1
EXHIBIT 10.23
WESTWOOD II AND III
2
TABLE OF CONTENTS
ARTICLE PAGE
------- ----
1. LEASE OF PREMISES ........................................ 1
2. DEFINITIONS .............................................. 1
3. EXHIBITS AND ADDENDA ..................................... 2
4. DELIVERY OF POSSESSION ................................... 3
5. RENT ..................................................... 3
6. INTEREST AND LATE CHARGES ................................ 4
7. SECURITY DEPOSIT ......................................... 4
8. TENANTS USE OF THE PREMISES .............................. 4
9. SERVICES AND UTILITIES ................................... 5
10. CONDITION OF THE PREMISES ................................ 5
11. CONSTRUCTION, REPAIRS AND MAINTENANCE .................... 5
12. ALTERATIONS AND ADDITIONS ................................ 6
13. LEASEHOLD IMPROVEMENTS; TENANTS PROPERTY ................. 6
14. RULES AND REGULATIONS .................................... 6
15. CERTAIN RIGHTS RESERVED BY LANDLORD ...................... 7
16. ASSIGNMENT AND SUBLETTING ................................ 7
17. HOLDING OVER ............................................. 8
18. SURRENDER OF PREMISES .................................... 8
19. DESTRUCTION OR DAMAGE .................................... 8
20. EMINENT DOMAIN ........................................... 8
21. INDEMNIFICATION .......................................... 9
22. TENANT'S INSURANCE ....................................... 9
23. WAIVER OF SUBROGATION .................................... 9
24. SUBORDINATION AND ATTORNMENT ............................. 9
25. TENANT ESTOPPEL CERTIFICATES ............................. 10
26. TRANSFER OF LANDLORD'S INTEREST .......................... 10
27. DEFAULT .................................................. 10
28. BROKERAGE FEES ........................................... 12
29. NOTICES .................................................. 12
30. GOVERNMENT ENERGY OR UTILITY CONTROLS .................... 12
31. ...................................... 12
32. QUIET ENJOYMENT .......................................... 12
33. OBSERVANCE OF LAW ........................................ 12
34. FORCE MAJEURE ............................................ 12
35. CURING TENANT'S DEFAULTS ................................. 12
36. SIGN CONTROL ............................................. 12
37. HAZARDOUS SUBSTANCES ..................................... 13
38. PARKING .................................................. 13
39. MISCELLANEOUS ............................................ 14
40. TRAFFIC CONTROL .......................................... 15
41. WAIVER OF JURY TRIAL; WAIVER OF COUNTERCLAIMS ............ 15
42. FIRST OPPORTUNITY TO LEASE ADDITIONAL SPACE .............. 15
EXHIBIT "A" ....................................................... 17
EXHIBIT "B" ....................................................... 18
EXHIBIT "C" ....................................................... 19
Page i
3
TABLE OF CONTENTS
ARTICLE PAGE
------- ----
EXHIBIT "D" ..................................................... 22
EXHIBIT "E" ..................................................... 24
Rider to Lease .................................................. 25
Page ii
4
WESTWOOD II & III
This Deed of Lease ("Lease") between COW HOLDINGS LIMITED, a Delaware
corporation ("Landlord"), and TSCI Corporation, a Nevada corporation ("Tenant"),
is dated, for reference purposes only, July 25, 1996.
1. LEASE OF PREMISES
In consideration of the Rent (as defined at Article 5) and the provisions of
this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown on the floor plan attached hereto as Exhibit "A", and further
described at Section 2h. The Premises are located within the Building and
Project described in Section 2i. Tenant shall have the non-exclusive right
(unless otherwise provided herein) in common with Landlord, other tenants,
subtenants and invitees, to use of the Common Areas (as defined at Section 2f).
2. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
a. Commencement Date: October 1, 1996.
b. Expiration Date: September 30, 2001, unless otherwise sooner
terminated in accordance with the provisions of this Lease.
c. Term: The period commencing on the Commencement Date and
expiring at midnight on the Expiration Date.
d. Total Base Rent: $1,068,949.20.
e. Monthly Installments of Base Rent:
Period Monthly Base Rent
------ -----------------
October 1, 1996 through and Including September 30, 1997 $16,777.58
October 1, 1997 through and including September 30, 1998 $17,280.91
October 1, 1998 through and including September 30, 1999 $17,803.98
October 1, 1999 through and including September 30, 2000 $18,336.91
October 1, 2000 through and including September 30, 2001 $18,879.72
f. Common Areas: The Building lobbies, common corridors and hallways, restrooms,
parking areas, stairways, and other generally understood public or common
areas. Landlord shall have the right to regulate or restrict the use of the
Common Areas.
g. Parking: Tenant shall be permitted to park 41 cars on a non-exclusive basis
in the area(s) designated by Landlord from time to time for parking. Parking
space shall be designated by Landlord and shall be free of charge until
September 30, 2001. Thereafter, parking spaces shall be rented on a monthly
basis at the prevailing fee for parking charged in the marketplace, per space
per month, and any parking tax charged in connection therewith, payable as
Rent, in advance, on or before the first day of each calendar month of the
Term.
h. Premises: That portion of the Building containing approximately 11,843 square
feet of Rentable Area, shown on Exhibit "A", located in, and known as
Westwood III, Suite 500.
i. Project: The building of which the Premises are a part (the "Building")
located at 0000-0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, and any
other buildings or improvements on the real property (the "Property"),
further depicted on Exhibit "B", and known as Westwood II & III.
j. Rentable Area: As to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to lease by
Tenant and all tenants of the
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 1
5
Project, respectively, as determined by Landlord and applied on a consistent
basis throughout the Project.
k. Security Deposit: $0.00.
l. Landlord's Mailing Address: Xxxxxxxx Property Services, 00000 Xx Xxx Xxxx,
X.X. Box 30009, Laguna Niguel, California 92677, Attn: Asset Manager,
Westwood II & III.
With a copy to the Building Manager:
Xxxxxxxx Property Services, 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000.
Tenant's Mailing Address: 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000.
m. State: The Commonwealth of Virginia.
n. Tenant's Proportionate Share: The parties agree that Xxxxxx's initial pro
rata share is 11.30%. Such share is a fraction, the numerator of which is the
Rentable Area of the Premises, and the denominator of which is the Rentable
Area of the Project, as determined by Landlord from time to time. If the area
of the Premises, of the Building or of the Project change, Xxxxxx's
appropriate pro rata share shall be adjusted accordingly.
o. Base Year: The calendar year of 1996.
p. Tenant's Use Clause: Offices for object-oriented software products developer
and provider.
q. Broker(s):
Landlord's: Xxxxx Xxxxxxx Company
Tenant's: Commercial Group Realty, Inc.
In the event that Xxxxx Xxxxxxx Company represents both Landlord and Tenant,
Landlord and Xxxxxx hereby confirm that they were timely advised of the dual
representation and that they consent to the same, and that they do not expect
said broker to disclose to either of them the confidential information of the
other party.
3. EXHIBITS AND ADDENDA
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
a. Exhibit "A" - Floor Plan showing the Premises.
b. Exhibit "B" - Site Plan of the Project.
c. Exhibit "C" - Landlord's Work.
d. Exhibit "D" - Rules and Regulations.
e. Exhibit "E" - Base Operating Costs
Landlord /s/ JF Tenant /s/ PF
------ ------
Page 2
6
4. DELIVERY OF POSSESSION
"Delivery of Possession" shall be deemed to occur on the date Landlord
substantially completes Landlord's Work as defined in Exhibit "C". If for any
reason Landlord does not deliver possession of the Premises to Tenant on the
Commencement Date, Landlord shall not be subject to any liability for such
failure, the Expiration Date shall not change and the validity of this Lease
shall not be impaired. Rent shall be abated until delivery of possession, or
until such time that possession would have been delivered were it not for
Tenant's acts or omissions. If Xxxxxxxx's failure to deliver possession of the
Premises for reasons other than Xxxxxx's acts or omissions continues more than
one hundred twenty (120) days after the Commencement Date, Tenant shall have the
right, upon written notice to Landlord, to terminate this Lease. If Landlord
permits Tenant to enter into possession of the Premises before the Commencement
Date, such possession shall be subject to the provisions of this Lease,
including, without limitation, the payment of Rent.
5. RENT
5.1 Payment of Base Rent. Xxxxxx agrees to pay the Base Rent for the
Premises. The monthly installments of Base Rent set forth at Section 2e
shall be payable in advance on or before the first day of each calendar
month of the Term. If the Term begins (or ends) on other than the first
(or last) day of a calendar month, the Base Rent for the partial month
shall be prorated on a per diem basis. Tenant shall pay Landlord the
first Monthly Installment of Base Rent when Tenant executes the Lease.
5.2 Project Operating Costs.
a. Xxxxxx agrees to pay Landlord as Rent, Xxxxxx's Proportionate
Share of all costs, expenses and obligations attributable to
the Project and its operating, all as provided below.
b. If, during any calendar year during the Term, Project
Operating Costs, as estimated by Landlord, exceed the Project
Operating Costs for the Base Year, Tenant shall pay to
Landlord, in addition to the Base Rent and all other payments
due under this Lease, an amount equal to Tenant's
Proportionate Share of such excess Project Operating Costs in
accordance with the provisions of this Section 5.2b.
(1) The term "Project Operating Costs" shall include all those
items described in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and other
similar governmental charges levied on or attributable to the
Building or Project or their operation, including without
limitation, (i) real property taxes or assessments due and
payable against the Building or Project, (ii) assessments or
charges due and payable against the Building or Project by any
redevelopment agency or any front foot benefit charges, (iii)
any tax measured by gross rentals received from the leasing of
the Premises, Building or Project, excluding any net income,
franchise, capital stock, estate or inheritance taxes imposed
by the State or federal government or their agencies, branches
or departments; provided that if at any time during the Term
any governmental entity levies, assesses or imposes on
Landlord any (1) general or special, ad valorem or specific,
excise, capital levy or other tax, assessment, levy or charge
directly on the Rent received under this Lease or on the rent
received under any other leases of space in the Building or
Project, or (2) any license fee, excise or franchise tax,
assessment, levy or charge measured by or based, in whole or
in part, upon such rent, or (3) any transfer, transaction, or
similar tax, assessment, levy or charge based directly or
indirectly upon the transaction represented by this Lease or
such other lease, or (4) any occupancy, use, per capita or
other tax, assessment, levy or charge based directly or
indirectly upon the use or occupancy of the Premises or other
premises within the Building or Project, then any such taxes,
assessments, levies and charges shall be deemed to be included
in the term Project Operating Costs. Project Operating Costs
shall also include all costs incurred by Landlord in
protesting the amount of real property taxes or assessments
levied against the Building or Project, including without
limitation, reasonable attorney's fees, so long as there is a
reasonable expectation that the protesting of real property
taxes or assessments will result in a reduction of amount of
the real property taxes or assessments.
(b) Operating costs incurred by Landlord in maintaining and
operating the Building and Project, including without
limitation the following: costs of (1) utilities; (2)
supplies; (3) insurance (including public liability, property
damage, earthquake, and fire and extended coverage insurance)
for the full replacement cost of the Building and Project as
required by Landlord or its lenders for the Project; (4)
services of independent contractors; (5) compensation
(including employment taxes and fringe benefits) of all
persons who perform duties connected with the operation,
maintenance, repair of overhaul of the Building or Project,
and equipment, improvements and facilities located
within the Project, including without limitation engineers,
janitors, painters, floor waxers, window washers, security and
parking personnel and gardeners (but excluding persons
performing services not uniformly available to or performed
for substantially all Building or Project tenants); (6)
operation and maintenance of a room for delivery and
distribution of mail to tenants of the Building or Project as
required by the U.S. Postal Service (including, without
limitation, an amount equal to the fair market rental value of
the mail room premises); (7) management of the Building or
Project, whether managed by Landlord or an independent
contractor (including, without limitation, an amount equal to
the fair market rental value of any on-site manager's office);
(8) rental expenses for (or a reasonable depreciation
allowance on) personal property used in the maintenance,
operation or repair of the Building or Project; (9) costs,
expenditures or charges (whether capitalized or not) required
by any governmental or quasi-governmental authority; (10)
amortization of capital expenses (including financing costs)
(i) required by a governmental entity for energy conservation
or life safety purposes, or (ii) made by Landlord which can be
shown to reasonably reduce Project Operating Costs; and (11)
any other costs or expenses incurred by Landlord under this
Lease in maintaining and operating the Building and Project in
a prudent Xxxxxx and not otherwise reimbursed by tenants of
the Project.
(2) Tenant's Proportionate Share of Project Operating Costs shall
be payable by Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base Year
and for each calendar year thereafter ("Comparison Year"),
Tenant shall pay Landlord an amount equal to Tenant's
Proportionate Share of the Project Operating Costs incurred by
Landlord in the Comparison Year which exceeds the total amount
of Project Operating Costs payable by Landlord for the Base
Year. This excess is referred to as the "Excess Expenses".
(b) To provide for current payments of Excess Expenses, Tenant
shall pay as additional rent during each Comparison Year an
amount equal to Tenant's Proportionate Share of the Excess
Expenses payable during such Comparison Year, as estimated by
Landlord from time to time. Such payments shall be made in
monthly installments, commencing on the first day of the month
following the month in which Landlord notifies Tenant of the
amount it is to pay hereunder and continuing until the first
day of the month following the month in which Landlord gives
Tenant a new notice of Estimated Expenses. It is the intention
hereunder to estimate from time to time the amount of the
Excess Expenses for each Comparison Year and Xxxxxx's
Proportionate Share thereof, and then to make an adjustment in
the following year based on the actual Excess Expenses
incurred for that Calendar Year.
(c) On or before April 1 of each Comparison Year after the
first Comparison Year (or as soon thereafter as is practical),
Landlord shall deliver to Tenant a statement setting forth
Tenant's Proportionate Share of the Excess Expense for the
preceding Comparison Year. If Xxxxxx's Proportionate Share of
the actual Excess Expenses for the previous Comparison Year
exceeds the total of the estimated monthly payments made by
Tenant for such year, Tenant shall pay Landlord the amount
of the deficiency within thirty (30) days of the receipt of
the statement. If such total exceeds Tenant's Proportionate
Share of the actual Excess Expense for such Comparison Year,
then Landlord shall credit against Xxxxxx's next ensuing
monthly installment(s) of additional rent an amount equal to
the difference until the credit is exhausted. If a credit is
due from Landlord on the Expiration Date, Landlord shall pay
Tenant the amount of the credit. The obligations of Tenant and
Landlord to make payments required under this Section 5.2
shall survive the Expiration Date.
(d) Tenant's Proportionate Share of Excess Expenses in any
Comparison Year having less than 365 days shall be prorated on
a per diem basis.
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 3
7
(e) If any dispute arises as to the amount of any
additional rent due hereunder, Tenant shall have the right
after reasonable notice and at reasonable time to inspect
Landlord's accounting records at Landlord's accounting
office and, if after such inspection Tenant still disputes
the amount of additional rent owed, a certification as to
the proper amount shall be made by Landlord's certified
public accountant, which certification shall be final and
conclusive. Xxxxxx agrees to pay the cost of such
certification unless it is determined that Xxxxxxxx's
original statement overstated Project Operating Costs by
more than five percent (5%).
5.3 Definition of Rent. All costs and expenses which Xxxxxx
assumes or agrees to pay to Landlord under this Lease shall be
deemed additional rent (which, together with the Base Rent is
sometimes referred to as the "Rent"). The Rent shall be paid
to the Building manager (or other person) as set forth in
Section 21, or at such place, as Landlord may from time to
time designate in writing, without any prior demand therefor
and without deduction or offset, in lawful money of the United
States of America.
5.4 Rent Control. If the amount of Rent or any other payment due
under this Lease violates the terms of any governmental
restrictions on such Rent or payment, then the Rent or payment
due during the period of such restrictions shall be the
maximum amount allowable under those restrictions. Upon
termination of the restrictions, Landlord shall, to the extent
it is legally permitted, recover from Tenant the difference
between the amounts received during the period of the
restrictions and the amounts Landlord would have received had
there been no restrictions, to the extent legally permitted.
