LEASE
THIS LEASE, Made and entered into as of the 27th day of March, 1998, by and
between DOLLAR TREE STORES, INC., a Virginia corporation, having its principal
office at 500 Volvo Parkway, Chesapeake, Virginia 23320 (herein called
"Landlord") and RAYTHEON SERVICE COMPANY, a Delaware corporation, having its
principal office at 141 Spring Street, Lexington, Massachusetts 02173, (herein
called "Tenant").
W I T N E S S E T H:
IN CONSIDERATION of the covenants and agreements herein contained and to be
performed on the part of Tenant and the payment of the rental herein reserved
and for other good and valuable consideration, Landlord and Tenant hereby agree
as follows:
1. Premises. Landlord hereby demises and leases to Tenant, and Tenant hereby
takes and Leases from Landlord, those certain parcels of land, together with the
buildings, improvements and equipment located thereon and all easements
appurtenant thereto, which are leased by Landlord from DMK Associates and as
more particularly described in Exhibit A attached hereto and hereby made a part
hereof. Said premises are herein referred to as the "premises" or the "demised
premises". The premises consists of a parcel of land containing approximately
ten (10) acres on which a warehouse containing approximately 207,000 square feet
(of which 21,000 square feet is finished for office use), 232 parking spaces and
approximately 2.5 acres of paved truck and trailer parking are located. Personal
property and fixtures, including but not limited to, warehouse racking, modular
furniture, telephone system and security systems, are hereby leased and shall be
deemed to be a part of the demised premises. The premises are acknowledged by
Tenant to be in good physical condition and otherwise suitable for the use set
forth herein and are accepted by Tenant "as is", in their present condition on
the date hereof.
2. Term.
a. Initial Term. The term of this Lease, unless sooner terminated as
herein provided, shall be for a term of ten (10) Lease Years commencing on March
1, 1998 (the "Commencement Date"). Landlord shall provide notice to Tenant of
the date the demised premises are available for occupancy by Tenant and Tenant
may take possession of the premises prior to March 1, 1998,
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provided Tenant provides Landlord with certificates of insurance as required by
Section 10 hereof and Tenant gives Landlord notice of the date Tenant first
takes possession of the premises. "Lease Year" as used in this Lease shall mean
the period from the first day of the term hereof to the last day of the twelfth
full calendar month thereafter and each and every successive twelve (12) month
period during the term hereof.
b. Prime Leases. As a material inducement to Tenant to execute this
Lease, Landlord and DMK Associates, jointly and severally, hereby represent to
Tenant that:
(i) the following are all of the outstanding and subsisting
leases related to the premises:
o Lease (Parcel 31) dated October 1, 1991, between
DMK Associates, as Lessor, and Only One Dollar,
Inc., as Lessee; and
o Lease (Parcel 29) dated October 1, 1991, between DMK
Associates, as Lessor, and Only One Dollar, Inc., as
Lessee.
The foregoing Leases are referred to herein as the "Prime
Leases".
(ii) the term of the Prime Leases runs until December 31,
2009; and
(iii) notwithstanding any greater obligations imposed on, or
lesser rights granted to Landlord by DMK Associates under the Prime Leases, so
long as Tenant is in compliance with this Lease in all material respects,
neither Landlord nor DMK Associates will take any action to disturb Tenant's
occupancy and quiet enjoyment of the premises, by way of ejectment or otherwise.
For the ten (10) year term hereof, Landlord covenants and agrees to pay
all rents and to comply with all terms, covenants and conditions of the Prime
Leases and, so long as Tenant is in compliance with the terms hereof, Tenant's
occupancy and quiet enjoyment of the premises shall not be disturbed in any way
or respect by DMK Associates. DMK Associates joins herein to evidence its full
consent to all of the terms and conditions of this Lease, agrees to assume and
be bound by all of the terms, covenants and conditions hereof, and shall perform
the duties, obligations and liabilities of the Landlord hereunder in the event
that the Prime Leases are ever terminated pursuant to their
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terms prior to the expiration of this Lease to the same extent as if DMK
Associates were itself Tenant's Landlord. The word "Landlord" as used herein
shall include both DMK Associates and Dollar Tree Stores, Inc., as their
responsibilities and interests might appear and shall be liberally construed
generally as both DMK Associates and Dollar Tree Stores, Inc., and DMK
Associates hereby guarantees the duties, obligations and liabilities of Landlord
hereunder from and after the expiration or earlier termination of the Prime
Leases.
3. Rent.
a. Base Rent. Tenant covenants and agrees to pay to Landlord as rent
for the demised premises, without offset and without previous demand therefor,
Base Annual Rent in the following amounts in equal monthly installments on the
first day of each calendar month of the term hereof in advance:
Lease Years 1 through 10
$776,250.00/year
$64,687.50/month
Notwithstanding the foregoing, one-half of the Base Rent for the months of March
and April, 1998, shall be abated and the first full monthly installment of Base
Rent shall be due and payable on May 1, 1998. Tenant's occupancy prior to March
1, 1998, shall not require the payment of Base Rent.
b. Additional Rent. All other payments and charges due and payable by
Tenant to Landlord under the terms and provisions of this Lease shall constitute
additional rent and shall commence to accrue and be payable from and after
Tenant's occupancy of the premises.
c. Place for Payment of Rent. Rent shall be payable at the office of
the Landlord as set forth above or at such other place as Landlord shall have
given Tenant written notice of at least thirty (30) days in advance.
d. Late and Returned Check Charges. Tenant covenants and agrees to pay
Landlord as a late charge of two percent (2%) of the amount due on all overdue
rent and all other overdue sums payable to Landlord under this Lease, if said
sums have not been paid by the fifth day following their respective due dates.
In addition to the late charge set forth in the preceding sentence, if any
portion of the rent or any other sum payable by Tenant to Landlord hereunder
shall be due and unpaid for more than thirty
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(30) days, then Tenant shall pay Landlord interest on said past due amount at
the prime rate of interest as announced from time to time by First Union
National Bank of Virginia (or its successor) plus two percent (2%) per annum, as
the same may be adjusted from time to time. Interest on said past due sum(s)
shall commence to accrue on the due date thereof and shall continue to accrue
until paid. Landlord expressly reserves all other rights and remedies provided
for herein and by law with respect to non-payment or late payment of the rent
and other sums payable to Landlord hereunder.
4. Taxes, Utilities, and Maintenance.
a. Taxes.
(1) Tenant shall, during the term of this Lease, as additional
rent, pay and discharge punctually, as and when the same shall become due and
payable, all property taxes (both real and personal), special and general
assessments, impact fees, other governmental impositions and charges of every
kind and nature whatsoever, extraordinary as well as ordinary whether billed in
the name of DMK Associates, Landlord or Tenant (herein referred to as "Taxes"),
and each and every installment thereof which shall be charged, levied, assessed
or imposed, with respect to the premises or any part thereof, together with all
interest or penalties thereon, during the term of this Lease.
