EXHIBITS FOR S-1 REGISTRATION STATEMENT
OF METRO INFORMATION SERVICES, INC.
EXHIBIT 10.17 REVISED AND RESTATED LEASE DATED AS OF JANUARY 1, 1986 BY AND
BETWEEN C-F LYNNHAVEN ASSOCIATES AND REGISTRANT FOR PREMISES
LOCATED AT 000 XXXXXXXXX XXXXXXX, XXXXXXXX XXXXX, XXXXXXXX 00000.
REVISED AND RESTATED LEASE AGREEMENT
THIS REVISED AND RESTATED LEASE (the "Lease") is made and entered
into as of the 1st day of January, 1986, by and between C-F LYNNHAVEN
ASSOCIATES, a Virginia general partnership ("Lessor"), and METRO INFORMATION
SERVICES, INC., a Virginia corporation ("Lessee"), such terms to include
Sublessor and Sublessee whenever the context so requires or admits, revising
and restating a Lease Agreement originally effective December 1, 1985.
I. PROPERTY LEASED
1.1 DEMISE. In consideration of the covenants hereinafter to be
performed and in payment of rentals and additional charges to be paid by
Xxxxxx in accordance with the provisions of this Lease, Lessor leases unto
Lessee and Lessee takes and hires from Lessor the following described
property (the "demised premises").:
See Exhibit "A" attached hereto and made a part hereof.
1.2 COVENANT OF QUIET ENJOYMENT. The Lessor covenants, subject to
the due performance of all of the terms and conditions of the Lease, that
Xxxxxx shall be entitled to the peaceful enjoyment and underturned possession
of the premises for the term hereof.
II. TERM
2.1 TERM. The term of this Lease shall commence on December 1,
1985 and shall expire on November 30, 2005.
2.2 EARLY TERMINATION. In addition to Xxxxxx's other rights to
terminate this Lease, Lessor shall have the right to terminate this Lease on
any anniversary of this Lease on or after November 30, 1990, (a "Termination
Date") on the following terms and conditions:
(a) Lessor is not indebted to United Virginia Bank in any
amount on the Termination Date.
(b) Lessor has provided Lessee ninety (90) days prior written
notice prior to the Termination Date.
2.3 POSSESSION. Possession of the demised premises shall be
delivered to the Lessee upon the commencement date.
2.4 HOLDOVER. Any holdover at the expiration of the lease term
with the consent of the Lessor shall be on a month- to-month basis, which
tenancy may thereafter be terminated by Lessor giving Lessee not less than
ten (10) days notice. During any such holdover tenancy, Xxxxxx agrees to pay
monthly to Lessor rentals and other charges in the same manner as hereinafter
provided and agrees to continue to be bound by all of the terms of this Lease
so far as are then applicable.
2.5 END OF TERM. Upon the expiration of the Lease, and any
extensions, Xxxxxx having fully complied with the terms and conditions,
Lessor hereby waives any right to claim any equipment, personal property or
trade fixtures located in or attached to the demised premises which are owned
by Xxxxxx, and same may be removed by Lessee provided that the premises are
restored to their original condition, with normal wear and tear excepted.
III. CONSIDERATION
3.1 RENT. From January 1, 1986 until November 30, 1990, Xxxxxx
agrees to pay to Lessor monthly rent on the first day of the each month
Eleven Thousand Dollars ($11,000.00). Each year thereafter, the Lessor and
Lessee shall determine a monthly rent to apply during such year. The amount
of such rental shall in no circumstance be less than the rental during a
preceding year plus an increase attributable to the increase in the cost of
living during the preceding term by reference to the Department of Labor,
Bureau of Labor Statistics Consumer Price Index (1967 = 100) - All items,
U.S. Cities.
3.2 ADDITIONAL CHARGES. All costs expenses and charges of every
kind and nature relating to the demised premises (except the taxes of Lessor
referred to herein and any payments on account of interest of principal under
any mortgage or deed of trust which shall be a lien on the fee of the demised
premises), which may arise or become due during the initial term or any
renewal term of this Lease shall be paid by Lessee, and that Lessor shall be
indemnified and saved harmless by Lessee from and against the same, except
Lessor shall pay all real estate taxes with respect to the demised premises,
all condominium fees, electric, water, and other utilities, cleaning and
janitorial services and insurance with respect to the demised premises as set
forth hereinafter. The rent shall be paid to Lessor without notice or demand
and without abatement, deduction or set-off, except as otherwise expressly
herein provided. All taxes, charges, costs and expenses which Xxxxxx assumes
or agrees to pay under any provisions of this Lease together with all
interest and penalties that may accrue thereon in the event of Xxxxxx's
failure to pay same as herein provided, all other damages, costs and
expenses, including without limitation witness fees, attorneys fees,
deposition and other legal and court costs which Lessor may suffer or incur,
and any and all other sums
which may become due, by reason with the agreements, terms, covenants and
conditions of this Lease on Xxxxxx's part to be performed, shall be deemed to
be additional rent and in the event of nonpayment, Lessor shall have all the
rights and remedies herein provided in the case of non-payment of rent. All
rental payments delinquent for a period in excess of ten (10) days shall be
subject to late charges being assessed at the rate of twenty percent (20) per
annum.
