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EXHIBIT 10.1
DEED OF LEASE
BETWEEN
4501 ▇▇▇▇, ▇.▇.
as Landlord,
AND
DIDAX, L.L.C.
as Tenant
Dated: 9/12 1995
For Premises Located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
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ARTICLE 1 ................................................. 1
BASIC LEASE PROVISIONS .................................... 1
1.1 Premises ......................................... 8
1.2 Building ......................................... 8
1.3 Term ............................................. 8
1.4 Commencement Date ................................ 8
1.5 Expiration Date .................................. 8
1.6 Basic Rent ....................................... 8
1.7 Security Deposit ................................. 8
1.8 Expense Stop ..................................... 8
1.9 Tenant's Proportionate Share of Operating Expenses 9
1.10 Parking Space Allocation ........................ 9
1.11 Permitted Use ................................... 9
1.12 Tenant's Trade Name ............................. 9
1.13 Broker(s) ....................................... 9
1.14 Landlord's Address .............................. 9
1.15 Tenant's Address ................................ 9
ARTICLE 2 ................................................. 9
DEFINITIONS ............................................... 9
2.1 Additional Rent .................................. 9
2.2 Agents ........................................... 9
2.3 Alterations ...................................... 9
2.4 Calendar Year .................................... 9
2.5 Common Area ...................................... 10
2.6 Event of Default ................................. 10
2.7 Herein, hereafter, hereunder and hereof .......... 10
2.8 Interest Rate .................................... 10
2.9 Land ............................................. 10
2.10 Lease Year ...................................... 10
2.11 Mortgage ........................................ 10
2.12 Mortgagee ....................................... 10
2.13 Operating Expenses .............................. 10
2.14 Parking Facilities .............................. 10
2.15 Real Estate Taxes ............................... 10
2.16 Rent ............................................ 10
2.17 Rules and Regulations ........................... 11
2.18 Substantial Completion .......................... 11
2.19 Substantial Part ................................ 11
2.20 Work Agreement .................................. 11
2.21 Project ......................................... 11
2.22 Legal Requirements .............................. 11
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ARTICLE 3 ................................................. 11
THE PREMISES .............................................. 11
3.1 Lease of Premises ................................ 11
3.2 Landlord's Reservations .......................... 12
ARTICLE 4 ................................................. 12
TERM ...................................................... 13
ARTICLE 5 ................................................. 12
RENT ...................................................... 12
5.1 Basic Rent ....................................... 12
5.2 Payment of Basic Rent ............................ 12
5.3 Additional Rent .................................. 13
ARTICLE 6 ................................................. 13
SECURITY DEPOSIT .......................................... 13
6.1 General .......................................... 13
6.2 Security in the Form of Cash ..................... 13
ARTICLE 7 ................................................. 14
OPERATING EXPENSES ........................................ 14
7.1 Tenant's Proportionate Share of Operating Expenses 14
7.2 Operating Expenses Defined ....................... 14
7.3 Exclusions from Operating Expenses ............... 16
7.4 Estimated Payments ............................... 17
7.5 Actual Operating Expenses ........................ 17
7.6 Tenant's Right to Audit .......................... 17
ARTICLE 8 ................................................. 18
TAXES ..................................................... 18
ARTICLE 9 ................................................. 18
PARKING ................................................... 18
9.1 Parking Spaces ................................... 18
9.2 Changes to Parking Facilities .................... 19
ARTICLE 10 ................................................ 19
USE ....................................................... 19
10.1 Use ............................................. 19
10.2 Payment of Taxes ................................ 19
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ARTICLE 11 ....................................... 19
ASSIGNMENT AND SUBLETTING ........................ 19
11.1 Consent ................................. 19
ARTICLE 12 ....................................... 20
MAINTENANCE AND REPAIR ........................... 20
12.1 Landlord's Obligation ................... 20
12.2 Tenant's Obligation ..................... 20
12.3 Compliance with Legal Requirements ...... 21
12.4 Landlord's Right to Maintain or Repair .. 21
ARTICLE 13 ........................................ 21
INITIAL CONSTRUCTION; ALTERATIONS ................. 21
13.1 Initial Construction .................... 21
13.2 Alterations ............................. 21
13.3 Removal of Alterations .................. 22
13.4 Landlord Alterations .................... 22
ARTICLE 14 ........................................ 23
SIGNS ............................................. 23
ARTICLE 15 ........................................ 23
TENANT'S EQUIPMENT AND PROPERTY ................... 23
15.1 Moving Tenant's Property .................. 23
15.2 Installing and Operating Tenant's Equipment 23
ARTICLE 16 ........................................ 24
RIGHT OF ENTRY .................................... 24
ARTICLE 17 ........................................ 24
INSURANCE ......................................... 24
17.1 Insurance Rating .......................... 24
17.2 Liability Insurance ....................... 24
17.3 Insurance for Personal Property ........... 24
17.4 Contractual Liability Insurance ........... 25
17.5 Requirements of Insurance Coverage ........ 25
17.6 Prohibition Against Concurrent Insurance .. 25
17.7 Waiver of Subrogation ..................... 25
17.8 Security .................................. 26
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ARTICLE 18 ................................................. 26
LANDLORD SERVICES AND UTILITIES ............................ 26
18.1 Ordinary Services to the Premises ................. 26
18.2 After-Hours Services to the Premises .............. 26
18.3 Landlord's Right to Meter Tenant's Electrical Usage 26
ARTICLE 19 ................................................. 27
LIABILITY OF LANDLORD ...................................... 27
19.1 No Liability .................................... 27
19.2 Indemnity ....................................... 27
ARTICLE 20 ................................................. 28
RULES AND REGULATIONS ...................................... 28
ARTICLE 21 ................................................. 28
DAMAGE; CONDEMNATION ....................................... 28
21.1 Damage to the Premises ............................ 28
21.2 Landlord Released from Liability .................. 29
21.3 Condemnation ...................................... 29
ARTICLE 22 ................................................. 30
DEFAULT .................................................... 30
22.1 Events of Default ................................. 30
22.2 Landlord's Remedies ............................... 30
22.3 Rights Upon Possession ............................ 31
22.4 No Waiver ......................................... 31
22.5 Right of Landlord to Cure Tenant's Default ........ 32
22.6 Late Payment ...................................... 32
22.7 Bankruptcy Termination Provision .................. 32
22.8 Landlord Default .................................. 33
ARTICLE 23 ................................................. 33
MORTGAGES .................................................. 33
23.1 Subordination ..................................... 33
23.2 Mortgage Protection ............................... 34
23.3 Modification Due to Financing ..................... 34
ARTICLE 24 ................................................. 34
SURRENDER; HOLDING OVER .................................... 34
24.1 Surrender of the Premises ......................... 34
24.2 Holding Over ...................................... 35
ARTICLE 25 ................................................. 35
QUIET ENJOYMENT ............................................ 35
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ARTICLE 26 ..................................... 35
TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS 35
26.1 Definition ........................... 35
26.2 General Prohibition .................. 35
26.3 Notice ............................... 36
26.4 Survival ............................. 36
ARTICLE 27 ..................................... 37
MISCELLANEOUS .................................. 37
27.1 No Representations by Landlord ....... 37
27.2 No Partnership ....................... 37
27.3 Brokers .............................. 37
27.4 Estoppel Certificate ................. 37
27.5 Waiver of Jury Trial ................. 38
27.6 Notices .............................. 38
27.7 Invalidity of Particular Provisions .. 38
27.8 Gender and Number .................... 38
27.9 Benefit and Burden ................... 38
27.10 Entire Agreement ..................... 38
27.11 Authority ............................ 38
27.12 Attorneys' Fees ...................... 39
27.13 Interpretation ....................... 39
27.14 No Personal Liability; Sale .......... 39
27.15 Time of the Essence .................. 40
27.16 Force Majeure ........................ 40
27.17 Headings ............................. 40
27.18 Memorandum of Lease .................. 40
27.19 Landlord's Relocation Option ......... 40
27.20 Effectiveness ........................ 40
27.21 Expansion Option ..................... 40
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LIST OF EXHIBITS
Exhibit A-1 Plan Showing Premises
Exhibit A-2 Plat Showing Land and Building
Exhibit A-3 Plan Showing Expansion Space
Exhibit B Work Agreement
Exhibit C Rules and Regulations
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DEED OF LEASE
THIS DEED OF LEASE (this "Lease") is made as of the 13 day of September
1995, the "Date of Lease"), by 4501 ▇▇▇▇, ▇.▇., a Virginia Limited Partnership
("Landlord"), and DIDAX L.L.C., a Virginia Limited Liability Company ("Tenant").
Landlord and Tenant, intending legally to be bound, hereby covenant and
agree as set forth below:
ARTICLE I
BASIC LEASE PROVISIONS
The following terms, when used herein, shall have the meanings set
forth below:
1.1 Premises. Approximately 2,997 gross rentable square feet located in
the Building as shown in the cross hatched area on Exhibit A-1 attached hereto
and made a part hereof.
1.2 Building. The building containing approximately 67,962 gross
rentable square feet shown on Exhibit A-2 attached hereto and made a part
hereof, and all alterations, additions, improvements, restorations or
replacements now or hereafter made thereto, with an address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
1.3 Term. Three (3) years, zero (0) months and zero (0) days.
1.4 Commencement Date. September 15, 1995, subject to adjustment as
set forth in Article 4.
1.5 Expiration Date. September 30, 1998, subject to adjustment as set
forth in Article 4.
1.6 Basic Rent. $12.75 for each rentable square foot of the Premises
for the first Lease Year which is equal to a total of $38,211.75 for the first
Lease Year payable in equal monthly installments of $3,184.31. The Basic Rent
for the entire Premises shall be increased annually by an amount equal to three
percent (3%) of the previous Lease Year Basic Rent commencing the Second Lease
Year.
1.7 Security Deposit. $9,552.93 in the form of cash. Please see Article
6.
1.8 Expenses Stop. The amount which is the sum of all of the Operating
Expenses (as defined in Article 7.2) incurred by the Landlord for the twelve
months of the Calendar Year 1996.
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1.9 Tenant's Proportionate Share of Operating Expenses. 4.41% of the
Operating Expenses allocable to the Building which is based upon the Premises
containing 2,997 gross rentable square feet of the total Building containing
67,962 gross rentable square feet.
1.10 Parking Space Allocation. Eleven (11) spaces, which shall be in
unreserved, non-exclusive parking spaces available in the Parking Facilities.
1.11 Permitted Use. General Office, including the telecommunications
and electronics necessary for Tenants business provided such equipment is
normally associated with general office use and complies with zoning
requirements.
1.12 Tenant's Trade Name. DIDAX, L.L.C.
1.13 Broker(s). Landlords: Barnes, Morris, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc..
Tenant's: Dulles Real Estate Corporation.
1.14 Landlord's Address ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
1.15 Tenant's Address. Before occupancy: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇. ▇▇▇▇ ▇▇▇▇. After Occupancy ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇. ▇▇▇▇ ▇▇▇▇.
ARTICLE II
DEFINITIONS
The following terms, when used herein, shall have the meaning set forth
below.
2.1 Additional Rent. As defined in Section 5.3.
2.2 Agents. Officers, partners, directors, agents, members and
managers.
2.3 Alterations. Alterations, decorations, additions or improvements of
any kind or nature to the Premises or the Building, whether structural or
non-structural, interior, exterior, or otherwise.
2.4 Calendar Year. A period of twelve (12) months commencing on each
January 1 during the Term, except that the first Calendar Year shall be that
period from and including the Commencement Date through December 31 of that same
year, and the last Calendar Year shall be that period from and including the
last January 1 of the Term through the earlier of the Expiration Date or date of
Lease termination.
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2.5 Common Area. All areas, improvements, facilities and equipment from
time to time designated by Landlord for the common use or benefit of Tenant,
other tenants of the Building and their Agents, including, without limitation,
entrances and exits, landscaped areas, exterior lighting, loading areas,
pedestrian walkways, sidewalks, atriums, courtyards, concourses, stairs, ramps,
washrooms, maintenance and utility rooms and closets, exterior utility lines,
hallways, lobbies, elevators and their housing and rooms, common window areas,
common walls, common ceilings, common trash areas and Parking Facilities.
2.6 Event of Default. As defined in Article 22.
2.7 Herein, hereafter, hereunder and hereof. Under this Lease,
including, without limitation, all Exhibits, Riders, and addenda.
