EXHIBIT 10.16
Xxxxx-Xxxxxx & Associates, Inc.
Full Service Lease
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DEED OF LEASE
BETWEEN
SPACE, LLC
AND
TREX COMPANY, LLC,
as Tenant
Dated: June 15, 2000
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For Premises Located At:
Trex Xxxxxx Xxxxxx Xxxxxxxx 0
Xxxxxxxxxx, Xxxxxxxx
TABLE OF CONTENTS
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Page
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ARTICLE 1: BASIC LEASE PROVISIONS................................ 1
ARTICLE 2: DEFINITIONS........................................... 2
ARTICLE 3: THE PREMISES.......................................... 4
ARTICLE 4: TERM.................................................. 5
ARTICLE 5: RENT.................................................. 5
ARTICLE 6: SECURITY DEPOSIT...................................... 6
ARTICLE 7: OPERATING EXPENSES.................................... 6
ARTICLE 8: TAXES................................................. 9
ARTICLE 9: PARKING............................................... 10
ARTICLE 10: USE................................................... 10
ARTICLE 11: ASSIGNMENT AND SUBLETTING............................. 11
ARTICLE 12: MAINTENANCE AND REPAIR................................ 11
ARTICLE 13: INITIAL CONSTRUCTION; ALTERATIONS..................... 13
ARTICLE 14: SIGNS................................................. 14
ARTICLE 15: TENANT'S EQUIPMENT AND PROPERTY....................... 14
ARTICLE 16: RIGHT OF ENTRY........................................ 15
ARTICLE 17: INSURANCE............................................. 15
ARTICLE 18: LANDLORD SERVICES AND UTILITIES....................... 17
ARTICLE 19: LIABILITY OF LANDLORD................................. 18
ARTICLE 20: RULES AND REGULATIONS................................. 18
ARTICLE 21: DAMAGE; CONDEMNATION.................................. 19
ARTICLE 22: DEFAULT............................................... 20
ARTICLE 23: MORTGAGES............................................. 22
ARTICLE 24: SURRENDER; HOLDING OVER............................... 23
ARTICLE 25: QUIET ENJOYMENT....................................... 23
ARTICLE 26: TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS...... 24
ARTICLE 27: MISCELLANEOUS......................................... 25
LIST OF EXHIBITS
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Exhibit A-1 Plan Showing Premises
Exhibit A-2 Plat Showing Land and Building
Exhibit B Rules and Regulations
Exhibit C Guaranty of Lease
Exhibit D Lease Commencement Certificate
Exhibit E Prohibited Uses
Exhibit F Work Agreement
Exhibit G Covenants and Restrictions
Exhibit H Subordination, Non-Disturbance and Attornment Agreement
DEED OF LEASE
THIS DEED OF LEASE (:Lease:) is made as of the 15th day of June, 2000 (the
"Date of Lease"), by and between Space, LLC ("Landlord"), and Trex Company, LLC
("Tenant").
Landlord and Tenant, intending legally to be bound, hereby covenant and
agree as set forth below.
ARTICLE 1: BASIC LEASE PROVISIONS
The following terms, when used herein, shall have the meanings set forth
below.
1.1 Premises. Approximately 35,928 rentable square feet, known as Suites
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300 & 400 and located on the top two (2) floors of the Building as
outlined on Exhibit A-1 attached hereto and made a part hereof, which
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square footage is subject to confirmation by Tenant's architect.
1.2 Building. The building containing approximately 60,000 gross rentable
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square feet shown on Exhibit A-1 attached hereto and made a part
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hereof, and all Alterations, additions, improvements, restorations or
replacements now or hereafter made thereto, with an address of 0000
Xxxxx Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx.
1.3 Term. 10 years, 0 months and 0 days plus any exercised renewal
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periods.
1.4 Commencement Date. As set forth in Article 4.
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1.5 Expiration Date. Ten (10) Lease Years after the Commencement Date.
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1.6 Fixed Rent. $21.50 for each rentable square foot of the Premises for
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the first through the third Lease Year which is equal to a total of
$772,452 for each of the first three (3) Lease Years payable in equal
monthly installments of $64,371. The Fixed Rent shall be increased
annually by an amount equal to two and one half percent (2-1/2%) of
the previous Lease Year's Fixed Rent commencing with the fourth Lease
Year.
For the purposes of this full-service lease, $15.69 has been
attributed to the base rent and $5.81 per rentable square foot per
annum has been allowed for operating costs. The Landlord will perform
an operating costs reconciliation each January 1st beginning with the
first full year of operation. Operating costs are estimated to be
$5.21 per rentable square foot of the Premises per annum. The Tenant
shall be due 50% of operating costs savings for each Calendar Year, if
any, which shall be the difference between allocated operating costs,
$5.81 per rentable square foot per annum, and actual per rentable
square foot operating costs per annum. Example: If reconciled
operating costs are $5.50 per rentable square foot of the Premises per
annum, then Tenant shall be due a rebate of 50%, the difference
between $5.81 and $5.50 or $.155 per rentable square foot per year
which shall be paid by Landlord to Tenant within thirty (30) days
after the operating expense reconciliation.
1.7 Intentionally Deleted.
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1.8 Intentionally Deleted.
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1.9 Intentionally Deleted.
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1.10 Intentionally Deleted.
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1.11 Intentionally Deleted.
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1.12 Business Hours. Utilities pursuant to Section 18.1(i) are furnished
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for Tenant's normal business operations. Under no circumstances will
HVAC or other utilities, including but not limited to electricity,
water, etc. be turned off unless necessary for repairs.
1.13 Parking Space Allocation. Not more than Tenant's proportionate share
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of available parking spaces, which shall be in unreserved, non-
exclusive parking spaces available in the Parking Facilities.
1.14 Permitted Use. Any lawful purpose. The Permitted Use shall be deemed
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to expressly include but not be limited to any use of any other
occupant of the Building as allowed from time to time.
1.15 Intentionally Deleted.
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1.16 Broker(s). None.
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1.17 Landlord's Address. Xxxxx Xxxxx, The Xxxxx Companies, The Xxxx Xxxxx
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Building, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, with a copy to
Xxxxxx Xxxxx Xxxxxx, Xxxxxx and Silek, P.L.C., X.X. Xxx 0000,
Xxxxxxxxxx, XX 00000
1.18 Tenant's Address. Before occupancy: 00 Xxxxx Xxxxxxx Xxxxxx,
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Xxxxxxxxxx, Xxxxxxxx; after occupancy: at the Premises; either with a
copy to Hirschel, Savitz, Xxxxxx & Xxxxxxx, Attn: Xxxxx Xxxxx, 000
Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000.
1.19 Guarantor and Guarantor' Address. Trex Company, Inc. Before
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occupancy: 00 X. Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx; after
occupancy: at the Premises; either with a copy to Hirschel, Savitz,
Xxxxxx & Xxxxxxx, Attn: Xxxxx Xxxxx, 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxxxx, XX 00000.
ARTICLE 2: DEFINITIONS
The following terms, when used herein, shall have the meanings set forth
below.
2.1 Additional Rent. As defined in Section 5.3.
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2.2 Agents. Officers, partners, directors, employees, agents, licensees,
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customers, contractors, and invitees.
2.3 Alterations. Alterations, decorations, additions or improvements of
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any kind or nature to the Premises or the Building, whether structural
or non-structural, interior, exterior or
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otherwise.
2.4 Calendar Year. A period of twelve (12) months commencing on each
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January 1 during the Term, except that the first Calendar Year shall
be that period from and including the Commencement Date through
December 31 of that same year, and the last Calendar Year shall be
that period from and including the last January 1 of the Term through
the earlier of the Expiration Date or date of Lease termination.
2.5 Common Area. All areas, improvements, facilities and equipment in the
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Building outside of any tenant's premises and within the area
designated as the Common Area Envelope on Exhibit A-2, from time to
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time designated by Landlord for the common use or benefit of Tenant,
other tenants of the Building and their Agents, including, without
limitation, entrances and exits, landscaped areas, exterior lighting,
loading areas, pedestrian walk-ways, sidewalks, atriums, courtyards,
concourses, stairs, ramps, washrooms, maintenance and utility rooms
and closets, exterior utility lines, hallways, lobbies, elevators and
their housing and rooms, common window areas, common walls, common
ceilings, common trash areas and Parking Facilities. In no event
shall the Common Area include areas of the Land allocable to any other
structures, including but not limited to parking garage, shopping
centers, theaters, gas stations, hotels or other buildings which are
not the Building.
2.6 Guaranty. The Guaranty of Lease executed by the Guarantor in the form
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of Exhibit C attached hereto and made a part hereof.
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2.7 Event of Default. As defined in Article 22.
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2.8 Herein, hereafter, hereunder and hereof. Under this Lease, including,
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without limitation, all Exhibits and any Riders.
2.9 Interest Rate. Per annum interest rate listed as the base rate on
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corporate loans at large U. S. money center commercial banks as
published from time to time under "Money Rates" in the Wall Street
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Journal plus three percent (3%), but in no event greater than the
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maximum rate permitted by law. In the event the Wall Street Journal
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ceases to publish such rates, Landlord and Tenant shall choose a
similar publication which publishes such rates.
2.10 Land. The piece or parcel of land described in Exhibit A-2 and all
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rights, easements and appurtenances thereunto belonging or pertaining,
or such portion thereof as shall be reasonably allocated by Landlord
to the Building.
2.11 Lease Year. Each consecutive twelve (12) month period elapsing after
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(i) the Commencement Date if the Commencement Date occurs on the first
day of a month, or (ii) the first day of the month following the
Commencement Date if the Commencement Date does not occur on the first
day of the month.
2.12 Mortgage. Any mortgage, deed of trust, security interest or title
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retention interest affecting the Building or the Land.
2.13 Mortgagee. The holder of any note or obligation secured by a
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mortgage, deed of trust, security interest or title retention interest
affecting the Building or the Land, including,
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without limitation, lessors under ground leases, sale-leasebacks and
lease-leasebacks.
2.14 Operating Expenses. As defined in Sections 7.1 and 7.2.
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2.15 Parking Facilities. All parking areas now or hereafter made available
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by Landlord for use by tenants, including, without limitation, open-
air parking, and parking areas under or within the Building, whether
reserved, exclusive, non-exclusive or otherwise.
2.16 Real Estate Taxes. As defined in Section 8.2.
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2.17 Rent. Fixed Rent and Additional Rent.
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2.18 Rules and Regulations. The rules and regulations set forth in Exhibit
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B attached hereto and made a part hereof, as the same may be
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reasonably amended or supplemented from time to time (after reasonable
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notice to Tenant) provided they are uniformly applied to all occupants
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of the Building.