IV. THE PREMISES
4.1 USE. Lessee will operate computer services business on
the demised premises. The premises will be used for no other purpose.
4.2 REPAIRS AND MAINTENANCE. Lessee shall, at all times during the
term, and at its own cost and expense, keep and maintain in good order and
condition the offices and all improvements on the demised Premises and their
full equipment and appurtenances, and make all repairs thereto and any
restorations, replacements, and renewals thereof, structural and
non-structural, seen or unforeseen, howsoever the necessity or desirability
for repairs may occur; and shall use all reasonable precaution to prevent
waste, damage or injury.
Notwithstanding the obligation of the Lessee hereunder to make all
necessary repairs to the demised premises, the Lessor may enter upon the
premises and make such repairs or alterations as may be necessary for the
safety and preservation thereof provided, however, that, except in the case
of emergency, the Lessor shall give Lessee ten (10) days notice before making
any repairs. In the event that Lessee shall fail or neglect to make such
repairs, Lessor or its agents may enter upon the premises for the purpose of
making such repairs and all costs and expenses consequent thereon, with
interest thereon, shall be repaid by the Lessee to the Lessor as additional
rent. The receipted payment by the Lessor for the making of such repairs,
alterations, or improvements shall be prima facie evidence of the
reasonableness of such charges therefor and that the same have been paid by
the Lessor.
Lessor shall, at all times during the term of this Lease, at
Lessor's sole cost and expense, provide standard janitorial and cleaning
services three (3) times each week. The janitorial services and cleaning
services shall include, but not be limited to, emptying trash and waste,
vacuuming carpeted areas, mopping uncarpeted areas, cleaning water closets,
dusting furniture, and pictures, and other similar services. It shall not
include cleaning carpets, waxing floors, painting, or similar services.
4.3 ALTERATIONS. Lessee shall not alter or renovate the exterior
nor interior of the Premises without prior written changes to be made to
Lessor at least thirty (30) days prior to commencement of renovations and
Lessee shall bear all expenses involved with said renovation. In the event
such consent is given,
all work shall be performed in a good workmanlike manner in accordance with
accepted building practices and so as not to weaken or impair the structure
or lessen the value of the building.
Lessee shall not, at any time, make any alteration rebuilding,
replacement, change, addition, or improvement in or to the demised premises
or to any building thereon, unless:
(a) the same shall be performed in a first class workmanlike
manner, at Xxxxxx's sole expense, and shall not weaken or impair the
structural strength, or lessen the value of such buildings as shall be on the
demised premises at the time, or change the purpose for which such buildings
may be used;
(b) the same shall be made according to plans and
specifications therefor, which shall be first submitted to and approved in
writing by Xxxxxx;
(c) before the commencement of any such work, such plans and
specifications shall be approved by all governmental having an interest
therein;
(d) before the commencement of any such work, Lessee shall pay
the amount of any increase in premiums on insurance policies on account of
endorsements to be made thereon covering the risk during the course of such
work, and workmen's compensation insurance covering all persons employed in
connection with the work;
(e) if the estimated cost of such work shall exceed
$10,000.00, Lessee shall furnish to Lessor a surety bond in a company
acceptable to Lessor, in an amount equal to the estimated cost of such work,
or other security satisfactory to Lessor, guaranteeing the completion of such
work, free and clear of all liens and encumbrances;
(f) with respect to each contract for labor, services,
materials, or supplies in connection with any such alteration, addition or
improvement which shall contemplate or call for an aggregate expenditure
therefor of more than $10,000.00 before the commencement of any such work,
Lessee shall deliver to Lessor either (1) a duplicate original of such
contract, if in writing, which shall provide that no lien or claim shall
thereby be created or arise or be filed by anyone thereunder upon or against
the demised premises or any of the equipment thereof, or (2) a written waiver
by the architect, engineer, contractor, subcontractor, materialman, mechanic,
or other person contracting to furnish such labor, services, materials or
supplies, of all right of lien which he or it might otherwise have upon or
against the demised premises or the improvements to be altered, repaired,
improved or constructed, or the interest of Lessor therein.
All buildings, alterations, replacements, additions, improvements,
equipment and appurtenances on or in the demised
premises at the commencement of the term, and which may be erected, installed
or affixed on or in the demised premises during the term, shall be deemed to
be and immediately become part of the realty and the sole property of Lessor,
and shall be deemed to be part of the demised premises.
4.4 LIENS. Should Lessee cause any alternations, replacements,
additions, improvements or repairs to be made to the demised premises, or
cause any labor to be performed or material to be furnished therein, thereon
or thereto, neither Lessor nor the demised premises shall under any
circumstances be liable for the payment of any expense incurred, but all such
alterations, replacements, additions, improvement, and repairs, and labor and
material, shall be made and performed at Lessee's expense. If, because of
any act or omission of Lessee, any mechanic's or other lien, charge or order
for the payment of money shall be filed against the demised premises or
improvements thereon, or against Lessor, Lessee shall, at its own cost and
expense, cause the same to be cancelled and discharged of record or bonded
within ten (10) days after notice of filing thereof.
