Exhibit 10.21
Lease Between
V-SULLYFIELD PROPERTIES II, LLC
(Lessor)
&
WESTWOOD COMPUTER CORPORATION
(Lessee)
April 21 , 2003
TABLE OF CONTENTS
1. PREMISES : ....................................................1
2. TERM AND DELIVERY OF THE DEMISED PREMISES: ....................1
3. RENT: .........................................................2
4. REPAIR AND MAINTENANCE: .......................................2
5. COMPLIANCE WITH REQUIREMENTS OF LAW: ..........................3
6. UTILITIES: ....................................................3
7. ALTERATIONS : .................................................3
8. ACCESS: .......................................................3
9. SIGNAGE : .....................................................3
10. USE: ..........................................................3
11. LIABILITY: ....................................................4
12. SURRENDER AND TERMINATION: ....................................4
13. INDEMNITY: ....................................................4
14. NO WAIVER: ....................................................5
15. SUBORDINATION: ................................................5
16. INSURANCE :....................................................6
17. DEFAULT: ......................................................6
18. LESSOR'S REMEDIES : ...........................................7
19. DESTRUCTION - FIRE OR OTHER CAUSE: ............................8
20. LEGAL FEES: ...................................................9
21. CONDEMNATION: .................................................9
22. ASSIGNMENT AND SUBLETTING: ...................................10
23. PARKING: .....................................................12
24. KEYS: ........................................................12
25. MECHANICS' LIENS: ............................................12
26. NOTICES: .....................................................12
27. LESSEE'S PROPORTIONATE SHARE: ................................13
28. SECURITY SERVICES: ...........................................16
29. "AS IS": .....................................................16
30. WAIVER OF JURY AND COUNTERCLAIM: .............................16
31. SECURITY: ....................................................16
32. VIRGINIA LAW: ................................................17
33. BROKER: ......................................................17
34. RECORDING: ...................................................17
35. RULES AND REGULATIONS :.......................................17
36. FAILURE TO DELIVER POSSESSION: ...............................17
37. WAIVER OF LIABILITY : ........................................17
38. RIGHT OF LESSOR TO DISCHARGE OBLIGATIONS OF LESSEE: ..........18
39. SERVICE CONTRACTS; ...........................................18
40. BINDING ON SUCCESSORS, ETC.: .................................18
41. LATE CHARGE: .................................................18
42. EXECUTION OF LEASE: ..........................................18
43. MORTGAGEE PROTECTION CLAUSE: .................................19
44. PARTIAL INVALIDITY: ..........................................19
45. HOLDING OVER: ................................................19
46. HAZARDOUS MATERIALS : ........................................19
47. ESTOPPEL CERTIFICATE: ........................................20
48. FINANCIAL STATEMENTS: ........................................20
49. EXCULPATION OF LESSOR ........................................20
50. BANKRUPTCY ...................................................20
51. FORCE MAJEURE : ..............................................23
52. CONTROL OF COMMON AREAS AND PARKING FACILITIES: ..............23
53. CONDITIONS PRECEDENT .........................................24
54. INTERFERENCE: ................................................24
55. ADA : ........................................................24
56. REPRESENTATIONS OF LESSEE: ...................................24
57. RESTRICTED AREAS : ...........................................25
DEED OF LEASE
THIS DEED OF LEASE ("Lease") made and entered into this 21st day of April,
2003, by and between V-Sullyfield Properties II, LLC, a Virginia limited
liability company, having an address c/o Velsor Properties, LLC, 0000 Xxxxxx
Xxxx Xxxx, Xxxxx 000, XxXxxx, Xxxxxxxx, 00000, hereinafter referred to as
"Lessor", and Westwood Computer Corporation., a New Jersey corporation., having
an address of 00 Xxxxxxx Xxxx, Xxxxxxxxxxx, XX, 00000-0000, hereinafter referred
to as "Lessee".
WITNESSETH: 1.
PREMISES:
a. Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, the following described office and warehouse space (the "demised
premises"):
Floor: 1st
Suite: Suite 111
Square Feet: 3,286 rentable square feet
Lessee's Share: 1.51%
b. The demised premises are more particularly shown and outlined on the
space plans attached hereto as Exhibit A, and made a part hereof, designated as
Suite 111 (left side) in a building (the "Building") having a mailing address of
00000 Xxxxx-Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx and which office space is
hereinafter referred to as the "Demised Premises." Lessor and Lessee agree that
the Demised Premises contains Three Thousand Two Hundred Eighty-Six (3,286)
rentable square feet of space (including both Lessee's exclusive usable area
contained in the demised premises and common areas attributable to Lessee's
usable area). The demised premises are located in a building located in a
business park (the "Business Park") commonly known as "Dulles Corporate Center
at Sullyfield Business Park." Lessee's interest in this Lease is subject to all
covenants and restrictions of record and all applicable zoning, municipal,
county, state and federal laws, statutes, codes, ordinances, rules and
regulations affecting the Office Park. The Building, together with the land upon
which the Building is located, which land is described on Exhibit B attached
hereto and by reference incorporated herein (the "Land"), and together with all
drives, parking areas, parking lots, walkways, terraces and landscaped areas
used and maintained in connection with the Building and/or such Land that are
contiguous to such Land (regardless of whether in fact located within the
boundaries of such Land) are herein collectively referred to as the "Property").
c. Subject to the terms herein provided, the demised premises shall
include the appurtenant right to use, in common with others, on a non-exclusive
basis, public lobbies, entrances, stairs, corridors, elevators, all drives,
parking areas, parking lots and other public portions of the Property. All the
windows and outside walls of the demised premises, and any space in the demised
premises used for shafts, pipes, conduits, ducts, telephone ducts and equipment,
electric or other utilities, sinks or other Building facilities, and the use
thereof and access thereto through the demised premises for the purposes of
operation, maintenance, inspection, display and repairs are hereby reserved to
Lessor. No easement for light, air or view, is granted or implied hereunder, and
the reduction or elimination of Lessee's light, air or view will not affect
Lessee's liability under this Lease.
2. TERM AND DELIVERY OF THE DEMISED PREMISES:
a. The term of this Lease (the "Term") shall commence on the date
Landlord notifies Tenant in writing that the Demised Premises are ready for
occupancy (the "Commencement Date"), provided that the Commencement Date shall
not be later than August 1, 2003. The Term shall end at midnight on July 31,
2006 (the "Expiration Date") or on such earlier date as the Term may expire or
be terminated pursuant to the provisions of this Lease or pursuant to law. This
Lease shall be effective and enforceable between Lessor and Lessee upon its
execution and delivery, whether such execution and delivery occurs on, prior to,
or after the Commencement Date. Landlord anticipates, but does not guarantee,
that the Commencement Date will occur between May 15 and June 1, 2003.
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b. "Lease Year" as used herein shall mean (i) each and every twelve
(12) month period during the Term of this Lease, or (ii) in the event of Lease
expiration or termination, the period between the end of the then most recently
completed twelve (12) month period and said expiration or termination. The first
such twelve (12) month period shall commence on the Commencement Date.
3. RENT:
a. As annual base rent for the demised premises, Lessee shall pay to
Lessor the following:
Annual Rent Per Square
Foot
----------------------------------
5/_/03 -- 7/31/04 $39,432.00 $12.00
-----------------------------------------------------------------
8/1/04 -- 7/31/05 $41,009.28 $12.48
-----------------------------------------------------------------
8/1/05 -- 7/31/06 $42,649.65 $13.00
123,091
b. Base rent stipulated for each of the applicable lease years shall be
paid in equal one-twelfth (1/12th) installments in advance on the first day of
each calendar month for the applicable lease year. Base rent and all other items
of rent or payments due Lessor under this Lease shall be paid to Lessor at the
address of Lessor set forth above or at such other address and/or to such other
party as Lessor may, from time to time, designate by written notice to Lessee in
the manner hereafter set forth.
x. Xxxxxx hereby acknowledges receipt of Lessee's check, subject to
collection, in the amount of Nine Thousand Eight Hundred Fifty-Eight and No/100
Dollars ($9,858.00),' representing payment of the initial security deposit
required by paragraph 31 of this Lease.
x. Xxxxxx hereby acknowledges receipt of Lessee's check, subject to
collection, in the amount of Three Thousand Two Hundred Eighty-Six and No/100
Dollars ($3,286.00), representing payment of one (1) month of base rent in
advance.
e. Lessee covenants and agrees to pay all licenses, taxes, sales taxes
and assessments of every kind and character imposed by any governmental body,
on, against or in connection with the operation of the business conducted on the
demised premises, or against Lessee's property in or on the demised premises or
on any installment of base rent or item of additional rent or other charge
payable by Lessee under this Lease.
4. REPAIR AND MAINTENANCE:
Lessor shall (other than for any repairs or replacements required as a
result of the acts or omissions or negligence of Lessee, its agents, officers
and its and their employees or invitees) maintain in good condition, comparable
to similar buildings in Fairfax County, Virginia, the roof and structural
portions of the Building, all landscaping, curbing, sidewalks, roads, parking
areas, driveways and all interior and exterior common areas of the Building and
systems used in common by the tenants of the Building and generally keep the
same clean. Lessee will maintain in good order, condition and repair (including
replacements) the entire demised premises, including all doors and door frames,
windows, fixtures, machinery and equipment therein. Garbage and refuse shall be
stored at such locations and in such containers as shall be approved by Lessor,
and if required by Lessor or any municipal or governmental directive, Lessee
shall sort and separate its trash and refuse as it shall be directed by Lessor
or the applicable municipal or governmental authority, as the case may be.
Lessee agrees that extraordinary waste, such as crates, cartons, boxes, etc.
(the discarding of used furniture or equipment being deemed extra-ordinary
waste) shall be removed from the Building and disposed of by Lessor, at Lessee's
cost and expense, and that Lessee, upon Lessor's demand, will promptly reimburse
Lessor for such removal and disposal. Lessee shall be responsible for repairs
and restoration to the demised premises resulting from, occasioned by, or
arising from, any break-ins, burglaries or attempted break-ins or burglaries in,
on or to the demised premises.
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5. COMPLIANCE WITH REQUIREMENTS OF LAW:
Lessee, at its sole cost and expense, shall promptly comply with all laws,
statutes, ordinances, rules, orders, regulations and requirements of the
federal, state, county and local government and of any and all of their
departments and bureaus with jurisdiction over the demised premises, and with
any directives of any public officer or officers which shall impose any
violation, order or duty upon Lessor or Lessee with respect to the demised
premises and/or relate to the correction, prevention and/or abatement of
nuisances or other grievances in, upon or connected with the demised premises
during the term hereof. Lessee shall, at Lessee's own cost and expense, also
promptly comply with and obey all rules, orders and regulations of all Lessor's
insurance carriers and any fire underwriting or rating authority. Any
governmental or municipal permits, approvals or consents required in order for
Lessee to be able to use the demised premises for the purposes for which Lessee
intends, and is permitted hereunder, shall be obtained by Lessee, at Lessee's
sold cost and expense, and any failure of Lessee to obtain such permits,
approvals or consents shall not relieve Lessee of its obligations hereunder.
6. UTILITIES:
Lessee shall be responsible for procuring directly from the providers
selected by Lessor of all utility services, and paying to such providers the
costs and expenses of all utilities and services used on the demised premises
during the term of this Lease except water used for drinking and lavatory
purposes. In the event Lessor determines that Lessee is using water for other
than drinking and lavatory purposes, then Lessee shall, from time to time and
within fifteen (15) days of being furnished with a statement thereof, pay to
Lessor the amounts that Lessor attributes as the cost for providing water to
Lessee.
7. ALTERATIONS:
Lessee shall make no additions, installations, alterations or changes in
or to the demised premises without obtaining the prior written permission of
Lessor. In any event, all installations, alterations or work done by Lessee
shall at all times comply with:
a. Laws, rules, orders and regulations of all governmental or municipal
bodies, authorities, departments or agencies having jurisdiction thereof and
such rules and regulations as Lessor shall promulgate, including the ADA as
provided in Section 56 of this Lease.
b. Plans and specifications prepared by and at the expense of Lessee
theretofore submitted to Lessor for its prior written approval; no
installations, alterations or any other work shall be undertaken, started or
begun by Lessee, its agents, servants or employees, until Lessor has approved
such plans and specifications; and no amendments or additions to such plans and
specifications shall be made without the prior written consent of Lessor.
c. Lessee agrees to pay Lessor's costs and expenses of reviewing any
plans and specifications submitted for Lessor's review plus an inspection fee of
Two Hundred and Fifty and no/100 Dollars ($250.00) per inspection.
8. ACCESS:
Lessee shall permit Lessor and others authorized by Lessor to enter upon
the demised premises at all reasonable times, with advance notice to Lessee to
examine the condition thereof and conditions of Lessee's occupancy, to make such
repairs, additions or alterations therein as Lessor may deem necessary, for such
other purposes as may be related to Lessor's ownership or to exhibit the same to
prospective tenants, purchasers and/or mortgagees.