(2) To the extent that the same may be permitted by applicable
law, Tenant shall have the right to apply for the conversion of any assessment
for local improvements assessed against the premises or any part thereof during
the term of this Lease into annual, semi-annual or quarterly installments, and
upon such conversion Tenant shall pay and discharge punctually said installments
as they become due and payable. Landlord agrees to permit the application for
the foregoing conversion to be filed in Landlord's name, if necessary, and shall
execute any and all documents requested by Tenant to accomplish the foregoing
result, at Tenant's sole cost and expense.
(3) Tenant shall be deemed to have complied with the covenants
of this subparagraph 4.a. if all Taxes shall have been paid either within any
period allowed by law or by the governmental authority imposing the same during
which payment is permitted without penalty or interest or before the same shall
become a lien upon the premises or any part thereof. Tenant shall produce and
exhibit to Landlord satisfactory evidence of
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such payment within thirty (30) days of the payment of the Taxes, or any
installment thereof.
b. Apportionment of Taxes. All Taxes, including, without limitation,
any assessments that have been converted into installments as set forth in
Subparagraph a.(2) above, which shall become payable during each of the calendar
or fiscal years, as the case may be, in which the term of this Lease commences
or terminates, shall be apportioned pro rata between Landlord and Tenant in
accordance with the respective portions of such year during which the term of
this Lease shall be in effect.
c. Contest of Taxes. Tenant shall have the right to protest, contest or
review all such Taxes by legal proceedings or in such other manner as it may
deem suitable (which, if instituted, Tenant shall conduct promptly at Tenant's
sole cost and expense, and free of any expense to Landlord). Landlord shall
cooperate in all reasonable respects with any such effort by Tenant and shall
execute documents in respect thereof, including, as appropriate, and as may be
required by the governmental authority imposing the Taxes, a special or limited
appointment of Tenant as Landlord's agent solely for the purpose of contesting
the taxes. Notwithstanding the foregoing, Tenant shall promptly pay all such
Taxes if at any time the premises or any part thereof shall then be subject to
forfeiture, without right of stay or appeal, or if Landlord shall be actually
subject to, or threatened by any public authority with any criminal liability,
arising from the non-payment thereof.
Landlord shall have the right, but not the obligation, to pay any
uncontested and unpaid delinquent Taxes, or, if Tenant is contesting any Taxes
and the Landlord is nevertheless about to be divested of title to the demised
premises. In the former case, (but not the latter), Landlord may add the amount
so paid, together with interest thereon at the rate of eighteen percent (18%)
per annum, to the next installment of Base Annual Rent or to any subsequent
installment of said rent, and the same shall be collectable as additional rent
in the same manner and with the same remedies as if it had been originally
reserved as rent hereunder. Landlord shall give Tenant written notice of any
payments made by Landlord pursuant hereto.
d. Tax Refunds. Landlord covenants and agrees that if there shall be
any refunds or rebates on account of the Taxes paid or reimbursed to or on
behalf of Landlord by Tenant under the provisions of this Lease, such refund or
rebate shall belong and, if paid to Landlord, be paid over to Tenant. Landlord
shall,
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upon the request of Tenant, sign any receipts that may be necessary to secure
the payment of any such refund or rebate, and shall pay over to Tenant such
refund or rebate as received by Landlord.
e. Taxes for Which Tenant is Not Responsible. Nothing herein contained
shall require or be construed to require Tenant to pay any income, franchise,
gross receipts, corporation, capital levy, excess profits, revenue, inheritance,
gift or estate tax by whatsoever authority imposed or howsoever designated that
are or may be imposed upon DMK Associates, Landlord, their successors or
assigns.
f. Utilities. Tenant shall pay for the following utilities
and shall arrange for said utilities to be billed directly to
Tenant:
(1) all water, gas, electricity and fuel consumed on
the premises;
(2) all sewer charges assessed by the municipal authority
having jurisdiction;
(3) all storm water management fees or charges assessed by the
municipal authority having jurisdiction;
(4) all assessments for public improvements relating to the
construction, installation or improvement of a sewer system and/or sewage
treatment plant whether or not such assessments are measured by the amount of
water consumed by Tenant on the demised premises; and
(5) all costs associated with trash and garbage pick up and
removal.
g. Maintenance by Tenant. (1) Tenant shall at all times during the term
of this Lease and at its sole cost and expense, keep the premises, the building
which forms a part of the premises, the components thereof and the appurtenances
thereto, including without limitation the heating systems, air conditioning
systems, hydraulic systems, sprinkler systems, electric system, telephone
system, security system, toilets, plumbing lines, windows, doors, glass, modular
furniture, storage racks, fixtures and equipment, and the driveways, paved
parking areas and any landscaping located on the premises in good condition of
repair, making such replacements as may be necessary from time to time, it being
expressly understood that Tenant will be obligated to make all repairs and
replacements necessary to keep the premises, the building that forms a part of
the premises, the components thereof and the appurtenances thereto in good order
and condition during the term hereof, except for the
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items to be replaced or repaired (during the first Lease Year) by
Landlord as specifically set forth in subparagraph 4.h. below.
(2) Tenant shall keep the premises free from insects, pests
and vermin of all kinds.
(3) Tenant shall surrender the premises, including the
components thereof and the appurtenances thereto as set forth in subparagraph
4.g. above, at the end of this Lease in the same condition in which Tenant has
agreed to keep the same during the term hereof, reasonable wear and tear and
damage by casualty or condemnation excepted. Accordingly, Tenant shall remove
any leasehold improvements, fixtures, trade fixtures and equipment that Tenant
has made to or installed in the premises during the term hereof and shall repair
any and all damages caused by said removal. This obligation of Tenant to restore
the premises and remove its improvements, fixtures and equipment shall
specifically survive the expiration or earlier termination of the term hereof.
(4) In the event Tenant shall fail to perform such maintenance
or make such repairs or replacements, as called for by this subparagraph 4.g.,
within thirty (30) days of the date Landlord gives notice to Tenant of the need
for such maintenance, repairs or replacements, Landlord may, but shall not be
required to, perform such work and charge the actual amount of the expense
therefor to Tenant, which shall be payable by Tenant to Landlord within thirty
(30) days of the presentation to Tenant of Landlord's invoice listing the costs
incurred by Landlord.
h. Replacements by Landlord.
(1) Landlord agrees that it shall be responsible for the
replacement of the roof and structural components of the building that forms a
part of the premises, but shall not be responsible for the routine maintenance
and repair thereof; said maintenance and repair being the sole responsibility of
Tenant pursuant to subparagraph 4.g. above.
(2) Landlord warrants that the heating systems, air
conditioning systems, hydraulic systems, electric system and plumbing systems
will be in good working order on the commencement of the term hereof and for the
first Lease Year. Pursuant to such warranty, Landlord shall be responsible for
the costs of repairs to said systems for the first Lease Year, unless the need
for repair of said systems arises from the alteration or addition to said
systems by Tenant, the failure of Tenant to provide routine maintenance of said
systems or from the negligence or misuse of said systems by Tenant, in which
event,
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Tenant shall bear the costs of maintenance and repair of said system(s).
