Contract
THIS LEASE, made this 2nd day of February, 2010, by
and between XXXXXXX-AB5, LLC, hereinafter called "Landlord," and STEELCLOUD,
INC., hereinafter called
"Tenant."
WITNESSETH, that in
consideration of the rental hereinafter agreed upon and the performance of all
the conditions and covenants hereinafter set forth on the part of the Tenant to
be performed, the Landlord does hereby lease unto the said Tenant, and the latter does
lease from the former the following premises (hereinafter sometimes called the
"Premises"):
Being all
those premises outlined in red on the Lease Plan attached hereto as Exhibit B,
said premises being approximately 3,461 rentable square feet. The computation of
the rentable square foot area of the premises to be made as herein set forth
shall be made by measuring from the primary inside face of the perimeter glass
to the centerline of the interior demising partitions the total area of which is
multiplied by 1.12 which represents the building core factor. The Tenant space,
being located within the building (hereinafter sometimes called the "Building")
known as "Xxxxxxx @ Xxxxxxxx," situate on a parcel of land (hereinafter
sometimes called the "Property"), and situate in 00000 Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxx 00000 which property is more fully described on Exhibit A
hereto.
for the
term of one (1) year, beginning on the later to occur of the
following: (i) February 15, 2010; or (ii) the date of substantial
completion of Landlord's Work, as set forth in Exhibit B, attached hereto; or
(iii) the date when Tenant occupies the Premises. Landlord agrees
that it will, at its sole cost and expense, as soon as reasonably possible after
the execution of this Lease, commence and pursue to completion the Landlord's
Work set forth on Exhibit B. The Premises shall be deemed to be
substantially completed on the date when Landlord or its architect notifies
Tenant in writing that the Premises are substantially complete, with the
exception of minor items which do not interfere with Tenant's installations and
work in order to outfit the Premises for Tenant's use.
This Lease is made subject to the
following additional terms, covenants and conditions:
1.
Rental.
(a) As
used herein, the "First Rental Year" shall mean the period from the commencement
of the Lease term to the end of the twelfth (12th) full calendar month
thereafter; subsequent Lease years shall commence on the first (1st) day of the
next month of the Lease term and on each anniversary thereafter. The
rental rate shall be as follows:
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Term:
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Annual
Rate:
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Monthly
Rate:
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Per
Sq. Ft.:
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Year
1
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$ | 77,872.50 | $ | 6,489.38 | $ | 22.50 | ||||||
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Tenant
covenants and agrees to pay all rentals reserved hereunder to Landlord, without
notice or demand, in advance, on the first (1st) day of each month during the
term of this Lease, without setoff or deduction. The rental for any fractional
monthly periods at the beginning or at the end of each Lease year shall be
prorated on a per diem basis and shall be payable on the date upon which the
Lease term commences, and on the first (1st) day of the last partial month of
the Lease term, respectively. Tenant covenants and agrees that it will not
prepay any rent more than one (1) month in advance without Landlord's prior
written consent.
(b) All
rentals shall be paid to XXXXXXX PROPERTIES, LLCc/x
Xxxxxxx 0000 Xxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, or at such other place
or to such appointee of the Landlord as the Landlord may from time to time
designate in writing.
(c) Tenant
covenants and agrees to pay the rental herein reserved and each installment
thereof promptly when and as due, without setoff or deduction
whatsoever.
2. Use.
(a) Tenant
covenants and agrees to use and occupy the Premises solely for the following
purposes: GENERAL OFFICE
USE Tenant agrees to comply with all
applicable zoning and other laws and regulations, and to provide and install at
its own expense any additional equipment or alterations required to comply with
all such laws and regulations as required from time to time. Tenant
further agrees not to make, or cause or permit to be made, any use of the
Premises which shall constitute a nuisance or shall interfere with the rights of
other tenants in the Building to quietly enjoy, use and occupy the Premises
leased by them and the common areas of the Building. Tenant will not
permit, allow or cause any public or private auction sales or sheriffs' or
constables' sales to be conducted on or from the Premises.
(b) As
used herein the “Parking Ratio” shall be equal to four (4) parking spaces for
each one thousand (1,000) square feet of total rentable area within the
premises. Tenant agrees that at no time will the number of parking
spaces occupied by Tenant’s agents, employees and invitees exceed the Parking
Ratio.
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3. Service
and Utilities.
(a) Provided
that Tenant is not in default hereunder, Landlord agrees to furnish to the
Premises, as part of Operating Costs as further defined in Section 6,
electricity for normal desktop office equipment and normal copying equipment,
and lighting, heating, ventilation and air conditioning ("HVAC") as required in
Landlord's judgment for the comfortable use and occupancy of the
Premises. Subject to the limitations set forth below, such utilities
shall be made available without additional charge between the hours of 8:00 a.m.
to 6:00 p.m., Monday through Friday, and 8:00 a.m. to 12:00 noon on Saturday,
except for legal holidays. If Tenant desires electricity or HVAC at
any other time, Landlord shall provide and shall xxxx Tenant for the same at
Landlord's standard chargestherefore (as established by Landlord from time to
time, but which shall not exceed the Landlord’s utility costs reasonably
determined,) and Tenant shall pay Landlord's charges therefor at the same time
and in the same manner as is provided for the payment of minimum rental
hereunder. Landlord shall also maintain and keep lighted the common
stairs, common entries and restrooms in the Building. Landlord shall
not be in default hereunder or be liable for any damages directly or indirectly
resulting from, nor shall the rent be abated by reason of (i) the installation,
use or interruption of use of any equipment in connection with the furnishing of
any of the services to be furnished by Landlord as set forth in this Lease; (ii)
failure to furnish or delay in furnishing any such services where such failure
or delay is caused by accident or any condition or event beyond the reasonable
control of Landlord, or by the making of necessary repairs or improvements to
the Premises of the Building; or (iii) the limitation, curtailment or rationing
of, or restrictions on, use of water, electricity, gas or any other form of
energy serving the Premises or Building. Landlord shall not be liable
under any circumstances for a loss of or injury to property or business,
however, occurring, through or in connection with or incidental to failure to
furnish any such services. Tenant shall not use heat-generating
machines or equipment in the Premises which affect the temperature otherwise
maintained by the HVAC system without the prior written consent of Landlord, and
if such equipment is used, Landlord reserves the right to install supplementary
air conditioning units in the Premises and the cost thereof, including the cost
of installation, operation and maintenance thereof, shall be paid by Tenant to
Landlord upon demand by Landlord.
(b) Tenant
shall not, without the written consent of Landlord, use any apparatus or device
in the Premises, including, without limitation, electronic data processing
machines, punch card machines or machines using in excess of 120 volts, which
consumes more electricity than is usually furnished or supplied for the use of
Premises as general office space, as determined by Landlord. Tenant
shall not connect any apparatus with electric current except through existing
electrical outlets in the Premises. Tenant shall not consume water or
electric current in excess of that usually furnished or supplied for the use of
Premises as general office space (as determined by Landlord) without first
procuring the written consent of Landlord, which Landlord may refuse, and in the
event of consent, Landlord may have installed a water meter or electrical
current meter in the Premises to measure the amount of water or electric current
consumed. The cost of any such meter and of its installation,
maintenance and repair shall be paid for by Tenant and Tenant agrees to pay to
Landlord promptly upon demand for all such water and electric current consumed
as shown by said meters, at the rates charged for such services by the local
public utility, plus any additional expense incurred in keeping account of the
water and electric current so consumed. If a separate meter is not
installed, the excess cost for such water and electric current shall be
reestablished by Landlord from time to time as its standard charges
thereof.
(c) Nothing
contained in this Section shall restrict Landlord's right to require at any time
separate metering of utilities furnished to the Premises. In the
event utilities are separately metered, Tenant shall pay promptly upon demand
for all utilities consumed at utility rates charged by the local public utility,
plus any additional expense incurred by Landlord in keeping account of the
utilities so consumed. Tenant shall be responsible for the
maintenance and repair of any such meters at its sole cost.
(d) Landlord
shall furnish elevator service, lighting replacement for building standard
lights, restroom supplies, exterior window washing and janitorial services in a
manner than such services are customarily furnished to comparable office
buildings in the area.
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(e) Specialty
HVAC Maintenance: Tenant shall be required to obtain maintenance contracts for
any and all of Tenant's HVAC equipment and other separate climate control
equipment for any computer or similar equipment, designed specifically for
Tenant (e.g. for a computer or telephone room), whether the same is existing as
of the commencement date of this Lease or was installed at a later date, by
Landlord or by Tenant. The costs incurred by Tenant to maintain such
specialty HVAC equipment shall be borne by Tenant. Should Tenant
desire to have Landlord maintain such specialty HVAC equipment, then the costs
incurred by Landlord to maintain such equipment shall be billed to Tenant as
additional rent, and shall be payable by Tenant within fifteen (15) days
following receipt of the billing statement.