4.5 SIGNS. Any, sign or symbol placed upon any portion of the
building or premises by the Lessee shall be subject to the prior written
approval of the Lessor.
4.6 INSPECTION. Fee owner, Lessor, or their representatives, shall
have the right to enter the premises at reasonable hours of any business day
during the term to ascertain if the premises are in proper repair and
condition.
4.7 LICENSE AND LAWS. The Lessee shall, at its own cost and
expense, obtain all necessary licenses and/or permits which may be required
for the conduct of its business; and Lessee shall, at its own cost and
expense, promptly observe and comply with all present and future laws,
ordinances, requirements, orders, directions, rules and regulations of
governmental authorities having or claiming jurisdiction over the demised
premises or appurtenances or any part thereof or the conduct of Lessee's
business thereon. Xxxxxx, after notice to Lessor, may, by appropriate
proceedings conducted promptly at Xxxxxx's own expense, in Xxxxxx's name
and/or (whenever necessary) Lessor's name, contest in good faith the validity
or enforcement of any such statute, law, ordinance, regulation or order. So
long as (i) such deferment shall not subject Lessor to a fine or other
criminal liability, (ii) Lessee shall be diligently prosecuting such contest
to a final determination by the governmental authority or body having
jurisdiction thereof, and (iii) Lessee shall have furnished Lessor with such
security as Lessor may request in connection with such contest.
4.8 DAMAGE OR DESTRUCTION. If, during the term, the buildings,
improvements on the equipment on, in or appurtenant to thereafter erected
thereon or therein shall be destroyed or damaged in whole or in part by fire
or other cause, Lessee shall cost and
expense, shall promptly repair, replace, and rebuild the possible to the
character of the buildings and improvements and the equipment therein
existing immediately prior to such occurrence; and Lessor shall in no event
be called upon to repair, replace, or rebuild any such buildings,
improvements or equipment, or to pay any of the costs or expenses thereof
beyond or in excess of the insurance proceeds as herein provided.
All insurance proceeds received by Lessor on account of such damage
or destruction, less the actual cost, fees, and expenses, if any, incurred in
connection with adjustment of the loss, shall be applied by Lessor to pay or
reimburse Lessee for the payment of the cost of the aforesaid restoration,
including the cost of temporary repairs or for the protection of property
pending the completion of permanent restoration, and shall be paid out from
time to time as such restoration progresses upon the written request of
Lessee which shall be accompanied by evidence satisfactory to Lessor that:
(a) (1) the sum then requested either has been paid by Xxxxxx
or is justly due to contractors, subcontractors, materialmen, or other
persons who have rendered services or furnished materials for the restoration
therein specified, and that the sum then requested does not exceed the value
of the services and materials described in the certificate;
(2) except for the amount, if any, stated pursuant to the
foregoing to be due for services or materials, there is no outstanding
indebtedness known to the persons signing such certificate, after due
inquiry, which is then due for labor, wages, materials, supplies, or services
in connection with such restoration;
(3) the cost of the restoration required to be done in
order to complete the same, does not exceed the insurance money; and
(4) that there have not been filed with respect to not
been discharged of record, except such as will be discharged Lessor or the
Insurance Trustee shall, out of such insurance or cause to be paid to Lessee
or the persons named pursuant to this Section, the respective amounts stated
therein to have been paid by Lessee or to be due to them, as the case may be.
If the insurance money and other funds deposited with Lessor or the
Insurance Trustee, less the actual cost, fees and expenses, if any, incurred
in connection with the adjustment of the loss, shall be insufficient to pay
the entire cost of such restoration, Lessee will pay the deficiency.
Upon receipt by Lessor or the Insurance Trustee of that the
restoration has been completed and paid for in full and that there are no
liens of the character referred to therein, any balance of the insurance
money held by Lessor or the Insurance
Trustee, if any, shall be paid to Lessee.
At least twenty (20) days before the commencement of such repairs,
replacement or rebuilding, Lessee shall notify Lessor of its intention to
commence the same. This Lease shall not terminate, nor shall the rental and
other charges payable hereunder be abated or be affected in any manner.
4.9 WARRANTIES; DISCLAIMER. Lessor shall provide Lessee with the
benefit of any warranties provided by the building contractor or any building
subcontractor. Lessor expressly disclaims any other warranty, either express
or implied, and Xxxxxx acknowledges that neither Lessor nor its agents have
made any representations or promises with respect to the demised premises,
site improvements and appurtenances, except as herein expressly set forth,
and no rights, easements, or licenses are acquired by Lessee by implication
or otherwise except as expressly set forth herein. Taking possession of the
demised premises by Xxxxxx shall be conclusive evidence, as between Xxxxxx
and Xxxxxx, their successors or any permitted assigns that the Lessee has
accepted the premises "AS IS."
Nothing herein shall be construed as a limitation of Xxxxxx's rights
to pursue any cause of action it may have against any third parties for
defects in materials or workmanship.
