XXXXXXX SQUARE OFFICE PARK
DEED OF LEASE
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THIS DEED OF LEASE (the "Lease") is made as of 22 September, 2004, by
and between LJ HOLDING, L.C., a Virginia limited liability com any with an
office at 00000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxxxx, Xxxxxxxx 00000
("Landlord"), and EOIR TECHNOLOGIES, INC. X.X. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxxx
00000, ("Tenant").
WITNESSETH THAT:
In consideration of the mutual covenants, promises and agreements
herein contained, Landlord hereby lets and demises to Tenant, and Tenant hereby
leases from Landlord all those certain premises comprising Building No. 2 (the
"Building"), in the Xxxxxxx Square Office Park (the "Office Park"), as the
Building and Office Park are shown on a layout plan attached hereto as Exhibit
"A," and known as 0000 Xxxx Xxxxx, Xxxxxxxxxxxxxx, Xxxxxxxxxxxx Xxxxxx, Xxxxxxxx
00000, containing approximately 10,000.00 square feet (the "Premises").
THE PARTIES DO HEREBY AGREE AND COVENANT AS FOLLOWS:
1. COMMENCEMENT DATE/LEASE TERM/EXTENSION/OCCUPANCY.
A. The date on which the latter of Landlord or Tenant shall ratify this
Lease shall be the Commencement Date. The Premises are accepted by Tenant in an
"as is" condition.
B. The Lease shall commence on the Commencement Date and run until
midnight October 31, 2009 (the "Lease Term"). Notwithstanding the aforesaid,
Tenant shall have the rights set forth in Paragraph 42 hereof.
C. Provided Tenant is not in default at the time of exercise, Tenant
shall have the right to enter into an extension of the Lease for an additional
three (3) year term at a mutually acceptable rental rate; provided, however, in
no event shall the rental rate for any extension period be less than the rental
rate paid in the last year of the original Lease. The extension option shall be
exercised by Notice to Landlord given a minimum of ninety (90) days prior to the
expiration of the original Lease Term.
D. Tenant may not enter or occupy the Premises prior to the
Commencement Date without Landlord's express written consent. Occupancy of the
Premises by Tenant shall be conclusive evidence that Tenant has accepted the
Premises as suitable in its then current condition.
2. BASE RENT. Commencing on November 1, 2004, Tenant shall pay to Landlord an
annual base rent ("Base Rent") of One Hundred Fifty Thousand and 00/100 Dollars
($150,000.00) payable in equal monthly installments of Twelve Thousand Five
Hundred and 00/100 Dollars ($12,500.00). The installments of Base Rent shall be
paid on the first day of each calendar month at the place designated by
Landlord.
3. BASE RENT ESCALATION. Commencing on the first day of November, 2005, and on
the first day of each November thereafter during the Lease Term (each of such
dates being herein referred to as an "Adjustment Date"), the Base Rent in effect
immediately preceding the Adjustment Date shall be increased by an amount equal
to the product of the Base Rent in effect immediately proceeding the Adjustment
Date then at hand (which Base Rent shall be annualized if the year in which the
Commencement Date occurs is a partial year, and which Base Rent shall not
reflect any rental abatement or deferral) multiplied by four percent (4%). Such
computation shall constitute the Base Rent, as adjusted, payable in equal
monthly installments, commencing on the Adjustment Date then at hand and
continuing on the first day of each month thereafter until the next Adjustment
Date or the end of the Lease Term, whichever is applicable.
4. MAINTENANCE/OPERATING EXPENSES/UTILITIES/TAXES. Tenant shall be responsible
for all maintenance and repairs to the interior of the Premises. The HVAC,
plumbing and electric systems of the Premises shall be maintained by the Tenant
with qualified and licensed contractors. Repairs or replacement of major system
components of the existing HVAC, plumbing or electric system shall be the
responsibility of the Tenant up to a maximum expense of Three Thousand and
00/100 Dollars ($3,000.00) annually. The Landlord shall be responsible for the
cost of repairs or major component replacement which exceeds $3,000.00 annually,
and in such event, Landlord may elect to coordinate and contract for such work.
Should Landlord not elect to contract for such work, Tenant shall request the
Landlord's written approval to incur costs for such repairs, which shall not be
unreasonably withheld. The Tenant shall submit documentation of incurred repair
costs for reimbursement by the Landlord. Reimbursement by the Landlord to the
Tenant for previously approved repair costs beyond the $3,000.00 shall be made
within thirty (30) days of written request therefore.
Tenant shall be responsible for all janitorial services with respect to
the interior of the Premises, including such routine matters as light bulb
replacement and provisions of supplies for restroom and kitchen facilities, if
any. Tenant shall contract with a reputable supplier of such janitorial
services, with the scope of work for such supplier to be consistent with
janitorial services typically supplied to office tenants. Tenant shall keep the
Premises neat, clean and sanitary and shall not itself and shall not permit any
person to destroy, deface, damage, impair or remove any part of Premises or the
facilities or appurtenances thereto.
