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DEED OF LEASE
BETWEEN
R & M REALTY HOLDING COMPANY,
as Landlord,
AND
IMTEK,
as Tenant
Dated: December 30, 1997
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For Premises Located
At Eighth and Main Building, 707 East Main Street,
Richmond, Virginia 23219
TABLE OF CONTENTS
Page
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ARTICLE 1: BASIC LEASE PROVISIONS . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2: DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3: THE PREMISES . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 4: TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 5: RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 6: SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 7: OPERATING EXPENSES [INTENTIONALLY DELETED] . . . . . . . . . 6
ARTICLE 8: TAXES [INTENTIONALLY DELETED] . . . . . . . . . . . . . . . . 6
ARTICLE 9: PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 10: USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 11: ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . 7
ARTICLE 12: MAINTENANCE AND REPAIR . . . . . . . . . . . . . . . . . . . 8
ARTICLE 13: ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 14: SIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 15: TENANT'S EQUIPMENT AND PROPERTY . . . . . . . . . . . . . . . 11
ARTICLE 16: RIGHT OF ENTRY . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 17: INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 18: LANDLORD SERVICES AND UTILITIES . . . . . . . . . . . . . . . 13
ARTICLE 19: LIABILITY OF LANDLORD . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 20: RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 21: DAMAGE; CONDEMNATION . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 22: DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 23: MORTGAGES . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 24: SURRENDER; HOLDING OVER . . . . . . . . . . . . . . . . . . . 21
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ARTICLE 25: QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 26: HAZARDOUS MATERIALS . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 27: MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 23
LIST OF EXHIBITS
Exhibit A Plan Showing Premises
Exhibit B [Intentionally Deleted]
Exhibit C Parking
Exhibit D Rules and Regulations
Exhibit E Declaration of Commencement Date
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DEED OF LEASE
THIS DEED OF LEASE (this "Lease") is made as of the 30th day of
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December, 1997 (the "Date of Lease"), by E & M REALTY HOLDING COMPANY, a
Delaware corporation ("Landlord"), and IMTEK, a Maryland corporation
("Tenant").
Landlord and Tenant, intending legally to be bound, hereby covenant
and agree as set forth below.
ARTICLE 1: BASIC LEASE PROVISIONS
The following terms, when used herein, shall have the meanings set
forth below.
1.1 PREMISES. Approximately 1,801 rentable square feet, known as
Suite 1050 and located on the tenth (10th) floor of the Building as outlined
on EXHIBIT A attached hereto and made a part hereof.
1.2 BUILDING. The building containing approximately 323,670
rentable square feet and all alterations, additions, improvements,
restorations or replacements now or hereafter made thereto, with an address
of 707 East Main Street, Richmond, Virginia 23219, and the Parking Facilities.
1.3 TERM. One (1) year.
1.4 COMMENCEMENT DATE. January 1, 1998, subject to adjustment as
set forth in Article 4.
1.5 EXPIRATION DATE. December 31, 1998, subject to adjustment as
set forth in Article 4.
1.6 BASE RENT. $15.00 for each rental square foot of the
Premises, payable in equal monthly installments of Two Thousand Two Hundred
Fifty-One and 25/100 Dollars ($2,251.25).
1.7 SECURITY DEPOSIT. $2,251.25 cash.
1.8 BASE YEAR. [INTENTIONALLY DELETED]
1.9 TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES AND REAL
ESTATE TAXES. [INTENTIONALLY DELETED]
1.10 PERMITTED USE. General office uses; however, such uses shall
not include any use that would cause the Premises to be deemed a "place of
public accommodation" under the Americans with Disabilities Act of 1990.
1.11 BROKER(S). Landlord's: Goodman Segar Hogan Hoffler
Tenant's: Harrison & Bates Incorporated
1.12 LANDLORD'S ADDRESS.
E & M Realty Holding Company
c/o Insignia Commercial Group
707 East Main Street, Suite 210
Richmond, Virginia 23219
Attn: Property Manager
E&M Realty Holding Company
c/o J.P. Morgan Investment Management, Inc.
522 Fifth Avenue, 9th Floor
New York, New York 10036
Attn: Real Estate Investment Group
With a copy to:
McGuire, Woods, Battle & Boothe, L.L.P.
901 East Cary Street
Richmond, Virginia 23219
Attn: William F. Gieg, Esq.
1.13 TENANT'S ADDRESS.
Before occupancy:
IMTEK
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After Occupancy:
IMTEK
707 East Main Street, Suite 1050
Richmond, Virginia 23219
Attn: Mr. Michael L. Lowe, President
1.14 GUARANTOR AND GUARANTOR'S ADDRESS.
[INTENTIONALLY DELETED]
ARTICLE 2: DEFINITIONS
The following terms, when used herein, shall have the meanings set
forth below.
2.1 AGENTS. Officers, partners, directors, employees, agents,
licensees, customers, contractors and invitees.
2.2 ALTERATIONS. Alterations, decorations, additions or
improvements of any kind or nature to the Premises or the Building,
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whether structural or non-structural, interior, exterior or otherwise.
2.3 CALENDAR YEAR. [INTENTIONALLY DELETED]
2.4 COMMON AREA. All areas, improvements, facilities and
equipment from time to time designated by Landlord for the common use or
benefit of Tenant, other tenants of the Building and their Agents, including,
without limitation, entrances and exits, landscaped areas, exterior lighting,
loading areas, pedestrian walkways, sidewalks, atriums, courtyards,
concourses, stairs, ramps, washrooms, maintenance and utility rooms and
closets, exterior utility lines, hallways, lobbies, elevators and their
housing and rooms, common window areas, common walls, common ceilings, common
trash areas and Parking Facilities.
2.5 INTEREST RATE. Per annum interest rate listed as the prime
rate on corporate loans at large U.S. money center commercial banks as
published from time to time under "Money Rates" in the WALL STREET JOURNAL
plus five percent (5%), but in no event greater than the maximum rate
permitted by law. In the event the WALL STREET JOURNAL ceases to publish such
rates, Landlord shall choose at Landlord's sole discretion a similar
publication which publishes such rates.
2.6 LAND. The piece or parcel of land upon which the Building is
located and all rights, easements and appurtenances thereunto belonging or
pertaining, or such portion thereof as shall be allocated by Landlord to the
Building.
2.7 LEASE YEAR. [INTENTIONALLY DELETED]
2.8 MORTGAGE. Any mortgage, deed of trust, security interest or
title retention interest affecting the Building or the Land.
2.9 MORTGAGEE. The holder of any note or obligation secured by a
mortgage, deed of trust, security interest or title retention interest
affecting the Building or the Land, including, without limitation, lessors
under ground leases, sale-leasebacks and lease-leasebacks.
2.10 PARKING FACILITIES. All parking areas now or hereafter owned
by Landlord and now or hereafter made available by Landlord for use by
tenants, including, without limitation, open-air parking, parking decks and
parking areas under or within the Building, whether reserved, exclusive,
non-exclusive or otherwise.
2.11 RENT. Base Rent payable hereunder.
2.12 SUBSTANTIAL COMPLETION. [INTENTIONALLY DELETED]
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2.13 SUBSTANTIAL PART. More than fifty percent (50%) of the
rentable square feet of the Premises or the Building, as the case may be.
ARTICLE 3: THE PREMISES
3.1 LEASE OF PREMISES. In consideration of the agreements
contained herein, Landlord hereby leases the Premises to Tenant, and Tenant
hereby leases the Premises from Landlord, for the Term and upon the terms and
conditions hereinafter provided. As an appurtenance to the Premises, Tenant
shall have the non-exclusive right, together with other tenants of the
Building and their Agents, to use the Common Area. Landlord shall retain
absolute dominion and control over the Common Area and shall operate and
maintain the Common Area in such manner as Landlord, in its sole discretion,
shall determine; provided, however, such exclusive right shall not operate to
prohibit Tenant from its use of the Premises for the Permitted Use. Landlord
expressly reserves the right permanently to change, modify or eliminate, or
temporarily to close, any portion of the Common Area. The Premises are leased
subject to, and Tenant agrees not to violate, all present and future
covenants, conditions and restrictions of record which affect the Building.
3.2 LANDLORD'S RESERVATIONS. In addition to the other rights of
Landlord under this Lease, Landlord reserves the right (i) to change the
street address and/or name of the Building, (ii) to install, erect, use,
maintain and repair mains, pipes, conduits and other such facilities to serve
the Building's tenants in and through the Premises, (iii) to grant to anyone
the exclusive right to conduct any particular business or undertaking in the
Building, (iv) to establish a condominium regime for the Building, the Land
and/or the Common Area and to include the Premises therein and (v) to control
the use of the roof and exterior walls of the Building for any purpose.
Landlord may exercise any or all of the foregoing rights without being deemed
to be guilty of an eviction, actual or constructive, or a disturbance or
interruption of the business of Tenant or Tenant's use or occupancy of the
Premises.
ARTICLE 4: TERM
4.1 COMMENCEMENT AND EXPIRATION DATES. The Term shall commence on
the Commencement Date and expire at midnight on the Expiration Date. If
Tenant uses or accepts the Premises before the date set forth in Article 1 as
the Commencement Date, then the Commencement Date shall be the date upon
which Tenant uses or accepts the Premises (e.g. by the moving of any
furnishings or other personalty into the Premises). In such event, the
Expiration Date shall be adjusted accordingly so that the period of the Term
is not changed. If requested by Landlord, Tenant shall within fifteen (15)
days of such request sign a declaration acknowledging
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the Commencement Date and the Expiration Date in the form attached hereto and
made a part hereof as EXHIBIT E.
4.2 DELAYED POSSESSION. In the event that Landlord is unable to
deliver possession of the Premises to Tenant on the Commencement Date set
forth in Article 1, Landlord shall not be liable or responsible for any
claims, damages or losses arising in connection with such delay in
possession, and Tenant shall not be excused or released from any obligation
under this Lease as a result of any delay in possession of the Premises.
ARTICLE 5: RENT
5.1 BASE RENT. Tenant shall pay to Landlord the Base Rent as
specified in Section 1.6. Base Rent shall be payable in equal monthly
installments, in advance, without demand, notice, deduction, offset or
counterclaim, on or before the first day of each and every calendar month
during the Term; provided, however, that the installment of the Base Rent
payable for the first full calendar month of the Term (and, if the
Commencement Date occurs on a date other than on the first day of a calendar
month, Base Rent prorated from such date until the first day of the following
month) shall be due and payable on the full execution and delivery of this
Lease. Tenant shall pay the Base Rent, by good check or in lawful currency of
the United States of America, to Landlord at Landlord's Address, or to such
other address or in such other manner as Landlord from time to time specifies
by written notice to Tenant. Any payment made by Tenant to Landlord on
account of Base Rent may be credited by Landlord to the payment of any late
charges then due and payable and to any Base Rent then past due before being
credited to Base Rent currently due.
