WRIT Limited Partnership
DEED OF LEASE
BY AND BETWEEN
WRIT Limited Partnership
as Landlord
and
KnowledgeMax, Inc.
as Tenant
TABLE OF CONTENTS
ARTICLE I. PREMISES 1
ARTICLE II. TERM 1
ARTICLE III. RENT 1
ARTICLE IV. TENANT'S 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 7
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 12
ARTICLE XVIII. INSURANCE 12
ARTICLE XIX. FIRE OR CASUALTY 13
ARTICLE XX. DEFAULTS AND REMEDIES 13
ARTICLE XXI. BANKRUPTCY 15
ARTICLE XXII. LANDLORD'S LIEN 15
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 17
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 18
ARTICLE XXXV. FINANCIAL STATEMENTS 19
ARTICLE XXXVI. RELOCATION 19
ARTICLE XXXVII. QUIET ENJOYMENT 19
ARTICLE XXXVIII. MEDICAL WASTE 19
ARTICLE XXXIX. RENEWAL OPTION 19
ARTICLE XL. MISCELLANEOUS 20
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ATTACHMENTS:
EXHIBIT A PLAN
EXHIBIT B LANDLORD'S WORK
EXHIBIT C MEMORANDUM OF LEASE COMMENCEMENT DATE
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WASHINGTON REAL ESTATE INVESTMENT TRUST
DEED OF LEASE
THIS DEED OF LEASE is made this 9th day of January, 2002 by and
between the WRIT Limited Partnership, hereinafter called
Landlord, and KnowledgeMax, Inc., a Delaware corporation,
hereinafter called 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 to Tenant, and Tenant hereby leases from Landlord,
Suite T300, hereby deemed to contain approximately 8,492 square
feet of rentable area measured in accordance with the Greater
Washington Commercial Association of Realtors Standard Method of
Measurement, on the third floor of the building located at 0000
Xxxxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000 ("Building") which space
is hereinafter referred to as the Premises. The foregoing
approximation of square footage shall in no way 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 one (1) year and two (2)
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 January 1, 2002
("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 Anticipated 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 construed 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 One Hundred Forty-Four Thousand Three Hundred
Sixty-Four and 00/100 Dollars ($144,364.00), (hereinafter called
the "Basic Annual Rent") payable without deduction, set off,
abatement, demand or counterclaim, in equal monthly installments
of Twelve Thousand Thirty and 33/100 Dollars ($12,030.33). 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 WRIT 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
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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.
3.3. On March 1, 2003 and on the first day of every Lease
Year thereafter during the Lease Term, the Basic Annual Rent
shall be increased by three and 00/100 percent (3 %) of the
preceding Lease Year's Basic Annual Rent.
3.4. Commencing on March 1, 2003, Tenant shall pay to
Landlord as additional rent one and 62/100 percent (1.62%) (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 assessments, 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 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 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 2002.
(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 March 1, 2003 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 one
and 62/100 percent (1.62%) (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, maintenance, repair
and operation of the Building including, but not limited to, the
following:
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(i) Cost of wages and salaries of all employees
engaged in the operation and maintenance of the Building,
including taxes, insurance and benefits;
(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 2002.
(e) Commencing on March 1, 2003, in the event that
the actual Operating Expenses for any calendar year during the
Term exceed the Initial Operating Expenses set out above,
commencing March 1, 2003 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 (1/12th) 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.
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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
3.7. 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 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 Twenty-Four Thousand Sixty and 66/100 Dollars
($24,060.66) ("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,
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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.
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.
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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:
(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
6
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. ss6901 et seq.), the
Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. ss.9601 et seq.), the Clean Water Act (33 U.S.C.
?1251 et seq.), the Clean Air Act (42 U.S.C. ss.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.
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.
ARTICLE 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
7
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.
10.2. Tenant shall indemnify 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 the 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
8
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. Notwithstanding anything herein
to the contrary, Tenant shall have the right to affix corporate
logo inside the reception area.
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 III 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. Landlord warrants that
the Premises is currently handicapped accessible in accordance
with Fairfax County code. Tenant will be responsible for
compliance with any future alterations.
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
9
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.
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
fifteen (15) 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.
10
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.
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
11
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.
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.
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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.
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 or Tenant
shall have the right, to terminate this Lease as of the sixtieth
(60th) day after such damage or destruction by giving written
notice of termination to the other 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
13
"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 option, either
(a) or (b) below:
(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 computed 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.
