Exhibit 10.58
NN LEASE FORM 123194
PROJECT North Point
LENDER APP. _____
Rev. 1-24-95
Rev. 7-25-96
LEASE AGREEMENT
THIS LEASE is made as of the 14th day of August, 1996 by and between NORTH
POINT ASSOCIATES LIMITED PARTNERSHIP, a Virginia limited partnership
(hereinafter referred to as "Landlord") and COMMONWEALTH SCIENTIFIC CORPORATION,
a Virginia corporation, (hereinafter referred to as "Tenant").
WITNESSETH:
In consideration of the mutual agreement hereinafter set forth, the
parties do hereby mutually agree as follows:
1. Premises. Landlord does hereby lease to Tenant and Tenant does hereby
lease from Landlord, for the term and upon the conditions hereinafter provided,
approximately 4,250 square feet of space (hereinafter referred to as the
"Demised Premises") commonly known as 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 within the North Point office building complex (the building and
land being hereinafter referred to as the "Property"), together with a license
hereinafter described to the non-exclusive use, in common with others, of such
parking spaces and other facilities designed for common use as may be installed
by Landlord. The Demised Premises are outlined in red on the plan attached
hereto marked as Exhibit A and incorporated herein by reference, and shall be
deemed to be the total square footage described herein, regardless of actual
measurement.
2. Term. (a) The Demised Premises are leased for a term (hereinafter
referred to as the "Term") commencing on the 15th day of September, 1996 (or as
soon thereafter as Landlord shall have made the Demised Premises available for
the Tenant's use and occupancy) and ending on the 14th day of September, 2001,
unless the term shall sooner cease or expire as hereinafter provided.
(b) Omitted.
(c) The taking of possession of the Demised Premises shall be deemed
an acceptance of the same by Tenant.
(d) After the lease commencement date, upon request of either party,
Landlord and Tenant shall promptly execute, acknowledge and deliver to one
another a written instrument certifying the lease commencement date and
expiration date.
(e) If Landlord is unable to deliver possession of the Demised
Premises to Tenant by reason of the holding over or retention of possession by
any tenant or occupant, the lease commencement date shall be extended for such
period of time as may be reasonably necessary to enable Landlord to evict such
tenant or occupant and to deliver possession of the Demised Premises to Tenant.
3. Rental. (a) Tenant shall pay as rent (hereinafter referred to as
"Rent") for the Demised Premises the sum of Forty Thousand Three Hundred Eighty
Dollars ($40,380.00.00) per annum, payable in equal monthly installments of
Three Thousand Three Hundred Sixty Five Dollars ($3,365.00), the first
installment payable on the execution of this Agreement and the remaining
installments payable in advance on the first day of each and every month
beginning October 1, 1996 at the office of Landlord herein designated (or at
such other place as Landlord may designate in a notice to Tenant), without prior
demand therefor and without any set off, deduction or counterclaim whatsoever.
4. Additional Rent. (a) Tenant shall pay Landlord as additional rent
(hereinafter referred to as "Additional Rent") its pro rata share (as
hereinafter defined) of Taxes and Assessments and Common Area Maintenance
Expenses (as hereinafter defined).
(b) For purpose of this Lease:
(i) pro rata share shall mean six and two tenths percent
(6.2%) representing the ratio that the area of the Demised Premises bears to the
total rentable area in the building.
(ii) "Taxes and Assessments" shall mean all taxes and
assessments and governmental charges (including personal property and real
estate taxes), whether federal, state, county or municipal, and whether by
taxing districts or authorities presently taxing the Property or by others
subsequently created, and any other taxes and assessments (including franchise
taxes) attributable to the Property or its operation, whether or not directly
paid by Landlord, excluding however, federal and state taxes on income, unless
such income taxes replace real estate taxes. Taxes and Assessments shall be the
amount due in cash for any year and shall not be determined on an accrual or
fiscal year basis. It is agreed that Tenant shall be responsible for ad valorem
taxes on its personal property.
(iii) "Common Area Maintenance Expenses" shall mean the cost
of maintenance and operation of the common areas of the Property, which shall
include without limitation the costs of insuring the Property for all hazard
loss and liability coverage, and the cost and upkeep of all parking and common
areas, removal of litter and debris from the common areas (excluding, however,
tenant trash dumpster service, which shall be the responsibility of each
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respective tenant), maintenance and utility expense of any common area lighting,
snow removal, landscaping and any other similar expense.
(c) Landlord shall endeavor to give to Tenant on or before the first
day of April of each year a statement prepared by Landlord's certified public
accountant of the increase in the Additional Rent payment by Tenant hereunder,
but failure by Landlord to give such statement by said date shall not constitute
a waiver by Landlord of his right to require an increase in Additional Rent.
Upon the commencement of the Lease, Tenant shall pay with its Rent in advance in
monthly installments the Additional Rent based upon the Landlord's budget for
such Costs of Taxes and Assessments and Common Area Maintenance Expenses for
that calendar year. At the commencement of the next calendar year, the Tenant
shall pay an amount equal to 110% of the Additional Rent payable each month of
the preceding calendar year, which amount shall be used as an estimate for said
current year. If the actual Costs of Taxes and Assessments and Common Area
Maintenance Expenses exceeds in any calendar year the budget estimate of the
Landlord, then upon receipt of a statement from Landlord, Tenant shall pay a
lump sum equal to its pro rata share of such total amount of the Costs of Taxes
and Assessments and Common Area Maintenance Expenses, less the total of the
monthly installments of estimated Costs of Taxes and Assessments and Common Area
Maintenance Expenses paid in previous calendar year for which comparison is then
being made; and the estimated monthly installments to be paid for the next year
following said comparison year, shall be adjusted to reflect 110% of such actual
amount in the manner set forth above. If in any year the Tenant's share of
direct expenses shall be less than the preceding year, then upon receipt of
Landlord's statement, any other payment made by Tenant on the monthly
installment basis provided above shall be credited toward the next monthly Rent
falling due and the estimated monthly installments of Taxes and Assessments and
Common Area Maintenance Expenses to be paid shall be adjusted to reflect such
lower amount for the most recent comparison year. Upon termination of this
Lease, any money owed by one party to the other shall be promptly paid
(d) Should this Lease commence or terminate at any time other than
the first day of a calendar year, the cost adjustment referred to in Paragraphs
4(a), 4(b) and 4(c) shall be calculated for the commencement or termination year
on a pro rata basis. Tenant shall only pay the cost adjustment for the calendar
days during which Tenant leases the Demised Premises.