9. SIGNAGE:
Lessee may not erect any sign in or on any portion of the demised premises
or on the Building visible from any point outside of the interior of the demised
premises or the Building without Lessor's prior written approval and according
to the covenants of the Business Park.
10. USE:
Lessee shall use the demised premises only for office purposes, generally
in accordance with the manner of use by other tenants at the Property (the
"Permitted Use"). The foregoing notwithstanding, the demised premises shall not
be used for any of the purposes or uses described in Exhibit E; any illegal
purposes; nor in any manner to, create any nuisance or
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trespass; nor in any manner to vitiate the insurance or increase the rate of
insurance on the demised premises. Lessee's use of the demised premises shall
not violate any ordinance, law or regulation of any governmental body or the
"Rules and Regulations" of Lessor (the "Rules") as set forth in Exhibit C
attached hereto and made a part hereof, or cause an unreasonable amount of use
of any of the services provided at the Property. Lessee agrees, at its own
expense, to promptly comply with any and all municipal, county, state and
federal statutes, regulations, or requirements applicable or in any way relating
to the use and occupancy of the demised premises. Lessee agrees to conduct its
business in the manner and according to the generally accepted business
principles of the business or profession in which Lessee is engaged.
11. LIABILITY:
Lessee shall save and hold Lessor harmless from all liabilities, charges,
expenses (including counsel fees) and costs on account of all claims for damages
and otherwise and/or suits for or by reason of any injury or injuries to any
person or property of any kind whatsoever, whether the person or property of
Lessee, its agents or employees or third persons, from any cause or causes
whatsoever while on or upon or in proximity to the demised premises or due to
any breach of a covenant herein by Lessee or to Lessee's use and occupancy of
the demised premises unless arising from any gross negligence or willful
misconduct on the part of Lessor. Lessor shall not in any manner be liable to
Lessee for damages, losses or any other claim resulting from Lessor's delay or
failure in delivery of the demised premises.
12. SURRENDER AND TERMINATION:
All fixtures, equipment, improvements and appurtenances attached to or
built into the demised premises prior to or during the term, whether by Lessor,
at its expense or at the expense of Lessee, or by Lessee, shall be and remain
part of the demised premises and shall not be removed by Lessee at the end of
the term, unless Lessor, at least fifteen (15) days prior to the expiration of
the term, notifies Lessee to remove the same. All of Lessee's removable trade
fixtures and removable business equipment may be removed by Lessee upon
condition that such removal does not materially damage the demised premises or
the Building and that the cost of repairing any damage to the demised premises
or the Building arising from such removal shall be paid by Lessee. Any property
of Lessee or of any sublessee or occupant that Lessee has the right to remove or
may hereunder be required to remove which shall remain in the Building after the
expiration or termination of the term of this Lease shall be deemed to have been
abandoned by Lessee, and either may be retained by Lessor as its property or may
be disposed of in such manner as Lessor may see fit; provided, however, that,
notwithstanding the foregoing, in the event of any failure of Lessee to promptly
remove the items requested by Lessor to be removed and/or restore any damage to
the Building or demised premises occasioned by such removal, Lessor, at Lessee's
cost and expense, may remove the items Lessee failed to remove and/or effect all
repairs to the Building and the demised premises. If such property or any part
thereof shall be sold, Lessor may receive and retain the proceeds of such sale
and apply the same, at its option, against the expenses of the sale, the cost of
moving and storage, any arrears of base rent, additional rent or other charge
payable hereunder and any damages to which Lessor may be entitled hereunder or
pursuant to law. Upon the expiration or other termination of the term of this
Lease, Lessee shall quit and surrender to Lessor the demised premises, broom
clean, in good order and condition, ordinary wear excepted, and Lessee shall (i)
remove all of its property and other items that it is permitted or required
hereunder to remove and (ii) repair all damage to the Building and/or the
demised premises occasioned by such removal. Lessee's obligation to observe or
perform this covenant shall survive the expiration or other termination of the
term of this Lease.
13. INDEMNITY:
Lessor, its agents and its and their employees shall not be liable for any
damage to property of Lessee or of any other party claiming by, through or under
Lessee, nor for the loss or damage to any property of Lessee by theft or
otherwise, unless caused by the negligence or willful misconduct of Lessor or
its agents or employees. Lessee shall, at its own cost and expense, be
responsible for the repairs or restoration due to, or resulting from, any theft
or otherwise. Lessor or its agent shall not be liable for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, electrical disturbance, water, rain or snow or leaks from any
part of the Building or from the pipes, appliances or plumbing works or from the
roof, street or sub-surface or from any other place or by dampness or by any
4
other cause of whatsoever nature, unless caused by the negligence or willful
misconduct of Lessor or its agents or employees; nor shall Lessor or its agents
be liable for any such damage caused by other tenants or persons in the Building
or caused by operations in construction of any private, public or quasi-public
work, unless caused by the negligence or willful misconduct of Lessor or its
agents or employees; nor shall Lessor be liable for any defect (latent or
otherwise) in the demised premises or in the Building. Lessee shall reimburse
and compensate Lessor as additional rent for all expenditures made by, or
damages or fines sustained or incurred by, Lessor due to non-performance or
non-compliance with or breach or failure to observe any term, covenants or
condition of this Lease upon Lessee's part to be kept, observed, performed or
complied with.
14. NO WAIVER:
The failure of Lessor to seek redress for violation of, or to insist upon
the strict performance of, any covenant or condition of this Lease shall not
prevent a subsequent act, which would have originally constituted a violation
from having all the force and effect of an original violation. The receipt by
Lessor of rent with knowledge of the breach of any covenant of this Lease shall
not be deemed a waiver of such breach. No provision of this Lease shall be
deemed to have been waived by Lessor unless such waiver be in writing signed by
Lessor. No surrender of this Lease shall be effective without Lessor's written
agreement to accept such surrender. No payment by Lessee, or receipt by Lessor,
of a lesser amount than the full rent, additional rent or payment obligation
hereunder shall be deemed to be other than on account for the sum or sums
stipulated hereunder, nor shall any endorsement or statement on any check or any
letter accompanying a payment by Lessee be deemed an accord and satisfaction and
Lessor may accept such check or payment without prejudice to Lessor's right to
recover the balance of such rent, additional rent or other payment or pursue any
other remedy available to Lessor. No waiver, on the part of Lessor, its
successors or assigns, of any default or breach by Lessee of any covenant,
agreement or condition of this Lease shall be construed to be a waiver of the
rights of Lessor as to any prior or future default or breach by Lessee.
15. SUBORDINATION:
a. This Lease is, or will be, subject and subordinate to any underlying
land leases or to the lien of any and all mortgages, deeds of trust or other
security devices which may now or hereafter affect or encumber this Lease or the
Property and also to all renewals, modifications, extensions, consolidations,
and replacements of such leases or security devices. This clause shall be
self-operative and no further instrument of subordination shall be required by
any mortgagee, or holder of another security device or holder of a ground
leasehold interest. In confirmation of such subordination, however, Lessee
shall, within ten (10) days after Lessor's request, execute and acknowledge any
documents reasonably required to effectuate an attornment, a subordination, or
to make this Lease or any option granted herein prior to any underlying land
leases or the lien of any mortgage, deed of trust or other security devices, as
the case may be.
b. Notwithstanding the foregoing, in the event any such mortgagee or
the holder of any deed to secure debt, other security device or ground leasehold
interest shall elect to make the lien of this Lease prior to the lien of its
mortgage, deed to secure debt, other security device or ground leasehold
interest, then, upon such party giving Lessee written notice to such effect,
this Lease shall be deemed to be prior in lien to the lien of such mortgage,
deed to secure debt, other security device or ground leasehold interest, whether
dated prior or subsequent thereto.
c. If any proceedings are brought for the foreclosure of, or in the
event of exercise of the power of sale or conveyance in lieu of foreclosure
under any mortgage, deed of trust or other security device, Lessee shall at the
option of the purchaser at such foreclosure or other sale, attorn to such
purchaser and recognize such person as Lessor under this Lease. Lessee agrees
that the institution of any suit, action or other proceeding by a mortgagee or a
sale of the Property pursuant to the powers granted to a mortgagee under its
mortgage, deed of trust or other security device, shall not, by operation of law
or otherwise, result in the cancellation or the termination of this Lease or of
the obligations of Lessee hereunder.
d. If such purchaser requests and accepts such attornment, from and
after the time of such attornment, Lessee shall have the same remedies against
such purchaser for the breach of an agreement contained in this Lease that
Lessee might have had against Lessor if the mortgage,
5
deed of trust or other security device, had not been terminated or foreclosed,
except that such purchaser shall not be (i) liable for any act or omission of
the prior Lessor; (ii) subject to any offsets or defenses which Lessee might
have against the prior Lessor; (iii) bound by any rent or Security Deposit
(hereinafter defined) which Lessee might have paid in advance to the prior
Lessor; (iv) obligated to cure any default of any prior Lessor under the Lease
that occurred prior to the time that such purchaser succeeded to the interest of
Lessor in the Property; or (v) bound by any amendment or modification of the
Lease made without the prior written consent of such purchaser.
16. INSURANCE:
Lessee shall, during the term hereof, keep in full force and effect (i)
public liability and property damage insurance with respect to the demised
premises and the use and/or business operated by Lessee in the demised premises,
in which the limits of public liability shall not be less than Three Million and
no/100 Dollars ($3,000,000.00) on account of personal injury to or the death of
any one or more persons, as a result of any accident or disaster, and One
Million and no/100 Dollars ($1,000,000.00) on account of damage to property;
(ii) fire and extended coverage insurance with sprinkler leakage coverage in an
amount sufficient to cover the cost of replacing its property and fixtures; and
(iii) glass breakage and replacement insurance.
a. The limits of said insurance shall not, however, in any way limit
the liability of Lessee under this Lease.
b. All insurance policies which Lessee is required to secure and
maintain shall be in such form and by companies acceptable to Lessor.
c. Lessee shall include in its fire and glass insurance policies for
the demised premises appropriate clauses pursuant to which the insurance
carriers (i) waive all rights of subrogation against Lessor, Lessor's mortgagees
and holders of any ground lease, with respect to losses payable under such
policies and/or (ii) agree that such policies shall not be invalidated should
the insured waive, in writing, prior to a loss any or all right of recovery
against any party for losses covered by such policies. If Lessee, at any time,
is unable to obtain such inclusion of either of the clauses described in the
preceding sentence, Lessee shall have Lessor, Lessor's mortgagees and holders of
any ground lease named in such policies as insureds. Lessee hereby waives any
and all right of recovery which it might otherwise have against Lessor, its
contractors, agents and its and their employees, for loss or damage to Lessee's
furniture, furnishings, fixtures and other property and all other losses covered
by the insurance required to be carried by Lessee. Lessee shall, concurrently
with its execution of this Lease (and thereafter, at least thirty (30) days
prior to the expiration of any policy) furnish Lessor with a duplicate original
of all insurance carried by Lessee at the demised premises with evidence that
the premiums therefor have been paid current.
d. All public liability policies required by this Lease to be obtained
by Lessee shall name Lessor and such other parties as Lessor shall designate as
an insured thereunder.
17. DEFAULT:
Time is of the essence with regard to the performance of Lessee's
obligations under this Lease. Any of the following constitutes a default of this
Lease by Lessee:
a. Failure to pay any installment of base rent, item of additional rent
or other charge payable under this Lease on the applicable payment date. Lessee
shall pay Lessor interest at the rate of eighteen (18%) percent simple interest
per annum (or if such rate be illegal, at the maximum rate permitted by law, and
any payment in excess of that which is permitted by law shall, and be deemed to
be, an advance payment of base rent and shall be applied against the
installments of base rent next becoming due) on all payments due under this
Lease that are not made on the date when due, calculated from the date when due
until paid in full.
b. Failure to cure any other default of Lessee's obligations under this
Lease for a period of ten (10) days after notice specifying the nature of the
default.
c. Vacation (and failure to pay rent) or abandonment of the demised
premises.
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d. Filing a voluntary petition in bankruptcy or the adjudication of
Lessee as insolvent or bankrupt, or an assignment for the benefit of creditors,
or filing a petition for relief under any applicable bankruptcy law, or consent
to the appointment of a trustee or receiver of all or any substantial part of
Lessee's property; or
e. Filing of an involuntary petition under any applicable bankruptcy
law against Lessee which is not vacated within thirty (30) days.