Tenant, at its sole cost and expense, shall arrange for and pay all
charges when due for water, gas, electricity, heat, cable and any other utility
services provided to, used by or consumed on the Premises. Tenant hereby
covenants and agrees to indemnify and save Landlord harmless from and against
any and all claims, losses and expenses arising from the installation and
maintenance of such utility services and from all costs for any and all utility
services provided to, used by or consumed on the Premises. Tenant shall pay its
Pro Rata Share of all utilities serving the common areas of the Business Park or
the Building generally including electric, water and sewer, gas, heat, cable and
any other utility services ("Project Utilities"), which Project Utilities are
part of the Operating Expenses.
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Landlord shall be responsible for maintenance and repairs to the roof,
foundation, all structural components and the exterior of the Building and the
common areas of the Building and Office Park. Landlord shall be responsible for
the payment of operating expenses, taxes and the insurance to be maintained by
Landlord (as distinguished from insurance to be maintained by Tenant, which
Tenant insurance shall be paid for by Tenant).
5. PAYMENT/ADDITIONAL RENT. All sums of money or charges required to be paid by
Tenant under this Lease other than Base Rent shall be deemed Additional Rent
hereunder and all remedies applicable to the non-payment of Base Rent shall be
applicable thereto. Additional Rent shall accrue commencing on the Commencement
Date Hereof. All Base Rent and Additional Rent (collectively "Rent") shall be
paid without prior notice or demand therefor as to Base Rent and within ten (10)
days of written notice as to Additional Rent (unless tenant has previously been
given a schedule of Additional Rent and due dates therefore, in which case no
notice will be required therefore), and without any counter-claim, set-off,
deduction, recoupment, credit or defense whatsoever, it being understood and
agreed that Tenant's covenant to pay the Rent is hereby deemed to be, and shall
be, independent of the obligations of Landlord hereunder. All payments shall be
applied to the earliest amount then due. No receipt and/or acceptance by
Landlord of any sums shall be deemed a waiver of any default by Tenant, with the
exception of the default identified in Paragraph 19E below, which may be cured
by payment of all Rent and Additional Rent that is currently then due. Landlord
shall have the right to require Rent payments to be made by money order, by
cashier's check or certified check. A late charge in the amount of five percent
(5 %) of any overdue amount shall be immediately due and owing by Tenant to
Landlord as Additional Rent for any payment delinquent seven (7) days after the
due date. Payment of the Rent and Additional Rent (including the 5 % late
charge) within fifteen 15 days of the original due date shall cure such default.
6. TENANT'S POSSESSION. Tenant's right of possession shall commence on the
Commencement Date.
7. SECURITY DEPOSIT. Upon execution of this Lease by Tenant, Tenant shall
deposit with Landlord the sum of Twelve Thousand Five Hundred and 00/100 Dollars
($12,500.00), to be held by Landlord as a security deposit ("Security Deposit"),
to insure the full and faithful performance by Tenant of each and every term,
provision, covenant and condition of this Lease. The Security Deposit or any
portion not so used, applied or retained shall be refunded to Tenant after
termination of the tenancy and delivery of possession of the Premises to
Landlord. Tenant shall not utilize the Security Deposit as rent. If any part of
the Security Deposit shall have been utilized by Landlord in accordance with the
terms hereof or applicable law, Tenant shall immediately deposit with Landlord a
sum equal to the amount so applied by Landlord so Landlord shall have the full
Security Deposit on hand at all times during the Term.
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8. INDEMNIFICATION. Tenant hereby waives all claims against Landlord for damage
to any property or injury to, or death of, any person in, upon, or about the
Premises, arising at any time and from any cause other than by reason of the
gross negligence or willful misconduct of Landlord, its agents, employees,
representatives, or contractors. Tenant shall, and hereby agrees to, indemnify
and hold Landlord harmless from any loss, cost, claim, expense and the like,
including damage to any property or injury to, or death of, any person relating
to the Premises or Tenant's failure to comply with the terms of this Lease
unless such damage is caused by the gross negligence or willful misconduct of
Landlord.
9. LEGAL REQUIREMENTS. Tenant shall, at its own expense, comply with all laws,
orders, ordinances and regulations of Federal, state and local authorities and
with directions of public rules, recommendations, requirements and regulations
respecting all matters of occupancy, condition or maintenance of the Premises.
The foregoing shall include Tenant's compliance with the Americans with
Disabilities Act of 1990, U.S.C. ss. 12101 et sec. as amended from time to time
with regard to the interior improvements made by Tenant. Wherever the term
"Legal Requirements" appears in this Lease, such term shall be deemed to include
the foregoing requirements.
10. OFFICE PARK LAYOUT; OTHER TENANTS; SIGNAGE.
A. Landlord expressly reserves the right to reconfigure the layout of
the Office Park at any time, provided no such reconfiguration shall change the
layout of the Premises or, unless required to satisfy Legal Requirements,
materially and negatively impact access to the Building or the location of the
Building, without the Tenant's consent, which consent will not be unreasonably
withheld, conditioned or delayed. Landlord makes no express or implied
representation or warranty to Tenant with respect to the composition of the
other tenants in the Office Park.
B. Tenant's suite entry signage and Building signage, if any, shall be
provided by the Tenant at Tenant's expense, the exact location to be mutually
agreed upon by Landlord and Tenant and shall be in compliance with all local
governmental restrictions that apply.
