Exhibit 10.13
THIS AGREEMENT OF LEASE (the "LEASE") made this 11th day of July 1997, by
and between ANNANDALE FINANCIAL CENTER JOINT VENTURE, a Maryland General
Partnership, (hereinafter referred to as "LANDLORD"), and ONESOFT CORPORATION, a
DELAWARE Corporation, (hereinafter referred to as "TENANT").
WITNESSETH, that for and in consideration of the rent hereinafter reserved
and of the mutual covenants and agreements hereinafter set forth, Landlord and
Tenant do hereby mutually agree as follows:
PREMISES 1.(a) Landlord does hereby lease to Tenant, and Tenant
does hereby lease from Landlord, for the term and upon the
covenants and conditions hereinafter set forth, the
Premises described as follows: Approximately FOUR THOUSAND
EIGHT HUNDRED NTNETY-SIX (4,896) RENTABLE SQUARE FEET as
shown on Exhibits A-1 and A-2 attached hereto and
incorporated herein by reference, consisting of ONE
THOUSAND EIGHT HUNDRED SIXTY (1,860) RENTABLE SQUARE FEET
located in Suite 430, and THREE THOUSAND THIRTY-SIX
(3,036) RENTABLE SQUARE FEET located in Suite 410 in the
Building known as "ANNANDALE FINANCIAL CENTER", located at
0000 Xxxxxx Xxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
(hereinafter referred to as the "Premises").
EARLY TERMINATION 1.(b) As an inducement to execute the following Lease, and
providing Tenant does execute this Agreement of Lease,
Landlord does hereby agree to waive any penalties for
early termination of the Tenant's Lease for the Premises
known as Xxxxx 000, Xxxxxxxxx Financial Center, 0000
Xxxxxx Xxxxx Xxxxxxxx. Xxxxxxxxx, Xxxxxxxx; and, further,
Landlord hereby incorporates Suite 430 into this new Lease
Agreement, thereby making void the Lease Agreement signed
April 15. 1995 for said Suite 430.
TERM 2.(a) The term of this Lease shall commence on the earlier
of (i) the "Substantial Completion" of Landlord' s
construction of the Premises or (ii) September 1, 1997
(the "LEASE COMMENCEMENT DATE"), expiring THREE (3) YEARS
after the Lease Commencement Date (the "EXPIRATION DATE").
The period commencing with the Lease Commencement Date (on
the first day of the next calendar month in the event the
Lease Commencement Date does not occur on the first day of
a month) and ending on the last day of the twelfth
calendar month thereafter shall constitute the first
"Lease Year" as such term is used herein. Each successive
full twelve (12) month period during the Lease Term shall
constitute a "Lease Year" and any portion of the Lease
Term remaining after the last twelve month period during
said Lease term shall constitute the last "Lease Year" for
the purpose of this lease.
(b) The term "Substantial Completion" shall mean that date
upon which construction of the improvements to the
Premises (as outlined in Paragraph 28. herein) have been
substantially completed and approved by
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local officials having jurisdiction, subject only to
normal punch list items that will not materially or
adversely interfere with Tenant's business operations.
Notwithstanding anything herein to the contrary, Tenant
shall have the opportunity to enter the Premises rent-free
(Suite 410) during the fifteen (15) day period prior to
the Lease Commencement Date for the purpose of installing
computer, data, telephone and television cable lines,
special equipment, furniture, fixtures, telephones and
other personal property, providing such early entrance
does not unreasonably interfere with Landlord's
construction in Premises. Any occupancy prior to the Lease
Commencement Date shall be pursuant to all the terms and
conditions of this Lease, except that rent shall not
commence until the Lease Commencement Date. Within fifteen
(15) days after the Lease Commencement Date, Landlord and
Tenant shall execute a Certificate of Commencement.
RENT 3. (a) During and for the Term hereof, commencing on the
Lease Commencement Date, Tenant covenants and agrees to
pay Landlord for the Premises, without notice or demand
and without deduction, set off or abatement, a fixed
minimum guaranteed base rent (hereinafter sometimes
referred to as the "BASE RENT") payable in monthly
installments, in advance. (hereinafter sometimes referred
to as "MONTHLY BASE RENT" ) as follows:
ANNUAL MONTHLY RENT PER
LEASE YEAR BASE REPORT BASE RENT SQUARE FOOT
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1 $ 80,784.00 $ 6,732.00 $ 16.50
2 $ 83,207.52 $ 6,933.96 $ 17.00
3 $ 85,680.00 $ 7,140.00 $ 17.50
Tenant shall pay all rent to Landlord at the office of
Landlord, or to such other party or at such other address
as Landlord max' designate from time to time by written
notice to Tenant. Rent shall be paid on or before the
first day of each and every calendar month, without prior
notice, during the Term hereof, provided, however that the
Monthly Base Rent for the First month of the Term shall be
payable upon execution of this Lease.
(b) Tenant covenants and agrees to pay to Landlord a Late
Fee equal to FIVE percent (5%) of the Monthly Base Rent if
any such payment is not received by Landlord within TEN
(10) days of their due date. In addition, all delinquent
payments due Landlord, including, but not limited to, rent
and additional rent, shall bear interest at the rate of
TWO percent (2%)
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per annum above the "Prime Rate" as published by Wall
Street Journal, New York, New York, as of the date such
payment became due, for the period beginning on the date
such payment became due to the date of payment thereof by
Tenant, provided, however, that nothing herein contained
shall be construed or implemented in such a manner as to
allow Landlord to charge or receive interest in excess of
the maximum rate then allowed by law. All such late fees
and interest charges shall be deemed additional rent due
hereunder and shall be payable with the next installment
of Monthly Base Rent.
OPERATING EXPENSES 4. (a) Tenant shall pay, as additional rent, for its
AND REAL ESTATE Proportionate Share on operating expenses and real estate
TAXES taxes for the Land and Building (including real estate
taxes and operating expenses for the Land which may be
paid as part of the Ground Rent, if any), in excess of the
total operating expenses and real estate taxes for the
Land and Building for the calendar year 1997 (hereinafter
referred to as the "BASE YEAR") as follows:
(i) Commencing ONE (1) year after the Lease
Commencement Date, Tenant shall pay to Landlord, on the
first day of each calendar month, an amount equal to
ONE-TWELFTH (1/12) of Tenant's Proportionate Share of
Landlord's reasonable estimate (as adjusted annually) of
the amount by which the sum of such operating expenses and
real estate taxes for the then-current calendar year will
exceed the actual amount thereof for the Base Year.
(ii) Within ONE HUNDRED TWENTY (120) days following
the end of each calendar year, Landlord shall furnish
Tenant a statement covering the year (or portion thereof)
just expired, certified as correct by an authorized
representative of Landlord, showing the total operating
expenses and real estate taxes, the amount of Tenant's
proportionate share of the same, and the payments made by
Tenant with respect to such year. If Tenant's
Proportionate Share of operating expenses and real estate
taxes exceeds Tenant's payments so made. Tenant shall pay
Landlord the deficiency within THIRTY (30) days after
receipt of such statement. If Tenant's payments exceed
Tenant's Proportionate Share of operating expenses and
real estate taxes, Tenant shall be entitled to offset the
excess against payments next thereafter to become due
Landlord hereunder or if this Lease has expired or
otherwise terminated and Tenant has returned the Premises
to Landlord and has made all payments called for in this
Lease, the excess shall be refunded to Tenant within
THIRTY (30) DAYS.
(b) The term "OPERATING EXPENSES" as used herein shall
mean all expenses, costs, and disbursements of every kind
and nature which Landlord shall pay or become obligated to
pay in connection with the ownership and/or operation of
the Land, Building and adjacent parking
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facilities (hereinafter referred to collectively as the
"PROPERTY"). By way of example, but without limitation,
operating expenses shall include wages, salaries, bonuses,
fringe benefits (including hospitalization, medical,
surgical, dental and/or group life insurance and pension
payments) and uniforms and dry-cleaning thereof, for
employees engaged in the operation, maintenance or repair
of the Property; social security, unemployment and other
payroll taxes; license fees; worker's compensation
insurance; to the extent that such employees are engaged
in the operations, maintenance, repair or security of
properties of the Landlord other than the Building, the
expenses for those employees set forth in this Paragraph
7, shall be apportioned in accordance with standard
accounting practices; electricity (except as directly
billed to tenants of the Building), gas, water, sewer and
other fuel and utilities; utility taxes; fire, casualty,
liability and other insurance; repairs, maintenance,
painting and cleaning of the Property and supplies
necessary therefor; cleaning of windows and exterior
curtain walls; snow removal, cleaning and other service
contracts; reasonable and customary management fees;
legal, accounting, and other professional fees with
disbursements incurred in connection with the operation
and management of the Property; decorations; exterior and
interior landscaping; depreciation of tools and equipment
used in the operation, cleaning, repair, safety,
management, security or maintenance of the Property; and
any other costs, charges, and expenses which, under
generally accepted accounting and management practices,
would be regarded as maintenance and operating expenses.
(i) The term "OPERATING EXPENSES" as used herein
shall not include any of the following: expenses for
capital improvements made to the Property, except those
expenses which are incurred in order to decrease the
overall operating expenses (to the extent that such
capital expenditures actually decrease operating
expenses), for the Property or are incurred for the
general maintenance of the Property; expenses for
painting. redecorating. or other work which Landlord
performs for any tenant of the Building, the expense of
which is billed to such tenant; interest, amortization, or
other payments on loans to Landlord whether secured, or
any costs connected with refinancing of such loans:
charges for depreciation of the Building or other said
improvements; ground rent payments: real estate brokerage
fees and commissions; space planning fees and commissions:
and advertising and marketing costs; legal fees and other
expenses incurred by Landlord or agents in connection with
negotiations or disputes with tenants or prospective
tenants (other than with Tenant or its sublessees or
assignees) for the Building: costs for structural
replacement or redesign; costs or expenses associated with
the enforcement of any leases (other than with Tenant or
its sublessess or assignees) by Landlord; any costs or
expenses relating to Landlord's obligations under any work
letter to construct tenant improvements (other than that
of Tenant); costs (including permit, license and
inspection fees,
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incurred in renovating or otherwise improving or
decorating space (other than common areas) for tenants in
the Building; compensation paid to officers of Landlord or
officers of the management or agent or any one else above
the level of asset manager; Landlords cost of any services
sold or provided to tenants for which Landlord is
reimbursed by such tenants under the lease with such
tenants; costs incurred due to violation by Landlord or
any other tenant of the terms and conditions of any lease;
any expense for Landlords' advertising and promotional
program for the Building; and renovation of the Building
made necessary by the exercise of eminent domain; any
transit, sales rental, use, gross receipts or occupancy
taxes levied upon Landlord or income or franchise taxes,
or any recordation, transfer, capital levy, estate, gift
or transfer taxes; any costs, fees or penalties incurred
by Landlord due to violations by Landlord of any
governmental rules or regulations; and any other expense
or cost which under generally accepted accounting
principles and practices consistently applied would not be
considered a normal maintenance or Operating Expense of
the Building.
