Exhibit 10.3
DEED OF LEASE AGREEMENT
THIS DEED OF LEASE AGREEMENT (hereinafter referred to as "Lease"), made
this __________ day of April, 1997, by and between Norfolk Commerce Center
Limited Partnership, a limited partnership organized and existing under the laws
of The Commonwealth of Virginia, having an address c/o Cambridge Asset
Advisors, 000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, (hereinafter
referred to as the "Landlord"), and Boron, XxXxxx & Associates, Inc., a
corporation organized and existing under the laws of The State of Delaware,
having an address at 5365 Xxxxx Xxxx Road, Suite (hereinafter referred to as the
"Tenant").
WITNESSETH, THAT FOR AND IN CONSIDERATION of the mutual entry into this
Lease by the parties hereto, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by each party hereto, the
Landlord hereby leases to the Tenant and the Tenant hereby leases from the
Landlord all of that real property, situated and lying in the City of Norfolk,
Virginia, which consists of the space (Suite F containing 4,660 square feet of
floor area) outlined and attached hereto as Exhibit A (hereinafter referred to
as the "Premises") and located in a building (hereinafter referred to as the
"Building") at 0000 Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, (the Premises, the
remainder of the Building, such tract of land, other buildings thereon, and any
other buildings or improvements to be constructed thereon being hereinafter
referred to collectively as the "Property").
SUBJECT TO THE OPERATION AND EFFECT of any and all instruments and matters
of record or in fact.
UPON THE TERMS AND SUBJECT TO THE CONDITIONS which are hereinafter set
forth:
SECTION 1. TERM.
1.1. Length. This Lease shall be for a term of approximately One Hundred
Twenty Three (123) months (hereinafter referred to as the "Term") commencing on
/1/ (hereinafter referred to as the "Commencement Date", except that if the date
of such commencement is hereafter advanced or postponed by written agreement of
the parties hereto, the date to which it is advanced or postponed shall
thereafter be the "Commencement Date" for all purposes of the provisions of this
Lease), and expiring on the 30th day of June, 2007 (hereinafter referred to as
the "Termination Date"), except that if the date of such termination is
hereafter advanced or postponed by written agreement of the parties hereto, the
date to which it is advanced or postponed shall thereafter be the Termination
Date.
1.2. New Construction.
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/1/ the date first written above
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Taking of possession by Tenant shall be deemed conclusively to establish
that said buildings and other improvements have been completed in accordance
with the plans and specifications and that the Premises are in good and
satisfactory condition, as of when possession was so taken. Tenant acknowledges
that no representations as to the repair of the Premises have been made by
Landlord, unless such are expressly set forth in this Lease. After such
"Commencement Date" Tenant shall, upon demand, execute and deliver to Landlord a
letter of acceptance of delivery of the Premises. In the event of any dispute as
to substantial completion or work performed or required to be performed by
Landlord, the certificate of Landlord's architect or general contractor shall be
conclusive.
1.3. Surrender. The Tenant shall at its expense, at the expiration of the
Term or upon any earlier termination of this Lease, (a) promptly surrender to
the Landlord possession of the Premises (including any fixtures or other
improvements which, under the provisions of Section 5, are owned by the
Landlord) in good order and repair (ordinary wear and tear excepted) and broom
clean, (b) remove therefrom the Tenant's signs, goods and effects and any
machinery, trade fixtures and equipment used in conducting the Tenant's trade or
business and not owned by the Landlord, and (c) repair any damage to the
Premises or the Building caused by such removal.
1.4. Holding Over.
1.4.1. If the Tenant continues to occupy the Premises after the
expiration of the Term or any earlier termination of this Lease after obtaining
the Landlord's express, written consent thereto,
(a) such occupancy shall (unless the parties hereto otherwise
agree in writing) be deemed to be under a month-to-month tenancy, which shall
continue until either party hereto notifies the other in writing, by at least
thirty (30) days before the end of any calendar month, that the notifying party
elects to terminate such tenancy at the end of such calendar month, in which
event such tenancy shall so terminate;
(b) anything contained in the foregoing provisions of this
Section to the contrary notwithstanding, the rental payable for each such
monthly period shall equal one-twelfth (1/12) of the Base Rent and the
Additional Rent payable under the provisions of subsection 2.2 (calculated in
accordance with such provisions of subsection 2.2 as if this Lease had been
renewed for a period of twelve (12) full calendar months after such expiration
or earlier termination of the Term or such renewal); and
(c) such month-to-month tenancy shall be upon the same terms
and subject to the same conditions as those set forth in the provisions of this
Lease; provided, that if the Landlord gives the Tenant, by at least thirty (30)
days before the end of any calendar month during such month-to-month tenancy,
written notice that such terms and conditions (including any thereof relating to
the amount or payment of Rent) shall, after such month, be modified in any
manner specified in such notice, then such tenancy shall, after such month, be
upon the said terms and subject to the said conditions, as so modified.
1.4.2. If the Tenant continues to occupy the Premises after the
expiration of the Term or any earlier termination of this Lease without
obtaining the Landlord's express, written consent thereto, such occupancy shall
be on the same terms and subject to the same conditions as those set forth in
the provisions of paragraph 1.4.1., except that, anything contained in the
provisions of this Lease to the contrary notwithstanding, (a) the rental payable
during the period of such occupancy shall equal /2/ of the rental
which would be payable during such period under the provisions of subparagraph
1.4.1.(b), had the Tenant obtained the Landlord's express, written consent to
such occupancy, as aforesaid, and (b) nothing in the provisions of paragraph
1.4.1. or any other provision of this Lease shall be deemed in any way to alter
or impair the Landlord's right immediately to evict the Tenant or exercise its
other rights and remedies under the provisions
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/2/ one hundred seventy five percent (175%)
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of this Lease or applicable law on account of the Tenant's occupancy of the
Premises without having obtained such consent.
SECTION 2. RENT
2.1. Amount. As rent for the Premises (all of which is hereinafter
referred to collectively as "Rent"), the Tenant shall pay to the Landlord in
advance, without demand, deduction or set off, for the entire Term hereof, all
of the following:
2.1.1. Base Rent. In consideration of the Premises, Tenant covenants
and agrees to pay to Landlord a Base Rent each Lease Year in the amount set
forth in Exhibit D attached hereto and made a part hereof. This Base Rent shall
be paid in equal monthly installments on the first (1st) day of each month, in
advance, without demand, notice, offset or deduction, at such place as shall be
designated by Landlord, beginning on the Commencement Date. If the Commencement
Date is on a date other than the first (1st) day of the month, then the first
rent payment shall include a pro rata portion of such Base Rent and all other
payments provided for under this Lease for any part of the month prior to the
first (1st) full month of the lease term.
2.1.2. Lease Year. As used in the provisions of this Lease, the term
"Lease Year" means (a) the period commencing on the Commencement Date and
terminating on the first (1st) anniversary of the last day of the calendar month
containing the Commencement Date, and (b) each successive period of twelve (12)
calendar months thereafter during the Term.
2.1.3. Additional Rent. Additional rent (hereinafter referred to as
"Additional Rent") in the amount of any payment referred to as such in any
provision of this Lease which accrues while this Lease is in effect. Any
Additional Rent shall be payable to Landlord within thirty(30) days of demand
except as otherwise provided for herein.
2.2. Annual Operating Costs.
2.2.1. Definitions. As used herein, the term "Annual Operating
Costs" means the actual costs incurred by the Landlord in operating and
maintaining the Property during each calendar year of the Term. Such costs shall
include, by way of example rather than of limitation, (i) real property, front-
foot benefit, metropolitan district and other similar taxes or public or private
assessments (whether regular or special) levied against any or all of the
Property as applicable; (ii) charges or fees for, and taxes on, the furnishing
of water, sewer service, gas, fuel, electricity or other utility services to the
Property; (iii) costs of maintaining grounds, common areas and mechanical
systems of Buildings; (iv) all other costs of maintaining, repairing or
replacing any or all of the Building or the rest of the Property including a
reserve for asphalt, roof repairs and repainting; (v) charges or fees for any
necessary governmental permits; (vi) management fees, overhead and expenses
equal to five percent (5%) of the Rent for each Lease Year; (vii) premiums for
hazard, liability, workmens' compensation or similar insurance upon any or all
of the Property and any deductibles applicable therefor; (viii) costs arising
under service contracts with independent contractors; (ix) costs of any services
not provided by the Landlord to the Property on the date hereof but hereafter
provided by the Landlord in its prudent management of the Property; and (x) the
costs of any other items which, under generally accepted accounting principles
consistently applied from year to year with respect to the Property, constitute
operating or maintenance costs attributable to any or all of the Property and
(xi) the cost of tax appeals to the extent that such cost does not exceed the
amount of savings realized in each calendar year. Such costs shall not include
(i) the expense of principal and interest payments made by the Landlord pursuant
to the provisions of any mortgage or deed of trust covering the Property; (ii)
any deduction for depreciation of the Property taken on the Landlord's income
tax returns; or (iii) the cost of capital improvements made to the Property
.
2.2.2. Operating Costs Escalation. Tenant agrees to pay to Landlord,
as Additional Rent, Tenant's Pro-Rata Share (as hereinafter defined) of any
increase in Annual Operating Costs for any calendar year above Two and 20/100
Dollars ($2.20) per square foot (Tenant's "Operating
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Costs Escalation"). Tenant's "Pro-Rata Share" shall be equal to a fraction, the
numerator of which shall be the square feet of the Premises, and, except as
otherwise provided hereunder, the denominator of which shall be the total
leasable square feet in the Building and or the Property. As of the date of
execution of this Lease, Tenant's Pro-Rata s hare is 6.22% of the Building and
6.22% of the Property.
2.2.3. Landlord's right to estimate. Anything contained in the
foregoing provisions of this subsection to the contrary notwithstanding, the
Landlord may, at its discretion, (a) make from time to time during the Term a
reasonable estimate of the Tenant's Operating Costs Escalation which may become
due under such provisions for any calendar year, (b) require the Tenant to pay
to the Landlord for each calendar month during such year one twelfth (1/12) of
such estimate as Additional Rent, at the time and in the manner that the Tenant
is required hereunder to pay the monthly installment of the Base Rent for such
month, and (c) at the Landlord's reasonable discretion, increase or decrease
from time to time during such calendar year the amount initially so estimated
for such calendar year, all by giving the Tenant written notice thereof,
accompanied by a schedule setting forth in reasonable detail the expenses
comprising the Annual Operating Costs, as so estimated.