(e) Each statement provided by Landlord pursuant to this paragraph
shall be conclusive and binding upon Tenant unless fifteen (15) days after
receipt of the statement, Tenant shall notify Landlord that it disputes the
correctness of the statement, specifying the respects in which the statement is
claimed to be incorrect. Tenant shall then have the right to request that
Landlord provide, at Tenant's expense, an audit of its books and records
relating to the statement. Pending determination of the dispute, Tenant shall
pay within ten (10) days from notice any amounts due from Tenant in accordance
with the statement, but such payment shall be without prejudice to Tenant's
position.
5. Rent Adjustment. (a) In addition to the Rent and Additional Rent
hereinabove set forth, it is understood and agreed that the basic monthly Rent
of $3,365.00______ hereinabove set forth shall be increased each subsequent
lease year following the first lease year during the Term
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of this Lease on the first day of each such lease year which is hereby
designated September 15, by an amount (hereinafter, the "Annual Increase" and
which shall be deemed to be Rent herein) measured by 30% of any increase in the
United States Bureau of Labor Statistics, Consumer Price Index for All Urban
Wage Earners, All Items for Washington, D. C. SMSA (1967 = 100) (hereinafter
referred to as the "Index"). Such Annual Increase, if any, shall be computed as
follows:
The basic monthly Rent shall be multiplied by a fraction, the
numerator of which shall be the most recently published monthly
Index preceding the first day of the lease year for which such
annual adjustment is to be made, and the denominator of which
fraction shall be the corresponding monthly Index immediately
preceding the commencement date of the term of this Lease. This will
yield an "adjusted basic monthly Rent". The basic monthly Rent shall
be subtracted and the difference multiplied by 30%; which shall be
deemed the monthly Annual Increase to be added to the basic monthly
Rent.
(b) If such Index shall be discontinued with no successor or
comparable successor Index, the parties shall attempt to agree upon a substitute
formula. If the parties are unable to agree upon a substitute formula, then the
matter shall be determined by arbitration in accordance with the rules of the
American Arbitration Association then prevailing with the understanding that it
is the intent of the parties that the Rent shall be adjusted based on the
components for the current Index to the extent possible.
6. Past Due Rent and Late Charges. If Tenant shall fail to pay, when the
same is due and payable, any Rent or any additional Rent, or any other amounts
or charges, such unpaid amounts shall bear interest from the due date thereof to
the date of payment as hereafter provided. In addition, Tenant shall pay to
Landlord, as a late charge, four percent (4%) of any payment required to be made
by Tenant which is more than five (5) days late.
7. Use of Demised Premises. (a) Tenant may use and occupy the Demised
Premises solely for purposes of general office, fabrication and assembly,
engineering, research and development, testing and repair, water processing,
storage of materials, and machine shop use subject to, and in accordance with
all other provisions of this Lease and all applicable zoning and other
governmental regulations. Tenant shall not abandon or substantially abandon the
Demised Premises. Tenant shall not obstruct, interfere, or conflict with, the
rights of other tenants, or conflict with the fire laws or regulations, or with
any insurance policy upon the Property or any part thereof, or with any
statutes, rules or regulations now existing or subsequently enacted or
established by local, state or federal governments, not shall Tenant use or
permit the Demised Premises, or any part thereof, to be used for any disorderly,
unlawful or extra hazardous purposes, nor for any purpose other than hereinabove
specified.
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(b) The Tenant shall not manufacture, store, install, discharge,
release, discard, incinerate, burn or otherwise use, introduce or dispose of any
of the following substances on the Property, in the Demised Premises, into or
through the sewer, drainage system, ground, or the air:
(i) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act of 1976, as amended from time to time, and
regulations promulgated thereunder;
(ii) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended from
time to time, and regulations promulgated thereunder;
(iii) any "hazardous waste" or "hazardous substance" as may be
defined by any applicable local, county, state, commonwealth or other federal
law, as amended from time to time, and regulations promulgated thereunder;
(iv) asbestos or asbestos containing material;
(v) polychlorinated biphenyls in concentrations greater than
50 parts per million;
(vi) any other material or substance, whether solid, gaseous
or liquid, the presence of which is prohibited by any law similar to those set
forth in this Subsection or otherwise addressing environmental or health
matters.
(c) Notwithstanding subparagraph (b) above, nothing herein shall
preclude Tenant from conducting operations and using and disposing of substances
and materials in the normal course of its business in accordance with both
federal law and the hazardous waste permits issued and maintained with the City
of Alexandria, shown on Exhibit B, annexed hereto and incorporated herein,
provided that such substances and materials have been expressly approved by the
Landlord, which approval shall be granted in its sole and absolute discretion.
All substances used in or upon the Demised Premises shall be delivered, used,
removed, and disposed of in accordance with all applicable federal, state and
local laws. The Tenant shall indemnify the Landlord and any lender secured by
the Demised Premises for any damages, cost or expense, including attorney fees,
incurred as a result of the breach of the Tenant's covenant in this Paragraph 7.
8. Common Areas. All common areas and facilities not within the Demised
Premises, which Tenant may be permitted to use and occupy, are to be used and
occupied under a revocable license, and if the amount of such areas shall be
diminished, Landlord shall not be subject to any liability nor shall Tenant be
entitled to any compensation or diminution or abatement of Rent, nor shall such
diminution of such areas be deemed constructive or actual eviction.
9. Parking. Tenant shall have the right during normal business hours to
the use of its pro rata share of parking spaces on the Property. All automobile
parking areas shown on the plans for the Property shall be under the sole and
exclusive control of the Landlord. Use by all
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tenants, their officers, agents, employees and visitors, shall be subject to
reasonable rules for the use thereof which may from time to time be promulgated
by Landlord, including, but not limited to, rules designating areas for employee
parking, assignment of specific spaces to any tenant, controlling of ingress and
egress, locating and arranging spaces, and generally maintaining the parking lot
in the manner, in Landlord's discretion, as is consistent with the use of the
areas by all tenants. Landlord shall have the right to grant to any tenant an
exclusive revocable license to the use of certain parking spaces, and the Tenant
shall have the right to use only those parking spaces on the Property
specifically assigned to the Tenant or designated for common use.
