Washington Real Estate Investment Trust OFFICE BUILDING LEASE
Exhibit
A
Washington
Real Estate Investment Trust
BY
AND
BETWEEN
Washington
Real Estate Investment Trust
as
Landlord
and
Thorium
Power, Inc.
as
Tenant
TABLE
OF
CONTENTS
|
ARTICLE
I. PREMISES
|
1
|
|
ARTICLE
II. TERM
|
1
|
|
ARTICLE
III. RENT
|
1
|
|
ARTICLE
IV. TENANTS TAXES
|
4
|
|
ARTICLE
V. SECURITY DEPOSIT
|
4
|
|
ARTICLE
VI. USE OF PREMISES
|
5
|
|
ARTICLE
VII. ENVIRONMENTAL COVENANTS
|
5
|
|
ARTICLE
VIII. MAINTENANCE OF PREMISES BY TENANT
|
6
|
|
ARTICLE
IX. LANDLORD SERVICES
|
7
|
|
ARTICLE
X. LIABILITY OF LANDLORD
|
7
|
|
ARTICLE
XI. SIGNS
|
8
|
|
ARTICLE
XII. ALTERATIONS
|
9
|
|
ARTICLE
XIII. SUBLETTING AND ASSIGNMENT
|
9
|
|
ARTICLE
XIV. RIGHT OF ACCESS
|
11
|
|
ARTICLE
XV. INCREASE IN LANDLORD’S FIRE INSURANCE
|
11
|
|
ARTICLE
XVI. TENANT’S EQUIPMENT
|
11
|
|
ARTICLE
XVII. CONDEMNATION
|
11
|
|
ARTICLE
XVIII. INSURANCE
|
12
|
|
ARTICLE
XIX. FIRE OR CASUALTY
|
13
|
|
ARTICLE
XX. DEFAULTS AND REMEDIES
|
13
|
|
ARTICLE
XXI. BANKRUPTCY
|
14
|
|
ARTICLE
XXII. LANDLORD’S LIEN
|
14
|
|
ARTICLE
XXIII. LEGAL FEES
|
15
|
|
ARTICLE
XXIV. DAMAGE
|
15
|
|
ARTICLE
XXV. SUBORDINATION
|
15
|
|
ARTICLE
XXVI. TENANT HOLDOVER
|
16
|
|
ARTICLE
XXVII. WAIVER AND NOTICE
|
16
|
|
ARTICLE
XXVIII. WAIVER OF JURY TRIAL
|
16
|
|
ARTICLE
XXIX. LIMITATION OF LIABILITY OF LANDLORD
|
17
|
|
ARTICLE
XXX. NOTICES
|
17
|
|
ARTICLE
XXXI. CERTAIN RIGHTS RESERVED BY LANDLORD
|
17
|
|
ARTICLE
XXXII. BROKER
|
17
|
|
ARTICLE
XXXIII. ESTOPPEL CERTIFICATE
|
17
|
|
ARTICLE
XXXIV. RULES AND REGULATIONS
|
17
|
|
ARTICLE
XXXV. FINANCIAL STATEMENTS
|
18
|
|
ARTICLE
XXXVI. RELOCATION
|
19
|
|
ARTICLE
XXXVII. QUIET ENJOYMENT
|
19
|
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ARTICLE
XXXVIII. MEDICAL WASTE
|
19
|
|
ARTICLE
XXXIX. MISCELLANEOUS
|
00
|
-0-
XXXXXXXXXXX:
EXHIBIT
A
PLAN
EXHIBIT
B
LANDLORD’S WORK
EXHIBIT
C
MEMORANDUM OF LEASE COMMENCEMENT DATE
-2-
WASHINGTON
REAL ESTATE INVESTMENT TRUST
THIS
AGREEMENT OF LEASE is made this 14 day of August, 2001 by and between the
Washington Real Estate Investment Trust, hereinafter called Landlord, and
Thorium Power INC. hereinafter Tenant.
WITNESSETH:
ARTICLE
I. PREMISES
1.1.
In
consideration of the rent hereinafter reserved and of the covenants hereinafter
contained. Landlord hereby leases and demises as Tenant,
and Tenant hereby leases from Landlord, Suites 202 and 204, hereby deemed to
contain approximately 2,093 square feet of rentable area measured in accordance
with the Greater Washington Commercial Association of Realtors Standard Method
of Measurement, on the second floor of the building located at 0000 Xxxxxxxxxxxx
Xxxxxx, XX, Xxxxxxxxxx. XX 00000 (“Building”) which space is hereinafter
referred to as the Premises.
The foregoing approximation of square footage shall in no affect the Basic
Annual Rent hereunder should any variance be found to exist between the
approximation and the actual square footage. The Premises are identified on
Exhibit “A”, which is attached hereto and incorporated herein for all purposes.
The lease of the Premises includes the right, together with other tenants of
the
Building and members of the public, to use the common areas of the Building,
but
includes no other rights not specifically set forth herein Landlord reserves
the
right to modify the size, location, arrangement, finish and other features
of
the common areas of the Building.
ARTICLE
II. TERM
2.1.
The
Lease Term shall be for five (5) years and zero (0) months (“Term”). The Lease
Term shall commence on the date Landlord delivers possession of the Premises
to
Tenant (“Lease Commencement Date”). It is presently anticipated that the
Premises will be delivered to Tenant on or about September 1, 2001 (“Anticipated
Occupancy Date”). If the Lease Commencement Date is not the first day of a
month, then the Lease Term shall be extended to include the partial month in
which the Lease Commencement Date occurs. The date on which the Lease Term
expires shall be the Lease Expiration Date.
2.2.
If
Landlord is unable to give possession of the Premises on or about the
Anticipation Occupancy Date by reason of the holding over or retention of
possession of any tenant or occupant, or if repairs, improvements or decorations
of the Premises, or of the Building of which the Premises form a part are not
completed, or for any other reason, this Lease shall not be void or voidable
and
Landlord shall not be subject to any liability for the failure to give
possession on the Anticipated occupancy Date. Under such circumstances the
rent
reserved and covenanted to be paid herein shall not commence until the
possession of the Premises is given or the Premises are available for occupancy
by Tenant, and no such failure to give possession on the Anticipated Occupancy
Date shall in any other respect affect the validity of this Lease or the
obligations of Tenant hereunder, nor shall same be consumed in any way to extend
the Lease Term. If permission is given to Tenant to possess the Premises prior
to the Anticipated Occupancy Date, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions
and
provisions of this Lease.
2.3.
Promptly after the Lease Commencement Date is ascertained, Landlord and Tenant
shall execute a certificate substantially in the form of Exhibit C hereto and
incorporated herein for all purposes affirming the Lease Commencement Date
and
the Lease Expiration Date.
ARTICLE
III. RENT
3.1.
Tenant agrees to pay during the term hereof a Basic Annual Rent of Sixty-Six
Thousand Two Hundred Thirteen and 00/100 Dollars ($66,213,00). (hereinafter
called the “Basic Annual Rent”) payable without deduction, set off, abatement,
demand or counterclaim, in equal monthly installments of Five Thousand Five
Hundred Seventeen and 75/100 Dollars ($5,517.75). Such Basic Annual Rent (and
the monthly installments thereof) shall be adjusted annually pursuant to Section
3.3 hereof. Tenant shall pay the first installment on the execution of this
Lease and the remaining Installments in advance on the first day of each and
every calendar month during the Lease Term (commencing with the second month
of
the Term).
3.2.
All
rent payments shall be made payable to xxRIT and delivered to Washington Real
Estate Investment Trust, X.X. Xxx 00000, Xxxxxxxxx, Xxxxxxxx, 00000-0000 or
to
such other person and place as Landlord may hereafter designate in writing.
Such
rent payments shall be paid by check (subject to collection) drawn on a member
bank of the Federal Reserve System. Fifth District. In the event any check
is
returned by Tenant’s bank, or in the event Tenant fails to make any payment of
rent on such payment’s due date, Landlord shall have the right, at Landlord’s
option, to require that any or all subsequent payments be made by certified
funds or cashier’s check.
-1-
3.3
On
the first day of the second Lease Year (as hereinafter defined) and on the
first
day of every Lease Year thereafter during the Lease Term, the Basic Annual
Rate
shall be increased by two and 50/100 percent (2.5%) of the preceding Lease
Year’s Basic Annual Rent.
3.4
Tenant shall pay to Landlord as additional rent two and 15/100 percent (2.15%)
(being the stipulated proportion which the rentable area of the Premises bears
to the total rentable area of the Building) of the increase in real estate
taxes
(including special assessment, if any, and any other taxes now or hereafter
imposed which are in the nature of or in substitution for real estate taxes)
levied on the Building and the land (the “Land”) on which the Building is
situated over the “Base Real Estate Taxes.” In the event the rentable area of
the Building is increased or decreased, the Tenant’s proportionate share will be
recalculated and adjusted. Tenant’s proportionate share of real estate taxes
shall be percentage set forth above, except as follows: If any space in the
Building is leased to a tenant who creates an exemption from real estate taxes
so as to reduce the Building’s total cost of the same in proportion to that
tenant’s rentable area, then the rentable area or such tenant’s space shall be
excluded from the rentable area of the Building for the purpose of determining
Tenant’s percentage share or real property taxes. For purposes hereof, the Base
Real Estate Taxes are stipulated to be the amount of real estate taxes actually
incurred by Landlord with respect to the Building and the Land during calendar
year 2001.
(a)
In
the event that the actual real estate taxes for any calendar year during the
Term exceed the Base Real Estate Taxes set out above, commencing September
1,
2002 and thereafter, Tenant shall pay its proportionate share of the increase
in
the real estate taxes for such year over the Base Real Estate Taxes. Any
increase payable by Tenant under this provision shall be deemed additional
rent.
(b)
Prior
to each January 1st during the Term, Landlord shall provide Tenant a comparison
of the Base Real Estate Taxes and the projected real estate taxes for the coming
year. Commencing each January 1st during the Term, Tenant shall pay monthly
as
additional rent, one-twelfth (1/12th) of Tenant’s proportionate share of any
projected increase in the annual real estate taxes over the Base Real Estate
Taxes. Landlord shall, within ninety (90) days (or as soon thereafter as
possible) after the close of each calendar year, provide Tenant a statement
of
such year’s actual real estate taxes, showing the actual increase, if any, in
the real estate taxes over the Base Real Estate Taxes. However, Landlord’s
failure to provide any statement within the time specified shall in no way
excuse Tenant from its obligation to pay its proportionate share or constitute
a
waiver of Landlord’s right to xxxx and collect such proportionate share. Within
fifteen (15) days after Tenant’s receipt of said statement, Tenant shall pay
Landlord Tenant’s proportionate share of the excess, if any, of actual real
estate taxes over the projected real estate taxes. If the amount paid by Tenant
during the previous year exceeded Tenant’s share of actual real estate taxes for
the year, the excess shall be credited towards any amounts then due Landlord
or
accruing thereafter and if no amounts are due Landlord or will accrue
thereafter, then such excess shall be refunded to Tenant.
(c)
Reasonable expenses incurred by Landlord in obtaining or attempting to obtain
a
reduction of real estate taxes shall be added to and included in the annual
statement of real estate taxes. Real estate taxes which are being contested
by
Landlord shall nevertheless be included for purposes of the computation of
the
liability of Tenant under this Section; provided, however, that in the event
that Tenant shall have paid any amount of additional rent pursuant to Section
3.4 and Landlord shall thereafter receive a refund of any portion of the real
estate taxes on which such payment was based, Landlord shall pay to Tenant
its
proportionate share of such refund less any costs incurred in obtaining same.
Landlord shall have no obligation to contest, object to, or litigate the levying
or imposition of any real estate taxes and may settle, compromise, consent
to,
waive, or otherwise determine in its discretion any real estate taxes without
consent or approval of Tenant.
3.5
Tenant shall pay to Landlord as additional rent two and 54/100 percent (2.54%)
(being the stipulated proportion which the rentable area of the Premises bears
to the total rentable office area of the Building) of the increase in Operating
Expenses during the Term over Initial Operating Expenses. In the event the
gross
leasable area of the Building is increased or decreased, then Tenant’s Operating
Expenses percentage shall be recalculated and adjusted. Tenant’s proportionate
share of Operating Expenses shall be the percentage set forth above, except
as
follows: If any space in the Building is leased to a tenant who is separately
responsible for paying the cost of a service that would otherwise be included
in
Operating Expenses, the rentable area of such tenant’s space shall be excluded
from the rentable area of the Building for the purpose of determining Tenant’s
percentage share of the balance of the cost of such services. Additionally,
if
any space in the Building is leased to a tenant who creates an exemption from
any category of Operating Expenses so as to reduce the Building’s total cost of
the same in proportion to that tenant’s rentable area, then the rentable area of
such tenant’s space shall be excluded from the rentable area of the Building for
the purpose of determining Tenant’s percentage share of such category of
Operating Expenses.
(a)
“Operating Expenses,” as that term is used herein, shall mean all expenses,
costs and disbursements (but not replacement of capital investment items or
specific costs billed to and paid by specific tenants) of every kind and nature
which Landlord shall pay or become obligated to pay because of or in connection
with the ownership, management, repair and operation of the Building including,
but not limited to, the following:
(i)
Cost
of wages and salaries of all employees engaged in the operations and maintenance
of the Building, including taxes, insurance and benefits;
-2-
(ii)
Cost
of all supplies and materials used in the operation, maintenance and repair
of
the Building;
(iii)
Cost of all utilities (including surcharges) including, but not limited to,
water, sewer, electricity, heating, lighting, air conditioning and ventilating
for the Building, but excluding electricity separately paid for by individual
tenants;
(iv)
Cost
of all maintenance and service agreements for the Building and the equipment
used therein including, but not limited to, access control and energy management
services, security of the Building, window cleaning, elevator maintenance and
janitorial service;
(v)
Cost
of insurance relating to the Building, including, but not limited to, the cost
of casualty and liability insurance applicable to the Building and Landlord’s
personal property used in connection therewith;
(vi)
Cost
of repairs and general maintenance (excluding repairs and general maintenance
paid for by the proceeds of insurance, or by Tenant or third
parties;
(vii)
management fee of three percent (3%) of the gross revenues of the
building;
(viii)
Cost of any additional service provided by Landlord in the prudent management
of
the Building including any service not provided at the Lease Commencement date
but thereafter provided by Landlord;
(ix)
Cost
of audit and accounting services;
(x)
Cost
of any capital improvements made to the Building after the Lease Commencement
Date that, in Landlord’s reasonable judgment are intended to reduce other
operating expenses or are required under any governmental law or regulation,
such cost thereof to be amortized over such reasonable period as Landlord shall
determine.
