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EXHIBIT 10.113
OFFICE LEASE
THIS LEASE is made as of February 6, 1989, by and between XXXX
PROPERTIES-DATA LIMITED PARTNERSHIP, a Virginia limited partnership
("Lessor"), and THE COMPUTER COMPANY, a Virginia corporation ("Lessee").
1. Description of Premises. Lessor, in consideration of the rents to be
paid by Lessee and other covenants of Lessee contained herein, does hereby lease
to Lessee the premises described below (the "Premises"):
A parcel of land, located off Xxx Road in the Innsbrook Corporate Center,
Henrico County, Virginia, containing approximately five acres, more
particularly shown on the site plan attached hereto as Exhibit A (the
"Land"), together with (i) a three-story building containing approximately
69,311 rentable square feet and 71,800 gross square feet, parking area and
other site improvements to be constructed on the Land by Lessor as
hereinafter provided (the "Building") and (ii) an easement to use all
offsite utility lines now or hereafter serving the Building. Rentable
square feet shall be determined in the manner provided in Paragraph 5 of
the Rider attached hereto as a part hereof (the "Rider").
2. Term. The initial term of this lease shall be for a period of ten
(10) "lease years" (as defined in paragraph 36).
3. Rent. See Paragraphs 6 and 9 of Rider.
4. Acceptance of Premises. See Paragraph 5 of Rider.
5. Delay in Commencement. See Paragraph 1 of Rider.
6. Use and Compliance with Law. The Premises shall be used only for
general office purposes and as a computer center, and for no other purpose
without Lessor's prior written consent. Lessee shall not use the Premises for
any unlawful purpose or so as to constitute a nuisance. Lessee covenants and
agrees to comply with all restrictive covenants and ordinances and regulations
of governmental authorities applicable to Lessee's use of the Premises;
provided, however, that Lessee shall not be required to modify the Premises to
comply with any subsequently enacted governmental requirements unless same are
applicable because of Lessee's particular use of the Premises (other than
general office use and as a computer center).
7. Signs. See Paragraph 14 of Rider.
8. Quiet Enjoyment and Covenant of Title. Lessor covenants that it has
full right and power to execute this lease and to grant the estate demised
herein, and that Lessee, upon payment
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of the rents herein reserved and performing the terms, conditions, and
covenants herein contained, shall peacefully and quietly have, hold, and
enjoy the Premises during the full term of this lease, and any extension
hereof.
9. Lessor's Services. [Intentionally Omitted]
10. Utility Stop. [Intentionally Omitted]
11. Alterations by Lessee. Lessee shall not make any structural
alterations to the Premises (including, without limitation, roof penetrations)
without obtaining Lessor's prior written consent, which consent shall not be
unreasonably withheld. Lessee may make nonstructural alterations and
improvements, including interior walls and partitions and other tenant
improvements, without Lessor's consent. Any and all alterations, additions or
other improvements made by Lessee, with or without the consent of Lessor,
regardless of how attached (except movable trade fixtures, including panels,
workstations and full height panels), shall become immediately upon
installation and hereafter remain the property of Lessor, without compensation
therefor to Lessee, unless otherwise agreed in writing by Lessor.
12. Use of the Parking Facilities. Lessee and its employees, business
invitees and customers shall have the exclusive right to park automobiles in
the parking area provided by Lessor. See Paragraphs 11 and 13 of Rider.
13. Subleasing and Assignment. Lessee may assign this lease or
sublease the Premises without Lessor's prior approval, but any such assignment
or sublease shall not release Lessee of any of its obligations under this lease
arising before or after the effective date of the assignment of this lease or
sublease of the Premises. In addition, for so long as this lease continues in
effect and Lessee pays to Lessor the rent due hereunder, should the amount of
rent payable by a sublessee or assignee to Lessee exceed the rent payable by
Lessee hereunder, Lessor shall not be entitled to any of such excess.
14. Care of Premises. Lessee agrees to take good care of the Premises, and
shall not suffer or permit any waste or injury thereto. Upon the expiration or
termination of this lease, Lessee shall surrender the Premises in as good
condition as Lessee obtained same on the Commencement Date, reasonable wear
and tear excepted and subject to any alterations which Lessee is authorized
hereunder to make and any repairs which Lessor is obligated hereunder to make.
