EXHIBIT 10.1
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LEASE AGREEMENT
FAIR CENTER OFFICE BUILDING
FAIRFAX, VIRGINIA
THIS LEASE AGREEMENT (this "Lease") is made as of the 20th day of
December, 1996 by and between Aeromaritime Investment Company, a Delaware
corporation (hereinafter referred to "Landlord"), and Information Analysis,
Inc., a Virginia corporation (hereinafter referred to as "Tenant").
RECITALS:
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A. Landlord is the owner of a four-story office building known as the
Fair Center Office Building, located at 00000 Xxxxxx Xxxx Xxxx, Xxxxxxx,
Xxxxxxxx 00000. (Said office building is hereinafter referred to as the "Office
Building").
B. Tenant desires to lease space in the Office Building and Landlord
is willing to lease space in the Office Building to Tenant, upon the terms,
conditions, covenants and agreements set forth herein.
NOW THEREFORE, the parties hereto, intending legally to be bound
hereby covenant and agree as set forth below.
ARTICLE I
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THE PREMISES
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1.1 Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, for the term and upon the terms, conditions, covenants and agreements
herein provided, approximately 15,023 square feet of rentable area on the 4th
floor (hereinafter referred to as "Part A of the Premises") and approximately
3,257 square feet of rentable area on the 2nd floor (hereinafter referred to as
"Part B of the Premises") of the Office Building (such combined total area of
18,280 square feet of rentable area is hereinafter referred to as the
"Premises"). The location and configuration of the Premises are outlined on
Exhibit A attached hereto and made a part hereof. At such time as the exact
number of square feet of rentable area included in the Premises is ascertained,
Landlord and Tenant shall execute an amendment to this Lease stating the exact
number of square feet of rentable area included in the Premises. Landlord's
architect shall verify the square footage of the Premises and verify that the
1989 Washington Board of Realtors Standard Floor Area Measure was utilized in
the calculation of the square footage.
1.2 The lease of the Premises (hereinafter referred to as the "Lease")
includes the right, together with other tenants of the Office Building and
members of the public, to use the common and public areas of the Office
Building, but includes no other rights not specifically set forth herein.
1.3 Tenant shall have the use of up to 3.5 parking spaces per 1,000
rentable square feet in the Premises on the Office Building's surface parking
lot, including six (6) reserved, marked spaces for Tenant's employees,
representatives, visitors and agents. Other than the six (6) reserved, marked
spaces referenced hereinabove, Tenant agrees and acknowledges that the parking
spaces shall be unreserved and that Landlord shall not be obligated to police
the parking lot to enforce this provision nor shall Landlord be obligated to
guarantee that such spaces will always be available.
ARTICLE II
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TERM
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2.1 The term of this Lease (hereinafter referred to as the "Lease
Term") shall commence on the date determined pursuant to Section 2.2 hereof
(hereinafter referred to as the "Lease Commencement Date") and shall
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continue for the balance of the month in which the Lease Commencement Date
occurs and for a period of seven (7) years thereafter unless the Lease Term is
renewed or terminated earlier in accordance with the provisions of this Lease.
2.2 The Lease Commencement Date shall be the date on which Landlord
substantially completes construction of the tenant improvements to be installed
in the Premises, as determined pursuant to Paragraphs 1 and 2 of Exhibit B
attached hereto and made a part hereof, or the date on which Tenant commences
beneficial use of the Premises, whichever occurs first. Tenant shall be deemed
to have commenced beneficial use of the Premises when Tenant begins to move
furniture and furnishings into the Premises. Notwithstanding the foregoing, if
Landlord is delayed in completing construction of the Premises as a result of
any of the reasons described in clauses (a) through (e) of Paragraph 3 of
Exhibit B, the Premises shall be determined to have been substantially completed
on the date determined in accordance with Paragraph 4 of Exhibit B.
Notwithstanding the foregoing, in the event Landlord is unable to substantially
complete construction of the Premises by May 1, 1997 and such is inability to
complete construction is not caused by circumstances beyond Landlord's control,
including Tenant's failure to comply with any term, condition, covenant or
agreement contained in the Lease and attached Exhibit B, then and only in such
event Landlord agrees to pay Tenant's holdover portion of base rent for Tenant's
present offices located at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxx,
Xxxxxxxx in the amount of $11,871.58 per month commencing May 1, 1997 and
continuing until the Premises is substantially completed.
2.3 Promptly after the Lease Commencement Date is ascertained, Landlord
and Tenant shall execute an amendment to this Lease setting forth the Lease
Commencement Date and the date upon which the Lease Term will expire.
2.4 Landlord presently anticipates that the Premises will be ready for
occupancy for Tenant on or about March 1, 1997. In the event that construction
of the Premises or delivery of possession of the Premises is delayed, regardless
of the reasons or causes of such delay, this Lease shall not be rendered void or
voidable as a result of such delay, and the term of this Lease shall commence on
the Lease Commencement Date as determined pursuant to Section 2.2 hereof.
Furthermore, Landlord shall not have any liability whatsoever to Tenant on
account of any such delay except as otherwise set forth in Section 2.2 hereof.
Notwithstanding the foregoing, in the event Landlord has not delivered
possession of the Premises by August 1, 1997 and such delay in delivery in
possession was not caused by Tenant or circumstances beyond Landlord's control,
Tenant may terminate the Lease without penalty.
2.5 For purposes of this Lease, the term "Lease Year" shall mean each
consecutive period of the twelve (12) calendar months, commencing on the first
day of the month immediately following the month in which the Lease Commencement
Date occurs and on each anniversary of such day, except that the first (1st)
Lease Year shall also include the period from Lease Commencement Date until the
first day of the following month.
ARTICLE III
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BASE RENT
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3.1 During the Lease Term, Tenant shall pay to Landlord as annual base
rent for the Premises, without setoff, deduction or demand, the combined total
amount of: (a) an amount equal to the sum of $15.75 multiplied by the total
number of square feet of rentable area in Part A of the Premises and (b) an
amount equal to the sum of $15.50 multiplied by the total number of square feet
of rentable area in Part B of the Premises, which combined total amount shall be
subject to adjustment as provided in Section 3.2 hereof. The annual base rent
payable hereunder during each Lease Year shall be divided into equal monthly
installments and such monthly installments shall be due and payable in advance
by the first day of each month during such Lease Year. Concurrently with the
signing of this Lease, Tenant shall pay to Landlord the sum of $23,924.65, which
sum shall be credited by Landlord toward the monthly installment of base rent
due for the first full calendar month falling within the Lease Term. If the
Lease Term begins on a day other than on the first day of a month, rent from
such date until the first day of the following month shall be prorated on a per
diem basis at the rate of one-thirtieth (1/30th) of the monthly installment of
base rent payable during the first Lease Year, and such prorated rent shall be
payable in advance on the Lease Commencement Date.
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3.2 Commencing on the first (1st) day of the second (2nd) Lease Year
and on the first day of each and every Lease Year thereafter during the Lease
Term, the annual base rent set forth in Section 3.1 hereof shall be increased by
three percent (3%).
3.3 All rent shall be paid to Landlord in legal tender of the United
States at the address to which notices to Landlord are to be given or to such
other party or to such other address as Landlord may designate from time to time
by written notice to Tenant. If Landlord shall at any time accept rent after it
shall become due and payable, such acceptance shall not excuse a delay upon
subsequent occasions, or constitute or be construed as a waiver of any of
Landlord's rights hereunder.
ARTICLE IV
ADDITIONAL RENT
4.1 Introduction. An integral part of Landlord's leasing program for
the Office Building involves the requirement that the tenants of the Office
Building bear that portion of the costs and expenses incurred each year in the
operation of the Office Building that exceed a predetermined base amount. It is
the intent and desire of the Landlord that such costs and expenses be allocated
among all the tenants of the Office Building in a fair and equitable manner
consistent with sound and practical administrative practice. The costs and
expenses include, among other things: (a) the basic administrative and operating
costs and expenses incurred in the operation of the Office Building, (b) the
charges for electrical power furnished to or for the benefit of the tenants of
the Office Building, and (c) the costs incurred by Landlord in providing
janitorial and char services for the tenants of the Office Building and for all
public and common areas in the Office Building. By execution of this Lease,
Tenant accepts basic obligation to pay its proportionate share of the cost
increases incurred with respect to the expenses described above. The specific
obligations of Tenant with respect to such cost increases shall be governed by
the remaining sections of this Article IV.
4.2 Basic Operating Charges.
(a) As additional rent for the Premises. Tenant shall pay to Landlord its
proportionate share of the amount by which the Basic Operating Charges (as
hereinafter defined) incurred by Landlord in the operation of the Office
Building during any calendar year falling entirely or partly within the Lease
Term exceed the Basic Operating Charges for the calendar year 1997 (hereinafter
referred to as the "Operating Charges Base Amount"). For purposes of this
Section 4.2, Tenant's proportionate share of such increases shall be that
percentage which is equal to a fraction, the numerator of which is the number of
square feet of rentable area in the Premises, and the denominator of which is
the total number of square feet of rentable area in the Office Building.
(b) The Basic Operating Charges shall mean the sum of the costs and
expenses described in subsection (1) below, which are intended to include all
costs of operating the Office Building that are to be apportioned to all tenants
of the Office Building, but the Basic Operating Charges shall not include the
costs and expenses described in subsection (2) below.
(1) Included costs and expenses:
(i) Except as otherwise provided in subsection (b)(2)(v) below, gas,
water, sewer, electricity and other utility charges (including
surcharges) of every type and nature.
(ii) Insurance.
(iii) Personnel costs of the Office Building, including but not limited
to, salaries, wages, fringe benefits and other direct and indirect
costs of engineers, superintendents, watchmen, porters and any
other Office Building personnel.
(iv) Costs of service and maintenance contracts, including, but not
limited to, chillers, boilers, controls, elevators, mail chute,
window cleaning, security services and management fees.
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(v) All other maintenance and repair expenses and supplies which are
deducted by Landlord in computing its Federal income tax
liability.
(vi) Depreciation (on a straight-line basis over the useful life of the
improvement) for capital expenditures made by Landlord to reduce
operating expenses if Landlord reasonably determines that the
annual reduction in operating expenses shall exceed depreciation
therefor.
(vii) Costs of all janitorial and cleaning services and supplies
furnished to the tenants of the Office Building and for all common
and public areas in the Office Building.
(viii) Any other actual costs and expenses incurred by Landlord in
maintaining or operating the Office Building.
(ix) The costs of any additional services not provided to the Office
Building at the Lease Commencement Date but thereafter provided by
Landlord in the prudent management of the Office Building.
(x) Real Estate Taxes (as hereinafter defined).
(2) Excludes costs and expenses:
(i) Principal or interest payments on any mortgages, deeds of trust or
other financing encumbrances.
(ii) Leasing commissions payable by Landlord.
(iii) Deductions for depreciation for the Office Building, except to the
extent included in subsection (1)(vi) above.
(iv) Capital improvements that are not deducted by Landlord in
computing its Federal income tax liability, except to the extent
included in subsection (1)(vi) above.
(v) The costs of special services or utilities separately chargeable
to individual tenants of the Office Building.
(vi) Ground rent or other rental payments made under any ground lease
or underlying lease.
(vii) Costs of structural repairs to the Office Building including
structural repairs to the roof, curtain wall, foundation, floor
slabs (except for normal caulking and maintenance).
(viii) Costs of leasing commissions, legal, space planning, construction,
and other expenses incurred in procuring tenants for the Office
Building or with respect to individual tenants or occupants of the
Office Building.
(ix) Costs of painting, redecorating, or other services or work
performed for the benefit of another tenant, prospective tenant or
occupant (other than the common areas of the Office Building).
(x) Salaries, wages, or other compensation paid to officers or
executives of Landlord.
(xi) Costs of advertising and public relations and promotional costs
associated with the promotion or leasing of the Office Building
and costs of signs in or on the Office Building identifying the
owners of the Office Building or any tenant of the Office
Building.
