1
LEASE
BETWEEN
RHI HOLDINGS, INC.,
A DELAWARE CORPORATION
AS LANDLORD
- AND -
BANNER AEROSPACE SERVICES, INC.
AS TENANT
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TABLE OF CONTENTS
ARTICLE 1: DEMISED PREMISES, COMMON AREAS AND USE OF DEMISED PREMISES
1.1 Agreement to Lease.
1.2 Use of Demised Premises.
1.3 Use of Common Areas.
1.4 Uses Reserved Exclusively to Landlord.
1.5 Relocation of Demised Premises.
ARTICLE 2: TERM OF LEASE AND DELIVERY OF DEMISED PREMISES
2.1 Base Term.
2.2 Early Termination Option
ARTICLE 3: RENT
3.1 Minimum Rent.
3.2 Intentionally Omitted
3.3 Intentionally Omitted
3.4 Payment of Rent.
ARTICLE 4: ANNUAL COST OF LIVING ADJUSTMENT TO MINIMUM RENT
4.1 Annual CPI Adjustment.
4.2 Example of CPI Adjustment.
4.3 Alternative Index.
ARTICLE 5: ADJUSTMENTS TO RENT FOR INCREASED OPERATING EXPENSES
/ NOT APPLICABLE
ARTICLE 6: SECURITY DEPOSIT / NOT APPLICABLE
ARTICLE 7: ASSIGNMENT AND SUBLETTING
7.1 General.
7.2 Submission of Information.
7.3 Payments to Landlord.
7.4 Change in Control as a Prohibited Transfer.
7.5 Terms of Consent To Assignments or Subleases.
ARTICLE 8: INITIAL IMPROVEMENTS
ARTICLE 9: ALTERATIONS
9.1 No Alterations, Improvements or Fixtures Without Consent.
9.2 Removal.
ARTICLE 10: TENANT'S CARE OF THE DEMISED PREMISES, BUILDING RULES AND
REGULATIONS, AND LANDLORD ACCESS
10.1 Maintenance and Surrender of Demised Premises.
10.2 Tenant Equipment.
10.3 Removal of Fixtures and Alterations Upon End of Lease.
10.4 Use of Demised Premises Affecting Insurance Rating.
10.5 Compliance With Building Rules and Regulations.
10.6 Miscellaneous Covenants and Agreements.
10.7 Landlord Entry for Repairs and Inspection.
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ARTICLE 11: TENANT'S INSURANCE
11.1 Coverage.
11.2 Policy Requirements.
11.3 Landlord's Right to Maintain Coverage.
11.4 Insurance Coverage Does Not Limit Tenant's Liability.
11.5 Compliance With Insurance Requirements.
11.6 Waiver of Subrogation.
ARTICLE 12: UTILITIES, SERVICES AND SERVICE DISCLAIMER
12.1 General Provisions Applicable To Landlord Services; Definition
of Business Hours.
12.2 Electrical Current, Heating and Air Conditioning.
12.3 Other Landlord Services.
12.4 Utility Charges in Excess of Basic Service; Meters.
12.5 Services Disclaimer.
ARTICLE 13: CASUALTY AND CONDEMNATION
13.1 Fire and Other Casualty Damage to Demised Premises.
13.2 Condemnation.
ARTICLE 14: TENANT EVENTS OF DEFAULT AND LANDLORD REMEDIES
14.1 Events of Default Defined.
14.2 Events of Default Not Affected by Security Deposit or
Acceptance of Rent.
14.3 Remedies Upon Event of Default.
14.4 Liability of Tenant.
14.5 Liquidated Damages.
14.6 Attorney's Fees.
14.7 No Jury Trial; Arbitration
14.8 Right to Enjoin, Etc.
14.9 Intentionally Omitted
14.10 Remedies Cumulative.
14.11 No Waiver of Tenant Defaults.
14.12 Right of Landlord to Cure Tenant Events of Default.
14.13 Late Payments.
14.14 Definition of Default Rate.
ARTICLE 15: SUBORDINATION, ATTORNMENT AND RELATED PROVISIONS
15.1 Subordination.
15.2 Estoppel Certificates.
15.3 Modification of Lease for Financing Requirements.
ARTICLE 16: LIMITATION OF LANDLORD'S LIABILITY; TENANT INDEMNITY
OBLIGATIONS
16.1 No Personal Obligations; Liability Limited to Building.
16.2 Force Majeure.
16.3 No Liability for Damage to Personal Property and Person.
16.4 Tenant's Indemnity Obligations.
ARTICLE 17: PARKING
17.1 Allotted Parking and Designated Parking Areas.
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17.2 Revocation or Reductions of Parking License.
17.3 No Liability for Damage to Vehicles.
17.4 Parking License Not Assignable.
ARTICLE 18: RENEWAL AND EXTENSION OPTIONS / NOT APPLICABLE
ARTICLE 19: HOLDING OVER
ARTICLE 20: MISCELLANEOUS
20.1 Brokers.
20.2 Notices.
20.3 Covenants of Landlord.
20.4 Successors and Assigns.
20.5 Time of the Essence.
20.6 No Recordation.
20.7 Captions.
20.8 Landlord Approvals.
20.9 Landlord's Fees.
20.10 Entire Agreement.
20.11 Applicable Laws.
20.12 No Option.
20.13 Partial Invalidity
20.14 Pronouns.
ARTICLE 21: ENVIRONMENTAL COMPLIANCE
ARTICLE 22: INDEX OF DEFINED TERMS
* * *
EXHIBITS
Exhibit A: Demised Premises
Exhibit C: Rules and Regulations
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") dated as April 1, 1996, by and between
RHI HOLDINGS, INC., a Delaware corporation ("Landlord"), and Banner Aerospace
Services, Inc., a Delaware corporation ("Tenant").
In consideration of the mutual agreement hereinafter set forth, the
parties do hereby agree as follows:
AN INDEX OF DEFINED TERMS IS SET FORTH IN ARTICLE 22 BELOW.
ARTICLE 1
DEMISED PREMISES, COMMON AREAS AND USE OF DEMISED PREMISES
1.1 AGREEMENT TO LEASE.
Landlord does hereby lease to Tenant and Tenant does hereby lease from Landlord,
for the term and upon the conditions hereinafter provided, approximately 9,745
square feet of rentable space on the third floor and approximately 605 square
feet of storage space in the basement (collectively, the "Demised Premises") of
the building located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Dulles International
Airport, Chantilly, VA 22021 (the "Building"), as shown on the plan attached
hereto as Exhibit A. [The parties acknowledge and agree that the Demised
Premises space on the third floor consists of approximately 9,780 rentable sq.
ft.; however, rent shall be based on 9,745 rentable sq. ft.]
The real property on which the Building is located, together with the
surrounding real property and parking area, Plot C-7-4, are collectively
referred to herein as the "Real Property."
The Building and the Real Property are sometimes collectively referred to herein
as the "Project."
1.2 USE OF DEMISED PREMISES.
Tenant will use and occupy the Demised Premises solely for general office
purposes and uses incident thereto in accordance with the certificate of
occupancy and applicable zoning regulations, and for no other purpose. Tenant
will not use or occupy the Demised Premises for any unlawful, disorderly, or
extra hazardous purpose, and will not manufacture any commodity or prepare or
dispense any food or beverage therein, except for Tenant's personal use in the
Demised Premises. Tenant will comply
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with all present and future laws, regulations and governmental requirements of
any governmental or public authority having jurisdiction over the Demised
Premises.
1.3 USE OF COMMON AREAS.
As used in this Lease, the term "Common Areas" means, without limitation, the
hallways, entryways, stairs, elevators, driveways, walkways, terraces, docks,
loading areas, restrooms, trash facilities, and all other areas and facilities
in the Project that are provided and designated from time to time by Landlord
for the general nonexclusive use and convenience of Tenant with Landlord and
other tenants of the Building and their respective employees, invitees,
licensees, or other visitors. Landlord grants Tenant, its employees, invitees,
licensees, and other visitors a nonexclusive license for the term to use the
Common Areas in common with others entitled to use the Common Areas, subject to
the terms and conditions of this Lease. Without advance written notice to
Tenant, and without any liability to Tenant in any respect, provided Landlord
will take no action permitted under this SECTION 1.3 in such a manner as to
materially impair or adversely affect Tenant's substantial benefit and enjoyment
of the Demised Premises, Landlord will have the right to:
(a) Close off any of the Common Areas to whatever extent required in
the opinion of Landlord and its counsel to prevent a dedication of any of the
Common Areas or the accrual of any rights by any person or the public to the
Common Areas;
(b) Temporarily close any of the Common Areas for maintenance,
alteration, or improvement purposes; and
(c) Change the size, use, shape, or nature of any Common Areas,
including erecting additional buildings on the Common Areas, expanding the
existing Building or other buildings to cover a portion of the Common Areas,
converting Common Areas to a portion of the Building or other buildings, or
converting any portion of the building (excluding the Demised Premises) or other
buildings to Common Areas. Upon erection of any additional buildings or change
in Common Areas, the portion of the Project upon which buildings or structures
have been erected will no longer be deemed to be a part of the Common Areas.
