1
EXHIBIT 10.34
DEED OF LEASE
BETWEEN
FAIR GROVE PROPERTIES, L.L.C.,
as Landlord,
AND
XXXXX.XXX,
as Tenant
Dated: June 5, 2000
For Premises Located
At 00000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
2
TABLE OF CONTENTS
ARTICLE 1: BASIC LEASE PROVISIONS..........................................................................1
1.1 Premises............................................................................................1
1.2 Building............................................................................................1
1.3 Term................................................................................................1
1.4 Commencement Date...................................................................................1
1.5 Expiration Date.....................................................................................1
1.6 Base Rent...........................................................................................1
1.7 Security Deposit....................................................................................1
1.8 Advance Rent........................................................................................1
1.9 Base Year...........................................................................................1
1.10 Tenant's Proportionate Share of Operating Expenses and Real Estate Taxes............................2
1.11 Parking Space Allocation............................................................................2
1.12 Permitted Use.......................................................................................2
1.13 Broker(s)...........................................................................................2
1.14 Landlord's Address..................................................................................2
1.15 Tenant's Address....................................................................................2
ARTICLE 2: DEFINITIONS.....................................................................................2
2.1 Agents..............................................................................................3
2.2 Alterations.........................................................................................3
2.3 Calendar Year.......................................................................................3
2.4 Common Area.........................................................................................3
2.5 Interest Rate.......................................................................................3
2.6 Land................................................................................................3
2.7 Lease Year..........................................................................................3
2.8 Mortgage............................................................................................3
2.9 Mortgagee...........................................................................................3
2.10 Parking Facilities..................................................................................3
2.11 Rent................................................................................................3
2.12 Substantial Completion..............................................................................4
2.13 Substantial Part....................................................................................4
ARTICLE 3: THE PREMISES....................................................................................4
3.1 Lease of Premises...................................................................................4
3.2 Landlord's Reservations.............................................................................4
ARTICLE 4: TERM............................................................................................4
4.1 Commencement and Expiration Dates...................................................................4
4.2 Delayed Possession..................................................................................5
i
3
ARTICLE 5: RENT............................................................................................5
5.1 Base Rent...........................................................................................5
5.2 Additional Rent.....................................................................................5
ARTICLE 6: SECURITY DEPOSIT................................................................................5
ARTICLE 7: OPERATING EXPENSES..............................................................................6
7.1 Tenant's Proportionate Share of Operating Expenses..................................................6
7.2 Operating Expenses Defined..........................................................................6
7.3 Exclusions from operating Expenses..................................................................8
7.4 Estimated Payments..................................................................................8
7.5 Actual Operating Expenses...........................................................................8
ARTICLE 8: TAXES...........................................................................................8
ARTICLE 9: PARKING.........................................................................................9
9.1 Parking Spaces......................................................................................9
9.2 Changes to Parking Facilities.......................................................................9
ARTICLE 10: USE.............................................................................................9
ARTICLE 11: ASSIGNMENT AND SUBLETTING......................................................................10
11.1 Assignment.........................................................................................10
11.2 Subletting.........................................................................................10
11.3 Effect.............................................................................................10
11.4 Surrender..........................................................................................10
ARTICLE 12: MAINTENANCE AND REPAIR.........................................................................11
12.1 Landlord's Obligation..............................................................................11
12.2 Tenant's Obligation................................................................................11
12.3 Landlord's Right to Maintain or Repair.............................................................11
ARTICLE 13: INITIAL CONSTRUCTION; ALTERATIONS..............................................................11
13.1 Initial Construction...............................................................................11
13.2 Alterations........................................................................................12
13.3 Liens..............................................................................................12
13.4 Removal of Alterations.............................................................................12
13.5 Landlord Alterations...............................................................................13
ARTICLE 14: SIGNS..........................................................................................13
ii
4
ARTICLE 15: TENANT'S EQUIPMENT AND PROPERTY................................................................13
15.1 Moving Tenant's Property...........................................................................13
15.2 Installing and Operating Tenant's Equipment........................................................13
ARTICLE 16: RIGHT OF ENTRY.................................................................................14
ARTICLE 17: INSURANCE......................................................................................14
17.1 Insurance Rating...................................................................................14
17.2 Liability Insurance................................................................................14
17.3 Insurance for Personal Property....................................................................14
17.4 Requirements of Insurance Coverage.................................................................15
17.5 Waiver of Subrogation..............................................................................15
17.6 Security...........................................................................................15
17.7 Landlord's Insurance...............................................................................15
ARTICLE 18: LANDLORD SERVICES AND UTILITIES................................................................15
18.1 Ordinary Services to the Premises..................................................................15
18.2 After-Hours Services to the Premises...............................................................16
18.3 Utility Charges....................................................................................16
ARTICLE 19: LIABILITY OF LANDLORD..........................................................................16
19.1 No Liability.......................................................................................16
19.2 Indemnity..........................................................................................17
ARTICLE 20: RULES AND REGULATIONS..........................................................................17
ARTICLE 21: DAMAGE; CONDEMNATION...........................................................................17
21.1 Damage to the Premises.............................................................................17
21.2 Condemnation.......................................................................................18
ARTICLE 22: DEFAULT........................................................................................18
22.1 Events of Default..................................................................................18
22.2 Landlord's Remedies................................................................................19
22.3 Rights Upon Possession.............................................................................20
22.4 No Waiver..........................................................................................20
22.5 Right of Landlord to Cure Tenant's Default.........................................................20
22.6 Late Payment.......................................................................................20
22.7 Landlord Default...................................................................................20
ARTICLE 23: MORTGAGES......................................................................................21
23.1 Subordination......................................................................................21
23.2 Mortgagee Protection...............................................................................21
23.3 Modification Due to Financing......................................................................21
iii
5
ARTICLE 24: SURRENDER; HOLDING OVER........................................................................22
24.1 Surrender of the Premises..........................................................................22
24.2 Holding Over.......................................................................................22
ARTICLE 25: QUIET ENJOYMENT................................................................................22
ARTICLE 26: HAZARDOUS MATERIALS............................................................................22
26.1 Prohibition........................................................................................22
26.2 Compliance.........................................................................................23
26.3 No Contamination...................................................................................23
26.4 Disclosure.........................................................................................23
26.5 Definition.........................................................................................23
26.6 Indemnity..........................................................................................23
ARTICLE 27: MISCELLANEOUS..................................................................................24
27.1 No Representations by Landlord.....................................................................24
27.2 No Partnership.....................................................................................24
27.3 Brokers............................................................................................24
27.4 Estoppel Certificate...............................................................................24
27.5 Waiver of Jury Trial...............................................................................24
27.6 Notices............................................................................................25
27.7 Invalidity of Particular Provisions................................................................25
27.8 Gender and Number..................................................................................25
27.9 Benefit and Burden.................................................................................25
27.10 Entire Agreement...................................................................................25
27.11 Authority..........................................................................................25
27.12 Attorneys' Fees....................................................................................26
27.13 Interpretation.....................................................................................26
27.14 No Personal Liability Sale.........................................................................26
27.15 Time of the Essence................................................................................26
27.16 Force Majeure......................................................................................26
27.17 Headings...........................................................................................26
27.18 Memorandum of Lease................................................................................26
27.19 Landlord's Relocation Option.......................................................................27
27.20 Attorney-in-Fact...................................................................................27
27.21 Effectiveness......................................................................................27
LIST OF EXHIBITS
Exhibit A Plan Showing Premises
Exhibit B Rules and Regulations
Exhibit C Declaration of Commencement Date
iv
6
DEED OF LEASE
THIS DEED OF LEASE (this "Lease") is made as of the 5th day of June, 2000
(the "Date of Lease"), by FAIR GROVE PROPERTIES, L.L.C., a Delaware limited
liability company ("Landlord"), and XXXXX.XXX, a _______________ ("Tenant").
Landlord and Tenant, intending legally to be bound, hereby covenant and
agree as set forth below.
ARTICLE 1: BASIC LEASE PROVISIONS
The following terms, when used herein, shall have the meanings set forth
below.
1.1 Premises. Approximately 4,643 rentable square feet, known as Suite 590
and located on the fifth (5th) floor of the Building as outlined on Exhibit A
attached hereto and made a part hereof.
1.2 Building. The building containing approximately 135,807 rentable square
feet and all alterations, additions, improvements, restorations or replacements
now or hereafter made thereto, with an address of Fair Oaks Commerce Center,
00000 Xxxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000.
1.3 Term. Five (5) years.
1.4 Commencement Date. June 1, 2000, subject to adjustment as set forth in
Article 4.
1.5 Expiration Date. May 31, 2005, subject to adjustment as set forth in
Article 4.
1.6 Base Rent. $27.00 for each rentable square foot of the Premises for the
first Lease Year, payable in equal monthly installments, in accordance with the
schedule below. The Base Rent shall be increased annually by an amount equal to
three percent (3%) of the previous Lease Year Base Rent commencing the second
Lease Year in accordance with the following schedule:
Lease Year Annual Base Rent Monthly Installment
---------- ---------------- -------------------
1 $125,361.00 $10,446.75
2 $129,121.83 $10,760.15
3 $132,995.48 $11,082.96
4 $136,985.35 $11,415.45
5 $141,094.91 $11,757.91
1.7 Security Deposit. $62,680.50 cash, in accordance with Article 6.
1.8 Advance Rent. N/A
1.9 Base Year. The Base Year for calculation of Operating Expenses and Real
Estate Taxes shall be Calendar Year 2000.
7
1.10 Tenant's Proportionate Share of Operating Expenses and Real Estate
Taxes. 3.42%
1.11 Parking Space Allocation. Not more than fifteen (15) spaces, which
shall be in unreserved, non-exclusive parking spaces available in the Parking
Facilities.
1.12 Permitted Use. General office use and related general office uses;
however, such uses shall not include any use that would cause the Premises to be
deemed a "place of public accommodation" under the Americans with Disabilities
Act of 1990.
1.13 Broker(s). Landlord's: Insignia/ESG, Inc. Tenant's: Xxxxx & Xxxxx.
1.14 Landlord's Address.
Fair Grove Properties, L.L.C.
c/o Insignia/ESG, Inc.
00000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
With a copy to:
Insignia/ESG, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
1.15 Tenant's Address.
Before occupancy:
Xxxxx.xxx
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxxx
After Occupancy:
Xxxxx.xxx
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxxx
ARTICLE 2: DEFINITIONS
The following terms, when used herein, shall have the meanings set forth
below.
-2-
8
2.1 Agents. Officers, partners, directors, employees, agents, licensees,
customers, contractors and invitees.
2.2 Alterations. Alterations, decorations, additions or improvements of any
kind or nature to the Premises or the Building, whether structural or
non-structural, interior, exterior or otherwise.
2.3 Calendar Year. A period of twelve (12) months commencing on each
January 1 during the Term, except that the first Calendar Year shall be that
period from and including the Commencement Date through December 31 of that same
year, and the last Calendar Year shall be that period from and including the
last January 1 of the Term through the earlier of the Expiration Date or date of
Lease termination.