5.2 ADDITIONAL RENT. [INTENTIONALLY DELETED]
ARTICLE 6: SECURITY DEPOSIT
Simultaneously with the execution of this Lease, Tenant shall
deposit the Security Deposit with Landlord, which shall be held by Landlord,
without obligation for interest, as security, for the performance of Tenant's
obligations and covenants under this Lease. It is expressly understood and
agreed that such deposit is not an advance rental deposit or a measure of
Landlord's damages in case of an Event of Default. If an Event of Default
shall occur or if Tenant fails to surrender the Premises in the condition
required by this Lease, Landlord shall have the right (but not the
obligation), and without prejudice to any other remedy which Landlord may
have on account thereof, to apply all or any portion of the Security Deposit
to cure such default or to remedy the condition of the Premises. If Landlord
so applies the Security Deposit or any portion thereof before the Expiration
Date or earlier termination of this Lease, Tenant shall deposit with
Landlord, upon demand, the amount necessary to restore the Security
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Deposit to its original amount. If Landlord shall sell or transfer its
interest in the Building, Landlord shall have the right to transfer the
Security Deposit to such purchaser or transferee, in which event Tenant shall
look solely to the new landlord for the return of the Security Deposit, and
Landlord thereupon shall be released from all liability to Tenant for the
return of the Security Deposit. Although the Security Deposit shall be deemed
the property of Landlord, any remaining balance of the Security Deposit shall
be returned to Tenant at such time after the Expiration Date or earlier
termination of this Lease that all of Tenant's obligations under this Lease
have been fulfilled. Landlord shall conduct a "Post Move-Out Inspection" of
the Premises within fifteen (15) days after the Expiration Date or earlier
termination of this Lease.
ARTICLE 7: OPERATING EXPENSES [INTENTIONALLY DELETED]
ARTICLE 8: TAXES [INTENTIONALLY DELETED]
ARTICLE 9: PARKING
9.1 PARKING SPACES. Tenant and its Agents shall have the right to
use the Parking Facilities in accordance with the terms and provisions of
EXHIBIT C attached hereto. If Landlord shall determine that Tenant and its
Agents are using parking spaces in violation of the terms of EXHIBIT C or if
Tenant defaults under any lease or other agreement with the Parking Manager
(as defined in EXHIBIT C) for use of Parking Facilities and Tenant fails to
remedy such default within fifteen (15) days following written notice from
Landlord or Parking Manager, such default shall be an Event of Default giving
rise to the remedies set forth in Article 22.
9.2 CHANGES TO PARKING FACILITIES. Landlord shall have the right,
from time to time, without Tenant's consent, to change, alter, add to,
temporarily close or otherwise affect the Parking Facilities in such manner
as Landlord, in its sole discretion, deems appropriate including, without
limitation, the right to designate reserves spaces available only for use by
one or more tenants (however, in such event, those parking space shall still
be deemed Common Area for the purpose of the definition of Operating
Expenses), provided that, except in emergency situations or situations beyond
Landlord's control, Landlord shall provide alternative Parking Facilities.
ARTICLE 10: USE
Tenant shall occupy the Premises solely for the Permitted Use. The
Premises shall not be used for any other purpose, or for any use that would
cause the Premises to be deemed a "place of public accommodation" under the
Americans With Disabilities Act of 1990, without the prior written consent of
Landlord. Tenant shall
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comply, at Tenant's expense, with (i) all present and future laws,
ordinances, regulations and orders of the United States of America, the
Commonwealth of Virginia and any other public or quasi-public federal, state
or local authority having jurisdiction over the Premises, and (ii) any
reasonable requests of Mortgagee or any insurance company providing coverage
with respect to the Premises. Tenant shall not use or occupy the Premises in
any manner that is unlawful or dangerous or that shall constitute waste,
unreasonable annoyance or a nuisance to Landlord or the other tenants of the
Building.
ARTICLE 11: ASSIGNMENT AND SUBLETTING
11.1 ASSIGNMENT. Tenant shall not assign, transfer, mortgage or
otherwise encumber this Lease or any part thereof, nor shall any assignment
or transfer of this Lease be effected by operation of law or otherwise,
without the prior written consent of Landlord which may be granted or
withheld in Landlord's sole discretion. For purposes of the foregoing
prohibitions, a transfer at any one time or from time to time of twenty
percent (20%) or more of an interest in Tenant (whether stock, partnership
interest or other form of ownership or control) by any person(s) or
entity(ties) having an interest in ownership or control of Tenant at the Date
of Lease shall be deemed to be an assignment of this Lease.
11.2 SUBLETTING. Tenant shall not sublet or rent or permit a
third party to occupy or use the Premises, or any part thereof, without the
prior written consent of Landlord, which consent may be granted or withheld
in Landlord's sole discretion.
11.3 EFFECT. If Landlord consents to the proposed assignment,
transfers or subletting, the initial Tenant and any Guarantor shall remain
liable under this Lease and the initial Tenant shall pay to Landlord any
amount of rent or other sums directly or indirectly received by Tenant from
any subtenant, assignee or transferee which exceeds the Rent. Any assignment,
transfer, mortgage, encumbrance, or sublease without Landlord's written
consent shall be voidable by Landlord and, at Landlord's election, constitute
an Event of Default hereunder. Neither the consent by Landlord to any
assignment, transfer, encumbrance or subletting nor the collection or
acceptance by Landlord of rent from any assignee, subtenant or occupant shall
be construed as a waiver or release of the initial Tenant or any Guarantor
from the terms and conditions of this Lease or relieve Tenant or any
subtenant, assignee or other party from obtaining the consent in writing of
Landlord to any further assignment, transfer, encumbrance or subletting.
Tenant hereby assigns to Landlord the rent and other sums due from any
subtenant, assignee or other occupant of the Premises and hereby authorizes
and directs each such subtenant, assignee or other occupant to pay such rent
or other sums directly to Landlord; provided, however, that until the occur-
7
rence of an Event of Default, Tenant shall have the license to continue
collecting such rent and other sums from subtenants or other occupants, but
not from assignees, who shall pay rent and other sums under this Lease
directly to Landlord.
11.4 SURRENDER. Notwithstanding the foregoing, in the event of a
proposed assignment or subletting, Landlord shall have the right, by notice
to Tenant, to terminate this Lease in the event of an assignment as to all of
the Premises and, in the event of a sublease, as to the subleased portion of
the Premises, and to require that all or part, as the case may be, of the
Premises be surrendered to Landlord for the balance of the Term.
ARTICLE 12: MAINTENANCE AND REPAIR
12.1 LANDLORD'S OBLIGATION. As long as no Event of Default has
occurred and is continuing, Landlord, at its sole cost and expense, shall
keep and maintain in good repair and working order the Building, the Common
Area, the mechanical and electrical systems of the Building, and the
equipment within and serving the Premises and the Building (excluding
Tenant's leasehold improvements in the Premises) that are required for the
normal maintenance and operation of the Premises and the Building. Tenant
shall immediately give Landlord written notice of any defect or need for
repairs. After such notice, Landlord shall have a reasonable opportunity to
repair or cure such defect. Landlord's liability with respect to any defects,
repairs or maintenance for which Landlord is responsible under any of the
provisions of this Lease shall be limited to the cost of such repairs or
maintenance or the curing of such defect.
12.2 TENANT'S OBLIGATION. Tenant shall, at its own expense,
maintain all of Tenant's leasehold improvements in the Premises and other
real and personal property within the Premises in good condition, promptly
making all necessary repairs and replacements. Tenant shall repair at its
expense, any and all damage caused by Tenant or Tenant's agents, contractors
or subcontractors to the Building, the Common Area, or the Premises,
including equipment within and serving the Building, ordinary wear and tear
excepted. Notwithstanding the foregoing, Tenant shall bear the cost of, but
shall not itself perform without Landlord's prior consent, any such repairs
which would affect the Building's structure or mechanical or electrical
systems or which would be visible from the exterior of the Building or from
any interior Common Area of the Building. Where Landlord performs such
repairs, Tenant shall promptly pay to Landlord upon demand all costs incurred
in connection therewith plus interest thereon at the Interest Rate from the
demand date until paid. Without the prior written consent of the Landlord,
Tenant shall not have access to the roof of the Building for any purpose
whatsoever.
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12.3 LANDLORD'S RIGHT TO MAINTAIN OR REPAIR. If, within five (5)
days following notice to Tenant, Tenant fails to commence to repair or
replace any damage to the Premises or Building which is Tenant's obligation
to perform, and diligently pursue timely completion of such repair and
replacement. Landlord may, at its option, cause all required maintenance,
repairs or replacements to be made. Tenant shall promptly pay Landlord all
costs incurred in connection therewith plus interest thereon at the Interest
Rate from the due date until paid.
ARTICLE 13: ALTERATIONS
13.1 ALTERATIONS. Tenant shall not make or permit any Alterations
without the prior written consent of Landlord, which consent may be granted
or withheld in Landlord's sole discretion. Landlord may impose any reasonable
conditions to its consent, including, without limitation, (i) delivery to
Landlord of written and unconditional waivers of mechanic's and materialmen's
liens as to the Premises, the Building and the Land for all work, labor and
services to be performed and materials to be furnished, signed by all
contractors, subcontractors, materialmen and laborers participating in the
Alterations, (ii) prior approval of the plans and specifications and Tenant's
contractor(s) with respect to the Alterations, (iii) supervision by
Landlord's representative at Tenant's expense of the Alterations and (iv)
delivery to Landlord of payment and performance bonds naming Landlord and
Mortgagee as obligees. The Alterations shall conform to the requirements of
Landlord's and Tenant's insurers and of the Federal, state and local
governments having jurisdiction over the Premises, shall be performed in
accordance with the terms and provisions of this Lease in a good and
workmanlike manner befitting a first class office building and shall not
adversely affect the value, utility or character of the Premises. If the
Alterations are not performed as herein required, Landlord shall have the
right, at Landlord's option, to halt any further Alterations, or to require
Tenant to perform the Alterations as herein required or to require Tenant to
return the Premises to its condition before such Alterations. Subject to
Section 13.3 herein, all Alterations and fixtures, whether temporary or
permanent in character, made in or upon the Premises either by Tenant or
Landlord, will immediately become Landlord's property and, at the end of the
Term will remain on the Premises without compensation to Tenant.
13.2 LIENS. Notwithstanding the foregoing, if any mechanic's or
materialmen's lien is filed against the Premises, the Building or the Land
for work claimed to have been done for, or materials claimed to have been
furnished to or for the benefit of, Tenant, such lien shall be discharged of
record by Tenant within ten (10) days by the payment thereof or the filing of
any bond required by law. If Tenant shall fail to discharge any such lien,
Landlord may (but shall not be obligated to) discharge the same, the cost of
which shall be paid by Tenant within three (3) days of
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demand by Landlord. Such discharge by Landlord shall not be deemed to waive
or release the default of Tenant in not discharging the same. Neither
Landlord's consent to the Alterations nor anything contained in this Lease
shall be deemed to be the agreement or consent of Landlord to subject
Landlord's interest in the Premises, the Building or the Land to any
mechanic's or materialmen's liens which may be filed in respect of the
Alterations.
13.3 REMOVAL OF ALTERATIONS. Unless Landlord specifies at the time
Landlord approves such Alterations that such Alterations shall be removed by
Tenant, all or any part of the Alterations (including, without limitation,
wall-to-wall carpet and wiring), whether made with or without the consent of
Landlord, shall remain upon the Premises and be surrendered therewith at the
Expiration Date or earlier termination of this Lease as the property of
Landlord without disturbance, molestation or injury. If Landlord so requires
the removal of all or part of the Alterations, Tenant, at its expense, shall
repair any damage to the Premises or the Building caused by such removal
before the expiration or termination of this Lease. If Tenant fails to remove
such Alterations, then Landlord may (but shall not be obligated to) remove
the same and the cost of such removal and repair of any damage caused by the
same, together with any and all damages which Landlord may suffer and sustain
by reason of the failure of Tenant to remove the same, shall be charged to
Tenant and paid upon demand.
