DEED OF LEASE
THIS LEASE AGREEMENT (the "Lease") is made as of the 23 day of December,
2004, by and between ePLUS, INC. ("Tenant"), and Norton Building 1 LLC
("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 1 - 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) "Additional Rent" shall mean all sums payable by Tenant to Landlord
hereunder, other than Base Rent, including but not limited to payments required
pursuant to Section 2.4, Article 4 and Section 14.4 of this Lease.
(b) "Base Rent" shall mean the fixed rent paid annually during the Lease
Term. Base Rent for the first year of the Lease Term shall be the annual amount
of $979,524.00, based upon a rental rate of $19.50 per square foot of the Leased
Premises. The Base Rent is subject to annual increases, beginning in the second
year of the Lease Term, as set forth in Section 3.2 below.
(c) "Commencement Date" shall mean January 1, 2005.
(d) "Expiration Date" shall mean December 31, 2009.
(e) "Lease Term" shall mean the period commencing on the Commencement Date
and continuing through and including the Expiration Date.
(f) "Leased Premises" shall mean approximately 50,232 square feet of net
rentable area, which comprises the first floor area of 22,292 square feet, and
the second floor area of 27,940 square feet, 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 of the
Leased Premises.
ARTICLE 2 - THE LEASED PREMISES AND THE LEASE TERM
Section 2.1 Demise of the Leased Premises. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, the Leased Premises for the Lease Term, upon
the terms, conditions, covenants and agreements herein provided. Tenant's right
to lease the Leased Premises includes Tenant's right to use 4 unreserved parking
spaces per each 1,000 square feet of Leased Premises. At the time of the
commencement of this Lease, the Tenant shall be entitled to 204 parking spaces.
The number of parking spaces shall be reduced proportionately if any amount of
the Leased Premises are surrendered during the Lease Term.
Section 2.2 Renewal Right. Tenant shall have the right to renew this Lease for
one additional five (5) year period. To exercise its right to renew this Lease,
Tenant shall provide the Landlord with written notice to renew, to be provided
at least six months before the Expiration Date. The rent (and escalation
percentage) for the renewal period shall be set at the prevailing market rental
rates at the time. If the parties cannot agree on a rate within sixty (60) days
following Landlord's receipt of Tenant's notice to renew, then the parties shall
each select (at their own cost) a commercial real estate broker having at least
ten (10) years' experience in the northern Virginia leasing market. Said brokers
shall select a third such broker (whose fee shall be split equally by the
Landlord and Tenant), and each broker shall provide his or her opinion of the
then-current market rental rate and escalation percentage for the Leased
Premises. The average of the three rental rates determined by the brokers shall
be the beginning rental rate for the first year of the renewal period, and the
average of the annual escalation determined by the brokers shall be the annual
escalation during the renewal period. The Tenant can only renew the amount of
Leased Premises being leased at the Expiration Date of the Lease. The Tenant
does not have the right to renew space that is subleased, assigned, or that has
been surrendered.
Section 2.3 Loss of Renewal Rights. If the Lease is terminated prior to the
Expiration Date, and/or if more than 40% of the Leased Premises are assigned or
subleased during the Lease Term or the Lease is assumed, then the renewal rights
shall terminate (and may not be reinstated). Assignees and sublessees shall not
be entitled to any renewal rights.
Section 2.4 Early Termination Rights. Tenant may elect to terminate this Lease
with respect to up to 40% of the Leased Premises at any time during the Lease
Term by providing Landlord with six (6) months prior written notice. In such
event, the Base Rent and any Additional Rent shall be reduced proportionately,
effective upon the date of surrender. There shall be no penalty fee associated
with such termination; however, Tenant shall be liable to Landlord for normal
and reasonable restoration costs incurred by Landlord on account of damage to
the Leased Premises, and for costs of any alterations needed to secure the
surrendered space. These costs shall be paid by Tenant as Additional Rent, to be
paid within 60 days after invoice therefor by Landlord. The specific area of the
Leased Premises to be surrendered shall be mutually agreed upon by the Tenant
and Landlord, in order to provide for access and ADA requirements.