(ii) Also excluded from "OPERATING EXPENSES" are
those costs and expenses which are paid by, or which are
attributable to, tenants, if any, which pay (either
directly or to the Landlord) all operating expenses
attributable to their respective spaces in the Building.
(c) At Lease Commencement the Proportionate Share shall be
deemed to be 7.6 %. The term "PROPORTIONATE SHARE" as used
herein shall be that fraction having as a numerator the
total number of rentable square feet contained in the
Premises, and as a denominator the total number of
rentable square feet contained in the Building. In the
event that the Building has tenants which pay for all
operating expenses attributable to their respective
spaces. the total number of rentable square feet leased to
such tenants shall be subtracted from the total number of
square feet in the Building for the purpose of determining
the denominator. Tenant's proportionate share figure shall
be subject to adjustment throughout the Term as the
figures used in the calculations may change.
(d) In the event that the building is less than
NINETY-FIVE percent (95%) occupied during any year.
adjustments shall be made in computing each Tenant's
proportionate share of expenses so that the expenses for
such year will be computed as though the Building were
NINETY-FIVE (95%) occupied and fully assessed.
Notwithstanding the foregoing, in no event max' the
Landlord collect more operating expenses than it has
actually incurred.
(e) Notwithstanding the foregoing provisions, it is agreed
that Tenant's share of Operating Expense increases shall
in no event include any amounts or costs or expenses
directly controllable by Landlord in excess of SIX (6%)
percent greater that the respective costs and expenses for
the
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previous year.
DELAYED POSSESSION 5. If Landlord shall be unable to give possession of the
Premises on the Lease Commencement Date specified in
Section 2 of this Lease for any reason, such failure to do
so shall not affect or impair the validity of this Lease
or the obligations of Tenant hereunder, except as
expressly provided herein, and Landlord shall not be
subject to any liability for damages for such failure to
give possession on said date. In such event, Landlord
shall notify Tenant in writing setting forth a new Lease
Commencement Date as specified in Section 2 of this Lease.
Unless such delay is due to the fault of Tenant, the Base
Rent reserved and covenanted to be paid herein shall not
commence until the date that possession of the Premises is
given to Tenant, or the Premises are available for
occupancy by Tenant and Tenant has been so notified by
Landlord, whichever shall first occur.
(b) If for any reason the Landlord shall be unable to give
possession of the Premises to Tenant more than TWO (2)
months after the Lease Commencement Date specified in
Section 2, then Tenant shall have the option to cancel
this Lease after such date by giving THIRTY (30) days'
prior written notice of such termination to the other
party. If Landlord shall tender possession of the Premises
to Tenant after Tenant has given notice such notice but
prior to the expiration of such THIRTY (30) day period,
any notice given by Tenant shall thereupon be nullified.
Upon any such cancellation becoming effective, Landlord
and Tenant shall be entirely relieved of the obligations
hereunder, and any security deposit given by Tenant to
Landlord shall be returned to Tenant.
USE OF PREMISES 6. Tenant shall use and occupy the Premises solely as
general office space, provided that such use(s) is in
accordance with applicable zoning and other local
governmental regulations. Without the prior written
consent of Landlord, the Premises shall not be used for
any other purposes or uses whatsoever. Tenant shall not
use or occupy the Premises for any unlawful purpose. and
shall comply with all present and future laws, ordinances,
regulations, and orders of the United States of America,
Commonwealth of Virginia, County of Fairfax. and any other
public or quasi-public authority having jurisdiction over
the Premises.
ASSIGNMENT AND 7. (a) Tenant shall not assign, transfer, mortgage, or
SUBLETTING otherwise encumber this Lease, or sublet, rent, or permit
occupancy or use of the Premises, or any part thereof,
without obtaining the prior written consent of Landlord,
which shall not be unreasonably withheld, nor shall any
subletting, assignment or transfer of this Lease or the
right of occupancy hereunder be effected by operation of
law or in any manner other than with the prior written
consent of Landlord. Any assignment or subletting or
transfer with or without Landlord's consent shall not be
construed as a waiver or release of Tenant from liability
hereinbefore the payments of rent or the
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performances and observance of any of the terms and
conditions of this Lease. The collection or acceptance of
rent from any assignee, subtenant, or occupant shall not
constitute a waiver or release of Tenant from any covenant
or obligation contained in this Lease, nor shall any
assignment or subletting be construed to relieve Tenant
from the obligation to obtain the consent in writing of
Landlord to any further assignment or subletting.
. (b) In the event that Tenant desires to assign or sublet
all or a portion of the Premises, Tenant shall give to
Landlord THIRTY (30) days written notice of Tenant's
intention to do same, the name, address and a current
financial statement of the proposed subtenant or assignee,
and a copy of the proposed assignment or sublease,
specifying, among other items, the proposed use, the term
and the rent of the proposed sublease or assignment.
Within TEN (10) days after receipt of said notice,
Landlord shall give written notice to Tenant, stating
whether Landlord approves or disapproves the proposed
assignment or sublease, Tenant may sublet or assign the
Premises only after first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld
as set forth herein above.
(c) In the event that Tenant defaults hereunder, Tenant
hereby assigns to Landlord the rent due from any subtenant
or assignee of Tenant and hereby authorizes each such
subtenant or assignee to pay said rent directly to
Landlord
MAINTENANCE 8.(a) Tenant shall keep the Premises, fixtures and
BY TENANT equipment therein in clean, safe sanitary and good order,
will suffer no waste or injury thereto, condition and
will, at the expiration or other termination of this
Lease, surrender the same, broom clean, in the same order
and condition in which they are on the Lease Commencement
Date, ordinary wear and tear excepted. Maintenance and
repair of all equipment and/or fixtures within or for the
exclusive benefit of the Premises, including, but not
limited to, kitchen fixtures, special air conditioning
equipment, bathroom fixtures, computers, or any other type
of equipment or improvements, together with related
plumbing, electrical, or other utility services, whether
installed by Tenant or by Landlord on behalf of Tenant,
shall be the sole responsibility of Tenant, and Landlord
shall half no obligation in connection therewith.
HOURS OF OPERATION 9. The regularly scheduled hours of operation for Building
shall be between EIGHT O'CLOCK (8:00 a.m.) to SIX O'CLOCK
(6:00 p.m.), Monday through Friday, and EIGHT O'CLOCK
(8:00 a.m.) to ONE O'CLOCK (1:00 p.m.) Saturday. Holidays
on which said water for the HVAC system shall not be
provided except at additional cost are: New Year's Day,
Washington's Birthday, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, Christmas Day, and Easter
Sunday. Such
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holidays shall be observed on the dates on which the same
are observed by the federal government. If Tenant desires
air conditioning/heat and or other utilities or services
beyond the hours of operation as herein above set forth,
and of mutually satisfactory written agreements are made
with Landlord, or its agent, not less than TWENTY-FOUR
(24) hours in advance of the requirement, Landlord shall
use its best efforts to furnish such air
conditioning/heating and/or other utilities or services to
tenant, and Tenant agree to pay Landlord the additional
costs of such services in an amount equal to ONE HUNDRED
TEN percent (110%) of the total direct costs of providing
such additional services on an overtime basis. Provided,
however, that Landlord and its agent shall not be liable
for failure to furnish or for suspension or delay in
furnishing any or all of such services caused by
breakdown, maintenance or repair work, strike, riot, civil
commotion, or any other cause or reason whatsoever beyond
the control of Landlord.
Building Services. Throughout the Term, Landlord agrees
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that the Building will be maintained in a manner befitting
a first-class rental office building in the Annandale,
Virginia area and that it will furnish, or cause to be
furnished, the following services to the Premises and
Building. Excluding emergency conditions beyond Landlord
control:
(a) Normal and usual cleaning and janitorial services
after 5:00 p.m. on business days
(b) Automatically operated elevator services TWENTY-FOUR
(24) hours a day, SEVEN (7) days a week. 365 days a year;
(c) All electric bulbs and fluorescent tubes in light
fixtures in the public areas of the Building and all
standard light bulbs and fluorescent tubes in the
Premises;
(d) An intercom type security access system located at the
front door of the Building. Tenant shall be given access
cards into the Building 24 hours a day, 7 days a week, 365
days a year;
(e) Normal and usual maintenance of the life-safety
systems, the elevators, the Garage and all Building
improvements and facilities;
(f) Heating, ventilating and air-conditioning to the
Premises between the hours of 8:00 a.m. and 6:00 p.m. on
business days and between the hours of 8:00 a.m. to 1:00
p.m. Saturday, excluding holidays.
TENANT ALTERATIONS 10. (a) Tenant shall not make or permit anyone to make any
alterations, additions, or improvements, structural or
otherwise, or install any fixtures (hereinafter
collectively referred to as "Alterations"), in or to the
Premises or the Building without the prior written consent
of Landlord. All of such Alterations permitted by Landlord
must conform to all rules
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and regulations established from time to time by the
Underwriters' Association of the local area and by the
Landlord and conform to all requirements of the Federal,
State and local governments. Prior to the commencement of
work on any Alterations, the Landlord's written approval
must be obtained as to (i) the contractor(s) and
subcontractor(s) selected to perform such work, and (ii)
comprehensive plans and specifications showing all the
proposed Alterations, including detailed descriptions of
the effect of the proposed Alterations on the mechanical
and electrical systems of the Building. Landlord shall
have the right to stop such work if the Landlord or its
designated agent determines that such work is not being
done in a workmanlike manner or in accordance with the
plans and specifications provided to Landlord. In such
event, Tenant shall promptly correct the problem(s) which
give rise to the work stoppage, and if Tenant fails to do
so within a time period determined by Landlord to be
reasonable, then Landlord may. at its sole option, correct
such problem(s), or complete the Alterations, or remove
the Alterations and restore the Premises to their original
condition, and Tenant shall be liable for the costs of
such action as additional rent. Copies of all plats,
plans. Sketches, permits, samples. etc. which are prepared
or obtained in the course of such Alterations shall be
provided to the Landlord or its designated agent no later
than TEN (10) days after such are prepared or obtained.