18. LESSOR'S REMEDIES:
Upon Lessee's default and the expiration of any applicable grace period,
Lessor may (at Lessor's option and in addition to all other rights provided in
this Lease, at law or in equity) take any one or more of the following actions
without further notice or demand.
a. Terminate this Lease in which event Lessee shall immediately
surrender the demised premises to Lessor. If Lessee fails to do so, Lessor may,
without further notice and without prejudice to any other remedy Lessor may
have, enter upon the demised premises without the requirement of resorting to
the dispossessory procedures set forth by applicable law, if any, and expel or
remove Lessee and Lessee's effects without being liable for any claim for
trespass or damages therefor. Upon any such termination, Lessee shall remain
liable to Lessor for damages, due and payable monthly on the day rent would have
been payable hereunder, in an amount equal to the rent and any other amounts
which would have been owing by Lessee for the balance of the term had this Lease
not been terminated, less the net proceeds, if any, of any reletting of the
demised premises by Lessor, plus the aggregate amount of all of Lessor's
expenses of reletting (including, without limitation, rental concessions to new
tenants, repairs, alterations, advertising expenses, legal fees, brokerage
commissions and other professional fees) and any other costs incurred in
connection with the termination of this Lease, eviction of Lessee and such
reletting, and all other damages to which Lessor is entitled under law.
b. Enter the demised premises as the agent of Lessee without
terminating the Lease and without being liable for any claim for trespass or
damages therefor, and, in connection therewith, re-key the demised premises,
remove Lessee's improvements, signs, personal property, equipment and other
evidences of tenancy, and store or dispose of them, at Lessee's expense or as
Lessor may see fit without being liable for any damage thereto, and relet the
demised premises without advertisement, by private negotiations, for any term
Lessor deems proper, and receive the rent therefor. If Lessor elects to take
possession only without terminating this Lease, such entry and possession shall
not terminate the Lease or release Lessee, in whole or in part, from the
obligation to pay the rent and other charges payable under this Lease for the
full term or from any other obligation under this Lease. Notwithstanding any
such re-letting without termination, Lessor may at any time thereafter elect to
terminate this Lease for such previous breach.
c. Demand immediate repayment by Lessee, in addition to but not in lieu
of or in limitation of any other right or remedy provided to Lessor under the
terms of this Lease, of all sums expended by Lessor and not repaid by Lessee in
connection with preparing or improving the demised premises to Lessee's
specifications and all costs and expenses incurred in reasonably renovating or
altering the demised premises to make it suitable for re-letting.
d. Declare the entire amount of the rent and other sums which would
have become due and payable during the remainder of the term of the Lease to be
due and payable immediately without notice to Lessee and thereafter terminate
this Lease and Lessee's right of possession of the demised premises.
e. Pursue any other remedy, at law or in equity, now or hereafter
available to Lessor under the laws or judicial decisions of the state wherein
the demised premises are located. Lessor's reentry, demand for possession,
notice that the tenancy hereby created will be terminated on the date therein
named, institution of an action of unlawful detainer or ejectment or the
entering of a judgment for possession in such action or any other act or acts
resulting in the termination of Lessee's right to possession of the demised
premises shall not relieve Lessee from Lessee's obligation to pay all sums due
hereunder during the balance of the term, except as expressly provided herein.
Unpaid installments of rent and other unpaid monetary obligations of Lessee
under the terms of this Lease shall bear interest from the date due at the
lesser of
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eighteen percent (18%) per annum or the maximum rate then allowable by law as
provided in Section 17 of this Lease.
f. This Lease shall not be deemed to be terminated by Lessor's entry on
the demised premises or by any other act unless Lessor specifically expresses
its intent to terminate this Lease.
g. For purposes of any reletting by Lessor described in this Section
18, Lessor is authorized to redecorate, repair, alter and improve the demised
premises to the extent necessary in Lessor's sole but reasonable discretion.
Upon such reletting, all rentals received by Lessor from such re-letting shall
be applied first, to the payment of any indebtedness other than the rent due
hereunder from Lessee to Lessor; second, to the payment of any costs and
expenses of such reletting or eviction of Lessee, including, without limitation,
brokerage fees and attorneys' fees and the costs of such alterations and repairs
as may be necessary relative to such re-letting; third, to the payment of the
rents then due and unpaid under the Lease; and the residue, if any, shall be
held by Lessor and applied in payment of future rents as same may become due and
payable hereunder. Lessee shall pay Lessor on demand any deficiency that may
arise by reason of such reletting, but Lessee shall not be entitled to any
surplus so arising.
x. Xxxxxx, in addition to but not in lieu of or in limitation of any
other right or remedy provided to Lessor under the terms of this Lease or
otherwise (but only to the extent such sum is not reimbursed to Lessor in
conjunction with any other payment made by Lessee to Lessor), shall have the
right to be immediately repaid by Lessee the unamortized portion of all sums
expended by Lessor and not repaid by Lessee in connection with preparing or
improving the demised premises to Lessee's specifications and any and all costs
and expenses incurred in renovating or altering the demised premises to make it
suitable for reletting. Lessee agrees that Lessor may file suit to recover any
sums due Lessor under this Paragraph 18 from time to time and that such suit or
recovery of any amount due Lessor shall not be a defense to any subsequent
action brought for any amount not previously reduced to judgment in favor of
Lessor.
i. All rights and remedies of Lessor created or otherwise existing at
law or in equity are cumulative and the exercise of one or more rights or
remedies shall not be taken to exclude or waive the right to exercise any other
j. In the event Lessor commences any proceedings for nonpayment of rent
or other sums due hereunder, Lessee will not interpose any counterclaim of
whatever nature or description which is not directly related to the Lease in any
such proceeding, as construed by a court having proper jurisdiction. This shall
not, however, be construed as a waiver of Lessee's right to assert such claims
in any separate action or actions brought by Lessee.
k. Notwithstanding anything in this Lease to the contrary, Lessee shall
have no claim and hereby waives the right to any claim, against Lessor for money
damages by reason of any refusal, withholding or delaying by Lessor of any
consent, approval or statement of satisfaction, and in such event, Lessee's only
remedies therefor shall be an action for specific performance or injunction to
enforce any such requirements. If the results of any such action or arbitration
shall be adverse to Lessor, Lessor shall be liable for Lessee's reasonable
expenses and attorneys' fees thereby incurred.
19. DESTRUCTION - FIRE OR OTHER CAUSE:
a. If the demised premises shall be partially damaged by fire or other
cause without the fault or neglect of Lessee or Lessee's servants, employees,
agents, invitees or licensees, Lessor shall, upon Lessor's receipt of the
insurance proceeds and to the extent such proceeds are allocable or attributable
to the demised premises, repair the portions of the demised premises covered by
Lessor's insurance, and the rent until such repairs shall have been made shall
be apportioned according to the part of the demised premises which is usable by
Lessee. But if such partial damage is due to the fault or neglect of Lessee or
Lessee's servants, employees, agents, invitees or licensees, without prejudice
to any other rights and remedies of Lessor and without prejudice to the rights
of subrogation of Lessor's insurer, the damages shall be repaired by Lessor but
there shall be no apportionment or abatement of rent.
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b. If the demised premises are totally damaged or are rendered wholly
untenantable by fire or other cause, Lessor has the option to terminate the
Lease as of the date of the damage or destruction by giving Lessee written
notice within ninety (90) days after the date of the damage or destruction. If
the demised premises are totally damaged or are rendered wholly untenantable and
Lessor shall decide not to restore or not to rebuild the same, or if the
Building shall be so damaged that Lessor shall decide to demolish it or not to
rebuild it, or if the Building (whether or not the demised premises have been
damaged) should be damaged to the extent of fifty (50%) percent or more of the
then monetary value thereof, or if the damage resulted from a risk not fully
covered by Lessor's insurance, then or in any of such events, Lessor may, within
ninety (90) days after such damage or destruction, give Lessee written notice of
Lessor's election to terminate this Lease, and thereupon the term of this Lease
shall expire and terminate upon the third day after such notice is given, and
Lessee shall vacate the demised premises and surrender the same to Lessor.
Notwithstanding the foregoing, if the demised premises are totally damaged or
are rendered wholly untenantable by fire or other cause, either party may
terminate this Lease upon written notice to the other within thirty (30) days
after the date of such damage or destruction.
c. If neither Lessor nor Lessee elects to terminate this Lease within
thirty (30) days after such destruction or damage, Lessor shall complete such
restoration with reasonable diligence within one hundred eighty (180) days after
the date of Lessor's receipt of insurance proceeds paid with respect to such
damage or destruction. During such period of repair, if any portion of the
demised premises shall be untenantable as a result of said damage or
destruction, rent shall xxxxx beginning with the date of such damage or
destruction and ending on the date the demised premises are rendered tenantable
by an amount bearing the same ratio to the total amount of rent due under this
Lease as the untenantable portion of the demised premises bears to the entire
demised premises. Notwithstanding such abatement, Lessee shall remain obligated
to perform and discharge all of its remaining covenants under this Lease during
the period of abatement.
d. If such damage or destruction occurs within one (1) year of the
expiration of the term of this Lease, either party may, at its option on written
notice to the other party within thirty (30) days after such destruction or
damage, terminate this Lease as of the date of such damage or destruction.
e. For purposes of this Lease, the term "Lessor's receipt of insurance
proceeds" shall mean the portion of the insurance proceeds paid over to Lessor
free and clear of any collection by mortgagees for the value of the damage,
attorneys' fees and other costs of compromise, adjustment, settlement and
collection of the insurance proceeds.
20. LEGAL FEES:
In the event it shall become necessary for either party at any time to
institute any legal action or proceedings of any nature for the enforcement of
this Lease, or any of the provisions hereof, or to employ an attorney-at-law
therefor and said party prevails in such action or proceedings, then the
non-prevailing party shall pay to the prevailing party such prevailing party's
costs (including a reasonable attorney's fee) incurred in such action or
proceedings.
21. CONDEMNATION:
If all of the Building is taken by or under the power of eminent domain
(or conveyance in lieu thereof), this Lease shall terminate on the date the
condemning authority takes possession and any rent paid for any period beyond
said date shall be repaid to Lessee. In all other cases of any taking of the
Building or the Land by the power of eminent domain (or conveyance in lieu
thereof), Lessor shall have the option of electing to terminate this Lease.
If Lessor does not elect to terminate, Lessor shall do the work necessary
so as to constitute the portion of the Building not so taken a complete
architectural unit and Lessee shall do all other work necessary for it to use
and occupy the demised premises for its permitted purpose. During the period of
Lessor's repairs, rent shall xxxxx in an amount bearing the same ratio as the
portion of the demised premises usable by Lessee bears to the entire demised
premises. Rent shall be equitably adjusted, as of the date the condemning
authority permanently acquires possession of any portion of the demised
premises, to reflect any permanent reduction in the tenantable portion of the
demised premises. Lessee shall not be entitled to, hereby expressly waives, and
hereby assigns to Lessor all Lessee's right, title and interest in and to, any
9
award made in any condemnation proceeding, action or ruling relating to any
taking (or consideration paid for a conveyance in lieu thereof), whether whole,
partial, temporary or permanent, and whether for diminution of the value of
Lessee's interest in this Lease or term thereof or to the lease improvements or
for any other claim or damage, including, without limitation, severance damages
and loss of, or damage to, Lessee's trade fixtures. Notwithstanding the
foregoing, in the event of a termination of this Lease, Lessee shall be entitled
to make a separate claim in any condemnation proceeding, action or ruling
relating to any taking against the condemning authority for Lessee's moving
expenses, loss of goodwill, and the unamortized value of the leasehold
improvements in the demised premises actually paid for by Lessee without
contribution by Lessor, provided any awards or proceeds sought by, or paid to,
Lessee does not reduce or diminish in any way or amount the awards or proceeds
otherwise payable to Lessor. Lessee shall have no claim against Lessor for the
value of any unexpired portion of this Lease.