2.19 Substantial Completion. As defined in the Work Agreement attached
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hereto and made a part hereof as Exhibit F.
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2.20 Substantial Part. More than eighty percent (80%) of the rentable
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square feet of the Premises or the Building, as the case may be.
2.21 Work Agreement. As set forth in Exhibit F attached hereto and made a
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part hereof.
ARTICLE 3: THE PREMISES
3.1 Lease of Premises. In consideration of the agreements contained
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herein, Landlord hereby leases the Premises to Tenant, and Tenant
hereby leases the Premises from Landlord, for the Term and upon the
terms and conditions hereinafter provided. As an appurtenance to the
Premises, Tenant shall have the non-exclusive right, together with
other tenants of the Building and their Agents, to use the Common
Area. Subject to the provisions of this Lease, Landlord shall retain
absolute domain and control over the Common Area and shall operate and
maintain the Common Area in such manner as Landlord, in its sole
discretion, shall determine; provided the Building is maintained as a
Class A office building and provided such right shall not operate to
interfere with Tenant's use of the Premises for the Permitted Use.
Landlord expressly reserves the right permanently to change, modify or
eliminate, or temporarily to close, any portion of the Common Area
provided it does not materially interfere with Tenant's use and
occupancy of the Premises or the Building. The Premises are leased
subject to, and Tenant agrees not to violate, all covenants,
conditions and restrictions of record which affect the Building as are
negotiated in good faith between the parties and as are attached
hereto as Exhibit G. In no event may Landlord allow the number of
parking spaces in the Common Area to be diminished.
3.2 Landlord's Reservations. In addition to the other rights of Landlord
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under this Lease, Landlord reserves the right (i) to change the street
address and/or name of the Building (provided however if Landlord
changes the name without Tenant's consent, Landlord shall reimburse
Tenant for all costs incurred in connection therewith, including but
not
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limited to costs of change in stationery, business cards and advising
Tenant's clients of such change), (ii) to install, erect, use,
maintain and repair mains, pipes, conduits and other such facilities
to serve the Building's tenants in and through the Premises, after
twenty-four (24) hours notice unless in the event of an emergency
provided the same are located in a place which cannot be seen from
within the Premises and such installation, maintenance or repair shall
not interfere with the operation of Tenant's business, (iii) to grant
to anyone the exclusive right to conduct any particular business or
undertaking in the Building, provided the same does not restrict
Tenant's ability to use and occupy the Premises as set forth in this
Lease, (iv) to establish a condominium regime for the Building, the
Land and/or the Common Area and to include the Premises therein, so
long as the same is at no cost to Tenant and that the terms of this
Lease remain in full force and effect and are unmodified (v) to
control the use of the roof and exterior walls of the Building for any
purpose and (vi) to use Tenant's name in promotional materials
relating to the Building as long as Tenant is a tenant. Landlord may
exercise any or all of the foregoing rights without being deemed to be
guilty of an eviction, actual or constructive, or a disturbance or
interruption of the business of Tenant or Tenant's use or occupancy of
the Premises provided Landlord's actions are reasonable and do not
materially interfere with Tenant's business. In no event may Landlord
lease space in the Building for any of the agreed Prohibited Uses set
forth on Exhibit E. In the event the exercise of Landlord's rights
hereunder materially interferes with the operation of Tenant's
business, all rent shall xxxxx during such period of material
interference. In the event such interference continues for one hundred
twenty (120) consecutive days, Tenant may terminate this Lease.
ARTICLE 4: TERM
The Term shall commence on the Commencement Date and expire at midnight on
the Expiration Date. Except as otherwise set forth in Exhibit F, the
Commencement Date shall be the later of (a) June 1, 2001 or (b) sixty (60)
days after the date of Substantial Completion. The first sixty days are
intended to be rent free. Notwithstanding what is stated above, the first
monthly payment shall be due on the Commencement Date. The date of
Substantial Completion shall be the date when (a) the work to be performed
by Landlord in the Premises in accordance with this Lease shall have been
substantially completed notwithstanding that certain minor details of
decoration remain to be performed, the non-completion of which would not
materially interfere with the Tenant's use of the Premises ("Punch List
Items"), (b) Landlord has completed the Building so that the same is ready
for occupancy by tenants, and (c) all areas within the Common Area Envelope
have been substantially completed but not prior to April 15, 2001. All
Punch List Items or work to be performed by Landlord shall be completed by
Landlord within thirty (30) days. The Expiration Date shall be adjusted so
that the period of the Term is not changed. Promptly after the
Commencement Date is ascertained, Landlord and Tenant shall execute a
certificate confirming the Commencement Date which certificate shall be in
the form of Exhibit D attached hereto and made a part hereof. Tenant shall
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cause said certificate to be executed on behalf of the Tenant within
fifteen (15) days of receipt from Landlord. The Term shall include any
option periods. Notwithstanding what is stated above, the Landlord shall
not be responsible for any delays in the delivery of the Premises if said
delays are caused by the Tenant, its architect or subcontractor(s).
ARTICLE 5: RENT
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5.1 Fixed Rent. Commencing on the Commencement Date, Tenant shall pay to
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Landlord the Fixed Rent as specified in Section 1.6.
5.2 Payment of Fixed Rent. Fixed Rent for each Lease Year shall be
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payable in equal monthly installments, in advance, without demand,
notice, deduction, offset or counterclaim (except as otherwise
provided in this Lease), on or before the first day of each and every
calendar month during the Term prorated for any partial month; Tenant
shall pay the Fixed Rent and all Additional Rent, by good check or in
lawful currency of the United States of America, to Landlord at
Landlord's Address, or to such other address or in such other manner
as Landlord from time to time specifies by written notice to Tenant.
Any payment made by Tenant to Landlord on account of Fixed Rent may be
credited by Landlord to the payment of any late charges then due and
payable and to any Fixed Rent or Additional Rent then past due before
being credited to Fixed Rent currently due.
5.3 Intentionally Deleted.
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ARTICLE 6: INTENTIONALLY DELETED
ARTICLE 7: OPERATING EXPENSES
7.1 Operating Expenses Defined. As used herein, the term "Operating
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Expenses" shall mean all expenses and costs which Landlord incurs
because of or in connection with the ownership, maintenance,
management and operation of the Building. Operating Expenses shall
include, without limitation, all reasonable actual costs, expenses and
disbursements incurred or made in connection with the following:
(i) Wages and salaries of all on-site management agent, staff,
below the level of property manager whether employed by
Landlord or the Building's management company, engaged in the
operation and maintenance or security of the Building and all
costs related to or associated with such employees or the
carrying out of their duties, including uniforms and their
cleaning, taxes, auto allowances and insurance and benefits
(including without limitation, contributions to pension and/or
profit sharing plans and vacation or other paid absences);
(ii) All supplies and materials, including janitorial and lighting
supplies, used directly in the operation and maintenance of the
Building, Common Area and Parking Facilities allocable to the
Building.
(iii) All utilities, including, without limitation, electricity,
telephone (including, without limitation, all costs and
expenses of telephone service for the sprinkler alarm systems,
if any), water, sewer, power, gas heating, lighting and air
conditioning for the Building, except to the extent such
utilities are chargeable or separately metered to a tenant of
the Building;
(iv) All insurance purchased by Landlord or the Building's
management company relating to the Building and its
improvements specifically allocated to the Building and any
equipment or other property contained therein or located
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thereon including, without limitation, casualty, liability,
rental loss, sprinkler and water damage insurance but not
including any deductible for such insurance;
(v) All non-structural repairs to the Building (excluding repairs,
the cost of which are recoverable by the proceeds of insurance
or by Tenant or other third parties other than as part of the
Operating Expenses);
(vi) All maintenance of the Building, including, without limitation,
painting, ice and snow removal, landscaping, groundskeeping and
the patching of driveways and parking lots allocable to the
Building;
(vii) Intentionally Deleted;
(viii) All commercially reasonable maintenance, operation and service
agreements for the Building, and any equipment related thereto,
including, without limitation, service and/or maintenance
agreements for the sprinkler system in the Building, if any
(excluding those chargeable to Tenant or any third parties
other than as a part of Operating Expenses);
(ix) Accounting and legal fees incurred in connection with the
operation and maintenance of the Building or related thereto,
to the extent the same actually results in a reduction in
Operating Expenses;
(x) Intentionally Deleted;
(xi) All computer rentals for energy management or security
monitoring system used to reduce Operating Expenses, if any;
(xii) Any capital improvements made to the Building after the
Commencement Date (other than those made for the addition of
rentable square footage to the Building or for the sole benefit
of a Building tenant pursuant to its Lease), (but only to the
extent that such capital improvement actually results in the
reduction of Operating Expenses) the cost of which shall be
amortized over the useful life of such improvement; and
(xiii) Intentionally Deleted.
7.2 Exclusions from Operating Expenses. Operating Expenses shall not
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include the following:
(i) Legal fees, space planners' fees, real estate brokers' leasing
commissions and advertising expenses incurred in connection
with the original or future leasing of space in the Building;
(ii) Costs and expenses of Alterations or improvements of the
Premises or the leasehold premises of other individual tenants;
(iii) Depreciation, interest and principal payments on mortgages and
other debt costs, if any;
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(iv) Costs and expenses associated with the operation of the
business of the person or entity which constitutes Landlord as
the same are distinguished from the costs of operation of the
Building, including accounting and legal matters, costs of
defending any lawsuits with any mortgagee (except to the extent
the actions of Tenants or any other tenant may be in issue),
costs of selling or financing any of Landlord's interest in the
Building and outside fees paid in connection with disputes with
other tenants;
(v) Costs and expenses resulting from the negligence or willful
misconduct of Landlord or its Agents to the extent provable by
Tenant;
(vi) Real Estate Taxes as defined in Section 8.2.