(xii) Any costs, fines or penalties incurred due to the violation by
Landlord of any governmental rule or authority.
(xiii) Any other expenses for which Landlord actually receives
reimbursement from insurance, condemnation awards, other tenants
or any other source.
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(xiv) Costs of repairs, restoration, replacements or other work
occasioned by: (a) fire, windstorm or other casualty (whether such
destruction be total or partial) and (b) the exercise by
governmental rule or authority.
(xv) Costs incurred in connection with disputes with tenants, other
occupants, or prospective tenants, or costs and expenses incurred
in connection with negotiations or disputes with employees,
consultants, management agents, leasing agents, purchasers or
mortgagees of the Office Building.
(xvi) Costs of repairing, replacing or otherwise correcting defects
(including latent defects) in or inadequacies of (but not the
costs of ordinary and customary repair for normal wear and tear)
the initial design or construction of the Office Building or
the costs of repairing, replacing or correcting defects in the
initial design or construction of the Office Building or the costs
of repairing, replacing or correcting defects in the initial
design or construction of any tenant improvements.
(xvii) Costs relating to another tenant's or occupant's space which (a)
were incurred in rendering any service or benefit to such tenant
that Landlord was not required, or were for a service in excess of
the service that the Landlord was required, to provide Tenant
hereunder or (b) were otherwise in excess of the Office Building
standard services then being provided by Landlord to all tenants
or other occupants in the Office Building, whether or not such
other tenant or occupant is actually charged therefor by Landlord.
(xviii) Costs incurred in connection with the sale, financing,
refinancing, mortgaging, selling or change of ownership of the
Office Building.
(xix) Costs, fines, interest, penalties, legal fees or costs of
litigation incurred due to the late payments of taxes, utility
bills and other costs incurred by Landlord's failure to make such
payments when due.
(xx) General overhead and general administrative expenses and
accounting, record-keeping and clerical support of Landlord or the
management agent, except expenses related to the Office Building.
(xxi) All amounts which would otherwise be included in expenses which
are paid to any affiliate or subsidiary of Landlord, or any
representative, employee or agent of same, to the extent the costs
of such services exceed the competitive rates for similar services
of comparable quality rendered by persons or entities of similar
skill, competence and experience.
(xxii) Increased insurance premiums caused by Landlord's or any other
tenant's hazardous acts and insurance for leasehold improvements
in the premises leased or to be leased to other tenants.
(xxiii) Costs incurred to correct violations by Landlord of any law, rule,
order or regulation which was in effect as of the date that the
Office Building's Certificate of Occupancy was validly issued.
(xxiv) Costs arising from the presence of Hazardous Substances in or
about or below the land or the Office Building, including without
limitation, hazardous substances in the groundwater or soil
(unless introduced into or caused by Tenant), except costs for
bottled drinking water which may be provided to tenants of the
Office Building.
(xxv) Costs incurred for any items to the extent covered by a
manufacturer's, materialsman's, vendor's or contractor's warranty
(a "Warranty") and the costs of any items that are not covered by
a Warranty but for which a reasonable, prudent Landlord would have
obtained a warranty.
(xxvi) Non-cash items, such as deductions for depreciation and
amortization of the Office Building and the Office Building
equipment, interest on capital invested, bad debt losses, rent
losses and reserves for such losses.
(xxvii) Services provided and costs incurred in connection with the
operation of retail or other ancillary operations
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owned, operated or subsidized by Landlord.
(c) As used above, the term "Real Estate Taxes" shall mean, (i) all real
estate taxes, including general and special assessments, if any, which are
imposed upon Landlord or assessed against the Office Building and/or the land
upon which the Office Building is situated, and (ii) any other present or
future taxes or governmental charges that are imposed upon Landlord, or
assessed against the Office Building and/or the land upon which it is situated,
including, but not limited to, any tax levied on or measured by the rents
payable by tenants of the Office Building, which are in the nature of, or in
substitution for, real estate taxes.
4.3 Commencing on the first anniversary of the Lease Commencement Date,
Tenant shall make estimated monthly payments to Landlord on account of increases
in the charges described in Section 4.2 that are expected to be incurred during
each calendar year falling entirely or partly within the Lease Term. The amount
of such monthly payments shall be determined as follows. At the beginning of the
second year of the Lease Term and at the beginning of each calendar year
thereafter, Landlord shall submit to Tenant a statement setting forth Landlord's
reasonable estimates of the amounts by which the charges that are expected to be
incurred during such calendar year will exceed the Operating Charges Base Amount
and the computation of Tenant's proportionate share of such anticipated
increase. Tenant shall pay to Landlord on the first day of each month following
receipt of such statement during such calendar year an amount equal to Tenant's
proportionate share of the anticipated increase multiplied by a fraction, the
numerator of which is 1, and the denominator of which is the number of months
during such calendar year which fall within the Lease Term and follow the date
of the foregoing statement. Within ninety (90) days after the expiration of each
calendar year, Landlord shall submit to Tenant a statement showing, (i) Tenant's
proportionate share of the amount by which the costs and expenses described in
Section 4.2 actually incurred during the preceding calendar year exceeded the
Operating Charges Base Amount, and (ii) the aggregate amount of the estimated
payments made by Tenant on account thereof. If the aggregate amount of such
estimated payments exceeds Tenant's actual liability for such increases, Tenant
shall deduct the net overpayment from its next estimated payment or payments on
account of increases in such categories of charges for the then current year. If
Tenant's actual liability for such increases exceeds the estimated payments made
by Tenant on account thereof, then Tenant shall within thirty (30) days pay to
Landlord the total amount of such deficiency.
4.4 In the event the Lease Term commences or expires during a calendar
year, the increases in the charges described in Section 4.2 to be paid by Tenant
for such calendar year shall be apportioned by multiplying the amount of
Tenant's proportionate share thereof for the full calendar year by a fraction,
the numerator of which is the number of months during such calendar year falling
within the Lease Term, and the denominator of which is 12. Tenant's liability
for its proportionate share of the increase in such charges for the last
calendar year falling entirely or partly within the Lease Term shall survive the
expiration of the Lease Term. Similarly, Landlord's obligation to refund to
Tenant the excess, if any, of the amount of Tenant's estimated payments on
account of such increase for such last calendar year over Tenant's actual
liability therefore shall survive the expiration of the Lease Term.
4.5 All payments required to be made by Tenant pursuant to this Article
IV shall be paid to Landlord, without setoff or deduction, in the same manner as
the base rent is payable pursuant to Article III hereof.
4.6 In the event that any business, rent or other taxes that are now or
hereafter levied upon Tenant's use or occupancy of the Premises or Tenant's
business at the Premises are enacted, changed or altered so that any of such
taxes are levied against the Landlord, or the mode of collection of such taxes
is changed so that Landlord is responsible for collection or payment of such
taxes, Tenant shall pay any and all such taxes to Landlord within thirty (30)
days of demand from Landlord.
ARTICLE V
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SECURITY DEPOSIT
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5.1 Simultaneously with the execution of this Lease, Tenant shall
deliver to Landlord an amount equal to one month's installment of base rent as
computed in accordance with Article 3.1, as a security deposit (hereinafter
referred to as the "Security Deposit"). Such amount shall be in addition to the
amount referenced in Section 3.1 hereof. In the event that the Premises are
determined to contain more or less than 18,280 square feet of rentable area,
then the amount
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of the Security Deposit shall be increased or decreased, as the case may be, so
that the amount of the Security Deposit shall be equal to one monthly
installment of base rent, as determined pursuant to Section 3.1 hereof.
Landlord shall not be required to maintain such Security Deposit in a separate
account. The Security Deposit shall be deposited in a federally insured
financial institution and shall earn interest throughout the Lease Term. The
Security Deposit shall be security for the performance by Tenant of all Tenant's
obligations, covenants, conditions and agreements under this Lease. Within
thirty (30) days after the expiration of the Lease Term, and provided Tenant has
vacated the Premises and is not in default hereunder, Landlord shall return the
Security Deposit and accrued interest to Tenant, less Landlord's reasonable
administrative fee of no more than five percent (5%) of the interest earned and
less such portion thereof as Landlord shall have appropriated to satisfy any
default by Tenant hereunder. In the event of any default by Tenant hereunder,
Landlord shall have the right, but shall not be obligated, to use, apply or
retain all or any portion of the Security Deposit for, (i) the payment of any
base or additional rent or any other sum as to which Tenant is in default, ii)
the payment of any amount which Landlord may spend or become obligated to spend
to repair physical damage to the Premises or the Office Building pursuant to
Section 8.2 hereof, or (iii) the payment of any amount Landlord may spend or
become obligated to spend, or for the compensation of Landlord for any losses
incurred, by reason of Tenant's default, including, but not limited to, any
damage or deficiency arising in connection with the reletting of the Premises.
If any portion of the Security Deposit is so used or applied, within ten (10)
business days after written notice to Tenant of such use or application, Tenant
shall deposit with Landlord cash in an amount sufficient to restore the Security
Deposit to its original amount, and Tenant's failure to do so shall constitute a
default under this Lease.
5.2 in the event of the sale or transfer of Landlord's interest in the
Office Building, Landlord shall transfer the Security Deposit to the purchaser
or assignee, in which event Tenant shall look only to the new landlord for the
return of the Security Deposit, and Landlord shall thereupon be released from
all liability to Tenant for the return of the Security Deposit.
5.3 Tenant hereby acknowledges that Tenant will not look to the holder
of any mortgage (as defined in Section 21.1) encumbering the Office Building for
return of the Security Deposit if such holder, or its successors, or assigns,
shall succeed to the ownership of the Office Building, whether by foreclosure or
deed in lieu thereof, except if and to the extent the Security Deposit is
actually transferred to such holder.
ARTICLE VI
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USE OF THE PREMISES
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6.1 Tenant shall use and occupy the Premises solely for general office
purposes and for no other use or purpose without the prior written consent of
Landlord. Tenant shall not use or occupy the Premises for any unlawful purpose
or in any manner that will constitute waste, nuisance or unreasonable annoyance
to the Landlord or other tenants of the Office Building. Tenant shall comply
with all present and future laws, ordinances (including zoning ordinances and
land use requirements), regulations, and orders of the United States of America,
the Commonwealth of Virginia, the County of Fairfax, and any other public or
quasi-public authority having jurisdiction over the Premises, concerning the
use, occupancy and condition of the Premises and all machinery, equipment and
furnishings therein. It is expressly understood that if any present or future
law, ordinance, regulation or order requires an occupancy permit for the
Premises, Tenant will obtain such permit at Tenant's own expense, except that
Landlord shall obtain the initial certificate of occupancy for the Premises upon
Landlord's completion of the tenant improvements to be installed by Landlord
pursuant to Exhibit B attached hereto and made a part hereof.
6.2 Tenant and Landlord shall comply, at all times during the Lease
Term, with Titles I and III of the Americans with Disabilities Act of 1990, as
it may be amended from time to time, as it relates to the Premises and Office
Building, respectively.
ARTICLE VII
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ASSIGNMENTS AND SUBLETTING
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7.1 Tenant shall not have the right to assign, transfer, mortgage or
otherwise encumber this Lease or its interest herein without first obtaining the
prior written consent of Landlord, which consent may be granted or withheld
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by Landlord in its sole discretion. No assignment or transfer of this Lease or
the right of occupancy hereunder may be effectuated by operation of law or
otherwise without the prior written consent of Landlord, which consent may be
granted or withheld by Landlord in its sole discretion. If Tenant is a
partnership, a withdrawal or change, whether voluntary, involuntary or by
operation or law, of partners owning a controlling interest in Tenant shall be
deemed a voluntary assignment of this Lease and subject to the foregoing
provisions. If Tenant is a corporation, any dissolution, merger, consolidation
or other reorganization of Tenant, or the sale or transfer of a controlling
interest of the capital stock of Tenant, shall be deemed a voluntary assignment
of this Lease and subject to the foregoing provisions. However, the preceding
sentence shall not apply to corporations, the stock of which is traded through
a national or regional exchange or over-the-counter. Any attempted assignment
or transfer by Tenant of this Lease or its interest herein without Landlord's
consent shall, at the option of Landlord, terminate this Lease, however, in
the event of such termination, Tenant shall remain liable for all rent and
other sums due under this Lease and all damages suffered by Landlord on
account of such breach by Tenant.