4.
Compliance With Laws.
Tenant
covenants and agrees that it will, at its own expense, observe, comply with and
execute all laws, orders, rules, requirements, and regulations of any and all
governmental departments, bodies, bureaus, agencies and officers, and all rules,
directions, requirements, and recommendations of the local board of fire
underwriters and the fire insurance rating organizations having jurisdiction
over the area in which the Premises are situated, or other bodies or agencies
now or hereafter exercising similar functions in the area in which the Premises
are situated, in any way pertaining to the Premises or the use and occupancy
thereof. In the event Tenant shall fail or neglect to comply with any
of the aforesaid laws, orders, rules, requirements, or recommendations, Landlord
or its agents may enter the Premises and take all such actions and do all such
work in or to the Premises as may be necessary in order to cause compliance with
such laws, orders, rules, requirements or recommendations, and Tenant covenants
and agrees to reimburse Landlord promptly upon demand for the expense incurred
by Landlord in taking such action and performing such work.
5. Assignment
and Subletting.
(a) Tenant
covenants and agrees not to assign this Lease, in whole or part, nor sublet the
Premises, or any part or portion thereof, nor grant any license or concession
for all or any part thereof, without the prior written consent of the Landlord
in each instance first had and obtained, which consent shall not be unreasonably
withheld. If such assignment or subletting is permitted, Tenant shall
not be relieved from any liability whatsoever under this Lease. In
the event that the amount of the rent or other consideration to be paid to the
Tenant by any assignee or sublessee is greater than the rent required to be paid
by the Tenant to the Landlord pursuant to this Lease, Tenant shall pay to
Landlord, fifty percent (50%) ofany such excess as is received by Tenant from
such assignee or sublessee. Any consent by Landlord to an assignment
or subletting of this Lease shall not constitute a waiver of the necessity of
such consent as to any subsequent assignment or subletting. An
assignment for the benefit of Tenant's creditors or otherwise by operation of
law shall not be effective to transfer or assign Tenant's interest under this
Lease unless Landlord shall have first consented thereto in
writing.
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(b) In
the event this Lease contains a renewal option exercisable by Tenant, Landlord's
consent to an assignment or sublease of the Premises or any portion thereof
during the original Lease term shall be deemed to be conditioned upon the
agreement of Tenant and such assignee or sublessee that such renewal right or
option shall terminate and be of no further force or effect unless Landlord's
consent to such assignment or sublease expressly provides
otherwise. Consequently, unless so provided otherwise, any assignment
or sublease during the original Lease term shall automatically constitute a
termination of the right of Tenant or such assignee or sublessee to exercise any
renewal option contained hereto.
(c) In
the event Tenant desires to assign this Lease or to sublease all or any
substantial portion of the Premises, Landlord shall have the right and option to
terminate this Lease, which right or option shall be exercisable by written
notice from Landlord to Tenant within thirty (30) days from the date Tenant
gives Landlord written notice of its desire to assign or sublease.
6. Operating
Costs.
(a) "Operating
Costs" are the costs of managing, operating, maintaining, repairing,
redecorating, refurbishing and insuring the Building and all common areas and
facilities within the Property (including, but not limited to, elevators,
stairwells, loading areas, parking areas, pavements and walkways, landscaping,
gardening, storm drainage, and other utility systems); the cost of utilities for
such common areas and facilities; fire protection and security services, if any;
traffic control equipment; repairs; parking lot striping; lighting; sanitary
control; removal of snow, trash, rubbish, garbage and other refuse; depreciation
on or rentals of machinery and equipment used in such maintenance; the cost of
personnel to implement such services; all insurance of whatsoever nature kept,
or caused to be kept, by Landlord out of or in connection with the ownership of
the Building and common areas, including, but not limited to, insurance insuring
the same against loss or damage by, or abatement of rental income resulting
from, fire and other such hazards, casualties, and contingencies, and liability
and indemnity insurance; plus Landlord's actual administrative and overhead
costs in connection therewith. Such costs shall not include the cost
of any capital improvements to the Building as determined under generally
accepted accounting principles or work which Landlord performs specifically for
or at the expense of any tenant of the Building. Operating Costs shall also
include Landlord’s management fee which shall not exceed four percent (4%) of
the gross rental receipts for the Building. "Operating Costs" shall also include
all taxes (as hereinafter defined) assessed against the Property and Building,
whether as a result of an increase in the tax rate, or the levy, assessment or
imposition of any tax on real estate as such not now levied, assessed or
imposed. The foregoing shall apply to increases in real estate taxes
assessed against the land or Building generally, and not resulting from
improvements placed thereon by Tenant. In the event of any increases
in real estate taxes resulting from improvements, alterations or additions made
by Tenant, Tenant shall pay the entire amount of said
increase. "Taxes" as used herein shall include, but not by way of
limitation, all paving taxes, special paving taxes, Metropolitan District
Charges, and any and all other benefits or assessments which may be levied on
the Property or the Building, but shall not include any income tax on the income
or rent payable hereunder.
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(b) If,
during any annual period of the term, Operating Costs per rentable square foot
in the Building exceed those costs incurred during the calendar year 2009,
Tenant shall pay Landlord, as additional rent, an amount equal to the product
obtained by multiplying the number of rentable square feet comprising the
Premises by such excess Operating Costs per rentable square foot.
(c) Landlord
shall notify Tenant from time to time of the amount which Landlord estimates
will be the amount payable by Tenant in accordance with paragraph (b), above,
and Tenant shall pay such amounts to Landlord in equal monthly installments, in
advance, on the first day of each month, simultaneously with payments of the
rent reserved pursuant to Section 1 hereof. Within a reasonable
period of time following the end of each annual period of the term, Landlord
shall submit to Tenant a statement showing the actual amounts incurred by
Landlord as set forth in paragraph (b), the amount theretofore paid by Tenant,
and the amount of the resulting balance due thereon, or overpayment thereof, as
the case may be. In the event any balance may be due by Tenant,
Tenant shall pay said balance within five (5) days from the date of such
statement. In the event Tenant has made any overpayment, such
overpayment shall be credited by Landlord against the next installment or
installments of rent which are due and payable hereunder, or if the term of this
Lease has expired, such overpayment shall be refunded by Landlord to Tenant,
without interest, within five (5) days after the date of such
statement. Each such statement submitted by Landlord shall be final
and conclusive between the parties hereto as to the matters therein set forth,
if no objection is raised with respect thereto within fifteen (15) days after
submission of each such statement.
7. Increase
in Landlord's Insurance Rates.
Tenant
will not do, or suffer to be done, anything in or about the Premises, or keep or
suffer to be kept, anything in or about the Premises which will contravene or
affect any policy of insurance against loss by fire or other hazards, including,
but not limited to, public liability, now existing or which the Landlord may
hereafter place thereon, or which will prevent the Landlord from procuring such
policies in companies acceptable to Landlord at standard
rates. Tenant will, at Tenant's sole expense, take all such actions
and make any installations or alterations as may be necessary to obtain the
greatest possible reduction in the insurance rates for the Premises and the
Building caused by the occupancy of Tenant, the nature of the business carried
on by Tenant in the Premises, or otherwise resulting from any act of Tenant, its
agents, servants, employees or customers, or anything done or suffered to be
done by Tenant, its agents, servants, employees or customers, or anything done
or suffered to be done by Tenants, its agents, servants, employees or
customers.
8. Insurance
- Indemnity.
(a) Tenant
covenants and agrees that from and after the date of delivery of the Premises
from Landlord to Tenant, Tenant will carry and maintain, at its sole cost and
expense and in the amounts specified and in the form hereinafter provided, the
following types of insurance:
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(i) Public Liability and
Property Damage. General Public Liability Insurance covering
the Premises and Tenant's use thereof against claims for personal injury or
death and property damage occurring upon, in or about the Premises, such
insurance to afford protection to the limit of not less than $2,000,000 arising
out of any one occurrence, and against property damage to afford protection to
the limit of not less than $2,000,000; or such insurance may be for a combined
single limit of $2,000,000 per occurrence. The insurance coverage
required under this Section 8(a)(i) shall, in addition, extend to any liability
of Tenant arising out of Tenant's indemnities hereinafter provided, as well as
Independent Contractors' Liability, Products/Completed Operations Liability,
Personal Injury Liability and Contractual Liability.
(ii) Boilers. If
Tenant's Premises shall contain a boiler or other pressure vessel, Tenant shall
carry Boiler and Machinery Insurance with a direct damage limit not less than
the full value of the Building. Such insurance shall be written on a
"repair and replacement" (i.e., replacement cost) basis.