2.2.4. Computation. After the end of each calendar year during the
Term, the Landlord shall compute the total of the Annual Operating Costs
incurred during such calendar year, and shall allocate them in accordance with
each tenant's Pro-Rata share of the Property; provided, that anything contained
in the foregoing provisions of this subsection 2.2 to the contrary
notwithstanding, wherever the Tenant and/or any other tenant of space within the
Property has agreed in its lease or otherwise to provide any item of such
services partially or entirely at its own expense, or wherever in the Landlord's
judgment any such significant item of expense is not incurred with respect to or
for the benefit of all of the net rentable space within the Property, in
allocating the Annual Operating Costs pursuant to the foregoing provisions of
this subsection, the Landlord shall make an appropriate adjustment, using
generally accepted accounting principles, as aforesaid, so as to avoid
allocating to the Tenant or to such other tenant (as the case may be) those
Annual Operating Costs covering such services already being provided by the
Tenant or by such other tenant at its own expense, or to avoid allocating to all
of the net rentable space within the Property those Annual Operating Costs
incurred only with respect to a portion thereof, as aforesaid.
2.2.5. Payment of Operating Costs Escalation. Within one hundred
twenty (120) days after the expiration of each calendar year, Landlord shall
submit to Tenant a statement showing the actual Annual Operating Costs for such
preceding calendar year and Tenant's Pro-Rata share thereof. If such statement
shows that Tenant's Pro-Rata share of the actual Annual Operating Costs for such
preceding year exceeded Tenant's monthly payments of Operating Costs Escalation
for the preceding Calendar Year, then Tenant shall pay the total amount of such
deficiency to Landlord with the next payment of Base Rent due hereunder after
receipt of such statement. /3/
2.2.6. Proration. If only part of any calendar year falls within the
Term, the amount computed as Additional Rent for such calendar year under the
foregoing provisions of this subsection shall be prorated in proportion to the
portion of such calendar year falling within the Term (but the expiration of the
Term before the end of a calendar year shall not impair the Tenant's obligation
hereunder to pay such prorated portion of such Additional Rent for that portion
of such calendar year falling within the Term, which shall be paid on demand, as
aforesaid).
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/3/ Notwithstanding anything contained herein to the contrary, If such
statement reflects Tenant has made an overpayment, then Landlord shall
credit such overpayment against the next month's Rent.
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2.3. When due and payable.
2.3.1. The Base Rent for any Lease Year shall be due and payable in
twelve (12) consecutive, equal monthly installments, in advance, on the first
(1st) day of each calendar month during such Lease Year; provided, that the
first monthly installment of the Base Rent will be due and payable upon lease
execution.
2.3.2. Any Additional Rent accruing to the Landlord under any
provision of this Lease shall, except as is otherwise set forth herein, be due
and payable when the installment of the Base Rent next falling due after such
Additional Rent accrues and becomes due and payable, unless the Landlord makes
written demand upon the Tenant for payment thereof at any earlier time, in which
event such Additional Rent shall be due and payable at such time.
2.3.3. Each such payment shall be made promptly when due, without
any deduction or set off whatsoever, and without demand, failing which the
Tenant shall pay to the Landlord as Additional Rent, a late charge equaling
twenty percent (20%) of such payment. /4/
2.4. Where payable. The Tenant shall pay the Rent, in lawful currency of
the United States of America, to the Landlord by delivering or mailing it
(postage prepaid) to the Landlord's address which is set forth in Section 16, or
to such other address or in such other manner as the Landlord from time to time
specifies by written notice to the Tenant. Any payment made by the Tenant to
the Landlord on account of Rent may be credited by the Landlord to the payment
of any Rent then past due before being credited to Rent currently falling due.
Any such payment which is less than the amount of Rent then due shall constitute
a payment made on account thereof, the parties hereto hereby agreeing that the
Landlord's acceptance of such payment (whether or not with or accompanied by an
endorsement or statement that such lesser amount or the Landlord's acceptance
thereof constitutes payment in full of the amount of Rent then due) shall not
alter or impair the Landlord's rights hereunder to be paid all of such amount
then due, or in any other respect.
2.5. Tax on Lease. If federal, state or local law now or hereafter
imposes any tax, assessment, levy or other charge (other than any income,
inheritance or estate tax) directly or indirectly upon (a) the Landlord with
respect to this Lease or the value thereof, (b) the Tenant's use or occupancy of
the Premises, (c) the Base Rent, Additional Rent or any other sum payable under
this Lease, or (d) this transaction, then (except if and to the extent that such
tax, assessment, levy or other charge is included in the Annual Operating Costs)
the Tenant shall pay the amount thereof as Additional Rent to the Landlord upon
demand, unless the Tenant is prohibited by law from doing so, in which event the
Landlord may, at its election, terminate this Lease by giving written notice
thereof to the Tenant.
2.6. Security deposit.
2.6.1. Simultaneously with the entry into this Lease by the parties
hereto, the Tenant shall deposit with the Landlord the sum of Three Thousand One
Hundred Six and 67/100 Dollars ($3,106.67), which shall be retained by the
Landlord as security for the Tenant's payment of the Rent and performance of all
of its other obligations under the provisions of this Lease.
2.6.2. On the occurrence of an Event of Default, the Landlord shall
be entitled, at its sole discretion,
(a) to apply any or all of such sum in payment of (i) any
Rent then due and unpaid, (ii) any expense incurred by the Landlord in curing
any such Event of Default, and/or (iii) any damages incurred by the Landlord by
reason of such Event of Default (including, by way of example rather than of
limitation, that of reasonable attorneys' fees); and/or
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/4/ Notwithstanding anything contained herein to the contrary, Tenant shall
not incur any late fees until the rent has not been paid for five (5)
days past its due date.
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(b) to retain any or all of such sum to reimburse for any or all
damages suffered by the Landlord by reason of such Event of Default. If at any
time Landlord draws upon the security deposit in accordance with this section
Tenant upon demand agrees to immediately pay to Landlord an amount sufficient to
return the security deposit to the amount stated above.
2.6.3. On the termination of this Lease, any of such sum which is not so
applied or retained shall be returned to the Tenant within forty-five (45) days
of the Lease termination date.
2.6.4. Such sum shall not bear interest while being held by the Landlord
hereunder.
2.6.5. No Mortgagee (as that term is defined by the provisions of Section
12) or purchaser of any or all of the Property at any foreclosure proceeding
brought under the provisions of any Mortgage (as that term is defined by the
provisions of Section 12) shall (regardless of whether the Lease is at the time
in question subordinate to the lien of any Mortgage under the provisions of
Section 12 or otherwise) be liable to the Tenant or any other person for any
or all of such sum (or any other or additional security deposit or other payment
made by the Tenant under the provisions of this Lease), unless both (a) the
Landlord has actually delivered it in cash to such Mortgagee or purchaser, as
the case may be, and (b) it has been specifically identified, and accepted by
the Lender or such purchaser, as the case may be, as such and for such purpose.
SECTION 3. USE OF PREMISES.
3.1. The Tenant shall, continuously throughout the Term occupy and use the
Premises for and only for general office purposes.
3.2. In its use of the Premises and the remainder of the Property, the
Tenant shall not violate any applicable law, ordinance or regulation.
3.3. License.
3.3.1 The Landlord hereby grants to the Tenant a non-exclusive license
to use (and to permit its officers, directors, agents, employees and invitees to
use in the course of conducting business at the Premises),
(a) any and all elevators, common stairways, lobbies, common
hallways and other portions of the Building which, by their nature, are
manifestly designed and intended for common use by the occupants of the
Building, for pedestrian ingress and egress to and from the Premises and for any
other such manifest purposes; and
(b) any and all portions of the said tract of land on which the
Building is located (excluding that portion thereof which is improved by any
other building) which, by their nature, are manifestly designed and intended for
common use by the occupants of the Building and of any other improvements on
such tract, for pedestrian ingress and egress to and from the Premises and for
any other such manifest purposes; and
(c) any and all portions of such tract of land as from time to
time are designated (by striping or otherwise) by the Landlord for such purpose,
for the parking of automobiles.
3.3.2. Such license shall be exercised in common with the exercise
thereof by the Landlord, any tenant or owner of the building or any other
building located on such tract, and their respective officers, directors,
agents, employees and invitees, and in accordance with the Rules and Regulations
promulgated from time to time pursuant to the provisions of Section 11.
3.4. Signs. The Tenant shall have the right to erect from time to time
within the Premises such signs as it desires, in accordance with applicable law,
except that the Tenant shall not erect any sign within the Premises in any place
where such sign is visible primarily from the exterior of the Premises, unless
the Landlord has given its express, written consent thereto.
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3.5. Relocation of Tenant. The Landlord shall have the right from time to
time during the Term, at the Landlord's expense, to relocate the Premises from
their present location within the Building to another location within the
Building having at least the same floor area as that of the Premises as shown on
Exhibit A, provided that the Landlord gives the Tenant written notice of the
Landlord's intention to do so at least thirty (30) days before undertaking such
relocation. The Landlord shall, in such event, at the Landlord's expense,
install within the Premises as so relocated improvements of the same quality and
quantity as those theretofore made by the Tenant or the Landlord to the Premises
before such relocation, and on the completion of such installation shall cause
the Tenant's machinery, furniture, fixtures and equipment within the Premises
to be moved to the Premises as so relocated /5/. Upon the completion of such
relocation, this Lease shall automatically cease to cover the space constituting
the Premises immediately before such relocation, and shall automatically
thereafter cover the space to which the Premises have been relocated, as
aforesaid, all on the same terms and subject to the same conditions as those set
forth in the provisions of this Lease as in effect immediately before such
relocation, and all without the necessity of further action by either party
hereto; provided, that each party hereto shall, promptly upon its receipt of a
written request therefor from the other, enter into such amendment of this Lease
as the requesting party considers reasonably necessary to confirm such
relocation.
SECTION 4. INSURANCE AND INDEMNIFICATION.