11. INSPECTION AND REPAIR/ACCESS. Landlord, its agents or employees, and
mechanics authorized by Landlord shall and may, from time to time, at all
reasonable hours, enter the Premises to render services and make adjustments in
connection therewith, customary or necessary in the construction, remodeling, or
maintenance of the Premises and for all other proper purposes. Except in the
case of an emergency, Landlord shall give Tenant notice prior to entering the
Premises. Landlord shall have the right, upon reasonable notice to Tenant,
during the last six months of the Term to show the Premises to prospective
tenants, and at any time during the Term, to show the Premises to prospective
purchasers. Landlord agrees to use commercially reasonable efforts to minimize
interference with Tenant's business operations when entering the Premises. The
Tenant reserves the right to provide an escort to accompany the Landlord, its
authorized agents or employees, and mechanics while within the Premises.
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12. ALTERATIONS. Other than those alterations set forth on Exhibit B attached
hereto, which such alterations are hereby approved by Landlord (the "Approved
Alterations"), Tenant shall not make any alterations or additions to the
Premises without the prior written permission of Landlord, which permission
shall not be unreasonably withheld. Notwithstanding the foregoing, Tenant shall
have the right to make strictly decorative alterations to the Premises without
Landlord's prior written permission.
Landlord shall provide an allowance of up to Thirty-five Thousand and
00/100 Dollars ($35,000.00) toward the direct cost of the Approved Alterations
("Alteration Allowance"). Upon completion of the Approved Alterations, Tenant
shall provide to Landlord documentation and evidence as to the direct cost of
the Approved Alterations. Within thirty (30) days of receipt of said
documentation, Landlord shall reimburse Tenant the amount of said direct cost up
to the amount of the aforesaid Alteration Allowance.
13. REQUIRED ALTERATIONS. If at any time during the Term Landlord should be
required by any governmental authority to make repairs, alterations or additions
to the Premises occasioned by the use which Tenant makes of the Premises,
Landlord shall cause such repairs, alterations or additions to be made and
Tenant shall be solely responsible for all costs and expenses associated with
such repairs, alterations or additions.
14. MECHANIC'S LIENS. In the event any mechanic's lien is filed against the
Premises as a result of any services or labor provided, or materials furnished,
by or on Tenant's behalf, or claimed to have been provided by or on Tenant's
behalf, Tenant shall (i) immediately notify Landlord of such lien, and (ii)
within ten (10) calendar days after the filing of any such lien, discharge and
cancel such lien of record by payment or bonding in accordance with the laws of
the Commonwealth of Virginia, all at Tenant's sole cost and expense. Landlord
acknowledges and agrees that Tenant shall not be responsible for any mechanic's
liens arising in connection with the construction of the Improvements to be
performed by Landlord.
15. USES/EXCLUSIVITY. The Premises will be used solely for business office
purposes and for no other purpose without Landlord's consent, which consent will
not be unreasonably withheld if such additional use is consistent with the
operation of a first-class Office Park, is compatible with the other uses within
the Office Park, does not compete with any other use in the Office Park or
violate any other exclusive granted any other tenant in the Office Park. If any
governmental licenses or permits shall be required for the proper and lawful
conduct of Tenant's business on the Premises, then Tenant shall procure and
maintain same at Tenant's expense. Tenant will not use or allow the Premises to
be used for any disorder4y or unlawful purposes or in any manner offensive to
others.
16. PARKING AND COMMON FACILITIES., Tenant shall have the reasonable use, in
common with others, of the parking areas, roadways, means of ingress and egress
and service and common areas of the Office park, subject to Landlord's right to
designate reserved parking spaces for tenants and visitors and subject to
Landlord's adoption of reasonable rules and regulations. Landlord shall maintain
the common and parking areas in good condition consistent with a first-class
Office park.
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17. ASSIGNMENT/SUBLET. Tenant shall not assign this Lease or sublet the Premises
or any portion thereof, or transfer possession or occupancy thereof to any other
person or persons, or transfer any interest in the Lease or the Premises without
the prior written consent of Landlord which consent shall not be unreasonably
withheld, and provided that the use of the assignee or sublessee is permitted
pursuant to Paragraph 15 hereof. Landlord agrees to respond to any request as
expeditiously as possible and, in any event, to use good faith efforts to
respond within thirty (30) days of receipt of a request.
18. INSURANCE.
A. Tenant, at Tenant's sole cost and expense, shall obtain and maintain
in effect at all times during the Term, policies providing for primary insurance
coverage of the following types: Property Insurance (excluding the exterior and
structural components and common areas of the Building) and Liability Insurance
covering Tenant's activities in the Premises and common areas of the Building
and Office Park, and Tenant's Worker's Compensation Insurance. Tenant's
liability insurance shall be in the minimum amount of One Million Dollars
($1,000,000), combined single limit, written on an occurrence basis. All
insurance policies required to be maintained by Tenant shall be acceptable to
Landlord, in Landlord's sole discretion, and shall comply with Landlord's
requirements for the provisions of such policies, including, without limitation,
requirements regarding scope of coverage, limits of coverage, terms and
conditions of coverage, qualification of carriers, named insureds, notice of
cancellation provisions and waiver of subrogation rights.