7.2 Tenant shall not have the right to sublease (which term, as used
herein, shall include any type of subrental arrangement and any type of license
to occupy) the entire Premises without first obtaining the prior written consent
of the Landlord, which consent shall not be unreasonably withheld, conditioned
or delayed. Furthermore, Tenant shall not have the right to sublease any portion
of the Premises without first complying with the provisions of subsections (a)
and (b) below:
(a) Tenant shall give the Landlord written notice of its desire to
sublease all or a portion of the Premises. Such notice shall specify
the portion of the Premises proposed to be sublet and the date such
portion is to be made available for subleasing. Within twenty (20)
days after receipt of such notice, Landlord shall notify Tenant in
writing whether or not Landlord will retake possession of the portion
of the Premises proposed to be sublet and thereby delete such portion
of the Premises from the Premises being leased to Tenant hereunder. If
Landlord elects to retake such portion of the Premises, then Landlord
shall retake possession of such portion on the date specified in
Tenant's notice and Tenant's obligation to pay rent for such portion
shall cease on such date. Thereafter, Tenant shall not have any
further rights of any kind, including any rights of renewal, in or to
the portion of the Premises so retaken. If Landlord does not elect to
retake such portion of the Premises within the aforesaid twenty (20)
day period, Tenant shall comply with the provisions of subsection (b)
below with respect to any proposed sublease of such portion of the
Premises.
(b) Tenant shall have the right to sublease any portion of the Premises
that Landlord has not elected to retake pursuant to subsection (a)
above, provided that Tenant obtains the prior written consent of
Landlord to such proposed sublease. Landlord agrees not to
unreasonably withhold, condition or delay its consent to any such
proposed sublease; provided, however, that it shall not be
unreasonable for Landlord to withhold its consent if Landlord
determines, in its reasonable discretion, that the character of the
proposed subtenant or the nature of the activities to be conducted by
such proposed subtenant would adversely affect the other tenants of
the Office Building or would impair the reputation of the Office
Building as a first-class office building.
Notwithstanding the foregoing, Landlord hereby approves Inotech and Point
Systems, Inc. as approved subtenants subject to all provisions of this Article
VII.
7.3 The consent by Landlord to any assignment or subletting shall not
be construed as a waiver or release of Tenant from any and all liability for the
performance of all covenants and obligations to be performed by Tenant under
this Lease, nor shall the collection or acceptance of rent from any assignee,
transferee or subtenant constitute a waiver or release of Tenant from any of its
liabilities or obligations under this Lease. Landlord's consent to any
assignment or subletting shall not be construed as relieving Tenant from the
obligation of complying with the provisions of Sections 7.1 or 7.2 hereof, as
applicable, with respect to any subsequent assignment or subletting. For any
period during which Tenant is in default hereunder, Tenant hereby assigns to
Landlord the rent due from any subtenant of Tenant and hereby authorizes each
subtenant to pay said rent directly to Landlord.
7.4 Tenant hereby covenants and agrees that neither Tenant nor any
other person having an interest in the possession, use, occupancy or utilization
of the Premises shall enter into any lease, sublease, license, concession or
other agreement for use, occupancy or utilization of space in the Premises which
provides for rental or other payment
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for such use, occupancy or utilization based in whole or in part on the net
income or profits derived by any person from the Premises, used, occupied or
utilized (other than an amount based on a fixed percentage or percentages of
receipts or sales), and that any such purported lease, sublease, license,
concession or other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the Premises.
ARTICLE VIII
------------
TENANT'S MAINTENANCE AND REPAIRS
--------------------------------
8.1 Tenant will keep and maintain the Premises and all fixtures and
equipment located therein in clean, safe and sanitary condition, will take good
care thereof and make all required repairs thereto, and will suffer no waste or
injury thereto. At the expiration or other termination of the Lease Term, Tenant
shall surrender the Premises, broom clean, in the same order and condition in
which they are in on the Lease Commencement Date, ordinary wear and tear and
unavoidable damage by the elements excepted.
8.2 Except as otherwise provided in Article XVII hereof, all injury,
breakage and damage to the Premises and to any other part of the Office Building
caused by any act or omission of Tenant, or of any agent, employee, subtenant,
contractor, customer or invitee of Tenant, shall be repaired by and at the sole
expense of Tenant, except that Landlord shall have the right, at its option, to
make such repairs and to charge Tenant for all costs and expenses incurred in
connection therewith as additional rent hereunder. Notwithstanding the
foregoing, except in the event of emergency, Landlord shall only make such
repairs to the Premises if Tenant has failed to make such repairs within fifteen
(15) days of the occurrence. The liability of Tenant for such costs and expenses
shall be reduced by the amount of any insurance proceeds received by Landlord on
account of such injury, breakage or damage.
ARTICLE IX
----------
TENANT ALTERATIONS
------------------
9.1 The initial tenant improvements in and to the Premises shall be
installed by Landlord in accordance with Exhibit B attached hereto. It is
understood and agreed Landlord will not make, and is under no obligation to
make, any structural or other alterations, decorations, additions or
improvements in or to the Premises, except as provided in Exhibit B or as
otherwise provided in this Lease.
9.2 Tenant will not make or permit anyone to make any alterations,
decorations, additions or improvements (hereinafter referred to collectively as
"Building Improvements"), or any structural or exterior changes to the Office
Building without the prior written consent of Landlord. Such consent shall be
subject to Landlord's sole discretion. Tenant may make non-structural
alterations, decorations, additions or improvements to the interior of the
Premises (hereinafter referred to collectively as "Improvements") only upon the
prior written consent of Landlord, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, Tenant is not required to obtain the
Landlord's written consent to hang artwork and other similar decorations on the
walls of the Premises so long as such decorations do not damage the Premises
(damage shall not be deemed to include small holes caused by hooks or nails used
to hang the decorations). It shall not be unreasonable for Landlord to withhold
its consent where the Improvements proposed will, in the judgment of Landlord,
adversely affect the other tenants of the Office Building or would impair the
reputation of the Office Building as a first-class office building. When
granting its consent, Landlord may impose any conditions it deems appropriate,
including, without limitation, the approval of plans and specifications,
approval of the contractor or other persons who will perform the work, and the
obtaining of specified insurance. All Building Improvements or Improvements
permitted by Landlord must conform to all laws, regulations and requirements of
the Federal, Virginia and Fairfax County governments: As a condition precedent
to such written consent of Landlord, Tenant agrees to obtain and deliver to
Landlord written, unconditional waivers of mechanic's and materialmen's liens
against the Office Building and the land upon which it is situated from all
proposed contractors, subcontractors, laborers and material suppliers for all
work, labor and services to be performed and materials to be furnished in
connection with Improvements to the Premises. If, notwithstanding the foregoing,
any mechanic's or materialmen's lien is filed against the Premises, the Office
Building and/or the land upon which it is situated, for work claimed to have
been done for, or materials claimed to have been furnished to, the Premises, the
Office Building and/or the land upon which it is situated, such lien shall be
discharged by Tenant within ten (10) days thereafter, at Tenant's sole cost and
expense, by the
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payment thereof or by the filing of a bond. If Tenant shall fail to discharge
any such mechanic's or materialmen's lien, Landlord may, at its option,
discharge such lien and treat the cost thereof (including attorneys' fees
incurred in connection therewith) as additional rent payable with the next
monthly installment of base rent falling due; it being expressly agreed that
such discharge by Landlord shall not be deemed to waive or release the default
of Tenant in not discharging such lien. It is further understood and agreed that
in the event Landlord shall give its written consent to the making of any
Improvements to the Premises, such written consent shall not be deemed to be an
agreement or consent by Landlord to subject its interest in the Premises, the
Office Building or the land upon which it is situated to any mechanic's or
materialmen's liens which may be filed in connection therewith.
9.3 Tenant shall indemnify and hold Landlord harmless from and against
any and all expenses, liens, claims, liabilities and damages based on or
arising, directly or indirectly, by reason of the making of any improvements to
the Premises. If any Improvements are made without the prior written consent of
Landlord, Landlord shall have the right to remove and correct such Improvements
and restore the Premises to their condition immediately prior thereto, and
Tenant shall be liable for all expenses incurred by Landlord in connection
therewith. All Improvements to the Premises or Building Improvements to the
Office Building made by either party shall remain upon and be surrendered with
the Premises as a part thereof at the end of the Lease Term, except that if
Tenant is not in default under this Lease, Tenant shall have the right to
remove, prior to the expiration of the Lease Term, all movable furniture,
furnishings and equipment installed in the Premises solely at the expense of
Tenant. All damage and injury to the Premises or the Office Building caused by
such removal shall be repaired by Tenant, at Tenant's sole expense. If such
property of Tenant is not removed by Tenant prior to the expiration or
termination of this Lease, the same shall become the property of Landlord and
shall be surrendered with the Premises as a part thereof.
ARTICLE X
---------
SIGNS AND FURNISHINGS
---------------------
10.1 Other than the Office Building standard signage identifying
Tenant (which is to be provided and installed by Landlord) on the Premises entry
door, no sign, advertisement or notice referring to Tenant shall be inscribed,
painted, affixed or otherwise displayed on any part of the exterior or the
interior of the Office Building, except on the directories and the doors of the
offices and such other areas as are designated by Landlord, and then only in
such place, number, size, color and style as are approved by Landlord. All of
Tenant's signs that are approved by Landlord shall be installed by Landlord at
Tenant's cost and expense. If any sign, advertisement or notice that has not
been approved by Landlord is exhibited or installed by Tenant, Landlord shall
have the right to remove the same at Tenant's expense. Landlord shall have the
right to prohibit any advertisement of or by Tenant which in its opinion tends
to impair the reputation of the Office Building or its desirability as a
high-quality office building and, upon written notice from Landlord, Tenant
shall immediately refrain from and discontinue any such advertisement. Landlord
reserves the right to affix, install and display signs, advertisements and
notices on any part of the exterior or interior of the Office Building.
10.2 Landlord shall have the right to prescribe the weight and
position of safes and other heavy equipment and fixtures, which, if considered
necessary by the Landlord, shall be installed in such manner as Landlord directs
in order to distribute their weight adequately. Any and all damage or injury to
the Premises or the Office Building caused by moving the property of Tenant into
or out of the Premises, or due to the same being in or upon the Premises, shall
be repaired by and at the sole cost of Tenant. No furniture, equipment or other
bulky matter of any description will be received into the Office Building or
carried in the elevators except as approved by Landlord, and all such furniture,
equipment and other bulky matter shall be delivered only through the designated
delivery entrance of the Office Building and the designated freight elevator.
All moving of furniture, equipment and other materials shall be under
supervision of Landlord, who shall not, however, be responsible for any damage
to or charges for moving the same. Tenant agrees to remove promptly from the
sidewalks adjacent to the Office Building any of Tenant's furniture, equipment
or other material there delivered or deposited. Notwithstanding the foregoing,
Tenant may move into and out of the Office Building on weekend days (Saturday or
Sunday) at no additional charge to Tenant so long as such moves do not exceed a
total of sixteen (16) hours of Landlord's supervision time. In the event Tenant
requires more than sixteen (16) hours, Tenant agrees to pay for the cost of such
supervision time in accordance with Landlord's then current schedule of costs
and assessments for such supervision time.