5.5 Taxes Payable by Xxxxxx. In addition to the Rent and any other
charges to be paid by Tenant hereunder, Tenant shall reimburse
Landlord upon demand for any and all taxes payable by Landlord
(other than net income taxes) which are not otherwise
reimbursable under this Lease, whether or not now customary or
within the contemplation of the parties, where such taxes are
upon, measured by or reasonably attributable to (a) the cost
or value of Tenant's equipment, furniture, fixtures and other
personal property located in the Premises, or the cost or
value of any leasehold improvements made in or to the Premises
by or for Tenant, regardless of whether title to such
improvements is held by Tenant or Landlord; (b) the gross or
net Rent payable under this Lease, including, without
limitation, any rental or gross receipts tax levied by any
taxing authority with respect to the receipt of the Rent
hereunder; (c) the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of
the Premises or any portion thereof; or (d) this transaction
or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises. If it
becomes unlawful for Tenant to reimburse Landlord for any
costs as required under this Lease, the Base Rent shall be
revised to net Landlord the same net Rent after imposition of
any tax or other charge upon Landlord as would have been
payable to Landlord but for the reimbursement being unlawful,
to the extent legally permitted.
6. INTEREST AND LATE CHARGES
If Tenant fails to pay when due any Rent or other amounts or charges
which Tenant is obligated to pay under the terms of this Lease, the
unpaid amounts shall bear interest at the lesser of fifteen percent
(15%) per annum or the maximum rate then allowed by law. Tenant
acknowledges that the late payment of Rent will cause Landlord to lose
the use of that money and incur costs and expenses not contemplated
under this Lease, including without limitation, administrative and
collection costs and processing and accounting expenses, the exact
amount of which is extremely difficult to ascertain. Therefore, in
addition to interest, the second time and each time thereafter during
the term of this Lease, and any extension(s) thereof, that any Rent is
not received by Landlord within ten (10) days from the date it is due,
Tenant shall pay Landlord a late charge equal to ten percent (10%) of
such amount. Landlord and Xxxxxx agree that this late charge represents
a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such non-payment by
Xxxxxx. Acceptance of any interest or late charge shall not constitute
a waiver of Tenant's default with respect to such nonpayment by Tenant
nor prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease.
7. SECURITY DEPOSIT
Xxxxxx agrees to deposit with Landlord the Security Deposit set forth
at Section 2k upon execution of this Lease, as security for Xxxxxx's
faithful performance of its obligations under this Lease. Landlord and
Tenant agree that the Security Deposit may be commingled with funds of
Landlord and Landlord shall have no obligation or liability for payment
of interest on such deposit. Tenant shall not mortgage, assign,
transfer or encumber the Security Deposit without the prior written
consent of Landlord and any attempt by Tenant to do so shall be void,
without force or effect and shall not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable
under this Lease, or fails to perform any of the terms hereof, Landlord
may appropriate and apply or use all or any portion of the Security
Deposit for Rent payments or any other amount then due and unpaid, for
payment of any amount for which Landlord has become obligated as a
result of Tenant's default or breach, and for any loss or damage
sustained by Landlord as a result of Tenant's default or breach, and
Landlord may so apply or use this deposit without prejudice to any
other remedy Landlord may have by reason of Tenant's default or breach.
If Landlord so uses any of the Security Deposit, Tenant shall, within
ten (10) days after written demand therefor, restore the Security
Deposit to the full amount originally deposited; Tenant's failure to do
so shall constitute an act of default hereunder and Landlord shall have
the right to exercise any remedy provided for at Article 27 hereof.
Within fifteen (15) days after the Term (or any extension thereof) has
expired or Tenant has vacated the Premises, whichever shall last occur,
and provided Tenant is not then in default on any of its obligations
hereunder, Landlord shall return the Security Deposit to Tenant, or if
Tenant has assigned its interest under this Lease, to the last assignee
of Tenant. If Landlord sells its interest in the Premises, Landlord may
deliver this deposit to the purchaser of Landlord's interest and
thereupon be relieved of any further liability or obligation with
respect to the Security Deposit.
8. TENANT'S USE OF THE PREMISES
Tenant shall use the Premises solely for the purposes set forth in
Tenant's Use Clause. Tenant shall not use or occupy the Premises in
violation of law or any covenant, condition or restriction affecting
the Building or Project or the certificate of occupancy issued for the
Building or Project, and shall, upon notice from Landlord, immediately
discontinue any use of the Premises which is declared by an
governmental authority having jurisdiction to be a violation of law or
the certificate of occupancy. Tenant, at Tenant's own cost and expense,
shall comply with all laws, ordinances, regulations, rules and/or any
directions of any governmental agencies or authorities having
jurisdiction which shall, by reason of the nature of Tenant's use or
occupancy of the Premises, impose any duty upon Tenant or Landlord with
respect to the Premises or its use or occupation. A judgment of any
court of competent jurisdiction or the admission by Tenant in any
action or proceeding against Tenant that Tenant has violated any such
laws, ordinances, regulations, rules and/or directions in the use of
the Premises shall be deemed to be a conclusive determination of that
fact as between Landlord and Tenant. Tenant shall not do or permit to
be done anything which will invalidate or increase the cost of any
fire, extended coverage or other insurance policy covering the Building
or Project and/or property located therein, and shall comply with all
rules, orders, regulations, requirements and recommendations of the
Insurance Services Office or any other organization performing a
similar function. Tenant shall promptly upon demand reimburse Landlord
for any additional premium charged for such policy by reason of
Xxxxxx's failure to comply with the provisions of this Article. Tenant
shall not do or permit anything to be done in or about the Premises
which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building or Project, or injure or annoy
them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises. Tenant
shall not commit or suffer to be committed any waste in or upon the
Premises.
Page 4
Landlord /s/ JF Tenant /s/ PF
------ ------
8
9. SERVICES AND UTILITIES
Provided that Tenant is not in default hereunder, Landlord agrees to
furnish to the Premises during generally recognized business days, and
during hours determined by Landlord in its sole discretion, and subject
to the Rules and Regulations of the Building or Project, electricity
for normal desktop office equipment and normal copying equipment, and
heating, ventilation and air conditioning ("HVAC") as required in
Landlord's judgment for the comfortable use and occupancy of the
Premises. If Tenant desires HVAC at any other time, Landlord shall use
reasonable efforts to furnish such service upon reasonable notice from
Tenant and Tenant shall pay Landlord's charges therefor on demand.
Landlord shall also maintain and keep lighted the common stairs, common
entries and restrooms in the Building. Landlord shall not be in default
hereunder or be liable for any damages directly or indirectly resulting
from, nor shall the Rent be abated by reason of (i) the installation,
use or interruption of use of any equipment in connection with the
furnishing of any of the foregoing services, (ii) failure to furnish or
delay in furnishing any such services where such failure or delay is
caused by accident or any condition or event beyond the reasonable
control of Landlord, or by the making of necessary repairs or
improvements to the Premises, Building or Project, or (iii) the
limitation, curtailment or rationing of, or restrictions on, use of
water, electricity, gas or any other form of energy serving the
Premises, Building or Project. Except for Landlord's gross negligence,
Landlord shall not be liable under any circumstances for a loss of or
injury to property or business, however occurring, through or in
connection with or incidental to failure to furnish any such services.
If Tenant uses heat generating machines or equipment in quantities that
cause, produce or which individually produce more heat than customary
for an office use in the Premises and the use of such equipment or
machines affect the temperature otherwise maintained by the HVAC
system, Landlord reserves the right to install supplementary air
conditioning units in the Premises and the cost thereof, including the
cost of installation, operation and maintenance thereof, shall be paid
by Tenant to Landlord upon demand by Landlord.
Tenant shall not, without the written consent of Landlord, use any
apparatus or device in the Premises, which consumes more electricity
than is usually furnished or supplied for the use of premises as
general office space, as determined by Landlord. Tenant shall not
connect any apparatus with electric current, except through existing
electrical outlets in the Premises. Tenant shall not consume water or
electric current in excess of that usually furnished or supplied for
the use of premises as general office space (as determined by
Landlord), without first procuring the written consent of Landlord,
which Landlord may refuse, and in the event of consent, Landlord may
have installed a water meter or electric current meter in the Premises
to measure the amount of water or electric current consumed. The cost
of any such meter and of its installation, maintenance and repair shall
be paid for by the Tenant and Xxxxxx agrees to pay Landlord promptly
upon demand for all such water and electric current consumed as shown
by said meters, at the rates charged for such services by the local
public utility plus any additional expense incurred in keeping account
of the water and electric current so consumed. If a separate meter is
not installed, the excess cost for such water and electric current
shall be established by an estimate made by a utility company or
electrical engineer hired by Landlord at Tenant's expense.
Tenant shall make arrangements with the telephone company and other
public utilities for those other services desired by Tenant.
Nothing contained in this Article shall restrict Landlord's right to
require at any time separate metering of utilities furnished to the
Premises. In the event utilities are separately metered, Tenant shall
pay promptly upon demand for all utilities consumed at utility rates
charged by the local public utility plus any additional expense
incurred by Landlord in keeping account of the utilities so consumed.
Tenant shall be responsible for the maintenance and repair of any such
meters at its sole cost.
Landlord shall furnish elevator service, lighting replacement for
building standard lights, restroom supplies, window washing, and
janitor services in a manner that such services are customarily
furnished to comparable office buildings in the area.
10. CONDITION OF THE PREMISES
Xxxxxx's taking possession of the Premises shall be deemed conclusive
evidence that as of the date of taking possession of the Premises are
in good order and satisfactory condition, except for such matters as to
which Tenant gave Landlord notice on or before the Commencement Date
and minor punchlist items of which Xxxxxx gives Landlord notice within
ten (10) days following the Commencement Date. No promise of Landlord
to alter, remodel, repair or improve the Premises, the Building or the
Project and no representation, express or implied, respecting any
matter or thing relating to the Premises, Building, Project or this
Lease (including, without limitation, the condition of the Premises,
the Building or the Project) have been made to Tenant by Landlord or
its Broker or Sales Agent, other than as may be contained herein or as
described in Exhibit "C".
11. CONSTRUCTION, REPAIRS AND MAINTENANCE
a. Landlord's Obligations. Landlord shall maintain in good order,
condition and repair the Building, Common Areas and all other portions
of the Premises not the obligation of Tenant or of any other tenant in
the Project. Landlord shall furnish solely the following, the cost and
expense of all which shall be included within the term Project
Operating Costs as defined in Section 5.2:
(1) Landlord shall cause cold water to be piped to the Project and
to the Premises (if applicable);
(2) Landlord shall provide for trash removal from the Project;
(3) Landlord shall cause removal of snow accumulations from the
parking lot and sidewalks and cutting of the grass in the
Common Areas designated pursuant to Section 11b hereof;
(4) Landlord shall cause to be provided lighting for the exterior
of the Project and of the Common Areas in the Project; and;
(5) Landlord shall cause to be maintained, repaired and replaced,
when necessary, the heating and air conditioning, water and
all other mechanical equipment, systems and fixtures
applicable to the Premises and the Common Areas whether
located on the roof of the Premises or in the Premises.
Landlord shall not be liable for damages, by abatement of rent
or otherwise, for failure to furnish, or delay in furnishing,
any one or more of the above, which failure or delay is
caused, in whole or in part, by war, insurrection, civil
disturbance, riots, acts of God, governmental action, repairs,
improvements, alterations, strikes, lockouts or picketing
(whether legal or illegal), inability to obtain electricity,
fuel or supplies, accidents, casualties, acts caused directly
or indirectly by Xxxxxx (or Tenant's agents, representatives,
employees, licensees or invitees) any other act or cause
beyond the reasonable control of Landlord. Any such failure or
delay in furnishing the above shall be without any liability
of Landlord to Tenant and shall not be deemed to be an
eviction or disturbance in any manner of Tenant's use and
possession of the Premises or relieve Tenant from its
obligation to pay all Rent when due, or from any other
obligation hereunder.
b. Common Areas. Tenant, its employees, agents and invitees, shall have
the nonexclusive right in common with Landlord and other tenants of the
Building or Project, and their respective employees, agents and
invitees, to the use of any and all driveways, common parking areas and
other common areas that may be designated by Landlord. Such use shall
be subject to the rules and regulations of the Landlord, and Tenant
shall not obstruct or store anything into any Common Area or allow any
objectionable noises or odors to emit from the Premises, or create or
maintain a nuisance in any Common Area, or shall not distribute,
solicit or canvass any occupants of the Building or Project.
c. Tenant's Obligations.
(1) Except for services furnished by Landlord pursuant to Article
9 hereof, Tenant at Tenant's sole expense shall maintain the
Premises in good order, condition and repair, including the
interior surfaces of the ceilings, walls and floors, all
doors, all interior windows, all plumbing, pipes and fixtures,
electrical wiring, switches and fixtures, building standard
furnishings and special items and equipment installed by or at
the expense of Tenant.
(2) Tenant shall be responsible for all repairs, replacements,
renewals, improvements or alterations, in and to the Premises,
Building and Project and the facilities and systems thereof,
normal wear and tear excepted, the need for which arises out
of (i) Tenant's use or occupancy of the Premises, (ii) the
installation, removal, use or operation of Tenant's Property
(as defined in Article 13) in the Premises, (iii) the moving
of Tenant's Property into or out of the Building, or (iv) the
act, omission, misuse or negligence of Tenant, its agents,
contractors, employees or invitees.
(3) If Tenant fails to maintain the Premises in good order,
condition and repair, Landlord shall give Tenant notice to do
such acts as are reasonably required to so maintain the
Premises. If Tenant fails to promptly commence such work and
diligently prosecute it to completion, then Landlord shall
have the right to do such acts and expend such funds at the
expense of Tenant as are reasonably
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 5
9
reasonably required to perform such work. Any amount so
expended by Landlord shall be paid by Tenant promptly after
demand with interest from the date of such work, at the lesser
of fifteen percent (15%) per annum or the maximum rate then
allowed by law. Landlord shall have no liability to Tenant for
any damage, inconvenience, or interference with the use of the
Premises by Xxxxxx as a result of performing any such work.
d. Compliance with Law. Landlord and Tenant shall each do all
acts required to comply with all applicable laws, ordinances,
and rules of any public authority relating to their respective
maintenance obligations as set forth herein. Landlord shall be
responsible for compliance with the requirements of Title
III of the Americans with Disabilities Act of 1990 with
respect to physical accessibility to, within and about the
Building and Project of which the Premises are a part. Tenant
shall be responsible for said compliance with the Premises,
after the Commencement Date.
e. Waiver by Xxxxxx. Tenant expressly waives the benefits of any
statute now or hereafter in effect which would otherwise
afford the Tenant the right to make repairs at Landlord's
expense or to terminate this Lease because of Landlord's
failure to keep the Premises in good order, condition and
repair.
f. Load and Equipment Limits. Tenant shall not place a load upon
any floor of the Premises which exceeds the load per square
foot which such floor was designed to carry, as determined by
Landlord or Landlord's structural engineer. The cost of any
such determination made by Xxxxxxxx's structural engineer
shall be paid for by Tenant upon demand. Tenant shall not
install business machines or mechanical equipment which cause
noise or vibration to such a degree as to be objectionable to
Landlord or other Building tenants.
g. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant nor shall Tenant's
obligations under this Lease be reduced or abated in any
manner whatsoever by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord's
making any repairs or changes which Landlord is required or
permitted by this Lease or by any other tenant's lease or
required by law to make in or to any portion of the Project,
Building or the Premises. Landlord shall nevertheless use
reasonable efforts to minimize any interference with Xxxxxx's
business in the Premises.
h. Tenant shall give Landlord prompt notice of any damage to or
defective condition in any part or appurtenance of the
Building's mechanical, electrical, plumbing, HVAC or other
systems serving, located in, or passing through the Premises.
12. ALTERATIONS AND ADDITIONS
a. Tenant shall not make any additions, alterations or
improvements to the Premises without obtaining the prior
written consent of Landlord. Xxxxxxxx's consent shall not be
unreasonably withheld and may be conditioned on Tenant's
removing any such additions, alterations or improvements upon
Landlord's election at or before the expiration of the Term
and restoring the Premises to the same condition as on the
date Tenant took possession. All work with respect to any
addition, alteration or improvement shall be done in a good
and workmanlike manner by properly qualified and licensed
personnel approved by Landlord, and such work shall be
diligently prosecuted to completion. Landlord may, at
Xxxxxxxx's option, require that any such work be performed by
Xxxxxxxx's contractor, in which case the cost of such work
shall be paid for before commencement of the work.
Notwithstanding the foregoing Tenant's obligation to
Landlord's contractor shall not be greater than it would have
been to a qualified contractor selected through a competitive
bidding process. Tenant shall pay to Landlord upon completion
of any such work by Xxxxxxxx's contractor, an administrative
fee of fifteen percent (15%) of the cost of the work.
