
Drawings ("Additional Work") and the approval by Landlord of such Additional
Work, which approval Landlord agrees shall not be unreasonably withheld,
Landlord shall perform such Additional Work, at Tenant's sole cost and expense,
subject, however, to the following provisions of this Paragraph 7. Prior to
commencing any Additional Work requested by Tenant, Landlord shall submit to
Tenant a written statement of the cost of such Additional Work, which cost shall
include a fee payable to Landlord in the amount of 15% of the total cost of such
Additional Work as compensation to Landlord for monitoring the Additional Work
and for administration, overhead and field supervision associated with the
Additional Work and an additional charge payable to Landlord in the amount of 5%
of the total Cost of the Additional Work as compensation for Landlord's general
conditions (such fee and additional charge being hereinafter referred to
collectively as "Landlord's Additional Compensation"), and, concurrently with
such statement of cost, Landlord shall also submit to Tenant a proposed tenant
extra order (the "TEO") for the Additional Work in the standard form then in use
by Landlord. Tenant shall execute and deliver to Landlord such TEO and shall pay
to Landlord the entire cost of the Additional Work, including Landlord's
Additional Compensation (as reflected in Landlord's statement of such cost),
within five (5) days after Landlord's submission of such statement and TEO to
Tenant. If Tenant fails to execute or deliver such TEO or pay the entire cost of
such Additional Work within such 5-day period, then Landlord shall not be
obligated to do any of the Additional Work and may proceed to do only the Work,
as specified in the Working Drawings.
8. TENANT ACCESS. Landlord, in Landlord's reasonable discretion and
upon request by Tenant, may grant to Tenant a license to have access to the
Premises prior to the date designated in the Lease for the commencement of the
term of the Lease to allow Tenant to do other work required by Tenant to make
the Premises ready for Tenant's use and occupancy (the "Tenant's Pre-Occupancy
Work"). It shall be a condition to the grant by Landlord and continued
effectiveness of such license that:
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(a) Tenant shall give to Landlord a written request to have such
access to the Premises not less than five (5) days prior to the date on which
such access will commence, which written request shall contain or shall be
accompanied by each of the following items, all in form and substance reasonably
acceptable to Landlord: (i) a detailed description of and schedule for Tenant's
Pre-Occupancy Work; (ii) the names and addresses of all contractors,
subcontractors and material suppliers and all other representatives of Tenant
who or which will be entering the Premises on behalf of Tenant to perform
Tenant's Pre-Occupancy Work or will be supplying materials for such work, and
the approximate number of individuals, itemized by trade, who will be present in
the Premises; (iii) copies of all contracts, subcontracts and material purchase
orders pertaining to Tenant's Pre-Occupancy Work; (iv) copies of all plans and
specifications pertaining to Tenant's Pre-Occupancy Work; (v) copies of all
licenses and permits required in connection with the performance of Tenant's
Pre-Occupancy Work; (vi) certificates of insurance (in amounts satisfactory to
Landlord and with the parties identified in, or required by, the Lease named as
additional insureds) and instruments of indemnification against all claims,
costs, expenses, damages and liabilities which may arise in connection with
Tenant's Pre-Occupancy Work; and (vii) assurances of the ability of Tenant to
pay for all of Tenant's Pre-Occupancy Work and/or a letter of credit or other
security deemed appropriate by Landlord securing Tenant's lien-free completion
of Tenant's Pre-Occupancy Work.
(b) Such pre-term access by Tenant and its representatives shall
be subject to scheduling by Landlord.
(c) Tenant's employees, agents, contractors, workmen, mechanics,
suppliers and invitees shall work in harmony and not interfere with Landlord or
Landlord's agents in performing the Work and any Additional Work in the
Premises, Landlord's work in other premises and in common areas of the Building,
or the general operation of the Building. If at any time any such person
representing Tenant shall cause or threaten to cause such disharmony or
interference, including labor disharmony, and Tenant fails to immediately
institute and maintain such corrective actions as directed by Landlord, then
Landlord may withdraw such license upon twenty-four (24) hours' prior written
notice to Tenant.