13.4 LANDLORD ALTERATIONS. Landlord shall have no obligation to
make any Alterations in or to the Premises, the Building, the Common Area or
the Land. Landlord hereby reserves the right, from time to time, to make
Alterations to the Building, change the Building dimensions, erect additional
stories thereon and attach other buildings and structures thereto, and to
erect such scaffolding and other aids to construction as Landlord deems
appropriate, and no such Alterations, changes, construction or erection shall
constitute an eviction, constructive or otherwise, or permit Tenant any
abatement of Rent or claim.
ARTICLE 14: SIGNS
No sign, advertisement or notice shall be inscribed, painted,
affixed, placed or otherwise displayed by Tenant on any part of the Land or
the outside or the inside (including, without limitation, the windows) of the
Building or the Premises. Landlord shall, at Landlord's expense, place a
Building-standard suite entry sign on the exterior of the Premises
identifying Tenant's occupancy of the Premises, and shall provide
identification of Tenant and its suite number on a main directory in the
lobby on the first floor of the Building. Any other permitted signs shall be
installed and maintained by Landlord at Tenant's sole expense. If any
prohibited sign, advertisement or notice is nevertheless exhibited by Tenant,
Landlord shall have the right to remove the same, and Tenant shall
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pay any and all expenses incurred by Landlord in such removal, together with
interest thereon at the Interest Rate, upon demand. Landlord shall have the
right to prohibit any sign, advertisement, notice or statement to the public
by Tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a first class office building.
ARTICLE 15: TENANT'S EQUIPMENT AND PROPERTY
15.1 MOVING TENANT'S PROPERTY. Any and all damage or injury to the
Premises or the Building caused by moving the property of Tenant into or out
of the Premises, or due to the same being on the Premises, shall be repaired
by Landlord, at the expense of Tenant. Tenant shall promptly remove from the
Common Area any of Tenant's furniture, equipment or other property there
deposited.
15.2 INSTALLING AND OPERATING TENANT'S EQUIPMENT. Without first
obtaining the written consent of Landlord, Tenant shall not install or
operate in the Premises (i) any electrically operated equipment or other
machinery, other than standard office equipment that does not require wiring,
cooling or other service in excess of Building standards, (ii) any equipment
of any kind or nature whatsoever which will require any changes, replacements
or additions to, or changes in the use of, any water, heating, plumbing, air
conditioning or electrical system of the Premises or the Building, or (iii)
any equipment which causes the floor load to exceed the load limits set by
Landlord for the Building. Landlord's consent to such installation or
operation may be conditioned upon the payment by Tenant of additional
compensation for any excess consumption of utilities and any additional power,
wiring, cooling or other service (as determined in the sole discretion of
Landlord) that may result from such equipment. Machines and equipment which
cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein so as to be objectionable to Landlord or any
other Building tenant shall be installed and maintained by Tenant, at its
expense, on vibration eliminators or other devices sufficient to eliminate
such noise and vibration.
ARTICLE 16: RIGHT OF ENTRY
Tenant shall permit Landlord or its Agents, at any time and without
notice as to (i) and (ii) below and upon reasonable notice during normal
business hours as to (iii) and (iv) below, to enter the Premises, without
diminution of Rent, (i) to examine, inspect and protect the Premises and the
Building, (ii) to make such alterations and repairs or perform such
maintenance which in the sole judgment of Landlord may be deemed necessary
or desirable, (iii) to exhibit the same to prospective purchasers of the
Building or to present or future Mortgagees or (iv) to exhibit the same to
prospective tenants during the last twelve (12) months of the Term.
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ARTICLE 17: INSURANCE
17.1 INSURANCE RATING. Tenant shall not conduct or permit any
activity, or place any equipment or material, in or about the Premises, the
Building or the Common Area which will increase the rate of fire or other
insurance on the Building or insurance benefitting any other tenant of the
Building; and if any increase in the rate of insurance is stated by any
insurance company or by the applicable insurance rating bureau to be due to
any activity, equipment or material of Tenant in or about the Premises, the
Building or the Common Area, such statement shall be conclusive evidence that
the increase in such rate is due to the same and, as a result thereof, Tenant
shall pay such increase to Landlord upon demand.
17.2 LIABILITY INSURANCE. Tenant shall, at its sole cost and
expense, procure and maintain throughout the Term a commercial general
liability policy insuring against claims, demands or actions for bodily
injury, death, personal injury, and loss or damage to property arising out of
or in connection with: (i) the Premises; (ii) the condition of the Premises;
(iii) Tenant's operations in, maintenance and use of the Premises, Building
and Common Area, and (iv) Tenant's liability assumed under this Lease. Such
insurance shall have such combined single limit as reasonably required by
Landlord from time to time, but in no event less than Two Million Dollars
($2,000,000.00) per occurrence, on an occurrence basis, and shall be primary
over any insurance carried by Landlord. Endorsements shall be obtained for
cross-liability and contractual liability.
17.3 INSURANCE FOR PERSONAL PROPERTY. Tenant shall, at its sole
cost and expense, procure and maintain throughout the Term a property
insurance policy (written on an "All Risk" basis) insuring all of Tenant's
personal property, including but not limited to equipment, furniture,
fixtures, furnishings and leasehold improvements which are the responsibility
of Tenant, for not less than the full replacement cost of said property. All
proceeds of such insurance shall be used to repair or replace Tenant's
property. In addition, Tenant shall, at its sole cost and expense, procure
and maintain business interruption insurance in an amount not less than the
Base Rent due hereunder.
17.4 REQUIREMENTS OF INSURANCE COVERAGE. All such insurance
required to be carried by Tenant herein shall be with an insurance company
licensed to do business in the Commonwealth of Virginia and rated not lower
than A-XII in the A.M. Best Rating Guide. Such insurance (i) shall contain an
endorsement that such policy shall remain in full force and effect
notwithstanding that the insured has released its right of action against
any party before the occurrence of a loss; (ii) shall name Landlord,
Landlord's managing agent, the Parking Manager, and, at Landlord's request,
any Mortgagee or ground lessor, as additional insured
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parties; and (iii) shall provide that the policy shall not be cancelled,
failed to be renewed or materially amended without at least thirty (30) days'
prior written notice to Landlord and, at Landlord's request, any Mortgagee.
On or before the Commencement Date and, thereafter, not less than thirty (30)
days before the expiration date of the insurance policy, an original of the
policy (including any renewal or replacement policy) or a certified copy
thereof, together with evidence satisfactory to Landlord of the payment of
all premiums for such policy, shall be delivered to Landlord and, at
Landlord's request, to any Mortgagee.
17.5 WAIVER OF SUBROGATION. Each party hereby releases the other
party hereto from liability for any loss or damage to any building, structure
or tangible personal property, or any resulting loss of income, or losses
under worker's compensation laws and benefits, notwithstanding that such
loss, damage or liability may arise out of the negligent or intentionally
tortious act or omission of the other party or its agents, if such loss or
damage is covered by insurance benefitting the party suffering such loss or
damage or was required to be covered by insurance pursuant to this Lease.
Each party hereto shall have a waiver of subrogation clause (providing that
such waiver of right of recovery against the other party shall not impair the
effectiveness of such policy or the insured's ability to recover thereunder)
included in its said policies, and shall promptly notify the other in writing
if such clause cannot be included in any such policy; if such waiver of
subrogation clause shall not be available, then the foregoing waiver of right
of recovery shall be void.
17.6 SECURITY. In the event that Landlord engages the services of
a professional security system for the Building, it is understood that such
engagement shall in no way increase Landlord's liability for occurrences
and/or consequences which such a system is designed to detect or avert and
that Tenant shall look solely to its insurer as set out above for claims for
damages or injury to any person or property.
17.7 LANDLORD'S INSURANCE. Landlord shall procure and maintain
throughout the Term fire and extended coverage insurance on the Building in
such coverage and amounts as reasonably determined by Landlord in its prudent
management of the Building and as necessary to satisfy the requirements of
Landlord's Mortgagee, if any.
ARTICLE 18: LANDLORD SERVICES AND UTILITIES
18.1 ORDINARY SERVICES TO THE PREMISES. As long as no Event of
Default has occurred and is continuing, Landlord shall, at its sole cost and
expense, furnish to the Premises throughout the Term (i) electricity, heating
and air conditioning appropriate for the Permitted Use between 8:00 a.m. and
6:00 p.m., Monday through Friday, and between 9:00 a.m. and 1:00 p.m. on
Saturday (except for
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the following holidays: New Year's Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day and Christmas Day), (ii) reasonable janitorial service,
(iii) regular trash removal from the Premises, (iv) hot and cold water from
points of supply, (v) restrooms as required by applicable code, and (vi)
elevator service, if there is an elevator in the Building, provided that
Landlord shall have the right to remove such elevators from service as may be
required for moving, freight or for servicing or maintaining the elevators or
the Building. Landlord agrees to furnish landscaping and grounds maintenance
and snow clearing for the areas used in common by the tenants of the
Building. Landlord shall be under no responsibility or liability for failure
or interruption in such services caused by breakage, accident, strikes,
repairs or for any other cause or causes beyond the control of Landlord, nor
in any event for any indirect or consequential damages; and failure or
omission on the part of Landlord to furnish such service shall not be
construed as an eviction of Tenant, nor work an abatement of Rent, nor
render Landlord liable in damages, nor release Tenant from prompt fulfillment
of any of the covenants under this Lease.
18.2 AFTER-HOURS SERVICES TO THE PREMISES. If Tenant requires or
requests that the services to be furnished by Landlord (except Building
standard electricity and elevator service) be provided during periods in
addition to the periods set forth in Section 18.1, then Tenant shall obtain
Landlord's consent thereto and, if such consent is granted, shall pay upon
demand Landlord's additional expenses resulting therefrom. Landlord may, from
time to time during the Term, set a per hour charge for after-hours service
which shall include the cost of utility service, labor costs, administrative
costs and a cost for depreciation of the equipment used to provide such
after-hours service.
18.3 UTILITY CHARGES. All telephone and other utility service
furnished to the Premises shall be paid for directly by Tenant except those
furnished by Landlord as listed in Section 18.1 above. In the event that, or
to determine whether, Tenant's use of utility services exceeds on a pro rata
basis Building standard electricity, heating and air conditioning normally
used by tenants in the Building, Landlord reserves the right separately to
meter or monitor the utility services provided to the Premises. If Tenant's
use of such utilities exceeds the normal use by other tenants in the
Building, Landlord may charge Tenant for such excess use in accordance with
Section 18.2 above, and the cost of any such meter shall be borne by Tenant.