2.4 Common Area. All areas, improvements, facilities and equipment from
time to time designated by Landlord for the common use or benefit of Tenant,
other tenants of the Building and their Agents, including, without limitation,
entrances and exits, landscaped areas, exterior lighting, loading areas,
pedestrian walkways, sidewalks, atriums, courtyards, concourses, stairs, ramps,
washrooms, maintenance and utility rooms and closets, exterior utility lines,
hallways, lobbies, elevators and their housing and rooms, common window areas,
common walls, common ceilings, common trash areas and Parking Facilities.
2.5 Interest Rate. Per annum interest rate listed as the prime rate on
corporate loans at large U.S. money center commercial banks as published from
time to time under "Money Rates" in the Wall Street Journal plus three percent
(3%), but in no event greater than the maximum rate permitted by law. In the
event the Wall Street Journal ceases to publish such rates, Landlord shall
choose at Landlord's sole discretion a similar publication which publishes such
rates.
2.6 Land. The piece or parcel of land upon which the Building is located
and all rights, easements and appurtenances thereunto belonging or pertaining,
or such portion thereof as shall be allocated by Landlord to the Building.
2.7 Lease Year. Each consecutive twelve (12) month period elapsing after
(i) the Commencement Date if the Commencement Date occurs on the first day of a
month, or (ii) the first day of the month following the Commencement Date if the
Commencement Date does not occur on the first day of a month.
2.8 Mortgage. Any mortgage, deed of trust, security interest or title
retention interest affecting the Building or the Land.
2.9 Mortgagee. The holder of any note or obligation secured by a mortgage,
deed of trust, security interest or title retention interest affecting the
Building or the Land, including, without limitation, lessors under ground
leases, sale-leasebacks and lease-leasebacks.
2.10 Parking Facilities. All parking areas now or hereafter made available
by Landlord for use by tenants, including, without limitation, open-air parking,
parking decks and parking areas under or within the Building, whether reserved,
exclusive, non-exclusive or otherwise.
2.11 Rent. Base Rent and Additional Rent.
-3-
9
2.12 Substantial Completion. As defined in the Work Agreement attached
hereto and made a part hereof as Exhibit B.
2.13 Substantial Part. More than fifty percent (50%) of the rentable square
feet of the Premises or the Building, as the case may be.
ARTICLE 3: THE PREMISES
3.1 Lease of Premises. In consideration of the agreements contained herein,
Landlord hereby leases the Premises to Tenant, and Tenant hereby leases the
Premises from Landlord, for the Term and upon the terms and conditions
hereinafter provided. As an appurtenance to the Premises, Tenant shall have the
non-exclusive right, together with other tenants of the Building and their
Agents, to use the Common Area. Landlord shall retain absolute dominion and
control over the Common Area and shall operate and maintain the Common Area in
such manner as Landlord, in its sole discretion, shall determine; provided,
however, such exclusive right shall not operate to prohibit Tenant from its use
of the Premises for the Permitted Use. Landlord expressly reserves the right
permanently to change, modify or eliminate, or temporarily to close, any portion
of the Common Area. The Premises are leased subject to, and Tenant agrees not to
violate, all present and future covenants, conditions and restrictions of record
which affect the Building.
3.2 Landlord's Reservations. In addition to the other rights of Landlord
under this Lease, Landlord reserves the right (i) to change the street address
and/or name of the Building, (ii) to install, erect, use, maintain and repair
mains, pipes, conduits and other such facilities to serve the Building's tenants
in and through the Premises, (iii) to grant to anyone the exclusive right to
conduct any particular business or undertaking in the Building, (iv) to
establish a condominium regime for the Building, the Land and/or the Common Area
and to include the Premises therein and (v) to control the use of the roof and
exterior walls of the Building for any purpose. Landlord may exercise any or all
of the foregoing rights without being deemed to be guilty of an eviction, actual
or constructive, or a disturbance or interruption of the business of Tenant or
Tenant's use or occupancy of the Premises.
ARTICLE 4: TERM
4.1 Commencement and Expiration Dates. The Term shall commence on the
Commencement Date and expire at midnight on the Expiration Date. If Substantial
Completion of the Premises has not occurred on the date set forth in Article 1
as the Commencement Date, or if Tenant uses or accepts the Premises before the
date set forth in Article 1 as the Commencement Date, then the Commencement Date
shall be the earlier of (i) the date of Substantial Completion or (ii) the date
upon which Tenant uses or accepts the Premises (e.g. by the moving of any
furnishings or other personalty into the Premises). In such event, the
Expiration Date shall be adjusted accordingly so that the period of the Term is
not changed. If requested by Landlord, Tenant shall within fifteen (15) days of
such request sign a declaration acknowledging the Commencement Date and the
Expiration Date in the form attached hereto and made a part hereof as Exhibit D.
-4-
10
4.2 Delayed Possession. In the event that Landlord is unable to deliver
possession of the Premises to Tenant on the Commencement Date set forth in
Article 1, Landlord shall not be liable or responsible for any claims, damages
or losses arising in connection with such delay in possession, and Tenant shall
not be excused or released from any obligation under this Lease as a result of
any delay in delivery or possession of the Premises: provided however that,
unless a delay in Landlord's delivery of possession of the Premises is caused by
Tenant, Tenant shall not be required to pay Rent until Landlord delivers
possession of the Premises to Tenant.
ARTICLE 5: RENT
5.1 Base Rent. Tenant shall pay to Landlord the Base Rent as specified in
Section 1.6. Base Rent for each Lease Year shall be payable in equal monthly
installments, in advance, without demand, notice, deduction, offset or
counterclaim, on or before the first day of each and every calendar month during
the Term; provided, however, that the installment of the Base Rent payable for
the first full calendar month of the Term (and, if the Commencement Date occurs
on a date other than on the first day of a calendar month, Base Rent prorated
from such date until the first day of the following month) shall be due and
payable on the full execution and delivery of this Lease. Tenant shall pay the
Base Rent and all Additional Rent, by good check or in lawful currency of the
United States of America, to Landlord at Landlord's Address, or to such other
address or in such other manner as Landlord from time to time specifies by
written notice to Tenant. Any payment made by Tenant to Landlord on account of
Base Rent may be credited by Landlord to the payment of any late charges then
due and payable and to any Base Rent or Additional Rent then past due before
being credited to Base Rent currently due.
5.2 Additional Rent. All sums payable by Tenant under this Lease, other
than Base Rent, shall be deemed "Additional Rent," and, unless otherwise set
forth herein, shall be payable in the same manner as set forth above for Base
Rent.
ARTICLE 6: SECURITY DEPOSIT
Simultaneously with the execution of this Lease, Tenant shall deposit the
Security Deposit with Landlord, which shall be held by Landlord, without
obligation for interest, as security for the performance of Tenant's obligations
and covenants under this Lease. Subject to Landlord's annual review and
approval, in Landlord's sole discretion, of Tenant's financial information, on
the anniversary of each Lease Year during the Term, Landlord shall reduce the
Security Deposit by the amount of one month's rent. There shall be a maximum of
four (4) such annual financial reviews and potential reductions in Security
Deposit, leaving a minimum of at least two month's rent as the Security Deposit
hereunder. It is expressly understood and agreed that such deposit is not an
advance rental deposit or a measure of Landlord's damages in case of an Event of
Default. If an Event of Default shall occur or if Tenant fails to surrender the
Premises in the condition required by this Lease, Landlord shall have the right
(but not the obligation), and without prejudice to any other remedy which
Landlord may have on account thereof, to apply all or any portion of the
Security Deposit to cure such default or to remedy the condition of the
Premises. If Landlord so applies the Security Deposit or any portion thereof
before the Expiration Date or earlier termination of this Lease, Tenant shall
deposit with Landlord, upon demand, the amount necessary to restore the Security
Deposit to its original
-5-
11
amount. If Landlord shall sell or transfer its interest in the Building,
Landlord shall have the right to transfer the Security Deposit to such purchaser
or transferee, in which event Tenant shall look solely to the new landlord for
the return of the Security Deposit, and Landlord thereupon shall be released
from all liability to Tenant for the return of the Security Deposit. Although
the Security Deposit shall be deemed the property of Landlord, any remaining
balance of the Security Deposit shall be returned to Tenant at such time after
the Expiration Date or earlier termination of this Lease that all of Tenant's
obligations under this Lease have been fulfilled. Landlord shall conduct a "Post
Move-Out Inspection" of the Premises within fifteen (15) days after the
Expiration Date or earlier termination of this Lease and, subject to the results
of such Post Move-Out Inspection, shall return the Security Deposit to Tenant
within thirty (30) days after the Expiration Date or earlier termination of this
Lease.
ARTICLE 7: OPERATING EXPENSES
7.1 Tenant's Proportionate Share of Operating Expenses. Tenant shall pay to
Landlord throughout the Term, as Additional Rent, Tenant's Proportionate Share
of the amount by which the operating Expenses during each Calendar Year exceed
the operating Expenses during the Base Year. In the event that the Commencement
Date or the Expiration Date are other than the first day of a Calendar Year then
Tenant's Proportionate Share of the Operating Expenses shall be adjusted to
reflect the actual period of occupancy during the Calendar Year.
7.2 Operating Expenses Defined. As used herein, the term "Operating
Expenses" shall mean all expenses and costs of every kind and nature which
Landlord incurs because of or in connection with the ownership, maintenance,
management and operation of the Building (which expressly includes the Land, the
Building and the Common Area), if the Building is less than ninety-five percent
(95%) occupied, including all additional costs and expenses of operation,
management and maintenance of the Building which Landlord determines that it
would have paid or incurred during any Calendar Year if the Building had been
ninety-five percent (95%) occupied. Operating Expenses shall include, without
limitation, all costs, expenses and disbursements incurred or made in connection
with the following:
(i) Wages and salaries of all employees, including without limitation
an on-site management agent and staff, whether employed by Landlord or the
Building's management company, engaged in the operation and maintenance or
security of the Building and all costs related to or associated with such
employees or the carrying out of their duties, including uniforms and their
cleaning, taxes, travel, auto and insurance and benefits;
(ii) All supplies and materials, including janitorial and lighting
supplies, used directly in the operation and maintenance of the Building;
(iii) All utilities, including, without limitation, electricity,
telephone, water, sewer, power, gas, heating, lighting and air conditioning
for the Building, except to the extent such utilities are charged directly
to or paid directly by, a tenant of the Building;
(iv) All insurance purchased by Landlord or the Building's management
company relating to the Land, the Building and any equipment or other
property
-6-
12
contained therein or located thereon including, without limitation,
casualty, liability, rental loss, sprinkler and water damage insurance;
(v) All repairs to the Building (excluding repairs paid for by the
proceeds of insurance or by Tenant or other third parties other than as a
part of the Operating Expenses), including interior, exterior, structural
or non-structural, and regardless of whether foreseen or unforeseen;
(vi) All maintenance of the Building, including, without limitation,
painting, ice and snow removal, landscaping, groundskeeping and the
patching, painting and resurfacing of driveways and parking lots;
(vii) A management fee payable to Landlord or the company or companies
managing the Building including but not limited to a separate fee for the
Parking Facilities, if any;
(viii) All maintenance, operation and service agreements for the
Building, and any equipment related thereto, (excluding those paid for by
Tenant or any third parties other than as a part of Operating Expenses);
(ix) Accounting and legal fees incurred in connection with the
operation and maintenance of the Building or related thereto;
(x) Any additional services not provided to the Building at the
Commencement Date but thereafter provided by Landlord as Landlord shall
deem necessary or desirable in connection with the management or operation
of the Building;
(xi) All condominium dues and/or property owner's association dues and
related charges and all assessments, whether general, special or otherwise,
levied against Landlord or the Building pursuant to any condominium regime
or any declaration or other instrument affecting the Building or any part
or component thereof;
(xii) All computer rentals for energy management or security
monitoring systems, if any;
(xiii) Any capital improvements made to the Building after the
Commencement Date (other than those made for the addition of rentable
square footage to the Building or for the sole benefit of a Building tenant
pursuant to its lease), for the purpose of reduction of Operating Expenses
or made in order to comply with applicable laws imposed upon the Building,
the cost of which shall be amortized over such reasonable period as
Landlord shall determine, together with interest on the unamortized balance
of such cost at the Interest Rate or such higher rate as may have been paid
by Landlord on funds borrowed for the purposes of constructing said capital
improvements; and
(xiv) Other expenses and costs reasonably necessary for operating and
maintaining the Building.