4.1. Increase in risk.
4.1.1. The Tenant shall not do or permit to be done any act or thing
as a result of which either (a) any policy of insurance of any kind covering (i)
any or all of the Property or (ii) any liability of the Landlord in connection
therewith may become void or suspended, or (b) the insurance risk under any such
policy would (in the opinion of the insurer thereunder) be made greater; and
4.1.2. shall pay as Additional Rent the amount of any increase in
any premium for such insurance resulting from any breach of such covenant.
4.2. Insurance to be maintained by Tenant.
4.2.1. The Tenant shall maintain at its expense, throughout the
Term, insurance against loss or liability in connection with bodily injury,
death, property damage or destruction, occurring within the Premises or arising
out of the use thereof by the Tenant or its agents, employees, officers or
invitees, visitors and guests, under one or more policies of general public
liability insurance having such limits as to each as are reasonably required by
the Landlord from time to time, but in any event of not less than a total of Two
Million Dollars ($2,000,000.00) for bodily injury to or death of all persons or
property damage or destruction in any one occurrence, and (b) Fifty Thousand
Dollars ($50,000.00) Fire Legal Liability. Each such policy shall (a) name as
the insured thereunder the Tenant and the Landlord and Landlord's Agent (and, at
the Landlord's request, any Mortgagee) as additional insureds, (b) by its terms,
not be cancelable without at least thirty (30) days' prior written notice to the
Landlord (and, at the Landlord's request, any such Mortgagee), and (c) be issued
by any insurer of recognized responsibility licensed to issue such policy in the
Commonwealth of Virginia.
4.2.2. (a) At least five (5) days before the Commencement Date, the
Tenant shall deliver to the Landlord a certificate of each such policy, and (b)
at least thirty (30) days before any such policy expires, the Tenant shall
deliver to the Landlord an original or a signed duplicate copy of a replacement
policy therefor; provided, that so long as such insurance is otherwise in
accordance with the provisions of this Section, the Tenant may carry any such
insurance under a blanket policy covering the Premises for the risks and in the
minimum amounts specified in paragraph 4.2.1, in which event the Tenant shall
deliver to the Landlord two (2) insurer's certificates therefor in lieu of an
original or a copy thereof, as aforesaid.
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/5/ during non-ordinary business hours (normal business hours being deemed
Monday through Friday from 8:30 a.m. to 5:30 p.m.)
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4.3. Insurance to be maintained by Landlord. The Landlord shall maintain
throughout the Term all-risk insurance upon the Building, including as needed
but not limited to Personal Property, Loss of Rents, Glass, Boiler and
Machinery, General Liability and Umbrella Liability in at least such amounts and
having at least such forms of coverage as are required from time to time by the
Landlord's lender. The cost of the premiums for such insurance and of each
endorsement thereto and of any applicable deductibles therefor shall be deemed,
for purposes of the provisions of Section 2, to be a cost of operating and
maintaining the Property.
4.4. Waiver of subrogation. If either party hereto is paid any proceeds
under any policy of insurance naming such party as an insured, on account of any
loss, damage or liability, then such party hereby releases the other party
hereto, to and only to the extent of the amount of such proceeds, from any and
all liability for such loss, damage or liability, notwithstanding that such
loss, damage or liability may arise out of the negligent or intentionally
tortious act or omission of the other party, its agents or employees; provided,
that such release shall be effective only as to a loss, damage or liability
occurring while the appropriate policy of insurance of the releasing party
provides that such release shall not impair the effectiveness of such policy or
the insured's ability to recover thereunder. Each party hereto shall use
reasonable efforts to have a clause to such effect included in its said
policies, and shall promptly notify the other in writing if such clause cannot
be included in any such policy.
4.5. Liability of parties. Except if and to the extent that such party is
released from liability to the other party hereto pursuant to the provision of
subsection 4.4.
4.5.1. the Landlord (a) shall be responsible for, and shall
indemnify and hold harmless the Tenant against and from any and all liability
arising out of, any injury to or death of any person or damage to any property,
occurring anywhere upon the Property, if, only if and to the extent that such
injury, death or damage is proximately caused by the grossly negligent or
intentionally tortious act or omission of the Landlord or its agents, officers
or employees, but (b) shall not be responsible for or be obligated to indemnify
or hold harmless the Tenant against or from any liability for any such injury,
death or damage occurring anywhere upon the Property (including the Premises),
(i) by reason of the Tenant's occupancy or use of the Premises or any other
portion of the Property, or (ii) because of fire, windstorm, act of God or other
cause unless solely caused by such gross negligence or intentionally tortious
act or omission of the Landlord, as aforesaid; and
4.5.2. subject to the operation and effect of the foregoing
provisions of this subsection, the Tenant shall be responsible for, and shall
defend, indemnify and hold harmless the Landlord against and from, any and all
liability or claim of liability (including without limitation reasonable
attorney's fees) arising out of any injury to or death of any person or damage
to any property, occurring within the Premises, or if caused by Tenant, its
employees, agents or invitees, on the Property.
SECTION 5. IMPROVEMENTS TO PREMISES.
5.1. By Landlord.
5.1.1. Landlord shall provide Tenant with an allowance of up to
$7,000.00 ("Improvement Allowance") for tenant improvements to be constructed in
accordance with Exhibit B attached hereto and incorporated herein by reference.
All costs in excess of the Improvement Allowance shall be at Tenant's cost. In
the event there is a default in the payment of Base Rent or any additional rent
hereunder, Tenant shall pay to Landlord, as additional rent hereunder, the full
amount of the unamortized cost of the Improvement Allowance amortized at a rate
of ten percent (10%) per annum over the Lease term.
5.1.2.
5.1.3. the Landlord shall use its reasonable efforts to complete
such improvements by the date on which the Tenant is entitled to occupy the
Premises pursuant to this Lease, but shall
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have no liability to the Tenant hereunder if prevented from doing so by reason
of any (a) strike, lock-out or other labor troubles, (b) governmental
restrictions or limitations, (c) failure or shortage of electrical power, gas,
water, fuel oil, or other utility or service, (d) riot, war, insurrection or
other national or local emergency (e) accident, flood, fire or other casualty,
(f) adverse weather condition, (g) other act of God, (h) inability to obtain a
building permit or a certificate of occupancy, or (i) shortage of materials or
labor, or (j) other cause similar or dissimilar to any of the foregoing and
beyond the Landlord's reasonable control. In such event, (a) the Commencement
Date shall be postponed for a period equaling the length of such delay, (b) the
Termination Date shall be determined pursuant to the provisions of subsection
1.1 by reference to the Commencement Date as so postponed, and (c) the Tenant
shall accept possession of the Premises within three (3) days after such
completion.
5.2. By Tenant. The Tenant shall not make any alteration, addition or
improvement to the Premises without first obtaining the Landlord's written
consent thereto. If the Landlord consents to any such proposed alteration,
addition or improvement, it shall be made at the Tenant's sole expense (and
the Tenant shall hold the Landlord harmless from any cost incurred on account
thereof), and at such time and in such manner as not unreasonably to interfere
with the use and enjoyment of the remainder of the Property by any tenant
thereof or other person.
5.3. Mechanics' lien. The Tenant shall (a) immediately after it is filed
or claimed, bond or have released any mechanics', materialman's or other lien
filed or claimed against any or all of the Premises, the Property, or any other
property owned or leased by the Landlord, by reason of labor or materials
provided for the Tenant or any of its contractors or subcontractors (other than
labor or materials provided by the Landlord pursuant to the provisions of
subsection 5.1), or otherwise arising out of the Tenant's use or occupancy of
the Premises or any other portion of the Property, and (b) defend, indemnify and
hold harmless the Landlord against and from any and all liability, claim of
liability or expense (including, by way of example rather than of limitation,
that of reasonable attorneys' fees) incurred by the Landlord on account of any
such lien or claim.
5.4. Fixtures. Any and all improvements, repairs, alterations and all
other property attached to, used in connection with or otherwise installed
within the Premises by the Landlord or the Tenant shall, immediately on the
completion of their installation, become the Landlord's property without
payment therefor by the Landlord, except that any machinery, equipment or
fixtures installed by the Tenant and used in the conduct of the Tenant's trade
or business (rather than to service the Premises or any of the remainder of the
Building or the Property generally) shall remain the Tenant's property.
SECTION 6. MAINTENANCE AND SERVICES.
6.1. Ordinary services.
6.1.1.
(a)
(b)
6.1.2.
-9-
6.2. Extraordinary services.
6.2.1.
6.2.2.
6.3. Interruption. The Landlord shall have no liability to the
Tenant for any compensation or reduction of Rent on account of any failure,
modification or interruption of any such service which either (a) arises out of
any of the causes enumerated in the provisions of subsection 5.1, or (b) is
required by applicable law (including, by way of example rather than of
limitation, any federal law or regulation relating to the furnishing or
consumption of energy or the temperature of buildings).
6.4. Maintenance by Tenant. The Tenant shall maintain the
nonstructural parts of the interior of the Premises in good repair and
condition, ordinary wear and tear excepted.
6.5. Maintenance by Landlord. The Landlord shall furnish, supply and
maintain in good order and repair (a) the roof, structure and remainder of the
exterior of the Building, (b) any and all hallways, stairways, lobbies,
elevators, heating and air-conditioning facilities, electrical, sanitary sewer
and water lines and facilities, restroom facilities, grounds, sidewalks and
parking areas (including the removal of snow from such sidewalks and parking
areas), and other common areas, all if located within the Building or the rest
of the Property but not within the Premises, all at the Landlord's expense
except as is set forth in the provisions of Section 2 or any other provision of
this Lease.
SECTION 7. LANDLORD'S RIGHT OF ENTRY.
The Landlord and its agents shall be entitled to enter the Premises at any
reasonable time (a) to inspect the Premises, (b) to exhibit the Premises to any
existing or prospective purchaser, tenant or Mortgagee thereof, (c) to make any
alteration, improvement or repair to the Building or the Premises, or (d) for
any other purpose relating to the operation or maintenance of the Property;
provided, that the Landlord shall (a) (unless doing so is impractical or
unreasonable because of emergency) give the Tenant at least twenty-four (24)
hours' prior notice of its intention to enter the
-10-
Premises, and (b) use reasonable efforts to avoid thereby interfering more than
is reasonably necessary with the Tenant's use and enjoyment thereof.
SECTION 8. FIRE AND OTHER CASUALTIES.