The Tenant agrees to pay to the Landlord or its designated
agent a reasonable inspection fee and to allow inspection
from time to time during the period of construction of all
Alterations. In addition, Tenant agrees to furnish "as
built" plans and specifications for all Alterations within
a reasonable period of time after completion of
Alterations, and to pay to Landlord, or its designated
agent, a reasonable fee for updating the master
reproducible Building blueprint to show the Alterations.
(b) Prior to commencing construction on any Alterations
approved by Landlord, Tenant agrees to obtain and deliver
to Landlord written and unconditional waivers of mechanic
`s and materialman's liens upon the Property for all work,
labor and services to be performed and materials to be
furnished, by them in connection with such work, signed by
all contractors, subcontractors, materialmen, and laborers
to become involved in such work. If notwithstanding the
foregoing, any mechanic' s or materialmen's lien is filed
against the Property for work claimed to have been done
for, or materials claimed to have been furnished to,
Tenant, such lien shall be discharged by Tenant within ten
(10) days thereafter, at Tenant's sole cost and expense,
by the payment thereof or by filing any bond required by
law. If Tenant shall fail to discharge any such mechanic's
or materialman's lien, Landlord may, at its option,
discharge the same and treat the cost thereof and any
legal expenses incurred in connection therewith, as
additional rent payable with the installment of Monthly
Base Rent next becoming due; it being hereby expressly
covenanted and agreed that such discharge by Landlord
shall
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not be deemed to waive or release the default of Tenant in
not discharging the same. It is understood and agreed by
Landlord and Tenant that any such Alterations shall be
constructed on behalf of Tenant. It is further understood
and agreed that, in the event Landlord shall give its
written consent to Tenant's making any such Alterations,
such written consent shall not be deemed to be an
agreement or consent by landlord to subject Landlord's
interest in the Property to any mechanic's or
materialman's liens which may be filed in respect of any
such Alterations made by or on behalf of Tenant.
(c) Tenant shall indemnify and hold Landlord harmless from
and against any and all expenses, liens, claims, or
damages to any person or property which may or might arise
directly or indirectly by reason of making of any such
Alterations.
(d) If any Alterations are made without the prior written
consent of Landlord, Landlord retains the right to enter
the Premises at any time during the Term of this Lease to
correct or remove the same and restore the Premises to
their condition prior to the construction of the
unauthorized Alterations, and Tenant shall be liable and
hereby agrees to reimburse the Landlord for the costs of
such removal and restoration together with any and all
damages which the Landlord max' suffer and sustain as a
result thereof.
(e) All Alterations, including wall-to-wall carpet and
wall covering, to, in or upon the Premises shall, unless
the Landlord elects otherwise, become the property of
Landlord and shall remain upon the Premises and be
surrendered with Premises at the expiration or termination
of this Lease, or any renewal or extension period, without
disturbance. molestation or injury. Should the Landlord
elect that Alterations made by the Tenant upon the
Premises be removed upon the expiration or termination of
this Lease, or any renewal period, the Tenant hereby
agrees to cause same to be removed at the Tenant's sole
cost and expense. And to restore the Premises to the
original improved condition, on or before the expiration
or termination of this Lease or any renewal period. Should
Tenant fail to remove the same or restore the Premises,
the Landlord may cause same to be removed and/or the
Premises to be restored at the Tenant's expense, and the
Tenant hereby agrees to pay to the Landlord the cost of
such renewal and/or restoration together with any and all
damages which the Landlord may suffer and sustain by
reason of the failure of the Tenant to remove the same
and/or restore the Premises as herein provided.
(f) If Tenant is not in default in the performance of any
of its obligations under this Lease, Tenant shall have the
right to remove, prior to the expiration of the Term of
this Lease, all movable equipment, furniture or
furnishings which are not affixed to the Premises or the
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Building and which were installed in the Premises at the
expense of Tenant. If such property of Tenant is not
removed by Tenant prior to the expiration or termination
of this Lease, the same shall become the property of
Landlord and shall be surrendered with the Premises as a
part thereof, or, at Landlord's option, Landlord may cause
the same to be removed and the Premises to be restored to
their original improved condition, and Tenant hereby
agrees to pay to Landlord the cost of such removal and
restoration together with any and all damages which
Landlord may suffer and sustain by reason of the failure
of Tenant to remove the same and restore the Premises or
Building as herein provided.
ADVERTISING 11. Except as otherwise herein provided, Tenant agrees
that no sign, advertisement, display or notice shall be
inscribed, painted or affixed on any part of the outside
or inside of the Premises or Building, except on the
directories and doors of offices, and then only in such
size, color and style as the Landlord shall approve.
Landlord shall have the right to prohibit any
advertisement, or display of items of the Tenant, wherever
appearing, which in the Landlord's reasonable opinion
tends to impair the reputation of the Building or its
desirability as a building for offices or for financial,
insurance or other institutions and businesses of like
nature. Upon written notice from the Landlord, Tenant
shall refrain from and discontinue such advertisement. In
the event that Tenant violates the terms of this section.
Landlord may remove any sign, advertisement, display or
notice and may charge the Tenant for any costs incurred by
Landlord in connection with such removal.
DELIVERIES 12. No freight, furniture or other bulky matter of any
description shall be received into the Building or carried
in the elevators, except as approved by the Landlord. All
moving of furniture, material and equipment in the
Building outside the Premises must be with the prior
written consent of the Landlord and in accordance with
Landlord's reasonable rules and instructions: however.
Landlord shall not be responsible for any damage to, or
charges for, moving the same. Tenant agrees to remove
promptly from the public area(s) within or adjacent to the
Building any of Tenant's personal property there delivered
or deposited. Landlord shall have the right to prescribe
the weight, method of installation, and position of safes
or other heavy fixtures or equipment. All damage done to
the Building by delivery, maintaining or removal of any
fixture or article of Tenant's furniture or equipment,
shall be repaired at the expense of Tenant.
EQUIPMENT 13. Tenant shall not install or operate in the Premises
any electrically operated equipment or other machinery,
except typewriters, adding machines, copiers, personal
computers, and such other office machinery and equipment
as is normally used in the operation of Tenant's business,
without obtaining the prior written consent of Landlord,
which shall not be unreasonably withheld or delayed, but
may be conditioned upon the
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payment by Tenant of additional rent in compensation for
any excess consumption of water and/or electricity as may
result from the operation of said equipment or machinery.
Tenant shall not install any equipment of any kind or
nature which shall or may necessitate changes,
replacements, or additions to, or cause an abnormal
increase in its use of the water, plumbing, heating, air
conditioning, or electrical systems, which serve the
Premises, without the prior written consent of Landlord.
Such consent shall not be withheld unreasonably, but may
be conditioned upon the payment of Tenant of the cost of
such changes, replacements, additions, or increased use.
Notwithstanding the foregoing, in the event that office
equipment or mechanical equipment used by Tenant in the
Premises shall cause noise or vibration that may be
transmitted to any part of the Building to such a degree
as to be objectionable to Landlord or any other tenant,
Tenant shall install, at its own expense, vibration
eliminators or silencing devices sufficient to eliminate
such noise and/or vibration. Tenant shall not install in
the Premises any fixtures, equipment, machinery, furniture
or furnishings which place a load upon the floor exceeding
the designed floor load capacity.
INSPECTIONS; ENTRY 14. Tenant agrees to allow Landlord, its agents or
employees to enter the Premises at all reasonable times to
examine, inspect or protect the same; to prevent damage or
injury to the same and/or to any other portion of the
Building; to make such alterations, additions,
improvements and repairs to the Premises or adjacent
portions of the Building as Landlord may deem necessary or
desirable; or to exhibit the same to prospective tenants
during the last SIX (6) months of the Term of this Lease,
or any renewal or extension period. or to prospective
purchasers of the Building or any portion thereof at any
time. None of the same shall be construed as an eviction,
actual or constructive. The rent reserved shall not xxxxx
while such alterations, additions, improvements or repairs
are being made, or because of such inspections or
exhibitions, whether by reason of loss or interruption of
Tenant's business or otherwise. Landlord agrees to make
all reasonable efforts to minimize any disruption of
Tenant's business by reason of such activities. Landlord's
right of entry for any purpose shall, however, be subject
to any State or Federal laws and regulations that may
currently enlist or may become applicable because of any
secret, confidential, or other restricted activities
carried on by Tenant in the Premises.
INSURANCE 15. (a) Insurance Rating. Tenant will not conduct or
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permit to be conducted any activity other than normal
office business nor will Tenant place any equipment in or
about the Premises or the Property which will, in any way,
increase the rate of property and casualty or other
insurance on the Property. If any increase in the rate of
property and casualty insurance or other insurance is
stated by any insurance company or by the applicable
Insurance Rating Bureau to be due to any activity or
equipment of Tenant in or about the Premises or the
Property, such
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statements shall be conclusive evidence that the increase
in such rate is due to such activity or equipment, and, as
a result thereof, Tenant shall be liable for such increase
and shall reimburse Landlord therefor upon demand. Any
such sum due Landlord shall be considered additional rent
payable hereunder.
(b) Liability Insurance. Tenant shall carry public
liability insurance with a company or companies licensed
to do business in the Commonwealth of Virginia and rated
not lower than Level A, Class XII, as rated in the most
recent edition of "Best's Key Rating Guide" for insurance
companies. Said insurance shall cover all liability of
Tenant and its authorized representatives arising out of
and in connection with Tenant's use or occupancy of the
Premises and the Property. Said insurance shall be in
minimum amounts set forth in the rules and regulations
established by Landlord from time to time such amounts to
be reasonable for Tenant's type of business; a copy of the
current rules and regulations is attached hereto as
Exhibit B. Said insurance shall name Landlord, and the
building management agency as additional insured, as their
interests may appear, and shall contain an endorsement
that said insurance shall remain in full force and effect
notwithstanding that the insured has waived his right of
action against any party prior to the occurrence of a
loss. A current Certificate of Insurance from such insurer
shall be delivered to Landlord's agent prior to the Lease
Commencement Date and renewals thereof shall be delivered
to Landlord's agent at least THIRTY (30) days prior to the
expiration of any such policy. Each policy shall contain
an endorsement that will prohibit its cancellation prior
to the expiration of THIRTY (30) days after written notice
to Landlord of such proposed cancellation.