(b)
Operating Expenses shall not include the following:
(i)
costs
of capital improvements other than as set forth in clause (x) above;
(ii)
ground rent and interest on and amortization of mortgages;
(iii)
Landlord’s income, excise or franchise taxes;
(iv)
salaries of Landlord’s employees not engaged in the operation, management,
maintenance or repair of the Building;
(v)
legal
fees incurred in connection with the leasing of the Building or in connection
with disputes with other tenants relating to the collection of rent and similar
matters not benefiting the tenants of the Building generally;
(vi)
leasing commissions, advertising expenses and other such expenses incurred
in
leasing or marketing the space within the Building.
(c)
Operating Expenses for each calendar year shall be those actually incurred,
provided however, that (i) if the Building was not at least ninety percent
(90%)
occupied during the entire calendar year, the Operating Expenses shall be
adjusted to project the Operating Expenses as if the Building were ninety
percent (90%) occupied, and (ii) Landlord shall bear the percentage of Operating
Expenses allocable to unleased space within the Building.
(d)
For
purposes hereof, the Initial Operating Expenses are stipulated to be the amount
of Operating Expenses actually incurred by Landlord during calendar year
2001.
(e)
In
the event that the actual Operating Expenses for any calendar year during the
Term exceed the Initial Operating Expenses set out above, commencing September
1, 2002 and thereafter, Tenant shall pay its proportionate share of the increase
in Operating Expenses for such year over the Initial Operating Expenses. Any
increase payable by Tenant under this provision shall be deemed additional
rent.
(f)
Prior
to each January 1st during the Term, Landlord shall provide Tenant a comparison
of the Initial Operating Expenses and the projected Operating Expenses for
the
coming year. Commencing each January 1st during the Term, Tenant shall pay
monthly as additional rent, one twelfth (l/12th) of Tenant’s proportionate share
of any projected increase in the Operating Expenses over the Initial Operating
Expenses. Landlord shall, within ninety (90) days (or as soon thereafter as
possible) after the close of each calendar year, provide Tenant a statement
of
such year’s actual Operating Expenses, showing the actual increase, if any, in
Operating Expenses over the Initial Operating Expenses. However, Landlord’s
failure to provide any statement within the time specified shall in no way
excuse Tenant from its obligation to pay its proportionate share or constitute
a
waiver of Landlord’s right to xxxx and collect such proportionate share. Within
fifteen (15) days after Tenant’s receipt of said statement, Tenant shall pay
Landlord Tenant’s proportionate share of the excess, if any, of actual Operating
Expenses over the projected Operating Expenses. If the amount paid by Tenant
during the previous year exceeded Tenant’s share of actual Operating Expenses
for the year, the excess shall be credited towards any amounts then due Landlord
or accruing thereafter, and if no amounts are due Landlord or will accrue
thereafter, then such excess shall be refunded to Tenant.
3.6.
Should this lease commence or terminate at any time other than the last day
of a
calendar year, the amounts due as additional rent pursuant to Sections 3.4
and
3.5 for the commencement or termination year only shall be prorated by the
following fraction.
Days
Under Lease
365
-3-
3.7.
For
a period of 180 days following the date on which Landlord delivers to Tenant
the
statement of actual Operating Expenses or real estate taxes as provided in
Sections 3.4 and 3.5 hereof, Tenant at its expense shall have the right during
Landlord’s business hours to examine Landlord’s books and records relating to
the Operating Expenses and real estate taxes of the Building for the year to
which such statement relates; or, at Landlord’s sole discretion, Landlord will
provide Tenant with an audited statement. If Tenant shall not request an audit
in accordance with the provisions of this Section 3, within ninety (90) days
of
receipt of Landlord’s statement, such statement shall be conclusive and binding
on Tenant. In the event Tenant elects to audit Landlord’s statement(s), such
audit must be conducted by an independent nationally recognized accounting
firm
that is not being compensated by Tenant on a contingency basis. Additionally,
Tenant must keep all information it obtains from Landlord’s books and records in
strictest confidence and Tenant shall cause its auditor to be similarly
bound.
3.8.
Tenant’s obligation to pay the amounts due as rent pursuant to this Lease shall
survive any expiration or termination of this Lease by lapse of time or
otherwise.
3.9.
The
term “Lease Year” shall mean each period of twelve (12) consecutive months
commencing on the Lease Commencement Date, except that if the Lease Commencement
Date is not the first day of a month, then the first Lease Year shall commence
on the Lease Commencement Date and shall continue for the balance of the month
in which the Lease Commencement Date occurs and for a period of twelve (12)
calendar months thereafter and subsequent Lease Years shall commence on the
day
following the last day of the preceding Lease Year.
3.10.
If
the Lease Term begins on other than the first day of a month, Basic Annual
Rent
from such date until the first day of the next month shall be prorated on the
basis of the actual number of days in such month and shall be payable in
advance.
3.11.
All
costs and expenses other than Basic Annual Rent which Tenant assumes or agrees
to pay to Landlord pursuant to this Lease shall be deemed to be “additional
rent” and, in the event of nonpayment thereof, Landlord shall have all the
rights and remedies provided for in the case of nonpayment of rent, including
assessment of interest and late fees. Basic Annual Rent and additional rent
are
sometimes referred to collectively herein as “rent”.
3.12.
Tenant agrees to pay to Landlord, as additional rent, a late fee equal to five
percent (5%) of any amount due for monthly rent or other payments due hereunder
if said payments have not been received by Landlord within five (5) days of
the
due date. In addition, if Landlord does not receive such payment within thirty
(30) days of such payment’s due date, then such payment and late charge shall
bear interest at the rate per annum equal to the greater of (a) eighteen percent
(18%) per annum; provided, however, such rate is not usurious or (b) the highest
non-usurious rate permitted under the laws of the jurisdiction where the
Building is located from the date such payment was due to the date of payment
thereof. Such late charge and interest shall constitute additional rent due
hereunder, shall be paid with the next monthly installment of Basic Annual
Rent
coming due hereunder, and shall be in addition to, and not in lieu of, all
other
rights and remedies provided to Landlord in this Lease, at law, or in
equity.
ARTICLE
IV. TENANT’S TAXES
4.1.
In
the event that any business, rent or other taxes, or any governmental charges
that are now or hereafter levied upon Tenant’s use or occupancy of the Premises
or Tenant’s business at the Premises are enacted, changed or altered so that any
of such taxes are levied against Landlord, or the mode of collection of payment
of such taxes, Tenant shall pay any and all such taxes to Landlord upon written
demand from Landlord.
ARTICLE
V. SECURITY DEPOSIT
5.1.
Tenant agrees to pay to Landlord at the signing of this Lease five thousand
five
hundred seventeen and 75/100 Dollars ($5,517.75) (“Security Deposit”) as
security for compliance with the terms of this Lease. Upon the occurrence of
any
Event of Default by Tenant, Landlord may, from time to time in its sole
discretion, without prejudice to any other remedy, use and apply the Security
Deposit to the extent necessary to make good any arrearages of rent and any
other damage, injury, expense or liability suffered by Landlord by such Event
of
Default. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand as additional rent the amount so applied in order
to
restore the Security Deposit to its original amount. Within approximately
forty-five (45) days after the Lease Expiration Date and after the Premises
have
been timely vacated in good order and repair and inspected and the keys returned
to Landlord, then Landlord shall return said Security Deposit to Tenant, without
interest, less such portion of the Security Deposit as Landlord shall have
used
to satisfy Tenant’s obligations under this Lease. If Landlord transfers the
Security Deposit to any transferee of the Building or Landlord’s interest
therein, then said transferee shall be liable to Tenant for the return of the
Security Deposit, and Landlord shall be released from all liability for the
return of the Security Deposit. The holder of any mortgage shall not be liable
for the return of the Security Deposit unless such holder actually receives
the
Security Deposit. If an Event of Default under this Lease shall occur more
than
two (2) times within any twelve-month period, irrespective of whether or not
such Event of Default is cured, then, without limiting Landlord’s other rights
and remedies provided for in this Lease or at law or equity, the Security
Deposit shall automatically be increased
by an amount equal to the greater of: (a) three (3) times the original Security
Deposit, or (b) three (3) months’ Basic Annual Rent, at the then current amount,
which shall be paid by Tenant to Landlord within ten (10) days of Landlord’s
demand therefor.
-4-
ARTICLE
VI. USE OF PREMISES
6.1.
Tenant shall use and occupy the Premises solely for executive and general
offices and only in accordance with the uses permitted under applicable zoning
and other municipal regulations and for no other purpose whatsoever. Tenant
will
not use or occupy the Premises for any disorderly, unlawful or extra hazardous
purposes, or for any purpose that will constitute waste, nuisance or
unreasonable annoyance to Landlord or other tenants of the Building, or for
any
purpose prohibited in the rules and regulations promulgated by Landlord. Tenant
acknowledges that a use that on a regular basis attracts a large number of
people would cause unreasonable annoyance to Landlord and other tenants of
the
Building. Tenant agrees, at Tenant’s expense, to comply with all present and
future laws, ordinances, regulations and orders of the United States of America,
the state in which the Premises are located and any other public or quasi-public
authority having jurisdiction over the Building.
6.2.
Tenant shall obtain, at Tenant’s sole expense, any initial certificate of
occupancy and/or any other permits, approvals and licenses required at the
time
of the commencement of the Lease Term. Any amended or substitute certificate
of
occupancy necessitated by Tenant’s particular use of the Premises or any
alterations made by Tenant in the Premises shall be obtained by Tenant at
Tenant’s sole expense. Tenant shall obtain and keep current such certificates,
permits, approvals and licenses at Tenant’s own expense and shall promptly
deliver a copy thereof to Landlord.
ARTICLE
VII. ENVIRONMENTAL COVENANTS
7.1.
Tenant, its employees, agents, contractors and invitees shall, at Tenant’s own
expense, comply with all Environmental Laws, as herein defined, in connection
with its use and occupancy of the Premises and shall obtain, maintain and comply
with all necessary environmental permits, approvals, registrations and
licenses.
7.2.
Tenant, its employees, agents, contractors and invitees shall not use, generate,
release, manufacture, treat, refine, produce, process, store, dump or dispose
of
any Hazardous Substance, as herein defined, on, under, or about the Premises,
the Building, or the Land or transport to or from the Premises any Hazardous
Substance. Notwithstanding anything to the contrary contained in this Section
7.2, Tenant may use and store within the Premises such reasonable quantities
of
normal office products as are used by Tenant in the ordinary course of its
business operations and which are customarily found in first-class offices;
provided such reasonable quantities and use do not constitute a danger to the
health of individuals or a danger to the environment and which are used, stored
and disposed of in accordance with all applicable Environmental
Laws.
7.3.
Tenant shall, at Tenant’s own expense, make all submissions to, provide all
information required by, and comply with all requirements of all governmental
authorities (the “Authorities” or “Authority”) under the Environmental Laws.
Tenant shall provide Landlord with copies of any environmental audit prepared
by
or for Tenant with respect to the Premises and any report(s) or filing(s) made
by Tenant with any Authority.
7.4.
Should Landlord, any Authority or any third party demand that a clean-up plan
be
prepared and that a clean-up be undertaken because of any deposit, spill,
discharge, or other release of Hazardous Substances that occurs as a result
of
Tenant’s use or occupancy of the Premises, then Tenant shall, at Tenant’s own
expense, prepare and submit to Landlord and any applicable Authority the
required plans and all related bonds and other financial assurances, and Tenant
shall carry out all such clean-up plans following their approval by Landlord
and
all applicable Authorities.
7.5.
Tenant shall promptly provide all information regarding the use, generation,
storage, transportation, or disposal of Hazardous Substances that is requested
by Landlord. If Tenant fails to fulfill any duty imposed under this ARTICLE
VII
within ten (10) days, Landlord may fulfill such duty on behalf of Tenant, at
Tenant’s cost and expense; and in such case, Tenant shall cooperate with
Landlord in order to prepare all documents Landlord deems necessary or
appropriate to determine the applicability of the Environmental Laws to the
Premises and Tenant’s use thereof, and for compliance therewith, and Tenant
shall execute all documents promptly upon Landlord’s request. No such action by
Landlord and no attempt made by Landlord to mitigate damages under any
Environmental Law shall constitute a waiver of any of Tenant’s obligations under
this ARTICLE VII.
7.6. Tenant
shall immediately notify Landlord in writing of any release or discharge of
any
Hazardous Substance, whether or not the release is in quantities that would
require under law the reporting of such release to a governmental or regulatory
agency.
7.7. Tenant
shall also immediately notify Landlord in writing of, and shall
contemporaneously provide Landlord with a copy of:
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(a)
Any
written notice of release of Hazardous Substances in the Premises that is
provided by Tenant or any subtenant or other occupant of the Premises to a
governmental or regulatory agency;
(b)
Any
notice of a violation, or a potential or alleged violation, of any Environmental
Law that is received by Tenant or any subtenant or other occupant of the
Premises from any governmental or regulatory agency;
(c)
Any
inquiry, investigation, enforcement, cleanup, removal, or other action that
is
instituted or threatened by a governmental or regulatory agency against Tenant
or any subtenant or other occupant of the Premises and that relates to the
release or discharge of Hazardous Substances on or from the
Premises;
(d)
Any
claim that is instituted or threatened by any third party against Tenant or
any
subtenant or other occupant of the Premises and that relates to any release
or
discharge of Hazardous Substance on or from the Premises; and
(e)
Any
notice of the loss of any environmental operating permit by Tenant or any
subtenant or other occupant of the Premises.
7.8.
Landlord shall have the right, but not the obligation, at all times during
the
Lease Term to (1) inspect the Premises; (2) enter upon the Premises to conduct
tests and investigations and take samples to determine whether Tenant is in
compliance with the provisions of this ARTICLE VII, or as otherwise necessary;
and (3) request lists of all Hazardous Substances used, stored or located on
the
Premises. The cost of all such inspections, tests and investigations shall
be
borne by Tenant.
7.9.
Tenant’s obligations and liabilities under this ARTICLE VII shall survive the
expiration or early termination of the Lease. For purposes of this ARTICLE
VII,
the Building shall include the Land.
7.10.