(vii) management or administrative fees;
(viii) Intentionally deleted;
(ix) the cost of Landlord's federal, state or local income taxes;
(x) the expense of rental payments made by Landlord pursuant to any
grant or lease covering any or all of the Building or the Land;
(xi) charges or fees for, or taxes on, the furnishing of water,
sewer service, gas, fuel, electricity or other utility services
to those portions of the Building or the Land which are leased
to or occupied by tenants, which are separately metered or
submetered;
(xii) the cost of providing janitorial or trash removal service to
those portions of the Building or the Land which are leased to
or occupied by tenants and separately chargeable to such
tenants or occupants;
(xiii) the cost of removing asbestos and all other hazardous
substances, if any, located in, on or within the Land, and the
costs of complying with all laws, rules, orders and regulations
concerning hazardous substances (including asbestos) of all
governmental, quasi-governmental or judicial authorities;
(xiv) the costs incurred in repairing or replacing the roof or the
structural portions of the Building or any building or
structure on the Land;
(xv) the cost of new construction or renovation of the Building or
any building or structure on the Land;
(xvi) expenses related to security guards;
(xvii) expenses incurred solely for the benefit of tenants other than
the office tenants of the Building generally;
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(xviii) expenses incurred solely for the benefit of any one office
tenant unless such expenses are also incurred for all other
office tenants of the Building;
(xix) the costs of complying with all laws, rules, orders and
regulations of all governmental, quasi-governmental or
judicial authorities concerning any improvements or
Alterations to the Building or the Land unless said costs are
incurred for the benefit of all tenants; or
(xx) Intentionally Deleted.
7.3 Reconciliation Statement. For the purposes of this full-service lease,
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$15.69 has been attributed to the base rent and $5.81 per rentable
square foot per annum has been allowed for operating costs. The
Landlord will perform an operating costs reconciliation each January
1st beginning with the first full year of operation. Operating costs
are estimated to be $5.21 per rentable square foot of the Premises per
annum. The Tenant shall be due 50% of operating costs savings for
each Calendar Year, if any, which shall be the difference between
allocated operating costs, $5.81 per rentable square foot per annum,
and actual per rentable square foot operating costs per annum.
Example: If reconciled operating costs are $5.50 per rentable square
foot of the Premises per annum, then Tenant shall be due a rebate of
50%, the difference between $5.81 and $5.50 or $.155 per rentable
square foot per year which shall be paid by Landlord to Tenant within
thirty (30) days after the operating expense reconciliation.
7.4 Tenant's Right to Audit. In the event Tenant shall dispute the amount
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set forth in Landlord's statement as described in Section 7.4 herein,
Tenant shall have the right, not later than eighteen (18) months
following receipt of such statement, to cause Landlord's books and
records with respect to the preceding Calendar Year to be audited.
Such audit shall occur upon not less than five (5) days prior written
notice to Landlord, at Landlord's place of business or the actual
location of Landlord's books and records if different from Landlord's
place of business, provided the same is within the continental United
States during Landlord's normal business hours. The amounts payable
under this Section by Landlord to Tenant or by Tenant to Landlord, as
the case may be, shall be appropriately adjusted on the basis of such
audit. If such audit discloses a liability for further refund by
Landlord to Tenant in excess of five percent (5%) of the payments
previously made by Tenant for such Calendar Year, the cost of such
audit shall be borne by Landlord and shall not be considered as an
Operating Expense for purposes of this Lease; otherwise, the cost of
such audit shall be borne by Tenant. Notwithstanding the foregoing,
in no event shall Landlord's cost for such audit exceed one thousand
dollars ($1,000.00).
ARTICLE 8: TAXES
8.1 Real Estate Taxes Defined. As used herein, the term "Real Estate
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Taxes" shall mean all taxes and assessments which have accrued within
the Term of this Lease, including but not limited to, general or
special, ordinary or extraordinary, foreseen or unforseen, assessed,
levied or imposed by any governmental authority upon the Building and
the Land and upon the fixtures, machinery, equipment or systems in,
upon or used in connection with any of the foregoing, and the rental,
revenue or receipts derived therefrom, under the current or any future
taxation or assessment system or modification of, supplement to, or
substitute for such system. Real Estate Taxes also shall include
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special assessments which are in the nature of or in substitution for
real estate taxes, including, without limitation, road improvement
assessments, special use area assessments and school district
assessments. If at any time the method of taxation prevailing at the
Date of Lease shall be altered so that in lieu of, as a substitute for
or in addition to the whole or any part of the taxes now levied or
assessed, there shall be levied or assessed a tax of whatever nature,
then the same shall be included as Real Estate Taxes hereunder.
Further, for the purposes of this Article, Real Estate Taxes shall
include the reasonable expenses (including, without limitation,
reasonable attorney's fees) incurred by Landlord in challenging or
obtaining or attempting to obtain a reduction of such Real Estate
Taxes, to the extent of any reduction. Notwithstanding the foregoing,
Landlord shall have no obligation to challenge Real Estate Taxes. If
as a result of any such challenge, a tax refund is made to Landlord,
then the amount of such refund less the reasonable expenses of the
challenge shall be deducted from Real Estate Taxes due in the Lease
Year such refund is received.
Notwithstanding the foregoing, Real Estate Taxes shall not include
penalties and interest on taxes resulting from Landlord's delinquency in paying
the same nor any inheritance, estate, succession, transfer, gift, franchise or
corporation tax (such corporation tax shall include taxies levied solely against
a corporation or similar entity or corporate taxes or the like; such corporation
tax shall exclude taxes included on, for example, utility bills or bills for
goods or services incurred in relation to the operation of the Building or the
Common Area Envelope) levied or imposed upon Landlord nor any real estate
transfer tax, mortgage lien tax, documentary stamp tax, recording fees or the
like.
Real Estate Taxes shall also exclude any rent, gross receipt, business
taxes, income or profit tax of any kind whatsoever. Notwithstanding anything in
this Section to the contrary, (i) if any betterments assessment is payable in
installments, the Real Estate Taxes for any tax year shall include only such
installments of such betterments assessment as is allocable to such tax year,
(ii) if for any tax year included within the Term of this Lease a betterments
assessment is assessed for an improvement (such as a street or sewer) made,
commenced, or authorized prior to the time the Building first opens for
business, then, except for any front foot benefit charges and except as
hereinafter provided, such assessment shall not be included in the definition of
Real Estate Taxes for any tax year.
ARTICLE 9: PARKING
9.1 Changes to Parking Facilities. Subject to Section 3.1, Landlord shall
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have the right, from time to time, without Tenant's consent, to
change, alter, add to, temporarily close or otherwise affect the
Parking Facilities in such manner as Landlord may decide provided the
total number of parking spaces allocable to the Building does not
decrease and that Landlord's actions do not materially interfere with
Tenant's use of the Premises. The total number of parking spaces
shall be not less than two hundred forty (240) or as required by law
to the extent applicable to the Building, whichever is greater. One
hundred sixty-five (165) of said parking spaces shall be designated by
Landlord for Tenant's exclusive use and eleven (11) of which shall be
located in front of the Building as marked on Exhibit A-2 as "Trex
Visitor" spaces. Upon request by Tenant, Landlord shall use
commercially reasonable efforts to ensure and enforce Tenant's right
to use exclusive parking spaces. Any material change to the parking
area as is defined on Exhibit A-2 shall be preapproved by Tenant.
Said approval shall not be unreasonably withheld, conditioned or
delayed.
-10-
ARTICLE 10: USE
Tenant shall occupy the Premises solely for the Permitted Use. The
Premises shall not be used for any other purpose without the prior written
consent of Landlord which consent shall not be unreasonably withheld,
conditioned, or delayed. Tenant shall comply, at Tenant's expense, with
(i) all present and future laws, ordinances, rules, requirements,
regulations and orders of the United States of America, the Commonwealth of
Virginia and any other public or quasi-public federal, state or local
authority and/or any department or agency thereof, having jurisdiction over
the Premises and relating Tenant's particular use, or alteration of the
Premises performed by Tenant (ii) any reasonable requests of Mortgagee or
any insurance company providing coverage with respect to the Premises to
the extent the same does not cause expense to Tenant or otherwise
interfere with Tenant's use and occupancy of the Premises and does not
pertain to any structural alteration which is Landlord's responsibility.
Tenant shall not use or occupy the Premises in any manner that is unlawful
or dangerous or that shall constitute waste, unreasonable annoyance or a
nuisance to Landlord or the other tenants of the Building. Landlord shall
comply, at Landlord's sole cost and expense, with all governmental laws,
rules, regulations, and orders of the United States of America, the
Commonwealth of Virginia and any other public or quasi-public Federal,
State or local authority and/or any department or agency thereof having
jurisdiction over the Premises with regard to: (a) requirements prior to
the Commencement Date including, but not limited to, requirements imposed
with respect to Tenant work that is performed by Landlord or Landlord's
Agent (in the event Tenant performs work after obtaining consent from
Landlord then Tenant shall have the sole responsibility to comply with all
governmental laws, rules, regulations and orders); (b) the nature of the
structure of the Premises; (c) the building operating and life safety
systems; (d) the Common Area; and/or (e) Landlord's failure to make any
repairs required of Landlord hereunder. If a fire sprinkler or any
additional exits are ever required, the same shall be installed or
constructed by Landlord at Landlord's sole cost and expense. Landlord
represents that Tenant's stated use does not conflict with Landlord's
insurance and that Tenant shall not be precluded from using the Premises in
accordance with the stated Permitted Use or be liable or obligated to
reimburse Landlord for any increases in Landlord's insurance premium or
rates resulting from Tenant's use of the Premises if Tenant is conducting
its normal business in accordance with the stated Permitted Use for which
the Premises were leased to Tenant.
ARTICLE 11: ASSIGNMENT AND SUBLETTING
11.1 Consent. Tenant shall have the absolute right to assign this Lease or
sublet all or any portion of the Premises without the prior written
consent of Landlord, provided, however that no such assignment or
subletting shall release Tenant or Guarantor of their liability under
the Lease. For an assignment to be effective, any assignee must
deliver within thirty (30) days an agreement by which it assumes all
of the obligations of Tenant hereunder.
ARTICLE 12: MAINTENANCE AND REPAIR
12.1 Landlord's Obligation. Landlord shall keep and maintain in good
---------------------
repair (including replacements as necessary) and working order the
Building, the Common Area and the equipment within and serving the
Premises and the Building (excluding Tenant's leasehold improvements
made by Tenant in the Premises) that are required for the maintenance
and operation of the Premises and the Building. Except as otherwise
-11-
provided in Article 7 or Article 10, the cost of such maintenance and
repairs to the Building and said equipment shall be included in the
Operating Expenses and paid by Landlord. Tenant shall give Landlord
written notice of any defect or need for repairs. After becoming
aware, Landlord shall have a reasonable opportunity to repair or cure
such defect. Landlord's liability with respect to any defects, repairs
or maintenance for which Landlord is responsible under any of the
provisions of this Lease shall be limited to the cost of such repairs
or maintenance or the curing of such defect. In the event of an
emergency requiring immediate action, e.g., danger to health, life or
property, fire, water seepage, sewer back-up, cessation or
interruption of any facility serving the Premises, and the like
(herein called "Emergency") or in the event Landlord fails to make
repairs as set forth herein within a reasonable period of time (i.e.
within five days), Tenant may repair the cause of the emergency or the
damage which Landlord has failed to repair whether the means of
repairing the same are located within the Premises or other portions
of Building, prior to giving any written notice to Landlord (or in the
case of Landlord's failure to repair, after five (5) days' written
notice); provided, however, that Tenant shall notify Landlord within
two (2) business days after expiration of the Emergency. Landlord
shall reimburse Tenant within thirty (30) days after notice for the
cost of said reasonable repairs.