B. Neither the issuance of any insurance policy required hereunder, nor
the minimum limits established by Landlord with respect to Tenant's insurance
coverage, shall be deemed to limit or restrict in any way Tenant's liability
arising under or out of this Lease. Tenant shall deliver to Landlord a duplicate
original or certified copy of each insurance policy required by Landlord,
together with evidence of payment of all applicable premiums. Tenant's insurance
shall specifically provide that unless Landlord has been given thirty (30) days'
prior written notice, such insurance policy shall not be canceled and shall
remain in full force and effect. Tenant shall not do or permit to be done any
act or thing in or upon the Premises which shall increase the rate or rates of
any insurance referred to hereinabove. If by reason of failure of Tenant to
comply with this provision, the rate or rates of any insurance coverage referred
to above shall at any time be higher than it otherwise would be, and if Landlord
is required to or has elected to obtain and maintain any such insurance
coverage, then Tenant shall reimburse Landlord on demand as Additional Rent for
such increased premium(s).
C. Insurance covering the exterior and structural components of the
Building and the common areas of the Building and Office Park shall be obtained
by Landlord, which insurance shall be in the amount of the replacement value of
such items.
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19. DEFAULTS.
A. If Tenant refuses to take possession of the Premises within sixty
(60) days after the Commencement Date;
B. If Tenant vacates or abandons the Premises and permits the same to
remain unoccupied and unattended, or removes or manifests an intent to remove,
not in the ordinary course of business, Tenant's goods or property out of the
Premises;
C. If any execution, levy, attachment or other process of law shall
occur upon Tenant's goods, fixtures or interests in the Premises and not be
stayed, set aside, vacated, released or rescinded, as applicable, within thirty
(30) days;
D. If Tenant violates the Lease by attempting to make an unpermitted
assignment, transfer or sublease;
E. If Tenant fails to pay any installment of rent when the same shall
become due and payable, and such failure shall continue for seven (7) days;
F. If Tenant fails to pay any installment of rent when the same shall
become due and payable, and such failure shall continue for seven (7) days;
G. If Tenant permits to be done anything which creates a lien upon the
leasehold or the Premises and fails to discharge or bond such lien as required
by the Lease;
H. If Tenant fails to maintain in force all policies of insurance
required by this Lease;
I. Landlord shall provide written notice to Tenant upon determining
that the Tenant is in default or otherwise fails to perform or observe the terms
of the Lease heretofore specifically mentioned or any other term of this Lease.
Tenant shall have thirty (30) days after written notice from Landlord to cure
such default unless the continuance of the default would cause Landlord to be in
default under a mortgage or any other agreement affecting the Premises;
J. If Tenant fails to perform any material non-monetary obligation
under this Lease two or more times within any twelve (12) month period,
notwithstanding any subsequent cure of such failure as provided in this
Paragraph 19;
K. If Tenant fails to provide Landlord with financial statements or
estoppel certificates within the time periods referenced in this Lease; or
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L. The Tenant, or any guarantor of Tenant's obligations hereunder, or
any permitted sublessee or assignee, being in financial difficulties as
evidenced by (1) its admitting in writing its inability to pay its debts
generally as they become due, or (2) its filing a petition in bankruptcy or for
reorganization or for the adoption of an arrangement under the Bankruptcy Code
or an answer or other pleading admitting the material allegations of such a
petition or seeking, consenting to or acquiescing in the relief provided for
under the Bankruptcy Code, or (3) its making an assignment of all or a
substantial part of its property for the benefit of its creditors, or (4) its
seeking or consenting to or acquiescing in the appointment of a receiver or
trustee for all or a substantial part of its property or of the Premises, or (5)
its being adjudicated a bankrupt or insolvent, or (6) the entry of a court order
without its consent, which order shall not be vacated, set aside or stayed
within thirty (30) days from the date of entry, appointing a receiver or trustee
for all or a substantial part of its property or approving a petition filed
against it for the effecting of an arrangement in bankruptcy or for a
reorganization pursuant to the Bankruptcy Code or for any other judicial
modification or alteration of the rights of creditors. For purposes hereof, the
term "Bankruptcy Code" shall mean Title 11 of the United States Bankruptcy Code
relating to Bankruptcy, as amended, or any other similar federal or state
statute
20. REMEDIES. Should a Default occur under this Lease, Landlord may pursue the
following:
A. Landlord shall have the right, by written notice to Tenant, to
declare this Lease terminated and the Lease Term ended and retain or receive the
Security Deposit (as defined herein), in which event (i) Tenant shall vacate and
surrender the Premises; (ii) Tenant shall immediately pay to Landlord the sum of
(aa) all rent accrued through the date of termination or recovery of possession
by Landlord, whichever is later (including any deferred or abated rent) ; plus
(bb) the actual loss suffered by Landlord. The failure of Landlord to relet the
Premises shall not affect Tenant's liability; provided, however, Landlord agrees
to use good faith efforts to relet the Premises upon such terms and conditions
as Landlord may determine advisable in its sole discretion. All rentals and
other sums received by Landlord from reletting shall be applied, first, to the
payment of any related costs and expenses; second, to the payment of any
indebtedness other than rent due hereunder from Tenant to Landlord; third, to
the payment of rent due and unpaid hereunder; and the residue, if any, shall be
applied as a credit against the actual loss suffered by Landlord. If such
rentals and other sums are less than the amounts due pursuant to the foregoing
schedule for application of proceeds, Tenant shall be liable for such
deficiency; if such rentals and other sums shall be more, Tenant shall have no
right to, and shall receive no credit for, the excess.
