EXHIBIT 10.45
LEASE
BY AND BETWEEN
AETNA LIFE INSURANCE COMPANY
("Landlord")
AND
POTOMAC FINANCIAL GROUP, L.L.C.
("Tenant")
Multi-tenant Office Lease
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx
TABLE OF CONTENTS
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1. TERMS................................................ 1
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2. DELIVERY OF POSSESSION............................... 2
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3. PAYMENT OF RENT...................................... 2
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4. SECURITY DEPOSIT..................................... 2
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5. USES................................................. 3
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6. LATE CHARGES......................................... 5
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7. REPAIRS AND MAINTENANCE.............................. 5
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8. UTILITIES AND SERVICES............................... 5
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9. COST OF SERVICES AND UTILITIES....................... 6
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10. PROPERTY TAXES....................................... 11
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11. LIABILITY AND CASUALTY INSURANCE..................... 13
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12. FIRE INSURANCE - FIXTURES AND EQUIPMENT.............. 14
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13. DAMAGE OR DESTRUCTION................................ 14
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14. ALTERATIONS AND ADDITIONS: REMOVAL OF FIXTURES....... 16
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15. ACCEPTANCE OF PREMISES............................... 17
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16. TENANT IMPROVEMENTS.................................. 18
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17. ACCESS............................................... 18
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18. WAIVER OF SUBROGATION................................ 18
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19. INDEMNIFICATION...................................... 19
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20. ASSIGNMENT AND SUBLETTING............................ 19
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21. ADVERTISING.......................................... 21
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22. LIENS................................................ 21
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23. DEFAULT.............................................. 21
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24. SUBORDINATION AND ATTORNMENT......................... 24
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25. SURRENDER OF POSSESSION.............................. 25
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26. NON-WAIVER........................................... 25
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27. HOLDOVER............................................. 25
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28. CONDEMNATION......................................... 26
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29. NOTICES.............................................. 26
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30. MORTGAGEE PROTECTION................................. 26
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31. COSTS AND ATTORNEYS' FEES............................ 27
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32. BROKERS.............................................. 27
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33. LANDLORD'S LIABILITY................................. 27
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34. ESTOPPEL CERTIFICATES................................ 28
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35. FINANCIAL STATEMENTS................................. 28
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36. TRANSFER OF LANDLORD'S INTEREST...................... 29
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37. RIGHT TO PERFORM..................................... 29
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38. SUBSTITUTED PREMISES................................. 29
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39. SALES AND AUCTIONS................................... 30
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40. NO ACCESS TO ROOF.................................... 30
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41. SECURITY............................................. 30
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42. AUTHORITY OF TENANT.................................. 30
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43. NO ACCORD OR SATISFACTION............................ 31
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44. MODIFICATIONS FOR LENDER............................. 31
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45. PARKING.............................................. 31
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46. GENERAL PROVISIONS................................... 31
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47. RULES AND REGULATIONS................................ 33
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48. NO WARRANTIES OR REPRESENTATIONS BY LANDLORD......... 34
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49. LANDLORD'S CONSENT OR APPROVAL....................... 34
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50. WAIVER OF TRAIL BY JURY.............................. 35
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EXHIBIT A - LOCATION AND DIMENSIONS OF PREMISES
EXHIBIT B - SPECIAL STIUPLATIONS
EXHIBIT C - WORK LETTER
EXHIBIT D - RULES AND REGULATIONS
EXHIBIT E - CLEANING SPECIFICATIONS
LEASE SUMMARY SHEET
1. LANDLORD: Aetna Life Insurance Company
c/o Xxxxxxxx Xxxx Real Estate Services, Inc.
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
2. TENANT: Potomac Financial Group, L.L.C., a Virginia
limited liability company
3. TENANT'S ADDRESS
PRIOR TO OCCUPANCY: 00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
4. TENANT'S ADDRESS
UPON OCCUPANCY: 00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
5. PREMISES: Approximately 3,723 square feet on the second
floor of the Building known as Suite 250
6. TERM OF LEASE: YEARS: Five (5)
BEGINNING: December 1, 1995
ENDING: November 30, 2000
7. RENT: MINIMUM (BASE) MONTHLY RENT:
ADDITIONAL RENT: Increases in Operating Costs
and Property Taxes over a
1996 Base Year
ESCALATION: Three percent (3%) per annum
8. SECURITY DEPOSIT: (See Special Stipulation No. 3)
- FOR INFORMATIONAL PURPOSES ONLY -
LEASE
THIS LEASE (the "Lease") is made this ____ day of October, 1995, by and
between AETNA LIFE INSURANCE COMPANY, a Connecticut corporation ("Landlord"),
c/o Xxxxxxxx Xxxx Real Estate Services, Inc., and POTOMAC FINANCIAL GROUP,
L.L.C., a Virginia limited liability company, ("Tenant"), having an address of
00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
Landlord, for and in consideration of the rents and all other charges and
payments hereunder and of the covenants, agreements, terms, provisions and
conditions to be kept and performed hereunder by Tenant, demises and leases to
Tenant, and Tenant hereby hires and takes from Landlord, the premises described
below ("Premises"), subject to all matters hereinafter set forth and upon and
subject to the covenants, agreements, terms, provisions and conditions of this
Lease for the term hereinafter stated.
1. TERMS.
1.1 PREMISES. The Premises demised by this Lease are approximately
three thousand seven hundred twenty-three (3,723) square feet located on the
second (2nd) floor in Reston Plaza II (the "Building") at 00000 Xxxxxxx Xxxxxx
Xxxxx, Xxxxxx, Xxxxxxxx, together with a nonexclusive right to use parking and
other common areas (the "Property"). The rentable square footage of the Premises
has been determined by Landlord in accordance with WDCAR (89) standards. The
location and dimensions of the Premises are shown on EXHIBIT A, attached hereto
and incorporated herein by reference. No easement for light or air is included
in this Lease.
1.2 AGREED AREAS.The parties agree that the total rentable area of the
Building, the area of the Premises, and Tenant's percentage of the Building are
as follows:
Total rentable area of the Building: 48,832 sq. ft.;
Area of Premises: 3,723 sq. ft.; and
Tenant's percentage of the Building: 7.62%.
1.3 LEASE TERM. The parties agree that the Lease Commencement Date and
the Lease Expiration Date are as follows:
Lease Commencement Date: December 1, 1995.
Lease Expiration Date: 12:00 midnight on the last day of the sixtieth
(60th) full calendar month after the Lease
Commencement Date.
1.4 BASE RENT. The basic rent ("Base Rent") is $5,506.94 per month for
the five (5) years of the term hereof and thereafter shall increase as may be
set forth in EXHIBIT B attached hereto and incorporated herein by reference. In
addition to the Base Rent, Tenant shall pay all amounts designated as Additional
Rent ("Additional Rent") under this Lease, including but not limited to charges
for additional services under Section 8.2, increases in Operating Costs
of under Article 9, and increases in Property Taxes under Article 10, all of
which shall be deemed rent ("Rent") due under this Lease.
1.5 INITIAL PAYMENT. Tenant shall pay Landlord upon execution of this
Lease _______ and _______ Dollars ______ representing:
(a) the first month's Base Rent of ______ and
(b) the security deposit of $______
2. DELIVERY OF POSSESSION. If Landlord is unable to deliver possession of
the Premises to Tenant on the Lease Commencement Date this Lease shall not be
void or voidable, nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom, nor shall the expiration date of the term be extended, but
in such event Tenant shall not be liable for any Rent or other charges due under
this lease until such time as Landlord tenders delivery of possession of the
Premises to Tenant in accordance with the terms of the Tenant Work Letter
attached hereto. If Landlord is unable to deliver possession of the Premises to
Tenant by January 15, 1996, Tenant shall have the option to terminate this Lease
immediately upon written notice to Landlord and Landlord shall return all
prepaid rent, security deposit and all other sums paid by Tenant within five (5)
business days of such notice. Should Landlord tender possession of the Premises
to Tenant prior to the date specified as the Lease Commencement Date, and Tenant
elects to accept such prior tender, such prior occupancy shall be subject to all
terms, covenants and conditions of this Lease, including the payment of Rent.
3. PAYMENT OF RENT. Except as otherwise provided in this Lease, Tenant
shall pay Landlord the Rent and any other payments due under this Lease without
prior notice, deduction or offset, in lawful money of the United States in
advance on or before the first day of each month, except that the first month's
Base Rent shall be paid upon the execution hereof, at the address noted in
Section 29, or to such other party or at such other place as Landlord may
hereafter from time to time designate in writing. Rent and other amounts due
under this Lease for any partial month at the beginning or end of the Lease term
shall be prorated, on a per diem basis.
4. SECURITY DEPOSIT. As security for its full and faithful performance of
this Lease, Tenant shall pay Landlord a security deposit of Dollars ( ) upon
execution of this Lease. If Tenant defaults with respect to any covenant or
condition of this Lease beyond any applicable notice, grace and cure periods,
including but not limited to the payment of Rent or any other payment due under
this Lease, Landlord upon written notice to Tenant may apply all or any part of
the security deposit to the payment of any sum in default or any other sum which
Landlord may be required to or deem necessary to spend or incur by reason of
Tenant's default. In such event, Tenant shall, upon demand, deposit with
Landlord the amount so applied to replenish the security deposit. Within thirty
(30) days of the expiration or sooner termination of this Lease, Landlord will
refund Tenant the security deposit less any amounts necessary to cure any
existing default of Tenant at the time of expiration under this Lease.
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5. USES.
5.1 Permitted Uses. The Premises are to be used only for general
office purposes ("Permitted Uses") and for no other business or purpose without
the prior written consent of Landlord. No act shall be done in or about the
Premises that is unlawful or that will increase the existing rate of insurance
on the Building. In the event of a breach of this covenant, Tenant shall
immediately cease the performance of such unlawful act or such act that is
increasing or has increased the existing rate of insurance and shall pay to
Landlord any and all reasonable increases in insurance premiums resulting from
such breach. Tenant shall not commit or allow to be committed any affirmative
waste upon the Premises, or any public or private nuisance or other act or thing
which disturbs the quiet enjoyment of any other tenant in the Building. If any
of Tenant's office machines or equipment disturb any other tenant in the
Building, then Tenant shall provide adequate insulation, or take such other
action as may be necessary to eliminate the noise or disturbance at its sole
cost and expense. Tenant shall not, without Landlord's prior consent, install
any equipment, machine, device, tank or vessel which is subject to any federal,
state or local permitting requirement. Tenant, at its expense, shall comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements governing the installation, operation and removal of any such
equipment, machine, device, tank or vessel. Tenant, at its expense, shall comply
with all laws, statutes, ordinances, governmental rules, regulations or
requirements, and the provisions of any recorded documents now existing or
hereafter in effect relating to its use, operation or occupancy of the Premises
and shall observe such reasonable rules and regulations as may be adopted and
made available to Tenant by Landlord from time to time for the safety, care and
cleanliness of the Premises or the Building and for the preservation of good
order therein.
5.2 HAZARDOUS MATERIALS.
5.2.1 As used in this Lease, the term "Hazardous, Materials"
shall mean and include any substance that is or contains petroleum, asbestos,
polychlorinated biphenyls, lead, or any other substance, material or waste which
is now or is hereafter classified or considered to be hazardous or toxic under
any federal, state or local law, rule, regulation or ordinance relating to
pollution or the protection or regulation of human health, natural resources or
the environment (collectively "Environmental Laws") or poses or threatens to
pose a hazard to the health or safety of persons on the Premises or any adjacent
property.
5.2.2 Tenant agrees that during its use and occupancy of the
Premises it will not permit Hazardous Materials to be present on or about the
Premises except in a manner and quantity necessary for the ordinary performance
of Tenant's business and that it will comply with all Environmental Laws
relating to the use, storage or disposal of any such Hazardous Materials.
5.2.3 If Tenant's use of Hazardous Materials on or about the
Premises results in a release, discharge or disposal of Hazardous Materials on,
in, at, under, or emanating from, the Premises or the property in which the
Premises are located, Tenant agrees to investigate, clean up, remove or
remediate such Hazardous Materials in full compliance with (a) the requirements
of (i) all Environmental Laws and (ii) any governmental agency or authority
responsible for the enforcement of any Environmental Laws; and (b) any
additional requirements
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of Landlord that are reasonably necessary to protect the value of the Premises
or the property in which the Premises are located. Landlord shall also have the
right, but not the obligation, to take whatever action with respect to any such
Hazardous Materials that it deems reasonably necessary to protect the value of
the Premises or the property in which the Premises are located. All costs and
expenses paid or incurred by Landlord in the exercise of such right shall be
payable by Tenant upon demand.