12.2 Tenant's Obligation. Tenant shall, at its own expense, maintain all
-------------------
improvements in the Premises made by Tenant and other real and
personal property within the Premises in good condition, promptly
making all necessary repairs and replacements. Notwithstanding what
is stated above, the Tenant will have no obligation to maintain the
HVAC system, electric service and basic plumbing service to the
Premises. Tenant shall repair at its expense, any and all damage
caused by Tenant, Tenant's invitees while within the Premises or
Tenant's employees, agents, contractors or subcontractors to the
Building, the Common Area, or the Premises, including equipment within
and serving the Building, ordinary wear and tear excepted. Except as
set forth in 12.1 above, Tenant shall bear the cost of, but shall not
itself perform without Landlord's prior consent (which consent shall
not be unreasonably withheld, conditioned or delayed), any such
repairs caused by Tenant as set forth in the previous sentence which
would affect the Building's structure or mechanical or electrical
systems or which would be visible from the exterior of the Building or
from any interior Common Area of the Building. Where Landlord
performs such repairs, Tenant shall promptly pay to Landlord within
thirty (30) days after notice, all costs incurred in connection
therewith plus interest thereon at the Interest Rate from the demand
date until paid. Without prior written notice to Landlord, Tenant
shall not have access to the roof of the Building for any purpose
whatsoever. Tenant's liability with respect to any defects, repairs
or maintenance for which Tenant is responsible under any of the
provisions of this Lease shall be limited to the cost of such repairs
or maintenance or the curing of such defect.
12.3 Landlord's Right to Maintain or Repair. If, within thirty (30) days
--------------------------------------
following notice to Tenant, Tenant fails to commence to repair or
replace any damage to the Premises or Building which is Tenant's
obligation to perform, and diligently pursue timely completion of such
repair and replacement, Landlord may, at its option, cause all
required maintenance, repairs or replacements to be made. Tenant
shall within thirty (30) days after notice, pay Landlord all costs
incurred in connection therewith plus interest thereon at the Interest
Rate from the due date until paid.
12.4 The provisions of this Article are subject to the provisions of
Article 21.
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ARTICLE 13: INITIAL CONSTRUCTION; ALTERATIONS
13.1 Initial Construction. Landlord and Tenant agree that the construction
---------------------
of the Tenant Work and other initial construction with respect to the
Premises shall be performed in accordance with Exhibit F attached
---------
hereto and made a part hereof.
13.2 Alterations. During the Term, Tenant shall not make or permit any
------------
Alterations affecting the structural integrity or the common operating
systems of the Building without the prior written consent of Landlord
which shall not be unreasonably withheld, conditioned or delayed.
Landlord may impose any reasonable conditions to its consent,
including without limitation, (i) delivery to Landlord of written and
unconditional waivers of mechanic's and materialmen's liens as to the
Premises, the Building and the Land for all work, labor and services
to be performed and materials to be furnished, signed by all
contractors, subcontractors, materialmen and laborers participating in
the Alterations providing materials and labor for the Alterations
exceed a value of $500,000.00, (ii) prior approval of the plans and
specifications and Tenant's contractor(s) with respect to the
Alterations, and (iii) supervision by Landlord's representative at
Tenant's expense of the Alterations. The Alterations shall conform to
the requirements of Landlord's and Tenant's insurers and of the
Federal, state and local governments having jurisdiction over the
Premises, shall be performed in accordance with the terms and
provisions of this Lease in a good and workmanlike manner befitting a
first class office building. If the Alterations made pursuant to this
Section 13.2 are not performed as herein required, Landlord shall have
the right, at Landlord's option, to halt any further Alterations, or
to require Tenant to perform the Alterations as herein required or to
require Tenant to return the Premises to its condition before such
Alterations. Subject to Section 13.3 herein, all Alterations and
fixtures, whether temporary or permanent in character, made in or upon
the Premises either by Tenant or Landlord, will immediately become
Landlord's property and, at the end of the Term will remain on the
Premises without compensation to Tenant. Notwithstanding the
foregoing, if any mechanic's or materialmen's lien is filed against
the Premises, the Building or the Land for work claimed to have been
done for, or materials claimed to have been furnished to or for the
benefit of, Tenant, such lien shall be discharged of record by Tenant
within thirty (30) days after notice by Landlord by the payment there
of or the filing of any bond required by law. If Tenant shall fail to
discharge any such lien, Landlord may (but shall not be obligated to)
discharge the same, the cost of which shall be paid by Tenant within
ten (10) days of demand. Neither Landlord's consent to the
Alterations nor anything contained in this Lease shall be deemed to be
the agreement or consent of Landlord to subject Landlord's interest in
the Premises, the Building or the Land to any mechanic's or
materialmen's liens which may be filed in respect of the Alterations.
13.3 Permitted Alterations. Tenant may, at its own expense, without
----------------------
Landlord's consent, but with prior written notice to Landlord, from
time to time during the Term, make nonstructural, non-exterior
alterations costing less than $500,000.00 in and to the interior of
the Premises, as it may find necessary or convenient for its purposes.
Notwithstanding the foregoing, Tenant must obtain Landlord's prior
written consent, which shall not be unreasonably withheld, conditioned
or delayed for any alterations made by a subtenant in connection with
a use other than standard office use (a use different than Tenant's
standard office use). Tenant may retain an interest in any
improvements or Alterations
-13-
made to the Premises for purposes of amortization thereof. Tenant may
erect a satellite dish or comparable roof equipment on the roof of the
Building subject to Landlord's reasonable designation as to the
location thereof and provided Tenant does not void any applicable roof
warranties.
13.4 Landlord Alterations. Landlord shall have no obligation to make any
---------------------
Alterations in or to the Premises, the Building, the Common Area or
the Land except as specifically provided in the Work Agreement or as
required by law. Landlord hereby reserves the right, from time to
time, to make Alterations to the Building, change the Building
dimensions, erect additional stories thereon and attach other
buildings and structures thereto, and to erect such scaffolding and
other aids to construction as Landlord deems appropriate and no such
Alterations, changes, construction or erection shall constitute an
eviction, constructive or otherwise, or permit Tenant any abatement of
Rent or claim subject however to the provisions of Section 3.1.
ARTICLE 14: SIGNS
No sign, advertisement or notice shall be inscribed, painted, affixed,
placed or otherwise displayed by Tenant on any part of the Land or the
outside or the inside (including, without limitation, the windows) of the
Building or the Premises. In addition to the sign referenced in Section
1.3 of the Work Agreement, Tenant may, at Tenant's sole expense, place a
tenant identification sign on an exterior Building monument sign or on the
Building in a location and appearance approved by Landlord which approval
shall not be unreasonably withheld, conditioned or delayed. Such signage
shall be in accordance with all applicable covenants, restrictions,
governmental regulations and Landlord's signage requirements. Tenant shall
have the foregoing right for a period of one (1) year from the Commencement
Date to install said sign. Landlord shall also, at its sole cost and
expense, install suite entry signage and a building directory in the
Building. Any other permitted signs shall be installed and maintained by
Landlord at Tenant's sole expense. If any prohibited sign, advertisement
or notice is nevertheless exhibited by Tenant, Landlord shall have the
right to remove the same after ten (10) days' notice, and Tenant shall pay
any and all expenses incurred by Landlord in such removal, together with
interest thereon at the Interest Rate, upon demand. Landlord shall have
the right to prohibit any sign, on the Building which, in Landlord's
reasonable opinion, tends to impair the reputation of the Building or its
desirability as a first class office building. Tenant shall have the right
to the most conspicuous sign on the Building or on the Building Monument
Sign at Tenant's sole cost and expense.
ARTICLE 15: TENANT'S EQUIPMENT AND PROPERTY
15.1 Moving Tenant's Property. Any and all damage or injury to the
-------------------------
Premises or the Building caused by moving the property of Tenant into
or out of the Premises, or due to the same being on the Premises,
shall be repaired by Tenant. Tenant shall promptly remove from the
Common Area any of Tenant's furniture, equipment or other property
there deposited.
15.2 Installing and Operating Tenant's Equipment. Without first obtaining
--------------------------------------------
the written consent of Landlord which shall not be unreasonably
withheld, conditioned or delayed, Tenant shall not install or operate
in the Premises (i) any electrically operated equipment or other
machinery, other than standard office or kitchen equipment that does
not require wiring, cooling or other service in excess of Building
standards, (ii) any equipment of any kind or
-14-
nature whatsoever which will require any changes, replacements or
additions to, or changes in the use of, any water, heating, plumbing,
air conditioning or electrical system of the Building to the extent
not exclusively serving the Premises, or (iii) any equipment which
causes the floor load to exceed the load limits reasonably set by
Landlord for the Building. Landlord's consent to such installation or
operation may be conditioned upon the payment by Tenant of additional
compensation for any excess consumption of utilities and any
additional power, wiring, cooling or other service (as determined in
the reasonable sole discretion of Landlord) that may result from such
equipment. Machines and equipment which cause noise or vibration that
may be transmitted to and adversely affect the structure of the
Building or to any space therein so as to be reasonably objectionable
to Landlord or any other Building tenant shall be installed and
maintained by Tenant, at its expense, on vibration eliminators or
other devices sufficient to eliminate such noise and vibration.
Notwithstanding what is stated above Tenant may install minor
appliances such as a dishwasher, water cooler or coffee maker,
toaster, refrigerator or other appliances commonly found in large
office spaces.
ARTICLE 16: RIGHT OF ENTRY
Tenant shall permit Landlord or its Agents, at any time and with one
business day's notice (except in cases of emergencies), to enter the
Premises, without charge therefor to Landlord and without diminution of
Rent, (i) to examine, inspect and protect the Premises and the Building,
(ii) to make such Alterations and repairs or perform such maintenance
permitted or required by this Lease (iii) to exhibit the same to
prospective purchasers of the Building or to present or future Mortgagees
or (iv) to exhibit the same to prospective tenants during the last six (6)
months of the Term and to erect outside the Building a reasonable sign
indicating the Premises are available. In the event any such entry
materially interferes with the operation of Tenant's business, all rent
shall xxxxx during such period of material interference.