Tenant shall indemnify, defend, protect and hold harmless Landlord, the manager
of the Building, and their respective officers, directors, trustees,
beneficiaries, shareholders, partners, agents and employees from all fines,
suits, procedures, claims, and actions of every kind, and all costs associated
therewith (including without limitation, attorneys’ and consultants’ fees and
the costs of investigation and settlement of any claims) arising out of or
in
any way connected with (1) any deposit, spill, discharge, or other release
of
Hazardous Substances which arises at any time from Tenant’s, its employees’,
agents’, contractors’, or invitees’ use or occupancy of the Premises or the
Building; (2) any failure to provide all information, make all submissions
and
take all steps required by all Authorities under the Environmental Laws; and
(3)
Tenant’s, its employees’, agents’, contractors’ or invitees’ breach of this
Article VII, whether or not Tenant has acted negligently with respect to such
Hazardous Substances.
7.11.
As
used in this ARTICLE VII, the term “Hazardous Substances” means:
(a)
any
substance designated pursuant to Section 311 (b)(2)(A) of the Federal Water
Pollution Control Act;
(b)
any
element, compound, mixture, solution or substance designated pursuant to Section
102 of the Comprehensive Environmental Response, Compensation and Liability
Act;
(c)
any
hazardous waste having the characteristics identified under or listed pursuant
to Section 3001 of the Solid Waste Disposal Act;
(d)
any
toxic pollutant listed under Section 307(a) of the Federal Water Pollution
Control Act;
(e)
any
hazardous air pollutant listed under Section 112 of the Clean Air
Act;
(f)
any
imminently hazardous chemical substance or mixture with respect of which the
Administrator of the United States Environmental Protection Agency has taken
action pursuant to Section 7 of the Toxic Substances Control Act;
and
(g)
any
substance, waste or other material considered hazardous, dangerous or toxic
under any state, local or federal law, code, ordinance or
regulation.
(h)
petroleum and petroleum products, including crude oil or any fraction thereof,
which is not specifically listed or designated as a Hazardous Substance under
subsection 7.11 (a) through (g) of this ARTICLE VII, as well as natural gas,
natural gas liquids, liquefied natural gas and synthetic gas usable for fuel
and
mixtures of natural gas and such synthetic gas.
7.12.
As
used in this ARTICLE VII, the term “Environmental Laws” shall mean and refer to
the entirety of the federal acts, portions of which are referenced in Section
7.11, and all other federal and all state and local laws, codes, ordinances,
rules regulations, and directives governing the discharge, emission or disposal
of any pollutant in, to or from the Premises or the Building or other premises
or the environment and prescribing methods for storing, handling or otherwise
managing Hazardous Substances and wastes including, but not limited to, the
then
current versions of the following federal statutes, their state analogs, and
the
regulations implementing them: the Resource Conservation and Recovery Act (42
U.S.C. 6901 et seq.),
the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
9601 et seq.),
the
Clean Water Act (33 U.S.C. 1251 et seq.),
the
Clean Air Act (42 U.S.C. 7401 et seq.),
and
the Toxic Substances Control Act (15 U.S.C. 2601 et seq.).
ARTICLE
VIII. MAINTENANCE OF PREMISES BY TENANT
8.1.
Tenant
shall not in any manner deface or injure the Premises or the Building and will
pay the cost of repairing any damage or injury done to the Premises or the
Building or any part thereof by Tenant or Tenant’s employees, agents,
contractors or invitees. Tenant agrees that it will keep the Premises and the
fixtures therein in clean, safe, sanitary and good order and condition and
will,
at the expiration or other
termination of the Term hereof, remove all goods and effects not the property
of
Landlord and surrender and deliver up the same broom clean to Landlord,
including keys, locks and other fixtures connected
therewith, in like good order and condition as the same now is or shall be
at
the commencement of
the
Lease Term, ordinary wear and tear and damage by the elements, fire, and other
unavoidable casualty
excepted.
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8.2.
Maintenance
and repair of equipment such as kitchen fixtures, separate air conditioning
equipment, or any other type of special equipment, whether installed by Tenant
or by Landlord on behalf of Tenant, shall be the sole responsibility of Tenant
and Landlord shall have no obligation in connection therewith.
8.3.
In
the
event a balcony is part of the Premises, Tenant agrees to keep the balcony
in
clean, safe, sanitary and broom-clean condition. Tenant shall not place or
put
any furniture or other items on the balcony without Landlord’s prior written
consent, except for an antenna, which Tenant may install pursuant to the terms
of a separate agreement to be entered into between Landlord and Tenant
containing Landlord’s rules and regulations regarding antennae. In the event
Tenant fails to obtain Landlord’s prior written consent, Landlord shall have the
right to remove all such furniture or other items not approved by Landlord.
Tenant shall not use the balcony for cooking purposes. Landlord shall have
no
liability for any person or any furniture or other item that may fall from
the
balcony, and Tenant shall indemnify and hold Landlord,
its employees and agents harmless from and against all costs, claims,
liabilities, fines, suits, expenses,
and damages of any kind (including reasonable attorneys’ fees) resulting
therefrom.
ARTICLE
IX. LANDLORD SERVICES
9.1.
Landlord covenants and agrees that it will without additional charge, furnish
(a) building standard heat and air conditioning to maintain the Premises at
a
reasonably comfortable temperature between the hours of 8:00 A.M. and 6:00
P.M.,
Monday through Friday of each week, and between
the hours of 8:00 A.M. and 1:00 P.M. on Saturday of each week, except holidays
recognized by the
U.S.
Government; (b) electricity for lighting purposes, and normal office use
operations, excluding, however,
any equipment requiring heavier than normal office use of utilities, (c)
elevator services; and (d) janitorial and char services from 6:00 P.M to 10:00
P.M. Monday through Friday of each week, except holidays recognized by the
U.S.
Government. It is also agreed that if Tenant requires air conditioning, heat
or
janitorial and char services beyond the foregoing normal hours of operation
of
the Building, and provided
arrangements are made with Landlord’s managing agent, Landlord will furnish such
services and Tenant shall pay as additional rent the cost thereof at the price
stipulated by Landlord from time to time.
9.2.
It
is
agreed that Landlord shall not be liable in any way for any failure to furnish
or in any way for any damage or inconvenience caused by the cessation or
interruption of such heating, air conditioning, electricity, elevator, janitor
or char services caused by fire, accidents, strikes, breakdowns, necessary
maintenance, alterations, repairs, scarcity of labor or materials, acts of
God
or any other causes. It is further agreed that any such failure or inability
to
furnish the utilities or services required hereunder shall not be considered
an
eviction, actual or constructive, of Tenant from the Premises, and shall not
entitle Tenant to terminate this Lease or to an abatement of rent payable
hereunder.
ARTICLF
X. LIABILITY OF LANDLORD
10.1.
Landlord, its employees and agents shall not be liable to Tenant, its employees,
agents, invitees or any other person or entity claiming through Tenant for
any
damage (including indirect and consequential damage), injury, loss or claim
(including claims for the interruption of or loss to business) based on or
arising out of any cause whatsoever, including without limitation the following:
(a) repair to any portion of the Premises or the Building; (b) interruption
in
the use of the Premises or any equipment therein; (c) any accident or damage
resulting from any use or operation (by Landlord, Tenant or any other person
or
entity) of elevators or heating, cooling, electrical, sewerage or plumbing
equipment or apparatus; (d) termination of this Lease by reason of damage to
the
Premises or the Building; (e) fire, robbery, theft, vandalism, mysterious
disappearance or any other casualty; (f) actions of any other tenant of the
Building or of any other person or entity; (g) failure or inability of Landlord
to furnish any utility or service specified in this Lease; and (h) leakage
in
any part of the Premises or the Building, or from water, rain, ice or snow
that
may leak into, or flow from, any part of the Premises or the Building, or from
drains, pipes or plumbing fixtures in the Premises or the Building. All personal
property stored or placed by Tenant or its employees, agents, invitees or any
other person or entity claiming through Tenant in or about the Premises or
the
Building shall be at the sole risk of Tenant, and Landlord shall not in any
manner be held responsible therefor. Landlord shall not be liable in damages,
nor shall this Lease be affected, for conditions arising or resulting from
the
construction of contiguous premises, which may affect the Building of which
the
Premises are a part. Landlord assumes no liability or responsibility whatsoever
with respect to the conduct and operation of the business to be conducted in
the
Premises. For purposes of this Section, the term “Building” shall be deemed to
include the Land. Notwithstanding the foregoing, Landlord shall not be released
from liability to Tenant for any physical injury to any natural person caused
solely by Landlord’s, or its employees’ or agents’ gross negligence or willful
misconduct except to the extent covered by ARTICLE XVIII of this
Lease.
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10.2.
Tenant shall indemnity and hold Landlord, its employees and agents harmless
from
and against all costs, damages, claims, demands, liabilities, fines, suits,
actions, proceedings, orders, decrees, judgments, expenses and damages of
any
kind and nature (including without limitation attorneys’ fees and the costs of
investigation and settlement of any claims) asserted by or on behalf of any
person, entity or governmental authority against landlord, directly or
indirectly, based on or arising out of (a) Tenant’s use and occupancy of the
Premises or the business conducted by Tenant therein, (b) any act or omission
of
Tenant or any employee, agent, or invitee of Tenant in or on the Premises,
and/or (c) any accident, injury or damage whatsoever to any person, or line
property of any person, occurring in or
on the
Premises unless the same was caused by the sole gross negligence or willful
misconduct of Landlord, its employees or agents.
10.3.
Tenant and all those claiming by, through or under Tenant shall store their
property in and shall occupy and use the Premises and any improvements therein
and appurtenances thereto and all other portions of the Building solely at
their
own risk, and Tenant and all those claiming by, through or under Tenant hereby
release Landlord, to the full extent permitted by law, from all claims of
every
kind, including loss of life, personal or bodily injury, damage to merchandise,
equipment, fixtures or other property, or damage to business or for business
interruption arising directly or indirectly, out of or from or on account
of
such occupancy and use or resulting from any present or future condition
or
state of repair thereof.
10.4.
Landlord shall not be responsible or liable at any time to Tenant, or to
those
claiming by, through or under Tenant, for any loss of life, bodily or personal
injury, or damage to property or business or for business interruption that
may
be occasioned by or though the acts, omissions or negligence of any other
persons or any other tenants or occupants of any portion of the
Building.
10.5.
Landlord shall not be responsible or liable at any time for any defects,
latent
or otherwise, in the Building or any of the equipment, machinery, utilities,
appliances or apparatus therein, nor shall Landlord be responsible or liable
at
any time for loss of life or injury or damage to any person or to any property
or business of Tenant, or those claiming by, through or under Tenant, caused
by
or resulting from the bursting, breaking, exploding, leaking, running seeping,
overflowing or backing up of water, steam, gas, sewage, snow or ice in any
part
of the Premises or the Building or caused by or resulting from acts of God
or
the elements, or resulting from any defect or negligence by third parties
in the
occupancy, construction, operation or use of any buildings or improvements
in
the Building, including the Premises.
10.6.
Tenant shall give prompt notice to Landlord in case of fire or other casualty
or
accidents in the Premises or in the Building of any defects therein or in
any of
its fixtures, machinery or equipment.
10.7.
If
any landlord hereunder transfers the Building or such landlord’s interest
therein, then such landlord shall not be liable for any obligation or liability
based on or arising out of any event or condition occurring on or after the
date
of such transfer.
10.8.
Tenant shall not have the right to offset or deduct the amount allegedly
owed to
Tenant pursuant to any claim against Landlord from any rent or other sum
payable
to Landlord. Tenant’s sole remedy for recovering upon such claim against
Landlord shall be to institute an independent action against Landlord. Tenant
shall not seek the consolidation of any such action brought by Tenant with
any
action brought by Landlord hereunder.
10.9.
If
permitted by law, Landlord shall have the right at any time and from time
to
time during the Term to either continue to contract for service from the
current
utility service provider or contract for service from a different company
or
companies providing utility service each such company shall hereinafter be
referred to as an “Alternate Service Provider”. Tenant shall cooperate with
Landlord, the utility service provider, and any Alternate Service Provider
at
all times and, as reasonably necessary, shall allow Landlord, utility service
provider, and any Alternate Service Provider reasonable access to the Property’s
pipes, electric lines, feeders, risers, wiring, and any other machinery within
the Premises. Landlord shall in no way be liable or responsible for any loss,
damage, or expense that Tenant may sustain or incur by reason of any change,
failure, interference, disruption, or defect in the supply or character of
the
utility service furnished to the Premises, or if the quantity or character
of
the utility service supplied by the utility service provider or any Alternate
Service Provider is no longer available or suitable for Tenant’s requirements,
and no such change, failure, defect, unavailability, or unsuitability shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any
of its
obligations under the Lease.
ARTICLE
XI. SIGNS
11.1.
Tenant further agrees that (a) no signs, advertisements or notices shall
be
inscribed, painted or affixed on any part of the outside or inside of the
Premises or Building, except on the directories and doors of offices, and
then
only in such size, color and style as Landlord shall approve; (b) Landlord
has
the right to prohibit any advertisement of Tenant which in Landlord’s opinion
tends to impair the reputation of the Building or its desirability as a Building
for offices or for financial, insurance or other institutions and businesses
of
like nature, and upon written notice from Landlord, Tenant shall refrain
from
and discontinue such advertisement; (c)if any such sign or advertisement
is
nevertheless exhibited by Tenant, Landlord shall have the right to remove
the
same and Tenant shall be liable for any and all expenses incurred by Landlord
in
said removal; (d) Landlord shall have the right to prescribe the weight and
method of installation and position of safes or other heavy fixtures or
equipment and Tenant will not install in the Premises any fixtures, equipment
or
machinery that will place a load upon any floor exceeding the floor load
per
square foot area which such floor was designed to carry; and (e) all damage
done
to the Building by taking in or removing a safe or any other article of Tenant’s
office equipment, or due to its being in the Premises, shall be repaired
at the
expense of Tenant. No freight, furniture or other bulky matter of any
description will be received into the Building or carried in the elevators,
except as approved by Landlord. All moving of furniture, material and equipment
shall be under the direct control and supervision of Landlord, who shall,
however, not be responsible for any damage to or charges for moving same.
Tenant
agrees promptly to remove from the public area adjacent to the Building any
of
Tenant’s merchandise there delivered or deposited. Tenant hereby agrees to
purchase a door sign and directory strips in accordance with Landlord’s sign
specifications.
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ARTICLE
XII. ALTERATIONS
12.1.
Tenant accepts the Premises in its “AS IS” condition. Landlord is under no
obligation to make any structural or other alterations, decorations, additions,
improvements, renovations or other changes (collectively “Alterations”) in or to
the Premises except as set forth in Exhibit B or otherwise expressly provided
in
this Lease.
12.2.
