COMMERCIAL LEASE
between
XXXXXXXXXX INVESTMENTS, II
and
XXXXXXX.XXX, INC.
COMMERCIAL LEASE
LEASE
XXXXXXXXXX INVESTMENTS II, Landlord
XXXXXXX.XXX, INC., Tenant
Page
Table of Contents
ARTICLE 1. Lease 1
ARTICLE 2. Initial Term and Renewal Option 2
ARTICLE 3. Rent 2
ARTICLE 4. Maintenance and Repairs 3
ARTICLE 5. Alterations 4
ARTICLE 6. Insurance 5
ARTICLE 7. Personal Property and Fixtures;
Tenant's Right of Removal 6
ARTICLE 8. Signs 7
ARTICLE 9. Damage by Fire or Other Casualty 7
ARTICLE 10. Eminent Domain 8
ARTICLE 11. Default 9
ARTICLE 12. Funds Expended by Landlord 10
ARTICLE 13. Use of Demised Premises 11
ARTICLE 14. Landlord's Warranties and Representations 16
ARTICLE 15. Waiver of Landlord's Lien 16
ARTICLE 16. Subordination, Nondisturbance and Attornment 16
ARTICLE 17. Inspection 17
ARTICLE 18. Indemnity 17
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ARTICLE 19. Tender of Possession and Possession Date 18
ARTICLE 20. Estoppel Certificates 19
ARTICLE 21. Assignment and Subletting 19
ARTICLE 22. Holding Over 19
ARTICLE 23. Notices 20
ARTICLE 24. General 20
ARTICLE 25. Authority 22
ARTICLE 26. Attorneys' Fees 23
ARTICLE 27. Brokerage Commission 24
EXHIBIT A
EXHIBIT C
ARTICLE 28. Lease Addendum; Purchase Option
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LEASE
THIS LEASE, made and entered into this 1st day of March, 2000, by and
between XXXXXXXXXX INVESTMENTS II, a Virginia general partnership ("Landlord"),
and XXXXXXX.XXX, INC., a Delaware corporation ("Tenant").
W I T N E S S E T H :
In consideration of the mutual covenants herein contained, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties intending to be legally bound hereby agree as follows:
ARTICLE 1. Lease.
1.1. Date of Execution. This Lease shall not be binding upon the parties
until fully executed by each party hereto. When fully executed, the "Date of
Execution" of the Lease shall be the date upon which the last party to sign this
Lease executed the same.
1.2. Demised Premises. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord the land and premises located at 00000 Xxxxxxx Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000, part of a larger tract described more particularly in
Exhibit A, attached hereto and made a part hereof, together with all Landlord's
rights, privileges, easements, and appurtenances in, over and upon adjoining and
adjacent public and private land, highways, roads and streets reasonably
required for ingress and egress to and from such premises. Such land, premises
and the improvements to be constructed by Landlord, including approximately
fifteen thousand one hundred twenty (15,120) square feet of buildings, thereon
and appurtenances are referred to in this Lease as the "Demised Premises."
ARTICLE 2. Initial Term and Renewal Option.
2.1. Initial Term. The initial term of this Lease (the "Initial Term")
shall be five (5) years commencing at 12:01 a.m. on the Possession Date as
defined in Article 19 hereof (the "Commencement Date") and terminating at 12:00
midnight on the fifth (5th) anniversary of the Commencement Date, unless
extended pursuant to Article 2.2. Landlord and Tenant agree to sign on or before
the Possession Date a document titled "Commencement Date Agreement," reciting
the Commencement Date and termination date of the Initial Term and the
commencement of Tenant's liability for the payment of rent and other charges
specified herein, and this document shall be conclusive as to the Lease term.
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2.2. Renewal Option. Tenant may, at its option, renew this Lease for two
(2) additional five (5) year terms. Tenant may exercise its right to extend the
Lease for the first additional five-year term ("First Renewal Term") by giving
written notice to Landlord of Tenant's election, not later than sixty (60)
calendar days prior to the date of termination of the Initial Term. If the
Tenant fails to exercise its right to extend for the First Renewal Term within
the time provided herein, all of Tenant's rights to extend this Lease shall
automatically terminate. If Tenant elects to extend the Lease for the First
Renewal Term, the First Renewal Term shall commence on the fifth anniversary of
the Commencement Date and continue for a period of five (5) years thereafter,
unless sooner terminated in accordance with the terms of this Lease. Tenant may
exercise its right to extend the Lease for the second additional five-year term
("Second Renewal Term") by giving written notice to Landlord of Tenant's
election, not later than sixty (60) calendar days prior to the date of
termination of the First Renewal Term. If the Tenant fails to exercise its right
to extend for the Second Renewal Term within the time provided herein, all of
Tenant's rights to extend this Lease shall automatically terminate. If Tenant
elects to extend the Lease for the Second Renewal Term, the Second Renewal Term
shall commence on the tenth (10th) anniversary of the Commencement Date and
continue for a period of five (5) years thereafter, unless sooner terminated in
accordance with the terms of this Lease. The First Renewal Term and the Second
Renewal Term shall be upon the same terms and conditions as the Initial Term,
except as otherwise specifically set forth herein.
ARTICLE 3. Rent.
3.1. Initial Term. For the Initial Term of this Lease, Tenant shall pay
Landlord base rent at the rate of TWO HUNDRED TEN THOUSAND DOLLARS ($210,000.00)
per annum payable in equal monthly installments of SEVENTEEN THOUSAND FIVE
HUNDRED DOLLARS ($17,500.00) per month on the first (1st) day of each month, in
advance.
Landlord hereby acknowledges the receipt of THIRTY-FIVE THOUSAND DOLLARS
($35,000.00) from Tenant ("Tenant's Rent Deposit"), which amount shall be
applied against the monthly installments of rent due for the twelfth and
twenty-fourth months thereunder.