ARTICLE 19: LIABILITY OF LANDLORD
19.1 NO LIABILITY. Except where due to Landlord or its Agents'
gross negligence or willful misconduct, Landlord and its Agents shall not be
liable to Tenant or its Agents for, and Tenant, for itself and its Agents,
does hereby release Landlord and its Agents from liability for, any damage,
compensation or claim
14
arising from (i) the necessity of repairing any portion of the Premises or
the Building or the Common Area or any structural defects thereto, (ii) any
interruption in the use of the Premises or the Common Area for any reason
including any interruption or suspension of utility service, (iii) fire or
other casualty or personal or property injury, damage or loss resulting from
the use or operation (by Landlord, Tenant, or any other person whomsoever) of
the Premises or the Building or the Common Area, (iv) the termination of this
Lease, (v) robbery, assault or theft, or (vi) any leakage in the Premises or
the Building from water, rain, snow or other cause whatsoever. No such
occurrence shall give rise to diminution or abatement or Rent or constructive
eviction. Notwithstanding the foregoing, any goods, automobiles, property or
personal effects stored or placed by Tenant or its Agents in or about the
Premises, the Building or the Common Area shall be at the sole risk of
Tenant; Tenant hereby expressly waives its right to recover against Landlord
and its Agents therefor. Tenant hereby waives any claim it might have against
Landlord or its Agents for any consequential damages or business losses
sustained by Tenant arising out of the loss or damage to any person or
property of Tenant, or any interruption in the use of the Premises or the
Common Area, for any reason. Tenant acknowledges its obligation to insure
against such losses and damages.
19.2 INDEMNITY. Tenant shall indemnify, defend, protect and hold
Landlord and its Agents harmless from and against any and all damage, claim,
liability, cost or expense (including, without limitation, attorneys' or
other professionals' fees) of every kind and nature (including, without
limitation, those arising from any injury or damage to any person, property
or business) incurred by or claimed against Landlord or its Agents, directly
or indirectly, as a result of, arising from or in connection with (i)
Tenant's or its Agents' use and occupancy of the Premises, the Building or
the Common Area; (ii) Tenant's breach of any provision of this Lease; or
(iii) any act, omission or negligence of Tenant or its Agents.
ARTICLE 20: RULES AND REGULATIONS
Tenant and its Agents shall at all times abide by and observe the
Rules and Regulations attached hereto as EXHIBIT D and any amendments thereto
that may be promulgated from time to time by Landlord for the operation and
maintenance of the Building and the Common Area and the Rules and Regulations
shall be deemed to be covenants of the Lease to be performed and/or observed
by Tenant. Nothing contained in this Lease shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations, or the
terms or provisions contained in any other lease, against any other tenant of
the Building. Landlord shall not be liable to Tenant for any violation by any
party of the Rules and Regulations or the terms of any other Building lease.
If there is any inconsistency between this Lease and the Rules and Regu-
15
lations, this Lease shall govern. Landlord reserves the right to amend and
modify the Rules and Regulations as it deems necessary.
ARTICLE 21: DAMAGE; CONDEMNATION
21.1 DAMAGE TO THE PREMISES. If the Premises shall be damaged by
fire or other cause without the fault or negligence of Tenant or its Agents,
Landlord shall diligently and as soon as practicable after such damage occurs
(taking into account the time necessary to effect a satisfactory settlement
with any insurance company involved) repair such damage at the expense of
Landlord; provided, however, that Landlord's obligation to repair such damage
shall not exceed the proceeds of insurance available to Landlord (reduced by
any proceeds retained pursuant to the rights of Mortgagee). Notwithstanding
the foregoing, (i) if more than twenty percent (20%) of the floor area of the
Premises or the Building is damaged or destroyed, or (ii) if the Premises or
the Building is damaged by fire or other cause to such an extent that, in
Landlord's sole judgment, the damage cannot be substantially repaired within
one hundred eighty (180) days after the date of such damage, or (iii) if the
Premises are damaged during the last six (6) months of the Term, then
Landlord may terminate this Lease by notice to Tenant within sixty (60) days
from the date of such damage. During the period that Tenant is deprived of
the use of the damaged portion of the Premises, and provided such damage is
not the consequence of the fault or negligence of Tenant or its Agents, Base
Rent shall be reduced by the ratio that the rentable square footage of the
Premises damaged bears to the total rentable square footage of the Premises
before such damage. All injury or damage to the Premises or the Building
resulting from the fault or negligence of Tenant or its Agents shall be
repaired by Tenant, at Tenant's expense, and Rent shall not abate. If Tenant
shall fail to do so or if Landlord shall so elect, Landlord shall have the
right to make such repairs, and any expense so incurred by Landlord,
together with interest thereon at the Interest Rate, shall be paid by Tenant
upon demand. Notwithstanding anything herein to the contrary, Landlord shall
not be required to rebuild, replace or repair any non-standard tenant
improvements, tenant extras or Alterations or any personal property of Tenant.
21.2 CONDEMNATION. If the whole or a Substantial Part of the
Premises or the Building shall be taken or condemned by any governmental or
quasi-governmental authority for any public or quasi-public use or purpose
(including, without limitation, sale under threat or such a taking), then the
Term shall cease and terminate as of the date when title vests in such
governmental or quasi-governmental authority, and Rent shall be prorated to
the date when title vests in such governmental or quasi-governmental
authority. If less than a Substantial Part of the Premises is taken or
condemned by any governmental or quasi-governmental authority for any public
or quasi-public use or purpose (including, without limitation, sale under
threat of such a taking), Base Rent
16
shall be reduced by the ratio that the portion so taken bears to the
rentable square footage of the Premises before such taking, effective as of
the date when title vests in such governmental or quasi-governmental
authority, and this Lease shall otherwise continue in full force and effect.
Tenant shall have no claim against Landlord (or otherwise) as a result of
such taking; and Tenant hereby agrees to make no claim against the condemning
authority for any portion of the amount that may be awarded as compensation
or damages as a result of such taking; provided, however, that Tenant may, to
the extent allowed by law, claim an award for moving expenses and for the
taking of any of Tenant's property (other than its leasehold interest in the
Premises) which does not, under the terms of this Lease, become the property
of Landlord at the termination hereof, as long as such claim is separate and
distinct from any claim of Landlord and does not diminish Landlord's award.
Tenant hereby assigns to Landlord any right and interest it may have in any
award for its leasehold interest in the Premises.
ARTICLE 22: DEFAULT
22.1 EVENTS OF DEFAULT. Each of the following shall constitute an
Event of Default: (i) Tenant fails to pay Rent when due and such failure
continues for five (5) days after notice from Landlord; provided that no such
notice shall be required if at least two such notices shall have been given
during the same Lease Year and, in such event, it shall be deemed an Event of
Default if such failure continues for five (5) days after such Rent is due;
(ii) Tenant fails to observe or perform any other term, condition or covenant
herein binding upon or obligating Tenant within fifteen (15) days after
notice from Landlord, or, if such failure cannot reasonably be corrected
within fifteen (15) days, if Tenant does not begin to correct the failure
within fifteen (15) days after such notice and/or does not thereafter
diligently pursue the correction of such failure to completion within
thirty (30) days after said notice from Landlord; (iii) Tenant abandons or
vacates the Premises; (iv) Tenant makes or consents to a general assignment
for the benefit of creditors or a common law composition of creditors, or a
receiver of the Premises or all or substantially all of Tenant's assets is
appointed, or (v) Tenant files a voluntary petition in any bankruptcy or
insolvency proceeding, or an involuntary petition in any bankruptcy or
insolvency proceeding is filed against Tenant and is not discharged by Tenant
within sixty (60) days.
22.2 LANDLORD'S REMEDIES. Upon the occurrence of an Event of
Default, Landlord, at its option, without further notice or demand to Tenant,
in addition to all other rights and remedies provided in this Lease, at law
or in equity, shall have the right to elect any or all of the following
remedies:
17
(i) Terminate this Lease and Tenant's right of possession of the
Premises, and recover all damages to which Landlord is entitled under law,
specifically including but without limitation, all of Landlord's expenses of
reletting (including, without limitation, rental concessions to new tenants,
repairs, Alterations, legal fees and brokerage commissions). If Landlord
elects to terminate this Lease, every obligation of the parties shall cease
as of the date of such termination, except that Tenant shall remain liable
for payment of Rent and performance of all other terms and conditions of this
Lease to the date of termination.
(ii) Terminate Tenant's right of possession of the Premises
without terminating this Lease, in which event Landlord may, but shall not be
obligated to, relet the Premises, or any part thereof, for the account of
Tenant, for such rent and term and upon such other conditions as are
acceptable to Landlord. For purposes of such reletting, Landlord is authorized
to redecorate, repair, alter and improve and Premises to the extent necessary
in Landlord's sole discretion. Until Landlord relets the Premises, Tenant
shall remain obligated to pay Rent to Landlord as provided in this Lease. If
and when the Premises are relet and if a sufficient sum is not realized from
such reletting after payment of all Landlord's expenses of reletting
(including, without limitation, rental concessions to new tenants, repairs,
Alterations, legal fees and brokerage commissions) to satisfy the payment of
Rent due under this Lease for any month, Tenant shall pay Landlord any such
deficiency upon demand. Tenant agrees that Landlord may file suit to recover
any sums due Landlord under this Section from time to time and that such suit
or recovery of any amount due Landlord shall not be any defense to any
subsequent action brought for any amount not previously reduced to judgment
in favor of Landlord;
(iii) Terminate this Lease and Tenant's right of possession of the
Premises, and recover from Tenant the net present value of the Rent due from
the date of termination until the Expiration Date, discounted at the lesser
of the Interest Rate as of the date of termination or six percent (6%) per
annum.
(iv) Re-enter and repossess the Premises and remove all persons
and effects therefrom, by summary proceeding, ejectment or other legal action
or by using such force as may be necessary. Landlord shall have no liability
by reason of any such re-entry, repossession or removal; and/or
(v) Recover from Tenant, to the extent permitted under the laws
of the Commonwealth of Virginia, the value and/or cost of all concessions to
Tenant under this Lease, if any.
22.3 Rights Upon Possession. If Landlord takes possession pursuant to
this Article, with or without terminating this
18
Lease, Landlord may, at its option, enter into the Premises, remove Tenant's
Alternations, signs, personal property, equipment and other evidences of
tenancy, and store them at Tenant's risk and expense or dispose of them as
Landlord may see fit, and take and hold possession of the Premises; provided,
however, that if Landlord elects to take possession only without terminating
this Lease, such entry and possession shall not terminate this Lease or
release Tenant or any Guarantor, in whole or in part, from the obligation to
pay the Rent reserved hereunder for the full Term or from any other
obligation under this Lease or any guaranty thereof.
22.4 No Waiver. If Landlord shall institute proceedings against Tenant
and a compromise or settlement thereof shall be made, the same shall not
consititute a waiver of any other covenant, condition or agreement herein
contained, nor of any of Landlord's rights hereunder. No waiver by Landlord
of any breach shall operate as a waiver of such covenant, condition or
agreement, or operate as a waiver of such covenant, condition or agreement
itself, or of any subsequent breach thereof. No payment of Rent by Tenant or
acceptance of Rent by Landlord shall operate as a waiver of any breach or
default by Tenant under this Lease. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly installment of Rent herein
stipulated shall be deemed to be other than a payment on account of the
earliest unpaid Rent, nor shall any endorsement or statement on any check or
communication accompanying a check for the payment of Rent be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or to
pursue any other remedy provided in this Lease. No re-entry by Landlord, and
no acceptance by Landlord of keys from Tenant, shall be considered an
acceptance of a surrender of the Lease.
