EXHIBIT 10.7
DEED OF LEASE
BETWEEN
WJG, LLC
As Landlord,
AND
ACCESS NATIONAL MORTGAGE
As Tenant
Dated: September 7, 2001
For Premises Located at 0000 Xxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx
Draft prepared September 7, 2001
TABLE OF CONTENTS
[page references need to be updated]
ARTICLE 1
BASIC LEASE PROVISIONS 1
1.1 Premises 1
1.2 Building 1
1.3 Term 1
1.4 Commencement Date 1
1.5 Expiration Date 1
1.6 Basic Rent 1
1.7 Security Deposit 1
1.8 Expense Stop 1
1.9 Tenant's Proportionate Share of Operating Expenses 1
1.10 Parking Space Allocation 1
1.11 Permitted Use 1
1.12 Tenant's Trade Name 2
1.13 Broker(s) 2
1.14 Landlord's Address 2
1.15 Tenant's Address 2
ARTICLE 2
DEFINITIONS 2
2.1 Additional Rent 2
2.2 Agents 2
2.3 Alterations 2
2.4 Calendar Year 2
2.5 Common Area 2
2.6 Event of Default 2
2.7 Herein, hereafter, hereunder and hereof 2
2.8 Interest Rate 2
2.9 Land 2
2.10 Lease Year 2
2.11 Mortgage 3
2.12 Mortgagee 3
2.13 Operating Expenses 3
2.14 Parking Facilities 3
2.15 Real Estate Taxes 3
2.16 Rent 3
2.17 Rules and Regulations 3
2.18 Substantial Completion 3
2.19 Substantial Part 3
2.20 Project 3
2.21 Legal Requirements 3
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ARTICLE 3
PREMISES 3
3.1 Lease of Premises 3
3.2 Landlord's Reservations 4
ARTICLE 4
LANDLORD'S CASH CONCESSION 4
ARTICLE 5
RENT 4
5.1 Basic Rent 4
5.2 Payment of Basic Rent 4
5.3 Additional Rent 5
ARTICLE 6
SECURITY DEPOSIT 5
6.1 General 5
6.2 Security in the form of Cash 5
ARTICLE 7
OPERATING EXPENSES 5
7.1 Tenant's Proportionate Share of Operating Expenses 5
7.2 Operating Expenses Defined 6
7.3 Exclusions from Operating Expenses 7
7.4 Estimated Payments 8
7.5 Actual Operating Expenses 8
7.6 Tenant's Right to Audit 8
7.7 Controlled Operating Expenses 9
ARTICLE 8
TAXES 9
ARTICLE 9
PARKING 9
9.1 Parking Spaces 9
9.2 Changes to Parking Facilities 9
ARTICLE 10
USE 10
10.1 10
10.2 Payment of Taxes 10
ARTICLE 11
ASSIGNMENT AND SUBLETTING 10
11.1 Consent 10
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11.2 [Deleted.] 11
ARTICLE 12
MAINTENANCE 11
12.1 Landlord's Obligation 11
12.2 Tenant's Obligation 11
12.3 Compliance with Legal Requirements 11
12.4 Landlord's Right to Maintain Repair 12
ARTICLE 13
ALTERATIONS 12
13.1 Landlord's Obligations 12
13.2 Alterations 12
13.3 Removal of Alterations 13
13.4 Landlord Alterations 13
ARTICLE 14
SIGNS 13
ARTICLE 15
TENANT'S EQUIPMENT AND PROPERTY 14
15.1 Moving Tenant's Property 14
15.2 Installing and Operating Tenant's Equipment 14
ARTICLE 16
RIGHT OF ENTRY 14
ARTICLE 17
INSURANCE 14
17.1 Insurance Rating 14
17.2 Liability Insurance 14
17.3 Insurance for Personal Property 15
17.4 Contractual Liability Insurance 15
17.5 Requirements of Insurance Coverage 15
17.6 Prohibition Against Concurrent Insurance 15
17.7 Waiver of Subrogation 15
17.8 Security 16
ARTICLE 18
LANDLORD SERVICES AND UTILITIES 16
18.1 Ordinary Services to the Premises 16
18.2 After-Hours Services to the Premises 16
18.3 Landlord's Right to Meter Tenant's Electrical Usage 17
ARTICLE 19
LIABILITY OF LANDLORD 17
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19.1 No Liability 17
19.2 Indemnity 17
19.3 No Personal Liability; Sale 17
ARTICLE 20
RULES AND REGULATIONS 18
ARTICLE 21
DAMAGE; CONDEMNATION 18
21.1 Damage to the Premises 18
21.2 Landlord Released from Liability 18
21.3 Condemnation 19
ARTICLE 22
DEFAULT 19
22.1 Events of Default 19
22.2 Landlord's Remedies 19
22.3 Rights Upon Possession 20
22.4 No Waiver 20
22.5 Right of Landlord to Cure Tenant's Default 20
22.6 Late Payment; Interest 21
22.7 Landlord Default 21
ARTICLE 23
MORTGAGES 21
23.1 Subordination; Nondisturbance 21
23.2 Mortgagee Protection 22
23.3 Modification Due to Financing 22
ARTICLE 24
SURRENDER; HOLDING OVER 22
24.1 Surrender of the Premises 22
24.2 Holding Over 22
ARTICLE 25
QUIET ENJOYMENT 23
ARTICLE 26
TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS 23
26.1 Definition 23
26.2 General Prohibition 23
26.3 Notice 23
26.4 Survival 24
ARTICLE 27
MISCELLANEOUS 24
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27.1 No Representations by Landlord 24
27.2 No Partnership 24
27.3 Brokers 24
27.4 Estoppel Certificates 24
27.5 Waiver of Injury Trial 25
27.6 Notices 25
27.7 Invalidity of Particular Provisions 25
27.8 Gender and Number 25
27.9 Benefit and Burden 25
27.10 Entire Agreement 25
27.11 Authority 25
27.12 Attorney's Fees 26
27.13 Interpretation 26
27.14 Time of the Essence 26
27.15 Force Majeure 26
27.16 Headings 26
27.17 Memorandum of Lease 26
27.18 Landlord Decisions 27
27.19 Landlord's Compensation for Tenant Delays 27
27.20 Effectiveness 27
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LIST OF EXHIBITS
Exhibit A-1 Plan Showing Premises
Exhibit A-2 Plat Showing Land And Building
Exhibit B [deleted]
Exhibit C Rules and Regulations
Exhibit D Estoppel Certificate
Exhibit E Extension Options
Guaranty Agreement
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DEED OF LEASE
THIS DEED OF LEASE (this "Lease") is made as of the 7th day of
September, 2001 (the "Lease Date"), by WJG, LLC, a Virginia limited liability
company ("Landlord") and ACCESS NATIONAL MORTGAGE CORPORATION, a Virginia
corporation, or permitted assigns ("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. The entire third (3rd) floor, consisting of approximately
9,417 rentable square feet located in the Building, as outlined on
the floor plan attached hereto as Exhibit A-1 and made a part
hereof, and such non-exclusive rights as are described expressly in
this Lease.
1.2 Building.The building containing approximately 28,648 rentable
square feet shown on Exhibit A-2 attached hereto and made a part
hereof, and all alterations, additions, improvements, restorations
or replacements now or hereafter made thereto, with an address of
0000 Xxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000.
1.3 Term. Five (5) years, subject to Exhibit E, attached hereto and made
a part hereof.
1.4 Commencement Date. December 1, 2001 or such earlier date as the
tennent is able to commence operating its business in the premises.
1.5 Expiration Date. The date which is Five (5) years after the
Commencement Date, unless the Commencement Date is extended as
provided in this Lease.
1.6 Basic Rent. During the first Lease Year (defined below) the Tenant
shall pay Basic Rent in the total of $116,591.00 in monthly
installments as follows:
$1,382.58 per month for he first six (6) months, beginning the
Commencement Date; and $18,049.25 per month (based on 23.00 per each
rentable square foot) for the remaining six (6) months of the first
Lease Year.
Beginning on the first day of the second Lease Year, the Basic Rent
shall be increased annually for each Lease Year by three percent
(3%) over the previous Lease Year's Basic Rental rate.
1.8 Expense Stop. Operating Expenses (defined below) for the calendar
year 2001; subject, however, to Article 7.2.
1.9 Tenant's Proportionate Share of Operating Expenses. 32.9% of the
Operating Expenses allocable to the Building and Land (rentable
square feet of Premises divided by rentable square feet of Building.
1.10 Parking Space Allocation. See Article 9.
1.11 Permitted Use. General office use for banking, mortgage company
operations and other financial services, together with other general
office use, including without limitation use by professionals such
as accountants and attorneys, and all office uses incidental
thereto, or other general office use as further defined by but also
subject to zoning and other applicable laws. "Permitted Use" shall
not include any use, regardless of its being permitted by applicable
zoning, that in Landlord's sole but reasonable discretion or
observation entails, or may be expected to entail, use of or demand
for any one or more building services or facilities substantially in
excess of the demands anticipate by Landlord for the Tenant name
herein (such as, for purposes of illustration only, a "call center"
use). Also see Article 10.
1.12 Tenant's Trade Name. Access National Mortgage.
1.13 Broker. Landlord's: Jefferson Commercial Real Estate.
1.14 Landlord's Address. c/o Jefferson Commercial Real Estate, Agents
for Landlord, 0000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxxxxxx
00000, Attention: Xxxxxxx Xxxxxx, President.
1.15 Tenant's Address. Prior to Commencement Date: 0000 Xxx Xxxxxxxxxx
Xx. Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxxx, President;
following Commencement Date: 0000 Xxx Xxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxxx, President.
ARTICLE 2
DEFINITIONS
The following terms, when used herein, shall have the meaning set
forth below.
2.1 Additional Rent. As defined in Section 5.3.
2.2 Agents. Officers, partners, directors, shareholders, members,
managers, employees, agents, licensees, customers, contractors and
invitees.
2.3 Alternatives. Alterations, decorations, additions or improvements of
any kind or nature to the Premises or the Building, whether
structural or non-structural, interior, exterior, or otherwise.
2.4 Building Standard. The quality of materials, finishes and
workmanship normally found in the Building or, if none, are found,
in the buildings of similar quality.
2.5 Calendar Year. A period of twelve (12) months commencing on each
January 1 during the Term, except that the first Calendar Year shall
be that period from and including the Commencement Date through
December 31 of that same year, and the last Calendar Year shall be
that period from and including the last January 1 of the Term
through the earlier of the Expiration Date or date of Lease
Termination.
2.6 Common Area. All areas, improvements, facilities and equipment from
time to time designated by Landlord for the common use or benefit of
more than one tenant of the Building and their Agents, including,
without limitation, entrances and exits, landscaped areas, exterior
lighting, loading areas, pedestrian walkways, sidewalks, atriums,
courtyards, concourses, stairs, ramps, washrooms, maintenance and
utility rooms and closets, exterior utilities lines, hallways,
lobbies, elevators and their housing and rooms, common window areas,
common walls, common ceilings, common trash areas and Parking
Facilities. Any such areas or features that are internal to the
Premises demised hereby shall not be considered to be Common Areas.
2.7 Event of Default. As defined in Article 22.
2.8 Herein, hereafter, hereunder and hereof. Under this Lease,
including, without limitation, all Exhibits, Riders, and addenda.
2.9 Interest Rate. The highest per annum interest rate listed as the
base rate on corporate loans at large U.S. money center commercial
banks, as published from time to time under "Money Rates" in the
Wall Street Journal, plus three percent (3%), but in no event
greater than the maximum rate permitted by law. In the event the
Wall Street Journal ceases to publish such rates, Landlord shall
choose at Landlord's sole discretion a similar publication which
publishes such rates.
2.10 Land. The piece or parcel of land described in Exhibit A-2 and all
rights, easements and appurtenances thereunto belonging or
pertaining, or such portion thereof as shall be allocated by
Landlord to the Building.
2.11 Lease Year. Each consecutive twelve (12) month period elapsing
after (I) the Commencement Date if the Commencement Date occurs on
the first day of a month, or (ii) the first day of the month
following the Commencement Date if the Commencement Date does not
occur one the first day of a month.
2.12 Mortgage. Any mortgage, deed of trust, security interest or title
retention interest affecting the Building or the Land.
2.13 Mortgagee. The holder of any note or obligation secured by a
Mortgage, including, without limitation, lessors under ground
leases, sale-leasebacks and lease-leasebacks.
2.14 Operating Expenses. As defined in Section 7.2.
2.15 Parking Facilities. All parking areas now or hereafter made
available by Landlord for use by tenants, including, without
limitation, open-air parking, parking decks and parking areas under
or within the Building, whether reserved, exclusive, non-exclusive
or otherwise.
2.16 Real Estate Taxes. As defined in Article 8.
2.17 Rent. Basic Rent and additional Rent.
2.18 Rules and Regulations. The rules and regulations set forth in
Exhibit C attached hereto and made a part hereof, as the same may be
amended or supplemented by Landlord from time to time.
2.19 Substantial Part. More than fifty percent (50%) of the rentable
square feet of the Premises or the Building, as the case may be.
2.20 Project. The Building, Land (including without limitation all
Parking Facilities), and all structures located on the Land.