Landlord's review of any plans and specifications or consent
to additions, alterations or improvements shall not be
construed as a warranty or certification that such plans and
specifications or such additions, alterations or improvements
are adequate for any purpose or comply with applicable laws,
ordinances, or regulations, nor shall Landlord's approval or
consent relieve Tenant from the obligation of complying with
such applicable laws, ordinances and regulations.
b. Tenant shall pay the costs of any work done on the Premises
pursuant to Section 12a, and shall keep the Premises, Building
and Project free and clear of liens of any kind. Tenant shall
indemnify, defend against and keep Landlord free and harmless
from all liability, loss, damage, costs, attorneys' fees and
any other expense incurred on account of claims by any person
performing work or furnishing materials or supplies for Tenant
or any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any
additions or improvements which are or become the property of
Landlord under this Lease, free and clear of all attachment or
judgment liens. Before the actual commencement of any work for
which a claim or lien may be filed, Tenant shall give Landlord
notice of the intended commencement date a sufficient time
before that date to enable Landlord to post notices of
non-responsibility or any other notices which Landlord deems
necessary for the proper protection of Landlord's interest in
the Premises, Building or the Project, and Landlord shall have
the right to enter the Premises and post such notices at any
reasonable time.
c. Landlord may require, at Xxxxxxxx's sole option, that Tenant
provide to Landlord, at Tenant's expense, a lien and
completion bond in an amount equal to at least one and
one-half (1 1/2) times the total estimated cost of any
additions, alterations or improvements to be made in or to the
Premises, to protect Landlord against any liability for
mechanic's and materialmen's liens and to insure timely
completion of the work. Nothing contained in this Section 12c
shall relieve Tenant of its obligation under Section 12b to
keep the Premises, Building and Project free of all liens.
d. Unless their removal is required by Landlord as provided in
Section 12a, additions, alterations and improvements made to
the Premises shall become the property of Landlord and be
surrendered with the Premises upon the expiration of the Term;
provided, however, Tenant's equipment, machinery and trade
fixtures which can be removed without damage to the Premises
shall remain the property of Tenant and may be removed,
subject to the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY
a. All fixtures, equipment, improvements and appurtenances
attached to or built into the Premises at the commencement of
or during the Term, whether or not by or at the expense of
Tenant ("Leasehold Improvements"), shall be and remain a part
of the Premises, shall be the property of Landlord and shall
not be removed by Tenant, except as expressly provided in
Sections 12, 12d or 13b.
b. All movable partitions, business and trade fixtures, machinery
and equipment, communications equipment and office equipment
located in the Premises and acquired by or for the account of
Tenant, without expense to Landlord, which can be removed
without damage to the Building, and all furniture, furnishings
and other articles of movable personal property owned by
Tenant and located in the Premises (collectively "Tenant's
property") shall be and shall remain the property of Tenant
and may be removed by Tenant at any time during the Term;
provided that if any of Tenant's Property is removed, Tenant
shall promptly repair any damage to the Premises or to the
Building resulting from such removal.
14. RULES AND REGULATIONS
Tenant agrees to comply with (and cause its agents, contractors employees
and invitees to comply with) the rules and regulations attached hereto as
Exhibit "D" and with such reasonable modifications thereof and additions
thereto as Landlord may from time to time make. Landlord shall not be
responsible for any violation of said rules and regulations by other
tenants or occupants of the Building or Project.
Landlord /s/ XX Xxxxxx /s/ PF
------- ------
Page 6
10
15. CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord reserves the following rights, exercisable without liability
to Tenant for (a) damage or injury to property, person or business, (b)
causing an actual or constructive eviction from the Premises, or (c)
disturbing Tenant's use or possession of the Premises;
a. To name the Building and Project and to change the name or street
address of the Building or Project;
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding Xxxxxx's vaults and safes;
d. At any time during the Term, and on reasonable prior notice to Tenant,
to inspect the Premises, and to show the Premises to any prospective
purchaser or mortgagee of the Project, or to any assignee of any
mortgage on the Project, to prospective tenants, or to others having an
interest in the Project or Landlord; and
e. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or
balancing controls on other parts of the HVAC system), and to take all
steps as may be necessary or desirable for the safety, protection,
maintenance or preservation of the Premises or the Building or
Landlord's interest therein, or as may be necessary or desirable for
the operation or improvement of the Building or in order to comply with
laws, orders or requirements of governmental or other authority.
Landlord agrees to use its good faith reasonable efforts (except in an
emergency) to minimize interference with Xxxxxx's business in the
Premises in the course of any such entry.
16. ASSIGNMENT AND SUBLETTING
No assignment of this Lease or sublease of all or any part of the
Premises shall be permitted, except as provided in this Article 16.
a. Tenant shall not, without the prior written consent of Landlord, assign
or hypothecate this Lease or any interest herein or sublet the Premises
or any part thereof, or permit the use of the Premises by any party
other than Tenant. Any of the foregoing acts without such consent shall
be void and shall, at the option of Landlord, terminate this Lease.
This Lease shall not, nor shall any interest of Tenant herein, be
assignable by operation of law without the written consent of Landlord.
b. If at any time or from time to time during the term Tenant desires to
assign this Lease or sublet all or any part of the Premises, Tenant
shall give notice to Landlord setting forth the terms and provisions of
the proposed assignment or sublease, and the identity of the proposed
assignee or subtenant. Tenant shall promptly supply Landlord with such
information concerning the business background and financial condition
of such proposed assignee or subtenant as Landlord may reasonably
request. Landlord shall have the option exercisable by notice given to
Tenant within twenty (20) days after Xxxxxx's notice is given, either
to sublet such space from Tenant at the rental and on the other terms
set forth in this Lease for the term set forth in Tenant's notice, or,
in the case of an assignment, to terminate this Lease. Subject to the
other provision in this Article 16, if Landlord does not exercise such
option, Tenant may assign the Lease or sublet such space to such
proposed assignee or subtenant on the following further conditions:
(1) Landlord shall have the right to approve such proposed
assignee or subtenant, which approval shall not be
unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set
forth in the notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or
subleasee shall take possession of the Premises until an
executed counterpart of such assignment or sublease in such
form as may be required by Landlord has been delivered to
Landlord;
(4) No assignee or sublessee shall have a further right to assign
or sublet except on the terms herein contained; and
(5) Fifty percent (50%) of any sums or other economic
consideration received by Tenant as a result of such
assignment or subletting, however denominated under the
assignment or sublease, which exceed, in the aggregate, (i)
the total sums of which Tenant is obligated to pay Landlord
under this Lease (prorated to reflect obligations allocable to
the portion of the Premises subleased), plus (ii) any real
estate brokerage commissions or fees payable in connection
with such assignment or subletting and any Tenant improvement
costs, shall be paid to Landlord as additional rent under this
Lease without affecting or reducing any other obligations of
Tenant hereunder;
(6) Tenant shall not then be in default beyond the time herein
provided, if any, to cure such default; and
(7) Tenant shall be prohibited from negotiating with a person or
entity with whom Landlord is then negotiating to lease space
in the Building or Project, including any existing tenant in
the Building or Project with whom Landlord is then negotiating
to lease additional or expansion space in the Building or
Project, unless otherwise agreed to by Landlord at that time.
c. Notwithstanding the provisions of paragraphs a and b above, Tenant may
assign this Lease or sublet the Premises or any portion thereof,
without Landlord's consent and without extending any recapture or
termination option to Landlord, to any corporation which controls, is
controlled by or is under common control with Tenant, or to any
corporation resulting from a merger or consolidation with Tenant, or to
any person or entity which acquires all the assets of Tenant's business
as a going concern, provided that (I) the assignee or sublessee
assumes, in full, the obligations of Tenant under this Lease, (ii)
Tenant remains fully liable under this Lease, and (iii) the use of the
Premises under Article 8 remains unchanged.
d. No subletting or assignment shall release Tenant of Tenant's
obligations under this Lease or alter the primary liability of Tenant
to pay the Rent and to perform all other obligations to be performed by
Tenant hereunder. The acceptance of Rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision
hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of
default by an assignee or subtenant of Tenant or any successor of
Xxxxxx in the performance of any of the terms hereof, Landlord may
proceed directly against Tenant without the necessity of exhausting
remedies against such assignee, subtenant or successor. Landlord may
consent to subsequent assignments of the Lease or subletting or
amendments or modifications to the Lease with assignees of Tenant,
without notifying Tenant, or any successor of Tenant, and without
obtaining its or their consent thereto and any such actions shall not
relieve Tenant of liability under this Lease.
e. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant
requests the consent of Landlord for any act that Tenant proposes to
do, then Tenant shall, upon demand, pay Landlord an administrative fee
of One Hundred Fifty and 00/100 Dollars ($150.00) plus and reasonable
attorneys' fees attributable to any such assignment or subletting
incurred by Landlord in connection with such act or request.
f. Any transfer, by operation of law or otherwise, of Xxxxxx's interest in
this Lease (in whole or in part) or of a fifty percent (50%) or greater
interest in Tenant (whether stock, partnership interest or otherwise)
shall be deemed an assignment of this Lease within the meaning of this
Section 16. The issuance of shares of stock to other than the existing
shareholders is deemed to be a transfer of that stock for the purposes
of this Section 16. If, during the Term of this Lease, there is a
transfer of less than a fifty percent (50%) interest in Tenant, then
any other transfer of an interest in Tenant which, when added to the
total percentage interest previously transferred, totals a transfer of
greater than a fifty percent (50%) interest in Tenant shall be deemed
an assignment of Tenant's interest in this Lease within the meaning of
this Article 16.
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 7
11
17. HOLDING OVER
If Tenant shall, with the knowledge and consent of Landlord, continue to
remain in the Premises after the Expiration Date, then and in that event,
Tenant shall, by virtue of this Article 17 become a tenant by the month at
the rental per month agreed upon by Landlord and Tenant to be paid therefor
(or, failing such agreement, one hundred fifty percent (150%) of the Monthly
Installments of Base Rent in effect immediately prior to the Expiration
Date), commencing said monthly tenancy with the first (1st) day after the
Expiration Date. In such event, Xxxxxx shall deliver to Landlord at least
thirty (30) days' written notice of any intention to quit the Premises, and
Tenant shall be entitled to thirty (30) days' written notice to quit the
Premises, except in the event of nonpayment of rent in advance or of the
breach of any other covenant by Xxxxxx, IN WHICH EVENT TENANT SHALL NOT BE
ENTITLED TO ANY NOTICE TO QUIT, THE USUAL THIRTY (30) DAYS' NOTICE TO QUIT
BEING HEREBY EXPRESSLY WAIVED. In the event that Tenant shall hold over
after the Expiration Date without Landlord's knowledge or consent, then at
any time prior to Landlord's acceptance of rent from Tenant as a monthly
tenant hereunder, Landlord, at its option, may forthwith re-enter and take
possession of the Premises without process, or by any legal process in force
in the Commonwealth of Virginia, TENANT HEREBY WAIVING ANY NOTICE TO QUIT;
provided, however, that (i) Tenant shall pay Landlord a fair rental value
(but not as rent) equal to two and one half (2.5) times the greater of the
fair market value rent for the Premises or the Monthly Installment of Base
Rent plus all Additional Rent payable for the last month of the Term, for
each month or portion thereof that Tenant remains in possession following
the Expiration Date, and (ii) Tenant shall defend, indemnify and hold
Landlord harmless from and against any and all claims, losses, liabilities
or damages resulting from Xxxxxx's failure to surrender possession of the
Premises on the Expiration Date (including, but not limited to, any and all
claims made by any succeeding tenant).
18. SURRENDER OF PREMISES
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, or upon earlier termination of this Lease, in
broom-clean condition and in as good condition as when Xxxxxx took
possession, except for (i) reasonable wear and tear, (ii) loss by fire
or other casualty, and (iii) loss by condemnation. Tenant shall remove
Tenant's Property on or before the Expiration Date and promptly repair
all damage to the Premises or Building caused by such removal.
b. If Xxxxxx abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the
Premises shall be deemed to be abandoned, and, at Landlord's option,
title shall pass to Landlord under this Lease as by a bill of sale. If
Landlord elects to remove all or any part of such Tenant's Property,
the cost of removal, including repairing any damage to the Premises or
Building caused by such removal, shall be paid by Tenant. On the
Expiration Date Tenant shall surrender all keys to the Premises.
19. DESTRUCTION OR DAMAGE
a. If the Premises or the portion of the Building necessary for Tenant's
occupancy is damaged by fire, earthquake, act of God, the elements of
other casualty, Landlord shall, subject to the provisions of this
Article, promptly repair the damage, if such repairs can, in Landlord's
opinion, be completed within ninety (90) days. If Landlord determines
that repairs can be completed within ninety (90) days, this Lease shall
remain in full force and effect, except that if such damage is not the
result of the negligence or willful misconduct of Tenant or Tenant's
agents, employees, contractors, licensees or invitees, the Base Rent
shall be abated to the extent Tenant's use of the Premises is impaired,
commencing with the date of damage and continuing until completion of
the repairs required of Landlord under Section 19d.
b. If in Landlord's opinion, such repairs to the Premises or portion of
the building necessary for Tenant's occupancy cannot be completed
within ninety (90) days, Landlord may elect, upon notice to Tenant
given within thirty (30) days after the date of such fire or other
casualty, to repair such damage, in which event this Lease shall
continue in full force and effect but the Base Rent shall be partially
abated as provided in Section 19a. If Landlord does not so elect to
make such repairs, this Lease shall terminate as of the date of such
fire or other casualty.
c. If any other portion of the Building or Project is totally destroyed or
damaged to the extent that in Landlord's opinion repair thereof cannot
be completed within ninety (90) days, Landlord may elect upon notice to
Tenant given within thirty (30) days after the date of such fire or
other casualty, to repair such damage, in which event this Lease shall
continue in full force and effect, but the Base Rent shall be partially
abated as provided in Section 19a. If Landlord does not elect to make
such repairs, this Lease shall terminate as of the date of such fire or
other casualty.
d. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building and building
standard work in the Premises. Tenant shall be responsible at its sole
cost and expense for the repair, restoration and replacement of any
other Leasehold Improvements and Tenant's Property. Landlord shall not
be liable for any loss of business, inconvenience or annoyance arising
from any repair or restoration of any portion of the Premises, Building
or Project as a result of any damage from fire or other casualty.
e. If the damage to the Premises occurs during the last six (6) months of
the Lease Term, Landlord or Tenant may elect to terminate this Lease as
of the date the damage occurred, regardless of the sufficiency of any
insurance proceeds. The party electing to terminate this Lease shall
give written notification to the other party of such election within
thirty (30) days after the date of the casualty event. In the event
that Tenant has an option to extend or renew this Lease, and the time
within which said option may be exercised has not yet expired. Tenant
shall exercise such option, if it is to be exercised at all, no later
than twenty (20) days after the occurrence of such partial damage to
the Premises during the last six (6) months of the term of this Lease.
If Tenant duly exercises such option during said twenty (20) day
period, Landlord shall, at Landlord's expense, repair such damage, but
not Tenant's fixtures, equipment or Tenant improvements, as soon as
reasonably possible and this Lease shall continue in full force and
effect. If Tenant fails to exercise such option during said twenty (20)
day period, then Landlord may at Landlord's option terminate and cancel
this Lease as of the expiration of said twenty (20) day period by
giving written notice to Tenant of Landlord's election to do so within
ten (10) days after the expiration of said twenty (20) day period,
notwithstanding any term or provision in the grant of the option to the
contrary.
f. Landlord and Tenant hereby acknowledge that the provisions of this
Article 19 are intended to be the sole and exclusive provisions
applicable in the event of any fire, casualty or unavoidable accident
to the Premises or the Building, and that the same are provided in lieu
of the operation of Virginia Code Xxx. sec. 55-226 (as the same may be
amended and any successor provision thereto).
20. EMINENT DOMAIN
a. If the whole of the Building or Premises is lawfully taken by
condemnation or in any other manner for any public or quasi-public
purpose this Lease shall terminate as of the date of such taking, and
Rent shall be prorated to such date. If less than the whole of the
Building or Premises is so taken, this Lease shall be unaffected by
such taking, provided that (i) Tenant shall have the right to terminate
this Lease by notice to Landlord given within ninety (90) days after
the date of such taking if twenty percent (20%) or more of the Premises
is taken and the remaining area of the Premises is not reasonably
sufficient for Tenant to continue operation of its business, and (ii)
Landlord shall have the right to terminate this Lease by notice to
Tenant given within ninety (90) days after the date of such taking. If
either Landlord or Tenant so elects to terminate this Lease, the Lease
shall terminate on the thirtieth (30th) day after either such notice.