3.2. Renewal Term. If Tenant elects to extend the Lease for the First
Renewal Term, for each year during the First Renewal Term, Tenant shall pay
Landlord base rent of TWO HUNDRED FORTY-SIX THOUSAND DOLLARS ($246,000.00) per
annum, payable in equal
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monthly installments of TWENTY THOUSAND FIVE HUNDRED DOLLARS ($20,500.00) per
month on the first day of each month, in advance. If Tenant elects to extend the
Lease for the Second Renewal Term, for each year during the Second Renewal Term,
Tenant shall pay Landlord base rent of TWO HUNDRED EIGHTY-EIGHT THOUSAND DOLLARS
($288,000.00) per annum, in equal monthly installments of TWENTY-FOUR THOUSAND
DOLLARS ($24,000.00) per month on the first day of each month, in advance.
3.3. Costs other than Rent.
3.3.1. During the term of this Lease, including any Renewal Term, Landlord
shall pay all real properly taxes on the Demised Premises, before the date on
which such taxes become delinquent. During the term of this Lease, including any
Renewal Term, Tenant shall promptly pay all charges for water, trash and waste
removal service, electricity, gas, telephone service, sewerage service and any
and all utilities furnished to the Demised Premises, before the date on which
such charges become delinquent. During the term of this Lease Landlord shall pay
hazard insurance upon all improvements on the Demised Premises as provided in
Article 6.1 hereof.
3.3.2. Landlord shall not be liable for any interruption or failure
whatsoever in utility services, except to the extent such interruption or
failure occurs in a part of a utility line the maintenance of which is
Landlord's responsibility.
3.3.3. Landlord shall pay and discharge all special assessments for local
improvements levied on the Demised Premises.
3.3.4. Tenant shall pay and discharge all taxes imposed upon any of its
property located upon the Demised Premises.
3.4. Proration of Rent Payments and Late Rent Payments.
3.4.1. If the Commencement Date of the Initial Term or any Renewal Term of
this Lease is other than the first day of a calendar month, or the termination
date of any term is other than the last day of a calendar month, the rent to be
paid to Landlord on a monthly basis shall be prorated on a per diem basis.
3.4.2. Tenant shall have a ten (10) day grace period from the first day of
a calendar month during which rent payment(s) can be made without incurring a
late penalty charge of
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five percent (5%) of the monthly base rent.
ARTICLE 4. Maintenance and Repairs.
4.1. By Landlord. Landlord shall keep the foundations, exterior walls, all
utility service lines not repaired or maintained by public or private utility
companies, roof and all structural portions of all improvements on the Demised
Premises in good condition and repair throughout the term of this Lease and any
extensions thereof. In the event that the Demised Premises should become in need
of repairs to be made by Landlord hereunder, Tenant shall give prompt notice
thereof to Landlord. Except as otherwise specifically provided herein, Tenant
shall be responsible for maintaining the heating, air-conditioning and plumbing,
interior finishes, fixtures and premises in good condition throughout the term
of this Lease and any extension thereof in at least as good condition as the
same were at the Commencement Date, reasonable wear and tear excepted. Tenant
shall pay the cost incurred during the term of this Lease or any extension
thereof in repairing and maintaining the air- conditioning units serving the
Demised Premises. Landlord shall pay the cost of replacing any air-conditioning
unit or major component of any unit, if replacement is required during the term
of this Lease or any extension thereof.
4.2. By Tenant. Tenant shall keep the Demised Premises in good, clean
condition and shall at its expense, make all needed repairs and replacements,
except for repairs and replacements required to be made by Landlord under the
provisions of Article 4.1. At the expiration of this Lease, Tenant shall
surrender the Demised Premises in good condition, except for reasonable wear and
tear, loss by fire or other casualty, or any repairs or replacements required to
be made by Landlord; and shall surrender all keys for the Demised Premises to
Landlord.
4.3. Landlord shall maintain and repair parking lots, sidewalks and common
areas including landscaping areas; provided, however, that Tenant shall be
responsible for snow and ice removal from sidewalks and entry ways to the
Demised Premises. Landlord will be responsible for snow removal from parking
lots.
ARTICLE 5. Alterations.
5.1. Non-Structural. Tenant shall have the right, at its expense, from time
to time, to redecorate the Demised Premises and to make such non-structural
alterations and changes thereto as Tenant may desire.
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5.2. Structural. Upon consent of Landlord, which consent shall not be
unreasonably withheld or delayed, Tenant shall have the right, at its expense,
from time to time, to make structural alterations and additions to the Demised
Premises if such structural alterations do not impair the structural soundness
or diminish the value of the Demised Premises. In its request to the Landlord
for such consent, Tenant shall include proposed plans for such alterations.
5.3. Licenses and Permits. Tenant shall at its expense procure all
necessary licenses and permits for any alterations permitted under this Article
5. Landlord, at Tenant's request and expense, shall execute such documents as
may be required by any public or quasi public authority for the purpose of
obtaining any such license or permit.
5.4. Ownership. All alterations or improvements made by Tenant to the
Demised Premises, other than trade fixtures or Tenant's personal property, shall
become the property of Landlord upon termination of this Lease, unless required
to be removed at the direction of Landlord as provided below. It is expressly
understood and agreed that any aboveground storage tank or wastewater filtration
equipment installed by Tenant pursuant to Article 5.5 shall be considered
Tenant's trade fixtures or personal property. Landlord, at its option, may
require Tenant to remove any and all alterations or improvements installed or
made by Tenant upon termination of the Lease, in which event Tenant shall repair
any damage caused by such removal to restore Landlord's property to
substantially the condition as on the Commencement Date, reasonable wear and
tear excepted.
5.5. Tenant's Improvements. Landlord does hereby consent and approve the
installation of all aboveground storage tanks or systems necessary for the
operation of the Tenant's business, including an equipment wash concrete pad,
spill containment pad, and related or associated equipment, sumps and piping,
the installation of which shall be in accordance with existing city, parish,
state and federal statutes, ordinances, regulations, and conditions of any
permits legally required therefor. Prior to commencement of any such
installation, Tenant shall present to Landlord plans for such alterations for
Landlord's approval, which shall not be unreasonably withheld or delayed.
ARTICLE 6. Insurance.
6.1. Hazard Insurance. Landlord, at its expense, shall keep all
improvements on the Demised Premises, including all buildings and other
improvements currently or hereafter in
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existence, insured against loss or damage by fire and the hazards covered by
extended coverage insurance in an amount equal to not less than the full
replacement value of such improvements without offset for depreciations.