(d) Any such entry into and occupancy of the Premises by Tenant or
any person or entity working for or on behalf of Tenant shall be deemed to be
subject to all of the terms, convenants, conditions and provisions of the Lease,
specifically including the provisions of Section IX thereof (regarding Tenant's
improvements and alterations to the Premises), and excluding only the covenant
to pay Rent. Landlord shall not be liable for any injury, loss or damage which
may occur to any of Tenant's Pre-Occupancy Work made in or about the Premises or
to property placed therein prior to the commencement of the term of the Lease,
the same being at Tenant's sole risk and liability. Tenant shall be liable to
Landlord for any damage to the Premises or to any portion of the Work or
Additional Work caused by Tenant or any of Tenant's employees, agents,
contractors, workmen or suppliers. In the event that the performance of Tenant's
Pre-Occupancy Work causes extra costs to Landlord or requires the use of
elevators during hours other than ___________a.m. to __________ p.m. on Monday
through Friday (excluding holidays) or of other Building services, Tenant shall
reimburse Landlord for such extra cost, and/or shall pay Landlord for such
elevator service or other building services at Landlord's standard rates then in
effect.
9. LEASE PROVISIONS. The terms and provisions of the Lease, insofar
as they are applicable to this Work Letter are hereby incorporated herein by
reference. All amounts payable by Tenant to Landlord hereunder shall be deemed
to be additional Rent under the Lease and, upon any default in the payment of
same, Landlord shall have all of the rights and remedies provided for in the
Lease.
10. MISCELLANEOUS.
(a) This Work Letter shall be governed by the laws of the state in
which the Premise are located.
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(b) This Work Letter may not be amended except by a written
instrument signed by the party or parties to be bound thereby.
(c) Any person signing this Work Letter on behalf of Tenant
warrants and represents he/she has authority to sign and deliver this Work
Letter and bind Tenant.
(d) Notices under this Work Letter shall be given in the same
manner as under the Lease.
(e) The headings set forth herein are for convenience only.
(f) This Work Letter sets forth the entire agreement of Tenant and
Landlord regarding the Work.
(g) In the event that the final working drawings and
specifications are included as part of the Initial Plan attached hereto, or in
the event Landlord performs the Work without the necessity of preparing working
drawings and specifications, then whenever the term "Working Drawings" is used
in this Agreement, such term shall be deemed to refer to the Initial Plan and
all supplemental plans and specifications approved by Landlord.
11. EXCULPATION OF LANDLORD AND ▇▇▇▇▇▇▇. Notwithstanding anything to
the contrary contained in this Work Letter, it is expressly understood and
agreed by and between the parties hereto that:
(a) The recourse of Tenant or its successors or assigns against
Landlord with respect to the alleged breach by or on the part of Landlord of any
representation, warranty, covenant, undertaking or agreement contained in this
Work Letter (collectively "Landlord's Work Letter Undertakings") shall extend
only to Landlord's interest in the real estate, of which the Premises demised
under the Lease are a part (hereinafter, "Landlord's Real Estate") and not to
any other assets of Landlord or its constituent partners; and
(b) Except to the extent of Landlord's interest in Landlord's Real
Estate, no personal liability or personal responsibility of any sort with
respect to any of Landlord's Work Letter Undertakings or any alleged breach
thereof is assumed by, or shall at any time be asserted or enforceable against,
Landlord, its constituent partners, ▇▇▇▇▇▇▇ Capital Management Corporation,
▇▇▇▇▇▇▇ Properties Ltd. or ▇▇▇▇▇▇▇ Virginia Management Inc., or against any of
their respective directors, officers, employees, agents, constituent partners,
beneficiaries, trustees or representatives.
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the
_______________ day of August, 1998.
TENANT: LANDLORD:
------ --------
SENSYS TECHNOLOGIES INC., a Delaware GATEWAY 95 PARTNERS, an Illinois general
corporation partnership
By: ▇▇▇▇▇▇▇ CAPITAL MANAGEMENT
CORPORATION, an Illinois corporation, its
duly authorized agent and attorney-in-fact
By:
----------------------------------
By:
----------------------------------
Its: Its:
--------------------------------- ----------------------------------
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SCHEDULE 1
INITIAL PLAN
Landlord agrees to perform the following items of work (the "Work") in
the Premises subject to Exhibit B:
1. Repaint the Premises.
2. Recarpet the Premises.
3. Thicken and extend to the roof deck conference room walls so as to
create a secured compartmental information facility (SCIF).