1.4 USES RESERVED EXCLUSIVELY TO LANDLORD.
As between Landlord and Tenant, Landlord retains unto itself the sole and
exclusive use of the roof, the exterior walls and the Common Areas of the
Building.
1.5 RELOCATION OF DEMISED PREMISES.
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Landlord reserves the right to relocate the Demised Premises to substantially
comparable space within the Building. Landlord will give Tenant a written notice
of its intention to relocate the Demised Premises, and Tenant will complete such
relocation within 30 days after receipt of such written notice. If Tenant
relocates to comparable space within the Building pursuant to this SECTION 1.5,
then, effective on the date of such relocation, this Lease will be amended by
deleting the description of the original Demised Premises and substituting for
it a description of such comparable space. Landlord agrees to reimburse Tenant
for its actual reasonable moving costs to such other space within the Building,
the reasonable costs of reprinting stationery, the costs of rewiring the new
premises for telephone and computers comparably to the original Demised
Premises, and the cost of upfitting the new premises with the same improvements
as the Demised Premises. In the event Landlord relocates Tenant pursuant to this
Section 1.5 in order to accommodate a new Tenant in the Demised Premises, any
base rent payable by such new tenant for such space in excess of the base rent
under this Lease, shall be shared by Landlord and Tenant 50/50 for the remaining
term of this Lease or for as long as the new tenant continues to pay such
increased rent (whichever period is shorter).
ARTICLE 2
TERM OF LEASE AND DELIVERY OF DEMISED PREMISES
2.1 BASE TERM.
This Lease shall be for a term of Ten Years (or until such term shall sooner
terminate as hereinafter provided), beginning on April 1, 1996 (the "Lease
Commencement Date") and ending at midnight on March 31, 2006 (the "Termination
Date").
2.2 EARLY TERMINATION OPTION.
Provided Tenant is not then in default under the terms of this Lease, at any
time after the fifth anniversary of this Lease, Tenant may give a one year
written notice to cancel the remaining Term without penalty and vacate the
Premises at the end of the notice period.
ARTICLE 3
RENT
3.1 MINIMUM RENT.
Tenant covenants and agrees to pay to Landlord, "Minimum Rent" of $14,107.92 per
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month, payable in advance on the first day of each calendar month during the
term of this Lease, subject to adjustment as provided in ARTICLES 4 AND 5 below.
(Such rent is based on $17 per sq. ft. times an assumed rentable office space of
9,745 sq. ft for Third Floor Space; and $6 per sq. ft. times 605 sq. ft. of
rentable storage space in the basement.)
3.2 INTENTIONALLY OMITTED
3.3 INTENTIONALLY OMITTED
3.4 PAYMENT OF RENT.
Tenant will pay all Minimum Rent and any other amounts due under this Lease
("Rent") without demand, deduction, set-off or counterclaim, by check to
Landlord at:
RHI Holdings, Inc.
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-- 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 or
times accept any Rent after it has become due and payable, such acceptance shall
not excuse delay upon subsequent occasions, or constitute a waiver of any or all
of Landlord's rights hereunder.
ARTICLE 4
ANNUAL ADJUSTMENT TO MINIMUM RENT
On the anniversary of the Commencement Date and every twelve months thereafter
("Adjustment Dates"), Minimum Rent (then in effect) shall be increased by 3%.
ARTICLE 5
ADJUSTMENTS TO RENT FOR INCREASED OPERATING EXPENSES
Not Applicable
ARTICLE 6
SECURITY DEPOSIT
Not Applicable
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ARTICLE 7
ASSIGNMENT AND SUBLETTING
7.1 GENERAL.
Tenant, for itself, its heirs, distributees, executors, administrators, legal
representatives, successors, and assigns, covenants that it will not assign,
transfer by operation of law or otherwise, mortgage, or encumber this Lease, nor
sublease, nor permit the Demised Premises or any part of the Demised Premises to
be used or occupied by others, without the prior written consent of Landlord in
each instance, which consent shall not be unreasonably withheld. Any assignment
or sublease in violation of this ARTICLE 7 will be void. If this Lease is
assigned, or if the Demised Premises or any part of the Demised Premises are
subleased or occupied by anyone other than Tenant, Landlord may, after default
by Tenant, collect Rent from the assignee, subtenant, or occupant, and apply the
net amount collected to Rent. No assignment, sublease, occupancy, or collection
will be deemed (a) a waiver of the provisions of this SECTION 7.1; (b) the
acceptance of the assignee, subtenant, or occupant as Tenant; or (c) a release
from the further performance by Tenant of its covenants and obligations
contained in this Lease. The consent by Landlord to an assignment or sublease
will not be construed to relieve Tenant from obtaining Landlord's prior written
consent in writing to any further assignment or sublease. No permitted subtenant
may assign or encumber its sublease or further sublease all or any portion of
its subleased space, or otherwise permit the subleased space or any part of its
subleased space to be used or occupied by others, without Landlord's prior
written consent in each instance.
7.2 SUBMISSION OF INFORMATION.
If Tenant requests Landlord's consent to a specific assignment or subletting,
Tenant will submit in writing to Landlord (a) the name and address of the
proposed assignee or subtenant; (b) the business terms of the proposed
assignment or sublease; (c) reasonably satisfactory information as to the nature
and character of the business of the proposed assignee or subtenant, and as to
the nature of its proposed use of the space; (d) banking, financial, or other
credit information reasonably sufficient to enable Landlord to determine the
financial responsibility and character of the proposed assignee or subtenant;
and (e) the proposed form of assignment or sublease for Landlord's approval.
7.3 PAYMENTS TO LANDLORD.
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If Landlord consents to a proposed assignment or sublease, then Landlord will
have the right to require Tenant to pay to Landlord a sum equal to 50% of: (a)
any Rent or other consideration paid to Tenant by any proposed transferee that
(after deducting the costs to Tenant, if any, in effecting the assignment or
sublease, including reasonable alterations costs, commissions and legal fees) is
in excess of the Rent allocable to the transferred space then being paid by
Tenant to Landlord pursuant to this Lease; (b) any other profit or gain (after
deducting any necessary expenses incurred) realized by Tenant from any such
sublease or assignment; and (c) Landlord's reasonable attorneys' fees and costs
incurred in connection with negotiation, review, and processing of the transfer.
All such sums will be payable to Landlord at the time the next payment of
Minimum Rent is due.
7.4 CHANGE IN CONTROL AS A PROHIBITED TRANSFER.
The transfer of a majority of the issued and outstanding capital stock of any
corporate Tenant or subtenant of this Lease, or a majority of the total interest
in any partnership Tenant or subtenant, however accomplished, and whether in a
single transaction or in a series of related or unrelated transactions, will be
deemed an assignment of this Lease or of such sublease requiring Landlord's
consent in each instance.
7.5 TERMS OF CONSENT TO ASSIGNMENTS OR SUBLEASES.
In the event Landlord consents to any assignment or sublease, a dully executed
copy of the sublease or assignment shall be delivered to Landlord within ten
(10) days after execution thereof. Any such sublease shall provide that the
subtenant shall comply with all applicable terms and conditions of this Lease to
be performed by the Tenant hereunder. Any such assignment of this Lease shall
contain an assumption by the assignee of all of the terms and obligations of
this Lease to be performed by the Tenant. Tenant covenants that, notwithstanding
any such assignment or transfer, and notwithstanding the acceptance of Rent by
Landlord from an assignee or transferee or any other party, the Tenant shall
remain fully liable for the payment of Rent due and to become due under this
Lease and for the performance of all of the covenants, agreements, terms,
provisions and conditions of this Lease on the part of Tenant to be performed or
observed.
ARTICLE 8
INITIAL IMPROVEMENTS
Tenant accepts the Demised Premises "As Is." The parties acknowledge and agree
that Landlord granted to Tenant the right to alter and remodel the Demised
Premises, at Tenant's expense, for Tenant's intended use in conjunction with the
commencement of the Lease ("Initial Improvements"). Such Initial Improvement
have been completed,
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and approved by Landlord and Tenant. Such Initial Improvements shall not be
subject to the removal conditions set forth in Section 9.2 hereof;
ARTICLE 9
ALTERATIONS
9.1 NO ALTERATIONS, IMPROVEMENTS OR FIXTURES WITHOUT CONSENT.
After completion of the Initial Improvements, Tenant will not make or allow to
be made any further alterations, additions, or improvements to the Demised
Premises, or attach any fixtures or equipment to the Demised Premises, without
first obtaining Landlord's written consent. All alterations, additions, and
improvements consented to by Landlord must be performed by contractors approved
by Landlord and must conform to all governmental and insurance rules and
regulations established from time to time. As a condition precedent to
Landlords's written consent, Tenant agrees to obtain and deliver to Landlord
written and unconditional waivers of mechanics' and materialmen' liens upon the
Project for all work, labor and services to be performed, and materials to be
furnished, by them in connection with such work, signed by all contractors,
subcontractors, materialmen and laborers to become involved in such work. If,
notwithstanding the foregoing, any mechanics' or materialmen's lien is filed
against the Demised Premises, the Building or the Project, for work claimed to
have been done for, or materials claimed to have been furnished to Tenant, such
lien shall be discharged by Tenant within ten (10) days thereafter, at Tenant's
sole cost and expense, by the payment thereof or by filing any bond required by
law. If Tenant shall fail to discharge any such mechanic's or materialmen's
lien, Landlord may, at its option, discharge the same and collect same as
Additional Rent together with interest on the amount thereof from the date of
payment by Landlord until the date of repayment by Tenant at the Default Rate
(as defined in SECTION 14.14); it being hereby expressly covenanted and agreed
that such discharge by Landlord shall not be deemed to waive, or release the
default of Tenant in not discharging the same.