22. ASSIGNMENT AND SUBLETTING:
a. Lessee shall not sublet any part of the demised premises, nor assign
this Lease or any interest herein, without the prior written consent of Lessor,
which consent shall not be unreasonably withheld or delayed. Any sublease or
assignment made without Lessor's consent shall be void. For illustration only,
the following are examples of reasons Lessor may withhold its consent without
being deemed to be unreasonable: (i) the proposed sublessee or assignee may, in
Lessor's judgment unreasonably burden the Building, its amenities or services
(ii) if the rate of compensation, including, but not limited to, all rent
requested by Lessee for the portion of the demised premises to be subleased or
subject to an assignment of the Lease, impacts upon or impairs Lessor's ability
to rent space in the Building at the then market rate as offered by Lessor,
(iii) the financial statements or the business experience of the proposed
assignee or sublessee are unsatisfactory to Lessor, (iv) the proposed use of the
demised premises conflicts with other uses in the Building, (v) the prospective
assignee or sublessee is an existing tenant of the Building and in Lessor's
judgment such sublease or assignment may affect Lessor's lease relationship with
such tenant, or (vi) Lessee's proposed subletting or assignment will, in
Lessor's judgment, compete with Lessor's ability to lease other vacant space in
the Building. Consent by Lessor to one assignment or sublease shall not destroy
or waive this provision, and all later assignments and subleases shall likewise
be made only upon prior written consent of Lessor. If a sublease or assignment
is consented to by Lessor, any subleases or assignees shall become liable
directly to Lessor for all obligations of Lessee hereunder without relieving or
in any way modifying Lessee's liability hereunder.
b. If Lessee desires to assign this Lease or sublet the demised
premises or any part thereof, Lessee shall give Lessor written notice at least
thirty (30) days in advance of the date on which Lessee desires to make such
assignment or sublease, and pay to Lessor a non-refundable $Two Hundred Fifty
and No/100 Dollars ($250.00) administrative processing fee. Lessee's notice
shall specify: (a) the name and business of the proposed assignee or sublessee;
(b) the amount and location of the space in the demised premises affected; (c)
the proposed effective date of the subletting or assignment; and (d) the
proposed rental to be paid to Lessee by such sublessee or assignee.
c. If Lessee shall give such notice, Lessee shall pay on demand
Lessor's reasonable costs not to exceed Two Thousand Five Hundred Dollars
($2,500.00), including attorneys' fees incurred to consider and as necessary to
document such transaction. If Lessee notifies Lessor of Lessee's intent to
sublease or assign this Lease, Lessor shall within fifteen (15) business days
from receipt of such notice (a) consent to such proposed assignment or
subletting; (b) deny such consent (if Lessor shall fail to notify Lessee in
writing of such election within said fifteen (15) day period, Lessor shall be
deemed to have elected to deny such consent); or (c) elect to cancel this Lease
if Lessee intends to sublease the entire demised premises, or to reduce the
demised premises by the area requested to be subleased or assigned if the area
is less than the entire demised premises.
d. If Lessor's election is to cancel or to reduce the area of the
demised premises as provided in the foregoing clause (c) (such election being
referred to herein as "Lessor's Modification Election"), Lessee shall have ten
(10) days from receipt of Lessor's Modification Election to notify Lessor of
Lessee's acceptance of such cancellation or reduction or Lessee's desire to
remain in possession of the demised premises under this Lease for the remainder
of the Term. If Lessee fails to notify Lessor of Lessee's election to accept
termination or reduction or
10
to continue as Lessee hereunder, such failure shall be deemed an election to
terminate or have the area of the demised premises reduced, as the case may be,
in accordance with Lessor's Modification Election and such termination or
reduction shall be effective at the end of the ten (10) day period provided for
above. If Lessor gives its consent to any such assignment or sublease,
seventy-five percent (75%) of any rent or other cost to the assignee or
sublessee for all or any portion of the demised premises over and above the rent
payable by Lessee for such space shall be due and payable, and shall be paid, to
Lessor.
e. If this Lease is cancelled, the area of the demised premises is
reduced or a sublease or assignment is made as herein provided, Lessee shall pay
Lessor a charge equal to the actual costs incurred by Lessor, in Lessor's
reasonable judgment (including, but not limited to, the use and time of Lessor's
personnel), for all of the necessary legal, management, leasing or accounting
services required to accomplish such cancellation, reduction of area of the
demised premises, assignment or subletting, as the case may be.
f. Any physical alterations necessary with respect to any such
assignment, subletting or reduction of the area of the demised premises shall be
subject to the provisions of this Lease regarding alterations and shall be at
Lessee's sole cost and expense and subject to applicable building codes. No
acceptance by Lessor of any rent or any other sum of money from any assignee,
sublessee, or other category of transferee shall release Lessee from any of its
obligations under this Lease or be deemed to constitute Lessor's consent to such
assignment, sublease or transfer.
g. The sale or transfer of Lessee's voting stock (if a corporation) or
a partnership interest (if a partnership) or member interest (if a limited
liability company) in Lessee resulting in the transfer of control of a majority
of such stock or interest, or the occupancy of the demised premises by any
successor firm of Lessee or by any firm into which or with which Lessee may
become merged or consolidated shall be deemed an assignment of this Lease
requiring the prior written consent of Lessee. The foregoing notwithstanding,
Lessor shall not unreasonably withhold its consents to an assignment of this
Lease in connection with a sale of all, or substantially all, of the stock or
assets of Lessee, provided that: (i) Lessee provides Lessor with 30 days prior
notice to making such assignment; and (ii) Lessee provides Lessor with financial
information confirming that the surviving entity is able to satisfy the
financial obligations under this Lease; and (iii) in the event the tangible net
worth of the surviving entity is not least as great as Lessee's tangible net
worth as of the date hereof, then Lessee shall provide Lessor with an additional
security deposit reasonably acceptable to Lessor.
h. The joint and several liability of Lessee named herein and any
immediate and remote successor in interest of Lessee (by assignment or
otherwise), and the due performance of the obligations of this Lease on Lessee's
part to be performed or observed, shall not in any way be discharged, released
or impaired by any (i) agreement which modifies any of the following or
obligations of the parties under this Lease, (ii) stipulation which extends the
time within which an obligation under this Lease is to be performed, (iii)
waiver of the performance of an obligation required under this Lease, or (iv)
failure to enforce any of the obligations set forth in this Lease; provided,
however, that (a) in the case of any modification of this Lease made after the
date of an assignment or other transfer of this Lease by Lessee, if such
modification increases or enlarges the obligations of Lessee or reduces the
rights of Lessee, then Lessee named herein and each respective assignor or
transferor shall not be liable under or bound by any such increase, enlargement
or reduction; and (b) in the case of any waiver by Lessor of a specific
obligation of an assignee or transferee of Lessee, such waiver shall also be
deemed a waiver of such obligation with respect to the immediate and remote
assignors or transferor of such assignee or transferee.
i. Lessee shall have no right whatsoever to encumber any of Lessee's
rights, title or interest under this Lease, without the prior written consent of
Lessor.
j. Nothing in this Lease shall in any way restrict Lessor's right to
assign or encumber this Lease in its sole and absolute discretion. Should Lessor
assign this Lease as provided for above, or should Lessor encumber all or any
portion of the Property and should the holder of such encumbrance succeed to the
interest of Lessor, Lessee shall be bound to said assignee or any such holder
under all the terms, covenants and conditions of this Lease for the balance of
the Lease term remaining after such succession and Lessee shall attorn to such
succeeding party as its Lessor under this Lease promptly under any such
succession. essee agrees that should
11
any party so succeeding to the interest of Lessor require a separate agreement
of attornment regarding the matters covered by this Lease, then Lessee shall
promptly enter into such attornment agreement, provided the same does not
substantially modify any of the provisions of this Lease and has no material
adverse effect upon Lessee's continued occupancy of the demised premises.
23. PARKING:
Lessee shall not park any vehicle, in any area, where said parking will
constitute a problem to other tenants. Parking areas shall be provided at no
additional cost to Lessee. Lessee shall have three (3) unreserved parking spaces
per 1,000 square feet of rentable area. Lessor reserves the right at all times
during the term hereof to designate and redesignate such parking areas and to
proscribe the use thereof by reasonable rules and regulations. Lessee, its
officers, employees, guests, invitees and visitors shall not at any time park
trucks or vehicles in any of the areas designated for automobile parking. Lessor
shall have no responsibility to police or otherwise insure Lessee's or other
lessees' use thereof. Lessee shall not be entitled to any designated parking
spaces. Parking areas shall be provided by Lessor for use by Lessee, its
officers, employees, guests, invitees and visitors in common with the other
tenants of the Office Park, their officers, employees, guests, invitees,
visitors and such other parties as Lessor shall, from time to time, permit, on a
"first come-first served" basis. All parking spaces and parking areas shall be
non-attended and shall be utilized at the vehicle owner's own risk. Lessor shall
not be liable for any injury to persons or property or loss by theft or
otherwise to any vehicle or its contents. Vehicles parked on lawn areas are
subject to being towed away at vehicle owner's expense.
24. KEYS:
At the expiration or earlier termination of this Lease, Lessee shall
furnish Lessor with at least one (1) key to each door or other locked area in or
to the demised premises.
25. MECHANICS' LIENS:
Neither Lessor nor the Property shall be liable for any labor, services or
materials furnished or to be furnished to Lessee upon credit, and no mechanic's
or other lien for any such labor, services or materials shall attach to,
encumber or in any way affect the reversionary interest or other estate or
interest of Lessor in and to the Building or the Land. Nothing in this Lease
shall be construed as a consent by Lessor to subject Lessor's reversionary
interest in the demised premises to liability under any lien or other law. If,
as a result of any work or installation made by, or on behalf of Lessee, or
Lessee's maintenance and repair of the demised premises, a claim of lien or lien
is filed against the demised premises or all or any portion of the Property,
within ten (10) days after it is filed, Lessee shall either satisfy the claim of
lien or obtain a bond for or otherwise provide for the satisfaction of the lien
in a manner acceptable to Lessor. If Lessee fails to do so within the ten (10)
day period, Lessor may satisfy the lien, and Lessee shall reimburse Lessor for
all Lessor's costs and expenses (including reasonable attorneys' fees) incurred
in connection therewith.
26. NOTICES:
All notices by Lessee to Lessor or by Lessor to Lessee with regard to this
Lease shall be valid only if in writing and shall be deemed conclusively
delivered when same are either hand delivered, or deposited in the U.S. mail,
postage prepaid, certified, return receipt requested, or picked up for delivery
by a nationally recognized courier for overnight delivery with such delivery
charge being prepaid, if to Lessor, addressed to Lessor at the address set forth
for Lessor on page 1 of this Lease or if to Lessee, at the address set forth for
Lessee on page 1 of this Lease prior to Lessee's initial occupancy of the
demised premises and thereafter with a duplicate to Lessee at the demised
premises, attention: Manager of Facilities. Either party hereto may, by notice
given as aforesaid, designate a different address or addresses for notices.
12
27. LESSEE'S PROPORTIONATE SHARE:
a. Throughout the Term, Lessee agrees to pay, as additional rent, its
proportionate share of Operating Costs (as hereinafter defined) of the Building,
as hereinafter defined (the "Lessee's Share").
b. The term "Lessee's Share" shall mean the portion that the rentable
square feet in the demised premises bears to the "Total Building Rentable Area"
(as hereinafter defined). Notwithstanding anything to the contrary contained
herein, in the event the Total Building Rentable Area does not have an average
occupancy of ninety-five percent (95%) during any calendar year, appropriate
adjustments shall be made to determine Operating Costs as though the Building
had been ninety-five percent (95%) occupied, but in no event shall Lessee ever
be required to pay more than Lessee's Share of the determined Operating Costs.
The average occupancy shall be determined by adding together the total leased
space on the last day of each month during the calendar year in question and
dividing by twelve (12). For purposes of this Lease, the Total Building Rentable
Area is Two Hundred Eighteen Thousand Fifty-Two (218,052) square feet and the
"Lessee's Share" equals 1.51%.
c. During the month of December of each calendar year (or as soon
thereafter as is reasonably practicable), Lessor shall furnish to Lessee a
statement of Lessor's estimate of the Operating Costs for the next calendar
year. Commencing on the Commencement Date and continuing on each monthly rent
payment date thereafter until further adjustment pursuant to this Section 27(c),
Lessee shall pay to Lessor one-twelfth (1/12) of Lessor's estimate of Lessee's
Share of Operating Costs. Within one-hundred and twenty (120) days after the
expiration of each calendar year during the Term (or as soon thereafter as is
reasonably practicable), Lessor shall furnish to Lessee a statement (the
"Expense Statement") showing the actual Operating Costs for such calendar year.