5. Use of Premises. The demised premises shall be used solely as a service shop,
light assembly, overhaul, repair, office and warehouse facilities, and for no
other purpose without Landlord's consent.
6. Operations. Tenant shall operate its business on the demised premises at all
times during the term of this Lease, except for temporary closures for
remodeling or repairs or caused by a casualty or condemnation; provided,
however, that Tenant may leave the Premises vacant for business reasons so long
as such vacancy does not affect the scope or pendency of the insurance coverage
for the Premises. In the event Tenant leaves the Premises vacant for ninety (90)
days, Tenant shall take all reasonable actions to maintain the security of the
Premises and maintain the building, improvements, systems, fixtures and
equipment located on the Premises so that said building, improvements, systems,
fixtures and equipment remain in good condition and do not deteriorate. In order
to ensure that Tenant is complying with this obligation, Landlord shall have the
right to inspect the premises and test the condition of the systems and
equipment on a monthly basis for so long as Tenant leaves the premises vacant.
7. Compliance with Laws.
a. Tenant to Comply with Laws. During the term of this Lease, Tenant
shall, at its own cost and expense, promptly observe and comply with all present
and future laws, ordinances, requirements, orders, directives, rules and
regulations of all governmental or quasi-governmental authorities or agencies
affecting the premises or any part thereof or the business conducted thereon,
whether the same are in force at the commencement of the term of this Lease or
may in the future be passed, enacted or directed. Tenant shall pay all costs,
expenses, liabilities, losses, damages, fines, penalties, claims and demands,
including reasonable attorneys' fees, that may in any manner arise out of or be
imposed because of the failure of Tenant to comply with the covenants of this
Section 7, and shall indemnify and hold Landlord harmless with respect to the
same. The premises shall not be used for any illegal or immoral purpose.
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b. Right to Contest. Tenant shall have the right to contest by
appropriate legal proceedings diligently conducted in good faith, in the name of
the Tenant, or Landlord (if legally required), or both (if legally required),
without cost or expense to Landlord, the validity or application of any law,
ordinance, rule, regulation, or requirement of the nature referred to in
subparagraph 7.a. and, if by the terms of any such law, ordinance, order, rule,
regulation or requirement, compliance therewith may legally be delayed pending
the prosecution of any such proceeding, Tenant may delay such compliance
therewith until the final determination of such proceeding so long as such delay
does not materially adversely affect the premises or Landlord's interest in the
premises.
c. Landlord's Cooperation. Landlord agrees to execute and deliver any
appropriate papers or other instruments that may be necessary or proper to
permit Tenant to contest the validity or application of any such law, ordinance,
order, rule, regulation or requirement and to cooperate fully with Tenant in
such contest, provided Tenant bears all costs and expenses incurred by Landlord
in cooperating with Tenant.
8. Trade Fixtures and Alterations.
a. Fixtures. Tenant shall have the right to install its trade fixtures
in the premises and such installation shall be at the risk and expense of
Tenant. All trade fixtures installed in the premises by Tenant shall remain the
property of, and shall be removed by, Tenant at the expiration of this Lease,
and Tenant agrees promptly to repair all damages to the Leased Premises
occasioned by the removal of said fixtures. Any fixtures that Tenant fails to
remove at the expiration of this Lease shall become the sole property of
Landlord, and Tenant shall reimburse Landlord for the actual costs incurred by
Landlord in removal and disposal of such fixtures, which obligation on the part
of Tenant shall expressly survive the expiration or earlier termination of the
term hereof. Notwithstanding the foregoing, Tenant shall have no interest in and
no right to remove the storage racks, modular furniture, telephone system, and
security system leased to Tenant pursuant to the terms hereof and deemed to be a
part of the premises described herein.
b. Alterations. During the term hereof, Tenant shall not make any
alterations, additions, improvements, or other changes to the premises costing
more than $50,000.00, without the prior written approval of Landlord and in such
cases only in accordance
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with plans and specifications approved in writing by Landlord. All alterations,
additions or improvements made by Tenant to the premises shall comply with all
applicable laws, ordinances, codes and regulations. If required hereunder,
Tenant shall submit its proposed plans and specifications to Landlord. If the
costs of the proposed alterations, additions or improvements exceed $50,000,
then Tenant shall submit to Landlord a certificate from a licensed architect,
engineer or other building official stating that Tenant's plans and
specifications comply with all applicable laws, ordinances, codes and
regulations. In such cases, Landlord shall either approve said plans and
specifications or provide Tenant with specific items which Landlord does not
approve within fifteen (15) days of receipt of said plans and specifications. If
Landlord does not respond to Tenant within said fifteen (15) days, said plans
and specifications shall be deemed to be approved. Landlord shall not impose any
charge upon Tenant for the review or approval of Tenant's plans and
specifications. On or before the termination of this Lease, Tenant shall remove
any such alterations or additions and repair any damage to the premises
occasioned by their installation or removal and restore the premises to
substantially the same condition as existed prior to the time when any such
alterations or additions were made and this obligation of Tenant to Landlord
shall specifically survive the expiration or earlier termination of the term
hereof.
9. Limited Right to Sublease or Assign.
a. General Prohibition; Limited Exceptions. Without Landlord's prior
written consent, such consent not to be unreasonably conditioned, delayed,
denied or withheld, Tenant may not sublease the premises nor assign its interest
in this Lease for a use that differs from Tenant's use, except that Tenant may,
without Landlord's consent, sublet supporting facilities (such as a shipping
department or a billing department) on the premises in the ordinary course of
Tenant's business and Tenant may sublet the premises to a subsidiary or
affiliated corporation which is under common control of Tenant or Raytheon
Company, a Delaware Corporation. In the event of a sublease of the premises or
assignment of this Lease, Tenant shall remain primarily liable to Landlord for
the performance of all of the Tenant's obligations hereunder.
b. Sublease Terms. Tenant shall make no subleases that extend beyond
the term of this Lease, except with the Landlord's prior written consent.
Landlord shall accept or reject such
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subleases within sixty (60) days of its receipt thereof and if Landlord fails to
respond within said sixty (60) day period then such subleases shall be deemed
accepted by Landlord.
c. Mortgage of Leasehold. Without the prior written consent of
Landlord, which consent Landlord may grant or deny in its sole and absolute
discretion, Tenant may not mortgage or otherwise encumber its interest in this
Lease, in the premises covered by this Lease or the personal property and
fixtures leased to Tenant by Landlord. If Landlord does consent to Tenant's
encumbering its interest in this Lease, it shall be an express condition of said
consent that the holder of said mortgage provides to Landlord copies of all
notices either given by Tenant to said holder or given by said holder to Tenant.
10. Insurance.
a. Property Insurance. Tenant covenants that it will keep the demised
premises insured against damage by fire, extended coverage and other perils, in
an amount not less than 100% of the replacement cost of all of the buildings and
improvements located on the demised premises. Said insurance shall designate the
Landlord as an additional insured and loss payee, as its interests may appear.