9.2 REMOVAL.
Unless Landlord, at its sole discretion, elects otherwise (either at the time of
granting consent or any time thereafter), all alterations, additions, fixtures,
and improvements that are made in or upon the Demised Premises pursuant to this
ARTICLE 9 (other than the Initial improvements) shall be removed by Tenant at
its sole cost prior to the end of the term of this Lease, and Tenant will
restore the Demised Premises to the condition in which they were before such
alterations, additions, fixtures, improvements, and additions were made,
reasonable wear and tear excepted.
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ARTICLE 10
TENANT'S CARE OF THE DEMISED PREMISES, BUILDING RULES AND
REGULATIONS, AND LANDLORD ACCESS
10.1 MAINTENANCE AND SURRENDER OF DEMISED PREMISES.
Tenant, at its sole cost and expense, shall keep the Demised Premises (including
all improvements, fixtures and all other property contained in the Demised
Premises) in a neat, safe, and clean condition, and in good order and repair,
and will surrender the Demised Premises at the end of the term in as good order
and condition as they were at the commencement of the term, except for
reasonable wear and tear. Tenant shall not commit or suffer to be committed any
waste upon the Demised Premises or any nuisance or other act or thing which may
disturb the quiet enjoyment or interfere with, inhibit or preclude any permitted
use of any other tenant in the Building or any person outside the Building.
10.2 TENANT EQUIPMENT.
Maintenance and repair of equipment such as kitchen fixtures, separate air
conditioning equipment, or any other type of special equipment, whether
installed by Tenant or by Landlord on behalf of Tenant, shall be the sole
responsibility of Tenant, and Landlord shall have no obligation in connection
therewith.
10.3 REMOVAL OF FIXTURES AND ALTERATIONS UPON END OF LEASE.
On or prior to the end of the term, Tenant shall remove from the Demised
Premises all (i) trade fixtures, (ii) furniture, (iii) equipment and machinery,
and (iv) alterations, additions or improvements required to be removed by Tenant
in accordance with ARTICLE 9 (collectively, "Tenant Fixtures, Equipment and
Alterations").
Tenant will fully repair any damage occasioned by the removal of any Tenant
Fixtures and Alterations. All Tenant Fixtures, Equipment and Alterations on the
Demised Premises after the end of the term will be deemed conclusively to have
been abandoned and may be appropriated, sold, stored, destroyed, or otherwise
disposed of by Landlord without written notice to Tenant or any other person and
without obligation to account for them. Tenant will pay Landlord for all
expenses incurred in connection with the removal of such property, including but
not limited to the cost of repairing any damage to the Building or the Demised
Premises caused by the removal of such property. Tenant's obligation to observe
and perform this covenant will survive the expiration or other termination of
this Lease.
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Nothing herein shall be deemed to require Tenant to remove the Initial
Improvements (as defined in Article 8).
10.4 USE OF DEMISED PREMISES AFFECTING INSURANCE RATING.
Tenant will not conduct or permit to be conducted any activity or place any
equipment in or about the Demised Premises, which will, in any way, increase the
rate of insurance premiums on the Building or the Real Property. If any increase
in the rate of insurance is stated by any insurance company or by the applicable
Insurance Rating Bureau to be due to any activity or equipment in or about the
Demised Premises, such statement shall be conclusive evidence that the increase
in such rate is due to Tenant's activity or equipment and, as a result thereof,
Tenant shall be liable for such increase and shall reimburse Landlord therefor,
within 10 (10) days of receipt of written notice.
10.5 COMPLIANCE WITH BUILDING RULES AND REGULATIONS.
Tenant, its agents and employees shall abide by and observe the rules and
regulations attached hereto and made a part hereof as EXHIBIT C and such other
rules and regulations as may be promulgated from time to time by Landlord for
the operation and maintenance of the Building, the Real Property and the
Project, provided that the same are not inconsistent with the provisions of this
Lease and Tenant is given notice thereof. Nothing contained in this Lease shall
be construed to impose upon Landlord any duty or obligation to enforce such
rules and regulations, or the terms, conditions or covenants contained in any
other lease, as against any other tenant, and Landlord shall not be liable to
Tenant for violation of the same by any other tenant, its employees, agents, or
invitees.
10.6 MISCELLANEOUS COVENANTS AND AGREEMENTS.
Tenant further agrees that:
No sign, advertisement or notice shall be inscribed, painted or affixed on any
part of the outside or inside of the Demised Premises or Building, except on the
directories and doors of offices, and then only in such size, color and style as
the Landlord shall reasonably approve.
Landlord shall have the right to prescribe the weight, and method of
installation and position of safes or other heavy items forming part of the
Tenant Fixtures, Equipment and Alterations. Tenant shall not install any Tenant
Fixtures, Equipment and Alterations that will place a load upon any floor
exceeding the load per square foot area which such floor was designed to carry.
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All damage done to the Building by taking in or removing any Tenant Fixtures,
Equipment and Alterations, or due to its being in the Demised Premises, shall be
repaired at the expense of Tenant.
No freight, furniture or other bulky matter of any description shall be received
into the Building or carried in the elevators, except as approved by Landlord.
All moving of Tenant Fixtures, Equipment and Alterations shall be under the
direct control and supervision of the Landlord, who shall, however, not be
responsible for any damage to or charges for moving same.
10.7 LANDLORD ENTRY FOR REPAIRS AND INSPECTION.
Tenant shall permit Landlord, or its representative(s), to enter the Demised
Premises at all reasonable times to examine and inspect same, and to make such
alterations and/or repairs as in the judgement of Landlord may be deemed
necessary, or to exhibit the same to prospective tenants, purchasers or
mortgagees. If, in an emergency, it shall become necessary to make promptly any
repairs or replacements required to be made by Tenant, then Landlord may, at its
option, proceed forthwith to have such repairs or replacements made and to pay
the cost thereof for Tenant's account. Tenant shall reimburse Landlord for the
cost of such repairs or replacements on demand. There shall be no abatement of
Rent and no liability by reason of any injury to or interference with Tenant's
business arising from the making of any examinations, exhibitions, inspections,
repairs, alterations or improvements in or to any portion of the Demised
Premises or the Project.
ARTICLE 11
TENANT'S INSURANCE
11.1 COVERAGE.
During the term of this Lease, Tenant shall obtain, pay the premiums for, and
maintain in full force and effect the following types of insurance:
(a) Comprehensive Liability. A general comprehensive liability
insurance policy including contractual and independent contractors extension or
policies, naming Landlord and any mortgagee or ground lessor of the Building as
additional insured parties, protecting Landlord in the amount of One Million and
No/100 Dollars ($1,000,000.00) combined single limit per occurrence for bodily
injuries to and/or death of any person, and for property damage, which amounts
may be increased from time to time by Landlord in its reasonable determination.
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(b) All-Risk Property. All-risk property insurance written at
replacement cost value, covering all of Tenant's personal property in the
Demised Premises (including, without limitation, inventory, trade fixtures,
floor coverings, furniture and other property removable by Tenant under the
provisions of this Lease) and all leasehold improvements installed in the
Demised Premises. With respect to all damaged leasehold improvements any and all
proceeds of such insurance, so long as this Lease shall remain in effect, shall
be used only to repair or replace the items so insured.
(c) Worker's Compensation. If and to the extent required by law,
worker's compensation or similar insurance in form and amounts required by law
including Employer's Liability insurance in the amount of $100,000 for any one
occurrence.
11.2 POLICY REQUIREMENTS.
All insurance policies required to be procured by Tenant under this Lease: (I)
shall be issued by responsible insurance companies licensed to do business in
the jurisdiction in which the Building is located and shall be in such form and
content as approved by Landlord; (II) shall be written as primary policy
coverage and not contributing with or in excess of any coverage which Landlord
may carry; (III) shall provide that the policy shall not be canceled unless
Landlord shall have received thirty (30) day's prior written notice of
cancellation; and (IV) shall waive insurer's rights of subrogation against
Landlord, its agents and employees, including any mortgagee or any other
interested party designated by Landlord.
With respect to each and every one of the insurance policies required to be
procured by Tenant under this Lease, on or before the Lease Commencement Date
(or as soon thereafter as possible), and at least thirty (30) days before the
expiration of the expiring certificates of insurance previously furnished,
Tenant shall deliver to Landlord certificates of insurance for each such policy
or renewal thereof, or such other evidence that may be satisfactory to Landlord
and the holder of any first deed of trust on the Building.