V. TAXES AND OTHER CHARGES
5.1 Lessor shall pay before the last day on which payment may be
made without penalty or interest, all real property taxes, assessments, and
other governmental impositions and charges of every kind and nature
whatsoever, which shall or may during the term be assessed, imposed, become
due and payable in connection with the occupancy or possession of the demised
premises or any buildings, appurtenances therein, and all taxes assessed or
imposed in lieu of or in addition to the foregoing under virtue of all
present or future laws or regulations of all governmental authorities
whatsoever. Lessee shall pay before the last day on which payment may be
made all personal property taxes and utility charges, other than as set forth
herein, and other governmental assessments with respect to the demised
premises on the equipment thereon. All such taxes, assessments, and utility
charges, other than as set forth herein, assessed or imposed for each fiscal
period in which the term of this Lease commences and terminates shall be
apportioned.
5.2 Lessor shall pay or reimburse Lessee for all electric, water,
and sewer utility charges during the term of this Lease when the same become
due. Lessor's obligations shall be for standard electric, water and sewer
charges and shall not extend to any extraordinary charges such as providing
new service to the building, excavation, repairs to any breaks or
discontinuance of services. Nothing in the foregoing shall create in Lessee a
right against Lessor for interruptions in any utility services. Lessee
shall be responsible for all other utilities including, without limitation,
gas, steam, telephone or cable television.
VI. INSURANCE
6.1 During the term of this Lease, Lessor, at its own cost and
expense, shall keep all buildings and improvements on or appurtenant to the
demised premises at the commencement of the term and thereafter erected
thereon or therein, insured against loss or damage by perils of fire,
lightning, wind, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles, smoke, vandalism and malicious mischief in an
amount sufficient to cover the cost of replacing the building(s) and
improvements (without deduction for depreciation), exclusive of foundation
supports below the surface of the ground, and the costs of excavation,
underground pipes, flues, wiring, and drains.
During the term of this Lease, Lessee, at its own cost and expense,
shall:
(a) Provide and keep in force comprehensive general public
liability insurance against claims for personal injury, death or property
damage occurring on, in or about the demised premises or the adjoining
streets, property and passageways, such insurance to afford minimum
protection, during the term of this Lease, of not less than $1,000,000 in
respect of personal injury or death to any on person, and of not less than
$1,000,000 in respect of any one occurrence and not less than aggregate
property damage during any policy year).
(b) Provide and keep in force plat glass insurance covering
the glass in the demised premises, unless waived by Lessor;
(c) Upon request of Lessor to provide and keep in force rent
insurance (and/or, as the case may require, use and occupancy insurance) in
an amount not less than the annual net rent plus the estimated annual taxes,
water charges, sewer rents and installments of assessments and the annual
premiums for the insurance required by this Article.
(d) Provide and keep in force such other insurance and in such
amounts as may from time to time be required by Lessor or any mortgagee
against such other insurable hazards as at the time are commonly insured
against in the case of premises similarly situated.
6.2 All insurance provided by Lessee as required by Lessor shall be
carried in favor of Xxxxxx and Xxxxxx, as their respective interest may
appear, and any underlying Lessor, fee owner or affiliate corporation,
trustee or mortgagee designated by Xxxxxx. If requested by Lessor, such
insurance against fire or other casualty shall include the interest of the
holder of any mortgage on the fee and shall provide that loss, if any, shall
be
payable to such holder under a standard mortgagee clause. All such insurance
shall be taken in such responsible companies, licensed to do business in the
state of which the demised premises are located, as Lessor shall approve and
the policies there for shall at all times be held by Lessor or, when
appropriate, by the holder of any such mortgage, in which case copies of the
policies shall be delivered by Lessee to Lessor. All such policies shall be
non-assessable and shall require twenty (20) days notice by registered mail
to Lessor of any cancellation thereof or change affective Lessor's coverage
thereunder.
6.3 Claims for loss resulting to the demised premises covered under
any policies provided for in this Lease shall be adjusted with the insurance
companies (a) by Lessee in the case of any particular casualty resulting in
damage or destruction not exceeding $10,000 in the aggregate, or (b) by
Lessor and Lessee, in the case of any particular casualty resulting in damage
or destruction exceeding $10,000 in the aggregate. Subject to the rights of
the holder of any mortgage to which the Lease is or shall be subject and
subordinate, the proceeds of any such insurance, as so adjusted, shall be
payable as follows:
(a) With respect to any loss not exceeding $10,000 in the
aggregate, such loss shall be paid to Xxxxxx who shall hold the proceeds in
trust for the purpose of paying the costs of repair and restoration; and
(b) With respect to losses exceeding $10,000 in the aggregate,
the loss shall be paid to Lessor and shall be applied to pay the costs of
repair and restoration.
6.4 Lessee shall procure policies for all such insurance for
periods of not less than one year and shall deliver to Lessor such Policies
or certificates thereof with evidence of the payment of premiums thereto, and
shall procure renewals thereof from time to time at least twenty (20) days
before the expiration thereof.
6.5 Lessee and Lessor shall cooperate in connection with the
collection of any insurance moneys that may be due in the event of loss, and
Xxxxxx shall execute and deliver to Lessor such proofs of loss and other
instruments which may be required for the purpose of obtaining the recovery
of any such insurance moneys. All insurance policies shall be written with
insurance companies rated AAA or better by Best's Insurance Guide.