2.21 Legal Requirements. All laws, statues, ordinances, orders, rules,
regulations and requirements, including without limitation all
mandatory energy conservation requirements and Americans with
Disabilities Act requirements applicable to the Building, of all
federal, state and municipal governments, and the appropriate
agencies, officers, departments, boards and commissions thereof,
whether now or hereafter in force, which are or may hereafter become
applicable to the Land, the Building, or any part thereof, as
applicable; all applicable local, state and federal laws and
regulations relating to the use on, storage in, and the removal
from, the Land and/or the Building of hazardous or toxic material,
petrochemical products or asbestos or products containing asbestos;
notices from a Mortgagee of the Building as to the manner of use or
occupancy or the maintenance, repair or condition of the Premises,
the Land and/or the Building; and all covenants, conditions and
restrictions of record affecting the use or occupancy of the
Building.
ARTICLE 3
PREMISES
3.1 Lease of Premises. In consideration of the agreements contained
herein, Landlord hereby leases the Premises to Tenant, and Tenant
hereby leases the Premises from Landlord, for the Term and upon the
terms and conditions hereinafter provided. As an appurtenance to the
Premises, Tenant shall have the non-exclusive right, together with
other tenants of the Building, their Agents and the Landlord, to use
the Common Area. Landlord shall retain absolute dominion and control
over the Common Area and shall operate and maintain the Common Area
in such manner as Landlord, in its sole reasonable discretion, shall
determine; provided, however, that such exclusive right shall not
operate to prohibit or materially disrupt Tenant from
its use of the Premises for the Permitted Use. Landlord expressly
reserves the right permanently to change, modify or eliminate, or
temporarily to close, any portion of the Common Area, Provided that
such does not unreasonably interfere with Tenant's use of the
Premises and does not diminish or unreasonably alter the size or
configuration of the Premises. The Premises are leased subject to,
and Tenant agrees not to violate, all present and future covenants,
conditions and restriction record which affect the Land and the
Building. Landlord shall have provided Tenants with copy of existing
recorded covenants, conditions and restrictions, of which Landlord
has actual Knowledge, prior to the execution of this Lease.
3.2 Landlord's Reservations. In addition to the other rights of Landlord
under this Lease, Landlord reserves the right (I) to change the
street address and/or name of the Building, (ii) to install, erect,
use, maintain and repair mains, pipes, cables, wiring, conduits and
other such facilities to serve the Building's tenants in and through
the Premises, (iii) to grant to anyone the exclusive right to
conduct any particular business or undertaking in the Building or
the Land, (iv) to establish a condominium regime for the Building,
Land and/or the Common Area and to include the Premise therein, (v)
to control the use of the roof and exterior walls of the Building
for any reasonable purpose, and (vi) to use Tenant's name in
promotional materials relating to the Building, provided that such
use only discloses that Tenant's leases part of the Premises and
does not disclose any terms of this Lease. Landlord may exercise any
or all of the foregoing rights without being deemed to be guilty of
an eviction, actual or constructive, or a disturbance or
interruption of the business of Tenant or Tenant's use or occupancy
of the Premises.
ARTICLE 4
TERM/EXTENSION OPTIONS
4.1 Initial Term. The initial Term of this Lease shall be as stated in
Section 1.3
4.2 Access to Complete Alterations. Landlord agrees that Tenant shall be
provided adequate and reasonable access to the Premises, prior to
the Commencement Date, to construct and install the Alterations
necessary for Tenant to commence the beneficial use of the Lease
subject to the terms and conditions of this Lease. See, in
particular, Section 13.2, below. Such access shall be provided as
necessary to permit Tenant to complete any Landlord-approved plans
and specifications for such Alterations. Thereafter, upon the
Landlord's approval of the approval of the Alterations, Tenant shall
use its commercial best efforts to complete the construction and
installation of the Alterations in time for it to begin use of the
Premises by the Commencement Date, subject to the terms and
provisions of this Lease regarding the construction of Alterations.
The occupancy of the Premises during the period of construction of
the approved Alterations at the Premises shall not be deemed to
constitute the conduct of Tenant's business, and no rent shall be
charged during such period of construction prior to the Commencement
Date. In the event the Landlord does not provide Tenant with
reasonable access to the Premises to construct the approved
Alterations, then the Commencement Date shall be postponed as
reasonably necessary to permit Tenant to complete substantially the
said Alterations. In such case the Expiration Date shall be
correspondingly extended.
4.2 Extension Options. See Exhibit E.
ARTICLE 5
RENT
5.1 Basic Rent. Tenant shall pay to Landlord the Basic Rent as specified
in Section 1.6.
5.2 Payment of Basic Rent. Basic Rent for each Lease Year shall be
payable in equal monthly installments, in advance, without demand,
notice, deduction, offset or counterclaim, on or before the first
day of each and every calendar month during the Term; provided,
however, that the installment of the Basic Rent payable for the
first full calendar month of the Term shall be due and payable upon
the full execution and delivery of this Lease, provided further,
however, that if the Commencement Date occurs on a date other than
on the first day of a calendar month, Basic Rent payable for the
first full month of the Term shall be reduced by the prorated
portion of the first month's Rent constituting days that preceded
the Commencement Date, and the last payment of Basic Rent required
under this Lease, as and if extended, likewise shall be adjusted
proportionally to ensure payment of Basic Rent, based on the Amount
then payable, through the Expiration Date. Tenant shall pay the
Basic 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. If Tenant
makes any payment to Landlord by check, such payment shall be by
check of Tenant and Landlord shall not be required to accept the
check of any other person (except for Access National Bank), and any
check received by Landlord shall be deemed received subject to
collection. If any check is mailed by Tenant, Tenant shall post such
check in sufficient time prior to the date when payment is due so
that such check will be received by Landlord on or before the date
when payment is due. Tenant shall assume the risk of lateness or
failure of delivery of the mails, and no lateness or failure of the
mails will excuse Tenant from its obligation to make the payment in
question when required under this Lease. All bank service charges
resulting from any bad checks shall be borne by Tenant, together
with an administrative fee of $150. Any payment made by Tenant to
Landlord on account of Basic Rent may be credited by Landlord to the
payment of any late charges then due and payable and to any Basic
Rent or Additional Rent then past due before credited to Basic Rent
currently due.
5.3 Additional Rent. All sums payable by Tenant under the Lease, other
than Basic Rent, shall be deemed "Additional Rent," and, unless
otherwise set forth herein, shall be payable in the same manner as
set forth above for Basic Rent.
6.1 General. Simultaneously with the execution of this Lease, Tenant
shall deposit in the Security Deposit with Landlord, which shall be
held by Landlord as security for the performance of Tenant's
obligations and covenants under the Lease. If in cash, Landlord
shall deposit the same into a money market or other interest bearing
account, with interest becoming part of the Security Deposit. It is
expressly understood and agreed that such Security Deposit is not an
advance rental deposit or a measure of Landlord's damages in case of
an Event of Default;
and that it shall not be maintained separately from the general
funds of Landlord or otherwise be an identifiable fund but rather
shall exist solely as an obligation of Landlord to Tenant as
provided in, and subject to the terms and conditions of, this Lease.
6.2 Security in the Form of Cash. If an Event of Default shall occur or
if Tenant fails to surrender the Premises in the condition required
by this Lease, Landlord shall have the right (but not the
obligation), and without prejudice to any other remedy which
Landlord may have on account thereof, to draw down, if a letter of
credit, and any event to apply all or any portion of the Security
Deposit to cure such default or to remedy the condition of the
Premises. If Landlord so applies the Security Deposit or any portion
thereof before the Expiration Date or earlier termination of this
Lease, Tenant shall deposit with Landlord, upon demand, the amount
necessary in cash to restore the Security Deposit to an amount equal
to one (1) month's Basic Rent at the Basic Rent rate payable at the
time of such restoration. If Landlord shall sell or transfer its
interest in the Building, Landlord shall have the right to transfer
the Security Deposit to such purchaser or transferee, in which
event, provided Landlord provides Tenant with reasonable written
evidence that the Security Deposit has been delivered to the
purchaser or transferee, Tenant shall look solely to the new
landlord for the return of the Security Deposit, and Landlord
thereupon shall be released from all liability to Tenant for the
return of the Security Deposit. Although the Security Deposit is and
shall be deemed the property of Landlord, any remaining balance of
the Security Deposit shall be returned to Tenant after the
expiration or earlier termination of this Lease, provided that all
of Tenant's obligations under this Lease have been fulfilled.
Landlord shall conduct a "Post Move-Out Inspection" of the Premises
within thirty (30) days after the expiration or termination of this
Lease and shall return all or the applicable portion of the Security
Deposit within sixty (60) days after such Inspection, together with
an explanation of any non-return, which itemizes any deductions from
the Security Deposit. The Security Deposit shall not be mortgaged,
pledged, assigned or encumbered in any manner whatsoever by Tenant.
ARTICLE 7
OPERATING EXPENSES
7.1 Tenant's Proportionate Share of Operating Expenses. Beginning with
the payment of Basic Rent due on the first day of the second Lease
Year, Tenant shall pay to Landlord throughout the Term, as
Additional Rent, Tenant's Proportionate Share of the amount by which
the Operating Expenses during each Calendar Year of the Lease Term
exceeds the Expense Stop. Landlord shall estimate and Tenant shall
pay the amounts due as provide in Section 7.4. In the event that the
Commencement Date or the Expiration Date are other than the first
day of a Calendar Year then Tenant's Proportionate Share of the
Operating Expenses for the first Calendar Year in which such
payments are required shall be calculated nonetheless based upon the
Expense Stop, subject only to reasonable adjustment as set forth in
Section 7.2.
7.2 Operating Expenses Defined. As used herein, the term "Operating
Expenses" shall mean all expenses and costs of every kind and nature
which Landlord reasonably incurs because of or in connection with
the ownership, maintenance, management and operation of the Building
(which expressly includes the Land, the Building and the Common
Area). If the Building is less than ninety-five percent (95%)
occupied in the calendar year 2001, then the Expense Stop shall be
reasonably and equitably adjusted upwards to reflect an occupancy
level for the Building of ninety-five percent (95%) for such year.
If for any Calendar Year the Building is less than ninety-five
percent (95%) occupied, Operating Expenses shall include all
additional costs and expenses of operation, management and
maintenance of the Building which Landlord reasonably and equitably
determines that it would have paid or incurred during any Calendar
Year if the Building had been ninety-five percent (95%) occupied.
If, during all or any part of a Calendar Year, any part of the
Building is leased to a tenant (hereinafter referred to as a
"Special Tenant") which, in accordance with the terms of its lease,
provides its own cleaning and janitorial services, has separately
metered
electrical service or is not otherwise required to pay Operating
Expenses Increases on the basis of operating expenses for the
Building which include substantially the same components as the
Operating Expenses (as defined in Section 7.2), the Operating
Expenses for such Calendar Year shall be increased by the additional
costs for cleaning and janitorial service, electricity and the other
expenses, as reasonably estimated by Landlord, that would have been
incurred by Landlord (based on normal use and occupancy of an
ordinary business without special cooling, electrical or other
operational requirements) if Landlord had furnished and paid for
cleaning and janitorial services for the space occupied by the
Special Tenant, the space occupied by the Special Tenant was not
separately metered for electricity or Landlord had furnished and
paid for any other service which the Special Tenant did not receive
and which was not included in operating expenses as defined in the
Special Tenant's lease. Operating Expenses shall include, without
limitation, all costs, expenses and disbursements that are incurred
or made commercially reasonably and in connection with the
following:
(i) Wages and salaries of all employees, including without
limitation an onsite management agent and staff, whether
employed by Landlord or the Building's management company,
engaged in the operation and maintenance or security or the
Building and all costs related to or associated with such
employee 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 Land and Building;
(iii) All utilities, including without limitation, electricity,
telephone (including, without limitation, all costs and
expenses of telephone service for the sprinkler alarm
system, if any), communications, cable, water, sewer, power,
gas, heating, lighting and air conditioning for the Land and
Building, except to the extent such utilities are charged
directly to or paid directly by, a tenant of the Building
(but any tenant paying surcharges or direct payments due to
approved excess use shall not be precluded from paying for
its "basic" or average use);
(iv) All insurance purchased by Landlord or the Building's
management company relating to the Land and Building and any
equipment or other property contained therein or located
thereon including, without limitation, casualty, liability,
rental loss, sprinkler and water damage insurance;
(v) All repairs to the Land and Building (excluding repairs paid
for by the proceeds of insurance or by Tenant or other third
parties other than as apart of the Operating Expenses),
including interior, exterior, structural or non-structural,
and regardless of whether foreseen or unforeseen;
(vi) All maintenance of the Land and Building, including,
without limitation, painting, ice and snow removal,
landscaping including the purchase and installation of
additional landscaping not included in the original
landscaping plan and replacement or substitute landscaping,
groundskeeping and the patching, painting and resurfacing of
driveways and parking lots;
(vii) A management fee, not to exceed five percent (5%) payable
to Landlord or the company or companies, whether or not
related to Landlord, managing the Building including but not
limited to a separate fee for the Parking Facilities, if
any;
(viii) All maintenance, operation and service agreements for the
Land And 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 paid for by Tenant or any third parties
other than as a part Operating Expenses);
(ix) Accounting and legal fees incurred in connection with the
operation and maintenance of the Building or related
thereto;
(x) Any additional services not provided to the Building at the
Commencement Date but thereafter provided by Landlord as
Landlord in its reasonable discretion shall deem necessary
or desirable in connection with the management or operation
of the Land and Building;
thereof;
(xi) Any and all computer rentals reasonably required for energy
management or security monitoring systems, if any;
(xii) Any capital improvements made to the Building, whether
during the period used to calculate the Expense Stop or
after the Commencement Date (other than those made for the
additional of rentable square footage to the Building or for
the sole benefit of a Building tenant pursuant to its
lease), the cost of which shall be amortized over such
reasonable period as Landlord shall determine (such periods
shall be not less than as the minimum period(s) permitted by
the Internal Revenue Code, as amended), together with
interest on the unamortized balance of such cost at the
Interest Rate or such higher rate as may have been paid by
Landlord on funds borrowed for the purposes of constructing
said capital improvements;
(xiii) All Real Estate Taxes which are defined in Article 8
below; all business license fees, personal property taxes
and other taxes or license fees which are part of the Land
and Building operations; and
(xiv) Other reasonable expenses and costs of operating and
maintaining the Land and Building.