Tenant will not make any Alterations, structural or otherwise, in or to the
Premises or any part thereof nor install any equipment of any kind that will
require any alterations or additions to the use of the water system, heating
system, air conditioning system, ventilation system, electrical system or
plumbing system, without the prior written consent of Landlord. At the time
of
Tenant’s request for Landlord’s consent to such Alterations, Tenant shall
provide Landlord hard-lined architectural drawings and drawings on AUTOCAD
disks. Any Alterations made by Tenant shall be made: (a) in a good, workmanlike,
first-class and prompt manner; (b) using new materials only; (c) by a contractor
and in accordance with plans and specifications approved in writing by Landlord.
(d) in accordance with all applicable legal requirements and with all
requirements of any insurance company insuring the Building or any portion
thereof, including, but not limited to, compliance with Title FIII of The
Americans with Disabilities Act of 1990, as amended; and (e) after completion
of
alterations Tenant shall obtain and deliver to Landlord written, unconditional
waivers of mechanics’ and materialmen’s liens against the Premises and the
Building from all proposed contractors, subcontractors, laborers and material
suppliers for all work and materials in connection with such Alterations.
Landlord’s approval of the Alterations shall create no responsibility or
liability on the part of Landlord for their completeness, design sufficiency
or
compliance with all codes, laws, rules and regulations of governmental agencies
or authorities.
12.3.
It
is distinctly understood that all Alterations, including wall to wall carpeting,
upon the Premises (whether with or without Landlord’s consent), shall, at the
election of Landlord, remain upon the Premises and be surrendered with the
Premises at the expiration of this Lease without disturbance, molestation
or
injury. Tenant will not use any floor adhesive in the installation of any
carpeting. All interior and suite entry door locks shall be keyed to the
Building’s master key. Should Landlord elect that Alterations upon the Premises
be removed upon termination of this Lease or upon termination of any renewal
period hereof, Tenant hereby agrees to cause same to be removed at Tenant’s sole
cost and expense and should Tenant fail to remove the same, then and in such
event Landlord may cause same to be removed at Tenant’s expense and Tenant
hereby agrees to reimburse Landlord for the cost of such removal together
with
any and all damages which Landlord may suffer and sustain by reason of the
failure of Tenant to remove the same.
12.4.
Tenant shall be responsible for causing the Premises to comply with Title
III of
the Americans with Disabilities Act of 1990, as amended (“ADA”). Landlord shall
be responsible for causing the common areas of the Building to comply with
the
ADA; provided, however, if Tenant makes any Alterations to the Premises which
causes the common areas not to comply with the ADA, then Tenant shall be
responsible for the cost of making all Alterations to the common areas of
the
Building required to correct such non-compliance. Tenant and Landlord
acknowledge and agree that Landlord shall have full benefit of all rules,
regulations and guidelines promulgated under the ADA, such as the guidelines
which require a landlord only to make those alterations which are readily
achievable.
ARTICLE
XIII. SUBLETTING AND ASSIGNMENT
13.1.
Tenant shall not assign this Lease or any of Tenant’s rights or obligations
hereunder, or sublet or permit anyone to occupy the Premises or any part
thereof, without Landlord’s prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. No assignment or transfer
of this
Lease may be effected by operation of law or otherwise without Landlord’s prior
written consent. The consent of Landlord to any assignment or subletting
shall
not be construed as a waiver or release of Tenant from liability for the
performance of all covenants and obligations to be performed by Tenant under
this Lease. The transfer, whether a single transfer or multiple transfers,
of
fifty percent (50%) or more of the ownership interests of Tenant within a
twelve
(12) month period shall be deemed equivalent to an assignment or subletting
requiring consent of Landlord. Any attempted assignment or subletting made
without Landlord’s consent shall at the option of Landlord be deemed an Event of
Default under this Lease. Landlord’s acceptance or collection of rent from any
assignee, subtenant or occupant shall not be construed (a) as a consent to
or
acceptance of such assignee, subtenant or occupant as a tenant, (b) as a
waiver
by Landlord of any provision hereof, (c) as a waiver or release of Tenant
from
liability for the performance of any obligation to be performed under this
Lease
by Tenant, or (d) as relieving Tenant or any assignee, subtenant or occupant
from the obligation of obtaining Landlord’s prior written consent to any
subsequent assignment, subletting or occupancy. Tenant hereby assigns to
Landlord any rent due from any assignee, subtenant or occupant of Tenant
as
security for Tenant’s performance of its obligations pursuant to this Lease;
provided, however, Tenant shall have the right to collect such rent as long
as
Tenant is not in Event of Default under the terms of this Lease. Tenant
authorizes each such assignee, subtenant or occupant to pay such rent directly
to Landlord if such assignee, subtenant or occupant receives written notice
from
Landlord specifying that such rent shall be paid directly to Landlord. In
the
event of Event of Default by any assignee of Tenant or any successor of Tenant
in the performance of any of the terms hereof, Landlord may proceed directly
against Tenant without the necessity of exhausting remedies against such
assignee or successor. Landlord may consent to subsequent assignments or
subletting of this Lease or amendments or modifications to this Lease with
assignees of Tenant, without notifying Tenant, or any successor of Tenant,
and
without obtaining its or their consent thereto and such action shall not
relieve
Tenant of liability under this Lease. Tenant shall not mortgage this Lease
without Landlord’s consent, which consent may be granted or withheld in
Landlord’s sole discretion. All restrictions and obligations imposed pursuant to
this Lease on Tenant shall be deemed to extend to any subtenant, assignee
or
occupant of Tenant, and Tenant shall cause such persons to comply with all
such
restrictions and obligations. Tenant shall pay to Landlord a One Thousand
and
00/100 Dollar ($1,000.00) processing fee as well as expenses (including
reasonable attorneys’ fees) incurred by Landlord in connection with Tenant’s
request for Landlord to give its consent to any assignment, subletting,
occupancy or mortgage, whether or not Landlord consents
thereto.
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13.2.
A
corporate Tenant may, with the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed, assign this Lease
to
its parent or subsidiary, provided the same assignee assumes, in full, the
obligations of Tenant under this Lease, and such assignment shall not relieve
Tenant of its obligations hereunder.
13.3.
If
at any time Tenant intends to assign, sublet or otherwise transfer all or
part
of the Premises or this Lease, then Tenant shall give written notice to Landlord
(“Sublease Proposal Notice”) of the area proposed to be assigned or sublet (the
“Proposed Sublet Space”) and the term for which Tenant desires to sublet the
Proposed Sublet Space, the name of the proposed subtenant or assignee and
such
other information as Landlord shall reasonably request.
13.4.
After receipt of Tenant’s Sublease Proposal Notice, Landlord shall also have the
right, in its sole and absolute discretion, in addition to Landlord’s rights in
Section 13.1, to elect: (a) to consent to the proposed sublease or assignment,
(b) to reject the proposed sublease or assignment, (c) to sublease the Proposed
Sublet Space from Tenant for the term for which Tenant has proposed to sublet
such space, or (d) to terminate this Lease with respect to the Proposed Sublet
Space. Landlord shall exercise such right by sending Tenant written notice
within forty-five (45) days after Landlord’s receipt of the Sublease Proposal
Notice. If Landlord elects to sublease the Proposed Sublet Space from Tenant,
such sublease shall be at the same Basic Annual Rent and additional rent
as
Tenant is obligated to pay for such space under this Lease and otherwise
upon
the same terms and conditions as are contained in this Lease, except that
Landlord shall be entitled to sub-sublet the Proposed Sublet Space without
Tenant’s consent and without paying to Tenant any amount in excess of the rent
and other charges payable to Tenant pursuant to its sublease with Landlord.
If
the Proposed Sublet Space does not constitute the entire Premises and Landlord
elects to terminate this Lease with respect to the Proposed Sublet Space,
then
(1) Tenant shall tender the Proposed Sublet Space to Landlord on a date
specified in Landlord’s notice (which date shall not be more than sixty (60)
days after the date of such notice) as if such specified date had been
originally set forth in this Lease as the Expiration Date of the Lease Term
with
respect to the Proposed Sublet Space, and (2) as to all portions of the Premises
other than the Proposed Sublet Space, this Lease shall remain in full force
and
effect except that the Basic Annual Rent payable pursuant to ARTICLE III
shall
be reduced pro rata. Tenant shall pay all expenses of construction required
to
permit the operation of the Proposed Sublet Space separate from the balance
of
the Premises. If the Proposed Sublet Space constitutes the entire Premises
and
Landlord elects to terminate this Lease, then (1) Tenant shall tender the
Premises to Landlord on a date specified in Landlord’s notice (which date shall
not be more than sixty (60) days after the date of such notice), and (2)
the
Lease Term shall terminate on such specified date. Notwithstanding anything
to
the contrary in the foregoing provisions of this Section 13.4, Landlord shall
not have the right to sublease the Proposed Sublet Space or to terminate
this
Lease with respect to the Proposed Sublet Space in the event Tenant proposes
to
assign this Lease to a corporation or other business entity into or with
which
Tenant shall be merged or consolidated, or to which substantially all of
the
assets of Tenant may be transferred, provided that such successor entity
has
assumed in writing all of the obligations and liabilities of Tenant under
this
Lease.
13.5.
In
the event Landlord does not exercise its rights to sublet the Proposed Sublet
Space from Tenant or to terminate this Lease with respect thereto, Tenant
shall
be entitled to seek Landlord’s consent to an acceptable assignee or subtenant
for the Proposed Sublet Space, for a sublease term no longer than that set
forth
in the Sublease Proposal Notice, such consent not to be unreasonably withheld,
conditioned or delayed. Such consent or permission pursuant to Section 13.1
may
be withheld if (a) the subtenant or assignee is of a character or engaged
in a
business which is not in keeping with the standards of Landlord for the
Building, (b) Tenant is in Event of Default under this Lease, (c) the Proposed
Sublet Space is not regular in shape with appropriate means of ingress and
egress and suitable for normal renting purposes, (d) in the reasonable judgment
of Landlord, the assignee or sublessee does not have the financial capacity
or
experience to undertake the obligations of this Lease or the sublease, or
(e)
such a sublease or assignment would violate any term or condition of any
covenant or agreement of Landlord involving the Building, or any other tenant
lease within the Building. In the event such assignment or sublease for the
assignee or subtenant designated in Tenant’s Sublease Proposal Notice (which
assignment/sublease and assignee/subtenant are acceptable to and approved
by
Landlord) has not been executed by Tenant and submitted to Landlord within
one
hundred fifty (150) days from the date of Tenant’s Sublease Proposal Notice,
Tenant shall not be entitled to enter into such assignment or sublease without
first submitting a new Sublease Proposal Notice to Landlord and affording
Landlord an opportunity to exercise its rights as set forth in Section 13.4,
including its subletting or termination rights.
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13.6.
If
any sublease, assignment or other transfer (whether by operation of law or
otherwise and whether consented to or not) provides that the subtenant, assignee
or other transferee is to pay any amount in excess of the rent and other
charges
due under this Lease (except rent or other payments received which are
attributable to the amortization of the cost of leasehold improvements made
to
the sublet or assigned portion of the Premises by Tenant for the subtenant
or
assignee, and other reasonable expenses incident to the subletting or
assignment, including standard leasing commissions), then whether such excess
is
in the form of an increased monthly or annual rent, a lump sum payment, payment
for the sale, transfer or lease of Tenant’s fixtures, leasehold improvements,
furniture and other personal property, or any other form (and if the subleased
or assigned space does not constitute the entire Premises, the existence
of such
excess shall be determined on a pro rata basis), then Tenant shall pay to
Landlord fifty percent (50%) of any such excess as additional rent upon such
terms as shall be specified by Landlord and in no event later than ten (10)
days
after Tenant’s receipt thereof. Tenant expressly waives any right that it might
have to retain such fifty percent (50%) of the excess pursuant to the provisions
of section 365(f) of the Bankruptcy Code. Landlord shall have the right to
inspect and audit Tenant’s books and records relating to any sublease,
assignment or other transfer. Any sublease, assignment or other transfer
shall
be effected on a form approved by Landlord.
13.7.
Any
sublease or assignment shall require Tenant and Subleasee/Assignee to execute
Landlord’s standard Consent to Sublease or Consent to Assignment
document.
ARTICLE
XIV. RIGHT OF ACCESS
14.1.
Landlord, its employees and representatives shall have the right at any time
during the Lease Term, upon reasonable notice (which may be verbal) except
in an
emergency (when no notice shall be required), to enter into and upon any
and all
parts of the Premises during business hours (or, in an emergency, at any
hour)
to (a) view, inspect, secure and clean the Premises, (b) make repairs to
the
Premises or Building, or introduce, replace, repair, alter or make new or
change
existing connections from any fixture, pipes, wires, ducts, conduits, or
other
construction therein, (c) remove, without being held responsible therefor,
placards, signs, lettering, window or door coverings and the like not expressly
consented to or (d) show the Premises to prospective tenants, purchasers
or
lenders; and Tenant shall not be entitled to any abatement or reduction of
rent
by reason thereof, nor shall such be deemed to be an actual or constructive
eviction. Landlord shall have the right to use a portion of the Premises
for all
necessary pipes and wires leading to and from the portions of the Building
not
hereby leased, which will not unreasonably interfere with Tenant’s use of the
Premises. Landlord may, within one hundred and twenty (120) days preceding
the
expiration of the Lease Term, enter the Premises to place and maintain notices
for letting, free from hindrance or control of Tenant. If Tenant shall vacate
the Premises during the last month of the Lease Term, Landlord shall have
the
unrestricted right to enter the Premises after Tenant’s moving to commence
preparations for the succeeding tenant or for any other purpose whatever,
without affecting Tenant’s obligation to pay rent for the full Lease
Term.
ARTICLE
XV. INCREASE IN LANDLORD’S FIRE INSURANCE
15.1.
Tenant will not do or permit anything to be done in the Premises or the Building
or bring or keep anything therein which shall in any way increase the rate
of
fire or other insurance for said Building, or on the property kept therein,
or
obstruct, or interfere with the rights of other tenants, or in any way injure
or
annoy them, or those having business with them, or conflict with the fire
laws
or regulations, or with any insurance policy upon said Building or any part
thereof, or with any statutes, rules or regulations enacted or established
by
the appropriate governmental authority.
ARTICLE
XVI. TENANT’S EQUIPMENT
16.1.