VII. INDEMNIFICATION
7.1 Lessee shall indemnify and save harmless Lessor against and
from all costs, expenses, liabilities, losses, damages, injunctions, suits,
actions, fines, penalties, claims and demands of every kind or nature,
including reasonable counsel fees, by or on behalf of any person, party or
governmental authority whatsoever arising out of (a) any failure by Lessee to
perform any of the
agreements, terms covenants on conditions of this Lease on Lessee s part to
be performed, (b) any accident, injury or damage which shall happen in or
about the demised premises, however occurring, and any matter or these
growing out of the condition, occupation, maintenance, alteration, repair,
use or operation of the demised premises, or any part thereof.
VIII. ENFORCEMENT
8.1 Each of the following events shall be a default hereunder by
Xxxxxx and a breach of this Lease:
(a) If Lessee shall file a petition in bankruptcy or
insolvency or for reorganization or arrangement under the bankruptcy laws of
the United States or any insolvency act of any state or shall voluntarily
take advantage of any such law or act by answer or otherwise or shall be
dissolved or shall make an assignment for the benefit of creditors.
(b) If involuntary proceedings under any such bankruptcy law
or insolvency act or for the dissolution of a corporation shall be instituted
against Lessee or of a receiver or trustee shall be appointed of all of the
property of Xxxxxx and such proceedings shall not be dismissed or such
receivership or trusteeship vacated within thirty (30) days after such
institution or appointment.
(c) If Lessee shall fail to pay Lessor any rent as and when
the same shall become due and payable and shall lot make such payment within
twenty (20) days after notice thereof by Lessor to Lessee.
(d) If Lessee shall fail to perform any of the agreements,
terms, covenants or conditions hereof on Lessee's part to be performed and
such non-performance shall continue for a period within which performance is
required to be made by specific provision of this Lease or if no such period
is so provided for a period of twenty (20) days after notice thereof by
Lessor to Lessee or, if such performance cannot be reasonably had within such
thirty (30) day period, Lessee shall not in good faith have commenced such
performance within such thirty day period and shall not diligently proceed
therewith to completion.
(e) If Lessee shall vacate or abandon the demised premises.
(f) If this Lease or the estate of Lessee hereunder shall be
transferred to or upon any other person or party, except in a manner permitted.
If any such event of default as described in this subsection
8.1 shall occur and be continuing, Lessor shall have the might to terminate
this Lease by giving to Lessee not less than twenty (20) days notice, and
upon the expiration of the time fixed
in such notice, this Lease and the term hereof shall expire in the same
manner and with the same force and effect, except as to Xxxxxx's liability,
as if the expiration of the time fixed in such notice of cancellation were
the end of the term originally demised.
8.2 After expiration of the applicable period of notice, or without
notice in the event of any emergency, Lessor at its option may, but shall not
be obligated to, make any payment required of Lessee herein or comply with
any agreement, term, covenant or condition, required hereby to be performed
by Lessee and the amount so paid, together with interest thereon at the rate
of the highest legal rate permitted from the date of such payment by Lessor,
shall be deemed to be additional rent hereunder payable by Lessee and
collectible as such. Lessor shall have the right to enter the demised
premises for the purpose of correcting or remedying any such default, out
neither any such expenditure nor any such performance by Lessor shall be
deemed to waive or release Xxxxxx's default or the right of Lessor to take
such action as may be otherwise permissible hereunder in the case of such
default.
8.3 In the event of cancellation or termination of this Lease
either by operation of law or otherwise, Lessor may re-enter and repossess
the demised premises, using such force for that purpose as may be necessary
without being liable to prosecution therefor, and Xxxxxx shall nevertheless
remain and continue liable to Lessor in a sum equal to all net rent,
additional rent and other charges payable hereunder for the remainder of the
term originally demised.
If Lessor shall so re-enter, Lessor may repair and alter the demised
premises in such manner as to Lessor may seem necessary or advisable, and/or
let or relet the demised premises the term herein originally demised or for a
longer period, in Lessor's name or as the agent of Lessee, and out of any
rent collected or received from subtenants.
8.4 Should any rent collected by Xxxxxx as provided in above after
the payments therein mentioned be insufficient to fully Pay to Lessor a sum
equal to all rent or additional rent or both reserved herein and other
charges payable hereunder for the deficiency shall be paid by Xxxxxx
immediately.
8.5 In any of the circumstances mentioned above in which Lessor
shall have the right to hold Lessee liable, Lessor so liable, forthwith to
recover against Lessee as damages for loss of the bargain and not as a
Penalty, in addition to any other damages becoming due, an aggregate sum
which, at the time of the termination of this Lease or of the recovery of
possession of the demised premises by Lessor, as the case may be, represents
the then present worth of the excess, of any, of the aggregate of the rent
and additional rent and all other charges payable by Xxxxxx hereunder that
would have accrued for balance of the term over the aggregate rental value of
the demised premises for the balance of such term.
8.6 Suit or suits for the recovery of the deficiency or damage or
for any installment or installments of rent and additional rent hereunder, or
for a sum equal to any such installment or installments may be brought by
Lessor, from time to time at Lessor's election, and nothing in this Lease
contained shall be deemed to require Lessor to await the date whereon this
Lease or the term hereof would have expired by limitations had there been no
such default be Lessee or no such cancellation or termination.