The Rent shall be prorated to the date of termination. If this Lease
continues in force upon such partial taking, the Base Rent and Xxxxxx's
Proportionate Share shall be equitably adjusted according to the
remaining Rentable Area of the Premises and Project.
b. In the event of any taking, partial or whole, all of the proceeds of
any award, judgment or settlement payable by the condemning authority
shall be the exclusive property of Landlord, and Tenant hereby assigns
to Landlord all of its right, title and interest in any award, judgment
or settlement from the condemning authority. Tenant, however, shall
have the right, to the extent that Landlord's award is not reduced or
prejudiced, to claim from the condemning authority (but not from
Landlord) which compensation as may be recoverable by Tenant in its own
right for relocation expenses and damage to Xxxxxx's personal property.
Landlord /s/ JF Tenant /s/ PF
----------- ----------
8
12
c. In the event of a partial taking of the Premises which does not result
in a termination of this Lease, Landlord shall restore the remaining
portion of the Premises as nearly as practicable to its condition prior
to the condemnation or taking, but only to the extent of building
standard work. Tenant shall be responsible at its sole cost and expense
for the repair, restoration and replacement of any other Leasehold
Improvements and Tenant's Property.
21. INDEMNIFICATION
a. To the extent permitted by applicable law, Tenant shall indemnify and
hold Landlord harmless against and from liability and claims of any
kind for loss or damage to property of Tenant or any other person, or
for any injury to or death of any person, arising out of: (1) Tenant's
use and occupancy of the Premises, or any work, activity or other
things allowed or suffered by Tenant to be done in, on, or about the
Premises; (2) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (3) any negligent or tortuous act or
omission of Tenant, its agents, employees, invitees or contractors.
Tenant shall at Tenant's expense, and by counsel satisfactory to
Landlord, defend
Landlord in any action or proceeding arising from any such claim and
shall indemnify Landlord against all costs, attorneys' fees, expert
witness fees and any other expenses incurred in such action or
proceeding. As a material part of the consideration for Xxxxxxxx's
execution of this Lease, Xxxxxx hereby assumes all risk of damage or
injury to any person or property in, on or about the Premises from any
cause to the extent permitted by law. The provisions of this Section
21a shall survive the expiration or sooner termination of this Lease.
b. Landlord, except for Landlord's gross negligence, shall not be liable
for injury or damage which may be sustained by the person or property
of Tenant, its employees, invitees or customers, or any other person in
or about the Premises, caused by or resulting from fire, steam,
electricity, gas, water or rain which may leak or flow from or into any
part of the Premises, or from the breakage, leakage, obstruction or
other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, and the like whether such damage or
injury results from conditions arising upon the Premises or upon other
portions of the Building or Project or from other sources. Landlord
shall not be liable for any damages arising from any act or omission of
any other tenant of the Building or Project.
22. TENANT'S INSURANCE
a. All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies acceptable to Landlord and
Landlord's lender and qualified to do business in the State. Each
policy shall name Xxxxxxxx, and at Xxxxxxxx's request any mortgage of
Landlord, as an additional insured, as their respective interests may
appear. Each policy shall contain (i) a cross-liability endorsement,
(ii) a provision that such policy and the coverage evidenced thereby
shall be primary and non-contributing with respect to any policies
carried by Landlord and that any coverage carried by Landlord shall be
excess insurance, and (iii) a waiver by the insurer of any right of
subrogation against Landlord, its agents, employees and
representatives, which arises or might arise by reason of any payment
under such policy or by reason of any act or omission of Landlord, its
agents, employees or representatives. A copy of each paid up policy
(authenticated by the insurer) or certificate of the insurer evidencing
the existence and amount of each insurance policy required hereunder
shall be delivered to Landlord before the date Tenant is first given
the right of possession of the Premises, and thereafter within thirty
(30) days after any demand by Landlord therefor. Landlord may, at any
time and from time to time, inspect and/or copy any insurance policies
required to be maintained by Tenant hereunder. No such policy shall be
cancelable, except after twenty (20) days' written notice to Landlord
and Xxxxxxxx's lender. Tenant shall furnish Landlord with renewals or
"binders" of any such policy at least ten (10) days prior to the
expiration thereof. Xxxxxx agrees that if Xxxxxx does not take out and
maintain such insurance, Landlord may (but shall not be required to)
procure said insurance on Tenant's behalf and charge the Tenant the
premiums together with a ten percent (10%) handling charge (to cover
Xxxxxxxx's administration and handling of said policy), payable upon
demand. Tenant shall have the right to provide such insurance coverage
pursuant to blanket policies obtained by the Tenant, provided such
blanket policies expressly afford coverage to the Premises, Landlord,
Xxxxxxxx's mortgagee and Tenant as required to this Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect policies of casualty insurance
covering (i) all Leasehold Improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant to the
provisions of Article 12 hereof), and (ii) trade fixtures, merchandise
and other personal property from time to time, providing protection
against any peril included within the classification "Fire and Extended
Coverage" together with insurance against sprinkler damage, vandalism
and malicious mischief. The proceeds of such insurance shall be used
for the repair or replacement of the property so insured. Upon
termination of this Lease following a casualty as set forth herein, the
proceeds under (i) shall be paid to Landlord, and the proceeds under
(ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect workers' compensation insurance
as required by law and comprehensive public liability and property
damage insurance with respect to the construction of improvements on
the Premises, the use, operation or condition of the Premises and the
operations of Tenant in, on or about the Premises, providing personal
injury and broad form property damage coverage including blanket
contractual liability coverage and tenant's legal liability coverage,
for not less than Two Million Dollars ($2,000,000.00) combined single
limit for bodily injury, death and property damage liability.
23. WAIVER OF SUBROGATION
Landlord and Tenant each hereby agree to exercise all reasonable
commercial diligence to have included in each of its hazard insurance
policies (insuring the Building and Landlord's personal property
therein, in the case of Landlord, and insuring the Tenant's personal
property and the Leasehold Improvements in the Premises, in the case of
Tenant, against loss, damage or destruction by fire or other casualty
therein covered) a waiver of the insurer's right of subrogation against
the other party, or, if such waiver should be unobtainable or
unenforceable, (i) and express agreement that such policy shall not be
invalidated if the insured waives, before the casualty, the right of
recovery against any party responsible for a casualty covered by the
policy or (ii) any other form of permission for the release of the
other party. If such waiver, agreement or permission shall not be, or
shall cease to be, obtainable (A) without additional charge, or (B) at
all, the insured party shall so notify the other party promptly after
learning thereof. In the first such case, if the other party shall so
elect and shall pay the insurer's additional charge therefor, such
waiver, agreement or permission shall be included in the policy.
Landlord and Xxxxxx each hereby release the other party with respect to
any claim (including a claim for negligence) which it might otherwise
have against the other party for loss, damage or destruction with
respect to the releasing party's property occurring during the Term of
this Lease to the extent to which the releasing party is insured and
receives proceeds under a policy or policies containing a waiver of
subrogation or permission to release liability, as provided in the
preceding paragraph. If, notwithstanding the recovery of insurance
proceeds by either party for such loss, damage or destruction of its
property, the other party is liable to the first party with respect
thereto or is obligated under this Lease to make replacement, repair or
restoration or payment, then (provided the first party's right of full
recovery under its insurance policies is not thereby prejudiced or
otherwise adversely affected) the amount of the net proceeds of the
first party's insurance against such loss, damage or destruction shall
be offset against the second party's liability to the first party
therefor, or shall be made available to the second party to pay for
replacement, repair or restoration, as the case may be. Nothing
contained in this paragraph shall relieve either party of any duty
imposed elsewhere in this Lease to repair, restore or rebuild or to
nullify any abatement of Rent provided for elsewhere in this Lease.
4. SUBORDINATION AND ATTORNMENT
This Lease is and shall be subject and subordinate to the lien of any
mortgage (which term "mortgage" shall include both construction and
permanent financing and shall include deeds of trust, ground leases and
similar security agreements) which may now or hereafter encumber or
otherwise affect the land and Building of which the Premises form a
part, or Landlord's leasehold interest therein), and to all and any
renewals, extensions, modifications, recastings or refinancing thereof;
provided, however, that Xxxxxxxx's mortgagee may elect, at its sole
election, that any mortgage held by such mortgagee shall be
subordinate, in whole or in part, to this Lease.
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 9
13
Within ten (10) days after written request of Landlord, or any
mortgagee or deed of trust beneficiary of Landlord, or ground lessor of
Landlord, Tenant shall, in writing, subordinate its rights under this
Lease to the lien of any mortgage or deed of trust, or to the interest
of any lease in which Landlord is xxxxxx, and to all advances made or
hereafter to be made thereunder. However, before signing any
subordination agreement, Tenant shall have the right to obtain from any
lender or lessor or Landlord requesting such subordination, an
agreement in writing providing that, as long as Tenant is not in
default hereunder, this Lease shall remain in effect for the full Term.
The holder of any security interest may, upon written notice to Tenant,
elect to have this Lease prior to its security interest regardless of
the time of the granting or recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure
or termination of a lease in which Landlord is lessee, Tenant shall
attorn to the purchaser, transferee or lessor as the case may be, and
recognize that party as Landlord under this Lease, provided such party
acquires and accepts the Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES
Within ten (10) days after written request from Landlord, Tenant shall
execute and deliver to Landlord or Landlord's designee a written
statement certifying (a) that this Lease is unmodified and in full
force and effect, or is in full force and effect as modified, and
stating the modifications; (b) the amount of Base Rent and the date to
which Base Rent and additional rent have been paid in advance; (c) the
amount of any security deposited with Landlord; (d) that Landlord is
not in default hereunder or, if Xxxxxxxx is claimed to be in default,
stating the nature of any claimed default, and (e) such other matters
relating to this Lease as Landlord shall request. Any such statement
may be relied upon by a purchaser, assignee or lender. Tenant's failure
to execute and deliver such statement within the time required shall at
Landlord's election be a default under this Lease and shall also be
conclusive upon Tenant that: (1) this Lease is in full force and effect
and has not been modified except as represented by Landlord; (2) there
are no uncured defaults in Landlord's performance and that Tenant has
no right of offset, counter-claim or deduction against Rent; and (3)
not more than one month's Rent has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST
In the event of any sale or transfer by Landlord of the Premises,
Building or Project, and assignment of this Lease by Landlord, Landlord
shall be and is hereby entirely freed and relieved of any and all
liability and obligations contained in or derived from this Lease
arising out of any act, occurrence or omission relating to the
Premises, Building, Project or Lease occurring after the consummation
of such sale or transfer, providing the purchaser shall expressly
assume all of the covenants and obligations of Landlord under this
Lease. If any security deposit or prepaid Rent has been paid by Tenant,
Landlord may transfer the security deposit or prepaid Rent to
Landlord's successor and upon such transfer, Landlord shall be relieved
of any and all further liability with respect thereto.
27. DEFAULT
27.1 Events of Default. The occurrence of any one or more of the following
matters constitutes a Default by Tenant under this Lease:
a. Failure by Tenant to pay any Rent or any other moneys required
to be paid by Tenant under this Lease within five (5) business
days after written notice such payment is due and payable;
b. Failure by Xxxxxx to observe or perform any of the covenants
with respect to assignment and subletting set forth in Article
16;
c. Failure by Tenant to comply with Xxxxxx's obligations set
forth in Article 37;
d. Failure by Tenant to cure, immediately after receipt of notice
from Landlord, any hazardous condition which Xxxxxx has
created in violation of law or of this Lease;
e. Failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease, if such
failure continues for thirty (30) days after notice thereof
from Landlord to Tenant;
f. The levy upon, under writ of execution or the attachment by
legal process of, the leasehold interest of Tenant, or the
filing or creation of a lien with respect to such leasehold
interest, which lien shall not be released or discharged
within ten (10) days from the date of such filing;
g. Tenant vacates or abandons the Premises or fails to take
possession of the Premises when available for occupancy (the
transfer of a substantial part of the operations, business and
personnel of Tenant to some other location being deemed,
without limiting the meaning of the term "vacates or
abandons", to be a vacation or abandonment within the meaning
of this clause g), whether or not Tenant thereafter continues
to pay Rent due under this Lease;
h. Tenant becomes insolvent or bankrupt or admits in writing its
inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors, or applies for or
consents to the appointment of a trustee or receiver for
Tenant or for the substantial part of its property;
i. A trustee or receiver is appointed for Tenant or for the major
part of its property and is not discharged within sixty (60)
days after such appointment; or
j. Any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding for relief under
any bankruptcy law, or similar law for the relief of debtors,
is instituted (i) by Tenant or (ii) against Tenant and is
allowed against it or is consented to by it or is not
dismissed within sixty (60) days after such institution.
27.2 Rights and Remedies of Landlord. If a Default occurs Landlord shall
have the rights and remedies hereinafter set forth, which shall be
distinct, separate and cumulative and shall not operate to exclude or
deprive Landlord of any other right or remedy allowed it by law:
a. Landlord may terminate this Lease by giving to Tenant notice
of Xxxxxxxx's election to do so, in which event the Term of
this Lease shall end, and all right, title and interest of
Tenant hereunder shall expire, on the date stated in such
notice;
b. Landlord may terminate the right of Tenant to possession of
the Premises without terminating this Lease by giving notice
to Tenant that Xxxxxx's right to possession shall end on the
date stated in such notice, whereupon the right of Tenant to
possession of the Premises or any part thereof shall cease on
the date stated in such notice; and
c. Landlord may enforce the provisions of this Lease and may
enforce and protect the rights of Landlord hereunder by a suit
or suits in equity or at law for the specific performance of
any covenant or agreement contained herein, or for the
enforcement of any other appropriate legal or equitable
remedy, including recovery of all moneys due or to become due
from Tenant under any of the provisions of this Lease.
d. Xxxxxxxx's rights and remedies hereunder are cumulative. In
the event of a breach by Xxxxxx, Landlord shall have all
rights and remedies provided by law.
27.3 Right to Re-Enter. If Landlord exercises either of the remedies
provided in Sections 27.2a or b, Xxxxxx shall surrender possession and
vacate the Premises and immediately deliver possession thereof to
Landlord, and Landlord may re-enter and take complete and peaceful
possession of the Premises, full and complete license to do so being
hereby granted to Landlord, and Landlord may remove all occupants and
property therefrom, using such force as may be necessary, without being
deemed guilty in any manner of trespass,
Page 10
Landlord /s/ XX Xxxxxx /s/ PF
------ ------
14
eviction or forcible entry and detainer and without relinquishing
Landlord's right to Rent or any other right given to Landlord
hereunder or by operation of law.
27.4 Current Damages. If Landlord terminates the right of Tenant to
possession of the Premises without terminating this Lease, Landlord
shall have the right to immediate recovery of all amounts then due
hereunder. Such termination of possession shall not release Tenant, in
whole or in part, from Xxxxxx's obligation to pay Rent hereunder for
the full Term, and Landlord shall have the right, from time to time,
to recover from Tenant, and Tenant shall remain liable for, all Base
Rent and any other sums accruing as they become due under this Lease
during the period from the date of such notice of termination of
possession to the stated end of the Term. In any such case, Landlord
may relet the Premises or any part thereof for the account of Tenant
for such rent, for such time (which may be for a term extending beyond
the Term of this Lease) and upon such terms as Landlord shall
determine and may collect the rents from such reletting. Landlord
shall not be required to accept any tenant offered by Tenant or to
observe any instructions given by Tenant relative to such reletting.
Also, in any such case, Landlord may make repairs, alterations and
additions in or to the Premises and redecorate the same to the extent
deemed by Landlord necessary or desirable and in connection therewith
change the locks to the Premises, and Tenant upon demand shall pay the
cost of all of the foregoing together with Xxxxxxxx's expenses of
reletting. The rents from any such reletting shall be applied first to
the payment of the expenses of re-entry, redecoration, repair and
alterations and the expenses of reletting and second to the payment of
Rent herein provided to be paid by Xxxxxx. Any excess or residue shall
operate only as an offsetting credit against the amount of Rent due
and owing as the same thereafter becomes due and payable hereunder,
and the use of such offsetting credit to reduce the amount of Rent due
Landlord, if any, shall not be deemed to give Tenant any right, title
or interest in or to such excess or residue and any such excess or
residue shall belong to Landlord solely, and in no event shall Tenant
be entitled to a credit on its indebtedness to Landlord in excess of
the aggregate sum (including Base Rent and any other charges) which
would have been paid by Tenant for the period for which the credit to
Tenant is being determined, had no Default occurred. No such re-entry
or repossession, repairs, alterations and additions, or reletting
shall be construed as an eviction or ouster of Tenant or as an
election on Landlord's part to terminate this Lease, unless a written
notice of such intention is given to Tenant, or shall operate to
release Tenant in whole or in part from any of Tenant's obligations
hereunder, and Landlord, at any time and from time to time, may sue
and recover judgment for any deficiencies remaining after the
application of the proceeds of any such reletting.