6.2. Liability Insurance. Tenant, at its expense, shall maintain
comprehensive general liability insurance insuring Landlord and Tenant against
death, injury to persons or damage to property on or about the Demised Premises,
with minimum limits of $1,000,000 for injuries to or death of one person as a
result of any one accident or disaster, $2,000,000 for injuries to or death of
more than one person as a result of any one accident or disaster, and $2,000,000
for property damage.
6.3. Proof of Insurance. Upon the written request of either Landlord or
Tenant to the other, each party shall furnish to the requesting party a complete
copy of the insurance policy(ies) required by this Article.
6.4. Indemnity, Release. and Waiver. Landlord and Tenant hereby agree to
indemnify the other against, and hold the other harmless from, all claims,
liabilities, demands, or causes of action, including all reasonable expenses of
the indemnified party incidental thereto, for injury to or death of any
employee, agent or customer of the indemnifying party arising within or on the
Demised Premises and caused by the indemnifying party's negligent act or
omission or negligent act or omission of any employee, agent or customer of the
indemnifying party. The liability of the indemnifying party to indemnify as set
forth above, however, shall not extend to any matter against which the
indemnified party shall be effectively protected by insurance; provided,
however, that if any such liability shall exceed the amount of the effective and
collectible insurance in question, the liability of the indemnifying party
pursuant to this Article shall apply to such excess. Landlord and Tenant further
waive and release each other of and from any and all rights of recovery, claims,
action or causes of action against each other, their respective agents, servants
and employees, for any loss or damage that may occur to the Demised Premises or
property on or within the Demised Premises, by reason of fire or the elements of
nature, regardless of cause or origin, including the fault or negligence or
strict liability of the other party or their agents, servants or employees.
Because this Article will preclude the assignment of any claim mentioned in it
by way of subrogation or otherwise to any insurance company or any other person,
Landlord and Tenant agree immediately to give to each insurance company which
has issued to it policies of insurance covering all risk of direct physical
loss, written notice of the
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terms of the mutual waivers contained in this Article, and, if required, to have
the insurance policies properly endorsed to prevent the invalidation of such
insurance coverage by reason of these waivers.
ARTICLE 7. Personal Property and Fixtures; Tenant's Right of Removal.
Trade fixtures, equipment, machinery or other personal property installed
in or attached to the Demised Premises by or at the expense of Tenant shall
remain the property of Tenant. Tenant shall have the right at any time to remove
any or all such trade fixtures, equipment, machinery and other property,
provided such removal does not cause irreparable or unreasonable harm to the
Demised Premises. In any event Tenant, at its expense, shall repair any and all
damage caused by such removal.
ARTICLE 8. Signs.
Tenant may, at its expense, utilize or remove any existing sign or install
new signs on the Demised Premises as may be reasonable and which shall not
damage or impair the attractiveness of the Demised Premises. Tenant shall be
entitled to remove any or all such signs at any time during the term of this
Lease, or within fifteen (15) calendar days after termination of this Lease,
provided such removal does not cause irreparable or unreasonable harm to the
Demised Premises. In any event Tenant, at its expense, shall repair any damage
caused by such removal.
ARTICLE 9. Damage by Fire or Other Casualty.
9.1. Substantial or Total Destruction. If the improvements erected upon the
Demised Premises are totally destroyed by fire or other casualty, or thirty
percent (30%) or more of the value of the improvements is so destroyed, then:
9.1.1. Either party may terminate this Lease by written notice to the other
party within thirty (30) calendar days after such destruction.
9.1.2. If neither party terminates this Lease pursuant to the above clause
(a), Landlord shall repair and restore such improvements as soon as is
reasonably practicable to substantially the same condition as they were in
immediately prior to such destruction. Landlord shall be entitled to use the
proceeds of all applicable casualty insurance on the Demised Premises for
purposes of such repair and restoration. In the
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event the insurance funds are insufficient to cover the costs of the repairs or
Landlord does not elect to use all or a portion of such proceeds, the excess
costs shall be borne by Landlord.
9.1.3. No rent (including but not limited to taxes and other items of
additional rent) shall be payable from the date of such destruction to the date
of completion of such repair or restoration.
9.1.4. If Landlord has not commenced such repair or restoration within
sixty (60) calendar days after the date of such destruction, or has not
completed such repair or restoration within a reasonable time thereafter, which
in any event shall not exceed one hundred twenty (120) calendar days from the
date of commencement of such repairs, Tenant may terminate this Lease by notice
to Landlord at any time prior to completion of such repair or restoration.
9.2. Partial Destruction. If the improvements erected upon the Demised
Premises are damaged by fire or other casualty, but less than thirty percent
(30%) of the value of the improvements is so destroyed, then:
9.2.1. Landlord shall repair and restore such improvements as soon as it is
reasonably practicable to substantially the same condition as they were in
immediately prior to such damage. Landlord shall be entitled to use the proceeds
of all applicable casualty insurance on the Demised Premises for purposes of
such repair or restoration. In the event the insurance funds are insufficient to
cover the costs of the repairs or Landlord does not elect to use all or a
portion of such proceeds, the excess costs shall be borne by Landlord.
9.2.2. There shall be a reduction in base rent payable from the date of
such destruction to the date of completion of such repair or restoration, which
reduction shall be equal to current base rent, multiplied by a fraction, the
numerator of which shall be the value of the improvements so destroyed and the
denominator of which shall be the value of improvements immediately prior to
such destruction.
9.2.3. If Landlord has not commenced such repair or restoration within
sixty (60) calendar days after the date of such damage, or has not completed
such repair or restoration within a reasonable time thereafter, which in any
event shall not exceed one hundred twenty (120) calendar days from the date of
commencement of such repairs, Tenant may terminate this Lease by notice to
Landlord at any time until completion of such repair or restoration.
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ARTICLE 10. Eminent Domain.
Landlord shall deliver to Tenant within ten (10) days after receipt thereof
any notice of a governmental entity's intent to exercise its power of eminent
domain with respect to all or a portion of the Demised Premises.