B. Landlord shall have the right to bring a special proceeding to
recover possession of the Premises from Tenant.
C. Landlord shall have the right, without notice (except notice of
default as required by Paragraph 19.I), to re-enter the Premises and dispossess,
by any lawful means, Tenant and any other occupant(s) of the Premises, and
Tenant shall have no further claim or right hereunder. The words "re-enter" and
"re-entry" as used herein shall not be restricted to their technical legal
meaning.
D. Landlord may exercise its rights under Paragraph 20B or C above with
or without terminating the Lease, and in no event shall any such exercise be
construed as an election to terminate this Lease or operate to release Tenant
from any of its obligations for the remainder of the Lease Term, or give rise to
any claim for trespass.
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E. If Landlord exercises its rights under Paragraph 20B or C above and
elects NOT to terminate the Lease, it may from time to time, make such
alterations and repairs as necessary in order to relet the Premises, and
thereafter relet the Premises or any part thereof for such rent and upon such
terms and conditions as landlord may determine advisable in its sole discretion.
All rents and other sums received by Landlord from reletting shall be applied,
first, to the payment of any related costs and expenses; second, to the payment
of any indebtedness other than Rent due hereunder from Tenant to Landlord;
third; to the payment of Rent due and unpaid hereunder; and the residue, if any,
shall be applied in payment of the current month's Rent. If such rents and other
sums are less than the amounts due pursuant to the foregoing schedule for
application of proceeds, tenant shall pay such deficiency to landlord monthly;
if such rents and other sums shall be more, Tenant shall have no right to, and
shall receive no credit for the excess.
F. Any damage or loss of rent sustained by Landlord may be recovered at
the time of the reletting or termination, in a single action or in separate
actions, from time to time, as said loss of rents or damages shall accrue, or in
a single proceeding deferred until the expiration of the Lease Term (in which
event Tenant hereby agrees that the cause of action shall not be deemed to have
accrued until the date of expiration of said Lease Term).
G. To the extent permitted by law, Tenant waives notice of re-entry or
institution of legal proceedings. The foregoing shall not constitute a waiver by
Tenant of any notice of default due in accordance with Paragraph 19.
H. In addition to the other remedies provided in this Lease, and
anything contained herein to the contrary notwithstanding, Landlord shall (i) be
entitled to restraint by injunction of any violation of this Lease, and (ii)
have a right of distraint for rent and a lien on all of Tenant's furniture,
trade fixtures and equipment in the Premises, as security for rent.
I. Tenant and Landlord each hereby waive all right to trial by jury in
any matter arising out of or in any way connected with this Lease.
J. Landlord shall have the right, at its option, to immediately and
without notice cure a default by Tenant for the account and at the expense of
Tenant and to utilize the Security Deposit for such purposes. Tenant agrees to
pay, with interest at twelve percent (12%) per annum on demand, to Landlord the
amount so incurred by Landlord in connection with such default.
K. With respect to the rights and remedies and waivers herein, (i) such
rights and remedies shall be in addition to any other right and remedy now or
hereafter available at law or in equity; (ii) all such rights and remedies shall
be cumulative and not exclusive of each other; (iii) such rights and remedies
may be exercised at such times, in such order, to such extent, and multiple
times without regard to whether the exercise of one right or remedy precedes,
concurs with or succeeds the exercise of another; and (iv) no waiver of a
Default shall be effective unless acknowledged in writing signed by Landlord.
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21. SURRENDER.
A. Tenant will, upon termination of this Lease, surrender the Premises
and all fixtures and equipment of Landlord therein in good, clean and operating
condition, in the same condition as when received, ordinary wear and tear
excepted. Tenant shall deliver all keys to the Premises to Landlord within
twenty-four hours after vacating.
B. All leasehold improvements (including the Improvements, if any),
alterations and other physical additions made to the Premises (excluding
Tenant's furniture), whether by Tenant or Landlord, shall be Landlord's property
and shall not be removed from the Premises. Notwithstanding the foregoing, upon
the expiration or earlier termination of this Lease, Tenant shall, at Tenant's
expense, remove any of the foregoing items (excluding the Improvements, if any)
from the Premises if Landlord gives Tenant written notice to do so. Tenant shall
promptly repair or reimburse Landlord for the cost of repairing all damage done
to the Premises by such removal.
22. HOLDING OVER. If Tenant shall hold possession of the Premises after the
expiration or sooner termination of the Term, Tenant shall be deemed a
month-to-month tenant at a rate equal to the rate in effect at the time of such
termination if, but only if, Landlord and Tenant agree to such continued
occupancy pursuant to a written agreement. In the absence of a written
agreement, at Landlord's election (a) Tenant shall be treated as a trespasser,
and Landlord shall be entitled to the benefit of all laws relating to the speedy
recovery of the possession of the Premises; or (b) such continued occupancy
shall be deemed a month to-month tenancy subject to the terms of the Lease and
holdover rent shall accrue at a rate equal to twice the sum of (i) the monthly
installment of Base Rent payable during the last month of the Term, and (ii)
one-twelfth (1/12) of the monthly installments of Additional Rent payable during
the last month of the Term.