5.2.4 Upon reasonable notice to Tenant, Landlord may inspect the
Premises for the purpose of determining whether there exists on the Premises any
Hazardous Materials or other condition or activity that is in violation of the
requirements of this Lease or of any Environmental Laws. The right granted to
Landlord herein to perform inspections shall not create a duty on Landlord's
part to inspect the Premises, or liability on the part of Landlord for Tenant's
use, storage or disposal of Hazardous Materials, it being understood that Tenant
shall be solely responsible for all liability in connection therewith.
5.2.5 Tenant shall surrender the Premises to Landlord upon the
expiration or earlier termination of this Lease free of debris, waste or
Hazardous Materials placed on or about the Premises by Tenant or its agents,
employees, contractors or invitees, and in a condition which complies with all
Environmental Laws.
5.2.6 Tenant agrees to indemnify and hold harmless Landlord from
and against any and all claims, losses (including, without limitation, loss in
value of the Premises or the property in which the Premises are located),
liabilities and expenses (including reasonable attorney's fees) sustained by
Landlord attributable to (i) any Hazardous Materials placed on or about the
Premises by Tenant or its agents, employees, contractors or invitees or (ii)
Tenant's breach of any provision of this Section 5.2.
5.2.7 The provisions of this Section 5.2 shall survive the
expiration or earlier termination of this Lease.
6. LATE CHARGES. Tenant hereby acknowledges that late payment to Landlord
of Rent or other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. If any Rent or other sum due from Tenant is not received
within ten (10) days of written notice of non-payment to Tenant past its due
date, then Tenant shall pay to Landlord immediately upon Landlord's demand
therefor a late charge in an amount equal to five percent (5%) of such overdue
amount, plus any reasonable attorneys' fees and costs incurred by Landlord by
reason of Tenant's failure to pay Rent and other charges when due hereunder.
7. REPAIRS AND MAINTENANCE. Landlord shall maintain, or cause, to be
maintained, in a first class condition the common areas of the Building, such as
lobbies, elevators, stairs, and corridors, the roof, foundations, and exterior
walls of the Building, and the underground utility and sewer pipes outside the
exterior walls of the Building, if any, except any of such repairs rendered
necessary by the negligence or willful misconduct of Tenant, its agents,
customers, employees, independent contractors, guests or invitees, the repair of
which shall be paid for by Tenant within ten (10) days of Landlord's written
demand. Subject to Landlord's
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right of access pursuant to Article 17, Tenant shall be exclusively responsible
for the interior of the Premises, which shall be maintained by Tenant in good
order and repair, and Landlord shall be under no obligation to inspect the
Premises or, except as otherwise expressly provided in this Lease, repair the
Premises. Tenant shall promptly report in writing to Landlord any defective
condition known to it which Landlord is required to repair. Tenant hereby waives
the right to make repairs at Landlord's expense under any law, statute or
ordinance now or hereafter in effect.
8. UTILITIES AND SERVICES.
8.1 SERVICE. From 8:00 a.m. to 6:00 p.m. on weekdays ("Normal Business
Hours") and from 9:00 a.m. to Noon on Saturday ("Saturday Mornings") (excluding
legal holidays), Landlord shall furnish to the Premises electricity for lighting
and operation of low-power usage office machines, including without limitation,
copiers, fax machines, printers and personal computers, water, heat. and air
conditioning, and elevator service. During all other hours, Landlord shall
furnish such services except for heat and air conditioning.
8.2 ADDITIONAL SERVICES. If requested by Tenant, Landlord shall
furnish heat and air conditioning at times other than Normal Business Hours and
Saturday Mornings and the cost of such services as established by Landlord shall
be paid by Tenant as Additional Rent, payable promptly upon receipt of Landlord
invoice. Currently, the overtime rate for utilities in the Building is $25.00
per hour. Landlord shall also provide toilet room supplies, window washing at
reasonable intervals, and customary Building janitorial service which shall
include the responsibilities set forth in EXHIBIT E attached hereto and by this
reference made a part hereof. Other types of services provided or caused to be
provided by Landlord to Tenant which are in addition to the services ordinarily
provided Building tenants shall be payable as provided in Section 9.1.1.2 of
this Lease. Landlord shall not be liable for any loss, injury or damage to
property caused by or resulting from any variation, interruption, or failure of
such services due to any cause whatsoever, or from failure to make any repairs
or perform any maintenance. In the event of any interruption of such services
for more than forty-eight (48) hours and such services are within Landlord's
control, Tenant shall be entitled to an abatement of Rent during the period of
such interruption. In no event shall Landlord be liable to Tenant for any damage
to the Premises or for any loss, damage or injury to any property therein or
thereon occasioned by bursting, rupture, leakage or overflow of any plumbing or
other pipes or other similar cause in, above, upon or about the Premises or the
Building. If additional tenants request overtime services on a day when Tenant
requests such services, the actual cost thereof shall be pro rated among all
such tenants.
9. COST OF SERVICES AND UTILITIES.
9.1 DEFINITIONS. In addition to the Base Rent and other Additional
Rent as set forth in this Lease, Tenant shall pay to Landlord as Additional Rent
increases under this Article 9. Said increases shall be made as provided herein,
using the following definitions:
9.1.1 "OPERATING COSTS" Shall include Costs of Utilities and
other Operating Costs.
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9.1.1.1 "COSTS OF UTILITIES" shall mean all expenses paid or
incurred by Landlord, including any surcharges imposed, for electricity, water,
gas, sewers, oil and utility services for the Building, land and parking and
other common areas.
9.1.1.2 "OTHER OPERATING COSTS" shall mean all other
expenses paid or incurred by Landlord for maintaining, operating, replacing,
repairing, and managing (i) the Building, (ii) the personal property used in
conjunction therewith, (iii) the Building roof, or (iv) the land upon which the
Building is situated, including all curbs and sidewalks adjacent to the same.
Such costs shall include, without limitation, supplies, cleaning services,
garbage and trash collection, personal property taxes, replacement lighting,
maintenance and service contracts, wall and window washing, towel service,
machinery, equipment, a reasonable management fee in an amount not in excess of
that prevailing in similar buildings in the Reston, Virginia area, window glass
replacement and repair, landscaping services of independent contractors
(including, without limitation, ice and snow removal), compensation (including
employment taxes and fringe benefits) of on-site employees up to the level of
Building Manager who perform regular and recurring duties in connection with the
management, operation, maintenance, replacement and repair of the Building, the
personal property and equipment used in conjunction therewith and the land upon
which the Building is situated and all curbs and sidewalks adjacent to the same,
capital improvements to the Building which are required by local or governmental
authorities or which are reasonably expected to reduce Operating Costs,
insurance premiums, repair, replacement and maintenance costs required by any
applicable federal, state or local law now or hereafter in affect, permits and
inspection fees, reasonable legal fees and costs incurred in connection with
contesting the amounts or the imposition of any Property Taxes (as defined in
Article 10) , and accounting fees and any other expense or charge whether or not
hereinbefore described which, in accordance with generally accepted accounting
and management practices, would be considered an expense of maintaining,
operating, replacing or repairing the Building, the personal property and
equipment used in conjunction therewith, and the land upon which the Building is
situated and all curbs and sidewalks adjacent to the same, excluding: (a) costs
of any special services rendered to individual tenants (including Tenant), for
which a special, separate charge shall be made (and which shall be payable by
such tenant [including Tenant], as Additional Rent within ten (10) days of
written demand therefor); (b) Property Taxes; and (c) depreciation or
amortization of costs required to be capitalized in accordance with generally
accepted accounting practices (except that Operating Costs shall include
amortization of any energy management system or other capital improvements which
are made pursuant to the requirement of any local or governmental authority or
which are reasonably expected to reduce operating Costs).
9.1.1 In addition to the foregoing, "Operating Costs" shall not
include any of the following:
(i) Any cost which would have been reimbursed if Landlord had
maintained the insurance customarily maintained by landlords
of comparable properties;
(ii) Costs of alterations or improvements of the leased promises
of any tenant in the Building;
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(iii) Costs of correcting defects in the initial construction of
the Building;
(iv) Real estate brokers' commissions, advertising or
promotional/marketing expenses incurred in leasing or
procuring tenants of space in the building (including, but
not limited to, any rent or other expenses or any on-site
leasing office);
(v) Deprecation of the Building or any equipment, fixtures or
improvements therein;
(vi) Any bad debt loss or rent loss;
(vii) Deductible amounts paid by Landlord in connection with
claims made by Landlord under insurance policies (including,
but not limited to, expenses for repairs occasioned by a
casualty);
(viii) Expenses for the operation of parking areas or other
concessions, or expenses incurred in connection with any
other areas of the Building which are not devoted
exclusively to office purposes (including, but not limited
to, expenses incurred in connection with the operation,
maintenance or repair of any retail areas);
(ix) Costs associated with the formation or maintenance of any
legal entity constituting Landlord from time to time
(including, but not limited to, trustee's fee(s), annual
franchise fees, organizational or administrative expenses or
accounting fees (other than with respect to Building
operations));
(x) General overhead or general administrative expenses of
Landlord not specifically relating to the Property;
(xi) Costs associated with the acquisition, confirmation, or
defense of Landlord's title to or interest in the Property;
(xii) Costs associated with financing, refinancing, pledging,
selling, granting or otherwise transferring or encumbering
ownership interests in the Property (including, but not
limited to, prepayment of indebtedness, mortgaging, or
ground leasing of the Building);
(xiii) Any costs incurred in obtaining or renewing a certificate
of occupancy;
(xiv) Acquisition or rental of fine art;
(xv) Costs of sewer or water tap or connection fees;
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(xvi) Costs of renovating the lobbies or other common areas of
the Building;
(xvii) Any costs or expenses related to or in connection with a
dispute with any holder of a mortgage on or loan in
connection with the Building;
(xviii) Construction of all or any part of the Building or the
Property;
(xix) Reserves for repairs, maintenance or replacements;
(xx) Costs of Building services provided to other tenants outside
of normal Building hours; or
(xxi) Exceeding the level of services, utilities and/or
facilities which are generally provided without cost to
tenants in comparable buildings in the Northern Virginia
area which are substantially tenanted by unrelated parties.
9.1.2 "LEASE YEAR" shall mean the twelve-month period commencing
January 1 and ending December 31.
9.1.3 "BASE SERVICES YEAR" shall mean calendar year 1996.
9.1.4 "ACTUAL COSTS" shall mean the actual expenses paid or
incurred by Landlord for Operating Costs during any Lease Year of the term
hereof.
9.1.5 "ACTUAL COSTS ALLOCABLE TO THE PREMISES" shall mean
Tenant's share of the Actual Costs determined by multiplying Tenant's percentage
of the Building described in Section 1.2 by the Actual Costs.
9.1.6 "ESTIMATED COSTS ALLOCABLE TO THE PREMISES" shall mean
Landlord's estimate or Actual Costs Allocable to the Premises for the following
Lease Year to be given by Landlord to Tenant pursuant to Section 9.3.
9.2 BASE AMOUNT. Operating Costs allocable to the Premises for
the Base Services Year shall be deemed the "Base Amount".
9.3 ADDITIONAL RENT. Prior to the commencement of each Lease Year
(except the Base Services Year) during the term hereof, Landlord shall furnish
Tenant a written statement or the Estimated Costs Allocable to the Premises for
such Lease Year and a calculation of the portion of Estimated Costs Allocable to
the Premises payable by Tenant as Additional Rent in accordance with this
Section. In advance of or before the first day of each month during the term
hereof commencing on the first day of the first Lease Year following the Base
Services Year, Tenant shall pay as Additional Rent for each month during each
such Lease Year: one-twelfth (1/12th) of the amount, if any, by which the
Estimated Costs Allocable to the Premises exceed the Base Amount. If at any time
or times during any such Lease Year, it appears to Landlord that the Estimated
Costs Allocable to the Premises will vary from Landlord's
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estimate by more than five percent (5%) on an annualized basis, Landlord may, by
written notice to Tenant, revise its estimate for such Lease Year and the
portion of the Estimated Costs Allocable to the Premises payable by Tenant as
Additional Rent as provided herein for such Lease Year shall be accordingly
adjusted based on such revised estimate.
9.4 ACTUAL COSTS. Within ninety (90) days after the close of each
Lease Year during the term hereof, Landlord shall deliver to Tenant a written
statement setting forth the Actual Costs Allocable to the Premises during the
preceding Lease Year. If such costs for any Lease Year less the Base Amount
exceed the amounts paid by Tenant to Landlord pursuant to Section 9.3, Tenant
shall pay the amount of such excess to Landlord as Additional Rent within thirty
(30) days after receipt of such statement by Tenant. If such statement shows
such costs to be less than the amount paid by Tenant to Landlord pursuant to
Section 9.3, then the amount of such overpayment by Tenant shall be credited by
Landlord to the next Rent payable by Tenant. In the event such overpayment can
not be fully credited by Landlord to the next Rent payable by Tenant due to the
expiration of the term of this Lease, any remaining overpayment shall be
credited by Landlord to any other charges due under this Lease and, to the
extent no such charges are due, shall be refunded to Tenant by Landlord within
thirty (30) days of the Lease Expiration Date.