10.1. Substantial or Total Taking. In the event that all of the Demised
Premises are to be acquired by exercise of the power of eminent domain, or a
portion of the Demised Premises are to be so acquired and the remaining portion
of the Demised Premises cannot, in Tenant's judgment, reasonably be used by
Tenant for the general purposes for which it was used prior to such acquisition,
this Lease may be terminated by either party upon thirty (30) calendar days'
written notice to the other.
10.2. Partial Taking. In the event that a portion of the Demised Premises
is acquired by exercise of the power of eminent domain, and the remaining
portions of the Demised Premises can, in Tenant's judgment, reasonably be used
by Tenant for the same general purposes for which they were used prior to such
acquisition, or all or a portion of the Demised Premises are so acquired and
neither party exercises any right to terminate this Lease pursuant to Article
10.1, then this Lease shall remain in effect. If the Lease remains in effect,
there shall be a reduction in base rent payable from and after the date of such
acquisition, which reduction shall be equal to current base rent, multiplied by
a fraction, the numerator of which shall be the value of the improvements so
acquired and the denominator of which shall be the value of improvements
immediately prior to such acquisition.
10.3. Damages. Tenant will not participate in the condemnation proceedings,
and shall be entitled to no compensation or any right of action against the
Landlord for such damage or taking. All awards, damages and other compensation
paid by such authority on account of such condemnation shall belong to Landlord
and Tenant assigns to Landlord all rights to such awards, damages and
compensation. Tenant shall not make any claim against Landlord or the condemning
authority for any portion of such award, damages or compensation attributable to
damage to the Premises, value of the unexpired portion of the Lease Term, damage
to the purchase option, loss of profits or goodwill, or severance damages.
Nothing contained herein, however, shall prevent Tenant from pursuing a separate
claim against the authority for the value of furnishings and trade fixtures or
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leasehold improvements installed in the premises at Tenant's expense and for
relocation expenses, provided that such claim shall in no way diminish the
award, damages or compensation payable to Landlord in connection with such
condemnation.
ARTICLE 11. Default.
11.1. Tenant's Default. If Tenant defaults in the payment of any rent due
hereunder, and if after written notice from Landlord to Tenant such default
continues for a period of ten (10) calendar days; or if Tenant defaults in any
other covenant or agreement to be performed by it under this Lease, and if after
written notice from Landlord to Tenant, such default continues for a period of
thirty (30) calendar days unless the default is of a nature that cannot be cured
within thirty (30) days in which case Tenant shall not be in default so long as
Tenant has commenced the cure of such default within such thirty (30) day period
and diligently continues such cure to completion; or if the leasehold interest
of Tenant is taken on execution or by other process of law; or if any proceeding
is commenced by or against Tenant seeking any reorganization, arrangement,
composition, liquidation or other similar relief under any applicable federal or
state bankruptcy or other similar statute and such proceeding is not dismissed
within sixty (60) calendar days after its commencement (except that
non-dismissal of any such proceeding shall not be a default so long as all of
Tenant's covenants and obligations under this Lease are being performed by or on
behalf of Tenant); then, and in any of such cases, Landlord may immediately or
at any time thereafter so long as such default continues, upon ten (10) days
written notice, either terminate this Lease and xxx Tenant for damages for
breach of Tenant's obligations to Landlord under this Lease or, without
terminating this Lease, enter into and upon the Demised Premises or any part
thereof and take possession of the same fully and absolutely without such
re-entry working a forfeiture of the rents to be paid and the obligations to be
performed by Tenant for the full term of this Lease, and Landlord may, at its
election, lease or sublet the Demised Premises or any part thereof on such terms
and conditions, for such rents, and for such time as Landlord may elect, and
after crediting the rent actually collected by Landlord from such reletting
against the rentals stipulated to be paid under this Lease by Tenant, collect
from Tenant any balance remaining due on the rent reserved under this Lease.
11.2. Landlord's Default. If Landlord defaults in any covenant or agreement
to be performed by it under this Lease and if after written notice from Tenant
to Landlord, default continues for a period of thirty (30) calendar days unless
the
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default is of a nature that cannot be cured within thirty (30) days in which
case Landlord shall not be in default so long as Landlord has commenced the cure
of such default within such thirty (30) day period and diligently continues such
cure to completion, Tenant may immediately terminate this Lease upon written
notice to Landlord, or Tenant may provide written notice of its intent to cure
such default. If Tenant gives notice of its intent to cure, Tenant shall provide
to Landlord support for any applicable cost, including a written repair estimate
or governmental notice, as applicable. If Landlord disputes any such estimate,
Tenant shall obtain a second estimate from a third party agreeable to Landlord
and Tenant (the "Third Party Estimate"). Landlord and Tenant agree to be bound
by such Third Party Estimate, and if Tenant cures such default prior to Landlord
curing such default, Tenant may deduct the amount of the Third Party Estimate,
including interest at the rate of one percent (1%) per month on such amount,
from rentals due or to become due to Landlord.
11.3. Default Notices. Any default notice given pursuant to this Article
shall specify the nature and extent of the default.
ARTICLE 12. Funds Expended by Landlord.
12.1. Repayment by Tenant. In the event Tenant shall fail to pay any sum
required to be paid by it under the term of this Lease, including (without
limitation) insurance premiums, Landlord shall be entitled to pay such sums.
Tenant shall repay the same to Landlord upon demand, together with all interest,
costs and damages, or Landlord, at its' option, may add any sum so paid as
additional rent to the next installment of rent coming due, but payment by
Landlord of any such sum shall not be deemed to waive or release the default in
payment thereof by Tenant, or the right of Landlord to recover possession, at
its election, of the Demised Premises by reason of Tenant's default.
ARTICLE 13. Use of Demised Premises.
13.1. Tenant shall not use the Demised Premises in any manner contrary to
the applicable zoning, health, fire or safety regulations, ordinances or
statutes, civil or criminal, (whether now in effect or hereafter enacted) of the
City of Manassas or the Commonwealth of Virginia.