7.3 Exclusions from Operating Expenses. Operating Expenses shall not
include the following:
(i) Legal fees, space planners' fees, real estate brokers'
leasing commissions and advertising expenses incurred solely
in connection with the leasing of space in the Building;
(ii) Costs and expenses of alterations or improvements of the
Premises or the leasehold premises of other individual
tenants;
(iii) Costs of correcting defects in the Building or the
materials used in the construction of the Building or the
equipment or appurtenances thereto to the extent covered by
warranties and recovered by Landlord;
(iv) Depreciation, interest and principal payments on mortgages
and other debts costs, if any, other than amortization of
and the interest factor attributable and permitted capital
improvements;
(v) Costs and expenses associated with the ownership interest in
the Landlord and 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 Tenant or any other tenant may be in issue), cost
of selling or financing any of Landlord's interest in the
Building and outside fees paid in connection with disputes
with other tenants; and
(vi) Costs and expenses directly resulting from the gross
negligence or willful misconduct of Landlord or its Agents,
to the extent proven by Tenant.
7.4 Estimated Payments. Landlord shall submit to Tenant, before the
beginning of each Calendar Year or as soon thereafter as possible, a
reasonably itemized statement of Landlord's estimate of the
Operating Expenses payable by the Tenant during such Calendar Year.
In addition to the Basic Rent, Tenant shall pay to Landlord on or
before the first day of each month the property prorated share of
estimated operating expenses payable by Tenant for such Calendar
Year as set forth in Landlord's statement. If Landlord fails to give
Tenant notice of its estimated payments due under this Section for
any Calendar Year, then Tenant shall continue making monthly
estimated payments in accordance with the estimate for the previous
Calendar Year until a new estimate is provided. If the Landlord
determines that, because of unexpected increases in Operating
Expenses or other reasons, Landlord's estimate of the Operating
Expenses was too low, then Landlord shall have the right at any time
and from time to time to give a new statement of the estimated
Operating Expenses due from Tenant for such Calendar Year or the
balance thereof and to xxxx Tenant for any deficiency which may have
accrued during such Calendar Year, and Tenant within thirty (30)
days after notice from Landlord shall pay such deficiency to
Landlord and thereafter Tenant shall pay monthly estimated payments
based on
such new statement, provided that such an adjustment shall not occur
not more often than once per year.
7.5 Actual Operating Expenses. Within one hundred twenty (120) days
after the end of each Calendar Year, or as soon as possible
thereafter, Landlord shall submit a statement to Tenant showing the
actual Operating Expenses for such Calendar Year and Tenant's
Proportionate Share of the amount by which such Operating Expenses
exceed the Expense Stop. If for any Calendar Year Tenant's estimated
monthly payments exceed Tenant's Proportionate Share of the amount
by which the actual Operating Expenses for such Calendar Year exceed
the Expense Stop, then Landlord shall give Tenant credit in the
amount of the overpayment toward Tenant's next monthly payments of
estimated Operating Expenses. If for any Calendar Year Tenant's
estimated monthly payments are less than Tenant's Proportionate
Share of the amount by which the actual Operating Expenses for such
Calendar Year exceed the Expense Stop, then Tenant shall pay the
total amount of such deficiency to Landlord within thirty (30) days
after notice from Landlord. Landlord's and Tenant's obligations with
respect to any overpayment or under payment of Operating Expenses
shall survive the expiration or termination of this Lease,
7.6 Tenant's Right to Audit. In the event Tenant shall dispute the
amount set forth in Landlord's statement of actual Operating
Expenses of the Building, Tenant shall have the right, not later
than sixty (60) days following receipt of such statement, to cause
Landlord's books and records with respect to the preceding Calendar
Year to be audited by an independent certified public accountant
mutually acceptable to Landlord and Tenant. Such audit shall occur
upon not less than ten (10) business days' written notice to
Landlord, at Landlord's place of business or the actual location of
the Landlord's books and records if different from Landlord's place
of business, during Landlord's normal business hours. The amount
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 an overstatement by
Landlord of the Operating Expenses for the Land and Building of more
than ten percent (10%), 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). If Tenant shall not request an audit in accordance with
the provisions of this Section within (60) days of receipt of
Landlord's statement of actual Operating Expenses, such statement
shall be conclusively biding upon Landlord and Tenant.
ARTICLE 8
TAXES
"Real Estate Taxes" shall mean all taxes and assessments, including
but limiting to, general or special, ordinary or extraordinary, foreseen
or unforeseen, assessed, levied or imposed by any governmental authority
upon the Building and the Land and upon the fixtures, machinery,
equipment or systems in, upon or used in connection with any of the
foregoing, and the rental, revenue or receipts derived therefrom, under
the current or any future taxation or assessment system or modification
of, supplement to, or substitute for such systems. Real Estate Taxes
also shall include special assessments, which are in the nature of or in
substitute for real estate taxes, including, without limitation, road
improvement assessments, special use are assessments
and school district assessments. Real Estate Taxes shall exclude
ordinary income taxes of Landlord. If at any time the method of
taxation prevailing at the date of Lease shall be altered so that in
lieu of, as a substitute for or in addition to the whole or any part of
the taxes now levied or assessed, there shall be levied or assessed a
tax of whatever nature, then the same shall be included as Real Estate
Taxes hereunder. Further, for the purposes of this Article, Real Estate
Taxes shall include the reasonable expenses (including, without
limitation, attorneys' fees) incurred by Landlord in challenging or
obtaining or attempting to obtain a reduction of such Real Estate
Taxes, regardless of the outcome of such challenge. Notwithstanding the
foregoing, Landlord shall have no obligation to challenge Real Estate
Taxes. If as a result of any such challenge, a tax refund is made to
Landlord, then the amount of each refund less the expenses of the
challenge shall be deducted from Real Estate Taxes due in the Lease
Year such refund is received.
ARTICLE 9
PARKING
9.1 Parking Spaces. During the Term, Tenant shall have the right to park
at no cost in that number of spaces equaling 3.6 parking spaces per
1,000 rentable square feet (or such lower number of spaces per foot
as may hereafter be the minimum required by applicable law). In
addition, Tenant shall be allocated five (5) reserved parking
spaces, I a location to be selected by Landlord with the approval of
Tenant, which approval shall not unreasonably be withheld, and
subject however to relocation from time to time, as reasonably
determined by Landlord. Tenant shall be solely responsible for
enforcing its rights to such reversed parking spaces. Landlord shall
permit Tenant to use additional spaces allocable to portions of the
Building which are unoccupied from time to time.
9.2 Changes to Parking Facilities. Landlord shall have the right, from
time to time, without consent, to change, alter, add to, temporarily
close or otherwise affect the Parking Facilities in such manner as
Landlord, in its reasonable discretion, deems appropriate,
including, without limitation, the right to designate reserved
spaces available only for use by one or more tenants (however, in
such event, those parking spaces shall still be deemed Common Area
for the purpose of the definition of Operating Expenses).
ARTICLE 10
USE
10.1 Tenant shall occupy the Premises solely for the Permitted Use and
under Tenant's Trade Name and/or under the name(s) of any
assignee(s) or subleases(s) that are permitted under the terms of
this Lease. The Premises shall not be used for any other purpose
without the prior written consent of Landlord. Tenant shall comply,
at Tenant's expense, with (I) all present and future laws,
ordinances, regulations and orders of the United States of America,
the Commonwealth of Virginia and any other public or quasi-public
federal, state, or local authority having jurisdiction over the
Premises, and (ii) any reasonable request of Mortgagee or any
insurance company providing coverage with respect to the Premises.
Tenant shall not use or
Occupy the Premises in any manner that is unlawful or dangerous or
that shall constitute material waste, unreasonable annoyance or
nuisance to Landlord or the other tenants of the Building.
10.2 Payment of Taxes. Throughout the Term, Tenant covenants and agrees
to pay ten (10) days before delinquency any and all taxes,
assessments and public charge levied, assessed or imposed upon
Tenant's business conducted in the Leased Premises, upon the
leasehold estate or upon Tenant's personal property.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
Tenant shall not assign, transfer, mortgage or otherwise encumber
this Lease or sublet or rent (or permit a third party to occupy or use)
the Premises, or any part thereof, nor shall any assignment or transfer
of this Lease or the right of occupancy hereunder be effected by
operation of law or otherwise, without the prior written consent of
Landlord which shall not be unreasonably withheld, conditioned or
delayed. The parties acknowledge that Tenant is negotiating a sublease
of approximately 1,000 square feet with a certified public accountant
which sublease would begin after the Commencement Date. Landlord agrees
to approve such sublease, provided that the Tenant provides a written
copy of such sublease to Landlord at least fifteen (15) days prior to
the commencement date thereof and such sublease (I) provides for rent
comparable to the rental rate of the Basis Rent, and (ii) the sublease
does not contain any provisions which are contrary to the terms and
conditions of this Lease. For purposes of the foregoing prohibition, a
transfer at any one time or from time to time of twenty percent (20%) or
more of an interest in Tenant (whether stock, partnership interest or
other form of ownership or control) by any person(s) or entity (ties)
having an interest in ownership or control of Tenant at the Lease Date
or thereafter shall be deemed to be an assignment of this Lease. In the
event of an assignment or subletting, the initial Tenant (and, as
applicable, any subsequent tenant) shall remain liable under this Lease
and the initial Tenant shall pay to Landlord fifty percent (50%) of the
amount of rent or other sums directly or indirectly received by Tenant
from any subtenant or assignee which exceeds (a) actual reasonable costs
incurred by Tenant for subtenant/assignee improvements and real estate
brokerage commissions, each as amortized over the Term of the Lease,
plus (b) the Rent due hereunder. Any assignment, encumbrance, or
sublease without Landlord's written consent, unless otherwise expressly
permitted under this Section 11.1, shall be voidable by Landlord and, at
Landlord's election, constitute an Event of Default hereunder. Neither
the consent by Landlord to any assignment, transfer, encumbrance or
subletting nor the collection or acceptance by Landlord of rent from any
assignee, subtenant or occupant shall be construed as a waiver or
release of the initial Tenant or any Guarantor from the terms and
conditions of this Lease or relieve Tenant or any subtenant, assignee or
other party from obtaining the consent in writing of Landlord to any
further assignment, transfer, encumbrance or subletting. Tenant hereby
assigns to Landlord the rent and other sums due from any subtenant,
assignee or other occupant of the Premises and hereby authorizes and
directs each such subtenant, assignee or other occupant to pay such rent
or other sums directly to Landlord; provided, however, that until the
occurrence of an Event of Default, Tenant shall have the license to
continuing collecting such rent and other sums. In addition to the
foregoing limitations on assignment and/or
subletting, upon any written request by Tenant for approval or consent
of an assignment, sublease or other use by a third party of more than
fifty percent (50%) of the Premises (an informal or general oral request
shall not trigger this provision), Landlord shall have the right, but
not the obligation, to terminate the Lease, as to all or a portion of
the Premises concerning which such request was made, which right shall
be exercised, if at all, within ten (10) business days after Landlord's
receipt of such request; if the right is not so exercised, then Landlord
shall maintain such right as to any and all future such requests for
more than fifty percent (50%) of the Premises.
ARTICLE 12
MAINTENANCE AND REPAIR
12.1 Landlord's Obligation. As long as no Event of Default has occurred
and is continuing, Landlord shall keep and maintain in good repair
and working order the structural and non-structural parts of the
Building (including the roof), the Common Area and the major systems
of the Building (including but not necessarily limited to heating,
ventilation, air conditioning, electrical and plumbing) within and
serving the Premises and the Building (excluding Tenant's leasehold
improvements in the Premises) that are required for the normal
maintenance and operation of the Premises, the Building and the
Land. The cost of such maintenance and repairs to the Building, the
Land and said equipment shall be included in the Operating Expenses
and paid by Tenant as provided in Article 7 herein. Tenant shall
immediately give Landlord written notice of any defect or need for
repairs. After such notice, Landlord shall have a reasonable
opportunity to repair or cure such defect; however, Landlord shall
diligently proceed with the correction of such defects as soon as
reasonably possible after receipt of such notice. 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 strictly limited to the cost of such repairs or
maintenance or the curing of such defect; and shall not include
responsibility or liability for or relating to any consequential,
incidental or special injuries or damages that Tenants may incur.
