LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made as of the 1st day of November,
2001, by and between ePLUS, INC. ("Tenant"), and PHILLIP G. NORTON, TRUSTEE
("Landlord").
WHEREAS, the Landlord is the owner of certain property, located in Fairfax
County, Virginia, with a street address of 13595 Dulles Technology Drive,
Herndon, Virginia (the "Property"), improved by a two-story office building
located thereon (the "Building"); and
WHEREAS, the Tenant and Landlord desire to enter into this Lease, upon the
terms and conditions more particularly set forth herein.
NOW, THEREFORE, the parties hereto, intending legally to be bound, hereby
covenant and agree as set forth below.
ARTICLE I BASIC TERMS
Section 1.1 Defined Terms. In addition to the terms defined in the
recitals above, the following definitions shall apply to this Lease: (a)
"Premises" shall mean approximately 14,000 square feet of rentable area, which
comprises a portion of the second floor of the Building, as generally set forth
in Exhibit A attached hereto and incorporated herein. The approximation of
square footage shall in no way affect the amount of rent payable hereunder,
should any variance be found to exist between the approximation and actual
square footage.
(b) "Base Rent" shall mean the fixed rent paid monthly during the Lease
Term, in the amount of TWENTY-EIGHT THOUSAND DOLLARS ($28,000.00) per
month.
(c) "Commencement Date" shall mean November 1, 2001.
(d) "Expiration Date" shall mean October 31, 2002.
(e) "Lease Term" shall mean the period commencing on the Commencement Date
and continuing through and including the Expiration Date.
ARTICLE II THE PREMISES AND THE LEASE TERM
Section 2.1 Demise of the Premises. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, the Premises for the Lease Term, upon the terms,
conditions, covenants and agreements herein provided. Tenant's right to lease
the Premises includes Tenant's right to use 52 parking spaces in the parking lot
located upon the Property.
ARTICLE III BASE RENT
Section 3.1 Base Rent. Tenant shall pay to Landlord the Base Rent for the
Premises, without setoff, deduction or demand. Base Rent shall be payable on the
Commencement Date and thereafter monthly, in advance, on the first day of each
month during the Lease Term. Section 3.2 Payment of Rent. All rent shall be paid
to Landlord in legal tender of the United States at the address to which notices
to Landlord are to be given or to such other party or to such other address as
Landlord may designate from time to time by written notice to Tenant. If
Landlord shall at any time accept rent after it shall become due and payable,
such acceptance shall not excuse a delay upon subsequent occasions, or
constitute or be construed as a waiver of any of Landlord's rights hereunder.
ARTICLE IV ADDITIONAL RENT
Section 4.1 Operating Charges and Real Estate Taxes. In addition to the Base
Rent under this Lease, the Tenant shall be responsible for a 25% proportionate
share of operating charges and real estate tax payments. It is acknowledged that
the present monthly operating charge is $2,466, and the present monthly real
estate tax payment is $1,241, such that Tenant shall be responsible for $616.50
per month for operating charges, and $310.25 per month for real estate tax
payments. The Tenant acknowledges that it has reviewed materials and documents
related to the computation of operating charges and real estate tax payments,
and understands that these charges may increase.
Section 4.2 Utilities. All accounts for utility services to the Premises shall
be in the name of Tenant and shall be paid directly to the utility company.
Section 4.3 Treatment as Additional Rent. All payments required to be made by
Tenant pursuant to this Article IV shall be additional rent for the Premises and
shall be paid, without setoff or deduction, on the first day of each month.
ARTICLE V USE OF PREMISES
Section 5.1 Use of Premises. Tenant may use and occupy the Premises for any
lawful purpose. Tenant shall not use or occupy the Premises for any unlawful
purpose or in any manner that will constitute waste, nuisance or unreasonable
annoyance. Tenant shall comply with all present and future laws, ordinances
(including zoning ordinances and land use requirements), regulations, and orders
of the United States of America, the Commonwealth of Virginia, Fairfax County,
and any other public or quasi-public authority having jurisdiction over the
Premises, concerning the use, occupancy and condition of the Premises, and all
machinery, equipment and furnishings therein. It is expressly understood that if
any present or future law, ordinance, regulation or order requires an occupancy
permit for the Premises, Tenant will obtain such permit at Tenant's own expense.