13.2. Environmental Matters.
13.2.1. Hazardous Materials. Landlord represents and warrants that no
Hazardous Materials (as hereinafter defined) are
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presently deposited, stored or otherwise located on, under or in the Demised
Premises. Tenant covenants that it shall not deposit, store or otherwise locate
Hazardous Materials on, under or in the Demised Premises; provided, however,
Tenant may store, handle and use the following chemicals, substances or
materials if they are used, stored, handled and disposed of in material
compliance with Environmental Requirements: (a) chemicals, substances or
materials routinely used in office areas, (b) janitorial supplies, cleaning
fluids or other chemicals, substances or materials reasonably necessary for the
day-to-day operation or maintenance of the Demised Premises by Tenant, (c)
chemicals, substances or materials reasonably necessary for the construction or
repair of improvements on the Demised Premises, (d) pesticides, fertilizers and
other chemicals, substances or materials reasonably used for agricultural,
horticultural, landscaping or pest control purposes on the Demised Premises, (e)
gasoline, motor oil or other chemicals, substances or materials resulting from
the operation, parking, cleaning and routine maintenance of motor vehicles and
equipment on the Demised Premises, (f) petroleum products stored in above ground
fuel storage tanks installed and maintained by Tenant or (g) chemicals,
substances or materials stored on the Demised Premises or included in products
stored on the Demised Premises for sale to customers typically used in the
ordinary course of the Tenant's business.
13.2.2. Notice of Violations. Any notice given by Landlord pursuant to this
Article 13 shall specify such violations to the extent known by Landlord at the
time of the giving of said Notice. All notices shall comply with the
requirements of Article 23 of this Lease.
13.2.3. Underground Inspection and Storage Tanks. Except as set forth in
Article 5.5, Tenant shall locate no underground improvement on the Demised
Premises. Notwithstanding any other provision of this Lease, Tenant shall not
locate an underground gas, diesel or oil storage tank on or under the Demised
Premises.
13.2.4. Definitions. For the purposes of this Agreement:
(i) "Hazardous Materials"' means any substance: (A) the presence of
which requires investigation or remediation under any applicable federal,
state or local statute, regulation, ordinance, order, action or policy or
common law; (B) that is defined as a "hazardous waste" or "hazardous
substance" under any applicable federal, state or local statute, regulation
15
or ordinance, including without limitation any statute referred to in
Article 13.2.4(iv) hereof; (C) that is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous and is regulated by any applicable governmental authority,
agency, department, commission, board, agency or instrumentality; (D) the
presence of which on the Demised Premises causes or threatens to cause a
nuisance upon the Demised Premises or to adjacent properties or poses or
threatens to pose a hazard to the health or safety of persons on or about
the Demised Premises; (E) the presence of which on adjacent properties
could constitute a trespass by Landlord, or by Tenant after occupancy: (F)
that contains gasoline, diesel fuel or other petroleum hydrocarbons in any
unconfined manner; or (G) that contains PCBs, asbestos, or urea
formaldehyde foam insulation.
(ii) "Environmental Damages Caused by Tenant" shall mean all claims,
judgments, damages, losses, costs, penalties, fines, liabilities (including
strict liability), encumbrances, liens, costs and expenses of investigation
and defense of any claim, whether or not such claim is ultimately defeated,
and of any good faith settlement or judgment, of whatever kind or nature,
contingent or otherwise, matured or unmatured, foreseeable or
unforeseeable, including without limitation reasonable attorneys' fees and
disbursements and consultants' fees, any of which are incurred at any time
as a result of the existence on or after the Commencement Date of Hazardous
Materials which Tenant has deposited, stored or otherwise located on, under
or in the Demised Premises, or the migration or threatened migration from
the Demised Premises of Hazardous Materials which Tenant has deposited,
stored or otherwise located on, under or in the Demised Premises, the
transport or disposal of any Hazardous Materials which Tenant has
deposited, stored or otherwise located on, under or in the Demised Premises
from the Demised Premises, or the existence of a
16
violation of Environmental Requirements pertaining to the business of
Tenant, and including without limitation:
(A) damages for personal injury, or injury to property or natural
resources occurring on or off the Demised Premises, including,
without limitation, lost profits, consequential damages, the cost
of demolition and rebuilding of any improvements on Demised
Premises, interest and penalties including but not limited to
claims brought by or on behalf of employees of the business of
the Tenant or of the Landlord;
(B) reasonable fees incurred for the services of attorneys,
consultants, contractors, experts, laboratories and all other
costs, including without limitation costs for material and
equipment, incurred in connection with the investigation or
remediation of such Hazardous Materials or violation of
Environmental Requirements including, but not limited to, the
preparation of any feasibility studies, or reports or the
performance of any cleanup, remedial, removal, response,
abatement, containment, closure, restoration, reclamation or
monitoring work required by any federal, state or local
governmental agency or political subdivision, or reasonably
necessary to make full economic use of the Demised Premises or
any other property or otherwise expended in connection with such
conditions, and including without limitation any reasonable
attorneys' fees, costs, and expenses incurred in enforcing this
Agreement or collecting any sums due hereunder;
(C) liability to any third person or governmental agency to indemnify
such person or agency for costs expended in connection with the
items referenced in subparagraph (B) herein; and
17
(D) diminution in the value of the interest of Landlord in the
Demised Premises and damages for the restriction on the use of or
adverse impact on the usable space or of any amenity of the
Demised Premises.