22.5 Right of Landlord to Cure Tenant's Default. If an Event of Default
shall occur, then Landlord may (but shall not be obligated to) make such
payment or do such act to cure the Event of Default, and charge the amount of
the expense thereof, together with interest thereon at the Interest Rate, to
Tenant. Such payment shall be due and payable upon demand; however, the
making of such payment or the taking of such action by Landlord shall not be
deemed to cure the Event of Default or to stop Landlord from the pursuit of
any remedy to which Landlord would otherwise be entitled. Any such payment
made by Landlord on Tenant's behalf shall bear interest until paid at the
Interest Rate.
22.6 Late Payment. If Tenant fails to pay any Rent within five (5) days
after such Rent becomes due and payable, Tenant shall pay to Landlord a late
charge of five percent (5%) of the amount of such overdue Rent. In addition,
any such late Rent payment shall bear interest from the date such Rent became
due and payable to the date of payment thereof by Tenant at the Interest
19
Rate. Such late charge and interest shall be due and payable within two (2)
days after written demand from Landlord.
22.7 Landlord Default. If Landlord shall fail to keep or perform any
of its obligations under this Lease, then Tenant may (but shall not be
obligated to do so) upon the continuance of such failure on Landlord's part
for twenty (20) days after Landlord's receipt of notice from Tenant
specifying the failure (or, in the case of any such failure which cannot
with due diligence be cured within twenty (20) days, within such additional
period, if any, as may be reasonably required by Landlord to cure such
failure with due diligence), and without waiving or releasing Landlord from
any obligation, make such payment or perform such obligation and all sums so
paid by Tenant and all necessary and incidental costs and expenses, including
reasonable attorney's fees paid to independent legal counsel, incurred by
Tenant in making such payment or performing such obligation, together with
interest thereon at the Interest Rate from the date of payment, shall be paid
by Landlord to Tenant on demand, and if not so paid by Landlord, Tenant shall
have the right to pursue any legal remedies available to it to collect
payment, but shall not be entitled to offset such payment against Rent
thereafter payable under this Lease.
ARTICLE 23: MORTGAGES
23.1 Subordination. This Lease is subject and subordinate to all
ground or underlying leases and to any first Mortgage(s) which may now or
hereafter affect such ground or underlying leases or the Land or the Building
and to all renewals, modifications, consolidations, replacements and
extensions thereof. This subordination shall be self-operative; however, in
confirmation thereof, Tenant shall execute promptly any instrument that
Landlord or any first Mortgagee may request confirming such subordination.
Notwithstanding the foregoing, before any foreclosure sale under a Mortgage,
the Mortgagee shall have the right to subordinate the Mortgage to this Lease,
and, in the event of a foreclosure, this Lease may continue in full force and
effect and Tenant shall attorn to and recognize as its landlord the purchaser
of Landlord's interest under this Lease. Tenant shall, upon the request of a
Mortgagee or purchaser at foreclosure, execute, acknowledge and deliver any
instrument that has for its purpose and effect the subordination of the lien
of any Mortgage to this Lease or Tenant's attornment to such Purchaser.
Tenant waives its rights under any statute or law now or hereafter in effect
which may give Tenant any right to terminate or otherwise adversely affect
this Lease in the event any foreclosure proceeding ordered in lieu of
foreclosure is brought under any Mortgage.
23.2 Mortgagee Protection. Tenant agrees to give any Mortgagee by
certified mail, return receipt requested, a copy of any notice of default
served upon Landlord, provided that before such notice Tenant has been
notified in writing of the address of
20
such Mortgagee. Tenant further agrees that if Landlord shall have failed to
cure such default within the time provided for in this Lease, then Mortgagee
shall have an additional thirty (30) days within which to cure such default;
provided, however, that if such default cannot be reasonably cured within
that time, then such Mortgagee shall have such additional time as may be
necessary to cure such default so long as Mortgagee has commenced and is
diligently pursuing the remedies necessary to cure such default (including,
without limitation, the commencement of foreclosure proceedings, if
necessary), in which event this Lease shall not be terminated or Rent abated
while such remedies are being so diligently pursued. In the event of the sale
of the Land or the Building, by foreclosure or deed in lieu thereof, the
Mortgagee or purchaser at such sale shall be responsible for the return of
the Security Deposit only to the extent that such Mortgagee or purchaser
actually received the Security Deposit.
23.3 Modification Due to Financing. If, in connection with obtaining
construction or permanent financing for the Premises, the Building or the
Land, any lender (or Mortgagee) shall request reasonable modifications of
this Lease as a condition to such financing, Tenant shall promptly execute a
modification of this Lease, provided such modifications do not materially
increase the financial obligations of Tenant hereunder or materially
adversely affect the leasehold interest hereby created or Tenant's reasonable
use and enjoyment of the Premises. Tenant shall, prior to execution and
throughout the Term, upon request from time to time, provide such financial
information and documentation about itself to Landlord or Mortgagee as may be
requested.
ARTICLE 24: SURRENDER; HOLDING OVER
24.1 Surrender of the Premises. Tenant shall peaceably surrender the
Premises to Landlord on the Expiration Date or earlier termination of this
Lease, in broom-clean condition and in as good condition as when Tenant took
possession, including, without limitation, the repair of any damage to the
Premises caused by the removal of any of Tenant's personal property or trade
fixtures from the Premises, except for reasonable wear and tear and loss by
fire or other casualty not caused by Tenant or its Agents. Any of Tenant's
personal property left on or in the Premises, the Building or the Common Area
after the Expiration Date or earlier termination of this Lease shall be
deemed to be abandoned, and, at Landlord's option, title shall pass to
Landlord under this Lease.
24.2 Holding Over. In the event that Tenant shall not immediately
surrender the Premises to Landlord on the Expiration Date or earlier
termination of this Lease, Tenant shall be deemed to be a month to month
tenant (which tenancy may be cancelled upon thirty (30) days advance notice
by either party) upon all of the terms and provisions of this Lease, except
that, for the first
21
twelve (12) months of any holdover period, annual Base Rent shall increase to
$27,825.45 and shall be payable in equal monthly installments of $2,318.79,
and thereafter, the monthly Base Rent during the remainder of any holdover
period shall be $4,673.58. Notwithstanding the foregoing, if Tenant shall
hold over for a period in excess of twelve (12) months following the
Expiration Date or earlier termination of this Lease, and Landlord shall
desire to regain possession of the Premises, then Landlord 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 shall indemnify
Landlord against all liabilities and damages sustained by Landlord by reason
of tenant's retention of possession of the Premises beyond any permitted
holdover period.
ARTICLE 25: QUIET ENJOYMENT
Landlord covenants that if Tenant shall pay Rent and perform all of the
terms and conditions of this Lease to be quietly performed by Tenant, Tenant
shall during the Term peaceably and quietly occupy and enjoy possession of
the Premises without molestation or hindrance by Landlord or any party
claiming through or under Landlord, subject to the provisions of this Lease
and any Mortgage to which this Lease is subordinate and easements, conditions
and restrictions of record affecting the Land.
ARTICLE 26: HAZARDOUS MATERIALS
26.1 Prohibition. Tenant shall not cause or permit any Hazardous
Material to be brought upon, kept or used in or about the Premises by Tenant,
its agents, employees, contractors or invitees, except for minimal quantities
of such Hazardous Materials as is necessary for the operation of Tenant's
office equipment.
26.2 Compliance. Any Hazardous Material permitted on the Premises as
provided in Section 26.1, and all containers therefor, shall be used, kept,
stored and disposed of in a manner that complies with all federal, state and
local laws or regulations applicable to any such Hazardous Material.
26.3 No Contamination. Tenant shall not discharge, leak or emit, or
permit to be discharged, leaked or emitted, any material into the atmosphere,
ground, sewer system or any body of water, if such material (as reasonably
determined by the Landlord or any government authority) does or may, pollute
or contaminate the same, or may adversely affect (a) the health, welfare or
safety or persons, whether located on the Premises or elsewhere, or (b) the
condition, use or enjoyment of the Building or any other real or personal
property.
26.4 Disclosure. At the commencement of each Lease Year, Tenant shall
disclose to Landlord the names and approximate amounts of all Hazardous
Material which Tenant intends to store, use or
22
dispose of on the Premises in the coming Lease Year. In addition, at the
commencement of each Lease Year, beginning with the second Lease Year, Tenant
shall disclose to Landlord the names and amounts of all Hazardous Materials
which were actually used, stored or disposed of on the Premises if such
materials were not previously identified to Landlord at the commencement of
the previous Lease Year.
26.5 Definition. As used herein, the term "Hazardous Material" means
(a) any "hazardous waste" as defined by the Resource Conservation and
Recovery Act of 1976, as amended from time to time, and regulations
promulgated thereunder; (b) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended from time to time, and regulations promulgated thereunder; (c) any
"oil, petroleum products, and their byproducts; and (d) any substance which
is or becomes regulated by any federal, state or local governmental authority.
26.6 Indemnity. Tenant hereby agrees that it shall be fully liable for
all costs and expenses related to the use, storage and disposal of Hazardous
Material kept on the Premises by the Tenant, and the Tenant shall give
immediate notice to the Landlord of any violation or potential violation of
the provisions of this Article 26. Tenant shall defend, indemnify and hold
harmless Landlord and its Agents, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs, or expenses
(including without limitation, attorney and consultant fees, court costs and
litigation expenses) of whatever kind or nature, known or unknown, contingent
or otherwise, arising out of nature, known or unknown, contingent or
otherwise, arising out of or in any way related to (a) the presence,
disposal, release, or threatened release of any such Hazardous Material which
is on, from, or affecting the soil, water, vegetation, buildings, personal
property, persons, animals, or otherwise; (b) any personal injury (including
wrongful death) or property damage (real or personal) arising out of or
related to such Hazardous Material; (c) any lawsuit brought or threatened,
settlement reached or government order relating to such Hazardous Material;
and/or (d) any violation of any laws applicable thereto. The provisions of
this Section 26.6 shall be in addition to any other obligations and
liabilities Tenant may have to Landlord at law or equity and shall survive
the transactions contemplated herein and shall survive the termination of
this Lease.
ARTICLE 27: MISCELLANEOUS
27.1 No Representations by Landlord. Tenant acknowledges that neither
Landlord or its Agents nor any broker has made any representation or promise
with respect to the Premises, the Building, the Land or the Common Area,
except as herein expressly set forth, and no rights, privileges, easements or
licenses are acquired by Tenant except as herein expressly set forth. Tenant,
23
by taking possession of the Premises shall accept the Premises and the
Building in their condition existing on the date of possession, and such
taking of possession shall be conclusive evidence that the Premises and the
Building are in good and satisfactory condition at the time of such taking of
possession.
27.2 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between Landlord and
Tenant, or to create any other relationship between Landlord and Tenant other
than that of landlord and tenant.
27.3 Brokers. Landlord recognizes Broker(s) as the sole broker(s)
procuring this Lease and shall pay Broker(s) a commission therefor pursuant
to a separate agreement between Broker(s) and Landlord. Tenant represents and
warrants to Landlord that it has not employed any broker, agent or finder
other than Broker(s) relating to this Lease. Tenant shall indemnify and hold
Landlord harmless, from and against any claim for brokerage or other
commission arising from or out of any breach of Tenant's representation and
warranty.
