AGREEMENT OF LEASE
THIS LEASE AGREEMENT ("Lease") made as of the 23rd day of July, 2003,
by and between Warsaw Village L.P. ("Landlord") and DCA of Warsaw, LLC
("Tenant").
WITNESSETH:
That in consideration of the rents and covenants herein set forth,
Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord, the
premises (the "Leased Premises") containing approximately 4800 square feet,
as identified on "Exhibit A", a copy of which is attached hereto and made a
part hereof, and located in the shopping center known as the "Warsaw Village"
(the "Center"), which Center is located in the Town of Warsaw, Virginia. The
Leased Premises shall be leased to Tenant with the improvements set forth as
"Landlord's Work" under the terms of the Work Letter attached hereto as
"Exhibit C" and incorporated into this Lease by reference.
Common Facilities
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SECTION 1. In addition to the Leased Premises, Tenant shall have the right
of non-exclusive use, in common with others, of, (a) automobile parking
areas, driveways and footways, and of (b) such loading facilities and other
facilities as may be constructed and designated, from time to time, by
Landlord, all to be subject to the terms and conditions of this Lease
Agreement, and to reasonable rules and regulations for the use thereof as
prescribed from time to time by Landlord. Landlord reserves the right to (i)
renovate the Center including alterations, improvements and changes to the
buildings, their exterior and all common areas, and/or (ii) make such other
changes or revisions to the Center's site plan in Landlord's business
judgment.
Title; Subordination
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SECTION 2. Landlord hereby warrants that Landlord and no other person or
corporation has the right to lease the Leased Premises. Tenant shall have
peaceful and quiet use and possession of the Leased Premises without
hindrance on the part of Landlord, and Landlord shall warrant and defend
Tenant in such peaceful and quiet use and possession against the claims of
all persons, claiming by, through or under Landlord. Tenant's rights under
this Lease Agreement are, however, and shall always be subordinate to the
operation and effect of any superior lease, mortgage, deed of trust or other
security instrument now or hereafter placed upon the Center, or any part or
parts thereof.
Term
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SECTION 3. The initial term (the "Original Term") of this Lease shall be for
a period of seven (7) years commencing six months from the date of this
Agreement (the "Commencement Date"). Tenant is entitled to take possession
of the Leased Premises on August 1, 2003, or as soon thereafter as Landlord
can make ready the space, in accordance with Landlord's Work under the terms
of the Work Letter attached as Exhibit C (the "Possession Date"); provided if
such Landlord's Work is not completed within sixty (60) days of the date of
this Agreement, then the Commencement Date and term shall be extended by the
number of days beyond the sixty (60) days that it takes Landlord to complete
Landlord's Work in accordance with the Work Letter.
Termination
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SECTION 4. This lease and the tenancy hereby created shall cease at the end
of the Original Term hereof, or any extension or renewal thereof pursuant to
Section 48 below or otherwise agreed to in writing by Landlord and
Tenant, without the necessity of any notice from either Landlord or Tenant to
terminate the same, and Tenant hereby waives notice to vacate the Leased
Premises and agrees that Landlord shall be entitled to the benefit of all
provisions of law respecting the summary recovery of possession of premises
from a tenant holding over to the same extent as if statutory notice has been
given. For the period of six (6) months prior to the expiration of the term,
Landlord shall have the right to display on the exterior window of the Leased
Premises (but not in any doorway thereof) the customary sign "For Rent", and
during such period Landlord may show the Leased Premises to prospective
tenants between the hours of 9:00 A.M. and 5:00 P.M. on any day except any
legal holiday on which Tenant shall not be open for business, provided
Landlord gives Tenant reasonable prior written notice and such showing will
not unreasonably interfere with Tenant's operations.
Rents Payable
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SECTION 5. During the Original Term of this Lease, Tenant covenants and
agrees to pay to Landlord as Minimum Rent for the Leased Premises as follows,
plus any prorated Minimum Rent as stated in Section 6:
Years 1 and 2, the Minimum Rent shall be $6.00sf/year, and shall increase by
3% per year through the initial term beginning after the second year, and
thereafter with any renewal or expansions.
Minimum Rents
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SECTION 6. Tenant covenants to pay the Minimum Rent in equal monthly
installments in advance without notice or demand and without offset or
deduction except as provided in this Lease on the first day of each full
calendar month during the term. Monthly Minimum Rent shall be prorated if
this Lease ends other than on the last day of the month. In the event any
Minimum Rent is due but unpaid as of the date this Lease is executed by
Tenant, said amount shall be paid at the time this Lease is presented to
Landlord for execution. All Minimum Rent, Additional Rent and all other
amounts owed by Tenant under this Lease are collectively referred to as
"Rent."
Rental Year, Lease Year and Calendar Year Defined
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SECTION 7. For the purposes of this Lease, the words "Rental Year" or "Lease
Year" shall mean the period beginning on the Commencement Date and ending 12
months thereafter of each year the Lease is in effect. "Calendar Year"
shall mean the period beginning January and ending December for each year the
Lease is in effect. This shall be used for the purpose of Landlord's Outside
Operating Expenses, Real Estate Taxes and Insurance reimbursement.
Percentage Rents
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SECTION 8. Section Omitted.
Gross Sales Defined
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SECTION 9. Section Omitted.
Tenant's Records
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SECTION 10. Section Omitted.