Notwithstanding the foregoing, in the event of such defects
interfere with or prevent Tenant's use of the Premises, and Landlord
neglects to correct such defects for a period exceeding thirty (30)
days after notice thereof, Tenant shall have the right, after first
giving the Landlord five (5) days prior written notice, to take such
actions against the next month's Basic Rent. In addition to the
foregoing, Landlord shall, at Landlord's cost an expense, take
reasonably appropriate and timely action to maintain the Building
(but not at any Alternations or other leasehold improvements
installed by Tenant within the Premises) and Common Area in
compliance with such Legal Requirements as are imposed by order of
any governmental or quasi-governmental agency or authority with
respect to any Common Areas for which Landlord is responsible as
stated in this sentence, including, without limitation, the removal
of Hazardous Materials and the costs of retrofitting or refurbishing
areas to comply with such Legal Requirements that relate to
handicapped access or use pursuant to the Americans with
Disabilities Act. Without limiting anything else contained in this
section, Landlord agrees to make (I) such corrections to the third
floor bathrooms as are necessary to bring them into compliance with
the Americans with Disabilities Act, and (ii) repairs and
adjustments to the elevators located in the Premises so that the
elevators are in good working order on the Commencement Date.
12.2 Tenant's Obligation. Tenant shall at is own expense, maintain all
of Tenant's leasehold improvements in the Premises and other real
and personal property within the Premises in good condition,
promptly making all necessary repairs and replacements. Tenant shall
repair at its own expense, any and all damage caused by Tenant or
Tenant's Agents, contractors or subcontractors to the Building, the
Common Area, the Land or the Premises, including equipment within
and serving the Building, ordinary wear and tear expected (but not
during any periods of construction by or on account of Tenant). Not
withstanding the foregoing, the Tenant shall bear the cost of, but
shall not itself perform without Landlord's prior consent, any such
repairs which would affect the Building's structure or mechanical or
electrical systems or which would be visible from the exterior of
the Building or from any interior Common Area of the Building. Where
Landlord performs such repairs, Tenant shall promptly pay to
Landlord upon the demand date until paid. Without the prior written
consent of the Landlord, which shall not unreasonably be withheld,
Tenant shall not have access to the roof of the Building for any
purpose whatsoever. In addition to the foregoing, Tenant shall, at
Tenant's cost and expense, take reasonably appropriate and timely
action to maintain the entire third floor, as well as any portion of
the Premises or otherwise defined premises rented by Tenant
hereafter, in compliance with such Legal Requirements as are imposed
by order of any governmental or quasi-governmental agency or
authority with respect to any such areas for which Tenant is
responsible as stated in this sentence, including, without
limitation, the removal of Hazardous Materials and the costs of
retrofitting or refurbishing areas to comply with such Legal
Requirements that relate to handicapped access or use pursuant to
the Americans with Disabilities Act.
12.3 Compliance with Legal Requirements. Tenant, at its own expense,
shall ensure that its Alterations made before the Commencement Date
comply with Legal Requirements, and agrees to make any Alterations
required after the Commencement Date to comply with Legal
Requirements to the Premises and to the Building, provided, however,
that its obligations with respect to the Building shall be limited
to the extent the obligation to comply with such Legal Requirements
arises from or is legally required for Tenant's use or manner of use
of the Premises. Tenant shall not use or occupy the Premises, or
permit the Premises, the Building, the Parking Facility of the Land
to be used or occupied, in violation of any Legal Requirements. If,
the Premises are being used for a purpose which is in violation of
any Legal Requirements, Tenant shall, upon five (5) days' notice
from Landlord, immediately discontinue such use if the Premises. If
thereafter the governmental authority asserting such violation
threatens, commences or continues proceedings against Landlord for
Tenant's failure to discontinue such use, in addition to any and all
rights, privileges and remedies given to Landlord under this Lease
for default therein, Landlord shall have the right to terminate this
Lease forthwith. Tenant shall indemnify and hold harmless Landlord
from and against any and all liability for such violation or
violations, including without limitation attorney's fees, costs of
experts and court costs.
12.4 Landlord's Right to Maintain Repair. If, within five (5) days
following the notice to Tenant, Tenant fails to commence to repair
or replace any damage to the Premises, Land or Building which is
Tenant's obligation to perform, and/or fails diligently to pursue
timely completion of such repair and replacement, Landlord may, at
its option, cause all required maintenance, repairs or replacements
to be made. Tenant shall promptly pay Landlord all costs incurred in
connection therewith plus interest thereon at the Interest Rate from
the due date until paid.
ARTICLE 13
ALTERATIONS
13.1 Landlord Obligations. Landlord shall perform such renovations to
the Common Area of the Building as are necessary to cause the third
floor bathrooms to comply with the requirements of the Americans
with Disabilities Act, and shall repair the elevators, all as
provided above in this Lease. Landlord has no obligation to perform
any demolition work or to make any other improvements to the
Building or the Premises or to deliver or install any materials in,
to or at the Premises. Other the Premises being broom clean, they
shall be delivered to the Tenant "as is".
13.2 Alterations. Tenant shall not make or permit any Alterations
without prior written consent of Landlord, which shall not
unreasonably be withheld or delayed. In the event Landlord fails to
respond in writing within fifteen (15) business days after Tenant
submits its plans for any Alterations, then such plans shall be
deemed to have been approved by Landlord. 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 material men'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, material men and laborers participating in the
Alterations, (ii) prior reasonable approval of the plans and
specifications and Tenant's contractor(s) with respect to the
Alterations, (iii) supervision of the Alterations by Landlord's
representative at Tenant's expense and (iv) delivery to Landlord of
payment and performance bonds naming Landlord and Mortgagee as
obliges. The Alterations shall conform to the requirements of
Landlord's and Tenant's insurers and of all Legal Requirements,
shall be performed in accordance with the terms and provisions of
this Lease in a good and workmanlike manner befitting a comparable
first class office building and shall not adversely affect the
value, utility or character of the Premises. If the Alterations are
not performed as herein required, Landlord shall have the right, to
halt any further Alterations, and/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, a;; Alterations and fixtures, whether temporary
or permanent in character, made in or upon 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
the Tenant. Notwithstanding the foregoing, if any mechanics or
material men'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, or
the filing of any bond required by law to affect a discharge. If
Tenant shall fail to discharge any such lien, Landlord may (but
shall not be obligated to) discharge the same, the cost of which,
together with attorney's fees and court costs incurred by Landlord,
shall be paid by Tenant within ten (10) days of demand by Landlord.
Such discharge by Landlord shall not be deemed to waive or release
the default of Tenant in not discharging the same. Neither
Landlord's consent to the Alterations nor anything contained in this
Lease shall be deemed to be the agreement or consent of Landlord's
interest in the Premises, the Building or the Land to any mechanic's
or material men's lien which may be filed in respect of the
Alterations.
13.3 Removal of Alterations. All or any part of the Alterations
(including, without limitation, wall-to-wall carpet and wiring),
whether made with or without the consent of Landlord, shall, at the
election of the Landlord, to be made at such time as Landlord
determines in its sole discretion, either be removed by Tenant at
its expense before, or if the election is made following a
termination of the Lease, immediately
following, the expiration of the Term or shall remain upon the
Premises and be surrendered therewith at the Expiration Date or
earlier termination of this Lease as the property off Landlord
without disturbance, molestation or injury. If Landlord requires the
removal of all or part of the Alterations, Tenant, at its expense,
shall repair any damage to the Premises or the Building caused by
such removal. If Tenant fails to remove Alterations that it is
required to remove pursuant to Landlord's election, then Landlord
may (but shall not be obligated to) remove the same and the cost of
such removal and repair of any damage caused by the same, together
with any and all damages which Landlord may suffer and sustain by
reason of the failure of Tenant to remove the same, shall be charged
to designate such items as it requests permission to remove at the
expiration of the Lease, which items Landlord shall approve or
disapprove for such removal by Tenant in conjunction with an
approval of the plan. All decisions required or permitted to be made
by Landlord in this Section 13.3 shall be made in the Landlord's
reasonable discretion (which discretion may take into account such
matters as the complexity, difficulty or damage to the Building
resulting from removal, among other matters deemed pertinent by
Landlord). Notwithstanding anything contained herein to the
contrary, Landlord shall not require the removal by Tenant of any
separate parts of Alterations which constitute Building Standard
items unless such items are installed in other Alterations which
themselves the Landlord has reasonably decided shall be removed.
13.4 Landlord Alterations. Landlord shall have no obligation the make
any Alterations in or to the Premises, the Building, the Common Area
or the Land, except as specifically provided in this Lease. Landlord
hereby reserves the right, from time to time, to make Alterations to
the Building or the land, 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 deemed 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, provided that such Alterations, unless required by
a Legal Requirement related to Tenant's use of the Premises, shall
not unreasonably alter the configuration of the Premises.
ARTICLE 14
SIGNS
14.1 General Prohibition. 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 of the inside
(including, without limitation, the windows) of the Building or the
Premises, except as provided in this Article 14. If any prohibited
sign, advertisement or notice is nevertheless exhibited by Tenant,
Landlord shall have the right to remove the same, and Tenant shall
pay any all expenses incurred by Landlord in such removal, together
with interest thereon at the Interest Rate, upon demand. Landlord
shall have the right to prohibit any sign, advertisement, notice or
statement to the public by Tenant, which, in Landlord's sole
opinion, tends to impair the reputation of the Building as a Class A
building.
14.2 Indoor Signs. Inside the Building, Landlord shall provide one
building standard office lobby directory sign for use for the
identification and suite number of all Tenants. Tenant and the
location of the Premises shall be identified thereon, at Landlord's
expense. Landlord also shall provide on (1) building standard suite
entry sign, at Landlord's expense.
14.3 Exterior Signage. Landlord shall at Tenant's sole expense, place a
tenant identification sign on the Building monument sign (together
with, at Landlord's sole election, other tenants in the Building) in
accordance with all applicable covenants,
restrictions, laws and governmental regulations. The cost of
construction, maintenance, and repair of any exterior signage that
is used by more than one Building Tenant shall be an Operating
Expense; any exterior signage that is used solely by Tenant, if any
such signage exists, shall be deemed to be a part of the Tenant's
improvements for which Tenant is solely responsible as provided in
Sections 12.2 through 12.4. Any other permitted signs shall be
installed and maintained by Landlord at Tenant's sole expense.
Notwithstanding the foregoing, so long as no Event of Default has
occurred and is then continuing, and Tenant has not assigned the
Lease nor sublet more than twenty-five percent (25%) of the total
number of gross rentable square feet contained in the original
Premises, Tenant shall have the non-exclusive right, at Tenant's
expense, to affix to and retain, on the front portion of the
Building, on the top level of pre-cast, a single sign bearing
Tenant's then current corporate logo. It is the intent of Landlord
and Tenant that the sign be sufficiently large and prominently
placed so as to make Tenant's occupancy of the Building reasonably
visible and identifiable to vehicular and pedestrian traffic, while
still permitting the possibility of Landlord's later affixing or
permitting a similarly sized sign for a second floor tenant. The
size, color, material, location and placement of the sign must be
reasonably acceptable to Landlord. Tenant's rights under this
Section 14.3 shall not be assignable by Tenant, except to wholly
owned subsidiary. Tenant shall procure all necessary signage permits
at Tenant's sole expense and Tenant shall pay for the sign without
the use if any allowance from Landlord. Tenant shall, at Tenant's
expense, remove the sign at the expiration or earlier termination of
Tenant's rights under the Lease or this Exhibit and Tenant shall
repair, at Tenant's expense, any damage caused to the Building by
such removal.
ARTICLE 15
TENANT'S EQUIPMENT AND PROPERTY
15.1 Moving Tenant's Property. Any and all damage or injury to the
Premises or the Building caused by moving the property of Tenant
into or out of the Premises, or due to the same being on the
Premises, shall be repaired by Landlord, at the expense of Tenant.
Tenant shall promptly remove from the Common Area any of Tenant's
furniture, equipment or other property there deposited.
15.2 Installing and Operating Tenant's Equipment. Without first
obtaining the written consent of Landlord, which shall not
unreasonably be withheld or delayed, Tenant shall not install or
operate in the Premises (i) any electrically operated equipment or
other machinery, other than standard office equipment that does not
require wiring, cooling, or other service in excess of Building
Standards, (ii) any equipment of any kind or nature whatsoever which
will require any changes, replacements or additions to, or changes
in the use of, any water, heating, plumbing, air conditioning or
electrical system of the Premises or the Building, or (iii) any
equipment which causes the floor load to exceed at any place the
load limits set by Landlord for the Building. Landlord's consent to
such installation or operation may be conditioned upon the payment
by Tenant of additional compensation for any excess consumption of
utilities and any additional power, wiring, cooling or other service
(as determined in the sole discretion of Landlord) that may result
from such equipment. Machines and equipment which cause noise,
interfering electrical or electronic transmissions or vibrations
that may be transmitted to the structure of the Building or to any
space therein so as to be objectionable to Landlord or any other
Building tenant shall, if approved by Landlord, be installed and
maintained by Tenant, at its expense, with shielding, on vibration
eliminators, or in with such other devices that are sufficient in
Landlord's discretion to eliminate such noise, transmissions and/or
vibration.