9.5 END OF TERM. If this Lease terminates on a day other than the last
day of a Lease Year, the amount of any adjustment to Estimated Costs Allocable
to the Premises with respect to the Lease Year in which such termination occurs
shall be prorated on the basis which the number of days from the commencement of
such Lease Year to and including such termination date bears to 365; and any
amount payable by Landlord to Tenant or Tenant to Landlord with respect to such
adjustment shall be payable within thirty (30) days after delivery by Landlord
to Tenant of the statement of Actual Costs Allocable to the Premises with
respect to such Lease Year.
9.6 FURTHER ADJUSTMENT. In the event the average occupancy level of
the Building for the Base Services Year and/or any subsequent Lease Year was not
ninety-five percent (95%) or more of full occupancy, then the Actual Costs for
such year shall be adjusted and apportioned among the tenants by Landlord to
reflect those costs which would have occurred had the Building been ninety-five
percent (95%) occupied during such year.
10. PROPERTY TAXES.
10.1 CONTRIBUTION TO TAXES. In addition to the Base Rent and other
Additional Rent, Tenant shall pay to Landlord, as Additional Rent, its share of
the increase in Property Taxes under this Article 10. Tenant's share of the
increase of such taxes shall be determined as provided herein, utilizing the
following definitions:
10.1.1 "Property Taxes" shall mean any form of assessment,
license, fee, rent tax, excise, imposition, charge, levy, or tax (other than net
income, estate, succession, inheritance, transfer or franchise taxes),
including, without limitation, all ad valorem, sales and use, value added,
single business, gross receipts, transactions, sewer, privilege or similar
taxes, imposed by any authority having the direct or indirect power to tax, or
by any city, county, state
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or federal government or any improvement or other district or division thereof,
on the Building or any part thereof, the land, the parking area, or any other
legal or equitable interest of Landlord in the same.
10.1.2 The Term "Lease Year" shall mean the period defined in
Section 9.1.2.
10.1.3 The term "Base Tax Year" shall mean the calendar year
1996.
10.1.4 The term "Tenant's Share of Property Taxes" shall mean the
amount of Property Taxes payable during any Lease Year by Landlord multiplied by
Tenant's percentage of the Building described in section 1.2.
10.2 ADDITIONAL RENT FOR ESTIMATED INCREASES IN TENANT'S SHARE OF
PROPERTY TAXES. Prior to the commencement of each Lease Year (except the Base
Tax Year), Landlord shall furnish Tenant with a written statement setting forth
the estimate of Tenant's Share of Property Taxes for such Lease Year.
One-twelfth (1/12th) of the amount, if any, by which such estimated Tenant's
Share of Property Taxes exceeds Tenant's Share of Property Taxes for the Base
Tax Year shall be Additional Rent payable by Tenant as provided in Article 3.
10.3 ACTUAL PROPERTY TAXES. Within ninety (90) days after the close of
each Lease Year during the term hereof, Landlord shall deliver to Tenant a
written statement setting forth Tenant's Share of Property Taxes during the
preceding Lease Year. If such amount less Tenant's Share of Property Taxes for
the Base Tax Year ("Tenant's Actual Share") exceeds the amount of Property Taxes
actually paid by Tenant to Landlord pursuant to Section 10.2 hereof, Tenant
shall pay the amount of such excess to Landlord as Additional Rent within thirty
(30) days after receipt of such statement by Tenant. If such statement shows
Tenant's Actual Share to be less than the amounts paid by Tenant to Landlord
pursuant to Section 10.2, then the amount of such overpayment shall be credited
by Landlord to the next Rent payable by Tenant. In the event such overpayment
can not be fully credited by Landlord to the next monthly Rent or subsequent
monthly Rent payable by Tenant due to the expiration of the term of this Lease,
any remaining overpayment shall be credited by Landlord, until such credit is
used up, to any other charges due under this Lease and, to the extent no such
charges are due, shall be refunded to Tenant by Landlord within thirty (30) days
of the Lease Expiration Date.
10.4 TAXES ON PERSONAL PROPERTY PAID FOR BY TENANT AND NOT REIMBURSED
BY LANDLORD. Tenant shall pay, prior to delinquency, all personal property taxes
payable with respect to all property of Tenant located on the Premises or the
Building and shall provide promptly, upon request of Landlord, written proof of
such payment.
10.5 END OF TERM. If this Lease terminates on a day other than the
last day of a Lease Year, the amount of any adjustment between the estimated and
actual Tenant's Share of Property Taxes with respect to the Lease Year in which
such termination occurs shall be prorated on the basis of a 365-day year; and
any amount payable by Landlord to Tenant or Tenant to Landlord with respect to
such adjustment shall be payable within thirty (30) days after delivery
10
by Landlord to Tenant of the statement of Tenant's Share of Property Taxes with
respect to such Lease Year.
10.6 FURTHER ADJUSTMENT. In the event the average occupancy level of
the Building for the Base Services Year and/or any subsequent Lease Year was not
ninety-five percent (95%) or more of full occupancy, then the Property Taxes for
such year shall be proportionately adjusted among the tenants by Landlord to
reflect those costs which would have occurred had the Building been ninety-five
percent (95%) occupied during such year.
11. LIABILITY AND CASUALTY INSURANCE. Tenant shall, at Tenant's expense,
obtain and keep in force during the term of this Lease a policy of comprehensive
general liability insurance, including personal injury liability and contractual
liability, insuring Landlord and Tenant against any liability arising out of the
use, occupancy or maintenance of the Premises. Such insurance shall be in the
amount of not less than One Million and No/100ths Dollars ($1,000,000.00) for
bodily injury and property damage for any one accident or occurrence. Fire and
casualty insurance with extended coverage in an amount of not less than Fifty
Thousand and No/100ths Dollars ($50,000.00) shall also be obtained and kept in
force during the term of this Lease at Tenant's expense. The limit of any of
such insurance shall not limit the liability of Tenant hereunder. If Tenant
fails to procure and maintain such insurance, Landlord may, but shall not be
required to, procure and maintain the same, at Tenant's expense to be reimbursed
by Tenant as Additional Rent within ten (10) days of written demand. All
insurance required to be obtained by Tenant hereunder shall be issued by
companies acceptable to Landlord. Thirty (30) days prior to the Lease
Commencement Date, Tenant shall deliver to Landlord certificates of liability
insurance required herein with loss payable clauses satisfactory to Landlord.
Any deductible under such insurance policy in excess of One Thousand and
No/100ths Dollars ($1,000.00) must be approved by Landlord in writing prior to
issuance of such policy. No policy shall be cancelable, allowed to lapse and/or
expire and/or be subject to reduction of coverage except upon thirty (30) days'
prior written notice to Landlord. All such policies shall name Landlord as an
additional insured and shall be written as primary policies not contributing
with and not in excess of coverage which Landlord may carry. The policy limits
set forth herein shall be subject to periodic review, and Landlord reserves the
right to require that Tenant increase the liability coverage limits if, in the
reasonable opinion of Landlord, the coverage becomes inadequate and is less than
commonly maintained by tenants making similar uses in the area of similar
buildings. Tenant shall obtain any revised or increased coverage required by
Landlord within thirty (30) days of any such notification from Landlord.
12. FIRE INSURANCE - FIXTURES AND EQUIPMENT. Tenant shall maintain in full
force and effect on all Tenant's trade fixtures, equipment and personal property
on the Premises, a policy of all risk property insurance covering the full
replacement value of such property. During the term of this Lease, the proceeds
from any such policy of insurance shall be used for the repair or replacement of
the fixtures and equipment so insured. Landlord shall have no interest in the
insurance upon Tenant's equipment and fixtures and will sign all documents
reasonably necessary or proper in connection with the settlement of any claim or
loss by Tenant. Landlord will not carry insurance on Tenant's possessions other
than leasehold improvements. Tenant shall furnish Landlord with a certificate of
insurance evidencing that the requirements set forth herein are in full force
and effect. Any deductible in excess of Two Thousand Five Hundred and No/100ths
Dollars ($2,500.00) under such insurance must be approved in writing
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by Landlord prior to issuance of such policy. Upon demand, Tenant shall provide
Landlord, at Tenants expense, with such increased amount of existing insurance,
and such other insurance as Landlord or Landlord's lender may reasonably
require, to afford Landlord and Landlord's lender adequate protection. Tenant
shall provide Landlord with notice of loss or damage to property immediately
after such loss or damage occurs. Tenant shall provide and keep in force with
companies satisfactory to Landlord, business interruption insurance in an amount
equivalent to six (6) months Rent and Additional Rent which shall not contain a
deductible greater than One Thousand Dollars ($1,000.00). Tenant shall furnish
Landlord with certificates of insurance naming Landlord as an additional
insured. No policy shall be cancelable, allowed to lapse and/or expire and/or be
subject to reduction of coverage except upon thirty (30) days' prior written
notice to Landlord.
13. DAMAGE OR DESTRUCTION.
13.1 CASUALTY DAMAGE - Insured. If the Building or Premises is damaged
by fire or other perils covered by extended coverage insurance the following
provisions shall apply:
13.1.1 TOTAL DESTRUCTION. In the event of total destruction of
the Building, Landlord shall elect either promptly to commence repair and
restoration of the Building and prosecute the same diligently to completion, in
which event this Lease shall remain in full force and effect, or not to repair
or restore the Building, in which event this Lease shall terminate. In either
case, Landlord shall give Tenant written notice of its intention within ninety
(90) days after the occurrence of such destruction. If Landlord elects not to
restore the Building, this Lease shall be deemed to have terminated as of the
date of such total destruction. In the event that the repair or restoration
cannot be completed within one hundred eighty (180) days after the date of the
casualty, Tenant shall have the right to terminate this Lease within ten (10)
days after Tenant's receipt of Landlord's notice of intent to repair or restore.
13.1.2 PARTIAL DESTRUCTION. In the event of a partial destruction
of the Building to an extent not exceeding twenty-five percent (25%) of the
value thereof and if the damage thereto is such that the Building may be
repaired or restored within ninety (90) days from the date of such destruction
and Landlord will receive insurance proceeds sufficient to cover the cost of
such repairs, Landlord shall commence and proceed diligently with the work of
repair and restoration, in which event this Lease shall continue in full force
and effect; or if such repair and restoration requires longer than ninety (90)
days or the cost thereof exceeds twenty-five percent (25%) of the value thereof
or if the insurance proceeds payable to Landlord will not be sufficient to cover
such cost, Landlord may elect either to so repair and restore, in which event
this Lease shall continue in full force and effect, or not to repair or restore,
in which event this Lease shall terminate. In either case, Landlord shall give
written notice to Tenant of its intention within ninety (90) days after the
destruction occurs. If Landlord elects not to repair or restore the Building,
this Lease shall be deemed to have terminated as of the date of such partial
destruction. In the event that the repair or restoration cannot be completed
within one hundred eighty (180) days after the date of the casualty, Tenant
shall have the right to terminate this Lease within ten (10) days after Tenant's
receipt of Landlord's notice of intent to repair or restore.
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13.2 TERMINATION. Upon any termination of this Lease under any of the
provisions of this Article, Tenant shall surrender the Premises in accordance
with the provisions of Article 25.
13.3 RENT ABATEMENT. In the event of repair and restoration as herein
provided, the monthly installments of Rent shall be equitably abated based on
the amount of Tenant's loss of use of the Premises occasioned thereby; provided,
however, if the damage is due, directly or indirectly, to the fault or neglect
of Tenant, its officers, contractors, licensees, agents, servants, employees,
guests, invitees or visitors, there shall be no abatement of Rent, except to the
extent Landlord receives proceeds from any applicable insurance policy of Tenant
to compensate Landlord for loss of Rent. Tenant shall not be entitled to any
compensation or damages for loss of use of the whole or any part of said
Premises and/or any inconvenience or annoyance occasioned by such damage, repair
or restoration.
13.4 DELAY. Tenant shall not be released from any of its obligations
under this Lease except to the extent and upon the conditions expressly stated
in this Article. Notwithstanding anything to the contrary contained in this
Article, if Landlord has elected to repair or restore and is thereafter delayed
or prevented from repairing or restoring within one hundred eighty (180) days
after the occurrence of such damage or destruction by reason of acts of God,
war, governmental restrictions, inability to procure the necessary labor or
materials, or other causes beyond the control of Landlord, Landlord shall, at
Landlord's option, be relieved of its obligation to make such repair or
restoration and Tenant shall be released from its obligations under this Lease
as of the end of such one (1) year period.