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In addition, the Tenant shall also have a one-time right to terminate the entire
Lease, on the third anniversary of the Commencement Date, by providing Landlord
with at least six (6) months prior written notice.
ARTICLE 3 - BASE RENT
Section 3.1 Base Rent. Tenant shall pay to Landlord the Base Rent for the Leased
Premises, without any abatement, reduction, setoff, defense, counterclaim or
demand except as specifically set forth herein. 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. The initial monthly rent shall be $81,627.00.
Section 3.2 Base Rent Increases. The Base Rent, net of expense factor of $8.00
per square foot, shall be increased by the amount of 3% on each annual
anniversary of the Lease Commencement Date, beginning one year from the
Commencement Date.
Section 3.3 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.
Section 3.4 Credit. In consideration for the financing by Tenant of all tenant
improvements, Landlord will provide an annual credit of $2.04 per square foot of
the Leased Premises against the Base Rent, for the duration of the Lease Term,
with said credit to terminate at the Expiration Date. In the event of any
surrender of any portion of the Leased Premises as permitted hereunder, the said
credit shall be adjusted proportionately to apply only to space for which Tenant
is paying Base Rent. Said credit shall not apply during any renewal term hereof.
ARTICLE 4 - 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 89.893% of any
increases to the operating charges and real estate tax payments for the Property
that exceed the Base Year Expenses, as said term is defined below. So long as
the Tenant occupies at least 80% of the building and there are no additional
tenants in the building, the Tenant shall be responsible for 100% of the
Utilities as referenced in section 4.2. If the Tenant occupies less than 80% of
the building or there are additional tenants in the building, the Tenant shall
be responsible for its pro rated portion of the Utilities. It is acknowledged
that the present monthly operating charge is $28,927.14, and the present monthly
real estate tax payment is $4,560.86, which total $401,856.00 for the year
("Base Year Expenses"). Beginning January 1, 2006, and continuing throughout
the Lease Term, Tenant shall pay to Landlord, as Additional Rent, 89.893%
of the amount by which all operating charges, insurance and real estate
taxes for the Building exceed the Base Year Expenses (collectively, the
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"Additional Expenses"). Tenant shall pay to Landlord in advance the estimated
annual Additional Expenses. The Landlord, at the commencement of each calendar
year following the first full year of the Lease Term, will deliver to the Tenant
an estimate of the anticipated Additional Expenses for that calendar year.
Tenant shall pay monthly one-twelfth (l/l2) of said estimated cost concurrently
with and in addition to the monthly installments of Base Rent. On or before the
forty-fifth (45th) day following each December 3lst during the Lease Term,
Landlord shall provide Tenant with a statement showing the actual Additional
Expenses for the preceding year or portion thereof and Landlord's computations
of Tenant's share thereof. If Tenant's share is less than the total amount of
the estimated cost paid in advance, Landlord shall reimburse Tenant for the
excess as a credit against the next installment(s) of Additional Expenses; and
if the Tenant's share exceeds the advanced estimated cost paid over the year,
Tenant shall pay Landlord for the difference, within thirty (30) days following
the date of delivery of said statement. Advance estimated Additional Expenses
shall be prorated for any partial calendar year. Failure by Landlord to deliver
to Tenant the statement of actual Additional Expenses within the time frame set
for the above shall not relieve Tenant of the obligation to make monthly
payments in accordance with the last estimate of Additional Expenses, nor shall
it be deemed a waiver by Landlord of the right to collect the difference between
Tenant's estimated payments and Tenant's pro-rata share of the actual Additional
Expenses for the preceding year. The Tenant shall be entitled to audit any
Additional Expenses, at Tenant's sole cost and expense. If the parties cannot
resolve any differences based upon any such audit, then the matter is to be
arbitrated by an arbitrator to be mutually selected by the parties. The parties
shall equally split the cost of the arbitrator. The Tenant acknowledges that it
has reviewed materials and documents related to the computation of operating
charges, insurance and real estate tax payments, as set forth above, and
acknowledges that these present expenses are reasonable, and understands that
these charges may increase.