2.8 Interest Rate. The highest per annum interest rate listed as the
base rate on corporate loans at large U.S. money center commercial banks as
published from time to time under "Money Rates" in the Wall Street Journal plus
three percent (3%), but in no event greater than the maximum rate permitted by
law. In the event the Wall Street Journal ceases to publish such rates, Landlord
shall choose at Landlord's sole discretion a similar publication which publishes
such rates.
2.9 Land. The piece or parcel of land described in Exhibit A-2 and all
rights, easements and appurtenances thereunto belonging or pertaining, or such
portion thereof as shall be allocated by Landlord to the Building.
2.10 Lease Year. Each consecutive twelve (12) month period elapsing
after (i) the Commencement Date if the Commencement Date occurs on the first day
of a month, or (ii) the first day of the month following the Commencement Date
if the Commencement Date does not occur on the first day of a month.
2.11 Mortgage. Any mortgage, deed of trust, security interest or title
retention interest affecting the Building or the Land.
2.12 Mortgagee. The holder of any note or obligation secured by a
mortgage, deed of trust, security interest or title retention interest affecting
the Building or the Land, including, without limitation, lessors under ground
leases, sale-leasebacks and lease-leasebacks.
2.13 Operating Expenses. As defined in Section 7.2.
2.14 Parking Facilities. All parking areas now or hereafter made
available by Landlord for use by tenants, including, without limitation,
open-air parking, parking decks and parking areas under or within the Building,
whether reserved, exclusive, non-exclusive or otherwise.
2.15 Real Estate Taxes. As defined in Article 8.
2.16 Rent. Basic Rent and Additional Rent.
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2.17 Rules and Regulations. The rules and regulations set forth in
Exhibit C attached hereto and made a part hereof, as the same may be reasonably
amended or supplemented from time to time.
2.18 Substantial Completion. As defined in the Work Agreement attached
hereto and made a part hereof as Exhibit B.
2.19 Substantial Part. More than fifty percent (50%) of the rentable
square feet of the Premises or the Building, as the case may be.
2.20 Work Agreement. As set forth in Exhibit B attached hereto and made
a part hereof.
2.21 Project: The Building, Parking Facilities, Land, and all
structures located on the land.
2.22 Legal Requirements: All laws, statutes, ordinances, orders, rules,
regulations and requirements, including all mandatory energy conservation
requirements applicable to the Building, of all federal, state and municipal
governments, and the appropriate agencies, officers, departments, boards and
commissions thereof, whether now or hereafter in force, applicable to the Land,
the Building, the Parking Facility and the Premises, or any part thereof, all
applicable local, state and federal laws and regulations relating to the use on,
storage in, and the removal from, the Land and/or the Building of hazardous or
toxic material, petro-chemical products or asbestos or products containing
asbestos; notices from a Mortgagee of the Building as to the manner of use or
occupancy or the maintenance, repair or condition of the Premises and/or the
Building; and all covenants, conditions and restrictions of record affecting the
use or occupancy of the Building.
ARTICLE 3
THE PREMISES
3.1 Lease of Premises. In consideration of the agreements contained
herein, Landlord hereby leases the Premises to Tenant, and Tenant hereby leases
the Premises from Landlord, for the Term and upon the terms and conditions
hereinafter provided. As an appurtenance to the Premises, Tenant shall have the
non-exclusive right, together with other tenants of the Building and their
Agents, to use the Common Area. Landlord shall retain absolute dominion and
control over the Common Area and shall operate and maintain the Common Area in
such manner as Landlord, in its sole discretion, shall determine; provided,
however, such exclusive right shall not operate to prohibit Tenant from its use
of the Premises for the Permitted Use. Landlord expressly reserves the right
permanently to change, modify or eliminate, or temporarily to close, any portion
of the Common Area provided that such change, modification or elimination does
not materially or unreasonably interfere with Tenant's access to or use of the
Premises. The Premises are leased subject to, and Tenant agrees not to violate,
all present and
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future covenants provided that any future encumberances shall not materially
adversly affect the rights of Tenant under this lease, conditions and
restrictions of record which affect the Building.
3.2 Landlord's Reservations. In addition to the other rights of
Landlord under this Lease, Landlord reserves the right (i) to change the street
address and/or name of the Building, (ii) to install, erect, use, maintain and
repair mains, pipes, conduits and other such facilities to serve the Building's
tenants in and through the Premises, (iii) to grant to anyone the exclusive
right to conduct any particular business or undertaking in the Building, (iv) to
control the use of the roof and exterior walls of the Building for any purpose
and (v) to use Tenant's name in promotional materials relating to the Building.
Landlord may exercise any or all of the foregoing rights without being deemed to
be guilty of an eviction, actual or constructive, or a disturbance or
interruption of the business of Tenant or Tenant's use or occupancy of the
Premises.
ARTICLE 4
TERM
The Term shall commence on the Commencement Date and expire at midnight
on the Expiration Date, but in any event the Term shall end on any date when
this Lease is sooner terminated. If Substantial Completion of the Premises has
not occurred on the date set forth in Article 1 as the Commencement Date, or if
Tenant uses or accepts the Premises before the date set forth in Article 1 as
the Commencement Date, then the Commencement Date shall be the earlier of (i)
the date of Substantial Completion or (ii) the date upon which Tenant uses or
accepts the Premises (e.g. by the moving of any furnishings or other personalty
into the Premises). In such event, the Expiration Date shall be adjusted
accordingly so that the period of the Term is not changed. If requested by
Landlord, Tenant shall within fifteen (15) days of such request sign a
declaration in recordable form acknowledging the Commencement Date and the
Expiration Date and such other terms of this Agreement as Landlord reasonably
requests.
ARTICLE 5
RENT
5.1 Basic Rent. Tenant shall pay to Landlord the Basic Rent as
specified in Section 1.6.
5.2 Payment of Basic Rent. Basic Rent for each Lease Year shall be
payable in equal monthly installments, in advance, without demand, notice,
deduction, offset or counterclaim, on or before the first day of each and every
calendar month during the Term; provided, however, that the installment of the
Basic Rent payable for the first full calendar month of the Term (and, if the
Commencement Date occurs on a date other than on the first day of a calendar
month, Basic Rent prorated from such date until the first day of the following
month) shall be due and payable on the full execution and delivery of this
Lease. Tenant shall pay the Basic Rent and all Additional Rent, by good check or
in lawful currency of the United States of America, to Landlord at Landlord's
Address, or to such other address or in such other manner as Landlord from time
to time specifies
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by written notice to Tenant. If Tenant makes any payment to Landlord by check,
such payment shall be by check of Tenant and Landlord shall not be required to
accept the check of any other person, and any check received by Landlord shall
be deemed received subject to collection. If any check is mailed by Tenant,
Tenant shall post such check in sufficient time prior to the date when payment
is due so that such check will be received by Landlord on or before the date
when payment is due. Tenant shall assume the risk of lateness or failure of
delivery of the mails, and no lateness or failure of the mails will excuse
Tenant from its obligation to make the payment in question when required under
this Lease. All bank service charge resulting from any bad checks shall be borne
by Tenant. Any payment made by Tenant to Landlord on account of Basic Rent may
be credited by Landlord to the payment of any late charges then due and payable
and to any Basic Rent or Additional Rent then past due before credited to Basic
Rent currently due.
5.3 Additional Rent. All sums payable by Tenant under the Lease, other
than Basic Rent, shall be deemed "Additional Rent," and, unless otherwise set
forth herein, shall be payable in the same manner as set forth above for Basic
Rent.
ARTICLE 6
SECURITY DEPOSIT
6.1 General. Simultaneously with the execution of this Lease, Tenant
shall deposit in the form of cash and an irrevocable letter of credit the
Security Deposit with Landlord, which shall be held by Landlord, without
obligation for interest, as security, for the performance of Tenant's
obligations and covenants under the Lease. It is expressly understood and agreed
that such deposit is not an advance rental deposit or a measure of Landlord's
damages in case of an Event of Default.
6.2 Security in the Form of Cash. If an Event of Default shall occur or
if Tenant fails to surrender the Premises in the condition required by this
Lease, Landlord shall have the right (but not the obligation), and without
prejudice to any other remedy which Landlord may have on account thereof, to
apply all or any portion of the Security Deposit to cure such default or to
remedy the condition of the Premises. If Landlord so applies the Security
Deposit or any portion thereof before the Expiration Date or earlier termination
of this Lease, Tenant shall deposit with Landlord, upon demand, the amount
necessary to restore the Security Deposit to its original amount. If Landlord
shall sell or transfer its interest in the Building, Landlord shall transfer the
Full Security Deposit to such purchaser or transferee, in which event Tenant
shall look solely to the new landlord for the return of the Security Deposit.
Landlord shall provide written notice of such transfer to Tenant, and Landlord
thereupon shall be released from all liability to Tenant for the return of the
Security Deposit. Although the Security Deposit shall be deemed the property of
Landlord, any remaining balance of the Security Deposit shall be returned to
Tenant at such time after the Expiration Date or earlier termination of this
Lease that all of Tenant's obligations under this Lease have been fulfilled.
Landlord shall conduct a "Post Move-Out Inspection" of the Premises within
thirty (30) days prior to Landlord's return of all or any portion of the
Security Deposit. The Security Deposit shall not be mortgaged, assigned or
encumbered in any manner whatsoever by Tenant. Landlord shall return $3,184.31
of the security deposit to tenant any time
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after one (1) full year of timely lease payments and proof to the Landlord that
Tenant has a net worth of at least $500,000 as certified by a C.P.A.
ARTICLE 7
OPERATING EXPENSES
7.1 Tenant's Proportionate Share of Operating Expenses. Tenant shall
pay to Landlord throughout the Term, as Additional Rent, Tenant's Proportionate
Share of the amount by which the Operating Expenses during each Calendar Year
exceed the Expense Stop. In the event that the Commencement Date or the
Expiration Date are other than the first day of a Calendar Year then Tenant's
Proportionate Share of the Operating Expenses shall be adjusted to reflect the
actual period of occupancy during the Calendar Year. Notwithstanding the above,
Tenant shall not be required to pay Tenant's proportionate share of the amount
by which the Operating Expenses during each Calendar Year exceed the Expense
stop until January 1, 1997.
7.2 Operating Expenses Defined. As used herein, the term "Operating
Expenses" shall mean all expenses and costs of every kind and nature which
Landlord incurs because of or in connection with the ownership, maintenance,
management and operation of the Building (which expressly includes the Land, the
Building and the Common Area), if the Building is less than ninety-five percent
(95%) occupied, including all additional costs and expenses of operation,
management and maintenance of the Building, which Landlord reasonably determines
that it would have paid or incurred during any Calendar Year if the Building had
been ninety-five percent (95%) occupied. If, during all or any part of a
calendar year, any part of the Building is leased to a tenant (hereinafter
referred to as a "Special Tenant") which, in accordance with the terms of its
lease, provides its own cleaning and janitorial services, has separately
metered electrical service or is not otherwise required to pay Operating Expense
Increases on the basis of operating expenses for the Building which include
substantially the same components as the Operating Expenses (as defined in
Section 7.2), the Operating Expenses for such calendar year shall be increased
by the additional costs for cleaning and janitorial service, electricity and the
other expenses, as reasonably estimated by Landlord, that would have been
incurred by Landlord if Landlord had furnished and paid for cleaning and
janitorial services for the space occupied by the Special Tenant, the space
occupied by the Special Tenant was not separately metered for electricity or
Landlord had furnished and paid for any other service which the Special Tenant
did not receive and which was not included in operating expenses as defined in
the Special Tenant's lease. Operating Expenses shall include, without
limitation, all costs, expenses and disbursements incurred or made by or for
Landlord in connection with the following to the extent such expenses are
reasonably allocable to operation and maintenance of Building and have not been
directly or indirectly accounted for otherwise:
(i) Wages and salaries of all employees, including without
limitation an on-site management agent and staff, whether employed by Landlord
or the Building's management company, engaged in the operation and maintenance
or security or the Building and all costs related to or associated with such
employee or the carrying out of their duties, including uniforms
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and their cleaning, taxes, auto allowances and insurance and benefits
(including, without limitation, contributions to pension and/or profit sharing
plans and vacation or other paid absences);
(ii) All supplies and materials, including janitorial and
lighting supplies, used directly in the operation and maintenance of the
Project;
(iii) All utilities, including, without limitation,
electricity, telephone (including, without limitation, all costs and expenses of
telephone service for the sprinkler alarm system, if any), water, sewer, power,
gas, heating, lighting and air conditioning for the Project, except to the
extent such utilities are charged directly to or paid directly by, a tenant of
the Building;
(iv) All insurance purchased by Landlord or the Building's
management company relating to the Project and any equipment or other property
contained therein or located thereon including, without limitation, casualty,
liability, rental loss, sprinkler and water damage insurance;
(v) All repairs to the Project (excluding repairs paid for by
the proceeds of insurance or by Tenant or other third parties other than as a
part of the Operating Expenses), including interior, exterior, structural or
non-structural, and regardless of whether foreseen or unforeseen;
(vi) All maintenance of the Project, including, without
limitation, painting, ice and snow removal, landscaping including the purchase
and installation of additional landscaping not included in the original
landscaping plan and replacement or substitute landscaping, groundskeeping and
the patching, painting and resurfacing of driveways and parking lots;
(vii) A management fee payable to Landlord or the company or
companies, whether or not related to Landlord, managing the Building including
but not limited to a separate fee for the Parking Facilities, if any;
(viii) All maintenance, operation and service agreements for
the Project, and any equipment related thereto, including, without limitation,
service and/or maintenance agreements for the sprinkler system in the Building,
if any (excluding those paid for by Tenant or any third parties other than as a
part of Operating Expenses);
(ix) Accounting and legal fees incurred in connection with the
operation and maintenance of the Building or related thereto;
(x) Any additional services not provided to the Building at
the Commencement Date but thereafter provided by Landlord as Landlord in its
sole discretion shall deem necessary or desirable in connection with the
management or operation of the Project;
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(xi) All property owners association (Brookfield Corporate
Center) dues and related charges and all assessments, whether general, special
or otherwise, levied against Landlord or the Project pursuant to any
declaration or other instrument affecting the Project or any part or component
thereof,
(xii) All computer rentals for energy management or security
monitoring systems, if any;
(xiii) Any capital improvements made to the Building after the
Commencement Date to reduce operating expenses or to comply with legal
requirements (other than those made for the additional of rentable square
footage to the Building or for the sole benefit of a Building tenant pursuant to
its lease), the cost of which shall be amortized over such reasonable period as
Landlord shall determine, together with interest on the unamortized balance of
such cost at the Interest Rate or such higher rate as may have been paid by
Landlord on funds borrowed for the purposes of constructing said capital
improvements.