4. Create a lunchroom
5. Complete all building code requirements necessary to separate
suite 1700 from suite 1600 including but not limited to drywall,
HVAC, electrical and sprinkler work.
40
EXHIBIT C
SUITE ACCEPTANCE AGREEMENT
BUILDING NAME/ADDRESS: _________________________________________________________
TENANT NAME: ___________________________________________________________________
TENANT CODE: __________________________________ SUITE NUMBER: _________________
MANAGEMENT'S TENANT CONTACT: __________________________ PHONE: _________________
Gentlemen:
As a representative of the above referenced tenant, I/we have physically
inspected the suite noted above and its improvements with ______________________
_____, a representative of _________________________________ (name of HPL
Corporation). I/we accept the suite improvements as to compliance with all the
requirements indicated in our lease, also including the following verified
information below:
Lease Commencement Date: ___________________________, Occupancy Date _____________________
Lease Rent Start Date*: ____________________________, Actual Rent Start*: _________________
Lease Expiration Date: _____________________________, Actual Expiration Date: _____________
Date Keys Delivered: ______________________________
Items requiring attention:
-----------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
*If these dates are not the same, attach documentation.
NOTE: This inspection is to be made prior to tenant move-in.
Very truly yours,
-----------------------------------------
By:
----------------------------------
Its:
----------------------------------
Date:
----------------------------------
Distribution
41
Tenant
Tenant Lease File
Leasing Manager:
-----------------------------
HPL Document Control:
-----------------------------
Regional Construction Manager:
-----------------------------
Regional Engineering Manager:
-----------------------------
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EXHIBIT D
TENANT OPERATIONS
INQUIRY FORM
43
SCHEDULE 1 TO EXHIBIT D
LIST OF PERMISSIBLE
HAZARDOUS MATERIALS AND QUANTITIES
44
EXHIBIT E
ADDITIONAL INSUREDS
Additional insureds pursuant to the requirements outlined in Article X of the
Lease:
Gateway 95 Partners, an Illinois general partnership;
▇▇▇▇▇▇▇ Capital Management Corporation, an Illinois corporation;
▇▇▇▇▇▇▇ Properties Ltd., an Illinois corporation;
▇▇▇▇▇▇▇ Virginia Management Inc., a Delaware corporation;
and their respective partners, agents and employees
The Insurance Certificate should be sent to:
▇▇▇▇▇▇▇ Virginia Management Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Property Manager
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EXHIBIT F
RULES AND REGULATIONS
0.0.1 No storage outside the Premises of any material, pallets, disabled
vehicles, showcases or other items will be permitted, including but not limited
to trash, except in containers approved by Landlord. Tenant, its officers,
agents, servants and employees shall not allow anything to remain in any common
area passageway, hallway, stairway, sidewalk, court, corridor, ramp, entrance,
exit, loading area, or other area outside the Premises, or permit such areas to
be used at any time except for ingress or egress of Tenant, its officers,
agents, servants, employees, patrons, licensees, customers, visitors or
invitees. Common utility closets, telephone closets, and other such closets,
rooms and areas shall be used only for the purposes and in the manner designated
by Landlord, and may not be used by Tenant, or its contractors, agents,
employees, or other parties without Landlord's prior written consent.
0.0.2 The movement of furniture, equipment, machines, merchandise or
materials within, into or out of the Premises or the Building not in the
ordinary course of Tenant's business as permitted herein, shall be restricted to
time, method and routing of movement as determined by Landlord upon request from
Tenant and Tenant shall assume all liability and risk to property, the Premises,
the Building and, if applicable, the Complex in such movement. The movement of
furniture, equipment, machines, merchandise or materials within, into or out of
the Premises in the ordinary course of Tenant's permitted business shall also be
at Tenant's sole risk and responsibility and shall be conducted in such a
fashion as not to cause damage or injury to the Premises or the Building or to
disturb other occupants thereof. Tenant shall not move furniture, machines,
equipment, merchandise or materials within, into or out of the Premises or the
Building not in the ordinary course of Tenant's permitted business without
having first obtained a written permit from Landlord twenty-four (24) hours in
advance. Safes and other heavy fixtures, equipment or machines intended to be
kept permanently in the Premises shall be moved into the Premises or the
Building only with Landlord's written consent and placed where directed by
Landlord.