23. DESTRUCTION. If the Premises shall be damaged or destroyed by fire or other
casualty not resulting from the negligence of Tenant or Tenant's employees,
agents or invitees, and as a result thereof shall be untenantable as reasonably
determined by Landlord, Base Rent shall be suspended until the Premises shall
have been restored to a tenantable condition; provided, however, that Landlord
may notify Tenant that the Premises will not be repaired, in which event this
Lease shall terminate and neither party shall have any further liability to the
other except for liabilities relating to the period prior to termination. If in
the reasonable estimate of Landlord and Tenant, it will take more than 180 days
to restore the Premises to a tenantable condition, Tenant may, within thirty
(30) clays of the occurrence of such damage, terminate the Lease by written
notice to Landlord and neither party shall have any further liability to the
other except for liabilities relating to the period prior to termination. If,
however, such damage or destruction does not render the Premises untenantable as
reasonably determined by Landlord, Landlord shall repair the same or cause the
same to be repaired following receipt of insurance proceeds from Tenant to the
extent such funds are available or from the Landlord's insurance if the damage
is to the portion of the Office Park covered by insurance purchased by the
Landlord. If such damage is caused by Tenant, Tenant's employees, agents or
invitees, then the full amount of rent shall continue to be due, whether or not
the Premises can be or are occupied and all such damage shall be repaired at the
expense of the Tenant. Tenant shall promptly reimburse Landlord for all expenses
incurred by the Landlord for repairs to the Premises for which the Tenant is
responsible hereunder.
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24. CONDEMNATION. If the Premises or any material part thereof is taken by any
authority exercising the power of eminent domain and Tenant is unable to conduct
its business in the remainder of the Premises, as reasonably determined by
Landlord and Tenant, this Lease shall terminate as of the date of possession by
the condemnor. Tenant waives all claims against Landlord or any condemning
authority by reason of the complete or partial taking of the Premises, and shall
not be entitled to receive any part of any award which Landlord may receive,
hereby quitclaiming all interest therein to Landlord. In the event the Lease is
not terminated pursuant to this paragraph, then the Lease shall remain in full
force and effect as to the remainder of the Premises and the Base Rent shall be
pro-rated based on the remaining square footage of the Premises.
25. ATTORNEY'S Fees. If either Landlord or Tenant employs an attorney because of
the other's violation of any covenant, agreement or provision of this Lease, the
prevailing party in such action shall be paid its attorney's fees by the
non-prevailing party.
26. SUBORDINATION. This Lease shall be subject and subordinate at all times to
the lien of the mortgages now on the Premises and to all advances made or
hereafter to be made upon the security thereof and subject and subordinate to
the lien of any mortgage or mortgages which at any time may be made a lien upon
the Premises. The Tenant will execute and deliver within seven (7) days of a
written request therefor such further instrument or instruments evidencing such
subordination of this Lease to the lien of any such mortgage or mortgages as
shall be desired by any mortgagee or proposed mortgagee. The Tenant hereby
appoints the Landlord the attorney-in-fact of the Tenant, irrevocably, to
execute and deliver any such instrument or instruments for the Tenant.
Notwithstanding the generality of the foregoing provisions of this
Paragraph 26, any mortgagee or lessor of Landlord shall have the right at any
time to subordinate any such deed of trust or mortgage or underlying lease to
this Lease, or to any of the provisions hereof, on such terms and subject to
such conditions as such mortgagee or lessor of Landlord may consider appropriate
in its discretion. At any time, before or after the institution of any
proceedings for the foreclosure of any such deed of trust or mortgage, or the
sale of the Office Park or any portion thereof containing the Premises under any
such mortgage, or the termination of any underlying lease, Tenant shall, upon
request of such mortgagee or lessor or any person or entities succeeding to the
interest of such mortgagee or lessor or the purchaser at any foreclosure sale
("Successor Landlord"), automatically attorn to and become the tenant (or if the
Premises has been validly subleased, the subtenant) of the Successor Landlord,
without change in the terms or other provisions of this Lease (or, in the case
of a permitted sublease, without change in this Lease or in the instrument
setting forth the terms of such sublease); provided, however, that the Successor
Landlord shall not be bound by any amendment or other modification to this Lease
without the consent of the Successor Landlord or by any payment made by Tenant
of Base Rent or Additional Rent for more than one (1) month in advance. This
agreement of Tenant to attorn to a Successor Landlord shall survive any such
foreclosure sale, trustee's sale, conveyance in lieu thereof or termination of
any underlying lease. Tenant shall upon demand at any time, before or after any
such foreclosure or termination, execute, acknowledge, and deliver to the
Successor Landlord any written instruments and certificates evidencing such
attornment as such Successor Landlord may reasonably require.