Additional Rent
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SECTION 11. Tenant will promptly pay all Rent and other payments to Landlord
provided for herein when and as the same shall become due and payable. If
the Landlord shall pay any reasonable moneys, or incur any reasonable
expenses in correction of the violation of Tenant's covenants herein set
forth, after thirty (30) days prior written notice to Tenant to cure and
which period expired without cure by Tenant, the amounts so paid or incurred
shall, at Landlord's option, and on written notice to Tenant with itemized
amounts, be considered Additional Rent payable by Tenant with the first
installment of Minimum Rent thereafter to become due and payable, and may be
collected or enforced as by law provided in respect of Rent.
Payments at Office of Landlord's Agent
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SECTION 12. All Rent payable and all statements deliverable by Tenant to
Landlord under this Agreement shall be paid and delivered to Prudential
Commercial Real Estate, Agent for the Landlord, at the office of said Agent,
6912 Three Chopt Road, Suite A, Richmond, Virginia 23226, or to such other
party or address as Landlord may direct by written notice.
Real Taxes, Assessments
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SECTION 13. Tenant agrees to pay its proportionate share as hereinafter
determined of all taxes, assessments and governmental charges of any kind and
nature whatsoever levied or assessed against the Center and any other
charges, taxes and/or impositions now in existence or hereinafter imposed by
any governmental authority based upon the privilege of owning or renting the
Leased Premises and any tax, fee, levy, assessment or charge which is added
to a tax or charge herein before included (all of the foregoing being
hereinafter referred to as the "Taxes"). During each month of this Lease
beginning on the Commencement Date, Tenant shall pay to Landlord as
Additional Rent an amount which is estimated to be one-twelfth of its
proportionate share of the Taxes which will be due and payable for that
particular lease year. This amount is subject to increase or decrease as
determined by Landlord to reflect accurate payments of Tenant's proportionate
share of the Taxes. The exact amount of Tenant's liability for taxes shall
be determined annually and reported to Tenant within sixty (60) days of the
close of any Rental Year. The amount paid as Additional Rent for Taxes may
be adjusted twice in any Calendar Year; once in July and once in January of
each Calendar Year. In the event Landlord's evaluation of Tenant's liability
for taxes indicates that the monthly tax payments were less than Tenant's
actual pro rata share of the Taxes on the Center, Tenant shall pay to
Landlord upon demand the difference, within thirty (30) days; if the total
tax payments of Tenant are more than Tenant's actual pro rata share of the
Taxes on the Center, Landlord shall refund such amount to Tenant. Tenant's
proportionate share ("Proportionate Share") of the Taxes on the Center shall
be computed by multiplying the Taxes by a fraction, the numerator of which
shall be the number of square feet of floor space in the Leased Premises and
the denominator of which shall be the number of square feet of leasable floor
space in the Center as of that date equivalent to the Commencement Date of
the applicable Rental Year.
Not a Joint Venture
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SECTION 14. Any intention to create a joint venture or partnership relation
between the parties hereto is hereby expressly disclaimed.
Landlord's Improvements
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SECTION 15. Landlord will maintain during the term and any renewal period of
this Lease the Center substantially as shown on "Exhibit A" but not less than
Sixty Thousand (60,000) square feet. Although Landlord
reserves the right to make additions to, subtractions from or rearrangements
of the building areas indicated on "Exhibit A," it is distinctly understood
that any such changes or rearrangements shall not permanently reduce the
total gross building area below that required by this Section 15.
Driveways and Parking Areas
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SECTION 16. Landlord agrees to provide and maintain hard surfaced parking
areas with adequate drainage and lighting facilities, including footways and
necessary access roads within the Center.
Trade Fixtures
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SECTION 17. All trade fixtures and apparatus installed by Tenant in the
Leased Premises except such as may be the property of the Landlord as a
result of Landlord having provided Tenant with allowances for the
installation of any such fixtures or apparatus, shall remain the property of
the Tenant and shall be removable from time to tine and also at the
expiration of the term of this Lease or any renewal or extension thereof, or
other termination thereof, provided (i) all damage to the Leased Premises
caused by such removal shall be reported and repaired by Tenant within ten
(10) days of such removal, and (ii) Tenant shall not at such time be in
default under any covenant or agreement contained in this Lease.
Use of Premises
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SECTION 18. The Leased Premises shall be used by Tenant, solely for the
purpose of conducting therein the business of the use of an outpatient
dialysis treatment facility and related medical facilities.
Prompt Occupancy and Use
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SECTION 19. Tenant will occupy the Leased Premises promptly upon the
Possession Date and will thereafter initiate and continuously conduct in the
Leased Premises the business as above stated. Tenant will not use, or permit
or suffer the use of, the Leased Premises for any other business not
expressly permitted under Section 18 above, and will conduct business in the
Leased Premises only in its own name.
Tenant will cause said business to be conducted and operated in good faith.
Operation by Tenant
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SECTION 20. Tenant will keep the inside of all glass in the doors and
windows of the Leased Premises clean; will replace promptly at its own
expense with glass of like kind and quality any plate glass or window glass
and door and door hardware of the Leased Premises which may become cracked or
broken, due to the negligence of Tenant or unless by fire; will not, without
the consent in writing of the Landlord, place or maintain any merchandise or
other articles in any vestibule or entry of the Leased Premises, on the foot
walks adjacent thereto, or elsewhere on the exterior thereof; will maintain
the Leased Premises at its own expense in a clean, orderly and sanitary
condition and free of insects, rodents, vermin and other pests; will not
permit undue accumulations of garbage, trash, rubbish and other refuse, but
will remove the same at its own expense, and will keep such refuse in rat-
proof containers within the interior of the Leased Premises until called for
to be removed; will be responsible for the proper containment and disposal of
all biomedical waste; will not use or permit the use of any apparatus or
musical instruments for sound reproduction or transmission in such manner
that the sounds so reproduced, transmitted or produced shall be audible
beyond the interior of the Leased Premises; will not cause or permit
objectionable odors to emanate or be dispelled from the Leased Premises; will
comply with all laws and
ordinances and all valid rules and regulations of governmental authorities
(collectively, "Laws"), and all recommendations of the Virginia Fire
Insurance Rating Bureau, with respect to the use of occupancy of the Leased
Premises by Tenant; and will conduct its business in the Leased Premises in
all respects in a dignified manner.