11.3 LANDLORD'S RIGHT TO MAINTAIN COVERAGE.
In the event Tenant shall fail to provide such insurance, or shall fail to pay
the premiums when due, Landlord shall have the right to cause such insurance to
be issued and to pay the premiums therefor, or any premiums in default, and to
collect same from Tenant together with interest on the amount of such premiums
from the date of payment by Landlord until the date of repayment by Tenant at
the Default Rate (as defined in SECTION 14.14).
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11.4 INSURANCE COVERAGE DOES NOT LIMIT TENANT'S LIABILITY.
Neither the issuance of any insurance policy required under this Lease nor the
minimum limits specified herein shall be deemed to limit or restrict in any way
Tenant's liability arising under or out of this Lease.
11.5 COMPLIANCE WITH INSURANCE REQUIREMENTS.
Tenant shall comply with all requirements of Landlord's and Tenant's insurance
carriers and shall not do or permit to be done any act or thing upon the Demised
Premises that will invalidate or be in conflict with fire insurance policies
covering the Building or any part thereof, fixtures and property in the Building
or the Demised Premises or any other insurance policies or coverage referred to
in this ARTICLE 11, and shall comply with all rules, orders, regulations or
requirements of the Board of Fire Underwriters having jurisdiction, or any other
similar body in the case of such fire insurance policies, and the applicable
insurance rating bureau or similar body in the case of all other such insurance
policies.
11.6 WAIVER OF SUBROGATION.
Neither Landlord nor Tenant shall be liable to the other for any loss or damage
to property or injury to or death of persons occurring on the Demised Premises
or the Building, or in any manner growing out of or connected with the Tenant's
use and occupation of the Demised Premises or the condition thereof, whether or
not caused by the negligence or other fault of Landlord or Tenant or of their
respective agents, employees, subtenants, licensees, or assignees (collectively,
"Non-Subrogated Loss").
This release shall apply only to the extent that such Non-Subrogated Loss is
covered by insurance required to be carried by Tenant under this Article 11 and
insurance required to be carried by Landlord under Section 13.1, regardless of
whether such insurance is payable to or protects Landlord or Tenant or both.
Nothing in this Section 11.6 shall be construed to import any greater liability
or indemnification obligation upon either Landlord or Tenant than would have
existed in the absence of this Section 13.1.
Each party required to obtain insurance under Article 11 and Section 13.1 shall
obtain policies with a clause to the effect that this release shall not affect
the right of the insured to recover under such policies.
ARTICLE 12
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UTILITIES, SERVICES AND SERVICE DISCLAIMER
12.1 GENERAL PROVISIONS APPLICABLE TO LANDLORD SERVICES; DEFINITION OF
BUSINESS HOURS.
Landlord agrees to furnish only such services as may specifically be required of
Landlord by this ARTICLE 12 of the Lease, and no other.
Services specified in this ARTICLE 12 shall be provided during Business Hours
only. As used herein "Business Hours" means Monday through Friday, from 7:00
a.m. through 6:00 p.m., exclusive of Federal holidays.
12.2 ELECTRICAL CURRENT, HEATING AND AIR CONDITIONING.
(a) Landlord's Obligation. Landlord shall furnish reasonably adequate
electric current sufficient for (1) standard lighting and the operation of
low-wattage office machines (such as desktop micro-computers, desktop
calculators, and typewriters) during Business Hours; (2) standard heat and air
conditioning reasonably required for the comfortable occupation of the Demised
Premises during Business Hours; and (3) access and elevator service twenty four
hours a day. Landlord shall not be obligated to furnish more power to the
Demised Premises than allocated thereto under the Building design.
(b) Tenant's Obligation. Tenant shall arrange to purchase and pay for
all of Tenant's electric current requirements that exceed the standard basic
requirements set forth in SECTION 12.2(a) above.
(c) After Hours Heating and Air Conditioning. Provided that Tenant
gives Landlord appropriate advance notice, Landlord shall provide overtime
heating or air conditioning beyond Business Hours. Tenant shall pay Landlord for
such overtime use on the basis of Landlord's actual cost per hour.
Notwithstanding the foregoing, Tenant shall be entitled to use overtime heating
or air conditioning on Saturdays, Sundays and holidays without charge, up to a
maximum of 20 days per calendar year (or pro-rated portion thereof for less than
a full year). [The pro-rated portion for the 1996 calendar year is 15 days.]
12.3 OTHER LANDLORD SERVICES.
Landlord shall furnish reasonably adequate water, lavatory supplies for
restrooms in Common Areas, and normal and usual cleaning and trash removal
service.
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12.4 UTILITY CHARGES IN EXCESS OF BASIC SERVICE; METERS.
Tenant shall pay all charges for electricity, water, and other utilities used by
Tenant on the Demised Premises in excess of the basic service utilities to be
provided by Landlord under this ARTICLE 12. Landlord may install a separate
water or electric meters to measure the amount of water or electricity consumed
upon the Demised Premises. The cost of any such meters and of installation,
maintenance and repair thereof shall be paid for by Tenant. Tenant shall pay
Landlord promptly upon demand therefor by Landlord for all water and electricity
consumed as shown by said meters, in excess of the basic service utilities to be
provided by Landlord under this ARTICLE 12.
12.5 SERVICES DISCLAIMER.
Landlord shall not be liable for damages for failure, interruption or slow-down
of: (i) heat, (ii) hot or cold water, (iii) air conditioning, (iii) sewer
service, (iv) electric current, (v) gas, or (vi) any other service -- caused by
reason of: (1) breakdown or interruption of plant, equipment, or apparatus, (2)
shut-down of any services for necessary repairs or alterations, (3)
unavailability of fuel, water or any other substance or utility, (4) war or
civil disturbance, (5) strike or lockout, (6) fire, flood or casualty, (7)
governmental regulations, or (8) any other conditions beyond Landlord's control.
Any security measures that Landlord may elect to undertake in and about the
Project are understood to be for the protection and preservation of the Building
and Real Property only and shall not be relied upon by the Tenant for the
protection in either its person or property or that of its guests, invitees or
employees, and no liability shall be imposed on the Landlord, its agents or
employees in connection therewith.
ARTICLE 13
CASUALTY AND CONDEMNATION
13.1 FIRE AND OTHER CASUALTY DAMAGE TO DEMISED PREMISES.
If the Demised Premises shall be partially damaged by fire or other cause
covered by extended coverage insurance, other than by the fault or neglect of
Tenant, Landlord shall as soon as practicable after such damage occurs (taking
into account the time necessary to effectuate a satisfactory settlement with any
insurance company) repair such damage, and the rent shall be reduced in
proportion to the floor area of the Demised Premises which is usable by Tenant
until such repairs are completed; provided, however, that (i) in no event shall
Landlord have any repair obligations in excess of insurance proceeds actually
received by Landlord, plus any deductible payable by Landlord under applicable
insurance policies, and (ii) Tenant's rental
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obligation shall ▇▇▇▇▇ only to the extent of the proceeds actually received by
Landlord under its rental reimbursement insurance policy. If the Demised
Premises are substantially damaged by fire or other cause to such extent that
(in Landlord's reasonable estimation) the damage cannot be fully repaired within
one hundred twenty (120) days from the date of such damage, Landlord shall have
the option of electing not to repair the damage and terminating this Lease by
giving written notice to Tenant of such decision and the term of this Lease
shall terminate ten (10) days after such notice is given. No compensation or
reduction of rent will be allowed or paid by Landlord by reason of
inconvenience, annoyance, or injury to business arising from the necessity of
repairing the Demised Premises or any portion of the Building.
In connection with this Section 13.1, Landlord covenants and agrees that it
shall maintain commercially reasonable property insurance on the Building in a
commercially reasonable amount.
13.2 CONDEMNATION.
If the whole or a substantial part of the Demised Premises shall be taken or
condemned by any governmental authority for any public or quasi-public use or
purpose, then the term of this Lease shall cease and terminate as of the date
when title vests in such governmental authority, and Tenant shall have no claim
against Landlord (or otherwise) for any portion of the amount that may be
awarded as damages as a result of such taking or condemnation or for the value
of any unexpired term of the Lease; provided, however, that Tenant may assert
any claim that it may have against the condemning authority for compensation for
any fixtures owned by Tenant and for any relocation expenses compensable by
statute. The Rent, however, shall be abated on the date when such title vests in
such governmental authority. If less than a substantial part of the Demised
Premises is taken or condemned by any governmental authority for any public or
quasi-public use or purpose, the Rent shall be adjusted on a square footage
basis on the date when title vests in such governmental authority and the Lease
shall otherwise continue in full force and effect. For purposes hereof, a
substantial part of the Demised Premises shall be considered to have been taken
if more than fifty percent (50%) of the Demised Premises are unusable by Tenant.
ARTICLE 14
TENANT EVENTS OF DEFAULT AND LANDLORD REMEDIES
14.1 EVENTS OF DEFAULT DEFINED.
Each of the following events shall be a default ("Event of Default") of Tenant
under this Lease:
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(a) Minimum Rent Event of Default: Failure of Tenant to make any
payment of Minimum Rent when due.
(b) Additional Rent Event of Default: Failure of Tenant to make any
payment of any other sums due by Tenant under this Lease when due.