8.1. General. Subject to Section 8.2 if the Premises are damaged by fire
or other casualty during the term,
8.1.1. the Landlord shall, with reasonable promptness (taking into
account the time required by the Landlord to effect a settlement with, and to
procure any insurance proceeds from, any insurer against such casualty, but in
any event within /6/ days after the date of such casualty), substantially
restore Premises to their condition immediately before such casualty, and may
temporarily enter and possess any or all of the Premises for such purpose
(provided, that the Landlord shall not be obligated to repair, restore or
replace any fixture, improvement, alteration, furniture or other property owned,
installed or made by the Tenant), but
8.1.2. the times for commencement and completion of any such
restoration shall be extended for the period of any delay occasioned by the
Landlord in doing so arising out of any of the causes enumerated in the
provisions of subsection 5.1. If the Landlord undertakes to restore the Premises
and such restoration is not accomplished within the said period of /7/ days plus
the period of any extension thereof, as aforesaid, the Tenant may terminate this
Lease by giving written notice thereof to the Landlord within thirty (30) days
after the expiration of such period, as so extended; and
8.1.3. so long as the Tenant is deprived of the use of any or all of
the Premises on account of such casualty, the Base Rent and any Additional Rent
payable under the provisions of subsection 2.2 shall be abated in proportion to
the number of square feet of the Premises rendered substantially unfit for
occupancy by such casualty, unless, because of any such damage, the undamaged
portion of the Premises is made materially unsuitable for use by the Tenant for
the purposes set forth in the provisions of Section 3, in which event the Base
Rent and any such Additional Rent shall be abated entirely during such period of
deprivation.
8.2. Substantial destruction. Anything contained in the foregoing
provisions of this Section to the contrary notwithstanding,
8.2.1. if during the Term the Building is so damaged by fire or
other casualty that (a) either the Premises or (whether or not the Premises are
damaged) the Building is rendered substantially unfit for occupancy, as
reasonably determined by the Landlord, or (b) the Building is damaged to the
extent that the Landlord reasonably elects to demolish the Building, or if any
Mortgagee requires that any or all of such insurance proceeds be used to retire
any or all of the debt secured by its Mortgage, then in any such case the
Landlord may elect to terminate this Lease as of the date of such casualty by
giving written notice thereof to the Tenant within thirty (30) days after the
date of such casualty; and
8.2.2. in such event, (a) the Tenant shall pay to the Landlord the
Base Rent and any Additional Rent payable by the Tenant hereunder and accrued
through the date of such /8/ , (b) the Landlord shall repay to the Tenant any
and all prepaid Rent for periods beyond such /9/ , and (c) the Landlord may
enter upon and repossess the Premises without further notice.
--------------------
/6/ one hundred eighty (180)
/7/ one hundred eighty (180)
/8/ casualty
/9/ casualty
-11-
8.3. Tenant's negligence. Anything contained in any provision of this
Lease to the contrary notwithstanding, if any such damage to the Premises, the
Building or both are caused by or result from the negligent or intentionally
tortious act or omission of the Tenant, those claiming under the Tenant or any
of their respective officers, employees, agents or invitees,
8.3.1. the Rent shall not be suspended or apportioned as aforesaid,
and
8.3.2. except if and to the extent that the Tenant is released from
liability therefor pursuant to the provisions of subsection 4.4, the Tenant
shall pay to the Landlord upon demand, as Additional Rent, the cost of (a) any
repairs and restoration made or to be made as a result of such damage, or (b)
(if the Landlord elects not to restore the Building) any damage or loss which
the Landlord incurs as a result of such damage.
SECTION 9. CONDEMNATION.
9.1. Right to award.
9.1.1. If any or all of the Premises are taken by the exercise of
any power of eminent domain or are conveyed to or at the direction of any
governmental entity under a threat of any such taking (each of which is
hereinafter referred to as a "Condemnation"), the Landlord shall be entitled to
collect from the condemning authority thereunder the entire amount of any award
made in any such proceeding or as consideration for such conveyance, without
deduction therefrom for any leasehold or other estate held by the Tenant under
this Lease.
9.1.2. The Tenant hereby (a) assigns to the Landlord all of the
Tenant's right, title and interest, if any, in and to any such award; (b) waives
any right which it may otherwise have in connection with such Condemnation,
against the Landlord or such condemning authority, to any payment for (i) the
value of the then-unexpired portion of the Term, (ii) leasehold damages, and
(iii) any damage to or diminution of the value of the Tenant's leasehold
interest hereunder or any portion of the Premises not covered by such
Condemnation; and (c) agrees to execute any and all further documents which may
be required to facilitate the Landlord's collection of any and all such awards.
9.1.3. /10/ , the Tenant may seek, in a separate proceeding, a
separate award on account of any damages or costs incurred by the Tenant as a
result of such Condemnation, so long as such separate award in no way diminishes
any award or payment which the Landlord would otherwise receive as a result of
such Condemnation.
9.2. Effect of Condemnation.
9.2.1. If (a) all of the Premises are covered by a Condemnation, or
(b) any part of the Premises is covered by a Condemnation and the remainder
thereof is insufficient for the reasonable operation therein of the Tenant's
business, or (c) any of the Building is covered by a Condemnation and, in the
Landlord's reasonable opinion, it would be impractical to restore the remainder
thereof, or (d) any of the rest of the Property is covered by a Condemnation
and, in the Landlord's reasonable opinion, it would be impractical to continue
to operate the remainder of the Property thereafter, then, in any such event,
the Term shall terminate on the date on which possession of so much of the
Premises, the Building or the rest of the Property, as the case may be, as is
covered by such Condemnation is taken by the condemning authority thereunder,
and all Rent (including, by way of example rather than of limitation, any
Additional Rent payable under the provision of subsection 2.2), taxes and other
charges payable hereunder shall be apportioned and paid to such date.
9.2.2. If there is a Condemnation and the Term does not terminate
pursuant to the foregoing provision of this subsection, the operation and effect
of this Lease shall be unaffected by
---------------------
/10/ Notwithstanding the foregoing,
-12-
such Condemnation, except that the Base Rent shall be reduced in proportion to
the square footage of floor area, if any, of the Premises covered by such
Condemnation.
9.3. If there is a Condemnation, the Landlord shall have no liability to
the Tenant on account of any (a) interruption of the Tenant's business upon the
Premises, (b) diminution in the Tenant's ability to use the Premises, or (c)
other injury or damage sustained by the Tenant as a result of such Condemnation.
9.4. Except for any separate proceeding brought by the Tenant under the
provisions of paragraph 9.1.3., the Landlord shall be entitled to conduct any
such condemnation proceeding and any settlement thereof free of interference
from the Tenant, and the Tenant hereby waives any right which it otherwise has
to participate therein.
SECTION 10. ASSIGNMENT AND SUBLETTING.
10.1. The Tenant hereby acknowledges that the Landlord has entered into
this Lease because of the Tenant's financial strength, goodwill, ability and
expertise and that, accordingly, this Lease is one which is personal to the
Tenant, and agrees for itself and its successors and assigns in interest
hereunder that it will not (a) assign any of its rights under this Lease, or (b)
make or permit any total or partial sale, lease, sublease, assignment,
conveyance, license, mortgage, pledge, encumbrance or other transfer of any or
all of the Premises or the occupancy or use thereof (each of which is
hereinafter referred to as a "Transfer"), without first obtaining the
Landlord's written consent thereto (which consent may be given or withheld in
the Landlord's sole discretion and, if given, shall not constitute a consent to
any subsequent such Transfer, whether by the person hereinabove named as the
"Tenant" or by any such transferee). The Landlord shall be entitled, at its
sole discretion, to condition any such consent upon the entry by such person
into an agreement with (and in form and substance satisfactory to) the Landlord,
by which it assumes all of the Tenant's obligations hereunder. Any person to
whom any Transfer is attempted without such consent shall have no claim, right
or remedy whatsoever hereunder against the Landlord, and the Landlord shall
have no duty to recognize any person claiming under or through the same. No
such action taken with or without the Landlord's consent shall in any way
relieve or release the Tenant from liability for the timely performance of all
of the Tenant's obligations hereunder. The Tenant hereby acknowledges that any
merger, consolidation or other restructuring of ownership interests in Tenant
constitutes a Transfer hereunder. As additional rent, Tenant shall reimburse
Landlord promptly for reasonable legal and other expenses incurred by Landlord
in connection with any request by Tenant for consent to assignment or
subletting; no assignment or subletting shall affect the continuing primary
liability of Tenant (which, following assignment, shall be joint and several
with the assignee); no consent to any of the foregoing in a specific instance
shall operate as a waiver in any subsequent instance. In the event that any
assignee or subtenant pays to tenant any amounts in excess of the Annual Rent
and Additional Rent then payable hereunder, or pro rata portion thereof on a
square footage basis for any portion of the Premises, Tenant shall promptly pay
/11/ said excess to Landlord as and when received by Tenant. /12/
10.2. Anything contained in the foregoing provisions of this Section to
the contrary notwithstanding, neither the Tenant nor any other person having an
interest in the possession, use or occupancy of the Premises or any other
portion of the Property shall enter into any lease, sublease, license,
concession or other agreement for the possession, use or occupancy of space in
the Premises or any other portion of the Property which provides for any rental
or other payment for such use, occupancy or utilization based in whole or in
part upon the net income or profits derived by any
------------------------
/11/ fifty percent (50%) of
/12/ For the purposes of this Lease, "Transfer" shall not be deemed to include
the transfer of shares of stock of Tenant by any of its principal
shareholders to members of their family or to legal entities formed for
the purpose of carrying out such principals' estate or succession
planning.
-13-
person from the space in the Premises or other portion of the Property so
leased, used or occupied (other than any amount based on a fixed percentages of
receipts or sales).
10.3. In the event of any Transfer with or without Landlord's consent,
Landlord may, at its sole option, have the right at any time or from time to
time after such Transfer to terminate this Lease as to all or any portion of the
Premises and enter into a direct lease agreement with the proposed sublessee.
Neither Tenant nor any party claiming an interest under or through Tenant shall
interfere with Landlord's exercise of its rights hereunder. Tenant hereby
indemnifies and holds Landlord harmless from and against any and all
liabilities, costs, losses or damages, including reasonable attorneys fees and
court costs, arising from any breach of the provisions of this section by
Tenant.