The following shall apply to the insurance provided by Tenant pursuant to the
terms hereof:
(1) Tenant shall maintain property damage insurance on an
all-risk form for the full replacement value of the premises, and all of the
buildings, improvements and fixtures owned by Landlord, with responsible
insurance companies permitted to insure risks in Virginia, reasonably
satisfactory to the Landlord, naming Landlord as an additional insured and loss
payee, as its interests may appear, and providing for at least thirty (30) days'
written notice to Landlord prior to amendment, modification, termination or
cancellation thereof. With regard to Landlord's personal property that is leased
by Landlord to Tenant hereunder, Tenant may self insure said personal property
against loss or damage, provided that at the termination of this Lease, Tenant
shall return said personal property or suitable replacements therefor in the
same condition as when leased to Tenant, reasonable wear and tear excepted.
(2) During the course of any construction, reconstruction,
addition, alteration or repair of the building or improvements located on the
premises, Tenant shall maintain builder's risk insurance on a completed value
form against "all risk of physical loss," naming Landlord as an additional
insured
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and loss payee, including collapse and transit coverage, covering the total
value of work performed and equipment, supplies and materials furnished.
(3) Certificates of insurance duly signed by the agent issuing
the policies and endorsements thereto shall be delivered to the Landlord
annually until the termination of this Lease. Each of the above-described
certificates of insurance shall contain a provision stating that the policies
cannot be materially amended, modified, cancelled or terminated without giving
at least thirty (30) days' prior written notice to the Landlord. In the event
Tenant receives notice that any such insurance will lapse, be terminated or
otherwise become unavailable, then Tenant shall, prior to the date of such
lapse, termination or unavailability, provide replacement policies in form and
substance similar to that theretofore in place in the same principal amount of
such prior policy of insurance. Not less than thirty (30) days prior to the
expiration of any insurance policy, Tenant shall deliver to Landlord
satisfactory evidence of the renewal of such policies and the payment of the
premium therefor. The insurance coverage required herein may be provided under
blanket policies, which insure the demised premises as well as other properties
owned or leased by Tenant (or its affiliates).
b. Liability Insurance. Tenant further agrees that it shall provide at
its sole expense, and keep in force during the term of this Lease, comprehensive
general liability insurance in a good and solvent insurance company or companies
licensed to do business in the Commonwealth of Virginia, and reasonably
satisfactory to Landlord, in the amount of Three Million Dollars ($3,000,000)
combined single limit with respect to injury, death or property damage. Tenant
agrees to deliver certificates of such insurance to Landlord at the beginning of
the term of this Lease and thereafter not less than thirty (30) days prior to
the expiration of any such policy. Said insurance shall be non-cancelable
without thirty (30) days' written notice to Landlord.
c. Waiver of Subrogation. All insurance policies carried by Tenant and
Landlord, including but not limited to contents, fire, and casualty insurance,
shall expressly waive any right on the part of the insurer to be subrogated
against the other party or parties named on said policies.
d. Workers' Compensation. Tenant further agrees that it shall carry
workers' compensation insurance having limits not
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less than those required by Virginia and Federal law, if applicable, and
covering all persons employed by Tenant in the conduct of its operations on the
premises. Said policy or policies shall be written by good and solvent insurance
company or companies licensed to do business in the Commonwealth of Virginia and
reasonably satisfactory to Landlord.
e. Additional Provisions Regarding Insurance.
(1) In the event Tenant fails to cause the insurance
policies described in this Section 10 to be written and pay the premiums
therefor and deliver such policies and renewal certificates thereof to Landlord
(notwithstanding Landlord's right to declare an Event of Default), Landlord
shall nevertheless have the right, without being obligated to do so, but only
after reasonable prior written notice has been furnished to Tenant of Landlord's
intention to do so, to effectuate such insurance and pay the premiums therefor.
All such premiums paid by Landlord shall be repaid by Tenant to Landlord on
demand as additional rent.
(2) Tenant shall promptly comply with and conform to all
provisions of each such insurance policy and all requirements of the insurers
thereunder, applicable to Tenant or any portion of the demised premises.
f. Indemnification of Landlord. Tenant covenants and agrees to
indemnify, defend, protect and save DMK Associates, Landlord, their partners,
officers, directors, employees and agents (and their heirs, successors and
assigns) harmless from and against any and all claims, demands, expenses,
losses, suits and damages as may be occasioned by reason of (1) any accident or
incident occurring on the premises during the term of this Lease, causing injury
to persons or damage to property (including the premises), (2) the failure of
Tenant fully and faithfully to perform all material obligations and observe all
material conditions of this Lease, and (3) the negligence or other tortious act
of Tenant, any permitted subtenant, or anyone on the premises on behalf of or at
the invitation or right of Tenant or any permitted subtenant.
11. Damage by Fire or Other Casualty.
a. Rights of Parties. In the event of damage to or destruction of the
building or improvements located on the premises by fire or other casualty,
that, in the reasonable opinion of Tenant, materially impairs Tenant's continued
use of the building for Tenant's operations for a period in excess of
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ninety (90) days, Tenant may elect to terminate this Lease. Such election shall
be made within ten (10) working days after the Landlord has furnished to Tenant
a plan for, and an estimate of the cost of, repair of the damage. Such plan and
estimate shall be so furnished as promptly as practicable, but in no event later
than ten (10) working days after the damage occurs. Tenant shall provide thirty
(30) days' prior written notice to Landlord of Tenant's election to terminate
the Lease and the date of termination shall be no earlier than thirty (30) days
after the date of Tenant's notice to Landlord. In the event Tenant opts to
terminate this Lease, all insurance proceeds related to the premises, including
the building, the components thereof, the appurtenances thereto and the systems,
fixtures and equipment leased by Landlord to Tenant pursuant to the terms hereof
shall be payable to Landlord and Tenant hereby waives any rights therein or any
claims against either Landlord or the insurer related thereto. Insurance
proceeds, if any, which relate solely to the value of Tenant's estate, equipment
and personal property may be retained by Tenant.
b. Tenant's Rebuilding. In the event of fire or other casualty and
provided this Lease is not terminated pursuant to the terms of the preceding
subparagraph, then Tenant shall proceed diligently to restore the damaged
property to substantially the same condition that existed prior to the damage or
destruction. Prior to the commencement of Tenant's restoration work, Tenant
shall submit to Landlord for its approval the name and experience or
qualifications of the general contractor selected by Tenant to do the work and
the plans and specifications for the restoration or renovation work. The plans
and specifications for and Tenant's restoration or renovation work shall comply
with all applicable laws, ordinances, codes and regulations. In the event the
cost of Tenant's work exceeds $50,000, then in addition to submitting plans and
specifications, Tenant shall submit to Landlord a certificate from a licensed
architect, engineer or other building official stating that Tenant's plans and
specifications comply with all applicable laws, ordinances, codes and
regulations. Landlord shall either approve said general contractor and said
plans and specifications or provide Tenant with specific reasons why or items
which Landlord does not approve within fifteen(15) days of receipt of said plans
and specifications. If Landlord does not respond to Tenant within said fifteen
(15) days, said general contractor and said plans and specifications shall be
deemed to be approved.