Exterior Repairs
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SECTION 21. Landlord will keep the exterior of the Leased Premises,
including, among others, the roof, structure, exterior walls, the plumbing,
and electrical components leading into the Leased Premises, landscape and
common areas (except any doors and door hardware, windows and glass), in good
condition and repair, provided that Tenant shall give Landlord written notice
of the necessity for such repairs, and provided that the damage thereto shall
not have been caused by negligence of Tenant, in which event Tenant shall be
responsible there for. Landlord shall be under no liability for repair,
maintenance, alteration or any other action with reference to the Leased
Premises or any part thereof, or any plumbing, heating, electrical, air
conditioning or other mechanical installation therein, except as may be
expressly set out in this Agreement.
Interior Repairs; Surrender
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SECTION 22. Tenant shall keep the Leased Premises in good, clean condition
and shall, at its sole cost and expense, make all needed repairs and
replacements, including replacement of cracked or broken glass within the
Leased Premises, except for repairs and replacements expressly required to be
made by Landlord under Section 21 hereof and except if due, in whole or in
part, to the acts or omissions of the Landlord or its agents or employees,
and shall keep all electrical wiring, plumbing units, pipes and connections
within the Leased Premises free from obstruction and protected against ice
and freezing and in good operating order. Tenant shall be responsible for
the cleaning and maintenance of any grease traps serving the Leased Premises.
If any repairs, replacements or maintenance required on the part of Tenant
hereunder are not commenced within thirty (30) days after written notice to
Tenant from Landlord, Landlord may, at its option, perform such repairs,
replacements and maintenance without liability to Tenant for any loss or
damage which may result to its stock or business by reason thereof, and
Tenant shall pay to Landlord immediately upon demand as Additional Rent
hereunder the reasonable cost of such repairs, replacements or maintenance.
At the expiration or earlier termination of this Lease, Tenant shall
surrender the Leased Premises in good condition, reasonable wear and tear and
loss by fire or other casualty excepted and shall surrender all keys for the
Leased Premises to Landlord and shall inform Landlord of all combinations on
locks, safes and vaults, if any, in the Leased Premises. Upon move-out by
Tenant, should the Leased Premises require any repairs which are the
responsibility of Tenant hereunder, Landlord shall have the right to make
such repairs at Tenant's sole cost, if Tenant fails to do so after thirty
(30) days written notice by Landlord of such needed repairs.
Heating, Ventilating and Air Conditioning
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SECTION 23. Landlord will provide HVAC unit(s) prior to Tenant's taking
possession of the Leased Premises and turn same over to Tenant in good
operating order, and will warrant the HVAC for the initial four (4) years of
the Term. Maintenance of the HVAC located on or serving the Leased Premises
shall be solely the responsibility of Tenant throughout the entire term of
this Lease and any extensions hereof. Tenant shall, at its own cost and
expense, enter into a regularly scheduled preventative maintenance/service
contract with a maintenance contractor. The Maintenance Contractor and the
contract must be approved by Landlord in writing, which shall
not be unreasonably withheld.
Damage to Premises
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SECTION 24. Tenant will repair promptly at its own expense any damage to the
Leased Premises caused by bringing into the Leased Premises any property for
Tenant's use, or by the installation or removal of such property, regardless
of fault or by whom such damage shall be caused, unless caused by Landlord,
its agents, employees, or contractors. If Tenant fails to make such repairs
after 30 days written notice from the Landlord, Landlord may make the same
and Tenant agrees to pay the reasonable cost thereof to Landlord promptly
upon Landlord's demand thereafter with itemized bills and proof of payment
therefore.
Alterations by Tenant
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SECTION 25. Tenant will not make any structural alteration to the Leased
Premises or any part thereof, other than moving the front entrance door as
may be specified on Tenants architectural floor plans, and other than as
allowed or required under this Lease, without first obtaining Landlord's
written approval of such alteration, which approval shall not be unreasonably
withheld; and Tenant agrees that any improvements made by it shall
immediately become the property of the Landlord and shall remain upon the
Leased Premises in the absence of written agreement to the contrary. Tenant
further will not, except for the installation of fixtures and other work to
be performed by it as permitted under this Lease, cut or drill into or secure
any fixture, apparatus or equipment of any kind to any part of the Leased
Premises without first obtaining Landlord's written consent, which will not
be unreasonably withheld.
After the Possession Date, Tenant agrees to proceed with due diligence to
perform the work described under "Tenant's Work" on Exhibit C, all of such
work to be performed in compliance with Exhibit C, and to install its
fixtures, furniture and equipment.
Signs and Advertising
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SECTION 26. Notwithstanding anything expressed in this Lease to the
contrary. (i) Tenant shall conform to Landlord's sign policy attached hereto
as Exhibit "B" and made a part hereof, and (ii) Tenant will not place or
maintain any decoration, lettering or advertising matter on the glass of any
window or door of the Leased Premises not in keeping with the character and
standards of the Center; and Tenant further agrees to maintain such sign,
decoration, lettering, advertising matter or other thing as may be approved
in good condition and repair at all times and in compliance with all Laws.