(iii) "Environmental Damages Caused by Landlord" shall mean all
claims, judgments, damages, losses, costs, penalties, fines, liabilities
(including strict liability), encumbrances, liens, costs and expenses of
investigation and defense of any claim, whether or not such claim is
ultimately defeated, and of any good faith settlement or judgment, of
whatever kind or nature, contingent or otherwise, matured or unmatured,
foreseeable or unforeseeable, including without limitation reasonable
attorneys' fees and disbursements and consultants' fees, any of which are
incurred at any time as a result of the existence of Hazardous Materials
upon or beneath the Demised Premises or migrating or threatening to migrate
to or from the Demised Premises, the transport or disposal of any Hazardous
Materials to or from the Demised Premises, or the existence of a violation
of Environmental Requirements pertaining to the Demised Premises,
regardless of whether the existence of such Hazardous Materials, such
disposal or transport, or such violation of Environmental Requirements
arose prior to the present ownership or operation of the Demised Premises,
but expressly excluding all Environmental Damages Caused by Tenant, and
otherwise including without limitation:
(A) damages for personal injury, or injury to property or natural
resources occurring on or off the Demised Premises, including,
without limitation, lost profits, consequential damages, the cost
of demolition and rebuilding of any improvements on Demised
Premises, interest and penalties including but not limited to
claims brought by or on behalf of employees of the business;
(B) reasonable fees incurred for the services of attorneys,
consultants, contractors, experts, laboratories and all other
costs, including without limitation costs for material and
equipment, incurred in connection with the investigation or
remediation of such Hazardous Materials or violation of
18
Environmental Requirements including, but not limited to, the
preparation of any feasibility studies or reports or the
performance of any cleanup, remedial, removal, response,
abatement, containment, closure, restoration, reclamation or
monitoring work required by any federal, state or local
governmental agency or political subdivision, or reasonably
necessary to make full economic use of the Demised Premises or
any other property or otherwise expended in connection with such
conditions, and including without limitation any attorneys' fees,
costs and expenses incurred in enforcing this Agreement or
collecting any sums due hereunder;
(C) liability to any third person or governmental agency to indemnify
such person or agency for costs expended in connection with the
items referenced in subparagraph (B) herein; and
(D) diminution in the value of the leasehold interest of Tenant in
the Demised Premises and damages for the restriction on the use
of or adverse impact on the usable space or of any amenity of the
Demised Premises.
(iv) "Environmental Requirements" shall mean all applicable present
statutes, regulations, rules, ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations and similar items, of all governmental
agencies, departments, commissions, boards, bureaus or instrumentalities of
the United States, the states and political subdivisions thereof and all
applicable judicial and administrative and regulatory decrees, judgments
and orders relating to the protection of human health or the environment,
including, without limitation: all requirements pertaining to emissions,
discharges, releases or threatened releases of any Hazardous Materials into
the air, surface water, groundwater or land, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of any Hazardous Materials: all requirements
pertaining to the protection of the health and safety of employees or the
public (including, without limitation,
19
all requirements under the Occupational Safety and Health Act and all rules
and regulations promulgated thereunder); all requirements pertaining to the
reclamation or restoration of land; and all requirements pertaining to
underground storage tanks.
(v) "Tenant" for purposes of this Article shall include their
respective invitees, licensees and customers.
13.2.5. Remediation. Tenant shall indemnify and hold Landlord harmless from
any and all Environmental Damages Caused by Tenant and the Tenant shall provide
such soil or water remediation as the appropriate governmental authorities may
require in the event of any Environmental Damages Caused by Tenant or of
Tenant's violation of Article 13.2. Landlord shall hold Tenant harmless from any
and all Environmental Damages Caused by Landlord and the Landlord shall provide
such soil or water remediation as the appropriate governmental authorities may
require in the event of any Environmental Damages Caused by Landlord or of
Landlord's violation of Article 13.2.
ARTICLE 14. Landlord's Warranties and Representations.
Landlord hereby covenants, warrants and represents to Tenant as follows:
14.1. that Landlord is the sole owner of the Demised Premises in fee simple
absolute, free and clear of all liens or security interests other than the
parties holding security interests in the Demised Property and disclosed on
Exhibit C attached hereto (if any) and has full right and authority to enter
this Lease for the full term hereof, including any renewal term;
14.2. that Landlord will put Tenant in possession of the Demised Premises
on the Possession Date (as defined below);
14.3. that Tenant, on paying the rental and performing the covenants herein
agreed by it to be performed, shall and may peaceably and quietly have, hold,
occupy and enjoy the Demised Premises for the term of this Lease, including all
renewal terms; and
14.4. that there are no environmental liens against the Demised Premises.
20
ARTICLE 15. Waiver of Landlord's Lien.
Landlord shall not have, and hereby expressly waives, any lien granted to
Landlord, whether statutory or otherwise, upon Tenant's personal property,
fixtures, inventory, or stock-in- trade on the Demised Premises for non-payment
of rent, default by Tenant, or any other reason whatsoever.
ARTICLE 16. Subordination, Nondisturbance and Attornment.
Provided the mortgagee or beneficiary enters into a valid and effective
nondisturbance and attornment agreement with Tenant in form and substance
reasonably acceptable to Tenant, which among other things shall provide that (a)
Tenant shall not be named or joined in any action or proceeding to foreclose or
enforce a mortgage or deed of trust, and in the event of foreclosure or other
action taken under the mortgage or deed of trust by the holder thereof, this
Lease and the rights of Tenant hereunder shall not be disturbed but shall
continue in full force and effect so long as Tenant shall not be in default
hereunder, and (b) such holder shall permit insurance proceeds and condemnation
proceeds to be used for any restoration and repair in the manner provided for
this Lease, Tenant shall subordinate this Lease to the lien of any mortgage of
deed of trust upon the Demised Premises. In the event of delivery of such
agreement, this provision shall be self-operative. If the holder of the mortgage
or deed of trust or any person claiming under him shall succeed to the interest
of Landlord in this Lease, Tenant shall recognize such holder or person as its
Landlord, provided that such holder or person shall assume all of the
obligations of Landlord hereunder.
ARTICLE 17. Inspection.
17.1. During Lease Term. During the term of this Lease, including any
Renewal Term, Landlord shall have the right from time to time to conduct further
inspections of the Demised Premises, at Landlord's sole cost and expense,
including without limitation environmental sampling of soil, surface water,
ground water and building materials, in order to assess the condition of the
Demised Premises. Landlord's inspections shall be conducted upon reasonable
notice and at reasonable times. Landlord shall repair any damage caused by or a
result of said inspections, provided that Landlord's obligation is strictly
limited to repairs made necessary by the act(s) of inspection.
17.2. Tenant's Obligations. Tenant shall repair any damage to the Demised
Premises caused by Tenant or its consultant discovered by or through any
inspection contemplated by this Article 17 and shall not cause any liens to be
filed against the
21
Demised Premises as a result of such damage. A breach by Tenant of this
provision (17.2.) shall be deemed by Landlord to be a material breach of this
Lease Agreement.
ARTICLE 18. Indemnity.