ARTICLE 16
RIGHT OF ENTRY
Tenant shall permit Landlord or its Agents and contractors, at any
reasonable times and with reasonable oral or written notice (except that
the time and notice requirements may be waived in the event of an
emergency), to enter the Premises, without charge therefore to Landlord
and without diminution of Rent, (i) to examine, inspect and protect the
Premise and the Building, (ii) to make such alterations and repairs or
perform such maintenance which in the sole judgment of Landlord may be
deemed necessary or desirable, (iii) to exhibit the same to prospective
tenants during the last Lease Year of the Term and to erect on the
Premises a suitable sign indicating the Premises are available. Landlord
shall use reasonable efforts to minimize any disruption to Tenant's use
of the Premises in exercising its rights hereunder.
ARTICLE 17
INSURANCE
17.1 Insurance Rating. Tenant shall not conduct or permit any activity,
or place any equipment or material, in or about the Premises, the
Building or the Common Area which will increase the rate of fire or
other insurance on the Building or insurance benefiting any other tenant
of the Building; and if any increase in the rate of insurance is stated
by any insurance company or by the applicable insurance rating bureau to
be due to any activity, equipment or material of Tenant in or about the
Premises, the Building or the Common Area, such statement shall be
conclusive evidence that the increase in such rate is due to the same
and, as a result thereof, Tenant shall pay such increase to Landlord
upon demand.
17.2 Liability Insurance. (a) Tenant, at Tenant's sole cost and expense,
shall obtain and maintain in effect throughout the Term a policy of
Commercial General Liability Insurance (ISO form or equivalent) naming
Landlord, the Mortgagees (if any) and any property management agent as
additional insureds ("Additional Insureds"), protecting Landlord, Tenant
and, if applicable, the Additional Insureds against liability for bodily
injury, death and property damage occurring upon or in the Leased
Premises, with such policy to afford protection to the limit of not less
than $2,000,000 with respect to the bodily injury or death or damage to
property arising from any on occurrence and $2,000,000 from the
aggregate of all occurrences within each policy year, which policy(s)
also shall contain deductible amounts, if any, acceptable to Landlord in
its reasonable discretion. If such policy also covers locations other
than the Leased Premises, the policy shall include a provision to the
effect that the aggregate limit of $2,000,000 shall apply separately at
the Leased Premises and that the insurer will provide notice to Landlord
if the aggregate is reduced either by payment of claims or the
establishment of reserves for claims if the payments or reserves exceed
$250,000. If the aggregate limit of $2,000,000 is reduced by the payment
of a claim or the establishment of a reserve, Tenant agrees to take
immediate steps to have the aggregate limit restored by endorsement to
the existing policy or the purchase of an additional insurance policy
which complies with this subsection.
(b) Landlord, at Landlord's sole cost and expense, shall maintain
during the Term, fire, extended coverage, malicious mischief and
vandalism insurance on the Building in an amount of not less than the
full replacement value of the Building, including improvements therein,
and will maintain commercial general or umbrella liability insurance in
an amount of not less then $5,000,000 combined single limit for bodily
injury, property damage and personal liability. Tenant shall have no
direct or third party interest in such insurance.
17.3 Insurance for Personal Property. Tenant shall, at its sole cost and
expense, procure and maintain throughout the Term a property
insurance policy (written on an "All Risk" basis) insuring all of
Tenant's personal property, including but not limited to equipment,
furniture, fixtures, furnishings and leasehold improvement which are
the
responsibility of Tenant for not less than the full replacement cost
of said property. All proceeds of such insurance shall be used to
repair or replace Tenant's property.
17.4 Contractual Liability Insurance. Tenant agrees to keep and maintain
as part of the coverage of its policy(ies) of liability insurance
contractual liability coverage or a contractual liability
endorsement covering Tenant's liability to Landlord for bodily
injury or damage to property of others, in the same limits required
by subsection 17.2
17.5 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 approved
by Landlord in its reasonable discretion. Such insurance (i) shall
contain an endorsement that such policy shall remain in full force
and effect notwithstanding that the insured has released its right
of action against any party before the occurrence of a loss; (ii)
shall name Landlord, Landlord's property management agent, Tenant
and at Landlord's request, any Mortgagee(s), as the 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 to Landlord and, at Landlord's
request, any Mortgagee(s). On or before the Commencement Date and,
thereafter, not less than thirty (30) days before the expiration
date of each insurance policy, an original of the policy (including
any renewal or replacement policy) or a certified copy thereof,
together with evidence satisfactory to Landlord of the payment of
all premiums for such policy, shall be delivered to Landlord and, at
Landlord's request, to any Mortgagee(s).
17.6 Prohibition Against Concurrent Insurance. All property insurance
shall be written as primary insurance. Tenant shall not take out
separate insurance concurrent in form or contributing in the event
of loss with any property damage insurance carried by Landlord for
the Building unless Landlord is included therein as an insured.
17.7 Waiver of Subrogation. Landlord and Tenant shall each include in
each of its property damage insurance policies, including Landlord's
policies of rent insurance and Tenant's policies of business
interruption insurance, if any, a waiver of the insurer's right of
subrogation against the other party and the officers, directors,
members, managers, agents and employees of, and the partners in, the
other party (and, in the case of Tenant's policies, against the
Additional Insureds and their respective officers, directors,
agents, employees and partners), or, if such waiver at any time
becomes unobtainable (i) an express agreement that such policy shall
not be invalidated if the insured waives or has waived before the
loss the right of recovery against any party responsible for an
insured casualty, or (ii) any other form of permission for the
release of such responsible party, provided such waiver, agreement
or permission is obtainable under normal commercial insurance
practice at the time, with or without additional charge. Landlord
and Tenant hereby acknowledge and agree that such waiver is
obtainable under normal commercial insurance practice on the date of
this Lease at no additional charge.
17.8 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 now 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 forth above for claims for damages or injury to any person or
property.
ARTICLE 18
LANDLORD SERVICES AND UTILITIES
18.1 Ordinary Services to the Premises. As long as no Event of Default
has occurred, and is continuing, and except during or as a result of
emergencies, Landlord shall furnish to the Premises throughout the
Term (i) electricity, heating and air conditioning that is
commercially reasonably appropriate for the Permitted Use between
7:00 a.m. and 8:00 p.m., Monday through Friday and between 7:00 a.m.
and 12:00 p.m. on Saturday, except for legal holidays observed by
the federal government, (ii) reasonable janitorial service, Monday
through Friday, (iii) regular trash removal from the Premises, (iv)
hot and cold water from points of supply, (v) the number of
restrooms as required by applicable zoning codes (provided, however,
that any change in restrooms subsequent to the Lease Date shall be
the sole responsibility of Tenant) , and (vi) elevator service, if
there is an elevator in the Building, provided that Landlord shall
have the right to remove such elevators from service as may be
required for moving, freight or for servicing or maintaining the
elevators or the Building. The cost of all services provided by
Landlord hereunder shall be included within Operating Expenses,
unless charged directly (and not as a part of Operating Expenses) to
Tenant or another tenant of the Building. Landlord agrees to furnish
landscaping and grounds maintenance and snow clearing for the Common
Area needed for access to the Building. The foregoing services shall
be furnished by Landlord and reimbursed by Tenant as part of
Operating Expenses; provided, however that Landlord shall be under
no responsibility or liability for failure or interruption in such
services caused by breakage, accident, strikes, repairs or for any
other cause or causes beyond the reasonable control of Landlord, nor
in any event for any indirect or consequential, incidental or
special damages; and failure or omission on the part of Landlord to
furnish such service shall not be construed as an eviction of
Tenant, nor work an abatement of Rent, nor render Landlord liable in
damages, nor release Tenant from prompt fulfillment of any of the
covenants under this Lease.
18.2 After-Hours Services to the Premises. Subject only to the need for
repair and maintenance as determined in the Landlord's sole
discretion, Landlord shall attempt in good faith to make heating,
ventilation, and air conditioning services available to Tenant
twenty-four (24) hours a day, seven (7) days a week, if and as
requested by Tenant with advance notice that Landlord deems to be
reasonable, and, if outside the operating periods set forth in
Section 18.1, at Tenant's sole cost and expense. If Tenant requires
or requests that the services to be furnished by Landlord (except
Building Standard electricity and elevator service) be provided
during periods in addition to the periods set forth in Section 18.1,
then Tenant shall obtain Landlord's consent thereto and, if such
consent is granted, shall pay upon demand Landlord's additional
charge for after-hours service which shall include the cost of
utility, service, labor costs, administrative costs and a cost for
depreciation of the equipment used to provide such after-hours
service. The cost for after-hours services is subject to change from
time to time based upon Landlord's fluctuating costs, but shall be
set by Landlord in its sole discretion and currently is $45 per
hour.
18.3 Landlord's Right to Meter Tenant's Electrical Usage. Tenant agrees
that its use of electricity in the Premises shall not exceed the
capacity of existing wires, circuits, risers conduits and other
electrical equipment, or any limits from time to tome established
under applicable governmental regulations. Landlord may review
Tenant's electricity consumption from time to time during the Term.
If, at any time or from time to time, in Landlord's reasonable
judgment, Landlord believes that Tenant's consumption of electricity
at the Premises exceeds by more than eight percent (8%) (determined
over at least a sixty (60) day period and on a per square foot
basis) the average electricity consumption for other tenants in the
Building, Landlord shall have the right to install, at Tenant's
expense, a separate meter for the
premises. Landlord will then read the meter and xxxx Tenant directly
each month for such excess electricity consumption, if any. Tenant
shall pay Landlord for such excess electricity consumption as
Additional Rent within ten (10) business days after Landlord
provides the xxxx to Tenant.
ARTICLE 19
LIABILITY OF LANDLORD
19.1 No Liability. Landlord and its Agents shall not be liable to Tenant
or its Agents for, and Tenant, for itself and its Agents, does
hereby release Landlord and its Agents from liability for, any
damage, compensation or claim arising from (i) the necessity or
repairing or failure to repair any portion of the Premises or the
Building or the Common Area or any structural defects thereto (but
no waiver or release is provided hereby for any obligations of
Landlord under this Lease to make repairs, except as to
consequential, incidental and special damages that may relate in any
way thereto), (ii) any interruption in the use of the Premises or
the Common Area for any reason including any interruption or
suspension of utility service, except as otherwise expressly set
forth in this Lease, (iii) fire or other casualty or personal or
property injury, damage or loss, (iv) the termination of this Lease
in accordance with the terms and provisions hereof, (v) robbery,
assault or theft, or, (vi) any leakage in the premises or the
Building from water, rain, snow or other cause whatsoever; provided,
however, that such releases shall not apply in the event that both
(1) Landlord or its Agents are found by a court of competent
jurisdiction to have proximately caused the losses otherwise
released hereby through their gross negligence or willful
misconduct, and (2) neither Tenant, any assignee or sublease of
Tenant (in whole or in part), any Agent nor any invitee or guest of
Tenant (or its assignees or sublesees) are found by a court of
competent jurisdiction to have been comparatively (if applicable) or
contributorily negligent or to have assumed the risk of such damage
or loss, but provided further, that this Section 19.1 shall not be
deemed to provide a basis for recovery for any action or omission
that does not constitute a material breach of this Lease. No such
occurrence shall give rise to diminution or abatement of Rent or
constructive eviction. Any goods, automobiles, property or personal
effects stored or placed by Tenant or its Agents in or about the
Premises, the Building, the Land or the Common Area shall be at the
sole risk of Tenant, and Landlord and its Agents shall not in any
manner be held responsible therefore. Except to the extent expressly
prohibited by law, Tenant hereby waives any claim it might have
against Landlord or its Agents for any consequential, incidental or
special damages sustained by Tenant arising out of the loss or
damage to any person or property of Tenant.
19.2 Indemnity. Tenant shall indemnify and hold Landlord and its Agents
harmless from and against any and all damage, claim, liability, cost
or expense (including, without limitation, attorneys' and other
professionals' fees) of every kind and nature (including, without
limitation, those arising from any injury or damage to any person,
property or business) incurred by or claimed against Landlord or
it's Agents, directly or indirectly, as a result of, arising from or
in connection with Tenant's or its Agents use and occupancy of the
Premises, the Building or the Common Area, provided, however, that
such indemnification and hold harmless shall not apply in the event
that Landlord or its Agents proximately caused the losses otherwise
released hereby through gross negligence or willful misconduct. In
the event of this Section 19.3 but Landlord would not be released
from liability under the terms of Section 19.1, then Tenant shall
not be required to indemnify Landlord and hold it harmless for such
event.
19.3 No Personal Liability; Sale. Neither Landlord nor its agents,
whether disclosed or undisclosed, shall have any personal liability
under any provision of this Lease. In
the event of a judgment in favor of Tenant which remains unpaid,
Tenant's rights of redress, execution and levy shall be limited to
the equity of Landlord, in the Building and Land as described in
Article1 hereof. In the event that the original landlord hereunder,
or any successor owner of the Building, shall sell or convey the
Building, all liabilities and obligations on the part of the
original Landlord, or such successor owner, under this Lease
occurring thereafter shall terminate as of the day of such sale, and
thereupon all such liabilities and obligations shall be binding on
the new owner. Tenant agrees to attorn to such new owner. Any
successor to Landlord's interest shall not be bound by (i) any
payment of Basic Rent or Additional Rent for more than one (1) month
in advance, except for the payment of the first installment of First
Year Basic Rent or (ii) as to any Mortgagee or any purchaser at
foreclosure, any amendment or modification of this Lease made
without notice to the Mortgagee.