(c) Waiver of Subrogation. Each party hereby waives, and
---------------------
shall have included in its liability insurance policies
for the Building and/or property insurance covering
Tenant's contents, furniture, furnishings, fixtures and
other property, appropriate clauses pursuant to which each
party's insurance carriers waive, all rights of
subrogation against the other party, its principals,
agents and employees, with respect to losses payable under
such policies, or appropriate clauses setting forth that
such policies shall not be invalidated should the insured
waive in writing prior to a loss any or all right of
recovery against any party for losses covered by such
policies. If either party at any time is unable to obtain
inclusion of either of the clauses described in the
preceding sentence, then such party shall have the other
party named in such policies as an additional insured, as
their interests may appear. If either party shall be named
as an additional insured in accordance with the foregoing
provisions, and if the main insured shall not be in
default hereunder, and, if progress satisfactory to
Landlord is being made with regard to repairs to any
damage to the Premises or improvements therein, the
additional insured shall promptly endorse to the order of
the main insured, without recourse, any check,
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draft or order for the payment of money representing the
proceeds of any such policy, or representing any other
payment under such policies, and the additional insured
hereby irrevocably waives any and all rights in and to
such proceeds and payments. Each party shall advise the
other party promptly as to the coverage or language of the
clauses included in its insurance policies pursuant to
this paragraph and shall notify the other party promptly
of any cancellation or change of the terms of any such
policies which would affect such clauses. All Certificates
of Insurance provided hereunder shall set forth the waiver
of subrogation provisions contained in the subject policy.
(d) Property and Casualty Insurance. Tenant covenants and
-------------------------------
agrees to maintain standard property and casualty
insurance covering its property located in, on or about
the Premises. Said insurance shall be replacement cost,
all risk coverage for all leasehold improvements other
than the building standard improvements. Tenant shall
deliver a Certificate of Insurance from its insurer to
Landlord's agent prior to the Lease Commencement Date, and
renewals thereof shall be delivered to Landlord's agent at
least THIRTY (30) days prior to the expiration of any such
policy.
DAMAGES TO 16. All breakage. injury or damage to the Premises or to
PREMISES OR Property, including damage to carpeting, wall finishes,
BUILDING and other items of improvement thereto, in any way caused
by Tenant or its agents, employees, contractors, visitors,
guests and invitees, shall be repaired at the expense of
the Tenant, except those covered by standard fire and
extended coverage perils insurance. Landlord shall make,
or cause to be made, such necessary repairs. alterations
and replacements, structural, nonstructural or otherwise,
and any charge. costs or damages so incurred by the
Landlord shall be paid by the Tenant. Landlord shall be
entitled to regard such charges, costs or damages as
additional rent, payable with the installment of Monthly
Base Rent next becoming due under this Lease. This
provision shall be construed as an additional remedy
granted to Landlord and not in limitation of any other
rights and remedies which Landlord has or may have.
WAIVER OF 17. (a) Tenant's Property and Personal Injury. All
LIABILITY -------------------------------------
INDEMNITY personal property of Tenant (for the purposes of this
Section, the term "Tenant" shall include Tenant, its
agents, employees, contractors, visitors, guests and
invitees) contained in the Premises shall be and remain
there at the sole risk of Tenant. Landlord and/or its
agents and employees shall not be liable for any accident
or damage to property of Tenant resulting from the use or
operation of elevators, heating, cooling, electrical or
plumbing apparatus, water, steam, or any other cause; nor
shall they be liable for any personal injury to Tenant
arising from the use, occupancy and/or condition of the
Premises or Property unless such injury shall directly
result directly from the gross negligence or willful
misconduct of Landlord; nor shall they be
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14
liable in any event for any interruption or loss of
Tenant's business. Notwithstanding any other language
contained herein, Landlord and/or its agents and employees
shall not be liable to Tenant for any loss, damage or
injury to person or property, even if the same is caused
by their negligence or willful misconduct, to the extent
that Tenant is compensated therefore by Tenant's
insurance.
(b) Tenant's Indemnity. Tenant shall indemnify and hold
Landlord and it's agents and employees harmless from all
loss, damage, liability, cost or expense incurred,
suffered, or claimed by any person or entity by reason of
injury, loss, or damage to any person, property or
business resulting from any default hereunder by Tenant,
or from Tenant's willful act, negligence or negligent or
unlawful use of the Premises or the Property or anything
therein, including but not limited to, water, steam,
electricity, or other facilities or equipment. Landlord
and/or its agents and employees assume no liability or
responsibility whatsoever with respect to the conduct and
operation of the business to be conducted by Tenant in the
Premises, and shall not be liable for any accident or
injury to any person or property which are caused by the
conduct and operation of Tenant's business. Tenant agrees
to indemnify and hold harmless Landlord, its agents and
employees, against all such claims.
BANKRUPTCY 18. All of the terms and provisions of this paragraph 18
are made expressly subject to and governed by the
provisions of the United States Bankruptcy Code and the
orders, rulings and other determination of any bankruptcy
court of appropriate jurisdiction relating to the Tenant
and/or this Lease. Thus, any provision of this paragraph
which is contrary to or in any way inconsistent with the
provisions of the United States Bankruptcy Code or any
order, ruling or other determination of any bankruptcy
court of appropriate jurisdiction shall, be deemed invalid
and of no force and effect.
(a) In the event that Tenant shall become a Debtor under
Chapter 7 of the Bankruptcy Code, and the Trustee or
Tenant shall elect to assume this Lease for the purpose of
assigning the same or otherwise, such election and
assignment may only be made if all of the terms and
conditions of subsection (b) and subsection (d) of this
Section 18 are satisfied. If such Trustee shall fail to
elect or assume this Lease within sixty (60) days after
the filing of the Petition, this Lease shall be deemed to
have been rejected. Landlord shall be thereupon
immediately entitled to possession of the Premises without
further obligation to Tenant or Trustee, and this Lease
shall be canceled, but Landlord's right to be compensated
for damages in such liquidation proceeding shall survive.
(b) In the event that a Petition for reorganization or
adjustment of debts is filed concerning Tenant under
Chapters 11 and 13 the Bankruptcy Code, or a proceeding is
filed under Chapter 7 of the
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15
Bankruptcy Code and is transferred to Chapter 11 or 13,
the Trustee or Tenant, as Debtor-In-Possession, must elect
to assume this Lease within SEVENTY-FIVE (75) days from
the date of the filing of the Petition under Chapters 11
or 13, or the Trustee or Debtor-In-Possession shall be
deemed to have rejected this Lease. No election by the
Trustee or Debtor-In-Possession to assume this Lease,
whether under Chapters 7, 11 or 13, shall be effective
unless each of the following conditions, which Landlord
and Tenant acknowledge are commercially reasonable in the
context of a bankruptcy proceeding of Tenant, have been
satisfied, and Landlord has so acknowledged in writing:
(1) The Trustee or the Debtor-in-Possession has cured, or
has provided Landlord adequate assurance (as defined
below) that:
(A) Within TEN (10) days from the date of such
assumption the Trustee will cure all monetary defaults
under this Lease; and
(B) Within THIRTY (30) days from the date of
such assumption the Trustee will cure all non-monetary
defaults under this Lease.
(2) The Trustee or the Debtor-in-Possession has
compensated, or has provided to Landlord adequate
assurance (as defined below) that within TEN (10) days
from the date of assumption. Landlord will be compensated
for any pecuniary loss incurred by Landlord arising from
the default of Tenant, the Trustee, or the
Debtor-in-Possession as recited in Landlord's written
statement of pecuniary loss sent to the Trustee or the
Debtor-in-Possession.
(3) The Trustee or the Debtor-In-Possession has provided
Landlord with adequate assurance of the future performance
of each of Tenant's, Trustee's or Debtor-In Possession's
obligations under this Lease provided, however, that:
(A) The Trustee or Debtor-In-Possession shall also deposit
with Landlord as security for the timely payment of rent,
an amount equal to THREE (3) months' base Rent and other
monetary charges accruing under this Lease; and
(B) If not otherwise required by the terms of this Lease,
the Trustee or Debtor-In-Possession shall also pay in
advance on the date Monthly Base Rent is payable,
ONE-TWELFTH (1/12) of Tenant's annual obligations under
this Lease for operating expenses real estate taxes, and
similar charges.
(C) The obligations imposed upon the Trustee or
Debtor-In-Possession shall continue with respect to Tenant
or any assignee of the
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16
Lease after the completion of bankruptcy proceedings.
(4) The assumption of the Lease will not:
(A) Breach any provision in any other lease,
mortgage, financing agreement or other agreement by which
Landlord is bound relating to the Building; or
(B) Disrupt, in Landlord's judgment, the tenant
mix of the Building or any other attempt by Landlord to
provide a specific variety of commercial tenants in the
Building which, in Landlord's judgment, would be most
beneficial to all of the tenants of the Building and would
enhance the image, reputation, and profitability of the
Building.
(C) For purposes of this subsection (b),
Landlord and Tenant acknowledge that, in the context of a
bankruptcy proceeding of Tenant, at a minimum "adequate
assurance shall mean:
(i) The Trustee or the Debtor-In-Possession has
and will continue to have sufficient unencumbered assets
after the payment of all secured obligations and
administrative expenses to assure Landlord that the
Trustee or Debtor-In-Possession will have sufficient funds
to fulfill the obligations of Tenant under this Lease, and
to keep the Premises stocked with inventory and properly
staffed with sufficient employees to conduct a
fully-operational. actively promoted business on the
Premises; and
(ii) The Bankruptcy Court shall have entered an
Order segregating sufficient cash payable to Landlord
and/or the Trustee or Debtor-In-Possession shall have
granted valid and perfected first lien and security
interest and/or mortgage in property of Tenant, Trustee or
Debtor-In-Possession, acceptable as to value and kind to
Landlord, to secure to Landlord the obligation of the
Trustee or Debtor-In-Possession to cure the monetary
and/or non-monetary defaults under this Lease within the
time period set forth above.
(c) In the extent that this Lease is assumed by a Trustee
appointed for Tenant or by Tenant as Debtor-In-Possession
under the provisions of subsection (b) hereof and
thereafter Tenant is liquidated of debts under Chapters 11
or 13 of the Bankruptcy Code, then, and in either of such
events, Landlord may, at its option, terminate this Lease
and all rights of Tenant hereunder, by giving Tenant
written notice of its election to so terminate, by no
later than THIRTY (30) days after the occurrence of either
of such events.
(d) If the Trustee or Debtor-In-Possession has assumed the
Lease pursuant to the terms and provisions of subsections
(a) or (b) herein, for the purpose of assigning (or elects
to assign) Tenant's interest under this
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17
Lease, or the estate created thereby, to any other person,
such interest or estate may be so assigned only if
Landlord shall acknowledge in writing that the intended
assignee has provided adequate assurance as defined in
this subsection (d) of future performance of all of the
terms, covenants and conditions of this Lease to be
perf6rmed by Tenant.