ARTICLE VI ASSIGNMENT AND SUBLETTING
Section 6.1 Landlord Consent Required. Tenant shall not assign, transfer,
mortgage or otherwise encumber this Lease or its interest therein, or sublet,
rent or permit anyone to occupy the Premises, or any part thereof, without
giving Landlord thirty (30) days' prior written notice of Tenant's intention to
assign or sublet the Premises and obtaining the prior written consent of
Landlord, which consent shall not be unreasonably withheld. The consent by
Landlord to any assignment or subletting shall not be construed as a waiver or
release of Tenant from liability for the performance of all covenants and
obligations to be performed by Tenant under this Lease, nor shall the collection
or acceptance of rent from any assignee, subtenant or occupant constitute a
waiver or release of Tenant from any of its liabilities or obligations under
this Lease. Landlord's consent to any assignment or subletting shall not be
construed as relieving Tenant from the obligation of obtaining Landlord's prior
written consent to any subsequent assignment or subletting. If an Event of
Default has occurred and is continuing, Tenant hereby assigns to Landlord the
rent due from any subtenant of Tenant and hereby authorizes each such subtenant
to pay said rent directly to Landlord.
ARTICLE VII TENANT'S MAINTENANCE AND REPAIR
Section 7.1 Tenant to Maintain Premises. Tenant will keep and maintain the
Premises and all fixtures and equipment located therein in a clean, safe and
sanitary condition, will take good care there of, in accordance with the terms
of this Lease, and will suffer no waste or injury thereto, and will, at the
expiration or other termination of the Lease Term, surrender the Premises broom
clean, in the same order and condition in which they are in on the Commencement
Date, ordinary wear and tear excepted.
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Section 7.2 Tenant to Comply with Laws. 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 the
federal and local governments and of all other governmental authorities
affecting the Premises or appurtenances thereto or any part thereof whether the
same are in force as of the Commencement Date or may in the future be passed,
enacted or directed, and Tenant shall pay all costs, expenses, liabilities,
losses, damages, fines, penalties, claims and demands, including reasonable
counsel 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 7.2.
ARTICLE VIII TENANT ALTERATIONS
Section 8.1 "AS IS". Tenant has had the opportunity to inspect the Premises
(including, without limitation, all mechanical, electric, and plumbing systems
therein), and accepts the Premises, and the land upon which the Premises is
located in their condition "AS IS" as of the date hereof. Landlord will not
make, and is under no obligation to make, any structural or other alterations,
decorations, additions or improvements in or to the Premises. Tenant will not
make or permit anyone to make any alterations, decorations, additions or
improvements (hereinafter referred to collectively as "improvements"),
structural or otherwise, in or to the Premises, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld.
ARTICLE IX LANDLORD INSPECTION
Section 9.1 Inspection by Landlord. Upon reasonable prior oral or written notice
from Landlord, Tenant will permit Landlord, or its agents or representatives
(including, without limitation, any prospective purchasers, mortgagees or
prospective mortgagees) to enter the Premises, at all reasonable times and from
time to time, without charge therefor to Landlord and without diminution of the
rent payable by Tenant, to examine and inspect the Premises. Notwithstanding
anything to the contrary contained herein, in the event of an emergency,
Landlord shall have the right to enter the Premises at any time and without
prior notice to Tenant. During the Lease Term, Landlord may show the Premises to
prospective tenants. In connection with any such entry, Landlord shall endeavor
to minimize the disruption to Tenant's use of the Premises.
ARTICLE X INSURANCE
Section 10.1 Required Insurance and Terms of Insurance Policies. Throughout the
Lease Term, Tenant, at its sole cost and expense, must provide insurance
policies and certificates of insurance reasonably satisfactory to Landlord as to
amounts, types of coverage and the companies underwriting these coverages. In no
event will such policies be terminated or otherwise allowed to lapse. Tenant
shall be responsible for its own deductibles. Tenant shall also pay for any
insurance, or any increase of policy limits, not described in this Lease which
Tenant requires for its own protection or for compliance with government
statutes. Tenant's insurance shall be primary and without contribution from any
insurance Landlord may, at Landlord's option, procure. Landlord's interest must
be clearly stated by endorsement in the insurance policies described in this
Article X, as follows:
(A) Each policy shall contain an endorsement that it shall remain in full
force and effect notwithstanding that the insured has waived its right of action
against any party prior to the occurrence of a loss, shall contain a standard
waiver of subrogation endorsement, and, at the request of Landlord, shall
include any mortgagee or ground lessor as additional insureds.
(B) Receipts evidencing payment of the premium for such insurance shall be
delivered by Tenant upon the execution of this Lease, and each such policy shall
contain an endorsement prohibiting cancellation or reduction of coverage without
first giving Landlord thirty (30) days' prior written notice of such proposed
action.