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Landlord shall not impose any charge upon Tenant for the review or approval of
Tenant's plans and specifications or any change order submitted in accordance
with the terms hereof. Tenant shall commence its work within thirty (30) days of
receipt of Landlord's approval of Tenant's plans and specifications and
diligently prosecute its work to completion. In the event the Tenant or the
general contractor desire to make a change in the scope of the work as shown on
the plans and specifications that have been approved by Landlord, then such
change must also be approved by Landlord. Tenant shall submit a copy of the
requested change order together with all drawings and data supporting the change
order to Landlord for its approval. Landlord shall either approve said change
order or provide Tenant with specific objections to the proposed change order
within fourteen (14) days of receipt of the change order and supporting data. If
Landlord does not respond within said fourteen (14) days, said change order
shall be deemed to be approved.
c. Payments for Rebuilding. If the cost of Tenant's restoration or
renovation work exceeds $250,000, prior to undertaking any material portion of
the proposed work, Tenant shall furnish Landlord with a copy of its plan for
such work and afford Landlord ten working days to comment thereon. To the extent
commercially reasonable, Tenant shall endeavor to accommodate Landlord's
comments thereon so long as there is not a material adverse impact on cost or
schedule for the proposed work. In Tenant's contract with the general contractor
for the work, Tenant shall require such contractor to submit to Tenant (with a
copy to Landlord), on or before the twenty-fifth of each month, a detailed
invoice for the value of the work performed and materials furnished for the work
(if the work is done on a time and materials, cost-plus or other like basis) or,
if the work is performed on a fixed price or similar basis, a certificate
detailing milestones or progress achieved. Landlord and Tenant shall promptly
thereafter together inspect the work for the purposes of verifying contractor's
statements. Failure of Landlord to perform such inspection within five working
days shall constitute Landlord's agreement to Tenant's views. Landlord and
Tenant shall make a good faith effort to resolve any disagreements concerning
contractor's work or progress; provided, however, that Landlord shall have no
right to contact Tenant's contractor directly or to issue instruction or
direction of any kind to such contractor. Upon completion of construction, and
as a condition of final payment to contractor, contractor shall
15
furnish Tenant (with a copy to Landlord) of: (1) a certificate that contractor
has paid all materialmen, subcontractors, vendors and laborers for goods and
services connected in any way with the work; (2) contractor's fully-executed and
acknowledged mechanic's lien release; and (3) if required, a certificate of
occupancy.
d. Delay in Rebuilding. The validity and effect of this Lease shall not
be impaired by the failure of Tenant to complete the repair or restoration of
the building or any improvements to the premises within any given period after
commencement of the work, even if Tenant had in good faith notified Landlord
that the repair work could be completed within a shorter period, provided that
Tenant proceeds diligently with such repair or restoration and uses all
reasonable efforts to have the work completed.
e. Tenant's Continuing Obligations. In the event of fire or other
casualty and this Lease is not terminated, then the Base Annual Rent and all
other sums payable hereunder, shall be equitably abated based upon Tenant's loss
of use of the premises until re-occupancy.
12. Mechanic's and Materialmen's Liens. Tenant covenants and agrees to keep the
premises free and clear of mechanic's and materialmen's liens, which liens may
arise from any repairs, alterations or improvements being performed by Tenant or
from Tenant's repair or restoration of the building and improvements following
damage to or destruction of the building and improvements caused by fire or
other casualty. The foregoing repairs, alterations, improvements or restoration
are to be performed at the sole cost of and for the benefit of the Tenant and
not the Landlord. In the event a Memorandum of Mechanic's Lien is filed against
the premises as the result of work performed by Tenant pursuant to the terms
hereof, Tenant shall have said lien released (by payment, bonding or otherwise)
within thirty (30) days of the filing of said lien. Tenant shall be solely
responsible for the defense of said mechanic's or materialman's claim and all
costs (including reasonable attorney's fees) incurred in said defense, including
the cost of defending Landlord or its interest in the premises, and Tenant shall
indemnify Landlord for said costs, if not paid initially by Tenant.
13. Condemnation.
a. Entire Demised Premises. If after the execution of this
Lease and before the expiration of the term hereof, the entire
16
demised premises shall be taken by right of eminent domain for any public or
quasi-public purpose, then the term of this Lease shall terminate as of the time
when Landlord shall be divested of its interest in the demised premises, and the
rent and charges, shall be apportioned or refunded as of the date of
termination. Tenant shall pay all rent due and perform all other covenants
hereof up to the time when such possession is required.
In the initial phase of the condemnation proceedings, Landlord shall
permit Tenant to participate in the condemnation proceeding described in Va.
Code ss.25-46.21 as provided for in Va. Code ss.25- 46.21:1 and to provide
evidence of the value of the improvements made by Tenant to the demised premises
in an effort to maximize the fair market value of the property and the award
made in such proceedings. Once the award is determined, the Landlord shall
receive the amount allocated for the taking of the land comprising the demised
premises and all buildings, improvements and fixtures located thereon owned and
existing on the date hereof by Landlord and Tenant shall receive the amount
allocated for the taking of all permanent leasehold improvements made by Tenant
to the premises and Tenant's moving expenses. Nothing contained herein shall
preclude Tenant from asserting a claim in the second phase of the condemnation
proceedings that Tenant is entitled to be compensated from the condemnation
award for Tenant's costs incurred in the proceeding and for the value of
Tenant's leasehold interest, if any.
b. Substantial Taking. In the event of a taking of less than all of the
demised premises or the building located thereon by right of eminent domain or
voluntary conveyance in lieu thereof, then, if in the reasonable opinion of
Tenant the remainder of the premises could no longer feasibly be used by Tenant
for the operation of its business, then Tenant, at its option, may terminate the
term of this Lease by giving Landlord notice of its election within ninety (90)
days after the receipt of notice of such taking, said termination to be
effective not less than thirty (30) days after the date on which said notice of
termination is given to Landlord. In the event Tenant shall elect to terminate
the term of this Lease as provided in the preceding sentence, Tenant shall pay
all rent due and perform all other covenants hereof up and to the time when such
possession is required and thereafter Tenant shall have no further obligation to
perform any of the covenants of this Lease as to the premises, except as set
forth in this paragraph.
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c. Minor Taking. In the event of a taking of less than all of the
premises by right of eminent domain or voluntary conveyance in lieu thereof and
Tenant does not elect to terminate this Lease as permitted under subparagraph
13.b., then the award or payment attributable to the taking of the premises
shall be paid to and used by Tenant for restoration and Tenant shall promptly
commence and with due diligence restore or rehabilitate to the extent reasonable
in light of the taking and the resultant new circumstances the portion of the
premises and building located thereon remaining after the taking to
substantially the same condition and tenantability as existed immediately
preceding the taking. During any period of restoration, the amount of the rent
and charges shall be equitably abated or reduced, based upon Tenant's loss of
use of the premises until re-occupancy by Tenant. Base Annual Rent for the
remainder of the Term shall be reduced by the amount determined by multiplying
$3.75 by the number of square feet by which the useable area of the building is
reduced as the result of the condemnation. The amount by which the Base Annual
Rent shall be reduced shall be set forth in a written memorandum signed by both
Landlord and Tenant.