Painting and Decorating
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SECTION 27. Tenant will not paint or decorate any part of the exterior of
the Leased Premises, or any part of the interior of the Leased Premises which
shall be visible from the exterior thereof, without first obtaining
Landlord's written approval of such painting or decoration, which will not be
unreasonably withheld.
Roof and Walls
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SECTION 29. Landlord shall have the exclusive right to use all or any part
of the roof of the Leased Premises for any purpose; to erect additional
stories or other structures over all or any part of the Leased Premises; and
to erect in connection with the construction thereof temporary scaffolds and
other aids to construction on the exterior of the Center, provided that
access to the Leased Premises shall not be denied. Tenant further agrees
that Landlord
may make any use it desires of the side or rear walls of the Leased Premises,
provided that (i) there shall be no encroachment upon the interior of the
Leased Premises, and (ii) no existing entry way shall be obstructed thereby.
Common Facilities
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SECTION 30. Landlord grants to Tenant during any term hereto the right of
non-exclusive use, in common with others, of all vehicle parking areas within
the Center for the accommodation and parking of passenger automobiles of
Tenant's patients; provided, Landlord shall designate six parking spaces and
so mark them for the handicapped, which designated spaces shall be located as
close as possible to the Leased Premises' closest entrance.
All parking areas, access roads and facilities which may be furnished by
Landlord in or near the Center, including employee parking areas, the truck
way or ways, loading docks, package pick-up stations, pedestrian sidewalks,
malls, courts, and ramps, landscaped areas, retaining walls, first-aid
stations, comfort stations, lighting facilities, auditorium, public telephone
facilities and other areas and improvements which may be provided by the
Landlord for the general use, in common, of tenants, their officers, agents,
employees, and customers, shall at all times be subject to the exclusive
control and management of Landlord, and Landlord shall have the right from
time to time to hire, employ or contract for such parking and security
personnel that may be reasonably required and to establish, modify and
enforce reasonable rules and regulations with respect to all facilities and
areas mentioned in this section. Landlord shall construct, maintain and
operate lighting facilities on all said areas and improvements. Landlord
shall have the right from time to time to change the areas, location, and
arrangement of parking area and other facilities referred to in this Section
30, to change truck routes to such extent as the Landlord may desire,
provided that the Leased Premises are adequately served by the new route; to
restrict parking by tenants, their officers, agents and employees to employee
parking areas; to construct surface or elevated parking areas and facilities;
to establish and from time to time change the level of parking surfaces; to
close all or any portion of said areas or facilities to such extent as may,
in the opinion of the Landlord's counsel, be legally sufficient to prevent a
dedication thereof or the accrual of any rights to any person or to the
public therein; solely for repair or construction, to close temporarily all
or any portion of the parking areas or facilities; to discourage non-customer
parking; and to do and perform such other acts in and to said areas and
improvements as, in the use of good business judgment, the Landlord shall
determine to be advisable with a view to the improvement of the convenience
and use thereof by tenants, their officers, agents, employees and customers.
Tenant agrees that it will cause its officers, agents and employees to park
their automobiles only in such areas as Landlord may from time to time
designate as employee parking areas.
Expense of Common Facilities
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SECTION 31. Landlord will, at its expense (subject to the reimbursement
provisions hereinafter set forth), operate and maintain the common facilities
referred to in Section 30.
For the purpose of this Section 31, the "Landlord's Outside Operating Costs"
in connection with the common facilities outside of the Center buildings
shall be those of operating and maintaining the common facilities of the
Center in a manner deemed by the Landlord reasonable and appropriate and for
the best interests of the tenants in the Center, including without
limitation, all costs and expense of operating, repairing, lighting,
cleaning, painting, stripping, insuring, removing of snow, ice debris,
maintaining landscaped areas, policing, inspecting, and all costs and
expenses other than those of a capital nature of replacement of paving,
curbs, walkways, landscaping, draining and lighting facilities.
Tenant agrees to pay for its estimated share of such Landlord's Outside
Operating Costs as Additional Rent
hereunder in advance on the first day of each month during the Term hereof
beginning on the Commencement Date.
The Tenant's share of Outside Operating Costs is subject to annual adjustment
based on Tenant's Proportionate Share (as defined in Section 13 above) of the
actual expense incurred by Landlord for Outside Operating Costs for the
immediately prior Calendar Year. Within 90 days after the end of each
Calendar Year, Landlord will bill Tenant and Tenant will pay Landlord within
30 days, for any deficiency between Tenant's current payment obligation and
Tenant's Proportionate Share of Landlord's actual Outside Operating Costs.
Landlord will promptly refund any overpayment of outside Operating Costs made
by Tenant.
Tenant's Insurance
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SECTION 32. Tenant will keep in force at its own expense so long as this
lease remains in effect comprehensive, public liability and property
insurance with respect to the Leased Premises with reputable insurance
companies. This insurance shall be a policy of combined single limit, bodily
injury and property damage against liability arising from the use, occupancy,
or maintenance of the Leased Premises in an amount not less than One Million
Dollars ($1,000,000.00). Tenant will name Landlord as an additional insured
in said policy. If Tenant shall not comply with its covenants made in this
Section 32, Landlord may, at its option, after 30 days written notice to
Tenant, cause insurance as aforesaid to be issued, and in such event Tenant
agrees to pay the premium for such insurance.