13.5 UNINSURED DAMAGE. Notwithstanding anything to the contrary
contained in this Article, if damage to the Building or the Premises is due to
any cause other than fire or other peril covered by extended coverage insurance,
Landlord may elect to terminate this Lease.
13.6 REPAIR OBLIGATION. If Landlord is obligated to or elects to
repair or restore as herein provided, Landlord shall repair or restore only
those portions of the Building and Premises which were originally provided at
Landlord's expense; and the repair and restoration of areas or items not
provided at Landlord's expense shall be the obligation of Tenant.
13.7 END OF TERM. Notwithstanding anything to the contrary contained
in this Article, Landlord may elect to terminate this Lease in the event of
damage to the Building or the Premises occurring during the last (12) months of
the term of the Lease or any extension thereof; and Landlord shall not have any
obligation to repair or restore the Premises or the Building during the last
twelve (12) months of the term of this Lease or any extension thereof.
14. ALTERATIONS AND ADDITIONS: REMOVAL OF FIXTURES.
14.1 CONSENT REQUIRED. Tenant shall not make or allow to be made any
alterations, additions or improvements (collectively "Alterations") to or on the
Premises (except for non-structural interior alterations in an amount less than
$10,000) without first obtaining the written consent of Landlord, which consent
shall not be unreasonably withheld, delayed or conditioned.
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14.2 REQUEST FOR ALTERATIONS. Any request for Alterations to be made
to the Premises by Tenant shall be made in writing, which shall include detailed
plans and specifications of the proposed Alterations prepared by an architect
approved by Landlord and licensed in the jurisdiction in which the Premises is
located, together with the names and addresses of the proposed contractors and
subcontractors, all of whom shall be approved and licensed as aforesaid. Tenant
shall upon demand reimburse Landlord as Additional Rent for all reasonable cost
and expense actually incurred in reviewing the plans and specifications and
inspecting the work on behalf of Landlord (by persons other than employees of
Landlord) including without limitation, the cost of any engineers and/or
architects retained by Landlord to review same and inspect the work on behalf of
Landlord.
14.3 NATURE OF ALTERATIONS. Any Alterations, including, but not
limited to, wall covering, paneling and built-in cabinet work (but excepting
moveable furniture and trade fixtures), shall be made at Tenant's sole expense,
according to plans and specifications approved in writing by Landlord, in
compliance with all applicable laws, by a licensed contractor, and in a good and
workmanlike manner conforming in quality and design with the Premises existing
as of the Lease Commencement Date, shall not diminish the value of the Building
or the Premises and shall at once become a part of the realty and shall be
surrendered with the Premises (unless otherwise required by Landlord as set
forth in Section 14.5 below).
14.4 REPAIRS. Tenant shall be responsible for making any and all
repairs and replacements to the Alterations during the term of this Lease (as
same may be extended) and maintaining the same in good order and condition.
Notwithstanding anything to the contrary contained in this Lease, should there
be a fire or other casualty to the Premises, it is agreed by the parties that
Landlord shall not be responsible to restore any Alterations made by Tenant
regardless of whether such Alterations were approved by Landlord and Tenant
shall be responsible to restore the same at its sole cost and expense.
14.5 EXPIRATION/TERMINATION OF LEASE. Upon the expiration or sooner
termination of the term hereof, Tenant shall, upon written demand by Landlord,
at Tenant's sole expense, with due diligence, remove any alterations, additions,
or improvements made by Tenant, designated by Landlord to be removed at the time
of Landlord's approval of such request, and repair any damage to the Premises
caused by such removal. Tenant shall remove all of Tenant's moveable property
and trade fixtures which can be removed without damage to the Premises at the
termination of this Lease, either by expiration of the term or other cause, and
shall pay Landlord any damages for injury to the Premises or Building resulting
from such removal. If Tenant shall fail to remove any of its property of any
nature whatsoever (other than moveable property and trade fixtures) from the
Premises or Building at the termination of this Lease or when Landlord has the
right of reentry, such property shall be deemed to have been abandoned by Tenant
and Landlord may, in accordance with the provisions of applicable statutes
governing commercial landlord and tenant matters, without liability for the loss
thereof or damage thereto, either remove and store such property, such storage
to be for the account and at the expense of Tenant, or otherwise dispose of such
property in Landlord's sole and absolute discretion, all at the expense of
Tenant. If Landlord elects to store such property and Tenant fails to pay the
cost of storing any such property within thirty (30) days of demand therefor,
Landlord may sell any or all such property at public or private sale, without
notice to Tenant, and shall apply the proceeds of such sale to the following
costs in the following order: (i) the cost and
14
expense of such sale, including reasonable attorneys' fees, (ii) the payment of
the costs or charges for storing any such property, and (iii) the payment of any
other sum which may then be or thereafter become due Landlord from Tenant under
any of the terms of this Lease. The balance, if any, shall be paid to Tenant.
15. ACCEPTANCE OF PREMISES. Unless Landlord has expressly agreed in
this Lease to perform certain tenant improvement work in the Premises, Tenant
shall be deemed to have accepted the Premises on the Lease Commencement Date in
their "AS IS" condition. If tenant improvements are to be constructed by
Landlord in the Premises, the acceptance of the Premises by Tenant shall be
deemed to have occurred five (5) days after receipt by Tenant of an architect's
certificate of readiness certifying that the premises are ready for occupancy;
at such time, Tenant shall be deemed to have accepted the Premises in their then
condition except for any "punch list" items (as that term is used in the
construction industry) noted by Tenant in writing to Landlord within such five
(5) day period pursuant to any inspection of the Premises made by Tenant within
such five (5) day period. Landlord shall complete the punch list items within a
reasonable period following the expiration of such five (5) day period. The
existence of such punch list items shall not postpone the Lease Commencement
Date of this Lease nor the obligation of Tenant to pay Rent or any other charges
due under this Lease.
16. TENANT IMPROVEMENTS. If Landlord has agreed to make any
improvement to the Premises the provisions governing the planning, construction,
scope of work and terms of payment shall be set forth in EXHIBIT C, which, if
attached hereto, is incorporated herein by this reference.
17. ACCESS. Tenant shall permit Landlord and its agents to enter the
Premises at all reasonable times upon prior notice (except in case of emergency)
to inspect the same; to show the Premises to prospective tenants (within six (6)
months of the expiration of the term of this Lease), or interested parties such
as prospective lenders and purchasers; to exercise its rights under this Lease;
to clean, repair, alter or improve the Premises or the Building; to discharge
Tenant's obligations when Tenant has failed to do so within the time required
under this Lease; to post notices of nonresponsibility and similar notices and
"For Sale" signs at any time and to place "For Lease" signs upon or adjacent to
the Building or the Promises at any tine within six (6) months of the expiration
of the term of this Lease. Tenant shall permit Landlord and its agents to enter
the Premises at any time in the event of an emergency. When reasonably
necessary, Landlord may temporarily close entrances, doors, corridors, elevator
or other facilities without liability to Tenant by reason of such closure.
18. WAIVER OF SUBROGATION.
18.1 TENANT'S WAIVER. Whether due to the negligence of Landlord or
Landlord's agents or employees, or any other cause, Tenant hereby releases
Landlord and Landlord's agents and employees from responsibility for and waives
its entire claim of recovery for (i) any loss or damage to the personal property
of Tenant located in the Building, including the Building itself, arising out of
any of the perils which are (or could have been) covered by Tenant's property
insurance policy, with extended coverage endorsements, or (ii) loss resulting
from business interruption or loss of rental income, at the Premises, arising
out of any of the perils which are (or could have been) covered by the business
interruption or by the loss of rental
15
income insurance policy held by Tenant. Tenant shall cause its insurance
carrier(s) to consent to such waiver of all rights of subrogation against
Landlord.
18.2 LANDLORD'S WAIVER. Whether due to the negligence of Tenant or
Tenant's agents or employees, or any other cause, Landlord hereby releases
Tenant and Tenant's agents and employees from responsibility for and waives its
entire claim of recovery for (i) any loss or damage to the personal property of
Landlord located in the Building, including the Building itself, arising out of
any of the perils which are (or could have been) covered by Landlord's property
insurance policy, with extended coverage endorsements, or (ii) loss resulting
from business interruption or loss of rental income, at the Premises, arising
out of any of the perils which are (or could have been) covered by the business
interruption or by the loss of rental income insurance policy held by Landlord.
Landlord shall cause its insurance carrier(s) to consent to such waiver of all
rights of subrogation against Tenant.
19. INDEMNIFICATION. Tenant shall defend, indemnify and hold harmless
Landlord, its agents, employees, officers, directors, partners and shareholders
from and against any and all liabilities, judgments, demands, causes of action,
claims, losses, damages, costs and expenses, including reasonable attorneys'
fees and costs, arising out of the use, occupancy, conduct, operation, or
management of the Premises by, or the willful misconduct or negligence of,
Tenant, its officers, contractors, licensees, agents, servants, employees,
guests, invitees, or visitors in or about the Building or Premises or arising
from any breach or default under this Lease by Tenant, or arising from any
accident, injury, or damage, howsoever and by whomsoever caused, to any person
or property, occurring in or about the Building or Premises. This
indemnification shall survive termination of this Lease. This provision shall
not be construed to make Tenant responsible for loss, damage, liability or
expense resulting from injuries to third parties caused by the sole negligence
or willful misconduct of Landlord, or its officers, contractors, licensees,
agents, employees, or invitees.
20. ASSIGNMENT AND SUBLETTING.
20.1 LANDLORD'S CONSENT. Tenant shall not assign this Lease, or
sublease all or any part of the Premises, or permit the use of the Premises by
any party other than Tenant and Gemini Air Cargo, L.L.C., without the prior
written consent of Landlord which consent shall not be unreasonably, withheld,
delayed or conditioned. When Tenant requests Landlord' consent to such
assignment or sublease, it shall notify Landlord in writing of (i) the name and
address of the proposed assignee or subtenant; (ii) the nature and character of
the business of the proposed assignee or subtenant; (iii) financial information
including financial statements of the proposed assignee or subtenant; and (iv) a
copy of the proposed sublet or assignment agreement. Tenant shall thereafter
immediately provide to Landlord any and all other information and documents
reasonably requested by Landlord in order to assist Landlord with its
consideration of Tenant's request hereunder. Landlord shall have the option (to
be exercised within twenty (20) days from the submission of Tenant's request and
receipt of all other information requested hereunder) to cancel this Lease as it
affects the portion of the Premises to be subleased or assigned as of the
commencement date stated in the proposed sublease or assignment. If Landlord
shall not exercise its option within the time set forth above, Landlord's
consent to any proposed assignment or sublease shall not be unreasonably
withheld.
16
20.2 APPROVED SUBLEASES AND ASSIGNMENTS. If Landlord approves an
assignment or sublease as herein provided, Tenant shall pay to Landlord, as
Additional Rent due under this Lease, as applicable fifty percent (50%) of the
following: (i) in the case of a sublease, an overage amount equal to the
difference, if any, between the Rent allocable to that part of the Premises
affected by such sublease pursuant to this Lease, and the rent paid by the
subtenant to Tenant, less any reasonable and customary expenses incurred by
Tenant in connection with the sublease which are approved by Landlord in its
reasonable discretion, and (ii) in the case of an assignment, an overage amount
equal to the consideration, if any, received by Tenant for such assignment, less
any reasonable and customary expenses incurred by Tenant in connection with the
sublease which are approved by Landlord in its reasonable discretion. Such
overage amounts shall be due and payable by Tenant to Landlord within ten (10)
days of Tenant's receipt of payment from the subtenant or assignee. Overage
amounts in the case of a sublease shall be calculated and adjusted (if
necessary) on a Lease Year (or partial Lease Year) basis, and there shall be no
cumulative adjustment for the term. No consent to any assignment or sublease
shall constitute a further waiver of the provisions of this Section, and all
subsequent assignments or subleases may be made only with the prior written
consent of Landlord not to be unreasonably withheld, delayed or conditioned. An
assignee of Tenant, at the option of Landlord, shall become directly liable to
Landlord for all obligations of Tenant hereunder and shall assume all such
obligations in writing in a form satisfactory to Landlord in its sole and
absolute discretion, but no sublease or assignment by Tenant shall relieve
Tenant of any liability hereunder. Any assignment or sublease without Landlord's
consent shall be void, and shall, at the option of Landlord, constitute a
default under this Lease. In the event that Tenant requests that Landlord
consider a sublease or assignment hereunder, Tenant shall pay Landlord's
reasonable fees, not to exceed Five Hundred and 00/100 Dollars ($500.00) per
transaction, incurred in connection with the consideration of such request,
inclusive of reasonable attorneys' fees and costs incurred by Landlord in
connection with the consideration of such request or such sublease or
assignment.