The Expense Statement shall be conclusive and binding on Lessee, unless objected
to in writing by Lessee as provided in this Section 27. In case of an
underpayment, Lessee shall, within thirty (30) days after the receipt of such
statement, pay to Lessor an amount equal to such underpayment. In case of an
overpayment, Lessor shall credit the next monthly rental payment by Lessee with
an amount equal to such overpayment. Additionally, if this Lease shall have
expired, Lessor shall apply such excess against any sums due from Lessee to
Lessor and shall refund any remainder to Lessee within ninety (90) days after
the expiration of the Term, or as soon thereafter as is reasonably practicable.
d. Anything herein to the contrary notwithstanding, in no event shall
the rent as set forth in Section 3(a) ever be reduced on account of Operating
Costs.
e. Should this Lease commence at any time other than the first day of a
calendar year, or terminate at any time other than the last day of a calendar
year, the amount of additional rent due from Lessee shall be proportionately
adjusted based on that portion of the year that this Lease was in effect.
f. Lessee shall have the right for a period of sixty (60) days after
receipt of any Expense Statement to review Lessor's books and records with
respect to actual annual Operating Costs for the period covered by the Expense
Statement. Such review shall take place in Lessor's manager's office at the
Property or at such other locally-based place as designated by Lessor. Lessee
shall give Lessor not less than ten (10) days written notice of the date on
which Lessee intends to conduct such review. In the event Lessee either fails to
give written notice or thereafter fails to complete such inspection within ten
(10) business days after the date for the inspection set forth in Lessee's
written notice, then Lessee's right to review Lessor's books and records shall
terminate on such tenth (10th) day and the Expense Statement in question shall
be binding on both Lessor and Lessee. The results of such review shall be for
the benefit of Lessor and Lessee only, shall be maintained in confidence by
Lessee, and shall not be disseminated or furnished to any other person or
entity. Lessee may use accountants or other professionals to aid Lessee in
conducting the audit, but Lessee may not use any auditing services or
consultants that are owned by, affiliated with, employed by or related to any
office building lessors or office building management companies or services.
g. If, as a result of Lessee's review, Lessee claims that any
particular items shall be incorrectly included as an Operating Costs under this
Lease or Lessee claims any mathematical errors exist in the Expense Statement,
Lessee may give written notice to Lessor within ten (10) days after the thirty
(30) day review period. Said notice may only contest Lessor's Expense
13
Statement for the two (2) reasons included in this Section (g) and said notice
shall clearly reflect the reasons for the disagreement and the amount claimed by
Lessee as owed from Lessor. Lessee and Lessor shall then meet in an effort to
resolve the differences in their respective findings.
h. If a resolution is not reached within twenty (20) days of Lessee's
written notice, then Lessor shall designate an independent certified public
accountant to audit the actual annual Operating Costs for the period in
question. The findings of said accountant shall be binding on both Lessor and
Lessee.
i. To the extent that the accountant's determination of Operating Costs
is less than ninety percent (90%) of the amount reflected on Lessor's Expense
Statement, then Lessor shall bear the cost of the audit. Conversely, to the
extent that the accountant's determination of the amount reflected on Lessor's
Expense Statement is equal to or within ninety percent (90%) of said statement,
then Lessee shall bear the cost of the audit.
j. If as a result of such audit it is determined that the amount of
additional rent due from Lessee shall be less than that shown due on Lessor's
Expense Statement, Lessor shall make such adjustments as necessary to correct
such Expense Statement and Lessor shall refund to Lessee any over payments of
additional rent made by Lessee.
k. Lessee shall pay, prior to delinquency, all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property of Lessee contained in the demised premises. When possible, Lessee
shall cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
1. If any of Lessee's personal property shall be assessed with Lessor's
real property, Lessee shall pay Lessor the taxes attributable to Lessee's
property within ten (10) days after receipt of a written statement from Lessor
setting forth the taxes applicable to Lessee's property.
m. The term "Operating Costs" shall mean all operating expenses of the
Building and/or Property, all of which shall be computed on a modified cash
basis and which shall include all expenses, costs, and disbursements of every
kind and nature, which Lessor (i) shall pay; or (ii) become obligated to pay in
connection with the ownership, operation, management, maintenance, repair,
replacement and security of the Property, including, but not limited to, the
following:
(i) Wages and salaries of all employees engaged in the operation
and maintenance of the Property, including, but not limited to, taxes, insurance
and benefits relating thereto;
(ii) All supplies and materials used in the operation and
maintenance of the Building;
(iii) Cost of water, sewage, electricity and other utilities
furnished in connection with the operation of the Building which are not
separately metered and paid by other tenants;
(iv) Cost of all service agreements and maintenance for the
Building and/or the Property and/or the equipment therein, including, but not
limited to, trash removal, security services, alarm services, window cleaning,
janitorial service, HVAC maintenance, elevator maintenance, and grounds
maintenance;
(v) Cost of all insurance relating to the Property including, but
not limited to, the cost of casualty and liability insurance applicable to the
Property and Lessor's personal property used in connection therewith;
(vi) All taxes (ad valorem and otherwise), assessments, and
governmental charges whether federal, state, county, or municipal, and whether
by taxing districts or authorities presently taxing the Building or by others,
subsequently created or otherwise, and any other taxes (other than federal and
state income taxes) and assessments attributable to any portion of the Building
or its operation or any rent or any personal property in connection with
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the operation of the Building, and any reasonable consultants and legal fees
incurred with respect to issues, concerns or appeals involving the taxes or the
Building;
(vii) Cost of repairs and general maintenance of the interior and
exterior of the Building (including, but not limited to, glass breakage);
(viii) Cost of management fees for general operation and management
of the Building, which service may be provided by an affiliated company or
subsidiary of Lessor, provided that such management fee shall not exceed the
management fee paid for the management of comparable office buildings in the
area of the Property for comparable services negotiated at arms length;
(ix) A reasonable amortization cost due to any capital expenditures
incurred (i) which are incurred to have the effect of reducing or limiting
Operating Costs of the Building, or improving the operating efficiency of the
Property, if such reduction or limitation would inure to Lessee's benefit, or
(ii) which may be required by governmental authority or by Lessor's insurance
carrier, or (iii) which are designed to protect or enhance the health, safety or
welfare of the lessees at the Property or their invitees;
(x) Cost of repairs, replacements, damages in respect to the
Building incurred due to casualties or other causes to the extent uninsured
including any deductible amounts;
(xi) Cost of auditing and maintaining accounting books and records
in respect to the Building;
(xii) Cost of conducting any indoor air quality testing in any
portions of the Building or any exterior or interior air, water or soil testing
deemed necessary or desirable by Lessor, including regularly scheduled testing,
and any costs incurred in connection with work arising out of the results of
such tests or reports or the recommendations in such tests or reports; and
(xiii) All costs and expenses for the general operation, management,
maintenance and repair of all common areas of the Property, including all such
costs and expenses described in items (i) through (xii) above in respect to the
common areas of the Property.
Lessor shall be permitted to contract with its affiliates for supplies,
materials, and services used for the operation, maintenance, and management of
the Property and its affiliates shall be permitted to subcontract for the
acquisition of said supplies, materials, and services; provided, however,
Lessor's payments to any affiliates for such supplies, services, and materials
shall not exceed the costs normally charged by third parties for such supplies,
materials and services.
n. Expressly excluded from the definition of the term "Operating Costs"
are:
(i) Replacement of capital investment items (excepting those
expenditures referred to above);
(ii) Lessor's home office expense;
(iii) Leasing commissions;
(iv) Reimbursements paid by specific tenants or other third parties
for direct costs incurred at their request;
(v) Depreciation;
(vi) Principal, interest, and other costs directly related to
financing the Property;
(vii) The cost of any repairs or general maintenance paid by the
proceeds of insurance policies carried by Lessor on the Property; and
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(viii) The wages and salaries of any supervisory or management
employee of Lessor not involved in the day-to-day operation and maintenance of
the Property.
o. Anything contained herein to the contrary notwithstanding, annual
increases in Operating Costs which are controllable shall not exceed six percent
(6%).
28. SECURITY SERVICES:
Lessee acknowledges that Lessor is not providing, and is not obligated to
provide, any security protection services to the demised premises, Building or
Property.
29. "AS IS":
Except as provided in Section 2 of this Lease, Lessor shall not be
required to do any work in, on or upon the demised premises or the Building to
ready the same for Lessee's use or occupancy of the demised premises, it being
acknowledged that Lessee is fully familiar with the condition of the demised
premises and that Lessee has either undertaken an exhaustive examination of the
same prior to the execution of this Lease or has waived the opportunity to
undertake such inspection.
30. WAIVER OF JURY AND COUNTERCLAIM:
TO THE EXTENT PERMITTED BY LAW, IT IS MUTUALLY AGREED BY AND BETWEEN
LESSOR AND LESSEE THAT THE RESPECTIVE PARTIES HERETO SHALL, AND THEY DO HEREBY,
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BETWEEN
THE PARTIES HERETO OR THEIR SUCCESSORS OR ASSIGNS ON ANY MATTERS ARISING OUT OF,
OR IN ANY WAY CONNECTED WITH, THIS LEASE, THE RELATIONSHIP OF LESSOR AND LESSEE,
AND/OR LESSEE'S USE OF, OR OCCUPANCY OF, THE DEMISED PREMISES. LESSEE FURTHER
AGREES THAT IT SHALL NOT INTERPOSE ANY COUNTERCLAIM OR COUNTERCLAIMS IN A
SUMMARY PROCEEDING OR IN ANY ACTION BASED UPON NON-PAYMENT OF RENT OR ANY OTHER
PAYMENT REQUIRED BY LESSEE HEREUNDER. THIS WAIVER IS MADE FREELY AND
VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER EACH OF THE PARTIES HERETO HAS HAD
THE BENEFIT OF ADVICE FROM LEGAL COUNSEL ON THIS SUBJECT.
31. SECURITY:
Lessee has this day deposited with Lessor Nine Thousand Eight Hundred
Fifty-Eight and No/100 Dollars ($9,858.00) as a security deposit (the "Security
Deposit") for the performance by Lessee of all the terms, covenants and
conditions of this Lease upon Lessee's part to be performed. Unless required to
do so by law, Lessor shall have no obligation to segregate such Security Deposit
from any other funds of Lessor, and interest earned on such Security Deposit, if
any, shall belong to Lessor. Security Deposits shall not be considered advance
payments of Rent or a measure of Lessor's damages, in the case of a default by
Lessee. The Security Deposit shall be returned to Lessee within thirty (30) days
after the Expiration Date, provided Lessee has fully performed its obligations
hereunder. Regardless of any permitted assignment of this Lease by Lessee,
Lessor may return the Security Deposit to the original Lessee in the absence of
evidence satisfactory to Lessor of an assignment of the right to receive the
Security Deposit or the balance thereof, which shall satisfy in full Lessor's
obligation to return the Security Deposit. Lessor shall have the right to apply
any part of said Security Deposit to cure any default of Lessee and if Lessor
does so, Lessee shall upon demand deposit with Lessor the amount so applied so
that Lessor shall have the full Security Deposit on deposit at all times during
the Term of this Lease. In the event of a sale or lease of the Building subject
to this Lease, Lessor shall transfer the Security Deposit to the Purchaser or
lessee, and Lessor shall thereupon be released from all liability for the return
of such Security Deposit and Lessee shall look solely to the successor Lessor
for the return of the Security Deposit. This provision shall apply to every
transfer or assignment made of the Security Deposit to a successor Lessor. The
Security Deposit shall not be assigned or encumbered by Lessee without the prior
written consent of Lessor and any such unapproved assignment or encumbrance
shall be void.
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32. VIRGINIA LAW:
This Lease shall be governed by and construed in accordance with the laws
of, or applicable to, the Commonwealth of Virginia. Lessee agrees to adjudicate
all disputes arising out of the Lease in the state courts of the Commonwealth of
Virginia or the United States District Court for the Eastern District of
Virginia.
33. BROKER:
Advantis Realty ("Advantis") has acted as agent for Lessor in this
transaction, Cam Dunlop of Xxxxx Realty ("Xxxxx") acted as agent for Lessee in
this transaction, and MEC Real Estate Associates, Inc. ("MEC") has acted as
agent for InphoMatch, Inc. ("InphoMatch"), the prior occupant of the Demised
Premises. Each of Advantis, Xxxxx and MEC are to be paid a commission by
InphoMatch or Lessor pursuant to the terms of separate agreements between such
parties; Lessee shall not be responsible for the payment of any commissions to
any of such parties. Lessee warrants that no dealings or prior negotiations were
had with any other broker concerning the renting of the demised premises and
that there are no other claims for broker's commissions or finder's fees in
connection with the execution of this Lease. Lessee hereby indemnifies Lessor
and holds Lessor harmless from and against all claims, loss, cost, damage or
expense, including, but not limited to, reasonable attorneys' fees actually
incurred without regard to any statutory presumption and court costs, incurred
by Lessor as a result of or in conjunction with a claim of any real estate agent
or broker, if made by, through or under Lessee relative to this Lease.
34. RECORDING:
Lessee shall not record this Lease or a memorandum thereof without the
written consent of Lessor.
35. RULES AND REGULATIONS:
The Rules set forth on Exhibit C are incorporated into and made a part of
this Lease. Lessor may from time to time amend, modify, delete or add new and
additional reasonable Rules for the use, operation, safety, cleanliness and care
of the demised premises and the Building. Such new or modified Rules shall be
effective upon notice thereof to Lessee. Lessee will cause its employees and
agents, or any others permitted by Lessee to occupy or enter the demised
premises to abide by the Rules at all times. In the event of any breach of any
Rules and failure to cure as permitted hereunder, Lessor shall have all remedies
provided for in this Lease in the event of default by Lessee and shall, in
addition, have any remedies available at law or in equity, including but not
limited to, the right to enjoin any breach of the Rules. Lessor shall not be
responsible to Lessee for the nonobservance of the Rules by any other lessee or
person.
36. FAILURE TO DELIVER POSSESSION:
If Lessor is unable to deliver possession of all or any portion of the
demised premises, because of the holding-over or retention of possession of any
lessee, subtenant or occupant, or for any other reason, Lessor shall not be
subject to any liability for failure to give possession and the validity of this
Lease shall not be impaired under such circumstances, nor shall the same be
construed in any way to extend the term of this Lease. If permission is given to
Lessee to enter into the possession of all or any portion of the demised
premises prior to the date specified as the commencement of the term of this
Lease, Lessee covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this Lease, except
as to the covenant to pay rent.