8.7 Lessee hereby expressly waives service of any notice of
intention to re-enter. Lessee hereby waives any and all rights to recover or
to regain possession of the demised premises or to reinstate or to redeem
this Lease or other right of redemption as permitted or provided by or under
any statute, law or decision now or hereafter in force and effect. No
receipt of moneys by Lessor from Lessee, after the cancellation or
termination hereof in any lawful manner, shall reinstate, continue or extend
the term, or affect any notice theretofore given to Lessee or operate as a
waiver of the right of Lessor to enforce the payment of rent and additional
rent then due or thereafter falling due, or operate as a waiver of the right
of Lessor to recover possession of the demised by proper suit, action,
proceeding or other remedy, and any and all such moneys so collected shall be
deemed to be payments on account of the use and occupation of the demised
premises, or at the election of the Lessor, on account of Xxxxxx's liability
hereunder.
8.8 Nothing in this Article shall limit or prejudice the right of
Lessor to prove and obtain as liquidated damages in any bankruptcy,
insolvency, receivership, reorganization or dissolution proceeding an amount
equal to the maximum allowed by any statute or rule of low governing such
proceeding and in effect at the time when such damages are to be proved,
whether or not such amount be greater, equal to or less than the amount of
the damages referred to in any of the preceding sections.
8.9 In the event of a breach or a threatened breach by Xxxxxx of
any of the agreements, terms, covenants or conditions hereof, Lessor shall
have the right of injunction to restrain the same and the right to invoke any
remedy allowed by law or in equity, as if specific remedies indemnity or
reimbursement were not herein provided.
8.10 The rights and remedies of Lessor are distinct, separate and
cumulative, and no one of them, whether or not exercised by Lessor, shall be
deemed to be in exclusion of any of the others.
8.11 The failure of Lessor to insist upon a strict performance of
any of the agreements, terms, covenants and conditions hereof shall not be
deemed a waiver of any rights or remedies that Lessor may have and shall not
be deemed a waiver of any subsequent breach or default in any of such
agreements, terms,
covenants and conditions.
IX. RENT ABATEMENT
9.1 Except as may hereinafter provided, no abatement, diminution,
or reduction of rent, charges or other compensation shall be claimed by or
allowed to Lessee, or any person claiming under it, under any circumstances,
whether for inconvenience, discomfort, interruption or business, or otherwise.
X. CONDEMNATION
10.1 In the event that the demised premises or any part thereof shall
be taken in condemnation Proceedings or by exercise of any right of eminent
domain or by settlement agreement in lieu thereof between Lessor and those
authorized to exercise such right, Lessor shall be entitled to collect the
entire award made without deduction for any estate hereby vested in or owned
by Xxxxxx, subject to the rights of the fee simple owner of the real
property, which constitutes a part of the demised premises, if Lessor is not
fee simple owner, and to the rights of holder of any mortgage to which this
Lease is or shall be subject and subordinate, and subject also to Xxxxxx's
rights as hereinafter set forth. Xxxxxx agrees to execute any and all
documents that may be required in order to facilitate collection by Xxxxxx of
any and all such awards. Lessee shall have no right to participate in any
condemnation proceedings or agreement except for the purpose of protection
Xxxxxx's interest hereunder.
Lessor shall be entitled to one hundred percent (100%) and of any
net condemnation award.
10.2 If at any time during the term of this Lease, the whole or
substantially all of the demised premises shall be so taken or condemned,
this Lease shall terminate and expire on the date upon which title shall vest
in the condemning authority and the net rent provided to be paid by Xxxxxx
shall be apportioned and paid to such date. For the purposes of this
Section, "substantially all of the demised premises" shall be deemed to have
been taken if the position of the demised premises not so taken, and taking
into consideration the amount of the net award available for such purpose,
cannot be so repaired or reconstructed as to constitute a complete, rentable
structure capable of producing a proportionately fair and reasonable net
annual income after payment of all operating expenses thereof, the net rent,
as the same may be reduced as a result of such taking, additional rent and
all other charges hereunder payable, and after performance of all covenants,
agreements terms and provisions herein and by law provided to be performed
and paid by Xxxxxx.
10.3 In the event of a partial taking, which shall not result in
termination of this Lease, Lessee shall promptly proceed to rebuild, repair
and restore the remainder of the building on the demised premises if affected
thereby to a complete, independent and
self-contained architectural unit, for the purposes in use before the taking,
and Lessor shall pay to Lessee, subject to the same provisions and
limitations specified herein respecting insurance proceeds, the cost of
restoration but in no event to exceed a sum equal to the amount of the
separate award made for consequential damage. Any deficiency will be paid by
Xxxxxx. Such work and the performance thereof shall be subject to and shall
be performed in accordance with the provisions respecting alterations, except
that the surety company bond shall be in the amount, of any, by which the
estimated cost of the work exceeds said separate award from consequential
damage. In the event that there is no separate award for consequential
damage, the same shall be fixed and settled by arbitration as herein provided.
If this Lease does not terminate as provided herein, the rental
after the date of taking shall be the rental payable by Xxxxxx immediately
prior to the taking, reduced by proportionately by the square footage of the
building taxes.