(xiv) All Real Estate Taxes which are defined in Article 8
below; all business license fees, personal property taxes and other taxes or
license fees which are part of the Project operations; and
(xv) Other reasonable and customary expenses and costs of
operating and maintaining the Project.
7.3 Exclusions from Operating Expenses. Operating Expenses shall not
include any direct or indirect expenses associated with the following:
(i) Legal fees, space planners' fees, real estate brokers'
leasing commissions and advertising expenses incurred in connection with the
original or future leasing of space in the Building;
(ii) Costs and expenses of alterations or improvements of the
Premises or the leasehold premises of other individual tenants;
(iii) Costs of correcting defects in the Building or the
materials used in the construction of the Building or the equipment or
appurtenances thereto to the extent covered by warranties and recovered by
Landlord;
(iv) Depreciation, interest and principal payments on
mortgages and other debts costs, if any, other than amortization of and the
interest factor attributable to permitted capital improvements;
(v) Costs and expenses associated with the operation of the
business of the person or entity which constitutes Landlord as the same are
distinguished from the costs of operation of the Building, including accounting
and legal matters, costs of defending any lawsuits with any mortgagee (except to
the extent the actions of Tenant or any other tenant may be in
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issue), cost of selling or financing any of Landlord's interest in the Building
and outside fees paid in connection with disputes with other tenants; and
(vi) Costs and expenses directly resulting from the gross
negligence or willful misconduct of Landlord or its Agents to the extent
provable by Tenant.
7.4 Estimated Payments. Landlord shall submit to Tenant, before the
beginning of each Calendar Year or as soon thereafter as possible, a statement
of Landlord's estimate of the prorated and reasonable Operating Expenses payable
by Tenant during such Calendar Year. In addition to the Basic Rent, Tenant shall
pay to Landlord on or before the first day of each month the properly prorated
share of estimated operating expenses payable by Tenant for such Calendar Year
as set forth in Landlord's statement. If Landlord fails to give Tenant notice of
its estimated payments due under this Section for any Calendar Year, then Tenant
shall continue making monthly estimated payments in accordance with the estimate
for the previous Calendar Year until a new estimate is provided. If the Landlord
determines that, because of unexpected increases in Operating Expenses or other
reasons, Landlord's estimate of the Operating Expenses was too low, then
Landlord shall have the right to give a new statement of the estimated Operating
Expenses due from Tenant for such Calendar Year or the balance thereof and to
▇▇▇▇ Tenant for any deficiency which may have accrued during such Calendar Year,
and Tenant shall thereafter pay monthly estimated payments based on such new
statement.
7.5 Actual Operating Expenses. Within one hundred twenty (120) days
after the end of each Calendar Year or as soon as possible thereafter, Landlord
shall submit a statement to Tenant showing the actual Operating Expenses for
such Calendar Year and Tenant's Proportionate Share of the amount by which such
Operating Expenses exceed the Expense Stop. If for any Calendar Year, Tenant's
estimated monthly payments exceed Tenant's Proportionate Share of the amount by
which the actual Operating Expenses for such Calendar Year exceed the Expense
Stop, then Landlord shall give Tenant a credit in the amount of the overpayment
toward Tenant's next monthly payments of estimated Operating Expenses. In the
event that the credit exceeds Tenant's future monthly statements, the Landlord
shall immediately reimburse such excess to Tenant in cash. If for any Calendar
Year Tenant's estimated monthly payments are less than Tenant's Proportionate
Share of the amount by which the actual Operating Expenses for such Calendar
Year exceed the Expense Stop, than Tenant shall pay the total amount of such
deficiency to Landlord within forty-five (45) days after receipt of the
statement from Landlord. Landlord's and Tenant's obligations with respect to any
overpayment or underpayment of Operating Expenses shall survive the expiration
or termination of this Lease.
7.6 Tenant's Right to Audit. In the event Tenant shall dispute the
amount set forth in Landlord's statement of actual Operating Expenses of the
Building, Tenant shall have the right, not later than sixty (60) days following
receipt of such statement, to cause Landlord's books and records with respect to
the preceding Calendar Year to be audited by an independent certified public
accountant mutually acceptable to Landlord and Tenant. Such audit shall occur
upon not less than five (5) days prior written notice to Landlord, at Landlord's
place of business or the actual location of Landlord's books and records if
different from Landlord's place of business, during Landlord's normal business
hours. The amount payable under this Section by Landlord to
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Tenant or by Tenant to Landlord, as the case may be, shall be appropriately
adjusted on the basis of such audit. Tenant shall bear all costs relating to
such inspection, including, but not limited to, costs of photocopies, except
that if such audit or review discloses a discrepancy of more than ten percent
(10%) in the annual Operating Expenses, such audit or review shall be at
Landlord's expense; provided however that Landlord's liability to reimburse
costs under this Section 7.6 shall not exceed One Thousand Five Hundred Dollars
($1,500.00). Any discrepancy shall be promptly corrected by a payment of any
applicable audit, or by a credit against the next payment(s) of Rent hereunder.
If Tenant shall not request an audit in accordance with the provisions of this
Section within sixty (60) days of receipt of Landlord's statement of actual
Operating Expenses, such statement shall be conclusively binding upon Landlord
and Tenant.
ARTICLE 8
TAXES
"Real Estate Taxes" shall mean all taxes and assessments, including but
not limited to, general or special, ordinary or extraordinary, foreseen or
unforeseen, assessed, levied or imposed by any governmental authority upon the
Building and the Land and upon the fixtures, machinery, equipment or systems in,
upon or used in connection with any of the foregoing, and the rental, revenue or
receipts derived therefrom, under the current or any future taxation or
assessment system or modification of, supplement to, or substitute for such
system. Real Estate Taxes also shall include special assessments, which are in
the nature of or in substitution for real estate taxes, including, without
limitation, road improvement assessments, special use area assessments and
school district assessments. If at any time the method of taxation prevailing at
the date of Lease shall be altered so that in lieu of, as a substitute for or in
addition to the whole or any part of the taxes now levied or assessed, there
shall be levied or assessed a tax of whatever nature, then the same shall be
included as Real Estate Taxes hereunder. Further, for the purposes of this
Article, Real Estate Taxes shall include the reasonable expenses (including,
without limitation, attorney's fees) incurred by Landlord in challenging or
obtaining or attempting to obtain a reduction of such Real Estate Taxes,
regardless of the outcome of such challenge. Notwithstanding the foregoing,
Landlord shall have no obligation to challenge Real Estate Taxes. If as a result
of any such challenge, a tax refund is made to Landlord, then the amount of such
refund less the expenses of the challenge shall be deducted from Real Estate
Taxes due in the Lease Year such refund is received.
ARTICLE 9
PARKING
9.1 Parking Spaces. During the Term, Tenant shall be entitled to park
in that number of parking spaces set forth in Space Allocation.
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9.2 Changes to Parking Facilities. Landlord shall have the right, from
time to time, without Tenant's consent, to change, alter, add to, temporarily
close or otherwise affect the Parking Facilities in such manner as Landlord, in
its sole discretion, deems appropriate including, without limitation, the right
to designate reserved spaces available only for use by one or more tenants
(however, in such event, those parking spaces shall still be deemed Common Area
for the purpose of the definition of Operating Expenses), provided that, except
in emergency situations or situations beyond Landlord's control, Landlord shall
provide alternative Parking Facilities.
ARTICLE 10
USE
10.1 Tenant shall occupy the Premises solely for the Permitted Use
under Tenant's Trade Name. Landlord warrants that applicable laws, ordinances,
regulations, orders and restrictive covenants permit the Permises to be used for
the Permitted Use as stated in Article 1.11. The Premises shall not be used
for any other purpose without the prior written consent of Landlord. Tenant
shall comply, at Tenant's expense, with (i) all present and future laws,
ordinances, regulations and orders of the United States of America, the
Commonwealth of Virginia and any other public or quasi-public federal, state, or
local authority having jurisdiction over the Premises, and (ii) any reasonable
request of Mortgagee or any insurance company providing coverage with respect to
the Premises. Tenant shall not use or occupy the Premises in any manner that is
unlawful or dangerous or that shall constitute waste, unreasonable annoyance or
a nuisance to Landlord or the other tenants of the Building.
10.2 Payment of Taxes. Throughout the Term, Tenant covenants and agrees
to pay ten (10) days before delinquency any and all taxes, assessments and
public charge levied, assessed or imposed upon Tenant's business conducted in
the Leased Premises, upon the Leasehold Estate or upon Tenant's Personal
Property.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
11.1 Consent. Tenant shall not assign, transfer, mortgage or otherwise
encumber this Lease or sublet or rent (or permit a third party to occupy or use)
the Premises, or any part thereof, nor shall any assignment or transfer of this
Lease or the right of occupancy hereunder be effected by operation of law or
otherwise, without the prior written consent of Landlord which shall not be
unreasonably withheld or delayed. For purposes of the foregoing prohibition, a
transfer at any one time or from time to time of fifty percent (50%) or more of
an interest in Tenant (whether stock, partnership interest or other form of
ownership or control) by any
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person(s) or entity(ties) having an interest in ownership or control of Tenant
at the Date of Lease shall be deemed to be an assignment of this Lease. If
Landlord consents to the proposed assignment or subletting, the initial Tenant
and any Guarantor shall remain liable under this Lease and the initial Tenant
shall pay to Landlord any amount of rent or other sums directly or indirectly
received by Tenant from any subtenant or assignee which exceeds the Rent. Any
assignment, encumbrance, or sublease without Landlord's written consent shall be
voidable by Landlord and, at Landlord's election, constitute an Event of Default
hereunder. Neither the consent by Landlord to any assignment, transfer,
encumbrance or subletting nor the collection or acceptance by Landlord of rent
from any assignee, subtenant or occupant shall be construed as a waiver or
release of the initial Tenant or any Guarantor from the terms and conditions of
this Lease or relieve Tenant or any subtenant, assignee or other party from
obtaining the consent in writing of Landlord to any further assignment,
transfer, encumbrance or subletting. Tenant hereby assigns to Landlord the rent
and other sums due from any subtenant, assignee or other occupant of the
Premises and hereby authorizes and directs each such subtenant, assignee or
other occupant to pay such rent or other sums directly to Landlord; provided,
however, that until the occurrence of an Event of Default, Tenant shall have the
license to continue collecting such rent and other sums.