37. WAIVER OF LIABILITY:
The term "Lessor" as used in this Lease shall mean only the owner or
mortgagee in possession, for the time being, of the Building, or the lessee or
leasehold mortgagee in possession, for the time being, of a lease of the
Building (which may include a lease of the Land), so that in the event of any
transfer of title to the Building or any assignment of said lease, or in the
event of a lease of the Building or of the Land and Building, the entity so
transferring, assigning or leasing shall be and hereby is entirely freed and
relieved of all covenants and obligations of Lessor hereunder, and it shall be
deemed and construed as a covenant running with the Land without further
agreement between the parties and their successors in interest, or
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between the parties and any such transferee, assignee or lessee, that the said
transferee, assignee or lessee has assumed and agreed to carry out any and all
covenants and obligations of Lessor hereunder. Lessee agrees to look solely to
the estate and interest of Lessor in the Land and Building, and subject to prior
right of any mortgage of the Land and/or Building, for the collection of any
judgment (or other judicial process) recovered against Lessor based upon the
breach by Lessor of any of the terms, conditions or covenants of this Lease on
the part of Lessor to be performed, and no other property or assets of Lessor
shall be subject to levy, execution or other enforcement procedures for the
satisfaction of Lessee's remedies under or with respect to either this Lease,
the relationship of Lessor or Lessee hereunder, or Lessee's use and occupancy of
the demised premises.
38. RIGHT OF LESSOR TO DISCHARGE OBLIGATIONS OF LESSEE:
If Lessee shall fail to perform or observe any of the terms, obligations
or conditions contained herein on its part to be performed or observed
hereunder, within the time limits set forth herein, Lessor may, at its option,
but shall be under no obligation to do so, perform or observe the same and all
costs and expenses incurred or expended by Lessor in such performance or
observance shall, upon demand by Lessor, be immediately repaid to Lessor by
Lessee together with interest thereon at the higher of eighteen (18%) percent
per annum or one hundred twenty (120%) percent of the prime rate charged by
Citibank, N.A. (or if both rates be illegal, at the maximum rate permitted by
law) to the date of repayment. For the purposes of this Lease, the term "prime
rate" shall mean the rate then being charged by Citibank, N.A. to its largest
corporate customers for unsecured loans of ninety (90) days or less.
39. SERVICE CONTRACTS:
Lessor shall enter into, on behalf of Lessee, a maintenance contract for
the existing HVAC with the understanding that Lessee will be invoiced separately
by Lessor for the full amount of the maintenance contract fee as well as any
costs associated with the general maintenance of the system. Should any of the
HVAC equipment need replacement during the lease term, Lessor and Lessee shall
pay their pro rata share of such replacement, i.e., if Lessor replaces an HVAC
unit with exactly one lease year remaining in the term of the lease, Lessee
shall reimburse Lessor for one-tenth (1/10th) of the cost of replacing such HVAC
unit. The Industry Standard deems the useful life of replacement of an HVAC unit
to be ten years.
40. BINDING ON SUCCESSORS, ETC.:
Except as otherwise provided in this Lease, the covenants, conditions and
agreements contained in this Lease shall bind and inure to the benefit of Lessor
and Lessee and their respective legal representatives, successors and assigns.
41. LATE CHARGE:
Lessee shall pay to Lessor a late charge of ten (10) cents per dollar for
any installment of base annual rent, any item of additional rent or other charge
payable hereunder which Lessee has failed to pay to Lessor within ten (10) days
of Lessor's demand, not as a penalty, but to help defray administrative and
other expenses involved in handling delinquent payments. In the event any check
given to Lessor by, or on behalf of, Lessee is returned to Lessor by its bank
for insufficient funds or for any other reason or is otherwise uncollectible,
Lessee shall pay to Lessor a service charge in the sum equal to the higher of
(i) Fifty and no/100 Dollars ($50.00) for each check so returned or otherwise
uncollected or (ii) five (5%) percent of the amount of the check so returned or
otherwise uncollected, which service charge, if applicable and if not prohibited
by law, shall be in addition to, and not in substitution of, any "late charge".
42. EXECUTION OF LEASE:
The submission of this Lease for examination does not constitute a
reservation or option of any kind or nature whatsoever on or for the demised
premises or any other space within the Building and shall vest no right in
either party. This Lease shall become effective as a lease only upon execution
and legal delivery thereof by the parties hereto. This Lease may be executed in
more than one counterpart, and each such counterpart shall be deemed to be an
original document.
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43. MORTGAGEE PROTECTION CLAUSE:
Lessee agrees to give any mortgage and/or trust deed holders, whose name
and address has been previously furnished to Lessee, by certified mail, a copy
of any notice of default served upon Lessor by Lessee. Lessee further agrees
that if Lessor shall have failed to cure such default within the time provided
for in this Lease, then the mortgagees and/or trust deed holders shall have such
additional time as may be necessary to cure such default (including, but not
limited to, commencement of foreclosure proceedings, if necessary to effect such
cure), in which event this Lease shall not be terminated while such remedies are
being so pursued.
44. PARTIAL INVALIDITY:
If any provision of this Lease or application thereof to any person or
circumstance shall to any extent be invalid, the remainder of this Lease or the
application of such provision to persons or circumstances other than those as to
which it is held invalid and shall not be affected thereby and each provision of
this Lease shall be valid and enforced to the fullest extent permitted by law.
45. HOLDING OVER:
Any holding over after the expiration of the term or any validly exercised
renewal term shall be construed to be a tenancy from month to month at the rent
equal to twice the base and additional rentals and other charges specified
herein (prorated on a monthly basis) and shall otherwise be on the terms herein
specified so far as applicable.
46. HAZARDOUS MATERIALS:
Neither Lessee, its successors or assigns, nor any permitted assignee or
sublessee, licensee or other person or entity acting by or through Lessee, shall
(either with or without negligence) cause or permit the escape, disposal or
release of any "Hazardous Substances, or Materials" (as hereinafter defined).
Lessee shall not allow the storage or use of such Hazardous Substances or
Materials in any manner not sanctioned by law and by the highest standards
prevailing in the industry for the storage and use of such Hazardous Substances
or Materials, nor allow to be brought into the Building, the Land, or the
demised premises any such Hazardous Substances or Materials except to use in the
ordinary course of Lessee's business, and then only if such Hazardous Substances
or Materials are not prohibited by (and are only in amounts permitted by) law,
after notice is given to, and written approval is received from, Lessor of the
identity and quantity of such Hazardous Substances or Materials. Without
limitation, Hazardous Substances or Materials shall include any biologically or
chemically active substance and any waste, pollutant, substance or material
described in Section 101(14) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time, 42 U.S.C.
Section 9601 et seq., the Resource Conservation and Recovery Act, as amended
from time to time, 42 U.S.C. Section 6901 et seq., any applicable state or local
laws and the regulations adopted under these acts. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of Hazardous Substances or Materials, then the reasonable costs thereof
shall be reimbursed by Lessee to Lessor upon demand as additional charges if
such requirement applies to the demised premises. In addition, Lessee shall
execute affidavits, representations and the like from time to time at Lessor's
request concerning Lessee's best knowledge and belief regarding the presence of
Hazardous Substances or Materials on the demised premises or the Property.
Lessee indemnifies and covenants and agrees at its sole cost and expense, to
protect and save Lessor harmless against and from any and all fines, damages,
losses, liabilities, obligations, penalties, claims, litigation, demands,
defenses, judgments, suits, proceedings, costs, disbursements or expenses of any
kind or of any nature whatsoever (including without limitation, reasonable
attorneys' fees and expert's fees) which may at any time be imposed upon,
incurred by or asserted or awarded against Lessor arising from or out of any
Hazardous Substances or Materials on, in, under or affecting the demised
premises, the Building or the Property, or any part thereof as a result of any
act or omission by Lessee, its successors or assigns, or any permitted assignee,
permitted sublessee or licensee or other person or entity acting at the
direction of or with the consent of Lessee. The within covenants shall survive
the expiration or earlier termination of the Lease Term.
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47. ESTOPPEL CERTIFICATE:
Lessee agrees, at any time, and from time to time, upon not less than ten
(10) days' prior notice by Lessor, to execute, acknowledge and deliver to
Lessor, a statement in writing addressed to Lessor or such other party as Lessor
shall designate, substantially in the form of Exhibit G attached hereto,
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating -the m)sidification), stating the dates to which base rent,
additional rent and other charges have been paid, the amount of security
deposited, if any, and stating whether or not there exists any default in the
performance of any covenant, agreement, term, provisions or condition contained
in this Lease, and, if so, specifying each such default and containing such
other information, items and certifications as Lessor shall request, it being
intended that any such statement delivered pursuant hereto may be relied upon by
Lessor and by any purchaser, mortgagee or prospective mortgagee of any mortgage
affecting all or any portion of the Office Park or Building and by any lessor
under a ground or underlying lease affecting all or any portion of the Office
Park or Building. Lessee irrevocably appoints Lessor as its attorney-in-fact,
coupled with an interest, to execute and deliver, for and in the name of Lessee,
any document or instrument provided for in this Section if Lessee fails to
provide same in a timely manner.
48. FINANCIAL STATEMENTS:
Lessee hereby agrees, from time to time and at the request of Lessor, to
furnish Lessor, within thirty (30) days of each such request, with such
financial statements of Lessee as Lessor shall require in order to reasonably
determine the financial condition of Lessee, certified as true and correct by an
officer of the Lessee. Such statements shall be prepared by an independent
certified public accountant and shall include, without limitation, Lessee's net
worth statements and statements of financial position and retained earnings
statement of Lessee and its subsidiaries, if any, for the preceding three (3)
years. Lessee agrees that Lessor may furnish any of its lenders or potential
lenders or purchasers copies of such financial statements and records. Lessor
agrees to hold, and to cause its lender and potential lenders and purchasers to
hold, such financial statements in confidence and not to disclose such records
to any party other than such party as shall have a financial interest in the
Office Park or the Building or who has a loan on all or any portion of the
Office Park or the Building or who is interested in making a loan on all or any
portion of the Office Park or the Building or who is interested in purchasing
all or a portion of the Office Park or the Building.
49. EXCULPATION OF LESSOR.
a. Notwithstanding any provision in this Lease to the contrary, Lessor
and Lessor's managing agent's liability with respect to or arising from or in
connection with this Lease shall be limited solely to Lessor's interest in the
Property. Neither Lessor, any of the partners of Lessor, any officer, director,
principal, trustee, policy holder, shareholder, attorney nor employee of Lessor
or its managing agent shall have any personal liability whatsoever with respect
to this Lease.
x. Xxxxxx and Lessor's managing agent shall have absolutely no personal
liability with respect to any provision of this Lease or any obligation or
liability arising from this Lease or in connection with this Lease. Lessee shall
look solely to the equity of Lessor in the Property for the satisfaction of any
money judgment to Lessee. Such exculpation of liability shall be absolute and
without exception whatsoever.
50. BANKRUPTCY.
a. The following shall be events of bankruptcy under this Lease: (i)
Lessee's becoming insolvent, as that term is defined in Title 11 of the United
States Code, entitled "Bankruptcy, 11 U.S.C., Sec. 101, et. seq." (the
"Bankruptcy Code"), or under applicable insolvency laws (the "Insolvency Laws");
(ii) the appointment of a receiver or custodian for any or all of Lessee's
property or assets, if such appointment shall not be dismissed within ninety
(90) days; or (iii) the filing of a voluntary petition under the provisions of
the Bankruptcy Code or the Insolvency Laws; or (iv) the filing of an involuntary
petition under the provisions of the Bankruptcy Code or the Insolvency Laws,
which is not dismissed within sixty (60) days of filing; or (v) Lessee's making
or consenting to an assignment for the benefit of creditors or a common law
composition of creditors.