SECTION 11. RULES AND REGULATIONS.
The Landlord shall have the right to prescribe, at its sole discretion,
reasonable rules and regulations (hereinafter referred to as the "Rules and
Regulations") having uniform applicability to all tenants of the Building
(subject to the provisions of their respective leases) and governing their use
and enjoyment of the Building and the remainder of the Property; provided, that
the Rules and Regulations shall not materially interfere with the Tenant's use
and enjoyment of the Premises, in accordance with the provisions of this Lease,
for the purposes enumerated in the provisions of Section 3. The Tenant shall
adhere to the Rules and Regulations and shall cause its agents, employees,
invitees, visitors and guests to do so. A copy of the Rules and Regulations in
effect on the date hereof is attached hereto as Exhibit C.
SECTION 12. SUBORDINATION; ATTORNMENT AND NON-DISTURBANCE.
12.1. Subordination. This Lease shall be subject and subordinate to the
lien, operation and effect of each mortgage, deed of trust, ground lease and/or
other, similar instrument of encumbrance heretofore or hereafter covering any or
all of the Premises or the remainder of the Property (and each renewal,
modification, consolidation, replacement or extension thereof), (each of which
is herein referred to as a "Mortgage"), all automatically and without the
necessity of any action by either party hereto.
12.2. Attornment and non-disturbance. The Tenant shall, promptly at the
request of the Landlord or the holder of any Mortgage (herein referred to as a
"Mortgagee"), execute, enseal, acknowledge and deliver such further instrument
or instruments
12.2.1. Evidencing such subordination as the Landlord or such
Mortgagee deems necessary or desirable, and
12.2.2. (at such Mortgagee's request) attorning to such Mortgagee.
Landlord will use its reasonable efforts to obtain an agreement from the
Mortgagee (in such Mortgagee's usual form) that such Mortgagee will, in the
event of a foreclosure of any such mortgage or deed of trust (or termination of
any such ground lease) take no action to interfere with the Tenant's rights
hereunder, except on the occurrence of an Event of Default.
12.3. Anything contained in the provisions of this Section to the contrary
notwithstanding, any Mortgagee may at any time subordinate the lien of its
Mortgage to the operation and effect of this Lease without obtaining the
Tenant's consent thereto, by giving the Tenant written notice thereof, in which
event this Lease shall be deemed to be senior to such Mortgage without regard to
their respective dates of execution, delivery and/or recordation among the Land
Records of the said County, and thereafter such Mortgagee shall have the same
rights as to this Lease as it would have had, were this Lease executed and
delivered before the execution of such Mortgage.
SECTION 13. DEFAULT.
13.1. Definition: As used in the provisions of this Lease, each of the
following events shall constitute, and is hereinafter referred to as, an "Event
of Default":
-14-
13.1.1. If the Tenant fails to (a) pay any Rent or any other sum
which it is obligated to pay by any provision of this Lease, when and as due and
payable hereunder and without demand therefor, or (b) perform any of its other
obligations under the provisions of this Lease; or
13.1.2. If the Tenant (a) applies for or consents to the
appointment of a receiver, trustee or liquidator of the Tenant or of all or a
substantial part of its assets, (b) files a voluntary petition in bankruptcy or
admits in writing its inability to pay its debts as they come due, (c) makes an
assignment for the benefit of its creditors, (d) files a petition or an answer
seeking a reorganization or an arrangement with creditors, or seeks to take
advantage of any insolvency law, (e) performs any other act of bankruptcy, or
(f) files an answer admitting the material allegations of a petition filed
against the Tenant in any bankruptcy, reorganization or insolvency proceeding;
or
13.1.3. if (a) an order, judgment or decree is entered by any court
of competent jurisdiction adjudicating the Tenant a bankrupt or an insolvent,
approving a petition seeking such a reorganization, or appointing a receiver,
trustee or liquidator of the Tenant or of all or a substantial part of its
assets, or (b) there otherwise commences as to the Tenant or any of its assets
any proceeding under any bankruptcy, reorganization, arrangement, insolvency,
readjustment, receivership or similar law, and if such order, judgment, decree
or proceeding continues unstayed for more than sixty (60) consecutive days after
any stay thereof expires;
13.1.4. If the Tenant fails to occupy and assume possession of the
Premises within fifteen (15) days after the Commencement Date;
13.1.5. If the Tenant generally fails to pay its debts as they
become due; or
13.1.6. If the Tenant vacates or abandons the Premises, whether or
not Rent or other sums are due and unpaid hereunder.
13.2. Notice to Tenant; grace period. Anything contained in the provisions
of this Section to the contrary notwithstanding, on the occurrence of an Event
of Default the Landlord shall not exercise any right or remedy which it holds
under any provision of this Lease or applicable law unless and until
13.2.1. The Landlord has given written notice thereof to the
Tenant, if written notice is required by this Section for the Event of Default
which has occurred, and
13.2.2. The Tenant has failed, (a) if such Event of Default
consists of a failure to pay money, within five (5) days of the due date, or (b)
if such Event of Default consists of something other than a failure to pay
money, within thirty (30) days thereafter actively, diligently and in good faith
to begin to cure such Event of Default and to continue thereafter to do so until
it is fully cured; provided, that
13.2.3. No such notice shall be required, and the Tenant shall be
entitled to no such grace period, (a) in an emergency situation in which the
Landlord acts to cure such Event of Default pursuant to the provisions of
paragraph 13.3.5; or (b) the Tenant commits an Event of Default more than /13/
during any twelve (12) month period, or (c) if the Tenant has substantially
terminated or is in the process of substantially terminating its continuous
occupancy and use of the Premises for the purpose set forth in the provisions of
Section 3, or (d) in the case of any Event of Default enumerated in the
provisions of paragraphs 13.1.2., 13.1.3., 13.1.4. and 13.1.6.
13.3. Landlord's rights on Event of Default. On the occurrence of any
Event of Default, the Landlord may (subject to the operation and effect of the
provisions of subsection 13.2) take any or all of the following actions:
--------------------------
/13/ three (3) times
-15-
13.3.1. re-enter and repossess the Premises and any and all
improvements thereon and additions thereto;
13.3.2. declare the entire balance of the Rent for the remainder of
the Term to be due and payable, and collect such balance in any manner not
inconsistent with applicable law;
13.3.3. terminate this Lease;
13.3.4. relet any or all of the Premises for the Tenant's account
for any or all of the remainder of the Term as hereinabove defined, or for a
period exceeding such remainder, in which event the Tenant shall pay to the
Landlord, at the times and in the manner specified by the provisions of Section
2, the Base Rent and any Additional Rent accruing during such remainder, less
any monies received by the Landlord, with respect to such remainder, from such
reletting, as well as the cost to the Landlord of any attorneys' fees or of any
repairs or other action (including those taken in exercising the Landlord's
rights under any provision of this Lease) taken by the Landlord on account of
such Event of Default;
13.3.5. cure such Event of Default in any other manner (after
giving the Tenant written notice of the Landlord's intention to do so except as
provided in paragraph 13.2.3), in which event the Tenant shall reimburse the
Landlord for all expenses incurred by the Landlord in doing so, plus interest
thereon at the lesser of the rate of /14/ per annum or the highest rate then
permitted on account thereof by applicable law, which expenses and interest
shall be Additional Rent and shall be payable by the Tenant immediately on
demand therefor by the Landlord; and/or
13.3.6. pursue any combination of such remedies and/or any other
remedy available to the Landlord on account of such Event of Default under
applicable law.
13.4. No waiver. No action taken by the Landlord under the provisions of
this Section shall operate as a waiver of any right which the Landlord would
otherwise have against the Tenant for the Rent hereby reserved or otherwise, and
the Tenant shall remain responsible to the Landlord for any loss and/or damage
suffered by the Landlord by reason of any Event of Default.
13.5. Default by Landlord. In the event of any default by Landlord,
Tenant's exclusive remedy shall be an action for actual direct damages (Tenant
hereby waiving the benefit of any laws granting it a lien upon the property of
Landlord and/or upon rent due Landlord), but prior to any such action Tenant
will give Landlord written notice specifying such default with particularity,
and Landlord shall thereupon have thirty (30) days in which to cure any such
default. Unless and until Landlord fails to so cure any default after such
notice, Tenant shall not have any remedy or cause of action by reason thereof.
All obligations of Landlord hereunder will be construed as covenants, not
conditions, and all such obligations will be binding upon Landlord only during
the period of its ownership of the Building and the Property and not thereafter.
The term "Landlord" shall mean only the owner, for the time being of the
Premises, and in the event of the transfer by such owner of its interest in the
Premises, such owner shall thereupon be released and discharged from all
covenants and obligations of the Landlord thereafter accruing, but such
covenants and obligations shall be binding during the lease term upon each new
owner for the duration of such owner's ownership. Notwithstanding any other
provision hereof, Landlord shall not have any personal liability hereunder. In
the event of any breach or default by Landlord in any term or provision of this
Lease, Tenant agrees to look solely to the equity or interest then owned by
Landlord in the Property, however, in no event, shall any deficiency judgment or
any money judgment of any kind be sought or obtained against any Landlord.
-----------------------
/14/ twelve percent (12%)
-16-
SECTION 14. ESTOPPEL CERTIFICATE.
The Tenant shall from time to time, within five (5) days after being
requested to do so by the Landlord or any Mortgagee, execute, enseal,
acknowledge and deliver to the Landlord (or, at the Landlord's request, to any
existing or prospective purchaser, transferee, assignee or Mortgagee of any or
all of the Premises, the Property, any interest therein or any of the Landlord's
rights under this Lease) an instrument in recordable form,
14.1. certifying (a) that this Lease is unmodified and in full force and
effect (or, if there has been any modification thereof, that it is in full force
and effect as so modified, stating therein the nature of such modification); (b)
as to the dates to which the Base Rent and any Additional Rent and other charges
arising hereunder have been paid; (c) as to the amount of any prepaid Rent or
any credit due to the Tenant hereunder; (d) that the Tenant has accepted
possession of the Premises, and the date on which the Term commenced; (e) as to
whether, to the best knowledge, information and belief of the signer of such
certificate, the Landlord or the Tenant is then in default in performing any of
its obligations hereunder (and, if so, specifying the nature of each such
default); and (f) as to any other fact or condition reasonably requested by the
Landlord or such other addressee; and
14.2. acknowledging and agreeing that any statement contained in such
certificate may be relied upon by the Landlord and any such other addressee.