(iii) Tenant Improvements and
Property. Insurance covering all
leasehold improvements and other improvements installed by Tenant upon the
Premises, trade fixtures and personal property from time to time in, on or upon
the Premises and any alterations, improvements, additions or changes made by
Tenant thereto in an amount not less than one hundred percent (100%) of their
full replacement cost from time to time during the Lease term, providing
protection against perils included within the standard Virginia form of fire and
extended coverage insurance policy, together with insurance against sprinkler
leakage or other sprinkler damage, vandalism and malicious
mischief. Any policy proceeds from such insurance, so long as this
Lease shall remain in effect, shall be held in trust by Tenant's insurance
company first for the repair, reconstruction, restoration or replacement of the
property damaged or destroyed.
(iv) Plate Glass. Plate glass insurance
covering all plate glass in the Premises. Tenant shall be and remain
liable for the repair and restoration of all such plate glass.
(v) Workers’
Compensation insurance including Employer’s
Liability
insurance. Such Workers’ Compensation insurance shall be for the
statutory benefits which may, from time to time throughout the term of this
Lease, become payable in the jurisdiction in which the Premises are
located. Such Employer’s Liability insurance shall be in amounts not
less than One Hundred Thousand Dollars ($100,000) for each accident, Five
Hundred Thousand Dollars ($500,000) as a policy limit for disease and One
Hundred Thousand Dollars ($100,000) per employee for disease. Such
Workers’ Compensation insurance will include a Waiver of Subrogation in favor of
Landlord.
Tenant further covenants and agrees to
carry and maintain, at all times during the term of this Lease, the aforegoing
types of insurance (and any other types of insurance) in amounts at least equal
to the minimum amounts of such insurance coverages commonly required of Tenants
in comparable office buildings in the area.
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(b) All
policies of insurance to be provided by Tenant shall be issued in form
acceptable to Landlord by insurance companies with general policyholder's rating
of not less than A and a financial rating of AAA as rated in the most current
available "Best's" Insurance Reports, and qualified to do business in
Virginia. Each such policy shall be issued in the names of Landlord
and Tenant. Said policies shall be for the mutual and joint benefit
and protection of each of said parties and executed copies of each such policy
of insurance or a certificate thereof shall be delivered to Landlord within ten
(10) days after delivery of possession of the Premises to Tenant and thereafter
at least fifteen (15) days prior to the expiration of each such
policy. As often as any such policy shall expire or terminate,
renewal or additional policies shall be procured and maintained by Tenant in
like manner and to like extent. All such policies of insurance shall
contain a provision that the company writing said policy will give to Landlord
at least thirty (30) days' notice in writing in advance of any cancellations, or
lapse, or the effective date of any reduction in the amounts of
insurance. In the event Tenant shall fail to promptly furnish any
insurance herein required, Landlord may effect the same for a period not
exceeding one (1) year and Tenant shall promptly reimburse Landlord upon demand,
as additional rent, the premium so paid by Landlord. If, upon
Tenant's failure, rather than purchase separate insurance coverage, Landlord
chooses to include Tenant's coverage under Landlord's insurance policies, then
Tenant shall promptly reimburse Landlord upon demand, as additional rent, the
greater of the increase in Landlord's premium resulting therefrom or One
Thousand Dollars ($1,000.00). All such public liability, property
damage and other casualty policies shall be written as primary policies which do
not contribute to and are not in excess of coverage which Landlord may
carry. All such public liability and property damage policies shall
contain a provision that Landlord shall nevertheless be entitled to recover
under said policies for any loss occasioned to it, its servants, agents and
employees by reason of negligence of Tenant or any other named
assured. Any insurance provided for may be affected by a policy or
policies of blanket insurance, covering additional items or locations; provided,
however that (i) Landlord shall be named as an additional insured thereunder as
its interests may appear; (ii) the coverage afforded Landlord will not be
reduced or diminished by reason of the use of such blanket policy of insurance;
(iii) any such policy or policies (except any covering the risks referred to in
paragraph (a)(i) above), shall specify therein (or Tenant shall furnish Landlord
with a written statement from the insurers under such policy specifying) the
amount of the total insurance allocated to the "Tenant Improvements and
Property" more specifically detailed in paragraph (iii), above; and (iv) the
requirements set forth herein are otherwise satisfied. Any insurance
policies herein required to be procured by Tenants shall contain an express
waiver of any right of subrogation by the insurance company against the
Landlord, and all other tenants or occupants of space in the
Building.
(c) Tenant
shall, and does hereby, indemnify and hold harmless Landlord and any other
parties in interest set forth in paragraph (b), above, from and against any and
all liabilities, fines, claims, damages and actions, costs and expenses of any
kind or nature (including attorneys' fees) and of anyone whatsoever (i) relating
to or arising from the use and occupancy of the Premises; (ii) due to or arising
out of any mechanic's lien filed against the Premises, the Building, or any part
thereof, for labor performed or for materials furnished or claimed to be
furnished to Tenant, or (iii) due to or arising out of any breach, violation or
nonperformance of any covenant, condition or agreement in this Lease set forth
and contained on the part of Tenant to be fulfilled, kept, observed or
performed, unless such damage or injury shall be occasioned by the gross
negligence or willful act or omission of the Landlord, in which event, Landlord
shall indemnify and hold harmless Tenant to the extent of such negligence or
willful act or omission. Notwithstanding the foregoing, Tenant shall
at all times remain liable for, and indemnify and hold harmless Landlord as
aforesaid against, any damage or injury arising from perils against which Tenant
is required by this Lease to insure, regardless of the negligence or willful
acts or omissions of others.
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9.
Alterations.
Tenant
shall not make any alterations to the Premises, or any part thereof, without
prior written consent of Landlord in each instance first had and
obtained. If Tenant shall desire to make such alterations, plans for
the same shall first be submitted to and approved by Landlord, and all work and
installations shall be performed by Tenant at its own expense in accordance with
approved plans. Tenant agrees that all such work shall be done in a
good and workmanlike manner, that the structural integrity of the Building shall
not be impaired, and that no liens shall attach to the Premises by reason
thereof. Tenant agrees to obtain, at Tenant's expense, all permits
required for such alterations.
10.
Ownership of Alterations.
Unless
Landlord shall elect that all or part of any alteration made by Tenant to the
Premises (including any alteration consented to by Landlord pursuant to
paragraph 9 hereof) shall remain on the Premises after the termination of this
Lease, the Premises shall be restored to their original condition by Tenant
before the expiration of this Lease at Tenant's sole expense. Upon
such election by Landlord, any such alterations, improvements, betterments or
mechanical equipment, including but not limited to, heating and air conditioning
systems, shall become the property of Landlord as soon as they are affixed to
the Premises, and all right, title and interest thereof of Tenant shall
immediately cease, unless otherwise agreed to in writing by
Landlord. Tenant shall promptly pay any franchise, minor privilege or
other tax or assessment resulting directly or indirectly from any alterations or
improvements made by Tenant to the Premises. Tenant shall repair
promptly, at its own expense, any damage to the Premises or Building caused by
bringing into the Premises any property for Tenant's use, or by the installation
of removal of such property, regardless of fault or by whom such damage shall be
caused.
11.
Repairs and Maintenance.
(a) Except
as expressly provided in Exhibit B, Landlord shall be under no liability, nor
have any obligation to do any work or make any repairs in or to the Premises,
and any work which may be necessary to outfit the Premises for Tenant's
occupancy or for the operation of Tenant's business therein is the sole
responsibility of Tenant and shall be performed by Tenant at its own cost and
expense. Tenant acknowledges that it has fully inspected the Premises
prior to the execution of this Lease, and Tenant further acknowledges that
Landlord has made no warranties or representations with respect to the condition
or state of repairs of the Premises.
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(b) Tenant,
at Tenant's sole expense, shall except for services furnished by Landlord
pursuant to Section 3 hereof, maintain the Premises in good order, condition,
and repair, including the interior surfaces of the ceilings, walls and floors,
all doors, all interior windows, all plumbing, pipes and fixtures, electrical
wiring, switches and fixtures, building standard furnishings and special items
and equipment installed by or at the expense of Tenant.
(c) Tenant
shall be responsible for all repairs and alterations in and to the Premises and
Building and the facilities and systems thereof, the need for which arises out
of (i) Tenant's use or occupancy of the Premises; (ii) the installation,
removal, use or operation of Tenant's property in the Premises; (iii) the moving
of Tenant's property into or out of the Building; or (iv) any act, omission,
misuse or negligence of Tenants, its agents, contractors, employees or
invitees.