ARTICLE 20
RULES AND REGULATIONS
Tenant and its Agents shall at all times abide and observe the Rules
and Regulations and any amendments thereto that may be promulgated from
time to time by Landlord for the operation and maintenance of the
Building, the Land and the Common Area and Rules and Regulations shall
be deemed to be covenants of the Lease to be performed and/or observes
by Tenant. Nothing contained in this Lease shall be construed to impose
upon the Landlord any duty or obligation to enforce the Rules and
Regulations, or the terms or provisions contained in any other lease,
against any other tenant of the Building. Landlord shall not be liable
to Tenant for any violation by any party of the Rules and Regulations or
the terms of any other Building lease. If there is any inconsistency
between this Lease and the Rules and Regulations, this Lease shall
govern. Landlord reserves the right to amend and modify the Rules and
Regulations as it deems necessary.
ARTICLE 21
DAMAGE; CONDEMANTION
21.1 Damage to the Premises. If the Premises shall be damages by fire or
other cause without the fault or negligence of Tenant or its Agents,
Landlord shall diligently and as soon as practicable after such
damage occurs (taking into account the time necessary to effect a
satisfactory settlement with any insurance company involved) repair
such damage at the expense of Landlord; provided, however, that
Landlord's obligation to repair such damage shall not exceed the
proceeds of insurance available to Landlord (reduced by any proceeds
retained pursuant to the rights of Mortgagee) so long as Landlord
maintains the insurance policies required to be maintained by
Landlord under this Lease. Notwithstanding the foregoing, if the
Premises or the Building are damaged by fire or other cause to such
an extent that, in Landlord's sole judgment, the damage cannot be
substantially repaired within one hundred twenty (120) days after
the date of such damage, or if 50% or more of the Premises are
damages 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. 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 twenty 120) days from
the date of such damage (such one hundred twenty (120) 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)., Tenant, within thirty (30) days
from the expiration of such one hundred twenty (120) day period (as
the same may be extended), may terminate this Lease by notice to
Landlord. During the period that Tenant is deprived of the use of
the damaged portion of the Premises, and provided such damage is not
the consequence of the fault or negligence of the Tenant or its
Agents, Basic Rent and Tenant's Proportionate Share 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. All injury as damage to the premises or the
Building resulting from the fault or negligence of Tenant or its
Agents shall be repaired by Tenant, at Tenant's expense, and Rent
shall not xxxxx. If Tenant shall fail to do so or if Landlord shall
so elect, Landlord shall have the right to make such repairs, and
any expense so incurred by Landlord, together with interest thereon
at the Interest Rate, shall be paid by Tenant upon demand.
Notwithstanding anything herein to the contrary, Landlord shall not
be required to rebuild, replace or repair any nonstandard tenant
improvements, tenant extras or Alterations or any personal property
of Tenant.
21.2 Landlord Released from Liability. Tenant, to the extent that
insurance required to be carried by Tenant under Article 17 is
available, and whether or not such insurance is in force and
collectible, hereby waives (and agrees to cause all other occupants
of the Premises to execute and deliver to Landlord instruments
waiving) any right of recovery against Landlord, the Additional
Insureds and any of their respective officers, directors, agents,
employees, partners, contractors or invitees, for any loss or damage
to Alterations or Tenant's Personal Property caused by fire or other
insured perils of the type that, or if no such applicable insurance
is then in effect or enforceable, would have been, insured against
by the policy of insurance required by Article 17.
21.3 Condemnation. If the whole or a Substantial Part of the Premises
shall be taken or condemned, or made unusable for the Permitted Use,
by any governmental or quasi-public use or purpose (including,
without limitation, sale under threat of such taking), then the Term
shall cease and terminate as of the sate when title vests in such
governmental or quasi-governmental authority, and Rent shall be
prorated to the date when title vests in such governmental or
quasi-governmental authority. If less then 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), Basic Rent and Tenant's Proportionate Share shall be
reduced by the ratio that the portion so taken bears to the rentable
square footage of the Premises before such taking, effective as of
the date when title vests in such governmental or quasi-governmental
authority, and this Lease shall otherwise continue in full force and
effect. Tenant shall have no claim against Landlord (or otherwise)
as a result of such taking, ad Tenant hereby agrees to make no claim
against the condemning authority for any portion of the amount that
may be awarded as compensation or damages as a result of such
taking; provided, however, that Tenant may, to the extent allowed by
law, claim an award for moving expenses and for the taking of any of
tenant's property (other than its leasehold interest in the
Premises) which does not, under the terms of this Lease, become the
property of Landlord at the termination hereof, as long as such
claim is separate and distinct from any claim of Landlord and does
not diminish Landlord's award. Tenant hereby assigns to Landlord any
right and interest it may have in any award for its leasehold
interest in the Premises.
ARTICLE 22
DEFAULT
22.1 Events of Default. Each of the following shall constitute an Event
of Default: (i) Tenant fails to pay Rent within ten (10) days after
notice from Landlord; provided that no such notice shall be required
if at least two such notices shall have been given during the same
Lease Year; (ii) Tenant fails to observe or perform any other term,
condition or covenant herein binding upon or obligating Tenant
within thirty (30) days after notice from
Landlord, (iii) Tenant abandons the Premises; (iv) Tenant or any
Guarantor makes or consents to a general assignment for the benefit
of creditors or a common law composition of creditors, or a receiver
of the Premises for all or substantially all of Tenant's or
Guarantor's asset is appointed, or (v) Tenant or Guarantor files a
voluntary petition in any bankruptcy or insolvency proceeding, or an
involuntary petition in any bankruptcy or insolvency proceeding is
file 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, proceed pursuant to any or all of the
following:
(i) Terminate this Lease and Tenant's right of possession of the
Premises, and recover all damages to which Landlord's expenses of
reletting (including, without limitation, rental concessions to new
tenants, repairs, alterations, reasonable legal fees and brokerage
commissions). If Landlord elects to terminate this Lease, every
obligation of the parties shall cease as of the date of such
termination, except that Tenant shall remain liable for payment of
rent and performance of all other terms and conditions of this lease
to the date of termination.
(ii) Terminates 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 in Landlord's sole
discretion. For purposes of such reletting, Landlord is authorized
to redecorate, repair, alter and improve the Premises; tenant shall
remain obligated to pay rent to Landlord as provided in this lease.
If and when the Premises are relet and if a sufficient sum is not
realized from such reletting after payment of all Landlord's
expenses of reletting (including, without limitation, reasonable
rental concessions to new tenants, repairs, alterations, reasonable
legal fees and brokerage commissions) to satisfy the payment of rent
due under this lease for any month, Tenant shall pay Landlord any
such deficiency upon demand. Tenant agrees that Landlord may file
suit or recovery of any sums due Landlord under this Section from
time to time and that such a suit or recovery of any amount due
Landlord shall not be any defense to any subsequent action brought
for any amount not previously reduced to judgment in favor of
Landlord.
(iii) Terminate this Lease and Tenant's right of possession of the
Premises, and recover from Tenant the net present value of the Rent
due from date of termination until the Expiration date, discounted
at the lesser of the interest rate as of the date of termination or
seven percent (7%) per annum.
(iv) Re-enter and repossess the Premises and remove all persons and
effects therefrom, by summary proceeding, ejectment or other legal
action or by using such force as may be necessary. Landlord shall
have no liability by reason of any such re-entry, repossession or
removal.
(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 fir, 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 under this Lease or any guaranty
thereof.
22.4 No Waiver. If Landlord shall institute proceedings against tenant
and a compromise or settlement thereof shall be made, the same shall
not constitute a waiver of any hereunder. No waiver by Landlord of
any branch 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 accompanying a check
for the payment without prejudice to Landlord's right to recover the
balance of such Rent or to pursue any other remedy provided in this
Lease. No re-entry by Landlord, and no acceptance by Landlord of
keys from Tenant, shall be considered an acceptance of a surrender
of the Lease.
22.5 Right of Landlord to Cure Tenant's Default. If any Event of Default
shall occur, then after giving written notice to Tenant, 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; provided however that no such notice shall be required if
notice already was given by or on behalf of Landlord under another
section or subsection of this Lease. Such payment shall be due and
payable upon demand; however, the making of such payment or the
taking of such action by Landlord shall not be deemed to cure the
Event of Default or to stop Landlord from the pursuit of any remedy
to which Landlord would otherwise be entitled. Any such payment made
by Landlord on Tenant's behalf shall bear interest until paid at the
Interest Rate.
22.6 Late Payment; Interest. Tenant shall pay Landlord a late charge of
the greater of $100 or five percent (5%) of the amount of overdue
rent for each rent payment that is not made within five (5) days
after it's due under terms of this Lease. In addition, all such late
rent payments shall bear interest, at the Interest Rate; from the
date such rent became due and payable to the date of payment thereof
by Tenant. Such late charge and interest shall be due and overdue
Rent, in whole or in part, shall not constitute a waiver of this
paragraph or of any other provision of this lease.
22.7 Landlord Default. If Landlord shall fail to keep or perform any of
its covenants under this Lease, then Tenant may (but shall not be
obligated to do so), in addition to any other remedies available or
provided by law, upon the continuance of such failure on Landlord's
part for thirty (30) days after notice from Tenant specifying the
failure (or, in the case of any such failure which cannot with due
diligence be cured within thirty (30) days, within such additional
period, if any, as may be reasonably required by Landlord to cure
such failure with due diligence), and without waiving or releasing
Landlord from any obligation, make such payment or perform such
obligation. In the event of such payment or performance by Tenant,
all sums so paid by Tenant and all necessary and related costs and
expenses, including reasonable attorney's fees paid to independent
legal counsel, incurred by Tenant in making such payment of
performing such obligation, shall be paid by Landlord to Tenant
within thirty (30) days after Tenant's written demand, and if not so
paid by Landlord, Tenant shall have the right to pursue any legal
remedies available to it to collect payment, subject to the
limitations elsewhere provided in this Lease, but shall not be
entitled to offset such payment against rent thereafter payable
under this Lease. No inaction by Tenant in the event of any failure
of Landlord to keep or perform any of its covenants or conditions
under this Lease shall operate as a waiver by Tenant of any breach
or default of any terms of this Lease, then notwithstanding the
rights of tenant specified herein or otherwise provided or permitted
at law or in equity, tenant shall have no right to limited to
pursuing its claims for damages as provided above.
ARTICLE 23
MORTGAGES
23.1 Subordination; Nondisturbance. This Lease is and shall be and
remain, as applicable, subject and subordinate to all ground or
underlying leases and to any 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 and deliver to Landlord within fifteen
(15) days after Landlord's request any instrument that does not
contradict the terms of this Lease that Landlord or any Mortgage may
request confirming such subordination. If tenant fails to timely
execute and deliver any such instrument within said time period,
then tenant shall pay to Landlord as additional rent, within five
(5) days after demand therefore, (i) the sum of $100 for each day
beyond the tenth day after request for such instrument until the
instrument is duly executed by tenant and delivered to Landlord, and
(ii) all amounts actually and reasonably incurred by Landlord in
connection with such delay, including, without limitation,
attorney's fees. Notwithstanding the foregoing, before any
foreclosure sale under a Mortgage, or any deed in lieu thereof, the
Mortgage shall have the right to subordinate the Mortgage to this
Lease, and, in the event of a foreclosure, or any deed in lieu
thereof, 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, or any deed in lieu
thereof, execute, acknowledge and deliver any installment that does
not contradict the terms of this Lease that has for its purposes and
effect the subordination of the lien of any Mortgagee to this Lease
or Tenant's attornment to such Purchaser; provided however, that
said Mortgagee or purchaser recognizes this Lease and tenant's
rights, so long as it is not in default hereunder, to possess the
Premises, agrees to perform and assume the obligations and
liabilities of the Landlord hereunder and provides to tenant an
acceptable nondisturbance agreement as set forth herein.
Notwithstanding the above provisions: (a) the applicable Mortgagee
or successor-in-interest to Landlord shall execute and deliver to
tenant, as promptly as commercially reasonable after tenant's
request, an executed non-disturbance agreement in a recordable form
acceptable to Mortgagee, agreeing that such Mortgagee, purchaser in
a foreclosure (or by deed in lieu thereof) or other
successor-in-interest shall recognize tenant's (and its permitted
designees', assignees', and sublesees') rights under this Lease; and
(b) in addition, as promptly as commercially possible following
tenant's request, Landlord shall use disturbance agreement
recognizing Tenant's (and its designees', assignees', and
sublesees') rights under this Lease from each Mortgagee now or at
any time hereafter encumbering the Building.