Section 4.2 Utilities. All accounts for utility services to the Leased Premises
shall be in the name of Landlord and Tenant shall be responsible for payments.
Tenant shall reimburse Landlord for Utilities cost as part of the Operating
Expenses described in section 4.1 above.
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 Leased
Premises and shall be paid, without any abatement, reduction, setoff, defense,
counterclaim or deduction, on the first day of each month.
ARTICLE 5 - USE OF LEASED PREMISES
Section 5.1 Use of Leased Premises. Tenant may use and occupy the Leased
Premises for any lawful purpose. Tenant shall not use or occupy the Leased
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
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jurisdiction over the Leased Premises, concerning the use, occupancy and
condition of the Leased 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 Leased
Premises, Tenant will obtain such permit at Tenant's own expense.
ARTICLE 6 - 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 Leased Premises, or any part thereof,
without giving Landlord thirty (30) days' prior written notice of Tenant's
intention to assign or sublet the Leased Premises and obtaining the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
Provided, however, that notwithstanding anything to the contrary contained
herein, the Landlord may reject the intended sublessee and take back the portion
of the Leased Premises that was intended to be subleased (in which event the
Base Rent and Additional Rent shall be reduced proportionately). 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, and Tenant shall remain liable for the performance of all covenants
and obligations to be performed by Tenant hereunder notwithstanding any
assignment or sublease hereof. 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. In the
event the rental amount received by Tenant pursuant to any sublease or
assignment is higher than the Base Rent at such time or at any time thereafter,
then the Tenant shall pay the excess amount to the Landlord. In no event shall
any assignee or sub-lessee be entitled to any renewal rights, rights of first
offer or rights of first refusal described herein.
ARTICLE 7 - TENANT'S MAINTENANCE AND REPAIR
Section 7.1 Tenant to Maintain Leased Premises. Subject to the provisions of
Section 7.3, Tenant will keep and maintain the Leased Premises and all fixtures
and equipment located therein in a clean, safe and sanitary condition, will take
good care thereof, 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 Leased Premises broom clean, in the same order and
condition in which they are in on the Commencement Date, ordinary wear and tear
excepted.
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,
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ordinances, requirements, orders, directives, rules and regulations of the
federal and local governments and of all other governmental authorities
affecting the Leased 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.
Section 7.3 Landlord's Obligations. Landlord shall repair, maintain and replace,
as necessary (a) the Building shell and other structural portions of the
Building (including the roof and foundations), (b) the basic heating,
ventilating, air conditioning ("HVAC"), sprinkler and electrical systems within
the Building core and standard conduits, connections and distribution systems
thereof within the Leased Premises (but not any above standard improvements
installed in the Leased Premises such as, for example, but not by way of
limitation, custom lighting, special or supplementary HVAC or plumbing systems
or distribution extensions, special or supplemental electrical panels or
distribution systems, or kitchen or appliances to the extent such facilities and
appliances are intended for the exclusive use of Tenant), and (c) the common
areas of the Building.