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ARTICLE XI
----------
TENANT'S EQUIPMENT
------------------
11.1 Tenant will not install or operate in the Premises any
electrically operated equipment or machinery that operates on greater than 110
volt power, except as may be specified in Exhibit B attached hereto, without
first obtaining the prior written consent of Landlord, which consent shall not
be unreasonably withheld. It shall not be unreasonable for Landlord to
condition such consent upon the payment by Tenant of additional rent in
compensation for the excess consumption of electricity or other utilities and
for the cost of any additional wiring or apparatus that may be occasioned by
the operation of such equipment or machinery. Tenant shall not install any
equipment of any type or nature that will or may necessitate any changes,
replacements or additions to, or in the use of, the water system, heating
system, plumbing system, air-conditioning system or electrical system of the
Premises or the Office Building, without first obtaining the prior written
consent of Landlord. Business machines and mechanical equipment belonging to
Tenant which cause noise or vibration that maybe transmitted to the structure
of the Office Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenant in the Office Building shall be
installed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to reduce such noise and vibration to a
level satisfactory to Landlord.
ARTICLE XII
-----------
INSPECTION BY LANDLORD
----------------------
12.1 Tenant will permit Landlord, or its agents or representatives, to
enter the Premises, without charge therefor to Landlord and without diminution
of the rent payable by Tenant, to examine, inspect and protect the Premises and
the Office Building, to make such alterations, including alterations to the
electrical and telephone systems in the building, and/or repairs as in the sole
judgment of Landlord may be deemed necessary, or to exhibit the same to
prospective tenants during the last one hundred eighty ( 180) days of the Lease
Term. In connection with such entry, Landlord shall endeavor to minimize the
disruption to Tenant's use of the Premises and, except in the event of
emergency, shall enter at reasonable times after not less than one (1) day prior
notice to Tenant.
ARTICLE XIII
------------
INSURANCE
---------
13.1 Without the prior written consent of Landlord, Tenant shall not
conduct or permit to be conducted any activity, or place any equipment in or
about the Premises or the Office Building, which will in any way increase the
rate of fire insurance or other insurance on the Office Building. If any
increase in the rate of fire insurance or other insurance is stated by any
insurance company or by the applicable Insurance Rating Bureau to be due to any
activity or equipment of Tenant in or about the Premises or the Office Building,
such statement shall be conclusive evidence that the increase in such rate is
due to such activity or equipment and, as a result thereof, Tenant shall be
liable for the amount of such increase. Tenant shall reimburse Landlord for such
amount within thirty (30) days of written demand from Landlord and such sum
shall be considered additional rent payable hereunder.
13.2 Throughout the Lease Term, Tenant shall obtain and maintain
public liability insurance in a company or companies licensed to do business in
the Commonwealth of Virginia and reasonably approved by the Landlord. Said
insurance shall be in minimum amounts reasonably approved by Landlord from time
to time and shall name Landlord as an additional insured thereunder. In
addition, if requested by the holder of any mortgage (as defined in Section
21.1 ) against the Office Building, said insurance shall also include a
standard mortgagee loss payable endorsement for the benefit of such holder. No
later than the Lease Commencement Date, Tenant shall obtain public liability
insurance in minimum amounts of five hundred thousand dollars ($500,000.00) for
injury to one (1) person, two million dollars ($2,000,000.00) for injury to
more than one (1) person and five hundred thousand dollars ($500,000.00) for
damage to property. Each such policy shall contain an endorsement prohibiting
cancellation or reduction of coverage without first giving Landlord fifteen
(15) days' prior written notice of such proposed action. Receipts evidencing
payment of the premium for such insurance shall be delivered by Tenant on or
before the Lease Commencement Date and, if requested by Landlord, at least
annually thereafter.
13.3 Tenant and Landlord hereby waive and release each other from any
and all liabilities, claims and losses
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for which either party is or may be held liable to the extent either party
receives insurance proceeds on account thereof.
13.4 Landlord and Tenant each waive any and all rights of recovery
against the other for any loss or damage occasioned to such waiving party or its
property or the property of others under its control to the extent that such
loss or damage is insured against under any first or extended coverage insurance
policy which either may have in force at the time of such loss or damage. Each
party shall obtain any special endorsement, if available at no additional cost
and if required by its insurer, to evidence compliance with the aforementioned
waiver.
ARTICLE IV
----------
SERVICES AND UTILITIES
----------------------
14.1 Landlord shall furnish to the Premises year-round ventilation and
air-conditioning and heat during the seasons when they are required, as
determined in Landlord's reasonable judgment and as are consistent with other
similar office buildings in the Fairfax County area. Landlord shall also provide
reasonably adequate char and janitorial service after 6:00 PM on Monday through
Friday only (excluding legal holidays) and shall provide semi-annual exterior
window cleaning, as determined in Landlord's sole but not unreasonable judgment,
and in accordance with standards customarily provided in first-class office
buildings in the Fairfax County area. Landlord will also provide elevator
service; provided, however, that Landlord shall have the right to remove
elevators from service as may be required for moving freight, or for servicing
or maintaining the elevators and/or the Office Building. Except in the event of
emergency, at least one elevator cab shall be available for use by Tenant at all
times. The normal hours of operation of the Office Building will be 8:00 AM to
6:00 PM on Monday through Friday (except legal holidays), and 9:00 AM to 1:00 PM
on Saturday (except legal holidays). There will be no normal hours of operation
of Office Building on Sundays or legal holidays and the Landlord shall not be
obligated to maintain or operate the Office Building on such days at such times
unless special arrangements are made by Tenant. The services and utilities
required to be furnished by Landlord, other than electricity and water, will be
provided only during the normal hours of operation of the Office Building,
except as otherwise specified herein. It is agreed that if Tenant requires
air-conditioning or heat beyond normal hours of operation set forth herein,
Landlord will furnish such air-conditioning or heat, provided Tenant gives
Landlord's agent not less than one (1) business days advance notice of such
requirement and Tenant agrees to pay for the cost of such extra service in
accordance with Landlord's then current schedule of costs and assessments for
such extra service.
14.2 Pursuant to Exhibit B attached hereto and made a part hereof,
Landlord shall provide one individual supplemental air-conditioning unit on the
roof of the Office Building to serve Tenant's computer room in Part A of the
Premises. Landlord shall install an electric submeter for the purpose of
determining the amount of electrical consumption of such air-conditioning unit.
Tenant hereby agrees to pay as additional rent the cost of all electric
consumption which is recorded on the electric submeter within thirty (30) days
of receipt of an invoice from Landlord.
14.3 It is understood and agreed that Landlord shall not have any
liability to Tenant whatsoever as a result of Landlord's failure or inability to
furnish any of the utilities or services required to be furnished by Landlord
hereunder, whether resulting from breakdown, removal from service for
maintenance or repairs, strikes, scarcity of labor or materials, acts of God,
governmental requirements or from any other cause whatsoever unless caused by
Landlord's gross negligence. It is further agreed that any such failure or
inability to furnish the utilities or services required hereunder shall not be
considered an eviction, actual or constructive, of the Tenant from the Premises,
and shall not entitle Tenant to terminate this Lease or to an abatement of any
rent payable hereunder. Notwithstanding the foregoing, in the event Tenant
cannot conduct its operations in the Premises as a result of Landlord's failure
or inability to furnish any such utility or service required to be furnished by
Landlord hereunder and such failure or inability is within Landlord's reasonable
control, then Tenant shall be entitled to rental abatement for the period
commencing on the sixth (6th) business day after such lack of utility or service
until the date on which the utility or service is restored.
14.4 The parties hereto agree to comply with all mandatory and
voluntary energy conservation controls and requirements applicable to office
buildings that are imposed or instituted by the Federal, Virginia or Fairfax
County governments, including, without limitation, controls on the permitted
range of temperature settings in office buildings, and requirements
necessitating curtailment of the volume of energy consumption or the hours of
operation of the Office Building. Any terms or conditions of this Lease that
conflict or interfere with compliance with such controls or
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requirements shall be suspended for the duration of such controls or
requirements. It is further agreed that compliance with such controls or
requirements shall not be considered an eviction, actual or constructive, of the
Tenant from the Premises and shall not entitle Tenant to terminate this Lease or
to an abatement of any rent payable hereunder.
ARTICLE XV
----------
LIABILITY OF LANDLORD
---------------------
15.1 Landlord shall not be liable to Tenant, its employees, agents,
business invitees, licensees, customers, clients, family members or guests for
any damage, injury, loss, compensation or claim, including but not limited to
claims for the interruption of or loss to Tenant's business, based on, arising
out of or resulting from any cause whatsoever, including but not limited to the
following: repairs to any portion of the Premises or the Office Building;
interruption in the use of the Premises, and accident or damage resulting from
the use or operation (by Landlord, Tenant or any other person or persons) of
elevators, or of the heating, cooling, electrical or plumbing equipment or
apparatus; the termination of this Lease by reason of the destruction of the
Premises or the Office Building; any fire, robbery, theft, mysterious
disappearance and/or any other casualty; the actions of any other tenants of the
Office Building or of any other person or persons; and any leakage in any part
or portion of the Premises or the Office Building, or from drains, pipes or
plumbing fixtures in the Office Building. Any goods, property or personal
effects stored or placed by the Tenant or its employees in or about the Premises
or Office Building shall be at the sole risk of the Tenant, and the Landlord
shall not in any manner be held responsible therefore. It is understood that the
employees of the Landlord are prohibited from receiving any packages or other
articles delivered to the Office Building for Tenant, and if any such employee
receives any such package or articles, such employee shall be acting as the
agent of the Tenant for such purposes and not as the agent of the Landlord.
Notwithstanding the foregoing provisions of this Section 15.1. Landlord shall
not be released from liability to Tenant for any damage or injury caused by the
gross negligence or willful misconduct of Landlord or its employees; provided,
however, in no event shall Landlord have any liability to Tenant for any claims
based on the interruption of or loss to Tenant's business.
15.2 Tenant hereby agrees to indemnify and hold Landlord harmless from
and against all costs, damages, claims, liabilities and expenses (including
attorney's fees) suffered by or claimed against Landlord, directly or
indirectly, based on, arising out of or resulting from, (i) Tenant's use and
occupancy of the Premises or the business conducted by Tenant therein, (ii) any
act or omission by Tenant or its employees, agents or invitees, or (iii) any
breach or default by Tenant in the performance or observance of its covenants or
obligations under this Lease.
15.3 In the event that at any time Landlord shall sell or transfer the
Office Building, provided the purchaser or transferee assumes the obligations of
the Landlord hereunder, the Landlord named herein shall not be liable to Tenant
for any obligations or liabilities based on or arising out of events or
conditions occurring on or after the date of such sale or transfer. Furthermore,
Tenant agrees to attorn to any such purchaser or transferee upon all the terms
and conditions of this Lease.
15.4 In the event that at any time during the Lease Term Tenant shall
have a claim against the Landlord. Tenant shall not have the right to deduct the
amount allegedly owed to Tenant from any rent or other sums payable to Landlord
hereunder, it being understood that Tenant's sole remedy for recovering upon
such claims shall be to institute an independent action against Landlord.
15.5 Tenant agrees that in the event Tenant is awarded a money judgment
against Landlord, Tenant's sole recourse for satisfaction of such judgment shall
be limited to execution against the interest of Landlord in the Office Building.
In no event shall any other assets of Landlord or any officer or director of
Landlord or any other person be held to have any personal liability for
satisfaction of any claims or judgments that Tenant may have against Landlord.
ARTICLE XVI
-----------
RULES AND REGULATIONS
---------------------
16.1 Tenant and its agents, employees, invitees, licensees, customers,
clients, family members, guests and permitted subtenants shall at all times
abide by and observe the rules and regulations attached hereto as Exhibit C. In
addition, Tenant and its agents, employees, invitees, licensees, customers,
clients, family members, guests and
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permitted subtenants shall abide by and observe all other rules or regulations
that Landlord may reasonably promulgate from time to time for the operation and
maintenance of the Office Building, provided that notice thereof is given to
Tenant and such rules and regulations are not inconsistent with the provisions
of this Lease. Nothing contained in this Lease shall be construed as imposing
upon Landlord any duty or obligation to enforce such rules and regulations, or
the terms, conditions, covenants contained in any other lease, as against any
other tenant, and Landlord shall not be liable to Tenant for the violation of
such rules or regulations by any other tenant or its employees, agents, business
invitees, licensees, customers, clients, family members or guests provided that
nothing contained herein shall be discriminatory against Tenant. If there is any
inconsistency between this Lease and the Rules and Regulations set forth in
Exhibit C, this Lease shall govern.