14.3. In the event that Tenant fails to deliver in a timely manner the
estoppel certificate described in Section 14, Landlord may complete such a
certificate on behalf of Tenant, which certificate shall be binding against
Tenant as if Tenant itself signed such certificate. For such purpose, Tenant
hereby irrevocably constitutes and appoints Landlord as Tenant's attorney-in-
fact (which appointment shall be deemed coupled with an interest) for an in its
name to prepare and sign on Tenant's behalf such an estoppel certificate, Tenant
hereby ratifying and confirming all the said attorney shall lawfully do or
choose to do or be done by virtue hereof, it being understood and agreed that
the aforesaid provisions impose no burden or obligation on the Landlord to do or
perform any act whatsoever. After said estoppel certificate has been prepared
by Landlord, Landlord shall provide Tenant a copy thereof. Unless Tenant
modifies such certificate as may be appropriate to make the certificate fully
accurate, and signs and returns to Landlord the certificate within three (3)
days after receipt from Landlord, Landlord shall be entitled and authorized to
sign such estoppel certificate and deliver to any Mortgagee or other person such
estoppel certificate in the name and on behalf of Tenant.
SECTION 15. QUIET ENJOYMENT.
The Landlord hereby covenants that the Tenant, on paying the Rent and
performing the covenants set forth herein, shall peaceably and quietly hold and
enjoy, throughout the Term, (a) the Premises, and (b) such rights as the Tenant
may hold hereunder with respect to the remainder of the Property.
SECTION 16. NOTICES.
Any notice, demand, consent, approval, request or other communication or
document to be provided hereunder to a party hereto shall be (a) given in
writing, and (b) deemed to have been given (i) forty-eight (48) hours after
being sent as certified or registered mail in the United States mails, postage
prepaid, return receipt requested, upon its hand delivery to such party, as
addressed as follows:
If to the Landlord: Norfolk Commerce Center Limited Partnership
c/o Cambridge Asset Advisors
Attention: Property Manager
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
-17-
If to Tenant: Boron, XxXxxx & Associates, Inc.
c/o Xxxx Xxxxx
00-00 Xxxxx 000 Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Each party may change its notice address by giving written notice of such
change to the other party in accordance with the terms of this Section 16.
SECTION 17. LANDLORD'S LIEN.
/15/
SECTION 18. GENERAL.
18.1. Effectiveness. This Lease shall become effective upon and only upon
its execution by each party hereto.
18.2. Complete understanding. This Lease represents the complete
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior written or oral negotiations, representations, warranties,
statements or agreements between the parties hereto as to the same.
18.3. Amendment. This Lease may be amended by and only by an instrument
executed and delivered by each party hereto.
18.4. Applicable law. This Lease shall be given effect and construed by
application of the laws of the Commonwealth of Virginia, and any action or
proceeding arising hereunder shall be brought in the Circuit Court for County of
the Commonwealth of Virginia; provided, that if such action or proceeding arises
under the Constitution, laws or treaties of the United States of America, or if
there is a diversity of citizenship between the parties thereto so that it is to
be brought in a United States District Court, it shall be brought in the United
States District court for the Eastern District of the Commonwealth of Virginia.
--------------------
/15/ Notwithstanding anything contained herein to the contrary, Landlord
agrees to delete Section 17 (Landlord's Lien), but reserves any
statutory lien for the Rent in Landlord's favor as well as all rights
and remedies granted under the Uniform Commercial Code.
-18-
18.5. Waiver. The Landlord shall not be deemed to have waived the
exercise of any right which it holds hereunder unless such waiver is made
expressly and in writing (and no delay or omission by the Landlord in exercising
any such right shall be deemed to be a waiver of its future exercise). No such
waiver as to any instance involving the exercise of any such right shall be
deemed a waiver as to any other such instance, or any other such right.
18.6. Time of essence. Time shall be of the essence of this Lease.
18.7. Headings. The headings of the Sections, subsections, paragraphs
and subparagraphs hereof are provided herein for and only for convenience of
reference, and shall not be considered in construing their contents.
18.8. Construction. As used herein,
18.8.1. the term "person" means a natural person, a trustee, a
corporation, a partnership and any other form of legal entity; and
18.8.2. all references made (a) in the neuter, masculine or
feminine gender shall be deemed to have been made in all such genders, (b) in
the singular or plural number shall be deemed to have been made, respectively,
in the plural or singular number as well, and (c) to any Section, subsection,
paragraph or subparagraph shall, unless therein expressly indicated to the
contrary, be deemed to have been made to such Section, subsection, paragraph or
subparagraph of this Lease.
18.9. Exhibits. Each writing referred to herein as being attached hereto
as an exhibit or otherwise designated herein as an exhibit hereto is hereby made
a part hereof.
18.10. Severability. No determination by any court, governmental body or
otherwise that any provision of this Lease or any amendment hereof is invalid or
unenforceable in any instance shall affect the validity or enforceability of (a)
any other such provision, or (b) such provision in any circumstance not
controlled by such determination. Each such provision shall be valid and
enforceable to the fullest extent allowed by, and shall be construed wherever
possible as being consistent with, applicable law.
18.11. Definition of the "Landlord".
18.11.1. As used herein, the term the "Landlord" means the person
hereinabove named as such, and its heirs, personal representatives, successors
and assigns (each of whom shall have the same rights, remedies, powers,
authorities and privileges as it would have had, had it originally signed this
lease as the Landlord).
18.11.2. No person holding the Landlord's interest hereunder
(whether or not such person is named as the "Landlord" herein) shall have any
liability hereunder after such person ceases to hold such interest, except for
any such liability accruing while such person holds such interest.
18.11.3. Neither the Landlord nor any principal of the Landlord,
whether disclosed or undisclosed, shall have any personal liability under any
provision of this Lease.
18.12. Definition of the "Tenant". As used herein, the term the "Tenant"
means each person hereinabove named as such and such person's heirs, personal
representatives, successors and assigns, each of whom shall have the same
obligations, liabilities, rights and privileges as it would have possessed had
it originally executed this Lease as the Tenant; provided, that no such right or
privilege shall inure to the benefit of any assignee of the Tenant, immediate or
remote, unless the assignment to such assignee is made in accordance with the
provisions of Section 10. Whenever two or more persons constitute the Tenant,
all such persons shall be jointly and severally liable for performing the
Tenant's obligations hereunder.
18.13. Commissions. Each party hereto hereby represents and warrants to
the other that, in connection with the leasing of the Premises hereunder, the
party so representing and warranting
-19-
has not dealt with any real estate broker, agent or finder, other than Cambridge
Property Group Limited Partnership and Xxxxxxxx Sigma Commercial Real Estate,
Inc. (representing Landlord) and Xxxxxxx Xxxxx Xxxxx Xxxxxxx (representing
Tenant) and there is no other commission, charge or other compensation due on
account thereof. Each party hereto shall indemnify and hold harmless the other
against and from any inaccuracy in such party's representation.
18.14. Recordation. This Lease may not be recorded among the Land Records
of the said County or among any other public records, without the Landlord's
prior express, written consent thereto, and any attempt by the Tenant to do so
without having obtained the Landlord's consent thereto shall constitute an Event
of Default hereunder. If this Lease is recorded by either party hereto, such
party shall bear the full expense of any transfer, documentary stamp or other
tax, and any recording fee, assessed in connection with such recordation;
provided, that if under applicable law the recordation of this Lease hereafter
becomes necessary in order for this Lease to be or remain effective, the Tenant
shall bear the full expense of any and all such taxes and fees incurred in
connection therewith.
18.15. Tenant's Declaration. Tenant is not the subject of (i) any
petition under any Chapter of the Bankruptcy Code, Title 11, United States Code
(the "Bankruptcy Code"), and has no intent to seek relief, protection,
reorganization, liquidation, dissolution or similar relief from debtors under
any local, state, federal or other insolvency laws or laws providing for relief
of debtors, or in equity, or directly or indirectly to cause any of them to file
any such petition or to seek any such relief, either at the present time or at
any time hereafter; or (ii) any actions, suits or proceedings pending or
threatened against Tenant or involving Tenant's business that could have a
material adverse effect on Tenant's ability to perform its obligations pursuant
to this Lease.
18.16. Waiver of Trial by Jury. The Tenant hereby waives trial by jury in
any action or proceeding to which the Tenant and the Landlord may be parties,
arising out of or in any way pertaining to (a) this Lease, or (b) the Property.
It is agreed and understood that this waiver constitutes a waiver of trial by
jury of all claims against all parties to such actions or proceedings, including
claims against parties who are not parties to this Lease.
This waiver is knowingly, willingly and voluntarily made by the Tenant, and
the Tenant hereby represents that no representations of fact or opinion have
been made by any individual to induce this waiver of trial by jury or to in any
way modify or nullify its effect. The Tenant hereby represents that it has been
represented in the signing of this Lease and in the making of this waiver by
independent legal counsel, selected of its own free will, and that it has had
the opportunity to discuss this waiver with counsel.
18.17. Approval by Mortgagees. Anything contained in the provisions of
this Lease to the contrary notwithstanding, the Landlord shall be entitled at
any time hereafter but before the Landlord delivers possession of the Premises
to the Tenant hereunder, to terminate this Lease by giving written notice
thereof to the Tenant, if any Mortgagee fails to approve this Lease for purposes
of the provisions of its Mortgage, and in the manner set forth therein.
18.18. Required Changes in Lease by Lenders. In the event that any lender
providing construction or permanent financing or any refinancing for the
Building requires, as a condition of such financing, that modifications to this
Lease be obtained; and provided that such modifications (i) are reasonable; (ii)
do not adversely affect Tenant's use of the Leased Premises as herein permitted
or the leasehold interest hereby created; (iii) do not increase the base rent,
operating rent and other sums to be paid by Tenant hereunder; and (iv) do not
affect the Term, the location of or access to the Leased Premises, signage,
parking or sublease and assignment provisions, then Landlord may submit to
Tenant a written amendment to this Lease incorporating such required written
changes, and Tenant hereby covenants and agrees to execute, acknowledge and
deliver such amendment to Landlord within five (5) days of Tenant's receipt
thereof.