ARTICLE 12
MAINTENANCE AND REPAIR
12.1 Landlord's Obligation. As long as no Event of Default has occurred
and is continuing, Landlord shall keep and maintain in good repair and working
order the Building, the Common Area and the equipment within and serving the
Premises and the Building (excluding Tenant's leasehold improvements in the
Premises) that are required for the normal maintenance and operation of the
Premises and the Building. The cost of such maintenance and repairs to the
Building and said equipment shall be included in the Operating Expenses and paid
by Tenant as provided in Article 7 herein. Tenant shall immediately give
Landlord written notice of any defect or need for repairs. After such notice,
Landlord shall have a reasonable opportunity to repair or cure such defect.
Landlord's liability with respect to any defects, repairs or maintenance for
which Landlord is responsible under any of the provisions of this Lease shall be
limited to the cost of such repairs or maintenance or the curing of such defect.
12.2 Tenant's Obligation. Tenant shall, at its own expense, maintain
all of Tenant's leasehold improvements in the Premises and other real and
personal property within the Premises in good condition, promptly making all
necessary repairs and replacements. Tenant shall repair at its expense, any and
all damage caused solely by Tenant or Tenant's Agents, contractors or
subcontractors to the Building, the Common Area, the Project or the Premises,
including equipment within and serving the Building, ordinary wear and tear
excepted. Notwithstanding the foregoing, Tenant shall bear the cost of, but
shall not itself perform without Landlord's prior consent, any such repairs
which would affect the Building's structure or mechanical or electrical systems
or which would be visible from the exterior of the Building or from any interior
Common Area of the Building. Where Landlord performs such repairs, Tenant shall
promptly pay to
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Landlord upon demand all reasonable and actual costs incurred in connection
therewith plus interest thereon at the Interest Rate from the demand date until
paid. Without the prior written consent of the Landlord, Tenant shall not have
access to the roof of the Building for any purpose whatsoever.
12.3 Compliance with Legal Requirements. Tenant, at its expense, shall
make any Alterations required after the Commencement Date to comply with Legal
Requirements to the extent the obligation to comply with such Legal Requirements
arises from Tenant's use or manner of use of the Premises. Tenant shall not use
or occupy the Premises, or permit the Premises, the Building, the Parking
Facility or the Project to be used or occupied, in violation of any Legal
Requirements. If, after the commencement of the Term, any governmental authority
shall contend or declare that the Premises are being used for a purpose which is
in violation of any Legal Requirements, Tenant shall, upon five days' notice
from Landlord, immediately discontinue such use of the Premises. If thereafter
the governmental authority asserting such violation threatens, commences or
continues proceedings against Landlord for Tenant's failure to discontinue such
use, in addition to any and all rights, privileges and remedies given to
Landlord under this Lease for default therein, Landlord shall have the right to
terminate this Lease forthwith. Tenant shall indemnify and hold harmless
Landlord from and against any and all liability for such violation or
violations.
12.4 Landlord's Right to Maintain Repair. If within five (5) days
following notice to Tenant, Tenant fails to commence to repair or replace any
damage to the Premises or Project which is Tenant's obligation to perform, and
diligently pursue timely completion of such repair and replacement, Landlord
may, at its option, cause all required maintenance, repairs or replacements to
be made. Tenant shall promptly pay Landlord all costs incurred in connection
therewith plus interest thereon at the Interest Rate from the due date until
paid.
ARTICLE 13
INITIAL CONSTRUCTION; ALTERATIONS
13.1 Initial Construction. Landlord and Tenant agree that the
construction of the Tenant Work and other initial construction with respect to
the Premises shall be performed in accordance with Exhibit B attached hereto and
made a part hereof
13.2 Alterations. Tenant shall not make or permit any Alternations
without the prior written consent of Landlord. Landlord may impose any
reasonable conditions to its consent, including, without limitation, (i)
delivery to Landlord of written and unconditional waivers of mechanic's and
materialmen's liens as to the Premises, the Building and the Land for all work,
labor, and services to be performed and materials to be furnished, signed by all
contractors, subcontractors, materialmen and laborers participating in the
Alterations, (ii) prior approval of the plans and specifications and Tenant's
contractor(s) with respect to the Alterations, (iii) supervision by Landlord's
representative at Tenant's expense of the Alterations and (iv) delivery to
Landlord of payment and performance bonds naming Landlord and Mortgagee as
obligees. The Alterations shall conform to the requirements of Landlord's and
Tenant's insurers and of the federal, state, and
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local governments having jurisdiction over the Premises, shall be performed in
accordance with the terms and provisions of this Lease in a good and workmanlike
manner befitting a first class office building and shall not adversely affect
the value, utility or character of the Premises. If the Alterations are not
performed as herein required, Landlord shall have the right, at Landlord's
option, to halt any further Alterations, or to require Tenant to perform the
Alterations as herein required or to require Tenant to return the Premises to
its condition before such Alterations. Subject to Section 13.3 herein, all
Alterations and fixtures, whether temporary or permanent in character, made in
or upon Premises either by Tenant or Landlord, will immediately become
Landlord's property and, at the end of the term will remain on the Premises
without compensation to Tenant. Notwithstanding the foregoing, if any mechanic's
or materialmen's lien is filed against the Premises, the Building or the Land
for work claimed to have been done for, or materials claimed to have been
furnished to or for the benefit of Tenant, such lien shall be discharged of
record by Tenant within ten (10) days by the Payment thereof or the filing of
any bond required by law. If Tenant shall fail to discharge any such lien,
Landlord may (but shall not be obligated to) discharge the same, the cost of
which shall be paid by Tenant within three (3) days of demand by Tenant. Such
discharge by Landlord shall not be deemed to waive or release the default of
Tenant in not discharging the same. Neither Landlord's consent to the
Alterations nor anything contained in this Lease shall be deemed to be the
agreement or consent of Landlord to subject Landlord's interest in the Premises,
the Building or the Land to any mechanic's or materialmens lien which may be
filed in respect of the Alterations.
13.3 Removal of Alterations. All or any part of the Alterations
(including, without limitation, wall-to-wall carpet and wiring), whether made
with or without the consent of Landlord, shall, at the election of Landlord,
either be removed by Tenant at its expense before the expiration of the Term or
shall remain upon the Premises and be surrendered therewith at the Expiration
Date or earlier termination of this Lease as the property of Landlord without
disturbance, molestation or injury. If Landlord requires the removal of all or
part of the Alterations, Tenant, at its expense, shall repair any damage to the
Premises or the Building caused by such removal. If Tenant fails to remove the
Alterations upon Landlord's request, then Landlord may (but shall not be
obligated to) remove the same and the cost of such removal and repair of any
damage caused by the same, together with any and all damages which Landlord may
suffer and sustain by reason of the failure of Tenant to remove the same, shall
be charged to Tenant and paid upon demand,
13.4 Landlord Alterations. Landlord shall have no obligation to make
any Alterations in or to the Premises, the Building, the Common area or the Land
except as specifically provided in the Work Agreement. Landlord hereby reserves
the right, from time to time, to make Alterations to the Building or the Land,
change the Building dimensions, erect additional stories thereon and attach
other buildings and structures thereto, and to erect such scaffolding and other
aids to construction as Landlord deems appropriate, and no such Alterations,
changes, construction or erection shall constitute an eviction, constructive or
otherwise, or permit Tenant any abatement of Rent or claim, provided that
Tenant's ability to conduct its business is not unreasonably curtailed.
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ARTICLE 14
SIGNS
No sign, advertisement or notice shall be inscribed, painted, affixed,
placed, or otherwise displayed by Tenant on any part of the Land or the outside
or the inside (including, without limitation, the windows) of the Building or
the Premises. Landlord shall, at Landlord's sole expense, place a suite entry
sign bearing Tenants name and a tenant identification sign on the Building
directory sign (together with other tenants in the Building) in accordance with
all applicable covenants, restrictions, governmental regulations and Landlord's
signage requirements. Any other permitted signs shall be installed and
maintained by Landlord at Tenant's sole expense. If any prohibited sign,
advertisement or notice is nevertheless exhibited by Tenant, Landlord shall have
the right to remove the same, and Tenant shall pay any and all expenses incurred
by Landlord in such removal, together with interest thereon at the Interest
Rate, upon demand. Landlord shall have the right to prohibit any sign,
advertisement, notice or statement to the public by Tenant which, in Landlord's
opinion, tends to impair the reputation of the Building or its desirability as a
first class office building.
ARTICLE 15
TENANT'S EQUIPMENT AND PROPERTY
15.1 Moving Tenant's Property. Any and all damage or injury to the
Premises or the Building caused by moving the property of Tenant into or out of
the Premises, or due to the same being on the Premises, shall be repaired by
Landlord, at the expense of Tenant. Tenant shall promptly remove from the Common
Area any of Tenant's furniture, equipment or other property there deposited.
15.2 Installing and Operating Tenant's Equipment. Without first
obtaining the written consent of Landlord, Tenant shall not install or operate
in the Premises (i) any electrically operated equipment or other machinery,
other than standard office equipment that does not require wiring, cooling, or
other service in excess of Building standards, (ii) any equipment of any kind or
nature whatsoever which will require any changes, replacements or additions to,
or changes in the use of, any water, heating, plumbing, air conditioning or
electrical system of the Premises or the Building, or (iii) any equipment which
causes the floor load to exceed the load limits for the Building. Landlord's
consent to such installation or operation may be conditioned upon the payment by
Tenant of additional compensation for any excess consumption of utilities and
any additional power, wiring, cooling or other service (as determined in the
sole discretion of Landlord) that may result from such equipment. Machines and
equipment which cause noise or vibration that may be transmitted to the
structure of the Building or to any space therein so as to be objectionable to
Landlord or any other Building tenant shall be installed and maintained by
Tenant, at its expense, on vibration eliminators or other devices sufficient to
eliminate such noise and vibration.
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ARTICLE 16
RIGHT OF ENTRY
Tenant shall permit Landlord or its Agents and contractors, at any time
with 24 hours advance notice except in the case of emergency, to enter the
Premises for a reasonable period, without charge therefore to Landlord and
without diminution of Rent, (i) to examine, inspect and protect the Premises and
the Building, (ii) to make such alterations and repairs or perform such
maintenance which in the sole judgment of Landlord may be deemed necessary or
desirable, (iii) to exhibit the same to prospective purchasers of the Building
or to present or future Mortgagees or (iv) to exhibit the same to prospective
tenants during the last twelve (12) months of the Term.
ARTICLE 17
INSURANCE
17.1 Insurance Rating. Tenant shall not conduct or permit any activity,
or place any equipment or material, in or about the Premises, the Building or
the Common Area which will increase the rate of fire or other insurance on the
Building or insurance benefitting any other tenant of the Building; and if any
increase in the rate of insurance is stated by any insurance company or by the
applicable insurance rating bureau to be due to any activity, equipment or
material of Tenant in or about the Premises, the Building or the Common Area,
such statement shall be conclusive evidence that the increase in such rate is
due to the same and, as a result thereof, Tenant shall pay such increase to
Landlord upon demand.
17.2 Liability Insurance. Tenant, at Tenant's sole cost and expense,
shall obtain and maintain in effect throughout the Term a policy of Commercial
General Liability Insurance (ISO form or equivalent) naming Landlord and (at
Landlord's request) the Mortgagees and any building manager as additional
insureds ("Additional Insureds"), protecting Landlord, Tenant and, if
applicable, the Additional Insureds against liability for bodily injury, death
and property damage occurring upon or in the Leased Premises, with such policy
to afford protection to the limit of not less than $2,000,000 with respect to
bodily injury or death or damage to property arising from any one occurrence and
$2,000,000 from the aggregate of all occurrences within each policy year. If
such policy also covers locations other than the Leased Premises, the policy
shall include a provision to the effect that the aggregate limit of $2,000,000
shall apply separately at the Leased Premises and that the insurer will provide
notice to Landlord if the aggregate is reduced either by payment of claims or
the establishment of reserves for claims if the payments or reserves exceed
$250,000. If the aggregate limit of $2,000,000 is reduced by the payment of a
claim or the establishment of a reserve, Tenant agrees to take immediate steps
to have the aggregate limit restored by endorsement to the existing policy or
the purchase of an additional insurance policy which complies with this
subsection.
17.3 Insurance for Personal Property. Tenant shall, at its sole cost
and expense, procure and maintain throughout the Term a property insurance
policy (written on an "All Risk" basis) insuring all of Tenant's personal
property, including but not limited to equipment, furniture,
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fixtures, furnishings and leasehold improvement which are the responsibility of
Tenant for not less than the full replacement cost of said property. All
proceeds of such insurance shall be used to repair or replace Tenant's property.
17.4 Contractual Liability Insurance. Tenant agrees to keep and
maintain as part of the coverage of its policy(ies) of liability insurance
contractual liability coverage or a contractual liability endorsement covering
Tenant's liability to Landlord for bodily injury or damage to property of
others, in the same limits required by subsection 17.2.