(c) Covenant Events of Default: Failure of Tenant to perform or comply
with any provisions of this Lease to be performed or complied with by Tenant,
other than provisions for the payment of Minimum Rent or other sums due under
this Lease, where such failure shall continue for a period of ten (10) days
after written notice thereof by Landlord to Tenant.
(d) Lease Attachment: The taking of this Lease or the Demised Premises,
or any part thereof, upon execution or by other process of law directed against
Tenant, or upon or subject to any attachment at the insistence of any creditor
of or claimant against Tenant, which execution or attachment shall not be
discharged or disposed of within thirty (30) days after the levy thereof.
(e) Bankruptcy Events: The involvement of Tenant, or any guarantor of
Tenant's obligations hereunder, in financial difficulties as evidenced by:
(I)its admitting in writing its inability to pay debts generally as they become
due; (II) its filing a petition in bankruptcy or for reorganization or for the
adoption of an arrangement under the Bankruptcy Act (as now existing or in the
future amended), or an answer or other pleading admitting the material
allegations of such a petition or seeking, consenting to or acquiescing in the
relief provided for under such Act; (III) its making an assignment of all or a
substantial part of its property for the benefit of its creditors; (IV) its
seeking or consenting to or acquiescing in the appointment of a receiver or
trustee for all or a substantial part of its property or of the Demised
Premises; (V) its being adjudicated a bankrupt or insolvent; or (VI) the entry
of a court order without its consent, which order shall not be vacated, set
aside or stayed within sixty (60) days from the date of entry, appointing a
receiver or trustee for all or a substantial part of its property or approving a
petition filed against it for the effecting of an arrangement in bankruptcy or
for a reorganization pursuant to the Bankruptcy Act or for any other judicial
modification or alteration of the rights of creditors.
14.2 EVENTS OF DEFAULT NOT AFFECTED BY SECURITY DEPOSIT OR ACCEPTANCE OF
RENT.
The provisions of this ARTICLE 14 shall apply notwithstanding the payment by
Tenant of a Security Deposit and/or the continued willingness and ability of
Tenant to pay Rent and otherwise perform hereunder. The receipt by Landlord of
payments of Rent, as
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such, accruing subsequent to the time of an Event of Default shall not be deemed
a waiver by Landlord of its rights and remedies under this ARTICLE 14.
14.3 REMEDIES UPON EVENT OF DEFAULT.
Upon the occurrence of an Event of Default, Landlord shall have the right, at
its election, then or at any time thereafter either:
(a) Termination of Lease: To give Tenant written notice of Landlord's
intent to terminate this Lease on the date of the notice or on any later date
specified in the notice, and on such date Tenant's right to possession of the
Demised Premises shall cease and this Lease shall thereupon be terminated; or
(b) Reentry and Possession: Without demand or notice, to reenter and
take possession of all or any part of the Demised Premises, and expel Tenant and
those claiming through Tenant, and remove the property of Tenant and any other
person, either by summary proceedings or by action at law or in equity, without
being deemed guilty of trespass and without prejudice to any remedies for
nonpayment or late payment of Rent or breach of covenant. If Landlord elects to
reenter under this subsection, Landlord may terminate this Lease, or, from time
to time, without terminating this Lease, may relet all or any part of the
Demised Premises as agent for Tenant for such term or terms and at such rental
and upon such other terms and conditions as Landlord may deem advisable, with
the right to make alterations and repairs to the Demised Premises. No such
reentry or taking of possession of the Demised Premises by Landlord shall be
construed as an election on Landlord's part to terminate this Lease unless a
written notice of such intention is given to Tenant under SECTION 14.3(A), or
unless the termination be decreed by a court of competent jurisdiction at the
request of Landlord.
(c) Waiver of Notice, Redemption, Repossession and Restoration of
Lease: Tenant, on its own behalf and on behalf of all persons claiming through
Tenant, including all creditors, does hereby waive any and all rights and
privileges, so far as its permitted by law, which Tenant and all such persons
might otherwise have under any present or future law (I) to the service of any
notice of intention to reenter which may otherwise be required to be given, (II)
to redeem the Demised Premises, (III) to reenter or repossess the Demised
Premises, or (IV) to restore the operation of this Lease, with respect to any
dispossession of Tenant by judgment or warrant of any court, whether such
dispossession, reentry, expiration or termination be by operation of law or
pursuant to the provisions of this Lease.
14.4 LIABILITY OF TENANT.
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If Landlord terminates this Lease pursuant to SECTION 14.3, Tenant shall remain
liable (in addition to accrued liabilities) for:
(A) (i) Minimum Rent and any other sums provided for in this Lease until
the date this Lease would have expired had such termination not
occurred; (ii) any and all reasonable expenses (including attorney's
fees, disbursements and brokerage fees) incurred by Landlord in
reentering and repossessing the Demised Premises, in curing any Event
of Default, in painting, altering, repairing or dividing the Demised
Premises, in protecting and preserving the Demised Premises by use of
watchmen and caretakers, and in reletting the Demised Premises; and
(iii) any and all reasonable expenses which Landlord may incur during
the occupancy of any new tenant;
LESS:
(B) The net proceeds of any reletting prior to the date this Lease would
have expired if it had not been terminated.
Tenant agrees to pay to Landlord the difference between ITEMS (A) AND (B) above
for each month during the term, at the end of each such month. Any suit brought
by Landlord to enforce collection of such difference for any one month shall not
prejudice Landlord's right to enforce the collection of any difference for any
subsequent month. Tenant's liability shall survive the institution of summary
proceedings and the issuance of any writ of restitution thereunder.
14.5 LIQUIDATED DAMAGES.
If Landlord terminates this Lease pursuant to this ARTICLE 14, Landlord shall
have the right, at any time, at its option, to require Tenant to pay to
Landlord, on demand, as liquidated and agreed final damages in lieu of Tenant's
liability under SECTION 14.4 the rent and all other charges which would have
been payable from the date of such demand to the date when this Lease would have
expired if it had not been terminated, minus the fair rental value of the
Demised Premises for the same period. If the Demised Premises shall have been
relet for all or part of the remaining balance of the term by Landlord after an
Event of Default but before determination of such liquidated damages, the amount
of rent received upon such reletting shall be deemed the fair rental value of
the Demised Premises for purposes of the foregoing determination of liquidated
damages. Upon payment of such liquidated and agreed final damages, Tenant shall
be released from all further liability under this Lease with respect to the
period after the date of demand.
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14.6 ATTORNEY'S FEES.
In the event Tenant defaults in the performance of any of the terms, covenants,
agreements or conditions contained in this Lease and Landlord places the
enforcement of this Lease, or any part thereof, or the collection of any Rent
due, or to become due hereunder, or recovery of the possession of the Demised
Premises in the hands of an attorney, or files suit upon the same, Tenant agrees
to pay Landlord reasonable attorneys' fees.
14.7 NO JURY TRIAL; ARBITRATION.
Tenant waives all right to trial by jury in any proceeding which may be
instituted by Landlord against Tenant arising under or by virtue of this Lease.
Any dispute between Landlord and Tenant relating to this Lease, other than
summary ejectment (or similar proceedings) for non-payment of Rent, shall be
resolved by means of binding arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator(s) may be entered in any court of competent
jurisdiction. Depositions may be taken and other discovery obtained during such
arbitration proceedings to the same extent as authorized in civil judicial
proceedings in the Commonwealth of Virginia. The arbitrator(s) shall be limited
to awarding compensatory damages and shall have no authority to award punitive,
exemplary or similar type damages. The arbitrators may grant injunctions or
other relief in such disputes or matters. The arbitrators shall apply the laws
of the Commonwealth of Virginia (including applicable statutory and common law).
The prevailing party in the arbitration proceeding shall be entitled to recover
its expenses, including the costs of the arbitration proceeding and reasonable
attorneys' fees.
If the purpose of arbitration is to determine the fair market value or fair
rental value of the Demised Premises or any other property or interest: (a) each
of the arbitrators shall be a member of the American Institute of Real Estate
Appraisers or the Society of Real Estate Appraisers (or any successor
organization of comparable function), and shall have at least five years
experience in the appraisal of similar properties in the Northern Virginia area,
and (b) each of the three arbitrators will submit his valuation and the value
shall be deemed to be the average of the two closest valuations by the
arbitrators.
Notwithstanding the foregoing, either party may obtain a court directed
temporary restraining order, injunction or similar relief prior to seeking
arbitration and during the
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course of arbitration, as necessary, in order to prevent irreparable harm, waste
or injury.
14.8 RIGHT TO ENJOIN, ETC.
In the event of any breach or threatened breach by Tenant or any person(s)
claiming through Tenant of any of the provisions contained in this Lease,
Landlord shall be entitled to enjoin such breach or threatened breach and shall
have the right to invoke any right or remedy allowed at law or otherwise as if
reentry, summary proceedings or other prescribed remedies were not provided for
in this Lease.
14.9 LIEN FOR RENT.
Intentionally Omitted
14.10 REMEDIES CUMULATIVE.
All rights and remedies of Landlord under this Lease shall be cumulative and
shall not be exclusive of any other rights and remedies Landlord may have in law
or equity.