-7-
13
7.3 Exclusions from operating Expenses. Operating Expenses shall not
include the following: (i) Legal fees, space planners' fees, real estate
brokers' leasing commissions and advertising expenses incurred in connection
with the original or future leasing of space in the Building; (ii) Costs and
expenses of alterations or improvements of the Premises or the leasehold
premises of other individual tenants; (iii) Costs of correcting defects in, or
inadequacy of, the design or construction of the Building or the materials used
in the construction of the Building or the equipment or appurtenances thereto to
the extent covered by warranties and recovered by Landlord; and (iv)
Depreciation, interest and principal payments on mortgages and other debt costs,
if any, other than amortization of and the interest factor attributable to
permitted capital improvements.
7.4 Estimated Payments. Landlord shall submit to Tenant, before the
beginning of each Calendar Year, a statement of Landlord's estimate of the
Operating Expenses payable by Tenant during such Calendar Year. In addition to
the Base Rent, Tenant shall pay to Landlord on or before the first day of each
month during such Calendar Year an amount equal to one-twelfth (1/12) the
estimated operating Expenses payable by Tenant for such Calendar Year as set
forth in Landlord's statement. If Landlord fails to give Tenant notice of its
estimated payments due under this Section for any Calendar Year, then Tenant
shall continue making monthly estimated payments in accordance with the estimate
for the previous Calendar Year until a new estimate is provided. If Landlord
determines that, because of unexpected increases in Operating Expenses or other
reasons, Landlord's estimate of the Operating Expenses was too low, then
Landlord shall have the right to give a new statement of the estimated Operating
Expenses due from Tenant for such Calendar Year or the balance thereof and to
xxxx Tenant for any deficiency which may have accrued during such Calendar Year,
and Tenant shall thereafter pay monthly estimated payments based on such new
statement.
7.5 Actual Operating Expenses. Within one hundred twenty (120) days after
the end of each Calendar Year, Landlord shall submit a statement to Tenant
showing the actual Operating Expenses for such Calendar Year and Tenant's
Proportionate Share of the amount by which such Operating Expenses exceed the
Operating Expenses during the Base Year. If for any Calendar Year, Tenant's
estimated monthly payments exceed Tenant's Proportionate Share of the amount by
which the actual Operating Expenses for such Calendar Year exceed the Operating
Expenses during the Base Year, then Landlord shall give Tenant a credit in the
amount of the overpayment toward Tenant's next monthly payments of estimated
Operating Expenses. If for any Calendar Year Tenant's estimated monthly payments
are less than Tenant's Proportionate Share of the amount by which the actual
Operating Expenses for such Calendar Year exceed the Operating Expenses during
the Base Year, then Tenant shall pay the total amount of such deficiency to
Landlord within thirty (30) days after receipt of the statement from Landlord.
Landlord's and Tenant's obligations with respect to any overpayment or
underpayment of operating Expenses shall survive the expiration or termination
of this Lease.
ARTICLE 8: TAXES.
Tenant shall pay to Landlord throughout the Term, as Additional Rent,
Tenant's Proportionate Share of the amount by which Real Estate Taxes during
each Calendar Year exceed the Real Estate Taxes during the Base Year. In the
event the Commencement Date or the Expiration Date are other than the first
(1st) day of a Calendar Year, the Tenant's Proportionate
-8-
14
Share of Real Estate Taxes shall be adjusted to reflect the actual period of
occupancy during the Calendar Year. "Real Estate Taxes" shall mean all taxes and
assessments, including but not limited to, general or special, ordinary or
extraordinary, foreseen or unforeseen, assessed, levied or imposed by any
governmental authority upon the Building and the Land and upon the fixtures,
machinery, equipment or systems in, upon or used in connection with any of the
foregoing, and the rental, revenue or receipts derived therefrom, under the
current or any future taxation or assessment system or modification of,
supplement to, or substitute for such system. Real Estate Taxes also shall
include special assessments which are in the nature of or in substitution for
real estate taxes, including, without limitation, road improvement assessments,
special use area assessments and school district assessments. If at any time the
method of taxation prevailing at the Date of Lease shall be altered so that in
lieu of, as a substitute for or in addition to the whole or any part of the
taxes now levied or assessed, there shall be levied or assessed a tax of
whatever nature, then the same shall be included as Real Estate Taxes hereunder.
Further, for the purposes of this Article, Real Estate Taxes shall include the
reasonable expenses (including, without limitation, attorneys' fees) incurred by
Landlord in challenging or obtaining or attempting to obtain a reduction of such
Real Estate Taxes, regardless of the outcome of such challenge. Notwithstanding
the foregoing, Landlord shall have no obligation to challenge Real Estate Taxes.
If as a result of any such challenge, a tax refund is made to Landlord, then the
amount of such refund less the expenses of the challenge shall be deducted from
Real Estate Taxes due in the Lease Year such refund is received. Landlord shall
charge Tenant for its Proportionate Share of Real Estate Taxes in accordance
with the procedures established under Sections 7.4 and 7.5 for payment of
operating Expenses.
ARTICLE 9: PARKING
9.1 Parking Spaces. Tenant and its Agents shall have the right to use the
Parking Space Allocation. If Landlord shall determine that Tenant and its Agents
are using parking spaces in excess of the Parking Space Allocation and Tenant
fails to remedy such excess use within fifteen (15) days following written
notice from Landlord, such excess use shall be an Event of Default giving rise
to the remedies set forth in Article 22.
9.2 Changes to Parking Facilities. Landlord shall have the right, from time
to time, without Tenant's consent, to change, alter, add to, temporarily close
or otherwise affect the Parking Facilities in such manner as Landlord, in its
sole discretion, deems appropriate including, without limitation, the right to
designate reserved spaces available only for use by one or more tenants
(however, in such event, those parking spaces shall still be deemed Common Area
for the purpose of the definition of Operating Expenses), provided that, except
in emergency situations or situations beyond Landlord's control, Landlord shall
provide alternative Parking Facilities.
ARTICLE 10: USE
Tenant shall occupy the Premises solely for the Permitted Use. The Premises
shall not be used for any other purpose, or for any use that would cause the
Premises to be deemed a "place of public accommodation" under the Americans With
Disabilities Act of 1990, without the prior written consent of Landlord. Tenant
shall comply, at Tenant's expense, with (i) all present and
-9-
15
future laws, ordinances, regulations and orders of the United States of America,
the Commonwealth of Virginia and any other public or quasi-public federal, state
or local authority having jurisdiction over the Premises, and (ii) any
reasonable requests of Mortgagee or any insurance company providing coverage
with respect to the Premises. Tenant shall not use or occupy the Premises in any
manner that is unlawful or dangerous or that shall constitute waste,
unreasonable annoyance or a nuisance to Landlord or the other tenants of the
Building.
ARTICLE 11: ASSIGNMENT AND SUBLETTING
11.1 Assignment. Tenant shall not assign, transfer, mortgage or otherwise
encumber this Lease or any part thereof, nor shall any assignment or transfer of
this Lease be effected by operation of law or otherwise, without the prior
written consent of Landlord which may be granted or withheld in Landlord's
reasonable discretion. For purposes of the foregoing prohibitions, a transfer at
any one time or from time to time of twenty percent (20%) or more of an interest
in Tenant (whether stock, partnership interest or other form of ownership or
control) by any person(s) or entity(ties) having an interest in ownership or
control of Tenant at the Date of Lease shall be deemed to be an assignment of
this Lease.
11.2 Subletting. Tenant shall not sublet or rent or permit a third party to
occupy or use the Premises, or any part thereof, without the prior written
consent of Landlord, which consent may be granted or withheld in Landlord's
reasonable discretion.
11.3 Effect. If Landlord consents to the proposed assignment, transfers or
subletting, the initial Tenant and any Guarantor shall remain liable under this
Lease and the initial Tenant shall pay to Landlord the Rent and fifty percent
(50$) of any amount of rent or other sums directly or indirectly received by
Tenant from any subtenant, assignee or transferee which exceeds the Rent. Any
assignment, transfer, mortgage, encumbrance, or sublease without Landlord's
written consent shall be voidable by Landlord and, at Landlord's election,
constitute an Event of Default hereunder. Neither the consent by Landlord to any
assignment, transfer, encumbrance or subletting nor the collection or acceptance
by Landlord of rent from any assignee, subtenant or occupant shall be construed
as a waiver or release of the initial Tenant or any Guarantor from the terms and
conditions of this Lease or relieve Tenant or any subtenant, assignee or other
party from obtaining the consent in writing of Landlord to any further
assignment, transfer, encumbrance or subletting. Tenant hereby assigns to
Landlord the Rent and fifty percent (50%) of the rent and other sums which
exceed the Rent due from any subtenant, assignee or other occupant of the
Premises and hereby authorizes and directs each such subtenant, assignee or
other occupant to pay the Rent and fifty percent (50%) of the rent or other sums
which exceed the Rent directly to Landlord; provided, however, that until the
occurrence of an Event of Default, Tenant shall have the license to continue
collecting the Rent and fifty percent (50%) of such rent and other sums which
exceed the Rent from subtenants or other occupants, but not from assignees, who
shall pay rent and other sums under this Lease directly to Landlord.
11.4 Surrender. Notwithstanding the foregoing, in the event of a proposed
assignment or subletting, Landlord shall have the right, by notice to Tenant, to
terminate this Lease in the event of an assignment as to all of the Premises
and, in the event of a sublease, as to the subleased portion of the Premises,
and to require that all or part, as the case may be, of the
-10-
16
Premises be surrendered to Landlord for the balance of the Term. Tenant shall be
released from its obligations under this Lease (or its pro-rata portion thereof
in the event of a partial termination) as a result of such termination by
Landlord.