10.4 Nothing in this article shall be construed as precluding Lessee
from pursuing any independent action permitted by law or from participating
in the condemnation proceedings for the purpose of securing an independent
award for loss of business or damage to trade fixtures.
XI. SUBORDINATION
11.1 This Lease shall be fully subordinate to any mortgage and/or
collateral assignment of lease against the premises which the fee owner,
Lessor and/or its assigns may have or hereafter obtain upon the premises.
Any such sums paid by Xxxxxx on Xxxxxx's behalf shall be credited to rent due
hereunder. The Lessee hereby grants a power of attorney to the Lessor with
full power to act as its attorney in fact and to execute on behalf of the
Lessee any and all documents that may be required by a mortgagee and/or
assignee evidencing the Lessee's full subordination of the Lessee's interest
to any mortgage and/or collateral assignment of lease that may be entered
into by the Lessor, fee owner or its assigns. In the event the mortgagee
assignee requires the Lessee to execute such documents to evidence the full
subordination of the Xxxxxx's interest, the Lessee hereby agrees to execute
any and all documents that may be requested. However, the Lessee shall not
be required to execute any promissory notes or other evidences of
indebtedness which would create any personal liability on behalf of the
Lessee.
XII. ASSIGNMENT
12.1 As between Lessor and Lessee, this Lease shall be fully
assignable by the Lessor or its assigns. Neither Lessee, nor Xxxxxx's
successors or assigns, shall (unless hereinafter expressly Permitted to do
so) assigns, mortgage, pledge or encumber this Lease in whole or in part, or
sublet the demised premises, in whole or in part, or permit the same or any
portion thereof to be used or
occupied by others, or enter into a management contract or other arrangement
whereby the demised premises shall be managed and operated by anyone other
than the then owner of Xxxxxx's leasehold estate hereunder, nor shall this
Lease be assigned or transferred by operation of law, without the prior
consent in writing of Lessor in each instance which consent shall not be
unreasonably withheld and subject to the prior consent of any mortgagee or
holder of a deed of trust of the demised premises. If this Lease be assigned
or transferred, or if all or any part of the demised premises be sublet or
occupied by anybody other than Lessee, Lessor may collect rent from the
assignee, transferee, subtenant or occupant, and apply the net amount
collected to the rent reserved herein, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of any agreement, term,
covenant, or condition hereof, or the acceptance of the assignee, transferee,
subtenant or occupant as lessee, or a release of Lessee from the performance
or further performed by Xxxxxx of the agreements, terms, covenants and
conditions hereof, and Xxxxxx shall continue liable hereunder in accordance
with the agreements, terms, covenants and conditions hereof. The consent by
Xxxxxx to an assignment, mortgage, pledge, encumbrance, transfer, management
contract or subletting shall not in any way be construed to relieve Xxxxxx
from obtaining the express consent in writing of Lessor to any further
assignment, mortgage, pledge, encumbrance, transfer or subletting.
12.2 If the sale, assignment, transfer or other Disposition of any of
the issued and outstanding capital stock of Lessee (or of any successor or
assignee of Lessee which is a corporation), or of the interest of any general
partner of a partnership owning the leasehold estate created hereby, or of
the interest of any member of a joint venture, syndicate or other group which
may collectively own such leasehold estate, shall result in changing the
control of Lessee or such other corporation or such partnership, joint
venture, syndicate or other group, such sale, assignment, transfer or other
disposition shall be deemed an assignment of this Lease and shall be subject
to all of the provisions of this Lease with respect to assignments. For the
purpose of this paragraph, "control" of any corporation shall be deemed to be
vested in the person or persons owning more than forty percent (40%) of the
voting power for the election of the Board of Directors of such corporation
and "control" of a partnership, joint venture, syndicate or other group shall
be deemed to be vested in the person or persons owning more than forty
percent (40%) of the general partners' interest in such partnership or of the
total interest in such joint venture, syndicate or other group. A statement
shall be furnished by Lessee, its successors or permitted assigns, to Lessor
listing the names and addresses of all stockholders in any corporation or
general partners in any Partnership holding this lease, showing the number of
shares of stock owned by each stockholder of such corporation, or the
respective interests of the partners in such partnership, as the case may be;
provided, however, that, if at any time during the term of this Lease any
corporation holding this Lease is listed on any recognized Stock Exchange,
then a list of its stockholders
shall be required.
12.3 No assignment made with Xxxxxx's consent or as hereinabove
permitted, shall be effective until there shall have been delivered to Lessor
an executed counterpart of such assignment containing an agreement, in
recordable form, executed by the assignor and the proposed assignee, wherein
and whereby such assignee assumes due performance of the obligations on the
assignor's part to be performed under this Lease to the end of the term
hereof.
XIII. MISCELLANEOUS
13.1 ARBITRATION. In such cases where this Lease provides for the
settlement of a dispute or question by arbitration, the same shall be settled
by arbitration in the City of Virginia Beach, Virginia, in accordance with
the rules then obtaining of the American Arbitration Association, and
judgment upon the award rendered may be entered in any court having
jurisdiction thereof.