14
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. Subordinate to any equipment acquisition financing,
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.
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
15
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, easements, 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.
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
16
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, TENANT'S 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.
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 General Partner of the Landlord, 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
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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:
(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
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(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.
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; provided, however,
Landlord shall give Tenant thirty (30) 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 and relocation of telephone service. 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 s. 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. RENEWAL OPTION
39.1. Tenant's Renewal Option:
(a) Landlord hereby grants to Tenant the conditional
right, exercisable at Tenant's option, to renew the term of this
Lease for one (1) term (Renewal Term) of three (3) consecutive
years. If exercised, and if the conditions applicable thereto
have been satisfied, the Renewal Term shall commence
19
on the day immediately following the Lease Expiration date as
provided in this Lease. The right of renewal herein granted
to Tenant with respect to the Renewal Term shall be subject
to, and shall be exercised in accordance with, the following
terms and conditions:
(i) Tenant shall exercise its right of renewal with
respect to the Renewal Term by giving Landlord written
notice (Tenant's Renewal Option Notice) thereof not later
than four (4) months nor more than seven (7) months prior
to the Expiration Date of the then-current Lease Term.
Within fifteen (15) days of the later of: i) Landlord's
receipt of Tenant's Renewal Option Notice; ii) six months
prior to the Expiration Date of the then current Lease
Term, Landlord shall give Tenant written notice (Landlord's
Renewal Notice) specifying the Basic Annual Rent, which
shall be at 100% of the then current market rent as
determined by Landlord in Landlord's sole and absolute
discretion and shall be not less than the then escalated
rent, that Tenant shall be obligated to pay during the
Renewal Term. Within fifteen days of Tenant's receipt of
Landlord's Renewal Notice, Tenant shall give Landlord
written notice (Tenant's Renewal Option Acceptance Notice)
of Tenant's acceptance of the Basic Annual Rent specified
in Landlord's Renewal Notice.
(ii) In the event the Tenant's Renewal Option
Notice or Tenant's Renewal Option Acceptance Notice is not
given timely or is not given, Tenant's right of renewal
with respect to the Renewal Term shall lapse and be of no
further force or effect.
(iii) The renewal option may be exercised only with
respect to the entire Premises, not with respect to only a
part of the Premises.
(iv) In the event there has been an Event of
Default under this Lease prior to or on the date Tenant's
Renewal Option Notice or Tenant's Renewal Option Acceptance
Notice or Tenant's Renewal Option Acceptance Notice is sent
or any time thereafter up to and including the date such
Renewal Term is to commence, then, at Landlord's option,
such Renewal Term shall not commence and the Lease Term
shall expire on the date the Lease Term would have expired
without such renewal.
(v) If at the time Tenant provides Tenant's Renewal
Option Notice or Tenant's Renewal Option Acceptance Notice,
or at any time thereafter until the Renewal Term is to
commence, Tenant has subleased more than thirty percent
(30%) of the rentable area of the Premises, then, at
Landlord's option, Tenant's rights pursuant to this Section
shall lapse and be of no further force or effect.
(vi) Any termination of this Lease shall terminate
all rights of extension hereunder.
(b) During the Renewal Term, all the terms,
conditions, covenants and agreements set forth in this Lease
shall continue to apply and be binding upon Landlord and Tenant,
except that: (i) the Basic Annual Rent for the Premises,
including any and all expansion space leased by Tenant pursuant
to this Lease, shall be the rent specified in Landlord's Renewal
Notice, (ii) in no event shall Tenant have the right to renew the
Lease Term beyond the expiration of the Renewal Term provided for
in this Section, (iii) Tenant accepts the Premises on an "as is"
basis as of the date of commencement of such renewal.
Notwithstanding anything to the contrary in the foregoing
sentence, to the extent that Tenant received any tenant
concessions such as rent abatement or allowances, then such
concessions for the Premises shall not apply to the Renewal Term.
(c) After receiving Tenant's Renewal Option
Acceptance Notice, Landlord shall prepare and submit to Tenant an
amendment to this Lease amending the Term and the Basic Annual
Rent. In the event Tenant fails to execute such amendment within
seven (7) days of Tenant's receipt of such amendment, then
Tenant's right to renew this Lease as provided in this Section
shall be null and void and of no further force or effect and the
Lease shall terminate on the Expiration Date of this Lease.