0.0.3 Landlord will not be responsible for lost or stolen personal
property, equipment, money or any article taken from Premises, regardless of how
or when loss occurs.
0.0.4 Tenant, its officers, agents, servants and employees shall not
install or operate any refrigerating or HVAC apparatus or carry on any
mechanical operation without written permission of Landlord. Tenant shall give
Landlord prompt notice of all damage to or defects in HVAC equipment, plumbing,
electric facilities or any part of appurtenance of the Premises.
0.0.5 Tenant, its officers, agents, servants or employees shall not use
the Premises for housing, lodging or sleeping purposes or for the cooking or
preparation of food without written permission of Landlord.
0.0.6 Tenant, its officers, agents, servants, employees, patrons,
licensees, customers, visitors or invitees shall not bring into the Premises or
keep on Premises any fish, fowl, reptile, insect or animal without the prior
written consent of the Landlord.
0.0.7 No locks shall be placed on any door in the Building without the
prior written consent of Landlord. Landlord will furnish two keys to each lock
on doors in the Premises and Landlord, upon request of Tenant, shall provide
additional duplicate keys at Tenant's expense. Tenant, its officers, agents,
servants and employees shall, before leaving the Premises unattended, close and
lock all doors and shut off all lights, business equipment and machinery. Damage
resulting from failure to do so shall be paid by Tenant.
0.0.8 Tenant, its officers, agents, servants or employees shall do no
painting or decorating in the Premises; or ▇▇▇▇, paint or cut into, drive nails
or screw into nor in any way deface any part of the Premises or the Building
without the prior written consent of Landlord. If Tenant desires signal,
communication, alarm or other utility or service connection installed or
changed, such work shall only be done at expense of Tenant, with the written
approval and under the direction of Landlord. Tenant, without the prior written
consent of Landlord, shall
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46
not lay linoleum or other similar floor covering within the Premises. Tenant
shall not install any antenna, satellite dish or aerial wires, radio or
television equipment or any other type of equipment inside or outside of the
Building, without Landlord's prior approval in writing. No showcases, awnings or
other articles or projections shall be affixed to any part of the exterior of
the Building, without the prior written consent of Landlord.
0.0.9 Tenant, its officers, agents, servants and employees shall not
permit the operation of any musical or sound-producing instruments or device
which may be heard outside the Premises, or which may emanate electrical waves
or x-rays or other emissions which will be hazardous to health, well-being or
condition of persons or property.
0.0.10 All plate and other glass now in the Premises or Building which is
broken through cause attributable to Tenant, its officers, agents, servants,
employees, patrons, licensees, customers, visitors or invitees shall be replaced
by and at expense of Tenant under the direction of Landlord.
0.0.11 The plumbing facilities (including, without limitation, toilet
rooms, urinals, wash bowls, drains and sewers) shall not be used for any other
purpose than that for which they are constructed, and no foreign substance of
any kind shall be thrown therein, and the expense of any breakage, stoppage or
damage resulting from a violation of this provision shall be borne by Tenant,
who shall, or whose officers, employees, agents, servants, patrons, customers,
licensees, visitors or invitees shall, have caused it. Landlord shall not be
responsible for any damage due to stoppage, backup or overflow of the drains or
other plumbing fixtures.
0.0.12 All contractors and/or technicians performing work for Tenant
within the Premises, Building or Complex shall be referred to Landlord for
written approval before performing such work. This shall apply to all work
including, but not limited to, installation of telephones, telegraph equipment,
electrical devices and attachments, and all installations affecting floors,
walls, windows, doors, ceilings, equipment or any other physical feature of the
Building, the Premises or the Complex. None of this work shall be done by Tenant
without Landlord's prior written approval.
0.0.13 Neither Tenant nor any officer, agent, employee, servant, patron,
customer, visitor, licensee or invitee of any Tenant shall go upon the roof of
the Building, without the written consent of the Landlord.