Tenant will not install or operate in the Premises any electrically operated
equipment or other machinery, other than typewriters, calculators, personal
computers, facsimile machines and such other electrically operated office
machinery and equipment normally used in modern offices, without first obtaining
the prior written consent of Landlord, who may condition such consent upon
the
payment by Tenant of additional rent as compensation for any excess consumption
of water and/or electricity as may be occasioned by the operation of said
equipment or machinery. Tenant shall not install any other equipment of any
kind
or nature whatsoever which will or may necessitate any changes, replacements
or
additions to or require the use of the water system, plumbing system, heating
system, air conditioning system, ventilation system or the electrical system
of
the Premises without the prior written consent of Landlord. Business machines
and mechanical equipment which cause noise or vibration that may be transmitted
to the structure of the Building or to any space therein to such a degree
as to
be objectionable to Landlord or to any tenant shall be installed and maintained
by Tenant, at Tenant’s expense, on vibration eliminators or other devices
sufficient to eliminate such noise and vibration.
ARTICLE
XVII. CONDEMNATION
17.1.
If
all or any portion of the Premises or occupancy thereof shall be permanently
taken or condemned by any governmental or quasi-governmental authority for
any
public or quasi-public use or purpose or sold under threat of such a taking
or
condemnation (collectively, “Condemnation”), and such Condemnation shall
materially and adversely affect Tenant’s use of the Premises, then this Lease
shall terminate on the date possession thereof is taken by such authority
and
rent shall be apportioned as of such date. In the event of the Condemnation
of
any portion of the Premises which does not materially and adversely affect
Tenant’s use of the Premises, then this Lease shall continue in full force and
effect as to the part of the Premises not Condemned, except that as of the
date
possession is taken by such authority, Tenant shall not be required to pay
the
Basic Annual Rent with respect to the part of the Premises Condemned.
Notwithstanding anything herein to the contrary, if twenty-five percent (25%)
or
more of the Land or the Building is Condemned, then whether or not any portion
of the Premises is Condemned, Landlord shall have the right to terminate
this
Lease as of the date title vests in such authority.
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17.2.
All
awards, damages and other compensation paid by such authority on account
of such
Condemnation shall belong to Landlord, and Tenant assigns to Landlord all
rights
to such awards, damages and compensation. Tenant shall not make any claim
against Landlord or the authority for any portion of such awards, damages
or
compensation attributable to damage to the Premises, value of the unexpired
portion of the Lease Term, loss of profits or goodwill, leasehold improvements
or severance damages. Tenant may, if allowed by statute, seek such awards
or
damages for moving expenses, loss of profits and fixtures and other equipment
installed by it which do not, under the terms of this Lease, become the property
of Landlord at the termination hereof. Such awards or damages must be made
by a
Condemnation court or other authority and must be separate and distinct from
any
award to Landlord for the Land and Building and shall not diminish any award
of
Landlord.
ARTICLE
XVIII. INSURANCE
18.1.
Landlord agrees that it will keep the Building insured against loss due to
fire
and other property risks included in standard all risk coverage insurance
policies, and covering loss of income from such property risk, or in lieu
thereof, insure the Building against loss or damage as a self
insurer.
18.2.
Throughout the Lease Term, Tenant shall insure the contents of the Premises,
including, without limitation, alterations, decorations, furnishings, fixtures
and equipment used or installed in the Premises by or on behalf of Tenant,
and
the other personal property of Tenant in the Premises, against loss due to
fire
and other property risks included in standard all risk coverage insurance
policies, in an amount equal to the replacement cost thereof and covering
loss
of income from such property risk. All insurance carried by Tenant hereunder
shall be primary and not contributing with any insurance carried by
Landlord.
18.3.
Landlord and Tenant agree that all insurance policies required to be carried
pursuant to Section 18.1 hereof shall either permit or contain an express
waiver
of any right of recovery (by subrogation or otherwise) by the insurance company
against Tenant, and that all insurance policies required to be carried pursuant
to Section 18.2 shall either permit or contain an express waiver of any right
of
recovery (by subrogation or otherwise) by the insurance company against
Landlord, its managing agent and any mortgagee of Landlord. Each party hereby
waives any and every right or cause of action for any and all loss of, or
damage
to, any of its property (whether or not such loss or damage is caused by
the
fault or negligence of the other party or anyone for whom said other party
may
be responsible), which loss or damage is covered by valid and collectible
fire,
extended coverage, “All Risk” or similar policies, maintained by such party or
required to be maintained by such party under this Lease, to the extent that
such loss or damage is recovered under said insurance policies or would have
been recovered if the insurance policies required hereunder had been maintained
as required pursuant to this Lease. Written notice of the terms of said mutual
waivers shall be given to each insurance carrier and said insurance policies
shall be properly endorsed, if necessary, to prevent the invalidation of
said
insurance coverage’s by reason of said waivers.
18.4.
Throughout the Lease Term, Tenant shall obtain and maintain commercial general
liability insurance on an occurrence basis protecting against any liability
occasioned by any occurrence on or about the Premises and containing contractual
liability coverage and business interruption coverage. Such insurance shall
be
initially in minimum amounts of One Million Dollars ($1,000,000) per occurrence
and Two Million Dollars ($2,000,000) general aggregate and shall be for a
minimum term of one (1) year.
18.5.
Tenant shall also maintain throughout the Lease Term, at Tenant’s sole cost and
expense, worker’s compensation in statutory limits.
18.6.
Each of said policies of insurance to be carried by Tenant hereunder shall
name
Landlord and Landlord’s managing agent as an additional insured, and if
requested by the holder of any mortgage or deed of trust against the Building,
shall also name such holder as an additional insured. Each policy shall contain
an endorsement which provides that no cancellation or reduction of coverage
may
be made without first giving Landlord, Landlord’s managing agent and, if named
as an additional insured, the holder of any mortgage or deed of trust on
the
Building, at least thirty (30) days prior written notice of such proposed
action. All insurance policies required under this Lease shall be issued
by
insurance companies licensed to do business in the jurisdiction wherein the
Building is located with a then current Xxxxxx X. Best Company, Inc. general
policy holder’s rating of “A” or better and a financial size category of Class
XII or higher and which have been in business for the past five (5) years
and
which are otherwise reasonably satisfactory to Landlord. On or before the
Lease
Commencement Date, and thereafter not less than fifteen (15)
days
prior to the expiration dates of said policy or policies, Tenant shall provide
copies of policies or certificates of insurance (Accord 27) evidencing the
coverage’s required by this ARTICLE XVIII. The aforesaid insurance limits may be
reasonably increased from time to time by Landlord.
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ARTICLE
XIX. FIRE OR CASUALTY
19.1.
If
the Premises or the Building are totally or partially damaged or destroyed
thereby rendering the Premises totally or partially inaccessible or unusable,
then Landlord shall diligently repair and restore the Premises and the Building
to substantially the same condition they were in prior to such damage or
destruction; provided, however, that if (a) in Landlord’s reasonable judgment
such repair and restoration cannot be completed within two hundred seventy
(270)
days after the occurrence of such damage or destruction (taking into account
the
time needed for effecting a satisfactory settlement with any insurance company
involved, removal of debris, preparation of plans and issuance of all required
governmental permits) or (b) twenty percent (20%) or more of the Premises
is
damaged and less than six (6) months would remain of the Term or any renewal
thereof upon completion of the repairs, then Landlord shall have the right,
at
its sole option, to terminate this Lease as of the sixtieth (60th) day after
such damage or destruction by giving written notice of termination to Tenant
within forty-five (45) days after the occurrence of such damage or
destruction.
19.2.
If
this Lease is terminated pursuant to Section 19.1 above, then all rent shall
be
apportioned (based on the portion of the Premises which is usable after such
damage or destruction) and paid to the date of termination. If this Lease
is not
terminated as a result of such damage or destruction, then until such repair
and
restoration of the Premises are substantially complete, Tenant shall be required
to pay the Basic Annual Rent only for the portion of the Premises that is
usable
while such repair and restoration are being made. Landlord shall bear the
expenses of repairing and restoring the Premises and the Building; provided,
however, that Landlord shall not be required to repair or restore the contents
of the Premises, including without limitation, alterations, decorations,
furnishings, fixtures and equipment used or installed in the Premises by
or on
behalf of Tenant and any other personal property of Tenant. Tenant shall
not be
entitled to any compensation or damages from Landlord for loss of the use
of the
whole or any portion of the Premises or for any inconvenience or annoyance
occasioned by any such damage, repair or restoration.
19.3.
Notwithstanding anything herein to the contrary, Landlord shall not be obligated
to restore the Premises or the Building and shall have the right to terminate
this Lease if (a) the holder of any mortgage fails or refuses to make insurance
proceeds available for such repair and restoration, (b) zoning or other
applicable laws or regulations do not permit such repair and restoration,
or (c)
the cost of repairing and restoring the Building would exceed fifty percent
(50%) of the replacement value of the Building, whether or not the Premises
is
damaged or destroyed, provided the leases of all other tenants in the Building
are similarly terminated.
19.4.
Notwithstanding anything herein to the contrary, all injury or damage to
the
Premises or the Building resulting from the fault or negligence of Tenant,
it’s
employees, agents, contractors or invitees shall be repaired by Tenant at
Tenant’s expense and Rent shall not xxxxx.
ARTICLE
XX. DEFAULTS AND REMEDIES
20.1.
Each of the following shall constitute an Event of Default: (a) Tenant’s failure
to make any payment of the Basic Annual Rent, additional rent or any other
sum
within ten (10) days of written notice from Landlord or Landlord’s attorney of
Tenant’s failure to make such payment on such payment’s due date; (b) Tenant’s
failure to take possession of the Premises within thirty (30) calendar days
after delivery thereof to Tenant; (c) Tenant’s violation or failure to perform
or observe any other covenant or condition of this Lease for a period of
thirty
(30) days following Landlord’s or Landlord’s attorney’s written notice thereof
to Tenant; (d) Tenant’s abandonment or vacation of the Premises; (e) an Event of
Bankruptcy as specified in ARTICLE XXI with respect to Tenant, any general
partner of Tenant (a “General Partner”) or any guarantor; (f) Tenant’s
dissolution or liquidation; or (g) Tenant’s failure to execute documents as
required in Sections 25.1 or 33.1 herein.
20.2.
If
there shall be an Event of Default, including an Event of Default prior to
the
Lease Commencement Date, then Landlord shall have the right, at its sole
option,
to terminate this Lease. In addition, with or without terminating this Lease,
Landlord may reenter the Premises, terminate Tenant’s right of possession and
take possession of the Premises. The provisions of this Section shall operate
as
a notice to quit, any other notice to quit or of Landlord’s intention to reenter
the Premises being hereby expressly waived. If necessary, Landlord may proceed
to recover possession of the Premises under and by virtue of the laws of
the
jurisdiction in which the Building is located, or by such other proceedings,
including reentry and possession, as may be applicable. If Landlord elects
to
terminate this Lease and/or elects to terminate Tenant’s right of possession,
then everything contained in this Lease to be done and performed by Landlord
shall cease, without prejudice, however, to Landlord’s right to recover from
Tenant all rent and other sums due hereunder through the Lease Expiration
Date
as defined in Section 2.1. No such re-entry or taking possession of the Premises
by Landlord shall be construed as an election on its part to terminate this
Lease unless a written notice of such intention be given to Tenant signed
by
Landlord. Whether or not this Lease and/or Tenant’s right of possession is
terminated, Landlord may, but shall not be obligated to, relet the Premises
or
any part thereof, alone or together with other premises, for such rent and
upon
such terms and conditions (which may include concessions, free rent and
alterations of the Premises) as
Landlord, in its sole discretion, may determine, but Landlord shall not be
liable for, nor shall Tenant’s obligations be diminished by reason of,
Landlord’s failure to relet the Premises or collect any rent due upon such
reletting. Whether or not this Lease is terminated, Tenant nevertheless shall
remain liable for any Basic Annual Rent, additional rent or damages which
may be
due or sustained by reason of such Event of Default, and all costs, fees
and
expenses (including without limitation reasonable attorneys’ fees, brokerage
fees, expenses incurred in placing the Premises in rentable condition and
tenant
finish necessitated to obtain the new tenant) incurred by Landlord in pursuit
of
its remedies and in renting the Premises to others from time to time.
Notwithstanding any such reletting without termination, Landlord may at any
time
thereafter elect to terminate this Lease for such previous breach. Tenant
shall
also be liable to Landlord for additional damages, which shall be, at Landlord’s
options, either (a) or (b) below:
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(a)
an
amount equal to the Basic Annual Rent and additional rent which would have
become due during the remainder of the Lease: Term, less the amount of rent,
if
any, which Landlord receives during such period from others to whom the Premises
may be rented (other than any additional rent payable as a result of any
failure
of such other person to perform any of its obligations), which damages shall
be
computed and payable in monthly installments, in advance, on the first day
of
each calendar month following Tenant’s Event of Default and continuing until the
date on which the Lease Term would have expired but for Tenant’s Event of
Default. Separate suits may be brought to collect any such damages for any
month(s), and such suits shall not in any manner prejudice Landlord’s right to
collect any such damages for any subsequent month(s) or Landlord may defer
any
such suit until after the Lease Expiration Date, in which event the cause
of
action shall be deemed not to have accrued until the Lease Expiration Date
;
or
(b)
an
amount equal to the present value (as of the date of Landlord’s election to
accelerate) of the Basic Annual Rent and additional rent which would have
become
due during the remainder of the Lease Term, less the rent received by Landlord
under any reletting of the Premises, which damages shall be payable to Landlord
in one lump sum on demand; provided that Landlord has relet the Premises
which
reletting may occur at any time up to the Lease Expiration Date. For purposes
of
this subsection (2), present value shall be competed by discounting at a
rate
equal to one (1) whole percentage point above the discount rate then in effect
at the Federal Reserve Bank of New York.
20.3.
Tenant waives any right of redemption, re-entry or restoration of the operation
of this Lease under any present or future law, including any such right that
Tenant would otherwise have if Tenant shall be dispossessed for any
cause.
20.4.
If
Tenant fails to perform any covenant or observe any condition to be performed
or
observed by Tenant hereunder or acts in violation of any covenant or condition
hereof or fails to make any payment to any third party, Landlord may, but
shall
not be required to on behalf of Tenant, perform such covenant and/or take
such
steps, including entering the Premises, as may be necessary or appropriate,
in
which case Landlord shall have the right to proceed immediately and all costs
and expenses incurred by Landlord in so doing, including reasonable legal
fees,
shall be paid by Tenant to Landlord upon demand, plus interest thereon at
the
rate per annum equal to the greater of (a) eighteen percent (18%) per annum;
provided, however such rate is not usurious or (b) the highest non-usurious
rate
permitted under the laws of the jurisdiction where the Building is located,
from
the date of expenditure(s) by Landlord, as additional rent. Landlord’s
proceeding under the rights reserved to Landlord under this Section shall
not in
any way prejudice or waive any rights Landlord might otherwise have against
Tenant by reason of Tenant’s Event of Default
20.5.