27.4 Estoppel Certificate. Tenant shall, without charge, at any time and
from time to time, within five (5) days after request therefor by Landlord,
Mortgagee, any purchaser of the Land or the Building or any other interested
person, execute, acknowledge and deliver to such requesting party a written
estoppel certificate certifying, as of the date of such estoppel certificate,
the following: (i) that this Lease is unmodified and in full force and effect
for if modified, that the Lease is in full force and effect as modified and
setting forth such modifications); (ii) that the Term has commenced (and
setting forth the Commencement Date and Expiration Date); (iii) that Tenant
is presently occupying the Premises; (iv) the amounts of Base Rent and
Additional Rent currently due and payable by Tenant; (v) that any Alterations
required by the Lease to have been made by Landlord have been made to the
satisfaction of Tenant; (vi) that there are no existing set-offs, charges,
liens, claims or defenses against the enforcement of any right hereunder,
including, without limitation, Base Rent or Additional Rent (or, if alleged,
specifying the same in detail); (vii) that no Base Rent (except the first
installment thereof) has been paid more than thirty (30) days in advance of
its due date; (viii) that Tenant has no knowledge of any then uncured default
by Landlord of its obligations under this Lease (or, if Tenant has such
knowledge, specifying the same in detail); (ix) that Tenant is not in
default; (x) that the address to which notices to Tenant should be sent is as
set forth in the Lease (or, of not, specifying the correct address); and (xi)
any other certifications requested by Landlord. In addition, within five (5)
days after request by Landlord, Tenant shall deliver to Landlord audited
financial statements of Tenant for its most
24
recently ended fiscal year and interim unaudited financial statements for its
most recently ended quarter.
27.5 Waiver of Jury Trial. Tenant hereby waives trial by jury in any
action, proceeding or counterclaim brought by Landlord against Tenant with
respect to any matter whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant hereunder or Tenant's use
or occupancy of the Premises. In the event Landlord commences any proceedings
for nonpayment of Rent, Tenant shall not interpose any counterclaims. This
shall not, however, be construed as a waiver of Tenant's right to assert such
claims in any separate action brought by Tenant.
27.6 Notices. All notices or other communications hereunder shall be in
writing and shall be deemed duly given if delivered in person or by Federal
Express or other reputable overnight delivery service, or upon the earlier of
receipt, if mailed by certified or registered mail, or three (3) days after
certified or registered mailing, return receipt requested, postage prepaid,
addressed and sent, if to Landlord to Landlord's Address specified in
Section 1.15 or if to Tenant to Tenant's Address specified in Section 1.16.
Landlord and Tenant may from time to time by written notice to the other
designate another address for receipt of future notices. Notices from
Landlord's managing agent shall be deemed notices from Landlord.
27.7 Invalidity of Particular Provisions. If any provisions of this
Lease or the application thereof to any person or circumstances shall to any
extent be invalid or unenforceable, the remainder of this Lease, or the
application of such provision to persons or circumstances other than
those to which it is invalid or unenforceable, shall not be affected thereby,
and each provision of this Lease shall be valid and be enforced to the full
extent permitted by law.
27.8 Gender and Number. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number or gender as the context may require.
27.9 Benefit and Burden. Subject to the provisions of Article 11 and
except as otherwise expressly provided, the provisions of this Lease shall be
binding upon, and shall inure to the benefit of, the parties hereto and each
of their respective representatives, heirs, successors and assigns. Landlord
may freely and fully assign its interest hereunder, and following any such
assignment shall be fully released from any and all liabilities and
obligations under this Lease thereafter accruing.
27.10 Entire Agreement. This Lease (which includes the Exhibits and
Riders, if any, attached hereto) contains and embodies the entire agreement
of the parties hereto, and no representations,
25
inducements or agreements, oral or otherwise, between the parties not
contained in this Lease shall be of any force or effect. This Lease (other
than the Rules and Regulations, which may be changed from time to time as
provided herein) may not be modified, changed or terminated in whole or in
part in any manner other than by an agreement in writing duly signed by
Landlord and Tenant.
27.11 Authority.
(i) If Tenant signs as a corporation, the person executing this
Lease on behalf of Tenant hereby represents and warrants that Tenant is a
duly formed and validly existing corporation, in good standing, qualified to do
business in the Commonwealth of Virginia, that the corporation has full power
and authority to enter into this Lease and that he or she is authorized to
execute this Lease on behalf of the corporation.
(ii) If Tenant signs as a partnership, the person executing this
Lease on behalf of Tenant hereby represents and warrants that Tenant is a
duly formed, validly existing partnership qualified to do business in the
Commonwealth of Virginia, that the partnership has full power and authority to
enter into this Lease, and that he or she is authorized to execute this Lease
on behalf of the partnership.
27.12 Attorneys' Fees. If, as a result of any default of Landlord or
Tenant in its performance of any of the provisions of this Lease, the other
party uses the services of an attorney in order to secure compliance with
such provisions or recover damages therefor, or to terminate this Lease or
evict Tenant, the non-prevailing party shall reimburse the prevailing party
upon demand for any and all attorneys' fees and expenses so incurred by the
prevailing party.
27.13 Interpretation. This Lease is governed by the laws of the
Commonwealth of Virginia.
27.14 No Personal Liability; Sale. Neither Landlord nor its Agents,
whether disclosed or undisclosed, shall have any personal liability under any
provision of this Lease. In the event of a judgment in favor of Tenant which
remains unpaid, Tenant's right to redress, execution and levy shall be
limited to Landlord's equity in the Building as described in Article 1
hereof. In the event that the original Landlord hereunder, or any successor
owner of the Building, shall sell or convey the Building, all liabilities and
obligations on the part of the original Landlord, or such successor owner,
under this Lease occurring thereafter shall terminate as of the day of such
sale, and thereupon all such liabilities and obligations shall be binding on
the new owner. Tenant agrees to attorn to such new owner. Any successor to
Landlord's interest shall not be bound by (i) any payment of Base Rent for
more than one (1) month in advance, except for the payment of the first
26
installment of Base Rent or (ii) as to any Mortgagee or any purchaser at
foreclosure, any amendment or modification of this Lease made without the
consent of such Mortgagee.
27.15 Time of the Essence. Time is of the essence as to Tenant's
obligations contained in this Lease.
27.16 Force Majeure. Except for Tenant's obligations to pay Rent under
this Lease, neither Landlord nor Tenant shall be required to perform any of
its obligations under this Lease, nor shall such party be liable for loss or
damage for failure to do so, nor shall the other party thereby be released
from any of its obligations under this Lease, where such failure by the
non-performing party arises from or through acts of God, strikes, lockouts,
labor difficulties, explosions, sabotage, accidents, riots, civil commotions,
acts of war, results of any warfare or warlike conditions in this or any
foreign country, fire or casualty, legal requirements, energy shortage or
other causes beyond the reasonable control of the non-performing party,
unless such loss or damage results from the will full misconduct or gross
negligence of the non-prevailing party.
27.17 Headings. Captions and headings are for convenience or reference
only.
27.18 Memorandum of Lease. Tenant shall, at the request of Landlord,
execute and deliver a memorandum of lease in recordable form. Tenant shall
not record this Lease or any such memorandum of this Lease.
27.19 Landlord's Relocation Option. At any time during the Term,
provided at such time Tenant's Premises consist of 5,000 rentable square feet
or less, Landlord shall have the option to relocate Tenant, at no direct cost
of Tenant, to space comparable to the Premises elsewhere in the Building,
provided Landlord gives Tenant three (3) months' written notice. Upon
relocation, such new space shall be deemed to be the "Premises" hereunder,
and Tenant's Proportionate Share shall be recalculated by Landlord to equal
that fraction, the numerator of which is the rentable square footage of the
Premises and the denominator of which is the rentable square footage of the
Building (as reasonably determined by Landlord).
27.20 Attorney-in-Fact. If Tenant fails or refuses to execute and
deliver any instrument or certificate required to be delivered by Tenant
hereunder (including, without limitations, any instrument or certificate
required under Article 23 or Section 27.4 hereof) within the time periods
required herein, then Tenant hereby appoints Landlord as its attorney-in-fact
with full power and authority to execute and deliver such instrument or
certificate for and in the name of Tenant.
27
27.21 Effectiveness. The execution of this Lease by Tenant and delivery of
the same and of any Trust or Security Deposit to Landlord or its Agent does
not constitute a reservation of or option for the Premises or an agreement
to enter into a lease, and this Lease shall become effective only if and when
Landlord executes and delivers the same to Tenant; provided, however, that
execution and delivery of this Lease to Landlord or its Agent by Tenant shall
constitute an irrevocable offer by Tenant to lease the Premises on the terms
and conditions herein contained, which offer may not be withdrawn or revoked
for thirty (30) days after such execution and delivery.
27.22 Tenant's Right to Use Conference Room Facility. Throughout the Term
of this Lease, during normal business hours (8:00 a.m. - 6:00 p.m., Monday
through Friday, and 9:00 a.m. - 1:00 p.m. on Saturday), Tenant shall have the
right to use, on a first-come, first-serve basis along with other tenants in
the Building, without charge, the conference room facility located on the
second floor of the Building. If Tenant uses the conference room facility
other than during normal business hours, Tenant shall be responsible for
paying to Landlord any costs directly attributable to Tenant's use of such
facility.
27.23 Right of First Refusal on Adjacent Space. Provided Tenant is not
then in default hereunder, Landlord covenants and agrees that if Landlord
intends to lease the space located in the Building and immediately adjacent
to the Premises to a third-party and if Wilder & Gregory elects not to lease
such space from Landlord, Landlord shall give Tenant written notice of the
terms and conditions pursuant to which Landlord will agree to lease such
space to the third party. Tenant shall have ten (10) days following receipt
of such notice from Landlord in which to notify Landlord of its intent to
lease such space from Landlord pursuant to the terms and conditions contained
in Landlord's notice to Tenant. If Tenant fails to notify Landlord of its
intent to lease such space within such ten (10) day period or thereafter
fails to enter into a lease for such space within thirty (30) days after the
date Tenant notifies Landlord of its intent to lease such space, time being
of the essence in both instances, Tenant shall be deemed to have waived its
right of first refusal as to such third-party offer, and Landlord shall be
permitted to enter into a lease for such space with such third-party upon
substantially the same terms and conditions as contained in Landlord's notice
to Tenant.
27.24 Option on Adjacent Space. Provided Tenant is not then in default
hereunder, Tenant shall have the option, at any time during the Term of this
Lease, upon thirty (30) days advance written notice to Landlord, to lease the
space located in the Building and immediately adjacent to the Premises from
Landlord upon the same terms and conditions as set forth herein, including,
without limitation, the rental rate set forth herein and applicable to the
Premises. Notwithstanding the foregoing, if , after
28
receiving Tenant's notice of its intent to exercise its option to lease the
space located in the Building and immediately adjacent to the Premises,
Landlord receives notice from Wilder & Gregory that it has elected to lease
such space from Landlord, Tenant's option to lease such space shall terminate
and be of no further force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
29
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under
seal as of the Date of Lease.