21. ADVERTISING. Tenant shall not display any sign, graphics, notice,
picture, or poster, or any advertising matter whatsoever, anywhere in or about
the Premises or the Building at places visible from anywhere outside or at the
entrance to the Premises without first obtaining Landlord's written consent
thereto, such consent to be at Landlord's sole discretion. Tenant shall be
responsible to maintain any permitted signs and remove the same at Lease
termination. If Tenant shall fail to do so, Landlord may do so at Tenant's
expense and Tenant's reimbursement to Landlord for such amount shall be deemed
Additional Rent and shall be due within ten (10) days of Landlord's demand
therefor. Tenant shall be responsible to Landlord for any damage caused by the
installation, use, maintenance or removal of any such signs.
22. LIENS. Tenant shall keep the Premises and the Building free, from any
liens, including but not limited to liens filed against the Premises by any
governmental agency, authority or organization, arising out of any work
performed, materials ordered or obligations incurred by or on behalf of Tenant,
and Tenant hereby agrees to indemnify and hold Landlord, its agents, employees,
independent contractors, officers, directors, partners, and shareholders
harmless from any liability, cost or expense for such liens. Tenant shall cause
any such lien imposed to be released of record by payment or posting of the
proper bond acceptable to Landlord within ten (10) days after the earlier of
imposition of the lien or written request by Landlord. Tenant shall give
Landlord written notice of Tenant's intention to perform work on the Premises
which might result in any claim of lien, at least ten (10) days prior to the
17
commencement of such work to enable Landlord to post and record a notice of
nonresponsibility or other notice deemed proper before commencement of any such
work. If Tenant fails to remove any lien within the prescribed ten (10) day
period, then Landlord may do so at Tenant's expense and Tenant's reimbursement
to Landlord for such amount, including attorneys' fees and costs, shall be
deemed Additional Rent. Tenant shall have no power to do any act or make any
contract which may create or be the foundation for any lien, mortgage or other
encumbrance upon the reversion or other estate of Landlord, or of any interest
of Landlord in the Premises.
23. DEFAULT.
23.1 TENANT'S DEFAULT A default under this Lease by Tenant shall exist
if any of the following occurs:
23.1.1 If Tenant fails to pay Rent or any other sum required to
be paid hereunder within ten (10) days of written notice of nonpayment on the
date when due; provided, however, that if Tenant fails to pay any sum required
to be paid hereunder when due, on two (2) or more occasions in a twelve (12)
month period, no notice by Landlord shall be required and Tenant shall be deemed
in default, as further stated in Section 23.1.5 of this Lease; or
23.1.2 If Tenant fails to perform any term, covenant or condition
of this Lease except those requiring the payment of money, and Tenant fails to
cure such breach within thirty (30) days after written notice from Landlord
where such breach could reasonably be cured within such thirty (30) day period,
provided, however, that where such failure could not reasonably be cured within
the thirty (30) day period, that Tenant shall not be in default if it commences
such performance within the thirty (30) day period and diligently thereafter
prosecutes the same to completion, or if Tenant shall fail to perform or observe
any of the provisions required to be performed or observed by Tenant under any
other agreement relating to the Premises; or
23.1.3 If, to the extent permitted by applicable law, there shall
be filed by or against Tenant, in any court pursuant to any statute either of
the United States or any state, a petition in bankruptcy or insolvency or for
the reorganization of or for the appointment of a receiver, trustee or
liquidator for all or any portion of the assets of Tenant, and, within sixty
(60) days thereafter, Tenant fails to secure a discharge thereof, or if Tenant
makes an assignment for the benefit of creditors, or if Tenant admits in writing
its or their inability to pay its or their debts; or
23.1.4 If Tenant shall fail to take possession of and/or occupy
the Premises within the thirty (30) days following the Lease Commencement Date
or if Tenant shall desert or abandon the Premises for a period of thirty (30)
days at any time following the Lease Commencement Date; or
23.1.5 The chronic delinquency by Tenant in the payment of
monthly Rent, or any other periodic payments required to be paid by Tenant under
this Lease, shall constitute a default. "Chronic delinquency" shall mean failure
by Tenant to pay Rent, or any other periodic payments required to be paid by
Tenant under this Lease within ten (10) days after written notice thereof for
any two (2) months (consecutive or nonconsecutive) during any twelve
18
(12) month period. In the event of a chronic delinquency, at Landlord's option,
Landlord shall have the additional right to require that Rent be paid by Tenant
quarter-annually, in advance.
23.2 REMEDIES. Upon a default, Landlord shall have the following
remedies, in addition to all other rights and remedies provided by law or
otherwise provided in this Lease, to which Landlord may resort cumulatively or
in the alternative:
23.2.1 Landlord may continue this Lease in full force and effect,
and this Lease shall continue in full force and effect as long as Landlord does
not terminate this Lease, and Landlord shall have the right to collect Rent and
other charges when due.
23.2.2 Landlord may terminate Tenant's right to possession of the
Premises at any time by giving written notice to that effect, and relet the
Premises or any part thereof. On the giving of the notice, all of Tenant's
rights in the Premises, shall terminate. Upon such termination, Tenant shall
surrender and vacate the Premises in the condition required by Article 25, and
Landlord may re-enter and take possession of the Premises and all the remaining
leasehold improvements, but not Tenant's personal property and eject Tenant or
any of Tenant's subtenants, assignees or other person or persons claiming any
right under or through Tenant or eject same and not others or eject none. This
Lease may also be terminated by a judgment specifically providing for
termination. Any termination under this Section shall not release Tenant from
the payment of any sum then due Landlord or from any claim for damages or Rent
or other sum previously accrued or then accruing against Tenant. Upon such
termination Tenant shall be liable immediately to Landlord for all costs
Landlord incurs in reletting the Premises or any part thereof, including,
without limitation, broker's commissions, expenses of cleaning and redecorating
the Premises required by the reletting and like costs. Reletting may be for a
period shorter or longer than the remaining term of this Lease. No act by
Landlord other than giving written notice to tenant shall terminate this Lease.
Acts of maintenance, efforts to relet the Premises or the appointment of a
receiver on Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to possession. In the
event that Tenant does not remove its personal property from the Premises within
twenty (20) days after Landlord notifies Tenant in writing that this Lease or
Tenant's right to possession hereunder has been terminated, Tenant's personal
property shall be deemed abandoned and may be removed by Landlord from the
Premises or stored on Tenant's behalf at Landlord's reasonable discretion.
Landlord and Tenant hereby acknowledge that in the event of such a termination,
actual damages to Landlord may be difficult to ascertain and, accordingly,
hereby agree that in such event, the net present value of the Base Rent due from
the date of such termination to the Lease Expiration Date, discounted at ten
percent (10%) per annum, less the fair rental value of the Premises as
reasonably determined by Landlord, which determination shall be deemed
conclusive, from the date of such termination until the Lease Expiration Date,
discounted at ten percent (10%) per annum, shall thereupon be immediately due
and payable to Landlord to compensate Landlord for Tenant's default and such
termination. Tenant waives redemption or relief from forfeiture under any other
present or future law, in the event Tenant is evicted or Landlord takes
possession of the Premises by reason of any default of Tenant hereunder beyond
applicable notice, grace and cure periods.
23.2.3 Landlord may terminate this Lease, re-enter the Premises
and remove all persons and property from the Premises; such property shall be
deemed to have been
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abandoned by Tenant, if Tenant does not remove such property within twenty (20)
days after written notice from Landlord and may be removed and stored in a
public warehouse or elsewhere or otherwise disposed of in Landlord's reasonable
discretion, all at the cost of Tenant. The parties hereby agree that Landlord
shall not be liable for the loss of such property or any damages thereto unless
due to Landlord's negligence or willful misconduct. No re-entry or taking
possession of the Premises by Landlord pursuant to this section shall be
construed as an election to terminate this Lease unless a written notice of such
intention is given to Tenant. A re-entry or taking possession of the Premises
may, however, be construed as a termination of Tenant's right of possession of
the Promises.
23.2.4 Landlord's rights pursuant to this Article, including
without limitation, Landlord's rights to collect Base Rent, Additional Rent and
other charges due under this Lease, shall survive any termination of the Lease,
whether such termination is affected pursuant to this Article or otherwise.
Notwithstanding anything to the contrary contained herein, Landlord and Tenant
hereby expressly agree that Landlord shall use reasonable efforts to mitigate or
to offset any damages which are or may be suffered by Landlord as a result of
any default of Tenant under the Lease. Any payment by Tenant of a sum of money
less than the entire amount due Landlord at the time of such payment shall be
applied to the obligations of Tenant then furthest in arrears. No endorsement or
statement on any check or accompanying any payment shall be deemed an accord and
satisfaction and any payment accepted by Landlord shall be without prejudice to
Landlord's right to obtain the balance due or pursue any other remedy available
to Landlord both in law and in equity.
24. SUBORDINATION AND ATTORNMENT. Landlord hereby represents and warrants
to Tenant that there are no mortgages or deeds of trust currently encumbering
the Building. Upon request of Landlord, Tenant will, in writing, subordinate its
rights hereunder to the lien of any mortgage, deed of trust, ground lease or
underlying lease now or hereafter in force against the Premises, and to all
advance made or hereafter to be made upon the security thereof provided the
holder thereof agrees in writing in a form reasonably satisfactory to the
parties not to disturb Tenant's possession in the event of a foreclosure or
deed-in-lieu of foreclosure. Tenant shall execute and return to Landlord any
such subordination documents within ten (10) business days of Landlord's written
request. If Tenant does not provide Landlord with such subordination documents
within ten (10) business days of Landlord's written request, then Tenant hereby
authorizes Landlord to execute such subordination documents acting as duly
authorized agent for Tenant provided the same is not inconsistent with the terms
hereof. In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or dead of trust
made by Landlord covering the Premises, Tenant shall attorn to the purchaser at
any such foreclosure, or to the grantee of a deed in lieu of foreclosure, and
recognize such purchaser or grantee as Landlord under this Lease provided such
party agrees in writing in a form reasonably satisfactory to the parties not to
disturb Tenant's possession so long as Tenant is not in default hereunder past
any applicable notice and cure period. The provisions of this Article to the
contrary notwithstanding, and so long as Tenant is not in default hereunder,
this Lease shall remain in full force and effect for the full term hereunder.
25. SURRENDER OR POSSIESSION. Upon expiration of the term of this Lease or
as otherwise provided hereunder, Tenant shall Promptly and peacefully surrender
the Premises to Landlord in as good condition as when received by Tenant from
Landlord or as thereafter
20
improved, reasonable use and wear and tear and damage by storm, fire, lightning,
earthquake or other casualty excepted, all to the reasonable satisfaction of
Landlord. If the Premises are not surrendered in accordance with the terms of
this Lease, Tenant shall indemnify Landlord and its agents, employees,
independent contractors, officers, directors, partners, and shareholders against
any loss or liability including reasonable attorneys' fees and costs, and
including liability to succeeding tenants, resulting from delay by Tenant in so
surrendering the Premises. This indemnification shall survive termination of
this Lease.
26. NON-WAIVER. Waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant, or condition(s); or any subsequent breach of the same or any other
term, covenant or condition of this Lease, other than the failure of Tenant to
pay the particular rental so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such Rent. No provision of
this Lease shall be deemed to have been waived or modified by Landlord or Tenant
unless such waiver or modification shall be in writing and signed by the party
against whom such waiver or modification is sought to be enforced.
27. HOLDOVER. If Tenant shall, without the written consent of Landlord,
hold over after the expiration of the term of this Lease such tenancy shall be
deemed a month-to-month tenancy, which tenancy may be terminated by either party
upon thirty (30) days written notice to the other party. During such tenancy,
Tenant agrees to pay to Landlord, each month, one hundred fifty percent (150%)
of the Rent Payable by Tenant for the last month of the term of this Lease.
28. CONDEMNATION. If twenty percent (20%) or more of the Premises or of
such portions of the Building as may be required for the reasonable use of the
Premises, are taken by eminent domain or sale under threat of condemnation by
eminent domain, this Lease shall automatically terminate as of the date title
vests in the condemning authority, and all Rent and other payments shall be paid
to that date. Landlord reserves all rights to damages to the Premises for any
partial or entire taking by eminent domain, and Tenant hereby assigns to
Landlord any right Tenant may have to such damages or award, and Tenant shall
make no claim against Landlord or the condemning authority for damages for
termination of the leasehold interest. Tenant shall have the right to claim and
recover from the condemning authority compensation for any loss which Tenant may
incur for Tenant's moving expenses, business interruption or taking of Tenant's
personal property (not including Tenant's leasehold interest).