(d) If
Tenant fails to maintain the Premises in good order, condition and repair,
Landlord may give Tenant notice to do such acts as are reasonably required to so
maintain the Premises. If Tenant fails to promptly commence such work
and diligently prosecute it to completion, then Landlord shall have the right to
do such acts and expend such funds at the expense of Tenant as are reasonably
required to perform such work. Any amount so expended by Landlord shall be paid
by Tenant promptly after demand, with interest from the date of such work, at a
rate equal to four percentage points (4%) above the prime commercial rate of
interest then being charged by Bank of America. Landlord shall have
no liability to Tenant for any damage, inconvenience, or interference with the
use of the Premises by Tenant as a result of performing any such
work.
(e) Tenant
shall not place a load upon any floor of the Premises which exceeds the load per
square foot which such floor was designed to carry, as determined by Landlord's
structural engineer. Landlord reserves the right to consult with its
structural engineer if necessary, in Landlord's opinion, to resolve any
questions concerning this matter, in which event the determination of the
engineer shall be conclusive and the cost of any such determination shall be
paid for by Tenant upon demand. Tenant shall not install business
machines or mechanical equipment which cause noise or vibration to such a degree
as to be objectionable to Landlord or other Building tenants.
(f)
Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant nor shall Tenant's obligations under this
Lease be reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease or by any other tenant's lease or required by law to make in or to
any portion of the Building or the Premises. Landlord shall,
nevertheless, use reasonable efforts to minimize any interference with Tenant's
business in the Premises.
(g) Tenant
shall give Landlord prompt notice of any damage to or defective condition in any
part or appurtenance of the Building's mechanical, electrical, plumbing, HVAC or
other systems serving, located in, or passing through the
Premises.
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(h) Upon
the expiration or earlier termination of this Lease, Tenant shall return the
Premises to Landlord clean and in the same condition as on the date Tenant took
possession, except for normal wear and tear. Any damage to the
Premises, including any structural damage, resulting from Tenant's use or from
the removal of Tenant's fixtures, furnishings and equipment shall be repaired by
Tenant at Tenant's expense. Landlord shall xxxx Tenant, as promptly
as is practicable, for the costs of any cleanup and/or repairs to the Premises
necessitated by Tenant's use and occupancy thereof (normal wear and tear
excepted) and such costs shall constitute additional rental due and payable
hereunder notwithstanding any expiration or termination of this
Lease.
(i) Landlord shall,as part of Operating
Costs, keep the Property and the Building, and all machinery,
equipment, fixtures and systems of every kind attached to, or used in connection
with the operation of, the Building, including all electrical, heating,
mechanical, sanitary, sprinkler, utility, power, plumbing, cleaning,
refrigeration, ventilating, air-conditioning and elevator systems and equipment
(excluding, however, lines, improvements, systems and machinery for water, gas,
steam, electricity and data and communications services owned and maintained by
any public utility company, governmental agency or body or other public or
private service provider) in good order and repair. In connection
with the foregoing, Landlord shall make all repairs and replacements necessary
to comply with its obligations set forth in the immediately preceding sentence
unless otherwise expressly set forth in this Lease.
12. Default.
(a) Any
of the following events shall constitute a default by Tenant:
(i) If the rent (basic or
additional) shall be in arrears by more than five (5) days following written
notice from Landlord, in whole or in part; or
(ii) If Tenant shall have
failed to perform or comply with any other term, condition, or covenant of this
Lease on its part to be performed or complied with, for a period of ten (10)
days after notice of such failure from Landlord; or
(iii) If
the Premises are vacant, unoccupied or deserted for a period of
fifteen (15) days or more at any time during the term of this Lease;
or
(iv) If there shall occur
an Act of Bankruptcy, as defined in Section 38
hereof; or
(v) If Tenant's leasehold
interest under this Lease is sold under execution,
attachment or decree of court to satisfy any debt of Tenant, or if any lien
(including
a mechanic's lien) is filed against Tenant's leasehold interest and is not
discharged within ten (10) days thereafter.
(b) In
the event of default as defined in paragraph (a) hereof, Landlord, in addition
to any and all legal and equitable remedies it may have, shall have the
following remedies:
(i) To distrain for any
rent or additional rent in default; and (ii) At any time
after default, without notice, to declare this Lease terminated and enter the
Premises with or without legal process; and in such event Landlord shall have
the benefit of all provisions of law now or hereafter in force respecting the
speedy recovery of possession from Tenant's holding over or proceedings in
forcible entry and detainer, and Tenant waives any and all provisions for notice
under such laws.
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Notwithstanding such reentry and/or
termination, Tenant shall immediately be liable to Landlord for the sum of the
following: (a) all rent and additional rent then in arrears, without
apportionment to the termination date; (b) all other liabilities of Tenant and
damages sustained by Landlord as a result of Tenant's default, including, but
not limited to, the reasonable costs of reletting the Premises and any broker's
commissions payable as a result thereof; (c) all of Landlord's costs and
expenses (including reasonable court fees) in connection with such default and
recovery of possession; (d) the difference between the rent reserved under this
Lease for the balance of the term and the fair rental value of the Premises for
the balance of the term to be determined as of the date of reentry; or at
Landlord's option in lieu thereof, Tenant shall pay the amount of the rent and
additional rent reserved under this Lease at the times herein stipulated for
payment of rent and additional rent for the balance of the term, less any amount
received by Landlord during such period from others to whom the Premises may be
rented on such terms and conditions and at such rentals as Landlord, in its sole
discretion, shall deem proper; and (e) any other damages recoverable by
law. In the event Landlord brings any action against Tenant to
enforce compliance by Tenant with any covenant or condition of this Lease,
including the covenant to pay rent, and it is judicially determined that Tenant
has defaulted in performing or complying with any such covenant or condition,
then and in such event, Tenant shall pay to Landlord all costs and expenses
incurred by Landlord in bringing and prosecuting such action against Tenant,
including Landlord's attorney's fees.
(c) In
the event Tenant fails to pay Landlord any rental payment or other charge due
hereunder by the 5th day of
each month of the Lease Term, Tenant shall pay a late charge equal to fifteen
percent (15%) of the rental payment or other such charge, which late charge
shall be collectible as additional rent and shall be payable by Tenant to
Landlord within five (5) days after written notice from Landlord to Tenant
assessing the same. In addition, any such rental payment or other
charge which is delinquent for more than five (5) days following written notice
from Landlord shall bear interest from the date on which same was due at a rate
equal to four percentage points (4%) above the prime rate of interest as
published by the Wall Street Journal rate.
13. Damage
or Destruction.
(a) If, during the Lease
term, the Premises are damaged by fire or other casualty, but not to the extent
that Tenant is prevented from carrying on business in the Premises, Landlord
shall promptly cause such damage to be repaired; if such damage renders a
substantial portion of the Premises untenantable, the rent reserved hereunder
shall be reduced during the period of its untenantability proportionately to the
amount by which the area so rendered untenantable bears to the entire gross
rentable area of the Premises, and such reduction shall be apportioned from the
date of the casualty to the date when the Premise are rendered fully
tenantable. Notwithstanding the fore-going, in the event such fire or
other casualty damages or destroys any of Tenant's leasehold improvements,
alterations, betterments, fixtures or equipment, Tenant shall cause the same to
be repaired or restored at Tenant's sole cost and expense and Landlord shall
have no liability for the restoration or repair thereof.
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(b) If, during the Lease
term, the Premises or a substantial portion of the Building are rendered wholly
untenantable as the result of fire, the elements, unavoidable accident or other
casualty, Landlord shall have the option either to restore the Premises to their
condition immediately prior to the casualty or to terminate this Lease, such
option shall be exercised by Landlord by written notice to Tenant within thirty
(30) days after the fire, accident or casualty. If Landlord elects to
restore the Premises, such restoration shall be completed as promptly as
reasonably possible and the rent reserved hereunder shall xxxxx until the
Premises are again rendered tenantable.
14. Possession.
In case
this Lease provides for a specifically designated commencement date, and if
possession of the Premises, in whole or in part, cannot be given to Tenant on or
before such commencement date, Landlord agrees to xxxxx the rent proportionately
until possession is given to Tenant, and Tenant agrees to accept such pro rata
abatement as liquidated damages for the failure to obtain possession on the
commencement date herein specified. The parties hereto covenant and
agree that if the term of this Lease commences on a date other than the date
herein specified, they will, upon the request of either of them, execute an
agreement in recordable form setting forth the new commencement and termination
dates of the Lease term. Under no circumstances shall Landlord be
under any liability for failure to deliver possession of the Premises to Tenant
on the date herein specified.
15. Exterior
of Premises - Signs.