27.5 Final Damages. In the event the Landlord shall elect to terminate this
Lease pursuant to Section 27.2, Landlord shall have the option, to be
exercised in Landlord's sole discretion, to require Tenant to pay
Landlord, in lieu of the sums set forth in the preceding Section 27.4,
the sum of (a) all accrued and unpaid Rent as of the date of such
termination (together with interest and late charges thereon in the
amounts specified herein), plus (b) the amount of the Security Deposit
then held by Landlord (if any), plus (c) the present value (based on a
discount rate equal to the then-current average yield on Treasury
bonds maturing at approximately the same time as the Expiration Date)
of the aggregate of the Monthly Installments of Base Rent and
Additional Rent (as estimated by Landlord acting reasonably, giving
effect to any provisions hereof for the increase in Monthly
Installments of Base Rent) for the eighteen (18) month period
commencing on the date following such termination (or, if less than
eighteen (18) months remain in the Term, the aggregate of Landlord's
reasonable estimate of the Monthly Installments of Base Rent and
Additional Rent for the remainder of the Term), in one lump sum, said
sum being the parties' reasonable estimation of the damages which
Landlord will suffer as a result of Tenant's breach (including the
loss of rents, the costs of reletting, and the rent concessions which
Xxxxxxxx would have to incur as a consequence thereof) as of the date
hereof. Tenant shall pay to Landlord the foregoing sum immediately
upon delivery to it of Landlord's notice of the foregoing election.
Landlord and Tenant hereby acknowledge and agree that the foregoing
sum represents an enforceable liquidated damages remedy, and does not
(and in no event shall be deemed to) constitute a penalty, the
parties hereby further acknowledging that, in light of the size of
the Premises, Landlord is likely to encounter a substantial and
prolonged period of vacancy, and substantial brokerage fees and other
costs and expenses in connection with any attempt to relet the
Premises following a termination of this Lease.
27.6 Anticipatory Breach. Nothing contained herein shall prevent the
enforcement of any claim Landlord may have against Tenant for
anticipatory breach of the unexpired Term of this Lease. In the event
of a breach or anticipatory breach by Tenant of any of the covenants
or provisions hereof, Landlord shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not provided for
herein.
27.7 Removal of Personal Property. All property of Tenant removed from the
Premises by Landlord pursuant to any provision of this Lease or
applicable law may be handled, removed or stored by Landlord at the
cost and expense of Tenant, and Landlord shall not be responsible in
any event for the value, preservation or safekeeping thereof. Tenant
shall pay Landlord for all expenses incurred by Landlord with respect
to such removal and storage so long as the same is in Landlord's
possession or under Xxxxxxxx's control. All such property not removed
from the Premises or retaken from storage by Tenant within thirty (30)
days after the end of the Term, however terminated, at Landlord's
option, shall be conclusively deemed to have been conveyed by Tenant
to Landlord as by bill of sale without further payment or credit by
Landlord to Tenant.
27.8 Attorneys' Fees. Tenant shall pay all of Landlord's costs, charges and
expenses, including court costs and reasonable attorneys' fees,
incurred in enforcing Tenant's obligations under this Lease, incurred
by Landlord in any action brought by Tenant in which Landlord is the
prevailing party, or incurred by Landlord in any litigation,
negotiation or transaction in which Tenant causes Landlord, without
Landlord's fault, to become involved or concerned. For purposes of the
foregoing sentence, Landlord shall be deemed to be the prevailing
party in any action brought by Tenant if, upon resolution of the
action (whether by voluntary withdrawal by Xxxxxx, unilateral action,
mutual settlement, dismissal or judgment), Xxxxxx has failed in any
material respect to obtain all relief sought by Tenant in such action;
provided that Landlord shall in all events be deemed to be the
prevailing party in any action in which Landlord is granted a judgment
for possession of the Premises. In any such events Landlord shall be
entitled to recover one hundred percent (100%) of its legal fees
incurred in such action, notwithstanding that Landlord has not
prevailed on one hundred percent (100%) of its claims in such action.
27.9 Assumption or Rejection in Bankruptcy. If Tenant is adjudged bankrupt,
or a trustee in bankruptcy is appointed for Tenant. Landlord and
Tenant, to the extent permitted by law, agree to request that the
trustee in bankruptcy determine within sixty (60) days thereafter
whether to assume or to reject this Lease.
27.10 Default Under Other Leases. If the term of any lease, other than this
Lease, for any space in the Project under which Tenant is now or
hereafter the tenant, shall be terminated or terminable after the
making of this Lease because of any default by Tenant under such other
lease, such fact shall empower Landlord, at Landlord's sole option, to
terminate this Lease by notice to Tenant or to exercise any of the
rights or remedies set forth in Section 27.2.
27.11 WAIVER OF TENANT'S RIGHT OF REDEMPTION. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TENANT HEREBY WAIVES ANY AND ALL RIGHTS OF REDEMPTION
AND RIGHTS TO CURE ANY DEFAULT HEREUNDER (HOWSOEVER DENOMINATED) NOW
OR HEREAFTER GRANTED TO TENANT PURSUANT TO APPLICABLE LAW. NO
ACCEPTANCE BY LANDLORD OF ANY MONIES OWED BY TENANT TO LANDLORD SHALL
CONSTITUTE A WAIVER OF THE PROVISIONS OF THIS ARTICLE 27, NOR SHALL
ANY REFUSAL BY LANDLORD TO ACCEPT ANY TENDER BY TENANT OF ANY SUMS
OWED BY TENANT TO LANDLORD, IN CONNECTION WITH ANY PURPORTED EXERCISE
OF ANY RIGHT OF REDEMPTION OR RIGHT TO CURE TO WHICH TENANT WOULD
OTHERWISE BE ENTITLED, CONSTITUTE A TERMINATION OF THIS LEASE OR A
RELEASE OF TENANT FROM ANY LIABILITY HEREUNDER.
27.12 CERTAIN WAIVERS. EXCEPT AS SPECIFICALLY PROVIDED IN THIS LEASE AND
EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY PURSUANT TO APPLICABLE
LAW, TENANT HEREBY EXPRESSLY WAIVES THE SERVICE OF ANY NOTICE TO CURE
OR VACATE OR TO QUIT THE PREMISES AND WAIVES THE SERVICE OF ANY OTHER
NOTICE OR DEMAND PRESCRIBED BY ANY CURRENT OR FUTURE STATUTE OR OTHER
APPLICABLE LAW.
27.13 Landlord's Default. It is expressly understood and agreed that if
Xxxxxx obtains a money judgment against Landlord resulting from any
default or other claim arising under this Lease, that judgment shall
be satisfied only out of the rents, issues, profits and other income
actually received on account of Landlord's right, title and interest
in the Premises, Building or Project, and no other real,
Page 11 Landlord /s/ XX Xxxxxx /s/ PF
------- -------
15
personal or mixed property of Landlord (or of any of the partners which
comprise Landlord, if any) wherever situated, shall be subject to levy
to satisfy such judgment. Tenant shall not have the right to terminate
this Lease or to withhold, reduce or offset any amount against any
payments of Rent or any other charges due and payable under this Lease,
except as otherwise specifically provided herein.
28. BROKERAGE FEES
Tenant warrants and represents that it has not dealt with any real
estate broker or agent in connection with this Lease or its negotiation
except those noted in Section 2pq. Tenant shall indemnify and hold
Landlord harmless from any cost, expense or liability (including costs
of suit and reasonable attorneys' fees) for any compensation,
commission or fees claimed by any other real estate broker or agent in
connection with this Lease or its negotiation by reason of any alleged
act of Tenant.
29. NOTICES
All notices, approvals and demands permitted or required to be given
under this Lease shall be in writing and deemed duly served or given if
personally delivered or sent by certified or registered U.S. mail,
postage prepaid, and addressed as follows: (a) if to Landlord, to
Landlord's Mailing Address and to the Building manager, and (b) if to
Tenant, to Tenant's Mailing Address; provided, however, notices to
Tenant shall be deemed duly served or given if delivered or mailed to
Tenant at the Premises. Landlord and Xxxxxx may from time to time by
notice to the other designate another place for receipt of future
notices.
Landlord hereby designates Xxxxxx X. Xxxxxx, whose address in the
Commonwealth of Virginia is 0000 Xxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000 as Landlord's agent for the purpose of service of any process,
notice, order or demand required or permitted by law to be served upon
Landlord; provided, however, that any such notice, order or demand
required or permitted by law to be served upon Landlord shall in
addition be served to Landlord in accordance with the first sentence of
this Article 29.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS
In the event of imposition of federal, state or local government
controls, rules, regulations, or restrictions on the use or consumption
of energy or other utilities during the Term, both Landlord and Tenant
shall be bound thereby. In the event of a difference in interpretation
by Xxxxxxxx and Tenant of any such controls, the interpretation of
Landlord shall prevail, and Landlord shall have the right to enforce
compliance therewith, including the right of entry into the Premises to
effect compliance.
32. QUIET ENJOYMENT
Tenant, upon paying the Rent and performing all of its obligations
under this Lease, shall peaceably and quietly enjoy the Premises,
subject to the terms of this Lease and to any mortgage, lease, or other
agreement to which this Lease may be subordinate.
33. OBSERVANCE OF LAW
Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law,
statute, ordinance or governmental rule or regulation now in force or
which may hereafter be enacted or promulgated. Tenant shall, at its
sole cost and expense, promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or requirements now in
force or which may hereafter be in force, and with the requirements of
any board of fire insurance underwriters or other similar bodies now or
hereafter constituted, relating to, or affecting the condition, use or
occupancy of the Premises, excluding structural changes not related to
or affected by Tenant's improvements or acts. The judgment of any court
of competent jurisdiction or the admission of Tenant in any action
against Tenant, whether Landlord is a party thereto or not, that Tenant
has violated any law, ordinance or governmental rule, regulation or
requirement, shall be conclusive of that fact as between Landlord and
Tenant.
34. FORCE MAJEURE
Any prevention, delay or stoppage of work to be performed by Landlord
or Tenant which is due to strikes, labor disputes, inability to obtain
labor, materials, equipment or reasonable substitutes therefor, acts of
God, governmental restrictions or regulations or controls, judicial
orders, enemy or hostile government actions, civil commotion, fire or
other casualty, or other causes beyond the reasonable control of the
party obligated to perform hereunder, shall excuse performance of the
work by that party for a period equal to the duration of that
prevention, delay or stoppage. Nothing in this Article 34 shall excuse
or delay Xxxxxx's obligation to pay Rent or other charges under this
Lease.
35. CURING TENANT'S DEFAULTS
If Tenant defaults in the performance of any of its obligations under
this Lease, Landlord may (but shall not be obligated to) without
waiving such default, perform the same for the account at the expense
of Tenant. Tenant shall pay Landlord all costs of such performance
promptly upon receipt of a bill therefor.
36. SIGN CONTROL
Tenant shall not affix, paint, erect or inscribe any sign, projection,
awning, signal or advertisement of any kind to any part of the
Premises, Building or Project, including without limitation, the inside
or outside of windows or doors, without the written consent of
Landlord. Landlord shall have the right to remove any signs or other
matter, installed without Xxxxxxxx's permission, without being liable
to Tenant by reason of such removal, and to charge the cost of removal
to Tenant as additional rent hereunder payable within ten (10) days of
written demand by Landlord.
Page 12 Landlord /s/ XX Xxxxxx /s/ PF
-------- --------
16
37. HAZARDOUS SUBSTANCES
37.1 Defined Terms.
a. "Claim" shall mean and include any demand, cause of action,
proceeding or suit for any one or more of the following: (i)
actual or punitive damages, losses, injuries to person or
property, damages to natural resources, fines, penalties,
interest, contribution or settlement, (ii) the costs of site
investigations, feasibility studies, information requests,
health or risk assessments, or Response (as hereinafter
defined) actions, and (iii) enforcing insurance, contribution
or indemnification agreements.
b. "Environmental Laws" shall mean and include all federal, state
and local statutes, ordinances, regulations and rules relating
to environmental quality, health, safety, contamination and
clean-up, including, without limitation, the Clean Air Act, 42
U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C.
Section 1251 et seq.; and the Water Quality Act of 1987; the
Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"),
7 U.S.C. Section 136 et seq.; the Marine Protection, Research,
and Sanctuaries Act, 33 U.S.C., Section 1401 et seq.; the
National Environmental Policy Act, 42 U.S.C. Section 4321 et
seq.; the Noise Control Act, 42 U.S.C. Section 4901 et seq.;
the Occupational Safety and Health Act, 29 U.S.C. Section 651
et seq.; the Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C. Section 6901 et seq., as amended by the Hazardous
and Solid Waste Amendments of 1984; the Safe Drinking Water
Act, 42 U.S.C. Section 3001 et seq.; the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. Section 9601 et seq., as amended by the
Superfund Amendments and Reauthorization Act, the Emergency
Planning and Community Right-to-Know Act, and Radon Gas and
Indoor Air Quality Research Act; the Toxic Substance Control
Act ("TSCA"), 15 U.S.C. Section 2601 et seq.; the Atomic
Energy Act, 42 U.S.C. Section 2011 et seq., and the Nuclear
Waste Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and
state superlien and environmental clean-up statutes, with
implementing regulations and guidelines, as amended from time
to time. Environmental Laws shall also include all state,
regional, county, municipal and other local laws, regulations,
and ordinances insofar as they are equivalent or similar to
the federal laws recited above or purport to regulate
Hazardous Materials (as hereinafter defined).
c. "Hazardous Materials" shall mean and include the following,
including mixtures thereof: any hazardous substance,
pollutant, contaminant, waste, by-product or constituent
regulated under CERCLA; oil and petroleum products and natural
gas, natural gas liquids, liquefied natural gas and synthetic
gas usable for fuel; pesticides regulated under the FIFRA;
asbestos and asbestos-containing materials, PCBs, and other
substances regulated under the TSCA; source material, special
nuclear material, by-product material and any other
radioactive materials or radioactive wastes, however produced,
regulated under the Atomic Energy Act or the Nuclear Waste
Policy Act; chemicals subject to the OSHA Hazard
Communication Standard, 29 C.F.R. Section 1910.1200 et seq.,
and industrial process and pollution control wastes, whether
or not hazardous within the meaning of RCRA; any substance
whose nature and/or quantity of existence, use, manufacture,
disposal or effect render it subject to federal, state or
local regulation, investigation, remediation, or removal as
potentially injurious to public health or welfare.
d. "Use" means to manage, generate, manufacture, process, treat,
store, use, re-use, refine, recycle, reclaim, blend or burn
for energy recovery, incinerate, accumulate speculatively,
transport, transfer, dispose of, or abandon Hazardous
Materials.
e. "Release" or "Released" shall mean any actual or threatened
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or
disposing of Hazardous Materials into the environment, as
"environment" is defined in CERCLA.
f. "Response" or "Respond" shall mean action taken in compliance
with Environmental Laws to correct, remove, remediate,
cleanup, prevent, mitigate, monitor, evaluate, investigate,
assess or xxxxx the Release of a Hazardous Material.
37.2 Tenant's Obligations with Respect to Environmental Matters. During the
term of this Lease, (a) Tenant shall comply at its own cost with all
Environmental Laws; (b) Tenant shall not Use, or authorize the Use of,
any Hazardous Materials on the Premises, including installation of any
underground storage tanks, without prior written disclosure to and
approval by the Landlord, except for small quantities ordinarily used
by office tenants in ordinary office equipment, such as copying
machines, typewriters and personal computers; but only to the extent
permitted by law; (c) Tenant shall not take any action that would
subject the Premises to permit requirements under RCRA for storage,
treatment or disposal of Hazardous Materials; (d) Tenant shall not
dispose of Hazardous Materials in dumpsters provided by Landlord for
tenant use; (e) Tenant shall not discharge Hazardous Materials into
Project drains or sewers; (f) Tenant shall not cause or allow the
Release of any Hazardous Materials on, to, or from the Project; and (g)
Tenant shall arrange at its own cost for the lawful transportation and
off-site disposal of all Hazardous Materials that it generates.
37.3 Copies of Notices. During the term of this Lease, Tenant shall provide
Landlord promptly with copies of all summons, citations, directives,
information inquiries or requests, notices of potential responsibility,
notices of violation or deficiency, orders or decrees, Claims,
complaints, investigations, judgments, letters, notices of
environmental liens or Response actions in progress, and other
communications, written or oral, actual or threatened, from the United
States Environmental Protection Agency, Occupational Safety and Health
Administration, or other federal, state or local agency or authority,
or any other entity or individual, concerning (a) any Release of a
Hazardous Material on, to or from the Premises; (b) the imposition of
any lien on the Premises; or (c) any alleged violation of or
responsibility under Environmental Laws. Landlord and Landlord's
beneficiaries, agents and employees shall have the right to enter the
Premises and conduct appropriate inspections or tests in order to
determine Tenant's compliance with Environmental Laws.