10. Omitted.
11. Subletting and Assignment. Tenant shall not sublet the Demised
Premises or any part thereof or transfer possession or occupancy thereof to any
person, firm or corporation or transfer or assign this lease without the prior
written consent of the Landlord, which shall not be unreasonably withheld, and
subject to Landlord's right to sublet hereinafter described, nor shall any
subletting or assignment hereof be effected by operation of law or otherwise
than by the prior written consent of the Landlord. If Tenant is a corporation,
any transfer of a majority of Tenant's issued and outstanding capital stock
shall be deemed an assignment under this paragraph. If Tenant is a partnership,
any transfer of any interest in the partnership or other change in the
composition of the partnership which results in a change in the management of
Tenant from the person(s) managing the partnership on the date hereof shall be
deemed an assignment under this paragraph. In the event Tenant desires to assign
this Lease or sublet all or any portion of the Demised Premises, Tenant shall
give to Landlord thirty (30) days written notice of Tenant's intention so to do.
Within thirty (30) days after receipt of said notice, Landlord shall have the
right to sublet the Demised Premises from Tenant at the same Rent and Additional
Rent stipulated herein, regardless of the rental rate that Tenant may otherwise
be able to obtain upon assignment or subletting to others. In the event Landlord
has not exercised its right to sublet the Demised Premises as provided above in
this paragraph, Tenant may assign this Lease or sublet all or a portion of the
Demised Premises as set forth in the notice after first obtaining the written
consent of Landlord, which consent may be withheld for reasonable cause. If
Tenant does not so assign or sublet within sixty (60) days of the original
notice to Landlord pursuant to this paragraph, then Tenant shall again be
required to comply with the notice provisions hereof, and Landlord shall again
have the right to sublet. The consent by Landlord to any assignment, transfer or
subletting to any party shall not be construed as a waiver or release of Tenant
from the terms of any covenant or obligation under this Lease, nor shall the
collection or acceptance of Rent from any such assignee, transferee, subtenant
or occupant constitute a waiver or release of Tenant of any covenant or
obligation contained in this Lease, nor shall any such assignment or subletting
be construed to relieve Tenant from giving Landlord said thirty (30) days notice
or from obtaining the consent in writing of Landlord to any future assignment or
subletting. In the event that Tenant defaults hereunder, Tenant hereby assigns
to Landlord the rent due from any subtenant of Tenant and hereby authorizes each
such subtenant to pay said rent directly to Landlord.
12. Upkeep of Demised Premises and Surrender. (a) Tenant shall keep the
Demised Premises and the fixtures and equipment therein in clean, safe and
sanitary condition, shall take good care
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thereof, and shall suffer no waste or injury thereto. Tenant shall make all
repairs to the Demised Premises caused by any negligent act or omission of
Tenant, or its employees or invitee.
(b) Tenant shall provide at its expense (i) periodic maintenance,
including the replacement of filters as often as may be necessary, to all base
building heating, ventilating and air conditioning equipment, and (ii) servicing
of such equipment by a qualified service contractor at least twice a year
(spring and fall) in accordance with manufacture's maintenance standards.
(c) The Landlord shall have the right to install a security light
upon the exterior of the Demised Premises and to connect it to the Tenant's
electrical service. In such event Tenant at its expense shall provide electric
current to such fixture.
(d) Tenant shall maintain, replace and repair any plate glass in or
about the walls, doors or windows of the Demised Premises.
(e) Tenant shall at the expiration or other termination of the Term
of this Lease, surrender and deliver up the Demised Premises, broom clean, in
the same order and condition as the same now is or shall be in at the
commencement of the Term hereof, ordinary wear and tear excepted. Upon such
termination of this Lease, Landlord shall have the right to reenter and resume
possession of the Demised Premises.
13. Alterations. (a) Tenant shall not make any alterations, installations,
changes, replacements, additions or improvements (structural or otherwise) in or
to the Demised Premises or any part thereof without the prior written consent of
Landlord.
(b) The Tenant shall provide the Landlord in timely manner with
complete working drawings of any improvements or alterations within the Demised
Premises approved by the Tenant. Any such improvements or alterations shall be
constructed in a reasonable period of time after receipt of such working
drawings by the Landlord at the expense of Tenant, unless the Landlord expressly
waives its right to perform such construction. Any revision or modification to
the approved drawings after commencement of construction shall be grounds for a
reasonable extension of the period of construction within the Demised Premises.
In the event that the Tenant shall fail to provide drawings which it has
approved in sufficient time to permit completion of construction within the
Demised Premises prior to the lease commencement date, the lease commencement
date shall not be extended, and Tenant shall take possession of the Demised
Premises and commence rental payments as otherwise provided herein, without
abatement of any kind, even though construction may not be complete, nor an
occupancy permit issued.
(c) It is expressly understood that all alterations, installations,
or improvements, including wall-to-wall carpet, upon or within the Demised
Premises (whether with or without the Landlord's consent), shall remain upon the
Demised Premises and shall be surrendered with the Demised Premises at the
expiration of the Lease without disturbance, molestation or injury, or, at the
election of the Landlord shall be removed by the Tenant at its cost prior to the
date of lease termination. Should Landlord elect that alterations,
installations, changes, replacements, additions to or improvements made by
Tenant without the Landlord's
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consent upon the Demised Premises be removed upon termination of this Lease,
Tenant hereby agrees to cause the same to be removed at Tenant's sole cost and
expense and to restore the Demised Premises to its original condition 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 the Tenant to remove the
same, which cost and damages shall be deemed to be Additional Rent.
(d) In the event Landlord shall permit the Tenant to make any
alterations, said alterations shall be performed in a good and workmanlike
manner in accordance with all applicable legal requirements.
(e) If any mechanic's lien is filed against the Demised Premises or
the Property for work or material claimed to have been done for, or furnished
to, Tenant, such mechanic's lien shall be discharged by Tenant within ten (10)
days thereafter, at Tenant's sole cost and expense by payment thereof or posting
such bond or paying such amount as will effect a release of such lien. If Tenant
shall fail to discharge or obtain the release of any such mechanic's lien,
Landlord may, at its option, discharge or release the same and treat the cost
thereof as Additional Rent payable with the monthly installment of Rent next
becoming due; and such discharge or release by Landlord shall not be deemed to
waive the default of Tenant in not discharging or releasing the same. Tenant
shall indemnify and hold Landlord and the holders of any mortgages or deeds of
trust on the Property harmless from and against any and all expenses, liens,
claims or damages to person or property which may or might arise by reason of
the making of any alterations.
14. Floor Loading. Landlord shall have the right to prescribe the weight,
method of installation and position of heavy fixtures or equipment. Tenant shall
not install in the Demised Premises any fixtures, equipment or machinery that
shall place a load upon any floor exceeding the floor load per square foot area
which said floor was designed to carry. Tenant agrees that all damage done to
the Property by taking in or removing article of Tenant's equipment, or due to
its being in the Demised Premises shall be repaired at the expense of Tenant.
Tenant agrees promptly to remove from the public area any of Tenant's property
there delivered or deposited.