ARTICLE 8 - TENANT ALTERATIONS AND RIGHTS
Section 8.1 "AS IS". The Tenant shall have the right to commence tenant
improvements upon execution of this Lease, subject to the Landlord approval
rights as described below. Tenant has had the opportunity to inspect the Leased
Premises (including, without limitation, all mechanical, electric, and plumbing
systems therein), and accepts the Leased Premises, and the land upon which the
Leased 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 Leased
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 Leased Premises, without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed. Landlord agrees to respond within thirty days
of any request hereunder. All work performed by Tenant shall be performed in a
good an workmanlike manner, in accordance with plans and permits approved and
issued by all applicable governmental bodies, agencies and authorities, and in
such a manner so as not to interfere with the occupancy and use of the common
areas of the Building or any other tenant space by any tenants and visitors in
the Building. Tenant shall permit no mechanic's liens to attach to the Leased
Premises, the Building or the land upon which the Leased Premises is located as
a result of such work, and in the event that any such mechanic's lien is filed
against the Leased Premises, the Building or the land upon which the Leased
Premises is located as a result of any services or labor provided, or materials
furnished, by or on Tenant's behalf, or claimed to have been provided by or on
Tenant's behalf, Tenant shall (i) promptly notify Landlord of such lien, and
(ii) within ten (10) calendar days after the filing of any such lien, discharge
and cancel such lien of record by payment or bonding in accordance with the laws
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of the Commonwealth of Virginia, all at Tenant's sole cost and expense.
Section 8.2 Roof Rights. During the Lease Term and any renewal period, for no
additional charge, Tenant shall have the right to install, for use by Tenant,
satellite dishes or other communication equipment on the roof of the Building,
at Tenant's sole cost and expense. The size, type and location of said equipment
shall be mutually agreed upon by the Landlord and Tenant, and the installation
and use of such equipment shall comply with all applicable laws, ordinances and
regulations.
Section 8.3 Signage. During the Lease Term and any renewal period, the Tenant
shall have the right to install on the exterior of the Building in a prominent
location, at Tenant's sole cost and expense, one exterior lighted building sign,
which shall conform to all local, state and federal regulations. The Tenant has
a right to keep a sign displayed as long as the Tenant occupies more than fifty
percent (50%) of the Building. The Tenant must obtain the prior written approval
of Landlord, which shall not be unreasonably withheld, conditional or delayed.
Upon expiration or earlier termination of this Lease, or at such time as Tenant
occupies less than fifty percent (50%) of the Building, Tenant shall remove such
signage at Tenant's sole cost and expense.
Section 8.4 Lobby Area. The Tenant shall be allowed to construct a reception
desk in the main lobby of the Building, for use by Tenant as its main reception
area, at no additional charge to Tenant. This right shall extend to any renewal
period. Tenant acknowledges that it is not leasing the entire Building, and will
have to provide access and usage rights to other tenants through and across the
lobby area.
ARTICLE 9 - 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 Leased 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 Leased
Premises. Notwithstanding anything to the contrary contained herein, in the
event of an emergency, Landlord shall have the right to enter the Leased
Premises at any time and without prior notice to Tenant. During the last six (6)
months of the Lease Term, Landlord may show the Leased Premises to prospective
tenants. In connection with any such entry, Landlord shall endeavor to minimize
the disruption to Tenant's use of the Leased Premises.
ARTICLE 10 - INSURANCE
Section 10.1 Required Insurance and Terms of Insurance Policies. At the earlier
of (i) the time that Tenant commences tenant improvements, or (ii) the
Commencement Date, and 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
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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. Any and all insurance proceeds shall either be used
to restore the Leased Premises damaged, or provided to the Landlord per Section
12.1 below. Landlord's interest must be clearly stated by endorsement in the
insurance policies described in this Article 10, as follows:
(a) Landlord shall, at its sole expense, obtain and keep in force
throughout the term of this Lease, full replacement value fire and extended
coverage or "all-risk" coverage insurance in the customary form utilized in the
northern Virginia area for buildings and improvements of similar character, on
all improvements now or after this date located on the Premises.
(b) Tenant shall, at its sole expense, obtain and keep in force during the
term of this Lease commercial general liability insurance with limits of not
less than One Million Dollars ($1,000,000.00) per occurrence and Three Million
Dollars ($3,000,000.00) in the aggregate as to liability for personal injury to
or death of any person, and for damage to property, insuring against any and all
liability of Landlord and Tenant, including, without limitation, coverage for
contractual liability and broad form property damage with respect to the
Premises, or arising out of the maintenance, use, or occupancy of the Premises.