Indemnity by Tenant
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SECTION 33. Tenant will indemnify, defend and hold Landlord and Landlord's
agents harmless from and against any and all claims, actions, damages,
liabilities and expenses (including reasonable attorneys' fees) in connection
with loss of life, personal injury and/or damage to property arising from or
out of the occupancy or use by Tenant of the Leased Premises on the Center,
or occasioned wholly or in part by any act or omission of Tenant, its agents,
contractors, or employees.
Indemnity by Landlord
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SECTION 33A. In consideration of said Leased Premises being leased by Tenant
and the payment of Rent and Additional Rent as provided in this Lease,
Landlord agrees: That Landlord at all times will indemnify and keep harmless
Tenant from all losses, damage, liabilities and expenses which may arise or
be claimed against Tenant and be in favor of any person, firm or corporation,
for any injuries or damages to the person or property of any person, firm or
corporation, consequent upon or arising from any acts, omissions, neglect or
fault of the Landlord, its agents, servants, employees, licensees or
invitees, or consequent upon or arising from the Landlord's failure to comply
with its obligations and requirements under this Lease; provided, that
Landlord shall not be liable to Tenant for any damages, losses or injuries to
the person or property of Tenant which may be primarily caused by the acts,
neglect omissions or faults of any person, firm or corporation without
Landlord's responsibility, directly or indirectly, therefore; that Landlord
will indemnify and keep harmless Tenant from all damages, liabilities,
losses, injuries, or expenses which may arise or be claimed against Tenant,
its employees, agents, servants and invitees, and be in favor of any person,
firm or corporation, for any injuries or damages to the person or property of
any person, firm or corporation where said injuries or damages arise about or
upon said Leased Premises due to the acts or omissions of the Landlord, its
servants, agents and contractors.
Loss or Damage of Tenant's Property
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SECTION 34. Landlord shall not be liable for any damage to, or loss or theft
of, property of Tenant or of others located on the Leased Premises. Landlord
shall not be liable for any injury or damage to persons or property (real or
personal) resulting from fire or other casualty, explosion, falling plaster,
steam, gas, electricity, water, rain, snow or leaks in the Leased Premises or
from the pipes, appliances or plumbing works, or from the roof, street or
subsurface or from any other cause or by dampness or by any other cause of
whatsoever nature; provided however, if Landlord has a duty to repair under
this Lease, Landlord shall use diligence in making the repairs upon receiving
written notice from Tenant. Landlord shall not be liable for any damage
caused by other tenants or persons in the Center, occupants of adjacent
property or the public, or caused by construction operations. Landlord shall
not be liable for any latent defect in the Leased Premises or in the building
of which the Leased Premises form a part, provided such defect does not
unreasonably interfere with Tenant's business. All property of Tenant kept
or stored on the Leased Premises shall be so kept or stored at the risk of
Tenant only. Tenant shall give immediate notice to Landlord in case of fire
or other casualty in the Leased Premises or known casualty in respect to the
building of which the Leased Premises are a part or the Shopping Center or of
defects therein or in any fixtures or equipment. Notwithstanding anything in
this Section 34 to the contrary, any damage, loss, theft or injury shall be
the responsibility of the Landlord to the extent due, in whole or in part, by
any act or omission of the Landlord, its agents, contractors or employees.
Fire Insurance
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SECTION 35. Tenant will not do or suffer to be done, or keep or suffer to be
kept, anything in, upon or about the Leased Premises which will contravene
Landlord's insurance policies. If Tenant's business operation shall cause
the rate of fire or other insurance on the Leased Premises, the Center or
other property of Landlord to be increased beyond the rate from time to time
applicable to the Center, Tenant will pay the amount of such increase
promptly upon Landlord's demand.
Fire or Other Casualty
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SECTION 36. If the Leased Premises shall be damaged by fire, the elements,
unavoidable accident or other casualty, but are not thereby rendered
untenantable in whole or part, Landlord shall promptly at its own expense
cause such damage to be repaired, and the Rent shall not be abated; if by
reason or such occurrence, the Leased Premises shall be rendered untenantable
only in part, Landlord shall promptly at its own expense cause the damage to
be repaired, and the Minimum Rent meanwhile shall be abated proportionately
as to the portion of the Leased Premises rendered untenantable; if by reason
of such occurrence the Leased Premises shall be rendered wholly untenantable,
Landlord shall promptly at its own expense cause such damage to be repaired,
and the Minimum and Additional Rent meanwhile shall be abated in whole.
However, if within sixty (60) days after said occurrence Landlord shall give
Tenant written notice that it has elected not to reconstruct the Leased
Premises, in such event this Lease shall terminate as of the date of the
casualty in question and the Minimum and Additional Rent and all other
liabilities under this Lease shall terminate as of such date.
Condemnation
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SECTION 37. If the whole or any part of the Leased Premises shall be taken
under the power of eminent domain, then this Lease shall terminate as to the
part so taken on the day when Tenant is required to yield possession thereof,
and the Landlord shall make such repairs and alterations as may be necessary
in order to restore the part not taken to useful condition; and the Minimum
Rent shall be reduced proportionately as to the portion of the Leased
Premises so taken. If the amount of the Leased Premises so taken is such as
to impair substantially the usefulness of the Leased Premises for the
purposes for which the same is hereby leased, then either party shall have
the option to terminate this Lease as of the date when Tenant is required to
yield possession. All
compensation awarded for such taking of the fee and the leasehold shall
belong to and be the property of the Landlord; provided, however, that the
Landlord shall not be entitled to any portion of the award made to the Tenant
for loss of business and for the cost of removal of stock and fixtures.