17.5 Requirements of Insurance Coverage. All such insurance required to
be carried by Tenant herein shall be with an insurance company licensed to do
business in the Commonwealth of Virginia and approved by Landlord. Such
insurance (i) shall contain an endorsement that such policy shall remain in full
force and effect notwithstanding that the insured has released its right of
action against any party before the occurrence of a loss; (ii) shall name
Landlord, Tenant and, at Landlord's request, any Mortgagee or ground lessor, as
the insured parties; and (iii) shall provide that the policy shall not be
cancelled, failed to be renewed or materially amended without at least
forty-five (45) days' prior written notice [fifteen (15) days if due to
non-payment of premium] to Landlord and, at Landlord's request, any Mortgagee.
On or before the Commencement Date and, thereafter, not less than thirty (30)
days before the expiration date of the insurance policy, an original of the
policy (including any renewal or replacement policy) or a certified copy
thereof, together with evidence satisfactory to Landlord of the payment of all
premiums for such policy, shall be delivered to Landlord and, at Landlord's
request, to any Mortgagee.
17.6 Prohibition Against Concurrent Insurance. All property insurance
shall be written as primary insurance. Tenant shall not take out separate
insurance concurrent in form or contributing in the event of loss with any
property damage insurance carried by Landlord for the Building unless Landlord
is included therein as an insured.
17.7 Waiver of Subrogation. Landlord and Tenant shall each include in
each of its property damage insurance policies, including Landlord's policies of
rent insurance and Tenant's policies of business interruption insurance, if any,
a waiver of the insurer's right of subrogation against the other party and the
officers, directors, agents and employees of, and the partners in, the other
party (and, in the case of Tenant's policies, against the Additional Insureds
and their respective officers, directors, agents and employees), or, if such
waiver at any time becomes unobtainable (i) an express agreement that such
policy shall not be invalidated if the insured waives or has waived before the
loss the right of recovery against any party responsible for an insured
casualty, or (ii) any other form of permission for the release of such
responsible party, provided such waiver, agreement or permission is obtainable
under normal commercial insurance practice at the time. If such waiver,
agreement, or permission is not, or ceases to be, obtainable without additional
charge or at all, the insured party shall so notify the other party promptly
after notice thereof. If the other party agrees in writing to pay the insurer's,
additional charge therefor, such waiver, agreement or permission shall (if
obtainable) be included in the policy. Landlord and Tenant hereby acknowledge
and agree that such waiver is obtainable under normal commercial insurance
practice on the date of this Lease at no additional charge.
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17.8 Security. In the event that Landlord engages the services of a
professional security system for the Building, it is understood that such
engagement shall in no way increase Landlord's liability for occurrences and/or
consequences which such a system is designed to detect or avert and that Tenant
shall look solely to its insurer as set out above for claims for damages or
injury to any person or property.
ARTICLE 18
LANDLORD SERVICES AND UTILITIES
18.1 Ordinary Services to the Premises. As long as no Event of Default
has occurred and is continuing, Landlord shall furnish to the Premises
throughout the Term (i) electricity, heating and air conditioning appropriate
for the Permitted Use between 8:00 a.m. and 6:00 p.m., Monday through Friday,
and between 9:00 a.m. and 1:00 p.m. on Saturday, except for legal holidays
observed by the federal government, (ii) reasonable janitorial service, (iii)
regular trash removal from the Premises, (iv) hot and cold water from points of
supply, (v) restrooms as required by applicable code, and (vi) elevator service,
if there is an elevator in the Building, provided that Landlord shall have the
right to remove such elevators from service as may be required for moving,
freight or for servicing or maintaining the elevators or the Building. The cost
of all services provided by Landlord hereunder shall be included within
Operating Expenses, unless changed directly (and not as a part of Operating
Expenses) to Tenant or another tenant of the Building. Landlord agrees to
furnish landscaping and grounds maintenance and snow clearing for the areas used
in common by the tenants of the Building. The foregoing services shall be
furnished by Landlord and reimbursed by Tenant as part of Operating Expenses;
provided, however, that Landlord shall be under no responsibility or liability
for occasional failure or interruption in such services caused by breakage,
accident, strikes, repairs or for any other cause or causes beyond the
reasonable control of Landlord, nor in any event for any indirect or
consequential damages; and failure or omission on the part of Landlord to
furnish such service shall not be construed as an eviction of Tenant, nor work
an abatement of Rent, nor render Landlord liable in damages, nor release Tenant
from prompt fulfillment of any of the covenants under this Lease.
18.2 After-Hours Services to the Premises. If Tenant requests that the
services to be furnished by Landlord (except Building standard electricity and
elevator service) be provided during periods in addition to the periods set
forth in Section 18.1, then Tenant shall obtain Landlord's consent thereto
and, if such consent is granted, shall pay upon demand Landlord's additional
expenses resulting therefrom. Landlord may, from time to time during the Term,
set a per hour charge for after-hours service which shall include the cost of
utility, service, labor costs, administrative costs and a cost for depreciation
of the equipment used to provide such after-hours service. The cost for after
hours service is currently $50.00 per hour.
18.3 Landlord's Right to Meter Tenant's Electrical Usage. If, at any
time or from time to time, the estimated connected electrical load (including
lighting and power) used by Tenant's lighting and electrically operated
equipment exceeds an average of 5 ▇▇▇▇▇ per square foot of the
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Premises, Landlord may either (i) install a separate electric meter for the
Premises, at Landlord's sole cost and expense, and Tenant shall reimburse
Landlord for the cost of electricity it consumes, as recorded by such meter, in
excess of the amount of electricity that would be consumed by a tenant whose
consumption of electricity was equal to, but did not exceed, the specified
limits, or (ii) from time to time have a survey made by an independent
electrical engineer or electrical consulting firm to be selected and paid for by
Landlord to determine the amount of electricity consumed by Tenant in excess of
the amount of electricity that would be consumed by a tenant whose consumption
of electricity was equal to, but did not exceed, the specified limits, and
Tenant shall pay to Landlord the cost of excess electricity it consumes as
determined by such electrical engineer or consulting firm.
ARTICLE 19
LIABILITY OF LANDLORD
19.1 No Liability. Landlord and its Agents shall not be liable to
Tenant or its Agents for, and Tenant, for itself and its Agents, does hereby
release Landlord and its Agents from liability for, any damage, compensation or
claim arising from (i) the necessity of repairing any portion of the Premises or
the Building or the Common Area or any structural defects thereto, (ii) any
interruption in the use of the Premises or the Common Area for any reason
including any interruption or suspension of utility service, (iii) fire or other
casualty or personal or property injury, damage or loss resulting from the use
or operation (by Landlord, Tenant, or any other person whomsoever) of the
Premises or the Building or the Common Area, (iv) the termination of this Lease,
(v) robbery, assault or theft or (vi) any leakage in the Premises or the
Building from water, rain, snow or other cause whatsoever. No such occurrence
shall give rise to diminution or abatement of Rent or constructive eviction. Any
goods, automobiles, property or personal effects stored or placed by Tenant or
its Agents in or about the Premises, the Building, the Land or the Common Area
shall be at the sole risk of Tenant, and Landlord and its Agents shall not in
any manner be held responsible therefor. Except to the extent expressly
prohibited by law, Tenant hereby waives any claim it might have against Landlord
or its Agents for any consequential damages sustained by Tenant arising out of
the loss or damage to any person or property of Tenant.
19.2 Indemnity. (i) Tenant shall indemnify and hold Landlord, and its
Agents, harmless from and against any and all damage, claim liability, cost or
expense (including, without limitation attorneys' or other professionals' fees)
of every kind and nature (including, without limitation, those arising from any
injury or damage to any person, property, or business) incurred by or claimed
against the other party or its Agents, directly or indirectly, as a result of,
arising from or in connection with the Tenant's or its Agent's use and occupancy
of the Premises, the Building or the Common Area. (ii) Landlord shall indemnify
and hold Tenant and its Agents harmless from and against any and all damage,
claims, liability, cost or expense (including, without limitation, attorneys' or
other professionals' fees) of every kind and nature (including, without
limitation, those arising from any injury or damage to any person, property or
business) incurred by or claimed against Tenant, directly or indirectly, as a
result of, arising from or in connection with Landlord's (but not any tenant's
or any tenant's sublessee, assign, invitee or guest) actions or
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culpable omissions upon or with respect to the Building or Common Area; provided
however, that no indemnity or hold harmless shall be provided by Landlord
pursuant to this paragraph as a result of, arising from or in connection with
any actions or omissions concerning which Landlord's liabilities or Tenant's
rights are limited pursuant to other provisions of this Lease.
ARTICLE 20
RULES AND REGULATIONS
Tenant and its Agents shall at all times abide by and observe the Rules
and Regulations and amendments thereto that may be promulgated from time to time
by Landlord for the operation and maintenance of the Building, the Land and the
Common Area and the Rules and Regulations shall be deemed to be covenants of the
Lease to be performed and/or observed by Tenant. Nothing contained in this Lease
shall be construed to impose upon Landlord any duty or obligation to enforce the
Rules and Regulations, or the terms or provisions contained in any other lease,
against any other tenant of the Building. Landlord shall not be liable to Tenant
for any violation by any party of the Rules and Regulations or the terms of any
other Building lease. If there is any inconsistency between this Lease and the
Rules and Regulation, this Lease shall govern. Landlord reserves the right to
amend and modify the Rules and Regulations as it deems necessary, provided such
amendments do not unreasonably and materially interfere with Tenant's conduct of
business or use of the Premises.
ARTICLE 21
DAMAGE; CONDEMNATION
21.1 Damage to the Premises. If the Premises shall be damaged by fire
or other cause without the fault or negligence of Tenant or its Agents, Landlord
shall diligently and as soon as practicable after such damage occurs (taking
into account the time necessary to effect a satisfactory settlement with any
insurance company involved) repair such damage at the expense of Landlord;
provided, however, that Landlord's obligation to repair such damage shall not
exceed the proceeds of insurance available to Landlord (reduced by any proceeds
retained pursuant to the rights of Mortgagee). Notwithstanding the foregoing, if
the Premises or the Building are damaged by fire or other cause to such an
extent that, in Landlord's sole judgment, the damage cannot be substantially
repaired within one hundred (100) days after the date of such damage, or if 50%
or more of the Premises are damaged during the last two (2) Lease Years, then
Landlord or Tenant within thirty (30) days from the date of such damage may
terminate this Lease by notice to the other. If either Landlord or Tenant
terminate this Lease, the Rent shall be apportioned and paid to the date of such
termination. If neither Landlord nor Tenant so elects to terminate this Lease
but the damage required to be repaired by Landlord is not repaired within one
hundred (100) days from the date of such damage (such one hundred (100) day
period to be extended by the period of any delay outside the direct control of
Landlord plus a reasonable period for a satisfactory settlement with any
insurance company involved), Tenant, within thirty (30) days from the expiration
of such one hundred (100) day period (as the same may be extended), may
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terminate this Lease by notice to Landlord. During the period that Tenant is
deprived of the use of the damaged portion of the Premises, and provided such
damage is not the consequence of the fault or negligence of Tenant or its
Agents, Basic Rent and Tenant's Proportionate Share shall be reduced by the
ratio that the rentable square footage of the Premises is unreasonably unuseable
because of the damage bears to the total rentable square footage of the Premises
before such damage. All injury as damage to the Premises or the Building
resulting from the fault or negligence of Tenant or its Agents shall be repaired
by Tenant, at Tenant's expense, and Rent shall not ▇▇▇▇▇. If Tenant shall fail
to do so or if Landlord shall so elect, Landlord shall have the right to make
such repairs, and any expense so incurred by Landlord, together with interest
thereon at the Interest Rate, shall be paid by Tenant upon demand.
Notwithstanding anything herein to the contrary, Landlord shall not be required
to rebuild, replace or repair any nonstandard tenant improvements, tenant extras
or Alterations or any personal property of Tenant.
21.2 Landlord Released from Liability. As long as Tenant's policies of
property damage insurance include the waiver of subrogation or agreement or
permission to release liability referred to in Section 17.7, Tenant, to the
extent that such insurance is in force and collectible, hereby waives (and
agrees to cause all other occupants of the Premises to execute and deliver to
Landlord instruments waiving) any right of recovery against Landlord, the
Additional Insureds and any of their respective officers, directors, agents,
employees, partners, contractors or invitees, for any loss or damage to
Alterations or Tenant's Personal Property caused by fire or other insured peril.