15. Tenant's Equipment. (a) Tenant shall not install any equipment of any
kind or nature whatsoever which may necessitate any changes, replacements or
additions to, or in the use of the water, heating, air conditioning, plumbing or
electrical systems of the Property, without first obtaining the prior written
consent of Landlord, which may be given or withheld in Landlord's sole and
absolute discretion. Permitted machinery and equipment belonging to Tenant which
cause noise or vibrations that may be transmitted to any part of the Property to
such a degree as to be objectionable to Landlord or to any tenant of the
Property shall be installed and maintained by Tenant, at Tenant's expense, on
vibration eliminators or other devices sufficient to eliminate such noise and
vibrations.
(b) Maintenance and repair of equipment such as 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.
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16. Notice of Defects. Tenant shall give Landlord prompt notice of any
defects or breakage in the structure, equipment or fixtures of the Demised
Premises or Property.
17. Liability. (a) Landlord assumes no liability or responsibility
whatsoever with respect to the conduct and operation of the business to be
conducted in the Demised Premises. Landlord shall not be liable for any accident
or injury to any person or persons or property in or about the Demised Premises
or the Property which are caused by the conduct and operation of said business
or by virtue of equipment or property of Tenant in the Demised Premises. Tenant
agrees to hold Landlord and the holders of any mortgages or deeds of trust on
the Property harmless against all such claims. Tenant shall indemnify and hold
harmless Landlord and the holders of any mortgages or deeds of trust on the
Property from and against any loss, damage or liability occasioned by or
resulting from any default hereunder or any willful or negligent act on the part
of Tenant, its agents, employees or invitee, or persons permitted in the Demised
Premises by Tenant.
(b) Landlord shall not be liable for any accident or damage caused
by electric light or wires or any accident or damage which may occur through the
operation of heating, air conditioning, lighting or plumbing apparatus, or any
accident or injury occurring in connection with the Property and its services.
All personal property of Tenant in the Demised Premises or on the Property shall
be at the sole risk of Tenant. Landlord shall not be liable for loss or damage
to property of Tenant caused by rain, snow, water or steam that may leak into or
flow from any part of the Property through any defects in the roof or plumbing
or from any other source, including but not limited to acts or omissions on the
part of other tenants of Property or persons using the Property or present
therein. It is understood and agreed that Tenant covenants to save Landlord and
the holders of any mortgages or deed of trust on the Property harmless and
indemnified from all loss, damage, liability or expense incurred by reason of
Tenant's neglect in its use of the Demised Premises or the Property or any part
thereof including the use of the water, steam, electric or other systems, and
the injury, loss or damage to any person or party upon the Demised Premises.
18. Signs. Tenant agrees that no sign, advertisement or notice shall be
inscribed, painted or affixed on any part of the outside or the inside of the
Demised Premises, or the Property, except adjacent to the doors of the offices,
and then only in such size, color and style as Landlord in its discretion shall
approve. Landlord shall have the right to prohibit any sign, advertisement, or
notice of Tenant which in the Landlord's opinion tends to impair the appearance
or reputation of the Property or its desirability as a building for general
offices, and upon written notice from Landlord Tenant shall refrain from and
discontinue such advertisement and Landlord in addition to its other remedies
for default hereunder, shall have the right to remove the same, and Tenant shall
be liable for any and all costs and expenses incurred by said removal.
19. Ordinances, Regulations and Rules. (a) Tenant shall at Tenant's cost,
promptly comply with and carry out all orders, requirements or conditions now or
hereafter imposed upon Tenant by the ordinances, laws, and/or regulations of
local, state or federal governments, or by any of their various departments or
agencies, whether required of Landlord or otherwise to be done or performed
during the term of this Agreement, insofar as they are occasioned by or required
in the conduct of the business of Tenant or its occupancy of the Demised
Premises. Tenant shall
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indemnify and save Landlord and the holders of any mortgages or deeds of trust
on the Property harmless from all penalties, claims and demands resulting from
failure or negligence in this respect.
(b) Tenant, its agents, employees and visitors, shall abide by and
observe the rules and regulations set forth below and such other reasonable
rules and regulations as may be promulgated from time to time by Landlord for
the operation and maintenance of the Property provided a copy thereof is sent to
Tenant. Nothing contained in this Lease shall be construed to impose upon
Landlord any duty or obligation to enforce such rules and regulations, or the
terms, conditions or covenants contained in any other lease, as against any
other tenant and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its employees, agents or invitee.
(i) The sidewalks, entries, receiving areas, parking lot and
other parts of the Property which are not occupied by Tenant shall not be
obstructed.
(ii) Tenant shall not install or permit the installation of
any exterior awnings, shades, and the like other than those approved by Landlord
in writing.
(iii) No additional locks shall be placed upon any doors of
the Demised Premises unless a key to any such lock is first given to the
Landlord.
(iv) Tenant shall not construct, maintain, use or operate
within the Demised Premises or elsewhere on the Property any equipment or
machinery which produces music, sound, noise or vibration which is audible or
detectable beyond the Demised Premises.
(v) Electric and telephone distribution boxes and air
conditioning equipment must remain accessible at all times.
(vi) Tenant shall locate its dumpster or trash container only
next to its loading dock in a manner which does not interfere with other
tenant's use or enjoyment of their space. All dumpsters or trash containers must
be kept closed and must be maintained in a sanitary manner.
(vii) No animals of any kind shall be brought into or kept
about the Building by any tenant.
20. Indemnity. Except in the event of Landlord's primary negligence
directly causing the loss giving rise to the claim, Tenant shall indemnify
Landlord and its agents and employees, the landlord of any underlying lease, and
the holders of any mortgages or deeds of trust on the Property and save them
harmless from and against any and all claims, actions, damages, liabilities and
expense in connection with loss of life, personal injury and/or damage to
property arising from or out of any occurrence in, upon or at the Demised
Premises, or the occupancy or use by Tenant of the Demised Premises or any part
thereof, or occasioned wholly or in part by any act or omission of the Tenant,
its agents, contractors, employees, servants, permitted subtenants, invitee
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or licensees, or resulting from any default, breach, violation or
non-performance of this Lease by Tenant. In the event that Landlord or its
agents and employees shall, without fault on their part, be made a party to any
litigation commenced by or against Tenant, then Tenant shall protect and hold
Landlord, the landlord of any underlying lease, and the holders of any mortgages
or deeds of trust on the Property harmless and shall pay all costs, expenses and
reasonable attorney's fees incurred or paid in connection with such litigation.
Tenant shall pay, satisfy and discharge any and all judgments, orders and
decrees which may be recovered against Landlord in connection with the
foregoing.