ARTICLE XL. MISCELLANEOUS
40.1. 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.
40.2. 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.
40.3. 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.
40.4. 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
20
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.
40.5. 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.
40.6. 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.
40.7. Governing Law. This Lease is governed under the laws
of the jurisdiction in which the Building is located.
40.8. Captions. Section headings are used for convenience
and shall not be considered when construing this Lease.
40.9. 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.
40.10. 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
hereunder shall be deemed to be joint and several.
40.11. Time is of the Essence. Time is of the essence
with respect to each and every provision of this Lease.
40.12. 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.
40.13. 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.
40.14. 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.
40.15. Survival. Tenant's liabilities existing as of
the expiration or earlier termination of the Lease Term shall
survive such expiration or earlier termination.
40.16. 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.
40.17. Parking.
(a) Landlord shall provide a parking area in
reasonable proximity to the building for the parking of
automobiles owned by Tenant, its employees, contractors,
licensees, customers and invitees. All automobile parking areas
shown on the plan for the Building shall be under the sole and
exclusive control of the Landlord, and shall be available for the
general use in common by all tenants of the Building, their
officers, agents, employees, invitees, licensees, customers,
clients, subtenants, and guests, 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, controlling of ingress and egress, setting
parking charges, locating and arranging spaces; and generally, to
maintain the parking lot in the manner, in Landlord's discretion,
as is concomitant with the use of the areas by all tenants in the
Building. In connection with any future construction, Landlord
shall have the right to relocate any parking area designated for
Tenant's use.
(b) Landlord hereby grants Tenant a license to use
three (3) unreserved parking spaces per 1000 rentable square feet
leased. Tenant shall pay Landlord, in advance, a monthly parking
fee without
21
abatement, deduction, offset, demand or counterclaim
for the foregoing parking spaces in the amount of $45.00 per
space per month which shall be deemed Additional Rent. The
foregoing fee is subject to increase. Tenant agrees to comply
and shall cause its officers, employees, agents and contractors
to comply with all rules and regulations promulgated by Landlord
with respect to the parking of vehicles.
40.18. Designation of Agent. Landlord's registered
agent for the purpose of service of any process, notice, order or
demand required or permitted by law to be served upon Landlord
and the registered agent's office address is: Xxxxxx X. Xxxxxx,
0000 Xxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
40.19. 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.
22
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:
KNOWLEDGEMAX, INC.
/s/ Xxxxx X. Xxxxxx By: /s/ E. Xxxxxxx Xxxxxx (Seal)
(Signature Here)
Name: E. Xxxxxxx Xxxxxx
Title: Chairman
Social
Security
Number:
Federal Tax
Identification
Number: 00-0000000
Witness/Attest: LANDLORD:
WRIT LIMITED PARTNERSHIP
By: WASHINGTON REAL ESTATE
INVESTMENT TRUST
General Partner
/s/ illegible By: /s/ Xxxxxx XxXxxxxx (Seal)
(Signature Here)
Name: Xxxxxx X. XxXxxxxx,
Xx.
Title: Vice President
23
Exhibit A
[Floor Plan of Leased Premises]
24
EXHIBIT C
MEMORANDUM OF LEASE COMMENCEMENT DATE
Pursuant to that certain Lease, (hereinafter, the Lease) entered
into between _______________________________________________, as
Landlord, (hereinafter Landlord) and
_____________________________________, as Tenant (hereinafter
Tenant), dated _________________, 2001 related to certain space
(defined in the Lease as the Demised Premises) in that certain
Building located at ____________________________________,
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
____________________, 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 _______ day of
_______________________, 2001.
Witness/Attest: TENANT:
KNOWLEDGEMAX, INC.
___________________ By: ______________________(Seal)
(Signature Here)
Name: E. Xxxxxxx Xxxxxx
Title: Chairman
SS# ___________
Federal ID #: ___________
Witness/Attest: LANDLORD:
WRIT LIMITED PARTNERSHIP
By: WASHINGTON REAL ESTATE
INVESTMENT TRUST
General Partner
____________________ By: ___________________(Seal)
(Signature Here)
Name: Xxxxxx X. Xxxxxx,
Xx.
Title: President
TO BE SIGNED UPON POSSESSION