14. Landlord Not to Encumber Tenant's Interests. Landlord hereby covenants and
agrees that during the term of this Lease, Landlord shall not have the right or
power to mortgage or otherwise create any security interest in or place other
liens or encumbrances upon Tenant's personal property, fixtures or equipment or
affecting Tenant's interest in the demised premises, or any part thereof.
However, nothing contained herein is intended to limit the right of Landlord to
mortgage its own interest in the premises and to assign its interest in this
Lease, as collateral for any loan now or hereafter obtained by Landlord.
15. Quiet Enjoyment. Tenant, upon paying the rent and all other sums and charges
to be paid by it as herein provided, and observing and keeping all covenants,
agreements and conditions of this Lease on its part to be kept, shall quietly
have and enjoy the demised premises during the term of this Lease, without
hindrance or molestation.
16. Default by Tenant.
a. Events of Default. Each of the following shall be an
event of default:
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(1) If Tenant commits an event of default which is not cured
within any applicable cure period pursuant to any security agreement which
creates a lien or security interest in any assets of Tenant in favor of Landlord
or its affiliates; or
(2) If Tenant shall default in the payment of Base Annual
Rent, additional rent, or other amounts payable under this Lease, and such
default shall continue for ten (10) working days or more after written notice of
default from Landlord (provided, however, that Landlord shall only be required
to provide such written notice three (3) times during any Lease Year so long as
the Base Annual Rent is paid by means of direct deposit or electronic funds
transfer); or
(3) If Tenant shall default in the payment of any other sums
and charges to be paid by Tenant pursuant to the terms hereof and this default
shall continue for more than fourteen (14) days after Landlord has given to
Tenant written notice of such default in accordance with Section 27 hereof; or
(4) If Tenant shall default in the observance and/or
performance of any of the other terms, covenants, conditions and agreements of
this Lease to be performed by Tenant and any such default shall continue for
more than thirty (30) days after Landlord has given to Tenant written notice of
such default, or if by reason of the nature of such default, it cannot be
corrected within said thirty (30) days, then if Tenant shall not commence to
correct such default within said thirty (30) days and thereafter prosecute the
same to completion with all due diligence; or
(5) If Tenant abandons the premises for a period of thirty
(30) consecutive days (except as the result of a casualty); or
(6) If Tenant makes a general assignment for the benefit of
its creditors, files a voluntary petition under any law relating to bankruptcy
or insolvency, the filing of an involuntary petition by Tenant's creditors
seeking the liquidation or reorganization of Tenant under any law relating to
bankruptcy or insolvency which petition is not dismissed or stayed within sixty
(60) days of filing, or the appointment of a receiver or other custodian to take
possession of all or substantially all of Tenant's assets or its interest under
this Lease; or
(7) If Tenant is insolvent or unable to pay its debts as they
mature, the entry by a court of a decree or order directing the winding up or
liquidation of Tenant or of
19
substantially all of its assets, Tenant taking any action toward the dissolution
or winding up of its affairs, or the attachment, execution or other judicial
seizure of substantially all of Tenant's assets which is not discharged or
bonded off within thirty (30) days of filing.
b. Landlord's Remedies. Upon the happening of any one or more of the
defaults or events of default set forth in subparagraph 16.a., this Lease and
the term hereof shall, at the option of Landlord, upon the date specified in a
notice sent by registered or certified mail in accordance with Section 27
hereof, which date shall not be less than fourteen (14) days after the date of
mailing of such notice by Landlord to Tenant, wholly cease and determine, with
the same force and effect as though the date so specified were the date
hereinabove first set forth as the date of the expiration of the term of this
Lease and thereupon, or at any time thereafter, Landlord may re-enter the
demised premises (subject to the rights of any subtenants to notice of a
physical entry by Landlord), and have possession of the premises and the
buildings and improvements located thereon, or may recover possession thereof in
the manner prescribed by the statute relating to summary proceedings or similar
statutes, it being understood that no demand for the rent and no re-entry for
condition broken and no notice to quit possession or other notices prescribed by
statute shall be necessary to enable Landlord to recover such possession, but
that all right to any such demand and any such re-entry, and any notice to quit
possession or other notices or prerequisites are hereby expressly waived by
Tenant, except as may be required by applicable law.
c. Tenant Liable for Subsequent Rent. In case of default by Tenant,
Tenant will indemnify Landlord against all loss of rent and other payments
provided herein to be paid by Tenant to Landlord between the time of the default
and the expiration of the term of this Lease. It is understood and agreed that
at the time of the default or at any time thereafter Landlord shall use
reasonable efforts to rent the demised premises and parts thereof to mitigate
Landlord's damages. Such reletting shall not release Tenant from any liability
whatsoever, that Tenant shall be liable for the reasonable expenses incurred by
Landlord in connection with obtaining possession of the demised premises and in
connection with any reletting, and that any monies collected from any reletting
shall be applied first to the Landlord's expenses and then to payment of rent
and all other payments due from Tenant to Landlord pursuant to the terms hereof.
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d. Tenant Liable for Landlord's Expenses. Tenant shall pay all costs
incurred by Landlord on account of Tenant's default hereunder, including but not
limited to, collection costs, court costs and reasonable attorneys' fees, as
well as any brokerage fees and costs incurred in connection with any reletting
of the premises. Acceptance by Landlord of delinquent rent after default shall
not entitle Tenant to possession of the demised premises and shall not be deemed
to cure the default.
e. Notices and Cure Periods. No action or proceeding to oust Tenant
from possession or to terminate this Lease shall be brought by Landlord unless
the notices herein specified be first given and the times to cure defaults
hereinabove specified have expired without the defaults having been cured.
f. Remedies Cumulative. It is mutually covenanted and agreed that the
various rights, powers, options and remedies of Landlord contained in this Lease
shall be construed as cumulative and no one of them is exclusive of the other or
exclusive of any rights, priorities or remedies allowed either at law or in
equity.
17. Right of Entry. Subject to the laws of the United States regarding the
protection of classified information (including the requirement for an escort
for persons not having the requisite level of security clearance), Tenant shall
allow Landlord or its representatives, agents or contractors to enter the
premises, at any reasonable time during normal business hours, upon twenty-four
(24) hours prior notice to Tenant, for the purpose of inspecting the same or for
making any repairs that Landlord deems necessary or replacements that Landlord
is obligated to make or for showing the premises to any prospective purchasers
or lenders.