ARTICLE 17: INSURANCE
17.1 Insurance Rating. Tenant shall not conduct or permit any activity, or
-----------------
place any equipment or material, in or about the Premises, the
Building or the Common Area which will increase the rate of fire or
other insurance on the Building; and if any increase in the rate of
insurance is stated by any insurance company or by the applicable
insurance rating bureau to be due to any activity, equipment or
material of Tenant in or about the Premises, the Building or the
Common Area, such statement shall be conclusive evidence that the
increase in such rate is due to the same and, as a result thereof,
Tenant shall pay any such increase to Landlord upon demand. Landlord
represents that the Tenant's stated intended use and the equipment
used in connection therewith shall not cause an increase of Landlord's
insurance premiums or a violation of Landlord's insurance policies.
17.2 Insurance for Personal Property. Tenant shall, at its sole cost and
--------------------------------
expense, procure and maintain throughout the Term a property insurance
policy (written on an "Special Risk" basis) insuring all of Tenant's
personal property, including but not limited to equipment, furniture,
fixtures, furnishings and leasehold improvements which are the
responsibility of Tenant for not less than the full replacement cost
of said property. Should Tenant elect not to replace or repair
Tenant's property with insurance proceeds, then Tenant waives all
claims that it may have against Landlord to recover damages or repair
or replacement of Tenant's property.
-15-
17.3 Requirements of Insurance Coverage. All such insurance required to be
-----------------------------------
carried by Tenant herein shall be with an insurance company licensed
to do business in the Commonwealth of Virginia and complies with the
requirements herein. Such insurance (i) shall contain an endorsement
that such policy shall remain in full force and effect notwithstanding
that the insured has released its right of action against any party
before the occurrence of a loss; (ii) shall name Landlord, Tenant and,
at Landlord's request, any Mortgagee or ground lessor, as an
additional named insured parties; and (iii) shall provide that the
policy shall not be canceled, failed to be renewed or materially
amended without at least thirty (30) days' prior written notice
(fifteen (15) days if due to non-payment of premium) to Landlord and,
at Landlord's request, any Mortgagee. Upon request or before the
Commencement Date and, thereafter, before the expiration date of the
insurance policy, an original of the policy (including any renewal or
replacement policy) or a certified copy thereof, together with
evidence reasonably satisfactory to Landlord of the payment of all
premiums for such policy, shall be delivered to Landlord and, at
Landlord's request, to any Mortgagee. Tenant shall at all times
during the Lease Term keep in force a policy or policies of public
liability insurance or an endorsement on a blanket liability insurance
policy or policies, which policy, policies or endorsement shall
provide that Landlord is named as additional insured, against any and
all damages and liability on account of, or arising out of injuries to
persons or property or the death of any person or for property damage
resulting from acts or omissions of Tenant, its agents, contractors or
employees, or occurring in the Premises, in the amount of Five Million
Dollars ($5,000,000) combined single limit in any one accident. All
insurance policies herein to be procured by Tenant shall be issued by
insurance companies having a Best's Rating of A-X and authorized to
do business in the State. Neither issuance of any insurance policy
required hereunder, nor the minimum limits specified herein with
respect to Tenant's insurance coverage, shall be deemed to limit or
restrict in any way Tenant's liability arising under or out of this
Lease. Upon request, Tenant shall deliver to Landlord a duplicate
original or certified copy of each such policy or a certificate of the
insurer, certifying that such policy has been issued, providing the
coverage required by this Section and containing provisions specified
herein, together with evidence of payment of all applicable premiums.
Any insurance required to be carried hereunder may be carried under a
blanket policy covering the Premises and other locations of Tenant.
The term "insurance policy" as used herein shall be deemed to include
any extensions or renewals of such insurance policy. Tenant shall
commence to adjust any loss within 30 days of any casualty and shall
diligently pursue such adjustment.
17.4 Waiver of Subrogation. Tenant and Landlord hereby waive and release
----------------------
any and all right of recovery against the other, including agents,
contractors and employees, arising during the Term for any and all
loss or damage to any property (including Tenant's fixtures,
furnishings, equipment, merchandise and other personal property)
located within or constituting a part of the Building, which loss or
damage arises from the perils coverable by an All Risk Policy (Special
Form) or which right of recovery arises from loss of earnings or rents
resulting from damage caused by such a peril. This mutual waiver is
in addition to any other waiver or release contained in this Lease.
Landlord and Tenant shall each have their insurance policies issued in
such form as to waive any right of subrogation which might otherwise
exist. In addition, neither party waives claims against the other for
losses sustained which are the result of a party's intentional
misconduct.
-16-
17.5 Security. In the event that Landlord engages the services of a
---------
professional security system for the Building, it is understood that
such engagement shall in no way increase Landlord's liability for
occurrences and/or consequences which such a system is designed to
detect or avert and that Tenant shall look solely to its insurer as
set out above for claims or damages or injury to any person or
property.
17.6 Landlord's Insurance. Landlord shall maintain at all times during the
---------------------
Term an All Risk Policy (Special Form) insuring against damage to any
portion of the Building, improvements and the Land. Upon completion
of construction of the Building, such insurance shall be obtained
specifying an owner's rating for the Building which contemplates a
status of the Building as an existing, operating entity and not as a
property under development. Such insurance shall be in the amount of
the full replacement cost, including demolition cost but excluding
foundations. Landlord shall at all times during the Lease Term keep
in force a policy or policies of public liability insurance or an
endorsement on a blanket liability insurance policy or policies, which
policy, policies or endorsement shall provide that Tenant is named as
additional insured, against any and all damages and liability on
account of, or arising out of injuries to persons or property or the
death of any person or for property damage resulting from acts or
omissions of Landlord, its agents, contractors or employees, or
occurring on or about the Common Areas, in the amount of Five Million
Dollars ($5,000,000) combined single limit in any one accident. Said
policy or policies shall be obtained at a premium which shall not
exceed the average premium for an owner's rate for the same class of
property in the state where the Building is located and shall include
contractual liability insurance recognizing the liability assumed in
the indemnification provision of the Lease, contain a cross-liability
endorsement, and be with an insurer which is rated at least A and X in
Best's Insurance Reports or equivalent. All insurance policies herein
to be procured by Landlord shall be issued by insurance companies
have a Best's Rating of A-X and authorized to do business in the
State. Neither issuance of any insurance policy required hereunder,
nor the minimum limits specified herein with respect to Landlord's
insurance coverage, shall be deemed to limit or restrict in any way
Landlord's liability arising under or out of this Lease. Upon
request, Landlord shall deliver to Tenant a duplicate original or
certified copy of each such policy or a certificate of the insurer,
certifying that such policy has been issued, providing the coverage
required by this Section and containing provisions specified herein,
together with evidence of payment of all applicable premiums. Any
insurance required to be carried hereunder may be carried under a
blanket policy covering the Building and other locations of Landlord.
The term "insurance policy" as used herein shall be deemed to include
any extensions or renewals of such insurance policy. Landlord shall
commence to adjust any loss within 30 days of any casualty and shall
diligently pursue such adjustment.
ARTICLE 18: LANDLORD SERVICES AND UTILITIES
18.1 Ordinary Services to the Premises. Landlord shall furnish to the
---------------------------------
Premises throughout the Term (i) electricity, heating and air
conditioning appropriate for the Permitted Use during the Business
Hours, (ii) reasonable janitorial service, (iii) regular trash removal
from Premises, (iv) hot and cold water from points of supply, (v)
subject to Article 10, restrooms as are required by applicable code,
and (iv) elevator service, if there is an elevator in the Building,
provided that Landlord shall have the right to temporarily remove such
elevators from service as may be required for moving, freight or for
-17-
servicing the elevators or the Building so long as there is at least
one elevator operating at all times (excluding instances where there
are brief periods for service or repair). Landlord agrees to furnish
landscaping and grounds maintenance and snow clearing for the areas
used in common by the tenants of the Building. Landlord shall be
under no responsibility or liability for failure or interruption in
such services caused by breakage, accident, strikes, repairs or any
other cause or causes beyond the control of Landlord, nor in any event
for any indirect or consequential damages; and failure or omission on
the part of Landlord to furnish such service shall not be construed as
an eviction of Tenant, nor work an abatement of Rent, nor render
Landlord liable in damages, nor release Tenant from prompt fulfillment
of any of the covenants of this Lease.
18.2 Interruption of Services. Notwithstanding anything in this Lease to
-------------------------
the contrary, if any of the services listed above are interrupted or
suspended for a period of time and to the extent that the Tenant is
substantially unable to function in the Premises, then Tenant's Rent
shall xxxxx during the time and to the extent the Tenant is
substantially unable to function in said Premises. If any such
interference continues for one hundred twenty (120) consecutive days,
Tenant may terminate this Lease.
ARTICLE 19: LIABILITY OF LANDLORD
19.1 Except to the extent expressly prohibited by law, Tenant and Landlord
hereby waive any claim each may have against the other or its agents,
contractors or employees for any consequential damages sustained
arising out of the loss or damage to any person or property of Tenant
or Landlord, as the case may be.
19.2 Indemnity. Tenant shall indemnify and hold Landlord and its agents,
----------
contractors or employees harmless from and against any and all damage,
claim, liability, cost or expense (including, without limitation,
reasonable attorneys' or other reasonable professionals' fees of every
kind and nature (including, without limitation, those arising from any
injury or damage to any person, property or business) incurred by or
claimed against Landlord or its agents, contractors or employees,
directly or indirectly, as a result of, arising from or in connection
with Tenant's or its contractor's, employee's, or agent's use and
occupancy of the Premises or the negligence or wilful misconduct of
Tenant, its contractors, employees and agents. Landlord shall
indemnify and hold Tenant and its agents, contractors or employees
harmless from and against any and all damage, claim, liability, cost
or expense (including, without limitation, reasonable attorneys' or
other reasonable professionals' fees of every kind and nature
(including, without limitation, those arising from any injury or
damage to any person, property or business) incurred by or claimed
against Tenant or its agents, contractors or employees, directly or
indirectly, as a result of, arising from or in connection with
Landlord's or its contractors, employees, or agent's use, ownership
and occupancy of the Premises, the Building or the Common Area or the
negligence or wilful misconduct of Landlord or its contractors,
employees or agents.
ARTICLE 20: RULES AND REGULATIONS
Tenant shall at all times abide by and observe the Rules and Regulations
(as attached hereto as Exhibit B) for the operation and maintenance of the
Building and the Common Area and the Rules and Regulations shall be deemed
to be covenants of the Lease to be performed and/or
-18-
observed by Tenant. Landlord shall not be liable to Tenant for any
violation by any party of the Rules and Regulations or the terms of any
other Building Lease. If there is any inconsistency between this Lease and
the Rules and Regulations, this Lease shall govern. The Rules and
Regulations must be reasonable and uniformly enforced against other tenants
by Landlord.