ATTEST/WITNESS: LANDLORD:
E & M REALTY HOLDING COMPANY
James M Walsh By: David Chen [SEAL]
- ------------------- -----------
Name: James M Walsh David Chen
-------------- Vice President
December 30, 1997
ATTEST/WITNESS: TENANT:
IMTEK
A Ray Brady By: Michael L Laws [SEAL]
- ------------------ ---------------------
Name: A. Ray Brady Name: Michael Laws
------------- -------------
EXHIBIT A
(Plan Showing Premises)
31
EXHIBIT B
WORK AGREEMENT
[INTENTIONALLY DELETED]
EXHIBIT C
PARKING
During the Term of this Lease, Tenant shall have the right to enter into
one (1) automobile parking contract for parking in that portion of the
Parking Facilities consisting of the underground garage located in the
Building provided by Landlord's Parking Manager (which is currently Virginia
Parking Service, Inc., and which term shall refer to the person or entity
which during the Term of the Lease leases the Parking Facilities from
Landlord and operates the Parking Facilities) at such monthly rates as are
being customarily charged by the Parking Manager for similar covered parking
in the City of Richmond, Virginia, for use by Tenant and its employees, and
subject to the rules and regulations established by Landlord or the Parking
Manager from time to time. Tenant acknowledges and agrees that the automobile
parking contract will provide only a license to park one (1) automobile
within the particular Parking Facility on an unreserved, first-come,
first-served basis, and that Landlord or Parking Manager shall have the right
to alter or adjust the size, location, elevation, and/or nature of the
parking areas within the Parking Facilities, and shall have the right to
designate certain spaces within the Parking Facilities as "reserved" for
specific users. In addition to the foregoing, if requested by Tenant,
Landlord covenants and agrees to assist Tenant in obtaining from the Parking
Manager additional parking for Tenant and its employees in other Parking
Facilities within a two (2) block radius of the Building. Such additional
spaces will be provided by the Parking Manager at such monthly rates as are
being customarily charged by the Parking Manager for similar parking in the
City of Richmond, Virginia.
Landlord reserves the right, at any time and from time to time, to close
temporarily all or any portions of the Parking Facilities when in Landlord's
or Parking Manager's reasonable judgment any such closing is necessary or
desirable (a) to make repairs or changes to effect construction, (b) to
prevent the acquisition of public rights in such area, (c) to discourage
unauthorized parking, or (d) to protect or preserve natural persons or
property. Landlord or Parking Manager may do such other acts in and to the
Parking Facilities as may be desirable to improve or maintain same. Temporary
unavailability of parking spaces within the Parking Facilities shall not
constitute an eviction or give rise to any claim in favor of Tenant for loss
or damage under this Lease. If at any time during the Term of the Lease, an
insufficient number of parking spaces in that portion of the Parking
Facilities consisting of the underground garage located in the Building are
available for use by all tenants of the Building, Landlord and Parking
Manager shall have the right to terminate the automobile parking contract and
provide a replacement parking contract for parking by Tenant within a
two-block radius of the Building, at such rates as are customarily charged
for such replacement parking facilities in the City of Richmond, Virginia.
Tenant agrees that it, any subtenant or licensee and its respective
officers, employees, contractors and agents will park their automobiles and
other vehicles only where and as permitted by Landlord or Parking Manager.
Tenant will, if and when so requested by Landlord or Parking Manager, furnish
the requesting party with the license numbers and any vehicles of Tenant, any
subtenant or licensee and its respective officers, employees, contractors and
agents. Landlord or Parking Manager may remove, at Tenant's expense, any
vehicles which are parking or abandoned in violation of the rules and
regulations established by Landlord or Parking Manager from time to time.
EXHIBIT D
RULES AND REGULATIONS
The Following rules and regulations have been formulated for the safety
and well-being of all the tenants of the Building and become effective upon
occupancy. Strict adherence to these rules and regulations is necessary to
guarantee that each and every tenant will enjoy a safe and unannoyed
occupancy in the Building. Any repeated or continuing violation of these
rules and regulations by Tenant after notice from Landlord, shall be
sufficient cause for termination of this Lease at the option of the Landlord.
Landlord may, upon request by any tenant, waive the compliance by such
tenant of any of the foregoing rules and regulations provided that (i) no
waiver shall be effective unless signed by Landlord or Landlord's authorized
agent; (ii) any such waiver shall not relieve such tenant from the obligation
to comply with such rule or regulation in the future unless expressly
consented to by Landlord, and (iii) no waiver granted to any tenant shall
relieve any other tenant from the obligation of complying with the foregoing
rules and regulations unless such other tenant has received a similar waiver
in writing from Landlord.
1. The sidewalks, walks, plaza entries, corridors, concourses, ramps,
staircases, escalators, and elevators of the Project shall not be
obstructed or used by Tenant, or the employees, agents, servants,
visitors or licensees of Tenant for any purpose other than ingress
and egress to and from the Premises. No bicycle or motorcycle shall
be brought into the Building or kept on the Premises without the
prior written consent of Landlord.
2. No freight, furniture or bulky matter of any description will be
received into the Building or carried into the elevators except in
such a manner, during such hours and using such elevators and
passageways as may be approved by Landlord, and then only upon having
been scheduled in advance. Any hand trucks, carryalls, or similar
equipment used 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.
3. Landlord shall have the right to prescribe the weight, position and
manner of installation of safes or other heavy equipment which shall,
if considered necessary by Landlord, be installed in a manner which
shall insure satisfactory weight distribution. All damage done to the
Building by reason of a safe or any other article of Tenant's office
equipment being on the Premises shall be repaired at the expense of
the Tenant. The time, routing, and manner of moving of safes or other
heavy equipment shall be subject to prior approval by Landlord.
4. Only persons authorized by Landlord will be permitted to furnish
newspaper, ice, drinking water, towels, barbering, shoe shining,
janitorial services, floor polishing, and other similar services and
concessions to Tenant, and only at hours and under regulations fixed
by Landlord. Tenant shall use no other method of heating or cooling
than that supplied by Landlord.
5. Tenant, or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time or 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.
No animals or birds shall be brought or kept in or about the Building.
6. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the
Building of its desirability for offices, and upon written notice
from Landlord, Tenant will refrain from or discontinue such
advertising.
7. Tenant shall not place or cause or allow to be placed, any sign,
placard, picture, advertisement, notice or lettering whatsoever, in,
about or on the exterior of the Premises or the Building except in and
at such places as may be designated by Landlord and consented to by
Landlord in writing. Any such sign, placard, advertisement, picture,
notice or lettering so placed may be removed by Landlord without
notice to and at the expense of Tenant. All lettering and graphics on
corridor doors shall conform to the building standard prescribed by
Landlord. No trademark shall be displayed in any event.
8. Canvassing, soliciting or peddling in the Building is prohibited and
Tenant shall cooperate to prevent same.
9. Landlord shall have the right to exclude any person from the Building
other than during the customary business hours as set forth in the
Lease, and any person in the Building will be subject to
identification by employees and agents of Landlord. All persons in or
entering the Building shall be required to comply with the security
policies of the Building. If Tenant desires any additional security
service for the Premises, Tenant shall have the right with the
advance written consent of Landlord) to obtain such additional
service at Tenant's sole cost and expense. Tenant shall keep doors to
unattended areas locked and shall otherwise exercise reasonable
precautions to protect property from theft, loss or damage of any
property or for any error with
2
regard to the exclusion from or admission to the Building of any
person. In the case of invasion, mob, riot or public excitement, the
Landlord reserves the right to prevent access to the Building during
the continuance of same by closing the doors or taking other measures
for the safety of the tenants and protection of the Building and
property of persons therein.
10. Only workmen employed, designated or approved by Landlord may be
employed for repairs, installations, alterations, painting, material
moving, and other similar work that may be done in or on the Premises.
11. Tenant shall not do any cooking or conduct any restaurant,
luncheonette, automat or cafeteria for the sale or service of food or
beverage on the Premises, except by such persons delivering the same
as shall be approved by Landlord and only under regulations fixed by
Landlord. Tenant may, however, operate a coffee bar by and for its
employees.
12. Tenant shall not bring or permit to be brought or kept in or on the
Premises or the Building any inflammable, combustible, corrosive,
caustic, poisonous or explosive substance, or cause or permit any
odors to permeate in or emanate from the Premises, or permit or
suffer the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by
reason of light, radiation, magnetism, noise, odors and/or
vibrations, or interfere in any way with other tenants or those
having business in the Building.
13. Tenant shall not mark, paint, drill into, or in any way deface any
part of the Building or the Premises. No boring, driving of nails or
screws, cutting or stringing or wires shall be permitted, except with
the prior written consent of Landlord, and as Landlord may direct.
Tenant shall not install any resilient tile or similar floor covering
in the Premises except with the prior approval of Landlord. The use
of cement or other similar adhesive material is expressly prohibited.
14. No additional locks or bolts of any kind shall be place on any door
in the project or the Premises and no lock on any door therein shall
be changed or altered in any respect. Landlord shall furnish two keys
for each lock on exterior floors to the Premises and shall, on
Tenant's request and at Tenant's expense, provide additional
duplicate keys. Tenant shall not duplicate keys. All keys shall be
returned to Landlord the explanations of the combinations of all
safes, vaults, and combination locks remaining with the Premises.
Landlord may at all times
3
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.
15. 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
known emergency in the Building.
16. 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 Landlord's prior permission.
17. Tenant shall not use or permit any portion of the Premises to be used
as an office for a public stenographer or typist, offset printing,
the sale of liquor or tobacco, a barber or manicure shop, an
employment bureau, a labor union 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 this lease.
18. Tenant shall not advertise for laborers giving the Premises as an
address, nor pay such laborers at a location in the Premises.
19. The requirements of Tenant will be attended to only upon application
at the office of Landlord in the Building or at such other address as
may be designated by Landlord in the Lease. Employees of Landlord
shall not perform any work or do anything outside of their regular
duties, unless under special instructions from the office of Landlord.
20. 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 and which is allowed by law. Business machines and mechanical
and electrical equipment belonging to Tenant which cause noise,
vibrations, electrical or magnetic interference, or any other
nuisance that may be transmitted to the structure or other portion
portions of the Building or to the Premises to such a degree as to be
objectionable to Landlord or which interfere with the use or
enjoyment by other tenants of their premises or the public portions
of the Building, shall be placed and maintained by Tenant, at
Tenant's expense, in settings of cork, rubber, spring type or other
vibration eliminators sufficient to eliminate noise or vibration.
4
21. No awnings, draperies, shutters or other interior or exterior window
coverings that are visible from the exterior of the Building or from
the exterior of the Premises within the Building may be installed by
Tenant.
22. Tenant shall not place, install or operate within the Premises or any
other part of the Building any engine, stove or machinery, or conduct
mechanical operations therein, without the written consent of
Landlord.
23. No portion of the Premises or any other part of the Building shall at
any time be used or occupied as sleeping or lodging quarters.
24. Tenant shall at all times keep the Premises neat and orderly.
25. All request for overtime air conditioning or heating must be
submitted to the Management office by no later than 2:00 p.m. on the
last prior business day.
26. The toilet rooms, urinals, wash bowls, and other apparatus shall not
be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be
thrown therein and the expense of any breakage, stoppage or damage
resulting from the violation of this rule shall be borne by the
Tenant who or whose employees or invitees shall have caused it.
27. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act
in violation of any of the Rules and Regulation of the Building.
28. No tenant parking is allowed in the visitors parking area. This area
is strictly monitored by building personnel and violators will be
towed at owners expense.