For purposes of this subsection (d), Landlord and Tenant
acknowledge that, in the context of a bankruptcy
proceeding of Tenant, at a minimum "adequate assurance of
future performance" shall mean that each of the following
conditions have been satisfied, and Landlord has so
acknowledged in writing:
(1) The assignee has submitted a current financial
statement audited by a Certified Public Accountant which
shows a net worth and working capital in amounts
determined to be sufficient by Landlord to assure the
future performance by such assignee of Tenant's
obligations under this Lease:
(2) The assignee, if requested by Landlord, shall have
obtained guarantees in form and substance satisfactory to
Landlord from one or more persons who satisfy Landlord's
standards of creditworthiness:
(3) Landlord has obtained all consents or waivers from any
third party required under any lease, mortgage. financing
arrangement or other agreement by which Landlord is bound
in order to permit Landlord to consent to such assignment.
(e) When, pursuant to the Bankruptcy Code, the Trustee or
Debtor-In-Possession shall be obligated to pay reasonable
use and occupancy charges for the use of the Premises or
any portion thereof, such charges shall not be less than
the Base Rent as defined in this Lease and other monetary
obligations of Tenant for the payment of operating
expenses, real estate taxes, and similar charges.
(f) Neither Tenant's interest in the Lease, nor any lesser
interest of Tenant herein, nor any estate of Tenant hereby
created, shall pass to any trustee, receiver, assignee for
the benefit of creditors, or any other person or entity,
or otherwise by operation of law under the laws of any
state having jurisdiction of the person or property of
Tenant (hereinafter referred to as the "state law") unless
Landlord shall consent to such transfer in writing. No
acceptance by Landlord of rent or any other payments from
any such trustee, receiver, assignee, person or other
entity shall be deemed to have waived, nor shall it waive
the need to obtain Landlord's consent of Landlord's right
to terminate this Lease for any transfer of Tenant's
interest under this Lease without such consent.
(g) In the event the estate of Tenant created hereby shall
be taken in
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18
execution or by other process of law, or if Tenant or any
guarantor of Tenant's obligations hereunder (hereinafter
referred to as the "guarantor") shall be adjudicated
insolvent pursuant to the provisions of any present or
future insolvency law under state law, or if any
proceedings are filed by or against the guarantor under
the Bankruptcy Code, or any similar provisions of any
future federal bankruptcy law, or if a Receiver or Trustee
of the property of Tenant or the guarantor shall be
appointed under state law by reason of Tenant's or the
guarantor's insolvency or inability to pay its debts as
they become due or otherwise, or if any assignment shall
be made of Tenant's or the guarantor's property for the
benefit of creditors under state law, then and in such
event Landlord may, at its option, terminate this Lease
and all rights of Tenant hereunder by giving Tenant
written notice of the election to so terminate within
THIRTY (30) days after the occurrence of such event.
As used in this Section 18. the term "Tenant" shall
include any surety or other guarantor of this Lease.
CASUALTY 19. In the event of damage by fire or other casualty to
the Premises or any part thereof, this Lease shall not be
terminated unless otherwise provided hereinafter, but
Landlord shall diligently proceed to repair and restore
the same. During the period that Tenant is deprived of the
use of the damaged portion of the Premises, provided that
such damage was not caused by the negligence or willful
misconduct of Tenant, its agents, employees, contractors,
visitors, guests or invitees, the rent for the remainder
of the Premises shall be that portion of the total rent
which the area remaining that can be occupied bears to the
total area of the Premises, so long as Tenant shall be
able to operate its business normally; if Tenant shall be
unable to operate its business normally, then rent shall
be abated during such period. If during the Term of this
Lease the Premises shall be so damaged by fire or other
casualty as to be untenantable, then unless said damage be
repaired within ONE HUNDRED TWENTY (120) days after said
fire or other casualty, either party, upon written notice
to the other party given at any time following the
expiration of ONE HUNDRED TWENTY (120) days thereafter,
may terminate this Lease, in which case the rent and
additional rent shall be apportioned and paid to the date
of said fire or other casualty. In the event that the
Building is so severely damaged or destroyed by fire or
other casualty (although the Premises may not be affected)
that Landlord shall decide within SIXTY (60) days
following such event of casualty not to rebuild or
construct the Building, then Landlord shall give written
notice to Tenant and this Lease and the tenancy hereunder
shall terminate in accordance with such notice.
CONDEMNATION 20. (a) Tenant agrees that if the Premises or a
substantial part thereof shall be taken, or sold under the
threat of condemnation, for public or quasi-public use or
purpose by or to any competent authority, this Lease
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19
shall fully terminate as of the date of any such taking.
Tenant shall have no claim against Landlord and shall have
no claim or right to any portion of the award which may be
made to Landlord as a result of any such condemnation; all
rights of Tenant to damages therefor, if any, are hereby
assigned by Tenant to Landlord. Upon such condemnation or
taking, the Term of this Lease shall cease and terminate
from the date of such taking or condemnation, and Tenant
shall have no claim against Landlord for the value of any
unexpired term of this Lease, leasehold improvements, or
good will. Notwithstanding the foregoing, Tenant shall be
free to pursue a separate claim against the condemning
authority for the depreciated value of its leasehold
improvements, provided that any award to Tenant shall not
result in a diminution of any award to Landlord.
(b) If less than a substantial part of the Premises is
taken or condemned, the rent for the remainder of the
Premises shall be that portion of the total rent which the
area remaining that can be occupied bears to the total
area of the Premises, effective on the date when title
vests in such governmental authority. The Lease shall
otherwise remain in full force and effect. For purposes
hereof, a substantial part of the Premises shall be
considered to have been taken if Tenant shall be unable to
operate its business in its normal and customary manner.
DEFAULT 21.(a) It is agreed that Tenant shall be in default if
Tenant shall fail to pay the rent (including any
additional rent) at the time the same shall become due and
payable as provided hereunder in Section 3(a) of this
Lease, and Tenant shall not cure such default within TEN
(10) days after the date due and payable for payment of
such rent; or if Tenant shall breach. violate, fail, or
neglect to keep and perform any of the other terms,
covenants, or conditions herein contained, or contained in
the Building Instruments, and Tenant shall not cure such
breach within THIRTY (30) days after written demand by
Landlord therefor, or, if such breach cannot reasonably be
cured within such period, Tenant shall fail to diligently
attempt to cure such breach, or if the Premises shall
become vacant or abandoned (provided that Landlord shall
not construe any vacation or abandonment of the Premises
before the expiration of the Term hereof as a default so
long as Tenant continues to comply with all covenants and
conditions of the Lease).
(b) In the event of default by Tenant, then and in each
such case, Landlord may treat the occurrence of such event
as a breach of this Lease, and in addition to any and all
other rights or remedies of Landlord in this Lease or at
law or in equity provided, it shall be, at the option of
Landlord, without further notice or demand of any kind to
Tenant or any other person:
(i) The right of Landlord, even though it may have relet
the Premises as hereinbelow provided, to declare the Lease
Term ended and
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20
to re-enter the Premises and take possession thereof and
remove all persons therefrom, and Tenant shall have no
further claim thereon or thereto;
(ii) The right of Landlord to bring suit for the
collection of rent and other charges, as it accrues
pursuant to the terms of this Lease, and damages
(including without limitation reasonable attorneys' fees
and the cost of renovating the Premises) without entering
into possession of said Premises or canceling this Lease;
(iii) The right of Landlord to re-enter or retake
possession of the Premises from Tenant by summary
proceedings or otherwise and to remove, or cause to be
removed, Tenant or any other occupants from the premises
in such manner as Landlord shall deem advisable with or
without legal process and using self-help if necessary,
and it is agreed that the commencement and prosecution of
any action by Landlord in an unlawful detainer, ejectment
or otherwise or any execution of any judgment or decree
obtained in any action to recover possession of the
Premises or any other re-entry and removal shall not be
construed as an election to terminate this Lease whether
or not such entry or reentry be had or taken under summary
proceedings or otherwise, and shall not be deemed to have
absolved or discharged Tenant from any of its obligations
or liabilities for the remainder of the Term. Tenant
shall, notwithstanding any such entry or re-entry,
continue to be liable for the payment of rent and the
performance of the other covenants, conditions and
agreements by Tenant to be performed as set forth in this
Lease, and Tenant shall pay to Landlord all monthly
deficits, after any such re-entry, in monthly installments
as the amounts of such deficits from time to time are
ascertained. In the event of any such ouster. Landlord
shall have the right but not the duty to rent or lease the
Premises to some other person. firm or corporation
(whether for a term greater or less than or equal to the
unexpired portion of the Term or whether the space leased
by the new lease includes more or less floor area than the
Premises) on such terms and conditions and for such rental
as the Landlord may deem proper and to collect said rental
and any other rental that may thereafter become payable.
In such event, the rentals received by Landlord from such
reletting shall be applied: first, to the payment of any
indebtedness other than the rent due hereunder from Tenant
to Landlord; second, to the payment of any cost of such
reletting (including without limitations the making of any
alterations, repairs or decorations in the Premises which
Landlord deems advisable); third, to the payment of the
cost of any alterations and repairs to the Premises;
third, to the payment of rent due and unpaid hereunder,
and the residue, if any, shall be held by Landlord and
applied in payment of future rent as the same may become
due and payable hereunder. Should that portion of such
rentals received from such reletting during any month,
which is applied to the payment of rent hereunder, be less
than the rent payable during that month by Tenant
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hereunder, then Tenant shall pay such deficiency to
Landlord. Such deficiency shall be calculated and paid
monthly; Tenant shall have no right to any excess. Tenant
shall also pay to Landlord, as soon as ascertained, any
costs and expenses, including, but not limited to,
brokerage commissions and attorneys' fees, incurred by
Landlord in such reletting or in making such alterations
and repairs not covered by the rental received from such
reletting. Nothing herein contained shall be construed as
obligating the Landlord to relet the whole or any part of
the Premises whatsoever. In the event of any entry or
taking possession of the Premises as aforesaid, Landlord
shall have the right, but not the obligation, to remove
therefrom all or any part of the personal property located
therein and may place the same in storage at a public
warehouse at the expense and risk of the owner or owners
thereof. The terms "re-enter" or "re-entry" as used in
this Lease are not and shall not be restricted to their
technical meaning but are used in their broadest sense.