18.19. Financial Information. At Landlord's request, Tenant shall deliver
certified copies of Tenant's most recent and historical financial statements.
Such statements shall include Balance
-20-
Sheets, Income and Expense Statements as well as any other supporting documents
required by Landlord or any person or institution providing financing to the
Property or relating to the Property.
18.20. Authority. The person executing and delivering this Lease on
behalf of Landlord represents and warrants that he has full power, authority and
right to do so pursuant to the ownership and of Landlord. The person executing
and delivering this Lease on behalf of Tenant represents and warrants that he
has full power, authority and right to do so on behalf of Tenant.
IN WITNESS WHEREOF, each party hereto has executed and ensealed this Lease
or caused it to be executed and ensealed on its behalf by its duly authorized
representatives, the day and year first above written.
WITNESS: The Landlord:
NORFOLK COMMERCE PARK LIMITED
PARTNERSHIP, a Virginia limited
partnership
[SIGNATURE APPEARS HERE] By: Commerce Park, Inc., a
----------------------------- Virginia corporation
Its: General Partner
By: [SIGNATURE APPEARS HERE]
-----------------------------
Its: Vice Pres.
----------------------------
WITNESS: The Tenant:
BORON, XxXXXX & ASSOCIATES, INC.,
a Delaware corporation
[SIGNATURE APPEARS HERE] By: [SIGNATURE APPEARS HERE]
----------------------------- -----------------------------
Its: President
-----------------------------
-21-
AGREEMENT OF LEASE
by and between
NORFOLK COMMERCE CENTER LIMITED PARTNERSHIP
and
BORON, XxXXXX & ASSOCIATES, INC.
EXHIBIT A
PREMISES
The Premises, known as Suite F consists of approximately 4,660 rentable square
feet of office and warehouse space in Norfolk Commerce Center IV, a 74,925
square foot office project located at 0000 Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx
00000; (and the Premises) to be located in the approximate location shown on the
plan attached hereto as Exhibit A-1.
-22-
AGREEMENT OF LEASE
by and between
NORFOLK COMMERCE CENTER LIMITED PARTNERSHIP
and
BORON, XxXXXX & ASSOCIATES, INC.
EXHIBIT A-1
SITE PLAN
[DIAGRAM OF NORFOLK COMMERCE CENTER IV APPEARS HERE]
-23-
AGREEMENT OF LEASE
by and between
NORFOLK COMMERCE CENTER LIMITED PARTNERSHIP
and
BORON, XxXXXX & ASSOCIATES, INC.
EXHIBIT B
TENANT IMPROVEMENTS
Tenant accepts the Premises in its absolute "as is" condition. Listed
below are the quality of items to be used in any further improvement of the
Premises. Landlord shall provide up to $7,000.00 for the further improvement of
the Premises. Tenant agrees to comply with Exhibit B-2 when it intends to
further improvements.
A. DEMISING PARTITIONS
-------------------
1. Sound insulated separation between tenants as required.
2. Walls to be drywall (to conform with local code) painted with latex
flat paint and 2 1/2" vinyl cove base (office areas only).
3. Walls to be built to underside of roof deck or ceiling as required by
code.
B. INTERIOR OFFICE PARTITIONS
--------------------------
1. Walls to be 1/2" drywall painted with latex flat paint and 2 1/2" vinyl
cove base.
2. Walls to be built to underside of finished ceiling.
C. DOORS, HARDWARE AND FRAMES
--------------------------
1. Doors will be 3'0" x 7'0" hollow core finished with latex semi-gloss
paint.
2. Finished hardware will include 1 1/2 pair of butts per door, passage
set on all doors.
3. Door frames to be punched for silencers, furnished with finish hardware
and painted with latex semi-gloss paint.
D. PERIMETER WALLS
---------------
1. Walls to be 1/2" drywall painted with latex flat paint and 2 1/2" vinyl
cove base insulated as per construction drawings.
E. VINYL TILE FLOORS
-----------------
1. Vinyl tile floors to be 12" x 12" x 1/8" Xxxxxxxxx Excellon or equal.
F. CARPET
------
1. Carpet will be 26 oz. level loop carpet.
-24-
EXHIBIT B - TENANT IMPROVEMENTS
PAGE TWO
G. ACOUSTICAL CEILINGS
-------------------
1. Ceilings to be 2' x 4' white lay in 5/8" mineral fiberboard tiles with
exposed suspended white grid system.
H. BLINDS
------
1. Blinds to be 1" Levelor Series or equal (by tenant).
I. PLUMBING
--------
1. Each tenant area shall be serviced by a toilet room(s) equipped to
conform to all local handicapped requirements and all miscellaneous
accessories.
2. Plumbing fixtures shall be as follows:
a. Water Closet - Porcelain elongated bowl/tank type/white in color.
b. Lavatory.
c. Hot Water Heater - "Rheem" or equal, glass lined unit 6-20 gallon
capacity as required.
J. MECHANICAL
----------
1. Office Areas - Electric/Gas roof top unit HVAC system.
a. Cooling - Outside temperature 95 degrees dry bulb. Interior
temperature 78 degrees dry bulb with approximately 50% X.X.
x. Heating - Outside temperature 0 degree/interior temperature 65
degrees.
2. Warehouse Areas - Unit heaters.
a. Heating - Outside temperature 0 degree/interior temperature 50
degrees.
3. All sheet metal to conform to S.M.A.C.N.A. standards.
4. Supply Air Ducts to be insulated with 1/2" foil-faced fiberglass
blankets if required.
K. ELECTRICAL
----------
1. Electrical service shall be 100 AMP - standard.
2. Office light fixtures to be 2' x 4' four tube fluorescent lay-in, in
sufficient quantity to maintain 70 foot candles at desk height (one per
85 square feet typical).
3. Warehouse light fixtures to be 8' two tube fluorescent surface mount in
sufficient quantity to maintain 25 foot candles.
4. One duplex electrical outlet per 000 xxxxxx xxxx (xxxxxx xxxx).
5. One electrical switch per 000 xxxxxx xxxx (xxxxxx xxxx).
-25-
EXHIBIT B - TENANT IMPROVEMENTS
PAGE THREE
6. All areas will receive emergency lighting systems as required by local
codes.
7. Each toilet room to receive one (1) exhaust fan.
L. SPRINKLER
---------
1. Sprinkler heads will be dropped into each office area as required by
local codes.
-26-
AGREEMENT OF LEASE
by and between
NORFOLK COMMERCE CENTER LIMITED PARTNERSHIP
and
BORON, XxXXXX & ASSOCIATES, INC.
EXHIBIT B-1
SPACE PLAN
SEE 1/8" SPACE PLAN ATTACHED TO THE END OF THIS LEASE
-27-
AGREEMENT OF LEASE
by and between
NORFOLK COMMERCE CENTER LIMITED PARTNERSHIP
and
BORON, XxXXXX & ASSOCIATES, INC.
EXHIBIT B-2
REQUIREMENTS OF TENANT
1. Indemnification Letter:
----------------------
Tenant shall hold Landlord and Landlord's Agent, CAMCON Limited
Partnership, harmless for work performed by other contractors. Tenant shall
provide to Landlord's Agent evidence of full payment of all contractors at
completion of project.
2. Drawings/Permits/Budget:
-----------------------
Tenant shall submit to Landlord's Agent for approval, before any work has
commenced, a budget. /16/ The Tenant shall be required to secure any/all
permits at its sole cost and expense. The Landlord expects the Tenant to
use materials of the same standards and specification as outlined in
Exhibit B.
3. Contractors:
-----------
All contractors must have evidence of license and insurance. Tenant shall
supply to Landlord's Agent all certificates of insurance and licenses
before work is to commence. All contractors will sign lien release forms
with respect to Landlord and Landlord's Agent with sole remedy for payment
placed with the Tenant. Contractors will conform proposed improvements to
Exhibit B.
4. Landlord's Discretion:
---------------------
Landlord's Agent shall approve or disapprove all proposed improvements
within ten (10) business days, of receipt of drawings, budgets,
Construction Management fee and evidence contractor license and insurance.
5. Evidence of Final Inspection/Certification from Architect:
---------------------------------------------------------
Tenant shall supply to Landlord's Agent evidence of final inspection from
the governing municipality as well as certification from Tenant's architect
of completion of improvements.
6. Construction Management Fee:
---------------------------
-----------------------
/16/ Landlord hereby approves of the improvements outlined in Exhibit
B-1 attached hereto.
-28-
AGREEMENT OF LEASE
by and between
NORFOLK COMMERCE CENTER LIMITED PARTNERSHIP
and
BORON, XxXXXX & ASSOCIATES, INC.
EXHIBIT C
CURRENT RULES AND REGULATIONS
1. The sidewalks, lobbies, passages, elevators and stairways shall not be
obstructed by the Tenant and used by the Tenant for any purposes other than
ingress and egress from and to the Tenant's offices. The Landlord shall in
all cases retain the right to control or prevent access thereto by any
person whose presence, in the Landlord's judgment, would be prejudicial to
the safety, peace, character or reputation of the Building or of any tenant
of the Property.
2. The toilet rooms, water closets, sinks, faucets, plumbing and other service
apparatus of any kind shall not be used by the Tenant for any purpose other
than those for which they were installed, and no sweepings, rubbish, rags,
ashes, chemicals or other refuse or injurious substances shall be placed
therein or used in connection therewith by the Tenant, or left by the
Tenant in the lobbies, passages, elevators or stairways of the Building.
3. No skylight, window, door or transom of the Building shall be covered or
obstructed by the Tenant, and no window shade, blind, curtain, screen,
storm window, awning or other material shall be installed or placed on any
window or in any window space, except as approved in writing by the
Landlord. If the Landlord has installed or hereafter installs any shade,
blind or curtain in the Premises, the Tenant shall not remove it without
first obtaining the Landlord's written consent thereto.
4. No sign, lettering, insignia, advertisement, notice or other thing shall be
inscribed, painted, installed, erected or placed in any portion of the
Premises which may be seen from outside the Building, or on any window,
window space or other part of the exterior or interior of the Building,
unless first approved in writing by the Landlord. Names on suite entrances
shall be provided by and only by the Landlord and at the Tenant's expense,
using in each instance lettering of a design and in a form consistent with
the other lettering in the Building, and first approved in writing by the
Landlord. The Tenant shall/will not erect any stand, booth or showcase or
other article or matter in or upon the Premises and/or the Building without
first obtaining the Landlord's written consent thereto.