23.2 Mortgagee Protection. Tenant agrees, if requested by Landlord or
any Mortgagee, to give any Mortgagee by certified mail, return
receipt requested, a copy of any notice of default served upon
Landlord, provided that before such notice tenant has been notified
in writing of the address of such mortgagee. Tenant further agrees
that if Landlord shall have failed to cure such default within time
provided for in this Lease, then Mortgagee shall have an additional
thirty (30) days within which to cure such default; provided,
however, that if such default cannot be reasonably cured within that
time, then such Mortgagee shall have additional time as may be
necessary to cure such default so long as Mortgagee has commenced
and is diligently pursuing the remedies necessary to cure such
default (including, without limitation, the commencement of
foreclosure proceedings, if necessary), in which event this Lease
shall not be terminated or rent abated while such remedies are being
so diligently pursued. In the event of the sale of the Land or
Building, by foreclosure or deed in lieu thereof, the Mortgagee or
purchaser at such sale shall be responsible for the return of the
Security deposit only to the extent that such Mortgagee or purchaser
actually received the Security Deposit.
23.3 Modification Due to Financing. If, in connection with obtaining
construction or permanent financing for the Premises, the Building
or the Land, any lender (or mortgagee) shall request reasonable
modifications of this Lease as a condition to such financing. Tenant
shall promptly execute a modification of this Lease, provided such
modifications do not materially increase the financial obligations
of Tenant hereunder or materially adversely affect the tenant and
any Guarantor shall each, prior to execution and throughout the
term, upon request from time to time, provide such financial
information about itself to Landlord or Mortgagee as reasonably may
be requested.
ARTICLE 24
SURRENDOR; HOLDING OVER
24.1 Surrender of the Premises. Tenant shall peaceably surrender the
Premises to Landlord on the expiration Date earlier termination of
this Lease, in broom-clean condition and in as good condition as
when Tenant took possession, including, without limitation, the
repair of any damage to the Premises caused by the removal of any
tenant's personal property or trade fixtures from the Premises,
except for reasonable wear and tear and loss by fire or other
casualty not caused by tenant or it's agents. Any of tenant's
personal property left on or in the Premises, the Building, the Land
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 Basic rent shall be 150% of the monthly Basic
rent in effect during the last month of the Term. Notwithstanding
the foregoing, if tenant shall hold over after the Expiration Date
or earlier termination of this Lease, and Landlord shall desire to
regain possession of the process, or by any legal process Landlord
against all liabilities and damages sustained by Landlord by reason
of such retention of possession.
ARTICLE 25
QUIET ENJOYMENT
Landlord covenants that if tenant shall pay rent and perform all of
the terms and conditions of this Lease to be performed by tenant, tenant
shall during the Term peaceably and quietly occupy and enjoy possession
of the Premises without molestation or hindrance by Landlord or any
party claiming through or under Landlord, subject to the provisions of
this Lease and any Mortgagee to which this Lease is subordinate and
Legal requirements.
ARTICLE 26
TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS
26.1 Definition. As used in this Lease, the term "Hazardous Material"
means any flammable 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 substance" 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 adverse effects on the environmental or the
health and safety of persons.
26.2 General Prohibition. Tenant has reviewed the Phase 1 environmental
assessment on the Land and Building, and acknowledgement that it
contains no indication of the existence of any matters of
environmental concern. Tenant shall not cause or permit any unlawful
amount of 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, sublessees or assignees, with sole
exception that small quantities of customary office supplies that
otherwise would be prohibited by this sentence may be brought to,
stored and used in, the Premises, for their normal intended
purposes. 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, court costs
and amounts paid in settlement of any claims or 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 shall not cause or, to the
extent it is reasonably within Landlord's knowledge and control,
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 Landlord or its Agents (specifically excluding Landlord's
tenants or their sublessees or assigns), with the sole exception
that small quantities of customary office supplies that otherwise
would be prohibited by this sentence may be brought to, stored and
used in, the Premises, the building or the Land for their normal
intended purposes.
26.3 Notice. In the event that Hazardous Materials are discovered upon,
in, or under the Premises, the Building or the Land, 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 or related to the use or occupancy of the
Premises by the Tenant or its agents, affiliates, sublessees or
assignees but not those of its predecessors. Notwithstanding the
forgoing, tenant shall not take any remedial action in or about the
premises, the Building or the Land, without first notifying Landlord
of tenant's intention to do so and affording Landlord the
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, (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, the Premises, the Building or the Land relating to
damage, contribution, cost recovery, compensation, loss or injury
resulting from or claimed to result from any Hazardous Materials in,
on, under or about or removed from the Premises, the Building or the
Land, including any complaints, noticed, warnings, reports or
asserted violations in connection therewith. Tenant also shall
supply to Landlord as promptly as possible, and in any event within
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.
ARTICLE 27
MISCELLANEOUS
27.1 No Representations by Landlord. Tenant acknowledges that neither
Landlord nor its agents nor any broker has made any representation
or promise with respect to the Premises, the Building, the Land or
the common Area, except as herein expressly set forth, and no
rights,
privileges, easements or licenses are acquired by tenant except as
herein expressly set forth. Tenant, by taking possessions of the
Premises shall accept the Premises and the Building "AS IS," and
such taking of possessions shall be conclusive evidence that the
Premises and the Building are in good and satisfactory conditions at
the of such taking possessions.
27.2 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture or between
Landlord and tenant, or to create any other relationship between
Landlord and tenant other than that of landlord and tenant.
27.3 Brokers. Landlord recognizes Jefferson Commercial Real Estate as
the sole broker procuring this Lease and shall pay Broker a
commission therefor pursuant to separate agreements between Broker
and Landlord. All commissions owed to the Broker are to be paid by
the Landlord. Landlord and Tenant each represent and warrant to the
other that it has not employed any broker, agent or finder other
than Broker relating to this Lease. Landlord shall indemnify and
hold Tenant harmless, and Tenant shall indemnify and hold Landlord
harmless, including without limitation reasonable attorneys' fees,
experts' costs and court costs, from and against any claim for
brokerage or other commission arising from or out of any breach of
the representation and warranty of such party.
27.4 Estoppel Certificates. Tenant shall, without charge, at any time
and from time to time, within fifteen (15) days after request
thereof by Landlord, Mortgagee, any purchaser of the Land or
Building or any other interested person, execute, acknowledge and
deliver to such requesting party a written estoppel certificate
certifying as of the date of such estoppel certificate, the
following: (i) that this Lease is unmodified and in full force and
effect as modified and setting forth such modifications; (ii) that
the term has commenced (and setting forth the Commencement date and
Expiration Date); (iii) that Tenant is presently occupying the
Premises; (iv) the amounts of basic rent and additional rent
currently due and payable by Tenant; (v) that any alterations
required by the Lease to have been made by Landlord have been made
to satisfaction of Tenant; (vi) that there are no existing set-offs,
charges, liens, claims or defenses against the enforcement of any
right hereunder, including, without limitation, Basic rent or
Additional rent (or, if alleged, specifying the same in detail);
(vii) that no Basic rent (except the first installment thereof) has
been paid more than thirty (30) days in advance of its due date;
(viii) that Tenant has no knowledge of any then uncured default
Landlord of its obligations under this Lease (or, if Tenant has such
knowledge, specifying the same in detail); (ix) that tenant is not
in default; (x) that the address to which notices to Tenant should
be sent is as set forth in the Lease (or, if not specifying the
correct address); and (xi) any other substance attached hereto as
Exhibit D or, at Landlord's sole option, such other form and
substance as may be requested or required by a Mortgagee or
prospective purchaser or investor. The failure of Tenant to execute,
acknowledge and deliver such a certificate in accordance with this
Section 27.4 within the above-mentioned ten (10) days shall
constitute an acknowledgement by Tenant, which may be relied on by
any person who would be entitled to rely upon any such certificate,
that such certificate as submitted by Landlord to tenant is true and
correct; provided, however, that Landlord shall have no obligation
to accept such deemed acknowledgement as its sole remedy for
tenant's breach in failing to provide an estoppel certificate as
required herein. In ten (10) days after request by Landlord, tenant
shall deliver to Landlord audited financial statements of Tenant for
its most recently ended fiscal year and interim unaudited financial
statements for its most recently ended quarter.
27.5 WAIVER OF JURY TRIAL. TENANT AND LANDLORD EACH HEREBY WAIVES TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
LANDLORD AGAINST TENANT, OR BY TENANT AGAINST LANDLORD, WITH RESPECT
TO ANY MATTER WHATSOEVER ARISING OUT OF OR INA NY WAY CONNECTED WITH
THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER OR
TENANT'S USE OR OCCUPANCY OF THE PREMISES. IN THE EVENT LANDLORD
COMMENCES ANY PROCEEDINGS FOR NONPAYMENT OF RENT, TENANT SHALL NOT
INTERPOSE ANY COUNTERCLAIMS. THIS SHALL NOT,
HOWEVER, BE CONSTRUED AS A WAIVER OF EITHER PARTY'S RIGHT TO ASSERT
ANY PERMITTED CLAIMS IN ANY SEPERATE ACTION BROUGHT BY THE OTHER
PARTY.
27.6 Notices. All notices, requests or other communications required or
permitted hereunder shall be in writing, unless otherwise specified
in this Lease, and shall be given (i) by personal delivery, (ii) by
next day service of an express courier, or (iii) by certified or
registered mail, return receipt requested, postage prepaid; in each
such event such communications shall be addressed and sent, if to
Landlord to Landlord's Address specified in Section 1.14 or if to
Tenant to Tenant's Address specified in Section 1.15. Each such
communication shall be deemed to have been given as follows: as to
personally delivered items, on the date of personal delivery; as
certified or registered mail, on the third (3rd) business day after
such mailing. Landlord and Tenant may from time to time by written
notice to the other designate a different 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 by invalid or unenforceable, the remainder of
this Lease, or the application of such provision to persons or
circumstances other than those to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the full extent
permitted by law.
27.8 Gender and Number. All terms and works 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.
27.10 Entire Agreement. This Lease (which includes the Exhibits attached
hereto) contains and embodies the entire agreement of the parties
hereto, and no representations, inducements or agreements, oral or
otherwise, between the parties not contained in this Lease shall be
of any force or effect. This Lease (other than the Rules and
regulations, which may be changed from time to time as provided
herein) may not be modified, changed or terminated in whole or in
part in any manner other than by agreement in writing duly signed by
Landlord and Tenant.
27.11 Authority.
(i) If tenant signs as a corporation or limited entity, the
person executing this Lease on behalf of Tenant hereby
personally represents and warrants that Tenant is duly
formed and validly existing as such a corporation or entity,
in good standing, qualified to do business in the
Commonwealth of Virginia, that the corporation or limited
liability entity has full power and authority to enter into
the Lease and that the person signing is authorized to
execute this Lease on behalf of the corporation or limited
liability.
(ii) If tenant signs as a partnership, the person executing this
Lease on behalf of tenant hereby personally represents and
warrants that Tenant is duly formed, validly existing
partnership qualified to do business in the Commonwealth of
Virginia, that the partnership has full power and authority
to enter into this Lease, and that the person signing is
authorized to execute this Lease on behalf of the
partnership.
(iii) The person executing this Lease on behalf of Landlord
hereby represents and warrants that Landlord is duly formed,
validly existing limited liability company, qualified to do
business in the Commonwealth of Virginia, that
the company has full power and authority to enter into this
Lease, and that he or she is authorized to execute this
Lease on behalf of the Landlord.
27.12 Attorneys' Fees. If, as a result of any default of Landlord or
Tenant in its performance of any of the provisions of this Lease,
the other party uses the services of an attorney in order to secure
compliance with such provisions or recover damages therefor, or to
terminate this Lease or evict Tenant, the non-prevailing party shall
reimburse the prevailing party upon demand for any and all
reasonable attorneys' fees and expenses so incurred by the
prevailing party.
27.13 Interpretation. This Lease is governed by the laws of the
Commonwealth of Virginia.
27.14 Time of the Essence. Time is of the essence as to Tenant's
obligations contained in this Lease.
27.15 Force Majeure. Except for tenant's obligations to pay rent under
this Lease, neither Landlord or 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 arty arises from or
through acts of god, strikes, lockouts, labor difficulties,
explosions, sabotage, accidents, riots, civil commotions, acts of
war, results or any warfare or warlike conditions in this or any
foreign country, fire or casualty, legal requirements, energy
shortage or other causes beyond the reasonable control of the
non-performing party, unless such loss or damage results from the
willful misconduct or gross negligence of the non-prevailing party.
27.16 Headings. Captions and headings are for convenience of reference
only.
27.17 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 of 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 recording 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 recoding costs, fees and taxes, if
any, associated with such recordation.
27.18 Landlord Decisions. Unless a specific contrary standard is
otherwise expressly provided in this Lease, whenever any approval,
consent or other decision (a "Decision") is required or permitted to
be made by Landlord under this Lease, such Decision (i) shall not be
unreasonably delayed, and (ii) shall be made by Landlord in its sole
discretion.
27.19 Landlord's Compensation for Tenant Delays. If tenant fails or
refuses to execute and deliver instrument or certificate required to
be delivered by tenant hereunder (including, without limitation, any
instrument or certificate required under Article 23 or Section 27.4
hereof) within the time periods required herein, then Tenant shall
pay to Landlord as Additional rent any and all amounts actually and
reasonably incurred by Landlord in connection with such delay,
including, without limitation, attorneys' fees, carrying costs, and
penalties. Each payment of such Additional rent shall be paid within
ten (10) days after each written notice given by Landlord to Tenant
certifying Landlord's damages incurred as a result of such delay by
tenant; each such notice may be supplemented from time to time as
and if Landlord in it sole reasonable discretion determines that
additional damages were or have been incurred. Tenant acknowledges
that such notice(s) by Landlord shall be conclusive upon tenant, its
successors, and assigns, absent actual fraud by Landlord.