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In the event of Lessee's bankruptcy, Lessor at its option may, in addition
to all other rights and remedies provided in this Lease at law or in equity,
terminate this Lease by giving written notice to Lessee. If termination of this
Lease shall be stayed by order of any court having jurisdiction over any
bankruptcy or insolvency proceeding or by federal or state statute, then,
following the expiration of any such stay, or if Lessee or Lessee as
debtor-in-possession or the trustee appointed in any such proceeding (being
collectively referred to as "Lessee" only for the purposes of this Section 50)
shall fail to assume Lessee's obligations under this Lease within the period
prescribed therefor by law or within fifteen (15) days after entry of the order
for relief or as may be allowed by the court, or if Lessee shall fail to provide
adequate protection of Lessor's right, title and interest in and to the demised
premises or adequate assurance of the complete and continuous future performance
of Lessee's obligation under this Lease, Lessor, to the extent permitted by law
or by leave of the court having jurisdiction over such proceeding, shall have
the right, at its election, to terminate this Lease on fifteen (15) days' notice
to Lessee and upon the expiration of said fifteen (15) day period this Lease
shall cease and expire as aforesaid and Lessee shall immediately quit and
surrender the demised premises as aforesaid. Upon the termination of this Lease
as provided above, Lessor, without notice, may re-enter and repossess the
demised premises using such force for that purpose as may be necessary without
being liable to indictment, prosecution or damages therefor and may dispossess
Lessee by summary proceedings or otherwise.
b. For the purposes of the preceding Section (a), adequate protection
of Lessor's right, title and interest in and to the demised premises, and
adequate assurance of the complete and continuous future performance of Lessee's
obligations under this Lease, shall include, without limitation, the following
requirements:
(i) that Lessee comply with all of its obligations under this
Lease;
(ii) that Lessee pay to Lessor, on the first day of each month
occurring subsequent to the entry of such order, or the effective date of such
stay, a sum equal to the amount by which the demised premises diminished in
value during the immediately preceding monthly period, but, in no event, shall
such amount be less than the aggregate Rent payable for such monthly period;
(iii) that Lessee continue to use the demised premises in the manner
originally required by the Lease;
(iv) that Lessor be permitted to supervise the performance of
Lessee's obligations under this Lease;
(v) that Lessee pay to Lessor within fifteen (15) days after entry
of such order or the effective date of such stay, as partial adequate protection
against future diminution in value of the premises and adequate assurance of the
complete and continuous future performance of Lessee's obligations under this
Lease, an additional Security Deposit in an amount acceptable to Lessor;
(vi) that Lessee has and will continue to have unencumbered assets
after the payment of all secured obligations and administrative expenses to
assure Lessor that sufficient funds will be available to fulfill the obligations
of Lessee under this Lease;
(vii) that if Lessee assumes this Lease and proposes to assign the
same (pursuant to Title II U.S.C. 'SS' 365, or as the same may be amended) to
any person who shall have made a bona fide offer to accept an assignment of this
Lease on terms acceptable to such court having competent jurisdiction over
Lessee's estate, then notice of such proposed assignment, setting forth (x) the
name and address of such person, (y) all of the terms and conditions of such
offer, and (z) the adequate assurance to be provided Lessor to assure such
person's future performance under this Lease, including, without limitation, the
assurances referred to in Title II U.S.C. 'SS' 365(b)(3), as it may be amended,
shall be given to Lessor by Lessee no later than fifteen (15) days after receipt
by Lessee of such offer, but in any event no later than thirty (30) days prior
to the date that Lessee shall make application to such court for authority and
approval to enter into such assignment and assumption, and Lessor shall
thereupon have the prior right and option, to be exercised by notice to Lessee
given at any time prior to the effective date of such proposed assignment, to
accept, or to cause Lessor's designee to accept, an assignment of this Lease
upon the same terms and conditions and for the same consideration, if any, as
the bona fide offer made by such person less any brokerage commissions which may
be payable out of the consideration to be paid by such person for the assignment
of this Lease; and
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(viii)that if Lessee assumes this Lease and proposes to assign the
same, and Lessor does not exercise its option pursuant to Section (vii) of this
Section 50. Lessee hereby agrees that:
A. such assignee shall have a net worth not less than the
net worth of Lessee as of the Commencement Date, or such Lessee's obligations
under this Lease shall be unconditionally guaranteed by a person having a net
worth equal to Lessee's net worth as of the Commencement Date;
B. such assignee shall not use the demised premises except
subject to all the restrictions contained in this Lease;
C. such assignee shall assume in writing all of the terms,
covenants and conditions of this Lease including, without limitation, all of
such terms, covenants and conditions respecting the Permitted Use and payment of
Rent, and such assignee shall provide Lessor with assurances satisfactory to
Lessor that it has the experience in operations having the same or substantially
similar uses as the Permitted Use, in properties similar to the Property,
sufficient to enable it so to comply with the terms, covenants and conditions of
this Lease and successfully operate the demised premises for the Permitted Use;
D. such assignee shall indemnify Lessor against, and pay to
Lessor the amount of, any payments which may be obligated to be made to any
Mortgagee by virtue of such assignment;
E. such assignee shall pay to Lessor an amount equal to the
unamortized portion of any construction allowance made to Lessee; and
F. if such assignee makes any payment to Lessee, or for
Lessee's account, for the right to assume this Lease (including, without
limitation, any lump sum payment, installment payment or payment in the nature
of rent over and above the Rent payable under this Lease), Lessee shall pay over
to Lessor one-half of any such payment, less any amount paid to Lessor pursuant
to clause (E) above on account of any construction allowance.
As a material inducement to Lessor executing this Lease, Lessee
acknowledges and agrees that Lessor is relying upon (i) the financial condition
and specific operating experience of Lessee and Lessee's obligation to use the
demised premises specifically in accordance with this Lease, (ii) Lessee's
timely performance of all of its obligations under this Lease notwithstanding
the entry of an order for relief under the Bankruptcy Code or the Insolvency
Laws for Lessee and (iii) all defaults under the Lease being cured promptly and
the Lease being assumed within 60 days of any order for relief entered under the
Bankruptcy Code or the Insolvency Laws for Lessee, or the Lease being rejected
within such 60-day period and the demised premises surrendered to Lessor.
Accordingly, in consideration of the mutual covenants contained in this
Lease and for other good and valuable consideration, Lessee hereby agrees that:
(i) All obligations that accrue under this Lease (including the
obligation to pay rent), from and after the date that a petition is filed or
other action is commenced under the Bankruptcy Code or the Insolvency Laws (an
"Action") shall be timely performed exactly as provided in this Lease and any
failure to so perform shall be harmful and prejudicial to Lessor;
(ii) Any and all rents that accrue from and after the date that an
Action is commenced and that are not paid as required by this Lease shall, in
the amount of such rents, constitute administrative expense claims allowable
under the Bankruptcy Code with priority of payment at least equal to that of any
other actual and necessary expenses incurred after the commencement of the
Action;
(iii) Any extension of the time period within which Lessee may
assume or reject the Lease without an obligation to cause all obligations under
the Lease to be performed as and when required under the Lease shall be harmful
and prejudicial to Lessor;
(iv) Any time period designated as the period within which Lessee
must cure all defaults and compensate Lessor for all pecuniary losses that
extends beyond the date of assumption of the Lease shall be harmful and
prejudicial to Lessor;
(v) Any assignment of the Lease must result in all terms and
conditions of the Lease being assumed by the assignee without alteration or
amendment, and any assignment that results in an amendment or alteration of the
terms and conditions of the Lease without the express written consent of Lessor
shall be harmful and prejudicial to Lessor;
22
(vi) Any proposed assignment of the Lease to an assignee: (1) that
will not use the demised premises specifically in accordance with the Lease, (2)
that does not possess financial condition, operating performance and experience
characteristics equal to or better than the financial condition, operating
performance and experience of Lessee as of the date of this Lease, or (3) that
does not provide guarantors of the Lease obligations with financial condition
equal to or better than the financial condition of the original guarantors of
the Lease as of the date of this Lease, shall be harmful and prejudicial to
Lessor;
(vii) The rejection (or deemed rejection) of the Lease for any
reason whatsoever shall constitute cause for immediate relief from the automatic
stay provisions of the Bankruptcy Code, and Lessee stipulates that such
automatic stay shall be lifted immediately and possession of the demised
premises will be delivered to Lessor immediately without the necessity of any
further action by Lessor.
No provision of this Lease shall be deemed a waiver of Lessor's
rights or remedies under the Bankruptcy Code, the Insolvency Laws, or applicable
law to oppose any assumption and/or assignment of this Lease, to require timely
performance of Lessee's obligations under this Lease, or to regain possession of
the demised premises as a result of the failure of Lessee to comply with the
terms and conditions of this Lease or the Bankruptcy Code.
Notwithstanding anything in this Lease to the contrary, all amounts
payable by Lessee to or on behalf of Lessor under this Lease, whether or not
expressly denominated as such, shall constitute "rent" for purposes of the
Bankruptcy Code.
For purposes of this Section addressing the rights and obligations
of Lessor and Lessee in the event that an Action is commenced, the term "Lessee"
shall include Lessee's successor in bankruptcy, whether a trustee, Lessee as
debtor in possession or other responsible person."
51. FORCE MAJEURE:
Notwithstanding any provision in this Lease to the contrary, Lessor shall
be excused for the period of any delay and shall not be deemed in default with
respect to the performance of any of the terms, covenants, and conditions of
this Lease when prevented from so doing by causes beyond Lessor's control, which
shall include, but not be limited to, all labor disputes, governmental
regulations or controls, fire or other casualty, inability to obtain any
material or services, or acts of God.
52. CONTROL OF COMMON AREAS AND PARKING FACILITIES:
All automobile parking areas, driveways, entrances and exits thereto, and
other facilities furnished by Lessor, including all parking areas, truck way or
ways, loading areas, pedestrian walkways and ramps, landscaped areas, stairways,
corridors, and other areas and improvements provided by Lessor for the general
use, in common (the "Common Areas"), of lessees, their officers, agents,
employees, servants, invitees, licensees, visitors, patrons and customers, shall
be at all times subject to the exclusive control and management of Lessor, and
Lessor shall have the right but not the obligation from time to time to
establish, modify, and enforce reasonable rules and regulations with respect to
the Common Areas; to police same, from time to time; to change the area, level
and location and arrangement of parking areas and other facilities hereinabove
referred to; to restrict parking by, and enforce parking charges (by operation
of meters or otherwise) to lessees, their officers, agents, invitees, employees,
servants, licensees, visitors, patrons, and customers; to close all or any
portion of said areas or facilities to such extent as may, in the opinion of
Lessor's counsel, be legally sufficient to prevent a dedication thereof or the
accrual of any rights to any person of the public therein; to close temporarily
all or any portion of the Common Areas; to discourage non-lessee parking; to
charge a fee for visitors and customer parking; and to do and perform such other
acts in and to said areas and improvements as, in the sole judgment of Lessor,
shall be advisable with a view to the improvement of the convenience and use
thereof by lessees, their officers, agents, employees, servants, invitees,
visitors, patrons, licensees and customers. Lessor will operate and maintain the
Common Areas in such a reasonable mariner as Lessor shall determine from time to
time. Without limiting the scope of such discretion, Lessor shall have the full
right and authority but not the obligation to designate a manager of the parking
facilities or Common Areas or other facilities, who shall have full authority to
make and enforce rules and regulations regarding the use of the same and to
employ all personnel and to make and enforce all Rules pertaining to, and
necessary for, the
23
proper operation and maintenance of the parking areas or the Common Areas.
Lessee shall comply (and shall require all persons within its control to comply)
with such Rules, upon notice of same.
53. CONDITIONS PRECEDENT
[Intentionally Deleted]
54. INTERFERENCE:
Lessor shall have no liability to Lessee nor shall Lessee have any right
to terminate this Lease or claim any offset against or reduction in any sum to
be paid hereunder because of interference with, or impairment to any extent, of
light, air, visibility, or view, or because of damage or inconvenience due to
noise, vibration or other matters resulting from the excavation, construction,
repair or addition of or to, buildings adjacent to or near the Property. No
easement of light or air is granted in this Lease or otherwise.
55. ADA:
Lessee shall be responsible for compliance with Title III of the Americans
with Disabilities Act of 1990 ("ADA") within the demised premises and Lessor
shall be responsible for compliance with Title III of the ADA relative to the
Common Areas within the remainder of the Property.
56. REPRESENTATIONS OF LESSEE:
Lessee by its execution hereof, represents and warrants to Lessor and its
successors and assigns that as of the date hereof Lessee is a duly established
and validly existing corporation of the State of New Jersey and that the
individual(s) signing this Lease on behalf of Lessee has(have) been duly
authorized to do so and thereby bind Lessee.
24
57. RESTRICTED AREAS:
Lessee will not have access to the rooftop or telephone closets without
prior written consent of Lessor.
IN WITNESS WHEREOF, we have hereunto set our hands and seals the day and
year first above written.
WITNESSES: LESSOR:
V-SULLYFIELD PROPERTIES V, LLC
By Its Manager: V-Sullyfield Manager V, LLC
/s/ Illegible By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------- ------------------------------
Name: Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Member
LESSEE:
WESTWOOD COMPUTER CORPORATION
/s/ Illegible By: /s/ Illegible
--------------------------------- ------------------------------
Name: Name:
Title:
25
LIST OF EXHIBITS
Exhibit A - Demised Premises
Exhibit B - Legal Description of Land
Exhibit C - Rules and Regulations
Exhibit D - Intentionally Omitted
Exhibit E - Prohibited Uses of Demised Premises
Exhibit F - Intentionally Omitted
Exhibit G - Estoppel Certificate
26
EXHIBIT A
DEMISED PREMISES
Mar 12 03 08:22a Xxxx X. Xxxxxxxx 7032789690 p.6
[GRAPHIC OMITTED]
A-1
EXHIBIT B
LEGAL DESCRIPTION OF LAND
ALL THOSE certain lots or parcels of land situated and lying in Fairfax County,
Virginia, and more particularly described as follows:
All of Lot Three (3) and Lot Four (4), XXXXX-XXXX AT SULLYFIELD, as the same is
shown on a plat attached to the Deed of Resubdivision and Easement recorded in
Deed Book 6279, at page 1903, among the Land Records of Fairfax County,
Virginia.
TOGETHER WITH the parking rights created for the benefit of Lot 3 by Declaration
of Covenant recorded among the aforesaid Land Records in Deed Book 7017, at page
330.