18.1. Indemnification by Landlord. Notwithstanding any other Article of
this Lease, Landlord shall and hereby does agree to indemnify, protect, defend
and hold harmless Tenant and its partners, directors, officers, employees,
shareholders, lenders, agents, contractors, and each of their respective
successors and assigns (individually and collectively "Indemnitees") from and
against any and all claims, judgments, damages, penalties, fines, taxes, costs,
liabilities, losses, and expenses arising at any time during or after the term
of this Lease as a result of or in connection with the following, regardless of
potential strict liability of Tenant or the other Indemnitees therefor:
Landlord's breach of any representation, covenant or warranty contained in this
Agreement, other than to the extent covered under Article 13.2. This obligation
by Landlord to indemnify, protect, defend, and hold harmless Indemnitees
includes, without limitation: all foreseeable and unforeseeable consequential
damages; damages for the loss or restriction on use of rentable or useable space
or of any amenity of the Demised Premises: all sums paid in settlement of
claims; reasonable attorneys' fees; and litigation, arbitration and
administrative proceeding costs.
18.2. Indemnification by Tenant. Notwithstanding any other Article of this
Lease, Tenant shall and hereby does agree to indemnify, protect, defend and hold
harmless Landlord and its partners, directors, officers, employees,
shareholders, lenders, agents, contractors, and each of their respective
successors and assigns (individually and collectively "Landlord Indemnitee~")
from and against any and all claims, judgments, damages, penalties, fines,
taxes, costs, liabilities, losses, and expenses arising at any time during or
after the term of this Lease as a result of or in connection with the following,
regardless of potential strict liability of Landlord or the other Landlord
Indemnitees therefore; Tenant's breach of any representation, covenant or
warranty contained in this Agreement other than as covered by Article 13.2. This
obligation by Tenant to indemnify, protect, defend, and hold harmless Landlord's
Indemnitees includes, without limitation: all foreseeable and unforeseeable
consequential damages; damages for the loss or restriction on use of rentable or
useable space or of any amenity of the Demised Premises; all sums paid in
settlement of claims; reasonable attorneys fees; and litigation, arbitration and
administrative proceeding costs.
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18.3. Survival. The obligations under this Article 18 shall survive the
expiration or termination of the Lease for any reason whatsoever.
ARTICLE 19. Tender of Possession and Possession Date.
19.1. Notwithstanding anything to the contrary contained herein, Landlord
and Tenant agree Tenant shall take (or be deemed to take) and Landlord shall
tender to Tenant, possession of the Demised Premises, on the date following the
issuance of an Occupancy Permit. Landlord shall give Tenant no less than five
(5) days notice of the date upon which Landlord will tender possession.
Construction of the Demised Premises is projected to be completed on or about
September 30th, 2000.
19.2. In the event that Landlord has not tendered possession of the Demised
Premise by December 31, 2000, Tenant shall have the right to terminate this
Lease upon written notice delivered to Landlord of Tenant's intent to terminate
given not less than 10 days prior to its intended termination date.
19.3. Upon either parties request, a "Commencement Date Agreement" shall be
prepared by Landlord and executed by both parties which shall set forth the
exact commencement date and the date of expiration of the initial term. Said
commencement date agreement shall become an additional addendum to the Lease
Agreement dated March 1 , 2000, and shall be incorporated fully into this Lease
Agreement notwithstanding the provisions of Article 24.1.
19.4. Tenant shall be given vacant possession of the Demised Premises in
broom-clean condition, free of rubbish and debris, and free of tenants,
tenancies and parties in possession.
ARTICLE 20. Estoppel Certificates.
At any time and from time to time Landlord and Tenant each shall, within 15
days after receipt of a request in writing, from the other, execute, acknowledge
and deliver to the other or to any person designated by the other, a statement
in writing certifying that the Lease is unmodified and is in full force and
effect, or if there have been modifications, that the Lease is in full force and
effect as modified (stating the modifications); that the other party is not in
default in the performance of its covenants hereunder, or if there have been
such defaults, specifying the same; and the dates to which the rent and other
charges have been paid.
23
ARTICLE 21. Assignment and Subletting.
Tenant shall not assign this Lease or Sublet the whole or any portion of
the Demised Premises without the consent of Landlord, which consent shall not be
unreasonably withheld or delayed; except that such consent shall not be required
for any assignment or subletting to any person controlling, controlled by or
under common control with Tenant, or in connection with Tenant's sale of
substantially all of the assets of the business of Xxxxxxx.xxx, Inc., conducted
by it in the Demised Premises. This provision shall not be construed to require
Landlord's consent for any financing transaction in which Tenant grants to the
lender as collateral a security interest in the Lease or Tenant's property at
the Demised Premises; provided that Landlord shall not be required to permit any
lender to assume this Lease without Landlord's express written consent, which
consent may be conditioned upon lender's or lender's designate's assumption of
the liabilities of Tenant hereunder.
ARTICLE 22. Holding Over.
In the event that Tenant or anyone claiming under Tenant shall continue
occupancy of the Demised Premises after the expiration of the original term of
this Lease or any renewal or extension thereof without any agreement in writing
between Landlord and Tenant with respect thereto, such occupancy shall not be
deemed to extend or renew the term of this Lease, but such occupancy shall
continue as a tenancy from month to month upon the covenants, provisions and
conditions herein contained and at a monthly rent amount equal to one hundred
and fifty percent (150%) of the rent in effect during the last month of the term
of this Lease, as extended or renewed, prorated and payable for the period of
such occupancy.
ARTICLE 23. Notices.
23.1. Address for Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be deemed to
have been duly given if in writing and sent by certified mail, return receipt
requested, postage prepaid, or delivered by an overnight courier service, as
follows:
If to Tenant: Until date of occupancy to:
0000-X Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
24
After date of occupancy to:
00000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
With copy to: Xxxxxxx Xxxxx, Esq.
Hofheimer Gartlir & Gross, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
If to Landlord: Xxxxxxxxxx Investments II
00000 Xxxxxx Xxxx
Xxxxxxx, XX 00000-0000
With copy to: Xxxxxx X. Xxxxxxxxxx, Esq.
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Communications shall be deemed received upon the earlier of (a) actual
receipt or (b) three (3) days after deposit in the U.S. Mail in accordance with
the foregoing.