29. NOTICES. All notices and demands which may be required or permitted to
be given to either party hereunder shall be in writing, and shall be sent by
overnight courier or United States mail, postage prepaid, certified or
registered with return receipt requested, to the addresses set forth below, or
to such other person or place as each party may from time to time designate in a
notice to the other. Notice shall be deemed received upon delivery, if sent by
overnight courier, or upon the earlier of, it sent by mail, actual receipt or
the third day after deposit in the United States mail, postage prepaid. Notices
shall be addressed as follows:
If to Landlord: If to Tenant:
Xxxxxxxx Xxxx Real Estate Potomac Financial Group, L.L.C.
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Services, Inc. 00000 Xxxxxxx Xxxxxx Xxxxx
0000 00xx Xxxxxx, X.X. Xxxxx 000
Washington, D. C. 20007 Xxxxxx, Xxxxxxxx 00000
Attn: Property Manager Attn: Xx. Xxx Xxxxx
30. MORTGAGEE PROTECTION. Tenant agrees to give any mortgagee(s) and/or
trust deed holder(s), by overnight, courier or certified or registered mail,
return receipt requested, a copy of any notice of default served upon Landlord,
provided that prior to such notice Tenant has been notified in writing (by way
of notice of assignment of rents and leases, or otherwise) of the addresses of
such mortgagee(s) and/or trust deed holder(s). Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the mortgagee(s) and/or trust deed holder(s) shall have an
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
if within such thirty (30) days any mortgagee and/or trust deed holder(s) notify
Tenant that it will, and, has commenced and is diligently pursuing the remedies
necessary to cure such default (including but not limited to commencement of
foreclosure proceedings, if necessary to effect such cure), in which event this
Lease shall not be terminated while such remedies are being so diligently
pursued.
31. COSTS AND ATTORNEYS' FEES. If Tenant or Landlord shall employ an
attorney with regard to any act, omission or activity of the other with regard
to this Lease, including any suit by Landlord for the recovery of Rent or other
payments due hereunder or possession of the Premises, the losing party shall pay
the prevailing party a reasonable sum for attorneys' fees and costs, including
without limitation those incurred in connection with any litigation, at trial
and on appeal, and such attorneys' fees and costs shall be deemed to have
accrued on the commencement of such action.
32. BROKERS. Tenant represents and warrants to Landlord that neither it nor
its officers or agents nor anyone acting on its behalf has dealt with any real
estate broker other than Xxxxxxxx Xxxx Real Estate Services, Inc. representing
Landlord and Xxxxxx X. Xxxxxxx, Inc. representing Tenant in the negotiating or
making of this Lease, and each agrees to indemnify and hold the other, its
agents, employees, partners, directors, shareholders and independent contractors
harmless from all liabilities, costs, demands, judgments, settlements, claims,
and losses, including reasonable attorneys fees and costs, incurred by the other
in conjunction with any such claim or claims of any other broker or brokers
claiming to have interested Landlord or Tenant in the Building or Premises or
claiming to have caused Landlord or Tenant to enter into this Lease.
33. LANDLORD'S LIABILITY.
33.1 Anything in this Lease to the contrary notwithstanding,
covenants, undertakings and agreements herein made on the part of Landlord are
made and intended not for the purpose of binding Landlord personally or the
assets of Landlord but are made and intended to bind only Landlord's interest in
the Premises and Building, as the same may, from time to time, be encumbered and
no personal liability shall at any time be asserted or enforceable against
Landlord or its stockholders, officers or partners or their respective heirs,
legal representatives,
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successors and assigns on account of the Lease or on
account of any covenant, undertaking or agreement of Landlord in this Lease.
33.2 Landlord shall not be liable for any damage or injury which may
be sustained by Tenant or any other person from water by reason of the breakage,
leakage or obstruction of the roof, roof drains, sprinkler systems, water or
soil pipes or any other leakage in or about the Premises, or resulting from the
sole negligence or willful misconduct on the part of any of Landlord's other
tenants, their agents or employees. Landlord shall not be liable for any loss of
property from any cause whatsoever, including not by way of limitation, theft,
vandalism or burglary from the Premises, and Tenant covenants and agrees to make
no claim for any such loss at any time.
34. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, within ten (10)
business days of Landlord's written request, execute, acknowledge and deliver to
Landlord or its designee a written statement stating: the date the Lease was
executed and the date it expires; the date Tenant entered occupancy of the
Premises; the amount of Base Rent, Additional Rent and other charges due
hereunder and the date to which such amounts have been paid; that this Lease is
in full force and effect has not been assigned, modified, supplemented or
amended in any way (or specifying the date and terms of any agreement so
affecting this Lease); that this Lease represents the entire agreement between
the parties as to this leasing; that all conditions under this Lease to be
performed by Landlord have been satisfied (or specifying any such conditions
that have not been satisfied); that all required contributions by Landlord to
Tenant on account of Tenant's improvements have been received (or specifying any
such contributions that have not been received); that on the date of such
statement there are no existing defenses or offset which Tenant has against the
enforcement of this Lease by Landlord (or if so, specifying the same); that no
Rent has been paid more than one (1) month in advance; that no security has been
deposited with Landlord (or, if so, the amount thereof); or any other matters
evidencing the status of the Lease, as may be required either by a lender making
a loan to Landlord to be secured by a deed of trust or mortgage against the
Building, or a purchaser of the Building. It is intended that any such statement
delivered pursuant to this Article may be relied upon by a prospective purchaser
of Landlord's interest or a mortgagee of Landlord's interest or assignee of any
mortgage upon Landlord's interest in the Building. If Tenant fails to respond
within ten (10) business days of receipt by Tenant of a written request by
Landlord as herein provided, Tenant shall be deemed to have given such
certificate as above provided without modification and shall be deemed to have
admitted the accuracy of any information supplied by Landlord to a prospective
purchaser or mortgagee.
35. FINANCIAL STATEMENTS. Not more than once each Lease Year, within thirty
(30) days after Landlord's request, Tenant shall deliver to Landlord the current
financial statements of Tenant, and financial statements of each of the two (2)
years prior to the current financial statements year, to the extent existing,
certified by the Tenant, including a balance sheet and profit and loss statement
for the most recent prior year, all prepared in accordance with generally
accepted accounting principles consistently applied. Tenant also agrees, within
thirty (30) days of Landlord's request, to provide such further financial
information (such as quarterly statements) as Landlord may request.
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36. TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer(s) of
Landlord's interest in the Premises or the Building, other than a transfer for
security purposes only, the transferor shall be automatically relieved of any
and all obligations and liabilities on the part of Landlord accruing from and
after the date of such transfer, provided the transferee agrees in writing to
assume the same and Tenant agrees to attorn to the transferee.
37. RIGHT TO PERFORM. If Tenant shall fail to pay any sum of money, other
than Rent, required to be paid by it hereunder, or if Tenant shall fail to
perform any other act on its part to be performed hereunder which such failure
shall continue for thirty (30) days after written notice from Landlord, then, in
addition to a default if provided by Section 23.1, Landlord may, but shall not
be obligated so to do, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment or perform any such other act on
Tenant's part to be made or performed as provided in this Lease. Notwithstanding
the foregoing, in the event of an emergency, if Tenant shall fail to pay any sum
of money, other than Rent, required to be paid by it hereunder or shall fail to
perform any other act on its part to be performed hereunder, Landlord may, but
shall not be obligated so to do, and without waiving or releasing Tenant from
any obligations of Tenant, immediately make any such payment or perform any such
other act on Tenant's part to be made or performed as provided in this Lease.
Landlord shall have (in addition to any other right or remedy of Landlord) the
same rights and remedies in the event of the nonpayment of sums due under this
Article as in the case of default by Tenant in the payment of Rent. All sums
paid by Landlord and all penalties, interest and costs in connection therewith,
shall be due and payable by Tenant as Additional Rent on the next Basic Rent
payment date after such payment by Landlord, together with interest thereon at
the maximum rate of interest permitted by law from such date to the date of
payment.
38. SUBSTITUTED PREMISES. Landlord shall have the right at any time, upon
giving Tenant not less than sixty (60) days' prior notice in writing, to provide
and furnish Tenant with space elsewhere in the Building (the "New Space") of
approximately the same size as the Premises and to place Tenant in such space.
If the total rentable square footage of the New Space should exceed the total of
the original Premises, Tenant's Rent and Tenant's percentage of the Building
share shall not be increased proportionately. If, however, such total rentable
square footage shall be less, Tenant's Rent and Tenant's percentage of the
Building shall be decreased proportionately. In the event of any such relocation
of Tenant, Landlord shall pay for Tenant's reasonable moving costs including
without limitation, new stationery, business cards, printing expenses, moving
expenses, phone and utility transfer charges, computer system relocation,
cabling, mailing announcements and reasonable advertising of the address of the
New Space; provided, however, Tenant shall not be entitled to any compensation
for damages for any interference with or interruption of its business during or
resulting from such relocation. However, Landlord shall make reasonable efforts
to minimize such interference. Landlord shall have the right to reasonably
approve all contractors and vendors associated with Tenant' s relocation. If
Tenant shall notify Landlord within twenty (20) days of receipt of notice from
Landlord required above that Tenant does not want to relocate to the New Space,
Landlord may, at its option, cancel this Lease by sending thirty (30) days
written notice thereof to Tenant, and upon such date specified in Landlord's
notice, the term of this Lease shall expire as fully and completely as if such
date were the date set forth above for the termination of this Lease and there
shall be no liability between the parties except such liability accruing up to
the date of termination of the Lease. If Landlord moves Tenant to such New
Space, this Lease and each and
24
all of its terms, covenants and conditions shall remain in full force and effect
and be deemed applicable to such new space, and such new space shall thereafter
be deemed to be the "Premises". Landlord shall relocate or replace all of
Tenant's leasehold improvements in the Premises with leasehold improvements of
equal or greater quality in the New Space. The layout of the New Space,
including the ratio of windows to office space, shall be substantially similar
to the Premises. All construction and Tenant improvements in the New Space shall
be substantially completed prior to relocation to the New Space. Landlord shall
use commercially reasonable efforts to perform the relocation of the Premises
over a weekend. Rent shall xxxxx for any period of interruption of Tenant's
operations as a result of the relocation.
39. SALES AND AUCTIONS. No retail sales may be conducted at, upon or in the
Premises. Tenant may not use the exterior walls and doorways of the Premises for
storage. Tenant agrees not to install any exterior lighting, amplifiers or
similar devices in or about the Premises. Tenant shall not conduct or permit to
be conducted any sale by auction in, upon or from the Premises whether said
auction be voluntary, involuntary, pursuant to any assignment for the payment of
creditors or pursuant to any bankruptcy or other insolvency proceeding.
40. NO ACCESS TO ROOF. Tenant shall have no right of access to the roof of
the Premises or the Building.
41. SECURITY. Tenant hereby agrees to the exercise by Landlord and its
agents and employees, within their sole discretion, of such security measures as
it deems necessary for the Building.
42. AUTHORITY OF TENANT. Tenant warrants to Landlord that Tenant, if other
than an individual, is a validly existing legal entity under the laws of the
state of its formation, that it is duly qualified to do business in the State in
which the Premises are located, that its entry into and performance of this
Lease has been duly authorized, that, if Tenant is not an individual, the
officer(s), partner(s) or trustee(s), as applicable, executing this Lease on
Tenant's behalf are duly authorized to do so, and that this Lease is binding
upon Tenant.
43. NO ACCORD OR SATISFACTION. No payment by Tenant or receipt by Landlord
of a lesser amount than the Rent and other sums due hereunder shall be deemed to
be other than on account of the earliest Rent or other sums due, nor shall any
endorsement or statement on any check or accompanying any check or payment 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
other sum and to pursue any other remedy provided in this Lease.
44. MODIFICATIONS FOR LENDER. If in connection with obtaining financing for
the Building or any portion thereof, Landlord's lender shall request reasonable
modifications to this Lease as a condition to such financing, Tenant shall not
unreasonably withhold, delay, or defer its consent to such modification provided
such modifications do not materially adversely affect Tenant's rights hereunder
or increase Tenant's obligations.
45. PARKING. Tenant's occupancy of the Premises shall include the use of
thirteen (13) parking spaces, of which two (2) shall be covered spaces and for
which Landlord will
25
provide free of charge to Tenant for the duration of Tenant's occupancy. Tenant
shall have the right to park in the Building parking facilities in common with
other tenants of the Building. Tenant agrees not to overburden the parking
facilities and agrees to cooperate with Landlord and other tenants in use of the
parking facilities. Landlord reserves the right in its absolute discretion to
determine whether the parking facilities are becoming overburdened and to
allocate and assign parking spaces among Tenant and other tenants, and to
reconfigure the parking area and modify the existing ingress to and egress from
the parking area as Landlord shall deem appropriate provided that the number of
covered and uncovered parking spaces provided to Tenant shall not be reduced.