5. The Tenant shall not place any additional lock upon any door within the
Premises or elsewhere upon the Property, and shall surrender all keys for
all such locks at the end of the Term. The Landlord shall provide the
Tenant with one set of keys to the Premises when the Tenant assumes
possession thereof.
6.
7. The Tenant shall not do or permit to be done anything which obstructs or
interferes with the rights of any other tenant of the Property. The Tenant
shall not keep anywhere within the Property any matter having an offensive
odor, or any kerosene, gasoline, benzine, camphene, fuel or other explosive
or highly flammable material. No bird, fish or other animal shall be
brought into or kept in or about the Premises.
-29-
EXHIBIT C - CURRENT RULES AND REGULATIONS
PAGE TWO (2)
8. So that the Premises may be kept in a good state of preservation and
cleanliness, the Tenant shall, while in possession of the Premises, permit
only the Landlord's employees and contractors to clean the Premises unless
prior thereto the Landlord otherwise consents in writing /17/. /18/ the
Landlord shall not be responsible to the Tenant for any damage done to any
furniture or other property of the Tenant or any other person caused by any
of the Landlord's employees or any other person, for any loss sustained by
any of the Tenant's employees, or for any loss of property of any kind in
or from the Premises, however occurring. The Tenant shall see each day that
the windows are closed and the doors securely locked before leaving the
Premises, and that all lights and standard office equipment within the
Premises are turned off.
9. If the Tenant desires to install signaling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices within the Premises,
the Landlord shall direct where and how they are to be installed and,
except as so directed, no installation, boring or cutting shall be
permitted. The Landlord shall have the right (a) to prevent or interrupt
the transmission of excessive, dangerous or annoying current of electricity
or otherwise into or through the Building or the Premises, (b) to require
the changing of wiring connections or layout at the Tenant's expense, to
the extent that the Landlord may deem necessary, (c) to require compliance
with such reasonable rules as the Landlord may establish relating thereto,
and (d) in the event of noncompliance with such requirements or rules,
immediately to cut wiring or do whatever else it considers necessary to
remove the danger, annoyance or electrical interference with apparatus in
any part of the Building. Each wire installed by the Tenant must be clearly
tagged at each distributing board and junction box and elsewhere where
required by Landlord, with the number of the office to which such wire
leads and the purpose for which it is used, together with the name of the
tenant or other concern, if any, operating or using it.
10. A directory will be provided by the Landlord on the ground floor of the
Building, on which the Tenant's name may be placed.
11. No furniture, package, equipment, supplies or merchandise may be received
in the Building, or carried up or down in the elevators or stairways,
except during such hours as are designated for such purpose by the
Landlord, and only after Tenant gives notice thereof to the Landlord. The
Landlord shall have the exclusive right to prescribe the method and manner
in which any of the same is brought into or taken out of the Building, and
the right to exclude from the Building any heavy furniture, safe or other
article which may create a hazard and to require it to be located at a
designated place in the Premises. The Tenant shall not place any weight
anywhere beyond the safe carrying capacity of the Building. The cost of
repairing any damage to the Building or any other part of the Property
caused by taking any of the same in or out of the Premises, or any damage
caused while it is in the Premises or the rest of the Building, shall be
borne by the Tenant.
12. Without the Landlord's prior written consent, (a) nothing shall be fastened
to (and no hole shall be drilled, or nail or screw driven into) any wall or
partition, (b) no wall, or partition shall be painted, papered or otherwise
covered or moved in any way or marked or broken, (c) no connection shall be
made to any electrical wire for running any fan, motor or other
---------------------
/17/ which consent shall not be unreasonably withheld.
/18/ Unless Landlord, or its employees, contractors or agents has been
proven to have caused such damage,
-30-
apparatus, device or equipment, (d) no machinery of any kind other than
customary small business machinery shall be allowed in the Premises, (e) no
switchboard or telephone wiring or equipment shall be placed anywhere other
than where designated by the Landlord, and (f) no mechanic shall be allowed
to work in or about the Building other than one employed by the Landlord,
unless approved in writing by Landlord.
EXHIBIT C - CURRENT RULES AND REGULATIONS
PAGE THREE (3)
13. The Tenant shall have access to the Premises at all reasonable times. The
Landlord shall in no event be responsible for admitting or excluding any
person from the Premises. In case of invasion, hostile attack,
insurrection, mob violence, riot, public excitement or other commotion,
explosion, fire or any casualty, the Landlord shall have the right to bar
or limit access to the Building to protect the safety of occupants of the
Property, or any property within the Property.
14. The Landlord shall have the right to rescind, suspend or modify the Rules
and Regulations and to promulgate such other Rules or Regulations as, in
the Landlord's reasonable judgment, are from time to time needed for the
safety, care, maintenance, operation and cleanliness of the Building, or
for the preservation of good order therein. Upon the Tenant's having been
given notice of the taking of any such action, the Rules and Regulations as
so rescinded, suspended, modified or promulgated shall have the same force
and effect as if in effect at the time at which the Tenant's lease was
entered into (except that nothing in the Rules and Regulations shall be
deemed in any way to alter or impair any provision of such lease).
15. The use of any room within the Building as sleeping quarters is strictly
prohibited at all times.
16. The Tenant shall keep the windows and doors of the Premises (including
those opening on corridors and all doors between rooms entitled to receive
heating or air conditioning service and rooms not entitled to receive such
service), closed while the heating or air conditioning system is operating,
in order to minimize the energy used by, and to conserve the effectiveness
of, such systems. The Tenant shall comply with all reasonable Rules and
Regulations from time to time promulgated by the Landlord with respect to
such systems or their use.
17. Nothing in these Rules and Regulations shall give any Tenant any right or
claim against the Landlord or any other person if the Landlord does not
enforce any of them against any other tenant or person (whether or not the
Landlord has the right to enforce them against such tenant or person), and
no such nonenforcement with respect to any tenant shall constitute a waiver
of the right to enforce them as to the Tenant or any other tenant or
person.
-31-
AGREEMENT OF LEASE
by and between
NORFOLK COMMERCE CENTER LIMITED PARTNERSHIP
and
BORON, XxXXXX & ASSOCIATES, INC.
EXHIBIT D
BASE RENT
===========================================================================
LEASE SQUARE ANNUAL MONTHLY
YEAR FEET BASE RENT BASE RENT
===========================================================================
date first written above - June 14, 1997 4,660 $0.00 $0.00
---------------------------------------------------------------------------
June 15, 1997 - June 30, 1997 4,660 n/a $1,634.19
---------------------------------------------------------------------------
July 01, 1997 - June 30, 1998 4,660 $37,280.00 $3,106.67
---------------------------------------------------------------------------
July 01, 1998 - June 30, 1999 4,660 $38,398.40 $3,199.87
---------------------------------------------------------------------------
July 01, 1999 - June 30, 2000 4,660 $39,550.35 $3,295.86
---------------------------------------------------------------------------
July 01, 2000 - June 30, 2001 4,660 $40,736.86 $3,394.74
---------------------------------------------------------------------------
July 01, 2001 - June 30, 2002 4,660 $41,958.97 $3,496.58
---------------------------------------------------------------------------
July 01, 2002 - June 30, 2003 4,660 $43,217.74 $3,601.48
---------------------------------------------------------------------------
July 01, 2003 - June 30, 2004 4,660 $44,514.27 $3,709.52
---------------------------------------------------------------------------
July 01, 2004 - June 30, 2005 4,660 $45,849.70 $3,820.81
---------------------------------------------------------------------------
July 01, 2005 - June 30, 2006 4,660 $47,225.19 $3,935.43
---------------------------------------------------------------------------
July 01, 2006 - June 30, 2007 4,660 $48,641.94 $4,053.50
===========================================================================
-32-
AGREEMENT OF LEASE
by and between
NORFOLK COMMERCE CENTER LIMITED PARTNERSHIP
and
BORON, XxXXXX & ASSOCIATES, INC.
EXHIBIT E
ADDITIONAL PROVISIONS
Addendum to the Lease dated April _____, 1997 between Norfolk Commerce Center
Limited Partnership, as "Landlord", and, Boron, XxXxxx & Associates, Inc. as
"Tenant". Landlord and Tenant hereby agree as follows:
SECTION 19. RENT ABATEMENT.
Provided this Lease is in full force and effect and no Event of Default by
Tenant has occurred hereunder, the Base Rent shall be abated from the date first
written above until June 14, 1997 (the "Abatement Period"). All other provisions
of the Lease shall be in effect during the Abatement Period. The entire Base
Rent otherwise due and payable for the Abatement Period shall become immediately
due and payable upon the occurrence of an Event of Default under the Lease.
SECTION 20. RENEWAL OPTION.
Provided this Lease is in full force and effect and no Event of Default by
Tenant has occurred hereunder, Tenant shall have the right to renew this Lease
for one (1) five (5) year term upon providing Landlord with written notice six
(6) months prior to the current expiration. The renewal term shall be subject to
the terms and conditions set forth in this Lease and the Base Rent shall be at
the then current market rates at the time of the renewal. Tenant's rights as to
this option are personal to the original Tenant executing the Lease and may not
be exercised or be assigned, voluntarily, by or to any person or entity other
than the original Tenant.
SECTION 21. JANITORIAL SERVICES AND UTILITIES.
Notwithstanding anything contained in the Lease to the contrary, Tenant
shall contract and pay directly for janitorial service and utilities, which are
separately metered, servicing the Premises upon Tenant's occupancy including
during the Abatement Period as described in Section 19 above.
SECTION 22. ASSIGNMENT AND SUBLETTING.
Notwithstanding the provisions of Section 10, Tenant shall have the right
to assign its Lease or sublease all or any part of the Premises with Landlord's
prior written approval, which approval shall not be unreasonably withheld or
delayed.
SECTION 23. SIGNAGE
Tenant shall have the right, subject to Landlord's reasonable approval, to
install standard building signage, at its sole cost, above the suite entrance,
as long as it complies with local sign ordinances and the rules of Norfolk
Commerce Park.
-33-