(a) Tenant
covenants and agrees that it will not place or permit any window display, sign,
billboard, marquee, lights, awning, poles, placard, advertising matter, or other
thing of any kind, in or about the exterior of the Premises or the Building
(including without limitation any displays on or in any motor vehicles used by
Tenant, its employees, agents and servants), nor paint or make any change in, to
or on the exterior of said Premises to change the uniform architecture, paint or
appearance of the Building, without in each such instance obtaining the prior
written consent of Landlord and, if applicable, of any owners' association or
similar entity which may govern the use of Xxxxxxx @ Xxxxxxxx. In the
event such consent is given, Tenant agrees to pay any minor privilege or other
tax arising as a result of any such installation immediately when
due. Tenant shall obtain, at Tenant's expense, all permits required
for such installation. Tenant further agrees to maintain any sign,
billboard, marquee, awning, decoration, placard, or advertising matter or other
thing of any kind as may be approved by Landlord in good condition and repair at
all times.
(b) Tenant further covenants
and agrees not to pile or place anything on the sidewalk, parking lot or other
exterior portion of the Premises or Building in the front, rear or sides of the
Building, not block any sidewalk, parking lot or other exterior portion of the
Premises or Building, not do anything that directly or indirectly will interfere
with any of the rights of ingress or egress or of light from any other tenant,
not do anything which will, in any way, change the uniform and general design of
the Building or the Property.
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16. Relocation.
Landlord
reserves the right at its option to relocate the Premises hereby leased to
another area within the Building or group of buildings in the Xxxxxxx @ Ashbook,
provided; (i) such new location shall be comparable to the Premises
hereby leased or to comparable space in another location; (ii) Landlord gives
Tenant thirty (30) days prior written notice of such relocation; and (iii)
Landlord pays the expenses of moving Tenant's furnishings, fixtures and
equipment, including Tenant's telephone system.
17. For
Rent/Sale Signs.
Landlord
shall have the right to place a "For Rent" sign on any portion of said Premises
for six (6) months prior to termination of this Lease and to place a "For Sale"
sign thereon at any time. During such six-month period, Landlord may
show the Premises and all parts thereof to prospective tenants between the hours
of 8:00 a.m. and 6:00 p.m. on any day except Sunday or any legal holiday on
which Tenant shall not be open for business.
18. Water
and Other Damage.
Landlord
shall not be liable for, and Landlord is hereby released and relieved from all
claims and demands of any kind by reason of or resulting from damage or injury
to person or property of Tenant or any other party, directly or indirectly
caused by (a) dampness, water, rain or snow, in any party of the Premises or in
any part of any other property of Landlord or of others, and/or (b) falling
plaster, steam, gas, electricity, or any leak or break in any part of the
Premises or from any pipes, appliances or plumbing or from sewers or the street
or subsurface or from any other place or any part of any other property of
Landlord or of others or in the pipes of the plumbing or heating facilities
thereof, no matter how caused.
19. Right
of Entry.
Landlord
and its agents, servants, employees, including any builder or contractor
employed by Landlord shall have the absolute and unconditional right, license
and permission, at any and all reasonable times, to enter and inspect the
Premise or any part thereof, and at the option of Landlord, to make such
reasonable repairs and/or changes in the Premises as Landlord may deem necessary
or proper and/or to enforce and carry out any provision of this
lease.
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20. Termination
of Term.
It is
agreed that the term of this Lease shall expire and terminate at the end of the
original term hereof (or at the expiration of the last renewal term, if this
Lease contains a renewal option and the same is properly exercised), without the
necessity of any notice by or to any of the parties hereto, unless otherwise
provided herein. If Tenant shall occupy the Premises after such
expiration or termination, it is understood that Tenant shall hold the Premises
as a tenant from month-to-month, subject to all the other terms and conditions
of this lease, at an amount equal to 150% of the highest monthly rental
installment reserved in this Lease. Landlord shall, upon such
expiration or termination of this Lease, be entitled to the benefit of all
public general or local laws relating to the speedy recovery of possession of
lands and tenements held over by tenants that may be now in force or may
hereafter be enacted.
21. Condemnation.
(a) If, during the term of
this Lease, all or a substantial part of the Premises shall be taken by police
power or under power of eminent domain, this Lease shall terminate as of, and
the rent (basic and additional) shall be apportioned to and xxxxx from and
after, the date of taking. Tenant shall have no right to participate
in any award or damages for such taking and hereby assigns all of its right,
title and interest therein to Landlord. For the purposes of this
paragraph, "a substantial part of the Premises" shall mean such part that the
remainder thereof is rendered inadequate for Tenant's business and that such
remainder cannot practicably be repaired and improved so as to be rendered
adequate to permit Tenant to carry on its business with substantially the same
efficiency as before the taking.
(b) If, during the Lease
term, less than a substantial part of the Premises (as hereinabove defined) is
taken by police power or under power of eminent domain, this Lease shall remain
in full force and effect according to its terms; and Tenant shall have no right
to participate in any award or damages for such taking and tenant hereby assigns
all of its right, title and interest in and to the award to
Landlord. In such event Landlord shall, at its expense, promptly make
such repairs and improvements as shall be necessary to make the remainder of the
Premises adequate to permit Tenant to carry on its business to substantially the
same extent and with substantially the same efficiency as before the taking;
provided that in no event shall Landlord be required to expend an amount in
excess of the award received by Landlord for such taking. If, as a
result of such taking, any part of the Premises is rendered permanently
unusable, the basic annual rent reserved hereunder shall be reduced in such
amount as may be fair and reasonable, which amount shall not exceed the
proportion which the area so taken or made unusable bears to the total area
which was usable by Tenant prior to the taking. If the taking does
not render any part of the Premises unusable, there shall be no abatement of
rent.
(c) For purposes of this
section, "taking" shall include a negotiated sale or lease and transfer of
possession to a condemning authority under bona fide threat of condemnation for
public use, and Landlord alone shall have the right to negotiate with the
condemning authority and conduct and settle all litigation connected with the
condemnation. As hereinabove used, the words "award or damages"
shall, in the event of such sale or settlement, include the purchase or
settlement price.
(d) Nothing herein shall be
deemed to prevent Tenant from claiming and receiving from the condemning
authority, if legally payable, compensation for the taking of Tenant's own
tangible property and such amount as may be payable by statute or ordinance
toward Tenant's damages for Tenant's loss of business, removal and relocation
expenses.
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22. Subordination.
This
Lease shall be subject to and subordinate at all times to the lien of any
mortgages and/or deeds of trust upon the Building now or hereafter to be made,
unless the mortgagee or holder of the deed of trust elects to have Tenant's
interest hereunder superior to the interest of the mortgagee or holder of such
deed of trust. This subordination provision shall be self-operative
and no further instrument of subordination shall be
required. The Tenant agrees to execute any documents necessary,
subsequent to the execution of this Lease, which are required to effect such
subordination. Tenant further hereby constitutes and appoints
Landlord as Tenant's attorney-in-fact to execute any such instrument for and on
behalf of Tenant.
23. Landlord's
Right to Perform Tenant's Covenants.
If Tenant
shall fail to perform any covenant or duty required of it by this Lease or by
law, Landlord shall have the right (but not the obligation) to perform the same,
and if necessary to enter the Premises for such purposes without
notice. The reasonable cost thereof to Landlord shall be deemed to be
additional rent hereunder payable by Tenant, shall be due and payable by Tenant
upon demand, and Landlord shall have the same rights and remedies with respect
to such additional rent as Landlord has with respect to the rental reserved
hereunder.
24. Attornment.
(a) If Landlord assigns
this Lease or the rents hereunder to a creditor as security for a debt, Tenant
shall, after notice of such assignment and upon demand by Landlord or the
assignee, pay all sums thereafter becoming due to Landlord hereunder either to
Landlord or to such assignee, as required by such notice. Tenant
shall also, upon receipt of such notice, have all policies of insurance required
hereunder endorsed so as to protect the assignee's interest as it may appear and
shall deliver such policies, or certificates thereof, to the
assignee.
(b) In the event the
Premises are sold at any foreclosure sale or sales, by virtue of any judicial
proceedings or otherwise, this Lease shall continue in full force and effect and
Tenant agrees, upon request, to attorn to and acknowledge the foreclosure
purchase or purchasers at such sale as the landlord hereunder. It is
understood that such purchaser or purchasers may, at its or their option,
terminate this Lease immediately upon giving written notice thereof to
Tenant.
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25. Non-Waiver
of Future Enforcement.