21. Entry for Repairs and Inspections. (a) Tenant shall permit Landlord,
or its representatives, to enter the Demised Premises, at all reasonable times,
without diminution of the Rent and Additional Rent payable by Tenant, to
examine, inspect and protect the same, and to make such alterations and/or
repairs as in the judgment of Landlord may be deemed necessary, or to exhibit
the same to prospective tenants, mortgagees or purchasers.
(b) If Tenant refuses or neglects to repair the Demised Premises as
required hereunder to the reasonable satisfaction of Landlord as soon as is
reasonably possible, Landlord may make such repairs without liability to Tenant
for any loss or damage that may accrue to Tenant's merchandise, fixtures, or
other property or to Tenant's business by reason thereof, and upon completion
thereof, Tenant shall pay Landlord's costs for making such repairs plus twenty
percent (20%) for overhead, upon presentation of a xxxx therefore, as Additional
Rent.
(c) Landlord shall at all times have an easement and the right to
enter in and through the Demised Premises for installation and maintenance of
utility connections and facilities reasonably necessary to provide services to
other portions of the Property and the common areas; provided, however, to the
extent reasonably possible the exercise of such rights shall not unreasonably
interfere with the operation of the Tenant's business.
(d) Landlord's entrance upon the Demised Premises occasioned by this
paragraph shall not constitute an eviction of Tenant in whole or in part and the
Rent and Additional Rent reserved shall in no manner xxxxx while said repairs,
alterations, improvements, or additions are being made, by reason of loss or
interruption of business of Tenant, or otherwise.
22. Services and Utilities. (a) The Tenant at its cost shall provide for
its own use the following:
(i) all utilities in and for the Demised Premises, including
without limitation, electric, gas, sewer, water, telephone and cable utility
services;
(ii) all janitorial, cleaning and char services;
(iii) all servicing, maintenance, repair and replacement of
electric lighting, electric service, plumbing, plumbing fixtures, supplemental
heating, ventilating and air conditioning equipment, and other mechanical and
electrical equipment within the Demised Premises, including tenant improvements
and fixtures;
11
(iv) servicing, maintenance and repair of the base building
heating, ventilating and air conditioning equipment by a qualified service
contractor; and
(v) trash removal service from such dumpster location or
locations on the grounds of the Property as Landlord may designate.
(b) Provided that the Tenant is not in default under any provision
of this Lease, the Tenant has not been negligent in its use of any heating,
ventilating and air conditioning equipment, and Tenant has periodically
maintained such equipment as required herein, under a service contract with a
qualified service contractor, Landlord shall replace or rebuild any such
equipment which, as a result of normal usage and depreciation, fails to function
despite Tenant's maintenance and repair;
(c) Any failure by Landlord to furnish the foregoing services shall
not render Landlord liable in any respect for damages to either person or
property, nor be construed as an eviction to Tenant, nor work an abatement of
Rent, nor relieve Tenant from Tenant's obligations hereunder.
23. Insurance. (a) Tenant shall not conduct or permit to be conducted any
activity or place any equipment in or about the Demised Premises which will, in
any way, increase the rate of insurance premiums on the Property. If any
increase in the rate of insurance premiums is stated by any insurance company or
by the applicable Insurance Rating Bureau to be due to any activity or equipment
in or about the Demised Premises, such statement shall be conclusive evidence
that the increase in such rate is due to such activity or equipment and, as a
result thereof, Tenant shall be liable for such increase and shall reimburse
Landlord therefor, within ten (10) days of receipt of written notice, said sum
shall be deemed to be Additional Rent.
(b) Landlord shall insure the building, of which the Demised
Premises are a part, against damage by fire, including extended coverage, in any
amount Landlord in its sole discretion shall deem adequate, and shall maintain
such insurance throughout the term hereby demised. Tenant shall insure all of
its property in the Demised Premises against damage by fire, including extended
coverage, in an amount as shall be determined by the Landlord in consultation
with Tenant, and Tenant shall maintain such insurance throughout the term hereby
demised. In addition, Tenant shall also maintain with respect to the Demised
Premises, comprehensive public liability insurance, with minimum limits of
$500,000/$1,000,000 per personal injury, and $100,000 for property damage.
Tenant shall maintain the insurance coverage required herein with a company or
companies acceptable to Landlord, insuring the Landlord and its managing agent
as additional named insured, as well as Tenant, against bodily injury to or
death of persons, and against property damage as herein provided. Tenant shall
deliver certificates of insurance indicating the above specified coverage to the
Landlord upon the commencement of the Term of this Lease, and continuing
evidence of such coverage annually or upon request. Such insurance policy or
policies shall be reasonably satisfactory to Landlord and shall provide that it
(they) cannot be canceled without at least thirty (30) days prior written notice
to the Landlord. Tenant agrees to cause a waiver of subrogation to be included
in its policies of fire and extended
12
coverage insurance, if obtainable from its insurers. In the event Tenant shall
fail to maintain the public liability insurance coverage required by this
paragraph, Landlord may, at its option, pay the same and treat the cost of the
premiums as Additional Rent payable with the monthly installment of Rent next
becoming due.
24. Damage by Fire or Other Casualty. If the Property shall be partially
damaged by fire or other cause, other than the failure or neglect of Tenant,
Landlord shall as soon as practicable after such damage occurs (taking into
account the time necessary to effectuate a satisfactory settlement with any
insurance company) repair such damage at the expense of Landlord, and the Rent
shall be reduced in proportion to the extent the Demised Premises are rendered
untenantable until such repairs are completed; provided, however, that if the
Property is substantially damaged by fire or other cause to such extent that the
damage cannot be fully repaired within sixty (60) days from the date of such
damage, and if such loss was not caused by the Tenant's failure or neglect,
Landlord or Tenant shall have the option of terminating this Lease by giving
written notice to the other party of such decision and the term of this Lease
shall terminate ten (10) days after such notice is given. No compensation or
reduction of Rent shall be allowed or paid by Landlord by reason of
inconvenience, annoyance, or injury to business arising from the necessity of
repairing the Demised Premises or any portion of the Property.