0.0.14 Canvassing, soliciting, distribution of hand-bills or any other
written material peddling in the Building or the Complex are prohibited, and
Tenant shall cooperate to prevent the same. Tenant shall not advertise the
business, profession or activities of Tenant in any manner which violates the
letter or spirit of any code of ethics adopted by any recognized association or
organization pertaining thereto, use the name of the Building for any purpose
other than that of the business address of Tenant or use any picture or likeness
of the Building or the Complex name in any letterheads, envelopes, circulars,
notices, advertisements, containers or wrapping material without Landlord's
express consent in writing.
0.0.15 Tenant shall not conduct its business and/or control its officers,
agents, employees, servants, patrons, customers, licensees and visitors in such
a manner as to commit waste or suffer or permit waste to be committed in
Premises. Tenant shall not do or permit anything in or about the Premises that
is immoral, obscene, pornographic, disreputable or dangerous to life, limb or
property, or do any act tending to injure the reputation of the Complex. No
activity creating dust or fumes that may be hazardous shall be performed in the
Premises except in an environment controlled by air-handling equipment properly
and lawfully designed and utilized, which shall be maintained and operated at
all times to prevent hazardous accumulations of pollutants in the atmosphere
within the Premises or Complex.
0.0.16 Tenant shall not install in the Premises any equipment which uses
a substantial amount of electricity without the advance written consent of the
Landlord. The Tenant shall ascertain from the Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into account
the capacity of the electric wiring in the Building and the Premises and the
needs of other tenants in the Building and the Complex
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47
and shall not use more than such safe capacity. The Landlord's consent to the
installation of electric equipment shall not relieve the Tenant from the
obligation not to use more electricity than such safe capacity.
0.0.17 Tenant shall not use, or permit any other party to use, the
Premises for any distress, fire, bankruptcy, close-out, "lost our lease" or
going-out-of-business sale or auction. Tenant shall not display any signs
advertising the foregoing anywhere in or about the Premises. This prohibition
shall also apply to Tenant's creditors.
0.0.18 Tenant agrees to park in only those parking stalls designated as
tenant parking. Tenant shall hold Landlord harmless for the removal and charges
related thereto when Tenant, or its employees, park in spaces designated as
reserved parking (other than reserved for Tenant), visitor parking, handicapped
parking, or red or yellow curb areas. Tenant shall not park or allow to be kept
any vehicle on the Premises, either company or personnel, which is not being
used on a daily basis.
0.0.19 Tenant shall not maintain armed security in or about the Premises
nor possess any weapons, explosives, combustibles or other hazardous devices in
or about the Building and/or Premises.
0.0.20 All of Tenant's signs shall: (i) be professionally designed,
prepared and installed, (ii) not advertise any product, (iii) comply with any
sign criteria developed by Landlord from time to time, and (iv) be subject to
all Applicable Laws and any covenants, conditions and restrictions applicable to
the Complex or Building. Tenant shall maintain all signs hereunder in good
repair and sightly first class condition. Tenant shall not use strobe or
flashing lights in or on the Premises or in any signs therefor.
0.0.21 Tenant shall conduct its labor relations and relations with
employees so as to avoid strikes, picketing, and boycotts of, on or about the
Premises or Complex. If any employees strike, or if picket lines or boycotts or
other visible activities objectionable to Landlord are established, conducted or
carried out against Tenant, other occupants of the Premises or their employees,
agents, transferees or contractors in or about the Premises or Complex, Tenant
shall immediately close the Premises and remove or cause to be removed all such
occupants, employees, agents, transferees and contractors until the dispute has
been settled.
0.0.22 Upon expiration or earlier termination of this Lease, in addition
to the requirements under Article 24 of this Lease, Tenant shall ensure that:
a. All interior and exterior lights and bulbs are operational.
b. All exhaust, ceiling and overhead fans are operational.
c. Warehouse floor areas are broom swept and clean of all trash and
materials.
d. Warehouse floor areas are cleaned of oils, fluids and other
foreign materials.
e. All electrical, plumbing and other utilities which are terminated
are disconnected, capped and/or terminated according to applicable
building codes and all other governmental requirements.
f. All electrical and telecommunications conduit and wiring installed
by or for Tenant specifically for Tenant's equipment is removed to
the originating panel if Landlord so requires.
g. Overhead interior and exterior doors are operational and in good
condition.
h. Any bolts secured to the floor are cut off flush and sealed with
epoxy.
i. Warehouse fencing or partitions are removed if Landlord so
requires.