The
receipt of rent by Landlord, with knowledge of any breach of this Lease by
Tenant or of any default on the part of Tenant in the observance of performance
of any of the conditions or covenants of this Lease, shall not be deemed to be a
waiver of any provision of this Lease, including the provision
breached. No failure on the part of Landlord or of the Tenant to
enforce any covenant or provision herein contained nor any waiver of any right
hereunder by Landlord or Tenant shall discharge or invalidate such covenant or
provision or shall affect the right of Landlord or tenant to enforce the same in
the event of any subsequent default. The receipt by Landlord of any
rent or any sum of money or any other consideration hereunder paid by Tenant
after the termination, in any manner, of the term herein demised, or after the
giving by Landlord of any notice hereunder to effect such termination, shall not
reinstate, continue or extend the term herein demised, or destroy, or in any
manner impair the efficacy of any such notice of termination as may have been
given hereunder by Landlord to Tenant prior to the receipt of any such sum of
money or other consideration, unless so agreed to in writing and signed by
Landlord. Neither acceptance of the keys nor any other act or thing
done by Landlord or any agent or employee during the term herein demised shall
be deemed to be an acceptance of a surrender of the Premises, excepting only an
agreement in writing signed by Landlord accepting or agreeing to accept such
surrender.
26. Personal
Property Taxes.
Tenant
shall be responsible for and shall pay any taxes or assessments levied or
assessed during the term of this Lease against any leasehold interest of Tenant
or personal property or trade fixtures of Tenant of any kind, owned by Tenant or
placed in, upon or about the Premises by Tenant.
27. Recordation
of Lease.
Tenant
agrees that it will, upon Landlord's request, execute a memorandum of this Lease
in a form suitable for recording under applicable Virginia law. The
party recording such Memorandum of Lease shall pay all costs of recordation,
including any transfer or recordation taxes thereon.
28. Notices.
Any
notice required by this Lease shall be sent by certified mail to Landlord
at: c/x Xxxxxxx, 0000 Xxxx Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000. Any notice required by this Lease shall be sent by certified
mail to Tenant at:
Name:
Xxxxx
Xxxxxx
Address:
00000 Xxxxxxxx Xxxxx, Xxxxx
000
Xxxx, Xxxxx, Zip: Xxxxxxx, XX
00000
(if
no address is specified, such notices to Tenant shall be addressed to the
Premises). Either party may, at any time, and from time to time,
designate in writing a substitute address for that set forth above, and
thereafter all notices to such party shall be sent by certified mail to such
substitute address.
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29. Waiver
of Jury Trial.
THE LANDLORD AND THE TENANT WAIVE ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, COUNTERCLAIM, OR PROCEEDING BASED UPON,
OR RELATED TO, THE SUBJECT MATTER OF THIS LEASE. THIS WAIVER APPLIES
TO ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS AND PROCEEDINGS, INCLUDING
PARTIES WHO ARE NOT PARTIES TO THIS LEASE. THIS WAIVER IS KNOWINGLY,
INTENTIONALLY, AND VOLUNTARILY MADE BY THE TENANT AND THE TENANT ACKNOWLEDGES
THAT NEITHER THE LANDLORD, NOR ANY PERSON ACTING ON BEHALF OF THE LANDLORD, HAS
MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN
ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. THE TENANT FURTHER
ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE
REPRESENTED) IN THE SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, IN THAT IT HAS HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
30. Severability.
(a) It is agreed that, for
the purpose of any suit brought or based on this Lease, this Lease shall be
construed to be a divisible contract, to the end that successive actions may be
maintained thereon as successive periodic sums shall mature or be due hereunder,
and it is further agreed that failure to include in any suit or action any sum
or sums then matured or due shall not be a bar to the maintenance of any suit or
action for the recovery of said sum or sums so omitted; and Tenant agrees that
it will not, in any suit or suits brought or arising under this Lease for a
matured sum for which judgment has not previously been obtained or entered,
plead, rely on or interpose the defenses of res adjudicata,
former recovery, extinguishment, merger, election of remedies or other similar
defense as a default said suit or suits.
(b) If any term, clause or
provision of this Lease is declared invalid by a court of competent
jurisdiction, the validity for the remainder of this Lease shall not be affected
thereby but shall remain in full force and effect.
31. Non-Waiver.
It is
understood and agreed that nothing herein shall be construed to be a waiver of
any of the terms, covenants or conditions herein contained, unless the same
shall be in writing, signed by the party to be charged with such waiver, and no
waiver of the breach of any covenant herein shall be construed as a waiver of
such covenant or any subsequent breach thereof. No mention in this
Lease of any specific right or remedy shall preclude Landlord from exercising
any other right or from having any other remedy or from maintaining any action
to which it may be otherwise entitled either at law or in equity.
32. Successors
and Assigns.
(a) Except as herein
provided, this Lease and the covenants and conditions herein contained shall
inure to the benefit of and be binding upon Landlord its successors and assigns;
shall be binding upon Tenant, its successors and assigns (including without
limitation any trustee in bankruptcy or debtor-in-possession, and any assignee
of the same); and shall inure to the benefit of Tenant and only such assignees
of Tenant to whom an assignment by Tenant has been consented to in writing by
Landlord. In the event more than one person, firm or corporation is
named herein as Tenant, the liability of all parties named herein as Tenant
shall be joint and several.
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(b) In the event Landlord's interest
under this Lease is transferred or assigned and written notice thereof is given
to Tenant, Landlord (or any subsequent assignee or transferee of Landlord's
interest under this Lease who gives such notice to Tenant) shall automatically
be relieved and released from and after the date of such transfer or conveyance
from all liability hereunder. Further, the liability of Landlord, its
successors and assigns, under this Lease shall at all times be limited solely to
Landlord's interest in the land and improvements comprising the Building and in
the event the owner of Landlord's interest in this Lease is at any time an
individual, partnership, joint venture or unincorporated association, Tenant
agrees that such individual or the members or partners of such partnership,
joint venture or unincorporated association shall not be personally or
individually liable or responsible for the performance of any of Landlord's
obligations hereunder.
33. Security
Deposit.
Landlord
hereby requires receipt from Tenant of the sum of Six Thousand, Four Hundred
Eighty-Nine Dollars and 38/100 ($6,489.38), which sum represents a security
deposit for the faithful performance of Tenant's obligations under this
Lease. Tenant agrees that Landlord shall have the right, but not the
obligation, in its sole discretion and without notice to Tenant to apply said
security deposit or any portion thereof to cure or remedy any default by Tenant
hereunder, including default in payment of rent. If Landlord so
applies the security deposit or any portion thereof Tenant shall, upon demand,
immediately reimburse Landlord for the portion of the security deposit so
applied; and any failure of Tenant to do so within five (5) days after
Landlord's demand therefor shall constitute an event of default
hereunder. Said sum, if not sooner applied, shall be returned to
Tenant, without interest, within ninety (90) days after vacating of the Premises
by Tenant and termination of this Lease (or upon termination of the last renewal
term of this Lease if this Lease contains a renewal option and Tenant properly
exercises said option), provided: (i) Tenant is not then in default
under any of the provisions of this Lease; (ii) there is no damage to the
Premises beyond ordinary wear and tear and the Premises have been left in a
clean condition and in good order with all debris, rubbish and trash placed in
property containers; (iii) all keys to the Premises have been returned to the
Landlord; and (iv) Tenant's forwarding address h as been left with
Landlord. Tenant further agrees that Landlord shall be entitled to
commingle said security deposit with its own funds, and that no mortgagee or
holder of a deed of trust on the Premises and no purchaser of said Premises at
any foreclosure sale shall have any liability to Tenant for Tenant's security
deposit.
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34. Notices
to Mortgagee.
Tenant
agrees that a copy of any notice of default from Tenant to Landlord shall also
be sent to the holder of any mortgage or deed of trust on the Premises, provided
Tenant has been given written notice of the fact that such mortgage or deed of
trust has been made; and Tenant shall allow said mortgagee or holder of the deed
of trust a reasonable time, not to exceed ninety (90) days from the receipt of
said notice, to cure, or cause to be cured, any such default. If such
default cannot reasonably be cured within the time specified herein, then such
additional time as may be necessary shall be allowed, provided the curing of
such default is commenced and diligently pursued (including, but not limited to,
commencement of foreclosure proceedings if necessary to effect such cure) in
which event this Lease shall not be terminated while such remedies are being
thus diligently pursued.
35. Estoppel
Certificate.
Tenant
shall, at any time and from time to time during the term of this Lease or any
renewal thereof, upon request of Landlord, execute, acknowledge, and deliver to
Landlord (or its designee) a statement in writing, certifying that this Lease is
unmodified and in full force and effect if such is the fact (or if there have
been any modifications thereof, that the same is in full force as modified and
stating the modifications) and the dates to which the rents and other charges
have been paid in advance, if any. Any such statement delivered
pursuant to this paragraph may be relied upon by any prospective purchaser of
the estate of Landlord or by the mortgagee or any assignee of any mortgagee or
the trustee or beneficiary of any deed of trust constituting a lien on the
Premises or the Building.