13.2 NOTICES. Every notice, approval, consent or other communication
authorized or required by this Lease shall be effective if given in writing
and sent by United States Registered or Certified Mail, Return Receipt
Requested, with postage prepaid, and addressed directly to Lessor at its
offices 000 Xxxxxxxxx Xxxxxxx, X.X. Box 8888, Virginia Beach, Virginia 23450,
and to Lessee at the premises, or at such other address as either party shall
from time to time designate in writing. All payments to the Lessor shall be
made at the address designated for notices to the Lessor.
13.3 CONSTRUCTION. In the event that any of the provisions of this
Lease shall by court order be held invalid or in contravention of any of the
laws of the United States Government or any state thereof having jurisdiction
over the subject matter hereof or of any dispute arising hereunder, such
invalidation shall not serve to effect the remaining portion of this Lease
Agreement. To the extent permitted by the laws of the state wherein the
demised premises are situated, this Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia.
13.4 SUCCESSORS. This Lease shall bind Xxxxxx and Xxxxxx and their
successors, heirs, assigns, administrators, legal representatives, as the
case may be.
13.5 RECORDING. Lessee shall upon request of Xxxxxx execute a short
form of this Lease by a written document witnessed and acknowledged in form
capable of being recorded in the public records. Lessee shall not record
this Lease or a short form thereof without prior written consent of Xxxxxx.
13.6 COUNTERPARTS. This Lease is being executed simultaneously in
counterparts, any one of which shall be deemed an
original.
13.7 NO AGENCY. The parties hereto agree that the business
relationship created hereby is solely that of Xxxxxx and Xxxxxx. Nothing
herein contained shall constitute Lessee as an agent, legal representative,
partner, subsidiary, joint venturer and shall not bind or obligate Lessor in
any way, manner or thing whatsoever, nor represent that it has any right to
do so.
13.8 BINDING EFFECT. This Lease shall become immediately binding upon
the parties hereto upon the date of the last Party signing hereunder
notwithstanding that the term of this Lease shall commence upon a future date.
13.9 HEADINGS. The headings or titles of the paragraphs and
subparagraphs are inserted solely for the convenience of reference and shall
not constitute a part of this Lease, nor limit, define or describe the scope
or intent of this Lease.
13.10 DEFINITIONS.
(a) The term "Lessor" as used herein shall mean only the owner
for the time being in fee of the demised premises, or the owner of the
leasehold estate created by an underlying lease, or the mortgagee of the fee
or of such underlying lease, in possession for the time being of the demised
premises, so that in the event of any sale or sales of the demised premises,
or of the making of any such underlying lease, or of any transfer or
assignment or other conveyance of such underlying lease and the leasehold
estate thereby created, the seller, lessor, transferor or assignor shall be
and hereby is entirely freed and relieved of all agreements, covenants and
obligations of Lessor herein, and it shall be deemed and construed without
further agreement between the parties or their successors in interest or
between the parties and the purchaser, lessee, transferee or assignee on any
such sale, leasing, transfer or assignment that such purchaser, lessee,
transferee or assignee has assumed and agreed to carry out any and all
agreements, covenants and obligations of Lessor hereunder.
(b) The term "Lessee" shall mean the Lessee named herein, and
from and after any valid assignment of the whole of Xxxxxx's interest in this
Lease pursuant to the provision hereof, the assignee thereof.
(c) The terms "mortgagee" or "holder of a deed of trust" shall
include the other and any individual, firm, partnership, corporation, joint
venture, investment trust bank or institution, or other business group or
association lending funds to Lessor upon the security of Lessor's interest in
this Lease and the premises demised herein whether or not such mortgage or
deed of trust be recorded or upon Lessor s independent covenant not to
otherwise encumber this Lease or the demised premises.
(d) The term "equipment" as used herein means only
that equipment used in conjunction with the building, such as heating,
ventilating and air conditioning systems, water heaters or softeners and
items of similar nature, and does not include Lessee's computer equipment.
(e) The term "trade fixtures" shall be deemed to include all
detached or detachable computer equipment.
IN WITNESS WHEREOF, the Lessor and the Lessee have respectively
signed and sealed this Lease as of the day and year first above written.
C-F LYNNHAVEN ASSOCIATES, Lessor
By /s/ XXXXX X. XXXXXXX
-----------------
General Partner
METRO INFORMATION SERVICES, INC., Lessee
BY /s/ XXXX X. XXXX
-------------
its President
COMMONWEALTH OF VIRGINIA
AT LARGE
Before me a Notary Public, in and for the Commonwealth of Virginia,
personally appeared XXXXX X. XXXXXXX, General Partner of C-F Lynnhaven
Associates, who acknowledged the signing of the foregoing Lease Agreement for
the purposes therein mentioned this 23RD day of JANUARY, 1987.
/s/ XXXXXX X. XXXXXXXX
----------------------
Notary Public
My Commission Expires: 5/1/88
COMMONWEALTH OF VIRGINIA
AT LARGE
Before me a Notary Public, in and for the Commonwealth of Virginia,
personally appeared XXXX X. XXXX, President of Metro Information Services,
Inc., acknowledged the signing of the foregoing Lease Agreement for the
purposes therein mentioned this 23RD day of JANUARY, 1987.
/s/ XXXXXX X. XXXXXXXX
----------------------
Notary Public
My Commission Expires: 5/1/88
---------------------------