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j. All furniture, trash and debris are removed.
k. All signs and pictures, posters, signage, stickers and all similar
items of Tenant and any other occupant of the Premises are removed
from all walls, windows, doors and all other interior and exterior
surfaces of the Premises and other locations of the Complex.
l. All carpet areas are vacuumed.
m. All uncarpeted office floors are swept, and any excess wax
build-up on tile and vinyl floors is properly removed.
n. All computer cable and conduit installed by or for Tenant is
removed to point of origin.
o. All windows and miscellaneous hardware are operational and in good
condition.
p. All HVAC and mechanical systems and equipment are operational and
in good condition.
q. Ceiling tiles, grid, light lenses, air grills and diffusers are in
place with no holes or stains.
r. There are no broken windows or other glass items.
s. Bathroom walls, floors, and fixtures are clean and in good
condition.
t. All plumbing fixtures are intact, operational free of leaks and in
good condition.
u. All gutters and downspouts are undamaged and operational.
▇. ▇▇▇▇▇ (internal and external) are clean and any holes are properly
and permanently patched.
w. All keys to all locks to or within the Premises, any key cards and
parking stickers, the combination to any vaults that Landlord
permits or requires Tenant to leave on the Premises, all plans and
specifications for all leasehold improvements made to the
Premises, and all reports, studies and other materials relating to
Hazardous Materials that were ever on the Premises, shall be
turned over to Landlord.
x. If Tenant is the only occupant of the Building, all lawns have
recently been mowed and edged and shrubbery trimmed; all plants, trees
and shrubbery are intact and healthy; all lawn sprinkler equipment is
operational with no water leaks; and the roof is in good condition and
repair (in accordance with NRCA guidelines) with no apparent leaks.
0.0.23 Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or landlords, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant or landlords, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the Complex.
0.0.24 These 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 and conditions of any lease on premises in the Building or
the Complex. Tenant shall be responsible for ensuring compliance with these
Rules and Regulations as they may be amended, by Tenant's employees and as
applicable, by Tenant, any other occupant of the Premises and their respective
agents, employees, invitees, transferees and contractors.
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RIDER TO LEASE DATED AS OF AUGUST, 1998 BY
AND BETWEEN GATEWAY 95 PARTNERS, AN ILLINOIS GENERAL PARTNERSHIP ("LANDLORD"),
AND SENSYS TECHNOLOGIES INC., A DELAWARE CORPORATION ("TENANT")
This Rider and the Lease shall, for any and all purposes, be deemed to be one
instrument. In the event of any conflict or inconsistency between the terms and
provisions of the Lease and the terms and provisions of this Rider, the terms
and provisions of this Rider shall, in all instances, control and prevail.
Except as expressly defined or modified in this Rider, all words and phrases
which are defined in the Lease shall have the same meaning in this Rider as is
ascribed to such words and phrases in the Lease.
32.01 RENEWAL OPTION. Tenant shall have one (1) option (the "Renewal Option")
to renew the initial term with respect to all (but not less than all) of the
Premises demised under or pursuant to this Lease as of the expiration date of
the Term for one additional term (the "Renewal Term") of five (5) years,
commencing on the day immediately following the expiration date of the initial
Term, under the following terms and conditions and subject to credit approval by
Landlord:
(1) Tenant gives Landlord written notice of its election to exercise the
Renewal Option no earlier than the date which is three hundred sixty-five (365)
days prior to the expiration date of the initial Term and no later than the date
which is two hundred seventy (270) days prior to the expiration date of the
initial Term;
(2) Tenant is not in breach or default under this Lease either on the date
Tenant exercises the Renewal Option or at any time through and including the
proposed commencement date of the Renewal Term.