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No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this Lease, or by law, to be relieved of Tenant's
obligations hereunder or to terminate this Lease, shall result in a release of
such obligations or a termination of this Lease unless (i) Tenant has given
notice by registered or certified mail to any mortgagee or lessor of Landlord
whose address shall have been furnished to Tenant, and (ii) Tenant offers such
mortgagee or lessor of Landlord a reasonable opportunity to cure the default,
including time to obtain possession of the Premises by power of sale or judicial
foreclosure, if such should prove necessary to effect a cure.
Tenant shall not unreasonably withhold, delay, or defer its written
consent to reasonable modifications to this Lease which are a condition of any
construction, interim or permanent financing for the Office Park, provided that
such modifications do not increase the obligations of Tenant hereunder or
materially and adversely affect Tenant's use and enjoyment of the Premises.
27. Agency. If Landlord appoints an agent to manage the Premises and collect the
rent due under this Lease, Landlord may authorize the agent to act for Landlord
under the terms of this Lease and Tenant shall in all cases comply with the
reasonable exercise by the agent of any and all of Landlord's rights under this
Lease.
28. NOTICE. Any notice pursuant to this Lease shall be in writing, mailed as
registered or certified United States mail, postage prepaid, or hand delivered
or sent by overnight express courier (with signed receipts) addressed as set
forth herein (or to the last address designated by such party in writing to the
other). Notices shall be deemed conclusively to have been given on the postmark
date, or the date of personal delivery, or on the business day after delivery by
overnight express courier, except notice of change of address which shall only
be deemed given upon actual receipt.
29. BROKERAGE. Landlord and Tenant warrant and represent to each other that,
other than Xxxxxxxx Properties, Inc. (the "Broker"), there was no broker or
agent instrumental in consummating this Lease, and that no conversations or
prior negotiations were had by or with any other broker concerning the renting
of the Premises. Tenant and Landlord shall indemnify and hold each other
harmless against any claims for brokerage or other commissions arising by reason
of a breach of the aforesaid representations and warranties. The commission
shall be paid by Landlord pursuant to a separate agreement.
30. RECORDING. Neither this Lease nor any memorandum hereof may be recorded
among the land records of the jurisdiction in which the Premises is located.
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31. ASSIGNMENT BY LANDLORD. The term "Landlord" shall be limited to mean and
include only the owner or owners, at the time in question, of the fee title to
the Premises. Landlord may transfer its interest in the Lease or the Premises
without the consent of Tenant. At any time, before or after any transfer of
Landlord's interest in the Premises, Tenant shall, upon request of such
transferee ("Successor Landlord"), automatically attorn to and become the tenant
(or if the Premises have been validly subleased, the subtenant) of the Successor
Landlord, without change in the terms or other provisions of this Lease, (or, in
the case of a permitted sublease, without change in this Lease or in the
instrument setting forth the terms of such sublease).
32. LANDLORD'S LIABILITY. Anything contained in this Lease to the contrary
notwithstanding, Tenant agrees that Tenant shall look solely to the estate and
property of Landlord in the Premises for the collection of any judgment or other
judicial process requiring the payment of money by Landlord for any default or
breach by Landlord under this Lease, subject, however, to the prior rights of
any mortgagee or lessor of the Premises. No other assets of Landlord or any
partners, shareholders, or other principals of Landlord shall be subject to
levy, execution or other judicial process for the satisfaction of Tenant's
claim.
33. GOVERNING LAW. This Lease shall be governed by and construed under the laws
of the Commonwealth of Virginia, without reference to its conflicts of laws
principles. Tenant and Landlord hereby consent to jurisdiction and venue in the
General District or Circuit Court for Spotsylvania County, Virginia or in any
other court in the Commonwealth of Virginia selected by Landlord if any suit is
brought relating to this Lease.
34. TIME OF Essence. Time is of the essence in this Lease.
35. FINANCIAL STATEMENTS. Prior to execution of the deed of lease, Tenant shall
provide Landlord with a current financial statement and financial statements for
the two (2) years prior to the current financial statement year. Such statements
shall be prepared in accordance with generally accepted accounting principles,
and, if such is the normal practice of Tenant, shall be audited by an
independent certified public accountant. If it is not the normal practice of
Tenant to prepare audited statements, then the unaudited statements shall be
certified to by the Tenant. Tenant acknowledges and agrees that Landlord may
inquire of Tenant's vendors and other creditors with respect to Tenant's
creditworthiness. Tenant agrees to hold harmless Landlord from any loss or
damage suffered by Tenant as a result of any such inquiries made by Landlord.
36. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, within ten (10) days
after request from Landlord, certify, to the extent true, that this Lease is in
full force and effect and unmodified (or, if there have been modifications, that
the same is in full force and effect as modified and stating the modifications);
the dates to which the rent has been paid; that Tenant has accepted possession
of the Premises and that any improvements required by the terms of this Lease to
be made by Landlord have been completed to the satisfaction of Tenant; the
amount, if any, that Tenant has paid to Landlord as a Security Deposit; that
Tenant, as of the date of such certificate, has no charge, lien, or claim of
13
offset under this Lease or otherwise against rent or other charges due or to
become due hereunder; that, to the knowledge of Tenant, Landlord is not then in
default under the terms of this Lease; that, if Landlord has assigned this Lease
as collateral for a loan, and informed Tenant of the identity of the mortgagee,
Tenant will, upon written request of the mortgagee, pay rent directly to such
mortgagee; and such other matters as may be reasonably requested by Landlord or
any mortgagee, lessor or prospective purchaser of Landlord. Any such certificate
may be relied upon by Landlord, or any mortgagee, lessor or prospective
purchaser of Landlord. In the event that Tenant fails to provide Landlord with
an estoppel certificate as described and within the time period provided
hereinabove, Landlord is hereby appointed Tenant's attorney-in-fact for the
purpose of executing such estoppel certificate and delivering the same to any
mortgagee, lessor or prospective purchaser of Landlord, which appointment is
coupled with an interest and is therefore irrevocable.