27.20 Effectiveness. The furnishing if the form of this Lease shall not
constitute an offer and this Lease shall become effective upon and
only upon its full execution by and delivery to each party hereto.
IN WITNESS WHEREOF, Landlord and tenant have executed this Lease under seal
as of the Lease Date.
LANDLORD:
ATTEST/WITNESS: WJG, LLC,
A Virginia limited liability company
By: (SEAL)
-------------------------
Name: Name:
----------------------- -----------------------
A.J. Gazaleno
Date: Date:
----------------------- -----------------------
09-11-2001
TENANT
ATTEST/WITNESS: ACCESS NATIONAL MORTGAGE
By: (SEAL)
-------------------------
Xxxxxxx X. Xxxxxx
Name: Name:
----------------------- -----------------------
Xxxxxxx Xxxxx Xxxxxxx X. Xxxxxx, President
Date: Date:
----------------------- -----------------------
09-10-2001 09-10-2001
EXHIBIT A-1
(Plan Showing Premises)
EXHIBIT A-2
(Plan Showing Land and Building)
EXHIBIT B
EXHIBIT B-1
INSURANCE REQUIREMENTS
The Tenant Contractor shall, throughout the duration of any contract or any
work authorized under purchase order, at its expense, carry and from time to
time renew Worker's Compensation Insurance, Public Liability Insurance in the
amounts of $1,000,000 to $5,000,000 (dollar amount to be reasonably determined
by Landlord depending upon the scope and nature of the work), single limit
coverage both Bodily Injury and Property Damage, which policy(s) also shall
contain deductible amounts, if any, acceptable to Landlord in its reasonable
discretion. An insurance certificate in the customary form, naming tenant,
Landlord and the Landlord's property management agent as additional insureds and
evidencing that premiums therefore have been paid, shall be delivered to
Landlord simultaneously with the execution of any contract and prior to
performing any work authorized under a purchase order and within fifteen (15)
days the renewal of such together with evidence satisfactory to Landlord of
payment of the premium. All certificates must contain a provision that if such
policies are canceled or changed during the periods of coverage as stated
therein, in such a manner as to affect this certificate, written notice will be
mailed to the Landlord by registered mail ten (10) days prior to such
cancellation or change.
EXHIBT C
to the Lease agreement between
WJG, LLC, as Landlord, and
Access National Mortgage as Tenant
Rules and Regulations
EXHIBIT D
Estoppel Certificate
Re: Suite_, 0000 Xxx Xxxxxxxxxx Xxxx, Xxxxxx, XX 00000 ("Premises")
The undersigned ("Tenant"), as tenant under a certain dated ______ , 200 ____ ,
("Lease") made with _____________ , a , ("Landlord") for the Premises described
above, hereby ratifies such Lease and certifies to you and your designees,
successors and assigns, and to ____________ Bank ("Lender") as follows:
1. (a) Name of Landlord:___________
(b) Name of Tenant:___________
(c) Date of Lease:___________
(d) Amendments or Modifications:___________
(e) Commencement Date and Expiration Date of current
Lease Term:___________
(f) Rentable Area:___________
(g) Remaining Renewal Options:___________
(h) Annual Base Rent $_____ for period_____through__
(i) Additional Rent currently payable:___________
(j) Operating Expense and Real Estate Taxes: proportionate share (_____% over
20___________base year ($___________))
(k) Remaining Expansion Rights:___________
(l) Security Deposit:___________
(m) Tenant pays for its electrical and janitorial services:
Yes__ No__
2. The Tenant has not been amended or modified (either orally or in
writing) except as specified in paragraph 1(d) and there are no other agreements
between Landlord and Tenant. A copy of the Lease and all amendments and
modifications thereof are attached as Exhibit A to this Certificate. The address
for notices to Tenant is as set forth below.
3. Tenant is in full and complete possession of the premises described in the
Lease (the "Premises), such possession having been delivered by the Landlord
under the Lease and accepted any the tenant as complying with the terms of the
Lease. Any alterations required by the Lease to have been made by Landlord have
been made to the satisfaction of Tenant.
4. All rent, charges or other payments due under the Lease have been paid
through , 200 , and there has been no repayment of rent or other obligation more
than one month in advance. No portion of the Premises is currently sublet or
assigned.
5. Neither party is in default under any of the terms, covenants and
conditions of the Lease, nor has any event occurred, which with the
passage of time or the giving of notice, or both would constitute a
default by either party under the Lease.
6. Tenant agrees that the Lease and the rights of Tenant thereunder shall
be and remain in all respects and for all purposes subject, subordinate
and junior in right and interest to the lien of the Deed of Trust (the
"Deed of Trust") held to or be placed by Lender and to the right and
interests of any holder of such Deed of Trust, whether of not the
indebtness secured by such Deed of Trust is now or hereafter
outstanding, as fully and with the same effect as if such Deed of Trust
had been duly executed, acknowledged, delivered and recorded by the
record owner of the property which is the subject of the Deed of trust
and of which the Premises is a part (the "Property") so as to constitute
a lien of record and the indebtedness secured by such Deed of Trust ha
been fully disbursed prior to the execution and delivery of the Lease.
7. Upon any foreclosure sale or conveyance in lieu thereof, or other suit
or proceeding under or pursuant to the Deed of Trust or consequent upon
any event of default thereunder, Tenant shall attorn to and recognize
the purchaser of the Property as its landlord under the Lease as if such
purchaser were the original landlord thereunder; provided, however, that
such purchaser requests such attornment and recognition and that such
purchaser shall in no way be liable or responsible for any alleged
default by the Landlord pertaining to any period prior to the time that
the purchaser acquires actual possession or control of the Property.
Address of Tenant: [TENANT]
-----------------
By:
----------------- ---------------------
Xxxxxxx X. Xxxxxx
Name:
-----------------
Xxxxxxx X. Xxxxxx
Title:
----------------
President
EXHIBIT E
Extension Option
Tenant shall have the right to extend the term of the Lease with respect to the
Premises then subject to this Lease; upon and subject to the following terms and
conditions:
1.Extension Term. Tenant may extend this Lease for one or, having exercised one,
two extension terms of five (5) years (each an "Extension Term;" collectively
the "Extension Term;" the original and any Extension Term(s) may be called a
"Term") by delivering Tenant's written notice of such extension to Landlord no
later than six (6) months prior to the expiration of the original Term or, as to
the second Extension Term, the expiration of the prior Term upon exercise of any
such extension option the "Expiration Date" of the term shall automatically
become the last day of such Extension Term.
2.Condition to Exercise. Tenant's failure to exercise an extension option prior
to the exercise deadline for notice described in the paragraph next above, for
any reason whatsoever, shall conclusively be deemed a waiver of such option.
Tenant's failure to exercise its right to the first extension option prior to
the exercise deadline for notice described in the paragraph next above, for any
reason whatsoever, shall conclusively be deemed a waiver of the first and
subsequent options. Except as expressly set forth in this Exhibit to the
contrary, if Tenant properly and timely exercises any extension option set forth
above, Tenant may not thereafter revoke such exercise. Tenant's right to
exercise any extension option is subject to the existence of the following
conditions at the time of Tenant's exercise of its option to extend: (i) this
Lease is in full force and effect; (ii) no Event of Default then exists under
this Lease and no condition exists which with notice or the passage of time, or
both, would constitute an Event of Default; and (iii) the tenant named herein
shall not have assigned or sublet its rights to an aggregate of more than twenty
five percent (25%) of the rentable area of the original Premises.
3. Conditions of Premises. Tenant shall take the Premises in "as is" condition
for the Extension term, and Landlord shall have no obligation to make any
improvements or alterations to the Premises.
4. Rent.
(a) Basic rent for the first year of each Extension Term shall be the Fair
Market Value Rate (hereinafter defined) multiplied by the number of square feet
of gross rentable area in the Premises as of the commencement date of the
Extension Term. Basic rent during the second and subsequent yeas during the
applicable Extension Term shall be increased as provided in Section 1.6 of the
Lease. In no event, however, shall the initial Basic Rent for an Extension Term
be less than the Basic Rent paid for the last year of the prior Term.
(b) For purposes hereof "Fair Market Value Rate: means the full service rte fair
market rental rate per square foot of rentable area that would be agreed upon
between a landlord and tenant entering into a new lease for comparable space as
to location, size, configuration and elevator exposure in a building of
comparable location, quality, age and t and reputation with a comparable
build-out and a comparable term, assuming the following: (1) the landlord and
tenant are typically motivated; (2) the landlord and tenant are informed and
well advised and each is acting in what it considers its own best interest; (3)
tenant improvement allowance, fee rent periods or any other special concessions
(for example, design fees, moving allowances, commissions, etc.) will not be
provided to Tenant except to the extent that such allowances or concessions are
reflected in the fair market renal rates then being quoted in which event the
Fair Market Value Rate shall be reduced by the economic equivalent of the
allowances or concessions not offered to Tenant; (4) the Premises are fit for
the Permitted Uses; and (5) in the event the Premises has been destroyed or
damaged by the fire or other casualty; the Premises has been fully restored.
Tenant shall also continue to pay Tenant's Proportionate Share of Operating
Expenses and other charges under this Lease pursuant to the terms of the Lease
unless the marketplace conditions at the time include such costs in the fair
market rental rate, in which event the
Fair Market Value rate shall be reduced to reflect the fact that Tenant's
Proportionate Share of Operating Expenses and other applicable charges under
this Lease are not included.
(c) Within fifteen (15) days after Landlord receives notice from Tenant that
Tenant is exercising an Extension Option, Landlord shall send written notice to
Tenant specifying the Fair Market Value rate as determined by Landlord and,
within fifteen (15) days after receipt of Landlord's notice, Tenant shall give
Landlord written notice of Tenant's acceptance or challenge of Landlord's
determination of the Fair Market Value Rate; provided, deemed not to have
accepted Landlord's determination of the Fair Market Value Rate, and Landlord
and Tenant shall endeavor to reach an agreement as to the Fair Market Value Rate
within thirty (30) days after the latter of the aforementioned fifteen (15) day
periods. Unless Landlord and Tenant agree in writing upon the Fair Market Value
Rate, Landlord and Tenant shall not be deemed to have agreed upon the Fair
Market Value Rate.
(d) If Landlord and Tenant are unable to agree upon the Fair Market Value Rate
within the aforementioned time period, Landlord and Tenant shall each select an
appraiser who shall each submit to the parties his or her determination of the
Fair Market Value Rate. Landlord and Tenant shall notify the other party of the
identity of the appraiser selected by the notifying party within ten (10) days
after the expiration of the aforementioned thirty (30) day period. Each
appraiser shall be a licensed real estate broker or an MAI-certified real estate
appraiser having a minimum of ten (10) years' experience in the Tyson's Corner,
Virginia office market. The appraisers shall be instructed to complete and
submit their written appraisal reports to the other party within thirty (30)
days after the expiration of the ten (10) day selection period. If the
determination of the Fair Market Value Rate submitted by the Landlord's
appraiser is less than the determination of the Fair Market Value Rate submitted
by the Tenant's appraiser, the Fair Market Value Rate shall be the average of
the two (2) determinations. If the determination of the Fair Market Value Rate
submitted by the Landlord's appraiser is greater than the determination of the
Fair Market Value Rate submitted by the Tenant's appraiser, the appraisers
shall, within ten (10) days, appoint a third appraiser with the above mentioned
qualifications who shall select either Landlord's appraisal or Tenant's
appraisal, whichever the third appraiser finds more accurately reflects the Fair
Market Value Rate. The third appraiser shall be instructed to make his or her
selection of the more accurate appraisal and notify Landlord and Tenant of such
selection within fifteen (15) days after such appraiser's appointment. The
foregoing notwithstanding, if the lower of the first two (2) appraisal amounts
is within five percent (5%) of the higher of the first two (2) appraisal
amounts, then Fair Market Value Rate shall be the average of the such two (2)
appraisal amounts and no third appraiser shall be used. Landlord and Tenant
shall each bear the costs of their respective appraisers. The expenses of a
third appraiser shall be borne one-half (1/2) by Landlord and one-half (1/2) by
Tenant.
(e) Any provision(s) of this Exhibit to the contrary notwithstanding, Landlord
shall not be required to accept Basic Rent for any year during an Extension
Term, as determined pursuant to Section 4(d) above, in an amount less than the
Basic Rent paid for the last year of the original Term.
(f) Additional Rent shall continue to be due and payable as provided in the
Lease.
5. No Abatement. Although rent abatement period(s) will be considered (if
applicable) in determining the Fair Market Value Rate pursuant to Section 4(b)
of this Exhibit, at no time during any Extension Term will Rent xxxxx under this
Lease.
6. Terms of Lease. Except as otherwise set forth in this Exhibit, Tenant's lease
of the Premises for any Extension Term shall be upon the same terms and
conditions as are applicable for the prior Term.