ARTICLE 12: MAINTENANCE AND REPAIR
12.1 Landlord's Obligation. As long as no Event of Default has occurred and
is continuing, Landlord shall keep and maintain in good repair and working order
the Building, the Common Area, the mechanical and electrical systems of the
Building, and the equipment within and serving the Premises and the Building
(excluding Tenant's leasehold improvements in the Premises) that are required
for the normal maintenance and operation of the Premises and the Building. The
cost of such maintenance and repairs to the Building and said equipment shall be
included in the operating Expenses and paid by Tenant as provided in Article 7
herein. Tenant shall immediately give Landlord written notice of any defect or
need for repairs. After such notice, Landlord shall have a reasonable
opportunity to repair or cure such defect. Landlord's liability with respect to
any defects, repairs or maintenance for which Landlord is responsible under any
of the provisions of this Lease shall be limited to the cost of such repairs or
maintenance or the curing of such defect.
12.2 Tenant's Obligation. Tenant shall, at its own expense, maintain all of
Tenant's leasehold improvements in the Premises and other real and personal
property within the Premises in good condition, promptly making all necessary
repairs and replacements. Tenant shall repair at its expense, any and all damage
caused by Tenant or Tenant's agents, contractors or subcontractors to the
Building, the Common Area, or the Premises, including equipment within and
serving the Building, ordinary wear and tear excepted. Notwithstanding the
foregoing, Tenant shall bear the cost of, but shall not itself perform without
Landlord's prior consent, any such repairs which would affect the Building's
structure or mechanical or electrical systems or which would be visible from the
exterior of the Building or from any interior Common Area of the Building. Where
Landlord performs such repairs, Tenant shall promptly pay to Landlord upon
demand all costs incurred in connection therewith plus interest thereon at the
Interest Rate from the demand date until paid. Without the prior written consent
of the Landlord, Tenant shall not have access to the roof of the Building for
any purpose whatsoever.
12.3 Landlord's Right to Maintain or Repair. If, within five (5) days
following notice to Tenant, Tenant fails to commence to repair or replace any
damage to the Premises or Building which is Tenant's obligation to perform, and
diligently pursue timely completion of such repair and replacement, Landlord
may, at its option, cause all required maintenance, repairs or replacements to
be made. Tenant shall promptly pay Landlord all costs incurred in connection
therewith plus interest thereon at the Interest Rate from the due date until
paid.
ARTICLE 13: INITIAL CONSTRUCTION; ALTERATIONS
13.1 Initial Construction. Landlord shall repair or replace carpet as
needed at the commencement of the Term using building standard materials (same
color and quality as previously in the Premises), shall finish any drywall work
under construction using building standard materials (similar finish as
previously in the Premises), and shall install one new door
-11-
17
and casing in the room in the back of the Premises (to match the existing
door(s)). Tenant shall install telephone and data cabling at its own expense.
Landlord shall provide Tenant with access to the Premises ten (10) days prior to
the Commencement Date for such cabling installation.
13.2 Alterations. Tenant shall not make or permit any Alterations without
the prior written consent of Landlord, which consent may be granted or withheld
in Landlord's sole discretion. Landlord may impose any reasonable conditions to
its consent, including, without limitation, (i) delivery to Landlord of written
and unconditional waivers of mechanic's and materialmen's liens as to the
Premises, the Building and the Land for all work, labor and services to be
performed and materials to be furnished, signed by all contractors,
subcontractors, materialmen and laborers participating in the Alterations, (ii)
prior approval of the plans and specifications and Tenant's contractor(s) with
respect to the Alterations, (iii) supervision by Landlord's representative at
Tenant's expense of the Alterations and (iv) delivery to Landlord of payment and
performance bonds naming Landlord and Mortgagee as obligees. The Alterations
shall conform to the requirements of Landlord's and Tenant's insurers and of the
Federal, state and local governments having jurisdiction over the Premises,
shall be performed in accordance with the terms and provisions of this Lease in
a good and workmanlike manner befitting a first class office building and shall
not adversely affect the value, utility or character of the Premises. If the
Alterations are not performed as herein required, Landlord shall have the right,
at Landlord's option, to halt any further Alterations, or to require Tenant to
perform the Alterations as herein required or to require Tenant to return the
Premises to its condition before such Alterations. Subject to Section 13.4
herein, all Alterations and fixtures, whether temporary or permanent in
character, made in or upon the Premises either by Tenant or Landlord, will
immediately become Landlord's property and, at the end of the Term will remain
on the Premises without compensation to Tenant.
13.3 Liens. Notwithstanding the foregoing, if any mechanic's or
materialmen's lien is filed against the Premises, the Building or the Land for
work claimed to have been done for, or materials claimed to have been furnished
to or for the benefit of, Tenant, such lien shall be discharged of record by
Tenant within ten (10) days by the payment thereof or the filing of any bond
required by law. If Tenant shall fail to discharge any such lien, Landlord may
(but shall not be obligated to) discharge the same, the cost of which shall be
paid by Tenant within three (3) days of demand by Landlord. Such discharge by
Landlord shall not be deemed to waive or release the default of Tenant in not
discharging the same. Neither Landlord's consent to the Alterations nor anything
contained in this Lease shall be deemed to be the agreement or consent of
Landlord to subject Landlord's interest in the Premises, the Building or the
Land to any mechanic's or materialmen's liens which may be filed in respect of
the Alterations.
13.4 Removal of Alterations. Unless Landlord specifies at the time Landlord
approves such Alterations that such Alterations shall be removed by Tenant, all
or any part of the Alterations (including, without limitation, wall-to-wall
carpet and wiring), whether made with or without the consent of Landlord, shall
remain upon the Premises and be surrendered therewith at the Expiration Date or
earlier termination of this Lease as the property of Landlord without
disturbance, molestation or injury. If Landlord so requires the removal of all
or part of the Alterations, Tenant, at its expense, shall repair any damage to
the Premises or the Building caused by such removal before the expiration or
termination of this Lease. If Tenant fails to remove such Alterations, then
Landlord may (but shall not be obligated to) remove the same and
-12-
18
the cost of such removal and repair of any damage caused by the same, together
with any and all damages which Landlord may suffer and sustain by reason of the
failure of Tenant to remove the same, shall be, charged to Tenant and paid upon
demand.
13.5 Landlord Alterations. Landlord shall have no obligation to make any
Alterations in or to the Premises, the Building, the Common Area or the Land
except as specifically provided in Section 13.1. Landlord hereby reserves the
right, from time to time, to make Alterations to the Building, change the
Building dimensions, erect additional stories thereon and attach other buildings
and structures thereto, and to erect such scaffolding and other aids to
construction as Landlord deems appropriate, and no such Alterations, changes,
construction or erection shall constitute an eviction, constructive or
otherwise, or permit Tenant any abatement of Rent or claim.
ARTICLE 14: SIGNS
No sign, advertisement or notice shall be inscribed, painted, affixed,
placed or otherwise displayed by Tenant on any part of the Land or the outside
or the inside (including, without limitation, the windows) of the Building or
the Premises. Landlord shall, at Landlord's expense, place a Building-standard
suite entry sign on the exterior of the Premises identifying Tenant's occupancy
of the Premises. Any other permitted signs shall be installed and maintained by
Landlord at Tenant's sole expense. If any prohibited sign, advertisement or
notice is nevertheless exhibited by Tenant, Landlord shall have the right to
remove the same, and Tenant shall pay any and all expenses incurred by Landlord
in such removal, together with interest thereon at the Interest Rate, upon
demand. Landlord shall have the right to prohibit any sign, advertisement,
notice or statement to the public by Tenant which, in Landlord's opinion, tends
to impair the reputation of the Building or its desirability as a first class
office building.
ARTICLE 15: TENANT'S EQUIPMENT AND PROPERTY
15.1 Moving Tenant's Property. Any and all damage or injury to the Premises
or the Building caused by moving the property of Tenant into or out of the
Premises, or due to the same being on the Premises, shall be repaired by
Landlord, at the expense of Tenant. Tenant shall promptly remove from the Common
Area any of Tenant's furniture, equipment or other property there deposited.
15.2 Installing and Operating Tenant's Equipment. Without first obtaining
the written consent of Landlord, Tenant shall not install or operate in the
Premises (i) any electrically operated equipment or other machinery, other than
standard office equipment that does not require wiring, cooling or other service
in excess of Building standards, (ii) any equipment of any kind or nature
whatsoever which will require any changes, replacements or additions to, or
changes in the use of, any water, heating, plumbing, air conditioning or
electrical system of the Premises or the Building, or (iii) any equipment which
causes the floor load to exceed the load limits set by Landlord for the
Building. Landlord's consent to such installation or operation may be
conditioned upon the payment by Tenant of additional compensation for any excess
consumption of utilities and any additional power, wiring, cooling or other
service (as determined in the sole discretion of Landlord) that may result from
such equipment. Machines
-13-
19
and equipment which cause noise or vibration that may be transmitted to the
structure of the Building or to any space therein so as to be objectionable to
Landlord or any other Building tenant shall be installed and maintained by
Tenant, at its expense, on vibration eliminators or other devices sufficient to
eliminate such noise and vibration.
ARTICLE 16: RIGHT OF ENTRY
Tenant shall permit Landlord or its Agents, at any time and without notice,
to enter the Premises, without diminution of Rent, (i) to examine, inspect and
protect the Premises and the Building, (ii) to make such alterations and repairs
or perform such maintenance which in the sole judgment of Landlord may be deemed
necessary or desirable, (iii) to exhibit the same to prospective purchasers of
the Building or to present or future Mortgagees or (iv) to exhibit the same to
prospective tenants during the last twelve (12) months of the Term.
ARTICLE 17: INSURANCE
17.1 Insurance Rating. Tenant shall not conduct or permit any activity, or
place any equipment or material, in or about the Premises, the Building or the
Common Area which will increase the rate of fire or other insurance on the
Building or insurance benefitting any other tenant of the Building; and if any
increase in the rate of insurance is stated by any insurance company or by the
applicable insurance rating bureau to be due to any activity, equipment or
material of Tenant in or about the Premises, the Building or the Common Area,
such statement shall be conclusive evidence that the increase in such rate is
due to the same and, as a result thereof, Tenant shall pay such increase to
Landlord upon demand.
17.2 Liability Insurance. Tenant shall, at its sole cost and expense,
procure and maintain throughout the Term a commercial general liability policy
insuring against claims, demands or actions for bodily injury, death, personal
injury, and loss or damage to property arising out of or in connection with: (i)
the Premises; (ii) the condition of the Premises; (iii) Tenant's operations in,
maintenance and use of the Premises, Building and Common Area, and (iv) Tenant's
liability assumed under this Lease. Such insurance shall have such combined
single limit as reasonably required by Landlord from time to time, but in no
event less than Two Million Dollars ($2,000,000.00) per occurrence, on an
occurrence basis, and shall be primary over any insurance carried by Landlord.