If at any time any of Tenant's policies shall not include a waiver of
subrogation or agreement or permission or similar provisions, the waiver set
forth in the preceding sentence shall, upon notice given by Tenant to Landlord,
be of no further force or effect from and after the giving of such notice (or,
if such insurer shall not grant such waiver for all of the required parties,
such waiver shall be of no force or effect only with respect to the required
parties not included in the waiver). If Tenant fails to obtain and maintain the
policy of property damage insurance required by Section 17.3, Tenant hereby
waives (and agrees to cause all occupants of the Premises to execute and
delivery to Landlord instruments waiving) any right of recovery against
Landlord, the Additional Insureds and any of their respective officers,
directors, agents, employees, partners, contractors and invitees, for any loss
or damage to Alterations or Tenant's Personal Property caused by fire or other
perils of the type that would have been insured against by the policy of
property damage insurance required by Section 17.3 if Tenant had obtained such
policy and the policy had been in effect on the date of the fire or other
insured peril.
21.3 Condemnation. If the whole or a Substantial Part of the Premises
or the Building shall be taken or condemned by any governmental or quasi-public
use or purpose (including, without limitation, sale under threat of such a
taking), then the Term shall cease and terminate as of the date when title vests
in such governmental or quasi-governmental authority, and Rent shall be prorated
to the date when title vests in such governmental or quasi-governmental
authority. If less than a Substantial Part of the Premises is taken or condemned
by any governmental or quasi-governmental authority for any public or
quasi-public use or purpose (including, without limitation, sale under threat of
such a taking), Basic Rent and Tenant's Proportionate Share shall be reduced by
the ratio that the portion so taken bears to the rentable square footage of the
Premises before such taking, effective as of the date when title vests in such
governmental or quasi-governmental authority, and this Lease shall otherwise
continue in full force and effect.
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Tenant shall have no claim against Landlord (or otherwise) as a result of such
taking, and Tenant hereby agrees to make no claim against the condemning
authority for any portion of the amount that may be awarded as compensation or
damages as a result of such taking; provided, however, that Tenant may, to the
extent allowed by law, claim an award for moving expenses and for the taking of
any of Tenant's property (other than its leasehold interest in the Premises)
which does not, under the terms of this Lease, become the property of Landlord
at the termination hereof, as long as such claim is separate and distinct from
any claim of Landlord and does not diminish Landlord's award. Tenant hereby
assigns to Landlord any right and interest it may have in any award for its
leasehold interest in the Premises.
ARTICLE 22
DEFAULT
22.1 Events of Default. Each of the following shall constitute an Event
of Default: (i) Tenant fails to pay Rent within five (5) days after notice from
Landlord; provided that no such notice shall be required if at least two such
notices shall have been given during the same Lease Year; (ii) Tenant fails to
observe or perform any other term, condition or covenant herein binding upon or
obligating Tenant within ten (10) days after notice from Landlord; (iii)
Landlord fails to observe or perform any other term, condition or covenant
herein binding upon or obligating Landlord within twenty (20) days after notice
from Tenant; (iv) Tenant abandons or vacates the Premises; (v) Tenant or any
Guarantor makes or consents to a general assignment for the benefit of creditors
or a common law composition of creditors, or a receiver of the Premises for all
or substantially all of Tenant's or Guarantor's assets is appointed, or (vi)
Tenant or Guarantor files a voluntary petition in any bankruptcy or insolvency
proceeding, or an involuntary petition in any bankruptcy or insolvency
proceeding is file against Tenant or Guarantor and is not discharged by Tenant
or Guarantor within sixty (60) days.
22.2 Landlord's Remedies. Upon the occurrence of an Event of Default,
Landlord, at its option, without further notice or demand to Tenant, may in
addition to all other rights and remedies provided in this Lease, at law or in
equity:
(i) Terminate this Lease and Tenant's right of possession of
the Premises, and recover all damages to which Landlord is entitled under law,
specifically including but without limitation, all of Landlord's expenses of
reletting (including, without limitation, rental concessions to new tenants,
repairs, Alterations, legal fees and brokerage commissions). If Landlord elects
to terminate this Lease, every obligation of the parties shall cease as of the
date of such termination, except that Tenant shall remain liable for payment of
Rent and performance of all other terms and conditions of this Lease to the date
of termination.
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(ii) Terminate Tenant's right of possession of the Premises
without terminating this Lease, in which event Landlord may, but shall not be
obligated to, relet the Premises, or any part thereof, for the account of
Tenant, for such rent and term and upon such other conditions as are acceptable
to Landlord in Landlord's sole discretion. For purposes of such reletting,
Landlord is authorized to redecorate, repair, alter and improve the Premises to
the extent necessary in Landlord's sole discretion. Until Landlord relets the
Premises, Tenant shall remain obligated to pay Rent to Landlord as provided in
this Lease. If and when the Premises are relet and if a sufficient sum is not
realized from such reletting after payment of all Landlord's expenses of
reletting (including, without limitation, rental concessions to new tenants,
repairs, Alterations, legal fees and brokerage commissions) to satisfy the
payment of Rent due under this Lease for any month, Tenant shall pay Landlord
any such deficiency upon demand. Tenant agrees that Landlord may file suit to
recover any sums due Landlord under this Section from time to time and that such
a suit or recovery of any amount due Landlord shall not be any defense to any
subsequent action brought for any amount not previously reduced to judgment in
favor of Landlord.
(iii) Terminate this Lease and Tenant's right of possession of
the Premises, and recover from Tenant the net present value of the Rent due from
the date of termination until the Expiration Date, discounted at the lesser of
the Interest Rate as of the date of termination or seven percent (7%) per annum.
(iv) Re-enter and repossess the Premises and remove all
persons and effects therefrom by summary proceeding, ejectment or other legal
action.
(v) Recover from Tenant, to the extent permitted under the
laws of the Commonwealth of Virginia, the value and/or cost of all concessions
to Tenant under this Lease.
22.3 Rights Upon Possession. If Landlord takes possession pursuant to
this Article, with or without terminating this Lease, Landlord may, at its
option, enter into the Premises, remove Tenant's Alterations, signs, personal
property, equipment and other evidences of tenancy, and store them at Tenant's
risk and expense or dispose of them as Landlord may see fit, and take and hold
possession of the Premises; provided, however, that if Landlord elects to take
possession only without terminating this Lease, such entry and possession shall
not terminate this Lease or release Tenant or any Guarantor, in whole or in
part, from the obligation to pay the Rent reserved hereunder for the full Term
or from any other obligation under this Lease or any guaranty thereof.
22.4 No Waiver. If Landlord shall institute proceedings against Tenant
and a compromise or settlement thereof shall be made, the same shall not
constitute a waiver of any other covenant, condition or agreement herein
contained, nor of any of Landlord's rights hereunder. No waiver by Landlord of
any breach shall operate as a waiver of such covenant, condition or agreement,
or operate as a waiver of such covenant, condition or agreement itself, or of
any subsequent breach thereof.
If Tenant shall institute proceedings against Landlord and a compromise or
settlement thereof shall be made, the same shall not constitute a waiver of any
other covenant, condition or agreement herein contained, nor of any of Tenant's
rights hereunder. No waiver by Tenant of any breach
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shall operate as waiver of such covenant, condition or agreement, or operate a
waiver of such covenant, condition or agreement itself, or of any subsequent
breach thereof. No payment of Rent by Tenant or acceptance of Rent by Landlord
shall operate as a waiver of any breach or default by Tenant under this Lease.
No payment by Tenant or receipt by Landlord of a lesser amount than the monthly
installment of Rent herein stipulated shall be deemed to be other than a payment
on account of the earliest unpaid Rent, nor shall any endorsement or statement
on any check or communication accompanying a check for the payment of 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 Rent or to
pursue any other remedy provided in this Lease. No re-entry by Landlord, and no
acceptance by Landlord of keys from Tenant, shall be considered an acceptance of
a surrender of the Lease.
22.5 Right of Landlord to Cure Tenant's Default. If any Event of Default
shall occur, then Landlord may (but shall not be obligated to) make such payment
or do such act to cure the Event of Default, and charge the amount of the
expense thereof, together with interest thereon at the Interest Rate, to Tenant.
Such payment shall be due and payable upon demand; however, the making of such
payment or the taking of such action by Landlord shall not be deemed to cure
that Event of Default or to stop Landlord from the pursuit of any remedy to
which Landlord would otherwise be entitled. Any such payment made be Landlord on
Tenant's behalf shall bear interest until paid at the Interest Rate.
22.6 Late Payment. If Tenant fails to pay any Rent within five (5)
business days after such Rent becomes due and payable, Tenant shall pay to
Landlord a late charge of the greater of $100 or five percent (5%) of the
amount of such overdue Rent. In addition, any such late Rent payment shall bear
interest from the date such Rent became due and payable to the date of payment
thereof by Tenant at the Interest Rate. Such late charge and interest shall be
due and payable within two (2) days after written demand from Landlord.
22.7 Bankruptcy Termination Provision. This Lease shall automatically
terminate and expire, without the performance of any act or the giving of any
notice by Landlord, upon the occurrence of any of the following events: (1)
Tenant's admitting in writing its inability to pay its debts generally as they
become due, or (2) the commencement by Tenant of a voluntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or (3)
the entry of a decree or order for relief by a court having jurisdiction in the
premises in respect of Tenant in an involuntary case under the federal
bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, and the
continuance of any such decree or order unstayed and in effect for a period of
30 consecutive days, or (4) Tenant's making an assignment of all or a
substantial part of its property for the benefit of its creditors, or (5)
Tenant's seeking or consenting to or acquiescing in the appointment of, or the
taking of possession by, a receiver, trustee or custodian for all or a
substantial part of its property, or (6) the entry of a court order without
Tenant's consent, which order shall not be vacated, set aside or stayed within
30 days from the date of entry, appointment a receiver, trustee or custodian for
all or a substantial part of its property. The provisions of this Section shall
be construed with due recognition for the provisions of the federal bankruptcy
laws, where
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applicable, but shall be interpreted in a manner which results in a termination
of this Lease in each and every instance, and to the fullest extent, that such
termination is permitted under the federal bankruptcy laws, it being of prime
importance to the Landlord to deal only with tenants who have, and continue to
have, a strong degree of financial strength and financial stability.
22.8 Landlord Default. If Landlord shall fail to keep or perform any of
its obligations under this Lease, then Tenant may (but shall not be obligated to
do so) upon the continuance of such failure on Landlord's part for twenty (20)
days after Landlord's receipt of notice from Tenant specifying the failure (or,
in the case of any such failure which cannot with due diligence be cured within
twenty (20) days, within such additional period, if any, as may be reasonably
required by Landlord to cure such failure with due diligence), and without
waiving or releasing Landlord from any obligation, make such payment or perform
such obligation and all sums so paid by Tenant and all necessary and incidental
cost and expenses, including reasonable attorney's fees paid to independent
legal counsel, incurred by Tenant in making such payment or performing such
obligation, together with interest thereon at the Interest Rate from the date of
payment, shall be paid by Landlord to Tenant on demand, and if not so paid by
Landlord, Tenant shall have the right to pursue any legal remedies available to
it to collect payment, but shall not be entitled to offset such payment against
Rent thereafter payable under this Lease. If Landlord commits a default, Tenant
may pursue any remedies given in this lease or under law.
ARTICLE 23
MORTGAGES
23.1 Subordination. This Lease is subject and subordinate to all ground
or underlying leases and to any Mortgage(s) which may now or hereafter affect
such leases or the Land and to all renewals, modifications, consolidations,
replacements and extensions thereof. This subordination shall be self-operative;
however, in confirmation thereof, Tenant shall execute within one (1) week any
instrument that Landlord or any Mortgagee may request confirming such
subordination. Notwithstanding the foregoing, before any foreclosure sale under
a Mortgage, the Mortgagee shall have the right to subordinate the Mortgage to
this Lease, and, in the event of a foreclosure, this Lease may continue in full
force and effect and Tenant shall attorn to and recognize as its landlord the
purchaser of Landlord's interest under this Lease. Tenant shall, upon the
request of a Mortgagee or purchaser at foreclosure, execute, acknowledge and
deliver any instrument that has for its purpose and effect the subordination of
the lien of any Mortgagee to this Lease or Tenant's attornment to such
Purchaser.