15. Damage to Premises. If the Premises shall be damaged by fire, the
elements, unavoidable accident or other casualty, but are not thereby rendered
untenantable in whole or in part, Lessor shall promptly at its expense cause
such damage to be repaired, and rent shall not be abated. If by reason of such
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occurrence the Premises shall be rendered partially untenantable, Lessor shall
promptly at its own expense cause the damage to be repaired, and rent meanwhile
shall be abated for the period of untenantablility in proportion to the portion
of the Premises rendered untenantable. If by reason of such occurrence all of
the Premises are rendered untenantable, Lessor shall promptly at its expense
cause the damage to be repaired, and rent shall xxxxx until the Premises are
again tenantable, unless within thirty (30) days after said occurrence Lessor
shall give Lessee written notice that the estimated time necessary to
reconstruct the destroyed Premises and Building is in excess of one hundred
twenty (120) days after commencement of reconstruction and Lessee elects to
terminate this Lease by written notice, to Lessor given within fifteen (15)
days after receipt of Lessor's notice. If so terminated, this lease and the
tenancy hereby created shall cease as of the date of casualty and all rent shall
be abated as of such date. Lessor shall not be obligated to reconstruct or
repair the Building or Premises (i) unless Lessee maintained insurance for such
purposes as required by this lease and (ii) except to the extent insurance
proceeds have been received or are to be made available upon completion of the
repairs or reconstruction (other than with respect to repairs costing $100,000
or less). Lessor shall not be required to repair, replace or insure any
property which the Lessee may be entitled to remove from the Premises. No
damages, compensation or claims shall be payable by Lessor for inconvenience,
loss of business or other consequential damages arising from any casualty or
restoration of the Premises or the Building except to the extent caused by
Lessor's negligence or failure to comply with its obligations under this lease.
All rent paid in advance shall be apportioned in accordance with the foregoing
provisions as of the date of damage. If this lease is not terminated on account
of such damage or destruction and Lessee so requests, Lessor shall undertake
reasonable efforts to provide to Lessee office space in one or more other
buildings in Innsbrook Corporate Center managed or controlled by Xxxx
Development Company for so long as the Premises remain untenantable (to the
extent such office space is then available), and in such case Lessee shall pay
the then prevailing rental rate for the space it occupies in such other office
buildings.
16. Liability. See Paragraphs 7 and 12 of Rider.
17. Inspection of Premises. Lessor and Lessor's agents shall have
reasonable access during normal business hours to the Premises for the purposes
of inspection, maintenance and repair. Lessor shall also have access to the
Premises without notice in the event of an emergency. Lessor shall have the
right to show the Premises to prospective tenants during the last one hundred
eighty (180) days of the term of this lease.
18. Condemnation. If all or a part of the Premises sufficient to render
same unusable for Lessee's purposes (in Lessee's reasonable judgment) or all
means of access to the Premises shall
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be condemned for a period in excess of ninety (90) days or sold under threat of
condemnation, this lease shall terminate and Lessee shall have no claim against
Lessor or to any portion of the award in condemnation for the value of any
unexpired term of this lease. Lessee may seek to recover independently
compensation from the condemning authority for moving expenses, the value of any
of Lessee's property taken (other than Lessee's leasehold interest in the
Premises) or other compensable loss or damage. In the event of a temporary
taking of ninety (90) days or less, this lease shall not terminate, but the
term hereof shall be extended by the period of the taking and the rent shall
xxxxx in proportion to the area taken for the period of such taking.
19. Default. See Paragraph 12 of Rider.
(a) If Lessee does not pay any rent or other sum payable by Lessee
pursuant to this lease and such default continues for a period of ten (10) days
after written notice is given to Lessee (provided, however, that no written
notice shall be required if Lessor has previously given written notice of
failure to pay rent on at least two separate occasions during the then current
calendar year), or if Lessee shall fail to perform any other covenant,
agreement, or obligation of Lessee pursuant to this lease and such default
continues for thirty (30) days after written notice thereof is given to Lessee
or if Lessee should become bankrupt or insolvent or any debtor proceedings are
taken by or against Lessee, or if Lessee vacates or attempts to vacate the
Premises, then Lessor shall have the following rights and remedies.