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All the insurance companies must be authorized to do business in the
Commonwealth of Virginia and be approved by Landlord. Certified copies of the
policies, and any endorsements, shall be made available for inspection by
Landlord upon request. If any policy is canceled before the Lease Term has
expired, and Tenant fails to immediately procure replacement insurance, Landlord
reserves the right but shall not have the obligation immediately to procure
replacement insurance at Tenant's cost.
ARTICLE XI LIABILITY OF LANDLORD
Section 11.1 Liability of Landlord Limited. Landlord shall not be liable
to Tenant, its employees, agents, business invitees, licensees, customers,
clients, or guests for any damage, injury, loss compensation or claim (other
than any damage, injury, or loss resulting from Landlord's gross negligence or
willful misconduct), including but not limited to claims for the interruption of
or loss to Tenant's business, based on, arising out of or resulting from any
cause whatsoever, including but not limited to the following: repairs to any
portion of the Premises; interruption in the use of the Premises; any accident
or damage resulting from the use or operation (by Landlord, Tenant, or any other
person or persons) of the heating, cooling, electrical or plumbing equipment or
apparatus; the termination of this Lease by reason of the destruction of the
Premises; any fire, robbery, theft, mysterious disappearance and/or any other
casualty; the actions of any other tenants of the Premises or of any other
person or persons; and any leakage in any part or portion of the Premises, or
from water, rain or snow that may leak into, or flow from, any part of the
Premises, or from drains, pipes or plumbing work in the Premises. Any goods,
property or personal effects stored or placed by Tenant or its employees in or
about the Premises shall be at the sole risk of Tenant, and Landlord shall not
in any manner be held responsible therefor.
Section 11.2 Tenant to Indemnify Landlord. Tenant hereby agrees to indemnify and
hold Landlord and Landlord's agents and its and their officers, directors, and
employees, harmless from and against all costs, damages, claims, liabilities and
expenses (including reasonable attorneys' fees) suffered by or claimed against
Landlord and Landlord's agents and its and their officers, directors, and
employees, directly or indirectly, based on, arising out of or resulting from
(i) Tenant's use and occupancy of the Premises or the business conducted by
Tenant therein, (ii) any act or omission by Tenant or its employees, agents or
invitees, or (iii) any breach or default by Tenant in the performance or
observance of its covenants or obligations under this Lease.
Section 11.3 Transfer of Premises. In the event that at any time Landlord shall
sell or transfer the Premises, the Landlord named herein shall not be liable to
Tenant for any obligations or liabilities based on or arising out of events or
conditions occurring on or after the date of such sale or transfer and the new
owner of the Premises shall not be liable to Tenant for any obligations or
liabilities based on or arising out of events or conditions occurring before the
date of such sale or transfer.
Section 11.4 No Recourse Against Landlord. In the event Tenant is awarded a
money judgment against Landlord, Tenant's sole recourse for satisfaction of such
judgment shall be limited to execution against Landlord's interest in the
Premises. In no event shall any partner, shareholder, officer, director or any
principal of Landlord or any other persons be held to have any personal
liability for satisfaction of any claims or judgments that Tenant may have
against Landlord.
ARTICLE XII DAMAGE OR DESTRUCTION
Section 12.1 Restoration. If during the Lease Term the Premises are totally or
partially inaccessible or unusable, Tenant at its option, shall diligently
restore and repair the Premises to substantially the same condition they were in
prior to such damage, or terminate this Lease and deliver the insurance proceeds
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to the Landlord as required under Section 10.1, and upon such termination, the
parties shall be relieved of any and all further liability under this Lease. In
the event the Tenant does not elect to terminate this Lease, as provided in the
preceding sentence, the Tenant shall be required to pay Base Rent and additional
rent during the restoration whether or not Tenant is actually occupying all or
any part of the Premises.