23.2. Change of Address. Landlord or Tenant may change the address to which
such communications are to be directed to it by giving notice to the other in
the manner provided in Article 24.1
ARTICLE 24. General.
24.1. Entire Agreement. This Lease sets forth the entire agreement and
understanding of the parties regarding the transactions contemplated hereby and
supersedes all prior agreements, arrangements and understandings relating to the
subject matter hereof, except that the parties hereto may provide by separate
instrument (i) their agreement regarding Tenant's build-out and fixtures
construction, final plans and specifications, work change procedure, and
correction procedures for work defect(s) and (ii) their agreement regarding
lease commencement as provided in Article 2.
24.2. Binding Agreement. All of the terms, covenants, representations,
warranties and conditions of this Lease shall be binding upon, and inure to the
benefit of and be enforceable by, the parties hereto and their respective
permitted successors and assigns.
24.3. Amendments. This Lease may be amended only by a written instrument,
duly executed by Landlord and Tenant, which specifically refers to this Lease
and states that it amends this Lease.
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24.4. Waiver. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. No waiver by any party of any condition, or of
any breach of any term, covenant, representation or warranty, contained in this
Lease, in any one or more instances, shall be deemed to be or construed as a
further or continuing waiver of any such condition or breach, or a waiver of any
other condition or of any breach of any other term, covenant, representation or
warranty.
24.5. Headings. The article headings contained in this Lease are for
convenient reference only, and shall not in any way affect the meaning of
interpretation of this Lease.
24.6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Virginia, without regard to the
conflicts of laws principles thereof.
24.7. Force Majeure. Neither Landlord nor Tenant shall be required to
perform any non-monetary term, condition, or covenant in this Lease so long as
such performance is delayed or prevented by force majeure, which shall mean acts
of God, strikes, lockouts, material or labor restrictions by any governmental
authority, civil riot, floods, and any other cause not reasonably within the
control of Landlord or Tenant and which by the exercise of due diligence
Landlord or Tenant is unable, wholly or in part to prevent or overcome.
24.8. Time of Essence. Time is expressly declared and agreed to be of the
essence in this Lease with respect to any and all terms, covenants, conditions,
agreements, provisions, options, rights of termination and all other matters
relating to this Lease.
24.9. Cumulative Effect. The rights and remedies by this Lease are
cumulative and the use of any one right or remedy by either party shall not
preclude or waive its right to use any or all other remedies. Said rights and
remedies are given in addition to any other rights the parties may have by law,
statute, ordinance or otherwise.
24.10. Severability. In case of any one or more of the provisions contained
in this Lease shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not effect any
26
other provision hereof and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
ARTICLE 25. Authority.
Except as otherwise provided herein, each individual executing this Lease
in a representative capacity warrants and represents to the other party that he
has all requisite authority to execute the same on behalf of the entity
represented, in the capacity in which he has executed the same. Upon request by
either party to the other, any party signing on behalf of a corporation will
provide to the other a Certificate of Good Standing of the corporation and a
certified copy of a Corporate Resolution authorizing signature of this document
by the individuals signing the same on behalf of the corporation. Any parties
signing this Lease as trustee or personal representative of one or more of the
record owners thereof, shall provide evidence reasonably satisfactory to the
other party that he is authorized to bind the record owners of the Demised
Premises (including, with respect to a trust, a certified copy of the trust
agreement and all amendments thereto and, with respect to a personal
representative of a decedent's estate, a copy certified to be true and correct
of a decedent's last will and testament and a certified copy of the letters of
administration of the probate court appointing the personal representative).
Each party signing on behalf of a partnership or limited partnership shall
furnish a certified copy of the Partnership Agreement or the Certificate of
Limited Partnership. Where a general or limited partnership has more than one
general partner, evidence shall be provided to the other party on request
evidencing that the general partner executing this Lease, or any document
pursuant to this Lease, has authority to bind the partnership. Such evidence
shall be deemed satisfactory if it would be sufficient to a title insurance
company authorized to do business in the state in which the Demised Premises are
located, for the purpose of issuing a policy of title insurance insuring the
leasehold interest created by this Lease.
ARTICLE 26. Attorneys' Fees.
In the event of any litigation involving the parties to this Lease to
enforce any provision of this Lease, to enforce any remedy available upon
default under this Lease, or seeking a declaration of the rights of either party
under this Lease, the prevailing party shall be entitled to recover from the
other such attorneys' fees and costs as may be reasonably incurred, including
the costs of reasonable investigation, preparation and
27
professional or expert consultation incurred by reason of such litigation. All
other attorneys' fees and costs relating to this Lease and the transactions
contemplated hereby shall be borne by the party incurring the same.
ARTICLE 27. Brokerage Commission.
Landlord and Tenant do hereby warrant and represent to each other that all
brokerage fees relating to this Lease shall be settled by previous agreements
between Landlord and Selling Broker.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year written adjacent to the signature of the parties or their duly
authorized representative.
LANDLORD:
XXXXXXXXXX INVESTMENTS II
a Virginia general partnership
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: General Partner
Date: 3/1/00
TENANT:
ATTEST: XXXXXXX.XXX, INC.,
a Delaware corporation
/s/ Xxxx X. Xxxxx By: /s/Xxxxxxx X. Xxxxxxxx
---------------- --------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
Date: 3/3/00
Exhibit A - Demised Premises
Exhibit C - Lien-Holders of Landlord
28
EXHIBIT A
LEGAL DESCRIPTION
All that certain lot or parcel of land and all improvements thereton located in
the City of Manassas, Virginia, being more particularly described as follows:
Xxx 0X, Xxxxxxx Xxxx Xxxxxxxx xxx Xxxxxxxxxx Center, as dedicated, subdivided
and platted by Deed of subdivision recorded in Deed Book 2495 at Page 1170 of
the land records of Prince Xxxxxxx County, Virginia.
And being the same property conveyed to Xxxxxxxxxx Investments II, a Virginia
general partnership, by Deed dated March 1, 1999, and recorded March 2, 1999, at
Deed Book 2707, Page 1025, among the land records of Prince Xxxxxxx County,
Virginia.
EXHIBIT C
CURRENT MORTGAGEES OR LIENHOLDERS
None