37.4 Tests and Reports. Upon written request by Xxxxxxxx, Tenant shall
provide Landlord with the results of appropriate reports and tests,
with transportation and disposal contracts for Hazardous Materials,
with any permits issued under Environmental Laws, and with any other
applicable documents to demonstrate that Tenant complies with all
Environmental Laws relating to the Premises.
37.5 Tenant's Obligation to Respond. If Tenant's Use of Hazardous Materials
at the Premises (a) gives rise to liability or to a Claim under any
Environmental Law, (b) causes a significant public health effect, or
(c) creates a nuisance, Tenant shall promptly take all applicable
action in Response.
37.6 Indemnification. Tenant shall indemnify, defend, and hold harmless
Landlord, its beneficiaries, its lenders, any managing agents and
leasing agents of the Premises, and their respective agents,
representatives partners, officers, directors and employees from and
against any and all Claims arising from or attributable to any breach
by Tenant of any of its warranties, representations or covenants in
this Article. Tenant's obligations hereunder shall survive the
termination or expiration of this Lease.
38. PARKING
a. Parking Rules and Regulations. Tenant shall observe and abide by all
parking rules and regulations created or imposed from time to time by
Landlord. If Tenant commits, permits or allows any activity prohibited
by the rules and regulations, Landlord shall have the right, without
notice and in addition to any other available rights and remedies, to
remove, tow or physically incapacitate the vehicle involved at Xxxxxx's
cost and expense, payable immediately upon demand.
b. Changes by Landlord. Landlord reserves the right in its sole discretion
to change or alter the parking, its layout or access thereto, and to
restrict, expand or reduce the number or size of the parking spaces.
c. Waiver and Release. The right to park granted hereunder is solely for
the convenience and accommodation of Tenant, and does not constitute a
bailment or create the relationship of xxxxxx and bailee. Tenant waives
and releases Landlord from any responsibility or liability for loss or
damage to any person or property respecting use of the parking by
Tenant, its employees or invitees.
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 13
17
39. MISCELLANEOUS
a. Accord and Satisfaction; Allocation of Payments. No payment by Tenant
or receipt by Landlord of a lesser amount than the Rent provided for in
this Lease shall be deemed to be other than on account of the earliest
Rent due, nor shall any endorsement or statement on any check or letter
accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of the Rent or
pursue any other remedy provided for in this Lease. In connection with
the foregoing, Landlord shall have the absolute right in its sole
discretion to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
b. Addenda. If any provision contained in a Rider to this Lease is
inconsistent with any other provision herein, the provision contained
in the Rider shall control, unless otherwise provided in the Rider.
c. Attorneys' Fees. If any action or proceeding is brought by either party
against the other pertaining to or arising out of this Lease, the
finally prevailing party shall be entitled to recover all costs and
expenses, including reasonable attorneys' fees, incurred on account of
such action or proceeding. For purposes of the foregoing sentence, the
"finally prevailing party" shall be deemed to be the party which, upon
resolution of the action (whether by voluntary withdrawal, unilateral
action, mutual settlement, dismissal or judgment), has obtained
substantially the relief sought by such party in such action; provided
that, Landlord shall in all events be deemed to be the finally
prevailing party in any action in which Landlord is granted a judgment
for possession of the Premises. In all events the finally prevailing
party shall be entitled to recover one hundred percent (100%) of its
legal fees incurred in such action, notwithstanding that such party has
not prevailed on one hundred percent (100%) of its claims in such
action.
d. Captions, Articles and Section Numbers. The captions appearing within
the body of this Lease have been inserted as a matter of convenience
and for reference only and in no way define, limit or enlarge the scope
or meaning of this Lease. All references to Article and Section numbers
refer to Articles and Sections in this Lease.
e. Changes Requested by Xxxxxx. Neither Landlord nor Tenant shall
unreasonably withhold its consent to changes or amendments to this
Lease requested by the lender on Landlord's interest, so long as these
changes do not alter the basic business terms of this Lease or
otherwise materially diminish any rights or materially increase any
obligations of the party from whom consent to such change or amendment
is requested.
f. Choice of Law. This Lease shall be construed and enforced in accordance
with the laws of the Commonwealth of Virginia, without regard to the
conflict of Laws principles thereof.
g. Consent. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall have no claim, and hereby waives the right to
any claim against Landlord for money damages by reason of any refusal,
withholding or delaying by Landlord of any consent, approval or
statement of satisfaction, and in such event, Xxxxxx's only remedies
therefor shall be an action for specific performance, injunction or
declaratory judgment to enforce any right to such consent, etc.
Additionally, unless otherwise specifically provided herein, Landlord
may grant or refuse its consent to any item in its sole discretion.
h. Authority. If Tenant is a corporation or partnership, each individual
signing this Lease on behalf of Tenant represents and warrants that he
is duly authorized to execute and deliver this Lease on behalf of the
corporation, and that this Lease is binding on Tenant in accordance
with its terms. Tenant shall, at Xxxxxxxx's request, deliver a
certified copy of a resolution of its board of directors authorizing
such execution.
i. Counterparts. This Lease may be executed in multiple counterparts, all
of which shall constitute one and the same Lease.
j. Execution of Lease; No Option. The submission of this Lease to Tenant
shall be for examination purposes only, and does not and shall not
constitute a reservation of or option for Tenant to lease, or otherwise
create any interest of Tenant in the Premises or any other premises
within the Building or Project. Execution of this Lease by Tenant and
its return to Landlord shall not be binding on Landlord notwithstanding
any time interval, until Landlord has in fact signed and delivered this
Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's Representations. In order
to induce Xxxxxxxx to enter into this Lease, Xxxxxx agrees that it
shall promptly furnish Landlord, from time to time, upon Xxxxxxxx's
written request, Xxxxxx's audited annual report(s) unless Tenant is in
default of this Lease, in which event Tenant shall furnish Landlord
with financial statements reflecting Xxxxxx's current financial
condition. Tenant represents and warrants that all financial
statements, records and information furnished by Tenant to Landlord in
connection with this Lease are true, correct and complete in all
respects.
l. Further Assurances. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
m. Mortgagee Protection. Xxxxxx agrees to send by certified or registered
mail to any mortgagee or deed of trust beneficiary of Landlord whose
address has been furnished to Tenant, a copy of any notice of default
served by Tenant on Landlord. If Landlord fails to cure such default
within the time provided for in this Lease, such mortgagee or
beneficiary shall have an additional thirty (30) days to cure such
default; provided that if such default cannot reasonably be cured
within that thirty (30) day period, then such mortgagee or beneficiary
shall have such additional time to cure the default as is reasonably
necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the agreements
of the parties with respect to any matter covered or mentioned in this
Lease, and no prior agreement or understanding pertaining to any such
matter shall be effective for any purpose. No provisions of this Lease
may be amended or added to except by an agreement in writing signed by
the parties of their respective successors in interest.
o. Recording. Tenant shall not record this Lease without the prior written
consent of Landlord. Tenant, upon the request of Xxxxxxxx, shall
execute and acknowledge a "short form" memorandum of this Lease for
recording purposes.
p. Severability. A final determination by a court of competent
jurisdiction that any provision of this Lease is invalid shall not
affect the validity of any other provision, and any provision so
determined to be invalid shall, to the extent possible, be construed to
accomplish its intended effect. In the event that any material
provision (or any material part of any provision) contained in this
Lease shall for any reason be held to be invalid, unlawful or
unenforceable in any respect, Landlord and Tenant shall, at Landlord's
election, amend this Lease so as to render every provision hereby fully
valid, lawful and enforceable in all respect, and so as to result in a
revised lease with equivalent economic and legal substance as if no
provision or portion of this Lease had been declared invalid, unlawful
or unenforceable.
q. Successors and Assigns. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the
parties.
r. Time of the Essence. Time is of the essence of the Lease.
s. Waiver. No delay or omission in the exercise of any right or remedy of
Landlord upon any default by Tenant shall impair such right or remedy
to be construed as a waiver of such default.
The receipt and acceptance by Landlord of delinquent Rent shall not
constitute a waiver of any default.
Landlord /s/ XX Xxxxxx /s/ PF
------- ------
Page 14
18
No act or conduct of Landlord, including, without limitation, the
acceptance of keys to the Premises, shall constitute an acceptance of
the surrender of the Premises by Tenant before the expiration of the
Term. Only a written notice from Landlord to Tenant shall constitute
acceptance of the surrender of the Premises and accomplish a
termination of the Lease.
Xxxxxxxx's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by
Xxxxxx.
Any waiver by Landlord of any default must be in writing and shall not
be a waiver of any other default concerning the same or any other
provision of the Lease.
40. TRAFFIC CONTROL
Pursuant to Statement of Conditions FDP 82-C-056 imposed by the County
of Fairfax, Xxxxxx agrees as follows:
a. Tenant will engage in a program which will encourage ride-sharing and
other measures designed to reduce peak-hour traffic generated by the
development. Included within such provisions will be the following
options:
1. That the Tenant establish, either individually or in common with other
tenants within the development, a formal ride-sharing program whereby
an employee(s) will be designated as a car-pool coordinator to work
with fellow employees and the Fairfax County ride-sharing coordinator
to actively encourage employees to participate in ride-sharing. Also,
that Tenant provide distribution of public transit information.
2. That Tenant give consideration to active participation in the
establishment and maintenance of a vanpooling program for its
employees.
3. That Tenant give consideration to establishing and maintaining a system
of flexible or staggered work hours.
41. WAIVER OF JURY TRIAL; WAIVER OF COUNTERCLAIMS
IN CONSIDERATION OF THE RECIPROCAL WAIVER GRANTED BY THE OTHER PARTY
PURSUANT TO THIS ARTICLE 41, EACH OF LANDLORD AND TENANT HEREBY (I)
COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE
OF RIGHT BY A JURY, AND (II) WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO
THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST, WITH
RESPECT TO EACH AND EVERY ACTION, CLAIM, COUNTERCLAIM, PROCEEDING OR
SUIT IN WHICH LANDLORD AND TENANT ARE ADVERSE PARTIES OR TAKE ADVERSE
POSITIONS. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN,
KNOWINGLY AND VOLUNTARILY, AND THIS WAIVER IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
JURY TRIAL WOULD OTHERWISE ACCRUE, INCLUDING, BUT NOT LIMITED TO, ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER LANDLORD OR TENANT
ON, OR IN RESPECT OF, ANY MATTER OR CLAIM WHATSOEVER, WHETHER SOUNDING
IN TORT OR CONTRACT, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE
PREMISES OR THIS LEASE (INCLUDING, BUT NOT LIMITED TO, ANY CHALLENGE TO
THE VALIDITY AND/OR EFFECTIVENESS OF THE LEASE IN WHICH THIS JURY TRIAL
WAIVER APPEARS OR TO THE VALIDITY OR EFFECTIVENESS OF THIS JURY TRIAL
WAIVER, WHETHER BY CLAIM OR FRAUD IN THE FACTUM OR IN THE INDUCEMENT,
INTENTIONAL OR NEGLIGENT MISREPRESENTATION, DECEIT, OR OTHERWISE), THE
RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER, TENANT'S USE OR
OCCUPANCY OF THE PREMISES AND/OR ANY CLAIM OF PERSONAL OR PROPERTY
INJURY OR DAMAGE, OR ANY STATUTORY REMEDY. EACH PARTY HERETO IS HEREBY
AUTHORIZED AND REQUESTED TO SUBMIT THIS LEASE PROVISION TO ANY COURT
HAVING JURISDICTION OVER THE SUBJECT MATTER AND THE PARTIES HERETO, AS
TO SERVE AS CONCLUSIVE EVIDENCE OF THE HEREIN CONTAINED WAIVER OF THE
RIGHT TO JURY TRIAL. FURTHER, EACH OF LANDLORD AND TENANT HEREBY
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE OTHER PARTY HERETO
(NOR THEIR RESPECTIVE COUNSEL) HAS REPRESENTED TO THE OTHER, EXPRESSLY
OR OTHERWISE, THAT SUCH PARTY WILL NOT SEEK TO ENFORCE THIS WAIVER OF
RIGHT TO JURY TRIAL PROVISION. BY INITIALING WHERE INDICATED BELOW,
LANDLORD AND TENANT EACH ACKNOWLEDGE THAT (I) THEY ARE FULLY AWARE OF
THE EXISTENCE OF THIS JURY TRIAL WAIVER, (II) THEY HAVE READ AND FULLY
REVIEWED THIS JURY TRIAL WAIVER, (III) THEY HAVE HAD A REASONABLE
OPPORTUNITY TO REVIEW THIS JURY TRIAL WAIVER WITH COUNSEL OF THEIR
RESPECTIVE CHOICE, AND (IV) THIS JURY TRIAL WAIVER CONSTITUTES AN
INDEPENDENT AGREEMENT AND COVENANT OF LANDLORD AND TENANT WHICH SHALL
SURVIVE (A) THE INVALIDATION OF ALL OR ANY PORTION OF THE REMAINDER OF
THE DEED OF LEASE IN WHICH THIS JURY TRIAL WAIVER APPEARS, OR (B) THE
EXPIRATION OR SOONER TERMINATION OF THE DEED OF LEASE IN WHICH THIS
JURY TRIAL WAIVER APPEARS.
TENANT'S INITIALS /s/ PF LANDLORD'S INITIALS /s/ JF
------------------- -------------------
TENANT FURTHER AGREES NOT TO INSTITUTE, ASSERT, RAISE OR INTERPOSE ANY
NON-COMPULSORY CLAIM, DEFENSE OR COUNTERCLAIM IN ANY ACTION OR
PROCEEDING INSTITUTED BY LANDLORD TO RECOVER POSSESSION OF THE PREMISES
OR TO COLLECT RENT DUE HEREUNDER. TENANT HEREBY REPRESENTS AND
ACKNOWLEDGES THAT NEITHER LANDLORD, NOR ANY AGENT OF LANDLORD
(INCLUDING LANDLORD'S ATTORNEYS), HAS REPRESENTED OR OTHERWISE
INDICATED THAT LANDLORD WILL NOT SEEK TO ENFORCE THIS WAIVER OF
NON-COMPULSORY COUNTERCLAIMS UNDER ANY CIRCUMSTANCES WHATSOEVER.
42. FIRST OPPORTUNITY TO LEASE ADDITIONAL SPACE.
a. Provided Tenant is not in default and has performed all of its
obligations hereunder, Tenant shall have the first opportunity to lease
such other space located in Suites 501 on the fifth floor of the
Building as it becomes available for leasing ("First Opportunity") for
a term coterminous with this Lease at the following rental rates:
Period Rentable Per Sq. Ft. Per Yr. Rental Rate
------ ----------------------------------------
October 1, 1996 through and including September 30, 1997 $17.00
October 1, 1997 through and including September 30, 1998 $17.51
October 1, 1998 through and including September 30, 1999 $18.04
October 1, 1999 through and including September 30, 2000 $18.58
October 1, 2000 through and including September 30, 2001 $19.13
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 15
19
b. Landlord will provide Tenant an improvement allowance only for the
construction of building standard tenant improvements within the
additional space leased in an amount calculated using the following
formula:
$7.00 x Usable Square Feet x Number of months prior to July 31, 2001,
beginning the next month of additional
space after Landlord notifies Tenant
that the additional space is available
for lease.
c. Upon notification in writing by Landlord that such space is available,
Tenant shall have ten (10) business days in which to elect in writing
so to lease such space, in which event the lease for same shall
commence not more than thirty (30) days after such space becomes vacant
and shall be coterminous with this Lease.
d. In the event Tenant declines or fails to elect so to lease such space,
then the first Opportunity hereby granted shall automatically terminate
and shall thereafter be null and void as to such space.
e. It is understood that this First Opportunity shall not be construed to
prevent any lessee in the Building from extending or renewing its
lease.
f. The First Opportunity hereby granted is personal to TCSI Corporation, a
Nevada corporation, and is not transferable; in the event of any
assignment or subletting under this Lease, the First Opportunity shall
automatically terminate and shall thereafter be null and void.
The parties hereto have executed this Lease as of the dates set forth below.