ARTICLE XIII CONDEMNATION
Section 13.1 Effect of Condemnation. If the whole or a substantial part (as
hereinafter defined) of the Premises or the use or occupancy of the Premises,
shall be taken or condemned by any governmental or quasi-governmental authority
for any public or quasi-public use or purpose (including a sale thereof under
threat of such a taking), then this Lease shall terminate on the date title
thereto vests in such governmental or quasi-governmental authority, and all rent
payable hereunder shall be apportioned as of such date. If less than a
substantial part of the Premises (or the use and occupancy thereof) is taken or
condemned by any governmental or quasi-governmental authority for any public or
quasi-public use or purpose (including a sale thereof under threat of such a
taking), this Lease shall continue in full force and effect, but the Base Rent
and additional rent thereafter payable hereunder shall be equitably adjusted (on
the basis of the ratio of the number of square feet of rentable area taken to
the total rentable area in the Premises prior to such taking) as of the date
title vests in the governmental or quasi-governmental authority. For purposes of
this Section, a substantial part of the Premises shall be considered to have
been taken if more than fifty percent (50%) of the Premises is rendered unusable
as a result of such taking.
Section 13.2 Condemnation Proceeds. All awards, damages and other compensation
paid by the condemning authority on account of the taking or condemnation (or
sale under threat of such a taking) shall belong to Landlord, and Tenant hereby
assigns to Landlord all rights to such awards, damages and compensation. Tenant
agrees not to make any claim against Landlord or the condemning authority for
any portion of such award or compensation attributable to damages to the
Premises, the value of the unexpired Lease Term, the loss of profits or
goodwill, leasehold improvements or severance damages. Nothing contained herein,
however, shall prevent Tenant from pursuing a separate claim against the
condemning authority for the value of furnishings, equipment and trade fixtures
installed in the Premises at Tenant's expense and for relocation expenses,
provided that such claim shall in no way diminish the award nor compensation
payable to or recoverable by Landlord in connection with such taking or
condemnation.
ARTICLE XIV DEFAULT BY TENANT
Section 14.1 Tenant Default. The occurrence of any of the following shall
constitute an event of default ("Event of Default") by Tenant under this Lease:
(a) If Tenant shall fail to pay any payment of Base Rent or additional rent
when due, or shall fail to make any other payment required by this Lease when
due.
(b) If Tenant shall violate or fail to perform any other term, condition,
covenant or agreement to be performed or observed by Tenant under this Lease.
(c) If Tenant shall vacate or abandon the Premises.
(d) If the Tenant (i) is voluntarily adjudicated a bankrupt or insolvent,
(ii) seeks or consents to the appointment of a receiver or trustee for itself or
for all or a part of its property, (iii) files a petition seeking relief under
the bankruptcy or similar laws of the United States or any local or any other
jurisdiction, (iv) makes a general assignment for the benefit of creditors, or
(v) admits in writing its inability to pay its debts as they mature.
(e) If a petition shall be filed against the Tenant seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future federal, local, or other statute,
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law or regulation and shall remain undismissed or unstayed for thirty (30) days,
or if any trustee, receiver or liquidator of the Tenant, or of all or any
substantial part of its properties, shall be appointed without the consent or
acquiescence of the Tenant and such appointment shall remain unvacated or
unstayed for thirty (30) days.
Notwithstanding the provisions of this Section 14.1, an Event of Default shall
not be deemed to have occurred with respect to the failure of payment of any
installment of rent or additional rent unless such failure shall continue for a
period of seven (7) days, after written notice is given to Tenant, nor shall any
Event of Default be deemed to have occurred if Tenant shall fail to comply with
any term, provision or covenant of this Lease, other than payment of rent or
additional rent, if such failure is cured or removed within thirty (30) days
after written notice is given to Tenant by Landlord setting forth the nature of
such default, or in respect to a default which cannot be cured within such
period, so long as Tenant shall commence to remove the same within such ten-day
period and shall diligently and expeditiously proceed to complete the cure or
removal thereof within an additional twenty-day period.
Section 14.2 Landlord's Remedies. Upon the occurrence of any of the Events of
Default described or referred to in Section 14.1, Landlord shall have the option
to pursue any one or more of the following remedies without any notice or demand
whatsoever, concurrently or consecutively and not alternatively:
(a) Landlord may, at its election, terminate this Lease or terminate
Tenant's right to possession only, without terminating the Lease.
(b) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
entire Premises immediately, and deliver possession thereof to Landlord, and
Tenant hereby grants to Landlord full and free license to enter into and upon
the Premises in such event and to repossess Landlord of the Premises as of
Landlord's former estate and to expel or remove Tenant and any others who may be
occupying or be within the Premises and to remove Tenant's signs and other
evidence of tenancy and all other property of Tenant therefrom without being
deemed in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom, Tenant
waiving any right to claim damages for such re-entry and expulsion, and without
relinquishing Landlord's right to rent or any other right given to Landlord
under this Lease or by operation of law.