36. Bankruptcy.
(a) An "Act of Bankruptcy"
shall mean:
(i) the application by Tenant or any
guarantor of Tenant or its or their consent to the appointment of a receiver,
trustee or liquidator of Tenant or any guarantor of Tenant or a substantial part
of its or their assets;
(ii) the filing of voluntary petition
in bankruptcy or the admission in writing by Tenant or any guarantor of Tenant
of its inability to pay its debts as they become due;
(iii) the making by Tenant or any
guarantor of Tenant of an assignment for the benefit of its
creditors;
(iv) the filing of a petition or an
answer seeking a reorganization or an arrangement with its creditors or an
attempt to take advantage of any insolvency law;
(v) the filing of an answer admitting
the material allegations of a petition filed against Tenant or any guarantor of
Tenant in any bankruptcy, reorganization or insolvency proceeding;
(vi) the entering of an order,
judgment or decree by any court of competent jurisdiction adjudicating Tenant or
any guarantor of Tenant a bankrupt or an insolvent, approving a petition seeking
such a reorganization, or appointing a receiver, trustee or liquidator of Tenant
or any guarantor of Tenant or of all or a substantial part of its or their
assets; or
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(vii) the commencing of any proceeding
under any bankruptcy, reorganization, arrangement, insolvency, readjustment,
receivership or similar law, and the continuation of such order, judgment,
decree or proceeding unstayed for a period of sixty (60) days.
(b) Upon the occurrence of
an Act of Bankruptcy, this Lease and all rights of Tenant hereunder shall
automatically terminate with the same force and effect as if the date of any
such event were the date stated herein for the expiration of the term, and
Tenant shall vacate and surrender the Premises, but shall remain liable as
herein provided. Landlord reserves any and all remedies provided
herein or at law or in equity.
(c) If this Lease is not
terminated in accordance with subsection (b) above because such termination is
not permitted under the Bankruptcy Code, 11
U.S.C. 101 et seq. (the "Bankruptcy
Code"), then upon the filing of a petition by or against Tenant under the
Bankruptcy Code, Tenant, as debtor and as debtor in possession, and any trustee
who may be appointed, agree:
(i) To perform each and every
obligation of Tenant under this Lease until such time as this Lease is either
rejected or assumed by order of the United States Bankruptcy Court;
(ii) To pay monthly in advance on the
first day of each month as reasonable compensation for use and occupancy of the
Premises an amount equal to all basic rent and all additional rent reserved
hereunder;
(iii) To reject or assume this Lease
within sixty (60) days of the filing of such petition under Chapter 7 of the
Bankruptcy Code or within thirty (30) days of the filing of a petition under any
other Chapter;
(iv) To give Landlord at least
forty-five (45) days prior written notice of any proceeding relating to any
assumption of this Lease;
(v) To give Landlord at least thirty
(30) days prior written notice of any abandonment to be deemed conclusively a
rejection of this Lease;
(vi) To be deemed conclusively to have
rejected this Lease in the event of the failure to comply with any of the above;
and
(vii) To be deemed to have consented
to the entry of an order by an appropriate United States Bankruptcy Court
providing all of the above, waiving notice and hearing of the entry of
same.
(d) Not withstanding
anything in this Lease to the contrary, all amounts payable by Tenant to or on
behalf of Landlord hereunder, whether or not expressly denominated as rent,
shall constitute "rent" for the purposes of Section 502(b)(7) of the Bankruptcy
Code, including, without limitation, reasonable attorney's fees incurred by
Landlord by reason of Tenant's bankruptcy.
21
(e) In the event that this Lease is
assigned to any person or entity pursuant to the provisions of the Bankruptcy
Code, any and all monies or other consideration payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord, and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies or other consideration
constituting Landlord's property under the preceding sentence not directly paid
or delivered to Landlord shall be held in trust for the benefit of Landlord by
the recipient thereof and be promptly paid to or turned over to
Landlord. If Tenant assumes this Lease and proposes to assign the
same pursuant to the provisions of the Bankruptcy Code to any person or entity
who shall have made a bona fide offer to accept an assignment of this Lease on
terms acceptable to Tenant, the notice of such proposed assignment setting forth
(i) the name and address of such person; (ii) all of the terms and conditions of
such offer; and (iii) adequate assurance to be provided to Landlord to assure
such assignee's future performance under the Lease, including, without
limitation, the assurance referred to in Section 365(b)(3) of the Bankruptcy
Code, or any such successor or substitute legislation or rule thereto, shall be
given to Landlord by Tenant, but in any event no later than ten (10) days prior
to the date that Tenant shall make application to a court of competent
jurisdiction for authority and approval to enter into such assignment and
assumption, and Landlord shall thereupon have the prior right and option, to be
exercised by notice to Tenant given at any time prior to the effective date of
such proposed assignment, to accept an assignment of this Lease upon the same
terms and conditions and for the same consideration, if any, as the bona fide
offer made by such person, less any brokerage commission which may be payable
out of the consideration to be paid by such person for the assignment of this
Lease. Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code shall be deemed without further act or
deed to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall, upon
demand, execute and deliver to Landlord an instrument confirming such
assumption.
(f) Nothing
contained in this Section 35 shall be deemed in any manner to limit Landlord's
rights and remedies under the Bankruptcy Code, as presently existing or as may
hereafter be amended.
(g) No default under this
Lease by Tenant, either prior to or subsequent to any Act of Bankruptcy, shall
be deemed to have been waived unless expressly done so in writing by
Landlord.
(h) Neither Tenant's
interest in this Lease, nor any estate created hereby in Tenant nor any interest
herein or therein, shall pass to any trustee or receiver or assignee for the
benefit of creditors or otherwise by operation of law except as may specifically
be provided by the Bankruptcy Code.
22
37. Environmental
Provisions.
(a) Tenant
and its successors and assigns shall use and operate the building, the property
and the leased premises, respectively, at all times during the term hereof,
under and in compliance with all federal and State of Xxxxxxxx xxxx and
regulations, and in compliance with all applicable Environmental Legal
Requirements. "Environmental Legal Requirements" shall mean any
applicable law relating to public health, safety or the environment, including,
without limitation, relating to releases, discharges or omissions to air, water,
land or groundwater, to the withdrawal or use of groundwater, to the use and
handling of polychlorinated biphenyls ("PCB's") or asbestos, or asbestos
containing products, to the disposal, treatment, storage or management of solid
or other hazardous or harmful wastes or to exposure to toxic, hazardous or other
harmful materials (collectively "Hazardous Substances") to the handling,
transportation, discharge or release of gaseous or liquid substance and any
regulation or final order or directive issues pursuant to such
statute or ordinance, in each case applicable to the premises, the building or
its operation, construction or modification, including without limitation the
following: the Clean Air Act, the Federal Water Pollution Control Act
("FWPCA"), the Safe Drinking Water Act, the Toxic Substances Control Act, the
Comprehensive Environmental Response Compensation and Liability Act, as amended
by the Solid and Hazardous Waste Amendments of 1984 ("RCRA"), the Occupational
Safety and Health Act, the Emergency Planning and Community Right-to-Know Act of
1986, the Solid Waste Disposal Act, and any state statutes addressing similar
matters, and any state statute providing for financial responsibility for
clean-up or other actions with respect to the release or threatened release of
any of the above-referenced substances.
(b) Tenant
hereby indemnifies and saves Landlord harmless from all liabilities and claims
arising from the use, storage or placement of any Hazardous Substances upon the
premises or elsewhere within the Building or property of Landlord (if brought or
placed thereon by Tenant, its agents, employees, contractors or invitees); and
Tenant shall (i) within fifteen (15) days after written notice thereof, take or
cause to be taken, at its sole expense, such actions as may be necessary to
comply with all Environmental Legal Requirements and (ii) within fifteen (15)
days after written demand therefor, reimburse Landlord for any amounts expended
by Landlord to comply with any Environmental Requirements with respect to the
premises or with respect to any other portions of Landlord's Building or
property as the result of the placement or storage of Hazardous Substances by
Tenant, its agents, employees, contractors or invitees, or in connection with
any judicial or administrative investigation or proceeding relating thereto,
including, without limitation, reasonable attorneys' fees, fines or other
penalty payments.
(c) For
purposes of this provision, Tenant shall be conclusively deemed to have violated
the Environmental Legal Requirements if (i) any notice or order is directed to
either Landlord or Tenant by any governmental agency, body, or court alleging
that such violation has occurred; or (ii) if Landlord obtains and delivers to
Tenant a report prepared by an engineer or other party engaged in the business
of testing or determining the existence of Hazardous Substances, which report
states that there are Hazardous Substances used, stored or placed upon the
premises. In the event Tenant is deemed to have violated any of the
Environmental Legal Requirements as set forth in the preceding sentence,
Landlord shall have the right and option, after fifteen (15) days prior written
notice to Tenant, to terminate this lease by written notice thereof to Tenant,
in which event Landlord shall retain all rights and remedies, and Tenant shall
be subject to all liabilities, set forth in Article 13 of this lease
notwithstanding such termination.