46. GENERAL PROVISIONS.
46.1 ACCEPTANCE. The submission of this Lease by Landlord does not
constitute an offer by Landlord or other option for, or restriction of, the
Premises, and this Lease shall only become effective and binding upon Landlord,
upon full execution hereof by Landlord and delivery of a signed copy to Tenant.
46.2 JOINT OBLIGATION. If there be more than one Tenant, the
obligations hereunder imposed shall be joint and several.
46.3 MARGINAL HEADINGS, ETC. The marginal headings, Table of Contents,
lease summary sheet and titles to the articles and sections of this Lease are
not a part of the Lease and shall have no effect upon the construction or
interpretation of any part hereof.
46.4 CHOICE OF LAW. This Lease shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia.
46.5 SUCCESSORS AND ASSIGNS. The covenants and conditions herein
contained, subject to the provisions as to assignment, inure to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
46.6 RECORDATION. Neither landlord nor Tenant shall record this Lease,
but a short-form memorandum hereof may be recorded at the request of Landlord or
Tenant. The requesting party shall bear all costs associated with the recording
of such short-form memorandum. Tenant shall, promptly upon the expiration or
earlier termination of this Lease, execute all documents necessary to cancel or
terminate of record such short-form memorandum and in the event that Tenant does
not so execute such document(s) within thirty (30) days after written request by
Landlord, Tenant hereby appoints Landlord as its authorized agent and
attorney-in-fact solely for the purpose of execution, on Tenant's behalf, of all
such document(s).
46.7 QUIET POSSESSION. Upon Tenant's paying the Rent and other charges
due hereunder and observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder, Tenant shall
have quiet possession of the Premises for the term hereof, subject to all the
provisions of this Lease.
46.8 PARTIAL INVALIDITY. Any provision of this Lease which shall prove
to be invalid, void, or illegal shall in no way affect, impair or invalidate any
other provision hereof and such other provision(s) shall remain in full force
and affect.
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46.9 CUMULATIVE REMEDIES. No remedy or election hereunder shall be
deemed exclusive but shall, whenever possible, be cumulative with all other
remedies at law or in equity.
46.10 ENTIRE AGREEMENT. This Lease contains the entire agreement of
the parties hereto and no representations, inducements, promises or agreements,
oral or otherwise, between the parties, not embodied herein, shall be of any
force or effect.
46.11 LABOR DISPUTES. Tenant agrees that it will not at any time,
either directly or indirectly, employ or permit the employment of any
contractor, mechanic or laborer, or permit any materials in the Premises, in
connection with any services, provisions, alterations or maintenance, if the use
of such contractor, mechanic or laborer or such materials may create any
difficulty, strike or jurisdictional dispute with other contractors, mechanics
or laborers engaged by Landlord or others, or would disturb the constructing
maintenance, cleaning, janitorial services, repair, management, security or
operation of the Building or any part thereof . In the event of any interference
or conflict, Tenant, upon demand of Landlord, shall cause all contractors,
mechanics or laborers, or all materials causing such interference, difficulty or
conflict, to leave or be removed from the Building immediately.
46.12 WAIVER OF COUNTERCLAIM. Tenant hereby waives the right to
interpose any non-compulsory counterclaim of whatever description in any summary
proceeding.
46.13 TIME IS OF THE ESSENCE. Time is of the essence of this Lease.
Unless specifically provided otherwise, all references to terms of days or
months shall be construed as references to calendar days or calendar months,
respectively.
46.14 EXECUTION. This Lease may be executed in any number of
counterparts , each of which shall be deemed an original and any of which shall
be deemed to be complete in itself and may be introduced into evidence or used
for any purpose without the production of the other counterparts.
46.15 FORCE MAJEURE. A party to this Lease shall be excused from the
performance of its duties and obligations under this Lease, except obligations
for the payment of money such as Base Rent, for the period of delay, but in no
event longer than ninety (90) days, caused by labor disputes, governmental
regulations, riots, war, insurrection, acts of God or other causes beyond the
control of the party whose performance is being excused (but such causes shall
not include insufficiency of funds).
46.16 NO JOINT VENTURE. This Lease does not and shall not be construed
to create a partnership, joint venture or any other relationship other than that
of landlord and tenant.
47. RULES AND REGULATIONS. Tenant agrees to comply with such reasonable
rules and regulations as Landlord may adopt from time to time for the orderly
and proper operation of the Building and parking and other common areas provided
that any future rules and regulations shall not materially increase Tenant's
obligations or decrease Tenant's rights hereunder. Such rules may include but
shall not be limited to the following: (i) restricting of employee parking to a
limited, designated area or areas; and (ii) regulation of the removal, storage
and disposal of Tenant's refuse and other rubbish at the sole cost and expense
of Tenant.
27
The rules and regulations shall be binding upon Tenant upon delivery of a copy
of them to Tenant. Landlord shall not be responsible to Tenant for the
nonperformance of any of said rules and regulations by any other tenants or
occupants of the Building.
48. NO WARRANTIES OR REPRESENTATIONS BY LANDLORD. Tenant acknowledges and
agrees that, except as expressly set forth in this Lease, neither Landlord nor
any agent or representatives of Landlord have made, and Landlord is not liable
or responsible for or bound in any manner by any express or implied
representations, warranties, covenants, agreements, obligations, guarantees,
statements, information or inducements pertaining to the Premises or any part
hereof, the title and physical condition thereof, the quantity, character,
fitness and quality thereof, merchantability, fitness for particular purpose,
the income, expenses or operation thereof, the value and profitability thereof,
the uses which can be made thereof or any other matter or thing whatsoever with
respect thereto. Tenant acknowledges, agrees, represents and warrants that it
has had the opportunity and has in fact inspected the Premises, and that it has
had access to information and data relating to all of same as Tenant has
considered necessary, prudent, appropriate or desirable for the purposes of this
transaction and, without limiting the foregoing, that Tenant and its agents and
representatives have independently inspected, examined, analyzed and appraised
all of same, including the condition, value and profitability thereof. Without
limiting the foregoing, Tenant acknowledges and agrees that, except as expressly
set forth in this Lease, Landlord is not liable or responsible for or bound in
any manner by (and Tenant has no relief upon) any oral or supplied guarantees,
statements, information or inducements pertaining to the Premises or any part
hereof, such condition and such operation and any other information respecting
same furnished by or obtained from Landlord or any agent or representative of
Landlord. Without limiting the foregoing, except as expressly set forth in this
Lease, Tenant acknowledges and agrees that Tenant is leasing the Premises "AS
IS" at the Lease Commencement Date.
49. LANDLORD'S CONSENT OR APPROVAL.
49.1 With respect to any provision of this Lease which provides that
Tenant shall obtain Landlord's prior consent or approval, Landlord may withhold
such consent or approval for any reason at its sole discretion, unless the
provision specifically states that the consent or approval will not be
unreasonably withheld delayed or conditioned.
49.2 With respect to any provision of this Lease which provides that
Landlord shall not unreasonably withhold or unreasonably delay any consent or
any approval, Tenant, in no event, shall be entitled to make, nor shall Tenant
make, any claim for, and Tenant hereby waives any claim for money damages; nor
shall Tenant claim any money damages by way of setoff, counterclaim or defense,
based upon any claim or assertion by Tenant that landlord has unreasonably
withheld or unreasonably delayed any consent or approval; but Tenant's sole
remedy shall be an action or proceeding to enforce any such provision, or for
specific performance, injunction or declaratory judgment.
50. WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT WAIVE THE RIGHT TO A TRIAL
BY JURY IN ANY ACTON OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJCT MATTER
OF THIS LEASE. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY
TENANT AND
28
TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY PERSON ACTING ON BEHALF OF
LANDLORD HAS MADE ANY RPERESENTATIONS OF FACT TO INDUCE THIS WAIVER OR TRIAL BY
JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. TENANT FURTHER ACKNOWLEDGES
THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORUTNITY TO BE REPRESENTED) IN
THE SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO
DISUCSS THIS WAIVER WITH COUNSEL. TENANT FURTHER ACKNOWLEDGES THAT IT HAS READ
AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION AND AS
EVIDENCE OF SAME HAS EXECUTED THIS LEASE.
Initials:
Landlord: _______ Tenant: _______
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, in
triplicate, on the day and year first above written
TENANT: LANDLORD
------- --------
POTOMAC FINANCIAL GROUP, AETNA LIFE INSURANCE COMPANY,
L.L.C., a Virginia limited liability company a Connecticut corporation
By: By:
-------------------------- --------------------------
Printed Name: Printed Name:
---------------- ----------------
Its: Its:
------------------------- ------------------------
29
EXHIBIT A
---------
LOCATION AND DIMENSIONS OF PLANS
--------------------------------
30
Exhibit B
---------
Special Stipulations
--------------------
These Special Stipulations are hereby incorporated into this Lease and in
the event that they conflict with any provision of this Lease, these Special
Stipulations shall control.
1. Base Rent. During the Term of the Lease, Tenant shall pay Base Rent as
follows:
Year of the Base Rent Rate per Rentable Monthly Base
Lease Term Square Foot per Annum Rent Payment
---------- --------------------- ------------
1 $17.75 $5,506.94
2 $18.28 $5,671.37
3 $18.83 $5,842.01
4 $19.40 $6,018.85
5 $19.98 $6,198.80
2. Entry Sign. Landlord shall also provide Tenant with one (1) suite entry
sign at Landlord's sole cost and expense. Landlord hereby acknowledges that
Tenant shall be permitted to install a second suits entry sign on behalf of an
affiliate of Tenant, at Tenant's expense.
3. Security Deposit. Tenant hereby agrees to pay Landlord a security
deposit in the amount of Twenty-Two Thousand and no/100 Dollars ($22,000.00) for
years one (1) through three (3) during the Term of the Lease. The security
deposit for years four (4) through five (5) shall be reduced to Twelve Thousand
Thirty-Seven and 70/100 Dollars ($12,037.70), provided, however, Tenant does not
exercise its option to terminate this Lease. At any time during the term of this
Lease after the first (1st) anniversary of the Lease Commencement Date, Tenant
shall have the right to substitute a letter of credit (the "Letter of Credit")
in lieu of the amount of the security deposit as set forth above. Such Letter of
Credit shall be in the form of an unconditional, irrevocable standby letter of
credit naming Landlord as beneficiary and payable upon presentation of a sight
draft (accompanied by a statement by an authorized officer of Landlord
certifying that an Event of Default has occurred and that Landlord is entitled
to draw on the Security Deposit for such sum as is stated in the sight draft) at
a federally-insured national bank approved by Landlord (the "Issuer") and having
such other form and content as Landlord shall reasonably require. The Letter of
Credit may be replaced by a substitute letter of credit otherwise satisfying the
terms of this paragraph in the reduced amount set forth above or the Letter of
Credit may reduce in amount automatically.
4. Renewal Option. Provided that (i) both at the time of the exercise of
the option hereinafter set forth and at the time of commencement of the Renewal
Term (as hereinafter
31
defined) this Lease is in full force and effect and provided further that Tenant
is not then in monetary default or material non-monetary default hereunder
beyond the expiration of any applicable notice and cure period provided for in
this Lease and (ii) Tenant is in occupancy of at least fifty percent (50%) of
the Premises for the purpose of conducting its own business, Tenant is hereby
granted the option to renew the Lease Term for one (1) additional period of
sixty (60) months (the "Renewal Term"), such Renewal Term to commence at the
expiration of the initial Lease Term. Tenant shall exercise its option to renew
by delivering notice of such election (the "Renewal Notice'") to Landlord not
less than six (6) months prior to the expiration of the initial Lease Term. In
the event that Landlord does not receive the Renewal Notice prior to the
expiration of such time period (time being of the essence with respect thereto),
then such option to renew the Lease Term shall, upon the expiration of such time
period, become null and void and be of no further force or effect and Tenant
shall, at the request of Landlord, execute an instrument in form and substance
acceptable to Landlord confirming such facts. The Renewal Term shall be upon the
same terms and conditions of this Lease except that the Base Rent during the
Renewal Term shall be at an annual rate equal to the then current fair market
rental rate for leases comparable to this Lease for space comparable to the
Premises in the Building taking into account such factors as tenant improvement
allowances, rent concessions, and rental escalations (the "FMR"). The FMR shall
be determined by Landlord and Tenant by mutual agreement; however, if Landlord
and Tenant cannot agree in writing on the FMR within thirty (30) days after
Tenant's notice of its election to renew, the Renewal Notice shall be deemed
null and void, unless Tenant, within ten (10) days after the expiration of said
thirty (30) day period, elects, by notifying Landlord in writing, to have the
FMR determined by the Three Broker Method set forth below. Tenant shall have no
option to renew this Lease beyond the expiration of the Renewal Term, and the
Premises shall be delivered in their existing condition (on an "as is" basis) at
the time the Renewal Term commences.