(c) Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent, including
any amounts treated as additional rent under this Lease, and other sums due and
payable by Tenant on the date of termination, plus as liquidated damages and not
as a penalty, an amount equal to the sum of: (i) an amount equal to the then
present value of the rent reserved in this Lease for the residue of the Lease
Term including any amounts treated as additional rent and all other sums
provided in this Lease to be paid by Tenant, minus the fair rental value of the
Premises for such residue; (ii) the value of the time and expense necessary to
obtain a replacement tenant or tenants, and the estimated expenses relating to
recovery of the Premises, preparation for reletting and for reletting itself;
and (iii) the cost of performing any other covenants which would have otherwise
been performed by Tenant.
(d) Upon any termination of Tenant's right to possession only without
termination of the Lease:
(i) Neither such termination of Tenant's right to possession nor
Landlord's taking and holding possession thereof shall terminate the Lease
or release Tenant, in whole or in part, from any obligation, including
Tenant's obligation to pay the rent or additional rent under this Lease for
the full Lease Term, and if Landlord so elects Tenant shall pay forthwith
to Landlord the sum equal to the entire amount of the rent and additional
rent under this Lease for the remainder of the Lease Term plus any other
sums provided in this Lease to be paid by Tenant for the remainder of the
Term.
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(ii) Landlord may, but need not, relet the Premises or any part
thereof for such rent and upon such terms as Landlord, in its sole
discretion, shall determine (including the right to relet the Premises for
a greater or lesser term than that remaining under this Lease, the right to
relet the Premises as a part of a larger area, and the right to change the
character or use made of the Premises). In connection with or in
preparation for any reletting, Landlord may, but shall not be required to,
make repairs, alterations and additions in or to the Premises and
redecorate the same to the extent Landlord deems necessary or desirable,
and Tenant shall, upon demand, pay the cost thereof, together with
Landlord's expenses of reletting, including, without limitation, any
commission incurred by Landlord. If Landlord decides to relet the Premises
or a duty to relet is imposed upon Landlord by law, Landlord and Tenant
agree that nevertheless Landlord shall at most be required to use only the
same efforts Landlord then uses to lease premises in the Premises generally
and that in any case that Landlord shall not be required to give any
preference or priority to the showing or leasing of the Premises over any
other space that Landlord may be leasing or have available and may place a
suitable prospective tenant in any such other space regardless of when such
other space becomes available. Landlord shall not be required to observe
any instruction given by Tenant about any reletting or accept any tenant
offered by Tenant unless such offered tenant has a creditworthiness
acceptable to Landlord and leases the entire Premises upon terms and
conditions including a rate of rent (after giving effect to all
expenditures by Landlord for tenant improvements, broker's commissions and
other leasing costs) all no less favorable to Landlord than as called for
in this Lease, nor shall Landlord be required to make or permit any
assignment or sublease for more than the current term. In any proceedings
to enforce this Lease, Landlord shall be presumed to have complied with any
duty now or hereafter imposed by law to relet the Premises in order to
mitigate its damages, and Tenant shall bear the burden of proof to
establish otherwise.
(iii) Until such time as Landlord shall elect to terminate the Lease
and shall thereupon be entitled to recover the amounts specified in such
case, Tenant shall pay to Landlord upon demand the full amount of all rent,
including any amounts treated as additional rent under this Lease, together
with the costs of repairs, alterations, additions, redecorating and
Landlord's expenses of reletting and the collection of the rent accruing
therefrom (including reasonable attorney's fees and broker's commissions),
as the same shall then be due or become due from time to time, less only
such consideration as Landlord may have received from any reletting of the
Premises; and Tenant agrees that Landlord may file suits from time to time
to recover any sums falling due under this Article as they become due. Any
proceeds of reletting by Landlord in excess of the amount then owed by
Tenant to Landlord from time to time shall be credited against Tenant's
future obligations under this Lease but shall not otherwise be refunded to
Tenant or inure to Tenant's benefit.
(e) Landlord may, at Landlord's option, enter into and upon the Premises if
Landlord determines in its sole discretion that Tenant is not acting within a
commercially reasonable time to maintain, repair or replace anything for which
Tenant is responsible under this Lease and correct the same, without being
deemed in any manner guilty of trespass, eviction or forcible entry and detainer
and without incurring any liability for any damage or interruption of Tenant's
business resulting therefrom. If Tenant shall have vacated the Premises,
Landlord may at Landlord's option re-enter the Premises at any time during the
last six (6) months of the then current Lease Term and make any and all such
changes, alterations, revisions, additions and tenant and other improvements in
or about the Premises as Landlord shall elect, all without any abatement of any
of the rent otherwise to be paid by Tenant under this Lease.