Endorsements shall be obtained for cross-liability and contractual liability.
17.3 Insurance for Personal Property. Tenant shall, at its sole cost and
expense, procure and maintain throughout the Term a property insurance policy
(written on an "All Risk" basis) insuring all of Tenant's personal property,
including but not limited to equipment, furniture, fixtures, furnishings and
leasehold improvements which are the responsibility of Tenant, for not less than
the full replacement cost of said property. All proceeds of such insurance shall
be used to repair or replace Tenant's property. In addition, Tenant shall, at
its sole cost and expense, procure and maintain business interruption insurance
in an amount not less than two (2) years Base Rent.
-14-
20
17.4 Requirements of Insurance Coverage. All such insurance required to be
carried by Tenant herein shall be with an insurance company licensed to do
business in the Commonwealth of Virginia and rated not lower than A-XII in the
A.M. Best Rating Guide. Such insurance (i) shall contain an endorsement that
such policy shall remain in full force and effect notwithstanding that the
insured has released its right of action against any party before the occurrence
of a loss; (ii) shall name Landlord, Landlord's managing agent, and, at
Landlord's request, any Mortgagee or ground lessor, as additional insured
parties; and (iii) shall provide that the policy shall not be cancelled, failed
to be renewed or materially amended without at least thirty (30) days' prior
written notice to Landlord and, at Landlord's request, any Mortgagee. On or
before the Commencement Date and, thereafter, not less than thirty (30) days
before the expiration date of the insurance policy, an original of the policy
(including any renewal or replacement policy) or a certified copy thereof,
together with evidence satisfactory to Landlord of the payment of all premiums
for such policy, shall be delivered to Landlord and, at Landlord's request, to
any Mortgagee.
17.5 Waiver of Subrogation. Each party hereby releases the other party
hereto from liability for any loss or damage to any building, structure or
tangible personal property, or any resulting loss of income, or losses under
worker's compensation laws and benefits, notwithstanding that such loss, damage
or liability may arise out of the negligent or intentionally tortious act or
omission of the other party or its agents, if such loss or damage is covered by
insurance benefitting the party suffering such loss or damage or was required to
be covered by insurance pursuant to this Lease. Each party hereto shall have a
waiver of subrogation clause (providing that such waiver of right of recovery
against the other party shall not impair the effectiveness of such policy or the
insured's ability to recover thereunder) included in its said policies, and
shall promptly notify the other in writing if such clause cannot be included in
any such policy; if such waiver of subrogation clause shall not be available,
then the foregoing waiver of right of recovery shall be void.
17.6 Security. In the event that Landlord engages the services of a
professional security system for the Building, it is understood that such
engagement shall in no way increase Landlord's liability for occurrences and/or
consequences which such a system is designed to detect or avert and that Tenant
shall look solely to its insurer as set out above for claims for damages or
injury to any person or property.
17.7 Landlord's Insurance. Landlord shall procure and maintain throughout
the Term fire and extended coverage insurance on the Building in such coverage
and amounts as reasonably determined by Landlord in its prudent management of
the Building and as necessary to satisfy the requirements of Landlord's
Mortgagee, if any.
ARTICLE 18: LANDLORD SERVICES AND UTILITIES
18.1 Ordinary Services to the Premises. As long as no Event of Default has
occurred and is continuing, Landlord shall furnish to the Premises throughout
the Term (i) electricity, heating and air conditioning appropriate for the
Permitted Use between 8:00 a.m. and 6:00 p.m., Monday through Friday, and
between 8:00 a.m. and 1:00 p.m. on Saturday, except for legal holidays observed
by the federal government, (ii) reasonable janitorial service, (iii) regular
trash removal from the Premises, (iv) hot and cold water from points of supply,
(v) restrooms as
-15-
21
required by applicable code, and (vi) elevator service, if there is an elevator
in the Building, provided that Landlord shall have the right to remove such
elevators from service as may be required for moving, freight or for servicing
or maintaining the elevators or the Building. The cost of all services provided
by Landlord hereunder shall be included within Operating Expenses, unless
charged directly (and not as a part of Operating Expenses) to Tenant or another
tenant of the Building. Landlord agrees to furnish landscaping and grounds
maintenance and snow clearing for the areas used in common by the tenants of the
Building. The foregoing services shall be furnished by Landlord and reimbursed
by Tenant as part of Operating Expenses; provided, however, that Landlord shall
be under no responsibility or liability for failure or interruption in such
services caused by breakage, accident, strikes, repairs or for any other cause
or causes beyond the control of Landlord, nor in any event for any indirect or
consequential damages; and failure or omission on the part of Landlord to
furnish such service shall not be construed as an eviction of Tenant, nor work
an abatement of Rent, nor render Landlord liable in damages, nor release Tenant
from prompt fulfillment of any of the covenants under this Lease.
18.2 After-Hours Services to the Premises. If Tenant requires or requests
that the services to be furnished by Landlord (except Building standard
electricity and elevator service) be provided during periods in addition to the
periods set forth in Section 18.1, then Tenant shall obtain Landlord's consent
thereto and, if such consent is granted, shall pay upon demand Landlord's
additional expenses resulting therefrom. The cost for after-hours service is
Seventy-Five Dollars ($75.00) per hour. Landlord may, from time to time during
the Term, set a per hour charge for after-hours service which shall include the
cost of utility service, labor costs, administrative costs and a cost for
depreciation of the equipment used to provide such after-hours service.
18.3 Utility Charges. All telephone, electricity, gas, heat and other
utility service furnished to the Premises shall be paid for directly by Tenant
except to the extent the cost of same is included within, and paid for by Tenant
as part of, Operating Expenses. Landlord reserves the right separately to meter
or monitor the utility services provided to the Premises. The cost of any such
meter shall be borne by Tenant.
ARTICLE 19: LIABILITY OF LANDLORD
19.1 No Liability. Except where due to Landlord or its Agents' gross
negligence or willful misconduct, Landlord and its Agents shall not be liable to
Tenant or its Agents for, and Tenant, for itself and its Agents, does hereby
release Landlord and its Agents from liability for, any damage, compensation or
claim arising from (i) the necessity of repairing any portion of the Premises or
the Building or the Common Area or any structural defects thereto, (ii) any
interruption in the use of the Premises or the Common Area for any reason
including any interruption or suspension of utility service, (iii) fire or other
casualty or personal or property injury, damage or loss resulting from the use
or operation (by Landlord, Tenant, or any other person whomsoever) of the
Premises or the Building or the Common Area, (iv) the termination of this Lease,
(v) robbery, assault or theft, or (vi) any leakage in the Premises or the
Building from water, rain, snow or other cause whatsoever. No such occurrence
shall give rise to diminution or abatement of Rent or constructive eviction.
Notwithstanding the foregoing, any goods, automobiles, property or personal
effects stored or placed by Tenant or its Agents in or about the Premises, the
Building or the Common Area shall be at the sole risk of Tenant; Tenant
-16-
22
hereby expressly waives its right to recover against Landlord and its Agents
therefor. Tenant hereby waives any claim it might have against Landlord or its
Agents for any consequential damages or business losses sustained by Tenant
arising out of the loss or damage to any person or property of Tenant, or any
interruption in the use of the Premises or the Common Area, for any reason.
Tenant acknowledges its obligation to insure against such losses and damages.
19.2 Indemnity. Tenant shall indemnify, defend, protect and hold Landlord
and its Agents harmless from and against any and all damage, claim, liability,
cost or expense (including, without limitation, attorneys' or other
professionals' fees) of every kind and nature (including, without limitation,
those arising from any injury or damage to any person, property or business)
incurred by or claimed against Landlord or its Agents, directly or indirectly,
as a result of, arising from or in connection with (i) Tenant's or its Agents'
use and occupancy of the Premises, the Building or the Common Area; (ii)
Tenant's breach of any provision of this Lease; or (iii) any act, omission or
negligence of Tenant or its Agents.
ARTICLE 20: RULES AND REGULATIONS
Tenant and its Agents shall at all times abide by and observe the Rules and
Regulations attached hereto as Exhibit C and any amendments thereto that may be
promulgated from time to time by Landlord for the operation and maintenance of
the Building and the Common Area and the Rules and Regulations shall be deemed
to be covenants of the Lease to be performed and/or observed by Tenant. Nothing
contained in this Lease shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations, or the terms or provisions
contained in any other lease, against any other tenant of the Building. Landlord
shall not be liable to Tenant for any violation by any party of the Rules and
Regulations or the terms of any other Building lease. If there is any
inconsistency between this Lease and the Rules and Regulations, this Lease shall
govern. Landlord reserves the right to amend and modify the Rules and
Regulations as it deems necessary.
ARTICLE 21: DAMAGE; CONDEMNATION
21.1 Damage to the Premises. If the Premises shall be damaged by fire or
other cause without the fault or negligence of Tenant or its Agents, Landlord
shall diligently and as soon as practicable after such damage occurs (taking
into account the time necessary to effect a satisfactory settlement with any
insurance company involved) repair such damage at the expense of Landlord;
provided, however, that Landlord's obligation to repair such damage shall not
exceed the proceeds of insurance available to Landlord (reduced by any proceeds
retained pursuant to the rights of Mortgagee). Notwithstanding the foregoing,
(i) if more than twenty percent (20$) of the floor area of the Premises or the
Building is damaged or destroyed, or (ii) if the Premises or the Building is
damaged by fire or other cause to such an extent that, in Landlord's sole
judgment, the damage cannot be substantially repaired within one hundred eighty
(180) days after the date of such damage, or (iii) if the Premises are damaged
during the last two (2) Lease Years, then Landlord may terminate this Lease by
notice to Tenant within sixty (60) days from the date of such damage. During the
period that Tenant is deprived of the use of the damaged portion of the
Premises, and provided such damage is not the consequence of the fault or
negligence of Tenant or its Agents, Base Rent and Tenant's Proportionate Share
shall be
-17-
23
reduced by the ratio that the rentable square footage of the Premises damaged
bears to the total rentable square footage of the Premises before such damage.
All injury or damage to the Premises or the Building resulting from the fault or
negligence of Tenant or its Agents shall be repaired by Tenant, at Tenant's
expense, and Rent shall not xxxxx. If Tenant shall fail to do so or if Landlord
shall so elect, Landlord shall have the right to make such repairs, and any
expense so incurred by Landlord, together with interest thereon at the Interest
Rate, shall be paid by Tenant upon demand. Notwithstanding anything herein to
the contrary, Landlord shall not be required to rebuild, replace or repair any
non-standard tenant improvements, tenant extras or Alterations or any personal
property of Tenant.