(c) Tenant shall, at its sole expense, obtain and keep in force during the
Lease Term policies of insurance covering Tenant's fixtures and equipment
installed and located in the Leased Premises, and in addition thereto, covering
all of the furnishings, merchandise and other contents in the Leased Premises,
for the full replacement value of said items. Coverage should at least insure
against any and all perils included within the classification "Fire and Extended
Coverage" under insurance industry practice in the Commonwealth of Virginia,
together with insurance against vandalism, malicious mischief and sprinkler
leakage or other sprinkler damage.
(d) All insurance policies required from Tenant hereunder shall (i) be
subject to approval by Landlord and any mortgagee as to form and amount; (ii)
expressly provide that such policies shall not be canceled or altered without
thirty (30) days' prior written notice to Landlord and any mortgagee; (iii)
provide that no act or omission of Tenant that would otherwise result in
forfeiture or reduction of the insurance shall affect or limit the obligation of
the insurance company to pay the amount of any loss sustained; and (iv) to the
extent obtainable, contain a waiver by the insurer of its rights of subrogation
against Landlord and Tenant. All such policies shall name the Tenant as the
insured and the Landlord as the additional insured. Upon issuance, each such
insurance policy or a certified copy of such policy shall be delivered to the
Landlord and any lender whom Landlord designates.
ARTICLE 11 - LIABILITY OF LANDLORD
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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, 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 Leased Premises;
interruption in the use of the Leased 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 Leased Premises;
any fire, robbery, theft, mysterious disappearance and/or any other casualty;
the actions of any other tenants of the Leased Premises or of any other person
or persons; and any leakage in any part or portion of the Leased Premises, or
from water, rain or snow that may leak into, or flow from, any part of the
Leased Premises, or from drains, pipes or plumbing work in the Leased Premises.
Any goods, property or personal effects stored or placed by Tenant or its
employees in or about the Leased Premises shall be at the sole risk of Tenant,
and Landlord shall not in any manner be held responsible therefor.
Section 11.2 Indemnification. Tenant hereby agrees to indemnify and hold
Landlord and Landlord's agents and its and their officers, directors, and
employees (collectively, the "Landlord Indemnified Parties"), 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 Leased 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. Notwithstanding anything to the
contrary contained in this Section, Tenant shall not be required to protect,
defend, save harmless or indemnify Landlord Indemnified Parties from any
liability for injury, loss, accident or damage to any person resulting from
Landlord's willful misconduct or that of any Landlord Indemnified Party on or
about the Leased Premises.
Section 11.3 Transfer of Leased Premises. In the event that at any time Landlord
shall sell or transfer the Leased 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 Leased 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 Leased
Premises and the income and proceeds therefrom. 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.