(c) If Landlord elects to terminate this Lease under
the provisions set forth above, Landlord may recover from
Tenant as damages (all of which shall be immediately due
and payable from Tenant to Landlord), in addition to its
other remedies:
(i) Any unpaid rent, including interest
thereon, which is due and owing at the time of such
termination: plus
(ii) That rent, including interest thereon,
which would have been earned after termination until the
time of judgment; plus
(iii) A sum representing liquidated damages and
not penalty in an amount equal to the excess of the Base
Rent for the Premises at the time of termination and the
additional rent provided for in Section 4 above for the
year in which this Lease shall be terminated multiplied by
the number of years and fraction of a year then
constituting the remainder of the Term hereof. Over the
rental value of the Premises at the time of termination
for such unexpired Term, discounted at a rate of SEVEN
percent (7%) per annum to present value, less commissions,
advertising, cost of repairs and other expenses incidental
to reletting of such Premises.
Nothing herein contained shall limit or
prejudice the right of the Landlord to prove and obtain as
liquidated damages in any bankruptcy, insolvency,
receivership, reorganization or arrangement proceeding an
amount equal to the maximum allowed by any statute or rule
of law governing such proceedings and in effect at the
time when such damages are to be proved, whether or not
such amount be greater, equal to or less than the amount
of the excess referred to in the preceding sentence. In
determining the rental value of the Premises, the
commercially reasonable rental realized by any reletting
accomplished or accepted by
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22
Landlord within a reasonable time after termination of
this Lease, shall be deemed, prima facie, to be the rental
value.
(iv) Any other amount necessary to compensate
Landlord for all the detriment directly caused by Tenant's
failure to perform its obligations under this Lease or
which in the ordinary course of things would be likely to
result therefrom including without limitation to cost of
renovating the Premises and reasonable attorneys' fees;
plus
(v) At Landlord's election, such other amounts,
in addition to or in lieu of the foregoing, as may be
permitted from time to time by applicable law.
(d) In the event of default, all of the Tenant's fixtures,
furniture, equipment, improvements, additions,
alterations, and other personal property shall remain on
the Premises and in that event and continuing during the
length of said default, Landlord shall have the right to
take exclusive possession of same and to use the same,
rent or charge free, until all defaults are cured or. At
its option, at any time during the Lease Term, to require
Tenant to forthwith remove same. In connection with the
foregoing, Landlord shall have a lien upon the property of
Tenant in the Premises during the Lease Term for the
amount of any unpaid rent or other sum due from Tenant
hereunder. Except upon expiration of this Lease where no
default exists in the payment of rent or other sums due
from Tenant hereunder, Tenant shall not remove any of
Tenant's property from the Premises without the prior
written consent of Landlord, other than pursuant to sale
thereof in the regular course of its business, and
Landlord shall have the right and privilege at its sole
option and discretion, to take possession of all property
of Tenant in the Premises, to store the same in said
Premises, or to remove it therefrom and store it in such
place as ma; be selected by Landlord, at Tenant's risk and
expense, in accordance with such lien and of any rights of
distraint it may possess against Tenant's said property.
(e) In the event of a breach or threatened breach by
Tenant of any of the covenants or provisions hereof,
Landlord shall have the right of injunction and the right
to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not
therein provided for; and in such event Landlord shall be
entitled to recover from Tenant, payable as additional
rent hereunder, any and all reasonable expenses as
Landlord may incur in connection with its efforts to
secure such injunctive relief or other remedy at law or in
equity, such as court costs and attorneys' fees. Landlord
and Tenant hereby expressly waive trial by jury in any
action, proceeding or counterclaim, brought by either of
them against the other, on any matter whatsoever arising
out of or in any way connected with this Lease, their
relationship as Landlord and Tenant, Tenant's use and
occupancy of the Premises and/or any claim of
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23
injury or damage. If Landlord shall commence any
proceeding for non-payment of rent, or any other payment
of any kind to which Landlord may be entitled or which it
may claim hereunder, Tenant will not interpose any
counterclaim or set-off of whatever nature or description
in any such proceeding, the parties hereto specifically
agreeing that Tenant's covenants to pay rent or any other
payments required of it hereunder are independent of all
other covenants and agreements herein contained, provided,
however, that this shall not be constructed as a waiver of
Tenant's rights to assert such a claim in any separate
action brought by Tenant. Tenant further waives any right
of defense which may have to claim a merger, and neither
the commencement of any action or proceeding settlement
thereof nor entering of judgment shall bar Landlord from
bringing subsequent actions or proceedings from time to
time. Mention in this Lease of any particular remedy shall
not preclude Landlord from any other remedy at law or in
equity to which it may be entitled. Tenant hereby
expressly waives any and all rights of redemption granted
by or under any present or future laws in event of Tenant
being evicted or dispossessed for any cause, or in the
event of Landlord obtaining possession of the Premises by
reason of the violation by Tenant of any of the covenants
and conditions of this Lease, or otherwise.
(f) It is further provided that, if legal proceedings are
instituted hereunder, and a compromise or settlement
thereof shall be made, it shall not be constituted as a
waiver of any breach of any covenant, condition or
agreement herein contained.
(g) No payment by Tenant or receipt by Landlord of a
lesser amount than the Monthly Base Rent herein stipulated
shall be deemed to be other than on account of the
earliest stipulated rent then due. nor shall any
endorsement or statement on any check or any letter
accompanying any check or payment of rent be deemed an
accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to
recover the balance of such rent or to pursue any other
remedy.
(h) Should Tenant fail to pay rent (including any
additional rent) as and when the same is due, Landlord
shall not be required to wait until the expiration of the
Term hereof to xxx for Landlord's loss or damages, but
shall have the right to xxx from time to time to recover
unpaid rent and other damages as provided in this Lease.
Landlord shall have the option to declare the entire
balance of the Base Rent (including annual increases as
provided herein) immediately due and payable upon failure
by Tenant to cure any default within the time prescribed
herein. Landlord shall have the further option to defer
action until the expiration of the Term, in which event
the cause of action shall not be deemed to have accrued
until the date of expiration. All rights and remedies of
Landlord under this Lease shall be cumulative and shall
not be exclusive of any other rights
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24
and remedies provided to Landlord under applicable law.
(i) If prior to the commencement of the Term of this
Lease, Tenant notifies Landlord of or otherwise
unequivocally demonstrates an intention to repudiate this
Lease, Landlord may, at its option, consider such
anticipatory repudiation a breach of this Lease. In
addition to any other remedies available to it hereunder
or at law or in equity, Landlord may retain all rent paid
upon execution of the Lease and the security deposit, if
any, to be applied to damages of Landlord incurred as a
result of such repudiation, including, without limitation,
attorneys' fees, brokerage fees, costs of reletting and
loss of rent. It is agreed between the parties that for
the purpose of calculating Landlord's damages, in a
building which has other available space at the time of
Tenant's breach, Landlord shall have no obligation to rent
the Premises prior to other space in the Building.
SUBORDINATION 22. This Lease is subject and subordinate to all ground or
underlying leases, if any, and to any deeds of trust which
may now or hereafter affect this Lease or the Property,
and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding the
foregoing. Tenant shall have the right to keep the Lease
in full force and effect so long as Tenant shall fully
comply with all the terms of this Lease. This clause shall
be self-operative and no further instrument of
subordination shall be necessary to effect the
subordination of this Lease to the lien of any such lease,
mortgage or deed of trust. In confirmation of such
subordination, however, Tenant shall execute promptly any
such certificate or subordination agreement that Landlord
may request. Tenant hereby constitutes and appoints
Landlord as Tenant's attorney-in-fact to execute any such
certificate(s) for and on behalf of Tenant, said
appointment to be a power coupled with an interest and
irrevocable during the Term of this Lease. In the event of
any proceeding to terminate any ground or underlying
lease, or in the event of any proceeding for the
foreclosure of any mortgage or deed of trust to which this
Lease is subordinate, the ground lessor, purchaser,
assignee or other successor to Landlord's rights, shall
have the option to terminate or cancel this Lease; if this
Lease is not so terminated or canceled, Tenant shall
attorn to the Lessor thereunder or to the purchaser at the
foreclosure sale.
Upon request and with reasonable notice from Tenant,
Landlord shall obtain a non-disturbance agreement on
Tenant's behalf from each existing Mortgagee (and any
future mortgagees upon request by Tenant) on such
Mortgagees's commercially reasonable standard form (and in
recordable form) agreeing that such Mortgagee or any
purchaser in a foreclosure sale shall recognize and be
bound by the terms of this Lease upon a foreclosure or
deed in lieu thereof (as long as no Event of Default
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25
exists hereunder).
HOLDOVER 23. If Tenant shall remain in the Premises, with the
PROVISIONS knowledge and written consent of Landlord, after the
expiration of the Term of this Lease, or any renewal or
extension thereof, Tenant shall become a tenant from month
to month at ONE HUNDRED TEN PERCENT (110%) of the monthly
rental for the last month of the Lease Term, commencing on
the first day next after the Lease Expiration Date. Tenant
shall give to Landlord at least THIRTY (30) days written
notice of any intention to quit the Premises, and Tenant
shall be entitled to THIRTY (30) days written notice to
quit except in the event of default hereunder. All other
terms and conditions of this Lease shall remain in full
force and effect. Provided, however, that in the event
that Tenant shall hold over without Landlord's knowledge
and consent, then at any time prior to Landlord's
acceptance of rent from Tenant as a monthly tenant
hereunder, Landlord, at its option, may re-enter and take
possession of the Premises without process, or by any
legal proceeds in force in the jurisdiction in which the
Building is situated.
SUCCESSORS' 24. It is agreed that all rights, remedies and liabilities
OBLIGATIONS hereunder given to or imposed upon either of the parties
hereto shall extend to their respective heirs, successors,
executors, administrators and assigns. This provision
shall not be deemed to grant Tenant any right to assign
this Lease or to sublet the Premises, except as set forth
in Section 7 above. Tenant acknowledges Landlord might not
be, now or in the future, the owner of the fee interest in
the Premises, the Building and/or Land. The term
"LANDLORD" as used in this Lease is hereby defined to be
only the then current owner or mortgagee in possession of
the Premises. In the event of any sale or sales by the
then current Landlord hereunder to any party then, from
and after the closing of such sale or lease transaction,
the Landlord whose interest is thus sold or leased shall
be and hereby is completely released and forever
discharged from and of all covenants, obligations and
liabilities of Landlord hereunder thereafter accruing.
RULES AND 25. The Tenant covenants that the rules and regulations
REGULATIONS set forth in Exhibit B, attached hereto and incorporated
herein by reference, and such other and further rules and
regulations as the Landlord may make and furnish to the
Tenant, and which in Landlord's judgment are necessary or
appropriate for the general well-being, safety, care and
cleanliness of the Premises and the Building together with
the appurtenances, shall be faithfully kept, observed and
performed by Tenant, and by Tenant's agents, servants,
employees and guests unless waived in writing by the
Landlord. All such rules and regulations shall be enforced
in a consistent manner by Landlord against all tenants in
the Buildings. Any failure by Landlord to enforce any rule
or regulation against any party shall not be deemed a
waiver of such rule or regulation or of Landlord's further
right
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26
to enforce the same.