21.2 Condemnation. If the whole or a Substantial Part of the Premises or
the Building shall be taken or condemned by any governmental or
quasi-governmental authority for any public or quasi-public use or purpose
(including, without limitation, sale under threat of such a taking), then the
Term shall cease and terminate as of the date when title vests in such
governmental or quasi-governmental authority, and Rent shall be prorated to the
date when title vests in such governmental or quasi-governmental authority. If
less than a Substantial Part of the Premises is taken or condemned by any
governmental or quasi-governmental authority for any public or quasi-public use
or purpose (including, without limitation, sale under threat of such a taking),
Base Rent and Tenant's Proportionate Share shall be reduced by the ratio that
the portion so taken bears to the rentable square footage of the Premises before
such taking, effective as of the date when title vests in such governmental or
quasi-governmental authority, and this Lease shall otherwise continue in full
force and effect. Tenant shall have no claim against Landlord (or otherwise) as
a result of such taking, and Tenant hereby agrees to make no claim against the
condemning authority for any portion of the amount that may be awarded as
compensation or damages as a result of such taking; provided, however, that
Tenant may, to the extent allowed by law, claim an award for moving expenses and
for the taking of any of Tenant's property (other than its leasehold interest in
the Premises) which does not, under the terms of this Lease, become the property
of Landlord at the termination hereof, as long as such claim is separate and
distinct from any claim of Landlord and does not diminish Landlord's award.
Tenant hereby assigns to Landlord any right and interest it may have in any
award for its leasehold interest in the Premises.
ARTICLE 22: DEFAULT
22.1 Events of Default. Each of the following shall constitute an Event of
Default: (i) Tenant fails to pay Rent within five (5) days after notice from
Landlord; provided that no such notice shall be required if at least two such
notices shall have been given during the same Lease Year; (ii) Tenant fails to
observe or perform any other term, condition or covenant herein binding upon or
obligating Tenant within fifteen (15) days after notice from Landlord, or, if
such failure cannot reasonably be corrected within fifteen (15) days, if Tenant
does not begin to correct the failure within fifteen (15) days after such notice
and/or does not thereafter diligently pursue the correction of such failure to
completion within thirty (30) days after said notice from Landlord; (iii) Tenant
abandons or vacates the Premises; (iv) Tenant or any Guarantor makes or consents
to a general assignment for the benefit of creditors or a common law composition
of creditors, or a receiver of the Premises or all or substantially all of
Tenant's or Guarantor's assets is appointed, or (v) Tenant or Guarantor files a
voluntary petition in any
-18-
24
bankruptcy or insolvency proceeding, or an involuntary petition in any
bankruptcy or insolvency proceeding is filed against Tenant or Guarantor and is
not discharged by Tenant or Guarantor within sixty (60) days.
22.2 Landlord's Remedies. Upon the occurrence of an Event of Default,
Landlord, at its option, without further notice or demand to Tenant, in addition
to all other rights and remedies provided in this Lease, at law or in equity,
shall have the right to elect any or all of the following remedies:
(i) Terminate this Lease and Tenant's right of possession of the
Premises, and recover all damages to which Landlord is entitled under law,
specifically including but without limitation, all of Landlord's expenses
of reletting (including, without limitation, rental concessions to new
tenants, repairs, Alterations, legal fees and brokerage commissions). If
Landlord elects to terminate this Lease, every obligation of the parties
shall cease as of the date of such termination, except that Tenant shall
remain liable for payment of Rent and performance of all other terms and
conditions of this Lease to the date of termination;
(ii) Terminate Tenant's right of possession of the Premises without
terminating this Lease, in which event Landlord may, but shall not be
obligated to, relet the Premises, or any part thereof, for the account of
Tenant, for such rent and term and upon such other conditions as are
acceptable to Landlord. For purposes of such reletting, Landlord is
authorized to redecorate, repair, alter and improve the Premises to the
extent necessary in Landlord's sole discretion. Until Landlord relets the
Premises, Tenant shall remain obligated to pay Rent to Landlord as provided
in this Lease. If and when the Premises are relet and if a sufficient sum
is not realized from such reletting after payment of all Landlord's
expenses of reletting (including, without limitation, rental concessions to
new tenants, repairs, Alterations, legal fees and brokerage commissions) to
satisfy the payment of Rent due under this Lease for any month, Tenant
shall pay Landlord any such deficiency upon demand. Tenant agrees that
Landlord may file suit to recover any sums due Landlord under this Section
from time to time and that such suit or recovery of any amount due Landlord
shall not be any defense to any subsequent action brought for any amount
not previously reduced to judgment in favor of Landlord
(iii) Terminate this Lease and Tenant's right of possession of the
Premises, and recover from Tenant the net present value of the Rent due
from the date of termination until the Expiration Date, discounted at the
lesser of the Interest Rate as of the date of termination or six percent
(6%) per annum;
(iv) Re-enter and repossess the Premises and remove all persons and
effects therefrom, by summary proceeding, ejectment or other legal action
or by using such force as may be necessary. Landlord shall have no
liability by reason of any such re-entry, repossession or removal; and/or
(v) Recover from Tenant, to the extent permitted under the laws of the
Commonwealth of Virginia, the value and/or cost of all concessions to
Tenant under this Lease.
-19-
25
22.3 Rights Upon Possession. If Landlord takes possession pursuant to this
Article, with or without terminating this Lease, Landlord may, at its option,
enter into the Premises, remove Tenant's Alterations, signs, personal property,
equipment and other evidences of tenancy, and store them at Tenant's risk and
expense or dispose of them as Landlord may see fit, and take and hold possession
of the Premises; provided, however, that if Landlord elects to take possession
only without terminating this Lease, such entry and possession shall not
terminate this Lease or release Tenant or any Guarantor, in whole or in part,
from the obligation to pay the Rent reserved hereunder for the full Term or from
any other obligation under this Lease or any guaranty thereof.
22.4 No Waiver. If Landlord shall institute proceedings against Tenant and
a compromise or settlement thereof shall be made, the same shall not constitute
a waiver of any other covenant, condition or agreement herein contained, nor of
any of Landlord's rights hereunder. No waiver by Landlord of any breach shall
operate as a waiver of such covenant, condition or agreement, or operate as a
waiver of such covenant, condition or agreement itself, or of any subsequent
breach thereof. No payment of Rent by Tenant or acceptance of Rent by Landlord
shall operate as a waiver of any breach or default by Tenant under this Lease.
No payment by Tenant or receipt by Landlord of a lesser amount than the monthly
installment of Rent herein stipulated shall be deemed to be other than a payment
on account of the earliest unpaid Rent, nor shall any endorsement or statement
on any check or communication accompanying a check for the payment of Rent be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such Rent or to
pursue any other remedy provided in this Lease. No re-entry by Landlord, and no
acceptance by Landlord of keys from Tenant, shall be considered an acceptance of
a surrender of the Lease.
22.5 Right of Landlord to Cure Tenant's Default. If an Event of Default
shall occur, then Landlord may (but shall not be obligated to) make such payment
or do such act to cure the Event of Default, and charge the amount of the
expense thereof, together with interest thereon at the Interest Rate, to Tenant.
Such payment shall be due and payable upon demand; however, the making of such
payment or the taking of such action by Landlord shall not be deemed to cure the
Event of Default or to stop Landlord from the pursuit of any remedy to which
Landlord would otherwise be entitled. Any such payment made by Landlord on
Tenant's behalf shall bear interest until paid at the Interest Rate.
22.6 Late Payment. If Tenant fails to pay any Rent within five (5) days
after such Rent becomes due and payable, Tenant shall pay to Landlord a late
charge of five percent (5%) of the amount of such overdue Rent. In addition, any
such late Rent payment shall bear interest from the date such Rent became due
and payable to the date of payment thereof by Tenant at the Interest Rate. Such
late charge and interest shall be due and payable within two (2) days after
written demand from Landlord.
22.7 Landlord Default. If Landlord shall fail to keep or perform any of its
obligations under this Lease, then Tenant may (but shall not be obligated to do
so) upon the continuance of such failure on Landlord's part for twenty (20) days
after Landlord's receipt of notice from Tenant specifying the failure (or, in
the case of any such failure which cannot with due diligence be cured within
twenty (20) days, within such additional period, if any, as may be reasonably
-20-
26
required by Landlord to cure such failure with due diligence), and without
waiving or releasing Landlord from any obligation, make such payment or perform
such obligation and all sums so paid by Tenant and all necessary and incidental
costs and expenses, including reasonable attorney's fees paid to independent
legal counsel, incurred by Tenant in making such payment or performing such
obligation, together with interest thereon at the Interest Rate from the date of
payment, shall be paid by Landlord to Tenant on demand, and if not so paid by
Landlord, Tenant shall have the right to pursue any legal remedies available to
it to collect payment, and, only in the event that a judgment against Landlord
is obtained, shall be entitled to offset such payment against Rent thereafter
payable under this Lease.
ARTICLE 23: MORTGAGES
23.1 Subordination. This Lease is subject and subordinate to all ground or
underlying leases and to any first Mortgage(s) which may now or hereafter affect
such ground or underlying leases or the Land or the Building and to all
renewals, modifications, consolidations, replacements and extensions thereof.
This subordination shall be self-operative; however, in confirmation thereof,
Tenant shall execute promptly any instrument that Landlord or any first
Mortgagee may request confirming such subordination. Notwithstanding the
foregoing, before any foreclosure sale under a Mortgage, the Mortgagee shall
have the right to subordinate the Mortgage to this Lease, and, in the event of a
foreclosure, this Lease may continue in full force and effect and Tenant shall
attorn to and recognize as its landlord the purchaser of Landlord's interest
under this Lease. Tenant shall, upon the request of a Mortgagee or purchaser at
foreclosure, execute, acknowledge and deliver any instrument that has for its
purpose and effect the subordination of the lien of any Mortgage to this Lease
or Tenant's attornment to such Purchaser. Tenant waives its rights under any
statute or law now or hereafter in effect which may give Tenant any right to
terminate or otherwise adversely affect this Lease in the event any foreclosure
proceeding ordered in lieu of foreclosure is brought under any Mortgage.
23.2 Mortgagee Protection. Tenant agrees to give any Mortgagee by certified
mail, return receipt requested, a copy of any notice of default served upon
Landlord, provided that before such notice Tenant has been notified in writing
of the address of such Mortgagee. Tenant further agrees that if Landlord shall
have failed to cure such default within the time provided for in this Lease,
then Mortgagee shall have an additional thirty (30) days within which to cure
such default; provided, however, that if such default cannot be reasonably cured
within that time, then such Mortgagee shall have such additional time as may be
necessary to cure such default so long as Mortgagee has commenced and- is
diligently pursuing the remedies necessary to cure such default (including,
without limitation, the commencement of foreclosure proceedings, if necessary),
in which event this Lease shall not be terminated or Rent abated while such
remedies are being so diligently pursued. In the event of the sale of the Land
or the Building, by foreclosure or deed in lieu thereof, the Mortgagee or
purchaser at such sale shall be responsible for the return of the Security
Deposit only to the extent that such Mortgagee or purchaser actually received
the Security Deposit.