18. Hazardous Materials.
a. Except as expressly permitted hereunder, Tenant shall not cause, or
allow any of Tenant's employees, agents, customers, invitees, licensees,
contractors, assignees or sublessees (collectively, Tenant's Parties) to cause
or permit any Hazardous Materials to be brought upon, stored, manufactured,
generated, blended, handled, recycled, treated, disposed of or used on, under or
about the premises and the building and improvements located thereon, and except
for such activities that are part of the ordinary course of Tenant's business
activities so long as in all cases said Hazardous Materials are used and
disposed of in
21
strict accordance with all Environmental Laws and prior to conducting said
activities Tenant shall have obtained any required permits related to said
Hazardous Materials.
b. Tenant and Tenant's Parties shall comply with all Environmental Laws
and promptly notify Landlord of the presence of any Hazardous Materials on the
premises or any violation of any Environmental Law for which Tenant has received
notice. Subject to the laws of the United States regarding the protection of
classified information (including the requirement for an escort for persons not
having the requisite level of security clearance), Landlord shall have the right
to inspect the premises and to conduct tests and investigations to determine
whether Tenant is in compliance with the provisions hereof. If such tests
indicate the presence of any non-permitted Hazardous Materials resulting from
the activities of Tenant, Tenant shall reimburse Landlord for the cost of
conducting such tests.
c. Tenant shall indemnify, protect, defend and hold harmless Landlord
and its partners, directors, officers, employees, lenders, agents, contractors
and each of their respective heirs, successors and assigns from and against any
and all claims, judgments, causes of action, damages, penalties, fines, taxes,
costs, liabilities, losses and expenses to the extent having arisen at any time
during or after the term hereof as a result (directly or indirectly) of or in
connection with Tenant's breach of any provision of the preceding subparagraphs
or the presence of Hazardous Materials on, under or about the premises as a
result of Tenant's activities or failure to act in connection with the premises.
This indemnity shall include Tenant's allocable portion of the cost of any
required or necessary repair, clean up, or corrective action plan. Neither the
written consent of Landlord to the presence of Hazardous Materials on, under or
about the premises nor the strict compliance by Tenant with all Environmental
Laws shall excuse Tenant from its obligation for indemnification herein.
Tenant's obligations pursuant to the foregoing indemnity shall expressly survive
the expiration or earlier termination of this Lease.
d. The term "Hazardous Materials" shall mean asbestos; radon;
radioactive materials, explosives, any equipment which contains dielectric fluid
containing polychlorinated byphenyls ("PCBs") or "PCB items" (as defined in 40
C.F.R. Sec. 761.3); stored, leaked or spilled petroleum products; or any other
chemical, material or substance which is regulated as a "toxic substance" (as
defined by the Toxic Substance Control Act, 15
22
U.S.C. Sec. 2601 et seq., as amended), a "hazardous waste" (as
defined by the Resource Conservation and Recovery Act, 42 U.S.C.
Sec. 6901 et seq., as amended), or a "hazardous substance" (as
defined by the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sec. 9601 et
seq., as amended), or exposure to which is prohibited, limited or
regulated by any federal, state, municipal, local or other
governmental statute, regulation, ordinance or authority. As
used herein, "Environmental Laws" means any and all Federal,
state or local environmental, health or safety-related laws,
regulations, standards, decisions of courts, ordinances, rules,
codes, orders, decrees, directives, guidelines or permits,
currently existing and as amended, enacted, issued or adopted in
the future which are or become applicable to either Tenant or the
premises.
e. Based upon a Phase I Environmental Site Assessment provided by
Tenant to Landlord, to the knowledge of Landlord, the premises do not contain
any Hazardous Materials and are in compliance with the Environmental Laws on the
date hereof. Landlord shall be responsible for the cost of removal of Hazardous
Materials on the Premises when Tenant takes possession thereof if removal is
required by an agency that is responsible for the enforcement of the
Environmental Laws (e.g. any required removal of asbestos).
19. Brokerage Commission. Landlord shall pay a brokerage commission one-half
(1/2) to Robinson Sigma Commercial Real Estate and one-half (1/2) to S. L.
Nusbaum Realty Co. in the total amount and for the term as set forth in the
separate agreement between Landlord and Robinson Sigma Commercial Real Estate.
Tenant represents to Landlord that Tenant's sole agent involved in the leasing
of the premises is S. L. Nusbaum Realty Co. and that no other agent or broker
has a claim to a commission based upon the actions of Tenant. Landlord
acknowledges that Robinson Sigma Commercial Real Estate is Landlord's sole agent
involved in the leasing of the premises and that no other agent or broker has a
claim to a commission based upon the actions of Landlord. Tenant and Landlord,
respectively, shall each indemnify, defend, protect, and hold the other harmless
from and against any loss, cost or expense (including reasonable attorneys' fees
and costs) resulting from any claim for a fee or commission by any agent or
broker in connection with this Lease
23
of the premises other than Robinson Sigma Commercial Real Estate
(as to Landlord) and S. L. Nusbaum Realty Co. (as to Tenant).
20. Holding Over; Surrender. If Tenant holds over in the premises or any part
thereof after the expiration of the term hereof, such holding over shall
constitute a month-to-month tenancy, at a rent equal to the Base Annual Rent in
effect immediately prior to such holding over plus fifty percent (50%) thereof.
This provision shall not be construed as Landlord's permission for Tenant to
hold over. Acceptance of rent by Landlord following the expiration or
termination of the term hereof shall not constitute a renewal or extension of
the term hereof. Upon the termination of this Lease or Tenant's right to
possession of the premises, Tenant will surrender the premises, the building,
the components and systems thereof and the fixtures and equipment leased to
Tenant herein in good condition and repair, reasonable wear and tear excepted,
and with any improvements, alterations or additions made by Tenant removed as
required in Sections 4 and 8 hereof. Conditions existing because of Tenant's
failure to perform maintenance, repairs or replacements shall not be deemed
"reasonable wear and tear."
21. No Waiver. Failure of Landlord to complain of any act or omission on the
part of Tenant no matter how long the same may continue, shall not be deemed to
be a waiver by Landlord of any of its rights hereunder. No waiver by Landlord at
any time, express or implied, of any breach of any provision of this Lease by
Tenant shall be deemed a waiver of a breach of any other provision of this Lease
or a consent to any subsequent breach of the same or any other provision. No
acceptance by Landlord of any partial payment shall constitute an accord or
satisfaction, but shall only be deemed a part payment on account.
22. Force Majeure. In the event that either Landlord or Tenant shall be delayed,
hindered in, or prevented from the performance of any act required hereunder
(other than the payment of rent) by reason of strikes, lock-outs, labor
troubles, inability to procure materials, failure of power, restrictive
governmental laws or regulations, riots, insurrection, war, or the act, failure
to act, or other reason beyond their control, then performance of such act shall
be excused for the period of the delay and the period for the performance of any
such act shall be extended for a period equivalent to the period of such delay.