14.11 NO WAIVER OF TENANT DEFAULTS.
In the event Landlord institutes proceedings under the terms of this Lease, and
a compromise or settlement thereof shall be made, the same shall not constitute
a waiver of any covenant contained in the Lease nor of any of Landlord's rights
hereunder. No waiver by Landlord of any breach of any covenant, condition or
agreement in the Lease shall operate as a waiver of such covenant, condition or
agreement, or of any subsequent breach thereof. No payment by Tenant or receipt
by Landlord of a lesser amount than the monthly installments of Rent stipulated
in this Lease shall be deemed to be other than on account of the earliest
stipulated Rent, nor shall any endorsement or statement on any check or letter
accompanying a check for payment of Rent be deemed an accord and satisfaction
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such Rent or to pursue any other remedy provided
in this Lease. No reentry by Landlord, an no acceptance by Landlord of keys from
Tenant, shall be considered an acceptance of a surrender of the Lease.
14.12 RIGHT OF LANDLORD TO CURE TENANT EVENTS OF DEFAULT.
If Tenant defaults in the making of any payment or in the doing of any act
herein required to be made or done by Tenant, taking into account applicable
cure periods, then after ten (10) days notice from Landlord, Landlord may, but
shall not be required
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to, make such payments or do such act, and collect the amount thereof from
Tenant together with interest on such amount from the date of payment by
Landlord until the date of repayment by Tenant at the Default Rate (as defined
in SECTION 14.14); but the making of such payment or the doing of such act by
Landlord shall not operate to cure such Event of Default or to estop Landlord
from the pursuit of any remedy to which Landlord would otherwise be entitled.
14.13 LATE PAYMENTS AND INTEREST.
If Tenant fails to pay any installment of Rent on or before the first day of the
calendar month when such installment is due and payable, such unpaid installment
shall bear interest at the Default Rate (as defined in SECTION 14.14), thirty
(30) days from the date such installment became due and payable to the date of
payment thereof by Tenant. Such interest shall constitute additional sums dues
under this Lease and payable with the next monthly installment of Rent. In
addition, Tenant shall pay to Landlord, as a "late charge" five percent (5%) of
any payment herein required to be made by Tenant which is more than ten (10)
days late to cover the costs of collecting accounts past due.
14.14 DEFINITION OF DEFAULT RATE.
As used herein, "Default Rate" means the lower of: (i) the average prime lending
rate as reported by the Wall Street Journal, plus 2%, or (ii) the maximum rate
permitted by law.
ARTICLE 15
SUBORDINATION, ATTORNMENT AND RELATED PROVISIONS
15.1 SUBORDINATION.
(a) Subordination Generally; Tenant's Certificate: This Lease is
subject and subordinate to all ground or underlying leases and to all mortgages
and/or deeds of trust which may now or hereafter affect such leases or the Real
Property of which the Demised Premises are a part, and to all renewals,
modifications, consolidations, replacements and extensions thereof. This clause
shall be self-operative and no further instrument of subordination shall be
required by any mortgagee or trustee. In confirmation of such subordination,
Tenant shall execute promptly any certificate that the Landlord or the party
secured by any deed of trust, or any successor in interest may request. Tenant
hereby constitutes and appoints Landlord as Tenant's attorney-in-fact to execute
any such certificate or certificates on behalf of Tenant.
(b) Provisions Applicable to Mortgage or Deed of Trust Subordination:
Notwithstanding the foregoing, the party secured by any such deed of trust shall
have
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the rights to recognize this Lease and, in the event of any foreclosure
sale under such deed of trust, this Lease shall continue in full force and
effect at the option of the party secured by such deed of trust or the purchaser
under any such foreclosure sale. Tenant covenants and agrees that it will, at
the written request of the party secured by any such deed of trust, execute,
acknowledge and deliver any instrument that has for its purpose and effect the
subordination of said deed of trust to the lien of this Lease. The party secured
by such deed of trust and any successor in interest shall not be bound by any
payment in Rent in advance for more than thirty (30) days or by any amendment or
modification of this Lease made subsequent to the date of recordation of such
deed of trust without the consent of the party secured by such deed of trust or
such successor in interest.
(c) Provisions Applicable to Ground or Underlying Lease Subordination:
At the option of any landlord under any ground or underlying lease to which the
Lease is now or may hereafter become subject or subordinate, Tenant agrees that
neither the cancellation nor termination of such ground or underlying lease
shall by operation of law or otherwise, result in cancellation or termination of
this Lease or the obligations of the Tenant hereunder, and Tenant covenants and
agrees to attorn to such landlord or to any successor to Landlord's interest in
such ground or underlying lease, and in that event, this Lease shall continue as
a direct lease between the Tenant herein and such landlord or its successor.
Such landlord or successor under such ground or underlying lease shall not be
bound by any prepayment on the part of Tenant of any Rent for more than one
month in advance, so that Rent shall be payable under this Lease in accordance
with its terms, from the date of the termination of the ground or underlying
lease, as if such prepayment had not been made. Such landlord or successor under
such ground or underlying lessee shall not be bound by this Lease or any
amendment or modification of this Lease unless, prior to the termination of such
ground or underlying lease, a copy of this Lease or amendment or modification
thereof, as the case may be, shall have been delivered to such landlord or
successor.
15.2 ESTOPPEL CERTIFICATES.
Tenant agrees, at any time and from time to time, upon not less than five (5)
days prior written notice by Landlord, to execute, acknowledge and deliver to
Landlord a statement in writing (i) certifying that this Lease has been
unmodified since its execution and is 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, if any, to which the Rent
and sums hereunder have been paid by Tenant, (iii) stating whether or not to the
knowledge of Tenant, there are then existing any Landlord or Tenant defaults
under the Lease (and, if so, specifying the same), and (iv) stating the address
to which notices to Tenant should be sent. Any such statement delivered
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pursuant hereto shall provide that such statement may be relied upon by Landlord
or any prospective purchaser or mortgagee of the Project or any part therein.
Tenant's failure to execute and deliver such statement within the time specified
shall be deemed the equivalent of the delivery of a statement to the effect that
Landlord is in full compliance with the terms of this Lease. Furthermore, in the
event Tenant fails or refuses to execute and deliver such statement, Landlord
may, as the attorney and agent of the Tenant, execute such statement and in such
event the Tenant hereby confirms and ratifies any such statement so executed.
15.3 MODIFICATION OF LEASE FOR FINANCING REQUIREMENTS.
In the event that any person or entity now or hereafter providing financing to
Landlord for the Project requires, as a condition of such financing, that this
Lease be modified, Landlord shall submit such required modifications to Tenant,
and Tenant shall enter into and execute a written amendment hereto incorporating
such required modifications within fifteen (15) days after the same has been
submitted to Tenant by Landlord, provided, that, such modifications (a) are
reasonable, (b) do not adversely affect Tenant's use of the Demised Premises as
herein permitted, (c) do not materially affect any of the provisions of this
Lease as determined in Tenant's reasonable discretion, and (D) do not increase
the rentals and other sums required to be paid by Tenant hereunder.
ARTICLE 16
LIMITATION OF LANDLORD'S LIABILITY; TENANT INDEMNITY OBLIGATIONS
16.1 NO PERSONAL OBLIGATIONS; LIABILITY LIMITED TO BUILDING.
The obligations of Landlord under this Lease do not constitute personal
obligations of the directors, officers, or shareholders of Landlord, and Tenant
shall look solely to the real estate that is the subject of this Lease and to no
other assets of the Landlord for satisfaction of any liability in respect of
this Lease and will not seek recourse against the directors, officers or
shareholders of Landlord or any of their personal assets for such satisfaction.
16.2 FORCE MAJEURE.
Landlord shall not be required to perform any of its obligations under this
Lease, nor be liable for loss or damage for failure to do so, nor shall Tenant
be released from any of its obligations under this Lease, where such failure
arises from or through acts of God, strikes, lockouts, labor difficulties,
explosions, sabotage, accidents, riots, civil commotions, acts of any foreign
country, fire and casualty, legal requirements, energy
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shortage, or causes beyond the reasonable control of Landlord, unless such loss
or damage results from willful misconduct or gross negligence by Landlord.
16.3 NO LIABILITY FOR DAMAGE TO PERSONAL PROPERTY AND PERSON.
All property of Tenant, its agents or invitees, or of any other person, in or on
the Demised Premises or the Project, shall be and remain at the sole risk of
Tenant or such agent, invitee or person. Landlord shall not be liable for any
damage to or theft or loss of such property, whether or not caused by the act or
omission of any person, or by the bursting, leaking or overflowing of water,
sewer, steam or sprinkler pipes, heating or plumbing fixtures, air conditioning
or heating failure, gas, noxious odors or noise, or any other act or thing.
Landlord shall not under any circumstances be liable for the interruption or
loss of Tenant's business that may result from any of the acts or causes
described above. Landlord shall not be liable for any personal injury to Tenant,
its agents or invitees, or to any other persons, arising from the use, occupancy
or condition of the Demised Premises, the Building or the Real Property other
than liability for personal injuries resulting directly from the gross
negligence or willful misconduct of Landlord, and then only to the extent that
Tenant is not compensated therefor by insurance.