REPRESENT- 26. Landlord Covenants. Landlord covenants that it has the
ATIONS, right to make this Lease for the Term aforesaid, and that
WARRANTIES AND if Tenant shall pay the rent and performs all of the
COVENANTS covenants, terms, conditions, and agreements of this Lease
OF LANDLORDS to be performed by Tenant, Tenant shall, during the Term,
be able to freely, peaceably and quietly occupy and enjoy
the full possession of the Premises without molestation or
hindrance by Landlord or any party claiming through or
under Landlord, subject to other provisions contained in
this Lease.
(a) Landlord shall maintain during the term of this Lease,
all risk coverage for the Building in the amount of the
full replacement value thereof together with comprehensive
general liability insurance.
(b) Landlord represents and warrants to Tenant as follows:
To the best of Landlord's knowledge after due inquiry, no
governmental regulated hazardous or toxic substances have
been used, processed, released, discharged, generated,
treated, stored or disposed of on the Premises, the
Building or the land upon which the Building is located
(the "Land") and no hazardous or toxic substances
currently exist on or about the Premises, the Building or
the Land and, to the best of Landlord's knowledge, any
adjacent property. In the event Landlord becomes aware of
any governmental regulated hazardous or toxic substances
that have been used, processed, released, discharged,
generated, treated, stored or disposed of on the Premises,
the Building or the land upon which the Building is
located (the "Land"). Landlord shall remove or otherwise
contain any such substances within thirty (30) days after
Landlord becomes aware of such hazardous or toxic
substances.
RESERVATIONS OF 27. Tenant hereby acknowledges that the Landlord retains
RIGHTS OF ADDRESS the following rights: (i) to change the street address
and/or name of the Building and/or name of the Building
and/or the arrangement and/or location entrances,
passageways, doors, doorways, corridors, elevators,
stairs, toilets, or other public parts of the Building and
to make improvements, alterations, additions,
installations, eliminations and changes to the Building,
Land, parking facilities, or any part thereof, provided
that such changes do not unreasonably interfere with
Tenant's use and occupancy of the Premises or conduct of
its business (except in the event of an emergency); (ii)
to erect, use, and maintain pipes and conduits in and
through the Premises; (iii) to grant to anyone the
exclusive right to conduct any particular business or
undertaking in the Building; (iv) to install and maintain
signs on the Building and/or Land; and (v) have passkeys
to the Premises. 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
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27
Tenant or Tenant's use or occupancy of the Premises.
CONSTRUCTION 28. Landlord's Standard Work. It is understood and agreed
LEASEHOLD that Tenant will take the Premises in "AS-IS" condition
IMPROVEMENTS upon commencement of this Lease Agreement. All Leasehold
Improvements existing in the Premises upon occupancy of
Tenant or made by or for Tenant after commencement of any
lease term with Landlord shall remain as the sole property
of the Landlord, and in no event shall Tenant remove any
Leasehold Improvements from the Premises.
(a) Landlord or Tenant's contractors (as approved by
Landlord) shall perform the following Tenant Improvements
in Premises at Landlord's sole cost and expense:
(1) Recarpet Suite 410 to match as closely as
possible the carpet in Suite 430.
(2) Repaint both Xxxxx 000 xxx Xxxxx 000, using
building standard materials, in a color to be chosen by
Tenant.
(3) Construct a pass-through from one office
area to the other.
(4) Professionally clean existing carpet in
Suite 430.
(b) Tenant may request that Landlord or Tenant's
contractors (as approved by Landlord) perform additional
improvements upon the Premises ("Tenant Improvements") up
to a maximum amount of THREE AND NO/100 DOLLARS ($3.00)
per rentable square foot ("Allowance"). Said Tenant
Improvements shall include all architectural and
engineering fees, tenant plans and construction drawings,
any and all necessary permits, and all Tenant Improvement
work in Premises, in accordance with Tenant's Approved
Plans (which shall be set forth as Exhibit "C". a copy of
which shall be attached hereto and made a part hereof). In
the event that Tenant requests Landlord to perform said
Tenant Improvements on behalf of Tenant, Tenant shall
reimburse Landlord for all costs by adding the cost of the
Tenant Improvements to the Base Rent and by repaying this
amount to Landlord, on a monthly basis over the initial
term of the Lease. If Tenant elects to perform any
Additional Tenant Improvements to Premises in excess of
the Allowance, said Additional Improvements shall be at
the sole cost and expense of Tenant.
TERMINATION 29. Provided the Tenant is in possession of the Premises
OPTION and is not in default of the Lease, then Tenant shall have
the option to terminate this Lease anytime after the end
of the EIGHTEENTH (18th) MONTH of the Lease Term by
providing Landlord with at least SIX (6) MONTHS' prior
written notice of its intention to exercise this right of
termination. Should Tenant elect to exercise this right,
Tenant shall be subject to penalties,
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28
whereby Tenant shall reimburse and pay to Landlord all
unamortized costs of construction of Premises paid out by
Landlord for this Lease. Additional penalties shall be due
and payable as follows: If Tenant elects to terminate
between the end of the NINETEENTH (19TH) MONTH and the
TWENTY-SEVENTH (27TH) MONTH of the Lease, a penalty of TWO
(2) MONTHS' Base Rent shall be paid by Tenant; if the
Tenant elects to terminate between the TWENTY-EIGHTH
(28TH) MONTH and the THIRTY-SIXTH (36TH) MONTH, a penalty
of ONE (1) MONTH'S Base Rent shall be paid by Tenant. All
penalties shall be due and payable to Landlord by Tenant
within THIRTY (30) days of receipt of Tenant's notice
exercising this right. Time is of the essence.
MECHANIC 30. Tenant shall not do. or suffer to be done, any act,
LIENS matter or thing whereby the Premises (or Tenant's interest
therein), or any part thereof, may be encumbered by any
mechanics' or materialmen's lien and/or any other lien or
encumbrance. Tenant shall discharge, within ten (10)
business days after the date of filing, any mechanic's, or
materialmen's or other liens filed against the Premises,
or Tenant interest therein, or any part thereof,
purporting to be for work or material furnished, or to be
furnished, to Tenant.
PARKING 31. Landlord agrees to provide for the use of Tenant in
common with others, a surface parking area adjacent to the
Building in which the Demised Premises are located. The
Landlord reserves the right to promulgate rules and
regulations relating to the use of such surface parking
area. including such limitations as may, in the opinion of
the Landlord, be necessary and desirable. Tenant and
Tenant's employees shall park their vehicles only in those
portions of the parking areas designated for employee
parking by the Landlord. Further, Tenant and its employees
are expressly prohibited from parking in any portion of
the parking area designated or marked for visitor parking
only. Tenant, shall within FIVE (5) days after taking
possession of the Demised Premises, furnish Landlord or
its agent with the vehicle license numbers assigned to
Tenant's vehicles and the vehicles of Tenant's employees,
and shall thereafter notify the Landlord or its agent of
any changes within FIVE (5) days after such changes occur.
In the event that the Tenant or any of its employees shall
park their vehicles in any portion of the parking area
other than that portion designated for that purpose, then
the Landlord shall have the right, at Landlord's option,
to assess Tenant a fine or penalty for any such improperly
parked vehicle, and/or to have any such improperly parked
vehicle towed at Tenant's expense.
As an inducement to enter into this Lease Agreement,
Landlord agrees to assign SEVEN (7) parking spaces in the
parking lot of the Building specifically designated for
Tenant.
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GENDER 32. Feminine or neuter pronouns shall be substituted for
the masculine form, and the plural shall be substituted
for the singular number, in any place or places herein in
which the context may require such substitution or
substitutions. Landlord and Tenant, as a matter of
convenience, have been referred to in neuter form.
NOTICES 33. All notices required or desired to be given hereunder
by either party to the other shall be hand delivered or
given by certified or registered mail, first-class postage
prepaid, return receipt requested. Notices to the
respective parties shall be addressed as follows:
To LANDLORD: ANNANDALE FINANCIAL CENTER
JOINT VENTURE
c/o Southern Management Corporation
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
To TENANT: ONESOFT CORPORATION
ATTN: Xxxxx X. XxXxxxxx XX
0000 Xxxxxx Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxx XX 00000
Either party may. by like written notice, designate a new
address to which such notices shall be directed.
ESTOPPEL 34. Tenant agrees. at any time and from time to time, upon
CERTIFICATES not less than FIVE (5) days prior written notice by
Landlord, to execute , acknowledge and deliver to Landlord
a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect (or if there have
been modifications, that the Lease is in full force and
effect as modified and stating the modification); (ii)
stating the dates to which the rent and any other charges
hereunder have been paid by Tenant; (iii) stating whether
or not to the best knowledge of Tenant. Landlord is in
default in the performance of any covenant; (iv) stating
the address to which notices to Tenant should be sent; and
(v) any other information as may be reasonably required.
Any such statement delivered pursuant hereto may be relied
upon by any owner of the Building or the Land, any
prospective purchaser of the Building or the Land, any
mortgagee or prospective mortgagee of the Building or the
Land or of Landlord's interest in either, or any
prospective assignee of any such mortgagee.
SECURITY 35. To secure the full faith performance by Tenant of all
DEPOSIT of the obligations, covenants, conditions and agreements
to be fulfilled, kept, observed, and performed by Tenant,
Tenant shall tender Landlord the
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sum of FIVE THOUSAND ONE HUNDRED SIXTY-EIGHT AND 00/100
DOLLARS ($5,168.75) which sum shall be held as a security
deposit ("SECURITY DEPOSIT") and applied towards its
damages and/or remedies in the event of Tenant's default.
Landlord's rights against Tenant in the event of Default
shall in no way be limited or restricted by this security
deposit. Upon the expiration of this Term (or any renewal
or extension thereof in accordance with this Lease),
Landlord shall, provided that tenant is not in default
under the terms hereof, return and pay back such security
deposit to tenant, less such portion thereof as Landlord
shall have appropriated to cure any default by tenant with
respect to any of Tenant's aforesaid obligations,
covenants, conditions and agreements and no damages or
expenses incurred by Landlord. In the event of any default
by Tenant hereunder, Landlord shall have the right, but
not the obligation, to apply all or any portion of the
Security Deposit to cure such default, in which event,
Tenant shall be obligated to promptly deposit with the
Landlord the amount necessary to restore the Security
Deposit to its original amount. In the event of the sale
or transfer of Landlord's interest in the Building,
Landlord shall have the right to transfer the Security
Deposit to such purchaser or transferee in which event
Tenant shall look only to the new Landlord for the return
of the Security Deposit and Landlord shall thereupon be
released from all liability to Tenant for the return of
such Security Deposit.