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(f) If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning or to enforce or defend any of Landlord's rights or remedies arising
under this Lease, Tenant agrees to pay all Landlord's reasonable attorneys' fees
so incurred. Tenant expressly waives any right to: (a) trial by jury and (b)
service of any notice required by any present or future law or ordinance
applicable to landlords or tenants but not required by the terms of this Lease.
(g) Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies provided in this Lease or any other remedies provided
by law (all such remedies being cumulative), nor shall pursuit of any remedy
provided in this Lease constitute a forfeiture or waiver of any rent due to
Landlord under this Lease or of any damages accruing to Landlord by reason of
the violation of any of the terms, provisions and covenants contained in this
Lease.
(h) No act or thing done by Landlord or its agents during the Lease Term
shall be deemed a termination of this Lease or an acceptance of the surrender of
the Premises, and no agreement to terminate this Lease or accept a surrender of
the Premises shall be valid, unless in writing signed by Landlord. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants contained in this Lease shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease. Landlord's acceptance of the payment of
rental or other payments after the occurrence of an Event of Default shall not
be construed as a waiver of such default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord in enforcing one or more of the remedies
provided in this Lease upon an Event of Default shall not be deemed or construed
to constitute a waiver of such default or of Landlord's right to enforce any
such remedies with respect to such default or any subsequent default.
(i) To secure the payment of all rentals and other sums of money becoming
due from Tenant under this Lease, Landlord shall have and Tenant grants to
Landlord a first lien upon the leasehold interest of Tenant under this Lease,
which lien may be enforced in equity, and a continuing security interest upon
all goods, wares, equipment, fixtures, furniture, inventory, accounts, contract
rights, chattel paper and other personal property of Tenant (collectively, the
"Personal Property") situated on the Premises, and such Personal Property shall
not be removed therefrom without the consent of Landlord until all arrearages in
rent as well as any and all other sums of money then due to Landlord under this
Lease shall first have been paid and discharged. In the event of a default under
this Lease, Landlord shall have, in addition to any other remedies provided in
this Lease or by law, all rights and remedies under the Uniform Commercial Code,
including without limitation the right to sell the Personal Property at public
or private sale upon five (5) days' notice to Tenant. Tenant shall execute all
such financing statements and other instruments as shall be deemed necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created. Notwithstanding the foregoing, Landlord agrees to subordinate such lien
and security interest granted by Tenant in the Personal Property to the liens of
Tenant's creditors in connection with any financing of Tenant's business in the
Premises.
(j) Any and all property which may be removed from the Premises by Landlord
pursuant to the authority of this Lease or of law, to which Tenant is or may be
entitled, may be handled, removed and/or stored, as the case may be, by or at
the direction of Landlord but at the risk, cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a bill of sale
without further payment or credit by Landlord to Tenant.
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Section 14.3 No Accord and Satisfaction. If Landlord shall institute proceedings
against Tenant and a compromise or settlement thereof shall be made, the same
shall not constitute a waiver of the same or of any other covenant, condition or
agreement set forth herein, nor of any of Landlord's rights hereunder. Neither
the payment by Tenant of a lesser amount than the installments of fixed rent,
additional rent or of any sums due hereunder nor any endorsement or statement on
any check or letter accompanying a check for payment of rent or other sums
payable hereunder shall 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 other sums or to pursue any other remedy available
to Landlord. No re-entry by Landlord, and no acceptance by Landlord of keys from
Tenant, shall be considered an acceptance of a surrender of this Lease.
Section 14.4 Interest and Late Charge. If Tenant fails to make any payment of
Base Rent or of additional rent within seven (7) days of the date such payment
is due and payable, Tenant shall pay to Landlord a late charge of five percent
(5%) of the amount of such payment. In addition, such payment shall bear
interest at the rate per annum which is two percent (2%) higher than the "prime
rate" then being charged by Bank of America from the date such payment became
due to the date of payment thereof by Tenant; provided, however, that nothing
contained herein shall be construed as permitting Landlord to charge or receive
interest in excess of the maximum legal rate then allowed by law. Such late
charge and interest shall constitute additional rent due and payable hereunder
within two (2) days of written demand therefor.