23
(d) Tenant
covenants and agrees to use Tenant’s best efforts to prevent any condition in
the Premises, such as excessive moisture, which could create an environment
conducive to mold growth and Tenant agrees not to xxxxxx or encourage any
condition to exist in the Premises which would create such mold
growth. Tenant covenants and agrees to regularly inspect the Premises
for the presence of mold or for any condition that may reasonably be expected to
give rise to mold, including but not limited to the observance of suspected
excess dampness or instances of water damage in the Premises. In the
event any such condition develops, Tenant agrees to remedy such condition
promptly at Tenant’s sole expense. Landlord is not responsible for
any act or omission which leads to or exacerbates mold growth, and Tenant hereby
agrees to indemnify, defend and hold Landlord harmless from any such costs,
expenses, actions or liabilities arising from mold within the Premises, which
indemnity shall include reasonable legal fees incurred by Landlord as the result
thereof. Tenant further agrees promptly to give notice to Landlord in
writing of any actual or potential mold problem, regardless of what may have
caused such problem. Tenant acknowledges that prior to taking
possession of the Premises, it will conduct its own inspection for the presence
of mold in the Premises, and will notify Landlord of any mold or suspected mold
found in the Premises, and if Tenant fails to notify Landlord of the presence of
any mold or suspected mold in the Premises prior to the Lease commencement date,
the Premises shall conclusively be deemed to be free of mold as of the Lease
commencement date.
(e) Tenant
further agrees that, in the event Landlord notifies Tenant of Landlord’s
intention to remediate mold in the Premises or in any adjoining property of
Landlord, Tenant will provide access to the Premises to permit Landlord to
remediate any such problem. In the event Landlord determines that
Tenant should vacate the Premises during such remediation which was not caused
by any act or omission of Tenant, its agents, employees, contractors or
invitees, Tenant agrees to relocate, at Landlord’s expense, to another premises
owned by Landlord or an affiliate of Landlord, if necessary, in order for
Landlord to complete such remediation.
38. Rules
and Regulations.
Tenant shall faithfully observe and
comply with the rules and regulations attached hereto as Exhibit C, and with any
amendments or modifications thereto that Landlord shall, from time to time,
promulgate with respect to the Building. Any such amendments or
modifications to the rules and regulations shall be binding upon Tenant delivery
of a copy of them to Tenant. Landlord shall not be responsible to
Tenant for the nonperformance of any of said rules and regulations by any other
tenants or occupants.
39. Captions.
The
captions of the various sections of this Lease are for convenience only and are
not a part of this Lease. Such captions shall not be construed to
define or limit any of the provisions of this Lease.
40. Final
and Entire Agreement.
This
Lease contains the final and entire agreement between the parties hereto, and
neither they nor their agents shall be bound by any terms, conditions or
representations not herein written.
24
41. Tenant
Representative.
The name,
address and telephone number of Tenant representative to be contacted in event
of emergency are as follows:
Name:
Xxxxx
Xxxxxx
Address:
00000 Xxxxxxxx Xxxxx, Xxxxx
000
Xxxx, Xxxxx, Xxx: Xxxxxxx, XX
00000
42.
Renewal
Option.
If Tenant
is not then in default under this Lease or any of the provisions hereof, Tenant
may extend the term of this Lease for two (2) additional successive periods of
one (1) year each, by notifying Landlord in writing of its intention to do so at
least ninety (90) days prior to the expiration of the then current
term. Each such renewal term shall be under the same terms and
conditions as are herein set forth except that the annual rental for each
succeeding renewal term shall be adjusted as follows:
RENTAL
RATE FOR THE RENEWAL TERM SHALL BE THE THEN CURRENT RATE ESCALATED BY THREE
PERCENT (3%) THROUGHOUT THE RENEWAL TERM.
Notwithstanding
the foregoing, Landlord shall have the right to terminate Tenant's right to
renew as herein set forth provided that Landlord gives Tenant written notice of
its intention not to renew Tenant either prior to Tenant's written notice to
Landlord of its intention to renew or within five (5) business days following
Tenant's written notice to Landlord of its intention to renew. If
Landlord provides its timely notice to Tenant as herein set forth, then Tenant's
rights to renew shall be terminated and Landlord shall be free to lease the
Premises to third parties.
43.
Additional
Items.
Landlord
shall provide the Premises in “as-is” condition. In addition,
Landlord shall clean all carpet and repaint the Premises.
44. Time.
Time is
of the essence for all purposes in this Lease.
-
Signatures
on following page -
25
WITNESS
the hands and seals of the parties hereto as of the day and year first above
written.
|
WITNESS:
|
LANDLORD:
|
|||
|
XXXXXXX-AB5,
LLC
By: Xxxxxxx
Management Corporation, Agent
|
||||
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/s/Xxxxxx
X. Xxxxxxxxx
|
By:
|
/s/ Xxxxx X.
Xxxxxx
|
(SEAL) | |
|
Xxxxxx
X. Xxxxxxxxx
|
Name:
Xxxxx X. Xxxxxx
Title:
President
|
|||
|
WITNESS/ATTEST:
|
TENANT:
STEELCLOUD,
INC.
|
|||
|
By:
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/s/Xxxxx X.
Xxxxxx
|
(SEAL) | ||
|
/s/
Xxxxxxx Xxxxxxx
|
Name:
Xxxxx X. Xxxxxx
|
|||
|
Xxxxxxx
Xxxxxxx
|
Title:
President & CEO
|
|||
26
XXXXXXX @
XXXXXXXX
OFFICE
LEASE
BY
AND BETWEEN
XXXXXXX-AB5,
LLC, LANDLORD AND
STEELCLOUD,
INC., TENANT
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1.
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RENTAL.
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1
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2.
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USE.
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2
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3.
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SERVICE AND
UTILITIES.
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2
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4.
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COMPLIANCE WITH
LAWS.
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4
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5.
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ASSIGNMENT AND
SUBLETTING.
|
4
|
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6.
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OPERATING
COSTS.
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5
|
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7.
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INCREASE IN LANDLORD'S
INSURANCE RATES.
|
6
|
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8.
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INSURANCE -
INDEMNITY.
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6
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9.
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ALTERATIONS.
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9
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10.
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OWNERSHIP OF
ALTERATIONS.
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9
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11.
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REPAIRS AND
MAINTENANCE.
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9
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12.
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DEFAULT.
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11
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13.
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DAMAGE OR
DESTRUCTION.
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12
|
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14.
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POSSESSION.
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13
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15.
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EXTERIOR OF PREMISES -
SIGNS.
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13
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16.
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RELOCATION.
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14
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17.
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FOR RENT/SALE
SIGNS.
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14
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18.
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WATER AND OTHER
DAMAGE.
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14
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19.
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RIGHT OF
ENTRY.
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14
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20.
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TERMINATION OF
TERM.
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15
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21.
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CONDEMNATION.
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15
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1
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22.
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SUBORDINATION.
|
16
|
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23.
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LANDLORD'S RIGHT TO PERFORM
TENANT'S COVENANTS.
|
16
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24.
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ATTORNMENT.
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16
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25.
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NON-WAIVER OF FUTURE
ENFORCEMENT.
|
17
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26.
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PERSONAL PROPERTY
TAXES.
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17
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27.
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RECORDATION OF
LEASE.
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17
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28.
|
NOTICES.
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17
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29.
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WAIVER OF JURY
TRIAL.
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18
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30.
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SEVERABILITY.
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18
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31.
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NON-WAIVER.
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18
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32.
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SUCCESSORS AND
ASSIGNS.
|
18
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33.
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SECURITY
DEPOSIT.
|
19
|
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34.
|
NOTICES TO
MORTGAGEE.
|
20
|
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35.
|
ESTOPPEL
CERTIFICATE.
|
20
|
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36.
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BANKRUPTCY.
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20
|
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37.
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ENVIRONMENTAL
PROVISIONS.
|
23
|
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38.
|
RULES AND
REGULATIONS.
|
24
|
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39.
|
CAPTIONS.
|
24
|
|
40.
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FINAL AND ENTIRE
AGREEMENT.
|
24
|
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41.
|
TENANT
REPRESENTATIVE.
|
25
|
|
42.
|
RENEWAL
OPTION.
|
25
|
|
43.
|
ADDITIONAL
ITEMS.
|
25
|
|
44.
|
TIME.
|
25
|
|
44.
|
ADDITIONAL
ITEMS.
|
24
|
2
EXHIBIT
A – LEASE PLAN
EXHIBIT
B – LANDLORD’S WORK -Workletter
EXHIBIT
C – RULES AND REGULATIONS
3