ARTICLE XVII
------------
DAMAGE OR DESTRUCTION
---------------------
17.1 If during the Lease Term. the Premises or the Office Building are
totally or partially damaged or destroyed from any cause, thereby rendering the
Premises totally or substantially inaccessible or unusable, Landlord shall
diligently (taking into account the time necessary to effectuate a satisfactory
settlement with any insurance company involved) restore and repair the Premises
and the Office Building to substantially the same condition they were in prior
to such damage; provided, however, if the damage or destruction was not caused
by Tenant, its employees, invitees, licensees, customers, clients, family
members, guests or permitted subtenants and if the repairs and restoration
cannot be completed within one hundred eighty (180) days after the occurrence of
such damage or destruction, including the time needed for removal of debris,
preparation of plans and issuance of all required governmental permits. Landlord
or Tenant shall have the right to terminate this Lease by giving written notice
of termination to the other party within forty-five (45) days after the
occurrence of such damage. In the event the damage or destruction was caused by
Tenant, its employees, invitees, licensees, customers, clients, family members,
guests or permitted subtenants, Landlord shall have the right, at its sole
option, to terminate this Lease by giving written notice of termination to
Tenant within forty-five (45) days after the occurrence of such damage or
destruction. If this Lease is terminated pursuant to the preceding sentence, all
rent payable hereunder shall be apportioned and paid to the date of the
occurrence of such damage. If this Lease is not terminated as a result of such
damage, and provided that such damage was not caused by the act or omission of
Tenant, or any of its employees, agents, licensees, subtenants, customers,
clients, family members or guests, until the repair and restoration of the
Premises is completed Tenant shall be required to pay base rent and additional
rent only for that part of the Premises that Tenant is able to use while repairs
are being made, based on the ratio that the amount of usable rentable area bears
to the total rentable area in the Premises. Landlord shall bear the costs and
expenses of repairing and restoring the Premises, except that if such damage or
destruction was caused by the act or omission of Tenant, or any of its
employees, agents, licensees, subtenants, customers, clients, family members or
guests, upon written demand from Landlord, Tenant shall pay to Landlord the
amount by which such costs and expenses exceed the insurance proceeds, if any,
received by Landlord on account of such damage or destruction.
17.2 If Landlord repairs and restores the Premises as provided in
Section 17.1, Landlord shall not be required to repair or restore any
decorations, alterations or improvements to the Premises previously made by or
at the expense of the Tenant or any trade figures, furnishings, equipment or
personal property belonging to Tenant. It shall be Tenant's sole responsibility
to repair and restore all such items.
17.3 Notwithstanding anything to the contrary contained herein, if the
Office Building is damaged or destroyed from any cause to such an extent that
the costs of repairing and restoring the Office Building would exceed fifty
percent (50%) of the replacement value of the Office Building, whether or not
the Premises are damaged or destroyed, Landlord or Tenant shall have the right
to terminate this Lease by written notice to the other party, provided the
leases of all other tenants in the Office Building are similarly terminated.
This right of termination shall be in addition to any other right of termination
provided in this Lease.
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ARTICLE XVIII
-------------
CONDEMNATION
------------
18.1 If the whole or a substantial part (as hereinafter defined) of the
Premises, or the use or occupancy of the Premises, shall be taken or condemned
by any governmental or quasi-governmental authority for any public or
quasi-public use or purpose (including a sale thereof under threat of such a
taking), then this Lease shall terminate on the date title thereto vests in such
governmental or quasi-governmental authority, and all rent payable hereunder
shall be apportioned as of such date. If less than a substantial part of the
Premises, or the use or occupancy thereof, is taken or condemned by any
governmental or quasi-governmental authority for any public or quasi-public
use or purpose (including a sale thereof under threat of such a taking),
this Lease shall continue in full force and effect, but the base rent and
additional rent thereafter payable hereunder shall be equitably adjusted (on
the basis of the ratio of the number of square feet of rentable area taken to
the total rentable area in the Premises prior to such a taking) as of the
date title vests in the governmental or quasi-governmental authority. For
purposes of this Section 18.1, a substantial part of the Premises shall be
considered to have been taken if more than one-third (1/3) of the Premises is
rendered unusable as a result of such taking.
18.2 All awards, damages and other compensation paid by the condemning
authority on account of such taking or condemnation (or sale under threat of
such a taking) shall belong to Landlord, and Tenant hereby assigns to Landlord
all rights to such awards, damages and compensation. Tenant agrees not to make
any claim against the Landlord or the condemning authority for any portion of
such award or compensation attributable to damages to the Premises, the value of
the unexpired term of this Lease, the loss of profits or goodwill, leasehold
improvements or severance damages. Nothing contained herein, however, shall
prevent Tenant from pursuing a separate claim against the condemning authority
for the value of furnishings, equipment and trade fixtures installed in the
Premises at Tenant's expense and for relocation expenses, provided that such
claim does not in any way diminish the award or compensation payable to or
recoverable by Landlord in connection with such taking or condemnation.
ARTICLE XIX
-----------
DEFAULT BY TENANT
-----------------
19.1 The occurrence of any of the following shall constitute a default
by Tenant under this Lease:
(a) If Tenant shall fail to pay an installment of base rent or
additional rent when due, or shall fail to pay when due any other
payment required by this Lease within five (5) days of receipt of
written notice from Landlord of such failure to pay.
(b) If Tenant shall violate or fail to perform any other term,
condition, covenant or agreement to be performed or observed by
Tenant under this Lease and such violation or failure to perform
is not corrected within ten (10) days of receipt of written
notice from Landlord to cure such violation or failure to perform
unless Tenant has commenced and is proceeding to diligently to
cure such default so long as such default does not negatively
affect the Landlord, the operation of the Office Building or any
of the other tenants of the Office Building.
(c) If Tenant shall abandon the Premises.
(d) An Event of Bankruptcy as defined in Article 20.1.
19.2 If Tenant shall be in default under this Lease, Landlord shall
have the right, at its sole option, to terminate this Lease. With or without
terminating this Lease, Landlord may re-enter and take possession of the
Premises and the provisions of this Article XIX shall operate as a notice to
quit, any other notice to quit or of Landlord's intention to re-enter the
Premises being hereby expressly waived. If necessary, Landlord may
proceed to recover possession of the Premises under and by virtue of the laws
of the Commonwealth of Virginia, or by such other proceedings, including
re-entry and possession, as may be applicable. If Landlord elects to
terminate this Lease, everything contained in this Lease on the part of
Landlord to be done and performed shall cease without prejudice, however,
to the right of Landlord to recover from Tenant all rent and other sums
accrued up to the time of termination
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or recovery of possession by Landlord, whichever is later. Whether or not this
Lease is terminated by reason of Tenant's default, the Premises may be relet by
Landlord for such rent and upon such terms as are not unreasonable under the
circumstances and, if the full rental provided herein plus the costs, expenses
and damages hereafter described shall not be realized by Landlord, Tenant shall
be liable for all damages sustained by Landlord, including, without limitation,
deficiency in base rent and additional rent, reasonable attorney's fees,
brokerage fees, and the expenses of placing the Premises in rentable condition
similar to the condition of the Premises on the Lease Commencement Date. Any
damages or loss of rent sustained by Landlord may be recovered by Landlord, at
Landlord's option, at the time of the reletting, or in separate actions, from
time to time, as said damage shall have been made more easily ascertainable by
successive relettings, or, at Landlord's option, may be deferred until the
expiration of the Lease Term, in which event Tenant hereby agrees that the cause
of action shall not be deemed to have accrued until the date of expiration of
the Lease Term. The provisions contained in this Section 19.2 shall be in
addition to, and shall not prevent the enforcement of, any claim Landlord may
have against Tenant for anticipatory breach of this Lease.
19.3 All rights and remedies of Landlord set forth herein are in
addition to all other rights and remedies available to Landlord at law or in
equity. All rights and remedies available to Landlord hereunder or at law or in
equity are expressly declared to be cumulative. The exercise by Landlord of any
such right or remedy shall not prevent the concurrent or subsequent exercise of
any other right or remedy. No delay in the enforcement or exercise of any such
right or remedy shall constitute a waiver of any default by Tenant hereunder or
of any of Landlord's rights or remedies in connection therewith. Landlord shall
not be deemed to have waived any default by Tenant hereunder unless such waiver
is set forth in a written instrument signed by Landlord. If Landlord waives in
writing any default by Tenant, such waiver shall not be construed as a waiver of
any covenant, condition, or agreement set forth in this Lease except as to the
specific circumstances described in such written waiver.
19.4 If Landlord shall institute proceedings against Tenant and a
compromise or settlement thereof shall be made, the same shall not constitute a
waiver of the same or of any other covenant, condition or agreement set forth
herein, nor of any of Landlord's rights hereunder. Neither the payment by
Tenant of a lesser amount than the installments of base rent, additional rent
or of any sums due hereunder nor any endorsement or statement on any check or
letter accompanying a check for payment of rent or other sums payable hereunder
shall be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
rent or other sums or to pursue any other remedy available to Landlord. No
re-entry by Landlord, and no acceptance by Landlord of keys from Tenant, shall
be considered an acceptance of a surrender of this Lease.
19.5 If Tenant defaults in the making of any payment or in the doing
of any act herein required to be made or done by Tenant, then Landlord may, but
shall not be required to, make such payment or do such act. If Landlord elects
to make such payment or do such act, all costs and expenses incurred by Landlord
plus interest thereon at the rate per annum which is two (2) percentage points
higher than the rate of interest announced from time to time by NationsBank as
being its "prime rate" (hereandafter referred to as the "NationsBank Prime
Rate") from the date paid by Landlord to the date of payment thereof by Tenant,
shall be immediately paid by Tenant to Landlord; provided however, that nothing
contained herein shall be construed as permitting Landlord to charge or receive
interest in excess of the maximum legal rate then allowed by law. The taking of
such action by Landlord shall not be considered as a cure of such default by
Tenant or prevent Landlord from pursuing any remedy it is otherwise entitled to
in connection with such default.
19.6 If Tenant fails to make any payment of base rent or of additional
rent on or before the date such payment is due and payable, Tenant shall pay to
Landlord a late charge of five percent (5%) of the amount of such payment. In
addition, in the event payment is not made within thirty (30) days and/or occurs
more than once in any twelve (12) month period, such payment shall bear interest
at the rate per annum which is two (2) percentage points higher than the
NationsBank Prime Rate from the date such payment became due to the date of
payment thereof by Tenant; provided, however, that nothing contained herein
shall be construed as permitting Landlord to charge or receive interest in
excess of the maximum legal rate then allowed by law. Such late charge and
interest shall constitute additional rent due and payable hereunder with the
next installment of base rent due hereunder.
19.7 At any time after a default by Tenant hereunder, and Tenant's
failure to cure the default in accordance with Section 19.1, Landlord may seize
and take possession of any and all personal property and equipment belonging to
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Tenant which may be found in and upon the Premises. If Tenant fails to redeem
the personal property and equipment so seized by payment of all sums due
Landlord under and by virtue of this Lease, Landlord shall have the right, after
forty-five (45) days' written notice to Tenant, to sell such personal property
and equipment so seized at public or private sale and upon such terms and
conditions as to Landlord may appear advantageous. After the payment of all
proper charges incident to such sale, the proceeds thereof shall be applied to
the payment of any and all sums due to Landlord pursuant to this Lease. In the
event there shall be any surplus remaining after the payment of all sums due to
Landlord, such surplus shall be paid over to Tenant.