ARTICLE XV SUBORDINATION AND ATTORNMENT
Section 15.1 Subordination. This Lease is and shall remain subject and
subordinate to the lien of any and all current and future mortgages and/or any
ground leases (which term "mortgages" shall include both construction and
permanent financing and shall include deeds of trust and similar security
instruments) which may now encumber the Premises and/or the land on which the
Premises is located and to all and any renewals, extensions, modifications,
recastings or refinancings thereof. At any time after the execution of this
Lease, the holder of any mortgage to which this Lease is subordinate shall have
the right to declare this Lease to be superior to the lien of such mortgage and
Tenant agrees to execute all documents required by such holder in confirmation
thereof. Tenant shall, at Landlord's request, promptly execute any requisite or
appropriate certificate or other document to effect the subordination of this
Lease. Tenant hereby constitutes and appoints Landlord as Tenant's
attorney-in-fact to execute any such certificate or other document for or on
behalf of Tenant if Tenant fails to sign and return any such certificate or
other document within ten (10) days after receipt by Tenant. As of the date
hereof, no mortgage or deed of trust is encumbering the Property. However,
provided no Event of Default by Tenant has occurred and remains uncured,
Landlord shall obtain for Tenant a non-disturbance agreement from the holder of
any future mortgage on such mortgagee's standard form.
Section 15.2 Attornment. Tenant agrees that in the event any proceedings are
brought for the foreclosure of any mortgage encumbering the Premises or the
termination of any ground lease affecting the Premises, Tenant shall attorn to
the Purchaser at such foreclosure sale or any ground lessor, as the case may be,
if requested to do so by such party, and shall recognize such party as Landlord,
under this Lease, and Tenant waives the provisions of any statute or rule of
law, now or hereafter in effect, which may give or purport to give Tenant any
right to terminate or otherwise adversely affect this Lease and the obligations
of Tenant hereunder in the event any such foreclosure proceeding is prosecuted
or completed.
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Section 15.3 Mortgagee Rights. Tenant shall, at its own expense, comply with all
reasonable notices of Landlord's mortgagee or other financial institution
providing funds which are secured by a mortgage or deed of trust placed on the
whole or any part of the real property of which the Premises are a part,
respecting all matters of occupancy, use, condition or maintenance of the
Premises, provided the same shall not unreasonably interfere with the conduct of
Tenant's business nor materially limit or affect the rights of the parties under
this Lease. Tenant shall give Landlord's mortgagee a copy of any notice of
default served upon Landlord by Tenant, provided that prior to such notice,
Tenant has been notified in writing of the address of the mortgagee. Notice
shall be provided to the mortgagee in accordance with the Notice provision of
this Lease. Tenant further agrees that if Landlord shall have failed to cure
such default within the cure period, if any, provided in this Lease, the
mortgagee shall have an additional thirty (30) days within which to cure such
default, or if such default cannot be cured within that time, then such
additional time as may be necessary if within such thirty (30) days any
mortgagee a has commenced and is diligently pursuing the remedies necessary to
cure such default (including, but not limited to, commencement of foreclosure
proceedings if necessary to effect such cure), in which event this Lease shall
not be terminated while such remedies are being diligently pursued.
ARTICLE XVI HOLD OVER
Section 16.1 Hold Over. In the event that Tenant shall not immediately surrender
the entire Premises on the date of the expiration of the Lease Term, Tenant
shall become a Tenant by the month at 125% of the Base Rent and all additional
rent in effect during the last month of the Lease Term. Said monthly tenancy
shall commence on the first day following the expiration of the Lease Term. As a
monthly Tenant, Tenant shall be subject to all the terms, conditions, covenants
and agreements of this Lease (including, without limitation, one payment of all
additional rent), except for the amount of the Base Rent, which shall be in the
amount specified in this paragraph.
ARTICLE XVII COVENANTS OF LANDLORD
Section 17.1 Right of Quiet Enjoyment. Landlord covenants that it has the right
to make this Lease for the term aforesaid, and that if Tenant shall pay all rent
when due and punctually perform all the covenants, terms, conditions and
agreements of this Lease to be performed by Tenant, Tenant shall have the right
to, during the Lease Term, 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 the provisions of
Sections 15.1 and 15.2 hereof.
ARTICLE XVIII GENERAL PROVISIONS
Section 18.1 No Representations. Tenant acknowledges that neither Landlord nor
any broker, agent or employee of Landlord has made any representations or
promises with respect to the Premises or the land on which the Premises is
located, except as herein expressly set forth, and no rights, privileges,
easements or licenses are acquired by Tenant except as herein expressly set
forth.