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ARTICLE 12 - DAMAGE OR DESTRUCTION
Section 12.1 Restoration. Tenant shall give prompt notice to Landlord in case of
any casualty to the Leased Premises or the Building. If the Leased Premises or
the Building shall be damaged by fire or other casualty, then Landlord may
terminate this Lease, effective as of the date of the casualty, by notice given
within ninety (90) days after such event. In the event this Lease is terminated
as provided in this Section 12.1: (i) the entire proceeds of the insurance
provided for in Section 10.1(a) hereof shall be paid by the insurance company or
companies directly to Landlord and shall belong to, and be the sole property of,
Landlord; (ii) the portion of the proceeds of the insurance provided for in
Section 10.1(c) which is insuring leasehold improvements, equipment, fixtures
and other items, which by the terms of this Lease or applicable law, rightfully
belong to the Tenant upon the termination of the Lease by whatever cause shall
belong to, and be the sole property of, Tenant; (iii) Tenant shall immediately
vacate the Leased Premises in accordance with this Lease; (iv) all Base Rent and
Additional Rent shall be apportioned and paid to the date on which possession is
relinquished or the date of such damage, whichever last occurs; and (v) Landlord
and Tenant shall be relieved from any and all further liability or obligation
hereunder except as expressly provided in this Lease. Tenant hereby waives any
and all rights to terminate this Lease that it may have, by reason of damage to
the Premises by fire or other casualty, pursuant to any presently existing or
hereafter enacted statute or pursuant to any other law. If all or any portion of
the Leased Premises is damaged by fire or other casualty and this Lease is not
terminated in accordance with the provisions of this section, then all insurance
proceeds under the policies referred to in Sections 10.1(a) and 10.1(c) hereof
that are recovered on account of any such damage by fire or casualty shall be
made available for the payment of the cost of repair, replacing and rebuilding,
and as soon as practicable after such damage occurs Landlord shall, using the
proceeds provided for by Section 10.1(a) (and, to the extent applicable,
proceeds from insurance policies provided for by Section 10.1(c)) hereof, repair
or rebuild the Leased Premises or such portion thereof to its condition
immediately prior to such occurrence to the extent the cost therefor is fully
funded by insurance proceeds. In no event shall Landlord be obligated to repair
or replace Tenant's movable trade fixtures, equipment or personalty. In
addition, Tenant shall, using the remaining proceeds of the insurance proceeds
from policies provided for in Section 10.1(c) hereof, repair, restore and
replace Tenant's movable trade fixtures, personalty and equipment. If the
aforesaid insurance proceeds under the insurance provided for in Section 10.1(c)
hereof shall be less than the cost of repairing or replacing Tenant's movable
trade fixtures, equipment and personalty, or other items required to be insured
by Tenant pursuant to Section 10.1(c) hereof, Tenant shall pay the entire excess
cost thereof; and if such insurance proceeds shall be greater than the cost of
such repair, restoration, replacement or rebuilding, the excess proceeds shall
belong to, and be the property of, Tenant. Notwithstanding the foregoing, Tenant
shall have no right to terminate this Lease as a result of, and shall be solely
responsible for all costs incurred in repairing, any damage to the Leased
Premises or Building caused by the Tenant or its agents, employees, contractors,
invitees and licensees.
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ARTICLE 13 - CONDEMNATION
Section 13.1 Effect of Condemnation. If the whole or a substantial part (as
hereinafter defined) of the Leased Premises or the use or occupancy of the
Leased 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 Leased
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 Leased 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 Leased Premises shall be considered to have been taken
if more than twenty-five percent (25%) of the Leased Premises is rendered
unusable as a result of such taking and Tenant determines in its sole but
reasonable discretion that it can no longer conduct its business in the Leased
Premises.
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 Leased
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 (i) for the value of furnishings, equipment and trade
fixtures installed in the Leased Premises at Tenant's expense and (ii) 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 14 - 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.
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(c) If Tenant shall vacate or abandon the Leased 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,
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 Base 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 Base 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 thirty-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 Leased Premises immediately, and deliver possession thereof to Landlord,
and Tenant hereby grants to Landlord full and free license to enter into and
upon the Leased Premises in such event and to repossess Landlord of the Leased
Premises as of Landlord's former estate and to expel or remove Tenant and any
others who may be occupying or be within the Leased 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
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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
Leased 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 Leased Premises, and preparation for reletting
excluding, however, the costs of construction not arising from damage caused by
Tenant; 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.
(ii) Landlord shall use commercially reasonable efforts to relet the Leased
Premises. Landlord may relet the Leased 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 Leased Premises for a greater or lesser term
than that remaining under this Lease, the right to relet the Leased Premises as
a part of a larger area, and the right to change the character or use made of
the Leased 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 Leased 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 Leased 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 tenant space in the Property
generally and that in any case Landlord shall not be required to give any
preference or priority to the showing or leasing of the Leased 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
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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 Leased 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 Leased
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 Leased 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 Leased
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 Leased
Premises, Landlord may at Landlord's option re-enter the Leased 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 Leased Premises as Landlord shall elect, all
without any abatement of any of the rent otherwise to be paid by Tenant under
this Lease.