24
23. Subordination, Non-disturbance and Attornment. In the event Landlord
encumbers its interest in the demised premises and this Lease, then this Lease
and the estate, interest and rights hereby created shall be subordinate to the
mortgage placed upon the premises or any estate or interest therein. Tenant
agrees that in the event any person, firm, corporation or other entity acquires
the right to possession of the premises, including any mortgagee or holder of
any estate or interest having priority over this Lease, Tenant shall, within ten
(10) days of request by such person, firm, corporation or other entity, attorn
to and become the tenant of such person, firm, corporation or other entity, upon
the same terms and conditions as are set forth herein for the balance of the
term; provided that such substitute landlord agrees in writing not to disturb
and acknowledges Tenant's rights under the terms of this Lease so long as Tenant
is not in default of the terms hereof. Notwithstanding the foregoing, any
mortgagee may, at any time, subordinate its mortgage to this Lease, without
Tenant's consent, by notice in writing to Tenant, and thereupon this Lease shall
be deemed prior to such mortgage without regard to their respective dates of
execution and delivery, and in that event, such mortgagee shall have the same
rights with respect to this Lease as though it had been executed prior to the
execution and delivery of the mortgage. Tenant, within ten (10) days of request
by Landlord, shall execute any such instruments in recordable form as may be
reasonably required by Landlord in order to confirm or effect the subordination
or priority of this Lease, as the case may be, the attornment of Tenant to
future landlords, and the non-disturbance of future landlords to Tenant, in
accordance with the terms of this subparagraph.
24. Entire Agreement. No oral statement or prior written matter shall have any
force or effect. Tenant agrees that it is not relying on any representations or
agreements other than those contained in this Lease. This Lease shall not be
modified or cancelled except by writing subscribed by both parties.
25. Successors and Assigns. The terms "Landlord" and "Tenant" whenever used
herein shall mean only the owner at the time of Landlord's or Tenant's interest
herein, except that upon any sale or assignment of the interest of either
Landlord or Tenant herein, their respective successors in interest or assigns
shall succeed to all rights and obligations of Landlord or Tenant, as
25
the case may be, and during the term of their ownership of their respective
estates herein, be deemed to be Landlord or Tenant, as the case may be. Except
as herein otherwise expressly provided, the covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant and their respective successors, and assigns.
26. Limitation of Liability. The obligations of Landlord under this Lease are
not personal obligations of the individual partners, directors, officers, agents
or employees of Landlord (or their respective heirs, successors and assigns),
and Tenant shall look solely to the premises and the Landlord's interest therein
for satisfaction of any liability of Landlord to Tenant hereunder. Tenant shall
not look to any other assets of Landlord nor such recourse against the assets of
the individual partners, directors, officers, agents or employees of Landlord
(or their respective heirs, successors and assigns) for performance of
Landlord's obligations hereunder.
27. Notices. Any notice provided for to be given to Landlord shall be given by
either hand delivery, by United States registered or certified mail, postage
prepaid, or by Federal Express or other recognized overnight delivery service,
addressed to Landlord, attention Dollar Tree Stores, Inc., Robert Gurnee, Vice
President - Real Estate, 500 Volvo Parkway, Chesapeake, Virginia 23320, with a
required copy to Hofheimer Nusbaum, P.C., attention William A. Old, Jr.,
Esquire, 1700 Dominion Tower, 999 Waterside Drive, Norfolk, Virginia 23510, and
shall be effective upon receipt. Any notice herein provided for to be given to
Tenant shall be given by either hand delivery, by United States registered or
certified mail, postage prepaid, or by Federal Express or other recognized
overnight delivery service, addressed to Tenant, 141 Spring Street, Lexington,
Massachusetts 02173, with a required copy to Raytheon Company, Office of General
Counsel, 141 Spring Street, Lexington, Massachusetts 02173, and shall be
effective upon receipt. Should either party fail or refuse to accept delivery,
the notice shall be deemed effective on the first date delivery is attempted,
provided that a written record is made of that date. Either party may change its
address by notice to the other party as provided for herein.
28. Estoppel Certificates. Either party shall, without charge, at any time and
from time to time hereafter, within ten (10) days
26
after written request of the other, certify by written instrument duly executed
and acknowledged to any mortgagee or purchaser, or proposed mortgagee or
proposed purchaser, or any other person, firm or corporation specified in such
request: (a) as to whether this Lease has been supplemented or amended, and if
so, the substance and manner of such supplement or amendment; (b) as to the
validity and force and effect of this Lease, in accordance with its tenor as
then constituted; (c) as to the existence of any default thereunder; (d) as to
the existence of any offsets, counterclaims or defenses thereto on the part of
such other party; (e) as to the commencement and expiration dates of the term of
this Lease; and (f) as to any other matters and exceptions as may reasonably be
so requested. Any such certificate may be relied upon by the party requesting it
and any other person, firm, or corporation to whom the same may be exhibited or
delivered, and the contents of such certificate shall be binding on the party
executing same.
29. Recording of Lease. Landlord and Tenant agree that this Lease shall not be
recorded. However, a Memorandum of Lease shall be recorded in the Clerk's Office
of the Circuit Court of the City of Norfolk, Virginia, by Landlord. All fees and
taxes associated with the recording of a Memorandum of Lease shall be borne by
Tenant. DMK Associates shall be a party to and join in said Memorandum of Lease.
30. Governing Law. This Lease and the performance thereof shall
be governed, interpreted, construed, and regulated by the laws of
the Commonwealth of Virginia.
31. Invalidity of Provisions. If any term, covenant, condition, or provision of
this Lease or the application thereof to any person or circumstance shall, at
any time or 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 those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term, covenant, condition, and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
32. Gender; Counterparts. Wherever herein the singular number is used, the same
shall include the plural, and the masculine gender shall include the feminine
and neuter genders, and vice versa, as
27
the context shall require. This Lease may be executed in several counterparts,
each of which shall be an original, but all of which shall constitute one and
the same instrument.
33. Consents. To the extent either Landlord or Tenant is required by the terms
of this Lease to give its consent to an action of the other party, such consent
shall not be unreasonably withheld or delayed and the provisions of this Lease
shall be so interpreted unless specifically provided to the contrary.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
the day and year first above written.
DOLLAR TREE STORES, INC., a
Virginia corporation
By: /s/ Macon F. Brock, Jr.
------------------------------
Macon F. Brock, Jr.
Title: President and Chief Executive Officer
RAYTHEON SERVICE COMPANY, a
Delaware corporation
By: /s/ Morton L. Brand
------------------------------
Morton L. Brand
Title: Vice President and Controller
DMK ASSOCIATES, a Virginia general
partnership
By: /s/ Macon F. Brock, Jr.
------------------------------
Macon F. Brock, Jr.
General Partner
By: /s/ J. Douglas Perry
------------------------------
J. Douglas Perry
General Partner
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Exhibit A
ALL THAT certain lot, piece or parcel of land, with the
buildings and improvements thereon, situate, lying and being
in the City of Norfolk, State of Virginia, and numbered and
designated as Parcel 31-A, Norfolk Commerce Park, Phase II, on
that certain plat which is recorded in the Clerk's Office of
the Circuit Court of the City of Norfolk, Virginia, in Map
Book 45, at page 111, reference to which plat being hereby
made for a more particular description of said property.
29