TENANT LANDLORD
TCSI Corporation, a Nevada COW HOLDINGS LIMITED, a Delaware
corporation corporation
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------- --------------------------------
Its: CFO Its: Assistant Secretary
------------------------------ -------------------------------
Date: 8/6/96 Date: August 14, 1996
----------------------------- ------------------------------
By:
--------------------------
Its:
-------------------------
Date:
------------------------
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 16
20
EXHIBIT "A"
To Lease dated July 25, 1996
by and between
COW HOLDINGS LIMITED, a Delaware corporation, as Landlord, and
TCSI Corporation, a Nevada corporation, as Tenant
FLOOR PLAN
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 17
21
EXHIBIT "B"
To Lease dated July 25, 1996
by and between
COW HOLDINGS LIMITED, a Delaware corporation, as Landlord, and
TCSI Corporation, a Nevada corporation, as Tenant
SITE PLAN
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 18
22
EXHIBIT "C"
To Lease dated July 25, 1996
by and between
COW HOLDINGS LIMITED, a Delaware corporation, as Landlord, and
TCSI Corporation, a Nevada corporation, as Tenant
WORK LETTER
1. APPLICATION OF WORK LETTER
Capitalized terms used and not otherwise defined herein shall have the same
definitions as set forth in this Lease. The provisions of this Work Letter shall
apply to the planning and completion of leasehold improvements requested by
Xxxxxx (the "Tenant Improvements") for the fitting out of the Premises, as more
fully set forth herein.
2. LANDLORD AND TENANT PRE-CONSTRUCTION OBLIGATIONS
a) Preliminary Space Plans. Within ten (10) days following full execution of
this Lease by both Landlord and Tenant, Landlord's Architect shall prepare
preliminary space plans for the Tenant Improvements (the "Preliminary Plans")
which shall include, without limitation, sketches and/or drawings showing the
location of doors, partitioning, electrical fixtures, outlets and switches,
plumbing fixtures, and other requirements mutually agreed upon by Landlord and
Tenant as required for Tenant's use of the Premises. Tenant agrees to and shall
promptly and fully cooperate with Landlord's Architect and shall supply all
information Landlord's Architect deems necessary for the preparation of the
Preliminary Space Plans. Tenant acknowledges that the Preliminary Space Plans
shall be prepared by Xxxxxxxx's Architect after consultation and cooperation
between Tenant and Landlord's Architect regarding the proposed Tenant
Improvements and Xxxxxx's requirements. The costs associated with preparation of
the Preliminary Space Plans shall be borne by Tenant and paid as set forth in
Sections 5 and 6 of this Work Letter.
b) Work Drawings. Within twenty (20) days following full execution of this
Lease by both Landlord and Xxxxxx, Xxxxxxxx's Architect shall prepare working
drawings (the "Workings Drawings") for the Tenant Improvements based upon the
approved Preliminary Space Plans. The Working Drawings shall include
architectural, mechanical and electrical drawings for the Tenant Improvements
based on the Preliminary Space Plans. Notwithstanding the Preliminary Space
Plans, in all cases the Working Drawings (i) shall be subject to Landlord's
final approval, which approval shall not be unreasonably withheld, (ii) shall
not be in conflict with building codes for the city or county within which the
Building is located or with insurance requirements for a fire resistive Class A
building, and (iii) shall be in a form satisfactory to appropriate governmental
authorities responsible for issuing permits and licenses required for
construction. The costs associated with preparation of the Working Drawings
shall be borne by Xxxxxx and paid as set forth in Sections 5 and 6 of this Work
Letter.
c) Approval of Working Drawings. Landlord or Landlord's Architect shall
submit the Working Drawings to Tenant for Tenant's review and Tenant shall
notify Landlord and Landlord's Architect within three (3) business days after
delivery thereof of any requested revisions. Within three (3) business days
after receipt of Tenant's notice, Xxxxxxxx's Architect shall make all approved
revisions to the Working Drawings and submit two (2) copies thereof to Tenant
for its final review and approval, which approval shall be given within two (2)
business days thereafter. Concurrently with the above review and approval
process, Landlord may submit all plans and specifications to city and/or other
applicable governmental agencies in an attempt to expedite city approval and
issuance of all necessary permits and Licenses to construct the Tenant
Improvements as shown on the Working Drawings. Any changes which are required by
city or other governmental agencies shall be immediately submitted to Landlord
for Landlord's review and reasonable approval, and Landlord shall promptly
notify Tenant of such changes.
d) Schedule of Critical Dates. set forth below is a schedule of certain
critical dates relating to Landlord's and Xxxxxx's respective obligations for
the design and construction of the Tenant Improvements. Such dates and the
respective obligations of Landlord and Tenant are more fully described elsewhere
in this Work Letter. The purpose of the following schedule is to provide a
reference for Landlord and Tenant and to make certain the Final Approval Date
occurs as set forth herein. Following the Final Approval Date, Tenant shall be
deemed to have released Landlord to commence construction of the Tenant
Improvements as set forth in Section 4 below.
Reference Date Due Responsible Party
--------- -------- -----------------
A. "Preliminary Space Ten (10) days after full Tenant & Landlord
Plan Approval" execution of this Lease
B. "Working Drawings Twenty (20) days after full Landlord
Completion" execution of this Lease
C. "Working Drawings Three (3) business days after Tenant
Review" Landlord submits the Working
Drawings to Tenant
D. "Working Drawings Three (3) business days after Landlord
Revisions" Tenant returns the Working
Drawings to Landlord
E. "Final Approval Two (2) business days after Tenant
Date" Landlord submits the revised
Working Drawings to Tenant
Landlord /s/ XX Xxxxxx /s/ PF
------ ------
Page 19
23
3. BUILDING PERMIT
After the Final Approval Date has occurred, Landlord shall, if Landlord has
not already done so, submit the Working Drawings to the appropriate governmental
body or bodies for final plan checking and a building permit. Landlord, with
Xxxxxx's cooperation, shall cause to be made any change in the Working Drawings
necessary to obtain the building permit; provided, however, after the Final
Approval Date, no changes shall be made to the Working Drawings without the
prior written approval of both Landlord and Tenant, and then only after
agreement by Tenant to pay any excess costs resulting from such changes.
4. CONSTRUCTION OF TENANT IMPROVEMENTS
After the Final Approval Date has occurred and a building permit for the
work has been issued, Landlord shall, through a guaranteed maximum cost or fixed
price (at Landlord's sole option) construction contract ("Construction
Contract") with a reputable, licensed contractor selected by Landlord
("Contractor"), cause the construction of the Tenant Improvements to be carried
out in substantial conformance with the Working Drawings in a good and
workmanlike manner using first-class materials. The costs associated with the
construction of the Tenant Improvements shall be paid as set forth in Section 5
and 6 of this Work Letter. Landlord shall see that the construction complies
with all applicable building, fire, health, and sanitary codes and regulations,
the satisfaction of which shall be evidenced by a certificate of occupancy for
the Premises.
5. TENANT IMPROVEMENT ALLOWANCE
Landlord shall provide Tenant with a Tenant Improvement Allowance in the
amount of Eighty-Two Thousand Nine Hundred One and 00/100 Dollars ($82,901.00)
towards the cost of the design, purchase and construction of the Tenant
Improvements, including without limitation design, engineering and consulting
fees (collectively, the "Tenant Improvements Costs"). The Tenant Improvement
Allowance shall be used for payment of the following Tenant Improvements Costs:
(i) Preparation of the Preliminary Space Plans and the Working Drawings
as provided in Section 2 of this Work Letter, including without limitation all
fees charged by the city or other governmental agencies (including without
limitation fees for building permits and plan checks) in connection with the
Tenant Improvements work in the Premises;
(ii) Construction work for completion of the Tenant Improvements as
reflected in the Construction Contract;
(iii) All contractor's charges, general conditions, performance bond
premiums and construction management fees.
6. COSTS IN EXCESS OF TENANT IMPROVEMENT ALLOWANCE AT TENANT'S EXPENSE
(a) Cost Approval. Tenant shall pay the excess of the Tenant Improvements
Costs over the amount of the Tenant Improvement Allowance available to defray
such costs. Concurrent with the plan checking referred to in Section 3 of this
Work Letter, Landlord shall prepare and submit to Tenant a written estimate of
the amount of the Tenant Improvements Costs and the amount of the Tenant
Improvement Allowance available to defray such costs (after preparation of the
Preliminary Space Plans and Working Drawings). Tenant shall approve or
disapprove any such estimate by written notice to Landlord within three (3)
business days after receipt thereof. If Tenant fails to notify Landlord of its
disapproval within such three (3) business day period, Tenant shall be deemed to
have approved such estimate. If such estimate exceeds the Tenant Improvement
Allowance then still available and Tenant approves such estimate, Tenant's
notice of approval shall include payment to Landlord for the full amount of such
excess. If Tenant disapproves such estimate within the three (3) business day
period, Tenant shall be required to direct Landlord and Landlord's Architect to
amend the Working Drawings in a manner satisfactory to Landlord so as to reduce
the estimated costs to an amount acceptable to Tenant, and any excess estimated
costs remaining after such amendment shall be paid by Tenant in the manner
described in the preceding sentence. Tenant shall additionally pay any costs
resulting from such amendment and Tenant shall be liable for the delay in
completing the Tenant Improvements and the increased costs, if any, resulting
from such delay. If Tenant is unwilling or unable to amend the Working Drawings
in a manner acceptable to Landlord, then Tenant shall be deemed to have approved
of the estimate for the Working Drawings as prepared, and shall pay in full the
amount of any excess estimated costs together with any costs arising from delay
as a result of Xxxxxx's action hereunder, in the manner hereinabove provided.
(b) Final Costs. Within sixty (60) days after completion by Landlord of the
Tenant Improvements, Landlord shall determine the actual final Tenant
Improvements Costs and shall submit a written statement of such amount to
Tenant. If any estimate previously paid by Xxxxxx exceeds the amount due
hereunder from Tenant for such work, such excess shall be refunded to Tenant. If
any amount is still due from Tenant for such work, then Tenant shall pay such
amount in full within ten (10) days after receipt of Landlord's statement.
7. CHANGE ORDERS
Tenant may from time to time request and obtain change orders during the
course of construction provided that: (i) each such request shall be reasonable,
shall be in writing and signed by or on behalf of Tenant, and shall not result
in any structural change in the Building, as reasonably determined by
Landlord, (ii) all additional charges and costs, including without limitation
architectural and engineering costs, construction and material costs, and
processing costs of any governmental entity shall be the exclusive obligation of
Tenant, and (iii) any resulting delay in the completion of the Tenant
Improvements shall be deemed a Tenant Delay and in no event shall extend the
Commencement Date. Upon Xxxxxx's request for a change order, Landlord shall as
soon as reasonably possible submit to Tenant a written estimate of the increased
or decreased cost and anticipated delay, if any, attributable to such requested
change. Within three (3) days of the date of such estimated cost adjustment and
delay are delivered to Tenant, Tenant shall advise Landlord whether it wishes to
proceed with the change order, and if Tenant elects to proceed with the change
order, Tenant shall remit, concurrently with Xxxxxx's notice to proceed, the
amount of the increased cost, if any, attributable to such change order.
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 20
24
Unless Tenant includes in its initial change order request that the work in
process at the time such request is made to be halted pending approval and
execution of a change order, Landlord shall not be obligated to stop
construction of the Tenant Improvements, whether or not the change order relates
to the work then in process or about to be started.
8. TENANT DELAYS
In no event shall the Commencement Date be extended or delayed due or
attributable to delays due to the fault of Tenant ("Tenant Delays"). Tenant
Delays shall include, but are not limited to, delays caused by or resulting from
any one or more of the following:
a) Xxxxxx's failure to timely review and reasonably approve the Working
Drawings or to promptly cooperate with Landlord's Architect and furnish
information to Landlord for the preparation of the Preliminary Space Plans and
Working Drawings;
b) Tenant's request for or use of special materials, finishes or
installations which are not readily available, provided that Landlord shall
notify Tenant that the particular material, finish, or installation is not
readily available promptly upon Xxxxxxxx's discovery of same;
c) Change orders requested by Xxxxxx;
d) Interference by Xxxxxx or by Xxxxxx's Agents with Xxxxxxxx's
construction activities;
e) Tenant's failure to approve any other item or perform any other
obligation in accordance with any by the dates specified herein or in the
Construction Contract;
f) Xxxxxx's requested changes in the Preliminary Space Plans, Working
Drawings or any other plans and specifications after the approval thereof by
Tenant or submission thereof by Tenant to Landlord;
g) Xxxxxx's failure to approve written estimates of costs in accordance
with this Work Letter; and
h) Xxxxxx's obtaining or failure to obtain any necessary governmental
approvals or permits for Tenant's intended use of the Premises.
If the Commencement Date is delayed by any Tenant delays, whether or not within
the control of Tenant, then the Commencement Date and the payment of Rent shall
be accelerated by the number of days of such delay. Landlord shall give tenant
written notice within a reasonable time of any circumstance that Landlord
believes constitute a Tenant Delay.
9. TRADE FIXTURES AND EQUIPMENT
Xxxxxx acknowledges and agrees that Xxxxxx is solely responsible for
obtaining, delivering and installing in the Premises all necessary and desired
furniture, trade fixtures, equipment and other similar items, and that Landlord
shall have no responsibility whatsoever with regard thereto. Tenant further
acknowledges and agrees that neither the Commencement Date nor the payment of
Base Rent shall be delayed for any period of time whatsoever due to any delay in
the furnishing of the Premises with such items.
10. FAILURE OF TENANT TO COMPLY
Any failure of Tenant to comply with any of the provisions contained in this
Work Letter within the times for compliance herein set forth shall be deemed a
default under this Lease. In addition to the remedies provided to Landlord in
this Work Letter upon the occurrence of such a default by Tenant, Landlord shall
have all remedies available at law or equity to a landlord against a defaulting
tenant pursuant to a written lease, including but not limited to those set forth
in this Lease.
Landlord /s/ XX Xxxxxx /s/ PF
------ ------
Page 21
25
EXHIBIT "D"
To Lease dated July 25, 1996
by and between
COW HOLDINGS LIMITED, a Delaware corporation, as Landlord, and
TCSI Corporation, a Nevada corporation, as Tenant
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, concourses, ramps, courts, vestibules,
stairways, corridors, or halls shall not be obstructed or used by Tenant or
the employees, agents, servants, visitors or business of Tenant for any
purpose other than ingress and egress to and from the Premises for delivery
of merchandise and equipment in prompt and efficient manner, using
elevators and passageways designated for delivery by Landlord.
2. No awnings, air conditioning units, fans or other projections shall be
attached to the Building. No curtains, blinds, shades or screens shall be
attached to or hung in or used in connection with, any window or door of
the Premises or Building, without the prior written consent of Landlord.
All electrical fixtures hung in offices or spaces along the perimeter of
the Premises must be fluorescent, of a quality type, design and bulb color
approved by Landlord unless the prior consent of Landlord has been obtained
for other xxxxxxx.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of
the Premises or Building or inside of the Premises if the same can be seen
from the outside of the Premises without the prior written consent of
Landlord. In the event of the violation of the foregoing by Xxxxxx,
Landlord may remove same without any liability, and may charge the expense
incurred by such removal to Tenant. Interior signs on doors and directory
tablet shall be inscribed, painted or affixed for Tenant by Landlord and
shall be of a size, color and style acceptable to Landlord.
4. The exterior windows and doors that reflect or admit light and air into the
Premises or the halls, passageways or other public places in the Building,
shall not be covered or obstructed by Tenant, nor shall any articles be
placed on the windowsills. No showcases or other articles shall be put in
front or affixed to any part of the exterior of the Building, nor placed in
the halls, corridors or vestibules, nor shall any article obstruct any
air-conditioning supply or exhaust without the prior written consent of
Landlord.
5. The electrical and mechanical closets, water and wash closets, drinking
fountains and other plumbing, electrical and mechanical fixtures shall not
be used for any purposes other than those for which they are constructed,
and no sweepings, rubbish, rags, coffee grounds, acids or other substances
shall be deposited therein. All damages resulting from any misuse of the
fixtures shall be borne by the Tenant who, or whose servants, employees,
agents, visitors or licensees, shall have caused the same. No person shall
waste water by interfering or tampering with the faucets or otherwise.
6. Tenant shall not mark, paint, drill into, or in any way deface any part of
the Premises or the Building. No boring, drilling of nails or screws,
cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. Tenant shall not
lay floor tile or other similar floor covering in the Premises, except with
the prior approval of Landlord.
7. No portion of the Premises or the Building shall be used or occupied at any
time for manufacturing, for the storage of merchandise, for the sale of
merchandise, goods or property of any kind at auction or otherwise without
the express consent of Landlord, or as sleeping or lodging quarters.
8. Tenant, Tenant's servants, employees, agents, visitors or licensees, shall
not at any time bring or keep upon the Premises any hazardous waste, toxic,
inflammable, combustible, caustic, poisonous or explosive fluid, chemical
or substance.