Landlord’s rights and remedies set forth in this Lease are cumulative and in
addition to Landlord’s other rights and remedies at law or in equity, including
those available as a result of any anticipatory breach of this Lease. Landlord’s
exercise of any such right or remedy shall not prevent the concurrent or
subsequent exercise of any other right or remedy. Landlord’s delay or failure to
exercise or enforce any of Landlord’s rights or remedies or Tenant’s obligations
shall not constitute a waiver of any such rights, remedies or
obligations.
ARTICLE
XXI. BANKRUPTCY
21.1.
The
following shall be Events of Bankruptcy under this Lease: (a) Tenant, a
guarantor or a General Partner becoming insolvent, as that term is defined
in
Title 11 of the United States Code (the “Bankruptcy Code”), or under the
insolvency laws of any state (the “Insolvency Laws”); (b) appointment of a
receiver or custodian for any property of Tenant, a guarantor or a General
Partner, or the institution of a foreclosure or attachment action upon any
property of Tenant, a guarantor or a General Partner; (c) filing of a voluntary
petition by Tenant, a guarantor or a General Partner under the provisions
of the
Bankruptcy Code or Insolvency Laws; (d) filing of an involuntary petition
against Tenant, a guarantor or a General Partner as the subject debtor under
the
Bankruptcy Code or Insolvency Laws, which either (i) is not dismissed within
sixty (60) days of filing, or (ii) results in the issuance of an order for
relief against the debtor; or (e) Tenant, a guarantor or a General Partner
making or consenting to an assignment for the benefit of creditors or a
composition of creditors.
ARTICLE
XXII. LANDLORD’S LIEN
22.1.
Tenant grants to Landlord a lien upon and a security interest in, as security
for the performance of Tenant’s obligations, Tenant’s existing or hereafter
acquired personal property, inventory, furniture, fixtures, equipment and
other
assets which are located in the Premises or used in connection with the
business to be conducted in the Premises (hereinafter collectively called
“Personal Property”). Such lien shall be in addition to all rights of distraint
available under applicable law. Within fifteen (15) days after Landlord’s
request, Tenant shall execute, acknowledge and deliver to Landlord a financing
statement and any other document submitted to Tenant evidencing or establishing
such lien and security interest. During any period Tenant is in Event of
Default
under this Lease, Tenant shall not sell, transfer or remove from the Premises
such Personal Property. Landlord may at any time after Event of Default in
the
payment of rent or Event of Default of other obligations, seize and take
possession of any and all Personal Property belonging to Tenant which may
be
found in and upon the Premises. If Tenant fails to redeem the Personal Property
so seized, by payment of whatever sum may be due Landlord under and by virtue
of
the provisions of this Lease, then and in that event, Landlord shall have
the
right, after twenty (20) days’ written notice to Tenant of its intention to do
so, to sell such Personal Property so seized at public or private sale and
upon
such terms and conditions as to Landlord may appear advantageous, and after
the
payment of charges incident to such sale, including storage charges if any,
apply the proceeds thereof to the payment of any balance due to Landlord
on
account of rent or other obligations of Tenant pursuant to this Lease. In
the
event there shall then remain in the hands of Landlord any balance realized
from
the sale of said Personal Property as aforesaid, the same shall be paid over
to
Tenant. The exercise of the foregoing remedy by Landlord shall not relieve
or
discharge Tenant from any deficiency owed to Landlord that Landlord has the
right to enforce pursuant to any other provisions of this
Lease.
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ARTICLE
XXIII. LEGAL FEES
23.1.
If,
as a result of any breach or Event of Default in the performance of any of
the
provisions of this Lease (whether or not such Event of Default is later cured),
Landlord or Tenant uses the services of an attorney in order to secure
compliance with such provisions or recover damages therefor, or to terminate
this Lease or evict Tenant, or if Landlord or Tenant is required to defend
itself or the terms of this Lease and Landlord or Tenant uses the services
of an
attorney then Tenant or Landlord shall reimburse the prevailing party upon
demand for any and all attorneys’ fees and expenses so incurred by the
prevailing party with such amounts being additional rent in the event Landlord
is the prevailing party.
ARTICLE
XXIV. DAMAGE
24.1.
All
injury to the Premises or the Building caused by moving the property of Tenant
into, on, or out of, the Building or the Premises and all breakage done by
Tenant, or the agents, servants, employees and visitors of Tenant, shall
be
repaired by Tenant, at the expense of Tenant. In the event that Tenant shall
fail to do so, then Landlord shall have the right to make such necessary
repairs, alterations and replacements (structural, nonstructural or otherwise)
and any charge or cost so incurred by Landlord shall be paid by Tenant as
additional rent, with the monthly installment of rent next becoming due or
thereafter falling due under the terms of this Lease. This provision shall
be
construed as an additional remedy granted to Landlord and not in limitation
of
any other rights and remedies which Landlord has or may have in said
circumstances.
24.2.
All
Personal Property of Tenant in the Premises or in the Building shall be at
the
sole risk of Tenant and Tenant agrees to obtain insurance for such Personal
Property as provided in Section 18.2 of this Lease. Landlord shall not be
liable
for any accident to or damage to the Personal Property of Tenant resulting
from
the use or operation of elevators or of the heating, cooling, electrical
or
plumbing apparatus. Landlord shall not, in any event, be liable for damages
to
the Personal Property resulting from water, steam or other causes. Tenant
hereby
expressly releases Landlord from any liability incurred or claim by reason
of
damage to Tenant’s Personal Property.
ARTICLE
XXV. SUBORDINATION
25.1.
This Lease is subject and subordinate at all times to all ground or underlying
leases, all mortgages and/or deeds of trust, all covenants, restrictions,
casements, and encumbrances which may now or hereafter affect such leases
or the
real property of which the Premises form a part, and all future renewals,
modifications, consolidations, replacements and extensions thereof. This
clause
shall be self-operative and no further instrument of subordination shall
be
required by any mortgagee or trustee. In confirmation of such subordination,
Tenant shall promptly execute and deliver without charge any certificate
or
document that Landlord may request in a form which recognizes this Lease
and is
otherwise reasonably acceptable to Tenant within ten (10) days following
Landlord’s written request. Tenant hereby constitutes and appoints Landlord as
Tenant’s attorney-in-fact to execute any such certificate or certificates for
and on behalf of Tenant. Provided, however, that notwithstanding the foregoing,
the party secured by any such deed of trust shall have the right to recognize
this Lease, and in the event of any foreclosure sale under such deed of trust,
this Lease shall continue in full force and effect at the option of the party
secured by such deed of trust or the purchaser under any such foreclosure
sale,
in which event Tenant shall attorn to such party secured by such deed of
trust
or purchaser as Landlord under this Lease. Upon such attornment such party
secured by such deed of trust or purchaser shall not be (a) bound by any
payment
of rent or additional rent more than one (1) month in advance, (b) bound
by any
amendment of this Lease made without the consent of the holder of the deed
of
trust existing as of the date of such amendment, (c) liable for damages for
any
breach, act or omission of any prior landlord, or (d) subject to any offsets
or
defenses which Tenant might have against any prior landlord; provided, however,
that after succeeding to Landlord’s interest, such party secured by such deed of
trust or purchaser shall perform, in accordance with the terms of this Lease,
all obligations of Landlord arising after the date of acquisition of title
to
the Building. Tenant covenants and agrees that it will, at the written request
of the party secured by any such deed of trust, execute,
acknowledge and deliver any instrument that has for its purpose and effect
the
subordination of said deed of trust to the lien of this Lease.
-15-
25.2.
At
the option of any landlord under any ground or underlying lease to which
this
Lease is now or may hereafter become subject or subordinate, Tenant agrees
that
neither the cancellation nor termination of such ground or underlying lease
shall by operation of law or otherwise, result in cancellation or termination
of
this Lease or the obligations of Tenant hereunder, and Tenant covenants and
agrees to attorn to such Landlord or to any successor to Landlord’s interest in
such ground or underlying lease subject to the attornment provisions set
forth
in Section 25.1 above. In that event, this Lease shall continue as a direct
lease between Tenant herein and such landlord or its successor.
ARTICLE
XXVI. TENANT HOLDOVER
26.1.
This Lease shall terminate on the Lease Expiration Date pursuant to the terms
of
this Lease without the necessity of notice from either Landlord or Tenant.
Any
holding over by Tenant after the Lease Expiration Date without Landlord’s
written consent as provided in Section 26.2 shall be an unlawful detainer
and
Tenant shall be subject to immediate eviction. During such hold over, all
the
terms and conditions set forth in this Lease shall apply except that Tenant
shall pay to Landlord Basic Annual Rent equal to twice the Basic Annual Rent
in
effect during the last month of the Lease Term (“Hold Over Fee”). In addition to
paying to Landlord the Hold Over Fee, if Tenant fails to surrender and vacate
the Premises on the Lease Expiration Date, Tenant shall indemnify and hold
Landlord harmless from and against any and all loss, liability, damages and
expenses (including without limitation, attorneys’ fees, the costs of
investigation and settlement of any claims) sustained or incurred by Landlord
on
account of or resulting from such failure, including, without limitation,
claims
made by any succeeding tenant of all or any part of the Premises or the loss
by
Landlord of the rent from any succeeding tenant of all or any part of the
Premises, Landlord may simultaneously collect the Hold Over Fee and pursue
any
and all remedies against Tenant to regain possession of the Premises and
without
prejudice to Landlord’s right to recover possession, and Tenant’s payment of the
Holdover Fee shall not be deemed to permit Tenant to retain possession of
the
Premises after the Lease Expiration Date or other termination of the
Lease.
26.2.
If,
with the written consent of Landlord, Tenant or any party claiming by, through
or under Tenant remains in possession of the Premises, or any part thereof,
after the Lease Expiration Date, Landlord shall treat such holding over by
Tenant as the creation of a month-to-month tenancy, subject to all the terms,
covenants and conditions set forth in this Lease insofar as the same are
applicable to a month-to- month tenancy, except that Tenant shall pay a Basic
Annual Rent equal to twice the Basic Annual Rent in effect during the last
month
of the Lease Term. Tenant shall give to Landlord at least thirty (30) days
prior
written notice from the first day of the month of any intention to quit said
Premises, and Tenant shall be entitled to the same thirty (30) days prior
written notice to quit said Premises, except in the event of non-- payment
of
rent in advance or of any breach of any other covenant by Tenant, in which
event
Tenant shall not be entitled to any notice to quit, the usual thirty (30)
days
notice to quit being hereby expressly waived.
ARTICLE
XXVII. WAIVER AND NOTICE
27.1.
No
waiver of any breach of any covenant, condition or agreement herein contained
shall operate as a waiver of the covenant, condition or agreement itself,
or of
any subsequent breach thereof. No provision of this Lease shall be deemed
to
have been waived by Landlord unless such waiver shall be in writing signed
by
Landlord. If Landlord waives in writing any Event of Default, then such waiver
shall not be construed as a waiver of any subsequent, similar Event of Default
or of any covenant or condition set forth in this Lease except as to the
specific circumstances described in such written waiver. No payment by Tenant
or
receipt by Landlord of a lesser amount than the monthly installments of rent
herein stipulated shall be deemed to be a payment in full of the stipulated
rent
nor shall any endorsement or statement on any check or any letter accompanying
any check or payment as rent be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord’s right to
recover the balance of such rent or pursue any other remedy in this Lease
provided. Landlord shall have the right to apply Tenant’s payments to any
balance or arrearage Tenant has outstanding. Landlord’s re-entry and acceptance
of keys shall not be considered an acceptance of a surrender of this
Lease.
ARTICLE
XXVIII. WAIVER OF JURY TRIAL
28.1.
LANDLORD, TENANT, AND ALL GUARANTORS AND GENERAL PARTNERS OF TENANT AGREE
TO AND
THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANTS USE OR OCCUPANCY OF SAID PREMISES
AND/OR PREMISES ANY CLAIM OF INJURY OR DAMAGE, AND/OR ANY STATUTORY
REMEDY.
28.2.
Tenant consents to service of process and any pleading relating to any such
action at the Premises; provided, however, that nothing herein shall be
construed as requiring such service at the Premises. Landlord, Tenant, all
guarantors and all General Partners of Tenant waive any objection to the
venue
of any action filed in any court situated in the jurisdiction in which the
Building is located and waive any right under the doctrine of forum non
conveniens or otherwise, to transfer any such action filed in any such court
to
any other court.
-16-
ARTICLE
XXIX. LIMITATION OF LIABILITY OF LANDLORD
29.1.
Pursuant to Article 3 of the Declaration of Trust of Washington Real Estate
Investment Trust dated November 18, 1960, as amended, nothing in this Lease
shall be construed in any event whatsoever to impose any personal liability
upon
the trustees, officers or the shareholders of the Washington Real Estate
Investment Trust, as the Landlord herein, in contract, tort, or otherwise.
Anything contained in this Lease to the contrary notwithstanding, Tenant
agrees
that Tenant shall look solely to Landlord’s equity in the Building for the
collection of any judgment (or other judicial process) requiring the payment
of
money by Landlord in the event of any Event of Default or breach by Landlord
with respect to any of the terms and provisions of this Lease to be kept,
observed and performed by Landlord subject, however, to the prior rights
of any
ground or underlying landlords or any mortgagee of all or any part of the
Building or the Premises, and no other assets of Landlord shall be subject
to
levy, execution or other judicial process for the satisfaction of Tenant’s
claim.
ARTICLE
XXX. NOTICES
30.1.
All
notices required hereunder by either party to the other shall be sent by
recognized overnight courier with receipt therefor (such as Federal Express)
or
by certified mail. Notices to Landlord shall be sent to Washington Real Estate
Investment Trust (“WRIT”), 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: Asset Manager. Notices to Tenant shall be sent
to the
Premises or: __
.Tenant
hereby elects domicile at the Premises for the purpose of
all
notices,
writs of summons, or other legal documents, or process, in any suit, action,
or
proceeding that Landlord may undertake under this Lease.
ARTICLE
XXXI. CERTAIN RIGHTS RESERVED BY LANDLORD
31.1.
Landlord hereby reserves to itself and its successors and assigns the following
rights (all of which are hereby consented to by Tenant): (a) to change the
street address and/or name of the Building and/or the arrangement and/or
location of entrances, passageways, doors, doorways, corridors, elevators,
stairs, toilets, or other public parts of the Building, (b) to control and
operate the public portions of the Building and the public facilities, as
well
as facilities furnished for the common use of the tenants, in such a manner
as
it deems best for the benefit of tenants generally, and to erect, use and
maintain pipes and conduits in and through the Premises, and (c) to grant
to
anyone the exclusive right to conduct any particular business or undertaking
in
the Building. Landlord may exercise any or all of the foregoing rights without
being deemed to be guilty of an eviction, actual or constructive, or a
disturbance or interruption of the business of Tenant or of Tenant’s use or
occupancy of the Premises.