23.3 Modification Due to Financing. If, in connection with obtaining
construction or permanent financing for the Premises, the Building or the Land,
any lender (or Mortgagee) shall request reasonable modifications of this Lease
as a condition to such financing, Tenant shall promptly execute a modification
of this Lease, provided such modifications do not materially
-21-
27
increase the financial obligations of Tenant hereunder or materially adversely
affect the leasehold interest hereby created or Tenant's reasonable use and
enjoyment of the Premises. Tenant and any Guarantor shall each, prior to
execution and throughout the Term, upon request from time to time, provide such
financial information and documentation about itself to Landlord or Mortgagee as
may be requested.
ARTICLE 24: SURRENDER; HOLDING OVER
24.1 Surrender of the Premises. Tenant shall peaceably surrender the
Premises to Landlord on the Expiration Date or earlier termination of this
Lease, in broom-clean condition and in as good condition as when Tenant took
possession, including, without limitation, the repair of any damage to the
Premises caused by the removal of any of Tenant's personal property or trade
fixtures from the Premises, except for reasonable wear and tear and loss by fire
or other casualty not caused by Tenant or its Agents. Any of Tenant's personal
property left on or in the Premises, the Building or the Common Area after the
Expiration Date or earlier termination of this Lease shall be deemed to be
abandoned, and, at Landlord's option, title shall pass to Landlord under this
Lease.
24.2 Holding Over. In the event that Tenant shall not immediately surrender
the Premises to Landlord on the Expiration Date or earlier termination of this
Lease, Tenant shall be deemed to be a month to month tenant upon all of the
terms and provisions of this Lease, except the monthly Base Rent shall be
one-hundred fifty percent (150$) of the monthly Base Rent in effect during the
last month of the Term. Notwithstanding the foregoing, if Tenant shall hold over
after the Expiration Date or earlier termination of this Lease, and Landlord
shall desire to regain possession of the Premises, then Landlord may forthwith
re-enter and take possession of the Premises without process, or by any legal
process in force in the Commonwealth of Virginia. Tenant shall indemnify
Landlord against all liabilities and damages sustained by Landlord by reason of
such retention of possession.
ARTICLE 25: QUIET ENJOYMENT
Landlord covenants that if Tenant shall pay Rent and perform all of the
terms and conditions of this Lease to be performed by Tenant, Tenant shall
during the Term peaceably and quietly occupy and enjoy possession of the
Premises without molestation or hindrance by Landlord or any party claiming
through or under Landlord, subject to the provisions of this Lease and any
Mortgage to which this Lease is subordinate and easements, conditions and
restrictions of record affecting the Land.
ARTICLE 26: HAZARDOUS MATERIALS
26.1 Prohibition. Tenant shall not cause or permit any Hazardous Material
to be brought upon, kept or used in or about the Premises by Tenant, its agents,
employees, contractors or invitees, except for minimal quantities of such
Hazardous Materials as is necessary for the operation of Tenant's office
equipment.
-22-
28
26.2 Compliance. Any Hazardous Material permitted on the Premises as
provided in Section 26.1, and all containers therefor, shall be used, kept,
stored and disposed of in a manner that complies with all federal, state and
local laws or regulations applicable to any such Hazardous Material.
26.3 No Contamination. Tenant shall not discharge, leak or emit, or permit
to be discharged, leaked or emitted, any material into the atmosphere, ground,
sewer system or any body of water, if such material (as reasonably determined by
the Landlord or any government authority) does or may, pollute or contaminate
the same, or may adversely affect (a) the health, welfare or safety or persons,
whether located on the Premises or elsewhere, or (b) the condition, use or
enjoyment of the Building or any other real or personal property.
26.4 Disclosure. At the commencement of each Lease Year, Tenant shall
disclose to Landlord the names and approximate amounts of all Hazardous Material
which Tenant intends to store, use or dispose of on the Premises in the coming
Lease Year. In addition, at the commencement of each Lease Year, beginning with
the second Lease Year, Tenant shall disclose to Landlord the names and amounts
of all Hazardous Materials which were actually used, stored or disposed of on
the Premises if such materials were not previously identified to Landlord at the
commencement of the previous Lease Year.
26.5 Definition. As used herein, the term "Hazardous Material" means (a)
any "hazardous waste" as defined by the Resource Conservation and Recovery Act
of 1976, as amended from time to time, and regulations promulgated thereunder;
(b) any "hazardous substance" as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
and regulations promulgated thereunder; (c) any "oil, petroleum products, and
their byproducts; and (d) any substance which is or becomes regulated by any
federal, state or local governmental authority.
26.6 Indemnity. Tenant hereby agrees that it shall be fully liable for all
costs and expenses related to the use, storage and disposal of Hazardous
Material kept on the Premises by the Tenant, and the Tenant shall give immediate
notice to the Landlord of any violation or potential violation of the provisions
of this Article 26. Tenant shall defend, indemnify and hold harmless Landlord
and its Agents, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs, or expenses (including without
limitation, attorney and consultant fees, court costs and litigation expenses)
of whatever kind or nature, known or unknown, contingent or otherwise, arising
out of or in any way related to (a) the presence, disposal, release, or
threatened release of any such Hazardous Material which is on, from, or
affecting the soil, water, vegetation, buildings, personal property, persons,
animals, or otherwise; (b) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to such Hazardous
Material; (c) any lawsuit brought or threatened, settlement reached or
government order relating to such Hazardous Material; and/or (d) any violation
of any laws applicable thereto. The provisions of this Section 26.6 shall be in
addition to any other obligations and liabilities Tenant may have to Landlord at
law or equity and shall survive the transactions contemplated herein and shall
survive the termination of this Lease.
-23-
29
ARTICLE 27: MISCELLANEOUS
27.1 No Representations by Landlord. Tenant acknowledges that neither
Landlord or its Agents nor any broker has made any representation or promise
with respect to the Premises, the Building, the Land or the Common Area, except
as herein expressly set forth, and no rights, privileges, easements or licenses
are acquired by Tenant except as herein expressly set forth. Tenant, by taking
possession of the Premises shall accept the Premises and the Building in their
condition existing on the date of possession, and such taking of possession
shall be conclusive evidence that the Premises and the Building are in good and
satisfactory condition at the time of such taking of possession.
27.2 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between Landlord and
Tenant, or to create any other relationship between Landlord and Tenant other
than that of landlord and tenant.
27.3 Brokers. Landlord recognizes Broker(s) as the sole broker(s) procuring
this Lease and shall pay Broker(s) a commission therefor pursuant to a separate
agreement between Broker(s) and Landlord. Tenant represents and warrants to
Landlord that it has not employed any broker, agent or finder other than
Broker(s) relating to this Lease. Tenant shall indemnify and hold Landlord
harmless, from and against any claim for brokerage or other commission arising
from or out of any breach of Tenant's representation and warranty.
27.4 Estoppel Certificate. Tenant shall, without charge, at any time and
from time to time, within five (5) days after request therefor by Landlord,
Mortgagee, any purchaser of the Land or the Building or any other interested
person, execute, acknowledge and deliver to such requesting party a written
estoppel certificate certifying, as of the date of such estoppel certificate,
the following: (i) that this Lease is unmodified and in full force and effect
(or if modified, that the Lease is in full force and effect as modified and
setting forth such modifications); (ii) that the Term has commenced (and setting
forth the Commencement Date and Expiration Date); (iii) that Tenant is presently
occupying the Premises; (iv) the amounts of Base Rent and Additional Rent
currently due and payable by Tenant; (v) that any Alterations required by the
Lease to have been made by Landlord have been made to the satisfaction of
Tenant; (vi) that there are no existing set-offs, charges, liens, claims or
defenses against the enforcement of any right hereunder, including, without
limitation, Base Rent or Additional Rent (or, if alleged, specifying the same in
detail); (vii) that no Base Rent (except the first installment thereof) has been
paid more than thirty (30) days in advance of its due date; (viii) that Tenant
has no knowledge of any then uncured default by Landlord of its obligations
under this Lease (or, if Tenant has such knowledge, specifying the same in
detail); (ix) that Tenant is not in default; (x) that the address to which
notices to Tenant should be sent is as set forth in the Lease (or, if not,
specifying the correct address); and (xi) any other certifications requested by
Landlord. In addition, within five (5) days after request by Landlord, Tenant
shall deliver to Landlord audited financial statements of Tenant for its most
recently ended fiscal year and interim unaudited financial statements for its
most recently ended quarter.
27.5 Waiver of Jury Trial. Tenant hereby waives trial by jury in any
action, proceeding or counterclaim brought by Landlord against Tenant with
respect to any matter whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord
-24-
30
and Tenant hereunder or Tenant's use or occupancy of the Premises. In the event
Landlord commences any proceedings for nonpayment of Rent, Tenant shall not
interpose any counterclaims. This shall not, however, be construed as a waiver
of Tenant's right to assert such claims in any separate action brought by
Tenant.
27.6 Notices. All notices or other communications hereunder shall be in
writing and shall be deemed duly given if delivered in person or upon the
earlier of receipt, if mailed by certified or registered mail, or three (3) days
after certified or registered mailing, return receipt requested, postage
prepaid, addressed and sent, if to Landlord to Landlord's Address specified in
Section 1.15 or if to Tenant to Tenant's Address specified in Section 1.16.
Landlord and Tenant may from time to time by written notice to the other
designate another address for receipt of future notices. Notices from Landlord's
managing agent shall be deemed notices from Landlord.
27.7 Invalidity of Particular Provisions. If any provisions of this Lease
or the application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the full extent permitted by law.
27.8 Gender and Number. All terms and words used in this Lease, regardless
of the number or gender in which they are used, shall be deemed to include any
other number or gender as the context may require.
27.9 Benefit and Burden. Subject to the provisions of Article 11 and except
as otherwise expressly provided, the provisions of this Lease shall be binding
upon, and shall inure to the benefit of, the parties hereto and each of their
respective representatives, heirs, successors and assigns. Landlord may freely
and fully assign its interest hereunder, and following any such assignment shall
be fully released from any and all liabilities and obligations under this Lease
thereafter accruing.
27.10 Entire Agreement. This Lease (which includes the Exhibits and Riders,
if any, attached hereto) contains and embodies the entire agreement of the
parties hereto, and no representations, inducements or agreements, oral or
otherwise, between the parties not contained in this Lease shall be of any force
or effect. This Lease (other than the Rules and Regulations, which may be
changed from time to time as provided herein) may not be modified, changed or
terminated in whole or in part in any manner other than by an agreement in
writing duly signed by Landlord and Tenant.
27.11 Authority. If Tenant signs as a corporation, the person executing
this Lease on behalf of Tenant hereby represents and warrants that Tenant is a
duly formed and validly existing corporation, in good standing, qualified to do
business in the Commonwealth of Virginia, that the corporation has full power
and authority to enter into this Lease and that he or she is authorized to
execute this Lease on behalf of the corporation.
(i) If Tenant signs as a partnership, the person executing this Lease
on behalf of Tenant hereby represents and warrants that Tenant is a duly
formed, validly existing
-25-
31
partnership qualified to do business in the Commonwealth of Virginia, that
the partnership has full power and authority to enter into this Lease, and
that he or she is authorized to execute this Lease on behalf of the
partnership.