ARTICLE XX
----------
BANKRUPTCY
----------
20.1 The following shall be Events of Bankruptcy under this Lease:
(a)Tenant's becoming insolvent, as that term is defined in Title 11 of
the United States Code (the "Bankruptcy Code"), or under the insolvency laws of
any state, district, commonwealth or territory of the United States (the
"Insolvency Laws");
(b) The appointment of a receiver or custodian for any or all of
Tenant's property or assets, or the institution of a foreclosure action upon any
of Tenant's real or personal property;
(c) The filing of a voluntary petition under the provisions of the
Bankruptcy code or Insolvency Laws;
(d) The filing of an involuntary petition against Tenant as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which either,
(i) is not dismissed within thirty (30) days of filing, or (ii) results in the
issuance of an order for relief against the debtor; or
(e) Tenant's making or consenting to an assignment for the benefit of
creditors or a common law composition of creditors.
20.2(a) Upon occurrence of an Event of Bankruptcy, Landlord shall have
all rights and remedies available to Landlord pursuant to Article XIX: provided
that while a case in which Tenant is the subject debtor under the Bankruptcy
Code is pending and only for so long as Tenant or its Trustee in Bankruptcy
(hereinafter referred to as "Trustee") is in compliance with the provisions of
Sections 20.2(b), (c) and (d) below, Landlord shall not exercise its rights and
remedies pursuant to Article XIX.
(b) [n the event Tenant becomes the subject debtor in a case pending
under the Bankruptcy Code. Landlord's right to terminate this Lease pursuant to
Section 20.2(a) shall be subject to the rights of Trustee to assume or assign
this Lease. Trustee shall not have the right to assume or assign this Lease
unless Trustee promptly, (i) cures all defaults under this Lease, (ii)
compensates Landlord for monetary damages incurred as a result of such defaults,
and (iii) provides adequate assurance of future performance on the part of
Tenant as debtor in possession or on the part of the assignee tenant.
(c) Landlord and Tenant hereby agree in advance that adequate assurance
of future performance, as used in Section 20.2(b) above, shall mean that all of
the following minimum criteria must be met: (i) Tenant's gross receipts in the
ordinary course of business during the thirty (30) day period immediately
preceding the initiation of the case under the Bankruptcy Code must be at least
two (2) times greater than the next monthly installment of annual base rent and
additional rent due under this Lease; (ii) Both the average and median of
Tenant's gross receipts in the ordinary course of business during the six (6)
month period immediately preceding the initiation of the case under the
Bankruptcy Code must be at least two (2) times greater than the next monthly
installment of annual base rent and additional rent due under this Lease; (iii)
Tenant must pay its estimated pro rata share of the cost of all services
provided by Landlord (whether directly or through agents or contractors and
whether or not previously included as part of the annual base rent), in advance
of the performance or provision of such services; (iv) Trustee must agree that
Tenant's business shall be conducted in a first class manner, and that no
liquidating sales, auctions, or other non-first class business operations shall
be conducted on the premises; (v) Trustee must agree that the use of the
Premises as stated in this Lease will
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remain unchanged and that no prohibited use shall be permitted; (vi) Trustee
must agree that the assumption or assignment of this Lease will not violate or
affect the rights of other tenants in the Office Building; (vii) Trustee must
pay to Landlord at the time the next monthly installment of annual base rent is
due under this Lease, in addition to such installment of annual base rent, an
amount equal to the monthly installments of annual base rent and additional rent
due under this Lease for the next six months under this Lease, said amount to be
held by Landlord in escrow until either Trustee or Tenant defaults in its
payment of rent or other obligations under this Lease (whereupon Landlord shall
have the right to draw on such escrowed funds) or until the expiration of this
Lease (whereupon the funds shall be returned to Trustee or Tenant); and (viii)
Tenant or Trustee must agree to pay to Landlord at any time Landlord is
authorized to and does draw on the escrow account the amount necessary to
restore such escrow account to the original level required by Section
20.2(c)(vii).
(d) In the event Tenant is unable to, (i) cure its defaults, (ii)
reimburse the Landlord for its monetary damages, (iii) pay the rent due under
this Lease and all other payments required of Tenant under this Lease on time
(or within five (5) days of the due date) or, (iv) meet the criteria and
obligations imposed by Section 20.2(c) above. Tenant agrees in advance that it
has not met its burden to prove adequate assurance of future performance, and
this Lease may be terminated by Landlord in accordance with Section 20.2(a)
above.
ARTICLE XXI
-----------
SUBORDINATION
-------------
21.1 This Lease is subject and subordinate to the lien of any and all
mortgages (which term "mortgages" shall include both construction and permanent
financing and shall include deeds of trust and similar security instruments)
which may now encumber the Office Building, and to all and any renewals,
extensions, modifications, recastings or refinancing thereof. This Lease shall
also be subject and subordinate to the lien of, (i) any new first mortgage that
hereafter may encumber the Office Building, and (ii) any second or junior
mortgages that may hereafter encumber the Office Building, provided the holder
of the first mortgage consents to such subordination. At any time after the
execution of this Lease, the holder of any mortgage to which this Lease is
subordinate shall have the right to declare this Lease to be superior to the
lien of such mortgage and Tenant agrees to execute all documents required by
such holder in confirmation thereof.
21.2 In confirmation of the foregoing subordination, Tenant shall, at
Landlord's request, promptly execute any requisite or appropriate certificate or
other document within ten ( 10) business days of receipt of request. In the
event Tenant fails to execute any such certificate or other document within said
ten (10) day period. Tenant hereby constitutes and appoints Landlord as Tenant's
attorney-in-fact to execute any such certificate or other document for or on
behalf of Tenant. Tenant agrees that in the event any proceedings are brought
for the foreclosure of any mortgage encumbering the Office Building, Tenant
shall attorn to the purchaser at such foreclosure sale, if requested to do so
by such purchaser, and shall recognize such purchaser as the Landlord under this
Lease, and Tenant waives the provisions of any statute or rule of law, now or
hereafter in effect, which may give or purport to give Tenant any right to
terminate or otherwise adversely affect this Lease and the obligations of Tenant
hereunder in the event any such foreclosure proceeding is prosecuted or
completed.
21.3 Landlord agrees to use reasonable efforts to obtain from the
current holder of the first mortgage or deed of trust on the Office Building a
Subordination, Non-Disturbance and Attornment Agreement on such mortgagee's
standard form which provides that, in the event of foreclosure or a transfer in
lieu thereof, Tenant will not be disturbed in its possession so long as: (a) no
uncured default after the applicable grace period (if any) has occurred on the
part of Tenant under this Lease, and (b) Tenant attorns to the purchaser or
transferee as landlord under this Lease, in which case this Lease shall,
notwithstanding the foreclosure or transfer in lieu thereof, continue in full
force and effect upon and subject to all terms, conditions, covenants and
agreements of this Lease.
ARTICLE XXII
------------
HOLDING OVER
------------
22.1 In the event that Tenant shall not immediately surrender the
Premises on the date of the expiration of the Lease Term, Tenant shall become a
Tenant by the month at a monthly rent equal to one and one-half (1.5) times the
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sum of the base rent and all additional rent in effect during the last month of
the Lease Term. Said monthly tenancy shall commence on the first day following
the expiration of the Lease Term. As a monthly tenant, Tenant shall be subject
to all the terms, conditions, covenants and agreements of this Lease. Tenant
shall give to Landlord at least thirty (30) days' written notice of any
intention to quit the Premises, and Tenant shall be entitled to thirty (30)
days' written notice to quit the Premises, unless Tenant is in default
hereunder, in which event Tenant shall not be entitled to any notice to quit,
the usual thirty (30) days' notice to quit being hereby expressly waived.
Notwithstanding the foregoing provisions of this Section 22.1, in the event that
Tenant shall hold over after the expiration of the Lease Term, and if Landlord
shall desire to regain possession of the Premises promptly at the expiration of
the Lease Term, then at any time prior to Landlord's acceptance of rent from
Tenant as a monthly tenant hereunder, Landlord, at its option, may forthwith
re-enter and take possession of the Premises without process, or by any legal
process in force in the Commonwealth of Virginia.
ARTICLE XXIII
-------------
COVENANTS OF LANDLORD
---------------------
23.1 Landlord covenants that it has the right to make this Lease for
the term aforesaid, and that if Tenant shall pay all rent when due and
punctually perform ail the covenants, terms, conditions and agreements of this
Lease to be performed by Tenant, Tenant shall, during the term hereby created,
freely, peaceably and quietly occupy and enjoy the full possession of the
Premises without molestation or hindrance by Landlord or any party claiming
through or under Landlord, subject to the provisions of Section 23.2 hereof.
Tenant acknowledges and agrees that its leasehold estate in and to the Premises
vests on the date this Lease is executed, notwithstanding that the term of this
Lease will not commence until a future date.
23.2 Landlord hereby reserves to itself and its successors and assigns
the following rights (all of which are hereby consented to by Tenant): (i) to
change the street address and/or name of the Office Building and/or the
arrangement and/or location of entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets, or other public parts of the Office
Building; (ii) to erect, use and maintain pipes and conduits in and through the
Premises; and (iii) to grant to anyone the exclusive right to conduct any
particular business or undertaking in the Office Building. Landlord may exercise
any or all of the foregoing rights without being deemed to be guilty of an
eviction, actual or constructive, or a disturbance or interruption of the
business of Tenant or of Tenant's use or occupancy of the Premises.
Notwithstanding anything to the contrary, Landlord's rights shall not adversely
affect Tenant's access to the Office Building or the Premises.
23.3 Landlord, at its cost, shall install fluorescent light fixtures as
provided in Exhibit B attached hereto and all replacement tubes for such light
fixtures; all other bulbs, tubes and lighting fixtures for the Premises shall be
provided and installed by Landlord at Tenant's cost and expense.
23.4 Landlord shall warrant that, to the best of its actual knowledge,
no hazardous substances are located in, or under the Building; provided,
however, that Landlord hereby advises Tenant, and Tenant hereby acknowledges
that water in the Building may contain lead at levels which are not in
compliance with environmental laws. Landlord agrees that it shall provide
bottled water to Tenant, its employees and invitees, until such time as the
lead in the drinking water of the Office Building water coolers is returned
to levels which comply with environmental laws. Tenant shall notify and advise
its agents, employees, invitees, licensees, customers, clients, family
members, guests and permitted subtenants that the water in the sinks of the
common area restrooms is not in compliance with environmental laws and is not
for cooking or consumption.
ARTICLE XXIV
------------
GENERAL PROVISIONS
------------------
24.1 Tenant acknowledges that neither Landlord nor any broker, agent or
employee of Landlord has made any representations or promises with respect to
the Premises or the Office Building except as herein expressly set forth, and no
rights, privileges, easements or licenses are being acquired by Tenant except as
herein expressly set forth.
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24.2 Nothing contained in this Lease shall be construed as creating a
partnership or joint venture of or between Landlord and Tenant, or to create any
other relationship between the parties hereto other than that of Landlord and
Tenant.
24.3 Landlord recognizes Smithy Braedon and The Rome Group, Inc. as the
sole brokers procuring this Lease and shall pay said brokers a commission
pursuant to a separate agreement between said brokers and Landlord. Landlord and
Tenant each represent and warrant to the other that, except as provided above,
neither of them has employed or dealt with any broker, agent or finder in
carrying on the negotiations relating to this Lease. Tenant shall indemnify and
hold Landlord harmless from and against any claim or claims for brokerage or
other commissions asserted by any broker, agent or finder engaged by Tenant or
with whom Tenant has dealt, other than the brokers named in the first sentence
of this Section 24.3.