ARTICLE 21: DAMAGE; CONDEMNATION
21.1 Damage to the Premises. If the Premises shall be damaged by fire or
-----------------------
other cause Landlord shall diligently and as soon as practicable after
such damage occurs (taking into account the time necessary to effect a
satisfactory settlement with any insurance company involved) which
Landlord shall make all reasonable efforts to cause the insurance
company to adjust the claim within thirty (30) days of the casualty)
repair such damage at the expense of Landlord. Notwithstanding the
foregoing, if the Premises or the Building are damaged during the last
two (2) Lease Years, then Landlord or Tenant within thirty (30) days
from the date of such damage, may terminate this Lease by notice to
the other (under no circumstances shall Tenant be entitled to elect to
terminate the Lease if the loss or damage is caused by the Tenant's
negligence) provided, however that Tenant may negate Landlord's
termination by exercising Tenant's option to extend within thirty (30)
days after receipt of Landlord's termination notice. If either
Landlord or Tenant terminates this Lease, the Rent shall be
apportioned and paid to the date of such termination. If neither
Landlord nor Tenant so elects to terminate this Lease but the damage
required to be repaired by Landlord is not repaired within one hundred
fifty (150) days from the date of such damage (such one hundred fifty
(150) day period to be extended by the period of any delay outside the
direct control of Landlord plus a reasonable period for a satisfactory
settlement with any insurance company involved) not to exceed thirty
(30) days), Tenant, within thirty (30) days from the expiration of
such one hundred fifty (150) day period (as the same may be extended),
may terminate this Lease by notice to Landlord. Within thirty (30)
days after any such damage, Landlord shall deliver to Tenant a
statement from Landlord's insurance adjuster or architect stating its
good faith estimate as to the time necessary to completely repair such
damage. In the event such estimate exceeds one hundred twenty (120)
days, Tenant may terminate the Lease. During the period that Tenant
is deprived of the use of the damage Portion of the Premises, Fixed
Rent and Tenant's proportionate share of Operating Expenses and Taxes
shall be reduced by the ratio that the rentable square footage of the
Premises damaged bears to the total rentable square footage of the
Premises before such damage. Notwithstanding anything herein to the
contrary, Landlord shall not be required to rebuild, replace or repair
personal property of Tenant.
21.2 Condemnation. If the whole or a Substantial Part of the Premises or
-------------
the Building shall be taken or condemned by any governmental or quasi-
governmental authority for any pubic or quasi-public use or purpose
(including, without limitation, sale under threat of such a taking),
then the Term shall cease and terminate as of the date when title vest
in such governmental or quasi-governmental authority, and Rent shall
be prorated to the date when title vests in such governmental or
quasi-governmental authority. If less than a Substantial Part of the
Premises is taken or condemned by any governmental or quasi-
governmental authority for any public or quasi-public use or purpose
(including, without limitation, sale under threat of such a taking),
Tenant may elect to terminate the Lease within thirty (30) days after
such taking. If this Lease is not terminated, Fixed Rent and Tenant's
proportionate share of Operating Expenses and Taxes shall be reduced
by the
-19-
ratio that the portion so taken bears to the rentable square footage
of the Premises before such taking, effective as of the date when
title vests in such governmental or quasi-governmental authority, and
this Lease shall otherwise continue in full force and effect. Tenant
shall have no claim against Landlord (or otherwise) as a result of
such taking, and Tenant hereby agrees to make no claim against the
condemning authority for any portion of the amount that may be awarded
as compensation or damages as a result of such taking; provided,
however, that Tenant may, to the extent allowed by law, claim an award
for moving expenses, loss of any business and for the taking of any of
Tenant's property which does not, under the terms of this Lease,
become the property of Landlord at the termination hereof, as long as
such claim is separate and distinct from any claim of Landlord and
does not diminished Landlord's award.
ARTICLE 22: DEFAULT
22.1 Events of Default. Each of the following shall constitute an Event of
------------------
Default: (i) Tenant fails to pay Rent within ten (10) days after
notice from Landlord; (ii) Tenant fails to observe or perform any
other term, condition or covenant herein binding upon or obligating
Tenant within thirty (30) days after notice from Landlord or an
additional period of time not to exceed sixty (60) days so long as
Tenant is diligently pursuing a cure, (iii) Tenant or any Guarantor
makes or consents to a general assignment for the benefit of creditors
or a common law composition of creditors, or a receiver of the
Premises or all or substantially all of Tenant's or Guarantor's assets
is appointed, or (iv) Tenant or Guarantor files a voluntary petition
in any bankruptcy or insolvency proceeding, or an involuntary petition
in any bankruptcy or insolvency proceeding is field against Tenant or
Guarantor and is not discharged by Tenant or Guarantor within ninety
(90) days.
22.2 Landlord's Remedies. Upon the occurrence of an Event of Default,
--------------------
Landlord, at its option, without further notice or demand to Tenant,
may in addition to all other rights and remedies provided in this
Lease, at Law or in equity (except for acceleration of damages or
rent):
(i) By judicial process, terminate this Lease and Tenant's right of
possession of the Premises, and recover all damages to which
Landlord is entitled under law, specifically including but
without limitation, all of Landlord's expenses of returning the
Premises into the condition in which it was required to be
surrendered. If Landlord elects to terminate this Lease,
provided Landlord has obtained a judgment terminating the Lease,
every obligation of the parties shall cease as of the date of
such termination, except that Tenant shall remain liable for
payment of Rent and performance of all other terms and
conditions of this Lease to the date of termination.
(ii) By judicial process, terminate Tenant's right of possession of
the Premises without terminating this Lease, in which event
Landlord may, but shall not be obligated to, relet the Premises,
or any part thereof, for the account of Tenant, for such rent
and term and upon such other conditions as are acceptable to
Landlord. For purposes of such reletting, Landlord is authorized
to redecorate, repair, alter and improve the Premises to the
extent necessary in Landlord's sole discretion. Until Landlord
relets the Premises, Tenant shall remain obligated tO pay Rent
to
-20-
Landlord as provided in this Lease. If and when the Premises
are relet and if a sufficient sum is not realized from such
reletting to satisfy the payment of Rent due under this Lease
for any month, Tenant shall pay Landlord any such deficiency
upon demand. Tenant agrees that Landlord may file suit to
recover any sums due Landlord under this Section from time to
time and that such suit or recovery of any amount due Landlord
shall not be any defense to any subsequent action brought for
any amount not previously reduced to judgment in favor of
Landlord.
(iii) Intentionally Deleted.
(iv) By judicial process, re-enter and repossess the Premises and
remove all persons and effects therefrom, to summary proceeding,
ejectment or other legal action.
(v) Recover from Tenant, to the extent permitted under the laws of
the Commonwealth of Virginia, the value and/or cost of all
concessions to Tenant under this Lease.
22.3 Rights Upon Possession. If Landlord takes possession pursuant to this
-----------------------
Article, with or without terminating this Lease, Landlord may, at its
option, enter into the Premises, remove Tenant's Alterations, signs,
personal property, equipment and other evidences of tenancy, and store
them at Tenant's risk and expense or dispose of them as Landlord may
see fit, and take and hold possession of the Premises; provided,
however, that if Landlord elects to take possession only without
terminating this Lease, such entry and possession shall not terminate
this Lease or release Tenant or any Guarantor, in whole or in part,
from the obligation to pay the Rent reserved hereunder for the full
Term or from any other obligation under this Lease or any guaranty
thereof.
22.4 No Waiver. If Landlord or Tenant shall institute proceedings against
----------
the other and a compromise or settlement thereof shall be made, the
same shall not constitute a waiver or any other covenant, condition or
agreement herein contained, nor of any of Landlord's or Tenant's
rights hereunder. No waiver by Landlord or Tenant of any breach shall
operate as a waiver of such covenant, condition or agreement, or
operate as a waiver of such covenant, condition or agreement itself,
or of any subsequent breach thereof. No payment of Rent by Tenant or
acceptance of Rent by Landlord shall operate as a waiver of any breach
or default by Tenant under this Lease. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly installment of
Rent herein stipulated shall be deemed to be other than a payment on
account of the earliest unpaid Rent, nor shall any endorsement or
statement on any check or communication accompanying a check for any
payment by either party be deemed an accord and satisfaction, and
Landlord or Tenant may accept such check or payment without prejudice
to its right to recover the balance of such amount due or to pursue
any other remedy provided in this Lease. No re-entry by Landlord, and
no acceptance by Landlord of keys from Tenant, shall be considered an
acceptance of a surrender of the Lease.
22.5 Right of Landlord to Cure Tenant's Default. If an Event of Default
-------------------------------------------
shall occur, then Landlord may (but shall not be obligated to) make
such payment or do such act to cure the Event of Default, and charge
the amount of the expense thereof, together with interest thereon at
the Interest Rate, to Tenant. Such payment shall be due and payable
upon
-21-
demand. Any such payment made by Landlord on Tenant's behalf shall
bear interest until paid at the Interest Rate.
22.6 Late Payment. If Tenant fails to pay any Rent within ten (10) days
-------------
after notice that such Rent was due and payable, Tenant shall pay to
Landlord a late charge of five percent (5%) of the amount of such
overdue Rent.
22.7 Landlord's Default. If Landlord shall fail to perform any of its
obligations when and as due under this Lease (a "breach" or
"default"), which default continues for a period of more than thirty
(30) days after written notice from Tenant specifying such default (or
as to any default which requires more than thirty (30) days to remedy,
if such cure is not commenced promptly and pursued diligently or
continues beyond the time reasonably necessary therefor) Tenant may
at its option upon written notice (1) if the default has a material
and adverse effect upon Tenant's ability to operate its usual and
regular business in the Premises, and Tenant has no other adequate
remedy under this Lease or at law, declare the Term ended and vacate
the Premises, and be relieved from all further obligations under this
Lease (provided, however, prior to termination, Tenant shall send to
Landlord an additional notice to Landlord, following the initial
default notice, advising Landlord of Tenant's intention to terminate
this Lease if the default is not cured within ten (10) days after such
notice); and/or (2) incur any reasonable expense necessary to perform
the obligation of Landlord specified in such notice; and/or (3) xxx
for injunctive relief; and/or (4) xxx for specific performance; and/or
(5) except as otherwise set forth in this Lease, set off any amount
expended by Tenant as a result of such default, together with interest
at the Interest Rate, against the next payments of Rent coming due
under this Lease until recovered in full; and/or (6) avail itself of
any other remedy provided herein or available at law or in equity
(except for acceleration of damages).