27.12 Attorneys' Fees. If, as a result of any default of Landlord or Tenant
in its performance of any of the provisions of this Lease, the other party uses
the services of an attorney in order to secure compliance with such provisions
or recover damages therefor, or to terminate this Lease or evict Tenant, the
non-prevailing party shall reimburse the prevailing party upon demand for any
and all attorneys' fees and expenses so incurred by the prevailing party.
27.13 Interpretation. This Lease is governed by the laws of the
Commonwealth of Virginia.
27.14 No Personal Liability Sale. Neither Landlord nor its Agents, whether
disclosed or undisclosed, shall have any personal liability under any provision
of this Lease. In the event of a judgment in favor of Tenant which remains
unpaid, Tenant's right of redress, execution and levy shall be limited to
Landlord's equity in the Building as described in Article 1 hereof. In the event
that the original Landlord hereunder, or any successor owner of the Building,
shall sell or convey the Building, all liabilities and obligations on the part
of the original Landlord, or such successor owner, under this Lease occurring
thereafter shall terminate as of the day of such sale, and thereupon all such
liabilities and obligations shall be binding on the new owner. Tenant agrees to
attorn to such new owner. Any successor to Landlord's interest shall not be
bound by (i) any payment of Base Rent or Additional Rent for more than one (1)
month in advance, except for the payment of the first installment of First Year
Base Rent or (ii) as to any Mortgagee or any purchaser at foreclosure, any
amendment or modification of this Lease made without the consent of such
Mortgagee.
27.15 Time of the Essence. Time is of the essence as to Tenant's
obligations contained in this Lease.
27.16 Force Majeure. Except for Tenant's obligations to pay Rent under this
Lease, neither Landlord nor Tenant shall be required to perform any of its
obligations under this Lease, nor shall such party be liable for loss or damage
for failure to do so, nor shall the other party thereby be released from any of
its obligations under this Lease, where such failure by the non-performing party
arises from or through acts of God, strikes, lockouts, labor difficulties,
explosions, sabotage, accidents, riots, civil commotions, acts of war, results
of any warfare or warlike conditions in this or any foreign country, fire or
casualty, legal requirements, energy shortage or other causes beyond the
reasonable control of the non-performing party, unless such loss or damage
results from the willful misconduct or gross negligence of the non-prevailing
party.
27.17 Headings. Captions and headings are for convenience of reference
only.
27.18 Memorandum of Lease. Tenant shall, at the request of Landlord,
execute and deliver a memorandum of lease in recordable form. Tenant shall not
record this Lease or any such memorandum of this Lease.
-26-
32
27.19 Landlord's Relocation Option. At any time during the Term, Landlord
shall have the option to relocate Tenant, at no direct cost of Tenant, to space
comparable to the Premises elsewhere in the Building or the Building located at
0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx, provided Landlord gives Tenant
three (3) months' written notice. Upon relocation, such new space shall be
deemed to be the "Premises" hereunder, and Tenant's Proportionate Share shall be
recalculated by Landlord to equal that fraction, the numerator of which is the
rentable square footage of the Premises and the denominator of which is the
rentable square footage of the Building (as reasonably determined by Landlord).
27.20 Attorney-in-Fact. If Tenant fails or refuses to execute and deliver
any instrument or certificate required to be delivered by Tenant hereunder
(including, without limitation, any instrument or certificate required under
Article 23 or Section 27.4 hereof) within the time periods required herein, then
Tenant hereby appoints Landlord as its attorney-in-fact with full power and
authority to execute and deliver such instrument or certificate for and in the
name of Tenant.
27.21 Effectiveness. The execution of this Lease by Tenant and delivery of
the same and of any Trust or Security Deposit to Landlord or its Agent does not
constitute a reservation of or option for the Premises or an agreement to enter
into a lease, and this Lease shall become effective only if and when Landlord
executes and delivers the same to Tenant; provided, however, that execution and
delivery of this Lease to Landlord or its Agent by Tenant shall constitute an
irrevocable offer by Tenant to lease the Premises on the terms and conditions
herein contained, which offer may not be withdrawn or revoked for thirty (30)
days after such execution and delivery.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under seal
as of the Date of Lease.
ATTEST/WITNESS: LANDLORD:
FAIR GROVE PROPERTIES, L.L.C.,
a Delaware limited liability company
-----------------------------------
By: Fair Grove Properties, Inc.
its sole Member
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx, Vice President
ATTEST/WITNESS: TENANT:
XXXXX.XXX,
/s/ Xxxxxx Xxxxxxx a
----------------------------------- ----------------------------------
By: /s/ Xxx Xxxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxxx, Chief Executive
Officer
-27-
33
EXHIBIT A
(Plan Showing Premises)
A-1
34
EXHIBIT B
RULES AND REGULATIONS
The following rules and regulations have been formulated for the safety and
well-being of all the tenants of the Building and become effective upon
occupancy. Strict adherence to these rules and regulations is necessary to
guarantee that each and every tenant will enjoy a safe and unannoyed occupancy
in the Building. Any repeated or continuing violation of these rules and
regulations by Tenant after notice from Landlord, shall be sufficient cause for
termination of this Lease at the option of Landlord.
Landlord may, upon request by any tenant, waive the compliance by such
tenant of any of the foregoing rules and regulations provided that (i) no waiver
shall be effective unless signed by Landlord or Landlord's authorized agent;
(ii) any such waiver shall not relieve such tenant from the obligation to comply
with such rule or regulation in the future unless expressly consented to by
Landlord, and (iii) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with the foregoing rules and regulations
unless such other tenant has received a similar waiver in writing from Landlord.
1. The sidewalks, walks, plaza entries, corridors, concourses, ramps,
staircases, escalators, and elevators of the Project shall not be
obstructed or used by Tenant, or the employees, agents, servants, visitors
or licensees of Tenant for any purpose other than ingress and egress to and
from the Premises. No bicycle or motorcycle shall be brought into the
Building or kept on the Premises without the prior written consent of
Landlord.
2. No freight, furniture or bulky matter of any description will be received
into the Building or carried into the elevators except in such a manner,
during such hours and using such elevators and passageways as may be
approved by Landlord, and then only upon having been scheduled in advance.
Any hand trucks, carryalls, or similar equipment used for the delivery or
receipt of merchandise or equipment shall be equipped with rubber tires,
side guards and such other safeguards as Landlord shall require.
3. Landlord shall have the right to prescribe the weight, position and manner
of installation of safes or other heavy equipment which shall, if
considered necessary by Landlord, be installed in a manner which shall
insure satisfactory weight distribution. All damage done to the Building by
reason of a safe or any other article of Tenant's office equipment being on
the Premises shall be repaired at the expense of the Tenant. The time,
routing, and manner of moving of safes or other heavy equipment shall be
subject to prior approval by Landlord.
4. Only persons authorized by Landlord will be permitted to furnish newspaper,
ice, drinking water, towels, barbering, shoe shining, janitorial services,
floor polishing, and other similar services and concessions to Tenant, and
only at hours and under regulations fixed by Landlord. Tenant shall use no
other method of heating or cooling than that supplied by Landlord.
5. Tenant, or the employees, agents, servants, visitors or licensees of Tenant
shall not at any time or place, leave or discard any rubbish, paper,
articles or objects of any kind
B-1
35
whatsoever outside the doors of the Premises or in the corridors or
passageways of the Building. No animals or birds shall be brought or kept
in or about the Building.
6. Landlord shall have the right to prohibit any advertising by Tenant which,
in Landlord's opinion, tends to impair the reputation of the Building of
its desirability for offices, and upon written notice from Landlord, Tenant
will refrain from or discontinue such advertising.
7. Tenant shall not place or cause or allow to be placed, any sign, placard,
picture, advertisement, notice or lettering whatsoever, in, about or on the
exterior of the Premises or the Building except in and at such places as
may be designated by Landlord and consented to by Landlord in writing. Any
such sign, placard, advertisement, picture, notice or lettering so placed
may be removed by Landlord without notice to and at the expense of Tenant.
All lettering and graphics on corridor doors shall conform to the building
standard prescribed by Landlord. No trademark shall be displayed in any
event.
8. Canvassing, soliciting or peddling in the Building is prohibited and Tenant
shall cooperate to prevent same.
9. Landlord shall have the right to exclude any person from the Building other
than during the customary business hours as set forth in the Lease, and any
person in the Building will be subject to identification by employees and
agents of Landlord. All persons in or entering the Building shall be
required to comply with the security policies of the Building. If Tenant
desires any additional security service for the Premises, Tenant shall have
the right with the advance written consent of Landlord) to obtain such
additional service at Tenant's sole cost and expense. Tenant shall keep
doors to unattended areas locked and shall otherwise exercise reasonable
precautions to protect property from theft, loss or damage of any property
or for any error with regard to the exclusion from or admission to the
Building of any person. In case of invasion, mob, riot or public
excitement, the Landlord reserves the right to prevent access to the
Building during the continuance of same by closing the doors or taking
other measures for the safety of the tenants and protection of the Building
and property of persons therein.
10. Only workmen employed, designated or approved by Landlord may be employed
for repairs, installations, alterations, [Page missing from original.]
17. Tenant shall not use or permit any portion of the Premises to be used as an
office for a public stenographer or typist, offset printing, the sale of
liquor or tobacco, a xxxxxx or manicure shop, an employment bureau, a labor
union office, a doctor's or dentist's office, a dance or music studio, any
type of school or for any use other than those specifically granted in this
lease.
18. Tenant shall not advertise for laborers giving the Premises as an address,
nor pay such laborers at a location in the Premises.
19. The requirements of Tenant will be attended to only upon application at the
office of Landlord in the Building or at such other address as may be
designated by Landlord in
B-2
36
the Lease. Employees of Landlord shall not perform any work or do anything
outside of their regular duties, unless under special instructions from the
office of Landlord.
20. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. Business machines and mechanical and electrical
equipment belonging to Tenant which cause noise, vibrations, electrical or
magnetic interference, or any other nuisance that may be transmitted to the
structure or other portion portions of the Building or to the Premises to
such a degree as to be objectionable to Landlord or which interfere with
the use or enjoyment by other tenants of their premises or the public
portions of the Building, shall be placed and maintained by Tenant, at
Tenant's expense, in settings of cork, rubber, spring type or other
vibration eliminators sufficient to eliminate noise or vibration.
21. No awnings, draperies, shutters or other interior or exterior window
coverings that are visible from the exterior of the Building or from the
exterior of the Premises within the Building may be installed by Tenant.
22. Tenant shall not place, install or operate within the Premises or any other
part of the Building any engine, stove or machinery, or conduct mechanical
operations therein, without the written consent of Landlord.
23. No portion of the Premises or any other part of the Building shall at any
time be used or occupied as sleeping or lodging quarters.
24. Tenant shall at all times keep the Premises neat and orderly.
25. All request for overtime air conditioning or heating must be submitted to
the Management office by no later than 2:00 p.m. on the last prior business
day.
26. The toilet rooms, urinals, wash bowls, and other apparatus shall not be
used for any purpose other than that for which they were constructed and no
foreign substance of any kind.
B-3