37. AUTHORITY. Each individual executing this Lease on behalf of Landlord and
Tenant represents and warrants that he is duly authorized to execute and deliver
this Lease on behalf of Landlord or Tenant in accordance with a partnership
agreement or a duly adopted resolution of the Board of Directors or in
accordance with bylaws and that this Lease is binding upon Landlord and Tenant
in accordance with its terms.
38. SURVIVAL. Tenant's obligations contained in this Lease shall survive the
termination or expiration of the Lease.
39. HAZARDOUS MATERIALS.
A. ENVIRONMENTAL REQUIREMENTS. Tenant's use and occupancy of the
Premises shall at all times be in strict compliance with any and all federal,
state and local statutes, laws, rules, regulations, orders, ordinances and
standards, as they may now or hereafter exist, relating in any way to the
protection of the environment, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended 42 U.S.C.
Sections 9601, ET SEQQ. ("CERCLA"), the Resource Conservation and Recovery Act,
as amended, 42 U.S.C. Sections 9601, ET SEQ. ("RCRA"), the Toxic Substances
Control Act, as amended, 15 U.S.C. Sections 2601 ET SEQ., the Clean Water Act,
as amended, 33 U.S.C. Sections 1251, ET SEQ., the Clean Air Act, as amended, 42.
U.S.C. Sections 7401, ET SEQ., and analogous state statutes (collectively,
"Environmental Statutes").
B. INDEMNIFICATION. Tenant shall, at all times, indemnify, defend. and
hold harmless Landlord against and from any and all claims, liens, suits,
actions, debts, damages, costs, losses, liabilities, obligations, judgments, and
expenses (including, without limitation, court costs and attorneys' fees), of
any nature whatsoever as a result of Tenant's acts or omissions, arising from or
relating to (i) non-compliance with any Federal, state or local environmental
statutes including, without limitation, RCRA and CERCLA, as amended; or (ii) the
presence of any Hazardous Substance (as hereinafter defined) affecting the
Premises or surrounding areas in violation of applicable Legal Requirements. As
used herein, the term "Hazardous Substance" shall mean any material that is or
contains "hazardous substances" as defined pursuant to CERCLA or the Virginia
hazardous waste management regulations or "petroleum" as defined pursuant to
RCRA or other material or substance that requires special handling by Federal,
state or local law, or industry practice, without regard to the quantity or
location of such material. The term Hazardous Substances shall include building
materials and building components including, without limitation, asbestos
contained in or comprising building materials or building components.
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40. MISCELLANEOUS. The conditions and agreements contained herein to be
performed by the respective parties, are binding on, and may be legally enforced
by, the parties, their heirs, executors, administrators, successors and assigns,
respectively. The captions and headings herein are for convenience of reference
only and in no way define or limit the scope or content of this Lease or in any
way affect its provisions. This Lease embodies the final and entire agreement
and understanding between the parties, supersedes all prior negotiations,
agreements and understandings, and neither Landlord or Tenant nor their agents
shall be bound by any terms, conditions, statements, warranties, or
representations, oral or written, not herein contained. Any provision of this
Lease may be modified, waived or discharged only by an instrument in writing
signed by the party against which enforcement of such modification, waiver or
discharge is sought. Feminine or neuter pronouns shall be substituted for those
of the masculine form, and the plural shall be substituted for the singular
number in any place herein in which the context may require such substitution.
The provisions of this Lease are severable and the invalidity or
unenforceability of any provision of this Lease shall not affect or impair any
other provision.
41. COUNTERPARTS. This Lease may be executed in any number of counterparts, each
of which shall be an original but all of which shall together constitute one and
the same instrument.
42. TERMINATION OPTION. Tenant shall have the right to terminate the Lease at
the end of the second year of the Lease Term. If Tenant elects to terminate the
Lease, Tenant must give Landlord at least three (3) MONTHS written notice prior
to the end of the second year of the Lease Term and, upon vacating the Premises,
pay a termination fee of Fifty Thousand and 00/100 Dollars ($50,000.00).
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
duly executed on the date first written above.
(Please see attached page for signatures.)
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LANDLORD:
LJ HOLDING, L.C.
a Virginia limited liability company
Date 9/24/04 By: /s/ Xxxxxxx X. Westerlun
------- ----------------------------
Name: Xxxxxxx X. Westerlun
Title: Manager
TENANT:
EOIR TECHNOLOGIES, INC.
A Virginia Corporation
----------------------------
Date 9/22/04 By: Xxxxx X. Xxxxxxx
------- ----------------------------
Name: Xxxxx X. Xxxxxxx
Title: VP, Operations
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