ARTICLE
XXXII. BROKER
32.1.
Except as set forth herein, Landlord and Tenant each represent and warrant
to
one another that except as set forth herein neither of them has employed
any
broker, agent or finder in carrying on the negotiations relating to this
Lease.
Landlord shall indemnify and hold Tenant harmless, and Tenant shall indemnify
and hold Landlord harmless, from and against any claim or claims for brokerage
or other commissions arising from or out of any breach of the foregoing
representation and warranty by the respective indemnitors.
ARTICLE
XXXIII. ESTOPPEL CERTIFICATE
33.1.
Tenant shall from time to time, within ten (10) days after Landlord shall
have
requested the same of Tenant, execute, acknowledge and deliver to Landlord
a
written instrument in recordable form and otherwise in such form as required
by
Landlord (a) certifying that this Lease is in full force and effect and has
not
been modified, supplemented or amended in any way (or, if there have been
modifications, supplements or amendments thereto, that it is in full force
and
effect as modified, supplemented or amended and stating such modifications,
supplements and amendments); (b) stating the rent payable and dates to which
the
rent and other charges hereunder have been paid by Tenant; (c) stating whether
or not to the best knowledge of Tenant, Landlord is in Event of Default in
the
performance of any covenant, agreement or condition contained in this Lease,
and
if so, specifying each such Event of Default of which Tenant may have knowledge;
(d) stating the Lease Commencement Date and Lease Expiration Date, including
any
optional renewals; and (e) stating any other fact or certifying any other
condition reasonably requested by Landlord or requested by any mortgagee
or
prospective mortgagee or purchaser of the Building or Land or of any interest
therein. In the event that Tenant shall fail to return a fully executed copy
of
such certificate to Landlord within the foregoing ten (10) day period, then
Tenant shall be deemed to have approved and confirmed all of the terms,
certifications and representations contained in such certificate, and Tenant
irrevocably authorizes and appoints Landlord as its attorney-in-fact to execute
such certificate on behalf of Tenant. Any such statement delivered pursuant
hereto may be relied upon by any owner of the Building or the Land, any
mortgagee or prospective mortgagee or purchaser of the Building, Land or
any
interest therein or any prospective assignee of any mortgagee.
ARTICLE
XXXIV. RULES AND REGULATIONS
34.1.
Tenant will:
-17-
(a)
not
strip, overload, damage or deface the Premises or hallways, stairways,
elevators, parking facilities or other approaches thereto, of said Building,
or
the fixtures therein or used therewith, nor permit any hole to be made in
any of
the same;
(b)
not
suffer or permit any trade or occupation to be carried on or use made of
the
Premises which shall be unlawful, noisy, offensive, or injurious to any person
or property, or such as to increase the danger of fire or affect or make
void or
voidable any insurance on said Building, or which may render any increased
or
extra premium payable for such insurance, or which shall be contrary to any
law
or ordinance, rule or regulation from time to time established by any public
authority;
(c)
not
move any furniture or equipment into or out of the Premises except at such
times
as Landlord may from time to time designate;
(d)
not
place upon the interior or exterior of the Building or any window or any
part
thereof or door of the Premises any placard, sign, lettering, window covering,
drapes or any other item which Landlord in its sole discretion deems unsuitable,
except such and in such place and manner, as shall have been first approved
in
writing by Landlord;
(e)
park
vehicles only in the area from time to time designated by Landlord; Landlord
reserves the right to determine the number of parking spaces that shall be
used
by Tenant;
(f)
not
install a television antenna or air conditioning on the roof, in the windows
or
upon the exterior of the Building and will only install an antenna within
the
Premises (including any space on the exterior of the Building, such as a
balcony, patio, yard or garden area that is leased exclusively to Tenant
within
Tenant’s exclusive use and control, and which is not a common area or restricted
access area) subject to the terms of a separate agreement to be entered into
between Landlord and Tenant containing Landlord’s rules and regulations
regarding antennas.
(g)
use
and allow to be used all plumbing within the Premises and the Building only
for
the purpose for which it was designed, and no foreign substance of any kind
shall be thrown therein;
(h)
not
use any space in the Building for the sale of goods to the public at large
or
for the sale at auction of goods or property of any kind;
(i)
not
place additional locks or bolts of any kind on any of the doors or windows,
and
shall not make any change in any existing lock or locking mechanism therein,
without Landlord’s prior written consent;
(j)
not
use the Premises for lodging or sleeping or for any immoral or illegal
purpose;
(k)
not
construct, maintain, use or operate within the Premises any electrical device,
wiring or apparatus in connection with a loud speaker system or other sound
system without Landlord’s prior written consent and Tenant shall not construct,
maintain, use or operate any such loud speaker or sound system outside of
the
Premises;
(l)
not
obstruct or encumber or use for any purpose other than ingress and egress
to and
from the Premises any sidewalk, entrance, passage, court, elevator, vestibule,
stairway, corridor, hall or other part of the Building not exclusively occupied
by Tenant;
(m)
comply with all rules or regulations from time to time established by the
appropriate insurance rating organization;
(n)
comply with all rules or regulations from time to time established by Landlord
for the operation and maintenance of the Building; and
(o)
not
manufacture any commodity therein, without the prior written consent of
Landlord; and
(p)
not
smoke nor permit its employees, agents, customers, invitees or contractors
to
smoke in the Building except in the areas, if any, designated by the Landlord
as
smoking areas.
34.2.
It
is understood that employees of Landlord are prohibited as such from receiving
any packages or other articles delivered to the Building for Tenant and that
should any such employee receive any such packages or articles, he or she
in so
doing shall be the agent of Tenant and not of Landlord.
ARTICLE
XXXV. FINANCIAL STATEMENTS
35.1.
Tenant agrees to provide to Landlord within fourteen (14) days of Landlord’s
request, the most recent audited (or certified to be true and correct by
the
President and Chief Financial Officer) annual financial statements of Tenant,
including balance sheets, income statements, and financial notes as well
as (1)
the names of all Tenant’s shareholders and their ownership interests at the time
thereof, provided Tenant’s shares are not publicly traded; (2) the state in
which Tenant is incorporated; (3) the location of Tenant’s principal place of
business; (4) information regarding a material change in the corporate structure
of Tenant including without limitation, a merger or consolidation; and (5)
any
other information regarding Tenant’s ownership interests that Landlord
reasonably requests (“Statements”). Tenant consents that Landlord may release
the Statements to Landlord’s trustees, officers, employees, subsidiaries,
affiliates, lenders, advisors, joint venture partners, or potential purchasers
of the Building for the purposes of evaluating Tenant’s financial condition with
respect to performance under the Lease or to any third party pursuant to
any
order of any governmental agency or court. Landlord agrees to keep the
Statements confidential and not to release the Statements to third parties
except as set forth herein.
-18-
ARTICLE
XXXVI. RELOCATION
36.1.
Landlord may, at its option during the Term hereof, relocate Tenant from
the
present Premises in the Building to premises of comparable or greater size
with
comparable or greater views, at no cost to Tenant; provided, however, Landlord
shall give Tenant sixty (60) days advance written notice of its intention
to
relocate Tenant; and provided, further, Landlord shall pay the cost of moving
Tenant to the new location, all costs of comparable build-out, the relocation
of
cabling and telephone service and reasonable costs for stationary and business
cards. Upon the delivery of the new space (“Relocation Space”) to Tenant, the
Relocation Space shall become the Premises; and Landlord shall prepare, and
Tenant shall execute, an amendment to this Lease confirming the lease to
Tenant
of the Relocation Space. This Lease shall continue in full force and effect
as
to the new Relocation Space as the Premises.
ARTICLE
XXXVII. QUIET ENJOYMENT
37.1.
If
Tenant pays all the rent herein reserved and performs and observes all of
the
other terms, covenants and conditions of this Lease on Tenant’s part to be
performed and observed hereunder, Tenant shall, during the Term, peaceably
and
quietly have, hold and enjoy the Premises without molestation or hindrance
by
Landlord or any party claiming through or under Landlord, subject to the
provisions of this Lease.
ARTICLE
XXXVIII. MEDICAL WASTE
38.1.
For
purposes of this Lease, “Medical Waste” shall include any and all waste commonly
produced by medical and surgical care facilities, including, but not limited
to,
blood and blood products, body parts and tissue, laboratory wastes, discarded
cultures, specimens, waste products, vaccines and associated items, and used
hypodermic needles, syringes, scalpel blades and similar equipment or devices
and all other medical wastes listed at 42 U.S.C § 6992 (1988) and any
regulations promulgated thereunder as the same may be amended from time to
time
(the “Medical Waste Laws”). Tenant shall be solely responsible for disposing of
all Medical Waste so as to protect waste handlers and the public from exposure
and such disposal shall comply with the requirements set forth in the Medical
Waste Laws. Tenant’s disposal of Medical Waste and removal thereof from the
Premises and the Building shall be provided by Tenant’s contractors, at Tenant’s
sole cost and expense. Under no condition shall Tenant store Medical Waste
in
the corridors or other common areas of the Building or deposit any Medical
Waste
in trash receptacles serviced by the Building’s char service provided by
Landlord or in the dumpster servicing the Building or in or on any other
part of
the Building. Tenant shall store such items, whether for pick up, delivery
or
disposal, in a location designated by landlord. Tenant shall, at Tenant’s sole
cost and expense, comply with the requirements of any Federal or (state)
law,
regulation, rule, order or directive, now or hereafter in effect which regulates
the disposal of Medical Waste, whether or not such obligation is thereby
imposed
upon Tenant or Landlord.
ARTICLE
XXXIX. MISCELLANEOUS
39.1.
No
Representations.
Tenant
acknowledges that neither Landlord nor any broker, agent or employee of Landlord
has made any representations or promises with respect to the Premises or
the
Building except as herein expressly set forth, and no rights, privileges,
easements or licenses are being acquired by Tenant except as herein expressly
set forth.
39.2.
No
Partnership.
Nothing
contained in this Lease shall be deemed or construed to create a partnership
or
joint venture of or between Landlord and Tenant, or to create any other
relationship between the parties hereto other than that of landlord and
tenant.
39.3.
Authority.
Landlord and Tenant covenant each for itself that each has full right, power
and
authority to enter into this Lease upon the terms and conditions herein set
forth. If Tenant signs as a corporation, each of the persons executing this
Lease on behalf of Tenant does hereby covenant and warrant that Tenant is
a duly
authorized and existing corporation, qualified to do business in the state
in
which the Building is located, that the corporation has full right and authority
to enter into this Lease, and that each and both persons signing on behalf
of
the corporation were authorized to do so; and that the name and address of
Tenant’s resident agent in the jurisdiction where the Building is located is , .
Tenant shall advise Landlord in writing if the name and address of its resident
agent is changed during the Term hereof.
39.4.
Additional
Rent.
All
other costs and expenses which Tenant assumes or agrees to pay to Landlord
pursuant to this Lease shall be deemed to be “additional rent” and, in the event
of nonpayment thereof, Landlord shall have all the rights and remedies provided
for in the case of nonpayment of rent, including assessment of interest and
late
fees.
39.5.
Force
Majeure.
If
Landlord is in any way delayed or prevented from performing any of its
obligations under this Lease due to fire, acts of God, governmental act or
failure to act, strike, labor dispute, inability to procure materials or
any
other cause beyond Landlord’s reasonable control (whether similar or dissimilar
to the foregoing events), then the time for performance of such obligation
shall
be excused for the period of such delay or prevention.
-19-
39.6.
No
Recording.
This
Lease shall not be recorded in any office legally established for the purpose
of
giving public notice of real estate records and any attempt to do so may
be
treated by Landlord as an Event of Default under this Lease. In the event
Tenant
does record this Lease or any memorandum thereof, Tenant, by such act,
irrevocably constitutes and appoints Landlord as its special attorney-in-fact
to
execute any and all documents required to remove the Lease or any memorandum
thereof from the public records.
39.7.
Governing
Law.
This
Lease is governed under the laws of the jurisdiction in which the Building
is
located.
39.8.
Captions.
Section
headings are used for convenience and shall not be considered when construing
this Lease.
39.9.
Severability.
If any
term or provision of this Lease or the application thereof to any person
or
circumstances shall to any extent be invalid or unenforceable, the remainder
of
this Lease, or the application of such term or provision to persons or
circumstances other than those to which it is invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Lease shall
be
valid and be enforceable to the fullest extent permitted by law.
39.10.
Tenant
Liability.
If two
or more individuals, corporations, partnerships or other persons (or any
combination of two or more thereof) shall sign this Lease as Tenant, the
liability of each such individual, corporation, partnership or other persons
to
pay the rent and perform all other obligations hereundcr shall be deemed
to be
joint and several.
39.11.
Time
is of the Essence.
Time is
of the essence with respect to each and every provision of this
Lease.
39.12.
Entire
Agreement.
This
Lease contains the entire agreement of the parties in regard to the Premises
and
this Lease and no representations, inducements or agreements, oral or otherwise,
between the parties not contained in this Lease shall be of any force or
effect.
This Lease may not be amended, modified or changed in whole or in part in
any
manner other than by an agreement in writing duly signed by both parties
hereto.
39.13.
Benefit
and Burden.
The
provisions of this Lease shall be binding upon, and shall inure to the benefit
of, the parties hereto and each of their respective heirs, executors,
administrators, successors, and assigns. Landlord may freely assign its interest
hereunder.
39.14.
Gender
and Number.
Feminine or neuter pronouns shall be substituted for those of the masculine
form, and the plural shall be substituted for the singular number, in any
place
or places herein in which the context may require such substitution or
substitutions. Landlord herein for convenience has been referred to in the
neuter form.
39.15.
Survival.
Tenant’s liabilities existing as of the expiration or earlier termination of the
Lease Term shall survive such expiration or earlier termination.
39.16.
Submission
of Lease.
The
submission of this Lease for examination does not constitute a reservation
of or
an option for lease, and the same shall not be effective as a lease or otherwise
until execution and delivery by both Landlord and Tenant.
39.17.