25. Eminent Domain. If the whole or a substantial part of the Demised
Premises shall be taken or condemned by governmental authority for any public or
quasi-public use or purpose, then the term of this Lease shall cease and
terminate as of the date when title vests in such governmental authority, and
Tenant shall not have any claim against Landlord and shall not have any claim
for any portion of the amount that may be awarded as damages as a result of such
taking or condemnation or for the value of any unexpired term of the Lease;
provided, however, that Tenant may separately assert any claim that it may have
against the condemning authority for compensation for any fixtures owned by
Tenant and for any relocation expenses compensable by statute. If less than a
substantial part of the Demised Premises is taken or condemned by any
governmental authority for any public or quasi-public use or purpose, the Rent
shall be equitably adjusted on the date when title vests in such governmental
authority and the Lease shall otherwise continue in full force and effect. For
purposes hereof, a substantial part of the Demised Premises shall be considered
to have been taken if more than twenty percent (20%) of the Demised Premises are
unusable by Tenant.
26. Defaults and Remedies. (a) The following events shall be a default
(hereinafter referred to as a "Default") of Tenant under this Lease:
(i) Failure of Tenant to make any payment of Rent (including
Annual Increase) when due.
(ii) Failure of Tenant to make any payment of Additional Rent
when due.
(iii) Failure of Tenant to perform or comply with any
provision of this Lease to be performed or complied with by Tenant, other than
provisions for the payment of Rent
13
or Additional Rent, where such failure shall continue for a period of ten (10)
days after written notice thereof by Landlord to Tenant.
(iv) The taking of this Lease or the Demised Premises, or any
part thereof, upon execution or by other process of law directed against Tenant,
or upon or subject to any attachment at the instance of any creditor of or
claimant against Tenant, which execution or attachment shall not be discharged
or disposed of within thirty (30) days after the levy thereof.
(v) If Tenant fails to take possession of the Demised Premises
within a reasonable period of time after the lease commencement of the Term of
this Lease or substantially vacates or abandons the Demised Premises prior to
the normal expiration of the term.
(vi) The circumstance of Tenant, or any guarantor of Tenant's
obligation hereunder, in financial difficulties as evidenced by (1) its
admitting in writing its inability to pay its debts generally as they become
due, or (2) its filing a petition in bankruptcy or for reorganization or the
adoption of an arrangement under the Bankruptcy Act (as now or hereafter
existing), or an answer or other pleading admitting the material allegations of
such a petition or seeking, consenting to or acquiescing in the relief provided
for under such Act, or (3) its making an assignment of all or a substantial part
of its property for the benefit of its creditors or (4) its seeking or
consenting to or acquiescing in the appointment of a receiver or trustee for all
or a substantial part of its property or of the Demised Premises, or (5) its
being adjudicated a bankrupt or insolvent, or (6) the entry of a court order
without its consent, which order shall not be vacated, set aside or stayed
within sixty (60) days from the date of entry, appointing a receiver or trustee
for all or a substantial part of its property or approving a petition filed
against it for the effecting of an arrangement in bankruptcy or for a
reorganization pursuant to the Bankruptcy Act or for any other judicial
modification or alteration of the rights of creditors.
(b) The provisions of this paragraph shall apply notwithstanding the
payment by Tenant of the security deposit and/or the continued willingness and
ability of Tenant to pay Rent and otherwise perform hereunder. The receipt by
Landlord of payments of Rent, as such, accruing subsequent to the time of
Tenant's default under this paragraph and even though Landlord may have actual
notice of the occurrence of an event of Default under this paragraph shall not
be deemed a waiver by Landlord of the provisions of this paragraph.
(c) Upon the occurrence of a Default, Landlord shall have the right
at its election, then or at any time thereafter either:
(i) To give Tenant written notice of Landlord's intent to
terminate this Lease on the date of the notice or on any later date, specified
in the notice, and on such date Tenant's right to possession of the Demised
Premises shall cease and this Lease shall thereupon be terminated; or
(ii) to re-enter without demand or notice and to take
possession of all or any part of the Demised Premises and expel Tenant and those
claiming through Tenant, and remove the property of Tenant and any other person,
either by summary proceedings, by action at
14
law or in equity, by force without due process of law, or by any other means,
without being deemed guilty of trespass or liable for prosecution or damages
therefor, and without prejudice to any remedies for nonpayment or late payment
of Rent or breach of covenant. If Landlord elects to reenter under this
provision, Landlord may terminate this Lease, or, from time to time, without
terminating this Lease, may relet all or any part of the Demised Premises as
agent for Tenant for such term or terms and at such rental and upon such other
terms and conditions as Landlord may deem advisable in its sole and absolute
discretion, with the right to make alterations and repairs to the Demised
Premises. No such reentry or taking of possession of the Demised Premises by
Landlord shall be construed as an election on Landlord's part to terminate this
Lease unless a written notice of such intention is given to Tenant or unless the
termination be decreed by a court of competent jurisdiction at the instance of
Landlord. Nothing herein shall be construed to require the Landlord to mitigate
damages.
(d) If Landlord terminates this Lease pursuant to the preceding
subparagraph, Tenant shall remain liable (in addition to accrued liabilities)
for (i) Rent, Additional Rent and any other sums provided for in this Lease
until the date this Lease would have expired had such termination not occurred,
and any and all expenses (including attorney's fees, disbursements and brokerage
fees) incurred by Landlord in reentering and repossessing the Demised Premises,
in making good any Default of Tenant, in painting, altering, repairing or
dividing the Demised Premises, in protecting and preserving the Demised Premises
by use of watchmen and caretakers, and in reletting the Demised Premises, and
any and all expenses which Landlord may incur during the occupancy of any new
tenant; less (ii) the net proceeds of any reletting prior to the date this Lease
would have expired if it had not been terminated. Tenant agrees to pay to
Landlord the difference between items (i) and (ii) above for each month during
the Term, at the end of each such month. Any suit brought by Landlord to enforce
collection of such difference for any one month shall not prejudice Landlord's
right to enforce the collection of any difference for any subsequent month. In
addition to the foregoing, and without regard to whether this Lease has been
terminated, Tenant shall pay to Landlord all costs incurred by Landlord,
including reasonable attorney's fees, with respect to any lawsuit or action
instituted or taken by Landlord to enforce the provisions of this Lease.
Tenant's liability shall survive the institution of summary proceedings and the
issuance of any writ of restitution thereunder.
(e) If Landlord terminates this Lease, Landlord shall have the
right, at any time, at its option, to require Tenant to pay to Landlord on
demand, as liquidated and agreed final damages in lieu of Tenant's liability
hereunder, the Rent, Additional Rent and all other charges which would have been
payable from the date of such demand to the date when this Lease would have
expired if it had not been terminated, (minus the fair rental value negotiated
in good faith with another tenant of the Demised Premises for the same period,
if any). If the Demised Premises shall have been relet for all or part of the
remaining balance of the Term by Landlord after a Default but before
presentation of proof of such liquidated damages, the amount of rent reserved
upon such reletting shall be deemed the fair rental value of the Demised
Premises for purposes of the foregoing determination of liquidated damages. Upon
payment of such liquidated and agreed final damages, Tenant shall be released
from all further liability under this Lease with respect to the period after the
date of demand.