AND ALSO
All of Lot Five-A (5-A), being a consolidation of Xxxx 0, 0, xxx, XXXXX XXXX XX
SULLYFIELD, as the same is shown on a plat attached to the Deed of Consolidation
recorded in Deed Book 7371, at page 1604, among the Land Records of Fairfax
County, Virginia.
TOGETHER WITH AND SUBJECT TO the easement created for the benefit of all of the
above-described parcels in Article XI of the Protective Covenants for Sullyfield
Business Park recorded among the aforesaid Land Records in Deed Book 5849, at
page 1928.
B-1
EXHIBIT C
RULES AND REGULATIONS
The following rules and regulations have been adopted by Lessor for the care,
protection and benefit of the Building and for the general comfort and
welfare of all tenants:
1. The rights of Lessee in the sidewalks, entrances and corridors of
the Building are limited to ingress to and egress from the Demised Premises for
Lessee and its employees, licensees and invitees, and Lessee shall not use, or
permit use of, such sidewalks, entrances and corridors for any other purposes.
Lessor shall have the right to regulate the use of and operate the public
portions of the Building, as well as portions furnished for the common use of
the tenants, in such manner, as it deems best for the benefit of the tenants
generally.
2. Lessee shall lock the Demised Premises and shut off water faucets,
lights and electrical equipment and appliances located in the Demised Premises
before leaving the Demised Premises each day.
3. All deliveries and shipments shall be made only at Lessee's loading
dock(s) or other areas designated by Lessor.
4. Lessee shall place garbage and refuse only in trash containers
approved by Lessor. Such containers shall be kept either inside the Demised
Premises or outside the Demised Premises in such areas as designated by Lessor.
All refuse, especially food products, must be enclosed in sealed trash bags to
prevent attracting rodents, bees and other pests. The Lessor shall approve the
trash collection and disposal service which will be utilized to empty and haul
away such garbage and refuse and the times and days of the week such containers
shall be emptied. Lessee shall pay for the cost of the containers and the
periodic trash collection and disposal charges.
5. No wires of any kind or type (including, without limitation,
television, satellite and radio antennas) shall be attached to the outside of
the Building, and no wires shall be run or installed in any part of the Building
without Lessor's prior written consent.
6. Lessee shall not engage in any activity nor utilize any machinery or
apparatus that shall be heard, smelled or seen outside the Demised Premises.
7. Pallets or other furniture may not be placed in or near the
dumpsters but shall be stored outside of the Demised Premises and removed no
less than monthly.
8. Lessee shall not use the plumbing facilities (including sinks,
toilets and drains) serving the demised premises for the disposal of refuse or
any other improper use. Lessee shall, at its sole cost and expense, repair any
damage to such plumbing facilities caused by any such misuse.
9. No animals or birds shall be allowed in or about the Demised
Premises.
10. Except for Lessee's vehicles, Lessee shall not store any personal
property outside of the Demised Premises.
11. Lessee shall, at the request of Lessor, retain a pest and rodent
extermination service approved by Lessor, which shall periodically treat the
demised premises in a manner and at such times as are approved by Lessor.
12. Lessee shall not burn or incinerate trash, refuse or any other items
in or outside the Demised Premises.
13. Lessee shall not allow anyone to reside or sleep in the Demised
Premises.
14. Lessor shall not be responsible for any loss, theft or disappearance
of personal property from the Demised Premises and/or Business Park.
C-1
15. Lessee shall park only in those areas designated by Lessor. Lessee
shall comply with all directional and other signs posted in the parking areas
and shall use only one (1) parking stall per vehicle. Lessee shall not park
mobile homes, boats, boat trailers or similar vehicles in the common parking
areas. No inoperable vehicle shall be allowed to remain in the common parking
areas. All vehicles must have current State and County decals displayed. All
vehicles must have current State and County decals displayed. Any vehicle that
is parked in the common parking areas by Lessee in violation of these Rules and
Regulations may be towed away at Lessee's expense.
16. Lessee shall not cover all or any part of any window or door of the
Building without obtaining the prior written approval of Lessor.
17. Lessee shall not conduct or permit to be conducted any auction or
similar sale on or about the Demised Premises.
18. Lessor shall have the right to prescribe the weight and position of
safes and other objects of excessive weight on the second floor. If, in the
reasonable judgment of Lessor, it is necessary to distribute the concentrated
weight of any safe or heavy object, the work involved in such distribution shall
be done in such manner as Lessor shall reasonably determine and the expense
thereof shall be paid by Lessee. The moving of safes and other heavy objects
shall take place only upon previous notice to, and at times and in a manner
approved by Lessor, and the persons employed to move the same in and out of the
Building, shall be acceptable to Lessor.
19. Lessee shall not wash, service (oil changes, etc.) or repair any
vehicles on or about the Business Park.
20. Where any damage to the Building or to any portions used in common
with other tenants is caused by Lessee or its employees, licensees or invitees,
the cost of repairing the same shall be paid by Lessee upon demand.
21. Except as shall be approved in writing by Lessor, no lettering,
sign, advertisement, trademark, emblem, notice or object shall be displayed in
or on the windows or doors, or on the outside of the Demised Premises.
22. No dangerous, flammable, combustible or explosive object or material
shall be brought into or kept in the Building by Lessee or with the permission
of Lessee, except as permitted by law and the insurance companies insuring the
Building or the property therein.
23. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows in the Demised Premises and no lock on any door shall be
changed or altered in any respect. Duplicate keys for the Demised Premises and
toilet rooms, if applicable, shall be procured only from Lessor, and Lessee
shall pay to Lessor reasonable charge. Upon termination of the Lease, all keys
of the Demised Premises and toilet rooms shall be delivered to Lessor.
24. Smoking is prohibited in the building.
25. Lessee shall store all Hazardous Substances or Hazardous Materials
on secondary containment pallets or shall employ other secondary contaimment
devices to contain any spills and prevent releases to air, water or soils around
or under the Demised Premises, and all volatile or flammable materials shall be
kept and maintained in a cabinet specifically designed to contain flammable
materials.
26. Lessor reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed by Lessor when it deems it necessary,
desirable or proper for its best interest or for the best interests of the
tenants, and no rescission, alteration or waiver of any rule or regulation in
favor of one tenant shall operate as a rescission, alteration or waiver in favor
of any other tenant. Lessor shall not be responsible to Lessee for the
non-observance or violation by any other tenant of any of the rules or
regulations at any time prescribed by Lessor.
These Rules and Regulations and any amendments hereto are intended to
supplement the terms and provisions of the Lease and where possible shall be
applied and interpreted in a manner that is consistent with the terms and
provisions of the Lease. In the event of a conflict between the Lease
C-2
and these Rules and Regulations, or any amendments thereto, the Lease shall
govern. If Lessee fails to fully comply with these Rules and Regulations, Lessor
may, in its sole discretion and without waiving any other right or remedy,
undertake such actions on behalf of Lessee as Lessor determines are necessary to
cause Lessee to fully comply with these Rules and Regulations. All costs,
expenses and fees expended by Lessor to insure full compliance with these Rules
and Regulations shall constitute Additional Rent under the Lease and be
immediately due and payable by the Lessee upon demand.
C-3
EXHIBIT D
[INTENTIONALLY OMITTED]
D-1
EXHIBIT E
PROHIBITED USES OF DEMISED PREMISES
Notwithstanding anything to the contrary contained in the Lease, the
demised premises shall not be used for or as:
(a) a school or other school or instructional activities and
purposes; a church or other religious activities; a trade association office or
facility or to promote any trade association activities or similar purposes; a
union office or to promote union activities or purposes; government owned or
affiliated office or facility; any pornographic or prurient sex related activity
or purpose (such as, but not limited to, an escort service or telephone sex
service); a medical or dental office; or
(b) any office that, by its nature, shall involve operations
substantially on a round-the-clock, 24 hour basis; or shall constitute a
material additional burden to the services of the Building as compared to normal
general office uses for standard building hours and holidays.
E-1
EXHIBIT F
[INTENTIONALLY OMITTED]
F-1
EXHIBIT G
ESTOPPEL CERTIFICATE
To: ("Purchaser"), and any successor or assign of Purchaser
Re: Property Name: (the "Property")
Property Address: ,
Virginia Lease Date:
Between: ("Lessor") and
___________________________("Lessee")
Demised Premises: Suite_____________________(the "Premises")
Ladies/Gentlemen:
The undersigned Lessee understands that: (a) the Lessor has entered into
an agreement to sell the Property to Purchaser; and (b) Purchaser is relying on
this Estoppel Certificate in connection with the purchase of the Property.
Lessor has requested Lessee to deliver this Estoppel Certificate to Purchaser.
Lessee hereby certifies to Purchaser and its successors and assigns, as of the
date hereof, as follows:
1. The Lease has not been supplemented, amended or modified, except as
follows:
(the Lease as supplemented, amended, and modified is herein referred to as the
"Lease"). The Lease is in full force and effect and represents the entire
agreement between Lessor and Lessee as to the Premises. A true, correct and
complete copy of the Lease (including all supplements, amendments and
modifications) is attached hereto as Exhibit "A",
2. The Premises consist of approximately square feet of rentable area.
The present use of the Premises does not violate any provisions of the Lease
regarding the permitted use or operation of the Premises. Lessee has accepted
possession of the Premises, is in full occupancy thereof, and has not assigned
or sublet any portion of the Lease or Premises.
3. The monthly rentals currently being paid for the Premises are as
follows:
base rent $
operating costs $______________________
real estate taxes $______________________
parking $______________________
other [_____________] $______________________
Lessee has paid all rent and other amounts required under the Lease
through____________________ 2003. Lessee has not paid rent or other amount due
under the Lease more than 30 days in advance. Rentals due under the Lease
escalate as follows:
4. ________________________ The commencement date of the Lease was ,
2003. The current term of the Lease expires on______________________________.
(subject only to any renewal/extension options identified below). Lessee has the
right to renew/extend the Lease pursuant to the following (and only the
following) renewal/extension options:
Lessee has no right or option to terminate the Lease prior to the
expiration of its stated term.
5. Lessor has the right to terminate the Lease on___ days prior written
notice.
6. Lessee pays a full pro rata share of operating costs and real estate
taxes as described in the Lease. Lessee's pro rata share of operating costs and
real estate taxes is ________%. Lessee has paid its share of all such operating
charges and real estate taxes in full for the period
ending______________________________________________________________________
G-1
7. Lessee's security deposit under the Lease, currently on deposit with
Lessor, is $____________________ (the "Security Deposit"). Lessee has paid no
other deposit or amount to Lessor which is required to be returned to Lessee. To
Lessee's knowledge, Lessor has not drawn against the Security Deposit for rent
due or for any other purpose. Lessor is not required to provide to Lessee any
interest on the principal amount of the Security Deposit.
8. No default on the part of Lessor or Lessee exists under the
Lease. No event has occurred which, with the giving of notice, the passage of
time, or both, would constitute a default by Lessee or Lessor. Lessee has no
offset, defense, deduction or claim against Lessor.
9. All obligations of Lessor to provide (a) maintenance, service and
repairs at or to the Premises and/or Property, and (b) free rent, rent rebates,
improvements or tenant improvement contributions, have been completed, accepted
and satisfied in full through the date hereof. Lessor is not obligated to Lessee
for any rent or other obligations under any other lease.
10. Lessee has no right or option to (a) expand the Premises, (b) lease
additional space at the Property, (c) relocate to different space, or (d)
exercise a first refusal right with respect to any other space in the Property,
except for the following (and only the following) rights or options: .
Lessee has no option or right pursuant to the Lease or otherwise to purchase the
Property, or any part thereof.
11. Lessee's obligations under the Lease have been guaranteed by (the
"Guarantor"). No bankruptcy or insolvency proceedings are pending by or against,
or contemplated by, Lessee or any Guarantor.
12. No commission or other payment is due to any broker, consultant or
agent by Lessee in connection with the leasing of the Premises. Lessee is not a
party to any agreement, oral or written, pursuant to which any broker,
consultant or agent is entitled to any payment or commission in connection with
the leasing of the Premises, including without limitation any current or future
renewals or extensions of the Lease, or expansions of the Premises.
13. Lessee has not contracted for, or within the past 120 days caused,
any new construction or repair work to be performed on the Property, or, if
performed, the costs of such work, including all costs of labor, supplies and
materials, have been paid in full.
14. Lessee is in full compliance with its obligations under the Lease to
maintain the insurance policies and coverage required therein. Lessee agrees to
amend said insurance coverage to name Purchaser thereunder as an additional
insured party.
15. Lessee's address for the delivery of notices (and the address of any
other party required to receive copies of notices) under the Lease is as
follows:
The statements contained herein may be relied upon by Purchaser and its
successors and assigns. The person executing and delivering this Estoppel
Certificate on behalf of Lessee hereby certifies that he/she is duly authorized
to do so.
LESSEE:
Date:_____________, 2003
By: Name:
Title:
G-2