(i) Lessor may terminate this lease by written notice to Lessee, in
which event this lease, all rights of Lessee, and all duties of Lessor
shall immediately cease and terminate, and Lessor may re-enter and take
possession of the Premises, remove all persons and property from the
Premises and store such property in a public warehouse or elsewhere at the
cost of, and for the account of, Lessee and enjoy the Premises free of
Lessee's estate pursuant to this lease, without prejudice, however, to any
and all rights of action against Lessee that Lessor may have for rent
payable before the date of termination, damages, or breach of this lease,
in respect of which Lessee shall remain and continue liable
notwithstanding such termination; or
(ii) Lessor shall have the right to re-enter the Premises and remove
all persons and property from the Premises and store such property in a
public warehouse or elsewhere at the cost of, and for the account of,
Lessee, without terminating this lease. Lessor shall have the right to
take such action without service of notice except as may be expressly
required herein or by applicable law and without resort to legal process
(unless required by law) and without being deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned thereby.
If
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Lessor elects to re-enter the Premises as aforesaid, Lessor may, at any
time thereafter, elect to terminate this lease by giving written notice to
Lessee of such election. Whether or not Lessor elects to re-enter the
Premises or takes possession of the Premises pursuant to legal proceedings
or pursuant to any notice required by law, Lessor may, at its option,
re-let the Premises or any portion thereof for the benefit of Lessee for
such term or terms (whether shorter or longer than the term of this lease)
and at such rental and upon such other terms and conditions as Lessor, in
its reasonable discretion, deems advisable, and, at the expense of Lessee,
Lessor shall have the right to make such repairs or alterations to the
Premises as Lessor deems necessary in order to re-let same. Lessor shall
use reasonable efforts to re-let the Premises. Provided this lease has
not been terminated by Lessor, upon each such re-letting, all rentals
actually received by Lessor from such re-letting applicable to the
unexpired term of this lease shall be applied as follows: First, to the
payment of any costs and expenses of such re-letting, including costs
incurred by Lessor for brokerage fees, legal fees and alterations and
repairs to the Premises; Second, to the payment of any indebtedness other
than rent due hereunder from Lessee; Third, to payment of any unpaid
portion of rent then due. On the scheduled expiration date of this lease,
Lessor shall pay the residue, if any, to Lessee. No such re-entry or
taking of possession of the Premises by Lessor shall be construed or shall
operate as an election by Lessor to terminate this lease unless written
notice of termination is given by Lessor to Lessee, or this lease is
terminated by an order or decree of a court of competent jurisdiction.
(b) In addition to all remedies specified in this lease, Lessor
shall have all remedies available pursuant to applicable law. However, Lessor
hereby subordinates any statutory or other lien it may have in Lessee's
property located in the Premises for nonpayment of rent to any and all
equipment leases, liens and security interests entered into or granted from
time to time by Lessee with respect to such property, and Lessor agrees to
execute from time to time upon request instruments confirming such
subordination.
(c) No re-entry, taking possession of, or repair of the Premises by
Lessor, termination of this lease or any other action taken by Lessor as a
result of any default of Lessee shall relieve Lessee of any of its liabilities
or obligations hereunder which arose prior to or by reason of such termination,
whether or not the Premises are re-let.
(d) All remedies of Lessor shall be cumulative. Election by Lessor
to exercise any remedy shall not prevent or be deemed a waiver of Lessor's
right to thereafter exercise any other remedy.
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(e) Lessee agrees to pay upon demand all reasonable costs, fees and
expenses (including, without limitation, court costs and reasonable attorney's
fees) incurred by Lessor in enforcing this lease. Lessor also agrees to pay
upon demand all reasonable costs, fees and expenses (including, without
limitation, court costs and reasonable attorneys' fees) incurred by Lessee in
enforcing this lease.
20. Holding Over. If Lessee remains in possession of the Premises after
the expiration or termination of the term of this lease without Lessor's
written consent, such possession shall, at Lessor's option, (a) be a tenancy at
sufferance only, during which tenancy at sufferance monthly rent shall be due
and payable at 150% of the monthly rent due for the last month of the term, or
(b) result in an extension of this lease on a month-to-month basis, upon the
terms and conditions applicable to the last lease year of the preceding term
except monthly rent, which shall be at 150% of the rent payable during the last
month of the term.
21. Surrender of Premises. Lessee shall surrender the Premises at the
expiration or sooner termination of the lease term, broom-cleaned, with all
rubbish removed, free of subtenancies, and in good condition and repair (except
for any items which this lease requires Lessor to repair), reasonable wear and
tear excepted. Lessee shall deliver all keys to Lessor or Lessor's agent.