15
(f) Tenant, on its own behalf and on behalf of all persons claiming
through Tenant, including all creditors does hereby waive any and all rights and
privileges, so far as is permitted by law, which Tenant and all such persons
might otherwise have under any present or future law (i) to the service of any
notice of intention to reenter which may otherwise be required to be given, (ii)
to redeem the Demised Premises, (iii) to reenter or repossess the Demised
Premises, or (iv) to restore the operation of this Lease, with respect to any
dispossession of Tenant by judgment or warrant of any court or otherwise,
whether such dispossession, reentry, expiration or termination be by operation
of law or pursuant to the provisions of this Lease.
(g) In the event of any breach by Tenant or any person or persons
claiming through Tenant of any of the provisions contained in this Lease,
Landlord shall be entitled to enjoin such breach and shall have the right to
invoke any right or remedy allowed at law or otherwise as if reentry, summary
proceedings or other specific remedies were not provided for in this Lease.
(h) Landlord shall, to the extent permitted by law, have (in
addition to all other rights) a right of distress for Rent and Additional Rent
and a lien on all Tenant's personal property as security for all adjusted Rent,
Additional Rent and any other sums payable under this Lease.
(i) If Tenant defaults in the making of any payment to a third party
or in the doing of any act herein required to be made or done by Tenant, then
after ten (10) days notice from Landlord (except in the event of nonpayment of
Rent or Additional Rent, for which no notice is required), Landlord may, but
shall not be required to, make such payment or do such act, and the amount and
the expense thereof, if made or done by Landlord, with interest thereon at the
rate of three hundred (300) base points over the prime rate of Crestar Bank,
Richmond, Virginia, or its successor, but not to exceed the highest lawful rate,
from the date paid by Landlord, shall be paid by Tenant to Landlord and shall
constitute Additional Rent hereunder due and payable with the next monthly
installment of Rent; but the making of such payment or the doing of such act by
Landlord shall not operate to cure such Default or to estop Landlord from the
pursuit of any remedy to which Landlord would otherwise be entitled.
(j) All rights and remedies of Landlord under this Lease shall be
cumulative and shall not be exclusive of any other rights and remedies provided
to Landlord now or hereafter under law or under this Lease.
27. Waiver. If under the provisions hereof Landlord shall institute
proceedings and a compromise or settlement thereof shall be made, the same shall
not constitute a waiver of any covenant herein contained nor of any of
Landlord's rights hereunder. No waiver by Landlord of any breach of any
covenant, condition or agreement herein contained shall operate as a waiver of
such covenant, condition or agreement itself, or of any subsequent breach
thereof. 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 other than
on account of the earliest stipulated Rent, nor shall any endorsement or
statement on any check or letter accompanying a check for payment of Rent or
Additional 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 Additional
16
Rent or to pursue any other remedy provided in this Lease. No reentry by
Landlord, and no acceptance by Landlord of keys from Tenant, shall be considered
an acceptance of a surrender of this Lease.
28. Subordination. This Lease is subject and subordinate to all ground or
underlying leases and to all mortgages and/or deeds of trust which may now or
hereafter affect such leases or the Property and to all 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
execute promptly any certificate that the Landlord may request. Tenant hereby
constitutes and appoints Landlord the Tenant's attorney-in-fact to execute any
such certificate or certificates for an on behalf of Tenant. 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, or deed in lieu thereof, 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; Tenant covenants and agrees that it shall 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 this Lease to the lien of said deed of trust and the attornment
of the Tenant to such party. 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 the 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 and in that
event, this Lease shall continue as a direct lease between Tenant herein and
such landlord or its successor; and, in any case, such landlord or successor
under such ground or underlying lease shall not be bound by any prepayment on
the part of Tenant of any Rent for more than one month in advance, so that Rent
shall be payable under this Lease in accordance with its terms, from the date of
the termination of the ground or underlying lease, as if such prepayment had not
been made. Such landlord or successor under such ground or underlying lease
shall not be bound by this Lease or any amendment or modification of this Lease
unless, prior to the termination of such ground or underlying lease, a copy of
this Lease or amendment or modification thereof, as the case may be, shall have
been delivered to such landlord or successor.
29. Estoppel Certificates. Tenant agrees, at any time and from time to
time, upon not less than five (5) days prior notice by Landlord, to execute,
acknowledge and deliver to Landlord a statement in writing in such form as
Landlord may request, (i) certifying that this Lease is unmodified (or if
modified, stating the modifications) and in full force and effect (or if not in
full force and effect, the reasons therefor), (ii) stating the dates to which
the Rent, Additional Rent and other charges hereunder have been paid by Tenant,
(iii) stating whether or not to the best knowledge of Tenant, Landlord is in
default in the performance of any covenant, agreement or condition contained in
this Lease, and if so, specifying each such default of which Tenant may have
knowledge, and (iv) stating the address to which notices to Tenant should be
sent. Any such statement delivered pursuant hereto may be relied upon by any
owner of the Property, any prospective purchaser of the Property, any mortgagee
or prospective mortgagee of the Property,
17
any prospective assignee of any such mortgagee, or any lessor or prospective
lessor of the land which is a part of the Property.
30. No Recourse to Landlord. The obligations of Landlord under this Lease
do not constitute personal obligations of the individual partners, directors,
officers, or shareholders of Landlord, and Tenant shall look solely to the
Property of which the Demised Premises are a part and to no other assets of the
Landlord or the holders of any mortgages or deeds of trust on the Property for
satisfaction of any liability in respect of this Lease and shall not seek
recourse against the individual partners, directors, officers or shareholders of
Landlord or the holders of any mortgages or deeds of trust on the Property or
any of their personal assets for such satisfaction.
31. Holding Over. If Tenant shall, with the knowledge and consent of
Landlord, continue to remain in the Demised Premises after the expiration of the
Term of this Lease and any extensions thereof, then and in such event, Tenant
shall, by virtue of this agreement become a tenant by the month at a monthly
rental equal to one hundred twenty percent (120%) of the monthly installment of
Rent agreed by the Tenant to be paid as aforesaid, commencing said monthly
tenancy with the first day next after the end of the Term above demised. Tenant
shall give to Landlord at least thirty (30) days written notice of any intention
to quit the Demised Premises, and Tenant shall be entitled to thirty (30) days
written notice to quit the Demised Premises, except in the event of non-payment
of Rent or Additional Rent or of the 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; provided, however, that
in the event that Tenant shall hold over after the expiration of the Term hereby
created, and if Landlord shall desire to regain possession of the Demised
Premises promptly at the expiration of the Term aforesaid, then at any time
prior to Landlord's acceptance of Rent from Tenant as a monthly tenant
hereunder, Landlord, at it option, may forthwith reenter and take possession of
the Demised Premises without process, or by any legal process in force.