(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.
(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
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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 Leased Premises, and no agreement to terminate this Lease or accept a
surrender of the Leased 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) Any and all property which may be removed from the Leased 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 Leased 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.
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 Base 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
15
(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 that is thirty (30)
days after the date that 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 15 - 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 Leased Premises and/or the land on which
the Leased 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 fourteen (14) 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 use commercially-reasonable efforts to 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 Leased Premises or
the termination of any ground lease affecting the Leased 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.
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 Leased Premises are a part,
respecting all matters of occupancy, use, condition or maintenance of the Leased
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
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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 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 16 - HOLD OVER
Section 16.1 Hold Over. In the event that Tenant shall not immediately surrender
the entire Leased Premises on the date of the expiration of the Lease Term,
Tenant shall become a Tenant by the month at 150% 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, except for the amount of the Base Rent,
which shall be in the amount specified in this paragraph. During the holdover
period (if any), the Landlord will provide the Tenant with the right to match
the terms of any lease offer received by the Landlord (if any) during the
holdover period, with said right of first refusal to be accepted within 30 days
of the receipt of such offer, and further conditioned upon the Tenant being
credit-worthy. The Landlord shall remain entitled to all rights and remedies
afforded to Landlord due to Tenant's failure to surrender the Leased Premises,
and Tenant shall remain liable for any damages or losses suffered by Landlord
during said holdover period.
ARTICLE 17 - 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 Leased 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.
Section 17.2 HVAC. Landlord represents and warrants that all HVAC systems will
be operating at the commencement date in reasonable condition. Replacement of
any HVAC system will be the responsibility of Landlord, and shall be covered by
normal operating capital reserves.
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Section 17.3 Compliance. Landlord represents and warrants that at the time of
execution of the Lease, the Leased Premises shall comply with all local, state
and federal codes, including ADA laws.
ARTICLE 18 - 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 Leased Premises, the Building or the land on which
the Leased 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
as creating 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.
Section 18.4 Estoppel Certificates. At any time from time to time, upon not less
than fifteen (15) 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 Leased Premises or the land upon
which it is situated, any prospective purchaser of the Leased Premises or such
land, any mortgagee or prospective mortgagee of the Leased 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 LEASED PREMISES, AND/OR ANY CLAIM OR INJURY OR
DAMAGE.
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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
be deemed to have been given when hand-delivered, one (1) business day after
being sent by overnight delivery or courier service, or three (3) business days
after being sent by certified or registered mail, return receipt requested, and
addressed as follows: (i) if to Landlord, at 1166 Chain Bridge Rd, McLean, VA
22101; (ii) if to Tenant, at 13595 Dulles Technology Drive, Herndon, Virginia
20170. 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 Leased Premises or an option to or for the Leased 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.
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.
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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.
Section 18.18 Right of First Offer. The Tenant shall have the right of first
offer on any additional spaces that may become available for lease in the
Building during the Lease Term. Landlord agrees to provide written notice of
availability and Tenant shall have ten (10) business days to respond by
delivering written notice to Landlord of Tenant's election either to lease, or
not to lease, the additional space. If no response is received by Landlord
within such 10-day period, Tenant shall conclusively be deemed to have elected
not to lease such available space. If Tenant elects to lease such additional
space, the terms and conditions shall be identical (or proportional, as the case
may be) to those of this Lease. In the event Tenant elects to lease less than
all of the space which becomes available, equitable allowance shall be made for
Landlord's recapture of any extraordinary construction costs, creation of
additional core, or adverse effects on the marketability of Landlord's remaining
space.
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: Executive Vice President
------------------------
LANDLORD:
NORTON BUILDING 1, LLC.
By: /s/ PHILLIP G. NORTON
--------------------------
Phillip G. Norton, Trustee
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