22. Information Concerning Lessee. Lessee shall furnish within 15 days
after request from Lessor such current information concerning the financial
condition of Lessee as Lessor may reasonably require. Such financial
information shall include (but is not necessarily limited to) a financial
statement dated not more than thirteen (13) months prior to Lessor's request.
Such financial statement shall be prepared in accordance with generally
accepted accounting principles and certified by a certified public accountant.
A general partner or officer of Lessee shall furnish a certification to Lessor
to the effect that there either has or has not been any material adverse change
in the financial condition of Lessee since the date of the financial statement
submitted, and if such certification states that there has been a material
adverse change, furnishing such details concerning same as Lessor may
reasonably request. Lessor shall not disclose the financial information to any
party except to a prospective purchaser or mortgagee of the Premises upon
request.
23. Authority of Lessee and Lessor. Each party shall furnish to the
other within fifteen (15) days after request such corporate resolutions,
certificates of incumbency, partnership resolutions, partnership agreements,
legal opinions or other information as the requesting party may reasonably
request in order to confirm that the execution and delivery of this lease has
been duly authorized by the other party and that the person(s) executing this
lease on behalf of such party were duly authorized to do so. All such corporate
or partnership resolu-
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tions, certificates or agreements shall be certified as being duly adopted
and/or in full force and effect, without amendment, by an appropriate officer
or partner of the other party. If the Premises are sold or if the beneficial
interests in Lessor are transferred, Lessor shall upon request furnish Lessee
with information as to the beneficial owners of Lessor.
24. Security Deposit. [Intentionally Omitted]
25. Rules and Regulations. [Intentionally Omitted]
26. Subordination. See Paragraph 15 of Rider.
27. Estoppel Statement. Within twenty (20) days after request therefor by
Lessor, Lessee agrees to deliver in recordable form a certificate prepared by
Lessor to any proposed mortgagee or purchaser of the Premises certifying (if
such is the case) that this lease is in full force and effect, that to Lessee's
knowledge there are no defenses or offsets thereto, or stating those claimed by
the other party, and such other facts related to this lease or the Premises as
Lessor may reasonably request.
28. Notices. Any notices required pursuant to this lease shall be in
writing. Addresses to which notices shall be sent are as follows:
TO LESSEE: The Computer Company
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: President
TO LESSOR: Xxxx Properties-Data
Limited Partnership
c/x Xxxx Development Company
X.X. Xxx 00000
0000 Xxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: President
Either party may at any time designate by written notice to the other a
change of address for notices. All notices, demands and requests which are
addressed as provided above and are (i) deposited in the United States mail,
registered or certified, postage prepaid, return receipt requested, or (ii)
accepted for overnight delivery by Federal Express, Xxxxx, Purolator, Airborne
or Express Mail, delivery charges prepaid or with delivery not conditioned upon
payment of charges, shall be deemed to have been given for all purposes
hereunder at the time such notice, demand or request shall be deposited in the
United States mail or accepted for delivery by the applicable overnight
delivery service.
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29. Past Due Rents. Lessee recognizes and acknowledges that if rent
payments are not received when due, Lessor will suffer damages and additional
expense thereby and Lessee therefore agrees that a late charge equal to five
percent (5%) of the late rent may be assessed by Lessor as additional rental if
Lessor has not received any monthly installment of annual rent within ten (10)
business days after its due date. If any check given in payment of rent is not
honored when due, Lessor may require that subsequent rent payments be made by
certified or cashier's check.
30. Building Name. See Paragraph 14 of Rider.
31. Right to Relocate. [Intentionally Omitted]
32. Rent Taxes. See Paragraph 7 of Rider.
33. Area of the Premises. See Paragraph 6 of Rider.
34. Taxes Attributable to Lessee's Improvements. See Paragraph 7 of Rider.
35. Tax Stop. [Intentionally Omitted]
36. Definition of Lease Year. The first lease year is the period
beginning on the Commencement Date and ending one (1) year after the last day
of the month in which the Commencement Date occurs. The second lease year shall
begin on the day after the end of the first lease year, and shall end one (1)
year after the end of the first lease year. The third and subsequent lease
years shall begin and end on the appropriate anniversary dates of the beginning
and ending dates of the second lease year.