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23.2 Mortgagee Protection. Tenant agrees to give any Mortgagee by
certified mail, return receipt requested, a copy of any notice of default served
upon Landlord, provided that before such notice Tenant has been notified in
writing of the address of such Mortgagee. Tenant further agrees that if Landlord
shall have failed to cure such default within the time provided for in this
Lease, then Mortgagee shall have an additional thirty (30) days within which to
cure such default; provided, however, that if such default cannot be reasonably
cured within that time, then such Mortgagee shall have such additional time as
may be necessary to cure such default so long as Mortgagee has commenced and is
diligently pursuing the remedies necessary to cure such default (including,
without limitation, the commencement of foreclosure proceedings, if necessary),
in which event this Lease shall not be terminated or Rent abated while such
remedies are being so diligently pursued. In the event of the sale of the Land
or the Building, by foreclosure or deed in lieu thereof, the Mortgagee or
purchaser at such sale shall be responsible for the return of the Security
Deposit only to the extent that such Mortgagee or purchaser actually received
the Security Deposit.
23.3 Modification Due to Financing. If, in connection with obtaining
construction or permanent financing for the Premises, the Building or the Land,
any lender (or Mortgagee) shall request reasonable modifications of this Lease
as a condition to such financing, Tenant shall promptly execute a modification
of this Lease, provided such modifications do not materially increase the
financial obligations of Tenant hereunder or materially adversely affect the
leasehold interest hereby created or Tenant's reasonable use and enjoyment of
the Premises. Tenant and any Guarantor shall each, prior to execution and
throughout the Term, upon request from time to time, provide such financial
information and documentation about itself to Landlord or Mortgagee as may be
requested.
ARTICLE 24
SURRENDER; HOLDING OVER
24.1 Surrender of the Premises. Tenant shall peaceably surrender the
Premises to Landlord on the Expiration Date or earlier termination of this
Lease, in broom-clean condition and in as good condition as when Tenant took
possession, including, without limitation, the repair of any damage to the
Premises caused by the removal of any of Tenant's personal property or trade
fixtures from the Premises, except for reasonable wear and tear and loss by fire
or other casualty not caused by Tenant or its Agents. Any of Tenant's personal
property left on or in the Premises, the Building, the Land or the Common Area
after the Expiration Date or earlier termination of this Lease shall be deemed
to be abandoned, and, at Landlord's option, title shall pass to Landlord under
this Lease.
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24.2 Holding Over. In the event that Tenant shall not immediately
surrender the Premises to Landlord on the Expiration Date or earlier termination
of this Lease, Tenant shall be deemed to be a month to month tenant upon all of
the terms and provisions of this Lease, except the monthly Basic Rent shall be
150% the monthly Basic Rent in effect during the last month of the Term.
Notwithstanding the foregoing, if Tenant shall hold over after the Expiration
Date or earlier termination of this Lease, and Landlord shall desire to regain
possession of the Premises, then Landlord may forthwith re-enter and take
possession of the Premises with due process, or by any legal process.
ARTICLE 25
QUIET ENJOYMENT
Landlord covenants that if Tenant shall pay Rent and perform all of the
terms and conditions of this Lease to be performed by Tenant, Tenant shall
during the Term peaceably and quietly occupy and enjoy possession of the
Premises without molestation or hindrance by Landlord or any party claiming
through or under Landlord, subject to the provisions of this Lease and any
Mortgage to which this Lease is subordinate and easements, conditions and
restrictions of record affecting the Land.
ARTICLE 26
TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS
26.1 Definition. As used in this Lease, the term "Hazardous Material"
means any flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "infectious wastes," "hazardous materials" or "toxic substances" now or
subsequently regulated under any federal, state, or local laws, regulation or
ordinances including, without limitation, oil, petroleum-based products, paints,
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCBs and similar compounds, and
including any different products and materials which are subsequently found to
have adverse effects on the environmental or the health and safety of persons.
26.2 General Prohibition. Tenant and Landlord certify that they shall
not generate, use, store or dispose of any Hazardous Materials in or about the
Premises, the Building or the Land. Landlord, to the best of its knowledge and
belief, covenants that the Premises and the Building do not contain any
Hazardous Materials and agrees not to bring into the Premises or Building any
Hazardous Materials. Tenant, to the best of its knowledge and belief, covenants
that the Premises do not contain any Hazardous Materials and agrees not to bring
into the Premises any Hazardous Materials. The covenants set forth in this
paragraph shall survive the expiration or earlier termination of the Lease term.
Notwithstanding the foregoing, the parties recognize and acknowledge that they
or their agents may use and store within the Building and, as to Tenant, the
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Premises, reasonable quantities of customary office cleaning supplies; provided
such items are stored, used and disposed of in accordance with applicable
federal, state or local law. Tenant and Landlord shall indemnify, defend and
hold each other harmless from and against any and all actions (including,
without limitation, remedial or enforcement actions of any kind, administrative
or judicial proceedings, and orders or judgments arising out of or resulting
therefrom), costs, claims, damages (including, without limitation, punitive
damages), expenses (including, without limitation, attorneys', consultants' and
experts' fees, court costs and amounts paid in settlement of any claims or
actions), fines, forfeitures or other civil, administrative or criminal
penalties, injunctive or other relief (whether or not based upon personal
injury, property damage, or contamination of, or adverse effects upon, the
environment, water tables or natural resources), liabilities or losses arising
from a breach of this prohibition by Tenant, its Agents or sublessees or
assignees.
26.3 Notice. In the event that Hazardous Materials are discovered upon,
in, or under the Premises, the Building or the Land, and the governmental agency
or entity having jurisdiction over the Premises, the Building or the Land
requires the removal of such Hazardous Materials, Tenant shall be responsible
for removing those Hazardous Materials arising out or related to the use or
occupancy of the Premises by the Tenant or its Agents, affiliates, sublessees or
assignees but not those of its predecessors. Notwithstanding the foregoing,
Tenant shall not take any remedial action in or about the Premises, the Building
or the Land, without first notifying Landlord of Tenant's intention to do so and
affording Landlord the opportunity to protect Landlord's interest with respect
thereto. Tenant immediately shall notify Landlord in writing of: (i) any spill,
release, discharge or disposal of any Hazardous Material in, on or under the
Premises, the Building, the Land or any portion thereof, (ii) any enforcement,
cleanup, removal, or other governmental or regulatory action instituted,
contemplated, or threatened (if Tenant has notice thereof) pursuant to any
Hazardous Materials Laws; (iii) any claim made or threatened by any person
against Tenant, the Premises, the Building or the Land relating to damage,
contribution, cost recovery, compensation, loss or injury resulting from or
claimed to result from any Hazardous Materials in, on, under or about or removed
from the Premises, the Building or the Land, including any complaints, notices,
warnings, reports or asserted violations in connection therewith. Tenant also
shall supply to Landlord as promptly as possible, and in any event within five
(5) business days after Tenant first receives or sends the same, copies of all
claims, reports, complaints, notices, warnings or asserted violations relating
in any way to the Premises, the Building, the Land or Tenant's use or occupancy
thereof
26.4 Survival. The respective rights and obligations of Landlord and
Tenant under this Article 26 shall survive the expiration or earlier termination
of this Lease.
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ARTICLE 27
MISCELLANEOUS
27.1 No Representations by Landlord. Tenant acknowledges that neither
Landlord or its Agents nor any broker has made any representation or promise
with respect to the Premises, the Building, the Land or the Common Area, except
as herein expressly set forth, and no rights, privileges, easements or licenses
are acquired by Tenant except as herein expressly set forth. Tenant, by taking
possession of the Premises shall accept the Premises and the Building "AS IS,"
and such taking of possessions shall be conclusive evidence that the Premises
and the Building are in good and satisfactory conditions at the time of such
taking of possession, subject to such punchlist items as are noted by Tenant and
Landlord at occupancy.
27.2 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture or between Landlord and
Tenant, or to create any other relationship between Landlord and Tenant other
than that of landlord and tenant.
27.3 Brokers. Landlord recognizes Broker(s) as the sole broker(s)
procuring this Lease and shall pay Broker(s) a commission therefor pursuant to a
separate agreement between Broker(s) and Landlord. Landlord and Tenant each
represent and warrant to the other that it has not employed any broker, agent or
finder other than Broker(s) relating to this Lease. Landlord shall indemnify and
hold Tenant harmless, and Tenant shall indemnify and hold Landlord harmless,
from and against any claim for brokerage or other commission arising from or out
of any breach of the indemnitor's representation and warranty.
27.4 Estoppel Certificate. Tenant shall, without charge, at any time
and from time to time, within five (5) business days after request therefor by
Landlord, Mortgagee, any purchaser of the Land or the Building or any other
interested person, execute, acknowledge and deliver to such requesting party a
written estoppel certificate certifying, as of the date of such estoppel
certificate, the following: (i) that this Lease is unmodified and in full force
and effect as modified and setting forth such modifications); (ii) that the Term
has commenced (and setting forth the Commencement date and Expiration Date);
(iii) that Tenant is presently occupying the Premises; (iv) the amounts of Base
Rent and Additional Rent currently due and payable by Tenant; (v) that any
Alterations required by the Lease to have been made by Landlord have been made
to the satisfaction of Tenant; (vi) that there are no existing set-offs,
charges, liens, claims or defenses against the enforcement of any right
hereunder, including, without limitation, Basic Rent or Additional Rent (or, if
alleged, specifying the same in detail); (vii) that no Basic Rent (except the
first installment thereof) has been paid more than thirty (30) days in advance
of its due date; (viii) that Tenant has no knowledge of any then uncured default
by Landlord of its obligations under this Lease (or, if Tenant has such
knowledge, specifying the same in detail); (ix) that Tenant is not in default;
(x) that the address to which notices to Tenant should be sent is as set forth
in the Lease (or, if not specifying the correct address); and (xi) any other
certifications requested by Landlord. In addition, within five (5) business days
after request by Landlord, Tenant shall deliver to Landlord financial statements
of Tenant for its most recently ended fiscal year and interim unaudited
financial statements for its most recently ended quarter.
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27.5 Waiver of Jury Trial. Tenant hereby waives trial by jury in any
action, proceeding or counterclaim brought by Landlord against Tenant with
respect to any matter whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant hereunder or Tenant's use or
occupancy of the Premises. In the event Landlord commences any proceedings for
nonpayment of Rent, Tenant shall not interpose any counterclaims. This shall
not, however, be construed as a waiver of Tenant's right to assert such claims
in any separate action brought by Tenant.
27.6 Notices. All notice or other communications hereunder shall be in
writing and shall be deemed duly given if delivered in person or upon the
earlier of receipt, if mailed by certified or registered mail, or three (3) days
after certified or registered mailing, return receipt requested, postage
prepaid, addressed and sent, if to Landlord to Landlord's Address specified in
Section 1.14 or if to Tenant to Tenant's Address specified in Section 1.15.
Landlord and Tenant may from time to time by written notice to the other
designate another address for receipt of future notices.
27.7 Invalidity of Particular Provisions. If any provisions of this
Lease or the application thereof to any person or circumstances shall to any
extent by invalid or unenforceable, the remainder of this Lease, or the
application of such provision to persons or circumstances other than those to
which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall be valid and be enforced to the full extent
permitted by law.
27.8 Gender and Number. A11 terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number or gender as the context may require,
27.9 Benefit and Burden. Subject to the provisions of Article 11 and
except as otherwise expressly provided, the provisions of this Lease shall be
binding upon, and shall inure to the benefit of, the parties hereto and each of
their respective representatives, heirs, successors and assigns. Landlord may
freely and fully assign its interest hereunder.
27.10 Entire Agreement. This Lease (which includes the Exhibits and
Rider attached hereto) contains and embodies the entire agreement of the parties
hereto, and no representations, inducements or Agreements oral or otherwise,
between the parties not contained in this Lease shall be of any force or effect.
This Lease (other than the Rules and Regulations, which may be changed from time
to time as provided herein) may not be modified, changed or terminated in whole
or in part in any manner other than by an agreement in writing duly signed by
Landlord and Tenant.
27.11 Authority.
(i) If Tenant signs as a corporation, the person executing
this Lease on behalf of Tenant hereby represents and warrants that Tenant is a
duly formed and validly existing corporation, in good standing, qualified to do
business in the Commonwealth of Virginia, that the
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corporation has full power and authority to enter into the Lease and that he or
she is authorized to execute this Lease on behalf of the corporation.
(ii) If Landlord signs as a corporation, the person executing
this Lease on behalf of Landlord hereby represents and warrants that Landlord is
a duly formed and validly existing corporation, in good standing, qualified to
do business in the Commonwealth of Virginia, that the corporation has full power
and authority to enter into the Lease and that he or she is authorized to
execute this Lease on behalf of the corporation.