16.4 TENANT'S INDEMNITY OBLIGATIONS.
Tenant shall indemnify Landlord and its agents and employees and save it
harmless from and against any and all claims, actions, damages, liabilities and
expense (including reasonable attorneys fees) in connection with loss of life,
personal injury or damage to property arising from, resulting from, or related
to (in whole or in part): (i) any occurrence in, upon or at the Demised
Premises, or (ii) the occupancy or use by Tenant (including Tenant's agents,
contractors, employees, servants, permitted subtenants, invitees or licensees)
of the Demised Premises, the Common Areas or any part of the Project, or (iii)
any act or omission of Tenant, its agents, contractors, employees, servants,
permitted subtenants, invitees or licensees, or (iv) any Event of Default,
breach, violation or nonperformance of this Lease by Tenant (collectively, (i)
through (iv), hereinafter referred to as "Tenant Indemnity Obligations").
In the event that Landlord or its agents and employees shall, without fault on
its part, be made a party to any litigation commenced by or against Tenant or
relating to any Tenant Indemnity Obligations, then Tenant shall protect and hold
Landlord harmless and shall pay all costs, expenses and reasonable attorney's
fees incurred or paid in connection with such litigation. Tenant shall pay,
satisfy and discharge any and all judgments, orders and decrees which may be
entered or recovered against Landlord in connection with the foregoing.
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ARTICLE 17
PARKING
17.1 ALLOTTED PARKING AND DESIGNATED PARKING AREAS.
So long as Tenant is not in default under this Lease, Landlord hereby grants to
Tenant a non-exclusive license (the "Parking License") to park three (3) cars
for every 1,000 square feet of office space = thirty (30) cars ("Allotted
Parking"), for use solely by Tenant and Tenant's employees, guests and invitees
in the spaces which will hereafter be designated by Landlord (the "Designated
Parking Areas"). The use by Tenant, its employees, guests or invitees of more
than the Allotted Parking after thirty (30) days notice by Landlord ("Over-Use")
shall be deemed an Event of Default under this Lease and Landlord may exercise
such remedies as are provided pursuant to ARTICLE 14 of the Lease. Landlord
shall not be responsible to Tenant for enforcing the Parking License or
violation of the provisions of this ARTICLE 17 by co-tenants of the Building, by
third parties, or guests or visitors to the Building.
Tenant's Designated Parking Areas include: Two (2) cars in underground parking
garage (in spots to be determined by Landlord) and twenty-eight (28) cars in
outside parking area (in spots to be determined by Landlord).
17.2 REVOCATION OR REDUCTIONS OF PARKING LICENSE.
Landlord shall have the right to: (i) revoke the Parking License in the event of
an Over-Use; or (ii) in the event of any occurrence not caused by Landlord which
reduces the number of parking spaces in the Designated Parking Area, reduce the
Allocated Parking (with no adjustment to Rent) to the extent of Tenant's
proportionate share of the number of parking spaces by which the Designated
Parking Area is so reduced.
17.3 NO LIABILITY FOR DAMAGE TO VEHICLES.
Landlord shall not be liable for damage to any vehicle using the parking
facilities pursuant to this Lease, including theft, collision, fire, or any
other damage to such vehicle; Landlord shall not be responsible for articles
left in such vehicles; Landlord shall not be liable for loss of use of any such
vehicles which may be damaged while using the parking facilities. In addition,
Landlord shall not be liable for any injury to any person using the parking
facilities regardless of the cause of such injury; all persons using the parking
facilities shall do so at their own risk. Tenant shall indemnify and hold
Landlord and its agents harmless from all loss, damage, liability, cost or
expense incurred, suffered, or claimed by any person or entity by reason of
injury, loss or
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damage to any person, property, or business resulting from the Tenant's
negligence or negligent or unlawful use of the parking facilities.
17.4 PARKING LICENSE NOT ASSIGNABLE.
The Parking License may not be assigned by the Tenant without the prior written
consent of Landlord.
ARTICLE 18
RENEWAL AND EXTENSION OPTIONS
Not Applicable
ARTICLE 19
HOLDING OVER
Tenant will have no right to remain in possession of all or any part of the
Demised Premises after the expiration of the term of this Lease. If Tenant
remains in possession of all or any part of the Demised Premises after the
expiration of the term, with the express or implied consent of Landlord: (a)
such tenancy will be deemed to be a periodic tenancy from month-to-month only;
(b) such tenancy will not constitute a renewal or extension of this Lease for
any further term; and (c) such tenancy may be terminated by Landlord upon the
earlier of 30 days' prior written notice or the earliest date permitted by law.
In such event, Minimum Rent will be increased to an amount equal to 200% of the
Minimum Rent payable during the last month of the term, and any other sums due
under this Lease will be payable in the amount and at the times specified in
this Lease. Such month-to-month tenancy will be subject to every other term,
condition, and covenant contained in this Lease. In addition, Tenant shall pay
to Landlord all costs and damages incurred by Landlord as a result of Tenant's
holding over, which shall be deemed additional sums due under this Lease.
ARTICLE 20
MISCELLANEOUS
20.1 BROKERS.
Tenant represents and warrants that it has not dealt with any broker in
connection with this Lease and that insofar as Tenant knows, no other broker
participated in or negotiated this Lease or is entitled to any commission in
connection therewith and Tenant agrees to defend, indemnify and hold Landlord
harmless from any claims by
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any broker alleging to have acted on behalf of Tenant. The execution and
delivery of this Lease by Landlord shall be conclusive evidence that Landlord
has relied upon the foregoing representation and warranty in making this Lease.
20.2 NOTICES.
All notices or other communications hereunder shall be in writing and shall be
deemed duly given if delivered in person or sent by certified or registered
mail, return receipt requested, first class, postage prepaid, as follows:
(a) If to Landlord:
RHI Holdings, Inc.
Washington Dulles International Airport
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as Landlord may designate from time to time by
notice to Tenant given pursuant to the provisions of this Section.
(ii) If to Tenant:
At the Demised Premises, or to such other address as Tenant may
designate from time to time by notice to Landlord given pursuant to the
provisions of this Section.
20.3 COVENANTS OF LANDLORD.
Landlord covenants that it has the right to make this Lease, and that if Tenant
shall pay the rental and perform all of Tenant's obligations under this Lease,
Tenant shall, during the term hereof, freely, peaceably and quietly occupy and
enjoy the full possession of the Demised Premises without molestation or
hindrance by Landlord or any party claiming through or under Landlord.
20.4 SUCCESSORS AND ASSIGNS.
The terms, covenants and conditions hereof shall be binding upon and inure to
the successors in interest and assigns of the parties hereto. Landlord may
freely and fully assign its interest hereunder. The term "Landlord" as used
throughout this Lease shall mean solely the owner of Landlord's interest in the
Building, whomever that may be at the relevant time, so that in the event of any
sale or transfer of Landlord's interest in the Building any prior Landlord shall
be freed and relieved of all covenants and obligations
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of Lessor hereunder.
20.5 TIME OF THE ESSENCE.
Time is of the essence with respect to Tenant's monetary obligations in this
Lease.
20.6 NO RECORDATION.
Tenant's recordation of this Lease or any memorandum or short form Lease will be
void and a default hereunder.
20.7 CAPTIONS.
The captions of the various articles and sections of this Lease are for
convenience only and do not define, limit, describe, or construe the contents of
such articles or sections.
20.8 LANDLORD APPROVALS.
Whenever in this Lease action or approval on the part of the Landlord is
required or optional, it is understood that such action or approval may require
that such action be taken or approval given on terms acceptable to Landlord's
mortgagee and ground lessor.
20.9 LANDLORD'S FEES.
Whenever Tenant requests Landlord to take any action or give any consent
required or permitted under this Lease, Tenant will reimburse Landlord for all
of Landlord's reasonable costs incurred in reviewing the proposed action or
consent, including without limitation reasonable attorneys', engineers' or
architects' fees, within 10 days after Landlord's delivery to Tenant of a
statement of such costs. Tenant will be obligated to make such reimbursement
without regard to whether Landlord consents to any such proposed action.
20.10 ENTIRE AGREEMENT.
This Lease, together with the Exhibits and any Addenda attached hereto, contain
and embody the entire agreement of the parties hereto, and no representations,
inducements, or agreements, oral or otherwise, between the parties not contained
in this Lease and Exhibits and Addenda, shall be of any force or effect. This
Lease may not be modified, changed or terminated in whole or in part in any
manner other than by an agreement in writing duly signed by both parties hereto.
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20.11 APPLICABLE LAWS.
It is the agreement of the parties that this Lease is to be construed in
accordance with the laws of the Commonwealth of Virginia.
20.12 NO OPTION.
The submission of this Lease for examination by Tenant does not constitute a
reservation of or option for the Demised Premises, and this Lease shall become
effective as a Lease only upon execution and delivery thereof by Landlord and
Tenant.