Inspections by Landlord
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SECTION 38. Tenant will permit Landlord, its agents, employees, and
contractors to enter the Leased Premises and all parts thereof during
business hours to inspect the same and to enforce or carry out any provision
of this Lease Agreement, with reasonable prior notice, and with the least
interference with the Tenant's use of the Leased Premises and its operations.
Landlord may also enter at any time and without notice in an emergency
situation.
Short Lease Recording
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SECTION 39. Either party hereto agrees that at the request of the other, it
will execute, acknowledge and deliver a short form of this Lease Agreement to
the end that the same may be recorded among the Land Records of King William
County, Virginia. All recording taxes and charges shall be paid by the party
requesting such recordation.
Assignments or Subletting
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SECTION 40. Tenant will not assign this Lease Agreement in whole or in part,
or sublet all or any part of the Leased Premises, or license concessions or
lease departments therein, without the prior written consent of Landlord,
which shall not be unreasonably withheld. Consent by Landlord for any
assignment or subletting shall not constitute a waiver of the necessity for
such consent to any subsequent assignment or subletting. This prohibition
against assigning or subletting shall be construed to include a prohibition
against any assignment or subletting by operation of law. In the event any
assignment or sublease hereof creates any compensation to Tenant over and
above all Rent and other amounts due Landlord hereunder, 50% such excess
shall be paid to Landlord as Additional Rent hereunder. Sale of Tenant or
substantially all of its assets, or the merger or similar business
combination of Tenant in which the Tenant is not the surviving company shall
not be deemed an assignment or subletting of this Lease, provided the new
entity is bound by the terms of this Lease.
Bankruptcy, etc. of Tenant
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SECTION 41. If any sale of Tenant's interest in the Leased Premises shall be
made under execution or similar legal process, or if Tenant shall be
adjudicated a bankrupt or insolvent, and such adjudication is not vacated
within sixty (60) days, or if a receiver or trustee shall be appointed for
its business or property, and such appointment shall not be vacated within
sixty (60) days, or if a corporate reorganization of the Tenant or an
arrangement with its creditors shall be approved by a court under the Federal
Bankruptcy Act, or if Tenant shall make an assignment for the benefit of
creditors, or if in any other manner Tenant's interest under this Lease shall
pass to another by operation of law, then, in any of said events, Tenant
shall be deemed to have breached a material covenant of this Lease and
Landlord may, at its option, re-enter the Leased Premises and declare this
Lease and the tenancy hereby created terminated, but not withstanding such
termination Tenant shall remain liable for all rent or damages which may be
due at the time of such termination and, further, shall be liable for the
liquidated damages set forth in paragraph B of Section 43 of this Lease.
Performance by Tenant
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SECTION 42. Tenant covenants and agrees that it will perform all agreements
herein expressed on its part to be
performed, and that it will promptly upon receipt of written notice
specifying action desired by Landlord in connection with any such covenant
commence to comply with such notice; and further, that if Tenant shall not
commence and proceed diligently to comply with such notice to the
satisfaction of Landlord within thirty (30) days after delivery thereof, then
Landlord may, at its option enter upon the Leased Premises and do the things
specified in said notice, and the Landlord shall have no liability to Tenant
for any loss or damage resulting in any way from such action by Landlord,
except for the negligence of the Landlord, its agents, contractors and
employees, and Tenant agrees to pay promptly upon demand any reasonable
expense incurred by Landlord in taking such action including, but not limited
to, reasonable legal fees.
Performance by Landlord
- -----------------------
SECTION 42A. Landlord consents and agrees that it will perform all
agreements herein expressed on its part to be performed, and that it will
promptly, upon reasonable written notice specifying action desired by Tenant
in connection with any such covenant, commence to comply with such notice;
and further, that if Landlord shall not commence and proceed diligently to
comply with such notice to the satisfaction of Tenant within thirty (30) days
after delivery thereof, then Tenant may, at its option, do the things
specified in said notice, and the Tenant shall have no liability to Landlord
for any loss or damage resulting in any way from such action by Tenant,
except for the negligence of the Tenant, its agents and employees, and
Landlord agrees either to pay promptly upon demand any reasonable expense
incurred by Tenant in taking such action including, but not limited to,
reasonable legal fees, or to deduct such expenses from the Minimum Rent
and/or Additional Rent that may thereafter be due.
Remedies of Landlord
- --------------------
SECTION 43. A. If Tenant shall violate any covenant, to pay Rent or any
other funds to Landlord, made by Tenant in this Lease Agreement or shall fail
to comply or commence compliance with any other covenant hereof within thirty
(30) days after being sent written notice of such violation by Landlord,
Landlord may, at its option, re-enter the Leased Premises and declare this
Lease Agreement and the tenancy hereby created terminated; and Landlord shall
be entitled to all the provisions of the laws of the State of Virginia
respecting summary ejectment and the recovery of lands and tenements held
over by the Tenant.