The "Three Broker Method" shall operate as follows: The FMR shall be based
upon the current fair market rental rate expressed in terms of rent per square
of rentable area of the Premises for comparable space in comparable buildings in
the Reston, Virginia area, (taking into account concessions which are being
offered in the marketplace for renewals) which shall be determined by a board of
three (3) licensed real estate brokers, one of whom shall be named by Landlord,
one by Tenant, and the two so appointed shall select a third broker. Each member
of the board of brokers shall be licensed in Virginia as a real estate broker,
specializing in the field of commercial office leasing in the Reston area of
Virginia, having no less than ten (10) years' experience in such field, and
recognized as ethical and reputable within the field. Landlord and Tenant agree
to make their appointments promptly after Landlord and Tenant are unable to
agree upon the FMR. The two (2) brokers selected by Landlord and Tenant shall
Select the third broker within ten (10) days after they both have been
appointed, and each broker, within fifteen (15) days after the third broker is
elected, shall submit his or her determination of the FMR. The FMR shall be the
determination of the broker that is not the highest or the lowest (or, if two
brokers reach an identical determination, the determination of such two
brokers). Landlord and Tenant shall each pay the fee of the broker selected by
it, and they shall equally share the payment of the fee of the third broker.
The FMR shall be the Base Rent with respect to the Premises during the
first year of the Renewal Term and shall thereafter escalate during the
remainder of the Renewal Term at three percent (3%) per annum over the prior
year's Base Rent.
32
5. Cancellation Option. Notwithstanding anything to the contrary contained
in this Lease, provided Tenant is not in default hereunder beyond any applicable
notice and cure period or in the event that Tenant is in default, if Tenant
shall cure such default, Tenant shall have the one (1) time option to terminate
this Lease, effective upon the completion of the third (3rd) Lease Year (the
"Cancellation Date") by providing Landlord with written notice of such option
election (the "Cancellation Notice"). Such Cancellation Notice shall be
effective only if it is given to Landlord at least six (6) months prior to the
Cancellation Date (the "Cancellation Notice Deadline"); accordingly, if Tenant
has not given its Cancellation Notice to Landlord prior to a Cancellation Notice
Deadline, the respective Cancellation Option shall terminate and be of no
further force or effect. As a condition precedent to any cancellation of this
Lease pursuant to the provisions of this paragraph, Tenant must have delivered
to Landlord, together with its Cancellation Notice, an amount as a cancellation
fee equal to the sum of Thirty-Eight Thousand Three Hundred Fifteen and 98/100
Dollars ($38,315.98), which represents (i) an amount equal to the unamortized
portion of any tenant improvement allowance, leasing commissions and free rent,
if any, plus (ii) an amount equal to three (3) months of the then current rental
rate. It is hereby acknowledged that any such amount required to be paid by
Tenant in connection with such early termination is not a penalty but a
reasonable pre-estimate of the loss incurred by Landlord as a result of such
early termination of this Lease (which loss is impossible to calculate more
precisely) and, in that regard, constitutes liquidated damages with respect to
such loss. Tenant shall continue to be liable for its obligations under this
Lease to and through the Cancellation Date, including, without limitation,
Additional Rent that accrues pursuant to the terms of the Lease, with all of
such pre-Cancellation Date obligations surviving the early termination of the
Term of this Lease to the extent that such obligations remain unfulfilled as of
the Cancellation Date. The rights granted to Tenant under this paragraph are
personal to Tenant, and in the event of any assignment of this Lease or sublease
by Tenant, this Cancellation Option shall thenceforth be void and of no further
force or effect.
33
Exhibit C
---------
Tenant Work Letter
------------------
Landlord agrees that it shall construct the tenant improvements for the
Premises in a good and workmanlike manner substantially in accordance with the
construction drawings and plans prepared by ______________________ dated
September 26, 1995 which Tenant has and does hereby approve (the "Approved
Drawings") and the Buildings standard specifications for the quantity and
quality of materials to be used in the construction of the tenant improvements.
Landlord shall pay for all costs of construction of the tenant improvements as
shown on the Approved Drawings. Landlord shall have the right to approve all
changes, modifications, substitutions or additions to the Approved Drawings.
Landlord shall paint and re-carpet the entire Premises with Building
standard carpet and colors to be selected by Tenant and repair all water damage
in the Premises.
Additionally, Landlord's architect shall provide services for Approved
Drawings at Landlord's sole cost and expense.
34
Exhibit D
---------
Rules and Regulations
---------------------
1. The sidewalks in front of Premises shall not be obstructed by Tenant or
used by Tenant for any purpose other than ingress and egress from and to
Tenant's offices. Tenant shall remove promptly, at its own expense, without
the use of chemical agents, any debris from the sidewalks in front of
Premises. Landlord shall in all cases obtain the right to control or
prevent access thereto by any person whose presence, in Landlord's
judgment, would be prejudicial to the safety, peace, character or
reputation of the Building or of any Tenant of the Property.
2. The toilet rooms, water closets, sinks, faucets, plumbing and other service
apparatus of any kind shall not be used by Tenant for any purpose other
than those for which they were installed, and no sweepings, rubbish, rags,
ashes, chemicals or other refuse or injurious substances shall be placed
therein or used in connection therewith by Tenant.
3. No skylight, window, door or transom of the Building shall be covered or
obstructed by Tenant, and no storm window, awning or other similar material
shall be installed or placed on any window or in any window space, except
as approved in writing by Landlord, which approval shall not be
unreasonably withheld, delayed or conditioned. If Landlord has installed or
hereafter installs any shade, blind or curtain in the Premises, Tenant
shall not remove it without first obtaining Landlord's written consent
thereto, which approval shall not be unreasonably withheld, delayed or
conditioned.
4. No sign, lettering, insignia, advertisement, notice or other thing shall be
inscribed, painted, installed, erected or placed in any portion of the
Premises which may be seen from outside the Building, or on any window,
space or other part of the exterior or interior of the Building, unless
first approved in writing by Landlord, which approval shall not be
unreasonab1y withheld, delayed or conditioned. Names on suite entrances
shall be provided by and only Landlord and at Tenant's expense, using in
each instance lettering of a design and in a form consistent with the other
lettering in the Building, and first approved in writing by Landlord, which
approval shall not be unreasonably withheld, delayed or conditioned. Tenant
shall not erect any stand, booth or showcase or other article or matter in
or upon the Premises and/or the Building without first obtaining Landlord's
written consent thereto, which approval shall not be unreasonably withheld,
delayed or conditioned.
5. Tenant shall not place any additional lock upon any door within the
Premises or elsewhere upon the Property, without Landlord's prior written
approval, such approval not to be unreasonably withheld, and shall
surrender all keys for all such locks, at the end of the Term. Landlord
shall provide Tenant with one set of keys to the Premises when Tenant
assumes possession thereof.
6. Tenant shall not do or permit to be done anything which materially
obstructs or interferes with the rights of any other tenant or the
Property. Tenant shall not keep anywhere
35
within the Property any matter having an offensive odor, or any kerosene,
gasoline, benzine, camphene, fuel or other explosive or highly flammable
material except for small amounts of chemicals used in Tenant's ordinary
course of business, stored in a safe manner meeting all regulations and
standards including, but not limited to, fire xxxxxxxx codes/environmental
protection agency rules, regulations and standards and OSHA requirements
and for which Tenant is reasonably insured. No bird, fish or other animal
shall be brought into or kept in or about the Premises.
7. If Tenant desires to install signalling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices within the Premises,
Tenant shall need Landlord's prior written approval, such approval shall
not be unreasonably withheld. After thirty (30) days prior written notice
to Tenant, Landlord shall have the right (a) to prevent or interrupt the
transmission of excessive, dangerous or annoying current of electricity or
otherwise into or through the Building or the Premises, (b) to require the
changing or wiring connections or layout at Tenant's expense, to the extent
that Landlord may reasonably deem necessary, (c) to require compliance with
such reasonable rules as Landlord may establish relating thereto, and (d)
in the event of noncompliance with such requirements or rules, immediately
to do whatever else it considers reasonably necessary to remove the danger,
annoyance or electrical interference with apparatus in any part of the
Building. Each wire installed by Tenant must be clearly tagged at each
distributing board and junction box and elsewhere where required by
Landlord with the number of the office to which such wire leads and the
purpose for which it is used, together with the name of Tenant or other
concern, if any, operating or using it.
8. Without Landlord's prior written consent, which shall not be unreasonably
withheld, delayed or conditioned (a) no connection shall be made to any
electrical wire for running any fan, motor or other apparatus, device or
equipment, (b) no machinery of any kind other than customary small business
machinery shall be allowed in the Premises, and (c) no switchboard or
telephone wiring or equipment shall be placed anywhere other than where
reasonably designated by Landlord.
9. Tenant shall have access to the Premises at all times. Landlord shall in no
event be responsible for admitting or excluding any person from the
Premises. In case of invasion, hostile attack, insurrection, mob violence,
riot, public excitement or other commotion, explosion, fire or any
casualty, landlord shall have the right to bar or limit access to the
Building to protect the safety of occupants or the Property, or any
property within the Property.
10. Tenant and its employees, agents and invitees shall observe and comply with
the driving and parking signs and markers on the Premises surrounding the
Building.
11. Landlord shall have the right to rescind, suspend or modify the Rules and
Regulations and to promulgate such other Rules or Regulations as, in
Landlord's reasonable judgment, are from time to time needed for the
safety, care, maintenance, operation or cleanliness of the Building, or for
the preservation of good order therein provided such other Rules and
Regulations do not interfere with Tenant's use and occupancy of the
Premises or materially increase Tenant's obligations or materially diminish
Tenant's
36
rights hereunder. Upon Tenant's having been given notice to the taking of
any such action, the Rules and Regulations as so rescinded, suspended,
modified or promulgated shall have the same force and effect as if in
effect at the time at which Tenant's Lease was entered into (except that
nothing in the Rules and Regulations shall be deemed in any way to alter or
impair any provision of such Lease).
12. The use of any room within the Building as sleeping quarters is strictly
prohibited at all times.
13. Nothing in these Rules and Regulations shall give any Tenant any right or
claim against Landlord or any other person if Landlord does not enforce any
of them against any other Tenant or person (whether or not Landlord has the
right to enforce them against such Tenant or person), and no such
nonenforcement with respect to any tenant shall constitute a waiver of the
right to enforce them as to Tenant or any other Tenant person.
Notwithstanding anything above to the contrary, Landlord will enforce the
Rules and Regulations uniformly with all tenants.
37
Exhibit E
---------
CLEANING SPECIFICATIONS
-----------------------
Cleaning services provided five (5) days per week unless otherwise specified.
Cleaning hours Monday through Friday between 6:00 p.m. and before 8:00 a.m. of
the following day.
On the last day of the week the work will be done after 6:00 p.m., Friday, but
before 8:00 a.m., Monday.
No cleaning on holidays.
Lavatories
----------
All lavatory floors to be swept and washed with disinfectant nightly.
Tile walls and dividing partitions to be washed and disinfected weekly.
Basins, bowls, urinals to be washed and disinfected daily.
Mirrors, shelves, plumbing work, bright work, and enamel surfaces cleaned
nightly.
Waste receptacles will be emptied and cleaned and wash dispensaries to be filled
with appropriate tissues, towels, soap nightly.
Main Lobby, Elevators, Building Exterior and Corridors
------------------------------------------------------
Wipe and wash all floors in Main Lobby nightly.
Wipe and/or vacuum elevator floors nightly.
Office Area
-----------
Furniture and fixtures within reach will be dusted and desk tops will be wiped
clean. However, desks with loose papers on the top will not be cleaned.
Ash trays to be emptied and cleaned.
Window xxxxx and baseboards to be dusted and washed when necessary.
Office wastepaper baskets will be emptied nightly.
38
Cartons or refuse in excess of that which can be placed in wastebaskets will not
be removed. Tenants are required to place such unusual refuse in trash area.
Cleaner will not remove or clean tea or coffee cups or similar containers; also;
if such liquids are spilled in wastebaskets, the wastebaskets will be emptied
but not otherwise cleaned.
Hard floors will be swept daily and washed and waxed monthly.
Carpet will be vacuumed nightly.
Wipe clean all glass, brass and other bright work weekly.
Dust all pictures, charts, wall hangings monthly that are not reached in nightly
cleaning.