GOVERNING LAW 36. The parties agree that the laws of the Commonwealth of
Virginia shall govern the validity, performance and
enforcement of this Lease.
BROKERS 37. Landlord and Tenant each represent and warrant that
neither of them has employed any broker to negotiate the
terms of this Lease.
WAIVER OF BREACH 38. No delay in exercising or failure to exercise any
right or power hereunder by Landlord shall impair any such
right or shall be construed as a waiver of any breach or
default, or as acquiescence thereto. One or more waivers
of any covenants, terms or conditions of this Lease by
Landlord shall not be construed by the other party as a
waiver of a continuing or subsequent breach of the same
covenant, term or condition. The consent or approval by
Landlord to or of any act by Tenant of a nature requiring
consent or render unnecessary consent to or approval of
any subsequent similar act. No provision of this Lease
shall be deemed to have been waived by Landlord, unless
such waiver be in writing signed by Landlord.
SEVERABILITY 39. If any term or provision of this Lease or the
OF CLAUSES application thereof to any person or circumstance shall to
any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such term or provision
to persons or circumstances other than to those as to
which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of the Lease
shall be valid and be enforced
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31
to the fullest extent permitted by law.
CAPTIONS 40. The titles of the sections and paragraphs throughout
this Lease are for convenience FOR CON- and reference
only, and the words contained therein shall be in no way
held to explain, VENIENCE modify, amplify or aid in the
interpretation, construction or meaning of the provisions
of this Lease.
DUPLICATE COUNTER- 41. This Lease may be executed in one or more
PARTS ORIGINALS counterparts, each of which shall be an original, and all
of which shall constitute one and the same instrument.
ENTIRE AGREEMENT 42. This Lease constitutes the entire agreement between
the parties and no earlier statements or prior written
matter shall have any force or effect. Tenant is not
relying on any representations or agreements other than
those contained-in this Lease. This Lease shall not be
modified or canceled except by written instrument executed
by both parties.
(SIGNATURES ON FOLLOWING PAGE.)
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WITNESSETH the following signatures and seals:
WITNESS: LANDLORD:
/s/ Xxxxxx X. Xxxxx, Xx.
------------------------ ANNANDALE FINANCIAL
CENTER JOINT VENTURE
a Maryland general partnership
By: /s/ Xxxxx Xxxxx
---------------
Its: Agent
Date: 7/14/97
ATTEST: TENANT:
-------------------------- ONESOFT CORPORATION
Corporate Secretary [SEAL] a Delaware corporation
By: /s/ Xxxxx X. XxxXxxxxx, XX
--------------------------
Its: President
Date: July 11, 1997
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33
EXHIBIT "A"
SPACE PLAN
TO BE ATTACHED
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34
EXHIBIT "B"
a. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls or other parts of the Building not occupied by any
tenant shall not be obstructed or encumbered by any tenant or used for any
purpose other than ingress or egress to and from the Premises. Landlord shall
have the right to control and operate the public portions of the Building, and
the facilities furnished for the common use of the tenants, in such manner as
Landlord reasonably deems best for the benefit of the tenants generally. No
tenant shall permit the visit to the Premises of persons in such numbers or
under such conditions as to materially interfere with the use and enjoyment by
other tenants of the entrances, corridors, elevators and other public portions
or facilities of the Building.
b. No awning or other projections shall be attached to the outside
walls of the building, without the prior written consent of Landlord.
Notwithstanding the existing window coverings, no drapes, blinds, shades, or
screens shall be attached to or hung in, or used in connection with, any window
or door of the Premises, without the prior written consent of Landlord. Such
awnings, projections, curtains, blinds, screens or other fixtures must be of a
quality, type, design, and color, and attached in a manner approved by Landlord.
c. The doors leading to the corridors or main halls shall be kept
closed during business hours except as they may be used to ingress or egress. No
additional locks shall be placed upon any doors of the Premises except for the
door of the file room, nor shall any changes be made in existing locks or the
mechanisms thereof; except that Tenant shall have the right at its expense to
install security locks on all entry doors and fire doors opening into the
Premises, and also on the doors to any offices within the Premises, provided
Tenant at the termination of its occupancy shall restore to Landlord all keys of
stores, offices, storage and toilet rooms, either furnished to, or otherwise
procured by Tenant, and in the event of the loss of any keys so furnished,
Tenant shall pay to Landlord the cost to replace. Tenant further agrees that,
should Landlord so require, Tenant will at its expense remove any additional
locks which it installed or caused to be installed, reinstall the original
hardware, and repair to Landlord's reasonable satisfaction any damage to doors
or frames. Tenant agrees to give access upon reasonable request to any such
locked area(s).
d. Tenant shall not construct, maintain, use or operate within the
Premises or elsewhere in the Building of which the Premises form a part or on
the outside of the Building, any electrical device, wiring or apparatus in
connection with a loud speaker system or other sound system unless the Tenant
shall have first obtained the prior written consent of the Landlord, except that
this restriction shall not apply to radios, television sets or dictating
machines, or paging systems, if such items are audible solely within the
Premises. There shall be no marking, painting, drilling into or in any way
defacing any part of the Demised Premises or the Building with the exception of
affixing wall decorations, shelving and like items within the Premises. No
Tenant shall throw anything out of the doors or windows or down the corridors or
stairs.
e. The employees of the landlord are prohibited as such from
receiving any packages or other articles delivered to the Building for the
Tenant, and should any such employee receive
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any such packages or articles, he or she in so doing shall be the agent of the
Tenant and not of the Landlord.
f. The water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were constructed, and
no sweepings, rubbish, rags, or other substances shall be thrown therein. All
reasonable costs for damages resulting from any misuse of the fixtures shall be
borne by the Tenant who, in whose servants, employees, agents, visitors, or
licensees, shall have caused same.
g. No vehicles or animals, except for animals whose function is to
assist disabled persons, of any kind shall be brought into or kept in or about
the Premises or the Building, and no cooking shall be done or permitted by the
Tenant on the demised premises except in kitchens constructed as part of Tenant
Improvements. No Tenant shall cause or permit any reasonably objectionable odors
to be produced upon or emanate from the Premises.
h. Neither Tenant, nor any of Tenant's servants, employees, agents,
visitors or licensees, shall at any time bring or keep upon the Premises any
inflammable, combustible or explosive fluid, chemical or substance except normal
and customary office supplies.
i. Canvassing, soliciting and peddling in the Building is prohibited
and Tenant shall cooperate to prevent the same.
j. Any person employed by Tenant to do janitorial work within the
Premises must first obtain Landlord's consent and such person shall, while in
the Building and outside of said demised premises, comply with all instructions
issued by the superintendent of the Building.
k. There shall not be used in any space, or in the public halls of
the Building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires.
l. Access plates to under floor conduits must be left exposed. Where
carpet is installed, carpet must be cut around access plates.
m. Tenant shall use reasonable efforts to adjust thermostat, if
adjustable, to the setting which uses the least amount of energy upon leaving
the Premises daily.
n. Mats, trash, or other objects are not permitted in the public
corridors.
o. Landlord and/or its parking contractor shall have the right to
establish reasonable rules and regulations for the use of all parking facilities
at the Building.
p. Landlord shall have the right to determine when Tenant may move
its property; i.e., furnishings, files, etc., into or out of the Premises.
Tenant shall request permission from Landlord for any such move, and shall abide
by Landlord's reasonable rules regarding any such move.
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q. Tenant shall purchase and maintain comprehensive public liability
and property damage insurance on the Premises, protecting Landlord and Tenant
against loss, cost, or expense by reason of injury or death to persons or damage
to or destruction of property by reason of the use and occupancy of the Premises
by Tenant and its invitees, such insurance to be carried by reputable companies
and having limits of not less than $1,000,000.00 for injury to or death of any
one person, $1,000,000.00 for each accident and $1,000,000.00 for property
damage.
r. No tenant shall purchase spring water, ice, coffee, soft drinks,
towels or other like service, from any company or persons whose repeated
violations of the Building regulations have caused, in Landlord's opinion, a
hazard or nuisance to the Building and/or its occupants.
s. Landlord reserves the right to exclude from the Building at all
times any person who is not known or does not properly identify himself/herself
to the Building management or night watchman on duty. Landlord may at its
option, require all persons admitted to or leaving the Building between the
hours of 6:00 P.M. and 8:00 A.M., Monday through Friday, and at all times on
Saturdays, Sundays and legal holidays, to register. Tenant shall be responsible
for all persons for whom he authorizes entry into or exit out of the Building,
and shall be liable to Landlord for all acts of such persons.
t. The Demised Premises shall not be used for lodging or sleeping or
for any illegal purpose. The Demised Premises shall never, at any time, be used
for any immoral or illegal purposes.
u. Landlord shall not maintain suite finishes which are nonstandard,
such as kitchen appliances, wallpaper, special light, etc. However, should the
need for repairs arise, at Tenant's request, Landlord will arrange for the work
to be done at the Tenant's expense. Tenant shall have the right to select a
contractor for said repairs subject however to Landlord's reasonable approval.
v. No auction sales shall be conducted in the Building without
Landlord's consent.
w. No tenant shall use any other method of heating than that provided
by the Landlord without the Landlord's consent, except for the reasonable use of
space heaters, which approval is subject to Landlord's reasonable consent, which
consent shall not be unreasonably withheld, conditioned, or delayed.
x. When reasonably necessary to control the climate, and upon request
of Landlord, Tenant shall keep window coverings closed at the appropriate time
of day to prevent direct solar penetration of the Premises.
y. Tenant shall be allowed reasonable use of space coolers and
dehumidifier in Premises, subject to Landlord's consent, which shall not be
unreasonably withheld, conditioned, or delayed.
Landlord agrees to advise Tenant in writing of any additions to, deletions from,
or changes in the foregoing Rules and Regulations. In the event that Tenant is
in violation of any Building rule or
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regulation, Landlord shall notify Tenant in writing of the same, and shall allow
Tenant a reasonable period of time within which to comply with such rule and
regulation. Failure of Tenant to comply within such period of time shall
constitute a material default under the terms and conditions of this Lease.
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EXHIBIT "C"
APPROVED BLUEPRINTS
TO BE ATTACHED
UPON COMPLETION BY ARCHITECT
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