B. Tenant further agrees that notwithstanding re-entry and termination
pursuant to Section 41, Section 42 or Paragraph A of this Section 43 of this
Lease, Tenant shall remain liable for any Rent or damages and reasonable
legal fees which may be due or sustained prior thereto, and all reasonable
costs, brokerage commissions and other professional fees and expenses
incurred by Landlord in leasing the Leased Premises to other tenants. Tenant
shall also pay Landlord an amount of money equal to the total rent which, but
for such termination, would have become payable during the unexpired portion
of the time remaining at the time of such termination, less the amount of
rent, if any, which Landlord may receive during such period from others to
whom the Leased Premises may be rented on such terms and conditions and at
such rent as Landlord, in its sole discretion, shall deem proper. Such
damages shall be payable in monthly installments, in advance, on the first
day of each calendar month following such termination, and continuing until
the date originally fixed herein for the expiration of the then current term
of this Lease and any suit or action brought to collect the amount of any
deficiency for any month shall not in any manner prejudice the right of the
Landlord to collect any deficiency for any subsequent month by a similar
proceeding. Within one month after the date originally fixed herein for the
expiration of the then current term of this Lease, Landlord shall give a
written statement to Tenant showing all sums received by Landlord by way of
damages and all sums received from others to whom the Leased Premises may
have been rented. In the event it appears that Tenant has paid a greater sum
of money than is due, as determined by the terms of this Section 43, then,
and in such event, Landlord will promptly refund to Tenant any such excess.
Remedies Cumulative
- -------------------
SECTION 44. No mention in this Lease of any specific right or remedy shall
preclude either party from exercising any other right or from having any
other remedy or from maintaining any action to which it may otherwise be
entitled either at law or in equity; and the failure of either party to
insist in any one or more instances upon a strict performance of any covenant
of this Lease or to exercise any option or right herein contained shall not
be construed as a waiver or relinquishment for the future of such covenant,
right, or option, but the same shall remain in full force and effect unless
the contrary is expressed in writing by the other party.
Water, Gas and Electricity
- --------------------------
SECTION 45. Tenant covenants that it will promptly pay all utility bills,
including water, sewer, stormwater, gas and electricity for its use of such
utilities at the Leased Premises as the same shall become due. If Landlord
pays for any such utilities for which the Leased Premises is not separately
metered, Tenant shall reimburse Landlord for the utilities allocable to the
Leased Premises within fifteen (15) days after receipt of an itemized bill
therefor. If Landlord shall pay any monies or incur any expense in
correction of violation of Tenant's covenants herein set forth, after failure
of Tenant to cure upon thirty (30) days written notice by Landlord, the
amounts so paid or incurred shall, at Landlord's option, and on notice to
Tenant, be considered Additional Rent payable by Tenant with the first
installment of Minimum Rent thereafter to become due and payable.
Successor and Assigns
- ---------------------
SECTION 46. Subject to the terms of Section 40 hereof, this Lease Agreement
and the covenants and conditions herein contained, shall be binding upon and
inure to the benefit of Landlord and shall be binding upon Tenant, its
successors and assigns, and inure to the benefit of Tenant and only such
assigns of Tenant to whom the assignment by Tenant has been consented to in
writing by Landlord.
Notices
- -------
SECTION 47. All notices from Tenant to Landlord required or permitted by any
provision of this Lease Agreement shall be mailed first class postage prepaid
or hand delivered with a delivery receipt signed by the receipt to Landlord
at the following address: c/o Prudential Commercial, 6912 Three Chopt Road,
Suite A, Richmond, VA 23226. All notices from Landlord to Tenant so required
or permitted shall be directed as follows: Dialysis Corporation of America,
Inc., 1344 Ashton Road, Hanover, MD 21076. Either party shall have the right
to direct the other to direct notices to a substitute address from time to
time provided such direction is in writing and sent pursuant to the terms of
this Section 47.
Option to Renew
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SECTION 48. Provided that Tenant is not then in default under this Lease
beyond applicable cure periods, Landlord grants to Tenant two options
("Renewal Options") to extend this Lease for two consecutive terms of five
(5) years each (the "Renewal Terms") under the same terms and conditions
contained within this Lease, except that the Minimum Rent shall be increased
by 3% per year.
Should Tenant elect to renew this Lease as described above, written notice of
such intention must be forwarded to Landlord not less than six (6) months
prior to the end of the Original Term, or the first Renewal Period, as the
case may be, of this Lease in accordance with the provisions of Section 47
hereof.
Center Insurance
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SECTION 49. Tenant agrees to pay its proportionate share of Landlord's cost
of carrying fire insurance, extended coverage insurance and liability
insurance in such amounts as Landlord reasonably deems necessary or desirable
on the Center and any property associated therewith. Beginning on the
Commencement Date, during each month of this Lease, Tenant shall pay to
Landlord as Additional Rent an amount which is estimated to be one-twelfth of
its proportionate share of these insurance expenses which will be due and
payable for that particular Lease Year. This amount is subject to increase
or decrease as determined by Landlord to reflect accurate payments of
Tenant's proportionate share of these expenses. The exact amount of Tenant's
liability for insurance expenses hereunder shall be determined annually and
reported to Tenant within sixty (60) days after the end of each Calendar
Year. The amount paid as Additional Rent for insurance under this section
may be adjusted twice in any Calendar Year to reflect the contemplated
insurance premiums for that Calendar Year. Tenant's Proportionate Share of
such insurance expenses shall be computed pursuant to Section 13 hereof.
Environmental
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SECTION 50. Landlord warrants that upon the Possession Date of the Leased
Premises by Tenant pursuant to this Lease Agreement, the Leased Premises are
free from Regulated Substances and any asbestos containing material.