Should any provision of this Lease require judicial interpretation, it is
agreed
that the court interpreting or considering same shall not apply the presumption
that the terms hereof shall be more strictly construed against a party by
reason
of the rule or conclusion that a document should be construed more strictly
against the party who itself or through its agent prepared the same, it being
agreed that all parties hereto have participated in the preparation of this
Lease and that legal counsel was consulted by each party hereto (or opportunity
for such legal consultation afforded to each party) before the execution
of this
Lease.
39.18.
Tenant agrees to pay to Landlord upon execution of this Lease One Hundred
Sixteen Thousand Eight Hundred Twenty-One and 25/100 Dollars ($116,821.25).
This
payment represents Tenant’s cost of tenant improvements.
-20-
IN
WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed
under
seal by a duly authorized officer, intending to be legally bound hereby,
as of
the day and year first above written. The covenants of Tenant are joint and
several obligations of each party signing as Tenant, and, when the parties
signing as Tenant are partners, shall be the obligation of the firm and of
the
individual members thereof.
|
Witness/Attest:
|
TENANT:
THORIUM
POWER, INC.
|
|
|
 |
By:
 (Seal) |
||
|
(Signature
Here)
|
|||
|
Name:
Seth ______
|
|||
|
Title:
President
|
|||
|
Social
Security Number: ###-##-####
|
|||
|
Federal
Tax Identification Number: 00-0000-000
|
|||
|
Witness/Attest:
|
LANDLORD:
WASINGTON
REAL ESTATE INVESTMENT TRUST
|
||
 |
By:
 (Seal) |
||
|
(Signature
Here)
|
|||
|
Name:
Xxxxxx X. Xxxxxx, Xx.
|
|||
|
Title:
President
|
|||
-21-
Exhibit
B:
Tenant
Improvements Specifications
|
A.
|
Landlord
shall perform the following building improvements to the Premises
at
Landlord’s sole cost and expense in a xxxxxxx-like manner and in
accordance with applicable building codes and as shown on the
attached
Exhibit
A - Floor Plan
(“Floor Plan”):
|
1.
Demolition
of walls, ceiling, counters, cabinets and sink as required to provide the
layout, as shown on the attached Floor Plan. Patch and repair all exposed
surfaces as required due to demolition work and in preparation for application
of new finishes as specified. New fire sprinkler installations to be exposed
up
flow type sprinkler heads.
2. Provide
walls to be taped, blocked, and sanded, 1/2”
gypsum
wallboard on both sides of 21/2”
metal
studs, from floor up to 8’-2” A.F.F. on all interior walls except for the
Bathroom walls, as shown on the attached Floor Plan. Demising partitions
go up
to the structure. Tenant separation walls go up to the underside of the
structure & have a 1 hr. fire rating.
3.
Provide
walls to be taped, blocked, and sanded, 1/2”
gypsum
wallboard on both sides of 21/2”
metal
studs with 11/2”
thermafiber
sound attenuation blankets, from floor up to the underside of the structure,
for
the Bathroom as shown on the attached Floor Plan.
4.
Provide
gypsum wallboard ceiling, painted at 8’-2” A.F.F. in Bathroom and Shower, Closet
and Kitchen. All other ceilings to remain exposed to underside of deck
above.
5.
Provide
& install ‘Erase-Rite’ low gloss dry marker surface from 4” A.F.F. to 8’-2”
A.F.F. on gypsum board walls as shown on the Floor Plan. Provide & install
aluminum marker trays @ 36” A.F.F - length of ‘Erase-Rite’ marker
surface. Marker surface and marker trays by Walltalkers, 0000 Xxxxxxx
Xxxxxxx, Xxxxxxxx, XX, 00000 - (000) 000-0000.
6.
Existing
3’-0” x 7’-0” red oak suite entrance door, solid core wood veneer, corridor side
stained with Minwax - Fruitwood, from the corridor, Tenant side painted
high-gloss white as shown on the Floor Plan. With #9453 06 A 605 mortised
lockset - “E” keyway cylinder lever hardware, 605 Bright Brass finish for
the exterior of the suite and 625 Bright Chrome for the interior of the
suite by
Schlage. Door closer will be 625 Bright Chrome finished. Door is to be hung
in a painted metal frame to remain. Provide and electric strike for
door.
7.
Provide
eight (8) new 3’-0” x 8’-0” solid core paint grade interior doors, with Athens -
D Series, 625 Bright Chrome finish Cylindrical entrance/office lever hardware
locksets by Schlage. Door is to be hung in a painted metal frame.
8.
Provide one (1) new 3’-0” x 8’-0” solid core paint grade interior door, with
Athens - D Series, 625 Bright Chrome finish Cylindrical bathroom/privacy
lever
hardware set by Schlage. Door is to be hung in a painted metal
frame.
9.
Provide
one (1) new 7’-2” x 8’-0” oversized sliding solid core paint grade interior wood
door. Door is to be hung on exposed track.
10. Provide
and install floor mounted doorstop w/ hook for all the interior doors of
the
suite. Doorstop mode’s #446 & #450, BHMA625 Bright Chrome finish by
Ives.
11.
Provide
and install 2” x 4” (approximate) aluminum or steel frame and 1/2”
thick
tempered safety glass walls in painted metal frame @ 6” A.F.F. to 8’-2” A.F.F.
for all walls separating Reception, Waiting and Corridor from Conference,
Office
1, Office 2 and Office 3 as shown on the Floor Plan. Glass to be set in
white or
clear neoprene gaskets. Metal and glass walls to have horizontal mullions
to
provide three equal bands of glass. See Floor Plan for proposed
mullion-spacing.
12.
Provide
two (2) colors of Xxxx Market Street ‘Copper Hill’, 30-oz. cut pile on new 40
oz. hair and jute padding (Diplomatic 40) throughout suite unless otherwise
noted. Carpet colors to be 50% ‘Sage Leaves’ - #04311 and 50% ‘Adobe Sand’ -
#04710, alternating in three foot wide stripes, running east/west throughout
the
suite.
13.
Provide
4” high vinyl cove base throughout with corner moldings - #CB12 ‘White’ by
Nafco/Azrock/Domco.
14.
Provide
polished Thassos Marble on floors and walls of the entire Bathroom. Marble
on
wall to be from floor to 8’-2” A.F.F. Provide lead pan and Thassos marble curb
(ADA compliant)_ or shower stall w/ chromed poles at the shower stall and
between the shower and toilet areas for the Bathroom as shown on the Floor
Plan.
Tenant will provide shower curtain to be installed by Landlord
1901
PENNSYLVANIA AVENUE-Thoriun Power - Suite 202/204 - Page 1 of
3
Spec
No.: 2187-02 Date: 07-17-2001
15.
Provide
two coats of paint by Xxxxx throughout the premises. #5820W - Acrylic Vinyl
Flat
latex paint for all ceiling - Ceiling, pipes, ducts, chases, etc... - Ceiling
to
be left exposed to underside of the structure. #5820W - Glossy paint for
all
window & glass frames. #5980 V - Eggshell paint for all gypsum wallboards.
#5990W - Glossy paint for all doors. __paint fan coil units with high-gloss
light grey - color spec to be provided by Tenant.
16.
Provide
& install building standard mini-line blinds with baked enamel finish for
all exterior windows within the; Tenant’s suite.
17.
Provide
& install roll-down shades - Series 3000 ‘Spanish Grey’ by Sol-R-Control
Shadecloths from DFB Sales, Inc. - (000) 000-0000 for all exterior
windows.
18.
At
the
location shown on the Floor Plan, provide a two compartment stainless steel
sink
- #LMR-3322 by Elkay with LK2433 faucet and handspray and hot and cold
water in
a 7’-0” long plastic; laminate countertop with base cabinets below and 36” high
wall cabinets above. Cabinets will be “Rutland II” (white) by XXXXXXXX. Plastic
laminate will be ‘Mouse’ - #928-58 by Formica w/ 1½” flat aluminum edging &
4” flat aluminum back splash. Provide space below for a 24” compact-type
refrigerator. Provide the following appliances by GE - color white: Microwave
-
model #JEM31WA, Garbage Disposal - model #GFC720F, Dishwasher - model
#GSM2130FWW. Provide a 24” wide under-counter refrigerator w/ icemaker -Sterling
series - model #61RF, stainless steel finish by Marvel or equal. Provide
a
duplex receptacle for the refrigerator, one for the microwave, and a
ground-fault circuit-interrupt duplex receptacle at counter-height for
the
coffee maker.
19.
Provide
& install a 13’..5” +/- linear feet L shape plastic laminate countertop w/
bracing @ every 4’-0” - top of counter @ 34” A.F.F & three (3) 12”
deep melamine shelves on adjustable standard and brackets. Plastic
laminate will
be ‘Mouse’ - #928- 58 by Formica w/1½” flat aluminum edging & 4” flat
aluminum backsplash.
20.
Provide
barrier free wall hung lavatory ‘Lucerne’, model #0356.041 w/ single hole chrome
faucet ‘Ceramix” - model #2000.110.002, and barrier free ‘Cadet II 17” H
Elongated toilet’#221 6.170 by American Standard for the Bathroom as shown on
the Floor Plan.
21.
Provide
and install a 36” grab bar for behind the toilet and a 42” grab bar for the side
of the toilet in the Bathroom as shown on the Floor Plan. Models # B-6106.99
x
36 & #B-6106.99 x 42 satin finish by Bobrick.
22. Provide
and install 6-jet chrome, model # S-2252-AF-BP showerhead w/ thermostatic
valve
by Xxxxxxxx Anystream for the Bathroom’s shower as shown on the Floor
Plan.
23.
Landlord
will install Tenant provided toilet accessories - grab bars, toilet paper
holder, soap/shampoo holder, towel bar, & mirror.
24.
Provide
one (I) fire extinguisher by Ambassador for under the Kitchen cabinet
sink.
25.
Provide
the following electrical and/or mechanical in the suite, if existing, then
to
remain, or provide new to make up the difference as follows:
a.
Provide
& install receptacles as shown on the attached Electrical Floor Plan. No
outlets, or tenant telephone and computer receptacles will be permitted
on
building exterior window walls. New outlet covers are to have stainless
steel
finish.
b. One
(1)
single pole light switch for each interior room. New switch cover plates
are to
have stainless steel finish.
c.
Provide
& install low-voltage track and transformers on 18” stem, color - white by
Halo in each room within the suite as shown on the attached Reflected Ceiling
Plan. Provide allowance for 60 (sixty) gimble-ring type light fixtures,
model #
TH234 round - H type from Electric Lighting & Electric - 0-000-000-0000 or
equal.
d.
Provide
& install down lights for the Bathroom, Kitchen, & Closet as shown on
the Reflected Ceiling Plan.
e.
Exit
lights and emergency lights - edge-lit semi recessed wall and ceiling mounted
w/
battery packs by McPhilpen or equal as required by code, tied to a
generator.
1901
PENNSYLVANIA AVENUE-Thoriun Power - Suite 202/204 - Page 2 of
3
Spec
No.: 2187-02 Date: 07-17-2001
f.
Rework
existing HVAC ductwork as required in each room or area so that there is
a
minimum of 1 supply and 1 return in each typical room and provide fire
dampers
if required by code. Ductwork to remain exposed.
g.
Provide
louvered grills at openings to return air plenum in corridor walls, above
the
corridor ceiling. Louvered grills to be painted to match adjacent wall
surfaces.
h.
Landlord
will cooperate with the Tenant’s telephone and computer companies with its
installation of Tenant’s lines, jacks and equipment.
i.
Any
new
sprinkler installation should be done using recessed heads.
j.
Tenant
will confirm the Landlord will all of the locations for all of the above
mentioned new item a. and b.
|
B.
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Except
as otherwise set forth in Paragraph A above, Tenant, at its own
cost, will
be responsible for all other additional improvements to the Premises
including, but not limited to ceiling, wall, floor and window
coverings,
lighting, fixtures, and other
equipment.
|
|
C.
|
Tenant
shall furnish the Landlord its electric and telephone locations
as well as
all other selections required by the Tenant (i.e. paint, carpet,
cove
base) no later than five (5) days after execution of this Lease.
Any delay
to the improvements to be performed by the Landlord outlined
in this
Exhibit B for any reason caused by Tenant shall be considered
a “Tenant
Delay” such as: 1) Delays in time caused as a direct result of
modifications to the floor plan and/or specifications as described
in this
Exhibit B. 2) Additional items required above and beyond the
scope of
Exhibit A or B for the Premises after lease execution. 3) Failure
to make
selections in a timely manner. 4) Delays caused by the Tenant’s architect,
contractor or other consultants. 5) Tenant’s failure to grant Landlord or
its agents or contractors timely access to the Premises. 6) Any
other
delay or stoppage of construction requested or caused by Tenant.
In the
event of any such Tenant Delay, the Lease Commencement Date shall
be the
date of delivery of the Premises, minus the total number of days
of any
Tenant Delay. A deadline delivery date by the Landlord, if one
is
specified in the Lease, shall be extended by the total number
of days of
any such Tenant Delay.
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| Signed by: | ||
|
Tenant:
|
Landlord:
|
|
 |
W R I T | |
|
Company Name
 |
|
|
| Signature | Xxxxxx X. Xxxxxx, President and CEO | |
| Seth G____, President | ||
| Name, Title | ||
| August 2, 2001 | ||
| Date |
1901
PENNSYLVANIA AVENUE-Thoriun Power - Suite 202/204 - Page 3 of
3
Spec
No.: 2187-02 Date: 07-17-2001
EXHIBIT
C
MEMORANDUM
OF LEASE COMMENCEMENT DATE
Pursuant
to that certain Lease, (hereinafter, the Lease) entered into between
Washington
Real Estate Investment Trust,
as
Landlord, (hereinafter Landlord) and Thorium
Power Inc.,
as
Tenant (hereinafter Tenant), dated August 14, 2001, related to that certain
space (defined in the Lease as the Demised Premises) in that certain Building
located at 0000 Xxxxxxxxxxxx Xxxxxx, Xxxxxx 000 and 204, NW Washington,
D.C.
20006, Landlord and Tenant hereby agree that for all purposes under the
Lease,
all work has been substantially completed in accordance with the Lease
and the
Lease Commencement Date is December 4th, 2001 and the Rent Commencement
Date and
Lease Expiration Date shall be as defined in the Lease.
IN
WITNESS THEREOF, Landlord and Tenant have executed this MEMORANDUM OF LEASE
COMMENCEMENT DATE this 4th day of December, 2001.
|
WITNESS:
|
LANDLORD:
|
|
 |
By:
 |
|
|
Title:
XXXXX X. XXXXXXXXXX
|
||
|
MANAGING
DIRECTOR - LEASING
|
|
WITNESS:
|
TENANT:
|
|
 |
By:
 |
|
|
Title:
Vice President
|