9. No bicycles, vehicles, or animals of any kind (other than a seeing eye dog
for a blind person), shall be brought into or kept by Tenant in or about
the Premises or the Building.
10. Tenant shall not use or occupy or permit any portion of the Premises to be
used or occupied as an office for offset printing or the possession,
storage, manufacture, sale of liquor or narcotics, or as a xxxxxx or
manicure shop, a labor office, a doctor's or dentist's office, a dance or
music studio, any type of school, or for any use other than those
specifically granted in the Lease and with the express consent of the
Landlord. Tenant shall not engage or pay any employees on the Premises,
except those actually working for such Xxxxxx on said Premises.
11. Landlord shall have the right to prohibit any advertising by Tenant which,
in Xxxxxxxx's opinion, tends to impair the reputation of the Building or
Project or its desirability as a building for offices, and upon written
notice from Landlord, Tenant shall refrain from or discontinue such
advertising. In no event shall Tenant, without the prior written consent
of Landlord, use the name of the Building or Project or use pictures or
illustrations of the Building or Project.
12. Any person in the Building will be subject to identification by employees
and agents of Landlord. All persons in or entering Building shall be
required to comply with the security policies of the Building. Tenant shall
keep doors to unattended areas locked and shall otherwise exercise
reasonable precautions to protect property from theft, loss or damage.
Landlord shall not be responsible for the theft, loss or damage of any
property.
13. No additional locks or bolts of any kind shall be placed on any door in the
Building or the Premises and no lock on any door therein shall be changed
or altered in any respect without the consent of the Landlord. Landlord
shall furnish two keys for each lock on exterior doors to the Premises and
shall, on Tenant's request and at Tenant's expense, provide additional
duplicate keys. All keys, either furnished to, or otherwise procured by
Tenant, shall be returned to Landlord upon termination of this Lease.
Landlord may at all times keep a pass key to the Premises. All entrance
doors to the Premises shall be left closed at all times, and left locked
when the Premises are not in use. Tenant shall not copy any keys.
14. Tenant shall give immediate notice to Landlord in case of theft,
unauthorized solicitation or accident in the Premises or in the Building or
of defects therein or in any fixtures or equipment, or of any known
emergency in the Building.
15. Tenant shall not use the Premises or permit the Premises to be used for
photographic, multilith or multigraph reproductions, except in connection
with its own business and not as a service for others, without Xxxxxxxx's
prior permission.
16. No freight, furniture or bulky matter of any description will be received
into the Building or Project except in such manner, during such hours and
using such passageways as may be approved by Landlord, and then only upon
having been scheduled at least two (2) working days prior to the date on
which such service is required. Any hand trucks, carryalls, or similar
appliances suited for the delivery or receipt of merchandise or equipment
shall be equipped with rubber tires, side guards and such other safeguards
as Landlord shall require.
17. Tenants, or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time place, leave or discard any rubbish, paper
articles, or objects of any kind whatsoever outside the doors of the
Premises or in the corridors or passageways of the Building or Project.
18. Tenant shall not make excessive noises, cause disturbances or vibrations or
use or operate any electrical or mechanical devices that emit excessive
sound or other waves or disturbances or create obnoxious odors, any of
which may be offensive to the other tenants and occupants of the Building
or Project, or that would interfere with the operation of any device,
equipment, radio, television broadcasting or reception from
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 22
26
or within the Building or elsewhere and shall not place or install any
projections, antennas, aerials or similar devices inside or outside of the
Premises or on the Building without Landlord's prior written approval.
19. Tenant shall comply with all applicable federal, state and municipal laws,
ordinances and regulations, and building rules and shall not directly or
indirectly make any use of the Premises which may be prohibited by any of
the foregoing or which may be dangerous to persons or property or may
increase the cost of insurance or require additional insurance coverage.
20. Tenant, its servants, employees, customers, invitees and guests shall, when
using the parking facilities in and around the Building observe and obey
all signs regarding fire lanes, no parking zones, visitor parking and
handicapped zones, and when parking, always park between designated lines.
Landlord reserves the right to tow away, at the expense of the owners, any
vehicle which is improperly parked or parked in a "No Parking" zone. All
vehicles shall be parked at the sole risk of the owners, and Landlord
assumes no responsibilities for any damage or loss of vehicles. There shall
be no overnight parking of any kind, without Landlord's prior written
consent, which consent may be granted or withheld at Landlord's sole
discretion.
21. Tenant shall not serve, nor permit the serving of alcoholic beverages in
the Premises unless Tenant shall have procured Host Liquor Liability
Insurance, issued by companies and in amounts reasonably satisfactory to
Landlord, naming Landlord as an additional party insured.
22. The requirements of Tenant will be attended to only upon written
application at the office of the Building. Employees shall not perform any
work or do anything outside of the regular duties unless under special
instructions from the office of Landlord.
23. Canvassing, soliciting and peddling in the Building or Project is
prohibited and Tenant shall cooperate to prevent the same.
24. Except as otherwise explicitly permitted in its lease, Tenant shall not do
any cooking, conduct any restaurant, luncheonette or cafeteria for the sale
or service of food or beverages to its employees or to others, install or
permit the installation or use of any food, beverage, cigarette, cigar or
stamp dispensing machine or permit the delivery of any food or beverage to
the Premises, except by such persons delivering the same as shall be
approved by Landlord.
25. Tenant shall at all times keep the Premises neat and orderly.
26. The regular business hours of the Building shall be between 7:00 a.m. to
6:00 p.m., Monday through Friday, and 8:00 a.m. to 1:00 p.m. on Saturdays.
The Building shall be closed to the public on Sundays, and on New Year's
Day, President's Day, Memorial Day, Independence Day, Labor Day, the
Thanksgiving holiday and Christmas, and such other federal or state
holidays as Landlord shall elect by notice to the Tenants.
Page 23
Landlord /s/ XX Xxxxxx /s/ PF
------ ------
27
EXHIBIT " E"
To Lease dated July 25, 1996
by and between
COW HOLDINGS LIMITED, a Delaware corporation, as Landlord, and
TCSI Corporation, a Nevada corporation, as Tenant
AMENDMENT NO.1
THIS AMENDMENT NO.1 ("Amendment") made as of the _ day of , 199_, by and between
COW HOLDINGS LIMITED, a Delaware corporation ("Landlord"), and TCSI Corporation,
a Nevada corporation, ("Tenant"),
RECITALS
X. Xxxxxxxx and Xxxxxx entered into that certain Deed of Lease dated , 19
[,as amended,] ([collectively,] the "Lease" ).
B, Pursuant to Section 5.2 of the Lease, Tenant is obligated to pay
Landlord for each Comparison Year the Tenant's Proportionate Share of the excess
of the Project Operating Costs above the Project Operating Costs for the Base
Year.
X. Xxxxxxxx and Tenant desire to amend the Lease to evidence the amount of
the Project Operating Costs for the Base Year.
NOW, THEREFORE, in consideration of the sum of Ten Dollars (S10.00) cash in
hand paid and other good and valuable consideration, the receipt and Efficiency
of which are hereby acknowledged, Landlord and Tenant hereby agree to amend the
Lease as follows:
1. Recitals. The foregoing recitals are true and correct and are herein
incorporated by this reference.
2. Project Operating Costs. Landlord and Tenant hereby agree that, for all
purposes of the Lease, the phrase "Project Operating Costs for the Base Year"
and similar phrases shall mean the sum of Dollars ($ ), which amount
Landlord and Tenant further agree represents the actual Project Operating Costs
incurred in calendar year .
3. Interpretation. Except as otherwise provided herein, all terms and
phrases herein shall have the same meaning as set forth in the Lease.
4. Confirmation. Except as otherwise expressly modified by the terms of
this Amendment, the Lease shall remain unchanged and in full force and effect.
Nothing herein contained shall be deemed to waive Tenant's obligation to pay
sums due Landlord from Tenant as of the date hereof. Tenant acknowledges that
Landlord is not in default in the performance of any of its obligations under
the Lease and that Tenant has no claims or setoffs of any kind against Landlord.
IN WITNESS WHEREOF, Landlord and Xxxxxx have caused this Lease Amendment to
be executed as of the day and year first above-written by their duly authorized
officers, intending to be legally bound hereby.
LANDLORD:
COW HOLDINGS LIMITED, a Delaware corporation
By:___________________________________________
Name:_________________________________________
Its:__________________________________________
[Corporate Seal]
TENANT:
By:___________________________________________
Name:_________________________________________
Its:__________________________________________
[Corporate Seal]
By:___________________________________________
Name:_________________________________________
Its:__________________________________________
Landlord /s/ XX Xxxxxx /s/ PF
------ ------
Page 24
28
RIDER TO LEASE
DATED JULY 25, 1996
BY AND BETWEEN
COW HOLDINGS LIMITED, A DELAWARE CORPORATION, AS LANDLORD
AND
TCSI CORPORATION, A NEVADA CORPORATION, AS TENANT
This Rider, dated as of July 25, 1996, is attached to and made part of the above
described Lease. Except as otherwise set forth in this Rider, all terms used in
this Rider shall have the same meaning as when used in the foregoing portion of
the Lease. To the extent of any inconsistencies between the foregoing provisions
of the Lease and the provisions of this Rider, the former are hereby amended.
1. Without limiting the generality of the foregoing, Tenant shall have no
obligation to remediate any condition resulting from the presence of Hazardous
Materials on or about the Premises unless the presence of such Hazardous
Materials was caused by or on behalf of Tenant or its agents, contractors,
employees or representatives. Further, Tenant shall have no obligation to
remediate, correct or repair the Premises to comply with the Americans with
Disabilities Act (the "ADA"), unless the alleged violation of the ADA resulted
from Xxxxxx's use of the Premises or the business conducted thereon or from the
improvements on or about the Premises constructed by or on behalf of Tenant.
Landlord hereby agrees to make all improvements, modifications and alterations
required to be made prior to the Commencement Date in order to comply with XXX.
2. Notwithstanding any provision of the Lease to the contrary, including
without limitation Article 12: a) Tenant may, at the expiration of the term of
the Lease, remove all removable fixtures placed in the Premises by Xxxxxx and
used in connection with Xxxxxx's business, provided Tenant is not in default and
repairs any damage caused by the installation or removal.
3. Except to the extent expressly set forth herein, Landlord shall not be
relieved of any liability of Landlord arising out of or related to Landlord's
breach of this Agreement, or Landlord's negligence or willful misconduct. In
addition, Tenant shall not be required to indemnify Landlord for any losses or
liabilities arising from the conduct of persons other than Tenant or Tenant's
representatives, agents, employees and contractors.
4. Notwithstanding any provision of the Lease to the contrary, including
without limitation Article 19, if, during the term of the Lease the Premises
receive damage, the effect of which is to render the Premises untenantable for
continued occupancy for a period of six (6) months or more, than Tenant may
terminate this Lease upon written notice to Landlord, within ten (10) days after
the expiration of the six (6) month period. If the damage is such that the
Premises will not be untenantable for such period, or if neither party
terminates this Lease as provided in the Lease and/or this Addendum, Landlord
shall with due diligence repair or rebuild, excluding Leasehold Improvements and
Tenant's Property, the Premises to the condition at least equal to that existing
immediately prior to such damage, and the rent called for (including Tenant's
share of Project Operating Costs, if payable) shall be equitably prorated and
abated during the period commencing with the date of the casualty and continuing
until such repairs are completed.
5. Notwithstanding any provision of the Lease to the contrary, including
without limitation Article 10, Xxxxxx's acceptance of the Premises does not
constitute acceptance or waiver of any latent defects therein; and Landlord
agrees, upon discovery of any such latent defects, of which Landlord is notified
within one (1) year of the Commencement Date, promptly to correct the same.
6. Notwithstanding any provision of the Lease to the contrary, including
without limitation Articles 11 and 19, Landlord shall not, in exercising its
right of entry to the Premises or its right to use, repair or modify the common
areas, materially and adversely affect Tenant's use or enjoyment of the
Premises, in any unreasonable manner (i.e. in no event shall Landlord be
required to pay overtime wages).
7. Notwithstanding any provision of the Lease to the contrary, including
without limitation Article 5, the term Project Operating Costs shall not
include:
Landlord /s/ XX Xxxxxx /s/ PF
-------- ------
Page 25
29
(a) Expenses incurred in connection with (i) obtaining financing for the
Premises or any property of which the Premises form a part; (ii) constructing
improvements for Tenant or any other tenant of Landlord; (iii) procuring tenants
(including commissions or legal fees); (iv) the negotiation, amendment, or
termination of any lease (including unlawful detainer actions); or (v)
proceedings against any specific tenant, unless one or more other tenant is
benefited;
(b) Any expenditure to the extent which Landlord has been reimbursed by
insurance, by Tenant or by any third party;
(c) Any depreciation or amortization on the Project;
(d) Expenses in connection with services or other benefits of the type that
Landlord is not obligated to provided to Tenant, but which are provided to other
tenants of the Project;
(e) Costs incurred to due to the violation by Landlord of the terms of any
lease with Landlord affecting the Project to the extent the same would not be
incurred absent the violation.
(f) Overhead and profit increments paid to Affiliates of Landlord, or to
any party as a result of a noncompetitive selection process, for management or
other services with respect to the Project to the extent the cost exceeds the
Fair Market Value of such services, supplies and materials;
(g) Except to the extent expressly set forth herein, interest, principal or
any other payment made with respect to any loans obtained by Landlord or any
ground lease or underlying lease affecting the Project;
(h) Rental incurred in leasing building service equipment ordinarily
considered to be of a capital nature;
(i) Accounting expenses relating to the ownership entity and non-related to
the ownership or operation of the Project;
(j) Any fines or penalties incurred due to violations by Landlord or any
third party of any law;
(k) Any fine and the cost of correcting any violations of law applicable to
the design or construction of the Premises as of the date the building permit is
issued, or any latent defects in the construction of the Premises;
(l) Costs incurred to comply with any law (including ADA) to the extent of
violations which were required to be cured prior to the Commencement Date;
(m) Costs directly resulting from the negligence or intentional misconduct
of Landlord or Landlord's agents to the extent such costs would not have been
incurred absent such negligence or intentional misconduct;
(n) Any cost or expense incurred in connection with the presence or alleged
presence or remediation of any Hazardous Material on the Project not caused by
Tenant or its agents; excluding, however, costs relating to Hazardous Materials
utilized in the course of operating, maintaining or repairing the Building;
(o) Except as otherwise permitted hereunder, the cost of maintenance,
repairs or replacements to any structural parts of the Project.
8. If Tenant disputes such statement, then Tenant may, by written notice
within sixty (60) days after the delivery of the statement to Landlord, refer
the dispute to binding arbitration of the dispute by a nationally recognized,
independent firm of certified public accountants selected by the parties, or if
the parties cannot agree to the selection of such firm, then such firm shall be
appointed by the American Arbitration Association. Any adjustment to any
previous payment of Operating Expenses shall be paid by Landlord or Tenant, as
the case may be, within thirty (30) days after such accountants render their
decision. If the accountants determine that the Landlord's statement overstated
the total Operating Expenses by five (5%) percent or more, then Landlord shall
bear the costs of all fees and expenses of the accountants. Otherwise, the
Tenant shall bear the costs of all fees and expenses of the accountants.
9. Consents. If a court of competent jurisdiction shall determine that one
party unreasonably withheld or delayed such consent in bad faith, then that
party shall be liable to the other party for the foreseeable damages resulting
from such withholding or delay, if any.
Landlord /s/JF Tenant /s/PF
----- -----
Page 26
30
10. Rules and Regulations. Notwithstanding any provision of the Lease to
the contrary:
(a) In the event of any conflict between any new rule or regulation and the
other terms of this Lease, the other terms of this Lease shall prevail.
(b) Xxxxxxxx agrees not to discriminate against the Tenant in the
enforcement of the Rules and Regulations.
(c) The rule or regulation alleged to have been violated was, at the time
of the violation, which Landlord has made generally applicable to all comparable
Tenants in the Project, throughout the Project.
LANDLORD:
COW HOLDINGS LIMITED, a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------
Name: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
Its: Assistant Secretary
--------------------------------------------
[Corporate Seal]
TENANT:
/s/ TCSI
------------------------------------------------
------------------------------------------------
By: /s/ Xxxx Xxxxxx
---------------------------------------------
Name: /s/ Xxxx Xxxxxx
-------------------------------------------
Its: CFO
--------------------------------------------
[Corporate Seal]
By:
---------------------------------------------
Name:
-------------------------------------------
Its:
-------------------------------------------
Page 27
Landlord /s/ XX Xxxxxx /s/ PF
------ -------