24.4 Tenant agrees, at any time and from time to time, upon not less
than ten ( 10) business days' prior written notice by Landlord, to execute,
acknowledge and deliver to Landlord a statement in writing, (i) certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the Lease is in full force and effect as modified and
stating the modifications); (ii) stating the dates to which the rent and any
other charges hereunder have been paid by Tenant; (iii) stating whether or not,
to the best knowledge of Tenant, Landlord is in default in the performance of
any covenant, agreement or condition contained in this Lease, and if so,
specifying the nature of such default; and (iv) stating the address to which
notices to Tenant are to be sent. Any such statement delivered by Tenant may be
relied upon by any owner of the Office Building or the land upon which it is
situated, any prospective purchaser of the Office Building or such land, any
mortgagee or prospective mortgagee of the Office Building or such land or of
Landlord's interest therein, or any prospective assignee of any such mortgagee.
24.5 In the event that Landlord fails to comply with any provision of
this Lease, Tenant shall take no action of any kind to remedy such failure
unless and until Tenant has given both Landlord and the then-current holder of
the first deed of trust secured by the Office Building written notice of the
nature of such failure and a reasonable time in which to correct such failure.
24.6 Landlord and Tenant each hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of them against the other in
connection with any matter arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant hereunder, Tenant's use or
occupancy of the Premises, and/or any claim of injury or damage.
24.7 All notices or other communications required hereunder shall be in
writing and shall be deemed duly given if delivered in person (with receipt
therefor), or if sent by certified or registered mail, return receipt requested,
postage prepaid, to the following addresses: (i) if to Landlord at 0000 Xxx
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 or at such other address as
may be communicated to Tenant in writing by any assignee of Landlord, (ii) if to
Tenant, at the Premises, except that prior to the Lease Commencement Date,
notices to Tenant shall be sent to such address as Tenant shall designate and
inform Landlord. Either party may change its address for the giving of notices
given in accordance with this Section.
24.8 If any provision of this Lease or the application thereof to any
person or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each provision of this Lease shall be valid and
enforced to the fullest extent permitted by law.
24.9 Feminine or neuter pronouns shall be substituted for those of the
masculine form, and the plural shall be substituted for the singular number, in
any place or places herein in which the context may require such substitution.
24.10 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, successors and assigns, subject to the provisions hereof
restricting assignment or subletting by Tenant.
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24.11 This Lease contains and embodies the entire agreement of the
parties hereto and supersedes all prior agreements, negotiations and discussions
between the parties hereto. Any representations, inducement or agreement that
is not contained in this Lease shall not be of any force or effect. This Lease
may not be modified or changed in whole or in part in any manner other than by
an instrument in writing duly signed by both parties hereto.
24.12 This Lease shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia.
24.13 Article and section headings are used herein for the convenience
of reference and shall not be considered when construing or interpreting this
Lease.
24.14 The submission of any unsigned copy of this document to Tenant
for Tenant's consideration does not constitute an offer to lease the Premises or
an option to or for the Premises. This document shall become effective and
binding only upon the execution and delivery of this Lease by both Landlord and
Tenant.
24.15 Time is of the essence of each provision of this Lease.
24.16 This Lease is being executed in multiple counterparts, each of
which shall be deemed an original and ail of which together shall constitute one
and the same document.
24.17 This Lease shall not be recorded, except that upon the request of
either party, the parties agree to execute, in recordable form, a short-form
memorandum of this Lease, provided that such memorandum shall not contain any of
the specific rental terms set forth herein. Such memorandum may be recorded in
the land records of Fairfax County, Virginia and the party desiring such
recordation shall pay all recordation costs.
24.18 The rentable area in the Office Building and in the Premises
shall be determined in accordance with the 1989 Washington Board of Realtors
Standard Floor Area Measure.
24.19 This Lease includes twenty-one (21) pages and incorporates
Exhibits A, B and C attached hereto.
24.20 Xxxx X. Xxxxxx. Executive Vice President of Landlord is a
licensed Virginia Real Estate Broker with the firm of Aeromaritime Company Real
Estate, Ltd., T/A ACRE, Ltd.
IN WITNESS WHEREOF. Landlord and Tenant have executed this Lease on or
as of the day and year first above written.
ATTEST: LANDLORD:
Aeromaritime Investment Company
/s/ Xxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
___________________________ By: _______________________________
Xxxx X. Xxxxxx
Its: Executive Vice President
ATTEST: TENANT:
Information Analysis, Inc.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxx X. XxXxxx
___________________________ By: _______________________________
Executive Vice President
Its: _______________________________
66
EXHIBIT A TO THE LEASE BETWEEN
INFORMATION ANALYSIS, INC. and AEROMARITIME INVESTMENT COMPANY
THE PREMISES
PART A OF THE PREMISES
PAGE 1 OF 2
67
PART B OF THE PREMISES
PAGE 2 OF 2
68
EXHIBIT B TO THE LEASE BETWEEN
INFORMATION ANALYSIS, INC.
AND
AEROMARITIME INVESTMENT COMPANY
TENANT IMPROVEMENTS
PART A OF THE PREMISES
----------------------
1) Landlord, at Landlord's sole cost and expense, shall: (i) provide
all architectural, engineering and working drawings and building permits
required to complete the tenant improvements for Part A of the Premises as set
forth in this Exhibit B and Exhibit B-1 attached hereto, and (ii) construct the
tenant improvements pursuant to the plan (hereinafter referred to as the "Part A
Plan") dated December 6, 1996 prepared by JCA Architects and approved on
December 10, 1996 by Xxxxxxx X. XxXxxx, Executive Vice President of Information
Analysis, Inc. and in accordance with all applicable building and fire codes,
utilizing the following finishes:
A) Drywall partitioning pursuant to Exhibit B-1. All walls to receive two
coats of paint in Tenant's choice of color from Building standard colors
with one color to be used throughout.
B) One oak veneer, solid core double suite entry door and two oak veneer, solid
core single suite entry doors
C) Solid core, hardboard interior doors with metal jambs and Building standard
hardware. Doors and jambs will be painted to match wall color.
D) Philadelphia Impact III Carpet, 30 ounce weight throughout (except in
galleys and shower area), in Tenant's choice of color from standard
available colors. Reception Area and Conference Room #1 to receive a carpet
border in Philadelphia Impact III Carpet around the perimeter of each area.
E) Galley 1 and 2 to receive Xxxxxxxxx vinyl tile in Tenant's choice of color
from Building standard colors.
F) Shower area to receive white ceramic tile.
G) 4" vinyl cove base throughout in Tenant's choice of color from Building
standard colors.
H) Ceilings will be finished with Building standard 2' x 2' suspended
acoustical tile.
I) Horizontal thin line venetian blinds as presently installed at all windows
except sliding glass doors.
J) All areas (except Reception Area and Conference Room #1) to receive 2' x 4'
fluorescent ceiling light fixtures. Reception Area to receive six 2' x 4'
parabolic light fixtures and four directional high-hat light fixtures.
Conference Room #1 to receive six 2' x 4' parabolic light fixtures and eight
directional high-hat light fixtures.
K) All areas to receive reasonable electrical outlets, light switches and
telephone/data outlets as set forth in Part A Plan. In the event Tenant
decides to utilize systems furniture, Tenant agrees that Landlord shall not
be responsible for obtaining any required permits from Fairfax County for
the installation of Tenant's systems furniture. Tenant, at Tenant's sole
expense, shall obtain any such required permits. Tenant's failure to obtain
any such required permits shall not delay the Lease Commencement Date.
L) One roof mounted supplemental air-conditioning unit to serve the Computer
Room.
M) Galley 1 and 2 will to receive Xxxxxxxx Homestead Oak cabinets, a laminate
countertop in Tenant's choice of color from Building standard colors, a
stainless steel sink and faucet. Galley 1 to receive 1/2" cold water line
with backflow preventer to ice maker of Tenant provided refrigerator. Tenant
to provide an undercounter refrigerator in Galley 2.
N) Workroom to receive a 30" deep countertop along south wall with two shelves
above.
O) Shower area to receive one handicapped accessible shower and lavatory.
PART B OF THE PREMISES
----------------------
2) Landlord shall provide a tenant improvement allowance of $15.00 per rentable
square of space leased in Part B of the Premises with which Landlord shall: (i)
provide all architectural, engineering and working drawings and building permits
to complete the tenant improvements for Part B of the Premises as set forth in
this Exhibit B and Exhibit B-2 attached hereto, and (ii) construct the tenant
improvements pursuant to the plan (hereinafter referred to
69
as the "Part B Plan") dated December 11, 1996 prepared by JCA Architects and
approved on December 16, 1996 by Xxxxxxx X. XxXxxx. Executive Vice President of
Information Analysis, Inc. and in accordance with all applicable building and
fire codes, utilizing the following finishes:
A) Drywall partitioning pursuant to Exhibit B-2. All walls to receive two coats
of paint in Tenant's choice of color from Building standard colors with one
color to be used throughout.
B) Two oak veneer, solid core single suite entry doors.
C) Solid core, hardboard interior doors with metal jambs and Building standard
hardware. Doors and jambs will be painted to match wall color.
D) Philadelphia Volunteer 20 loop carpet, 20 ounce weight throughout (except in
the kitchen) in Tenant's choice of color from standard available colors.
E) Kitchen to receive Xxxxxxxxx vinyl tile in Tenant's choice of color from
Building standard colors.
F) 4" vinyl cove base throughout in Tenant's choice of color from Building
standard colors.
G) Ceilings will be finished with Building standard 2' x 2' suspended
acoustical tile.
H) Horizontal thin line venetian blinds as presently installed at all windows.
I) 2' x 4' fluorescent ceiling light fixtures, electrical outlets, light
switches and telephone/ date outlets as set forth in Part B Plan.
J) Kitchen to receive Xxxxxxxx Homestead Oak cabinets, a laminate countertop in
Tenant's choice of color from Building standard colors, a stainless steel
sink and faucet. Tenant to provide an undercounter refrigerator.
K) Demo Room to receive two 6' x 4' windows inset into the wall pursuant to
Exhibit B-2.
Tenant hereby acknowledges and agrees that the cost of the tenant improvements
set forth in Exhibit B for Part B of the Premises exceeds the $15.00 per
rentable square foot allowance provided by Landlord. Tenant hereby agrees to pay
Landlord in full within five days of receipt of an invoice for the total amount
by which the tenant improvements exceed the $15.00 allowance. It is presently
estimated that the excess to be paid by Tenant is approximately $5,000.00,
however the amount may exceed or be less than that amount. Tenant's failure to
make timely payment to Landlord for the excess cost shall be considered
a default as the term is defined in the Lease.
3) For purposes of this Lease, a Tenant delay shall mean any delay which causes
a delay in the substantial completion of Landlord's work and/or the issuance of
a Certificate of Occupancy for the Premises which are a result of any of the
following:
a) Changes in or modifications to the architectural drawings which are
requested by Tenant.
b) Changes in or modifications to the engineering or working
drawings which are requested by Tenant.
c) Tenant's failure to provide information and finish and/or color
selections as requested by Landlord.
d) Tenant's request for work, materials or finishes outside the
scope of work in Paragraph 1 of this Exhibit B.
e) The performance by a person, firm or corporation employed or
engaged by Tenant with Landlord's written consent and the completion of work
by such persons, firms or corporations, or any delay such persons, firms or
corporations cause in the work on the Premises being performed by the Office
Building general contractor, its subcontractors and materialsmen or employees
of Landlord.
4) In the event of any Tenant delay which delays the issuance of a Certificate
of Occupancy for the Premises, Landlord shall be entitled to: i) schedule the
Lease Commencement Date for the date on which the Lease Commencement Date would
otherwise have occurred but for such Tenant delay or, ii) extend the Lease
Commencement Date to a later date in which event Tenant shall pay to Landlord on
such extended Lease Commencement Date per diem liquidated damages for each day
of delay equal to the per diem rent as specified in Article III, Section 3.1 of
the Lease.