37. Successor and Assigns. This lease shall bind and inure to the benefit
of the successors, assigns, heirs, executors, administrators and legal
representatives of the parties hereto. This provision shall not give Lessee by
implication any right to assign its rights or interest pursuant to this lease.
The provisions of paragraph 13 above govern Lessee's right to assign and sublet.
38. Relationship of Lessor and Lessee. It is expressly understood and
agreed that Lessor shall not be construed as or held to be a partner, joint
venturer or associate of Lessee, it being expressly understood that the
relationship between the parties hereto is and shall at all times remain that
of landlord and tenant.
39. Limitation of Lessor's Obligation. The obligations of Lessor
hereunder shall be binding only upon its interest in the Project and its other
assets and not upon any partner personally. Lessee agrees to look solely to the
interest of Lessor in the Premises, to Lessor's other assets and to any
separate guaranty of Lessor's obligations, for the satisfaction of any judgment
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obtained by Lessee as a result of a breach by Lessor of this lease.
40. Performance by Lessor and Lessee. If, after the Premises are
"substantially completed" (as defined in the Rider), either party fails to
perform any of its obligations hereunder after prior written notice from the
other party and reasonable opportunity to remedy the nonperformance, the other
party may, at its option (but shall be under no obligation to do so), perform
the obligation or begin curative action to perform such obligation. Any amounts
advanced in so performing or taking curative action to perform such obligations
shall bear interest at the rate of twelve percent (12%) (or, if lower, the
highest lawful rate) from the date expended until repaid, shall be due and
payable on demand, and failure to pay on demand shall constitute an
independent event of default hereunder. Payment or performance by the other
party of the obligations of the nonperforming party shall not waive or cure any
breach occasioned by the nonperforming party's failure or refusal to pay or
perform same. Lessee may also offset any sum due to it on account of the
foregoing against rent payable hereunder.
41. Waiver. Delay in asserting or prosecuting any right, claim or cause
of action accruing hereunder is not and shall not be deemed to be a waiver of,
and shall not prejudice the same, or any other right, claim or cause of action
accruing hereunder at any time. Waiver of any right, claim or cause of action
at any time shall not prejudice any other right, claim or cause of action which
either party may have or which shall thereafter accrue, and shall not waive
either party's right to assert any other right, claim or cause of action.
Acceptance by Lessor of rent from Lessee during the existence of any default
shall not constitute a waiver of such default, or a waiver of the right of
Lessor to insist upon Lessee's strict compliance with the terms of this lease.
42. Paragraph Headings. The paragraph headings of this lease are used for
convenience only, and are in no way to be construed as a part of this lease or
as a limitation on the scope of the particular provision to which they refer.
43. Invalidity. If any provision of this lease shall be held to be
invalid, whether generally or as to specific facts or circumstances, the same
shall not affect in any respect whatsoever the validity of the remainder of
this lease, which shall continue in full force and effect. Any provision held
invalid as to any particular facts and circumstances shall remain in full force
and effect as to all other facts and circumstances.
44. Governing Law. This lease and the rights of the parties hereunder
shall be interpreted in accordance with the laws of the state in which the
Project is located.
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45. Entire Agreement. This lease, together with the attached Exhibits and
Rider referred to herein and specified below, contains the entire agreement of
the parties related to this transaction, supersedes all prior negotiations and
agreements and represents their final and complete understanding. This lease
may not be modified orally, through course of performance or in any manner
other than by agreement in writing, signed by the parties hereto.
46. Exhibits and Rider. The Exhibit(s) designated "A", "B", "C" and "D",
which are attached hereto and have been signed or initialed by Lessee and
Lessor are a part of this lease, and are incorporated herein as if set forth in
full.
Exhibit "A" - Site Plan
Exhibit "B" - Outline Specifications
Exhibit "C" - Assumption Agreement
Exhibit "D" - Reconfigured Parking Area
IN WITNESS WHEREOF, this lease has been duly executed by the parties
hereto as of the date and year first above written.
LESSOR: XXXX PROPERTIES-DATA LIMITED
PARTNERSHIP
By: XXXX DEVELOPMENT COMPANY,
General Partner
By: /s/ Dee Heel
-------------------------
Title: V.P.
-----------------------
LESSEE: THE COMPUTER COMPANY
By: /s/
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Title: President
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