(iii) If Tenant signs as a partnership, the person executing
this Lease on behalf of Tenant hereby represents and warrants that Tenant is a
duly formed, validly existing partnership qualified to do business in the
Commonwealth of Virginia, that the partnership has full power and authority to
enter into this Lease, and that he or she is authorized to execute this Lease on
behalf of the partnership.
(iv) If Landlord signs as a partnership, the person executing
this Lease on behalf of Landlord hereby represents and warrants that Landlord is
a duly formed, validly existing partnership qualified to do business in the
Commonwealth of Virginia, that the partnership has full power and authority to
enter into this Lease, and that he or she is authorized to execute this Lease on
behalf of the partnership.
27.12 Attorneys' Fees. If, as a result of any default of Landlord or
Tenant in its performance of any of the provisions of this Lease, the other
party uses the services of an attorney in order to secure compliance with such
provisions or recover damages therefor, or to terminate this Lease or evict
Tenant, the non-prevailing party shall reimburse the prevailing party upon
demand for any and all attorneys' fees and expenses so incurred by the
prevailing party.
27.13 Interpretation. This Lease is governed by the laws of the
Commonwealth of Virginia.
27.14 No Person Liability: Sale. Neither Landlord nor its Agents nor
Tenant or its Agents, whether disclosed or undisclosed, shall have any personal
liability under any provision of this Lease. In the event of a judgment in favor
of Tenant which remains unpaid, Tenant's rights of redress, execution and levy
shall be limited to the equity of Landlord in the Building as described in
Article 1 hereof. In the event that the original landlord hereunder, or any
successor owner of the Building, shall sell or convey the Building, all
liabilities and obligations on the part of the original Landlord, or such
successor owner, under this Lease occurring thereafter shall terminate as of the
day of such sale, and thereupon all such liabilities and obligations shall be
binding on the new owner. Tenant agrees to attorn to such new owner. Any
successor to Landlord's interest shall not be bound by (i) any payment of Basic
Rent or Additional Rent for more than one (1) month in advance, except for the
payment of the first installment of First Year Basic Rent or (ii) as to any
Mortgagee or any purchaser at foreclosure, any amendment or modification of this
Lease made without the consent of such Mortgagee.
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27.15 Time of the Essence. Time is of the essence as to Tenant's and as
to the initial delivery of possession, Landlord's obligations contained in this
Lease.
27.16 Force Majeure. Except for Tenant's obligations to pay Rent under
this Lease, neither Landlord nor Tenant shall be required to perform any of its
obligations under this Lease, nor shall such party be liable for loss or damage
for failure to do so, nor shall the other party thereby be released from any of
its obligations under this Lease, where such failure by the non-performing party
arises from or through acts of God, strikes, lockouts, labor difficulties,
explosions, sabotage, accidents, riots, civil commotions, acts of war, results
or any warfare or warlike conditions in this or any foreign country, fire or
casualty, legal requirements, energy shortage or other causes beyond the
reasonable control of the non-performing party, unless such loss or damage
results from the willful misconduct or gross negligence of the non-prevailing
party.
27.17 Headings. Captions and headings are for convenience of reference
only.
27.18 Memorandum of Lease. Tenant shall at the request of Landlord,
execute and deliver a memorandum of lease in recordable form. Tenant shall not
record such a memorandum of this Lease without Landlord's consent. In the event
Tenant requests recordation of a memorandum of this Lease, Tenant shall be
obligated to pay all costs, fees and taxes, if any, associated with such
recordation. In the event Landlord elects to record a memorandum of this Lease,
Landlord shall be obligated to pay all costs, fees and taxes, if any, associated
with such recordation.
27.19 Landlord's Relocation Option. At any time during the Term,
Landlord shall have the option to relocate Tenant, at no direct cost of Tenant,
to space comparable to the Premises elsewhere in the Building, provided Landlord
gives Tenant three (3) months' written notice. Upon relocation, such new space
shall be deemed to be the "Premises" hereunder, and Tenant's Proportionate Share
shall be recalculated by Landlord to equal that fraction, the numerator of which
is the rentable square footage of the Premises and the denominator of which is
the rentable square footage of the Building (as reasonably determined by
Landlord).
27.20 Effectiveness. The furnishing of the form of this Lease shall not
constitute an offer and this Lease shall become effective upon and only upon its
execution by and delivery to each party hereto.
27.21 Expansion Option. Tenant shall have the one time First Right of
Refusal on approximately 2,063 square feet outlined in Exhibit A-3. Upon receipt
of a bona fide third party offer Landlord shall submit the terms and conditions
of that offer to Tenant. Tenant shall then have two (2) business days to accept
the terms and conditions of that offer in writing to Landlord. If accepted,
Tenant must execute a lease amendment within five (5) business days after
receipt of said amendment from Landlord. If Tenant rejects the offer or does not
respond to the offer all rights under this paragraph shall cease. In the event
Tenant exercises its option, Landlord agrees to provide an opening between the
premises and the expansion space. The said opening shall be approximately six
feet wide and standard door height.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under
seal as of the Date of Lease.
LANDLORD:
ATTEST/WITNESS: 4501 ▇▇▇▇, ▇.▇.
---------------
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- ---------------------------
Date: 9/12/95 Date: 9/12/95
-------------------------- ---------------------------
ATTEST/WITNESS: TENANT:
DIDAX L.L.C.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------- ---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇
-------------------------- ---------------------------
Date: 9/11/95 Date: 9/11/95
-------------------------- ---------------------------
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EXHIBIT A-1
The ▇▇▇▇▇▇ Building
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[MAP OF THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇]
▇▇
▇▇▇▇▇▇▇ ▇-▇
[MAP OF THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇]
▇▇
▇▇▇▇▇▇▇ ▇-▇
[MAP OF THE ▇▇▇▇▇▇ BUILDING]
45
EXHIBIT B
(Work Agreement)
Landlord shall clean the carpet, finish and paint all drywall as needed in the
same color now used and shall repair all holes in the modular wall panels.
Landlord will also provide a microwave oven and a standard sized refrigerator.
Tenant shall otherwise accept the Premises in "as-is" condition.
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EXHIBIT C
to the Lease Agreement between
4501 ▇▇▇▇, ▇.▇., as Landlord, and
DIDAX, L.L.C., as Tenant.
Rules and Regulations - __________________
The following rules and regulations have been formulated for the safety
and well-being of all the tenants of the Building and become effective upon
occupancy. Strict adherence to these rules and regulations is necessary to
guarantee that each and every tenant will enjoy a safe and unannoyed occupancy
in the Building. Any repeated or continuing violation of these rules and
regulations by Tenant after notice from Landlord, shall be sufficient cause for
termination of this Lease at the option of Landlord.
Landlord may, upon request by any tenant, waive the compliance by such
tenant of any of the foregoing rules and regulations provided that (i) no
waiver shall be effective unless signed by Landlord or Landlord's authorized
agent; (ii) any such waiver shall not relieve such tenant from the obligation
to comply with such rule or regulation in the future unless expressly consented
to by Landlord, and (iii) no waiver granted to any tenant shall relieve any
other tenant from the obligation of complying with the foregoing rules and
regulations unless such other tenant has received a similar waiver in writing
from Landlord.
1. The sidewalks, entrances, passages, courts, vestibules, or
stairways, or other parts of the Building not occupied by any tenant shall not
be constructed or encumbered by any tenant or used for any purpose other than
ingress and egress to and from any tenant's Premises. Landlord shall have the
right to control and operate the public portions of the Building, and the
facilities furnished for the common use of the tenants, in such manner as
Landlord deems best for the benefit of the tenants generally. No tenant shall
permit the visit to its Premises of persons in such numbers or under such
conditions as to interfere with the use and enjoyment by other tenants of the
entrances, corridors, elevators, and other public portions or facilities of the
Building.
2. No signs, awnings or other projections shall be attached to the
outside walls of any building without the prior written consent of Landlord. No
drapes, blinds, shades or screens shall be attached to or hung in, or used in
connection with, any window or door of the Premises, without the prior consent
of Landlord. Such signs, awnings, projections, curtains, blinds, screens or
other fixtures must be of a quality, type design and color, and attached in the
manner approved by Landlord.
3. No show cases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor placed in any interior
Common Area without the prior written consent of Landlord.
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4. The water and wash closets and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who or whose servants, employees, agents, visitors, or licensees, shall have
caused the same.
5. There shall be no marking, painting, drilling into or in anyway
defacing any part of the Premises or the Building. No boring, cutting or
stringing or wires shall be permitted. No tenant shall construct, maintain, use
or operate within its Premises or elsewhere within or on the outside of the
Building, or any electrical device, wiring or apparatus in connection with a
loud speaker system or other sound system.
6. Tenant will fill out move-in/move-out sheets and will return such
sheets signed and dated within ten (10) days of moving in or out of the
Premises.
7. No animals, birds or pets of any kind shall be brought into or kept
in or about the Premises, and no cooking shall be done or permitted by any
tenant on its Premises except for a tenant's employee's own use. No tenant shall
cause or permit any unusual or objectionable odors to be produced or permeate
from its Premises.
8. No tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interface with occupants of this or any
neighboring building or Premises or with any person having business with such
occupants. No tenant shall throw anything out of the doors or windows or down
the corridors or stairs.
9. No inflammable, combustible, or explosive fluid, chemical or
radioactive substance shall be brought or kept upon the Premises.
10. No additional locks or bolts of any kind shall be placed upon any
of the doors, or windows, by any tenant, nor shall any changes be made in
existing locks or the mechanism thereof without prior approval from Landlord.
Each tenant shall, upon termination of its tenancy, restore to Landlord all keys
of stores, offices, storage, and toilet rooms either furnished to, or otherwise
procured by such tenant, and in the event of the loss of any keys so furnished
such tenant shall pay to Landlord the cost of replacement thereof
11. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place during the hours
which Landlord or its Agent may determine from time to time. Landlord reserves
the right to inspect all freight to be brought into the Premises and to exclude
from the Premises all freight which violates any of these Rules and Regulations
or the Lease of which these Rules and Regulations are a part.
12. Any person employed by any tenant to do janitorial work within its
Premises must obtain Landlord's consent and such person shall, while in the
Building and outside of the Premises, comply with all instructions issued by the
superintendent of the Building. No tenant
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shall engage or pay any employees on its Premises, except those actually working
for such tenant on its Premises.
13. No tenant shall purchase spring water, ice, coffee, soft drinks,
towels, or other like service, from any company or persons whose repeated
violations of the Regulations have caused, in Landlord's opinion, a hazard or
nuisance to the Building and/or its occupants. Landlord shall provide written
notice of all such companies.
14. Landlord reserves the right to exclude from the Building at all
times any person who is not known or does not properly identify himself to the
Building management. Landlord may at its option require all persons admitted to
or leaving the Building between the hours of 6 p.m. and 8 a.m., Monday through
Friday, and at all times on Saturday, Sunday, and legal holidays, to register.
Each tenant shall be responsible for all persons for whom he authorizes entry
into or exit out of the Building and shall be liable to Landlord for all acts of
such persons.
15. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
16. No tenant shall occupy or permit any portion of its Premises to be
used or occupied for the possession, storage, manufacture, or sale or liquor,
narcotics, tobacco in any form, or as a ▇▇▇▇▇▇ or manicure shop, or as an
employment bureau, unless said Tenant's lease expressly grants permission to do
so. No Tenant shall engage or pay any employees on its Premises, except those
actually working for such Tenant on said Premises, nor advertise for laborers
giving an address at said Premises.
17. Landlord's employees shall not perform any work for Tenant or do
anything outside of their regular duties, unless under special instruction from
the management of the Building.
18. Canvassing, soliciting, and peddling on the Premises is prohibited
and each Tenant shall cooperate to prevent the same.
19. No water cooler, plumbing or electrical fixtures shall be installed
by any Tenant without the prior written consent of Landlord.
20. There shall not be used in any space, or in the public halls of the
Building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
21. Where carpet is installed over access plates to underfloor ducts,
Tenant will be required, at Tenant's expense, to provide access to said access
plates when necessary.
22. Mats, trash, or other objects shall not be placed in the public
corridors.
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23. Tenant shall not overload the floors or exceed the maximum floor
weight limits of the Premises.
24. If Landlord designates a certain portion of parking area for
employee parking, Tenant covenants that it will require its employees to park in
such area to the extent of spaces available. Landlord shall not be responsible
for enforcing Tenant's parking rights against any third parties.
25. Tenant agrees to conduct any vehicle or machine repair, painting,
or similar work only inside the Premises.
26. Tenant agrees not to operate any machinery in the Premises which
may cause vibration or damage to the Premises; not to use a loudspeaker which
can be heard outside the Premises, or to extend curb service to customers.
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