Landlord and Tenant warrant the same to each other relating to their
respective Work under the terms of the Work Letter attached as Exhibit C
hereto. The term "Regulated Substances" shall include "hazardous waste,"
"hazardous substances," "regulated substances," "petroleum," "polychlorinated
biphenyls," and other substances or chemicals regulated pursuant to the
Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. Sections 9601-9675, the Solid Waste Disposal Act, 42 U.S.C. Sections
6901-6991i, the Toxic Substances Control Act, 15 U.S.C. Sections 2601-2654,
and the regulations promulgated under those Federal Statutes and any similar
and other State environmental laws and regulations.
Upon the expiration or earlier termination of this Lease, or at any time
during the Term of this Lease or any Renewal Period, either Landlord or
Tenant may have the Leased Premises inspected by a firm, person or entity
qualified to perform environmental inspections of real property. In the
event such inspection reveals the presence of any asbestos or Regulated
Substance, the party responsible for the presence of any asbestos or
Regulated Substance shall pay for such inspection and undertake to promptly
remove said Regulated Substances or asbestos and remediate the Leased
Premises at its sole cost and expense. In the event such inspection reveals
no Regulated Substances or asbestos to be present, the inspection will be
paid for by the party which ordered it. Each party further agrees to
indemnify, hold harmless and defend the other from any and all claims,
damages, fines, judgments, penalties, costs, liabilities or losses
(including, without limitation, any and all sums paid for the settlement of
claims, attorneys fees, consultant and expert fees) arising during or for one
(1) year after the Term or any Renewal Period of this Lease from or in
connection with any inaccuracy in or breach of covenant warranty
representation or obligation of such party set forth in this Section 50.
Virginia Law
- ------------
SECTION 51. This Lease Agreement shall be construed under the laws of the
State of Virginia.
Captions and Headings
- ---------------------
SECTION 53. The captains and headings throughout this Lease are for
convenience and reference only and the
words contained therein shall in no way be held or deemed to define, limit,
describe, explain, modify, amplify or add to the interpretation, construction
or meaning of any provision of or the scope or intent of this Lease nor in
any way affect this Lease.
Joint and Several Liability
- ---------------------------
SECTION 54. [In the event that two or more individuals, corporations,
partnerships or other business associations (or any combination of two or
more thereof) shall sign this Lease Agreement as Tenant, the liability of
each such individual, corporation, partnership, or other business association
to pay rent and perform all other obligations hereunder shall be deemed to be
joint and several. In like manner, in the event that the Tenant named in
this Lease Agreement shall be a partnership or other business association,
the members of which are, by virtue of statute or general law, subject to
personal liability then, and in the event, the liability of each such member
shall be deemed to be joint and several.]
Security Deposit
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SECTION 55. Section Omitted.
WITNESS the following signatures and seals:
LESSOR: Warsaw Village L.P.
Medalist Properties 1 LLC, G.P.
/s/ Carl Elliott
BY: ------------------------------------(SEAL)
Member
LESSEE: DCA of Warsaw, LLC,
/s/ Stephen W. Everett
BY: ------------------------------------(SEAL)
NAME: STEPEHN W. EVERETT
TITLE: President
Exhibit A
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(Site Plan)
Exhibit B
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SIGN POLICY
Warsaw Village
--------------
1. All tenant's signs shall be in compliance with all applicable ordinances
and regulations of the Town of Warsaw, Virginia.
2. Subject to item one, each tenant shall be allowed one sign on the exterior
of the Leased Premises approved by Landlord.* The material and design of the
sign face shall be subject to Landlord's approval.*
3. The size and design thereof shall be subject to Landlord's approval.
Upon application to the Landlord, tenants may use similar plaques for the
designation of sub-tenants or departments of their store.
4. No signs, banners, or other material shall be hung on or from the canopy,
except as provided in sections two and five hereof.
5. No standing sign shall be allowed on sidewalk or in parking area except at
such times special promotional events are held and then only with Landlord's
prior written approval.*
* which approval shall not be unreasonably withheld.
Exhibit C
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WORK LETTER
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LANDLORD'S WORK
---------------
Landlord agrees to deliver the Premises to Tenant in "vanilla box"
condition, consisting of the following improvements (collectively "Landlord's
Work"):
1. Demising walls smooth and ready for paint. Demising walls to extend from
the floor to structural ceiling. Demising walls per local codes (usually a 2
hr. rating).
2. Restrooms per ADA requirements and in conformance with current building
code. Number of restrooms to be in conformance with established governing
codes.
3. Heating and air conditioning system installed and functioning in good
working order.
4. Suite to have completed storefront with storefront entrance doors and
single rear door.
5. Suite to have minimum of 400 amps. - 120/208v electrical power (i.e.,
separate meter and panel).
6. Walls to have adequate amount of electrical outlets per code.
7. A 1" water meter with a 2" service line to the space.
8. Provide 4" sanitary sewer with appropriate depth for all floor drains and
fixtures.
9. Upon delivery of vanilla shell, Landlord warrants that the entire
premises conform to all current city, county and state building codes and
laws.
TENANT'S WORK
-------------
Tenant agrees to perform all work in the Premises necessary to occupy
same other than "Landlord's Work" as described above (collectively "Tenant's
Work").
(i) Prior to commencing construction, Tenant shall provide Landlord with its
final space and construction plans, which shall be subject to Landlord's
reasonable approval.
(ii) Upon receipt of Landlord's approval, Tenant, at its sole expense, shall
promptly and diligently construct its improvements to the Premises in
compliance with the approved plans in all material respects in a good and
workmanlike manner using quality materials. Tenant's improvements and any
subsequent alterations shall be performed by a reputable, bondable contractor
holding a Class A license, who shall be subject to Landlord's reasonable
approval (referred to as an "Approved General Contractor").