22.8 Mitigation. Notwithstanding any of the terms and provisions herein
-----------
contained to the contrary, Landlord and Tenant shall each have the
duty and obligation to use reasonable good faith efforts to mitigate
any and all damages that may or shall be caused or suffered by virtue
of the other's defaults under, or violation of, any of the terms and
provisions of this Lease.
ARTICLE 23: MORTGAGES
23.1 Subordination. This Lease is subject and subordinate to all ground
--------------
or underlying leases and to any first Mortgage(s) which may now or
hereafter affect such leases or the Land and to all renewals,
modifications, consolidations, replacements and extensions thereof.
This subordination shall be self-operative; however, in confirmation
thereof, Tenant shall execute any instrument that Landlord or any
first Mortgagee may reasonably request confirming such subordination
within thirty (30) days after request therefor. Notwithstanding the
foregoing, before any foreclosure sale under a Mortgage, the Mortgagee
shall have the right to subordinate the Mortgage to this Lease, and,
in the event of a foreclosure, this Lease may continue in full force
and effect and Tenant shall attorn to and recognize as its landlord
the purchaser of Landlord's interest under this Lease. Tenant shall,
upon the request of a Mortgagee or purchaser at foreclosure, execute,
acknowledge and deliver any instrument that has for its purpose and
effect the subordination of the lien of any Mortgage to this Lease or
Tenant's attornment to such Purchaser. Landlord shall by the
Commencement Date or thirty (30) days after the
-22-
request by Tenant, and prior to a refinancing of the Building, deliver
to Tenant a non-disturbance agreement reasonably satisfactory to
Tenant from any Mortgagee or ground lessor substantially similar to
the Agreement attached here to as Exhibit H.
23.2 Mortgagee Protection. Tenant agrees to give any Mortgagee by
---------------------
certified mail, return receipt requested, a copy of any notice of
default served upon Landlord, provided that before such notice Tenant
has been notified in writing of the address of such Mortgagee. Tenant
further agrees to accept any cure from said Mortgagee within the cure
periods provided herein.
23.3 Subordination, Nondisturbance Agreement. If the Premises are
----------------------------------------
encumbered by a mortgage, deed of trust, or ground lease as of the
date this Lease is executed and delivered by the parties hereto, and a
fully executed Non-Disturbance, Subordination and Attornment Agreement
is not delivered to Tenant concurrently with Landlord's delivery of
the Premises to Tenant, Tenant may, in its sole discretion, (i)
terminate this Lease by written notice given to Landlord at any time
prior to the date a fully executed Non-Disturbance, Subordination and
Attornment Agreement is delivered to Tenant, or (ii) xxxxx Fixed Rent
from the Commencement Date through the date that a fully executed
Non-Disturbance, Subordination and Attornment Agreement is delivered
to Tenant.
ARTICLE 24: SURRENDER; HOLDING OVER
24.1 Surrender of the Premises. Tenant shall surrender the Premises to
--------------------------
Landlord on the Expiration Date or earlier termination of this Lease,
in broom-clean condition, including, without limitation, the repair of
any damage to the Premises caused by the removal of any of Tenant's
personal property or trade fixtures from the Premises, except for
reasonable wear and tear and loss by fire or other casualty. After
five (5) days notice to Tenant, any of Tenant's personal property left
on or in the Premises, the Building or the Common Area after the
Expiration Date or earlier termination of this Lease shall be deemed
to be abandoned, and, at Landlord's option, title shall pass to
Landlord under this Lease.
24.2 Holding Over. In the event that Tenant shall not immediately
-------------
surrender the Premises to Landlord on the Expiration Date or earlier
termination of this Lease, Tenant shall be deemed to be a month to
month tenant upon all of the terms and provisions of this Lease,
except the monthly Fixed Rent shall be one hundred fifty percent
(150%) the monthly Fixed Rent in effect during the last month of the
Term.
ARTICLE 25: QUIET ENJOYMENT
Landlord covenants that if Tenant shall pay Rent and perform all of the
terms and conditions of this Lease to be performed by Tenant subject to
applicable cure periods, Tenant shall during the Term peaceably and quietly
occupy and enjoy possession of the Premises without molestation or
hindrance by Landlord or any party claiming through or under Landlord,
subject to the provisions of this Lease and any Mortgage to which this
Lease is subordinate and easements, conditions and restrictions of record
affecting the Land.
ARTICLE 26: TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS
26.1 Definition. As used in this Lease, the term "Hazardous Material" means
----------
any flammable
-23-
items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any
substances defined as or included in the definition of "hazardous
substances", "hazardous wastes", "infectious wastes", "hazardous
materials" or "toxic substances" now or subsequently regulated under
any federal, state or local laws, regulations or ordinances including,
without limitation, oil, petroleum-based products, paints, solvents,
lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCBs and similar
compounds, and including any different products and materials which
are subsequently found to have adverse effects on the environment or
the health and safety of persons.
26.2 General Prohibition. Tenant shall not cause or permit any Hazardous
--------------------
Material to be generated, produced, brought upon, used, stored,
treated, discharged, released, spilled or disposed of on, in, under or
about the Premises, the Building or the Land by Tenant or its agents,
contractors and employees, sublessees or assignees in violation of any
local, state or federal law. Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all actions (including,
without limitation, remedial or enforcement actions of any kind,
administrative or judicial proceedings, and orders or judgments
arising out of or resulting therefrom), costs, claims, damages
(including, without limitation, punitive damages), expenses
(including, without limitation, attorneys', consultants' and experts'
fees, costs, court costs and amounts paid in settlement of any claims
or actions), fines, forfeitures, or other civil, administrative or
criminal penalties, injunctive or other relief (whether or not based
upon personal injury, property damage, or contamination of, or adverse
effects upon, the environment, water tables or natural resources),
liabilities or losses arising from a breach of this prohibition by
Tenant, its contractors, employees and agents, or sublessees or
assignees. Notwithstanding the foregoing, Landlord acknowledges that
Tenant may use and store limited quantities of Hazardous Material in
connection with the operation of its Permitted Use so long as the same
are used and stored in compliance with laws.
26.3 Notice. In the event that Hazardous Materials are discovered upon, or
-------
under the Premises, the Building or the Land, provided the same were
brought on to the Premises, Building or Land by Tenant, and the
governmental agency or entity having jurisdiction over the Premises,
the Building or the Land requires the removal of such Hazardous
Materials, Tenant shall be responsible for removing those Hazardous
Materials arising out of or related to the use or occupancy of the
Premises by Tenant or its contractors, employees or agents,
affiliates, sublessees or assignees but not those of its predecessors.
Notwithstanding the foregoing, Tenant shall not take any remedial
action in or about the Premises, the Building or the Land, without
first notifying Landlord or Tenant's intention to do so and affording
Landlord a reasonable opportunity to protect Landlord's interest with
respect thereto. Tenant immediately shall notify Landlord in writing
of: (i) any spill, release, discharge or disposal of any Hazardous
Material in, on or under the Premises, the Building, the Land or any
portion thereof made by Tenant, (ii) any enforcement, cleanup, removal
or other governmental or regulatory action instituted, contemplated,
or threatened (if Tenant has notice thereof) pursuant to any Hazardous
Materials Laws; (iii) any claim made or threatened by any person
against Tenant, relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from or claimed to result from
any Hazardous Materials; and (iv) any reports made by Tenant to any
governmental agency or entity arising out of or in connection with any
Hazardous Materials in, on, under or about or removed from the
Premises, the Building or the Land,
-24-
including any complaints, notices, warnings, reports or asserted
violations in connection therewith. Tenant also shall supply to
Landlord as promptly as possible, and in any event withing five (5)
business days after Tenant first receives or sends the same, copies
of all claims, reports, complaints, notices, warnings or asserted
violations relating in any way to the Premises, the Building, the
Land or Tenant's use or occupancy thereof.
26.4 Survival. The respective rights and obligations of Landlord and
---------
Tenant under this Article 26 shall survive the expiration or
earlier termination of this Lease.
26.5 Landlord's Obligations, Representations and Warranties. Landlord
-------------------------------------------------------
warrants that the Building, Land and Premises are free of any
asbestos or any other Hazardous Material. In the event there is
discovered to be Hazardous Material in the Building, Land and/or
Premises which has not been placed or introduced there by Tenant,
its employees, agents or contractors, then Landlord shall, at its
sole cost and expense bear the cost and expense of any
investigation, testing, digging, removal or clean up required and
any fines or penalties assessed as a result of the presence of
Hazardous Material within, on or under the Land or the Building.
Also under such circumstance, Landlord shall indemnify, defend and
hold Tenant harmless from any claims, demands, suits, actions,
awards, fines, clean up costs, expenses, attorney fees, etc., which
may arise as a result of such presence, which indemnity shall
survive the expiration or earlier termination of this Lease. If as
a result of the presence of Hazardous Material, the Premises is
substantially untenantable, Tenant shall have the right to either
(i) xxxxx Rent and all other charges payable under this Lease based
upon the duration and extent of the interruption to Tenant's
business or (ii) terminate this Lease upon sixty (60) days written
notice to Landlord should the contamination be to the extent that
it is not cured within ninety (90) days and the Premises is
untenantable.
ARTICLE 27: MISCELLANEOUS
27.1 No Representations by Landlord. Tenant acknowledges that neither
-------------------------------
Landlord or its agents nor any broker has made any representation
or promise with respect to the Premises, the Building, the Land or
the Common Area, except as herein expressly set forth, and no
rights, privileges, easements or licenses are acquired by Tenant
except as herein expressly set forth. Landlord shall deliver
possession of the Premises to Tenant with all of Landlord's
improvements and Tenant Work completed as required by the terms of
the Lease and as an integral, enclosed, and secure space with all
the roof and demising walls properly in place, weather tight and
free and clear of asbestos and Hazardous Materials, and with all
service lines and meters in place, ready for occupancy. All of
Landlord's improvements and Tenant Work shall be done in a good and
workmanlike manner and in conformity with the local, state and
national codes having jurisdiction. In addition to the foregoing,
Landlord agrees to include a provision in every tenant's lease or
agreement for occupancy in the Building prohibiting such tenant or
occupant from allowing its employees, agents, contractors or
invitees from smoking in the Building.
27.2 No Partnership. Nothing contained in this Lease shall be deemed or
---------------
construed to create a partnership or joint venture of or between
Landlord and Tenant, or to create any other relationship between
Landlord and Tenant other than that of landlord and tenant.