Section 18.2 No Partnership. Nothing contained in this Lease shall be construed
as creating a partnership or joint venture of or between Landlord and Tenant, or
to create any other relationship between the parties hereto other than that of
Landlord and Tenant.
Section 18.3 Brokers. Landlord and Tenant each represent and warrant to the
other that neither of them has employed or dealt with any broker, agent, or
finder in carrying on the negotiations relating to this Lease. Landlord shall
indemnify and hold Tenant harmless, and Tenant shall indemnify and hold Landlord
harmless, from and against any claims for brokerage or other commissions arising
from or out of any breach of the foregoing representation and warranty by the
respective indemnitor.
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Section 18.4 Estoppel Certificates. At any time from time to time, upon not less
than five (5) business days' prior written notice by Landlord, Tenant shall
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 modifications); (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, agreement or condition contained in this Lease, and
if so, specifying the nature of such default; (iv) stating that all Tenant work
has been satisfactorily completed, or if not, a list of items excepted; (v) any
other certification reasonably required by Landlord; and (vi) stating the
address to which notices to Tenant are to be sent. Any statement delivered by
Tenant may be relied upon by any owner of the Premises or the land upon which it
is situated, any prospective purchaser of the Premises or such land mortgage or
prospective mortgagee of the Premises or such land or of Landlord's interest
therein, or any prospective assignee of any such mortgagee.
Section 18.5 Waiver of Jury Trial. LANDLORD AND TENANT EACH HEREBY WAIVE TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THEM
AGAINST THE OTHER IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER,
TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OR INJURY OR DAMAGE.
Section 18.6 Notices. Whenever notice is required or desired to be given under
this Lease, such notice shall be in writing (unless otherwise stated) and shall
deemed to have been given when hand-delivered, sent by overnight delivery or
courier service, or sent by certified or registered mail, return receipt
requested, and addressed as follows: (i) if to Landlord, at
________________________________________________________; (ii) if to Tenant, at
__________________________________. Either party may change its address for the
giving of notices by notice given in accordance with this Section.
Section 18.7 Severability. If any provision of this Lease or the application
thereof to any person or circumstances shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of this Lease
shall be valid and enforced to the fullest extent permitted by law.
Section 18.8 Successors and Assigns. The provisions of this Lease shall be
binding upon, and shall inure to the benefit of, the parties hereto and each of
their respective representatives, successors and assigns, subject to the
provisions hereof prohibiting assignment or subletting by Tenant.
Section 18.9 Entire Agreement. This Lease contains and embodies the entire
agreement of the parties hereto, and no representations, inducements or
agreements, oral or otherwise, not contained in this Lease shall be of any force
or effect. This Lease may not be modified or changed in whole or in part in any
manner other than by an instrument in writing duly signed by both parties
hereto. Section
18.10 Headings. Article and section headings are used herein for the convenience
of reference and shall not be considered when construing or interpreting this
Lease.
Section 18.11 Execution and Delivery. The submission of an unsigned copy
of this document to Tenant for Tenant's consideration does not constitute an
offer to lease the Premises or an option to or for the Premises. This document
shall become effective and binding only upon the execution and delivery of this
Lease by both Landlord and Tenant.
Section 18.12 Counterparts. This Lease may be executed in multiple counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same document.
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Section 18.13 Calendar Days/Business Days. As used in this Lease and the
exhibits thereto, all references to "days" shall be calendar days unless
business days are specified. Time is of the essence with respect to obligations
of Tenant under this Lease.
Section 18.14 Corporate Authority. Tenant represents and warrants to Landlord
that the person executing this Lease on behalf of Tenant is authorized to do so
on behalf of Tenant.
Section 18.15 Consent to Jurisdiction and Forum. Any litigation in connection
with, or arising out of, this Lease shall be brought in the federal or state
courts for the Commonwealth of Virginia. Landlord and Tenant hereby consent to
such court's exercise of personal jurisdiction
Section 18.16 Recordation. Neither this Lease nor a memorandum thereof shall be
recorded without the consent of Landlord. If Landlord so consents, Tenant shall
pay all costs of recordation, including any transfer or recordation taxes
incurred therewith.
Section 18.17 Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under seal on
the day and year first above written.
TENANT:
ePLUS, INC.
By: /s/ Bruce M. Bowen [SEAL]
------------------------------
Name: Bruce M. Bowen
Title: Chief Operating Officer
LANDLORD:
By: /s/ Phillip G. Norton
--------------------------
Phillip G. Norton, Trustee
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