20.13 PARTIAL INVALIDITY.
If any provision of this Lease or the application thereof to any person or
circumstance shall to any extent be held void, unenforceable or invalid, then
the remainder of this Lease or the application of such provision to persons or
circumstances other than those as to which it is held void, unenforceable or
invalid shall not be effected thereby, and each provision of this Lease shall be
valid and enforced to the fullest extent permitted by law.
20.14 PRONOUNS.
Feminine or neuter pronouns shall be substituted for those of the masculine
form, and the plural shall be substituted for the singular number, in any place
or places in which the context may require such substitution or substitutions.
ARTICLE 21
ENVIRONMENTAL COMPLIANCE
Tenant shall not store, treat, dispose, handle or otherwise use any hazardous or
toxic substances, wastes, or materials, or other pollutants or contaminants upon
the Demised Premises without the prior written consent of Landlord; provided,
however that Tenant shall be allowed to store and use such amounts of cleaning
fluids and lubricants as are reasonably necessary to conduct its business
activities upon the Demised Premises subject to the condition that all such
cleaning fluids and lubricants shall be stored, used, disposed of and/or removed
from the Demised Premises in compliance with manufacturer's directions and all
applicable governmental laws and regulations. Tenant shall at all times remain
fully responsible and liable for compliance with all federal, state and local
statues, ordinances, regulations and other requirements relating to human health
or the environment which are applicable to the Demised Premises and Tenant's
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use thereof, including, but not limited to, those respecting the storage,
treatment, disposal, handling, and release of hazardous or toxic substances,
wastes, or materials, or other pollutants or contaminants. Tenant agrees to
indemnify and to hold Landlord harmless from any and all claims, causes of
action, damages, penalties, and costs (including attorneys's fees, consultant
fees, and related expenses) which may be asserted against or incurred by
Landlord resulting from or related to: (i) Tenant's breach, violation or default
of the terms, conditions and covenants of this ARTICLE 21; (ii) the spill,
disposal or other release or threatened release of any hazardous or toxic
substance, waste or material, or any other pollutant or contaminant, on the
Demised Premises or the Project caused by Tenant, its employees, agents or
contractors; or (iii) any violation or alleged violation of any environmental
statute, ordinance, regulation or other requirement caused by Tenant, its
employees, agents or contractors. Tenant's obligation to indemnify and hold
Landlord harmless pursuant to this ARTICLE 21 shall survive the expiration or
termination of this Lease.
ARTICLE 22
INDEX OF DEFINED TERMS
The following terms have the meaning ascribed to them in the Sections noted
below:
Term Section Where Defined
---- ---------------------
Adjustment Dates............................................................................Section 4.1
Allotted Parking...........................................................................Section 17.1
Building....................................................................................Section 1.1
Business Hours.............................................................................Section 12.1
Common Area.................................................................................Section 1.3
CPI.........................................................................................Section 4.1
Current CPI.................................................................................Section 4.1
Default Rate..............................................................................Section 14.14
Demised Premises............................................................................Section 1.1
Designated Parking Area....................................................................Section 17.1
Event(s) of Default........................................................................Section 14.1
Landlord.........................................................................Preamble; Section 20.4
Lease..........................................................................................Preamble
Lease Commencement Date.....................................................................Section 2.1
Market Rent................................................................................Section 18.3
Minimum Rent................................................................................Section 3.1
Over-Use...................................................................................Section 17.1
Parking License............................................................................Section 17.1
Prior Year CPI..............................................................................Section 4.1
Project.....................................................................................Section 1.1
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Real Property...............................................................................Section 1.1
Renewal Term...............................................................................Section 18.1
Security Deposit............................................................................Section 6.1
Tenant Indemnity Obligations...............................................................Section 16.4
Tenant.........................................................................................Preamble
Tenant Fixtures, Equipment and Alterations.................................................Section 10.3
Tenant's Work.................................................................................Article 8
Termination Date............................................................................Section 2.1
* * *
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease
under seal as of the day and year first hereinbefore written.
LANDLORD:
RHI HOLDINGS, INC.
Attest:
------------------------------
By:
-----------------------------
Title:
--------------------------
Attest: TENANT:
BANNER AEROSPACE SERVICES, INC.
-------------------------------
By:
------------------------------
Title:
--------------------------
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Exhibit A
Demised Premises
38
Exhibit "C"
RULES AND REGULATIONS
1. Tenant and its agents and employees shall not loiter in or upon or in
any way obstruct the grounds, sidewalks, driveways or parking areas,
or the common halls, passages, exits, entrances, corridors, stairways
of elevators, in or about the Building in which the Demised Premises
are located, or use for any purpose other than for ingress to and
egress from the Demised Premises. These areas are not for the use of
the general public, and Landlord reserves the right to control and
prevent access to them by al persons whose presence in the judgement
of the Landlord will be prejudicial to the safety, character,
reputation and interests of the Building and its Tenants. However,
nothing in these Rules and Regulations shall be construed to prevent
access by persons with whom Tenant usually deals in the ordinary
course of its business, unless those persons violate the Rules and
Regulations of the Building or are engaged in illegal activities.
2. Landlord reserves the right to control ingress and egress to and from
the Building and/or to close and keep locked all entrances and exits
doors of the Building on Saturdays, Sundays and federal holidays, on
other days between the hours of 6:00 p.m. and 7:00 a.m., and during
such other times as Landlord deems advisable for the adequate security
of the Building; provided that Landlord shall not unreasonably block
access. Internal access in and use of the Building and the Demised
Premises at such times shall be subject to such rules and regulations
for use of cardkeys issued to Tenant. Tenant and its agents and
employees, and any other persons entering or leaving the Building at
such times may be required to sign the Building register, and the
security officer of agent of Landlord in charge shall have the right
to refuse admittance to any person not possessing satisfactory
identification and authorization. Landlord assumes no responsibility
with respect to and shall not be liable for any damages resulting from
any security measures, cardkey use or the admission or non-admission
of any person, authorized or unauthorized, into the Building.
3. Tenant and its agents and employees shall not make, or permit to be
made, any noise that is annoying, unpleasant or distasteful, whether
by the use of any musical instrument, radio, television set, other
audio device or otherwise, or cause or permit any unusual or
objectionable odors to be product upon or emanate form the Demised
Premises, or in any other way disturb or interfere with other Tenants
or their agents, employees or invitees.
Exhibit C
Building Rules and Regulations
Page 1
39
4. No animals, birds, bicycles or other vehicles shall be brought into or
kept within the Demised Premises or any other part of the Building.
Exhibit C
Building Rules and Regulations
Page 2
40
5. No flammable, combustible, weapons, or explosive fluid chemical or
substance shall be brought into or kept within the Demised Premises or
any other part of the Building, and Tenant and its agents and employees
shall obey and comply with all fire regulations and procedures
applicable to the Demised Premises and the Building.
6. Without prior written consent of the Landlord, Tenant and its agents
and employees shall not permit to be done any cooking upon the Demised
Premises, or any other part of the Building, other than microwave
cooking in the galley space of the Demised Premises.
7. Tenant and its agents and employees shall not throw cigar or cigarette
butts or other substances or litter of any kind in or about the
Building except in receptacles placed in it for that purpose.
8. Tenant shall not use the Demised Premises for manufacturing or storing
goods, wares or merchandise within the Demised Premises, or permit any
auction to be conducted within or upon the Demised Premises or the
Project (consisting of the Building and all Real Property and Common
Areas adjacent to the Building).
9. Furniture, equipment, safes, freight and bulky items shall be moved
into and out of the Building only with prior coordination with the
Landlord.
10. Tenants, their agents, employees and invitees shall abide by all of the
vehicle registration and parking regulations described herein. Landlord
may exercise its right to have vehicles towed at the owner's or
operator's expense for violations of this regulation.
Vehicle owners or users shall register any vehicle parked in
the Building parking areas. Information provided must be
updated in the event of any change. Unregistered vehicles are
subject to being towed. Daily parking permits are available
for temporary use vehicles.
All parking in the north (front) lot is reserved for either
visitors or designated employees. All other Tenant employees,
agents and invitees are prohibited form parking in this lot,
even for a short period of time.
The majority of spaces in the north (front) lot closest to the
Building are reserved for either designated employees or
handicapped persons. Reserved spaces are marked and
restrictions apply 24 hours a day, 7 days per week.
Exhibit C
Building Rules and Regulations
Page 3
41
Standing, stopping or parking is prohibited at the south
(rear) entrance to the Building. This area is designated as a
fire lane, handicapped entrance and pedestrian crosswalk; this
entrance also provides the only access to the basement
parking.
Loading and unloading shall be done in the designated areas
along the metal fence.
Parking in the roadway or outside of marked lanes is
prohibited.
Except in the case of a safety hazard, violations of these
regulations will result in a violation notice being affixed to
the windshield and the incident will be recorded. A second
violation will result in the vehicle being towed at the
owner's or operator's expense.
Vehicles creating a safety hazard will be towed immediately.
11. Tenants, their agents, employees, and invitees shall not smoke in the
common hallways, elevators, elevator lobbies, main lobby, and dining
room. Smoking in Tenant spaces is at the discretion of the tenants,
subject to applicable law.
Exhibit C
Building Rules and Regulations
Page 4