32.Submission of Lease. The submission of this Lease for examination by
Tenant does not constitute a reservation of or option for the Demised Premises,
and this Lease shall become effective as a lease only upon execution and
delivery thereof by Landlord and Tenant.
33. Covenant of Landlord. Landlord covenants that it has the right to make
this Lease, and that if Tenant shall pay the Rent and Additional Rent and shall
perform all of Tenant's obligation under this Lease, Tenant shall, during the
term hereof, freely, peaceably and quietly occupy and enjoy the full possession
of the Demised Premises without molestation or hindrance by Landlord or any
party claiming through or under Landlord, subject, however, to the underlying
lease, mortgages and deeds of trust described in Paragraph 28 and except as
otherwise provided herein. The term "Landlord" as used herein shall mean solely
the owner of Landlord's interest in the Property, whoever that may be at the
relevant time, so that in the event of any sale or transfer of Landlord's
interest in the Property, any prior Landlord shall be freed and relieved of all
covenants and obligations of Landlord hereunder.
34. Force Majeure. If Landlord, as the result of any (i) strikes,
lockouts, or labor disputes; (ii) inability to obtain labor, materials, fuel,
electricity, services or reasonable substitutes
18
therefore; (iii) acts of God, civil commotion, fire or other casualty; (iv)
governmental action of any kind; or (v) other conditions similar to those
enumerated above beyond Landlord's reasonable control, fails punctually to
provide any service or to perform any obligation on its part to be performed
hereunder, then, unless otherwise expressly provided, such failure shall be
excused and shall not be a breach hereunder, but only to the extent occasioned
by such event. In the event, however, that any such event shall prevent
Landlord's performance for a period longer than sixty (60) consecutive days, the
Tenant shall have the right to terminate this Lease.
35. Omitted.
36. Omitted.
37. Waiver of Trial by Jury. Tenant hereby waives all right to trial by
jury in any claim, action, proceeding or counterclaim by either Landlord or
Tenant against each other on any matters arising out of or in any way connected
with this Lease, the relationship of Landlord and Tenant, and/or Tenant's use or
occupancy of the Demised Premises.
38. Attorney's Fees. If, in the event of a default by Tenant, Landlord
places the enforcement of this Lease, or any part thereof, or the collection of
any Rent or Additional Rent due, or to become due hereunder, or recovery of the
possession of the Demised Premises in the hands of an attorney, or files suit
upon the same, Tenant agrees to pay Landlord's attorney's fees.
39. Brokers. Landlord and Tenant each represent and warrant that neither
of them has employed any broker 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 for brokerage
or other commission arising from or out of any breach of the foregoing
representation and warranty.
40. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed duly given if delivered in person or sent by
certified or registered mail, return receipt requested, first class, postage
prepaid, (i) if to Landlord, at Suite 200, 0000 X. Xxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, and (ii) if to Tenant at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, unless notice of a change of address is given pursuant to the
provisions of this paragraph.
41. Miscellaneous. (a) This Lease and the Exhibits attached hereto contain
and embody the entire agreement of the parties hereto and no representations,
inducements, or agreements, oral or otherwise, between Landlord and Landlord's
agents and Tenant not contained in this Lease and Exhibits shall be of any force
or effect. This Lease may not be modified, changed or terminated in whole or in
part in any manner other than by an agreement in writing duly signed by both
parties hereto.
(b) The terms, covenants and conditions hereof shall be binding upon
and inure to the permitted successors in interest and assigns of the parties
hereto. Landlord may freely and idly assign its interest hereunder.
19
(c) If any provision of this Lease or the application thereof to any
person or circumstances shall to any extent be held void, unenforceable or
invalid, then the remainder of this Lease or the application of such provision
to persons or circumstances other than those as to which it is held void,
unenforceable or invalid shall not be affected thereby, and each provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
(d) Tenant shall not record this Lease without the written consent
of Landlord, which may be given or denied in Landlord's sole discretion. If
Landlord consents to such recordation, the cost thereof shall be paid by Tenant.
(e) The captions and headings throughout this Lease are for
convenience and reference only and the words contained therein shall in no way
be held or deemed to define, limit, describe, explain, modify, amplify or add to
the interpretation, construction or meaning of any provision of or the scope of
intent of this Lease nor in any way affect this Lease.
(f) 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.
(g) Feminine or neuter pronouns shall be substituted for those of
the masculine form, the plural shall be substituted for singular number and vice
versa in any place or places herein in which the context may require such
substitute or substitution.
(h) This Lease is to be construed under the laws of the jurisdiction
in which the Property is located.
42. Omitted.
43. Authority of Landlord and Tenant. Each individual executing this Lease
on behalf of Landlord and Tenant represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of Landlord or Tenant in
accordance with a partnership agreement or a duly adopted resolution of the
Board of Directors or in accordance with its bylaws and that this Lease is
binding upon Landlord and Tenant in accordance with its terms.
20
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under
seal the day and year first hereinabove written.
LANDLORD:
NORTH POINT ASSOCIATES LIMITED
PARTNERSHIP
By NORTH POINT CORPORATION
General Partner
By: /s/ [ILLEGIBLE]
----------------------------------
President
TENANT:
COMMONWEALTH SCIENTIFIC CORPORATION
By: /s/ X.X. Xxxxxxxx
-------------------------------------
President
21
STATE OF VIRGINIA )
) ss:
AT LARGE )
On this ___ day of_________, 19__, before the undersigned, a Notary Public
of the State and County aforesaid, personally appeared _______________________,
who acknowledged himself to be the __________________ of North Point Associates
Limited Partnership, a Virginia limited partnership, and that he, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained.
In witness whereof I hereunto set my hand and official seal.
_____________________________________
Notary Public
My Commission Expires: _______________________
STATE OF VIRGINIA )
) ss:
AT LARGE )
On this 13th day of August, 1996 before the undersigned, a Notary Public
of the State and County aforesaid, personally appeared Xxxxxx X. Xxxxxxxx, who
acknowledged himself to be the President of Commonwealth Scientific Corporation,
a Virginia Corporation, and that he, being authorized so to do, executed the
foregoing instrument for the purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Notary Public
My Commission Expires: August 31, 1999
22