27.3 Broker. Landlord and Tenant represent and warrant each to the
-------
other that each has not
-25-
dealt with any real estate agent or broker in connection with this
transaction and agree to indemnify and save each other harmless
from and against all loss, cost and expense incurred by reason of
the breach of such representation and warranty.
27.4 Estoppel. At any time and from time to time upon not less than ten
---------
(10) days' prior notice by Landlord or Tenant, the other party
shall deliver a statement in writing addressed to the requesting
party certifying if true (i) 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
modifications), (ii) whether the Term has commenced and the date
Rent shall have become payable hereunder, and if so, the dates to
which it has been paid, (iii) whether or not, to such party's
knowledge, the requesting party is in default in performance of any
of the terms of this Lease, and if so, specifying such default of
which it may have knowledge, (iv) whether Tenant has accepted
possession of the Premises, (v) whether either party has made any
claim against the other under this Lease, and if so, the nature
thereof, (vi) whether there exist any offset or defenses against
enforcement of any of the terms of this Lease upon the part of
Tenant to be performed, and if so, specifying the same; and (vii)
such other matters as either party may reasonably request of the
other.
27.5 Intentionally Deleted.
---------------------
27.6 Notices. All notices or other communications hereunder shall be in
--------
writing and shall be deemed duly given if delivered in person or
under the earlier of receipt, if mailed by certified or registered
mail, or three (3) days after certified or registered mailing,
return receipt requested, postage prepaid, addressed and sent to
the respective parties and addresses listed in Sections 1.17, 1.18
and 1.19 herein. Landlord and Tenant may from time to time by
written notice to the other designate another address for receipt
of future notices.
27.7 Invalidity of Particular Provisions. If any provisions of this
------------------------------------
Lease or the application thereof to any person or circumstances
shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such provision to persons or
circumstances other than those to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the full extent
permitted by law.
27.8 Gender and Number. Any terms and words used in this Lease,
-----------------
regardless of the number or gender in which they are used, shall be
deemed to include any other number or gender as the context may
require.
27.9 Benefit and Burden. Subject to the provisions of Article 11 and
-------------------
except as otherwise expressly provided, the provisions of this
Lease shall be binding upon, and shall inure to the benefit of, the
parties hereto and each of their respective representatives, heirs,
successors and assigns. Landlord may freely and fully assign its
interest hereunder provided the successor is bound hereby.
27.10 Entire Agreement. This Lease (which includes the Exhibits and
----------------
Rider attached hereto) contains and embodies the entire agreement
of the parties hereto, and no representations, inducements or
agreements, oral or otherwise, between the parties not contained in
this
-26-
Lease shall be of any force or effect. This Lease may not be
modified, changed or terminated in whole or in part in any manner
other than by an agreement in writing duly signed by Landlord and
Tenant.
27.11 Authority.
----------
(i) If Tenant signs as a corporation, Tenant hereby represents and
warrants that Tenant is a duly formed and validly existing
corporation, in good standing, qualified to do business in the
Commonwealth of Virginia, that the corporation has full power and
authority to enter into this Lease and that the person executing
the Lease is authorized to execute this Lease on behalf of the
corporation. Landlord executes this Lease as a Virginia limited
liability company and represents and warrants that it is duly
formed, validly existing and in good standing and qualified to do
business in the Commonwealth of Virginia, that the limited
liability company has full power and authority to enter into this
Lease and that the person signing on behalf of the limited
liability company has the authority to execute the lease on behalf
of the limited liability company.
27.12 Attorneys' Fees. If, as a result of default of Landlord or Tenant
----------------
in its performance of any of the provisions of this Lease, the
other party uses the services of an attorney in order to secure
compliance with such provisions or recover damages therefor, or to
terminate this Lease or evict Tenant, the non-prevailing party
shall reimburse the prevailing party upon demand for any and all
reasonable attorneys' fees, costs and expenses so incurred by the
prevailing party.
27.13 Interpretation, Venue. This Lease is governed by the laws of the
----------------------
Commonwealth of Virginia except venue and jurisdiction are proper
in the Circuit Court for Xxxxxxxxx County, Virginia.
27.14 No Personal Liability; Sale. Neither Landlord, Tenant nor their
----------------------------
respective agents, contractors or employees, whether disclosed or
undisclosed, shall have any personal liability under any provision
of this Lease. In the event of a judgment in favor of Tenant which
remains unpaid, Tenant's right of redress, execution and levy shall
be limited to the interest of Landlord in the Building as described
in Article 1 hereof. In the event that the original Landlord
hereunder, or any successor owner of the Building, shall sell or
convey the Building, all liabilities and obligations on the part of
the original Landlord, or such successor owner, under this Lease
occurring thereafter shall terminate as of the day of such sale,
and thereupon all such liabilities and obligations shall be binding
on the new owner. Tenant agrees to attorn to such new owner.
Notwithstanding the foregoing, if Landlord shall fail to perform
any covenant, term or condition of this Lease upon Landlord's part
to be performed and should Tenant, as a consequence of such
default, recover a money judgment against Landlord, such judgment
may be satisfied out of (i) the proceeds of sale produced upon
execution of such judgment and levy thereon against Landlord's
interest in the entire Building and improvements thereon, (ii) the
rents, other income, or insurance proceeds from such property
receivable by Landlord and (iii) the consideration received by
Landlord from the sale of all or any part of Landlord's interest in
the entire Building. The provisions of this article are not
designed to relieve Landlord from the performance of any of its
obligations hereunder, but rather to limit Landlord's liability in
the case of the recovery of a judgment against it, as aforesaid,
nor shall any of the provisions of this Article be deemed to limit
or otherwise affect Tenant's right to
-27-
obtain injunctive relief or specific performance or avail itself of
any other right or remedy which may be accorded Tenant by law or
this Lease. Notwithstanding anything to the contrary in this Lease,
Landlord may not transfer its interest in the Building prior to the
Commencement Date.
27.15 Time of the Essence. Time is of the essence as to obligations
--------------------
contained in this Lease.
27.16 Force Majeure. Neither Landlord nor Tenant shall be required to
-------------
perform any of its obligations under this Lease, nor shall such
party be liable for loss or damage for failure to do so, nor shall
the other party thereby be released from any of its obligations
under this Lease, where such failure by the non-performing party
arises from or through acts of God, strikes, lockouts, labor
difficulties, explosions, sabotage, accidents, riots, civil
commotions, acts of war, results of any warfare or warlike
conditions in this or any foreign country, fire or casualty, legal
requirements, energy shortage or other causes beyond the reasonable
control of the non-performing party, unless such acts are caused or
are contributed to by the actions or inactions of the party
asserting this clause or such loss or damage results from the
willful misconduct or gross negligence of the non-prevailing party.
27.17 Headings. Captions and headings are for convenience of reference
---------
only.
27.18 Memorandum of Lease. Tenant shall, at the request of Landlord,
-------------------
execute and deliver a memorandum of Lease in recordable form. Tenant
shall not record such a memorandum or this Lease without Landlord's
consent. In the event Tenant requests recordation of a memorandum of
this Lease, Tenant shall be obligated to pay all costs, fees and
taxes , if any, associated with such recordation. In the event
Landlord elects to record a memorandum of this Lease, Landlord shall
be obligated to pay all costs, fees and taxes, if any, associated
with such recordation.
27.19 Perpetuities. Notwithstanding any provision in this Lease to the
------------
contrary, if the Lease Term has not commenced within twenty-one (21)
years after the date of this Lease, this Lease shall automatically
terminate on the 21st anniversary of the date of this Lease. The
sole purpose of this provision is to avoid any possible
interpretation of this Lease as violating the Rule Against
Perpetuities or other rule of law against restraints on alienation.
27.20 Effectiveness. The furnishing of the form of this Lease shall not
--------------
constitute an offer and this Lease shall become effective upon and
only upon its execution by and delivery to each party hereto.
27.21 Option to Purchase. In the event Landlord desires to sell all or
------------------
any portion of the Building and/or the Premises, or convert the same
to a condominium regime, Landlord shall first offer the same to
Tenant. The purchase price shall be at market value as determined in
good faith by an appraiser selected by the Landlord and an appraiser
selected by the Tenant. In the event the market appraisals are not
the same, the purchase price shall be the average of the two
appraisals. If Tenant does not exercise its right to purchase all or
any of the above after 60 days notice from Landlord by confirming in
writing the engagement of an appraiser, then the Landlord shall be
free to sell same at its sole and absolute discretion.
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27.22 Signage/Name. Tenant agrees to give Landlord the right to name the
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Premises and surrounding property "Trex Center". Landlord has the
sole discretion to change the name at any time provided that Tenant
is no longer occupying the Premises. Tenant agrees to bear the cost
for two signs on property so long as the signs bear the name "Trex".
Landlord agrees to use Trex approved logo and color on all project
signage.
27.23 Right of First Offer. Landlord agrees that during the Lease Term,
---------------------
if space in the Building ("Offering Space") becomes or may become
available for any reason, Landlord, prior to offering the space to
any third party, shall notify Tenant in writing of the availability
of the Offering Space including the estimated date of availability
("Landlord's Notice"). In the event Tenant desires to lease such
Offering Space pursuant to the same terms of the Lease set forth
herein as they apply to the Premises, Tenant shall provide Landlord
with written notice of such interest within ten (10) days of the
receipt of such Landlord's Notice.
27.24 Right to Renew. Tenant shall have the right to extend the Term for
---------------
two (2) additional five (5) year terms upon the same terms,
covenants, and conditions as herein contained. Tenant may exercise
each such Renewal Period by giving Landlord notice in writing at
least six (6) months prior to the then scheduled expiration of the
Term. However, if Tenant fails to give such notice at least six (6)
months prior to the then scheduled expiration of the Term, Tenant
shall not be deemed to have waived the right to exercise such
Renewal Period until Landlord gives Tenant written notice of
Tenant's failure to exercise such Renewal Period and affords Tenant
a period of thirty (30) days after receipt of such notice to
exercise such Renewal Period. Landlord shall give Tenant written
notice of Tenant's failure to exercise such Renewal Period seven (7)
months prior to the expiration of the Term.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under seal
as of the Date of Lease.
LANDLORD:
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ATTEST/WITNESS:
--------------- -----------------------------------
By: /s/ Xxxxx X. Xxxxx
--------------------------------
/s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
--------------------------- Title: Manager
Name: Xxxxx X. Xxxxxx
----------------------
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ATTEST/WITNESS: TENANT:
--------------- -------
/s/ Xxxxx X. Xxxxxx (SEAL) By: /s/ Xxxxxx X. Xxxxxxx
--------------------- ---------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
Title: President
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