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EXHIBIT B-1
PART A OF THE PREMISES
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EXHIBIT B-2
PART B OF THE PREMISES
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EXHIBIT C TO THE LEASE BETWEEN
INFORMATION ANALYSIS, INC.
and
AEROMARITIME INVESTMENT COMPANY
RULES AND REGULATIONS
1) The sidewalks, halls, passages, exits, entrances, lobbies, elevators, and
stairways of the Office Building shall not be obstructed by any of the tenants
or used by them for any purpose other than for ingress to and egress from their
respective premises. The halls, passages, exits, entrances, lobbies, elevators
and stairways are not for the general public and Landlord shall in all cases
retain the right to control and prevent access thereto of all persons whose
presence the judgment of Landlord would be prejudicial to the safety, character,
reputation and interest of the Office Building and its tenants, provided that
nothing herein contained shall be construed to prevent such access to persons
with whom any tenant normally deals in the ordinary course of its business,
unless such persons are engaged in illegal activities. No tenant and no employee
or invitee of any tenant shall go upon the roof of the Office Building. Landlord
shall have the right at any time without incurring any liability to Tenant
therefor to change the arrangement and/or location of entrances of passageways,
doors or doorways, corridors, toilets or other common areas of the Office
Building, provided such does not adversely effect Tenant's business.
2) No sign, placard, picture, name, advertisement or notice visible from the
exterior of any tenant's premises shall be inscribed, painted, affixed or
otherwise displayed by any tenant on any part of the Office Building without the
prior written consent of Landlord. All approved signs or lettering on doors
shall be printed, painted, affixed or inscribed at the expense of Landlord by a
person approved by Landlord. Material visible from outside the Office Building
will not be permitted. Landlord to provide building standard signage for suite
entry door at Landlord's sole cost.
3) The Premises shall not be used for the storage of merchandise held for sale
to the general public or for lodging. No cooking shall be done or permitted on
the Premises except by private use by Tenant of Underwriter's Laboratory
approved equipment, including microwave oven, for brewing coffee, tea, hot
chocolate and similar beverages provided that such use is in accordance with all
applicable Federal, state and municipal laws, codes, ordinances, rules and
regulations.
4) No tenant shall employ any person or persons other that the janitor of
Landlord for the purpose of cleaning its premises unless otherwise agreed to by
Landlord in writing. Except with the written consent of Landlord, no person or
persons other than those approved by Landlord shall be permitted to enter the
Office Building for the purpose of cleaning the same. No tenant shall cause any
unnecessary labor by reason of such tenant's carelessness or indifference in the
preservation of good order and cleanliness. Landlord shall not be responsible to
any tenant for any loss of property on its premises, however occurring, or for
any damage done to the effects of any tenant by the janitor or any other
employee or any other person.
5) Landlord has entered into an agreement with Honeywell for the furnishing of a
key type access system to the Office Building. Tenant will be provided with one
(1) key type access card for each 600 square feet of rentable area in the
Premises at Landlord's expense. Any additional access cards requested by Tenant
shall be at Tenant's expense. These access cards permit entry in the Office
Building lobby. Landlord has also agreed with Honeywell to provide each tenant
with a keyswitch tenant entry system. Tenant may upgrade, at Tenant's own
expense, this individual system with Landlord's prior written approval only.
Landlord accepts no liability whatsoever for delays in installation of the
equipment, or for interruption of service due to strikes, riots, floods, fires,
acts of God, or any causes beyond its control. Tenant agrees to indemnify and
hold harmless Landlord, Honeywell its successors and assigns, from any loss,
cost or expense on account of any claims for damages by any person arising out
of or in connection with the operation or non-operation of the system. Tenant
understands that Honeywell is not an insurer; Tenant shall provide its own
contents insurance. Tenant acknowledges that neither Landlord nor Honeywell make
any guarantee or warranty including any implied warranty of merchantability or
fitness that the system supplied will
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avert or prevent occurrences or consequences therefrom which this system is
designed to divert or detect. Tenant agrees to supply Landlord and Honeywell a
current list of employees and will immediately notify same of any changes. No
tenant shall alter any portion of the entry system on any door of its premises.
Each tenant, upon the termination of its lease, shall deliver to Landlord all
key type access cards to doors in the Office Building.
6) Landlord shall designate appropriate entrances and a service elevator for
deliveries or other movement to or from the Premises of equipment, materials,
supplies, furniture or other property, and Tenant shall not use any other
entrances or elevators for such purposes. The service elevator shall be
available for use by all tenants in the Office Building, subject to such
reasonable scheduling as Landlord in its discretion shall deem appropriate. All
persons employed and means or methods used to move equipment, materials,
supplies, furniture or other property in or out of the Office Building must be
approved by Landlord prior to any such movement. Landlord shall have the right
to prescribe the maximum weight, size and position of all equipment, materials,
furniture or other property brought into the Office Building. Heavy objects
shall, if considered necessary by Landlord, stand on a platform of such
thickness as is necessary to properly distribute the weight. Landlord will not
be responsible for loss or damage to any such property from any cause, and all
damage done to the Office Building by moving or maintaining such property shall
be repaired at the expense of the Tenant.
7) No tenant shall use or keep in its premises or the Office Building any
kerosene, gasoline or inflammable or combustible fluid or material other than
limited quantities thereof reasonably necessary for the operation or maintenance
of office equipment. No tenant shall use any method of heating or air
conditioning other than that supplied by Landlord. No tenant shall use or keep
or permit to be used or kept any foul or noxious gas or substance in its
premises, or permit or suffer its premises to be occupied of use in a manner
offensive or objectionable to Landlord or other occupants of the Office Building
by reason of noise, odors or vibrations, or interfere in any way with other
tenants or those having business in the Office Building, nor shall any animals
or birds be brought into or kept in its premises or the Office Building.
8) Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name or street address of the Office
Building, so long as such change is initiated by Fairfax County or any other
governmental agency.
9) Landlord establishes the hours 8:00 AM to 6:00 PM of each weekday and 9:00 AM
to 1:00 PM on Saturday as reasonable and usual business hours. If Tenant
requests electricity or heat or air-conditioning during any hours other that
those stated and if Landlord is able to provide the same, Tenant shall pay
Landlord such charges as Landlord shall establish from time to time for
providing such services during such hours. Any such charges which Tenant is
obligated to pay shall be deemed to be additional rent under the Lease.
10) Landlord reserves the right to exclude from the Office Building between the
hours of 6:00 PM and 8:00 AM and at all hours on Sundays and legal holidays all
persons who do not present identification acceptable to Landlord. Tenant shall
be liable to Landlord for all acts of any persons authorized by Tenant to enter
the Premises. Landlord shall in no case be liable for damages for any error with
regards to the admission to or exclusion from the Office Building of any
person. In the case of invasion, mob, riot, public excitement or other
circumstances rendering such action advisable in Landlord's opinion, Landlord
reserves the right to prevent access to the Office Building during the
continuance of the same by such action as Landlord may deem appropriate,
including closing doors.
11) A directory of the Office Building will be provided for the display of the
name and location of the tenants at the expense of Landlord. Landlord reserves
the right to restrict the amount of directory space utilized by any tenant.
12) No curtains, draperies, blinds (except building standard blinds), shutters,
shades, screens or other coverings, hangings or decorations shall be attached
to, hung or placed in, or used in connection with any window of the Office
Building without the prior written consent of Landlord which consent shall not
be unreasonably withheld, conditioned or delayed. In any event, with the prior
consent of Landlord, such items shall be installed on the office side of
Landlord's standard window covering and shall in no way be visible from the
exterior of the Office Building. Tenant shall use due diligence to keep window
coverings closed when the effect of sunlight (or lack thereof) would impose
unnecessary loads on the Office Building's heating or air-conditioning systems.
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13) No tenant shall obtain for use in its premises ice, drinking water, food.
beverage, towel or other similar services, except at such reasonable hours and
under such reasonable regulations as may be fixed by Landlord.
14) Each tenant shall use due diligence to ensure that the doors of its premises
are closed and locked and that all water faucets, water apparatus and utilities
are shut off before Tenant or Tenant's employees leave the Premises so as to
prevent waste or damage, and for any default or carelessness in this regard,
Tenant shall make good all injuries sustained by other tenants or occupants of
the Office Building or Landlord. On multiple-tenancy floors, all tenants
shall keep the doors to the Office Building corridors closed at all times except
for ingress and egress.
15) The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than for which they were constructed, 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.
16) Except with the prior written consent of Landlord, no tenant shall sell
retail newspapers, magazines, periodicals, theater or travel tickets or any
other goods or merchandise to the general public in or on its premises, nor
shall any tenant carry on or permit or allow any employee or other person to
carry on the business of stenography, typewriting, printing or photocopying or
any similar business in or from its premises for the service or accommodation of
occupants of any other portion of the Office Building, nor shall the premises of
any tenant be used for manufacturing of any kind, or any business or activity
other than that specifically provided for in such tenant's lease.
17) No tenant shall install any radio or television antenna, loudspeaker, or
other device on the roof or exterior walls of the Office Building without the
prior written consent of the Landlord which consent shall not be unreasonably
withheld. Landlord's consent shall be conditioned upon receipt from Tenant of
written specifications pertaining to the type of device to be installed and the
location of installation thereof. It shall not be unreasonable for Landlord to
withhold its consent if Landlord determines in its sole discretion that such
installation will negatively affect the Office Building and/or its tenants. No
television, radio or recorder shall be played in such a manner as to cause a
nuisance to any other tenant.
18) There shall not be used in any space, or in the public halls of the Office
Building, either by any tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material handling equipment as
Landlord may approve. No other vehicles of any kind shall be brought by any
tenant into the Office Building or kept in or about its premises.
19) Each tenant shall store all its trash and garbage within its premises. No
material shall be placed in the trash boxes or receptacle if such material is of
such nature that it may not be disposed of in the ordinary and customary manner
of removing and disposing of Office Building trash and garbage in Fairfax County
without being in violation of any law or ordinance governing such disposal. All
garbage and refuse disposal shall be made only through entry ways and elevators
provided for such purposes and at such times as Landlord shall designate.
20) Tenants shall not do, or permit anything to be done in or about the Office
Building, or bring or keep anything therein, that will in any way increase the
rate of fire or other insurance on the Office Building, or on property kept
therein, or obstruct or interfere with the rights of, or otherwise injure or
annoy, other tenants, or do anything in conflict with the valid pertinent laws,
rules or regulations of any governmental authority.
21) Canvassing, soliciting, distribution of handbills or any other written
material and peddling in the Office Building are prohibited, and each tenant
shall cooperate to prevent the same.
22) The non standard building requirements of tenants will be attended to only
upon application in writing at the office of the Office Building. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord.
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23) Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, or prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Office Building.
24) These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the agreements, covenants,
conditions and provisions of any lease of premises in the Office Building.
25) Landlord reserves the right to make such other reasonable rules and
regulations as in its judgment may from time to time be needed for the safety,
care and cleanliness of the Office Building and for the preservation of good
order therein.
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XXXXXXXX # 0
LEASE COMMENCEMENT ADDENDUM
LEASE AGREEMENT
FAIR CENTER OFFICE BUILDING
FAIRFAX, VIRGINIA
THE FOLLOWING SPECIAL PROVISIONS are attached to and hereby made a part of the
Lease Agreement dated December 20, 1996 between Aeromaritime Investment Company
(hereinafter referred to as "Landlord") and Information Analysis, Inc.
(hereinafter referred to as "Tenant"), for space in the Fair Center Office
Building located at 00000 Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx:
1) In accordance with Article II, Section 2.3 of the Lease, Landlord and
Tenant hereby establish February 28, 1997 as the Lease Commencement Date for the
Premises. Landlord and Tenant further hereby agree that the Lease Term will
expire on February 29, 2004.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Addendum #1 to Lease
on this 3rd day of March, 1997.
ATTEST: LANDLORD:
Aeromaritime Investment Company
/s/ Xxxxx Xxxx By /s/ Xxxx X. Xxxxxx
Its: Executive Vice President
ATTEST: TENANT:
Information Analysis, Inc.
/s/ Xxxxx Xxxx By /s/ Xxxxxxx X. XxXxxx
Xxxxxxx X. XxXxxx
Its: Executive Vice President
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