32.02 TERM. If Tenant timely and properly exercises the Renewal Option in
accordance with the provisions of Section 32.01:
(1) The Rent payable for the Renewal Term shall be based on the then
prevailing rent for similar space in this property, but in no event shall the
rental rate be less than the adjusted rental rate payable under this Lease on
the expiration date of the initial Term. For purposes of the preceding sentence,
"prevailing rental rate" shall mean the total rental then being quoted by
Landlord to third party tenants for reasonably comparable space in the Building
for leases approximately as long, and commencing at approximately the same time,
as the Renewal Term, subject to reasonable adjustment for the desirability of
the applicable floor or area of the Building. If Landlord is not then quoting
rental rates for comparable space, the rates used for purposes of this provision
shall be those rates Landlord would have used if Landlord had quoted such rates.
Landlord's good faith determination of the "prevailing rental rate" shall be
conclusive and binding as to Landlord and Tenant. If Tenant timely and properly
exercises the Renewal Option, Landlord agrees to give Tenant written notice
setting forth the prevailing rental rate, which notice shall be given prior to
the commencement date of the Renewal Term.
(2) Tenant shall have no further options to renew the initial Term of this
Lease beyond the expiration date of the Renewal Term.
50
(3) Landlord will not be required to give any economic concession in
connection with the exercise of this option. Without limiting the generality of
the foregoing, Landlord will not be obligated to perform or give an allowance
for leasehold improvements.
(4) Except as otherwise provided herein, all of the terms and provisions of
this Lease shall remain the same and in full force and effect during the Renewal
Term.
32.03 AMENDMENT. If Tenant exercises the Renewal Option, Landlord and Tenant
shall execute and deliver an amendment to this Lease (or, at Landlord's option,
a new lease on the form then in use for the Building) reflecting the lease of
the Premises by Landlord to Tenant for the Renewal Term on the terms provided
above, which amendment (or new lease, as the case may be) shall be executed and
delivered prior to the commencement date of the Renewal Term.
32.04 TERMINATION. The Renewal Option shall automatically terminate and become
null and void and of no force or effect upon the earlier to occur of (1) the
expiration or termination of this Lease, (2) the termination of the Tenant's
right to possession of the Premises, (3) the assignment of this Lease by Tenant,
(4) the sublease by Tenant of all or part of the Premises, or (5) the failure of
Tenant to timely or properly exercise the Renewal Option or (6) the occurrence
of an Event of Default by Tenant under the Lease.
32.05 ANTENNAE/SATELLITE DISH. Landlord shall permit Tenant to install on the
Building roof above Tenant's Premises, at Tenant's expense, one (1) mast mounted
antenna, two (2) satellite VSAT earth terminal antennae and three (3)
operational antennae for use in connection with Tenant's business during the
Lease Term under the following general conditions:
a) The diameter of the satellite dish or antennae does not exceed
10' and the overall height does not exceed 12' above the roof
deck;
b) Tenant submits to Landlord for approval within thirty (30)
days of Lease execution construction drawings prepared by a
licensed structural engineer that detail the method of
affixing the dish and the antennae to the roof deck;
c) Notification of approval or notice of required modifications
shall be given to Tenant within seven business days of
submittal to Landlord;
d) Tenant agrees to abide by reasonable specific conditions for
installation which Landlord will forward following review and
approval;
e) Tenant restores the Building roof to its original condition
upon Tenant's vacating the Premises;
f) Landlord's roof contractor makes the necessary roof
penetrations in order to insure that the Building roof
warranty, if any, remains intact;
g) Tenant bears all costs related to the installation and
maintenance of the satellite dish and antennae during the
Lease Term;
h) Tenant conforms to all other requirements stated in the Lease;
i) Tenant shall be responsible for procuring whatever license(s)
or permit(s) may be required from third persons for the use or
operation of the antennae/satellite dish, and Landlord makes
no warranties or representations as to the permissibility of
the antenna under applicable laws.
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Tenant warrants that the antennae/satellite dish shall not constitute a nuisance
or unreasonably interfere with the operations of the Landlord or other tenants.
IN WITNESS WHEREOF, the parties have caused this Rider to be executed on the
same date as the form lease to which it is attached.
LANDLORD:
GATEWAY 95 PARTNERS, AN ILLINOIS
GENERAL PARTNERSHIP
By:
----------------------------
Its:
----------------------------
TENANT:
SENSYS TECHNOLOGIES INC., A DELAWARE
CORPORATION
By:
----------------------------
Its:
----------------------------
3