5
EXHIBIT E
DECLARATION OF COMMENCEMENT DATE
THIS DECLARATION is hereby attached to and made a part of the Lease
dated the ______ day of _____________________, 19___, entered into by and
between _______________________________________________________________, as
Landlord, and __________________________________________, as Tenant. All
terms used in this Declaration have the same meaning as they have in the
Lease.
(i) Landlord and Tenant do hereby declare that possession of the
Premises was accepted by Tenant on the __________ day of _______________,
19____;
(ii) As of the date hereof, the Lease is in full force and effect, and
Landlord has fulfilled all of its obligations under the Lease required to be
fulfilled by Landlord on or prior to said date;
(iii) The Commencement Date is hereby established to be
________________; and
(iv) The Expiration Date is hereby established to be
______________________, unless the Lease is sooner terminated pursuant to any
provision thereof.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit as of
the ______________ day of _____________________________, 19_____.
ATTEST/WITNESS: LANDLORD:
_________________________
__________________________________ By:________________________________[SEAL]
ATTEST/WITNESS: TENANT:
___________________________________
___________________________________
__________________________________ By:________________________________[SEAL]
Name:____________________________________
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "First Amendment") dated as of June 15,
1998, is made and entered into by and between E&M REALTY HOLDING COMPANY,
a Delaware corporation ("Lessor") and IMTEK, a Maryland corporation
("Lessee").
RECITALS
A. By Lease dated as of December 30, 1997 (the "Lease"), Lessor leased
to Lessee and Lessee leased from Lessor certain office space located on the
10th floor of the Building (as hereinafter defined), consisting of
approximately 1,801 square feet of rentable area and known as Suite 1050 (the
"Original Premises"), and being located in the City of Richmond, Virginia, in
the building known as the Eighth and Main Building (the "Building"), with an
address of 707 East Main Street, Richmond, Virginia 23219.
B. Lessor and Lessee have agreed that Lessor shall lease to Lessee and
Lessee shall let from Lessor an additional 1,235 square feet of rentable area
located adjacent to the Original Premises (the "Additional Space") upon the
terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lessor and Lessee agree as follows:
1. Capitalized terms used herein, which are not otherwise defined
herein, shall have the same meanings attributed to them in the Lease.
2. Commencing on June 15, 1998 (the "Effective Date"), Lessor shall
lease to Lessee and Lessee shall let from Lessor the Additional Space upon
the terms and conditions hereinafter set forth. For purposes of this First
Amendment and Lease, from and after the Effective Date, the term "Premises"
shall mean the Original Premises and the Additional Space.
3. Lessor and Lessee acknowledge and agree that the Additional Space is
being leased to Lessee in its present "AS IS" condition, and Lessor and
Lessee further acknowledge and agree that Lessor shall have no obligations to
make any improvements to the Additional Space.
4. Commencing on July 1, 1998, monthly installments of Base Rent
payable under the Lease for the Premises shall be $3,795.00. For the period
June 15, 1998 through June 30, 1998, Lessee shall pay to Lessor, in addition
to the Base Rent previously paid for the Original Premises, an additional
$823.33.
5. Lessor and Lessee acknowledge and agree that Lessee shall have no
right to extend the Term of this Lease beyond the Expiration Date.
6. Except as expressly amended herein, the provisions of the Lease are
hereby ratified and reconfirmed and shall remain in full force and effect in
all respects.
7. This First Amendment shall be construed and governed by the
applicable laws of the Commonwealth of Virginia.
IN WITNESS WHEREOF, Lessor and Lessee have caused this First Amendment
to Lease to be executed as of the day and year first above written.
LESSOR:
E&M REALTY HOLDING COMPANY
By: David Chen
-----------
David Chen
Title: Vice President
--------------
Lessee:
IMTEK
By: Michael L. Lowe
----------------
Michael L. Lowe
Title: President
----------
SUBLEASE
1. PARTIES - This Sublease dated December 15, 1997 is made between Legal
America of Virginia, Ltd., ("Sublessor"), and Imtek Corporation,
("Sublessee").
2. MASTER LEASE - Sublessor is the Tenant under a written lease dated June
30, 1997 wherein ("Landlord") leases to Sublessor the real property located
in the city of Richmond, Virginia described as 20 North Eighth Street,
Richmond, Virginia ("Premises"). Said lease has been amended by the following
amendments:
N/A
---
said lease and amendments are herein collectively referred to as the "master
Lease" and are attached hereto as Exhibit "A" which is the lease.
3. PREMISES - Sublessor hereby subleases to Sublessee on the terms and
conditions set forth in this Sublease the Premises.
4. WARRANTY BY SUBLESSOR - Sublessor warrants and represents to Sublessee
that the Master Lease has not been amended or modified except as expressly
set forth herein, that Sublessor is not now, and as of the commencement of
the Term will not be, in default or breach of any of the provisions of the
Master Lease, and that the Sublessor has no knowledge of any claim by
Landlord that Sublessor is in default or breach of any of the provisions of
the Master Lease.
5. TERM - The Term of this Sublease shall commence as of December 1, 1997
("Commencement Date"), or when Landlord consents to this Sublease (if such
consent is required under the Master Lease), whichever shall last occur, and
end on July 31, 2000 ("Termination Date"), unless otherwise sooner terminated
in accordance with the provisions of this Sublease. In the event the Term
commences on a date other than the Commencement Date, Sublessee shall execute
a non-recordable memorandum setting forth the actual date of commencement of
the Term. Possession of the Premises ("Possession") shall be delivered to
Sublessee on the commencement of the Term. If for any reason Sublessor does
not deliver Possession to Sublessee on the commencement of the Term,
Sublessor shall not be subject to any liability for such failure, the
Termination Date shall not be extended by the delay, and the validity of this
Sublease shall not be impaired but rent shall abate until delivery of
Possession. Notwithstanding the foregoing, if Sublessor has not delivered
Possession to Sublessee within thirty (30) days after the Commencement Date,
then at any time thereafter and before delivery of Possession, Sublessee may
give written notice to Sublessor of Sublessee's intention to cancel this
Sublease. Said notice shall set forth an effective date for such cancellation
which shall be at least ten (10) days after delivery of said notice to
Sublessor. If Sublessor delivers Possession to Sublessee on or before such
effective date, this Sublease shall remain in full force and effect. If
Sublessor fails to deliver Possession to Sublessee on or before such
effective date, this Sublease shall be cancelled, in which case all
consideration previously paid by Sublessee to Sublessor on account of this
Sublease shall be returned to Sublessee, this Sublease shall thereafter be of
no further force or effect, and Sublessor shall have no further liability to
Sublessee on account of such delay or cancellation. If Sublessor permits
Sublessee to take Possession prior to the commencement of the Term, such
early Possession shall not advance the Termination Date and shall be subject
to the provisions of this Sublease, including without limitation the payment
of rent.
6. RENT - 6.1 Minimum Rent. Sublessee shall pay to Sublessor as minimum rent,
without deduction, setoff, notice or demand at 1044 Main Street, Kansas City,
Missouri 64105 or at such other place Sublessor shall designate from time to
time by notice to Sublessee, the sum of (**) per month starting on December
1, 1997 in advance on the first day of each month of the term. Sublessee
shall pay to Sublessor upon execution of this Sublease the sum of $0 as a
security deposit. If the term begins or ends on a day of a month, the rent
for the partial months shall be prorated on a per diem basis.
**Months 5-12 $2,750.00; Months 13-24 $2,975.00; Months 25-36 $3,237.50
7. USE OF PREMISES - The Premises shall be used and occupied only for general
office use and for no other use or purpose.
8. ASSIGNMENT AND SUBLETTING - Sublessee shall not assign the Sublease or
further sublet all or any part of the Premises without the prior written
consent of Sublessor (and the consent of Landlord, if such is required under
the terms of the Master Lease).
9. OTHER PROVISIONS OF SUBLEASE - All applicable terms and conditions of the
Master Lease are incorporated into and made a part of this Sublease as if
Sublessor were the Landlord thereunder, and the Sublessee the Tenant
thereunder, and the Premises the Master Premises. Sublessee, assumes and
agrees to perform the Tenant's obligations under the Master Lease during the
Term to the extent that such obligations are applicable to the Premises,
except that the obligation to pay rent to the Landlord under the Master Lease
shall be considered performed by Sublessee to the extent and in the amount of
rent as paid to Sublessor in accordance with Section 6 of this Sublease.
Sublessee shall not commit or suffer any act or omission that will violate
any of the provisions of the Master Lease. Sublessor shall exercise due
diligence in attempting to cause Landlord to perform its obligations under the
Master Lease for the benefit of the Sublessee. If the Master Lease
terminates, this Sublease shall terminate and the parties shall be relieved
of any further liability or obligation under this Sublease, provided however,
that if the Master Lease terminates as a result of a default or breach by
Sublessor or sublessee under this Sublease and/or the Master Lease, then the
defaulting party shall be liable to the non-defaulting party for the damages,
costs and expenses, including attorney's fees, suffered as a result of such
termination. Notwithstanding the foregoing, if the Master Lease gives
Sublessor any right to terminate the Master Lease in the event of the partial
or total damage, destruction, or condemnation of the Master Premises or the
building or project of which the Master Premises are a part, the exercise of
such right by Sublessor shall not constitute a default of breach hereunder.
10. ATTORNEY'S FEES - If Sublessor, Sublessee, shall commence an action
against the other arising out of or in connection with this Sublease, the
prevailing party shall be entitled to recover its costs of suit and
reasonable attorney's fees.
11. NOTICES - All notices and demands which may or are to be required or
permitted to be given by either party on the other hereunder shall be in
writing. All notices and demands by the Sublessor and Sublessee shall be sent
through the United STates Mail, postage prepaid, addressed to the Sublessee at
the Premises, and to the address hereinbelow, or to such other place as
Sublessee may from time to time designate in a notice to Sublessor. All
notices and demands by the Sublessee to Sublessor shall be sent by United
States Mail, postage prepaid, addressed to Sublessor at the address set forth
herein, and to such other person or place as the Sublessor may from time to
time designate in a notice to the Sublessee.
To Sublessor: Legal America of Virginia, Ltd., 1044 Main Street, Suite 800,
Kansas City, Missouri 64105
To Sublessee: Imtek Corporation, 20 N. Eighth Street, Richmond, Virginia 23219
12. CONSENT BY LESSON - THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT
UNLESS CONSENTED TO BY LANDLORD WITHIN 10 DAYS AFTER EXECUTION HEREOF, IF
SUCH CONSENT IS REQUIRED UNDER THE TERMS OF THE MASTER LEASE.
Date: 12/16/97 Date: 12/19/97
----------------- -------------------
Sublessor: Legal America of VA, Ltd. Sublesee: Imtek Corporation
By: /s/ Mark Curry, CEO By: /s/ Michael L. Lowe
------------------------------- ----------------------------
By: Mark Curry By: Michael L. Lowe
Title: CEO Title: President, CEO
LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Landlord") landlord under the Master Lease, hereby consents
to the foregoing Sublease without waiver of any restriction in the Master
Lease concerning further assignment or subletting. Landlord certifies that,
as of the date of Landlord's execution hereof Sublessor is not in default of
any of the provisions of the Master Lease, and that the Master Lease has not
been amended or modified except as expressly set forth in the foregoing
Sublease.
Date:
-----------------------
Pied Ventures, LLC
By:
-------------------------
Title: